Calcutta High Court (Appellete Side)
Surajit Ghosh vs The State Of West Bengal & Ors on 22 March, 2013
Author: Toufique Uddin
Bench: Toufique Uddin
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IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Toufique Uddin
CRA 665 of 2004
SURAJIT GHOSH
-vs-
THE STATE OF WEST BENGAL & ORS
For Appellant : Mr. Sourav Chatterjee ,learned Amicus Curaie.
For the State : Mr. Binoy Kumar Panda
Mr. Sourendra Mahapatra
Heard on : 22.03. 2013
Judgment on : 22.03.2013
Toufique Uddin, J :
This appeal arose out of judgment and order dated 4.10.2004 and 6.10.2004 passed by the learned Additional District & Sessions Judsge, 1st Fast Track Court, Howrah and sentencing Surajit Ghosh to suffer R.I. for 7 years and to pay fine of Rs. 2,000/ and R.I. for two years and pay a fine of Rs. 1,000/- for offence under Section 304B and 498A of the Indian Penal Code respectively.
In the background of this appeal, the fact in a nutshell is as follows:- 2
The deceased aged about 19 years was married to accused Surajit Ghosh on 30.10.2001 as per own sweet accord. After marriage, the deceased Rakhi Ghosh used to go to her parents' house and state before her mother that her husband assaulted her and further her husband her parents-in-law also demanded gold ornaments and money from her parents. The deceased's father Bishnupada Sarkar took loan of Rs,. 7,000/- from his friend Bomkesh Majumdar to meet the demand of money and assured the accused that further payment of Rs. 3000/- will be made shortly to cover the demand of Rs. 10,000/-.
On 5.9.202 the deceased gave birth to a son. Accused persons abused her in filthy language and assaulted the deceased and sent to her parents' house to bring money.
In the night on 20.1.2003 the accused persons caused severe assault to the deceased Rakhi Ghosh on the ground of non-giving T.V. Set and asked her to bring from her father a sum of Rs. 5,000/- .
On 21.1.2003 in the morning at about 9-30 a.m. the deceased came to her mother and gave her son to P.W. 1 and told her that she would send her son at father-in-law's place. There was quarrel in between the accused Surajit Ghosh and deceased Rakhi Ghosh. Surajit Ghosh told the deceased to die so that he could marry second time and it was not possible for him to lead his conjugal life with the deceased. Thereafter the mother of the deceased received information at 10-30 a.m. on 21.1.2003 that the deceased set fire on her person and she was shifted to the hospital.3
A complaint was lodged.
After investigation police has submitted charge sheet under section 498A/304/34 of the Indian Penal Code.
The case was committed by the Court of learned Sub-Divisional Judicial Magistrate, Howrah to the court of the learned Sessions Judge, Howrah, who in turn transferred the case to the trial court.
On hearing of both sides, the learned Trial Court framed charge against the 5 accused persons under Section 498A/304/34 of the Indian Penal Code.
The contents of the charge were read over and explained to the accused person, who pleaded not guilty and claimed to be tried. To contest this case, the prosecution examined as many as 18 witnesses, while none was examined on the side of the defence.
However, the accused persons were examined under Section 313 of the Code of Criminal Procedure. The defence case, as appeared from the trend of cross-examination of the witnesses as well as the replies given by the accused persons at the time of examination under Section 313 of the Code of Criminal Procedure, is denial of offence with a plea of innocence.
On trial, the learned trial court convicted the present appellant by the impugned judgment.
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Now the point for consideration is if the impugned judgment suffers from any material irregularity and calls for any interference or not.
Section 498A/304B/34 of the Indian Penal Code read as under:
Section 498A of the Indian Penal Code:
498A- Husband or relative of husband of a woman subjecting her to cruelty. - Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.- For the purpose of this section, "cruelty" means-
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
Section 304B. Dowry death. - (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband 5 or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Explanation - For the purpose of this sub-section, "dowry" shall have the same meaning as in section 2 of the dowry Prohibition act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.
Section 34 of the Indian Penal Code.
Section 34 - Acts done by several persons in furtherance of common intention. - When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
In this case none came on behalf of the appellants on repeated times. That is why Mr. Sourav Chatterjee, a learned Advocate of this court was appointed Amicus Curiae to take charge of this case.
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The learned Amicus Curiae, inter alia, mainly argued on the following points :
(i) over the selfsame evidence, the other accused persons have been acquitted.
(ii) there is no link to connect the present appellant separately that he unleashed the torture on the deceased wife for non-fulfilment of further demand of dowry.
The learned Advocate of the State strongly argued that the judgment passed by the learned trial court may be maintained. To appreciate the case in a better way some pieces of evidence are required to be considered.
The FIR is exhibit 1. Therefrom I find that the accused persons used to assault and pressurise the victim to bring gold jewellery and money from her parents and also the present appellant asked her to die, so that he could marry second times.
The inquest report is Exhibit 3. It is expected that the neighbours at the time of holding inquest will ventilate what happened actually but there is no semblance of proof of demand of dowry or allegation of torture on the deceased by any of the members of the in-laws' place.
The evidence of P.W.1, the mother and P.W.2, the father are that after marriage the accused persons including the present appellant used to torture their daughter Rakhi Ghosh for non-fulfilling their demand of further money and gold ornaments. But, the fact is that they have not seen it but heard from their 7 daughter when she came and reported to them. This being the position, their evidence appears to hearsay evidence.
P.W.3 is an independent witness. On 21.1.2003 he got information that Rakhi Ghosh sustained burn injuries. He rushed to her house and joined others to shift her to hospital. He is not the eyewitness. He also heard from deceased Rakhi Ghosh that she set fire on her person due to intolerable torture caused upon her by her husband, father-in-law, mother-in-law, brother-in-law and sister-in-law i.e., accused nos.1 to 5 whom he identified. So this is also hearsay evidence.
P.W.4 heard from P.W. 1 that Rakhi Ghosh was subjected to physical and mental torture over the dowry.
P.W. 5 is another independent witness. She stated that Rakhi's mother while weeping stated to her that Rakhi was assaulted and ill treated and harassed by the accused persons over the demand of dowry.
P.W. 6 also heard the incident. He is the landlord where the victim's father is a tenant.
P.W. 7 spoke nothing about any demand of dowry or torture. He was declared hostile. So too P.Ws. 8 and 9 P.W. 10 is the scribe of the FIR Exhibit 1. He is also seizure list witness in respect of kerosene jar, one broken wall clock, kerosene stove, burnt match stick and one burnt blouse etc. He is a para people.
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P.W. 11 is also another seizure witness in respect of photograph of deceased Rakhi Ghosh.
P.W. 12 is a formal witness.
P.W. 13 is a man who stated that P.W. 2 the father of victim requested him to pay Rs. 10,000/- for the purpose of paying the same to his daughter and son- in- law. He heard about the death of Rakhi Ghosh but did not see the demand of dowry or torture.
P.W. 14 is the Doctor, who stated that victim girl sustained 100% burnt injuries and he issued the death certificate (Exhibit 6).
P.W. 15 is another Doctor , who stated that the patient was in conscious stage while she was treated but why any dying declaration was not taken, has not been explained neither by him or any other witnesses when it appears that the victim when taken to hospital having burnt injuries was conscious.
P.W. 16 is the Magisterial inquest over the death of Rakhi Ghosh. He stated that father of the deceased made no complaint about the death of Rakhi Ghosh.
P.W. 17 is the Investigating Officer. After investigation he submitted charge sheet.
P.W. 18 is a formal police witness.
From the materials on record the following facts remain established:
1) the deceased was married to the present appellant. 9
2) the deceased breathed her last by setting fire on her person in her in-
laws' place within a span of 7 years.
So obviously, a presumption arises that the death might have caused due to the torture concerning demand of dowry done by the members of in-laws' place. But whether presumption under Section 113 of the Evidence Act can take the place of proof. The simple answer is - it cannot. If the case is established then rebuttal clause may be resorted to. In this case the nature of the evidence has already been discussed as above. Moreover, any statement given by the deceased prior to her death regarding the torture given to the parents or acquaintances are inadmissible in view of decision of Hon'ble Apex Court in Kausraj -vs- State of Punjab AIR 2000 SC 2324.
Therefore, the evidence of P.W. 1,2 and 3 is of no avail. The learned Amicus Curiae placed before me another decision reported in (2011)12 Supreme Court Cases 408 (Gurdeep Singh -vs- State of Punjab & Ors.) wherein the ingredients of dowry death to attack Section 304B/498A/34 of the Indian Penal Code were dealt with.
Regarding 113B, it was propounded by the Hon'ble Court that if one of the ingredients is not made out, presumption under Section 113B of the Indian Evidence Act would not be available.
However, in the present case last but not the least aspect is that the prosecution did not establish that the present appellant took a different and specific significant role for the purpose of commission of offence save and except 10 uttering attracts allegedly some words "you die so that I can marry second time". This does not attract the ingredients of Section 304B of the Indian Penal Code. Another point to be reckoned with is that when on same set of evidence some of the accused persons have been acquitted the other cannot be singled out to suffer imprisonment without being distinguished in any manner whatsoever.
In this aspect reliance may be put on Joginder Singh & Others -vs- State of Punjab 1994 SCC (Cri) 46.
This being the position, the prosecution case does not appear to have been established and as such the findings of the learned trial judge cannot be sustained.
Therefore, the appeal stands allowed. The impugned judgment is set aside. The present appellant be released from bail bond and set at free if not otherwise wanted in any other case.
I was under impression that the remuneration of Mr. Sourav Chatterjee, learned Amicus Curiae as appointed by this court was to be taken care of by the High Court Legal Services Committee. But rising to his highness, learned Amicus Curiae submitted that it is his desire that there should be a touch of the philanthropic service on his part by not accepting any remuneration.
This being the position, I pass no order as to his remuneration. Let a copy of judgment and LCR be sent back to the learned Court below immediately.
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Urgent certified copy of this judgment and order, if applied for, be given to the parties on priority basis.
sks (TOUFIQUE UDDIN,J)