Sri Sanjib Mondal & Ors vs Unknown on 4 August, 2017

1

C.R.R. 2387 of 2001
With
34 04.08.2017

C.R.A.N. 1775 of 2017
SB Ct. No. 28

In the matter of : Sri Sanjib Mondal Ors.

Mr. Sandipan Ganguly
Mr. Achintya Kumar Banerjee
…… For the Appellant
Mr. Ayan Basu
….. For the State

The petition is directed against the judgement and order

dated September 24, 2001 passed by the learned Sessions Judge,

Bankura in Criminal Appeal No. 33 of 2000 affirming the order of

conviction dated 19.09.2000 passed by Judicial Magistrate, Second

Court Bishnupur in G.R. Case No.37/97 (34 S.T./98) convicting the

petitioner no. 1 for commission of offence punishable under sections

498A/324 of Indian Penal Code and petitioner nos. 2 3 for the

offence punishable under section 498A of Indian Penal Code and

sentencing petitioner no. 1 to suffer rigorous imprisonment for the

period of one year and to pay fine of Rs.2,000/- in default to suffer

further rigorous imprisonment for a period of another two months for

the punishable offence under sections 498A of Indian Penal Code and

petitioner nos. 2 3 to suffer simple imprisonment for six months and

to pay a find of Rs. 1000/- in default to suffer further simple

imprisonment for two months under section 498A of Indian Penal

Code, no separate sentence was awarded for the offence punishable
2

under section 324 of Indian Penal Code upon petitioner no. 1.

I am informed that petitioner no. 2 has expired on 11th

February, 2013. Copy of the death certificate has been annexed to

C.R.A. 3304 of 2016. Accordingly, it is recorded that proceeding

against petitioner no. 2 has abated.

The prosecution case, as alleged, against the petitioners is to

the effect that petitioner no. 1 was married to Mayna Mandal, the victim

house wife on 25th Agrayana 1403 B.S. according to Hindu rites and

ceremonies, the victim was subjected to mental and physical torture at

her matrimonial home by the petitioners. Villagers intervened and there

was an amicable settlement of the matter. Subsequently, the

petitioners again began to torture the victim and on 10.02.1997 at

about 5-00 AM, the complainant Tota Sikdar (P.W.1) was informed

that around 2-00 or 2-30 hours in the previous night the petitioner no. 1

had assaulted the victim and causing injury on her tongue. The

villagers had taken her for treatment in the hospital. On receipt of

complaint from Tota Sidkar, brother of the victim, F.I.R. being

Sonamukhi P.S. Case No. 6/97 dated 10.02.1997 was registered for

investigation and charge sheet was filed under sections 498A/323,

326/34 of the Indian Penal Code against the petitioners. Charg was
3

framed under sections 498A of Indian Penal Code against petitioner

nos. 1 and 3 whereas charges were framed under section 498A/324 of

Indian Penal Code against the petitioner no. 1.

In the course of trial prosecution examined 14 witnesses. The

defence of the petitioners was one of the innocence and false

implication. It was their specific defence that the victim had suffered

injury due to fall. Upon assessment of evidence, the trial Court by

judgement and order dated 24.09.2001 convicted sentenced the

petitioners, as aforesaid. In appeal the conviction and sentence was

held. Hence the present petition.

Mr. Ganguly, learned senior counsel appearing on behalf of the

petitioners submitted that evidence of the relations have not been

supported by the independent witnesses. It is further submitted that

P.W. 4 has probabilised the defence version that injury on the victim

was due to fall but his evidence was ignored by the courts below. It is

also submitted that no overt act of torture upon the victim by petitioner

no.3 has been proved.

On the other hand Mr. Basu, learned counsel for the State

submitted that evidence of torture is clear and cogent and is supported

by medical evidence. It is also submitted that the victim had implicated
4

petitioner no. 1 as the assailant before the treating doctor (PW. 11).

Accordingly, the appeal is liable to be dismissed.

P.W. I is the de facto complainant and the brother of the victim.

P.W. 2 is the victim herself. P.W. 3 is the father of the victim. P.W. 12 is

the step mother of the victim. All these witnesses have deposed about

the marriage of the victim with petitioner no. 1. They have also

deposed that the victim was subjected to mental and physical torture

by the petitioner nos. 1 3 at the matrimonial home. It has also come

on record that on the fateful night between 9/10.2.1997 that the

petitioner no. 1 had assaulted the victim causing tenderness in her

abdomen and injury on her tongue. She was, accordingly, medically

treated.

It is true that the villagers residing in an around the residence of

the petitioners namely PWs.5 to 8 have stated that they were unaware

of any incident. P.W. 10, who is an elder of petitioner 1, has also not

supported the prosecution case.

It is not unnatural that co-villagers of the petitioners have kept

mum about the torture upon the house wife which had taken place

within the four corners of the matrimonial home. Moreover, it is
5

common knowledge that neighbours do not ordinarily wish to involve

themselves in domestic disputes of other neighbouring family. Evasive

role of P.W. 10 also may be explained away due to his filial

commitment to the accused persons. Hence lack of corroboration from

their end, in my opinion, would not render the cogent evidence of

torture of the house wife as narrated by herself as well as her relations

improbable in the instant case. It is also relevant to note that the

allegation of assault upon P.W. 2 is supported by P.W. 12, the doctor

who treated her. The medical witness deposed that P.W. 2 had

suffered tenderness in her lower abdomen and 1″ cut on her tongue.

He also deposed that the victim narrated that such injuries were

caused due to assault by P.W. I. In view of the aforesaid evidence on

record, I am of the opinion that the allegations of torture including

physical assault upon the victim by P.W.I has been proved beyond

reasonable doubt. With regard to the involvement of the petitioner no.

3, I find that the allegations of torture against her are in general in

nature and relate to daily chores in the matrimonial life of the victim. It

is difficult to come to a conclusive opinion that her conduct would

amount to cruelty as defined under section 498A of Indian Penal Code.

Hence, I am inclined to extend the benefit of doubt to her.
6

In view of the aforesaid discussions conviction of petitioner no. 1

is upheld and that of petitioner no. 3 is set aside.

Coming to the issue of sentence, I find that the incident had

occurred three decades ago, I am informed that the matrimonial tie

between the parties have since been dissolved by a decree of divorce

and the victim has again remarried. It also transpires from the records

that petitioner no 1, was barely twenty one years of age at the time of

incident and, therefore, in the aforesaid factual matrix I am inclined to

extend the beneficial provisions of the Probation of Offenders Act to the

petitioners. Accordingly sentence imposed on the petitioner no.1 is set

aside. Petitioner no.1 shall be released on probation of good behaviour

upon executing a bond with two sureties of Rs. 20,000/- each to the

satisfaction of the learned Additional Chief Judicial Magistrate,

Bishnupur for a period of two years and on condition that he shall

deposit a sum of Rs. 50,000/- within a fortnight from date before the

said Magistrate and the said amount upon deposit shall be remitted to

P.W. 2 as compensation for the pain and agony suffered by her. In the

event the petitioner no. 1 fails to comply with the aforesaid condition,
7

the order of probation shall be recalled and the sentence imposed upon

him shall be revived and executed against him in accordance with law.

Under such circumstances, the period of detention undertakings

by the petitioner during investigation, enquiry and trial shall be set off

from the substantive sentence imposed upon him under section 428 of

Code of Criminal Procedure.

With the aforesaid modification as to sentence, the revision

petition along with the application is accordingly disposed of.

Copy of the judgement along with lower court record be send

down at once for necessary compliance.

(Joymalya Bagchi, J.)

Leave a Comment

Your email address will not be published. Required fields are marked *