C.R.R. 2387 of 2001
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
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
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
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
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
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.
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,
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.)