Ramesh Burnwal vs The State Of West Bengal & Ors on 6 September, 2017

IN THE HIGH COURT AT CALCUTTA
(CRIMINAL APPELLATE JURISDICTION)
C.R.A No. 447 of 2015

Ramesh Burnwal
-Vs.-
The State of West Bengal Ors.

Present: The Hon’ble Justice Siddhartha Chattopadhyay

For the Appellant : Mr. Sekhar Basu, Sr. Adv.,
Mr. Amitava Nayak, Adv.,

For the State : Mr. S.G. Mukherjee, P.P.,
Mr. Abhra Mukherjee, Adv.,
Mr. Dipankar Mahata, Adv.,

Heard On : 09.08.2017, 10.08.2017.

Judgment Delivered On : 06.09.2017.

Siddhartha Chattopadhyay, J.:

The appellant calls in question the judgment and order of conviction dated

23.06.2015

and 24.06.2015 passed by the Judge, Special Court cum Additional

Sessions Judge, Durgapur in connection with S.T. No. 12 of 2007 mainly on the

ground that the learned Trial Court failed to appreciate the evidence of the

prosecution witnesses in its proper perspectives.

2. Learned Counsel appearing on behalf of the state contended that the

learned Trial Court had taken care of all the material aspects and has passed a

well-reasoned judgment, which does not warrant any interference.

3. In the interest of effective adjudication factual scenario is required to be

revisited. The prosecution case, as unfurled herewith, is such that the marriage

of the victim was held with the appellant on 08.05.1997 as per Hindu Rites and
Ceremonies. Some ornaments and valuables including scooter were gifted at the

time of said marriage. Initially the victim was quite happy in her matrimonial

home but after one year she began to realise that her husband had illicit affairs

with his sister-in-law (Boudi). It is also alleged that after the marriage the victim

was tortured on demand of dowry. The victim disclosed her agonies to her

parents. Her parents intervened and took steps for amicable settlement, yet the

torture continued. On 07.11.2002 the accused allegedly declared that if the

victim dies he would marry four women. When the de-facto complainant was

coming back from the matrimonial house of the victim, he suddenly heard ‘save

me’ ‘save me’ and he found her daughter was in burnt condition. He doused the

flame but in the meantime the victim breathed her last. Disclosing this fact, the

de-facto complainant lodged the F.I.R. and set the law into motion.

4. The defence case as it appears to me from the trend of cross-

examination and examination of the accused under Section 313 of Cr.P.C. is his

innocence and that he has been falsely implicated. On perusal of the charge-

sheet the learned Trial Court had framed the charges under Section 498A/304B

of I.P.C. To come to a finding we should now listen to the prosecution witnesses.

5. P.W. 1 is the father of the victim. In his examination-in-chief he made

some embellishment by saying that the accused demanded Rs.50,000/- from him

but that was not reflected in the F.I.R. nor any other witnesses espoused the said

statement. In his examination-in-chief he has disclosed some stereo-typed

allegations and thereafter stated that the victim disclosed to him that the

accused appellant had illicit relationship with his Boudi. In course of his cross-
examination, he admitted by saying “My son-in-law used to come to my house

and similarly we used to visit their home as usual after marriage”. It indicates

that there was cordial relationship between the two families even after one year,

when the victim told P.W. 1 about the illicit affairs of her husband. He also

clarified the position by saying that before marriage the accused appellant and

his brother were in joint mess but after the marriage there was an amicable

partition of the business and immovable properties by and between them and the

couple (victim and appellant) started living separately. Not only that he also

candidly admitted that the parents-in-law of the victim used to reside with the

accused appellant. In course of his cross examination he confirmed that the

complainant, the victim and the accused were the disciples of ‘Radhashyam

Ashram’ whose Head Office is at Dayalbag Ashram, Agra. On 25.10.2002 the

complainant, son-in-law and the victim came back from Agra. This also indicates

that soon before the death of the victim there was a very good relationship

between the parties, otherwise the accused, victim and the de-facto complainant

would not have visited Agra jointly. He also admitted that before lodging the

F.I.R. he wrote a complaint before Dayalbag Ashram that Ramesh hit the victim

with a Danda and the victim lost her sense. He also admitted that in the said

complaint he mentioned that Ramesh (the appellant) sat on her chest and gagged

her mouth, pressed her throat and thereafter the victim died due to

strangulation. After that he said that the accused appellant poured kerosene oil

and set the victim ablaze. Such fact was reported before Dayalbag Ashram, but

has not been disclosed in the F.I.R. He rather admitted in unequivocal terms that
death was due to strangulation and thereafter she was set ablaze. The autopsy

surgeon did not say so, after examining the body. Rather he concluded that the

death was due to burn injuries. In the F.I.R. as well as in examination in chief he

stated that he heard the shouting of the victim ‘save me’ and after opening the

door he found the victim was caught with fire. But his first complaint before

Dayalbag Ashram is quite different. In course of cross-examination he had

admitted “I did not see all these things physically”. If it is so how he could say

that story that the accused appellant sat on her chest and to kill the victim by

way of strangulation and thereafter the accused set fire on her person. On being

asked by the defence counsel he stated that he had no idea about the conjugal

relationship between his daughter and the accused. On perusal of his entire

evidence it seems to me that he is not a trustworthy witness.

6. P.W. 2, is the another son-in-law of the de-facto complainant, who

stated that the victim was subjected to physical torture and she was also not

given food properly and that he came to know from the accused about the cause

of such torture. The accused appellant allegedly told him that adequate dowry

was not given and so she was subjected to physical assault. Regarding the

victim’s death he stated that on that day from the elder son of the victim, he

came to know that the accused slapped the victim and thereafter sat on her chest

and throttled her. Thereafter the accused poured kerosene oil on her person. In

his cross-examination, he failed to recollect if he stated before the police that the

accused appellant had charged the victim as to why the victim called them to be

present in their house. A suggestion was given to him that the accused had
pledged 10 bhoris of gold ornaments and took a loan of Rs.25,000/-. He, also in

his cross-examination stated that at the time of marriage, a Lagnapatra was

prepared which contained list of articles given or to be given. But story of such

Lagnapatra has not been stated by any other witnesses nor he handed over the

said Lagnapatra to the police.

7. P.W. 3, is the nephew of the de-facto complainant. He only stated that

after two years of marriage the victim told him over phone that she has been

subjected to torture and physical assault. In his examination in chief he

categorically stated that the relation of the victim with the elder brother and

sister-in-law of the accused appellant was not good but he never said that the

dispute cropped up due to alleged illicit affairs of the accused appellant with his

Boudi. In cross-examination P.W. 3, candidly stated that there was no

Lagnapatra prepared in his presence. He did not make any statement that the

victim did not have good relation with the elder brother and sister-in-law of her

husband.

8. P.W. 4, is the mother of the victim. In her evidence she stated that the

victim was tortured and was abused filthily. She also stated that the victim

expressed her anguish that the accused appellant had illicit relation with his

Boudi.

9. P.W. 5, is the brother of the victim. He stated that there was family

disputes over the alleged illicit affairs of the accused with his Boudi. In course of

cross-examination, he failed to say that when he came to know first about the
illicit relationship of the accused with his Boudi. He could not even say the year

when he came to know about such relationship.

10. P.W. 6, has proved the formal F.I.R. P.W. 7, is the autopsy surgeon,

who opined that the death was due to effect of burnt injuries. P.W. 8, is the

Investigating Officer. In his examination in chief he narrated everything regarding

investigation. In course of cross-examination he candidly stated that no witness

told him about the torture inflicted upon the victim for dowry prior to 7.11.2002

and he also stated that during course of investigation he did not receive any

allegation about abetment to commit. He also added that Mahendra Burnwal did

not make any allegation about torture for dowry. He categorically stated that

Mahendra did not tell him that the victim’s son i.e. Sachin told him that there

was quarrel between his parents.

11. These are the sum and substance of the deposition of the prosecution

witnesses. After going through the evidence led by the prosecution, I find there is

no ingredient of Section 498A of I.P.C. To constitute the offence under Section

498A of I.P.C. the prosecution is to prove … “Explanation. – For the purposes

of this section, ‘cruelty’ means –

(a) any wilful 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 is on account of failure by her or any

person related to her to meet such demand.”

12. On perusal of the evidence there is nothing on record that there was

any wilful conduct of such nature as is likely to drive woman to commit suicide

and to cause grave injury to danger to life, or any harassment of the woman to

meet any unlawful demand for any property. It is unfortunate that the wife is no

more in the world. She committed suicide and why she committed suicide has

not been established from the evidence. To prove the offence under Section 306

of I.P.C., the prosecution is under an obligation to prove the ingredients of

Section 107 of I.P.C. also. There is no evidence of abetment, instigation or goad.

The prosecution wanted to establish that suicide was the outcome of illicit

relationship between the parties. But it is in evidence that before the marriage of

the victim, she herself and her husband had been residing there in joint mess

with his elder brother and boudi. But after one year of the marriage there was

complete separation and partition of the properties also. As a result the victim,

the accused appellant and parents-in-law had been residing jointly in a portion of

their property and the elder brother and boudi of the accused appellant had been

residing in other portion of their property separately. Common mess was broken

into two messes and this happened within one year from the alleged marriage.

But the prosecution case is such after two years the troubled cropped up.

Therefore, it can be safely stated that the prosecution failed to establish the

alleged illicit relationship. No neighbour of that locality came forward to say that

there was ever any illicit relationship. Not only that victim’s parents-in-law had
been residing with the victim and accused in a joint mess. Even before her death

there was cordial relationship between the appellant and victim’s parents. They

have visited their respective houses on reciprocity basis. This apart, they visited

Radhashyam Ashram at Agra just one month before the death of the victim.

13. Having regard to the facts and circumstances of the case and the

evidence as led by the prosecution, I am of the view that the prosecution

hopelessly failed to establish the guilt of the accused appellant to the best

judicial satisfaction of this Court.

14. Accordingly, the accused appellant is hereby acquitted. The judgment

and order of conviction passed by the Judge Special Court cum Additional

Sessions Judge, Durgapur is hereby set aside. The appellant is in jail. He be set

at liberty at once.

15. Let a copy of this order be sent to the learned trial court with a

direction to inform the Correctional Authority to release the appellant forthwith.

16. Let a copy of this order and LCR be sent to the learned Court below at

once for information and taking necessary action.

17. Urgent certified photocopy of this order, if applied for, be supplied to

the parties upon compliance with all requisite formalities.

(SIDDHARTHA CHATTOPADHYAY, J.)
A.F.R/N.A.F.R.

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