(Ajoy Malik & Ors vs The State Of West Bengal) on 22 September, 2017

Form No. J(1)

IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION

Present: The Hon’ble Justice Siddhartha Chattopadhyay

CRA 47 of 2013
(Ajoy Malik Ors vs. The State of West Bengal)

For the appellant : Mr. Sourav Chatterjee
(as State Defence)

For the State : Mr. Abhra Mukherjee
Mrs. Debjani Sahoo

Heard on : 22.09.2017

Judgment on : 22.09.2017

Siddhartha Chattopadhyay, J.:

The appellants call in question the legality and validity of the judgment and order of

conviction dated 19.12.12 and 21.12.12 passed by the learned District Sessions Judge, Fast

Track 2nd Court, Hooghly in S.T. No. 18/10 by which the said learned court below convicted the

male convicts for a period of six years and female convicts for a period of five years each.

According to the appellants, the learned trial court failed to appreciate the evidence of

the prosecution witnesses and failed to scrutinize the entire evidence for which the findings of the

learned trial court is required to be set aside.

To come to a finding I should now have a look upon the prosecution case.

Shorn of unnecessary details, prosecution case in a capsulated form is such that the

marriage of the victim took place on 28.11.2005 with the principal accused Ranjit Malik as per

Hindu rites and Ceremonies. Marital rituals were observed and some presentations were given.

After initial charm is over, the appellants used to inflict physical and mental torture

upon the victim and the victim disclosed this incident to them. The prosecution is very

categorical in saying that when the victim visited the house of her parents, she disclosed the story

of assault and torture. It has also been averred that they did not provide her sufficient food and

put pressure upon her to bring more money from her father’s house.

In the month of Jaistha, the victim was driven out and the parents of the victim took

steps for amicable settlement and, lastly, it was settled. But all on a sudden, they came to know

on 27.05.2006 that the victim died in hospital. It is their belief that due to torture, the victim had

to commit suicide by taking poison.

After registration of FIR, the investigating agency came into operation. After completion

of investigation, the I.O. concerned submitted chargesheet under Section 498A of the Indian

Penal Code and Section 306 of the Indian Penal Code

Now, I should consider the evidence of the prosecution witnesses to adjudicate

whether the prosecution has been able to prove the guilt beyond all reasonable doubts and

disputes.

PW 1 is the father of the victim. In his examination-in-Chief, he has corroborated the

prosecution story. In course of examination-in-Chief, he has stated that at the time of marriage,

he had given Rs. 5000/- on demand made by the accused appellant. He also failed to recollect

whether he has mentioned the same in the FIR or not. He has also admitted that in the FIR, he

did not mention that a sum of Rs. 10000/- was demanded and paid. He also candidly admitted

that his daughter visited his house at the time of Dol Yatra of that year. But in the FIR, it has

been mentioned that the victim came to his house and he took them to the house of the appellant

and requested the appellant for amicable settlement and that was done. At the same time, he has

invited the accused son-in-law to attend Jamai Sasthi Ceremony. The Jamai Sasthi Ceremony is

generally held in the month of Jaistha and Dol Jatra falls in the month of February/March.

It further appears that the FIR was lodged on 06.02.12, i.e., long after nine days from

the date of incident. There is no explanation regarding such delay.

PW 2 has some acquaintance with the defacto-complainant. He was present at the

time of inquest. In course of cross-examination, he has stated that sometimes he went to the

house of the defacto-complainant. He did not say from whom he came to know that there was

family dispute between the parties. The mother of the victim has corroborated her husband (PW

1). In course of cross-examination, she stated that the victim visited her house for 4-5 times in

between the date of marriage and her death. In her examination-in-Chief, she has stated that the

victim told her about the torture but inspite of that, she did not lodge any complaint before any

authority. A suggestion was given to her that the victim died due to her breathing problem but

she turned down the said suggestion.

PW 4 is also a relation of the victim. He has corroborated the statement of PWs 1 to 3.

In his cross-examination, he admitted that he did not go to the house of the appellant with his

elder brother. He also admitted that after two to three days of the death of the victim, there is

consultation with him by the defacto-complainant and thereafter FIR was lodged. Other parts of

his evidence is in the form of denial.

PW 5 in his examination-in-Chief candidly admitted that he does not know whether

the appellants well-behaved with the victim or not. He failed to recollect if he had given

statement to the I.O. that the appellant drove out the victim from their residence.

So far the evidence of PW 6 is concerned, it is not relevant because he did not raise

any allegation against the accused rather he turned hostile.

The evidence of PW 7 has got no importance because he is a hearsay witness.

PW 8 is the barber.

PW 9 is the learned Executive Magistrate who conducted the inquest.

PW 11 is the doctor who had conducted the viscera test and concluded that no poison

was found in her body.

Other witnesses are Police Personnel who does not have any personal knowledge

regarding the alleged incident.

These are the sum and substance of the prosecution witnesses.
After scrutinizing the same, I do not find any ingredient of Section 498A of the Indian

Penal Code. Prior to the death of the victim, whether she was assaulted or not that has not been

proved. Whether such assault was inflicted upon her for dowry that has also not been proved.

There is no evidence in regard to the abetment to commit suicide.

It is perhaps needless to say for the purpose of bringing a person booked the

prosecution is under the obligation to show the ingredients of Section 107 also so far as evidence

of Section 306 of the Indian Penal Code is concerned.

All these are lacking in the evidence and yet why the learned trial court has convicted

the appellant under the aforesaid Sections are question of million dollar. The judgment rendered

by the learned trial court is hereby set aside.

The accused appellants are in custody for more than 4 years and nine months since

the date of conviction.

Therefore, at this stage, it would be appropriate to direct the Department to convey the

order of this court to the Correction House concerned as early as possible so that the appellant be

set at free at once.

Hence, with the above observations, the criminal appeal stands allowed.

Let a copy of this judgment be sent to the learned trial court for information and

necessary action.

The Department is directed to send the entire lower court record to the learned court

below at once.

Let a xerox plain copy of this order duly counter signed by the Assistant Registrar

(Court) on usual undertakings be supplied to the learned advocate for the appellant (as State

defence) so that he can communicate with the concerned Correction Home.

(Siddhartha Chattopadhyay, J.)

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