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Acquitted in Sections 306/498A, No Evidence of Demand of dowry

IN THE HIGH COURT AT CALCUTTA

Criminal Revisional Jurisdiction Appellate Side Present:

The Hon’ble Justice Ashim Kumar Roy

C.R.A. No. 131 of 2006

Kashinath Bhar Ors.
versus
The State of West Bengal

For Appellants : Mr. Himangshu De,Mr. Suman De,Mr. Navanil De

For State : Mr. Swapan Kumar Mallick,Ms. Sirin Sultana

Heard On : April 29th, 2009.

Judgment On : 12-06-2009.

In this criminal appeal the appellants challenged their conviction under Sections 306/498A of the Indian Penal Code and the sentence of imprisonment and fine with default clause passed thereunder.

2. On December 11, 2002 Archana Rani Bhar, the married second daughter of the informant Ratan Chandra Seal committed suicide by hanging at her matrimonial home. Following the said incident a complaint in writing was lodged to the Officer-in-Charge, Jangipara Police Station, whereupon a case under Sections 498A/306 of the Indian Penal Code was started against the appellants Kashinath Bhar, the husband, Pankaj Bhar, the father-in-law and Pratima Bhar, the mother-in-law. The police after completion of the investigation of the said case submitted charge-sheet for the self-same offences.

3. It is the case of the defacto-complainant that his second daughter Archana Rani Bhar was given in marriage with the appellant Kashinath Bhar on 6th Ashar, 1409 B.S. according to Hindu Rites and Customs. After marriage Archana went to her matrimonial home where she was residing with the appellant Kashinath Bhar, as husband and wife. At her matrimonial home beside her husband there were her father-in-law Pankaj Bhar and mother-in-law Pratima Bhar. It is the further case of the complainant immediately after the marriage her husband, father-in-law and mother in law started torturing her mentally and quite often threatened her with dire consequences. However, the daughter of the complainant although initially tolerated everything but finally on December 10, 2002 being unable to bear such torture, committed suicide by hanging.

4. Subsequently, the appellants were placed on trial before the Learned Additional Sessions Judge, 1st Fast Track Court, Serampore, Hooghly to answer charges under Sections 498A/306 of the Indian Penal Code. In the trial the appellants were found guilty and were convicted under Section 306 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for six years and to pay a fine of Rs. 2,000/- as well as under Section 498A of the India Penal Code and sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs. 1,000/-, with default clause.

5. Heard Mr. Himangshu De, the learned Senior Advocate appearing for the appellants as well as Mr. Swapan Kumar Mallick, the learned Counsel appearing for the State. Perused the deposition of witnesses, impugned judgement and other materials on record.

6. The prosecution in order to establish its case examined as many as 13 witnesses. Out of them the P.W. 1, Sashanka Sekhar Dey is the scribe of the written complaint and is a neighbour of the defacto-complainant. P.W. 2, Ratan Chandra Seal, the defacto-complainant, is the father of the deceased Archana. While P.W. 3 Nilima Seal is her mother, P.W. 4 and P.W. 6 are their relations and P.W. 5 is the younger sister of the deceased. The P.W. 8 is an Executive Magistrate, who held the inquest. P.W. 9 and 10 are police constables. P.W. 11 is a doctor who held the post mortem and P.W. 12 and 13 are the Investigating Officers of the case.

However, the appellants pleaded not guilty and claimed to be innocent. They also did not examine any witness in their defence.

7. The P.W. 1, Sashanka Sekhar Dey, wrote the complaint as dictated by the P.W. 2 Ratan Chandra Seal, the maker thereof. Admittedly, he has no direct knowledge about the alleged incident. He claimed to have heard from the P.W. 2 that her daughter was tortured by her in laws on demand of gold necklace and money and she committed suicide by hanging. The evidence of this witness about what he heard from P.W. 2 cannot be taken into consideration as the same is purely hearsay in nature and when the P.W. 2 never claimed to have made any such statement to the P.W. 1.

8. The P.W. 2, Ratan Chandra Seal the father of the deceased Archana in his examination-in-chief stated that about one month after marriage the accused Kashinath and his parents inflicted torture upon her on demand of money and gold necklace and as he could not satisfied their demand the torture upon Archana continued and ultimately she committed suicide by hanging. However, this witness in his cross-examination admitted that in his written complaint it was not mentioned that one month after the marriage the accused persons started torturing his daughter on demand of gold necklace and money and also assaulted her and on such demand she was driven out from her matrimonial home. The witness further admitted he has not mentioned in the written complaint that at the time of marriage dowry and cash money was given to the accused persons. Thus, from scanning the evidence of this P.W. 2, the maker of the FIR, I find admittedly the allegation of torture upon his daughter Archana by the appellants on demand of dowry was not mentioned in the FIR and about three years after the occurrence for the first time such allegation was made by the said witness in his deposition in Court and the allegation of torture in the FIR is a serious lacuna in the prosecution case and ought to be excluded from consideration. It appears in the First Information Report, the P.W. 2 alleged the deceased was mentally tortured by the appellants but in his deposition in Court the witness nowhere disclosed the nature of such mental torture. In my opinion, the evidence of this witness as regards to the torture upon the deceased on demand of dowry is not at all worthy of credence. According to the P.W. 2 on the day before the fateful day the witness and his wife and their son Arup Seal had been to the matrimonial home of their daughter to hand over a gold necklace to her and they had their lunch there. However, this witness nowhere in his evidence made any allegation at that time he was reported by the victim about any torture by the appellants. The P.W. 2 although claimed that after coming to know about torture perpetrated upon her from his daughter she reported the incident to the Panchyat Pradhan, the P.W. 7 but the P.W. 7 in his deposition never claimed that he was told by the P.W. 2 about any torture meted out to his daughter by the appellants.

9. The P.W. 3 Nilima Seal is the mother of the victim girl, according to this witness the conjugal life of her daughter was peaceful for first one month and thereafter the appellants started torturing her on demand of a gold necklace and more cash and she was driven out from her matrimonial home but they some how managed to send her back and such torture continued till her death. It is her further evidence on the day before the fateful day she along with her husband and her son went to the matrimonial house of their daughter to hand over a gold necklace but at the time her daughter Archana was not available at the house and went to the doctor’s chamber. After returning home her daughter complained that she went to the doctor for treatment of her injuries caused by the appellants. Even after receipt of the gold necklace the father-in-law of the deceased Archana demanded a further cash of Rs. 5,000/-. According to her own admission this witness was not examined by the police in connection with the alleged incident during investigation. Although, it was claimed that this witness went to the matrimonial house of their daughter along with her husband and son, on the day before the fateful day, but her husband, who was examined as P.W. 2 in this case never lent supports to her evidence that when they reached the matrimonial home of the deceased Archana, she was not there and went to the doctor and after she returned, she reported to them that she went to the doctor for treatment of her injuries caused by the appellants. The P.W. 2 has also not corroborated her that even after receipt of the gold necklace the father- in-law of the deceased demanded a further sum of Rs. 5,000/- in cash. In view of the fact the P.W. 3 was not examined during investigation by the police and she for the first time disclosed about the incident in the Court after about three years of the alleged incident, I am not inclined to place any reliance on her evidence. Moreover, I find she tried to improve the prosecution case by alleging, on the day before the fateful day the said witness along with her husband, the P.W. 2 and their son went to the matrimonial house of the victim to hand over a gold necklace at that time her daughter was not there and went to the doctor and after returned she reported that she went to the doctor for treatment of the injuries inflicted upon her by the appellants and after receipt of the said gold necklace the father-in-law of her daughter demanded a further sum of Rs. 5,000/- in cash, while her husband P.W. 2 Ratan Chandra Seal, who accompanied her made no whisper as to the same. No doctor, who allegedly treated her, was examined during the trial. Thus, no credence can be given to any part of her evidence.

10. So far as the other witnesses are concerned, viz. P.W. 4 Haradhan Sen and P.W. 6 Ashima Sen, who are the relations of the defacto-complainant and P.W. 4 Aparna Seal, who is his youngest daughter although they have stated in their evidence about the alleged torture perpetrated upon the victim Archana by her in laws on demand of dowries, but all the said three witnesses admitted in their evidence that they were never examined by the police during investigation and for the first time in Court, were disclosing all about the torture upon Archana by the appellants on demand of dowry. The aforesaid witnesses, since were not examined by the police during investigation and admittedly disclosed all about the incident of torture upon the deceased Archana by the appellants for the first time in Court, in my opinion it would be quite unsafe to record the conviction of the appellants on their evidence without any other credible evidence.

11. In view of the facts there was no credible evidence against the appellants to show that they were guilty for committing torture upon the victim Archana during her lifetime and such torture led her to commit suicide, the impugned order of conviction of the appellants are liable to be set aside and they are entitled to an acquittal.

In the result this appeal stands allowed and the impugned order of conviction stands set aside. The appellant no. 1, Kashinath Bhar, who is in custody be forthwith released from jail, if not wanted in connection with any other case. So far as the other two appellants are concerned, who are now on bail, be discharged from the bail bonds.

The Office is directed to send down the Lower Court Records immediately.

Criminal Section is directed to deliver urgent Photostat certified copy of this Judgement to the parties, if applied for, as early as possible.

(Ashim Kumar Roy,J.)

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