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Arun Ghosh vs The State Of West Bengal on 28 January, 2019

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IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction

PRESENT:

The Hon’ble Mr. Justice Rajarshi Bharadwaj

C.R.A. 460 of 2012

Arun Ghosh
Versus
The State of West Bengal

For the Appellant : Mr. Milan Mukherjee, Sr. Adv.

Ms. Bratati Dutta

For the State : Mr. Binay Panda
Mr. Monoranjan Mahata

Heard on : 4th July, 2018, 12th July, 2018, 19th July, 2018, 24th July,
2018, 27th July, 2018 and 3rd October, 2018.

Judgement on: 28th January, 2019

Rajarshi Bharadwaj, J.:

This appeal arose out of a judgement and order dated 18th
June, 2012 passed by the learned Additional Sessions Judge, 3rd
Court, Bankura in Session Case no. 06(06)/2004 and Sessions Trial
no. 01(12)/2004 convicting the appellant under Section 498A and
306 altered from charge under Section 304B of the Indian Penal Code
and sentencing him to suffer rigorous imprisonment for two years
and to pay a fine of Rs. 2,000/-; in default to suffer simple
imprisonment for three months for the offence punishable under
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Section 498A of the Indian Penal Code and also sentencing him to
suffer rigorous imprisonment for five years and to pay a fine of Rs.
5000/-, in default to suffer simple imprisonment for six months for
the offence punishable under Section 306 altered from charge under
Section 304B of the Indian Penal Code and both the sentences were
directed to run concurrently.

The prosecution case in brief is that on 14th November, 2001
one Astik Mondal, son of L. Budhan Modal of village Banjora, P.S.
Mejhia came to the Officer-in-Charge of G. Ghati P.S. and lodged a
written complaint alleging that his sister Belarani Ghosh was given
marriage with Arun Ghosh of Pabradihi village on 18th Falgoon, 1405
B.S. according to Hindu rites and customs. After some days of her
marriage she was physically and mentally tortured by her husband,
father-in-law and mother-in-law and for that she occasionally came
to his house being unable to bear such torture. The de facto
complainant persuaded her and sent her to her father-in-law’s house.
On 13th November, 2001 at about 4 p.m. two persons namely,
Bhajahari Mondal and Uttam Mondal of village Papradihi reported to
him in their house that his sister was physically tortured by her
husband in their presence and she had died. They saw Arun Ghosh
to assault his sister while returning from the paddy field. On getting
this information he and his para people visited to the house of the
accused at night on that day and found his sister lying dead in the
cowshed of the premises of the accused. On that night he came to
the police station from the house of the accused and on the next
morning he lodged a written complaint at G. Ghati P.S.
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On the basis of the written complaint, a criminal case, being G.
Ghati P.S. Case no. 72/2001 dated 14th November, 2001 was initiated
against the accused. Investigation was started and after completion
of investigation, charge sheet was submitted under Sections
498A/304B/34 of the Indian Penal Code against the accused person,
who pleaded not guilty and claimed to be tried.

Mr. Milan Mukherjee, learned senior advocate for the appellant
submitted that the First Information Report was lodged after 36
hours and there was no explanation for that delay. Though the
complainant was present at the police station on the previous night
on three occasions, he did not deem it necessary to lodge complaint
before the Officer-in-Charge of G. Ghati P.S. Furthermore, the place
of holding inquest report was belied by the evidence of P.W.1 and the
U.D. report. He further submitted that the time of death of the victim
could not be supported by medical evidence inasmuch as there was
contradiction of the evidence between P.W.2 and P.W.3 regarding
time of death of the victim. He also submitted that the story of dowry
was disbelieved and therefore, the appellant may be acquitted of the
charge under Section 306 of the Indian Penal Code. Moreover,
Section 498A of the Indian Penal Code would not be applicable, as
the ingredients of the explanation were found absent. He further
submitted that the learned Trial Court had converted the offence
under Section 306 of the Indian Penal Code, but no opportunity was
given to the appellant as required under Section 216(2) of the Code of
Criminal Procedure. Thus, the learned Trial Court failed to consider
that the ingredients under Section 304B and 306 of the Indian Penal
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Code are quite different and distinct and as such in absence of direct
evidence alternative charge under Section 306 of the Indian Penal
Code did not arise at all. He also submitted that the evidence of
P.W.2 and P.W.3 with regard to torture and severe assault on the
victim immediately prior to her suicide was completely unreliable and
was not supported by the medical evidence. In support of his
submission, he has relied on the decision of the Apex Court in the
case of Gurcharan Singh -vs- State of Punjab reported in (2017) 1
SCC 433 and the case of M. Mohan -vs- State reported in (2011) 3
SCC 626. He also relied on the decision of the Supreme Court in the
case of Ramesh Kumar -vs- State of Chhattisgarh reported in (2001)
9 SCC 618. According to the appellant, as there is no evidence of
dowry death, the evidence of abetment to suicide could not be
imposed upon the appellant without following the procedure of 216(2)
of the Code of Criminal Procedure. Therefore, the prosecution has
measurably failed to prove the case beyond reasonable doubt. Thus,
learned advocate for the appellant prayed that the appeal may be
allowed by setting aside the order of conviction and sentence passed
by the learned Judge.

Learned advocate for the State submitted that death of the
victim occurred within three years of her marriage as evident from the
First Information Report and as such the learned Judge ought to
have recorded the order of conviction under Section 304B of the
Indian Penal Code. Though the Investigating Officer initiated the
proceeding under Section 498A/304B of the Indian Penal Code and
charge sheet was submitted under the aforesaid sections, but
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subsequently charge was framed under Section 498A/306 of the
Indian Penal Code. He submitted that the evidence as to the torture
upon the victim by the appellant has been proved by the prosecution
witnesses. The specific evidence of P.W.2 and P.W.3 is that the
accused person caused her death after torturing and assaulting her.
He also submitted that in view of the statutory presumption under
Section 113A of the Evidence Act, the conviction of the appellants
under Section 306 of the Indian Penal Code does not call for
interference. He has cited a decision of the Hon’ble Supreme Court in
the case of Brahm Swaroop Anr. -vs- State of U.P. reported in
(2011)2 SCC (Cri) 923 and Rajeev Kumar -vs- State of Haryana
reported in 2013(16) SCC 640. Thus, he prayed for dismissal of the
appeal.

Heard learned advocates for the parties and perused the
impugned judgement.

In the instant case the prosecution examined as many as
thirteen witnesses to substantiate the charge.

P.W.1, Astick Mondal, the complainant in this case stated in his
evidence that his sister Belarani Ghosh was married to accused Arun
Ghosh of the village Papradihi within G. Ghati P.S. about three years
ago from her death as per social customs. It was an arranged
marriage. At the time of marriage, a sum of Rs. 40,000/- in cash,
gold ornaments and other dowries were given. After marriage his
sister lived in her matrimonial home with her father-in-law, mother-
in-law and husband. His sister reported to them that she was
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tortured by her husband, father-in-law and mother-in-law whenever
she used to visit their house and they persuaded her and sent her
back to her matrimonial home. On 13th November, 2001 at about 4
p.m., two persons namely, Bhajahari Mondal and Uttam Mondal of
village Papradihi reported to them in their house that his sister was
physically tortured by her husband in their presence and she had
died. They saw Arun Ghosh to assault his sister while running from
the paddy field. On getting this information P.W.1 and his para
people visited the house of the accused persons at night on that day
and found his sister lying dead in the cowshed of the premises of the
accused. It came to his mind that his sister was murdered. On that
night he went to the police station from the house of the accused and
on the next day morning he lodged a written complaint with G. Ghati
P.S. He proved written complaint marked as Ext.1. He further stated
that his sister was tortured by the accused persons for demand of
more money and she did not perform work properly in the field.
P.W.1 identified the accused in dock.

P.W.2, Uttam Mondal , resident of village Papradihi deposed that
he knew Bela Ghosh, wife of Arun Ghosh. Bela lived in her
matrimonial home with her husband, father-in-law and mother-in-
law. According to him, the victim was tortured by her husband. He
saw accused Arun Ghosh to assault his wife. About three years ago
at about 10.00 a.m. accused Arun Ghosh was bringing his wife from
the field by assaulting her and after an hour they saw that Bela had
died. P.W.2 stated that he was in the field when Arun was assaulting
his wife. He visited the house of the accused ad found Bela lying
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dead in the cowshed of the premises of the accused. At that time
Arun, his father and mother Bijala were present in their house. Arun
left his house. P.W.2 identified the accused in dock.

P.W.3, Bhajan Mondal, co-villager of the accused of village
Papradihi corroborating the evidence of P.W.2 stated that Belarani
was tortured by her husband and mother-in-law and they used to
pick up quarrel with her and did not provide her food properly. Bela
had died about three years ago at 1/1.30 p.m. On the date of
incident in the morning Bela went to the field along with her
husband, father-in-law and mother-in-law to harvest paddy. Arun
was taking her in their house and was assaulting her by a stick.
After sometime the mother-in-law of Bela disclosed to them that Bela
had died. Thereafter, he visited the house of the accused and saw
Bela lying dead in the cowshed of their house. Bela had a male child
at that time. He and Uttam visited to the father’s house of Bela to
inform about the incident. The father-in-law, mother-in-law and
husband were present in Court and he identified them in dock.

P.W.4, Golok Ghosh stated in his evidence that he knew Bela
who was married to accused Arun. After marriage when Bela visited
her father’s house, she disclosed to him that she was tortured by her
husband, father-in-law and mother-in-law. She also disclosed to him
that her husband used to assault her and abused by her mother-in-
law. Bela had died. She was murdered. On getting information he
along with the brothers of Bela and other villagers visited the house
of the accused and found Bela lying dead in the cowshed of their
house. He came to know from the villagers that on that day in the
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morning Bela went to field with her husband and her husband
assaulted her and brought her to his house and after some time it
came to the notice of the villagers that Bela had died. He identified
the accused in dock.

P.W.5, Shib Sadhan Banerjee, Sub-Inspector of Police deposed
that on 13th November, 2001 the then Officer-in-Charge endorsed him
to enquire U.D. Case no. 13 of 2001 and before going to the P.O. he
gave requisition to BDO of G. Ghati P.S. for holding inquest on the
dead body of Bela. He went to the village Papradihi in the house of
Gour Ghosh and he held inquest on the dead body of Bela Ghosh in
presence of BDO and prepared a report, which was marked as Ext.2.

P.W.6, Marubala Mondal, mother of the deceased stated in her
evidence that her daughter was married to accused Arun Ghosh of
village Papradihi about six years ago in the month of Falgoon. After
marriage her daughter lived in her matrimonial home. She was
tortured physically by her husband in her presence and her father-in-
law and mother-in-law abused her daughter. Her daughter used to
visit their house from her father-in-law’s house and she reported to
them about torture inflicted on her by them. P.W. 6 further stated
that there was due of Rs. 5,000/- in cash at the time of marriage and
as their demand was not fulfilled, she was tortured by them.

P.W.7, Tarapada Patar stated in his evidence that Bela was his
sister’s daughter. On getting the information of death of Bela he
visited the house of the accused and found the dead body of Bela. At
the time of holding inquest of the dead body of Bela he reported to the
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police about the incident. He further stated that he wrote the
complaint as per instruction of his nephew Astick Mondal.

P.W.8, Sisir Maji, Constable of G. Ghati P.S. deposed that he
took the dead body of Bela to the morgue under dead body challan for
autopsy and identified the dead body to the autopsy surgeon. He
handed over the wearing apparels of the deceased to the Investigating
Officer, which was seized under a seizure list marked as Ext.4.

P.W.9, Santa Ghosh, a resident of village Papradihi stated in her
evidence that Bela had died but she could not know how she died.
P.W.9 was declared hostile by the prosecution.

P.W.10, Ashok Kumar Saha, Constable of G. Ghati P.S. stated in
his evidence that the then Constable Sisir Maji worked with him. He
brought wearing apparels of Bela and handed over the same to
Biswajit Saha, Sub-Inspector of Police in his presence.

P.W.11, Rabideb Mondal stated in his evidence that the
marriage of Bela was solemnised with Arun Ghosh of Papradihi. After
marriage Bela used to reside at her matrimonial home. The husband
and other inmates of her in-law’s house inflicted torture upon Bela on
demand of money. He heard the above torture from the brother of
Bela who told about the incident to him. He went to the Police
Station when the dead body of Bela was brought there.

P.W.12, Dr. Dipankar Guha Roy deposed that he held post
mortem examination on the dead body of Bela and the dead body was
identified by Constable Sisir Maji. On examination he found
characteristic ligature mark round the neck and considering the
other findings of the dead body, he opined that death was due to the
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effect of hanging as noted in the post mortem report ante mortem and
suicidal in nature.

P.W.13, Biswajit Saha, Investigating Officer stated in his
evidence that during investigation he visited the place of occurrence,
prepared sketch map with index, recorded statement of the witnesses
under Section 161 of the Code of Criminal Procedure, arrested
accused Arun Ghosh, collected inquest report held by BDO, G. Ghati
and collected post mortem report and on 11th February, 2002 he
handed over the case to S.I. Asis Kumar Nandi for further
investigation. Thereafter, Asis Kumar Nandi submitted charge sheet
against the accused under Sections 498A/304B/34 of the Indian
Penal Code.

On perusal of the evidence on record it appears that it was the
specific case of the prosecution that cruelty and harassment was
made by the accused person/appellant upon the victim Bela, for
which Bela hanged herself to death on 13th November, 2001 in her in-
law’s house within three years from the date of her marriage. As
discussed above, P.W.1, P.W.2, P.W.3, P.W.4 and P.W.6 stated that
the victim complained of torture by the appellant whenever she
visited her house. In the instant case, the statement made by P.W.2
and P.W.3, who were the eye witnesses, goes to show that soon before
her death the deceased was subjected to cruelty or harassment by the
accused in connection with demand of dowry. Nature of injury on the
deceased had been proved by medical evidence. Dr. Dipankar Guha
Roy categorically opined that the death was due to the effect of
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hanging as noted in the post mortem report ante mortem and suicidal
in nature.

It is a fact that the victim committed suicide within seven years
of her marriage. Section 113A of the Indian Evidence Act, 1872 reads
as follows:

“113A. Presumption as to abetment of suicide by a married
woman- When the question is whether the commission of suicide by a
woman had been abetted by her husband or any relative of her
husband and it is shown that she had committed suicide within a
period of seven years from the date of her marriage and that her
husband or such relative of her husband had subjected her to cruelty,
the Court may presume, having regard to all the other circumstances of
the case, that such suicide had been abetted by her husband or by
such relative of her husband.

Explanation – For the purposes of this section, “cruelty” shall
have the same meaning as in Section 498A of the Indian Penal Code.”

The said provision provides that Court may draw in the light of
attending circumstances a statutory presumption of abetment of
suicide in the event a housewife commits suicide within seven years
of marriage provided she was subjected to cruelty by her husband
and other in-laws. The cause of torture of the victim was for
demanding dowry. In the instant case, cruelty and harassment upon
the victim in her in-law’s house have been well proved by the
prosecution and accordingly, the accused person was convicted for
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the offence punishable under Sections 498A/306 of the Indian Penal
Code.

In Gurcharan Singh -vs- State of Punjab (supra) and in M.
Mohan -vs- State (supra), the Apex Court held Section 306 of the
Indian Penal Code criminalises sustained incitement for suicide. In
Ramesh Kumar -vs- State of Chattishgarh (supra) the Apex Court
held that merely because accused is found guilty under Section 498A
of the Indian Penal Code, he should not necessarily be held to be
guilty under Section 306 on the basis of same evidence. But in the
present case there is overwhelming evidence, the wife had been
subjected to torture both physical and mental by the appellant over
demand of dowry and the victim had repeatedly complained of such
torture to the parents and the neighbours of her husband.

On the other hand, in Rajeev Kumar -vs- State of Haryana
(supra) as relied by the prosecution, the Apex Court held that when
evidence justified the conviction of the appellant under Section 498A
and 306 of the Indian Penal Code instead of graver offence under
Section 304B of the Indian Penal Code, it is not necessary to remit
the matter to the trial Court for framing of charge under Section 306
of the Indian Penal Code and the accused also cannot complain for
want of opportunity to defend the charge under Section 306 of the
Indian Penal Code.

Hence, I uphold the order of conviction and sentence passed by
the learned Judge under Sections 498A/306 of the Indian Penal
Code. Since the appellant was granted bail on 19th September, 2012,
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bail bond of the appellant shall be cancelled and he is directed to
surrender forthwith before the trial court.

Period of detention suffered by the appellant during
investigation, enquiry and trial shall be set off from the substantive
sentence imposed upon them in terms of Section 428 of the Code of
Criminal Procedure.

Accordingly, the appeal is dismissed.

Copy of the judgement along with Lower Court Records be sent
down to the trial court at once for necessary compliance.

Urgent Photostat certified copy of this order, if applied for, be
supplied expeditiously after complying with all necessary legal
formalities.

(Rajarshi Bharadwaj, J.)

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