Form No. J (1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLTE JURISDICTION
The Hon’ble Justice Joymalya Bagchi
CRA 587 of 2016
(CRAN 3965 of 2016)
The State of West Bengal
For the appellant : Mr. Prabir Majumder,
For the State/respondent : Mr. Ayan Basu.
Heard on : 28/03/2017. Judgment on : 28/03/2017. Joymalya Bagchi, J.:
With the consent of the parties, this appeal is taken up for hearing.
The lower Court records are received.
Judgment and order dated 11/10/2012 convicting the appellant for
committing of offences punishable under Sections 323/307 Part II of the
Indian Penal Code and the order dated 16/6/2016 sentencing him to suffer
rigorous imprisonment for five years and to pay fine of Rs.10,000/- in default
to suffer further rigorous imprisonment for six months has been assailed.
Prosecution case, as alleged against the appellant, is to the effect that
he was married to one Sarmistha Chowdhury on 7/12/1994. From the said
marriage two daughters were born. Soon after the marriage the victim was
subjected to torture and on 22/12/2011 she was physically assaulted by the
appellant with belt and helmet. The appellant developed an illicit relation
with one Soma Majumder, a receptionist of G.M. Modi Hospital, Delhi. He
wanted to move to Delhi and live with the said Soma Chowdhury and
consequentially wanted to kill the victim. On 17/3/2012 in the morning, the
victim was again physically assaulted by her husband. She informed her
elder brother to come with the father of the appellant and the appellant even
assaulted his own father. Over such issue, Kotwali Police Station case no.
186 of 2012 under Sections 498A/307 of the Indian Penal Code was
registered against the appellant. In conclusion of investigation, charge sheet
was filed under Sections 323/307 of the Indian Penal Code. The case was
committed to the Court of Sessions and transferred to the Court of the
learned Additional Sessions Judge, 2nd Court, Nadia for trial and disposal.
Charge was framed under Sections 323/307 of the Indian Penal Code.
Appellant pleaded not guilty and claimed to be tried.
In course of trial, prosecution examined the complainant as P.W. 1. In
conclusion of trial, the learned trial Judge by judgment and order dated
September 19, 2012 convicted the appellant for commission of offence
punishable under Section 323/307 of the Indian Penal Code and released
him on probation upon execution of bond for a period of three yeas with one
surety who shall be his wife, Smt. Sarmistha Chowdhury. The appellant was
directed to remain under the supervision of the District Probation Officer and
abstain from taking any intoxicant or to disturb any of his family members
particularly his wife. He was also directed to take care of his children
including their education and well being. He was also directed to liquidate
the loan taken by mortgaging the dwelling house and not to indulge any
unlawful activity. He was also directed to remain available before the District
Probation Officer once every fortnight. Subsequently, on an adverse report
filed by the Probationer Officer, order of probation was suspended and the
appellant was directed to suffer rigorous imprisonment for five years and to
pay fine of Rs.10,000/- in default to suffer rigorous imprisonment for six
months more. At this stage, the appellant preferred the instant appeal
against the aforesaid judgement and order of conviction and sentence.
Mr. Majumder, learned counsel for the petitioner submits that the
evidence on record is furnished does not establish the ingredients of the
allege offences. Apart from the defacto-complainant, no witness was
examined and hence the conviction is liable to be set aside. He also submits
that the report of the probation officer is incorrect and the order of probation
ought not to have been suspended.
On the other hand, Mr. Basu, learned counsel for the State submits
that in view of the conviction under Section 307 Cr.P.C. the trial court ought
not to have extended the beneficial effects of an order of probation to the
appellant. He submits that evidence of P.W.1 clearly establishes that the
appellant had tried to throttle her by pressing her mouth on a pillow and
therefore the prosecution case has been proved beyond reasonable doubt.
The appellant violated the terms of the order of probation and accordingly the
sentence was rightly imposed upon him.
P.W.1 is the sole witness in the instant case. I have gone through her
evidence. She deposed that she had been married to the appellant in 1994
and during 18 years of her marriage, she was physically tortured by the
appellant. The appellant used to deal in medicines. Since October, 2010 he
started neglecting his business and starting chatting with different ladies on
internet. When she objected such conduct, the appellant became infuriated
and tried to kill her by pressing a pillow on her face. She was pushed against
the boundary wall by her neck. On 22.12.2011 there was an altercation with
her husband and her husband assaulted her with his helmet on her face. As
a result she broke a tooth and sustained bleeding injury on her nose. She
was treated by Dr. Sudeb Biswas and R. Ahammed and Dr. Arijit Mukherjee.
She endured the torture but did not inform the police. On 25.2.2012 her
husband again assaulted her and she took refugee at her father-in-law’s
house at Ghurni. On the request of her husband she came back to the
matrimonial home on 15th March, 2012. On 17.03.2011 at about 11 A.M. her
husband pressed her face against the mattress of the bed and she had
difficult in breathing. Her head was pushed against the grill door and she
was throttled in order to kill her. She informed the incident to her brother,
who came with her father-in-law. The appellant assaulted her in presence of
her father-in-law. Her father-in-law was also assaulted. Her brother took her
to hospital. She informed the incident to the police (Ext.1).
From the aforesaid evidence, it is clear that appellant had subjected
the defacto-complainant to continuous torture, ill-treatment and assault.
Lastly on 17.03.2012 the appellant had pressed her face against the mattress
and also pushed her head against the iron ball and throttled her. The
question is whether the appellant tried to kill the victim by such acts.
I am of the opinion that the victim and the appellant were alone in the
house. Had the appellant really desired to kill the victim he could have, in
fact, done so before her brother arrived. In view of the aforesaid facts,
although I am convinced that there is ample evidence on record that the
victim was assaulted by the appellant but I am unable to accept the
contention of the learned counsel for the State that the appellant had
intended to kill the victim but could not do so due to supervening
circumstances. Hence, I modify the conviction of the appellant and reduce
the same to Section 323 of IPC.
The appellant has already undergone imprisonment for one year and
In the aforesaid factual backdrop, I am of the opinion that the
substantive sentence of imprisonment imposed on the appellant may be
reduced while the fine may be enhanced and directed to be paid to the victim
P.W.1 as and why by way of compensation for the agony and pain suffered
her due to conduct of the appellant.
Accordingly, I modify the sentence imposed on the appellant and that
he shall suffer imprisonment for the period already undergone and shall pay
a fine of Rs.30,000/- in default shall suffer rigorous imprisonment for three
Fine, if realised, shall be paid to the victim, P.W.1 in terms of Section
357(1) of the Cr.P.C.
With the aforesaid modification, the appeal is disposed of. The
application being CRAN 3965 of 2016 is accordingly disposed of.
Let the L.C.R. alongwith a copy of the judgement be sent back to the
Court below for information and necessary action.
Urgent photostat certified copy of this order, if applied for, be given to
the parties on priority basis upon compliance of all formalities.
(Joymalya Bagchi, J.)