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Dipankar Chowdhury vs The State Of West Bengal on 28 March, 2017

Form No. J (1)

IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLTE JURISDICTION
APPELLATE SIDE

Present :
The Hon’ble Justice Joymalya Bagchi

CRA 587 of 2016
(CRAN 3965 of 2016)

Dipankar Chowdhury
Vs.
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

eight months.

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

months more.

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.)

ardr/rkd

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