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Dr. Shib Sankar Ghosh-vs-Ashim Rooj And Ors. on 21 March, 2007

Calcutta High Court Dr. Shib Sankar Ghosh-vs-Ashim Rooj And Ors. on 21 March, 2007
Equivalent citations:2007 CriLJ 2512
Author: P S Datta
Bench: P S Datta

ORDER

Partha Sakha Datta, J.

1. By this application under Section 397/401 read with Section 482 of the Cr. P.C. the judgment and order dated 18-5-2005 passed by the learned Assistant Sessions Judge, Suri. Birbhum in Sessions Case No. 7 of 2003 corresponding to G.R. Case No. 101 of 1999 whereby the learned Judge acquitted three accused persons namely Uttam Rooj (O. P. No. 3), Latika Rooj (O. P. No. 4) and Dipti Rooj (O. P. No. 9) of the charges under Section 498A/306 of the I.P.C. is under challenge.

2. P.W. 1 Shib Sankar Ghosh, the father of the victim lodged a complaint with the O. C. Dubrajpur P.S. on 8-2-1999 at 15.50 hours against 11 persons including the nine opposite parties herein alleging that his daughter Lakshi Rooj was married to Ashim Rooj (O. P. No. 1) at Tarapith Temple following love affairs was not taken kindly by the members of the matrimonial family as a result of which the members of the family of Ashim did not allow his daughter and Ashim to enter into their house. Ashim and Lakshi took shelter in another house of Ashim at Panditpur and the house of Ashim’s father’s elder brother Balahari Rooj was having a common courtyard with Ashim at Panditpur. While staying at Panditpur Latika Rooj, wife of Uttam Rooj. Basanti Rooj, wife of Tarun Rooj used to go to the Panditpur house and caused torture to the girl physically and mentally telling that she should be ashamed of herself since her father (de facto-complainant) had no capability to offer dowry and asked her to commit suicide or else they would kill her. The victim narrated these incidents to the de facto complainant and the relatives of Ashim or Ashim did not raise any protest against such behaviour of Latika and Basanti and on the contrary Ashim said that there was nothing to be worried and he would look after the matter. On 4-2-1999 the son of Balahari namely Ashis Rooj (O. P. No. 8) herein and his wife Dipti Rooj picked up quarrel with the victim and provoked her to commit suicide as a result of which being mentally hurt the victim poured kerosene oil on her body in the house of Balahari Rooj and she succumbed to the injury in the hospital where she made a dying declaration shortly before her death.

3. On this FIR investigation was conducted and police submitted charge-sheet against only three persons namely Uttam Rooj, Latika Rooj and Dipti Rooj under Section 498A/306, I.P.C. and the learned trial Court also framed charge against the three persons who are Uttam, Latika and Dipti (O. P. Nos. 3, 4 and 9) herein. The other accused persons who were named in the FIR were not charge-sheeted as there was prayer for discharge of them.

4. Learned trial Court upon consideration of evidence on record found the three accused persons not guilty of the offence and accordingly acquitted them of the charges and it is against this judgment and order of acquittal dated 18-5-2005 that the de facto complainant has preferred this revisional application contending inter alia that the learned trial Court did not appreciate evidence properly, that the mother of the deceased said in evidence that there was demand of dowry, that the learned trial Court forgot to remember himself the presumption arising under Section 113A of the Evidence Act since the victim died within a year of marriage, that the learned trial Court was wrong in disbelieving the dying declaration made by the victim in the presence of the nurse of the purported (sic) before the police officer and thus the Judgment and order of the learned trial Court is not sustainable.

5. Of the 15 witnesses examined by the prosecution it is the evidence of P.W. 1 Shib Sankar Ghosh, the father of the victim. P.W. Gouri Ghosh (wife of P.W. 1) and P.W. 7 Sanjoy Ghosh, the son of P.W. 1 that alone call for consideration because evidence of other witnesses are of no assistance since some of such witnesses are purely formal ones and some again did not say anything at all. P.W. 1 said that in the house at Panditpur there was an altercation between Ashim and his daughter relating to payment of dowry and that Uttam Rooj, Manik Rooj, Tarun Rooj, Kanchan Rooj, Latika Rooj, Basanti Rooj all used to commit cruelty mentally and physically as the victim could not give money as a result of which the victim committed suicide on 4-2-1999. It is the evidence of P.W. 6 that Ashim used to misbehave with her daughter for non-payment of money as demanded by Ashim, Manik, Tarun, Uttam, Kanchan, Latika and Basanti all the family members as also Ashim used to ill-treat and misbehave with her daughter. Her daughter used to tell her about such ill-treatment by her husband and his family members whenever she would visit her house. Lakshi committed suicide by setting fire to her body on 4-2-1999. Evidence of P.W. 7 is to the same effect and it bears no repetition.

6. P.W. 2 Aruna Dutta did not tell any-thing and she was declared hostile. P.W. 3 Bhasta Pada Dutta is a witness to the seizure list and he also turned hostile. P.W. 4 Dipti Dey is a hearsay witness having no knowledge as to why or how the victim committed suicide. She never visited the house of the couple at Panditpur. P.W. 5 Netai Rooj was tendered for cross-examination which was declined. P.W. 8 is one Ajit Pada Dutta who pleaded ignorance about the matter as he said that he could not say how the victim resided at Pandipur. Evidence of P.W. 9 Saraja Bala Dutta, a senior nurse at Suri Sadar Hospital is of some relevance on the ground that in her presence the O. C. of Suri Police Station Ashim Mondal recorded the dying declaration of the victim Lakshi Rooj (Ext. 2) P.W. 10 is Dr. D. K. Mukhopadhyay under whom the victim was admitted in the hospital at Suri Sadar and he wrote to the Superintendent of Suri Sadar Hospital for arrangement of recording dying declaration of the victim and the letter was marked (Ext. 4). P.W. 11 is Kamini Mohan Sarkar, Additional District Magistrate and District Land Reforms Officer who held inquest over the dead body of the victim (Ext. 5). P.W. 12 is Ashim Kumar Mondal who says as the attending physician Dr. D. K. Mukherjee, P.W. 10 refused to record the dying declaration of the victim he himself recorded the dying declaration in the presence of P.W. 1. P.W. 13 is Madhab Chandra Mondal, S.I. of Police who also held inquest over the dead body. P.W. 14 Arun Kumar Das is the I. O. of the case. P.W. 15 Chandana Kahar, a member of the staff of Suri Sadar Hospital who proved her signature in the dying declaration says in her cross-examination that she signed on a blank paper and her signature was taken by the police.

7. It is noticeable that the FIR was lodged against 11 accused persons including the husband of the victim but charge-sheet was submitted only against three accused persons namely Uttam Rooj, Latika Rooj and Dipti Rooj. Learned trial Court framed charges against only the aforesaid three accused persons and upon consideration of evidence on record found them not guilty of the charges and acquitted them. Before the learned trial Court no petition was filed by the prosecution or the de facto complainant that although 8 accused persons out of 11 accused persons have not been chargesheeted they may be tried in the Court on the alleged ground that in the police papers evidence was transpiring against them. In the midst of trial no petition was filed under Section 319 of the Cr. P.C. for addition of the 8 accused persons to be charged with. Balahari Rooj one of the accused in the FIR reportedly died subsequently. But in the revisional application all the 10 accused persons have been made opposite parties and I fail to understand how a revisional application is maintainable against Ashim, Manik, Kanchan, Tarun, Basanti and Ashis since they did not face trial and they were not charge-sheeted. This is one aspect of the matter that must be taken note of.

8. If we go through the FIR, we find that there is no allegation against Ashim, Manik, Uttam, Kanchan, Tarun. It is in the FIR that Latika and Basanti used to go to the couple’s house at Panditpur and would physically and mentally torture the victim on the ground that she married Ashim out of love because of her father’s inability to pay dowry. The matter of the fact is that Basanti Rooj was not charge-sheeted and she did not face trial before the learned trial Court. Again in the FIR there is no iota of allegation that the victim’s husband, Ashim ever perpetrated torture upon the victim on demand of dowry. If the FIR is strictly construed it would not reveal at all that the accused persons who faced trial ever demanded dowry. The grudge of the accused persons was against the victim’s marrying Ashim Rooj out of love because of her father’s inability to pay dowry. So far as the incident of 4-2-1999 is concerned it centers round Ashis and his wife Dipti but Ashis has not been charge-sheeted and there was no consequently occasion of his facing trial.

9. Mr. Chatterjee, learned Advocate appearing for the petitioner laid stress upon non-consideration of the dying declaration of the victim which was recorded by P.W. 12 in the presence of P.W. 1, P.W. 15 and P.W. 9, P.W. 1 said in his cross-examination that no dying declaration was recorded in his presence. P.W. 15 said in her cross-examination that she signed on a blank sheet of a paper at the instance of the police. P.W. 15 did not say in her examina-tion in-chief that the victim made any dying declaration in her presence in the hospital. It is P.W. 9 who says that in her presence P.W. 12 recorded dying declaration. P.W. 12 says that as P.W. 10 refused to record dying declaration he recorded it in the presence of P.W. 1 but P.W. 1 denied that any dying declaration was recorded in his presence. P.W. 10 never said that he refused to record dying declaration of the victim or that he was requested by P.W. 12 to record any such dying declaration; on the contrary he said that he wrote a letter to the Superintendent of the hospital to record a dying declaration of the victim. There is no evidence at all that the victim was physically and mentally capable of making any such dying declaration. The I. O. himself recorded in his own words that the victim was unable to sign. In the circumstances, the learned Magistrate was not unjustified in not relying on such dying declaration.

10. Even if the dying declaration is taken into consideration still then the prosecution case does not move an inch. This dying declaration is only against the accused Dipti Rooj. Dipti used to telephone her and tell her that she would not be happy and on 4-2-1999 there was a quarrel with her and then being unable to bear the quarrel she poured kerosene oil in her body. In that dying declaration she said that she loved her husband and her husband also loved her and it is Dipti who used to have quarrel with her. Now, Dipti picking up quarrel with the victim off and on as per the dying declaration fails to make out a clear case under Section 498A or under Section 306 of the I.P.C. There is nothing more in the dying declaration that can rope Dipti Rooj with the aforesaid charges.

11. As regards Uttam Rooj, as said above, there is no allegation against him in the FIR. So far as the incident of 4-2-1999 is concerned there is no presence of Uttam and Latika in the couple’s house at Panditpur. In evidence P.W. 1, P.W. 6 and P.W. 7 roped in all the 10 accused persons conjointly with the general allegation that all of them ill-treated the victim on the ground that she could not give money. P.W. 1 said in his cross-examination that he never saw any ill-treatment and torture upon his daughter by the accused persons. From his evidence it does not transpire as to when his daughter visited his house to tell him about ill-treatment and torture. In evidence there was clearly discernible attempt to make a development so as to entangle all the members of the in-laws family of the victim although FIR related to only Latika, Basanti, Ashis and Dipti. P.W. 1 did not utter a single word in his evidence against the accused Ashis Rooj. Even he did not entangle Dipti in his evidence-in-chief with any specific allegation. P.W. 6 implicated even the husband of the victim though victim in her dying declaration spoke highly of her husband. Neither it is in the FIR nor it is in dying declaration that Ashish demanded dowry. Evidence of P.W. 6 did not mention anything against Dipti. According to I. O. (P.W. 14), P.W. 6 did not tell him that the family members of Ashish namely Uttam, Kanchyan, Manik, Tarun and Basanti used to misbehave with and ill-treat her daughter. P.W. 7 also did not tell the I. O. that Uttam, Ashish, Kanchan, Tarun and Basanti ill-treated the victim. It is P.W. 7 who in express terms implicated Dipti but evidence against Dipti is so poor and meagre that no conviction can be recorded against her on such evidence and on such dying declaration. As said above, mere picking up quarrel with the victim without anything more let alone abetting commission of suicide does not satisfy the ingredient of Section 498A I.P.C.

12. Having considered the evidence of the witnesses I do not find that the learned trial Court committed any illegality in recording an order of acquittal.

13. Accordingly, the revisional application fails. It is dismissed. The judgment and order of the learned trial Court is confirmed.

14. A copy of the judgment and order may be sent to the learned Assistant Sessions Judge, Suri, Birbhum with reference to the Sessions Case No. 7 of 2003.

15. Criminal section is directed to supply the xerox certified copy of this judgment as early as possible.

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