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Gadadhar Sur vs State Of West Bengal on 12 December, 2019

IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present:

The Hon’ble Justice Joymalya Bagchi
And
The Hon’ble Justice Suvra Ghosh

C.R.A. 415 of 2015
Gadadhar Sur

-Vs-

State of West Bengal

For the Appellant : Mr. Souvik Mitter .. Advocate
Mr. Avishek Sinha .. Advocate

For the State : Mr. Arun Kumar Maity .. Ld. A.P.P
Mr. Sanjay Bardhan .. Advocate
Mrs. Kaberi Sengupta .. Advocate

Heard on : 12.12.2019

Judgment on : 12.12.2019

Joymalya Bagchi, J. :-

The appeal is directed against the judgment and order dated 9th/10th June,

2015 passed by the learned Additional District Sessions Judge, Fast Track, 1st

Court, Hooghly in Sessions Trial (Old) No. 32 of 2010 [Sessions Trial (New) No.

2177 of 2014) convicting the appellant for commission of offence punishable

under Sections 498A/Section304B of the Indian Penal Code and sentencing him to

suffer rigorous imprisonment for three years and to pay fine of Rs.10,000/, in

default, to suffer rigorous imprisonment for one year more for the offence

punishable under Section 498A IPC and to suffer rigorous imprisonment for ten
years for the offence punishable under Section 304B IPC; both the sentences

shall run concurrently.

The prosecution case as alleged against the appellant and other accused

persons is to the effect that the victim namely, Chaitali Sur was married to the

appellant on 3rd July, 2003 according to Hindu rites and customs. At the time of

marriage, on the demand of the accused persons, Rs.2,00,000/-, earring,

necklace, bangles and jewellery weighing about 6 bharis, bed with bed articles,

almirah and other articles were given as dowry. Six months after the marriage,

the appellant and other accused persons raised further demand of Rs.80,000/-.

As the amount was not immediately paid, they started torturing the housewife.

Nemai Chandra Pal, brother of the housewife (PW1) intervened in the matter. He

requested the victim-housewife to return with him to her parental home but she

insisted to continue the relationship hoping for a better future. Unfortunately her

hopes were dashed. Under such circumstances, PW1 paid Rs.20,000/- as

additional dowry out of Rs.80,000/- as demanded and took his sister back to his

residence. On 18th December, 2007 appellant came to the parental home of the

victim and stated that they had arranged for funds and further amount of

Rs.60,000/- need not be paid. Thereafter, the appellant took back the victim to

the matrimonial home. On 24th December, 2007 elder brother of the appellant

namely, Tapas Sur, informed PW1 that the victim had committed suicide at her

matrimonial home. On the written complaint of PW1, Balagarh Police Station

Case No.189 of 2007 dated 25.12.2007 under Sections 498A/Section306 IPC and

Sections 3/Section4 of the Dowry Prohibition Act was registered for investigation against
the appellant and his parents namely, Tarak Sur Puspalata Sur and his

brothers namely, Tapas Sur Tapan Sur respectively. In conclusion of

investigation, charge-sheet was filed against the appellant and the aforesaid

accused persons. Charges were framed under Sections 498A/Section34 IPC, Sections

304B/Section34 IPC and Sections 306/Section34 IPC against the appellant and other accused

persons. In the course of trial, prosecution examined 15 witnesses and exhibited

a number of documents. The defence of the accused persons was that the victim

was suffering from depression as she could not give birth to a child. As a

consequence, she committed suicide. On an analysis of the evidence on record,

the trial Judge by the impugned judgment and order dated 9th/10th June, 2015

convicted and sentenced the appellant, as aforesaid. However, by the selfsame

judgment and order the other accused persons were acquitted of the charges

levelled against them.

Mr. Souvik Mitter, learned advocate along with Mr. Avishek Sinha, learned

advocate appearing for the appellant submitted that the prosecution case as

narrated in the FIR is at variance with the evidence on record particularly that of

the de-facto complainant (PW1). While in FIR it is claimed that on 18th December,

2007 the appellant had given up the further demand of Rs.60,000/- and had

taken back his wife back to the matrimonial home, there is no whisper about

such events in the deposition of the de facto complainant (PW1) or other

witnesses in court. Such variation with regard to the genesis of the prosecution

case raises serious doubt with regard to its credibility. On the other hand,

evidence has come on record that the deceased was being treated for
gynaecological purposes. Hence, the prosecution case does not appear to have

been proved beyond doubt and the appellant is entitled to an order of acquittal.

For the prosecution, Mr. Arun Kumar Maity, learned Additional Public

Prosecutor along with Mr. Sanjay Bardhan, learned advocate argued that the

prosecution witnesses have deposed in unison with regard to torture on the

housewife over additional demands of dowry. Minor variations with regard to

quantum of dowry as stated in the FIR and by witnesses in court would not affect

the truthfulness of the prosecution case. On the contrary, continuous torture

meted out to the housewife over demands of dowry till her unnatural death at the

matrimonial home is fully established. Plea of depression owing to barrenness

was not even raised by the appellant during his examination under Section 313

of the Code of Criminal Procedure and no explanation is forthcoming to rebut the

statutory presumption against the appellant under Section 113B of the Evidence

Act. Hence, the appeal is liable to be dismissed.

PW1, 2, 3, 7, 8 9 are the relatives of the deceased housewife.

PW1, Nemai Chandra Pal is her brother and the de-facto complainant in

the instant case. He deposed that the victim was married to the appellant on 3rd

April, 2003. At the time of marriage a sum of Rs.2,00,000/- and six bharis of gold

ornaments and other articles were given as dowry. Initially the matrimonial life

was normal. Subsequently, the appellant demanded Rs.60,000/- from them.

Sometimes he sent his wife to collect the money. PW1 was unable to meet the

demand immediately but after sometime gave Rs.20,000/- to his sister to hand

over the money to the accused persons. His sister was subjected to mental and
physical torture by the appellant as well as other accused persons. On 24th

December, 2007 his sister committed suicide by hanging at her matrimonial

home. Elder brother of the appellant namely, Tapas Sur informed them over

telephone.

In cross-examination he admitted that the brothers of the appellant used to

reside in separate mess. He regularly visited the matrimonial home of his sister

and lastly he had gone to their residence 35 days prior to the incident. He denied

the suggestion that owing to treatment in connection with a tumour in her uterus

his sister she was residing with them.

PW2, Mahananda Ghosh is the cousin of PW1 and the deceased. He

corroborated the evidence of PW1 with regard to further demand of dowry and

payment of Rs.20,000/- in part payment of such demand. He stated that the

appellant and other accused persons inflicted physical torture on the deceased

on various occasions. He accompanied PW1 to the matrimonial home of the

deceased and had talked with the appellant and other accused persons to settle

the issue but to no avail. Finally, the victim committed suicide at the residence of

the appellant.

In cross-examination, he stated that he lastly met the victim at her

maternal uncle’s home but could not state how many days prior to the incident

he had met her.

PW3, Haru Bala Pal is the mother of the deceased-housewife. She spoke of

the dowries paid at the time of marriage. She reiterated the evidence of PW1 2

with regard to further demand of cash and the physical and mental torture meted
out to the housewife due to non-fulfilment of such demand. She stated that some

money was paid and efforts were made to settle the matter but in vain.

In cross-examination, she admitted that she never visited the house of the

accused persons.

PW7, Hiranmoy Ghosh, is a nephew of PW1. He has corroborated the

evidence of P.W.1 with regard to subsequent demand of dowry by the appellant

and handing over Rs.20,000/- in part payment of such claim. He arrived at the

place of occurrence hearing the incident of suicide. He drafted the written

complaint as instructed by PW1. He proved the written complaint (Exhibit-1).

In cross-examination, he admitted that he had not gone to the

matrimonial home of the deceased-housewife.

PW8 (Eakari Ghosh) and PW9 (Samiran Pal) are the brothers-in-law of

PW1. They have corroborated the evidence of the said witness.

Apart from the evidence of the relations, prosecution has also examined

PW4 (Kashinath Ghosh) who is an employee of PW1. He spoke of dowries being

given at the time of marriage. He also stated that the deceased was subjected to

torture by the appellant and other in-laws over further demands of dowry and

Rs.20,000/- was handed over to her to be paid to her husband. He heard about

those incident from his employer PW1.

Other witnesses residing near the residence of the appellant however,

were declared hostile and were cross-examined with regard to their previous

statements to the police.

PW13, Dr. Partha Bose is the post mortem doctor. He opined that the

death was due to hanging ante mortem in nature. He proved the post mortem

report.

PW14 (Madhu Mangal Das) and PW15 (Goutam Chakraborty) are the

Investigating Officers in the instant case.

PW15 held inquest over the body of the deceased (Exhibit-7). Magisterial

inquest was also held. He examined the witnesses, prepared rough sketch map,

collected the post mortem report. Upon transfer, investigation was handed over

to PW14 who completed such investigation and submitted charge sheet.

Evidence of the prosecution witnesses particularly P.Ws.1, 2, 3, 7, 8 and

9 show that the appellant had married the victim on 3rd July, 2003. A sum of

Rs.2,00,000/-, gold ornaments and other articles were given to the appellant as

per demand. Six months after the incident, a further sum of Rs.80,000/- was

demanded by the appellant from PW1 through his wife. PW1 was unable to meet

such demand immediately. As a result, the housewife was subjected to physical

assault by the appellant. Although there is some evidence with regard to

participation in the torture by the other in-laws, the trial court has recorded an

order of acquittal in their favour particularly in view of the fact that the brothers

of the appellant were residing in separate mess and the allegations against the

parents-in-law appear to be general and omnibus in nature. On the other hand,

additional demand of dowry was made by the appellant and it has also come on

record that he received Rs.20,000/- in part payment of such demand through

his wife.

Prosecution evidence with regard to additional dowry has been criticised

on the ground that the witnesses contradicted one another on the quantum of

dowry demanded by the appellant. While in the FIR the amount demanded is

stated as Rs.80,000/-, PW1 (de-facto complainant) in court deposed the amount

was to the tune of Rs.60,000/-. Minor variation with regard to quantum of

additional dowry demanded, in my estimation, does not affect the truthfulness of

the prosecution case with regard to such demand. More so, when evidence of

relations with regard to additional demand of dowry and part payment of

Rs.20,000/- in response thereto finds corroboration from an independent

witness viz., PW4.

In the light of the aforesaid evidence on record, I am of the opinion that

prosecution has proved that after six months of marriage, the appellant made a

further demand of cash through his wife. Since such demand was not

immediately met, he physically assaulted and ill-treated his wife. Subsequently,

Rs.20,000/- was handed over to the appellant through his wife in part payment

of such dowry. These facts establish beyond doubt the ingredients of the offence

punishable under Section 498A of the Indian Penal Code. However, prosecution

witnesses appear to have given a different version with regard to the genesis of

the incident after payment of Rs.20,000/- to the appellant, as aforesaid. In the

FIR it is alleged after payment of the said sum of money, PW 1 brought back the

victim to her parental home. It is further alleged in the FIR seven days prior to

the incident i.e. 18th December, 2007, appellant came to the residence of PW 1

and said that he had given up his demand for additional dowry and took back
his wife. Subsequently, she committed suicide at the matrimonial home on the

fateful day. PW1 is strangely silent with regard to the aforesaid facts while

deposing in court. On the contrary, he gives an impression that the deceased

continued to stay at her matrimonial home after payment of Rs.20,000/- to the

appellant and the torture persisted till her unnatural death. This version of PW1

is at variance to the FIR.

Hence, I find it difficult to give credence to the aforesaid version of

prosecution witnesses in Court that the deceased was subjected to continuous

torture over non-payment of remainder dowry till her unnatural death. Thus, I

am constrained to hold that the live-link between the torture meted out to the

housewife on demand of dowry and her unnatural death has not been

established. A live-link between continuous torture over demand of dowry and

the unnatural death of the housewife within 7 years of marriage is a sine qua

non to establish an essential ingredient of the offence punishable under Section

304B of the Indian Penal Code i.e. “soon before her death the housewife was

subjected to cruelty or harassment by her husband or any relative of her husband

in connection with demand of dowry.”

Even if one does not believe the evidence of PW1 and other witnesses with

regard to torture continuing upon the housewife after payment of Rs.20,000/- to

the appellant, it cannot be denied that there was torture upon her over demands

of dowry during her lifetime. As per FIR, she was brought back to her

matrimonial home by the appellant seven days prior to the incident. Appellant is

completely silent during his examination under Section 313 of the Code of
Criminal Procedure with regard to the circumstances in which the housewife

committed suicide within seven years of marriage. Although a desperate plea of

depression owing to barrenness was argued before this court, I do not find any

cogent or convincing evidence in support of such defence apart from a stray

statement that she was under treatment for gynaecological reasons. Such vague

and non-specific defence, in my considered opinion, cannot in the light of the

evidence on record and other attending circumstances of the case rebut the

statutory presumption under Section 113A of the Evidence Act and I am inclined

to hold although the appellant may not be guilty for commission of offence

punishable under Section 304B of the Indian Penal Code, there is no escape

from his culpability under Section 306 of the Indian Penal Code.

In the light of the aforesaid discussion, I uphold the conviction and

sentence of the appellant under Section 498A of the Indian Penal Code.

I convert the conviction of the appellant from one under Section 304B IPC

to Section 306 IPC and direct that the appellant shall suffer imprisonment for

five years for commission of offence punishable under Section 306 of the Indian

Penal Code; both the sentences shall run concurrently.

The appeal is partly allowed.

Period of detention, if any, undergone by the appellant during

investigation, enquiry and trial shall be set off against the substantive sentence

imposed upon him in terms of Section 428 of the Code of Criminal Procedure.

The lower court records along with a copy of this judgment be sent down

at once to the learned trial court for necessary action.

Photostat certified copy of this judgment if applied for, be given to the

parties on priority basis on compliance of all formalities.

I agree.

(Suvra Ghosh, J.) (Joymalya Bagchi, J.)

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