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Gopal Saha & Anr vs The State Of West Bengal on 17 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. 492 of 2014

Gopal Saha Anr.

Versus
The State of West Bengal

For the Appellants : Mr. Kamalesh Chandra Saha
Ms. Payel Mitra

For the State : Mr. Rana Mukherjee, A.P.P.

Ms. Debjani Sahu

Heard on :4th July, 2018, 17th July, 2018 4th October, 2018.

Judgement on: 17th January, 2019

Rajarshi Bharadwaj, J.:

This appeal arose out of a judgement and order dated 26th
June, 2014 passed by the learned Additional Sessions Judge, 5th
Court, Barasat, North 24-Parganas in S.T. No. 3(8)12 arising out of
S.C. No. 1(6)12 corresponding to New Town P.S. Case No. 241 dated
7th September, 2010 convicting the accused/appellants for the
offence punishable under Section 498A of the Indian Penal Code and
sentencing them to suffer simple imprisonment for three years and
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also to pay fine of Rs. 1000/- each; in default to suffer simple
imprisonment for another one month.

The fact of the case in brief is that one Ratan Rajbanshi of Netaji
Pally, Jagatpur, father of the victim lodged a complaint to the New
Town Police Station alleging that his daughter Ranita was married
with Gopal Saha, son of late Sailen Saha of Nutan Pally, New Town
P.S. on 19th February, 2009 according to Hindu rites and customs
and in their marriage Rs. 50000/- in cash, gold ornaments, furniture
and various utensils were given as dowry. His daughter was residing
at her in-law’s house but after one month of her marriage, her
husband and mother-in-law started torturing on her physically and
mentally. It was further alleged that his daughter sometimes used to
come to his house and stated such fact. However, on 2nd June, 2010
Ranita gave birth to a daughter, but after birth of her daughter, the
accused persons increased the grade of torture on her and as a
result, she was compelled to commit suicide on 7th September, 2010
at 10.45 a.m. by hanging.

On the basis of the written complaint, a criminal case, being
New Town P.S. Case no. 241 dated 7th September, 2010 was initiated.
Investigation was started and after completion of investigation, charge
sheet was submitted under Sections 498A/306/34 of the Indian
Penal Code against the accused persons, who pleaded not guilty and
claimed to be tried.

Learned advocate for the appellant submitted that there were
contradiction between the statements of P.W.1 and P.W.3, being the
father and mother of the deceased regarding time, place and manner
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of the occurrence. Moreover, the deposition of the complainant was
not corroborated his evidence with the contents of the First
Information Report. He further submitted that P.W.2 and P.W.4 were
the independent witnesses, but P.W.2 was declared hostile. Though
P.W.2 was the material witness in the instant case, he did not
support the prosecution case. The evidence of P.W.4 was hearsay
evidence as he heard the incident from his wife, but his wife was not
a witness in the instant case. P.W.5 was the formal witness who had
got no personal knowledge regarding the case. He has relied on the
decision of the Hon’ble Supreme Court of India in the case of State of
Himachal Pradesh -vs- Trilok Chand Anr. reported in 2018(1)
Crimes 79 (SC), wherein it was held that, “in view of discrepancies in
prosecution case and contradictions in statements by prosecution
witnesses, the accused cannot be convicted.” 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 a short period of her marriage, as evident from
the First Information Report. So, in view of provision under Section
113A of the Indian Evidence Act, 1872, it could be presumed that the
victim committed suicide in consequence of abatement by the
accused persons. He further submitted that evidence as to the torture
upon the victim by the appellants has been proved by the prosecution
witnesses. He further argued that as the victim was subjected to
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cruelty by the accused persons, she put to end her life leaving her
suckling baby. He further submitted that no reason was stated for
commission of suicide in their examination under Section 313 of the
Code of Criminal Procedure. Therefore, it is presumed that prior to
committing suicide, she was subjected to cruelty by the accused
persons. P.W.1 and P.W.3, who were the parents of the victim, were
the best witnesses whose evidence could be treated as direct evidence
because they came to know the manner of torture upon the victim by
the accused persons. 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 five
witnesses out of seven witnesses in the charge sheet to prove the
charge of cruelty.

P.W.1, Ratan Rajbanshi, complainant as well as the father of the
victim stated in his evidence that his daughter was married with
Gopal Saha on 19th February, 2009 and at the time of marriage he
gave Rs. 50,000/- cash as dowry to Gopal Saha and some gold
ornaments and other articles. After one month of marriage her
husband and mother-in-law started torturing her physically and
mentally for bringing money from him as dowry. He came to know
the torture from his daughter when he used to visit her occasionally.
He requested her to make adjustment with her husband and in-laws.
Subsequently, his daughter gave birth to a child. On 7th September,
2010 his daughter committed suicide by hanging due to torture
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inflicted by her husband and mother-in-law. The child of his
daughter stayed with him. He submitted written complaint, which
was written by his neighbour Susanta Mondal as per his instruction.

During cross-examination P.W.1 stated that he did not lodge
any complaint against the accused persons prior to death of his
daughter regarding alleged torture. He did not mention in his
complaint as to torturing upon his daughter by the accused persons
for bringing more money as dowry.

P.W.2, Sunil Majumder, neighbour, who was an independent
witness, was declared hostile by the prosecution.

P.W.3, Shipra Rajbanshi, mother of the victim stated in her
evidence that her daughter Ranita was married with accused Gopal
on 19th February, 2009 according to Hindu rites and at the time of
marriage gold ornaments and articles were gifted to her daughter and
also Rs. 50,000/- twice was given to her son-in-law as demand of
dowry. After one month of her daughter’s marriage, the husband and
mother-in-law started torturing upon her daughter demanding more
dowry. Subsequently, they increased torturing upon her daughter
and being unable to bear the torture both physically and mentally by
her husband and mother-in-law, her daughter committed suicide by
hanging at her matrimonial home on 7th September, 2010. She
stated that the female child of her daughter was under her custody.
Police interrogated her about the incident of this case and she
identified both the accused persons.

During cross-examination P.W.3 stated that she could not say
the specific dates, months and year when husband and mother-in-

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law tortured upon her daughter. She did not state to the
Investigating Officer during interrogation that as per demand of the
accused they were compelled to give Rs. 50,000/- to the accused as
dowry.

P.W.4, Kajal Mondal, neighbour of the accused stated that
Ranita used to stay beside his house with her in-laws. She
committed suicide by hanging at her matrimonial home on 7th
September, 2010 within one and half years of her marriage. When
Ranita used to visit his house, she used to complain to his wife that
she was being tortured by her husband and mother-in-law regarding
dowry.

P.W.5, Projati Ranjan Biswas, Sub-Inspector of New Town Police
stated that he received one complaint on 7th September, 2010 from
Ratan Rajbanshi and accordingly, he started New Town P.S. Case no.
241 dated 7th September, 2010 under Section 498A/306/34 of the
Indian Penal Code against the accused persons.

On close reading of the evidence on record it appears that it was
the specific case of the prosecution that cruelty was made by the
accused persons/appellants upon the victim Ranita, for which she
had to commit suicide in her in-law’s house within a short period of
her marriage. As discussed above, P.W.1, P.W.3 and P.W.4 stated
that the victim was tortured by the appellants and regular demand of
further dowry could not be fulfilled by the victim’s father resulting in
suicide by the victim lady.

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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 learned Trial Judge held that cruelty upon the
victim in her in-law’s house had been proved by the prosecution but
that cruelty was not sufficient to establish abetment. It is admitted
fact that Ranita committed suicide but the prosecution failed to prove
beyond reasonable doubt that such suicide was the result of
instigation came from the side of the accused persons. Therefore, the
prosecution failed to prove the offence punishable under Section 306
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of the Indian Penal Code. Accordingly, the accused
persons/appellants were convicted for the offence punishable under
Section 498A of the Indian Penal Code.

Reliance has been placed by learned advocate for the appellants
in the case of State of Himachal Pradesh -vs- Trilok Chand Anr.
(supra) which is not applicable in the instant case, as the
discrepancies of the prosecution case and contradictions in the
statement of the witnesses are not fatal for the case.

Hence, I uphold the order of conviction of the appellants under
Section 498A of the Indian Penal Code. Therefore, bail bond of the
appellants is cancelled and they are directed to surrender forthwith
before the trial court.

Coming to the issue of sentence of the appellants, I find that
both the appellants are in bail and no other criminal cases are
pending against them. Under the facts and circumstances of this
case, sentence upon the appellants is modified to the extent that the
appellants are sentenced to suffer rigorous imprisonment for two
years instead of three years for the offence punishable under Section
498A of the Indian Penal Code and to pay fine of Rs. 1000/- each; in
default to suffer simple imprisonment for another one month.

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.

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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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