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Moloy Banerjee & Anr vs The State Of West Bengal on 23 September, 2019

IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE

PRESENT:

THE HON’BLE JUSTICE TIRTHANKAR GHOSH

CRR 1982 of 2010
Moloy Banerjee Anr.

-vs.-

The State of West Bengal

For the Petitioners : Mr. Himangshu De
Mr. Navanil De
Mr. Rejeshar Chakraborty

For the State : Mr. Saswata Gopal Mukherjee
Mrs. Sayanti Santra

Heard on : 05/07/2019; 09/07/2019;
19/07/2019 29/07/2019

Judgment on : 23/09/2019

Tirthankar Ghosh, J:-

The revisional application has been preferred against the judgment and

order dated 9th June, 2010 passed by the Ld. Additional Sessions Judge, 1st

Court, Hooghly in Criminal Appeal No. 22 of 2007, wherein the Ld. Appellate

Court was pleased to affirm the judgment and order of conviction passed by the

Ld. Judicial Magistrate, 2nd Court, Chandernagore in TR Case No. 193 of 1999

(GR Case No. 614 of 1993) under Section 498A of the Indian Penal Code and the
sentence of the appellants/petitioners for suffering rigorous imprisonment for 6

months and to pay a fine of Rs. 200/- in default to suffer simple imprisonment

for 10 days.

The prosecution case in short is that the marriage between the

complainant Tanusree Banerjee and Moloy Banerjee (petitioner No.1) was

solemnized on 21st November, 1992 in accordance with Hindu rites and customs

at Chandernagore. At the time of marriage the father of the complainant gave Rs.

15000/- in cash, gold ornaments, wrist watch, cot with beddings and other

materials. The accused/petitioners purchased a steel almirah and Atlas cycle by

utilizing the aforesaid amount of Rs. 15000/. According to the complainant she

was disliked by her husband and other inmates at her matrimonial home who

used to torture her both physically and mentally. The complainant informed

such incidents to her father and other relatives by sending letter. The

complainant further alleged that the accused persons demanded further dowry of

Rs. 10,000/- in cash which her brother failed to satisfy and as a result on 12th

July, 1993 she was driven out from her matrimonial home and she had to take

shelter at her paternal home. At the time of leaving her matrimonial home, she

could only bring the cot, beddings, some utensils and clothing with her and other

materials including her ornaments were lying at her matrimonial home.

On the basis of a written complaint filed by the said Tanusree Banerjee

with the Officer-in-Charge, Chandernagore Police Station, a case was registered
being Chandernagore Police Station Case No. 90 dated 25th August, 1993 under

Section 498A of the IPC.

On completion of investigation, the Investigation Officer of the case

submitted chargesheet under Sections 498A and Section120B of the IPC against the

present petitioners.

The Ld. Magistrate after compliance with the provisions of law was pleased

to frame charge under Section 498A of IPC and the contents of the charge were

thereafter read over to the accused persons who pleaded not guilty and claimed

to be tried.

The prosecution in order to prove its case relied upon 15 witnesses being

PW1, Tanusree Banerjee – defacto complainant; PW2, Sk. Nasiruddin; PW3,

Aklima Bibi; PW4, Sk. Jalaluddin; PW5, Chandi Das Chakraborty; PW6, Sk.

Naser; PW7, Ahindra Kumar Banerjee; PW8, Smt. Aparna Banerjee; PW9, Gakul

Roy; PW10, Smt. Pratima Banerjee; PW11, Dibakar Banerjee ; PW12, Kalipada

Ghoshal; PW13, cousin sister of defacto complainant; PW14, O.C of

Chandernagore P.S; PW15, I.O. of the case. The prosecution also relied upon

certain documents being letters written by Tanusree Banerjee (Exts. 1, 1/1, 1/2

1/3), endorsement of written complaint (Ext.2/1), signature of PW13 on

seizure list (Ext.3/1) and formal FIR (Ext.4).

On conclusion of prosecution evidence the Ld. Court fixed date for

examination of accused persons under Section 313 of the CrPC. After

examination of the accused persons under Section 313 of the CrPC, the Ld.

Magistrate fixed date for the defence to examine its witnesses, however, the

defence examined none and as such the Ld. Magistrate was pleased to fix date for

hearing of final arguments of the case. After the final arguments were over, the

Ld. Magistrate fixed date for delivery of judgment. On 25th May, 2007, the Ld.

Court by its judgment was pleased to arrive at a finding of guilt in respect of the

present petitioners for commission of offence punishable under Section 498A of

the IPC and sentenced them as aforesaid.

I have considered the judgments delivered by the Ld. Trial Court as also

that of the Ld. Appellate Court. There are certain contradictions which prima

facie raises doubt regarding the actual incident which could have taken place

and the narration of facts before the Court by the prosecution witnesses. The

prosecution witness No.1 although in her evidence did not narrate any factum of

torture on 7th July, 1993 and on 8th July, 1993 yet, a detailed version was given

by the PW7, Ahindra Kumar Banerjee and PW12, Kalipada Ghoshal. According

to PW7, on 7th July, 1993 the accused persons mercilessly assaulted his sister,

on 8th July, 1993 he along with his maternal uncle arrived at matrimonial home

of his sister at Chandernagore and his sister was treated at Chandernagore

hospital, thereafter his sister returned back to her matrimonial home. After three
days on 11th July, 1993 his sister was further assaulted and on 12th July, 1993

when he arrived at the matrimonial home of his sister he found her crying.

PW12 in his examination-in-chief stated that his niece namely, Tanusree

Banerjee, PW1 was tortured both physically and mentally at her matrimonial

home and on 7th July, 1993 he was informed about such assault, thereafter on

8th July, 1993 morning when he went to the matrimonial home of the defacto

complainant, he found the spot of injury in her body and he was informed by the

defacto complainant that she was physically assaulted by her husband and her

mother-in-law and brother-in-law used to keep her in a room under lock. He

went to Chandernagore hospital along with the defacto complainant for

treatment. On 11th July, 1993 the defacto complainant was further assaulted

and on 12th July, 1993 when he went to her matrimonial home he found that she

was crying and she was being driven out from the house.

The peculiarity in deposition of PW7 and PW12 is that such detailed

narrations regarding torture are absent both in the FIR or in the deposition of

PW1, Tanusree Banerjee. The incident of 7th July, 1993 was never stated by the

defacto complainant and no details regarding her treatment on 8th July, 1993 at

Chandernagore hospital was narrated by her in her deposition before the Court.

The judgments delivered by the Ld. Trial Court and the Ld. Appellate Court do

not reflect that any medical documents regarding her treatment were ever

produced before the Court, although the Ld. Appellate Court tried to dilute the
non-production of such medical evidence before the Court by observing that

medical evidence is corroborative piece of evidence and the evidence of the doctor

is to be only considered along with other evidence on record. Another surprising

feature of the case is that although PW7 has deposed before the Court that the

accused persons gave the cot, beddings and box but did not return the

ornaments and cash amount to them. PW7 happens to be the brother of PW1,

defacto complainant of the case. This version of PW7 is unnatural as on the one

hand he deposed that on 12th July, 1993 his sister was driven out from her

matrimonial home and at the same time he deposed that the accused persons

returned the cot, beddings and box.

SectionIn Rajesh Sharma Ors. vs. State of Uttar Pradesh Anr. reported in

2018 (10) SCC 472 in paragraph 14, it has been held as follows:-

“Section 498-A was inserted in the statute with the laudable
object of punishing cruelty at the hands of husband or his
relatives against a wife particularly when such cruelty had
potential to result in suicide or murder of a woman as mentioned
in the Statement of Objects and Reasons of Act 46 of 1983. The
expression “cruelty” in Section 498-A covers conduct which may
drive the women to commit suicide or cause grave injury (mental
and physical) or danger to life or harassment with a view to
coerce her to meet unlawful demand. It is a matter of serious
concern that large number of cases continue to be filed under
Section 498-A alleging harassment of married women. We have
already referred to some of the statistics from the Crime Records
Bureau. This Court had earlier noticed the fact that most of such
complaints are filed in the heat of the moment over trivial
issues.”

In this case although there are embellishments in respect of the torture so

inflicted upon the victim but there is a consistency regarding demand of dowry

and harassment and torture being inflicted upon the defacto complainant of the

case. In view of the proposition of law relating to “cruelty” as referred to in

Rajesh Sharma (supra), I do not find that there are materials for convicting the

petitioner No.2 and as such the judgment and order of conviction and sentence

so passed by the Ld. Trial Court and affirmed by the Ld. Appellate Court is

hereby set aside. The petitioner No.2 is acquitted of the charges and he is

discharged from the bail bonds.

In respect of accused / petitioner No.1, Moloy Banerjee, I uphold the

conviction so imposed by the Ld. Trial Court and affirmed by the Ld. Appellate

Court, however, relying upon SectionLaxman vs. State of U.P. reported in 2017 SCC

OnLine SC 614, I am of the considered view that the aims of justice would be

attained if the sentence is modified and reduced to the period already undergone

by him without interfering with the condition of fine.

As such CRR 1982 of 2010 is partly allowed.

Department is directed to communicate this order to both the Courts

below.

Urgent Xerox certified photocopies of this judgment, if applied for, be given

to the parties upon compliance of the requisite formalities.

(Tirthankar Ghosh, J.)

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