IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
THE HON’BLE JUSTICE TIRTHANKAR GHOSH
CRR 1982 of 2010
Moloy Banerjee Anr.
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;
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
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
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
Urgent Xerox certified photocopies of this judgment, if applied for, be given
to the parties upon compliance of the requisite formalities.
(Tirthankar Ghosh, J.)