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Paritosh Barman & Ors vs State Of West Bengal on 16 December, 2019

Form No. J(1)

IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE

Present:

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

C.R.A. 504 of 2017
Paritosh Barman Ors.
-Vs-
State of West Bengal

For the appellant : Dr. Jyotirmoy Adhikary, Adv.

For the State : Mr. Arun Kumar Maity, Adv.
Ms. Trina Mitra, Adv.

Heard on : 16.12.2019

Judgment on : 16.12.2019

Joymalya Bagchi, J.:

Rimpa, the unfortunate housewife who had given up ties with her own

family to seek love with Paritosh, her husband (appellant no.1) met an

unfortunate end even before the first anniversary of marriage. The fact in a

nutshell is the substratum of the prosecution case. Rimpa and Paritosh were

students of Bidyabhawan High School. They fell in love and married each other

on 20.9.2010 against the wishes of parents of the victim housewife. About two

months later her parents P.W 1 and 2 accepted the marriage and it is alleged on

the demand of husband and in laws four bhories of gold ornaments, one cot,
almirah, dressing table, showcase, utensils and beddings etc. were given as per

demand of the appellants. One month later, Paritosh, husband of the housewife

demanded Rs. 50,000/- to start a business. Malay, father of the victim (P.W.1)

was unable to meet such demand immediately. As a result, the deceased was

physically assaulted by Paritosh at the instigation of other in laws who did not

provide adequate food to her. Victim housewife went her parental home and

narrated about the torture to her parents and others. On the fateful day i.e.

18.9.2010

, younger sister of the victim housewife and her cousin Jhutan Dey

went to her matrimonial home. Upon returning, Jhutan informed P.W 1 that

Rimpa was unhappy at the matrimonial home. Around 10 p.m. Jogesh Barman,

father in law of the victim housewife informed P.W.1 that victim was unwell. As

they were preparing to go to her matrimonial home, P.W.1 received another

phone call and was informed she had been admitted at MJN hospital. He rushed

to the hospital and found the victim lying in a senseless condition and frothing

from her mouth. Attending doctor declared her dead. None of the appellants were

present at the hospital. On the written complaint P.W.1, Kotwali Police Station

Case No. 732 of 2010 dated 20.9.2010 was registered under Sections 498A/Section306

of the Indian Penal Code. In conclusion of investigation, charge-sheet was filed

and charges were framed under Sections 498A/Section304B IPC against the appellants.

Appellants pleaded not guilty and claimed to be tried. It was the specific defence

of the appellants that the victim had fallen ill and had suffered a natural death.

In the course of trial, prosecution examined 13 witnesses and exhibited a

number of documents. On an analysis of the evidence on record, the trial Judge
by the impugned judgement and order dated 19th/20th July, 2017 convicted the

appellants for commission of offence punishable under Sections 498A/Section304B of

the Indian Penal Code and sentenced them to suffer rigorous imprisonment for

three years and to pay fine of Rs.5,000/- each, in default, to suffer rigorous

imprisonment for three months each for the offence punishable under Section

498A IPC, to suffer rigorous imprisonment for ten years and to pay fine of

Rs.10,000/- each, in default, to suffer rigorous imprisonment for six months

more for the offence punishable under Section 304B IPC, both the sentences

shall run concurrently. Hence, the present appeal.

Dr. Adhikari, learned advocate appearing for the appellants argued that the

evidence on record with regard to cruelty on demand of dowry is most sketchy

and does not satisfy the ingredients of the alleged offences. It is submitted the

best evidence was withheld as cousin Jhutan Dey and younger sister of the

deceased were not examined and the circumstance prevailing on the day which

led to the unfortunate end of the victim remained undisclosed. Medical records of

her treatment at MJN hospital have also not been produced. In the absence of

chemical examiner’s report, opinion of the doctor that the victim died due to

poisoning is inconclusive. Hence, the appellants are entitled to an order of

acquittal.

Mr. Maiti along with Ms. Mitra appearing on behalf of the State argued that

the evidence on record particularly that the parents of the victim housewife

(P.W.s 1 and 2) show that her short matrimonial life was punctuated with

repeated demands of dowry. Lastly, Rs. 50,000-/- was demanded by the husband
for starting a business and as such amount was not paid, she was subjected to

cruelty which resulted in her unnatural death. Materials on record particularly

that evidence of post mortem doctor (P.W.6) clearly rules out a case of natural

death of the deceased. Prosecution case has been fully established and the order

of conviction and sentence calls for no interference.

P.W 1 and 2 are the parents of the deceased.

P.W 1, Malay Dey deposed Rimpa married Paritosh out of a love affair.

Marriage was solemnized at the house of Paritosh as per Hindu rites and

customs. After marriage, Jogesh Barman, father in law of Rimpa, called him to

his residence. He demanded four bhories of gold ornaments and other articles as

dowry. P.W.1 gifted the articles within a month and his daughter continued her

conjugal life. After two months of delivery of the articles, his son-in-law raised a

demand of Rs. 50,000/- to start a business. As he was unable to pay, his son-in-

law assaulted his daughter. Sometimes she was not given food. On 18.9.2010 his

younger daughter and nephew went to the house of Rimpa. His nephew told him

that there was trouble at her matrimonial home. Later in the night Jogesh

Barman, father-in-law of the victim, informed him that his daughter was in

serious condition. Subsequently, he was informed that she had been admitted to

Cooch Behar MJN hospital. Reaching hospital he found her daughter lying in an

unconscious condition and froth was oozing from her mouth. Within ten minutes

she was declared dead. He lodged complaint at the police station scribed by P.W

7, Bikash Pal.

P.W 2, Molina Dey deposed Rimpa married Paritosh out of a love affair.

One day from her private tuition class she went to the residence of Paritosh and

the marriage was solemnized. The accused persons exerted pressure on Rimpa to

bring dowry. Her daughter informed that her son in law created pressure on her

to bring Rs. 50,000/- so that he could start a business. Upon demand, they gave

gold ornaments and other articles as dowry but could not pay Rs. 50,000/-. As a

result her daughter died within 8/9 months from the marriage. On the day of the

incident her younger daughter along with nephew of her husband visited the

matrimonial home of her daughter on the occasion of Viswakarma puja. Upon

return, her nephew stated that her daughter was not happy. In the night around

10 p.m., father-in-law of her daughter informed them she was unwell and

requested them to come immediately. Subsequently they were informed that their

daughter was admitted at MJN hospital. On reaching the hospital they found

their daughter in senseless condition and froth was oozing from her mouth.

Subsequently, she was declared to be dead. In cross examination, she stated gold

ornaments, wooden cot and other furniture were given to her son in law after one

month of marriage.

P.W 3 has corroborated the evidence of P.W 1 and 2. He claimed that he

heard about the torture on the housewife from his maternal uncle, P.W 1.

P.W 4 deposed the parents of Rimpa did not attend the marriage. After

marriage Rimpa came to her parents house and stated that her in laws were

demanding dowry. Thereafter he went with PW 1, his uncle for a talk with her in

laws. His uncle P.W 1 gave dowry. Thereafter, Rimpa was leading her conjugal life
smoothly. After a lapse of two months, Rs. 50,000/- was demanded to enable

Paritosh to commence his business. P.W 1 failed to pay the money. As a result,

Rimpa was tortured. He went with P.W 1 to the hospital. He signed on the

inquest report. He also signed on the inquest report prepared by the magistrate.

P.W 7 is the scribe of the FIR. P.W.s 8, 9 and 10 are the neighbours of the

appellants. P.W 9 was declared hostile and was extensively cross-examined with

regard to his previous statement to police. All these witnesses admitted that the

victim housewife was residing at the matrimonial home when she died.

P.W 6 is the post-mortem doctor. He found no external injury on the dead

body of the victim. On dissection he found the stomach with congested turbid

fluid. In his opinion, death was due to poisoning which was ante mortem in

nature. He however, kept his final opinion reserved till receipt of chemical

analysis report of the viscera. In cross examination, he admitted that chemical

analysis of viscera had not been placed before him.

P.W.s 11 and 12 are the investigating officers of the case.

Analysis of the aforesaid evidence would show that the victim girl had

developed a love affair with Paritosh who was her co-student in the school. As her

parents did not approve the relationship she eloped to the residence of Paritosh

and marriage was solemnized between them. Parents of the victim P.W 1 and 2

did not attend the marriage. One month later Jogesh Barman, father-in-law of

the victim girl, telephoned P.W 1 to come to his residence. In the course of

negotiation it is claimed four bhories of gold ornaments and other articles were

demanded as dowry. P.W. 1 handed over the gold ornaments and other articles to
his daughter and husband and their conjugal life continued peacefully for

sometime. Although some evidence has come on record from the mouths of P.W 2

and 4 that Rimpa was harassed by the appellants for non-fulfilment of the dowry

so demanded, there is no whisper to that effect in the deposition of her father,

P.W 1. On the other hand, the factual conspectus of the case gives an impression

initially P.W 1 and 2 were unwilling to accept the marriage but ultimately

accepted one month after it was solemnized. Thereupon, P.W. 1 gifted the gold

ornaments and other articles to his daughter and son-in-law.

In this backdrop it is difficult for me to accept that the victim housewife

during the first month of her marriage was subjected to cruelty for demand of

dowry. On the other hand, it appears to be likely that upon reconciliation and

acceptance of the love marriage of his daughter, P.W. 1 voluntarily gifted gold

ornaments and other gifts to her and his son-in-law. Hence, I find it difficult to

accept the prosecution case that the in-laws including the father-in-law had

subjected the victim housewife to cruelty and thereby compelled P.W. 1 to give

the dowry items, that is, gold ornaments and other articles to his daughter.

However, a completely different picture arises with regard to subsequent

demand of Rs. 50,000/- made by appellant no. 1 two months later to start his

business. As the amount was not paid, the appellant no. 1 physically assaulted

the victim housewife. Finally, on 18.09.2010 she died under mysterious

circumstances.

It has been argued in the absence of chemical analysis report the cause of

death has not been proved beyond doubt. I am unable to accept such contention.

Firstly, post-mortem doctor, P.W. 6, in the course of post-mortem

examination found turbid fluid in the stomach of the victim. Noting the signs and

symptoms in the post-mortem report, he opined that the victim had died due to

ante-mortem poisoning. Chemical analysis report of the viscera definitely would

have fortified such opinion but in the absence of the report I am unwilling to

discard the considered medical opinion of P.W. 6 with regard to the cause of

death. Nothing has been placed on record on behalf of the appellants as to the

nature of ailments suffered by the victim resulting in hospitalization and death.

Non-production of hospital records in the facts of the case is also inconsequential

as the victim died immediately upon being brought to the hospital.

On the other hand, consistent evidence of all the witnesses who saw the

victim at the hospital was to the effect that she was in senseless condition and

frothing from her mouth, a telltale sign of poisoning.

To prove a charge under Sectionsection 304B of the Indian Penal Code it is not

necessary for the prosecution to establish that the victim has suffered “homicidal

death”. It is sufficient to show that the victim had suffered unnatural death and

not a natural one.

Aforesaid facts leave no doubt in my mind that death of the victim was

unnatural and not due to natural causes.

It is also argued that the best evidence, that is, of Jhutan Dey, cousin of

the victim housewife, and her younger sister, who had visited her matrimonial

home on the fateful date, have been withheld. Although, evidence of the aforesaid

persons would have further assisted the unfolding of the prosecution case, in
light of the consistent evidence with regard to demand of Rs. 50,000/- by

appellant no. 1 for starting a business and the physical assault upon the victim

perpetrated by the said appellant on non-fulfilment of such demand as narrated

by the victim herself when she visited her parental home, I am convinced that the

live link between the persistent cruelty meted out upon the victim by her

husband in connection with the aforesaid demand and her unnatural death has

been fully established.

Under such circumstances, it was incumbent on the appellant no. 1 to

rebut the statutory presumption under Sectionsection 113B of the Evidence Act. which

he has singularly failed to do. Bald statement in the course of examination under

Sectionsection 311 Cr.P.C. that his wife did not die due to poisoning is not sufficient. He

was present at the matrimonial home when the victim suffered unnatural death.

It was his bounden duty to explain the circumstances leading to such unnatural

death and rebut the aforesaid presumption.

Accordingly, I am of the opinion that prosecution case against appellant

no. 1 has been proved beyond doubt.

In the light of the aforesaid discussion, I am of the view that the evidence

against the in-laws of the victim housewife, that is, appellant nos. 2 to 4 with

regard to their role in making demand of Rs. 50,000/- and the cruelty upon the

housewife on such score is not convincing and as such the prosecution case has

not been established against them beyond doubt. Accordingly, I am inclined to

accept the benefit of the doubt to the said appellants.

Accordingly, I set aside the conviction and sentence imposed on the

appellant nos. 2 to 4.

Appellant nos. 2 to 4 shall be released forthwith from custody upon

execution of a bond to the satisfaction of the trial court which shall continue for

six months in terms of Section 437A of the Code of Criminal Procedure, if not

wanted in any other cases.

However, conviction imposed upon the appellant no. 1 is upheld.

Coming to the sentence imposed on appellant no. 1, I note that appellant

no. 1 was a young man aged around 21 years at the time of occurrence.

Balancing the aggravating and mitigating factors, I reduce the sentence imposed

on appellant no. 1 and direct that the appellant no. 1 shall suffer rigorous

imprisonment for seven years and pay a fine of Rs. 5,000/-, in default, to suffer

rigorous imprisonment for six months more for the offence punishable under

Sectionsection 304B IPC. Sentence imposed upon him for committing of offence

punishable under Sectionsection 498A IPC is upheld. Both the sentences to run

concurrently.

The period of detention suffered by appellant no. 1 during investigation,

enquiry and trial shall be set off from the substantive sentence imposed upon the

appellant no. 1 in terms of Section 428 of the Code of Criminal Procedure.

Appeal is partly allowed.

Let a copy of this judgment along with the lower court records be

forthwith sent down to the trial court at once.

Photostat certified copy of this judgment, if applied for, shall be made

available to the appellants within a week from the date of putting in the

requisites.

I agree.

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

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