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.)
