SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Prosenjit Biswas vs The State Of West Bengal on 15 January, 2019

1

IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction

PRESENT:

The Hon’ble Mr. Justice Rajarshi Bharadwaj

C.R.A. 16 of 2010

Prosenjit Biswas
Versus
The State of West Bengal

For the Appellant : Mr. Amarendra Nath Ray
Ms. Anita Khatri

For the State : Mr. Binay Kumar Panda
Mr. Subham Kanti Bhakat
Heard on :2nd July, 2018, 3rd July, 2018, 10th July, 2018 18th July,
2018, 6th September, 2018 and 13th September, 2018.

Judgement on: 15th January, 2019

Rajarshi Bharadwaj, J.:

This appeal arose out of a judgement and order dated 22nd
December, 2009 passed by the learned Additional Sessions Judge,
Fast Track Court no.3, Bongaon, North 24-Parganas in S.T. No.
02(02)/08/S.C. No. 01 (09)/07 arising out of Gaighata P.S. Case No.
247/05 dated 9th November, 2005 convicting the accused/appellant
Prosenjit Biswas under Section 306 of the Indian Penal Code and
sentencing him to suffer rigorous imprisonment for seven years and
to pay fine of Rs. 1,000/-; in default to suffer rigorous imprisonment
2

for three months and also sentencing him to suffer rigorous
imprisonment for two years for the offence under Section 498A of the
Indian Penal Code and both the sentences under Sections 306 and
498A of the Indian Penal Code were directed to run concurrently.

The prosecution case in brief is that one Nityananda Saha,
father of the victim lodged a written complaint alleging that his
youngest daughter Supriya Biswas was married in the month of
Agrahayan, 1409 B.S. with Prosenjit Biswas. At the time of marriage,
he gave Rs. 20,000/- cash, 5 bhari golden ornaments and furniture.
After some days of her marriage, the husband, mother-in-law, father-
in-law and two brothers of the husband of his daughter started to
inflict physical torture and mental cruelty upon his daughter by
demanding money from him. It was further alleged that he paid Rs.
22,000/- in instalments, but after some days he came to know that
there was illicit relationship between his son-in-law and Rina Singh.
For this reason, at the instance of Rina Singh, his son-in-law
Prosenjit Biswas, elder brother Pradip Biswas, another brother Sajal
Biswas, father Dhananjoy Biswas and mother Shanti Rani Biswas
used to inflict jointly mental and physical torture. In the last year on
the occasion of ‘Kali Puja’, his daughter came to his house along with
her son aged about ½ year and she told him that the members of her
in-law’s house had demanded Rs. 50,000/- for the purpose of
business. His daughter also stated that if the said money was not
paid, her husband would not allow her to live with him and he would
start his life with Rina Singh. His daughter also told him that they
threatened to kill her. He managed to send back his daughter
3

assuring her that he would pay that money within few days. It was
further alleged that on 9th November, 2005 in the morning, one
neighbour informed him that his daughter had expired. On hearing
the news, he rushed to the house of in-laws of his daughter and
found his daughter lying on a cot as dead. He also found black spot
and nails cut injury on the throat of his daughter. He also found one
broken sakha in two pieces, one chitkini with some broken wood and
other household articles in scattered condition. He did not find any
member of his daughter’s in-law’s house.

On the basis of the written complaint, a criminal case, being
Gaighata P.S. Case no. 247/2005 dated 9th November, 2005 was
initiated. Investigation was started and after completion of
investigation, charge sheet was submitted under Sections
498A/304B/34 of the Indian Penal Code against six accused persons,
who pleaded not guilty and claimed to be tried.

It appears from the record that the Trial Court held that the
accused Prosenjit Biswas was found guilty for committing offence
under Sections 306/498A of the Indian Penal Code and accordingly,
he was convicted under Section 235(2) of the Code of Criminal
Procedure. The other accused persons namely, Pradip Biswas,
Dhananjoy Biswas, Rina Singh, Shanti Rani Biswas and Sajal Biswas
were found not guilty and accordingly, they were acquitted under
Section 235(1) of the Code of Criminal Procedure. They were
discharged from their respective bail bonds.

Learned advocate for the appellant submitted that from the First
Information Report as well as the evidence on record it appears that
4

the instant case has been made out for non-fulfilment of demand of
dowry, the victim committed suicide, but in this case there was no
such allegation or evidence of abetment of suicide under Section 306
of the Indian Penal Code against the accused person. He further
submitted that the learned Trial Court had converted the offence
under Section 306 of the Indian Penal Code, but no opportunity was
given to the appellant as required under Section 216(2) of the Code of
Criminal Procedure. In support of his submission he has relied on a
decision of the Apex Court in the case of Harjit Singh -vs- State of
Punjab reported in AIR 2006 SC 680. Thus, the learned Trial Court
failed to consider that the ingredients under Section 304B and 306 of
the Indian Penal Code are quite different and distinct and as such in
absence of direct evidence alternative charge under Section 306 of the
Indian Penal Code did not arise at all. He further submitted that in
the instant case, there was strong direct evidence and other materials
on record that soon before death there was dying declaration of the
victim under Section 164 of the Code of Criminal Procedure and the
evidence of the father of the victim that soon before death due to
abetment the victim committed suicide, was not at all connected with
the demand of dowry. He also submitted that the evidence of P.W.1
and P.W.2 with regard to torture and severe assault on the victim
immediately prior to her suicide was completely unreliable and was
not supported by the medical evidence and in the post mortem report
there was no such remark of physical torture. The evidences of P.W.1
and P.W.2 were contradictory to each other. P.W.1 stated that he
was unable to recollect from his memory, whereas he deposed that he
5

had no knowledge about the fact of the incident. Similarly, P.W.2
gave her statement under Section 161 of the Code of Criminal
Procedure, but she had not stated that fact in her deposition. The
important facts, which had been stated in the deposition, were not in
the First Information Report. He has relied on the decision of the
Supreme Court reported in 2007 S.C. (C.L.J.) 353 to show that the
allegation made against the appellant is not based on evidence but
out of suspicion, which is not permissible under the law. There was
no single whisper in the evidences of P.W.1 and P.W.2 about physical
torture, one or two incident of torture or assault does not effect under
Section 498A of the Indian Penal Code. In this connection, reliance
was placed by the learned advocate for the appellant in the case of
Nilakantha Pati -vs- State of Orissa reported in 1995 CRI.L.J. 2472.
According to the appellant, as there is no evidence of dowry death,
the evidence of abetment to suicide could not be imposed upon the
appellant without following the procedure of 216(2) of the Code of
Criminal Procedure. 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 seven years of her marriage as evident from
the First Information Report. He submitted that evidence as to the
torture upon the victim by the appellant has been proved by the
prosecution witnesses. The specific evidence of P.W.2 is that the
6

accused person caused her death after torturing and assaulting her.
He also submitted that in view of the statutory presumption under
Section 113A of the Evidence Act, the conviction of the appellants
under Section 306 of the Indian Penal Code does not call for
interference. He has cited a decision of the Supreme Court in the
case of Dalbir Singh -vs- State of U.P. reported in 2004(5) SCC 334.
It was held in paragraphs 17 and 18 thereof that though the accused
was charged under Section 302, but the evidence shows that the
appellant has committed offence under Section 306 of the Indian
Penal Code and he should be convicted for the same. 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 nine
witnesses to prove the charge of cruelty.

P.W.1, Nityananda Saha, the father of the victim as well as the
complainant of this case stated that his daughter named Supriya
Biswas was married with Prosenjit Biswas in the month of
Aghrahayan, 1409. At the time of marriage, he paid Rs. 20,000/-
cash and presented several gold ornaments and articles as dowry.
Since after the marriage his daughter stayed in her in-law’s house,
she gave birth of a male child. He used to enquire about her and
came to learn that his daughter was not happy. On further demand
by the husband he paid Rs. 22,000/-, but thereafter, his daughter
came to his house and told that her husband had an illicit
7

relationship with one Rina Singh. His daughter also told that a sum
of Rs. 50,000/- was to be paid to the accused, otherwise her husband
would settle with Rina Singh and she would not be allowed to live
with him as wife. The accused persons used to demand further
dowry repeatedly and tortured his daughter to bring money and they
used to drive her from her matrimonial home. After hearing demand
of Rs. 50,000/- from his daughter, he asked her to return to her
matrimonial home assuring her for taking up the matter with the
accused persons. He told the accused persons that he being a poor
man could not fulfil their demand but assuring them to make part
payment towards further dowry. On 9th November, 2005 in the
morning he was informed that his daughter had expired.
Immediately, he rushed to the house of the accused Prosenjit and
found Supriya was lying in a cot as dead. He also saw that several
articles lying on the floor in broken condition. He also found nail
mark injury on her throat and her left hand was also in fractured
condition. None of the inmates of her in-law’s house was present
there. Thereafter, he lodged a written complaint at Gaighata Police
Station. One Lalan Kumar Saha wrote the written complaint and he
identified his handwriting and the complaint, which was marked as
Ext.1/1.

P.W.2, Jayasree Saha, sister of the victim stated that Supriya
was given marriage with Prosenjit Biswas. After the marriage she
went to her in-law’s house and out of wedlock, she gave birth of a
son. Sometime after marriage her sister was mentally tortured. At
the time of marriage, he father paid Rs. 20,000/- cash and presented
8

gold ornaments and articles as demanded, but the accused persons
were not happy. The accused persons compelled her sister to come to
her father’s house for bring further dowry. She further stated that
her father paid Rs. 22,000/-, but in spite of that, the mother-in-law
Shanti Rani Biswas, father-in-law Dhananjay Biswas, her husband
Prosenjit Biswas and two elder brothers of her husband namely,
Pradip Biswas and Sajal Biswas used to torture her sister on demand
of further dowry. Besides that, Prosenjit Biswas had developed illicit
relationship with Rina Singh, who used to visit her sister-in-law’s
house and stayed there very often. Prosenjit Biswas and Rina Singh
used to go outside and her sister objected to such illicit relationship.
Thereupon, all relatives of her sister-in-law’s family used to assault
and torture upon her. In the year 2005, before Kali Puja the accused
persons sent her sister after torturing and assaulting her to their
place. Her sister came weeping and disclosed to her father that the
accused persons demanded a sum of Rs. 50,000/- as further dowry
or business purpose and if the said sum of Rs. 50,000/- was not
paid, the accused persons would kill her and not to allow her to live
as husband and wife with Prosenjit Biswas and Prosenjit Biswas
would start living with Rina Singh. Her father being a poor man was
not in a position to pay the demanded sum of Rs. 50,000/- at that
time. Her sister had expired on 9th November, 2005. One neighbour
of her sister-in-law’s house informed the fact to them. Thereafter,
she went to the in-law’s house and found her sister lying as dead on
a cot. Several articles were lying in scattered condition in a room.
None of the inmates was found there.

9

P.W.3, Mrinmoy Roy, neighbour of the accused person was
declared hostile.

P.W.4, Gita Golder, neighbour of the accused person was
declared hostile.

P.W.5, Shyamali Samajder, whose father’s house was in the
village of Uttar Bakchara, was declared hostile.

P.W.6, Ananta Kumar Ghosh, Assistant Sub-Inspector of Police,
being the Investigating Officer stated that on 9th November, 2005 he
was posted at Gaighata Police Station and he received a complaint
from one Nityananda Saha. He started Gaighata P.S. Case no. 247
dated 9th November, 2005. The case was endorsed to Narayan
Ghosh, Sub-Inspector of Gaighata Police Station for investigation.

P.W.7, Dr. Sudhangshu Barman, Medical Officer deposed that
on the date of incident he held post mortem examination over the
dead body of one Supriya Biswas, wife of Prosenjit Biswas of village
Uttar Bakchara in connection with Gaighata P.S. U.D. Case no. 66 of
2005 dated 9th November, 2005. On examination he found that the
built of the body was average, rigor mortis plus, bruise marks were
seen in front of throat and in the stomach violate colour poison was
seen. The cause of death was due to cardio-respiratory failure in the
case of poisoning. However, his opinion was co-related with clinical
examination report.

P.W.8, Shyamal Chandra Mondal, Sub-Divisional Officer,
Chandannagar, Hooghly deposed that on 11th November, 2005 held
inquest over the dead body of Smt. Supriya Biswas. One Nityananda
Saha, who was the father of the deceased, identified the dead body.

10

On examination of the dead body, he found four black marks
(fingerprint) over the neck of the deceased. He also noticed that the
right wrist of the deceased was broken. He proved his report and
marked as Ext.6.

P.W.9, Narayan Ghosh, Investigating Officer of this case deposed
that on 9th November, 2005 he received the charge of investigation of
Gaighata P.S. Case no. 247 dated 9th November, 2005. During
investigation, he visited the place of occurrence, prepared a rough
sketch map along with index and held inquest over the dead body of
Supriya Biswas. He examined the available witnesses and recorded
their statements under Section 161 of the Code of Criminal
Procedure. He seized some articles at the place of occurrence under a
seizure list. He collected the post mortem report and the inquest
report of the Executive Magistrate. He sent the dead body to the
morgue for post mortem examination through a dead body challan.
He arrested Dhananjay Biswas, Rina Biswas and subsequently,
Shanti Rani Biswas. He made attempt to arrest other accused
persons, but in vain. He sent the visera of the deceased. Thereafter,
he submitted charge sheet against six accused persons showing
accused Sajal Biswas as absconder under Sections 498A/304B/306
of the Indian Penal Code.

On perusal of the evidence on record it appears that it was the
specific case of the prosecution that cruelty and harassment was
made by the accused person/appellant upon the victim Supriya, for
which Supriya had to commit suicide in her in-law’s house within
seven years from the date of her marriage. As discussed above, P.W.1
11

and P.W.2 stated that the victim complained of torture by the
appellant whenever she visited her house.

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.
From the evidence of P.W.1, the father of the victim it has come on
record that P.W.1 paid Rs. 20,000/- and Rs. 22,000/- in cash along
with ornaments and utensils as dowry at the time of marriage. P.W.1
had spoken of another Rs. 50,000/- which was demanded by the
appellant and he was unhappy because of delay in making the
12

payment. On the date of the incident when he was informed that his
daughter expired, he rushed to the house of his daughter and found
the victim lady was lying on a cot. He also found nail mark injuries
on her throat and her left hand in fractured condition. None of the
inmates of her in-law’s house were present there but only the local
people was there. Thereafter, P.W.1 lodged a complaint before the
concerned Police Station.

P.W.7, Dr. Sudhangshu Barman, Medical Officer also deposed
that bruise marks were seen in front of throat and in the stomach
violet coloured poison was also seen.

Accordingly, I am of the view that the evidence on record shows
that the housewife was subjected to torture over demand of dowry
which continued till she suffered unnatural death at her matrimonial
home and therefore, cruelty and harassment upon the victim in her
in-law’s house by the husband have been well proved by the
prosecution and accordingly, the accused person was convicted for
the offence punishable under Sections 498A/306 of the Indian Penal
Code. Hence, I uphold the conviction of the appellant under Sections
498A/306 of the Indian Penal Code and bail bond of the appellant is
cancelled and he is directed to surrender forthwith before the trial
court.

Coming to the issue of sentence of Prosenjit Biswas, I find that
the incident occurred on 22nd December, 2003 and the appellant is
on bail. Under the facts and circumstances of this case, sentence
imposed upon the appellant is modified to the extent that the
13

appellant is sentenced to suffer rigorous imprisonment for five years
instead of seven years for the offence punishable under Section 306
of the Indian Penal Code and to pay a fine of Rs. 1000/-; in default to
suffer further rigorous imprisonment for three months. He is also
sentenced to suffer rigorous imprisonment for two years for the
offence under Section 498A of the Indian Penal Code and both the
sentences under Sections 306 498A of the Indian Penal Code shall
run concurrently.

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.

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.)

Leave a Reply

Your email address will not be published. Required fields are marked *


Not found ...? HOW TO WIN 498a, DV, DIVORCE; Search in Above link

All Law documents and Judgment copies
Laws and Bare Acts of India
Landmark SC/HC Judgements
Rules and Regulations of India.

STUDY REPORTS

Copyright © 2021 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation