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Rabindra Nath Mondal & Ors vs The State Of West Bengal on 11 October, 2018

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IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction

PRESENT:

The Hon’ble Mr. Justice Rajarshi Bharadwaj

C.R.A. 10 of 1997

Rabindra Nath Mondal Ors.

Versus
The State of West Bengal

For the Appellants : Mr. Himangshu De, Sr. Adv.

Mr. Bhakti Prasad Das
Mr. Navanil De
Mr. Rajeshwar Chakraborty

For the State : Mr. Saswata Gopal Mukherjee, P.P.

Ms. Faria Hossain
Heard on :9th July, 2018, 11th July, 2018, 19th July, 2018 18th
September, 2018

Judgement on: 11th October, 2018

Rajarshi Bharadwaj, J.:

The instant appeal has been preferred by the appellants
assailing the judgement and order dated 16th December, 1996 passed
by the learned Additional Sessions Judge, Tamluk in S.T. Case no.
1(9) 95, convicting the accused/appellants under Sections 498A/306
of the Indian Penal Code and sentencing Rabindra Nath Mondal and
Birendra Nath Mondal, being the accused/appellant nos. 1 and 2
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respectively to suffer rigorous imprisonment for one year for the
offence punishable under Section 498A of the Indian Penal Code and
also to suffer rigorous imprisonment for two years for the offence
punishable under Section 306 of the Indian Penal Code and further
sentencing Smt. Arati Bala Mondal, the accused/appellant no. 3 to
suffer rigorous imprisonment for one year for the offence under
Section 498A of the Indian Penal Code and to suffer further rigorous
imprisonment for one year for the offence punishable under Section
306 of the Indian Penal Code and all the sentences were directed to
run concurrently.

The prosecution case as narrated in the First Information Report
lodged on 6th July, 1988 by Kamal Kumar Manna, the brother of an
ill-fated bride before the Officer-in-Charge of Chandipur Police
Station, is that in the year 1393 B.S. the victim Rekha Rani was
married with the accused Rabindra Nath Mondal as per Hindu rites
and customs and in the said marriage dowry was given to the
bridegroom to the satisfaction of demand, but after few days of
marriage, both mental and physical torture was started upon Rekha
Rani by her husband and his inmates and finally she was driven out
from her in-law’s house. The victim lady had no other alternative but
to go to her father. Thereafter, her father went to Uttarbarabari, the
village of the accused persons with some respectable persons and in
presence of the villagers of Uttarbarabari, the dispute was settled in
two or three occasions and thereafter, Rekha was sent back to the
house of the accused persons. But unfortunately all those honest
efforts on the part of the father of Rekha yielded no fruitful result and
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as such torture upon Rekha in the house of the accused continued as
before demanding more dowry from her father’s house. Lastly, Rekha
being unable to tolerate the constant torture by her husband,
husband’s brother and wife of the husband’s brother, committed
suicide on the ill-fated night, i.e. 5th July, 1988. On the next day
morning, i.e. 6th July, 1988, Saktipada Bera and Buddhadeb Mondal
came from Uttarbarabari and informed the complainant about the
tragic incident of suicide and end of life of Rekha. Being informed,
the complainant with some villagers and panchayat members went to
the house of the accused persons and they came to know from the
neighbours of the accused persons that severe torture and assault
were made upon Rekha on the eventful day and also on the previous
day and for that reason Rekha Rani died.

On the basis of the written complaint, a criminal case, being
Chandipur P.S. Case no. 1 dated 6th July, 1988 was initiated. The
post mortem of the dead body of Rekha was held at Tamluk S.D.
Hospital, wherein the doctor opined that the death was due to
hanging and was suicidal in nature. Investigation was started and
after completion of investigation, charge sheet was submitted under
Sections 498A/306 of the Indian Penal Code against the accused
persons, who pleaded not guilty and claimed to be tried.

Learned advocate for the appellants submitted that the First
Information Report was written at local political party office, which
was written as per instruction of the said political party. He pointed
out that Kamal Kumar Manna, elder brother of the deceased, who
lodged the complaint, was not examined by the police, but he
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deposed in Court. The most vital witness being P.W.9, Buddhadev
Mondal, who was the uncle’s son of the appellant no.1/husband, had
been living in the adjacent room, was not examined by the police, but
he deposed in Court. He further submitted that there were vital
contradictions and omissions in the version of the witnesses. The
father of the victim, Arjun Manna, P.W.2 was examined by the police
after one week from the date of the death of the victim and he
deposed that his daughter was very sentimental and very fond of him.
P.W.2 further stated that his elder brother/appellant no.2 told him
that his daughter was eunuch, but he did not tell before the
Investigating Officer that the victim was eunuch. Similarly P.W.3 and
P.W.4, who were the vital witnesses as well as the uncle-in-law and
aunt-in-law of the victim, were contradicting with their earlier
statement before the Investigating Officer. Similarly, P.W.10 to
P.W.18 were vitally contradicting with their earlier statements before
the Investigating Officer, P.W.21. He further submitted that the
mother of the victim, Renuka Manna, P.W.13 did not state before the
Investigating Officer that two months before the death of the victim
and also whenever the victim went to their house she told her about
the torture made by the accused Rabin and Arati upon her.
Therefore, the prosecution has measurably failed to prove the case
beyond reasonable doubt.

In support of his submission, learned advocate for the
appellants relied upon the decision of the Hon’ble Supreme Court in
the case of Tarun @ Gautam Mukherjee -vs- State of West Bengal
reported in 2003 SCC (Cri) 1052 and he also relied on the decision of
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the Hon’ble Supreme Court in the case of B. Virupakshaiah -vs- State
of Karnataka Ors. reported in (2016) 4 SCC 595. Lastly, he relied
on a decision of the Hon’ble Supreme Court in the case of Sanju @
Sanjay Singh Sengar -vs- State of M.P. reported in 2002 SCC (Cri)
1141.

Thus, he 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 appellants has been proved by the
prosecution witnesses. P.W.17, neighbour of Uttarbarabari
specifically stated that on the date of occurrence in the morning he
went to the house of the accused persons hearing shouting and found
the accused Rabin assaulting his wife. In cross-examination P.W. 17
stated that he informed all the facts of assaults to the Investigating
Officer. He submitted that evidence regarding torture upon the victim
by the appellants has been proved by P.W.3, P.W.4, P.W.9, P.W.10,
P.W.13, P.W.17. 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. Thus, he prayed for dismissal of the appeal.

Heard learned advocates for the parties and perused the
impugned judgement.

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In the instant case the prosecution examined as many as 21
witnesses to prove the charges of cruelty and abetment.

P.W.1, Kamal Kumar Manna, elder brother of the victim as well
as he de facto complainant of this case stated in his deposition that
his sister Rekha Rani was married with the accused Rabin Mondal of
the village Uttarbarabari, Chandipur in the year 1392 B.S. accordig
to Hindu rites and there were talks about payment of dowry and a
sum of Rs. 6,000/- and gold ornaments and articles were given as
dowry in that marriage. After marriage the accused Rabin Mondal
assaulted the victim and drove her out of his house. He stated in his
evidence that Subhas Jana, Arjun Manna, Panchanan Thander and
others went to the village of the accused persons to settle the dispute.
Thereafter, his father and some villagers settled the dispute and
Rekha continued to live with her husband. On 6th July, 1988 two
villagers Saktipada Bera and Buddhadev Mondal came to his house
and informed him that the victim died by hanging. He came to
Chandipur Police Station and saw that the dead body of the victim
was kept in a bag and the mouth of the bag was tied. He learnt from
some villagers that the victim was tortured and put her to death.
Thereafter, he lodged written complaint in Chandipur Police Station
and Subhas Chandra Jana, P.W.11 wrote the written complaint as
per his instruction.

P.W.2, Arjun Manna, father of the victim stated in his deposition
that his daughter was married with the accused Rabin Mondal on
20th Falgoon, 1392 B.S. and after one year of marriage the dispute
arose. The elder brother of the accused Rabin named Biren Mondal
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told him that the victim Rekha was eunuch. The doctor examined the
victim and opined that she was potent. After examination he along
with Subhas Jana, Panchananthandr and Dhiren Maity went to the
house of Prabir Mondal and a settlement was made there and
thereafter, the accused Rabin and Prabir Mondal took the victim to
the house of the accused persons. After that he heard that the victim
died. He further stated that the accused Biren Mondal demanded a
loan of Rs. 4,000/- from him to establish a shop. He was examined
by the Investigating Officer after the death of the victim and he
supplied photo copies of two letters of Biren and Rabin to the police.
He identified the accused Biren and Rabin, who were present in
Court. He further deposed that the accused Rabin is of bad character
and Rs. 6,000/- along with gold ornaments and utensils was given to
the victim’s husband as dowry.

P.W.3, Gobardhan Mondal, neighbour of the accused persons
stated in his evidence that the victim Rekha Rani died 6/7 years ago.
The accused Rabin used to assault the victim being instigated by
other two accused namely, Biren and Arati complaining that the
victim could not cook and as such they would not be able to eat.
Being instigated the accused Rabin assaulted the victim mercilessly.
Thereafter, he went to the market and after coming back he got the
information that the victim committed suicide by hanging. He
wanted to see the dead body of the victim but the accused Rabin did
not allow him to see the dead body. He stated that before the alleged
incident he saw the accused Rabin to assault the victim twice or
thrice.

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P.W.4, Smt. Chidan Bala Mondal, relative of the accused
persons corroborated the evidence of P.W.3.

P.W.5, Bijay Krishna Mondal was declared hostile by the
prosecution.

P.W.6, Samit Pradhan, neighbour of the accused persons stated
in his deposition that the accused Rabin had quarrelled with his wife
Rekha and Rekha died about 7/8 years ago. On the date of incident
when he was going to the Hat, he heard that the wife of the accused
Rabin died. On the next day he saw the dead body of the victim and
found a mark of injury on the left cheek of the victim.

P.W.7, Dhirendra Nath Maity, co-villager of Arjun Manna, the
father of the victim stated in his evidence that the victim told him
when she went to her father’s house that the wife of the elder brother
of the accused Rabin used to torture her.

P.W.8, Netai Pramanik, neighbour of the accused persons stated
in his evidence that he knew the victim and the accused persons and
one year before her death she was married with the accused Rabin.
After death of the victim he went to the house of the accused but he
did not see the dead body of the victim.

P.W.9, Bhudeb Mondal, neighbour of the accused persons
deposed that Rekha died about seven years ago. The accused Rabin
used to assault the victim Rekha and the accused Arati used to abuse
her.

P.W.10, Pankaj Kumar Nayek, teacher of a primary school in
village Uttarbarabari stated that the victim committed suicide by
hanging 7/8 years ago. Due to financial reasons the accused persons
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used to misbehave with Rekha. He further stated that the father of
the victim informed him about the dispute regarding dowry and he
asked the accused Biren for settlement of the dispute. Accordingly,
the matter was compromised but again the dispute cropped up
regarding dowry and the victim committed suicide. The victim was
not well treated by the accused.

P.W.11, Subhas Jana, who corroborated the evidence of P.W.2
that he along with the victim’s father and Prabir Mondal and two
others were present in the ‘Salish’ held at Uttarbarabari village for
settlement of dispute by saying that the accused Rabin and Biren
demanded some money from Arjun Manna. He wrote the written
complaint as per instruction of P.W.1, Kamal Manna.

P.W.12, Panchanan Thunder stated in his examination in chief
that the accused Rabin did not behave well with the victim Rekha.

P.W.13, Smt. Renuka Manna, the mother of the victim stated in
her evidence that her daughter Rekha was married with the accused
Rabin about 10 years back and Rekha died about 7 years back. The
accused Rabin and his boudi Smt. Arati Mondal used to torture the
victim. Rekha told her that the accused Rabin did not love her and
used to assault her. She further stated that the accused Rabin had
mixing with his elder brother’s wife Smt. Arati Mondal. In cross-
examination P.W. 13 stated that after marriage Rekha visited her
house 4/5 times and in one occasion she kept the victim Rekha for a
period of 5/7 months as she was assaulted mercilessly in her
matrimonial home.

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P.W.14, Smt. Nehar Bala Mondal stated that before death of the
victim, Rekha told her that the accused Rabin used to live with her
brother’s wife.

P.W.15, Biroj Mohon Ber, who was the police officer, held
inquest of the dead body of Rekha and proved the inquest report,
which showed that there had been no injury mark on the dead body
excepting one rope mark on her neck. He stated that it was a
suicidal case by hanging.

P.W.16, Bhudeb Mondal, neighbour of the accused persons
stated that he knew the victim, who died about 7/8 years ago. He
went to inform the accused Biren who was in market.

P.W.17, Subal Jana, neighbour of the accused persons stated in
his evidence that on the date of occurrence in the morning he went to
the house of the accused persons hearing shouting and found the
accused Rabin assaulting his wife.

P.W.18, Bidyut Guchhait, a schoolteacher of Khodambari High
School stated that he did not know the accused persons. He was
examined by the Investigating Officer in connection with this case.

P.W.19, Tapas Roy, Police Constable stated in his evidence that
he accompanied with Biraj Mohan Barman to conduct inquest over
the dead body of the victim.

P.W.20, Achintya Kumar Das Adhikari, Medical Officer stated
that on 7th July, 1988 he was attached to Tamluk Sub-Divisional
Hospital and on that day he examined the dead body of one Rekha
Rani Mondal in connection with Chandipur P.S. U.D. case no. 17
dated 6th July, 1988 and held the post mortem report.

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P.W.21, Surjya Kanta Roy, Investigating Officer of this case
stated that he took the charge of investigation, prepared the sketch
map of the place of occurrence and recorded the statements of
Bhudeb Prasad Mondal, Gopal Chandra Maity, Gobardhan Mondal,
Smt. Chikanbala Mondal, Smt. Anjana Mondal, Subal Chandra Jana,
Netai Charan Pramanick, Bijay Kumar Mondl, Paresh Giri, Sushil
Pradhan and Dhirendra Nath Maity. He submitted the charge sheet
against Rabindra Nath Mondal, Birendra Nath Mondal and Smt. Arati
Mondal under Sections 498A/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 persons upon the victim Rekha, for which
Rekha had to commit suicide in her in-law’s house within seven years
from the date 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 husand.

Explanation – For the purposes of this section, “cruelty” shall
have the same meaning as in Section 498A of the Indian Penal Code.”

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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
and other in-laws. The cause of torture of the victim was for
demanding dowry though there was no whisper of any claim of dowry
in the First Information Report. In the instant case, cruelty and
harassment upon the victim in her in-law’s house have been well
proved by the prosecution and accordingly, the accused persons were
convicted for the offences punishable under Sections 498A/306 of the
Indian Penal Code. Reliance has been placed by the learned advocate
for the appellants in the case of Tarun @ Gautam Mukherjee -vs-
State of West Bengal (supra). As per the above judgement, the
statement under Section 161 of the Code of Criminal Procedure and
deposition of the witnesses before the Court are differed, but in the
instant case there was no contradiction. Reliance has also been
made in the case of B. Virupakshaiah -vs- State of Karnataka Ors.
(supra), wherein there were vital contradictions and omissions in the
version of the witnesses, but in the instant case it cannot be said that
there is any major contradiction or omission. Lastly, reliance has
been placed on behalf of the appellants in the case of Sanju @ Sanjay
Singh Sengar -vs- State of M.P. (supra). According to the above
judgement, there was no instigation, but in this case there was
serious physical torture and mental cruelty upon the victim by her
husband and his inmates. Therefore, the decisions cited above are
not applicable in the instant case. Hence, I uphold the conviction
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and sentence of the appellants under Sections 498A/306 of the
Indian Penal Code and bail bonds of the appellants are cancelled and
they are directed to surrender forthwith before the trial court.

Period of detention suffered by the appellants 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.)

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