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Surendra Debnath & Ors vs State Of West Bengal on 27 July, 2018

IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction

BEFORE:

The Hon’ble Mr. Justice Rajarshi Bharadwaj

C.R.A. 23 of 2013

Surendra Debnath Ors.

Vs.

State of West Bengal

For the Appellants : Ms. Mousumi Bhowal, Adv.

For the State : Ms. Faria Hossain, Adv.
Mr. Danish Haque, Adv.

Heard On : 10th May, 2018.

Judgement On : 27th July, 2018.

Rajarshi Bharadwaj, J.:

The Appeal is directed against the judgment and order dated
23rd April, 2012 passed by learned Additional District Sessions
Judge, Fast Track 3rd Court, Alipurduar, Jalpaiguri in connection
with Sessions Case No. 263 of 2008 and Sessions Trial No. 66 of
2008 convicting the appellants for commission of offence punishable
under sections 498A and 306 of the Indian Penal Code. The
appellant nos. 1 and 2, namely Surendra Debnath and Promoda
Debnath were awarded a sentence to suffer rigorous imprisonment
for one and half (1 ½ ) years each and to pay fine of Rs. 2,000/-
(Rupees two thousand) only by each of them, in default they have to
suffer rigorous imprisonment for six (6) months more for the
commission of offence punishable under section 498A of the Indian
Penal Code and appellant no. 3 namely Krishna Debnath was
awarded a sentence to suffer rigorous imprisonment for three (3)
years and to pay fine of Rs. 2,000/-, in default of making payment of
fine he has to suffer rigorous imprisonment for six (6) months more
for the commission of offence punishable under section 498A of the
Indian Penal Code. Considering the old age of the convicts, Surendra
Debnath and Promoda Debnath have to suffer rigorous imprisonment
of four (4) years each and to pay fine of Rs. 2,000/- (Rupees two
thousand) only each of them, in default they have to suffer rigorous
imprisonment for six (6) months more for the offence punishable
under section 306 of the Indian Penal Code and the appellant no. 3,
named Krishna Debnath has to suffer rigorous imprisonment for
seven (7) years and to pay fine of Rs. 5,000/- (Rupees five thousand)
only, in default of making payment he has to suffer rigorous
imprisonment for one (1) year more for the offence punishable under
section 306 of the Indian Penal Code. Both the sentences for two
separate offences shall run concurrently.

At the very outset, it is informed that the appellant nos. 1 2
have expired. Appeal stands abated so far as the above two
appellants are concerned.

The prosecution case in brief as alleged against the appellant
no. 3 (hereinafter referred to as the appellant) on the basis of a
written complaint lodged by one Harendra Debnath before the Officer-
in-Charge, Samuktala Police Station, Jalpaiguri on 22nd July, 2004 is
that the father of the victim gave marriage of his daughter namely
Rita Debnath with one Krishna Debnath, the appellant herein two
years back. Within few days of marriage, the husband of Rita and
her in laws used to inflict torture upon his daughter both physically
and mentally in her matrimonial home. He came to learn about the
said torture when Rita used to visit his home. It was further alleged
that one ‘salish’ was held with the intervention of the villagers for
causing torture upon his daughter by her husband but he asked his
daughter to keep patience and to lead conjugal life. On 7th June,
2004 around 6 P.M. in the evening her daughter was compelled to
commit suicide by consuming poison owing to severe torture caused
by the appellant.

On the basis of the written complaint lodged by Harendra
Debnath, father of the victim, a criminal case, being Samuktala P.S.
Case No. 45/04, dated 22nd July 2004 under section 498A and 306 of
the Indian Penal Code was registered and after completion of the
investigation, the charge sheet was submitted against the appellant.
Charges were framed under Sections 498A and 306 of the Indian
Penal Code. The case was committed to the Court of Sessions Judge
and transferred to the Additional Sessions Court, Fast Track 3rd
Court, Alipurduar for trial and disposal. The appellant pleaded not
guilty and claimed to be tried. In the course of trial, prosecution
examined as many as 19 witnesses and exhibited a number of
documents. The defence of the appellant was one of innocence and
false implication. In conclusion of trial, the trial Judge by the
impugned judgment and order dated 23rd April, 2012 convicted and
sentenced the appellant, as aforesaid.

Ms. Mousumi Bhowal, learned Counsel for the appellant argued
that the evidence of prosecution witnesses does not establish cruelty
on the victim/housewife. Furthermore, the accused Krishna Debnath
was not present at the place of occurrence and there is no direct
evidence that the appellant had ever assaulted the victim forcing her
to commit suicide. She accordingly prayed for acquittal of the
appellant.

On the other hand, Ms. Faria Hossain, learned advocate
appearing on behalf of the state argued that the evidence on record
clearly established that the victim housewife committed suicide
within two years of her marriage at her matrimonial home. The
appellant was unable to give any plausible explanation leading to her
untimely death. It was also submitted that there is ample evidence
on record that the victim was subjected to torture including physical
assault at her matrimonial home forcing her to commit suicide clearly
establishing the ingredients of the offences punishable under sections
498A and 306 of the Indian Penal Code. Accordingly, she prayed for
dismissal of appeal.

I have heard learned advocates for the parties and considered
the rival contentions in the light of evidences on record.

P.W. 1, Harendra Debnath, father of the victim, Rita Debnath
during examination stated that he is the de facto complainant of this
case and Rita was his daughter. He gave marriage of his daughter
with one Krishna Debnath of Village Uttar Mahakalguri, Police
Station – Samuktala about 6 years ago in accordance with Hindu
Rites and Ceremonies. At the time of marriage, he gave gold
ornaments, other articles and cash of Rs. 5000/- to the accused as
dowry. After marriage his daughter went to her matrimonial house
and started residing there with her husband, father-in-law and
mother-in-law. He further stated that his daughter told him that
Krishna Debnath was demanding a bicycle and as he could not
arrange money, Krishna Debnath along with his father and mother
had started torture upon his daughter. His daughter Rita Debnath
came to his house and told that she was not allowed to take food.
When she took her lunch, her husband used to throw the food plate
and kept her hungry. She also told him that her husband, mother in
law and sister in law assaulted her physically. He asked his daughter
to compromise with the accused persons and again took her to her
matrimonial home. In the middle of year, 2004 his daughter
committed suicide by taking poison as the degree of torture became
unbearable to her. During life time of her daughter there was a
Salish in the village of the accused regarding torture upon his
daughter by the accused persons. The accused persons promised
before the Salish that they would not torture upon his daughter any
further but thereafter due to torture his daughter committed suicide.
He asked one Ranjit Pandit to write First Information Report on his
behalf and under his instruction and in his presence the said Ranjit
Pandit wrote the First Information Report and read over the contents
to him.

During cross-examination, P.W. 1 stated that he has stated
before the scribe that his daughter told him that her husband
demanded a bicycle from her and as he failed to fulfil the said
demand, her husband and her in laws started torture upon her both
physically and mentally. He also stated that he informed the
Panchayat Member namely Durga Debnath about the physical and
mental torture by the accused persons.

P.W. 2, Arati Debnath, during examination in chief stated that
she did not have any visiting terms in the house of the accused. So,
she could not say how the victim resided in her matrimonial house.
Rita Debnath committed suicide in her matrimonial house few years
back. The said witness was declared hostile from the side of the
prosecution and cross examined by the prosecution as well as
defence.

During cross-examination by prosecution the said P.W. 2 stated
that she only stated before the Investigating Officer that one day
Krishna Debnath chased the victim Rita Debnath by a lathi and she
came running to her house. Her house and the house of the accused
are intervened by only one house.

During cross-examination by defence the said witness stated
that it is fact that Rita Debnath was happy in her family. She has
only seen one unpleasant incident between Rita Debnath and her
husband.

P.W. 3, Rameswar Pandit, during examination stated that he
knew Rita Debnath, the wife of Krishna Debnath. She committed
suicide by taking poison in her matrimonial house. He knew that
Rita Debnath was well in her matrimonial house. The said witness
was declared hostile and cross examined by prosecution as well as
defence.

P.W. 4, Lakhi Debnath, during examination stated that he knew
Rita Debnath and she committed suicide in her matrimonial house,
i.e. the house of accused person more than 2 and half years ago. The
said witness was also declared hostile and cross-examined by
prosecution as well as defence.

P.W. 5, Sunil Debnath, during examination stated that after
returning from his work in the evening, he heard that Rita Debnath
committed suicide by taking poison. The said witness was declared
hostile and cross examined by prosecution as well as defence.

P.W. 6, Manju Debnath, the mother of the victim, Rita Debnath
during examination stated that after marriage her daughter went to
her matrimonial house and started living with her husband and
parents in law. Her daughter used to visit her house after her
marriage. The appellant used to torture her daughter both physically
and mentally on the plea that she could not household work properly.
Krishna Debnath used to assault her physically, especially when she
used to sit for her lunch, the accused persons were in the habit of
throwing her food plate and did not allow her to eat properly.
Accused, Krishna Debnath demanded a bicycle from his in laws at
the time of marriage. They are poor and they could not fulfil the
demand of Krishna Debnath for which he used to assault and torture
on her daughter. As the degree of torture increased by the accused
persons upon her, she committed suicide by taking poison.

During cross-examination P.W. 6 stated that she spent nights
in the house of the accused. Initially, after marriage the accused
persons welcomed her in their house properly only once or twice,
thereafter, they did not welcome her in their house whenever she
visited their house to see her daughter. She had been talking terms
with the neighbours of the accused. The neighbours also told her
that the accused persons subjected her daughter to physical and
mental torture. She did not know the names of the neighbours of the
accused. In the month of Falgun of that year when she went to the
house of the accused to bring her daughter to her house, the
accused, Krishna Debnath used filthy languages towards her and
also abused her daughter with filthy languages. Thereafter, she took
back her daughter to her house and she and her daughter felt very
much insulted. At the end of Chaitra her husband took her daughter
to her matrimonial house and left her there. Thereafter, at the end of
Jaistha her daughter committed suicide by taking poison. She
further stated that at the time of marriage the accused persons
demanded gold ornaments but they had not demanded necklace and
payel.

P.W. 7, Ranjit Pandit is the scribe of this case. During
examination, he stated that at the time of marriage Harendra gave
cash, ornaments etc. to the accused. The accused demanded a cycle
from Harendra, but he could not meet the demand. Harendra told
him about it. After marriage Rita went to her matrimonial house.
His house is nearer to the house of the accused. He was a frequent
visitor there and he had his business also in that locality. One day
when he was in his brother’s house, he heard a hallah and saw that
Krishna was chasing Rita with a lathi. Rita was running and took
shelter in a nearby house and some people gathered at the spot. He
asked Krishna as to why he was chasing his wife with a lathi. He
made complaint against his wife. About four years ago Rita
committed suicide by taking poison in the house of the accused.
Harendra requested him to write a complaint. He wrote the
complaint under the instruction and presence of Harendra. He read
over the same and thereafter, Harendra put his signature on it.

During cross-examination, the said witness stated that he had
visited terms in the house of accused. He went to their house several
times.

P.W. 8, Jyoti Debnath, during examination stated that he was
present at the time of marriage. He heard that the accused
demanded a cycle at the time of marriage. Rita after marriage went to
her matrimonial house and started residing there with her husband
and in laws. Whenever, Rita came to her mother’s house she used to
tell him that her husband, sister in law and parents in law subjected
her to torture. The accused used to assault her physically and
mentally and did not provide her food. Rita committed suicide for
more than four years ago by taking poison due to torture by the
accused.

P.W. 9, Mina Debnath, during examination stated that she could
not say anything regarding the relationship between Rita with the
accused persons. Investigating Officer has not interrogated her. The
said witness was declared hostile and during cross examination by
the prosecution she stated that the police interrogated her and on
interrogation she stated to the police about the factum of torture.

P.W. 10, Sanjit Pandit, during examination stated that Rita
Debnath committed suicide by taking poison about four years ago.
He did not know the reason of her suicide. Learned Advocate for the
accused declined to cross examine him.

P.W. 11, Sachindra Debnath, during examination stated that
four years ago Rita Debnath committed suicide by taking poison.
Rita used to come to her father’s house frequently. Rita at that time
used to tell that her husband and family members in her matrimonial
house subjected her to physical and mental torture. They did not
provide her proper food and clothing.

During cross-examination P.W. 11 stated that Harendra was his
neighbour. Rita used to call him Mama. He visited the matrimonial
house of Rita once or twice after her marriage. He was well received
by the family members of Rita Debnath when he visited her
matrimonial house. It is fact that his house is situated contiguous to
the house of Harendra Debnath.

P.W. 12, Anima Debnath, during examination stated that Rita
Debnath committed suicide by taking poison about four years ago.
After marriage Rita used to come to her parent’s house frequently. At
that time she told her that her husband, sister-in-law and mother-in-
law subjected her to physical and mental torture. They did not
provide her food or clothing. So, staying at her parent’s in law house
she used to earn money by working in another’s house to meet her
personal expenses. During cross-examination this witness stated that
Rita used to call her Mami. Police interrogated her after a week from
the date of incident.

P.W. 13, Aruna Debnath, during examination stated that
Krishna Debnath and his parents were her neighbours. Rita Debnath
was the wife of Krishna Debnath. She committed suicide by taking
poison at her matrimonial house. Krishna Debnath, his father,
Surendra Debnath and his mother Promoda Debnath used to torture
Rita during her stay at her matrimonial house. They saw all the
accused persons assaulting Rita physically and they did not provide
proper food to her. Her house is situated near the house of accused
persons intervened by 2/3 bighas of land. She saw twice Krishna
Debnath chasing his wife to assault her physically as she demanded
food to eat. As the degree of torture became unbearable, Rita
committed suicide by taking poison.

During cross-examination P.W.13 stated that she was not
frequent visitor in the house of the accused. But she heard about the
torture upon Rita Debnath by the accused persons. Rita Debnath
used to come to her house and told them about the torture she was
suffering in her matrimonial house.

P.W. 14, Dr. Sajal Bhattacharjee during examination stated that
he conducted post-mortem of the deceased, Rita Debnath, female,
aged about 25 years. On autopsy he found face of the deceased was
congested, cyanosis observed of lips, fingers and toes, blood stain
froth extending from angle of mouth on left side. Post mortem report
marked as Exhibit 2 and the signature of the doctor marked as
Exhibit 2/1. He further stated that it appeared to him that it was a
case of poisoning.

P.W. 15, Ganga Dhar Karjee, the constable stated that he proved
signature in the seizure list marked exhibit 4. During cross-
examination this witness stated that he did not have any personal
knowledge about the incident.

P.W. 16, Ansur Ali, another constable during examination stated
that he signed the dead body challan and his signature marked as
Exhibit 5 and he identified the dead body to doctor.

P.W. 17, Bhim Kumar Dural, A.S.I. of police during examination
proved his signature in the carbon copy of requisition which was sent
for inquest of the deceased and also proved dead body challan
marked as Exhibit 5/1 and two seizure lists marked as Exhibit 7 and
7/1.

P.W. 18 is also an A.S.I. who prepared the inquest report.

P.W. 19, Swapan Kumar Sengupta is the Investigating Officer in
this case that on 22nd July, 2004 he was posted at Samuktala Police
Station as a Sub-Inspector. At that relevant time, S.I. Pankaj Thapa
was the officer-in-charge of Samuktala Police Station. He was
entrusted for causing investigation of this case by the then officer-in-
charge of Samuktala Police Station. After taking charge of
investigation he perused the First Information Report and visited
place of occurrence and prepared a rough sketch map with index. He
also examined the available witnesses and recorded their statement
under section 161 of the Code of Criminal Procedure. He seized some
articles by preparing the seizure list marked as Exhibit 10. He
collected the post mortem report of victim and surathal report of
deceased, Rita Debnath. He also collected FSL report. P.W. 19
examined Arati Debnath, the mother of the victim, who stated that
after the marriage husband Krishna Debnath, mother-in-law and
sister-in-law Meghi had started torturing upon Rita mentally and
physically in different ways and being unable to bear their torture on
7th June, 2004 Rita consumed poison behind the cow shed of her
husband’s house and expired at the Alipurduar Hospital. One day,
perhaps 6/7 days before the death of Rita (Krishna’s wife) at about 10
A.M. there was a hue and cry going on at the house of Krishna
consisting of the scolding and crying of all of their parents and sister
and often it was being heard that Krishna’s wife Rita was crying.
Krishna, being excited by the instigating words of his sister Rita alias
Meghi, mother Talki, father Surendra, started beating Rita as they
encouraged him to beat her more instead of resisting him from doing
so. She saw that Krishna’s wife Rita Debnath was coming out of her
house hurriedly and falling down on the ground again and again and
running towards her to save her life and behind her Krishna was
beating her with a bamboo stick breathlessly. The hairs of Rita were
untidy and slovenly and her clothes were disorderly just like what it
should be due to tussle. In that situation her sister-in-law Meghi saw
her and giving no scope, she rushing from her house caught hold of
the hairs of Rita and pulled her and fell her down on the ground and
started striking her with fist and kicking her and told that she would
face the consequence of eating in other’s house by begging.

P.W. 19 also examined Rameswar Pandit, who stated that
Krishna and her sister Meghi are very wicked and their parents were
also like them. All of them collectively used to torture upon the girl
physically and mentally in a planned way. Krishna was a very ill-
tempered fellow and used to beat Rita ruthlessly with and without
reason. They never gave her sufficient amount of food and clothes.
They used to torture upon Rita very much. Being unable to bear the
torture committed by them, Rita chose to commit suicide consuming
poison behind their cow shed on the last 7th June, 2004. P.W. 19
examined Laksmi Debnath, who during investigation stated before
him that Krishna was a very angry fellow. He, listening to the words
of his mother and sister Meghi used to beat Rita very much. Rita’s
mother-in-law did not use to give Rita sufficient amount of food and
did not use to give her clothes as per her requirements. She stated
before the Investigating Officer that Rita was not allowed to go to her
paternal house and she was not allowed to go into the kitchen. She
was only engaged in agriculture. Laksmi Debnath stated that at any
chance if Rita had to come to her, she used to say, “Please give me
some food, my sister-in-law and mother-in-law have not given me
anything. Being unable to bear such kinds of torture Rita consumed the
pesticides meant for spraying in the agricultural land from their cow
shed on the last 7th June, 2004.”

These are all the oral evidence adduced by the prosecution
witnesses.

Needless to say that the primary allegation against the accused
person is physical and mental cruelty upon the victim lady forcing
her to commit suicide. From the aforesaid evidence it appears that
the victim was married to the appellant and soon after the marriage
she was subjected to physical torture at her matrimonial home by the
appellant. I have also considered the evidence of the neighbours of
the victim namely P.W. 3, P.W. 12 and P.W. 13 in details. I find the
evidence of the said witnesses is corroborated by the other
prosecution witnesses, who stated that there was regular quarrel
between the victim and her husband. Motive of the crime has also
been proved by P.W. 1 P.W. 6, who deposed that the appellant and
the victim had bad relationship as the father of the victim could not
meet all the demands of dowry promised at the time of marriage.

Coming to the issue of sentence of Krishna Debnath, I find that
the incident occurred on 7th June, 2004 and the judgement and
sentence was passed on 23rd April, 2012. The appellant is in jail
since then. Under such circumstances, sentence imposed upon the
appellant is modified to the extent that the appellant is sentenced to
suffer rigorous imprisonment for 3 (three) years for the offence
punishable under section 498A of the Indian Penal Code and to pay a
fine of Rs. 2,000/- (rupees two thousand), in default to suffer
rigorous imprisonment for six months. The appellant is also found
guilty for the offence under section 306 of the Indian Penal Code. His
sentence on such score is reduced from rigorous imprisonment for 7
years to 5 years and he is further directed to pay a fine of Rs. 5000/-
(rupees five thousand), in default to suffer further rigorous
imprisonment for one year more. Both the sentences shall run
concurrently.

The appeal is, accordingly, dismissed.

The period of detention suffered by the appellant during
investigation, enquiry or trial shall be set off against the substantive
sentence imposed upon him under section 428 of the Code of the
Criminal Procedure.

Copy of the judgment along with LCR 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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