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Swapan Bairagya & Ors vs The State Of West Bengal on 12 July, 2018

IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction

BEFORE:

The Hon’ble Mr. Justice Joymalya Bagchi
And
The Hon’ble Mr. Justice Ravi Krishan Kapur

C.R.A. 182 of 2014
Swapan Bairagya Ors.
vs.
The State of West Bengal

For the Appellant : Moinak Bakshi

For the State : Saswata Gopal Mukherjee, P.P.,
Parth Pratim Das

Heard on : July 12, 2018

Judgement on : July12, 2018

Joymalya Bagchi, J. :

The Appeal is directed against judgment and order dated 3.2.2014 passed

by learned Additional Sessions Judge, Bishnupur, Bankura in Sessions Trial No.

01(03) 09 arising out of Sessions Case No. 16(02)13 convicting the appellants for

commission of offence punishable under Sections 498A/304B of the Indian

Penal Code and sentencing them to suffer rigorous imprisonment for life and to

pay a fine of Rs.5,000/- each, in default to suffer imprisonment for six months

more each for the offence punishable under Section 304B of the Indian Penal

Code and to suffer simple imprisonment for three years and to pay a fine of
Rs.2,000/-, in default to suffer imprisonment for one month more each for the

offence punishable under Section 498A of the Indian Penal Code. Both the

sentences to run concurrently. The fine amount, if realised, shall be paid to the

mother of the victim (P.W.8).

The prosecution case, as alleged against the appellants, is to the effect

that on 9.12.2010 Poulami @ Rama was married to appellant no.2, Raj Kumar

Bairagya according to Hindu rites and customs. As per the demands of the

appellants, father of the victim housewife, Swapan Das (P.W.5) gave Rs.10,000/-

in cash, gold earrings for both ears, wearing apparels, boxes etc. as dowry. Due

to economic constraints he was unable to give two gold bangles, money,

beddings at that time. After a few days the appellants started physical and

mental torture on the victim on further demands of dowry. The appellants used

to abuse her in filthy language and assaulted her. Despite several requests

torture upon the victim did not subside. In the month of October, the victim gave

birth to a minor daughter. Subsequently the torture increased upon the victim.

On 10.9.2012 around 11.30 at night appellant no.1 Swapan Bairagya, father-in-

law of the victim informed over phone to P.W.5, Swapan Das that his daughter

was missing from her matrimonial home. P.W.5 advised the appellants to inform

the matter to the local police. On the next day around 5 a.m. P.W.5 was

informed over phone that the dead body of the victim was lying in the pond. He

rushed to the place of occurrence. He believed that the victim had been

murdered on further demands of dowry and her body was thrown into the pond.

Over the incident he lodged complaint with Patrasayer Police Station resulting in

the registration of Patrasayer P.S. Case No. 102 of 2012 dated 11.9.2012 under

Sections 498A/302/304B/34 of the Indian Penal Code.
In conclusion of investigation, charge sheet was filed against the

appellants and the case was committed to the Court of Sessions and thereafter

transferred to the court of Additional Sessions Judge, Bishnupur, Bankura, for

trial and disposal. Charges were framed under Sections 498A/304B/302/34 of

the Indian Penal Code against the appellants. The appellants pleaded not guilty

and claimed to be tried.

In the course of trial, prosecution examined 16 witnesses and exhibited a

number of documents. It was the specific defence of the appellants that the

appellant nos.2 and 3 were not present at the place of occurrence. They,

however, did not examine any witness to probabilize such fact.

In conclusion of trial, the Trial Judge by the impugned judgement and

order dated 3.2.2014 convicted and sentenced the appellants, as aforesaid.

Mr. Bakshi, learned counsel appearing for the appellants argued that the

prosecution has not been able to prove the torture upon the victim over

demands of dowry beyond reasonable doubt. Apart from the relatives of the

victim no other witness has spoken of the demand of dowry by the appellants.

Evidence with regard to torture upon the victim are also general and omnibus.

P.Ws.1, 3 and 4 did not state that the torture on the victim was over demands of

dowry. Hence, there is no evidence to show that the victim was tortured over

further demands of dowry soon before her death. Essential prerequisites for

attracting the statutory presumption under Section 113B of the Evidence Act

have not been established. On the other hand, there is evidence on record that

appellant no.1 was at the market place at the time of occurrence and that the

appellant no.2 was at his place of work which was far away from the place of

occurrence. In the light of the aforesaid evidence on record, it cannot be said
that the prosecution has been able to prove its case beyond reasonable doubt.

Hence, the appellants are entitled to an order of acquittal.

Learned Public Prosecutor argued that the evidence on record shows that

the victim was subjected to continuous torture over further demands of dowry.

Torture on the victim with regard to further demands of dowry is reflected in the

first information report itself. Evidence of torture on the victim is corroborated

by the local witnesses, P.Ws. 1, 3 and 4. Hence, it is evident that the victim was

subject to torture at her matrimonial home over further demands of dowry soon

before her unnatural death within two years of marriage. Accordingly, conviction

and sentence of the appellants may be upheld and the appeal be dismissed.

P.Ws.1 to 4 are the neighbours of the appellants. P.W.1, Ashok Kaibarta

deposed that Poulami was married to Raj Kumar Bairagya @ Bapi Das. In her

marriage dowry was given. After the marriage she started residing at her

matrimonial home. There were disturbances at the matrimonial home in

connection with further dues of dowry. On 10.9.2012 Poulami’s mother-in-law

came to their house and asked him to call her husband (Poulami’s father in law)

as Poulami could not be found anywhere. Next morning dead body of Poulami

was found floating in the doba in front of his house. He heard that Poulami was

killed and thrown into the doba.

In cross-examination, he stated that Patrasayer market is about 35 km

from Bishnupur Town. There are 3 / 4 houses adjoining the doba. Around 6

a.m. he saw the dead body floating on the southern side of the doba.

P.W.2, Chandan Das Kaibarta deposed that Poulami was married to Raj

Kumar Bairagya. He heard that she was missing on 10.9.2012. On 11.9.2012

her dead body was found floating in the doba.
P.W.3, Abhoy Kaibarta deposed that Poulami was married to Bapi

Bairagya. She was residing at her father-in-law’s house. Her husband used to

assault her and the neighbours used to tell them not to assault her. On

10.9.2012

Kush (P.W.4) went to search for Poulami around 7 p.m. She could not

be found. Next morning many people gathered at Heli’s small pond. Dead body

of Poulami was found floating there. He heard that she had been murdered.

P.W.4, Kush Kaibarta deposed that Poulami was married to Rajkumar @

Bapi Bairagya. After marriage she was residing at her in-laws’ house. There

were quarrels and fights. On 10.9.2012 Swapan came at Patrasayer Bazar and

told him that Poulami could not be found and requested him to search for her.

They searched for Poulami but could not find her. He advised Swapan to inform

the matter to police, but he said that he will inform later on. He was examined

by police after 22-23 days. Deadbody of Poulami was found floating on the

doba.

In cross-examination, he stated that his house on the west side of the

pukur. He was not there when the dead body was brought out.

P.W.5, Swapan Das is the father of the victim and the informant in the

instant case. He stated that Poulami was married to Raj Kumar Bairagya on

9.12.2010. At the time of marriage, Rs.10,000/-, two gold ear rings, one gold

finger ring, 7 utensils and other articles and wearing apparels were given as

dowry. Almost 10,000/- in cash, two bangles, and beddings were due as those

articles could not be given due to economic constraints. After three months of

marriage, the appellants started inflicting torture on Poulami and abused her

over demands of dowry. She gave birth to a daughter. Torture increased

thereafter. On 10.9.2012 Swapan Bairagya called him over phone at 11.30 p.m.
and told him that his daughter could not be traced. He advised Swapan to

inform the police. Next morning at about 5/5.30 a.m. Swapan again called him

and informed his daughter was found floating in water in the pond nearby her

in-laws’ house. He rushed to the place of occurrence and found the dead body

of his daughter floating in the pond. He informed the matter to the police.

Dhananjay wrote the complaint as per his instruction. He signed the complaint

(Ext.1). He saw marks of injury on the right cheek. The appellants killed his

daughter and threw her in the water. Police prepared a report. He signed on it

(Ext.2/1).

In cross-examination, he stated that marriage of daughter and Raj Kumar

was held at Ekteswar Temple, Bankura. At that time Rajkumar was working a

waiter at Madhuban lodge at Heavy more. The distance between Heavy more

and village Patrasayer is 130 km. The Lagna Patra with regard to the marriage

is with the grooms’ family.

P.W.6, Dhananjay Mahato is the maternal grandfather of the victim and

the scribe of the first information report. He corroborated the evidence of P.W.5

and deposed that he wrote the first information report as per his instructions.

P.W.7, Debjeet Gasnguli held inquest over the dead body of the victim. He

proved the inquest report (Ext.3).

P.W.8, Suchitra Das is the mother of the victim. She deposed that

Poulami was married to Rajkumar. She also corroborated the evidence of her

husband (P.W.5) with regard to the torture on her daughter over further

demands of dowry and her death on 11.9.2012.

In cross-examination, she stated that her daughter was married on

9.12.2010 at Ekteswar Temple, Bankura. The marriage was conducted at about

12.00 / 1.00 mid night.

P.W.9, Kousick Chatterjee deposed that he was present at the time of

marriage between the couple which was held at Ekteswar Temple, Bankura.

P.W.10, Rakesh Das is the brother of Poulami. He deposed that Poulami

was married with Rajkumar Bairagya on 9.12.2010 at Ekteswar Temple,

Bankura. At the time of marriage Rs.10,000/- cash, 2 gold ear rings, one gold

finger ring, 7 utensils and other articles and wearing apparels were given as per

the demand of the appellants. Dowry to the tune of Rs.10,000/- was due. After

2/3 months of marriage, the appellants started physical and mental torture on

the victim. Parents used to tell the victim to adjust and live at her matrimonial

home. She had a daughter. In August, 2012 he went to keep his sister back at

the matrimonial home. Her in-laws did not permit him to enter the house and

told him to sit in front of the house. They also threatened him that political party

people will come and would prepare written document and thereafter he would

be allowed to go. On 10.09.2012 around 11.30 P.M. they received phone call

informing that his sister could not be traced and they told the appellants to

inform Patrasayer P.S. They went to Bankura P.S. but Bankura P.S did not do

anything. They came back home. On 11.09.12, the next morning at 5.30 A.M.

they again received a phone call informing them that his sister’s dead body was

floating in a pond near her in-laws house. They rushed there and reached the

place of occurrence at 7.30 A.M. Police prepared inquest report. He signed on
the inquest report. They went to Patrasayer P.S. Her sister’s dead body was sent

to Bishnupur Hospital for Post Mortem examination.

P.W.11, Dr. Tarik Kanti Pal conducted post mortem over the dead body of

the victim. He found the following injuries:

“Abrasion on left shoulder region (scattered abrasion),
Haematoma over the scalp, Sub dural and extra dural
haematoma noted, haematoma over brain matter,
multiple haemorrhage spots on both lungs.”

In his opinion, the death was due to shock in a case of head injury, ante

mortem and homicidal in nature. He proved the report (Ext.4). He deposed that

abrasion may occur due to assault and multiple haemorrhage spots on both

lungs may be caused if the person is assaulted by kicks on lungs. He further

deposed that Sub dural and extra dural haematoma and haematoma over brain

matter may be caused by forceful banging of head against any hard substance

or surface. Death could not have occurred after drowning as no mud or sand

was found in the stomach. There was no mud or sand on the body of the victim.

P.W.12, Mahdusudan Chowdhury and P.W. 13, Dilip Kumar Das were

constables attached to Patrasayer P.S. They were present at the time of seizure

of wearing apparels of the victims as well as photographs of her marriage. They

proved their signatures on the seizure list.

P.W.15, Manabendranath Pal received complaint of Swapan Das. He

prepared formal FIR (Ext.8).

P.W.16, Sd. Abdul Ashan, is the investigating officer in the instant case.

He visited Place of Occurrence. He drew up rough sketch map with index (Ext.9).

He recorded statements of witnesses. He collected Post Mortem report. He
proved the inquest report (Ext.2/2). He seized the photograph of marriage of the

couple under a seizure list (Ext.7). He identified the photograph (Mat Ext.I). He

seized wearing apparels under a seizure list (Ext.6). He arrested the accused

persons and interrogated them. He also prepared a hand sketch map of the

matrimonial home of the victim (Ext.10). He submitted charge sheet.

From the evidence on record, it appears that the victim was married to

appellant no.2 on 09.12.2010. Evidence of her parents, P.W.s 5 and 8 and her

relations, that is, her grandfather, P.W.6 and her brother, P.W.10 established

that at the time of marriage some dowries were given as per demands of the

appellants. There were outstanding dowry demands which could not be met due

to economic constraints. 2/3 months after marriage, appellants started inflicting

torture to the victim over further demands of dowry. She was assaulted and ill-

treated by the appellants.

It has been argued that the evidence of relatives relating to torture over

demands of dowry are not corroborated by independent witnesses. I am unable

to accept such contention. Evidence of P.W.1, a neighbor of the appellants,

deposed that the victim was subjected to torture over further demands of dowry.

Evidence of P.W.3 and 4 also speak of torture upon the victim housewife during

her lifetime. Hence, it appears that the prosecution has been able to prove that

the victim had been subjected to torture at her matrimonial home over further

demands of dowry which could not be paid due to economic constraints of her

father, P.W.5. Admittedly, the victim suffered unnatural death on 11.9.12.

Evidence of P.W.11, Post Mortem doctor unequivocally states that the victim had

suffered a number of injuries which were ante mortem and homicidal in nature.

Evidence of P.W.10, brother of the victim, established that in August, 2012

(that is, soon before the death of the victim on 11.09.2012) when he had gone to

keep the victim at her matrimonial home, he was detained outside the house

and was threatened that he would not be allowed to go until and unless a

written documents was prepared in presence of political persons of the locality.

The aforesaid facts establishes beyond doubt the primary ingredients of

the offence punishable under Section 304B of the IPC, namely,

A) Appellants demanded dowry from the family of the

victim which remain unpaid;

B) Over such issue, victim was subjected to torture;

C) Victim suffered unnatural death within two years of her

marriage;

D) Soon before the death, victim was subjected to torture

over demands of dowry.

Proof of the aforesaid circumstances, in the factual matrix of the case,

shifts the onus on the appellants in terms of Section 113B of the Evidence Act to

establish that they are not guilty. Learned counsel appearing on behalf of the

appellants submitted that there is evidence on record that appellant no.2, the

husband of the victim, was working at Madhuban Lodge which is situated far

away from the place of occurrence and that appellant no.1, her father-in-law,

was in the market which is at a distance of 35 kms from the matrimonial home

of the victim when she was murdered.

I am unimpressed by such submission. Firstly, apart from vague

suggestions that the appellant no.2 used to work in the lodge, there is no

evidence on record that on the date of occurrence he was not at his home but
was working in the said lodge. It is trite law that any plea of alibi is to be proved

by the defence. Appellants have not led any evidence whatsoever to show that on

the date of occurrence appellant no.2 was at Madhuban Lodge, as argued.

Defence plea that the appellant no.1 was at the market at the time of occurrence

has also not been proved. Moreover such plea, even if proved, does not wholly

improbabilise presence of appellant no. 1 at the place of occurrence. The alibi

pleaded by the appellants not only remains unproved but in my considered

opinion is of little consequence when was one considers the legality of their

conviction under Section 304B of the IPC. Offence under Section 304B of the IPC

does not cast a burden on the prosecution to show that it was the appellants

who had murdered the victim. On the other hand, it is the duty of the accused

persons to rebut the statutory presumption under Section 113B of the Evidence

Act if the prosecution is able to establish that the victim was subjected to torture

over demands of dowry soon before her unnatural death within seven years of

marriage. In the light of the aforesaid discussion, I have no doubt in my mind

that the prosecution has proved the aforesaid facts beyond doubt in this case.

Vague and fanciful plea of alibi by the defence are unconvincing and insufficient

to rebut the aforesaid legal presumption. Accordingly, I uphold the convictions

recorded against the appellants under sections 304B and 498A of the Indian

Penal Code.

Coming to issue of sentence, I find that appellant no.1 and 3 are aged

persons and appellant no.3 was taking care of the child of the couple.

In view of the aforesaid fact, I reduce the sentences imposed on appellant

no. 1 and 3 on the count of the offence under section 304B of the Indian Penal

Code and I direct that appellant no.1 shall suffer rigorous imprisonment for 10
years and shall pay a fine of Rs.5,000/- in default to suffer rigorous

imprisonment for six months more and appellant no.3 shall suffer rigorous

imprisonment for 7 years and to pay a fine of Rs.5,000/- in default to suffer

rigorous imprisonment for six months more. Sentences imposed upon them on

score of offence punishable under section 498A of the Indian Penal Code are

upheld.

Sentences imposed upon appellant no.2 shall remain unaltered.

Both the sentences shall run concurrently.

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 428 of the Code of Criminal Procedure.

With the aforesaid modifications as to sentence, the appeal is disposed of.

Copy of the judgment along with L.C.R. be sent down to the trial court at

once.

Urgent Photostat Certified copy of this order, if applied for, be supplied

expeditiously after complying with all necessary legal formalities.

(Joymalya Bagchi, J.)

I agree.

(Ravi Krishan Kapur, J.)

AB/rkd PA

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