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Tapas Kumar Ghosh-vs-State Of West Bengal on 27 November, 2006

Calcutta High Court Tapas Kumar Ghosh-vs-State Of West Bengal on 27 November, 2006
Equivalent citations:2007 (4) CHN 645, 2007 CriLJ 434
Author: A K Basu
Bench: A K Basu, T K Giri

JUDGMENT

Alok Kumar Basu, J.

1. Appellant Tapas Kr. Ghosh was convicted under Section 498A as well as under Section 304B of the I.P.C. by the learned Sessions Judge, Hooghly in connection with Sessions Trial No. 182 of 1992 and after conviction said appellant was sentenced to suffer rigorous imprisonment for life under Section 304B of the I.P.C. and he was further sentenced to suffer rigorous imprisonment for three years and also to pay a fine of Rs. 2,000/-in default to suffer rigorous imprisonment for two months more for the offence under Section 498A of the I.P.C.

2. Being aggrieved by and dissatisfied with the order of conviction and sentence appellant preferred this appeal.

3. The prosecution case, in brief, was that Smt. Putul Ghosh alias Ira was married to the present appellant on 26th November, 1993 following Hindu rituals and customs. It was alleged by the father of Putul that although during marriage sufficient dowry was given to the appellant, but, the appellant was not. satisfied and for this reason Putul was subjected to torture and cruelty ever since her marriage. It was specifically mentioned in the written complaint by Durga Prasad Sarkar father of Putul that appellant created pressure on Putul for bringing a scooter from her father. Durga Prasad Sarkar came to learn that on 27th January, 1994 dead body of Putul was found on the railway track between Chandannagore Railway Station and Mankundu Railway Station and on 28th January, 1994 Durga Prasad Sarkar lodged the complaint with Chandannagore P.S. alleging foul play on the part of the appellant behind the unnatural death of Putul Ghosh.

4. On the basis of written complaint of Durga Prasad Sarkar, Chandannagore P.S. started the case and on completion of investigation and mainly on the basis of post mortem report and opinion of doctors, charge sheet was submitted both against the present appellant and his brother for their trial under Sections 498A, 302, 304B and 201 of the I.P.C.

5. The learned Trial Judge on the basis of papers placed before him and on hearing both prosecution and the appellant framed charges against the appellant under Section 498A/304B in the alternative under Section 302 of the I.P.C. along with Section 201 of the I.P.C. and the appellant pleaded innocence to those charges and claimed for trial.

6. During trial, the learned Court below recorded the statement of 17 witnesses including P.W. 1 Durga Prasad Sarkar, P.W. 2 Achintya Bose, P.W. 3 Smt. Anima Sarkar, P.W. 7 Smt. Juthika Bose, several doctors who conducted post mortem examination and the investigating officer.

7. The learned trial Judge, on perusal of prosecution evidence namely the statement of P.W. 1 father of the victim housewife, P.W. 2 sister-in-law of the victim housewife. P.W. 3 mother of the victim housewife and P.W. 7 sister of the victim housewife came to the conclusion that Putul was the legally married wife of appellant and soon after marriage appellant started torturing Putul both physically and mentally for a scooter to be brought from the house of P.W. 1 and, that apart, appellant was also dissatisfied with the quality of the articles given by P.W. 1 during marriage.

8. The learned Trial Judge, having regard to the post mortem report and opinion of several doctors who participated during post mortem examination of the victim housewife, came to the conclusion that Putul died in a most suspicious circumstances and her death was unnatural within the meaning of Section 304B of the I.P.C. and when Putul died within two months of her marriage and there was demand of dowry from the appellant immediately before her death and soon after the marriage, the learned Judge was of the view that appellant was guilty for the offence under Section 304B and also under Section 498A of the I.P.C.

9. The learned Judge, on perusal of medical evidence and after hearing both the sides, however, did not accept the alternative charge framed under Section 302/201 of the I.P.C. against the appellant.

10. Thus, on conclusion of trial, the learned Judge convicted the appellant both under Section 498A as well as under Section 304B of the I.P.C. and the appellant was sentenced accordingly.

11. Appearing for the appellant, Mr. Sekhar Basu being assisted by Mr. Tapas Ghosh, first of all, placed before us the entire prosecution evidence particularly, medical evidence and statement of P.W. 1, P.W. 2, P.W. 3, P.W. 5 and also P.W. 7.

12. Mr. Basu submits that from the en tire prosecution evidence particularly with reference to the statement of investigating officer P.W. 17 we do not get a clear picture as to the place of occurrence and when the place as well as the alleged time of occurrence was in complete mystery, prosecution cannot claim an order of conviction from any Court of law and in this context Mr. Basu has referred to us the celebrated Judgment of Hon’ble Justice Asutosh Mukherjee as reported in the case of Mamfru Chowdhury and Ors. v. King Emperor .

13. Mr. Basu with reference to the medical evidence and the post mortem report submits that although from the early stage there was persistent attempt to project the unfortunate death of the housewife as a homicidal death both from the side of the investigating officer as well as from the prosecution, but, on ultimate analysis the learned Trial Judge did not support such contention and from the medical evidence itself it would be clear that the victim house wife met an accident and as a result of such accident she died. Mr. Basu contends that it is really unfortunate that the housewife within a shortest period from her marriage met an unfortunate death, but, so far the evidence on record particularly medical evidence are concerned, prosecution miserably failed to convince the Trial Court that it was a case of suicide and the learned Trial Court while being guided by emotion and sentiment, but, without getting any material evidence subscribed to the view of the prosecution during argument and accepted that Putul probably committed suicide and this observation of the learned Trial Court to attract the penal provision of Section 304B of the I.P.C. appears to be totally unfounded and unsustainable in law.

14. Mr. Basu contends that it is now accepted position of law that to substantiate the charge under Section 498A as well as under Section 304B of the I.P.C., there must be convincing evidence to satisfy the Trial Court that appellant was guilty of torture and cruelty over demand of dowry and such demand for dowry must have proximate nexus with the commission of suicide by the housewife. Mr. Basu submits that in this particular case I.O. did not examine a single independent witness and the witnesses examined by I.O. being father, sister, sister-in-law and mother of the housewife deposed in a most partisan manner only with the view of conviction of the appellant by any means.

15. Mr. Basu contends that on all the material points there are serious contradictions and omissions in the statement of P.W. 1, P.W. 2, P.W. 3 and P.W. 7 and this is available from the cross-examination of investigating officer as well as from the cross-examination of these prosecution witnesses and in view of such significant and important contradictions and omissions, the learned Trial judge was not justified at all placing his reliance on the statement of those witnesses.

16. Mr. Basu contends that P.W. 5 the maid servant of appellant in her statement during cross-examination clearly stated that there was cordial relationship between appellant and the housewife and this witness having the maximum opportunity to know the relation between appellant and the housewife should not have been disbelieved by the Trial Court.

17. Thus, Mr. Basu submits that when prosecution miserably failed to prove the actual place of occurrence and also the proximate time of occurrence, when there are grounds to hold that the housewife died in an accident and finally when the principal witnesses of prosecution made persistent effort to bring new facts during their examination before the Court which were not disclosed to the investigating officer, the learned Trial Judge erred in fact and law in accepting the prosecution case and thereby recording the order of conviction against the appellant both under Section 498A and 304B of the IPC.

18. Mr. Basu finally submits that in this case the sentence of life imprisonment recorded by the learned Trial Judge under Section 304B of the IPC appears to be harsh and totally disproportionate to the facts and circumstances on record and if this Court of appeal does not accept the points of the appellant for his prayer of acquittal, this Court should favourably consider the question of sentence imposed against the appellant.

19. The learned advocate appearing for the State in connection with this appeal vehemently opposed all the points taken by Mr. Basu in support of the appeal. The learned advocate for the State contends that the victim housewife died in a most suspicious manner within two months from her marriage and keeping in mind that the marriage was a settled marriage and parents of the housewife fulfilled all their duties and obligations regarding the marriage, the reason of the unnatural death of the housewife raises serious doubts about the conduct of the appellant.

20. The learned advocate contends that keeping in view the provision of Section 113B of the Indian Evidence Act along with Section 304B of the Indian Penal Code, if it is proved from evidence that the death took place within seven years of marriage and there were allegations for demand of dowry soon after the marriage and also immediately before such unnatural death and when the death Itself took place in a suspicious and unnatural manner, a presumption would certainly arise against the members of the matrimonial home particularly against the husband.

21. The learned advocate for the State contends that in this particular case the death did not take place in the matrimonial home as pointed out by the learned advocate for the appellant, but, that cannot absolve the appellant of his responsibility regarding explanation of the unnatural death, because, the housewife was found on the railway track not far away from the matrimonial house and it is the specific case of prosecution that appellant alone was residing with the housewife. The learned advocate, therefore, submits that in such a situation appellant cannot raise the plea of accidental death, but, he must prove by adducing convincing evidence that the housewife died in an accident. The learned advocate contends that in the case of Jashoda v. The State of M.P. reported in 2004 SCC (Criminal) 671 : AIR 2005 SC 1411, the Hon’ble Court having regard to the provision of Section 113B of the Evidence Act together with Section 304B of the Indian Penal Code observed that if accused raises the question of accidental death, whereas all the ingredients of Section 304B are satisfied by prosecution, the onus would He upon the accused to prove that the housewife died in an accident. The learned advocate contends that in this particular case apart from giving a vague suggestion to the prosecution witnesses, no attempt was made by the appellant to prove satisfactorily that his wife died in an accident. The learned advocate contends that the conduct of the appellant soon after the occurrence also speaks a volume against him, because, there is nothing on record to indicate that appellant himself or any member of his family informed the de facto complainant or his relatives about the death of the victim housewife.

22. The learned advocate submits that there may be some omissions in the statement of P.W. 1, P.W. 2, P.W. 3 and P.W. 7, but, if we consider the FIR averments along with the statement of all these witnesses, we would find with reference to the cross-examination of the investigating officer as P.W. 17 that on the overall allegations regarding demand of dowry and persistent ill-treatment towards the victim housewife, there appears no serious omissions or contradictions, rather P.W. 1, P.W. 2, P.W. 3 and P.W. 7 in one voice supported that soon after marriage appellant expressed his dissatisfaction with the quality of the marriage articles, there was persistent demand of scooter and the victim housewife was even not provided with necessary food and she was also kept confined in the room and all these facts taken together would certainly prove the act of the appellant within the mischief of both Sections 498A and 304B of the IPC. The learned advocate for the State, therefore, submits that there is practically no merit in the present appeal and there is no scope for interfering either with the order of conviction or sentence.

23. We have heard and considered submissions of Mr. Basu made on behalf of the appellant and also the learned advocate for the State and we have also carefully examined prosecution evidence both oral and documentary.

24. We find from record of the Trial Court that charges were framed under Section 498A as well as under Section 304B of the IPC alternatively under Section 302/201 of the IPC. The learned Trial Judge, however, after analysis of prosecution evidence particularly post-mortem report and statement of several doctors examined on behalf of the prosecution who took part in the postmortem examination ultimately came to the conclusion that the victim housewife did not suffer homicidal death. The learned Trial Judge, however, having regard to the statement of P.W. 1, P.W. 2, P.W. 3 and P.W. 7 and with reference to the post-mortem report and statement of the doctors, came to the conclusion that appellant was liable to be convicted both under Section 498A as well as 304B of the IPC and accordingly the learned Judge recorded his order of conviction and sentence.

25. We may quote Section 304B of the IPC as it appears in the statute book for the purpose of our discussion as required to dispose of this appeal:

Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.

26. From the reading of Section 304B of the IPC we find that to attract the penal pro vision of Section 304B of the IPC the following points are essential and prosecution must prove those points in order to claim a conviction under the said Section:

1. The death of a woman should be caused by burns or bodily injury or otherwise than under normal circumstances;

2. Such death should have occurred within seven years of her marriage;

3. She must have been subjected to cruelty or harassment by her husband or any relative of her husband;

4. Such cruelty or harassment should be for or in connection with payment for dowry.

27. It is pertinent to mention that in the present case apart from charge being framed under Section 304B of the IPC, separate charge was also framed under Section 498A against the appellant and the learned Judge found the appellant guilty thereunder after scanning of prosecution evidence and on hearing both prosecution and the accused person.

28. It has been argued on behalf of the appellant that the I.O. during investigation could not fix up the actual place of occurrence and also the actual time of death of the housewife and in this context, reference was made to the observation of their Lordships recorded in the case of Mamfru Chowdhury (supra). We find that while there is no denying of the legal position expressed in the decision of Mamfru Chowdhury, but, so far the fact of the present case is concerned and so far the charge framed against the appellant is concerned when the housewife admittedly died otherwise than under normal circumstances and, in fact, her dead body was found on railway track not far from the matrimonial home, the decision recorded in the case of Mamfru Chowdhury and Ors. has got no application in our considered opinion.

29. From the FIR as well as from the evidence of P.W. 1 to P.W. 3 and also P.W. 7 we find that Putul the victim housewife was married with the appellant on 26th November, 1993 and she died on 27th January, 1994 and thus, the first condition to attract Section 304B was satisfied in this case and there was no denial regarding this factual position from the side of the appellant.

30. From the post-mortem report as well as from the statement of several doctors examined by prosecution we find that there were bodily injuries on the person of the deceased housewife and those injuries were anti-mortem in nature and, in fact, according to medical opinion the victim housewife was run over by a train and her dead body was found on the railway track and this position was not disputed by the appellant which would establish the second ingredient of Section 304B of the IPC.

31. It has been strenuously argued on behalf of the appellant that there is practically no convincing evidence to subscribe to the view of the prosecution that housewife committed suicide and the prosecution allegation raised at the initial stage of investigation stood demolished by the learned Trial Judge after scanning of evidence and these two factors taken together would lead us to hold that prosecution miserably failed to show that the victim housewife either committed suicide or died otherwise than under normal circumstances.

32. We carefully considered the postmortem report and also the statement of several doctors and also the I.O. P.W. 17 and what we find in that the dead body was found on railway track and it was a mutilated dead body and there were several injuries on the dead body and by all probability it was a case of run over by moving wheels of a railway coach. The defence story which sought to be established was that the victim wife while boarding a train to reach her father’s house slipped from the coach and thus, by accident she was run over.

33. From the entire prosecution evidence and having regard to the medical report and statement of several doctors examined by the prosecution, we do not get any iota of evidence to support the defence suggestion that the victim wife ever boarded a train so that she might, slip from the train and thus caused her death accidentally.

34. With introduction of the Section 304B in the Indian Penal Code, legislature also brought into force a new Section 113B in the Evidence Act and under the provision of that Section of the Evidence Act where a housewife died within seven years of her marriage otherwise than under normal circumstances and where there would be an allegation of dowry demand, the Court is free to draw a presumption of dowry death against the husband and other members of the matrimonial home and of course that presumption is rebuttable by the husband or the persons involved in the offence.

35. In this particular case when there is no denial of the fact that the victim housewife died otherwise than under normal circumstances and her dead body was found on the railway track in mutilated condition, the entire burden was upon the appellant particularly in this case when it is undisputed fact that the housewife for the last time was exclusively under the custody of her husband as it would appear from the statement of P.W. 5 maid servant of the house as well as from the statement of the appellant himself during his examination under Section 313 of the Cr.P.C. and, curiously enough, appellant did not discharge this onus and naturally having regard to the prosecution evidence and having regard to the specific provision of Section 113B of the Evidence Act, we are constrained to hold that the housewife did not meet the death accidentally and when the learned Trial Court has already ruled out the case of murder, the only plausible explanation was that the housewife committed suicide on the railway track.

36. Once we come to the conclusion that the housewife committed suicide by jumping before a running train, we are bound to analyse the evidence and ascertain what was the reason of her suicide. According to the FIR as well as from the statement of P.W. 1 to P. W. 3 and P.W. 7 soon after marriage the housewife was tortured both physically and mentally and this was reflected from the facts:

1. The appellant was not satisfied with the quality of articles given during marriage;

2. The appellant did not allow the housewife to meet anybody and, in fact, she was kept confined within her room;

3. She was not given proper food during her stay with the appellant and finally, there was persistent demand for a scooter by the appellant to be brought from the father of the housewife.

37. P.W. 1 the father, P.W. 2 sister-in-law, P.W. 3 mother and P.W. 7 sister herself deposed covering all the. above facts during trial and with reference to the statement of I.O. as P.W. 17 although we notice some omissions and contradictions in the statement of those witnesses, but, if we carefully consider those statements along with cross-examination of I.O. we find that on the whole all those witnesses satisfactorily proved the prosecution case covering all those points and naturally, with this observation we come to the final part of Section 304B of the IPC and we observe that there was cruelty and harassment from the side of the appellant over demand of dowry in the form of scooter and, that apart, the appellant also subjected the housewife to regular cruelty and ill-treat ment and this would bring the appellant within the mischief of Section 498A of the IPC.

38. While analyzing the entire prosecution evidence after keeping in mind the criticism labelled against such evidence by the learned advocate for the appellant, we have taken into consideration two judgments of the Hon’ble Supreme Court in the case of Dhian Singh v. The State of Punjab reported in 2004 SCC (Criminal) 2077 : AIR 2005 SC 1450 and in the case of Yashoda v. The State of M.P. reported in 2004 SCC (Criminal) 671 : AIR 2005 SC 1411 and we are of clear opinion that the prosecution evidence recorded in this case without any question proved all the necessary ingredients of Section 304B as well as Section 498A of the IPC against the appellant.

39. Thus, after considering the submissions of both the sides and after carefully analyzing the prosecution evidence, we are of the view that the learned Trial Judge rightly recorded his order of conviction both under Section 498A and 304B against the appellant and there is no merit in the appeal so far the conviction order is concerned.

40. We have given our anxious consideration regarding the sentence imposed against the appellant by the learned Trial Judge and we have also considered submissions of the learned advocate for the appellant made in this regard.

41. Alter considering the relevant fact and evidence and after taking into account all the relevant circumstances of the case, we are, however, of the view that the sentence of imprisonment of life for the offence under Section 304B has been too harsh and that requires reconsideration in the interest of justice and we feel that instead of life imprisonment the appellant should be sentenced to suffer rigorous Imprisonment for ten years and also to pay a fine of Rupees 5,000/- in default rigorous imprisonment for one year more.

42. In the result, we allow this appeal in part and while confirming the order of conviction and sentence both under Sections 498A and 304B of the IPC, we modify the order of sentence passed under Section 304B to this effect that the appellant shall suffer rigorous imprisonment for ten years and also pay a fine of Rs. 5,000/- in default shall suffer rigorous imprisonment for an other one year more under Section 304B of the IPC.

43. Send a copy of this judgment and order at once to the Trial Court along with the LCR with a direction to issue modified jail warrant.

44. We find from record that the appellant was released on bail soon after admission of the appeal and as we confirm the order of conviction, we cancel the bail bond of the appellant with immediate effect and we direct the appellant to surrender before the Trial Court within 15 days from this order failing which the learned trial Court shall take necessary steps in accordance with law for arrest of the appellant and for sending him to prison to serve out the sentence.

45. Urgent xerox certified copy of this judgment and order be supplied as early as possible after complying with all required formalities.

Tapas Kumar Giri, J.

46. I agree.

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