Back
2018 Supreme(Cal) 937
IN THE HIGH COURT AT CALCUTTA
Joymalya Bagchi, Ravi Krishan Kapur, JJ.
Swapan Bairagya & Ors. - Appellant
Vs.
The State of West Bengal - Respondent
C.R.A. 182 of 2014
Decided On : 12-07-2018
For the Appellant : Moinak Bakshi
For the State : Saswata Gopal Mukherjee, P.P., Parth Pratim Das
The prosecution's burden to prove torture over dowry and unnatural death, shifting the onus on the accused to establish innocence, and the insufficiency of alibi to rebut legal presumption.
Headnote:
Dowry - Offence under Sections 498A/304B of the Indian Penal Code - 498A, 304B, 302, 34
Fact of the Case:
The victim was married to appellant no.2 and was subjected to continuous torture over further demands of dowry. She suffered an unnatural death within two years of marriage. The appellants were convicted and sentenced for the offence under Sections 498A/304B of the Indian Penal Code.
Finding of the Court:
The court found that the victim was subjected to torture over further demands of dowry, leading to her unnatural death. The evidence of torture was corroborated by witnesses, and the post mortem report confirmed homicidal injuries. The court upheld the convictions under Sections 498A/304B of the Indian Penal Code.
Issues: The primary issues were the demand of dowry, torture on the victim, and the unnatural death within two years of marriage. The court also considered the plea of alibi by the appellants.
Ratio Decidendi: The court held that the prosecution had proved the victim's torture over demands of dowry and her unnatural death, shifting the onus on the appellants to establish their innocence. The plea of alibi was unconvincing and insufficient to rebut the legal presumption.
Final Decision: The court modified the sentences for the aged appellants but upheld the convictions under Sections 498A/304B of the Indian Penal Code. The appeal was disposed of with the judgment sent to the trial court.
JUDGMENT :
Joymalya Bagchi, J.
1. 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).
2. 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.
3. 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.
4. 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.
5. In conclusion of trial, the Trial Judge by the impugned judgement and order dated 3.2.2014 convicted and sentenced the appellants, as aforesaid.
6. 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 Sectio
