Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Cal) 510

IN THE HIGH COURT AT CALCUTTA
BIBEK CHAUDHURI, J.
Netai Ghosh and Another – Petitioners
Versus
State of West Bengal – Respondent
CRA No. 147 of 2017
Decided On : 21-06-2021

Advocates:
Advocate Appeared:
For the Petitioner: Mr. Younush Mondal.
For the Respondents: Mr. Swapan Banerjee, Mr. Suman De.

Point of Law: Conviction set aside - Cruelty and Dowry Death - Prosecution failed to prove cause of death of deceased because report of autopsy surgeon shows that she was not in a position to give his final opinion as to cause of death before receiving chemical examiner’s report of viscera of deceased.

Headnote:
Indian Penal Code, 1860 Section 498A and 304B - Code of Criminal Procedure, 1973 - Section 374 - Order of conviction - Appeal against - Dowry Prohibition Act - Sections 3 & 4 - At time of marriage defacto complainant gave bridal presents as per his financial capacity - After marriage, appellant No. 1, his mother (appellant No. 2) and husband of sister of appellant No. 1 used to abuse her with filthy language - Soma used to inform the said incident over phone to defacto complainant and other paternal relations - Husband of Soma also used to assault her physically. Shankar used to give indecent proposal to her - Defacto complainant came to know that his daughter Soma died consuming poison. According to him Soma committed suicide failing to bear physical and mental torture on demand of dowry inflicted upon her by her husband, mother-in-law and the said Shankar Ghosh.
Finding of the Court:
It is absolutely natural and probable that if a married lady is tortured at her matrimonial home immediately after marriage, the near relatives of the lady would intervene and try to settle dispute. There is absolutely no evidence that prior to her death witnesses being PW-1, PW-2, PW-4 and PW-5 and others try to settle the alleged dispute between parties during life time of Soma. It is in the evidence that Soma was ill tempered. Therefore if at all any incident of quarrel broke out between the appellants and Soma here nature of Soma was not such that she would silently digest the allegations made against her - Prosecution failed to bring any neighbour of matrimonial home of deceased. On other hand, the defence has examined four neighbouring persons who stated on oath that relation between Netai and Soma was cordial. They never saw Netai assaulting his wife. Netai used to work in a printing press in Kolkata and he used to come to his native village at the weekend. They never saw any dispute between deceased and her matrimonial relations. Coupled with said evidence on record adduced by witnesses on behalf of defence, the learned Advocate for appellants invites attention of this Court to consider cross examination of defacto complainant where he admitted that this daughter. Soma was ill tempered - Trial judge failed to consider the above circumstances while holding the accused persons guilty for committing offence.
Result: Appeal is allowed.

JUDGMENT :

BIBEK CHAUDHURI, J.

1. The appellants being aggrieved against the judgment and order of conviction and sentence dated 8th December, 2016 passed by the learned Additional Sessions Judge, 5th Court at Barasat, North 24 Parganas in Sessions Case No. 19(12)12 corresponding to Sessions Trial No. 2(5)13 has preferred the instant appeal under the provision of Section 374 of the Code of Criminal Procedure.

2. The appellants were convicted for committing offence under Section 498A and 304B of the Indian Penal Code and they were sentenced simple imprisonment for two years and fine of Rs.1000/- for offence punishable under Section 498A of the India Penal Code (for short, IPC) and rigorous imprisonment for seven years for offence punishable under Section 304B of the Indian Penal Code.

3. On 5th August, 2011, one Nirmal Ghosh lodged a written complaint before the Officer-in-Charge Ashokenagar P.S stating, inter-alia, that marriage of his daughter Soma was solemnized with Netai Ghosh (appellant No. 1) on 5th Ashar 1417 B.S corresponding to 20th June, 2011. At the time of marriage the defacto complainant gave bridal presents as per his financial capacity. It was decided before marriage that the defacto complainant would give a gold chain to the appellants within six months of the said marriage. However, immediately after marriage, appellant No. 1, his mother Smt. Kali Ghosh (appellant No. 2) and the husband of the sister of appellant No. 1 namely, Shankar Ghosh used to abuse her with filthy language. Soma used to inform the said incident over phone to the defacto complainant and other paternal relations. The husband of Soma also used to assault her physically. Shankar used to give indecent proposal to her. On 4th August, 2011 at about 7 pm the defacto complainant came to know that his daughter Soma died consuming poison. According to him Soma committed suicide failing to bear physical and mental torture on demand of dowry inflicted upon her by her husband, mother-in-law and the said Shankar Ghosh.

4. On the basis of the said complaint, Ashokenagar P.S. Case No. 328 dated 5.8.2011 under Section 498/304B/34 of the IPC and Sections 3/4 of the Dowry Prohibition Act was registered by police and the case was taken up for investigation.

5. On completion of investigation police submitted charge sheet against the above named three accused persons. The case was committed to the learned Sessions Judge, North 24 Parganas who in turn transferred the case to the learned Additional Sessions Judge, 5th Court at Barasat for trial.

6. The learned trial judge framed charge against the accused persons under Section 498A/304B of the IPC. As the accused persons pleaded not guilty, trial of the case commenced.

7. During trial prosecution examined eight witnesses. Amongst them PW-1 is the defacto complainant and father of the deceased. PW-2 and PW-4 to PW-6 are the near relative of the deceased. PW-3 is the scribe who wrote the FIR under the dictation of the defacto complainant. PW-7 Dr. Shakti Pada Sardar is the Autopsy Surgeon. PW-8 Md. Imran Hossain, S.I. of the Police is the Investigating Officer of the case.

8. The accused persons took specific denial of the case. It is specifically stated that appellant No. 1, Netai Ghosh used to work in a printing press at Kolkata and he visited his native house only in the weekend. The relation between the deceased and her husband was very cordial and there was no occasion to treat her with cruelty within the meaning of Section 498A of the Indian Penal Code. The accused persons also took defence to the effect that deceased Soma was very ill tempered lady and she had illicit relation with the husband of his another sister. These might be reasons for her unnatural death.

9. The learned trial judge held the appellant guilty for committing offence under Section 498A and 304B of the Indian Penal Code mainly on the following grounds, viz. first, the witnesses on behalf of the prosecution cannot be disbelieved only because they a