Smt. Mahua Kumar Nee Lahiri vs The State Of West Bengal & Anr
2021 Latest Caselaw 4424 Cal

                IN THE HIGH COURT AT CALCUTTA
               CRIMINAL APPELLATE JURISDICTION
                         APPELLATE SIDE


The Hon'ble JUSTICE BIBEK CHAUDHURI


                             CRA 697 of 2013


                       Smt. Mahua Kumar Nee Lahiri
                                  -Versus-
                      The State of West Bengal & Anr.

     For the appellant:        Mr. Sudipto Maitra,
                               Mr. Subhasish Panchal,
                               Mr. Vijay Verma.

     For the State:            Mr. T.K Ghosh,
                               Mr. Arindam Sen.


     Amicus Curiae:            Mr. Dipanjan Dutt


Heard on: July 27, 2021
Judgment on: August 27, 2021.

BIBEK CHAUDHURI, J. : -


1.   This is an appeal against the judgment and order of acquittal

passed by the learned Judicial Magistrate, 4th Court at Howrah in GR

Case No.1280 of 2008 (T.R 698 of 2008) on 1st July, 2013.

2.   The appellant lodged a complaint on 17th May, 2008 before the

Officer-in-Charge, Howrah Police Station stating, inter alia, that her

marriage was solemnised with respondent No.2, Sanjay Kumar on 22nd

May, 2004. In the wedlock between them, she gave birth to a male child

on 27th June, 2005. Since their marriage, her husband Sanjay and his

parents-in-law used to torture her both physically and mentally. Failing to

bear such torture, the defacto complainant returned to her paternal home

on 7th March, 2005 to save her life. Her husband also threatened her

saying that he would kidnap their only child. The petitioner did not lodge

any complaint in the local PS immediately after such incident considering

the social reputation and respect of the family. She was also afraid that

her husband would stop payment of Rs.3000/- per month for

maintenance of their child, had she filed any complaint under Section

498A of the Indian Penal Code.

3. On the basis of the said complaint police registered P.S Case No.41

of 2008 dated 17th May, 2008 under Section 498A of the Indian Penal

Code. On completion of investigation, charge sheet was submitted against

accused Sanjay Kumar in the court of the learned Chief Judicial

Magistrate, Howrah. The said case was transferred to the 4th Court of the

learned Judicial Magistrate, Howrah for trial. During trial prosecution

examined six witnesses. Some documents were also exhibited which I

propose to refer subsequently in the body of judgment.

4. On conclusion of trial the accused was examined by trial court

under Section 313 of the Code of Criminal Procedure where he pleaded

his innocence, but he did not adduce any evidence in support of his

defence.

5. The learned trial judge on conclusion of trial passed the impugned

judgment acquitting the respondent No.2 under Section 248(1) of the

Code of Criminal Procedure.

6. The defacto complainant has challenged the said judgment of

acquittal in the instant appeal.

7. When the appeal came up for hearing, the appellant failed to take

step. Notice was sent to the appellant. She received administrative notice

but did not turn up to contest the instant appeal. Therefore, Mr. Dipanjan

Dutt, learned Advocate was appointed by this Court as Amicus Curiae

from the panel of the High Court Legal Service Committee to conduct the

case on behalf of the appellant.

8. I have heard the learned Amicus Curiae, learned Advocate for the

respondent and the learned Advocate for the State. I have also perused

the impugned judgment passed by the learned Judicial Magistrate.

9. During trial of the case the defacto complainant deposed as PW1. In

her evidence she stated that her mother-in-law refused to accept her as

the wife of her son. She demanded five vories of golden neck chain from

the paternal home of PW1. It is also stated by her that on the date of

reception of the marriage, her husband did not invite any of her family

members. Her husband demanded Rs.4000/- from her. He also stated to

her that he is habitual drunkard and he has illicit relation with one

Anamitra Bose. It is also stated by PW1 that once she saw her husband in

a compromising position with a neighbouring leady. Subsequently, she

became pregnant. During her pregnancy, she was not offered with proper

food. Her husband assaulted her brutally. The appellant became ill due to

such torture. She was admitted to T.L Jaiswal Hospital. However, she did

not lodge any complaint against her husband and mother-in-law with the

hope that the things will change and she will be able to lead a happy

conjugal life. However, even after birth of her child her husband

continued torture upon her. Finally, she lodged the complaint before the

police. The said complaint was marked as Exhibit-1 in the trial court.

10. It is ascertained from the evidence of PW2, Smt. Tapasi

Chakraborty who is maternal aunt of defacto complainant that she heard

from PW1 that her husband used to treat her with cruelty and tortured

her both physically and mentally. It is also stated by her that she saw the

marks of injury on the person of the defacto complainant.

11. PW3, Tarit Chakraborty is the maternal uncle of the defacto

complainant. He stated in his evidence that since date of 'fulsazza' Mahua

was subjected to torture by her husband and parents-in-law.

12. PW4, Ashok Kumar Maity a neighour of the maternal home of the

defacto complainant was declared hostile by the prosecution.

13. PW5, Bani Lahiri is the mother of the defacto complainant. She

stated on oath that since after marriage, the appellant was subject to

torture by her husband and parents-in-law. They assaulted the appellant

in her presence. They did not provide her proper and sufficient food.

When the appellant was pregnant, she was tortured in such a manner

that the child in the womb would have died. She was medically treated at

T.L Jaiswal Hospital, Howrah.

14. PW6 is the Investigating Officer of this case.

15. Mr. Dipanjan Dutt, learned Amicus Curiae with his usual fairness

submits that there are lot of material contradictions in the evidence of the

PW1. Marriage of the PW1 was solemnized with the respondent No.2 on

22nd May, 2004. She left her matrimonial home on 7th March, 2005.

Subsequently, on 27th June, 2005 she gave birth to a male child. The

written complaint was lodged on 17th May, 2008, i.e. after a lapse of about

3 years from the date of her departure from her matrimonial home. It is

submitted by Mr. Dutt that the appellant failed to prove the ingredients of

"cruelty" within the meaning of Section 498A of the Indian Penal Code.

She failed to prove any willful conduct of the accused/respondent No.2

which is of such nature as is likely to drive her to commit suicide or to

cause grave injury or danger of life, limb or health. Though it is stated by

the appellant in her evidence she stated that her mother-in-law and

subsequently her husband demanded gold neck chain and cash money as

dowry, but said fact was not alleged in the FIR. Therefore, the second

ingredient of "cruelty" that the defacto complainant was harassed with a

view to coercing her or any person related to her to meet any unlawful

demand for any property or valuable security or is on account of failure

by her or any person related to her to meet such demand.

16. However, it is submitted by Mr. Dutt, learned Amicus Curiae that

from the evidence of PW1 and other witnesses it is proved that PW1 was

physically tortured by her husband. She was assaulted by the respondent

No.2. In view of such specific evidence on record, he invites this Court to

hold the respondent No.2 guilty for committing offence under Section 323

of the Indian Penal Code. It is also submitted by Mr. Dutt that though no

charge was framed under Section 323 of the Indian Penal Code against

the accused/respondent No.2, this Court can very well hold him guilty for

committing offence under Section 323 of the Indian Penal Code in view of

the provision under Section 222 of the Code of Criminal Procedure.

17. Mr. Sudipto Maitra, learned Advocate for the respondent No.2, on

the other hand submits that the scope of appeal from a judgment of

acquittal is different from the scope of appeal from a judgment of

conviction and sentence. In case of an appeal against acquittal, if the

evaluation of the evidence and the findings recorded by the trial court do

not suffer from any illegality or perversity and the grounds on which the

trial court based its conclusion are reasonable and possible, the High

Court should not disturb the order of acquittal, if another view is possible.

Merely because the appellate court on reappreciation and reevaluation of

the evidence is inclined to take a different view, interference with the

judgment of acquittal is not justified, if the view taken by the trial court is

a positive view. In other words, if two views are possible, the appellate

court should not interfere with the order of acquittal passed by the trial

court and that only where the materials on record lead to an inescapable

conclusion of guilt of the accused, the judgment of acquittal will call for

interference by the appellate court. With the above introduction it is

submitted by Mr. Maitra that marriage of appellant and respondent No.2

was solemnized on 22nd May, 2004. After marriage they lived their

conjugal life happily and peacefully. The said fact will be available on

record from the letters written by the appellant to her husband

immediately after marriage. All those letters were exhibited on admission

by the defacto complainant. Even after seven months of marriage the

relation between the appellant and the respondent No.2 was very loving,

happy and cordial. This is revealed from the letter dated 20th December,

2004 written by the appellant to respondent No.2. Therefore, the

allegation made by the defacto complainant in her FIR that she was

physically and mentally tortured by her husband and parents-in-law after

few days of marriage proves to be incorrect from the letters written by the

appellant herself to her husband.

18. It is further submitted by Mr.Maitra, learned Counsel for the

respondent No.2 that after the birth of the child, when the appellant

started living at her paternal home, respondent No.2 used to spend all

expenditure for the maintenance of their child. During trial the

respondent No.2 has produced series of documents containing list of

articles which the appellant used to spend for rearing of their child and

the respondent No.2 used to spend those articles to the appellant.

Therefore, there is absolutely no evidence to the effect that the appellant

was treated with cruelty within the meaning of Section 498A of the Indian

Penal Code.

19. For the reasons stated above, it is submitted by the learned

Advocate for the respondent No.2 that there is absolutely no reason to

interfere with the judgment as passed by the trial court in GR Case

No.1280 of 2008 and the order of acquittal passed in favour of the

respondent No.2.

20. Having heard the learned Amicus Curiae for the appellant and the

learned Advocate for the respondent No.2 and on careful consideration of

the materials of lower court record as well as the impugned judgment it is

to be recorded at the outset following the decision of the Hon'ble Supreme

Court in the case of Chandrappa vs. State of Karnataka reported in

2007 4 SCC 415 that the following principles are to be borne in mind in

dealing with an appeal against the acquittal.

"(i) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;

(ii) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;

(iii) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.

(iv) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under

the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(v) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

21. Bearing the above principle in mind let me now consider, scan and

appreciate the evidence adduced on behalf of the appellant during trial of

the case.

22. It is found from the First Information Report that marriage of the

appellant was solemnised with the respondent No.2 on 22nd May 2004. In

the said wedlock, the appellant gave birth to a male child on 27th June,

2005. It was alleged in the FIR that the husband and parents-in-law of

the appellant physically assaulted her and failing to bear such torture she

returned to her mother on 7th March, 2005 to save her life. Since 7th

March, 2005 she has been residing at her paternal home. But the FIR was

lodged on 17th May, 2008, i.e., after lapse of about three years from her

date of departure from her paternal home.

23. It is needless to say that the FIR is not an encyclopedia. It is

sufficient for Criminal Administration of Justice to set in motion if the FIR

discloses a cognizable offence. FIR is not a substantive piece of evidence,

but it can only be used for corroboration and contradiction of the

prosecution story. Gists of the FIR have already been recorded. However,

from the evidence of the appellant who deposed in the trial court as PW1

it is ascertained that from the very beginning she started to exaggerate

her case against the respondent No.2. As for example, in her evidence

she stated that her mother-in-law did not like her after her marriage and

refused to accept her as her daughter-in-law. She demanded five vories of

gold neck chain. Even on the date of her marriage reception the relatives

of her paternal home were not invited. It is also stated on oath that her

husband is a habitual drunker and he is having illicit relation with

another lady. There is no semblance of such allegation in the FIR filed by

the appellant before the police.

24. Other witnesses are the maternal uncle, maternal aunt and the

mother of the appellant. It is ascertained from their evidence that they

also exaggerated the story of physical and mental torture allegedly

inflicted upon the appellant by respondent No.2. Only one independent

witness, namely, Ashok Kumar Maity was examined during trial as PW4.

He did not support the prosecution case and was declared hostile.

25. Surprisingly enough, the evidence of the appellant as PW1 cannot

be reconciled with her conduct at the relevant point of time. The appellant

alleged that after her marriage which was performed on 22nd May, 2004

her mother-in-law could not accept her as her daughter-in-law. After few

days of marriage her husband also started to torture her both physically

and mentally. He used to make illegal demand of money from the

appellant to be brought from the paternal home. But the appellant wrote

series of letters to her husband where she described her as her only love

and all such letters depicted happy and cordial relation between the

appellant and respondent No.2. According to FIR she left her maternal

home on 7th March, 2005. But even on 20th December, 2004 she wrote a

letter describing how much she used to love her husband. It is not

disputed that after the birth of the child the appellant used to send list of

articles required for the baby and the respondent No.2 used to procure

the said articles and send those to the appellant. Even when the child of

the appellant and respondent No.2 was three years old, the appellant sent

measurement of feet of their child to the respondent No.2 requesting him

to purchase a pair of shoes for their child.

26. The appellant failed to prove that the respondent No.2 treated her

with cruelty, to mean any willful conduct which is of such nature as is

likely to drive her to commit suicide or to grave injury of danger to life

limb or health (whether mental or physical). The appellant also failed to

prove that she was harassed on unlawful demand for any property or

valuable security by her husband or any of her matrimonial relations.

27. In view of such circumstances, this Court finds that the learned

trial court on careful and appropriate consideration and appreciation of

evidence rightly passed the order of acquittal in favour of respondent No.2

and there is no scope of interference against the impugned judgment and

order of acquittal.

28. Accordingly the instant appeal fails.

29. The judgment and order of acquittal passed by the learned Judicial

Magistrate, 4th Court at Howrah in GR Case No.1280 of 2008 (T.R 698 of

2008) is affirmed.

30. The appeal accordingly is dismissed on contest, however without

cost.

31. Let a copy of this judgment along with the lower court record be

sent to the learned Court below forthwith.

(Bibek Chaudhuri, J.)