Johorul Haque vs The State Of West Bengal
2021 Latest Caselaw 6395 Cal

Form J(2)       IN THE HIGH COURT AT CALCUTTA
                   Criminal Appellate Jurisdiction
                           Appellate Side

Present :
The Hon'ble Justice Bibek Chaudhuri

                           C.R.A. 79 of 2016

                          Johorul Haque
                                Vs.
                    The State of West Bengal


For the Appellant      :      Mr. Somenath Banerjee, Adv.
                              Mr. Pronojit Roy, Adv.

For the State          :      Mr. Navanil De, Adv.


Heard & Judgment on    :      17.12.2021.


Bibek Chaudhuri, J.

The question that is involved in the instant appeal is as to

whether one of the accused persons, i.e., the husband of the de facto

complainant can be convicted under Section 498A and Section 323 of

the Indian Penal Code when allegation in the FIR by the de facto

complainant/wife was physically and mentally tortured on illegal

demand of money conjointly by all the matrimonial relations including

the husband and accordingly charge was framed against all the

accused persons taking aid of Section 34 of the Indian Penal Code.

The instant appeal is directed against the judgment and order of

conviction and sentence dated 20 th January, 2016 passed by the

learned Additional Sessions Judge, Fast Track Court, Rampurhat in

Sessions Trial No. 08/February/2013 arising out of Sessions Case No.

23/2013 convicting the appellant only under Sections 498A/323 of the

Indian Penal Code and sentencing him to suffer rigorous

imprisonment for one year with fine and default clause for the offence

punishable under Section 498A of the Indian Penal Code and fine of

Rs.500/-, in default, to suffer simple imprisonment for offence

punishable under Section 323 of the Indian Penal Code.

It is not disputed that marriage of the de facto complainant was

held with the appellant on 22 nd June, 2011 as per Mohammedan rites

and ceremonies and after marriage they started to live together as

husband and wife. After few days of marriage, the accused persons

being the husband, father-in-law, mother-in-law, brother-in-law and

married sisters-in-law started treating him with cruelty in many ways

and forced her to bring a sum of Rs.2,00,000/- from her father. The

FIR discloses some undated incidents when accused persons assaulted

her pulling her hair and by fists and blows on several parts of her

body. In the meantime, she became pregnant and on 14 th July, 2012

when she was in her father's house during her pregnancy for six

months her sisters-in-law came to her paternal home and insisted her

to terminate the fetus. When she refused all the accused persons

assaulted her by fists, blows and kicks. She narrated the incident to

her father. He came to her matrimonial home on 17 th July, 2012 and

took her to her paternal home. Thereafter on 28 th August, 2012, her

father went to her matrimonial home for amicable settlement of the

dispute but all the accused persons denied to accept the de facto

complainant in their house until and unless an amount of

Rs.2,00,000/- would be paid to them. All these incidents compelled

the de facto complainant to lodge a written complaint against the

accused persons before the Officer-in-Charge, Rampurhat Police

Station.

On the basis of the said complaint Police registered Rampurhat

Police Station Case No. 211/2012 dated 30th August, 2012 against six

accused persons and took up the case for investigation. On

completion of investigation, charge-sheet was submitted against all

the accused persons under Sections 498A/323/313/511/406/34 of the

Indian Penal Code read with Section 4 of the Dowry Prohibition Act.

Since the offence under Section 313 of the Indian Penal Code is

triable by the Court of Sessions, the learned Sessions Judge, Birbhum

after commitment of the case transferred the same to the Fast Track

Court of the learned Additional Sessions Judge at Rampurhat for trial

and disposal.

During trial, prosecution examined as many as 12 witnesses.

Amongst them, the de facto complainant deposed as P.W. 1. P.W. 2,

Alamgir Sk. and P.W. 3, Kalimuddin Sk. and P.W. 5, Maidul Islam are

the neighbours of the matrimonial home of the de facto complainant

and they did not support the prosecution case. They were declared

hostile by the prosecution. P.W. 4, Nazir Hossain is the friend of the

father of the de facto complainant. P.W. 6, Md. Moniruddin Ali is the

father of the de facto complainant. P.W. 8, Rahatun Jannat Mukta is

the sister of the victim. P.W. 9, Abdul Mujib @ Bablu is the brother-

in-law of the victim. P.W. 10, Dr. Mrinal Kanti Ghosh is the scribe.

P.W. 11, Dr. Udayan Choudhuri medically treated the de facto

complainant and P.W. 12, Assistant Sub-Inspector, Mainirul Islam is

the Investigating Officer of the case.

I have carefully perused the evidence on record independently

as the first Court of appeal to ascertain the fact. It is not disputed

that the de facto complainant is the legally married wife of the

appellant. From the evidence on record it is also found that both the

de facto complainant as well as the accused are school teachers.

From the evidence of the de facto complainant (P.W. 1), it is

ascertained that she was tortured physically by all the accused

persons. Subsequently, on 15 th July, 2012 she was forced to

terminate her pregnancy by her two sisters-in-law. On 17th July,

2012, P.W. 1 informed her father over telephone about torture. She

also alleged that the accused persons snatched all gold ornaments

from P.W. 1. On 28th August, 2012, the father of the P.W. 1, i.e., P.W.

6, Moniruddin Ali came to her matrimonial home and tried to settle

the dispute but failed. Since then the de facto complainant is staying

at her paternal home. It appears from the evidence of P.W. 6,

Maniruddin Ali that her daughter (P.W. 1) was tortured by her two

sisters-in-law and younger brother-in-law, namely, Jahir Abbus. It is

also stated by him that the parents of the appellant also tortured her

physically and mentally. It is not disputed that since 28 th August,

2012 the de facto complainant has been staying at her paternal

home.

From the evidence of P.W. 7, Dr. Manas Roy who was posted as

Medical Officer at Rampurhat Sub-Divisional Hospital, it is found that

he medically treated the de facto complainant during the period from

29th May, 2012 to 15th November, 2012. On medical examination, he

found that P.W. 1 was pregnant. He advised some medicines on 15 th

November, 2012 and his prescriptions are marked exhibit 3

collectively. It is important to note here that neither the de facto

complainant complained of any torture on her abdomen nor the

Medical Officer (P.W. 7) noticed any mark of injury on her abdomen

as alleged by the de facto complainant in the FIR.

P.W. 11, Dr. Udayan Choudhuri medically examined P.W. 1 on

18th July, 2012. She visited the Doctor for medical treatment with a

history of trauma of chest and back pain. P.W. 11 medically treated

her and prescribed some medicines. The said prescription is marked

as exhibit 4. It is important to note that P.W. 1 did not state the

history of having chest and back pain to Dr. Chowdhuri (P.W.11).

There is absolutely no record that she was physically assaulted by the

accused persons.

Thus, from close scrutiny of the evidence on record this Court

finds that all the witnesses stated that all the accused persons

physically assaulted and tortured P.W. 1 on demand of a sum of

Rs.2,00,000/-. I do not find any reason as to how the learned Trial

Judge convicted the husband of the de facto complainant alone and

other accused persons were acquitted. Secondly, all the witnesses

who supported the prosecution case are close relatives of the de facto

complainant. Obviously, they are interested witnesses. It is, of

course, not the law of appreciation of evidence that the evidence of

interested witnesses shall be discarded outright. On the other hand,

the Courts are cautioned to accept the evidence of the interested and

related witnesses after close scrutiny separating the shaft from grains.

In the instant case, the witnesses who supported the

prosecution case are the relatives of the de facto complainant. I am

in agreement with the learned Trial Judge that the relatives are the

best witnesses when the incident takes place inside four corners of a

close house or room. When someone's daughter or sister is physically

tortured on illegal demand of dowry, the relatives are the best

witnesses to state about the incident that happened between the

parties.

However, I am astonished to note that when the evidence of

torture was against all the accused persons jointly how the appellant

was separated and convicted under Sections 498A/323 of the Indian

Penal Code.

There is another aspect of the matter which cannot be lost sight

of. It is needless to say that as per the explanation to Section 498A

any type of physical torture does not come within the meaning of

Section 498A of the Indian Penal Code. Explanation to Section 498A

defines cruelty in the following words: -

"Explanation - for the purpose of this Section 'cruelty' means

(a) any willful conduct which is of such a nature as is

likely to drive the woman to commit suicide or to

cause grave injury or torture to life, limb or health

(whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is

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 demand."

The case before the learned trial Court was not under

Explanation- (a) of Section 498A of the Indian Penal Code. The

prosecution tried to establish its case within the meaning of clause (b)

of Section 498A.

Therefore, the prosecution was under obligation to prove that

the accused/appellant demanded dowry and on her failure she was

harassed, assaulted and tortured. In the Court of trial charge was

framed under Section 4 of the Dowry Prohibition Act. However, the

learned trial Judge held that the said charge under Dowry Prohibition

Act failed and the accused persons were acquitted from the said

charge. When the charge under Section 4 of the Dowry Prohibition

Act fails, charge of physical harassment on illegal demand of dowry

shall automatically fail. It is not the case of the de facto complainant

that the appellant alone made illegal demand of dowry. It is the case

of the de facto complainant that the appellant and the other accused

persons jointly demanded Rs.2,00,000/- (Rupees Two Lakhs) from

her father. If the said amount was not part of dowry, charge under

Section 4 of the Dowry Prohibition Act ought not to have been framed.

As the said charge was not proved and the appellant was

acquitted from the charge under Section 4 of the Dowry Prohibition

Act, he ought to have been also acquitted under Section 498A of the

Indian Penal Code. However, there is sufficient evidence that the

accused/appellant used to cause physical hurt to the de facto

complainant on various occasions.

Considering consistent evidence on record on the charge under

Section 323 of the Indian Penal Code, conviction of the appellant

under Section 323 of the Indian Penal Code is maintained.

Accordingly, the instant appeal is partly allowed.

The order of conviction and sentence under Section 498A of the

Indian Penal Code passed against the appellant by the learned trial

Jude in Sessions Trial No 08/February/2013 set aside but the

conviction under Section 323 of the Indian Penal Code against the

appellant is affirmed. So far as the sentence is concerned, this Court

is of the view that fine amount of Rs.500/- only is not sufficient

considering the extent of offence under Section 323 of the Indian

Penal Code. Therefore, the order of sentence under Section 323 of the

Indian Penal Code is modified.

The appellant is sentenced to pay fine of Rs.1,000/- (Rupees

One Thousand) only, in default, to suffer simple imprisonment for

three months for committing offence under Section 323 of the Indian

Penal Code.

The appeal is, accordingly, disposed of on contest.

In view of the disposal of the instant appeal, the order dated

14.12.2021 be recalled.

The learned advocate for the appellant is at liberty to

communicate the recalling order dated 14.12.2021 by a letter to the

Court below.

Let a copy of this judgment be sent to the learned trial Court

along with Lower Court record forthwith.

The parties are at liberty to act on the server copy of the

judgment.

Urgent photostat certified copy of this judgment, if applied for,

be supplied to the learned advocates for the parties on usual

undertakings.

(Bibek Chaudhuri, J.)

Srimanta/Suman A.Rs. (Court)