Smt. Aparajita Chakroborty vs The State Of West Bengal & Anr
2021 Latest Caselaw 6556 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. 63 of 2020

                    Smt. Aparajita Chakroborty

                               Vs.
                 The State of West Bengal & Anr.

For the Appellant       :    Ms. Suchismita Dutta, Adv.
                             Ms. Sudipa Banerjee, Adv.

For the State           :    Mr. Bidyut Kumar Roy, Adv.
                             Ms. Rita Dutta, Adv.

Heard on                : 21.12.2021 & 22.12.2021

Judgment On             : 22.12.2021

Bibek Chaudhuri, J.

This is an appeal against acquittal filed by the de facto complainant

of G.R.Case No.199 of 2003 arising out of Jagatdal Police Station Case

N.392/03 dated 29th January, 2003.. The accused persons/Private

respondents were acquitted from the charge under Section 498A of the

Indian Penal Code. The de facto complainant being aggrieved has

assailed the said judgment and order of acquittal.

On 29th January, 2003, the de facto complainant lodged a written

complaint before the Officer-in-Charge , Jagatdal Police Station alleging,

inter alia, that her marriage was solemnized with the respondent No.2,

Anup Chakroborty according to Hindu Rites and Ceremonies. After

marriage she went to her matrimonial home to lead conjugal life with her

husband. It is alleged that her husband and mother-in-law were not

satisfied with the bridal gifts given at the time of her marriage and they

demanded a sum of Rs.20,000/- to be brought by the de facto

complainant from her parents. When the de facto complainant refused

to such proposal, her husband put pressure upon her to be engaged with

surrogacy to bear a baby of one of his friend. The de facto complainant

sternly refused such proposal. At this, the husband of the de facto

complainant and her mother-in-law started torturing her both physically

and mentally. She was not offered with proper food. On one occasion,

the mother-in-law of the de facto complainant spilt hot oil on her body

causing burn injury. Failing to bear such torture she returned to her

paternal home on 21st October, 2001. However, after view days, the

husband of the de facto complainant went to her paternal home and

bring her back to his house with the assurance that she would not be

tortured in future. But subsequently also the de facto complainant was

subjected to physical and mental torture and she was compelled to leave

her matrimonial home on 9th June, 2002. The husband and the mother-

in-law of the de facto complainant did not even allow her to take her

minor children with her. On the basis of the said complaint, police

registered a case under Section 498A of the Indian Penal Code and took

up the case for investigation. On completion of investigation, charge-

sheet was submitted against the husband and mother-in-law of the de

facto complainant and both of them face trial. Charge was framed

against them under Section 498A of the Indian Penal Code. The mother-

in-law of the de facto complainant died during the pendency of the case

and the case was filed as against the accused Alpana Chakroborty by the

Trial Court.

The husband of the de facto complainant face trial. On completion

of trial, the learned Trial Judge recorded an order of acquittal in favour of

respondent No.2, Anup Chakroborty. Hence the appeal.

It is pertinent to mention here that in order to bring home the

charge against the respondent No.2, prosecution examined only 4

witnesses. Amongst them, the de facto complainant is the wife of the

respondent No.2 and P.W.2, Raghunath Mukherjee is the father of the

de facto complainant. P.W.3, Biswanath Chakraborty is a resident of

Serampore in the district of Hooghly. P.W.4, Tarak Das is a resident of

Jagatdal in the district of North 24-Parganas.

In course of evidence, P.W.1 has proved her written complaint,

which was marked as exhibit.1. The signature of the de facto

complainant on the written complaint is marked as exhibit.1/1. In her

evidence, it was stated by P.W.1 on oath that after marriage her

husband and mother-in-law were dissatisfied with the bridal present and

demanded a further sum of Rs.20,000/- in cash. When she refused to

bring the said sum of Rs.20,000/-, her husband proposed her to be a

surrogate mother of one of his friend, when she refused, the accused

persons inflicted mental and physical torture upon her. It is further

stated by the de facto complainant in her evidence that once her

mother-in-law put fire on her wearing apparel causing burn injuries on

her hands. She also spilt hot oil on her hand to inflict injury. She was

never medically treated where she was ill. Immediately after such

statement she stated that she underwent treatment at SSKM Hospital

when she received burn injury on her person. Failing to bear such

torture, the de facto complainant returned to her paternal home on 21 st

October, 2001. On 21st April, 2002 her husband took her back to his

house on assurance that he would live with her and their children

separately at a rented house. But the respondent No.2 failed to keep up

his promise. He continued torturing the de facto complainant physically

and mentally. Finally on 9 th June, 2002, the de facto complainant left

her matrimonial home and took shelter permanently at her paternal

home.

P.W.2, Raghunath Mukherjee being the father of the de facto

complainant has corroborated the evidence of P.W.1.

P.W.3 Biswanath Chakraborty and P.W.4, Tarak Das failed to state

anything in respect of the relation between the parties in their evidence.

The learned Trial Judge acquitted respondent No.2 on the ground

that P.W.2 failed to corroborate the evidence of P.W.1 on the point that

she was allegedly pressurized for surrogacy by her husband for a sum of

Rs.20,000/-. It is also held by the learned Magistrate that except oral

evidence, P.W.1 failed to produce any documentary evidence with regard

to torture upon her by respondent No.2. P.W.1 admitted that she was

medically treated at SSKM Hospital after she received burn injury but the

said injury report and treatment sheets were not produced during trial.

Thus, the learned Trial Judge held that the prosecution failed to bring

home the charge against the accused/respondent No.2 and accordingly,

he was acquitted from the charge.

The Hon'ble Supreme Court in catena of decision was pleased to

frame necessary guidelines to be followed by the Court of appeal in

respect of an appeal against acquittal. In this respect, decision of the

Hon'ble Supreme Court in V.Sejappa Vs. State reported in (2017) 3

SCC (Cri) 699 may be referred to. The guidelines framed by the

Supreme Court are as hereunder:-

"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 has based its conclusion are

reasonable and plausible, the High Court should not disturbed the

order of acquittal if another view is possible. Merely because the

Appellate Court on re-appreciation and re-evaluation of the

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

judgment of acquittal is not justified if the view taken by Trial

Court is a possible view. The well-settled principle is that if two

views are possible, the Appellate Court should not interfere with

the acquittal by the lower Court and that only where the material

on record leads to a inescapable conclusion of guilt of the accused,

the judgment of acquittal will call for interference by the appellate

court.

Explanation of Section 498A of the Indian Penal Code defines

"Cruelty". The explanation runs thus :-

"498A. Husband or relative of husband of a woman

subjecting her to cruelty.- Whoever, being the husband or the

relative of the husband of a woman, subjects such woman to

cruelty shall be punished with imprisonment for a term which may

extend to three years and shall also be liable to fine.

Explanation.-For the purpose of this section, "Cruelty"

means-

(a) any wilful conduct which is of such a nature as is likely to

drive the woman to commit suicide or to cause grave injury or danger 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 such demand.]"

Thus, all physical and mental torture does not amount to cruelty

within the meaning of Section 498A of the Indian Penal Code. Only the

wilful conduct of the accused which is of such nature as is likely to drive

the woman to commit suicide or to cause grave injury or danger to life,

limb or health of the woman amounts to cruelty within the meaning of

Section 498A of the Indian Penal Code. In the instant case, though

P.W.1 stated that she was subjected to physical torture by the

respondent No.2, she failed to state any date of such torture or any

medical document to prove the extent of torture to come to a specific

finding by the Court with regard to the nature of torture which may likely

to drive her to commit suicide or cause grave injury to life, limb or

health of the woman. Omnibus allegation is not sufficient for proving a

case of cruelty.

Similarly, the de facto complainant/appellant failed to prove to the

satisfaction of the Court that the respondent demanded a sum of

Rs.20,000/- and when she refused to bring the said sum from her

paternal home, he put pressure upon her to perform the act of surrogate

for a sum of Rs.20,000/-. The de facto complainant did not lodge any

complain or diary in the local police station after she left her matrimonial

home in the year 2001 and again to went back to her matrimonial home

on the basis of assurance of her husband in the month of April, 2002.

Considering all such aspect of the matter, the evidence on record is not

sufficient to take an alternative view against the respondent No.2 and

this Court does not find sufficient ground to change the order of acquittal

to the order of conviction.

Accordingly, the instant appeal fails.

The appeal be dismissed on contest, however, without costs.

Let a copy of this judgment be sent to the lower court below for

information and necessary action.

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

given to the learned Advocates for the parties on usual undertakings.

(Bibek Chaudhuri, J.)

Mithun/ A.R.(Ct).