Sudipta Sarkar vs The State Of West Bengal & Ors
2021 Latest Caselaw 1020 Cal

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                     IN THE HIGH COURT AT CALCUTTA

                 CRIMINAL APPELLATE JURISDICTION



Present:

THE HON'BLE JUSTICE JAY SENGUPTA



                            C.R.A. 301 of 2013

                              Sudipta Sarkar
                                  Versus
                      The State of West Bengal & Ors.




For the petitioner             : Mr. Krishnendu Bhattacharjee
                                Ms. Priyanka Ganguly




For the State                  : Mr. Swapan Banerjee
                                Mrs. Purnima Ghosh



Heard on                       : 07.01.2021

Judgment on                    : 05.02.2021




JAY SENGUPTA, J:


1.

This appeal is directed against a judgment and order of conviction and

sentence dated 26.03.2013 passed by the learned Additional Sessions

Judge, Fast Track Court-III, Krishnanagar, Nadia in Sessions Trial No. XI

(February), 2011, thereby convicting the present appellant on a charge

under Section 498A of the Penal Code and sentencing him to suffer simple

imprisonment for three years and to pay a fine of Rs. 5,000/-, in default to

suffer simple imprisonment for two months. It is germane to mention that

by the same order, the three other accused in this case were acquitted of all

charges and the present appellant was acquitted of the charges under

Sections 302 and 306 read with Section 34 of the Penal Code.

2. On 07.03.2010, PW 1, the elder sister of the victim deceased, lodged a

First Information Report against the present appellant and four others

under Section 302 read with Section 34 of the Penal Code. It was alleged

that the appellant and the victim were both teachers in the same school.

They fell in love and got married. After marriage the couple started residing

in the house of PW 4. The accused started inflicting mental cruelty on the

victim. They wanted the victim to leave the job of teaching at Santipur and

to join at Karimpur. On 07.03.2010 at about 1 p.m. information came that

there was a dispute in the matrimonial home of the victim. After going there,

the defacto complainant found the victim dead.

3. PW 13 held inquest on the dead body of the victim in the presence of

PWs 1, 3, 10 and another. A magisterial inquest was subsequently

conducted by PW 8 in the presence of PW 10. On 08.03.2010, PW 7

conducted the post mortem examination on the victim deceased. He cited

asphyxia following ante-mortem hanging, which was suicidal in nature, as

the cause of death. After completion of investigation, a charge-sheet was

submitted against all the accused under Section 302 read with Section 34 of

the Penal Code.

4. On 03.03.2011, charges were framed against the appellant and the

other co-accused, namely, the father-in-law, the mother-in-law, the sister-

in-law and the husband of the sister-in-law of the victim under Section

498A, Section 306 read with Section 34 and Section 302 read with Section

34 of the Penal Code. The accused pleaded not guilty and claimed to be

tried.

5. The prosecution examined as many as 13 witnesses to establish its

case. The defence of the accused was a denial of the prosecution case as

would be evident from the trend of the cross-examination and the

examination of the accused under Section 313 of the Code.

6. During trial, the elder sister of the victim/deceased deposed as PW 1.

She stated regarding the marriage of the couple. On the date of the incident

the victim's father-in-law called up the victim's mother (PW 9) stating that

some disputes were going on between the couple and that they should come.

After reaching the victim's matrimonial home, she was found dead. Several

persons assembled. The quarrels had started between the couple within a

year of the marriage. The in-laws primarily wanted the petitioner/the victim

to leave her job. The husband even physically assaulted the victim. The

victim narrated about such torture to her relatives. In fact, the in-laws had

come for a settlement. PW 1 was also a witness to the inquest by the police.

In her cross-examination, PW 1 admitted that the purported Salish was not

put down in writing. She did not narrate about the quarrels to anyone

outside. The other accused instigated the husband to commit the crimes.

She further admitted that they rarely visited the victim's house and that

they came to victim's place a few days before the incident and took away the

victim's bank passbook with them. She denied the suggestion that she had

demanded money from the victim. PW 2 was the uncle of the victim lady. He

gave out only a hearsay account. PW 3 was the landlady of the couple. She

stated that the relation between the two was generally good. However, on

one or two occasions they were found quarrelling with each other. On the

fateful day the appellant came and told that the victim was not opening in

the door of her room. In her presence the husband broke open the door and

they found the victim hanging. PW 5, a neighbour, and the husband brought

down the dead body. PW 3 was also a witness to a seizure. PW 4 was the

landlord of the couple and the husband of PW 3. He could not say anything

about the relationship between the couple. He admitted that the relatives of

both sides used to come to visit the couple. PW 5 was a local witness who

had cut the rope when the dead body was taken down. PW 6 was the

Assistant Sub-Inspector of police who recorded the First Information Report.

PW 7 was the post-mortem doctor who opined that it was a case of suicidal

hanging. PW 8 was the Magistrate who held an inquest over the dead body.

PW 9, the victim's mother, deposed for the first time in Court. She said that

the victim was not treated well by her husband and her in-laws. They

wanted the victim to shift to another school elsewhere. This led to problems,

which continued. On the date of the incident, the father-in-law of the victim

called up and stated about the continuation of a misunderstanding between

the two. In the cross-examination, PW 9 stated that his elder son was the

secretary of the school where the couple taught. There were two rooms in

the rented house of the couple. PW 9 denied any suggestion about

demanding money from her daughter, the victim. PW 10 was the brother of

the victim. He deposed that the petitioner was subjected to both mental as

well as physical torture. The prime cause for such cruelty was the in-laws'

wish that the victim should leave her job and take it up elsewhere. At one

point there was a temporary settlement. He also deposed about the

telephone call of the father-in-law on the date of occurrence. He was a

secretary of the school where the two taught. He was a witness to both the

inquests. In his cross, he admitted that he did not know the exact cause of

death of her sister. He also denied any suggestion about demand for money

from her sister by them. PW 11 was a neighbour who practically said

nothing. PW 12 was the father of the victim lady. He deposed that the

victim was treated badly by the husband and the in-laws. He also deposed

about the pressure of the accused upon the victim to seek a transfer of her

job and also about the telephone call made by the father-in-law on the

fateful date. PW 13 was the Investigating Officer of the case. However, the

cross-examination of the Investigation Officer primarily dealt with PW 10.

7. Learned Counsel appearing on behalf of the appellant submitted as

follows. While the other charge-sheeted accused were acquitted of all

charges, the present appellant was also exonerated of the charges under

Sections 302 and 306 read with Section 34 of the Penal Code. Even if one

had to invoke the presumption under Section 113B of the Evidence Act, the

same could not be done in the present case because there was no prima

facie material indicating that the accused had inflected cruelty upon the

victim any time before the incident. It was unfortunate that the victim's

death took place after about a year from the marriage of the couple.

However, some evidence should be there to haul up the accused as

responsible for such death. Coming to the charge at hand, none of the two

types of cruelty as envisaged in Section 498A of the Penal Code could be

established here. First, there was no allegation of demand for dowry.

Secondly, even on the question of infliction of cruelty that could lead a

married woman to commit suicide or cause any harm to herself, no case

could be made out. There was no independent witness supporting the

prosecution case. The most important independent witnesses who were

examined in this case were the landlord (PW 4) and the landlady (PW 3) of

the couple. However, nothing adverse to the appellant came up from their

evidence. Even the evidence of the related witnesses, namely, the elder sister

(PW 1), the mother (PW 9), the brother (PW 10) and the father (PW 12) of the

deceased had several inconsistencies and in any event, their evidence did

not clearly establish the charge under Section 498A of the Penal Code. PW 9

was examined for the first time in Court. Her evidence should be taken with

the pinch of salt. The victim's father PW 12 hardly said anything substantial

to support the prosecution. PW 1, the elder sister, remarkably improved

upon the version she gave in the FIR. PW 10, the brother, was the only

related witness who ventured to say that besides mental cruelty, there was

also physical assault inflicted by the appellant. This rather inconsistent

improvement cannot be trusted. On the whole, the allegations of mental

torture was rather vague and bereft of material particulars. The prime cause

for inflicting such cruelty was that the appellant and the in-laws purportedly

wanted the victim to leave her job as a teacher at Santipur and join a similar

job at Karimpur. There was no demand that the victim should totally leave

her job. As such, this could hardly come within the purview of cruelty within

the meaning of Section 498A of the Penal Code. On the contrary,

suggestions were given on behalf of the Defence that family members of the

victim were demanding money from the victim deceased. In fact PW 1, the

victim's elder sister, admitted that a few days before the incident she and

other family members had come to the victim and had taken away her bank

pass book. Therefore, the suicide of the victim girl could have been due to

any reason. The prosecution has failed to prove its case beyond reasonable

doubt.

8. Learned Counsel appearing on behalf of the State submitted as

follows. The evidence of related witnesses could very well be relied upon.

They make out a prima facie case against the appellant, at least, for bringing

home a conviction under Section 498A of the Penal Code. Moreover, there is

no reason as to why the close relatives of the victim deceased would lie and

falsely implicate the present petitioner and his family members.

9. I have heard the submissions of the learned counsels appearing on

behalf of the appellant and the State and have perused the petition of

appeal, the evidence and the other materials of record.

10. This is an unfortunate case where although the appellant and the

victim had fallen in love and got married, soon thereafter things came to

such a pass that the victim was compelled to commit suicide. After trial, the

appellant and the other in-laws were all exonerated from the charges under

Section 302 and 306 read with Section 34 of the Penal Code and the in-laws

were also acquitted under Section 498A read with Section 34 of the Penal

Code and the said acquittals have not been challenged.

11. Section 498A of the Penal Code entails two kinds of cruelty, one which

is for demand of dowry and the other which is of such nature that would

drive a married woman to commit suicide or to cause serious harm to

herself.

12. In the present case admittedly, there is no question of demand of

dowry.

13. The prime contention of the prosecution is that the husband and the

in-laws wanted the victim to leave her job as a teacher at Shantipur where

she was working and join a similar job at another place at Karimpur.

Although certain improved, unspecific and incoherent versions about

physical assault also came out in evidence, which, thus, cannot be trusted,

the main thrust is on this pressure upon the lady to shift her job. In this,

there is hardly any difference in the footing on which the present appellant

and the other acquitted accused stand.

14. In the absence of any convincing evidence of torture that could attract

Section 498A of the Penal Code, a mere assertion that pressure was being

applied on the victim lady to shift a job does not seem to be sufficient to

sustain a conviction under Section 498A of the Code.

15. On the contrary, suggestions were given by the defence that the

victim's own blood relations were pressurizing her to shell out money. In

fact, PW 1, the victim's sister and defacto complainant of the case admitted

in her cross-examination that they had visited the victim's place a few days

before the incident and took away the victim's bank passbook with them.

Taking away of the victim's bank passbook by her elder sister casts a further

shadow of doubt on the prosecution case.

16. The best witnesses to the incident would be PWs 3 and 4, the couple

in whose house the appellant and the victim were staying as tenants. Their

independent evidence do not support the prosecution case.

17. In view of the paucity of cogent evidence appearing against the

appellant, the lack of support from independent witnesses and the strong

suggestions posed by the defence, it would be unsafe to convict the

appellant under Section 498A of the Penal Code. Accordingly, the appeal is

allowed and the conviction and sentence ordained by the Learned Trial

Court in respect of the present appellant under Section 498A of the Penal

Code are set aside.

18. A copy of the judgment along with the Lower Court records shall be

sent down to the learned Trial Court forthwith by a Special Messenger for

information and necessary action.

19. Urgent photostat certified copies of this judgment may be delivered to

the learned Advocates for the parties, if applied for, upon compliance of all

formalities.

(Jay Sengupta, J)