Sunil Ghosh vs State Of West Bengal
2021 Latest Caselaw 5876 Cal

             IN THE HIGH COURT AT CALCUTTA
             CRIMINAL APPELLATE JURISDICTION
                         APPELLATE SIDE

Present:
The Hon'ble Justice Joymalya Bagchi
             And
The Hon'ble Justice Bivas Pattanayak



                              C.R.A. 224 of 2016
                                     with
                               CRAN 3 of 2021


                                 Sunil Ghosh
                                     -Vs-
                             State of West Bengal



For the Appellant :           Mr. Moinak Bakshi, Adv.



For the State :               Mr. Neguive Ahmed, learned APP
                              Mrs. Trina Mitra, Adv.



Heard on :                    30.11.2021


Judgment on:                  30.11.2021


Joymalya Bagchi, J. :-

     The appeal is directed against the judgment and order dated

18.02.2016

and 19.02.2016 passed by the learned Additional Sessions

Judge, 3rd Court, Bankura in Sessions Trial No. 1(2)2005 arising out of

Sessions Case No. 21(12)2004 convicting the appellant for commission of

offence punishable under Sections 498A/304B of the Indian Penal Code

and sentencing him to suffer rigorous imprisonment for ten years. No

separate sentence was awarded on the charge of Section 498A of the Indian

Penal Code.

Prosecution case was set into motion on the basis of a written

complaint lodged by P.W. 4, Chandra Deyasi alleging that his daughter was

married to the appellant on 28th shrabon i.e. 14.08.2002. At the time of

marriage Rs. 1 lakh cash and 10 bhori of gold was given as dowry. His

daughter was physically and mentally tortured for more dowry. Whenever

his daughter came to his house, she complained of such torture. On

10.9.2002 at 10 O'clock in the morning he was informed that his daughter

was lying dead at her in-law's house. He lodged complaint against the

appellant and other in laws resulting in Borjora P.S case no. 59 of 2002

dated 13.9.2002 under section 498A/304B/34 IPC. In conclusion of

investigation, charge-sheet was submitted. The case was committed to the

Court of Sessions and transferred to the Court of learned Additional

District & Sessions Judge, 3rd court, Bankura for trial and disposal.

Charges were framed against the appellant and other accused persons

under Sections 498A/304B/34 IPC. They pleaded not guilty and claimed to

be tried. In the course of trial prosecution examined 12 witnesses and

exhibited a number of documents. Post mortem report was exhibited on

admission under section 294 Cr.P.C. as Ext. 7. Defence of the appellant

was one of innocence and false implication. In conclusion of trial, learned

trial judge by judgement and order dated 18.02.2016/19.02.2016 convicted

and sentenced the appellant as aforesaid. However, by the self-same

judgment and order, other accused were acquitted of the charges levelled

against them.

Mr. Bakshi, learned counsel appearing for the appellant argues that

the ingredients of the offence punishable under section 304B IPC has not

been established. No allegation of dowry is reflected in the inquest report

prepared by the Executive Magistrate PW 3 as well as I.O, PW 12. Moreover,

the evidence of witnesses with regard to the manner and circumstance,

relating to demand of dowry are contradictory to one and another.

It is also argued that the cause of death is inconclusive as per the

post mortem report. Hence, the appellant is entitled to an order of

acquittal.

On the other hand, Mr. Ahmed learned counsel appearing for the

State submits that the evidence on record shows that the housewife

suffered unnatural death within one month of her marriage. He contends

that the victim during her short matrimonial life had come to her parental

home twice and complained of torture by the appellant over demand of a

motor cycle. Inquest report shows that the neck of the victim was swollen

and post mortem report indicates presence of violet coloured foul smelling

liquid in her stomach. These circumstances clearly show that the deceased

suffered unnatural death. No explanation is forthcoming from the end of

the appellant who was present at the time when the victim died with regard

to nature and circumstance of her death to rebut such inference. Hence,

the prosecution case is proved beyond doubt.

Appellant has been called upon to answer a charge under section

498A/304B Indian Penal Code. Ingredients of the offence under section 304

B IPC may be summarized as follows:

(1) The housewife suffered unnatural death within seven years of

marriage

(2) Soon before her death, she was subjected to harassment by her

husband and in-laws on demands of dowry.

In the event the aforesaid circumstances are established, shall be

presumed that the husband and the in-laws of the housewife has

committed dowry death punishable under section 304B IPC.

Hence, it is imperative for the prosecutor to establish that the

housewife had suffered unnatural death within seven years of marriage.

Admittedly, housewife died at the matrimonial house within one month

of her marriage. However, it is argued that cause of death has not been

established. Post mortem doctor was not examined and the Post mortem

report was exhibited on admission under section 294 Cr.P.C. Although

the cause of death in the post mortem is inconclusive, the contents of

the stomach as in the said report shows presence of violet coloured foul

smelling liquid. Moreover, inquest was held over the dead body of the

deceased by the Investigating Officer PW 12 and BDO, PW 3. Inquest

report prepared by the investigating officer is exhibited as Ext. 3/2 and

it is noted therein that the throat of the deceased appear to be swollen

and bluish marks were found on her teeth and gum.

To prove a charge under section 304 B IPC, the prosecution is not

called upon to establish whether the death is homicidal or suicidal. To

bring home the charge, it is sufficient for the prosecution to show that

the death was an unnatural one. Notings in the inquest report (Exhibit

3) that there was swelling in the throat of the deceased as well as the

bluish marks in her teeth and gum and presence of violet coloured

pungent smelling liquid in the stomach of the deceased as per Post

mortem report (Exhibit 7) gives rise to an irresistible conclusion that the

death of the housewife was nothing but unnatural. Appellant was in the

house at the time when the deceased died. However, he has not come

out with any alternate explanation to the death which appears to be

unnatural from the aforesaid facts and circumstance proved by the

prosecutor. Thus, I hold that the prosecution has been able to establish

that the death of the victim occurred within seven years of marriage and

was an unnatural one.

The other ingredient of the offence is, namely, harassment of the

housewife for or in connection with dowry soon before her death.

Matrimonial life of the housewife was for merely a month. During her

short matrimonial life, she had come to the residence of PW 1 on

'Astomongala' day and stayed there for two days. Thereafter, she again

came on another occasion about a week prior to her death.

P.W 4 is the father of the deceased. He stated at the time of marriage,

he gave one lakh of rupees and other household articles to the appellant.

After marriage, she was subjected to mental and physical torture on further

demand of money. His daughter narrated such incident to him. She

committed suicide by consuming poison on 24th Vadra 1409 BS. He stated

that he lodged complaint after three days as he was feeling unwell. He

proved his signature on the complaint. In cross examination, he stated that

on the day of 'Astomongala' his daughter had come to his house and stayed

for two days. Thereafter, she again came to her house perhaps on 18th

Vadra.

PWs 5 and 6 are the uncles of the deceased. PW 5 also spoke of

torture upon the deceased over demand of money. He claimed that the

appellant had throttled her and thereafter administered poison upon the

deceased. He signed the inquest report. In cross examination he, however,

claimed that the entire dowry had not been paid at the time of marriage.

PW 6 is a reported witnessed and heard the incident from the father

of the victim. PWs 2, 8 and 9 are the cousins of the deceased. PW 8 deposed

the accused persons did not behave well with the deceased over demand of

money. He stated that he had visited the house of the appellant twice and

the appellant had demanded money from the deceased for purchasing

motor cycle.

PW 9 corroborated the versions of PWs 4 and 8 and stated that the

appellant used to assault the deceased over demand of money.

PW 11, mother of the deceased has corroborated the evidence of

torture upon her daughter over further demand of money.

It is argued that the case of demand of dowry is an afterthought and

is not reflected in the inquest report.

It is further submitted that there is contradiction between the

evidence of PW 4 and 5 with regard to manner in which the dowry demands

are made.

I am unable to accept the aforesaid submissions made on behalf of

the appellant. Inquest is prepared for the purpose of noting the injuries on

the deceased and the apparent cause of death. Failure to record demand of

dowry in the inquest report, therefore, cannot be a ground to discount the

prosecution case of dowry demand which has been consistently voiced by

all witnesses in court and reflected in the FIR. Delay of three days in

lodging the FIR is also well appreciated. Father of the housewife (PW 4) was

shocked upon hearing the news of the untimely death of his daughter. He

was so deep in sorrow that he could not even make himself go to the house

of the appellant and be present at the time of inquest itself. Hence, such a

plea is most natural cannot be held a ruse. There are some discrepancies

between the evidence of PW 5 who claimed entire sum of rupees one lakh

had not been paid at the time of marriage and the disputes arose with

regard to the payment of the remainder and PW 4 and others who stated

inspite of payment of Rupees one lakh at the time of marriage further

demands were made. PW 5 is an uncle of the deceased and resided in

separate mess. He may not be fully aware whether entire sum was paid or

not. Moreover, such minor variation would not affect the consistent case of

the prosecution as transpiring from other witnesses that in spite of

payment of Rupees one lakh further demand in the form of motor cycle was

made by the appellant. It is trite law demands made even after the marriage

by the husband or in-laws would be construed to be a dowry demand if

failure to meet such demand results in the unnatural death of the

housewife as has been held in Rajinder Singh vs. State of Punjab 1. In

view of such fact, I am of the opinion that the demand of dowry and the

torture on the housewife over such demand have been established beyond

doubt. The last ingredient of the offence, i.e., torture on harassment over

dowry was soon before the death has also been established. Evidence of PW

4 proves about a week prior to the incident the victim had come to his

residence and complained of torture over dowry. It is trite law the

expression 'soon before' the death in section 304B IPC is to be construed to

mean a live link between the torture meted out to the housewife over

demand of dowry and her ultimate end.

From the evidence on record it appears the victim suffered untimely

death within a month of her marriage and barely a week prior to her demise

she had come to the house of PW 4 and complained of torture over

demands of dowry. Hence, I have no hesitation to hold that the aforesaid

ingredient of the offence under section 304B IPC has also been proved.

Evidence on record has established the ingredients of the offence

under section 498 A IPC also.

(2015) 6 SCC 477

In view of the aforesaid discussion, I uphold the convictions recorded

upon the appellant.

Coming to the issue of sentence, I note although the death is an

unnatural one, the cause of death, that is whether the death is suicidal or

homicidal has not been proved beyond reasonable doubt. In view of such

fact and balancing the other aggravating and incriminating circumstances,

I am of the opinion justice would be served in modifying the sentence

imposed on the appellant and he is directed to suffer rigorous

imprisonment for 7 (seven) years and pay a fine of Rs.5,000/-, in default to

suffer rigorous imprisonment for six months more.

The period of detention suffered by appellant during investigation,

enquiry or trial shall be set off under Section 428 of the Code of Criminal

Procedure.

The appeal is accordingly disposed of.

In view of disposal of the appeal connected application being CRAN 3

of 2021 is also disposed of.

Copy of the judgment along with LCR be sent down to the trial court

at once for necessary compliance.

Urgent Photostat Certified copy of this order, if applied for, be

supplied expeditiously after complying with all necessary legal formalities.

I agree.

(Bivas Pattanayak, J.)                                      (Joymalya Bagchi, J.)


tkm/sdas/PA