Suresh Mondal vs The State Of West Bengal
2022 Latest Caselaw 2007 Cal

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

Present :
The Hon'ble Justice Bibek Chaudhuri

                         CRA 298 of 2016

                         Suresh Mondal
                              -Vs.-
                    The State of West Bengal

For the appellant        :      Mr. Sourav Chatterjee, Adv.,
                                Mr. Soumya Nag, Adv.,
                                Mr. Gautam Kumar Roy, Adv.

For the State            :      Mr. Binay Panda, Adv.,
                                Mrs. Puspita Saha, Adv.,

Heard & Judgment on:            18.04.2022.

Bibek Chaudhuri, J.

The appellant is the husband of deceased Dipsikha Mondal. He

was convicted and sentenced to suffer imprisonment for the offence

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

Learned Additional Sessions Judge, Fast Track, 1 st Court at Lalbagh

vide judgment and order of conviction and sentence dated

29.03.2016. The Learned Trial Judge handed down sentence of

rigorous imprisonment for two years with fine and default clause for

the offence punishable under Section 498A of the Indian Penal Code

and also rigorous imprisonment for seven years for committing

offence punishable under Section 304B of the Indian Penal Code.

It is not in dispute that the deceased had met with an unnatural

death after approximately four years of marriage at her matrimonial

home on 5th March, 2010. A Police Case was registered on 6th March,

2010 against the present appellant, his parents and brother under

Sections 498A/304B of the Indian Penal Code. It is alleged by the de

facto complainant being the mother of the deceased that deceased

was subjected to physical and mental torture during her lifetime on

demand of dowry. Failing to bear such torture either she committed

suicide by consuming poison or she was murdered. The allegation in

the FIR led the Learned Judge in Trial Court to frame charge against

the accused persons under Sections 498A/304B and alternatively

under Section 302 of the Indian Penal Code. The Learned Trial Judge

on appreciation of evidence adduced by 21 witnesses convicted the

appellant, while other accused persons were acquitted from the

charge.

Mr. Chatterjee, Learned Advocate for the appellant being ably

assisted by Mr. Nag and Mr. Roy, Learned Advocates submits at the

outset that the Learned Trial Judge failed to consider serious

infirmities in the record and had such infirmities and contradictions

being considered in their true perspective the Learned Trial Judge

ought not to have convicted the appellant. In order to substantiate

his contention, Mr. Chatterjee first takes me to the inquest report

prepared by P.W. 21, Sub-Inspector, Chandan Kumar Das. The

inquest over the dead body of the deceased was held by Chandan

Kumar Das, Sub-Inspector of Police in presence of the father, uncle,

aunt and two neighbours of the maternal home of the deceased. The

father of the deceased stated before the Inquest Officer that the

deceased failed to bear any child even after four years of marriage.

The appellant, his parents and the brother of the appellant used to

quarrel with her frequently. She was rebuked by her in-laws over

family matters on 3rd March, 2010. She was rebuked by her parents-

in-law because she went to her parents house on 27 th February, 2010

without informing anything to any of the members of her maternal

home and her husband brought her back to her matrimonial home on

3rd March, 2010. On 5th March, 2010 at about 9.00 A.M. she

consumed unknown poison. She was taken to Islampur Gramin

Hospital in the early morning on 6 th March, 2010 when the Doctor

examined and declared her dead. Thus, at the time of inquest, the

father of the deceased did not make any allegation regarding torture

upon his daughter on demand of dowry or cash money. Nothing was

also said to the Magistrate who held parallel inquest alleging demand

of dowry by the appellant or any other accused persons from the

deceased during her life time. In the written complaint which was

submitted subsequent to the holding of inquest, the de facto

complainant for the first time incorporated the story of demand of

dowry. The learned trial Judge failed to consider such aspect of the

matter. Secondly, it is submitted by Mr. Chatterjee showing the

charge framed against the accused persons that in respect of the

charge under Section 304 B of the Indian Penal Code it has not been

stated that the appellant or other accused persons used to treat the

deceased with cruelty on illegal demand of dowry.

Mr. Chatterjee next has placed the evidence adduced by the

witnesses on behalf of the prosecution during trial. P.W.1 Maya Rani

Mondal is the mother of the deceased and the de facto complainant.

In her cross-examination she admitted that her daughter was

issueless. She was medically treated due to her infertility. It is also

admitted by her that she was always anxious because she could not

give birth to a child during the span of her four years of marriage and

for this reason she used to remain depressed. P.W.2 Manik Mondal is

the uncle of the deceased. P.W.3 Sadananda Mondal is her cousin

brother and P.W.4 Ganesh Mondal is the father of the deceased. It

appears from their evidence that the deceased was allegedly tortured

by the accused persons on demand of dowry. However, none of the

witnesses could state anything about the date, time and manner as to

how the deceased was tortured and when alleged dowry was

demanded. P. W.5 Padmarani Mondal is the neighbour of the paternal

home of the deceased. Nothing material transpires from her

evidence. The evidence of P.W.7 Nabakumar Mondal is very

important. He is an independent witness and village headman

(Morol). In his examination-in-chief he stated unequivocally in clear

terms that he had talking terms with the deceased. The deceased

never disclosed him anything about the torture inflicted upon her by

the appellant or any other accused persons. However, she used to

share her agony with the witness that she failed to bear any child

even after receiving medical treatment. She used to tell that her life

became meaningless and subsequently she died suddenly. There was

no cross-examination of P.W.7. Therefore, the evidence of P.W.7

stands as to the cause of the death of Dipsikha Mondal. From the

evidence of the autopsy surgeon (P.W.14) it is found that during post

mortem examination he found partial digested food material with foul

smell in the stomach of the deceased. Therefore, he opined that the

death was probably caused due to consumption of poison and was

suicidal in nature.

It is submitted by Mr. Chatterjee that in order to establish

a charge under Section 304B of the Indian Penal Code, the following

essential ingredients must be satisfied:-

           (i)      the death of a woman must have been caused by

                    burns or bodily injury or otherwise than under

                    normal circumstances.

           (ii)     Such death must have been occurred within

                    seven years of her marriage.

           (iii)    Soon before her death, the woman must have

                    been subjected to cruelty or harassment by her

                    husband or any other relative of her husband.

           (iv)     Such cruelty or harassment must be for, or in

                    connection with, demand of dowry.

In the instant case, the prosecution hopelessly failed to prove

that the appellant demanded dowry from his wife. On the contrary,

the evidence on record is absolutely clear that the deceased went to

her paternal home on 27 th February, 2010. It is the husband of the

deceased who went to the paternal home of his wife and brought her

back to his house. The parents-in-law of the deceased rebuked her

because she went away to her paternal home without informing

anything to anybody of her matrimonial home. Such incident took

place on 3rd March, 2010. The deceased consumed poison on 5 th

March, 2010. There is no allegation that during such interregnum the

deceased was tortured on demand of dowry.

On the other hand, a parallel story has come up to the fact that

the deceased became mentally depressed because of her failure to

bear a child even after four years of her marriage and in spite of her

medical treatment. She disclosed that her life became meaningless

as she failed to bear a child. Soon thereafter she consumed poison.

Therefore, the prosecution hopelessly failed to prove the charge under

Section 304B of the Indian Penal Code. It is further submitted by Mr.

Chatterjee that the charge under Section 498A of the Indian Penal

Code was also not proved because neither in the FIR nor in the

evidence of witnesses it is proved that the victim was subjected to

cruelty within the meaning of explanation 1 and 2 of Section 498A of

the Indian Penal Code.

Learned P.P.-in-charge, on the other hand, has supported the

judgment passed by the learned trial Court.

Having heard the learned counsel for the parties and on careful

perusal of the entire evidence on record as well as the judgment

delivered by the learned trial Court I fail to understand how the

learned trial Judge came to the conclusion that the deceased was

subjected to cruelty by the appellant on demand of dowry. The

learned trial Judge held the statement made by the de facto

complainant in the written complaint as gospel truth and in support of

his observation he refers to the decision of the Hon'ble Supreme Court

in Trimukh Maroti Kirnan vs. State of Maharashtra reported in

(2006) 10 SCC 681. The aforesaid judgment states about the

practical necessity of relying on the evidence of the related witnesses

in the cases of dowry death because according to the Hon'ble

Supreme Court independent witness in a matrimonial dispute is hardly

available and no person generally comes forward to depose in favour

of his neighbour who is an accused of an offence under Section 304B

of the Indian Penal Code. The ratio laid down in the said judgment is

not at all applicable in the instant case because the independent

witness (P.W.7) as well as the de facto complainant stated that the

deceased remained depressed during her lifetime for failure to bear a

child. She thought that her life became meaningless without having a

child. Therefore, she committed suicide consuming poison.

For the reasons stated above, I am of the view that the

impugned judgment and order of conviction and sentence is liable to

be set aside.

Accordingly, the appeal is allowed on contest.

The appellant is acquitted from the charge and discharged from

the bail bond.

Let a copy of this judgment be sent down to the Court below

along with the lower Court record.

(Bibek Chaudhuri, J.)