Calcutta High Court (Appellete Side)
Raju Das vs The State Of West Bengal on 22 December, 2022
Form No.J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present:
The Hon'ble Justice Tirthankar Ghosh
C.R.A.(SB) 53 of 2022
Raju Das
versus
The State of West Bengal
For the Appellant : Mr. Uday Sankar Chattopadhyay,
Mr. Suman Sankar Chattopadhyay,
Mr. Santanu Maji,
Ms. Snigdha Saha,
Mr. Debdipto Banerjee,
Ms. Trisha Rakshit,
Ms. Rajashree Tah,
Mr. Gourab Das.
For the State : Mr. S.. G. Mukherjee, Ld. P.P.,
Ms. Faria Hossain,
Ms. Baisali Basu.
For the Appellant/High : Mr. Saryati Datta.
Court Legal Services Authority
Heard On : 20.12.2022 & 22.12.2022.
Judgement On : 22.12.2022.
Tirthankar Ghosh, J. :
The present appeal has been preferred against the judgment and
order of conviction dated 08.03.2022 passed by the learned Additional
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Sessions Judge, 1st Court, Katwa in Sessions Trial No.20/2011 arising
out of Sessions Case No.185 of 2009 wherein the learned trial court was
pleased to convict the appellant and sentenced him to suffer sentence as
follows:
(i) Rigorous imprisonment for seven years for the offence
punishable under Section 307 of the Indian Penal Code and
fine of Rs.5,000/- I.d. SI for six months.
(ii) Rigorous imprisonment for seven years for the offence
punishable under Section 326 of the Indian Penal Code and
fine of Rs.5,000/- I.d. SI for six months.
(iii) Rigorous imprisonment for three years for the offence
punishable under Section 498A of the Indian Penal Code
and fine of Rs.3,000/- I.d. SI for three months.
The genesis of the present case arose out of a complaint lodged by
Abbas Ali Sk. with the Officer-in-Charge of Katwa Police Station wherein
he alleged that his daughter Mallika Das (Khatun) married one Raju Das
under the Special Marriage Act after they had a relationship over a
period of time. At the time of marriage, the complainant gave gold
ornaments along with some articles as gifts. After marriage, the
complainant's son-in-law and daughter stayed at a rented house along
with Sefali Das, mother-in-law of his daughter. After 4/5 days of
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marriage, the complainant's son-in-law and his mother started
demanding a sum of Rs.20,000/- from his daughter and stated torturing
her both physically and mentally. It has been alleged that the
complainant's daughter was not allowed to eat or wear properly and she
was assaulted. The appellant used to drink frequently and after
returning home when the same was objected by his daughter, she was
assaulted. On several occasions, mother-in-law used to assault the
complainant's daughter by catching the tuft of hair and told her to
commit suicide so that she could get her son married to another girl. The
complainant's daughter expecting that things would normalise, tolerated
such torture. However, on 10.04.2007, the accused persons again
demanded cash which was informed by the complainant's daughter over
phone. The complainant asked his daughter to collect the cash from his
house. When she reported the same to the appellant, he got furious and
started assaulting his daughter by fists and blows with an intention to
kill her. She was assaulted with a stick and hot water was splashed over
her. In order to save herself the complainant's daughter managed to
escape and went to the roof of the rented house where the appellant also
followed and at the time of hot altercation between them, the appellant
pushed his daughter from the roof. The said incident was witnessed by
the neighbours and owner of the house who rushed to the spot and
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seeing severe nature of injury sustained by her, they admitted her to
Katwa Hospital and informed the complainant over phone. The
complainant and his wife thereafter rushed to the hospital. They got her
released from the said hospital and admitted her at Kalna Hospital for
treatment. The complainant alleges that his daughter is in critical
condition and is under treatment.
Pursuant to the aforesaid complaint, Katwa Police Station Case
No.115 of 2007 dated 27.04.2007 was registered for investigation under
Sections 498A/326/307 of the Indian Penal Code and the Investigating
Agency on conclusion of investigation initially submitted their first
charge-sheet on 23.06.2007 under Section 498A of the Indian Penal
Code. Subsequently, after further investigation, second charge-sheet
was also filed before the jurisdictional court on or about 11.08.2008
under Sections 498A/307/326 of the Indian Penal Code.
Records reflect that the appellant was arrested on 24 th May, 2007
and he was released on bail on 29th June, 2007. The case being
sessions triable was committed to the court of sessions and records were
subsequently made over to the learned Additional Sessions Judge, 1 st
Court, Katwa wherein on 25.02.2011, charges were framed under
Sections 326/498A/307 of the Indian Penal Code.
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The prosecution in order to prove its case relied upon 10
witnesses which included Abbas Ali Sk., father of the victim as P.W. 1;
P.W.2, Mallika Das (Khatoon), victim; P.W.3, Rekha Mondal, neighbour
of the rented accommodation where the couple stayed; P.W.4 Swati
Mitra Pal, the Marriage Registration Officer at Kalna; P.W. 5, Jhuma
Ghosh, land lady of the rented accommodation; P.W. 6, Sanchita Das,
neighbour of P.W.1; P.W.7, Tapasi Bibi, the mother of the victim; P.W.8
Dr. P.N. Mitra, who treated at Katwa Hospital on 11.04.2007; P.W.9, Dr.
Biswadip Mukhopadhyay, who treated the victim on 11.04.2007 and
P.W.10, Dr. Chandra Sekhar Kundu, who treated the victim on
09.08.2007
.
The prosecution also relied upon the following documents:
Exhibit 1, the complaint of Abbas Ali Sk;
Exhibit 2, the seizure list dated 21.05.2007;
Exhibit 3, Marriage Registration Certificate;
Exhibit 4, the record of patient of Katwa Sub Divisional Hospital;
Exhibit 5, the prescription dated 11.04.2007 of Kalna Sub-
Divisional Hospital;
Exhibit 6, the opinion of the radiologist, Dr. Biswadip
Mukhopadhyay (P.W.9);
Exhibit 7, Dr. Chandra Sekhar Kundu dated 09.08.2007.
P.W. 1 Abbas Ali Sk. in his deposition before the court reiterated
his contention which was made in the letter of complaint relating to
demand of dowry and stated that on 10.04.2007 his daughter called him
and demanded such amount while weeping, craving for an amount of
Rs.20,000/-, when the complainant was compelled to ask her to come
on the next day along with her husband to take the money. He deposed
on the following day at about 8.30 a.m. over phone he learnt that his
daughter has been admitted to Katwa SD Hospital and he immediately
rushed to the said hospital where he found his daughter in a senseless
condition with bleeding injuries at her mouth and other injuries of her
back, spinal chord, both legs and other parts of the body. The
complainant stated that since they were residents of Kalna and were not
thickly connected at Katwa, he took her release from the Katwa SD
Hospital and took the victim and got her admitted at Kalna Hospital.
After about four days, she was referred to Burdwan MCH, as it was
difficult for him to continue the treatment at Burdwan, he got his
daughter treated by private doctor at Kalna. The complainant stated that
later he came to know from his daughter that on 10.04.2007 in the
evening his daughter was assaulted by Raju Das, appellant with piece of
wood and on 11.04.2007 morning hot water was thrown at her and she
was chased by the appellant and to escape from such assault she went
to the roof and the appellant also chased her there and she was kicked
by the appellant for which she fell down from the roof and received the
injuries. He also identified his signature in the seizure list relating to the
treatment-sheets/prescriptions of his daughter and the photocopy of the
Marriage Registration Certificate. He identified his signature in the
seizure list which was dated 21.05.2007 and the same was marked as
Exhibit 2/1. He also identified the original certified copy of the Marriage
Registration Certificate of his daughter and the appellant, which was
admitted in evidence and marked as Exhibit 3.
P.W. 2 is the victim. She stated that they got married under the
Special Marriage Act on 06.02.2007 and introduced the appellant as a
student of Bengal Institute of Technology, Katwa. She deposed that at
the rented accommodation where they stayed after marriage, her
mother-in-law also used to reside. The witness deposed that after 5/6
days of marriage, the accused persons demanded Rs.20,000/- and
abused her by saying that if she is unable to bring such money, she
should commit suicide and her mother-in-law stated that she would opt
for getting her son married second time and obtain the hefty sum of
money. This witness represented that he would convey such information
to his father and on 10/04/2017. Her husband and mother-in-law again
insisted her to bring money from her father which was conveyed to him
over phone and her father asked her to come at this residence at Kalna
with her husband to collect the money. On 11.04.2007 in the morning
when she represented the same to her husband that they would go to
her father's house for collecting the money, her husband become furious
and started assaulting her. The witness stated that firstly her husband
inflicted a blow on her left eye when she lost her sight, thereafter he
picked up a split wood and started assaulting with the same, he
thereafter poured hot water on her legs when she sustained burn injury
and being afraid she ran to the first floor roof in order to save herself
from the clutches of her husband, however, her husband followed her
there and shouting that the said day would be the last day of her life.
He pushed her from the roof, when she fell down on the road and lost
her senses. The complainant thereafter deposed that she was picked up
by local people and admitted at Katwa hospital. After she regained her
senses at Katwa hospital, she found her parents and neighbours of
Kalna there and her legs, spinal chord and rib cages of her chest were
broken. She stated that she was unable to walk properly. She also
deposed that on the same date she was shifted to Kalna hospital by her
parents and treated at a nursing home on the following day. After four or
five days, she was advised to shift at Burdwan Medical College and
Hospital, but her father having no connection at Burdwan, she was
treated at her home with the aid of private doctors namely, Dr. Anupama
Kar and Dr. A. K. Das of Kalna. She was also treated by another doctor,
namely, Dr. Chandrasekhar Kundu.
P.W. 3, namely Rekha Mondal is the neighbour of the rented
accommodation where the couple stayed along with the mother of the
appellant. The witness stated that about nine years ago there was a
tenant residing at the house of Jhuma Ghosh, P.W.5. However, the
tenant denied of any knowledge relating to the incident.
P.W. 4 is Swati Mitra Pal, a Marriage Registration Officer
having her office at Kalna. She deposed that she issued the marriage
certificate, identified the same as Exhibit. 3.
P.W. 5 is Jhuma Ghosh, landlady of the rented
accommodation of the house situated at Katwa, Kabirajpara. The
witness deposed that a portion of her house was rented out about nine
years back to the appellant and P.W.2 who were rooted at Kalna.
According to her, they resided for about 1 to 2 months and one day
when she had been to her relative's house, she heard that PW 2 fell
down and got herself injured. She added that she was unaware as to
how PW.2 fell down, but, subsequently the couple left the tenancy.
P.W. 6 is Sanchita Das who is a neighbour of P.W.1. He deposed
that the appellant was married to Mallika Das (P.W,2) and after marriage
they started residing at Katwa, Kabirajpara. She deposed that she heard
from the mother of Mallika that the appellant assaulted her and pushed
her down from the roof at Katwa, Kabirajpara, the victim as such, was
admitted at Kalna Hospital, where she visited her and found that her two
arms and waist were fractured (it has been recorded that subsequently
the witness stated that the fracture injury was there on her both legs
and waist). The witness opined that the victim is not totally fit and she
cannot move or walk properly.
P.W. 7 is Tapasi Bibi who is the mother of the victim who deposed
in the same manner and tune as P.W.1.
P.W.8 is Dr. P. N. Mitra, an orthopaedic surgeon attached to
Katwa hospital was identified the last part of the treatment-sheet which
was marked as Exhibit. 5.
P.W.9 is Dr. Biswadip Mukhopadhyay, a Radiologist who was
attached to Kalna SD hospital at Wecre Pathological Laboratory. He
deposed that on that day he examined the X-ray report of Mallika Das
and on perusal of the same he detected fracture of both calcaneum and
tip of lateral malleous on right leg and also detected fracture partial
compression and fracture of L-1 vertebra. He identified the test report
which was marked as Exhibit. 6.
P.W. 10 is Dr. Chandra Sekhar Kundu, a surgeon who treated
the victim on 09.08.2007 in respect of a fracture. He identified his
prescription which was marked as Exhibit. 7.
Mr. Uday Shankar Chattopadhaya, learned advocate appearing for
the appellant submitted that the prosecution has failed to prove its case
beyond any reasonable doubt and as such, the accused/appellant is
entitled to be acquitted of the charges. In order to substantiate his
argument, learned advocate submitted that the incident happened on
10.04.2007/11.04.2007, but the written complaint was registered on
27.04.2007, as such there was a delay of 17 days which was without any
reasonable explanation. Learned advocate for the appellant added that
the victim did not mention the name of the appellant before the first
attending doctor and also did not mention the name of the appellant as
assailant before any of the doctors. It was contended that there was a
mental pressure upon the P.W.2/victim due to inter-religion marriage.
Furthermore, he stated that the parents took the victim/P.W.2
on personal bond out of Katwa SD Hospital to Kalna SD Hospital on the
very date of the incident, although her condition deteriorated and after
4/5 days in the said Kalna SD Hospital when she was advised to be
shifted to Burdwan Medical College and Hospital, surprisingly the
parents brought her back home and got her treated through private
doctors.
It was further contended that the victim in cross-examination
stated that the roof of the tenanted premises had no railing and she also
deposed that before marriage she did not divulge about her relationship
to other relations. This, according to the learned advocate, reflects the
attitude of the relations and their understanding regarding inter-religion
marriage.
Learned advocate drew the attention of this court to the
documents and submitted that some of the vital documents such as
formal FIR, sketch map, medical documents were not admitted in
evidence and the non-examination of the Investigating Officer as such
has prejudiced the appellant. He added that inconsistency in the
evidence of PW-2 could have been cross-checked, had the investigating
officer was present in court and the defence had the opportunity of
cross-examining him. Reference was made to the evidence of PW-7
regarding the hearsay nature of evidence wherein, according to the
learned advocate for the appellant, it was deposed that couple was living
peacefully so the issue relating to torture did not arise.
It has also been stated that the mother-in-law viz., Shefali Das
has been acquitted from the case and on grounds of parity, the appellant
must be acquitted from the charges under Sections 326/307/498A of
the Indian Penal Code.
Mr. Saryati Dutta, learned Advocate appearing for the
appellant/Legal Aid submitted that a cumulative appreciation of the
evidence of the witnesses fails to make out any case against the
appellant and the judgment calls for interference of this Court.
Ms. Faria Hossain, learned advocate appearing for the State
submitted that there is a consistency in the version of the prosecution
witnesses particularly, PW-1, PW-2 and PW-7. According to the learned
advocate, the statement of the injured victim in this case assumes
importance and her evidence as such cannot be thrown away on mere
technical issues. Attention of the Court was drawn to the date of
marriage which was 06.02.2007 and the date of registration of the FIR
which is 27.04.2007. Learned advocate for the State contends that the
evidence of the victim incorporates chain of circumstances which are
demand of dowry, informing the same to her father, her father having
consented to part with such amount only when she along with her
husband comes to collect the same, husband after hearing the same
started assaulting her with fist and blows on her eyes with a split wood
on different parts of body, splashing hot water upon her and when she
tried to escape by going to the roof, she being followed/chased by her
husband and pushed at the time of hot altercation the resultant of
which are the fractures which she suffered. Learned advocate draws the
attention of the Court to the medical documents which have been
marked as Exhibits 5, 6 and 7 and points out that the lady has suffered
in the region of ankle, spinal chord and the waist. Given the
circumstances, according to the learned advocate for the State, there is
no scope for interference in the order of conviction and sentence passed
by the learned trial court and the same should be affirmed.
I have considered the submissions advanced by the learned
advocates appearing for both the parties. I have also taken into
consideration the nature of the incident which occurred in close
proximity of two months after the marriage. The three witnesses who are
vital in this case are PW-1, PW-2 and PW-7 being the
complainant/father of the victim, victim and the mother of the victim
respectively. The subject-matter of demand of Rs.20,000/- has been
corroborated by each and other, so far as the factum of assault is
concerned, the same has also been corroborated by them.
An issue has been raised by Mr. Chattopadhyay, learned advocate
for the appellant regarding the factum of the sketch map not being
produced in this case in evidence which could have added to the issue
whether the victim accidentally fell down or she was pushed by the
husband from the roof. It has also been pointed out that the medical
evidence which has been produced before this Court is of Orthopaedic
Surgeon which relates to treatment of the legs, arms, waist and spinal
cord. The judgment under challenge according to the State do not call
for any interference.
The facts which the prosecution could not bring on record is
regarding sustaining injury at the eye or burn because of the hot water
being splashed. The formal FIR of the case has not been exhibited.
However, it remains that it is nobody's case that no case was registered
at Katwa Police Station, consequently the issue relating to non-
examination of the Investigating Officer as to how much the same has
prejudiced, the defence is to be assessed in this particular case. The two
authorities of the Hon'ble Supreme Court in this point are relevant.
On this issue Paragraph 23 of the decision of the Hon'ble
Supreme Court in Behari Prasad & Ors. Vs. State of Bihar reported in
(1996) 2 SCC 317 would be relevant for the purpose of this case which is
set out hereunder:
"23. It, however, appears to us that the entire case diary should not
have been allowed to be exhibited by the learned Additional
Sessions Judge. In the facts of the case, it appears to us that the
involvement of the accused in committing the murder has been
clearly established by the evidences of the eyewitnesses. Such
evidences are in conformity with the case made out in FIR and also
with the medical evidence. Hence, for non-examination of
Investigating Officer, the prosecution case should not fail. We may
also indicate here that it will not be correct to contend that if an
Investigating Officer is not examined in a case, such case should
fail on the ground that the accused were deprived of the opportunity
to effectively cross-examine the witnesses for the prosecution and to
bring out contradictions in their statements before the police. A case
of prejudice likely to be suffered by an accused must depend on the
facts of the case and no universal strait-jacket formula should be
laid down that non-examination of Investigating Officer per se
vitiates a criminal trial. These appeals, therefore, fail and are
dismissed. The appellants who have been released on bail should
be taken into custody to serve out the sentence."
In the judgement of the Hon'ble Supreme Court in Rajesh Yadav
Vs. State of U.P. reported in 2022 SCC OnLine SC 150, the Hon'ble
Supreme Court after relying upon Behari Prasad (supra) and Lahu
Kamlakar Patil Vs. State of Maharashtra reported in (2013) 6 SCC 417
was pleased to explain the circumstances under which the non-
examination of the Investigating Officer becomes vital. The Hon'ble
Supreme Court relied upon paragraph 18 of Lahu Kamlakar Patil
(supra) which is set out hereunder :
"18. Keeping in view the aforesaid position of law, the testimony of PW 1
has to be appreciated. He has admitted his signature in the FIR but has
given the excuse that it was taken on a blank paper. The same could have
been clarified by the investigating officer, but for some reason, the
investigating officer has not been examined by the prosecution. It is an
accepted principle that non-examination of the investigating officer is not
fatal to the prosecution case. In Behari Prasad v. State of Bihar [(1996) 2
SCC 317 : 1996 SCC (Cri) 271], this Court has stated that non-
examination of the investigating officer is not fatal to the prosecution case,
especially, when no prejudice is likely to be suffered by the accused.
In Bahadur Naik v. State of Bihar [(2000) 9 SCC 153 : 2000 SCC (Cri)
1186], it has been opined that when no material contradictions have been
brought out, then non-examination of the investigating officer as a witness
for the prosecution is of no consequence and under such circumstances, no
prejudice is caused to the accused. It is worthy to note that neither the
trial Judge nor the High Court has delved into the issue of non-
examination of the investigating officer. On a perusal of the entire material
brought on record, we find that no explanation has been offered. The
present case is one where we are inclined to think so especially when the
informant has stated that the signature was taken while he was in a
drunken state, the panch witness had turned hostile and some of the
evidence adduced in the court did not find place in the statement recorded
under Section 161 of the Code. Thus, this Court in Arvind Singh v. State of
Bihar, [(2001) 6 SCC 407 : 2001 SCC (Cri) 1148], Rattanlal v. State of
J&K [(2007) 13 SCC 18 : (2009) 2 SCC (Cri) 349] and Ravishwar
Manjhi v. State of Jharkhand [(2008) 16 SCC 561 : (2010) 4 SCC (Cri) 50],
has explained certain circumstances where the examination of
investigating officer becomes vital. We are disposed to think that the
present case is one where the investigating officer should have been
examined and his non-examination creates a lacuna in the case of the
prosecution."
I have assessed the cross-examination of PW-1, PW-2 and PW-7
and I do not find that there have been contradictions which were
confronted regarding previous statements made by them which could
have been confronted to the Investigating Officer had he been present as
a witness in this case. That leaves this Court to decide on the issue
regarding the topography of the area particularly, the rented house of
the roof which happens to be a major issue relating to the offence. It is
not possible to ascertain from the evidence as to whether the victim PW-
2 was in a conscious state to narrate regarding the incident to the doctor
when she was initially admitted for treatment. There is a version of the
prosecution witnesses including the victim that she lost her senses and
regained the same at the hospital. Having considered the medical
documents which include Exhibits 4, 5, 6 and 7, I find that Exhibit-4 is
a record of Katwa S.D. Hospital wherein no injury has been recorded
except at the bottom, the personal bond by which the victim was
released from the said hospital. So far as the Exhibits 5, 6 and 7 are
concerned, they do incorporate the phrase 'fall from 10ft. height',
thereafter description of the injuries, the medicines prescribed and the
follow up treatment to be made.
Having regard to the said medical evidence, I am of the opinion
that it would be unwise to hold that the injuries complained of were in
the nature of offence committed under Section 307 of the Indian Penal
Code or for that matter under Section 326 of the Indian Penal Code.
However, the injuries are grievous in nature and the evidence has been
conducted in a very casual manner by the prosecution.
Considering the statement of the victim, I am of the opinion that
the evidence in this case which has been disclosed is in the nature of
offences under Section 498A of the Indian Penal Code and Section 325 of
the Indian Penal Code. The appellant is accordingly convicted under
Section 498A of the Indian Penal Code and Section 325 of the Indian
Penal Code.
Having regard to the age of the appellant and that at the relevant
period of time, he was a student, I direct that the sentence so imposed
upon the appellant is modified as follows :-
(i) The appellant is sentenced to suffer rigorous imprisonment
for one year for the offence under Section 498A of the
Indian Penal Code and to pay fine of Rs.5000/-, in default,
S.I. for three months.
(ii) The appellant is sentenced to suffer rigorous imprisonment
for two years for the offence under Section 325 of the
Indian Penal Code and to pay fine of Rs.5000/-, in default,
S.I. for three months.
Both the sentences would run concurrently. Any term of
imprisonment or detention suffered by the appellant in course of
investigation, enquiry, trial and appeal would be set off under Section
428 of the Code of Criminal Procedure.
With the aforesaid observations, the appeal being CRA (SB) 53 of
2022 is partly allowed.
Department is directed to send back the lower court records
immediately and communicate this order to the learned trial court.
All parties shall act on the server copy of this judgement duly
downloaded from the official website of this Court.
Urgent photostat certified copy of this judgement, if applied for,
be given to the parties upon compliance with all requisite formalities.
(Tirthankar Ghosh, J.)
