Biswanath Das vs State Of West Bengal & Anr
2022 Latest Caselaw 623 Cal

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

Present :
The Hon'ble Justice Bibek Chaudhuri

                       IA No.:CRAN/3/2020
                                 in
                         C.R.A. 65 of 2016

                          Biswanath Das
                               Vs.
                    State of West Bengal & Anr.


For the Appellant            :      Mr. Debapratim Guha, Adv.,
                                    Mrs. Anasuya Sinha, Adv.


For the State                :      Mr. S. G. Mukherjee, Ld. P.P.,
                                    Mr. Z. N. Khan, Adv.,
                                    Mr. N. P. Agarwala, Adv.,
                                    Mr. Ashok Dey, Adv.,
                                    Mrs. S. Patel, Adv.


Heard on                     :      16.02.2022, 17.02.2022

Judgment on                  :      17.02.2022.


Bibek Chaudhuri, J.

Judicial precedents does not follow the facts, on the contrary, facts

follow the judicial precedents. Now a days, a trend is visible that the

Judicial Officers have the tendency to set out number of judgments of

the higher Courts before appreciating and scanning the factual evidence

and try to fit in the facts with the precedent. This trend is not only

dangerous, but also leads a person to take a wrong decision under

particular facts and circumstances of a case.

I like to elaborate the above-noted prologue subsequently while

discussing the judgment delivered by the Learned Judge in the Trial

Court.

In the instant case, married daughter of the de facto complainant

died at her matrimonial home after about six years of marriage. On 26 th

April, 2000, the father of the deceased lodged a complaint before the

Learned S.D.J.M., Berhampore alleging, inter alia, that marriage of his

daughter, Jyotsna was solemnized with the appellant, named Biswanath

Das about six years before the death of the said Jyotsna. It is also

alleged by the complainant that at the time of marriage as per the

demand of the accused he gave a sum of Rs.30,000/- in cash and gold

ornaments weighing about 2.5 'bhoris' to the bride and bridegroom.

However, after marriage Jyotsna was subjected to torture by her

husband and other matrimonial relations on illegal demand of a sum of

Rs. 20,000/-. On 8th April, 2000, she was severely assaulted by the

appellant and failing to bear such torture she consumed poison. Jyotsna

was taken to hospital by her matrimonial relations. The de facto

complainant got the said information from the son of his another

daughter, named Sandhya (P.W. 2) whose marriage was also solemnized

in the same village. Immediately, he rushed to Beldanga hospital and

came to know that his daughter, Jyotsna was referred to Berhampore

hospital. He went to Berhampore and found his daughter lying in

senseless condition with bruise mark on her right jaw and her face

swelling. On 12th April, 2000, Jyotsna expired.

The Learned S.D.J.M., Berhampore sent the written complaint to

Beldanga Police Station with a direction to the Officer-in-Charge of the

said Police Station to treat the same as FIR and start investigation of the

case. From the endorsement made by the Officer-in-Charge of Beldanga

Police Station, it is ascertained that the said complaint was received by

the Police Station on 10 th May, 2000 and on the basis of the said

complaint a case under Sections 498A/304B/34 of the Indian Penal Code

was registered against the appellant and other matrimonial relations of

the deceased.

Investigation of the case culminated in filing charge-sheet against

the appellant and other matrimonial relations of the deceased. Since the

offence under Section 304B of the Indian Penal Code is triable

exclusively by the Court of Sessions, the case was committed to the

Learned Sessions Judge. Subsequently, it was transferred to the 4 th

Court of the Learned Additional Sessions Judge, Berhampore at

Murshidabad for trial and disposal.

The Learned Trial Judge framed charge against six accused

persons under Sections 498A/304B of the Indian Penal Code though in

the charge it was stated that the accused persons in pursuance of their

common intention committed the above offence, but no charge under

Section 34 of the Indian Penal Code was added with the charge under

Section 498A or 304B of the Indian Penal Code.

It is pertinent to mention at the outset that during trial accused

no. 1, Rajendra Das and accused no. 2, Saraswati Das had expired and

the case against the above-named two accused persons was filed

forever.

Mrs. Anasuya Sinha, Learned Advocate for the appellant at the

outset draws my attention about the inconsistency in the charge framed

by the Learned Court below. In the charge, it is specifically mentioned

that the appellant along with other accused persons who acquitted by

the Learned Court below after trial on or about the 8 th day of April, 2000

subjected Jyotsna Das to cruelty by torturing her both physically and

mentally with common intention of each other. It is submitted by Mrs.

Sinha that the charge refers to a solitary incident of 8 th April, 2000

though in the written complaint, it was stated that the deceased was

subjected to torture after few days of her marriage. It is submitted by

the Learned Advocate for the appellant that under Section 464 of the

Code of Criminal Procedure the effect of omission or error in the charge

may not be fatal for the prosecution and in certain cases such omission

or error will not vitiate the trial. However, the purpose of framing

charge is to make the accused persons aware about the offence

specifically what they have committed in order to defend themselves. In

the instant case, if the charge is concerned it will clearly reveal that the

accused persons were charged for defending an incident that incident of

cruelty that took place on 8th day of April, 2000.

In view of such circumstances, the error in the charge is incurable

and it adversely affected the entire prosecution case.

It is further pointed out by the learned Counsel for the appellant

that as per prosecution case and the evidence adduced by the witnesses

on behalf of the prosecution, deceased Jyotsna Das was subjected to

torture long 6 years before her unnatural death at her matrimonial home

by the accused persons on demand of Rs.20,000/-. She asked her

father to give her a sum of Rs.20,000/- to satisfy the demand of her

husband and other matrimonial relations but the de facto complainant

failed to satisfy their demand due to sheer poverty. As a result, the

deceased was subjected to torture and ultimately, failing to bear such

torture, consumed poison on 8th April, 2000.

It is urged by the learned Advocate for the appellant that during

the long 6 years of marital life of Jyotsna, the de facto complainant did

not lodge any complaint before any authority. P.W.2, Sandhya Rani Das,

who is the elder sister of the deceased stated in her cross-examination

that occasionally she lodged the compliant against the appellant and

other matrimonial relations about such torture to the Pradhan and

members of Local Panchayat and also to the villagers orally. But she

failed to disclose the names of the persons to whom she informed the

incident of torture by the appellant and other matrimonial relations of

Jyotsna during her lifetime. In order to prove the said claim, the

prosecution failed to examine any member of local Panchayat or any

neighbour around the matrimonial home of the deceased to prove the

said fact.

It is further urged by Ms. Sinha, learned Advocate for the appellant

that P.W.3, Kush Das who is the son of P.W.2, Sandhya Rani Das stated

in her evidence that his maternal aunt Jyotsna was tortured by the

accused persons over further demand of money. He claimed himself to

be an eyewitness of an incident when the appellant was assaulting

Jyotsna under the influence of liquor. It is also stated by P.W.3 that

since Jyotsna was assaulted by the appellant, she had to terminate her

life by consuming poison at her matrimonial home.

The learned Advocate for the appellant next draws my attention to

the evidence of P.W.9, Arup Roy Chowdhury, who is the Investigating

Officer of the case. In his cross-examination, he stated that Sandhya

Rani did not state to him that Biswanath demanded Rs.20,000/- and her

father could not meet such demand. He also did not state to the

Investigating Officer that on 8 th April, 2000 in the afternoon, before

taking poison Jyotsna was beaten mercilessly by Biswanath.

Learned Advocate for the appellant next draws my attention to the

evidence of P.W.5, Sasti Das, who is the elder brother of the deceased.

It is rightly pointed out by the learned Counsel for the appellant that

P.W.5 has introduced a new case in his evidence. According to him,

Jyotsna did not consume poison on 8 th April, 2000. On the contrary,

Biswanath forcibly administered poison in her mouth. Thus, the

deceased was forced to consume poison as a result of which she became

unconscious and subsequently died in the hospital. He also stated that

Jyotsna disclosed the said fact in the hospital. The said evidence is

absolutely inconsistent with the prosecution case because according to

the prosecution, Jyotsna remained unconscious after consuming poison

till her death and she never regained her sense. The learned Advocate

for the appellant has raised a pertinent question that P.W.5 claimed that

he was present at the time of inquest over the dead body of his sister.

Surprisingly enough, the said P.W.5 did not make any statement before

S.I. Ajoy Sankar Roy (P.W.7) who held inquest in connection with

Berhampore Police Station U.D. Case No. 199 of 2000 dated 13 th April,

2000. The carbon copy of the Inquest Report was marked as Exbt.2 at

the instance of P.W.7. In the said inquest report, it is recorded by P.W.7

that during initial inquiry, it was ascertained that the deceased

consumed poison on 9th April, 2000 at about 7 a.m. and she was

admitted to Berhampore District Hospital where she died on 12 th April,

2000 at 2 p.m. It is also recorded by P.W.7 that the death of the

deceased was not natural. It is submitted by the learned Advocate for

the appellant that when the Inquest Officer found that a lady died

unnaturally, the concerned police station ought to have started a suo

moto case to unearth the truth behind the death of the deceased.

However, the police authority did not discharge their official duty in the

instant case. There is also no record as to whether the enquiry report of

the said U.D. case was tagged with the case diary of the instant case.

It is submitted by the learned Advocate for the appellant that the

provision of Section 304B of the Indian Penal Code is to be read in

conjunction with 113B of the Evidence Act. Section 113B is the rule of

presumption in dowry death. In order to find out whether a person

caused dowry death of a woman, two conditions are necessarily to be

proved:-

1. soon before her death such woman had been subjected to

cruelty or harassment by such person; and

2. the cruelty of her husband was for or in connection with any

demand for dowry.

It is submitted by the learned Advocate for the appellant that the

prosecution has failed to prove that soon before her death, Jyotsna was

subjected to cruelty by the appellant. The allegation of demand of

dowry has also not been proved. It is further submitted by her that the

prosecution is under obligation to prove that the woman had met with an

unnatural death within 7 years of her marriage. From the report of the

Autopsy Surgeon (Ext.4), it is ascertained that he did not find any

external or internal injury on the dead body of the deceased. He clearly

opined that on examination he found everything over the dead body was

normal. If a person consume poison, there must be poisonous fluid with

pungent smell in the stomach. The kidneys must be congested. These

two findings can be made clinically by the Autopsy Surgeon on

intersection. When the Autopsy Surgeon neither found pungent smell in

the stomach or congested kidneys, the death of the deceased cannot be

presumed to be unnatural due to poisoning. The Autopsy Surgeon

reserved his final opinion as to the cause of death till the availability of

Chemical Examiner's report from Forensic Science Laboratory. The said

report has not come during trial of the case. Under such circumstances,

the learned Trial Judge committed gross error in holding that the

deceased had met with an unnatural death by poisoning.

It is accordingly submitted by the learned Counsel for the appellant

that the prosecution failed to prove the charge against the appellant and

the instant appeal should be allowed.

Mrs. Subhasree Patel, Learned Public Prosecutor-in-Charge, on the

other hand, submits that all the witnesses on behalf of the prosecution

deposed on the same tune that the victim was tortured by the appellant

and other matrimonial relations on illegal demand of money. P.W. 2,

Sandhya Rani Das is the elder sister of the deceased. Her matrimonial

home is situated in the same village where the deceased used to stay

with the appellant. She also corroborated the fact that the deceased

was subjected to torture by the appellant and other matrimonial

relations on illegal demand of Rs.20,000/-. The said fact was narrated

to P.W. 2 by the deceased herself. The son of P.W. 2, namely, Kush Das

was examined as P.W. 3 during trial of the case. In his evidence, he

claimed that he himself had seen the appellant assaulting his wife,

Jyotsna under the influence of liquor. He also stated that at that point of

time he was a minor and could not resist the appellant from assaulting

his maternal aunt. P.W. 3 further stated that Jyotsna terminated her life

failing to bear torture inflicted upon her by the appellant. The evidence

of P.W. 3 withstood rigorous cross-examination on behalf of the defence

but his evidence could not be shaken during cross-examination.

It is further pointed out by the Learned Public Prosecutor-in-

Charge that there are certain contradictions in the form of exaggeration

of the incident and omission of certain fact. From the cross-examination

of the Investigating Officer, it is ascertained that the witnesses did not

tell certain facts which they stated on oath in Court. However, according

to the Learned Public Prosecutor-in-Charge, the said contradictions are

minor in nature and notwithstanding the said contradictions if the

evidence on record is taken up to its entirety, it would be found that the

appellant was guilty for committing offence under Sections 498A/304B of

the Indian Penal Code. Therefore, it is submitted by the Learned

Advocate for the respondent-State that there is no ground to spill ink

over the impugned judgment and order of conviction and sentence.

Therefore, it is submitted by her that the instant appeal ought to be

dismissed.

In support of her contention on the point of error in charge Ms.

Sinha refers to a decision of the Division Bench of this Court in the

case of Anil Kumar Choulia and Ors. versus State of West

Bengal reported in 2003 (3) CHN 276. In the said report it was

pointed out by the learned advocate for the appellant that the charge

under Section 498A/34 of the Indian Penal Code referred a solitary

incident dated 17th February, 1986 with regard to the charge under

Section 306 of the Indian Penal Code, the charge referred to an

incident dated 18th February, 1986 on which date the accused persons

were charged for committing offence of abatement of suicide.

It was argued on behalf of the appellant that in view of the

charge having been framed stating specific dates, viz., 17 th February,

1986 and 18th February, 1986, the evidence given by the prosecution

as regards previous torture etc. should not be looked into and the

prosecution case cannot travel on the incidence allegedly took place

beyond the said two dates.

The Division Bench of this Court while accepting the contention

of the learned advocate for the appellant observed in paragraph 30 as

hereunder:-

"30. In the instant case, the prosecution alleged that the cruelty

was perpetrated on the victim on 17.02.86 and abetment of suicide

was also given at the same time as a result of which the victim

committed suicide on 18.02.86. There is no ambiguity in the charge

as framed in this case under section 498A/34 and section 306 of the

Indian Penal Code. It appears that placing reliance on the evidence of

P.W.8 such a charge was framed and it was never disclosed that the

alleged cruelty was perpetrated on the victim since 2-3 months after

the marriage. So the entire case as made out by the prosecution

centres round the alleged incident of 17.02.86 and 18.02.86 and

hence, it is rightly argued by Mr. Basu that there was no reason on

the part of the defence to cross-examine the witnesses on the facts

that were not included in the charge. True it is that police papers

were handed over to the accused persons. But at the same time it is

to be kept in mind that while framing the charge it was made clear to

the accused persons that they were being tried on the basis of the

incidents of 17.02.86 and 18.02.86. So acceptance of evidence

beyond the said period actually misled the accused persons and the

Trial Court relying on such evidence came to a finding that resulted

into failure of justice. There is nothing in the evidence of P.W.8, nor

in the materials collected by the prosecution and produced before the

Court during the trial to show or indicate that any of the accused

persons gave any inducement to the victim for committing suicide."

It is needless to say that all forms of cruelty and / physical and

mental torture upon a married woman by her husband and other

matrimonial relations do not constitute an offence under Section 498A

of the Indian Penal Code. The meaning of cruelty envisaged in Section

498A is stated in explanation (a) and (b) of the said section.

Explanation (a) of Section 498A speaks of 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 of the woman.

Clause (b) states about 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

demand.

It is important to note that Section 498A does not state about

unlawful demand of dowry. Any story of unlawful demand for any

property or valuable security and consequent harassment thereof

amounts to cruelty within the meaning of Section 498A.

It is pertinent to note here that as per the prosecution case the

deceased was subjected to torture on illegal demand of money since

after marriage. I am in conformity with the learned counsel for the

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

Code framed against the accused persons does not speak about the

happening of such incident of torture since after marriage till 8 th April,

2000. Therefore, the learned trial Court erred in law in accepting the

evidence with regard to cruelty beyond 8 th April, 2000. It is surprising

to note that according to the father and other relatives of the

deceased, Jyotsna was subjected to physical torture and mental

cruelty on demand of a sum of Rs.20,000/- for long six years prior to

her unfortunate death. It is also found from the evidence of P.W.1

that the deceased made complaints to him about such torture on

illegal demand of money. However, the deceased or her near

relatives did not file any complaint against the appellant during her

life time. There is also no evidence to the fact that the near relatives

of the deceased tried to settle the dispute between her and her

husband. By 'salish' or taking the help of local respectable persons.

Only after 14 days of her death al such allegations were brought to

the notice of the Court of the learned S.D.J.M.

The learned advocate for the appellant is critical on the question

as to why no independent local witness was examined in the instant

case. I am not in a position to accept the above argument advanced

by the learned advocate for thew appellant. It is our own experience

that in a case of matrimonial dispute the neighbouring people seldom

want to involve themselves. Even if they know the incident of the

torture, physical and mental cruelty perpetrated upon woman, they

are reluctant to come forward because they do not want to purchase

animosity of the other neighbours who are accused of a case relating

to matrimonial dispute. The said circumstance is dealt with by the

Hon'ble Supreme Court in Trimukh Maroti Kirkan versus State of

Maharashtra reported in (2006) 10 SCC 681 in the following

words:-

"The demand for dowry or money from the parents of the bride

has shown a phenomenon increase in the last few years. Cases are

frequently coming before the Courts, where the husband or in-laws

have gone to the extent of killing the bride if the demand is not met.

These crimes are generally committed in complete secrecy inside the

house and it becomes very difficult for the prosecution to lead

evidence. No member of the family, even if he is a witness of the

crime, would come forward to depose against another family member.

The neighbours, whose evidence may be of some assistance, are

generally reluctant to depose in Court as they want to keep aloof and

do not want to antagonize a neighbourhood family. The parents and

other family members of the bride being away from the scene of

commission of crime are not in a position to give direct evidence

which may inculpate the real accused except regarding the demand of

money or dowry and harassment caused to the bride but it does not

mean that a crime committed in secrecy or inside the house should

go unpunished."

Taking into consideration the ratio of the above referred

decision of the Hon'ble Supreme Court as quoted above, this Court is

of the view that the evidence of the near relatives of a bride is

sufficient under the facts and circumstances of a case to hold the

accused guilty. However, such evidence must be believable, reliable,

cogent and unblemished.

Bearing the above principles in mind if the evidence of the

witnesses on behalf of the prosecution is scanned, it would be found

that the said witnesses during their deposition travelled beyond the

incident which allegedly took place on 8 th Aprll, 2000. This Court,

relying on the decision of Choulia (supra), cannot look into such

evidence.

Coming to the incident that took place on 8 th April, 2000, it is

found that P.W. 1, P.W.2, P.W. 3 and P.W. 5 were not the

eyewitnesses of the occurrence. Their Knowledge about the incident

is derivative in nature and hence hearsay.

Hearsay evidence are admissible under certain circumstances

which are not present and attracted in the instant case.

The learned Trial Judge came to the conclusion that the

deceased had met with an unnatural death placing reliance on a

decision of the Hon'ble Supreme Court in Taiyab Khan -vs- State

of Bihar now (Jharkhand) , reported in (2005) 13 SCC 455. In

the said report, it was held by the Hon'ble Supreme Court that where

the deceased died within three years of marriage, the case was of an

unnatural death, there was reliable evidence of dowry demand, the

accused would be convicted under Section 304B. The absence of

viscera was not made any difference to the facts of the case.

It is true that in the instant case the deceased died within six

years of marriage. Though it is found from the evidence of the father

and other relatives of the deceased that she had met with an

unnatural death, there is no expert opinion in the form of post-

mortem report in support of the prosecution case that the death of

the deceased was unnatural. On the contrary, the Autopsy Surgeon

found no injury whatsoever in the external part of the body as well

as internally. He found, though the instant case is a case of dowry

death by poisoning, the stomach , kidney and lungs of the deceased

absolutely normal. The observation of the Autopsy Surgeon and the

report is fully contrary to the basic canons of forensic medicine. If a

person consumes poison and dies, there must be trace of poisonous

fluid in the stomach and congestion of kidney with fibrosis on lungs.

Even if the remains of the stomach is pumped out during medical

treatment in the hospital which is the general mode of treatment in

case of poisoning, poisonous fluid will accumulate in the stomach in

case of death of the deceased. The Autopsy Surgeon who is the

expert in the field and whose report, the Court cannot deny, did not

find any such abnormality in any of the body parts of the deceased. In

Taiyab Khan (supra ) though the viscera report was not produced,

the Autopsy Surgeon opined that this was a case of unnatural death.

In the instant case even no such preliminary report was submitted by

the Autopsy Surgeon (P.W. 7). In the absence of such evidence, it is

not possible for the Court to accept that the deceased expired

unnaturally.

It is true that in respect of the case of cruelty perpetrated by

the husband upon his wife and dowry death, direct evidence is

hardly available. It is the circumstantial evidence and the conduct of

the accused persons which are to be taken into consideration for

adjudicating upon the truthfulness or otherwise of the prosecution

case. In the instant case, the Inquest Report suggests that no near

relation of the deceased was present at the time of inquest. On the

other hand, some other persons whose identity was not disclosed

during trial were present. It is claimed by P.W. 5, Sasti Das who is the

elder brother of the deceased that he was present at the time of

inquest over the dead body of the deceased. In his examination-in-

chief, he introduced a new story to the effect that the appellant

poured poison forcibly in the moth of the deceased and compelled her

to consume it. The deceased died of poisoning. Surpassingly enough,

he did not state the said fact to the Inquest Officer who held inquest

though he was present at the time of inquest.

Another important circumstance which lost sight of the learned

trial Court is that the de facto complainant claimed that he came to

know that his daughter Jyotsna consumed poison and was taken to

Beldanga Hospital. Then he went to Beldanga Hospital and came to

know that she was referred to Berhampore District Hospital. Thus, the

deceased was taken to the hospital for medical treatment obviously

by her matrimonial relations. It is found from the evidence of PW 2

that the appellant took the victim to the hospital for medical

treatment. The said circumstance points out the innocence of the

appellant had it been the fact that the deceased consumed poison

failing to bear the torture perpetrated upon her by the appellant to

commit suicide, the appellant would have fled away from the spot

seeing his wife consuming poison out of fear of the possible outcome

that may come from the side of the paternal home of the deceased.

The learned trial Judge failed to consider the above

circumstances while passing the judgment . At the very beginning of

the judgment I made a comment regarding applicability of precedence

under the facts and circumstances of a particular case. Let me assign

the reason in support of my above observation. The learned trial

Judge started his judgment after the heading decisions with reason,

stating basic principles of law, the observation of the Hon'ble

Supreme Court that the circumstance from which the conclusion of

guilt is to be drawn should be fully established the ratio of the

decision of the Hon'ble Supreme Court in the State of Uttar

Pradesh -vs- Dr. Ravindra Prakash Mittal, reported in (1992) 3

SCC 300, some excerpts of Tagore Law Lectures on the Principles of

the Law of Crimes in British India, the ratio laid down in Rajender -

vs State, reported in AIR (1966) SC 1322 general principles of

intention, motive etc. in criminal trial, then at page 8 of her judgment

he started discussion of the evidence on record. I lie to remind the

learned trial Judge that the fact should come first and reliability of

such facts and circumstances are to be tested on the basis of the

precedence . If the fact follows the precedence, there is every chance

which lead to wrong decision.

The learned trial Judge obviously toiled much to write the

impugned judgment. However, I am not in a position to sustain the

impugned judgment and order of conviction and sentence under the

above lacunae in the facts and circumstances of the case.

The appellant is entitled to get benefit of doubt.

As a result the instant appeal is allowed on contest. The

appellant be discharged from his bail bond.

Let a copy of this judgment along with the lower Court record

be send to the Court below forthwith.

(Bibek Chaudhuri, J.)