Shiba Prasad Chakravorty @ ... vs The State Of West Bengal
2022 Latest Caselaw 2503 Cal

                   IN THE HIGH COURT AT CALCUTTA
                     Criminal Appellate Jurisdiction
                             Appellate Side

Present :-
The Hon'ble Justice Moushumi Bhattacharya.


                             C.R.A. 328 of 2009
                Shiba Prasad Chakravorty @ Kanchan & Ors.

                                       Vs

                             The State of West Bengal


As Amicus Curiae         :             Ms. Puja Goswami


Last Heard on            :             08.04.2022.



Delivered on             :             04.05.2022.



Moushumi Bhattacharya, J.

1. The present appeal is against a judgment dated 30.03.2009 passed by

the learned Additional District & Sessions Judge, Fast Track, 2nd Court,

Suri, Birbhum in Sessions Case No. 152 of 2005 by which the three

appellants before this Court were convicted for commission of offences

punishable under Section 498A of the Indian Penal Code, 1860. The

appellants were sentenced to rigorous imprisonment for two years and fine

of Rs. 1000/- each. The appellant no. 1 is the husband of the victim

lady/defacto complainant, the appellant nos. 2 and 3 are the father and

mother, respectively of the appellant no. 1.

2. The prosecution case, in summary, is as follows. The First Information

Report (FIR) was registered on 20.05.2003 on the basis of a written

complainant lodged by PW/1, Shampa Chakravorty, the wife of the

appellant no. 1. According to FIR, the complainant was married to the

appellant no. 1 on 13.03.2001 and sufficient amount of dowry was provided

by the family members of the complainant. After a few months into the

marriage, the appellant nos. 2 and 3 started to torture the defacto

complainant for additional dowry which included the complainant not being

given proper food. The complainant became pregnant but was forced to

abort her child. The complainant was driven out of her matrimonial home in

February, 2002 and lodged a complaint on 20.05.2003. On the basis of such

complaint, a Police Case was registered and resulted in the Sessions Trial

arising out of Sessions Case No. 152/05. The appellants were convicted in

the Sessions Trial.

3. A total of seven witnesses were examined by the prosecution which

were as follows:

PW/1 Shampa Chakravorty - Defacto complainant and wife of the appellant no.1

PW/2 Maya Sutradhar - Mother of the complainant

PW/3 Rebati Sutradhar - Father of the complainant

PW/4 Swapan Mazumder - The priest who conducted the marriage

PW/5 Arunagshu Banerjee - The doctor who treated the victim/complainant on 26.07.2001 at Suri Hospital

PW/6 Dr. B.S. Pal - The doctor who treated the victim on 30.12.2001

PW/7 Partha Sakha Mandal - Investigating Officer

The impugned judgment records and considers the evidence of these

witnesses. The learned Trial Court has arrived at several conclusions which

are however not corroborated by the evidence. The case sought to be made

out by the prosecution contains numerous lacunae and loopholes.

4. The above observation arises out of the following factors. First, there

was a palpable delay in lodging of the FIR. The complainant was allegedly

driven out of her matrimonial home in February, 2002 but the FIR was

lodged on 20.05.2003, after a gap of one year and three months. This delay

has not only remained unexplained by the complainant but has also not

been dealt with by the prosecution. The complainant has also not explained

why she or her family members failed to intimate the fact of torture on her

to the police from the period 13.03.2001 (being the date of marriage) to

February 2002.

5. Second, no local witnesses were examined to prove the fact of torture

on the complainant save and except the parents of the victim

lady/complainant.

6. Third, it appears from the deposition of the complainant/PW1 that

she was treated by one doctor namely Biswajit Dey and another Dr. D.

Chatterjee who issued prescriptions to her. However, none of these doctors

were examined by the prosecution. On the other hand, the deposition of

PW/5, Arunagshu Banerjee, who treated the victim on 26.07.2001 at Suri

Hospital indicates that the victim consumed pain killer and consequently

became ill. There is no mention of the victim consuming poison. Further,

the other doctor from Suri Hospital who examined the victim on 30.12.2001

namely PW/6 Dr. B.S. Pal disclosed that the medical documents with regard

to the admission of the victim could not be found. The statements also

record that Dr. B.S. Pal was not in a position to recollect the cause of illness

of the patient (victim). It is also curious that the fact of the victim suffering

from various mental ailments and undergoing treatment for the same, which

would be evident from the deposition of the parents of the victim, were not

given any importance by the prosecution. The prosecution did not bring the

statements of these doctors on record.

7. Fourth, the evidence of the victim PW/1 that the appellant no. 1 (the

husband of the victim) demanded further dowry from her parents for

business purpose is not corroborated from the evidence of PW/2 and PW/3,

being the parents of the victim.

8. The above factors point to the patent infirmities in the case of the

prosecution. The story of forced abortion was not proved by the doctor who

treated the victim on 26.07.2001. The victim's mother, namely PW/2,

deposed about the forced abortion after four years from the FIR and did not

disclose said facts to the police while recording her statement under Section

161 of The Code of Criminal Procedure, 1973. The doctor deposed that the

victim had consumed pain killers. Besides, the victim was admitted at Suri

Hospital on two occasions and went back to her matrimonial home. As

stated above, the mental ailments suffered by the victim and the treatment

which she was undergoing was not brought on record by the prosecution.

9. There is also no evidence which would prove the cruelty allegedly

suffered by the victim lady. The standard of proof has to be beyond

reasonable doubt and the burden was upon the prosecution to prove its

case. However, the prosecution failed to discharge the burden by failing to

examine any independent witnesses who could have corroborated the story

of cruelty suffered by the victim lady. Further, although the case of the

prosecution is that sufficient amount of dowry was given to the appellants

by the family of the victim lady, there is no indication, in the FIR or

otherwise, as to whether the Investigating Officer made any effort to recover

these articles (stridhan) or seized them by way of a seizure list.

10. The impugned judgment by which the appellants were convicted and

sentenced is replete with findings without the evidence to show for it. For

instance, the learned Court considers the written complaint and the

evidence of PW/1, 2 and 3 being the victim lady, her mother and her father

respectively with regard to the allegation of torture and comes to the finding

that the material 'clearly proved and established' the fact that the victim

lady was subjected to cruelty and harassment by her husband and in-laws.

The learned Judge also concludes that the victim lady consumed poisonous

drug in order to commit suicide and further concludes that all the evidence

clearly established that the victim lady was subjected to cruelty by the

husband and parents-in-law during her stay in the matrimonial house. The

learned Judge also concludes that it has no reason to disbelieve the case of

the prosecution that the victim lady was subjected to cruelty by the

husband and in-laws in her matrimonial house and therefore the charge

under section 498-A of the Indian Penal Code was proved by sufficient and

cogent evidence.

11. Section 498-A of the Indian Penal Code contemplates a married

woman being subjected to cruelty by the husband or the relative of the

husband where 'cruelty' is defined as wilful conduct of a nature which is

likely to drive the woman to commit suicide or cause grave injury to the life

or health of the woman or harassment for coercing the woman or any person

related to her to meet any unlawful demand for any property. Explanations

(a) and (b) to 498-A requires a close and proximate connection between the

wilful conduct of the perpetrator and the suicide committed by or injury

suffered by the woman. The harassment of woman must also be for an

unlawful demand of property or valuable property. Therefore, for a charge to

be established under section 498-A, the fact of cruelty must not only be

proved beyond all reasonable doubt but must also result in or have a causal

connection to the suicide or injury suffered by the woman. It was hence

incumbent on the Court to establish through the material before it that the

appellants had inflicted cruelty on the complainant/victim lady as defined in

Explanation (a) or (b) which in turn drove her to commit suicide. The

impugned judgment has not established this fact.

12. There is also no discussion in the impugned judgment of the fact of

delay in lodging the FIR or the absence of evidence of at least two doctors

who had examined and issued medical prescriptions to the victim lady. The

judgment also does not discuss the failure of the witnesses deposing on

behalf of the victim to disclose material facts while recording their

statements including the fact that the victim was suffering from a mental

condition. These were crucial to the case for establishing or negating the

charge under section 498-A and the non-consideration of these factors

renders the decision vulnerable for interference.

13. For the above reasons, this Court finds no justification to convict and

sentence the appellants under section 498-A of the Indian Penal Code. CRA

328 of 2009 is accordingly allowed. The impugned judgment dated 30th

March, 2009 is set aside and the order of conviction of the same date passed

by the Additional District & Sessions Judge, Fast Track, 2nd Court, Suri,

Birbhum in Sessions Trial No. 3 (November)/2005 arising out of Sessions

Case No. 152/2005 and the consequential sentence awarded against the

appellants is set aside. The appellants are hereby acquitted of the charges

framed against them and are discharged from any bond and or condition, if

furnished by the appellants, in connection with any bail application in

respect of the present conviction at any point of time. All connected

applications are disposed of.

14. This Court records its appreciation to the learned Amicus whose

assistance in the matter has been invaluable.

Urgent Photostat certified copies of this judgment, if applied for, be

supplied to the respective parties upon fulfilment of requisite formalities.

(Moushumi Bhattacharya, J.)