Sukla Dawn & Anr vs State Of West Bengal
2022 Latest Caselaw 2971 Cal

                      IN THE HIGH COURT AT CALCUTTA
                     CRIMINAL APPELLATE JURISDICTION
                              APPELLATE SIDE

PRESENT:

THE HON'BLE JUSTICE TIRTHANKAR GHOSH

                             CRA 672 of 2004

                            Sukla Dawn & Anr.

                                    -Vs.-

                            State of West Bengal

For the appellants           :     Mr. Saryati Dutta,

For the State                :     Mr. Saibal Bapuli,
                                   Mr. Bibaswan Bhattacharya.

Heard on                     :     11.04.2022, 28.04.2022, 04.05.2022
                                   10.05.2022

Judgment on                  :     19.05.2022


Tirthankar Ghosh, J:-
      The present appeal has been preferred against the judgment and order

dated 15.09.2004 passed by the learned Additional Sessions Judge, 2 nd Court,

Barasat, North 24-Parganas in connection with the S.T. No. 4(4) 97

corresponding to S.C. No. 19(9) 95, wherein the learned Trial Court was

pleased to hold the appellants guilty for commission of offence punishable

under Section 498A of the Indian Penal Code and acquitted them for the

offence punishable under Section 307 read with Section 120B of the Indian

Penal Code. The Trial Court was pleased to impose sentence upon the

appellants to suffer rigorous imprisonment for 1 (one) year each and to pay a
                                        2


fine of Rs. 500/- each, i.d. to suffer further rigorous imprisonment for 2 (two)

months for the offence under Section 498A of the Indian Penal Code.


      The records reflect that Bidhannagar Police Station Case No. 155 dated

10.12.1994

under Sections 498A/323/325/506 of the Indian Penal Code was

registered for investigation on the basis of a complaint addressed by Anindita

Dawn to Officer-in-Charge, Bidhannagar Police Station on 10.12.1994. The

allegations made in the letter of complaint was that the complainant was

married to one Chirantan Dawn on 05.03.1994 and the complainant's father

on demand of the appellants gave gold jewellery, cash etc. and after some days

of marriage paid a huge sum of money for construction of the first floor of the

house. The complainant alleges that after few days of marriage her mother-in-

law, Sukla Dawn started physical and mental torture upon her on various

pretext and instigated her husband for bringing more money and jewellery from

her father. When the complainant refused to such demand of her husband

which was instigated by her mother-in-law, both the appellants inflicted

physical torture upon her and the complainant was compelled to inform the

same to her parents. On 03.12.1994 the complainant's husband being

instigated by his mother assaulted the complainant and when the same was

informed by the complainant to her mother and elder sister, police had to

intervene when the complainant's husband at the police station accepted his

mistake and prayed for mercy, as such on the said date the complainant

withdrew her allegations and the complainant with the consent of the present

appellants went to her paternal home. On 10.12.1994 at around 6.30 p.m.

when the complainant being accompanied by his parents went to her

matrimonial home, her mother-in-law abused them in filthy language and

within 10/15 minutes her husband returned and in an excited manner

directed the complainant and her mother to go out of their house, when the

complainant's mother protested, her mother-in-law directed her husband to

throw them away from their residence, when her husband started assaulting

her mother and threw her at the floor and thereafter with shoes started

assaulting her. Her mother sustained serious injuries at her face, stomach and

other portions of the body. At that time, when the complainant went to rescue

her mother she was also assaulted by her husband with shoes and took out a

knife for murdering her. The complainant and her mother started shouting

when the local people started approaching their residence and as a result the

husband fled away.

The Investing Agency on receipt of the complaint commenced

investigation, the Investigating Officer on completion of investigation submitted

charge-sheet under Sections 498A/324/326/307/506 of the Indian Penal Code

against the present appellants. Learned Magistrate was pleased to take

cognizance of the offence and after supply of the copies under Section 207 of

the Code of Criminal Procedure was pleased to commit the case to the Court of

Sessions and finally the case was transferred to the learned Additional

Sessions Judge, 2nd Court, Barasat, North 24-Parganas (hereinafter referred to

as the 'Trial Court').

The learned Trial Court thereafter was pleased to frame charges against

the appellants under Sections 498A, 307 and 120B of the Indian Penal Code.

In course of trial the prosecution examined 14 witnesses which included

PW1, Anindita Dawn, the complainant; PW2, Krishnapada Dawn, father of the

complainant; PW3, Basudeb Mondal, working as a mason at Salt Lake; PW4,

Bibekananda Dutta, an Accounts Assistant in the firm of PW2, who

accompanied the mother of the complainant; PW5, Bimal Gupta, the driver of

PW2 who was present on 10.12.1994; PW6, Dr. Archana Adhikary, Medical

Officer of Salt Lake Zonal Hospital; PW7, Dr. Subrata Majumder, Medical

Officer of Salt Lake State General Hospital; PW8, Malatilata Dawn, mother of

the complainant; PW9, Gour Gopal Banik, brother-in-law of PW1; PW10,

Nibedita Banik, sister of PW1; PW11, Bimal Chandra Das, common friend of

both the families; PW12, Asish Bhattacharya, A.S.I. of Police, who started

Bidhannagar East Police Station Case No. 155 dated 10.12.1994; PW13, Chitta

Ranjan Das, Sub-Inspector of Police Bidhannagar East Police Station and

PW14, Shyamal Ranjan Sengupta, S.I. of Police, Bidhannagar East Police

Station.

PW1, Anindita Dawn, in her evidence before the Trial Court deposed that

she was married with appellant No. 2, Chirantan Dawn /appellant no.2 on

05.03.1994 according to Hindu rites and customs and in the said marriage her

father gave Rs.20,000/- in cash, 25/30 bharies of gold ornaments, refrigerator,

T.V., Sofa set and many other articles including wrist watch, ring, gold buttons.

After marriage both of them started residing at AJ-323 Salt Lake, for about

10/15 days after marriage she lived peacefully and thereafter, when her

husband went out of house her mother-in-law started serving rotten meals.

When she refused to take such meals, her mother-in-law threatened her that if

such an incident is reported she would be burnt by pouring kerosene oil over

her. Being afraid she did not divulge such incident to her husband or to her

parents. Being unable to bear such torture when she informed her husband

and also to her parents, her parents came down and spoke with her mother-in-

law. Immediately after her parents left the house her mother-in-law dashed her

and drove her out of the house. She thereafter stayed with her husband at

10/1, Beniatola Lane, Calcutta and also at her father's house at 8/B, Ram

Nath Majjummder Street, Calcutta. During such period the appellant no.2

requested the complainant's father to provide him financial assistance for

construction of the first floor of their house where he could live with her and

her father paid a sum of Rs.3,60,000/- to her husband. The first floor of the

house was constructed and both of them returned back to her matrimonial

house and stayed at the first floor, however, the mother-in-law used to abuse

her in filthy language from the ground floor of the house and when such

incident was reported to the appellant no.2, he stated that she would have to

bear such abuse or in the alternative leave the house. On 03.12.1994 the

appellant no.2 insisted to her for demanding a Maruti car from her father when

she refused she was assaulted mercilessly, when she ran out of the house and

entered a neighbouring house for shelter. She thereafter, informed her mother,

sister and brother-in-law over phone and after sometime police reached at her

matrimonial home and the appellant no.2 was taken to the police station.

However, she withdrew the complaint as the appellant assured her they would

not ill-treat her in future. She was treated by a lady doctor namely, Archana

Adhikary at Salt Lake General Hospital. On 10.12.1994 at about 6.00 p.m.

when she went to her matrimonial home with her parents, her husband was

not present and her mother-in-law on seeing them started abusing and asked

her to go back. As the keys of the first floor was available with her she went to

the first floor, within 15 minutes appellant no.2 came to the house and on

seeing her and her mother in the first floor he became excited and kicked on

the leg of her mother who fell down and her husband started assaulting her

mother with his shoes over her face, breast and belly, her mother sustained

bleeding injuries. When she went to rescue her mother, she was also assaulted.

When at that time her mother-in-law (appellant no.1) asked the appellant no.2

to kill them when the appellant no.2 took out a knife. Hearing the hue and cry

the neighbours and other local persons started coming when her

husband/appellant no.2 fled away. She and her mother were taken to the

hospital and also to the Police Station. The witness also alleged that the sum of

Rs. 3,60,000/- was paid by her father from her own account maintained with

Bank of India, College Street Branch through account payee cheque. The

witness identified her letter of complaint and the FIR which was marked as

Ext.1. The seizure of knife and shoes which were marked as Ext.2. The seizure

list by way of which the invitation card, injury report, bank passbook were

seized was marked as Ext.3. The Invitation Card was marked as Material Ext1.

PW2, is the father of PW1, who narrated regarding the torture and

assault inflicted upon his daughter and wife by the appellants. The witness

also stated regarding parting with a sum of Rs. 3,60,000/- for the sake of peace

of his daughter. The rest of the evidence deposed by the witness was in tune

with the evidence of PW1 so far as it related to the assault, torture and injuries

sustained by PW1 and her mother.

PW3, was a mason working at Salt Lake on that date at about 6.15 p.m.

he was passing in front of AJ-323 and he found many people gathered there in

front of the said house and he also heard noise of assault and scuffle at the

first floor of the said house and saw a young woman was getting down from

staircase from the first floor of the house and an aged lady was slowly coming

down. According to the witness, the aged lady had bleeding injury at her face

and her clothes were stained with blood. He has also been deposed that the

said lady was shifted for the purpose of sitting at the house opposite to AJ-323.

PW4, is an Accounts Assistant, who new regarding the incidents of

03.12.1994 and 10.12.1994. The witness signed the seizure list wherein the

wearing cloths of Malatilata Dawn were seized and he had signed the same.

The witness identified his signature which was in the seizure list, which was

marked as Ext.4.

PW5, is the driver of PW2, who had taken the family to AJ-323 on

10.12.1994. The witness has narrated part of assault, injuries as have been

stated by PW1 and PW2. The witness has signed in the seizure list and his

signature was identified in Court and marked as Ext.2/2, Ext.3/2 and

signature in another seizure list as Ext.4/1.

PW6, was attached to Salt Lake State Zonal Hospital on 03.12.1994. The

witness had examined PW1 and found minute abrasion over dorsum of left

hand, bruise over left chick, tenderness in lower abdomen and the history of

the assault as stated by the patient was that her husband kicked and blows

inflicted all over her body in the morning at her residence. The injury report

was identified by the doctor and the same was marked as Ext.5.

PW7, treated both Anindita Dawn and Malatilata Dawn. The witness

found multiple bruise and abrasion over the body particularly on the elbow and

back. There was lacerated injury on the lips bleeding from the gums, swelling

on the back of the head and bleeding from the skull. The history so stated is

that her son-in-law assaulted her at about 6.30 pm at AJ-323, Calcutta-91.

Regarding Anindita Dawn the doctor stated that he found abrasion over the

neck and hands, bruise over the chick and the history of the injury is related to

assault being inflicted upon her by her husband. Injury Report was identified

by the witness and the same was marked as Ext.6.

PW8, mother of PW1, narrated the events in tune and similarly as PW1.

PW9, is brother-in-law of PW1 who stated regarding the incident of

torture, injury, demands of dowry and assault.

PW10, sister of PW1, who stated regarding the same manner as PW9 in

respect of torture, demands of dowry, injuries inflicted and the incident which

happened on the relevant dates.

PW11 stated regarding the incidents of 3rd December, 1994 and at his

intervention on that date PW1withdrew the complaint. The witness also

deposed that on 11.12.94 PW1 and PW8 came down to his residence and

showed their injuries.

PW12 is A.S.I. of Police who prepared the Formal FIR. The witness

identified his signatures in the Formal FIR.

PW13 is Sub-inspector of Police, who wrote the GD Entry which was

signed by him and the same was marked as Ext.7.

PW14 is Sub-inspector of Police and Investigating Officer of the case.

Mr. Dutta, learned advocate appearing for the appellants submits that

the prosecution witnesses have embellished the facts of the case at every stage.

According to him the demand of Maruti Car and the story of Rs.3,60,000/-

being paid to Chirantan Dawn/appellant no.2 was not alleged in the FIR and

was subsequently incorporated to improve the prosecution case. Learned

Advocate submits that the factum of PW8 Malatilata Dawn, who fell down at

the staircase, was converted into an allegation of being assaulted and pushed

down the staircase. The appellant no.1, mother-in-law who is 81 years of age

has been implicated with false narration of facts. By introducing interested and

chance witnesses the prosecution tried to cover up the case by filling up the

loopholes.

Learned advocate also drew the attention of the Court to the factum of a

civil case being pending and submitted that a suit for cancellation of Deed of

Gift itself goes to show that the amount which was handed over was not in the

form of dowry. In order to stress upon the conduct of the complainant, learned

advocate submitted that earlier a complaint was lodged by the PW1 at

Bidhannagar Police Station but subsequently the same was withdrawn.

Mr. Bhattacharya, learned advocate appearing for the State, on the other

hand rebutted the contentions advanced by the learned advocate appearing for

the appellants and submitted that PW2, PW8, PW9 and PW10 corroborated the

evidence of PW1 on the issue of torture and assault inflicted by the appellant

no.2 on 03.12.1994. The said witnesses also corroborated the assault upon

PW8 and PW1 on 10.12.1994. The doctors who treated the prosecution witness

nos. PW1 and PW8 i.e. PW6 and PW7 corroborated the factum of assault and

also recognised the injury reports of 03.12.1994 and 10.12.1994 which are

marked in the evidence as Ext.5 and Ext.6. According to the learned advocate

there is a ring of truth in the narration of all the prosecution witnesses and

there is no scope for the appellants to come out from the finding of the learned

trial Court, so far as the offence under Section 498A of the Indian Penal Code

is concerned.

I have taken into account the rival submissions of the parties and

assessed the evidence of the witnesses tendered by the prosecution, the

documents relied by them, the answers which were advanced by the appellants

in their examination under Section 313 of the Code of Criminal Procedure as

also the issues raised in the cross-examination by the appellants. The version

of PW1, the complainant who happened to be the victim of the case and on

whose allegation of physical and mental torture, the instant case was initiated

along with injuries being sustained by her and her mother could not be

dislodged by the appellants during their cross-examination, in fact the assault

of 03.12.1994 and 10.12.1994 were corroborated by independent witnesses, as

also the medical practitioners associated with Government Hospital. So far as

the issue of related and interested witnesses are concerned as has been raised

by the learned advocate appearing for the appellants, I am of the view that as it

has been settled by the Hon'ble Supreme Court in a number of judgments that

in this type of offences where within the four walls offences are committed, it is

not possible for the outsiders to be a eye-witness to the incident. The very fact

that a witness is a related witness do not automatically dilute such evidence as

it is expected that the factum of physical and mental torture being inflicted

upon the victim in a matrimonial discord would normally be divulged and

known to related witnesses. To that extent the judgment of the Hon'ble

Supreme Court in Ilangovan -Vs. - State of T.N., (2020) 10 SCC 533 is quoted

as follows:

"7. With respect to the first submission of the counsel for the appellant, regarding the testimonies of related witnesses, it is settled law that the testimony of a related or an interested witness can be taken into consideration, with the additional burden on the Court in such cases to carefully scrutinise such evidence (see Sudhakar v. State [Sudhakar v. State, (2018) 5 SCC 435 : (2018) 2 SCC (Cri) 777] ). As such, the mere submission of the counsel for the appellant, that the testimonies of the witnesses in the case should be disregarded because they were related, without bringing to the attention of the Court any reason to disbelieve the same, cannot be countenanced."

I have also considered the contention regarding embellishment of facts

and I find that the same is not an afterthought story as the Investigating

Officer of the case was never confronted regarding such version of the witness

which surfaced in course of investigation. It was way back in Manoj Alias Bhau

& Ors. -Vs. - State of Maharashtra, (1999) 4 SCC 268, held that FIR is not

supposed to be encyclopaedia of all details and as such the minute details

regarding demand of dowry may not have been stated when the same was

initially lodged. The factum that a suit for cancellation of the Deed of Gift is

pending itself goes to show that a sum of Rs.3,60,000/- was contributed by the

father of PW1 for construction of a floor at the matrimonial home of PW1.

In view of the consistent version of the prosecution witnesses, I am of the

opinion that the finding of guilt so far as the offence under Section 498A of the

Indian Penal Code is concerned, the same do not call for any interference by

this Court and as such the judgment dated 15.09.2004 passed by the learned

Additional Sessions Judge, 2nd Court, Barasat, North 24-Parganas is hereby

affirmed. However, so far as the sentence is concerned the same calls for an

interference on two counts as the instant complaint of is of the year 1994 and

the degree of complicity of the mother-in-law, Sukla Dawn /appellant no.1 and

husband, Chirantan Dawn/appellant no.2 are not same.

Thus, the sentence imposed upon mother-in-law, Sukla Dawn, Appellant

No.1 under Section 498A of the Indian Penal is modified to Rigorous

Imprisonment for 6 (six) months with fine and the default sentence remaining

un-altered.

So far as the sentence imposed by the trial Court upon the husband,

Chirantan Dawn/Appellant No.2 is concerned the same is not interfered with.

With the aforesaid observations CRA 672 of 2004 is disposed of.

The appellants are on bail their bail bonds stand cancelled.

They are directed to surrender before the Jurisdictional Court within a

period of 30 days, in the alternative the Jurisdictional Court would issue

process for compelling them to undergo the sentence.

Department is directed to send back the Lower Court Records and

intimate the judgment to the learned Jurisdictional Court.

All parties shall act on the server copy of this judgment duly downloaded

from the official website of this Court.

Urgent Xerox certified photocopy of this judgment, if applied for, be given

to the parties upon compliance of the requisite formalities.

(Tirthankar Ghosh, J.)