Srilal Shaw & Anr vs The State Of West Bengal & Anr
2022 Latest Caselaw 6230 Cal

                    IN THE HIGH COURT AT CALCUTTA
                    CRIMINAL REVISIONAL JURISDICTION
                             Appellate Side



Present:

The Hon'ble Justice Jay Sengupta



                           CRR 2309 of 2021

                            Srilal Shaw & Anr.
                                   Versus
                      The State of West Bengal & Anr.



For the petitioners           :     Mr. Manas Kumar Barman
                                    Mr. Abhiraj Tarafdar
                                                     ..... Advocates

For the State                  :    Ms. Anasuya Sinha
                                    Mr. Pinak Kr. Mitra
                                                     ..... Advocates


Heard on                       :    20.07.2022

Judgment on                    :    05.09.2022



Jay Sengupta, J.:

1.

This is an application challenging an order dated 21.03.2021 passed

by the learned Additional Sessions Judge, 2nd Fast Track Court, Sealdah,

South 24 Paraganas in Case No. SC 01 (12) 2019 arising out of Beliaghata

Police Station Case No. 144 dated 29.06.2019 (GR 1563 of 2019), thereby

rejecting the prayer for discharge of the accused and holding that a prima

facie charge under Sections 498A and 304B of the Penal Code was made out

against all the accused.

2. The present petitioners are the father-in-law and the sister-in-law of

the victim deceased while the added opposite party is the de facto

complainant and father of the victim deceased. In the First Information

Report lodged on 29.06.2019, the de facto complainant alleged that after the

marriage of the accused no. 1/husband and the victim deceased on

15.12.2018, the accused subjected the victim to physical and mental torture

for want of more dowry. Subsequently, on 28.06.2019 the victim was found

in hanging condition at her matrimonial home. During investigation it was

learnt that the door was under lock and key and had to be broken open by

the husband accused no. 1 in presence of local people. The victim was taken

to the hospital, but was declared brought dead. The victim committed

suicide within six months of marriage allegedly due to the torture for dowry

demand meted out by her husband and the other accused. A charge-sheet

was submitted under Sections 498A, 304B and 34 of the Penal Code on

14.08.2019. The petitioner's prayer for discharge was turned down by the

impugned order.

3. Learned counsel appearing on behalf of the petitioner submitted as

follows. Incidentally, this Court granted anticipatory bail to the petitioner

no. 2 on 01.11.2019 while the petitioner no. 1 was granted bail upon

surrender on 24.01.2020. It was observed by the Hon'ble Division Bench

that the married sister-in-law did not ordinarily reside at the matrimonial

home of the victim and there was no material to show that she was present

at the relevant time. The prosecuting agency failed to make out any case

against the petitioners. Without properly appreciating the materials

produced, the learned Trial Judge erroneously refused the petitioner's

prayer for discharge. There were several contradictions in the statements of

witnesses recorded under Sections 161 and 164 of the Code. Most of the

witnesses were either relatives or neighbours of the victim's side. There was

no contemporaneous material or evidence to show that the deceased was

ever subjected to physical torture of a kind that was sufficient to cause

grave injury or danger to the victim's health or limb. The de facto

complainant distorted the facts by unnecessarily adding colour to them.

There was no specific allegation against the present petitioners that could

connect them to the alleged offences. An abetment had to be made out from

a positive act. One simply could not presume the existence of it. The

learned Judge also erred in relying on evidence of CSW 8 who falsely stated

that she had filed a case under Section 498A of the Penal Code against her

husband the accused no. 1. There was no independent corroborative

evidence to sustain the charge of abetment. Instead of recording a subjective

satisfaction on the question of discharge, the learned Trial Judge went on

making guessworks and needlessly relied on a presumption of guilt. At this

stage, the learned Court did have the power to sift evidence for the limited

purpose of satisfying itself about whether a prima facie charge was made

out. But, it failed to do so. It was germane to note that there was no suicidal

note in the instant case. No prior allegation was found to have been levelled

by the victim earlier. In fact, the de facto complainant's version was non-

specific as regards the role played by the present petitioners. Reliance was

placed on a decision of the Hon'ble Supreme Court Case K. Subba Rao and

Others Versus State of Teleangana and Others (2018) 14 SCC 452 and it

was submitted that the Court should be careful in proceeding against

distant relatives in crimes pertaining to matrimonial disputes and dowry

deaths. Reliance was also placed on the decision in Sushil Kumar Sharma

Versus Union of India, (2005) 6 SCC 281. In spite of there being two suicide

notes, in State of West Bengal Versus Indrajit Kundu and Others (2019) 10

SCC 188, the Hon'ble Apex Court found that there was no goading or

solicitation or insinuation by any of the accused to the victim to commit

suicide. Reliance was also placed on the decisions in Sanju @ Sanjay Singh

Versus State of Madhya Pradesh 2002 5 SCC 371 where the Hon'ble

Supreme Court held that a suicide committed two days after the husband

had stated 'go and die', the suicide was not the direct effect of such quarrel.

Relying on Kuppusamy and Anr. Versus State of Tamilnadu 2020 (3) AICLR

559 (Madras), it was submitted that the presumptions under Section 113A

and 113B of the Indian Evidence Act as to abetment of suicide by a married

woman and dowry death could not be drawn automatically against the in-

laws. Reliance was also placed on the decision in Gurucharan Singh Versus

State of Punjab, AIR Online 2020 SC 759 on the issue of abetment. In fact,

the statement of CSW 19 and 11 named in the charge-sheet went against

the prosecution story. Earlier, when the victim was found at a railway

platform by the railway police, she decided to call her husband over phone

and when the husband came she went back after saying that she had left

after quarrelling. If the deceased had then wanted to lodge any complaint

against her husband and other in-laws, nothing would have prevented her

from doing so. The said incident took place on 26.06.2019 while the

deceased committed suicide on 29.06.2019 i.e., after about 72 hours from

the earlier incident. This would clearly go against hauling up the present

petitioners for the sad demise of the victim deceased. In fact, this was a

second marriage for the deceased. Actually, within a few days of such

unfortunate incident, she was forced by her parents to enter into her

marriage with the accused no. 1. Possibly she could not bring herself out of

her depression resulting from the sad demise of her previous husband.

Lastly, the learned Trial Judge failed to appreciate that the duty of hearing

an application for discharge was not an empty formality. In L. Krishna

Reddy Versus State of Madras (2014) 14 SCC 401, the Hon'ble Apex Court

held that it was the bounden duty of the Court to sift the materials to see

whether a prima facie case was established or not.

4. Learned counsel appearing on behalf of the State submitted as

follows. The victim deceased committed suicide within six months of

marriage due to the torture for demand of dowry of the husband and the

other accused. Several statements were recorded of witnesses including a

few relatives and neighbours. The statements recorded under Sections 161

and 164 clearly made out a case against the accused, even against the

present petitioners. The bank statement of the victim obtained from the

Central Bank of India evinced that a dowry amount was transferred to the

accused. This was a suitable case where the presumptions as mentioned

above would fully become applicable. Ample evidence was present to show

that the accused did inflict cruelty upon the deceased soon before her death

and the victim lady died within seven years of marriage. The incident of 26th

did not help the present petitioners any bit. After the husband, came she

went under his influence and would not have been free to make a complaint

stating the real facts. Be that as it may, the materials collected during

investigation clearly made out a prima facie case against the accused. Only

after going through a full fledged trial, could the defence of the accused be

tested properly. Most of the decisions cited on behalf of the petitioner dealt

with completely different sets of facts. As such, they were distinguishable. A

prima facie case was indeed found to have been made out against the

petitioners as would be evident from a careful perusal of the relevant

documents.

5. I heard the submissions of the learned counsels appearing on behalf

of the parties and perused the revision petition, the written notes of

submissions and the case diary.

6. It is true that the present petitioners are the father-in-law and the

sister-in-law of the victim (deceased) and not the husband. Therefore, a

greater scrutiny of the materials would perhaps be necessary to sustain the

prosecution against them even at this stage. It is now a settled position of

law that it has to be scrutinised whether there are sufficient materials

against the in-laws of a lady other than the husband who are quite often

falsely implicated in such cases.

7. It is also true that the petitioner no. 1 was granted bail upon

surrender and the petitioner no. 2 was granted anticipatory bail. However,

unlike in case of grant of anticipatory bail or bail, the scrutiny would be

higher in case the petitioners want the proceeding against them to come to

an end even before a full-fledged trial could commence. It was trite to

mention that any sifting of evidence for such purpose would be for the

limited purpose of finding out whether a prima facie case is made out.

8. The victim and the accused no. 1 got married in December 2018 and

within six months the present incident occurred. The wife allegedly

committed suicide within six months of marriage purportedly due to the

torture inflicted by the in-laws for dowry demands. On 28.06.2019, she was

found hanging at her matrimonial home. During investigation, it was learnt

that as the door was locked, it had to be broken open by the

husband/accused no. 1 in the presence of locals.

9. It has been vehemently argued on behalf of the petitioners that a few

days before the incident the victim went out of her matrimonial home. She

was rescued by the Railway police. When asked, the victim called her

husband and not anyone at her maternal home. When the husband came or

even before that, she did not make any complaint against him or the in-laws

before the Railway police. Even before this incident, she did not lodge any

complaint to any authority regarding torture by the in-laws over dowry

demand. First, if the above facts which occurred a few days before the

alleged incident of unnatural death of the victim are carefully judged, they

would not strictly enure to the benefit of the present petitioners. Secondly,

the petitioner's version is contradicted by the victim's father in his statement

under Section 164 of the Code. According to him, the victim first called up

her paternal home on a mobile phone of a stranger and thereafter, he

requested the husband to take the victim back home. These disputed facts

can best be decided during trial.

10. So far as the present petitioners are concerned, there are specific

allegations made against them in the First Information Report that they

inflicted torture for failure to bring more dowry. In some statements of

witnesses like that of the victim's mother recorded by the investigating

officer there are clear references as to their involvement. Moreover, Soma

Mondal and Keka Pal, neighbours of the accused made statements that the

quarrels increased when the instant petitioners were present at home. In

fact, Keka Pal corroborated the presence of the husband and the father-in-

law at the place soon before the incident and the fact that a heated quarrel

preceeded the death of the victim. Besides, there are allegations against all

the accused of taking dowry during the wedding and demanding and

receiving more dowry after marriage. The accused wanted more money

purportedly on the ground of the husband's downslide in business and on

the pretext of defraying expenses in respect of liabilities towards the

husband's former wife. Incidentally, the former wife alleged that the

husband pawned his jewellery for money, did not return articles and was

not paying maintenance. It is further alleged that when the present victim

wife expressed her inability to bring more money, the accused inflicted more

torture upon her. This is a case based primarily on circumstantial evidence.

Much of the petitioner's contentions are based on disputed facts, which

could be tested only during trial. In view of the same, it would be absolutely

premature and predictive to exonerate the petitioners at this stage. On the

contrary, it appears that a prima facie case is made out against the

petitioners.

11. In fact, when the wife has committed suicide within six months of her

marriage and it is alleged that soon before such incident, she was subjected

to cruelty for dowry demand, necessary presumptions would follow as

contained in the Evidence Act.

12. In view of the materials collected during investigating including the

existence of the statements made by witnesses as referred to above and after

reading the same in the light of the attending circumstances, it appears that

there are sufficient materials to proceed to the next stage in the prosecution

against the accused.

13. Besides, the impugned order is a reasoned one and is not per se

illegal.

14. In view of the above, I find no reason to interfere with the impugned

order.

15. Accordingly, the revisional application is dismissed.

16. However, there shall be no order as to costs.

17. The petitioners shall be at liberty to raise all the points taken up in

this revision at the time of trial.

18. The learned Trial Court shall conclude the proceeding as expeditiously

as possible without granting any unnecessary adjournment to any of the

parties.

19. Urgent photostat certified copies of this judgment may be delivered to

the learned Advocates for the parties, if applied for, upon compliance of all

formalities.

(Jay Sengupta, J.)

S.M./P. Adak