Sanjoy Das & Ors vs State Of West Bengal
2023 Latest Caselaw 2574 Cal

                 IN THE HIGH COURT AT CALCUTTA
                CRIMINAL APPELLATE JURISDICTION

Present:
The Hon'ble Justice Ananya Bandyopadhyay

                        C.R.A. 255 of 2005

                        Sanjoy Das & Ors.
                                -Vs-
                       State of West Bengal


Amicus Curiae           :     Mrs. Rituparna Ghosh (De)

For the State           :     Ms. Faria Hossain
                              Mr. Anand Keshari

Heard on                :     19.01.2023

Judgment on             :     17.04.2023.


Ananya Bandyopadhyay, J. :-


1.

The instant appeal has been preferred against the judgment and

order of conviction dated on 11.03.2005 passed by learned

additional sessions judge case first court Birbhum Suri in

session case number 12/1999 convicting the appellants u/s

498A of IPC sentencing the appellants to suffer rigorous

imprisonment for 3 years each and also to pay a fine of Rs

5000/- each.

2. In default to suffer further rigorous imprisonment for six

months each.

3. The prosecution case precisely state of a complaint lodged by

father of the deceased victim who was married to the appellant

Sanjoy Das. Just after the marriage the relatives of the appellant

started to torture the victim Puspha, physically and mentally. As

a result of such torture the victim submitted an application

before the women cell a year before her death. The appellant

gave an undertaking before the officer of the women cell to take

his wife back to his house. The complaint further stated the

victim used to come to her parental house frequently and on

13th of March on a Dol-Purnima day the victim was assaulted by

her husband and other family members for which she went to

her house. Thereafter the husband of the victim and other

members came to the house of the complaint and assured that

they were sorry and had taken back the victim to their house.

Thereafter on 9.4.98 the appellants Sanjoy das, Kartick Das and

two of her sister-in-law Prafulla Das and Katamuni Das

assaulted her severely. The husband of the victim hit her with a

shabol and other had put kerosene oil in her body and caught

her fire in her. She was to Suri Sadar Hospital. And 10.04.1998

the victim died at 6.00 A.M in the morning. The complaint

prayed for punishment of the appellant. Based on the aforesaid

written complaint Suri P.S case no. 54/98 dated 10.04.1998

under Section 302 was investigation was started, which ended

in the submission of the charge sheet. Charges were framed

under Sections 302/498A/34 Indian Penal Code. The accused

persons pleaded not guilty and claimed to be tried.

4. The prosecution cited 17 witnesses and exhibited certain

documents.

5. The Ld. Amicus Curiae, Mrs. Rituparna Ghosh (De) for the

appellant submitted the judgment of the Trial Court was based

in conjecture and surmises without proper appreciation of the

evidence on record. The Ld. Trial Judge relied upon the evidence

of P.W 1,2,4,5,9 being related witness, in absence of any

independent witnesses. The evidence of P.W.6 a neighbour of the

appellant was completely disregarded who stated that he had

not seen personally or heard anything regarding ill- treatment,

torture or assault upon the victim by the appellant. The inquest

report marked as Ext.1 stated that a dispute took place between

the appellant husband and the victim on 09.04.1994. At about

7.00 p.m. and thereafter the appellant left the house. At about

9.00 p.m in the night the victim set herself on fire. It was further

submitted that the written complaint filed by the deceased

victim before the women's cell mark Ext 4. alleged that on

15.05.1996 the deceased was assaulted by her husband by a

chain with the aid of her three sisters in law and somehow saved

by her aunt-in-law. However the said Aunt-in-law was not

produced as a witness, to corroborate the fact of physical torture

inflicted upon the victim. The prosecution did not cite any eye

witness. Moreover the women cell could not produce any

document to justify the claim of torture complained to them. The

doctor who attended the victim at the hospital and the doctor

who held the post-mortem examination of the victim were not

examined. The post-mortem report did not clearly express

whether the nature of death was suicidal, homicidal or

accidental. The prosecution could not make out a case for

alleged commission of the offence U/S 498A of the IPC and as

such miserably failed to establish its case and the appeal shall

be allowed.

6. The Ld. Advocate for the State, Ms. Faria Hossain submits that

the evidence of the related witnesses which are corroborative

and trustworthy cannot be disregarded because the relatives will

not let any innocent to be punished but the perpetrator alone.

The prosecution aptly proved its case and the appeal should be

dismissed. There as a previous complaint before the women cell

which evinces the fact of the victim being subjected to

continuous torture by the appellants.

7. The evidence of the prosecution witnesses on record primarily

corroborates the statement of the complaint. PW 1 the father of

the victim deposed that his daughter was married to appellant

Sanjoy Das for about 10 years since her death. The victim used

to reside at her matrimonial home after her marriage and for a

year after her marriage she did not disclose anything regarding

her matrimonial life. Thereafter she used to narrate of being

subjected to ill-treatment, torture and assault at the hands of

the appellants. The victim had submitted an application at the

women cell which was written by one, Firoj Ali. Consequently

the appellant Sanjoy Das was summoned to appear before the

woman cell and submitted a declaration that he would behave

properly with the victim and would not consume alcohol and

refrain from gambling. Thereafter the victim returned to her

matrimonial home along with her husband. However the

undertaking by the appellant was not acted upon and the victim

was subjected to ill treatment and torture which she narrated

whenever she visited her parent's house. After two years from

the death of submission of such undertaking before the woman

cell the victim came to her parents house on the day of Dol-

Purnima and stated that she was assaulted and she came to her

parent's house out of anger. Thereafter appellant Sanjoy Das

and Kartick Das came to the house of P.W 1 and on assurance

that she will not be ill treated any further, she returned to her

matrimonial home. However the incident of ill treatment and

torture continued and appellant got the information that his

daughter was burnt to death by pouring kerosene and by setting

fire. The PW-1 got the information that his daughter was alive

and he had been to Suri Sadar Hospital to see his daughter and

he spoke to his daughter at the hospital. The victim died on the

following day. He identified his signature on the inquest report

and his signature on the written complaint marked as Exhibit-

2/1 and further identified his signature on the seizure list

marked Exhibit-3/1. He further stated that Prafulla Das and

Patongi Das were the wives of Kartick Das. Kartick Das and

Sanjoy Das resided in two separate houses within a common

courtyard. During his cross-examination PW-1 stated that he

had filed an application before the Women's Cell after two years

of marriage of his daughter. He further stated that he got the

information at about 9 PM that his daughter sustained burn

injuries through Kartick Das. When he reached the hospital he

found his daughter with severe burn injuries all over the body

with saline and oxygen being supplied to her and his daughter

was groaning in pain. He had been to the hospital alone to see

his daughter.

8. PW-2 corroborated the evidence of PW-1. PW-2 stated that her

sister came to her parental house on a Dol-Purnima day, six

years ago and narrated the manner in which she was ill-treated

by the accused person. She further stated that she had gone to

the hospital and met her father. Though the victim had

sustained severe burn injuries all over body but she was in her

senses and the victim stated to her that oil was poured on her

person and she was burnt. During her cross-examination PW-2

stated that the victim narrated the attending physician that she

was assaulted by her husband on an earlier occasion though

she could not name the doctor of the government hospital. She

further stated that nothing was asked by the police except

obtaining her LTI on the seizure list and she was deposing about

the incident for the first time in the court.

9. PW-3 was declared hostile by the prosecution.

10. PW-4 the mother of the victim corroborated the statements of

PW-1 and PW-2 with regard to her marriage and torture being

inflicted upon her and settlement at the Women's Cell. PW-4

further stated after her daughter was taken back home through

settlement at Women's Cell she could not say how her daughter

passed her days and thereafter they got the information that her

daughter was burnt and her daughter died at Suri Sadar

Hospital. During her cross-examination PW-4 stated that she

did not go to the hospital to see her daughter at night on getting

the news of burn injury when she reached the hospital on the

following morning she saw the dead body of her daughter. She

further stated that both Sanjoy and Kartick were rickshaw-

puller and passing their livelihood with great hardship and the

victim had given birth to a female child prior to her death and

she did not get any information about the death of her

grandchild. She subsequently got an information that her

grandchild died. She further stated that it is a fact that some

trouble cropped up in the family of my daughter because of

financial stringency. It is a fact that her daughter used to allege

all these things.

11. PW-5 the sister of the victim deposed in the similar manner as

that of PW-1, 2 and 4. During her cross examination PW-5

stated that she did not know anything regarding the settlement

and her sister was taken back by the accused of the first time

again about 3-4 months ago. PW-6 was declared hostile by the

prosecution. PW-7 was described to the complaint marked as

Ext.4. During his cross examination PW-7 stated he did not

make any endorsement in the written application marked as

Ext.4 before the women cell to the effect that it was written by

him as per the narration of the victim and explained to her.

During his examination in chief of recall PW-7 stated that there

was undertaking by the appellant written by him marked as Ext.

6 along with another undertaking by the wife of Sanjoy Das, the

deceased Pushpa Das to put her LTI. He has put his signature

in the same sight undertaking as a witness along with the

signature of Ujjal Mukherjee, as the witness marked Ext. 7. PW-

8 was a medical practitioner, who did not conduct the post-

mortem examination but identified his hand writing and

signature of the doctor P. Chakraborty, who had examine the

patient and noted down the report and treatment sheet marked

as Ext. 5. PW-10 held the inquest over the dead body of the

victim identified by her husband. He identified the inquest

report marked as Ext. 1. PW-13 described of the complaint

marked as Ext. 2. PW-14 received the written complaint and

drew the formal FIR marked Ext. 8. PW-15 was the O.C of the

women cell, who received an application number 18.05.1996

from the victim Pushpa Das marked Ext. 4 and effectuated the

settlement between the victim and the appellant Sanjoy Das,

who had submitted undertaking marked Ext. 6 and 7

respectively. During her cross examination PW-15 stated it was

a fact that she did not initiate any case on the allegation of

Pushpa Das. Moreover no G.D. Entry was noted in the said

application. She did not send the victim to any hospital for

treatment and also did not notice any injury on the person of

Pushpa Das. Ujjal Mukherjee and Firoj Ali were present at the

time of settlement to put their signature. PW-16 conducted the

investigation, he visited the place of occurrence, prepared the

rough sketch map with index, examined the available witnesses

on different days, arrested the accused persons, prepared the

seizure list, collected the post mortem report from office as well

as the inquest report of the deceased on 25.07.1998 and made

over the case to the then OC on transfer. During his cross-

examination he stated that he did not inquire from Suri Sadar

Hospital to ascertain whether victim Puspha Das made any

statement before her attending physician before her death.

During investigation he did not make any attempt to ascertain

whether the letter of Sanjoy Das, a Xerox copy of the same

which was handed over to him by complainant and seized by

him was at all submitted before any authority. He did not seize

or inquire of any paper relating to ill treatment and torture

about upon Puspha Das. He did not send the burn wearing

apparel of the deceased to FSL. PW 17 on completion of

investigation submitted the charge sheet.

12. PW-1 and PW-2 controverted each other's statement on the

point of assumption of the time of torture being disclosed by the

victim. PW-1 stated about two years from the tragic incident on

a Dol-Purnima day while PW-2 submitted the same to be on the

exact day six years earlier. The complaint before the women cell

was insignificantly dealt by the authorities therein as transpired

from the deposition of PW-15, the Officer-in-Charge of women

cell considering the same to be a minor day to day wear and tear

of a family life. There was no G.D. Entry of initiation of a

criminal case. Both the appellant Sanjoy Das and the victim

submitted written declaration to maintain peaceful matrimonial

life. PW-1 and PW-2 stated that the victim after sustaining the

burn injuries was in a condition to speak and narrated the case

of her injury, however the statement of the victim as not

recorded. PW-4 the mother of the victim was surprisingly

unaware of the death of the grandchild i.e. the child of the

victim. The appellants did not possess adequate financial means

and the victim expressed her discontentment over such financial

stringency.

13. The demand for dowry is absent. The prosecution witnesses did

not describe the role of an individual appellant to inflict torture

upon the victim lady. No one saw the victim to be set on fire by

the appellants.

14. Under the facts and circumstances of the case in absence of

proof of commission of the offence by the appellants beyond

reasonable doubt, the prosecution has failed to prove its case

and accordingly the appeal is allowed.

15. The appellants are acquitted of the charges. The appellants if in

custody, be released forthwith if not required in connection with

any other case. The appellants shall, however, furnish a bail

bond to the satisfaction of the trial Court which shall continue

for six months from date in terms of Section 437A of the

Criminal Procedure Code.

16. CRA 255 of 2005 is disposed of accordingly.

17. I record my appreciation for the able assistance rendered by

Mrs. Rituparna Ghosh (De), Learned Advocate, as amicus curiae

in disposing of the appeal.

18. Lower court records along with a copy of this judgment be sent

down at once to the Learned Trial Court for necessary action.

19. Photostat certified copy of this order, if applied for, be given to

the parties on priority basis on compliance of all formalities.

(Ananya Bandyopadhyay, J.)