Calcutta High Court (Appellete Side)
Tapas Ghosh & Ors vs Unknown on 27 February, 2023
27.02.2023 CRA 343 of 2002
S/L. 12
Court No.12 In the matter of: Tapas Ghosh & Ors.
Suvayan/
Sourav
....Appellants.
Mr. Partha Sarathi Bhattacharya
Ms. Swarnali Saha
...for the appellants.
Ms. Zareen N. Khan
Mr. Ashok Das
...for the state.
1.
Perused the report furnished by Mr. Debashis Nag, SI of Police,
Officer-in-Charge, Kalna P.S., Purba Bardhaman to the effect
that Madan Ghosh, appellant No. 2 has expired since 30th
May, 2016. The report is accompanied by the cremation report
issued by the competent authority.
2. In view of such fact the appeal in respect of Madan Ghosh,
appellant No. 2 abates. The report submitted by Ms. Z. N.
Khan, learned Counsel for the State be taken on record.
3. From the report submitted by Superintendent, Baruipur
Central Correctional Home it is found that Tapas Ghosh,
appellant No. 1 has since been released on 06.06.2011 after
suffering the sentence.
4. Mr. Bhattacharya, learned Counsel for the appellants,
therefore, now confine the appeal to appellant No. 3, Pushpa
Ghosh, widow of late Madan Ghosh, appellant No. 2 and
mother of Tapas Ghosh, appellant No. 1.
5. Heard Mr. Partha Sarathi Bhattacharya, learned Counsel
appearing for the appellants and Ms. Zareen N. Khan assisted
by Mr. Ashok Das learned Counsel appearing for the State.
6. This appeal arises out of judgment of conviction and order of
sentence dated 28.08.2002 passed by learned Additional
Sessions Judge, Kalna in Sessions Trial No. 19/2001 arising
out of Sessions Case No. 37/2000 convicting the appellants
under Section 498A/304B IPC and sentencing each of them to
suffer Rigorous Imprisonment for a period of 3 years and to
pay fine of Rs. 5,000/- each, in default to suffer R.I. for 1 year
more each for the offence committed by them under Section
498A IPC and Rigorous Imprisonment for 10 years for the
offence committed by each of them under Section 304B IPC
with a further direction that both the sentences to run
concurrently.
7. This is a case of death of the deceased in suspicious
circumstance. The occurrence happened on 01.04.1997. On
the very next day FIR was lodged by P.W. 1, father of the
deceased alleging that one and half year prior to the date of
occurrence marriage between appellant No. 1, Tapas Ghosh
with his daughter, Tapasi Ghosh (deceased) had been
solemnized according to the Hindu Customs and Rites. After
marriage, deceased Tapasi Ghosh came to reside in the house
of her in laws. At the time of marriage though utensils and
other articles including cash of Rs. 50,000/- were given,
demand was raised for more dowry after the marriage. For
fulfillment of such demand, the appellants, i.e., the husband of
the deceased, father-in-law of the deceased and mother-in-law
of the deceased subjected the deceased to mental and physical
torture and harassment and did not provide her food, etc.
Over the matter, there was a 'salish' between two
families by intervention of the local gentry of the village of the
appellants on the basis of the complaint lodged the P.W. 1
(father of the deceased). After the deceased died, P.W. 1
coming to know about such fact rushed to the hospital where
she found her daughter to be dead. On the next day he lodged
FIR.
The I.O., P.W. 11 took up investigation, such
investigation being entrusted to him. He seized the
incriminating articles, examined some witnesses and
submitted charge-sheet against the appellant and others for
offence under Sections 498A/302/34 IPC. In course of
framing of charge learned Trial Court, however, framed charge
under Sections 498A/304B IPC against all the appellants.
8. Prosecution examined 11 witnesses to bring to whom the
charge against the appellants. P.W. 1, is the father of the
deceased and the informant. P.W. 2 is one of the co-villager of
the appellants. He had attended the 'salish' on the complaint
of P.W. 1. P.W. 3 is another co-villager of the appellants but
he having not supported the prosecution case was declared
hostile. P.W. 4 is also co-villager of the appellants. He had
also attended the 'salish' on the basis of complaint by P.W. 1.
P.W. 5 is another co-villager of the appellants but his evidence
is inconsequential and he has no direct knowledge regarding
the incident. P.W. 6 is the A.S.I. who conducted inquest over
the dead body in presence of the witnesses and challaned the
dead body for postmortem. P.W.s 7 and 8 are two official
witnesses to some seizures. P.W. 9 is the constable who had
taken the dead body for postmortem. P.W. 10 is the medical
officer who conducted postmortem and proved the postmortem
report vide exhibit 7 and the chemical examination report of
viscera vide exhibit 8. P.W. 11 is the I.O.
Defence plea is one of complete denial and false
implication but no evidence has been adduced by the defence.
9. Learned Trial Court relying on the evidence of P.W.s 1, 2, 4, 10
and 11 has returned the finding of guilt as against the
appellants under Sections 498A/304B IPC.
It is pertaining to mention here that the appellant No. 1,
i.e., husband of the deceased has already been released from
custody after serving sentence including the default sentence.
The appellant No. 2, Madan Ghosh, i.e., father of the
appellant No. 1 and husband of appellant No. 3 having
expired in the meantime, the appeal has abated against him.
In view of such development during pendency of the appeal,
Mr. Bhattacharya, learned Counsel for the appellants confines
the appeal to appellant No. 3, Puspa Ghosh i.e., mother-in-law
of the deceased.
10. From the evidence of P.W. 1, it is found that he has made no
specific allegation against appellant No. 3 (Puspa Ghosh). His
allegation is against the appellant No. 1, Tapas Ghosh in as
much as he (P.W. 1) has testified to the effect that during his
presence once his son-in-law, Tapas Ghosh had assaulted his
daughter Tapasi Ghosh (deceased). The other allegations
regarding demand of dowry and subjecting the deceased to
physical and mental torture is quite omnibus in nature against
all the appellants including appellant No. 3.
11. Though, there are contradictions in the evidence of P.W. 1 in
as much as he has omitted many things which he has testified
for the first time in Court, in the FIR and such FIR having been
confronted to him he has given some evasive reply only.
Despite such fact P.W. 1 is stated to have been corroborated by
P.W. 2 and P.W. 4 who had attended the 'salish' being the co-
villagers of the appellants. P.W. 2 has testified that there were
some ill fillings between the spouse and he attended a meeting
to settle their ill fillings. He has further testified that he had
heard that their dispute was in relation to family matters and
dowry. P.W. 2 has never stated that there was ill filling
between the deceased and members of the family of her in
laws. P.W. 2 is the person who had come to attend the 'salish'
on the basis of compliant made by P.W. 1, who is non-other
than the father of the deceased. P.W. 2 is very specific about
the fact that there was little difference between the spouse. He
has never stated anything against appellant no. 3, mother-in-
law of the deceased. In view of such specific evidence, the
mother-in-law (appellant no. 3) cannot be dragged to be
implicated in the offence alleged. P.W. 4 who is another co-
villager of the appellants' had also attended the 'salish'. He
has specifically testified that he had been to the house of the
appellants as there was dispute; following that dispute he
(P.W. 1) came to us and made a complaint; they (P.W.s 2, 3
and 4) tried to solve the dispute of the parties. In the cross-
examination he has specifically testified that it was a simple
family feud. This witness P.W. 4 has not stated anything
about dowry and has made no allegation against appellant no.
3.
12. Both P.W.s 2 and 4, though have stated about family
feud/dispute. They have not stated anything about the
relationship between the appellants and the deceased and the
action of the appellants in subjecting the deceased to physical
and mental torture etc. for fulfillment of demand of dowry.
They being the co-villagers of the appellants, they could have
told impartially about that. They having been invited by P.W.
1 to sit in the 'salish', P.W. 1 could have told them about the
physical and mental harassment and torture meted out to his
daughter. P.W. 1, it seems, has also not stated anything to
P.Ws 3 and 4 about the facts of the deceased being subjected
to torture and harassment for fulfillment of demand of dowry.
13. In view of such nature of evidence, we are constrained to hold
that appellant No. 3 cannot be held to be liable for offence
under Section 498A IPC. Coming to the next question of
complicity of appellant No. 3 in the offence under Section 304B
IPC it is an admitted fact that the deceased herself had taken
poison. Post mortem examination report vide exhibit 7 is
indicative of the fact that she was pregnant at that time,
though the medical officer, P.W. 10 had not whispered
anything about such fact in the Court. The C.E. report, vide
exhibit 8 though not proved properly, is indicative of the fact
that the death of the deceased was caused by ingestion of
poison. There being no external injuries or mark of violence on
the dead body of the deceased, it is to be held that the
ingestion of poison by the deceased was voluntary in nature
and nobody forced her to take poison. In absence of prove to
the effect that soon before her death the deceased had been
subjected to harassment by the appellants for in connection
with any demand for dowry, presumption under Section 113B
of the Evidence Act cannot be raised.
Coming to the question of P.W. 3 committing the offence
under Section 304B IPC, we find that no question
incriminating the appellant No. 3 has been put to her in her
examination under Section 313 Cr.P.C. Such fact would go to
suggests that there was nothing on record against appellant
No. 3 so far as the offence is concerned and in a formal
manner all the appellants have been put the same questions in
their statements recorded under Section 313 Cr.P.C.
14. To sustain a conviction under Section 304B IPC, it is the
settled law that the phrase "soon before her death" used in
Section 304B IPC must be interpreted to be proximately before
the death of the wife and not immediately prior to her death.
Even we apply the aforesaid test to the facts of the case as
obtained on record, we find that there is nothing on record to
show that appellant No. 3 was in any manner instrumental to
any proximate cause of commission of suicide by the deceased.
15. Regard being had to our discussion (Supra), we are persuaded
to hold that the appellant No. 3 is entitled to be acquitted.
16. Accordingly, the impugned judgment of conviction and order of
sentence passed against the appellant No. 3, Puspa Ghosh by
learned Additional Sessions Judge, Kalna in Sessions Trial No.
19/2001 arising out of Sessions Case No. 37/2000 are set
aside.
17. The appellant No. 3, Puspa Ghosh being stated to be on bail,
be discharged of the bail bond.
19. Accordingly, the appeal being CRA 343 of 2002 is allowed.
20. Let a copy of this judgment along with LCR be sent down to
the Trial Court forthwith.
21. Urgent xerox certified copy of this order, if applied for, be given
to the parties, upon compliance of necessary formalities.
22. Judgment dictated in open Court.
(Chitta Ranjan Dash, J.)
(Partha Sarathi Sen, J.)
