Prabir Ganguly & Anr vs The State Of West Bengal
2023 Latest Caselaw 809 Cal

                                     1


                 IN THE HIGH COURT AT CALCUTTA
                CRIMINAL APPELLATE JURISDICTION
                         APPELLATE SIDE


Present:
The Hon'ble Justice Debangsu Basak
              And
The Hon'ble Justice Md. Shabbar Rashidi

                        C.R.A. 372 OF 2021
                                With
                      IA No.: CRAN 1 of 2022

                       Prabir Ganguly & Anr.
                                VS.
                      The State of West Bengal

For the Appellants : Mr. Abhra Mukherjee
                     Mr. Sauradeep Dutta
                     Mr. S.K. Mondal

For the State    :   Ms. Zareen N. Khan
                     Mr. Ashok Das


Heard on         : January 31, 2023
Judgment on      : January 31, 2023


DEBANGSU BASAK, J.:-

1.

In assailment is the judgment of conviction dated

December 6, 2021 and the order of sentence dated December

7, 2021 passed by the learned Additional District and Sessions

Judge, Fast Track Court No.2, Purulia in Sessions Trial

No.19/2021 arising out of Sessions Case No.35/2021

convicting the appellants under Section 304B of the Indian

Penal Code, 1860 and Section 4 of the Dowry Prohibition Act,

1961.

2. By the impugned order of sentence, the appellants were

sentenced to suffer simple imprisonment for ten years for the

offence punishable under Section 304B of the Indian Penal

Code, 1860 and simple imprisonment for six months for the

offence punishable under Section 4 of the Dowry Prohibition

Act, 1961 and a fine of Rs.5,000/- and, in default, to suffer

imprisonment for another six months. The sentence were

directed to run concurrently. The periods of detention

undergone by the appellants during investigation and trial

were directed to be set off under Section 428 of the Criminal

Procedure Code.

3. At the trial, the case of the prosecution was that, Roma

Ganguly was given in an arranged marriage with Prabir

Ganguly in the year 2015. At the time of the marriage, Prabir

and his mother demanded a sum of Rs.2 lakhs from the father

of Roma as dowry. Father of Roma failed to give such money.

Since completion of one year of marriage, Prabir and his

mother used to quarrel with Roma and used to say that they

would kill her if she failed to pay the money. Roma used to

complain about the same to her parents at her parental home.

The parents of the Roma went to Mumbai to work to earn the

money for the dowry. Roma used to confide with the de facto

complainant with regard to the torture meted out to her.

According to the prosecution, Prabir murdered Roma by

strangulation and thereafter bring her to Purulia Sadar

Hospital where Roma was declared dead by the doctor

attending her.

4. On completion of the investigations, police submitted a

charge sheet against the appellants. The Court framed

charges against the appellants under Sections

498A/304B/302/34 of the Indian Penal Code, 1860 and

under Sections 3 and 4 of the Dowry Prohibition Act, 1961 on

July 29, 2021.

5. The appellants pleaded to be not guilty and claimed to be

tried. At the trial, the prosecution examined twelve witnesses

and relied upon documentary and material evidences. On

conclusion of the evidence of the prosecution, the appellants

were examined under Section 313 of the Criminal Procedure

Code where they claimed themselves to be innocent and falsely

implicated. They declined to adduce any defence witness at

the trial.

6. Learned Advocate appearing for the appellants submits

that the prosecution failed to prove the case beyond all

reasonable doubt. He submits that, the prosecution failed to

produce any eyewitness of the incident. The prosecution relied

upon circumstantial evidence. According to him, the chain of

circumstances were not proved beyond all reasonable doubts

and not completed so as to allow an inference of guilt of the

appellants.

7. Learned Advocate appearing for the appellants submits

that, the identity of the body of the victim sent for post-

mortem is in doubt in view of the contents of the two inquest

reports and the post-mortem report. He submits that, two

inquests were performed on the dead body of the victim; one

by the police and the other by the Magistrate. In both the two

inquest reports, one injury on the body was noted whereas,

during the course of post-mortem examination, the post-

mortem doctor found eleven injuries. He refers to the

deposition of the post-mortem doctor being P.W.11 and

submits that, in his cross-examination, he stated that he did

not verify the identity card on the dead body. Consequently,

the benefit of the doubt should be afforded to the appellants.

8. Learned Advocate appearing for the State submits that

the prosecution was able to prove the case beyond all

reasonable doubts. He refers to the deposition of the

prosecution witnesses. He contends that, the dead body of the

victim was identified by the elder sister of the victim. He refers

to the deposition of the post-mortem doctor being P.W.11 in

this regard. Therefore, according to him, there was no doubt

as to the identity of the dead body. He refers to the contents

of the post-mortem report and the deposition of the post-

mortem doctor being P.W.11. According to him, the victim

suffered an unnatural death. The appellants could not give

any explanation as to the death of the victim at the

matrimonial home. The appellants failed to discharge their

onus under Section 106 of the Evidence Act. Therefore, the

conviction of the appellants under Section 304B of the Indian

Penal Code should be sustained. So far as the charges under

Sections 3 and 4 of the Dowry Prohibition Act, 1961 are

concerned, learned Advocate appearing for the State submits

that, the prosecution was able to prove that there were

demands for dowry made to the family of the victim within two

years of marriage and that such demand for dowry continued

over a period of time. Therefore, according to him, the

conviction under the provisions of Section 4 of the Dowry

Prohibition Act, 1961 was correct.

9. P.W. 1 is the elder sister of the victim who lodged the

police complaint. She narrated about the demand for dowry

that the appellants used to make to the victim and onwards to

the parental family of the victim. She stated that she was told

about the demand for dowry and the torture meted out on the

victim by the victim herself on a number of occasions. She

stated that on October 2, 2020, the mother-in-law of the

victim did not give the victim any food and kept her unfed.

From the morning of October 3, 2020, both the appellants

started severe torture upon the victim. She tendered the

written complaint in evidence which was marked as Exhibit-1.

She identified her signature on the police inquest report which

was marked as Exhibit-2/1. She also identified her signature

on the magisterial inquest report which was marked as

Exhibit-3/1. She identified her signature on the seizure list

which was marked as Exhibit-4/1.

10. In cross-examination, P.W.1 stated that, the parents of

the victim could not make payment of Rs.2 lakhs as demanded

by Prabir. She said that, the victim left a male child whose age

was five years as on August, 2021.

11. P.W.2 is a neighbour of the appellants. He said in his

testimony that, he saw Prabir to take victim on his lap by a

Toto. He identified his signature on the seizure list dated

October 6, 2020 which was marked as Exhibit-5/1. In cross-

examination, he stated that his house was at a distance of

approximately 60 cubits from the matrimonial house of the

victim.

12. A maternal uncle of the victim deposed as P.W.3. He

narrated about the trouble in the married life of the victim and

her husband. He stated that, the victim alleged to his sister

that she was not getting sufficient food. There were troubles

in the family. Moreover, the appellants used to assault her.

In cross-examination, he stated that he never made complaint

to any of the neighbours regarding the torture and insufficient

food of the deceased at her matrimonial home.

13. A sister of the victim deposed as P.W.4. She stated that

at the time of marriage, it was settled that Rs.2 lakhs would be

given to Prabir later when possible. The mother of Prabir

subsequently began to demand that money from the victim

and threatened in default she would kill the victim. She

claimed that the appellants killed the victim by strangulation

on October 3, 2020.

14. In cross-examination, she stated that she did not witness

the incident. However, she noticed a mark on the throat of the

victim.

15. The husband of the de facto complainant deposed as

P.W. 5. He narrated as to how the police complaint was

lodged.

16. The father of the victim deposed as P.W. 6. He stated

that, at the time of marriage, the appellants demanded a sum

of Rs.2 lakhs from him. When he expressed his inability to

meet the demand, the appellants told him to make payment

later and allow the marriage to be solemnized. After marriage,

the victim went to her matrimonial home and started to reside

there with the appellants. The victim resided peacefully for

about one year after marriage. Thereafter, the victim used to

tell him that he should give the amount of Rs.2 lakhs to the

appellants as per demand. He, however, expressed his inability

to meet such demand. Thereafter, he went to Mumbai for

earning money. On October 3, 2020, the victim told him over

phone that the appellants were telling her that Prabir would

marry again and that he selected another lady for marriage if

the demand was not met. At around 3 PM, Prabir told him

over phone that he killed the victim. At that time, he was in

Mumbai. After receiving such phone call, he called the

neighbours of his elder daughter. He identified both the

appellants in Court.

17. In cross-examination, he stated that he spoke to Prabir

on October 3, 2020 at first at 11 AM and for the second time

at 3 PM. He did not file any written complaint to any authority

regarding the torture of his daughter. The marriage of his

daughter was solemnized without giving any dowry. He

further stated that excepting the admission of Prabir of killing

the victim, there was no personal knowledge whether the

victim died due to accident or committed suicide.

18. A constable who identified the dead body of the victim at

the time of postmortem deposed as P.W. 7. He identified his

signature on the dead body challen which was marked as

'Exhibit-6/1'. He stated that after the postmortem

examination, he made over the dead body along with the

wearing apparels of the victim and other items to his officer,

who seized the same. He identified the signature on such

seizure list. It was marked as 'Exhibit-7/1'.

19. The police personnel who performed the inquest on the

dead body of the victim deposed as P.W. 8. He tendered the

inquest report which was marked as Exhibit-2.

20. A police personnel who accompanied the P.W. 8 to

Purulia, and held the inquest over the death of the victim

deposed as P.W. 9. The police personnel who signed on two

seizure lists deposed as P.W.-10.

21. The postmortem Doctor who performed the postmortem

examination on the dead body of the victim deposed as P.W.-

11. He stated that, the dead body was brought and handed

over by the police constable being P.W. 7 and identified by the

elder sister of the victim being P.W.-1. He noted 11 external

injuries on the dead body of the victim. He opined that, the

death was due to the effect of manual strangulation which was

ante-mortem and homicidal in nature.

22. In cross-examination, P.W. 11 stated that, he did not

identify the Identity Card of the victim prior to the conduct of

the postmortem. The police personnel who conducted the

investigations deposed as P.W.-12. He narrated about the

investigations in the police case.

23. As noted above, in the examinations of the appellants

under Section 313 of the Criminal Procedure Code, the

appellants claimed themselves to be innocent and falsely

implicated. Prabir claimed that he loved the victim very much.

He claimed that the marriage happened only by exchange of

garlands. Kalpana also claimed her innocent and to be falsely

implicated in her examination under Section 313 of the

Criminal Procedure Code.

24. The postmortem report of the victim being Exhibit-9 read

with testimony of the Doctor conducting the postmortem of the

victim being P.W.-11 establishes that, the victim died an

unnatural death.

25. Evidence of prosecution witness being P.W-1, squarely

implicates both the appellants in the demand for dowry

and/or torture being meted out to the victim during her

lifetime for the failure of the parents of the victim to pay the

demand. P.W. -1 stated that, the victim used to confide in her

about the torture meted out to her by the appellants as well as

the demand for dowry made. Other prosecution witnesses

being prosecution witness nos. 3, 4 and 6 corroborated such

statements of P.W.-1.

26. Therefore, according to us, the prosecution was able to

prove that there was demand for dowry made by the

appellants to the victim. The prosecution was also able to

establish that, the victim was subjected to torture on the

ground of demand for dowry.

27. The marriage between Prabir and the victim took place on

May 9, 2015. The victim was found dead on October 3, 2020.

Therefore, the incident was within six years of the date of

marriage.

28. The contention on behalf of the appellants that, the

postmortem report was suspect in view of the postmortem

Doctor finding 11 injuries as against one injury in the two

earlier inquest reports as well as the fact that the dead body of

the victim was not identified prior to the conduct of the

postmortem examination, with the deepest of respect, cannot

be sustained in the facts and circumstances of the present

case.

29. Inquests are not performed by professional experts. The

person conducting the inquest may miss out injuries on the

dead body which may be discovered on a postmortem

examination by a professional Doctor. In the facts of the

present case, there were two inquests, one by the police and

one by the Magistrate prior to the postmortem being

conducted. None of them were professional medical experts.

30. The dead body of the victim was identified by police

constable being P.W. 7 as well as by the elder sister of the

victim, being de facto complainant, P.W. 1, Therefore, there is

no material to doubt the identity of the dead body of the

victim. The suggestion put to the postmortem Doctor in cross-

examination as to whether the Doctor checked the Identity

Card of the victim is preposterous.

31. In such circumstances, we find no ground to interfere

with the impugned judgment of conviction and the order of

sentence.

32. We affirm the same.

33. Period of detection undergone by the appellants during

investigations, trial and the pendency of the appeal be set off

under Section 428 of the Criminal Procedure Code.

34. The sentences will run concurrently.

35. CRA 372 of 2021 is dismissed.

36. In view of the dismissal of the appeal, nothing survives in

the application being, CRAN 1 of 2022, which is disposed of

accordingly.

37. Trial Court records be remitted to the appropriate Court

forthwith.

38. Photostat certified copy of this judgment, if applied for,

be given to the parties on priority basis on compliance of all

formalities.

(Debangsu Basak,J.)

39. I Agree.

(Md. Shabbar Rashidi, J.)

Dd/AD