Raja Dey & Ors vs The State Of West Bengal
2023 Latest Caselaw 3865 Cal

                                  1


              IN THE HIGH COURT AT CALCUTTA
                Criminal Revisional Jurisdiction
Present: -      Hon'ble Mr. Justice Subhendu Samanta.
                      C.R.R. No. - 3686 of 2017


                       IN THE MATTER OF

                          Raja Dey & Ors.
                               Vs.
                      The State of West Bengal

For the Petitioners         : Mr. Bibaswan Bhattacharya, Adv.,
                              Mrs. Bindia Paul, Adv.,

For the State                : Mrs. Anasuya Sinha, Adv.,
                               Mr. Pinak Kumar Mitra, Adv.,




Judgment on                   :       16.06.2023



Subhendu Samanta, J.

This is an application u/s 401 read with section 482 of

the Code of Criminal procedure preferred against a judgment

and order passed on 30th October 2017 by the Learned

Sessions Judge Dakhin Dinajpur, Balurghat dismissing the

criminal appeal 14 of 2017 and affirming the order of

conviction and sentence passed by the Learned Chief judicial

Magistrate Dakhin Dinajpur, Balurghat in connection with GR

Case No. 770 of 2009 arising out of Balurghat Police station

case no. 336 of 2009 whereby the petitioners were convicted

u/s 498 A/34 IPC and sentence to suffer RI for 6 months each

and to pay Rs 1000 each, in default to suffer SI for one month

each.

Three petitioners preferred this instant revisional

application. During the continuation of the instant revision the

petitioner no. 2 and petitioner no. 3 expired, thus their name

was expunged from the criminal revision. The instant criminal

revision is now being proceeded by the present petitioner no. 1.

Viz- Raja Dey Petitioner no. 1 married the de facto-

complainant Babli Dey in the year 2004 according to Hindu

Rites and Customs. Out of that wedlock a male child was born

in the year 2008.

The brief fact of the case is that the de facto-

complainant namely Babli Dey lodged an FIR against the

present petitioner before the Balurghat Police Station being

case no. 336 of 2009 dated October 13, 2009 u/s 498

A/325/34 IPC.

Investigation of the police ended in the charge shet

against the all petitioners subsequently all three petitioners

were placed on trial before the Learned CJM Dakhin Dinajpur

at Balurghat.

During the trial 10 witnesses were examined by the

prosecution but the defence adduced none. After the

conclusion of the trial and after hearing all the parties Learned

Chief Judicial Magistrate convicted the present petitioner u/s

498 A/34 IPC. Being aggrieved by the said order of conviction

the petitioner preferred an appeal before the Learned Sessions

Judge Dakhin Dinajpur, Balurghat which is registered as

criminal appeal no. 14 of 2017. After hearing the appellants

and the state Learned Sessions Judge dismissed the appeal

and the judgment and order of conviction passed by Learned

CJM was affirmed.

Hence this revision.

Learned Advocate for the petitioner submitted before this

court that the judgment of both the trial court and appellate

court suffers no consideration of material evidences. The

impugned order of conviction is illegal in the eye of law. the

findings of the Learned Appellate Court is actually perverse.

Both the trial court and the appellate court did not consider

the statement of independent witnesses namely PW 2, PW 4

and PW 5 who are the independent witnesses/neighbours of

the matrimonial home of the de facto complainant. The

evidence of PW 7 can not be believed as he was never

interrogated by the IO in the case and he is an interested

witness. PW 1, that is the de facto complaint stated about

sustaining injury at her eye but no cogent medical certificate or

evidences were adduced by the prosecution to support the

injury of the de facto complainant. Evidence of PW 7, PW 8 and

PW 9 cannot be believed as their statement is contradicted.

Further more the de- facto complainant stated that she was

treated at Red Cross hospital, while her twin sister PW 8 stated

that the de- facto complaint was treated by a local doctor. No

local Dr. was adduced on behalf of the prosecution in this case.

Learned Advocate for the petitioner further argued that it is

perverse finding of the Learned Appellate Court that the

Streedhan article of the de facto complainant was kept at her

matrimonial home by the present petitioners. The questions

put to the accused petitioners u/s 313 Cr.P.C. is not at all

specific to the points which was put forward during the

examination of PWs. The appreciation of evidence by the

Learned CJM as well as by the Learned Sessions Judge is

palpably wrong. Learned Sessions Judge has misguided

himself only to believe the statement of interested witnesses.

Under such circumstances the petitioner prayed for setting

aside the impugned order of conviction and sentence.

Learned Advocate for the respondent, the state submitted

before this court that the present revisional Court has no

power to go into the merit of the evidences adduced before the

learned Magistrate. This is a court of revision and no second

appeal is permitted under the Criminal Procedure Code, thus

the revisional court only permitted to looked into the perversity

of finding of the Learned Appellate Court. He further argued

that the judgment passed by appellate court is very much

cogent and cannot be altered in the present facts and

circumstances of this case. He also argued that the finding of

appellate court on the basis of the order of conviction is very

well maintainable thus there is no scope to interfere.

Heard the Learned Advocate perused the impugned

judgment passed by the appellate court as well as the order of

conviction recorded by the Learned CJM. The order of

conviction was passed u/s 498 A/34 of IPC. Present petitioner

no. 1 is the husband, petitioner no. 2 is the father- in- law and

the petitioner no. 3 is the mother- in- law of the de-facto

complainant. The present petitioner no. 1 is only revisionist

here. It is to be looked into whether the order of conviction

passed by the Learned CJM and affirmed by the Learned

Appellate Court in respect of the petitioner no. 1 husband is

maintainable or not.

Factually the FIR disclosed the allegation of torture

inflicted by the present petitioner upon the de facto complaint

and his minor son. The FIR also stated about the dowry

demand of Rs 50000/-.

The de- facto complainant was examined as PW 1 who

deposed that she was subjected to physical and mental torture

on her matrimonial home by her husband and in laws on the

demand of dowry. It was further alleged in the FIR that on the

day of incident she was physically assaulted by her husband

and sustained injury at her. Thus she had to left her

matrimonial home soon. However at the later stage no

evidences was produced by the prosecution to prove the

assault thus there is no record of conviction u/s 323 or 325

IPC. The torture meted out upon the de- facto complainant on

the demand of dowry was also corroborated by PW 3 (father)

PW 7, PW 8, PW 9, PW 7 is the husband of the sister of the de-

facto complainant; some statement of PW 7 recorded at the

time of cross examination was pointed out before this court to

prove that the PW 7 is not trustworthy and he is an interested

witness.

I have perused the evidence of PW 7. The basic factum of

torture meted out upon the de facto complainant is appears to

be corroborated by PW 7. Thus, I find there is no infirmity in

the evidence of PW 7, though in some places of his statement

there are some discrepancies, but it cannot be said to be

unreliable.

The evidences of PW 3 PW 8 PW 9 cannot be discarded

on the ground that they are the near relatives of the de facto

complaint.

The term 'cruelty' which is the key factor to decide this

case is defined in the Black Law Dictionary as "the intentional

and malicious infliction of mental or physical suffering on a

living creatures, especially, of human, abusive treatment;

outrage (abuse inhuman, treatment, indignity)."

The explanation of Section 498 A IPC specifically

clarified the term "cruelty".

Explanation.--for the purpose of this section, 'cruelty' means--

(a) Any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman;

(b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any persons related to her to meet demand.

In this case it has been alleged that the de facto

complainant was subjected to both physical and mental torture

on the demand dowry of Rs 50000/- at her matrimonial home

by her husband and in-laws. The evidence was adduced to the

effect by the de facto complainant supported by the other 4

witnesses. It is the argument of the Learned Advocate for the

Petitioner that a finding of the Learned Appellate court is

perverse to the effect that Appellate court only believed the

statement of close relatives of the de- facto complaint but not

put any emphasis in the statement of neighbours.

It appears from the impugned judgment of the sessions

Judge that he has clarified his stand for believing the

statement of near relatives on the ground that in Indian Society

the married Women are being subjected to mental and Physical

torture at her matrimonial home and usually they did not utter

such torture to the outsiders of their family. Learned Sessions

Judge is also of view that the information of such physical and

mental torture must be there with the close relatives of the de

facto complainant that is his father mother and sister.

Considering the view of the Learned Sessions Judge I think it is

justifiable for the Learned Sessions Judge to hold such

observations.

The "cruelty" upon a married lady was alleged by

victim/de-facto complainant by her testimony. She deposed

that she was subjected to cruelty on the demand of further

dowry. The statement of the victim got corroboration from the

statements of other reliable witnesses.

The defence has failed to produce any evidence or

circumstances by which the case of the prosecution can be

disbelieved.

I further find that the impugned order of conviction

passed by the Learned Magistrate is on the basis of materials

on record and it not at all perverse. Considering the entire

circumstances, I find there are sufficient materials in the

present case to show that the present petitioner No.1 being the

husband has inflicted torture upon the de facto complainant

with the demand of dowry of Rs. 50,000/- at her matrimonial

home.

Accordingly, I find no merit to entertain the instant

Criminal Revision.

Nothing to interfere with the appellate order passed

by the Learned Sessions Judge.

C.R.R. is dismissed.

The order of Learned Sessions Judge passed in

Criminal Appeal No.14 of 2017 is hereby affirmed. The order of

conviction against the present petitioner namely, Raja Dey is

affirmed.

The petitioner Raja Dey is on bail, he is directed to

appear before the Learned CJM concerned on 30th June, 2023

to serve out the remaining part of the sentence. Failing which

Learned CJM shall issue a W/A for the compliance of the order.

Any order of stay/suspension of sentence passed

by this Court during the continuation of the instant revision is

hereby vacated. Connected applications if pending are also

disposed of.

Parties to act upon the server copy and urgent

certified copy of the judgment be received from the concerned

Dept. on usual terms and conditions.

(Subhendu Samanta, J.)