Purnima Patra vs The State Of West Bengal & Ors
2023 Latest Caselaw 1548 Cal

                   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


                             CRA 349 of 2021

                             Purnima Patra
                                   VS.
                     The State of West Bengal & Ors.


For the Appellant : Mr. Bhaskar Seth
                    Mr. Kallol Kr. Maity, Advocates


For the private
respondent nos. 2-5: Mr. Arindam Jana

Mr. Soumyojit Chatterjee, Advocates

For the State : Mr. Saswata Gopal Mukherji, ld. PP Mr. S. S. Imam, Mr. Narayan Prasad Agarwala, Mr. Sandip Kundu, Mr. Pratick Bose, Advocates

Hearing concluded on : March 2, 2023

Judgement on : March 2, 2023

DEBANGSU BASAK, J.:-

1. In assailment is the judgment and order of acquittal dated

October 7, 2021 passed by the learned Additional Sessions Judge,

Fast Track, 1st Court, Contai in Sessions Trial no. 3/April/2014

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arising out of Sessions Case no. 550/October/2013 acquitting the

accused persons of the charges under Sections 498A/313/307 of

the Indian Penal Code, 1860.

2. The case of the prosecution, at the trial, was that, the private

respondents being the husband and relatives of the de facto

complainant, continuously mentally and physically tortured the

de facto complainant. On June 28, 2010, in furtherance of

common intention, the private respondents voluntarily caused the

de facto complainant, then pregnant, to miscarry without her

consent. Such miscarriage was not caused by the private

respondents on good faith. On September 11, 2011, in

furtherance of common intention, the private respondents

attempted to murder the de facto complainant by pouring

kerosene oil on her body and set her saree on fire with the

intention and knowledge that, under such circumstances, it

would cause death to the de facto complainant.

3. The appellant, lodged a written complaint with the police on

November 18, 2011, accusing the appellant of torture, demand for

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dowry causing miscarriage and attempting to murder her. On the

basis of such written complaint, a formal First Information Report

being Contai Police Station Case no. 268 of 2011 dated November

18, 2011 was registered. On conclusion of the investigations,

police filed charge sheet against the private respondents. The

Court framed charges against the private respondents on April 22,

2014 under Sections 498A/313/307 of the Indian Penal Code,

1860.

4. To prove the charges, the prosecution examined 12 witnesses

and relied upon various documentary and material evidences.

5. Learned advocate appearing for the appellant submits that

the appellant was given in marriage at the age of 19 years on July

29, 2008. The private respondents subjected the appellant to

cruelty three months after her marriage. The private respondents

demanded more dowry on the pretext that the articles given in

marriage by the father were not satisfactory.

6. Learned advocate appearing for the appellant submits that,

the appellant under compelling circumstances, informed her

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father as to further demand made by her in-laws. However, the

father of the appellant, due to the financial scarcity, could not

meet such demands. Such inability to meet the demand for

dowry, resulted in physical and mental cruelty, being inflicted

upon the appellant by the private respondents. The private

respondents conjointly tried to kill the appellant.

7. Learned advocate for the appellant submits that on June 26,

2010, the private respondent no. 2 administered drugs to the

appellant in order to cause miscarriage to her. Miscarriage was

ultimately accomplished on June 28, 2010. Thereafter, the

respondent no. 2 attempted to murder the appellant by pressing a

pillow on her mouth while she was sleeping. On September 11,

2011 at about 7 a.m., a dispute cropped up between the appellant

and the respondent no. 2, about the issue of demand for more

dowry. At that time, all the private respondents with the intention

to kill the appellant, encircled her, while the private respondents

poured kerosene oil on her body and set her on fire. Due to such

incident, the appellant sustained grievous burn injuries. The

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appellant, however, managed to defuse the fire. Hearing her hue

and cry, local people rushed to the place of occurrence. In such a

situation, the respondent no. 2 told the appellant that she would

be provided with medical treatment only if she states that cause of

injury was due to burst of stove. The appellant, being in a

helpless condition, conceded to such proposal. The appellant was

first taken to a nursing home for treatment on October 26, 2011.

In such nursing home, the appellant came to know, from the

conversation of the respondents, that they were conspiring

something ill. The appellant intimated her father whereupon, she

was shifted and admitted at Contai sub-divisional Hospital on

October 27, 2011. On November 16, 2011, after being released

by the hospital, on November 18, 2011, she lodged the complaint

with the police station.

8. Learned advocate appearing for the appellant submits that,

the appellant suffered 70% burn injury within three years of

marriage. He refers to the testimony of P.W. 1 as against the

charges under Section 498A of the Indian Penal Code, 1860 read

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with Evidences of P.W.-3, P.W.-4, P.W.-5 and P.W.-6. He submits

that, such prosecution witnesses could not be shaken in cross-

examination. Moreover, if the cross-examination of the

Investigating Officer, being P.W. 13, is taken into consideration, it

would be evident that there was no denial taken as to the

evidence taken by P.W. -1, the victim.

9. Learned advocate for the appellant submits that so far as

charges under Section 307 of the Indian Penal Code, 1860 is

concerned, the testimony of the victim was disbelieved by the

learned Trial Judge on the ground that as to why the victim did

not make complaint regarding the incident to her parents.

According to him, the victim lodged the complaint immediately

after being discharged by the hospital.

10. Learned advocate appearing for the appellant submits that,

the burn injuries were caused by an accident by burst of stove is

unsupported by any evidence. He refers to the evidence of P.W.-8,

P.W.-10 and P.W.-11 and, in particular, to the deposition of P.W.

10. He submits that, defence witness being D.W. 1, is a Doctor

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who was not associated with the Government hospital. He points

out that, the victim did not sustain any injury on the back or any

side of her head/face.

11. Learned advocate appearing for the appellant submits that,

the learned Judge erred in relying upon the evidence of P.W. 1.

He submits that, the claim that the injuries were the result of

accidental burst of stove is self-contradictory.

12. Learned advocate appearing for the appellant submits that,

the trial Court erred in appreciating the evidence placed on

record. He relies upon AIR 2012 SC 3046 [ Dayal Singh & Ors.

Vs. State of Uttaranchal] in this regard. He submits that, the

Court is not required to surrender its judgment to that of the

expert.

13. Learned advocate appearing for the appellant submits that,

the private respondents were required to give explanations as to

the burn injuries that the appellant suffered. He contends that,

maintaining silence by an accused, while under an examination

under Section 313 of the Criminal Procedure Code, is not an

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absolute right. He refers to Section 106 of the Evidence Act. He

contends that, in given facts and circumstances, the accuseds are

bound to give explanation to prove that the accident occurred in

the manner as they are claiming. In support of such contention

he relies upon (2014) 3 S.C.R 551 [Phula Singh vs. State of

Himachal Pradesh] and (2012) 4 SCC 257 [Ramnaresh vs.

State of Chattisgarh].

14. Learned advocate appearing for the appellant submits that,

the private respondent failed to produce the burst stove that they

claimed exploded at the material point of time. In absence of

such proof placed before the trial, he contends that, the

prosecution is able to prove the case against the private

respondents beyond all reasonable doubts.

15. Learned advocate appearing for the State refers to the

evidence on record, particularly, the oral testimonies of the

prosecution witnesses.

16. Learned advocate appearing for the private respondents

submits that, P.Ws. 3 and 4 being the parents of the appellant,

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admitted that they stated about the payment of dowry for the first

time before the learned trial Judge. They never revealed the same

before the Investigating Officer. It is trite law that, where a

witness does not make a statement under Section 161 of the Code

of Criminal Procedure during investigation and makes the same

for the first time before the trial Court, such deposition cannot be

relied upon as chances of prefabrication cannot be ruled out in

such an event.

17. Learned advocate appearing for the private respondent

submits that, P.W. 6 also did not shed any light with respect to

any demand of payment of dowry. He refers to the impugned

judgment of acquittal and submits that, the learned trial Judge

dealt with the issue of Section 498A of the Indian Penal Code,

1860 (IPC) and arrived at a finding that such charge was not

established.

18. Learned advocate appearing for the private respondent

submits that, charge under Section 313 of the IPC was not

established. He refers to the provisions of Section 313 of the IPC.

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He submits that, although, the appellant claimed to be treated by

a certain doctor at the Contai Hospital, such doctor was not

examined at the trial. Moreover, in the evidence of P.Ws. 3 and 4,

being the parents of the appellant, there is no whisper of the

incident of P.W. 3 taking the appellant to Contai Hospital on June

28, 2010.

19. Learned advocate appearing for the private respondent refers

to the finding returned by the learned trial Judge with regard to

the charge under Section 313 of the IPC. He submits that, the

learned trial Judge was correct in finding that such charge was

not established.

20. Referring to Section 307 of the IPC, the learned advocate

appearing for the private respondent submits that, there was no

evidence to sustain such charge. He refers to the deposition of

various prosecution witnesses. He submits that, the appellant

was taken to nursing home first and thereafter shifted to a

government hospital. The appellant stated before the doctors

treating her at the two institutions that, she sustained burn

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injuries due to stove bursting. He contends that the charge under

Section 307 of the I.P.C., is improbable in view of the oral

testimonies of P.Ws. 8, 10, 11 and D.W. 1. He submits that, the

opinion of the D.W. 1 was at the behest of the prosecution.

21. Learned advocate for the private respondent submits that,

before reversing the finding of the learned trial Court, the appeal

Court is required to consider each ground on which the order of

acquittal was based for not accepting the same. He submits that,

there is no material placed on record for the High Court to reverse

the findings returned by the learned trial Judge in the impugned

judgment of acquittal.

22. P.W. 1 is the de-facto complainant of the case. She stated

that, she was married to the respondent no. 2 on July 29, 2008

according to Hindu rites and rituals at her paternal home. At the

time of marriage, her father made over a sum of Rs.60,000/- in

cash to the respondent no. 2 and gold ornaments to her. Her

father spent Rs.1,00,000/- in her marriage. After marriage, she

went to her matrimonial home and started her conjugal life there.

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For the first three months, she lived happily at the matrimonial

home. Thereafter, disputes cropped up. The private respondents

asked her to bring Rs.20,000/- from her father on the pretext that

the articles which were given at the time of marriage by her father

were not up to the mark. She informed such fact to her father.

But her father, however, told her that he was unable to give such

amount as he already spent Rs.1,00,000/- in her marriage.

Thereafter, the private respondents started assaulting her and

abusing her with filthy languages as she could not be able to

bring Rs.20,000/- from her father. P.W. 1 stated that, in the

month of Asarh, 1419 B S, respondent no. 2 pressed a pillow on

her mouth. She informed her father about such incident.

Thereafter, her pregnancy was terminated by way of administering

medicines by the respondent no. 2 and sister-in-law on June 28,

2010. On June 27, 2010, P.W. 1 was taken to her paternal house

by the respondent no. 2. As she was travelling under the sun, she

felt uneasy at that time. The respondent no. 2 asked her to

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swallow a tablet and she took that. Thereafter, the respondent

no. 2 left her at her paternal home.

23. P.W.1 stated that she was bleeding at night at her parental

house. Father took her to the Contai Sub Divisional Hospital

where she was admitted. Doctor of Contai Sub-Divisional Hospital

treated her. She recovered due to such treatment.

24. P.W.1 stated that on September 11, 2011, all the private

respondents set fire on her. Her sister-in-law caught hold of the

locks of her hair, her mother-in-law caught her two hands from

the back, father-in-law poured kerosene oil on the body and set

fire on her. Her husband, the respondent no.2, threatened her

that he would teach her a good lesson. The brother-in-law of the

de facto complainant was standing at the gate to see whether

anybody was coming or not. She was set ablaze. She was rolling

on the ground in order to save herself.

25. Respondent no.2 told her that some persons had come to

their house and if she told them that she got burn due to stove

burst then she would be taken to doctor or hospital or otherwise

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she would not be taken anywhere. Then she was taken to a

Nursing Home near her matrimonial home. She was admitted in

such Nursing Home. She told the Doctor at Nursing Home that

she got burn injury due to stove burst. She was admitted there for

a period of one and half months. Thereafter, she informed the

matter to her father from the Nursing Home. Her father came to

the Nursing Home and shifted her to Contai Sub Divisional

Hospital. She was admitted in the Sub Divisional Hospital for a

period of 19/20 days. Then she came to her parental home after

recovering. P.W.1 identified the written complaint lodged by her

which was marked as Exhibit 1/1.

26. P.W.1 was cross-examined at length. In cross-examination,

she stated that, when she was taken to the Nursing Home she did

not tell the doctor who examined her that her husband asked her

not to deliver the truth or that, she was required to say that she

sustained burn injury due to stove burst. She stated that she read

up to class-X and she stayed at the Nursing Home for one and

half months. She admitted that prior to she being taken to Contai

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Hospital from the Nursing Home, her father visited the Nursing

Home. She could not remember when her father went to the

Nursing Home for the first time. She stated that after half days at

the Nursing Home, she rang up her father from the phone of the

adjacent patient and thereafter her father came to the Nursing

Home.

27. P.W.2, did not add any value to the case of the prosecution

or the defence.

28. P.W.3, is the father of the de facto complainant. He sought to

corroborate the claims made by P.W.1 with regard to marriage

and dowry given at the time of marriage. He stated that he came

to know from P.W.1 that, on the date of the incident, the mother-

in-law of the appellant assaulted her. Such testimony of P.W.3 is

heresay evidence as it is based on the statements claimed to be

learnt from P.W.1. He stated that he did not speak about the

incident to anyone else.

29. P.W.4 is the mother of the appellant. She also sought to

corroborate the statement with regard to the marriage of the

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appellant with the respondent no.2 and the demand for dowry

allegedly made.

30. P.W.5 did not add any value to the case of the prosecution or

the defence.

31. P.W.6, is the family priest of P.W.3. He also sought to

corroborate the fact that cash of Rs.60,000/- and articles of Rs.1

Lakh were given by P.W.3 at the time of marriage of the appellant.

He is not an eyewitness to the incident.

32. P.W.7 is a neighbour of P.W.3. He is not eyewitness to the

incident. He claimed to learn about the incident from P.W.1 and

P.W.3.

33. P.W.8 is a Doctor, who attended the appellant on October

27, 2011. He stated that on examination, he found an old burn

injury suffered on September 11, 2011 and treated at the Nursing

Home. He stated that, the appellant claimed that the burn was

inflicted by the private respondents. He tendered the injury report

of the appellant which was marked as Exhibit 2. He also tendered

the bedhead ticket, which was marked as Exhibit 3.

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34. P.W.9 is a neighbour of the private respondents. He was

declared hostile by the prosecution. On being cross-examined by

the prosecution, he denied the suggestions put to him by the

prosecution. He was cross-examined on behalf of the defence.

35. P.W.10 is a Doctor working with Contai Sub Divisional

Hospital, he stated that on November 14, 2011, he examined the

appellant who was admitted in the hosital with old burn injury on

October 27, 2011. He tendered the injury report of the appellant

which was marked as Exhibit 4. He stated that, in his opinion,

such type of injury may occur very rarely by stove burst. In cases

of bursting of a stove a person may sustain burn injury over the

face. In this case there is no injury over the face of the patient.

36. P.W.11 is another Doctor, who attended the appellant on

October 27, 2011. Appellant was admitted in the Contai Sub

Divisional Hospital under him. He stated that, the injury suffered

by the appellant can be caused by throwing or pouring kerosene

oil on the body of a person. However, he could not say it certainly.

He tendered the five treatment sheets of the appellant and marked

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Exhibit 5 series. He also opined that the type of injury suffered by

the appellant may be possible due to stove burst but it depends

on the position of the patient.

37. The photographer deposed as P.W.12. He tendered the

envelope and the photographs taken by him on the place of

occurrence. Such envelope was marked as Exhibit 6. Photographs

taken by him were marked as Material Exhibit I series. Chip in

which, such photographs were delivered was marked as Material

Exhibit II.

38. The Investigating Officer deposed as P.W.13. He narrated

about the course of investigation. He tendered the formal First

Information Report which was marked as Exhibit 7. He tendered

the rough sketch map with index of the first place of occurrence

which was marked as Exhibit 8. He also tendered rough sketch

map with index of the second place of occurrence which was

marked as Exhibit 9.

39. On conclusion of the evidence of the prosecution, the private

respondents were examined under Section 313 of the Criminal

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Procedure Code. The private respondents examined one defence

witness being a doctor attached to the Nursing Home. Such doctor

as D.W.1, stated that, the appellant was admitted in the Nursing

Home on September 11, 2011 and that, he attended the

appellant. He stated that the appellant was discharged on October

26, 2011. He claimed that the mother of the appellant forced him

to discharge the appellant from Nursing Home. He tendered the

injury report of the appellant which was marked as Exhibit A. He

stated that , the appellant gave a statement which is mentioned in

injury report that she suffered the injury at her own will. In his

opinion, any stove burst may cause such type of injury suffered

by the appellant.

40. The private respondents were charged with Sections

498A/307/313 of the Indian Penal Code, 1860.

41. So far as the charge against the private respondents under

Section 498A of the Indian Penal Code, 1860 is concerned, the

prosecution was unable to bring home such charge. The

prosecution witnesses were not able to prove beyond reasonable

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doubt that, there were torture meted out to the appellant at her

matrimonial home due to demand for dowry or otherwise. In fact,

prosecution failed to establish that any dowry was given.

42. On the aspect of the charge under Section 313 of the Indian

Penal Code, 1860, again, the prosecution failed to establish that

the respondent no.2 administered any medicine on the appellant

and that she suffered an abortion as claimed by her. Significantly,

the Doctor who allegedly treated the appellant, was not examined

by the prosecution. The claims made by the appellant remains

unsubstantiated. Appellant apparently sought medical help with

regard to miscarriage but documents substantiating the same was

not tendered in evidence. In absence of corroboration it would be

improper to take a contrary view than the learned trial Judge.

43. So far as the charge under Section 307 of the Indian Penal

Code, 1860 is concerned the allegation is that the appellant was

sought to be murdered by pouring kerosene oil on her and setting

her ablaze. The appellant did suffer burn injuries. She was treated

in two different medical entities, first at a Nursing Home and

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thereafter, at a Government Hospital. Three doctors on behalf of

the prosecution and one doctor on behalf of the private

respondents, in total four doctors treated the appellant at

different points of time in two institutions. None of the doctors

ruled out the possibility of the injury of the nature as suffered by

the appellant, being caused by a stove burst. Even the Doctor

examined on behalf of the prosecution could not

confirm that the burn injuries suffered by the appellant could not

be caused by stove burst.

44. When there is an element of doubt, obviously, the benefit

goes in favour of the accused. Here, the prosecution was unable to

prove beyond reasonable doubt that, the injury suffered were

actually inflicted by the private respondents and not due to stove

burst.

45. It is the contention of the appellant that, the stove said to be

burst was not produced by the defence to establish that the

appellant suffered burn injuries through a stove burst.

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46. With the deepest respect, it is for the prosecution to

establish the charges beyond reasonable doubt. All that the

defence is required to do is to demonstrate the charges were not

established by the prosecution beyond reasonable doubt. Again,

in the facts and circumstances of the present case, there is a

doubt as to whether, the burn injury suffered by the appellant

were due to the stove burst or pouring of kerosene on her as

claimed by her.

47. It is trite law that, unless, the impugned judgement of

acquittal is demonstrated to be perverse or that the learned trial

Judge overlooked relevant material and arrived at a wrong

conclusion, the view expressed by the learned trial Judge, if

plausible is to be accepted.

48. We find no material to arrive at a finding that the views

expressed by the learned Trial Judge in the impugned judgement

and order of acquittal is perverse.

49. Phula Singh (supra) was rendered in the context of

Prevention of Corruption Act, 1988. While dealing with powers

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under Section 313 of the Criminal Procedure Code, it held that,

an accused was under a duty to furnish an explanation in

statement regarding any incriminating material that was

produced against him failing which the Court would be entitled to

draw adverse inference as against him as noted above.

50. Ramnaresh and others (supra) dealt with a situation of a

gang rape and murder. In such context, it dealt with the

provisions of Section 313 of the Criminal Procedure Code. It noted

that the accused may then remain silent or consequently deny the

incident when his statement under Section 313 of the Criminal

Procedure Code is being recorded. The Court is also entitled to

draw an inference including adverse inference as may be

permissible in accordance with law.

51. In the facts and circumstances of the present case, experts,

who came to depose at the time, both on behalf of the prosecution

as well as on behalf of the defence did not negate the possibility of

the injuries being suffered by the appellant due to stove burst.

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Therefore, in such context, denial by the accused cannot lead to

an adverse inference being drawn as against the accused.

52. Dayal Singh & ors. (Supra) is of the view that the Court

normally look at expert evidence with a great sense of

acceptability. It is equally true that facts are not absolutely guided

by the report of the expert specially when such reports are

perfunctory and unsustainable and the result of a deliberate

attempt to misdirect the prosecution. Where the eye-witness

account is found credible and trustworthy, medical opinion

pointing to alternative possibilities may not be accepted as

conclusive.

53. In the facts of the present case, apart from testimony of

P.W.1 that the private respondents put kerosene oil over her and

set her on fire, there is no other eyewitness to the incident

examined on behalf of the prosecution. She also did not complain

contemporaneously that the respondents set fire on her.

54. Four doctors who treated the appellant were examined at the

trial; three on behalf of the prosecution and one on behalf of the

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defence. As noted above, all the four doctors did not negate the

possibility of the appellant suffering the burn injuries due to a

stove burst.

55. The appellant was in the first Nurshing Home for a period of

one and half months. She did not make any complaint

contemporaneously that fire was set on her by the private

respondents. She admitted in her cross-examination that her

father came to meet her after half days of first admission at the

Nursing Home. She did not confide to her father that she was set

ablaze by the in-laws.

56. The justification of the appellant in not confiding with either

the doctors treating her initially or the police that she was set

ablaze by the private respondents or that, the respondent no.2

told her that if she did not say that she suffered injuries by a

stove burst, she would not be treated. Such justification, does not

stand scrutiny in view of the fact that, her father visited her at the

Nursing Home at an early stage. She was ultimately shifted to the

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Contai Sub Divisional Hospital by the parents. Therefore, the

appellant was not left alone for her treatment.

57. In such circumstances, we find no merit in the present

appeal.

58. CRA 349 of 2021 is dismissed.

59. It is accepted at the bar that, the respondent no.2 paid a

sum of Rs.61,500 /- to the appellant being the amount due to the

appellant in terms of proceeding for maintenance

60. Copy of this judgement and order along with the trial court

records be transmitted to the jurisdictional court for appropriate

orders forthwith.

61. Urgent photostat certified copy of this order, if applied for, be

given to the parties on priority basis on compliance of all

formalities.

[DEBANGSU BASAK, J.]

62. I agree.

[MD. SHABBAR RASHIDI, J.] DD/Kaushik/CHC

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