Aloke Mondal & Ors vs State Of West Bengal & Anr
2023 Latest Caselaw 2087 Cal

                IN THE HIGH COURT AT CALCUTTA
                 CRIMINAL APPELLATE JURISDICTION
                         APPELLATE SIDE

Present:
The Hon'ble Justice Joymalya Bagchi
                  And
The Hon'ble Justice Ajay Kumar Gupta

                             C.R.A. 483 of 2017

                        Aloke Mondal & Ors.
                                 -Vs-
                     State of West Bengal & Anr.


For the Appellants       :      Mr. Arnab Chatterjee, Adv.
                                Mr. Dhanasree Biswas, Adv.
                                Ms. Poulami Bose, Adv.


For the State            :      Ma. Zareen N Khan, Adv.
                                Ms. Amita Gaur, Adv.

Heard on                 :      28.03.2023 and 29.03.2023

Judgment on              :      29.03.2023


Joymalya Bagchi, J. :-

1.

Appellants have assailed judgment and order dated 17.7.2017

and 18.7.2017 passed by the learned Additional District and Sessions

Judge, 5th Court, Barasat, North 24-Parganas in ST case no. 50/2015

arising out of S.C case no. 293/2015 convicting the appellants for

commission of offence punishable under section 498A/304B IPC and

sentencing them to suffer rigorous imprisonment for 2 (two) years each

and to pay fine of Rs. 5000/- each, in default to suffer rigorous

imprisonment for further two months each for the offence punishable

under section 498A IPC and to suffer rigorous imprisonment for 10 (ten)

yeas each for the offence punishable under section 304B IPC. Both the

sentences shall run concurrently.

2. Prosecution case as alleged against the appellants is to the effect

that the victim Pallabi was married to Aloke on 3.8.2012. Aloke used to

carry on illegal trade in liquor. In order to assist Aloke, Sankar Naskar

(PW1), father of Pallabi used to provide daily ration on a regular basis.

Aloke and his parents Adhir Mondal and Haridasi Mondal started

demanding cash. They tortured Pallabi over such demands. Pallabi

complained of torture. A boy was born to the couple. When villagers

intervened, Aloke and his parents started assaulting Pallabi. On

30.10.2014 at around 12 O'clock Sankar received information that

Pallabli had been admitted to hospital. He came to the hospital and

heard that there was a quarrel between Pallabi and her husband and in-

laws. As a result, she committed suicide by pouring kerosene and setting

herself on fire. On the written complaint of Shankar (PW1) Rajarhat PS

case no 363/14 dated 30.10.2014 under sections 498A/326/307 IPC

was registered.

3. In the course of investigation, dying declaration of Pallabi was

recorded in presence of Dr. Sudipta Kr. Singh (PW10), the treating

surgeon. Soon thereafter Pallabi died. Charge sheet was filed and

charges were framed under Sections 498A/304B IPC, alternatively

section 302 IPC. They pleaded not guilty and claimed to be tried.

4. In the course of trial, prosecution examined 12 witnesses and

exhibited a number of documents. Defence of the appellants was one of

innocence and false implication. They examined one of their neighbours

Jayanti Mondal (DW1). In conclusion of trial, learned trial Judge by

judgment and order dated 17.7.2017 and 18.7.2017 convicted and

sentenced the appellants, as aforesaid.

5. I have considered the evidence on record.

6. P.W 1 Sankar Naskar is the father of the deceased and de facto

complainant. He deposed his daughter Pallabi was married to Aloke

Mondal. Six months after marriage disturbances occurred over the issue

of Aloke demanding money. PW1 gave money to Aloke on a number of

occasions. A male child was born to the couple. Thereafter, torture

increased. In 2014 he received a phone call that Pallabi had caught fire.

She was admitted to a hospital. He rushed to the hospital. Subsequently

Pallbai died. He lodged written complaint Ext 1. In cross examination, he

stated that he had lodged general diary with regard to torture. Pallabi

suffered from mental pain as there was poverty in the house of Aloke.

After her death 'streedhan' articles were returned.

7. PW5 Balendra Nath Mondal is a relation of PW1. He deposed

there were disturbances in the matrimonial life of Pallabi. General diary

was lodged. At the time of marriage they knew Aloke used to work as a

labour in a silver shop but subsequently they came to know he ran an

alcohol business.

8. PW 8 Palash Naskar is the brother of Pallabi. He signed on the

inquest report.

9. PW 9, Basudev Naskar is an uncle of Pallabi. He deposed

appellant tortured Pallabi to compel her to join the illegal alcohol trade.

They tried to settle the matter. Local people told them to go to police. In

May 2014 general diary was registered. Torture upon Pallabi increased.

On 30.10.2014 Pallabi set herself on fire. She was admitted to R.G. Kar

Medical College and Hospital. He scribed the FIR (Exhibit 1/1).

10. PW 10, Dr. Sudipta Kr. Singh was a medical officer attached to

R.G. Kar Medical College and Hospital. He deposed on 30.10.2014

Pallabi Mondal was admitted to the hospital. She was conscious and

oriented. She made statement to police in his presence. The statement

was read over and explained to the patient. She put her LTI on the

statement. He proved the dying statement. In cross-examination, he

stated he could not understand or write Bengali properly.

11. PW 7, Dr. Manimala Sen conducted post-mortem examination.

She found 96 per cent burn injuries on the dead body. She opined death

was due to burn injury, ante-mortem in nature.

12. PW 12, Pravash Ghosh is the investigating officer. He deposed he

went to the place of occurrence. He drew rough sketch map with index.

He recorded statements of witnesses. He seized articles under a seizure

list. He collected dying declaration recorded by Debasish Ghosh, S.I. of

police attached to Tala P.S. He identified the dying declaration. He

collected death certificate of the deceased. He lodged written complaint.

13. Jayanti Mondal, a neighbour of the appellant was examined as

DW 1. She stated Pallabi lived happily at the matrimonial home. She

wanted to go to her parental home and a document was signed (Exhibit

B). She proved her signature on the document (Exhibit B/1). She could

not state why Pallabi died. In cross-examination, she stated there was a

dispute going on as Pallabi wanted to go to her parental home.

14. From the aforesaid evidence on record it appears Pallabi was

married to Aloke Mondal on 03.08.2012. After six months there were

disturbances at the matrimonial home. Her father (PW 1) and her uncle

(PW 9) intervened. A general diary being GD Entry No.998 dated

18.05.2014 was registered. A meeting was convened and a written

settlement (Exhibit B) was executed to permit her to go to her parental

home. In the light of the aforesaid evidence, defence plea sought to be

established through DW 1 that Palabi was living happily at the

matrimonial home appears to be false. After child birth, torture on

Pallabi increased. Finally on 30.10.214 she suffered burn injuries and

was admitted to hospital.

15. From the aforesaid evidence on record it appears prosecution has

been able to prove that Pallabi was subjected to torture at the

matrimonial home by her husband and in-laws. Oral statement

regarding torture as transpiring from her relations PWs 1, 5 and 9 is

corroborated by the general diary lodged (Exhibit 7). Contents of the

written statement (Exhibit B) must be seen in the light of the aforesaid

evidence on record. Pallabi was subjected to torture. In order to bring her

back to the matrimonial home, it is probable she was compelled to write

in the written statement (Exhibit B) that there was no torture meted out

by her husband and in-laws. If Exhibit B is appreciated in the backdrop

of other incriminating evidence on record including the dying

declaration, it is self-evident that its contents are untrue and the

document was executed under compulsion. Even then the document

admits there was dispute at the matrimonial home.

16. Evidence with regard to torture upon Pallabi is supported by her

dying declaration (Exhibit 8). PW 10, Dr. Sudipta Kumar Singh who

treated Pallabi at R.G. Kar Medical College and Hospital proved the dying

declaration. He stated Pallabi was conscious and oriented. She made the

dying declaration to a police officer SI Debasish Ghosh who recorded the

same. Pallabi also put her LTI on dying declaration.

17. It is contended Debasish Ghosh, S.I. attached to Tala Police

Station who recorded the dying declaration has not been examined. PW

10, Dr. Sudipta Kr. Singh who proved the dying declaration did not

understand or write Bengali properly. Hence, dying declaration has not

been proved beyond doubt. I am unable to accept such contention. The

dying declaration has been proved as Exhibit 8 without objection. Pallabi

was admitted under Dr. Singh at R.G. Kar Medical College and Hospital.

He is the best person with regard to her competence to make the

statement. The said witness unequivocally stated Pallabi was conscious

and capable of giving the dying declaration. She made the declaration

before a police officer who recorded the same. She also put her LTI. Dr.

Singh has been working in the Government Hospital for sometime.

Though he may not be fully conversant in Bengali, in view of his nature

of work in a hospital which caters mostly to Bengali speaking population,

it is highly improbable that he would not understand the statement

made by Pallabi to the police officer.

18. In such view of the matter, in my estimation, P.W. 10 is a

competent witness to prove the dying declaration. Dying declaration is

corroborated by the oral evidence of the relations with regard to the

torture as well as the corresponding contemporaneous General Diary at

police station. As discussed earlier, the averments made in the written

statement (Exhibit - B) must be construed in the backdrop of the

circumstances in which the document was executed and the

overwhelming evidence to the contrary. However, I am unable to accept

the prosecution case that the torture was over demands of dowry. Apart

from P.W. 1 none of the other witnesses stated the victim-housewife was

tortured over dowry. Even the scribe of the FIR (P.W. 9) did not support

the prosecution case with regard to demands of dowry.

19. Thus, I am of the opinion, though prosecution has been able to

prove that the housewife was subjected to torture at the matrimonial

home, it has not been established beyond doubt that the torture arose

from demands of dowry. But the torture was continuous and was of such

intensity that it pushed the housewife towards self-immolation within

two years of marriage.

20. The evidence on record attracts the statutory presumption under

section 113A of the Evidence Act. No alternate explanation justifying

suicide by the housewife is either offered by the defence or is evident

from the materials on record. The irresistible inference is that the

continuous torture upon the housewife goaded her to commit suicide.

21. Under such circumstances, I am of the opinion prosecution has

been able to prove the ingredients of the offences punishable under

sections 498A and 306 IPC. Offence under section 306 IPC being a lesser

offence to one punishable under section 304B IPC, conviction of the

appellants without framing charge for the said offence do not prejudice

them. Accordingly, conviction of the appellants is modified and they are

convicted on the aforesaid counts.

22. Coming to the issue of sentence imposed on the appellants, I note

prosecution has not been able to prove the offence under section 304B

IPC but the ingredients of the offence under section 306 IPC have been

established beyond doubt. Torture upon the housewife was primarily by

her husband Aloke Mondal and the in-laws, namely, Haridasi Mondal

and Adhir Mondal abetted the same. They have been suffering

incarceration for more than five years.

23. Taking into consideration the aforesaid factors, I direct that

appellant No.1, Aloke Mondal shall suffer rigorous imprisonment for

seven years and pay a fine of Rs.10,000/-, in default, to suffer rigorous

imprisonment for one year more and appellant Nos. 2 and 3, namely,

Haridasi Mondal and Adhir Mondal shall suffer rigorous imprisonment

for the period already undergone and pay a fine of Rs.10,000/- each, in

default, to suffer imprisonment for one year more for the offence

punishable under section 306 IPC. Sentence imposed on the appellants

under section 498A IPC shall remain unaltered. Both the sentences shall

run concurrently.

24. The appeal is, accordingly, disposed of.

25. In view of disposal of appeal, connected application(s), if any,

stands disposed of.

26. Period of detention suffered by the appellants during

investigation, enquiry and trial shall be set off from the substantive

sentence imposed upon them in terms of 428 of the Code of Criminal

Procedure.

27. Copy of the judgment along with L.C.R. be sent down to the trial

Court at once.

28. Urgent photostat certified copy of this judgment, if applied for, be

supplied expeditiously after complying with all necessary legal

formalities.

I agree.

(Ajay Kumar Gupta, J.)                                  (Joymalya Bagchi, J.)