Biswanath Das & Others vs State Of West Bengal

@JUDGMENT-JUDGMENT

Samapti Chatterjee, J

A) This Criminal Appeal arises out of judgement and order of conviction passed by the learned Additional District & Sessions Judge, Fast Track

Court, Serampore against three accused persons namely (1) Biswanath Das, (2) Tapan Das & (3) Basanti Devi under Sections 498A/304/B of the

Indian Penal Code.

2. The case of the petitioner in a nutshell is as follows :-

On 03.04.1998 de facto complainant Pradip Kumar Seal at Dankuni P.S. lodged an F.I.R that the younger sister of the de facto complainant Bula got

married to accused Biswanath Das of 1 no, Behala Para Lane, Calcutta-35, at present residing at Manoharpur Raypara, P.S. Dankuni District

Hooghly on 3rd March, 1997.

After marriage the victim Bula went to her matrimonial home to reside with her husband and other inmates. A cash of rupees twenty thousand, one

steel almirah one gold chain for the bridegroom, one gold ring wristwatch and ornaments for the bride and other gifts were gifted in the marriage of

Bula.

It is very much unfortunate that after lapse of ½ months from the date of marriage the husband, brother-in-law and mother-in-law started torturing

upon the victim demanding money and various gifts. Bula explained about the torture when she used to come to her father’s house. The de facto

complainant also stated that he along with his brother-in-laws went to the house of Bula and asked about the occurrence from her inmates of

matrimonial house and they prayed apology to them. But torture upon Bula was increased day by day. Ultimately on 02.04.1998 at about 9 a.m. the de

facto complainant and others got an information to the effect that Bula expired and her dead body was lying at Dankuni Police Station. Hearing this

they rushed to the Dankuni P.S. and came to learn that Bula committed suicide on 01.04.1998 by hanging herself. The dead body of Bula was sent to

Serampore Hospital for the purpose of post mortem examination.

On receipt of this complaint from the de facto complainant S.I. Banamali Mondal of Dankuni P.S started Dankuni Police Station Case No.41 dated

03.04.1998. Accordingly investigation started and after completion of investigation charge-sheet under Sections 498A and 304B of the Indian Penal

Code framed against the above named three accused persons.

Accordingly trial started and after completion of trial Learned Judge convicted these three appellants.

C) Mr. De learned Advocate appearing for the appellants submitted that the incident occurred on 1st April 1998 and the brother of the deceased

lodged FIR on 3rd April, 1998. Inquest done on 3rd April, 1998 at 2 p.m.

P.W.1 is the Pradhan of Manoharpur Gram Panchayat. He in his deposition stated that Basanti Devi informed him through her family members that

her daughter-in-law committed suicide by hanging herself.

In cross-examination P.W.1 submitted that neither Basanti Devi nor any other of her relative informed him regarding any torture or maltreatment upon

her.

P.W.2 is the seizure list witness. He is also a hearsay witness.

P.W.3 the brother of the deceased stated that at the time of marriage his sister Bula Sil they gifted cash of rupees twenty thousand, one steel almirah

cot with beddings gold ornaments to the bride groom and bride and other gifts also. After marriage his sister went to her matrimonial home at 1/

Behala Para Lane, Kolkata-700 035 and started residing over there. Thereafter her brother-in-law shifted their residence to Anukul Roy Para,

Dankuni. Two months after the date of marriage Biswanath, Tapan and Basanti Devi inflicting torture upon his sister Bula both mentally and

physically on demand of more money and articles. His sister repeatedly reported regarding torture upon her to them. He also deposed that time to time

they handed over the money to their sister to meet up the demand of the accused persons but torture upon his sister was not reduced and he also

deposed that his sister used to complain regarding torture inflicted upon her by the accused persons. The mental and physical torture was continued till

her death.

It was also deposed by the P.W.3 that after three months from the date of marriage one day Tapan Das, brother-in-law of his sister outraged her

modesty. Ultimately she committed suicide on 1st April, 1998. Her death was unnatural one. On 2nd April, 1998 they got an information that their

sister committed suicide by hanging herself. She committed suicide as she did not bear the torture upon her inflicted by her husband, brother-in-law

and mother-in-law. He stated that his sister also reported about such torture upon her last time before them 2/3 days prior to her death. After having

such information immediately they went to Dankuni P.S. and came to learn that their sister committed suicide by hanging and her deadbody was sent

to Serampore Wallash hospital for post-mortem examination. An inquest of the deadbody of his sister was done there by a Magistrate in their

presence. P.W.1 signed the said inquest report. He identified his signature also. On 3rd April, 1998 a written complaint was lodged and that was

written by Jayanta Majumdar. He wrote the complaint as per instruction of P.W.1. Said Jayanta Majumder is his relative.

It is also submitted by P.W.3 that since he was busy with the post-mortem of the deadbody of his sister so he lodged the complaint to the police station

on 3rd April, 1998 and thus cause the delay for lodging the FIR.

Two copies of photographs of his sister’s marriage were also seized by the Police Officer under a proper seizure list. The witness identified

Tapan the brother of the deceased’ s husband and his mother Basanti Devi in Court premises.

P.W.4 the mother of the deceased stated in her deposition that 2/3 days prior to committing suicide she came to their place. She also stated that she

has not directly given any cash to her son-in-law. In her deposition she also stated that she cannot recollect the date when her daughter was tortured.

P.W.5 is the sister of the deceased. In her cross-examination she stated that they came to Dankuni for settlement of the dispute cropped up between

her sister and the accused persons. After the death of her sister she never visited Dankuni. She also deposed that her sister 3 /4 days prior to her

death informed regarding torture inflicted upon her but she failed to recollect the date.

P.W.6 is the brother-in-law and the husband of P.W.5. In his deposition stated that after marriage Bula went to her matrimonial home and started to

reside with the accused persons but one or two months after her marriage the accused persons started misbehaving with her and also started torturing

Bula mentally and physically on demand of more money and articles. P.W.6 heard it from his mother-in-law, brother-in-law and also from Bula. He

also deposed in the same tune of the other P.Ws that Bula failed to bear the degree of torture inflicted upon her by her husband, mother-in-law and

brother-in-law. Accordingly without finding any alternative on 1st April, 1998 she committed suicide by hanging herself. After gathering the news that

Bula committed suicide on 2nd April, 1998 they rushed to the Dankuni and from there they went to Wallesh hospital.

Learned Magistrate prepared the inquest report of the deadbody of Bula in their presence. He also signed the inquest report.

P.W.7 is also the sister of Bula. She also stated in her deposition in the same tune as has been stated by other interested witnesses. She also stated

that sometime she saw injury mark on the person of Bula and she came to know from her mother and also from her sister Bula about the torture

inflicted upon her by the accused persons. She also deposed that sometime they tried their label best to settle the dispute but all in vain. Bula on 1st

April, 1998 committed suicide by hanging herself. She committed suicide as she failed to bear the torture inflicted upon her by the accused persons.

In cross-examination P.W.7 also stated that they gave dowry along with gold ornaments, cot with beddings steel Almirah, utensils and other gifts and

cash at the time of their sister’s marriage.

P.W8 is the elder brother-in-law of deceased Bula Sil. He also stated that a sum of rupees twenty thousand was given as dowry at the time of

marriage of Bula Sil along with gold ornaments for bride and bride grooms, utensils and other materials as per demand of the accused persons.

P.W.9 is the doctor who was attached to Serampore Wallesh hospital. He stated in his deposition that deadbody was identified by Constable C/1273

Madan Mohan Dutta before them. He deposed that on examination an oblique non continuous legature mark high up in the neck with a gap of 1â€

below left ear. Perchmentisation of skin of neck with petechile haemorrages. Hyoid bone was intact. Uterus was enlarged and bulky and contents

foetus of 16 weeks pregnancy. Stomach with its contents, portion of liver and one kidney were preserved in S.S for chemical examination. He stated

that in their opinion the death was due to asphyxia due to hanging.

P.W.10 also the autopsy surgeon. He stated in his deposition that after examination they opined that death was caused due to aphyxia.

P.W.11 is the another autopsy surgeon who stated that he is the M.O Physician at present attached to Serampore Wallesh hospital. On 2nd April,

1998 he was attached to the same place and in the same capacity. On that day a board of doctors was formed consisting of him, Dr. Amalendu

Mukherjee and Dr. K.K. Sarkar for holding post-mortem on the deadbody of Bula. Accordingly they held the post-mortem.

P.W.12 is the Investigating Officer. In his cross-examination he stated that there is a note in his case diary that Ira Chatterjee and Tinkari Chatterjee

were residing near the place of occurrence. Witness Manoj Majumdar is a resident of other Para and that is situated at a distance from the place of

occurrence.

P.W.13 is the second Investigating Officer. He stated in his deposition that he submitted charge-sheet against three accused persons namely

Biswanath Das, Tapan Das both sons of late Rajani Das and Smt Basanti Devi wife of late Rajani Das under Sections 498A and 304B of the Indian

Penal Code. He never visited the place of occurrence and never examined any witnesses in that case.

P.W.14 is the 3rd Investigating Officer. He stated in his deposition that on 3rd April 1998 he received a written complaint from one Pradip Kumar Sil

in respect of unnatural death of his sister. He identified the endorsement marked as Exbt.3/2. After receiving the written complaint he started Dankuni

P.S. Case No.41 dated 3rd April, 1998 by filling up the formal F.I.R. Formal F.I.R is marked as Exbt.7. During the course of investigation he visited

the place of occurrence and prepared rough sketch map with index of place of occurrence. He identified the rough sketch map with index marked as

Exbt.8. He examined the available witnesses and recorded their statement under Section 161 of Cr.P.C. He visited the place of occurrence and found

a deadbody of a woman hanging from the ceiling with the help of a Sari. Thereafter he in presence of the local Panchayat Pradhan got the deadbody

brought down and thereafter he took the deadbody to the police station. From police station he sent the deadbody to Serampore Wallesh hospital for

the purpose of post-mortem examination. The deadbody was sent through Constable No.1275 Madan Mohan Dutta. He identified the challan through

which he sent the deadbody to Serampore hospital. During investigation he deposed that he seized a pink coloured used Sari from the house of Basanti

Das under a proper seizure list and stated that the seizure list was written and signed by him also. That seizure list was prepared in presence of the

witnesses. He identified the Sari seized from the place of occurrence.

Accused Biswanath Das was examined under Section 313 Cr.P.C. Question No.7 and answer of it is quoted below :-

“Question No.7: P.W.3 to 8 have stated that on 1.4.1998 Bula committed suicide by hanging being subjected to your torture. What’s your reply

in that score ?

Answer : No torture was made. We were not present at home at the time of suicide committed by her.â€​

Accused Tapan Das and accused Basanti Devi were also examined under Section 313 Cr.P.C they answered in the same tune as has been answered

by accused Biswanath Das.

Mr. De learned Advocate appearing for the appellants drew our attention to the cross-examination of P.W.1 and also drew our attention to the first

two lines of cross-examination of P.W.2. Those two lines are quoted below :-

“I cannot say why the daughter-in-law of Basanti Devi committed suicide.

I did not find any seal and label over the saree produced before this Court.â€​

Mr. De also strongly argued that it is evident from the interested witnesses that the appellants have a cordial relation with the family members of the

deceased Bula. He further vehemently argued that case of dowry under Section 304B Part-II has not been proved. He also stated that charge framed

under Section 212 of the Cr.P.C is the defective one though the place is mentioned but no time is mentioned in the charge which is mandatory under

Section 212 of the Cr.P.C. He also argued that Section 113 (b) of the Evidence Act has also not been followed. In support of his contention Mr. De

relied on an Hon’ble Supreme Court decision reported in 2008 (1) SCC (Cri) Page-172 Para-9 (Biswajit Halder @Babu Halder And Others vs

State of West Bengal). He also relied on a Hon’ble Apex Court decision reported in 2015 (2) SCC (Cri) Page-768 Paragraphs-10,11, 16, 18 & 19

(Major Singh And Another vs State of Punjab). Mr. De further emphasized that soon before the death there should be some demand of dowry which

is lacking in the present case. Therefore, in conclusion Mr. De submitted that the husband Biswanath Das had already released after completion of

ten years imprisonment.

Per contra, Mr. Avik Ghatak learned Advocate appearing for the State vehemently contended that there were two independent witnesses. The first

witness P.W.2 Pradhan deposed as per the direction of the then Pradhan of their area. He went the place of occurrence and he saw the deadbody of

daughter-in-law of Basanti Devi in hanging condition. He had brought down the deadbody of the victim. Thereafter the police officer seized the pink

coloured Sari which was used as rope for the purpose of hanging. That pink coloured sari was also seized by the police officer. He signed the seizure

list. Remaining related witnesses repeatedly stated about such torture upon Bula at her in-laws house.

P.W.3 brother of deceased Bula in her deposition stated that they gifted a cash of rupees twenty thousand, one steel Almirah, one cot with beddings,

gold ornaments and other gifts in the marriage of Bula. Two months after her marriage Biswanath Das and Basanti Devi both started inflicting torture

physically on demand of more money and articles. After three months from the date of marriage one day Tapan Das brother-in-law of his sister

outraged her modesty. He also stated that on 1st April, 1998 her sister committed suicide about which they were informed on 2nd April, 1998. It is

also submitted by Mr. Ghatak that P.W.2 stated that his sister committed suicide as she could not bear the torture upon her inflicted by her husband,

brother-in-law (deor) and mother-in-law. He also deposed that he mentioned in written complaint that the accused persons regularly tortured his sister.

P.W.4 mother of the deceased Bula stated in her testimony that two months after marriage the problem started. Accused persons demanded more

money and more articles from her daughter. Accused persons also assaulted her daughter. It is also deposed by the P.W.4 that Bula time to time

informed then about the illegal demands of the accused persons as well as the torture inflicted upon her. She used to cry before P.W.4 also. Bula also

narrated those incidents to her son and other relatives. P.W.4 also deposed that they used to provide some money to her and in this way they sent her

back to her matrimonial house. But the accused persons were not satisfied with those amounts. More so, 2/3 days prior to her death Bula came to

their house.

P.W.5 the sister of the deceased also stated that after 2 months from her marriage the accused persons started torturing Bula on demand of more

money and articles. In cross-examination of the P.W.5 she deposed that her sister Bula 3 / 4 days prior to her death informed her regarding torture

upon her.

P.W.7 the other sister also deposed that rupees twenty thousand was given as dowry at the time of her marriage to the accused persons and other

gifts and ornaments.

P.W.9 the post-mortem doctor also stated that she was conceived for six weeks therefore two lives were taken by such suicide due to unbearable

torture upon the deceased.

Mr. Ghatak also relied on the answer 7 of the examination of the accused persons under Section 313 Cr.P.C of the brother-in-law of the deceased

that at the time of her committing suicide none of their family members were present on the residence. It shows that the brother-in-law was also used

to reside at the said premises.

Mr. Ghatak on the point of no evidence was brought on record to show that cruelty was committed upon to her for bringing initial dowry cannot be a

ground for non punishing the accused persons under Section 304/B of the Indian Penal Code. As under Section 304B of the Indian Penal Code and

Section 113B of the Evidence Act has not defined the period or indicated “seen before†relied on Hon’ble Apex Court decision reported in

(2008) 16 SCC 155 Paras-21 & 22 (Tarsem Singh vs State of Punjab) . Reliance was also placed on another decision

reported in 2010 (3) SCC Page-152 Para-24 (G.V. Siddaramesh vs State of Karnataka )on the point of dowry death due to cruelty and torture. Mr.

Ghatak also relied on one decision reported in (2000) 1 SCC Page-247 Para-7 (State of H.P vs Lekh Raj And Another).Â

On the point of non-visit of place of occurrence Mr. Ghatak relied on one decision reported in 2020 AIR (SC) Page-280 (Jai Prakash vs State of Uttar

Pradesh And Others).

Before parting with his argument Mr. Ghatak submitted that testimonies of the P.Ws are corroborated with the FIR and it was also supported by the

post-mortem report given by the team of three autopsy surgeon. Accordingly Mr. Ghatak submitted that Court should dismiss the appeal thereby

affirming the conviction as ordered by the learned Additional District & Sessions Judge, Fast Track Court Serampore Sri A.K. Sikdar, on 12th

December, 2005.

Considering the submissions advanced by the learned Advocates appearing for the respective parties and after meticulously perusing the records

we find that there cannot be any dispute that the deceased Bula died unnatural death. Now the question is whether the prosecution has been able to

connect the present accused persons with the alleged crime. On a close and meticulous analysis of the evidence both oral as well as documentary

with care we find from the testimonies of brother, P.W.3, Mother P.W.4, sister P.W.5 and brother-in-law P.W.6 and also the independent witnesses

as P.W.1 and P.W.2 corroborating with each other as all the related witnesses in their testimonies stated that the accused persons inflicted torture

upon the deceased Bula for bringing more money from her paternal house. The degree of torture for bringing more money was so high that the

accused Bula failed to bear the same and accordingly she committed suicide by hanging herself from ceiling. Thus there is no scope to disbelieve the

testimonies of the relatives as well as the P.W.2 who after rushing to the place of occurrence found that Bula is hanging from ceiling and he brought

her down in presence of police personnel. We also find from the deposition of team of autopsy surgeon who prepared the post-mortem report and

opined that on examination an oblique non continuous legature mark high up in the neck with a gap of 1†below left ear. Perchmentisation of skin of

neck with petechile haemorrages. Hyoid bone was intact. Uterus was enlarged and bulky and contents foetus of 16 weeks pregnancy. Stomach with

its contents, portion of liver and one kidney were preserved in S.S for chemical examination. He stated that in their opinion the death was due to

asphyxia for hanging.

It is also corroborated with the testimonies of the P.W.3, 4, 5 , 7 and 8 that at the time of marriage rupees twenty thousand was given as dowry

along with gold ornaments, cot , almirah and other gifted articles. It is also corroborated from the testimonies of the relatives with the written complaint

that deceased Bula committed suicide as she did not bear the torture upon her inflicted by her husband, brother-in-law (deor) and mother-in-law and

also 2/3 days prior to her committing suicide she also reported regarding torture inflicted upon her by the accused persons.

We therefore, have no hesitation to hold that the prosecution has been able to prove the guilt against the accused persons to the hilt and the learned

Trial Court has rightly held that the guilt is proved against the appellants.

Therefore, the sum total is that learned Trial Court has properly appreciated the evidence on record and has held the appellants guilty. Accordingly

we do not find any merit in the appeal however in the light of the totality of the aforesaid discussion we hold that considering the age of the appellant

no.3 Basanti Devi we set aside the sentence under Section 304/B of the Indian Penal Code and acquitted her from that charge. But we convict her

under Section 498A of the Indian Penal Code.

In respect of appellant no.2 Tapan Das we affirmed the sentence under Section 304/B of the Indian Penal Code and under Section 498A of the

Indian Penal Code.

12 Accordingly, the appeal is disposed of.

Office is directed to send Lower Court Record at once.

Urgent photostate certified copy of this judgement, if applied for be supplied to the parties on priority basis.