Smt. Katyani Ghosh vs The State of West Bengal

Raghunath Bhattacharya, J.—This appeal was directed against the judgment and order of conviction passed by Sri R.K. Datta Choudhuri, Sessions Judge, Jalpaiguri in Sessions Trial No. 10 of 2002 arising out of Sessions Case No. 125 of 2001 convicting the appellant Katyani Ghosh u/s 498A/ 306/ 304B of the Indian Penal Code. Shortly put, the prosecution case is that accused Dilip Ghosh and victim Jaba Ghosh were married according to Hindu rites and customs on 29.04.1997. Jaba Ghosh after six months from the date of marriage was subjected to torture by her husband Dilip Ghosh and mother-in-law Katyani Ghosh. On 08.06.1999 Jaba Ghosh committed suicide by hanging and as a result Madan Kumar Gope, elder brother of Jaba lodged a complaint to the local Police Station. Hence the prosecution case. The defence case as it appears from the trend of the cross-examination of prosecution witnesses and answered given by the accused persons to their respective examinations u/s 313 Cr. P.C. is that of absolute innocence.

I like to mention that in the instant case after conclusion of trial learned Trial Court acquitted Dilip Ghosh, husband of Jaba and convicted Katyani Ghosh, the mother-in-law of Jaba for commission of offence u/s 304B I.P.C. and sentence her to suffer R.I. for seven years.

After hearing both sides a charge u/s 498A/ 306/ 304B I.P.C. was famed against the accused person to which each of them pleaded not guilty and claimed to be tried and the defence case as it appears from the trend of the cross-examination of prosecution witness is that of absolute innocence. In the instant case in order to bring home the charge levelled against the accused persons as many as seventeen witnesses were examined from the side of the prosecution. Madan Gope, the elder brother of Jaba was examined as P.W. 1, P.W. 2 Amal Ray, P.W. 3 Sankar Uria, P.W. 4 Somra Uria P.W. 2 to P.W. 4 are the local witnesses. P.W. 5 Bhupendra Nath Gope was the father of Jaba, P.W. 6 Kiran Bala Ghosh happens to be the mother of the victim Jaba, P.W. 7 Paran Gope, P.W. 8 Arati Gope are happens to be the near relation of victim Jaba. P.W. 9 Birendranath Roy, P.W. 10 Anna Ghosh, P.W. 11 Bimal Roy, P.W. 12 Shyamal Roy, P.W. 13 Sanu Uria are all the local witnesses. P.W. 14 Dr. D.G. Dasgupta performed the P.M. Examination on the dead body of Jaba Ghosh and according to him death was due to asphyxia following hanging which is ante mortem and suicidal in nature. P.W. 15 A.S.I. D.K. Baral performing the inquest report of the dead body of the victim Jaba and is a formal witness. P.W. 16 S.I. B.N. Nandi was posted as O.C., Mal P.S. at the relevant time and he filled up of form of F.I.R. and also a formal witness and P.W. 17 is the I.O. of this case.

At the very outset of the argument learned Lawyer appearing for the prosecution categorically stated that persecution relied upon the ocular version of P.W. 1, P.W. 5, P.W. 6, P.W. 7 and P.W. 8. Before discussing the entire evidence on record I like to mention that P.W. 2, P.W. 3, P.W. 4, P.W. 9, P.W. 10, P.W. 11 and P.W. 12 did not help the prosecution case in any way either they have been declared hostile by the State and remain unshaken during the course of the cross-examination or they have not stated anything against the accused person. So, it is useless to discuss their evidence in details. According to P.W. 1 the First Information Report maker contended that victim Jaba was married to Dilip on 29.04.1997 according to Hindu rites and customs. He further stated that his sister lived happily there for sometime after marriage. After six months her mot her-in-law Katyani started giving her mental torture and pressing her to bring a Godrej Almirah from her house but according to P.W. 1 he has no capacity to met their demand as a result Jaba committed suicide by hanging after a lapse of 18-19 months from the demand. P.W. 5 as well as P.W. 6 are happens to be the parents of victim Jaba. According to P.W. 5 after six months from the date of marriage Jaba''s mother-in-law pressed his daughter to bring a Godrej Almirah and Jaba expressed her inability before her mother-in-law and after that on 08.06.1999 she committed suicide by hanging. P.W. 6 also have stated more or less the same thing that after six months of date of marriage Katyani demanded a Godrej Almirah from Jaba and at last after 18 - 19 months Jaba committed suicide. According to P.W. 7 a dispute cropped up after six months from Jaba''s marriage over the demand of Godrej Almirah and Jaba committed suicide on 08.06.1999 by hanging. P.W. 8 has also stated the same thing.

These are more or less in a nutshell the evidence on record and according to learned Lawyer appearing for the prosecution the entire prosecution story based on the ocular version of P.W. 1, P.W. 5, P.W. 6, P.W. 7 and P.W. 8. According to these witnesses Jaba was married to Dilip in the month of April, 1997 and she committed suicide by hanging in the second part of 1999. Everybody have stated that from the date of marriage and for next six months Jaba was living happily at her matrimonial home. At that time her mother-in-law Katyani demanded a Godrej almirah and Jaba''s family has failed to fulfill that demand. Nobody has stated whether Katyani or Dilip was pressing the demand for from last part of 1997 to the second part of 1999. Learned Counsel for the State in his usual fairness submitted that learned Trial Court had convicted accused person. This is the option upon the Court to believe or disbelieve the ocular version of P.W.s examined from the side of the prosecution. According to him if the court relied upon the ocular version of P.W.s then This Court should upheld the judgment of the Trial Court otherwise the Court will alter the judgment. At this juncture Mr. Chakraborty, learned Counsel appearing for the prosecution referred to the decision reported in Biswajit Halder @ Babu Halder and Others Vs. State of West Bengal, . It was held in this judgment that accepting the statement is made by P.W.s alleging that the victim had been subjected to cruelty and harassment prior to her death, there is no other evidence to prove that the victim committed suicide on account of cruelty and harassment to which she was subjected just prior to her death which in fact are the most essential ingredients of the evidence to be led in respect of Section 113B of the Evidence Act, 1872 in order to bring home the charge against the accused person u/s 304B I.P.C.. In order to hold that an accused guilty of an offence u/s 304B I.P.C. it has to be shown that apart from the fact that the woman died on account of burn or bodily injury, otherwise than under normal circumstances, within seven years of her marriage, it has also to be shown that soon before her death she was subject to cruelty or harassment by her husband or any relative of her husband. In order to bring home a conviction u/s 304B I.P.C. it will not be sufficient to only lead evidence showing that cruelty or harassment had been meted out to the victim, but that such treatment was in connection with the demand for dowry. So, from this judgment as mentioned above it should be proved that the victim was subjected to cruelty or harassment or torture just prior to her death otherwise a charge u/s 304B cannot be sustained. In this case as per the evidence lead by the prosecution marriage was proved. Jaba was living happily in her matrimonial home for a period of six months after her marriage. Thereafter her mother-in-law Katyani demeaned a Godrej Almirah. Jaba''s parents failed to fulfill the demand thereafter Jaba committed suicide but when she committed suicide after eighteen months from the date of harassment.

Section 304B I.P.C. provides that where the death of a woman is caused by and burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with any demand for dowry, such death shall be called "dowry death" and such respondent or relative shall be deemed to have caused her death. Section 113B of the Evidence Act says that when the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with any demand for dowry the Court shall presume that such person had caused the dowry death. Death by suicidal 1989 CR LJ 2330 (materials supplied by the Court).

In the instant case victim Jaba was married to Dilip in the first part of 1997. After marriage they lived happily for six months since then Dilip along with his mother Katyani started mental/physical harassment cum assailed cum ill-treatment to her. Jaba''s family member has failed to fulfill the demand of a Godrej Almirah which Katyani asked Jaba to bring from her parent''s house. The inability on the part of Jaba''s parents to fulfill the demand put Jaba into a very pathetic situation which compelled her to commit suicide.

Prosecution mainly relied upon the ocular version of P.W. 1, P.W. 5, P.W. 6, P.W. 7 and P.W. 8. I have carefully gone through the evidences of those P.W.s Admittedly Katyani demanded a Godrej almirah from Jaba''s parents in last quarter of 1997. Jaba committed suicide in the second quarter of 1999. There is no evidence that Jaba was subjected to torture cruelty or harassment just prior to her suicidal death. There is no iota of evidence to come to a conclusion that torture or harassment or mental abuse upon Jaba compelled her to commit suicide in the year 1999. Practically there is no evidence to the effect how Jaba was treated in her in-laws house in the entire year of 1999. Practically the learned Trial Court has miserably failed to consider this aspect the prosecution in the Court below has also failed to produce sufficient evidence to prove that Jaba was subjected to mental/physical torture or harassment or abuse prior to her death. So, in view of the decision supplied by the learned Lawyer for the prosecution and in view of aforesaid discussion I am afraid that in spite of best effort from the side of the learned Counsel for the prosecution, State has miserably failed to prove the charge beyond doubt. I like to mention again that due to the lacuna and latches on the part of the prosecution witnesses this judgment as well as the order of conviction have no legs to stand upon.

In view of aforesaid discussion and considering the facts and circumstances of this case and after hearing the forceful argument from the side of the prosecution as well as learned Counsel for the defence I am inclined to hold that it is impossible for this Court to uphold the order of conviction passed by the Trial Court.

In view of the aforesaid discussion the appeal stand allowed. The accused Katyani is found not guilty to the charge u/s 304B I.P.C. and set at liberty at once and be released from bail bond forthwith.

Let copy of this judgment along with Lower Court Record be sent down to the Court below at once. Urgent photostat certified copy, if applied for, be handed over to the parties as early as possible.