Tamal Sengupta @ Raja vs The State of West Bengal

Raghunath Bhattacharya, J.—This appeal is directed against the judgement and order of conviction passed by Sri K.R. Ahmed thereby convict Tamal Sengupta u/s 498A I.P.C. and sentencing to suffer R.I. for three years and also pay a fine of Rs. 2,000/- in default to suffer further R.I. for three months. Being aggrieved by and dissatisfied with the order of conviction the appellant preferred this appeal. A thumbnail sketch of the prosecution case is that accused Tamal Sengupta was married to Mita, the niece of the defacto complainant on 01.03.1997. Since after marriage Mita was tortured in her in-laws house both physically and mentally. The husband and mother-in-law of Mita created pressure on her to bring money from her father''s house and threatened her to divorce. On 18..09.1997 Mita''s mother had been to the house of the accused for giving gift for Puja. In in-laws of Mita abused her in filthy languages and her husband Tamal severely assaulted Mita in her presence. On that date in the dead of night defacto complainant i.e. the uncle of Mita came to know that Mita caught fire and she was taken to Howrah District hospital by the local people where she succumbed to the injury. Hence the prosecution case.

The defence case as it appears from the trend of the cross-examination of the prosecution witnesses, examination of defence witnesses and the answer given by the accused person to their respective examination u/s 313 Cr.P.C. is that of absolute innocence. It was the specific plea of the appellant / accused that Mita accidentally caught fire and the accused Tamal tried to rescue her and sustained burn injury.

On the basis of the plea of both sides and also on the available documents and the papers a charge u/s 498A/34 and 304B/34 I.P.C. was framed against Tamal Sengupta @ Raja and Archana Sengupta, since deceased. The accused pleads not guilty and claims to be tried. Now only point for consideration is whether the sentence passed by the learned Trial court is sustainable in the eye of law or not.

In order to bring home the charge from the side of the prosecution as many as 18 witnesses were examined. Defacto complainant Arabinda Kumar Ghosh was examined as P.W. 1. The inquest report was conducted by P.W. 2 who happens to be the Deputy Magistrate cum Collector of Howrah District. Shila Dutta was examined as P.W. 3. She happens to be the sister of P.W. 1. Mita''s father Dinabandhu Ghosh was examined as P.W. 4 and Mita''s mother Lila Ghosh was examined as P.W. 5. Amalendu Ghosh who happens to be the brother of P.W. 4 and uncle of Mita was examined as P.W. 6. Krishna Saha, Anath Mondal, Nirmal Dey, Milon Kumar Das, Debjit Das, Goutam Pal, Gobindapada Manna, Bishnupada Ghosh, and one Gopal Chakraborty were examined as P.W. 7 to P.W. 15. S.I. A.K. Saha was present at the time of holding inquest was examined as P.W. 16. Dr. A.R. Saha who perform the P.M. examination on the deadbody of Mita on 19.09.1997 has examined as P.W. 17 and A.B. Singha Roy S.I. of police was examined as P.W. 18 was the I.O. of this case.

Four witnesses have been examined from the side of the defence Satyanarayan Roy, an employee of Howrah District Jail, Aloke Banerjee, a ward master of Howrah Hospital, Dr. Narayan Chanda who attached to Howrah Hospital and Dr. S.K. Majhi who also attached to the Howrah hospital and under whose supervision Tamal Sengupta was admitted in Howrah District Hospital were examined as D.W. 1 to D.W. 4 respectively.

On careful scrutiny of the evidence on record as well as the judgement and available paper it appears that learned P.P. Howrah submitted that prosecution has been able to prove the case beyond all reasonable doubt by examining P.W. 1, defacto complainant, P.W. 3 aunt of the deceased P.W. 4 and P.W. 5, the parent of the deceased Mita. P.W. 6, the uncle of the deceased. P.W. 7 the neighbour of the deceased. At the very outset I like to mention the judgement is quite lengthy one.

The Learned Counsel appearing for the State Mr. Ghosh submitted that there are sufficient materials in the evidence to warrant the conviction of the accused Tamal Sengupta under both counts. Just like the learned P.P. of the lower Court Learned Counsel for the State Mr. Ghosh mainly rely upon the ocular version of P.w. 1, the parents of the deceased Mita, P.W. 3, the aunt of the deceased, P.W. 6, the uncle of the deceased and some of the neighbour witnesses. On the other hand, Mr. Kushal Mukherjee appearing for the accused person contended that on careful scrutiny of the evidence of P.W. 1, P.W. 3, P.W. 4 to P.W. 6 it is crystal clear that there is a gulf of difference and discrepancies in their ocular version and it is impossible to rely upon their testimony and as a result this Court has no other alternative but to pass an order of acquittal against the accused person. In respect of the other witnesses just like P.W. 2 who perform the inquest, P.W. 8 the rickshaw puller who took the housewife to the hospital. P.W. 9 who found Mita lying in the rock with burning injury in her parson. P.W. 11, P.W. 12 are the seizure witnesses just like P.W. 10. P.W. 14 one Bishnupada Ghosh who claim himself as an uncle of Mita contended that Tamal and his mother created pressure on Mita for bringing money from her parents but he was remain silent wherefrom he gather this knowledge. P.W. 15, priest who perform the marriage ceremony of Tamal and Mita. P.W. 16 was present at the time of holding inquest report. P.W. 17 Dr. A.R. Saha who perform the P.M. Examination on the dead body of Mita and according to him injury followed by death was due to the shock and septicaemia. But Dr. Saha during the course of the cross-examination has failed to state the percentage of burn sustained by deceased Mita. Though he admitted that he know the degree of burn. He admitted in his cross-examination that no chemical examination report was placed before him at the time of preparation of P.M. examination and he admitted that in order to substantiate his report the report of the chemical examination is must. According to P.W. 1 at the time of settlement of marriage there is no demand of dowry but at the time of marriage T.V and other article was gifted to the bride. But P.W. 1 further contended that after the marriage both Tamal and his mother used to demand money from Mita on different plea and when Mita was failed to fulfill their demand then torture started upon her. P.W. 3 contended that Mita was the daughter of her elder brother. According to P.W. 3 who happens to be the ''Pisima'' of Mita contended that after nearly one month of marriage a quarrel started between Mita and her husband and it was the contention of PW. 3 that Tamal Sengupta, the accused and his mother used to torture Mita on demand of money and he denied to provide food to Mita and they used to assault her. Though P.W. 3 was living just adjacent to the house of Mita and her husband yet from the evidence I do not find any whisper that she made an attempt to settle the matter in between Mita and her husband. Now comes to the evidence of P.W. 4 and P.W. 5 and according to me parents of Mita was the best evidence in this type of case as because Tamal used to demand money from Mita''s parent. P.W. 4 contended that Mita is a student of English medium and she used to write letter to her parents either in English or in Hindi. P.W. 4 contended that in those letters Mita never stated anything about the alleged demand of money by her husband. But according to P.W. 4 she came to learn from her brother who was the defacto complainant of this case that Tamal and his mother used to demand money from her. P.W. 5 who happens to be the mother of Mita have stated more or less the same thing. Just like P.W. 4 P.W. 5 who happens to be the mother of Mita contended that at the time of marriage some article was gifted but since then Mita never told her that her husband or her mother-in-law used to demand money from her on different plea. Though it was an admitted fact that Mita was in habit of writing letter either in English or in Hindi to her parents. The defacto complainant not only stated in her oral testimony but also in the written complaint he has stated that Tamal, husband of Mita and his mother used to demand money from Mita and ask her to bring the same from her parents. Now if we believe the statement of P.W. 1 in true sense of term then we must disbelieve the ocular version of Mita''s parents. According to P.W. 6 Mita was ill treated at her in-laws house but during the course of the cross-examination he admitted that he never made any attempt to settle the dispute in between Mita and her husband. Though P.W. 6 has elaborately stated about the death of Mita by burning yet learned Trial Court acquitted Tamal Sengupta on the charge u/s 304. So, I am not inclined to discuss the matter in details.

Learned Counsel Mr. Mukherjee appearing for the accused Tamal Sengupta submitted a decision reported in 2002 C Cr. LR (SC) 653, where it was held that finding of the Trial court as regards the death negated suicide with a positive finding of accidental death. If suicide is ruled out then in that event applicability of Section 498A can be had only in terms of explanation (b) thereto which in no uncertain terms records harassment of the woman and the Statute itself thereafter clarifies it to the effect that it is not every such harassment but only in the event of such a harassment being with a view to coerce her to any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her to any person related to her to meet such demand - there is total absence of any of the requirements of the Statute in terms of Section 498A.

Admittedly acquittal of a charge u/s 304B though not by itself a ground for acquittal u/s 498A but some cogent evidence is required to bring home the charge of Section 498A as well without which the charge u/s 498A cannot be said to be maintained. Presently as I discussed earlier that there is a gulf of difference between the ocular version of inmates of Mita because same was stated by P.W. 1 was not stated by the parents of Mita (P.W. 4, P.W. 5) and P.W. 6. So, this Court is unable to uphold the judgement passed by the Trial Court.

I must appreciate the effort made by the learned Lawyer for the State Mr. Ghosh in order to uphold the conviction of the learned Trial Court yet the desperate attempt on the part of Mr. Ghosh rings rather hollow on the basis of uncorroborated testimony of the prosecution witnesses.

In this backdrop in view of aforesaid discussion this Court has no other alternative but to allow the appeal.

So, the appeal is hereby allowed on contest. Accused Tamal Sengupta is hereby found not guilty to the charge u/s 498A I.P.C. and be released from his bail bond at once.

Let copy of this judgement 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.