Mahua Kumar Nee Lahiri vs The State Of West Bengal & Anr (27/08/2021)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
CRA 697 of 2013
Smt. Mahua Kumar Nee Lahiri
The State of West Bengal & Anr.
For the appellant: Mr. Sudipto Maitra, Mr. Subhasish Panchal, Mr. Vijay Verma.
For the State: Mr. T.K Ghosh, Mr. Arindam Sen.
Amicus Curiae: Mr. Dipanjan Dutt
Heard on: July 27, 2021
Judgment on: August 27, 2021.
BIBEK CHAUDHURI, J.
1. This is an appeal against the judgment and order of acquittal passed by the learned Judicial Magistrate, 4th Court at Howrah in GR Case No.1280 of 2008 (T.R 698 of 2008) on 1st July, 2013.
2. The appellant lodged a complaint on 17th May, 2008 before the Officer-in-Charge, Howrah Police Station stating, inter alia, that her marriage was solemnised with respondent No.2, Sanjay Kumar on 22nd May, 2004. In the wedlock between them, she gave birth to a male child on 27th June, 2005. Since their marriage, her husband Sanjay and his parents-in-law used to torture her both physically and mentally. Failing to bear such torture, the defacto complainant returned to her paternal home on 7th March, 2005 to save her life. Her husband also threatened her saying that he would kidnap their only child. The petitioner did not lodge any complaint in the local PS immediately after such incident considering the social reputation and respect of the family. She was also afraid that her husband would stop payment of Rs.3000/- per month for maintenance of their child, had she filed any complaint under Section 498A of the Indian Penal Code.
3. On the basis of the said complaint police registered P.S Case No.41 of 2008 dated 17th May, 2008 under Section 498A of the Indian Penal Code. On completion of investigation, charge sheet was submitted against accused Sanjay Kumar in the court of the learned Chief Judicial Magistrate, Howrah. The said case was transferred to the 4th Court of the learned Judicial Magistrate, Howrah for trial. During trial prosecution examined six witnesses. Some documents were also exhibited which I propose to refer subsequently in the body of judgment.
4. On conclusion of trial the accused was examined by trial court under Section 313 of the Code of Criminal Procedure where he pleaded his innocence, but he did not adduce any evidence in support of his defence.
5. The learned trial judge on conclusion of trial passed the impugned judgment acquitting the respondent No.2 under Section 248(1) of the Code of Criminal Procedure.
6. The defacto complainant has challenged the said judgment of acquittal in the instant appeal.
7. When the appeal came up for hearing, the appellant failed to take step. Notice was sent to the appellant. She received administrative notice but did not turn up to contest the instant appeal. Therefore, Mr. Dipanjan Dutt, learned Advocate was appointed by this Court as Amicus Curiae from the panel of the High Court Legal Service Committee to conduct the case on behalf of the appellant.
8. I have heard the learned Amicus Curiae, learned Advocate for the respondent and the learned Advocate for the State. I have also perused the impugned judgment passed by the learned Judicial Magistrate.
9. During trial of the case the defacto complainant deposed as PW1. In her evidence she stated that her mother-in-law refused to accept her as the wife of her son. She demanded five vories of golden neck chain from the paternal home of PW1. It is also stated by her that on the date of reception of the marriage, her husband did not invite any of her family members. Her husband demanded Rs.4000/- from her. He also stated to her that he is habitual drunkard and he has illicit relation with one Anamitra Bose. It is also stated by PW1 that once she saw her husband in a compromising position with a neighbouring leady. Subsequently, she became pregnant. During her pregnancy, she was not offered with proper food. Her husband assaulted her brutally. The appellant became ill due to such torture. She was admitted to T.L Jaiswal Hospital. However, she did not lodge any complaint against her husband and mother-in-law with the hope that the things will change and she will be able to lead a happy conjugal life. However, even after birth of her child her husband continued torture upon her. Finally, she lodged the complaint before the police. The said complaint was marked as Exhibit-1 in the trial court.
10. It is ascertained from the evidence of PW2, Smt. Tapasi Chakraborty who is maternal aunt of defacto complainant that she heard from PW1 that her husband used to treat her with cruelty and tortured her both physically and mentally. It is also stated by her that she saw the marks of injury on the person of the defacto complainant.
11. PW3, Tarit Chakraborty is the maternal uncle of the defacto complainant. He stated in his evidence that since date of ‘fulsazza’ Mahua was subjected to torture by her husband and parents-in-law.
12. PW4, Ashok Kumar Maity a neighour of the maternal home of the defacto complainant was declared hostile by the prosecution.
13. PW5, Bani Lahiri is the mother of the defacto complainant. She stated on oath that since after marriage, the appellant was subject to torture by her husband and parents-in-law. They assaulted the appellant in her presence. They did not provide her proper and sufficient food. When the appellant was pregnant, she was tortured in such a manner that the child in the womb would have died. She was medically treated at T.L Jaiswal Hospital, Howrah.
14. PW6 is the Investigating Officer of this case.
15. Mr. Dipanjan Dutt, learned Amicus Curiae with his usual fairness submits that there are lot of material contradictions in the evidence of the PW1. Marriage of the PW1 was solemnized with the respondent No.2 on 22nd May, 2004. She left her matrimonial home on 7th March, 2005. Subsequently, on 27th June, 2005 she gave birth to a male child. The written complaint was lodged on 17th May, 2008, i.e. after a lapse of about 3 years from the date of her departure from her matrimonial home. It is submitted by Mr. Dutt that the appellant failed to prove the ingredients of “cruelty” within the meaning of Section 498A of the Indian Penal Code. She failed to prove any willful conduct of the accused/respondent No.2 which is of such nature as is likely to drive her to commit suicide or to cause grave injury or danger of life, limb or health. Though it is stated by the appellant in her evidence she stated that her mother-in-law and subsequently her husband demanded gold neck chain and cash money as dowry, but said fact was not alleged in the FIR. Therefore, the second ingredient of “cruelty” that the defacto complainant was harassed with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
16. However, it is submitted by Mr. Dutt, learned Amicus Curiae that from the evidence of PW1 and other witnesses it is proved that PW1 was physically tortured by her husband. She was assaulted by the respondent No.2. In view of such specific evidence on record, he invites this Court to hold the respondent No.2 guilty for committing offence under Section 323 of the Indian Penal Code. It is also submitted by Mr. Dutt that though no charge was framed under Section 323 of the Indian Penal Code against the accused/respondent No.2, this Court can very well hold him guilty for committing offence under Section 323 of the Indian Penal Code in view of the provision under Section 222 of the Code of Criminal Procedure.
17. Mr. Sudipto Maitra, learned Advocate for the respondent No.2, on the other hand submits that the scope of appeal from a judgment of acquittal is different from the scope of appeal from a judgment of conviction and sentence. In case of an appeal against acquittal, if the evaluation of the evidence and the findings recorded by the trial court do not suffer from any illegality or perversity and the grounds on which the trial court based its conclusion are reasonable and possible, the High Court should not disturb the order of acquittal, if another view is possible. Merely because the appellate court on reappreciation and reevaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified, if the view taken by the trial court is a positive view. In other words, if two views are possible, the appellate court should not interfere with the order of acquittal passed by the trial court and that only where the materials on record lead to an inescapable conclusion of guilt of the accused, the judgment of acquittal will call for interference by the appellate court. With the above introduction it is submitted by Mr. Maitra that marriage of appellant and respondent No.2 was solemnized on 22nd May, 2004. After marriage they lived their conjugal life happily and peacefully. The said fact will be available on record from the letters written by the appellant to her husband immediately after marriage. All those letters were exhibited on admission by the defacto complainant. Even after seven months of marriage the relation between the appellant and the respondent No.2 was very loving, happy and cordial. This is revealed from the letter dated 20th December, 2004 written by the appellant to respondent No.2. Therefore, the allegation made by the defacto complainant in her FIR that she was physically and mentally tortured by her husband and parents-in-law after few days of marriage proves to be incorrect from the letters written by the appellant herself to her husband.
18. It is further submitted by Mr.Maitra, learned Counsel for the respondent No.2 that after the birth of the child, when the appellant started living at her paternal home, respondent No.2 used to spend all expenditure for the maintenance of their child. During trial the respondent No.2 has produced series of documents containing list of articles which the appellant used to spend for rearing of their child and the respondent No.2 used to spend those articles to the appellant. Therefore, there is absolutely no evidence to the effect that the appellant was treated with cruelty within the meaning of Section 498A of the Indian Penal Code.
19. For the reasons stated above, it is submitted by the learned Advocate for the respondent No.2 that there is absolutely no reason to interfere with the judgment as passed by the trial court in GR Case No.1280 of 2008 and the order of acquittal passed in favour of the respondent No.2.
20. Having heard the learned Amicus Curiae for the appellant and the learned Advocate for the respondent No.2 and on careful consideration of the materials of lower court record as well as the impugned judgment it is to be recorded at the outset following the decision of the Hon’ble Supreme Court in the case of Chandrappa vs. State of Karnataka reported in 2007 4 SCC 415 that the following principles are to be borne in mind in dealing with an appeal against the acquittal.
“(i) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;
(ii) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;
(iii) Various expressions, such as, ‘substantial and compelling reasons’, ‘good and sufficient grounds’, ‘very strong circumstances’, ‘distorted conclusions’, ‘glaring mistakes’, etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of ‘flourishes of language’ to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
(iv) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(v) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”
21. Bearing the above principle in mind let me now consider, scan and appreciate the evidence adduced on behalf of the appellant during trial of the case.
22. It is found from the First Information Report that marriage of the appellant was solemnised with the respondent No.2 on 22nd May 2004. In the said wedlock, the appellant gave birth to a male child on 27th June, 2005. It was alleged in the FIR that the husband and parents-in-law of the appellant physically assaulted her and failing to bear such torture she returned to her mother on 7th March, 2005 to save her life. Since 7th March, 2005 she has been residing at her paternal home. But the FIR was lodged on 17th May, 2008, i.e., after lapse of about three years from her date of departure from her paternal home.
23. It is needless to say that the FIR is not an encyclopedia. It is sufficient for Criminal Administration of Justice to set in motion if the FIR discloses a cognizable offence. FIR is not a substantive piece of evidence, but it can only be used for corroboration and contradiction of the prosecution story. Gists of the FIR have already been recorded. However, from the evidence of the appellant who deposed in the trial court as PW1 it is ascertained that from the very beginning she started to exaggerate her case against the respondent No.2. As for example, in her evidence she stated that her mother-in-law did not like her after her marriage and refused to accept her as her daughter-in-law. She demanded five vories of gold neck chain. Even on the date of her marriage reception the relatives of her paternal home were not invited. It is also stated on oath that her husband is a habitual drunker and he is having illicit relation with another lady. There is no semblance of such allegation in the FIR filed by the appellant before the police.
24. Other witnesses are the maternal uncle, maternal aunt and the mother of the appellant. It is ascertained from their evidence that they also exaggerated the story of physical and mental torture allegedly inflicted upon the appellant by respondent No.2. Only one independent witness, namely, Ashok Kumar Maity was examined during trial as PW4. He did not support the prosecution case and was declared hostile.
25. Surprisingly enough, the evidence of the appellant as PW1 cannot be reconciled with her conduct at the relevant point of time. The appellant alleged that after her marriage which was performed on 22nd May, 2004 her mother-in-law could not accept her as her daughter-in-law. After few days of marriage her husband also started to torture her both physically and mentally. He used to make illegal demand of money from the appellant to be brought from the paternal home. But the appellant wrote series of letters to her husband where she described her as her only love and all such letters depicted happy and cordial relation between the appellant and respondent No.2. According to FIR she left her maternal home on 7th March, 2005. But even on 20th December, 2004 she wrote a letter describing how much she used to love her husband. It is not disputed that after the birth of the child the appellant used to send list of articles required for the baby and the respondent No.2 used to procure the said articles and send those to the appellant. Even when the child of the appellant and respondent No.2 was three years old, the appellant sent measurement of feet of their child to the respondent No.2 requesting him to purchase a pair of shoes for their child.
26. The appellant failed to prove that the respondent No.2 treated her with cruelty, to mean any willful conduct which is of such nature as is likely to drive her to commit suicide or to grave injury of danger to life limb or health (whether mental or physical). The appellant also failed to prove that she was harassed on unlawful demand for any property or valuable security by her husband or any of her matrimonial relations.
27. In view of such circumstances, this Court finds that the learned trial court on careful and appropriate consideration and appreciation of evidence rightly passed the order of acquittal in favour of respondent No.2 and there is no scope of interference against the impugned judgment and order of acquittal.
28. Accordingly the instant appeal fails.
29. The judgment and order of acquittal passed by the learned Judicial Magistrate, 4th Court at Howrah in GR Case No.1280 of 2008 (T.R 698 of 2008) is affirmed.
30. The appeal accordingly is dismissed on contest, however without cost.
31. Let a copy of this judgment along with the lower court record be sent to the learned Court below forthwith.
(Bibek Chaudhuri, J.)
August 27, 2021
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