BAPPA GHOSH Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) In this appeal filed by the accused (convicted person) the judgment dated 22nd February, 2010 is sought to be set aside along with the sentence imposed. By the said judgment the appellant was convicted and sentenced to suffer rigorous imprisonment for ten years under Section 304B of IPC and for further two years simple imprisonment with fine of Rs. 20,000/- under Section 498A of the Indian Penal Code (IPC). In default of payment the appellant was to suffer further simple imprisonment for three months.

(2.) The victim who was the wife of the appellant died under unnatural circumstances on 19th April, 2001. An FIR was lodged on 17th May, 2001. In the said FIR the defacto complainant alleged murder of his daughter for the cause of dowry.

(3.) Counsel for the appellant submits that the FIR has proceeded on the basis of murder but nowhere has it been stated in the FIR that there was any demand of dowry or physical cruelty as a consequence thereof was inflicted on the victim. The disposal order, letter of the Officer-in-Charge, Chitpur Police Station and copy of the victim's handnote were enclosed with the FIR but the said documents were not exhibited and therefore raises a presumption that if produced the same would have gone against the prosecution. It is for the first time in the evidence of the defacto complainant P.W. 2 (father) and P.W. 3 (mother) that the issue of demand for dowry has been raised. In fact in Exhibit-2 which is a letter dated 20th April, 2001 in the handwriting of P.W.3 there is no mention of any demand for dowry nor is there any allegation against the appellant or his parents. P.W. 2 and P.W. 3 by virtue of deposition have tried to fill the lacuna and improve the case which was not set out in the complaint of 17th May, 2001 or of 20th April, 2001 and not also recorded in the statement prepared under Section 161 of the CrPC before the Investigating Officer. P.W. 2 has stated about the demand for dowry but the same has not been corroborated by the evidence of P.W. 3. P.W. 4 (uncle) has also stated that the complaint was a result of consultation and discussion among themselves with regard to giving of evidence. P.W. 4 was informed by P.W. 3 about the telephonic conversation between the victim and P.W. 3 with regard to the threat meted out by Karabi and Gurupada. P.W. 4 in his evidence has submitted that a diary was found under the bed of the victim, such diary finds mention in the seizure list and although the seizure list has been marked as exhibit-8 the diary was not exhibited as the same would have gone against the prosecution. The same was withheld by the prosecution. P.W. 7, the doctor who conducted the post mortem examination has categorically stated that in his opinion the death was not caused by murder but was a case of death by hanging. From the evidence of P.W. 8 (Investigating Officer) it will appear that in the statement recorded under Section 161 of CrPC no case of dowry or any demand was made. Therefore it is for the first time the said has come in evidence before the Court and the improvement/embellishment was made with the intent that an order of conviction would be passed against the appellant, therefore the order be set aside.