MANIK SARKAR Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) Assailing the Judgement and Order dtd. 29/6/2011 passed by Learned Sessions Judge, Fast Track court, Balurghat, Dakshin Dinajpur in Sessions Trial no. 20/2008 convicting the appellant for commission of an offence punishable under Sec. 498A of the Indian Penal Code and sentenced him to suffer simple imprisonment for three years and to pay a fine of ? 2000 in default to suffer simple imprisonment for a further period of two months.

(2.) The complaint was lodged by the complainant being the brother of the deceased victim against the appellant and other in-laws alleging inter alia that the marriage was solemnized 10 years back according to Hindu rights and custom with the present appellant. The father of the complainant gave ? 20,000 in cash and gold ornaments and other articles. The sister of the present complainant delivered two children and after marriage up to 3 years the family was maintained by the accused properly. After that the accused used to fall out quarrel with the sister of the complainant without any rhyme or reason and she was subjected to physical and mental torture on the ground of demand of more money. The accused person ultimately drove her away from the matrimonial home after physical assault. The members of the family of the complainant after convincing sent her back to the matrimonial house due to poverty and incapability of the family of the complainant to maintain her immediately after that the accused persons by way of different manner started demanding money from the sister of the complainant. It was further alleged that in the morning of 4/4/2006 the accused persons in connivance with each other fell out a quarrel with the sister of the complainant and deprived her food and confined her in a room without food and water. On 6/4/6 the complainant came to learn about the severe illness of her sister and that she was admitted to Bhalurghat hospital. Then he received the news and found her sister lying in the hospital in burnt condition who subsequently succumbed to her injuries on the next date and the accused no. 1 fled away from his house. On the basis of the complaint the Kumarganj P.S case No. 38/06 dated 10/4/6 under sec. 498A/306/34/406 IPC started against the FIR named accused persons and the chargesheet was submitted against them. The charge was framed by the learned Additional Sessions Judge, Fast Track Court, Balurghat against the present appellant along with other accused persons under sec. 498A/306/34 IPC and the same was read over and explained to the accused persons who pleaded not guilty and claimed to be tried. Accordingly the trial commenced. The learned Trial Court after considering the facts and circumstances and the evidence adduced before the court delivered the judgement whereby all the accused persons were acquitted in respect of charge of offence punishable under sec. 306 of IPC and the appellant was found convicted in respect of charge under sec. 498A IPC.

(3.) The Learned Advocate appearing on behalf of the appellant argued that FIR was lodged against 5 persons under Sec. 498A/306 and all the accused persons were acquitted from the charges under Sec. 306 excepting the present appellant and all were acquitted from the charges of 498A IPC also. During inquest all witnesses were present from the side of victim as well as the appellant who signed therein. The inquest suggests that she committed suicide. No demand of dowry was mentioned. The daughter of the deceased was not cited as a witness. P.W. 2, the mother said about a dying declaration which is highly questionable as it is evident from the evidence adduced by other witnesses and the doctor that the patient was not in a condition to say anything. The taxi driver and the other witness also corroborate such version that the patient was unconscious and she did not say anything on the way to hospital. The allegation of torture made in the FIR is vague and omnibus in nature as it is absolutely silent of any date, time or year since when the torture started. The neighbour and the relatives did not support the case of prosecution and deposed that the appellant and the deceased had a good relation. It is further argued that it is not possible for a person with 80% percent burn injury and under sedative to say anything to the mother only. In the post mortem no smell of kerosene oil was found and the jerkin containing liquid was never sent for forensic examination to establish whether it was kerosene or not. The contention of the Learned Advocate is that the first part of cruelty as per Sec. 498A is not established rather hostility of his mind can be reflected even in charge sheet that appellant committed murder. There is the delay in lodging FIR is not explained. Nowhere it was stated that the death was due to demand of dowry.