ASHIM KUMAR BANERJEE. J. - (1.) IN or about 2002 Madhabi Ghosh married Khadim Chandra Ghosh of village Barabelun, Police Station Bhatar, in the district of Burdwan. Few days after her marriage Khadim and his mother Gayatri started inflicting torture upon Madhabi both physically and mentally. Their grievance was that the gold ornaments were not given in time. Subsequently, the ornaments were given to the accused. Even then, the torture continued. The brother-in-law Utpal and sister-in-law Chaina also inflicted torture upon Madhabi. On January 11, 2006 Madhabi committed suicide. She took poison and subsequently breathed her last at Burdwan Hospital. Three days before her death Madhabi was not provided with any food by the accused, on the contrary she was given a container of poison so that she could commit suicide. The father of Madhabi lodged a written complaint with Bhatar Police Station on the next day being January 12, 2006. Police initiated a criminal proceeding as against the accused under Section 498A read with Section 304B of the INdian Penal Code. Ultimately charges were framed under Section 498A read with Section 306 of the INdian Penal Code. The accused pleaded not guilty and opted to be tried.
(2.) PROSECUTION examined altogether fourteen witnesses. PW-1 Srishtidhar Ghosh, PW-2 Bablu Ghosh, PW-3 Raghunath Ghosh being the father, brother-in-law and brother respectively of the victim supported the case of the prosecution, so were PW-7 Baidyanath Banerjee and PW-8 Kalachand Pramanik being the Priest and Barber involved in the marriage. Other independent witnesses being PW-4 Netai Chandra Ghosh, PW-5 Ajoy Pathak and PW-6 Milan Ghosh turned hostile. They feigned ignorance about the cause of the death of the victim. The Autopsy Surgeon (PW- 12) confirmed that the death was caused due to poisoning. The learned Additional Session Judge, Second Court, Burdwan scrutinized the evidence and came to a finding that no convincing, either oral or documentary, evidence came on record to substantiate the allegation of dowry. The learned Judge observed that the evidence of the relatives of the victim did not inspire confidence on Court relating to the alleged offence under Section 498A. On Section 306, the learned Judge observed that F.S.L Report did not come in evidence and in absence of the same the Autopsy Surgeon could not confirm whether the death was homicidal or accidental or suicidal in nature. The learned Judge observed that presumption under Section 113A of the Evidence Act could not be drawn. Hence the accused were entitled to order of acquittal. The learned Judge discharged all the accused from the charges brought against them as referred to above. Hence, this revisional application by the defacto complainant. Mr. Arup Chatterjee, learned counsel appearing in support of the application contended that it was not the quantity but quality of the evidence that mattered. According to Mr. Chatterjee, the evidence of the father should have inspired confidence in Court. He prayed for quashing of the order of acquittal coupled with an order of remand so that the prosecution could proceed afresh. Opposing the application, Mr. Srikanta Dutta, learned counsel appearing for the respondents, contended that although the relatives of the victim complained about physical torture the doctor could not find any injury on the person of the victim. Mr. Dutta further contended that the learned Judge was convinced that the prosecution miserably failed to prove the element of dowry involved in the marriage. Once the case of dowry could not be proved Section 498A could not have any application. In any event, the plea of physical or mental torture was also not proved. He drew my attention to the FIR and/or written complaint and contended that the doctor, who attended the victim at the hospital, was also not examined. He contended that no previous complaint was lodged either by the victim or her relatives prior to the date of the present complaint. He contended that usually the victim being a lady would disclose her miseries to her mother. Significantly enough, mother was not examined.
(3.) TO support his contention Mr. Dutta relied on the following decisions :- i) All India Reporter 1984 Supreme Court Page 1622 (Sharad Birdhichand Sarda "VS- State of Maharashtra) ii) All India Reporter Supreme Court Page-1830 (Balram Prasad Agrawal "VS- State of Bihar and Others) iii) All India Reporter 1997 Supreme Court Page-3111 (State of Maharashtra "VS- Ashok Chotelal Shukla) iv) 1997 Volume-VI Supreme Court Cases Page-171 (Vijender "VS- State of Delhi) When someone loses his dearest or nearest one and is under the impression that the accused was responsible for his/her death he would consciously or unconsciously exaggerate to strengthen his impression and in the way make himself unreliable before the Court. Paragraph 48 of the decision of the Apex Court in the case of Sharad Birdhichand Sarda (Supra) would support my view. The said paragraph is quoted below :- "Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the background of which the oral statements are to be considered. All persons to whom the oral statements are said to have been made by Manju when she visited Beed for the last time, are close relatives and friends of the deceased. In view of the close relationship and affection any person in the position of the witnesses would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that this is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the Court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it.";