Dismissed

Samir Kumar Acharjee Alias Samir Acharya v. the State of Jharkhand and Others

Jharkhand HC12 Apr 2023Acq. App./15/2012

Case brief

AI extract

What is this about?

The High Court dismissed an appeal against acquittal in a dowry death case. The single judge acquitted the husband and in-laws, ruling that medical evidence showed suicide and witnesses failed to prove harassment necessary for a presumption under Section 113-B. No compelling reasons were found to disturb the acquittal.

What did the court decide?

Acquittal Appeal No. 15 of 2012 dismissed; lower court records sent to Court concerned.

Samir Kumar Acharjee Alias Samir Acharya Vs the State of… — Dowry and Cruelty | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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(Criminal Appellate Jurisdiction)

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Acquittal Appeal (DB) No. 15 of 2012

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(Against the judgment of acquittal dated 3^rd May 2012 passed by the learned Sessions Judge, Bokaro in S.T. Case No. 258 of 2011)

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------

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Samir Kumar Acharjee @ Samir Acharya, son of Gangadhar Acharjee, resident of Adra, PO-Adra, PS Raghunathpur, District Purulia (West Bengal)

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...... Appellant

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Versus

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The State of Jharkhand

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Amit Chakraborty, son of Khagen Chakaraborty,

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Manju Chakraborty, wife of Khagen Chakraborty,

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Both residents of village- Barmasia, PO & PS Chandankiyari, District Bokaro ..... Respondents

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---------

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PRESENT

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HON’BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON’BLE MR. JUSTICE RATNAKER BHENGRA

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------For the Appellant : Mr. Manoj Kumar No.3, Advocate For the Respondent No.2 and 3 : Mrs. J.Mazumdar, Advocate For the State : Mrs. Priya Shreshtha, Spl.PP

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Oral Order 12^th April 2023

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Per, Shree Chandrashekhar,J.

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IA No. 1269 of 2012

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This Interlocutory Application has been filed for condonation of delay of 22 days' in filing the present Acquittal Appeal.

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Having been satisfied with the grounds taken in the present Interlocutory Application, we hereby condone the delay of 22 days' in filing the present Acquittal Appeal.

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IA No. 1269 of 2012 is disposed of.

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Acquittal Appeal (DB) No. 15 of 2012

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Samir Kumar Acharjee @ Samir Acharya who is the informant of Chandankiyari (Barmasia) PS Case No. 67 of 2011 is aggrieved of the judgment of acquittal dated 3^rd May 2012 passed in ST Case No. 258 of 2011.

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On the basis of a written report given by Samir Acharya to the officer-in-charge of Chandankiyari police station, a First Information Report

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2 Acquittal Appeal (DB) No.15 of 2012

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was lodged under section 304-B r/w section 34 of the Indian Penal Code against Amit Chakraborty who is the husband, Manju Chakraborty who is the mother-in-law, Khagen Chakraborty who is the father-in-law and Sumit Chakaraborty who is the brother-in-law of Seema Chakaraborty @ Sonu.

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After the investigation, a charge-sheet was laid against Amit Chakaraborty and Manju Chakaraborty who have faced the trial on the charge under sections 304-B/34 and 302/34 of the Indian Penal Code.

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During the trial, altogether 15 witnesses were examined out of whom PW1, PW2, PW7, PW8, PW9, PW10, PW11 and PW14 are the residents of village Barmasia which is the matrimonial home of Seema Chakraborty. These witnesses did not support the prosecution and were declared hostile when they were rendering evidence in the Court.

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PW3 Bimal Chakraborty who is the brother-in-law, PW4 Munmum Chakraborty who is the sister, PW5 Shital Acharya who is the uncle and PW13 Lakshmi Acharya who is the mother of Seema Chakraborty have made allegations of harassment and torture of Seema Chakraborty in her matrimonial home at the hands of her husband and mother-in-law. Samir Acharya who is the informant of this case has supported the allegations made in the written statement given by him to the officer-in-charge of Chandankiyari police station, while tendering evidence in the Court as PW6.

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Admittedly, there is no witness who has come to the Court to say under what circumstances Seema Chakraborty has died in her matrimonial home. As PW12, Dr. Amol Nath who conducted the postmortem examination over the dead body of Seema Chakraborty has tendered evidence in the Court that he did not observe any external injury on her body. The doctor has found ligature mark oblique and non-continuous highup over the neck with knot left side below mastoid and; whitish groove and parchmentation of subcutaneous tissue were present. The doctor has opined that the cause of death was asphyxia due to hanging which was antemortem and suicidal in nature.

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In his cross-examination, PW12 has stated that ligature mark which was found over the neck of Seema Chakraborty can be caused by plastic rope. He has further stated that hyoid bone was intact and eyes of Seema Chakraborty were closed.

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3 Acquittal Appeal (DB) No.15 of 2012

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The learned Sessions Judge has referred to “Modi's Textbook of Medical Jurisprudence and Toxicology”, 26^th Edition to hold that the findings of PW12 clearly established that Seema Chakraborty has died a suicidal death.

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On the basis of the aforesaid medical evidence, the learned trial Judge has held that the related witnesses have falsely deposed in the Court that Seema Chakraborty was throttled to death.

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The learned trial Judge has held as under:

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“22. The prosecution case rests on the testimony of PW-3 Bimal Chakravorty of village Mahal, who as the brother-in-law of deceased, PW-4 Munmun Chakravorty, who is the sister of the deceased and also resident of village Mahal, PW5 Shital Acharya is the uncle of the deceased and resident of village Adra, PW-6 Sameer Acharya is the father of deceased and PW-13 Lakhmi Acharya is the mother of the deceased.

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As discussed above, the part of their statements that the accused persons throttled the deceased has been falsified by the medical evidence. According to the version of these witnesses regarding the demand of cash of Rs.50,000/- Hero Honda motorcycle and gold chain was made by the accused persons and the deceased was harassed in reference to the demand. All these happened in a very short span of time as the deceased died only after two months of the marriage. But, the question is that regarding for which demand and on which date the deceased was harassed and in what manner. It will be also pertinent to know that how many days, the deceased actually lived in the matrimonial house, so that the accused persons had an opportunity to subject her to cruelty.

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In her cross-examination, PW-13, who is the mother of the deceased had stated that after the marriage of her daughter, she had gone to her matrimonial home only once, one week before the occurrence.

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PW-5 Shital Acharya is the uncle of the deceased has stated in his cross-examination that after the marriage of deceased, she had suffered from an electric shock, on which, she had come to her parent's house in village Adra.

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PW-4 Munmum Chakravorty is the sister of the deceased has stated in her cross-examination that on 06/07.04.2011, deceased Seema had suffered a electric shock, for which, she was treated at Raghunathpur in her parents house. She has deposed that 10-15 days after the incident, no person from her in-laws house came to see her. She has also stated that after that incidence, she stayed with Seema in her maike for 3-4 days days.

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On reading the testimony of PW4 and PW-13, it is evident that the deceased remained in her parents house after 7^th April till around 21^st April. This is corroborated by the cross-examination of PW-3, in which, he has stated that the deceased had been in her parents house for 20-22 days. From this evidence, it appears that deceased actually lived for a very short span of one and a half month, in matrimonial home. The deceased is said to have been subjected to cruelty in reference to the demand but what date she was subjected to harassment and in what manner. And on what date, she was subjected and harassed it has not been come in the evidence. There are confronting and contradictory versions and

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4 Acquittal Appeal (DB) No.15 of 2012

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the depositions of PW-3 Bimal Chakravorty, who is brother in-law of the deceased, who has not stated anything about manner, in which, the deceased was harassed but has stated that she was strangulated to death. As stated earlier, this part has been falsified by the medical evidence. The sister of the deceased PW-4 has referred to a few incidence which did not figure u/s 161 Cr.PC given to the police but even these allegations appeared to be minor, but even these evidence appeared to be minor and occasions on other flimsy grounds. PW-13 stated that the deceased was assaulted in reference to the dowry death but she has not given the date of any such incidence. The father of the deceased and informant PW-6 has stated about clearly with reference to the dowry but he has not stated that deceased was assaulted by any of the accused persons in reference to the demand.

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In order to invoke the presumption under Section 113 B of the IPC it is an imperative legal necessity that not only it should be established that there was a demand of dowry, but it should be established that the woman was subjected to cruelty or harassment for or in connection with the demand of dowry. Both the requirement is to be established before a presumption can be drawn. A bald statement of dowry demand unaccompanied by harassment in reference will not be sufficient to attract section 113B of the Evidence Act.

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Here as discussed above one line minor statement given by the witnesses that accused persons used to make a dowry demand of Rs.5000/- cash, Hero Honda motorcycle and gold chain, will not be sufficient to draw a presumption as envisaged u/s 113 (B) of the Evidence Act unless the harassment is also established.

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The deposition of PW 4 that Accused No.2 flew into a rage when water fell on her bread and that a list of work to be done was handed over to the deceased can not perse be regarded as acts of harassment in reference to the dowry demand. The prosecution has failed to specify the date time and manner of harassment in which the deceased was subjected to, in the tragically short stay of one or one and half month. It has also come in evidence of PW13 mother of the deceased that the accused no.I used to be too involved in his work and he never stayed in his house and used to move around all the day in connection with his business. Accused no. 1 had a good business of reliance card. He did not take the deceased with him on motorcycle. These narration of facts presents the picture of a man too engrossed in his work, who did not sufficiently attend to his newly married wife. But, this can not come under the category of harassment as contemplated under Section 113B of the Evidence Act, so as to draw the legal presumption against the accused persons.

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23. After the prosecution evidence, the statement of the accused persons have been recorded u/s 313 Cr.PC. The defence is of complete denial.

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24. It is argued on behalf of the defence that the unfortunate suicide which took place resulted on trivial adjustment matter of the deceased in her matrimonial home. This finds supports from the findings in the inquest report, which is Ext-4/1, conducted in Purulia Town P.S. U.D. Case No.120/2011 in column 14 of this report, there is specific finding on the basis of the statements of the witnesses "it may be concluded that no adjustment remained between the deceased and mother-in-law (Manju Chakraborty) and with her husband (Amit Chakraborty) and as a result, the incident of hanging occurred in the home of her husband." It falsifies the prosecution case of harassment in reference to the dowry demand and the fatal step taken by the deceased appears to be the result of

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5 Acquittal Appeal (DB) No.15 of 2012

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the fact that she had not fully adjusted in her matrimonial home. Man-woman relationship is too complex a relationship and that too in case a newly married couple. What exactly impelled the newly wed lady to take the fatal step of suicide within 2 ½ month of the marriage is only a matter of conjecture. Her stay in her matrimonial home, as discussed above was very brief and during this period it has come in evidence of her mother (PW13) that Accused no.l mostly stayed away from his home in connection with his work. No overt act of harassment has been attributed to him nor it has been stated that he abated the suicide of his wife. 26. In these circumstances it will not be safe to record a finding that the accused persons caused the Dowry Death of the deceased. The law on this point does not permit such an inference to be drawn on the basis of superficial, sketchy and contradictory evidence.”

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Mr. Manoj Kumar, the learned counsel for the appellant has contended that the learned trial Judge has committed serious error in law ignoring the statements of PW3, PW4, PW5, PW6 and Pw13 who have made specific allegations of demand of Rs.50,000/- and a motorcycle by the accused persons.

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The case of the prosecution is based on circumstantial evidence such as (i) unnatural death of Seema Chakraborty in her matrimonial home, (ii) death within seven years of her marriage and (iii) harassment and torture of Seema Chakraborty in her matrimonial home.

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In a criminal trial, for the offence under section 304-B of the Indian Penal Code, a statutory presumption under section 113-B of the Indian Evidence Act can be raised provided the prosecution has established a prima facie case that dowry death has been committed by the accused persons. However, the statutory presumption under section 113-B of the Indian Evidence Act has not been so designed as to relieve the prosecution of its duty to prove its case.

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In “Shambu Nath Mehra v. State of Ajmer” AIR 1956 SC 404 the Hon'ble Supreme Court has observed as under:

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“11. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and S. 106 is certainly not intended to relieve it of that duty. On the contrary. It is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience.

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The word "especially" stresses that it means facts that are preeminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to

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6 Acquittal Appeal (DB) No.15 of 2012

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prove that he did not commit the murder because who could know better than he whether he did or did not.

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It is evident that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. The King, 1936 PC 169 (AIR V 23) (A) and Seneviratne v. R. 1936-3 ER 36 AT P. 49 (B).

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........................................................................................................... 13. We recognise that an illustration does not exhaust the full content of the section which it illustrate but equally it can neither curtail nor expand its ambit; and if knowledge of certain facts is as much available to the prosecution, should it choose exercise due diligence, as to the accused, the facts cannot be said to be especially" within the knowledge of the accused. This is a section which must be considered in a common sense way; and the balance of convenience and the disproportion of labour that would be involved in finding out and proving certain facts balanced against the triviality of the issue at stake and the ease with which the accused could prove them, are all matters that must be taken into consideration. The section cannot be used to undermine the well established rule of law that save in a very exceptional class of case, the burden is on the prosecution and never shifts.”

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In our opinion, the learned trial Judge has rightly observed that on the basis of a bald sentence making allegation of harassment and torture of Seema Chakraborty in connection to demand of dowry a presumption under section 113-B of the Indian Evidence Act cannot be raised. In this context, we may refer to the evidence of PW13 who has admitted in her cross-examination that the respondent No.2 was so busy and engrossed with his business that he had very less time to spend at home. All other witnesses have also made such admissions in the Court which throw the prosecution's case in serious doubts.

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The powers of the Appellate Court while hearing an appeal against the judgment of acquittal is in any manner no less than the powers exercised by the Court against the judgment of conviction. If the Appellate Court finds that there are compelling reasons such as the trial Court has recorded a finding which is bordering perversity the Appellate Court can reverse the findings and interfere with the judgment of acquittal. However, before the appellate Court interferes with the judgment of acquittal a clear finding on the guilt of the accused must be recorded.

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In “ Jaswant Singh v. State of Haryana” (2000) 4 SCC 484 the Hon'ble Supreme Court has held as under:

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“21. The principle to be followed by appellate courts considering an appeal against an order of acquittal is to interfere only when

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7 Acquittal Appeal (DB) No.15 of 2012

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there are “compelling and substantial reasons” for doing so. If the order is “clearly unreasonable” it is a compelling reason for interference (see Shivaji Sahabrao Bobade v. State of Maharashtra). The principle was elucidated in Ramesh Babulal Doshi v. State of Gujarat : (SCC p. 229, para 7) “While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then — and then only — reappraise the evidence to arrive at its own conclusions.” (See also George v. State of Kerala).”

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Having regard to the facts and circumstances in the case, we find no ground to interfere with the judgment of acquittal passed in S.T. Case No. 258 of 2011 and, accordingly, Acquittal Appeal (DB) No. 15 of 2012 is dismissed.

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Let the lower Court records be sent to the Court concerned forthwith.

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(Shree Chandrashekhar, J.)

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(Ratnaker Bhengra, J.)

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Jharkhand High Court, Ranchi Dated: 12^th April, 2023 S.B./Nibha-A.F.R

Samir Kumar Acharjee Alias Samir Acharya v. the State of Jharkhand and Others

Case brief

What is this about?

What did the court decide?

Samir Kumar Acharjee Alias Samir Acharya v. the State of Jharkhand and Others

Case brief

What is this about?

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