IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 1733 of 2008

Uday Chakraborty & Ors.     … Appellant (s)

Versus

State of West Bengal             …Respondent (s)

JUDGMENT

Swatanter Kumar, J.

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1. The learned Additional  Sessions Judge,  Arambagh convicted  

all  the  five  accused  persons  namely,  Uday  Chakraborthy,  Smt.  

Anandamoyee  Chakraborthy  (Appellant  No.  3),  Sukumar  

Chakraborthy  (Appellant  No.  2),  Smt.  Bela  Rani  Chakraborthy  

(Bhattacharjee) and Madhab Chakraborthy for an offence punishable  

under  Sections  498A/304B  of  the  Indian  Penal  Code  (hereinafter  

referred  to  as  ‘IPC’)  and  sentenced  them  for  7  years  rigorous  

imprisonment.   No separate sentence was awarded under Section  

498A of IPC on the ground that the accused persons were awarded  

sentence for the substantive offence of murder under Section 304B  

of  IPC.   Aggrieved  from  this  judgment,  the  accused  persons  

preferred an appeal before the High Court of Calcutta and the Bench  

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allowed their  appeal  in  part  and order  of  conviction  and sentence  

passed against Madhab Chakraborthy and Bela Rani Chakraborthy  

(Bhattacharjee) was set aside. However, the conviction and sentence  

of  Uday  Chakraborthy,  Sukumar  Chakraborthy  and  Smt.  

Anandamoyee Chakraborthy was confirmed vide its judgment dated  

18th of April, 2007.  Aggrieved therefrom these three appellants have  

filed the present  appeal before this Court  under Article 136 of  the  

Constitution of India praying for setting aside the order of conviction  

and sentence and for an order of acquittal.  

2. Now,  we  may  examine  the  facts  giving  rise  to  the  present  

appeal.  One Ms. Mina was married to Uday Chakraborthy on 5th of  

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June 1994.  The appellant No. 2 is the brother-in-law while appellant  

No. 3 is mother-in-law of deceased Mina.  According to the case of  

the prosecution, Kanailal, the father of the girl, Mina, who was later  

examined  as  PW  1  lodged  a  written  complaint  to  the  Officer-in-

Charge, Police Station, Arambagh, Hooghly on 19th April, 1996.  The  

complaint reads as under:-

“To The O.C. Arambagh Police Station, Arambagh, Hooghly.

Sir, My humble  submission  is  that,  I  gave  

my  daughter  Mina’s  marriage  with  Uday  Chakraborty, elder son of Sri Lakshminarayan  Chakraborty  of  village  &  P.O.  Golta,  P.S.  Arambagh, District Hooghly two years before.  Frequently  after  her  marriage  her  father-in- law,  mother-in-law,  sister-in-law  and  the  

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brothers-in-laws used to torture my daughter  both  physically  and  mentally,  because  my  son-in-law did not stay at the house.  I went to  my  daughter’s  house  for  a  few  times.   I  requested  her  father-in-law,  mother-in-law  and other members of the family.  I arranged  for  the settlement  of  the  quarrel.   After  that  suddenly on the last 18.4.96 (Eng) she had a  feud  with  her  husband  Udaychand  Chakraboty,  father-in-law-Sri,  Lakshminarayan  Chakraborty,  sister-in-law-

Belarani Chakborty (Banerjee) and brother-in- law-Sukumar  Chakraborty  at  her  father-in- law’s  house  and  the  aforesaid  persons  admitted  her  at  Arambagh  Subdivisional  Hospital  after  burning  her  on the  last  night,  and my daughter died at that night only.  My  firm  confidence  is  that  the  household  members  at  her  in-law’s place forcibly burnt  my daughter  to  death.   Therefore,  I  humbly  pray before you to arrange for the punishment  of  such  heinous  criminals  by  the  law  and  

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request reveals the actual reason of the death  of my daughter.

Yours faithfully, Sd/- Kanailal Bhattacharya”

xxx xxx xxx xxx

The couple has not even completed a period of two years of  

their marriage when, on 18th April, 1996, it was alleged that because  

of  dowry,  the  accused  and  other  family  members  tortured  Mina  

physically and mentally  and forcibly burnt  her.   She was taken to  

hospital in emergency ward and examined by Dr. Subhsh Hazra, PW  

29.  At that time she was conscious and able to speak.  The parents  

of Mina were informed on that very date.  Unfortunately, Mina expired  

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on 19.4.1996 at 5.30 AM.  It was noticed on the prescription written  

by Dr.  Subhamoy Sidhanta,  PW 19,  that  the burn was accidental.  

After receiving the complaint and registering the FIR (Ex.12),   K.K.  

Hazra, the Investigating Officer (PW-31) started inquest proceedings  

and her body was subjected to post-mortem, which was conducted  

by Dr. Mona Mukherjee (PW-18), who declared the cause of death,  

as death due to deep burn injury.  On 11.5.1997,  the investigation  

was transferred  to  another  Investigating  Officer  when PW 31 was  

transferred  from that  police  station.   However,  because  of  certain  

lacuna in investigation or even otherwise,  it  appears that  on 4th of  

June 1997, the investigation of the case was transferred to CID and  

Amol  Biswas  (PW  30)  was  appointed  as  the  new  Investigating  

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Officer.   After  investigating  the  matter  and  examining  number  of  

witnesses, the Investigating Officer filed the charge sheet against 6  

persons  namely,  Uday Chakraborthy  (husband),  Lakshmi  Narayan  

(father-in-law),  Sukumar  Chakraborthy  (brother-in-law),  Madhab  

Chakraborthy (brother-in-law),  Anandmoyee Chakraborthy  (mother-

in-law) and Bela Rani Chakraborthy (Bhattacharjee) (sister-in-law), in  

the Court for an offence under Sections 304B and 498A of IPC on  

31st October,  2000.   The  statement  of  accused  persons  under  

Section 313 of the Code of Criminal Procedure (hereinafter referred  

to as ‘Cr.P.C.’) was recorded in August 2002.  During the pendency  

of  the  proceedings,  accused  Lakshmi  Narayan  had  expired  and,  

therefore,  proceedings against  him abated.   The learned Sessions  

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Court  found  all  the  five  accused  persons  guilty  under  Sections  

498A/304B  of  IPC  and  sentenced  them  accordingly.   Aggrieved  

therefrom, the accused preferred an appeal in the High Court.   The  

High Court acquitted two persons and convicted three persons, who  

have filed the present appeal before this Court.

3. The  main  argument  addressed  before  this  Court  by  the  

appellant  is that  the learned Trial Court as well as the High Court  

have  failed  to  examine  that  the  ingredients  of  the  offence  under  

Sections  304B and 498A of  IPC were not  satisfied in the present  

case and as such they could not be held guilty of the said offences.  

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The complaint lodged by the father of the deceased did not contain  

any allegation  of  demand of  dowry, therefore,  there  was no basis  

whatsoever  to  prosecute  the  appellants.   The judgments  of  these  

courts suffer from basic infirmity of law. In the alternative, it was also  

contended that the entire family of the appellant has been behind the  

bars  for  a  considerable  time  and  thus,  the  appellants  could  be  

released on the basis of the sentence already undergone by them.  

We are unable to find any merit in either of the contentions raised on  

behalf  of  the appellants.   According to the father  of  the deceased  

(PW-1),  at  the  time  of  marriage  he  had given the  gifts  and  cash  

amount  which  were  reduced  in  writing,  however,  a  sum  of  

Rs. 10,000/- remained to be given subsequently.  The statement of  

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PW 1 was fully corroborated by  Shyam Sunder, the younger brother  

of  deceased  (PW 2),  who specifically referred  to  the  recording  of  

“Chuktiparta”.  There is no dispute raised during the trial and even  

now that Mina had died because of burn injuries and she caught fire  

at the matrimonial home.  Even, during the course of hearing, there  

was hardly any dispute that a “Chuktiparta” was written prior to or at  

the time of  marriage.   However,  according  to  the appellants  there  

was no reference of the gold chain in that “Chuktiparta”.   It  is the  

contention  of  the  appellants  that  the  prosecution  witnesses  have  

made  improvement  on  their  statements  subsequently  and  have  

added  the  description  of  the  gold  chain.   Thus,  the  story  of  the  

prosecution is unbelievable.   

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4.  The marriage itself has survived for a period of less than two  

years and PW-7, who appeared as prosecution witness, was working  

as water carrier during the marriage ceremonies of the parties.  The  

complaint by PW 1, of course, did not refer to particular items, but it  

was categorically stated in the complaint that after the marriage, the  

father-in-law, mother-in-law, sister-in-law and brother-in-laws used to  

torture Mina both physically and mentally because his son-in-law did  

not stay at the house and he had even tried to settle the issue and  

according to him, she was forcibly burnt by the appellants.  It is true  

that in the complaint, specific allegations of demand and dowry have  

not  been made,  but  during the course of  investigation  these facts  

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have come to light from the evidence on record and from statements  

of various persons made to that effect.  The question of the father  

(PW-1) having not given correct and detailed information, has been  

dealt with by the High Court and, in that reference, the following lines  

have been recorded:

“Ld.  Advocate for  the appellants vehemently  argued that this claim of demand of dowry by  the  accused  persons  is  nothing  but  an  afterthought, since there was no such mention  in  the  First  Information  Report.   In  this  respect,  he  has  placed  reliance  upon  the  decision reported in AIR 1975 SC page 1026  (Ram  Kumar  Pande-vs.-State  of  Madhya  Pradesh),  wherein  it  has  been  held  by  the  Hon’ble Apex Court that omission of important  facts,  affecting  probabilities  of  the  case  are  

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relevant under Section 11 of the Evidence Act  in  judging  the  veracity  of  the  prosecution  case.   So  far  as  the  present  case  is  concerned,  there  cannot  be  any  doubt  that  there was no mention of  the dowry claim in  the  First  Information  Report.   Naturally,  this  omission must be treated to be an important  factor  for  judging  the  veracity  of  the  prosecution case.  But whether only because  of this omission it can be said that the entire  prosecution case should be disbelieved, that  

is to be considered after considering the other  circumstances  of  the  case.   So  far  as  this  case  is  concerned,  it  appears  that  the  First  Information Report was lodged by the de facto  complainant,  who  is  the  father  of  the  deceased,  few hours  after  the  death  of  the  deceased.   We  can  very  well  imagine  the  mental condition of the bereaved father while  he  was  dictating  the  written  complaint  to  another  person.   In  fact,  if  we look into  the  evidence of this de facto complainant, then it  

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will  appear  that  he  has  also  stated  in  his  evidence  to  the  effect,  “As  I  was  mentally  upset  so  I  could  not  write  each  and  every  thing  elaborately  in  the  First  Information  Report like demand of dowry, rest cash of Rs.  10,000/- or gold chain and more dowry or Rs.  20,000/-  for  the  purpose  of  business  by  Uday.”  The explanation as given by the PW 1  in  this  respect  appears  to  be  proper  and  satisfactory and I think that the ld. Trial Judge  was  perfectly  justified  is  not  giving  much  

importance  upon  this  omission  in  the  First  Information Report.”

4. The  prosecution  has  examined  as  many  as  31  witnesses  

including the Investigating Officer, Doctors, servants of the family and  

relatives of the deceased. The cumulative effect of the documentary  

and oral evidence on record clearly shows that the appellants have  

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been  rightly  found  guilty  of  the  offence  by  the  High  Court.   The  

Learned Counsel appearing for the appellant has not been able to  

bring to our notice any evidence or piece of material thereof which  

has  not  been  considered  by  the  Courts  below  in  its  correct  

perspective.  The mere fact that “Chuktiparta” does not contain some  

items of dowry which have been referred by PW 2 in his statement  

given in the Court, would not give any advantage to the appellants, in  

the facts of the present case.  The father of the girl who lodged the  

complaint,  can hardly be blamed for  not  lodging an elaborate and  

specific  complaint  at  that  time,  as it  was a tragic  moment  for  him  

being the period immediately after the death of his daughter.  That  

time was of pain and agony for him and the accused can not take  

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any  advantage  of  this  submission  or  fact,  as  the  subsequent  

statements  of different  witnesses have fairly established on record  

that  she  was  tortured  and  harassed  for  satisfying  the  demand  of  

dowry.   We  are  of  the  considered  view  that  execution  of  the  

“Chuktiparta”  itself demonstrate that there was a clear intention on  

the part of the appellants to take dowry in and as consideration for  

marriage.  Gifts were given at the time of marriage and some items  

were also agreed to be given subsequent to the marriage.  This itself  

would be an appropriate fact to be taken into consideration and is, in  

any case, completely in line with the case of the prosecution.  The  

learned counsel appearing for the appellants relied upon the case of  

the Hazarilal v. State of Madhya Pradesh, [(2009) 13 SCC 783].  This  

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was a case which fell in the class of cases where, the Court recorded  

the finding of conviction on the basis of surmises and conjectures.  

The Trial Court have acquitted accused on the basis, that after giving  

birth to a child in the normal course she could not have entertained  

the idea of committing suicide unless she was being harassed.  This  

judgment of the Court has no application on facts and law to the case  

in hand.  The use of expression ‘could have been’ or drawing of a  

presumption  of  a  fact  does  not  arise  in  the  present  case,  as  the  

prosecution has been able to establish its case beyond reasonable  

doubt.   The death,  as  already  noticed,  is  not  disputed  and  large  

number  of  witnesses  have  made  specific  allegations  of  dowry  

demand  and  the  harassment  to  which  the  deceased  was  being  

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subjected during the short  period for  which the marriage survived.  

We are also unable to find any merit in the contention of the learned  

counsel for the appellants who relied upon the judgment of this Court  

in Arulvelu v. State [(2009) 10 SCC 206], to contend that the findings  

of the trial court as well as the High Court are perverse finding as  

they were  against  the  weight  of  evidence  as  well  as  against  the  

evidence itself.  There cannot be a dispute with regard to the legal  

preposition advanced on behalf  of the appellant in the facts of the  

present case, the judgment is hardly of any avail to the appellants.  

By and large the statement of prosecution witnesses are on similar  

lines and all the material and crucial aspects stand duly corroborated.  

Particularly, the statements of the father of the deceased, relatives of  

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the deceased and the Investigating Officer, when examined in their  

entirety, clearly established the charge against the appellants.  Thus,  

we have no hesitation in dispelling the argument of the appellants.  

The offence under Sections 304B read with 498A of IPC is made out  

in this  case and has been proved by the prosecution beyond any  

reasonable doubt.  The period of two years in a marriage itself is a  

very short period.  In fact, the deceased had died in less than two  

years of  marriage.  The expression ‘soon before her death’ has to be  

given its due meaning as the legislature has not specified any time  

which  would  be  the  period  prior  to  death,  that  would  attract  the  

provisions of section 304B of IPC.  The concept of reasonable time  

would be applicable, which would primarily depend upon the facts of  

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a given case, the conduct of the parties and the impact of cruelty and  

harassment  inflicted  upon  the  deceased  in  relation  to  demand  of  

dowry  to  the  cause  of  unnatural  death  of  the  deceased.   In  our  

considered  view,  the  marriage  itself  has  not  survived  even  for  a  

period of two years, the entire period would be a relevant factor in  

determining such an issue.   

5. The Court has to examine the cumulative effect of the evidence  

on  record  and  analyze  the  same  in  its  true  context.   Once,  the  

appellant  had  ensured  execution  of  “Chuktiparta”  at  the  time  of  

marriage  then  this  itself  would  fully  support  the  version  of  the  

prosecution and statement  of witnesses that  there was demand of  

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dowry.   These  statements  cannot  fall  outside  the  zone  of  

consideration for the Courts, in the present case.  It cannot be said  

that  the  ‘Chuktiparta”  executed  at  the  time  of  marriage  is  not  a  

material and relevant piece of evidence and cannot be relied upon or  

taken into consideration by the Courts.

6. Learned counsel  appearing  on behalf  of  the appellants,  with  

some emphasis,  contended that  the Investigating  Officer  (PW-30),  

who  took  over  the  investigation  at  the  subsequent  stage  upon  

transfer of investigation to the CID, ought to have relied and referred  

only to the statements recorded under Section 161 of Cr. PC by the  

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earlier Investigating Officer.  In other words, he had no jurisdiction to  

record fresh statement of the witnesses.  We do not find any force  

even  in  this  argument.   Firstly,  for  the  reason  that  it  is  settled  

principle  of  law that  the  statements  under  Section  161 of  Cr.P.C.  

recorded  during  the  investigation  are  not  substantive  piece  of  

evidence but can be used primarily for a very limited purpose that is  

for  confronting  the  witnesses.   If  some  earlier  statements  were  

recorded under Section 161 Cr.P.C. then they must be on the police  

file and would continue to be part of police file.  However, if they have  

been filed on judicial  record they would always be available to the  

accused and as such no prejudice is caused to anyone.  Secondly,  

when the case was transferred to CID for investigation, it obviously  

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meant that in the normal course,  the authorities were not satisfied  

with  the  conduct  of  the  investigation  by PW 31 and considered  it  

appropriate to transfer the investigation to a specialized branch i.e.  

CID.   Once,  the  direction  was  given  to  PW  30  to  conduct  the  

investigation afresh and in accordance with law, we see no error of  

jurisdiction  or  otherwise  committed  by  PW  30  in  examining  the  

witnesses afresh and filing the charge sheet  under Section 173 of  

Cr.P.C. stating that the appellants and other accused had committed  

the offence and were liable to face trial  under Sections 304B and  

498A of IPC.  The last contention raised on behalf of the appellant is  

that  the accused, even if  found guilty by this Court,  could be now  

released on the basis of sentence already undergone, in other words,  

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the prayer is for reduction of sentence.  This contention has no merit  

and  can  be  noticed  only  for  the  purpose  of  being  rejected.   The  

minimum sentence provided under law for an offence under Section  

304B of  IPC is  7  years  of  rigorous  imprisonment  and  that  is  the  

sentenced  awarded  by  the  High  Court.   Thus,  the  question  of  

accepting  this  contention,  raised before  this  Court,  does not  arise  

even for consideration.

8. For the aforesaid reasons, we find no merit in the appeal and  

hence, the appeal is dismissed.

........................................J. [DR. B.S. CHAUHAN]

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........................................J.       [ SWATANTER KUMAR ]

New Delhi July 8, 2010

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