Court: Calcutta High Court
Bench: JUSTICES Joymalya Bagchi, J. & Rajarshi Bharadwaj
Gobinda Das Vs State Of West Bengal On 3 January 2018
Law Point:
Indian Penal Code, 1860 — Sections 306, 498A — Evidence Act, 1872 — Section 113A — Abetment of suicide — Cruelty — Presumption — Death of deceased by sustaining burn injuries after about 1 month of hospitalization — Incident occurred 10-12 years after marriage of couple — No torture on victim within first 5-6 years of marriage — Allegations of torture are general and omnibus and none of the witnesses were able to specify any said incident of torture on victim — No allegations of torture arising out of demand of dowry — Suicide committed by deceased at her matrimonial home ten/twelve years after marriage — Prosecution cannot take advantage of statutory presumption under Section 113A of Evidence Act to prove its case — Prosecution evidence with regard to torture on victim is too vague and non-specific and does not fall within ambit of Section 498A, IPC nor would conduct of appellant husband as abetment to commission of suicide by her — Conviction and sentence imposed on appellant set aside.
JUDGEMENT
Nobody appears in support of the appeal, when the matter is called on. Mr. Satadru Lahiri, learned advocate, is requested to appear in this matter as amicus curiae and assist this court.
Mr. Madhusudan Sur, learned advocate along with his junior, Mr. Monoranjan Mahato, learned advocate appears on behalf of the State.
The appeal is directed against judgment and order of conviction and sentence dated July 31, 1995 passed by the learned Additional Sessions Judge, Fourth Court at Howrah in Sessions Trial No. IV (January) of 1995 convicting the appellant for commission of offence punishable under Sections 498A/306 of the Indian Penal Code and directing him to suffer rigorous imprisonment for three (3) years and to pay a fine of Rs. 2,000/- (Rupees two thousand) only in default to suffer rigorous imprisonment for six months more for the offence punishable under Section 498A of the Indian Penal Code and to suffer rigorous imprisonment for ten (10) years and to pay a fine of Rs. 2,000/- (Rupees two thousand) only in default to suffer rigorous imprisonment for six months more for the offence punishable under Section 306 of the Indian Penal Code with a direction that both the sentences shall run concurrently.
The prosecution case as alleged against the appellant is to the effect that he married the victim, namely, Manju Das ten/twelve years prior to the incident and had subjected her to cruelty. As a result the victim poured kerosene oil on herself and committed suicide on March 24, 1991. She was admitted to hospital and finally died on April 21, 1991. Over such incident, prosecution witness no. 1, namely, Tapan Mahanta, brother of the victim registered first information report being Liluah Police Station Case No. 72 dated April 21, 1991 under Sections 498A/306 of the Indian Penal Code against the appellant and one Pradip Das, the brother in law of the victim and his wife, namely, Rakhi Das.
The case being a sessions triable one was committed to the Court of Sessions and was transferred to the Court of the learned Additional Sessions Judge, Fourth Court cum the Judge, Special Court under the Essential Commodities Act at Howrah for trial and disposal. Charges were framed under Sections 498A/306 of the Indian Penal Code against the appellant and the other accused persons. They pleaded not guilty and claimed to be tried.
In the course of trial the prosecution examined twelve (12) witnesses and exhibited a number of documents.
The plea of the appellant and other accused persons was one of innocence and false implication.
In conclusion of trial, the trial judge by judgement and order of conviction and sentence dated July 31, 1995 convicted and sentenced the appellant, as aforesaid. However, the other accused persons were acquitted.
Mr. Satadru Lahiri, learned amicus curiae, submits that the incident occurred twelve years after the marriage of the couple and there is no evidence of torture on the victim/housewife on demands of dowry. He also submits that the victim was alive for about a month and did not make any dying declaration implicating the appellant. On he other hand, the prosecution witnesses admitted that the victim was an obdurate lady and in all probability had committed suicide in an impulsive manner. Mr. Lahiri accordingly prays for acquittal of the appellant.
On the other hand, Mr. Madhusudan Sur, learned advocate appearing for the State argues that evidence of the witnesses showed that the appellant was a drunkard and the victim was tortured by him on various occasions. On the date of occurrence the victim being unable to bear such torture poured kerosene oil on her person and committed suicide. Accordingly, he argues that the appeal is liable to be dismissed.
Let me now consider the evidence on record.
Prosecution witnesses no. 1 to 4 are the relations of the victim. Prosecution witness no. 1 is the brother of the victim and the defacto complainant in the instant case. He deposed that four/five years after the marriage between the victim and the appellant there was discontent in the matrimonial home of the victim. The victim used to complain that there was quarrel in her family and the appellant physically tortured her. He further deposed that he visited the matrimonial home of the victim on a number of times to reconcile the matter, but to no avail. One day Pradip Das came to their house and informed that his sister had suffered burnt injuries and had been hospitalised. He went to the hospital to see his sister, who was unconscious. His sister survived for about a month. After the death of his sister he reported the matter to the officer in-charge, Liluah Police Station. He proved the written complaint which was treated as first information report being Exhibit-1. He deposed that as his sister was unconscious he was unable to find out the cause of her death.
In cross examination, the prosecution witness no. 1 admitted that marriage of the victim was solemnised ten/twelve years prior to the incident. A son and a daughter had been born from the couple. He stated that he could not remember the date when he visited the matrimonial home of his sister for making settlement regarding quarrels between herself and the appellant. He admitted that he regularly visited his sister while she was in hospital and had talks with her on two or three occasions. He further admitted that his sister was obdurate, sentimental and ill-tempered and he thought that due to such reason she had set herself on fire.
Prosecution witness no. 2 is the father of the victim. He deposed that after marriage whenever the victim visited her paternal home, she complained of torture at her matrimonial home. He could not say why his daughter committed suicide at the matrimonial home.
In cross examination, the prosecution witness no. 2 stated that he could not remember any incident of torture on his daughter during her lifetime.
Prosecution witness no. 3 is the mother of the victim. She also admitted that she did not know as to why her daughter committed suicide by pouring kerosene oil on her person.
In cross examination, the prosecution witness no. 3 stated that she never disclosed anything to anybody over the allegation of torture on her daughter by the appellant.
Prosecution witness no. 4 is the elder sister of the victim. She deposed that the victim used to complain of torture to her. She asked her to adjust at her matrimonial home. She could not say as to why her sister committed suicide.
In cross examination, the prosecution witness no. 4 stated that she was not examined by the police over the incident.
Prosecution witness no. 10 is a neighbour of the appellant. He deposed that the victim died due to burn injuries. On the date of occurrence hearing a row he went to the spot and found that the victim was burning in the courtyard of her matrimonial home. She was removed to the hospital and died there. He further deposed that he did not notice any bad blood between the victim and the appellant.
Prosecution witnesses no. 9 and 11 are the medical witnesses. Prosecution witness no.
9 held post mortem on the dead body of the victim. The post mortem report reads as follows :-
“Burnt Chassed body extending from face, neck, chest, abdomen, both upper limbs interiorly and back of neck, back of chest, back of abdomen, both buttocks and both upper limbs posteriorly. The death in my opinion was due to shock and septicaemia as a result of burns – ante mortem in nature.”
He opined that such burn injuries might be caused by setting fire on the person of a man after pouring kerosene oil.
In cross examination, the prosecution witness no. 9 stated that when the victim was brought to the hospital with burn injuries, statement would obviously be made to the Doctor with regard to the cause of injury, when she was conscious.
Prosecution witness no. 11 was a Surgeon attached to Howrah General Hospital. He deposed that on March 24, 1991 the victim was admitted to the hospital. He treated the victim who expired on April 21, 1991 due to complications arising out of burn injuries.
Prosecution witness no. 12 is the investigating officer of this case.
I have gone through the aforesaid evidence in the light of the submissions made on behalf of the parties. It appears that the incident occurred ten/twelve years after the marriage of the couple. It has also come on record that there was no torture on the victim within the first five/six years of marriage. Even the allegations of torture thereafter are general and omnibus and none of the witnesses were able to specify any instance of torture on the victim. It is also apposite to note that there is no allegation of torture arising out of demands of dowry.
In view of the aforesaid facts, particularly, the general and omnibus nature of allegations relating to the torture on the victim, I am unable to come to a finding beyond reasonable doubt that the disturbances in the life of the victim were due to ordinary wear and tear of her matrimonial life or would constitute cruelty as defined under Section 498A of the Indian Penal Code.
It has been argued that as the victim had committed suicide owing to such torture, the prosecution case ought to be believed. It is true that the victim had committed suicide at her matrimonial home. However, such suicide had taken place ten/twelve years after marriage and, therefore, the prosecution cannot to take advantage of the statutory presumption under Section 113A of the Indian Evidence Act to prove its case.
Hence, a graver onus vests on the prosecution and it is for the prosecution to prove that the acts of the appellant was of such nature that a person of ordinary prudence would be compelled to commit suicide. Unfortunately, no such evidence apart from vague and casual allegations is forthcoming from the mouths of the prosecution witnesses. In fact, the prosecution witness no. 10, a neighbour of the appellant, disputes any allegation of torture and had deposed that there was no bad blood between the couple during the lifetime of the victim. Furthermore, prosecution witness no. 1 admitted during cross examination that the victim was an ill-tempered lady and in all probability had committed suicide due to her impetuous nature. Other witnesses also did not attribute the torture on the victim by the appellant as the reason for commission of suicide.
I am, therefore, of the opinion that the prosecution evidence led with regard to the torture on the victim is too vague and non-specific and does fall within the penal ambit of Section 498A of the Indian Penal Code nor would the conduct of the appellant be construed as abetment to the commission of suicide by her.
Finally, the victim was alive for about one month after hospitalisation. Prosecution witness no. 4 stated that she spoke to the victim twice or thrice during her hospitalisation. Strangely enough no statement of the victim was recorded with regard to the cause of her committing suicide.
The aforesaid circumstances fortify me to come to the conclusion that the victim being an obdurate lady had an impulsive manner resorted to the path of self extermination and the acts of the appellant cannot by any stretch of imagination establish the ingredients of the alleged offences beyond reasonable doubt.
In view of the aforesaid discussion, I allow the appeal and set aside the conviction and sentence imposed upon the appellant.
Bail bonds furnished by the appellant shall be discharged after six months in terms of Section 437A of the Code of Criminal Procedure.
I record my appreciation for the able assistance rendered by Mr. Satadru Lahiri, learned advocate, as amicus curiae in disposing of the appeal.
Let a copy of this judgment along with the lower court records be sent down to the trial court immediately.
I agree.
Appeal allowed.
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