Calcutta High Court (Appellete Side)
Swapan Biswas & Ors vs The State Of West Bengal & Ors on 19 July, 2013
Author: Toufique Uddin
Bench: Toufique Uddin
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Toufique Uddin
CRA No. 635 of 2006
SWAPAN BISWAS & ORS
-vs-
THE STATE OF WEST BENGAL & ORS
For Appellant : Mr. Sekhar Basu
Mr. A. Sinha
For the State : Mr. Manjit Singh
Mr. Pawan Kumar Gupta
Heard on : 12.06.2013
Judgment on : 19.07.2013
Toufique Uddin, J :
This appeal arose out of judgment and order dated 31.8.2006 passed by the learned Additional Sessions Judge, Second Court, Fast Track Court, Burdwan in Sessions Trial No. 14 of 2004 arising out of Sessions Case No. 72 of 2003 and convicting the appellants for commission of offence under Sections 498A/306 of the Indian Penal Code and sentencing them accordingly.
In the background of this appeal, the fact in a nutshell is as follows:-
On 30.11.1999 a written complaint was lodged by one Shri Subhasis Neogi before the Officer-in-Charge, Madhabdihi Police Station, District Burdwan, against Swapan Biswas, the husband of the victim, Smt. Sudharani Biswas, the mopther-in-law of the victim and Probodh Sen the maternal uncle-in-law opf the victim stating, inter alia, that the victim Debjani Biswas was his elder sister. Her marriage took place with accused Swapan Biswas on 19.1.1997 . He has further stated that his elder sister used to send letters to their house informing that she was subjected to torture both physically and mentally. On receipt of such letter he came to the house of his elder sister and discussed the matter with the accused persons. At that time they tried to convenience his elder sister stating that it was her in-laws house.
Being failure to bear such severe torture she came to their house before last Durga Puja and when his Jamaibabu (brother-in-law) begged excuse then they returned back to her in-laws house. He has further stated that on the last day at about 6 P.M. they came to know from one villager of Nandanpur that his elder sister became ill. On receipt of such information his elder brother Debasish Neogi immediately went to his sister-in-law's house and found that her dead. Due to unbearable torture, she was compelled to die by setting fire or by conspiracy.
A complaint was lodged.
After investigation, the police has submitted charge sheet against the accused persons under Section 498A/306 of the Indian Penal Code.
The case was committed to the Court of Sessions Judge, Burdwan by the learned Magistrate concerned.
On hearing of both sides, the learned Trial Court framed charge against the accused persons under Section 498A/306 of the Indian Penal Code .
The contents of the charges were read over and explained to the accused persons, who pleaded not guilty and claimed to be tried.
To contest this case, the prosecution examined as many as 21 witnesses, while none was examined on the side of the defence.
However, the accused persons were examined under Section 313 of the Code of Criminal Procedure. The defence case, as appeared from the trend of cross- examination of the witnesses as well as the replies given by the accused persons at the time of examination under Section 313 of the Code of Criminal Procedure, is denial of offence with a plea of innocence.
The learned trial court below on consideration of materials on record and on hearing of the learned Advocates of both sides, convicted the appellants by the impugned judgment.
Now the point for consideration is if the impugned judgment suffers from any material irregularity and calls for any interference or not.
Sections 498A/306 of the Indian Penal Code read as under:
S. 498A- Husband or relative of husband of a woman subjecting her to cruelty. - Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.- For the purpose of this section, "cruelty" means-
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
S. 306. Abetment of Suicide - If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Amongst other the learned Advocate of the accused argued mainly over the following points viz. i) the inquest report does not support the prosecution story. There are series of lacuna and infirmities in the case. So saying the learned Advocate of the petitioner submitted written notes of argument.
On the other hand, the learned Advocate of the State has extraneously argued that this is a case where the State has proved the case beyond all reasonable doubts. There is nothing to interfere with the findings of the court below. To appreciate the case from a better angle some pieces of evidence are required to be reproduced here.
Exhibit 5 is the written complaint lodged by Subhasish Neogi. It was stated that his elder sister was married to Swapan Biswas but after some time the elder sister of the complainant was tortured physically and mentally and she used to write them the incident. After receiving such letter, the complainant discussed with mother in law, maternal uncle-in-law and brother-in- law and son-in-law Swapan Biswas regarding the torture. Last occasion, at the time of Durga Puja his elder sister came to his house due to unbearable torture. As the son-in-law begged to be pardoned again she was taken to her in law's house. At 6 P.M. he came to learn from the people of Nandanpur that his sister was sick. He went there and found her dead. The cause of death of his elder sister appears to be injury due to torture perpetrated physically and mentally.
Exhibit 7 is the inquest report. The inquest report shows that in presence of the kins of the deceased Debjani Biswas it was done but no members from the side of her in laws was there. The whole body was burnt severely. Eyes, nose, eyebrow all were burnt. The inquest report was signed by one Debasis Neogy and Dr. Subhasish Neogy. But those two persons have not been examined in this case. Simply the inquest report does not show any sign of torture.
The investigation report under Section 174 of the Code of Criminal Procedure was conducted by S.I. Ratan Lal Banerjee, of Madhabdihi Police Station. He learned from primary investigation that due to quarrel of deceased Debjani and her in laws, she committed suicide. Now what nature of quarrel or what prompted her to commit suicide, the exact cause has not been given by the police personnel.
P.W. 1 is an Examiner of questioned document presently posted at C.I.D at Bhabani Bhawan. In July, 2002 he was there. On 30.3.2002 a letter purported to be dated 15th August, 1997 in a ruled diary page addressed to 'Bhai' from 'Didi' containing writings, two inland letters purported to be dated 5.9.1998 addressed to Jhuma from Farakka by Didi and the other purported letter to be dated 10..11.1999 addressed to 'Ma' from 'Ruma' one exercise book- 'khata' containing standard writings stated to be of Dabjani Biswas were received in the office of the C.I.D for examination and opinion in connection with Madhabdihi P.S. /Case No. 32/99 dated 30.11.1999.
After thorough examination and comparison with other materials, he submitted report. He made sealed cover on an envelope of the statement. He attempted to corroborate the prosecution case by stating that those were executed by one and same person.
P.W. 2 is elder brother of the victim lady. He attempted to corroborate the case of prosecution. He identified four persons, namely, Swapan, the maternal uncle Probodh, Swapan's mother and the said maid servant now remain present in court. He further stated that during the marriage furniture and other ornaments were gifted from their end and other demand was laid for cash amounting to Rs. 50,000/- from the end of the groom but they could not meet such demand as they were passing through financial stringency in view of the demise of their father. His evidence is that in the in- law's house, Debjani used to be subjected to torture physically as well as mentally and taunted over her educational qualification [B.A.(Hons.) in Philosophy by her husband Swapan Biswas and other accused persons. They came to her place and she disclosed everything. Prior to the Durga Puja she came to their house and disclosed about her intolerable torture. He claimed that in their presence Debjani was also humiliated and tortured by them. The accused persons asked her to commit suicide by stating "tor path tui dekhe ne". PW 2 said the accused persons used to compare her with the maid servant and an illicit relation between Swapan and Nanda developed. After some days, they sent Debjani to her in-laws' house at Nandanpur. She used to be taunted by her husband Swapan. Her husband used to ask her as to how she could pass her University Examination. Swapan further said that she was not even competent to perform works which could have been done by the maid servant. She also used to be subjected to humiliation saying that she had not been given lessons enough by the members of her paternal family. The other members of the family used to instigate Swapan to subject Debjani to torture and humiliation. Debjani once came to our house while she remained pregnant.
P.W. 3 is a Civil Engineer. His sister is Debjani. Her nick name was Ruma. He stated that while Debjani was residing there in the house of Swapan she was used to be subjected to torture physically and mentally. Debjani was an Honours Graduate in Philosophy. He further stated that Debjani used to be taunted at her matrimonial home over her educational qualification. He further stated that Debjani used to write letters to her matrimonial house. She was used to be humiliated and assaulted at her matrimonial home by the accused persons and were asked to commit suicide. Finding no other way, she committed suicide and died on 29.11.1999. PW 3 further stated that one day Swapan compelled Debjani to take complaint and thereafter she felt hurt in sentiment and went inside the room and set her ablaze. It is his evidence that on 4.12.99, he handed over three letters to Police written by Debjani marked as Ext. 8-series. There is also a khata bearing some handwritings, shown to Police, marked Ext. 9-series. PW 4 is a W.B.C.S. Executive. He held the inquest and prepared the report Ext. 7/2 and opined that none of the members of matrimonial family of the woman were present at the place where inquest was performed. His cross- examination shows that next of the kins made any acquisition before him.
PW 5 is a para people. He stated that Debjani used to tell during her visit at her parents' house that she used to be subjected to torture at her in-law's house by the members of in-law's family over the matters like using of soaps, taking of larger quantity of food etc. This witness adviced her to manage the situation peacefully. He successfully met the cross-examination.
PW 6 is a retired Police Constable. He identified the dead body before post mortem examination. He also signed the seizure list in respect of wearing apparels of the deceased.
PW 7 is also another villager. Hearing a halla to the house of the accused he went there and found the deceased dead. He was declared hostile.
So, too PW 8.
PW 9 is a home-guard. He was a signatory as witness in respect of the clothes, khil (wooden bar) etc. PW 10 is the mother of the victim lady. She totally corroborated the prosecution story. She further stated that Debjani told them that Swapan asked her to bring cash money from her parental house. She also stated that the maid-servant Nanda had illicit relationship with Swapan and that was detected by Debjani for which she was tortured physically and mentally. This witness stated that Debjani wrote a good number of letters to them explaining her plight and misery. It is also her evidence that when the maid-servant came to their house and offered her a flower, she fell ill and had been taken to a nursing home where she suffered miscarriage of her foetus. She identified the writings of her daughter, Ext. 15. Extensive cross- examination had been done to her.
PW 11 is a Police Personnel who is a seizure list witness in respect of khata, Ext. 9.
PW 12 is a NVF. He is a signatory to the seizure list. So, too PW 13.
PW 14 is the younger sister of the victim lady. She totally corroborated the prosecution story of her mother's evidence. According to her, her elder sister disclosed to them that once accused Swapan before Puja in 1999, pushed her in course of a quarrel and she fell on an almirah and sustained injuries, subsequently, Swapan came to the house of the complainant and begged a pardon.
PW 15 is a villager of Nandapur. She stated as to how Debjani died. She was declared hostile.
PW 16 is another resident of the same village. He is an agent of LIC. He was also declared hostile.
PW 17 is a S. I. of Police. He endorsed the case to the S.I., Nepal Bagh for further investigation.
PW 18 is another S. I. of Police. He received the written complaint from Subhas Neogi and drew a formal FIR Ext. 19 PW 19 is another Police Personnel who is a seizure list witness.
PW 20 is a retired Police constable. He is signatory to the seizure list.
PW 21 is another S.I. of Police. The case was endorsed to him for investigation first time. He performed inquest report in presence of witnesses. He did part of the investigation, collected material exhibits and examined some witnesses under Section 161 of the Code of Criminal Procedure. He seized wearing apparels, gold churi etc., collected khata, letters from the brother of the deceased. Practically, he did major part of the investigation. Confrontation was of statements of some of the hostile witnesses were taken from him. He stuck to his gun so far as the statements of hostile witnesses are concerned.
PW 22 is another I.O. who took over charge from PW 21 after he was transferred. He simply submitted charge- sheet.
The 164 statement of victim's mother Ext. 15 is just a replica of her evidence.
To constitute an offence under Section 306 IPC, the prosecution has to establish: (i) that a person committed suicide, and (ii) that such suicide was abetted by the accused. In other words, an offence under Section 306 would stand only if there is an "abetment" for the commission of the crime. The parameters of "abatement" have been stated in Section 107 of the IPC, which defines abetment of a thing as follows:
107. Abetment of a thing A person abets the doing of a thing, who First - Instigates any person to do that thing or Secondly - Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing, or Thirdly - Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation - A person who by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
In the given case, clear mens rea is not manifest. 'Abetment' is something different. Certain discord and differences are unavoidable but if the petulance, discord and differences are not expected to induce a similarly circumstanced individual in the given society to which the deceased belonged, the conscience of the court should not be satisfied to find that the accused abetted suicide of the deceased. We may put reliance on (2001) 9 SCC 618 in this regard.
The Hon'ble Apex Court has laid down in (2005) SCC (Cri) 56 that abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In case of conspiracy also it would involve mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding, the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306 IPC. There should be proximity between alleged act of cruelty and suicide. We may put reliance on 2011 (2) Supreme 220 for analogy.
In this regard, one example may be taken as follows:
A man while hurling continuously serious remarks takes another man near a rail line and asked the man to jump on the rail to put an end to his life, and the other man did it out of frustration and died. This situation may create a case of abatement. Further, abatement does not develop by a single act. It constitutes a series of mental preparations and acts culminating to provoke another man to commit suicide. The term "instigate" was considered by the Hon'ble Apex Court in (2002) SCC (Cri) 1088 wherein it was held by Their Lordships that instigation is to goad, urge forward, provoke, incite or encourage to do an act to satisfy the requirement of "instigation"
though it is not necessary that actual words must be used to that effect or what constitutes "instigation" must necessarily and specifically be suggestive of the consequences. The word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. Thus, to construe "instigation", a person who instigates another has to provoke, incite, urge or encourage the doing of an act by the other by "goading" or "urging forward". The dictionary meaning of the word "goad" is "a thing that stimulates someone into action; provoke to action or reaction".
Similarly, "urge" means to advise or try hard to persuade somebody to do something or to make a person to move more quickly and or in a particular direction, especially by pushing or forcing such person. Therefore, a person who instigates another has to "goad" or "urge forward" the latter with intention to provoke, incite or encourage the doing of an act by the latter.
As observed in Ramesh Kumar vs. State of Chhattisgarh [(2001) 9 SCC 618] where the accused by his acts or by a continued course of conduct creates such circumstances that the deceased was left with no other option to commit suicide, an "instigation" may be inferred. In other words, in order to prove that the accused abetted commission of suicide by a person, it has to be established that
(i) the accused kept on irritating or annoying the deceased by words, deeds or wilful omission or conduct which may even be a wilful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or wilful omission or conduct to make the deceased move forward more quickly in a forward direction, and
(ii) that the accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the manner noted above.
Undoubtedly, presence of mens rea is the necessary concomitant of instigation.
The ingredients of abetment of suicide are as follows:
The prosecution has to prove -
(i) the deceased committed suicide;
(ii) the accused instigated or abetted for committing
suicide (committing suicide by itself is a crime);
(iii) direct involvement by the accused in such abetment or instigation is necessary.
In this case much said much done on the side of prosecution.
Admittedly, there is no dying declaration. The "heart- valve" of this case as appears from the trend of evidence led by of the prosecution is the so-called letters of Debjani. Stoppage of heart beat makes a person collapse instantly. Let a piercing look be taken to Section 306 IPC to see if prosecution case is alive or not.
Suicide may be of two types viz. Suicide committed out of own frustration and b) suicide committed out of abatement by others. In both the cases, suicide is done by the person intending to suicide by throwing away her life. In the former case, the decision to commit suicide erupts from within the committer whereas in the latter the suicide is propelled/abated by others to the committer to do the same. So, there is a marked difference between the two kinds of suicide. In case of attempt of the former kind, the offence is punishable under Section 309 IPC. Here the person is dead. So, there is no chance for invoking Section 309 IPC against the victim. The only thing remains that abatement of suicide i.e. Section 306 IPC. Nay there is something else. The purported letters and khatas i.e. Ext. 9 and 8-series mat Ext. IV-series etc. are worthy to be scrutinised with much care and caution. Each sentence is required to be interpreted.
At best it appears to me from the letters that due to non- permitting her to stand near the main gate to talk to others and to direct her to take small quantum of food, not to waste or so, to pick up quarrel on petty affairs with the victim, to taunt her etc. are the main cause of her writting such letters. At least it seems those writting are not going to mean "instigation", "goading" or "inciting" to commit suicide. The victim made a clean breast of everything in regard to her frustration, grief, deprivation of the companion of her husband, obstruction in leading normal daily life, mortification of digesting taunting words, comparison with the maid-servant etc. Those are basis of her mental disequilibrium, frustration or so. Those cannot be equated with abatement of suicide. Mental frustration is something less than abetment. A person may die for various reasons. Somebody may be petulant. Some are not at all hyper-sensitive and is rather docile. The characteristics of human being vary from man to man, status to status, situation to situation. Human behaviour is a relative term. What is reactive to one may not be same to the other. Irrespective of all sections of human beings 'abetment' pushes all of them to the same road to commit suicide. That is to make instigation in such a fashion that the instigatee will have to fall back on the wall. There is no escape to come back therefrom but to commit suicide. Here, the situation does not show that she was pushed to such a situation.
Reliance may be had on AICRLR (2004) 563. Further, in terms of the decision as reported in 2009 (4) AICRLR 403 each individual's suicidability pattern depends on his subjective experience of mental pain, fear and loss of his respect. What mental pain was experienced or what kind of fear or threat was generated in her mind has not been reflected soundly in the letters in question.
An indepth scrutiny of evidence rather shows that when the victim was pregnant, her parent-in-laws used to take care of her health or so.
In evidence it is seen that "tor path tui dekhe ne" was stated to the victim. It is not an instigatory statement. Albeit such utterance even cannot be categorised as an act of abatement. It is a stray comment.
Mens rea is a state of mind. Unless it is found that the accused has "guilty intention" to commit the crime, he cannot be held guilty. Reliance may be had on AIR 1996 SC 1100.
PW 1 was under the belief (rather I should say suspicion) that his elder sister was murdered. But suspicion should be substantiated. At the time of holding inquest PWs 2, 3, 10 and 14 made no allegation against the husband/appellant.
The learned Magistrate, PW 4, held the inquest and stated that none of the kins made any accusation before him. Reliance may be put in Mubarak Sk. @ Mubarak Hossain (2011) 1 C Cr LR (Cal) 687.
In respect of the second charge, it was mentioned that on 19.11.99, the appellants abated commission of suicide by subjecting her to torture. In view of such charge, acceptance of an evidence in respect of charge under Section 306 IPC beyond the period mentioned in the charge i.e. 29.11.99 is not permissible in view of the decision as reported in Anil Kumar Choulia vs. Sitesh Ch. Lahiri 2004 CWN 930.
The statement made by PWs 3, 4, 10 and 14 in the learned court below have some difference with those given at the time of investigation under Section 161 of the Code of Criminal Procedure as appears from the trend of cross-examination. So, their evidence so far as torture for demand of dowry etc. is concerned is embellishment. The demand of dowry of cash money etc. was not mentioned in the FIR. It is of great significance. The prosecution case becomes doubtful. Swapan allegedly once pushed Debjani by which she fell on the almirah and sustained injury. This fact also not mentioned in the FIR. The evidence of I.O. shows that the relation witnesses did not state before the I.O. over the vital facts viz. torture on account of demand of dowry etc. The I.O. admitted that PW 10 informed that one occasion Debjani was pushed by Swapan. But that fact alone does not mean physical or mental torture to attract Section 306 IPC. Nor does it show injury to limb life or health.
PWs 2, 3, 4 and 11 left omnibus allegations against the appellant nos. 2 and 3. Stray domestic quarrels, perfunctory abuses, if at all any, will not construe abatement of suicide in view of the decision reported in Surajmal Banthia vs. State of W.B. (2003) C Cr LR (Cal) 530. Debjani appeared to be sentimental and hyper sensitive to ordinary petulance, discord and difference in domestic life. Therefore, an inference of application of 'abetment' is precluded in view of the decision in Ramesh Kumar vs. State of Chattisgarh 2002 SCC (Cri) 1088.
It further appears that there is a considerable lapse of time between the death of Debjani and production of alleged letters.
In regard to the report of handwriting expert, we may have aid to the decision as reported in Magan Beharilal vs. State of Punjab AIR 1977 SC 1091 wherein it was held "It is now well settled that expert opinion must always be received with great caution. There is a profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law".
The Hon'ble Supreme Court quoted from a judgment of the Supreme Court of Michigan wherein the Court observed as follows:
"Everyone knows how very unsafe is to rely upon anyone's opinion concerning the niceties of penmanship-opinions are necessarily received and may be valuable but at best this kind of evidence is a necessary evil".
In the instant case the letters purported to have been written by the deceased which have been exhibited do not ascribe any specific role to the appellants. In this regard, we may refer to Vijay vs. State of Maharashtra 2009 (1) C Cr LR (SC)
284. Though, it is not expected in such type of cases to get independent witness for corroboration of prosecution case, yet, at least, some independent witnesses came but they became hostile. The materials on record shows that initially the appellants treated Debjani cordially. This is an indicator to negate the allegation of demand of dowry in the light of the decisions reported in Sanju @ Sanjay Singh Sangar vs. State of M.P. (2002) C Cr LR (Supreme Court) 770; Ramesh Kumar vs. State of Chattisgarh (2002) SCC (Cri) 1088 and State of W.B. vs. Orilal Jaiswal 1994 SCC (Cri) 107. The indepth of analysis of the letters alleged to have been written by Debjani show that she has been a sentimental person and hyper-sensitive to ordinary petulance and discord and difference in domestic life. She lacks in adjustment capacity. If at all, it is believed that her husband was in illicit relationship with the maid-servant, that fact itself cannot be a cause for abatement to commit suicide. Nowhere in the evidence it is available that at the cost of such alleged extra- marital relationship of her husband with the maid-servant, she was made to suffer in conjugal life. True, it is that in case of a married lady, such a situation may irk the sentiment of the lady but that does not at all attract the ground of 'abatement'/ "Instigatory" statement. The case falls short of yardstick to prove the case under Section 306 IPC. Reliance may be put in Amalendu Pal @ Jhantu vs. State of W.B. (2010) 1 C Cr LR (SC)
217. The evidence of PWs 3, 10 and 14 stating that Debjani disclosed to them that she was not treated well by her husband and in-laws'. This evidence is not admissible in view of the decision as reported in Kansraj vs. State of Punjab AIR 2000 Supreme Court 2324 and Gananath Pattanaik vs. State of Orissa 2002 SCC (Cri) 461.
Regarding Section 498A IPC, there is no consistent and sound evidence.
Therefore, considering the totality of the circumstances and the materials on record available in the light of legal principles as propounded by the Hon'ble Courts, I am of the view that the learned trial court did not come to a correct decision and as such it is liable to be set aside.
Accordingly, the appeal succeeds.
The appellant No. 1, the husband of the deceased is reported to have already served out the sentence.
The other appellants be released from their bail bonds and set free immediately.
Let a copy of the judgment alongwith the lower court record be sent down immediately to the learned court below for necessary action.
Urgent certified copy of this judgment, if applied for, be given to the parties on priority basis.
(TOUFIQUE UDDIN, J.)