Calcutta High Court (Appellete Side)
Baidyanath Das @ Bedi And Others vs The State Of West Bengal on 20 January, 2014
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 136 of 2003
Baidyanath Das @ Bedi and Others
-vs-
THE STATE OF WEST BENGAL
For Appellants: Mr. Bhaskar Seth
Mr. Gurusaday De
For the State : Mr. Amartha Ghosh
Ms. Fariah Hossai
Heard on : 07.01.2014 and 15.1.2014
Judgment on : 20. 01.2014
Toufique Uddin, J :
This appeal arose out of judgment and order of conviction dated 28.03.2003 passed by learned Additional District & Sessions Judge, Fast Track, First Court, Suri, Birbhum, Rampurhat in Sessions Trial No. 2 October 2002 and Sessions Case No. 102 of 2002, thereby convicting the appellant for commission of offence under Section 498A/306/34 of the Indian Penal Code and sentencing them accordingly.
The background of this appeal, in a nutshell is as follows :
One Smt. Jharna Byen, the daughter of the defecto complainant of this case, Shri Montu Bayen was married about six years back to Dilip Bayen of Deucha according to Hindu rites and Customs. First two years they passed well in her matrimonial home. Thereafter her husband, her father-in-law, namely, Bodi Bayen and mother-in-law Felu Bayen started torturing her in various ways both physically and mentally. Whenever Jharna used to visit her father's house, she disclosed about the factum of torture and ill treatment meted to her. Her parents still sent her back to the matrimonial home with a hope of her better future and happiness. She disclosed that the members of her in-laws house will not allow her to survive. On 30.7.1999, at 5 p.m. one Sasti Das of Village Deucha informed the defecto complainant that on that date during noon Jharna met with an unnatural death at her in-laws house by means of rope. She was compelled to commit such act because of her failure to tolerate continuous torture and ill treatment caused to her by the members of in-laws place.
A written complaint was lodged.
After investigation, police submitted charge sheet under Section 498A/306/34 of the Indian Penal Code against the accused persons.
The case was committed to the learned Court of Sessions by the learned Magistrate.
On hearing of both sides the learned trial court framed charges under Section 498A/306/34 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.
The prosecution examined 11 witnesses while no witness 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 the 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.
On trial, the learned court below convicted the accused persons by the impugned judgment.
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 follows :
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 wilful 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.
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.
The learned Advocate of the appellant argued that ingredients of offence in question have not at all be proved by the prosecution. In addition he has submitted a written argument. The relevant parts will be dealt with in the following paragraph as and where found necessary.
In support of his contention, the learned Advocate of the appellant cited before me following decisions:
i) Sohan Raj Sharma -vs- State of Haryana reported in AIR 2008 SC 2108;
ii) Ramesh Kumar -vs- State of Chattisgarh reported in AIR 2001 SC 3837;
iii) Atmaram s/o. Raysingh Rathod -vs- State of Maharashtra reported in 2013(2) AICLR 296.
iv) S.S. Cheena -vs- Vijoy Kumar Mahajan & Anr. Reported in 2010(4)AICLR Page 1 On the other hand, the learned Advocate of the State countered all the points advanced by the learned Advocate of the appellants.
The learned Advocate of the State further submitted that the decision submitted by the learned Advocate of the appellants are distinguishable on facts and circumstances and as such no reliance can be put on them.
I have heard their submissions carefully.
To appreciate the case from a better angle some relevant pieces of evidences are required to be mentioned here.
F.I.R was lodged on 30th July, 1999 (Marked exhibit I) That contains the allegations as have been narrated above.
Exhibit 2 is the inquest report conducted by one Ganga Narayan Kongar, Sub-Inspector of Police of Mohammad Bazar Police Station on 30.7.1999. Therein primarily he found the mark of a knot of rope on the right side of the neck of the deceased of red and black colour. From the primary investigation it revealed to him that as the victim could not give birth to any child, for this reason, there was quarrel taken place between the deceased and the members of in-laws and they used to torture her both physically and mentally. That is why she committed suicide being hanged by rope.
Post Mortem report is marked to Exhibit 5. There appears one non-continuous ligature mark around the neck and the Doctor opined that the death was due to hanging.
P.W. 1 is the defecto-complainant. He was examined. In his evidence he stated after keeping a link with FIR that initially 2 years she passed her days well but thereafter when she could not conceive a child, quarrel ensued. He claimed that they used to torture both physically and mentally and that is why she committed suicide. His cross-examination shows that he did not disclose the incident of torture on such ground to anybody else. However, it appears from his cross-examination that the accused persons arranged for medical treatment for her not giving birth to any child . Doctor never gave any final opinion that Jharna will never conceive. He proved the written complaint.
P.W. 2 is the independent witness. He has stated that Jharna died because of strangulation. He was declared hostile.
P.W.3 is the uncle of the deceased. He supported the P.W.1 by stating that the deceased was subjected to torture both physically and mentally by her husband and other in-laws, i.e. father-in-law, mother-in-law for her failure to give birth to any child. He has stated that he also heard from Jharna that she was assaulted by the accused persons and they rebuked her in such languages which was so harsh and the same is not tolerable. But unfortunately what kind of rebuke was made or what kind of harsh ward was used has not been mentioned. Moreover, he heard the statement from the deceased. Such statement does not come under the purview of Section 32(1) of the Evidence Act.
P.W.4 is the brother of the deceased. He heard the incident of ill- treatment from her deceased sister. He attempted to improve the case of the prosecution by stating that reaching the place of occurrence, he heard from local people that the accused persons killed Jharna. This is a new story disclosed by none else. So it is very difficult to put reliance on this witness.
P.W.5 prepared the formal F.I.R (exhibit 4). P.W.6 is a Home Guard. He carried the dead body to Suri District Hospital for holding post mortem examination.
P.W.7 is the doctor, who on examination of the dead body opined that death was due to asphyxia following hanging, which was suicidal and ante-mortem in nature.
P.W.8 is an independent witness. He signed the inquest report. He did not say anything about the internal matter or alleged torture. He has stated that on hearing the cry, coming from the house of Mantu Byen, he went there and came to know the matter.
P.W.9 is another independent witness. He stated that the deceased disclosed to his wife that she told "DIDI AAR EI JIBAN RAKHBONA". He further told that due to her failure to give birth to any child, she decided that. He has stated that Jharna did not disclose anything against the accused for taking such decision. This witness was declared hostile.
P.W.12 is a relation. He attempted to corroborate the prosecution case. He is a seizure list witness.
P.W.11 is the Investigating Officer. After conclusion of investigation he submitted charge sheet.
The accused persons were examined thoroughly under Section 313 of Cr.P.C. examination over the incriminating matters. But the accused persons denied everything.
Admittedly, the deceased has died at the house of in-laws place by hanging. Obviously, the presumption under Section 113A of the Evidence Act comes into operation but such presumption will be accepted in case the prosecution becomes able to prove their case.
In this regard, the decision as reported in Ramesh Kumar - vs- State of Chhattisgarh, A.I.R 2001 S.C. 3837(supra) is very relevant. Therein the Hon'ble Apex Court propounded as follows :-
"Before the presumption under Section 113A may be raised the foundation thereof must exit. A bare reading of Section 113A shows that to attract applicability of Section 113A. It must be shown that (I) the woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the abovesaid circumstances, the Court may presume that such suicide had been abetted by her husband or by such relatives of her husband. The Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory, it is only permissive as the employment of expression 'may presume' suggests. Secondly, the existence and availability of the above said three circumstances shall not like a formula, enable the presumption being drawn. Before the presumption may be drawn the Court shall have to have regard to 'all other circumstances of the case may strengthen the presumption or may dictate the conscience of the Court to abstain from drawing the presumption. The expression- 'The other circumstances of the case" used in Section 113A suggests the need to reach a cause and effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least the presumption is not an irrebutable one"
.
In this case, barring the statement, "DIDI AAR EI JIBAN RAKHBONA" and "ORA BODH HOI AMAKE AAR BANCHTE DEBENA", there is no other evidence as regards instigation. But "ORA BODH HOI AMAKE AAR BANCHTE DEBENA", "DIDI AAR EI JIBAN RAKHBONA" are two mutually exclusive terms and both are directed towards opposite directions. The interpretation of above two sentences at least does not show that the appellant reached at the end of her teether by continuous harassment to throw away her life. There is no General Diary or complaint or disclosure to any independent witness.
In the case of Atmaram -vs- State of Maharashtra as reported in 2013(2) AICLR 296, the Hon'ble Apex Court held prosecution has not been able to prove beyond reasonable doubt that accused was guilty of any wilful conduct which was of such a nature as was likely to drive deceased to commit suicide and presumption under Section 113A of the Evidence Act is not attracted, and, therefore, the appeal was allowed.
In the case of Sohan Raj Sharma -vs- State of Haryana as reported in AIR 2008 SC 2108, the Hon'ble Apex Court held "abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing - More active role which can be described as instigating or aiding doing of a thing is thus required before a person can be said to be abetting suicide."
'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 instigating. 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 "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.
(iii) 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 s a crime);
(iii) direct involvement by the accused in such abetment or instigation is necessary.
Barring the solitary statement "DIDI AAR EI JIBAN RAKHBONA" and "ORA BODH HOI AMAKE AAR BANCHTE DEBENA", alleged hurling of abusive words and threatening, nothing else transpired in the present case in the form of goading, provoking, inciting as required for proof of a case under section 306 IPC .
Relevently, it may be mentioned that there is a marked difference between " intimidatory" statement and "instigatory" statement. "Intimidatory" statements may give rise to two types of consequences, (a) either the person to whom such statements are made may be frightened and may be at receiving end or he may be angry enough to retaliate whereas (b) instigatory statements falls within the category of goading, provoking etc. The nature of languages used by the prosecution witnesses for commission of suicide by the deceased falls within the category of intimidatory statements in which the ingredients of Section 107 IPC for abetment of offence are wanting.
In the case of S.S. Chheena -vs- Vijay Kumar Mahajan & Anr, as reported in 2010(4) AICLR page 1, the Hon'ble Apex Court quashed the framing of charge holding that the deceased was undoubtedly hypersensitive to ordinary petulance, discord, differences which happen in our day-to-day life. Sensitivity of each individual differs from the other. Different people behave differently in the same situation.
So it is clear that the prosecution at least should prove a case and thereafter the presumption shall be drawn. In this case there is no iota of evidence that soon before the death the victim was subjected to cruelty and assault. An omnibus allegation was thrown by some of the prosecution witnesses, who happened to be the relative of the victim. Correct it is that in such type of case, outsiders may not be available as direct witness but the evidence shows that the victim used to cry after being assaulted. So it is expected that some independent persons should come and say about the torture, if any. It is hardly believeable that as a matter of course, the independent persons of the place of in- laws will support only the members of in-laws. There is no medical evidence as regards injury or so. Further, the record does not show that there was any demand of dowry. So I am of view that offence under Section 498A of the Indian Penal Court has not at all been proved. I find support from the decision of Kans Raj -vs- State of Punjab reported in AIR 2000 SC 2324, wherein it was held that statements made by the deceased prior to her death to her relations and acquaintance are not at all admissible. The statement regarding assault on the ground of not being able to conceive a child by the victim is reported by the witness to have been disclosed to them but such statement has no live link proximity to the cause of death. There is no evidence that such statement forms a chain of circumstances culminating in the death of the victim lady.
Failure to give birth a child is itself a self-emanating instigation which in the present case led the deceased to end her life. The prosecution could not prove that the situation reached at such a stage wherefrom the appellants could not come back and that is why she committed suicide.
The last but not the least aspect is that the learned Advocate of the appellants argued as follows :
"P.W. 6 in his deposition stated that he had been to place of occurrence at about 9-00 P.M. on 30.7.1999 and returned to police station at about 10/11 P.M. and that the dead body was taken to the police station first and the same was kept there during night and in the following morning he brought the same to Suri District Hospital i.e., on 31st July. Interestingly the post moretem report (Exhibit 5) of deceased Jharna Das in two places speaks that the post mortem of deceased Jharna Das was held on 30th July i.e. on the alleged date of incident. Post mortem on the dead body of deceased Jharna Das was performed by Dr. Monoj Kumar Dutta who has been examined in the case as P.W. 7 who exhibited the said post mortem report as Exhibit 5. In his examination in chief, he confirms that the day was 30th July. But the year was mistakenly mentioned as "2000" and that should be "1999". Therefore, the date remains 30th July, 1999 for the date of holding post mortem on the dead body of deceased Jharna Das. Now, the time of holding post mortem if taken into consideration, t was about 12-00 noon on 30th July, 1999. This is also clarified in the cross-examination of the P.W.
7. Further Post Mortem Report of deceased Jharna Das only depicts the reference of Md. Bazar U.D. Case No. 25/99 dated 30.7.1999 though the said reference was allegedly drawn from inquest report. Therefore, the inquest report which has been marked as Exhibit 2/6 as well as the said written complaint which has been marked as Exhibit 1 and formal FIR, which has been marked as Exhisbit 4 , all became irrelevant and no reliance can be placed upon them".
I find force in the above noted argument. Although such discrepancies do not take away the truth that the victim died but at the same time the discrepancies give rise to sufficient doubt the benefit of which should be given to the appellants.
Therefore, considering the pros and cons of the matter, I am of view that the prosecution has not been able to prove the case beyond all reasonable doubts.
The findings of the learned court below does not appear to be well founded in the light of above noted decisions and interpretation of facts and circumstances.
Accordingly, the judgment and the sentence passed by the learned court below are set aside.
The appellants be released from bail bonds forthwith. Let a copy of judgment and L.C.R be sent back to the court below immediately.
Urgent certified copy of this judgment and order, if applied for, be given to the parties on priority basis.
sks (TOUFIQUE UDDIN,J)