Gauhati High Court
Hiten Sarma vs The State Of Assam on 18 December, 2017
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
1
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Criminal Appeal(J) No. 93/2015 and 210/2015
In criminal appeal (J) 93/2015
Hiten Sarma
Son of late Prafulla Sarma
Bhogpur, Patacharkuchi Police Station
Barpeta District (Assam).
Appellant
Versus
State of Assam
Respondent
For the appellant : Mr R De, amicus curiae
For the informant : Mr B Chakraborty
Advocate.
For the State : Mr PS Lahkar, APP.
In criminal appeal(J) 210/2015
(1) Tapan Ranjan Goswami
Son of Trailokay Nath Goswami
(2) Jutika Goswami
Wife of Tapan Ranjan Goswami
Resident of Kaharpara village
Nityananda post office
Patacharkukchi police station
Barpeta district(Assam).
Appellant
-versus-
2
(1) State of Assam.
(2) Bhanu Devi
Wife of Bhupen Sarma
Bhattadev Nagar
Pathsala, Patacharkuchi police station
Barpeta district(Assam).
Respondent.
For the appellant : None appeared.
For the informant : Mr B Chakraborty
Advocate.
For the State : Mr PS Lahkar, APP.
:BEFORE:
HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN
Date of hearing : 18.11.2017
Date of judgment : 18.12.2017
JUDGM ENT AND OR DER (CAV)
These appeals are directed against the order of the learned Additional Sessions Judge, Bajali, Pathsala dated 8.7.2015 in sessions case 26/2008 whereby appellants are sentenced to R/i for 7 years with fine of Rs 5,000 each u/s 304(B) of the IPC and in default to s/i for 3 months and further they are sentenced to R/i for 5 years with a fine of Rs 5,000 each u/s 306/34 of the IPC and in default to S/i for 2 months with further direction both the sentences to run concurrently.
(2) I have heard Mr R De, learned amicus curiae for appellant (Hiten Sarma) and Mr B Sarma, learned additional public prosecutor for the state. However none appears for other two appellants.
(3) The background facts in a nutshell are as follows.
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(i) One Smt. Bhanu Devi lodged an FIR on 26.6.2007 to the effect that her
younger sister Urvasi Devi was given marriage to Hiten Sarma on 10.5.2006 as per the Hindu rights and thereafter they led a conjugal life. It is alleged that her husband Hiten Sarma and sister-in-law Jutika Devi and her husband Tapan Goswami started torturing her both physically and mentally demanding money, landed property in dowry. The landed property belonged to the elder brother of said Urvashi situated at Pathsala was demanded by them. As result of denial to fulfil the demand she was subjected to torture and harassment by her husband and in-laws. Unable to bear the torture, Urvashi committed suicide by drowning her in a pond near the house of her husband on 26.6.2007.
(ii) On the basis of the said FIR investigation started. The dead body of the victim woman was recovered from the pond near the house of accused. One bunch of key was recovered from the body of the deceased belong to the Godrej alimirah of the deceased. On opening of the alimirah the police recovered two letters(suicide note) which were written on the date of her suicide that the accused persons were responsible for her death. Necessary inquest report was prepared and the dead body was sent for post mortem examination.
(iii) During investigation incriminating evidence in the form of oral as well as medical evidence regarding the death of Urvasi was collected which reflects the death was caused by asphyxia as a result of drowning. All the above accused persons were put on trial for the offence u/s 304(B) of the IPC as per the chargesheet submitted against them.
(iv) On committal of the case to the court of sessions, the case came up for trial before the Addl. Sessions Judge, Bajali, Pathsala. All the accused persons faced trial and denied the charge u/s 304(B)/306/34 of the IPC framed against them and demanded a trial. Prosecution examined as many as 12 witnesses and exhibited some documents and defence examined none. The plea of defence is of total denial. Statement of accused persons were recorded u/s 313 of the CrPC and at the conclusion of trial all the accused persons were held guilty and sentenced as aforesaid. Hence these appeals.
(4) Learned amicus curiae appearing for appellant (Hiten Sarma) advanced his arguments solely on the point that the suicide note purportedly written by the 4 deceased has not implicated her husband for any torture nor has specifically spell out the dowry demand by her husband. That being so and also in view of the fact that there is no instigation on the part of accused appellant to commit suicide by his wife, the appellant is no way liable to be convicted under the Sections 306 IPC. Reliance is placed on AIR 2008 SC 2108, Suhan Raj Sarma vs. State of Haryana; 2009 (16) SCC 605, Chitrese Kumar Chopra vs. State; 2009 (4) SCC 52, Kishangiri Mangalgiri Goswami vs. State of Gujarat, wherein it is held that in absence of proof of direct or indirect acts of the incitement to commission of suicide, the ingredient of Section 306 of the IPC is not made out. Referring to the evidence on record argument was put forward on behalf of appellant that save and except certain allegation of torture or harassment no specific evidence is made out to constitute cruelty on the victim woman to make out an offence u/s 304(B) of the IPC.
(5) Per contra learned counsel for State submitted that the suicide note coupled with the evidence on record is more than enough to hold that the victim was subjected to cruelty within the meaning of the provisions of Section 304(B) and such repeated conduct/omission and commission on the part of the appellant would amount to abetment to commit suicide. Learned counsel thus submitted that there was no irregularity of infirmity in the impugned judgment so as to be interfered with.
(6) Mr B Chakraborty appearing for the informant vehemently contended that the evidence on record coupled with the facts and circumstances of the case surfaced various facets of the case to indicate that since after the marriage the deceased wife of appellant instead of getting warm love and respect was subjected to various harassments and mental torture created by the appellant and other in-laws for which she was alone without there being any moral support as expected by a newly married wife. Since after a month from the marriage till her death, for around a year, the deceased has been tormented demanding land and money by her husband and in-laws which became unbearable for the deceased for which she took the extreme step to finish her life. Accordingly justifying the said judgment and order it is contended that it does not call for interference. More so when the defence did not rebut the legal presumption envisaged under Section 113(A)(B) of the Evidence Act.
(7) With the said submission let us probe into the evidence on record.
5(8) There is no denial that the deceased died of drowning which is reflected in the evidence of the medical officer/PW1 Dr Sanjib Kr Sarkar. He opined that death was due to asphyxia as a result of drowning vide exhibit 1 is the PM report and exhibit 1(1) is his signature. Next, evidence of the brother and sister of the deceased is crucial. So let us have discussed the evidence of those witnesses. Smt. Bhanu Devi, sister of the deceased as PW2 and Lakshi Narayan Sarma, brother of the deceased as PW3 stated that their sister Urvasi was given marriage to accused Hiten Sarma on 10.5.2006 and after one month of the marriage she reported that her husband Hiten Sarma and his sister Jutika Devi and Tapan Ranjan Goswami demanded some land situated at Pathsala in the name of PW3 and as they could not fulfil the demand, she was subjected to physical and mental torture.
(9) PW 3 had a talk with accused appellant about their inability to give the property and asked them to live peacefully. Thereafter prior to a few days of occurrence Urvasi came to her house and complained that as the land was not given to accused persons she was subjected to physical and mental torture and accused Jutika demanded Rs 1 lakh. But the said demand also could not be fulfilled by them and then on 26.6.2007, they received a call from the relative of the accused that Urvasi was found missing from the house since the night of 12 o'clock and on their arrival after a search her dead body was found at around 1 PM floating in a pond in front of the house of accused and brought out of the pond. Uncle of the accused Hiten took out a Godrej key from the clothes of the dead body and the Godrej almirah was opened by the police with the aforesaid keys, wherefrom the police recovered two writings written by the deceased that the accused persons were responsible for her death vide exhibit 3 is the said suicide note(both writings are similar). The handwriting of the deceased was identified by PW3. Although defence suggested the witness that as the deceased was elder than her husband, having no issue from the marriage, she has to attend the old ailing mother-in-law, so out of frustration she committed suicide, but the said suggestion was denied by the witnesses. Further the handwriting of the suicide note though challenged by the defence, the brother of the deceased has identified her hand writing. In this context evidence of PW5 Anil Barman is relevant. He was present at the time of recovery of the dead body. He supported the fact that after the recovery of such suicide note from the almirah of the deceased, the handwriting in the suicide note was identified by PW3. He also signed the inquest report vide exhibit 2. One more 6 aspect that is stated by PW5 that he came to know from his wife about the torture meted out on deceased by her husband and in-laws demanding money, land etc. (10) On the other hand evidence of PW4 Bharati Devi, who is a neighbour of the informant; and PW6 Bhupen Sarma, the brother-in-law of deceased, disclosed in the evidence that the deceased at the time of her visit to the house of informant (whom they met) told them that all the accused persons tortured her a lot both mentally and physically demanding money, land etc. Deceased complained to them that all the accused particularly Jutika Devi and her husband Tapan Ranjan Goswami have been causing her much trouble pressing her to transfer a piece of land of her brother Laxmi Narayan(PW3) at Pathsala and a few days they came to know about the incident. Although from the cross-examination it emerged that the said accused Tapan Goswami and Jutika were residing at different places about 4-5 km from the house of the deceased, the allegation was against both of them who were hindering the marital life of the deceased by indulging in constant mental and physical torture on her, on the demand of dowry.
(11) Evidence of PW7 Gajendra Nath Roy, PW8 Gopal Sarma, PW9 Golap Sarma, PW10 Dhanjit Sarma and PW11 Pratibha Devi being neighbours appeared at the place of occurrence hearing the incident and present at time of the recovery of the dead body of the deceased. They have no knowledge about the occurrence. However, PW8 and 9 stated that they heard about quarrel between the deceased and her mother-in- law and they often found the deceased in a melancholy mood but they have never seen any quarrel between Hiten and the deceased. PW11 stated that deceased was mentally upset due to ill behavious of her mother-in-law.
(12) Evidence of IO is formal in nature. He stated about the receipt of FIR and all about the investigation. He visited the place of occurrence and prepared the sketch and found the dead body of the deceased Urvasi floating in the pond of the accused person which is situate in the same compound. He seized two letters vide exhibit 3 which were recovered from the Godrej almirah of the victim with the key that was found from the clothes of deadbody and on due completion of the investigation he submitted charge-sheet against accused persons under Section 304(B)/34 of the IPC.
(13) In the given case all the accused persons have been held guilty under Section 304(B) and 306 IPC and convicted accordingly. Further the Court has also 7 drawn the presumption under Section 113 A of the Evidence Act while awarding sentence U/S 306 IPC. In this context let us elucidate the legal provision in this regard. In order to establish an offence U/S 304 B three ingredients is to be established (a) that there is a demand of dowry and harassment by the accused;
(b) the deceased died and (c) the death is under unnatural circumstances. Once there is harassment for payment of dowry and an unnatural death occurred within seven years after marriage, the presumption of dowry death is inherent. Thus Section 304 B has following requirements-
(i) The woman should have died because of burns, bodily injury, poison or otherwise then under normal circumstances within seven years of marriage.
(ii) That it should be shown that soon before her death she was subjected to cruelty or harassment by her husband or relative of her husband or in connection with any demand of dowry;
The term "dowry" shall have same meaning as defined in Section 2 of the Dowry Prohibition Act.
When we examine whether or not the offences U/S 304 B, 306 IPC are made out we had to apply the standard of proof and weigh the evidence/ material keeping in mind the statutory mandate of Section 113 (B) and 113 (A) of the Indian Evidence Act. Section 304 B is a special provision, which is inserted by amendment of 1986 Act to deal with dowry death. Even if the woman committed suicide by hanging under the circumstances mentioned above, still the death comes within the scope of 304 B IPC, if it is shown that she was subjected to cruelty or harassment by her husband or by any relative or by husband in connection with any demand for dowry. The Section 304 B IPC has a proximate nexus with Section 113 B of the Evidence Act which reads as follows-
113 B- Presumption as to dowry death-- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment or in connection with any demand for dowry, the Court shall presume that such person has caused the dowry death.
8Explanation--For the purposes of this section dowry death shall have the same meaning as in Section 304 B IPC.
Section 304 B IPC and 498 A are not mutually exclusive. Although cruelty is common essential in both the provisions and that has to be proved but the explanation to Section 498A IPC has provide the meaning of Cruelty but in Section 304 B IPC there is no such explanation about the meaning of cruelty. Having regard to the common background to these offences the meaning of cruelty or harassment will be same in case of both the offences. It is to be noted that section 304 B (i) IPC in the later part mandates the drawing of presumption that the husband or relative of the husband of the victim girl have caused her death and this presumption on dowry death correspondence to the presumptions as to dowry death envisages in Section 113 B of the Evidence Act. Thus Section 304 B (i) IPC has two limbs, the first defines the dowry death and the second the legal consequences of the occurrence of dowry death. The 2nd limb of Section 304 B (i) mandates that the husband or such relative of her husband shall be deemed to be guilty of dowry death. In both the sections 304 B (1) the later part and section 113-B Evidence Act used the expression "shall be presumed" .
Shall be presumed in Section 4 of the Evidence Act means that whenever it is directed by this Court that the Court shall presume the fact, it shall regard such fact as proved, until and unless it is dispute, in respect of such legal presumption the Court is bound to raise the presumption when, in respect of factual presumption it is discretionary.
14. It is true that in criminal jurisprudence benefit of doubt is extendable to the accused but said benefit of doubt would arise in the context of the application of penal law and in the facts and circumstances of a case. The concept of benefit of doubt has an important role to play but within the confines of stringency of law. Since the cause of death to a married woman was to occur not in normal circumstances but a dowry death for which evidence is not easily available, as it is mostly confined to within the four corner of a husband's house, where the husband and in law reside. In such context, amendment has been brought regarding concept of demand of dowry death by husband or relatives. This deeming clause has a role to play and cannot be lightly ignored to shield an accused, otherwise very purpose of amendment will be frustrated. However the prosecution has to prove 9 the ultimate essential ingredients of the offence beyond all reasonable doubt after raising the initial presumption of dowry death.
15. The expression "soon before her death used in both the sections is pregnant with the idea of proximity test. In Kans Raj v State of Punjab and Ors (2005) 5 SCC 207, it has been held that in cases of dowry death, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instances but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand of dowry is shown to have persisted, it shall be deemed to be "soon before death".
16. Thus in the legal parlance perceptible nexus between her death and the dowry related harassment or cruelty inflicted upon her. If the interval elapse between the infliction of such harassment or cruelty and her death is wide, then the court would be in a position to say that in all probability the death would not have been the immediate cause of death. It is the Court to decide the facts and circumstances of each case whether said interval in a particular case was sufficient to keep it away from the concept " soon before her death".
17. The presumption to dowry death under 113 B was inserted by the Dowry Prohibition Amendment Act, 1986. This section carries a presumption of law of guilt of committing the offence of dowry death by any person who has been proved to have subjected the woman concern soon before the woman's death to cruelty or harassment as defined in section 304 B IPC. The presumption U/S 113 B is a presumption of law. On proof of the essentials mentioned therein it became obligatory on the part of the Court to raise the presumption that the accused caused the dowry death. The provision was introduced with view to combating the increasing menace of the dowry death where direct evidence is not always possible.
18. In the background of the legal position, we may now analyse the evidence on record. To decide the controversy in question i.e. whether the deceased was subjected to cruelty or harassment, let us reproduce the suicide note in verbatism English translation of the note read as follows-
" Inspite of my unwillingness I have to die today. I thought I would be able to make my father and elder brother happy. But I failed to do so, because 10 except daughter and daughter's husband this family can not like other person. This family members including daughter and daughter's husband can do acting. These persons very well know how to grab other's property. They always think how to cheat others. They are very greedy for property and same thing happens to her. I thought that I would be able to correct them. But I fail today since morning Juthika is rebuking me. I cannot bear these. They are also greedy for the land belonging to my elder brother situated at Pathsala. It is my expect that after my death my properties are required to be distributed among the poor. My husband cannot thought about me. It is few time of my living.
There are so many things to disclose, but I could not disclosed...."
19. The aforesaid note itself speaks about the agonising pain and suffering of the deceased woman compelling her to extreme step to finish her life though she wanted to live. It can be perceivable that due to her extreme mental sufferance she even could not express all detail of her painful life. But, however it can be construed from the said letter that she has blamed her husband and brother in law and sister in law who has made her life miserable which speaks about extreme mental harassment dealt with upon her. The sentences used in the note indicates that she is unable to fulfil the demand of property of the appellants and on the day of occurrence she was humiliating by abusive language by the appellant/sister in law which is un-tolerable on her part. The aforesaid letter indicates that the relationship between the appellant and deceased was deficient, not at all cordial, even though deceased has just completed one year of marriage. She was tactfully handled with constant demand for landed property. Thus, a bare reading of suicide note itself would justify the conviction of the appellant U/S 304 B IPC read with Section 113 B of the Evidence Act. An woman entered into a marriage with high expectation of love and respect in her matrimonial home and lack of which always turns the life of a woman from heaven to hell.
20. The oral evidence as has been mentioned above is supportive of fact that the victim was subjected to harassment soon after the marriage. It has been stated by the PW 2 and PW 3 sister and brother of the deceased as well as brother in law/PW 6 couple with the evidence of PW 4 and PW 5 that since after one month of the marriage while the deceased came to her parental house she 11 reported about the harassment made by the appellant on the demand of money and landed property and it was a constant demand but due to the inability to fulfil such demand she was constantly harassed by her in laws/appellants. PW 3 used to mediate the matter with the appellant that it is not possible to fulfil the demand and restore their conjugal life peacefully. The PW 4 was a neighbour of PW 2, who happens to came to the house of the PW 2 whenever deceased came to their house and then she was apprised about such demand of dowry by the appellant. PW 5 is the husband of PW 4 who was also made known about the dowry demand and harassment by the appellant. Totality of the evidence goes to show that there was a constant dowry demand to the deceased and till prior to few days of the occurrence. The word envisages in Section 304 B is cruelty or harassment and in that sense even without proving all physical cruelty within the meaning of 498A IPC the constant "mental harassment" can amount an offence within the meaning of the section.
21. In the present case, the defence failed to rebut the legal presumption postulates under the aforementioned sections of law nor in cross examination or by adducing any proper evidence. Some evidence here and there that the witnesses did not see quarrel between the parties cannot be a ground to rebut the statutory presumption. The vital facts remains undisputed that deceased died within seven years of marriage by committing suicide in unnatural circumstances by drowning in a pond nearby the house of the accused appellant and PM report says that it is a case of suicide. Evidence on record depicted a story that deceased was harassed during her whole marital life (within one year) on the demand of money and land. The dead body was recovered from a pond nearby the house of accused appellant and a bunch of keys was recovered from the wearing cloth of the deceased and with the said keys her wordrop was opened and the suicide note was recovered. The handwriting of deceased is proved by her brother and sister which is not at all disputed, and in the said suicide note she has blamed all the accused appellant for causing her death. The defence totally failed to rebut the factual evidence on record and also to rebut the legal presumption under the law. The prosecution has been able to prove the ingredients of offence U/S 304 B IPC beyond all reasonable doubt.
1222. Now, Section 107 defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in the Act as an offence. A person, abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to compote abetment as a crime. The word "instigate" literally means to provoke, incite, urge on or bring about by persuasion to do anything. The abetment may be by instigation, conspiracy or intentional aid, ask provided in the three clauses of section 107.
The Section 306 IPC deals with abetment of suicide. The said provision reads as follows:
"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 extent to ten years, and shall also be liable to fine."
As has been held in Subham Raj Sarma (supra), abetment involves a metal process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that 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 thing it required before a person can be said to be abetting the commission of offence under Section 306 of IPC.
In State of West Bengal -vs Orital Jaiswal (AIR 1994 SC 1418) Hon'ble Supreme Court has observed that the Courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out o the victim had in fact induced her to end her life by committing suicide. If its transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide. The conscience of the Court should be satisfied for basing a finding that the accused charged, of abeting the offence of suicide should be found guilty.
1323. In the given case the evidence on record does not indicate that the deceased was instigated or provoked for doing any illegal omission or commission on her part to attract the offence abetment as defined above hence the charge U/S 306 IPC would fail. Accordingly the conviction under said section of law is hereby set aside and quashed.
A very relevant observation of the Hon'ble Supreme Court in Surinder Singh
-vs- State of Haryana (2014) 4 SCC 129 is quoted below-
"26.....
We are of the opinion that the penal statute even if it has to be strictly construed must be so construed as not to defeat its purport. Harassment of a married woman in an Indian household is a peculiar phenomenon. In most of cases it is seen that the husband or members of his family are never satisfied with what they get as dowry. The wife's family is expected to keep fulfilling this insatiable demand in some form or others for some period of time after marriage. Such demand are also fulfilled by parents or wife for fear of their daughter being imputed. The Courts of law cannot loose sight of these realities. The presumption under Section 113 B of the Evidence Act 1872 and the presumption under Section 304 B IPC had a purpose. These are beneficial provisions aim at giving relief to a woman subjected to cruelty routinely in the Indian household. The meaning to be applied to its word of these provisions has to be accord with the legislative intent. Even while construing these provisions strictly care have to be taken to see that their object has not to be frustrated."
24. The case in hand depict a sad story of a newly married woman who had entered into the marriage hardly one year back and since after the marriage she was constantly harassed on the demand of money and land, inside the household of her husband which was not visible from the outside. Her suicide note indicates that she was behaved in a tactful manner by the in laws including her husband and her husband failed to protect her from such harassment from other in laws which was the main cause of agony to a newly married woman. She was deprived of due care and protection and warmth love and affection from her husband making her life miserable. She was found depressed on many occasion by the 14 witnesses as stated by them. In view of matters on record defence plea that the deceased has taken her life as she was mentally disturbed and depressed because she could not became mother and was much elder to her husband, is nothing but a false pretext and afterthought. Such a reason has not been assigned in the suicide note by the deceased but she has specially refer to the conduct of the appellants about their greediness for the landed property of his brother which is suffice to support the demand of dowry in cash and kind.
25. Statement of all the witnesses found convincing and inspiring and credibility remain unshaked and it can be held that the prosecution has been able to prove charge U/S 304 B IPC and it calls for no interference.
26. Consequently, the conviction U/S 304 B IPC as against all the accused appellants he hereby upheld. The offence U/S 304 B is punishable for a term which shall not less than 7 years but may extend to imprisonment for life. The trial Court has awarded the minimum sentence under the said section of law which is maintained. The appellants who are behind the bars accordingly required to undergo the remaining sentence.
Both the appeals are disposed of accordingly.
Before parting with the record, we appreciate the valuable assistance rendered by learned Amicus Curiae, Mr. R. De while conducting the appeal. An amount of Rs. 7500/- be paid to him as his remuneration by the Legal Services Authority of Gauahati High Court, Guwahati.
Return the LCRs.
JUDGE Nandi 15