Calcutta High Court (Appellete Side)
Samiranbasak vs The State Of West Bengal on 2 July, 2019
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
APPELLATE SIDE
Before:-
THE HON'BLE JUSTICE RAJASEKHAR MANTHA
C.R.A. 251 of 2008
SamiranBasak
VERSUS
THE STATE OF WEST BENGAL
For the Appellant : Mr. SoumickPramanick, Adv.
For the State : Mr. Bidyut Kr. Roy, Adv.
Ms. Rita Datta, Adv.
Hearing concluded on : 25.06.2019
Judgment on : 02.07.2019
RajasekharMantha, J.:-
1.The instant appeal is directed against the Judgment dated 24th March, 2008 and order of conviction dated 25th March, 2008 passed by the Additional District & Sessions Judge, Ranaghat, Nadia, in Sessions Trial No. 3 (III) of 2005 arising out of Sessions Case No. 54 (9) of 2004. 2 The appellants have been convicted under Section 498A and 306 of the IPC. The appellant No. 1 SamiranBasak was convicted to suffer rigorous imprisonment for 2 years under Section 498A of the IPC and pay a fine in default to suffer simple imprisonment for 2 months. The said appellant No. 1 has also been convicted to suffer 4 years rigorous imprisonment under Section 306 of the IPC and to pay fine of Rs.2000/- in default suffer simple imprisonment for 2 months. The appellant No. 2 was sentenced to suffer rigorous imprisonment for 1 year under Section 498A of the IPC and to pay a fine of Rs.1000/- in default to suffer simple imprisonment for 2 months. The appellant No. 2 was also convicted to suffer rigorous imprisonment for 3 years fo under Section 306 of the IPC and to pay fine of Rs.2000/- in default to suffer simple imprisonment for 2 months.
2. The prosecution case in brief is that the victim Archana Basak was married to the appellant No. 1 SamiranBasak about 8 years prior to her death. The appellant No. 1 was paid dowry by the father of the victim,Sahadeb Basak (PW1) comprisngin, Rs.20,000/- in cash, 3 grams worth of ornaments, a cot, dressing table, almirah etc. The amount is stated to have been paid voluntarily. The couplewas childless. There was marital discord and a demand for more dowry and money from the appellants. The victim is stated to have been tortured physically and mentally for inability on the part of her parents to pay the dowry demanded. A meeting of the elders of the village, locally known as 'Salish' was stated to have been held 2-3 3 times where the father of the victim is stated to have told that he was unable to meet the demand for dowry. On the 5th September, 2002 at about 7.00 pm the victim is stated to have poured kerosene on herself and burnt herself to death.
3. Immediately after being informed of the incident by three persons, the parents of the victim and their son rushed to the matrimonial house of the victim and found her lying in the courtyard, burnt. They took her to theRanaghat Sub-divisional Hospital where she was declared dead.
4. The inquest was conducted by ASI Sankar Mukherjee (PW-8) and SastiCharan Ghosh, Executive Magistrate, who found the entire body burnt except forparts of the scalp and the feet. The inquest was attended by ArabindaPramanik (PW 9), SahadebBasak (PW1) and two other persons. The Executive Magistrate who conducted the inquestin the said hospital morgue, submitted a report under Section 176 of the Cr.P.C. He recorded the statements of the witnesses that, it was a case of bride burning.The suspicious circumstance recorded was that the family members of the deceased were not present at the time of inquest. A Post Mortemwas subsequently conducted by Dr P Banerjee (PW11). The column for cause of death was left with the following remark 'Opinion deferred until receipt of the FSL report'. The viscera was sent for Forensic Analysis to Kolkata. The FSL report was not received.
5. Charges were framed against the accused under Section 498A and 306 of the Indian Penal Code against the Appellant No.1 Husband and 4 Appellant No.2 Father-in-Law.The prosecution examined as many as 12 witnesses.
PW 1- SahadebBasak, father of the deceased.
PW 2- Amiya Basak, maternal uncle of PW1 and co-villager (declared hostile).
PW 3- PremanandaBasak, neighbour (declared hostile). PW 4- Jharna Rani Basak, mother of the victim.
PW 5- Paresh Ch. Bhowmick, priest who performed the marriage ceremony between appellant No.1 and the victim. PW 6- Suresh Sarkar, Barber who participated in the marriage ceremony of the victim and the appellant No. 1. PW 7- Krishna Roy, neighbour well acquainted with the families of the Victim and the Appellants (declared hostile) PW 8- ASI Sankar Mukherjee.
PW-9 ArabindaPramanik, resident of the village, well acquainted with the appellants and the family of the victim and scribe of the complaint (declared hostile). PW 10- SI JyotirmoyBasakInvestigatin Officer PW 11- Dr. P. Banerjee, Medical Officer (ENT Surgeon) who conducted post-mortem submitted report.
PW 12- S.D.O. ShastiCharan Ghosh who also conducted the inquest.
Evidence of PW 1
6. SahadebBasak, the father of the deceased and de facto complainant stated that his daughter was married 7-8 years ago. He identified the appellants and deposed that relations between his daughter and the appellant No. 1 were not good. He stated that the appellant assaulted his daughter for failure to bring money demanded. His daughter used to come home alone regularly and inform himof the demand for more money and torture for failure on his part to pay money to appellants. He further stated that his wife was also informed of the tortureand demand of money,by the victim herself.
7. In a 'Salish' held in the village regarding such demand, Sahadeb informed the village elders that he was unable to pay money to the 5 appellants and further torture is stated to have been inflicted on the victim thereafter. Krishna Roy (PW-7), neighbour and Amiya Basak (PW2) maternal uncle of Sahadeb (PW1) are stated to have been present in the Salish. He deposed that the Appellant No.1 used to tell the victim "can't you consume poison and die!, can't you die of burning!, can't you tie a rope and hang yourself!". Salish is stated to have been held about 45 days prior to the death of the victim.
8. He could not recollect the exact date of death. He was informed of the victim lying in a burnt condition in the courtyard of her matrimonial house at or about 6.30-7.00 pm by local residents. He rushed to the house of the appellant alongwith his wife and son but could not find the appellants thereat. He found his daughter Archana lying on the courtyard in a burnt condition and took her to Ranaghat hospital where she expired.
9. On the next day of the incident he said that he went to the Santipur Police Station alongwith PW 9 ArabindaPramanik and lodged the complaint. The complaint was dictated to PW9 by himand signed by him. The complaint was identified by him. He thereafter went to Ranaghat hospital when the inquest was performed in the presence of his elder brother MahadebBasak and PW 9. He signed on the original inquest report.Subsequently, on 6th of September, 2002 when the Magistrate performed inquest, he told the Magistrate that his daughter committed suicide for torture inflicted on her and for failure to meet the demand of money.
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10. In cross-examination, he said that he has no enmity in the locality.All household work, nursing of the appellant No. 2, at the matrimonial house was done by his daughter. There was no other female member in the matrimonial house. The appellant and the victim visited the paternal house on Jamaisasti (festive occasion to honour the son-in- law) and "Dwiragaman". Such visits were normal and there was no acrimony during that time. He could not recollect the date, month or year when the victim told him about the torture inflicted upon her. He admitted that he did not inform the police or the local panchayat about the torture on his daughter except one neighbour namely NarottamBasak. His statement was recorded at Ranaghat Hospital. He admitted that the amount demanded and his inability to pay the same was not recorded in the complaint.
11. He stated that his statement was recorded by the police during investigation and that PW 2, 3, 7 and 9 were examined by the police in course of the investigation.
Evidence of PW 2
12. Amiya Basak is the uncle of PW 1. He deposed that he had not heard of any unhappy incident in the marriage of the victim and the appellant No. 1. He was declared "Hostile". He denied having said that there was any discord in the marriage of the victim and the appellant No.1 or that the appellants burnt the victim. He admitted that he used to visit the house of the appellants. He was not questioned as to 7 what happened at the Salish. No Statement under 161 was confronted to the witness.
Evidence of PW 3
13. PW 3 is PremanandaBasak, a neighbour of the appellant. Hewas also declared 'Hostile'. He did not "see"any unhappy incident in the marital life of the victim. He accompanied PW 1 and other local persons and took the victim to a hospital in a Maruti car. He denied having been interrogated by the police and also denied having said anything against the appellants to the police about any discord in the marriage between the victim and the appellant. He was not questioned as to what transpired at the salish.No Statement under 161 was confronted to the witness.
Evidence of PW 4
14. PW 4 is Jharna Rani Basak, mother of the victim and wife of PW 1. She submitted that after marriage the appellants tortured Archana and demanded Rs.15,000/- from her. She said that her daughter informed her that the appellants said, "if you do not bring money you may have to die consuming poison". She also stated that the victim was assaulted since she could not send money to the appellants. Two 'Salishs" each were held at the house of the appellants and her house. The victim was stated to have been tortured even after the 'Salishis'. She stated that the victim told her that unless she and her husband PW1, give money to the appellants as per the demand, her daughter will have to commit suicide.
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15. She deposed that the incident occurred 8 years after marriage. She confirmed having found the victim as deposed by the PW 1 and taking her to the hospital along with her husband and son and other persons.She said that she and her husband and son were informed of the incident by PintuBasak, Suren Basak and SukumarBasak. In cross-examination, she admitted that the appellant No.1 came to the house of her in Dwiragaman and not on Jamaisasti. She admitted that the victim was childless and that she often went to visit her daughter in the matrimonial house. She informed the incident of torture and demand for money was informed only to a panchayat member PW 9 but could not recollect the date. She clearly admitted that the victim Archana, and herself were extremely unhappy and depressed that they were childless. She said that she narrated the incident to the police during investigation while she was mentally upset.
Evidence of PW 5
16. PW 5 is the priest who performed the marriage ceremony of the victim and the appellant No.1.
Evidence of PW 6
17. PW 6 is the barber who participated in the marriage ceremony between the victim and the appellant.
Evidence of PW 7 9
18. PW 7 is Krishna Roy, neighbour of PW 1SahadebBasak, anda resident of the locality. She was declared 'Hostile'. She claims to know SahadebBasak, as well as the victim Archana Basak. She came to know of the death of Archana on the night of the incident. She said that Archana and her husband had visited her parent's house regularly. She deniedhaving been interrogated by the police. She denied having told the police that Archana suffered in her maternal house after marriage. Krishna Roy was not interrogated about what transpired, if at all at the Salishis. No statement under Section 161 of Cr.P.C. was confronted to the wtiness.
Evidence of PW 8
19. PW 8 wasSankar Kumar Mukherjee ASI of Police who performed inquest on the dead body of the victim. He deposed that at the time of inquest,ArbindPramanik, PW 9 MahadebBasak, NityanandaSikdar and SabadebBasakPW1 were present. He identified a carbon copy of the inquest report that was exhibited.
Evidence of PW 9
20. PW 9 wasArbindPramanik. He was declared Hostile. He was a member of Panchayat Samity of the locality. He knew the victim. He deposed that he was present when PWI lodged the complaint and had written the same as per the dictation and instructions of SahadebBasak PW 1. He stated that he was present during inquest and identified his signature as witness on the inquest report. He denied any knowledge of anymarital discord between the victim and 10 her husband and her father-in-law. He also denied that the police interrogated him. He denied having said that the victim died after burning herself and he further denied that there was any unhappy incident between victim and the accused persons. He was not questioned about the salish. No statement under Section 161 of Cr.P.C. was confronted to him.
Evidence of PW 10
21. PW 10 is Sub InspectorJyotirmoyBasak, the Investigating Officer. He did not find any sketch map with index of place, in the case diary. He claims to have examined and interrogated PW 2 whereas PW 2 had denied any interrogation by the police. He deposed that PW 2 told him in interrogation that the appellants used to abuse the victim for not being able to bring money from her father's house.He also deposed that PW 9 in course of interrogation stated that the victim was tortured after her marriage and that the accused demanded Rs.15,000/- as dowry. Strangely, PW 9 in his examination denied having said anything of that nature. He also stated that PW 3 PremanandaBasak told him during investigation that the appellants demanded Rs.15,000/- as dowry from the father of the victim and tortured her since he could not arrange the said sum of money. PW 3 denied having said anything in that regard to the police, in his evidence. He also deposed that Krishna Roy PW 7 told him in interrogation that Archana was tortured for not arranging Rs.15,000/- as dowry and committed suicide by setting herself for fire. The said 11 Krishna Roy deniedhaving said anything of that nature to the police, in her evidence. He admits that hedid not go toRanaghat Sub- Divisional Hospital. He also admits that he did not examine any Panchayat members.
Evidence of PW 11
22. PW 11 isDr. P Banerjee, a Medical Officer (ENT Surgeon). He admitted that he performed the post mortem on the victim and found second degree burns all over the body except a small portion of scalp and the feet and sent the viscera for chemical analysis to the laboratory at Kolkata. A carbon copy of the PM report was shown to him and wasexhibited,he denied having handed over the carbon copy of the post mortem report to the police. He could not say where the original post mortem report was. He also could not say that any FSL report was received by him.
Evidence of PW 12
23. PW 12 isSasthiCharan Ghosh, S.D.O., Barasat. He deposed that he performed the inquest on the dead body of Archana Basak.The body was identified by the father of the deceased.The Inquest was done in the presence of the father PW 1 and PW 9. He deposed that he has recorded that it is a case of bride burning on account of demand of dowry as per the versions of PW1.
24. The Appellants were examined under Section 313 of the Cr.P.C. The judgment was delivered on 24th March, 2008 convicting the appellants and they were subsequently sentenced.
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25. This court has carefully gone through the evidence on record and finds serious discrepancies in the prosecution's case. The only evidence to support the prosecution case is that of PW 1 the father of the victim SahadebBasak and PW 4,Jharna Rani Basak mother of the victim. Admittedly the persons who informed PW1 and PW4of the incident i.e., PintuBasak, SukumarBasak and Suren Basakwere neither cited as witnesses nor deposed in the trial. PW4 deposed that Archana was depressed because she was childless. The victim and her husband visited the paternal house on Dwiragaman. The post mortem report is inconclusive. The FSL report was never seen the light of the day.
26. PW 2, AmiyaBasak the uncle of PW 1, PW 3 PremanandaBasak neighbour, PW 7 Krishna Roy and PW 9 ArbindPramanikwho were stated to be present in the Salish and on the basis of whose statements in interrogation, the Investigating Officer submitted charge-sheet, have all denied having stated anything against the appellants to the police. No Statement under 161 was either recorded or confronted to the said witnesses. They were not questioned as regards their presence in the Salish. Each of them were declared hostile by the prosecution.The only evidence available to prove the prosecution case was that of PW 1 and PW 4. The evidence of the PW 1 and PW 4 is not conclusive to establish torture, cruelty or abetment to commit suicide against the appellants.
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27. In this regard it is useful to refer the the decision of the Honble Supreme Court in the case of Sharad BirdhichandSarda Vs State of Maharashtra reported in (1984)4 SCC 116. At Paragraph 48 it was held as follows :-
"48. Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the background of which the oral statements are to be considered. All persons to whom the oral statements are said to have been made by Manju when she visited Beed for the last time, are close relatives and friends of the deceased. In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that this is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the Court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it."
28. The Supreme Court in the case of Mahavir Singh vs. State of M.P. reported in (2016) 10 SCC 220has held as under:-
"18. The High Court has attached a lot of weight to the evidence of the said MadhoSingh (PW 9) as he is an independent witness. On perusal of the record, it appears that the said person already had deposed for the victim family on a number of previous occasions, that too against the same accused. This being the fact, it is important to analyse the jurisprudence on interested witness. It is a settled principle that the evidence of interested witness needs to be scrutinised with utmost care. It can only be relied upon if the evidence has a ring of truth to it, is cogent, credible and trustworthy. Here we may refer to chance witness also. It is to be seen that although the evidence of a chance witness is acceptable in India, yet the chance witness has to reasonably explain the presence at that particular point more so when his deposition is being assailed as being tainted. A contradicted testimony of an interested witness cannot be usually treated asconclusive."
29. The Supreme Court in the case of Harbeer Singh vs. Sheeshpalreported in (2016) 16 SCC 418 hasheld as under:
"18. Further, the High Court has also concluded that these witnesses were interested witnesses and their testimony was not corroborated by 14 independent witnesses. Weare fully in agreement with the reasons recorded by the High Court in coming to this conclusion.
19. In Darya Singh v. State of Punjab, this Court was of the opinion that a related or interested witness may not be hostile to the assailant, but if he is, then his evidencemust be examined very carefully and all the infirmities must be taken into account.This is what this Court said: (AIR p. 331, para 6) "6. There can be no doubt that in amurder case when evidence is given by near relatives of the victim and the murder isalleged to have been committed by the enemy of the family, criminal courts mustexamine the evidence of the interested witnesses, like the relatives of the victim, verycarefully. ... But where the witness is a close relation of the victim and is shown to share the victim's hostility to his assailant, that naturally makes it necessary for thecriminal courts to examine the evidence given by such witness very carefully andscrutinise all the infirmities in that evidence before deciding to act upon it. In dealingwith such evidence, courts naturally begin with the enquiry as to whether the saidwitnesses were chance witnesses or whether they were really present on the scene ofthe offence. ... If the criminal court is satisfied that the witness who is related to thevictim was not a chance witness, then his evidence has to be examined from the pointof view of probabilities and the account given by him as to the assault has to becarefully scrutinised."
20. However, we do not wish to emphasise that the corroboration by independent witnesses is an indispensable rule in cases where the prosecution is primarily basedon the evidence of seemingly interested witnesses. It is well settled that it is thequality of the evidence and not the quantity of the evidence which is required to bejudged by the court to place credence on the statement.
21. Further, in Raghubir Singh v. State of U.P., it has been held that:
(SCC p. 84, para10) "10. ... the prosecution is not bound to produce all the witnesses said to have seenthe occurrence. Material witnesses considered necessary by the prosecution forunfolding the prosecution story alone need to be produced without unnecessary andredundant multiplication of witnesses. ... In this connection general reluctance of anaverage villager to appear as a witness and get himself involved in cases of rivalvillage factions when spirits on both sides are running high has to be borne in mind."
30.In so far as the allegation of torture and cruelty, in the first place there is clear evidence that the death took place 8 years after the marriage of the victim hence no presumtion of cruelty can be drawn against the accused u/s 113 of the evidence Act. Reference in this regard to the case ofHeera Lal and Anr Vs State of Rajasthan reported in (2018) 11 SCC Pg 323. At paragraph 7 it was stated as follows :-
"7. This Court in an illuminating judgment in Ramesh Kumar v. State of Chhattisgarh [Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618 : 2002 SCC (Cri) 1088] has stated the law as follows: (SCC pp. 626-27, para 12) 15 "12. This provision was introduced by the Criminal Law (Second) Amendment Act, 1983 with effect from 26-12-1983 to meet a social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide by the husband or in-laws and incriminating evidence was usually available within the four corners of the matrimonial home and hence was not available to anyone outside the occupants of the house. However, still it cannot be lost sight of that the presumption is intended to operate against the accused in the field of criminal law. Before the presumption may be raised, the foundation thereof must exist. A bare reading of Section 113-A shows that to attract applicability of Section 113-A, 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. 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 abovesaid 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 the other circumstances of the case". A consideration of all the 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 113-A 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 irrebuttable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase "may presume" used in Section 113- A is defined in Section 4 of the Evidence Act, which says -- 'Whenever it is provided by this Act that the court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.' "
31. The evidence of the PW1 and PW4 must be viewed carefully and cautiously. None of the witnesses have supported any allegation of torture of the victim. Apart from alleging torture there is no evidence to suggest the manner and particulars of such torture. A mere allegation of torture is not enough to establish cruelty within the 16 meaning of Section 498A of the There is no clear evidence that the victim sufferredcreulty or torture or harrassmentimmdiately prior to the death. The mens rea of the Appellants has not been clearly established.
32. The nature of the cruelty has not been established i.e. whetherit was physical or mental. If physical then the nature of such cruelty has not come to record. No external injury apart burns has emerged from the post mortem report. The cause of death was not mentioned in the post mortem report. The original post mortem report was not exhibited. The carbon copy of the post mortem report that was in fact exhibited was denied having been given by doctor to the police authorities. The viscera was sent for Forensic Examination. Such FSL report was not seen by the doctor. There is in fact no FSL report.
33. In this regard it would be useful to refer to some judgments of the Hon'ble Supreme Court of India. In Rajesh Sharma Vs State of UP reported in (2018) 10 SCC 472 at paragraph 14 it was stated as follows:-
"14. Section 498-A was inserted in the statute with the laudable object of punishing cruelty at the hands of husband or his relatives against a wife particularly when such cruelty had potential to result in suicide or murder of a woman as mentioned in the Statement of Objects and Reasons of Act 46 of 1983. The expression "cruelty" in Section 498-A covers conduct which may drive the women to commit suicide or cause grave injury (mental or physical) or danger to life or harassment with a view to coerce her to meet unlawful demand................"17
34. The FSL report has never seen in the light of the day. The burns indicated do not prove the allegation of cruelty. Strangely the statement of the PW4 that the appellants demanded Rs.15,000/- as dowry from the victim and her father does not even find place in the complaint.Reference in this regard is made to the decision of the Supreme Court in the case of Ram Kumar Pandey Vs State of M.P.reported in (1975)3 SCC Pg 817. At paragraphs 8,12 and18 it was held as follows :-
"8. The abovementioned first information report was lodged at Police Station Ganj on March 23, 1970 at 9.15 p.m. The time of the incident is stated to be 5 p.m. The only person mentioned as an eye-witness to the murder of Harbinder Singh is Joginder Singh. The two daughters Taranjit Kaur, PW 2, and Amarjit Kaur, PW 6, are mentioned in the FIR only as persons who saw the wrapping of the chadar on the wound of Harbinder Singh. What is most significant is that it is nowhere mentioned in the FIR that the appellant had stabbed Harbinder Singh at all. It seems inconceivable that by 9'15 p.m. it would not be known to Uttam Singh, the father of Harbinder Singh, that the appellant had inflicted one of the two stab wounds on the body of Harbinder Singh.
12. Again, we find that Taranjit Kaur, PW 2, and Amarjit Kaur, PW 6, daughters of Uttam Singh, have figured as eyewitnesses of the whole occurrence including the stabbing of Harbinder Singh by the appellant. As already indicated, they are not mentioned in the FIR as eyewitnesses of the murder. This is also very significant in the present case. They have been mentioned only as witnesses of wrapping a chadaron the wound of Harbinder Singh who was then said to be lying in the lane after the occurrence.
18. Lastly, the alleged dying declaration is also not mentioned in the FIR On the other hand, the FIR, mentions Joginder Singh who tried to prove the dying declaration only, as an eyewitness."
35. The conviction by the High Court in the Ramkumar Pandey case (supra) was reversed for such infirmity.
36. The evidence of PW 1 and 4 do not prove beyond reasonable doubt that the victim girl was subjected to such creulty that immediately drove her to kill herself. Such cruelty must exist immediately prior to and proxmiate to the death of the victim. There is no clear evidence in 18 this regard. Refrence in this regard is made to the case of Hira Lal Vs State (NCT of Delhi) reported in (2003) 8 SCC Pg 80. At paragraphs 8 and 9 it was laid down as follows :-
"8. Section 304-B IPC which deals with dowry death, reads as follows:
"304-B. Dowry death.--(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called 'dowry death', and such husband or relative shall be deemed to have caused her death.
Explanation.--For the purpose of this sub-section, 'dowry' shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."
The provision has application when death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relatives of her husband for, or in connection with any demand for dowry. In order to attract application of Section 304-B IPC, the essential ingredients are as follows:
(i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.
(ii) Such a death should have occurred within seven years of her marriage.
(iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband.
(iv) Such cruelty or harassment should be for or in connection with demand of dowry.19
(v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death.
Section 113-B of the Evidence Act is also relevant for the case at hand. Both Section 304-B IPC and Section 113-B of the Evidence Act were inserted as noted earlier by Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113-B 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 had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation.--For the purposes of this section, 'dowry death' shall have the same meaning as in Section 304-B of the Indian Penal Code (45 of 1860)."
The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21st Report dated 10-8- 1988 on "Dowry Deaths and Law Reform". Keeping in view the impediment in the pre-existing law in securing evidence to prove dowry- related deaths, the legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background that presumptive Section 113-B in the Evidence Act has been inserted. As per the definition of "dowry death" in Section 304-B IPC and the wording in the presumptive Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the woman concerned must have been "soon before her death" subjected to cruelty or harassment "for or in connection with the demand of dowry". Presumption under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials:
(1) The question before the court must be whether the accused has committed the dowry death of the woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B IPC.) (2) The woman was subjected to cruelty or harassment by her husband or his relatives.
(3) Such cruelty or harassment was for or in connection with any demand for dowry.
(4) Such cruelty or harassment was soon before her death.
9. A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of "death occurring otherwise than in normal circumstances". The expression "soon before" is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in 20 that case presumption operates. Evidence in that regard has to be led by the prosecution. "Soon before" is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression "soon before her death" used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression "soon before" is not defined. A reference to the expression "soon before" used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a court may presume that a man who is in the possession of goods "soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for their possession". The determination of the period which can come within the term "soon before" is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression "soon before" would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence."
37. Since there is no evidence to suggest any immediate provocation available on record the prosecution have not been able to establish a clear connection between the alleged Cruelty and the death of the victim.
38. Furthur each of the neighboursfour of whom examined have denied knowledge of any marital discord between the victim and the Accused No.1. On the contrary it is abundantly clear that the victim was depressed for being unable to beget a child. The need for corroboration of the existance of cruelty even from the neighbours has been discussed by the Supreme Court in the case of JagdishrajKhatta Vs State of Himachal Pradesh reported in 2019 SCC Online SC 611. At Paragraph 8 it was stated as follows :-
"8. With respect to the former, we are unable to agree with the reasoning of the High Court in relying on the testimonies of the 21 relatives of the deceased. As highlighted by the Trial Court, not only were the allegations in the FIR extremely general in nature, but also the same were never raised by the family of the deceased when they were present at the time of preparation of the inquest report or to the investigating officer. In fact, the allegation of cruelty meted out by the appellant against the deceased appears for the first time at the time of filing the FIR, after a delay of nearly one and a half days. Further, the prosecution did not even examine any neighbor of the appellant and the deceased to substantiate the allegation that the appellant ill- treated the deceased. In fact, and as the High Court also recorded, it appears from the evidence on record that the appellant treated the deceased with love and affection and provided for all her needs. In these circumstances, a reliance on the general oral testimonies of the prosecution witnesses, without any supporting evidence, would be misplaced. Further, as the High Court itself indicated somewhat contradictorily, reliance on the instances testified to by the witnesses would not be appropriate as the said incidents had taken place much before the deceased's death and could not be treated as conduct which drove the deceased to commit suicide."
39. In Tarun v. State of W.B., (2001) 10 SCC 754 at page 755 it was held as follows : -
"4. To appreciate this contention, we have ourselves scrutinised the evidence of PWs 2, 4 and 5. The maidservant (PW 4), who deposed in her evidence-in-chief about the fact that the accused used to assault the deceased almost daily on the instigation of his sister, but, in the cross-examination, it has been elicited that she has not stated so in her statement to the police recorded under Section 161 CrPC. Such material omission would discredit her version in court. If her evidence is taken out from the purview of consideration, then the evidence of PWs 2 and 5 cannot be held to be of such nature which would establish the cruelty on the part of the husband to bring home the offence under Section 498-A IPC. In our view, therefore, the High Court was in error in upholding the conviction under Section 498-A IPC."
40. Coming to the question of abetment of suicide under Section 306 of the Indian Penal Code, it is necessary and vital that the abetement must occur by way of words or some overt action. Such actions must be immediately prior to the actual act of suicide. It must also be 22 shown that it is a directand immediate consequence of such words or actions that the victim in fact was driven to end her life.
41. In Gangula Mohan Reddy VS State of Andhra Pradesh reported in ( 2010) 1 SCC page 750, the Honble Supreme Court held "13. In State of W.B. v. Orilal Jaiswal [(1994) 1 SCC 73 : 1994 SCC (Cri) 107] this Court has cautioned that the court 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 to the victim had in fact induced her to end the life by committing suicide. If it appears 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 not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.
14. The Court in Ramesh Kumar case [(2001) 9 SCC 618 : 2002 SCC (Cri) 1088] came to the conclusion that there is no evidence and material available on record wherefrom an inference of the appellant-accused having abetted commission of suicide by Seema may necessarily be drawn.
15. In the instant case, the deceased was undoubtedly hypersensitive to ordinary petulance, discord and differences which happen in our day-to- day life. Human sensitivity of each individual differs from the other. Different people behave differently in the same situation.
16. This Court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) [(2009) 16 SCC 605 : (2009) 11 Scale 24] had an occasion to deal with this aspect of abetment. The Court dealt with the dictionary meaning of the words "instigation" and "goading". The Court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the other. Each person has his own idea of self-esteem and self-respect. Therefore, it is impossible to lay down any straitjacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.
17. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he committed suicide."
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42. In the case at hand there is evidence on record in the instant case that the victim was depressed since she was childless. There was nobody else found or proven to have been present at the time when the victim set herself of fire. There is no evidence on record to show that the victim was immediately provoked to kill herself.
43. Furthur, the conclusion of the trial court that since admittedly the victim was not killed by the appellants it must be presumed that she committed suicide,is preposterous and based on conjuncture and surmise. It must be noted here that no burning material was seized or found in the vicinity where the body was found No igniting material was found either. The police admittedly have not seized any such article. No such article was exhibited. No seizure list was prepared. The conclusion of the trial court that the victim burnt herself is therefore not borne out from the records and cannot be accepted.
44. It is true, as has been held by the Supreme Court in some cases that cruelty cannot be always heard or visible to neighbours. However in the instant case it is seen that the all the residents of the village / area are members of the Basak family / community. The chance of being distant relatives of one another cannot be ruled out. It is common place in Bengal that persons of similar lineage and having the same surname all reside together asa community and the areas are named after such surname. It is therefore surprising that the victim only told her mother and the maternal uncle of the Appellant 24 No.2 did not know anything about marital discord between the Victim and the Appellant No.1. There is no evidence on record to suggest when the last incident of torture occurred.
45. Furthur, PW1 had stated in his evidence that he had informed NarottamBasak about the cruelty meeted out to the victim. The prosecution has strangely not examined him.
46. There is yet another vital lacuna in the prosecution case. It has been admitted both by PW 1 and PW 4 that their son accompanied them to the victim's matrimonial house after coming to know of the death of the victim. But strangely, curiously and surprisingly the prosecution has not examined him. He could have been a vital witness to support the evidence of the PW1 and PW4 and the prosecution case. His evidence has been withheld by the prosecution similar to that of NarottamBasak, Suren Basak, SukumarBasak and PintuBasak. Adverse inference is liable to be drawn against the prosecution in that regard.
47. The cause of death also has not been proved since firstly the original post mortem report has not been produced in evidence. The carbon copy of the post mortem report that was exhibited was denied having been supplied by the doctor to the police who conducted the post mortem. In any event even if such carbon copy of the post mortem report is accepted, the opinion on the cause of death was left inconclusive, i.e. awaiting the FSL report. It is only the evidence of PW 11 given after 4 years of the incident, that suggested that the victim 25 died of 99% burns. As if this was not enough FSL report was never exhibited nor seen by the PW 11,Dr. P. Banerjee, or anyone for that matter. The cause of death by burning has therefore also not been conclusively established by the prosecution.
48. The medicalreports of the Ranaghat Sub-Divisional Hospital whether the victim was brought dead has also not been brought on record by the prosecution. It is in this light that the evidence of PW 2, PW 3, PW 7 and PW 9 that there wasno marital discord between the appellant 1 and the victim assumes some importance and cannot be lightly or brushed aside. Apart from the fact that the prosecution has not been establishbeyond any reasonable doubt either the factum of cruelty, or abetment and the manner to the abetment or the factum of suicide, the evidence of the aforesaid witnesses throws up serious doubts on the prosecution case.
49. The trial judge failed to notice the above serious infirmities in the prosecution case and has unfortunately based his findings wholly on conjecture and surmise. The judgement of the Trial Court impugned is more of an emotional outburst.
50. For the reasons stated hereinabove the order of conviction cannot be sustained. The appellants ought to have been the benefit of doubt and hence impugned judgment and orders are set aside and the appellants are set free and at large and the bail bonds are liable to be discharged.
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51. The Appeal is allowed. There shall be no order as to costs.
52. Urgent Xerox Certified copy of this Judgment, if applied for, be supplied to the parties on urgent basis.
(RajasekharMantha, J.)