Calcutta High Court (Appellete Side)
Anup Dutta Chowdhury vs The State Of West Bengal -- Opposite ... on 12 November, 2013
Author: Toufique Uddin
Bench: Toufique Uddin
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
CRA No. 185 of 2011
Anup Dutta Chowdhury --Appellant/Accused
-versus-
The State of West Bengal -- Opposite Party
Mr. Subrata Bhattacharya
Mr. Navanil De ... for the appellant
Mr. Antariksha Basu ... for the State
Heard on : 18.9.2013
Judgment on : 12.11.2013.
Toufique Uddin, J. :
This appeal arose out of the judgment and order dated 24.2.2011 and 25.2.2011 passed by the learned Additional Sessions Judge, 1st Court, Burdwan in Sessions Trial No. 3 of 2010 arising out of Sessions Case No. 125 of 2010 and thereby convicting the appellant for commission of offence under sections 498A/306 of Indian Penal Code and sentencing them accordingly.
In the background of this appeal, the fact in short is as follows :
One Smt. Manju Dutta Chowdhury daughter of Dilip Das resident of Bahir Sarbamongala, Punjabi Para of Police Station and District- Burdwan was married with Anup Dutta Chowdhury son of late Debesh Dutta Chowdhury of Kanchan Nagar, Uday Pally on 28th February, 2000 and thereafter during their wedlock, Manju gave birth to two male children who are at present seven years and one and half years old. At the time of marriage the family of the accused demanded rupees eighty thousand cash, ten bhories of gold ornaments, one refrigerator, bed, dressing table and other house hold articles which were fulfilled by the parents of Manju. But still then the accused persons created both mental and physical torture upon Manju. Even the accused persons pressurized Manju for bringing further rupees 50 thousand for construction of the house from her parents. The accused persons further tortured upon her on the demand of Rs. 1 lakh more. She never resided in peace. On 14.8.2009 at about 12.30 p.m. the family members of Manju got information that their daughter committed suicide by hanging. They rushed to the matrimonial home of Manju and found her body hanging with several marks of injury on her person.
A complaint was lodged before Burdwan Police Station being Burdwan P.S. Case No. 465 of 2009 dated 15.8.2009 under sections 498A/302/201/34 of Indian Penal Code read with section 3/ 4 of DP Act.
After investigation, police has submitted charge-sheet against the accused under sections 498A/306/34 of Indian Penal Code.
The case was committed to the Court of Sessions by the learned Magistrate. After hearing of both sides, learned Trial Court framed charges under sections 498A/306/34 of IPC against the accused persons.
The contents of the charges were read over and explained to them when the accused persons pleaded not guilty and claimed to be tried.
To contest this case the prosecution examined as many as eleven witnesses while none was examined on the side of the defence.
However, the accused persons were examined under section 313 of Cr.P.C. The defence case as it appeared from the trend of cross-examination and replies given by the accused persons at the time of 313 Cr.P.C. is denial of offence with a plea of innocence.
On trial, the learned Trial Court convicted the present appellant by the impugned judgment. It has to be seen if the impugned judgment suffers from any infirmity and as such calls for any interference or not.
Sections 498A/ 306 of IPC read as follows :
"498A. Husband or relative of husband of a woman subjecting her to cruelty. - (1) 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."
Learned counsel for the appellant argued on the following points :
1) The evidence of P.W.- 1 and 3 being relations are not reliable in absence of any direct evidence or independent witnesses;
2) Marriage took place about 11 years back. So, the presumption under section 113 is not available;
3) Factum of torture was not stated to I/O but in evidence it has been stated so in the form of improvement;
4) No treatment sheet of hospital is sent;
5) Post-mortem report does not show any mark of injury;
6) Death was in the dining room and not bed room. So, special knowledge of the husband is wanting and
7) Lastly, there is no evidence of instigation or abetment of the incident.
In support of his contention, learned counsel for the appellant cited before me two decisions as reported in 2013(11) C.Cr.L.R (Cal) 882 and 2013 (II) C.Cr.L.R. (SC) 481.
On the other hand, learned counsel for the State strenuously argued that this is a full proof case and there is nothing to interfere with the findings of the learned Trial Judge. He argued some injuries were found from the evidence of P.M. Doctor and those were before commission of suicide. He further agreed that the P.W.- 5 a neighbour cannot be disbelieved.
To appreciate the case from a better angle, some relevant pieces of evidences are required to be jot down.
The written complaint is Exhibit- 2. It contains the fact as has been reproduced in the first paragraph of the impugned judgment.
Exhibit- 3 is the surathal report made by one Manoranjan Basak, ASI of police. It appeared to him during the course of preliminary enquiry that due to family trouble she committed suicide by hanging with the help of a sari. He also found no mark of injury in the body.
Exhibit- 7 is a sketch map.
Exhibit- 5 is the P.M. report.
P.W.- 1 is the mother of the victim girl. She corroborated the prosecution story. She identified all the accused persons and stated that they used to torture the victim due to non- fulfillment of the demand of dowry. She denies the suggestion given to her by the defence side.
P.W.- 2 is the brother of the deceased. He attempted to corroborate the evidence of P.W. 1, over the fact of demand of dowry and infliction of torture by the accused persons culminating in the commission of suicide by the victim lady.
P.W.- 3 is another brother of the deceased. He too followed suit P.W.- 2. P.W. - 4 is a resident of the locality. He heard that Manju was tortured by the accused and so, sometimes she used to come back to her parent's house.
P.W.- 5 is the resident of place of occurrence and witnessed the dead body of Manju. She did not say anything about torture or demand of dowry.
P.W.- 6 is also another independent witness residing in that area. She was declared hostile. She could not say how the victim died.
P.W.- 7 is a police officer. After investigation he held inquest over the dead body. P.W.- 8 is a constable carried the dead body for examination. He is the forwarding witness. P.W.- 9 is a Doctor. He held post-mortem over the dead body. The Doctor found apart from ligature two injuries as follows :
"1) Bruise 2" X Rs" on left arm lateral aspect 3 ½ below acromion ;
2) Bruise 2" X 1" over dorsal aspect of right forearm 4" above wrist.
All the injuries showed evidences of vital re-action. The bruises were bright red in colour. All the injuries are blunt force injuries so it can be said that the said injuries may have taken place before committing suicide."
P.W.- 10 is a constable. He is a seizure list witness.
P.W.- 11 is an I/O. After investigation he submitted charge-sheet. This is a position of the evidence.
Learned counsel for the appellant submitted that there was improvement of statements given by the witnesses. In this regard, it is needless to mention that the de facto complainant as well as the brothers of the victim lady stated that the accused persons used to inflict torture upon her over the demand of dowry etc. But the cross- examination of the I/O P.W.- 11 has shows that the P.W.- 1/mother of the victim, P.W.- 2/the brother, P.W.-3/ another brother and P.W.- 4 and 5 did not actually state that the accused used to torture the victim. So, there is improvement and embellishment in the evidence given by the P.W.- 1 to P.W.- 5. Moreover, in explicit turn there is no mention in evidence and 161 statement in a matching form to show that over the demand of dowry the victim was harassed or so.
Regarding the injury much was stated by the State and the Doctor was of opinion that those injuries were homicidal in nature. But we should bear in mind that this is a case under sections 498A and 306 of the IPC. Regarding torture, the evidence is insufficient as has been stated above.
Next comes the question of abetment of suicide.
'Abetment' is something different. Certain discord and differences are unavoidable but if the petulance, discord and differences are not expected to induce a similary circumstanced individual in the given society to which the deceased belonged, the conscience of the court should not be satisfied to find that the accused abetted suicide of the deceased. We may put reliance on (2001) 9 SCC 618 in this regard.
The Hon'ble Apex Court has laid down in (2005) SCC (Cri) 56 that abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In case of conspiracy also it would involve mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding, the doing of a thing is required before a person can be said to be abetting the commission of offence under section 306 IPC. There should be proximity between alleged act of cruelty and suicide. We may put reliance on 2011 (2) Supreme 220 for analogy.
In this regard, one example may be taken as follows :
A man while hurling continuously serious remarks takes another man near a rail line and asked the man to jump on the rail to put an end to his life, and the other man did it out of frustration and died. This situation may create a case of abatement. Further, abatement does not develop by a single act. It constitutes a series of mental preparations and acts culminating to provoke another man to commit suicide. The term "instigate" was considered by the Hon'ble Apex Court in (2002) SCC (Cri) 1088 wherein it was held by Their Lordships that instigation is to goad, urge forward, provoke, incite or encourage to do an act to satisfy the requirement of "instigation" though it is not necessary that actual words must be used to that effect or what constitutes "instigation" must necessarily and specifically be suggestive of the consequences. The word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. Thus, to construe "instigation", a person who instigates another has to provoke, incite, urge or encourage the doing of an act by the other by "goading" or "urging forward". The dictionary meaning of the word "goad" is "a thing that stimulates someone into action; provoke to action or reaction".
Similarly, "urge" means to advise or try heard 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 intention to provoke, incite or encourage the doing of an act by the latter.
As observed in Ramesh Kumar vs. State of Chhattisgarh {(2001) 9 SCC 618} where the accused by his acts or by a continued course of conduct creates such circumstances that the deceased was left with no other option to commit suicide, an "instigation" may be inferred. In other words, in order to prove that the accused abetted commission of suicide by a person, it has to be established that
(i) the accused kept on irritating or annoying the deceased by words, deeds or wilful omission or conduct which may even be a wilful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or wilful omission or conduct to make the deceased move forward more quickly in a forward direction, and
(ii) that the accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the manner noted above. Undoubtedly, presence of mens rea is the necessary concomitant of instigation.
The ingredients of abetment of suicide are as follows :
The prosecution has to prove -
(i) the deceased committed suicide;
(ii) the accused instigated or abetted for committing suicide (committing suicide by itself is a crime) ;
(iii) direct involvement by the accused in such abetment or instigation is necessary."
In the case at hand I do not find any iota of evidence that the victim was harassed in a considerable manner even on the demand of dowry in the form of provocation or instigation to cut short of her life.
Careful scanning of evidence at least does not show that the victim was instigated by the accused to commit suicide. It is true that presumption under section 113 of the Evidence Act is available against the accused but presumption will not alone be sufficient to warrant an order of conviction. The presumption should have some basis. It has also been seen that regarding torture on the demand of dowry, there is no solid and tangible legal evidence. Rather embellishment of evidence is available in the record. Death may occur for various reasons. This is equally painful that a young lady having many aspirations in her life has committed suicide. Apparently, it causes eyebrows but in order to inflict legal punishment upon the husband in whose house the victim died, some legal evidence is required. Practically it is not available in this case.
In view of such consideration, I am of the opinion that the findings of the learned court below are not correct.
Accordingly, the appeal stands allowed.
The judgment and sentence passed by the learned court below are set aside. The appellant be set at free and be released from bail bond, if not wanted in any other case.
Let a copy of this judgment along with LCR be sent back to the learned Trial Court immediately.
Criminal Section is directed to supply the urgent photostat certified copy of this judgment to the parties, if applied for.
(Toufique Uddin, J.)