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[Cites 4, Cited by 0]

Calcutta High Court (Appellete Side)

Inflicting Cruelty On The Deceased. Mr. ... vs Unknown on 20 April, 2011

Author: Kanchan Chakraborty

Bench: Kanchan Chakraborty

                                                  1



                (39) mb                           C.R.A. 231 of 2000


  In re.: Amrita Pal & ors.


  Mr. Himangshu De,
  Mr. Mrityunjoy Chatterjee..................for the Appellants.


  Mr. Swapan Kumar Mallick ..........................for the State


      This appeal is directed against the judgment and order of conviction and sentence

dated 28.6.2000 and 29.6.2000 respectively passed by the learned 1st Additional Sessions

Judge, Burdwan in Sessions Trial No. 32/1999 (Sessions Case No. 69/1998), whereby the

appellants were found guilty of offences under Sections 498A/306 of the Indian Penal

Code and were sentenced to suffer rigorous imprisonment for two years and pay fine of

Rs.500/- each for committing offence under Section 498A of the Indian Penal Code and

rigorous imprisonment for five years and to pay Rs.500/- each for the offence committing

under Section 306 of the Indian Penal Code.

      The case of the prosecution in the learned Trial Court is stated below, in short:

      One Sanat Kumar Pal lodged one First Information Report in Kalna Police Station on

01.10.1993

alleging therein that his daughter, Gita Rani Pal, was subjected to physical and mental torture in her matrimonial house by the appellants, who happened to be her father-in-law, mother-in-law, brother-in-law, sister-in-law and maternal uncle-in-law. It was further alleged that at the time of marriage, Sanat Kumar Pal provided his daughter with adequate money and also fulfilled the demands of the bridegrooms' family. Gita Rani Pal used to complain about the torture inflicted on her by the appellants. Ganesh 2 Chandra Pal, her husband, knew everything. In their wedlock, Gita gave birth to a daughter. On Aghrayan 20, 1399 B.S. Ganesh, her husband, had taken her to Hridaypur village. She was again subjected to torture. On Bhadra 12, 1400 B.S. she came to her paternal house and disclosed that she was not in a position to bear the torture any more. Ganesh, her husband, arrived at on Bhadra 16 and had taken her to his house at Hridaypur. On Aswin 11, 1400 B.S. Gouri Rani consumed poison and was admitted in Kalna Hospital where she expired on Aswin 12, 1400 B.S. On the basis of the said First Information Report, Kalna P.S. Case No. 139/1993 dated 1.10.1993 was registered and investigated into. The investigation was ended in charge sheet under Sections 498A/304 of the Indian Penal Code against all the opposite parties, who pleaded not guilty in the Trial Court and, accordingly, faced the trial.

The learned Trial Court recorded evidence of as many as 18 witnesses on behalf of the prosecution. Some documents including the dying declaration, bed-head tickets, inquest report, First Information Report, seizure list were admitted into evidence and marked exhibit on behalf of the prosecution. The appellants had taken no specific plea as defence but denied the prosecution case completely in the Trial Court. Upon consideration of the evidence on record, oral and documentary, the learned Trial Court found that the prosecution succeeded in establishing the case against the appellants and, accordingly, passed the judgment of conviction and order of sentence impugned. The appellants, being aggrieved by and dissatisfied with the judgment and order, have preferred this appeal on manifold grounds, mainly :-

(a) that the learned Court failed to appreciate the evidence on record on its proper perspective;
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(b) that the learned Court although found discrepancies in the evidence on material points, believed the evidence and recorded sentence on the basis of that;
(c) that the learned Court failed to appreciate the fact that the alleged suicide was committed by Gita Rani out of sentiment and there was no mens rea on the part of the appellants in the matter for abating her to commit suicide;
(d) that the learned Trial Court failed to appreciate that there is no specific allegation of inflicting cruelty on Gita Rani Pal either in the First Information Report or in the oral testimony of the witnesses examined on behalf of the prosecution;
(e) that the learned Trial Court relied on the dying declaration, i.e., Exhibit-4/2, which does not disclose the mental and physical condition of the declarant at the time when the said declaration was made and whether the contents of the declaration reduced in writing was read over or not to the declarant;
(f) that the judgment and order impugned being otherwise bad in law, is liable to be set aside.

The marriage between Gita Rani and Ganesh Pal had taken place about two years prior to the death of Gita Rani. This case appears to be a different one because the husband has not been made an accused in the case. Rather, the Exhibit-4/2, i.e., the dying declaration, shows that Gita Rani had cordial relations with her husband, who never inflicted torture upon her. The P.W. 13, Soraj Bhowmik, S.I. of Police attached to the Kalna Police Station at that relevant point of time and acted as Investigating Officer of the case, stated in his cross-examination that Ganesh Pal, i.e., the husband of the deceased 4 stated to him that his parents separated him from them and, thereafter, he started residing with his wife in a separate mess.

The exhibit-4/2, has been exhibited as dying declaration by the learned Trial Court and basing on that, the conviction of the appellants were recorded. Exhibit 4/2 shows that the Magistrate (P.W. 14) who recorded the statement, did not mention within the four corners of the same as to what was the mental and physical condition of the declarant at the time of recording declaration. It does not also disclose that the contents were read over to the declarant before her L.T.I. were taken on it.

Mr. Himangshu De, learned advocate for the appellants, contends that the evidences of the witnesses especially local people as well as the husband of the deceased altogether indicates that the relation between the deceased and the appellants were quite good. The husband, P.W. 2, who has not been made an accused in this case and having love and affection for his wife, had no reason to suppress the truth. Therefore, according to Mr. De, the learned Trial Court ought to have considered the evidence of the husband and local people who said that the relation between the deceased and inmates was quite normal. This apart, Mr. De submits, that in view of settled position of law, when a dying declaration is recorded in writing, the person who reduced it in writing, is under obligation to mention the physical and mental strength of the declarant and, of course, read over the contents of the same to the declarant. In the instant case, neither thing has been done. Again, Mr. De submits, simply because the mother-in-law said that 'go and die' cannot be said to be amounting to abatement of committing suicide in view of Section 306 of the Indian Penal Code. Mr. De submits that the learned Trial Court being driven by sentiment 5 has passed the judgment without appreciating the evidence in its proper perspective. Therefore, the judgment impugned is liable to be set aside.

Mr. Swapan Kumar Mallick, learned advocate appearing on behalf of the opposite party/State, contends that it is true that there is no specific allegation in the evidence as to the nature of alleged cruelty and the role played by the appellants in the matter of inflicting cruelty on the deceased. Mr. Mallick further contends that the Exhibit 4/2 does not disclose the mental and physical state of the declarant at the time she made her statement. But, Mr. Mallick, submits that taking that evidence into consideration, the learned Trial Court came to the conclusion that the charge levelled against the appellants proved beyond reasonable doubt and this Court should not upset that finding.

I have carefully gone through the evidence on record. This case appears to be a different one because the husband of the deceased has not been made an accused rather, was given a clean-chit by the deceased at the time she made dying declaration. It is peculiar in another sense also because the husband of the deceased has been residing separately from the parents at the relevant point of time. The husband, who has been examined as P.W. 2, stated clearly that the relation between the appellants and the deceased was quite cordial and they always behaved nicely with the deceased when she had been residing with them. This particular statement of the P.W. 2 makes it quite clear that at the relevant point of time the deceased was not residing with his parents jointly but separately with the P.W. 2. I find from the judgment impugned that the learned Trial Court has not taken that fact seriously. It also appears from the evidence on record that the P.W. 3, P.W. 4 and P.W. 5, the local men did not support the prosecution case. The P.W. 6, who lodged the First Information Report, i.e., the father of the deceased, has stated 6 that when Gita Rani came to his house, she reported about the torture inflicted on her by the appellants. There is no specific statement, whatsoever, against any of the appellants as to the manner of torture and specific role played by them in the matter of torturing Gita Rani. It is nowhere also stated by the P.W. 6, that what was the reason for inflicting torture on the deceased. I find from the First Information Report as well as the evidence of the P.W. 6 that Ganesh Pal, the P.W. 2, the husband of the deceased, took her back home, obviously the separate home where the deceased and the P.W. 2 had been residing immediately before the alleged incident had taken place. In absence of any specific evidence as to the nature of torture and reason of torture as well as role played by the appellants, it is really hard to accept the case of the prosecution under Section 498A of the Indian Penal Code. The P.W. 7, who happens to be the mother of the deceased, simply stated that Gita Rani was subjected to cruelty in her matrimonial house. She has failed to enlighten anything more. P.W. 9, attached to Kalna S.D. Hospital as a clerk at that relevant point of time, stated that Gita made statement voluntarily and she was mentally fit to make such dying declaration. This statement of the P.W. 9 appears to be contradictory to the statement of the P.W. 6, the father of the deceased, who stated that when he went to see Gita in hospital, she was at her last stage and he could not follow what she was. It has already been stated earlier that Exhibit 4/2 did not disclose as to what was the mental and physical condition of the declarant at the time when declaration was made.

The Magistrate, who has been examined as P.W. 14, has not stated anything in that regard. The learned Trial Court, however, relied on the Exhibit 4/2 simply on the basis of the evidence of P.W.18, the doctor, who was present at the time when the dying 7 declaration was recorded by the Executive Magistrate, P.W. 14. He stated that the patient was conscious at the time she made declaration. This statement does not necessarily imply that patient was mentally and physically stable or fit to make such a declaration.

It is true that the Post Mortem Report, exhibit-7, leaves no room of doubt that death of Gita Rani was caused due to poison found in her stomach at the time of post mortem. It is also true that the statement made by her was recorded by Executive Magistrate but, nowhere from the prosecution case it appears that the appellants had actually abated her to commit suicide. In order to establish a case of abating of committing suicide, prosecution has established two things, firstly, that the death was a suicidal in nature and that intention of the accused/appellants to aid and instigate or abate the deceased to commit suicide. Herein, in this case, I find that the death is suicidal in nature. The next ingredient is, of course, whether the appellants had any intention to aid or instigate or abate the deceased to commit suicide. I find that nowhere within the four corners of the evidence it has been spelt out that the appellants had actually instigated the deceased to commit suicide or abated her to commit suicide or they had any intention that she would commit suicide. Simply because the mother-in-law has uttered "go and die' cannot be said to have been uttered with mens rea. Alleged suicide was not the direct result of the alleged bitter relationship between the deceased and the appellants. In such cases, it can hardly be accepted that the appellants had actually abated or instigated the deceased to commit suicide. While the husband of the deceased has come forward and stated categorically that the relationship between his wife and other inmates were cordial and that they had been living separately prior to the alleged incident of suicide, the 8 presumption under Section 113 of the Evidence Act cannot possibly be drawn against the appellants.

I find substance in the contention of Mr. De. The learned Trial Court ought to have taken all these factors into consideration. The Exhibit 4/2 cannot be said to be a dying declaration. The evidence of the witnesses regarding the mental and physical condition of the declarant at the time of making dying declaration is contradictory to each other. There is no specific case of torture on the deceased by the appellants either in the First Information Report or in the evidence. There is also no specific evidence as to how and in what manner the appellants aided to or instigated or abated the deceased to commit suicide. There is no proximity in between the commission of suicide and the alleged torture. The deceased and her husband (P.W. 2) had been residing separately prior to the date of incident. All these facts were not taken into consideration by the learned Trial Court. I find that the learned Trial Court failed to appreciate the evidences in its proper perspective and recorded conviction of the appellants on the basis of the evidence which are found contradictory and inconsistent. Therefore, the appellants should have been acquitted on "benefit of doubt".

In view of discussion above, I find that the judgment impugned is liable to be set aside. Accordingly, the appeal succeeds. The judgment and order impugned are set aside.

The appellants be discharged from their bail bonds, if any, without delay. With the directions above, this appeal stands disposed of.

In view of disposal of the Appeal itself, the Rule, being C.R.R. 2097 of 2000, issued by this Court on 17.8.2000, has become infructuous and, accordingly, the same is discharged 9 Interim order, if any, stands vacated.

There will, however, be no order as to costs.

Let urgent photostat certified copy of this order, if applied for, be given to the learned advocates of the parties upon compliance of necessary formalities.

(Kanchan Chakraborty, J)