Calcutta High Court (Appellete Side)
Narayan Palmal And Another vs The State on 11 July, 2008
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present: The Hon'ble Justice Mr. Ashim Kumar Banerjee
And
The Hon'ble Justice Mr. Tapas Kumar Giri
Criminal Appeal No.351 of 1989
Narayan Palmal and Another
Versus
The State
For the appellant: Mrs. Pranati Goswami
For the State: Mr. Swapan Mallick
Mr. Prabir Chatterjee
Heard on: June 27 2008, June 30, 2008 and July 4, 2008.
Judgment on: July 11, 2008.
TAPAS KUMAR GIRI, J.:-
Narayan Palmal and Urmila Palmal being convicted under Section 498A/306
of the Indian Penal Code and sentenced to suffer R.I. for 10 (ten) years each and to
pay fine of Rs.5,000/- each in default to two years R.I. and for not separate sentence
for the offence under Section 498A I.P.C. by the Learned Additional Sessions Judge,
4th Court, Midnapur in Sessions Trial Case No.1 of October, 1988 arising out of G.R.
Case No.931 of 1983 preferred this appeal challenging the order of conviction and
sentence.
The prosecution case, in brief, was that Sabitri Palmal was married with
accused Narayan Palmal about 14 years ago. After marriage Sabitri lived with her
husband in his house. About 6 (six) months after the marriage, the trouble started.
Accused Narayan and his mother Urmila used to torture upon Sabitri for non-
payment of insufficient dowry. Unable to bear the inhuman torture by the accused
persons, Sabitri died hanging on 18.05.1985 corresponding to 4th Jaistha 1392 B.S.
Subas Mallick (P.W.1), the brother of Sabitri lodged a written complaint (Ext.1) at
Debra P.S. on 18.05.1985. On the basis of the written complaint, Debra P.S. Case
No.6 dated 25.05.1985 was started against the accused. The G.D. entry No.641 dated
18.05.1985 (Ext.2) was noted on the basis of the initial information. Mr. S. Roy
Chowdhury (P.W.14) partly investigated this case and during his investigation, the
inquest and the post-mortem were done. As per order of the S.P., Midnapur, Mr.
P.K. Mukherjee (P.W.15) after taking the charge of the investigation completed the
investigation and submitted the charge sheet against the accused.
Learned Additional District and Sessions Judge 4th Court, Midnapur on perusal
of necessary papers placed before him and after hearing both the prosecution and the
accused, framed charge under Section 498A/306 I.P.C. against the accused Narayan
Palmal and Urmila Palmal who pleaded innocence and claimed to be tried.
During trial, the prosecution examined 16 (sixteen) witnesses in support of the
prosecution case which included Sri Subas Chandra Mallick (P.W.1), Sundari Bhunia
(P.W.2), Durgarani Mallick (P.W.3), Bhabani Bhunia (P.W.4), Pravash Mallick
(P.W.5), Jiten Majumder (P.W.6), Sandharani Mahapatra (P.W.7), Belarani
Mahapatra (P.W.8), Satya Kinkar Pramanik (P.W.9), Dhiren Pramanik (P.W.10),
Manaranjan Paria (P.W.11), Gati Krishna Mallick (P.W.12), Nemai Mukherjee
(P.W.13), Sri S. Roy Chowdhury (P.W.14), Sri P.K. Mukherjee (P.W.15), Dr. S. Roy
(P.W.16). Except Sandharani (P.W.7) who was only tendered by the prosecution,
P.W.1, P.W.2, P.W.3, P.W.4, P.W.5, and P.W.12 who are the close relatives of
deceased Sabitri were the supportive evidence of the prosecution to prove the torture
upon Sabitri. P.W.6, P.W.8, P.W.9, P.W.10, P.W.11 were the local village persons
who supported the prosecution's case of allegation of torture. P.W.13 who was the
constable of police accompanied the dead body for post mortem to the hospital.
P.W.14 and P.W.15 are the police persons who investigated the case and submitted
the charge sheet. P.W.16 who held P.M. examination was the M.O.
Learned Additional District and Sessions Judge, Midnapur as it transpires from
his judgment placed his reliance on the post mortem report and also the statements of
witnesses including the doctor.
Learned Additional District and Sessions Judge 4th Court, Midnapur during
trial also brought on record the original complaint with F.I.R.(Ext.1), G.D. entry
(Ext.2), Formal F.I.R. (Ext.3), Sketch Map (Ext.4) and P.M. report.
After elaborate discussion of the oral evidence of the prosecution and after
submission of both prosecution and defence, in detail, the Learned Additional
Sessions Judge after accepting the prosecution evidence found the present appellants
guilty for the offence under Section 498A/306 I.P.C. and the appellants were
convicted and sentenced in accordance with law.
Appearing for the appellants in connection with this appeal Learned Advocate
Mrs. Pranati Goswami after discussing the prosecution evidence challenged the order
of conviction and sentence on the following grounds:-
Mrs. Goswami contended that the F.I.R. was lodged after 7 (seven) days from
the date of occurrence and there was no explanation for delay of lodging F.I.R. It
was a concocted story only to implicate the accused.
Mrs. Goswami contended that the evidence of P.W.1, P.W.2, P.W.3, P.W.4,
P.W.5 and P.W.12 are not reliable as they were close relatives of deceased Sabitri
and they might be treated as interested witness. P.W.3, the mother of the deceased
did not allege any incident of torture as well as the demand of dowry. Mrs. Goswami
also contended that the marriage of Sabitri took place about 14 years ago and the age
of her first child was about 12 years and that child was the best witness to say any
torture upon Sabitri by the accused. The prosecution did not cite the said child as
witness. Therefore, the allegation of torture for dowry is not proved beyond
reasonable doubt.
Mrs. Goswami contended that the evidence of P.W.6, P.W.8, P.W.9, P.W.10
and P.W.11 are not at all reliable as they are the interested witness and their evidence
before the Court are the fabricated from the statement before the I.O. under Section
161 Cr. P.C. Therefore, the evidence of the above prosecution witnesses are not
sufficient to believe the prosecution's allegation.
Mrs. Goswami contended that the accused are falsely implicated in this case
out of political rivalry.
Mrs. Goswami contended that the occurrence took place about 14 years after
from the date of marriage and as such the provision of Section 113 A of the Indian
Evidence Act will not attract regarding the presumption as to abetment of suicide by
a married woman. According to the provision of Section 498A I.P.C., there must be
sufficient proof of "cruelty" that drove the woman to commit suicide. But in the
present case, there is no sufficient proof and as such the allegation under Section 306
I.P.C. is not established against the accused. The accused are entitled to get the
acquittal from the alleged charge and as a result the order of conviction passed by
Learned Additional District and Sessions Judge, 4th Court Midnapur is liable to be set
aside. In support of the contention, Mrs. Goswami has cited the case laws reported in
1989 Cal Criminal Law Reporter (Cal) 40 (Niharbela Banerjee & Anr. -Vs.- The
State), 1990 Cal Cr. Law Reporter (Cal) 8 (Labanya Halder & Ors. -vs.- The State),
2008 (2) Crimes 175 (SC) (Sohan Raj Sarma -vs.- State of Haryana).
Mr. Swapan Kumar Mallick appearing for the State/respondent contended that
there was no challenge from the side of the accused in respect of the death of Sabitri.
Mr. Mallick contended that the evidence of the prosecution witnesses i.e.,
P.W.1, P.W.2, P.W.3, P.W.4, P.W.5 and P.W.12 who were the near relatives of
Sabitri as well as the evidence of P.W.6, P.W.8, P.W.9, P.W.10 and P.W.11 who
were the co-villagers are sufficient to prove the continuous torture upon Sabitri for
dowry and as such Sabitri committed suicide.
Mr. Mallick also contended that the evidence of P.W.8, who was the cook of
the house of the accused clearly stated the continuous torture upon Sabitri for dowry
and as a result Sabitri committed suicide. Mr. Mallick has cited a case law reported
in 2007 (3) SCC 701 corresponding to AIR 2007 S.C. 2457 (Kishori Lal -vs.- State
of Madhya Pradesh).
Mr. Mallick, therefore, contended that having regard to prosecution evidence,
Learned Additional District and Sessions Judge rightly convicted the appellant under
Section 498A/306 I.P.C. and there appears no ground whatsoever to interfere with
the order of conviction and sentence.
We have considered the submission of Mrs. Goswami and Mr. Mallick.
It is needless to mention that Sabitri died by hanging on 18.05.1985 and it was
proved by P.W.16 (Dr. S. Roy) who conducted the post-mortem examination on the
dead body of Sabitri on 19.05.1985 and she found the ligature mark high up in the
neck and she opined that the death of Sabitri was due to asphyxia resulting from ante
mortem hanging and the cross-examination by the defence was declined. Therefore,
Sabitri committed suicide by hanging.
First point on which Mrs. Goswami relied, was regarding the delay of lodging
F.I.R. As per submission it was nothing but a false allegation and there was no
explanation on behalf of the prosecution.
In the F.I.R. (Ext.1) lodged by Subas Chandra Mallick who is the brother of
Sabitri, it is seen from the evidence of P.W.1 that the incident took place on
18.05.1985 at 12 noon and Ext.1 was lodged on 19.05.1985 and he came to know
that the enquiry was not started and he contacted with the S.P., Midnapur and
thereafter the case was started. Moreover, P.W.14 who was the initial I.O. of this
case stated in his evidence that on the basis of the information by one Narayan
Palmal the G.D. was lodged being No.641 dated 18.05.1985 (Ext.2) and the U.D.
case No.17 dated 18.05.1985 was started. Therefore, there was no delay for lodging
the F.I.R. and the proper explanation was given from the part of the prosecution and
as such the possibility of concoctions and embellishment and the improvement do not
arise.
The next point that awaits consideration is whether the appellants were guilty
of cruelty within the meaning of Section 498A of the Indian Penal code and
abatement of the suicide.
If the charge under Section 498A of the I.P.C. is established, the Court may
draw presumption that the appellants abetted the suicide committed by the deceased
and the appellants are guilty under Section 306 I.P.C. In the present case, the
deceased committed suicide about 14 years after her marriage. As such the
presumption as per provision of Section 113A of the I.P.C. is not applicable.
It is to be considered whether the prosecution has been able to prove "cruelty"
within the meaning of Section 498A of the Indian Penal Code.
P.W.1, P.W.2, P.W.4, P.W.5, P.W.6, P.W.8, P.W.9, P.W.10 and P.W.11 are
the witnesses to prove the alleged cruelty. P.W.1 who is the brother of Sabitri has
stated that due to non-payment of dowry as well as not giving gold ornaments at the
time of 'Annaprasan' of her youngest son she was tortured both physically and
mentally. In the evidence of P.W.1, there is no evidence who demanded the dowry
from Sabitri and who demanded the gold ornaments from Sabitri. P.W.12 who is the
father of Sabitri did not state in his evidence about the demand of dowry. But
P.W.12 stated that the accused demanded the gold ornaments from Sabitri for
'Annaprasan' of her youngest child and he (P.W.12) expressed his inability to satisfy
the demand. The said demand of gold ornaments as per evidence of P.W.12 cannot
be said as dowry demand as it had come about 12/14 years after the marriage of
Sabitri.
P.W.8 who was the cook of the house of accused stated that the accused used
to quarrel with Sabitri due to latches of domestic affairs and for non-payment of
dowry from her father. The above evidence of P.W.8 does not indicate the offence of
cruelty as per provisions of Section 498A of the I.P.C.
P.W.4 who is the neighbour the accused stated that he heard the 'golmal' from
the house and he saw the assault on one or two occasions. The evidence of P.W.4
does not indicate any demand of dowry from Sabitri.
P.W.5 who is the brother of Sabitri stated that both accused used to assault his
sister. No evidence for demand of dowry has come from the evidence of P.W.5. If
there was any assault or torture upon Sabitri for non-payment of dowry or for non-
giving the ornament for 'Annaprasan', P.W.5 must state the said fact.
P.W.6, P.W.9, P.W.10 and P.W.11 did not state any demand of dowry from
Sabitri by the accused. They stated in their respective evidence of torture upon
Sabitri by the accused.
If there was any assault upon Sabitri by the accused, P.W.5 was the best
witness to say in that respect as he had the frequent visit to her house. Moreover, the
marriage of Sabitri was held about 14 years ago and she had four children at the time
of death. The age of her eldest child was about 12 years and that child was the best
witness to say whether there was any torture (physical or mental) upon Sabitri by the
accused. The prosecution (i.e., I.O.) did not examine the said child of Sabitri at the
time of investigation of this case. Therefore, P.W.5 is the interested witness in this
case.
In the present case, no direct evidence regarding cruelty or harassment is seen
from the statements of the above witnesses. In the statement of P.W.4, P.W.6, P.W.9
and P.W.10 there are some discrepancies recorded by the investigating officer
(P.W.14) under Section 161 Cr. P.C. Such omissions do not strike the root of the
prosecution case.
As per submission of Mrs. Goswami, it is seen that the statement of some
witnesses under Section 161 Cr. P.C. was recorded about 3 to 6 months after from
the date of occurrence and their statements are fabricated and false only to involve
the accused falsely out of political rivalry. It is true that the delay in recording
statement of the witnesses by the police is not per se fatal. Truthful witness can be
believed. In the present fact and circumstances the prosecution was unable to bring
the said truthful witnesses to establish the allegation against the accused.
Moreover, P.W.3, the mother of Sabitri did not state anything about the
demand of dowry as well as the torture upon her, though P.W.3 visited the house of
the accused on one or two occasion. If there was any demand of dowry or torture
upon Sabitri by the accused, Sabitri must state the same to her mother. Therefore,
the charge under Section 498A I.P.C. does not prove against the accused beyond
reasonable doubt and suspicion.
The next point that awaits consideration is the allegation for charge under
Section 306 I.P.C.
In case of alleged abetment of suicide there must be proof of direct or indirect
act of incitement to the commission of suicide. Section 107 of the Indian Penal Code
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 going of a thing when
he instigates any person or intentionally aiding that person in doing of a thing. The
active role required before a person can be said to be abetting the commission of
offence under Section 306 of I.P.C.
In the present case, P.W.8 stated that accused Urmila used to tell Sabitri to
commit suicide and the accused persons induced Sabitri to commit suicide due to the
fact that if Sabitri died accused Narayan would be married again. There is no other
evidence from the prosecution witnesses to the effect that Sabitri told them to
commit suicide and Narayan would marry again. The said evidence is not sufficient
to convict the accused under Section 306 I.P.C. for abetting the commission of
offence.
In view of the foregoing discussion, this Court is of the firm view that the
impugned judgment for conviction and sentence of the appellants is not sustainable
and the same is liable to be and is hereby set aside.
Resultantly this appeal succeeds and is hereby allowed. The conviction and
sentence of the appellants as passed by the Learned District Judge and Sessions
Judge, 4th Court Midnapur are hereby set aside. They are acquitted from the charges
labelled against them. The appellants are on bail. Their bail and surety bonds stand
discharged. Office is directed to send a copy of this judgment to the Trial Court
along with its record in due course.
ASHIM KUMAR BANERJEE, J.:
I agree.
(ASHIM KUMAR BANERJEE, J.) (TAPAS KUMAR GIRI, J.)