Calcutta High Court (Appellete Side)
Bipad Taran Das & Ors vs The State Of West Bengal on 24 June, 2013
Author: Toufique Uddin
Bench: Toufique Uddin
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Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
(Criminal Appellate Jurisdiction)
Present:
The Hon'ble Justice Toufique Uddin
CRA 405 of 2012
Bipad Taran Das & Ors.
Vs.
The State of West Bengal
For Appellants : Mr. Tapan Dutta Gupta
For the State : Mr. Prasun Dutta
Heard on : 07.06.2013
Judgment on : 24.06.2013
Toufique Uddin, J.
This appeal arose out of judgment and order of conviction dated 29.5.2012 passed by Learned Additional District and Sessions Judge, Fast Track Court, Bolpur, Birbhum in Sessions Case No. 28 of 2006, 2 convicting the appellants to suffer rigorous imprisonment for seven years for commission of offence under Sections 498A/306 of I.P.C and sentencing them accordingly.
In the background of this appeal, the facts are as follows:-
On 01.08.2005 at about 13.10 hours one Dinobandhu Das lodged a complaint with IC, Bolpur P.S that his daughter Mallika Das was married to Bipad Taran Das, s/o Durjodhan Das on 16th Magh 1411 B.S corresponding to 30.01.2005 as per Hindu rites and customs. At the time of marriage he paid rash Rs.20,000/-, gold ornaments, one bicycle and some other articles. After three months of marriage accused persons started physical and mental torture upon his daughter on demand of further dowry of Rs. 10,000/-. Such torture intensified day by day as the complainant could not pay the said amount. On 27.7.2005 at about 1.00 p.m he came to know from one person of village Sukhbazar that his daughter has died. On hearing such news, he along with his wife and other relatives went to the matrimonial house of Mallika and saw Mallika lying outside the varandah of her matrimonial house with a rope tied around her neck. She committed suicide due to the torture and instigation of the accused persons.
Sensing a foul play, a complaint was lodged.
After investigation, police submitted the charge sheet against accused persons for offence under Sections 498A/306 of IPC. 3
Learned ACJM committed the case to the Court of Ld. District and Sessions Judge, Birbhum at Suri.
On hearing of both sides, learned Judge framed charge against the accused persons under Sections 498A/306 of I.P.C. The contents of the charges were explained to the accused persons who pleaded not guilty and claimed to be tried.
In order to prove this case, the prosecution has examined as many as 14 witnesses where none was examined by the appellants. However, the accused persons were examined under Section 313 of Cr. P.C to explain the circumstances appearing against them in the evidence of the prosecution. In their reply the accused persons denied the offence and took a plea of innocence.
On trial, learned Trial Court convicted the present appellants by the impugned judgment.
Sections 498A/306 of the Indian Penal Code read as follows:-
"498A. Husband or relative of husband of a woman subjecting her to cruelty. - 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.4
" 306.- Abatement 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 lawyer of the appellants, inter alia, argued over the following contents:-
(i) The date of offence was 27.7.2005. F.I.R was lodged on 01.8.2005. The delay of 4 days in lodging the F.I.R has not been explained.
(ii) The torture for demand of dowry has not been proved.
(iii) The burden has not been discharged by the prosecution.
(iv) P.W 1 did not mention the ground of torture.
(v) In inquest report, there is no mention of torture of demand of dowry.
(vi) Principal witnesses are related witnesses.
On the other hand, learned lawyer of the State made his usual submissions by referring to the impugned judgment.
To appreciate the case from a better angle some pieces of evidence are required to be considered.
Exhibit-1 is the complaint lodged by one Dinabandhu Das. The father of the deceased, Mallika, i.e P.W-I stated that the marriage was solemnized with Bipad Taran Das of village Sukhbazar in the district of 5 Birbhu on 30.1.2005 by paying cash of Rs.20,000/-, 2 vori of gold ornaments, one bicycle and some other articles but the accused persons three months after marriage began to torture her mentally and physically after claiming of further dowry of Rs. 10,000/-. The complainant could not fulfill their demand and ultimately on 27.7.2005 the father of the deceased came to know that Mallika died in her in-laws house. He sensed that she died of torture and abatement to commit suicide.
The inquest report is Exhibit-6. There was no history that the course of death was disclosed by anybody present there. The signatories in the inquest report are Murari Mohan Das, Uttam Hazra and Tapas Das. They have not been made witnesses in this case.
Surthal report, exhibit-2 shows that on preliminary investigation it reveals from the relatives and the mother-in-law that the victim committed suicide at her in-laws place at around 9/10 a.m on 27.7.2005 on account of unpeaceful situation in her family. So, it did not reveal that over the demand of dowry she was tortured or she was abated by members of in-laws place to commit suicide.
P.W 1, the complainant echoed in his evidence what he has stated in his petition of complaint. However, in his evidence, he has stated further that Durjyodhan Das, father of Bipad Taran Das, Alpana, Bipadtaran and Biren Das compelled her to commit suicide. His cross- examination shows that he did not mention in the F.I.R that the in-laws of his daughter used to torture physically and that is why she once 6 sustained injury and as such he brought her to his residence and treated medically and sent her back to her in-laws place. His evidence shows that seven days prior to her death, his daughter and son-in-law came to his house. Further it appears that he did not lodge any complaint previously.
P.W 2 is the brother of the P.W 1. He has stated that accused persons tortured Mallika both physically and mentally for demand of further dowry of Rs. 10,000/-. In the noon of 10th Sravan he received telephonic message that Mallika was dead. He went to her in-laws place and found her dead. He stated that he found a spot mark on the right cheek of Mallika after death. In cross-examination, he stated that he had no knowledge about provocation of committing suicide.
P.W 3 simply stated that Mallika committed suicide. She could not say why Mallika committed suicide after six months of her marriage. She was declared hostile. So too P.W 4 and P.W 5.
P.W 6 is the mother of the victim suppressed the prosecution case of P.W 1. She has stated that three months after marriage accused persons tortured her physically and mentally which she heard from her daughter. She stated nothing about non-fulfillment of dower. She stated that accused persons assaulted her daughter and did not give sufficient food.
P.W 7 is the brother of the victim. He stated that occasionally his sister used to visit their house due to torture of the accused persons. He 7 further stated that after convincing her my parents used to send back to her in-laws place.
P.W 8 held the inquest report as exhibit -2. He is a police personnel. He held inquest over the dead body and found no mark of external injury on the dead body, except a mark around the neck.
P.W 9 is the Bhagnipati of P.W 1. He admitted to corroborate the prosecution case. He also stated that on getting information he came to Sukhbazar by cycle and found the dead body of the victim in the Varanda of the in-laws house and then he asked his sister, who told him that due to torture of accused persons Mallika committed suicide.
P.W 10 held post-mortem examination and opined that the cause of death was due to asphyxia, due to hanging, antemortem in nature and marked as exhibit-3.
P.W 11 filled the form of F.I.R.
P.W 12 is the I.O. A comparison of evidence of Mamoni Das, Debu Das and Sanat Das with I.O's evidence showed that these three persons were not reliable witnesses. In cross-examination, he stated that informent did not give any separate statement alleging that the accused persons demanded more Rs.10,000/- in cash towards dowry.
P.W 13 is the Executive Magistrate. He held the inquest report marked as exhibit-6.
P.W 14 is another police officer. He did part of the investigation and submitted charge sheet.
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The accused persons were examined u/s 313 I.P.C with reference to incriminating materials. Simply they denied. It is true that the victim lady died during 7 years of her marriage at her in-laws' place but only this aspect is not sufficient to fulfil the criteria for commission of offence under Section 306 of I.P.C.
The conviction is not u/s 304B of I.P.C.
Section 113A of Evidence Act, 1872 reads as follows:-
"113-A. Presumption as to abetment of suicide by a married woman. - when the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide has been abetted by her husband or by such relative of her husband. Explanation.- For the purposes of this section, "cruelty shall have the same meaning as in Section 498-A, of the Indian Penal Code (45 of 1860)."
That the victim died within a span of seven years at her in-laws place, does not automatically attract an application of Section 113A. Section 113A relates to presumption of facts. But presumption alone will not do. If the prosecution at least proves that there are materials available against the accused persons pointing that it is only they who committed the offence then presumption comes.
In the instant case, the offence is under Section 306 of the Indian Penal Code. The main ingredients of Section 306 of the Indian Penal Code is "instigation" or "incitation" or "gooding" of the victim 9 continuously by acts of gesture and behaviour to push the victim to reach the end of her teether to commit suicide finding no other way. Suicide may be for different reasons. Somebody may be sensitive or petulant. These facts do not attract Section 306. Some thing more is required in the form of instigatory or incitary statements to commit the offence. There must be continuous harassment. Careful scrutiny of the case shows that barring bald statement there is no solid corroboration of this case. The autopsy surgeon did not find any mark of injury on the dead body. Moreover, there is no other evidence previously available that the victim was tortured. This being the position, I do not think that the judgment of the Trial Court is sustainable in the eye of law. Accordingly, the sentence and the conviction are hereby set aside.
In the result, the appeal stands allowed.
The appellants are discharged from their bail bonds immediately. Let a copy of the judgment along with the L.C.Rs be sent back to the Court below at once.
Urgent Xerox certified copy of this order, if applied for, may be given to the parties.
(Toufique Uddin, J.) 10