Calcutta High Court (Appellete Side)
Sahajada &Anr vs State Of West Bengal & Ors on 9 September, 2008
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
Form No. J.(2) IN THE HIGH COURT AT CALCUTTA Criminal Appellate Jurisdiction Present :
The Hon'ble Mr. Justice Ashim Kumar Banerjee And The Hon'ble Mr. Justice Tapas Kumar Giri C.R.A No. 369 of 1987 Sahajada &Anr.
-Vs-
State of West Bengal & Ors.
For the Appellant : Ms. Anusuya Sinha
For the State : Mr. Biplab Mitra
Mr. Amajit Dey
Heard on : August 22, 2008 and September 2, 2008.
Judgment on : September 9, 2008.
ASHIM KUMAR BANERJEE.J:
On February 8, 1985 Rasida, wife of the convict Sahajada of Titagarh committed suicide. Her husband Sahajada, her brother-in-law Md.Amin (husband's elder brother), Multan Bibi, sister-in-law (Md. Amin's wife) and Mustari (daughter of Md. Amin) were charged with the offence of aiding and abetting and inducing Rasida to commit suicide. They were charged with the offence punishable under Section 306 of the Indian Penal Code. All the accused pleaded not guilty and faced trial. Both the lady accused were given benefit of doubt and they were acquitted from the charges levelled against them. The learned Judge, however, convicted Sahajada and his elder brother Md. Amin under Section 306 of the Indian Penal Code and sentenced them for rigorous imprisonment for eight years. Hence, this appeal by the appellants.
According to PW-1 the defacto complainant, he approached initially the Titagarh Police Station to lodge the complaint. He was then advised by the Titagarh Police Station to approach Barrackpur Police Station. He made statement before the Barrackpore Police Station. The Police Officer, however, did not take any step save and except recording a general diary about the unnatural death. He approached the learned Magistrate under Section 156(3) of the Code of Criminal Procedure. Pursuant to the directions of the learned Magistrate the Police initiated the case against the accused. In the process there had been delay of about two months in lodging the formal complaint.
Altogether nineteen witnesses were examined on behalf of the prosecution. The defence, however, did not adduce any evidence.
PW-1 deposed that initially Rasida was happily enjoying her marital life. She continued to enjoy as such during the life time of her father-in-law, Md. Jan. After demise of her father-in-law the other family members started assaulting her and tortured her. She was not allowed to use family privy within the house. She could not bear the torture and committed suicide. PW-1 the brother of Rasida, however, did not mention the reason for torture. He also deposed that the day prior to the incident there had been quarrel between Rasida and the accused. He also deposed that the neighbours knew about the torture and they would depose to that extent. PW- 1 never mentioned about any extortion on account of dowry or otherwise by the accused. PW-2 a newspaper seller deposed that so long Md. Jan was alive there was no trouble. However, after his death the accused persons started torturing Rasida. She gave birth of two children out of the wedlock. He denied having been related to the victim family. PW-3 was the father of victim. He deposed almost in the same line. He also did not mention about extortion. PW-4 another neighbour deposed that he had met the victim on the preceding evening when she had told her about her misery. He consoled her and pursuaded her to go back to her marital home on the assurance that he would talk to her father on that score. PW-5 another neighbour deposed that Md. Amin had been demanding Rs. 5,000.00from PW-3 to increase capital of his business. PW-6 was another brother of the victim girl. He went to the house on the preceding evening when he found that Muktar and Bilatan were physically torturing the victim whereas Md. Amin had told her to commit suicide. PW9 also deposed that he heard that the accused persons had been asking the victim to commit suicide by taking poison. PW-10 another neighbour was declared hostile. PW-11 deposed that the accused demanded Rs. 5000.00 from PW-3. PW-12 also supported the case of extortion so was PW14. PW-16 was the doctor who held postmortem, opined that the death was caused due to burn injury. PW-17 another doctor deposed that she had attended the victim when she had been brought to the hospital having 75% burn injury. The victim was conscious at that time. The victim stated that she had put fire on herself. The concerned doctor did not mention as to whether the victim had stated anything more with regard to the cause of suicide or otherwise. PW-19, Investigating Officer deposed that he had examined the witnesses, collected injury report and submitted charge sheet against the accused person. According to the concerned Police Officer, none of the witnesses mentioned about extortion to him when he had conducted the preliminary investigation and recorded statement of the witnesses under Section 161 of the Code of Criminal Procedure.
On a combined reading of the deposition and on analysis thereof it appears that the story of demand of money and/or extortion was spelt out for the first time during trial by PW-5, PW-11 and PW-12. They were all neighbours of the victim. The family members of the victim being PW-1 his elder brother of the victim and PW-3 the father did not mention about alleged demand of money. PW-14 being the mother of the victim, however, supported the case of demand of Rs. 5,000.00.The other brother Faiz being PW-6 also did not mention anything about demand. On perusal of the charge sheet we also find that no such charge was brought as against the accused. Hence, the story of extortion and/or demand of money could not be substantiated. Hence, we find that the evidence of the mother and the other three neighbours is not corroborated by the father and two brothers of the victim.
Ms.Anusuya Sinha, learned counsel appearing for the appellant contended that there was neither any ingredient to hold the accused guilty of the offence under Section 498A nor any direct evidence corroborated by the witnesses on enticing or abetting the victim to commit suicide. In support of her contention she relied on the three Apex Court decisions and two Division Bench Decisions of our court which are as follows:-
(i)Judgment Today 2000, Volume -VIII, Supreme Court, Page - 25 ( Tarun @ Gautam Mukherjee Vs. State of West Bengal )
(ii) 2003, Criminal Law Reporter, Calcutta, Page 530 (Surajmal Banthia & Anr. Vs. The State of West Bengal)
(iii) 2003, Supreme Court Cases (Criminal), Page 596 (Vimal Suresh Kamble Vs. Chaluverapinake Apal S.P. and Anr.)
(iv) 2004, Calcutta Weekly Notes, Volume - 108, Page 930 (Anil Kumar Choulia, Santosh Kumar Choulia & Parul Bala Choulia Vs. Sitesh Chandra Lahiri)
(v) 2004, Supreme Court Cases (Criminal), Page 2032 (Vijaybhai Bhanabhai Patel Vs. Navnitbhai Nathubhai Patel & Ors.) Mr. Biplab Mitra, learned counsel being assisted by Mr.Amajit Dey, learned counsel appearing for the prosecution on the other hand contended that the factum of torture was proved by the witnesses. They corroborated each and other on the issue of torture. Such torture continued till February 7, 1986 being the day preceding the unfortunate incident. The learned Judge rightly held the appellant guilty of the offence and no interference was called for on that score.
Section 498A provides that if any married woman is subjected to any cruelty by her in-laws the accused would be guilty of such offence resulting imprisonment for a period of maximum upto three years. In "Explanation" to the said section cruelty has been defined which includes any willful conduct to drive the lady to commit suicide or to harass her with a view to coercing her to meet any unlawful demand.
Section 306, inter alia, provides that if any person commits suicide the person abetting the commission of such suicide shall be punished with imprisonment for a maximum period of ten years.
In the instant case the accused were not charged with the offence under Section 498A. They were charged under Section 306. If we take the gist of the evidence as corroborated by the witnesses we would find that the victim was passing through a continued torture by her in-laws which continued upto the date preceding the unfortunate incident. If we take such evidence on the face value we would have to support the judgment of the learned Judge. We, however, feel that the alleged demand of money was not corroborated by all the witnesses. It is significant that although the neighbours supported the evidence of the mother of the victim that the in-laws were pressing her to meet the unlawful demand of Rs. 5000.00 the father of the victim as well as de facto complainant being the elder brother and PW- 6 being the other brother did not speak about such unlawful demand. Hence, it would be difficult to come to a definite conclusion that there had been a consistent demand of money. On a combined reading of the evidence it is clear that there had been quarrel between the victim on the one hand and the in-laws on the other hand. There was also evidence of torture which would however not be safe to conclude that such evidence was unimpeachable to come to a definite opinion that the in-laws abetted and/or enticed her to commit suicide.
There is one more significant fact we cannot brush aside of. PW-17 the lady doctor who attended the victim in the hospital deposed that the victim was conscious when she was brought. She stated that she had put fire on her person. She, however, did not complain as against any of the accused either with regard to torture or any unlawful demand which might have prompted her to commit suicide. The learned Judge gave benefit of doubt to the lady accused. On the basis of the available evidence we also wish to give benefit of doubt to the appellants.
Learned Judge held the appellants guilty of the offence merely relying on the evidence of demand of money which was not corroborated by all witnesses as observed by us hereinbefore. If we once again peruse the evidence of PW-1 the de facto complainant and PW-3 the father we would find that although the witnesses deposed that she was subjected to torture the motive was not clear.
We are of the opinion that on a sum total we may hold that she was subjected to torture and she could not bear such torture and committed suicide. Merely based on such surmise it would be unsafe to hold the appellants guilty of the offence as we are not clear about the motive.
The appellants are given benefit of doubt. They are acquitted from the charges brought against them under Section 306 of the Indian Penal Code.
The appeal thus succeeds and is allowed. The judgment and order under appeal is set aside. The sentence given by the court below is set aside. Sureties are discharged. The appellant is set at liberty.
Let the Lower Court records be sent down with a copy of the foregoing judgment.
TAPAS KUMAR GIRI, J:
I agree.
[ASHIM KUMAR BANERJEE,J.] [TAPAS KUMAR GIRI, J.]