Calcutta High Court (Appellete Side)
Laxman Biswas vs The State Of West Bengal on 4 October, 2018
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present :
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Ravi Krishan Kapur
C.R.A. No. 562 of 2015
Laxman Biswas
Versus
The State of West Bengal
For the Appellant : Mr. Prabir Majumder
Mr. Anarul Islam
Mr. S. Majumder
For the State : Mr. Rana Mukherjee
Ms. Sukanya Bhattacharya
Heard on : 4th October 2018
Judgment on : 4th October 2018
Joymalya Bagchi, J.:
The appeal is directed against the judgment and order dated 30.7.2015 and 31.7.2015 passed by the learned Additional District and Sessions Judge, 3rd Court, Krishnanagar, Nadia in Sessions Trial No. VIII (Ian) of 2-15 corresponding to Sessions Case No. 38 (1) of 2015 convicting the appellant for commission of offence punishable under Sections 306/498A of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for ten years and to pay fine of Rs. 5,000/- in default to suffer rigorous imprisonment for one year for commission of offence punishable under section 306 IPC and to suffer rigorous imprisonment for three years and to pay fine of Rs. 2,000/- in default to suffer rigorous imprisonment for two months more for commission of offence punishable under section 498A IPC. Both the sentences shall run concurrently Prosecution case as alleged against the appellant is to the effect that the appellant was married to the victim Swathi. It is alleged that over an illicit affair there was quarrel between the couple. Appellant ill-treated the victim and used to assault her over the illicit relation. He also used to consume liquor and assaulted the victim. As a result on 5.8.2013 the victim committed suicide. P.W 1, Bidhan Sarkar, uncle of the victim lodged complaint at Krishnaganj P.S resulting in registration of Krishnaganj P.S case no. 235/13 dated 5.8.2013 under section 306/498A IPC. In conclusion of investigation, charge sheet was filed against the appellant and the case was committed to the court of sessions and transferred to the court of Additional Sessions Judge 3rd Court, Krishnanagar, Nadia for trial and disposal. Charges were framed under section 498A and 306 IPC. The appellant pleaded not guilty and claimed to be tried.
In the course of trial, prosecution examined 11 witnesses and exhibited a number of documents. The defence of the appellant was one of innocence and false implication. In conclusion of trial, the trial judge by judgement and order dated 30.7.2015 convicted and sentenced the appellant as aforesaid.
Mr. Majumder appearing for the appellant argued that most of the prosecution witnesses have not supported the prosecution case. Even the witness, P.W. 1, in cross examination admitted that he had no relation with the parents and other relations of the victim for last 5/6 years. He could not remember the day on which the victim informed him of the torture. It is also submitted that the Investigating Officer (P.W. 11) admitted that upon enquiry he gathered nothing relating to the illicit affair of the appellant. He prayed for acquittal.
On the other hand, Mr. Rana Mukherjee, learned Additional Public Prosecutor along with Mrs. Sukanya Bhattacharya, learned advocate submitted that the victim committed suicide within six months of marriage. Evidence on record shows that the victim was subjected to torture by the appellant in an inebriated state over an illicit affair. Hence, the appeal is liable to be dismissed.
PW1, uncle of the victim, is the most vital witness in the instant case. He deposed that the victim was married to the appellant six months prior to the incident. After one month the appellant used to assault her in a drunken state. The appellant had an illicit affair with a lady of the village and as the victim protested, he used to assault her. He did not provide food to her. A lady informed him about the death of the victim. He went to the in-laws' house of the victim. He found the dead body of the victim in the hospital. He lodged FIR at the police station.
In cross-examination, he stated that he resided at Singh Nagarpara under Kotwali Police Station. It takes 1½ hours by bus to go to the house of the appellant. For the last 5-6 years he had no connection with the parents and other relations of the victim. He could not remember the date when the victim informed him about the torture by the appellant.
P.W 2, Dr. Somnath Sarkar is the post-mortem doctor. He opined that the victim died due to asphyxia following hanging by the neck which is ante-mortem and suicidal in nature. He proved the post-mortem report. (Exhibit-1).
P.W 8, Monimohon Modak is the scribe of the FIR. He proved the FIR (Exhibit-4).
P.W 9, SI, Prabir Sarkar held inquest over the dead body of the victim. He proved the inquest report (Exhibit-4). He sent the body of the victim for post- mortem examination.
P.W 11, Meghnath Mondal is the Investigating Officer in the instant case. He went to the place of occurrence. He prepared rough sketch map with index (Exhibits-7 & 7/1). He seized the rope used by the victim to hang herself. He arrested the accused person. He collected post-mortem report and submitted charge-sheet.
In cross-examination, he stated that he did not examine the parents and other relations of the victim. He could not gather anything in the course of enquiry whether the accused person had love affair with any other person.
No doubt the victim had committed suicide within six months of her marriage. It has been argued that in view of Section 113A of the Evidence Act it ought to be presumed that the appellant had abetted the commission of suicide of the victim.
Section 113A of the Evidence Act reads as follows :-
"S.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 had been abetted by her husband or by such relative of her husband."
The aforesaid provision of law creates a statutory presumption against the husband or an in-law of the deceased housewife if it is shown that the housewife committed suicide within seven years of marriage and her husband or in-laws subjected her to torture. Such presumption, however, may be drawn subject to "all other circumstances of the case".
I have analysed the evidence on record in order to test whether the twin conditions to attract the statutory presumption has been established in the attending facts and circumstances as emanating from the prosecution evidence. Apart from the evidence of PW1, no evidence was led by the prosecution to prove that the victim was subjected to cruelty by the appellant. Parents or other relatives of the victim were neither interrogated during investigation nor were examined during trial. PW1, uncle of the victim did not have direct knowledge of the cruelty upon her. The distance between his residence and the matrimonial home of the victim is considerable and it takes 1½ hours by bus to traverse the said distance. That apart, PW1 had not met the parents and other relations of the victim for the last 5-6 years and could not remember when the victim narrated the incident of torture upon her to him. This demonstrates his scant interest in the life of the victim during her lifetime. Hence, it is unsafe to rely on his evidence with regard to the cruelty allegedly meted out to the victim by the appellant over the issue of an illicit affair. That apart, the Investigating Officer (PW11) in the instant case claimed that upon enquiry he could not unravel any material showing that the appellant had illicit relation with any lady.
It is possible that the young housewife unfortunately suffered from a vague suspicion of infidelity and labouring under such misconception in a rare moment of indiscretion chose the path of self destruction. The factual matrix of the case particularly the lack of cogent and reliable evidence with regard to the cruelty upon the victim by the appellant over the issue of illicit affair or otherwise compels me to come to a conclusion that the statutory presumption under Section 113A of the Evidence Act cannot be attracted and the appellant is entitled to an order of acquittal.
Conviction and sentence of the appellant are set aside. The appeal is allowed.
The appellant shall be forthwith released from custody, if not wanted in any other case, upon executing a bond to the satisfaction of the trial court after six months from date in terms of Section 437A of the Code of Criminal Procedure.
The lower court records along with a copy of this judgement be sent down at once to the learned trial court for necessary action.
Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities.
(Joymalya Bagchi, J.) I agree.
(Ravi Krishan Kapur, J.) tkm/akd&PA