Ashok Mondal @ Asoke Mondal & Anr vs The State Of West Bengal on 23 December, 2010

[Cites 7, Cited by 2]

Calcutta High Court (Appellete Side)

Ashok Mondal @ Asoke Mondal & Anr vs The State Of West Bengal on 23 December, 2010

Bench: Ashim Kumar Banerjee

                                        1



           IN THE HIGH COURT AT CALCUTTA
                     Criminal Appellate Jurisdiction
                           Appellate Side

Present :
The Hon'ble Mr. Justice Ashim Kumar Banerjee
             And
The Hon'ble Mr. Justice Raghunath Ray


                           C.R.A. No.619 of 2007

                Ashok Mondal @ Asoke Mondal & Anr.
                               -VS-
                      The State of West Bengal

                               WITH

                           C.R.R. No.4304 of 2007

                            Tirtha De
                               -VS-
                     The State of West Bengal




For the Appellants                  :       Mr. Joymalya Bagchi
                                            Mr. Joydeep Biswas

For the Defacto Complainant         :       Mr. Sudipto Moitra
                                            Mr. Tapas Kumar Ghosh
                                            Mr. Snehasish Banerjee
                                            Mr. Tanmoy Chowdhury


For the State                       :       Ms. Jharna Biswas


Heard on : December 6 & 15, 2010
                                       2




Judgment on : December 23, 2010


ASHIM KUMAR BANERJEE.J:


1.

FACTS On or about March 20, 2006 one Tirtha Kumar Dey of village Singrapur in the district of Hooghly made a written complaint to Goghat Police Station. As per his complaint, Tirtha's daughter Shampa got married with Ashok Mondal being the Appellant no.1 above named. On March 19, 2006 Shampa committed suicide at her in-laws place. Her husband Ashok, father-in-law Santinath, mother-in-law Bimola and brother-in-law Taraknath subjected Shampa to mental torture. Complainant also asserted that his daughter had committed suicide by way of hanging due to "unbearable torture". Police acted on the said complaint, held inquest and got the dead body examined by the Autopsy Surgeon being PW-17 The Autopsy Surgeon opined, "death was due to the effects of hanging as noted above - ante mortem in nature". The Police carried out the investigation and charged Asoke, Santinath, Taraknath and Bimala inter alia under Section 498-A read with Section 306 of the Indian Penal Code.

All the three accused pleaded not guilty and opted to be tried. Initially, all of them were arrested. They were subsequently released. However, the husband Asoke was in custody during trial and was ultimately released by this Court on February 1, 2008. The learned Sessions Judge, Arambagh held Asoke and Bimala guilty of the offence committed under Section 498-A read with Section 306 of the Indian Penal Code. Asoke was sentenced for three years for the offence committed under Section 498-A and for a period of ten years in respect of the offence committed under Section 306, apart from the fines so imposed upon him. In case of Bimala, the punishment was for three years and seven years respectively, apart from the fines imposed upon her. The accused Santinath and Taraknath were acquitted of the charges. Being aggrieved and dissatisfied with the judgment and order of the Assistant Sessions Judge, Arambagh, in Sessions Trial Case No. 12 (IX)/2006 arising out of Sessions Case No. 41 of 2006 dated September 29, 2007, Asoke and Bimala preferred the instant appeal. Both of them were released on bail as referred to above. We heard the appeal on the above mentioned dates.

2. EVIDENCE 4 PW-1 (Tirtha Kumar Dey):-

The witness was a school teacher and unfortunate father of Shampa. The marriage took place on 11th Falgoon, 1411 B.S. He had to give Rs.3.2 lakhs in the marriage. It was decided that Asoke would purchase a motor cycle and gold ornaments weighing to Ten Bhories. The balance amount was to be spent by the accused for holding the marriage ceremony. The distance between two houses was about three to four miles. On March 20, 2006 the elder son-in-law (Janardan) of santi had informed over telephone that Shampa had committed suicide. Soon after marriage, the in-laws family maintained a cordial relationship with Shampa. However, after two months they started demanding "extra dowry" from Shampa. They also claimed a motor cycle from Shampa and a Cooking Gas from Tirtha. They used filthy language while abusing her. Shampa narrated the factum of torture to her mother that was later on informed to him by her (Mother). Having heard the news of torture, Tirtha discussed the matter with the family and proceeded towards the house of the accused and requested them not to do the same with Shampa. The accused became furious and started to rebuke them by using filthy languages.

After receiving the information of suicide from Janardan, Tirtha proceeded to the place of occurrence and found the dead body of Shampa lying near the 5 door of her in-law's house. The neighbours told him that on the previous night there had been loud quarrel. Radharaman Deb, a friend of Tirtha went to Goghat Police Station and submitted a written complaint as per his direction. Radharaman wrote the same and Tirtha signed it. Police held inquest of the dead body. He also identified the letter written by Shampa to her sister being Exhibit-3. He also produced History Exercise Book used by Shampa during her study. In cross-examination, he disclosed that Shampa was a post-graduate in History through Correspondence Course. The marriage was held after a one to one talk between the couple held in his place on the day of final settlement. The marriage took place after negotiation for about two years. He disclosed the History Exercise Book to prove the handwriting of the deceased appearing in her letter referred to above. After six months of marriage, Tirtha got the letter from his elder daughter through his son. Shampa was inclined to maintain her marital life. She had no intention to break the tie. He denied the suggestion that Shampa had been suffering from bronchial asthma or that she was too ill to sleep at night and as such committed suicide. He also denied the suggestion that in-laws had not tortured Shampa.

PW-2 (Sudarsan Dey) :-

The witness was a neighbour of Tirtha. He knew Shampa. The marriage was a negotiated one. Shampa died in her in-law's place. The witness did not have any personal knowledge about the cause of Shampa's death. He heard that the accused used to behave well with Shampa for about two/four months, then started torture upon her. He heard it from Tirtha. In January 2006 he saw Shampa coming to her parental home while weeping. On inquiry, he came to know from Shampa that she was subjected to torture by her-in-laws on the issue of demand of motor cycle and cooking gas. He also witnessed the inquest and identified his signature appearing on the Inquest Report. In cross-examination he, however, denied of any meeting being held between the couple prior to their marriage. After hearing the miseries of Shampa, they held a negotiation when accused persons assured them that it would not be repeated. Kartick and Chandi of Raghunandanpur village were present at the time of settlement. Tirtha's financial condition was good. He was educated. He was, however, not aware of the financial condition of in- laws of Shampa.

PW-3 (Haradhan Dey) :-

The witness belonged to Raghunandanpur village. He knew the in-laws. He knew Shampa. Shampa had a cordial relationship with her in-laws. Having 7 heard the "hue and cry" they rushed to the place of occurrence being the house of the accused. Police was informed. He put signature on blank white paper produced by Police. He identified his signature. The witness was declared hostile at this stage.

In cross-examination, he denied having told the Police that Shampa had been subjected to torture both physically and mentally. Shampa had cordial relationship with her in-laws. Shampa never stated to him that there was no meaning of her life for "respiratory disease" of her. There is one significant fact that the witness while being cross- examined by prosecution, denied that he had brought down the dead body of Shampa. In the same breath, when he was cross-examined by the accused he stated "we brought down the dead body of Shampa..........." PW-4 (Kartick Kundu) :-

Kartick was a neighbour of the accused. Upon hearing hue and cry he rushed to the house of the accused and found Shampa dead. Information was sent to her father as well as Police. Police told them to sign on a blank paper and they obliged. The witness was also declared hostile. According to him, 8 Shampa had told him that there had been no meaning of her life for sufferance of respiratory problem.

PW-5 (Subhendu Dey) :-

Subhendu was the unfortunate brother of Shampa. He corroborated his father Tirtha on the issue of payment of dowry. He also corroborated his father on the narration of the incident. He also asserted that the accused had tortured Shampa to bring money for purchase of motor cycle, cooking gas as well as construction of residential house. He also confirmed having stated to the Police about the dowry including demand for motor cycle and cooking gas. He also confirmed having driven out from the house of the accused when they had gone there to make complain of torture. He did not stay with her elder sister, however frequent her house. Keya gave the letter to him. After going through the letter he did not inform the Police Station. He also confirmed Shampa being a Post Graduate in History through Correspondence Course.

PW-6 (Madan Mondal) :-

He was a co-villager of the accused. He knew Shampa. He also confirmed Shampa having committed suicide by hanging herself in the house of her-in- laws. He also put signature on blank paper supplied by the Police. He was 9 declared hostile. He denied having been interrogated by the Police. According to him, Shampa was having cordial relationship with her-in-laws. She committed suicide as she could not bear the respiratory problem. PW-7 (Bijoli Dey) :-

The witness was the unfortunate mother of Shampa. She confirmed what her husband and son had stated. She also confirmed that there had been a demand of motor cycle and cooking gas. She also confirmed Shampa having been tortured by her-in-laws.

PW-8 (Keya Kundu) :-

Keya was the elder sister of Shampa. She confirmed and corroborated what her parents and brother had stated. She also confirmed that money was demanded on account of purchase of motor cycle, cooking gas as well as for pakka construction of their house.

PW-9 (Sudip Prokash Kundu) :-

Sudip was the husband of Keya being PW-8. He also confirmed what his in- laws and his wife had stated about the incident. He also confirmed the demand of motor cycle and cooking gas. In cross-examination, he stated that Shampa used to tell Keya about her miseries over telephone. Asoke used to 10 beat Shampa and threatened her that he would return her belongings that she had got in her marriage from her parents.

PW-10 (Swapan Dey) :-

Swapan was a neighbour of Tirtha. He heard that Shampa had hanged herself.

PW-11 (Animesh Dey) :-

Animesh was also a villager residing in Singrapur. He confirmed Shampa having been tortured severely. The accused used to rebuke her in filthy language. They used to beat her. He was a witness to the seizure. In cross- examination, he disclosed that Tirtha was his brother. PW-12 (Chandi Charan Mondal) :-

Chandi belonged to Raghunandanpur. According to him, Shampa had a cordial relationship with her-in-laws. The witness was declared hostile. He denied of telling the Police about the torture. PW-13 (Radharaman Deb) :-

The witness lodged the FIR after scribing the same. He scribed the complaint at the direction of Tirtha.

PW-14 (Mridul Kanti Biswas) :-

The witness was a Constable. He was a witness to the seizure list. PW-15 (Anil Kumar Sarkar) :-

The witness was a Constable. He brought the dead body from Raghunandanpur to Arambagh and identified the same to the Autopsy Surgeon.

PW-16 (Gandeo Prosad Shaw) :-

The witness was the Sub-Inspector. He registered the formal FIR. PW-17 (Dr. Partha Pratim Mukhapadhya) :-

The witness conducted the post mortem. According to his opinion, the death was due to the effect of hanging being ante mortem in nature. PW-18 (Dr. B.N. Kahali) :-

The witness was the Head of the Department of Forensic Medicine, Burdwan Medical College and Hospital. He confirmed that the death was suicidal. 12 PW-19 (Haradhan Chakraborty) :-

The witness was the Sub-Divisional Officer. He held the inquest of the dead body.

PW-20 (Dr. Tapash Bag) :-

The witness was the Medical Officer who referred the dead body for Post mortem Examination. He identified his signature in the forwarding letter appearing therein.

PW-21 (Debasish Dey) :-

He was the hand writing expert in C.I.D., West Bengal. He examined writing of Shampa appearing in her letter and compared it with her History Exercise Book.

PW-22 (Sudip Rudra) :-

The witness was the Investigating Officer. He narrated in details how the investigation took place. According to him, Kartick (PW-4), Haradhan (PW-

19), Sudarshan (PW-2), Subhendu (PW-5), Madan (PW-6) made statement before him under Section 161 and thereby contradicted the hostile witnesses.

3. EXAMINATION OF THE ACCUSED 13 Asoke Asoke denied payment of dowry to the extent of Rs. 3.2 lakhs. He however admitted having received 10 Bhories of gold. He was silent about motor cycle even when he was put specifically the evidence of PW-1 on the issue of motor cycle.

He denied the torture. According to him, he was not at home on the day prior to her death. He also denied having any knowledge of the letter. He did not have any knowledge of the quarreling on the previous night. He heard that Shampa had been suffering from breathing trouble and every one had talked about it. He denied of any "bad relation" Shampa had with him or his family members.

Bimala Bimala denied receipt of any money. She denied all the allegations brought against her.

Neither Asoke nor Bimala disclosed as to why and how she had committed suicide.

4. DEFENCE WITNESS DW-1 (Dr. Asish Chakrobarty) :-

The witness examined Shampa with the complain of breathlessness, sticky throat and cough. He prescribed some medicine. He was also not sure whether the patient had bronchial asthma as it would need recurrent attacks. He also confirmed that there was no possibility of psychiatric problem due to prolonged asthmatic disease. According to him, there might be depression developing suicidal tendency. He was, however, not sure about the future development. In cross-examination, he confirmed that he did not see any asthmatic problem.

DW-2 (Dr. Lakshmi Kanta Ghosh) :-

He also examined Shampa and advised some medicine. She was suffering from cough, cold and broncho spasm. The patient did not come back to him for the second time. He also confirmed in cross-examination that there was no note in his prescription that Shampa had depression. The respiratory problem might be caused due to respiratory trachea infection. DW-3 (Alpana Dey ) :-

Her house was within two minutes from the house of the accused. She then said, it was within two minutes walking distance. Shampa was her classmate 15 in school. The accused had a cordial relationship with Shampa. Asoke never assaulted or abused Shampa. She was on visiting terms. In cross- examination, she disclosed that she had intimacy with the accused and wished their welfare. She did not warn the accused before Shampa's marriage on the ground of her alleged disease.

5. JUDGMENT Analysing the evidence, the learned Judge ultimately came to conclusion that there was no sufficient material to implicate Shanti and Tarak and as such acquitted them from all the charges. The learned Judge however found Asoke and Bimola being guilty of the offence and convicted them accordingly.

6. CONTENTION OF THE APPELLANT Mr. Joymalya Bagchi, learned counsel appearing for the appellant being ably assisted by Shri Joydeep Biswas, learned advocate for the appellant contended as follows :-

i) The evidence did not convincingly prove the element of dowry. Hence, Section 498-A did not have any implication.

ii) The FIR and/or the written complaint did not disclose any element of dowry.

iii) No subsequent demand could be proved attracting mischief of Section 498-A of the Indian Penal Code or Section 113-A of the Evidence Act.

iv) Taking into account the evidence that came up during trial being sacrosanct, it would at best be termed as a discord between the couple and the in-laws because of difference in financial status between the two families.

v) Even if the letter were taken to be sacrosanct it would only disclose the element of discord and would not support the case of dowry demand.

Elaborating his contention, Mr. Bagchi contended that the financial status of both the families was so different that the discord was a natural consequence. More over the victim family was educated compared to the accused and their perceptions deferred. Mr. Bagchi in his usual fairness, did not raise the issue of alleged bronchinal problem of Shampa being responsible for her suicide. Possibly he was not convinced on that score. Mr. Bagchi however contended that the accused were having a mud built house. They might have taken some 17 financial help to construct a toilet on the upper floor for their daughter-in- law, that would not amount to dowry. According to Mr. Bagchi, "torture" did not have support from the neighbours as all the neighbours were declared hostile.

On the issue of suicide, Mr. Bagchi contended that the evidence did not disclose any instigation from any of the accused that would lead her to take decision to commit suicide. In absence of such evidence there was no scope for convicting the accused under Section 306.

In support of his contentions Mr. Bagchi relied on the following decisions :-

i) Journal Today 2009 Volume-VIII Supreme Court Page-617 (Shakson Belthissor -VS- State of Kerala and Another)

ii) 2009 Volume-I Supreme Today Page-491 (Kishangiri Mangalgiri Goswami -VS- State of Gujarat)

iii) 2009 Volume-VII Supreme Today Page-289 (Amelandu Pal @ Jhantu -VS- State of West Bengal) 18 CONTENTION OF THE DEFACTO COMPLAINANT Appearing for the defacto complainant Mr. Sudipto Moitra, learned counsel contended as follows :-

i) No suggestion was given to the prosecution witnesses with regard to dowry. Hence, the evidence so laid by them should be taken as admitted.

ii) The letter disclosed by the prosecution written by the victim was having a closed proximity compared to the date when the victim had committed suicide. Hence, the presumption as contemplated under Section 113-A of the Evidence Act would apply.

iii) The prosecution witnesses corroborated each other on the issue of dowry and torture. Hence the accused were liable to be convicted for such offence and the learned Judge should not have acquitted the father and the younger son being Shanti Nath and Tarak Nath.

Mr. Moitra prayed for dismissal of the appeal and allowing his application for revision which he made for quashing of the acquittal in respect of Shanti Nath and Tarak Nath.

In support of his contention Mr. Moitra relied on the following decisions :-

i) 2005 Volume-XII Supreme Court Cases Page-104 (Devinder Singh and Others -VS- State of Punjab)

ii) 2007 Volume-XV Supreme Court Cases Page-415 (Raja Lal Singh -VS- State of Jharkhand)

iii) 2009 Volume-XI Supreme Court Cases Page-157 (Deen Dayal And Others -VS- State of Uttar Pradesh) Ms. Jharna Biswas learned counsel for the appearing for the State while opposing the appeal, however contended that on the basis of the Post mortem Report of PW-17 being the Autopsy Surgeon the learned Judge should have held all the four accused guilty of the offence under Section 304-B and not under Section 306 which is a lighter provision. According to her, the evidence so came out during trial was sufficient to implicate all the four accused to book them under Section 304-B. In this regard, he relied on internal page 49 and 52 of the judgment being page 175 and 178 of the Paper Book respectively. She contended that this Court being Court of appeal was entitled to invoke the provision of Section 221 of the Criminal Procedure Code which the learned Judge erred in not applying and modifying the conviction and sentence accordingly.

In this regard, to support her contention, Ms. Biswas cited the following decisions :-

i) All India Reporter 1958 Supreme Court Page-56 (Ramaswamy Nadar -VS- The State of Madras)

ii) 2005 Volume-XII Supreme Court Cases Page-104 (Devinder Singh and Others -VS- State of Punjab)

7. OUR VIEW We have carefully examined the evidence as also the letter that has got a significant role in having an adjudication of the present controversy. If we take the relative witnesses we would find that a consistent case of dowry was convincingly made. No significant anomaly or inconsistency was found therein. We also agree with Mr. Moitra that no specific suggestion was given by the accused to those witnesses on the issue of dowry. Asoke, during his examination under Section 313, admitted having received ten Bhories of gold. He kept himself silent about the motor cycle. On a sum total we are convinced that there had been a payment of dowry. Let us now come to the letter. We have to keep it in mind that the letter was written by Shampa to 21 her own sister Keya who must be knowing about payment of dowry, if any, made. Hence, it was not unusual that the letter would not have any mention of dowry. The element of motor cycle was however present in the letter. The letter was proved through the hand writing expert. Mr. Bagchi, in his usual fairness also did not seriously raise any dispute with regard to its authenticity.

Let us now closely examine the issue of motor cycle from the version of the victim appearing in the letter.

The victim stated that the Bimala's relative had enquired of her why she had not visited their house. Shampa expressed her inability, as she could not travel by bicycle. Bimala retorted and stated that she should ask her father to give a motor cycle. Shampa however did not say anything in presence of an outsider. Subsequently, during altercation between Bimala and Shampa, Shampa told that why they did not purchase motor cycle as her father had already paid money for the same. Bimala then twisted such statement and misrepresented the same to Asoke and the other accused and Asoke physically assaulted her on the issue. From a sum total of the above discussion we are unable to agree with Mr. Bagchi that the above statement 22 did not refer to any dowry. In this regard, we may refer to Section 2 of the Dowry Prohibition Act, 1961 wherein it was categorically provided that the dowry would mean any property or valuable security given or agreed to be given either directly or indirectly by one party to the other in the marriage at or before or any time after the marriage. We are of the view that the provisions of Section 2 squarely cover the issue. In the case of Amalendu Pal (Supra), the husband developed an extra marital relationship, that was the cause of discord between the couple. Particularly when the wife objected to such illicit relationship the husband then started committing torture both physically and mentally. Considering such situation, the Apex Court was of the view that merely on the allegation of harassment without any positive action proximate to the time of occurrence on the part of the accused which led and compelled the person to commit suicide, conviction under Section 306 was not sustainable. While discussing the issue under Section 498-A, the Apex Court referred to an earlier decision of the Apex Court and observed that in order to justify conviction under the provision of Section 498-A there must be available on record some material and cogent evidence. In the case of Shakson Belthissor (Supra) the Apex Court observed that when no allegation was made in the FIR regarding the issue of cruelty Explanation (a) of Section 498-A would not be attracted.

In the case of Kishangiri Mangalgiri Goswami (Supra), the Apex Court again reiterated its earlier stand. In the case of State of West Bengal -VS- Orilal Jaiswal and Another reported in All India Reporter 1994 Supreme Court Page-1418 the Apex Court observed that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence so came out in trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end her life by committing suicide.

If we take the views of the Apex Court so discussed above and examine the relevant provisions of law we would find that to implicate one and convict him under Section 498-A read with Section 306 the Court must come to a final conclusion :-

i) There was element of dowry involved in the marriage.

ii) The victim was subjected to torture on account of dowry.

iii) The incident occurred within seven years of marriage to come within the purview of Section 113-A. 24

iv) Such torture either mentally or physically led the victim to take a decision to end her life by committing suicide.

On analysis of the evidence, we would find that there was element of dowry involved in the marriage. Demand of dowry in the form of cash or kind was very much present either at the time or after the marriage. We also find that the victim was subjected to torture. Hence, Section 498-A squarely attracted. The learned Judge however was of the view that there was no definite evidence as against the father-in-law and brother-in-law and in our view, very rightly acquitted them of the charges. On that score, we are unable to accede to the prayer of Mr. Moitra allowing his application for revision. We are however ad idem with the learned Judge when he convicts Asoke and Bimala under the provisions of Section 498-A. We affirm his decision on that score. Let us now come to the issue of Section 306. We fully agree with Mr. Bagchi that mere fact that one was accused of Section 498-A would not conclusively suggest that there was instigation on the part of the accused or that the torture would automatically attract the mischief of Section 306. The Court must come to a conclusion that torture was such that it drove the victim to a blind lane from where she could not come out except ending her life by 25 committing suicide. In this regard, we find support from the decision in the case of Amalendu Pal (Supra) cited by Mr. Bagchi.

There was one more element to be considered in this regard being the applicability of Section 113-A of the Indian Evidence Act. Section 306 was a general provision implicating any person aiding and abetting the victim to commit suicide. Section 113-A makes the task of the Court easier while dealing with a case of unnatural death of a bride within seven years and the accused being faced with a charge under Section 306 to end her life by committing suicide. Section 113-A inter alia provides that commission of suicide of married woman within seven years of her marriage would be presumed by the Court to the extent that her in-laws including her husband were responsible for aiding and abetting her to commit suicide provided she was subjected to cruelty by her in-laws. To be precise :-

i)     The victim was a married woman.

ii)    She committed suicide within seven years of her marriage.

iii)   Her in-laws subjected her to cruelty.
                                         26

The Explanation to the provision denotes that "cruelty" would mean "cruelty" as defined under Section 498-A. 498-A denotes two situations -

i) Any willful conduct that is of such nature as is likely to drive woman to commit suicide or to cause grave injury or danger to her life.

ii) Harassment of the woman with a view to coerce her or her relatives to meet any unlawful demand. In the instant case, the demand was there. Non-fulfilment of demand did attract torture upon the victim. She committed suicide within few months of her marriage. Hence, the presumption as to aiding and abetting as defined under Section 306 would definitely come subject to the fact that cruelty was such that it drove her to the blind lane as discussed above.

There was one more element which need to be discussed herein that the torture so inflicted upon the victim was "soon after her death" as observed by the Apex Court in the case of Deen Dayal & Ors (Supra) and Raja Lal Singh (Supra). In these two decisions the Apex Court also observed that the torture must be a contemporary one. A stale incident would not be sufficient to have the presumption under Section 113-A to implicate the in-laws under Section

306. 27 We have examined the evidence. We do not find that the decree of torture was such that would lead a prudent woman to end her life. It is unfortunate that a youngster being quite educated would end her life in her prime age. We are not at all convinced that she ended her life being seriously ill or being unable to bear the sufferings of the disease as sought to be brought by the defence during trial. However, such issue was not, at all, canvassed before us. On a close reading of the letter coupled with the evidence so came out in the trial we are convinced that she ended her life because of the torture committed upon her. We, however, feel that she was too hyper sensitive. It was true that she was subjected to torture. It was also true that such torture was related to dowry. The prime issue was that she could not cope up with her in-laws or rather her in-laws could not accept her in totality which led her to take such unfortunate incident. At the same time, it would not be wise for us to implicate her husband or mother-in-law being responsible for the crime committed under Section 306. Marriage in our society is a result of a happy bonding between the couple. The couple is expected to lead their normal life with their children being born out of the said wedlock. It is unfortunate that there would be any material transaction 28 being dependent upon for such relation. However, the reality is that it happens and it happens every day in our life. This social evil has not been eradicated from our society. Here is a couple who comes from their respective families having different outlook, financial status and perception. We fully agree with Mr. Bagchi when he says that two families were poles apart on either score, be it financial, be it educational, be it perceptive, be it otherwise. They were totally a mis-match. We are unable to accept the view of the learned Judge that as because they were guilty under Section 498-A they would automatically come within the mischief of Section 113-A and would become automatically responsible for the crime committed under Section 306. Here we disagree with the learned Judge. Ms. Biswas, appearing for the prosecution, however, takes us to a different path. According to her, it was a homicide. We are unable to accept. It is true that PW-17 being the Autopsy Surgeon was not sure about the cause of the death. It was referred to an expert being PW-18 who opined that it was a case of suicide. Nothing came out in evidence that the victim was murdered, rather the cause of suicide was so supported by her relatives during trial. Ms. Biswas relied on the Apex Court decision on the issue of conversion of the conviction and sentence under Section 221. On our request, both Mr. Bagchi 29 and Mr. Moitra assisted us by citing Apex Court decisions on the issue which are as follows :-

i) 2000 Supreme Court Cases (Criminal) Page-935 (Kans Raj -

VS- State of Punjab and Others)

ii) 2001 Supreme Court Cases (Criminal) Page-1148 (Arvind Singh -VS- State of Bihar)

iii) 2001 Volume-II Supreme Court Cases Page-577 (Shamnsaheb M. Multtani -VS- State of Karnataka)

iv) 2003 Volume-I Supreme Court Cases Page-217 (K. Prema S. Rao & Another -VS- Yadla Srinivasa Rao and Others)

v) 2004 Supreme Court Cases (Criminal) Page-1417 (Kaliaperumal and Another -VS- State of Tamil Nadu)

vi) 2004 Volume-II Crimes Page-471 (Supreme Court) (Dalbir Singh -VS- State of Uttar Pradesh)

vii) 2005 Volume-XII Supreme Court Cases Page-104 (Devinder Singh and Others -VS- State of Punjab)

viii) 2007 Volume-XV Supreme Court Cases Page-415 (Raja Lal Singh -VS- The State of Jharkhand) 30

ix) 2008 Volume-I Supreme Court Cases (Criminal) Page-72 (Anil Alias Raju Namdev Patil -VS- Administration of Daman & Die, Daman & Another

x) 2009 Volume-I Supreme To Day Page-491 (Kishangiri Mangalgiri Goswami -VS- State of Gujarat) We, however, feel it redundant to discuss the issue in the present context as we are convinced that it was a case of suicide and suicide only. We, thus, leave the issue open to be decided in an appropriate case.

8. RESULT The appeal, thus, succeeds in part.

The revisional application being CRR No.4304 of 2007 fails and is hereby dismissed.

The conviction of Asoke and Bimala under Section 498-A is upheld. Their respective sentences so imposed by the learned Judge under Section 498-A are affirmed.

The accused Asoke and Bimala are acquitted of the charge brought under Section 306 of the Indian Penal Code. Their conviction and sentence so imposed by the learned Judge under Section 306 of the Indian Penal Code are hereby quashed.

9. DIRECTION :-

Let a modified jail warrant be issued by the Court below. The accused are directed to surrender before the Court below for sufferance of their remainder part of the sentence. In default, the sureties are directed to produce them in Court for sufferance of the remainder part of the sentence.

In case the accused do not surrender and the sureties do not produce them in Court, the Court below would to take appropriate steps for issuance of the Warrant of Arrest and/or proclamation and take steps in accordance with law in that regard.

Appeal is disposed of accordingly.

Let a copy of this judgment along with Lower Court Records be sent down at once.

Urgent xerox certified copy will be given to the parties, if applied for. Raghunath Ray, J:

I agree.

[ASHIM KUMAR BANERJEE,J.] [RAGHUNATH RAY,J.]

Unlock Advanced Research with PRISMAI

Calcutta High Court (Appellete Side)