Calcutta High Court (Appellete Side)
Samir Mandal & Ors vs State Of West Bengal & Ors on 12 March, 2019
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Sl. No. 5 IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION Present:
The Hon'ble Justice Joymalya Bagchi And The Hon'ble Justice Manojit Mandal C.R.A. 440 of 2013 with C.R.R. 2455 of 2013 Samir Mandal & Ors.
-Vs-
State of West Bengal & Ors.
For the Appellants : Ms. Sreyashee Biswas .. Advocate
For the State : Mr. Neguive Ahmed .. Ld. A.P.P.,
Ms. Trina Mitra .. Advocate
Heard on : 20.02.2019 & 12.03.2019
Judgment on : 12.03.2019
Joymalya Bagchi, J. :-
Report is filed on behalf of the Investigating Agency wherefrom it appears that appellant nos.1 & 5 have expired. The said report be kept with the record.
Hence, the appeal abates so far as appellant no.1 namely, Samir Mandal and appellant no.5 namely, Nanigopal Mandal are concerned.
The appeal is taken up for hearing with regard to the other appellants namely, appellant no.2, Sobha Mandal @ Sova Mondal, appellant no.3, Rakhi @ Soma Mandal and appellant no.4, Samar Mandal.
Prosecution case as alleged against the appellant nos. 2, 3 & 4 being the mother-in- law, sister-in-law and brother-in-law respectively of the victim-housewife namely, Purnima 2 Mandal is to the effect that Purnima was given in marriage to appellant no.1 namely, Samir Mandal (since deceased) five months prior to the incident. On demands from the accused persons dowry to the tune of Rs.25,000/- in cash, ornaments and furniture were given by the father of the victim-housewife namely, Sushil Mandal. When Purnima used to come to her parental home from her matrimonial home, she complained she was subjected to torture and ill-treatment by the accused persons. On the day of Jamaisasthi, the couple came to the house of Sushil Mandal, father of Purnima. The latter informed about ill- treatment to her on that day. On 15th June, 2009 at about 4:00 A.M. the father of Purnima received information from her matrimonial home that she was ill. He along with others went to her matrimonial home and found Purnima had committed suicide by hanging. Over this issue, her father Sushil Mandal (P.W. 1) lodged written complaint resulting in registration of Bhaktinagar Police Station Case No. 539 of 2009 dated 05.06.2009 under Sections 498A/306 IPC against the accused persons. In conclusion of investigation, charge-sheet was filed against the accused persons and charges were framed against them with regard to the aforesaid offences. In the course of trial, prosecution examined 11 witnesses to prove its case. The defence of the appellants was one of innocence and false implication. In conclusion of trial, the trial Judge by the judgement and order dated 30th April, 2013 convicted and sentenced the appellant nos.1 & 4 namely, Samir Mandal & Samar Mandal to suffer rigorous imprisonment for ten years and to pay fine of Rs.5,000/-, in default, to suffer further rigorous imprisonment for one year more for the offence punishable under Sections 306/34 IPC and to suffer rigorous imprisonment for three years and to pay fine of Rs.5,000/-, in default, to suffer further rigorous imprisonment for six months more for the offence punishable under Section 498A IPC and the other appellants namely, appellant no.2, Sobha Mandal @ Sova Mondal, appellant no.3, Rakhi @ Soma Mandal and appellant no., Nanigopal Mandal were directed to suffer simple imprisonment for ten years and to pay fine of Rs.5,000/- each, in default, to suffer further simple imprisonment for one year more for the offence punishable under Sections 306/34 IPC and to suffer simple imprisonment for 3 three years and to pay fine of Rs.5,000/- each, in default, to suffer further simple imprisonment for six months more for the offence punishable under Section 498A IPC and with a further direction that all the sentences shall run concurrently and 50% of the fine amount, if realised, shall be paid to Jamuna Mandal (PW3), mother of the victim-housewife. Hence, the present appeal.
During the pendency of the appeal, appellant no.1 namely, Samir Mandal and appellant no.5 namely, Nanigopal Mandal being the husband and father-in-law respectively of the victim-housewife expired. Hence, the appeal survives so far as the other appellants are concerned.
Ms. Sreyashee Biswas, learned advocate appearing for the surviving appellants submits that the evidence with regard to torture is extremely vague and non-specific. Independent witnesses namely, PW1 & 2 have not supported the allegation of torture upon the victim-housewife. Neighbours of PW6 claimed that they heard of the torture from the parents of the victim-housewife which however, is not corroborated by the latter. Hence, torture on the victim-housewife by the appellant nos.2, 3 & 4 prior to her death by hanging has not been proved. Accordingly, she prays that the appellants may be acquitted of the charges levelled against them.
On the other hand, Mr. Neguive Ahmed, learned Additional Public Prosecutor along with Ms. Trina Mitra, learned advocate, appearing for the State, argued that the evidence on record particularly of the parents of the victim-housewife namely, P.W.s 3 & 6 speak of physical and mental torture upon her which compelled her to commit suicide within six months of her marriage. No defence evidence was led to explain the circumstances in which the victim housewife committed suicide to rebut statutory presumption under Section 113A of the Evidence Act. Hence, the appeal is liable to be dismissed.
P.W. 3, Jamuna Mandal and PW6, Sushil Mandal are the parents of the victim- housewife. Both deposed at the time of marriage, Rs.25,000/- in cash, one gold ring and other valuables were gifted to the accused persons. When their daughter came from the 4 matrimonial home, she complained of physical assault by her husband and mental torture by her in-laws. In the month of Jaistha, the couple came to their house and returned to the matrimonial home. Fifteen days thereafter the victim committed suicide by hanging from a jackfruit tree. PW6 lodged the FIR (Exhibit-1).
P.W. 1, Nandita Mallick and PW2, Diptesh Naha are the neighbours at the matrimonial home of the victim-housewife. Apart from stating that the victim had committed suicide by handing within 5-6 months of her marriage, they did not disclose anything.
PW4, Sunirmal Sarkar, PW5, Nirmal Mandal & PW7, Lakhan Mandal are the neighbours of PW1.
PW5 stated that he heard from the parents of the deceased that she was not happy at her matrimonial home.
PW7 claimed that the deceased told her that she did not have good terms with her husband and in-laws.
PW11, S.I. Lalit Ch. Barman is the Investigating Officer of the case. He went to the place of occurrence, seized articles and arrested the accused persons. He collected post- mortem report from the North Bengal Medical College which was exhibited on admission of the parties (Exhibit-10).
From an analysis of the evidence on record particularly that of some sustenance in favour of P.W.s 3 & 6 although we find the allegation of physical assault by the husband on the victim-housewife, the evidence with regard to torture meted out by the in-laws of the victim are woefully vague and non-specific. P.W.3 stated that other in-laws subjected the victim-housewife to mental torture. She did not specify the nature of mental torture meted out by the in-laws. Similarly, P.W. 6 stated that the mother-in-law and other in-laws tortured the victim-housewife without specifying the manner in which the said torture was perpetrated. Even if one accepts the allegation of physical torture by the husband on the victim-housewife as stated by PW3, the vague, generic and non-specific insinuation of 5 mental torture by the other in-laws i.e. appellant nos.2, 3 & 4 do not appear to be convincing.
In view of the fact that the victim-housewife committed suicide within 5 to 6 months of marriage, Mr. Ahmed has strongly relied on the statutory presumption under Section 113A of the Evidence Act and argued that as the appellants were unable to explain the cause of death and rebut such presumption, it may be presumed that the victim committed suicide due to the torture meted out by them.
Section 113A of the Evidence Act reads as follows :-
"S.113A. 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. Explanation.- For the purposes of this section, "cruelty' shall have the same meaning as in Section 498A of the Indian Penal Code (45 of 1860)."
The aforesaid provision creates a reverse burden upon the accused in the event the housewife has committed suicide within seven years of marriage and her husband or in- laws had subjected her to cruelty. Under such circumstances, the court having regard to the other circumstances of the case may presume the husband or such in-law had abetted her suicide.
The word 'cruelty' in the aforesaid provision would have the same meaning as in Section 498A of the Indian Penal Code.
'Cruelty' in section 498A IPC is defined as follows:-
"S.498-A. ...(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 6 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."
Although the victim-housewife committed suicide within six months of marriage, in order to attract the reverse burden engrafted in section 113A, it is incumbent on the prosecution to prove that the accused being the husband or in-law of the victim-housewife had subjected her to 'cruelty' which falls within the ambit of Section 498A of the Indian Penal Code. Laconic statement that the in-laws subjected the victim-housewife to mental torture without specifying the nature and gravity of such torture and its impact on the victim as in the present case, in my considered opinion, does not satisfy this pre-requisite, that is, the in-laws had subjected the housewife to such 'cruelty' as would fall within the ambit of the expression defined in section 498A IPC and shift the onus on them to rebut the statutory presumption.
We are not concerned with the role of the appellant no.1-husband namely, Samir Mandal who subjected his wife to physical assault as the said appellant no.1 has expired and the appeal has abated so far as he is concerned.
However, in the light of the evidence on record so far as the other in-laws namely, the appellant Nos.2, 3 & 4 herein are concerned, we are convinced that the prosecution has not been able to establish that they had subjected the victim-housewife to cruelty which falls within the definition of the said expression under Section 498A of the Indian Penal Code so as to shift the onus on them in the facts of the case.
The prosecution having failed to discharge its initial burden, there is no scope to invoke Section 113A of the Evidence Act against the other in-laws and convict them as they had failed to rebut such presumption.
In the light of the aforesaid discussion, we set aside the conviction and sentence recorded against the appellant nos.2, 3 & 4.
Accordingly, the appeal succeeds in respect of the appellant nos.2, 3 & 4 herein. 7 The appellant nos.2, 3 & 4 shall be released from custody forthwith, if not wanted in any other case, upon execution of a bond to the satisfaction of the trial court which shall remain in force for a period of six months in terms of Section 437A of the Code of Criminal Procedure.
As the appellant nos.1 & 5 have expired, Rule for enhancement of their sentence stands discharged as infructuous. In view of the order of acquittal in respect of the appellant nos.2, 3 & 4, rule for enhancement of their sentence stands discharged.
The lower court records along with a copy of this judgment 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.
I agree.
(Manojit Mandal, J.) (Joymalya Bagchi, J.) akd/as&PA