Full Judgment Text
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CASE NO.:
Appeal (crl.) 743 of 2007
PETITIONER:
Ananda Mohan Sen & Anr
RESPONDENT:
State of West Bengal
DATE OF JUDGMENT: 16/05/2007
BENCH:
S.B. Sinha & Markandey Katju
JUDGMENT:
J U D G M E N T
CRIMINAL APPEAL NO. 743 OF 2007
[Arising out of S.L.P. (Crl.) No. 5950 of 2006]
S.B. SINHA, J:
1. Leave granted.
INTRODUCTION
2. Appellants are before us being aggrieved by and dissatisfied with the
judgment of conviction and sentence dated 10.04.2006 passed by a Division
Bench of the Calcutta High Court in Criminal Appeal No. 351 of 2003,
affirming a judgment of conviction and sentence passed by the learned
Assistant Sessions Judge, Burdwan in Sessions Case No. 218 of 1995 under
Sections 498A and 306 of the Indian Penal Code (for short, ’IPC’). The
High Court, however, modified the sentence in respect of charge under
Section 306 IPC, reducing it from five years to three years, so far as the first
Appellant is concerned.
PROSECUTION CASE:
3. The prosecution case is as under :
Deceased Bakulbala was married to Appellant No.2 (Gouranga
Mohan) in the year 1991. On 03.02.1994 at about 07.30 a.m. she was found
dead at the verandah of her matrimonial home. Immediately after the
occurrence, all the inmates of the house including the appellants fled away
from the house. It was locked. PW-1, Shyam Sundar Dey, father of the
deceased received information about the death of his daughter. He having
reached the place of occurrence found the dead body of his daughter lying.
A First Information Report was lodged on the same day at about 2105 hrs.
before the officer in charge of Khandaghosh Police Station, alleging
physical and mental torture upon her by all the accused. PW-1 opined that
the deceased committed suicide being unable to bear such torture.
4. The officer in charge of the police station upon receipt of the said
First Information Report arrived at the place of occurrence at about 10.30
p.m. The inquest report of the dead body, however, was conducted on the
next day, which, inter alia, reads as under :
"On primary investigation it was found that the
deceased was given in marriage to Shri Gounrana Mohan
Sen, the eldest son of Sri Ananda Mohan Sen of village
Dubrajpur on 21st Magh 1397. Since after her marriage
husband, father-in-law, mother-in-law, brother-in-law,
Kartick Sen \026 all combined used to commit various
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physical and mental torture on her in connection with
household duties. Yesterday dated 03.02.1994 at about 7
a.m. husband, father-in-law, mother-in-law andbrother-in-
law Kartick abused her again in connection with household
duties and asked deceased Bakul "can you not die by
taking poison? Go out of the house". Being mentally
shocked she took poison named "sumidon" and as a result
she died at 7.30 a.m. Many persons know about the
physical and mental torture committed to her.
For ascertaining the real cause of death the dead
body is sent to FSM Medical College, Burdawan through
Shankar Das Bairagya, Constable."
EVIDENCE BEFORE THE COURT
5. The post-mortem examination was conducted at about 1230 hrs. on
04.02.1994. Dr. S. Chakraborty (PW-11), the autopsy surgeon, reserved his
opinion in regard to the cause of the death pending chemical examiner’s
report. The condition of the heart and contents of the stomach, however,
were noticed therein as under:
"
Heart
All the chamber full of blood
and its clots to pinpoint
haemorrhage on its surface.
Stomach and its contents
Non-congested contains 250 ml.
of whitish violate fluid with a
smell like that of kerosene.
"
6. The statements of Smt. Kanan Bala Dey (PW-5), mother of the
deceased, Haradhan Halder (PW-8), a neighbour and relative of PW-1 and
Himadri Sekhar Dey (PW-10), brother of the deceased, were recorded under
Section 161 of the Code of Criminal Procedure. The statements of Smt.
Madhavi Halder (PW-6) and Smt. Bithika Paul (PW-9), aunt and friend
respectively of the deceased were recorded on 12.02.1994. Investigation
was carried out in a slip-shod manner. Viscera was also sent for chemical
examination only on 14.03.1994. It is difficult to appreciate that the
investigating officer took such a long time in sending the article for chemical
examination after such a long time.
7. Before the learned Trial Judge, 13 witnesses were examined on behalf
of the prosecution. Out of the said witnesses, Shib Shankar Ghosh (PW-2)
and Biswanath Mallick (PW-3), who were the residents of the same village
as that of the accused, were declared hostile. Another co-villager of the
appellants, Bhutnath Pal (PW-4) was only tendered for cross-examination.
The investigation was carried out principally by Sub Inspector S.D. Saha
(PW-12). Charge-sheet, however, was submitted by another Investigating
Officer, namely, Sub Inspector M.M. Das (PW-13). Dr. S. Charaborty, who
conducted the post-mortem examination examined himself as PW-11.
8. Appellants herein along with Smt. Shakti Sundari Sen, mother-in-law
of the deceased and Nityananda Sen (brother-in-law of the deceased) were
charged for commission of the offence punishable under Sections 498A and
306 IPC. Smt. Shakti Sundari Sen died on 14.10.1998. Examination of the
witnesses before the learned Trial Judge also took a long time i.e. between
09.07.2001 and 06.06.2003. The learned Trial Judge found the appellants
guilty of commission of the said offences and sentenced Appellant No. 1 to
undergo simple imprisonment for 2 years under Section 498A IPC and to
pay a fine of Rs. 1000/-; and to undergo simple imprisonment for 5 years
under Section 306 IPC and to pay a fine of Rs. 2,000/-, in default of payment
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of fine to undergo simple imprisonment for one and two months under
Sections 498A and 306 IPC respectively; and sentenced Appellant No. 2 to
undergo simple imprisonment for 2 years under Section 498A and to pay a
fine of Rs.1,000/- and to undergo simple imprisonment for 8 years under
Section 306 IPC and to pay a fine of Rs.2,000/-, in default of payment of
fines to undergo simple imprisonment for one and two months under
Sections 498A and 306 IPC respectively.
9. Appeal preferred by the appellants herein was dismissed by the High
Court by its impugned judgment dated 10.04.2006.
10. It is stated that Nityananda one of the convicted persons committed
suicide 11.04.2006.
SUBMISSIONS
11. Mr. Pradip K. Ghosh, learned Senior Counsel appearing on behalf of
the appellants, in support of the appeal, submitted that the High Court
committed a serious error in passing the impugned judgment of the
conviction and sentence insofar it failed to take into consideration that
essentially it was a typical case of a dispute between the mother-in-law and
the daughter-in-law. Gouranga (Appellant No.2 herein) was not residing at
the village and in that view of the matter his presence immediately before
the occurrence has not been proved. Involvement of Ananda Mohan Sen,
Appellant No.1, (father-in-law), the learned counsel Senior Counsel
contended, is also not beyond reasonable doubt. In any event, it was not a
case where the ingredients of Section 306 IPC can be said to have been
proved and for arriving at the said conclusion, it was obligatory on the part
of the High Court to conclusively arrive at a finding that the deceased had
committed suicide. A serious error has been committed by the High Court
insofar as it had arrived at certain contradictory or inconsistent findings
which have vitiated the reasonings for recording a judgment of conviction,
namely :
(i) No poison was detected in the viscera;
(ii) There was a long time gap between sending viscera and
examination;
(iii) A judicial notice can be taken of the fact that such long gap
between sending of the viscera and the examination thereof would
cause the poison to be degraded and decomposed, for which no
authority has been noticed.
(iv) The High Court committed an error in opining :
"Sitting in Appeal we are not supposed to count the errors
and take stock of the mistakes. It would serve no purpose and
it would be more appropriate to find out the remedy rather
than to address us with the disease.
xxx xxx xxx
Reticence on the part of the court, in our view, has not
helped the matter at all. As observed by us earlier, in a first
appeal we would not be correct to simply locate the fault lines
and keep quiet, but it would be expected of us to salvage the
ruins from the debris of a wanting situation and restore it to its
pristine value for giving a wholesome effect to the Criminal
Justice System.
After all we have to achieve the truth and merely like a bad
workman not find fault with the tools of the decision making
process."
12. A death whether homicidal or suicidal or accidental in nature would
be determinative of the nature of offence and, thus, the High Court was not
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correct in relying upon the decision of this Court in Taiyab Khan and Others
v. State of Bihar (Now Jharkahnd) [(2005) 13 SCC 455] in arriving at the
conclusion that the result of the viscera examination would make no
difference to the fate of the case, as an offence under Section 304B IPC was
involved.
13. Section 113A of the Indian Evidence Act, 1872 will have no
application inasmuch as in order to invoke presumption arising thereunder, it
must be established as an issue of fact that the deceased had committed
suicide.
14. A distinction must also be borne in mind between the ingredients of
offences under Section 306 IPC and 304B thereof.
15. There is no evidence to suggest, as was alleged by PW-1, that
Bakulbala had been killed.
16. In absence of any evidence by the medical expert that the death was
homicidal, suicidal or accidental in nature, the conclusion of the High Court
that she had committed suicide was not proved.
17. In any view of the matter, there is nothing to show that the appellants
herein had incurred joint liability. Section 113A of the Evidence Act in the
facts and circumstances of the case would not be attracted so far as husband
of the deceased is concerned, as there is nothing to show that he had any
role to play in regard to the alleged physical or mental torture of the
deceased. The evidence of PW-5 to the effect that he used to assault
Bakulbala cannot be believed, as no such statement has been made under
Section 161 of the Code of Criminal Procedure.
18. Similarly, statement made by PW-10 to the said effect cannot be
believed. The High Court furthermore failed to notice the letters wherein it
was stated : "Your son-in-law loves me and that is a big relief". "Your
son-in-law lovingly states that he would be relieved", "There is no trouble
from the side of your son-in-law" and Gauranga used to stay at Burdwan on
week days and used to return on week ends.
19. So far as Ananda Mohan Sen (Appellant No. 1 herein) is concerned,
even the High Court has observed that his role was diminutive. No specific
instance of any act of cruelty has been mentioned by any of the witnesses
against him. As a matter of fact he had all along been asking her to stay at
Burdwan with her husband, which contradicts any cruelty on his part.
20. There is no direct or circumstantial evidence in regard to any act of
cruelty or torture between 02.06.1993 and 03.02.1994 when she died i.e.
after the purported talk of settlement was made.
21. Mr. Avijit Bhattacharjee, learned counsel appearing on behalf of the
State, on the other hand, would refer to the judgment of the High Court,
which according to him, dealt with all the evidences both oral and
documentary at great details.
ANALYSIS OF THE EVIDENCE
22. The fact that death of Bakulbala took place within seven years of
marriage is not in dispute. The deceased was lovingly called as ’Mamoni’.
According to PW-1, she used to complain about her ill-treatment by her
husband, parents-in-law and brother-in-law. According to the said witness
they used to abuse and assault the deceased. He had deposed that his son
Himadri had gone to the house of Bakulbala on 15th Falgoon, 1399 i.e. 7-8
months prior to her death. Both of them were driven out whereafter only he
went to his daughter’s house for settlement. A settlement was arrived at
whereafter she was taken to her matrimonial home. Despite the same, the
assault and abuse on her continued.
23. We may not deal with the evidences of PWs 2 to 4. As noticed
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hereinbefore, PWs 2 and 3 were declared hostile and PW-4 was tendered on
cross-examination. PW-5 was the mother of the deceased. She was also
categorical in her statement in regard to ill-treatment meted out to her
daughter. She categorically stated that she was assaulted by the parents-in-
law and brother-in-law of the deceased and she had been driven out together
with her son on 16th Falgoon. Even after settlement her daughter was
severely assaulted. On the fateful day, the accused persons assaulted and
killed her by pouring poison in her mouth and left the house under lock and
key. PW-6, Smt. Madhavi Halder, is the paternal aunt of the deceased. She
found marks of injuries on the dead body of Bakulbala. She expected the
dispute would be settled after she gave birth to a child. Jagat Kumar Das
(PW-7) is an independent person. Settlement preceded the dispute. The
dispute arose because of torture. He is a witness to the settlement. PW-8,
Harddhan Halder, a resident of Baidyapur village also supported the
prosecution case. Smt. Biuthika Paul, who examined herself as PW-9 was a
close friend of Bakulbala. This witness in no uncertain terms stated that the
deceased used to complain about the ill-treatment meted out to her in her in-
laws house and it would have been better if she had not been married and
continued her studies. The deceased had stated before her that she had been
abused and assaulted even for minor and insignificant mattes. She was made
to do domestic works like a maid servant and even she had been denied
proper meal. According to this witness, the brother-in-law of Bakulbala
asked her sleep with him when her husband was out the house; but on her
reporting thereabout she was assaulted by her husband.
24. PW-10 is the younger brother of Bakulbala. He was the witness to the
incident of 16th Falgoon, when he and Bakulbala were assaulted and driven
out from the house.
FINDINGS
25. The learned Trial Judge in arriving at the conclusion had , inter alia,
taken note of the fact that despite the deceased suffering from the skin
disease, she had never been taken to the doctor, nor any paper was filed as to
whether any treatment was given. It may be that there are certain
contradictions and omissions but in a case of this nature the conclusion must
be drawn from the totality of the circumstances. Bakulbala admittedly died
an unnatural death. The prosecution evidences brought on records clearly
suggest that she had been subjected to cruelty both physical and mental.
Existence of discord between the parties in regard to torture at least at one
point of time is not in dispute. She had been driven out of her house. She
had to come back to her parents house again and again. Her husband did not
even make any enquiry about her, when she was staying with her parents. A
settlement had been arrived at wherfor intervention of the members of the
panchayat had been sought for. Only upon the said settlement, the deceased
came back to her matrimonial home. Unnatural death of the deceased, in our
opinion, must be considered from that point of view.
26. Submission of Mr. Ghosh that the dispute between mother-in-law and
daughter-in-law is an usual thing and other members of the family were not
involved, does not appear to be correct. She made allegations against all the
family members. There is absolutely no reason if allegations against all the
family members had not been made, why a settlement had to be arrived at.
Evidence of PW-9, a close friend of the deceased, in this regard is
significant. Naturally, a married girl would confide with a close friend or
mother. A mother, on the other hand, may not bring everything to the notice
of her husband on the belief that the things will improve.
27. Indian Penal Code was amended by Criminal Law Amendment Act
1983 with a view to deal with menace of dowry deaths. Explanation
appended to Section 498A defines cruelty in three parts. Clause (a) of the
said explanation itself is in two parts. One is any wilful conduct which is of
such a nature as is likely to drive the woman to commit suicide and the
second part is to cause grave injury or danger to life, limb or health
(whether mental or physical) of the woman. It may be that death by itself
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may not lead to an inference that cruelty was meted out to the deceased, but
in this case there are specific allegations. The witnesses proved the same.
Ex.3-C, whereupon reliance has been placed by Mr. Ghosh, although no
allegation had been made against her husband, the deceased categorically
stated the type of torture which was being meted out to her. In Ex. 3,
however, she categorically stated that even the garments which had been
presented by her parents were not liked by her husband and she had been
abused and insulted by her husband. In some of the letters, it appears that
she expressed her vent that she had thought of committing suicide but then
consoled her mother that she would not do so. The contents of those letters
had not been denied or disputed. Even in one of the letters Ex. A-1, she
made allegations against her in laws during her stay at matrimonial home.
Her mental condition during the stay at her matrimonial home can be well-
imagined. For establishing a charge of cruelty, it is not necessary that the
husband must always stay in the matrimonial home. Systematic torture of
the deceased is evident in this case. We do not find any reason to differ
from the findings of the learned Trial Judge or the High Court.
28. The question which now arises for consideration is as to whether a
case for conviction under Section 306 IP has been made out. It is no doubt
true that for arriving at such a conclusion, the prosecution must , inter alia,
establish that the deceased committed suicide and she had been subject to
cruelty within the meaning of Section 498A IPC. [See Harjit Singh v. State
of Punjab [(2006) 1 SCC 463].
29. It may also be true that for the aforementioned purpose a degree of
certainty has to be arrived at, as was held in Wazir Chand and Anr. etc. v.
State of Haryana etc. [(1989) 1 SCC 244].
30. The fact that the deceased had died an unnatural death is not in
dispute. It is nobody’s case that her death was an accidental one. In the
First Information Report, it was categorically stated that the deceased had
committed suicide. In the medical report, the exact cause of death could not
be stated, as the viscera preserved by the autopsy surgeon was to be sent to
the chemical expert. We have, however, noticed hereinbefore that viscera
contained a whitish violate fluid with a smell like that of kerosene. She was
found dead early morning at the verandah of her matrimonial home. PW-11
was definitely of the opinion that the death was due to the effect of
poisoning, but he merely stated that he would be able to hold conclusively as
to the cause of the death by poisoning only if he could find detection of
poison in the viscera report. In his report it was stated :
"\005There was vermilion marks on forehead and front
middle of scalp hairs whitish froth was coming out from
nostril and facial stains at the (illegible) region\005"
31. His deposition if read as a whole would clearly go to show that he
could not give definite opinion only in regard to the nature of poison. The
cause of death by poisoning was, therefore, not in issue. A plastic bottle
with while cork with a label ’Sumidon’ was also seized. The autopsy
surgeon noticed the smell of kerosene.
32. It is of some significance to note that even before the learned Trial
Judge, an argument was advanced by the learned counsel for the appellants
that it was a case of suicide, stating :
"Learned Advocate for the accused persons, during
his argument, stated that Bakulbala personally took the
poison in her mouth and died and the onus of proving this
is upon the prosecution and while such death is caused by
consumption of poison, then two other points are to be
considered whether that death is homicidal or accidental
in take or not\005"
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In Taiyab Khan (supra), this Court opined :
"\005It is a case of unnatural death. The learned counsel for
the appellant argued that the viscera report would have
shown as to whether the death occurred on account of
consumption of poison. This report was never received
and therefore, it cannot be said to be a case of death by
poisoning. In our view, the absence of viscera report does
not make any difference to the fate of the case. The fact
remains that it is a case of unnatural death\005."
33. It may be, as was submitted by Mr. Ghosh, that therein the offence
alleged to have been committed was one under Section 304B IPC, but in a
case of this nature, the legal principle thereof can be applied. In that case on
the basis of the materials on records even a suggestion that the deceased had
taken poison of her own and committed suicide has been disbelieved.
34. In the instant case, everybody proceeded on the basis that it is a case
of suicide. If an accidental consumption of poison was required to be
proved, the appellants and accused persons would not have fled away from
their house. Had it been a case of accident, they would have at least made
an attempt to take her to the hospital. Had it been done, such an argument
was possible to be advanced. No doubt there exists a difference between the
ingredients of Section 306 and 304B IPC, as has been held by this Court in
Harjit Singh (supra), but then it is not necessary for us in this case to go into
that aspect of the matter as it is not a case where the appellants have been
charged under Section 304B IPC but only for commission of an offence
under Section 306 IPC.
35. In P. Mani v. State of Tamil Nadu [(2006) 3 SCC 161] the accused
were charged under Section 302 IPC. It was in that situation, this Court
opined that the provision of Section 113A of the Evidence Act was not
available. Therein, it was noticed :
"11. The High Court furthermore commented upon the
conduct of the appellant in evading arrest from 4-10-
1998 to 21-10-1998. The investigating officer did not say
so. He did not place any material to show that the
appellant had been absconding during the said period. He
furthermore did not place any material on record that the
appellant could not be arrested despite attempts having
been made therefor. Why despite the fact, the appellant
who had been shown to be an accused in the first
information report recorded by himself was not arrested
is a matter which was required to be explained by the
investigating officer. He admittedly visited the place of
occurrence and seized certain material objects. The
investigating officer did not say that he made any attempt
to arrest the appellant or for that matter he had been
evading the same. He also failed and/or neglected to
make any statement or bring on record any material to
show as to what attempts had been made by him to arrest
the appellant. No evidence furthermore has been brought
by the prosecution to show as to since when the appellant
made himself unavailable for arrest and/or was
absconding."
The said decision was rendered on its own facts.
36. In the aforementioned situation, invocation of Section 113-A of the
Evidence Act, in our opinion was misconceived. Such is not the position here.
37. Involvement of all the accused persons to commit the offence must be
determined having regard to the entirety of the situation and the materials
brought on records. Section 113-A of the Evidence Act raises a presumption
against the accused, subject of course to the following conditions :
(a) That the husband or any member of his family had subjected the
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married woman to cruelty within the meaning of Section 498A IPC.
(b) The presumption is not mandatory; it is only permissive
according to the facts and circumstances of a given case.
(c) A consideration of all the other circumstances of the case may
strengthen the presumption or may cause the Court to abstain from drawing
the presumption.
38. A young lady committed suicide in the morning. Ordinarily, in a
village, all members of the family would get up early. Death took place on
the verandah of her house. Ordinarily suicide would be committed at a
secluded place and not in open place. It would not be committed before
anybody and certainly not when everybody in the house was present. In a
case of this nature, Section 113-A of Indian Evidence Act would be
attracted. Appellants did not adduce any evidence. All the inmates of the
house were accused. All came within the purview of Section 113-A of the
Evidence Act. Onus shifted to them to show that the death was accidental in
nature. Those who were near the deceased at the relevant time should have
shown as to how the accident took place. It is difficult to believe that an
educated woman would take poison accidentally.
39. In Randhir Singh v. State of Punjab [(2004) 13 SCC 129], it was
observed:
"9. Great stress was laid on the victim’s statement having
not expressed before her friends about any harassment. In
a tradition and custom-bound Indian society no
conservative woman would disclose family discords
before a person, however close he or she may be. Merely
because the deceased had not told close friends about the
demand of dowry or harassment that does not positively
prove the absence of demand of dowry. The said
circumstance has to be weighed along with the evidence
regarding demand of dowry. If the evidence regarding
demand of dowry is established, is cogent and reliable
merely because the victim had not stated before some
persons about the harassment or torture that would be
really of no consequence."
It was also observed:
"13. In State of W.B. v. Orilal Jaiswal 1 this Court has
observed that the courts should be extremely careful in
assessing the facts and circumstances of each case and
the evidence adduced in the trial for the purpose of
finding whether the cruelty meted out to the victim had in
fact induced her to end the life by committing suicide. If
it transpires to the court that a victim committing suicide
was hypersensitive to ordinary petulance, discord and
differences in domestic life quite common to the society
to which the victim belonged and such petulance, discord
and differences were not expected to induce a similarly
circumstanced individual in a given society to commit
suicide, the conscience of the court should not be
satisfied for basing a finding that the accused charged of
abetting the offence of suicide should be found guilty."
40. Each case, however, is required to be determined on its own facts.
The case at hand indicates the participation of the accused immediately
before the commission of the crime. The prosecution having established the
ingredients of offences falling both under Sections 498A and 306 of the
Indian Penal Code, the burden shifted on the accused which they failed to
discharge.
41. In the facts and circumstances obtaining in this case, we are of the
opinion that it is not a case where interference with the impugned judgment is
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called for. The appeal is dismissed accordingly.