Criminal Appeal No. 743 OF 2007 - [Arising out of S.L.P. (Crl.) No. 5950
S.B. Sinha, J
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.
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
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 all combined used to commit various 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
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.
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,
(i) No poison was detected in the
(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
(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
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 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
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 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.
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 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:
" There was
vermilion marks on forehead and front middle of scalp hairs whitish
froth was coming out from nostril and facial stains at the (illegible)
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
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,
"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 "
In Taiyab Khan (supra), this Court
" It 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 ."
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
"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."
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 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
(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
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 called for. The appeal
is dismissed accordingly.
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