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2003 DIGILAW 88 (GAU)

Abani Goswami @ Jitu Goswami v. State of Assam

2003-02-27

P.G.AGARWAL

body2003
P.G. AGARWAL, J- Heard Mr A.M. Bora, learned counsel for the appellant and the learned P.P. 2. This appeal is directed against the judgment and order dated 27.4.95 passed by the Sessions Judge, Morigaon in Sessions Case No. 64(M)93 (GR 475/92) whereby the accused appellant Abani Goswami alias Jitu Goswami was convicted u/s 306, IPC and sentenced to imprisonment for two years and six months and to pay a fine of Rs. 100/-in default further imprisonment for 10 days. 3. This is a case of unfortunate death of young house wife and the investigation ball was set rolling by Sidhabari Pragati Manila Samity by filing the ejahar (Ext. 1) stating that the accused appellant, the husband of Archana Goswami @ Binu Goswami, used to torture his wife cruelly for demand of dowry etc. and it has resulted in the death of the young wife. 4. The accused appellant was charged u/s 304(B)/306, IPC. However, in view of the evidence on record, the trial Court held that no case of demand for dowry has been made out and, thereafter convicted the accused appellant u/s 306, IPC. 5. During trial, the prosecution examined as many as 11 witnesses and the defence examined one witness. PW-8 is Dr. Rabindra Nath Hazarika who held the autopsy over the dead body and found no external injury on the same and in order to ascertain the cause of death, the viscera, liver, kidney and the stomach with its contents were sent to Forensic Science Laboratory for chemical analysis. PW-10 Kamal Ch. Sarma, a Sr. Scientific Officer submitted a report that the death was due to poisoning as a result of consumption of organochlorin insecticide which may cause death of human being. The medical and chemical expert's evidence clearly show that the deceased Binu Goswami died as a result of consumption of insecticide. However, there is no direct evidence as to whether the deceased had taken the insecticide himself or it was administered to her. To benefit was extended to the accused. However, the fact remains well established that the death of Binu Goswami had occurred otherwise than under normal circumstances. In this case, the accused has been convicted on the basis of presumption u/s 113 A of the Evidence Act as there was no direct evidence that the accused appellant had abetted. To benefit was extended to the accused. However, the fact remains well established that the death of Binu Goswami had occurred otherwise than under normal circumstances. In this case, the accused has been convicted on the basis of presumption u/s 113 A of the Evidence Act as there was no direct evidence that the accused appellant had abetted. In the case of Ramesh Kumar-Vs-State of Chhattisgarh, reported in (2001)9 SCC 618 , the Apex Court laid down the requirement regarding applicability of Section 113 A of the Evidence Act as follows:- "This provision was introduced by the Criminal Law (Second) Amendment Act, 1983 with effect from 26.12.1983 to meet a social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide by the husband of in-laws and incriminating evidence was usually available within the four corners of the matrimonial home and hence was not available to anyone outside the occupants of the house. However, still it cannot be lost sight of that the presumption is intended to operate against the accused in the field of criminal law. Before the presumption may be raised, the foundation thereof must exist. A bare reading of Section 113-A shows that to attract applicability of Section 113-A, it must be shown that (i) the woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the above said circumstances, the Court may presume that such suicide had been abetted by her husband or by such relatives of her husband. Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory; it is only permissive as the employment of expression 'may presume' suggests. Secondly, the existence and availability of the above said three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the Court shall have to have regard to "all the other circumstances of the case". A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the Court to abstain from drawing the presumption. A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the Court to abstain from drawing the presumption. The expression - "the other circumstances of the case" used in Section 113-A suggests the need to reach a cause-and-effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least, the presumption is not an irrebuttable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase "may presume" used in Section 113-A is defined in Section 4 of the Evidence Act, which says - "whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it." 6. The learned counsel for the appellant is fair enough to submit the fact that the deceased had committed suicide within the period of seven years from the date of her marriage which is not disputed in view of the materials on record. The moot point for consideration is whether the accused appellant had subjected her to cruelty. 7. Miss Anu Saikia (PW-1) is not an eyewitness to the occurrence. Miss Niva Bharali (PW-2) has deposed that on the date of occurrence the accused with a dao in his hand had assaulted his wife whereupon the deceased shouted "my mother, I cannot bear any more; let me be taken home". She has also stated that some persons saw the accused administering something to his wife, but that part of the evidence was not relied upon by the trial Court. PW-3 is a reported witness only. PW-4 Bakuli Rajbangshi is a neighbour of the accused appellant and on the date of the incident at about 9 am she went out to bring back their goat and she saw the accused person assaulting his wife and the wife shouting "do not assault, me, kill me at a time with dao or leave me at my father's place." She also saw the accused administering something to his wife and out of fear she did not go near. Later on, his wife was found dead with bleeding from mouth. Later on, his wife was found dead with bleeding from mouth. PW-5 Tutu Mom Bharali is another eyewitness who saw the accused assaulting his wife. PW-6 also reported by the deceased about assault by her husband. 8. This being a case of cruelty on the wife by the husband, there can not be many eyewitness. The trial Court on consideration of the materials on record held that there is reliable evidence as regards the assault meted out by the accused to the deceased wife and has given cogent reason. The learned counsel for the appellant has however submitted that in a criminal trial, the proof beyond reasonable doubt is required and the benefit, if any, is to be extended to the accused. In this connection we may recapitulate the observations of the Apex Court in the case of State of West Bengal-Vs-Orilal Jaiswal and another, reported in (1994)1 SCC 73 wherein the Apex Court held: "15. We are not oblivious that in a criminal trial the degree of proof is stricter that what is required in a civil proceedings. In a criminal trial however intriguing may be facts and circumstances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirement of proof cannot lie in the realm of surmises and conjectures. The requirement of proof beyond reasonable doubt does not stand altered even after the introduction of Section 498-A IPC and Section 113-A of Indian Evidence Act. Although, the Court's conscience must be satisfied that the accused is not held guilty when there are reasonable doubts about the complicity of the accused in respect of the offences alleged, it should be borne in mind that there is no absolute standard for proof in a criminal trial and the question whether the charges made against the accused have been proved beyond all reasonable doubts must depend upon the facts and circumstances of the case and the quality of the 'evidences adduced in the case and the materials placed on record. Lord Denning in Bater-Vs-Bater has observed . that the doubt must be of a reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject-matter. 16. Lord Denning in Bater-Vs-Bater has observed . that the doubt must be of a reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject-matter. 16. In Gurbachan Singh-Vs-Satpal Singh Mr Justice Sabyasachi Mukherjee (as he then was) has very rightly indicated the conscience of the Court can never be bound by any rule but that is coming itself dictates the consciousness and prudent exercise of the judgment. Reasonable doubt is simply that degree of doubt which would permit a reasonable and just man to come to a conclusion. Reasonableness of the doubt must be commensurate with the nature of the offence to be investigated. Exaggerated devotion to the rule of benefit of doubt must not nature fanciful doubts or lingering suspicions and thereby destroy social defence. Justice cannot be made seterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law (emphasis supplied)." 9. In the instant case, there is evidence of the prosecution witnesses including the neighbours regarding the alleged assault by the accused appellant on his wife on the date of the incident and supported by surrounding circumstances leads to the only conclusion that being unable to bear the burnt any more, the young wife ended her life and obviously there was no reason on the part of a mother of two children to commit suicide. 10. The learned counsel for the appellant has further submitted that the presumption u/ s 113 A of the Evidence Act is rebuttable presumption. There is no dispute about the same. In Ramesh Kumar (supra) itself the Apex Court held that the presumption u/s 113 A is a rebuttable one. In the instant case it is also seen that the deceased on earlier two occasions had left the house of the accused and had taken shelter at her brother-in-law's place. The learned P.P. has submitted that the evidence of the PWs lends support to the prosecution story that being unable to bear the torture and cruelty meted out to her, she had to take shelter at her sister's place alongwith her minor children. The accused however wants to show that the young wife had some extra material relationship with her own brother-in-law. The accused however wants to show that the young wife had some extra material relationship with her own brother-in-law. From the evidence of DW-1 it cannot be inferred even that the presumption of abetting suicide stands rebutted. There is no evidence to show that the deceased was a deranged woman to commit suicide at the spur of moment and the evidence points otherwise. In view of the material evidence on record, we find that the trial Court has rightly held that presumption u/s 113 A are available in the present case and it was the accused who abetted the suicide of his wife. 11. In view of the above, we find no merit in this appeal and the appeal is accordingly dismissed.