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2008 DIGILAW 590 (CAL)

Prasanta Bardhan v. STATE OF WEST BENGAL

2008-06-16

G.C.GUPTA, KISHORE KUMAR PRASAD

body2008
Judgment : GIRISH CHANDRA GUPTA, J. (1) THIS appeal is directed against a judgment dated 15th March, 1999, by which the appellants, Prasanta Bardhan, Ashok bardhan and their father. Pranabesh Bardhan were convicted under section 498a/306 read with section 34 of the Indian Penal Code by the learned additional Sessions Judge, 14th Court, Alipore, 24-Parganas, in Sessions trial No. 5 (3) of 1996, and an order dated 16th March, 1999, by which the appellant No. 3, Pranabesh Bardhan. was sentenced to rigorous imprisonment for five years as also to pay a fine of Rs. 2. 000/-, in default to suffer further imprisonment for a term of six months for the offence punishable under section 306 read with section 34 of the Indian Penal Code. The convicts, prasanta Bardhan and Ashok Bardhan, were sentenced to rigorous imprisonment for eight years each as also to pay fine of Rs. 2,000/- each, in default, to suffer imprisonment for a further period of six months each for the offence punishable under section 306 read with section 34 of the Indian penal Code. All the convicts were sentenced to suffer rigorous imprisonment for a year for the offence punishable under section 498a of the IPC. They were also sentenced to pay fine of Rs. 1000/- each, in default, to suffer imprisonment for a further period of three months each. All the sentences were directed to run concurrently. (2) THE convicts came up in appeal. The appellant Nos. 2 and 3, Ashok bardhan and Pranabesh Bardhan, were enlarged on bail by an order dated 11th May, 1999. The prayer for bail made by the appellant No. 1, Prasanta bardhan, was, however, rejected. (3) MR. P. S. Bhattacharyya, the learned Counsel, appearing in support of the appeal, drew our attention to a certificate dated 12th February, 2005, issued by the Superintendent, Alipore Central Correctional Home, stating that the appellant No. 1, Prasanta Bardhan, has already served out his sentence and paid the amount of fine. Mr. Bhattacharyya has also produced a death certificate, showing that the appellant No. 3, Pranabesh Bardhan, has died during the pendency of the appeal. Xerox copies of the certificates submitted by Mr. Bhattacharyya, learned Counsel, for the appellants, be kept on the records of this case. (4) THE facts and circumstances of the case briefly stated are that on 23rd july, 1993, Mahamaya was married to Prasanta Bardhan according to Hindu rites. Xerox copies of the certificates submitted by Mr. Bhattacharyya, learned Counsel, for the appellants, be kept on the records of this case. (4) THE facts and circumstances of the case briefly stated are that on 23rd july, 1993, Mahamaya was married to Prasanta Bardhan according to Hindu rites. On 29th July, 1993, Prasanta Bardhan left the country for Saudi Arabia on an assignment. He came back on 28th August, 1994. On 30th March, 1995, Mahamaya committed suicide. A written complaint dated 30th March, 1995, was filed by Prabir Kumar Sinha, an elder brother of the deceased, mahamaya, on the basis whereof a case under sections 498a, 306 read with section 34 of the Indian Penal Code was started against all the three appellants. They were ultimately charged under the same sections and convicted as aforesaid. (5) MR. Partha Sarathi Bhattacharyya, learned Counsel, appearing in support of the appeal, submitted that the prosecution has not been able to prove any of the allegations levelled against his clients. He submitted that the judgment under challenge is grossly unmeritorious and deserves to be set aside. We shall discuss the evidence on the record in some detail. (6) THE written complaint lodged by Prabir Kumar Sinha, P. W. I, may briefly be summarised as follows : (a) On 23rd July, 1993, Mahamaya was given in marriage to Prasanta bardhan according to Hindu rites and customs; (b) On 29th July, 1993, Prasanta Bardhan left the country for Saudi Arabia; (c) During the absence of Prasanta Bardhan, his younger brother, Ashok bardhan, developed an extramarital affair with the deceased, Mahamaya; (d) Prasanta Bardhan, after his return from Saudi Arabia, met the mother of the deceased and requested her to give Mahamaya in remarriage to ashok Bardhan in view of the extramarital affairs developed by her. The proposal of Prasanta Bardhan was rejected by the mother of the deceased. (e) Torture both mental and physical thereafter were started upon the deceased; (f) On 30th March, 1995, the deceased committed suicide; (g) Another significant allegation is as follows : "it is also our suspicion that a special friend of Prasanto viz. The proposal of Prasanta Bardhan was rejected by the mother of the deceased. (e) Torture both mental and physical thereafter were started upon the deceased; (f) On 30th March, 1995, the deceased committed suicide; (g) Another significant allegation is as follows : "it is also our suspicion that a special friend of Prasanto viz. Dipak used to frequent their place and might have instigated them because whenever from time to time we would visit my sisters in-laws place, Dipak was seen there." (7) FROM the complaint summarized above it would appear that the allegation as regards torture allegedly inflicted by the in laws of the deceased commenced only after return of Prasanta Bardhan from abroad. Prasanta bardhan came back on 28th August, 1994. The deceased died on 30th March, 1995. A period of little more than seven months elapsed in between. (8) THE police has not even examined the aforesaid Dipak which would appear from the admission of the Investigating Officer, P. W. 28, which reads as follows : "but I have not examined Dipak Haider and Jishu Sinha. " (9) WHAT is further significant is that P. W. I in his evidence has admitted that the police was never informed as regards the alleged torture allegedly inflicted upon the deceased. The P.W. I in his evidence did not disclose any specific overt act on the part of the accused persons except that the complainant party was not allowed to enter into the matrimonial house of the deceased. Even this part of the evidence was negated by his admission that Partha Das, P. W. 8, and his parents used to visit the matrimonial house of the deceased. It is significant that the deceased was an educated woman. She was before marriage a student of Basanti Devi College. (10) THE P. W. 6, Ashok Sinha, a younger brother of the deceased deposed that "i do not know anything about any torture upon my elder sister excepting that we were not allowed by them to have a conversation with their house". (11) THE P. W. 7, Manoj Das, a brother-in-law of the deceased, deposed that he came to know from his in laws that the deceased was living in disharmony in her matrimonial house; he had once talked to the deceased, in her paternal house, when she disclosed that there was disharmony in her matrimonial house. (11) THE P. W. 7, Manoj Das, a brother-in-law of the deceased, deposed that he came to know from his in laws that the deceased was living in disharmony in her matrimonial house; he had once talked to the deceased, in her paternal house, when she disclosed that there was disharmony in her matrimonial house. What was the nature of the disharmony he did not try to ascertain. He also has not disclosed when was this piece of information imparted to him by the deceased. This is important because the written complaint is that after 28th August, 1994, the deceased was not allowed to go to her paternal house and prior thereto there was nothing to complain about. Therefore the evidence of P. W. 7 cannot be relied upon. (12) P. W. 8, Partha Das, referred to by the P. W. 1 in his evidence, deposed that he had been to the matrimonial house of the deceased on three or four occasions and the accused persons did not allow the deceased to use vermilion on her head. The evidence of the P. W. 26, Dr. B. C. Majumdar, the autopsy surgeon, is that he found "vermilion mark over the parting line of the scalp hair". (13) THEREFORE, this part of the evidence of the P. W. 8 is not believable. (14) THE second important fact deposed to by the P. W. 8, Partha Das, is that the accused, Ashok Bardhan, had on one occasion kicked on the belly of the deceased. In his cross-examination he, however, admitted that the alleged kick was not disclosed by him to the Investigating Officer. The third important fact deposed to by the P. W. 8, Partha Das is that the deceased had told him that she was being tortured by her in-laws, but she at the same time requested him not to disclose the fact to her mother. (15) IT is rather difficult to believe that an educated woman being tortured by her in laws would not like the fact to be known to her parents. The P. W. 8, Partha Das, did not in his evidence even by approximation disclose as to the date or month when he had allegedly visited the matrimonial house of the deceased. We are convinced, for reasons discussed, that the evidence of the P. W. 8, Partha Das, is of no use whatsoever. The P. W. 8, Partha Das, did not in his evidence even by approximation disclose as to the date or month when he had allegedly visited the matrimonial house of the deceased. We are convinced, for reasons discussed, that the evidence of the P. W. 8, Partha Das, is of no use whatsoever. (16) P. W. 9, Mira Das, the mother of Partha Das (P. W. 8), deposed that she visited the matrimonial house of the deceased singly as also accompanied by her husband. According to her evidence, the deceased reported to her that the latter was being subjected to torture at the instance of Ashok bardhan, and Pranabesh Bardhan, the father-in-law. But the strange part of her evidence is that she did not disclose the same to any of the members of her family. (17) THE P. W. 9, Mira Das, added that the deceased had shown her a mark of burn injury inflicted by the butt of a cigarette. The P. W. 28, the 10, in his cross-examination, admitted that no such burn injury with the help of the butt of a cigarette was disclosed to him by the P. W. 9, Mira Das. We are, for the reasons indicated, unable to rely on the evidence of the P. W. 9, Mira Das. (18) THE P. W. 10, Smt. Kaberi Sinha, the deceaseds brothers wife, deposed that within five/six months from the date of marriage of the deceased, she came to know from her mother-in-law that the deceased was being tortured in her matrimonial house. (19) THIS is not even the case of the P. W. 1, the brother of the deceased. According to him, torture started after Prasanta Bardhan came from abroad which took place on 28th August, 1994. She added that she had been to the matrimonial house of the deceased and found her in the position of a maidservant. This does not get any corroboration from the evidence of the brothers of the deceased, the P. W. I and the P. W. 6. The P. W. 10 admittedly is a non-resident Calcuttan. She came from outside. According to her own evidence, she ascertained from her in-laws about the alleged torture allegedly inflicted upon the deceased. She added further that after the proposal for remarriage had been rejected by her mother-in-law, she accompanied by her husband went to the matrimonial house of the deceased. The P. W. 10 admittedly is a non-resident Calcuttan. She came from outside. According to her own evidence, she ascertained from her in-laws about the alleged torture allegedly inflicted upon the deceased. She added further that after the proposal for remarriage had been rejected by her mother-in-law, she accompanied by her husband went to the matrimonial house of the deceased. In her presence the deceased embraced her brother and told him that the accused persons would not allow her to survive. (20) THE P. W. 28, the Investigating Officer, in his evidence has admitted that no such thing was disclosed to him by this witness during her examination under section 161 of the Code of Criminal Procedure. To be precise, the evidence of the P. W. 28 in this regard is as follows : "P.W. 10 has not stated before me that Mahamaya had disclosed after embracing her husband that the accused persons would not allow her to survive." (21) THE P. W. 11, Arup Sinha, another brother of the deceased, deposed as follows : "i visited the house of accused after the marriage of Mahamaya and I noticed that Mahamaya was subjected to torture by the accused. The accused used to misbehave with Mahamaya just like a maid servant and they did not allow us to meet Mahamaya. " (22) THE evidence of the P. W. 11 is contrary to the case to be found in the written complaint. There is no allegation in the written complaint that prior to 28th August, 1994, there was any torture whereas the evidence of the p. W. 11, Arup Sinha, is that the torture started immediately after the marriage. On the top of that, no specific overt act, which was considered to be a torture by the witness, was disclosed by him. "general allegations are insufficient even to amount to an averment of fraud of which any Court ought to take notice, however strong the language in which they are couched may be and the same applies to undue influence and coercion" (see Bishnudeo vs. Seogeni reported in AIR 1951 SC 280 ). "general allegations are insufficient even to amount to an averment of fraud of which any Court ought to take notice, however strong the language in which they are couched may be and the same applies to undue influence and coercion" (see Bishnudeo vs. Seogeni reported in AIR 1951 SC 280 ). The law of pleading as regards fraud, undue influence and coercion shall apply with greater force to a piece of oral evidence given in a criminal trial because a general allegation can be denied by a simple suggestion and nothing shall remain which may be used with any amount of certainty against the accused. (23) THE P. W. 12, Mano Ranjan Sinha, another brother of the deceased, deposed the same thing as did the P. W. 11 which is open to the same criticism indicated hereinabove. For elucidation we may set out the relevant portion of the evidence of the P. W. 12 which is as follows : "she got married on 23. 7. 93 and died on 30. 3. 95. Accused Prasanta left for Saudi Arab after about 5 days from her marriage. He returned to india after about 1 year. My sister Mahamaya used to live in the house of the accused in the absence of accused Prasanta. Father-in-law and husbands younger brother of Mahamaya used to live in the house at that time. Mahamaya was subjected to torture both physically and mentally at the instance of her father-in-law and husbands younger brother during this period. " (24) WE need not repeat that this part of the evidence of the P. W. 12, mano Ranjan Sinha, is contrary to the case to be found in the written complaint. (25) THE P. W. 16, Sabita Sarkar. a student of the deceased, deposed that during conversation with the deceased she had come to know that the deceased was tortured both physically and mentally. She, however, added in her cross-examination as follows : "i did not disclose to anybody that Mahamaya reported to me regarding her torture. " (26) IT is difficult to believe that after knowing about any torture she would not divulge it to anyone regard being had to the human conduct. On the top of that, no particular instance, which was considered to be torture, was not disclosed by her in her evidence. We have exhausted the evidence of the witnesses related to the deceased. On the top of that, no particular instance, which was considered to be torture, was not disclosed by her in her evidence. We have exhausted the evidence of the witnesses related to the deceased. (27) WE shall now consider the evidence of the neighbours. (28) P.W. 4, Sandip Poddar, a tenant in the same building where the deceased used to reside, deposed that occasionally he heard the sound of altercation between the inmates of the house of the accused persons. He, however, did not know who the parties to such altercation were. He was declared hostile. (29) THE P.W. 5, Mewa Lai Chowdhury, who had given the first information to the police over telephone, deposed that the deceased was happy in her matrimonial house. He was declared hostile. The P. W. 5 also deposed that dipak Haider, against whom the police did not take any step, regularly frequented the house of the accused persons and the deceased used to go on walks with Dipak Haider which he had himself seen. (30) P. W. 13, Debasish Das Gupta, deposed that he had heard the sound of altercation between the inmates of the house of the accused persons. He, however, did not know who the parties to such altercation were. (31) P. W. 15, Smt. Maya Rani, another neighbour, deposed that once she heard a cry of the deceased "bachao Bachao"; but she admitted in her cross-examination that she was not on speaking terms with the deceased nor had she ever seen her. If she had not seen the deceased she could not have been familiar with her voice. How could she know that the cry "bachao Bachao" emanated from the deceased is really a mystery. (32) THESE arc the sixteen witnesses who deposed about the alleged torture allegedly inflicted upon the deceased. We have discussed the evidence of the sixteen witnesses in some detail and indicated the reasons why no one of them is a believable witness. (33) P. W. 26, the Autopsy Surgeon, opined that the death was due to hanging and ante-mortem in nature. P. W. 26 further deposed that a yellow piece of paper was recovered from inside the blouse of the deceased which has been marked exhibit-5/1. (33) P. W. 26, the Autopsy Surgeon, opined that the death was due to hanging and ante-mortem in nature. P. W. 26 further deposed that a yellow piece of paper was recovered from inside the blouse of the deceased which has been marked exhibit-5/1. There is some controversy whether this exhibit 5/1 was at all recovered from the blouse of the deceased because there is evidence to show that the body of the deceased at that time was in a naked condition. If the body was in a naked condition, the question of any yellow or any piece of paper being found from the blouse of the deceased could not have arisen. P. W. 5, Mewalal Chowdhury, has deposed that he had seen the deadbody almost in a naked condition in the matrimonial house. There are photographs of the deadbody appearing to have been exposed in the matrimonial house which do not go to show that the deadbody was in a naked condition. The inquest was held by the P. W. 19. Inquest was held at 2. 30 p. m. on 31st March, 1995, and the post-mortem was held at 2. 45 p. m. on 31st, March, 1995. Inquest report is exhibit-7 and the post-mortem report is exhibit-16. Inquest report being exhibit-7 goes to show that there was no wearing apparel. The P. W. 19 at the first instance deposed that there was no indication in the inquest report that the body was in a naked condition, but applying his mind to the inquest report he corrected himself by saying that the body was in a naked condition. We can well appreciate that the p. W. 19 was deposing on the basis of the report which he had contemporaneously prepared. He had no independent recollection. The inquest report being exhibit-7 goes to show that there was no wearing apparel. It is on this basis he must have deposed that the body was naked. It is significant that the inquest and the post-mortem both took place in the morgue the inquest took place at 2. 30 p. m. and post-mortem took place at 2.45 p.m. If the body was naked at 2.30 p.m., it could not have been clothed at 2.45 p. m. If the body was naked, the story about the suicidal note, Exhibit-5/1, being recovered from the blouse of the deceased has been introduced with an ulterior motive. 30 p. m. and post-mortem took place at 2.45 p.m. If the body was naked at 2.30 p.m., it could not have been clothed at 2.45 p. m. If the body was naked, the story about the suicidal note, Exhibit-5/1, being recovered from the blouse of the deceased has been introduced with an ulterior motive. It is at the same time difficult to believe that the autopsy surgeon will be a party to such a nefarious practice. It is equally difficult to believe that the P. W. 19 a treasury officer, who conducted the inquest, would deliberately make a wrong recording in his inquest report that there was no wearing apparel on the body of the deceased. One possibility is that the inquest report was prepared merely as a matter of formality after the post-mortem had been held. At the post-mortem the body must have been bared. If the inquest report was prepared after the post-mortem, then it is possible that the P. W.- 19 who conducted the inquest, did not find any clothing on the body of the deceased and recorded the same. No such suggestion was however given to the P. W. I9. The genuineness of the suicidal note, exhibit-5/1, is thus gravely in doubt. (34) A few letters have also been relied upon by the prosecution which have been marked Exhibit 5/4 and Exhibit 5/5, which were allegedly identified, by the accused Pranabesh Bardhan while he was in custody, to be in the handwriting of the deceased, and it is on this basis that they have been marked. Any statement made by the accused to the police during the investigation is inadmissible in evidence. It was a gross illegality on the part of the learned Trial Court to mark these documents as Exhibit-5/4 and exhibit 5/5 on the basis of the identification allegedly made by the accused pranabesh Bardhan while he was in custody. (35) THE prosecution has examined a handwriting expert, the P. W. 20, jiban Kumar Sen Chowdhury, who on the basis of comparison, has deposed that the handwriting appearing in the alleged suicidal note and the other documents exhibited is that of the deceased. There is no satisfactory evidence on the record to show that there was appropriate evidence before the Court to hold that the documents used for the purpose of comparison contained handwriting of the deceased. There is no satisfactory evidence on the record to show that there was appropriate evidence before the Court to hold that the documents used for the purpose of comparison contained handwriting of the deceased. The evidence of the handwriting expert naturally becomes weak. We shall, however, for the sake of argument, consider the letters, alleged to have been written by the deceased, with a view to satisfying ourselves whether the prosecution has been able to prove even the semblance of a case. (36) THERE is a letter addressed by the deceased to her mother which has been marked A/1 by the P. W. 20 which goes to show that the deceased was not interested in going to her paternal house during the absence of her husband from the country. The letter also goes to show that she was happy in her matrimonial house. There is another document, marked Exhibit 5/4, dated 11th January, 1995 which goes to show that the deceased used to indulge in light humour with the accused, Ashok Bardhan. There is an allegation in this document that while she was engaged in humour with Ashok Bardhan, he suddenly tried to throttle her and she dissuaded him by catching hold of his testicles. This document contains a recital that she was unable to go to police because she had been confined in the house and was not allowed to talk to anyone, not even to the inmates of the house. This document, Exhibit 5/4, goes to show that the deceased had developed intimacy with the accused, Ashok bardhan. Even if we assume that Ashok Bardhan tried to throttle the deceased, this would not help the case of the prosecution because it is nobodys case that the deceased was killed. On the contrary, the case is that the deceased committed suicide. Therefore, the alleged attempt to throttle the deceased does not really help the case of the prosecution. This may suggest that the deceased had developed intimacy with the accused, Ashok Bardhan, and Ashok Bardhan may have started distancing himself from the deceased or may have started disliking her. At this juncture the case of the defence that the deceased had developed intimacy with Dipak which was resented by the family becomes probable. (37) THE only other document, which is of any significance, is Exhibit 5/1 which is the so called suicidal note. At this juncture the case of the defence that the deceased had developed intimacy with Dipak which was resented by the family becomes probable. (37) THE only other document, which is of any significance, is Exhibit 5/1 which is the so called suicidal note. We shall for convenience set out hereinbelow a translated version of the aforesaid suicidal note : "maa these people have at last killed me. Dear Prasanta, it is my earnest request to you that you should never in future get married. Do not kill a girl by marrying her. To kill is to sin. You are a killer. Your Bachoo, your father and you all are killers. 1 have been killed. " (38) THIS letter or the suicidal note or any other name one may choose to give, we are inclined to think, goes to suggest that Prasanta Bardhan according to the deceased committed a sin by marrying her. The advice is that do not kill a woman in future by marrying her. According to the deceased, prasanta Bardhan killed her by marrying; he offended her by marrying her, he killed her by marrying. This only goes to suggest some physical disability in Prasanta Bardhan which could also be the reason why the deceased had developed an extra-marital relationship with the brother of her husband which also goes to explain why the deceased was happy in her matrimonial house during the absence of her husband which also goes to explain why was the deceased fond of Dipak Haider. If this was the reason which led the deceased to commit suicide, can it be said that the accused persons have abetted the same? They may have opposed or they may not have allowed the deceased to go haywire. But we are convinced that the story of torture propounded by the prosecution is altogether bad. (39) THE deceased died within less then two years of her marriage. Therefore, the presumption under section 113a of the Evidence Act may be pressed into service, which provides as follows : "113a. But we are convinced that the story of torture propounded by the prosecution is altogether bad. (39) THE deceased died within less then two years of her marriage. Therefore, the presumption under section 113a of the Evidence Act may be pressed into service, which provides as follows : "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. " (40) BUT before the presumption can successfully be used, it has to be shown that the husband or such relatives of the husband had subjected the deceased to cruelty. The expression "cruelty" has been defined in section 498a of the IPC to mean any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide. (41) IT is clear from the translated version of the suicidal note appended hereinabove that the deceased is imputing charge of killing to the accused persons only figuratively or metaphorically and not literally. There is no other evidence to show any wilful conduct which may be termed as an instance of cruelty. The accused Prasanta had admittedly no objection to her remarriage. It is the complainant party which did not allow the same to happen. Here there is no wilful conduct alleged against any of the accused persons and of less proved. (42) WE are for the reasons indicated above satisfied that even if the documentary evidence is treated as genuine as also true, as regards which we have grave doubt, the case of the prosecution has no legs to stand upon. (43) IT is unfortunate that during the pendency of the appeal the appellant no. 1, Prasanta Bardhan has served out the sentence and the appellant No. 3. Pranabesh Bardhan has died. (44) THE judgment and the order of conviction and sentence under challenge are both set aside. (43) IT is unfortunate that during the pendency of the appeal the appellant no. 1, Prasanta Bardhan has served out the sentence and the appellant No. 3. Pranabesh Bardhan has died. (44) THE judgment and the order of conviction and sentence under challenge are both set aside. The fine if any realised from the appellant No. l, Prasanta bardhan, should be refunded, within four weeks from the date of filing of the certified copy of this judgement. (45) THE appellant No. 2, Ashok Bardhan, is discharged of his bail bond. The appeal is thus allowed. (46) THE Criminal Section of this Court is directed to send down a copy of this judgment and the Lower Court records to the concerned learned Trial court for information and necessary action. Appeal allowed.