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2008 DIGILAW 986 (CAL)

Shibsaday Roy v. STATE OF WEST BENGAL

2008-11-03

G.C.GUPTA, KISHORE KUMAR PRASAD

body2008
JUDGMENT: GUPTA, J. (1.) These three appeals are directed against a common judgment dated 11th September, 1990,-passed by the learned Assistant Sessions Judge, Malda, in Sessions Trial No. 27/1990 arising out of Sessions Case No. 120/1987 convicting Sukumar Roy, Sukhendu Roy, both sons of late Satyagopal Roy, Ms. Anandamoyee Roy, daughter of late Satyagopal Roy and Shibsaday Roy, son of Ms. Anandamoyee Roy, under Section 4 of the Dowry Prohibition Act. The said Shibsaday Roy was also convicted of the offence punishable under Section 306 of the Indian Penal Code. For the offence punishable under Section 4 of the Dowry Prohibition Act, all the convicts, except Anandamoyee Roy, were sentenced to suffer rigorous imprisonment for a period of one year as also to pay a fine of sum of Rs. 2,000/-each in default to undergo rigorous imprisonment for three months each. The convict Anandamoyee Roy was, however, sentenced to undergo simple imprisonment for a period of six months for the said offence. Shibsaday Roy, also a convict for the offence punishable under Section 306 of the I.P.C., was sentenced to suffer rigorous imprisonment for a period of ten years as also to pay fine of a sum of Rs. 4,000/-, in default to undergo imprisonment for a period of further two years. In so far as punishment of Shibsaday Roy is concerned, both the sentences were directed to run concurrently. (2.) The facts and circumstances of this case briefly stated are as follows: Shibsaday Roy is the son of the accused, Anandamoyee Roy. Anandamoyee Roy is the daughter of Satyagopal Roy. Sukumar Roy and Sukhendu Roy are the sons of Satyagopal Roy. Satyagopal Roy is, thus, the maternal grand-father of the accused Shibsaday Roy. Aswini Roy, the father of the victim was Satyagopals maternal uncles son. Satyagopal Roy and Aswini Roy were thus cousins. Jharna, daughter of Aswini Roy, fell in love with Shibsaday Roy, who at the material point of time was pursuing his studies in a college situate near the house of Jharna. It is alleged that Shibsaday Roy had physical relationship with Jharna as a result whereof she had conceived which ultimately was aborted. Jharna committed suicide on 9th February, 1985, in or near the house of Satyagopal Roy. It is alleged that Shibsaday Roy had physical relationship with Jharna as a result whereof she had conceived which ultimately was aborted. Jharna committed suicide on 9th February, 1985, in or near the house of Satyagopal Roy. A written complaint was lodged by Sushanta Kumar Roy, elder brother of Jharna, alleging that Shibsaday Roy, also known as Ratan, was responsible for the suicide committed by his younger sister, Jharna. It is on this basis that a criminal case was started. Charge- sheet was filed against all the four convicts and the said Satyagopal Roy who died before the charges were actually framed and, therefore, the case as against him was filed. Rest of the four accused persons were tried and convicted, as indicated above. (3.) The learned Trial Judge, relying on the evidence of the P.Ws. 1, 9 and 10, held that all the accused persons had demanded dowry. Out of all the persons, according to the learned Trial Judge, Anandomoyee Roy was most vociferous. He, however, held that the suicide was not the direct result of the demand of dowry. It is on this basis that the accused persons, except Shibsaday Roy, were kept out of the arena of Section 306 of the Indian Penal Code. As regards Shibsaday Roy, the learned Trial Judge held that the indifferent attitude of this accused was responsible or had led Jharna to commit suicide. To be precise, the views expressed by the learned Trial Judge are as follows: Accused Shibsaday however stand in a different footing. He is the man to whom it was known the predicament of the victim who had physical relation with him. She came down here to have a show-down with Shibsaday at least who was found present there. This accused appears to have no human qualities. He was a silent spectator for all the dastardly acts of the rest accused in demanding a dowry to the extent of Rs. 60/ 70 thousand even participated in it. He had not even the courtesy to take Jharna to hospital or made arrangement for the same. Even at 3 p.m. the body was lying under a jack fruit tree when inquest was done as apparent from inquest report (Ext. 6). He positively dissociated himself as if he had nothing to do. His tacit understanding with those who hindered solemnisation of their marriage for dowry is glaringly apparent. Even at 3 p.m. the body was lying under a jack fruit tree when inquest was done as apparent from inquest report (Ext. 6). He positively dissociated himself as if he had nothing to do. His tacit understanding with those who hindered solemnisation of their marriage for dowry is glaringly apparent. His indifferent attitude to be entire attitude goes against him and speaks a volume. Ones treating another so cruelly as to cause her to commit suicide amounts to instigation if not by express words. In the surrounding circumstances it is apparent that accused Shibsadays apathy towards Jharna was so cruel that led to her committing suicide." (4.) Mr. Sanyal, learned Counsel, appearing in support of all the three appeals submitted that the judgment is not based on the evidence on record. He contended that in the first place the F.I.R. does not disclose any allegation whatsoever against any of the accused persons with regard to any claim for dowry. He submitted further that the learned Trial Judge erred in drawing the conclusion that omission to indicate the demand for dowry in the F.I.R was not material. F.I.R. is the document, according to him, which was lodged when everything was fresh in the mind of the complainant. Had there been any demand for dowry, then it is inconceivable that the demand for dowry would not have been indicated in the F.I.R . He added that the P.W. 1 in his evidence deposed that the accused party at that time was not at all in favour of marriage of Shibsaday Roy because his elder brother and sister were unmarried. Mr. Sanyal submitted that the allegation as regards dowry is clearly an afterthought. The complainant party was told in no uncertain terms that it was not possible to agree with the proposal for marriage of Shisaday Roy when his elder brother and sister were unmarried and Shibsaday himself was a student. It is precisely the reason why there is not even a word, in the written complaint, as regards any claim for any dowry. Drawing our attention to the evidence of P.Ws. 9 and 10 Mr. Sanyal submitted that in any event these witnesses had admitted in their cross-examination that the alleged demand, if any, was made by Satyagopal Roy and none else. Drawing our attention to the evidence of P.Ws. 9 and 10 Mr. Sanyal submitted that in any event these witnesses had admitted in their cross-examination that the alleged demand, if any, was made by Satyagopal Roy and none else. Satyagopal Roy died before the charges were actually framed and, therefore, the case was filed as against him and that was the end of the matter as far as the dowry chapter was concerned. (5.) As regards conviction of Shibsaday Roy under Section 306 of the Indian Penal Code the first enquiry should be explanatory viz. how did the victim die? The second enquiry should be attributory viz. did the victim die due to any wrongful and illegal act or omission of the accused? An act or omission simpliciter does not become an offence unless it is also backed by a guilty mind. The answer to the explanatory enquiry is simple that the victim committed suicide. The attributory enquiry however is not that simple. The learned Trial Judge has held that the indifferent attitude of Shibsaday Roy was responsible or that the same led Jharna to commit suicide. If that had really led Jharna to commit suicide, that might be deplorable but may not amount to an offence. (6.) Explanation 2 to the Section 107 provides that "Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act". (7.) He in support of his submission relied on a judgment in the case of Shri Ram v. The State of U.P. reported in AIR 1975 SC 175 wherein the following was expressed:-"Thus, in order to constitute abetment, the abettor must be shown to have "intentionally" aided the commission of the crime. Mere proof that the crime charged could not have been committed without the interposition of the alleged abettor is not enough compliance with the requirements of Section 107. A person may, for example, invite another casually or for a friendly purpose and that may facilitate the murder of the invitee. But unless the invitation was extended with intent to facilitate the commission of the murder, the person inviting cannot be said to have abetted the murder. A person may, for example, invite another casually or for a friendly purpose and that may facilitate the murder of the invitee. But unless the invitation was extended with intent to facilitate the commission of the murder, the person inviting cannot be said to have abetted the murder. It is not enough that an act on the part of the alleged abettor happens to facilitate the commission of the crime. Intentional aiding and therefore, active complicity is the gist of the offence of abetment under the third paragraph of Section 107", (8.) In the case of Sanju alias Sanjay Singh Sengar v. State of Madhya Pradesh reported in AIR 2002 SC 1998 : 2002 C Cr LR (SC) 779 wherein an earlier judgment of the Supreme Court in the case of Ramesh Kumar v. State of Chhattisgarh, (2001)9 SCC 618 was quoted with approval reads as follows :-In Ramesh Kumar v. State of Chhattisgarh, (2001)9 SCC 618 , this Court while considering the charge framed and the conviction for an offence under Section 306, I.P.C. on the basis of dying declaration recorded by an Executive Magistrate, in which she had stated that previously there had been quarrel between the deceased and her husband and on the day of occurrence she had a quarrel with her husband who had said that she could go wherever she wanted to go and that thereafter she had poured kerosene on herself and had set fire. Acquitting the accused this Court said : "A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life quite common to the society to which the victim belonged and such petulance discord and difference 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 for abetting the offence of suicide should be found guilty." (9.) Mr. Sanyal submitted that there is no evidence on the record to show that there was any voluntary act or omission on the part of the accused Shibsaday Roy nor is there any evidence on the record to show that the accused Shibsaday Roy intended or even remotely entertained any wish to procure the death of Jharna say by suicide. She committed suicide which was an irrational act on her part. Shibsaday Roy had never declined to marry her which would also be evident from the letters exhibited on behalf of the prosecution itself, namely Exhibits 1 and 8. Shibsaday wanted time. If Jharna was desperate for marriage and she would not give time and committed suicide, for that Shibsaday cannot be said to have instigated her to commit such an unfortunate act which she did. (10.) Sk. Abdus Salam, learned Counsel, appearing for the State in this batch of appeals, submitted that Shibsaday Roy is undoubtedly responsible for the untimely death of a young woman. He by his conduct, according to him, instigated her to commit suicide. As regards demand for dowry, he submitted that it is clearly proved from Exhibit 1, which is a letter written by Satyagopal Roy, that such a demand was made. The evidence of P.Ws. 1, 9 and 10 corroborate the fact that the dowry was demanded. He, therefore, called upon this Court to refrain from interfering with the judgment and orders under challenge. (11.) We have considered the rival submission advanced by the learned Counsel appearing for the parties. As regards demand for dowry, the evidence on record is both oral and documentary. The documentary evidence is contained in Exhibit 1, which is a letter addressed by Satyagopal Roy, who was also an accused, to the father of the deceased Jharna. From the aforesaid letter being Exhibit 1, it appears that Aswini Roy, father of the deceased Jharna, had proposed that whatever Shibsaday would want would be given. Exhibit 1 contains demand for a Rajdoot motor cycle , cash and ornaments for Jharna. The letter obviously is written by the accused Satyagopal Roy. The oral evidence in that regard is that of the prosecution witness Nos. 1, 9, and 10. These three witnesses claimed to have jointly visited the house of Satyagopal Roy where the demand for dowry was made by all the accused persons. The letter obviously is written by the accused Satyagopal Roy. The oral evidence in that regard is that of the prosecution witness Nos. 1, 9, and 10. These three witnesses claimed to have jointly visited the house of Satyagopal Roy where the demand for dowry was made by all the accused persons. The P.W. 9 in his cross-examination has admitted that the demand was made by Satyagopal Roy only. His evidence in this regard reads as follows: "Satyagopal babu stated that in the event of such a marriage those ornaments and articles were to be offered." (12.) Similarly, P.W. 10 in his cross-examination deposed that it is Satyagopal who had made the demand. He, however, tried to improve his evidence by a voluntary statement which the learned Trial Judge has noticed. The evidence in that regard is as follows: Satyagopal first initiated talk (torn) behalf. He stated that if the marriage was to take place (torn) such articles were to be given. All of them participated in talk (voluntaries)." (13.) According to the P.W. 1 he was accompanied by P.Ws. 9 and 10. When the evidence of the P.Ws. 9 and 10 is that the demand was made by Satyagopal, it is difficult to believe that the others also made the demand or participated in the alleged demand. The evidence of the P.W. 1 in that regard is contrary to the evidence of the P.Ws. 9 and 10 and looses force. The fact that the demand was made only by Satyagopal Roy is further evident from the Exhibit 1. (14.) The picture which emerges is that the demand for dowry was made by Satyagopal Roy on the basis of the offer of Aswini Roy that the demand of the bridegroom would be met. The voluntariness or the intention to extort money as a consideration for the marriage was therefore not there. In any event the offence, if any, was committed by Satyagopal Roy who did not survive to face the trial. The conviction of the rest of the accused under section 4 of the Dowry Prohibition Act is, therefore, clearly unsustainable. (15.) The learned Trial Judge grossly erred in holding that the accused Shibsaday Roy had physical relationship with the deceased Jharna. Only one who deposed about any such relationship is the P.W. 8, Chhaya Roy. The conviction of the rest of the accused under section 4 of the Dowry Prohibition Act is, therefore, clearly unsustainable. (15.) The learned Trial Judge grossly erred in holding that the accused Shibsaday Roy had physical relationship with the deceased Jharna. Only one who deposed about any such relationship is the P.W. 8, Chhaya Roy. She in her cross-examination admitted that she did not have any personal knowledge with regard to any such relationship or the pregnancy or the abortion thereof. There is no other dependable evidence on the basis of which the learned Trial Judge could have come to the conclusion that there was physical relationship between the deceased Jharna and the accused Shibsaday Roy. If the alleged pregnancy hinted at by the P.W. 8 was true, the doctor, who caused the abortion, could have been examined. The brother and the brother-in-law of the deceased did not utter a word with regard thereto. In this backdrop it was not open to the learned trial Judge to infer that there was physical relationship between the deceased Jharna and the accused Shibsaday Roy. (16.) We are unable to agree with the learned Trial Judge that the accused Shibsaday Roy adopted an indifferent attitude or that he was apathetic or that his apathy led Jharna to commit suicide. There is no such evidence on record on the basis of which any one of these inferences can be supported. The P.W. 1 has admitted in his evidence that he was told by the accused persons that proposal for marriage of Shibsaday Roy was not acceptable because he had elder brothers and sister to be married. Exhibit 1 discloses that Shibsaday Roy was not willing to marry. (17.) Shibsaday Roy might have been in love with Jharna but he had not abandoned common sense. He wanted to complete his study; get a job and thereafter to marry, and for that purpose he needed time. It appears from Exhibit 8 that he requested Jharna to go back to her paternal house and to allow him to pursue his studies and to get a job and thereafter he would marry her. Jharna was desperate. She would not have any of the suggestions of Shibsaday Roy. It appears from Exhibit 8 that he requested Jharna to go back to her paternal house and to allow him to pursue his studies and to get a job and thereafter he would marry her. Jharna was desperate. She would not have any of the suggestions of Shibsaday Roy. The fact that there was a conversation between Shibsaday Roy and Jharna is also borne out by the First Information Report lodged by the P.W.I wherein the following statement has been made: "My sister took poison after conversation with Shibsaday." (18.) What was the conversation has not been disclosed by the P.W. 1 when he came to the box, but this conversation has been clearly depicted in Exhibit 8 which is a letter written by the accused Satyagopal Roy. (19.) We, therefore, have clear evidence to show that Shibsaday Roy was in love with Jharna. He wanted to marry her, but before doing so he wanted to complete his studies and to get a respectable job. Jharna was not willing to give him time. She was desperate and out of her desperation she ended her life which could not have been foreseen either by Shibsaday Roy or by any of his relatives. (20.) Can it therefore be said that Shibsaday instigated Jharna to commit suicide? We are clearly of the view that the answer is in the negative. Therefore conviction under section 306, I.P.C. is clearly bad and is not sustainable. (21.) For the reasons indicated above, all the appeals succeed. The order of conviction and sentence of the appellants passed by the learned Trial Judge is set aside and they are acquitted of the offences with which they were charged and of which they were convicted. The appellants are now on bail. They are discharged of their bail bonds. (22.) Lower Court Records with a copy of this judgment to go down forthwith to the concerned learned Trial Court for information and necessary action. Urgent xerox certified copy of this judgment, if applied for, be delivered to the learned Counsel, for the parties, upon compliance of all formalities.