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2009 DIGILAW 240 (GAU)

Lily Bora v. State of Assam

2009-04-07

AMITAVA ROY

body2009
JUDGMENT Amitava Roy, J. 1. In challenge is the judgment and order dated 28.5.2007 passed by the learned Sessions Judge, Jorhat in Sessions Case No. 95(JJ)/2002 convicting the appellants herein under Section 306 of the Indian Penal Code (hereafter referred to as the 'Code') and sentencing them to rigorous imprisonment for one year and 5 years respectively and also to pay fine of Rs.1,000 each, in default, to undergo rigorous imprisonment for a further period of 3 months. 2. I have heard Mr. N.K. Baruah, learned Counsel for the appellants and Mr. Z. Kamar, learned Public Prosecutor, Assam. 3. An FIR dated 13.8.2000 having been lodged by one Rajib Saikia, the younger brother of the deceased with the Officer-in-charge, Jorhat Police Station alleging physical torture by the accused appellants and burn injuries sustained by the deceased on 11.8.2000, rendering her condition to be precarious for which she was removed for treatment to the Jorhat Civil Hospital, Jorhat PS Case No. 307/2000 under Section 498A of the Code was registered. Following the investigation, charge sheet was laid against the accused appellants under Section 304B of the Code as meanwhile the deceased had succumbed to her injuries at the Dibrugarh Medical College Hospital, Dibrugarh. The Sessions Court before which the case was committed for trial charged the accused appellants under Sections498A and 304B of the Code to which they pleaded "not guilty". As many as 15 witnesses were examined by the prosecution including two Medical Officers and the Investigating Officer. The accused appellants in their statement under Section 313, Cr.PC, took the plea of innocence. They, however, examined one witness in defence. By the impugned judgment and order, they were convicted and sentenced as above. 4. Mr. Baruah has argued that the accused appellants having been acquitted of the charge framed under Sections 304B and 498A of the Code, in absence of any direct and convincing evidence for commission of abutment of suicide by the deceased, their conviction under Section 306 of the Code is palpably erroneous and is liable to be interfered with. According to the learned Counsel, it being evident from the dying declaration of the deceased (Ext. 6) that the incident was out and out an accident, the conviction of the accused appellants under Section 306 of the Code is per se illegal and therefore, the judgment and order is liable to be set aside. Mr. According to the learned Counsel, it being evident from the dying declaration of the deceased (Ext. 6) that the incident was out and out an accident, the conviction of the accused appellants under Section 306 of the Code is per se illegal and therefore, the judgment and order is liable to be set aside. Mr. Baruah has urged that in the facts and circumstances of the case, the benefit of doubt ought to have been extended to the accused appellants. According to him, the evidence on record bearing on the episode by no means establish abutment within the meaning of Section 306 of the Code and, therefore, the impugned conviction and sentence being not sustainable in law is liable to be set aside. Mr. Baruah has further argued that the trial court having acquitted the accused appellants of the charged offences, their conviction under Section 306, IPC by no means is permissible under Section 222 of the Criminal Procedure Code and on that count alone, the impugned judgment and order is liable to be set aside. In support of his submission, Mr. Baruah has placed reliance on the decisions of the Apex Court in Chanchal Kumari and Ors. v. Union Territory, Chandigarah AIR 1986 SC 752 , Sangaraboina Sreenu v. State of A.P. (1997) 5 SCC 348 , Hans Raj v. State of Haryana (2004) 12 SCC 257 and Kishori Lal v. State of M.P. (2007) 10 SCC 797 . 5. The learned Public Prosecutor in reply has urged that a combined reading of the evidence of the. PWs 1, 5 and 11 along with the dying declaration Ext. 6 unassailably demonstrates that the deceased had been compelled to take the extreme step in view of the continuous torturous treatment meted out to her by the accused appellants in tandem and, therefore, the impugned conviction and sentence being based on the materials on record cannot be faulted with in any manner. Mr. Kamar has urged that the trial court having decided against sentencing them under Sections 304B/498A, IPC, in absence of any demonstrable evidence of marriage between the deceased and the appellant No. 2, and not on the evaluation of the evidence in support of such charges, their conviction under Section306 of the Code is legal in law and that therefore, the contentions contrary thereto are flawed. In support of his arguments, Mr. In support of his arguments, Mr. Kamar has placed reliance on the decisions of the Apex Court in K. Prema S. Rai and Anr. v. Yadla Srinivasa Rao and Ors. (2003) 1 SCC 217 , and Anil Alias Raju Namdev Patil v. Administration of Daman & Diu, Daman and Anr. (2006) 13 SCC 36. 6. Before appraising the rival arguments so advanced, it would be expedient to have a brief survey of the evidence on record. 7. PW1, Rajib Saikia, brother of the deceased in his evidence on oath while claiming the marriage between the appellant No. 2 and her has stated about the ill treatment to her by the accused appellants. The witness also stated to have seen the scars of assault on her body. He further stated that the deceased used to tell them that the appellant No. 2 used to assault her in connection with dowry demands. The witness stated that the deceased however, expressed her disinclination to inform to the police apprehending that her marriage life would be marred thereby. The witness also testified about the deceased confiding in him that the accused appellant No. 2 at times denied food to her. The witness further stated that according to the deceased, on the night of the incident, while she was in the kitchen, she was attacked from behind for which she fell unconscious and that on regaining her senses, she found herself in flames. 8. PW2, Apurba Goswami, PW3, Putul Goswami are reported witnesses. PW4, Nabin Kalita is a seizure witness to the stove and diary. 9. PW5, Jitu Saikia is another brother of the deceased who more of less deposed in the same lines as PW1 with regard to the ill treatment meted out to the deceased out of dowry demands. He, however, stated that the deceased had disclosed to him that in the night of the incident, the accused appellant No. 2 assaulted her while she was in the kitchen for which she fell senseless and on regaining her senses, she found herself to be on fire. 10. PW6, Nanda Lal Sahu and PW7, Mamani Saikia are also seizure witnesses. 11. PW8, Dr Pulakananda Bharali stated that on 12.8.2000 he was serving as Medical and Health Officer at Jorhat Civil Hospital. On that day the deceased was admitted in the hospital with burn injuries. 10. PW6, Nanda Lal Sahu and PW7, Mamani Saikia are also seizure witnesses. 11. PW8, Dr Pulakananda Bharali stated that on 12.8.2000 he was serving as Medical and Health Officer at Jorhat Civil Hospital. On that day the deceased was admitted in the hospital with burn injuries. This witness stated about the statement made by the deceased which was recorded by the Officer-in-charge, Jorhat Police Station in his presence. He proved the dying declaration Ext. 6 with his signature Ext. 6(1) and Ext. 6(2) in endorsement of the right thumb impression of the deceased. This witness was not cross-examined by the defence. 12. PW9, Chandan Das, who at the relevant time was the Judicial Magistrate, 1st Class at Jorhat stated about the recording of the statement of Jinamai Saikia and Jitu Saikia under Section 164, Cr.PC and proved Exts. 5 and 7 respectively to the said effect. 13. PW10, Bandana Dutta Tamuli who at the relevant time was the Executive Magistrate at Dibrugarh deposed about her performing the Inquest over the dead body at Female Surgical Ward Nos. 3 and 4 of the Assam Medical College Hospital, Dibrugarh. She proved Ext. 4 the Inquest report with her signature Ext. 4(2). 14. PW11. Jinamoni Saikia sister of the deceased stated in categorical terms about the physical and mental torture meted out by the accused appellant No. 2 to the deceased on dowry demand. She, however, deposed that at the time when she met the deceased, she was not in a position to speak and therefore her evidence with regard to the episode is not forthcoming. 15. PW12, 14, 15 are the police officers associated with the investigation of the offence. 16. PW13, Dr Rituraj Chaliha had performed the postmortem examination over the dead body. He opined that the death was due to shock as a result of ante mortem flame burn injuries. Answering to the court, he opined that such injury can cause the death of a person. 17. DW1, Smt. Rita Das at the relevant time was a tenant in the house of the father of the accused No. 2 and was his neighbour. Oh the date of the incident at about 11 P.M. at night having come to learn of the episode, she rushed to the place of occurrence and found that the deceased was lying on the ground with burn injuries. Oh the date of the incident at about 11 P.M. at night having come to learn of the episode, she rushed to the place of occurrence and found that the deceased was lying on the ground with burn injuries. On enquiries she was told that the deceased had caught fire while cooking in the kitchen. She was also told that the accused appellant No. 2 had attempted to douse the flames with a gunny bag. The witness stated that later on the injured was removed to the hospital. 18. In her dying declaration, the deceased had stated that at about 12 at night on 11.8.2000 while she was cooking food in the kitchen, her wearing apparel caught fire as the kerosene oil split over the same. Then she intending to kill herself, poured some more kerosene oil as a result whereof she incurred severe burn injuries. The deceased stated that her husband had married twice, the first wife being named Lily. She stated that because of turmoil in the family, she was without food for last two days. She also stated that her husband used to assault her now and then. According to the deceased, her husband did not acknowledge her presence in the family and that he preferred the first wife, as a result whereof, she used to remain anguished and humiliated. She stated that since after the marriage, her husband has been torturing her in association with his first wife and, therefore, she thought to eliminate herself thinking her to be the cause of the trouble. She categorically stated that it was therefore that she poured kerosene on her body to kill herself She, however, admitted that on that date, her husband had not assaulted her. 19. The trial court as the impugned judgment and order reveals on an exhaustive evaluation of the evidence on record decided against their conviction under Section 304B and 498A of the Indian Penal Code on the ground that the deceased could not accepted to be the legally married wife of the appellant No. 2. In this regard, the learned trial court observed that in absence of proof of marriage between the deceased and the accused appellant No. 2, which is a condition precedent for the application of Section 498A, their conviction under the charged Sections was not permissible in law and therefore, it acquitted them therefrom. In this regard, the learned trial court observed that in absence of proof of marriage between the deceased and the accused appellant No. 2, which is a condition precedent for the application of Section 498A, their conviction under the charged Sections was not permissible in law and therefore, it acquitted them therefrom. The learned trial court, however, on the basis of the evidence on record, came to the conclusion that the accused appellants had abetted the deceased to commit suicide in terms of the explanation 2 to Section 107 of the IPC and that though they were not charged under Section 306 thereof, their conviction the render was possible as per Section 222of the Code of Criminal Procedure. 20. On a conjoint reading of the evidence of PWs 1, 5, 11 and dying declaration as outlined hereinabove, this Court is of the unhesitant opinion that in the facts and circumstances of the case, it has been proved beyond doubt that the accused appellants had by their conduct, behaviour and ill treatment meted out to the successfully induced her to develop a state of mind unrestrainably urging to end her life even by resorting to a painful and sordid step of self immolation. The parties, as the facts and circumstances disclose were not strangers, but inmates in the same house, In course of their continuous association and interactions, the deceased was subjected to unbearably cruel treatment on day-to-day basis. One can conceive of the intensity of mental agony and pain the deceased endured incessantly more particularly when the persecution was unleashed by the man with whom she had set out to lead her life and that too on the instigation of another lady in the house. This observation is not to nullify the determination of the trial court about the matrimonial relationship of the deceased and the accused appellant No. 2. But having regard to the set up of the family and the evidence on record in the estimate of this Court the cruel disposition the accused appellants was sufficient for the deceased to be desperate enough to eliminate herself. Her dying declaration does not admit of any doubt that she had taken the extreme step being driven by continuous intolerable ill treatment meted out to her by the accused appellants. 21. Her dying declaration does not admit of any doubt that she had taken the extreme step being driven by continuous intolerable ill treatment meted out to her by the accused appellants. 21. The decisions of the Apex Court relied upon on behalf of the accused appellants on the necessity of establishing inducement and instigation as a necessary precondition of suggesting any abetment of commission of suicide, in the facts and circumstances of the case are of no avail to them. 22. The decision of the Apex Court in Sangaraboina Sreenu, (supra), disapproving the conviction of the accused appellant under Section 306 of the Code he having been acquitted of the charge under Section 302 of the IPC is also out of place in the facts of the instant case. As alluded hereinabove, the accused appellants were relieved of their conviction under Sections 304B and 498A, IPC only on the ground of want of sufficient evidence of valid marriage between the accused appellant No. 2 and the deceased, evidence in support of the charge notwithstanding. On the other hand, the Apex Court in K. Prema S. Rao and Anr. (supra) in an almost similar fact situation had approved the conviction of the accused under Section 306, IPC though he had been charged initially under Section 498A and 304B of the Code. Their lordships in recording that finding observed with regard to Section 221 of the Criminal Procedure Code that an omission or defect in the framing of charge in a criminal case is not an impediment for convicting the accused for an offence which is otherwise found to be proved on the evidence on record. In the above view of the matter, the plea raised on behalf of the accused appellants that having regard to the charges framed against the accused appellants, the conviction under Section 306 IPC cannot be sustained, does not commend for acceptance. 23. On a totality of the considerations recorded hereinabove, this Court is of the view that no interference with the impugned judgment and order is called for. The appeal stands dismissed. Appeal dismissed.