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2009 DIGILAW 405 (CAL)

Indrani Ghosh v. STATE OF WEST BENGAL

2009-05-22

P.S.Datta

body2009
JUDGMENT: Partha Sakha Datta 1. THE learned Assistant Sessions Judge by his order dated 30th June, 2008 passed in ST Case No. 89/2008 rejected the petition of the two petitioners dated 15th May, 2008 for discharge from the case and the present application has been taken out under section 397/401 read with section 482 Cr. PC to challenge the legality of the said order. One Rupa Mallick, 15 years old, a resident of 19/1, Gopal Banerjee Lane under P.S. Howrah lodged an FIR with the Howrah P.S. being Howrah P.S. Case No. 3 dated 3rd January, 2008 alleging that at 9 p.m. on the preceding day namely, 2nd January, 2008 her sister Dipa Mallick returned from her maternal uncle's house. Half an hour thereafter the petitioner No. 2 who resides at 19/1, Gopal Banerjee Lane, her daughter-in-law Indrani Ghosh, the petitioner No. 1 and certain other persons entered into her house and dragged Oipa from the room by catching hold of her hand and started assaulting her at random by fists and blows. THE two petitioners stated that Dipa had committed theft from their house of money and valuable articles. THEy further addressed Dipa, saying you committed theft, how can you see your face' and then they departed. Her sister started weeping. Her mother returned from work and learnt of the incident and asked her sister not to go to the house of the petitioners. THEn at the early hours of the day at 4 a.m. on 3rd January, 2008 Dipa set fire to her body. 2. WHEN the FIR was registered under section 448/323/109/34 of the IPC, the victim was alive did not died. The victim died on 9th January, 2008. After completion of investigation the police submitted charge-sheet against the petitioners under section 448/323/306/109/34 of the IPC. As said above, a petition was filed by the petitioners praying for discharge from the case on the ground that the materials collected during investigation did not attract the provisions of section 306 of the IPC. Learned Trial Court rejected the prayer holding that the prima facie case was made out and framed charges and fixed dates of trial. It is the order dated 30th June, 2008 which is challenged in this application. 3. MR. Learned Trial Court rejected the prayer holding that the prima facie case was made out and framed charges and fixed dates of trial. It is the order dated 30th June, 2008 which is challenged in this application. 3. MR. Milon Mukherjee, the learned Advocate appearing for the petitioner submitted that given the definition of abetment as it appears from section 107 of the IPC which includes mental process of instigating a person or intentionally aiding a person in doing of a thing and a code of role which can be prescribed as instigating or aiding of doing thing, the present case does not present any picture prima facie of abetment allegedly committed by the petitioners in the house of the de facto complainant. The suicide committed by the victim cannot be said to be the result of any action of the petitioners nor can it said that the commission of suicide by the victim was the only recourse open to her due to action of the petitioners. There was no goading or solicitation or insinuation by any of the petitioners to the victim to commit suicide and the allegation only relates to assault being committed by the petitioners upon the victim which cannot be said to be proximate cause for abetting commission of suicide by the victim. It has been submitted by MR. Mukherjee that mere expression of certain words that the victim should die is not sufficient requirement of section 107; and consequently of section 306 of the IPC accusing the victim of commission of theft and abusing her could not have given a reasonable apprehension or possibility in the mind of the petitioners or in the mind of a reasonable and prudent mind that the victim would commit suicide. It cannot be said that given in the facts disclosed in section 173 Cr. PC papers the petitioners had any mens rea of committing abetment to the commission of suicide by the victim, MR. Mukherjee refers to the injury report of the victim where allegedly the victim said that following quarrel with her mother she inflicted injuries on her body. MR. Milon Mukherjee has relied upon the decisions in Sandip Bhattacharjee vs. State of West Bengal and Anr., reported in 2008(1) C Cr. LR (Cal )151; Annakali Dutta and Ors. vs. State, reported in 1990(2) CHN 38 ; (Cyriac, Slo Devassia and Anr. MR. Milon Mukherjee has relied upon the decisions in Sandip Bhattacharjee vs. State of West Bengal and Anr., reported in 2008(1) C Cr. LR (Cal )151; Annakali Dutta and Ors. vs. State, reported in 1990(2) CHN 38 ; (Cyriac, Slo Devassia and Anr. vs. Sub-Inspector of Police, Kaduthuruthy and Ans., reported in 2005 Cr. LJ 4322; Sohan Raj Sharma vs. State of Haryana, reported in 2009(1) SCC (Cri) 387; Kishori Lai vs. State of M.P., reported in 2007(3) SCC (Cri) 701; Bhagwan Das vs. Kartar Singh and Ors., reported in 2008(1) SCC (Cri) 664; Satvir Singh and Ors. vs. State of Punjab and Ans., reported in JT 2001(8) SC 208; Ramesh Kr. vs. State of Chhattisgarh, reported in JT 2001(8) SC 599; Netai Chandra Dutta vs. State of West Bengal, reported in 2005 SCC (Cri) 543; Protima Dutta and Arar.vs. State, reported in 81 CWN 713; Sashi Prabha Devi vs. State of Assam, reported in 2006 Cr. LJ 1762 and the decision Pawan Kr. Bhalotia vs. State of W.B., reported in 2005 SCC (Cri) 545. 4. MR. Manjit Singh, learned Advocate appearing for the O.P./de facto complainant submitted at the outset that it must not be forgotten that this is not a case where a petition of complaint or FIR is sought to be quashed under section 482 of the Cr. PC. It is case where the accused persons being unsuccessful with the prayer for discharge under section 239 Cr. PC have taken out the application under section 397/401 read with section 482 of the Cr. PC praying for discharge. It is submitted that when upon collection of materials charge-sheet has been submitted and the learned Trial Court by a reason order framed charges overruling the contentions of the petitioners it cannot be said that this is really a case where Court should exercise its jurisdiction to discharge the accused persons. MR. Singh refers to the decisions in State of M.P. vs. S. B.Johari and Ors., reported in 2000 SCC (Cri) 311; Om Wati and Anr. vs. State, reported in 2001 SCC (Cri) 685; Stree Atyachar Virodhi Parishad vs. Dilip Nathumal Chordia and Anr., reported in 1989 SCC (Cri) 285; State ofA.P. vs. Golconda Lingaswamy and Anr., reported in 2004 SCC (Cri) 1805 and the decision in Imadabathani Kalyani and Ors. vs. Immadabathini Venkata Subbamma and Anr., reported in 2006 Cr. LJ (NOC) 535 (A.P.): 2006(2) Andh LT (Cri) 233. vs. Immadabathini Venkata Subbamma and Anr., reported in 2006 Cr. LJ (NOC) 535 (A.P.): 2006(2) Andh LT (Cri) 233. Before we proceed to discuss the decisions cited by the learned Advocates for the parties it is necessary to go through the materials collected through investigation by the investigating agency. However, learned Advocate for the State Mr. Barin Roy submitted that when upon a conclusion of investigation charge-sheet has been submitted and the learned Trial Court upon rejection of the prayer for discharge of the petitioners framed charges and fixed a schedule of trial it is not appropriate that this Court should quash the entire proceeding. 5. CERTAIN statements are relevant. The victim sustained burn injury at 4 a.m. on 3rd January, 2008, while the incident took place at 9 p.m. on 2nd January, 2008. The accused persons entered into the house of the de facto complainant who is the sister of the victim and dragged the victim by catching hold of her hair and started assaulting her by slapping at random telling that she had committed theft of documents and money. Smt. Anita Mukherjee stated before the I.O. that when the accused persons started beating the victim her husband and sister-in-law asked them to lodge information with the police station but not to create a situation in the house. Then two accused persons said that 'a girl like her should not live'. Immediately the victim entered into the room and set herself to fire at 4 a.m. The statement of Bijoli Mallick reveals that having returned home she found the victim weeping. Her sister narrated to her the incident and told that by ascribing the victim to be a thief the accused persons told that the victim had burnt her face and such a thief must not live. Smt. Debika Chatterjee, Archana Sen made a detailed statement reproducing the languages used by the petitioners, as a result of which the victim entered into the room and then in the night she set herself to fire. Smt. Debika Chatterjee is the landlord of the house where the victim's family would reside. It has been stated by Debika that because of torture committed by the two petitioners the victim set herself to fire. It is the statement of one Nany Ray that the victim was taken out from by catching hold of her hair and while dragging her she was beaten. It has been stated by Debika that because of torture committed by the two petitioners the victim set herself to fire. It is the statement of one Nany Ray that the victim was taken out from by catching hold of her hair and while dragging her she was beaten. Before the learned Magistrate, the victim's mother Bijoli Mallick made a statement in details. Similarly the de facto complainant also made a statement before the learned Magistrate. Now so far as charges under section 448/323/34 of IPC is concerned, there cannot be any manner of dispute at least for the purpose of framing charge. The submissions of the learned Advocate for the petitioners centres round the charge under section 306 read with section 109 of the IPC. Section 109 IPC in a sense provides that it has to be proved that the act abetted was committed in consequence of the abetment. To constitute instigation one has to instigate another by provoking, or inciting or urging or encouraging doing of an act or keeping irritating until one reacts. A person instigating another has to goad, to urge, forward, the latter with intention to provoke or incite. Two acts are involved in the process of instigation. The physical act is goading or urging forward which can be committed by word expressed or act committed, and the mental act is intention to provoke. The decision in Sandip Bhattacharjee (supra) is in a fact situation where a school teacher committed suicide by taking poision and the allegation was that the Headmaster threatened to finish the service career of the teacher. Physical and mental act on the part of the Headmaster of the school was not apparently found out. In Annakali Dutta (supra), Phanibhusan committed suicide following an altercation with the accused persons over his share in the paternal properties. Phanibhusan's deadbody was found on a bench on the platform of Ramrajatala railway station. Facts were no more there. Chargersheet was submitted under section 120B/302/201/328 of the Indian Penal Code. With respect to charge of abetment in fact there were no materials. The materials related to other facts which are not necessary to traverse here. The decision in Cyriac has been cited. Learned Advocate for the petitioner in support of his submission that a word 'utter' in a feat of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. The materials related to other facts which are not necessary to traverse here. The decision in Cyriac has been cited. Learned Advocate for the petitioner in support of his submission that a word 'utter' in a feat of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. Mr. Mukherjee submitted that the accused persons did not really intended that the victim should commit suicide and the utterances expressed cannot come within the ambit of abetment. The decision in Sohan Raj Sharma (supra) is a decision rendered in appeal where the victim was mentally unsound and her suicidal note could not be taken to be an act of abetting suicide because at best it would reveal that her husband was a sexual pervert. The decision in Kishori Lal (supra) shows that there was a time gap of one month between the date of occurrence and arrival of the victim to the house of the accused and no evidence was led to show that accused was in any manner responsible for suicide. There was no marks of violence on the body. The decision in Bhagwan Das (supra) is a case of dowry death. The deceased did not leave any suicidal note. She was allegedly subjected cruelty and the High Court held that no charge under section 306/34 of the IPC could be made out. The decision in Satvir Singh (supra) relates to a case under section 498A/304B of the IPC but there was no evidence of either of the parties. Similarly in Ramesh Kumar (supra) no evidence of dowry demand could be produced and it was clearly held that the case was not one where the accused by his acts or omission or by a continued course of conduct create such circumstances that the deceased was left with no other option except to commit suicide. In Netai Dutta (supra) except referring to the name of the appellant at some places the suicide note did not make any allegation against the appellant to have committed any wilful act or omission or intentionally aiding or instigating the deceased in committing suicide and even there was no allegation by the complainant of the harassment of the deceased by the appellant. In such circumstances the proceeding under section 306 IPC against the appellant was held to be without any factual foundation. In such circumstances the proceeding under section 306 IPC against the appellant was held to be without any factual foundation. The decision in Protima Dutta (supra) centered round certain letters which were admitted in evidence under section 32 of the Evidence Act. Here in this case conviction of the mother-in-law was sustained but that of the husband set aside by the High Court. Lastly the decision in Sashi Prabha Devi (supra) was in a different fact situation. Except the decision in Sandip Bhattacharjee and Annakali Dutta the facts of which have no resemblance to the facts of the instant case, other decisions were rendered in appeal by the Supreme Court. 6. NOW the question is whether in the facts situation of the instant case the accused should be discharged on the premise that the utterances by the petitioners did not come within the parameter of section 107 of the Indian Penal Code. Certain decisions have been cited by Mr. Singh on behalf of the de facto complainant. In the decision in State of Andhra Pradesh vs. Golconda (supra) the principle was laid down that when FIR contained ingredients of the offence and does not appear to be mala fide, quashing of a criminal proceeding would not be justified. At paragrpah 10 of the judgment it was held with reference to R. P. Kapoor ( AIR 1960 SC 866 ) and State of Haryana vs. Bhajanlal, 1992 SCC (Cri) 426, it was held that at the time of framing charge evidence cannot be gone into meticulously and it is immaterial whether the case is based on direct or circumstantial evidence. Charge can be framed if there are materials about the commission of the offence no matter whether conviction was certainty or not. In Stree Athyachar Virodhi Parishad (supra) it was held that the word ground occurring in section 227 of the Cr. PC is not a ground for conviction but for a ground for putting the accused on trial and the Court therefore need not undertake an elaborate enquiry in shifting and weighing the material. Nor is it necessary to delve into the various aspects and what the Court has to consider is whether the evidentiary material on record would reasonably connect the accused with the crime. A caution was given to the High Court in this case. Nor is it necessary to delve into the various aspects and what the Court has to consider is whether the evidentiary material on record would reasonably connect the accused with the crime. A caution was given to the High Court in this case. It was held that if the Sessions Judge after hearing the parties framed charges and also makes an order in support thereof the law must be allowed to take its own course. Self-restrain on the part of the High Court should be the rule unless there is a glaring injustice starring the Court in the face. It was held that the opinion on any matter may differ depending upon the person who views it. There may be as many opinions on a particular matter as there are Courts but, it is no ground for the High Court to interdict the trial. In Om Wati (supra), it was held that High Court's interference is not called for when the Trial Court proceeds with the trial after framing of charge unless there is glaring injustice. In State of M.P. (supra) are it was reiterated that it is improper for the High Court to appreciate the evidence to arrive at a conclusion in the matter upon an application under section 397/401/482 of the Cr. PC. In Imadabathani Kalyani (supra), the accused persons came to the house of the deceased and insulted the deceased and his family members. The High Court declined to interfere under section 482 of the Cr. PC. Now coming to the facts of the instant case that the two petitioners came to the house of the de facto complainant, dragged the victim out of the room while beating at random attributing to her that she was a thief and such a thief must not live and her face had already been burnt down. A number of witnesses have said that the petitioners used the expression 'you must not live', there was a protest by the members of the family of the de facto complainant against.such insinuation and assault. The victim entered into the room and did not come out and then in the early hours of the day at 4 a.m. she set her body to fire. Mr. Mukherjee refers to the injury report where the victim allegedly stated that following a quarrel with her mother she set her body into fire. Mr. The victim entered into the room and did not come out and then in the early hours of the day at 4 a.m. she set her body to fire. Mr. Mukherjee refers to the injury report where the victim allegedly stated that following a quarrel with her mother she set her body into fire. Mr. Singh, learned Advocate for the O.P. submitted that veracity of this injury report is doubtful because the extensive statement of the victim's mother and the victim's sister made before the learned Magistrate under section 164 Cr. PC did not at all show that in the night there was at all any incident wherein the victim was rebuked by the mother. It is further submitted by Mr. Singh that the victim was seriously assaulted and told that she/should not live. The learned Trial Court reviewed a number of case laws and pointed out that there was a proximity of alleged abetment and the actual incident. The deceased had not enough time to think over and reflect as to whether she should commit suicide or not. It is difficult to gauze at this stage as to whether the mental act can be said to have been present in the instant case. The learned Judge framed charges by a reasoned order finding our prima facie materials. Trial commenced and at this stage I do not think that this Court should interfere and discharge the accused persons. 7. APPLICATION is dismissed. Trial be expedited. 8. URGENT xerox certified copy of this order, if applied for, be given to the parties as expeditiously as possible.