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2010 DIGILAW 1397 (CAL)

Mohan Singh v. STATE OF WEST BENGAL

2010-12-03

ASIM KUMAR RAY

body2010
JUDGMENT 1. THIS appeal is directed against the judgment and order dated 29.9.2007 passed his Sessions Trial No. 33 of 2004 arising out of Sessions Case No. 63 of 2004 by learned Additional Sessions Judge, Durgapur convicting the appellant/accused under Section 498A of Indian Penal Code and sentencing him to suffer R.I. for two years and to pay fine of Rs. 1,000/- in default to suffer S..I for three months more. The appellant /accused was further convicted under Section 306 of the IPC and sentenced to suffer R.I. for five years and to pay a fine of Rs. 2,000/- in default to suffer S.I. for six months more. There was a direction that both the sentences shall run concurrently. 2. FACTUAL background in a nutshell is that on 22.1.200 around 10.30 hrs. Karam Singh, father of victim Manjeet Kaur lodged an FIR with Durgapur police station stating therein that his daughter Manjet was married to appellant/accused Mohan Singh as per Sikh religious rites and customs on 24.11.1997. In the said marriage gold ornaments worth Rs. 35,000/- and other household articles etc. were given to the bride, A sum of Rs. 40,000/- was kept in fixed deposit in the name of Manjeet. After marriage Mohan and Manjeet lived at Durgapur peacefully for 2/3 months. Thereafter Mohan started torture upon Manjeet both physically and mentally. He pressurised Manjeet to bring a further sum of Rs. 40,000/- from her father. Physical and mental assault to Manjeet in the form of abusive , insulting and provocative language was continuing. Manjeet gave birth to a male child out of her wedlock. On 8.1.2009 complainant got an information that his daughter had been admitted hi D.S.P. hospital, Durgapur with burn injury. She rushed to the hospital and came to know that she had been physically assaulted by her husband. She was pressurised for bringing more money. She, finding no option, set her ablaze and ultimately succumbed to her burn injury at the hospital on 20.1.2000. On the basis of that FIR, Durgapur P.S. Case No. 22 of 2000 on 22. 1. 2000 was registered. Charge sheet was submitted against the accused/ appellant Mohan Singh. He faced trial for the offence punishable under Sections 498A/304B/306 of IPC and was found guilty for the "offence punishable under Section 498A/306, IPC. He was convicted accordingly and sentence was passed against him . 3. MR. 1. 2000 was registered. Charge sheet was submitted against the accused/ appellant Mohan Singh. He faced trial for the offence punishable under Sections 498A/304B/306 of IPC and was found guilty for the "offence punishable under Section 498A/306, IPC. He was convicted accordingly and sentence was passed against him . 3. MR. Malay Kumar Das learned Counsel appearing on behalf of the appellant/accused has taken me through the body of the judgment, evidence on record specially dying declaration of Manjeet Kaur. He has invited my attention to the evidence of the mother of victim. He has contended that Manjeet Kaur could not speak Bengali and was not accustomed to speak Bengali but her dying declaration has been recorded by learned Executive Magistrate in Bengali; Therefore, the dying declaration on which the Court has relied on is not at all a statement of victim Manjeet Kaur. He has further contended that there is no note in the dying declaration that it was read over and explained to Manjeet. Time of recording of dying declaration is not also appearing from the said declaration. Therefore, the Court has arrived at an erroneous finding relying on such dying declaration. 4. MR. Das has further contended that there was no abetment to commit suicide by Manjeet Kaur. No independent witness stated about the torture inflicted on Manjeet by Mohan. One day incident cannot be treated as an abetment to commit suicide. He has relied on a decision reported in (2009) SCC (Cr) 578 and has contended that words 'uttered' in a fit of rage or emotion without any intention cannot be termed as 'instigation' and be treated as an abetment to commit suicide. He has submitted further that appellant/accused has already suffered three years to serve out the sentence." The impugned judgment and order of conviction may be set aside and appellant/accused may kindly be released. Mr. Swapan Kumar Mallick, learned Counsel appearing on behalf of the State has contended that dying declaration of the victim has depicted a clear picture and the learned Court below has relied upon it observing that It was recorded by an officer who cannot be disbelieved. He has submitted that it is a fact that the appellant/accused has already undergone sentence for 3 years and he has no objection if the sentence undergone by the accused is retained and the rest part is condoned. He has submitted that it is a fact that the appellant/accused has already undergone sentence for 3 years and he has no objection if the sentence undergone by the accused is retained and the rest part is condoned. At the tune of his contention the Mr. Mallick has referred a decision reported in (2010) 3 SCC (Cr) 367. He has particularly referred paragraph 21 of the said decision. 5. DURING trial as many as 16 witnesses have been examined and a series of documents have been exhibited. The FIR maker Karam Singh is the father of victim Manjeet Kaur. He has narrated the fact in details phase by phase during his examination as prosecution witness No 2. He has proved the FIR. He was present at the time of inquest of the dead body of his daughter. He was extensively cross-examined from the side of the defence. His evidence stood the acid test of cross-examination and remained as it is. Dharam Kaur is the mother of Manjeet. Her evidence fully corroborates with the evidence of her husband (P.W.2) on all points regarding physical and mental torture inflicted upon her daughter Manjeet by Mohan Singh. She has stated that Manjit expressed before her that she was given food for 2/3 days last and had been badly assaulted for more than once for not bringing money from her parental home. The situation went beyond her tolerance and as such she set herself on fire. Therefore, the substance of testimony of mother has practically echoed the evidence of her husband/ P.W.2. 6. SHRI Tapan Kumar Chattopadhyay, P.W.4 was a Deputy Magistrate Durgapur who held inquest over the dead body of Manjeet and prepared report. He has stated that father of deceased gave statement before him to the effect that the accused subjected his daughter with physically and mentally torture. The learned Sessions Judge has observed that it is a fact that a report of inquest is not a substantive piece of evidence still its utility and efficacy cannot be said to be nil. It has at least some value to be used for the purpose of corroboration where necessary. SHRI Ajoy Battacharjee is another 'Executive Magistrate who has been examined as Prosecution Witness No. 5, He has recorded the dying declaration of Manjit on 10.1.2000 at D.S.P. Main Hospital. It has at least some value to be used for the purpose of corroboration where necessary. SHRI Ajoy Battacharjee is another 'Executive Magistrate who has been examined as Prosecution Witness No. 5, He has recorded the dying declaration of Manjit on 10.1.2000 at D.S.P. Main Hospital. He has stated that he had been to the hospital following requisition by police and as per order of Sub-divisional Officer. He has categorically stated that Dr. Runu Mukherjee certified that patient was fully conscious while she gave her statement. He has proved the dying declaration (Ext.4) and the signature of victim Manjeet Kaur (Ext, 4/1). The learned Lawyer of the defence who was representing the appellant/accused before the learned Additional Sessions Judge, Durgapur extensively argued touching the dying declaration. He questioned the dying declaration and argued before the Court below that no weight be given to the dying declaration as it was recorded in Bengali, specially when the patient Manjeet Kaur did not know Bengali. The learned Court below has dealt with the said argument and has observed that the impartiality, honesty and efficiency of an officer of West Bengal Civil Service must not be ignored on the ground of said wonky and fragile plea. The dying declaration of the victim was scanned line by line and it has been observed that it has reprojected the entire substance of allegation which was coming out from the FIR. P.W.7 Bawa Singh, neighbour of de facto complainant. He has stated that he had occasion to hear about the family matter of de facto complainant. Mohan used to come to Burnpur and there were trouble and unrest in his conjugal right. He tried so that the spouse may leave peacefully. Mohan insisted Manjeet to encash the fixed deposit, but Manjeet declined on the ground that she had a son and the amount would be meant for his future. Mohan Singh inflicted both physical and mental torture upon Manjeet time and again for not encashing the fixed deposit. He heard all those things from Manjeet herself and her parents. He was substantially cross-examined from the side of the defence but his evidence remained unaffected. His evidence has perfectly corroborated the evidence of P.Ws 2,3,4 and 5. 7. P.W.8 Dr. Runu Mukherjee has stated that on 10.1.2000 he was attached to surgical department of D.S.P. Hospital. He heard all those things from Manjeet herself and her parents. He was substantially cross-examined from the side of the defence but his evidence remained unaffected. His evidence has perfectly corroborated the evidence of P.Ws 2,3,4 and 5. 7. P.W.8 Dr. Runu Mukherjee has stated that on 10.1.2000 he was attached to surgical department of D.S.P. Hospital. She was present at the time of recording the dying declaration of Manjeet Kaur by the Executive Magistrate at the hospital. It was recorded in her presence She gave certificate to the effect that the patient was fully conscious while she gave her statement. 8. PROSECUTION witness No. 9 Partha Pratim Roy is another Medical officer who has stated that on 8.1.2000 he was attached to D.S.P. Hospital where Manjeet Kaur was admitted having burn injury. He has proved the bed head ticket and admission slip of Manjeet Kaur. He has also stated that Dr. Gobinda Mondal, Dr. Kallol Saha, Dr. Avijit Sarkar and he himself conjointly prepared the treatment sheets. Prosecution witness No. 10 Dr. Gobinda Chandra Mondal has stated that he gave treatment to Manjeet Kaur after she was brought to the hospital on 8.1.2000 at 10.25 a.m. He himself recorded the history after hearing the same from the said patient i.e. Manjeet Kaur. According to the patient she set herself on fire after pouring kerosene oil on her body at 9 pm. following a quarrel with her husband. She also expressed before him that her husband used to quarrel with her and often beat her for more dowry. He has cross-examined at length but nothing adverse has been elicited. On the contrary, his evidence has corroborated the exhibit-8 i.e. bed head ticket containing the said statement. 9. P.W. 11 Dr. M.K.Nandy held post-mortem examination over the dead body of Manjeet Kaur. He has stated that death was due to asphexia and shock, ante- mortem in nature due to burn injuries. 10. P.W. 12 Gour Chandra Sarkar, P.W. 13 Guru Dayal Singh, P.W.14 Nemai Karmakar and P.W. 15 Soumya Bandopadhyay are formal witnesses. P.W, 16 Shri Chitta Ranjan Biswas is the police officer who conducted the investigation of the case and submitted charge sheet. He was substantively cross-examined from the side of the defence. 10. P.W. 12 Gour Chandra Sarkar, P.W. 13 Guru Dayal Singh, P.W.14 Nemai Karmakar and P.W. 15 Soumya Bandopadhyay are formal witnesses. P.W, 16 Shri Chitta Ranjan Biswas is the police officer who conducted the investigation of the case and submitted charge sheet. He was substantively cross-examined from the side of the defence. Several questions and suggestions challenging the veracity of his statements were put to him during such cross-examination but ultimately the result shows that barring a few trifle discrepancies, testimony of this witness remains intact and it lends a good support to the prosecution case. The learned Court below has analysed the evidence of other witnesses phase by phase and has arrived at a finding that, ""on overall appreciation of evidence on record, the Court has reasonable ground to hold that Manjeet Kaur was really subjected to physical and mental torture at her husband's house. There is credible evidence that she was subjected to physical / and mental torture by her husband on account of her failure to meet the demand of Rs. 40,000/- which was kept as fixed deposit in her name. Also there is evidence on record that her husband Mohan Singh was in the habit of restraining her from coming to paternal house. When she took attempt, her son was Snatched off from her. This is one of the example of mental torture upon her at her husband's place." 11. THEREFORE, the learned Court has arrived at a conclusion that the evidence on record as against the accused/appellant Mohan Singh is sufficient enough to hold him guilty under Section 498A of IPC for inflicting torture upon his married wife Manjeet Kaur. 12. THE evidence on record both oral and documentary have been scanned properly. It was discussed in length. Special reasons has been assigned. The argument touching the dying declaration has been squarely dealt with. The evidence on record inspire confidence to bring home the offence, punishable under Section 498A of IPC to the accused/appellant. Next the charge under Section 304 B of IPC was taken into consideration. The following tests were applied to see as to whether the said charge stood the trial or not : 1) Whether the death of the woman has been caused by burn or bodily injury or otherwise than under normal circumstances? 2) Whether such death has occurred within seven years of her marriage? The following tests were applied to see as to whether the said charge stood the trial or not : 1) Whether the death of the woman has been caused by burn or bodily injury or otherwise than under normal circumstances? 2) Whether such death has occurred within seven years of her marriage? 3) Whether soon before her death the woman has been subjected to cruelty or harassment by her husband or relatives ? and 4) Whether such cruelty or harassment or his for or in connection with demand of dowry? The evidence on record has qualified the first three tests in order to satisfy the conditions to attract Section 304B of IPC. The fourth test was elaborately discussed by the learned Court below. The evidence of independent witness was also scanned specifically wherefrom it has come out that accused/appellant Mohan Singh subjected his wife Manjeet to cruelty and harassment as she did not offer Rs. 40,000/- to him by encashing the fixed deposit standing in her name. The said demand of Mohan Singh was not considered as demand of dowry. At the time of discussion of the evidence of independent witness Bawa Singh (P.W.7), the evidence of P.W.3 (father) and P.W.2 (mother) were also discussed in details. It has been observed that they no where in their evidence have stated that there was any talk of dowry in the marriage between Mohan and Manjeet. However, it is an admitted position that Rs. 40,000/- was in the name of Manjeet Kaur in fixed deposit. Manjeet's father has stated in his cross -examination unambiguously that ornament, cash and household articles were given willingly. So the Court has arrived at a finding that passing of cash, kind and valuable security in the marriage between Manjeet and Mohan were in the nature of presentation but not dowry. The Court has also observed that by pressurizing the wife to hand over the amount of fixed deposit to him, appellant/accused did not act legally but the same by no-means can be equated with a demand of dowry. Cruelty and harassment" inflicted by him upon Manjeet for not handing over that amount cannot be held as an offence for or in connection with demand of dowry. Therefore, there was no scope to attract Section 304B of IPC. 13. Cruelty and harassment" inflicted by him upon Manjeet for not handing over that amount cannot be held as an offence for or in connection with demand of dowry. Therefore, there was no scope to attract Section 304B of IPC. 13. THE Court on the contrary, has arrived at a finding that victim was subjected to torture as well as harassment and as a result of such torture and harassment she has committed suicide. Therefore, it may be stated that in other way that Mohan has abeted Manjeet to commit suicide. It is now relevant to see Section 306 of IPC which deals with abetment of suicide and Section 107 of IPC which deals with abetment of a thing. "306. Abetment of suicide. If any person commits suicide, whoever abets the commission of such suicide , shall be punished with imprisonment of either description for a term which may extend to ten years , and shall also be liable to fine. 107. Abetment of a thing. A person abets the doing of a thing, who- First. Instigate any person to do that thing; or Secondly. Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy , and in order to the doing of that thing; or Thirdly, Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1A person who, by wilful misrepresentation , or by wilful concealment of a material fact which he is bound to disclose , voluntarily causes or procures , or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Explanation 2.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 facilitate the commission thereof, if said to aid the doing of that act." 14. HERE the dying declaration may be looked into once again. It appears that there was quarrel between husband and wife regarding encashment of fixed deposit. She was abused by her husband taking the name of her parents. She was slapped by her husband twice. He pressed her mouth. HERE the dying declaration may be looked into once again. It appears that there was quarrel between husband and wife regarding encashment of fixed deposit. She was abused by her husband taking the name of her parents. She was slapped by her husband twice. He pressed her mouth. The victim Manjeet in a fit of rage went to kitchen room, poured kerosene oil over her body, and set her on fire with the help of a match stick. She rushed to the bath room and tried to put of the fire by pouring water. Water was not sufficient. Husband brought the water in a bucket, poured the same over her body and tried to put of the fire. On analyses of this statement of victim it appears that the victim put herself on fire in a fit of rage. So the element to abet suicide and to instigate her to do that thing i.e. suicide is not coming at all. The Hon'ble Supreme Court in the decision reported in (2009)1 Supreme Court Cases (Cr) 578 has observed that it is fairly well settled that words uttered in a fit of anger or emotion without any intention cannot be termed as instigation. The victim has put herself on fire in a fit of anger followed by quarrel between herself in one hand and her husband Mohan Singh on the other. This attitude on the part of the victim cannot be treated that she has put an end of her life due to instigation at the instance of the accused i.e. her husband. The evidence has given a sense that he has committed suicide at the spur of the moment and, therefore, it cannot be said that Mohan has instigated her to commit suicide. The offence punishable under Section 306 of IPC does not stand after indepth appreciation of the evidence on record. I find no hesitation to express that the finding of the learned Additional Sessions Judge on that score is not at ail based on proper evidence on record. The prosecution case under Section 306 of IPC has not been proved. 15. AS a consequence of fact under such circumstances jotted hereinabove, I do find ample reasons to arrive at a decision that the judgment and order of conviction and sentence passed against the appellant/accused under Section 498A of IPC has been proved. The same be confirmed. The prosecution case under Section 306 of IPC has not been proved. 15. AS a consequence of fact under such circumstances jotted hereinabove, I do find ample reasons to arrive at a decision that the judgment and order of conviction and sentence passed against the appellant/accused under Section 498A of IPC has been proved. The same be confirmed. On the contrary, I find reason to express that the judgment and order of conviction and sentence passed against the accused/appellant Mohan Singh under Section 306 of IPC has not been proved and as such the same be set aside. 16. THE appellant accused has already undergone 3 years of imprisonment to serve out the sentence. The FIR against the accused was submitted on 22.1.2000 i.e. 10 years back and since then he was attending the Court and passed through pains and mental agony. The accused / appellant be set at liberty forthwith. Send down the lower Court record along with a copy of the Judgment for information and taking necessary action. 17. URGENT xerox certified copies of this order, if applied for, be given to the parties as expeditiously as possible.