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2011 DIGILAW 1359 (CAL)

Girish Chandra Barman v. STATE OF WEST BENGAL

2011-09-28

G.C.GUPTA, RAGHUNATH RAY

body2011
JUDGMENT GIRISH CHANDRA GUPTA 1. THIS appeal is directed against a judgment and order dated 21st September 2006, by which the learned Additional Sessions Judge, Fast Track Court, Dinhata in Sessions Case No. 61 of 2006 corresponding to Sessions Trial No. 3 (May 2006) 2006 convicted the accused-appellant of an offence punishable under Sections 498A/306 of the Indian Penal Code and sentenced him to rigorous imprisonment for 3 years for the offence punishable under Section 498A IPC and further sentenced him to rigorous imprisonment of 10 years for the offence punishable under Section 306 of the Indian Penal Code and further sentenced to pay fine of a sum of Rs. 3000/- and 6000/- respectively, in default to undergo further imprisonment. Two of the accused persons namely Harish Ch. Barman and his wife Kalpana Barman were acquitted of the aforesaid charges. 2. The facts and circumstance of the case briefly stated are as follows: - THE deceased Anita died of poisoning on 24th September, 1999. A written complaint was lodged by the father of the deceased on 28th September, 1999 alleging that the marriage took place before 7/8 years from the date of the alleged incident. During the period of 3/4 years after the marriage the couple lived peacefully. Thereafter the accused-appellant demanded a sum of Rs. 10,000/- by way of dowry which the de facto complainant was unable to pay. Consequently the victim was tortured both physically and mentally. The accused Harish Ch. Barman and Kalpana Barman aided and assisted the appellant in committing the torture. The de facto complainant had been able to ascertain that on 23rd September, 1999 during the night all the accused persons assaulted the deceased very severely and provoked her to commit suicide. It was alleged that there was an illicit relationship between the accused-appellant and the accused Kalpana Barman the wife of the accused Harish Ch. Barman. The case was investigated and all the three accused persons were charge sheeted and tried which ultimately culminated in conviction of the accused-appellant. The learned Trial Judge in convicting the appellant advanced the following reasoning:- In the present case, the parents of the victim, who are very poor, have deposed that there had been no trouble in the life of the victim during the first seven years after her marriage, but, thereafter, trouble started with the demand of Rs. The learned Trial Judge in convicting the appellant advanced the following reasoning:- In the present case, the parents of the victim, who are very poor, have deposed that there had been no trouble in the life of the victim during the first seven years after her marriage, but, thereafter, trouble started with the demand of Rs. 10,000/- by the husband of the victim, who was treated with physical assaults by her husband, until and unless, she could bring the money, and she failed because of the poverty of her father, undeniably and she faced more assault and she found the only route of escape, i.e. by committing suicide, extinguishing her own life, because, she had no pleasure or attraction in living any more, because her own husband was using her to extort money from her poor father. This situation, requires to be perceived by a Court of law, in order to, comprehend the reasons of committing suicide by helpless women and deliver justice to the aggrieved and act as a deterrent forced preventing such crimes. The parents of the victim, did not falsely accuse their son-in-law, by exaggeration of torture and death within seven years of the marriage to attract section 304B of the I.P.C or, any imaginary story of torture, but, with only, what they experienced, either having seen personally, or, hearing from their daughter, the victim. So, I consider the evidence of the parents of the victim as reliable and trustworthy as recorded before me. I have found that, particularly, their allegation of torture by their son-in-law on the victim, on demand of Rs.10,000/- has been proved beyond reasonable doubt. They have explained that because of their poverty they could not meet up the demand of their son-in-law (accused) and that, how their daughter(victim) suffered torture for their inability to pay that money to her husband. That situation, a compelling circumstances under which the victim suffered, has to be realized by this court, in order to render justice to the victim also along with, to the accused, as per law. It is the general strategy and tactics of offenders of crimes to take a defence, based on creating confusion as to the charge and evidence against them. It is the general strategy and tactics of offenders of crimes to take a defence, based on creating confusion as to the charge and evidence against them. Therefore, to establish the truth and deliver justice effectively, it is required that the Court of law should weigh the evidence in its entirety, and in the back ground of the prevalent circumstances at the time of the occurrence, as explained the discussed already. In the above stated context, firstly, it is proved beyond reasonable doubt that, the victim committed suicide after seven years of her marriage, and so, Section 304B of the I.P.C. can not be attracted to this case, but, the principle of Section 113B of the Indian Evidence Act, inviting presumption as to the offence committed by the accused, unless rebutted by them, is still applicable. Because, such a death occurred just a little beyond the statutory period of seven years after the marriage and that, prior to her suicide, she was physically assaulted, and that, she suffered torture, at the hands of her husband, who was the most interested person to inflict such torture and gain unlawfully, and from whose conduct, by way of her second marriage, after the suicidal death of his first wife (victim), the apathetic mentality of that husband, along with the allegation of torture compelling the victim to commit suicide, all are established. But, the necessary ingredients of bride torturing and abatement to suicide of the victim, in respect of the remaining accused are wanting, and therefore, considering the law of strict proof, and in the light of the previously mentioned teachings of the Honorable Apex Court, I hold the accused Husband Girish Ch. Barman as guilty under Section 498A and 306 I.P.C. respectively for inflicting cruelty and torture to his wife Anita Barman (victim) and abetting the victim to commit suicide. It would appear that the learned Trial Judge proceeded on the basis a) that the demand for a sum of Rs. 10,000/- and the allegations of torture against the son-in-law the appellant before us were proved beyond reasonable doubt; b) that prior to the suicide the victim was physically assaulted by the appellant and c) the fact, that the accused-appellant contacted a second marriage soon after the death of the victim, was a pointer illustrating the mental make up of the accused-appellant. Mr. Mr. Amalesh Roy, learned Advocate for the appellant submitted that there was no evidence to show that the suicide was preceded by assault. He added that in any event mere harassment due to differences between the couple cannot amount to abetment for the purpose of conviction under section 306 of the Indian Penal Code. In support of his submission he relied on the judgment in the case of Bhagwan Das Vs. Kartar Singh reported in AIR 2007 (11) SCC 205 . 3. The second submission was that there is nothing on the record to show that the appellant ever instigated the victim to commit suicide. In support of his submission he relied on the judgment in the case of G.M. Reddy Vs. State of Andhra Pradesh reported in AIR 2010 (1) SC 750. He relied on paragraphs 13 and 17 of judgment wherein the following views were taken: - In State of W.B. V. Orilal Jaiswal this Court has cautioned that the court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it appears to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences 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 of abetting the offence of suicide should be found guilty. 4. ABETMENT involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 I.P.C there has to be a clear mens rea to commit the offence. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 I.P.C there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he committed suicide. Mr. Roy added that no positive act on the part of the appellant was established by the prosecution in this case. The last submission of Mr. Roy was that there was no believable evidence on the record to show that the alleged demand for a sum of Rs. 10,000/- or any other amount was ever made by the appellant. Mr. Roy, learned Public Prosecutor appearing for the state submitted that the conduct of the appellant is not consistent with his innocence which according to him are as follows :- (A) The appellant fled away after dumping the victim at the hospital which is inconsistent with his innocence. (B) The victim was even assaulted in the presence of her father. (C)The appellant contacted the second marriage soon after the incident. (D) There is evidence on the record to suggest that there was illicit relationship between the appellant and the accused Kalpana. (E) There is evidence for demand of dowry. (F) There is evidence to show that the victim was not hospitalised instantaneously nor was any information in that regard supplied and finally the facts and circumstances in which the victim committed suicide being in the special knowledge of the appellant, it was his duty to explain the same which is altogether lacking. He therefore, submitted that the conviction should not be interfered with and the appeal should be dismissed. We have considered the rival submissions advance by the learned Advocates. We are inclined to think that there is substance in the submission advanced on behalf of the appellant by Mr. Amalesh Roy. To begin with the father of the deceased did not know who had drafted the written complaint which he admitted during his cross-examination. We have considered the rival submissions advance by the learned Advocates. We are inclined to think that there is substance in the submission advanced on behalf of the appellant by Mr. Amalesh Roy. To begin with the father of the deceased did not know who had drafted the written complaint which he admitted during his cross-examination. He deposed that I am unable to mention the name of the person who drafted my F.I.R. He also admitted during the cross-examination that I do not know as to the contents of this F.I.R. as, I do not know to read, and I am an illiterate person. The written complaint was accepted by the Inspector-In-Charge of the Kaliagung P.S who was examined as P.W.13. He admitted during his cross-examination the thumb impression of the F.I.R. maker was not given in my presence. The de facto complainant during his deposition stated that during the first seven years the couple lived happily. It would thus appear that the written complaint which was the basis of the criminal case did not contain a contemporaneous version of the de facto complainant. The second important fact is that the period which elapsed between the date of the marriage and the date of death of the victim is uncertain. The date of marriage has not been disclosed by either of the parents of the deceased. P.W.1, the father of the victim, deposed in the Court on 15th June, 2006 that nearly 14 years ago the marriage took place. On that arithmetic the marriage may be computed to have taken place on or about 15th June, 1992. The death took place on 24th September 1999. On that basis one can say that about 7 years had already elapsed from the date of marriage which the P.W.1 confirmed as follows:- after her marriage she lived together with her husband for a period of about seven years. Two daughters and a son were born out of their marriage. In his cross-examination he also confirmed that It is a fact, that during the first seven years of her marriage, she was living peacefully, till the trouble started as I have told already. He also affirmed during his cross-examination as follows: The children of my daughter are under the custody of my son in law staying at their house. In his cross-examination he also confirmed that It is a fact, that during the first seven years of her marriage, she was living peacefully, till the trouble started as I have told already. He also affirmed during his cross-examination as follows: The children of my daughter are under the custody of my son in law staying at their house. He also asserted as follows : I asked as to the well being of my grand children, even after the death of my daughter. It is a fact that during such visit limited to the outside area of the house of the accused, I was not ill-treated by the accused persons, during my enquiry about my grand children. As regards the alleged demand for money by way of further dowry he deposed as follows:- I can not recall the date of demand of money now. Only, senior persons of our village were told by me, about such demand of money. The mother of the deceased (P.W.2) deposed as regards the demand that The demand of money had been raised, about two years prior to her death. 5. The P.W.1 admitted that for a period of 7 years the couple lived happily. He deposed that the cause of discontent was the demand for Rs. 10,000/- which they could not meet and therefore the deceased was tortured. The deceased, it appears, died within 7 years and 3 months at the highest. The evidence of the mother of the deceased that the demand for money was made 2 years prior to her death has made the case of the prosecution suspicious. Considering that the father of deceased did not even know who had drafted the written complaint and what was written therein, we are inclined to believe that the written complaint was lodged guessing grounds for the death which may not have any basis in fact and reality. The alleged demand and the alleged torture due to non-fulfillment of the alleged demand for money is not believable. The second ground assigned by the learned Trial Court, as regards physical torture and severe assault on 23rd September, 1999, is also not supported by the evidence on the record. The P.W.3 the younger brother of the deceased deposed that the victim had been subjected to physical assault in the morning of 24th September, 1999 by all the accused persons. The second ground assigned by the learned Trial Court, as regards physical torture and severe assault on 23rd September, 1999, is also not supported by the evidence on the record. The P.W.3 the younger brother of the deceased deposed that the victim had been subjected to physical assault in the morning of 24th September, 1999 by all the accused persons. But he admitted in his cross-examination that he visited the matrimonial house of the deceased for the last time 2 months before the date of the incident. Therefore, he could not have any personal knowledge whether the victim was assaulted on 24th September, 1999. Only other witness who furnished such an information is the P.W.6. She was declared hostile and she was cross-examined by the prosecution with the leave of the Court. During such cross-examination it was suggested to her that she had told the police that the victim was assaulted on 23rd September, 1999 in the night by the appellant and the other two accused persons which she denied. On the top of that the autopsy surgeon did not find any mark of injury on the person of the deceased which rules out the case of any assault severe or otherwise prior to the death. The P.W.10, as a matter of fact, in his examination-in-chief itself deposed that on examination no injury mark could be detected which is also borne out by the Post Mortem report. 6. The second marriage of the appellant has been commented upon by the learned Trial Court and that has also been considered as an important piece of evidence to show the conduct and mental make up of the appellant. But he did not notice the fact that there was nothing on the record to show the date when the second marriage was contacted. He also did not take into consideration that the deceased had left three minor children. The records do not disclose that there were parents of the appellant to look after them. The elder brother and his wife were the co-accused in this case. In any event, the elder brother and his wife cannot be expected to look after the minor children of the appellant. P.W.1 has admitted which we have noticed above that the children were with the accused/appellant himself. The elder brother and his wife were the co-accused in this case. In any event, the elder brother and his wife cannot be expected to look after the minor children of the appellant. P.W.1 has admitted which we have noticed above that the children were with the accused/appellant himself. The learned Trial Judge obviously did not take into consideration the fact that some one was required to be at home to look after the children. Therefore, the 2nd marriage without anything more should not have been considered as a peace of evidence militating against the appellant. The P.W.2 the mother of the deceased during her examination-in-chief deposed as follows : My son-in-law, Girish had illicit affairs with Kalpana and that was a cause for torture to my daughter. Girish married twice after the death of my daughter of poisoning. On behalf of the defence a suggestion was given to the P.W.2 that her deposition as regard the torture and illicit affair were untrue which she denied. Whether the appellant married twice after the death of the victim as deposed by the P.W.2 could have been ascertained from the appellant when he was examined under Section 313 of the Code of Criminal Procedure but the learned Trial Court misunderstood the scope of Section 313 of the Code of Criminal Procedure and did not put to him the relevant evidence at all. All that he did during the perfunctory examination under Section 313 of the Code of Criminal Procedure was as follows : - Question will you answer willingly on the evidence already made? and you know that you are not bound to answer and it will be used against You. Answer : No. Question : do you adduce any defence evidence ? Answer : No. It did not occur to the learned Trial Judge that unless the incriminating evidence was put to the accused the same would lose much of its value. All the points which found favour with the learned Trial Court have thus been disposed of. The submissions made on behalf of the state that the appellant had fled away is obviously based on the following evidence adduced by the P.W.1 in his examination-in-chief, while they were carrying my daughter after her consuming poison, towards the hospital, taking a course in front of my house. The submissions made on behalf of the state that the appellant had fled away is obviously based on the following evidence adduced by the P.W.1 in his examination-in-chief, while they were carrying my daughter after her consuming poison, towards the hospital, taking a course in front of my house. I asked them to wait for a while, but they went to the hospital and fled away. Arriving at the hospital, I found the dead body of my daughter at the hospital. The aforesaid evidence does not suggest that the appellant or for that matter any of the accused persons fled away from the scene. All that is suggested is that they did not wait for the P.W.1 to join them and they rushed to the hospital. That by no means is an incriminating circumstance. Reference in this regard may be made to the views expressed in Rahman Vs. State of U.P. reported in 1972 (4) SCC (Notes) 6 wherein the Apex Court opined that absconding by itself is not conclusive either of guilt or guilty conscience. For, a person may abscond on account of fear of being involved in the offence or for any other allied reason. On the top of that, the appellant did not have an opportunity to explain the circumstance because this was never put to him. The learned Trial Court has also bid stress upon the fact that the hospitalisation of the deceased was delayed by 30 minutes. This concept of delay of 30 minutes was introduced by P.W.6 a hostile witness. Even the P.W.6 did not suggest that the hospitalisation was delayed. All that she deposed on the day of the occurrence I went to Anitas house having heard screming and found that Anita had taken poison. She was kept thereafter taking poison for half an hour, at that house. 30 minutes is not such a long period that one may be inclined to think that it might have been intentional. The period of 30 minutes is likely to expire before the inmates could have followed as to what had happened and what should be done. The prosecution did not bring any witness from the hospital. There is no evidence on the record to suggest that the victim could have been saved had she been brought to the hospital earlier. We are as such unable to take this factor as an incriminating one. The prosecution did not bring any witness from the hospital. There is no evidence on the record to suggest that the victim could have been saved had she been brought to the hospital earlier. We are as such unable to take this factor as an incriminating one. The second submission of the learned Advocate for the state that the victim was assaulted in the presence of her father is again not believable. P.W.1 in his examination-in-chief deposed as follows :- Nearly, more than a month before her death, I saw my daughter being assaulted by the accused persons in course of my visit to her house and learnt that she was being assaulted for my failure to pay that money. In his cross-examination he admitted that having been informed by my daughter as to the demand of money, by her husband, and the torture for her failure to bring that money, I did not go to the house of the accused. We as such have no doubt in our mind that P.W.1 was not telling the truth as regards the reason which might have led the victim to commit suicide or as regards the alleged demand or the alleged assault. The alleged illicit relationship between the appellant and the accused Kalpana was not even believed by the Trial court. There is in fact no material to find any such thing. The submission advanced by the learned Counsel for the State that the accused persons owed a duty to explain under Section 106 of the Evidence Act which they failed to discharge may have some substance but for that the appellant is not at fault. The learned Trial Court mistook the scope of Section 313 Cr.P.C and did not even put the incriminating evidence to the appellant and the other accused persons. There was as such no scope for them to offer any explanation. 7. The learned Trial Court appears to have read the judgment in the case of Jahira Adbudullah Sq. Vs. State of Gujarat wherein their Lordships pressed the need to ensure fair trial. He may also have read the judgment in the case of Kundulobala Vs. State 1993(2) SCC 684 wherein it was opined that the Courts were expected to be sensitive in the cases involving crime against women. Vs. State of Gujarat wherein their Lordships pressed the need to ensure fair trial. He may also have read the judgment in the case of Kundulobala Vs. State 1993(2) SCC 684 wherein it was opined that the Courts were expected to be sensitive in the cases involving crime against women. But he does not appear to have followed that the requirement to be sensitive is there at all the stages of the trial. There are provisions in the Code of Criminal Procedure as also in the Evidence Act which enable the Trial Court to take an active role as a Judge during the trial in eliciting the truth. One has to be sensitive at all the stages. 21. The learned Trial Court cannot become sensitive for the first time, at the time of writing the judgment. For the reasons aforesaid the impugned judgment and order cannot be sustained and is therefore set aside. The accused-appellant is released of the bail bond furnished by him. Let a copy of this judgment be forwarded to the learned Trial Judge Sri R.K. Gupta. It is once again reiterated that Courts are required to be sensitive which means amongst other things that Court should not start with a desire to find fault with the case of the prosecution. Court should try to elicit the truth and punish the guilty. But the need for appropriate evidence can hardly be over emphasized. 8. LOWER Court Records along with a copy of this judgment be sent down to the learned trial Court forthwith. Urgent xerox certified copy of this judgment, if applied for, be delivered to the learned Advocates for the parties, upon compliance of all formalities.