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2011 DIGILAW 74 (CAL)

Saraswati Barman v. STATE OF WEST BENGAL

2011-01-19

KALIDAS MUKHERJEE, MD.ABDUL GHANI

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JUDGMENT KALIDAS MUKHERJEE, J.: 1. This appeal is directed against the judgment of conviction and sentence passed by learned Assistant Sessions Judge, 1st Court, Contai in Sessions Trial No. 1/December, 1993 sentencing the appellants to suffer R.I. for three years each under Section 498A I.P.C. and also to suffer R.I. for eight years each and to pay a fine of Rs.5,000/- each in default to suffer R.I. for 10 months each under Section 306 I.P.C. with the direction that both the sentences will run concurrently. 2. The case of the prosecution, in short, is that one Jagannath Barman lodged complaint with Contai P.S. alleging that his youngest daughter Uttara was married with Dhirendra Barman. Since one year after marriage her husband, elder brother of the husband and his wife Smt. Saraswati used to commit various types of physical and mental torture on Uttara for her lapses in household duties. Whenever Uttara came to her paternal house, she used to disclose about this torture. The informant requested the members of the family of the father-in-law of Uttara to come to an adjustment with Uttara, but, inspite of that they used to commit torture mentally and physically on Uttara. Being unable to endure the torture, Uttara committed suicide by taking poison on 30.3.87. She was admitted in Mugberia hospital where she died. 3. Upon receipt of the complaint, the Contai P.S. case No. 1 dated 30.3.87 was started and after completion of investigation the charge sheet was submitted. The learned Trial Judge framed charge under Section 498A and 306/34 I.P.C. to which the accused persons pleaded not guilty and claimed to be tried. 4. Mr. Debabrata Roy, learned Counsel appearing for the appellants submits that the incident occurred on 30.3.87 and the F.I.R. was lodged on 01.4.87. It is contended that the delay in lodging the F.I.R. speaks for embellishment and fabrication. Mr. Roy contends that the death occurred at Mugberia, Block Primary Health Centre (BPHC). It is submitted that from the evidence of the P.Ws it would appear that Uttara used to move hither and thither due to her mental dissatisfaction for not having any issue and the allegation of mental and physical torture is false. Mr. Mr. Roy contends that the death occurred at Mugberia, Block Primary Health Centre (BPHC). It is submitted that from the evidence of the P.Ws it would appear that Uttara used to move hither and thither due to her mental dissatisfaction for not having any issue and the allegation of mental and physical torture is false. Mr. Roy contends that there is no evidence on record to show that soon before her death she was subjected to cruelty or there was any nexus between the alleged acts of abatement and the commission of suicide. It is contended that there is nothing to show that cruelty was perpetrated to the deceased. It is submitted that there is no allegation of demand for dowry or any other purpose. Mr. Roy submits that from the evidence on record it would appear that Uttara had the habit of fleeing away from the house. 5. Mr. Roy contends that from the evidence of the P.Ws it would appear that the case was lodged for the refusal to return the articles given at the time of marriage. Mr. Roy contends that there is no mention in the charge that for the alleged torture committed on 30th March, 1987 she committed suicide. Mr. Roy further contends that the examination of the accused under Section 313 Cr.P.C. was not properly done. Mr. Roy has referred to and cited the decisions reported in AIR 2007 SC 2045 [Bhagwan Das Vs. Kartar Singh and others]; 2002 C.Cr.L.R. (SC) 779 [Sanju @ Sanjay Singh Sengar Vs. State of Madhya Pradesh]; 2002 C.Cr.L.R. (SC) 653 [Girdhar Shankar Tawade Vs. State of Maharashtra] and (2001)9 SCC 618 [Ramesh Kumar Vs. State of Chhattisgarh]. 6. Ms. Jharna Biswas, learned Counsel for the State submits that the F.I.R. was lodged as soon as the informant got information of the death of his daughter, and, as such, the delay in lodging the F.I.R. has been reasonably explained. Ms. Biswas has relied on the evidence of P.W. 1 P.W. 2 P.W. 6 and P.W. 7. Ms. Biswas submits that the P.Ws have stated about the torture both mental and physical committed by the appellants upon Uttara and the death occurred within seven years of marriage. Ms. Biswas submits that in such a case the presumption arising out of 113A of the Evidence Act should be drawn against the appellants. 7. P.W. 1 is the informant. Ms. Biswas submits that the P.Ws have stated about the torture both mental and physical committed by the appellants upon Uttara and the death occurred within seven years of marriage. Ms. Biswas submits that in such a case the presumption arising out of 113A of the Evidence Act should be drawn against the appellants. 7. P.W. 1 is the informant. He has stated that after three months from the date of marriage of Uttara the accused persons perpetrated cruelty upon her by assaulting her physically over the trifling domestic or household work; she was denied food and clothing; being aggrieved by the torture and cruel treatment of the accused persons Uttara came to his house for about 15/16 times. He has further stated that the matter was settled and Uttara was taken to her matrimonial home. It is in his evidence that Uttara could not bear the torture and cruel treatment perpetrated upon her and at last she ended her life by consuming poison. He has further stated that his son also signed in the written complaint. P.W. 1 has stated that on arrival at the house of the accused persons he demanded the ornaments and other articles which were given to the accused Dhirendra at the time of marriage, but, the accused persons did not return those articles and under such circumstances he lodged this case against the accused persons. P.W. 1 could not say on which date, month and year cruel treatment was perpetrated upon Uttara. He also could not say the date, month and year of the visit of Uttara to his house. 8. P.W. 2 is the son of P.W. 1. He has also stated that Uttara came to their house one month prior to her death and disclosed that accused persons had perpetrated cruelty upon her over trifling matters including the lapses in domestic work. He has further stated that Uttara died on 15th Chaitra, 1393 B.S. by consuming poison. It is in the cross-examination of P.W. 2 that the accused persons refused to hand over the ornaments given at the time of marriage inspite of demand raised by his father (P.W. 1). He has further stated that the aforesaid refusal of the accused persons was narrated to the public and the neighbours present there and upon such refusal to return the ornaments the case was lodged. 9. He has further stated that the aforesaid refusal of the accused persons was narrated to the public and the neighbours present there and upon such refusal to return the ornaments the case was lodged. 9. P.W. 3 did not support the prosecution case and he was declared hostile. 10. P.W. 4 was tendered by the prosecution and the cross-examination was declined. 11. P.W. 5 has stated in his examination-in-chief that the cause of death was that Uttara was puzzled as she had no issue and she used to visit hither and thither, although this witness was not declared hostile. In the cross-examination he has stated that Uttara passed her days nicely at her matrimonial home but as she had no issue she was mentally perturbed. 12. P.W. 6 could not say when Uttara made the statement before them implicating the accused persons. He could not also say when he met Uttara. 13. P.W. 7 is Shyamali Barman to whom Uttara allegedly made the disclosure about the cruel treatment. P.W. 7 has stated in her cross-examination that Uttara along with her husband Dhirendra Barman used to visit their house off and on and they visited their house several times. P.W. 7 has also stated in cross-examination that Uttara had the habit of fleeing away. 14. In the case of Sanju @ Sanjay Singh Sengar Vs. State of Madhya Pradesh (Supra) it has been observed by the Hon’ble Apex Court in paragraph 13 as follows:- “13. ………. Even if we accept the prosecution story that the appellant did tell the deceased ‘to go and die’ that itself does not constitute the ingredient of ‘instigation’. The word ‘instigate’ denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotion. ….………” 15. In the case of Bhagwan Das Vs. Kartar Singh and others (Supra) it has been observed by the Hon’ble Apex Court in paragraph 15 as follows:- “15. ………..It often happens that there are disputes and discords in the matrimonial home and a wife is often harassed by the husband or her in-laws. ….………” 15. In the case of Bhagwan Das Vs. Kartar Singh and others (Supra) it has been observed by the Hon’ble Apex Court in paragraph 15 as follows:- “15. ………..It often happens that there are disputes and discords in the matrimonial home and a wife is often harassed by the husband or her in-laws. This, however, in our opinion would not by itself and without something more attract Section 306 IPC read with Section 107 IPC.” 16. In the case of Girdhar Shankar Tawade Vs. State of Maharashtra (Supra) it has been observed by the Hon’ble Apex Court in paragraph 18 as follows:- “……….The legislative intent is clear enough to indicate in particular reference to explanation (b) that there shall have to be a series of acts in order to be a harassment within the meaning of explanation (b). The letters by itself though may depict a reprehensible conduct, would not, however, bring home the charge of Section 498-A against the accused………….” 17. From the evidence on record it would not appear that there was any instigation which could lead the victim to commit suicide. It is also clear that quarrel over the household activities would not amount to harassment. It would also appear from the evidence of P.W. 2 that Uttara last visited her paternal house one month prior to her death when she stated about the alleged ill treatment committed upon her by the appellants. This gap of one month clearly shows that the test of proximity in time is not coming in the aid of prosecution. Moreover, there is no evidence to show that there was any nexus between the alleged acts of abatement and the commission of suicide. On the contrary, from the evidence of P.W. 1 it is clear that he demanded the return of the ornaments and other articles given to accused Dhirendra at the time of marriage and as the same were not returned, he lodged this case against the accused persons. P.W. 2 also stated that the accused persons refused to hand over the ornaments of the marriage inspite of the demand raised by P.W. 1 and upon such refusal the case was lodged. 18. P.W. 2 also stated that the accused persons refused to hand over the ornaments of the marriage inspite of the demand raised by P.W. 1 and upon such refusal the case was lodged. 18. Having regard to the evidence on record and after giving anxious consideration to the submissions made by the learned Counsel for the parties we are of the considered view that the prosecution has failed to prove the charges against the appellants. The appellants are, therefore, found not guilty of the charges levelled against them. We set aside the impugned judgment. The appellants are acquitted of the charges. The appeal is allowed. 19. Let a copy of this judgment along with the lower court records be sent down to the learned Court below immediately. 20. Urgent Photostat certified copy, if applied for, be handed over to the parties as early as possible.