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2011 DIGILAW 913 (CAL)

Amir Sk. @ Kachai v. STATE OF WEST BENGAL

2011-07-12

KANCHAN CHAKRABORTY

body2011
JUDGMENT 1. THIS Appeal has been filed at the instance of Amir Sk. @ Kachai, the convict and is directed against the judgment and order passed on 5.8.1988 by the learned Sessions Judge, Burdwan, thereby sentencing the appellant to suffer R.I. for 7 years and to pay a fine of Rs. 2,000/- for committing the offence punishable under Section 306 of IPC and further sentence the appellant to suffer R.I. for a term of one year and to pay a fine of Rs. 1000/- for committing the offence punishable under Section 498A of IPC with a direction that both the sentences would run concurrently. 2. THE case of the prosecution in the learned trial Court, in short, is that the marriage between Arambanu @ Puti and the appellant Amir Sk. took place about 6 and 1/2 years ago from the date of filing of the FIR and in the said marriage, 10 cottas of landed property was given by the elder brother of Arambanu @ Puti. Arambanu was pressurized in her matrimonial house to bring money from her paternal house. She was subjected to physical and mental torture because of her failure to bring money to meet that demand. THE elder brother of Arambanu had given money time to time to the in-laws of Arambanu to solve the problem but everything was proved fruitless. On 16.10.2000, the elder brother of Arambanu received information that his sister Arambanu died after taking Poison. THE elder brother of Arambanu i.e. Sk.Surman strongly believed that his sister Arambanu @ Puti could not bear physical and mental torture inflicted on her by the appellant, her husband and other in laws and therefore, she commited suicide. She lodged one FIR with Memari Police Station which was registered as Memari Police Station Case No. 186 of 2000 dated 17.10.2000 under Section 498A and 306 of IPC. THE investigation into the case ended into a charge under Section 498A and 306 of I .P.C against the appellant Sk. Amir @ Kacnai, Sabera Bibi and Manija Bibi. THE learned trial Court framed charges under Section 498A/304 B and 306 of IPC against the Appellant Amir Sk. @ Kachai and Manija Bibi. Another accused Sabera Bibi died and, as such, no charge was framed against her. THE appellant Amir Sk. and co-accused Manija Bibi pleaded not guilty to the charges and claimed to be tried. Accordingly, the trial commenced. 3. @ Kachai and Manija Bibi. Another accused Sabera Bibi died and, as such, no charge was framed against her. THE appellant Amir Sk. and co-accused Manija Bibi pleaded not guilty to the charges and claimed to be tried. Accordingly, the trial commenced. 3. THE learned trial Court recorded evidence of 14 witnesses examined on behalf of the prosecution. No witness was examined on behalf of the appellant in course of trial. THE FIR, inquest report, seizure lists, sketch of the P.O., post mortem report etc. were admitted into evidence and marked exhibits on behalf of the prosecution. 4. UPON consideration of the evidence on record, oral and documentary, the learned trial Court found that the appellant committed the offence under Section 306 and 498A of IPC and accordingly, recorded his sentence by the judgement and order impugned. Another case accused Manija Bibi, however, was found not guilty to any of the charges framed against her. She was acquitted. 5. Another case accused Manija Bibi, however, was found not guilty to any of the charges framed against her. She was acquitted. 5. THE appellant has preferred this appeal on the following grounds:- a) that the learned trial Court failed to appreciate the evidence on record in its proper and true perspective; b) that the learned Court failed to take note of the fact that there were discrepancies in the facts stated in the FIR and the facts stated by the witnesses in course of trial on material points; c) that the learned Court erred in coming to a conclusion that the victim was subjected to physical and mental torture in her matrimonial house amounting to cruelty within the meaning of Section 498A of IPC; d) that the learned Court failed to consider that the witnesses made inconsistent statements which did not corroborate to each and other; e) that the learned Court failed to appreciate the immediate nexus of the incident alleged with the allegation of cruelty; f) that the learned Court ignored the evidence of the P.W. 8 and P.W. 11 without assigning acceptable reason; g) that the learned Court failed to take note that no opinion as to cause of death was given in the post mortem report and the Doctor who conducted the post mortem was not examined; h) that the learned Court also failed to take note of the fact that the FSL report was not placed before it in order to come to a conclusion whether the death of Arambanu was due to poisoning; i) that the judgment impugned being otherwise bad in law is liable to be set aside. 6. THE points to be considered in this appeal are whether the judgment impugned is sustainable in law and whether the judgment impugned is required to be interfered with in this appeal. 7. THE appellant has been convicted for committing the offence under Section 306 of IPC. Therefore, in the trial, the prosecution was under obligation to establish the following factual aspects : 1) the victim committed suicide; 2) that such commission of suicide by consequence of an abatement; 3) that abatement was made by the appellant/accused. 8. THE abatement is constituted by (1) instigating a person to commit an offence; or (2) engaging in conspiracy to commit it; (3) intentionally aiding a person to commit it. 9. 8. THE abatement is constituted by (1) instigating a person to commit an offence; or (2) engaging in conspiracy to commit it; (3) intentionally aiding a person to commit it. 9. THE prosecution is to lead direct evidence, if available, or circumstantial evidence to prove the complexity of the abator with all steps or transactions which led to the actual commission of the offence. Prosecution may lead evidence to prove/show conduct of the accused both before and after the commission of the offence. 10. MR. Iqbal Hossain, learned Counsel appearing on behalf of the appellant referred to the decision of the Apex Court in Kishangiri Mangalgiri Goswami v. State of Gujarat, (2009)4 SCC 52 : (2009)1 C Cr LR (SC) 853 and contended that in order to convict an accused under Section 306 of IPC, Court is to scrupulously examine the facts and circumstances of the case and assess the evidence adduced before it in order to find out whether the cruelty and harassment meted our to the victim had left the victim with no other alternative but to put an end to her life. 11. MR. Iqbal Hossain, learned Counsel has drawn my attention to the view of the Hon'ble Apex Court that merely on the allegation of harassment without their being any positive action proximate to the time of occurrence on the part of accused which led or compelled the person to commit suicide, conviction in terms of Section 306, IPC is not sustainable. 12. IN Amalandu Pal @ Jantu v. State of West Bengal, the Hon'ble Apex Court observed that the charges under Section 306 and 498A of IPC are independent of each other and acquittal of one does not lead to acquittal on the other. IN that regard the decision of Apex Court in Satpal v. State of Hariyana (1998)5 SCC 687 can well be referred to. The decision in Ramesh Kumar v. State of Chattrishgarh (2001)9 SCC 618 , referred to by Mr. Iqbal Hossain is also useful in this regard, 13. THE case of the prosecution is to be judged on the basis of evidence recorded by the learned trial Court and it is to be seen whether or not the essential ingredients of the offence under Section 306 read with Section 107 of IPC have been established by the prosecution. 14. IN the learned trial Court, prosecution examined as many as 14 witnesses. 14. IN the learned trial Court, prosecution examined as many as 14 witnesses. The FIR was lodged by Sk. Surman the elder brother of the victim Arambanu @ Puti. IN the FIR which was marked as Exhibit 1 it has been stated that her sister Arambanu was under pressure in her matrimonial house for bringing money and she was subjected to physical and mental torture in her matrimonial house. They tried to solve the problem by way of settlement but the torture intensified. On 16.10.2000, at 5 O'Clock the lodger of the FIR Sk. Surman came to know from people that Arambanu committed suicide by consuming poison because she could not bear torture any longer. 15. THE lodger of the FIR Sk. Surman was examined as P.W.1. Hestated that the appellant used to torture Arambanu by way of leaving his house and by way of taking food from his sister. THE P.W. 1 stated that the appellant used to make 'Ashanti' on the issue of dowry. THE matter was informed to the local political party but no fruitful result yielded. THE P.W. 1 stated further that the appellant, tortured Arambanu physically also. THE P.W. 1 was informed about he death of Arambanu by one Faktar. Being informed, he went to Memori police station and saw the dead body of Arambanu at Memori police station. However, he corrected his statement by stating that he had been to the matrimonial house of Arambanu and the dead body of Arambanu was brought out from the room of the appellant by the female members of the villager which, however, was not supported by any witness. 16. IN his cross-examination, he failed to say the contains of the FIR lodged by him. He stated further in his cross-examination that the appellant used to live out side the house and take meal in the house of his sister. Appellant was bad type of man because he did not reside in his house with Arambanu. 17. THE evidence of the P.W. 1, if read minutely, discloses that he had no definite knowledge about any incident of cruelty on the victim took place immediately before the victim committed suicide. He categorised the appellant as a bad man who killed Arambanu by way of deserting her. 17. THE evidence of the P.W. 1, if read minutely, discloses that he had no definite knowledge about any incident of cruelty on the victim took place immediately before the victim committed suicide. He categorised the appellant as a bad man who killed Arambanu by way of deserting her. One thing is very clear from the statement of the P.W. 1 that the appellant was not in touch with the victim either on the date of incident or immediately prior to that. In other words, there was no proximate nexus between the incident and conduct of the appellant. There was no overt act proximate to the time of occurrence from the side of the accused, which led or compelled the victim to commit suicide. 18. THE P.W. 2 is a member of local Gram Panchayat who knows the appellant as well as the victim. He has stated that there was 'Ashanti' in the matrimonial house of the victim and that 'Ashanti' was informed to him by the P.W. 1. He has stated also that the victim told him that her husband used to assault her and did not provide her with adequate food. THE P.W. 2 stated further that the victim told him that the appellant did not reside in the house but resided in her sister's house. In his cross-examination, the P.W. 2 admitted that he had no personal knowledge about the incidents took place in the matrimonial house of the victim. I find that the evidence of the P.W. 2 is not strong enough to come to a conclusion that the victim was subjected to physical and mental torture in her matrimonial house to such extent, that she had no alternative but to put to an end of her life by way of committing suicide. 19. THE P.W. 3 is a local man who knows the victim as well as the appellant. He stated that relationship between the appellant and Arambanu was bitter and there was ill feelings in between them. THE victim occasionally informed him that she was not given any importance by the appellant and the appellant did not discharge his duties towards the victim. He also stated that Armbanu committed suicide because of bitter relationship between herself and the appellant. In his cross-examination, the P.W. 3 has not, in fact, stated that that appellant subjected his wife Armbanu to physical and mental torture. He also stated that Armbanu committed suicide because of bitter relationship between herself and the appellant. In his cross-examination, the P.W. 3 has not, in fact, stated that that appellant subjected his wife Armbanu to physical and mental torture. He has not stated that the relation between them was so bad and bitter as to amount to cruelty as defined under Section 498A, IPC. It also appears from the evidence of P.W. 3 that there was no overt; act on the part of the appellant proximate to the time of alleged incident of suicide. 20. THE P.W. 4 is a local man he stated that the appellant and his inmates used to be ill treat and misbehave the victim and inflict torture on her. There was 'Ashanti' over dowry and the appellant did not stay in the house for sometime. In his cross-examination, the P.W. 4 has stated that the appellant was not present in the house at the time the incident of suicide had taken place. He was told by villagers that the appellant had gone .out side for the purpose of his work. He also admitted in his cross-examination that it was not possible for him to say as to what actually happened in the matrimonial house of the victim. 21. THE P.W. 5 is the mother of the victim. She has stated that her daughter Arambanu was subjected to torture in her matrimonial house. She was not given adequate food. She stated further that the appellant, used to assault Arambanu, Ultimately, Arambanu committed suicide. In her cross- examination, she stated that she disclosed everything about the torture and cruelty upon Aramlanu by the Appellant for the first time in Court. She did not talk to any body over the matter. THE P.W. 5, however, has not stated that the appellant used to reside and take meal in his sister's house in stead of staying with the victim and taking food cooked by her. 22. THE P.W. 6 one of the elder brothers of the deceased stated that there was 'Ashanti' in the matrimonial house of her sister. THE 'Ashanti' took place as appellant did not reside in the house and there was no other reason. 22. THE P.W. 6 one of the elder brothers of the deceased stated that there was 'Ashanti' in the matrimonial house of her sister. THE 'Ashanti' took place as appellant did not reside in the house and there was no other reason. THE evidence of P.W. 6 who happens to be one of the elder brothers of the victim does not supported the prosecution case that the victim was subjected to physical and mental torture as stated by the P.W, 1 and P.W. 5. THE P.W 6 has not also stated any where that Amanbanu, his sister, was pressurised for bringing dowry. He has not also stated that landed property and cash money was given to appellant to quel the fury of the appellant and inmates. 23. THE P.W. 7 is the scribe of the FIR. He had written the FIR at the dictation of Sk. Surman. THE P.W. 8, a local man, has stated that there was Jhagra' 'gondogoal' between the appellant and victim. In his cross- examination, he stated that the victim and the appellant had been leaving a good conjugal life. He also stated that victim was suffering from mental depression for not giving birth to a child. 24. THE P.W. 9 is the elder sister of the victim. She has stated that victim was not given adequate food and clothings by the appellant. She has stated further that the victim was assaulted on several occasions and everything was told to her by the victim. She could not give details of incidents narrated by the victim to her. She did not make any statement to the I.O. that the victim came to her house and expressed her grievance against the appellant. 25. THE P.W. 10 is a close relation of the victim. He has stated that the victim informed him that she was pressurised by the appellant and her mother-in-law for bringing money. He has stated further that the victim was driven out from her matrimonial house. THE P.W. 10 stated further that the appellant was in a habit of leaving his house without taking care of the victim. In his cross-examination, he has stated that the 'Ashanti' was cropped up due to living of the appellant outside the house. He has stated further that the victim was driven out from her matrimonial house. THE P.W. 10 stated further that the appellant was in a habit of leaving his house without taking care of the victim. In his cross-examination, he has stated that the 'Ashanti' was cropped up due to living of the appellant outside the house. P.W. 10 has not started that the victim informed him at any point of time that she was subjected to physical and mental cruelty in her matrimonial house by the appellant. 26. THE P.W. 11 another local person has stated that there was 'Ashanti' in between the couple to little extent. In his cross-examination he stated that the relation between them was good. 27. P.W. 12 is the I.O. of the case recorded the statements of the witnesses in course of investigation. He could not collect the viscera report but collected the P.M. report. He stated in his cross-examination that no incident of cruelty or torture inflicted on the victim prior to the date of incident was reported to the police station by any body. 28. THE P.W. 12 and P.W. 14 are police official who are not connected with the investigation into the case. 29. A careful perusal of the evidence of the witnesses examined by the prosecution in course of trial makes it abundantly clear that no one has seen any incident of alleged physical torture on the victim by the appellant. It is also revealed from the evidence of witnesses that the appellant was not present in house where the alleged incident of committing suicide had taken place on that particular date, He had gone out side for the purse of his work. No one could say what happened on the fateful dale. Merely on the allegation of harassment without their being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the victim to commit suicide, conviction in terms of Section 306 is not at all sustainable. I have already stated that in order to prove charge of abatement, prosecution is to establish (1) instigating a person to commit an offence or (2) engaging in conspiracy to commit it or (3) intentionally aiding a person to commit it. I find that none of the factors constituting offence of abatement has been established by the prosecution in course of trial. I find that none of the factors constituting offence of abatement has been established by the prosecution in course of trial. There is nothing on record to indicate that the appellant instigated the victim to commit suicide. There is also nothing on record to show that he engaged in conspiracy to commit the suicide by the victim or that he intentionally aided the victim to commit suicide. It can hardly be said that abatement was made by the appellant in the matter of committing suicide by the victim. I find that the learned trial Court did not at all appreciate the evidence on record in its proper and true perspective. When the appellant has not done any act of abatement, he can not be said to have committed any offence under Section 306 of IPC. I must say that the learned trial Court made an error in facts as well as in law in coming to the conclusion that the appellant has committed the offence under Section 306 of IPC. That findings of the learned Court, in my opinion, is not sustainable in view of evidence recorded by it. 30. IT is true that there is some evidence to the effect that the appellant did not provide the victim with adequate food and did not take care of her. But it is really doubtful whether he inflicted physical torture on the victim. Some of the witnesses, however, stated categorically that the relation between the appellant and the victim was bitter because appellant used to live and take meal his sister's house in stead of staying in his own house with the victim. In other words, those witnesses stated that the appellant had actually deserted the victim. That could be a ground, no doubt, for the victim to commit suicide. But, I find that another story has also stated by prosecution witness i.e. she was suffering from mental depression for not giving birth to a baby. This depression, if any, obviously can lead a married lady to commit suicide because the inherent desire of married lady like the victim to become mother of a baby was not found possible to be fulfilled by the victim. IT was a tremendous shock to a married lady and that may lead her to do anything. This depression, if any, obviously can lead a married lady to commit suicide because the inherent desire of married lady like the victim to become mother of a baby was not found possible to be fulfilled by the victim. IT was a tremendous shock to a married lady and that may lead her to do anything. At the same time, it can not also be said that because of desertion by her husband, she felt neglected and helpless. That might have led her also to commit suicide. However, what actually led her to commit suicide is hard to gather from the evidence on record. The prosecution case that she was subjected to physical and mental torture by the appellant for not bringing dowry has not been established by sufficient and satisfactory evidence. The definition of 'cruelty' as envisaged in Section 498A should be of that nature which is likely to drive the women to commit suicide or to cause grave injury or danger to life, limb or health ( whether mental and physical) of the women or harassment of women where such harassment is with a view to coercing her or any person related to her to meet any lawful demand for any properly or valuable security, is on account of failure by her or any person related to her to meet such demand. 31. AS far as the prosecution case of harassment of the victim by the appellant is concerned, I find that the evidence of the witnesses is entirely inconsistent even inconsistent with the facts stated in the FIR. The mother and brother of the victim have not supported that case of the prosecution. Almost all the witnesses remained silent regarding any such unlawful demand for any property or security on the part of the appellant. Rather, it appears chat the discontents between the wife arid the husband was for not living of the appellant in his house. I have stated already that there is no evidence to the effect that the victim have chosen to end her life because of that reason has not been established sufficiently and satisfactorily. The local witnesses, on the contrary, have stated that the husband and wife had been living happily and their conjugal life was good. I have stated already that there is no evidence to the effect that the victim have chosen to end her life because of that reason has not been established sufficiently and satisfactorily. The local witnesses, on the contrary, have stated that the husband and wife had been living happily and their conjugal life was good. At this juncture', it is to be kept in mind that none of the other witnesses who are closed-relations of the victim has witnessed any such incident of cruelty or harassment on the victim by the appellant. In fact, it is not expected also. But the local people who had been watching the conjugal life of the appellant and the victim regularly, have stated that they had been living a good conjugal life. That being the fact, it can not be sad that the prosecution has established the charge under Section 498A of IPC by sufficient and satisfactory evidence and to the hilt. The findings of the learned trial Court that the appellant has committed an offence under Section 498A is not well reasoned. I find that the learned Trial Judge discarded the evidence of neighbourers on the ground which does not appear to be reasonable one. The P.W. 1, P.W. 5 and P.W. 10 are elder brother, mother and closed relation, respectively, of the victim. They failed to state any specific incident of inflicting torture on the victim by the appellant. Not a single incident could be described by any of them. The P.W. 6, another elder brother of the deceased has not supported the prosecution case the victim was subjected to physical and mental torture as stated by the P.W. 1 and P.W. 5. The P.W. 5 the mother was examined by the I.O. in course of investigation. But, she has stated clearly in the Court that she did not narrate the incident of torture or cruelty on her daughter by the appellant to anybody prior to her examination in Court. If so, she did not disclose any such incident to the I.O. although was examined by the I.O. The P.W. 10 has introduced a new story by stating that the victim was driven out from her matrimonial house. That fact has not been stated by any of the witnesses even the P.W. 1 and the P.W. 5. If so, she did not disclose any such incident to the I.O. although was examined by the I.O. The P.W. 10 has introduced a new story by stating that the victim was driven out from her matrimonial house. That fact has not been stated by any of the witnesses even the P.W. 1 and the P.W. 5. The P.W. 10 has not stated that victim informed him at any point of time that she was subjected to physical and mental cruelty by the appellant in her matrimonial house. On the basis of evidence above, it can not be possible for the learned trial Court to come to a conclusion that the victim was subjected to 'cruelty' within the meaning of Section 498A IPC in her matrimonial house. I find that the learned Court failed to appreciate the evidence correctly and his findings can not be said to be correct. 32. IN the premises above, I find that this is a fit and proper case where the judgment impugned is liable to be interfered with in this appeal. The order of conviction of the appellant for committing offences under Sections 306 and 498A of IPC and order of sentence consequent thereto are not sustainable in law. 33. ACCORDINGLY, I allow the appeal. 34. THE appeal is, thus, allowed and disposed of. 35. THE judgment impugned is set aside. 36. THE appellant be discharged from the bail bond at once. Later: Let urgent xerox certified copy of this judgement, if applied for, be given to the learned Advocate for the parties upon compliance of necessary formalities.