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2012 DIGILAW 1344 (GAU)

Kajal Datta @ Ujjal v. State of Tripura

2012-12-18

SUBHASIS TALAPATRA

body2012
JUDGMENT Subhasis Talapatra, J. 1. Heard Mr. R. Datta, learned counsel appearing for the appellant as well as Mr. P. Bhattacharjee, learned Additional Public Prosecutor appearing for the State. This is an appeal under Section 374 of the Criminal Procedure Code, 1973 (hereinafter referred to as Cr.P.C.) against the judgment and order of conviction and sentence dated 23.03.2012 as passed by the Additional Sessions Judge, South Tripura, Belonia in Sessions Trial No. 03(ST/B) of 2012 under Section 306-of the Indian Penal Code (hereinafter referred to as 'IPC'). 2. It is to be noted that the appellant has been sentenced to suffer RI for 5 years and to pay a fine of Rs.1,000/- in default of payment of fine to suffer further RI for one month for commission of offence under Section 306 of the IPC. 3. For appreciation of the challenge as projected in the appeal, the relevant factual matrix requires to be briefly laid. One Payel Mahajan (PW-3) filed a written ejahar to the Officer-in-Charge, Belonia Police Station on 13.05.2011. However, it appears from the FIR that the said ejahar was received on 14.05.2011 and the Belonia PS Case No. 74 of 2011 was registered under Sections 326/307 of the IPC. A G.D. Entry was made at the instance of the PW-3 in the Hrishyamukh out post on 13.05.2011. The said outpost received the written ejahar and forwarded it to the Belonia PS since the alleged occurrence took place within the territorial jurisdiction of the said PS. In the written ejahar, the PW-3 alleged that there had been attempt to kill her mother, namely, Bakul Mahajan (Datta) by pouring kerosene oil after fastening her hands and mouth with cloth and setting her ablaze. She was being treated at GBP Hospital, Agartala. She further alleged that after the marriage with the appellant, her mother used to be tortured for matrimonial discord. She was staying away from her mother and living in her maternal uncle's home, the house of the PW-4. There is no dispute in this regard. 4. On completion of the investigation, the charge-sheet was filed under Sections 498-A/306 of the IPC. As the case was exclusively triable by the Court of Sessions, on taking cognizance the said case was committed to the Court of the Additional Sessions Judge, South Tripura, Belonia for trial. There is no dispute in this regard. 4. On completion of the investigation, the charge-sheet was filed under Sections 498-A/306 of the IPC. As the case was exclusively triable by the Court of Sessions, on taking cognizance the said case was committed to the Court of the Additional Sessions Judge, South Tripura, Belonia for trial. Accordingly, the Sessions Trial Case No. 03(ST/B) of 2012 under Section 306 and 498-A of the IPC was registered and the trial commenced. 5. At the first instance on 30.06.2011 the following charges against the appellant was framed under Sections 498-A and 306 of the IPC to which the appellant pleaded not guilty and claimed to be tried. That few months after the solemnization of the marriage between you and Bakul Datta which took place about 7(seven) years back; you being her husband at your house at Joypur under Belonia Police Station subjected said Bakul Datta to cruelly for different reasons relating to family matters which was of such a nature as was likely drive said Bakul Datta to commit suicide which continued upto 12.5.2011 and thereby committed an offence punishable under Section 498-A of IPC and within my cognizance. Secondly, that on 12.5.2011, at about 10 a.m. at your house above named, Bakul Datta set fire on herself pouring Kerosene and thereby sustained burn injury resulting in her death on 04.06.2011 at the G.B.P. Hospital, Agartala and you abetted the commission of suicide by her by our prolonged torture upon her beginning few months after her marriage till the date of the incident and thereby committed an offence punishable under Section 306 of IPC and within my cognizance. 6. The prosecution, to substantiate the said charges, examined as many as 11 witnesses including the informant and the Investigative Officer and admitted some documentary evidence (Exbt.1 to Exbt.12 and Exbt.A). Though the statement of one Ankita Datta, daughter of the victim was initially recorded by the Judicial Magistrate, Belonia, South Tripura but that witness was not examined by the prosecution for the obvious reason that the said witness did not state anything incriminating the appellant. The PW-1, namely, Nanibala Majumder and the PW-2, namely, Manik Majumder who are the neighbours of the deceased and the appellant even though were examined by the prosecution but ultimately declared hostile to the prosecution case. They did not state anything incriminating the appellant. The PW-1, namely, Nanibala Majumder and the PW-2, namely, Manik Majumder who are the neighbours of the deceased and the appellant even though were examined by the prosecution but ultimately declared hostile to the prosecution case. They did not state anything incriminating the appellant. They, on the contrary, denied to have made any statement that the appellant used to torture his wife. However, such statement was found available in Exbt.1, the previous statement as recorded under Section 161, Cr.P.C., which was eventually relied by the prosecution for establishing that charge. The PW-3, informant and the daughter from the former husband of the deceased, namely, Payel Mahajan, stated that when her mother got married to the appellant, she was taken to her maternal uncle's home. After birth of a girl child, her mother was subjected to assault by the appellant. But she at the same breath stated that she could not say definitely from whom she received such information. On 13.05.2011 when she heard that her mother had sustained burn injury, she went to her house but she did not find anybody there. Hearing that Ujjal Datta had set fire on her, she lodged a complaint to the O/C, Hrishyamukh O.P. She herself wrote the complaint. She identified the said complaint along with her signature as Exbt.3 and 3/1 in the Court. She further stated that: On 15th May, 2011 hearing that my mother was admitted at GBP Hospital, Agartala I went there with my maternal uncle Binoy Bhusan Datta around 11 a.m. & found my mother lying at the hospital bed with burn injury. Being asked by me as to how she sustained the injury, she informed that Ujjal Datta used to torture and assault her and being unable to bear with the torture, she herself set fire on her-body. She also admitted that her mother died on 05.06.2011; She denied the suggestion that her mother had developed depression and for that reason she committed suicide. The PW-4, brother of the deceased namely Binoy Bhusan Datta stated in the Court that after death of her former husband she got a job in the Electrical Department and was posted at Gajaria. After three years of. getting the job, her neighbour Ujjal Datta married her. After about a year of her second marriage, she started informing him over telephone that her husband used to torture her demanding money from her. After three years of. getting the job, her neighbour Ujjal Datta married her. After about a year of her second marriage, she started informing him over telephone that her husband used to torture her demanding money from her. As he was annoyed with her second marriage, he did not prefer to go to her house. On 13.05,2011 in the morning, he received the information over phone from Joypur that his sister, had sustained bum injury. Thereafter, he along with the PW-3 visited her house but did not find anyone there. From there they went to the Hrishyamukh O.P. where the PW-3 lodged complaint about sustaining of burn injury by her mother. On 15.05.2011 he learnt that his sister was admitted in the GB Hospital, Agartala. So he went there along with the PW-3 at around 11 a.m. and found his sister lying in the hospital bed with bum injury. As they asked Bakul (the deceased) as to how she sustained the bum injury, she informed that her husband Ujjal Datta used to torture her and being unable to bear with the torture, she tried to commit suicide. He however admitted that he did not state to the Investigating Officer while his statement was recorded under Section 161 of the Cr.P.C. that her husband used to torture on demand of money. He also denied the suggestion that the deceased developed depression. Another witness namely Laxmi Rani Mahajan was examined by the prosecution as the PW-8 who stated that the deceased being her younger sister used to inform her that the appellant used to demand money from her salary. One week prior to the fateful incident, the deceased visited the house of the PW-8 and stated that her husband assaulted her on the previous night She used to console her. On the fateful day of 13.05.2011 she received the information that the deceased was taken to the T.S. Hospital, Udaipur. Hearing this, she went there but learnt that she was shifted to GBP Hospital, Agartala and after about 5 days, for the first time she visited her in the hospital. At that time the deceased stated to her that on the day of incident when she was serving rice to her daughter, at that time her husband Ujjal returned home and assaulted her without any reason and thereafter she poured kerosene on herself and set her ablaze. At that time the deceased stated to her that on the day of incident when she was serving rice to her daughter, at that time her husband Ujjal returned home and assaulted her without any reason and thereafter she poured kerosene on herself and set her ablaze. The statement that on the very day of the incident, the deceased was assaulted by her husband was modified while she was confronted in the cross examination. The PW-8 stated that the appellant informed her and requested her to go to the TS Hospital, Udaipur where the deceased was first taken to and at the hospital the deceased informed her that while she was serving rice to her daughter then Ujjal rebuked her and was about to slap her. Thereafter, being angry she set fire on her. But immediately thereafter she stated that she could not remember whether she made such statement to anyone else. But the other statement regarding assault it has been peeled off as the contradiction inasmuch as, such statement was not recorded by the Investigating Officer under Section 161 of the Cr.P.C. Even the statement that seven days prior to the incident the deceased visited her house was not found recorded by the IO. Apart this witness, the PW-6 was as well declared hostile for giving any incriminating evidence against the appellant. The PW-7 is the Doctor who conducted the post-mortem examination over the body of the deceased along with Dr. Partha Debbarma and found that there was in effected epidermal and dermal epidermal burn injury with evidence of yellowish puss formation and there was some area of healing were present. Percentage of burning was 56% and the cause of death in their opinion was septicemia and shock as a result of burn injury. The said report was brought in the evidence by the PW-7 namely Dr. Pranab Choudhury. The PW-9 is another neighbour namely Rabindra Bhowmik who was also declared hostile by the Court on the prayer of the prosecution and did not make any incriminating statement against the appellant The PW-10, Sub-Inspector of Police, namely, Arunodoy Das who arranged the post-mortem examination and prepared the inquest report (Exbt.4/1 and 4/2). He admitted the Exbt.4 in the evidence. The PW-9 is another neighbour namely Rabindra Bhowmik who was also declared hostile by the Court on the prayer of the prosecution and did not make any incriminating statement against the appellant The PW-10, Sub-Inspector of Police, namely, Arunodoy Das who arranged the post-mortem examination and prepared the inquest report (Exbt.4/1 and 4/2). He admitted the Exbt.4 in the evidence. The PW-11, namely, Jatindra Das was the IO who briefly narrated how he conducted the investigation, got the seizure memo in the evidence and the material objects as seized by him. He also stated that when and how he recorded the statements of the witnesses as well as of the victim. It appears from his statement that he recorded the statement of the deceased on 15.05.2011 but the said statement was not brought in the evidence and it appears to have been withheld by the prosecution to their detriment. On his prayer the daughter of the deceased namely Ankita Datta was examined under Section 164 of the Cr.P.C. on 03.08.2011. The said witness did not state anything incriminating against the appellant He categorically stated that the PW-3 and the PW-5 did not state the specific name of the person for whom they came to know about the incident. Even the PW-8 did not state to him that the appellant used to demand money from the deceased. She did not state to him that seven days prior to the incident the deceased came to her house as she was assaulted by her husband on the previous night He stated that except sending requisition to the O/C, GBT outpost to record dying declaration of the victim he did not take any other step. He admitted that the appellant had also sustained the burn injuries but he did not direct the investigation to reveal how the appellant received such injuries on his person. 7. On appreciation of these evidences as stated the Addl. Sessions Judge, South Tripura, Belonia returned the finding of the conviction under Section 306 of the IPC holding that: The statement of the victim as mentioned above having been made at the hospital bed and the same not being denied, I have no doubt that this evidence clearly proves both the charges framed against the accused. This is the basis of returning the finding of the conviction under Section 306 of the IPC. 8. Mr. This is the basis of returning the finding of the conviction under Section 306 of the IPC. 8. Mr. Datta, learned counsel for the appellant submitted that the version of the PW-3 and PW-4 cannot be believed as from the first instance they have started acting mala fide against the appellant for the reason that against the will of PW-4, the deceased married the appellant The PW-4 never accepted the said marriage and nourished vengeance against the appellant. Mr. Datta, learned counsel succinctly pointed out that the written ejahar which contained the allegation is absolutely concocted and fabricated. The versions of the PW-3 and the PW-4 cannot be accepted as they failed to disclose the source. Drawing attention to the first information report, which is Exbt.II, Mr. Dutta, learned counsel stated that from the statements of the PW-3 and the PW-4 it has come to the fore that having information that the deceased had severe burn injury they went to her house on the same day and found none in the house and straight from that place they went to the Hrishyamukh police outpost and lodged the written ejahar. But in the FIR, the PW-3 alleged that the appellant had tried to kill her mother namely Bakul Mahajan(Datta) by way of pouring kerosene oil on fastening her hands and mouth with cloth. By making such statement, she had exposed her ill-intention against the appellant The statement has been put in the mouth of the deceased that the deceased was being tortured by the appellant and as she was not in a position to tolerate more she committed suicide. Both the PWs 3 and 4 have admitted in their deposition that they had no relation for about five years after the marriage of the deceased with the appellant. However, they stated that they heard about the incident of the assault from someone but the PW-3 categorically admitted that she could not say from whom she had learnt the said fact. 9. Mr. Datta, learned counsel for the appellant further emphasised that from 13.05.2011 to 05.06.2011 the deceased was under treatment either in the TS Hospital, Udaipur or in the GBP Hospital, Agartala and on having received the written ejahar on 13.05.2011 even though police did make an endeavour for recording her statement they actually did not record her dying declaration or the police suppressed the statement. However, as Mr. However, as Mr. Datta, learned counsel continued to submit that though the PW-11 stated that he recorded the statement of Bakul Mahajan (Dutta) but the prosecution did not admit that statement and thus an adverse inference has to be drawn for withholding the statement as claimed to have recorded by the PW-11 under Section 161 of the Cr.P.C. as that would have unfolded the real state of affairs. Mr. Datta, learned counsel further submitted that the story regarding the instigation is mutually destructive. All the neighbourhood witnesses had turned hostile because they did not support the statements as recorded by the IO. The turn around has further demolished the prosecution's case. It is hard to believe all the neighbourhood witnesses were silenced. Mr. Datta, learned counsel submitted that there is no evidence of abetment in the entire case. He referred a decision of this Court in Rajib Neog Vs. State of Assam as reported in 2010(4) GLT 492 : (2010) 6 GLR 331 where it has been held: 15. It is contended by the learned senior counsel that in view of the facts that the Appellant has supported the deceased in her prosecuting MBA Course, even after their marriage and also allowed her to join service, the stray incident of slapping (even if correct) due to some misunderstanding, cannot be a sufficient ground to hold that the deceased was physically and mentally tortured by the Appellant and that the said act amounted to cruelty. 10. Having reference to Rajib Neog (supra), Mr. Datta, learned counsel for the appellant submitted that the word 'instigate' appearing in Section 107 of the IPC means the active role played by a person with a view to stimulate another person to do the thing. It is the instigation to the commission of the offence itself, which constitutes the offence of abetment. The instigation must amount to provoking, inciting, urging or encouraging a person to do a thing. In the case of Sonti Rama Krishna Vs. Sonti Shanti Sree & Anr. reported in AIR 2009 SC 925 , the Apex Court observed that the words uttered in a fit of anger or emotion without any intention cannot be termed as instigation. The instigation must amount to provoking, inciting, urging or encouraging a person to do a thing. In the case of Sonti Rama Krishna Vs. Sonti Shanti Sree & Anr. reported in AIR 2009 SC 925 , the Apex Court observed that the words uttered in a fit of anger or emotion without any intention cannot be termed as instigation. He further contended that to prove the element of instigation to substantiate the charge under Section 306 of the IPC, the onus always lies on the prosecution to establish that the appellant had assaulted or treated the deceased in such a manner and with such intention that the deceased would rush to commit suicide. Having reference to Sohan Raj Sharma Vs. State of Haryana as reported in AIR 2008 SC 2108 : (2008) 11 SCC 215 it has been contended that abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. He submitted that such evidence of instigation is completely missing in the present case and as such this Court should interfere with the judgment of conviction. 11. While refuting the submissions of Mr. Datta, learned counsel for the appellant, Mr. Bhattacharjee, learned Addl. PP for the State submitted that there cannot be any reason to disbelieve the versions of PWs 3, 4 and 8 simply because they are related witnesses. He further submitted that if a comparison is made between the depositions of the PWs 3 and 4 it would be seen that there is no incoherence or inherent contradiction in those statements. Moreover, the deceased suffered 56% of the burn injury and there is no evidence that she was not in a position to speak out. It appears that she was in the fitness to make such statement. Therefore, the element of assault has been successfully established by the prosecution which ultimately instigated the deceased to commit suicide. Mr. Bhattacharjee, learned Addl. PP for the State further submitted that if the cross examinations of the PWs 3, 4 and 8 are closely observed it would be seen that the defence has completely failed either to confront those statements or to debase the statement by way of the cross examination. As such, those statements have to be accepted as the substantial proof of instigation. 12. As such, those statements have to be accepted as the substantial proof of instigation. 12. On a close scrutiny of the evidence as well as on appreciation of the submissions as made by the learned counsel for the parties it appears that the basis on which the judgment of conviction has been returned is the statements as made by the PWs 3 and 4. The law in this regard is well crystallised. If any part of the statement as made in the cross examination even not confronted during the cross-examination do not automatically acquire the status of the admitted fact It would require more. While appreciating the evidence, an authentic profile or the true account of the transactions in execution of the offence has to be reconstructed by removing the elements of doubt That being the test in a criminal case the scrutiny of the evidence be rigorously carried out to have the cumulative effect. In this case, the version of the PW-3 cannot be believed as from the outset she along with the PW-4 started embellishing the, tact She failed to divulge at any point of time, either in the written ejahar or in the Court, how she gathered knowledge that the appellant tried to kill her mother by pouring kerosene oil or what had the basis for making such statement. That being her state of mind as-resonated from her conduct, her version can hardly be believed without strict corroboration. Similarly, the statement of the PW4 is an outraging replica of the statement of the PW-3. Apart that, according to the PW-4, the purported dying declaration was made to him when the PW-3 was accompanying him in the hospital. On the other hand, it is found that the PW-3 made the statement in the Court that it was on her asking her mother made the purported dying declaration. Their hostility towards the appellant is found rooted in the second marriage of the deceased with the appellant which both the PWs 3 and 4 never approved. The disapproval was intense that they severed admittedly all relations with the deceased. Their hostility towards the appellant is found rooted in the second marriage of the deceased with the appellant which both the PWs 3 and 4 never approved. The disapproval was intense that they severed admittedly all relations with the deceased. Apart that, the prosecution has been shrouded by the suspicion inasmuch as the PW-11 has categorically stated that he had recorded the statement of the deceased under Section 161 of the Cr.P.C. and as per law as developed by now that statement could have been used as the dying declaration under Section 32 of the Evidence Act, but for unexplained reasons, the said statement has been withheld, denying the Court from unveiling the real state of affairs or the truth involved in the case. The statement of the PW-8 has been adequately dented by the defence in the cross examination. So, the backbone of the evidence as constructed by the prosecution by dint of the statements of PWs 3, 4 and 8 could not lay a safe profile against the appellant beyond reasonable doubt. Apart that, Mr. Datta, learned counsel for the appellant correctly contended that for purpose of abetment of suicide, all the ingredients of Section 107 of the IPC have to be established. Section 306 of the IPC provides that: 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. 13. In Sohan Raj Sharma (supra) the apex Court enunciated the law as under: 12. 6. Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in the Act as an offence. A person, abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word "instigate" literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section 107. These things are essential to complete abetment as a crime. The word "instigate" literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section 107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence. 'Abetted' in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence. 7. In cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. The mere fact that the husband treated the deceased-wife with cruelty is not enough. [See Mahinder Singh Vs. State of M.P. AIR 1995 SCW 4570 ]. 14. In the touchstone of Sohan Raj Sharma (supra) if the evidence is revisited it would be clear that no element of instigation to constitute abetment to suicide is found in the evidence as led by the prosecution. What Mr. Bhattacharjee, learned Addl. PP contended that the statements of the PW-3 and PW-4 provided the evidence inasmuch as the vital part of their statements remained undented. In the criminal jurisprudence the fulcrum is the search for truth and to this end, reliability is rule for sifting the grain from the chaf and else the contention is bound to fall through. 15. For the reasons as stated, the impugned judgment and order is interfered with. The conviction as returned by the Addl. Sessions Judge, South Tripura, Belonia is set aside on benefit of doubt. In the result, the appeal is allowed. The appellant be set at liberty forthwith. Send down the lower Court records forthwith.