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2013 DIGILAW 118 (CAL)

TAPAN DAS v. STATE OF WEST BENGAL

2013-02-26

TOUFIQUE UDDIN

body2013
JUDGMENT : Toufique Uddin, J. This appeal arose out of judgment and order of conviction dated 18.06.2012 & 19.06.2012 passed by learned Additional Sessions Judge, Fourth Court, Nadia in Sessions Trial No.11(4) of 2011 arising out of Sessions Case No.71(04) of 2010 and thereby convicting the appellants for commission of offence punishable under sections 498A/ 306 of the Indian Penal Code. In the background of this appeal, the fact in a nutshell is as follows:-- On 11.12.2008, the de facto complainant, Subhas Das lodged a written complaint against appellants with the Officer-in-charge, Dhubvulia Police Station, Nadia to the effect that his sister, Fulkali Das was married to Tapan Das and ever since her marriage, Tapan Das used to torture her and kept her in pain. He also stated on two or three instances Tapan Das drove away his sister from his house after beating. Further he stated that his sister stated to him that her husband, Tapan Das had an illicit affair with one Sheila Majumdar, wife of Haradhan Majumdar of village Tantla. In order to maintain the illicit relationship her husband, Tapan Das often used to torture Fulkali. He also stated that Fulkali had some problem with Shila Majumdar. He stated that last night at about 11.00 P.M. Fulkalui was strangulated to death by her husband Tapan Das, Haradhan Majumdar, Kamala Das and Karuna Das. He stated that Fulkali was frequently tortured by them and their torture finally put an end to her life. The de facto complainant also stated that they paid a dowry of Rs.50,000/- and about three bhoris of gold ornaments to his sister during her marriage. He also stated that they also paid Rs.20,000/- to his sister's husband for constructing a pucca house. 2. On investigation police submitted charge-sheet u/s 498A/ 302/ 34 of the Indian Penal Code against the accused persons. 3. The case was committed to the learned Court of Sessions by the learned Magistrate. 4. On hearing both sides, learned Chief Judicial Magistrate framed charges against all the accused persons under Sections 498A/ 306 of the Indian Penal Code. The contents of the charges were read over and explained to the accused persons who pleaded not guilty and claimed to be tried. 5. To contest this case, the prosecution had examined as many as 19 witnesses while none was examined on the side of the accused persons. 6. The contents of the charges were read over and explained to the accused persons who pleaded not guilty and claimed to be tried. 5. To contest this case, the prosecution had examined as many as 19 witnesses while none was examined on the side of the accused persons. 6. However, the accused persons were examined u/s 313 of the Code of Criminal Procedure. 7. The defence case as appeared from the trend of cross-examination of the witnesses and the replies given by the accused persons at the time of examination u/s 313 of the Code of Criminal Procedure is denial of offence with a plea of innocence. 8. On trial the learned Court convicted the appellants for committing offence u/s 498A/ 306 of the Indian Penal Code by the impugned judgment. 9. Now the points for consideration is, if the judgment suffers from any infirmity and calls for any interference or not. Section 498A of the Indian Penal Code runs as follows:-- 498A. Husband or relative or husband of a woman subjecting her to cruelty.-- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. (a) Any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. Section 306 of the Indian Penal Code runs as follows:-- 306. Abetment of suicide. 10. 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. 11. The learned lawyer of the appellant contended amongst other inter alia on the following points:-- (i) The ingredients of both sections 498A/ 306 of the Indian Penal Code are wanting. 11. The learned lawyer of the appellant contended amongst other inter alia on the following points:-- (i) The ingredients of both sections 498A/ 306 of the Indian Penal Code are wanting. (ii) From the postmortem Doctor's evidence it will transpire that the death was suicidal in nature. (iii) The marriage took place about 12 years back. So the presumption so far as section 113 of Evidence Act is concerned, is not here. (iv) P.W.2 is a neighbour. He a witness to the inquest report. But he said that the wife and the husband had a good relationship. He is also the signatory of the surathaal report. He did not stated that the deceased was subjected to cruelty. (v) The learned lawyer of the appellant drew my attention to the evidence of P.W.8, the brother of the victim lady who stated that the alleged dispute is of other aspect. Over the alleged assault on her young son, she was rebuked by the mother-in-law and that is why she committed suicide. This P.W. has not been declared hostile. (vi) Last but not the least of his argument was that the father of the deceased turned hostile since because he could not give a clear description of the torture culminating in death of her daughter, the victim lady. 12. The learned lawyer of the State strenuously argued that this is fit case where the order of conviction should be sustained. 13. Admittedly the marriage of the victim lady took place 12 years before her death. So, obviously the question of section 304B does not come into picture here and accordingly it is not here. Still then there is a question of presumption, since because there are some stray pieces of evidence as regards torture and further demand of dowry. But regarding this aspect there is not consistent evidence given by the prosecution witnesses. 14. To appreciate the case from a better angle some relevant pieces of evidence are required to be considered here. 15. The surathaal report has been signed by one Samir Majhi, P.W.2, wherein it was stated by the Police Officer that the family member of the deceased including the father of the deceased stated that the victim has been murdered by the present appellants. But this statement finds no place in the form of corroboration. Therefore the question of murder is gone. But this statement finds no place in the form of corroboration. Therefore the question of murder is gone. Also it is a fact that no charge has been framed u/s 302 of the Indian Penal Code. P.W.2 is the signatory of the surathaal report. He stated in evidence that Fulkali committed suicide. He stated nothing about the torture unleashed or torture caused by any family members. Rather he stated that Fulkali had good relationship with them. 16. P.W.3 is a constable, a formal witness who escorted the dead-body. 17. P.W.4 was declared hostile. He simply stated Fulkali was dead. But why she was dead, he said nothing. 18. P.W. 5 is a Doctor who did postmortem over the dead-body of the deceased. It was his categorical evidence that death was due to Asphysia resulting from ante mortem hanging by the neck, which is suicidal in nature. 19. In this regard, learned lawyer of the State very strongly placed his argument by stating that a Mango tree from where the dead-body was pulled down, was 4 ft. in height. So it is highly improbable that the victim lady committed suicide by hanging from that height. His argument is very interesting and heart soothing no doubt but the legal glass is wanting here because a surmise cannot take place of proof. There is no evidence that the victim was strangulated to death. 20. P.W.6 simply stated that Fulkall committed suicide. 21. P.W.7, is a rickshaw-puller, a formal witness. 22. P.W.8 is the daughter of the victim lady. She is 13 old. So it cannot be said that she is a negligible witness. In clear terms she stated that three years ago when her mother was assaulting her brother, her grandmother rebuked her mother, and that is why she committed suicide. She was declared hostile. She gave contradictory evidence rendering herself vulnerable. 23. Next comes the evidence of P.W.9. He took the dead-body to the Shaktinagar Hospital. 24. P.W.10 is the brother of the deceased. He heard from his sister that her husband used to assault her mercilessly and often driven her from house. But this piece of evidence does not connect the appellants with the alleged offence. Simply his evidence is hit by Section 32 of the Evidence Act. 25. P.W. 11 is none less but the mother of the deceased. He heard from his sister that her husband used to assault her mercilessly and often driven her from house. But this piece of evidence does not connect the appellants with the alleged offence. Simply his evidence is hit by Section 32 of the Evidence Act. 25. P.W. 11 is none less but the mother of the deceased. She stated in her evidence that her daughter used to protest as she saw illicit affairs continuing between her husband and one Shila Majumdar and also Tapan Das demanded further cash of Rs.50,000/- and in case of failure to bring such cash of Rs.50,000/- by the victim, Tapan Das would continue illicit relation with Shila. She also stated that Tapan Das drove her daughter from his house and then her daughter came to her house and she disclosed about torture committed upon her and ultimately killed her. 26. P.W. 12 is the father of the victim lady. He has stated that he gave Rs. 50,000/- and some other articles as dowry in addition to further cash of Rs. 20,000/-. It is not known whether so called dowry and gold ornaments was presented within their own volition or not. Be that is it may, this witness was declared hostile. Evidence of both P.W. 11 and P.W. 12, the parents, are inadmissible u/s 32 of Evidence Act as they heard from the deceased. 27. P.W. 13 stated about illicit relation between Tapan Das and Shila, leading to suicide of victim. P.W.14, 15, 16, 17 are all hearsay witnesses. P.W. 18 only filled up formal FIR. 28. P.W. 19, the Investigation Officer categorically stated that P.W. 12 did not state that cash of Rs. 50,000/- and gold ornaments and further case of Rs. 20,000/- were paid and he did not stated to him that Karuna and Tapan used to assault his daughter. In 161 evidence this witness gave a total contradictory picture of the case. Therefore, what else remains is easily gaugeable. 29. Now let us take the question of section 306 of the Indian Penal Code be taken up. To attract Section 306 of the Indian Penal Code, there shall be goading, provoking, instigating, probing or so to a person prompting him to commit suicide. 30. Here in this case nothing of the sort is available. 29. Now let us take the question of section 306 of the Indian Penal Code be taken up. To attract Section 306 of the Indian Penal Code, there shall be goading, provoking, instigating, probing or so to a person prompting him to commit suicide. 30. Here in this case nothing of the sort is available. Nor there is any piece of action on the part of the appellants that either they hurled any intimidatory or instigatory statement to commit suicide. It is equally true that if a person is hypersensitive or susceptible to flimsy cause and was unable to bear the consequences of such flimsy matter which is otherwise borne by a man or ordinary prudence there cannot arise the application of section 306 of the Indian Penal Code. 31. Last but not the least aspect is there is no immediate threat or provocation or continuance of harassment driving the victim lady to reach the end of tether to commit suicide. 32. Therefore, I am of the view that the order of conviction of the Trial Court is not justified. Accordingly, the appeal stands allowed and the conviction and the sentence is set aside. 33. The appellants be set at free If they are not wanted in any other case. A copy of this judgment and the Lower Court Record be sent down to the leaned Court below immediately. Urgent xerox certified copy of this order be given to the parties, if applied for, upon compliance of necessary formalities.