Research › Search › Judgment

Calcutta High Court · body

2013 DIGILAW 71 (CAL)

Jagannath Mondal v. STATE OF WEST BENGAL

2013-02-06

TOUFIQUE UDDIN

body2013
JUDGMENT Toufique Uddin, J. This appeal arose against the judgment and order dated 5.10.2010 and 6.10.2010 passed by the learned Additional District & Sessions Judge, Fast Track 1st Court, Tamluk, Purba Medinipur in Sessions case No. 12 of 2007 thereby convicting the appellants for committing offence punishable under Section 306/498A/34 of the Indian Penal Code and thus directing the appellant No. 1 to suffer rigorous imprisonment for 7 years and to pay a fine of Rs. 1000/- with default clause and for commission of offence under Section 306/34 IPC and to suffer rigorous imprisonment for three years and to pay a fine of Rs. 500/- with default clause for the commission of offence punishable under Section 498A/34 IPC and also directing the appellants No. 2 and 3 to suffer rigorous imprisonment for 5 years each and to pay a fine of Rs. 1000/- with default clause for commission of offence punishable under Section 306/34 IPC and to suffer rigorous imprisonment for three years and to pay a fine of Rs. 500/- each with default clause for commission of offence punishable under Section 498A/34 IPC. In the background of this appeal the fact in a nutshell is that one Balaram Manik lodged a complaint with O.C., Panskura P.S. on 8.9.2005 stating that his elder sister Sujata was married with the accused Jagannath Mandal as per Hindu Rites and Customs. At the time of marriage they gave cash money and other articles as dowry, demanded by the accused persons. After sometime the accused persons pressurised Sujata to bring more dowry of Rs. 10,000/- from her father’s home and for non-bringing of such dowry, she was driven out after being assaulted from her matrimonial home by the accused persons. They also persecuted her to commit suicide. The inmates of Sujata tried many times to settle the matter, but in vain. At last, they lodged information with O.C., Panskura P.S. which was diarised as G.D.E. No. 121 dated 4.8.98. Sujata gave birth to three issues out of her wedlock. The complainant has further alleged that on 17.8.2005 the accused persons drove her out of her matrimonial home after assault and thereafter on 31.8.2005 the accused Jagannath Mandal came to their home and took Sujata to the house of the accused persons. On 6.9.2005, he was informed over telephone that his sister died. The complainant has further alleged that on 17.8.2005 the accused persons drove her out of her matrimonial home after assault and thereafter on 31.8.2005 the accused Jagannath Mandal came to their home and took Sujata to the house of the accused persons. On 6.9.2005, he was informed over telephone that his sister died. Hearing this information they went to the house of his sister and found her deadbody lying in the verandah with some injuries of assault on her body. The accused persons did not take any steps for her cremation. Police started case and after conclusion of investigation, the I.O. submitted charge-sheet against the accused persons under Section 306/498A/34 IPC. The case was committed by the learned CJM, Purba Medinipur to the learned court of Sessions on 28.11.2006 for trial. The learned trial court on hearing of both sides framed charge against the accused persons under Section 498A/306/34 IPC. The contents of the charges were read over and explained to them who pleaded not guilty and claimed to be tried. To contest this case the prosecution examined as many as 10 witnesses while the defence side examined none. However, the accused persons were examined under Section 313 of the Code of Criminal Procedure. The defence case as appeared from the trend of cross-examination and replies given by them at the time of examination under Section 313 of the Code of Criminal Procedure is the denial of offence with a plea of innocence. On hearing of both sides and considering the materials on record, the learned trial court convicted the accused persons by the impugned judgment. The point for consideration is if the impugned judgment calls for any interference or not. The learned counsel for the appellant drew my attention to the entire evidence on record and contended inter alia that it is a fit case for acquittal. He drew my attention mainly on the following points that over the instigation to commit suicide GD Entry No. 121 dated 4.8.98 was reported in the FIR to have been made. He further submitted the following points: i) That the G.D. Entry No. 121 dated 4.8.98 is not believable because a serial cannot be only 121 in a Police Station in the month of August. Further, that G.D. Entry has not been proved in this case. He further submitted the following points: i) That the G.D. Entry No. 121 dated 4.8.98 is not believable because a serial cannot be only 121 in a Police Station in the month of August. Further, that G.D. Entry has not been proved in this case. ii) No proof of salish by any document or independent witness has been made in this case. Why father of the deceased was not examined has not been explained. iii) Information was given about death of the victim over telephone whereas the evidence shows that there was no telephone connection in the house of victim’s father or in-law’s place. iv) PW 1 is a neighbour and he did not support the prosecution case. v) Inquest Report shows that there was family disturbance. If this be so, Section 306 IPC cannot be attracted. vi) Evidence given in court was full of embellishment and improvements vis-à-vis nondisclosure of some material facts in the 161 statements recorded during investigation. vii) PW 2 claims that he participated in dowry salish but it is not believable because arithmetical calculation shows that at the material point of time she was only around 10 years. Further, why in preference to elderly person, PW 2 was permitted to take part in the salish is not clear. viii) No poison could be detected in the chemical examination report. On the other hand, learned counsel for the State made his usual submission and drew my attention to the contents of the judgment. Section 34 and Section 306 IPC read as follows: S. 34. Acts done by several persons in furtherance of common intention – When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. S. 306. Abetment of suicide – 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. The FIR was lodged by Balaram Manik on 8.5.2005 and that Balaram Manik is PW 2. S. 306. Abetment of suicide – 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. The FIR was lodged by Balaram Manik on 8.5.2005 and that Balaram Manik is PW 2. It appears from his evidence that the accused person used to assault his Didi and abused in filthy languages by stating “Tui more ja bish kheye, golay dori diye” and also they demanded cash from the father of Sujata as dowry. PW 3 and 5 are cousin brothers of the deceased. PW 4 is another brother. PW 6 is sister-in-law. PW 7 is the mother of the deceased. PW 8 is a neighbour who attempted to corroborate the case of torture. So far as Section 306 IPC is concerned in this case, save and except the utterings “Tui more ja bish kheye, golay dori diye” there is no other uttering’s. ‘Abetment’ is something different. Certain discord and differences are unavoidable but if the petulance, discord and differences are not expected to induce a similarly circumstanced individual in the given society to which the deceased belonged, the conscience of the court should not be satisfied to find that the accused abetted suicide of the deceased. We may put reliance on (2001) 9 SCC 618 in this regard. The Hon'ble Apex Court has laid down in (2005) SCC (Cri) 56 that abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In case of conspiracy also it would involve mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding, the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306 IPC. There should be proximity between alleged act of cruelty and suicide. We may put reliance on 2011 (2) Supreme 220 for analogy. In this regard, one example may be taken as follows: A man while hurling continuously serious remarks takes another man near a rail line and asked the man to jump on the rail to put an end to his life, and the other man did it out of frustration and died. In this regard, one example may be taken as follows: A man while hurling continuously serious remarks takes another man near a rail line and asked the man to jump on the rail to put an end to his life, and the other man did it out of frustration and died. This situation may create a case of abatement. Further, abatement does not develop by a single act. It constitutes a series of mental preparations and acts culminating to provoke another man to commit suicide. The term “instigate” was considered by the Hon'ble Apex Court in (2002) SCC (Cri) 1088 wherein it was held by Their Lordships that instigation is to goad, urge forward, provoke, incite or encourage to do an act to satisfy the requirement of “instigation” though it is not necessary that actual words must be used to that effect or what constitutes “instigation” must necessarily and specifically be suggestive of the consequences. The word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. Thus, to construe “instigation”, a person who instigates another has to provoke, incite, urge or encourage the doing of an act by the other by “goading” or “urging forward”. The dictionary meaning of the word “goad” is “a thing that stimulates someone into action; provoke to action or reaction”. Similarly, “urge” means to advise or try hard to persuade somebody to do something or to make a person to move more quickly and or in a particular direction, especially by pushing or forcing such person. Therefore, a person who instigates another has to “goad” or “urge forward” the latter with intention to provoke, incite or encourage the doing of an act by the latter. As observed in Ramesh Kumar vs. State of Chhattisgarh [ (2001) 9 SCC 618 ] where the accused by his acts or by a continued course of conduct creates such circumstances that the deceased was left with no other option but to commit suicide, an “instigation” may be inferred. As observed in Ramesh Kumar vs. State of Chhattisgarh [ (2001) 9 SCC 618 ] where the accused by his acts or by a continued course of conduct creates such circumstances that the deceased was left with no other option but to commit suicide, an “instigation” may be inferred. In other words, in order to prove that the accused abetted commission of suicide by a person, it has to be established that (i) the accused kept on irritating or annoying the deceased by words, deeds or wilful omission or conduct which may even be a willful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or wilful omission or conduct to make the deceased move forward more quickly in a forward direction, and (ii) that the accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the manner noted above. Undoubtedly, presence of mens rea is the necessary concomitant of instigation. The ingredients of abetment of suicide are as follows: The prosecution has to prove – (i) the deceased committed suicide; (ii) the accused instigated or abetted for committing suicide (committing suicide by itself is a crime); (iii) direct involvement by the accused in such abetment or instigation is necessary. Barring the solitary statement “Tui more ja bish kheye, golay dori diye” nothing else has transpired in the present case in the form of goading, provoking, instigating as required as a proof of case under Section 306 IPC. Relevantly, it may be mentioned that there is a marked difference between “intimidatory” statement and “instigatory” statement. “Intimidatory” statements may give rise to two types of consequences, (a) either the person to whom such statements are made may be frightened and may be on receiving end or he may be angry enough to retaliate whereas (b) instigatory statements falls within the category of goading, provoking etc. The nature of languages used by the prosecution witnesses for commission of suicide by the deceased falls within the category of intimidators statements. Common intention as covered by Section 34 IPC is also not proved. The Inquest Report shows that there is no sign of mark of injury and it was learnt during primary instigation that for the family disturbance the deceased committed suicide by taking poison. PW 1 is a neighbors who stated that he could not say why Sujata took poison. Common intention as covered by Section 34 IPC is also not proved. The Inquest Report shows that there is no sign of mark of injury and it was learnt during primary instigation that for the family disturbance the deceased committed suicide by taking poison. PW 1 is a neighbors who stated that he could not say why Sujata took poison. In support of his submission learned counsel for the appellant cited the decision as reported in (2010) 1 SCC (Cri) 896 wherein it was held that the duty of court is to see that there is direct evidence, active role on the part of the accused in the abetment by direct or indirect act of instigation or by doing of certain act to facilitate the commission of suicide. He also cited another decision reported in (2010) 1 SCC (Cri) 917 wherein it was held that Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on part of accused to instigate or aid in committing suicide, conviction cannot be sustained. In order to convict a person under Section 306 IPC, there has to be a clear men’s rea to commit offence. It also requires an active act or direct act which leads deceased to commit suicide seeing no option and this act must have been intended to push deceased into such a position that he commits suicide. Also, reiterated, if it appears to court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to society to which victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, conscience of court should not be satisfied for basing a finding that accused charged of abetting suicide should be found guilty. Herein, deceased was undoubtedly hypersensitive to ordinary petulance, discord and differences which happen in day-to-day life. In facts and circumstances of case, none of the ingredients of offence under Section 306 IPC made out. Hence, appellant’s conviction held unsustainable. The learned counsel for the convict cited another decision reported in (1994) SCC (Cri) 107 wherein it was held that for proof of Section 306 IPC the court is to satisfy that deceased was not hyper-sensitive. In facts and circumstances of case, none of the ingredients of offence under Section 306 IPC made out. Hence, appellant’s conviction held unsustainable. The learned counsel for the convict cited another decision reported in (1994) SCC (Cri) 107 wherein it was held that for proof of Section 306 IPC the court is to satisfy that deceased was not hyper-sensitive. A careful reading of the decisions (supra) suggest that the present case is not fulfilling the requirement for commission of offence under Section 306 IPC. Next comes the question of offence under Section 498A of the Code of Criminal Procedure. It has already been stated that the relations in one voice attempted to establish the fact that over the demand of dowry, the victim was subjected to torture. The cross-examination of the I.O., PW 10 shows that the allegation of torture as made in the court could not be substantiated because when such witnesses were confronted by the defence side regarding allegation of torture over demand of dowry, the I.O. stated that such factum of torture was not disclosed to him by the witnesses. There was improvement in evidence led in Court. PW 9, the doctor opined that cause of death was due to the fact of poisoning but the opinion given by the FSL was that no poison could be detected in the viscera. Regarding torture there is no corroboration by any independent witness. Rather the evidence of the I.O. runs counter to what has been stated by the relative witness in court over the matter of alleged torture concerning demand of dowry. This being the position that the prosecution case does not stand and the judgment of the learned trial court suffers from infirmities and is liable to be set aside. In the result, the appeal succeeds. The judgment dated 5.10.2010 and 6.10.2010 passed by the learned Additional District & Sessions Judge, Fast Track 1st Court, Tamluk, Purba Medinipur is hereby set aside. The convicts are acquitted and be released from bail bonds immediately if not wanted in any other case. No order as to costs. Upon appropriate Application(s) being made, urgent Photostat Certified copy of this Judgment, be given/issued expeditiously subject to usual terms and conditions.