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2016 DIGILAW 277 (CAL)

Jaladhar Khan v. State of West Bengal

2016-03-17

ISHAN CHANDRA DAS

body2016
JUDGMENT : Ishan Chandra Das, J. This criminal appeal has been directed against the judgment and order of conviction dated 7th day of January, 2014 and 9th day of January, 2014 respectively passed by learned Additional Sessions Judge, Fast Track Court 3, Barasat, North 24 Parganas in S.C. No. 14(1)/2014, (S.T. (5) (7) /2012) where learned Trial Court found the appellants guilty of the offence punishable under Sections 498A/306 of the Indian Penal Code and sentenced them to suffer Simple Imprisonment for 2 years and to pay a fine of Rs. 1000/- each in default to suffer Simple Imprisonment for one month for the offence punishable under Section 498A of the Indian Penal Code and to suffer Simple Imprisonment for 5 years for the offence punishable under Section 306 of the Indian Penal Code and also to pay a fine of Rs. 3000/- each in default to suffer Simple Imprisonment for 5 months with a further direction that both the sentences to run concurrently subject to set off in terms of Section 428 of the Code of Criminal Procedure. 2. Brief facts of the case, as revealed form the written complaint (Exhibit-1) is that on the 25th day of January 2010, the marriage between the appellant no. 1 (Jaladhar Khan) and victim Reba Pal was solemnized according to the Hindu rites and custom and after such marriage, the victim was subjected to ill-treatment at her matrimonial home by her sisters-in-law Alpana and Aparna, who used to taunt her on different pretexts and caused torture on her physically and mentally. On the 3rd day of January, 2010 while the victim made an attempt to go to the sister's house of her mother-in-law at Kaylapota with her mother-in-law Uma Khan, there was an altercation between the victim and her husband over that issue to which the husband of the victim told her- "why don't to you die?" Her mother-in-law then went to Kaylapota alone. Thereafter due to this altercation, taunt and instigation by her husband and sisters-in-law, the victim was compelled to commit suicide by hanging. Hearing the news of his sister's death, the de facto complainant (Sukumar Pal) rushed to the matrimonial home of the victim and was confirmed about the reason behind her tragic death. He, therefore, requested the Officer-in-Charge of Ashokenagar Police Station, District- 24 Parganas (North), to take the legal action against the matrimonial relations of the victim. Hearing the news of his sister's death, the de facto complainant (Sukumar Pal) rushed to the matrimonial home of the victim and was confirmed about the reason behind her tragic death. He, therefore, requested the Officer-in-Charge of Ashokenagar Police Station, District- 24 Parganas (North), to take the legal action against the matrimonial relations of the victim. 3. Learned trial Court in course of trial examined 8 witnesses altogether including the de facto complainant, the brother of the victim (PW-1), her mother Padmarani Pal (PW-2) one Anup Pal, the nephew of the victim (PW-3) one Milan Pal, the brother-in-law of the victim (PW-4) Dr. Supriti Gharai, the Medical Officer holding the Post Mortem Examination over the dead body of the victim (PW-5), one Swapan Mondal and one Tutul Mondal, the neighbours of the appellants as PW-6 and 7 respectively and Sub-Inspector Laxman Chandra Singha, the Investigating Officer of this case as (PW-8) and on conclusion of trial he found the appellants guilty of the offence punishable under Sections 498A/306 of the Indian Penal Code, convicted them and sentenced them to suffer imprisonment and fine, as noted earlier. 4. Being aggrieved by and dissatisfied with the judgment and order of conviction, as noted above, the present appeal has been preferred. 5. The point left for decision before this Court is - whether the learned trial Court was justified in convicting the appellants and sentencing them to suffer imprisonment and fine, as quoted above. 6. The appellants were brought before learned trial Court to answer the charges of committing the offence punishable under Sections 498A/306 of the Indian Penal Code. The appellants herein being the matrimonial relations of the victim shall be held guilty of the offence, punishable under Sections 498A/306 of the Indian Penal Code, if it is established that victim Reba Pal, the wife of the appellant Jaladhar Khan was subjected to cruelty within the meaning of Section 498A of the Indian Penal Code and abetted her to commit suicide at her matrimonial home within one year of her marriage. 7. Learned Counsel for the appellants, at the outset, submitted with reference to the statements of the de facto complainant (PW-1) that the victim met an unfortunate death within one year of her marriage with Jaladhar (the appellant no. 1) and she committed suicide by hanging, as the Post Mortem Report (Exhibit-6) corroborated the same. 7. Learned Counsel for the appellants, at the outset, submitted with reference to the statements of the de facto complainant (PW-1) that the victim met an unfortunate death within one year of her marriage with Jaladhar (the appellant no. 1) and she committed suicide by hanging, as the Post Mortem Report (Exhibit-6) corroborated the same. With further reference to the statements of the PW-1 in the written complaint, he submitted that the allegation of demand of rest part of the dowry was neither manifested in the written complaint nor it was reflected in the statements of the witnesses, as recorded by the Investigating Officer (PW-8). 8. Drawing my attention to the provisions of Section 498A of the Indian Penal Code, he urged that the allegation of dowry was afterthought with a view to incriminating the husband and sisters-in-law of the victim. He also pointed out that the de facto complainant, who happens to be the younger brother of the victim, admitted that he did not state in the written complaint that Rs. 70,000/- was demanded as dowry out of which Rs. 40,000/- was paid at the time of their marriage and Rs. 30,000/- was due. He also submitted that as per his statement, his sister Reba Pal was 40 years old at the time of her marriage, the de facto complainant was agreed to pay the total sum as dowry but the same was not disclosed in the written complaint. Criticizing the conduct of the de facto complainant in this regard, he urged that the de facto complainant failed to bring such an important fact in the written complaint which is the very essence to establish the guilt of the appellants - he added. 9. Clarifying the provisions of Section 154 of the Cr. P.C., he urged, with reference to a decision of the Hon'ble Apex Court in Sujoy Sen @ Sujoy Kumar Sen v. State of West Bengal, reported in (2007) 6 SCC 32 , that major discrepancies in the FIR would be fatal and it effects credibility of the FIR. 9. Clarifying the provisions of Section 154 of the Cr. P.C., he urged, with reference to a decision of the Hon'ble Apex Court in Sujoy Sen @ Sujoy Kumar Sen v. State of West Bengal, reported in (2007) 6 SCC 32 , that major discrepancies in the FIR would be fatal and it effects credibility of the FIR. Drawing my attention to the averments in the written complaint (Exhibit-1) he also urged that the de facto complainant did not refer even a single incident of demand of dowry or ill-treatment of the victim at her matrimonial home, save and except a domestic quarrel over a trifling issue but in the statement (Exhibit- 5), recorded in terms of Section 164 of the Cr. P.C., there was an exaggeration and embellishment in the statement of the said de facto complainant. 10. Pointing out the oral testimony of the Investigating Officer (PW-8)(in cross-examination), he further urged with reference to the suicidal note of the victim (Exhibit-8) that the victim lady never expressed any sort torture or ill-treatment by the members of her matrimonial home. He also submitted that the evidence of PWs-1, 2, 4 & 6 deserve to be discredited due to the fact that they never raised any allegations against these appellants at the initial stage of investigation. 11. Mr. Biplab Mitra, Learned Counsel for the appellants to fortify his argument further relied on a decision of the Hon'ble Apex Court in Arulvelu and Another v. State reported in (2009) 10 SCC 206 , where the Hon'ble Court held: - "The High Court set aside the judgment of the trial court on the count that the trial court gave undue emphasis on the minor inconsistencies and contradictions. The High Court discarded the version of the trial court regarding PW 1's deposition for the first time in court regarding demand of car which he did not mention in the first information report (FIR). The High Court observed that the FIR cannot be an encyclopedia to contain all the details of history of the case. This approach of the High Court does not seem to be correct. The FIR should at least mention a broad story of the prosecution and not mentioning of material and vital facts may affect the credibility of the FIR." 12. This approach of the High Court does not seem to be correct. The FIR should at least mention a broad story of the prosecution and not mentioning of material and vital facts may affect the credibility of the FIR." 12. Placing reliance on the said decision, learned Counsel for the appellants urged that the story of demand of dowry not being averred in the First Information Report it should be appropriate to reject the allegation of torture for demand of dowry though it was covered up in the statements of the de facto complainant recorded in terms of Section 164, as noted earlier. 13. In this context, learned Counsel for the appellants further urged with reference to a decision of the Hon'ble Apex Court in Geeta Mehrotra and Another v. State of Uttar Pradesh and Another, reported in (2010) 10 SCC 741 and pointed that a large number of family members had been included in the FIR by casually mentioning their names for the contents never disclosed their active involvement, as it was done in the present case also. 14. In course of his impressive argument Mr. Mitra learned Counsel for the appellants also urged, placing reliance on a decision of the Hon'ble Apex Court in Atmaram v. State of Maharashtra, reported in (2013) 3 CCRLR (Supreme Court) 43 where the Hon'ble Court while setting aside the order of conviction against the charge under Sections 306/498A of the Indian Penal Code held that the presumption under Section 113A of the Evidence Act has to be drawn upon examination of the evidence of the witnesses with a microscopic approach and it should not be dealt with casually. Inviting attention to a decision of the Hon'ble Apex Court in Hazarilal v. State of Madhya Pradesh reported in (2009)13 SCC 783 , learned Counsel for the appellants confidently urged that his clients were convicted and sentenced to suffer imprisonment and fine merely on the basis of surmise and conjecture and on the strength of some unfounded allegations but as the Hon'ble Apex Court in the said decision (Hazarilal supra) held otherwise - he added. 15. Learned Counsel for the state, on the other hand, expressed a contrary view on the matter. While supporting the findings of the impugned judgment and order of conviction, he urged that here the victim committed suicide within one year of her marriage. The appellant no. 15. Learned Counsel for the state, on the other hand, expressed a contrary view on the matter. While supporting the findings of the impugned judgment and order of conviction, he urged that here the victim committed suicide within one year of her marriage. The appellant no. 1 being the husband of the victim and the other appellants being the near relations (sisters-in-law) were under legal obligation to prove their innocence since the court may presume their guilt in terms of Section 113A of the Evidence Act. Pointing out the incriminating statements of the de facto complainant (younger brother of the victim) and her mother (PWs-1&2 respectively) coupled with the statement of the de facto complainant, recorded under Section 164 of the Code of Criminal Procedure, he urged that the victim was treated with cruelty within the meaning of Section 498A, she was not allowed congenial marital life and ultimately she was driven to commit suicide at the behest of the unscrupulous matrimonial relations including her husband and sisters-in-law. Placing reliance on a decision of the Hon'ble Apex Court in Ramesh Bithal Patil v. State of Karnataka reported in (2014) 11 SCC 516 - he urged that where the evidence of invoking presumption under Section 113A exists, it can safely be concluded that the appellants abetted suicide of the deceased unless the appellants/accused persons led evidence to rebut such presumption. Drawing my attention to the provisions of Section 107 of the Penal Code, he urged that the appellants no. 2 and 3 herein intentionally aided by their acts like taunting and provoked the victim to commit suicide, whereas the appellant no.1/husband instigated her in doing so. Accordingly he opined that the instant appeal should be dismissed, being devoid of merit. 16. In the case in hand, on the basis of the above discussions, the following facts are clearly established:- (1) The marriage between the appellant no.1, Jaladhar Khan and the victim was solemnized on 25/01/2010 and the victim's wife met her unnatural death on 03/12/2010 i.e. within one year of the marriage. (2) The victim committed suicide by hanging as Post Mortem Report (Exhibit-6) duly proved by the Medical Officer (PW-5) confirmed the same. (3) The victim's marriage took place while she was 40 years old and it is also evident that the ability of precreation of a child by the victim women was doubted. (2) The victim committed suicide by hanging as Post Mortem Report (Exhibit-6) duly proved by the Medical Officer (PW-5) confirmed the same. (3) The victim's marriage took place while she was 40 years old and it is also evident that the ability of precreation of a child by the victim women was doubted. (4) The victim left a suicidal note (Exhibit-8) and the translated version of it is quoted below:- "Take all your articles and return the articles what my mother gave. Take your ring also. I have given you much pain. Get married to a good girl who will give birth a child. You will not feel any pain thinking that I was in your life and forget everything. Shower upon me every mistake. Pardon me. Your unfortunate Reba" 17. Here the prosecution alleged that the victim committed suicide by hanging as she was subjected to cruelty within the meaning of Section 498A of the Indian Penal Code and such cruelty abetted her to kill herself. 18. Now for critical appreciation of the same the provision of Section 498A is quoted below:- "498A. Husband or relative of 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. Explanation. - For the purpose of this section, "cruelty" means - (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." 19. From a plain reading of the provisions of Section 498A it is manifested that the prosecution has initial burden to establish that the victim was subjected to harassment of such a nature which drove her to commit suicide and the reason for such harassment may be either for demand of dowry or otherwise. From a plain reading of the provisions of Section 498A it is manifested that the prosecution has initial burden to establish that the victim was subjected to harassment of such a nature which drove her to commit suicide and the reason for such harassment may be either for demand of dowry or otherwise. The written complaint (Exhibit-1) contains the general allegations, which is opposed to categorical allegations with regard to harassment for demand of dowry. True it is that the de facto complainant in his oral testimony as PW-1 stated some allegations against the appellants but at the initial stage he alleged nothing in respect of the same in the written complaint, save and except a domestic quarrel between the couple with regard to her (victim) leaving for Kaylapota i.e. to her aunt-in-law's house with her mother-in-law. In this context, the evidence of the Investigating Officer of this case (PW-8) shall be looked into with proper circumspection, the same being significant in dealing with the merits of this case. The Investigating Officer (PW-8) in his cross-examination stated the following on oath which is quoted below:- "It is fact that in the suicidal note there is no mentioning of demand of dowry. It is fact that PW-2 did not state before me that her daughter was tortured due to demand of balance dowry. It is fact that PW-2 did not state to me that as there was no issue, the victim was tortured. It is fact that Milan Pal did not state before me that on 03.12.2010, Reba was tortured by her in-laws. It is also fact that PW-4 Milan Pal did not state before me that due to nonpayment of balance Rs. 30,000/- the accused persons created problem with Reba. PW-6 did not state before me about strangulation and other marks on the person of deceased." 20. It is observed earlier that the de facto complainant in his written complaint did not disclose any sort of cruelty for demand of dowry or otherwise but in his oral testimony and in his statement recorded under Section 164 of the Code of Criminal Procedure, he stated otherwise, incriminating the appellants herein. The mother of the victim did not state before the Investigating Officer with regard to such allegation of demand for dowry but in her oral testimony as PW-2, she echoed the statement of her son (PW-1). The mother of the victim did not state before the Investigating Officer with regard to such allegation of demand for dowry but in her oral testimony as PW-2, she echoed the statement of her son (PW-1). If the evidence of the Investigating Officer in his cross-examination, with regard to the oral testimony of the PWs-1 & 2 and some of their relatives like PWs-4 & 6 are carefully scrutinized, it can safely be held that the allegations brought against the appellants regarding commission of the offence punishable under Sections 498A/306 of the Indian Penal Code, were not only afterthought but those were the outcome of exaggerated version coupled with embellishments in their statements to teach a lesson to the matrimonial relations of the victim out of psychological hatred particularly when the victim in her suicidal note expressed frustration 'as she was unable to fulfil the desire of her husband to give birth of a child'. 21. Mr. Mitra, learned Counsel for the appellants in course of his argument reiterated the grievance of the victim in her suicidal note (Exhibit-8) and admitted with all fairness that the couple was not happy since they sincerely wanted a baby in their lap but non-fulfilment of their desire may drive the victim to commit suicide. He confidently submitted and opined that non-fulfilment of such a desire cannot be equated with the abetment as provided by Section 107 of the Penal Code and the appellants herein were not even remotely connected with the offence of abetment of the victim to commit suicide - he added. Here the allegation against the appellants/sisters-in-law of the victim were nothing but taunting which can be termed neither as cruelty with the meaning of Section 498A nor abetment to commit suicide of a person. 22. From a careful consideration of the materials-on-record particularly the oral testimony of other local witnesses like Anup Pal (PW-6) (the son of the victim's sister), Milan Pal, the sister's husband of the victim (PW-4) who simply expressed their opinion without knowing the factual aspects of the case and in the background, I do not like to give much importance on the evidence of such persons who are none but the inimical relations of the appellants. 23. 23. In this context, a decision of the Hon'ble Apex Court in State of West Bengal v. Orital Jaiswal and Another (1994) 1 SCC 73 is quoted below as a guiding principle to deal with case of abetment of suicide:- ".....the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life, quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty." 24. It is already observed that the evidence, as produced by the prosecution during trial, are lacking in establishing the charge under Section 498A of the Indian Penal Code as well and I firmly conclude that learned trial Court was not justified in holding the appellants guilty of the offence, as complained of and they deserve order of acquittal from the charges punishable under Section 498A/306 of the Indian Penal Code. Hence as I find merit in the present appeal and the same stands allowed. The judgment and order of conviction dated 7th day of January, 2014 and 9th day of January, 2014 respectively passed by learned trial Court in S.C. No. 14(1)/2014 (S.T.No.(5)(7)/2012) are hereby set aside and the appellants are set at liberty at once. The bail bonds furnished on their behalf in connection with this appeal stand cancelled. 25. Let a copy of this judgment be sent to the learned Court below along with the LCR at once, for information and necessary compliance.