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2017 DIGILAW 478 (CAL)

Manilal Chakraborty v. State of West Bengal

2017-05-16

JOYMALYA BAGCHI

body2017
JUDGMENT : Joymalya Bagchi, J. The Appeal is directed against judgement and order dated 29.1.2015 passed by learned Additional Sessions Judge, 5th Court, Barasat, North 24 Parganas in Sessions Trial No. 8(7) 03 (S.T. 592/14 (new)) arising out of Sessions Case No.3(11) 02 convicting the appellant for commission of offences punishable under Sections 498A/306 of the Indian Penal Code and sentencing him to suffer simple imprisonment for two years and to pay a fine of Rs.500/-, in default to suffer simple imprisonment for a further period of one month for the offence punishable under Section 498A of the Indian Penal Code and to suffer rigorous imprisonment for seven years and to pay a fine of Rs.5,000/-, in default to suffer rigorous imprisonment for a further period of six months for the offence punishable under Section 306 of the Indian Penal Code, both the sentences to run concurrently. 2. The prosecution case, as alleged, against the appellant is to the effect that one Iva Chakraborty, the elder sister of P.W.1/de facto complainant, Pritwish Chakraborty was married to the appellant in 1991 and in the course of her matrimonial life, she was continuously subjected to physical and mental torture. The victim narrated such incidents of torture to her brother, Pritwish as well as her other relations. 3. It has further been alleged that the appellant had assaulted the victim while she was pregnant and the child died in the womb. On 7.4.2002 the appellant informed the mother of the victim that her daughter had died. Accordingly, Pritwish Chakraborty and his wife went to the house of the appellant and found the door locked from inside. On opening the window, they found his sister hanging from a ceiling fan. They informed the police and police recovered the dead body of the victim, a white tool and a suicide note written by his sister. On the written complaint of Pritwish Chakraborty, first information report was registered under Sections 498A/306 of the Indian Penal Code against the appellant. 4. In conclusion of investigation, charge sheet was filed under Sections 498A/306 of the Indian Penal Code. The case being a sessions triable one was committed to the Court of Sessions and transferred to the Court of the Additional Sessions Judge, 5th Court, Barasat, North 24 Parganas for trial and disposal. 4. In conclusion of investigation, charge sheet was filed under Sections 498A/306 of the Indian Penal Code. The case being a sessions triable one was committed to the Court of Sessions and transferred to the Court of the Additional Sessions Judge, 5th Court, Barasat, North 24 Parganas for trial and disposal. Charges were framed under Sections 498A/306 of the Indian Penal Code and the appellant pleaded not guilty and claimed to be tried. 5. In the course of trial, prosecution examined 15 witnesses and exhibited a number of documents. The defence of the appellant was one of innocence and false implication. In conclusion of the trial, the Trial Judge by judgement and order dated 29.1.2015 convicted and sentenced the appellant, as aforesaid. 6. Mr. Tiwari, learned counsel appearing for the appellant submits that the prosecution evidence does not establish the ingredients of the alleged offences. The evidence with regard to torture is vague, omnibus and is not supported by any contemporaneous report of the police authorities. 7. He further submits that the evidence of the independent witnesses with regard to torture is also unreliable. There is nothing to show that the conduct of the appellant constituted 'abetment' as defined under Section 107 of the Indian Penal Code and, therefore, conviction of the appellant under Section 306 of the Indian Penal Code is unwarranted. The death of the victim occurred 11 years after her marriage and, therefore, the prosecution cannot get the advantage of any statutory presumption under Sections 113A or 113B of the Indian Evidence Act. The suicide note (Exhibit 5) has not been proved beyond reasonable doubt as opinion of any handwriting expert had not been obtained by the prosecution to prove the said note and, therefore, the note ought not to be relied upon. 8. Without prejudice to such argument, it is submitted that the contents of the suicide note would not, even if believed, disclose an act of abetment by the appellant of the suicide of the victim. He, accordingly, prayed for acquittal of the appellant. In this connection, he relies on a number of authorities in support of his arguments. 9. On the other hand, Mr. Basu, learned Advocate appearing for the State submits that the evidence of the relations unequivocally establishes that the victim was subjected to continuous mental and physical torture. He, accordingly, prayed for acquittal of the appellant. In this connection, he relies on a number of authorities in support of his arguments. 9. On the other hand, Mr. Basu, learned Advocate appearing for the State submits that the evidence of the relations unequivocally establishes that the victim was subjected to continuous mental and physical torture. He further submits that the evidence of the relations is also supported by independent witnesses with regard to torture on the victim. There is evidence of physical assault and the suicide note of the victim has been proved by the evidence of the near relations who are admittedly acquainted with her handwriting. 10. It is also important to note that the suicide note was recovered by the police authorities contemporaneous to the death of the victim at the place of occurrence and, therefore, the question of fabrication of such note by the prosecution is wholly ruled out in the factual matrix of the case. 11. Hence, the appeal is liable to be dismissed. 12. Let me consider the rival contentions in the backdrop of the evidence on record. P.W.1, P.W.6, P.W.7, P.W. 9 and P.W.10 are the relations of the victim. 13. P.W.1 is the younger brother of the victim and the de facto complainant in the instant case. He deposed that the victim was married to the appellant 11/12 years ago according to Hindu rites and customs. Thereafter, a female child was conceived from the wedlock who subsequently died. His sister died by committing suicide by hanging on 7.4.2002. The appellant used to subject her to mental and physical torture. His sister narrated the details of such torture to him, his mother and his wife. The appellant assaulted his sister with kicks on her belly and as a result of such torture, the child died in her womb. On 7.4.2002 the appellant informed his mother that his sister had died. Accordingly, he and his wife went to the house of the appellant and after opening the window of the room he found his sister hanging from the ceiling fan at L.I.G. 75 Birati Housing Estate, Kolkata - 700 049. His sister and the appellant used to reside in the said apartment. Thereafter, he along with the local people went to Nimta Police Station. The police officer came to the place of occurrence and the door of the room was broken open. His sister and the appellant used to reside in the said apartment. Thereafter, he along with the local people went to Nimta Police Station. The police officer came to the place of occurrence and the door of the room was broken open. The dead body of the victim was brought down. He informed the local police station in writing about the incident. The complaint was written by his brother-in-law, Subimal Chakraborty (P.W.9) as per his instruction. He proved his signature on the written complaint (Exhibit 1/1). He signed on it (Exhibit 2/1). Inquest was made on the dead body of his sister and he signed on the inquest report (Exhibit 3/1). Police seized one white tool, a suicide note and one printed saree. He signed on the seizure list (Exhibit 4/1). His sister had passed BA examination. He knew the handwriting of his sister. The appellant was suspicious of his sister. He proved the suicide note (Exhibit 5). He proved his signature on the suicide note (Exhibit 5/1). He identified the appellant. 14. In cross-examination, he admitted that he did not give any sample of handwriting of his sister to the police for comparing with the handwriting in the suicide note. He stated that his sister was suffering from depression on account of not having any child. The appellant was arrested from his house by the police. 15. P.W.6 is the younger sister of the victim. She deposed that the victim was married to the appellant in 1991. The appellant used to torture her. During her pregnancy she was tortured and assaulted by the appellant. The child in her womb died due to such torture. The appellant wrote down in a paper that he would not torture her sister in future. The victim died at her matrimonial home on 7.4.2002. The appellant came to their house and reported to her mother that he had assaulted her sister who committed suicide on that day. She identified the suicide note written by her sister. 16. In cross-examination, she admitted that she was interrogated by the police. She stated everything that had happened to the police. 17. P.W.7 is the brother-in-law of the victim. He deposed that the victim had been married to the appellant. The couple resided in the house of the appellant. She committed suicide at her matrimonial home. The appellant used to assault and torture the victim mentally and physically. She stated everything that had happened to the police. 17. P.W.7 is the brother-in-law of the victim. He deposed that the victim had been married to the appellant. The couple resided in the house of the appellant. She committed suicide at her matrimonial home. The appellant used to assault and torture the victim mentally and physically. He proved his signature on the inquest report. 18. P.W.9 is the brother-in-law of P.W.1. He stated that the victim committed suicide at her matrimonial home. He identified the appellant. He deposed that at the time of investigation a suicide note was recovered. He wrote down the written complaint as instructed by P.W.1. He put his signature thereon. He proved the written complaint (Exhibit 1/3). He also proved his signature on the said complaint. In cross-examination, he stated that he did not go to the police station in the afternoon on 07.04.2002 but he went at night. Letter of complaint was written by him in the afternoon. 19. P.W. 10 is wife of P.W. 1. She deposed that the victim was married to the appellant. She committed suicide by hanging herself at her matrimonial home on 07.04.2002. She also deposed that the victim was mentally and physically tortured by the appellant in her matrimonial home. On 07.04.2002 the appellant came to their house and informed them that the victim had taken sleeping pills and asked them to go and see her. Thereafter, P.W. 10 along with her husband (P.W. 1) went to the matrimonial home of the victim. Her husband opened the window and found that the victim was hanging from the ceiling fan. Thereafter they returned home. She identified the suicide note written by the victim marked as exhibit-5. She stated that she went to the house of the appellant at about 11.30a.m. to 12 noon on 07.04.2002. 20. P.Ws 11,12, and 13 are the neighbours of the appellant. P.W. 11 stated that the appellant resides adjacent to her house. The victim died five to six years ago. She was subjected to severe torture on daily basis by the appellant. The victim committed suicide by hanging, unable to bear such torture. She heard her saying "Oh Mago" (Oh! My Mother!). In cross-examination she stated that police interrogated her but only asked her about her own name and names of her husband and father-in-law. 21. She was subjected to severe torture on daily basis by the appellant. The victim committed suicide by hanging, unable to bear such torture. She heard her saying "Oh Mago" (Oh! My Mother!). In cross-examination she stated that police interrogated her but only asked her about her own name and names of her husband and father-in-law. 21. P.Ws 12 and 13, however, merely stated that the victim committed suicide by hanging. 22. P.Ws. 2 and 3 are independent witnesses who were present at the place of occurrence when the dead body of the victim was recovered. P.W. 2 deposed that the victim was subjected to torture by the appellant. He found that the police had brought down the dead body and seized one tool, suicide note and one saree. He proved his signature on the suicide note marked as exhibit 5/2. He also proved his signature on the seizure list marked as exhibit 4/2 as well as in the inquest report marked as exhibit 3/2. P.W. 3 was declared hostile. He proved his signature on the inquest report marked as exhibit 3/3. 23. P.W. 4 is the Autopsy Surgeon. He conducted the post mortem examination on 08.04.2002 at Sreerampur P.G. Hospital. Upon conducting the post mortem examination, he found one non-continuous legature mark around the neck and in his report he opined that death was caused due to the effects of hanging, anti-mortem in nature. In cross-examination, he stated that if a person is assaulted by stick, wood, belt or blunt object, there would be some reaction and significance on the part of the body. He did not find any significance throughout the body of the victim. 24. P.W. 5 is a constable attached to Nimta Police Station, who brought the dead body of the victim and identified the body for post mortem examination. 25. P.W. 8 is an ASI of police and was attached to Nimta Police Station in such capacity on the date of occurrence. He received the written complaint on 07.04.2002 from Pritwish Chakraborty. He drew upon the formal FIR marked as exhibit-8. 26. P.Ws. 14 and 15 are the investigating officers of the case. P.W. 14 went to the P.O., prepared rough sketch map with index and recorded the statements of the witnesses. He held the inquest on the dead body of the deceased and prepared inquest report marked as exhibit 3/5. He drew upon the formal FIR marked as exhibit-8. 26. P.Ws. 14 and 15 are the investigating officers of the case. P.W. 14 went to the P.O., prepared rough sketch map with index and recorded the statements of the witnesses. He held the inquest on the dead body of the deceased and prepared inquest report marked as exhibit 3/5. He seized one plastic tool-cum-table, one suicide note under a seizure list marked as exhibit 4/3. He identified the suicide note. He arrested the accused person. Due to routine transfer, he handed over the case docket to his superior. In cross-examination, he stated that UD case was started at 12.50p.m. before lodging F.I.R. Suicide note was not written on any fresh white paper. He did not send the note for handwriting examination. P.W. 15 submitted charge sheet in the instant case. 27. From the evidence of the relations of the victim viz. P.W. 1, 6, 7, 9 and 10, it is evident that the victim married the appellant in 1991. After the marriage she was subjected to ill-treatment including physical assault. She narrated such woes to her relations. There is evidence on record that while she was pregnant she had been assaulted and as a result the child died in her womb. There is evidence on record that such torture was of a continuous nature and the victim was assaulted off and on by the appellant. The evidence of the relations is corroborated by the independent witnesses like P.W. 2 and P.W. 11. P.W. 11 is a neighbour of the appellant and stated that she heard the victim exclaim 'Oh Mago' (Oh! My Mother!) on the date of the occurrence. Such corroborative evidence from independent sources establish the continuous mental and physical torture, including physical assault, inflicted upon the housewife which clearly establishes the ingredients of the offence punishable under Section 498A of the Indian Penal Code. 28. Coming to the charge under Section 306 of the Indian Penal Code, it has been argued that there is nothing to show that the conduct of the appellant had abetted the suicide of the victim. It is also submitted that the suicide note was not examined by a handwriting expert and, therefore, it was unsafe to rely on the version of the relation witnesses to come to a finding that it was written by the victim herself. It is also submitted that the suicide note was not examined by a handwriting expert and, therefore, it was unsafe to rely on the version of the relation witnesses to come to a finding that it was written by the victim herself. Even if the suicide note, were to be believed, the contents thereof are not corroborated by independent evidence and does not show that the appellant had abetted suicide of the victim. 29. With regard to the proof of the suicide note, the prosecution has relied on the evidences of P.W. 1, 6 and 10 to show that it was the hand-writing of the victim. P.Ws 1, 6 and 10 are close relations of the victim. The victim was an educated lady and used to work in an office. It is, therefore, most natural that the said witnesses were aware of her handwriting in the normal course of events and their evidence could be relied upon to prove the handwriting of the victim. It is trite law that in order to prove the handwriting of a person, opinion of the individuals who are acquainted with such handwriting in the ordinary course of business can be relied upon to prove such fact. Moreover, the facts and circumstances under which the suicide note was seized by the police officials from the place of occurrence, immediately after discovery of the dead body of the victim in her locked room at the matrimonial home, rules out any possibility of fabrication of the said note to falsely implicate the appellant. There is ample evidence on record including that of P.W. 2, an independent witness, to indicate that the suicide note was recovered from the locked room where the dead body of the victim was found hanging. The door of the room was broken upon by the police and immediately thereafter the suicide note was recovered near the dead body of the victim. Prompt and contemporaneous recovery of the suicide note clearly rules out any scope for subsequent fabrication of such evidence to falsely implicate the appellant and I am of the opinion that the said note has been proved beyond reasonable doubt to be in the handwriting of the victim in the facts and circumstances of the case. Prompt and contemporaneous recovery of the suicide note clearly rules out any scope for subsequent fabrication of such evidence to falsely implicate the appellant and I am of the opinion that the said note has been proved beyond reasonable doubt to be in the handwriting of the victim in the facts and circumstances of the case. Failure of the investigating agency to verify the suicide note with admitted writing of the victim by a handwriting expert in the aforesaid factual backdrop cannot militate against the genuineness of the prosecution case at all. Reliance on the judgment reported in (2013)14 SCC 678 (Indrajit Sureshprasad Bind & Ors. v. State of Gujarat) in this regard is wholly misplaced. In the said report, there was grave doubt as to whether the victim had at all written the letter or not. In the instant case, the suicide note was contemporaneously discovered from the locked room of the victim herself and was duly proved by the evidence of her relations. Another authority relied by the appellant in (2012)12 SCC 406 (Ajay Kumar Parmar v. State of Rajasthan) is also of little assistance of him, as in the said report the Court had itself compared the questioned document with admitted writings as there was no evidence to prove the authorship of such document. On the other hand, in the present case there is ample evidence of prosecution witnesses viz. P.Ws. 1, 6 and 10 who were acquainted with the handwriting of the victim to establish that the suicide note was by her hand. Said report is, therefore, clearly distinguishable on facts. It has been argued that the contents of the suicide note, even if believed, does not establish the abetment by the appellant of the commission of suicide by the victim. Reliance has been placed (2017)1 SCC 433 (Gurcharan Singh v. State of Punjab) in support of such contents. In the said case the victim had committed suicide and a suicide note implicating the in-laws had been recovered. The Court analysed the suicide note and declined to rely on it as proof of abetment as there was no reference or disclosure of any specific incident leading to the grievances expressed therein against the in-laws of the victim. Applying the same parameter, let me examine the suicide note in this case. Translated version of the suicide note is referred as follows: "He did not let me survive. Applying the same parameter, let me examine the suicide note in this case. Translated version of the suicide note is referred as follows: "He did not let me survive. I am going to be finished. I have not been sleeping for three months. I take one sleeping peel. He has awaken me from slumber by strucking me with belt. I am compelled to do this for getting relief from him. While I was sleeping in the morning he hurt me with belt. He hurt me with belt so roughly that I can not tolerate it anymore. If I revolt he tortures me. Thus he has been torturing me since 11 years. How can I live. He suspects me wrongly. I want to live with respect. I have tried a lot." 30. Suicide note clearly narrates the specific incident of assault on the victim by a belt. The contents of the suicide note is corroborated by independent evidence of P.W. 11, a neighbour of the victim, who stated that the victim used to exclaim 'Oh Mago' (Oh! My Mother!) due to torture meted out to her. 31. It is true that the Autopsy Surgeon did not find any external injury on the dead body of the victim. Opinion of the autopsy surgeon in cross-examination is hypothetical in nature and cannot override the version of the witnesses of fact as to physical assault on the victim. Such opinion of the medical witness also does not wholly overrule the prosecution case of assault on the victim. It must be borne in mind that the assault with belt may not always result in external injury on the body of the victim but would certainly create severe mental trauma in the mind of a housewife which would cause such cathartic impact that she is likely to commit suicide as a consequence of such assault. Hence, I am of the opinion that the contents of the suicide note do not suffer from vagueness or lack of specification as was in the aforesaid case relied upon by the appellant. On the other hand, the version in the suicide note is supported by contemporaneous evidence of independent witnesses of torture including physical assault, on the victim which compelled her to end her life. On the other hand, the version in the suicide note is supported by contemporaneous evidence of independent witnesses of torture including physical assault, on the victim which compelled her to end her life. The contents of the suicide note when read in the light of the evidence on record clearly establish that the assault and ill treatment of the victim by the appellant had, in fact, goaded the housewife to commit suicide, thereby establishing the offence under Section 306 of the Indian Penal Code by a reasonable doubt. 32. Other judgments relied upon by the appellant are also in apposite. (2010)12 SCC 190 (S.S. Chheena v. Vijay Kumar Mahajan & Anr.) does not relate to a case of physical assault and ill-treatment of a housewife by her husband resulting in her suicide. (2013)10 SCC 48 (Pinakin Mahipatray Rawal v. State of Gujarat) is also distinguishable on facts. In the said report, the Apex Court held that extra-marital affair of a husband without anything more does not constitute abetment of commission of suicide. In the instant case, there is clear evidence of physical assault on the victim compelling her to end her life in her matrimonial home. 33. For the aforesaid reasons, I am of the opinion that the prosecution has been able to prove its case beyond reasonable doubt. Accordingly, the conviction of the appellant under Section 498A and 306 of the Indian Penal Code are upheld. Sentence imposed upon him for commission of the offence under Section 498A of the Indian Penal Code is also upheld. Coming to the sentence imposed upon the appellant under Section 306 of the Indian Penal Code, I find that the incident occurred eleven years after marriage and it appears that the appellant was labouring under unfounded suspicion with regard to his wife which prompted him to indulge in such violent behaviour, ultimately compelling the victim to commit suicide. Hence, I reduce the sentence imposed on the appellant for the offence punishable under Section 306 of the Indian Penal Code and direct that he shall suffer rigorous imprisonment for five years and shall pay fine of Rs.5,000/-, in default to suffer rigorous imprisonment for a further period of six months for the offence punishable under Section 306 of the Indian Penal Code. Both the sentences shall run concurrently. 34. Both the sentences shall run concurrently. 34. Period of detention suffered by the appellant during investigation, enquiry and trial shall be set off against the substantive sentence imposed upon him in terms of 428 of the Code of Criminal Procedure. 35. The appeal is accordingly disposed of. In view of the disposal of the appeal, the connected application being CRAN 1130 of 2016 is also disposed of. 36. Copy of the judgment along with the Lower Court Records be sent down to the Trial Court at once for necessary compliance. 37. Urgent photostat certified copy of the order, if applied for, be given to the parties on priority basis.