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2017 DIGILAW 487 (ORI)

Preety Manjaree Devi v. State of Orissa

2017-04-27

S.K.SAHOO

body2017
JUDGMENT : S.K. SAHOO, J. 1. Heard Mr. Anirudha Das, learned counsel for the petitioner and Mr. Chitta Ranjan Swain, learned Addl. Standing Counsel for the State. 2. The petitioner has challenged the impugned order dated 02.01.2007 passed by the learned S.D.J.M., Bhubaneswar in G.R. Case No.3433 of 2006 in taking cognizance of the offences under sections 498-A/306/34 of the Indian Penal Code and issuance of process against her. The said case arises out of Khurda Mahila P.S. Case No. 143 of 2006. 3. The prosecution case, as per the first information report lodged by one Smt. Shantilata Mohanty before the Inspector in charge, Mahila Police Station, Bhubaneswar on 29.08.2006 is that her youngest daughter Anima Mohanty (hereinafter ‘the deceased’) married to one Bidhu Bhusan Mohanty in accordance with Hindu rites and customs on 14.07.2001. At the time of marriage, as per the demand of the bridegroom side, cash of Rs.3,00,000/-(rupees three lakhs only), gold ornaments and other household articles were given as dowry. One year after the marriage, the deceased gave birth to a male child namely Aryaman. Few months after the marriage, the informant came to know from the deceased that her in-laws family members were torturing her physically and mentally. The deceased used to call her elder sister Purnima over telephone and used to convey her sorrow before her and she had also written letters in that connection. The deceased was also assaulted by her in-laws in connection with demand of dowry. It is further stated in the first information report that coming to know about such demand, the informant had given a sum of Rs.20,000/-(rupees twenty thousand only) and amicable settlement was arrived at between the parties and the husband of the deceased assured to behave with the deceased properly but in spite of such assurance, the deceased was continued to be tortured more and more by her in-laws family members. 4. It is further stated that in the first informant report that the informant came to know that the husband of the deceased had kept illicit relationship with the petitioner and the petitioner used to visit the in-laws house of the deceased with the husband of the deceased. When the deceased protested about the conduct of her husband and the petitioner, she was assaulted not only by her husband but also by the petitioner on several occasions either by katari or by chappal. When the deceased protested about the conduct of her husband and the petitioner, she was assaulted not only by her husband but also by the petitioner on several occasions either by katari or by chappal. The deceased used to convey about her torture to the informant but the informant was not reporting the matter before police being afraid that they would be blamed in the society. 5. It is further stated in the first information report that on the Rakhi Purnima day of the year 2006 (09.08.2006), in the midnight at about 2 o’clock, the petitioner and her mother came to the house of the deceased, assaulted her by means of chappal, twisted her fingers and threatened her with dire consequences. Three days thereafter, again the petitioner assaulted the deceased when the husband of the deceased was holding her. Subsequently the husband of the deceased again assaulted her for which she sustained bleeding injury on her lips. It is further stated that on 27.08.2006 when Ganesh Puja was being celebrated, the husband of the deceased had been to the office of the petitioner to celebrate her birthday. When the deceased protested, her husband threatened her with dire consequences. The informant came to know on 29.08.2006 in the evening hours about the death of the deceased and came to the rented house of the deceased and found the deceased lying dead that the husband of the deceased was not present and the son of the deceased was telling frequently that his father had strangulated the deceased and thereafter, hanged her dead body. The informant suspected the death of the deceased to be a preplanned murder which was committed by her husband, in-laws family members and the petitioner. 6. On the basis of such first informant report, Khurda Mahila P.S. Case No.143 of 2006 was registered under sections 498-A/304-B/302/34 of the Indian Penal Code and section 4 of the Dowry Prohibition Act against the petitioner and other in-laws of the deceased including her husband Bidhu Bhusan Mohanty. 7. During course of investigation, the dead body was sent for post mortem examination and the doctor opined the cause of death to be asphyxia as a result of hanging. The investigating officer visited the spot, utilized the services of the scientific team, seized the incriminating materials, sent the viscera to SFSL and also seized the dowry articles, personal diary of the deceased etc. The investigating officer visited the spot, utilized the services of the scientific team, seized the incriminating materials, sent the viscera to SFSL and also seized the dowry articles, personal diary of the deceased etc. and on completion of investigation, finding prima facie case against the petitioner as well as the husband of the deceased namely Bidhu Bhusan Mohanty under sections 498-A/306/34 of the Indian Penal Code, charge sheet was submitted on 27.12.2006 showing the petitioner as an absconder. 8. Mr. Anirudha Das, learned counsel appearing for the petitioner contended that the order of taking cognizance suffers from non-application of mind and there is no prima facie material to attract the ingredients of such offences. It is further contended that since the petitioner is no way related to the husband of the deceased, even if it is accepted for the sake of argument that the husband of the deceased had illicit relationship with the petitioner, the petitioner cannot be prosecuted for an offence under section 498-A of the Indian Penal Code. He further contended that there is no proximate link between the conduct of the petitioner and with the commission of suicide by the deceased rather the materials available on record indicate that there was some quarrel on the date of occurrence between the deceased and her husband which led to the commission of suicide of the deceased and therefore, the submission of charge sheet by the investigating officer under section 306 of the Indian Penal Code was not proper and justified. Learned counsel for the petitioner relied upon the decision of the Hon’ble Supreme Court in case of U. Suvetha -Vrs.-State by Inspector of Police reported in (2009) 43 Orissa Criminal Reports (SC) 512, M. Mohan -Vrs.-State represented by the Deputy Superintendent of Police reported in (2011) 48 Orissa Criminal Reports (SC) 961 and Siddharth Arora -Vrs.-State of Orissa reported in (2012) 51 Orissa Criminal Reports 329. 9. Mr. Chitta Ranjan Swain, learned Addl. 9. Mr. Chitta Ranjan Swain, learned Addl. Standing Counsel for the State on the other hand contended that the materials available on record clearly indicate that the petitioner aided the commission of suicide by her conduct and she was not only participating in the assault of the deceased on a number of occasions but her conduct in keeping illicit relationship in the presence of the deceased had created so much of mental torture on the deceased that she was compelled to take extreme step to end her life and therefore, the ingredients of offence under section 306 of the Indian Penal Code is clearly attracted against the petitioner. 10. Considering the submissions made by the learned counsels for the respective parties and coming first to the ingredients of the offence under section 498-A of the Indian Penal Code which deals with the cruelty by the husband or the relatives of the husband of the woman, it is the requirement of law that (i) the prosecution must prove that the woman was subjected to cruelty or harassment; (ii) such cruelty or harassment was shown either by the husband of the woman or by the relative of her husband; (iii) such cruelty was with a view to drive her to commit suicide; or to cause grave injury or danger to her life, limb or health, whether mental or physical; or (iv) such harassment was with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security; or on account of failure by such woman or any person related to her to meet such unlawful demand. 11. The Hon’ble Supreme Court in case of U. Suvetha -Vrs.-State by Inspector of Police reported in (2009) 43 Orissa Criminal Reports (SC) 512, while considering the point whether the term “relative of a husband of a woman” within the meaning of section 498-A of the Indian Penal Code should be given an extended meaning, held as follows:- “18. By no stretch of imagination a girl friend or even a concubine in an etymological sense would be a ‘relative’. The word ‘relative’ brings within its purview a status. Such a status must be conferred either by blood or marriage or adoption. If no marriage has taken place, the question of one being relative of another would not arise.” 12. By no stretch of imagination a girl friend or even a concubine in an etymological sense would be a ‘relative’. The word ‘relative’ brings within its purview a status. Such a status must be conferred either by blood or marriage or adoption. If no marriage has taken place, the question of one being relative of another would not arise.” 12. In view of the observation of the Hon’ble Supreme Court, even if it is accepted that the petitioner was a mistress of the husband of the deceased, she would not come within the definition of ‘relative’. Therefore, the ingredients of offence under section 498-A of the Indian Penal Code would not be attracted against her. 13. Therefore, I am of the view that the submission of charge sheet against the petitioner under section 498-A of the Indian Penal Code and consequential taking of cognizance and issuance of process against the petitioner was not proper and justified. 14. Now, coming to the offence under section 306 of the Indian Penal Code, law is well settled that an offence under section 306 of the Indian Penal Code would stand only if there is an abetment of commission of the crime. Section 107 of the Indian Penal Code states that a person can be stated to have abetted the doing of a thing, if he instigates any person to do that thing or engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of such conspiracy, or the person intentionally aids, by any act or illegal omission, the doing of that thing. The abetment of suicide involves a mental process of instigating or intentionally aiding a person in doing of a thing. There should be clear mens rea to commit the offence under section 306 of the Indian Penal Code. Merely because a married woman committed suicide within seven years of her marriage does not ipso facto result in the presumption of abetment of suicide by her husband or his relatives. There should be clear mens rea to commit the offence under section 306 of the Indian Penal Code. Merely because a married woman committed suicide within seven years of her marriage does not ipso facto result in the presumption of abetment of suicide by her husband or his relatives. Since the petitioner is not a relative, in view of the decision of the Hon’ble Supreme Court in case of U. Suvetha (supra), presumption under section 113-A of the Evidence Act will not be attracted in the case inasmuch as such presumption is raised only against the husband or relative of the husband of a woman. 15. In case of M. Mohan -Vrs.-State represented by the Deputy Superintendent of Police reported in (2011) 48 Orissa Criminal Reports (SC) 961, held as follows:- “45. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. 46. The intention of the Legislature and the ratio of the cases decided by this Court are clear that in order to convict a person under Section 306 IPC, there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide. xxx xxx xxx xxx 49. In the instant case, what to talk of instances of instigation, there are even no allegations against the appellants. There is also no proximate link between the incident of 14.01.2005 when the deceased was denied permission to use the Qualis car with the factum of suicide which had taken place on 18.01.2005. 50. Undoubtedly, the deceased had died because of hanging. The deceased was undoubtedly hyper-sensitive to ordinary petulance, discord and differences which happen in our day-to-day life. In a joint family, instances of this kind are not very uncommon. Human sensitivity of each individual differs from person to person. Each individual has his own idea of self-esteem and self-respect. Different people behave differently in the same situation. It is unfortunate that such an episode of suicide had taken place in the family. In a joint family, instances of this kind are not very uncommon. Human sensitivity of each individual differs from person to person. Each individual has his own idea of self-esteem and self-respect. Different people behave differently in the same situation. It is unfortunate that such an episode of suicide had taken place in the family. But the question remains to be answered is whether the appellants can be connected with that unfortunate incident in any manner?” 16. In case of Siddharth Arora -Vrs.-State of Orissa reported in (2012) 51 Orissa Criminal Reports 329, this Court while relying upon the decision of the Hon’ble Supreme Court in case of M. Mohan (supra), Swamy Prahaladdas -Vrs.-State of M.P. reported in 1995 S.C.C. (Criminal) 943 and S.S. Chheena -Vrs.-Vijay Kumar Mahajan reported in (2010) 47 Orissa Criminal Reports (SC) 376, held that there is absolutely no prima facie material to show that the petitioner abetted the suicidal death of the deceased in any manner and therefore, the offence under section 306 of the Indian Penal Code are not attracted. 17. In the present case, apart from the first information report, the statement of one Biswa Ranjan Mohanty who is the nephew of the husband of the deceased is also relevant and he has stated that on the Rakhi Purnima day at about 2 o’clock in the night, the petitioner along with her mother had come to the house of the deceased and quarrelled with her and on that occasion also the deceased was assaulted and on some occasion, the husband of the deceased used to come with the petitioner and they used to sleep in the bedroom of the deceased for which the deceased was very much upset. He further stated that on many occasions, there used to be quarrel between the deceased and her husband relating to the petitioner and the husband of the deceased had given in writing that she would not keep illicit relationship with anybody. The statement of one Purnima @ Tiki Mohanty who is the elder sister of the deceased also indicates that the husband of the deceased was sleeping in her bedroom with the petitioner and the petitioner was also assaulting the deceased on some occasion. The statement of one Purnima @ Tiki Mohanty who is the elder sister of the deceased also indicates that the husband of the deceased was sleeping in her bedroom with the petitioner and the petitioner was also assaulting the deceased on some occasion. Though it is the contention of learned counsel for the petitioner that there was no proximately link between the conduct of the petitioner with the commission of suicide by the deceased but on perusal of the materials available on record, I find that there is prima facie material that not only the petitioner kept illicit relationship with the husband of the deceased to the knowledge of the deceased but also regularly visiting the house of the in-laws of the deceased and on some occasions, she had assaulted the deceased and she was even sleeping in the bedroom of the deceased with her husband. All these materials prima facie indicate that by such act, the petitioner intentionally aided the commission of suicide by the deceased. Therefore, even if section 113-A of the Evidence Act is not attracted as the petitioner is not a relative of the husband of the deceased but since otherwise there are materials on record that she had abetted the commission of suicide of the deceased by her conduct, I am of the view that the submission of charge sheet against the petitioner under section 306 of the Indian Penal Code and consequential order of taking cognizance of such offence cannot be faulted with. 18. Accordingly, the CRLMC application is allowed in part and order of taking cognizance and issuance of process under section 498-A of the Indian Penal Code stands quashed. The order of taking cognizance and issuance of process under section 306 of the Indian Penal Code against the petitioner stands confirmed.