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2018 DIGILAW 182 (GAU)

NUMAL BHARALI v. STATE OF ASSAM

2018-01-31

RUMI KUMARI PHUKAN

body2018
JUDGMENT & ORDER : 1. This appeal is directed against the judgment and order dated 16.11.2011 passed by learned Sessions Judge, Jorhat in Sessions case No.19 (JJ) of 2009 (GR Case No. 907 of 2008) convicting the accused/appellant U/S 306 IPC and sentencing him to undergo rigorous imprisonment for five years and also pay a fine of Rs.1,000/- and in default of payment of fine, simple imprisonment for two months and under section 498 (A) IPC simple imprisonment for two years and also to pay a fine of Rs. 500/- in default further simple imprisonment for another fifteen days and both the sentences shall run concurrently. Death is always unfortunate and it become mere painful, when mother of two minor children commits suicide. 2. The brief facts which are relevant to dispose the appeal are recapitulated as under: According to the case of the prosecution, Gita Bharali (sister of the informant) was married to the accused appellant nine years back in the year 1999 and out of the wedlock two children were born. On 14.8.2008, elder brother of the accused informed over telephone at the Aunts house that Gita expired. Then the Family Member of Gita went to their house and found that Gita committed suicide. In the meantime, the accused person informed the police about the commission of suicide by his wife in the bathroom and the police registered a U.D. Case as on 14.8.2008. But the family members of the deceased suspecting the same as a case of murder lodged an FIR on 18.8.2008 with the allegation that the present accused person along with other family members (in laws) tortured said Gita on the demand of money since the day of her marriage and prior to one months of the incident such torture increased for which she might have committed suicide or it is a case of murder by the accused persons. 3. On the basis of the FIR the Criminal law was set into motion and after due investigation charge-sheet was submitted against the present accused person U/S 498 (A) /306 IPC. The accused appellant faced the trial and denied the charge. 4. Prosecution in support of the case examined as many as eight witnesses including Medical Officer and Investigating Officer and defence also examined one witness. Plea of defence is total denial. The accused appellant faced the trial and denied the charge. 4. Prosecution in support of the case examined as many as eight witnesses including Medical Officer and Investigating Officer and defence also examined one witness. Plea of defence is total denial. At the conclusion of the trial by the impugned judgment convicted the accused appellant, hence the appeal. 5. Mr. B. K. Mahajan, learned counsel appearing on behalf of the appellant vehemently argued the appeal before this Court. It is submitted that there is absolutely no any credible evidence on record to establish the case of abetment of suicide by the appellant U/S 306 IPC nor there is any evidence to substantiate the matter of cruelty within the purview of Section 498 (A) IPC, so the conviction under said section of law could not be sustained and bad in law. He further strenuously submitted before this Court that there is no evidence of infliction of torture upon the deceased by the appellant either prior to the incident nor even earlier, during the long span of marital life to reflect that the appellant had incited the deceased to commit suicide. Accordingly, it has been urged that the learned trial Court erred in convicting the appellant and has failed to properly appreciate the evidence on record. Learned counsel Mr. Mahajan has led this Court through the evidence on record and has also refers several citations of the Honble Supreme Court as well as Honble Gauhati High Court as below: (i) (2010) 1 SCC 707 Amalendu Paul @ Jantu vs. State of West Bengal (2) (2010) 1 SCC 750 Gangula Mohan Reddy vs. State of Andhra Pradesh (3) (2010) 12 SCC 190 S.S. Chheena vs. Vijay Kumar Mahajan & anr. (4) (2010) 9 SCC 73 Durga Prasad and another-vs-State of Madhya Pradesh. (5) (2010) 4 GLT 492 Rajeeb Neog vs. State of Assam. 6. The learned counsel appearing on behalf of the State Respondent has supported the Judgment of the Court below contending that due to the harassment on demand of dowry on the part of the accused appellant the deceased was compelled to commit suicide. 7. I have carefully considered the submission of the learned counsel for the parties and perused the evidence available on record. 7. I have carefully considered the submission of the learned counsel for the parties and perused the evidence available on record. On a close careful scrutiny of the oral evidence of the prosecution witness PW 1 (sister) PW 2 (the brother) and PW 4 (the sister) who are the only relative examined by the prosecution, it is found that the appellant married the deceased in the year 1999 and out of the wedlock two children were born. The aforesaid witnesses categorically stated in their testimony before the trial Court that on the day of occurrence on being informed, from the house of the accused, that the deceased has committed suicide, they rushed to the house of the accused and found the dead body of Gita lying in the bathroom and she was found to be hanged with a chadar on the neck but they have serious doubt about commission of murder by the accused appellant as the tongue of the deceased was not protruded (as stated by PW 2) but evidence of Medical Officer, PW 7, reveals that tongue of deceased was protruded. 8. The PW 1 has stated in her evidence that prior to one month of the incident her deceased sister while came to their house told that she was assaulted by accused by demanding money and she asked PW 1 for Rs.20,000/- which she cannot paid. Deceased often used to ask PW 1 for money over phone. Similarly the PW 4 also casually stated that deceased used to tell her that accused appellant tortured by demanding money for which she paid Rs.5000/- to deceased sister and could not pay more. PW 2 was reported by PW 1 about the demand of money by the appellant but the PW 2 has no personal knowledge about such demand and torture etc, so his evidence cannot be read in support of the charges. On the other hand, the evidence of PW 1 and 4 are totally vague and clumsy as regards the manner of torture, date and time of the demand of dowry upon the deceased by the appellant. Such a casual one line statement of the witnesses that the appellant used to assault the deceased on the demand of money cannot at all sufficient to prove any sort of cruelty upon the deceased as envisaged under the provisions of 498 (A) IPC. Such a casual one line statement of the witnesses that the appellant used to assault the deceased on the demand of money cannot at all sufficient to prove any sort of cruelty upon the deceased as envisaged under the provisions of 498 (A) IPC. It is to be noted that PW 1 stated about only one incident that prior to one month of the incident deceased asked for money from her but she has not utter a single word about the torture since after the marriage as alleged in the FIR. 9. It cannot be loose sight that the marriage between parties survive for more than nine years and two children were born out of the wedlock and the witnesses in their cross examination has clearly admitted that there was cordial relation between the parties and the financial condition of the appellant was very sound who hold a permanent job in a school. In such backdrop the statement of the witnesses that the accused demanded money from the deceased is found to be illusory. Moreover, no such demand was made by the appellant to any of the witnesses and whatever money was given it was to the deceased as asked by her only, and the manner of torture upon the deceased has mentioend. In other sense, none of the witnesses can cite single example of inflicting torture upon the deceased to indicate cruelty within the purview of section 498 (A) IPC. 10. In Giridhar Shankar Tawade vs. State of Maharashtra (2002) 5 SCC 177 Honble Supreme Court has given a succinct enumeration of the object and ingredient of Section 498 (A) which is quoted below: Para 3. The basic purport of the statutory provision is to avoid cruelty which stands defined by attributing a specific statutory meaning attached thereto as noticed hereinbefore. Two specific instances have been taken note of in order to ascribe a meaning of the word cruelty as is expressed by the legislature; whereas explanation (a) involves three specific situations viz. The basic purport of the statutory provision is to avoid cruelty which stands defined by attributing a specific statutory meaning attached thereto as noticed hereinbefore. Two specific instances have been taken note of in order to ascribe a meaning of the word cruelty as is expressed by the legislature; whereas explanation (a) involves three specific situations viz. (i) to drive a woman to commit suicide, (ii) to cause grave injury, or (iii) danger to life, limb or health, both mental and physical and thus, involving a physical torture or atrocities; in explanation (b) there is absence of physical injury but legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury; whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute, since the same would embrace the attributes of cruelty in terms of Section 498 (A) . 11. In order to justify a conviction under the later provision there must be some cogent and material evidence on record. As discussed above, we have on record some vague evidence of the two witnesses (sisters of deceased) as regard the manner of deceased as well as the appellant, which is not enough to bring home the charge U/S 498 (A) IPC. 12. In Durga Prasad (supra) the order of conviction U/S 304 B, 498 (A) , 306 IPC was reversed by holding that benefit of doubt should be given as except bold statement of victims mother and brother alleging that the victim had been subjected to cruelty and harassment prior to her death, no other evidence adduced to prove that she committed suicide on account of the same. 13. Also let us discuss the other evidence on record. PW 3 Mr. K. Kakati the witness to the inquest report, Ext.2. He has no knowledge about the incident. PW 5 D. Borkataky is the officer who prepared the inquest report Ext.2 and he was not cross-examined. It is to be noted, that said inquest report was prepared immediately after the occurrence and prior to filing of FIR and mere perusal of the said report it reflect that there was no mark of injury on the dead body and cause of death stated to be hanging. 14. The medical officer Dr. It is to be noted, that said inquest report was prepared immediately after the occurrence and prior to filing of FIR and mere perusal of the said report it reflect that there was no mark of injury on the dead body and cause of death stated to be hanging. 14. The medical officer Dr. B.Dutta/PW 7 who conducted the post mortem examination upon the deceased has given the following findings. "External appearance- Healthy female dead body. Rigor mortis absent. Tongue protruded between the teeth Bruise present in and around the ligature mark An oblique non-centrama ligature mark present high up on the neck panclmentifation of ligature mark present on dissection. Hanging is ante mortem. Opinion= Cause of death is asphyxia as a result of hanging. The above findings of inquest report as well as the post mortem report reflect no sort of injury on the person of the deceased and clearly speaks about the death by suicidal hanging. 15. PW 6, P. Gogoi has stated about the investigation, he carried out on receipt of FIR as on 18.8.08. He also stated about the U.D. Case registered as regards the death of the deceased on receipt of the informant from the appellant as on 14.8.08 and also about the preparation of inquest report, Ext.2 and collection of Post Mortem Report Ext.4. On the other hand PW 8 D. Chetia has stated about the registration of the U.D.Case on 14.8.08 as stated by the PW 6. 16. We may also refer to the evidence of DW 1 B K Das, who is elder brother of the accused appellant. In his evidence it has been stated that on the day of occurrence on hearing the hue and cry of the appellant that Gita has committed suicide he went to their house and found Gita hanging in the bath room then he immediately informed the sister of the deceased Gita and also informed police. He was not cross-examined by the prosecution on any material aspects. 17. Now we need to address the issue regarding applicability of Section 306 IPC in the facts of the present case. He was not cross-examined by the prosecution on any material aspects. 17. Now we need to address the issue regarding applicability of Section 306 IPC in the facts of the present case. The provision of Section 306 IPC deals with abetment of suicide and Section 107 deals with abetment of a thing which read as follows: "306 Abetment of suicide- If any person commits suicide whoever abets the commission of such suicide shall be punished with imprisonment of either description which may extend to 10 years and also liable to be fine. 107- Abetment of a thing- A persons abets the doing of a thing who First instigate any person to do that thing or, Secondly,- Engages with one or moiré other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in presence of that conspiracy, and in order to the doing of that thing omission, the doing of that thing.- Explanation 1-A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Explanation 2- Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act" 18. While dealing with the legal provisions as regards the section 306 IPC the Honble Supreme Court has spoken through the catena of decisions, some of which discussed below: In Ranbir Singh vs. State of Punjab (2004) 13 SCC 129 , it has been held that abetment is a mental process of instigating a person or intentionally aid that person in doing a thing. In cases of conspiracy it would involve that mental process or entering into conspiracy for doing 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 an offence U/S 306 IPC. 19. In cases of conspiracy it would involve that mental process or entering into conspiracy for doing 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 an offence U/S 306 IPC. 19. In Gangula Mohan (supra) regarding the sustainability of conviction U/S 306 IPC, it has been held that without a positive act on the part of the accused to instigate or aid in committing suicide a conviction cannot be sustain. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing a thing. In order to convict a person U/S 306 IPC there has to be a clear mensrea to commit the offence. It also requires an active act or direct act which leads 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 commits suicide. It is also reiterated, it if appears to Court that a victim committing suicide was hypersensitive or ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance and discord and differences were not expected to similarly circumstance 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. 20. In case of Amalendu Paul (supra) while dealing with the offence U/S 306/498 (A) IPC it has been observed as follows: "Before holding an accused guilty of the offence U/S 306 IPC, the Court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to commit suicide. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable. In order to bring a case within the purview of Section 306 IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC." 21. In Kishuri Lal vs. State of M.P. (2007) 10 SCC 797 , Honble Apex Court gave a clear exposition of Section 107 IPC when it is observed as follows in para 6: "6. Section 107 defines a abetment of a thing. The offence of abetment is a separate and distinct offence provided in the IPC. A person abets the doing of a thing when (i) he instigates any person to do that thing or (ii) engaged with one or more other persons in any controversy for the doing of that thing or (iii) intentionally aids, by act or illegal commission, doing of that thing. These things are essential to complete abetment of a crime. The word instigate literally means to provoke, insite, urge on or doing about by persuasion to do anything. The abetment may be by instigation, conspiracy or intentional aid as provided in three clauses of Section 107. Section 109 provides if the act abetted is committed in consequence of abetment and there is no provision for punishment of such abetment then the offender is to be punished with the punishment provided for original offence. Abetted in Section 109 means the specific offence abetted. Therefore the offence for the abetment of which a person is charged with the abetment is normally linked with proved offence." 22. Abetted in Section 109 means the specific offence abetted. Therefore the offence for the abetment of which a person is charged with the abetment is normally linked with proved offence." 22. The issued that arises for the consideration of the Court is whether any aforesaid clauses of Section 107 IPC is attracted in the facts and circumstances of the present case so as to bring the present case within the purview of Section 306 IPC. In view of the legal propositions discussed above, it we revert back to the factual position of the present case, we found that except mere allegation raised by PW 1 and PW 4 about some demand of money on the part of the appellant there is no any evidence as regards the torture and harassment during the long span of married life. Although, as per the allegation in the FIR the victim was subjected to cruelty since after her marriage but the evidence on record is silent. None of the ingredient of offence of abetment has been proved by the prosecution, that because of such instigation on the part of the accused appellant the victim was compelled to commit suicide. 23. In S.S.Chheena (supra) and in Rajeev Neog (supra) , the proposition laid down in the above mentioned cases has been followed. 24. Another aspect to be noted here that there is delay of 4 days in filing the FIR but the same was not explained in any manner, although the police station was nearer to the house of the informant. Unexplained delay in filing FIR is always fatal to raise doubt about the authenticity of the allegation. As we found that the informant herself has failed to support the content of the FIR in course of her evidence, and, accordingly the exaggeration in the FIR is apparent. In view of such exaggeration in the FIR coupled with the unexplained delay in filing the same has shaked the authenticity of the allegation itself. 25. The prosecution in the present case has failed to narrate the nature of torture meted upon the deceased committed by the appellant. The word torture is itself a vague term. In order to prove cruelty within the meaning of Section 498A IPC the prosecution is required to explain all about the nature of alleged torture in a given case. 25. The prosecution in the present case has failed to narrate the nature of torture meted upon the deceased committed by the appellant. The word torture is itself a vague term. In order to prove cruelty within the meaning of Section 498A IPC the prosecution is required to explain all about the nature of alleged torture in a given case. As has been discussed above prosecution witnesses measurably failed to describe the nature of the alleged torture, place and time etc. to indicate the torture. On the other hand, there is nothing on record to show that the appellant persistently treated the deceased with cruelty in the close proximity of her committing suicide. Accordingly, it cannot be safely concluded that deceased has committed suicide only for the harassment and cruelty meted upon her. It is not the case of prosecution that because of unbearable torture on the part of appellant, the deceased having no alternative decided to finish her life by way of suicide. On the other hand, in view of the inquest report as well as the post mortem report, there was no injury on the person of the deceased so as to reflect any sort of assault and torture upon her prior to her death. That apart, there is no any evidence that during her life time she was required to take medical treatment for such ill treatment and harassment/assault etc. The witnesses simply stated that deceased was assaulted and tortured without indicating nature and extent of injury, if any. 26. Taking into account all above, it can be held that the prosecution has failed to prove the charges U/S 498A/306 IPC by adducing cogent and convincing evidence. Raising of allegation is very easy but difficult to substantiate. Of course, we are confronted with the situation where a married woman having children died/committed suicide, having concern to the society but still we must say that there is dearth of evidence as to the cause of death /suicide by the victim. Many a times cause of death remain under shadows, may be cause of suppression of genesis of the matter by the either side. It became extremely difficult to unearth the actual reason behind such commission of suicide when there is no adequate direct or circumstantial evidence. Many a times cause of death remain under shadows, may be cause of suppression of genesis of the matter by the either side. It became extremely difficult to unearth the actual reason behind such commission of suicide when there is no adequate direct or circumstantial evidence. Under the law, there is no scope of speculation to arrive at a guilt of a person unless the same is proved by appropriate legal evidence, which may be either oral or documentary. In the instant case there is no such proper oral evidence nor the deceased made any dying declaration or left suicide note. That apart, prosecution has not been able to divulge a clear picture of marital relation between the parties, mental faculty of the deceased and other background which may be relevant as to the reasons of unhappiness, unrest on the part of the deceased which led her to finish her life. In view of the evidence on record that there was a cordial relation between the parties, it negated any mensrea on the part of the appellant that he commit the offence. In the given circumstances, the fact that the deceased was hypersensitive to the ordinary petulance, discord cannot be denied. 27. After careful scrutiny of the evidence on record and examining the facts and circumstances of this case, in the light of the settled legal position, the conclusion became obvious that no conviction can legally sustained without credible evidence or material on record against the appellant. In State of West Bengal vs. Orilal Jaiswal, (1994) 1 SCC 73 the Honble Apex Court has cautioned that the Court should be extremely careful in assessing the facts and circumstances in each case and the evidence adduced in trial for the purpose of finding whether cruelty meted out to the victim, had in fact, induced her to end the life by committing suicide. 28. In the present case the findings of the trial Court is erroneous and unsustainable due to lack of proper appreciation of facts and law as indicated above. Consequently, the appeal is allowed. The judgment and order dated 16.11.2011 passed by learned Sessions Judge, Jorhat in Sessions case No.19 (JJ) of 2009 (GR Case No. 907 of 2008) is set aside. The appellant is acquitted from the charge and set him at liberty forthwith. 29. Return the LCRs along with copy of the judgment.