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Anil Alias Radha Krishna Bera-vs-State Of West Bengal on 16 February, 2006

Calcutta High Court Anil Alias Radha Krishna Bera-vs-State Of West Bengal on 16 February, 2006
Equivalent citations:(2006) 2 CALLT 210 HC, 2006 (3) CHN 801, II (2006) DMC 347
Author: A K Bhattacharya
Bench: A K Bhattacharya

JUDGMENT

Arun Kumar Bhattacharya, J.

1. The present appeal is directed against the Judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Contai in Sessions Trial Case No. VIII of November, 1990 on 13.08.91.

2. Shortly put, the prosecution case is that the defacto complainant’s second sister Jharna Rani Bera, aged about 22 years, was given in marriage with accused Anil and Radha Krishna Bera about five years back according to Hindu rites and customs, and in that wedlock a male child, now aged about l1/2 years, was born. After a few months of marriage, she was subjected to torture by way of quarrel and assault by her husband Anil and parents-in-law viz. Sudhir Chandra Bera and Nihar Bala Bera over the issue of family affairs. On 03.07.89 at about 12.00 hrs. on receipt of information from Hare Krishna Bera, younger brother of accused Anil regarding illness of the said sister, the complainant rushed to the in-laws’ house of her sister and found her sister lying dead. He came to learn that over the issue of said child there was a quarrel between the couple, and her husband had assaulted her, and thus being unable to bear the, torture she ended her life in the morning by setting fire on her person after pouring kerosene oil thereon. Hence, all the three accused persons were charged under Sections 498A/306 IPC.

3. The defence case, as suggested to P.Ws., as contended by the accused persons during their examination under Section 313 Cr. PC and as stated by D.Ws.. is that as the victim Jharna was of loose character, out of shame and to get rid of the allegation by the accused persons she committed suicide.

4. Thirteen witnesses were examined on behalf of the prosecution, while four witnesses were examined on behalf of the defence, and after considering the facts, circumstances and materials on record the learned Court below found the present appellant Anil guilty under Sections 498A/306 IPC, and other two accused persons guilty under Section 498A IPC, convicted them thereunder and sentenced the present appellant to suffer R.I. for six years and to pay fine of Rs. 1000/- i.d. to R.I. for two months under Section 498A IPC and to suffer R.I. for six years and to pay fine of Rs. 1000/- i.d. for two months under Section 306 IPC, and other two accused persons to suffer S.I. for two months and to pay fine of Rs. 500/- i.d. to S.I. for fifteen days under Section 498A IPC.

5. Being aggrieved by and dissatisfied with the said order of conviction and sentence, accused Anil has preferred the present appeal.

6. All that now requires to be considered is whether the learned Court below was justified in passing the above order of conviction and sentence.

7. Two ingredients in respect of an offence under Section 498A IPC are: (1) the married woman was subjected to cruelty or harassment, and (2) such cruelty or harrassment must have been shown either by husband or relatives of her husband, while in case of offence under Section 306 IPC all that is required to be proved is commission of suicide by a person due to abetment.

8. “Cruelty” within the Explanation to the said Section 498A means any wilful conduct which is of such a nature as is likely to drive a woman to commit suicide, or such wilful conduct which is likely to cause grave injury or danger to life, limb or health whether mental or physical of the woman, or harassment to the woman where such harassment is with a view to coercing her for any property or valuable security. Section 113A of the Evidence Act creates a presumption of abetment of suicide by a married woman on existence of the conditions that the suicide has been committed within seven years of marriage and the husband or relatives of the husband had subjected her to cruelty. Ordinarily, offence against a married woman is committed within the four corners of a house and normally direct evidence regarding cruelty or harassment on the woman by her husband or relatives of the husband is not available, and so while deciding as to whether the woman was harassed or ill-treated by her husband, or his relatives, various factors and some circumstances can be considered by the Court, e.g. dying declaration of the woman, if any, extra judicial confession by the accused, motive, place, time, demand, if any, physical and mental cruelty shown towards wife, conduct of the husband as also of relatives of the husband etc.

9. The facts undisputed in the present case, as are evinced from the evidence on record, are as follows: The victim Jharna was the legally married wife of accused Anil @ Radha Krishna Bera, their marriage having taken place on or about 24th Magh, 1392 B.S, In that wedlock a male child was born who was aged about l1/2 years at the time of incident. There were eighteen members in the family of accused Anil. The victim committed suicide after pouring kerosene oil on her person and setting fire thereon in the house of the accused Anil on or about 18th Ashar, 1396 B.S. i.e. within 31/2 years of her marriage, and the said male child died after about 4/5 months thereafter.

10. The vital witnesses in this case are P.W.s. 1, 4 to 7, 12 and 13.

11. P.W. 2 Himangshu Mishra scribed the FIR (Ext. 1/1) according to the instructions of the defacto complainant Tukaram Bera (P.W. 1). P.W, 3 Gour Hari Samanta, a quack, who was declared hostile, on being called by the youngest son of accused Sudhir had been to the house of the accused persons at about 9/9.15 a.m. on 18th Ashar, 1396 B.S. found the victim wholly burnt, specially on upper part of her body, administered two injections and advised for her removal to hospital. At about 11.30/12.00 hrs. he came to learn about the death of the said patient. On his query the victim who was in a position to speak, told that being unable to bear slur on her moral character hurled by the accused persons and to ger rid of it she tried to commit suicide. P.W. 8 Bijoy Kumar Panda and P.W. 9 Bhanu Manna acted as priest and barber respectively during the marriage of the victim. P.W. 10 S.I. B.K. Bagchi on receipt of the complaint lodged by P.W. 1 started Khejuri P.S. Case No. 59/89 dated 03.07.89 under Sections 498A/306 IPC at about 22.15 hrs. and endorsed the case for investigation to S.I. P.K. Nandy (P.W. 12). P.W. 11 constable Basudev Sen accompanied S.I. P.K. Nandy (P.W. 12) to the P.O., carried the dead body of the victim in a rickshaw van to S.D. Hospital, Contai and identified the said-dead body to the autopsy surgeon (P.W. 13).

12. According to the evidence of P.W. 1, his sister’s mother-in-law Nihar Bala Bera used to give to his sister rice, vegetables, spices etc. from store cooking daily for cooking and almost on all the days his sister could not have her meal because of shortage of cooking materials. After about 6/7 months of the marriage, the accused persons used to quarrel with her and accused Anil used to assault her even, for which there was unhappiness in her life. On 2/3 occasions he himself had seen accused Anil to assault his sister Jharna, but he could not protest as she was ultimately to live there with her husband and in-laws nor he disclosed about such torture to others as she would have to reconcile her distress. On 18th Ashar, 1396 B.S. at about 12.00 hrs. on receipt of an information from the younger brother of accused Anil who came to their house accompanied by a boy that Jharna was seriously ill due to diarrhoea and she wanted to see him, he immediately rushed there and found Jharna lying dead on the verandah of her room with burn almost all over her body. On his way to that house a female of the locality reported him about commission of suicide by Jharna by setting fire on her person after pouring kerosene oil. On his query, accused Sudhir, father-in-law of Jharna, reported that for the last 2/3 days no meal was prepared in the house for which there was extreme loss of peace in the family and pursuant to such disturbance accused Anil assaulted her followed by her commission of suicide after pouring kerosene oil on her body and setting fire thereto. In course of all these local people assembled there and when they saw him to argue with Sudhir, some of them directed to rope him, and out of fear he fled away and reported the matter to O.C., Henria I.C. by filing an FIR which was scribed by a shopkeeper Himangshu Mishra (P.W. 2), On his way to Henria I.C. he met Pratap Bera (P.W. 7), through whom he sent information about death of Jharna to his house. After lodging FIR he accompanied the police officer (P.W. 12) to the house of the accused in a motor van. Reaching there at about 1.00 a.m. the police officer held inquest over the dead body of Jharna, seized certain wearing apparels (burnt), a half burnt kantha and a bottle containing little kerosene oil [Mat Ext. I (coll.)] under a seizure list in presence of him and others. After the death of male child after about 4/5 months, accused Anil married again. The police officer took the dead body of Jharna to Henria I.C. He further stated that during visit of Jharna to their house on some occasions she reported about torture and assault on her by her husband and that during such torture her husband used to ask her to die so that he can marry again. The above evidence in material particulars is corroborated by P.Ws 4 to 7 and medical testimony of P.W. 13. P.W. 4 Bhabesh Bera, uncle of the victim, stated that after 5/6 months of the marriage the trouble started. She was even not given sufficient meals. Occasionally she was also subjected to assault by her husband. During her visit to her father’s house 4/6 times whenever she visited his house, on his query as to how she was, she reported that she was not given adequate meals, that her husband used to assault her and that parents-in-law abused and rebuked her. On 18th Ashar 2/3 years back in the midnoon time Anil’s brother came to their house and reported about serious illness of Jharna, and on hearing such information Tukuram (P.W. 1) rushed there but he did not return on that date. In the meantime Pratap Bera (P.W. 7) of their village informed them that Jharna had died. Hearing this he along with his brother Haripada (P.W. 5) Biren Bera (P.W. 6) and Pratap Bera (P.W. 7) went to the house of the accused at about 7.00 p.m. and found Jharna lying dead on the open verandah in front of her room with severe burn injuries all over her body. On their query, parents-in-law reported that she committed suicide by pouring kerosene oil over her body and setting fire thereto and that following a quarrel accused Anil assaulted her on 17th Ashar for which she committed suicide. He did not find accused Anil there. At about 1 a.m. Tukaram (P.W. 1) came back with police. Similar is the evidence of P.W.5 Haripada Bera (father), neighbourers P.W. 6 Biren Chandra Bera and P.W. 7 Pratap Chandra Bera. It is further evidence of P.W. 6 that on his query to the accused persons as to the cause of death of Jharna the lady accused called him and taking him into confidence reported that on the previous night there was delay in preparation of meals by Jharna for which her father-in-law rebuked her and her husband Anil beat her severaly which resulted in committing suicide by her by setting fire after pouring kerosene oil on her person. P.W. 13 Dr. T.K. Panigrahi, S.D.M.O.-cum-Superintendent, Cental sub-divisional Hospital, on holding P.M. examination over the dead body of the victim on 04.07.89 found Tiger mortis present, hairs burnt including the scalp, membrane congested, 90% burn on whole of the body, heart full of blood, stomach contained 500 ml. semi solid particles with acidic smell, liver congested, urinary bladder empty, uterus empty, direction of the flame is down to upward, and opined that the death was due to shock from extensive burns, ante mortem and suicidal in nature. P.W. 12 S.I. P.K. Nandy on receipt of the complaint lodged by Tukaram (P.W. 1) at Henria I.C., diarised the same in the G.D. bearing No. 70 dated 03.07.89 (Ext. 5), contacted over RT message O.C.. Khejuri P.S. who endorsed the case to him for investigation, and he sent the written complaint to O.C., Khejuri P.S. by homeguard Nirmal Patra. He started for the P.O. with force along with P.W. 1 at about 8.40 p.m. traversing a distance of 15/ 16 kms. sometimes on foot and sometimes on rickshaw van and reached at the P.O. at the midnight. He found a dead body of a female lying in the verandah in front of a room, held inquest (Ext. 2/3) on the said dead body, seized one half burnt kantha, a piece of half burnt yellow bordered sari from the dead body of the victim, a piece of white cloth, another piece of rose coloured sari with which the dead body of Jharna was covered and a bottle with little quantity of kerosene oil found in the verandah-cum-kitchen in front of the dwelling room of accused Sudhir, under a seizure list (Ext. 3/2), drew up a sketch map of the P.O. (Ext. 6), examined witnesses, sent the dead body to Contai S.D. Hospital for P.M. examination through P.W. 11 and later collected the P.M. Report. After completion of investigation he submitted charge sheet against three accused persons under Sections 498A/306 IPC. This is the overall evidence on the part of the prosecution.

13. Mr. Dutta Gupta, learned Counsel for the appellant, contended that the learned Court below did not consider the evidence of D.Ws. and had it been done it would have been a Judgment of acquittal. Such contention, I regret, is not at all correct since the learned Court below, as it appears, duly considered the evidence of all the D.Ws. and elaborately discussed on it.

14. Nevertheless, the evidence of D.Ws. may now be considered.

15. As per evidence of D.W.I Basanta Kumar Samanta, a member of Anchal Panchayat, on 17th Ashar 1396 B.S. at about 7.30/8.00 p.m. at the time of his return with Susanta Maity (D.W. 2) they found at a distance of about one bigha someone gossiping sitting under a banyan tree in the darkness. At the torch light focussed by Susanta they found Gourhari Girl of Tikasi and Jharna sitting there and gossiping. He scolded Gourhari, even slapped him, took them to the house of the accused persons and narrated the incident to them when Jharna’s father-in-law Sudhir told that he gave warnings to Jharna for her moral lapses but to no effect. In the meantime Gourhari fled away. It is his further evidence that on 18th Ashar at about 5 a.m. on being informed by Balaram, eldest son of accused Sudhir about commission of suicide by Jharna by setting fire on her person, he went there at about 8/8.30 a.m. and found Dr. Gour Hari Samanta (P.W. 3) attending the victim who informed the doctor that being unable to bear the chastisement and out of shame she attempted to finish her and the doctor need not try to save her. He further stated that police came at about 10,00 p.m. and he left for his home at about 11.00 p.m. which is belied by the testimony of P.Ws. 1, 4 to 7 and 12 whose specific evidence is that the police being accompanied by P.W. 1 arrived at the P.O. at midnight. The above evidence is contradicted by D.W. 2 Susanta Maity, Secretary of Krishak Samity of the village, who stated that at the torch light focussed by him he found a boy who disclosed his name as Gourhari of Tikasi and Anil’s wife holding each other. They apprehended both of them, Basanta (D.W. 1) dealt Gourhari 3/4 blows on his back and took them to the house of the accused persons. When they narrated the incident to the inmates of the house all the three accused persons scolded Jrarna and that accused Sudhir informed them that the character of Jharna was not good and on many occasions he cautioned her to amend herself but to no effect which does not find place in the testimony of D.W. 1. He stated that two doctors viz. Anil, since deceased, and Gour Hari came to treat Jharna and on query by Dr. Gour Hari, Jharna reported that she does not want to live any more to nurse her scandalous life and the doctor should not make attempt to save her. It is his further evidence that when Jharna set fire on her person, on hearing the hue and cry raised by the inmates of the house he went there at about 12.30 p.m. on 18th Ashar, 1396 B.S. and stayed there for about ten minutes which totally belies the story of his alleged presence at the time of examination of the victim by P.W. 3 at about 9/9.15 a.m. since the evidence of P.W. 3 is that after examining the victim he left the house of the accused persons on advising for her removal to hospital and at about 11.30/12,00 hrs. he came to learn about the death of the victim. Similarly, the story of his going to the house of the accused persons on the night of the previous date i.e. 17th Ashar at about 11.00 p.m. with Gourhari and Jharna being totally inconsistent with the evidence of D.W. 1 is falsified. It is admitted by him that Dr. Gour Hari Samanta (P.W. 3) is a supporter of a political party and there is a political fraternity between him and Dr. Gour Hari Samanta and that the accused persons being supporters of a political party obliged them in various ways. So, he being a parrot-like witness is not at all worthy of belief. D.W. 3 Sisir Das on hearing about the scandalous affair of Gourharf and Jharna at about 7.30/8.00 p.m. on 17th Ashar, 1396 B.S. met accused Sudhir on that very night and asked him to see that Jharna mends her ways. If D.Ws. 1 & 2 found the alleged incident of gossiping of Gourhari and Jharna at about 7.30/8.00 p.m, followed by their going to the house of the accused persons with Gourhari and Jharna and narrating the incident to the inmates of the house, there was no scope on the part of D.Ws . 1 & 2 to inform about it to D.W.3. That apart, there is no such evidence on the part of D.Ws. 1 & 2 that they informed as above to D.W. 3 and accordingly the above evidence being hearsay cannot be taken into account. Furthermore, it is his specific evidence that the accused persons like him are also supporters of a political party and about 2-0/ 22 days back the accused persons called him at their house and asked him to depose in their favour and they also paid him the travelling expenses which leads to show that he is a partisan witness. D.W. 4 Niranjan Das similarly stated that at about 7.30 p.m. on 17th Ashar 1396 B.S. on hearing from D.Ws. 1 & 2 about scandalous incident of Gourhari Giri and Jharna he went to the house of the accused persons and asked accused Sudhir to check Anil’s wife so that she does not indulge in such scandalous affairs which is also belied in view of the discusssion made above. He further stated that on the following morning at about 8.00 a.m. on hearing about the incident of setting fire by Jharna on her person he had been there found Dr. Gour Hari Samanta, D.W. 1 and other villgers but he did not hear Jharna to state anything to doctor which falsifies the above evidence of D.Ws. 1 & 2 and also P.W. 3. So far as the above evidence of P.W. 3 that on his query the victim, who was in a position to speak, said that being unable to bear the slur on her moral character hurled by the accused persons and to get rid of it she tried to commit suicide, there is no such earlier statement under Section 161 Cr. PC on his behalf, as is evident from the evidence of P.W. 12 (I.O,), and so it being a contradiction due to omission on vital point may be excluded from consideration. Accordingly, in view of the above contradictory nature of evidence no reliance can be placed upon the testimony of D.Ws. 1 to 4 as also P.W. 3.

16. To a suggestion put to P.W. 1 that Gourhari and local boys indulged in loose talks with Jharna prior to her marriage, he categorically denied it. P.W. 4 does not know any person Gourhari, son of Bhaku Giri of their village and he also categorically denied the suggestion that such Gour Hari had a love affair with Jharna. It is his specific evidence that he never heard that Jharna was of loose character.

17. P.W. 5 in one place of his evidence stated that in the first week of Ashar of the fateful year he went to the house of in-law’s of Jharna on the occasion of ‘Ambubachi’ with milk and mango but the accused persons refused to accept the same, and on his query Jharna reported that her in-laws were suspecting her moral character for which they refused to accept the said milk and mango. This very piece of evidence leads no suggest that without any rhymes and reason they started suspecting moral character of the victim even before eleven days of the date of incident. It is his further evidence that some villagers of the accused persons pressurized him for effecting compromise and as he did not agree those villagers asked him to do whatever they can but they would not dispose in their favour. That is possibly the reason that not a single witness of the locality including P.W. 3 has come forward to depose in favour of the prosecution.

18. The statement under Section 313 Cr. PC though not strictly evidence in the case may be taken into consideration in judging the guilt or innocence of the accused. In the present case, had there been any such incident as alleged by D.Ws. or there was any doubt regarding chastity of the victim, parents-in-law would have disclosed about it during their examination under Section 313 Cr. PC, but there is no such statement on their behalf. Accused Anil during his examination under Section 313 Cr. PC stated that Jharna was morally corrupt and that he, his parents and people of the locality used to say chat she was of bad character, for which mango and milk brought by his father-in-law was not accepted by him. But accused Sudhir during his examination under Section 313 Cr. PC specifically stated that he did not say anything on any day about her character which contradicts the above evidence of D.Ws.

19. So, considering all the above aspects I may examine the defence story which sounds oblique and improbable and collapses like a pricked balloon on an insightful judicial probe.

20. On the other hand, that the victim was subjected to assault by accused Anil, as deposed by P.Ws. 1. 4 to 7, there is no denial of it in their cross-examination. False imputation of bad character to wife by husband is itself cruelty. The evidence on record has established a direct nexus between cruelty and suicide.

21. Furthermore, the falsity of defence case undoubtedly cannot establish the prosecution case but it may be taken into consideration in deciding if the charge has been brought home against the accused and when other circumstances point unfailingly to the guilt of the accused it can be considered as an additional link in the chain of circumstantial evidence to make it complete, as a false plea put forward by the accused rebounce on him and the prosecution case get strengthened. In this connection, reference may be made to the cases of Mohan Lal v. State of U.P. and Shankarlal

v. State of Maharashtra .

22. Moreover, mere abscondance or disappearance of the accused by itself cannot form the basis of conviction. Even innocent person may when suspected on grave crime be tempted to evade arrest, such being the instinct of self-preservation. When a finger of false accusation is raised, an innocent person may behave like a guilty one to avoid a false charge or harassment. But when there are other evidence to connect the accused with the abscondance itself is a useful piece of corroborative evidence and may lend weight to other evidence. In this connection, the case of Raghau Propound v. State of U.P. may be referred to. Here, it is the definite evidence of P.W. 6 that as soon as the police arrived, the male accused persons fled away and only the lady accused was present which is buttressed by the testimony of P.W. 7 and also P.W. 12 who could arrest the female accused Nihar Bala and deposed that the persons who were holding talks of compromise informed that the members of the family fled away on seeing the police, and the male accused persons surrendered before the Court on 04.07.89. So, the said fact of abscondance of the present appellant immediately after the occurrence is an important link in the chain of circumstantial evidence to connect him with the commission of offence.

23. In the premises, in the light of the above discussion, the learned Court below correctly found the present appellant guilty and there being no material to interfere with the said decision, the appeal be dismissed. The impugned order of conviction and sentence is hereby affirmed.

Let a copy of this Judgment along with the L.C.R. be sent down at once to the learned Court below.

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