Sl. No. 5
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present:
The Hon’ble Justice Joymalya Bagchi
And
The Hon’ble Justice Manojit Mandal
C.R.A. 440 of 2013
with
C.R.R. 2455 of 2013
Samir Mandal Ors.
-Vs-
State of West Bengal Ors.
For the Appellants : Ms. Sreyashee Biswas .. Advocate
For the State : Mr. Neguive Ahmed .. Ld. A.P.P.,
Ms. Trina Mitra .. Advocate
Heard on : 20.02.2019 12.03.2019
Judgment on : 12.03.2019
Joymalya Bagchi, J. :-
Report is filed on behalf of the Investigating Agency wherefrom it appears that
appellant nos.1 5 have expired. The said report be kept with the record.
Hence, the appeal abates so far as appellant no.1 namely, Samir Mandal and
appellant no.5 namely, Nanigopal Mandal are concerned.
The appeal is taken up for hearing with regard to the other appellants namely,
appellant no.2, Sobha Mandal @ Sova Mondal, appellant no.3, Rakhi @ Soma Mandal and
appellant no.4, Samar Mandal.
Prosecution case as alleged against the appellant nos. 2, 3 4 being the mother-in-
law, sister-in-law and brother-in-law respectively of the victim-housewife namely, Purnima
2
Mandal is to the effect that Purnima was given in marriage to appellant no.1 namely, Samir
Mandal (since deceased) five months prior to the incident. On demands from the accused
persons dowry to the tune of Rs.25,000/- in cash, ornaments and furniture were given by
the father of the victim-housewife namely, Sushil Mandal. When Purnima used to come to
her parental home from her matrimonial home, she complained she was subjected to
torture and ill-treatment by the accused persons. On the day of Jamaisasthi, the couple
came to the house of Sushil Mandal, father of Purnima. The latter informed about ill-
treatment to her on that day. On 15th June, 2009 at about 4:00 A.M. the father of Purnima
received information from her matrimonial home that she was ill. He along with others went
to her matrimonial home and found Purnima had committed suicide by hanging. Over this
issue, her father Sushil Mandal (P.W. 1) lodged written complaint resulting in registration of
Bhaktinagar Police Station Case No. 539 of 2009 dated 05.06.2009 under Sections
498A/306 IPC against the accused persons. In conclusion of investigation, charge-sheet
was filed against the accused persons and charges were framed against them with regard
to the aforesaid offences. In the course of trial, prosecution examined 11 witnesses to prove
its case. The defence of the appellants was one of innocence and false implication. In
conclusion of trial, the trial Judge by the judgement and order dated 30th April, 2013
convicted and sentenced the appellant nos.1 4 namely, Samir Mandal Samar Mandal
to suffer rigorous imprisonment for ten years and to pay fine of Rs.5,000/-, in default, to
suffer further rigorous imprisonment for one year more for the offence punishable under
Sections 306/34 IPC and to suffer rigorous imprisonment for three years and to pay fine of
Rs.5,000/-, in default, to suffer further rigorous imprisonment for six months more for the
offence punishable under Section 498A IPC and the other appellants namely, appellant
no.2, Sobha Mandal @ Sova Mondal, appellant no.3, Rakhi @ Soma Mandal and appellant
no., Nanigopal Mandal were directed to suffer simple imprisonment for ten years and to pay
fine of Rs.5,000/- each, in default, to suffer further simple imprisonment for one year more
for the offence punishable under Sections 306/34 IPC and to suffer simple imprisonment for
3
three years and to pay fine of Rs.5,000/- each, in default, to suffer further simple
imprisonment for six months more for the offence punishable under Section 498A IPC and
with a further direction that all the sentences shall run concurrently and 50% of the fine
amount, if realised, shall be paid to Jamuna Mandal (PW3), mother of the victim-housewife.
Hence, the present appeal.
During the pendency of the appeal, appellant no.1 namely, Samir Mandal and
appellant no.5 namely, Nanigopal Mandal being the husband and father-in-law respectively
of the victim-housewife expired. Hence, the appeal survives so far as the other appellants
are concerned.
Ms. Sreyashee Biswas, learned advocate appearing for the surviving appellants
submits that the evidence with regard to torture is extremely vague and non-specific.
Independent witnesses namely, PW1 2 have not supported the allegation of torture upon
the victim-housewife. Neighbours of PW6 claimed that they heard of the torture from the
parents of the victim-housewife which however, is not corroborated by the latter. Hence,
torture on the victim-housewife by the appellant nos.2, 3 4 prior to her death by hanging
has not been proved. Accordingly, she prays that the appellants may be acquitted of the
charges levelled against them.
On the other hand, Mr. Neguive Ahmed, learned Additional Public Prosecutor along
with Ms. Trina Mitra, learned advocate, appearing for the State, argued that the evidence
on record particularly of the parents of the victim-housewife namely, P.W.s 3 6 speak of
physical and mental torture upon her which compelled her to commit suicide within six
months of her marriage. No defence evidence was led to explain the circumstances in
which the victim housewife committed suicide to rebut statutory presumption under Section
113A of the Evidence Act. Hence, the appeal is liable to be dismissed.
P.W. 3, Jamuna Mandal and PW6, Sushil Mandal are the parents of the victim-
housewife. Both deposed at the time of marriage, Rs.25,000/- in cash, one gold ring and
other valuables were gifted to the accused persons. When their daughter came from the
4
matrimonial home, she complained of physical assault by her husband and mental torture
by her in-laws. In the month of Jaistha, the couple came to their house and returned to the
matrimonial home. Fifteen days thereafter the victim committed suicide by hanging from a
jackfruit tree. PW6 lodged the FIR (Exhibit-1).
P.W. 1, Nandita Mallick and PW2, Diptesh Naha are the neighbours at the
matrimonial home of the victim-housewife. Apart from stating that the victim had committed
suicide by handing within 5-6 months of her marriage, they did not disclose anything.
PW4, Sunirmal Sarkar, PW5, Nirmal Mandal PW7, Lakhan Mandal are the
neighbours of PW1.
PW5 stated that he heard from the parents of the deceased that she was not happy
at her matrimonial home.
PW7 claimed that the deceased told her that she did not have good terms with her
husband and in-laws.
PW11, S.I. Lalit Ch. Barman is the Investigating Officer of the case. He went to the
place of occurrence, seized articles and arrested the accused persons. He collected post-
mortem report from the North Bengal Medical College which was exhibited on admission of
the parties (Exhibit-10).
From an analysis of the evidence on record particularly that of some sustenance in
favour of P.W.s 3 6 although we find the allegation of physical assault by the husband on
the victim-housewife, the evidence with regard to torture meted out by the in-laws of the
victim are woefully vague and non-specific. P.W.3 stated that other in-laws subjected the
victim-housewife to mental torture. She did not specify the nature of mental torture meted
out by the in-laws. Similarly, P.W. 6 stated that the mother-in-law and other in-laws tortured
the victim-housewife without specifying the manner in which the said torture was
perpetrated. Even if one accepts the allegation of physical torture by the husband on the
victim-housewife as stated by PW3, the vague, generic and non-specific insinuation of
5
mental torture by the other in-laws i.e. appellant nos.2, 3 4 do not appear to be
convincing.
In view of the fact that the victim-housewife committed suicide within 5 to 6 months
of marriage, Mr. Ahmed has strongly relied on the statutory presumption under Section
113A of the Evidence Act and argued that as the appellants were unable to explain the
cause of death and rebut such presumption, it may be presumed that the victim committed
suicide due to the torture meted out by them.
Section 113A of the Evidence Act reads as follows :-
“S.113A. Presumption as to abetment of suicide by a married
woman.- When the question is whether the commission of suicide
by a woman had been abetted by her husband or any relative of her
husband and it is shown that she had committed suicide within a
period of seven years from the date of her marriage and that her
husband or such relative of her husband had subjected her to
cruelty, the Court may presume, having regard to all the other
circumstances of the case, that such suicide had been abetted by
her husband or by such relative of her husband.
Explanation.- For the purposes of this section, “cruelty’ shall have
the same meaning as in Section 498A of the Indian Penal Code (45
of 1860).”
The aforesaid provision creates a reverse burden upon the accused in the event the
housewife has committed suicide within seven years of marriage and her husband or in-
laws had subjected her to cruelty. Under such circumstances, the court having regard to
the other circumstances of the case may presume the husband or such in-law had abetted
her suicide.
The word ‘cruelty’ in the aforesaid provision would have the same meaning as in
Section 498A of the Indian Penal Code.
‘Cruelty’ in section 498A IPC is defined as follows:-
“S.498-A. …(a) any wilful conduct which is of such a nature as is
likely to drive the woman to commit suicide or to cause grave injury
or danger to life, limb or health (whether mental or physical) of the
woman; or
(b) harassment of the woman where such harassment is with a view
to coercing her or any person related to her to meet any unlawful
6demand for any property or valuable security or is on account of
failure by her or any person related to her to meet such demand.”
Although the victim-housewife committed suicide within six months of marriage, in
order to attract the reverse burden engrafted in section 113A, it is incumbent on the
prosecution to prove that the accused being the husband or in-law of the victim-housewife
had subjected her to ‘cruelty’ which falls within the ambit of Section 498A of the Indian
Penal Code. Laconic statement that the in-laws subjected the victim-housewife to mental
torture without specifying the nature and gravity of such torture and its impact on the victim
as in the present case, in my considered opinion, does not satisfy this pre-requisite, that is,
the in-laws had subjected the housewife to such ‘cruelty’ as would fall within the ambit of
the expression defined in section 498A IPC and shift the onus on them to rebut the
statutory presumption.
We are not concerned with the role of the appellant no.1-husband namely, Samir
Mandal who subjected his wife to physical assault as the said appellant no.1 has expired
and the appeal has abated so far as he is concerned.
However, in the light of the evidence on record so far as the other in-laws namely,
the appellant Nos.2, 3 4 herein are concerned, we are convinced that the prosecution
has not been able to establish that they had subjected the victim-housewife to cruelty which
falls within the definition of the said expression under Section 498A of the Indian Penal
Code so as to shift the onus on them in the facts of the case.
The prosecution having failed to discharge its initial burden, there is no scope to
invoke Section 113A of the Evidence Act against the other in-laws and convict them as
they had failed to rebut such presumption.
In the light of the aforesaid discussion, we set aside the conviction and sentence
recorded against the appellant nos.2, 3 4.
Accordingly, the appeal succeeds in respect of the appellant nos.2, 3 4 herein.
7
The appellant nos.2, 3 4 shall be released from custody forthwith, if not wanted in
any other case, upon execution of a bond to the satisfaction of the trial court which shall
remain in force for a period of six months in terms of Section 437A of the Code of Criminal
Procedure.
As the appellant nos.1 5 have expired, Rule for enhancement of their sentence
stands discharged as infructuous. In view of the order of acquittal in respect of the appellant
nos.2, 3 4, rule for enhancement of their sentence stands discharged.
The lower court records along with a copy of this judgment be sent down at once to
the learned trial court for necessary action.
Photostat certified copy of this order, if applied for, be given to the parties on priority
basis on compliance of all formalities.
I agree.
(Manojit Mandal, J.) (Joymalya Bagchi, J.)
akd/asPA
