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Samir Mandal & Ors vs State Of West Bengal & Ors on 12 March, 2019

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
6

demand 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

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