SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Samiranbasak vs The State Of West Bengal on 2 July, 2019

IN THE HIGH COURT AT CALCUTTA

Criminal Appellate Jurisdiction

APPELLATE SIDE

Before:-

THE HON’BLE JUSTICE RAJASEKHAR MANTHA

C.R.A. 251 of 2008

SamiranBasak

VERSUS

THE STATE OF WEST BENGAL

For the Appellant : Mr. SoumickPramanick, Adv.

For the State : Mr. Bidyut Kr. Roy, Adv.
Ms. Rita Datta, Adv.
Hearing concluded on : 25.06.2019

Judgment on : 02.07.2019

RajasekharMantha, J.:-

1.

The instant appeal is directed against the Judgment dated 24th March,

2008 and order of conviction dated 25th March, 2008 passed by the

Additional District Sessions Judge, Ranaghat, Nadia, in Sessions

Trial No. 3 (III) of 2005 arising out of Sessions Case No. 54 (9) of 2004.
2

The appellants have been convicted under Section 498A and Section306 of

the IPC. The appellant No. 1 SamiranBasak was convicted to suffer

rigorous imprisonment for 2 years under Section 498A of the IPC and

pay a fine in default to suffer simple imprisonment for 2 months. The

said appellant No. 1 has also been convicted to suffer 4 years rigorous

imprisonment under Section 306 of the IPC and to pay fine of

Rs.2000/- in default suffer simple imprisonment for 2 months. The

appellant No. 2 was sentenced to suffer rigorous imprisonment for 1

year under Section 498A of the IPC and to pay a fine of Rs.1000/- in

default to suffer simple imprisonment for 2 months. The appellant

No. 2 was also convicted to suffer rigorous imprisonment for 3 years fo

under Section 306 of the IPC and to pay fine of Rs.2000/- in default to

suffer simple imprisonment for 2 months.

2. The prosecution case in brief is that the victim Archana Basak was

married to the appellant No. 1 SamiranBasak about 8 years prior to

her death. The appellant No. 1 was paid dowry by the father of the

victim,Sahadeb Basak (PW1) comprisngin, Rs.20,000/- in cash, 3

grams worth of ornaments, a cot, dressing table, almirah etc. The

amount is stated to have been paid voluntarily. The couplewas

childless. There was marital discord and a demand for more dowry

and money from the appellants. The victim is stated to have been

tortured physically and mentally for inability on the part of her

parents to pay the dowry demanded. A meeting of the elders of the

village, locally known as ‘Salish’ was stated to have been held 2-3
3

times where the father of the victim is stated to have told that he was

unable to meet the demand for dowry. On the 5th September, 2002 at

about 7.00 pm the victim is stated to have poured kerosene on herself

and burnt herself to death.

3. Immediately after being informed of the incident by three persons, the

parents of the victim and their son rushed to the matrimonial house of

the victim and found her lying in the courtyard, burnt. They took her

to theRanaghat Sub-divisional Hospital where she was declared dead.

4. The inquest was conducted by ASI Sankar Mukherjee (PW-8) and

SastiCharan Ghosh, Executive Magistrate, who found the entire body

burnt except forparts of the scalp and the feet. The inquest was

attended by ArabindaPramanik (PW 9), SahadebBasak (PW1) and two

other persons. The Executive Magistrate who conducted the inquestin

the said hospital morgue, submitted a report under Section 176 of the

Cr.P.C. He recorded the statements of the witnesses that, it was a

case of bride burning.The suspicious circumstance recorded was that

the family members of the deceased were not present at the time of

inquest. A Post Mortemwas subsequently conducted by Dr P Banerjee

(PW11). The column for cause of death was left with the following

remark ‘Opinion deferred until receipt of the FSL report’. The viscera

was sent for Forensic Analysis to Kolkata. The FSL report was not

received.

5. Charges were framed against the accused under Section 498A and

Section306 of the Indian Penal Code against the Appellant No.1 Husband and
4

Appellant No.2 Father-in-Law.The prosecution examined as many as

12 witnesses.

PW 1- SahadebBasak, father of the deceased.

PW 2- Amiya Basak, maternal uncle of PW1 and co-villager
(declared hostile).

PW 3- PremanandaBasak, neighbour (declared hostile).
PW 4- Jharna Rani Basak, mother of the victim.

PW 5- Paresh Ch. Bhowmick, priest who performed the
marriage ceremony between appellant No.1 and the victim.
PW 6- Suresh Sarkar, Barber who participated in the
marriage ceremony of the victim and the appellant No. 1.
PW 7- Krishna Roy, neighbour well acquainted with the
families of the Victim and the Appellants (declared hostile)
PW 8- ASI Sankar Mukherjee.

PW-9 ArabindaPramanik, resident of the village, well
acquainted with the appellants and the family of the victim
and scribe of the complaint (declared hostile).
PW 10- SI JyotirmoyBasakInvestigatin Officer
PW 11- Dr. P. Banerjee, Medical Officer (ENT Surgeon) who
conducted post-mortem submitted report.

PW 12- S.D.O. ShastiCharan Ghosh who also conducted
the inquest.

Evidence of PW 1

6. SahadebBasak, the father of the deceased and de facto complainant

stated that his daughter was married 7-8 years ago. He identified the

appellants and deposed that relations between his daughter and the

appellant No. 1 were not good. He stated that the appellant assaulted

his daughter for failure to bring money demanded. His daughter

used to come home alone regularly and inform himof the demand for

more money and torture for failure on his part to pay money to

appellants. He further stated that his wife was also informed of the

tortureand demand of money,by the victim herself.

7. In a ‘Salish’ held in the village regarding such demand, Sahadeb

informed the village elders that he was unable to pay money to the
5

appellants and further torture is stated to have been inflicted on the

victim thereafter. Krishna Roy (PW-7), neighbour and Amiya Basak

(PW2) maternal uncle of Sahadeb (PW1) are stated to have been

present in the Salish. He deposed that the Appellant No.1 used to tell

the victim “can’t you consume poison and die!, can’t you die of

burning!, can’t you tie a rope and hang yourself!”. Salish is stated to

have been held about 45 days prior to the death of the victim.

8. He could not recollect the exact date of death. He was informed of the

victim lying in a burnt condition in the courtyard of her matrimonial

house at or about 6.30-7.00 pm by local residents. He rushed to the

house of the appellant alongwith his wife and son but could not find

the appellants thereat. He found his daughter Archana lying on the

courtyard in a burnt condition and took her to Ranaghat hospital

where she expired.

9. On the next day of the incident he said that he went to the Santipur

Police Station alongwith PW 9 ArabindaPramanik and lodged the

complaint. The complaint was dictated to PW9 by himand signed by

him. The complaint was identified by him. He thereafter went to

Ranaghat hospital when the inquest was performed in the presence of

his elder brother MahadebBasak and PW 9. He signed on the original

inquest report.Subsequently, on 6th of September, 2002 when the

Magistrate performed inquest, he told the Magistrate that his

daughter committed suicide for torture inflicted on her and for failure

to meet the demand of money.

6

10. In cross-examination, he said that he has no enmity in the locality.All

household work, nursing of the appellant No. 2, at the matrimonial

house was done by his daughter. There was no other female member

in the matrimonial house. The appellant and the victim visited the

paternal house on Jamaisasti (festive occasion to honour the son-in-

law) and “Dwiragaman”. Such visits were normal and there was no

acrimony during that time. He could not recollect the date, month or

year when the victim told him about the torture inflicted upon her. He

admitted that he did not inform the police or the local panchayat

about the torture on his daughter except one neighbour namely

NarottamBasak. His statement was recorded at Ranaghat Hospital.

He admitted that the amount demanded and his inability to pay the

same was not recorded in the complaint.

11. He stated that his statement was recorded by the police during

investigation and that PW 2, 3, 7 and 9 were examined by the police in

course of the investigation.

Evidence of PW 2

12. Amiya Basak is the uncle of PW 1. He deposed that he had not heard

of any unhappy incident in the marriage of the victim and the

appellant No. 1. He was declared “Hostile”. He denied having said that

there was any discord in the marriage of the victim and the appellant

No.1 or that the appellants burnt the victim. He admitted that he

used to visit the house of the appellants. He was not questioned as to
7

what happened at the Salish. No Statement under 161 was

confronted to the witness.

Evidence of PW 3

13. PW 3 is PremanandaBasak, a neighbour of the appellant. Hewas also

declared ‘Hostile’. He did not “see”any unhappy incident in the

marital life of the victim. He accompanied PW 1 and other local

persons and took the victim to a hospital in a Maruti car. He denied

having been interrogated by the police and also denied having said

anything against the appellants to the police about any discord in the

marriage between the victim and the appellant. He was not questioned

as to what transpired at the salish.No Statement under 161 was

confronted to the witness.

Evidence of PW 4

14. PW 4 is Jharna Rani Basak, mother of the victim and wife of PW 1.

She submitted that after marriage the appellants tortured Archana

and demanded Rs.15,000/- from her. She said that her daughter

informed her that the appellants said, “if you do not bring money you

may have to die consuming poison”. She also stated that the victim

was assaulted since she could not send money to the appellants. Two

‘Salishs” each were held at the house of the appellants and her house.

The victim was stated to have been tortured even after the ‘Salishis’.

She stated that the victim told her that unless she and her husband

PW1, give money to the appellants as per the demand, her daughter

will have to commit suicide.

8

15. She deposed that the incident occurred 8 years after marriage. She

confirmed having found the victim as deposed by the PW 1 and taking

her to the hospital along with her husband and son and other

persons.She said that she and her husband and son were informed of

the incident by PintuBasak, Suren Basak and SukumarBasak. In

cross-examination, she admitted that the appellant No.1 came to the

house of her in Dwiragaman and not on Jamaisasti. She admitted

that the victim was childless and that she often went to visit her

daughter in the matrimonial house. She informed the incident of

torture and demand for money was informed only to a panchayat

member PW 9 but could not recollect the date. She clearly admitted

that the victim Archana, and herself were extremely unhappy and

depressed that they were childless. She said that she narrated the

incident to the police during investigation while she was mentally

upset.

Evidence of PW 5

16. PW 5 is the priest who performed the marriage ceremony of the victim

and the appellant No.1.

Evidence of PW 6

17. PW 6 is the barber who participated in the marriage ceremony

between the victim and the appellant.

Evidence of PW 7
9

18. PW 7 is Krishna Roy, neighbour of PW 1SahadebBasak, anda resident

of the locality. She was declared ‘Hostile’. She claims to know

SahadebBasak, as well as the victim Archana Basak. She came to

know of the death of Archana on the night of the incident. She said

that Archana and her husband had visited her parent’s house

regularly. She deniedhaving been interrogated by the police. She

denied having told the police that Archana suffered in her maternal

house after marriage. Krishna Roy was not interrogated about what

transpired, if at all at the Salishis. No statement under Section 161 of

Cr.P.C. was confronted to the wtiness.

Evidence of PW 8

19. PW 8 wasSankar Kumar Mukherjee ASI of Police who performed

inquest on the dead body of the victim. He deposed that at the time of

inquest,ArbindPramanik, PW 9 MahadebBasak, NityanandaSikdar

and SabadebBasakPW1 were present. He identified a carbon copy of

the inquest report that was exhibited.

Evidence of PW 9

20. PW 9 wasArbindPramanik. He was declared Hostile. He was a

member of Panchayat Samity of the locality. He knew the victim. He

deposed that he was present when PWI lodged the complaint and had

written the same as per the dictation and instructions of

SahadebBasak PW 1. He stated that he was present during inquest

and identified his signature as witness on the inquest report. He

denied any knowledge of anymarital discord between the victim and
10

her husband and her father-in-law. He also denied that the police

interrogated him. He denied having said that the victim died after

burning herself and he further denied that there was any unhappy

incident between victim and the accused persons. He was not

questioned about the salish. No statement under Section 161 of

Cr.P.C. was confronted to him.

Evidence of PW 10

21. PW 10 is Sub InspectorJyotirmoyBasak, the Investigating Officer. He

did not find any sketch map with index of place, in the case diary. He

claims to have examined and interrogated PW 2 whereas PW 2 had

denied any interrogation by the police. He deposed that PW 2 told him

in interrogation that the appellants used to abuse the victim for not

being able to bring money from her father’s house.He also deposed

that PW 9 in course of interrogation stated that the victim was

tortured after her marriage and that the accused demanded

Rs.15,000/- as dowry. Strangely, PW 9 in his examination denied

having said anything of that nature. He also stated that PW 3

PremanandaBasak told him during investigation that the appellants

demanded Rs.15,000/- as dowry from the father of the victim and

tortured her since he could not arrange the said sum of money. PW 3

denied having said anything in that regard to the police, in his

evidence. He also deposed that Krishna Roy PW 7 told him in

interrogation that Archana was tortured for not arranging Rs.15,000/-

as dowry and committed suicide by setting herself for fire. The said
11

Krishna Roy deniedhaving said anything of that nature to the police,

in her evidence. He admits that hedid not go toRanaghat Sub-

Divisional Hospital. He also admits that he did not examine any

Panchayat members.

Evidence of PW 11

22. PW 11 isDr. P Banerjee, a Medical Officer (ENT Surgeon). He admitted

that he performed the post mortem on the victim and found second

degree burns all over the body except a small portion of scalp and the

feet and sent the viscera for chemical analysis to the laboratory at

Kolkata. A carbon copy of the PM report was shown to him and

wasexhibited,he denied having handed over the carbon copy of the

post mortem report to the police. He could not say where the original

post mortem report was. He also could not say that any FSL report

was received by him.

Evidence of PW 12

23. PW 12 isSasthiCharan Ghosh, S.D.O., Barasat. He deposed that he

performed the inquest on the dead body of Archana Basak.The body

was identified by the father of the deceased.The Inquest was done in

the presence of the father PW 1 and PW 9. He deposed that he has

recorded that it is a case of bride burning on account of demand of

dowry as per the versions of PW1.

24. The Appellants were examined under Section 313 of the Cr.P.C. The

judgment was delivered on 24th March, 2008 convicting the appellants

and they were subsequently sentenced.

12

25. This court has carefully gone through the evidence on record and

finds serious discrepancies in the prosecution’s case. The only

evidence to support the prosecution case is that of PW 1 the father of

the victim SahadebBasak and PW 4,Jharna Rani Basak mother of the

victim. Admittedly the persons who informed PW1 and PW4of the

incident i.e., PintuBasak, SukumarBasak and Suren Basakwere

neither cited as witnesses nor deposed in the trial. PW4 deposed that

Archana was depressed because she was childless. The victim and

her husband visited the paternal house on Dwiragaman. The post

mortem report is inconclusive. The FSL report was never seen the

light of the day.

26. PW 2, AmiyaBasak the uncle of PW 1, PW 3 PremanandaBasak

neighbour, PW 7 Krishna Roy and PW 9 ArbindPramanikwho were

stated to be present in the Salish and on the basis of whose

statements in interrogation, the Investigating Officer submitted

charge-sheet, have all denied having stated anything against the

appellants to the police. No Statement under 161 was either recorded

or confronted to the said witnesses. They were not questioned as

regards their presence in the Salish. Each of them were declared

hostile by the prosecution.The only evidence available to prove the

prosecution case was that of PW 1 and PW 4. The evidence of the PW

1 and PW 4 is not conclusive to establish torture, cruelty or abetment

to commit suicide against the appellants.

13

27. In this regard it is useful to refer the the decision of the Honble

Supreme Court in the case of Sharad BirdhichandSarda Vs State of

Maharashtra reported in (1984)4 SCC 116. At Paragraph 48 it was

held as follows :-

“48. Before discussing the evidence of the witnesses we might
mention a few preliminary remarks against the background of
which the oral statements are to be considered. All persons to
whom the oral statements are said to have been made by Manju
when she visited Beed for the last time, are close relatives and
friends of the deceased. In view of the close relationship and
affection any person in the position of the witness would naturally
have a tendency to exaggerate or add facts which may not have
been stated to them at all. Not that this is done consciously but
even unconsciously the love and affection for the deceased would
create a psychological hatred against the supposed murderer and,
therefore, the Court has to examine such evidence with very great
care and caution. Even if the witnesses were speaking a part of the
truth or perhaps the whole of it, they would be guided by a spirit of
revenge or nemesis against the accused person and in this process
certain facts which may not or could not have been stated may be
imagined to have been stated unconsciously by the witnesses in
order to see that the offender is punished. This is human
psychology and no one can help it.”

28. The Supreme Court in the case of SectionMahavir Singh vs. State of M.P.

reported in (2016) 10 SCC 220has held as under:-

“18. The High Court has attached a lot of weight to the evidence of the
said MadhoSingh (PW 9) as he is an independent witness. On perusal of
the record, it appears that the said person already had deposed for the
victim family on a number of previous occasions, that too against the
same accused. This being the fact, it is important to analyse the
jurisprudence on interested witness. It is a settled principle that the
evidence of interested witness needs to be scrutinised with utmost care. It
can only be relied upon if the evidence has a ring of truth to it, is cogent,
credible and trustworthy. Here we may refer to chance witness also. It is
to be seen that although the evidence of a chance witness is acceptable in
India, yet the chance witness has to reasonably explain the presence at
that particular point more so when his deposition is being assailed as
being tainted. A contradicted testimony of an interested witness cannot be
usually treated asconclusive.”

29. The Supreme Court in the case of Harbeer Singh vs. Sheeshpalreported

in (2016) 16 SCC 418 hasheld as under:

“18. Further, the High Court has also concluded that these witnesses were
interested witnesses and their testimony was not corroborated by
14

independent witnesses. Weare fully in agreement with the reasons
recorded by the High Court in coming to this conclusion.

19. SectionIn Darya Singh v. State of Punjab, this Court was of the opinion that a
related or interested witness may not be hostile to the assailant, but if he
is, then his evidencemust be examined very carefully and all the
infirmities must be taken into account.This is what this Court said: (AIR
p. 331, para 6) “6. There can be no doubt that in amurder case when
evidence is given by near relatives of the victim and the murder isalleged
to have been committed by the enemy of the family, criminal courts
mustexamine the evidence of the interested witnesses, like the relatives of
the victim, verycarefully. … But where the witness is a close relation of the
victim and is shown to share the victim’s hostility to his assailant, that
naturally makes it necessary for thecriminal courts to examine the
evidence given by such witness very carefully andscrutinise all the
infirmities in that evidence before deciding to act upon it. In dealingwith
such evidence, courts naturally begin with the enquiry as to whether the
saidwitnesses were chance witnesses or whether they were really present
on the scene ofthe offence. … If the criminal court is satisfied that the
witness who is related to thevictim was not a chance witness, then his
evidence has to be examined from the pointof view of probabilities and the
account given by him as to the assault has to becarefully scrutinised.”

20. However, we do not wish to emphasise that the corroboration by
independent witnesses is an indispensable rule in cases where the
prosecution is primarily basedon the evidence of seemingly interested
witnesses. It is well settled that it is thequality of the evidence and not the
quantity of the evidence which is required to bejudged by the court to
place credence on the statement.

21. Further, in SectionRaghubir Singh v. State of U.P., it has been held that:
(SCC p. 84, para10) “10. … the prosecution is not bound to produce all the
witnesses said to have seenthe occurrence. Material witnesses considered
necessary by the prosecution forunfolding the prosecution story alone
need to be produced without unnecessary andredundant multiplication of
witnesses. … In this connection general reluctance of anaverage villager to
appear as a witness and get himself involved in cases of rivalvillage
factions when spirits on both sides are running high has to be borne in
mind.”

30.In so far as the allegation of torture and cruelty, in the first place

there is clear evidence that the death took place 8 years after the

marriage of the victim hence no presumtion of cruelty can be drawn

against the accused u/s 113 of the evidence Act. Reference in this

regard to the case ofHeera Lal and Anr Vs State of Rajasthan

reported in (2018) 11 SCC Pg 323. At paragraph 7 it was stated as

follows :-

“7. This Court in an illuminating judgment in SectionRamesh
Kumar v. State of Chhattisgarh [Ramesh Kumar v. State of
Chhattisgarh, (2001) 9 SCC 618 : 2002 SCC (Cri) 1088] has stated
the law as follows: (SCC pp. 626-27, para 12)
15

“12. This provision was introduced by the SectionCriminal Law
(Second) Amendment Act, 1983 with effect from 26-12-1983 to
meet a social demand to resolve difficulty of proof where
helpless married women were eliminated by being forced to
commit suicide by the husband or in-laws and incriminating
evidence was usually available within the four corners of the
matrimonial home and hence was not available to anyone
outside the occupants of the house. However, still it cannot be
lost sight of that the presumption is intended to operate
against the accused in the field of criminal law. Before the
presumption may be raised, the foundation thereof must exist.
A bare reading of Section 113-A shows that to attract
applicability of Section 113-A, it must be shown that (i) the
woman has committed suicide, (ii) such suicide has been
committed within a period of seven years from the date of her
marriage, (iii) the husband or his relatives, who are charged
had subjected her to cruelty. On existence and availability of
the abovesaid circumstances, the court may presume that
such suicide had been abetted by her husband or by such
relatives of her husband. Parliament has chosen to sound a
note of caution. Firstly, the presumption is not mandatory; it
is only permissive as the employment of expression “may
presume” suggests. Secondly, the existence and availability of
the abovesaid three circumstances shall not, like a formula,
enable the presumption being drawn; before the presumption
may be drawn the court shall have to have regard to “all the
other circumstances of the case”. A consideration of all the
other circumstances of the case may strengthen the
presumption or may dictate the conscience of the court to
abstain from drawing the presumption. The expression — “the
other circumstances of the case” used in Section 113-A
suggests the need to reach a cause-and-effect relationship
between the cruelty and the suicide for the purpose of raising
a presumption. Last but not the least, the presumption is not
an irrebuttable one. In spite of a presumption having been
raised the evidence adduced in defence or the facts and
circumstances otherwise available on record may destroy the
presumption. The phrase “may presume” used in Section 113-
A is defined in Section 4 of the Evidence Act, which says —
‘Whenever it is provided by this Act that the court may
presume a fact, it may either regard such fact as proved,
unless and until it is disproved, or may call for proof of it.’ ”

31. The evidence of the PW1 and PW4 must be viewed carefully and

cautiously. None of the witnesses have supported any allegation of

torture of the victim. Apart from alleging torture there is no evidence

to suggest the manner and particulars of such torture. A mere

allegation of torture is not enough to establish cruelty within the
16

meaning of Section 498A of the There is no clear evidence that the

victim sufferredcreulty or torture or harrassmentimmdiately prior to

the death. The mens rea of the Appellants has not been clearly

established.

32. The nature of the cruelty has not been established i.e. whetherit was

physical or mental. If physical then the nature of such cruelty has not

come to record. No external injury apart burns has emerged from the

post mortem report. The cause of death was not mentioned in the

post mortem report. The original post mortem report was not

exhibited. The carbon copy of the post mortem report that was in fact

exhibited was denied having been given by doctor to the police

authorities. The viscera was sent for Forensic Examination. Such FSL

report was not seen by the doctor. There is in fact no FSL report.

33. In this regard it would be useful to refer to some judgments of the

Hon’ble Supreme Court of India. In Rajesh Sharma Vs State of UP

reported in (2018) 10 SCC 472 at paragraph 14 it was stated as

follows:-

“14. Section 498-A was inserted in the statute with the laudable
object of punishing cruelty at the hands of husband or his
relatives against a wife particularly when such cruelty had
potential to result in suicide or murder of a woman as
mentioned in the Statement of Objects and Reasons of Act 46
of 1983. The expression “cruelty” in Section 498-A covers
conduct which may drive the women to commit suicide or
cause grave injury (mental or physical) or danger to life or
harassment with a view to coerce her to meet unlawful
demand…………….”

17

34. The FSL report has never seen in the light of the day. The burns

indicated do not prove the allegation of cruelty. Strangely the

statement of the PW4 that the appellants demanded Rs.15,000/- as

dowry from the victim and her father does not even find place in the

complaint.Reference in this regard is made to the decision of the

Supreme Court in the case of Ram Kumar Pandey Vs State of

M.P.reported in (1975)3 SCC Pg 817. At paragraphs 8,12 and18 it

was held as follows :-

“8. The abovementioned first information report was lodged at Police
Station Ganj on March 23, 1970 at 9.15 p.m. The time of the incident is
stated to be 5 p.m. The only person mentioned as an eye-witness to the
murder of Harbinder Singh is Joginder Singh. The two daughters
Taranjit Kaur, PW 2, and Amarjit Kaur, PW 6, are mentioned in the FIR
only as persons who saw the wrapping of the chadar on the wound of
Harbinder Singh. What is most significant is that it is nowhere
mentioned in the FIR that the appellant had stabbed Harbinder Singh
at all. It seems inconceivable that by 9’15 p.m. it would not be known
to Uttam Singh, the father of Harbinder Singh, that the appellant had
inflicted one of the two stab wounds on the body of Harbinder Singh.

12. Again, we find that Taranjit Kaur, PW 2, and Amarjit Kaur, PW 6,
daughters of Uttam Singh, have figured as eyewitnesses of the whole
occurrence including the stabbing of Harbinder Singh by the appellant.
As already indicated, they are not mentioned in the FIR as eyewitnesses
of the murder. This is also very significant in the present case. They
have been mentioned only as witnesses of wrapping a chadaron the
wound of Harbinder Singh who was then said to be lying in the lane
after the occurrence.

18. Lastly, the alleged dying declaration is also not mentioned in the
FIR On the other hand, the FIR, mentions Joginder Singh who tried to
prove the dying declaration only, as an eyewitness.”

35. The conviction by the High Court in the Ramkumar Pandey case

(supra) was reversed for such infirmity.

36. The evidence of PW 1 and 4 do not prove beyond reasonable doubt

that the victim girl was subjected to such creulty that immediately

drove her to kill herself. Such cruelty must exist immediately prior to

and proxmiate to the death of the victim. There is no clear evidence in
18

this regard. Refrence in this regard is made to the case of Hira Lal Vs

State (NCT of Delhi) reported in (2003) 8 SCC Pg 80. At paragraphs

8 and 9 it was laid down as follows :-

“8. Section 304-B IPC which deals with dowry death, reads as

follows:

“304-B. Dowry death.–(1) Where the death of a woman is caused

by any burns or bodily injury or occurs otherwise than under

normal circumstances within seven years of her marriage and it

is shown that soon before her death she was subjected to cruelty

or harassment by her husband or any relative of her husband

for, or in connection with, any demand for dowry, such death

shall be called ‘dowry death’, and such husband or relative shall

be deemed to have caused her death.

Explanation.–For the purpose of this sub-section, ‘dowry’ shall have
the same meaning as in Section 2 of the Dowry Prohibition Act, 1961
(28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment
for a term which shall not be less than seven years but which may
extend to imprisonment for life.”

The provision has application when death of a woman is caused by any
burns or bodily injury or occurs otherwise than under normal
circumstances within seven years of her marriage and it is shown that
soon before her death she was subjected to cruelty or harassment by
her husband or any relatives of her husband for, or in connection with
any demand for dowry. In order to attract application of Section 304-B
IPC, the essential ingredients are as follows:

(i) The death of a woman should be caused by burns or bodily injury or
otherwise than under a normal circumstance.

(ii) Such a death should have occurred within seven years of her
marriage.

(iii) She must have been subjected to cruelty or harassment by her
husband or any relative of her husband.

(iv) Such cruelty or harassment should be for or in connection with
demand of dowry.

19

(v) Such cruelty or harassment is shown to have been meted out to the
woman soon before her death.

Section 113-B of the Evidence Act is also relevant for the case at hand.
Both Section 304-B IPC and Section 113-B of the Evidence Act were
inserted as noted earlier by SectionDowry Prohibition (Amendment) Act 43 of
1986 with a view to combat the increasing menace of dowry deaths.
Section 113-B reads as follows:

“113-B. Presumption as to dowry death.–When the question is whether
a person has committed the dowry death of a woman and it is shown
that soon before her death such woman had been subjected by such
person to cruelty or harassment for, or in connection with, any demand
for dowry, the Court shall presume that such person had caused the
dowry death.

Explanation.–For the purposes of this section, ‘dowry death’ shall have
the same meaning as in Section 304-B of the Indian Penal Code (45 of
1860).”

The necessity for insertion of the two provisions has been amply
analysed by the Law Commission of India in its 21st Report dated 10-8-
1988 on “Dowry Deaths and Law Reform”. Keeping in view the
impediment in the pre-existing law in securing evidence to prove dowry-
related deaths, the legislature thought it wise to insert a provision
relating to presumption of dowry death on proof of certain essentials. It
is in this background that presumptive Section 113-B in the SectionEvidence
Act has been inserted. As per the definition of “dowry death” in Section
304-B IPC and the wording in the presumptive Section 113-B of the
Evidence Act, one of the essential ingredients, amongst others, in both
the provisions is that the woman concerned must have been “soon
before her death” subjected to cruelty or harassment “for or in
connection with the demand of dowry”. Presumption under Section
113-B is a presumption of law. On proof of the essentials mentioned
therein, it becomes obligatory on the court to raise a presumption that
the accused caused the dowry death. The presumption shall be raised
only on proof of the following essentials:

(1) The question before the court must be whether the accused has
committed the dowry death of the woman. (This means that the
presumption can be raised only if the accused is being tried for the
offence under Section 304-B IPC.)

(2) The woman was subjected to cruelty or harassment by her husband
or his relatives.

(3) Such cruelty or harassment was for or in connection with any
demand for dowry.

(4) Such cruelty or harassment was soon before her death.

9. A conjoint reading of Section 113-B of the Evidence Act and Section
304-B IPC shows that there must be material to show that soon before
her death the victim was subjected to cruelty or harassment. The
prosecution has to rule out the possibility of a natural or accidental
death so as to bring it within the purview of “death occurring otherwise
than in normal circumstances”. The expression “soon before” is very
relevant where Section 113-B of the Evidence Act and Section 304-B
IPC are pressed into service. The prosecution is obliged to show that
soon before the occurrence there was cruelty or harassment and only in
20

that case presumption operates. Evidence in that regard has to be led
by the prosecution. “Soon before” is a relative term and it would depend
upon the circumstances of each case and no straitjacket formula can
be laid down as to what would constitute a period of soon before the
occurrence. It would be hazardous to indicate any fixed period, and
that brings in the importance of a proximity test both for the proof of an
offence of dowry death as well as for raising a presumption under
Section 113-B of the Evidence Act. The expression “soon before her
death” used in the substantive Section 304-B IPC and Section 113-B of
the Evidence Act is present with the idea of proximity test. No definite
period has been indicated and the expression “soon before” is not
defined. A reference to the expression “soon before” used in Section 114
Illustration (a) of the SectionEvidence Act is relevant. It lays down that a court
may presume that a man who is in the possession of goods “soon after
the theft, is either the thief or has received the goods knowing them to
be stolen, unless he can account for their possession”. The
determination of the period which can come within the term “soon
before” is left to be determined by the courts, depending upon facts and
circumstances of each case. Suffice, however, to indicate that the
expression “soon before” would normally imply that the interval should
not be much between the cruelty or harassment concerned and the
death in question. There must be existence of a proximate and live link
between the effect of cruelty based on dowry demand and the death
concerned. If the alleged incident of cruelty is remote in time and has
become stale enough not to disturb the mental equilibrium of the
woman concerned, it would be of no consequence.”

37. Since there is no evidence to suggest any immediate provocation

available on record the prosecution have not been able to establish a

clear connection between the alleged Cruelty and the death of the

victim.

38. Furthur each of the neighboursfour of whom examined have denied

knowledge of any marital discord between the victim and the Accused

No.1. On the contrary it is abundantly clear that the victim was

depressed for being unable to beget a child. The need for

corroboration of the existance of cruelty even from the neighbours has

been discussed by the Supreme Court in the case of

JagdishrajKhatta Vs State of Himachal Pradesh reported in 2019

SCC Online SC 611. At Paragraph 8 it was stated as follows :-

“8. With respect to the former, we are unable to agree with the
reasoning of the High Court in relying on the testimonies of the
21

relatives of the deceased. As highlighted by the Trial Court, not only
were the allegations in the FIR extremely general in nature, but also
the same were never raised by the family of the deceased when they
were present at the time of preparation of the inquest report or to the
investigating officer. In fact, the allegation of cruelty meted out by the
appellant against the deceased appears for the first time at the time of
filing the FIR, after a delay of nearly one and a half days. Further, the
prosecution did not even examine any neighbor of the appellant and
the deceased to substantiate the allegation that the appellant ill-
treated the deceased. In fact, and as the High Court also recorded, it
appears from the evidence on record that the appellant treated the
deceased with love and affection and provided for all her needs. In
these circumstances, a reliance on the general oral testimonies of the
prosecution witnesses, without any supporting evidence, would be
misplaced. Further, as the High Court itself indicated somewhat
contradictorily, reliance on the instances testified to by the witnesses
would not be appropriate as the said incidents had taken place much
before the deceased’s death and could not be treated as conduct
which drove the deceased to commit suicide.”

39. SectionIn Tarun v. State of W.B., (2001) 10 SCC 754 at page 755 it was
held as follows : –

“4. To appreciate this contention, we have ourselves scrutinised the
evidence of PWs 2, 4 and 5. The maidservant (PW 4), who deposed in
her evidence-in-chief about the fact that the accused used to assault
the deceased almost daily on the instigation of his sister, but, in the
cross-examination, it has been elicited that she has not stated so in
her statement to the police recorded under Section 161 CrPC. Such
material omission would discredit her version in court. If her evidence
is taken out from the purview of consideration, then the evidence of
PWs 2 and 5 cannot be held to be of such nature which would
establish the cruelty on the part of the husband to bring home the
offence under Section 498-A IPC. In our view, therefore, the High
Court was in error in upholding the conviction under Section 498-A
IPC.”

40. Coming to the question of abetment of suicide under Section 306 of

the Indian Penal Code, it is necessary and vital that the abetement

must occur by way of words or some overt action. Such actions must

be immediately prior to the actual act of suicide. It must also be
22

shown that it is a directand immediate consequence of such words or

actions that the victim in fact was driven to end her life.

41. In Gangula Mohan Reddy VS State of Andhra Pradesh reported in (

2010) 1 SCC page 750, the Honble Supreme Court held

“13. SectionIn State of W.B. v. Orilal Jaiswal [(1994) 1 SCC 73 : 1994 SCC (Cri)
107] this Court has cautioned that the court should be extremely careful
in assessing the facts and circumstances of each case and the evidence
adduced in the trial for the purpose of finding whether the cruelty meted
out to the victim had in fact induced her to end the life by committing
suicide. If it appears to the court that a victim committing suicide was
hypersensitive to ordinary petulance, discord and differences in domestic
life quite common to the society to which the victim belonged and such
petulance, discord and differences were not expected to induce a
similarly circumstanced individual in a given society to commit suicide,
the conscience of the court should not be satisfied for basing a finding
that the accused charged of abetting the offence of suicide should be
found guilty.

14. The Court in Ramesh Kumar case [(2001) 9 SCC 618 : 2002 SCC
(Cri) 1088] came to the conclusion that there is no evidence and material
available on record wherefrom an inference of the appellant-accused
having abetted commission of suicide by Seema may necessarily be
drawn.

15. In the instant case, the deceased was undoubtedly hypersensitive to
ordinary petulance, discord and differences which happen in our day-to-
day life. Human sensitivity of each individual differs from the other.
Different people behave differently in the same situation.

16. This Court in Chitresh Kumar Chopra v. State (Govt. of NCT of
Delhi) [(2009) 16 SCC 605 : (2009) 11 Scale 24] had an occasion to deal
with this aspect of abetment. The Court dealt with the dictionary
meaning of the words “instigation” and “goading”. The Court opined that
there should be intention to provoke, incite or encourage the doing of an
act by the latter. Each person’s suicidability pattern is different from the
other. Each person has his own idea of self-esteem and self-respect.
Therefore, it is impossible to lay down any straitjacket formula in dealing
with such cases. Each case has to be decided on the basis of its own
facts and circumstances.

17. 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. The intention of the legislature and the
ratio of the cases decided by this Court is 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
committed suicide.”

23

42. In the case at hand there is evidence on record in the instant case

that the victim was depressed since she was childless. There was

nobody else found or proven to have been present at the time when

the victim set herself of fire. There is no evidence on record to show

that the victim was immediately provoked to kill herself.

43. Furthur, the conclusion of the trial court that since admittedly the

victim was not killed by the appellants it must be presumed that she

committed suicide,is preposterous and based on conjuncture and

surmise. It must be noted here that no burning material was seized or

found in the vicinity where the body was found No igniting material

was found either. The police admittedly have not seized any such

article. No such article was exhibited. No seizure list was prepared.

The conclusion of the trial court that the victim burnt herself is

therefore not borne out from the records and cannot be accepted.

44. It is true, as has been held by the Supreme Court in some cases that

cruelty cannot be always heard or visible to neighbours. However in

the instant case it is seen that the all the residents of the village /

area are members of the Basak family / community. The chance of

being distant relatives of one another cannot be ruled out. It is

common place in Bengal that persons of similar lineage and having

the same surname all reside together asa community and the areas

are named after such surname. It is therefore surprising that the

victim only told her mother and the maternal uncle of the Appellant
24

No.2 did not know anything about marital discord between the Victim

and the Appellant No.1. There is no evidence on record to suggest

when the last incident of torture occurred.

45. Furthur, PW1 had stated in his evidence that he had informed

NarottamBasak about the cruelty meeted out to the victim. The

prosecution has strangely not examined him.

46. There is yet another vital lacuna in the prosecution case. It has been

admitted both by PW 1 and PW 4 that their son accompanied them to

the victim’s matrimonial house after coming to know of the death of

the victim. But strangely, curiously and surprisingly the prosecution

has not examined him. He could have been a vital witness to support

the evidence of the PW1 and PW4 and the prosecution case. His

evidence has been withheld by the prosecution similar to that of

NarottamBasak, Suren Basak, SukumarBasak and PintuBasak.

Adverse inference is liable to be drawn against the prosecution in that

regard.

47. The cause of death also has not been proved since firstly the original

post mortem report has not been produced in evidence. The carbon

copy of the post mortem report that was exhibited was denied having

been supplied by the doctor to the police who conducted the post

mortem. In any event even if such carbon copy of the post mortem

report is accepted, the opinion on the cause of death was left

inconclusive, i.e. awaiting the FSL report. It is only the evidence of PW

11 given after 4 years of the incident, that suggested that the victim
25

died of 99% burns. As if this was not enough FSL report was never

exhibited nor seen by the PW 11,Dr. P. Banerjee, or anyone for that

matter. The cause of death by burning has therefore also not been

conclusively established by the prosecution.

48. The medicalreports of the Ranaghat Sub-Divisional Hospital whether

the victim was brought dead has also not been brought on record by

the prosecution. It is in this light that the evidence of PW 2, PW 3, PW

7 and PW 9 that there wasno marital discord between the appellant 1

and the victim assumes some importance and cannot be lightly or

brushed aside. Apart from the fact that the prosecution has not been

establishbeyond any reasonable doubt either the factum of cruelty, or

abetment and the manner to the abetment or the factum of suicide,

the evidence of the aforesaid witnesses throws up serious doubts on

the prosecution case.

49. The trial judge failed to notice the above serious infirmities in the

prosecution case and has unfortunately based his findings wholly on

conjecture and surmise. The judgement of the Trial Court impugned is

more of an emotional outburst.

50. For the reasons stated hereinabove the order of conviction cannot be

sustained. The appellants ought to have been the benefit of doubt and

hence impugned judgment and orders are set aside and the

appellants are set free and at large and the bail bonds are liable to be

discharged.

26

51. The Appeal is allowed. There shall be no order as to costs.

52. Urgent Xerox Certified copy of this Judgment, if applied for, be

supplied to the parties on urgent basis.

(RajasekharMantha, J.)

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2020 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation