Calcutta High Court Surajmal Banthia And Anr.-vs-State Of West Bengal on 21 March, 2003
Equivalent citations:(2003) 2 CALLT 164 HC, II (2003) DMC 546
Author: P Sinha
Bench: A Talukdar, P N Sinha
JUDGMENT
P.N. Sinha, J.
1. This appeal is directed against the judgment and order of conviction passed by the learned Judge, 12th Bench of City Sessions Court, Calcutta in Session Trial No. 1 of May, 1985 (Sessions Case No. 15 of 1984) whereby the learned Judge sentenced the appellants to suffer rigorous imprisonment for 8 years each and to pay a fine of Rs. 25,000/-each in default to suffer rigorous imprisonment for one year more for offence under Section 306/34 of IPC. During pendency of the appeal the appellant No. 1 Surajmal Banthia has expired and the appeal against him has abated. Therefore, only appellant No. 2 Smt. Doli Devi Banthia is before us in this appeal and we are to consider whether the judgment and order of conviction and sentence imposed on the appellant is sustained in law and fact.
2. The prosecution case, in short, is that Kusum Bothra (Banthia), the daughter of Dhanraj Bothra (PW 1) and Mr. Mohini Bothra (PW 2) was given in marriage with Indrajit Banthia, son of the appellant on 19th April, 1980. After marriage of Kusum Banthia her husband and parents of husband started physical torture on her and ill treated her. On 15.9.1982 at about 18.15 hours PW 1 and 2 received information over phone from Bijoy Singh Baid (PW 5) that Kusum Banthia (deceased) fell unconscious in her in-laws flat at 132/1, M.G. Road. Accordingly, PW 1 and 2 rushed to the flat of father-in-law Kusum Banthia and found their daughter Kusum lying unconscious on bed. PW 1 did not find pulse beat or heart beat of Kusum and at his request Kusum Banthia was removed to Marwari Relief Society Hospital where she was declared brought dead at 19.35 hours on 15.9.1982. The inquest and post mortem examination were made on 16.9.1982 and the autopsy surgeon who held the post mortem examination opined that death was due to poisoning. It was learned that the deceased Kusum Banthia committed suicide by consuming poison. S.I. of Police S. Roy of Jorasankho P.S. lodged suo motu FIR (Ext. 6) and on the basis of it Jorasankho P.S. Case No. 487 dated 16.9.1982 under Section 306/34 of IPC was started. After completing investigation the police submitted charge-sheet against Surajmal Banthia (deceased) and Doly Debi Banthia and after trial the learned Judge held them guilty under Section 306/34 of IPC and convicted them to suffer rigorous imprisonment for 8 years each and to pay fine of Rs. 25,000/- each in default to suffer rigorous imprisonment for one year more as already mentioned earlier.
3. Mr. Bhaskar Sen learned advocate appearing for the appellant contended that the judgment and order of the conviction is bad in law and there was no evidence at all that the appellant subjected the deceased Kusum to cruelty. The deceased Kusum Banthia stayed in her in-laws house for a very brief period as from evidence it transpires that three months after marriage she returned to her parents house and stayed there for six months. Evidence further discloses that she had been to Rajasthan twice with her in-laws and she also went to Rajasthan once with her parents on the occasion of her youngest sister Suman’s marriage. From evidence of witnesses it further transpired that Kusum and her husband Indrajit lived separately for about two months at 24, Banstola Lane. Barring a casual statement that in-laws tortured her physically and mentally and demanded more money, ornaments and other valuables. There is nothing in evidence to establish that the appellant perpetrated physical and mental torture on her amounting to abetment to commit suicide. PW 1 Dhanraj Bothra uttered names of three persons namely Manik Banthia, Kamal Singh Bhutoria and Manik Babu’s employer Mohorlal Mohta and requested them to settle the dispute concerning his daughter but none of these three persons were examined. PW 1 also uttered name of Bijoy Singh Baid but, PW 5 Bijoy Singh Baid did not state anything about torture on deceased Kusum by the appellant.
4. Mr. Sen further contended that the evidence of PW 4 is unbelievable as it is not expected that he would look inside the flat of Kusum Banthia and her in-laws through the door of verandah awakening himself till 2 a.m. dead hours of night leaving aside his own work and when from evidence it appears that, if the door of verandah of the flat of the in-laws of Kusum are closed nothing can be seen inside the flat of in-laws of the deceased from the room of PW 4. The investigation was not proper as the investigating officer did not examine any person of 132/1 and 134, M.G. Road in support of the prosecution case that the appellant used to torture the deceased. The servant of the house of the in-laws of Kusum was not examined and the I.O. did not examine any person of 24, Banstala Lane. There is no evidence at all that the appellant being mother-in-law of deceased Kusum abetted the commission of suicide of deceased Kusum. PW 1 stated that Kusum was mentally hurt as her husband Indrajit did not attend dinner on the night of 14th September at his residence. She returned to her in-laws house on 14th September, 1982 at about 10.30 p.m. and next day she committed suicide. It establishes that the appellant was innocent as she did not do any such act which may amount to causing abetment to suicide of Kusum. It rather transpires that Kusum felt insulted in her parents house being teased by members of the family of the de facto complainant on the night of 14.9.1982 and thereafter on the next day she committed suicide.
5. Mr. Sen further contended that there is no evidence at all that the appellant or any member of in-laws of Kusum committed cruelty on the victim so as to raise presumption as to the abetment of suicide under section 113A of Evidence Act. In order to constitute an offence under Section 306 of IPC it must be proved that there was abetment and the abetment must be for the commission of suicide. He contended that there is no evidence at all that the appellant urged forward or provoked or encouraged Kusum to commit suicide. In order to establish offence under Section 306 of IPC elements of abetment as mentioned in Section 107 of IPC must be fulfilled. It cannot be said that whenever a person is subjected to cruel treatment that person will commit suicide and, consequently, that the person responsible for such cruel acts had either the knowledge or intention that the person subjected to such cruelty would commit suicide. Something else is necessary to hold the person responsible for the acts of cruelty and torture in order to find him guilty under Section 306 of IPC. As there is no evidence at all that the appellant did such act or commit such cruel act either with the knowledge or intention that Kusum who was subjected to such cruelty would commit suicide, the prosecution has failed to bring home the charge under Section 306 of IPC against the appellant and the appellant should be acquitted. In support of his contention he placed before us the decisions and and
contended that the principles laid down in these decisions clearly reveal that there is no element of 306 of IPC against the appellant.
6. Mr. Kasem Ali Ahmed appearing for the respondent State contended that deceased Kusum Banthia expired within two and half years of her marriage. Unless there was perpetrated torture on her why a newly married young wife would commit suicide within two and half years of her marriage when women in India generally try to adjust in their in-laws house. In the instant case presumption under Section 113A of the Evidence Act can easily be drawn. The accused persons demanded more dowry and inflicted both physical and mental torture on deceased Kusum. PW 2, mother of deceased came into the house of in-laws of Kusum and invited them to attend the marriage ceremony of their youngest daughter Suman, but they did not attend the marriage ceremony. This conduct amounted to insult to parents of deceased Suman and mental torture on deceased. PW 4 is an independent witness and his evidence proves the torture perpetrated by the appellant and other in-laws on deceased.
7. Mr. Kasem Ali further contended that from evidence of PW 1 and PW 2 reveals that on the date of incident the appellant or the husband of deceased did not take any step to call a doctor nor they took steps to send Kusum before hospital or any Nursing Home though in evidence it transpired that Kusum consumed poison at noon. Only after arrival of parents of Kusum the deceased was sent to Marwari Relief Society Hospital at the instance of parents of deceased. Failure of the appellants to call a doctor or to send Kusum to hospital or nursing home amounts to fulfilling elements of conspiracy and it further establishes abetment of appellant to the suicide of deceased. There is sufficient evidence and direct nexus as well as proximity of cause of suicide in the instant case. Evidence of PW 1 and PW 2 also reveals that the mother-in-law of Kusum used to tell that if Kusum dies they will be happy. Accordingly, the learned Judge rightly convicted the appellant and the conviction and sentence imposed on appellant should be sustained. In support of his contention Mr. Kasem Ali Ahmed placed before us the decisions reported in 1994 CrLJ 2104 and .
8. We have carefully peruse the evidence and materials on record and duly considered the submissions made by learned advocates before us. The appellant was charged for committing offence under Section 306/34 of IPC along with her husband who has expired during pendency of the appeal and the charge runs as follows:
“First- That you on or about the 16th day of September, 1982 Smt. Kusum Banthia daughter in law of both of you committed suicide at 132/1, Mahatma Gandhi Road, Calcutta and that you with common intention abetted its commission by ill-treatment, physical torture and mental pressure and thereby committed an offence punishable under Section 306/34 of the Indian Penal Code, …..”
9. Let us analyses the evidence of the witnesses who were examined by prosecution to establish the charge against the appellant. PW 1 Dhanraj Bothra and PW 2 Mr. Mohini Bothra, parents of the deceased Kusum stated in their evidence that on 21st day of marriage Kusum returned to them and reported that the appellant teased her on dowry and her in-laws are insisting upon more money, ornaments and other valuables and she further told them that the Banthia’s are not a good family. Three months after marriage Kusum expressed her unwillingness to return to matrimonial home as her in-laws perpetrated cruelty on her and sometimes she had to pass days without food. She even complained to them that her husband and the appellant assaulted her at times. As Kusum was unwilling to return to her in-laws house they contacted Manik Banthia, Kamal Singh Bhutoria and Mohor Lal Mohta and also approached their cousin Bijoy Singh Baid (PW 5) for settlement of dispute regarding Kusum. In spite of their assurance Kusum did not go to her in-laws house and stayed in her parents house for about six months. PW 1 and PW 2 further stated that Kusum reported to them about bad behaviour and ill treatment of her in-laws. PW 2 in her evidence stated that father-in-law of Kusum touched her body and misbehaved with Kusum and Kusum had to pass several hours inside bath room to avoid embarrassing situation involving her father-in-law. Kusum and her husband also stayed at 24, Banstola Lane for about two months. From there she went to Rajasthan on the occasion of her youngest sister Suman’s marriage and after return from Rajasthan she returned back to her in-laws house. PW 2 stated that Kusum told to her that her husband and mother-in-law asked her to die so that they could get rid of her. On 13.9.1982 she came to her parents house and after attending the function on 14.9.1982 she returned to her in-laws house at about 10.30 p.m. Thereafter, on 15.9.1982 Kusum committed suicide.
10. PW 3 did not speak anything about torture, ill treatment or cruelty perpetrated by the appellant on deceased Kusum Banthia. His evidence reveals that on that evening at the request of several persons he brought his own car and driving the car himself carried the daughter-in-law of Surajmal Banthia i.e. Kusum, one son of Surajmal Banthia, Surajmal Banthia and his wife and dropped Surajmal Banthia and his wife at Jorasanko P.S. and went to Marwari Relief Society Hospital and admitted Kusum Banthia in that hospital. PW 5 Bijoy Singh Bald also did not state anything about torture or cruelty perpetrated by the appellant on Kusum. It appears from his evidence that at the request of Indrajit Banthia he went to Surajmal Banthia in Chinipatti and also at the request of Indrajit and Surajmal Banthia informed Dhanraj Bothra over telephone regarding illness of Kusum.
11. PW 6 Ali Akbar is a witness of seizure of some articles from 132/1, M.G. Road. PW 7 Mohon Rudra is the doctor who was attached to emergency of Marwari Relief Society Hospital on 15.9.1982 when at about 7.35 p.m. on that day Kusum Banthia was brought dead to that hospital. His evidence disclosed that Binod Banthia, constable Biswanath Singh and Sibji Pande brought the body of Kusum to hospital. PW 8 Dr. Rabindra Basu, Reader of Department of Forensic State Medicine and was posted as lecturer in the said department of Medical College in September, 1982 held the post mortem examination over the dead body of Kusum Banthia on 16.9.1982 at 1.20 p.m. He opined that death was due to the effect of propoxure, poisoning ante mortem in nature.
12. PW 4 Mohon Bhiwaniwala is a resident of 134, M.G. Road, a building intervened by a lane of 6’/7′ feets width from the building of 132/1. M.G. Road. He has posed himself as a witness of incident and saw torture on deceased Kusum perpetrated by the appellant and others. Mr. Kasem Ali, learned advocate for State has placed much reliance on his evidence and we shall discuss later on credibility of his evidence. PW 9 S.I. Santi Prasad Roy is the Investigating Officer in this case and examined witnesses, made seizure of articles, collected post mortem report and other reports and after completing investigation submitted charge-sheet against the accused persons. We shall discuss his evidence later on though it is clear from his evidence that PW 1, PW 2 and PW 4 while they were examined by him during course of investigation did not state so many matters which they stated while giving evidence in Court.
13. We now like to enter into discussion how far the prosecution case has been established from the evidence of above stated witnesses and how far the said witnesses are trustworthy and how far their evidence is creditworthy. We find that except general statement of torture, ill-treatment and demand of more money, ornaments and valuables the evidence of PW 1 and PW 2 lacks ingredients to attract establishment of offence under Section 306 of IPC. Evidence of PW 1 and PW 2 disclosed that 21 days after marriage Kusum returned to their house and complained of torture on her and teasing her demanding more money, ornaments and other valuables by her husband and in-laws and told that the Banthia’s are not a good family. They further indicated that three months after marriage Kusum came to their house and expressed her inability to live in matrimonial home and disclosed her unwillingness to return to matrimonial home. They contacted Manik Banthia, Kamal Singh Bhutoria and Mohor Lal Mohta and sought their co-operation in setting the dispute concerning Kusum. None of these persons were examtned by prosecution to establish that PW 1 informed the above named three persons about grievances of his daughter and sought their co-operation in settling the dispute concerning his daughter in her in-laws family. PW 1 also approached his cousin Bijoy Singh Baid as he had good relation with Surajmal Banthia but, evidence of PW 5 Bijoy Singh Baid do not throw any light in support of prosecution case. PW 5 stated nothing in his evidence regarding torture, demand of dowry etc. made by the appellant and her deceased husband Surajmal on Kusum.
14. Mr. Kasem Ali contended that evidence of PW 1 and PW 2 reveals that the appellant, her husband and Indrajit none gave information to PW 1 and PW 2 regarding serious condition of Kusum. They did not take any step to call doctor for examination of Kusum and did not take any step to take away Kusum before any doctor. This establishes that the appellant formed conspiracy with her son and husband and it proves abetment of appellant to commit suicide by Kusum. We are unable to accept the contention of Mr. Kasem Ali as evidence of PW 3 and PW 5 have belied these allegations. Evidence of PW 3 reveals that on 15.9.1982 at about 6.30 p.m. about 25 people came to him and requested him to transfer daughter-in-law of Surajmal Banthia to a nearby hospital. Accordingly, he brought his own car and drove himself carrying daughter-in-law of Surajmal Banthia i.e. Kusum, another son of appellant, the appellant and Surajmal Banthia. On the way he dropped the appellant and Surajmal Banthia at Jorasanko P.S. and proceeded to Marwari Relief Society Hospital taking away Kusum accompanied by one of the sons of appellant Evidence of PW 5 reveals that on that day Indrajit Banthia, husband of Kusum came to him and requested him to find out his father Surajmal Banthia. Indrajit further told him that since residential telaphone of PW 1 is out of order he requested PW 5 to convey message of illness of Kusum to PW 1. Accordingly PW 5 informed PW 1 over telephone being arranged by Surajmal Banthia and conveyed message regarding illness of Kusum. This evidence proves that the appellant and her son and husband were not indifferent to Kusum and after she consumed poison and became ill they took steps to inform parents of Kusum and also took steps to bring her before doctor of Marwari Relief Society Hospital. That telephone of PW 1 was out of order at that time has been established from cross examination of PW 1 who admitted that at the relevant time telephone of his shop as well as telephone of residence were out of order.
15. The evidence of PW 1 and PW 2 including cross-examination reveals that during Kusum’s stay in house of PW 1 she used to receive telephone calls from her in-laws house. Their evidence further reveals that after return to her matrimonial home six months after Kusum used to visit house of PW 1 at an interval of 5/10 days. It also appears from evidence that during stay at 24, Banstola Lane Kusum used to come to house of PW 1, PW 1 also visited 132/1, M.G. Road four times during the stay of Kusum there. It is in evidence of PW 1 that his daughter used to ring them from her matrimonial home as there was telaphone connection between the two families. PW 1 used to exchange greetings and used to talk with the in-laws of his daughter over telephone. Sometimes Kusum came to residence of PW 1 being accompanied by some persons of her in-laws house.
16. We find that PW 1 admitted in evidence that he did not report to police about incident of torture on Kusum by her in-laws. Evidence of PW 2 reveals that after stay at Banstala Lane Kusum was taken to 132/1, M.G. Road and since then till 13the September, 1982 she lived .with her in-laws at their residence. During this period Kusum frequently visited their house. Appreciation of this evidence makes it clear that there was normal relation between the two families and Kusum often used to visit her parents house, she used to talk with her parents over telephone and even visited parents with some members of her in-laws house. (Evidence of PW 1 and PW 2 establishes that they did not report to police about the alleged physical and mental torture on Kusum by the appellant or other in-laws.) No complaint was lodged to police regarding demand of dowry or demand of more money, ornaments etc. There is no evidence that when Kusum was assaulted by the appellant or other in-laws there was complaint to police or any other authority. There is nothing to show that due to such assault she had to be examined by doctor. The evidence is not definite and authentic as to when and on which date the appellant and Indrajit told Kusum that they would be relieved if Kusum dies. It is well-known that general allegations of torture, however strong may be, does not make out any case of abetment to commit suicide. We are constrained to say that evidence led by prosecution is not cogent, convincing and sufficient to establish that the appellant abetted commission of suicide of Kusum.
17. Evidence of Investigating Officer, PW 9 reveals that PW 1 and PW 2 did not tell him that three months after marriage Kusum told them that members of her in-laws house used to perpetrate cruelty on her demanding more money, ornaments etc. and at times she had to remain without food for days together and that Banthias are not good family. His evidence also reveals that PW 1 and PW 2 did not tell him that Kusum complained to them about assault on her by the appellant and Indrajit and that she had to remain in her father-in-law’s room till mid night for massaging legs of father-in-law. Scrutiny of evidence clearly indicates that PW 1 and PW 2 stated about some incidents and circumstances in evidence in Court which they did not state earlier to the Investigating Officer when the Investigating Officer recorded their statement during course of investigation. These discrepancies between evidence and earlier statement to the Investigating Officer clearly indicates that PW 1 and PW 2 have tried to develop the prosecution case by introducing some stories which were not initially stated by them. Tendency of subsequent development and creation of story of inhuman torture on Kusum for generating elements of abetment to commit suicide by Kusum has made the evidence of PW 1 and PW 2 unreliable and untrustworthy. This negatives the prosecution story that the appellant perpetrated torture on Kusum and abetted commission of suicide by Kusum.
18. Though it has been argued by Mr. Kasem All Ahmed appearing for the State that PW 4 is independent and disinterested witness and his evidence proves the torture on deceased Kusum amounting to abetment to commit suicide, we are of the view that this contention is not acceptable to us. His evidence reveals that he used to look into the flat of in-laws of Kusum through the door of verandah and stated that he saw deceased Kusum working in in-laws house upto 2 a.m. at night. He further stated that he often heard this appellant abusing Kusum by filthy languages and asking her to die so that they can get rid of her. His evidence reveals that nothing can be seen inside the flat of in-laws of deceased Kusum, if the door of verandah is closed. It transpired in evidence that Kusum was married in 1980 with Indrajit and being so she was a young wife. Her age appears to be 22 years at the time of death as we find from post mortem report and evidence of PW 8. It is unthinkable that a young couple would keep the door of verandah open till 2 a.m. dead hours of night to be viewed by PW 4 from adjoining flat. If a person of adjoining flat remains awaken till 2.00 a.m. dead hours at night and peeps into the flat of neighbour where a young house wife resides it goes to indicate that the said man is not of a good taste and it is better not to comment further about him. Moreover, evidence of PW 9 reveals that PW 4 did not state to him that he saw Kusum Banthia working almost day and night in her in-laws house and sometimes till 2 a.m. night. This contradiction clearly indicates that PW 4 introduced some facts which he did not utter to the Investigating Officer when his statement was recorded. Evidence of PW 4 has not been corroborated by PW 1 and PW 2 that Kusum had to work till 2 a.m. dead hours of night in her in-laws house. Considering the nature of evidence of PW 4 we are of opinion that he is not a disinterested person and rather he was well-known to the family of Dhanraj Bothra. The manner in which he supposed in Court does not inspire our confidence and we are of the view that PW 4 is not at all reliable and trustworthy witness.
19. Let us now discuss what are the requirements to establish a charge under Section 306 of IPC. Several decisions were placed before us on behalf of both appellant and the State. The appellant relied upon the decisions in the cases of Niharbala Banerjee and Anr. v. The State, reported in 1989 CriLJ NOC 38 (Cal); Smt. Padmabai v. State of Madhya Pradesh, reported in 1987 CriLJ 1573; State of Gujarat v. Sunilkumar Kanaiyatal Jani, reported in 1997 CriLJ 2014; Swami Prahaladas v. State of Madhya Pradesh and Anr., reported in 1995 Suppl(3) SCC 438; Chanchal Kumart and Ors. v. Union Territory, Chandigarh, ; Shri Ram and Anr. v. Stateof Uttar Pradesh, ; Samir Samanta and Anr. v. The State, reported in 1993 CriLJ 134 and Annakali Dutta and Ors. v. State, reported in 1990(II) CHN. Learned advocate for the State placed before us two decisions in the cases of Wazir Chand and Anr. v. State of Haryana, and State of West Bengal v. Orilal
Jaiswal and Anr., reported in 1994 CriLJ 2104. The decision of Wazir Chand’s (supra) case referred to by the learned advocate for the State does not come to the aid of State as the said judgment reveals that the Hon’ble Supreme Court set aside the conviction of husband and in-laws under Section 306 of IPC and the Supreme Court held the husband and father-in-law guilty under Section 498A of IPC. Similarly in the case reported in 1994 CriLJ 2104 (supra) placed by Mr. Ahmed for State shows that the Supreme Court acquitted the accused persons in respect of the charge under Section 306 of IPC. In these two decisions relied on by the respondent State facts and circumstances were completely different from facts and circumstances of present case.
20. From the decisions placed before us by the learned advocate for the appellant the law is clear that in order to establish a charge under Section 306 of IPC the following elements must be fulfilled as laid down by a Division Bench of this High Court in Niharbala Banerjee’s case (supra):
“In order to amount to abetment there must be means rea or community of intention. Without knowledge or intention there can be no abetment and the knowledge and intention must relate to the crime an the assistance must be something proximate and something more than a mere passive acquiescence. The mere fact that the deceased wife was treated by the accused husband and her mother-in-law with cruelty is not sufficient to prove that the accused abetted commission of suicide by the deceased. In the absence of proof of any direct or indirect acts of incitement to the commission of suicide or a conspiracy or any act facilitating the commission of suicide it cannot be said that the accused were guilty of abetment to commission of suicide by the deceased merely because they treated the deceased with cruelty. The definition of abetment in Section 107 of the Penal Code includes not merely instigation which is the normal form of abetment but also conspiracy and intentional aiding. In order that there may be abetment, there must be either instigation or intentional aiding or engaging in a conspiracy as laid down in this section. The word “instigate” literally means to goad or urge forward or to provoke, incite, urge or encourage to do an act, by usage now an evil act.”
21. Another Division Bench of this Court in Samir Samanta’s case (supra) observed that “The Court in having recourse to the presumption observed that “The Court in having recourse to the presumption under Section 113A of the Evidence Act must be Circumspect. The legislative mandate of that section is that where a woman commits suicide within seven years of marriage and it is shown that her husband or any relative of her husband had subjected her to cruelty as the terms has been defined in Section 498A, IPC the Court may presume, having regard to all the other circumstances of the case that such suicide had been abetted by such person. It is evident that the legislature was extremely careful in drafting the provisions of Section 113A of the Evidence Act. Had it been the intention of the legislature that the Court should in all cases jump upon a conclusion as a rule that there has been abetment of suicide simply because suicide has been committed by the woman within seven years of marriage and she was subjected to cruelty, the legislature would not have used such flexible expression as “the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband..”. The expression used is ‘may presume’ and not that rigid as ‘shall presume’. In view of Section 4 of the Evidence Act, the import of the expression ‘may presume’ is that the Court may either regard the fact in question as proved, unless and until it is disproved, or may call for proof of it. In Section 113A of the Evidence Act, the legislature in its wisdom did not leave it at that by using the expression ‘may presume’ alone, but has supplemented the same by using the further expression “having regard to all the other circumstances of the case” which casts a positive responsibility on the Court to take into consideration all the other circumstances of the case also, namely the circumstances which may be there besides the two basic circumstances mentioned in the section itself which are suicide within seven years of marriage and proof of cruelty, in deciding whether the presumption of abetment of suicide should be drawn in a particular case from the proof of cruelty which itself is separately punishable under Section 498A IPC”.
22. There is no need of quoting observations of all the above stated reported cases referred to by the learned advocate for appellant to make the matter lengthy and dull. It would be worthwhile if we quote few lines from the judgment of Madhya Pradesh High Court reported in Padmabai’s case (supra) where it was observed that “It is of the essence of the crime of abetment of suicide that the abettor should be proved to have substantially assisted in the commission of the offence of suicide. Investigation, incitement, provocation, encouragement, insinuation, solicitation, which words connote different meanings are, no doubt, some of the acts, which may constitute an ‘abetment’ for commission of suicide. But all such acts or any of them have to be positive and potent in nature, of such a degree, that the direct result of such acts may be none other, but the commission of suicide. Stray domestic quarrels, perfunctory abuses by mother-in-law, to her daughter-in-law in the Indian society, crude and uncultured behaviour by the in-laws or the husband towards his wife being mundane matters of normal occurrence in the traditional joint Hindu families, will not go to form and constitute ‘abetment’ unless these acts or conduct singly or cumulatively, are found to be of such formidable and compelling nature as may lead to the commission of suicide or may lead to the commission of suicide or may facilitate in a singular and prime manner, the commission of the same”.
23. Analysing the evidence of witnesses we find that deceased Kusum came to her parents house on 13.9.1982 and she returned back to her in-laws house on 14.9.1982 at about 10.30 p.m. and she committed suicide on 15.9.1982 by consuming poison towards noon. There is nothing in evidence that on 13.9.1982 or 14.9.1982 or 15.9.1982 this appellant did such act or uttered such things which was so formidable and compelling in nature that lead to the commission of suicide. We have already observed that except general or casual remark of torture on Kusum by the appellant demanding more money, ornaments etc. there is no particular evidence as to quantum of money, ornaments etc. demanded by the appellant or the months and dates on which such demand was made. Rather it transpires that deceased Kusum was in visiting terms to her parents house off and on after a gap of 5/10 days and sometimes members of her in-laws accompanied her to her parents house. The evidence also established a fact that he often used to talk with her parents over telephone and evidence of PW 1 and PW 2 is silent that over phone Kusum ever informed them about torture on her.
24. In a joint family of Indian society domestic quarrel, between a wife and her husband or in-laws, difference of opinion between the daughter-in-law and her mother-in-law or father-in-law, between wife and husband are natural and expected, but these circumstances are not sufficient so as to constitute abetment to commit suicide unless there is strong and cogent evidence that act or conduct of in-laws or husband either singly or cumulatively were of such formidable and compelling nature which lead to the commission of suicide. Stray domestic quarrels, perfunctory abuses by mother-in-law to daughter-in-law in Indian society is common and such incidence cannot be denied. There may be some indecent and uncultured behaviour by the in-laws or the husband towards the wife and these are normal incidence or occurrence in traditional joint Hindu family. Unfortunately in the instant case we did not find any such evidence to show that the acts or conduct either singly or cumulatively of the appellant was of such formidable and compelling nature which lead to the commission of suicide by Kusum.
25. On the other hand, from evidence we find that absence of Indrajit, husband of Kusum in the dinner on the night of 14.9.1982 was a talk amongst the guests. PW 1 stated that Kusum was mentally hurt as Indrajit did not attend dinner on the night of 14th September, 1982 at his residence. Thereafter, Kusum left his residence on 14.9.1982 at about 10.30 p.m. and it is admitted that on the next day she committed suicide. Evidence of PW 1 and PW 2 reveals that Indrajit, husband of Kusum did not use to visit his in-laws house i.e. house of parents of Kusum. It was a known fact to Kusum that her husband does not attend any function or ceremony in her parents house. Therefore, absence of Indrajit at the dinner on the night of 14.9.1982 cannot be a ground sufficient to cause abetment to commit suicide. There may be many instances where a wife may feel hurt by the conduct of her husband and mother-in-law but these are not sufficient to commit suicide by the wife and such incident of conduct of husband or mother-in-law causing hurt to the wife resulting ultimate suicide of the wife cannot be regarded as abetment to commit suicide.
26. The evidence which the prosecution could introduce before the Court was not sufficient at all to prove abetment by the appellant in the commission of suicide by deceased Kusum. There is no evidence of any act or conduct of appellant to establish direct nexus or close in proximity prior to the suicide sufficient to establish abetment by appellant. There is no evidence at all as well as circumstance to prove that the appellant assisted in the commission of the offence of suicide by her active suggestion, solicitation, insinuation or encouragement. There is also no evidence that incitement, provocation, encouragement etc. were given by the appellant and all such acts or any of them was positive in nature or of such a degree that the outcome of such act was none other but commission of suicide. General allegations of torture by the husband, father-in-law, mother-in-law etc. on the married wife or torture or teasing the newly married wife demanding dowry, more ornaments, articles etc. may be elements of other offence, namely, under Section 498A of IPC, but such general allegations of torture is not sufficient at all to prove abetment by the accused appellant in the commission of suicide by deceased Kusum. We find that the prosecution has failed to bring home the charge under Section 306/34 of IPC against the appellant and conviction of the appellant under Section 306/34 of IPC cannot be allowed to stand. Accordingly, the conviction and sentence under Section 306/34 of IPC imposed upon the appellant is set aside.
27. Before conclusion we must observe that the investigation was not conducted by PW 9 in a fair manner. It appears from his evidence that he examined some of the inmates of that five storied building i.e. of 132/1. M.G. Road but did not record their statement. Ramu was a servant in the flat of appellant but PW 9 did not record his statement nor he recorded the statement of the Darwans of the said building. Though he. went to 134, M.G. Road and recorded statement of PW 4 Mohon Bhiwaniwala, but did not examine his wife or other members of his family. It further transpires that he did not go to 24, Banstala Lane and did not examine any occupier of that building to ascertain how deceased Kusum and her husband Indrajit Banthia spent their life and how their relation was there for about two months. It is also clear that he did not examine Manik Chand Banthia, Kamal Singh Bhutoria and Mohan Lal Mohta to whom it transpires that PW 1 contacted several times for settlement of dispute concerning his daughter Kusum. It also appears that he did not make any investigation regarding incident, if any, which happened in the house of Dhanraj Bothra on 13.9.1982 and 14.9.1982. He even did not visit house of Dhanraj Bothra (PW 1} for the purpose of investigation. Investigation of a case does not indicate that the Investigating Officer will record statement of witnesses only who were supporting the FIR story. Purpose of investigation is to find out truth behind the incident and the story revealed in the FIR and in order to find out truth it is the duty of the Investigating Officer to visit all probable places where the deceased spent time and to examine the witnesses including independent witnesses of places of stay and visit of deceased.
28. The appeal thus stands allowed and the appellant is acquitted of the charge under Section 306/34 of IPC. The appellant who is on bail is hereby discharged from her bail bonds.
Send down the lower Court records along with the copy of judgment to the learned Court below for information and necessary action.
Urgent xerox certified copy be given to the parties, if applied for, expeditiously.
A. Talukdar, J.
I agree.
