Tapan Kumar Panja Vs. the State of West Bengal - Court Judgment

S.P. Talukdar, J.

1. One Gour Hari Patra lodged a written complaint before the Officer-in-Charge, Daspur Police Station alleging therein that his daughter, Kajal @ Radharani, was subjected to torture by her husband and parents-in-law within a few days of her marriage, which took place on 14th of Asar 1389 B.S. Being unable to bear with such physical and mental torture, she used to come back to her father's house every now and then. After she finally left her in law's place, her husband, Tapan, forcibly took her from a cinema hall, named, 'Sarala' on 14th of May, 1985. After taking to their place they inflicted further torture upon her. On the next morning, she committed suicide at her husband's place by consuming poison.

2. On the basis of such written complaint, the police authority started Daspur P.S. Case No. 4 dated 24th August, 1985 under Sections 498A/306 of I.P.C. After completion of investigation, charge sheet was submitted. The case was, thereafter, committed to the learned Court of Sessions. Learned Trial Court on the basis of relevant materials framed charge under Section 306 of I.P.C. and under Section 498A of I.P.C. against the husband of the alleged victim, being the present appellant.

3. Prosecution in order to establish the charge examined as many as eight witnesses in this case.

4. Defence case, as it appears from the trend of cross-examination and the statements made during examination under Section 313 of Cr.P.C., is the denial of the prosecution allegations and the plea of innocence.

5. The appellant/accused in response to the questions placed before him during such examination under Section 313 of Cr. P.C. claimed that few days prior to the date of actual occurrence, the victim ran away from her in-law's house. On being asked, his father in law said that she was in the house of the husband of her sister. The appellant met her there and his wife, Kajal, refused to come back to his place. He was told by his father in law that she, however, may be taken back from the 'Sarala' cinema hall where his father-in-law would arrange to send her. His wife came to her in law's house from the said cinema hall and on the next morning, she was found tossing around and there was a pot of poison lying beside her. He called doctor. After sometime, his wife expired. He duly sent the information to the house of his father-in-law.

6. The defence did not, however, examine any witness on its behalf.

7. Of the eight witnesses examined on behalf of the prosecution, P.W. 1 is the father of the victim, P.W. 2 and P.W. 4 are her sisters and P.W. 3 is her mother. P.W. 5 is a resident of the locality, who had a 'drug licence'. P.W. 6 is also local person, P.W. 7 is the doctor, who conducted post mortem examination and P.W. 8 is the Investigating Officer.

8. P.W. 1 in his evidence in chief sought to corroborate the allegations as made in the written complaint, which being proved by him had been marked exhibit-1. In his evidence in chief, he stated that his daughter, Kajalrani @ Radharani, being the victim, got married to the accused, Tapan Panja, 4/5 years prior to his deposing in Court. Within two months of her marriage, she was subjected to torture by the members of her in law's family. P.W. 1 deposed that being unable to bear with such torture, his daughter left her in law's place within one year of her marriage. She was forcibly taken away from the cinema hall by the accused person and on the next morning, P.W. 1 got the information that she died after consuming poison. In his cross-examination, P.W. 1 stated that his eldest daughter, namely, Krishna, was lame whereas her husband was fairly good looking. He admitted that both of them used to love Kajal. P.W. 1 denied that he accompanied accused, Tapan to Krishna's house or that he assured him that she would be sent to 'Sarala' cinema hall from where she could be picked up. P.W. 1 in his cross-examination denied that his daughter, Kajal, committed suicide by consuming poison but, according to him, she was murdered. He further stated that he mentioned the names of Lata and Champa in the complaint.

9. P.W. 2 in her evidence in chief claimed that she accompanied Kajal and Lata to 'Sarala' cinema hall for watching a film. At about 5 p.m. while they were coming out of the hall, the accused asked Kajal to go with him. They resisted but the accused abused them in filthy language. He thereafter dragged Kajal to his house. In her cross-examination, she stated that there were many people at that time when Kajal was being forcibly dragged away by the accused, Tapan. P.W. 2, however, clearly stated that Kajal committed suicide by taking poison.

10. P.W. 4 virtually echoed the evidence of P.W. 2. In her cross-examination, she added that accused slapped Kajal mercilessly on various parts of the body. Many people were present there and some of them resisted to some extent. P.W. 4, however, stated that she did not mention all these to the Investigation Officer.

11. Prosecution sought to derive further support from the evidence of P.W. 3, who is the mother of the victim. P.W. 5 went to the house of the accused person after receiving a call from there. He rushed and advised for hospitalization of the patient. He also administered saline. P.W. 5 further stated that he found a container of poison on the verandah.

12. P.W. 6 was declared hostile by the prosecution. In his cross-examination by the prosecution, he stated that he was present on 16.5.1985 when I.O. came for investigation. He identified his signature in the seizure list.

13. P.W. 7 is the doctor, who examined the victim on 16.8.1985 and that was in connection with Daspur P.S. U.D. Case No. 56 dated 15.8.1985. He opined that the cause of death was due to consumption of poison. In cross-examination, he admitted that he did not mention the cause of death in the report.

14. P.W. 8 is the Investigating Officer, who stated that an U.D. case was started on the complaint of Gourhari Patra on 15.8.1985. A written complaint was, however, received from Gourhari Patra on 24.8.1985 and on the basis of the same, Daspur P.S. Case No. 4 dated 24.8.1985 was started. P.W. 8 in his evidence in chief disclosed the various steps taken by him in course of investigation. Referring to P.W. 6, such P.W. 8 in cross-examination stated that he examined him on 11.9.1985 and he stated that on 14.8.1985, Tapan dragged his wife in front of the cinema hall and two other women were present at the spot.

15. Learned Trial Court after due consideration of all relevant facts and materials and the evidence on record found the appellant guilty of the offences under Section 498A and Section 306 of I.P.C.

16. The said judgment and order of conviction and sentence had been assailed on the ground that learned Trial Court failed to appreciate the materials on record in the proper perspective. It was submitted on behalf of the appellant that there had been no complaint of any maltreatment or torture upon the victim lady at any point of time prior to her death. The written complaint, which had been treated as FIR, does not disclose that the victim lady went to see the film in the company of her sisters, namely, Lata Rani Roy (P.W. 4) and Champa Patra (P.W.2). P.W. 1 admitted in his evidence that the appellant came to his house to enquire about the victim and he was assured that Kajal would be sent back to her matrimonial home.

17. According to learned Counsel for the appellant, evidence of P.W. 2 is not reliable since she did not state before the I.O. that Kajal was denied food at her matrimonial home or that she left her matrimonial home two years back. She did not make any statement before the police that after returning from the cinema hall, she narrated the incident to her parents. Evidence of P.W. 3 was sought to be assailed on the ground she was never examined by the Investigating Officer.

18. Attention of the Court was invited to her evidence that she did not make any statement to the Investigating Officer about any ill-treatment inflicted on her daughter.

19. Learned Trial Court in an answer to the question as to how far the prosecution could discharge the onus of proving the case made the following observation:

Normally the prosecution has to prove three points in such case. They are-

First - cruelty on the bride,

Secondly - she committed suicide and

Thirdly - it was abetted by the husband-accused.

The onus did not shift but law has been changed to some extent from this point for insertion of the amended Section 113A of the Evidence Act. When the prosecution proves suicide within a period from seven years of marriage ceremony and cruelty committed by the husband or his relation the court may presume that suicide was abetted. The change in law is very significant. The cruelty referred to above provision of law need not be proximate to the event of suicide. A general treatment of cruelty would be enough. In a sense, it modifies, the law under Section 32(1) of the Evidence Act which permits statements of a deceased person only of such circumstances as resulted in death. Here, any statement of the victim made at any time about the cruel treatment can be accepted so as to consider if the case comes within the scope of Section 113A of the Evidence Act....

20. Learned Trial Court further observed:

The old conception of burden of proof in criminal case has significantly shifted when it concerns the question of suicide by a bride. Indeed the accused may from the evidence led by the prosecution discharge the onus without leading evidence....

21. Learned Trial Court appears to have found that the defence failed to rebut the presumption. Learned Counsel for the appellant assailed the said observations on the ground that the same suffer from fantastically precise misconception.

22. Learned Counsel for the appellant, referring to the materials on record, submitted that the prosecution could not offer any satisfactory explanation for delay of about 10 days in filing of the complaint. Inviting attention of the Court to the said complaint, Exhibit-1, it was submitted that there is no reference of P.W. 2 and P.W. 4 in it. It was further submitted that the purported general diary in connection with the U.D. case or inquest report, if any, were not before the learned Court.

23. Referring to Section 11 of the Evidence Act, it was then submitted that non-mentioning of the fact that P.W. 2 and P.W. 4 were with the victim in the afternoon preceding the morning of her committing suicide strikes the prosecution case at its root.

24. On the other hand, Ms. Biswas, appearing as learned Counsel for the State, referred to Section 113A of the Indian Evidence Act and submitted that the evidence of P.W. 1, P.W. 2 and P.W. 4 could very well establish the prosecution case. She submitted that there was no compulsion for having a chemical report in every case and this always depends on the particular facts and circumstances of a case.

25. She referred to the decision of the Apex Court in the case between Ananda Mohan Sen and Anr. v. State of W.B. as reported in (2007) 3 SCC (Cri) 678.

26. Mr. Sekhar Basu, learned Counsel appearing for the appellant, submitted that the mere fact that a woman committed suicide within seven years of her marriage and that she had been subjected to cruelty by her husband or any relative of her husband, does not automatically give rise to the presumption that the suicide had been abetted by her husband or any relative of her husband. In this context, Mr. Basu referred to the decision of the Apex Court in the case between Rajbabu and Anr. v. State of M.P. as reported in 2008 (5) Supreme 666. The Apex Court in the said case held that 'the court is required to look into all the other circumstances of the case. One of the circumstances which has to be considered by the court is whether the alleged cruelty was of such nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman.'

27. The Apex Court in the said case referred to an earlier decision in the case between Ramesh Kumar v. State of Chhattisgarh as reported in : (2001) 9 SCC 618. Deriving support from the same, Mr. Basu contended that the expression - 'the other circumstances of the case' used in Section 113A suggests the need to reach a cause-and-effect relationship between the cruelty and the suicide for the purpose of raising a presumption. It also cannot be denied that in spite of a presumption having been raised, the facts and circumstances otherwise available on record may destroy the presumption.

28. Significantly enough, the phrase 'may presume' used in Section 113A is defined in Section 4 of the Evidence Act and the same reads:

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.

29. The Apex Court in the case of Rajbabu (Supra) also relied upon the earlier case of State of W.B. v. Orilal Jaiswal : (1994) 1 SCC 73.

30. Reference was made to the observation of Lord Denning in Bater v. Bater (1950) 2 All ER 458 that the doubt must be of a reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject-matter. There is, in fact, no absolute standard for proof in a criminal trial and how far the charge could be proved beyond reasonable doubt always depends upon the facts and circumstances of the case and the quality of the evidence on record.

31. Deriving inspiration from the decision in the case between State of Andhra Pradesh v. M. Madhusudhan Rao as reported in (2008) 15 SCC 582, Mr. Basu submitted that for the purpose of Section 498A, harassment simpliciter is not 'cruelty' and it is only when harassment is committed for the purpose of coercing a woman or any other person related to her to meet an unlawful demand for property, etc. that it amounts to 'cruelty' punishable under Section 498A of I.P.C.

32. Inviting attention of the Court to the Apex Court decision in the case between Sohan Raj Sharma v. State of Haryana as reported in : (2008) 11 SCC 215, Mr. Basu submitted the word 'instigate' in Section 107 of the Indian Evidence Act, which defines abetment of a thing, means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section 107 of the I.P.C.

33. Referring to another decision of the Apex Court in the case between Mahendra Singh and Anr. v. State of M.P. as reported ion : 1995 Supp (3) SCC 731, Mr. Basu submitted that conviction for abetment of suicide merely on the allegation of harassment to the deceased cannot be sustained.

34. Learned Counsel for the appellant submitted that the FIR, Exhibit-1, suffers from inherent hollowness and it cannot inspire confidence of the Court.

35. Relying upon the decision in the case between Ram Kumar Pandey v. State of Madhya Pradesh as reported in 1975 SCC (Cri) 225, Mr. Basu submitted that an FIR is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it.

36. But in the present case, such FIR was made quite a few days after the alleged incident and there could be no explanation worth mentioning as to how could it be without any reference to the presence of P.W. 2 and P.W. 4 at the time of taking away of the victim lady by the accused person from near 'Sarala' cinema hall.

37. So far the evidence on record in the present case is concerned, there is no direct evidence of any mal-treatment or torture upon the victim girl by her husband or members of his family. No doubt, it is difficult to get direct evidence of such nature since such maltreatment or torture ordinarily takes place within the walls of the in-law's house. This is ordinarily not permitted to be leaked out for consumption of neighbours or others. But this, by itself, cannot justify the dilution of the need to establish such mal-treatment or torture and that too, in pursuant to any demand of dowry.

38. There is hardly any evidence worth mentioning in this regard. There is no specific mention of any date on which the victim girl was tortured at her matrimonial house and that being unable to bear with such torture, she came out of her matrimonial home and took shelter in her father's house. Evidence of P.W. 1 is far too vague and P.W. 2 and P.W. 4 could not really go far to heal up such latent wound. It remains unanswered as to how could the accused forcibly drag away the victim from a public place and without any active resistance of members of the public or P.W. 2 and P.W. 4, the sisters of the victim lady.

39. The victim girl committed suicide by consuming poison and there is no reason to doubt or dispute the said tragic event. But the question is how far the prosecution evidence could establish that she committed suicide by consuming poison being unable to bear with any mal-treatment or torture. In absence of any material to the satisfaction of the judicial conscience of the Court, it is difficult to hold that there could be any presumption against the accused appellant.

40. True, credibility of testimony depends on evaluation of the totality and not isolated scrutiny. It cannot be denied that marginal mistakes and minor discrepancies cannot demolish a prosecution case. It also cannot be denied that truth may sometime suffer from infirmity when projected through human process.

41. But so far the present case is concerned, taking into consideration the entire evidence on record, I find it difficult to brush aside the grievances, as ventilated on behalf of the appellant. Accordingly, I cannot agree with the findings of the learned Trial Court.

42. Thus, the instant appeal, being C.R.A. No. 243 of 1987 be allowed. The judgment and order 19th May, 1987 passed by the learned Trial Court in connection with Sessions Trial No. XXII of August, 1986 be accordingly set aside. The appellant/convict be acquitted accordingly and be set free at once. He be released from his bail bonds.

43. Send a copy of this judgment along with the LCR to the learned Trial Court for information and necessary action.

44. Criminal department is directed to supply certified copy of this judgment, if applied for, to the learned Court for both parties as expeditiously as possible.