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Kripa Nath Ganguly & Dibanath Ganguly Vs. State Of West Bengal

Judgement

 

Court:Calcutta High Court

Bench: JUSTICES Tapan Sen & Mrinal Kanti Sinha

Kripa Nath Ganguly & Dibanath Ganguly Vs. State of West Bengal On 24 July 2013

Law Point:
Indian Penal Code, 1860 — Sections 498A, 306, 34 — Cruelty — Abetment of Suicide — Common Intention — Prosecution case not proved by sufficient reliable evidence beyond all reasonable doubt — Probability of defence that deceased committed suicide out of frustration and mental depression as psychiatric patient as she being married lady had no child — Trial Court was not correct and justified in convicting and sentencing appellants for offence under Sections 498A, 306 and 34, IPC — Conviction and sentence passed by ASJ set aside — Appellants are acquitted of offences and set at liberty.

 

 

JUDGEMENT

 

1. This criminal appeal has been directed against the Judgment and Order dated 26.8.2002 and 27.8.2002 passed by Sri. M.K. Chaudhuri, W.B.H.J.S., Additional Sessions Judge, 3rd Court, Howrah in Sessions Trial No. LIV (JANUARY) 1998 convicting the appellants under Sections 498A/34 and 306/34 of the Indian Penal Code, and sentencing them to suffer rigorous imprisonment for three years and to pay a fine of Rs. l0,000 each for the offence under Sections 498A/34 of the Indian Penal Code, in default of payment of fine to undergo simple imprisonment for six months and to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 10,000 each for the offence under Sections 306/34 of the Indian Penal Code and in default of payment of fine to simple imprisonment for one year and the substantive sentences must run concurrently and the amount of fine, if realized is to be paid to the de facto complainant Satyen Mondal, his brother Shib Sankar Mondal and their sister Smt. Krishna Das towards their compensation.

2. The prosecution case, in short, is this that the victim Jharna Ganguli was married with the accused Kripanath Ganguly on 2.3.1982 and after marriage she was living with her husband, Kripanath’s mother Labanya Ganguly and Kripanath’s brother Dibanath Ganguly in the same family. The appellant Kripanath used to torture upon the victim Jharna both mentally and physically. The victim was a primary school teacher at Ranihati Lal Mohan Kolay Primary School. Due to torture of her mother-in-law, the victim Jharna shifted to a rented house near Chatterjee Hat outpost. At that time Kripanath’s earning was not good. Kripanath’s brother had also no income and their family was dependent upon the income of victim Jharna. Kripanath and his brother never protested to the torture upon victim Jharna by her mother-in-law, rather they supported their mother and used to blame Jharna. While residing there Kripanath frequently used to come his mother’s house leaving Jharna alone in the said rented house. Kripanath, his mother and brother used to torture upon Jharna demanding more dowry. Jharna used to bear their torture somehow but she was becoming sick gradually. About six years after Kripanath got a service in the Health Centre of Udaynarayanpur and then their family lived peacefully. Jharna used to attend her school at Ranihati from Pancharul, and later on Kripanath was transferred to Howrah General Hospital, but for about eight years the family of Kripanath was being maintained with the money of Jharna. In spite of that the mental and physical torture upon Jharna was enhanced and Jharna used to disclose the torture upon her to the informant party. Ultimately on 12.10.1990 at 9.30 p.m. Kripanath was standing near the house of the informant and was looking for someone and when the informant’s brother was coming to take water from the tap by bucket, then Kripanath called on him and silently told him that his elder sister has hanged by rope and he was going to police station for giving intimation there and saying this Kripanath left that place. The informant’s brother at once went to his sister’s house and found her in hanging condition and for that reason the written complaint was lodged by the informant at the police station on 13.10.1990.

3. After receipt of the written complaint G.R. Case No. 2424 of 1990 was started. Police investigated into the case and submitted charge-sheet against the accused persons. Thereafter the case was committed to the learned Sessions Court. On perusal of the materials on record charges under Sections 498A/306/34 of the Indian Penal Code were framed against the accused persons. The charges were read over and explained to the accused persons, who pleaded not guilty and claimed to be tried.

4. In support of its case the prosecution examined as many as 18 witnesses and submitted some documents which were marked Exhibits. 1 to 9 and MAT Exhibit-1 collectively. Thereafter, the accused persons were examined under Section 313 of the Code of Criminal Procedure. The defence case appears to be the denial of the prosecution case with a plea of innocence and out of her own will Jharna committed suicide as a psychiatric patient as no child was born to her. No defence-witness was examined nor any document was filed by the defence.

5. The learned Trial Court after taking evidence and hearing arguments of the parties passed the aforesaid Judgment and Order convicting the accused persons under Sections 498A/306/34 of the Indian Penal Code and sentenced them in the above noted manner.

6. It is to be considered whether the learned Trial Court was legally correct and justified in passing the aforesaid judgment and Order of conviction and sentence against the present appellants or not.

7. Learned Counsel appearing on behalf of the appellant has contended that the Judgment and Order of conviction and sentence in the said case is against the weight of evidence on record and is bad in law and the learned Judge has illegally relied upon illegal evidence and has based his judgment on surmise and conjecture and so the same is liable to be set aside. Learned Counsel for the appellants has further submitted that the learned Trial Judge has not considered the case of the defence in its proper perspective which has caused serious prejudice to the appellants and has resulted in total miscarriage of justice and the omnibus allegations of torture upon the deceased Jharna as stated by her near relatives like P.Ws. 1, 5, 11 and 15 were never stated prior to incident of 12.10.1990 though the marriage between Jharna and the appellant Kripanath took place on 2.3.1982 as per her own choice, which was not a negotiated marriage, and so there was no question of demanding dowry, and as Jharna as a school teacher had to pay her entire salary income to the appellants and initially Kripanath was unemployed and got job about six years after marriage. So, there was no question of demanding dowry or torture for non-payment of the same and this fact belies prosecution stories of torture and cruelty upon Jharna by the appellants and their mother Labanya Ganguly, since deceased, because of demand of dowry.

8. Learned Counsel for the appellants has further contended that as per the evidence of the Investigating Officer, P.W.18, on 12.10.1990 a U.D. case bearing case No. 45 was started on the basis of information lodged by the appellant Kripanath and as such the FIR lodged by the P.W.1 on 13.10.1990 was a statement recorded during the course of investigation and as such hit by the provisions of Section 162 of the Code of Criminal Procedure, 1973.

9. Learned Counsel for the appellants has further contended that as per the evidence of P.W.10 Jharna told her that due to absence or lack of normal relation no issue was born during their conjugal life and as per the evidence the P.W.15, a homeopathic physician, Jharna performed “Manat” by drawing “Gandi” from Ramkrishnapur Ghat to a “Shani Temple” and the body of any female become weaker due to discharge of white menstrual discharge, the disease from which Jharna was suffering and treated by Dr. A.K. Nandy on 7.11.1984 and Jharna was also treated by another homeopathic physician named Dr. Kalipada Pyne who medically treated Jharna and prescribed medicine No. 4 named ‘Aurum Metallicum’, which is applied only in case of patient’s suicidal tendency or depression of mind, and as Jharna had no child and there was no prospect of bearing child in future due to her disease so Jharna committed suicide out of her own accord and for that reason the present appellants cannot be held liable for her suicide nor their conviction and sentence was justified on that ground. It has also been pointed by the learned Counsel for the appellants that at the time of holding inquest mother of Kripanath Ganguly told the police officer concerned that Jharna died due to her mental stress as no child was born to her and both Kripanath and his mother were present at the time of holding inquest and they also helped in taking down the dead body as per the inquest report and they did not flee away and Kripanath informed the matter to the informant party and at the police station regarding committing of suicide by Jharna by hanging and these circumstances also prove the innocence of the appellants and their mother. P.W. 13 was not also certain and definite that the death of Jharna was homicidal in nature as he opined that the death was homicidal in nature ‘unless proved otherwise from the circumstantial evidences’ and so there was scope for proving by circumstantial evidence that death was caused otherwise.

10. Learned Counsel for the appellant has further contended that there is no explanation of delay in lodging the FIR, no dying declaration or suicidal note, no letter regarding torture during subsistence of marriage, no complaint by father or mother of the victim and no specific date when the deceased was tortured by her husband and his relatives, which was stated to relatives of deceased’s father’s house, and there was no complaint in that regard either at the P.S. or in the Court.

11. On the other hand, the learned Counsel for the State has argued that the prosecution case has fully been supported and established by the evidence of the P.Ws., who have stated about the torture upon the deceased by her husband, husband’s mother, and brother, at the instigation and abetment of whom the deceased died by hanging and the medical evidence has also fully supported the prosecution case and for that reason order of conviction and sentence passed by the learned Trial Court in the said Sessions case suffers from no infirmity and that has rightly been passed.

12. To prove its case the prosecution examined as many as 18 P.Ws. out of whom P.Ws. 1, 5, 11 and 15 are the near relatives of the deceased Jharna, P.Ws. 2, 3, 6, 7, 12 are their neighbours, P.Ws. 4 and 16 are witnesses of inquest. P.Ws. 8, 9 and 10 were friends of said Jharna. P.Ws. 9 and 10 are her colleague teachers. P.W. 13 is the medical officer who held post-mortem examination of the dead body of said Jharna. P.W. 14 is the near by club member, and P.Ws. 17 and 18 are police officers or Investigating Officers.

13. It appears that P.W.1 Satyen Mondal, the de facto complainant of the case, has deposed that Jharna was his elder sister and she was married with Kripanath Ganguly on 2.3.1982 and after marriage his elder sister used to live in the house of the Kripanath Ganguly and then accused persons used to torture upon her and in spite of meeting their demand of cash, cycle and other articles, torture was not stopped upon her, but he has also deposed that they did not lodge any complaint to police regarding demand of dowry after her marriage and no petition was filed in the Court under Dowry Prohibition Act, and it also appears from his evidence that on 12.10.1990 at 9 p.m. his youngest cousin brother informed him that his elder sister hanged herself and then he went to the house of his elder sister and found that she was in hanging condition and on 12.10.1990 at 10 p.m. he saw police in the house of Kripanath, but he did not make any statement to police at the relevant time, and on 13.10.1990 he went to the police station at 1 a.m. in the night with dead body of his elder sister, but he told police that he cannot submit any complaint due to his mental disturbance and he will lodge complaint after consultation with the members of his relatives and on that day morning at 9.30/10 a.m. he put his signature in the written complaint, which was written by Bikash Sengupta as per his instruction, but said Bikash Sengupta has not been examined in the said case.

14. P.W.2 has deposed that on 12.10.1990 he went to the house of the Kripanath in the evening after hearing hue and cry and signed on the seizure list but he cannot tell the accurate time of preparation of the seizure list and he found that the dead body was lying on the ground but he cannot tell the specific place of injury in the body of the deceased.

15. P.W.3 was in the club room in the evening on 12.10.1990 when they were informed by the mother of Kripanath that her “Bouma” was found hanging but he did not hear any specific utterance of the mother of Kripanath at the time of quarrel when he passed over the road and he cannot say why Jharna committed suicide by hanging and though as per evidence of P.W.2 police removed the dead body from the house of the accused persons on 12.10.1990 at about 8.30/9 p.m., yet as per the evidence of P.W.3 on that day at about 11.30/12 p.m. police removed the dead body from the house of Kripanath Ganguly.

16. P.W.4 found Jharna was hanging from the ceiling of bamboo with a cloth in her neck and he heard there that Jharna committed suicide, and she was inflicted torture by the inmates of her father-in-law’s house and he has only put his signature on the inquest report but the version of the inquest report is otherwise.

17. As per the evidence of P.W.5 Jharna was his niece, who was married with Kripanath Gangluly on 2.3.1982 out of love and she used to hand over her entire salary as a school teacher to her mother-in-law and the entire family of Kripanath was dependent upon the income of Jharna. In that case it is not believable that still then the appellants and their mother used to inflict mental and physical torture upon Jharna. P.W.5 has also deposed that on 12.10.1990 at 9.30 p.m. they heard from her son that Jharna committed suicide by hanging and going to the house of Kripanath they found that the dead body of Jharna was lying on the floor, and she has only denied the defence suggestions that as per inquest report Jharna committed suicide as no issue was born to her and the appellants have falsely been implicated in this case as per instructions of Police.

18. P.W.6 has deposed that on 12.10.1990 in the morning when he was passing through the road by the side of the house of the accused persons, then heard shout, but he did not tell police that he heard quarrel in the evening of that date and in the evening he heard that Kripanath’s wife died by hanging and so his evidence is hearsay.

19. P.W.7 has deposed that local boys informed him that wife of Kripanath hanged by rope, but he cannot say the names of those local boys.

20. P.W.8 cannot say how Jharna died and he has been declared hostile by the prosecution.

21. P.W.9 has deposed that the appellants used to tell Jharna that they would hang her, but he cannot say the date, month and year when they told that and he did not lodge any complaint before Panchayat or at the P.S. as he heard that her husband inflicted torture upon her.

22. P.W.10 has deposed that one year after her marriage the appellants and their mother inflicated torture upon Jharna, but she did not lodge any complaint at the P.S. and Panchayat, and Jharna also told her that due to absence or lack of normal relation no issue was born during their conjugal life and this evidence brings a probability of the defence case.

23. P.W.11 has deposed that Kripanath, his mother and brother used to torture his sister Jharna and he used to go to the house of Jharna once or twice in a week, but she cannot tell the total number of rooms in the house of Kripanath during 1982, though he is the brother of Jharna and used to go to Jharna’s house, and he entered into the room of Kripanath, thereafter came out and became senseless.

24. P.W.12 has deposed that the accused persons did not behave well towards Jharna and on 12.10.1990 Kripanath’s mother requested her to come to her house and when she went there then Kripanath’s mother told her that her ‘Bouma’ committed suicide by hanging, but she did not tell anyone that Kripanath’s wife told her that she had been inflicted torture and assault by the inmates of Kripanath and Kripanath’s house had six rooms, though as per the evidence of P.W. 1 there were two rooms.

25. P.W. 13 is the Medical Officer, who held post-mortem examination over the dead body of Jharna Ganguly on 13.10.1990 and found one haematoma on her right cheek, one haematoma over her left scapula, one non-contiguous ligature mark around her neck above thyroid cartilage and multiple haematoma over interior surface of both thighs, and in his opinion said death was ante mortem and homicidal in nature, but he has also deposed that in absence of asphyxia death cannot have been taken place by the injurie Nos. 1, 2, 4 and there was no fracture of thyroid and, death was ante mortem and homicidal in nature, unless proved otherwise from the circumstantial evidence obtained from, subsequent investigation. So, he was not certain and definite that the death was homicidal in nature, and thereby medical evidence has not also supported the prosecution case.

26. P.W. 14 has deposed that in 1990 at about 8/8.30 p.m. while he was viewing World Cup in the TV then Kripanath’s wife came to their club room and told that in spite of payment of entire salary she was abused and assaulted by the inmates of Kripanath and on 12.10.1990 at night one Gitarani Samui came to their Club and informed that wife of Kripanath died by hanging and he heard quarrel in the house of Kripanath every day, but he has also deposed that dispute or quarrel takes place in every house, and though as per his evidence himself, Babua, Kishore, Debasis and some others attended the house of Kripanath, yet he did not find Debasis Dev, P.W.3, in the house of Kripanath on that day and said Babua, Kishore have not been examined as witness in this case, though they gave statements to Police.

27. P.W. 15 has deposed that the accused persons used to torture Jharna demanding more money though the entire family was dependent upon her income and on 12.10.1990 at 10.30 p.m. she was informed by Bimalendu that Jharna committed suicide by hanging, but she has also deposed as a Homeopathic physician that Jharna was treated by Dr. A.K. Nandy on 7.11.1984 for her disease of white menstrual discharge, and body of any female may become weaker due to such white menstrual discharge, and Jharna was also prescribed medicine No. 4 named Aurum Metallicum by Dr. K.P. Pyne, who medically treated her, and that medicine can be applied for different diseases but she cannot tell for which purpose that medicine was prescribed to Jharna and she cannot also tell whether the aforesaid medicine is applied only in case of patient’s suicidal tendency or depression of mind, though as per her evidence Jharna performed ‘Manat’ and drew ‘Gandi’ from Ramkrishnapur Ghat to a ‘Shani Temple’. As such it appears that she tried to suppress the truth and as a Homeopathic doctor herself she is supposed to know for which purpose the said medicine is prescribed, and her evidence also brings a probability of the defence case that Jharna committed suicide out of her own accord as she had no child as a married lady and she was suffering from mental depression for that.

28. P.W.16 is a witness of the inquest held over the dead body of Jharna and he signed in the inquest report as witness, but he did not read the contents thereof. As a witness to the inquest he is not supposed to know why Jharna committed suicide.

29. P.W.17 is the investigating officer of the case who filed charge-sheet only against the accused persons after investigation on perusal of the C.D. and preparing the seizure list.

30. P.W.18 is a Police Officer, who received the written complaint on 13.10.1990, started Shibpur Police Station case No. 307 dated 13.10.1990, took up investigation of the case, visited the P.O., held inquest over the dead body, prepared seizure list, sent the dead body to morgue for P.M. examination, collected P.M report, examined available witnesses, arrested the accused persons and sent them to the Court, but could not submit charge-sheet due to transfer.

31. It is not disputed that the appellant Kripanath Ganguly’s wife named Jharna has died by hanging on 12.10.1990 and it is not also disputed that the P.W.l Satyen Mondal’s elder sister Jharna was married with the appellant Kripanath Ganguly on 2nd March, 1982 and after marriage his elder sister Jharna used to live in the house of Kripanath Ganguly at Shibpur where the parents and brother of Kripanath Ganguly, namely, Debnath Ganguly were also living, and at the time of the marriage between Jharna and Kripanath, Jharna was a graduate and a teacher of a primary school and Kripanath was an unemployed person, and Kripanath, his mother and brother were dependent upon the salary of Jharna and Kripanath’s mother has died, but while it is the case of the prosecution that Jharna was prone to commit suicide to escape from the torture inflicted upon her by the accused persons or she was hanged, then it is the case of the appellants that the P.W. 1’s elder sister Jharna was a lady of hypersensitivity and psychiatric patient as she failed to become mother of a child due to her ailment and weakness of body due to disease of white menstrual discharge, and she was prone to commit suicide due to the taking of a homeopathic medicine named ‘Aurum Metallicum’ prescribed by her attending homeopathic physician and she committed suicide for that reason out of her own accord, for which the appellants had no hand therein.

32. It appears from the evidence of P.Ws. 1, 5, 11 and 15, who are close relatives of the deceased Jharna, that she being a graduate primary school teacher married the unemployed Kripanath Ganguly out of love as per her own choice on 2.3.1982 and while Jharna used to sing then Kripanath used to beat ‘tabla’ and after marriage they were living together in the house of Kripanath and some times in a rented premises, and at that time the family of Kripanath consisting of his parents and brother was being maintained with the salary income of Jharna as a primary school teacher and Jharna used to pay almost the entire salary amount to her husband or his mother for their maintenance and about six years after their marriage Kripanath got a service at Uday Narayanpur Health Centre. In spite of that these P.Ws. have sought to say that Kripanath, his mother and brother used to torture Jharna demanding dowry and being unable to bear with their severe torture Jharna was compelled to commit suicide. It is not believable that in spite of Jharna’s giving almost entire salary amount for the maintenance of her husband’s family they used to torture her demanding further dowry money or other article from her. As per the evidence of P.W. 1 no social ceremony took place in the marriage between his elder sister Jharna and Kripanath and they did not lodge any complaint before police in the matter of demand of dowry after marriage and no petition was filed in the Court under the provisions of Dowry Prohibition Act. As per the prosecution case Jharna was married with Kripanath on 2.3.1982 and she died on 12.10.1990, that is more than 8 years and 7 months after marriage. Had the appellants really tortured Jharna after her marriage for not meeting the demand of dowry of the appellants, then surely they would have at least informed the matter at the police station or would have filed case in the Court in that regard, but they did not take any such step. Such non-action on the part of the relative P.Ws. has made their evidence regarding torture upon Jharna doubtful. Learned Trial Court has laid much stress upon the alleged story that Jharna, being a housewife was compelled to bring kerosene oil and was mentally tortured thereby, while Kripanath and his brother were present, but P.W. 12 has also deposed that many local house wives used to bring kerosene oil from the shop by queuing. In that case if Jharna as a housewife brought kerosene oil from the shop for her own family without causing detriment to her service, then that cannot be treated as an instance of mental torture upon her.

33. Further as per the evidence of P.W.1 on 12.10.1990 at 9 p.m. Kripanath informed his youngest brother (son of uncle) that his elder sister Jharna, who was married with appellant Kripanath Ganguly on 2.3.1982, has hanged herself. As per evidence of P.W.5 when her son told that Jharna committed suicide by hanging, then they went to the house of Kripanath and found that dead body of Jharna was lying on the floor and when she went to the house of Kripanath then she found Kripanath and his mother Labanya there. P.W.11 has deposed that on 12.10.1990 at about 9.30 p.m. receiving information from his cousin brother Bimalendu Mandal that Jharna committed suicide by hanging by rope they went to the house of Kripanath and Kripanath informed the incident to his cousin brother by riding on cycle and going there he found Labnya, Kripanath’s mother, in the ground floor. It also appears from the evidence of P.W.5 that when her son requested Kripanath to go to their house then Kripanath told that he had no time as he would be required to go to Thana or P.S., and as per the evidence of P.W.18, the I.O. of the case, a U.D. case was started on the basis of information of Kripanath Ganguly, and as per the evidence of P.W.1 on 12.10.1990 at 10.00 p.m. he saw police in the house of Kripanath. It appears from the inquest report, Exhibit No. 4, that the hanging dead body of the deceased Jharna was taken down with the help of her husband Kripanath Ganguly and her mother-in-law Labnyarani Ganguly and it was learnt from Labnyarani that the mental condition of the deceased was not good as she had no child. So it is apparent from the evidence of these P.Ws. as well as Exhibit No. 4 that Jharna’s husband Kripanath gave the information of her death to the informant party and both himself and his mother were present there and they helped police in bringing down the dead body and they did not flee away therefrom and did not try to suppress the fact of death of Jharna by hanging or to give any imaginary or fabricated story regarding death of Jharna. Had they really any intention to suppress the fact or any intention to give a different explanation regarding the death of Jharna by hanging, then surely they would not have given intimation regarding hanging of Jharna and would have not stated to police and coming to the relatives of Jharna, and this fact clearly proves that the appellant had no intention to suppress the truth or to give any different explanation regarding the hanging of Jharna to suit their explanation regarding the death of Jharna. The circumstances that the appellants explained how and in what manner the deceased died, and the husband gave information to the inmates of the father-in-law’s house of the deceased regarding death, and husband gave information to police at the P.S. and police started U.D. case and came at his instance immediately after the occurrence, and the husband and mother-in-law did not flee away after the incident, rather were present there and helped police in taking down the dead body and making inquest, and as per the inquest report the deceased committed suicide as mental or psychiatric patient as she had no child, and the deceased died long more than 8 years after her marriage and not within 7 years of her marriage clearly suggest that the deceased might have committed suicide as a frustrated lady out of her own accord and the appellants had no hand in her death nor they abetted or instigated her to commit suicide and as such there is a probability of the defence case that she committed suicide out of her own accord as a mental patient as she had no child and the appellants are entitled to get benefit of doubt in such case.

34. It has been observed by the learned Trial Court in his judgment that the accused persons were present immediately before the death of the victim, but no explanation has been advanced by accused persons in examination under Section 313 of the Cr.P.C. as to why the victim-Jharna committed suicide by way of hanging. In this regard it appears that the accused persons pleaded their innocence then and they gave their explanation in that regard at the time of holding inquest by saying that the deceased Jharna had no child and so her mental condition was not good. It is also an established principle of law that the prosecution must stand on its own leg and prove its own case beyond all reasonable doubt and cannot depend upon the weakness of the defence, if any.

35. Learned Trial Court has stated much about the doctrine of res gestae in his judgment, but the principles of the said doctrine are not applicable in this case as there was no eyewitness to the alleged incident of committing suicide by Jharna or torture upon her. It is also an established principle of law that in such a case prosecution must prove its own case beyond all reasonable doubt by sufficient reliable evidence and the defence is under no obligation to disprove the prosecution case and the benefit of doubt if any must stand in favour of the accused persons. It also appears that the learned Trial Court has also mentioned the said principle of law in the impugned judgment. From that point of view it cannot be said that the onus was upon the defence appellants/accused persons to explain as to why the victim Jharna committed suicide by hanging, rather it is evident from the evidence of P.Ws. 1, 5, 11 and 15 that Jharna committed suicide by hanging, but not due to any torture or demand of dowry upon her by the appellants, but due to mental depression as she had no child, and it has already been pointed out that the allegations of torture has not been proved by evidence and as per the evidence of P.W. 1 neither any complaint was lodged before police nor any petition was filed in the Court under the Dowry Prohibition Act regarding the alleged demand of dowry, nor it has been proved by evidence that due to any instigation of the appellants Jharna committed suicide and no instigation of the appellants was the proximate cause of her committing suicide. Though some of the P.Ws. have stated about quarrel in the house of the appellants or suggestion to the victim to die, yet it should be kept in mind that discord and difference in domestic life is common to society where the victim belonged, and any word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. The date and time of torture have not specifically been mentioned and where purported demand by husband and his relatives had no direct nexus or immediate cause for commission of suicide by his wife, then the same would not amount to abetment of such suicide and the prosecution should prove its case beyond all reasonable doubt and the test of proximity cannot be reduced to a cut and dried formula.

36. Now it is to be considered as to whether death of Jharna by hanging was suicidal or homicidal in nature. In this regard though it has been stated by the P.Ws. 1, 5, 11, 15 as well as the evidence of P.Ws. 2, 3, 6, 7, 12, 8, 9 and 10 that the death of Jharna by hanging was suicidal in nature, yet as per the evidence of the doctor concerned P.W. 13 her death was ante-mortem and homicidal in nature as a result of hanging, but P.W. 13 was not definite that the said death of Jharna was homicidal in nature inasmuch as P.W. 13 has deposed that the nature of death was antimortem in homicidal in nature “unless proved otherwise from the circumstantial evidences obtained from subsequent investigation procedure of the above mentioned case”, as such there was scope and probability of proving by circumstantial evidence that her death was caused otherwise than being homicidal in nature. But it has been proved by the evidence of the P.Ws. 1, 5, 11, 15 and other witnesses that Jharna died by hanging and her death was suicidal in nature. Though as per the evidence of these P.Ws. the deceased Jharna committed suicide due to torture upon by her husband and his family members, yet it also appears from their evidence that Jharna married Kripanath out of love and as per her own choice on 2.3.1982 and she died on 12.10.1990, but no such convincing evidence is forthcoming from the side of the prosecution wherefrom it can be presumed that Jharna was being tortured in her father-in-law’s house during that period when she was living with her husband for which she was compelled to commit suicide, rather it is evident from the evidence of P.W. 10 that Jharna told her that due to absence or lack of normal relation no issue was born during her conjugal life with Kripanath. It has also, been stated by P.W. 15 that Jharna performed ‘Manat’ by drawing ‘Gandi’ from Ramkrishnapur Ghat to a ‘Shani’ Temple and Dr. Kalipada Pyne, a homeopathic physician, under whom for some period her second elder sister Jharna was medically treated and who issued a prescription in favour of Jharna whereby medicine No. 4 named ‘Aurum Metallicum’ was prescribed and the said medicine can be applied for different diseases, but P.W. 15 cannot tell the particulars of the prescription for which that medicine was prescribed by the Doctor for Jharna and she cannot also tell whether the said medicine is only applied in case of patient’s suicidal tendency or depression of mind and she cannot also tell for which purpose the aforesaid medicine was applied or prescribed. It also appears from the evidence of P.W. 15 that Jharna Ganguly was also medically treated by Doctor A.K. Nandy on 7.11.1984 for white menstrual discharge and as homeopathic physician she has deposed that the body of any female may become weaker due to white menstrual discharge and in this regard learned Counsel for the appellants has referred to a book named “Pocket Manual of Homeopathic Materia Medica by Oscare E Boericke, A.B., M.D.” at page 96 wherein the details of the medicine named Aurum Metallicum has been given and it has been stated therein that the said medicine is used as a remedy in case of “Hopeless, despondent, and great desire to commit suicide and every opportunity is sought for self-destruction and as regards Mind—Feeling of self-condemnation and utter worthlessness. Profound despondency, with increased blood pressure, with thorough disgust of life, and thoughts of suicide. Talks of committing suicide.”

37. In view of the aforesaid evidence of P.Ws. 10 and 15 as well as the details of the Aurum Metallicum applied to said Jharna by a homeopathic Dr. Kalipada Pyne, who medically treated Jharna and prescribed the said medicine for her treatment there is a probability of the defence suggestion put to P.W.I and other witnesses that elder sister of P.W. 1, Jharna was a lady of hypersensitivity and a psychiatric patient and for that reason she committed suicide by hanging and it has also been mentioned in the inquest report dated 12.10.1990, Exhibit-4 that at the time of holding inquest it was learnt from the mother-in-law of the deceased Jharna Ganguly that no child was born to the deceased as a result of which the mental condition of the deceased was not good. In fact if a married lady, who married some one out of love as per her own choice being a graduate and serving as a teacher of a school, cannot become mother or get the taste of motherhood, then there is every likelihood of her suffering from mental depression for that reason and judicial notice of that fact can also be taken, and in that case the said married lady might have a tendency to end her life by committing suicide out of frustration and in the instant case, it is evident from the evidence of P.Ws. that though Jharna was married in 1982 she could not give birth to any child till the date of her death on 12.10.1990 and there was probability of the defence case that she committed suicide due to that reason out of frustration and mental depression and in that case the appellants are entitled to get benefit of doubt. It is also apparent from the evidence of P.W. 15 that Jharna performed ‘Manat’ and drew ‘Gandi’ for obtaining child, but because of her disease of white menstrual discharge she could not become mother of a child and that was a cause of her frustration also for which there was probability of her committing suicide apprehending that she could never become mother of a child. Though it has been observed by the learned Trial Court that ho convincing evidence has been adduced from the side of the defence that the victim Jharna was a woman of abnormal temperament and there is no convincing evidence to hold that the victim was a psychiatric patient, yet in view of the discussion noted above it is apparent that learned Trial Court was not correct in his observation in that regard, rather he was wrong and in view of the evidence of P.Ws. 10 and 15 as well as the contents of the inquest report Exhibit-4 there is a probability of the defence case that as because Jharna had no child and there was no probability of her becoming a mother due to her female disease, so she become a mental patient and was suffering from mental depression in that regard which led her to commit suicide. The evidence of the neighbours like P.Ws. 2, 3, 6, 7, 12, friends and acquaintances like P.Ws. 8, 9, colleague teachers like P.Ws. 9, 10, near by club member P.W.14 as well as the evidence of P.W. 13, the medical officer concerned, who conducted the post-mortem examination over the dead body of Jharna Ganguly, would be of no help to the prosecution case nor could there is any evidence to improve the prosecution case when there is a probability of Jharna’s committing suicide out of her frustration and mental depression that she could not become a mother in spite of being married with a man of her own choice. As per the evidence of P.W. 16 he signed on the inquest report, but he did not read out the contents thereof where he signed. P.W. 17 filed a charge-sheet only, though actually investigation was done by P.W. 18 and as per the evidence of P.W. 18 on 12.10.1990 he started a U.D. Case No. 45 dated 12.10.1990, whereas as per the evidence of P.W.1 informant and de facto complainant of the case he informed the matter of the police station on 13.10.1990 at 8.55 hours.

38. There are some other infirmities in the prosecution case which require mention. Though as per the evidence of P.W. 1 on 12.10.1990 at 10 p.m. he saw police in the house of Kripanath yet he did not make any statement to police at the relevant time and even on 13.10.1990 he went to the Police Station at 1 a.m. (night) with dead body of his elder sister, yet he did not lodge complaint at the Police Station before 8.55 hours on 13.10.1990. The said non-lodging of FIR before police or at the Police Station and delay in lodging FIR at the Police Station, has not sufficiently been explained and why no complaint was lodged by father or mother of the victim Jharna has also been explained by the prosecution. Moreover as per the evidence of P.W.18 he did not find any statement of Satyen Mondal in the C.D. examined by him on 13.10.1990. There was no dying declaration or suicidal note or any letter written by said Jharna Ganguly stating about any torture to her parents or relatives during the subsistence of marriage nor that has been produced or proved by the prosecution.

39. In view of the discussion noted above, it is evident that the allegation of torture upon Jharna by the appellants on demand of dowry and her committing suicide being unable to bear with the torture of the appellants for dowry and any abetment by the appellants to said Jharna for committing suicide, has not been established by sufficient reliable evidence, rather there was a probability of the defence suggestion put to the P.Ws. that said Jharna committed suicide as a psychiatric patient being unable to bear with her plight that she could never become mother even being married with a man of her choice due to her female disease of white menstrual discharge and bodily infirmity and mental illness due to that.

40. In this case it is apparent that two stories and possibilities have emerged from the evidence of P.Ws. and other materials on record one that Jharna committed suicide being unable to bear with the torture of the appellant on demand of dowry, and the other that Jharna had no child and being a married lady she committed suicide realizing that she could never become mother due to her female disease or mental illness. It is an established principle of law that if two views are possible regarding the prosecution case, then the view favourable to the accused or appellants should be accepted. From that point of view the case that Jharna had no child and she committed suicide out of her own accord realizing that she could never become mother even after her marriage with a man of her choice, should be accepted.

41. Having regard to the submissions of the learned Counsel for the parties, evidence, judgment and other materials on record, it appears that the prosecution case has not been proved by sufficient reliable evidence beyond all reasonable doubt and there was a probability of the defence case that Jharna committed suicide out of frustration and mental depression as a psychiatric patient as she being a married lady had no child and as such the learned Trial Court was not legal, correct and justified in convicting and sentencing the appellants for the offence under Sections 498A/306/34 of the Indian Penal Code and so there is sufficient reason to interfere with the same.

42. As a result the appeal is allowed. The impugned judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, 3rd Court, Howrah, are set aside. The present appellants are found not guilty to the charge of the alleged offences under Sections 498/34 and 306/34 of the Indian Penal Code. Accordingly they are acquitted and be set at liberty forthwith on being discharged from their bail bonds, if not wanted in any other case.

43. A copy of the this judgment and Order along with the Lower Court records be sent to the learned Trial Court as early as possible.

Urgent photostat certified copy of this judgment and order be given to the parties, if applied for, on compliance of necessary formalities.

Tapen Sen, J.—I agree.

 

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