Gautam Paul & Anr vs State Of West Bengal
2022 Latest Caselaw 6996 Cal

                   IN THE HIGH COURT AT CALCUTTA
                  CRIMINAL APPELLATE JURISDICTION
                           APPELLATE SIDE


Hon'ble Justice Chitta Ranjan Dash
                AND
Hon'ble Justice Partha Sarathi Sen


                           C.R.A. No. 368 of 2007

                         Gautam Paul & Anr.
                               -Versus-
                         State Of West Bengal


     For the Appellant        : Mr. Debapratim Guha, Adv.
                              : Mr. Sumanta Ganguly, Adv.
                              : Mr. Rajiv Lochan Chakraborty, Adv.
                               : Ms. Anchita Sarkar, Adv.


     For the State            : Mr. Saswata Gopal Mukherjee, Ld. P.P,
                               :Ms. Zareen N. Khan, Adv.,
                               :Mr. Ashok Das, Adv.,
                               : Md. Kutubuddin, Adv.



Heard on:                      : 23.09.2022
Judgment on.                   : 27.09.2022

PARTHA SARATHI SEN, J. : -

1.

The present appeal arises out of the judgment and order dated

25.05.2007 and 28.05.2007, as passed in S.T. 2nd April 2003 (arising out

of Sessions Case No. 35/1998, GR Case No. 52/1996, Burwan PS Case

No. 12/1996 dated 25.01.1996) by the Learned Additional Sessions

Judge, 1st Fast Track Court, Kandi, Murshidabad whereby the present

appellants being Gautam Paul and Dhanubala Paul were convicted under

Section 235(2) of Cr.P.C for the offence committed under Sections

498A/306 IPC.

2. The convicts namely; Gautam Paul and Dhanubala Paul felt

aggrieved and thus filed the instant appeal.

3. For effective disposal of the instant appeal, the facts leading to

initiation of Burwan PS Case No.12/96 dated 25.01.1996, under Sections

498A/306 IPC are required to be dealt with in a nutshell.

4. One Lal Mohan Mondal son of Nitya Mondal of village Barutiya PS

Mayureswar, District Birbhum lodged a written complaint dated

25.01.1996, with the O/C Burwan Police Station, District Murshidabad

stating inter alia that on 4th Ashar, 1395 (according to Bengali Calendar)

marriage of her sister Minati Mondal was solemnized with one Gautam

Paul son of Samadis Paul of Mallikpur, PS Burwan, District Murshidabad

as per Hindu Rites and Customs. It has been stated in the said written

complaint that one year after such marriage her sister's husband Gautam

Paul, parents-in-law; namely; Samadis Paul, Dhanubala Pal and her

brother-in-law Prabir Paul started torturing his aforementioned sister

Minati both physically and mentally. It has been stated further that over

this issue mediation has been done by the local Panchayat. It has also

been disclosed that whenever Mianti was subjected to torture at her

matrimonial home at the instance of the aforementioned persons, she

used to inform the same to the family members of her paternal home.

However, the de facto complainant and his family members used to leave

her in her in-laws' house after trying to pacify her grievance.

5. In the written complaint, it has been stated further that on

25.01.1996, at about 7 a.m one Banshibadan Mondal, maternal uncle of

Gautam Paul intimated him that Minati Paul died after consuming poison

and immediately thereafter he along with his family members rushed to

his sister's matrimonial home and after reaching there at about 8:30 a.m

they noticed that his sister was lying dead on the floor of the upstairs

room and none of the accused persons are present at that time. It is the

further version of the de facto complainant that from the neighbours of

the matrimonial home of his sister he came to learn that his said sister

died on 24.01.1996, at about 7:30 p.m. In his said written complaint he

thus disclosed that he very much suspected that his said sister had either

committed suicide being unable to bear the torture of her husband and

other in-laws as mentioned above or the said persons had murdered her.

6. As stated above, on receipt of such written complaint the

aforementioned PS Case was started. Investigation was taken up and on

completion of the same charge sheet was submitted under Sections

498A/306 IPC. The Learned SDJM Kandi, District Murshidabad found

that the case is triable by a Court of Sessions and accordingly by his

order dated 02.04.1998 the case record was committed to the Learned

Sessions Judge, District Murshidabad who thereafter transferred the

aforementioned case to the learned trial court for trial and disposal.

7. Lower Court Records reveals that the learned trial court on perusal

of the entire materials as placed before him including the Case Diary

framed charges under Sections 498A/306 IPC against all the charge

sheeted four accused persons namely; Gautam Paul, Samadis Paul,

Dhanubala Paul and Prabir Paul. Since all the four accused persons

pleaded their innocence and claimed to be tried, the trial before the

learned trial court proceeded and ultimately the learned trial court by

impugned judgement and order found the present two appellants namely;

Gautam Paul and Dahnubala Paul guilty under Sections 498A/306 IPC

and thus they were convicted while rest of the two accused persons

namely; Samadis Paul and Prabir Paul were found not guilty and thus

they were acquitted from the said case.

8. Heard the learned advocate for the appellants as well as the learned

Public Prosecutor-in-Charge for the state at length. Perused the entire

materials of the trial court's record including the oral evidence as adduced

by the PWs as well as the DWs, the exhibited documents as well as the

examination of the accused persons under Section 313 CrPC. We have

minutely gone through the impugned judgement as passed by the learned

trial court.

9. In support of the instant appeal learned advocate for the appellant,

Ms. Anchita Sarkar, led by Mr. Debapratim Guha, Mr. Sumanta Ganguly

and Mr. Rajiv Lochan Chakraborty at the very outset draws attention of

this Court to the evidence of PW1, PW9 and PW 11. It is submitted by her

that while passing the impugned judgement learned trial court ought not

to have placed much reliance upon the evidence of the aforesaid three

prosecution witnesses. It is argued that on conjoint perusal of the

evidence of the aforesaid three prosecution witnesses it will reveal that

they are not truthful witnesses and their respective examination-in-chiefs

and cross-examinations are contradictory. Drawing special attention of

this Court to the cross-examination of PW 9 and PW11, it is submitted

that in their respective cross-examinations it has been admitted by PW9

and PW11 that in course of investigation they had not given any

statements before the Investigating Officer and in view of such, their

evidence must not be considered as sacrosanct.

In course of her argument Ms. Sarkar, learned advocate for the appellant

placed her reliance upon the following three reported decisions:-

Mangat Ram vs. State of Haryana reported in (2014) 12 Supreme

Court Cases 595

Niharbala Banerjee & Anr. Vs. State reported in 1988 SCC Online

Cal226: (1988) 2 CHN 398: (1989) 1 Cal LT 307: 1989 Cri LJ (NOC

38) 19

Amalendu Pal @Jhantu vs. State of West Bengal reported in (2010) 1

SCC 707.

Ms. Sarkar, learned advocate for the appellants thus contends that it is a

fit case for allowing the instant appeal by setting aside the impugned

judgement.

10. Mr. Ashok Das, led by Ms. Zareen N. Khan, contends that learned

trial court committed no error of fact or of law in placing reliance upon

the evidence of the prosecution witnesses. It is contended further that

before the learned trial court PW1, PW9 and PW11 had adduced

corroborative evidence to bring home the charges under Sections

498A/306 IPC against the present appellants. It is argued that from the

deposition of PW 10 vis-a-vis the post mortem report (Exhibit 5) it will

reveal that the victim committed suicide and it has also been proved

beyond reasonable doubt before the learned trial court that the victim

Minati was subjected to torture at the instance of her family members of

her matrimonial home and finding no other alternative she committed

suicide.

It is thus argued by Mr. Das that it is a fit case for dismissal of the instant

appeal.

11. On perusal of the trial court's record it reveals to us that in order to

bring home the charges under Sections 498A/306 IPC, the prosecution

has examined nine witnesses in all and six documents have been

exhibited on behalf of the prosecution. It reveals to us further that before

the learned trial court on behalf of the accused persons three witnesses

have also been examined as DWs.

12. In considered view of us, for effective disposal of the instant appeal

a brief discussion with regard to the evidence as adduced PW1, PW9,

PW10, PW7, PW8 and PW11 are very much relevant and accordingly we

propose to confine our discussion over the oral evidence of the aforesaid

prosecution witnesses vis-à-vis some exhibited documents.

13. Since PW 1 being the de facto complainant and the brother of the

deceased in his written complaint (Exhibit 1) had disclosed that the death

of his sister Mianti was unnatural and since the learned trial court framed

charges under Sections 498A/306 IPC as against all the accused persons

before commencement of trial, we propose to look to the evidence of PW10

vis-à-vis the post mortem report dated 26.01.1996 (Exhibit 6).

14. On perusal of the post mortem report of the victim it appears to us

that PW10 after conducting autopsy over the dead body of deceased

Minati Paul expressed following opinion:-

"the cause of death in my opinion is to be kept pending till final analysis (chemical analysis) report of the preserved specimen is available from the State Forensic Department at Kolkata"

15. On perusal of the evidence of PW10 (autopsy surgeon) it reveals to

us that it is his version in his examination-in-chief that he find no

external injury on the person of the deceased and on dissection of the

body, he found in the stomach of the deceased 'as coloured' fluid

materials of about four ounce. He also noticed that all vital organs were

healthy and congested. In his examination-in-chief, with regard to cause

of death of the deceased he stated the following:-

"the cause of death in my opinion is to be kept pending till final analysis (chemical analysis ) report of the preserved specimen is available from the State Forensic Department at Kolkata"

He was not cross-examined from the defence side. On conjoint perusal of

Exhibit 6 (post mortem report of the deceased) and the evidence as

adduced by PW10, it thus appears to us that from the aforesaid oral and

documentary evidence it has not become clear as to whether the death of

the deceased occurred on account of consumption of poison or not or the

same is homicidal or suicidal. It is pertinent to mention therein that

before the learned trial court the prosecution for the best reason known to

them, made no endeavour to tender Forensic Department's Chemical

Analysis Report which is evident from the evidence of PW8 (second I.O)

who stated that he submitted charge sheet pending Chemical Analysis

Report of the viscera of the deceased. In view of such we have got no

hesitation to hold that the before the learned trial court the prosecution

has miserably failed to prove that the deceased committed suicide or not

at least from the evidence of PW10 vis-à-vis (Exhibit 6). At this stage we

consider it necessary to have a glance to the evidence of PW1 i.e the de

facto complainant and PW9 who is the cousin brother of the deceased as

well as mediator of the marriage and neighbour of the accused persons.

16. On perusal of the evidence of PW1 (de facto complainant) it reveals

to us that it is his specific version in his examination-in-chief that his

sister Minati was subjected to physical and mental torture at her

matrimonial home at the instance of the accused persons and whenever

he and his family members got the information of such assault they

visited the house of the accused persons and even sometimes they used

to take Minati to their own home and thereafter they used to sent her

back to her matrimonial home. Though while lodging his written

complaint, he was not sure as to whether Minati's death was suicidal or

homicidal in nature but in his examination-in-chief he categorically stated

that the accused persons murdered Minati by strangulation after hitting

her severely and that he noticed mark of injuries on the person of his

sister namely; on her face, neck and her chest. At this juncture we

consider it necessary to have a look to his cross-examination. He stated

that he was a witness to the inquest of the dead body of his sister. He

categorically stated that he found inflammation and marks of injury on

the left side of mouth of her dead body. So far as the evidence of PW1 with

regard to the allegation of physical torture upon his sister by the accused

persons and the presence of injuries as claimed to have been seen by him

practically gets no corroboration either from evidence of PW10 (autopsy

surgeon) or from Exhibit 6 ( post mortem report ) or from Exhibit 2/3

(inquest report). Since from the said oral and documentary evidence, it

reveals to us that no such wound was found either at the time of doing

inquest or at the time of autopsy over the dead body of the deceased.

17. So far as the evidence of PW9 is concerned, it appears to us that in

his examination-in-chief he stated that after one year of her marriage the

accused persons started torturing Minati and on this issue two 'salisis'

(village conciliation) took place and once the matter was taken to the

Police Station also. From his cross-examination it reveals to us that in

between the accused and him both civil and criminal litigations are

pending. It is pertinent to mention that in his cross-examination he stated

that he was not examined by the I.O.

18. On perusal of the evidence of PW11 who is a co-villager of the

present appellants, it reveals that in his examination-in-chief he stated

that Minati during her life time was subjected to cruelty at the instance of

the accused persons. He stated further that the accused persons'

behaviour towards her was not good and she was not even given sufficient

food. He stated further that in one evening the accused persons had

beaten Minati and on the next morning he heard that Minati is no more.

Cross-examination of PW11 in our considered view is little bit interesting.

PW11 in his cross-examination stated that the victim Minati was

murdered and in his opinion she did not commit suicide. He stated that

he made no statement to the I.O. He further stated that he and the

accused persons belonged to rival political parties. He stated in his cross-

examination that on the relevant day, he received the information from

the villagers in the morning and after receiving such news he heard from

the villagers that the deceased was subjected to torture and was

ultimately killed. In our considered view since the evidence of PW11 as

adduced by him in his examination-in-chief is totally contrary to his

cross-examination, it would be very risky if any reliance is placed upon

the evidence as adduced by PW11 and according to us PW11 is not a

truthful witness.

19. In order to decide as to whether the learned trial court by the

impugned judgement and order was at all justified in convicting the

present appellants under Sections 498A/306 IPC on the basis of the

evidence as adduced by PW1, PW9, PW7, PW8 and PW10, we consider it

necessary to have a glance to the relevant provisions of law as well as to

some important reported decisions on the subject. Section 498A of IPC is

as under:-

"498A.Husband or relative of husband of a woman subjecting her to cruelty.

[Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation.--For the purposes of this section, "cruelty means"--

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.]"

Section 306 IPC is reproduced hereunder:-

Section 306 in The Indian Penal Code "306. Abetment of suicide.--If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

Section 107 is as under:-

.107. "107.Abetment of a thing A person abets the doing of a thing, who--

First.--Instigates any person to do that thing;

Secondly.--Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal

omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.--Intentionally aids, by any act or illegal omission, the doing of that thing."

At this juncture we propose to look to a reported decision of Amar

Singh vs State of Rajasthan reported in (2010) 3 C CrLR (SC)446

wherein in a case under Section 498A/304B IPC the Hon'ble Apex Court

of our country held the following:-

"A prosecution witness who merely uses the word "harassed or tortured'' and does not describe the exact conduct of the accused which, according to him, amounted to harassment or torture may not believed by the Court in cases under Section 498A/304 B IPC.

Where accusations of dowry deaths are made, the overt acts attributed to persons other than the husband are required to be proved beyond reasonable doubt and by mere conjectures and implications such relations cannot be held guilty for the offence relating to dowry deaths ..... A tendency has developed for roping in all relations of the in- laws of the deceased wives in the matter of dowry deaths which, if not discouraged, is likely to affect the case of prosecution even against the real culprits."

The same view was taken in an earlier reported decision Kans Raj vs.

State of Punjab reported in (2000) 5 SCC 207.

20. Admittedly in the case before us neither PW1 nor PW9 stated before

the learned trial court that the deceased Minati was subjected to

cruelty at the instance of the appellants on account of unlawful

demand of dowry. On the contrary both the aforesaid two witnesses

categorically stated that one year after marriage the victim was

subjected to physical and mental torture at the instance of the accused

persons and sometimes they got news of such assault. As discussed

above, the allegation of physical assault as raised by PW1 and PW9

practically gets no support either from her inquest report or from the

post mortem report and thus on account of such glaring contradiction

and in absence of alleged specific conduct of the present appellants

towards the victim, it is not at all believable to us that before the

learned trial court, the prosecution is successful in proving that

deceased Minati during her life time was subjected to cruelty at the

instance of the present appellants and thus in our considered view the

finding of the learned trial court that the present appellants namely;

Gautam Paul and Dhanubala Paul are guilty under Section 498A IPC is

not sustainable in law and the same is thus set aside.

21. In order to come to a logical conclusion as to whether the learned

trial court is at all justified to hold that the present two appellants are

guilty under Sections 306 IPC we propose to place our reliance to a

reported decision in P.J Agro Tech Limited vs. Water Base Limited

reported in (2010) 3 C CrLR (SC)1 wherein the Hon'ble Apex Court

expressed the following view:-

"Abatement involves a mental process of instigating a person or intentionally aiding a person in doing of thing. Without a positive act on part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. .... It also requires an active part or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide."

In another reported decision Madan Mohan Singh vs State of Gujarat

reported in (2011)1 C CrLR (SC) 190 the Hon'ble Supreme Court of India

while deciding a case under Section 306 IPC expressed the following

view:-

"In order to bring out an offence under Section 306 IPC specific abetment as contemplated by Section 107, IPC on the part of the accused with an intention to bring about the suicide of the person concerned as a result of that abetment is required. The intention of the accused to aid or to instigate or to abet the deceased to commit suicide is a must for this particular offence under Section 306, IPC."

The same view was taken by the Hon'ble Courts in the reported decisions

of Mangat Ram vs. State of Haryana reported in (2014) 12 Supreme

Court Cases 595; Niharbala Banerjee & Anr. Vs. State reported in 1988

SCC Online Cal226: (1988) 2 CHN 398: (1989) 1 Cal LT 307: 1989 Cri

LJ (NOC 38) 19; Amalendu Pal @Jhantu vs. State of West Bengal

reported in (2010) 1 SCC 707 as cited from the bar.

22. Keeping in mind the above proposition of law if we once again look

to the evidence of the prosecution witnesses, it appears to us that none of

the prosecution witnesses uttered a single word against the present

appellants that they abated Minati to commit suicide. In absence of any

positive evidence on the part of the PWs that there was either active or

passive instigation on the part of the present appellants in favour of the

deceased Minati to commit suicide, we consider the that the learned trial

court is equally not justified in convicting the present appellants holding

that they are guilty under Section 306 IPC.

23. Before parting with, we feel it obligatory to discuss that in page 7 of

the impugned judgement the learned trial court specifically held that the

present appellants had failed to explain the injuries as occurred to the

victim during her stay at her matrimonial home and the present

appellants equally failed to explain as to why the victim committed suicide

in her matrimonial home. In considered view of us, learned trial court

while making the aforementioned observation wrongly interpreted Section

106 of the Indian Evidence Act, 1972, since before the learned trial court

nothing could be produced to show that there were injuries on the person

of the deceased and the alleged reason of committing suicide by the victim

Minati, under no stretch of imagination can come under the purview of

'special knowledge' of the present appellants in view of the aforementioned

provisions of Indian Evidence Act.

24. As a result the present appeal succeeds. The impugned judgement

and order dated 25.05.2007 and 28.05.2007 as passed in S.T. No. 2nd

April, 2003, arising out of Sessions Case No. 35/1998 by the Learned

Additional Sessions Judge, 1st Fast Track Court, Kandi, Murshidabad is

set aside. The present appellants namely; Gautam Paul and Dhanubala

Paul are found not guilty of the offence under Sections 498A/306 IPC and

thus they are acquitted form S.T. Case No. 2nd April, 2003, arising out of

Sessions Case No. 35/1998. The present appellants namely; Gautam Paul

and Dhanubala Paul are thus discharged from their respective bail bonds

and be set at liberty; if not wanted in connection with any other case.

25. Let a copy of this judgement along with LCR be sent down at once.

26. Urgent Photostat certified copy of this judgement, if applied for, be

given to the parties on completion of usual formalities.

I agree.

(Chitta Ranjan Dash, J.)                          (Partha Sarathi Sen, J.)