Swapan Kumar Mandal vs N.C.T Of Delhi
2011 Latest Caselaw 68 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


+               CRL.APPEAL No. 161/2001



%                                    Reserved on: November 23, 2010

                                     Decided on: January 07, 2011



SWAPAN KUMAR MANDAL                               ..... Appellant
                  Through:             Mr. Ranjan Mukherjee, Mr. S.
                                       Bhowmick and Mr. M. Mukherjee,
                                       Advocates.
                     versus

N.C.T OF DELHI                                    ..... Respondent
                          Through:     Mr. Pawan Bahl, App.


Coram:

HON'BLE MS. JUSTICE MUKTA GUPTA


1. Whether the Reporters of local papers may            Not Necessary
   be allowed to see the judgment?

2. To be referred to Reporter or not?                   Yes

3. Whether the judgment should be reported              Yes
   in the Digest?

MUKTA GUPTA, J.

1. Archana was married to the Appellant on 12th December, 1994.

Unfortunately, on 6th February, 1995 she committed suicide by pouring

kerosene oil on herself and setting herself ablaze. Thus, the marriage

lasted for 53 days only. The deceased left a suicide note. Besides the

suicide note, the statement of the brothers was also recorded by the

SDM, on the basis of which a case under Section 304B/498A IPC was

registered. The Appellant was arrested on the same day. On a charge

sheet being filed the Appellant was initially charged for offences under

Section 304B and 498A IPC. The statements of all the prosecution

witnesses were recorded. The brothers of the deceased turned hostile

and did not support the prosecution case. After the statement of the

accused under Section 313 Cr.P.C., the prosecution moved an

application under Section 216 Cr.P.C. to frame an alternative charge and

the learned trial court allowed the same vide order dated 21st August,

2000 and framed an alternative charge for offence under 306 IPC. The

Appellant then moved an application under Section 315 Cr.P.C. to

appear as his own witness and was examined as DW1. After hearing the

arguments, the learned trial court acquitted the Appellant of the charge

under Section 304B IPC, however convicted him for offences under

Section 498A and 306 IPC and awarded a sentence of rigorous

imprisonment for one year and fine of `1,000/- and in default to further

undergo rigorous imprisonment for one month under Section 498A IPC

and to undergo rigorous imprisonment for four years and a fine of

`5,000/- and in default thereof to undergo rigorous imprisonment for six

months under Section 306 IPC. This is the judgment and order

impugned in the present appeal. Before this appeal could be heard, the

trial court record got lost and the same has been reconstructed with the

help of learned counsels for the parties. Thus, this appeal has been

heard on the basis of photocopies of the documents supplied by the

parties.

2. Learned counsel for the Appellant contends that Section 498A IPC

contemplates two kinds of cruelty. The first one is in relation to the

demand of dowry. The learned trial court has found that the Appellant

has not committed any cruelty on the deceased in relation to demand of

dowry. The other kind of cruelty contemplated in the Section is a willful

conduct which is so grave in nature as is likely to drive the woman to

commit suicide. It is stated that there is no such allegation in the

statement of PW-1 Sardar Singh the landlord, PW2 and PW3 the brothers

of the deceased. Even as per the suicide note Ex. PW2/1 allegedly left

by the deceased, the two allegations are, firstly, that the Appellant use

to drink, call his friends for drinking, and also made the deceased drink

and, on her refusal beat her. The second allegation is that the Appellant

did not accept the child in her womb to be fathered by him. According

to the learned counsel the second allegation is the bone of contention in

the present case. The post mortem report of the deceased confirms the

stand of the Appellant that the deceased was pregnant when she

married the Appellant and this fact was concealed from him at the time

of marriage. The size and the weight of the foetus given in the post

mortem report show that the conception was not from this wedlock as

the parties were married only for 53 days.

3. It is next contended that the allegation of drinking and making her

drink and on her refusal beating her does not amount to cruelty which

can drive a woman to commit suicide. In the absence of any abetment

or instigation, the presumption under Section 113A of the Evidence Act

cannot be raised. Reliance is placed on Harijit Singh v. State of Punjab,

(2006) 1 SCC 463, Kishori Lal v. State of M.P., (2007) 10 SCC 797, Sohan

Raj Sharma v. State of Haryana , (2008) 11 SCC 215, Mankamma v. State

of Kerala, 2009 (10) SCC 164, to contend that the mere fact that the

husband treated his wife with cruelty is not sufficient to prove the

commission of offence punishable under Section 306 IPC. The

instigation and abetment has to be, as would affect a normal, prudent

person and not a hypersensitive person. Since the charge under Section

306 IPC was belatedly framed after the statement of the Appellant was

recorded, hence, he has been gravely prejudiced and cannot be

convicted for this offence. In the alternative, it is prayed that the

Appellant has spent almost 21 months in the jail and his sentence be

reduced to the period already undergone.

4. Learned APP, on the other hand, contends that the marriage in the

present case has lasted for only 53 days. The Appellant has been

acquitted for offence under Section 304-B IPC because the brothers of

the deceased turned hostile. However, the dying declaration of the

deceased clearly implicates the Appellant and depicts the cruelty meted

out to her by the Appellant in this short period. The dying declaration of

the deceased shows the continuous harassment and torture caused to

her which drove her to commit suicide. The deceased has stated that

the Appellant in the name of love tortured her. She further stated that

every night his friends came home and had liquor with the Appellant and

also made her drink, and if she stated something she was beaten and

threatened that she would be divorced. When she wanted to go to her

parent's house he did not allow her to go to her parent's house. She

further stated that she has been married to a dangerous animal who

does not even let her speak to her neighbours. She was expecting,

however, the Appellant does not accept the foetus to be his child. She

states that she will have to live with this slur throughout her life. She

states to her mother that she does not want to die but for a woman to

be living with the Appellant who is a dangerous animal, is impossible. In

view of the dying declaration, it is proved beyond reasonable doubt that

the Appellant tortured and harassed the deceased thus driving her to

commit suicide. It is thus prayed that the appeal be dismissed.

5. I have heard learned counsel for the parties and perused the

records. One of the issues that arise in the present case is whether the

alternative charge framed during the trial after the statement of the

accused had been recorded under Section 313 Cr.P.C., has caused

prejudice to the Appellant. The Appellant was originally charged for

offences under Section 304B/498A IPC. However, after his statement

was recorded under Section 313 Cr.P.C., an application was moved by

the learned APP under Section 216 Cr. P.C for framing of an alternative

charge under Section 306 IPC. Section 216 Cr.P.C. permits the Court to

alter or modify the charge which would also include framing of an

additional charge at any time before the judgment. However, it is

required to be examined that on an alternative or amended charge

being framed, whether an opportunity should be granted to the accused

for further cross examining the witnesses or leading his defence. As per

the impugned judgment, in the present case after framing of the

alternative charge under Section 306 IPC, the Appellant had moved an

application for examining himself as a witness under Section 315 Cr.P.C.

and thus it can be safely held that there was no prejudice caused to the

Appellant in leading the defence. In Moosa Abdul Rehman v. State of

Kerala, 1982 Crl. LJ, 2087 it was held that on strict consideration of the

Section allowing alteration or modification of charge, no statutory

obligation is found to be cast on the Court to enquire from the

prosecution or accused whether they would like to recall or re-summon

the witness. In the present case, the prosecution case from the inception

was of abetment to suicide, both in relation to harassment for demand

of dowry and also harassment which drives the woman to commit

suicide. The presumption as available under Section 113B of the

Evidence Act for an offence punishable under Section 304B IPC is also

available under Section 113 A of the Evidence Act for an offence

punishable under Section 306 IPC. Thus, no prejudice is caused to the

Appellant for this belated framing of additional charge.

6. Nothing incriminating has been deposed by the brothers of the

deceased PW2 Radhakrishna Devnath and PW3 Ramakrishna Devnath

against the Appellant. However, they both have identified the

handwriting and signatures of their sister on the suicide note Ex.PW2/1.

Thus, the only incriminating evidence against the Appellant is the dying

declaration of the deceased in the form of the suicide note Ex.PW2/1. A

perusal of the suicide note reveals primarily three kinds of allegations

against the appellant. Firstly, despite her being ill in Delhi for the past

one month, the news of her illness was not sent by the Appellant to the

mother of the deceased. The deceased when desired to see her mother,

the Appellant told her that she would never be able to go to her.

Secondly, it is alleged that there was a lot of torture meted out to her.

In the name of love she was tortured. Every night the Appellant along

with his friends used to drink at home and also made the deceased

drink. When she refused to drink, she was beaten and also threatened

to be divorced. She further alleged that she has been married to a

dangerous animal who does not even permit her to speak to the

neighbours. Thirdly, she has alleged that she is expecting and the

Appellant refuses to accept the child to be his and there cannot be a

greater slur than this for a girl. She states that she is pious but she will

have to live with this slur throughout her life. Though in the rest of the

letter she only desires to meet her family and expresses her love for

them, however, an important fact which is also stated is that it has been

one month and fifteen days that she has not got any news from her

mother and that the deceased had become a burden on her and that is

why she married her and now her family must be in peace. In the form

of the dying declaration, the deceased has expressed her inner self by

stating that she had real love for her parental family but she had

become a burden on them and so was married but even after marriage

she got no solace.

7. From a reading of the dying declaration, the third allegation that is

the Appellant refusing to accept the foetus in the womb of the deceased

as his child and thus doubting her chastity appears to be bone of

contention. In this regard it would be relevant to note the testimony of

PW4 Dr. Chanderkant who conducted the post mortem of the deceased.

On internal examination of the deceased, he noted "Uterus was 260

gms. in weight containing the material of conception having a weight of

190 gms., length about 28 cms. and circumference of the head was 25

cms; Sex was not identified." I find force in the contention of the learned

counsel for the Appellant that the size of this foetus cannot be of a 53

days old foetus. The deceased and the Appellant had been married only

for 53 days and as the Appellant had not fathered the child, he doubted

the chastity of the deceased. Unfortunately, neither the doctor has

opined the age of the foetus nor any question has been put in this

regard. In terms of Section 112 of the Evidence Act, a statutory

presumption is required to be raised about the legitimacy of the child

born during the wedlock. Section 112 reproduces the rule of English law

that it is undesirable to inquire into paternity of the child when mother is

a married woman and husband had access to her. Where it is shown

that during the time the child could have been begotten, the husband

had no access to the wife, no presumption of legitimacy can arise.

Where it is established that at the time of marriage the bride was

pregnant it ipso facto vitiates the marriage unless the opposite party

proves that this fact was within the knowledge of the bride groom at the

time of marriage. Presumption of legitimacy though strong is

rebuttable. Moreover, this presumption is to be raised to prevent the

child born from being bastardised. The Appellant has been convicted for

an offence under Section 306 IPC for his conduct of doubting the

chastity of the deceased, thus driving her to commit suicide. There is

clearly a reasonable doubt created about the factum of conception

during the subsistence of the marriage thereby giving reason to the

Appellant to disown the foetus in the womb. As per "The Essential of

Forensic Medicine and Toxicology" by Dr. K.S. Narayan Reddy; the age

of the foetus in its different stages is shown as:

"End of third month: Length nine cm; weight thirty g. The eyes are closed and the papillary membrane appears. Nails appear and the neck is formed.

End of Fourth month: Length 16 c.m; weight 120g. Sex can be recognized. Lanugo hair is seen on the body. Convolutions begin to develop in brain. Meconium is found in the duodenum.

End of Fifth month: Length 25 c.m; weight 400 g. Nails are distinct and soft. Light hair appears on head. Skin is covered with vernix caseosa. Meconium is seen at the beginning of the large intestine."

8. Thus, it is apparent that the age of foetus is more than four

months and less than five months. At this stage it would also be

relevant to observe the opening statement of the deceased in her

suicide note wherein she states that she had become a burden on her

family and that is why she had been married and now those people

would be in peace. The deceased has described the Appellant as a

dangerous animal because he did not let her speak to the neighbours.

However, in her dying declaration she states that after coming here, she

has met a family and treats him as her elder brother. Thus, it is

apparent that she was not forbidden from meeting people. The only

allegation which now remains is that the Appellant with his friends drank

every evening and forced the deceased to drink and on refusing beat

her and threatened her to divorce. The same cannot be said to be a

willful conduct so as to instigate or abet the woman to commit suicide

particularly in the light of the fact that she is a hypersensitive person

who describes the husband as a dangerous animal for not permitting her

to speak to the neighbours. As held in various decisions, the standard of

test to be applied is that of normal and prudent person and not a

hypersensitive person. Thus, the Appellant is entitled to the benefit of

doubt for the offence punishable under Section 306 IPC.

9. As regards the commission of offence punishable under Section

498A IPC, learned counsel for the Appellant has strenuously argued that

the allegations made in the dying declaration do not amount to cruelty

to the extent that she would be driven to commit suicide or cause grave

injury or danger to life, limb or health. If a woman is forced to drink and

on her refusal beaten and threaten to be divorced, especially when she

is pregnant, even a single instance of this conduct is a willful conduct

which causes grave injury and danger to her life, limb and health. Thus,

the Appellant is guilty of the offence punishable under Section 498A IPC.

10. The appeal is partly allowed. The Appellant is acquitted of the

offence punishable under Section 306 IPC. The conviction and sentence

for offence punishable under Section 498A IPC is upheld. The Appellant

has already undergone imprisonment for a period of one year, eight

months and six days and has also paid the fine. His bail bond and

surety bond are discharged.

(MUKTA GUPTA) JUDGE

JANUARY 07, 2011 mm