Ananta Kumar Mondal vs State of West Bengal & Anr.

Shivakant Prasad, J.

The instant appeal is directed against the judgment and order of conviction dated 15.02.1991 passed by the Additional Sessions Judge, Contai, District-

Purba Medinipur in Sessions Trial No. X of June, 1990 convicting the appellant under Sections 498A of the Indian Penal Code and sentencing him to

suffer rigorous imprisonment for three years and to pay a fine of Rs. 3,000/- in default to suffer rigorous imprisonment for three months inter-alia, on

the grounds that the order of conviction is bad in law and not warranted by the facts and circumstances of the case and the prosecution evidence is

wholly bereft of any proof that the accused persons either by express words or conduct, instigated Arati to commit suicide. Therefore, the learned

Judge was wrong in convicting the appellant for charge under Section 498A of IPC, when he was acquitted of charge under Section 306 IPC.

Short question which falls for consideration is whether the charges under Sections 498/306 IPC are independent of each other and acquittal of one

would lead to acquittal of the other as well. It is submitted Mr. Kushal Kr. Mukherjee, Amicus Curiae that the learned Judge has acted illegally in

treating the statements of P.W.s. 3, 4, 5 and 6 under Section 161 Cr.P.C. as substantive evidence and also submitted that when the prosecution

declares a witness hostile it exhibits an intention to require the court not to accept the version of the hostile witness as given in the court on oath.

It was wrong to hold that the presence of Sandhya in the house of the appellant resulted in torture to Arati but there was no evidence to show that the

appellant was living with Sandhya illicitly. Now the point for decision is as to whether the prosecution has been able to substantiate the charge leveled

against the appellant and whether the judgment impugned is tenable in law.

To speak precisely, the prosecution case leading to the instant appeal is that Arati Mandal was married to the appellant Ananta Mandal in 1384 B.S.

After marriage, they lived happily and begot a daughter and a son, aged about 5/6 years and 2 years respectively in the year of occurrence. The lady

accused Sandhya alias Bishnupriya Pal was the elder widowed sister of the deceased Arati and P.W.-4 Kalipada was their brother. They lost their

parents in their early childhood and were brought up by the maternal uncle, the de facto complainant.

On the death of the husband of the accused Sandhya, she resided in the house of her house maternal uncle. About six months prior to the date of

occurrence on 14.4.1987, the appellant took Sandhya to his house and developed illicit intimacy with her to which the deceased Arati used to protest

and on her such protest both the accused persons used to inflict mental and physical torture on her. In the midnight of 14.4.1987 one Bhanu Jana

(P.W.-3) a co-villager of the accused Ananta informed the defacto complainant that on 14.4.1987 the accused persons tortured the deceased Arati

and being unable to bear such torture she committed suicide at 10.00 P.M. by taking poisonous insecticide.

On getting that news the de facto complainant went to the house of the accused and verified the facts from the villagers of the accused Ananta and

then lodged the written complaint at about 09.05 hours on 15.4.1987 with Patashpur P.S. On the basis of which Patashpur P.S. Case No. 5 dated

15.4.1987 under Sections 498A/306 of Indian Penal Code was started against the appellant and on usual investigation S.I. Sambhunath Hazra, I.O.

submitted Charge-sheet against the appellant.After framing of charge under Sections 498A/306 of Indian Penal Code against the appellant, trial

started and on closure of the prosecution evidence, the appellant was examined under Section 313 Cr.P.C. to which he declined to adduce any

defence witness.

Defence is one of denial of charges leveled against him as it emerges from the trend of the cross-examination of the prosecution witnesses and the

statement of the appellant made during examination under Section 313 Cr.P.C. P.W.-1 and P.W.-2 are the maternal uncles of the deceased, who

have stated on oath that after the death of Gunadhar Pal, the husband of Sandhya @ Bishnupriya, she came to his house six to seven months prior to

death of Arati. The appellant took said Sandhya @ Bishnupriya to his house since then she had been living in the house of appellant. Due to her

presence in the house of appellant, domestic bickering started in his family as Arati did not feel well with the said accused Sandhya and did not like

that Sandhya who was her full sister should reside in their family. So, P.W.-1 went twice to bring back said Sandhya from the house of appellant but

she did not agree to leave the family of the appellant. P.W.1 was informed by Bhanu Jana, (P.W.3) a neighbour of the accused at 10.00 P.M. in the

night of 30th Chaitra, 1993 B.S that said Arati had committed suicide by taking poison but P.W. 3 has been declared hostile for not having

corroborated the prosecution case.

In cross-examination P.W.-1 stated that on some occasion after Sandhya went to the house of accused Ananta, Arati came to his house and reported

to him about the torture on her by accused Ananta. When she so reported to him, his cousin brother Hrishikesh P.W.-2 was present. But he did not

divulge the fact of such torture to anybody else of his village. Just on the day next to the date of such reporting by Arati to him, P.W.1 went to the

house of accused Ananta Mondal.

P.W. 2 has stated that Sandhya had developed illicit intimacy with said Ananta. She also reported to him that due to her such affairs there arose

domestic bickering and quarrels in the family, hearing so, P.W.-2 along with P.W.-1 went to the house of accused Ananta on two occasions to bring

Sandhya back to their house but Sandhya did not yield to their request to leave the house of accused Ananta. P.W.-2 testified the fact that he did not

see Ananta to take Sandhya to his house from the house of P.W.-1. He simply heard from P.W.-1 within a week of Ananta taking Sandhya to his

house. So, his evidence is considered as hearsay. P.W.-2 did not state to the I.O. that Arati had committed suicide by taking poison on being assaulted

by accused Ananta and Sandhya in the evening of 14.4.1987 as he was not examined by the I.O. Therefore, much reliance cannot be placed on such

hearsay evidence.

P.W.-3, P.W.-4, P.W.-5 and P.W.-6 appear to have been declared hostile by the prosecution. According to P.W.4, accused Sandhya is his elder sister

and deceased Arati is his younger sister and about three years ago from the date of his deposition on 1st December, 1990, his elder sister Sandhya

came over to the house of his mama P.W.-1 after the death of her husband. After staying in the house of maternal uncle for few months, his elder

sister, Sandhya left for her husband’s house and still living there. According to P.W.-4 the deceased died by taking poison being unable to bear the

pain after child birth. Such pain developed after about six months of child birth. In cross-examination P.W.4 stated that his elder sister Sandhya left the

house of his mama because P.W.-1 misappropriated the pension money of Sandhya. This fact finds corroboration by P.W.-5 and P.W.-6 that due to

the pain of the abdomen after the child birth Arati had committed suicide by taking poison.

P.W.-9 Dr. S.K. Dey held Autopsy and found bloody forth coming out through nose and mouth and on opening the body he found stomach containing

food material smelling some chemicals and she was found to have carried for five months and testified the fact that the death was ante mortem and

suicidal in nature due to poison. It goes to show that the deceased was expectant mother for five months.

It is settled law that when the prosecution declares a witness hostile, it exhibits an intention not to rely on the evidence of such a witness and

therefore, the version of such hostile witness cannot be treated as the version of the prosecution although it would be seen that no suggestion was

given by the defence to the un-hostile P.W.s 1 and 2 or even to hostile witnesses P.W.-3 Bhanu Jana about such abdominal pain of Arati.

My attention is invited to decision in Tamal Sengupta @ Raja V. State of West Bengal reported in (2013)2 C Cr LR (Cal) 432 wherein decision in

case of Girdhar Shankar Tawade (2002 C Cr. LR (SC) 653) was relied on to argue that if suicide is ruled out, then applicability of Section 498A can

be had only in terms of explanation (b) thereto which in no uncertain terms records harassment of the woman. The Statute itself clarifies it to the

effect that it is not every such harassment but only in the event of such a harassment being with a view to coerce her to any person related to her to

meet any unlawful demand for any property or valuable security or is on account of failure by her to any person related to her to meet such demand.

In the present set of fact, there is total absence of any of the requirements of the Statute in terms of Section 498A IPC.

Appellant has been acquitted of charge under Section 306 IPC . Though not by itself a ground for acquittal under Section 498A but some cogent

evidence is required to bring home the charge of Section 498A as well without which the charge under Section 498A cannot be sustained.

In the present case, I find that the learned Additional Sessions Judge has negated suicide committed by the deceased Arati ruling out the presumption

which arises as per Section 113A of Indian Evidence Act. I am of the considered view by giving an anxious consideration to the facts and

circumstances of the case discussed above that merely because the deceased woman committed suicide and the fact that she has been subjected to

cruelty by her husband does not automatically give rise to the presumption that the suicide has been abetted by the husband.

In the result, the appeal being CRA 94 of 1991 is allowed. Consequently, the judgment and order of conviction dated 15.02.1991 passed by the

Additional Sessions Judge, Contai, District- Purba Medinipur in Sessions Trial No. X of June, 1990 convicting the appellant under Sections 498A of the

Indian Penal Code and sentencing him to suffer rigorous imprisonment for three years and to pay a fine of Rs. 3,000/- in default to suffer rigorous

imprisonment for three months are hereby set aside and the appellant be set at liberty at once.

A copy of this judgment along with the Lower Court Record be sent to the learned Trial Court forthwith. A copy of this Judgment be also sent to the

Superintendent Correctional Home. Urgent copies of this judgment be supplied to the State free of cost at once.