Arati Dam vs State of West Bengal

Girish Chandra Gupta, J.—This appeal is directed against a judgment dated 24th May 2001 passed by the learned Sessions Judge, Jalpaiguri, in Sessions Case No. 286 of 2000 by which the Appellant Arati Dam was convicted of an offence punishable u/s 306 of the Indian Penal Code. By an order dated 25th May, 2001 she was sentenced to suffer rigorous imprisonment for 8 years as also to pay fine of Rs. 10,000/-, in default of payment she was sentenced to suffer further simple imprisonment for a period of two years. It was directed that in the event the fine is paid the same shall be made over to the father of the deceased Shri Nripendra Chandra Mallick who is the Respondent No. 2 in the appeal.

The facts and circumstances of the case briefly stated are as follows:

The Appellant Arati Dam entertained a belief that her son Sanjoy was having an affair with Bimala, a young woman. Sanjoy used to visit the house of Bimala regularly for watching television. On 15th August 1989 the Appellant called at the house of Bimala and took strong exception to the said Bimala, her parents and the family members permitting her son Sanjoy to visit their house. The parents of Bimala appear to have told her that in future they would not permit Sanjoy to have access in their house. On 16th August 1989 the Appellant Arati abused the young woman Bimala in a most scurrilous and slanderous language calling her a whore and instigated her to die by hanging. She also offered to pay the price of a rope if her parents were unable to pay for the same. Shortly thereafter Bimala locked herself in one of the rooms of her house and committed suicide by hanging, applying her orna as a noose. Police was informed. Inquest was held. The dead body was cremated after postmortem examination. The FIR was, however, lodged by the father of the victim on 3rd September 1989 explaining therein that the shock had incapacitated him both physically and mentally to lodge the complaint promptly. The following questions of fact arise in this case.

1) Whether Sanjoy, son of the victim, was a regular visitor to the house of the victim for the purpose of watching television?

2) Whether the Appellant Arati viewed the visit of her son Sanjoy to the house of the victim with any amount of suspicion?

3) Whether the Appellant Arati had taken exception to the victim and her family members permitting Sanjoy to have access to their house?

4) Whether the Appellant Arati instigated the victim Bimala to commit suicide?

Mr. Basu, learned Advocate appearing for the Appellant principally confined his submissions to the fourth issue. But in order to satisfactorily deal with the fourth issue some analysis of the evidence in respect of the issues is necessary. We shall therefore analyse the evidence and answer the first, second and the third issue. The fourth issue shall be answered after considering the submissions of Mr. Basu.

1) Whether Sanjoy, son of the victim, was a regular visitor to the house of the victim for the purpose of watching television?

P.W. 1 Nripendranath Mallick in that regard deposed as follows:

I have a T.V. in my house. The neighbouring boys usually came to my house to watch T.V. Sanjoy Dam also used to come to my house to watch T.V. frequently.

There is no cross-examination directed against the aforesaid deposition of the P.W. 1.

P.W. 2 in that regard deposed as follows:

Sanjoy Dam, the son of the accused used to come to our house almost regularly to watch T.V. because there was/is no T.V. in the house of the accused.

No cross-examination is directed against this part of the evidence of the P.W. 2.

P.W. 3, a neighbour of the deceased, deposed in this regard as follows:

Sanjoy Dam, the son of the accused used to visit the house of P.W. 1 almost regularly to watch T.V. programme.

P.W. 4, another neighbor of the deceased, deposed in that regard as follows:

Sanjoy used to visit the house of P.W. 1 everyday to watch T.V.

No cross-examination is directed against this part of the evidence of the P.W. 4.

P.W. 5, a hostile witness, deposed in that regard as follows:

Sanjoy used to visit the house of P.W. 1 regularly for the purpose of watching T.V.

P.W. 6, another neighbour, deposed in that regard as follows:

I know Sanjoy Dam, the son of the accused. Sanjoy used to visit the house of P.W. 1 regularly to watch T.V. I am a next door neighbour of P.W. 1.

P.W. 7, a friend of the deceased as also a neighbor, deposed in that regard as follows:

I know Sanjoy Dam, the son of the accused. I am a next door neighbor of P.W. 1 Sanjoy used to go to the house of P.W. 1 to watch T.V.

Considering the consistent evidence of the host of witnesses the first point is answered in the affirmative.

2) Whether the Appellant Arati viewed the visit of her son Sanjoy to the house of the victim with any amount of suspicion?

P.W. 2, the victim''s elder brother''s wife, deposed in that regard as follows:

As he used to visit our house almost regularly the accused thought Bimala was having an illicit affair with her son Sanjoy.

There is no cross-examination on this point. On the contrary the P.W. 2 was suggested on behalf of the defense that the victim Bimala was of unsound mind and/or was mentally disbalanced.

P.W. 3 deposed in that regard as follows:

The accused, therefore, thought that her Sanjoy was having an affair with Bimala Mallik.

No cross-examination was directed against this part of the deposition.

P.W. 4 deposed in that regard as follows:

The accused did not like her son''s going there. She thought that Bimala Mallik was having an illicit affair with her Sanjoy.

No cross-examination was directed against this part of deposition of the P.W. 4.

P.W. 5, a hostile witness, deposed in that regard as follows:

The accused did not like her son''s going to the house of Bimala and she suspected that an affair was going on between Bimala and her son Sanjoy.

No cross-examination was directed against this part of deposition of the P.W. 5. However P.W. 5 was suggested that the victim used to visit all the houses of the village.

P.W. 7 deposed in that regard as follows:

The accused never liked her son''s going to the house of P.W. 1.

He was suggested that the victim was beaten up by her parents in the morning of the day. Thereafter she committed suicide.

Considering the evidence adduced by the witnesses we have no doubt in our mind that the second issue has also been firmly established and therefore is answered in the affirmative.

3) Whether the Appellant Arati had taken exception to the victim and her family members permitting Sanjoy to have access to their house?

P.W. 1, father of the victim, deposed in that regard as follows:

One day before the date of incident the accused came to our house and threatened us with dire consequences because she thought that my daughter Bimala was having an illicit affairs with her son Sanjoy.

There is no cross-examination except for suggestion that the accused never suspected anything between the deceased and her son Sanjoy.

P.W. 3 corroborated the evidence of the P.W. 1. He deposed in that regard as follows:

On the date of incident and one day before, the accused threatened Bimala with dire consequences. The accused directed Bimala not to have anything to do with his son Sanjoy.

No cross-examination was directed against this part of the evidence of the P.W. 3.

Considering the unchallenged testimony of the witnesses the third issue is also answered in the affirmative.

We shall now notice the submissions advanced by Mr. Basu. His first submission was that the P.W. 1 the father of the victim did not explain the delay in lodging the FIR. We already have indicated that in the written complaint the delay has duly been explained. It is indicated therein that the incident had incapacitated the complainant (P.W. 1) both physically and mentally. The written complaint was proved by him and was marked exbt. 1. P.W. 1 stated that the contents of the written complaint were read over and explained to him and he signed the same after understanding the meaning and purport thereof. Therefore the explanation appearing from the written complaint is also deemed to have been proved particularly in view of the fact that there is no cross-examination nor even a suggestion that the written complaint was signed by him without understanding or knowing the meaning or purport thereof. The suggestion to the contrary is that a false report was filed because of enmity between the de facto complainant and the husband of the accused/Appellant. The enmity suggested to the P.W. 1 was further made to appear during cross-examination of the P.W. 2 Shrimati Shilpi Mallick who is the victim''s elder brother''s wife wherein she admitted that the husband of the accused had filed a criminal case against her husband and the father-in-law. The father-in-law is the P.W. 1. The enmity between the parties lends credence to the case of the prosecution rather than destroying it in the facts and circumstances of the case.

The second submission advanced by Mr. Basu was that the witnesses to the inquest report were not examined. At the time when the inquest was held the criminal complaint had not been lodged. An unnatural death case was started and the inquest was held. In the inquest report it is stated that the victim committed suicide. What led the victim to commit suicide was not required to be investigated at that stage. We are as such unable to attach any importance to this circumstance and accordingly this point of Mr. Basu is also rejected.

6.1 The third point urged by Mr. Basu was that the officer who conducted the inquest was not examined by the prosecution. The P.W. 11 Shri S.K. Das investigated the case whereas the inquest was conducted by the Assistant Sub-Inspector Shri N.C. Das. The inquest report was tendered and marked exhibit 6 through the P.W. 11 who was acquainted with the handwriting of Shri N.C. Das. During his cross-examination the P.W. 11 was not even suggested that Shri N.C. Das who had conducted the inquest upon the dead body was a material witness or that he had been withheld. We are therefore unable to attach any importance to this submission of Mr. Basu and this submission is accordingly rejected.

The fourth submission of Mr. Basu was that the parents of the victim were not at home when the Appellant allegedly instigated the victim to commit suicide. Only person present at home was the victim''s elder brother''s wife (P.W. 2). She deposed in her examination-in-chief that the instigation took place in the dwelling house of the victim. During her cross-examination she was asked whether she told the I.O. that at about 12 noon the victim was in the house of Shambhu Das to which she answered in the affirmative. Mr. Basu contended that the P.W. 2 has really changed the place of occurrence. If the victim was at that time in the house of Shambhu Das the instigation could not have been made in the dwelling house of the victim. We are unable to accept the submission for the following reasons:

a) P.W. 2 was not asked as to how the victim could have been instigated to commit suicide if she was not present at the house. It is not improbable that hearing the hue and cry raised by the Appellant the victim came back to her house.

b) P.W. 2 is not the only witness. There are other dependable eyewitnesses to the incident namely P.Ws. 3, 4. Even the hostile witness P.W. 6 deposed that he had heard from the neighbors about such instigation by the Appellant. The evidence of the P.W. 7, another hostile witness, leaves no manner of doubt that the victim was present at the house when the scurrilous attack took place upon her. P.W. 7 deposed as follows:

On the date of incident I came out of my house having heard the yelling of the accused. An altercation was going on between the accused and Bimala. Such altercation took place at about 12.00 hours.

The fifth submission advanced by Mr. Basu was that the nature of information including the identity of the informant who brought the factum of suicide to the notice of the police has been withheld which according to him acquires importance in view of the fact that in the inquest report it is recited that the cause which led her to commit suicide is unknown. The inquest report was not signed by the de facto complainant or any member of the family of the victim. Sight cannot also be lost of the fact that the instigation in this case was coupled with a serious stigma to the character of the victim. It is not difficult to visualize the mental condition of the family members of the victim. It is not easy in such circumstances to decide as to what is to be said or what is not to be said. There is evidence on record to show that the inquest started at 15.35 hrs. and was closed at 17.05 hrs. on 16th August 1989 whereas the father of the victim returned home at about 17.00 hrs. on 16th August 1989. The only one present at home was P.W. 2 and may be the mother of the victim who by that time might have returned. We are under the circumstances unable to attach any importance to this circumstance and accordingly this submission of Mr. Basu is rejected.

The sixth submission of Mr. Basu was that the P.W. 3 did not tell the I.O. that the son of the Appellant was a regular visitor to the house of the victim. We already have discussed plethora of evidence on the record on this point and we are of the opinion that nothing really turns on that.

The last submission advanced by Mr. Basu was that the P.Ws. 3, 5, 6 and 7 came to the place of occurrence only after the incident had taken place. The P.W. 3 during his cross-examination was not suggested that he did not witness the incident of instigation. On the contrary he was suggested that the accused never abused the victim. Therefore the fact that the P.W. 3 was at the place of occurrence has not been challenged. The presence of the P.W. 4 was not also challenged during his cross-examination. On the contrary he was suggested that the accused did not abuse the victim Bimala in a most filthy language. Therefore the case of the defense was not that the victim was not abused. The challenge was restricted to the language used by the Appellant P.Ws. 5, 6 and 7 turned hostile. But they did not dispute the fact that such an incident of instigation did, in fact, take place. We shall now look into the evidence, as regards instigation, adduced by the witnesses.

P.W. 1, father of the deceased, at the time of instigation was not at home. Similarly the mother of the victim at that time had gone to deposit the bill of electricity.

P.W. 2, victim''s elder brother''s wife, who was present at home deposed as follows as regards the instigation:

On 16.8.99 at about 12.00 hours the accused came to our house and abused Bimala in filthy languages. She said,

When translated in English it would read "You are a prostitute. You are after my son. You should hang yourself and die. If you are incapable to buy a rope, I would pay for it but you should die.

Only cross-examination directed against the aforesaid evidence of the P.W. 2 is restricted to a question as to whether during her statement u/s 161 Code of Criminal Procedure she disclosed the aforesaid fact to the I.O. To which she answered as follows:

I stated to the I.O. that on the date of incident at about 12.00 hours Bimala was in the house of one Sambhu Das and the accused then came and abused Bimala in filthy languages.

The evidence of the P.W. 3 in that regard is as follows:

Thereafter she abused Bimala in filthy languages. She stated

(The English translation in substance is same as indicated above.)

The cross-examination of the P.W. 3 was restricted to a suggestion that the accused never abused the victim which he denied.

P.W. 4 deposed in that regard as follows:

On the date of incident the accused went to the house of P.W. 1 and abused Bimala in filthy languages. She called her whore and said,

(The English translation would substantially be the same except for the addition that this witness deposed that the Appellant had said that if the parents of Bimala were unable to pay for the rope she would buy one for her.)

His cross-examination is restricted to the following suggestion:

Not a fact that the accused did not abuse Bimala in bad languages. Not a fact that accused did not call Bimala a whore and that she was willing to buy Bimala a rope for committing suicide. On the date of incident I was at home and did not go out to do my work. I am a carpenter by profession. Having heard the loud voice of the accused I came out my house and saw her abusing Bimala in filthy languages. Not a fact that the incident did not occur at 12.00 hours. Not a fact that I have deposed falsely.

P.W. 5 went back on what he had told the investigating officer as regards the instigation by the accused Arati. He was declared hostile and cross-examined by the prosecution. During such cross-examination he denied to have made such statement to the I.O.

P.W. 6 similarly went back on what he had stated to the I.O. during investigation as regards instigation by the accused to the victim to commit suicide. He also was cross-examined by the prosecution. During such cross-examination he deposed that he had heard from the neighbors that the accused had instigated the victim to commit suicide in the most filthy, scurrilous and slanderous language which he also repeated in Court.

P.W. 7, similarly became hostile and during cross-examination by the prosecution with the leave of Court, deposed that he had heard from others that the accused had instigated the victim to commit suicide. He also repeated the words which he heard.

From the evidence of the eyewitnesses it is absolutely clear that the Appellant tarnished the character of the victim in a most scurrilous and slanderous language and exhorted her to commit suicide. From the evidence of the witnesses it also appears that the neighbors had assembled. the impact of this verbal attack coupled with the instigation to die leaves no manner of doubt in our mind that the Appellant did, in fact, instigate the victim to commit suicide. Instigation would be enough to bring the offence of the Appellant within the offence of abatement to commit suicide. Reference in this regard may be made to the judgment in the case of Goura Venkata Reddy Vs. State of Andhra Pradesh, wherein Their Lordships held that a person is said to have abetted the doing of a thing when he instigated any person to do that. Therefore the fourth issue is also answered in the affirmative.

Mr. Basu finally relied upon the following judgments.

Mr. Basu commenting upon the absence of any complaint against anyone in the inquest report relied upon the judgment in the case Meharaj Singh v. State of U.P. reported in 1994 SCC 1390 wherein Their Lordships made the following observations:

Even though the inquest report, prepared u/s 174 Code of Criminal Procedure, is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante-timed to give it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the Fir has lost its value and authenticity and it appears to us that the same has been ante-timed and had not been recorded till the inquest proceedings were over at the spot by P.W. 8.

This judgment in our view has no manner of application to the facts and circumstances of the case. In the case of Meharaj Singh Their Lordships were considering whether the FIR had been ante timed. In order to test whether the FIR was actually lodged when it purported to have been lodged Their Lordships made the aforesaid observations which would be evident from the following observations made in paragraph 11 of the said judgment.

We find that in the inquest report which was prepared by P.W. 8 Sultan Singh, the investigating officer at the spot, the number of the FIR or the crime No. has not been given. Even the heading of the case does not find mention in the inquest report. No explanation has been furnished for the omission of these vital matters from the inquest report. Was it because no FIR had actually been registered at the time as alleged by the prosecution and P.W. 8 had reached the spot and, after, some consultations and deliberations it came into existence?

In the present case admittedly FIR was lodged almost 17 days after the incident and the inquest was held. Therefore the observations made in the case of Meharaj Singh (supra) do not lend any assistance to the Appellant.

The second judgment relied upon by Mr. Basu is in the case of Thanedar Singh v. State of M.P. reported in 2001 (4) AICLR 812 for the same proposition. In the case of Thanedar Singh the views expressed in the case of Meharaj Singh (supra) were relied upon to demonstrate that the FIR had, in fact, been ante timed as would appear from the following observations:

A specific suggestion was put to P.W. 10 (S.H.O., Sihonia P.S.) that FIR was prepared 2 or 3 days after the occurrence which, of course, was denied. P.W. 10 admitted that no attempt was made to apprehend the accused on 19th and 20th May. It is significant to note that the crime No. /FIR No. is not to be found in the inquest report (P.6), (P.5) site plan or (P.8) which is requisition sent to the hospital for postmortem. No reference whatsoever is made in exhibit P6 about the information, if any, furnished by P.W. 8 or P.W. 6. All this would support the defense version that FIR (P-10) in which the names of accused were mentioned would have probably come into existence much later.

The third judgment relied upon by Mr. Basu is a Division Bench judgment of this Court in the case of Mobarak Sk. v. State of W.B. reported in 2011 (1) AICLR 321. The Division Bench in that case relied upon the judgment in the case of Meharaj Singh (supra). The Division Bench was trying to ascertain whether the FIR had belatedly been lodged. The submission advanced before the Division Bench was as follows:

Before us one of the very forceful argument for disbelieving the prosecution case against the Appellants is this, although after lodging of the FIR naming the Appellants as the assailants, police came to the spot and held the inquest, still in the inquest report it was noted that the victim was assaulted by some miscreants.

These three judgments do not lend any assistance to the Appellant because admittedly in the case before us the FIR was lodged subsequent to the preparation of the inquest report as already indicated.

The fourth and last judgment relied upon by Mr. Basu was in the case of Ramesh Babu Rao v. Maharashtra reported in 2009 (1) SCC 212 wherein the question for consideration was whether the second FIR could be treated as the first FIR. It is not the case either of the prosecution or of the defense that any earlier FIR was lodged. No such suggestion was given to any of the witnesses including the investigating officer. The police held the inquest on the basis of an UD case which was registered as UD Case No. 60/99. Therefore the judgment in the case of Ramesh Babu has no manner of application.

Mr. Basu contended that why was the FIR not lodged earlier. This question in fairness should have been put to the defector complainant the P.W. 1 when he was in the box which the defense did not. Therefore the only answer, we find, is the explanation given in the FIR that the defector complainant father of the victim was incapacitated both physically and mentally arising out of the shock caused by sudden death of his young child. The FIR has been proved by him. Therefore that is the answer why was the FIR not lodged earlier.

All the points raised by Mr. Basu has thus been disposed of. There is clearest possible evidence to show that the victim, a young woman, was instigated to commit suicide on the basis of a baseless scandalous aspersion on her character. Within couple of hours her dead body was found. We therefore have no manner of doubt in our mind that the view taken by the learned Trial Court is a reasonable view and there is no scope for any interference. The appeal in the result fails and is dismissed.

The Appellant is directed to surrender forthwith and to serve out the sentence inflicted by the learned trial Court. In the event the Appellant does not voluntarily surrender, the learned Trial Court shall take coercive measures to secure her presence.

Lower Court Records with a copy of this judgment be sent down to the learned trial Court forthwith for information and necessary action.

Urgent xerox certified copy of this judgment, be delivered to the learned Advocates for the parties, if applied for, upon compliance of all formalities.

Raghunath Ray

I agree.