Tarun Kanti China vs The State

N.K. Batabyal, J.—This appeal is directed against the judgment dated August 12, 1988 passed by the Additional Sessions Judge, 2nd Court, Howrah, convicting the Appellant for an offence u/s 306 Indian Penal Code and sentencing him to suffer R.I. for five years and to pay a fine of Rs. 500.00 i.d. to suffer R.I. for six months more and also for an offence u/s 498A of the Indian Penal Code and sentencing him to suffer R.I. for 3 years and to pay a fine of Rs. 500.00 i.d. to suffer for six months more.

The prosecution case, in short, is that the victim-girl, Papia was married with the Appellant on December 10, 1982 according to Hindu rites and customs and after marriage she went to reside at her matrimonial home at Howrah where the Appellant lived with his parents. Dowry as demanded by the Appellant and his family was paid by Papia''s father at the time of marriage. A few months after the marriage, the Appellant and his parents began to put pressure upon Papia for more dowry in various forms. When the pressure be came unbearale, Papia reported it to her mother and sister. Her father was unable to meet the further demand. Due to the torture and negligence of the Appellant and his parents, Papia lost her first child. As the torture went on unabated, Papia committed suicide by hanging on February 23, 1986 at the residence of the Appellant. On getting the information, father of Papia (informant of the case) rushed to the place of occurrence with other members of the family and found Papia lying dead on a cot in her room. A local doctor was called. He found her dead. Police was informed and an unnatural death case was started.

But as the police did not take any step regarding the unnatural death case, father of Papiya filed a petition of complaint before the Sub-Divisional Juditial Magistrate, Howrah on March 3, 1986 and the learned Magistrate directed the Officer-in-Charge, Bantra P.S. to treat the same as F.I.R. u/s 156(3) Code of Criminal Procedure. As a result, Bentra P.S. case No. 2 dated March 8, 1986 was started and investigation taken up. On completion of investigation charge-sheet was submitted on May 20, 1986 under Sections 306/34 and 398A of the Indian Penal Code. After commitment, the learned Additional Sessions Judge, Howrah, framed charge u/s 306/34 and Section 498A of the Indian Penal Code against the Appellant and two others. The accused persons pleaded not guilty to the charge. The learned Trial Judge has been pleased to find, on trial, accused Tarapada Chine and Gita China (parents of the Appellant) not guilty of the offence charged and acquitted him. But the learned Trial Judge has found the Appellant guilty of the offence u/s 306 and u/s 498A of the Indian Penal Code, and has sentenced him to suffer rigorous imprisonment for 5 years and to pay a fine of Rs. 500.00 i.d., to suffer R.I. for 6 months more for the offence u/s 306 Indian Penal Code, and to suffer R.I. for 3 years and to pay a fine of Rs. 500.00 i.d., to suffer R.I. for 6 months more for the offence u/s 498A Indian Penal Code.

Being aggrieved by and dissatisfied with the judgment and order of conviction and sentence passed by the learned Court below the Appellant has come before this Court alleging inter alia that the learned Judge failed to consider the various infirmities in the prosecution evidence, that the judgment is vitiated by reason of non-consideration of materials which have been recited in cross-examination of the prosecution witnesses that the ingredients of the offences charged have not been established and therefore, the conviction thereunder is not maintainable in law.

It has been submitted by the learned State advocate defending the judgment that there is no infirmity in the judgment impugned by the Appellant and therefore, there is hardly any scope for interfering with the said case.

Mr. Dutta has drawn the attention of the Court to the last paragraph of internal page 16 of the impugned judgment which reads as follows:

As regards the physical cruelty, it has, however, not been proved beyond doubt, that the accused person or anyone of them subjected Papiya to physical cruelty leading to her suicide on 23.2.86.

Mr. Dilip Dutta, learned Senior Advocate has submitted that the learned Court after considering the facts and circumstances and the probabilities of the case has come to the conclusion that victim Papiya was subjected to mental torture of cruelty by her husband, the Appellant which prompted her to take her own life by hanging on February 23, 1986 at her husband''s house. According to Mr. Dutta, there is absolutely no evidence in this case, to come to the conclusion that the victim house-wife was subjected to mental torture or cruelty. On the contrary, it has been submitted that the girl committed suicide as she was mantally devastated by the disclosure that her father had a mistress and he had illegitimately challenged by that mistress whom he had given a house also. According to the defence, this was the real reason behind the committing of suicide by Papiya. The husband and the members of her family have been fasely implicated in this case, taking advantage of the unnatural death of Papiya at the residence of her husband.

There is no dispute about the fact that Papiya was married with the Appellant on December 10, 1982 according to the Hindu rites and customs. There is also no dispute about the fact that Papiya committed suicide at her matrimonial home on February 23, 1986. In this case, the parents of Papiya and the other members of her family and the relative of their family have been examined as prosecution witnesses along with other formal witnesses including the police officers and the Doctor holding the post-mortem examination over the dead body of the victim. Mr. Netai Ch. Dey (P.W.-1), father of Papiya has stated that after marriage, he found that his daughter Papiya was living happily at her father-in-law''s house for about 8 to 10 months. Thereafter, he found that the daughter is not happy there. He asked her but she did not say anything.

It appears from a perusal of the relevant papers and the submissions of the learned Lawyers of both sides that there has been a gradual unfolding of the prosecution case. In the First Information Report (Ext. 4) dated March 8, 1986, the occurrence took place on February 23, 1986 at the house of the Appellant. Shri Netai Chandra De (P.W.1) who is the father of the helpless housewife lodged the First Information Report. Although it has been stated in the First Information Report that there was illegal pressure upon Papia, the deceased house-wife to bring more dowry, but there is no particular mention about the persistent demand of the in-laws to get the Second storey of the house where they (the in-laws) lived constructed by the father of Papia. It is undoubtedly true that all the details of the occurrence need not be given in the First Information Report, but the main plank of the prosecution case is the demand of dowry in the form of building another story to the house where the in-laws lived. This story of demand for dowry unfolds for the first time in the deposition of Netai (P.W.-1) who has stated ''after 6 to 7 months, I came to know from Paramita that Papia''s husband, father-in-law and mother-in-law pressed Papia for raising a house for Papia at 1, Madhusudan Pal Chowdhury Lane, and that for that Papia was rebuked and tortured by her husband father-in-law and mothet-in-law and that she could not bear that. After coming to know of those facts, I went to my daughter''s husband''s house and told my daughter to tell her father-in-law and mother-in-law that my business condition is not good at that time and that after my business condition is good, I will arrange for raising a house. Thereafter, one day, I went at Papia''s house at 1, Madhusudan Pal Chowdhury Lane with an Engineer for measurement and cost for raising the structure. Thereafter, after 4 to 5 months, I came to know from Paramita that Papia was not given food and that her in-laws and husband abused her and they also assaulted Papia as there was delay for raising the house.

Paramita (P.W.-3) is the third sister of Papia. She is the star witness on the prosecution side. She has stated that Papia was the youngest sister. She saw Papia in a happy condition for 8/9 months after marriage. Paramita was a frequent visitor to Papia''s house. Thereafter, she found Papia melancholy and depressed. Things went on like this for 5/6 months more. Then one day, P.W.3 met Papia at her father''s house. On persistent request, Papia told her that in her father-in-law ill-treated and abused her. They did not give her proper food. Her husband tortured and assaulted her. After further enquiry, Papia told her that as her father had not arranged for raising the second storey construction for Papia though he had made so far her elder sister, for that reason Papia was ill-treated and tortured. P.W. 3 has stated that she did not disclose this fact to her father at that time. Neither did she disclose this fact to her father at any time as she knew that her father would make the necessary arrangements for her two sisters and her brother at the proper time. After about 11/2 months, P.W. 3 went to Papia''s house. She saw Papia''s face pale and she began to cry. She repeated the same story of torture for the same reason. At that time, P.W. 3 told Papia''s mother-in-law that Papia''s mental condition was becoming worse due to torture and abuse. P.W. 3 told the mother-in-law to talk about dena paona (dowry money) with her father. P.W. 3 has further stated that the week before Papia''s death, the 4 daughters and their respective husbands were invited to the house of Netai (P.W. 1). Papia came late with her husband. At that time, the 3 sisters and their mother were in the kitchen. Papia told her mother at the kitchen, ''I am fed up by their torture''. Papia got this information from her mother. After some time, Papia''s husband came to the kitchen and threatened Papia by saying, ''For this reason, I told you that I would not come. Remember, this is your last visit to this place''. P.W. 3 was there with her mother at that time. Papia was taking her meal. She half-finished her meal and got up. Then P.W. 3 called Papia outside and asked why she was treated like that. Papia told, ''she could no longer bear with the torture and ill-treatment. Two alternatives are appear to me, either to return to her father''s house or to bid good bye to this world''.

This witness (P.W. 3) in her cross-examination has stated that she cannot remember whether she stated before the I.O. that Papia told P.W. 3 and her mother (P.W. 2) at Papia''s house that as P.W. 1 did not make any arrangement for raising the second storey of her husband''s residence, so she was tortured by her husband and mother-in-law. Paramita (P.W. 3) also cannot remember whether she stated before the I.O. (P.W. 11) that on the Sunday before she committed suicide, Papia told her in the kitchen of her mother that ''I am fed up by their torture'' or that she stated ''she could no longer bear with the torture and ill-treatment. Two alternatives are open to me: either to return to my father''s house or to bid good-bye to this world''. Neither can P.W. 3 remember whether she stated before the I.O. that the Appellant threatened Papia that evening in the kitchen saying, ''For this reason I told you that I would not come. Remember, this is your last visit to this place''.

From the evidence of the I.O. (P.W. 11) it appears that P.W. 3 did not state any of the things as stated by her above. It goes without saying that only the material facts in the statement of the witnesses examined are to be taken note of by the I.O. under the Explanation to Section 162 Code of Criminal Procedure, any omission to state a fact or circumstance in the statement referred to in Sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission to a contradiction in the particular context shall be a question of fact.

The question whether the omission to state the facts before the I.O., in the facts and circumstances of the case, will amount to contradiction will be taken up for discussion of a later stage after an analysis of the evidence of P.W. 2 (mother of Papia). This much is certain from the above discussion that P.W. 3 did not tell anything about the alleged torture and assault on Papia to her father (P.W. 1). The absence of any reference to the demand for arranging a new story in the residence of the Appellant in the First Information Report, in this context is very significant.

Smt. Annapurna Dey (P.W. 2), mother of Papia has stated that after her marriage, Papia lived happily for 8/9 months. Thereafter she found Papia remained un-usually silent. After much pursuation, one day Papia told her that on her parents had arranged for building a house for elder sister, so the Appellant and his parents told her to her father and mother to build a storey for Papia. After that one day, P.W. 2 went to the house of Papia and told her mother-in-law that Papia''s father would make a house for Papia as he had done for other daughters. After 5/6 months, P.W. 2 went with P.W. 3 to the house of Papia. At that time, on enquiry, she learnt that the Appellant and his parents tortured Papia as the new storey was not built. The Appellant also asked her to bring money from her father.

P.W. 2 has further stated that Papia last came to her house on the Sunday before her death. On that day, all the daughters and their respective husbands were invited to the house of P.W. 2. On that day, P.W. 2 and P.W. 3 had talks with Papia. In the presence of P.W. 2, the Appellant threatened Papia by saying that evening that ''he would feed her for her life''. Thereafter, P.W. 2 learnt from Papia that very day that as Papia''s father was not making the new construction so her husband and in-laws were abusing her in filthy language and that she had no other alternative than to commit suicide.

But all these statements are conspicuous by their absence in the statements of this witness recorded by the I.O. (P.W. 11). The very same point arises whether these omissions are contradictions.

Abetment of suicide is punishable u/s 306 Indian Penal Code. The presumption u/s 113A of the Evidence Act arises when a woman commits suicide within 7 years from the date of marriage and when her husband or any relative of her husband had subjected her to ''cruelty'' within the meaning of Section 498A of the Indian Penal Code. In the case at hand, the suicide of Papia has taken place within 7 years of the marriage. To discharge the initial onus, the prosecution has to prove that she was subjected to cruelty by her husband or any relative of her husband. As regards cruelty, the Learned Trial Judge has found that it has not been proved beyond reasonable doubt that the Appellant or his parents subjected Papia to physical cruelty. So the only issue that remains is whether there was mental cruelty on Papia. Mental torture from which cruelty arises flows from some external stimulus. Only in case of mental patients, such external stimulus may or may not be present. That possibility can be eliminated in this case. There is nothing in writing in this case documenting the alleged mental agony and pain experienced by the innocent house-wife. From the side of the prosecution, one explanation has been given for the absence of any epistolar evidence. The house of the Appellant is only 30 minutes walk from the house of Papia''s father. The explanation is quite plausible. The only evidence comprises of the words of the dead person and the sworn testimony of the persons before whom those words were spoken. Now the question arises whether the ''speaking by the dead person'' as stated above by the witnesses comes within the ambit of Section 32(1) of the Evidence Act. In this connection, the decision of the Apex Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, has been cited by the learned Advocate for the Appellant. In that case is has been held that test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a strait-jacket Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it was, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. For instance, when the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible u/s 32 of the Evidence Act. In this view of the matter, in the case at hand the alleged statements of dead person (Papia) relating to the cause of her death are relevant in the facts and circumstances of the case. Thus under the Explanation to Section 162 Code of Criminal Procedure, the statements of Papia relating to the cause of her death (which at that time could not be foreseen) made within one week or so of the death of Papia are relevant. The omission of such statements in the statements recorded u/s 161 Code of Criminal Procedure amounts, therefore, to contradiction.

The sworn testimony of P.W. 2 or P.W. 3 about the statements attributed to Papia within one or two months before her death relating to the mental torture and sense of frustration due to the behaviour of the husband or her in-laws are to be taken with a grain of salt as these are all subsequent developments. For the reasons the testimony of P.W. 1 bearing on the point of mental torture based upon the statement of Paramita (P.W. 3) looses all weight. Annapurna (P.W. 2) has stated in her deposition that she narrated to her husband (P.W. 1) about the tales of torture on Papia by her in-laws for not. arranging for construction of a new floor. But P.W. 1 has not stated that he derived any information about the matter from P.W. 1. In the result, there is no evidence, direct or circumstantial about the perpetration of mental torture upon Papia by the husband or the in-laws. The prosecution has to prove its case by cogent and reliable evidence. In this case, there is no evidence to prove''the prosecution case as made out by the P.W.s.

A few words, in this connection, are necessary for the defence stand. The general principle is that the defence need not prove its case. It is sufficient, if the defence case is plausible. In the instant case, the defence side has come with a case which is furthest from a plausible stand for the reasons given below. The defence suggestion to the P.W.s is that Papia committed suicide after learning from some source that her father had a mistress, was father to a baby by the mistress whom he had bought a house. After knowing this, she became so much upset mentally that she committed suicide to save her from the ignominy. In support of their stand. The three defence witnesses have been examined and some papers have been exhibited. Shri Ashoke Banerjee (D.W.1) proved an original deed of sale marked ''C. But he has no knowledge about the original sale deed. He can''t say who wrote it or who executed it. So it is not understood how the contents of the deed are proved according to law. No Court can take judicial notice of the contents of such a deed. Shri Subhash Mukherjee (D.W. 2) is an employee of Maternity Bunglaw of Howrah. He has proved an entry in the original birth certificate register of the Maternity Bungalow. The entries have no statutory presumptive value. The D.W. 2 has not proved the handwriting in the register. Therefore, the Court cannot take judicial notice of the entries. The oral testimony given by this witness is based on the register. He has got no personal knowledge about the entries. So there is no evidence at all that any one gave birth to a female baby as per defence case. To make the defence case plausible, there must be some factual basis for the contention. The defence case is just a fiction have no basis at all.

The fact that the defence case is untrue does not render the prosecution case automatically acceptable. The prosecution has to stand or fall on its own strength. It has already been discussed above that the prosecution side has failed to bring home the charge to the Appellant-accused. It is undoubtedly true that a young house-wife does not put an end to her life for no reason. But in a criminal trial, the prosecution has to prove that the offence was committed at the place in the manner by the accused as stated in the prosecution version. In this case, the prosecution has signally failed to prove its case. In the result, the appeal succeeds.

The appeal is accordingly allowed. The impugned judgment and order of conviction and sentence are set aside. The Appellant be set at liberty at once.