Ashim Bose and Others vs State of West Bengal

Toufique Uddin, J.—This appeal arose out of judgment and order dated 18.12.2010 passed by the learned Additional Sessions Judge, 2nd Court, Barasat. North 24 Paraganas in Sessions Trial No. 5(11) 89 u/s 498A/ 306 IPC and sentencing the appellant for three years and to pay a fine of Rs. 2000/- in default to suffer further imprisonment for six months for commission of offence punishable u/s 498A/ 34 IPC and seven years and to pay a fine of Rs. 3000/- in default to suffer imprisonment for four months for commission of offence punishable u/s 306/ 34 IPC. In the background of this appeal the fact in a nutshell is that one Samir Kumar Bose of village Nebadhai, Paschim Dutta Pukur came to I.C., Barasat, North 24 Paraganas on 11.1.87 at 20.05 hrs. and filed a written complaint to the effect that his daughter Sharmila Bose was married with one Pulak Bose in village Nebadhai, Paschim Dutta Pukur, North 24 Paraganas three years back. His daughter Sharmila and Pulak loved each other but the other members of the family used to torture Sharmila mentally even on trifling matters. The accused persons perpetrated torture both mentally and physically on her. Married Sister-in-law of Sharmila, Santa Mitra spoke ill of Sharmila and she could not tolerate it and protested. Santa knocked her down in her room and asked her to go out. After the incident, Sharmila and Pulak quitted the matrimonial house and shifted to a rental house. Subsequently, on repeated requests from the accused persons Sharmila and Pulak again returned to her own matrimonial place. The other accused persons again started torturing Sharmila as she arranged a space in the open corridor for a separate kitchen. The married Sister-in-law and her husband quitted the room which was allotted in their favour in absence of Sharmila. But degree of torture was also escalated by the accused persons on her. On 7.11.87, a quarrel cropped up over the loss of one soap cake and all the members of the family accused Pulak and the maid servant of Sharmila for such loss. On 8.11.87 Noon, Sharmila came back crying to her father''s place. The defacto complainant went to the matrimonial house of Sharmila and saw his son-in-law Pulak was exchanging talks with other accused persons in a closed room. In the evening on the same date, Sharmila handed over one complaint, addressed to the S.P., North 24 Paraganas, to the defacto complainant to post it. On 9.11.87, at about 11.00 hrs., Sharmila on being provoked by the accused persons viz. Shila Bose, Ila Bose, Ashim Bose @ Kaju and Santa Mitra set fire on her person by pouring kerosene oil and lit up by a match stick to commit suicide. Thereafter, she was taken to National Medical College Hospital at Calcutta where she expired at about 21.45 hrs. Just before committing suicide, Sharmila wrote two letters to her parents where she accused all the accused persons viz. her father-in-law, mother-in-law, brother-in-law and both sisters-in-law for inflicting torture on her leading her to commit suicide. Sharmila also gave a dying declaration as recorded by the Police Officer of Beniapukur P.S. over the torture.

A complaint was also lodged by the father of the deceased. After the investigation, the Police submitted charge-sheet u/s 498A/ 306 IPC against the accused persons.

The case was committed to the Court of Sessions by the learned Magistrate.

The learned Court on hearing of both sides framed charges against all the five accused persons u/s 498A/ 306/ 34 IPC. The contents of the charges were read over and explained to them who pleaded not guilty and claimed to be tried.

To contest this case the prosecution examined as many as 16 witnesses out of 23 named in the charge-sheet while the defence adduced one DW.

The accused persons were also examined u/s 313 of the Code of Criminal Procedure. The defence case was denial of offence with the plea of innocence.

On hearing of both sides, the learned Court below convicted the accused persons by the impugned judgment.

Needless to mention that out of five accused persons two i.e. parents-in-law of Sharmila in the meantime have died.

Now, the point of consideration is if the impugned judgment suffers from any infirmities or calls for any interference or not.

Sections 498A, 306 and 34 IPC read as follows:

Section 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 purpose of this section, "cruelty" means-

(a) Any willful 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. 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 34. Acts done by several persons in furtherance of common intention-When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.

The learned counsel for the appellants not only argued but also submitted written argument. Similarly, the de facto complainant has submitted written argument. The learned Counsel for the State strenuously contended that there is nothing to interfere with the judgment and the sentence may be upheld. The learned counsel for the appellant inter alia argued mainly on the following points in addition to filing of written argument as follows:

(i) There has been substantial improvement of statements given by the parents and relations in court vis-a-vis the statement given u/s 161 of the Code of Criminal Procedure before Police during investigation.

(ii) Both the families of victim and the accused persons reside nearby and the marriage between the victim and her husband was out of love affairs. So, the question of torture perpetrated by the family members of the in-laws house does not arise.

(iii) In some places and documents it transpires that the petitioners set fire on her own accord as she could not conceive due to gynecological problems whereas her ''Ja'' (sister-in-law i.e. wife of Ashim Bose) remaining in the same family gave birth to a child and this made Sharmila morose.

(iv) Medical papers show that the uterus could not be found as she was suffering from physical deformity.

(v) The so-called statement of dying declaration has neither been signed by any doctor nor there is any endorsement to the effect that the patient was in speaking condition.

(vi) There is no instigatory statement to come to the conclusion that the accused persons abetted the commission of offence u/s 306 IPC preceded by torture covering the offence u/s 498A IPC.

To appreciate the case some vital pieces of evidence are required to be noted here.

The complaint is marked as Ext. 1 as proved by Samir Kumar Bose, the father of the deceased. Therein, it was disclosed that over trifling matters the accused persons used to inflict mental and physical torture viz. over use of open corridor as kitchen by her daughter, loss of one soap cake etc. The FIR is totally silent over any dower claim or so or continuous harassment in the form of provocation forcing the victim to commit suicide by setting fire by pouring kerosene oil on her person.

P.W. 1 is the father of the victim. In evidence, he stated that after marriage her daughter Sharmila was subjected to various physical and mental torture at her in-laws place over dowry. But it has not been disclosed in the FIR.

The I.O., P.W. 14 stated that P.W. 1 did not state that the accused persons started inflicting torture upon her, nor did he state she used to suffer torture because some of the accused persons, particularly, Ashim Bose used to throw water and cross over the cooked food. PW 1 stated that immediately after death of his daughter, he was not in a position to lodge the complaint. So, there was delay in filing written complaint. PW 1 stated that on 8.11.87, her daughter when came to his house gave two written letters, one addressed to his wife and to him and the other one addressed to his son, Khokhon describing of her torture she was suffering at her in-laws place. She also handed over another letter addressed to S.P., Barasat, North 24 Paraganas marked as Ext. 3/2 for redressal of the torture. He also stated that on account of continuous provocation, his daughter committed suicide by setting fire on herself by pouring kerosene oil at her in-laws place. A suggestion was given to him that his daughter committed suicide after being frustrated for her incapacity to bear a child. It was denied by him.

P.W. 2 is the mother of the victim. She stated that her daughter has a physical deformity which is a bar to conceive. She further stated that her daughter was a brilliant student seeking 1st class marks in M.Sc. Exam. And local people used to speak high of her on account of her outstanding qualities behavior which created envy amongst the members of her in-laws family. She also stated about the jumping over cooked food by Ashim Bose and over some other petty matters the members of the accused family abused and tortured her. She did not speak anything about the torture over dowry.

P.W. 3 is a domestic help of the family of the victim. According to her evidence, the victim called her and gave a packet with clothes and some letters to deliver it to her mother and she found the victim having smeared her head and forehead with vermilion in such a manner which usually is not done. She took the packet from the victim and delivered it. She also found kerosene oil on the floor. Later, she saw that the victim was burnt and lying on the verandah. Her evidence is devoid of ingredients of sections 498A/ 306 IPC

P.W. 4 is a friend of the deceased. She stated that the deceased herself set fire on her person at her in-laws place. She attributed the cause that on asking the victim, she replied that a child was born to her brother-in-law. This aggravated her mental agony. She was declared hostile. The I.O. was not confronted over the evidence of P.W. 4. She also stated in cross-examination that before her death of incident, there was no occasion of quarrel or brokering or breach of peace at the matrimonial house of Sharmila.

P.W. 5 was tendered by the prosecution and from her cross-examination it reveals that as the victim could not conceive any child, so she burnt herself.

P.W. 6 is a neighbour. He stated that he rushed to the spot and saw the victim burnt and when asked the victim about cause, she stated as she could not conceive a child, so, she committed suicide. This witness was not declared hostile by the prosecution. It further appears from his cross-examination that Sharmila disclosed him that none is responsible for her death.

P.W. 7 is a neighbour. PW 7 stated that Sharmila disclosed that she committed suicide as she could not be able to give birth to a child.

P.W. 8 is a formal witness. So too P.W. 9.

P.W. 10 is a doctor. He examined the victim and stated that on being asked the victim party, stated that she set fire upon herself at her own will. There is no cross-examination on this point. He further stated that he pushed injection to the patient but she lost her sense. There is nothing in the record when she regained her sense.

P.W. 11 is an Inspector of Police posted as Examiner of Question Department, CID. He examined 5 letters and compared them with the standard writing of Sharmila and came to the opinion that the writing appearing on those letters marked as Exts. 3/1, 3/2, 3/3, 3/4 were written by the standard writing of Sharmila Bose. His report is Ext. 4.

P.W. 12 is another doctor who examined Sharmila and proved her injury Ext. 5. No statement was given to him by the deceased about the history of injury.

P.W. 13 is a sister-in-charge of National Medical College Hospital, Calcutta. She stated that in her presence the Police recorded the statement of Sharmila when she disclosed to Police that being tortured by her parents-in-law, brother-in-law and sisters-in-law, she tried to commit suicide by setting fire on her person. She signed dying declaration Ext. 6. In cross-examination she stated that the statement recorded by Police does not bear any name and presence of any doctor. This piece of document allegedly was termed by the prosecution to be dubious.

P.W. 14 is a Police Inspector who recorded such dying declaration as Ext. 6/1. He denied that in collusion with nurse and other persons he manufactured the dying declaration of the victim.

P.W. 15 held the PM report and he could not come to the conclusion to say whether the death was accidental, suicidal or homicidal in nature.

P.W. 16 is the I.O. After investigation he submitted charge-sheet.

''Abetment'' is something different. Certain discord and differences are unavoidable but if the petulance, discord and differences are not expected to induce a similarly circumstanced individual in the given society to which the deceased belonged, the conscience of the Court should not be satisfied to find that the accused abetted suicide of the deceased. We may put reliance on Ramesh Kumar Vs. State of Chhattisgarh, in this regard.

The Hon''ble Apex Court has laid down in (2005) SCC (Cri) 56 that abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In case of conspiracy also it would involve mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding, the doing of a thing is required before a person can be said to be abetting the commission of offence u/s 306 IPC. There should be proximity between alleged act of cruelty and suicide. We may put reliance on 2011 (2) Supreme 220 for analogy.

In this regard, one example may be taken as follows:

A man while hurling continuously serious remarks takes another man near a rail line and asked the man to jump on the rail to put an end to his life, and the other man did it out of frustration and died. This situation may create a case of abatement. Further, abatement does not develop by a single act. It constitutes a series of mental preparations and acts culminating to provoke another man to commit suicide. The term "instigate" was considered by the Hon''ble Apex Court in (2002) SCC (Cri) 1088 wherein it was held by Their Lordships that instigation is to goad, urge forward, provoke, incite or encourage to do an act to satisfy the requirement of "instigation" though it is not necessary that actual words must be used to that effect or what constitutes "instigation" must necessarily and specifically be suggestive of the consequences. The word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. Thus, to construe "instigation", a person who instigates another has to provoke, incite, urge or encourage the doing of an act by the other by "goading" or "urging forward". The dictionary meaning of the word "goad" is "a thing that stimulates someone into action; provoke to action or reaction.

Similarly, "urge" means to advise or try hard to persuade somebody to do something or to make a person to move more quickly and or in a particular direction, especially by pushing or forcing such person. Therefore, a person who instigates another has to "goad" or "urge forward'''' the latter with intention to provoke, incite or encourage the doing of an act by the latter.

As observed in Ramesh Kumar Vs. State of Chhattisgarh, ] where the accused by his acts or by a continued course of conduct creates such circumstances that the deceased was left with no other option to commit suicide, an "instigation" may be inferred. In other words, in order to prove that the accused abetted commission of suicide by a person, it has to be established that

(i) the accused kept on irritating or annoying the deceased by words, deeds or wilful omission or conduct which may even be a willful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or wilful omission or conduct to make the deceased move forward more quickly in a forward direction, and

(ii) that the accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the manner noted above. Undoubtedly, presence of mens rea is the necessary concomitant of instigation.

The ingredients of abetment of suicide are as follows:

The prosecution has to prove-

(i) the deceased committed suicide;

(ii) the accused instigated or abetted for committing suicide (committing suicide by itself is a crime);

(iii) direct involvement by the accused in such abetment or instigation is necessary.

Barring the solitary statement "ora amar mrityu chaiche" or "nonexplained" alleged hurling of abusive words and threatening, nothing transpired in the present case in the form of goading, provoking, inciting as required for proof of a case u/s 306 IPC. Relevantly, it may be mentioned that there is a marked difference between "intimidatory" statement and "instigatory" statement. "Intimidatory" statements may give rise to two types of consequences, (a) either the person to whom such statements are made may be frightened and may be on receiving end or he may be angry enough to retaliate whereas (b) instigatory statements falls within the category of goading, provoking etc. The nature of languages used by the prosecution witnesses for commission of suicide by the deceased falls within the category of intimidatory statements in which the ingredients of section 107 IPC for abetment of offence are wanting.

Peculiar circumstances emerge in this case. Shorn off unnecessarily details the moot point is that over dowry the victim lady was subjected to cruelty. Thereafter, she was tortured and provoked continuously to commit suicide. Whereas the case of the appellants is that the victim lady was unable to bear a child due to her physical deformities and as such she could not bear a child but as soon as she saw that her ''Ja'' (sister-in-law i.e. wife of Ashim) gave birth to a child, she felt morose and then disclosed this factum to many of her family relations and ultimately, she put an end to her life by setting fire on her person.

It is true that Ext. 3-series i.e. inland letter and pages of diaries and a letter dated 8.11.87 alleged to be written by Sharmila have been proved in this case by the handwriting expert. Yet, those documents are required to be taken with a grain of salt for various reasons. Reading between the lines of those documents does not show the factum that continuously the appellants by their specific and positive acts in a particular manner goaded, provoked or incited the victim to commit suicide. The letter speaks about some ill-feelings of the victim lady and not the provocation or instigation save and except one line viz. "ora amar mrityu chaiche" (they want that I should die) as appeared in one page of diary of Ext. 3/3. This piece of evidence is not sufficient for provocation to commit suicide. The letters are mixture of various aspects of life. In one place, the letters show that the deceased has extreme love towards her husband Pulak and when Pulak was attacked by other members of in-laws family according to her version, the victim wanted to resist and even she wrote in one place that members of her father''s place came when Pulak was being attacked by his parents and relations. She was not allowed to come there by in-laws members. Further she stated by swearing in the name of God that had she would have allowed to come, she could cut into pieces the hand of only son of ''baro meye'', i.e. sister-in-law and they could have got the result of assault of her husband. This piece of evidence is not an instigatory statement. Rather I find that due to the behaviour of the members of the in-laws place the victim wanted to retaliate to save her husband. The question of retaliation comes when an intimidatory action is seen. Reliance may be put on (2013) 1 C Cr LR(Cal) 117. Further, from these letters it is abundantly clear that over trifling matters in daily family life the maker felt frustrated and could hot tolerate the same. This is a sign of her petulance. While many other women are sometimes expected to bear with such trifling matters in the matrimonial life. Regarding inheritance of the house her father-in-law allegedly her father-in-law made a statement to the effect "tumi e barir uttaradhikari nou". Again, it appears from the letter dated 8.11.87 (Ext. 3/2) written by the deceased addressing the S.P., Barasat, North 24 Parganas that "myself and my husband reside as a separate unit in the joint family. Each and every occasion some sort of quarrel crops up and father-in-law, mother-in-law, sisters-in-law and particularly, brother-in-law used to torture me in absence of my husband. I am a literate house-wife and I, have reached to the optimum of my tolerance amidst physical and mental torture day in and day out." The doctors found no sign of physical torture. What are the issues for torture have not been disclosed in the letter. The contents appears to be vague. At least careful examination of letters do not lead to the conclusions that there was provocation or goading from side of the appellants to the deceased for commission of suicide.

The other aspect is the dying declaration. The dying declaration is recorded by one S.I. of Police, P.W. 7. It was attacked from various angles in the cross-examination of this witness. It was stated to have been taken in presence of staff nurse of the hospital. There is no note on dying declaration to the effect that the maker was conscious or was in fit state of affairs or rather her pain and brain and mind acted together to give it. There was no certificate of fitness given by the doctor. When a staff nurse was called why any doctor has not been called has not been cleared by the prosecution. It has already been stated that after pushing injection she lost her sense. This fact cannot be lost sight of. It is true that in the dying declaration the victim said "I became helpless due to continuous torture by my father-in-law, mother-in-law, brother-in-law and sisters-in-law and these persons every time used to torture him at the time of absence of my husband". What kind of specific torture was meted to her or what were the utterances have not been disclosed by the so-called maker. Reliance may be put for non-acceptability of the dying declaration on the basis of law as propounded by the Hon''ble Apex Court in PVR Radhakrishna v. State [AIR 2003 SC 28591. True it is that absence of a certificate that the declarant is in a fit state of mind to make the statement is not fatal if the person recording the statement is satisfied that the declarant was in a fit state of mind. According to her, the husband tried to save her from their torture. She spoke very high of her husband and loved him from the core of her heart as reflects from her writings but her husband himself as D.W. 1 has given diametrically opposite statement that she could not bear a child so she felt morose and being frustrated put an end of her life by setting fire on her person. So, the suggestion that the dying declaration is a dubious document, cannot be brushed aside.

It is quite natural in a family that there may be some difference or dispute or discord but those do not ipso facto mean that there was provocation or instigation from one side to force the other side to commit suicide. Moreover, the evidence shows that sometimes the victim and her husband lived separately and thereafter at the request of the members of the in-laws place they came back to live in a portion of the in-law''s family where the deceased''s. sister-in-law and her husband used to occupy but had to leave for making room for the deceased and her husband. Also, it transpires from evidence that as soon as they returned to the joint family, members of the in-laws place stated "what made you returned". So, If the evidence of P.W. 1 is acceptable then it should be taken that such type of behavioural pattern of the members of the in-laws place do not establish the fact that she was provoked. A person may commit suicide on account of various reasons. It may be out of frustration to achieve goal or out of provocation or even if anybody forces someone in the form of attack to commit suicide. True, the death snatched the life of a young lady. But that death being suicide in nature does not appear to have come u/s 306 IPC.

The last but not the least aspect is that section 498A IPC covers two aspects. First part is section 498A(a) which does not show anything that the torture relates to the question of dowry or so. Rather, the question of dowry or so is related with section 498A(b). It has already been stated that the demand of dowry does not appear to have established. So, the first part i.e. section 498A(a) IPC to my estimation is not covered by torture on the ground of dower. If at all for argument''s sake, (which I do not believe in absence of evidence) it is believed that mentally or physically she was tortured that aspect probably may not come u/s 498A IPC but rather falls under other penal provisions of law viz. 323, 324 IPC or so. On this score also, the charge u/s 498A IPC fails and hence simultaneously the charge u/s 306 IPC gets weakened.

I do not feel any necessity to discuss on every decision cited by both sides in view of the findings arrived at above.

In view of the consideration of the total circumstances and the materials on record available, I am of the opinion that the findings of the learned Trial Court are not correct.

Accordingly, the appeal stands allowed.

The judgment and the sentence passed by the learned Additional Sessions Judge, 2nd Court, Barasat, North 24 Paraganas dated 18.12.2010 is set aside.

The appellants be set free and be released from ball bonds if not wanted in any other case. Let a copy of this judgment and the LCR be sent down to the learned Court below immediately.

Upon appropriate Application(s) being made, urgent Photostat Certified copy of this Judgment, be given/issued expeditiously subject to usual terms and conditions.