Biswajit Bhowmik vs The State of Tripura

S. Talapatra, J.—This appeal by the convict, hereinafter referred to as the appellant, has been filed under Section 374(2) of the Cr.P.C. against the judgment and order dated 02.01.2014 delivered in case No. S.T. 215 of 2012 by the Additional Sessions Judge, Court No. 5 (First Track Court), West Tripura, Agartala. The appellant has been convicted under Section 306 of the I.P.C. and sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 3,000/- in default, to suffer further imprisonment for 2 months.

The genesis of the prosecution is rooted in the written ejahar filed by one Amar Das (PW-1) whose elder sister, Pratima Bhowmik nee Das was married to the appellant. The appellant was a school teacher. In their wedlock, one son namely, Banadip Bhowmik (PW-8) was born. The couple with their son were residing in the house of one Yogamaya Dey at Colonel Chowmuhani at Agartala. On 25.02.2011 in the morning at around 7.08 O''clock, the appellant rang up the informant from his cellular phone and informed that he had killed his sister, Pratima by hanging her with a rod of the window of their room and he would be leaving with his son from that place. He had further narrated that the dead body of his sister was lying inside the room and they might break the lock for recovering her dead body as the key of the room was with him. Thereafter, the appellant snapped the call. PW-1 immediately informed his parents and some neighboring people namely, Gobinda Shil and Mithun Dutta. They rushed to the place of occurrence. On arriving at their rented house, they found the hut was locked from the outside. They informed the police. When the police arrived at the place of occurrence, he had entered into the hut by way of breaking the locking ring and found that "the dead body of my elder sister named Pratima Das was fastened with a rod of the window of that hut. And the entire body of her was found lying over the floor of the hut. Having seen the dead body of my sister I had no doubt in that respect that my brother-in-law (i.e. the husband of my sister) named Biswajit had fastened her with rod of the window by way of killing her (my sister Pratima Das) after throttling" (as translated by the Paper Book Section).

Based on the said written ejahar, Exbt. P-1, West Agartala P.S. Case No. 69 of 2011 under Section 302 of the IPC was registered and taken up for investigation.

On completion of the investigation, the final police report was filed charge-sheeting the appellant under Section 302 of the IPC. In due course, the police papers were committed to the court of the Sessions Judge, West Tripura, Agartala. When the case was transferred to the court of the Additional Sessions Judge, West Tripura, Agartala, Court No. 5, the Addl. Sessions Judge, hereinafter would be referred to as the trial court, framed the charge against the appellant for committing the offence of abetment to suicide by way of unbearable torture under Section 306 of the IPC. Alternative charge was framed under Section 302 of the IPC for committing murder of Pratima. The appellant pleaded total innocence and claimed to face the trial.

In order to substantiate the charge as stated, the prosecution adduced as many as 14 witnesses including the informant, Amar Das (PW-1), Smt. Lipika Dey (PW-2), Sri Banadip Bhowmik (PW-8), Dr. Jayanta Sankar Chakraborty, the Medical Officer who conducted the postmortem examination (PW-13) and Smti. Mamtaj Hassina, the I.O. (PW-14). In addition, the prosecution also introduced as many as 10 documentary evidence (Exbts. 1 to 10) including the written ejahar (Exbt. 1), the surathal report (Exbt. P/5), the postmortem examination report (Exbt. 8) and the report of the SFSL (Exbt. 9 series) etc.

The appellant examined himself by taking the leave of the court under Section 315 of the Cr.P.C. and he introduced one solitary documentary evidence in his defence being the notice for default of payment of installment of the loan (Exbt-A). After the prosecution evidence was recorded, the appellant was examined under Section 313 of the Cr.P.C. when he denied the incriminating materials surfaced in the evidence led by the prosecution and reiterated his plea of innocence. On appreciating the evidence on record, the trial court by the judgment dated 02.01.2014 has returned the finding of the conviction holding that:

"18. Taking the entire evidence both of the prosecution and defence as mentioned above and reading the same in the light of the citations above referred, it can be safely concluded that the accused was very much dissatisfied with the complexion of his wife and intended to marry again for which he was constantly subjecting her to torture. This made her sad and depressed which she expressed to the witnesses. His suspicion that she had developed relation with his cousin and taking advantage of his absence, used to maintain sexual relation with him regularly, definitely had accelerated his desire to somehow eliminate her and for this reason the inhuman torture upon her started on that night. The description of the injuries narrated above inflicted on the victim bear testimony to the extent to which the torture was made throughout the night and the object was obvious, to drive her to commit suicide. Thus, the accused achieved his object. The requirement of Section 306 IPC is thus clearly met.

Guilt of the accused thus being proved independent of the absconsion factor, it can now be said that the accused absconded because he was of guilty mind, otherwise, he would not have abandoned his wife at least in her death and would have faced the situation.

For the reasons stated above, while the accused is held not guilty of the charge u/S. 302 IPC, he is held guilty of the charge u/S. 306 of IPC and is thus convicted."

Mr. Dutta, learned counsel appearing for the appellant has emphatically submitted that the prosecution case to some extent has been founded on the testimonies of PWs-2, 4, 9 to 12. In sequence, he has pointed out that the testimonies of those witnesses are tainted for improvement in the court and those are not ordinary omissions but those are in fact fresh introduction of the fact in the trial court. Those improvements are to be noticed, as those constitute serious contradictions. He has further submitted that what the deceased had stated about the torture to the witnesses for realizing unlawful demand cannot be admitted in the evidence inasmuch as the said statements of the deceased are not embraced by the exception as provided under Section 32(1) of the Evidence Act. He has further submitted that even in the surathal report there is no mention of injury over the body of the victim. Despite that on purported appreciation of such injuries, the trial court had drawn inference to hold the appellant guilty of abetting suicide. He has further submitted that absconding of the appellant from the place of occurrence has also been accepted as one of the incriminating circumstances to draw the finding of conviction.

Mr. Dutta, learned counsel has submitted further that the testimony of PW-8, the son of the appellant has been unceremoniously discarded. Thus, he has submitted that it was not the reason but the passion that has taken over the analogy. Finally, Mr. Dutta, learned counsel appearing for the appellant has contended that some of the incriminating materials which have been used for returning the finding of conviction even were not put to the appellant during his examination under Section 313 of the Cr.P.C. One such incriminating material is his absconding when the dead body of his wife was fastened with a rod of the window.

Mr. Dutta, learned counsel appearing for the appellant to strengthen his submission has relied on a few decisions on the aspects of abetment. Mr. Dutta, has relied on the decisions in Shaik Hussain Vs. State of A.P., , Sohan Raj Sharma Vs. State of Haryana, , Shri Vishal Agarwal Vs. State of Assam and Another, , Md. Anarul Hussain Vs. The State of Assam--> and Kajal Datta @ Ujjal Vs. State of Tripura, .

The statements made by the deceased to the witnesses, having no relation to the cause of death or the transaction relating to death, whether can be exempted in terms of the provisions of Section 32(1) of the Evidence Act? Mr. Dutta, learned counsel appearing for the appellant has relied on the decisions viz. Inderpal v. State of M.P., reported in , 2002 CRI.L.J. 926 , Sangannagari Narasimulu Vs. State of Andhra Pradesh, , G.M. Ravi alias G. Purushotham Vs. State of A.P., , Sri Biplab Chakraborty, Smt. Maya Chakraborty and Smt. Sima Chakraborty Vs. The State of Tripura--> and Sakatar Singh and Others Vs. State of Haryana, . On the aspects of absconding, the reliance has been placed by Mr. Dutta learned counsel on Paramjeet Singh @ Pamma Vs. State of Uttarakhand, . Mr. Dutta, learned counsel on the aspect of not placing the incriminating material, which has been used against the appellant during his examination under Section 313 of the Cr.P.C. has referred to Bipin Kumar Mondal Vs. State of West Bengal, . Mr. Dutta, learned counsel appearing for the appellant has also referred to a decision of the apex court in Sohan Raj vs. State of Haryana for holding that the more the offence is heinous, the stricter is the standard of proof.

While refuting the submission of Mr. Dutta, learned counsel, Mr. R.C. Debnath, learned Addl. P.P. has stoutly contended that there is no infirmity in the reasoning provided by the trial court. While returning the finding of conviction, the trial court has appreciated the circumstances which formed a chain to exclude the hypothesis of his innocence. Testimonies of PWs-1, 2, 4, 5, 8, 9 to 12 are fundamental in forming a chain out of those circumstances. Mr. Debnath, learned Addl. P.P. has contended that there cannot be any amount of doubt that Pratima was tortured on the previous night vis-�-vis the day when her dead body was recovered. Mr. Debnath, learned P.P. has further submitted that there are clear reference of the injuries both in the surathal (the inquest) report and in the postmortem examination report. Thereafter, Mr. Debnath, learned Addl. P.P. appearing for the respondent has seriously contested the statements made by Mr. Dutta, learned counsel appearing for the appellant that the question relating to his absconding was put to the appellant during the examination under Section 313 of the Cr.P.C. Thus, the ground of objection that the same was not placed for response in the examination under Section 313 of the Cr.P.C., is entirely without basis. He has further submitted that the child witness who had admittedly been brought from the custody of the appellant, may not have the credibility. Due caution has correctly been exercised by the trial court. Mr. Debnath, learned Addl. P.P. has submitted categorically that the appellant neither during his examination under Section 313 of the Cr.P.C. nor when he had examined himself as DW-1 did utter a single word by way of explaining under what circumstances or for what reason Pratima committed suicide, even though the said transaction was exclusively within his special knowledge.

For proper appreciation of the highly contrasting submissions made by the learned counsel appearing for the appellant and for the State, a fresh survey of the evidence as recorded in the trial is essentially required.

PW-1, Sri Amar Das lodged the written ejahar, Exbt. P/1. In the trial, he had replicated the basic statements made in the ejahar. But he has also narrated that the police retrieved the dead body and prepared the inquest report. He had also narrated one episode that had taken place on 24.02.2011 when they visited Matabari at Udaipur. His sister, Pratima told him at the residence of their maternal aunt, Smt. Saraswati Das, that on the previous night, she was physically tortured by the appellant. Even he has narrated that 3/4 months before her death, the appellant demanded a sum of Rs. 70,000/- from his mother. He has expressed his apprehension that, for non-payment, his sister Pratima had been killed. He has admitted in the cross-examination that his mother was a slip worker, hardly earning Rs. 3,500/- per month. He has denied the suggestion that Pratima had an ''unusual relation'' with Prasenjit. He even denied the knowledge of any kind of relation. Even PW-1 denied the suggestion that when the appellant informed them about the death of Pratima they threatened him and out of fear he fled from the house. He has also denied that the appellant did not tell him over phone that the appellant killed Pratima and locked the room. He has also admitted that he did not mention in the ejahar that the dead body was facing the window and that was tied with orna(stole).

PW-2, Smt. Lipika Dey is an independent witness and the daughter of the landlady in whose house, the appellant and the victim used to stay with their son. She has stated that on 25.02.2011 at about 7 am hearing hue and cry, she and her mother reached near their room and found that mother of Pratima Bhowmik and her brother and some other persons had arrived there. PW-1 informed her that the appellant had informed by telephone that he killed his wife and kept the body locked inside the room and asked him to retrieve the body. Her mother suggested that before they broke the lock, the police should be informed. Accordingly, the police was informed and in presence of the police, the lock was broken. After entering in the room, she found the body of the victim tied against the rod of a window by piece of a cloth but not at much height. She has also stated that they used to put the lock in the main gate at 10 pm and opened at 6 am. The previous night of the incident as she went to lock the gate, the victim requested her not to put the lock as her husband did not return. Thereafter, around 10.30 pm the victim called her to put the lock as the appellant had returned. In the morning, she opened the gate at 6 am. She has stated that at times she noticed her sad. Pratima used to say her that since she was black complexioned, her husband might marry again. On the morning, the appellant or his son did not inform them before leaving the house. Till the month of May, 2011, the house was kept under lock and key by the police. She was witness to seizure of a lock and a piece of cloth on 25.02.2011 which she identified as Exbt. M.O. 1 & M.O. 2. She has also identified her signature. She has categorically stated that she did not hear any loud voice of Biswajit during their stay in the house. Even Pratima did not tell her any time that her husband tortured her.

PW-3, Smt. Mousumi Das is a cousin of the victim. According to her, the victim informed her that the appellant was demanding money from her. If not paid, he would kill her. But in the cross-examination, she admitted that no such specific statement was available in her previous statement as recorded by the investigating officer.

PW-4, Smt. Bhaigya Das is the maternal aunt of the victim. She has also stated that the victim told her that her husband used to torture her on demand of money. Even she had stated that for her black complexion, her husband might marry again. In the cross-examination, she has admitted that there is no such reference in her previous statement to the effect that the victim visited her house.

PW-5, Uttam Debnath is the person who accompanied PW-1 on the fateful morning. He has only stated that Pratima used to tell that she was not happy and Pratima''s mother used to tell him that the appellant used to torture her daughter.

PW-6, Subir Majumder is the photographer, who took the photographs of the victim after her death at the request of the police by their camera.

PW-7, Gobinda Ch. Shil is another person who accompanied PW-1 on that morning of 25.02.2011. He has simply stated that he found that the room was locked from the outside and they did not find the appellant or his son there. He has stated that the victim used to tell him that her husband used to torture her on demand of money. But in the cross-examination, he has clearly admitted that he did not state to the I.O. that the victim used to tell him that her husband used to torture her on demand of money.

PW-8, Banadip Bhowmik is apparently a vital witness as he as the son of the victim and the appellant was present in the place of occurrence throughout the transaction. As he was aged about 8 years at the time of his examination in the trial, due test was carried out to ascertain his understanding and obligation of speaking the truth. He has at the beginning stated that he had come to the court along with the appellant. He has also stated that he made statement to the Magistrate. He identified the statement as recorded under Section 164(5) of the Cr.P.C. (Exbt. 4).

In the examination-in-chief, he did not reveal anything about the transaction. However, in the cross-examination, he has categorically stated that he did not witness any quarrel between his parents. His father never assaulted his mother. On the previous night of the occurrence there was no quarrel. Even his mother did not abuse his father.

PW-9, Smt. Sukla Das is the mother of the victim. She has stated that about 4 months before her death, the victim told her that she was subjected to torture for her complexion and she used to apprehend that the appellant would marry again on killing her. On the previous day of her death, the victim along with her husband visited Matabari. She had advanced a step forward by making a statement that she paid around 70,000/- for purchasing the auto rickshaw which was purchased in the name of the victim. Even after purchased of the auto rickshaw her daughter used to come for money. About a week before the death of her daughter, the appellant further demanded Rs. 70,000/- from her but she could not pay. She denied the suggestion in the cross-examination that she did not pay any amount to the appellant at any point of time. Even she denied that Pratima did not come to their house seven days before her death or she expressed her apprehension that for her black complexion, the appellant would marry again. It is to be noted that no charge under Section 498-A of the I.P.C. was framed against the appellant.

PW-10, Sri Atul Das is the father of the victim. He had also accompanied with PW-1 on that morning. Apart that, he was the witness to the seizure of lock, a piece of cloth, the bottles containing the viscera and the wearing apparels of the victim. He identified those materials which were marked as Exbts. M.O. 1, M.O. 2, M.O. 3 series and M.O. 4 series. He has denied the suggestion that Pratima did have any illicit relation with the cousin of the appellant.

PW-11, Sri Mithu Dutta, also accompanied PW-1. He simply stated in brief what he saw appearing in the place of occurrence. Entering in the room, he found that the dead body of Pratima tied against a window rod with face upward. He denied the suggestions that the appellant did not inform PW-1 that the appellant after killing his wife would leave the house. He denied the other general suggestions.

PW-12, Smt. Saraswati Das is the aunt of the victim. She has stated that Pratima used to tell her that her husband did not like her any more as her complexion was black and he used to tell that he would marry again. She has further stated that Pratima asked her mother to arrange purchase of an auto rickshaw and accordingly, she paid Rs. 38,000 - 39,000/- for purchase of auto rickshaw. Again Pratima was asked for collecting Rs. 70,000/- from her mother but she could not pay.

In the cross-examination, she has admitted that there is no such reference in respect of payment of money on demand of Pratima by her sister, PW-9 in the statement recorded by the I.O. but she denied the suggestion that Pratima did not disclose to her that her husband did not like her as her complexion was black.

PW-13, Dr. Jayanta Sankar Chakraborty has conducted the post-mortem on the dead body of the victim. He found the following ante mortem injuries on the person of the victim:

"On dissection of neck the area beneath that mark was found glistening white with ecchymosed edges. Laryns, trachea, thyroid, cartilage and hyoid bone were found intact. Carotid arteries on both sides were found intact.

Above mention ligature mark was ante mortem in nature and age of injury was fresh at the time of death.

There numbers of Horizontally placed incised injuries placed almost parallelly to each other were present on the front of lower most part of the right forearm, the distal injury was situated 3 c.m. above the wring joint. The size of the injuries from distal to proximal were 1.8 c.m. x 0.3 c.m. x skin deep, 1.5 c.m. x 0.2 c.m. x skin deep and 1 c.m. x 0.2 c.m. Among those three numbers of injuries, the middle one was situated 0.8 c.m. above the distal one and 1 c.m. below proximal injury.

4(four) numbers of horizontally placed incised injury placed almost parallelly to each other were present on the front of lower most part of the left forearm, the distal injury was situated 2.5 c.m. above the writ joint. The size of those injuries from distal to proximal were 3.5 c.m. x 0.3 c.m. x skin deep, 1 c.m. x 0.2 c.m. x skin deep, 1.8 c.m. x 0.2 c.m. x skin deep and 1.3 c.m. x 0.2 c.m. x skin deep. Among those four numbers of injuries the proximal injury was situated 1.5 c.m. above the immediate distal injury to it, the distal injury was situated 0.8 c.m. above the immediate proximal injury to it and the middle two injuries were situated 1.3 c.m. apart from each other.

One needle prick like injury was situated on cubital fossa of left upper limb, situated 1 c.m. let to midline, size 0.2 c.m. in diameter x the subcutaneous deep.

Two needle prick like injuries were situated on front of lower most part of left leg, 4 c.m. above the ankle joint. The injuries were situated at the same level and 0.8 c.m. apart from each other, size of each injury was 0.2 c.m. in diameter into subcutaneous deep.

One needle prick injury was present on front of lateral aspect of right ankle, size 0.2 c.m. x subcutaneous deep.

One scratch abrasion, situated almost horizontally on postero lateral aspect of left forearm situated 15 c.m. above the wrist, size 3 c.m. x 0.1 cm."

He has categorically opined that the cause of death was asphyxia due to hanging. He identified his signature and the signature of Dr. Pranab Chowdhury, who was also the part of the team which conducted autopsy. He has stated that the injuries at Sl. Nos. 2, 3, 4, 5, 6 & 7 may be self inflicted or caused by others. He has categorically stated in the examination-in-chief as under:

"We did not find any marks like finger prints, blood clotting around injuries Nos. 2 to 7 Guanethdine, Monosulphate was being high blood peruse/hyper tension. This is now an obsolete drug for about last twenty years. Whether death would cause by such a drug would depend on the quantity consumed. There was no mention in the forensic report in this regard. No injury of the nature of finger print or blood clotting was found around the mouth. Postmortem report suggests that he case was of suicidal hanging."

PW-14, Smt. Mamtaj Hasina has stated how she had investigated the case having been entrusted and on completion of the major part of the investigation and on collection of the postmortem examination report, the surathal report and the SFSL reports, he filed the charge-sheet under Section 498-A /302 of the I.P.C. She has admitted in the cross-examination that the appellant stated to her that if he would pay money to his house inmates, the victim used to start quarrelling with him.

It is apparent that in the examination under Section 313 of the Cr.P.C., the appellant categorically denied the incriminating materials and pleaded innocence again. He examined himself as DW-1 where he exhibited one notice for default in payment of the installment of the loan as taken from Mahindra and Mahindra Financial Services Ltd. for purchasing the auto rickshaw TR-01-C-3971. He denied that he had ever taken any money from his mother-in-law. He stood firm in the cross-examination.

In the surathal report (Exbt. P/5), some observations are there which are not much relevant. Moreover, the injuries as pointed out in the post-mortem report are not supported by the surathal report, except the cut mark stained with blood on the right hand.

From the evidence as discussed above, it has clearly transpired that PW-2 has categorically stated that she never heard any quarrel between the victim and the appellant. What she has stated that the victim had apprehension that her husband might marry again for her black complexion. Torture on the victim for demand of money does not appear believable inasmuch as if the statements of PWs-1, 9 & 12 are read together, it would be apparent that those statements are product of afterthought to ensure the conviction of the appellant. Moreover, those statements are definitely not related to the cause of death or to the transaction relating to death and hence cannot be read in the evidence being hit by Section 60 of the Evidence Act. The statement made by PW-9 that she paid money for purchase of auto rickshaw stands squarely rebutted by DW-1 by his production of the notice for payment of the installment of loan which was obtained for purchase of the auto rickshaw. The trial court has correctly observed that the death was not homicidal in nature. On the basis of the postmortem examination report and by help of the medical jurisprudence, the trial court has also correctly inferred that there is no evidence of cruelty as explained under Section 498-A of the I.P.C. Whether the victim''s apprehension that her husband might marry again as he did not like her for black complexion can constitute instigation within the meaning of Section 107 of the I.P.C.? The law in this regard is well settled. In Chitresh Kumar Chopra Vs. State (Govt. of NCT of Delhi), , the apex court had occasion to deal with the meaning and purport of word ''investigation'' and ''goading''. In that report, the apex court opined that there should be intention to provoke, incite or encourage the doing of an act. Each person''s suicidability pattern is different from the others. Each person has his own idea of self esteem and self respect. Therefore, it is impossible to lay down any straight jacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances. In M. Mohan Vs. The State represented by The Deputy Superintendent of Police, , the apex court has reiterated the law of abetment:

"45. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained.

The intention of the Legislature and the ratio of the cases decided by this Court are clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide."

The trial court has committed error by returning the finding of conviction on the basis of the decision of the apex court rendered in Trimukh Maroti Kirkan Vs. State of Maharashtra, , where it has been enunciated approvingly quoting Ram Gulam Chaudhury and Others Vs. State of Bihar--> that even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving the facts. The accused by virtue of their special knowledge must offer an explanation which might lead the court to draw a different inference. This principle has been wrongly expanded in this case. That apart, the finding that the injuries inflicted on the victim bears the testimony that torture on the victim was made throughout the night and the object was obvious, to drive her to commit suicide. This finding is not at all based on any evidence. The ante-mortem injuries, according to PW-13, might be self inflicted. In view of that statement, made by the expert, the said finding as returned is entirely unwarranted. Even the prosecution has failed in proving the fact from which a reasonable inference can be drawn regarding death. No evidence has been led by the prosecution to show that the appellant abetted death inasmuch there is no clear mens-rea against the appellant. If the statement of PW-2 is read as a whole, the projection of torture throughout the night can hardly be believed. On the other way round, it has surfaced in the evidence that the victim was apprehensive that the appellant might contract another marriage as he did not like her black complexion. This might have created frustration in the victim so deep that she chose the extreme path. Be that as it may, since the prosecution has failed to show by legally acceptable evidence that there was abetment by the appellant or the appellant has the mens-rea the benefit must go in favour of the accused.

Having held so and on appreciating the reports as relied by the learned counsel for the parties, we are of the opinion that the finding of conviction cannot be sustained and accordingly, the same is set aside. The appellant shall be released forthwith, if not wanted in any other case.

In the result, the appeal is allowed.

Send down the LCRs forthwith.