Jayanti Barman vs State Of Assam

[1] This criminal appeal is filed against the judgment and order, dated 05.02.2009, passed by the learned Additional Sessions Judge (FTC), Biswanath

Chariali in Session Case No. 181/2007 convicting the accused-appellant to undergo simple imprisonment for 3 (three) years and fine of Rs. 5,000/, and

in default, to undergo simple imprisonment for another 30 (thirty) days.

[2] None appears for the accused-appellant on call. The State is represented by Mr. NK Kalita, learned Additional Public Prosecutor. Even in the

absence of the learned counsel for the accused-appellant, this Court proposes to dispose of this matter, on merit, after going through the impugned

judgment and the records of the learned trial court including the evidence of the witnesses. This court has also considered that this is an old pending

case of the year 2009.

[3] The fact leading to the case is that, the deceased, Smti Sima Barman, got married with one Swapan Barman at the prime of her age, i.e. at the age

of 20 years, and thereafter started to live in the matrimonial home with her husband. The present accused-appellant is the step mother of her husband.

According to the facts, as revealed from the evidence on record, she was subjected to torture by the accused-appellant. Thereafter, she committed

suicide on 14.01.2006, hardly after 3 (three) months of her marriage with the aforesaid Swapan Barman, on 31.10.2005.

[4] On the basis of the FIR, on the above facts, the Biswanath Chariali Police Station registered a case, investigated into it, collected evidence, and

finally, submitted charge-sheet against the present accused-appellant as well as Swapan Barman, the husband of the deceased.

[5] After exhausting all the required legal formalities, the learned trial court framed a formal charge against the accused persons under Section 306 of

the IPC to which the accused-appellant and the co-accused pleaded innocence, and therefore, the trial commenced.

[6] The learned trial court examined as many as 14 (fourteen) witnesses for the prosecution, and after closure of the prosecution witnesses, the

statements of the accused-appellant and the co-accused were recorded under Section 313 of the Cr.PC. In their such statements, they were found

denying the allegations made against them. The defence examined none.

[7] On conclusion of the trial, the learned trial court, convicted the accused-appellant and sentenced her as indicated above and the co-accused

Swapan Barman /husband of the deceased was acquitted on benefit of doubt.

[8] Now, let us scan the evidence on record to find out the evidence against the accused-appellant implicating her with the commission of the alleged

offence under Section 306 of the IPC.

[9] Before entering into the merit of the evidence of the prosecution witnesses, let us see what constituents an offence under Section 306 of the IPC.

Section 306 of the IPC provides punishment for abetment of commission of suicide. Since the offence is for abetment of commission of suicide, this

court is to consider whether the constituents of abetment as defined in Section 107 of the IPC exists in the instant case.

[10] The principal witness, in the instant case, is PW3, Bishnu Chutia, who is the brother of the deceased. According to him, he was told by the

villagers that the mother-in-law of the deceased killed her by strangulating. He was also told by the deceased that the accused-appellant used to

rebuke her, did not provide her food and also demanded dowry from her. There is no other evidence led by any of the witnesses as regards the

demand of dowry, which could have been, if proved, constitute an offence of abetment as defined in Section 107 of the IPC, Explanation 2 thereof

particularly.

[11] There is no instance in the evidence of the witnesses, except in the evidence of PW3, that any one of them has alleged that the accused-appellant

ever demanded dowry from the deceased. The evidence of PW3 rather explicitly shows that his sister was happy with her husband. The question of

demand of dowry being a question of fact needs to be established by corroborative evidence.

[12] Mr. Kalita, learned Additional Public Prosecutor has submitted that since the demand of dowry, alleged in the instant case by the PW3, is a

matter between the family members there cannot be any witnesses to such fact. But, this court cannot be unmindful of the fact that the same PW3

has stated in his evidence that as per his information from the villagers the deceased was strangulated, meaning thereby, that she did not commit

suicide. So the offence for which the accused-appellant is charged is under Section 306 of the IPC, which is, as stated above, for an offence of

abetment of commission of suicide. Even if for the sake of argument, it is believed for a moment that the evidence of PW3 is true, then also the court

is left with a question as to which statement made by him in his evidence, in the same breathe, be relied upon. His first statement is that the deceased

was strangulated by the accused-appellant and then it is not a case of under Section 306 of the IPC. Apparently, his second statement does not speaks

of abetment specifically yet indicative of abetment due to alleged demand of dowry by the accused-appellant. As stated above, none of the witnesses,

even the elder brother of the deceased, examined as PW2, has made a whisper in his evidence of such a fact of demand of dowry.

[13] The evidence of PW4 is to the effect that at the relevant time of occurrence, the accused-appellant visited her house and enquired from her

whether the deceased had come to their house or not as she was not available in her house, which is suggestive of the fact that immediately before

the commission of suicide, the deceased disappeared from her house.

[14] The evidence of PW5 is categorical while he deposed that the deceased committed suicide by hanging.

[15] The evidence of PW7 is not reliable for two counts. Firstly, she heard about the facts of torture upon the deceased but the source of her such

information has not been revealed in her evidence and the person who told her has also not been examined. None of the witnesses are heard saying

that they ever told the PW7 about the quarrel and torture as alleged by her in her evidence. Therefore, her evidence is hearsay in nature. That apart,

even if her evidence is taken to be proved, for the sake of argument, then also she said that the “accused persons†tortured her, meaning thereby,

the accused-appellant and her son/husband of the deceased. But, the evidence of the PW3 makes it clearly appear that the deceased did not have any

allegation against her husband. Therefore, when the deceased himself did not have any allegation against her husband/co-accused, the evidence of

PW7 appears to have no leg to stand on its own in respect of the alleged torture.

[16] The evidence of PW8 is to the effect that he did not know as to what for the deceased committed suicide.

[17] The PW9 is the Doctor, who performed the post-mortem examination of the deceased and opined that he found non-continuous ligature mark,

high up the neck, rupture of the transverse ligaments of the atlas and forward dislocation of the odontoid. The injuries were ante-mortem in nature. So,

the ligature mark, indicated by the doctor/PW9, is non-continuous which is suggestive of committing suicide by hanging.

[18] PWs10, 11 and 12 are not found to have implicated the accused-appellant with the commission of the alleged offence and they are not adducing

any evidence in relation to the cause of committing suicide by the deceased.

[19] PW14 is the Investigating Police Officer whose evidence is of routine nature from receipt of the FIR till completion of investigation and filing of

the charge-sheet.

[20] So, the above evidence of the witnesses is found not implicating the accused-appellant, beyond all reasonable doubt, with abetting commission of

suicide by the deceased.

[21] Therefore, the judgment rendered by the learned trial court, recording conviction of the accused-appellant, appears to have not been based on

evidence on record. There is no evidence of abetment, as defined in Section 107 of the IPC, brought on record by the prosecution, beyond reasonable

doubt. Therefore, in the considered view of this court, the accused-appellant deserves to be acquitted on benefit of doubt.

[22] Accordingly, the appeal is allowed.

[23] Send down the LCR along with a copy of this judgment.