Rabindra Nath Mondal & Ors @APPELLANT@Hash State of West Bengal

Rajarshi Bharadwaj, J.

The instant appeal has been preferred by the appellants assailing the judgement and order dated 16th December, 1996 passed by the learned

Additional Sessions Judge, Tamluk in S.T. Case no. 1(9) 95, convicting the accused/appellants under Sections 498A/306 of the Indian Penal Code and

sentencing Rabindra Nath Mondal and Birendra Nath Mondal, being the accused/appellant nos. 1 and 2 respectively to suffer rigorous imprisonment

for one year for the offence punishable under Section 498A of the Indian Penal Code and also to suffer rigorous imprisonment for two years for the

offence punishable under Section 306 of the Indian Penal Code and further sentencing Smt. Arati Bala Mondal, the accused/appellant no. 3 to suffer

rigorous imprisonment for one year for the offence under Section 498A of the Indian Penal Code and to suffer further rigorous imprisonment for one

year for the offence punishable under Section 306 of the Indian Penal Code and all the sentences were directed to run concurrently.

The prosecution case as narrated in the First Information Report lodged on 6th July, 1988 by Kamal Kumar Manna, the brother of an ill-fated bride

before the Officer-in-Charge of Chandipur Police Station, is that in the year 1393 B.S. the victim Rekha Rani was married with the accused Rabindra

Nath Mondal as per Hindu rites and customs and in the said marriage dowry was given to the bridegroom to the satisfaction of demand, but after few

days of marriage, both mental and physical torture was started upon Rekha Rani by her husband and his inmates and finally she was driven out from

her in-law’s house. The victim lady had no other alternative but to go to her father. Thereafter, her father went to Uttarbarabari, the village of the

accused persons with some respectable persons and in presence of the villagers of Uttarbarabari, the dispute was settled in two or three occasions

and thereafter, Rekha was sent back to the house of the accused persons.

But unfortunately all those honest efforts on the part of the father of Rekha yielded no fruitful result and as such torture upon Rekha in the house of

the accused continued as before demanding more dowry from her father’s house. Lastly, Rekha being unable to tolerate the constant torture by

her husband, husband’s brother and wife of the husband’s brother, committed suicide on the ill-fated night, i.e. 5th July, 1988. On the next day

morning, i.e. 6th July, 1988, Saktipada Bera and Buddhadeb Mondal came from Uttarbarabari and informed the complainant about the tragic incident

of suicide and end of life of Rekha. Being informed, the complainant with some villagers and panchayat members went to the house of the accused

persons and they came to know from the neighbours of the accused persons that severe torture and assault were made upon Rekha on the eventful

day and also on the previous day and for that reason Rekha Rani died.

On the basis of the written complaint, a criminal case, being Chandipur P.S. Case no. 1 dated 6th July, 1988 was initiated. The post mortem of the

dead body of Rekha was held at Tamluk S.D. Hospital, wherein the doctor opined that the death was due to hanging and was suicidal in nature.

Investigation was started and after completion of investigation, charge sheet was submitted under Sections 498A/306 of the Indian Penal Code against

the accused persons, who pleaded not guilty and claimed to be tried.

Learned advocate for the appellants submitted that the First Information Report was written at local political party office, which was written as per

instruction of the said political party. He pointed out that Kamal Kumar Manna, elder brother of the deceased, who lodged the complaint, was not

examined by the police, but he deposed in Court. The most vital witness being P.W.9, Buddhadev Mondal, who was the uncle’s son of the

appellant no.1/husband, had been living in the adjacent room, was not examined by the police, but he deposed in Court. He further submitted that there

were vital contradictions and omissions in the version of the witnesses. The father of the victim, Arjun Manna, P.W.2 was examined by the police

after one week from the date of the death of the victim and he deposed that his daughter was very sentimental and very fond of him. P.W.2 further

stated that his elder brother/appellant no.2 told him that his daughter was eunuch, but he did not tell before the Investigating Officer that the victim

was eunuch. Similarly P.W.3 and P.W.4, who were the vital witnesses as well as the uncle-in-law and aunt-in-law of the victim, were contradicting

with their earlier statement before the Investigating Officer. Similarly, P.W.10 to P.W.18 were vitally contradicting with their earlier statements before

the Investigating Officer, P.W.21. He further submitted that the mother of the victim, Renuka Manna, P.W.13 did not state before the Investigating

Officer that two months before the death of the victim and also whenever the victim went to their house she told her about the torture made by the

accused Rabin and Arati upon her. Therefore, the prosecution has measurably failed to prove the case beyond reasonable doubt.

In support of his submission, learned advocate for the appellants relied upon the decision of the Hon’ble Supreme Court in the case of Tarun @

Gautam Mukherjee â€"vs- State of West Bengal reported in 2003 SCC (Cri) 1052 and he also relied on the decision of the Hon’ble Supreme

Court in the case of B. Virupakshaiah â€"vs- State of Karnataka & Ors. reported in (2016) 4 SCC 595. Lastly, he relied on a decision of the

Hon’ble Supreme Court in the case of Sanju @ Sanjay Singh Sengar â€"vs- State of M.P. reported in 2002 SCC (Cri) 1141.

Thus, he prayed that the appeal may be allowed by setting aside the order of conviction and sentence passed by the learned Judge. Learned advocate

for the State submitted that death of the victim occurred within seven years of her marriage as evident from the First Information Report. He

submitted that evidence as to the torture upon the victim by the appellants has been proved by the prosecution witnesses. P.W.17, neighbour of

Uttarbarabari specifically stated that on the date of occurrence in the morning he went to the house of the accused persons hearing shouting and

found the accused Rabin assaulting his wife. In cross-examination P.W. 17 stated that he informed all the facts of assaults to the Investigating

Officer. He submitted that evidence regarding torture upon the victim by the appellants has been proved by P.W.3, P.W.4, P.W.9, P.W.10, P.W.13,

P.W.17. He also submitted that in view of the statutory presumption under Section 113A of the Evidence Act, the conviction of the appellants under

Section 306 of the Indian Penal Code does not call for interference. Thus, he prayed for dismissal of the appeal.

Heard learned advocates for the parties and perused the impugned judgement. In the instant case the prosecution examined as many as 21 witnesses

to prove the charges of cruelty and abetment. P.W.1, Kamal Kumar Manna, elder brother of the victim as well as he de facto complainant of this

case stated in his deposition that his sister Rekha Rani was married with the accused Rabin Mondal of the village Uttarbarabari, Chandipur in the year

1392 B.S. accordig to Hindu rites and there were talks about payment of dowry and a sum of Rs. 6,000/- and gold ornaments and articles were given

as dowry in that marriage. After marriage the accused Rabin Mondal assaulted the victim and drove her out of his house. He stated in his evidence

that Subhas Jana, Arjun Manna, Panchanan Thander and others went to the village of the accused persons to settle the dispute. Thereafter, his father

and some villagers settled the dispute and Rekha continued to live with her husband. On 6th July, 1988 two villagers Saktipada Bera and Buddhadev

Mondal came to his house and informed him that the victim died by hanging. He came to Chandipur Police Station and saw that the dead body of the

victim was kept in a bag and the mouth of the bag was tied. He learnt from some villagers that the victim was tortured and put her to death.

Thereafter, he lodged written complaint in Chandipur Police Station and Subhas Chandra Jana, P.W.11 wrote the written complaint as per his

instruction.

P.W.2, Arjun Manna, father of the victim stated in his deposition that his daughter was married with the accused Rabin Mondal on 20th Falgoon, 1392

B.S. and after one year of marriage the dispute arose. The elder brother of the accused Rabin named Biren Mondal told him that the victim Rekha

was eunuch. The doctor examined the victim and opined that she was potent. After examination he along with Subhas Jana, Panchananthandr and

Dhiren Maity went to the house of Prabir Mondal and a settlement was made there and thereafter, the accused Rabin and Prabir Mondal took the

victim to the house of the accused persons. After that he heard that the victim died. He further stated that the accused Biren Mondal demanded a

loan of Rs. 4,000/- from him to establish a shop. He was examined by the Investigating Officer after the death of the victim and he supplied photo

copies of two letters of Biren and Rabin to the police. He identified the accused Biren and Rabin, who were present in Court. He further deposed that

the accused Rabin is of bad character and Rs. 6,000/- along with gold ornaments and utensils was given to the victim’s husband as dowry.

P.W.3, Gobardhan Mondal, neighbour of the accused persons stated in his evidence that the victim Rekha Rani died 6/7 years ago. The accused

Rabin used to assault the victim being instigated by other two accused namely, Biren and Arati complaining that the victim could not cook and as such

they would not be able to eat. Being instigated the accused Rabin assaulted the victim mercilessly. Thereafter, he went to the market and after coming

back he got the information that the victim committed suicide by hanging. He wanted to see the dead body of the victim but the accused Rabin did not

allow him to see the dead body. He stated that before the alleged incident he saw the accused Rabin to assault the victim twice or thrice.

P.W.4, Smt. Chidan Bala Mondal, relative of the accused persons corroborated the evidence of P.W.3.

P.W.5, Bijay Krishna Mondal was declared hostile by the prosecution.

P.W.6, Samit Pradhan, neighbour of the accused persons stated in his deposition that the accused Rabin had quarrelled with his wife Rekha and

Rekha died about 7/8 years ago. On the date of incident when he was going to the Hat, he heard that the wife of the accused Rabin died. On the next

day he saw the dead body of the victim and found a mark of injury on the left cheek of the victim.

P.W.7, Dhirendra Nath Maity, co-villager of Arjun Manna, the father of the victim stated in his evidence that the victim told him when she went to her

father’s house that the wife of the elder brother of the accused Rabin used to torture her.

P.W.8, Netai Pramanik, neighbour of the accused persons stated in his evidence that he knew the victim and the accused persons and one year before

her death she was married with the accused Rabin. After death of the victim he went to the house of the accused but he did not see the dead body of

the victim.

P.W.9, Bhudeb Mondal, neighbour of the accused persons deposed that Rekha died about seven years ago. The accused Rabin used to assault the

victim Rekha and the accused Arati used to abuse her.

P.W.10, Pankaj Kumar Nayek, teacher of a primary school in village Uttarbarabari stated that the victim committed suicide by hanging 7/8 years ago.

Due to financial reasons the accused persons used to misbehave with Rekha. He further stated that the father of the victim informed him about the

dispute regarding dowry and he asked the accused Biren for settlement of the dispute. Accordingly, the matter was compromised but again the dispute

cropped up regarding dowry and the victim committed suicide. The victim was not well treated by the accused.

P.W.11, Subhas Jana, who corroborated the evidence of P.W.2 that he along with the victim’s father and Prabir Mondal and two others were

present in the ‘Salish’ held at Uttarbarabari village for settlement of dispute by saying that the accused Rabin and Biren demanded some money

from Arjun Manna. He wrote the written complaint as per instruction of P.W.1, Kamal Manna.

P.W.12, Panchanan Thunder stated in his examination in chief that the accused Rabin did not behave well with the victim Rekha.

P.W.13, Smt. Renuka Manna, the mother of the victim stated in her evidence that her daughter Rekha was married with the accused Rabin about 10

years back and Rekha died about 7 years back. The accused Rabin and his boudi Smt. Arati Mondal used to torture the victim. Rekha told her that the

accused Rabin did not love her and used to assault her. She further stated that the accused Rabin had mixing with his elder brother’s wife Smt.

Arati Mondal. In cross-examination P.W. 13 stated that after marriage Rekha visited her house 4/5 times and in one occasion she kept the victim

Rekha for a period of 5/7 months as she was assaulted mercilessly in her matrimonial home.

P.W.14, Smt. Nehar Bala Mondal stated that before death of the victim, Rekha told her that the accused Rabin used to live with her brother’s

wife.

P.W.15, Biroj Mohon Ber, who was the police officer, held inquest of the dead body of Rekha and proved the inquest report, which showed that there

had been no injury mark on the dead body excepting one rope mark on her neck. He stated that it was a suicidal case by hanging.

P.W.16, Bhudeb Mondal, neighbour of the accused persons stated that he knew the victim, who died about 7/8 years ago. He went to inform the

accused Biren who was in market.

P.W.17, Subal Jana, neighbour of the accused persons stated in his evidence that on the date of occurrence in the morning he went to the house of the

accused persons hearing shouting and found the accused Rabin assaulting his wife.

P.W.18, Bidyut Guchhait, a schoolteacher of Khodambari High School stated that he did not know the accused persons. He was examined by the

Investigating Officer in connection with this case.

P.W.19, Tapas Roy, Police Constable stated in his evidence that he accompanied with Biraj Mohan Barman to conduct inquest over the dead body of

the victim.

P.W.20, Achintya Kumar Das Adhikari, Medical Officer stated that on 7th July, 1988 he was attached to Tamluk Sub-Divisional Hospital and on that

day he examined the dead body of one Rekha Rani Mondal in connection with Chandipur P.S. U.D. case no. 17 dated 6th July, 1988 and held the post

mortem report.

P.W.21, Surjya Kanta Roy, Investigating Officer of this case stated that he took the charge of investigation, prepared the sketch map of the place of

occurrence and recorded the statements of Bhudeb Prasad Mondal, Gopal Chandra Maity, Gobardhan Mondal, Smt. Chikanbala Mondal, Smt. Anjana

Mondal, Subal Chandra Jana, Netai Charan Pramanick, Bijay Kumar Mondl, Paresh Giri, Sushil Pradhan and Dhirendra Nath Maity. He submitted the

charge sheet against Rabindra Nath Mondal, Birendra Nath Mondal and Smt. Arati Mondal under Sections 498A/306 of the Indian Penal Code.

On perusal of the evidence on record it appears that it was the specific case of the prosecution that cruelty and harassment was made by the accused

persons upon the victim Rekha, for which Rekha had to commit suicide in her in-law’s house within seven years from the date of her marriage.

Section 113A of the Indian Evidence Act, 1872 reads as follows:

“113A. Presumption as to abetment of suicide by a married woman- When the question is whether the commission of suicide by a woman had

been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the

date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all

the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husand. Explanation â€" For the

purposes of this section, “crueltyâ€​ shall have the same meaning as in Section 498A of the Indian Penal Code.â€​

The said provision provides that Court may draw in the light of attending circumstances a statutory presumption of abetment of suicide in the event a

housewife commits suicide within seven years of marriage provided she was subjected to cruelty by her husband and other in-laws. The cause of

torture of the victim was for demanding dowry though there was no whisper of any claim of dowry in the First Information Report. In the instant case,

cruelty and harassment upon the victim in her in-law’s house have been well proved by the prosecution and accordingly, the accused persons

were convicted for the offences punishable under Sections 498A/306 of the Indian Penal Code. Reliance has been placed by the learned advocate for

the appellants in the case of Tarun @ Gautam Mukherjee â€"vs-State of West Bengal (supra). As per the above judgement, the statement under

Section 161 of the Code of Criminal Procedure and deposition of the witnesses before the Court are differed, but in the instant case there was no

contradiction. Reliance has also been made in the case of B. Virupakshaiah â€"vs- State of Karnataka & Ors. (supra), wherein there were vital

contradictions and omissions in the version of the witnesses, but in the instant case it cannot be said that there is any major contradiction or omission.

Lastly, reliance has been placed on behalf of the appellants in the case of Sanju @ Sanjay Singh Sengar â€"vs- State of M.P. (supra). According to

the above judgement, there was no instigation, but in this case there was serious physical torture and mental cruelty upon the victim by her husband

and his inmates. Therefore, the decisions cited above are not applicable in the instant case. Hence, I uphold the conviction and sentence of the

appellants under Sections 498A/306 of the Indian Penal Code and bail bonds of the appellants are cancelled and they are directed to surrender

forthwith before the trial court.

Period of detention suffered by the appellants during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon them

in terms of Section 428 of the Code of Criminal Procedure. Accordingly, the appeal is dismissed. Copy of the judgement along with Lower Court

Records be sent down to the trial court at once for necessary compliance. Urgent Photostat certified copy of this order, if applied for, be supplied

expeditiously after complying with all necessary legal formalities.