Partly allowed

Ashish Chakraborty v. State of Jharkhand

Jharkhand HC7 Feb 2019Cr.A(SJ)/1068/2004

Case brief

AI extract

What is this about?

In this criminal appeal regarding abetment of suicide and cruelty, the High Court held that the presumption under Section 113-A of the Evidence Act is not automatic. The court acquitted the appellant of abetment of suicide due to lack of evidence regarding cruelty soon before death, but upheld the conviction for cruelty.

What did the court decide?

Appellant acquitted of Section 306 IPC. Conviction under Section 498A IPC upheld.

Ashish Chakraborty Vs State of Jharkhand — Murder and Culpable Homicide | Jharkhand HC (2019)

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Criminal Appeal (S.J.) No. 1068 of 2004

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----------- [Against the judgment of conviction dated 24.02.2004 and order of sentence dated 27.02.2004, passed by the learned Additional District & Sessions Judge, Fast Track Court No.-IX, East Singhbhum, Jamshedpur in Sessions Trial No. 214 of 2002.]

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Ashish Chakraborty …. …. …. Appellant --Versus-The State of Jharkhand …. …. …. Respondent For the Appellant : Mr. Birendra Kumar, Amicus Curiae For the Respondent-State : Mr. V.K. Tiwary, A.P.P.

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PRESENT

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HON’BLE MR. JUSTICE RAJESH SHANKAR

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By Court : The present appeal has been preferred against the judgment of conviction dated 24.02.2004 and order of sentence dated 27.02.2004 passed by the learned Additional District and Sessions Judge, Fast Track Court-IX, East Singhbhum, Jamshedpur in Sessions Trial No. 214 of 2002, whereby the appellant has been convicted and sentenced under Section 498A of IPC to undergo rigorous imprisonment for 27 months and fine of Rs. 500/- and in default of payment of fine, to undergo further S.I of one month. The appellant has also been convicted and sentenced under Section 306 of IPC to undergo rigorous imprisonment for five years and fine of Rs. 500/- and in default of payment of fine, to undergo further S.I for one month. Both the sentences have been directed to run concurrently.

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2. The prosecution story in brief, as stated in the fardbeyan of the informant (Ashok Kumar Chakraborty) recorded on 24.10.2001 at about 9.45 hours, is that the informant’s daughter namely Monika Chakraborty @ Nupur (the deceased) was married to the appellant Ashish Chakraborty on 23.11.2000 and was residing in her matrimonial home at Persudih Bazar, P.S. Persudih, district- East Singhbhum. After two months of her marriage, her husband Ashish Chakraborty (appellant), mother-in-law Rewa Chakraborty and brother-in-law Ashim Chakraborty started demanding dowry and due to non-fulfillment of the same, they tortured and assaulted her. On 23.10.2001 at about 11.45 a.m., the brother of the informant received information on telephone that the deceased sustained burn injury and was taken to M.G.M Hospital. After reaching the hospital, the

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informant came to know that an incident of burning occurred in the morning at about 8.00 a.m. The deceased was admitted in the M.G.M. hospital but referred to T.M.H., BCU Ward at about 4.52 pm for better treatment. Subsequently, she died at about 6.00 pm in the said hospital. It has been alleged by the informant that his daughter was burnt to death by the accused persons for dowry.

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3. On the basis of the fardbeyan, an FIR being Persudih P.S Case No. 164 of 2001 was instituted on 24.10.2001 under section 304B/34 of IPC against the present appellant, Ashim Chakraborty (the brother-in-law of the deceased) and Rewa Chakraborty (the mother-in-law of the deceased). After investigation, the chargesheet was submitted against the appellant and the other accused persons on 20.02.2002 u/s 304B/34 of IPC. After cognizance, the case was committed to the court of sessions for trial. Charge was framed against all the accused persons on 18.02.2003 under Sections 498A/306/304B of IPC. The statements of accused persons including the appellant were recorded under Section 313 of Cr.P.C. on 13.02.04 in which they denied the allegations levelled against them.

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4. The court blow vide judgment dated 24.02.2004 acquitted all the accused persons for the offence under Section 304-B of the I.P.C. The accused Ashim Chakraborty was also acquitted for the offences under Section 306 and 498-A of I.P.C. So far the present appellant and accused Rewa Chakraborty (mother-in-law) are concerned, they were convicted under Section 306 and 498-A of I.P.C. However, having regard to the poor physical condition of Rewa Chakraborty, her age and continuous custody for about 27 months, she was sentenced to imprisonment for the period already undergone with a further direction to pay a fine of Rs.500/- and in default thereof, to undergo S.I. for further one month. The appellant was awarded the sentence of imprisonment as stated in paragraph-1 hereinabove.

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5. The learned Amicus Curiae appearing for the appellant while assailing the impugned judgment submits that the prosecution failed to prove the case against the appellant beyond the shadow of reasonable doubt. It is further submitted that the independent witness-P.W.1 has not supported the case of the prosecution and has been declared hostile. The allegations levelled against the present appellant are vague in nature. It is also submitted that the conviction under section 498-A of the IPC does not

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necessarily lead to an inference of the commission of an offence under section 306 of the IPC unless it is established that alleged cruel treatment, which is said to have resulted in the death of the deceased, was meted out soon before her death. It is further submitted that the learned court below failed to appreciate that if a woman commits suicide within seven years of her marriage and she was subjected to cruelty by her husband and relatives, does not automatically give rise to the presumption that such suicide has been abetted by her husband or relatives of her husband. The learned court below also failed to look into all the other prevailing circumstances of the case. The learned court below also did not appreciate the fact that no evidence was brought on record by the prosecution to suggest that any provocation was made by the appellant leading the deceased to commit suicide.

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6. Heard the learned Amicus Curie and the learned A.P.P. for the State. The learned amicus curie has assiduously contended that the conviction under section 498-A of the IPC does not necessarily lead to an inference of commission of an offence under section 306 of the IPC unless it is established that alleged cruel treatment which is said to have resulted in the death of the deceased by committing sucide, was meted out soon before her death. In support of his contention, the learned Amicus Curiae puts reliance on a judgment rendered by the Hon’ble Supreme Court in the case of Raj Babu & Another VS. State of M.P reported in (2008) 17 SCC 526 and Deepak Vs. State of Chhattisgarh (Criminal Appeal No. 36 of 2017) .

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7. To appreciate the contentions of the parties, I have perused the evidence of the witnesses adduced before the learned trial court and also perused the aforesaid judgments.

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8. To substantiate the charges levelled against the accused persons, altogether seven witnesses were examined by the prosecution i.e. P.W. 1- Vijay Kumar Shah, P.W. 2 Ashok Kumar Chakraborty (the informant), P.W. 3 - Falguni Chakraborty, P.W.4- Kamal Kumar Chakraborty, P.W. 5 - S.I Ram Chandra Ram, I.O. of the case), P.W. 6-Subodh Kumar Chakraborty, P.W. 7- Dr. Niranjan Minz . However, P.W. 1 and P.W. 6 were declared hostile by the prosecution.

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9. P.W. 2- Ashok Kumar Chakraborty (father of the deceased) is the informant of the case. He supported the statement recorded in the fardbeyan. He deposed that after about two months of marriage of his daughter, the accused persons started demanding T.V, Vehicle and furniture and the deceased used to tell him about such demand and on asking about the torture, she used to keep mum but used to weep. He further deposed that the appellant had brought back the deceased to his house where she was consoled and sent to the in-laws house on 19.09.2001.

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10. P.W. 3 Fulguni Chakraborty is the younger sister of the deceased. She also deposed that after few days of marriage, the accused persons used to assault the deceased for demand of dowry. She further deposed that the accused were not happy with the dowry given to them at the time of marriage. She had gone to the matrimonial house of the deceased where the deceased had informed her that the accused persons were harassing her for demand of dowry.

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11. P.W. 4 Kamal Kumar Chakraborty is the uncle of the deceased. He deposed that his brother had informed him that after few months of marriage, the in-laws of the deceased were demanding dowry. He also deposed that he went to the house of the accused persons and made them understand not to torture the deceased as the financial condition of her father was not good.

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12. In the case of Deepak (supra), the Hon’ble Supreme Court has held as under:-

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“7. In the present case there is a conviction under section 498A which means that there was cruel treatment to the wife by the husband but there is no credible evidence that there was cruelty meted out to her soon before her death, so as to make the cruelty cause to her death. It is possible that the deceased decided to end her life because she was in a depressed state of mind as is apparent from the letter produced in evidence. “

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13. In the aforesaid case, the Hon’ble Supreme Court on finding no evidence to suggest that the deceased was subjected to cruelty soon before her death, acquitted the appellant for the offence under section 306 of IPC.

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14. In the case of Rajbabu and Another v. State of M.P. (supra),

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the Hon’ble Supreme Court has held as under:-

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“18. In the instant case there is no direct evidence to establish that the appellant either aided or instigated the deceased to commit suicide or entered into any conspiracy to aid her in committing suicide. In the absence of direct evidence the prosecution has relied upon Section 113-A of the Evidence Act, under which the court may presume on proof of circumstances enumerated therein, and having regard to all the other circumstances of the case, that the suicide had been abetted by the accused. The Explanation to Section 113-A further clarifies that cruelty shall have the same meaning as in Section 498-A IPC.

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19. Under Section 113-A of the Evidence Act, the prosecution has first to establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband or any relative of her husband had subjected her to cruelty. Section 113-A gives a discretion to the court to raise such a presumption, having regard to all the other circumstances of the case, which means that where the allegation is of cruelty it must consider the nature of cruelty to which the woman was subjected, having regard to the meaning of the word “cruelty” in Section 498-A IPC.

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20. The mere fact that a woman committed suicide within seven years of her marriage and that she had been subjected to cruelty by her husband or any relative of her husband, does not automatically give rise to the presumption that the suicide had been abetted by her husband or any relative of her husband. The court is required to look into all the other circumstances of the case. One of the circumstances which has to be considered by the court is whether the alleged cruelty was of such nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman. The law has been succinctly stated in Ramesh Kumar v. State of Chhattisgarh [(2001) 9 SCC 618 : 2002 SCC (Cri) 1088] wherein this Court observed: (SCC pp. 626-27, para 12)

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“12. This provision was introduced by the Criminal Law (Second) Amendment Act, 1983 with effect from 26-12-1983 to meet a social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide by the husband or in-laws and incriminating evidence was usually available within the four corners of the matrimonial home and hence was not available to anyone outside the occupants of the house. However, still it cannot be lost sight of that the presumption is intended to operate against the accused in the field of criminal law. Before the presumption may be raised, the foundation thereof must exist. A bare reading of Section 113-A shows that to attract applicability of Section 113-A, it must be shown that (i) the woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the abovesaid circumstances, the court may presume that such suicide had been abetted by her husband or by such relatives of her husband. Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory; it is only permissive as the employment of expression ‘may presume’ suggests.

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Secondly, the existence and availability of the abovesaid three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the court shall have to have regard to ‘all the other circumstances of the case’. A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the court to abstain from drawing the presumption. The expression—‘the other circumstances of the case’ used in Section 113-A suggests the need to reach a cause-and-effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least, the presumption is not an irrebuttable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase ‘may presume’ used in Section 113-A is defined in Section 4 of the Evidence Act, which says—‘Whenever it is provided by this Act that the court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.’ ”

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(emphasis in original)

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15. In the aforesaid judgment, the Hon’ble Supreme Court has held that so far raising presumption under section 113-A of the Evidence Act, 1872 the court has to look into the other circumstances also. Merely by the fact that the suicide was committed within seven years of marriage and the deceased was subjected to cruelty by her husband or any of her in-laws does not automatically give rise to the presumption that the suicide had been abetted by her husband or her in-laws.

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16. In the present case, the learned trial court in the impugned judgment has specifically observed that the deceased was brought to her parental house in the month of July, 2001 and she remained there till 19.09.2001 and thereafter returned to her matrimonial home. The depositions of witnesses including the informant (PW-2) and Falguni Chakraborty (PW-3) do not suggest that they, at any time, after going back of Monika (the deceased) to her-in-laws house in September, 2001, had heard about the demand of dowry or her harassment for the same. It has also been observed by the learned trial court that the statements of witnesses recorded under Section 161 Cr.P.C were absolutely silent about any demand of dowry or harassment for the same during the said period. However in para 23 of the impugned judgment, the learned trial court has observed that the suicide was committed within one year of marriage and the husband and mother-in-law of the deceased had subjected her to cruelty as envisaged under section 498-A of the IPC. It has thus been held that the husband and mother-in-law of the deceased had abated her to

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commit suicide and found guilty for the offences under Sections 306 and 498-A of I.P.C.

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17. The learned court below while convicting the appellant under Section 306 of IPC has however not taken into consideration of ‘any other circumstance’ as was required to be seen before raising the presumption under section 113A of the Evidence Act. The learned trial court proceeded to convict the appellant under section 306 of IPC merely by the fact that the ingredients of section 498A of IPC are completely against him. The learned court below overlooked the ingredients of section 113A of the Evidence Act, 1872 as also the law laid down by the Hon’ble Supreme Court in the aforesaid judicial pronouncements. After considering the aforesaid fact, I am of the view that the prosecution has failed to establish the fact that soon before her death, the deceased was subjected to cruelty. However, so far as the conviction of the appellant under section 498A of the IPC is concerned, P.Ws. 2, 3 and 4 are consistent with regard to the factum of cruelty on his part subjected to the deceased for demand of dowry.

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18. In view of the aforesaid discussion, I do not find any infirmity in the order of conviction of the appellant under section 498-A of IPC. However, since there is no direct cogent and credible evidence to link the involvement of the appellant soon before the death of the deceased, I consider it appropriate to acquit the appellant under Section 306 of IPC. Since, it appears from the record that the appellant has remained in judicial custody for more than the awarded sentence under section 498-A of IPC, he is discharged from the liability of his bail bond.

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19. The present appeal is, accordingly, partly allowed.

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Jharkhand High Court, Ranchi Dated, 07^th February, 2019 Ritesh/A.F.R.

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(RAJESH SHANKAR, J.)

Ashish Chakraborty v. State of Jharkhand

Case brief

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Ashish Chakraborty v. State of Jharkhand

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