Allowed

Banchanidhi Nanda v. State

Orissa HC4 May 2017CRA/388/1992

Case brief

AI extract

What is this about?

In a criminal appeal under Sections 306 and 498-A IPC, the High Court acquitted the appellant, holding that the trial court erred in convicting him based on unexhibited diary entries not placed before him under Section 313 CrPC and found no evidence of cruelty driving the deceased to suicide.

What did the court decide?

Conviction under Sections 306 and 498-A IPC set aside; appellant acquitted; bail bonds cancelled and surety discharged.

Banchanidhi Nanda Vs State — Maintenance and Alimony | Orissa HC (2017)

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ORISSA HIGH COURT, CUTTACK

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CRA NO. 388 OF 1992

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From the judgment and order dated 30.11.1992 passed by Shri B. Panigrahi, Sessions Judge, Cuttack in S.T. No.32 of 1992.

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Deba Prasad Nanda .....…. Appellant -VersusState of Orissa ……… Respondent For appellant - Dr. Gangadhar Tripathy, Senior Advocate For respondent - Mr. A.N. Das, Additional Govt. Advocate

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PRESENT:THE HON’BLE SHRI JUSTICE SATRUGHANA PUJAHARI

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------------------------------------------------------------------------------------Date of Judgment: 04.05.2017

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S.PUJAHARI, J. This appeal arises out of the judgment of conviction and order of sentence dated 30.11.1992 of the learned Sessions Judge, Cuttack passed in S.T. No.32 of 1992 convicting the appellant and his deceased father under Sections 306 and 498 of the Indian Penal Code, 1860 (for short “the I.P.C.”) and sentencing each of them to undergo R.I. for 5 years

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for the offence under Section 306 of IPC and R.I. for 1 year under Section 498-A of IPC.

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2. It is worth to mention here that as the appellant – Banchanidhi Nanda (the father-in-law of the deceased) had died, case was abated against him during pendency of the

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appeal. The present appellant is the brother-in-law of the deceased.

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3. Prosecution case, as unfolded during trial, bereft of unnecessary details, is that the marriage between the deceased – Binapani and Shiba Prasad Nanda was solemnized on 11.07.1988. The father of the deceased gave articles in the marriage according to his capacity, but in-laws of his daughter used to demand freeze, cow and cash of Rs.10,000/- from their daughter-in-law and used to taunt and harassed his daughter continuously. The deceased had also given birth a female child during that time. The wear and tear of the family were made mountain by the appellant and his father and unable to bear such continuous torture the deceased took shelter in her parental home during September, 1989 where she stayed for nearly five months. In January, 1990 after prolonged persuasion of her father, the deceased proceeded to her in-laws’ house. Few days thereafter, on 17.02.1990 the deceased sent a letter to her father intimating her woeful life where she was being physically assaulted and threatened to be ousted from the house. All such being silly matters out of petty domestic quarrel, the father of the deceased advised her to adjust. Unfortunately, on 18.02.1990 at about 5 p.m., the informant got information that his daughter was seriously ill and when he

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rushed to her marital home, found she was lying dead. Inmates of the house divulged before him that she committed suicide. On the basis of such information, case was registered under Sections 498-A, 306 read with Section 34 of IPC against the present appellant, his deceased father and his mother who was acquitted of the charge. In course of investigation, all incriminating materials were seized. Dead body was sent for postmortem examination where one nail mark on the posterior surface of left forearm and a ligature mark around the neck were found. According to the concerned daughter, cause of death of the deceased was due to asphyxia caused either by suicide or homicide, there being nail mark on the arm and abrasion on lateral aspect of the neck.

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4. Upon investigation, charge-sheet for the offence punishable under Sections 302, 304-B, 306, 498-A of IPC was submitted in the Court of the Magistrate concerned who committed the case to the Court of Sessions for trial. The trial court charged the accused persons, viz. mother-in-law, fatherin-law and brother-in-law of the deceased under Sections 498A, 302, 304-B and 306 of IPC, to which the accused persons pleaded not guilty.

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5. To prove its case, prosecution examined 9 witnesses including the informant, the Investigating Officer and doctors

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who conducted postmortem examination on the dead body of the deceased. In defence, one witness was also examined. Incriminating evidence was put to the accused persons under Section 313 of Cr.P.C. in which they submitted that they were falsely implicated in this case.

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6. On appreciation of the evidence and materials placed on record, the learned trial court held that the deceased committed suicide not due to cruelty caused to her in connection with demand of dowry, but she was subjected to mental cruelty for continuous conduct of harassment by the appellant and his deceased father and convicted them under Section 306 and 498-A of IPC. However, the learned trial court held all the accused persons including the present appellant not guilty of the charge under Sections 302 and 304-B of IPC. The motherin-law was held not guilty of all the charges framed against her.

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7. It has been submitted by the learned counsel for the appellant that the learned trial court has completely erred in appreciating the evidence in holding the appellant guilty under Section 306 and under the first limb of Section 498-A of IPC holding that the continuous conduct of harassment alleging extramarital relationship of the deceased with one Ramakanta Praharaj, causing mental cruelty led the deceased to commit suicide.

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8. The learned counsel appearing for the State has supported the impugned judgment of conviction and order of sentence passed by the learned trial court by placing reliance on analysis of the various facets and scrutiny and scanning of the evidence of the prosecution witnesses including that of the father, brother, sister and the neighbourers.

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9. On a careful studied scrutiny of the findings of the learned trial court, it is noticeable that the learned trial court found that ‘cruelty’ as alleged by the prosecution under Section 498-A and 306 of IPC was established as result of which the deceased committed suicide. It is quite clear from the findings and the evidence on record that there was no demand of dowry. The learned trial court has proceeded on the basis that there was cruelty as per first limb of Section 498-A of IPC. The singular issue that requires to be scrutinized is whether there was such cruelty caused by the appellant which could have driven the deceased to commit suicide. In the admitted factual backdrop what is to be seen is whether there has been a ‘cruelty’ which compelled her to commit suicide. In this regard, it would be appropriate to refer Section 498-A of IPC which reads as under :-

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“ S. 498-A . Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with

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imprisonment for a term which may extend to three years and shall also be liable to fine.”

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Explanation.- For the purposes of this section, ‘cruelty’ means –

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(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

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(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 is on account of failure by her or any person related to her to meet such demand.”

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10. The Apex Court in the case of Girdhar Shankar Tawade v. State of Maharashtra, (2002) 5 SCC 177

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examining the scope of 498A, has observed thus :-

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“The basic purport of the statutory provision is to avoid “cruelty” which stands defined by attributing a specific statutory meaning attached thereto as noticed hereinbefore. Two specific instances have been taken note of in order to ascribe a meaning to the word “cruelty” as is expressed by the legislatures: whereas Explanation (a) involves three specific situations viz. (i) to drive the woman to commit suicide or (ii) to cause grave injury or (iii) danger to life, limb or health, both mental and physical, and thus involving physical torture or atrocity, in Explanation (b) there is absence of physical injury but the legislature though it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury: whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of “cruelty” in terms of Section 498-A.”

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Further, the Apex Court in the case of Gurnaib Singh vrs. State of Punjab, (2013) 7 SCC 108, while analyzing the

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aforesaid provision, has held that Clause (a) of the Explanation to Section 498A IPC defines cruelty to mean “any willful conduct which is of such a nature as is likely to drive the woman to commit suicide”. Clause (b) of the Explanation pertains to unlawful demand and Clause (a) can take in its ambit mental cruelty.

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11. Such statutory provisions of first limb of Section 498A of IPC refers to ‘cruelty’ which has nothing to do with demand of dowry. In the present case, as held by the learned trial court, there is no demand of dowry. In fact, there is no such demand embodied in the F.I.R. lodged on that fateful date of occurrence. If the evidence is carefully appreciated, deceased was pained and disturbed for the conduct of harassment of the appellant and his deceased father, the allegation that she allegedly having illicit affairs with one Ramakanta Praharaj prior to her marriage; Whether such a situation would amount to cruelty under the first limb of Section 498A of IPC is to be seen.

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12. Reverting back to the fact of this case, it is seen that there is no such averment in lengthy F.I.R. where it is only indicated that over “family wear and tear” the appellant and his father used to picked up a quarrel with the deceased and misbehaved her but unable to bear such embarrassment, the deceased took shelter in her parental home for nearly five

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months whereafter on 17.02.1990 the father of the deceased after long persuasion left her in the matrimonial home where on 18.02.1990 she committed suicide. The learned trial court in paragraph-16 of its judgment relied upon the entries made in a Diary not exhibited during trial reached to an erroneous conclusion that the appellant having regularly teased the deceased alleging, she having premarital relationship with another person, unable to bear such mental cruelty she committed suicide which according to the trial court attracts the mischief of first limb of Section 498-A of IPC. This conclusion is fallacious. Prosecution did not choose to exhibit the Diary even though few pages of Diary were sent to the handwriting expert who under his report, Ext.10 has opined that red enclosed disputed signature stamped by him as Q-1 to Q-4, Q-6 to Q-13 and Q-15 were written by the person who wrote the red enclosed admitted writings marked Exts.A-1 to A-2. However, the defence has exhibited 3 pages of the Diary marked as Exts.A, B and C. Ext.C is said to be the “suicide note” of the deceased which is marked as Q-3 by the handwriting expert where it is written by the deceased that “MO MRUTYU PAIN KEHI DAI NUHANTI”. Ext.A which is marked as Q-2 by the handwriting expert does not in any way attributed any stigma to the appellant where few emotional and sentimental words have been written and

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subsequently scored out leaving two lines. Ext.B which is marked as Q-4 is also relates to ‘suicide’ wherein it is also written “MO MRUTYU PAIN KEHI DAI NUHANTI”. However, the learned trial court laid much emphasis on entries made in page58, 61, 62 and 63 of the Diary not exhibited by the prosecution or defence, but marked as Q-6, Q-7, Q-8 and Q-10 by the handwriting expert. Otherwise, those entries are mere general remarks of the deceased relating to her life not casting any aspersion on the appellant and his deceased father. It is not known how the trial court has observed that entries made in page-61 and 62 indicates mental torture. One cannot forget that the informant has indicated all such events as ordinary wear and tear of the family as incorporated in the F.I.R. Moreover, all such incriminating materials brought on record by the prosecution as held by the trial court were not brought to the notice of the appellant in his statement recorded under Section 313 of Cr.P.C. Only in Question No.14 of the statement of the appellant recorded under Section 313 of Cr.P.C., it is stated as under :-

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“Q.No.14. P.W.8 further says that he sent the diary, letters and a paper that (Ext.C) to the handwriting expert for his opinion and the opinion of the handwriting expert has been marked as Ext.10. What have you to got to say?

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In Question No.13 it is brought to the notice of the appellant that “he had produced the Diary and P.W.2 proves the page-95, 94, 63, 61, 59 and 58 in the said Diary to be in the handwriting of the deceased”. Nowhere it is stated what were the contents of those pages to bring those materials to the knowledge of the appellant to provide him an opportunity to answer. When the entire incriminating materials as per prosecution were not brought to the knowledge of the appellant, using such material against him is contrary to law. Examination of accused under Section 313 of Cr.P.C. in a Sessions Trial is not a mere formality. In every enquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court shall after the witnesses for the prosecution have been examined and before he is called upon for his defence questioned him generally on this case. This provisions contained in Section 313 Cr.P.C. is exist on one of the most fundamental to be observed in a criminal trial that the accused should be called upon to explain the evidence against him and should thus be given an opportunity of stating his own case. It is the elementary rule of justice. In the case of Basaavaraj R. Patil vrs. State of Karnataka, 2008(8) SCC 740, the Apex Court has discussed about the aim and object of Section 313 Cr.P.C. and observed as follows :-

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“Section 313, Cr.P.C. is mainly intended to benefit the accused and as its corollary to benefit the Court in reaching the final conclusion. The provision is not intended to nail him to any position, but to comply with the most salutary principle of natural justice enshrined in the maxim audi alteram partem. The word “may” in clause (a) of sub-section (1) in Section 313 of the Code indicates, without any doubt, that even if the court does not put any question under that clause the accused cannot raise any grievance of it. But, if the Court fails to put the needed question under clause (b) of the sub-section it would result in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him.”

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It is now settled beyond dispute by a catena of judicial pronouncements that every circumstances on which the trial court relies to hold an accused guilty, must be put to the accused persons and his answers sought thereto. The very purpose of Section 313 Cr.P.C. will stand defeated if a trial court without affording any opportunity to the accused of extending the circumstances which appear to the trial court to be incriminating in nature bases its conviction on such circumstances. It is in this view of the matter that the examination of an accused person under Section 313 Cr.P.C. is a solemn act of a trial court and it cannot and must not be treated as an empty formality. Such failure caused prejudice to the accused affecting his conviction. It is trite law, nonetheless fundamental that each material circumstances must be put to the accused to enable him to extend it. Here, all such

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incriminating materials used against the appellant being not put to him in statement under Section 313 Cr.P.C., used of such material against him has caused irreparable injury and prejudice which cannot otherwise be compensated save and except discarding such piece of evidence against him. Only three entries of the Diary have been proved on behalf of the defence. The Diary as a whole when not exhibited and when entries made therein not brought to the notice of the appellant, utilizing such averments against the appellant is contrary to law and cannot be used to inculpate him. That apart, even if it is assumed that all entries of Diary have been admitted and brought to the knowledge of the appellant, even then that piece of evidence is not just and sufficient to cause any “mental cruelty” which would attract for satisfying the ingredients of Sections 306 and 498-A of IPC.

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13. No doubt, “mental cruelty” varies from person to person depending upon the intensity and degree of endurance, some may meet with courage and some others suffer in silence, to same it may be unbearable and a weak person may think up ending one’s life. In the facts of the present case, the alleged teasing of the deceased alleging her pre-marital relationship was not of such nature as to drive a woman to commit suicide. As

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the evidence would show that the deceased left the matrimonial

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home for some reasons or other, prosecution alleged one thing and defence alleged another thing that she being comparatively of a very rich family she was reluctant to stay with them, they being almost poor compared to her status. In such circumstances, when on 17.02.2008 she was almost compelled by her parents to join her husband on 18.02.2008 she committed suicide as alleged by the prosecution. She was guided by suspicion that she may be physically assaulted and driven out she having such extramarital relationship which aggravated her fear and apprehension which has no boundary. The seed of suspicion planted in mind apparently brought the eventual tragedy. But, such an event will not constitute the offence to establish guilt of the appellant under Sections 498-A and 306 of IPC in the face of the concrete findings of the Apex Court.

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14. Another gross infirmity writ large on record is that P.W.4, the doctor who conducted postmortem examination on the dead body of the deceased on 19.02.1990 considering the nail mark on the arm and abrasion on the lateral aspect of the neck, opined that such injuries are suggestive of the fact with homicidal death. But, when the alleged suicide note marked as Ext.C proved on behalf of the defence revealed that no one responsible for such suicide the trial court swayed by such

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averment and reached to a conclusion that it was a case of ‘suicide’.

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15. Therefore, there is no strong reason to agree with the judgment of conviction passed by the trial court against the appellant and his deceased father. In my considered opinion, the evidence adduced as against the appellant does not establish the case of the prosecution under Sections 498-A and 306 of IPC and on the basis of such evidence, conviction of the appellant cannot be sustained.

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16. Consequently, for the aforesaid reasons, this criminal appeal is allowed. The conviction under Sections 306 and 498-A of IPC is set-aside. The appellant is acquitted of the charge. The bail bonds shall stand cancelled and surety stands discharged.

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L.C.R. received be sent back forthwith along with a copy

of the Judgment.

……………………..…

S.Pujahari, J.

Orissa High Court, Cuttack, The 4^th day of May, 2017 /MRS

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