Mohan Sen & Anr Vs. State of West Bengal  Insc 593 (16 May 2007)
S.B. Sinha & Markandey Katju
CRIMINAL APPEAL NO. 743 OF 2007 [Arising out of S.L.P. (Crl.) No. 5950 of
2006] S.B. SINHA, J:
1. Leave granted.
2. Appellants are before us being aggrieved by and dissatisfied with the
judgment of conviction and sentence dated 10.04.2006 passed by a Division Bench
of the Calcutta High Court in Criminal Appeal No. 351 of 2003, affirming a
judgment of conviction and sentence passed by the learned Assistant Sessions
Judge, Burdwan in Sessions Case No. 218 of 1995 under Sections 498A and 306 of
the Indian Penal Code (for short, 'IPC'). The High Court, however, modified the
sentence in respect of charge under Section 306 IPC, reducing it from five
years to three years, so far as the first Appellant is concerned.
3. The prosecution case is as under :
Deceased Bakulbala was married to Appellant No.2 (Gouranga Mohan) in the
year 1991. On 03.02.1994 at about 07.30 a.m. she was found dead at the verandah
of her matrimonial home. Immediately after the occurrence, all the inmates of
the house including the appellants fled away from the house. It was locked.
PW-1, Shyam Sundar Dey, father of the deceased received information about the
death of his daughter. He having reached the place of occurrence found the dead
body of his daughter lying.
A First Information Report was lodged on the same day at about 2105 hrs.
before the officer in charge of Khandaghosh Police Station, alleging
physical and mental torture upon her by all the accused. PW-1 opined that the
deceased committed suicide being unable to bear such torture.
4. The officer in charge of the police station upon receipt of the said
First Information Report arrived at the place of occurrence at about 10.30 p.m. The inquest report of the dead body, however, was conducted on the next day,
which, inter alia, reads as under :
"On primary investigation it was found that the deceased was given in
marriage to Shri Gounrana Mohan Sen, the eldest son of Sri Ananda Mohan Sen of
village Dubrajpur on 21st Magh 1397. Since after her marriage husband,
father-in-law, mother-in-law, brother-in-law, Kartick Sen all combined used to
commit various physical and mental torture on her in connection with household
duties. Yesterday dated 03.02.1994 at about 7 a.m. husband, father-in-law,
mother-in-law andbrother-in- law Kartick abused her again in connection with
household duties and asked deceased Bakul "can you not die by taking
poison? Go out of the house". Being mentally shocked she took poison named
"sumidon" and as a result she died at 7.30 a.m. Many persons know
about the physical and mental torture committed to her.
For ascertaining the real cause of death the dead body is sent to FSM Medical
College, Burdawan through Shankar Das Bairagya, Constable."
EVIDENCE BEFORE THE COURT
5. The post-mortem examination was conducted at about 1230 hrs. on
04.02.1994. Dr. S. Chakraborty (PW-11), the autopsy surgeon, reserved his
opinion in regard to the cause of the death pending chemical examiner's report.
The condition of the heart and contents of the stomach, however, were noticed
therein as under:
Heart All the chamber full of blood and its clots to pinpoint haemorrhage on
Stomach and its contents Non-congested contains 250 ml.
of whitish violate fluid with a smell like that of kerosene.
6. The statements of Smt. Kanan Bala Dey (PW-5), mother of the deceased,
Haradhan Halder (PW-8), a neighbour and relative of PW-1 and Himadri Sekhar Dey
(PW-10), brother of the deceased, were recorded under Section 161 of the Code
of Criminal Procedure. The statements of Smt.
Madhavi Halder (PW-6) and Smt. Bithika Paul (PW-9), aunt and friend
respectively of the deceased were recorded on 12.02.1994. Investigation was
carried out in a slip-shod manner. Viscera was also sent for chemical
examination only on 14.03.1994. It is difficult to appreciate that the
investigating officer took such a long time in sending the article for chemical
examination after such a long time.
7. Before the learned Trial Judge, 13 witnesses were examined on behalf of
the prosecution. Out of the said witnesses, Shib Shankar Ghosh (PW-2) and
Biswanath Mallick (PW-3), who were the residents of the same village as that of
the accused, were declared hostile. Another co-villager of the appellants,
Bhutnath Pal (PW-4) was only tendered for cross-examination.
The investigation was carried out principally by Sub Inspector S.D. Saha
(PW-12). Charge-sheet, however, was submitted by another Investigating Officer,
namely, Sub Inspector M.M. Das (PW-13). Dr. S. Charaborty, who conducted the
post-mortem examination examined himself as PW-11.
8. Appellants herein along with Smt. Shakti Sundari Sen, mother-in-law of
the deceased and Nityananda Sen (brother-in-law of the deceased) were charged
for commission of the offence punishable under Sections 498A and 306 IPC. Smt.
Shakti Sundari Sen died on 14.10.1998. Examination of the witnesses before the
learned Trial Judge also took a long time i.e. between 09.07.2001 and
06.06.2003. The learned Trial Judge found the appellants guilty of commission
of the said offences and sentenced Appellant No. 1 to undergo simple
imprisonment for 2 years under Section 498A IPC and to pay a fine of Rs. 1000/-;
and to undergo simple imprisonment for 5 years under Section 306 IPC and to pay
a fine of Rs. 2,000/-, in default of payment of fine to undergo simple
imprisonment for one and two months under Sections 498A and 306 IPC
respectively; and sentenced Appellant No. 2 to undergo simple imprisonment for
2 years under Section 498A and to pay a fine of Rs.1,000/- and to undergo
simple imprisonment for 8 years under Section 306 IPC and to pay a fine of
Rs.2,000/-, in default of payment of fines to undergo simple imprisonment for
one and two months under Sections 498A and 306 IPC respectively.
9. Appeal preferred by the appellants herein was dismissed by the High Court
by its impugned judgment dated 10.04.2006.
10. It is stated that Nityananda one of the convicted persons committed
11. Mr. Pradip K. Ghosh, learned Senior Counsel appearing on behalf of the
appellants, in support of the appeal, submitted that the High Court committed a
serious error in passing the impugned judgment of the conviction and sentence
insofar it failed to take into consideration that essentially it was a typical
case of a dispute between the mother-in-law and the daughter-in-law. Gouranga
(Appellant No.2 herein) was not residing at the village and in that view of the
matter his presence immediately before the occurrence has not been proved.
Involvement of Ananda Mohan Sen, Appellant No.1, (father-in-law), the learned
counsel Senior Counsel contended, is also not beyond reasonable doubt. In any
event, it was not a case where the ingredients of Section 306 IPC can be said
to have been proved and for arriving at the said conclusion, it was obligatory
on the part of the High Court to conclusively arrive at a finding that the
deceased had committed suicide. A serious error has been committed by the High
Court insofar as it had arrived at certain contradictory or inconsistent
findings which have vitiated the reasonings for recording a judgment of
conviction, namely :
(i) No poison was detected in the viscera;
(ii) There was a long time gap between sending viscera and examination;
(iii) A judicial notice can be taken of the fact that such long gap between
sending of the viscera and the examination thereof would cause the poison to be
degraded and decomposed, for which no authority has been noticed.
(iv) The High Court committed an error in opining :
"Sitting in Appeal we are not supposed to count the errors and take
stock of the mistakes. It would serve no purpose and it would be more
appropriate to find out the remedy rather than to address us with the disease.
xxx xxx xxx Reticence on the part of the court, in our view, has not helped
the matter at all. As observed by us earlier, in a first appeal we would not be
correct to simply locate the fault lines and keep quiet, but it would be
expected of us to salvage the ruins from the debris of a wanting situation and
restore it to its pristine value for giving a wholesome effect to the Criminal
After all we have to achieve the truth and merely like a bad workman not
find fault with the tools of the decision making process."
12. A death whether homicidal or suicidal or accidental in nature would be
determinative of the nature of offence and, thus, the High Court was not
correct in relying upon the decision of this Court in Taiyab Khan and Others v.
State of Bihar (Now Jharkahnd) [(2005) 13 SCC 455] in arriving at the
conclusion that the result of the viscera examination would make no difference
to the fate of the case, as an offence under Section 304B IPC was involved.
13. Section 113A of the Indian Evidence
Act, 1872 will have no application inasmuch as in order to invoke
presumption arising thereunder, it must be established as an issue of fact that
the deceased had committed suicide.
14. A distinction must also be borne in mind between the ingredients of
offences under Section 306 IPC and 304B thereof.
15. There is no evidence to suggest, as was alleged by PW-1, that Bakulbala
had been killed.
16. In absence of any evidence by the medical expert that the death was
homicidal, suicidal or accidental in nature, the conclusion of the High Court
that she had committed suicide was not proved.
17. In any view of the matter, there is nothing to show that the appellants
herein had incurred joint liability. Section 113A of the Evidence Act in the
facts and circumstances of the case would not be attracted so far as husband of
the deceased is concerned, as there is nothing to show that he had any role to
play in regard to the alleged physical or mental torture of the deceased. The
evidence of PW-5 to the effect that he used to assault Bakulbala cannot be
believed, as no such statement has been made under Section 161 of the Code of
18. Similarly, statement made by PW-10 to the said effect cannot be
believed. The High Court furthermore failed to notice the letters wherein it
was stated : "Your son-in-law loves me and that is a big relief".
"Your son-in-law lovingly states that he would be relieved",
"There is no trouble from the side of your son-in-law" and Gauranga
used to stay at Burdwan on week days and used to return on week ends.
19. So far as Ananda Mohan Sen (Appellant No. 1 herein) is concerned, even
the High Court has observed that his role was diminutive. No specific instance
of any act of cruelty has been mentioned by any of the witnesses against him.
As a matter of fact he had all along been asking her to stay at Burdwan with
her husband, which contradicts any cruelty on his part.
20. There is no direct or circumstantial evidence in regard to any act of
cruelty or torture between 02.06.1993 and 03.02.1994 when she died i.e.
after the purported talk of settlement was made.
21. Mr. Avijit Bhattacharjee, learned counsel appearing on behalf of the
State, on the other hand, would refer to the judgment of the High Court, which
according to him, dealt with all the evidences both oral and documentary at
ANALYSIS OF THE EVIDENCE
22. The fact that death of Bakulbala took place within seven years of
marriage is not in dispute. The deceased was lovingly called as 'Mamoni'.
According to PW-1, she used to complain about her ill-treatment by her
husband, parents-in-law and brother-in-law. According to the said witness they
used to abuse and assault the deceased. He had deposed that his son Himadri had
gone to the house of Bakulbala on 15th Falgoon, 1399 i.e. 7-8 months prior to
her death. Both of them were driven out whereafter only he went to his
daughter's house for settlement. A settlement was arrived at whereafter she was
taken to her matrimonial home. Despite the same, the assault and abuse on her
23. We may not deal with the evidences of PWs 2 to 4. As noticed
hereinbefore, PWs 2 and 3 were declared hostile and PW-4 was tendered on
cross-examination. PW-5 was the mother of the deceased. She was also
categorical in her statement in regard to ill-treatment meted out to her
daughter. She categorically stated that she was assaulted by the parents-in-
law and brother-in-law of the deceased and she had been driven out together
with her son on 16th Falgoon. Even after settlement her daughter was severely
assaulted. On the fateful day, the accused persons assaulted and killed her by
pouring poison in her mouth and left the house under lock and key. PW-6, Smt.
Madhavi Halder, is the paternal aunt of the deceased. She found marks of
injuries on the dead body of Bakulbala. She expected the dispute would be
settled after she gave birth to a child. Jagat Kumar Das (PW-7) is an
independent person. Settlement preceded the dispute. The dispute arose because
of torture. He is a witness to the settlement. PW-8, Harddhan Halder, a
resident of Baidyapur village also supported the prosecution case. Smt.
Biuthika Paul, who examined herself as PW-9 was a close friend of Bakulbala.
This witness in no uncertain terms stated that the deceased used to complain
about the ill-treatment meted out to her in her in- laws house and it would
have been better if she had not been married and continued her studies. The
deceased had stated before her that she had been abused and assaulted even for
minor and insignificant mattes. She was made to do domestic works like a maid
servant and even she had been denied proper meal. According to this witness,
the brother-in-law of Bakulbala asked her sleep with him when her husband was
out the house; but on her reporting thereabout she was assaulted by her
24. PW-10 is the younger brother of Bakulbala. He was the witness to the
incident of 16th Falgoon, when he and Bakulbala were assaulted and driven out
from the house.
25. The learned Trial Judge in arriving at the conclusion had , inter alia,
taken note of the fact that despite the deceased suffering from the skin
disease, she had never been taken to the doctor, nor any paper was filed as to
whether any treatment was given. It may be that there are certain
contradictions and omissions but in a case of this nature the conclusion must
be drawn from the totality of the circumstances. Bakulbala admittedly died an
unnatural death. The prosecution evidences brought on records clearly suggest
that she had been subjected to cruelty both physical and mental.
Existence of discord between the parties in regard to torture at least at
one point of time is not in dispute. She had been driven out of her house. She
had to come back to her parents house again and again. Her husband did not even
make any enquiry about her, when she was staying with her parents. A settlement
had been arrived at wherfor intervention of the members of the panchayat had
been sought for. Only upon the said settlement, the deceased came back to her
matrimonial home. Unnatural death of the deceased, in our opinion, must be
considered from that point of view.
26. Submission of Mr. Ghosh that the dispute between mother-in-law and
daughter-in-law is an usual thing and other members of the family were not
involved, does not appear to be correct. She made allegations against all the
family members. There is absolutely no reason if allegations against all the
family members had not been made, why a settlement had to be arrived at.
Evidence of PW-9, a close friend of the deceased, in this regard is
significant. Naturally, a married girl would confide with a close friend or
mother. A mother, on the other hand, may not bring everything to the notice of
her husband on the belief that the things will improve.
27. Indian Penal Code was amended by Criminal Law Amendment Act 1983 with a
view to deal with menace of dowry deaths. Explanation appended to Section 498A
defines cruelty in three parts. Clause (a) of the said explanation itself is in
two parts. One is any wilful conduct which is of such a nature as is likely to
drive the woman to commit suicide and the second part is to cause grave injury
or danger to life, limb or health (whether mental or physical) of the woman. It
may be that death by itself may not lead to an inference that cruelty was meted
out to the deceased, but in this case there are specific allegations. The
witnesses proved the same.
Ex.3-C, whereupon reliance has been placed by Mr. Ghosh, although no
allegation had been made against her husband, the deceased categorically stated
the type of torture which was being meted out to her. In Ex. 3, however, she
categorically stated that even the garments which had been presented by her
parents were not liked by her husband and she had been abused and insulted by
her husband. In some of the letters, it appears that she expressed her vent
that she had thought of committing suicide but then consoled her mother that
she would not do so. The contents of those letters had not been denied or
disputed. Even in one of the letters Ex. A-1, she made allegations against her
in laws during her stay at matrimonial home.
Her mental condition during the stay at her matrimonial home can be well-
imagined. For establishing a charge of cruelty, it is not necessary that the
husband must always stay in the matrimonial home. Systematic torture of the
deceased is evident in this case. We do not find any reason to differ from the
findings of the learned Trial Judge or the High Court.
28. The question which now arises for consideration is as to whether a case
for conviction under Section 306 IP has been made out. It is no doubt true that
for arriving at such a conclusion, the prosecution must , inter alia, establish
that the deceased committed suicide and she had been subject to cruelty within
the meaning of Section 498A IPC. [See Harjit Singh v. State of Punjab [(2006) 1
29. It may also be true that for the aforementioned purpose a degree of
certainty has to be arrived at, as was held in Wazir Chand and Anr. etc. v.
State of Haryana etc. [(1989) 1 SCC 244].
30. The fact that the deceased had died an unnatural death is not in
dispute. It is nobody's case that her death was an accidental one. In the First
Information Report, it was categorically stated that the deceased had committed
suicide. In the medical report, the exact cause of death could not be stated,
as the viscera preserved by the autopsy surgeon was to be sent to the chemical
expert. We have, however, noticed hereinbefore that viscera contained a whitish
violate fluid with a smell like that of kerosene. She was found dead early
morning at the verandah of her matrimonial home. PW-11 was definitely of the
opinion that the death was due to the effect of poisoning, but he merely stated
that he would be able to hold conclusively as to the cause of the death by
poisoning only if he could find detection of poison in the viscera report. In
his report it was stated :
"There was vermilion marks on forehead and front middle of scalp hairs
whitish froth was coming out from nostril and facial stains at the (illegible)
31. His deposition if read as a whole would clearly go to show that he could
not give definite opinion only in regard to the nature of poison. The cause of
death by poisoning was, therefore, not in issue. A plastic bottle with while
cork with a label 'Sumidon' was also seized. The autopsy surgeon noticed the
smell of kerosene.
32. It is of some significance to note that even before the learned Trial
Judge, an argument was advanced by the learned counsel for the appellants that
it was a case of suicide, stating :
"Learned Advocate for the accused persons, during his argument, stated
that Bakulbala personally took the poison in her mouth and died and the onus of
proving this is upon the prosecution and while such death is caused by
consumption of poison, then two other points are to be considered whether that
death is homicidal or accidental in take or not"
In Taiyab Khan (supra), this Court opined :
"It is a case of unnatural death. The learned counsel for the appellant
argued that the viscera report would have shown as to whether the death
occurred on account of consumption of poison. This report was never received
and therefore, it cannot be said to be a case of death by poisoning. In our
view, the absence of viscera report does not make any difference to the fate of
the case. The fact remains that it is a case of unnatural death."
33. It may be, as was submitted by Mr. Ghosh, that therein the offence
alleged to have been committed was one under Section 304B IPC, but in a case of
this nature, the legal principle thereof can be applied. In that case on the
basis of the materials on records even a suggestion that the deceased had taken
poison of her own and committed suicide has been disbelieved.
34. In the instant case, everybody proceeded on the basis that it is a case
of suicide. If an accidental consumption of poison was required to be proved,
the appellants and accused persons would not have fled away from their house.
Had it been a case of accident, they would have at least made an attempt to
take her to the hospital. Had it been done, such an argument was possible to be
advanced. No doubt there exists a difference between the ingredients of Section
306 and 304B IPC, as has been held by this Court in Harjit Singh (supra), but
then it is not necessary for us in this case to go into that aspect of the
matter as it is not a case where the appellants have been charged under Section
304B IPC but only for commission of an offence under Section 306 IPC.
35. In P. Mani v. State of Tamil Nadu [(2006) 3 SCC 161] the accused were
charged under Section 302 IPC. It was in that situation, this Court opined that
the provision of Section 113A of the Evidence Act was not available. Therein,
it was noticed :
"11. The High Court furthermore commented upon the conduct of the
appellant in evading arrest from 4-10- 1998 to 21-10-1998. The investigating
officer did not say so. He did not place any material to show that the
appellant had been absconding during the said period. He furthermore did not
place any material on record that the appellant could not be arrested despite
attempts having been made therefor. Why despite the fact, the appellant who had
been shown to be an accused in the first information report recorded by himself
was not arrested is a matter which was required to be explained by the
investigating officer. He admittedly visited the place of occurrence and seized
certain material objects. The investigating officer did not say that he made
any attempt to arrest the appellant or for that matter he had been evading the
same. He also failed and/or neglected to make any statement or bring on record
any material to show as to what attempts had been made by him to arrest the
appellant. No evidence furthermore has been brought by the prosecution to show
as to since when the appellant made himself unavailable for arrest and/or was absconding."
The said decision was rendered on its own facts.
36. In the aforementioned situation, invocation of Section 113-A of the
Evidence Act, in our opinion was misconceived. Such is not the position here.
37. Involvement of all the accused persons to commit the offence must be
determined having regard to the entirety of the situation and the materials
brought on records. Section 113-A of the Evidence Act raises a presumption
against the accused, subject of course to the following conditions :
(a) That the husband or any member of his family had subjected the married
woman to cruelty within the meaning of Section 498A IPC.
(b) The presumption is not mandatory; it is only permissive according to the
facts and circumstances of a given case.
(c) A consideration of all the other circumstances of the case may
strengthen the presumption or may cause the Court to abstain from drawing the
38. A young lady committed suicide in the morning. Ordinarily, in a village,
all members of the family would get up early. Death took place on the verandah
of her house. Ordinarily suicide would be committed at a secluded place and not
in open place. It would not be committed before anybody and certainly not when
everybody in the house was present. In a case of this nature, Section 113-A of Indian Evidence
Act would be attracted. Appellants did not adduce any evidence. All the
inmates of the house were accused. All came within the purview of Section 113-A
of the Evidence Act. Onus shifted to them to show that the death was accidental
in nature. Those who were near the deceased at the relevant time should have
shown as to how the accident took place. It is difficult to believe that an
educated woman would take poison accidentally.
39. In Randhir Singh v. State of Punjab [(2004) 13 SCC 129], it was
"9. Great stress was laid on the victim's statement having not
expressed before her friends about any harassment. In a tradition and custom-bound
Indian society no conservative woman would disclose family discords before a
person, however close he or she may be. Merely because the deceased had not
told close friends about the demand of dowry or harassment that does not
positively prove the absence of demand of dowry. The said circumstance has to
be weighed along with the evidence regarding demand of dowry. If the evidence
regarding demand of dowry is established, is cogent and reliable merely because
the victim had not stated before some persons about the harassment or torture
that would be really of no consequence."
It was also observed:
"13. In State of W.B. v. Orilal Jaiswal 1 this Court has observed that
the courts should be extremely careful in assessing the facts and circumstances
of each case and the evidence adduced in the trial for the purpose of finding
whether the cruelty meted out to the victim had in fact induced her to end the
life by committing suicide. If it transpires to the court that a victim
committing suicide was hypersensitive to ordinary petulance, discord and
differences in domestic life quite common to the society to which the victim
belonged and such petulance, discord and differences were not expected to
induce a similarly circumstanced individual in a given society to commit
suicide, the conscience of the court should not be satisfied for basing a
finding that the accused charged of abetting the offence of suicide should be
40. Each case, however, is required to be determined on its own facts.
The case at hand indicates the participation of the accused immediately
before the commission of the crime. The prosecution having established the
ingredients of offences falling both under Sections 498A and 306 of the Indian
Penal Code, the burden shifted on the accused which they failed to discharge.
41. In the facts and circumstances obtaining in this case, we are of the
opinion that it is not a case where interference with the impugned judgment is
called for. The appeal is dismissed accordingly.