Back
2010 Supreme(Cal) 1469
High Court of Judicature at Calcutta
ASHIM KUMAR BANERJEE & RAGHUNATH RAY
Smt. Shibani Barman & Another
Versus
The State of West Bengal
C.R.A. No.45 of 1997
Decided On : 22-12-2010
For the Appellant :Mr. Sanat Chaudhury, Advocate.
For the State :Mr. Ashimesh Goswami, Ms. Minoti Gomes, Advocates.
In the absence of conclusive evidence establishing a clear nexus between the alleged torture and the victim's decision to commit suicide, the presumption under Section 113-A of the Evidence Act cannot be invoked, and the accused are entitled to the benefit of doubt.
Headnote:
TUTUL BARMAN - SECTION 498A, 306 IPC, SECTION 113A OF THE EVIDENCE ACT - Dowry Death - Dying Declaration - Presumption - Interpretation of Sections 498-A and 306 of the Indian Penal Code and Section 113-A of the Evidence Act - Torture and Cruelty - Abetment - Benefit of Doubt - Acquittal
Fact of the Case:
Tutul, a young bride, faced physical and mental torture from her in-laws, leading to her death by suicide. The prosecution relied on a dying declaration and Section 113-A of the Indian Evidence Act to establish dowry death and abetment.
Finding of the Court:
The court found that the evidence of torture was insufficient to establish a clear nexus between the alleged torture and Tutul's decision to commit suicide. The dying declaration did not directly implicate the accused in instigating Tutul to end her life. The court also considered the peculiar conduct of Tutul's mother, who did not support her complaint during the trial.
Issues: 1. Whether the evidence established torture and cruelty within the meaning of Section 498-A and Section 113-A of the Indian Evidence Act. 2. Whether the dying declaration was admissible and reliable. 3. Whether the accused instigated or abetted Tutul's suicide.
Ratio Decidendi: 1. The court held that occasional quarrels and altercations, in the absence of dowry, did not amount to torture and cruelty under Section 498-A or Section 113-A of the Evidence Act. 2. The dying declaration, though not certified by the doctor, was considered but found to be insufficient to establish a direct nexus between the alleged torture and Tutul's decision to commit suicide. 3. The court found no conclusive evidence to establish that the accused were responsible for aiding and abetting Tutul's suicide.
Final Decision: The court allowed the appeal, set aside the conviction and sentence imposed by the trial court, and acquitted the accused of the charges under Section 498-A read with Section 306 of the Indian Penal Code.
ASHIM KUMAR BANERJEE.J:
1. BACK DROP
Gajen Barman had love affair with Tutul. They both belonged to village Falakata Hospital Para, Police Station Falakata in the district of Jalpaiguri. The parents of Tutul were agreeable to the marriage. Initially, Gajen’s family had objection. Ultimately, the marriage was fixed and held on 16th Shraban, 1393 B.S. Soon after marriage, the in-laws particularly the mother-in-law and brother-in-law (Bhasur) and his wife (Ja) inflicted torture upon Tutul. Tutul was subjected to physical torture. Gajen started living in a separated room in the same house having a separate mess. Despite being separated from the family, the assault continued. Tutul used to report to her parents. The parents informed the neighbours and requested Gajen to take appropriate action.
2. INCIDENT
On February 22, 1989 at about 3:45 p.m. Malina, the mother of Tutul saw some people taking Tutul to the Hospital. Tutul sustained burn injury. She was kept in a balcony of the Female Ward of Falakata Hospital. She remained conscious. She told her mother Malina that at about 3.00/3.30 p.m. her mother-in-law, brother-in-law and his wife had assaulted her bitterly and driven her from the house. Tutul could not bear the torture and burnt herself. Malina made a complaint to the Police. On the same day Tutul died. The Police arrested all the three accused and charged them for the offence committed under Section 498-A read with Section 306 of the Indian Penal Code. All the accused pleaded innocence and opted to be tried.
2. EVIDENCE :-
PW-1 (Joy Deb Roy) :-
The witness was a tenant in the house where the accused family was residing. Joy Deb stated that Tutul had died out of burn injury. Occasionally, there was altercation and quarrel between Tutul on the one side and the accused on the other side. He witnessed the seizure. In cross-examination, he stated that he had been driven out from his parental home and taken shelter for seven days in the said house. He denied the allegation of having any dispute between him and the accused. He also denied that the dispute had been in relation to vacating of the room for which the Panchayat President had intervened.
PW-2 (Smt. Manju Roy):-
The witness was the wife of Joy Deb. She corroborated her husband on the issue of altercation and quarrel Tutul had with the accused. Tutul cried for help to save her after being burnt. She also got burn injury while trying to save Tutul. Shibani also poured water on Tutul. Her husband also tried to save them. Her husband accompanied the injured to the hospital.
PW-3 (Sri Upendra Barman):-
The witness was rickshaw puller. The Police used his rickshaw to come to the spot.
PW-4 (Sri Madhu Sudan Deb):-
The witness was tendered for examination.
PW-5 (Smt. Malina Dey):-
The witness was the unfortunate mother of the victim. She did not corroborate her complaint. Naresh Gope wrote the complaint. Malina signed the same. In cross-examination, she disclosed that after the unfortunate incident Tripti, the younger sister of Tutul got married to Gajen. Malina stated that her daughter had not reported to her about any torture or ill treatment done by her in-laws. At this stage the witness was declared hostile. She denied the suggestion that she “falsely suppressed” the truth in order to save the accused. In cross-examination by the defence, the witness stated that Manju being PW-2 had gone to her house in order to bring her grand daughter. There was been dispute with regard to the vacating of the room by Joy Deb as Gajen requested Joy Deb to vacate the room.
PW-6 (Gajen Barman) :-
The witness was driver by profession. He had intimacy with Tutul prior to marriage. After marriage, he kept Tutul in his residence as he had to go out side in connection with his work. Occasionally, he used to visit his house at Muktipara and stayed there. During his visit, Tutul never reported anything untoward relating to the behaviour of the family members with her. He also stayed at
