ALOK HALDAR Vs. STATE OF UTTARANCHAL

JUDGEMENT

(1.) THIS criminal appeal has been pre ferred by the appellant, against his con viction and sentence, passed by Addl. Sessions Judge/11 F. T. C. , Udham Singh Nagar, vide his judgment and order dated 3-5-2005, in S. T. No. 180 of 2003, State Versus Alok Haldar and others, whereby the accused Alok Haldar was convicted U/s 3061. PC. and was sentenced to 10 years R. I. and fine of Rs. 2000/- and in default of payment of fine to further undergo six months im prisonment. However, the accused/ap pellant Alok Haldar and two other co-accused Smt. Renu Haldar and Smt. Suchitra Haldar were acquitted of the charge U/s 304-B I. P. C.

(2.) BRIEF facts giving rise to this ap peal are that marriage of Smt. Seema and accused/ appellant Alok Haldar was performed on 13-5-2001. The inlaws of Smt. Seema used to treat her with cru elty for their unlawful demand of dowry. On 16-04-2003, Dev Prasad Vishwas, brother of Smt. Seema got information that his sister was murdered by her inlaws. On receiving information Dev Prasad Vishwas along with Jogesh Mandal, Moti Lal, Sunil Rai etc. went at the house of the accused and saw that his sister was dead. Thereafter he lodged written report, Ext. Ka. 1 at P. S. Sitarganj. On the basis of written report, chick F. I. R. , Ext. Ka. 20 was prepared at the Police Station and case was regis tered in the G. D. against the accused/ appellant and two others. The inquest on the dead body of deceased Smt. Seema was conducted by the police on 16-4-2003 and inquest report Ext. Ka. 14 was prepared. The dead body was sealed and sent for post mortem along with photo laas, Police Form No. 13, letter to C. M. O. for post mortem, sam ple seal and form No. 33, Exts. Ka. 15 to Ka. 19 respectively. The post mortem on the dead body of deceased was con ducted at S. S. Jeena, Hospital Haldwani on 1/-4-2003 at 12. 30 P. M. The I. O. also took into possession the piece of saree and stool which was al legedly used by the deceased for com mitting the suicide vide recovery memo Ext. Ka. 13. He also took into possession one register and one copy of the de ceased vide memo Ext. Ka. 10 and also took into possession the marriage card, bill of ornaments, furniture, T. V. , Diary and other articles vide memo Ext. Ka. 7. Recovered articles were also sent to Fo rensic Lab for examination. After com pleting the investigation the I. O. submit ted charge sheet, Ext. Ka. 12 against the accused persons. 4. On committal of the case to the court of Sessions, the Sessions Judge framed charge U/s 304-B I. P. C. against the accused persons. They pleaded not guilty and claimed to be tried. 5. The prosecution to prove its case examined P. W. I Dev Prasad, P. W. 2, Devasish Kumar Rai, P. W. 3, Ishan Vishwas, P. W. 4, Dr. K. D. Pandey, P. W. 5, Ranjit Singh Boa, P. W. 6, Samar Dev Nath and P. W. 7, Constable Birendra Singh. 6. P. W. 1, Dev Prasad is the com plainant of the case. He has deposed that the accused/appellant Alok Haldar and his family members were not happy with the dowry given by him in his sis ter's marriage and used to iiltreat his sis ter. He also alleged that he had given a motorcycle; Rs. 10,000/- cash and other items in the dowry. He also stated that prior to the accident he along with Devasish, and Mangu went to the inlaws house of his sister and tried to pacify the illegal demand of dowry of the accused and his family members. On 16-4-2003 he got information that his sister was murdered by her husband and inlaws. He went there the same day at 8. 30 P. M. and reported the matter to the police chauki Shakti Farm. He has proved the F. l. R. Ext. Ka. 1. This wit ness also proved the bills of the so called articles given by him to the accused in dowry, Ext. Ka. 3, Ka. 6 and Fard, Ext. Ka. 7 of the bills taken into possession by the I. O. 7. P. W. 2, Devasish and P. W. 3, Ishan Vishwas also supported the evi dence of P. W. 1, Dev Prasad on the point of dowry demand and illtreatment of the deceased by her husband and inlaws. 8. P. W. 4, Dr. K. D. Pandey has con ducted post-mortem on the dead body of deceased Smt. Seema on. 1/-4-2003 at 12. 30 P. M. in the S. S. Jeena Hospi tal, Haldwani. The doctor found that rigor mortis had passed off from whole of the body. The doctor found follow ing ante mortem injuries on the person of Smt. Seema deceased : 1- Abraded contusion 2cm x 1cm on the right side of face, 2cm below right eye. 2- Abraded contusion 2cm x 1. 2cm on the left side of face, 2. 5cm below left eye. 3- Ligature mark : (i) Triangular ligature mark on the anterior part of the neck over the thyroid cartilage and adjoining parts, more in the right side, its joint is down wards, size 11cm x 3cm over exploration of subcutaneous, haemorrhage present, thy roid cartilage is broken hyoid bone is intact. Trachea and larynx congested and filled with froth. (ii) 2nd ligature mark 2cm x 0. 75cm present obliquely en circling the neck, just above thyroid cartilage on the up per part of 1st ligature mark extending upto the posterior and upper part of the right side of the neck and on the left side to the tip of mastoid process, exploration of sub cutaneous haemorrhage present. In the opinion of the Medical Of ficer the cause of Death was asphyxia due to strangulation and the death was caused IV a days before. The witness proved the post mortem examination report, Ext. Ka. 8. 9. P. W. 5, Ranjit Singh Bora, Circle Officer has investigated the case and de posed about the steps taken by him dur ing the investigation and also proved the prosecution papers prepared by him. 10. P. W. 6, Samar Dev Nath has de posed that on the day of the occurrence on receiving information about the death of Smt. Seema he also reached at the place of the occurrence and saw that the police break-opened the door and found the dead body of Smt. Seema hanging with piece of saree inside the room. The police took into possession the piece of saree and stool and pre pared Fard, Ext. Ka. 13. He is also wit ness of inquest. 11. P. W. 7, Constable Birendra Singh is a formal witness. He has drawn chick EI. R. , Ext. Ka. 20 on the basis of written report and made entries in the G. D. regarding registration of case. 12. The accused persons in their statements U/s 313 Cr. P. C. denied the prosecution case and stated that they have been falsely implicated in the case. They did not adduce any evidence in their defence. 13. The learned Sessions on evalu ation of prosecution evidence and hav ing heard learned counsel for the parties, came to the conclusion that the pros ecution has not been able to establish the case U/ 304-B I. P. C. against the ac cused persons and accordingly acquitted all the accused from this charge levelled against them. However, the learned Ses sions Judge found the accused/appellant Alok Haldar guilty of offence U/s 306 I. P. C. holding that he treated the de ceased Smt. Seema with cruelty; he never cohabited with her; after marriage the accused/ appellant neglected the de ceased, therefore, due to this wrongful act of the appellant, his wife Smt. Seema was compelled to commit sui cide and accordingly sentenced him to 10 years R. I. and fine of Rs. 2000/- and in default of payment of fine to further undergo six months imprisonment. 14. Feeling aggrieved, the accused/ appellant has come up in appeal before this court. 15. 1 have heard learned counsel for the appellant, learned A. G. A. and pe rused the record. 16. Learned counsel for the appel lant has argued that the only point in volved in this appeal is as to whether a case under Section 306 I. P. C. against the appellant is made out or not. Ac cording to the submission advanced by the learned counsel for the appellant, the ingredients of Section 306 I. P. C. are not attracted in this case and the appellant in any manner cannot be held guilty of committing the offence under Section 306 I. P. C. 17. Learned counsel for the appel lant has also submitted that the deceased committed suicide on her own under some depression or frustration but the suicide was not the direct result of the quarrel and the evidence on record no where indicate that the appellant had in fact put the deceased to any harassment which may give rise to the presumption that the suicide had been abetted by the appellant. 18. Learned counsel for the State on the other hand has argued that the appellant had subjected the deceased to constant cruelty although there is no evi dence of demand of dowry as has been held by the trial court but the appellant did not fulfill his matrimonial obligation with the deceased and this circumstance compelled the deceased to commit sui cide. The manner in which the cruelty has been committed by the appellant against the deceased automatically give rise to the presumption that the suicide had been abetted by the appellant who is the husband of the deceased. 19. Learned counsel for the appel lant has submitted that in view of the provision of Section 107 of I. PC. the word 'instigate' can be an incitement or urging to do some drastic or inadvisable action or to stimulate or incite. There fore, the presence of mens rea is the nec essary concomitant for instigation. He has submitted that the evidence and the circumstances of the case nowhere in dicate that the deceased was subjected to any harassment by the husband. He has also submitted that merely the women committed suicide within seven years of her marriage and that she was subjected to cruelty by the husband does not automatically gives rise to the pre sumption that suicide has been abetted by the husband. 20. Learned counsel for the appel lant has cited before me various Hon'ble Apex Court decisions which are as fol lows : 1. Sanju Vs State of M. P. reported in (2002) 5 Supreme Court Cases 371 2. Netai Dutta Vs State of W. B. re ported in (2005) 2 Supreme Court Cases 659 3. Hans Raj Vs State of Haryana re ported in (2004) 12 Supreme Court Cases 257 4. State of Gujarat Vs Sunik Kumar KJant reported in (1996) 2 GLR 797 5. Vedprakash Vs State of M. P. re ported in 1995 Crl. L. J. 893 (M. P.) 6. Manish Kumar Sharma Vs State of Rajasthan reported in 1995 Crl. L. J. 3066 (Raj.) 7. Hira Lal Jain Vs State reported in 2001 Crl. L. J. 1212 (Del) 8. Mahendra Singh Vs State of M. P. reported in 1995 Supp (3) Su preme Court Cases 731 21. I have carefully gone through the judgment cited by the learned coun sel for the appellant and I am of the view that the judgment cited by the learned counsel for the appellant are not applicable to the facts and circum stances of the present case. In the in stant case, the evidence on record shows that the deceased- Seema used to main tain a diary and that diary has been produced by the prosecution before the trial court. This diary is in the handwrit ing of the deceased - Seema as is evi dent from the report of the handwriting expert. This diary at most of the places indicate that the appellant had not been fulfilling his matrimonial obligation with the deceased since from first day of the marriage till her death. This diary also indicates that the deceased - Seema was not liked by the appellant on account of her dark complexion. The deceased -Seema has also mentioned at most of the places in her diary that the appel lant was leading an adulterous life. The most important aspect in the case is that as per the personal diary of the deceased - Seema it is quite clear that the appel lant did not cohabit with the deceased from the very first day bf the marriage till her death thereby compelling her to live a life of celibacy while staying with her husband who for the best reason known to him did not cohabit with the deceased even once after the marriage. 22. Certainly these are the circum stances, which compelled the deceased to commit suicide. It is not a case where the deceased committed suicide due to. . . her hypersensitive nature. The evidence available on record clearly established that suicide by1 the deceased was a re sult of cruelty, humiliation, depriving the deceased from cohabitation and compel ling her to live a life of celibacy. The evi dence further establishes that the de ceased was also compelled to commit suicide on account of the fact that the appellant was living an adulterous life. The Hon'ble three Judge Bench of Apex Court in a case A. Jayachandra Vs Aneel Kaur reported in (2005) 2 SCC 22, has held that "the cruelty is necessarily a matter of inference to be drawn from the facts and circumstances of the case and a person who is enjoying a normal health being deprived of normal cohabi tation by the spouse and thus indicat ing anguish and frustration could be said to have been subjected to cruelty. " 23. The Hon'ble Supreme Court in the aforesaid judgment has also observed that "the cruelty need not be physical and if from the conduct of the spouse same is established and/or an inference can be legitimately drawn that the treat ment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. " 24. The material available on record shows that the appellant was married with the deceased on 13-05- 2001 and Seema on account of the cruelty com mitted by the appellant died on 16-04-2003. During this period of approxi mately 2 years the appellant compelled the deceased to live a life of celibacy. The husband living with his wife and de priving her from cohabitation thereby putting her to constant anguish and frus tration had certainly been putting the deceased to perpetual torture which is not only mental but also physical injury and even for the medical point of viewis detrimental to the healthy woman. 25. The abetment in committing sui cide involves a mental process of insti gating a person or intentionally adding that person in doing of a thing. In the instant case, the appellant has rightly been held guilty by the trial court for committing offence under Section 306 I. P. C. On the basis of the evidence which clearly establishes that the appel lant failed to provide conjugal relation ship with the deceased and on the ba sis of this circumstances, it can be safely inferred that the appellant committed cruelty against the deceased by putting her to perpetual torture and that torture continued unabated and the suicide was on account of victim not being able to any further bear torture or harassment. The appellant has thus rightly been con victed for the offence under Section 306 I. P. C. 26. I do not find any infirmity in analysis of evidence by the trial court, on the basis of the assessment of evi dence I come to the conclusion that the appellant has been rightly convicted by the trial court for the offence under Sec tion 306 I. P. C. 27. The impugned judgment and or der dated 03-05-2005 passed by the trial court needs no interference and deserves to be confirmed. 28. Accordingly, the appeal fails and is dismissed. The conviction and sentenced imposed against the appellant vide judgment and order dated 03-05-2005 passed by the trial court is con firmed. .