ANANDA MOHAN SEN AND ANR. v. STATE OF WEST BENGAL

Citation: [2007] 6 S.C.R. 1088

Court: Supreme Court of India

Bench: S.B. SINHA, MARKANDEY KATJU

Case summary

ANANDA MOHAN SEN AND ANR. v. STATE OF WEST BENGAL.pdf

Judgment text

- ANANDA MOHAN SEN AND ANR. v. STATE OF WEST BENGAL MAY 16, 2007 (S. B. SINHA AND MARKANDEY KATJU, JJ. ] Penal Code, /860-ss. 498A and 306-Unnatural death of married >lady at her matrimonial home-Immediately after the occurrence, accused- -husband and father-in-law fled away---Conviction ofhusband and father-inlaw by Courts belov. ~Justification of-Held, justified-Specific allegation that deceased was subjected to cruelty-Systematic torture evident- Presumption against accused under s. I I3A ofthe Evidence Act-Prosecution established ingredients of offences falling both under ss. 498A and 306- Burden shifted on the accused which they failed to discharge-Evidence Act, 1872-s. I /3A. The daughter-in-law ofAppellant No. l was found dead at her matrimonial home. Appell:rnt No. 2 is the husband of deceased. Immediately after the 'T ~ occurrence, all the inmates of the house including the accused-Appellants fled away from the house.

A First Information Report was lodged on the very day of incident alleging that the deceased committed suicide being unable to bear physical and mental torture upon her by the accused-Appellants. Trial Court convicted the Appellants under ss. 498A and 306 IPC. High Court upheld the conviction. Hence the present appeal. Dismissing the appeal, the Court HELD: 1. 1. It may be that there are certain contradictions and omissions r but in a case of this nature the conclusion must be drawn from the totality of the circumstances. Deceased 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 ANANDA MOHAN SEN v. STATE OF WEST BENGAL I089 wherefor intervention ofthe members of the panchayat had been sought for. Only upon the said settlement, the deceased came back to her matrimonial home. Unnatural death ofthe deceased must be considered from that point of view. [Para 25) (1097-F, G; 1098-AJ 1. 2. The submission that the dispute was between deceased and her mother-in-law which is an usual thing and other members of the family were not involved, does not appear to be correct. Deceased 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. (Para 261 (1098-A, BJ 2. Explanation appended to Section 4'18A defines cruelty in three parts. Clause (a) of the said Explanation itself is in two parts.

One is any wilful conduct which is ofsuch 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 the Appellants, although no allegation had been made against her husband, the deceased categorically stated the type oftorture 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 p ... , 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. (Para 27) (1098-C-G) 3. It is nobody's case that the 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. However, the viscera contained a whitish violate fluid with smell like that of kerosene.

PW-11, the autopsy surgeon, 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 repo,rt. 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. If an accidental consumption of poison was required to be proved, the accused persons would not have fled away from their house. Had it been a case ofaccident, they would have at least made an attempt to take her to the hospital. [Paras 30, 31and34( (1099-B-E; 1100-DI Taiyab Khan and Ors. v. State of Bihar (Now Jharkhand), (2005) 13 SCC 455; Harjit Singh v. State ofPunjab, (20061 I SCC 463 and Wazir Chand and Anr. etc. v. State ofHaryana etc. , [1989) 1 SCC 244, referred to. 4. 1.

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 ofSection 498A IPC; (b) The presumption is not mandatory; it is only permissive according to the facts and circumstances of given case and (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 presumption. [Para 371 [1101-D, E, F) 4. 2. Death took place on the verandah of the matrimonial house of deceased. 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 ofthe 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. (Para 38) (1101-F, G, H; 1102-AJ P. Mani v. State ofTamil Nadu, [2006) 3 SCC 161, distinguished. 5. 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 IPC, the burden shifted on the accused which they failed to discharge. (Para 40) (1102-F] Randhir Singh v. State ofPunjab, (2004) 13 SCC 129, referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 743 qf 2007. From the Final Judgment and Order dated l0. 04. 2006 of the High Court . -- 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) ofthe 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 sec<>nd 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 ofthe learned Trial Judge or the High Court. # ... 28.

The question which now arises for consideration is as to whether case for conviction under Section 306 IP has been made out. It is no doubt ANANDA MOHAN SEN v. STATE OF WEST BENGAL [S. B. SINHA, J. ] I099 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 ofPunjab, [2006] l SCC 463. 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 ofHaryana etc. , [1989] I SCC 244. 30. The fact that the deceased had died an unnatural death is not in ·-- - In Taiyab Khan (supra), this Court opined : ".... It is a case ofunnatural 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 3048 ! PC, 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 3048 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 3048 ! PC but only for commission of an offence under Section 306 IPC. 35. In P. Mani v. State o/Tamil Nadu, [2006] 3 SCC 161 the accused were y charged under Section 302 IPC. It was in that situation, this Court opined that the provision ofSection l13A ofthe Evidence Act was not available. Therein, it was noticed : "11. The High Court furthermore commented upon the conduct ofthe 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 himselr' 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 presumption. y 38. A young lady committed suicide in the morning. Ordinarily, in village, all members ofthe 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 observed: "9. Great stress was laid on the victim's statement having not expressed before her friends about any harassment.

In a tradition and custombound 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 toId 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. Ifthe 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. Ori/al Jaiswal I 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 commor. 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 found guilty. " 40. Each case, however, is required to be determined on its own facts. y 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. B. B. B. Appeal dismissed.