RAKHAL DEBNATH Vs STATE OF WEST BENGL
Bench: SWATANTER KUMAR,FAKKIR MOHAMED IBRAHIM KALIFULLA
Case number: Crl.A. No.-000201-000201 / 2010
Diary number: 9542 / 2009
Advocates: RAVI KUMAR TOMAR Vs
AVIJIT BHATTACHARJEE
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Reportable
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 201 OF 2010
Rakhal Debnath ….Appellant
VERSUS
State of West Bengal .…Respondent
J U D G M E N T
Fakkir Mohamed Ibrahim Kalifulla, J.
1. The first accused is the appellant. The appellant was
proceeded against for offences under Sections 306 and
498A of IPC. The Trial Court acquitted the appellant and
by the impugned order, the High Court while reversing
the judgment of the Trial Court found the appellant guilty
on both the charges and imposed the sentence of
imprisonment of 10 years and also a fine of Rs.10,000/-,
in default to suffer further one year rigorous
imprisonment for the offence under Section 306 of IPC.
He was also sentenced to suffer rigorous imprisonment
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for three years apart from fine of Rs.10,000/-, in default
to suffer further rigorous imprisonment for one year for
the offence under Section 498A of IPC. Both the
sentences were directed to run consecutively. The High
Court thus partly allowed the appeal of the State. The
acquittal of the second accused, however, was confirmed
by the High Court.
2. The case of the prosecution was that the appellant got
married to the deceased Krishna as per Hindu rites and
customs on 22.04.1987. The unfortunate incident of the
death of the deceased Krishna occurred on 26.05.1987
when she was admitted to SSKM Hospital with severe
burn injuries at 08.35 a.m. and she was declared dead at
08.37 a.m. In the hospital register it was noted by the
doctor-P.W.19 that as per the statement of the appellant
at 07.35 a.m. in the morning while the deceased was
preparing tea and bread in the kitchen of the house she
got burnt of the burning stove. However, according to the
prosecution shortly after the marriage the appellant
demanded a sum of Rs.40,000/- from the father of the
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deceased Krishna for the purpose of his business which
was declined, that upset by the declining of his demand
by the father of the deceased the appellant stated to have
retorted then that he knew how to collect the money from
his father-in-law through his wife, and that thereafter on
22.05.1987, the appellant pledged the jewels of deceased
Krishna for a sum of Rs.11,000/-. The deceased Krishna
was also stated to have been nurturing a grievance
against the appellant about his illicit contacts with the
second accused Anima who was none other than the
niece of the appellant. The prosecution filed its final
report before the Trial Court and, thereafter, the charges
under Sections 306 and 498A of IPC were leveled against
the appellant.
3. Learned counsel appearing for the appellant while
assailing the judgment of the High Court submitted that
the postmortem doctor-P.W.15 stated that he was not
able to come to any definite opinion as to whether the
death was homicidal, suicidal or accidental. Therefore,
the main ingredient for the alleged offences against the
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appellant was not established by the prosecution.
Learned counsel then contended that the whole case was
based on circumstantial evidence and that there was no
circumstance to link the appellant with the death of the
deceased. Elaborating his submission learned counsel
contended that none of the ingredients for the offences
under Section 306 as well as 498A of IPC was
demonstrably placed before the court below by the
prosecution and, therefore, the conviction and sentence
cannot be sustained. He further contended that FIR was
based on the complaint of P.W.3 which was not written by
him, that the version of P.W.3, who was the father of the
deceased, did not in any way disclose any factor or even
remotely suggest that there was any abetment on the part
of the appellant for the deceased to commit suicide. The
learned counsel therefore contended that the acquittal
made by the Trial Court was a well considered judgment
and the interference with the same by the High Court was
not justified. The submission of learned counsel for the
appellant was that there was no evidence for abetment
nor was there any evidence to show that the appellant
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caused any cruelty to the deceased in order to convict the
appellant for the offences falling under Sections 306 and
498A of IPC.
4. As against above submissions the learned counsel
appearing for the State contended that the death of the
deceased occurred hardly within 35 days after her
marriage with the appellant, that the ocular evidences of
P.Ws.3, 9 and 11 amply disclosed that within few days
after the marriage the appellant made a demand for a
sum of Rs.40,000/-, that the non-payment of the said
money to the appellant and the subsequent pledging of
the jewels of the deceased which was established by
Exhibit 7 as well as evidence of P.W.17 showed that the
demand of dowry was amply established. The learned
counsel submitted that the evidence of P.Ws.3, 9 and 11
disclosed that the deceased duly conveyed to both the
witnesses the conduct of the appellant in having raised a
demand for money apart from his illicit behaviour with
his niece which ultimately resulted in the deceased taking
the extreme decision of pouring kerosene and setting fire
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to herself. The learned counsel pointed out that the
recoveries made at the place of occurrence such as
kerosene cane, piece of cloth soaked in kerosene, the quilt
and pillows and the wearing apparels of the deceased
which had the smell of kerosene and the burn injuries
suffered by the deceased amply proved that the deceased
committed suicide and that such an extreme decision to
commit suicide was pursuant to the constant instigation
of the appellant to get money from the parental home of
the deceased and also his illicit relationship with second
accused. The learned counsel relied upon the decisions of
this Court reported as Ramesh Kumar v. State of
Chhattisgarh – (2001) 9 SCC 618, K. Prema S. Rao and
another v. Yadla Srinivasa Rao and others – (2003) 1
SCC 217 and Devi Lal v. State of Rajasthan - (2007) 14
SCC 176.
5. Having heard learned counsel for the appellant as well as
the learned counsel for the State and having perused the
judgment impugned in this appeal and other related
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papers, at the very outset, it will have to be stated that
there is no merit in this appeal.
6. The deceased died due to extensive burn injuries on her
body which was fully established by the postmortem
report as well as by the evidence of doctor P.W.15 who
conducted the postmortem. The same is also not disputed
by the appellant. In fact, P.W.19 the doctor who examined
the deceased immediately after she was brought to the
hospital reported that according to the appellant the
deceased suffered the burn injuries from the burning
stove when she was preparing tea and bread. However,
in the 313 questioning the appellant made it clear that he
did not make any such statement. If the said statement is
to be accepted then what remains is the postmortem
report, the evidence of P.W.15 and the recoveries made at
the place of occurrence, namely, kitchen (viz) the 20 litre
cane in which about a litre of kerosene was found, the
quilt and pillows and a piece of cloth soaked in kerosene
and the clothes worn by the deceased which also smelled
kerosene. The question of deceased having suffered burn
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injuries from the burning stove is ruled out by the own
version of the appellant.
7. Considering the extent of burn injuries stated by the
doctor in the postmortem report (viz) the first degree burn
injuries from top of the head up to the tip of the leg
makes it clear that it could have been caused only by
pouring kerosene from the cane over the head and by
burning the person after that. The smell of kerosene oil in
the clothes and other materials recovered at the scene of
occurrence also fully support such a situation which
could have only been inflicted by the deceased herself
and, therefore, the conclusion of the High Court in having
held that the deceased committed suicide cannot be
found fault with.
8. If once the said conclusion is irresistible, what remains to
be examined is what was the reason for the deceased to
take that extreme decision to burn herself. For that
purpose, when we examine the ocular evidence placed
before the court below, we find the consistent statements
of P.Ws.3, 9 and 11 which disclose that the complaint
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made by the deceased about the conduct of the appellant
that he made a demand for money from her father apart
from his illicit relationship with the second accused
merits acceptance. P.W.3 stated that after some days of
the marriage the appellant approached him and his son
for a sum of Rs.40,000/-, that when P.W.3 expressed his
inability to make the payment the appellant left the place
in a huff by stating that he knows how to get the money
from him through his own daughter. P.W.3 also stated
that the deceased herself informed him about the torture
meted out to her by the appellant along with second
accused for money when P.W.3 declined to pay any
money to the appellant. P.W.3 further stated that the
deceased also informed him about the illicit relationship
of appellant with the second accused. The pledging of
jewels of the deceased with P.W.17 was also proved by
producing Exhibit 3 by which P.W.3 repaid a sum of
Rs.11,000/- to P.W.17 to get back the jewels which were
seized by the police along with ornaments. P.W.17 in his
evidence also confirmed that the appellant pledged the
jewels with him. P.W.3 also indentified the jewels which
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he gifted to his daughter at the time of the marriage
which were recovered from P.W.17 and marked as Exhibit
1 (collectively).
9. The factum of the living of second accused in the very
same house of the appellant was not in dispute and the
same was also deposed by P.W.3. He further stated that
though his daughter complained to him about the
monitory demand as well as illicit relationship of the
appellant with the second accused he did not inform the
same to others except his close relatives fearing any
damage that may be caused to the matrimonial life of his
daughter which conduct of P.W.3 as a father of the
deceased was quite natural.
10. P.W.5 who is a relative of the deceased also stated that
the deceased informed him once about the illicit intimacy
of the appellant with second accused. P.W.10 who is
stated to be the cousin of the deceased deposed that
when she visited his house once after marriage she
informed him that she did not like the environment of her
matrimonial home and that the appellant and second
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accused used to talk in code language. P.W.11 who is the
neighbour of P.W.3, in his evidence also deposed that
when the deceased visited her parental home on the
occasion of Dwira Gaman Ceremony she informed him
that she did not like the relationship of the appellant with
the second accused and that appellant was demanding
money from her father. P.W.11 further stated that
deceased also requested him to tell her father not to give
any money to appellant. P.W.11 also stated that
according to the deceased she was not happy with the
marriage. To the same effect was the version of P.W.12.
11. The High Court while examining the charge of abetment
of the suicide committed by the deceased as well as
cruelty meted out to her falling under Sections 306 and
498A of IPC made a detailed analysis of the above
evidence and held that the charges were proved. Though
the learned counsel for the appellant attempted to point
out that there was no proof to show that the appellant
pledged the jewels of the deceased, we are not in a
position to appreciate the said contention for more than
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one reason. In the first place P.W.3 the father of the
deceased identified the jewels which were recovered from
P.W.17. P.W.17 himself confirmed that those jewels were
pledged by the appellant with him. The receipts Exhibit 3
and 3A disclosed that the said jewels were pledged by the
appellant for a sum of Rs.11,000/-. If those jewels really
did not belong to the deceased the same could have been
established only by the appellant by producing proper
evidence before the Court. Except the mere denial in the
313 statement, the appellant failed to show that those
jewels which were pledged by him did not belong to the
deceased.
12. As rightly held by the High Court the father of the
deceased cannot be expected to inform everyone living
around him about the unpleasant factum of the
daughter’s embarrassing living condition in her
matrimonial home and, therefore, mere non-disclosure of
those facts to others cannot be a ground to disbelieve the
version of P.W.3. We also do not find any inconsistency in
the evidence of P.W.3 and other witnesses who had the
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advantage of hearing from the mouth of the deceased
about the conduct of the appellant relating to his
demand, as well as, his illicit intimacy with the second
accused. Nothing was suggested to any of the witnesses
on behalf of the appellant to state that they were deposing
against him with any other ulterior motive. The fact
remains that the deceased committed suicide within 35
days from the date of marriage, coupled with the
untrammeled evidence before the court below about the
cruelty meted out to the deceased, fully established the
guilt of the appellant of abetment to the deceased to
commit suicide as well as the cruelty under Section 498A
of IPC.
13. In this context the reliance placed upon the decision of
this Court by the counsel for the State in Ramesh Kumar
(supra) can be usefully applied. In paragraph 12 of the
said decision this Court, while explaining the application
of Sections 107, 113A in regard to an offence falling
under Section 306 IPC has held as under:
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“12. This provision was introduced by the Criminal Law (Second) Amendment Act, 1983 with effect from 26-12-1983 to meet a social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide by the husband or in-laws and incriminating evidence was usually available within the four corners of the matrimonial home and hence was not available to anyone outside the occupants of the house. However, still it cannot be lost sight of that the presumption is intended to operate against the accused in the field of criminal law. Before the presumption may be raised, the foundation thereof must exist. A bare reading of Section 113-A shows that to attract applicability of Section 113-A, it must be shown that (i) the woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the abovesaid circumstances, the court may presume that such suicide had been abetted by her husband or by such relatives of her husband. Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory; it is only permissive as the employment of expression “may presume” suggests. Secondly, the existence and availability of the abovesaid three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the court shall have to have regard to “all the other circumstances of the case”. A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the court to abstain from drawing the presumption. The expression — “the other circumstances of the case” used in Section 113-A suggests the need to reach a cause-and-effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least, the presumption is not an irrebuttable
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one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase “may presume” used in Section 113-A is defined in Section 4 of the Evidence Act, which says — “Whenever it is provided by this Act that the court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.”
14. When we apply the said principle to the facts of the case,
we find that the relevant criteria for application of Section
113A is duly attracted to the facts of this case. The
deceased committed suicide within 35 days from the date
of her marriage and the allegation of cruelty was also fully
established. The evidence thus disclosed that the conduct
of the appellant vis-à-vis the deceased coupled with the
consequential demand of money from P.W.3 the father of
the deceased and also the pledging of the jewels of the
deceased fully established the case of the prosecution
that the deceased was instigated by the appellant to take
the extreme decision of committing suicide by pouring
kerosene on herself and set herself on fire and thereby
the charge of abetment under Section 306 and as well as
Section 498A stood proved.
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15. In this respect the subsequent decision reported as
Thanu Ram v. State of Madhya Pradesh (Now
Chhattisgarh) – (2010) 10 SCC 353 can also be usefully
referred to. In paragraphs 26 and 27 this Court has
explained the legal position as under:
“26. In the Explanation to Section 113-A it has also been indicated that for the purpose of the said section, the expression “cruelty” would have the same meaning as in Section 498-A IPC. Accordingly, if the degree of cruelty is such as to warrant a conviction under Section 498-A IPC, the same may be sufficient for a presumption to be drawn under Section 113-A of the Evidence Act in harmony with the provisions of Section 107 IPC.
27. All the decisions on the point cited by Dr. Pandey, deal with the differences in relation to the provisions of Section 498-A and Section 306 IPC, except in Sushil Kumar Sharma case, where the provisions of Section 498-A IPC had been considered in the context of Section 304-B IPC. In that context, it was sought to be explained that the big difference between Sections 306 and 498-A IPC is that of intention. The provisions of Section 113-A of the Evidence Act or its impact on an offence under Section 498-A IPC or Section 306 IPC vis-à-vis Section 107 IPC was not considered in any of these decisions.”
16. In the light of the above conclusion of ours, we do not find
any merit in this appeal and the same is dismissed.
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…..……….…………………………...J.
[Swatanter Kumar]
…………….………………………………J. [Fakkir Mohamed Ibrahim
Kalifulla]
New Delhi; September 04, 2012
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