PETITIONER: STATE OF W.B. Vs. RESPONDENT: ORILAL JAISWAL DATE OF JUDGMENT23/09/1993 BENCH: RAY, G.N. (J) BENCH: RAY, G.N. (J) REDDY, K. JAYACHANDRA (J) CITATION: 1994 AIR 1418 1994 SCC (1) 73 JT 1993 (6) 69 1993 SCALE (3)845 ACT: HEADNOTE: JUDGMENT:
The Judgment of the Court was delivered by
G.N. RAY, J.- This appeal has been preferred by the State of
West Bengal against the judgment of acquittal dated May 14,
1990 passed by the Division Bench of the Calcutta High Court
in Criminal Appeal No. 195 of 1990. By the aforesaid
judgment, the conviction and sentences against the accused,
Shri Orilal Jaiswal and his mother, Smt Gujarati Debi
Jaiswal, passed by the learned Sessions Judge, 12th Bench of
the City Sessions Court, Calcutta on February 29, 1990 in
Sessions Trial No. 1 of 1990 was set aside by the High Court
and the accused were acquitted of the conviction under
Section 306 read with Section 34 IPC and sentence of 5
years’ rigorous imprisonment and fine of Rs 1000 in default
simple imprisonment for 3 months and conviction under
Section 498-A read with Section 34 IPC and sentence of one
year rigorous imprisonment and a fine of Rs 1000 in default
to suffer simple imprisonment for three months.
2. The prosecution case in short is that Usha Jaiswal had
committed suicide by hanging on April 19, 1986 in the house
of her husband and the in laws within a year from the date
of marriage which was solemnised between Usha Jaiswal and
the accused 1, Orilal Jaiswal on May 31, 1985. It is the
case of the prosecution that it was a negotiated marriage
and according to the demand of the accused persons and other
members of the family of in-laws sufficient dowry including
colour T.V., motor cycle, gold ornaments etc. had been given
at the time of marriage. The prosecution case is that the
deceased, Usha Jaiswal, who was only 20 years old had been
treated cruelly and had been tortured both mentally and
physically by the accused. It has been alleged that within
a few days after the marriage, the father-in-law of accused
2 had died and accused 2 had treated the deceased cruelly by
telling her that she was a woman of evil luck (alakshmi) and
because of her evil luck, the father-in-law had died
shortly after the marriage. It has also been alleged that
after the marriage, the deceased, Usha Jaiswal, had
conceived but there had been an abortion after being
admitted in the hospital. Accused 2, the mother-in-law of
Usha Jaiswal caused severe mental pain by telling her in the
hospital itself that she was a woman of evil luck and that
she had swallowed her baby and she should commit suicide.
It has also been alleged that accused 1, the husband of
the deceased often used to come home drunk and physically
assault the deceased. Both the husband and his mother had
also caused severe mental torture to the deceased by telling
that she had brought bridal presents of sub-standard quality
and such articles should be taken back and dowry gifts of
good quality should be brought. It has been alleged by the
prosecution that as a result of such physical and mental
torture by the accused persons, the deceased became
unhappy and on several occasions when she had come to her
father’s house, she complained that she had been
78
maltreated and tortured both physically and mentally with
cruelty by the husband and mother-in-law in the manner
aforesaid. It has also been alleged that even on the day
when the deceased had committed suicide, namely, on April
19, 1986, accused 1, Orilal Jaiswal, came to the parental
house of the deceased at about 10.00 a.m. and informed the
mother of the deceased that his wife and mother had been
quarrelling and she should go to his house for settlement
but the mother of the deceased then informed accused 1 that
she would send her son the next day to the house of the
accused persons but shortly thereafter, a brother of the
deceased came to the house and informed the other brother
and the mother that something had happened to his elder
sister, namely, the deceased and she had been taken to the
hospital. The elder brother and thereafter parents and
other relations of the deceased rushed to the hospital when
they were informed that the deceased Usha Jaiswal had
committed suicide.
3. The brother of the deceased, Om Parkash, however, made
a statement in the police station that his sister had been
murdered but his statement was not treated as FIR. The next
day, namely, on April 20, 1986, the mother of the deceased
made a statement before the police which was recorded and
treated as FIR.
4. It transpires from the postmortem report that signs of
death by hanging were present and according to the doctor
conducting the postmortem examination the deceased had died
due to hanging. The doctor also noted a few marks of
abrasions on the cheek and also on the other parts of the
body which according to the doctor were ante-mortem in
nature. On being questioned at the time of deposition the
doctor had also stated that the mark of injury on the cheek
of the deceased was likely to be caused by a slap and other
injuries were also likely to be caused by fist and blows.
The doctor, however, stated on being cross-examined that
such injuries could also be caused if the deceased had
dashed against a hard substance and the injury on the neck
could be caused by the friction of the nylon rope.
5. After considering the evidences adduced in the case and
other materials on record the learned Sessions Judge held
that the case was not properly investigated by police
officer in charge and there were lapses on the part of the
investigating officer and witnesses for prosecution had not
been examined by the police at an early date. The learned
Sessions Judge commented on the performance of PW 14, Shri
Bimal Chander Biswas, a Sub-Inspector of Calcutta Police who
was the investigating officer in the case. The learned
Sessions Judge observed that the investigating officer had
deviated from his normal duties of investigation in a
serious case and most of his statement which was given out
at the time of cross-examination could not be treated as a
substantive statement either for the prosecution or for the
defence. PW 2, Kamla Jaiswal, the mother of the deceased,
stated that on May 31, 1985, the deceased was given in
marriage with accused 1, Orilal Jaiswal and sufficient dowry
had been given at the time of marriage as per demands of the
parents of Orilal. PW 2 further stated in her deposition
that after one month of the marriage, the deceased, Usha
Jaiswal, came to their
79
residence but she had noticed her daughter in anxiety and
she had been crying all the time. She had enquired about
the reason and then she was told by the deceased that since
the father-in-law of her mother-in-law had died after
three/four days of the marriage, the mother-in-law had
abused her by telling that she was ‘alakshmi’ and brought
misfortune. On other occasions also the deceased had stated
that her husband used to come drunk and abuse her and he had
maltreated her and even assaulted her physically and had
been telling her to take back all the bridal presents as the
same were of inferior quality and bring goods of better
quality. PW 2 Kamla had also stated that her youngest
daughter used to visit the matrimonial home of the deceased
and having come to learn from her that the deceased had not
been keeping well, she was brought to their house and
thereafter she was admitted to the hospital where she had
delivered a dead child. The mother-in-law of the deceased
came to the hospital to see the deceased and she told the
deceased that she was a woman of bad omen and vile even to
the extent of swallowing her baby. The mother-in-law had
also told her daughter that she should commit suicide. In
her deposition, the mother of the deceased also stated that
the in-laws also demanded fresh dowries of articles such as
fridge etc. She also stated that a few days before the
occurrence, the deceased had come to her residence and was
telling that she would not go to her husband’s place since
the husband and mother-in-law had been treating her cruelly.
She also stated that on the day of committing suicide the
accused, Orilal Jaiswal, came to her house at about 10.00
a.m. and told her to go to their house since her daughter
had been quarrelling with his mother. When she requested
Orilal Jaiswal to convince her mother Orilal replied that he
was unable to say anything to her mother. PW 2 Kamla told
Orilal Jaiswal that on the next day she would send her son
to their house. Shortly thereafter, in between 12.00 to
1.00 p.m., she had received the information that there had
been something wrong with her daughter who had been taken to
the hospital. Immediately his son, Om Parkash, went to the
hospital and thereafter she and other members of the family
went to the hospital where she was told that her daughter
had killed herself by hanging. She stated in her deposition
that she became shocked on hearing the news of death of her
daughter and was not in a position to make any statement.
She was taken home and she also became unconscious. Next
day, she requested her husband to take her to the police
station to make a statement. Accordingly, on the next day
she had been taken to the police station and she made a
statement which was written in Bengali and such statement
was treated as FIR by the police.
6. Kumari Asha Jaiswal the youngest sister of the deceased
was also examined as PW 5, and she had also stated that the
mother-in-law of her deceased sister had maltreated her and
used to tell her that she was the reason for the death of
her father-in-law and she used to describe her as a woman of
evil luck and that she should not live. She also stated
that on the day when her sister had committed suicide,
Orilal Jaiswal came at about 10.00 a.m. to their house and
told her mother that her deceased sister and her mother-in-
law were quarrelling and Orilal Jaiswal requested her
mother-in-law to go to
80
their residence. The mother expressed her inability to go
but told that she would send her eldest son, Om Parkash, to
the house of the accused on the next day. At about 12 noon,
on the very same day they got the information that something
had happened to her sister. Thereafter, they had been to
the hospital where they got the information that the sister
had died by hanging. She had stated that she had told the
police that the accused, Orilal Jaiswal, under the influence
of liquor used to tell her deceased sister to take back the
bridal presents because such articles were of bad quality
and he also used to beat her. The elder brother of the
deceased Om Parkash was also examined as a prosecution
witness (PW 6). He had also stated that his deceased sister
was subjected to physical and mental cruelty by the accused.
It appears that besides the elder brother of the deceased Om
Parkash PW 6, other relations of the deceased were also
examined by the prosecution but since such persons were not
examined at an early date it was suggested by the defence
that their evidence should not be taken into consideration.
7. The learned Sessions Judge inter alia came to the
finding that there was no unreasonable delay in lodging the
FIR by the mother of the deceased. It appears that the
learned Sessions Judge has accepted the explanation of the
mother of the deceased that on hearing the news of death of
her daughter by committing suicide, she became unwell and
was not in a position to make any statement on 19th but on
the next day she made a statement to the police and such
statement to the police was treated as FIR. The learned
Sessions Judge has also noted that the brother of the
deceased on the very same day made statement before the
police wherein he stated that his sister had been treated
cruelly by the accused persons ever since the marriage. The
learned Sessions Judge has also noted that the injuries by
way of abrasions noted on the person of the deceased by the
doctor conducting postmortem examination was likely to be
caused by slaps and fists. The learned Sessions Judge has
observed that although in the cross-examination, the doctor
conducting the postmortem examination had stated in answer
to the suggestion given by the learned counsel for the
accused that such injuries were also possible due to impact
against a hard substance and the abrasion noted on the neck
of the deceased could be caused by a friction from a nylon
rope which was a rough substance, such injuries were ante-
mortem in nature it was not likely that the said injuries
would be caused on the person of the deceased by hitting
against wall or other hard object after she had committed
suicide. The learned Sessions Judge was of the view that
there was a positive evidence from the side of the
prosecution that shortly after the marriage, the deceased
had been treated cruelly and mother-in-law had described her
as a woman of evil luck and held her responsible for the
death of her father-in-law. The mother-in-law had also
abused the deceased when she had lost her child by saying
that she was a woman of evil luck who had even swallowed her
own baby and she should commit suicide. The learned
Sessions Judge was of the view that there were evidences to
the effect that the deceased had been subjected to physical
and mental torture by the accused and she was asked to take
back the bridal presents by indicating that the articles
were of
81
sub-standard quality. The learned Sessions Judge has also
noted that although the evidences about the cruelty have
been given by very close relations of the deceased but
simply on that score the same were not liable to be
discarded. The learned Sessions Judge has also noted that
under Section 113-A of the Indian Evidence Act there was
legal presumption that the accused had abetted the
commission of suicide and such presumption has not been
rebutted by any reliable evidence adduced on behalf of the
accused persons. The learned Sessions Judge has also noted
that the deceased had committed suicide within a year from
the date of her marriage and in view of the evidence that
the deceased had been subjected to cruelty and mental and
physical torture the provision of Section 498-A IPC was also
attracted in the case.
8. The learned Sessions Judge therefore came to the finding
that even if the evidences of PWs 5 to 10 were left out of
consideration, there was no reason to doubt the veracity of
the evidences of the mother, PW 2 regarding the complicity
of the accused persons and from such evidence it transpired
that the accused persons had systematically abused deceased
Usha Jaiswal sometimes by calling her as a woman of bad omen
and sometimes asking for taking back bridal presents of
inferior quality and she was also abused for the failure to
bring further dowry from her parental house. It was due to
such systematic abuses caused on the deceased that she had
zilted (sic) from her normal mental frame and she was forced
to end her life by hanging. In that view of the matter, the
learned Sessions Judge held that both the accused persons
were guilty of the offences under Section 306 read with
Section 34 IPC and under Section 498-A read with Section 34
IPC and accordingly he passed the order of conviction and
sentences as indicated hereinbefore.
9. The High Court, however, came to the finding inter alia
that there was no convincing evidence of systematic cruelty
or physical or mental torture of the deceased by the accused
persons. The High Court has noted that although prosecution
has examined 19 witnesses but the conviction was based upon
the evidences of PW 2 and PW 6 namely the mother and elder
brother of the deceased. The High Court has held that only
allegation made in the FIR was that accused 2, mother-in-law
of the deceased had tortured her mentally by calling her
woman of evil luck and the deceased was mentally tortured by
telling that the marriage gifts were of sub-standard quality
and the same should be returned. The High Court has not
accepted the prosecution case that Usha had committed
suicide because of such mental torture. The High Court has
not also accepted the explanation given by the mother of the
deceased, PW 2, for not making the FIR on the day of
occurrence. It has been held by the learned Judges of the
High Court that if the mother had become unconscious, one of
her sons could have gone to the police station to file a
written complaint and it is not known why the father of the
victim and other grown up sons of PW 2 did not go to the
police station to make the FIR. A decision of this Court in
the case of Ganesh Bhavan Patel v. State of
82
Maharashtra 1 has been referred to by the learned Judges of
the High Court for holding that the delay in recording the
statement of material witnesses caused a cloud of suspicion
and the credibility of the entire warp and woof of the
prosecution story. The High Court has also held that from
the FIR it transpired that the accused 2, Smt Gujarati Debi,
had tortured the deceased mentally by saying ‘alakshml’ but
such description of the deceased had been made on two
occasions only. There is no allegation against accused 1
that he had ever induced her to commit suicide. Hence,
there was no case under Section 306 of the IPC against
accused 1, Orilal Jaiswal. The High Court has also held
that although the mother of the deceased, PW 2, had stated
in her deposition that a demand was made for fresh articles
such as fridge etc., such case was not indicated in the FIR
and PW 2 had also not stated such fact to the investigating
officer about demand of further dowry. The High Court has
also held that although allegation had been made against
accused 1 that he used to come home intoxicated and used to
physically torture Usha Jaiswal but there is no independent
and reliable evidence that Orilal Jaiswal came drunk and
tortured her physically and no circumstantial evidence to
that effect can be found. The High Court has also held that
the evidence of PW 6, Om Parkash, about the ill-treatment
meted out to the deceased should not be accepted because he
had not heard anything directly from the deceased but he
only heard such allegations from her mother. Hence,
deposition of PW 6 Om Parkash was only hearsay evidence and
no reliance should be placed on that. The High Court has
also drawn an adverse inference against the prosecution case
for not examining the father of the deceased. It has been
indicated by the High Court that although a medical
certificate has been produced to indicate that the father
was a cancer patient when the trial had started but there is
no evidence to indicate whether the condition of the father
had deteriorated between the date of occurrence and the date
of trial. The High Court has noted that as a matter of
fact, the father had accompanied PW 2 and PW 6 at Muchipara
police station at the time of lodging the FIR. Hence, he
was able to move at that time. The High Court has noted
that there is no evidence as to how and in what manner the
victim had received injuries noted by the doctor holding
postmortem examination. The High Court has held that there
is no evidence as to who had caused such injuries. On the
contrary, there is evidence that such injuries could have
been caused by hitting against a hard substance. The High
Court has come to the finding that the prosecution had
failed to establish the charges against the appellants and
the cruelty as enumerated in Section 498-A IPC had not been
established and if such cruelty had not been established,
the presumption tinder Section 113A of the Indian Evidence
Act cannot be pressed into service. Accordingly, Section
306 IPC also cannot be invoked. Since there is no
independent evidence of inducement to commit suicide either
by the mother-in-law or by the husband of the deceased the
conviction of the accused persons was unwarranted. In that
view of the matter the High Court set aside the
1 (1978) 4 SCC 371 : 1979 SCC (Cri) 1 : AIR 1979 SC 135
83
conviction and sentences and passed the order of acquittal
in favour of both the accused.
10. The learned counsel for the appellant submits that the
High Court has taken a very unreasonable view completely
overlooking the clinching evidences about the complicity of
both the accused for the offences charged against them. It
has been contended by the learned counsel for the appellant
that on April 19 itself the elder brother of the deceased Om
Parkash Jaiswal apprehending that the accused had murdered
his sister reported to the police station about such
offence. A written complaint was filed in the Muchipara
police station which was acknowledged by a receipt granted
by the police officer. Such complaint was simply ignored
and it is stated that such report was sent to the Assistant
Commissioner of Police at the Police Head Quarters at
Lalbazar. It has transpired from the evidence of PW 6 Om
Parkash that later on at the request of police authorities,
zeroxed copy of the said complaint was supplied by Om
Parkash. The mother of the deceased Kamla Jaiswal PW 2 made
a statement before the police officer in Muchipara police
station next day. Such statement was reduced to writing by
the police officer and was treated as FIR. Om Parkash was
also examined by the police on April 20. By that time, Om
Parkash came to learn that his sister was not murdered by
the accused but she had ended her life by committing
suicide. Hence, he made statement to that effect. It is
apparent from the FIR and also from the statement of Om
Parkash to the police that the husband and mother-in-law of
the deceased namely both the accused had treated the
deceased with cruelty almost from the very beginning of her
married life and she was subjected to both physical and
mental torture by various acts like abusing her as woman of
evil luck and suggesting that she should better end her life
by committing suicide. Such abuse was not just made once in
the beginning but when there was miscarriage of first
pregnancy in the hospital accused 2 again abused the
unfortunate daughter-in-law by calling her a vile woman of
evil luck (alakshmi) who had even swallowed her own child
and suggested that she should end her life by committing
suicide. The poor daughter-in-law was humiliated by telling
her that the bridal presents were of inferior quality and
should be taken back. She was oppressed by making further
dowry demands for fridge, V.C.R., etc. It is the positive
case made in FIR and in the statement of Om Parkash to the
police that the deceased Usha became unhappy from the very
beginning of her married life and she was being abused,
humiliated and subjected to mental cruelty and physical
assault till she had ended her life. Even shortly before
she had committed suicide, there was quarrel between the
deceased and accused 2. The doctor conducting postmortem
examination had noted there were Injuries on her person
which according to the doctor were ante-mortem in nature.
During his examination the doctor has stated that such
injuries were likely to be caused by slap and fist and blow.
Although in the cross-examination, the doctor has stated
that such injuries are also likely to be caused by dashing
against hard object and the injury on the neck could be
caused by a friction with rough nylon rope, the learned
Sessions Judge has given a very cogent reason as to
84
why the possibility of sustaining such injuries, which were
ante-mortem in nature, by dashing against hard object should
be discarded. It is only unfortunate that the High Court
has not considered such reasoning of the learned Sessions
Judge in their proper perspective. The learned counsel for
the appellant has submitted that completely overlooking the
fact that the brother Om Parkash made a written complaint in
the police station on the date of incident itself, the High
Court drew an adverse inference against the case of the
prosecution on the ground that even if mother became unwell
after hearing the death news of the daughter and could not
make statement, father, brother or other elder member of the
family ought to have lodged FIR without any delay and there
was no reason for lodging the FIR by the mother the next
day. He has submitted that the family of the deceased was
under a great shock because of the tragic end of Usha within
about ten months of her marriage. It is quite natural that
the mother had suffered great mental shock and as such she
was not in a position to make any statement to the police on
the date of incident. There was nothing unnatural in her
conduct. The learned Sessions Judge has rightly held that
there was a very reasonable explanation for the mother
making statement to the police on the next day. It has been
contended by the learned counsel for the appellant that Usha
lived only for about ten months after her marriage. During
such a short period, she had been abused and mentally and
physically tortured all the time. The High Court was not at
all justified in holding that there was no evidence of
cruelty and abuse from the husband and evidence of abuse
from the mother-in-law related to two occasions only. The
High Court has ignored the positive evidence that she was
subjected to physical and mental torture all throughout her
wedded life and several instances of abuse and torture were
mentioned. The learned counsel for the appellant has
submitted that the deceased was expected to tell her mother
and other close relations about her unfortunate experience
in the house of in-laws. Necessarily, mother and close
relations would be witnesses of the cruel treatment meted
out to the deceased. Despite clear and unambiguous
evidences about cruelty the High Court unjustly and on
flimsy grounds did not accept the prosecution case and set
aside the well reasoned judgment of the learned Sessions
Judge. The learned counsel for the appellant has submitted
that the reasoning of the High Court in basing its finding
are strained and against the clinching evidences adduced in
the case. The impugned judgment has resulted in gross
failure of justice and should be set aside and the
conviction and sentences imposed by the learned Sessions
Judge should be upheld by this Court.
11. The learned counsel appearing for the accused-
respondents, however, disputed the aforesaid contentions.
It has been submitted by the learned counsel for the
respondents that in a criminal trial, the offence charged
against the accused must be proved beyond any reasonable
doubt. However grave and intriguing may be the
circumstances, the court should ensure that the burden of
strict proof on the prosecution is not covertly substituted
by surmise and conjecture. Drawing our attention to the
findings of the High Court and the reasonings given
therefore, the learned counsel for the
85
respondents has submitted that it is unfortunate that Usha
ended her life within a year of her marriage but such
incident, however lamentable, should not outweigh the proper
analysis of the facts established in the case. It has been
submitted that against the husband, there is no evidence
that he had even induced or suggested that the deceased
should end her life. Allegation of physical and mental
torture by the husband are only wild allegations. It has
not been established by any convincing evidence by
disinterested persons that the husband used to come home
drunk and then abuse and assault the wife. Such incident
would have been noticed in a tenanted house having common
passage as the High Court has rightly pointed out. Demand
for a further dowry was not indicated by the mother in FIR
and such case was an embellishment at a later stage so as to
bring the prosecution case within the provision of Section
498-A IPC. The High Court has rightly not accepted such
false allegation by giving cogent reasons and no exception
should be made to the findings of the High Court against the
mother-in-law namely accused 2, it has been alleged that,
she had addressed the deceased as woman of evil luck
(alakshmi) only on two occasions and on such occasions,
suggestion for committing suicide was also given to the
deceased. For good reasons High Court has not accepted such
case. Om Parkash (PW 6) firstly alleged that it was a case
of murder but when he understood that such false allegation
would be of no consequence, he made a statement to the
police on the next day making various false allegations.
The FIR lodged by mother was a belated one and in a cool and
calculated manner various false allegations were introduced
in FIR. Such unjustified delay in lodging FIR with
consequential cooking up a false case is not countenanced
favourably by law courts. The High Court by relying on a
decision of this Court in a case of belated FIR declined to
place any reliance on the FIR. No tenant or neighbour has
deposed that the husband or mother-in-law used to abuse or
assault the deceased. There is no evidence from any
disinterested witnesses that at 10.00 a.m. or around that
time on the date of incident there was any quarrel between
the deceased and her mother-in-law or any other member of
the family. In the aforesaid circumstances, there was no
occasion to assume that marks of simple injuries on the
person of the deceased since noted by the doctor holding
postmortem examination, had been caused by slap and fist and
blow particularly when the doctor has categorically stated
that such injuries could be caused by hitting against hard
object and on account of friction from a nylon rope. It
came out from the evidence of the mother of the deceased
Kamla (PW 2) that she had not been staying in Calcutta but
she used to come to Calcutta on occasions. In such
circumstances, it was expected to have some letters written
by the deceased to her parents staying outside Calcutta
containing allegations of maltreatment and acts of cruelty.
The High Court has rightly noted that excepting depositions
by very close relations with embellishments, there is no
reliable corroborative evidence. Hence, the prosecution
case was not established beyond all reasonable doubts and
the accused were entitled to well-recognised principle of
giving benefit of doubt. The learned counsel has,
therefore, submitted that the
86
judgment of acquittal based on cogent reasons does not
warrant any interference by this Court.
12. After giving our anxious consideration to the facts and
circumstances of the case and the rival contentions made by
the learned counsels appearing for the parties, it appears
to us that the judgment of acquittal passed by the High
Court after setting aside the order of conviction and
sentences passed by the learned Sessions Judge, City
Sessions Court, Calcutta cannot be justified and the same is
against the weight of the evidence adduced in the case. We
have already indicated the reasonings of the High Court in
some detail. We may indicate here that the High Court has
summed up the following circumstances for the purpose of
holding that a grave doubt has been raised against the
prosecution story:
(i) There is no satisfactory explanation of delay in
lodging the FIR.
(ii) There is no dying declaration or suicidal note.
(iii) There is no letter during the subsistence of
marriage.
(iv) There is no letter addressed to the mother who used to
live outside Calcutta most of the time.
(v) There is no complaint either by the father or
father-in-law of the victim.
(vi) There is no evidence regarding the injuries received by
the deceased or the maltreatment.
(vii) No specific date has been given when the deceased
Usha had allegedly told her mother about the demand for
dowry or the maltreatment and no specific date or time has
been given for making such demand.
(viii) Although the adult members of the family of the
deceased consisting of four brothers, sisters and brothers-
in-law and father are though the residents of Calcutta, the
deceased had never complained anything to them.
(ix) The neighbour or tenants have not also been examined.
It is, therefore, necessary to consider the correctness of
such reasonings. So far as the explanation for the delay in
lodging the FIR is concerned, the learned Sessions Judge has
held that the mother has given a satisfactory explanation as
to why she made statement to the police on the day next to
the date of incident in question. It transpires from the
evidence of the mother that sometime between 12.00 to 1.00
p.m. the mother and the other family members got the
information that something had happened to Usha for which
she had been removed to the hospital. The elder brother Om
Parkash immediately left for the hospital and thereafter the
mother, father and other family members of the deceased
rushed to the hospital where they came to learn that their
daughter had died by committing suicide in the house of the
in-laws. There is no difficulty to imagine that such news
had caused a great mental shock to the mother particularly
when the deceased had to end her life within 10 months from
the date of marriage. If on getting the news of
87
suicide being committed by the daughter, mother becomes
unwell and is not in a proper mental frame to make any
statement to the police, no exception can be taken to such
conduct. It should be borne in mind that the elder brother
of the deceased gave a written complaint to the police on
the very day of the incident by indicating that there had
not been any natural death of his sister and he felt that
his sister had been murdered by her in-laws. On the very
next date, the mother made a statement to the police
indicating the plight of her deceased daughter and the
physical and mental torture to which she was subjected to by
the accused. Such statement of the mother has been treated
as an FIR in the case. In the aforesaid circumstances, it
cannot be held that there has been unjustified inordinate
delay in lodging the FIR and even if the mother had become
unwell after hearing the news of the daughter’s death other
adult members of the family could have lodged the complaint
with the police. It appears to us that the High Court has
failed to note that the elder brother of the deceased had in
fact made a written complaint on the very same day to the
police but the same was not treated as FIR by the police and
he also made a statement before the police on the next day
wherein the allegations of cruelty meted out to his sister
were clearly indicated. So far as the absence of dying
declaration and suicidal note is concerned, we fail to
appreciate how there would be a dying declaration when it is
nobody’s case that Usha was alive so as to make a dying
declaration. The absence of suicidal note does not appear
to us an important factor in deciding the case. It is in
evidence in the case that the deceased had been complaining
about the cruel treatment meted out to her. There are
clinching evidences to support the prosecution case that
Usha had been subjected to mental and physical torture and
she remained unhappy in the house of in-laws, and such acts
of cruelty, in ordinary course, were likely to disturb the
mental frame of the deceased and cause sufficient impulses
to commit suicide. Coming to the question of absence of
exchange of letters between Usha and the members of her
parental family during the subsistence of marriage, we may
indicate that barring the parents other members of the
family were permanent residents of Calcutta itself and
although the mother used to leave Calcutta at times, she
often used to come to Calcutta and it is the positive case
of the mother and also the elder brother of the deceased
that on a number of occasions when Usha had- come to their
house in Calcutta from the house of her in-laws, she had met
the mother and the other members of the family. Hence it
should not be held that exchange of letters was reasonably
expected.
13. Coming to the question of absence of complaint either
by the father or by the father-in-law of the victim, we have
failed to appreciate what was meant by the learned Judges of
the High Court by the absence of complaint made by the
father-in-law of the victim. So far as the complaint by the
father is concerned, it may be indicated that it is the
evidence of the mother that she had spoken to accused 2
namely the mother-in-law about the maltreatment meted out to
her daughter and she also implored before the mother-in-law
that the daughter should not be subjected to any abuses or
humiliations. It is
88
the prosecution case that mother-in-law abused the daughter-
in-law by saying that she was a woman of evil luck and had
brought misfortune to the family. It is therefore quite
natural that the mother of the deceased had made complaints
to her mother-in-law and had requested her not to abuse and
humiliate her daughter. Hence, the question of complaint by
the father was neither expected nor necessary. Corning to
the finding made by the High Court that there is no evidence
regarding the injuries received by Usha or the maltreatment
made to her, it may be indicated that the mother, elder
brother, sister and other relations of the deceased have
deposed about the maltreatment and physical assault of the
deceased. The doctor conducting the postmortem has noted
some injuries which were ante-mortem on the person of the
deceased. Whether such evidences are to be accepted or not
and whether the injuries, ante-mortem in nature found on the
person of the deceased can be explained or not are different
considerations but it will not be correct to hold that there
is no evidence about maltreatment given to Usha or there is
absence of any evidence of injuries sustained by her before
death.
14.Coming to the finding that no specific date has been
given when the deceased had allegedly told her mother about
the demand of dowry and maltreatment to the deceased, it may
be indicated that although exact date has not been given,
there is positive evidence of the mother and the elder
brother of the deceased that when after about a month of the
marriage, Usha came to her parental house, she had narrated
about cruelty and mental torture suffered by her in the
house of the accused. She specifically complained that
within a few days after her marriage the father-in-law of
accused 2 had died and in view of such death, she was abused
and treated with cruelty by accused 2. Thereafter, on other
occasions also whenever she had come to the parental house,
she had talked about such maltreatment. Usha was alive only
for about 10 months after marriage and it is nobody’s case
that the deceased complained about the maltreatment given in
remote past or only on specific occasions so that exact date
was required to be mentioned. Coming to the finding of the
High Court that the adult members of the family of the
deceased consisting of four brothers, sisters and brothers-
in-law and the father were residents of Calcutta but Usha
had not complained anything to them and non-complaint to
such close relations was not in conformity with the human
conduct, we may indicate that there is no basis for such
finding and such finding is contrary to the evidences
adduced in the case. We have already pointed out that the
deceased had complained to the mother and other members of
the family about the, maltreatment and the members of the
family have deposed to that effect. The prosecution case
was not properly investigated by the police for which the
learned Sessions Judge has rightly commented on the lapses
on the part of the investigating officer, Shri Bimal Chandra
Biswas, Sub-Inspector of Police. As the investigating
officer failed and neglected to examine the members of the
family of the deceased at an early date, the learned
Sessions Judge, in fairness, has not taken into
consideration the evidences of the sister and other close
relations of the deceased and has mainly relied on the
evidence of the mother in basing his
89
finding. Even if it is held that the deceased had
complained to her mother only about the cruel treatment
meted out to her, we think that for a newly married woman,
her misfortune in the house of in-laws was not expected to
be made public and confiding in the mother was only natural.
Coming to the observation of the High Court that the
neighbours or the tenants have not been examined, it appears
to us that in the facts of the case, no adverse inference
can be drawn for such non-examination. The abuse and insult
hurled on the daughter-in-law usually are not expected to be
made public so that the neighbours may have occasions to
criticise the improper conduct of the accused and hold them
with disrespect and contempt. The High Court has expressed
doubts about the genuineness of the case of physical torture
and abuses made by the husband and the deceased for the
absence of any independent evidence given by the neighbours
and cotenants about such physical assault or the abuses
hurled on the wife by the accused. We have indicated that
ordinarily it is not expected that physical torture or the
abuses hurled on the wife by the husband and the mother-in-
law should be made in such a way as to be noticed by the
tenants living in the adjoining portions of the house. It
is also not the case of the prosecution that the deceased
was physically assaulted so violently that the neighbours
came to know about such assault. It is also not the case
that abuses used to be hurled loudly so that the tenants had
occasions to hear them. It was therefore not necessary to
examine neighbour or tenants to prove the prosecution case.
In the instant case, the evidence about physical and mental
torture of the deceased has come from the mother, elder
brother and other close relations. Such depositions by
close relations, who may be interested in the prosecution of
the accused, need not be discarded simply on the score of
the absence of corroboration by independent witness.
Whether the evidence of interested witness is worthy of
credence is to be judged in the special facts of the case.
In our view, the acts of cruelty by the accused were
expected to be known by the very close relations like
mother, brother, sister, etc. The evidence of the mother
has been accepted by the learned Sessions Judge as worthy of
credence and we do not think that the same should be
discarded, in the facts of the case.
15. We are not oblivious that in a criminal trial the
degree of proof is stricter than what is required in a civil
proceedings. In a criminal trial however intriguing may be
facts and circumstances of the case, the charges made
against the accused must be proved beyond all reasonable
doubts and the requirement of proof cannot lie in the realm
of surmises and conjectures. The requirement of proof
beyond reasonable doubt does not stand altered even after
the introduction of Section 498-A IPC and Section 113-A of
Indian Evidence Act. Although, the court’s conscience must
be satisfied that the accused is not held guilty when there
are reasonable doubts about the complicity of the accused in
respect of the offences alleged, it should be borne in mind
that there is no absolute standard for proof in a criminal
trial and the question whether the charges made against the
accused have been proved beyond all reasonable doubts must
depend upon the facts and
90
circumstances of the case and the quality of the evidences
adduced in the case and the materials placed on record.
Lord Denning in Bater v. Bater2 has observed that the doubt
must be of a reasonable man and the standard adopted must be
a standard adopted by a reasonable and just man for coming
to a conclusion considering the particular subject-matter.
16. In Gurbachan Singh v. Satpal Singh’ Mr Justice
Sabyasachi Mukharji (as he then was) has very rightly
indicated that the conscience of the court can never be
bound by any rule but that is coming itself dictates the
consciousness and prudent exercise of the judgment.
Reasonable doubt is simply that degree of doubt which would
permit a reasonable and just man to come to a conclusion.
Reasonableness of the doubt must be commensurate with the
nature of the offence to be investigated. Exaggerated
devotion to the rule of benefit of doubt must not nurture
fanciful doubts or lingering suspicions and thereby destroy
social defence. Justice cannot be made sterile on the plea
that it is better to let hundred guilty escape than punish
an innocent. Letting guilty escape is not doing justice,
according to law. (emphasis supplied)
17. In the instant case, the learned Sessions Judge has
come to the finding that the charges levelled against the
accused have been proved by indicating cogent reasons
therefore. We have already indicated that the learned
Judges of the High Court have entertained a grave doubt
about the correctness of the prosecution story for the
circumstances indicated hereinbefore. We have analysed
those circumstances and in our view the said grounds do not
stand scrutiny and they are against the weight of the
evidence. We may add here that the Court 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 found guilty. But
in the facts and circumstances of the case, there is no
material worthy of credence to hold that Usha was
hypersensitive and that for other reasons and not on account
of cruelty she had lost normal frame of mind and being
overcome by unusual psychic imbalance, decided to end her
life by committing suicide. The evidence adduced in the
case has clearly established that Usha was subjected to
abuses, humiliation and mental torture from the very
beginning of her married life. Within a few days after the
marriage when a newly married bride would reasonably expect
love and affection from the in-laws, she was
2 (1950) 2 All ER 458, 459: 66 TLR (Pt. 2) 589
3 (1990) 1 SCC 445 : 1990 SCC (Cri) 151 : AIR 1990 SC 209
91
abused by the mother-in-law, accused 2 by saying that the
deceased was a woman of evil luck only because an elderly
member in the family had died after her marriage. According
to the evidence given by the mother of the deceased, accused
2 even suggested that being a woman of evil luck (alakshmi)
the deceased, should not live and end her life. When Usha
conceived for the first time she had the misfortune of
abortion. When the unfortunate daughter-in-law would
reasonably expect sympathy and consolation from the mother-
in-law, the evidence in this case is that the mother-in-law
abused the deceased in the hospital by telling that she was
a woman of evil luck. The evidence in the case reveals an
act of extreme form of cruelty by telling the unfortunate
mother that she was vile enough to swallow her own baby and
she should commit suicide. There is also evidence in the
case that the husband used to come home drunk and abuse her
and also used to assault her on occasions. The bridal
presents brought by her were branded as goods of inferior
quality and she was asked to take the said articles back to
her parental home. Such acts, to say the least, were very
unkind and a newly married woman is bound to suffer a great
mental pain and humiliation. Even if we do not take into
consideration the demand for further dowry gifts since the
case of such demand had not been indicated in the earlier
statement made by the mother which was treated as FIR, there
is no manner of doubt that the evidence of the mother which
has been accepted by the learned Sessions Judge and in our
view there is no reason to discard the same, clearly
establishes that the deceased had been subjected to physical
and mental torture all throughout. It is only unfortunate
that accused 1, the husband, instead of giving her solace
against the humiliation and abuses hurled by the mother-in-
law, either kept silent or expressed his inability to give
good counselling to the mother and to protest against act of
mental torture and humiliation. On the contrary, he also
treated the wife with cruelty by telling her to take the
bridal gifts back to her parental home and also by
physically assaulting her. Such acts, in our view, were
quite likely to destroy the normal frame of mind of the
deceased and to drive her to frustration and mental agony
and to end her life by committing suicide. Under
explanation (a) of Section 498-A IPC, “cruelty” means “any
wilful conduct which is of such nature as is likely to drive
the woman to commit suicide or to cause grave injury or
danger to life, limb or health (whether mental or physical)
of the woman”.
18. In the aforesaid circumstances, the offence under
Section 498-A IPC is clearly established against both the
accused. We therefore allow the appeal in part by setting
aside the order of acquittal under Section 498-A IPC. We
convict both the accused namely Orilal Jaiswal and Gujarati
Debi under Section 498-A IPC but considering the age of
accused 2, Gujarati Debi, we impose sentence on her to
suffer rigorous imprisonment for 2 years and a fine of Rs
2000 in default to suffer further imprisonment for four
months. The accused 1 Orilal Jaiswal is sentenced to suffer
rigorous imprisonment for 3 years and a fine of Rs 2000 in
default to suffer further rigorous imprisonment of four
months under Section 498-A IPC. Although there are
92
materials on record to indicate that both the accused were
also guilty under Section 306 IPC but we are inclined to
give them benefit of doubt so far as the charge under
Section 306 IPC is concerned and they are acquitted of the
said charge. The impungned judgment of the High Court stands
altered to the above extent.
99