*THE NIGHTINGALE STOPPED SINGING

IN THE COURT OF ADDITIONAL DISTRICT & SESSIONS JUDGE,

FAST TRACK COURT, 1st COURT, ASANSOL (BURDWAN)

Present:- Harjinder Singh, Additional District and Sessions Judge.

Dated, Asansol the 5th day of March, 2002

State vs. Souma Deb

Sessions Case No.124 of 2001

Sessions Trial No.11 of 2001

Arising out of Asansol (N) P.S. Case No. 11 dated 27-5-98 (GR No.646 of 98)

under Sections 498A/306 I.P.C.

J_U_D_G_E_M_E_N_T

The complainant Promod Bannerjea s/o Purna Shashi Bannerjea and a r/o R.K. Road, Ismail, P.S.: Asansol (N) on 27-05-1998 at about 19.55 hours lodged an F.I.R. against the accused Souma Deb s/o Late Sushanta Deb a resident of Kalyanpur Housing under P.S. : Asansol (N) in respect of the incident alleging in his F.I.R. that his sister Nupur got married to the accused by way of a registered Court Marriage in the month of October, 1989 and since after her marriage with the accused, the accused treated his sister badly and used to assault her and subject her to torture on one pretext or the other. The accused used to tell the sister of the complainant on various occasions to bring money from the house of the Complainant, but the complainant party being economically weak, could not pay money according to the demands of the accused. As a result, the accused increased torture upon the sister of the complainant with the passage of time. The complainant further alleged that the accused worked in a Circus Company at different places. While working in the circus, the accused developed illicit relationship with another girl working in the Circus and he wanted to marry the said girl. On 24.05.98, the sister of the complainant went to the accused at Suri. There an argument between the sister of the Complainant and the accused took place and the accused threatened to divorce the deceased sister of the complainant. Thereafter, both of them returned to Asansol. The accused after return severally pressurized the deceased for a divorce and also assaulted her. The deceased sister of the complainant revealed all these facts to the Complainant party. On 27.05.98 at about 11.00 hours, the accused came to the house of the complainant and informed them that Nupur is seriously ill and hospitalized in the Government Hospital. At that time only the mother of the complainant was in the house and the accused informed this to her. On hearing this, the mother of the complainant went to the hospital and there she learn t that the deceased was admitted in the hospital on 26.05.98 at about 2.30 AM and that she expired long ago. The complainant therefore, prayed for necessary action against the accused. The complainant in his F.I.R. stated that he is of firm belief that his sister committed suicide on account of mental and physical torture to which she was subjected by the accused. On the basis of the aforesaid F.I.R., the police started the aforementioned case against the accused and after investigation the I.O. submitted a Charge-Sheet bearing No.130/99 dated 28.09.98 under Secs. 498A/306 I.P.C. against the accused. After commitment and transfer of the case-records to this Court, a Charge u/Secs.498A/306 IPC was framed against the accused, who on being asked pleaded not guilty and claimed to be tried. As a result the accused was charged with and tried for the aforesaid offences by this Court. The accused neither filed any W.S. as envisaged u/Sec.233(2) of the Cr.P.C. nor adduced any oral evidence in support of his defence case. However, certain documents were marked Exts. A to E in support of his defence case. The defence case of the accused as revealed in his 313 Cr.P.C. Examination is that the deceased though lived in his house and he accorded her the status of wife, she was not her legally married wife and on account of his service he was not in a position to subject the deceased to any physical torture. According tho him, he has been falsely implicated in this case. According to him, he learn t about her wife's hospitalization over telephone while he was at Sainthia and on arrival, he found his wife in dead condition.

POINTS FOR DETERMINATION

DECISION WITH REASONS.

Points Nos. 1 to 4 :- All these four points are taken up together for adjudication for the sake of convenience, continuity and brevity in discussions. The prosecution examined in all 11 witnesses and proved six documents marked Exts.1 to 6 in support of their case. PW1 (Promod Bannerjea) who is the Complainant, ins his evidence stated, “ Nupur Deb was my sister. She got married to the accused Soumu Deb in the year 1989. Since after marriage, she was subjected to torture and the matter was also brought to the notice of the parents of the accused. She was subjected to torture on account of demands for money made by the accused. On 27.05.98 she was compelled, on account of such torture to commit suicide. Soumu Deb came with an Advocate and informed me about her death on 27.05.98. He told me that the deceased complained of headache and he had given her one aspirin. Thereafter, foam started coming out of her mouth and then he took her to S.D. Hospital in the night. At this, my mother raised the doubt if foam could come out on consuming one aspirin! Then the accused invited my mother to visit the Hospital. When my mother along with the accused and one Advocate went to the Hospital, she found that her daughter was in dead condition. Then I lodged a complaint with the P.S. which was written by Sisir Bannerjea. He wrote the complaint as per my dictation. I signed the complaint......”

From the aforesaid evidence of the complainant we find:-

If we go through the cross-examination of this witness, we find that the defence did not at all dispute that the accused took the deceased to the Hospital. The aforesaid evidence of PW1 as well as the F.I.R. Ext.4 shows that the mother of the Complainant whom the accused narrated the incident after hospitalization of the deceased, is therefore, an important witness as any extra Judicial confession/ admission made befor her would be of utmost importance in deciding the issues involved in the light of other relevant evidence adduced by the prosecution against the accused.

In order to cut short unnecessary details, I would like to drop certain allegations against the accused at the outset on account of the following evidence adduced by some of the key prosecution witnesses. Dr. Mrs. Tapasi Dutta (PW3) and Dr. Satinath Bannerjee (PW6) who preformed post mortem over the dead body of the deceased, both did not find any external injury on the dead body of the deceased suggests that physical assault may not be the immediate proximate cause of commission of suicide, if any, by the deceased. Similarly, PW9 ( Smt. Uma Rani Bannerjea), the mother of the deceased, in her cross examination stated, “ The accused used to send money to us by M.O. For the maintenance of our daughter. I helped my daughter quite often to run her family. I have no allegations in respect of the money that I paid to my daughter for her maintenance.” On the face of such evidence, it would be futile to further pursue the allegations regarding dowry demand or demand by the accused as a person who sends money the mother-in-law for the maintenance of his wife, cannot be expected to make dowry demand or money demands from such in-laws, except to meet some genuine financial crisis, which may have nothing to do with torture related to money demand. Similarly, there being no external injury on the dead body of the deceased, the deceased can't be said to have committed suicide on account of her being subjected to any physical assault, just before her unfortunate death.

I feel, in order to appreciate the evidence on record, it is extremely important to now discuss below the nature and character of the deceased as elicited by ld. Advocate for the accused while cross-examining prosecution witnesses and on the basis of certain documents got exhibited by the accused. These facts, in my opinion that merit consideration are as follows:-

(a) PW1 (Promod Bannerjee) in his cross-examination mde the following statements:-

(b) PW5 ( Nazir Ahmed) in his cross examination revealed, “ It is true that during her life-time, several boys used to visit the deceased Nupur in her house. I submitted a mass petition through Mahila Samity to Nibedita Thana i.e. Asansol (North) P.S. etc. complaining of the activities of dancing and singing going on in the house of Nupur Bannerjea.”

Ext. B is a certified copy of certificate of Marriage issued by one S.M. Sarkar, Marriage Officer, Burdwan according to which the deceased married one Pradip Bakshi on 05.08.91 under Section 13 of XLIII of 1954. Ext. 'C' is the certified copy of the Formal F.I.R. u/Secs.364/376/34 I.P.C. lodged by the deceased Nupur Bannerjee C/o Purna Sasthi Bannerjee with the Asansol (N) P.S. on 08.12.96 on the basis whereof Asansol (N) P.S. Case No.177/96 was started against the accused 1.Animesh, 2. Bidyut Kar, 3. Ruso @ Kamal Gupta and 4. Raja – all of Kalyanpur Housing and which resulted in filing up of GR Case No.1610 of 96 in the Court of Ld. S.D.J.M. Asansol. In this F.I.R., the deceased alleged that she became friendly with these accused persons and her relations with Animesh became intimate and he started spending nights in her house and she developed sexual relations with him. Thereafter, she narrated how the incident of kidnapping etc. took place, which is not the concern of this Court at this stage. Ext. 'D' is the forwarding report of the accused Animesh after his arrest, while Ext.'E' is the Charge-Sheet submitted in the said case (Certfied copies).

In a nutshell, the deceased Nupur possessed all kind of negative qualities that may be found in a woman. She treated the institution of marriage with utmost contempt and was ready to marry any Tom, Dick and Harry at the drop of a hat. Fidelity was not her virtue and she did not hesitate in developing sexual relations with persons outside the matrimonial-bonds. She, it appears was a hedonist and pleasure alone, even bereft of any morality, was her philosophy of life at least for quite sometime. She was a persona non grata and the Society disliked her way of life which is clear from the fact that a mass petition was submitted to the police by the people of the locality where she resided. But, unfortunately, these were the very qualities, which no husband would like her wife to possess. No husband would like that her wife should be unfaithful, infidel, have illicit physical and sexual relations with unknown persons. Any husband, worth his salt, unless he himself is perverted and dependent on the earnings of his wife, would like to get rid of such an immoral, infidel, unfaithful wife whom no body in society liked. There are only three ways how a person apart from natural death of such a wife, may get rid of such a wife and they are, (1) Divorce, (2) Forcing the wife to commit suicide or (3) Her Murder. In other words, the accused as a husband had a very strong motive to get rid of his wife by adopting any one of the three Courses available to him. The evidence on record also shows that the deceased was barren i.e. unable to bear a child. Every husband would like to have at least one child to inject happiness in one's life. Her barrenness was an additional incentive for the husband to ger rid of her. PW-3 (Dr. Mrs. Tapasi Dutta ) in her evidence stated, “ On examination I found no external injury. I found one old infra umbilical mid line scar ( Surgical )” In her cross-examination she explained, “ The infra umbilical mid-line scar (Surgical) is a scar of previous Surgical Operation and not any scar of recent injury.” I agree with her and I suspect, the deceased, in order to get rid of repeated pregnancies, got herself sterilized by undergoing an operation and thus became barren for all times to come. P.W.-1 (Promod Bannerjea), P.W.-7 ( Purna Shashi Bannerjee ), P.W.-8 (Pijush Bannejee), PW-9 ( Smt. Uma Rani Bannerjee) and P.W. 10 ( Rakhi Bannerjee) all of them stated that the deceased got married to the accused in the year 1989. When these facts were put to the accused, his replies to question No.2 and 16 are worth noting. The reply to question No.2 when translated into English would read, “ There was no social marriage between her and me. She had also married several other persons. She used to reside with me and I had given her the status of a wife.” In reply to to question No.16, the accused repeated, “ There was no social marriage between us. She used to reside alone in my house.” Ext.6 is the Seizure-List showing seizure of six documents by the I.O., but the prosecution, for reasons best known to the prosecution did not get even one of these several seized documents exhibited as if the whole exercise of seizure was meaningless, though several witnesses appeared in Court who could have proved these documents which included a letter written by the deceased to her brother Pijush Bannerjea. The documents seized remained freezed with the prosecution and never saw the light of the day. Be it as it may, one such document seized was an application for registration of marriage under the Hindu Marriage Act, 1955. Schedule 'A' Memo No.31 dt. 19.1.98 another Hindu Marriage Registration No.103/98 Schedule 'C' Hindu Marriage Register in the name of Soumo Deb and Nupur Deb. From these entries, it is clear that the marriage between the accused and the deceased got registered by Registration No. 103/98 on 19.01.98 vide Sl. No.22 dated 19.01.98. Under such circumstances, it becomes difficult to disbelieve P.W.-8 (Pijush Bannerjee) when he in his evidence stated, “ My sister told us that since she is unable to bear a child, the accused told her either to divorce her or commit suicide. Then out of feat that the accused may leave our sister, we got her marriage with the accused registered. Three months after that my sister died of consuming poison.” It is true that this man, in his evidence made several statements in his cross-examination, which are not borne out by any documentary evidence or by corroborative evidence. He in his cross-examination, probably with a view to appear smart, it appears lied and embellished his statement under Sec.161 Cr.P.C. into a complainant in the expert hands of a seasoned Advocate. In his cross-examination, P.W.-8 stated, “.............I stated this to the I.O. on 27th of the month at about 12.00 hours when I was examined by the I.O. .............I cannot tell the contents of the documents I signed. I made a statement to the police and also signed the same. Today I was not shown the complaint lodged by me. The police wrote my statement and I signed the same.” Hon'ble Supreme Court in Bhoginbhai v. State of Gujarat, 1983 Cri.L.J. 1096 = AIR 1983 SC 753 in para 5 & 6 of their Judgement while enumerating the factors on account of which discrepancies creep into the evidence of witnesses observed, “A witness though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross-examination made by the counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him – perhaps it is a sort of psychological defence mechanism activated on the spur of the moment.” I believe this is what happened in this case as well. Hon'ble S.C. in State of U.P. vs. Anil Singh, AIR 1998 S.C. 1988 observed, “........With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is tendency amongst witnesses in our country to back up a good case by false or exaggerated version. It is also experienced that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reasons to believe that the inconsistencies of falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside a criminal trial merely to see that no innocent man is punished. A Judge also presides over to see that a guilty does not escape. One is as important as the other. Both are public duties which the Judge has to perform.” Therefore, the primary duty of this Court is to cull out the nuggets of truth from a plethora of evidence adduced before this Court during the trial. Ld. Advocate for the accused submitted before me at the time of arguments that since the deceased was not the legally married wife of the accused, the charge u/Sec.498A I.P.C. cannot be sustained against the accused. He further submitted that the witnesses themselves are not sure about the real cause of death of the deceased, the offence u/Sec.306 I.P.C. can also be not sustained against the accused.

The evidence of the close relatives of the deceased, as discussed earlier regarding the year deceased got married to the accused clearly shows that the marriage took place in the year 1989 while, in view of certain circumstances created by the accused i.e. pressurization of the deceased to divorce him, the relatives of the deceased thought it safe to get the marriage that place in the year 1989 registered for the sake of safe future of the deceased and this Registration, as per the details of the registration certificate, was done on 19.01.98. the fact that the deceased was living inthe house of the accused much before this registration would be clear Ext.'A' dt. 08.12.96 where the deceased gave her residential address that tallies with the present residential address of the accused as mentioned Charge-Sheet submitted by the I.O. in this case. In case, the marriage took place in the year 1998, the deceased would not have gone and resided with the accused in his house. Now, even assuming, though not holding that the deceased was not the legally married wife of the accused, in this case, yet the accused can not escape his liability under sec. 498A I.P.C., if any, as Hon'ble Andhra Pradesh High Court in a similar case as reported in Vungarula v. State of Andhra Pradesh, 1988 (1) Crimes 976, where the deceased and accused were living together as wife and husband, shared income, and the witnesses deposed that the deceased was the mistress of the accused, held that it is not necessary to give a restricted meaning to the expression “husband”. Their relationship was that of husband and wife. There was no reason as to why the provisions of Sec.498A would not be attracted in the instant case.” The aforesaid observations apply in this case much better than the said case as in this case, the marriage between the parties was duly registered. Besides, in order to be guilty for an offence under Sec. 306 IPC, one need to be the husband of the deceased wife, if the facts and circumstances of the guilt are otherwise established.

PW-7 (Purna Shashi Bannerjee), in his evidence stated, “ I gave her in marriage to accused Shambhu ( should be Soumu ) Deb in the month of October, 1989. She lived happily for two years in the house of her husband, but after two years she was subjected to torture. The accused used to tell her either to divorce him or to commit suicide by consuming poison.” I tend to believe the credibility of this piece of evidence as because it is quite probable and fits very well with some other independent evidence. Soon after marriage, a youthful couple tends to enjoy and get swayed by the charm and bliss of sexual enjoyment. After one's sexual appetite is satisfied, first flush of emotions subsides, only then one gets awakened to the flaws and shortcomings of each other. During this period, and in case one is barren, this is the right time such a knowledge dawns upon the other partner. I won't be surprised that during this period the accused husband started feeling aggrieved on account of the flaws that I mentioned in the character of the deceased and started to try to wriggle out of the unwanted bondage. The deceased, who must be a good artist as she used to go to Calcutta, Muzaffarpur, Delhi etc. etc. with her orchestra party and enthralled audience by singing Pop songs of Lata Mangeshkar, probably thought she obliged the accused by marrying him, must have felt outraged at these sudden change in attitude of her husband and the consequent bitterness such a demand of his to divorce him, in all probability, decided to teach him a lesson and married one Pradeep Bakshi, as per Ext. 'B' executed on 05.08.91 by way of a registered marriage. Since this incident took place roughly after two years after her marriage with Soumu Deb, I tend to believe the evidence of the father of the deceased referred to earlier to the effect that she lived happily fro about 2 years after her marriage and after 2 years, the accused told the deceased either to divorce him or to commit suicide by consuming poison. The deceased, on account of her misplaced calculations, it appears thought that she being in great demands amongst her admirers would not be the looser and it is the accused who would regret what he stated and demanded. This second marriage, which was void ab initio, on account of having taken place during the life-time of the first undivorced husband, it appears did not click, otherwise the deceased would not subsequently be again found living in the house of the accused. P.W.-2 (Pradeep Nayek) who is an advocate and a resident of Kalyanpur Housing Estate, in his evidence stated, “I know the accused Soumu Deb (identifies). I also knew his wife Nupur Deb who is now dead. I can't say if Nupur was the legally married wife of the accused or not, but, she used to live with the accused in his house. I and the other people got the news that she became sick in the night and that she was then hospitalised and then she expired in the hospital.” This evidence of P.W.-2 was not even challenged by the defence in his cross-examination. In his cross-examination, he clarified, “ I did not see their marriage, but I have seen Nupur and the accused to live together as husband and wife in the same house.”

After ditching of the deceased by her second husband, failure of her efforts to rope-in one Animesh Das as her next hope, public started raising objections against her way of life by making mass petition before the police, her first husband – the accused – constantly telling her to divorce, the deceased, it appears, felt feeling lonely, sad and may be depressed, when the harsh realities of life gazed squarely at her face.

She created such a reputation about herself that everybody shunned her. Even her own blood relations, who may not be dropping crocodile's tears, it appears did not approve of her activities as almost all of them in their cross-examination admitted they never went to meet the deceased in her Kalyanpur House. I believe P.W.-1 (Promod Bannerjee) when in his his cross-examination disclosed, “She told me that she lost appetite and suffered from insomnia. She also told that she did not like such lonely life and she won't be able to survive in this manner.” In Poolakkal Kunchu v. State 1986(2) Crimes 225, it was recognised that the feeling of unhappiness in future life and the gloomy future are factors which can prompt a lady to take the extreme step. It is in this context that the role of the accused, who constantly pressurised the deceased to divorce him becomes crucial as a demand which the deceased ignored sportingly when she was full of confidence, could spell disaster in a depressed, frustrated and pessimistic state of her mind when evidence on record suggests that the deceased was shunned by almost everybody including her own blood relations. Even a small nudge, under such a state of mind may precipitate a feeling to commit suicide. It is a well known fact that a divorce proceedings, if one of the partner decides to contest become prolonged and protracted. Therefore, the accused probably in a hurry to get a quick remedy started to nag her by putting pressure upon her to divorce him. His object appeared to be to make the deceased agree to a divorce on mutual consent, hence the constant and non-stop pestering on his part telling the deceased to either divorce her or to commit suicide by consuming poison. The accused, in a hurry to start afresh his matrimonial life, could not wait for the result of a contested divorce case. Under this background the conduct of the accused needs to be scrutinized minutely.

But first of all, it should be decided if the deceased died a natural death or an unnatural death. Dr. Sati Nath Bannerjee (P.W.-6) whose medical evidence was not even challenged in his evidence stated, “Her internal organs were congested and the mouth and pharynx were full of froth.” Oozing of froth from mouth and nostrils is one of the important symptoms of death on account of consumption of certain kind of poisons.” In the case of State of Punjab v. Raj Singh, 1992 (2) Crimes 840, the doctor who condocted the post-mortem examination on the dead body stated in the report : “......the eyes were partially open, Mouth was closed. Frothy material was coming out of the mouth and nostrils. There was no eternal mark of injury. All the internal organs were healthy. The stomach contained about 4 ounces of semi-digested food.” On receipt of the report of Chemical Examiner, the doctor gave the opinion that the death of the deceased took place on account of ingestion of organo-phosphorous compound. Though, in this case, no chemical report is received, the symptoms exhibited by the deceased as revealed in her post-mortem are almost similar to the symptoms stated in the aforesaid case. There is not an iota of evidence to suggest that the deceased, before her sudden hospitalization, on account of sudden sickness, suffered from any disease like acidosis, Pneumonia, gastritis, cancer etc. etc as stated at page 15 of the written argument submitted by the Ld. Advocate for the accused. Death in none of the said diseases can occur on the same day the diseases attacked the patient. There is absolutely no evidence from either side that the deceased suffered from any of the aforesaid diseases in the past. Since the deceased became sick suddenly in the night and expired on the same night, it is undoubtedly a case of death caused by ingestion of some kind of poison as is evident from the oozing out of froth from the nostrils and mouth. Only poisoning can achieve such quick and sudden end to a healthy life. I have no hesitation in ruling out completely death of the deceased on account of any natural cause or disease.

Therefore, in this context the evidence of the mother of the deceased to whom the accused first met after her hospitalization assumes tremendous importance as whatever the accused stated toher amounts to extra-judicial confession or at least admission of facts. P.W.-6 (Uma Rani Bannerjee) – the mother of the diseased – in her evidence stated, “I am a r/o Ismail which is under P.S. Hirapur. Nupur was my daughter and she got married to accused Soumu Deb in October, 1989 and the accused Soumu Deb, my son-in-law is present in Court today (identifies the accused). After marriage, my daughter used to come and complain to us that the accused is creating a lot of trouble for money. The accused behaved well with her only when money was paid to my daughter. In the year 1998, in May month, the accused got him (should be her) admitted in the hospital on the 26th day of the month on Tuesday. On 27.05.1998 at about 11.00 the accused came to our house and told us that she was admitted in the Hospital. He told us that after she complained of headache, he gave her Aspirin to eat and as soon as she swallowed aspirin, she started trembling and a foam came out of her mouth. Then on receipt of this information, I rushed to the Hospital to see my daughter. On arrival at the Hospital, I found my daughter lying dead like a stone.” In her cross-examination, she stated, “I told the I.O. that the accused administered her Aspirin as stated by the accused to me. I cann't say what statement of mine was recorded by the I.O.” I tend not to attach much importance to omission or non mention of administration of Aspirin in the F.I.R. as Aspirin is not a poison and a complainant may ignore mentioning administration of Aspirin to the deceased while lodging the F.I.R. an F.I.R. as per Mani v. State of Kerala, 1987 Cri.L.J. 1965 is not the encyclopedia of the entire prosecution case and several factors would determine what would be said and what would be missed by the informant in the F.I.R. The evidence of this witness that it was the accused who took the deceased to the hospital and got her admitted in the hospital as also corroborated by other witnesses, was not even contradicted in the cross-examination of this witness except regarding the allegations regarding administration of Aspirin by the accused. Therefore, the conduct of the accused in withholding the news of the death of the deceased to the relatives of the deceased and instead, misleading her relatives that the deceased was sick and in serious condition, betrays his guilty mind. The accused, as already discussed by me earlier had an extremely strong motive to get rid of the deceased and since the deceased stayed with him as his wife in his own house, he had a very good opportunity to commit the crime as alleged. It is unfortunate that the prosecution inspite of the specific allegations in the F.I.R. that the deceased had gone on 24.05.98 to Suri where there was a quarrel between the husband and the wife and thereafter, both of them returned to Asansol and the accused again asked the deceased to divorce her, did not lead any evidence in this regard. But, the circumstantial evidence establishes beyond doubt that the accused and the deceased lived together in the same house, the deceased suddenly on the night of 26.05.1998 became sick, and the accused as per his extra Judicial confession/admission got her hospitalised and then informed falsely after her death that she was sick and hospitalized, while in fact Nupur was dead when he informed the mother of the deceased regarding her sudden ailment. Therefore, the conclusion becomes irresistible that either the accuse himself administered poison to the deceased or forced her to take the ultimate step of bringing an end to her life by again subjecting her to mental torture, by pressurizing and demanding her to agree to him him divorce. Of the two alternatives, the accused, I feel should be given the benefit of doubt as regards, commission of homicide, if any on the deceased, as when there are two opinions in respect of any incident, the accused is entitled to the opinion that goes in his favour. But, so far as commission of suicide by the deceased is concerned, the accused on account of constant pestering of the deceased to divorce her, even in her depressed and frustrated state of mind, is clearly guilty of committing the offence of abetment of suicide by the deceased. He undoubtedly created conditions in which the deceased felt lonely, unwanted, neglected and depressed and the accused instead of giving her moral support added to her miseries by constantly asking her to give him divorce, thus drowning even the last straw of hope for the unfortunate wife. It would have been perfectly in order, had the accused filed a divorce suit against the deceased. But, to nag and torture a wife constantly telling her to give him divorce, in my opinion, under the given circumstances amounts to sufficient mental cruelty that may lead to commission of suicide by a frustrated wife as a result of ceaseless mental torture. Therefore, I have no hesitation in holding that the accused at least abetted commission of suicide by the deceased Nupur, in case he himself did not administer the poison to the deceased. The mental cruelty to which the deceased was subjected to and as discussed in the light of some facts recorded in several documents, including that filed by the accused, in my opinion was of such a nature that could drive any frustrated wife to commit suicide. I reject the alibi of the accused that at the time of the incident, he was posted at Sainthia and that he received information there that she was hospitalized and on arrival from Sainthia he saw the deceased in dead condition. I reject this alibi because onus was upon the accused to establish the alibi suddenly taken by him at the stage of asking him 14th question in his examination u/Sec.313 of the Cr.P.C. while, he could have given the same reply when a similar question was put to him in question No.5 of the 313 Cr.P.C. examination of the accused. No evidence was adduced by the accused in support of the alibi taken by him. Besides, the defence did not suggest even to any one witness during their cross examination that she was taken to the hospital by somebody else and not the accused. The extra-judicial statement made by the accused to the mother of the deceased at the time he informed the incident to her demolishes completely the alibi taken by the accused. Besides, as per F.I.R. the deceased was got admitted in the hospital in the night at about 2.30 A.M. and it would be impossible for the accused to start from Sainthia and reach Asansol, before the news reached the relatives of the deceased who were residents of Ismail under P.S. Hirapur in the Asansol sub-division. Moreover, there is no evidence to support that Nupur after taking poison slept with keeping door of her house open so that others may find out that she is sick and take her to the Hospital. A patient on death-bed can not walk of her own to the hospital for her own treatment. The following circumstantial evidence points the needle of accusation only against the accused and exclude the possibility of any other person being responsible for the death of the deceased:-

Therefore, in my opinion, the evidence on record and as discussed above, is sufficient to establish the guilt of the accused u/Secs.498A/306 IPC. I hold that the accused subjected the deceased to such a kind of mental torture that she was compelled by the circumstances created by him to commit suicide. I hod that the deceased die of ingestion of poison and her death was not a natural death. I hold that the the accused abetted commission of suicide by the deceased by subjecting her to torture, if he himself did not administer the poison to the deceased. The facts relied upon by the Court are corroborated by documents exhibited in this case as well as medical evidence adduced in this case. Hon'ble S.C. in Bhupinder Singh v. State of Punjab AIR 1988 1011 observed that the poison murder cases are not to be kept outside the rule of circumstantial evidence. The aforesaid ruling, mutatis mutandis may also be applied to the case of suicide by poisoning as death in both the cases may occur on account of poisoning albeit even if it be a suicide case. Therefore, all the four points are decided infavour of the prosecution and against the accused. Hence, it is,

O R D E R E D

that the accused Soumu Deb is found guilty and convicted for the offence under Secs.498A/306 I.P.C. His bail bond is cancelled and he is taken into Judicial Custody. Fix 09.04.2002 for examination of the accused u/Sec. 235(2) of the Cr.P.C. on the question sentence. Issue custody warrant accordingly.

( H. Singh )

Additional Sessions Judge,

Fast Track 1st Court, Asansol.

09-04-2002 Examination of the accused u/Sec.235(2) of the Cr.P.C. on the question of sentence:-

The accused Soumu Deb is produced from Judicial Custody after his conviction on 05-04-2002. The convict on being asked what he wants to submit on the question of sentence, submits that he is innocent and the real accused persons who committed tortures upon Nupur have been let off. At this, he is reminded that Judgement of conviction has already been pronounced and that the Court is now only concerned about the question of sentence to be imposed. Thereafter, the accused submitted that his parents are dead and he is now the sole earning member of his family consisting of his wife and one two years old daughter Piyali. In the event he is sentenced, his family would be doomed.

This is no doubt a good ground to take a lenient view while imposing sentence in ordinary cases. Hon'ble Supreme Court in Kundula Bala v. State (1993) 2 SCC 684 : 1993 Cr.L.J. 1635 observed that the Courts are expected to be sensitive in cases involving crime against women. This Court can't be oblivious of the fact that the life of a helpless, dependent and woman suffering from loneliness, insomnia came to a sudden end on account of perpetual pressurising of the deceased to divorce the accused convict. Though the accused had the right to divorce the deceased and there were sufficient grounds for him to obtain divorce in a Court of law, the methodology adopted by the accused convict to achieve quick results, can never be condoned as the Constitution guarantees right to life to each and every individual including a wife, her adulterous way of life notwithstanding. In Babu Sadashiv v. State, 1986 Cr.L.J. Reduction of sentence to the period already undergone on the grounds that the accused was young having two small children, was disallowed.

Keeping in view the4 nature of the crime, the attending circumstances and the faact that the victim of crime, is the weaker sex of society, I am of view that the accused does not deserve the benefit of the provisions of Sec.4 of the Probation of Offender's Act. In my opinion, keeping in view the fact that the accused has a daughter aged about 2 years now as per his statement, a sentence of R.I. for 5 years for the offence under Sec.306 I.P.C would suffice the ends of justice with a fine of Rs.5,000/- i.d. to suffer additional S.I. for six months. Since the accused is being punished under Sec.306 I.P.C., no separate sentence for the offence u/Sec.498A I.P.C. should be passed.

Now as regards payment of compensation u/Sec.357 Cr.P.C. is concerned, I am not inclined to allow any compensation to the hypocrite parents of the deceased, who during the life time of the deceased seldom found any time to visit her at Kalyanpur Housing Estate, though they as well as the deceased resided in the Sub-Division of Asansol.

The deceased Nupur was very close to her younger sister whom she used to show injuries sustained by her and as inflicted by the accused convict in the past. This younger sister of the deceased Rakhi Bannerjee P.W.-10 used to apply ointment over the injuries sustained by the deceased on her back. I am of opinion, the Court should grant compensation to her so that when she grows up into a full fledged adult woman, the amount may be used by her either for building a good carrier for herself or to meet the expenses of her marriage. As such, it is,

O R D E R E D

that the accused Soumu Deb who was gound guilty and convicted u/Secs.498A/306 I.P.C. on 05.04.2002, is hereby sentenced to suffer S.I. for five years for the offence u/Sec.306 I.P.C. and to pay a fine of Rs.5,000/- i.d. to suffer additional S.I. for six months. The fine amount, if realised, shall be deposited by the State in the name of Rakhi Bannerjee in any fixed deposit Scheme of a nationalized Bank till she attains the age of majority and the amount shall be paid to her on her attaining majority. No separate sentence for the offence u/Sec.498A I.P.C. is passed as the said offence merges into the offence under Sec.306 I.P.C. The period of detention of the accused in Judicial Custody shall be set-off from the period of sentence imposed against the accused convict. The seized alamats, if any, shall be destroyed after the expiry of the period of appeal.

Let a certified copy of this Judgement be given to the accused convict at once. Let a copy of this Judgement be sent to the District Magistrate, Burdwan as per the provisions of Sesc.365 of the Cr.P.C.

( H. Singh )

Additional Sessions Judge,

Fast Track 1st Court, Asansol.