- (1.) SINCE both the appeals relate to same incident and cause of action the same are taken up together for consideration and disposal. The present appeal No. C.R.A. 252 of 2006, is directed against an order of conviction dated 30.03.2006 and sentence dated 31.03.2006 passed by the learned Additional Sessions Judge, Fast Track Court, Katwa, Burdwan in the Sessions Trial No. 1 of 2004 relating to Sessions case No. 57 of 2002 whereby and whereunder the two petitioners namely, Shyamal Mukherjee and Champa Mukherjee were convicted under Section 306/34 IPC and were sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs.5,000/- each, in default to suffer rigorous imprisonment for further period of six months. By same order three other accused were also convicted and sentenced as above. In a separate appeal being C.R.A. 253 of 2006 those three other petitioners, namely, Deb Kumar Bhattacharyya, Bubu Bhattacharyya and Smt. Swati Banerjee nee Bhattacharyya have also assailed the same order of conviction and sentence being co-accused. The subject matter of both these appeals being same the same are dealt with in this composite order.
(2.) THE facts leading to this case in brief are that one Smt. Monika Banerjee lodged a written complaint dated 26.12.1999 at Katwa Police Station to the effect that on 26.12.1999 Anindya Banerjee @ Kabi, her youngest son committed suicide by hanging under acute pressure of persisting tension, torture, cruelty and instigation caused by all the aforesaid five accused persons who abetted him to commit suicide. At that time the victim was a mere student of Class XII. It is further alleged that the victim fell in love with one Arpita Mukherjee, daughter of accused Shyamal Mukherjee and Smt. Champa Mukherjee. THE victim Anindya was undergoing private tuition under accused Deb Bhattacharyya in the same locality. Thus, friendship built up between the victim and the accused Bubu Bhattacharyya, son of his teacher Deb Bhattacharyya and Swati Bhattacharyya, daughter of the said Deb Bhattacharyya. Accused Deb Bhattacharyya and his daughter Swati cherished a desire for giving marriage of Bubu with said Arpita. With this object Bubu and Swati used to report to the parents of Arpita with the object of generating ill-feelings in their mind and to form adverse opinion against Anindya and with the same object they circulated slanderous remarks in the locality to tarnish the image of Anindya as a characterless person. Believing such a scandalous rumour once accused Champa Mukherjee assaulted Anindya with a slap and threatened him to break his hands and legs by inducting local lads if Anindya comes to her residence again. All the accused also engaged hired Gundas for killing Anindya and used to threat and tease him. Lastly on 13.11.1999 under the leadership of accused Bapi Mukherjee (brother of accused Shyamal), Debu, Chandu Bairagya and others, Anindya was assaulted and they claimed a fine of Rs.5,000/- from him. Under such acute pressure, physical and mental torture, cruelty and instigation the victim ultimately committed suicide. On receipt of such complaint investigation was undertaken by registering a case being Katwa P.S. Case No. 219 of 1999 dated 27.12.1999 under Section 306/34 IPC which was resulted in filing of charge-sheet against all the accused persons. After completion of trial all the accused persons were convicted and sentenced as aforesaid. Being aggrieved by and dissatisfied with such order of conviction and sentence, all the five accused persons have preferred the aforesaid appeals with the common defence that Arpita Mukherjee is a vital witness who has not been examined by the prosecution. The diary and Khata of the victim being Exhibits 2, 3 and 4 exhibited in this case to prove some incriminating materials against the accused persons was inadmissible under Section 32 of the Indian Evidence Act. The complaint was lodged 40 days after the incident but the delay has not been properly explained. Prosecution has tendered ten witnesses to prove the case of whom PWs 1 to 5 are the material witnesses testimony of whom is the basis of conviction. Of them PW 1 and 2 are the parents of victim, PW 3 is a rickshaw-puller who has been declared hostile, PW 4 is a friend of the victim and PW 5, a senior Advocate of Katwa Bar, is a family friend and seizure list witness. Other witnesses namely, PW 6, a constable who took the dead body for postmortem, PW 7, SI who hold inquest report, PW 8 is the autopsy surgeon who conducted the autopsy and PW 9 and 10 the investigating officers are formal witnesses having no personal knowledge about, alleged torture and abetment to commit suicide. Under these circumstances impugned order of conviction and sentence are liable to be set aside. Learned Lawyer for the state respondent on the contrary has refuted the argument and claimed thatout of the 10 witnesses PWs 3 and 4 are independent witnesses of whom PW 3 is an eye-witness to the incident of slapping of the deceased by the accused No. 5, Smt. Champa Mukherjee and he also heard both accused Nos. 4 and 5 abusing the deceased by saying that "can there be a rope not available to get at his (Anindya's) neck for hanging?" In fact, PWs 1 to 5 formed the sheet anchor of the prosecution case and the oral testimony of the witnesses has been corroborated by the documentary evidence namely, Khata (exhibits 3 and 4) and diary (exhibit 2) of the deceased from which it will be proved beyond reasonable doubt that the behavioral approach of all the appellants was the proximate cause of abetment of the victim to commit suicide at a very young age. The testimony of PWs 1 and 2 are sufficient to substantiate the charge which is based on their uncontroverted testimony.
(3.) ACCORDING to the prosecution the following conducts/ facts proving such abetment to commit suicide have been well-proved by the prosecution to substantiate the charge under Section 306/34, IPC. For the sake of better appreciation the same may be quoted below :- i) There was a love affair between the deceased Anindya and Arpita; ii) The appellants used to look upon the said love affairs with disdain; iii) The appellants intended to tarnish the image of the deceased in the locality by displaying him as a boy of questionable character; iv) Recovery of two Khatas and one diary of the deceased by the parents of the victim subsequent to such commission of offence has corroborated the oral testimony of the prosecution witnesses and filled up the chain of circumstances leading to abetment to commit suicide; v) The statements of the deceased recorded in his diary and khata, exhibits 2,3 and 4, speak for themselves the reason for committing suicide; vi) PW 3 who happens to be a rickshaw-puller though declined hostile has approved point No. (i) above because he used to carry the deceased Anindya to his tutorial homes since his boyhood and as such became acquainted with the said love affairs of the victim; vii) The testimony of PW 3 with regard to the incident of slapping by accused No. 5 to deceased Anindya and direct instigation by accused Nos. 4 and 5 abetting Anindya to commit suicide by hanging and noticing the deceased weeping and telling him that the deceased was driven out by accused No. 1 from his tutorial home on the issue of love affairs have gone totally unchallenged;" viii) Though PW 4, friend of the victim, in his cross-examination has expressed his helpless situation leading to inability to explain of what actually prompted the deceased to commit suicide, but he has testified that the victim used to maintain diary and khata being exhibits 2, 3 and 4 and those documents have filled up and completed the chain of circumstances which according to PW 1 led her to a firm conviction that her son has been victimized by the acts and deeds of the appellants. Therefore, according to the learned lawyer for the state respondent the learned Trial Judge has rightly convicted all these accused persons against whom the charge has been brought home and the sentence is equally proportionate to the offence committed. There is no merit in the appeal which should, therefore, be dismissed. From the rival contention of the parties the following points are now to be considered : i) Whether delay in lodging the FIR has been properly explained; ii) Whether the diary and khata of the victim being exhibits 2, 3 and 4 are admissible in evidence and can be relied upon; iii) Whether the conduct of the appellants as alleged are sufficient to hold that they have abetted the victim to commit suicide; iv) Whether the conviction and sentence under appeal are sustainable in law. ;