JUDGMENT U.B. Saha, J.
1. The State appellant, questioning the legality of the judgment and order dated 9-5-2000 passed by the learned Addl. Sessions Judge, West Tripura in case No. ST (W.T/A) 178/97, whereby and where-under the respondent-accused was acquitted from the offence and charges levelled against him under Sections 498-A/304-B, I.P.C., prefers the present appeal Under Section 378 of Cr.P.C.
2. I have heard Mr. A. Ghosh, learned Addl. PP for the State-appellant and Mr. A.C. Bhowmik, learned Counsel for the accused-respondent.
3. Filtering out the unnecessary details, the prosecution story is as follows:
The deceased-Milan, sister of the informant Samar Barman (P.W. 5) had fallen in love with the accused-respondent and as a result of the said love affairs they got married which was held in the month of December, 1996 without the consent of the family members of Milan. On 8/9th March, 1997 at about 1 O’clock at night the younger brother of Dulal, the accused-respondent, came to the house of Samar, i.e. the brother of Milan the informant, took him to the house of the accused-respondent and going there the informant saw his sister with burn injury because of setting fire on her person and grieving in pain. The deceased-Milan was taken to the hospital on that night for her treatment but even after due treatment also she could not survive as 80% burn injury was caused to her. And on 19-3-1997, Milan expired in the hospital. After the death of Milan the informant lodged a complaint to the Officer-in-charge, East Agartala, Police Station stating that he fully believes that his sister Milan was severely injured by setting fire on to her person by her husband Dulal. And as the informant was busy with his sister’s treatment he could not lodge the complaint in time.
4. On receipt of the FIR Police started investigation and on completion of the investigation, charge-sheet was submitted against the respondent-accused for his trial under Sections 498-A and 306, I.P.C.
5. The learned Chief Judicial Magistrate, West Tripura took cognizance on the basis of the police report and committed the case to the Court of Sessions Judge, West Tripura, which was subsequently been transferred to the learned Addl. Sessions Judge, West Tripura. The learned Addl. Sessions Judge framed charges against the accused-respondent under Sections 498-A/304-B, I.P.C. to which the accused-respondent pleaded not guilty and claimed to be tried.
6. In the course of trial the prosecution examined as many as 14 witnesses including P.W. Nos. 1, 5 and 6, the mother, brother and maternal aunty of the deceased-wife respectively and two Doctors and the Investigating Officer and exhibited some articles to substantiate the charges against the accused-respondent. The defence of the accused, as would appear from the record was of complete denial. The accused also did not adduce any evidence. On conclusion of the trial, the learned Addl. Sessions Judge passed the impugned judgment and order acquitting the accused-respondent from the charges levelled against him under Sections 498-A/304-B, I.P.C.
Questioning the order of acquittal passed by the learned Addl. Sessions Judge, the State-respondents preferred the instant appeal.
7. Mr. A. Ghosh, learned Addl. P.P. submitted that the learned Addl. Sessions Judge being the trial Court failed to consider the evidences and wrongly acquitted the accused-respondent from the charge levelled against him. He contended that the prosecution proved its case against the accused-respondent under Ss.498-A/304-B, I.P.C, if not then also a case is made out against the accused-respondent under Section 306, I.P.C. before the trial Court but the trial Court failed to properly appreciate the evidences on record and come to a proper decision. And in support of his contention he mainly relied upon the deposition of P.W. 1, mother of the deceased, P.W. 5 the informant, brother of the deceased, P.W. 6 the maternal aunty of the deceased and P.W. 9 the Director of Scheduled Tribe Department, Government of Tripura under whom the respondent-accused was a driver.
8. Mr. Ghosh, learned Addl. PP further contended that the learned trial Court has given more stress upon the minor contradictions and omissions which were brought into cross-examination on the prosecution witnesses, though the said omissions and contradictions, prima facie, did not affect the truthfulness of the prosecution witnesses. He also further contended that Sections 498-A and 304-B, I.P.C. has to be read in the context of Section 113-B of the Evidence Act, 1872 (in short the Evidence Act) and the Court has to presume that the death of the deceased-Milan to be a dowry death and it was open to the Court to presume further that the appellant being the husband of the deceased-wife was responsible for such death since he was present in the room where 80% burn injury was caused to the deceased-wife due to setting fire on her person. In support of his said contention he relied upon the decision of the Apex Court in the case of Shanti Devi v. State of Haryana AIR 1991 SC 1226 : 1991 Cri LJ 1713. He also contended that in view of Section 106 of the Evidence Act, it is the duty of the inmates of the matrimonial house of the deceased including the husband-accused to give a cogent explanation as to how the crime was committed and inmates of the house cannot get away by simply getting acquitted and offering no explanation. He also contended that in a case of Sections 304-B and 306, I.P.C, the burden of the prosecution is comparatively lighter than the other offences and in the instant case the inmates of the matrimonial home of deceased including her husband did not give any explanation how the crime was committed and hence the Court has no other option except to presume that the deceased was set on fire by the husband accused-respondent, which the trial Court fails. In support of the aforesaid contention he also relied and referred to a decision of the Apex Court in the case of Trimukh Maroti Kirkan v. State of Maharashtra 2007 Cri LJ 20. With the aforesaid submission, Mr. A. Ghosh, learned Addl. P.P. prays for setting aside the impugned judgment and order of acquittal and for conviction and sentence of the accused-respondent for the charge levelled against him if not under Section 306 of I.P.C. for committing an offence for abatement of suicide by his deceased-wife.
9. Mr. A.C. Bhowmik, learned Counsel appearing for the accused-respondent, on the other hand, submitted that the learned Addl. Sessions Judge rightly acquitted the accused-respondent as there being no evidence on record against the accused-respondent that he ever demanded dowry in connection with the marriage and/or harassed for such dowry and death of the deceased wife is the result of the cruelty and/or harassment by the accused-respondent in connection with dowry. He also contended that the learned trial Court rightly did not frame any charge under Section 306, I.P.C. against the accused-respondent, as there was no evidence available for doing so. He further submitted that it is evident from the evidence of the prosecution witnesses that the husband, accused-respondent and the wife, deceased were leading a peaceful life after their marriage and their relation was cordial but the cause of death of the deceased-wife is an accident of fire. In support of his aforesaid contention he mainly relied on the statements of P.W. Nos. 2, 3 and 12. He again contended that had the deceased been set on fire on her person by the accused-respondent then she would have disclosed the name of the accused-respondent either to her inmates including P.W. Nos. 1, 5, 6 and 9 or to the Doctor during the period of her treatment but she did not do so, from which it can be easily presumed that the accused-respondent is in no way involved with the said accident of fire. Rather he tried to save his wife, which will be evident from the seizure of burnt ganjee by the investigating authority.
10. Mr. Bhowmik, further submitted that in criminal trial, when two views are possible on the basis of the evidence of prosecution, there is certainly a view supporting the different version, which should be accepted by the Court. And according to him, there is no substantial materials available on record to interfere with the impugned judgment passed by the learned trial Court and, therefore, he prayed for dismissal of the appeal in its entirety.
11. To appreciate the argument of the parties it would be proper for this Court, firstly to consider what is the meaning of ‘cruelty’ and ‘dowry.’ “Cruelty,”
By Explanations (a) and (b) of Section 498-A of I.P.C. cruelty has been defined as:
(a) ‘any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or cause grave injury to danger to life, limb or health (whether mental or physical) of the woman’; or
(b) harassment of the women where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
“Dowry”dos muliers. Lat” otherwise called maritagium, or marriage goods, that which the wife brings to the husband in marriage. This word should not be founded with dowerCo. Litt 31. Wharton’s Law Lexicon.
The definition of ‘dowry’ will also be available in Section 2 of the Dowry (Prohibition) Act, 1961. In common parlance, dowry means where the husband or his relations demand valuable security from the parents and other relations of the wife after the marriage.
12. In para Nos. 11, 12 and 13 in the case of Vikram Singh v. State of Rajasthan reported in 2007 Cri LJ 1622 discussed about the definition of dowry and the same are reproduced hereunder:
11. In Satvlr Singh v. State of Punjab , the Hon’ble Apex Court considered the definition of “dowry” as defined under Section 2 of the Dowry Prohibition Act, 1961, with reference to the offence under Section 304-B of the I.P.C, and held that it should be any property or valuable security given or agreed to be given in connection with the marriage. Customary gift or payment in connection with birth of child or other ceremonies unrelated to the marriage ceremony, held, do not fall within the ambit of “dowry.”
The relevant para No. 21 of the judgment reads as under-
21. Thus, there are three occasions related to dowry. One is before the marriage, second is “at any time” after the marriage. The third occasion may appear to be an unending period. But the crucial words are “in connection with the marriage of the said parties.” This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of “dowry.” Hence the dowry mentioned in Section 304-B should be any property or valuable security given or agreed to be given in connection with the marriage.
In K. Prema S. Rao v. Yadla Srinivasa Rao , the Hon’ble Apex Court considered the definition of “dowry” in the context of offence under Section 304-A, I.P.C, along with Section 113-B of the Evidence Act and held that one of the key ingredients of the offence is that deceased must have been subjected to cruelty and harassment “in connection with the demand for dowry” shortly before her death. Para 16 of the judgment reads as under:
16. The evidence which has been found acceptable by the Courts below against accused 1 is that the cruel treatment and harassment of the deceased by him led her to commit suicide which was a death “otherwise than under normal circumstances.” To attract the provisions of Section 304-B, I.P.C., one of the main ingredients of the offence which is required to be established is that “soon before her death” she was subjected to cruelty and harassment “in connection with the demand for dowry.” There is no evidence on record to show that the land was demanded as dowry. It was given by the father to the deceased in marriage ritual as Pasupukumkuma. The harassment or cruelty meted out to the deceased by the husband after the marriage to force her to transfer the land in his name was “not in connection with any demand for dowry.” One of the main ingredients of the offence of “demand of dowry” being absent in this case, the High Court cannot be said to have committed any error in acquitting accused 1 for offence under Section 304-B, I.P.C.
In Appasaheb v. State of Maharashtra 2007 (1) Crimes 110 : AIR 2007 SC 763 (SC), their Lordships of the Hon’ble Supreme Court considered the similar point in the context of offence under Section 304-B, I.P.C, with the meaning of “dowry” as defined under Section 2 of the Dowry Prohibition Act, 1961, and held that giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. Para 9 of the judgment reads as under:
9. Two essential ingredients of Section 304-B, I.P.C., apart from others, are (i) death of woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances, and (ii) woman is subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for “dowry.” The explanation appended to Sub-section (1) of Section 304-B, I.P.C. says that “dowry” shall have the same meaning as in Section 2 of Dowry Prohibition Act, 1961.
Section 2 of Dowry Prohibition Act reads as under:
2. Definition of “dowry”.- In this Act “dowry” means any property or valuable security given or agreed to be given either directly or indirectly-
(a) by one party to a marriage to the other party to the marriage;
(b) by the parent of either party to a marriage or by any other person to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (shariat) applies.
In view of the aforesaid definition of the word “dowry” any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving or taking of properly or valuable security must have some connection with the marriage of the parties and a correction between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. It is well settled principle of interpretation of statute that if the act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning. See Union of India v. Garware Nylonds Ltd. and Chemical and Fibres of India v. Union of India . A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. The evidence adduced by the prosecution does not, therefore, show that any demand for “dowry” as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure. Since an essential ingredient of Section 304-B, I.P.C. viz. demand for dowry is not established, the conviction of the appellants cannot be sustained.
13. In para 21 of the case of Satvir Singh v. State of Punjab reported in 2001 Cri LJ 4625, the Hon’ble Apex Court also considered the definition of ‘dowry’ as defined Under Section 2 of the Dowry Prohibition Act, 1961 with reference to Section 304-B of the I.P.C. and held that it should be any property or valu able security given or agreed to be given in connection with the marriage. Customary gift or payment in connection with birth of a child or other ceremonies unrelated to the marriage ceremony, held, do not fall within the ambit of ‘dowry.’ Para 21 of the aforesaid judgment is reproduced hereinbelow:
21. Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third is “at any time” after the marriage. The third occasion may appear to be an unending period. But the crucial words are “in connection with the marriage of the said parties.” This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of “dowry.” Hence the dowry mentioned in Section 304-B should be any property or valuable security given or agreed to be given in connection with the marriage.
14. Again in K. Prema S. Rao v. Yadla Srinivasa Rao reported in 2003 Cri LJ 69, the Hon’ble Court considered the definition of ‘dowry’ in the context of offence Under Section 304-A, I.P.C. along with Section 113-B of the Evidence Act, and held that one of the key ingredients of the offence is that deceased must have been subjected to cruelty and harassment “in connection with the demand for dowry” shortly before her death.
15. The Hon’ble Supreme Court also considered the meaning of dowry as defined Under Section 2 of the Dowry Prohibition Act, 1961 in the case of Appasaheb v. State of Maharashtra wherein their Lordships held that giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential, A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. In the said Judgment, Hon’ble Apex Court also stated what should be the essential ingredients of Section 304-B, I.P.C. and stated apart from others, are within (1) death of woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances, (ii) woman is subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for ‘dowry.’
16. In para 14 in the case of Reema Aggarwal v. Anupam 2004 AIR SCW 344 : 2004 Cri LJ 892 the Apex Court discussed about the definition and term of dowry under Section 2 of the Dowry Act, which is reproduced below:
14. The definition of the term ‘dowry’ under Section 2 of the Dowry Act shows that any property or valuable security given or, “agreed to be given” either directly or indirectly by one party to the marriage to the other party to the marriage “at or before or after the marriage” as a “consideration for the marriage of the said parties” would become “dowry” punishable under the Dowry Act. Property or valuable security so as to constitute ‘dowry’ within the meaning of the Dowry Act must, therefore, be given or demanded “as consideration for the marriage.
Further, in para 18, in the case of Reema Aggarwal v. Anupam (supra) the Apex Court dealt with the concept of dowry as well as aim of the legislations introducing the provisions of Sections 498-A/304-B, I.P.C. For better appreciation the said para 18 of the aforesaid judgment is reproduced hereunder:
18. The concept of “dowry” is intermittently linked with a marriage and the provisions of the Dowry Act apply in relation to marriages. If the legality of the marriage itself is an issue further legalistic problems do arise. If the validity of the marriage itself is under legal scrutiny, the demand of dowry in respect of an invalid marriage would be legally not recognizable. Even then the purpose for which Sections 498-A and 304-B, I.P.C. and Section 113-B of the Indian Evidence Act, 1872 (for short the ‘Evidence Act‘) were introduced cannot be lost sight of. Legislations enacted with some policy to curb and alleviate some public evil rampant in society and effectuate a definite public purpose or benefit positively requires to be interpreted with certain element of realism too and not merely pedantically or hyper technically. The obvious objective was to prevent harassment to a woman who enters into a marital relationship with a person and later on, becomes a victim of the greed for money. Can a person who enters into a marital arrangement be allowed to take a shelter behind a smoke screen to contend that since there was no valid marriage the question of dowry does not arise? Such hairsplitting legalistic approach would encourage harassment to a woman over demand of money. The nomenclature ‘dowry’ does not have any magic charm written over it. It is that a label given to demand of money in relation to marital relationship. The legislative intent is clear from the fact that it is not only the husband but also his relations who are covered by Section 498-A. Legislature has taken care of children born from invalid marriages. Section 16 of the Marriage Act deals with legitimacy of children of void and voidable marriages. Can it be said that Legislature which was conscious of the social stigma attached to children of void and voidable marriages closed eyes to plight of a woman who unknowingly or unconscious of the legal consequences entered into the marital relationship. If such restricted meaning is given, it would not further the legislative intent. On the contrary, it would be against the concerned shown by the Legislature for avoiding harassment to a woman over demand of money in relation to marriages. The first exception to Section 494 has also some relevance. According to it, the offence of bigamy will not apply to “any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction.” It would be appropriate to construe the expression ‘husband’ to cover a person who enters into marital relationship and under the colour of such proclaimed or feigned status of husband subjects the woman concerned to cruelty or coerce her in any manner or for any of the purposes enumerated in the relevant provisions Section 304-B/498-A, whatever be the legitimacy of the marriage itself for the limited purpose of Sections 498-A and 304-B, I.P.C. Such an interpretation, known and recognised as purposive construction has come into play in a case of this nature. The absence of a definition of ‘husband’ to specifically include such per-sons who contract marriages ostensibly and cohabitate with such woman, in the purported exercise of his role and status as ‘husband’ is no ground to exclude them from the purview of Section 304-B or 498-A, I.P.C. viewed in the context of the very object and aim of the legislations introducing those provisions.
17. It would be the duty of this Court to see whether the ingredients of cruelty as well as dowry are present in the evidence of prosecution witnesses or not. Therefore, for better appreciation of the prosecution witnesses namely, P.Ws. 1, 5, 6 and 9, whose statements are relied upon by Mr. A. Ghosh, learned Addl. P.P. to apprehend the charges proved against the accused, it is necessary to render the salient portion of the evidence of the prosecution witnesses:
18. Smt. Bina Barman, mother of the deceased-Milan Barman, P.W. 1, stated in her deposition that Milan was murdered by her husband 2 1/2 years back by setting her on fire just after three or four months of her marriage. As she used to maintain the family of P.W. 1 even after her marriage by way of making payment of Rs. 300 to 400 per month and for which she was also tortured by her husband, Dulal and Dulal is a habitual drunker and on being drunk he used to assault his wife, Milan. She also stated that in the Service Book of Milan, she was appointed as nominee in place of her. As Milan refused to do so, she was regularly assaulted by Dulal. She also stated that Milan had a decent amount in her Savings Account. Accused-Dulal compelled her to withdraw the said amount and with the said amount he purchased many valuable things for his family. On the night of incident at about 1 a.m. younger brother of Dulal named Babul came to her house and informed her son, Samar that her daughter. Milan, suddenly fell ill and vomiting. Her son was also requested to visit their house with his auto rickshaw and accordingly her son went to the house of the accused person. On return from the house of Dulal, she was informed by her son that Milan has been set on fire and has been admitted in the GB hospital and accordingly she visited the GB hospital, but the family members of the accused person did not allow her to talk her daughter on the pretext that her daughter may be infected and after 10 days she succumbed to her injuries and while her daughter was in hospital, she was not allowed to talk with her daughter by the family members of the accused person. Finally, she stated in her statement that except, the breast portion, entire body of Milan and her back portion was found to be injured in a round shape and she apprehended that the accused person might be poured acid on her back portion.
In cross she stated that she did not mention the name of the accused-Dulal. She also did not state to the I.O. that her daughter used to pay Rs. 300 to 400 per month. She also stated in her cross-examination, Milan was carried to the hospital by her son, Dulal and his other family members and they regularly visited hospital till the death of Milan and Dulal and his family members purchased the required medicines for Milan. She did not visit the maternal house of Milan, but visited the hospital to see Milan but could not talk with her as the house inmates of the accused person used to surround her.
19. Samar Barman, the informant brother of Milan, P.W. 5 stated in his deposition that Milan is his younger sister and she fell in love with Dulal. They married without their consent. After marriage, Dulal started torturing his sister relating to financial matters. He also stated before marriage of Millan, she appointed her mother as her nominee and Dulal created pressure for changing such nominee and relating to this Dulal used to torture his sister. His sister was an employee of Indian Airline. Prior to marriage she used to maintain her family and after marriage also his sister used to render financial assistance to his mother and she used to pay the said amount to her mother against the consent and Will of her husband. Relating to this accused, Dulal used to torture his sister. He also stated on the night of 8-3-1997 younger brother of Dulal, namely Babul came to his house at about 12.00/1.00 hour and informed that his sister was vomitting in their house and requested him to visit their house with his auto rickshaw after reaching at the house of Dulal. he found his sister in injured condition. Her body was badly burned. Seeing the same, he requested them to shift his sister to the hospital. Initially they were not inclined to send her to hospital, but ultimately after his persuasion, his sister was taken to hospital by his auto rickshaw. At the time of taking her to hospital accused-Dulal and inmates of the house also accompanied her. She was treated in the hospital for about 10 days and thereafter on 19-3-1997 she succumbed to her injuries. After the death of his sister, he lodged Ezahar in the East Agartala P.S., which was scribed by one of his neighbours. He also stated that his sister did not tell him how she sustained burnt injury at the time of his first meeting in the house of the accused. She also did not say anything on the way to hospital or at the time of admission. In cross-examination, he stated that he did not mention in His Ezahar nor even disclosed to the I.O. at the time of recording of his statement that his sister used to pay some money to his mother and relating to this she was assaulted by the accused-person and also did not mention that accused-person created pressure on his sister for changing nomination in her Service Book and relating to this his sister was assaulted by the accused person. He also stated in his cross-examination that relating to the torture on his sister by the accused person, there was no meeting and also they did not inform police or any other authority regarding torture on his sister by Dulal. In his cross-examination, he also stated that during the period of treatment of Milan, they did not inform the police or Medical Officer under whom his sister was treated about their apprehension that Milan was setting on fire by the accused-person. He further stated that his sister was in full sense when she was admitted to the hospital.
20. Surachi Das, aunty of Milan. P.W. 6. in her deposition, stated that after hearing the incident Milan was admitted to Hospital with burnt injury, she visited the hospital but the husband of the Milan did not allow her to go closer to Milan or to talk with her on the pretext that she was attacked with infection. Subsequently, when Milan was shifted to Cabin, she again went to see Milan inside the Cabin. Dulal did not allow her to enter into the Cabin on the said pretext of infection. She, in her statement also, stated that after marriage she visited the house of Milan during that period and she told her that she was not treated properly by the accused person. She also told her that Dulal married her for money and he started hating her as there are some white spot on her body and she also stated that the accused person regularly assaulted her on being drunk. In her cross, she stated that Milan and the accused person fell in love and Milan was possessing the white spot on her body prior to her marriage.
21. Mr. R.C.M. Reddy, P.W. 9, Additional Secretary Home Department, who was Director in the Scheduled Tribes Department, Govt., of Tripura in the month of April, 1997 under whom the accused was serving as a Driver. In his deposition, he stated that he learned from his driver that his wife sustained burnt injury and has been hospitalised. He also visited the GB Hospital to see the condition of his driver’s wife. On seeing her, he found she was sustained injury on her frontal side. Her condition was critical, While he asked Dulal how his wife sustained injury, Dulal told him on the night of the incident there was quarrel between him and his wife and they did not take their night meal and at dead hour of the night he suddenly woke up his wife and found her setting on fire.
22. Dr. Dilip Kr. Debbarma, P.W. 10, Head of Department, Surgery Ward, GB Hospital, in his statement, stated that Milan was treated by him and she sustained 80% burnt injury. The patient would certainly cry for pain. In accidental fire a patient may not sustain 80% burnt injury. In his cross, he stated that in case of attempted suicide a person may sustain 80% burnt injury.
23. Dr. Ajoy Kr. Bhowmik, PW 12, Medical Officer of IGM Hospital, who conducted P.M. examination on the dead body of Milan. In his statement, he stated on examination of the dead body that he found the deceased sustaining 80% burnt injury, lungs, larynx, pericardia, liver, spleen, kidney, urinal bladder were found congested. Stomach and heart were found empty and congested. On dejection he found the deceased sustained extensive deep 3rd degree fire burnt and according to him cause of death was due to cardio respiratory failure following extensive burnt. In his cross, she stated that if a person fails to extinguish accidental fire the said person may sustain 80% burnt injury. If a person wears a synthetic saree and accidentally the said saree caught fire, she may sustain 80% burnt injury.
24. Bijan Singh, PW 2, is the seizure witness of the electric heater and one burnt ganjee, and PW 3, Ranjan Singh, is the neighbour as well as colleague of Milan who was declared hostile by the prosecution as he stated in his statement that relation between Dulal and Milan was cordial and Milan died due to burnt injury and her husband, Dulal told him that her wearing apparels caught fire from electric heater. PW 4, Hiran Chowhan was also declared hostile by the prosecution. PW 7, Subir Sarkar, neighbour of informant Samar Barman, brother of Milan and the scribe of the Ezahar. PW 8, Bhajan Debnath, who was tendered by the prosecution. PW 11, Kanai Lal Dey was also tendered. PW 13, Manaranjan Das, who was officer incharge of the G.B. TOP. on 19-3-1997 in his statement he stated that after getting information from Dr. Dibyendo Bikash Das to the effect that one Milan Barman died in the hospital with burn injury, he entered the said information in the GB Book of GB TOP and on following morning at about 9 a.m. he visited hospital and in presence of all the witnesses, prepared Inquest of the deceased Milan. PW 14, Arindam Nath, Addl. SP, South Tripura, who was DSP Central at the relevant time and the I. O. of the case, in his statement, stated that he took up investigation East Agartala PS case No. 48/97 Under Section 498A/304-B of I.P.C. He recorded the statements of PWs and on completion of the same, submitted charge sheet Under Sections 498A and 36 of the I.P.C. In his statement, he also stated that he assisted the accused, Dulal and on his interrogation Dulal disclosed to him that his wife, while boiling water accidentally caught fire and sustained burn injury.
25. The basic ingredients to attract the provisions of Section 304-B are as follows:
(1) Death of woman should be caused by burn or fatal injury or otherwise than under normal circumstances.
(2) Such death should be occurred within seven years of her marriage.
(3) She must have been subjected to cruelty or harassment by her husband or any other relative of her husband.
(4) Such cruelty or harassment should be in connection with the demand for dowry.
26. Now, if we read Sections 498A and 304-B IPC with Section 113-B of the Evidence Act conjointly then the Court is supposed to form a presumption against the husband and matrimonial relations of a deceased wife. But question is whether on presumption, the husband and matrimonial relations of the deceased wife should be treated guilty for such a heinous offence like under Section 498-A/34-B, even when no case of cruelty is meted out either by physical or mental torture for demand of dowry in the evidence. According to the Court that would not be proper, unless the prosecution establish the connection of the accused respondent with the alleged offence, nature of offence whatever may be high or heinous that itself would not connect an accused with such an offence, it is the evidence of the witnesses which would connect the accused with such an offence. It would not be proper also for the Court to come to a suspicion against the accused respondent unless prosecution evidence connects the accused with the alleged offence. If a married woman dies in an unnatural circumstances at her matrimonial home within seven years from her marriage and there are allegations of cruelty or harassment upon such married woman for or/in connection with demand of dowry by the husband or the relatives of the husband then, obviously the Court can presume such a death as dowry death. But when such allegations of cruelty and/or demand for dowry is totally absent in the evidence, in that case, it would not be proper for treating every death of married woman in her matrimonial home within seven years, as a dowry death, as the same would be injustice to the accused husband and his inmates and would send a wrong message to the society, as the accident may happen at any moment to any person including married woman in the matrimonial home and she may commit suicide for any other reason, like a sudden quarrel on account of fault of the spouse or both, or for the fault of neither of them, it may be of selfishness, boorishness, callousness and difference of opinion on the part of one of the parties except the reasons for cruelty and demand for dowry from the husband and his relatives.
27. In a criminal case mere suspicion is not enough to convict an accused, as the degree of proof required is strict than the civil proceedings. By this time it is also settled that the criminal trial is meant for doing justice to the accused, the victim and the society, so that the law and order is maintained. Court should not search the evidence of the prosecution witnesses only to punish the accused person for the charges levelled against him. It is also the duty of the Court to find out whether the accused is really involved and/or connected with the offence for which charge is levelled against him. As the duty of the Court is to see that no innocent person should be punished as well as no guilty person should be escaped without punishment. The first one is as important as the latter one. Both are important for the Court while performing its duties either under the Constitution or under any law. The Apex Court in Shivaji Sabehrao Bobade and Anr. v. State of Maharashtra , held that, in India, there is no jurisdictional limitation on the powers of the Appellate Court.
In law there are no fetters on the plenary power of the Appellate Court to review the whole evidence on which the order of acquittal is founded and, indeed, it has a duty to scrutinize the probative material de novo, informed, however, by the weighty thought that the rebuttable innocence attributed to the accused having been converted into an acquittal the homage our jurisprudence owes to individual liberty constrains the higher Court not to upset the holding without very convincing reasons and comprehensive consideration. In our view the High Court’s judgment survives this exacting standard.
28. As our entire Constitution is basically based on one word “people” the Court is also not above the people and law. The Court should not scrutinize the probative material in an easy manner in an appeal preferred by State against the order of acquittal so that the person who has been acquitted by the Trial Court should get acquittal in the hand of the Appellate Court also, as the judicial institution is also accountable to the people and society. Though in criminal jurisprudence another principle is developed, namely to pull the husk/pod to draw the seed i.e. doctrine of sifting. Thus the true evidence is to be separated from the insignificant and bulky evidence. The aforesaid view of this Court gets support from the decision of the Apex Court in the case of Dharam Das v. State of U.P. wherein the Apex Court relying the decision of the case of Harbans Singh v. State of Punjab observed that the High Court has, of course to bear in mind when sifting and appraising the evidence, the initial presumption in favour of innocence of the accused and the fact that he was acquitted by the trial Court, the presumption of innocence has to be considered to be further strengthened to some extent by virtue of the order of acquittal and then according to the obligation generally imposed on Courts of appeal, the High Court should dislodge the reasons on which the trial Court recorded the order of acquittal. This is the broad approach in such appeals.
The Apex Court in the case of Dharma Das (supra) stated that the Trial Court approached the case ignoring the basic principles that unless the exaggeration and falsehood in the evidence are on points destructive of the substance of the prosecution story, It is the Court’s duty to sift the evidence, separating truth from falsehood, and come to its conclusion about the guilt or innocence of the persons accused of the offence. Exaggeration or falsehood on points which do not touch the core of the prosecution story are not to be given undue importance, provided, of course, there is trustworthy evidence supporting the real substance and core of the prosecution case. But at the time of scrutiny of the probative material, it would be better to recall the judgment of the Apex Court in the case of State of Rajasthan v. NK The Accused wherein the Apex Court stated that “it is true that the golden thread which runs throughout the cobeweb of criminal jurisprudence as administered in India is that nine guilty may escape but one innocent should not suffer. But at the same time no guilty should escape unpunished once the guilt has been proved to hilt. An unmerited acquittal does no good to the society. If the prosecution has succeeded in making out a convincing case for recording a finding as to the accused being guilty, the Court should not lean in favour of acquittal by giving weight to irrelevant or insignificant circumstances or by resorting to technicalities or by assuming of doubts and giving benefit thereof where none exists. As doubt understood in a criminal jurisprudence, has to be a reasonable doubt and not an excuse for a finding in favour of acquittal.”
The aforesaid principle of golden thread as discussed in the case of State of Rajasthan (supra) has also been taken care of by the Apex Court in the case of State of H.P. v. Asha Ram .
However, if there is slightest doubt in the mind of the Court after going through the evidence regarding involvement of the accused in the offence for which he has been tried then it should be the duty of the Court to acquit the accused of the charge levelled against him.
29. From the prosecution evidence it appears that no case of extreme cruelty is meted out and there is no demand for dowry either by the husband accused respondent or from his inmates and also there is no evidence that at any point of time the accused respondent and/or his relations tortured and/or caused grievous injury and/or harassment to the deceased Milan from which a reasonable person can come to a conclusion that the accused respondent Is in any way involved with the offence under Sections 498-Aand 304-B IPC, rather it will be evident from the depositions of PW Nos. 2 and 3 that after the marriage both the deceased Milan and the accused respondent were leading cordial and peaceful life till the victim wife died. In the deposition of PW Nos. 1, 5 and 6 though made some allegation against the accused respondent, inter alia, that he made pressure to deceased Milan for changing the nominees in favour of him in place of her mother, PW-1 in the service book but, the same was not stated before the I.O., by those prosecution witnesses, therefore, the said statements cannot be treated as evidence, as the same is material development and on the basis of the said developed statement, an accused, like the respondent, cannot be convicted. The aforesaid three prosecution witnesses also stated in their deposition that they were not allowed to talk with Milan in the hospital at the time of her treatment by the accused Dulal as well as by his relation. But the same was not disclosed either to the Doctor or to the Police by those witnesses at any time. Rather it appears from the evidence of PW Nos. 1 and 5 i.e. the mother and brother of the deceased Milan that the accused Dulal and his family members were regularly visiting the hospital till the death of Milan and they also purchased the required medicines for treatment of Milan. It also appears from the evidence of PW Nos. 1, 5 and 6 and other witnesses that marriage of Milan and accused respondent is out of their love affairs without the consent of PW Nos. 1 and 5. As the PW Nos. 1, 2 and 5 did not inform the Police and Doctor, it can be easily presumed the said statements are nothing but subsequent development only to implicate the accused respondent. Even the PW 9 Mr. Reddy, the Additional Secretary (Home), also did not say anything against the accused respondent except the statement, inter alia, that Dulal told him on the night of the incident that there was a quarrel between Dulal and his deceased wife, Milan. Every quarrel may not be treated as cruelty but every cruelty can be considered as quarrel. The said quarrel may be one of the reasons, among other reasons, like a sudden quarrel on account of fault of the spouse or both, or for the fault of neither of them, it may be of selfishness, boorishness, callousness and difference of opinion on the part of the one of the parties except the reasons for cruelty and demand for dowry from the husband and his relatives. If anybody commits suicide, then that cannot be treated as matrimonial offence, It also appears from the prosecution evidence that the deceased Milan though were in the hospital about 10 days did not divulge the name of the accused Dulal or her maternal inmates either to her mother PW1 and brother PW-5 or to the Doctors or any of the prosecution witnesses. Had the accused or his inmates was involved with the offence then she would have divulge their name to her relations like PW-1, PW-5 and PW-6 before her death, as every human being wants that the person who caused the injury to her should be punished. Therefore, from the aforesaid facts also a reasonable person can come to a conclusion that the accused husband Dulal is in no way involved with the offence for which charge is levelled against him. Had he not been innocent he would have abscond just after the incident, he would not have all the time in the hospital near to his injured wife for her treatment.
30. PW 10. the Doctor Dilipkumar Debbarma, in his chief stated nothing regarding the condition of the deceased Milan while she was in the hospital except the Statement to the effect that if any person sustains 80% burn injury the patient will certainly cry for pain and in any accidental fire a patient may not sustain 80% burn injury. In his cross, he stated that in accidental fire even the patient wore synthetic saree she would not sustain 80% burn injury as because the patient will try to extinguish the fire and in the case of attempted suicide the person may sustain 80% burn injury and he also stated that he did not issue any certificate to the effect that the patient sustained 80% burn injury though the patient was treated in his ward in GB Hospital.
31. PW 12, Dr. Ajoy Kr. Bhowmik who holds post mortem examination, in his chief stated that the cause of death, in his opinion was due to cardio respiratory failure following extensive burn. And in his cross, he specifically stated that if a person fails to extinguish accidental fire the said person may sustain 80% burn injury. And if a person wears a synthetic saree and accidentally the said saree caught fire she may sustain 80% burn injury.
32. It appears from the evidence of the aforesaid two Doctors that their opinions are contradicting each other, while they are expressing their opinion, particularly the percentage of burn injury of a person wearing synthetic saree when failed to extinguish the said saree caught fire.
33. In the instant case, it is also evident from the chief of PW 3, colleague of deceased Milan and neighbour of accused Dulal that the relation between Dulal and Milan was cordial and Dulal told him that Milan’s wearing apparel caught fire from electric heater. Though the said PW 3 was declared hostile by the prosecution, his aforesaid statement is not challenged.
34. Now, question remains as to whether the accused respondent can be convicted under Section 306 of IPC while there is no case made out against him under Sections 498-A and 304-B IPC from the evidence of prosecution witnesses. According to this Court, though the Police framed charge sheet against the accused respondent under Sections 498A and 306 IPC but the learned Additional Sessions Judge framed charge against the accused respondent under Section 498-A and 304-B, the prosecution did not raise its voice for addition of charge under Section 306 IPC against the accused person either after framing of charges or before examination of the witnesses in the trial by way of revision. Now, in the appeal the prayer for conviction under Section 306 to the accused respondent cannot be sustained, moreso, there is also no evidence available against the accused for abetment of committing suicide by Milan, hence, Court cannot pass an order of conviction against the husband accused respondent.
35. While dealing with a case of acquittal it is well known that the High Court shall not ordinarily overturn the judgment if two views are possible. The relevant paragraph in Samghaji Hariba Patil v. State of Karnataka 2007 Cri LJ 36 is reproduced below:
17. We have noticed hereinbefore that the High Court has taken a contrary view. Had the High Court been the first Court, probably its view could have been upheld but it was dealing with a judgment of acquittal. We have taken notice of the depositions of the main prosecution witnesses only to show that the view of the learned Trial Judge cannot be said to be perverse or the same was not possible to be taken. While dealing with a case of acquittal, it is well known, the High Court shall not ordinarily overturn a judgment if two views are possible.
36. In Venkata Subbarao v. State represented by Inspector of Police A.P. 2007 Cri LJ 754 also observed in para 30 as follows:
30. In Kalyan Singh v. State of Maharashtra 2006 (12) SCALE 577 this Court has held:
The High Court while dealing with the matter, in our considered opinion, failed to apply the proper tests in deciding a case where a judgment of acquittal has been recorded. The views of the learned Trial Judge cannot be said to be wholly unsustainable. It is now well known that if two views are possible, the Appellate Court shall not ordinarily interfere with the judgment of acquittal. We do not, however, mean to lay down the law that the High Court, in a case where a judgment of acquittal is in question, would not go into the evidence brought on records by the prosecution or by the State but we would like to point out that even if the High Court reversed the judgment of acquittal recorded by the Trial Court, it is incumbent on the High Court to arrive at the conclusion that no two views are possible.
From the aforesaid facts and circumstances, this Court is of the opinion that the learned Trial Court, after appreciating the entire prosecution evidence, rightly recorded the finding that there is no demand of dowry in connection with the marriage between the accused Dulal and deceased Milan and there is also no evidence of cruelty for establishing the charge under Section 498A and acquitted the accused from the charge levelled against him. From the evidence available, two views are possible in the instant case, one is, the accused may commit the offence for which the charge has been levelled against him and another is, the accused may not commit the offence for which the charge has been levelled against him and he is totally innocent and victim of situation. Therefore, after going through the findings of the learned Addl. Sessions Judge, submission of learned Counsel appearing in the matter and the law reports cited by them, this Court is of the considered view that the learned Addl. Sessions Judge has rightly arrived at the findings that the accused Dulal is not involved in any way with the charge levelled against him and, accordingly, acquitted from the charge/offence under Sections 498A and 304-B IPC. Therefore, this Court is of the opinion that this is not a fit case where the appellate Court should interfere with the judgment and order of acquittal dated 9-5-2000 passed by the leaned Addl. Sessions Judge, West Trlpura.
37. Accordingly, the appeal, being devoid of merit, is dismissed.