Page 1 of 23 HIGH COURT OF TRIPURA AGARTALA CRL.A.(J) NO.35 OF 2018 Sri Biswajit Bhowmik S/o Shri Bimal Bhowmik Resident of Vill-34 Card, East Masli, P.S.-Manu, Dhalai Tripura ......... Appellants Versus State of Tripura ........ Respondents
For Appellant(s) : Mr. Samar Das, Adv. For Respondent(s) : Mr. A. Roy Barman, Addl. P.P. Date of hearing & delivery of Judgment : 01.04.2019 Whether fit for reporting : YES. HON'BLE MR. JUSTICE ARINDAM LODH JUDGEMENT AND ORDER(ORAL)
The present appeal is directed against the Judgment of conviction and sentence dated 19.05.2018 passed in Sessions Trial 64(U/K) of 2015, by the learned Sessions Judge, Unakoti Judicial District, Kailashahar, whereby the appellant was sentenced to suffer rigorous imprisonment for two years and a fine of Rs.10,000/- with a default stipulation for the offence under Section 498A of IPC and also sentenced him to suffer rigorous imprisonment for 8 years for commission of an offence under Section 304B of IPC.
2) Heard Mr. Samar Das, learned counsel appearing for the appellant as well as Mr. A. Roy Barman, learned Addl. P.P., appearing for the State-respondent.
3) Prosecution case, as encompassed from the FIR is that one Anima Das lodged a complaint with the O/C, Manu P.S. on 16.03.2015, that her daughter Ranjita Das was given in marriage with the appellant Biswajit Bhowmik of East Machli on 24th Sravana, 1421 BS as per Hindu rites and customs. After marriage her daughter was taken to her in-laws‟ house. They started to live peacefully but after one month thereafter her daughter was subjected to physical and mental torture on demand of Rs.50,000/- as dowry by her in-laws. Her daughter informed them about the torture over telephone and told that if they failed to pay the said sum of Rs.50,000/-, then, she would be killed. Under that circumstance, the complainant being the mother paid Rs.50,000/- in cash to her son-in-law in presence of other members of his house, but, even after that the in-laws of her daughter pressurized her to pay again a sum of Rs.50,000/- which they also paid to the appellant on 1st Pousha. It was further stated that during that time her daughter was 7 months pregnant. She has further complained that the appellant had illicit relation with another Chakma lady and for that, he used to return home at dead hour of night and when her daughter tried to protest, the appellant used to beat her black and blue. Thereafter, on 23rd Pousha they brought her daughter to their home and during that time her daughter unfolded every episode of torture. However, on 27th Pousha they again sent their daughter back to her in-laws‟ house, but her in-laws continued torturing her physically as well as mentally. On 15.03.2015 at about 8 A.M., the in-laws of her house informed them that her daughter was admitted in Manu hospital in serious condition and requested them to see their daughter. Accordingly, she and her husband went to Manuhospital and found their daughter lying dead in the morgue of the hospital. On removal of the clothes from her body, they found injury marks on neck and on other different parts of the body and they could understand that their daughter was murdered by her husband and her in-laws.
4) On the basis of this written ejahar, the Officer-in- Charge of the police station registered a case under Section 304B of IPC and subsequently, after investigation, the charge-sheet was submitted by investigating officer against the accused-appellant under Section 304B/306 of IPC.
5) Cognizance of the offence was taken by the learned Sub-Divisional Judicial Magistrate, Longtharai Valley and after exhausting all procedures, committed the case to the Court of learned Sessions Judge.
6) After perusal of the police report, the learned Sessions Judge framed the following charges:-
“Firstly:- That, you being the husband of Smt. Ranjita Das on 15/3/2015 and different dates and occasions before 15/3/2015 at 34 Card, East Masli under Manu P.S. subjected said Smt. Ranjita Das to cruelty both physically and mentally by making her harassment and causing physical assault with a view to coercing her and her parents meet unlawful dowry demand for cash money and on account of failure thereof to put her into assault and abused her off and on, and thereby committed an offence punishable under section 498(A) of the Indian Penal Code and within my cognizance.
Secondly:- That, you on 15/3/2015 at any time before 0800 hours at 34 Card, East Masli under Manu P.S. committed dowry death by causing the death of Smt. Ranjita Das of your wife and thereby committed an offence punishable under Section 304(B) of the Indian Penal Code and within my cognizance.”
7) To substantiate the charge-sheet, the prosecution has examined as many as 26 witnesses. On closer of the prosecution evidence, the accused was examined under Section 313 of CrPC where the appellant denied the incriminating evidence against him and also did not adduce any evidence in his defence.
8) Mr. Samar Das, learned counsel appearing for the appellant while urging for setting aside the judgment and order of conviction and sentence has contended that the learned Trial Court while convicting and sentencing the accused-appellant under Section 498A of the IPC mainly relied upon the evidence of the related witnesses and there is no evidence to substantiate that the appellant had demanded Rs.1,00,000/- in two phases as dowry.
He further submits that evidence is absolutely absent in regard to the commission of offence under Section 304B of the IPC. The prosecution has also placed into service as many as 12 documents Exbt-1 to Exbt-12, a hand-sketch map along with index was also prepared by the investigating officer indicating the place of occurrence.
9) On perusal of the evidence, it reveals that P.W-1, P.W-4, P.W.-5, P.W.-15 and P.W.-26 are related witnesses of the deceased-wife of the appellant being the mother, father, brother and sisters respectively. To determine sustainability of conviction, in my considered opinion, the evidence of the related witnesses may be evaluated first.
10) P.W.-1, the mother, Smt. Anima Das has deposed that her daughter was given in marriage to the appellant according to Hindu rites and customs as stated above and after marriage her daughter lived happily for one month with her husband. After about one month from the date of marriage as and when she used to telephone her daughter and wanted to talk with her son-in-law i.e., the appellant herein, her daughter used to tell that her husband had not returned home till that time which might be around 11pm or 12 night and when she insisted her to tell her about the cause, she suddenly broke down and started crying and informed her that her husband was maintaining illicit relation with one Menaka Chakma of East Masli. At that time, her daughter also informed that the appellant demanded Rs.50,000/- for the purpose of vegetable business to be paid by the complainant. Hearing this information, they arranged Rs.50,000/- and she carried the amount to the house of the appellant on the 2nd month of Pousha of that year and handed over the amount to the appellant in presence of his mother. At that time, she stayed back for two days in the house of her deceased-daughter and on one night, when she was sleeping with the mother-in-law of her daughter, she suddenly woke up and found her daughter walking here and there at dark night and seeing that position she also got up with curiosity and thereafter, she found that the mother of the appellant had locked the room of her daughter with lock and key and the key was kept outside the room so as to enable her son-in-law to enter into the room at odd times of the night. When on the following day, she asked her daughter, she replied that her husband used to return home at odd hours of night. She informed the issue to the father-in-law of her daughter but to no avail. She came back to her home after staying there for about six days and at that time, she also took her daughter along with her. After about 20 days, the said witness escorted her daughter on her way back to her matrimonial home. After her return, she was assaulted by her husband for divulging the fact of his maintaining illicit relation with Menaka Chakma and returning home every night at odd time. At that time her daughter was pregnant for three months. She had paid another Rs.50,000/- with a hope of her daughter‟s peace. On day of 28th Phalguna of that year she was informed by the father-in-law of her daughter that her daughter was ill and admitted to Manu Hospital. When they rushed to Manu hospital, she was telephonically informed by the father-in- law of her daughter to wait at the Manu PS gate and they were coming by an auto and thereafter, they went to the hospital by that auto along with the father-in-law of her daughter and when they got down from the auto at Manu Hospital, the father-in-law of her daughter, Bimal Bhowmik told her that her daughter already expired and hearing that information she became unconscious and thereafter, when she regained sense, she was taken to the police station and at that time two brothers of her son-in-law were there and they did not allow her to telephone anybody. She had seen the dead body of her daughter in her matrimonial home only at the night of that day. They were not allowed to shift the dead body and it was cremated there by them. She identified the appellant in the dock.
In her cross examination, she has stated that at the time of marriage there was no demand for dowry. The information of illness of her daughter was first received telephonically by her from the father-in-law of her daughter. She lodged the FIR in the next morning. On question, she has stated that she did not mention in the FIR that her son-in-law used to return home late at night in the odd hours.
11) P.W-4, Sri Rabindra Ch. Das is the father of the deceased Ranjita Das. He has stated that one day her daughter telephoned his wife that the appellant was having illicit relationship with one Chakma lady and his daughter was demanded by her husband to arrange Rs.50,000/-. He has stated that because of the illness of his wife they could not lodge the FIR on the day itself and the FIR was lodged on the following day. Considering the overall circumstances, the said witness has stated that they suspected that their daughter was killed by the members of the matrimonial house of her daughter.
12) P.W.-15, Smt. Laxmi Das has stated that the complainant Anima Das was the sister-in-law and the deceased Ranjita Das was the daughter of Anima Das. She has stated that she was told by the mother of the deceased that Ranjita Das was tortured by her husband on demand of Rs.50,000/- initially and thereafter further amount of Rs.50,000/- was paid when the deceased was pregnant and altogether Rs.1,00,000/- was paid in two spells to the appellant. The said witness has stated that she was told by Anima Das in the hospital that they found injury marks in the abdomen, and on the throat and tongue was found lying outside the mouth.
There has been no substantial cross by the appellant.
13) P.W.-26, Smt. Aparna Rani Das was the elder sister of the deceased Ranjita Das. She has stated that the husband of her sister i.e., the appellant had illicit relationship with one Menaka Chakma and since she was raising objection to that relation, her sister was put to torture by the appellant. She has further stated that the appellant used to return home late at night in a drunken condition. The said witness was not cross- examined substantially.
14) P.W.2, is the witness of seizure of some articles of the deceased and he identified his signature to the said seizure list.
15) P.W.-3 found the deceased lying on a cot with her tongue outside of her mouth at the house of the appellant. She did not say anything about the incident.
16) P.W-6, Smt. Gita Chakraborty, is the witness of the inquest report (Exbt-4), she identified her signature on the said seizure marked as Exbt-4/1.
17) P.W-7, Bimal Debbarma, was also seizure witness of a DVD containing the video footage of inquest and post mortem of the dead body of the deceased-Ranjita Das.
18) P.W-8, is a police constable and he put his signature in the seizure list through which UBI pass book was seized marked as Exbt-5. He identified his signature in the said seizure list as Exbt-5/1.
19) P.W.9 is also a seizure witness of the seizure list containing UBI pass book. He identified his signature which is marked as Exbt-5/2.
20) P.W.10 is also witness of the seizure list, marked as Exbt-3.
21) P.W.11 is the first investigating officer who has stated that he took up the investigation after being endorsed by the Officer-in-Charge of the Police Station. He seized some articles, prepared the inquest report and arranged for post mortem examination of the deceased-Ranjita Das. He put his signature as the witness of the seizure list.
In the cross examination he has stated that the father of the deceased did not lodge any complaint against the appellant before he met him on 15.03.2015.
22) P.W.12 is the neighbour of the appellant, he only stated that his statement was recorded by SDPO of Manu P.S. In the cross examination when his attention was drawn to his statement under Section 161 of the CrPC to the effect that the appellant had illicit relation with one Menaka Chakma, he denied that he made any such statement before the investigating officer during his statement recorded under Section 161 of CrPC.
23) P.W.-13 has not stated anything and she was declared hostile.
24) P.W.14, Smt. Dipika Roy is a neighbour of the complainant i.e., the mother of the victim. She has stated that she heard from the mother of the deceased that the appellant used to torture the complainant‟s daughter mentally and appellant also used to return home at night at around 2.30 A.M and before going out from the house, the appellant used to lock the door from outside and he used to enter the house after unlocking the lock of the door. The said witness has also stated that Ranjita Das i.e., the deceased told that she was demanded Rs. 1,00,000/- and failure to payment would lead her to mental torture and ultimately, the mother of the deceased-Ranjita i.e., the complainant had arranged Rs.1,00,000/- and paid it to the appellant in two spells.
25) P.W.-16, Niranjan Nath is also a neighbour of the complainant, he has stated that he runs a grocery shop and the complainant being the mother of the deceased-Ranjita received Rs.40,000/- from him to give to the appellant for starting a business. However, the said amount was returned back to him. One day he heard that Ranjita Das died. The said witness also has stated that he was told that the appellant was maintaining a illicit relationship with one tribal lady and on that issue there was constant dispute between the husband and the wife. Nothing was yielded from his cross-examination.
26) P.W.-17, is also the neighbour of the complainant. She has stated that the appellant used to torture the deceased- Ranjita and the appellant used to return home late at night for having illicit relationship with one tribal lady. She has further stated that the mother-in-law of Ranjita also used to torture her. Once she has advised the complainant to lodge case against them. After some days she heard that Ranjita died and also heard that Ranjita was killed by her husband.
27) The statement of P.W.18, Sri Sanjay Chakma is of no substance.
28) P.W.19 Sri Pranab Bhattacharjee is the priest who performed the marriage of the appellant and the deceased Ranjita.
29) P.W.20 is the witness of the marriage. He had stated that he was the catalyst of the marriage between the bride and bridegroom.
30) P.W.21 has stated that about three years back the complainant wanted to borrow Rs.5000/- from him and, accordingly, he paid the said amount to her. Afterward it was returned back to him. He has stated that he did not know as to why the amount was taken.
31) P.W.22, Sri Alak Bhattacharjee is the Sub Divisional Police Officer who had undertaken the charge of investigation after P.W.11. He has stated that during his investigation, he recorded the statements of some of the witnesses under Section 161 of CrPC and he prima facie found that the appellant has committed offence under Section 304-B/498A/ 306 of IPC and submitted the charge-sheet accordingly.
In the cross examination, P.W.22 has stated that in his statement under Section 161 of CrPC, Sri Rabindra Ch. Das, P.W.4, the father of the deceased has not stated that he came to learn from his wife that the room of his daughter was usually being locked from outside. He has further stated that it is also not mentioned in the 161 CrPC statement of the Rabindra Ch. Das that reaching the hospital he found the dead body of his daughter and also found the ligature mark in her throat and learned that his daughter was killed by her husband. He has further stated in his cross examination that it is not mentioned in the 161 CrPC statement of Rajat Das, P.W.5 that he came to learn from his mother that his sister used to be locked in the room from outside and also he did not mention in his 161 CrPC statement that Dipika Roy, P.W.14 told to the SDPO that mother of Ranjita handed over Rs.1,00,000/- in two spells to the husband of Ranjita and he also told to the SDPO that after getting information of illness of Ranjita her parents went to the hospital and found her dead. It has further been confirmed by the SDPO in his cross examination that it is not mentioned in the statement recorded under Section 161 of CrPC, Smt. Sandhya Das, P.W.17 that she stated to the I.O that Ranjita was killed by her husband by tying a cord of sewing machine.
P.W.22 has further confirmed that it is not mentioned in the 161 statement of CrPC of Smt. Aparna Rani Das, P.W.26 that she stated to the I.O that on the previous day of her death deceased-Ranjita had told her that she was tortured by the accused-appellant on previous night.
32) P.W.23, Sri Sumanta Das is the witness who conducted the videography of the post mortem examination of the death body and he submitted the DVD disk. He identified his signature in the seizure list.
33) P.W.24, is the seizure witness of the DVD disk he also identified his signature in the said seizure list.
34) P.W.-25, Dr Monamita Das has stated that on 15.03.2015 she was posted as medical officer at Manughat CHC. On that day she conducted a post mortem examination of dead body under Manu PS GD entry No.11 dated 15.03.2015. She found that there was a brownish red colour grooved ligature mark having a maximum weight of 2 centimeter over the upper part of neck in the front side non-continues from right to left side. After the post mortem examination, she opined that the cause of death was due to asphyxia which was ante mortem hanging in nature. She prepared the report and put her signature on the said report which is marked as Exbt-12 and Exbt-12/1. More significantly, the post-mortem report(Exbt.12) does not indicate any other marks of wounds or injury so that it can be opined that the victim was subjected to torture which forced her to commit suicide. There was no sign of any old injury marks in the body of the victim so as to enable this Court to come to a finding that she was put to torture a couple of days before the date of committing suicide.
None of the prosecution witnesses, nonetheless to say, even the related witnesses have supported the version of PW-1 to a particular incident that when she along with her daughter, Ranjita returned back to the house of the appellant from the parental house, Ranjita was severely assaulted by the appellant since she had divulged the fact of his extra-matrial relationship with a tribal lady.
Thus, the evidence and relating elements of torture appeared to be vague and omnibus. The prosecution also has miserably failed to establish the fact of the involvement of the appellant with Menaka. She was neither interrogated nor was shown as a prosecution witness.
35) On consideration of the evidences and witnesses as stated above, the learned Trial Court came to the finding and recorded the sentence of guilt to the accused-appellant underSection 498A and 304B of IPC as stated above.
36) Being aggrieved by the decision of the said judgment and conviction of sentence, the appellant has preferred this appeal before this Court.
37) I have meticulously perused the evidence and materials on record which were considered by the learned Trial Court.
“The second submission of the learned counsel for the petitioner is that an offence under Section 498(A) IPC does not cover a single incident of altercation or assault between the husband and wife.
In this case, there is no allegation against the petitioner that he had demanded a colour T.V. or harassed the informant for that purpose. There is absolutely no evidence that beating or the alleged act in question was with the view to compel the informant to commit suicide. As a matter of fact, there is no evidence of PW 1 that the husband had assaulted her on any previous occasion. The witness has deposed about the single incident of assault by the husband and even if we accept the above evidence of PW 1, which is not supported by other witnesses, it does not amount to cruelty as defined under Section 489A IPC. We find that the trial court as will as the appellate court has failed to appreciate the evidence in its proper perspective. Both the Courts below also erred in holding that the single incident of alleged assault on 04-09-92 amounts to an offence under Section 498AIPC. Accordingly, we allow this revision and set aside the order of conviction and sentence entered against the accused petitioner. The accused is acquitted and set a liberty forthwith. He need to surrender to the bail bonds.”
39) In Manju Ram Kalita v. State of Assam, reported in 2010(2) GLT (SC) 27, where the Apex Court particularly in paragraphs 21 and 22 had discussed about the meaning of „cruelty‟. It is observed that petty quarrels cannot be termed as „cruelty‟ to attract the provisions of section 498A IPC, causing mental torture to the extent that it becomes unbearable may be termed as „cruelty‟ and ultimately set aside the conviction of the appellant therein under section 498A of the IPC. The learned counsel has drawn my attention to the relevant paragraphs of Manju Ram Kalita (supra) which are as under:-
“In Girdhar Shankar Tawade vs. State of Maharashtra, AIR2002 SC2078, this Court held that „cruelty‟ has to be understood having a specific statutory meaning provided in Section 498A, IPC and there should be a case of continuous state of affairs of torture by one to another.
“Cruelty” for the purpose of Section 498A, IPC is to be established in the context of Section 498A, IPC as it may be a different from other statutory provisions. It is to be determined/inferred by considering the conduct of the man, weighing the gravity or seriousness of his acts and to find out as to whether it is likely to drive the women to commit suicide etc. It is to be established that the women has been subjected to cruelty continuously/ persistently or at least in close proximity of time of lodging the complaint. Petty quarrels cannot be termed as „cruelty‟ to attract the provisions of section 498A, IPC.
Causing mental torture to the extent that it becomes unbearable may be termed as cruelty.”
40) I may gainfully refer the decision passed by a Division Bench of this Court in Durjoy Debnath alias Dulal and anr. vs. State of Tripura reported in (2017) 1 TLR 208, this Court while dealing with similar issue has observed thus in paragraph 18:-
” Before discussing their evidence, we are inclined to quote here the observation of the Apex Court made in para 48 of the sensational case of Sharad Birdhichand Sarda vs. State of Maharashtra, 91984) 4SCC 116 which reads as follows:
Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the background of which the oral statements are to be considered. All persons to whom the oral statements are said to have been made by Manu when she visited Beed for the last time, are close relatives and friends of the deceased. In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that this is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murdered and, therefore, the court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it.”
41) I have given my anxious thought to the evidence laid by the witnesses in the instant case
particularly the evidence of the related witnesses that is the parents of the deceased-Ranjita as well as her brother and sister. The complainant has stated that her daughter was subjected to physical and mental torture off and on. She has further stated that the appellant had demanded Rs.1,00,000/- for the purpose of his business which she also paid to the appellant. She has also stated that the appellant used to maintain extra-martial relationship with a tribal lady. The evidence of father, brother as well as the sisters were the representation of the statement of P.W.1, which they have been told by the complainant herein. None of the related witnesses have been able to make any statement stating specifically the date and time of torture inflicted upon the deceased. It is not the case, that they have ever lodged any complaint to any authority under the law.
42) Mr. Das, learned counsel appearing for the appellant has candidly submitted that there must be some nexus between the torture and the demand of dowry to attract the provisions of Section 498A of IPC.
43) Under the Dowry Prohibition Act, 1961, the word “dowry” defines in the manner as under:-
“Definition of ‘dowry’.- In that 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; or
b) by the parents 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 marriage in connection with the marriage of the said parties but does not include dower or mahr in the case of person to whom the Muslim Personal Law (shariat) applies.”
44) In Bachni Devi vs. State of Haryana, (2011) 4 SCC 427, the Apex Court, while interpreting the definition of „dowry‟ given in Section 2 of the Act, has held that the term is defined comprehensively to include properties of all sorts as it takes within its fold “any property or valuable security” given or agreed to be given in connection with marriage either directly or indirectly. Thus, the demand of dowry must have some connection with the marriage and the prosecution has to prove that the non-fulfillment of demand of dowry leads the accused to cause torture, either physically or mentally to drive the woman to commit suicide or to cause grave injury or danger to life to his wife.
45) Thus, I find force in the submission of the learned counsel. Section 498A is related to the demand of “dowry” which is prohibited under the Dowry Prohibition Act 1961. Even if the statements of the related witnesses are taken into account, then, it is surfaced that they have categorically stated that the demand had been made by the appellant to invest the said amount in the business purpose. The demand related to „business‟ and demand related to „dowry‟ is quite distinct. In other words, the demand relating to the purpose of business cannot not be said to be a demand of dowry.
46) It is further revealed from the cross examination of the SDPO, PW.22 that the relative witnesses and other neighbour witnesses of the complainant had exaggerated and improvised the stories of torture and demand of dowry in course of trial during their recording of evidence which they have not stated in their 161 CrPC statement.
47) Keeping in view the principles laid down in Arunava Bhowmik(supra), Manju Ram Kalita(supra) and Durjoy Debnath alias Dulal(supra) it appears to be very difficult for this Court to arrive at a specific conclusion that the deceased-Ranjita Das was subjected to torture physically and mentally for demand of dowry by the appellant and hence, according to me, the ingredients of Section 498A has not been fulfilled in the facts of the present case due to which the conviction under Section 498A cannot be sustained.
48) Now, the question remains whether the conviction and sentence passed under Section 304B of IPC is sustainable in the facts of the present case as declared by the learned Trial Court.
49) Section 304B of IPC reads as under:-
” 304B. Dowry Death.- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise then under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with , any demand for dowry, such death shall be called “dowry death” and such husband or relatives shall be deemed to have caused her death.
[ Explanation- For the purpose of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961)
2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.”
50) In order to convict an accused for the offence punishable under section 304B IPC, the following essentials must be satisfied:
i) the death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances;
ii) such death must have been occurred within seven years of her marriage;
iii) soon before her death, the women must have been subjected to cruelty or harassment by her husband or any relatives of her husband;
iv) such cruelty or harassment must be for, or in connection with, demand for dowry.
51) When the above ingredients are established by reliable and acceptable evidence, such death shall be called dowry death and such husband or his relatives shall be deemed to have been caused her death. If the above mentioned ingredients are attracted, in view of the special provision under Section 113B of the Evidence Act, 1872, the court shall presume and it shall record such fact as proved unless and until it is disproved by the accused. However, it is open to the accused to adduce such evidence for disproving such compulsory presumption as the burden is unmistakably on him to do so and he can discharge such burden by getting an answer through cross examination of the prosecution witnesses or by adducing evidence on the defence side.
To attract the provisions of Section 304(B) IPC, 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 or harassment.
52) Presumption of commission of offence under Section 304(B) is directly related to Section 113-B of the Evidence Act. A conjoint reading of both the provisions of law emerges that where the wife met with an unnatural death within seven years of marriage and had been subjected to cruelty or harassment for/or in connection with demand for dowry the court shall presume that such person has caused the dowry death. Besides, to prove the death within seven years of marriage, the prosecution has to establish that the victim was subjected to cruelty or harassment soon before her death and such cruelty or harassment was for dowry. The expression “soon before her death” has not been defined in either of the statute, therefore, in each case the Court has to analyze the facts and circumstances leading to the death of the victim and decide whether there is any proximate connection between the demand for dowry, the act of cruelty or harassment and the death.
53) “Soon before” is a relative term which is required to be considered under specific circumstance of each case and no strait jacket formula can be laid down by fixing any time limit. The term is not synonymous with the term “immediately before” and is opposite of the expression “soon after”. This word would imply that the interval should not be too long between the time of making the statement and the death. Approximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. (Reliance is placed on Kans raj Vs. State, 2000 (5) SCC 207(para-15).
54) Mere lapse of some time by itself would not provide to an accused defence, if the course of conduct relating to cruelty or harassment in connection with the dowry demand is shown to have existed earlier in time neither too late nor too stale before the date of death of the wife. The phrase “soon before her death” is an elastic expression and can refer to a period immediately before her death or within a few days or even a few weeks before it. But the legislative intent in providing such a radius of time is to emphasize the idea that her death should in all probabilities have been the aftermath of such cruelty or harassment. In other words, there should be a perceptible nexus between her death and dowry related harassment or cruelty inflicted on her. It is for the Court to decide on the facts and circumstances of each case whether the interval would be “soon before her death” (reliance is placed on Satvir Vs. the State, reported in 2001 (8) SCC 633).
55) On perusal of the deposition of P.W.1, the mother of the victim, it appears that she nowhere has stated the date and time or even the period when the appellant had demanded Rs. 50,000/- from the victim. Even if, for argument sake, if the Court believes the statement of the P.W.1 to be true, then also this Court does not find any relation that the demand was made as a matter of dowry. More specifically to be stated, the demand, if any, was made for the purpose of business. Thus, it becomes very difficult for this Court to attract the ingredients of Section 304B IPC as this Court has not been able to connect the said demand of Rs. 1,00,000/- to the fact of dowry which is prohibited by law. In furtherance thereof, there is no evidence that the victim was subjected to torture soon before her death on 15.03.2015. More so to say prosecution has failed to produce any neighbouring witness of the appellant to substantiate that Ranjita, the deceased wife was ever subjected to torture either by the appellant or any other in- laws.
56) In this nature of case, sometimes, conduct of the accused as well as other in-laws also is required to be noticed. In the instant case, the in-laws had rushed to the police station, all of them accompanied the victim to the hospital, the father-in-law informed the parents of the deceased over telephone and took them to the hospital by an auto-rickshaw.
57) On meticulous analysis of the evidence and material on record, it would be very difficult to say that the prosecution has been able to prove the case beyond a reasonable doubt.
58) Hence, this Court is inclined to set aside the order of conviction and sentence passed against the appellant under Section 304B of IPC as declared by the learned Trial Court. Accordingly, the judgment and order dated 19.05.2018, whereby the appellant was convicted and sentenced under Section 498A and 304B is set aside and quashed.
59) I have been informed that the appellant at present is in jail. So, he shall be released forthwith if not wanted in connection with any other cases. The surety is discharged accordingly.
60) In the result, the appeal is allowed. Send back the LCRs.