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2000 DIGILAW 229 (GAU)

Bhanumati Acharjee v. State of Assam

2000-06-30

P.G.AGARWAL

body2000
This criminal appeal is directed against the judgment and order dated 29.11.96 passed by the learned Sessions Judge, Cachar, Silchar in Sessions Case No. 113/1994 whereby the accused-appellants were convicted under section 304B/34 IPC and sentenced to undergo RI for a period of 10 years. 2. Heard Mr. JM Choudhury, learned Senior Advocate for the appellants and the learned Public Prosecutor, Assam. 3. This is yet another case where a young bride was sacrificed at the altar of dowry. Shampa Acharjee, an educated lady was given in marriage to accused-appellant Shantanu. The marriage was solemnised on 13th March, 1991. Both the parties were Hindu and according to their customs and belief, marriage ceremony is a sacred and solemn occasion where the bridegroom accepts the bride as his wife assuring her protection for the whole life. It is also believed that the marriage has been ordained in the heaven. Although there is no scope to look for worldly considerations on such occasion, the other accused-appellant Sujit Acharjee, brother of the bridegroom, however, insisted at the time of marriage that unless a colour TV is provided along with the bride, she is not acceptable to them and the marriage cannot be solemnised. Placed in such situation, the family members of the bride however managed a black and white portable TV and assured better one after the marriage ceremony. The marriage ceremony was, thereafter, solemnized and the young bride went to her husband's place but there was no end to her miseries she was abused and taunted for not bringing quality as well as quantity dowry and on 6th October, 1992, on the day of' Vijaya Dasami'. when as per Hindu Mythology the goodness scores victory over 'evil', the young bride of 1 and 1-/12 year's old marriage suffered burn injuries to the extent of 95% at her matrimonial house. She was removed to a hospital where she succumbed to the injuries, thereby putting an end to all her miseries in this worldly life. 4. Shantanu Acharjee, husband of the deceased, Smti Bhanumati Acharjee, mother-in-law and Sujit Acharjee, brother-in-law of the deceased were tried in Sessions Case No.l 13/1994. During trial prosecution examined as many as 12 witnesses and the defence examined 1 witness and on conclusion of the trial, learned Sessions Judge convicted all the three accused-appellants under section 304B/34 IPC and sentenced each of them to undergo RI for 10 years. During trial prosecution examined as many as 12 witnesses and the defence examined 1 witness and on conclusion of the trial, learned Sessions Judge convicted all the three accused-appellants under section 304B/34 IPC and sentenced each of them to undergo RI for 10 years. Hence the present appeal. 5. Heard Mr. JM Choudhury, learned Senior Advocate for the petitioner and learned Public Prosecutor. 6. The appellants have filed a Death Certificate No. 49504 issued by the competent authority to show that one of the appellant, namely, Bhanumati Acharjee, mother-in-law of the deceased has died during the pendency of the appeal, i.e. on 15.11.99. Hence the case against the said Bhanumati Acharjee stands abated. 7. In the present case, there is overwhelming evidence on record to show that Shampa Acharjee died as a result of burn injuries sustained by her in the house of her husband on 6.10.92. PW 9 Dr. KK Chakraborty, Assistant Professor of Forensic Medicine, Silchar Medical College Hospital, who held the autopsy over the dead body, found dermo epidermal burn injury present on the whole body except parietal areas of both side of the scalp and the parienium. The burn injury was about 95%. The Doctor also found the following injuries: (1) Abrasion on the lower leg in inner surface measuring 2 x 1/4 cm. (2) Lacerated injury on the occipital area of the scalp right sided measuring 4 x 1 x 1 cm. Margins of the wound were irregular and vertically placed. (3) Contusion on the occipital area of the scalp 3 cm lateral to the injury No. 2 measuring 3 x 2 cm. (4) Contusion on the right left side of the occipital area measuring 2x2 cm. Scalp and cranium scalp as described in Injury Nos 2, 3 and 4. On incision, contusion present on the left parietal area of the scalp in the inner surface measuring 3x1 cm placed vertically. The inner surface of the occipital area of the scalp contused. Membrane congested and brain also congested. In the opinion of the Doctor the death was due to shock as a result of ante mortem burn injuries. 8. In this case there is no dispute at the Bar that Smti Shampa died within 1-1/2 years of marriage in unnatural circumstances due to burn injuries sustained by her. Membrane congested and brain also congested. In the opinion of the Doctor the death was due to shock as a result of ante mortem burn injuries. 8. In this case there is no dispute at the Bar that Smti Shampa died within 1-1/2 years of marriage in unnatural circumstances due to burn injuries sustained by her. An attempt was made from the side of the husband that this is a case of suicide but the existence of, as many as, 4 Nos of injuries on the person of the deceased, as stated above, rules out the possibility of suicide. The injury on the parietal area of the scalp was deep enough causing contusion. Moreover, the Doctor has stated that kerosene smell was coming out from the body. There is absolutely no reason on the part of the young wife to commit suicide in such manner and the materials and evidence on record clearly show that this is a case of gruesome murder of an young wife by barbaric process of pouring kerosene oil over her body and set her on fire. It may be mentioned here that even suicide is included in the definition of death under unnatural circumstances. In the case of Shanti vs. State of Haryana, (1991) 1 SCC 371 , the Apex Court observed: "But even assuming that it is a case of suicide even then it would be death which had occurred in unnatural circumstances. Even in such a case section 304B is attracted." 9. The post-crime conduct of the appellant Shantanu and Sujit clearly indicates c that this is not a case of suicide. On hearing the quail of Shampa, Sabita Debnath, PW1, Bijoy Sharma, PW 2 and Dhananjoy Debnath, PW5, who are all neighbours, rushed to the house of the accused persons and they found Shampa lying on the ground almost in burning condition and she asked for water. PW 2 has stated that he found Shantanu sitting on the other room of the same house and the PW 2 thereafter asked the appellant Sujit to help him in wrapping the injured with banana d leaf thereafter somebody brought an auto rickshaw and they removed the injured to the hospital. PW 2 has stated that he found Shantanu sitting on the other room of the same house and the PW 2 thereafter asked the appellant Sujit to help him in wrapping the injured with banana d leaf thereafter somebody brought an auto rickshaw and they removed the injured to the hospital. The conduct of the two appellants clearly show that this is not a case of suicide and they had even no remorse and they were sitting pretty while their near and dear one was burning. The occurrence took place at 3.00 PM. 10. Admittedly there is no eye witness to depose as to how the young lady was set on fire. The occurrence took place in the house of the accused-appellant and as such presence of other witnesses at the relevant time is not expected. The only eye witness was the victim who is dead and gone'. The witness have stated that she was not in a position to speak. However, the defence has examined one DW 1 who was an inmates of the hospital and she comes out with the story that on her asking the deceased told her that she herself set fire on her body. The evidence of DW 1 was not accepted by the trial Court for the reasons given in the judgment. I also find that no reliance can be placed on her evidence. In this case, the appellants had also produced certain documents Exts A/1, A/2, A/3 and A/4 alleged to have been written by the deceased to her brother and sister-in-law etc etc to show that at no point of time she spoke about any maltreatment at her husband's place. The Court found that the very origin of the letters is doubtful and the defence has not disclosed as to how they came to possess such letters when letters were written by the deceased and addressed to the prosecution witnesses. 11. Learned counsel for the appellant has submitted that in the present case there is no evidence to draw presumption under section 113A/113B of the Evidence Act as the prosecution has failed to establish that soon before her death the deceased was subjected to cruelty or harassment by the appellants in connection with any demand or dowry. 11. Learned counsel for the appellant has submitted that in the present case there is no evidence to draw presumption under section 113A/113B of the Evidence Act as the prosecution has failed to establish that soon before her death the deceased was subjected to cruelty or harassment by the appellants in connection with any demand or dowry. In support of the above submission, the appellants have placed reliance on a decision of the Apex Court in the case of Shyam Lal vs. State of Haryana, AIR 1997 SC 1873 . The Apex Court observed: "That the death of Neelam Rani took place within seven years of her marriage though the precise date of her marriage is not in evidence. (It is admitted by both sides that her marriage was in the year 1983). The second premise that death was caused by burns is a factum which has not been disputed even by the appellant himself. In order to establish the third ingredient that 'soon before her death, she was subjected to cruelty or harassment for or in connection with demand for dowry, a plea is made to resort to the legal presumption envisaged in section 113B of the Evidence Act. It reads as under : 113B. Presumption as to dowry death. When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. It is imperative, for invoking the aforesaid legal presumption to prove that soon before her death she was subjected to such cruelty or harassment. In the absence of any such evidence it is not permissible to take recourse to the-legal presumption envisaged in section 113B of the evidence Act. That rule of evidence is prescribed in law to obviate the prosecution of the difficulty to further prove mat the offence was perpetrated by the husband, as then it would be the burden of the accused to rebut the presumption." 12. The facts of the present case are altogether different from the case of Shyamlal (supra). That rule of evidence is prescribed in law to obviate the prosecution of the difficulty to further prove mat the offence was perpetrated by the husband, as then it would be the burden of the accused to rebut the presumption." 12. The facts of the present case are altogether different from the case of Shyamlal (supra). In the instant case when the marriage ceremony was going to be solemnised there was a demand for dowry and the appellants even threatened to stop further proceedings of the marriage unless their demand for dowry, i.e. at colour TV is met then and there. The helpless family members of the bride somehow arranged a black and white TV and assured to give better one later on. The matter did not stop there. The young bride was subjected to harassment, abused and taunted for bringing less and poor quality of dowry. Thereafter, the appellant Sujit asked for another sum of Rs. 20,000 allegedly required for acquiring a job for himself. The money could not be arranged or paid. There upon the ornaments of the deceased were taken by him and mortgaged to a Kabuliwala for Rs. 15,000. The said Kabuliwala has been examined as PW 10. Baktiar Khan, PW 10 has deposed that accused Shantanu took a loan of Rs. 15,000 from him in the year 1992 for which he placed two gold bangles and one gold chain as security for repayment. After the death of the deceased police seized those gold ornaments from him vide Ext 9. There is no dispute in this case that the seized ornaments belong to the deceased. It is submitted that the ornaments were not sold but mortgaged only for the purpose of collecting money in order to procure a job for accused Sujit. Mortgaging the ornaments of a newly wed bride is definitely an act of harassment while the appellants failed to obtain any further money from the family members of the deceased in view of their pecuniary condition, they come up with the idea of realising the money by selling/mortgaging the ornaments of the deceased. This is a simple case of ingenuity of human mind to inflict the mental torture on the young wife. The facts of the present case are altogether different from the allegations made in Shyamlal (supra). This is a simple case of ingenuity of human mind to inflict the mental torture on the young wife. The facts of the present case are altogether different from the allegations made in Shyamlal (supra). The materials on record show that from the time of marriage ceremony till her death the deceased was harassed for dowry or demand of dowry. No definite time frame can be fixed with the word 'soon before the death' used in section 304B IPC and should be construed as 3 months or one month or even 3 days prior to the occurrence. 13. The offence of cruelty under section 498A/304B IPC is a continuing one and each case depends on the facts and circumstances established in that case only. There cannot be any question of fixed time frame. It can not be said that if the last act of harassment is not committed within 3 days or 5 days of the occurrence no offence under section 304B IPC is made out considering the materials available on record. 'Dowry' has been defined in section 2 of the Dowry Prohibition Act and it has been held in the case of State of Himachal Pradesh vs. Nikkuram, AIR 1996 SC 67 : "Even if the demand is long after the marriage, the same could constitute dowry, if other requirements of section 304B IPC are satisfied." 14. On judging the evidence and circumstances of the case, it is seen that the motive for gruesome murder was that the deceased, who did not bring sufficient dowry may be eliminated and replaced by another young woman along with more dowry. There is clear and cogent evidence in this regard and there is d absolutely no reason to doubt the same. Therefore, the prosecution has established that the appellants have committed an offence punishable under section 304B IPC beyond all reasonable doubt. There is no merit in this appeal, and accordingly this appeal is dismissed.