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2006 DIGILAW 1018 (GAU)

Rajib Banik v. State of Tripura

2006-11-21

TINLIANTHANG VAIPHEI

body2006
JUDGMENT T. Vaiphei, J. 1. I have heard Mr. A.K. Bhowmik, learned senior counsel, assisted by Mr. S. Ghosh, learned Counsel for the appellants and Mr. R.C. Debnath, learned P.P. In-Charge for the State-respondent. 2. These 2 (two) Criminal Appeals arising out the same judgment are being disposed of by this common judgment. Criminal Appeal No. 70/2006 is directed against the judgment dated 10.8.2006 passed by the learned Additional Sessions Judge, West Tripura, Agartala in Sessions Trial No. 168 (WT/A) 2004 convicting the appellants under Section 304-B IPC and sentencing them to 10 years rigorous imprisonment. The appellant in Criminal Appeal No. 76/2006 was also found guilty of the same offences in the same trial, but was not sentenced to any imprisonment as he was found to be a minor, who comes under the purview of provisions of Juvenile Justice (Care and Protection of Children) Act, 2000. 3. The case of the prosecution, in a nutshell, is that a written complaint was lodged by one Santosh Kumar Banik before the Officer In-charge, East Agartala police station on 16.3.2002 stating that his daughter Papia Banik was married to Rajib Banik as per Hindu rites and custom and that though all the demands of dowry were made by the informant at the time of marriage, the appellants started demanding afresh, after their marriage, additional dowry in the form of Yamaha motor bike and Colour TV. According to the prosecutor, the said Papia Banik (deceased) was not even allowed to visit her parents till the demands were fulfilled and this was informed by her over the telephone. Unfortunately, on 16.3.2002 at about 8.30 a.m., one Anil Choudhury informed the informant over telephone that the deceased was taken to the G.B. Hospital and that the informant, on learning the information, accompanied by Gautam Banik rushed to the G.B. Hospital where the deceased was found lying dead. It is the specific case of the prosecution that the deceased was mentally and physically tortured which resulted in her death. The aforesaid information was registered as East Agartala P.S. Case No. 53/2002 and the same was endorsed to SI. S. Purkayastha for investigation. After investigation of the case, the police, having found a prima facie case, charge-sheeted all the appellants under Section 498A/304-B IPC to face the trial. The aforesaid information was registered as East Agartala P.S. Case No. 53/2002 and the same was endorsed to SI. S. Purkayastha for investigation. After investigation of the case, the police, having found a prima facie case, charge-sheeted all the appellants under Section 498A/304-B IPC to face the trial. The case was committed to the court of Sessions Judge, West Tripura, which was eventually taken up by the learned Additional Sessions Judge, West Tripura, Agartala. 4. The learned Additional Sessions Judge framed the charges against the appellants under Section498A/304-B IPC, to which the appellants pleaded not guilty and claimed to be tried. The prosecution, in the course of trial, examined as many as 24 witnesses to bring home the charges against the appellants and also relied upon a number of exhibits such as inquest report, letter of the deceased (alleged suicide note), Hand-sketch map with index, P.M. Examination report, etc. At the conclusion of the trial, the learned Additional Sessions Judge found the appellants guilty of the charges and thereafter passed the impugned judgment of conviction and sentence. 5. Mr. A.K. Bhowmik, learned senior counsel for the appellants contends that the prosecution story was not only false but also was based on fabricated evidence inasmuch as P.W. 1, who is the informant, made several contradictory statements in respect of the demand of dowry made by the husband of the deceased or in respect of the alleged mental torture caused by the husband of the deceased to the deceased. He also submits that the manner in which the suicide note in Exhibit-2 was alleged to have been recovered would go to show that it was nothing but a planted evidence, which was done by P.W. 1 in collusion with the Medical Officer conducting the post mortem examination of the deceased. He also contends that the alleged suicide note was never compared with any admitted handwriting of the deceased though it was the bounden duty of the prosecution to prove its authenticity. When the evidence produced on behalf of the prosecution are based on contradictory evidence as well as dubious documents, according to the learned senior counsel of the appellants, the conviction of the appellants cannot be sustained in law. On the other hand, Mr. When the evidence produced on behalf of the prosecution are based on contradictory evidence as well as dubious documents, according to the learned senior counsel of the appellants, the conviction of the appellants cannot be sustained in law. On the other hand, Mr. R.C. Debnath, learned Public Prosecutor In-charge supports the impugned judgment of conviction and sentence and submits that there was no infirmity in the findings of the trial court, which warrants the interference of this Court. According to the learned Public Prosecutor In-charge the statement of P.W. 1 has been corroborated in material particulars, especially by Exbt. 2, which is the suicide note written by the deceased before she died. 6. Before proceeding further, we may refer to the provisions of Section 304-B/ 498A IPC and Section 113B of the Evidence Act, which are as follows: 304-B. Dowry death--(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than 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 relative shall be deemed to have caused her death. Explanation--For the purposes of this subsection, "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 498A. Husband or relative of husband of a woman subjecting her to cruelty--Whoever, being the husband of the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Husband or relative of husband of a woman subjecting her to cruelty--Whoever, being the husband of the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation--For the purposes of this Section, "cruelty" means- (a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental of physical) of the woman; or (b) Harassment of the woman where such harassment is with a view to coercing here 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. 113. B. 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 has 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. Explanation--For the purposes of this Section "dowry death" shall have the same meaning as in Section 304-B, of the Indian Penal Code (45 of 1860) 7. The legal position has been succinctly ummed up by the Apex Court in Harjit tingh v. State of Punjab reported in 2006 CriLJ 554, as under: By virtue of Section 304-B IPC a legal fiction has been created in the said provision to the effect that in the event it is established that soon before the death the deceased was subjected to cruelty or harassment by her husband or any of his relatives; for or in connection with any demand of dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death. From a conjoint reading of Section 304-B of the Penal Code and Section 113B of the Evidence Act, it will be apparent that a presumption arising thereunder will operate if the prosecution is able to establish the circumstances as set out in. Section 304-B of the Penal Code. 8. From a conjoint reading of Section 304-B of the Penal Code and Section 113B of the Evidence Act, it will be apparent that a presumption arising thereunder will operate if the prosecution is able to establish the circumstances as set out in. Section 304-B of the Penal Code. 8. The ingredients of Section 304-B IPC and Section 113B of the Evidence Act are thus: (i) The death of a woman was caused by any burns or bodily injury or in some circumstances which were not normal; (ii) Such death occurred within 7 years from the death of her marriage; (iii) That the victim was subjected to cruelty or harassment by her husband or any relative of her husband; (iv) Such cruelty or harassment was formed in connection with demand of dowry; and (v) It is established that such cruelty and harassment was made soon before her death. 9. In the instant case, there is no dispute at the Bar that the death of the deceased was caused under some circumstances which were not normal and that the death occurred within 7 years from the date of their marriage. The question to be determined is whether the victim was subjected to cruelty and harassment just before her death. To bring home the charges on this aspect of the matter, the prosecution relied on the evidence of P.W. 1, P.W. 2, P.W. 10 and P.W. 12 and also the alleged suicide note at Exbt. 2. It is the evidence of P.W. 1 that the deceased was his daughter and that she was married to the appellant No. 1 on 21.1.2002 as per Hindu rites and custom and that though there was no demand of dowry from the side of the husband of the deceased, he was informed by the deceased at the time of 'Phirajatra' that the appellant No. 1 had demanded one colour TV and one Yamaha motor cycle and that at that time his wife (P.W. 7) was also there. P.W. 1 further deposed that he told his daughter that he was not in a position to meet the demands and told her to wait and whereafter they kept in contact with his daughter over the telephone. P.W. 1 further deposed that he told his daughter that he was not in a position to meet the demands and told her to wait and whereafter they kept in contact with his daughter over the telephone. However, according to P.W. 1, after about a week, the deceased once again came to his house and reminded him about the demand, to which he told her that the money could not be arranged and that the same would be done as and when he could do so. P.W. 1 further deposed that the deceased informed him even after that she had been subjected to physical and mental torture in connection with the demand for dowry. The fact that the deceased was tortured by her husband for the demand of dowry was reported by her to her neighbours. It was according to P.W. 1, after about a month that the deceased died. P.W. 1 went on to depose that on 16.3.2002, one Anil Choudhury had informed him that his daughter was ill and was taken to G.B. Hospital by her father-in-law and mother-in-law and that on learning this information, his brothers Babul and Goutam at once went to the hospital and he later on proceeded to the hospital, where they found the deceased lying dead, which was around 11 a.m. According to this witness, the Inquest report was prepared by the police to which he signed as witness and after the post mortem examination was done, he took over the deadbody. P.W. 1 also testified that at the time of the post mortem examination, the deceased was wearing a 'saree' and a 'jangia' and that a piece of paper (Exbt.-2) was recovered from inside the 'jangia' by Dr. Ranjit Das, the Medical officer who conducted the post mortem examination, which contained the handwriting of the deceased. He deposed that he accordingly submitted an FIR to the police, which was written by one Mrinal Sengupta. The FIR is marked as Exbt.-3. 10. P.W. 2 is the grand father of the deceased and in his deposition, he mentioned that though there was no demand of dowry at the time of the marriage between the deceased and the appellant No. 1, the deceased subsequently in her return journey told him that the appellant No. 1 had made a demand of colour TV and a motor bike. According to him, after about 10 days the deceased came again with her husband and that her husband threatened the deceased in their house for getting the amount from her father for the purchase of bike and TV. This witness further deposed that on his query, the deceased told him that she was put to physical and mental torture for the said demand and that the deceased paid her last visit about 22/23 days ago from the date of her death. P.W. 3 is the neighbour of the informant, but his evidence are sketchy, which are not worth considering. Then comes the evidence of P.W. 4, who was the priest solemnising the marriage between appellant No. 1 and the deceased on 21.1.2002. In his deposition, this witness stated that after about 8/10 days of her marriage, while the deceased came on pleasant trip, he occasionally met her when she informed him on his query that she was not happy at her husband's house as she was tortured by her mother-in-law, husband and brother-in-law. P.W. 5 is the uncle of the informant (P.W. 1), who deposed that when he met the deceased after about a month of their marriage, on his query, she told him that she was not happy in her husband's house as her mother-in-law, husband and brother-in-law rebuked her unnecessarily in connection with their demand for colour TV and bike. At this stage, I cannot but noticed that though the foundation of the case of the prosecution i.e. the demand for dowry made by the appellants and the torture allegedly meted out to the deceased were found in the statements of P.Ws. 1, 2, 4 and 5, they are, nevertheless, first time statements in court. These facts were never stated by any of these witnesses to the police when their statements were recorded under Section161 Cr.P.C. 11. P.W. 6 deposed that she is the neighbour of the informant whose daughter was married to the appellant No. 1. She deposed that when the deceased visited her parents after about a month of their marriage, on her query about her condition, the deceased started crying saying that she was abused and tortured by her mother-in-law, husband and father-in-law in connection with the demand for colour TV and bike and that she tried to console her. She further testified that after about a month, the deceased died. She further testified that after about a month, the deceased died. This statement of P.W. 6 is also conspicuous by the absence of necessary details regarding the time, place and the circumstances in which the meeting between her and the deceased had taken place. Such omnibus statement cannot be used for corroboration of the statement of P.W. 1. Coming now to the evidence of P.W. 7, who is the mother of the deceased, it is her evidence that the deceased came to her on 'Phirayatra' and reported to her that her husband demanded a bike and a colour TV for which they were creating pressure. She deposed that they tried to make her understand about their inability to fulfil such demand. This witness went on to depose that after about 10 days, the deceased had telephoned her asking her for arranging the bike and TV as the family of the appellants were creating tremendous pressure on her and was subjected to torture by them. According to this witness, she and her husband thereafter went to the house of the deceased and talked to her mother-in-law informing her that they were poor and were unable to arrange the bike and TV and that before one day of her death, she went to the house of the deceased and found her depressed. It is her further deposition that on that day the husband of the deceased and other inmates did not speak to her and so she came back. 12. P.W. 7 further testified that before she came back, the deceased took her to the kitchen and told her that the bike and TV had to be arranged by any means even if by selling their homestead so as to give her peace of mind at the house of her in-laws. This witness also went on to depose that her daughter told her that her husband and others used to physically assaulted her besides giving mental torture and that she was not even treated like a house wife but as a maid servant and that it was on the following day that she received a telephone call from one Anil Choudhury that the deceased was admitted to G.B. Hospital. 13. 13. Interestingly, most of the aforesaid statements relating to the torture of the deceased by the appellants or of their demand for dowry made by the appellants are first time statements in court and were never mentioned in her previous statements recorded by the I.O. under Section 161 Cr. P.C. In particular, her statement in court that she visited the deceased on the date prior to her death, that the deceased took her to her kitchen and requested her to arrange the bike and TV even by selling whole was not found in her previous statement. So is her statement that the deceased was treated like a maidservant. What will be the effect of these omissions which amounts to material contradictions/improvements will be considered later on. P.W. 8 is the tenant of the appellant No. 1 from 1996-2002. Though this witness was examined on behalf of the prosecution, his statement is not helpful to the case of the prosecution. Then comes the statement of P.W. 9, who is the maternal uncle of the informant. According to this witness, he was present at the time of the marriage of the appellant No. 1 and the deceased and that after the marriage, the deceased was found depressed and as such the informant and himself went to the house of the appellant No. 1 and enquired about the reason of her depression, but she did not divulge anything. He further deposed that after about a month, he met the informant once when he was informed by him that the appellant No. 1 was using a bicycle so his family wanted a bike and TV. According to him, he advised the informant to arrange the same if possible and they accordingly fixed a date to consult the family of the appellant No. 1 on this matter, but they could not go and that in the meantime, he came to learn from the informant that the deceased died. The evidence of this witness is also conspicuous by the absence of detailed particulars and are, therefore, omnibus in nature. 14. P.W. 10 is the tenant of the appellants. This witness deposed that initially, the marriage between the appellant No. 1 and the deceased was good and that thereafter there were some quarrel between the deceased and the other inmates. He, however, deposed that he could not understand the reason for such quarrel. 14. P.W. 10 is the tenant of the appellants. This witness deposed that initially, the marriage between the appellant No. 1 and the deceased was good and that thereafter there were some quarrel between the deceased and the other inmates. He, however, deposed that he could not understand the reason for such quarrel. According to this witness, on the day of incident at about 8 a.m., the deceased suddenly appeared in his room and informed him that he had a telephone call in their house waiting for him and that after attending the telephone, he found the deceased in her bed room dressing her hair standing in front of the mirror and that after about half an hour, he heard a cry of the father of the appellant No. 1 from the first floor. He went on to depose that he found the deceased lying on the floor near the collapsible gate of the first floor and that he also found the father of the appellant No. 1 abusing his wife and the appellant No. 1 and also found the appellant No. 1 and the mother-in-law of the deceased pouring mustard oil at the feet of the deceased. The witness further testified that the father of the appellant No. 1 was abusing his wife and the appellant No. 1 by saying, "you all have killed by daughter-in-law" and that he tried to cool down the said Braja Gopal i.e. father-in-law of the deceased advising him to at once take the deceased to the G.B. Hospital. This witness stated that though he had not seen the deceased hanging, people were telling that it was a case of hanging and he confirmed the same from the appellant No. 1 that the deceased committed suicide by hanging from the ceiling fan. Though this witness did not specifically deposed that the deceased was subjected to cruelty at the hands of the appellant, his clear message is that Braja Gopal i.e. father-in-law of the deceased abused his wife and appellant No. 1 and making them responsible for the death. However, this statement was never recorded in his previous statement before the police and, therefore, such statement is first time statement in court, which can only be regarded as material omission or improvement of the case of the prosecution. 15. However, this statement was never recorded in his previous statement before the police and, therefore, such statement is first time statement in court, which can only be regarded as material omission or improvement of the case of the prosecution. 15. Coming now to the statement of P.W. 12, who is the cousin sister of the deceased, she deposed that during 'Phirayatra', one night the deceased visited her house and told her that she was not well in the house of her husband as they were torturing her in connection with their demand of bike and colour TV. She further deposed that after 15 days, the deceased again visited her parents and at that time also she told the same thing, which she discussed with her parents. It is her further deposition that after some days, the mother of the deceased went to the deceased, who informed her that when she visited there, neither the appellant No. 1 nor his mother spoke to her and that the deceased took her to the kitchen and informed her that the bike and colour TV should be arranged even by selling homestead. This witness was made the witness to the Inquest report. According to her, she was present at the time of post mortem examination and identified the deadbody of the deceased to the Medical Officer and that the Medical Officer showed her a letter indicating that he had recovered it from the 'jangia' of the deceased. According to this witness, the letter contained the handwriting of the deceased. In the cross examination, it is revealed that the recovery of the suicide note by the doctor was never mentioned by him in his previous statement. Similarly, her statements in court, that on receipt of the telephone, mother of the deceased went to the house of the appellant No. 1 but none spoke to her when the deceased took her to the kitchen and asked to deliver the same even by selling the homestead, were never been stated in her previous statement. So is her statement that during 'Firayatra' and thereafter after about 15 days Papia came and informed her about the demand of bike and TV. 16. 16. After minutely going through the evidence of P.W. 2 to 12, which are full of material omissions or are improvements, it is not possible to rely on their statements for corroborating the evidence of P.W. 1. 16. 16. After minutely going through the evidence of P.W. 2 to 12, which are full of material omissions or are improvements, it is not possible to rely on their statements for corroborating the evidence of P.W. 1. When the evidence of these prosecution witnesses are wholly un-reliable, the question of their statements corroborating the evidence of P.W. 1 cannot arise. This leads me to come back to the evidence of P.W. 1 and to refer to the evidence of the Medical Officer conducting the post mortem examination, who was examined as P.W. 19.1 may also refer to the evidence of P.W. 16, who is the police constable, in whose presence the recovery of the alleged suicide note was made. I may also briefly refer to the evidence of the Sub-Inspector of Police (P.W. 21), who allegedly seized the suicide note (Exbt. 2). It may be straightway noted that the evidence of P.W. 1 concerning the physical torture meted out to the deceased, or of the demand made by the appellants to deliver TV and motor bike or of his telling his daughter to wait for some time for delivery of items or of his daughter asking for money whenever she paid visit to him or of the information given to him by the deceased that the appellants increased their torture after her return were conspicuous by absence in his statement recorded by the police under Section 161 Cr. P.C. 17. Though every material omission which do not effect the core of prosecution case can be overlooked, it is equally true that when such material omission pertain to the substratum of the case of the prosecution story, this Court will find it difficult to rely on such statements. In my considered view, the omissions found in the statement of P.W. 1 cannot be ignored and will certainly affect the credibility of his evidence. He could not have omitted such vital facts when he made the statement before the police under Section 161 Cr.P.C. 18. That apart, the recovery of the suicide note at Exbt. 2 appears to have been made in the circumstances which are shrouded in mystery. According to P.W. 1, at the time of the post mortem examination, the deceased was wearing a saree and a 'jangia' and that a piece of paper (Exbt. That apart, the recovery of the suicide note at Exbt. 2 appears to have been made in the circumstances which are shrouded in mystery. According to P.W. 1, at the time of the post mortem examination, the deceased was wearing a saree and a 'jangia' and that a piece of paper (Exbt. 2) was recovered from inside the 'jangia' by the Medical Officer conducting the post mortem. This document is alleged to contain the suicide note of the deceased. The suicide note, according to him, was recovered by the Medical Officer at around 12/12.30 p.m. If that is so, why this suicide note which was already recovered at 12/12.30 p.m. did not find a mention in the FIR submitted by him on the same day at 3.25 p.m. Moreover, the conduct of the Medical Officer, who conducted the post mortem examination, in giving evidence on the history of the deceased being subjected to harassment and cruelty during her marriage, which has no relation whatsoever with his professional duty, is highly unnatural and does not inspire confidence. Though P.W. 1 seems to suggest that the deceased was wearing a saree and 'jangia' at the time of her post mortem examination, this was not supported by P.W. 19. 19. In any case, post mortem examination is seldom conducted unless the body of the deceased is stripped off any wearing apparel or clothes. Similarly, the Inquest report is also conducted by the police after stripping the body of the deceased. In this connection, Exbt.-8, which is the Challan for use when a deadbody is sent for post mortem examination, is revealing in the sense that in the Column pertaining to "Remarks, nothing what clothes and articles, were sent in with the body", It was specifically mentioned "no", meaning thereby none whatsoever. If at the time of conducting the Inquest report or at the time of conducting the post mortem examination, the deceased was stripped of her clothes or any wearing apparels, it would be impossible for the Medical Officer (P.W. 19) to recover the suicide note from inside the 'jangia' of the deceased, when she was supposed to be naked. The other witness, namely, Helen Shil, in whose presence the recovery of the suicide note was alleged to have been made was never examined as the prosecution witness. The other witness, namely, Helen Shil, in whose presence the recovery of the suicide note was alleged to have been made was never examined as the prosecution witness. That apart, P.W. 16, who is a Constable at G.B. TOP and who identified the deadbody of the deceased, claimed in his examination in chief that the suicide note was recovered by the doctor from inside the 'jangia'. However, this witness did not explain as to how he was allowed to enter inside the morgue when post mortem examination was being conducted. 20. In his cross examination, he initially claimed that he was not inside the morgue but was in the gate, but he volunteered to state that some times he took entry into the morgue during the post mortem examination. When this particular witness is wavering from time to time, his statement cannot inspire confidence. Assuming that Exbt. 2 was recovered from the 'jangia' of the deceased, the prosecution has also not bothered to send the document to handwriting expert to verify if the same was authored by the deceased. In the light of the discrepancies and contradictions/inconsistencies in the statements of the witnesses earlier shown and the mysterious circumstances in which the Exbt. 2 was recovered, I find force in the contention of the learned senior counsel for the appellant that Exbt. 2 was a planted evidence to nail the appellants. The result of the forgoing discussion is that prosecution has failed to show that the deceased was subjected to cruelty soon before her death or that any demand was ever made by the appellants from the deceased or her parents for giving dowry. Inevitably, I have not alternative but to hold that the prosecution has failed to establish that the appellants have committed the offences punishable under Section 304-B/498A IPC. 21. For the reasons stated in the foregoing, Criminal Appeal No. 70/2006 is allowed. The appellants are acquitted and are set at liberty forthwith. In view of my aforesaid findings in Criminal Appeal No. 70/2006 that the prosecution has failed to prove that the appellants therein have committed the offences punishable under Section 304-B/498A IPC, there is no independent evidence either to separately convict the appellant in Crl. Appeal No. 76/2006, who was jointly charged and tried with those appellants herein for the same offences. Consequently, Criminal Appeal No. 76/2006 is also allowed. The appellant is accordingly acquitted. Appeal No. 76/2006, who was jointly charged and tried with those appellants herein for the same offences. Consequently, Criminal Appeal No. 76/2006 is also allowed. The appellant is accordingly acquitted. In the result, the impugned judgment dated 10.8.2006 be and is hereby set aside. Appeal allowed.