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2007 DIGILAW 739 (CAL)

Sanjoy Saha Alias Sanju v. STATE OF WEST BENGAL

2007-09-21

S.K.GUPTA

body2007
Judgment :- (1.) THIS appeal has been preferred against the judgment dated 29. 6. 2006 passed by the learned Additional Sessions Judge, Fast Track Court, nabadwip in Sessions Trial No. 5 (VIII)/2005, whereby the appellants were convicted for the commission of offence under Sections 498a and 304b of the Indian Penal Code and they were sentenced to suffer R. I. for one year each and to pay fine of Rs. 3,000/-each for the commission of offence under Section 498a and to suffer R. I. for seven years each and to pay fine of Rs. 5,000/- each for the commission of offence under Section 304b of the Indian Penal Code. (2.) CASE of the appellants is that on 27. 7. 2004 one Gouranga Sundar das submitted a written complaint to the Officer-in-Charge, Nabadwip Police station, wherein it was stated that on 26. 7. 2004 in the evening he was in his house. His daughter Bisakha Saha, aged about 19 years, was married with Sanjoy Saha, son of Subal Saha who was his neighbour. Sanjoy and bisakha, before their marriage, fell in love and subsequently the marriage took place. Out of the said wedlock, a male child was born. The complainant stated in the written complaint that his daughter was not happy in the matrimonial house as after the marriage, her in-laws started creating pressure upon her to bring money and dowry from her paternal house. Bisakha Saha used to inform the complainant and his family members about this. Due to this, the complainant lodged a General Diary with the Nabadwip p. S. According to the complainant on 26. 7. 2004 in between 7 to 8 p. m. he found that Bisakha sustained burn injuries caused by the members of her matrimonial house and she was shifted to the hospital. The complainant was of the firm belief that his daughter Bisakha died out of the burn injuries, which was caused by her husband and his family members. On the basis of the said written complaint, Nabadwip P. S. Case No. 85 of 2004 was started. The case was investigated and after completion of investigation charge-sheet was submitted against all the accused persons. During trial, charges under Section 498a and under Section 304b of the Indian Penal Code were framed against all the accused persons. Same was read over and explained to them when they pleaded not guilty and claimed to be tried. The case was investigated and after completion of investigation charge-sheet was submitted against all the accused persons. During trial, charges under Section 498a and under Section 304b of the Indian Penal Code were framed against all the accused persons. Same was read over and explained to them when they pleaded not guilty and claimed to be tried. In order to establish the charges, prosecution examined 15 (fifteen) witnesses. The accused persons examined 2 (two) witnesses in their defence. Some documents were marked for both the sides. The defence case, as it has transpired from the trend of the cross-examination as well as from the statements, as made by accused persons during their examination under section 313 of the Cr. P. C. , is that of denial. They have denied the prosecution claim that Bisakha was tortured by them in the matrimonial house over the demand of dowry. They have also claimed that they were no way responsible for the death of Bisakna, as claimed by the prosecution. (3.) THERE cannot be any doubt that so far as this case is concerned, prosecution, first of all is to prove that there was ill-treatment with Bisakha in the matrimonial house over the demand of dowry and as a result of that bisakha died in suspicious circumstances within seven years of her marriage. There is no dispute that the death of Bisakha took place within seven years of the marriage. So prosecution is to establish, by cogent evidence, that there was torture over Bisakha in the matrimonial house over the demand of dowry, which ultimately culminated into her death in suspicious circumstances. If the initial onus is discharged by the prosecution, then it will be the duty of the accused persons to establish that there was no torture upon Bisakha over the demand of dowry in the matrimonial house and consequently they are no way responsible for the death of Bisakha which took place under unnatural circumstances. Let us first of all see how far the prosecution has been able to establish all these things. (4.) I have already pointed out that prosecution has examined 15 witnesses in support of its case. In order to arrive at a decision of this case, let us now see as to who are the prosecution witnesses and what they have stated in their evidence. (4.) I have already pointed out that prosecution has examined 15 witnesses in support of its case. In order to arrive at a decision of this case, let us now see as to who are the prosecution witnesses and what they have stated in their evidence. (5.) P. W. 1 is Smt. Lalita Das, the sister of the deceased. She has stated in her evidence that she was a student of B. A. class at the time of her deposition. According to her, the house of the accused persons, is situated almost adjacent in the house of this P. W. 1. She has stated, in her examination-in-chief, that after the marriage, the accused persons used to demand more money and other valuable articles from Bisakha. She has claimed that the deceased used to tell all these things to her. According to this witness, over this matter a Salish was held in the locality in the house of one Amal Saha about 6/7 months after the marriage of Bisakha. This witness has stated that on 25. 7. 2004 i. e. one day prior to theactual incident, all the accused persons entered into her house and assaulted Bisakha and also threatened to kill her unless their demand was fulfilled. This witness has further claimed that on 26. 7. 2004 at about 7. 30 p. m. to 8 p. m. she found fire in the rear side of Subal Sahas house. She immediately informed her parents about the incident. She and other members rushed towards the gate and at that time they found the accused persons were carrying Bisakha, who sustained severe burn injuries on her person. According to this witness bisakha was taken by those persons to the hospital where she succumbed to her death. This witness was extensively cross-examined by the accused persons when suggestion was given to her that she did not depose correctly. It appears that in cross-examination she has stated that she made statement before the Magistrate under Section 164 of the Cr. P. C. She reiterated her claim that one day prior to the incident the accused persons came to her fathers house and gave serious threatening. (6.) P. W. 2 is Gobinda Das. He is the brother of the defacto-complainant. According to this witness, the accused persons used to torture Bisakha in the matrimonial house over the demand of dowry. P. C. She reiterated her claim that one day prior to the incident the accused persons came to her fathers house and gave serious threatening. (6.) P. W. 2 is Gobinda Das. He is the brother of the defacto-complainant. According to this witness, the accused persons used to torture Bisakha in the matrimonial house over the demand of dowry. This witness has claimed that one day prior to the incident, the accused persons entered into the house of the father of Bisakha and threatened the inmates severely. In his cross-examination, this witness admitted that accused Sanjoy Saha was admitted in the hospital as he allegedly sustained burn injuries on his hand. (7.) P. W. 3 is Amal Chandra Das, who simply stated that Bisakha died due to burn injuries. According to this witness, there was dispute in between the two families over the boundary of their respective houses. (8.) P. W. 4 is Nripen Dey who is a neighbour of the parties. This witness has claimed that the two families were in trouble for long. Before the Court, in his cross-examination, he admitted that a suit was pending in between him and the accused Subal Saha. (9.) P. W. 5 is Sushil Kumar Das, who prepared the inquest report. (10.) P. W. 6 is Netai Pain. According to this witness, he heard that bisakha sustained burn injuries in her matrimonial house. (11.) P. W. 7 is Uttam Das who is the uncle of the deceased. He was present at the time of inquest and also signed the report. (12.) P. W. 8 is Sobha Pain. She is the wife of P. W. 6. She, in her evidence, has stated that Bisakha died in the house of accused Subal Saha due to the burn injuries sustained by her. In her cross-examination this witness admitted that accused Sanjoy, the husband of Bisakha, tried to save her life. (13.) P. W. 9 is Tapas Mallick, who drew up the formal First Information report. (14.) P. W. 10 is Mans Bose, the Judicial Magistrate, who recorded the statement of Lalita Das and Gobinda Das under Section 164, Cr. P. C. (15.) P. W. 11 is Dr. Pranab Roy who conducted the post mortem examination. In his cross-examination this witness admitted that he did not ascertain whether the death of Bisakha was suicidal, homicidal or accidental. (16.) P. W. 12 Chandan Kanti Neogi. P. C. (15.) P. W. 11 is Dr. Pranab Roy who conducted the post mortem examination. In his cross-examination this witness admitted that he did not ascertain whether the death of Bisakha was suicidal, homicidal or accidental. (16.) P. W. 12 Chandan Kanti Neogi. He supervised the investigation. (17.) P. W. 13 is A. S. I. Arun Kumar Som. He conducted the inquest and prepared the report. (18.) P. W. 14 is Constable Prabhat Kumar Das. He carried the dead-body to the morgue for holding post mortem examination. (19.) P. W. 15 is Arup Kumar Sarkar who investigated the case. According to him, after completion of the investigation, he submitted the charge-sheet against the accused persons. (20.) SO far as two DWs are concerned, it appears that DW 1 is Amal saha. It is the case of the prosecution that when torture was going on upon bisakha over the demand of dowry, there was a Salish held in the house of this witness Amal Saha. But this witness, in his examination-in-chief, clearly stated on oath that in fact Salish was held in his house in between Subal saha and Gouranga Das regarding land dispute. He could not enlighten the Court regarding the demand of dowry of Rs. 2,00,000/- by the accused persons. It is the categorical statement of this witness that no Salish was held in his house regarding the alleged torture upon Bisakha over the demand of dowry. (21.) DW 2 is Dr. Nripati Roy. This doctor, in his evidence, claimed that accused Sanjoy Saha was admitted in the hospital on 26. 7. 2004 and was discharged on 14. 8. 2004. According to him, Sanjoy at that time sustained burn injuries on his right upper limb, left upper limb, right and left lower limbs and foot. In fact, according to this doctor, Sanjoy sustained 24% burn injuries. He has further stated in his report that it was a case of accidental burn to save his wife. (22.) AFTER considering the entire evidence-on-record, as discussed above, learned Trial Court was pleased to hold all the accused persons guilty for the commission of offence under Section 498a/304b of the Indian penal Code and sentenced all of them, as indicated at the outset. (23.) BEING aggrieved by and/or dissatisfied with the judgment and order of conviction, the appellants have preferred this appeal. (23.) BEING aggrieved by and/or dissatisfied with the judgment and order of conviction, the appellants have preferred this appeal. (24.) THE question that is to be considered so far as this appeal is concerned, is whether the prosecution could establish that Bisakha was tortured in the matrimonial house over the demand of dowry and that soon before her death she was subjected, to such assault, which ultimately led to her death in a suspicious circumstance. Prosecution is to prove all these things beyond reasonable doubt and in case it is established that the accused persons were in the habit of torturing Bisakha in the matrimonial house over the demand of dowry, then and then only the accused persons could be asked to explain the circumstances leading to the death of Bisakha in the said house in a suspicious manner within seven years of her marriage. (25.) LET us now see how far the prosecution has been able to establish this fact ofalleged torture over the demand of dowry by the accused persons so far as Bisakha was concerned. (26.) ADMITTEDLY the appellants were charged for the commission of offence under Sections 498a/304b of the IPC and convictedand sentenced accordingly. I have already pointed out that the prosecution in order to establish the charge against the appellants has examined 15 witnesses. It may be pointed out here that there is no eyewitness regarding the alleged incident which is also not possible for the prosecution to produce in the case of this nature. Prosecution has heavily relied upon the statements of p. W. 1, Smt. Lalita Das, the sister of the victim, P. W. 2 Gobinda Das, who is the uncle of the deceased, P. W. 4 Nripen Dey who is a neighbour of the parties and on P. W. 7 Uttam Das who is also the uncle of the deceased. (27.) IT is the case of the prosecution that the appellants used to torture the deceased after her marriage over the demand of dowry and as a result of that the deceased died within seven years of her marriage under unnatural circumstances. In order to come to a final decision, so far as this appeal is concerned, it will be profitable to first look into the provisions of Section 498a and Section 304b of the IPC together with the provisions, as laid down in Section 113b of the Indian Evidence Act. In order to come to a final decision, so far as this appeal is concerned, it will be profitable to first look into the provisions of Section 498a and Section 304b of the IPC together with the provisions, as laid down in Section 113b of the Indian Evidence Act. Section 498a of the IPC runs as follows : "498-A. Husband or relative of husband of a woman subjecting her to cruelty.-Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extent to three years and shall also be liable to fine. Explanation.-For the purpose of this section, "cruelty" means- (a) any wilful 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 or physical) of the woman ; or (b) harassment of the woman 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. " Section 304b of the IPC runs as follows : "304-B. Dowry death.-(1) Where the death of a woman is caused by any bums 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 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. Explanation.-For the purposes 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. " (28.) SO, it appears that there are three main ingredients of Section 304b, namely, (a) That there is a demand of dowry and harassment by the accused on that count; (b) that the deceased died ; and (c) That the death is under unnatural circumstances within seven years of the marriage. (29.) WHEN these factors are proved by reliable and cogent evidence, then the presumption of dowry death under Section 113b of the Indian evidence Act clearly arise. The abovementioned ingredients are necessary to attract to the provisions of Section 304b of the IPC. This special provision, which was inserted by an amendment of 1986 to deal with a large number of dowry deaths taking place to the country. In this respect it is profitable to look into the provisions of Section 113b of the Evidence Act, which reads as under: " 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 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. 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). " (30.) IN the decision of Harjit Singh v. State of Punjab, as reported in (2006)1 SCC 463 : (2006)1 C Cr LR (SC) 414, the Apex Court observed that from a conjoint reading of Section 304b of the Indian Penal Code and section 113b of the Indian Evidence Act, it will be observed that the presumption arising thereunder will operate if the prosecution is able to establish the circumstances, as set out in Section 304b of the Penal Code. The Apex Court clearly noted the circumstances which should be relevant for consideration in such a case and those are (1) that the death of a woman was caused by any burns or bodily injury or in some circumstances which were not normal; (b) such death arose within seven years from the date of her marriage ; (c) that the victim was subjected to cruelty or harassment by her husband or any relative of her husband ; (d) such cruelty or harassment should be or in connection with the demand of dowry ; (e) it is established that such cruelty and harassment was made soon before her death. (31.) IN the said decision passed in Harjit Singh (supra) the Honble apex Court further observed to the effect that "the expression, soon before her death used in the substantive Section 304b, IPC and Section 113b of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression soon before is not defined. A reference to the expression soon before used in Section 114 illustration (a) of the Evidence Act is relevant. It lays down that the Court may presume that a man who is in the possession of goods soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for their possession. The determination of the period which can come within the time soon before is left to be determined by the Courts depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression soon before would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence. " (32.) FOLLOWING the said decision, other decisions were passed by the honble Apex Court, and also by the other High Courts to the effect that there cannot be any straight jacket formula regarding the determination as to whether any torture was done on the woman concerned over the demand of dowry leading to her unnatural death. It depends upon the circumstances of each case and should be considered by the Court on the basis of the materials available on record. From the decision, it is very much clear that it must be established by the prosecution that immediately after the marriage, the deceased was subjected to cruelty over the demand of dowry by her husband and other in-laws and soon before the death she was subjected to cruelty in such a manner, so that it resulted in her unnatural death within seven years of the marriage. Let us now consider the present case in the light of the guidelines as prescribed in the judicial pronouncements. (33.) FIRST of all, it may be pointed out that there is no dispute that the deceased died within seven years of her marriage in unnatural circumstances in her matrimonial house. It is the case of the prosecution that the appellants used to demand more dowry after the marriage. In this respect Mr. Mukherjee, learned Advocate for the appellants argued that the demand of dowry within the meaning of Section 304b of the IPC read with Section 113b of the indian Evidence Act must be in respect of the marriage and said demand had connection with the said marriage, between the parties. He also argued that in order to attract the provisions of these Sections, it must be established by the prosecution that there was an agreement in between the parties for giving dowry at the time of marriage. Unless and until that is established, prosecution cannot take advantage of those two provisions. He also argued that in order to attract the provisions of these Sections, it must be established by the prosecution that there was an agreement in between the parties for giving dowry at the time of marriage. Unless and until that is established, prosecution cannot take advantage of those two provisions. In this respect, he has drawn my attention to the provisions of Section 2 of the Dowry prohibition Act, 1961, which defines dowry :-"definition of Dowry.- In this Act, the 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 the marriage in connection with the marriage of the said parties. . . . . . . . . . . . " (34.) HE also pointed out that in Section 304b of the IPC, it is mentioned that, the word dowry shall have the same meaning as provided in Section 2 of the Dowry Prohibition Act. By pointing out to this provision, Mr. Mukherjee argued that there must be the demand of dowry in connection with the marriage when it took place between two persons. He further argued that so far as the present case is concerned, there is no dispute that Bisakha and the appellant No. 1 married out of love affairs and they fled away from their respective houses and got themselves married out of their own. It has also transpired from the evidence that they remained absent from their houses for about three months and thereafter they returned back. By pointing out to this part of the evidence, Mr. Mukherjee argued that since at the time of marriage. there was no scope of demand of any dowry, so the provisions of Section 304b of the IPC is not at all attracted so far as this case is concerned. (35.) MR. Dutta Gupta, learned Advocate for the State, on the other hand, argued that those provisions are very much applicable even if at the time of marriage no dowry was demanded. (35.) MR. Dutta Gupta, learned Advocate for the State, on the other hand, argued that those provisions are very much applicable even if at the time of marriage no dowry was demanded. According to him, if the demand of dowry was made subsequently in connection with the marriage of the parties, then also the provisions of Section 304b of the IPC read with Section 2 of the Dowry Prohibition Act and 113b of the Indian Evidence Act are clearly applicable. In this respect, he has cited decision reported in 1998 c Cr LR SC 190 (Pawan Kumar and Ors. v. State of Haryana) wherein the honble Apex Court considered almost same submission and held :-"the word agreement referred to in Section 2 has to be inferred on the facts and circumstances of each case. The interpretation that the appellant seeks, that conviction can only be passed if there is agreement for dowry, is misconceived. This would be contrary to the mandate and object of the Act. dowry definition is to be interpreted with the other provisions of the Act including Section 3 which refers to giving or taking dowry and Section 4 - Penalty for demanding dowry, under 1961 Act and the Indian Penal Code. This makes clear that even demand of dowry on other ingredients being satisfied is punishable. This leads to the inference, when persistent demands for T. V. and scooter are made from the bride after marriage or from her parents it would constitute to be in connection with the marriage and it would be a case of demand of dowry within the meaning of section 304b of the IPC. It is not always necessary that there be any agreement for dowry". (36.) IN view of this clear decision of the Honble Apex Court, I am unable to accept the contention of the learned Advocate for the appellants that since at the time of marriage there was no such agreement to pay dowry, so the provisions of Section 3048 of the IPC is not attracted so far as this case is concerned. I am of opinion that it is always open for the prosecution to establish that even after the marriage there was demand of dowry and consequently due to non fulfilment of the said demand, there was constant torture upon the deceased in the matrimonial house resulting to her unnatural death. I am of opinion that it is always open for the prosecution to establish that even after the marriage there was demand of dowry and consequently due to non fulfilment of the said demand, there was constant torture upon the deceased in the matrimonial house resulting to her unnatural death. If the evidence, on the side of the prosecution, in this respect, is believable, then there cannot be any bar to hold the appellants guilty for the prices charged with. (37.) LET us now see how far the prosecution has been able to prove all these things beyond any reasonable doubt. I have already pointed out that prosecution heavily relied upon the evidence of P. W. 1, Smt. Lalita das, the sister of the victim, P. W. 2 Gobinda Das, who is the uncle of the deceased, P. W. 4 Nripen Dey who is a neighbour of the parties and on p. W. 7 Uttam Das who is the uncle of the deceased. It may be pointed out here that First Information Report was lodged by the father of the deceased and the said written complaint was written by the P. W. 2 Gobinda Das as per the instruction of his elder brother. It may also be pointed out that the father of the deceased, who lodged the FIR, died during the trial and as such, he could not be examined. It is the case of the prosecution that one day prior to the death of the deceased the appellants went to the house of bisakhas father and threatened and assaulted them. (38.) PROSECUTION has further claimed that prior to that date also there were such type of incident when Bisakha was assaulted in her fathers house even few days after the delivery of her child. It is the admitted position that the houses of both the parties are almost adjacent to each other. Prosecution has tried to establish mainly through the P. W. 1 Lalita Das that Bisakha was tortured in her matrimonial house and even when she stayed in her fathers house after giving birth to her child, the appellants came to her fathers house and assaulted her and also threatened her parents and other inmates severely due to the alleged non fulfilment of dowry demand. It has been further pointed out that this P. W. 1 Lalita in her evidence clearly claimed that one day prior to the incident all the accused persons came to their house and threatened and assaulted them due to non fulfilment of demand of dowry. Possibly by making such statement, P. W. 1 tried to establish that as before her death Bisakha was maltreated by the accused persons and her parents were also insulted and assaulted, that is the cause of her unnatural death in suspicious circumstances. But, if we look into the written complaint, then it will appear that there is no such mention about such incident of 26. 7. 2004, as claimed by the P. W. 1. It is unbelievable that the father of deceased would not mention such incident in his written complaint which was written none else than his brother as per his dictation. This fact certainly raises a strong suspicion in the mind regarding the genuineness of the claim of this P. W. 1. (39.) THAT apart, she has claimed that on 18. 5. 2003 all the five accused persons came to her house and abused and threatened the inmates due to non-payment of dowry. She claimed that she stated this fact to the magistrate. Before the Magistrate she stated that on that day when Bisakha was taken to the matrimonial house by this witness and others, they were abused. P. W. 1 has further claimed that over this incident, a report was lodged in the Police Station. But no attempt was made by the prosecution to produce the said G. D. Entry in order to substantiate the claim of the P. W. 1. There is no explanation for that. Non production of this vital document raises a strong doubt regarding the genuineness of the claim, as made by the p. W. 1 in this respect. (40.) PROSECUTION tried to get corroboration of the statement, as made by the P. W. 1, by adducing the evidence of P. W. 2 Gobinda Das, the uncle of the deceased, who wrote the written complaint as per dictation of the defecto-complainant. This witness has also claimed that the accused persons were in the habit of torturing Bisakha over (he demand of dowry. In his evidence, he has specifically mentioned that they demanded Rs. 2 lakhs and 10 vanes of golden ornaments and different types of household articles. This witness has also claimed that the accused persons were in the habit of torturing Bisakha over (he demand of dowry. In his evidence, he has specifically mentioned that they demanded Rs. 2 lakhs and 10 vanes of golden ornaments and different types of household articles. But although, he wrote the written complaint, all these facts were not specifically mentioned in it. Undoubtedly there is no such law that every detail should be mentioned in the written complaint. But at least one can expect that in such a case the relevant incidents which have a clear bearing in the result of the case should find place in the written complaint. If the claim, as made in his evidence by P. W. 2 was within his knowledge when he wrote the written complaint at the instance of the defactocomplainant, then I fail to understand as to what prevented him to point out those things to the defacto-complainant so that those facts could be included in the written complaint. There is no explanation in this respect by the P. W. 2 (41.) PROSECUTION has also heavily relied upon the evidence of P. W. 4 nripen Dey who claimed that the accused persons used to torture Bisakha and her family members over the demand of dowry. But it appears from the cross-examination of this witness that a long-standing dispute was going on in between him and the father-in-law of the deceased over the landed property. Under such circumstances, it will be very mush risky to place reliance upon the evidence of P. W. 3. On the other hand, if we look into the evidence of P. W. 6 Netai Pain, another neighbour, then it will appear that although, he admitted that Bisakha died in a suspicious manner in her matrimonial house, but he did not state anything regarding the exact relationship that was existed in between Bisakha and her husband and other in-laws. (42.) P. W. 7 Uttam Das, who is the uncle of the deceased, claimed that the accused persons used to assault and torture Bisakha over the demand of dowry which resulted in her unnatural death. But in his cross-examination this witness admitted by saying that "i did not state to the police that the accused persons used to subject Bisakha to mental torture on the demand of money. But in his cross-examination this witness admitted by saying that "i did not state to the police that the accused persons used to subject Bisakha to mental torture on the demand of money. I did not state to the police that on an occasion I saw the accused persons quarreling over their demand for money and ornaments". This fact certainly raises a strong doubt regarding the claim, as made by this witness at the time of trial. That apart, admittedly he was present when inquest was done on the dead-body of Bisakha. But surprisingly before the police officer, who prepared the inquest this witness did not think it necessary to mention about this alleged torture as allegedly done by the accused persons on Bisakha. As such, this fact also diminishes the credibility of this witness to a great extent. (43.) THAT apart, although there is no mention in the written complaint, still the prosecution has tried to set up a story by adducing evidence of p. W. 1 and other P. Ws. that over the alleged demand of dowry there was a village Salish held in the house of one Amal Saha. But surprisingly, this amal Saha was not examined by the prosecution. If we look into the evidence of the Investigating Officer, then it will also appear that he also did not take any effective step for collecting evidence regarding this holding of alleged salish in the village over the so-called demand of dowry. But although the prosecution has failed to examine this Amal Saha in whose house allegedly there was a salish to resolve the dispute in between the parties over the demand of dowry, the accused persons produced this witness before the court at the time of trial and he was examined as DW 1. In this evidence this DW 1 Amal Saha has stated that he was the Senior Supervisor of United bank of India, Nabadwip in the year 2001. According to him, people of the locality used to come to him for solving their problems as well as for proper advice on various issues. This witness has claimed that a salish was held in between Subal Saha and Gouranga Das over a land dispute. But he categorically denied that there was any talk to settle the demand of dowry in the salish, as claimed by the P. W. 1 and others. This witness has claimed that a salish was held in between Subal Saha and Gouranga Das over a land dispute. But he categorically denied that there was any talk to settle the demand of dowry in the salish, as claimed by the P. W. 1 and others. He also denied that there was any talk of resolving the dispute in between the parties over the alleged payment of Rs. 2 lakhs and ornaments and other articles as allegedly claimed by the accused persons. Although, such statement was made by this DW 1, still the prosecution did not put any suggestion to this witness to the effect that he was giving false evidence in order to save the accused persons. As such, I find no reason to disbelieve the statement of this witness. Considering the status of this DW 1 and the manner in which he deposed before the Court, I am of opinion that the learned Trial Judge was not at all justified in ignoring the evidence of this vital witness. This fact certainly demolishes the case of the prosecution to a great extent. (44.) THAT apart, it is the defence case that the appellant No. 1, husband of the deceased, tried to save Bisaka when she was burning and in the process he also sustained burn injuries on his person. If we look into the evidence of P. W. 1 Lalita Das, then it will appear that in her cross-examination she admitted that accused Sanjoy also received burn injury and was admitted in the hospital. But she stated that she heard this fact from the others. But if we look into the evidence of I. O. , then it will appear that he also admitted that it was within his knowledge that accused Sanjoy was admitted in the hospital. This claim of the Defence also finds support from the evidence of P. W. 8, Sova Pain who admitted that accused Sanjoy tried to save the life of Bisakha. (45.) THAT apart, if we look into the evidence of Dr. Nripati Roy, then it will appear that he clearly stated in his evidence on oath that Sanjoy was admitted in the hospital on 26. 7. 2004 i. e. the date of the incident and was discharged on 14. 8. 2004. According to this doctor, Sanjoy sustained 24% bum injuries on various parts of his body. Nripati Roy, then it will appear that he clearly stated in his evidence on oath that Sanjoy was admitted in the hospital on 26. 7. 2004 i. e. the date of the incident and was discharged on 14. 8. 2004. According to this doctor, Sanjoy sustained 24% bum injuries on various parts of his body. This DW 2 was, at the time of deposition working as Superintendent, District Hospital, Nadia at krishnanagar. A suggestion was given to this witness that Sanjoy was not admitted in the hospital on 26. 7. 2004. But in view of admission of p. W. 1 and the evidence of I. O. and P. W. 8, I find no reason to disbelieve the statement of this doctor regarding the injuries, as sustained by the accused Sanjoy. There cannot be any reason to disbelieve the documents, which were produced by this witness before the Court. I fail to understand as to how the learned Trial Judge could ignore this important piece of evidence. Be that as it may, it appears clearly that accused Sanjoy also sustained burn injury on his person in order to save his wife. If that is the position, then it cannot be said that the accused persons particularly accused sanjoy did not take any step to save the life of Bisakha at the material time. This attempt of Sanjoy to save the life of his wife practically belies the claim of the prosecution that the accused persons used to torture Bisakha in the matrimonial house over the demand of dowry resulting in her unnatural death within seven years of her marriage. (46.) BEFORE coming to the conclusion, I think it is my duty to point out another fact so far as this case is concerned. The manner in which the investigation of the case was conducted is far from satisfactory. I have already pointed out that it has been established beyond doubt that the appellant No. 1 sustained burn injury on his person in order to save his wife. It has also beer established that Sanjoy, husband of the deceased, was admitted in the hospital. I fail to understand as to why the I. O. did not take any step for seizing the medical papers connecting to the treatment of sanjoy. It has also beer established that Sanjoy, husband of the deceased, was admitted in the hospital. I fail to understand as to why the I. O. did not take any step for seizing the medical papers connecting to the treatment of sanjoy. It is also surprising that the I. O. did not think it necessary to seize the bed-head tickets and other papers of Bisakha from the hospital. In fact a suggestion was given by the accused persons to the I. O. to the effect that bisakha made a statement in the hospital to the effect that her in-laws were not responsible for her death. This claim of the defence could have been negatived by the prosecution by producing the bed-head tickets of the deceased while she was admitted in the hospital or by examining the attending Doctor. There is no explanation of the I. O. as to why he did not take such step. It must be pointed out that the I. O. is supposed lo be a neutral person and it is expected that he will take all such steps during investigation in order to unearth the truth behind the incident. I am constrained to say that the I. O, did not perform his solemn duty in order to assist the Court to come to a definite conclusion regarding the alleged commission of offence by the accused persons. This fact also diminishes the credibility of the prosecution case to a great extent. (47.) THEREFORE, from my above discussion, I am of opinion that there is clear room for doubt regarding the prosecution claim that the accused persons used to torture Bisakha in her matrimonial house for demand of dowry resulting in her unnatural death within seven years of her marriage. I have already pointed out that a person can be convicted for the offence under Section 304b of the Indian Penal Code with the aid and assistance of Section 113b of the Indian Evidence Act. But that presumption can be drawn only when prosecution could establish that soon before her death the deceased was tortured in the matrimonial house over the demand of dowry. From the materials-on-record, it must be said that the prosecution has failed to establish this fact beyond doubt. The alleged incident, which the P. W. 1 claimed that it took place one day prior to the. From the materials-on-record, it must be said that the prosecution has failed to establish this fact beyond doubt. The alleged incident, which the P. W. 1 claimed that it took place one day prior to the. death of the deceased in the house of Bisakha, appears to be unbelievable and I have got no hesitation to hold that this was an attempt by the prosecution to strengthen its case to prove the offence under Section 304b of the I PC. In addition to this, one thing may be pointed out that it has transpired from the evidence-on-record that Bisakha, before her death, appeared in the test of madhyamik Examination. This fact also lends support to the defence case that Bisakha was treated well in the matrimonial house. Had there been any such torture, then it would not have been possible for her to prepare herself for such examination without the consent and assistance of the husband and other in-laws. That apart, from the evidence of PWs, it is palpably clear that both the families were in visiting terms and attended various ceremonies including sadh and. first birthday ceremony of the son of Bisakha. They also attended the marriage ceremony of one of the relatives and joint photographs were taken during all such ceremonies. Those photographs were produced before the Court and were marked exhibits on admission. This fact clearly establishes that there was cordial relationship in between the parties. Unless and until there was any such relation, it would not be possible for the parties to attend the respective ceremonies in a jovial mood. This part of the evidence also belies the claim of the prosecution that since after the marriage Bisakha was subjected to mental and physical cruelty over the demand of dowry. (48.) THUS, after considering the entire materials-on-record, I am of opinion that there is room for doubt regarding the prosecution claim that the accused persons used to torture Bisakha, both mentally as well as physically for alleged demand of dowry which resulted in her death in unnatural circumstances. As this fact could not be established by the prosecution beyond any reasonable doubt, so the prosecution cannot take help of Section 113b of the Indian Evidence Act in order to hold the accused persons guilty for the offences under Section 498a/304b of the Indian Penal code. As this fact could not be established by the prosecution beyond any reasonable doubt, so the prosecution cannot take help of Section 113b of the Indian Evidence Act in order to hold the accused persons guilty for the offences under Section 498a/304b of the Indian Penal code. In my considered opinion the learned Trial Judge was not justified in ignoring all these facts while relying mainly upon the statement of P. W. 1, lalita for holding the accused persons guilty for the offence charged with. Undoubtedly the death of a young housewife is always painful. But there may be various reasons for such death. Simply because, the lady died in an unnatural circumstance in the matrimonial house, that cannot be a ground for holding the appellants guilty for the offence under Sections 498a/304b of the Indian Penal Code, in absence of reliable and believable evidence. To my mind, it is a fit case where the accused persons should be given the benefit of doubt and should be held not guilty for the offences charged with. They are entitled to get an order of acquittal and the order of convictions, as passed by the learned Trial Judge should be set aside. (49.) IN the result, the appeal is allowed on contest. The judgment and order of conviction dated 28. 6. 2006 and 29. 6. 2006, as passed by the learned Additional Sessions Judge, Fast Track Court, Nabadwip, Nadia, in sessions Trial No. 5 (VIII) of 2005 is set aside. All the accused persons are acquitted. Appellant Nos. 2 to 5 are discharged from the bail bonds. The accused/appellant No. 1 Sanjoy alias Sanju, who is now in jail, be released at once if not wanted in any other case. (50.) SEND a copy of this judgment along with L. C. R. to the Court below at once for information and necessary action. (51.) SEND a copy of this judgment to the Superintendent, Correctional home, where the accused/petitioner Sanjoy Saha is now under detention, for information and taking necessary action.