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2008 DIGILAW 503 (GAU)

Nilendu Paul v. State of Assam

2008-07-16

ANIMA HAZARIKA

body2008
JUDGMENT Anima Hazarika, J. 1. Heard Mr. S.K. Medhi, learned Counsel appearing for the Appellants. Also heard Mr. D. Das, learned Addl. P.P., Assam. 2. This appeal is directed against the judgment dated 27.9.2005 passed by the learned Sessions Judge, Karimganj in Sessions Case No. 108/2004 (G.R. Case No. 472 of 2002) convicting the accused Appellants under Section 304(B) / 34 IPC and sentencing them to suffer rigorous imprisonment for 7 years each with a fine of Rs. 2000/- each in default to suffer simple imprisonment for 3 months each. 3. The prosecution case in brief is that an FIR was lodged by one Sri Anjan Paul (PW-4) on 28.5.2002 with the Officer-in-Charge, Karimganj P.S. stating inter alia, that his sister Jhuma Rani Paul was married to Nilendu Paul on 5.3.2002 according to the Hindu customs. Since the marriage, her husband and his family members were torturing her physically and mentally alleging that dowry brought with her is insufficient and asked her to bring Rs. 50,000/- from her parent's house. When his sister, i.e. Jhuma told him about the same, he expressed his inability to concede the demand so made expecting that they would correct themselves in future. On 28.5.2002 he received information about his sister's illness and immediately he went to the hospital and found her dead body there. It has also been stated that the informant saw marks of blood in her nose and mouth and he believed that the three accused, viz.--(1) Nilendu Paul. (2) Srimat Paul and (3) Smt. Jyotsna Rani Paul had killed his sister and therefore lodged the FIR. Upon receipt of the aforesaid FIR, police registered a case being Karimganj P.S. Case No. 173/2002 under Section 302 / 34 IPC. The police investigated the case and after completion of the investigation submitted charge sheet under Section 304(B) / 34IPC. 4. The case being exclusively triable by the Court of Sessions, the same was committed to the Court of Sessions at Karimganj by the learned Sub-Divisional Judicial Magistrate (S), Karimganj. 5. The Sessions Judge on the materials available on record framed charge under Sections 302 / 34IPC. The charge being read over and explained to the accused Appellants, they pleaded not guilty and claimed to be tried. During the trial, prosecution examined as many as 8 witnesses. However, defence examined none. The defence case is of complete denial. 5. The Sessions Judge on the materials available on record framed charge under Sections 302 / 34IPC. The charge being read over and explained to the accused Appellants, they pleaded not guilty and claimed to be tried. During the trial, prosecution examined as many as 8 witnesses. However, defence examined none. The defence case is of complete denial. On conclusion of the trial, on the petition filed by learned PP, charges were amended and charges under Sections 304(B) / 34 IPC has been framed. The charges so framed were read over and explained to the accused persons to which they pleaded not guilty and claimed to be tried. 6. After completion of the trial, the statement of the accused persons were recorded under Section313 Code of Criminal Procedure wherein they have denied their involvement in the case. The learned Sessions Judge, on perusal of the evidence on record, passed the order of conviction as indicated herein above. 7. Being aggrieved by the aforesaid judgment of conviction, the instant appeal has been preferred by the accused Appellants. 8. In the present case, admittedly there is no eye witness. Only allegation made by the complainant in the FIR is that their sister Jhuma Rani Paul, who was married to accused Appellant No. 1 was tortured by him as well as his family members and because of such torture she died on the fateful day. 9. PW-1, Dr. Swapan Kr. Sen is the Medical Officer, who had conducted post mortem examination over the dead body of the deceased. He has specifically deposed that he has found whitish froth in the mouth but he has not seen any injury in the body. PW-1 further stated that as the definite cause of death could not be ascertained, viscera was reserved for forensic & chemical analysis. During cross-examination, he has stated that he had not detected any injury, i.e. any external or internal injury. He further deposed that frothing occurs due to poisoning or suffocation. 10. PW-2, Smti. Sabitri Paul is an aged lady of about 55 years. She deposed that deceased was the daughter of her father's elder brother's son. She also deposed that their relationship with the family member was good. On the day of occurrence, she saw froth was coming out from the mouth of the deceased. 10. PW-2, Smti. Sabitri Paul is an aged lady of about 55 years. She deposed that deceased was the daughter of her father's elder brother's son. She also deposed that their relationship with the family member was good. On the day of occurrence, she saw froth was coming out from the mouth of the deceased. She then asked her brother-in-law and husband to take the deceased to hospital and she also accompanied them while taking the deceased to the hospital. The deceased Jhuma Rani Paul died in the hospital. During cross-examination, PW-2 has stated that the deceased's house is five houses apart from her house. She used to visit her house almost always and deceased too visited her house regularly but, she never told her anything about any atrocities having been committed on her or about the demand for money. PW-2 again reiterated that the relationship of the family with the deceased was good. 11. PW-3, Pulak Paul stated that the accused No. 1 is his father's elder brother's son. The accused got married 3 1/2 months before the death. Their relationship had been good. PW-3 deposed that they live in the same homestead but, he has not seen any quarrel involving the accused persons over the issue of demand for money. He further deposed that the deceased and her husband used to sleep on the same bed. 12. PW-4, Sri Anjan Paul, who is the elder brother of the deceased, had lodged the FIR. PW-4 stated that the deceased was his youngest sister. He stated that the deceased informed his wife Archana Paul that her brother-in-law and his wife Jyotsna had demanded Rs. 50,000/- from her and that when she had informed her husband; he had asked her to obey the direction of the elder brother and his wife. When the same was informed to the PW-4 by his wife, he told the deceased that he would not be able to give her such a huge amount. Then his sister told him that for non-payment of the amount they will torture her. Nine days thereafter he got information that his sister was lying sick and she was undergoing treatment in the Civil Hospital. Then he went there. His younger brother also went to the hospital where they found their sister dead. PW-4 further deposed that he has seen the marks of blood in her nose and face. Nine days thereafter he got information that his sister was lying sick and she was undergoing treatment in the Civil Hospital. Then he went there. His younger brother also went to the hospital where they found their sister dead. PW-4 further deposed that he has seen the marks of blood in her nose and face. After seeing the blood they became suspicious and filed a complaint with the police. Ext. 2 is the FIR and Ext. 2(1) is his signature. He also put his signature in the inquest held by the Magistrate. During cross-examination, he stated that the Magistrate did not find injury in the nose, mouth and legs of the body of his sister (diseased). He has specifically stated that there was no claim of dowry at the time of marriage of his sister. During cross-examination after amendment of charge, PW-4 stated that on the occasion of 'phira', his sister had not told him about the demand for money but she had told about the same to his wife. He further stated that his mother is alive but he does not know whether or not his sister told his mother about the demand of dowry. 13. PW-5 is the wife of PW-4, i.e. first informant. She has stated that a few days before the death of the deceased she had come to their house on the occasion of marriage of her 'Dewar' (husband's brother). On being asked, the deceased told PW-5 that her brother-in-law and his wife were demanding Rs. 50,000/- from her. Then PW-5 informed about the same to her husband. Her husband, i.e. PW-4 consoled the deceased and told her that he would try to give the same to her husband. PW-5 has further stated that the deceased told her that due to her husband's sexual relationship with his 'Baudi' (elder brother's wife) she was made to sleep separately. During cross-examination, PW-5 stated that the deceased told her about the demand for money by the accused persons while she had visited her house after her marriage. After the death of Jhuma, some of her articles of marriage were brought back through police. She has further stated that they had told the police about the deceased's husband having sexual relationship with Jyotsna (sister-in-law). She has further stated that Putul and Mantu Paul were mediators in the marriage of Jhuma, i.e. deceased. After the death of Jhuma, some of her articles of marriage were brought back through police. She has further stated that they had told the police about the deceased's husband having sexual relationship with Jyotsna (sister-in-law). She has further stated that Putul and Mantu Paul were mediators in the marriage of Jhuma, i.e. deceased. But they had not informed them about the demand for money. However, PW-5 specifically stated that no demand was made at the time of marriage. Other suggestions put to her have been denied. On further cross-examination after amendment of the charge, PW-5 has stated that the deceased had told her as well as mother-in-law about the demand of money at the time of her first visit. 14. PW-6 is another brother of the deceased. He has deposed that the deceased died at her husband's house two months and 23 days after her marriage. He has also deposed that after her ceremonial first visit, the deceased was brought home only once by his maternal uncle's son. PW-6 has also stated that his elder brother's wife had been told that Rs. 50,000/- had been demanded. During the cross-examination, he has stated that he could learn about the demand of money from his elder brother's wife. He has further stated that the accused No. 2 had made demand for money. He has also stated that they filed a case under Section 107 against the accused persons. The suggestion put to him that they had filed a false case in order to harass the accused persons, has been denied by PW-6. Other suggestions put to him were also denied. 15. PW-7 is the niece of the accused No. 1. She has stated that at 5-30 A.M., on the day of occurrence, she went to the accused person's house after hearing sound of crying and she found the wife of her uncle (accused No. 1) Jhuma lying in his lap and elder aunt pouring water on her head. Then her uncle accused No. 2 brought a vehicle and took aunt (deceased) to the hospital. At that time, the deceased was trembling and froth was coming out from her mouth and she died after that. She has also stated that she told the same before the police. P W-7 also specifically stated that she had not seen any quarrel between the deceased and her husband and their relationship was good. At that time, the deceased was trembling and froth was coming out from her mouth and she died after that. She has also stated that she told the same before the police. P W-7 also specifically stated that she had not seen any quarrel between the deceased and her husband and their relationship was good. She has also stated that she had never heard about the demand for money. 16. PW-8 is the Investigating Officer in this case. PW-8 deposed that on 28.5.2002, he was the In-charge, Longai Patrol Post. At about 10 A.M., he was informed that, Jhuma Paul, wife ofNilendu Paul, died at Karimganj Hospital, Dr. F. Karim had given the information. In the meantime, FIR of U.D. case was lodged with the police station. On receipt of the charge of investigation, he went to the hospital and saw the dead body and on requisition by the Deputy Commissioner, a Magistrate came and held inquest on the dead body. PW-8 collected the inquest report and sent the dead body for post mortem examination. Ext. 3 is the inquest report and 3(1) is the signature of the Magistrate, who put his signature in his presence. After the post mortem examination, he sent the viscera to FSL and the report of FSL has also been received by him. During investigation, he inspected the place of occurrence and interrogated the witnesses and arrested the accused persons. PW-8 submitted charge sheet against the accused Appellants under Sections 304(B) / 34 IPC. During cross-examination, PW-8 has stated that FSL report shows negative test for common poison. He further stated that at the time of inquest, Magistrate did not find any mark of violence on nose, mouth, chest and on the body of the deceased. While confronting with the statements made by PW-5, PW-8 has deposed that PW-5, Archana Paul did not state before him that the accused No. 1 had sexual relationship with Jyotsna. Regarding the statement made by PW-6, he has stated that PW-6 did not state before him that he could learn about the demand for money from his sister. He further stated that he visited the place of occurrence on 29.5.2002 and recorded the statements of the witnesses of the locality. Till then he had not tried to arrest the accused Appellants since he had not found any materials against them. He further stated that he visited the place of occurrence on 29.5.2002 and recorded the statements of the witnesses of the locality. Till then he had not tried to arrest the accused Appellants since he had not found any materials against them. He has also stated that he had not arrested the accused No. 2 till 6.6.2002. 17. Mr. Medhi, learned Counsel appearing for the Appellants submits that the prosecution has miserably failed to prove the charges levelled against the Appellants, but the learned trial Court basing on the unreliable and uncorroborated evidence of the prosecution witnesses convicted the Appellants upon misappreciating the evidence on record and misreading the provisions of law. Mr. Medhi has further submitted that the trial Court had committed grave error in law as well as in fact for recording the conviction of the Appellants under Section 304-B IPC as no demand of dowry or ill-treatment in regard to the demand of dowry has been established soon before her death. 18. In support of his submission Mr. Medhi has relied upon a decision in Tirath Kumari v. State of Haryana reported in (2005) 12 SCC 561 wherein in a similar situation the Hon'ble Apex Court while allowing the appeal acquitted the accused Appellants of all the charges. Relevant paragraphs 3, 4, 5 and 6 of Tirath Kumari (supra) are quoted hereunder: 3. It is not disputed that the incident had taken place within seven years of marriage. Section 304-B IPC requires the following ingredients to be established before the presumption can be drawn under Section 113-B of the Evidence Act: (a) 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; (b) it must be shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative; (c) such cruelty or harassment must be in connection with the demand of dowry. 4. If the aforesaid ingredients are established then the death shall be called as dowry death. Once the aforesaid ingredients are established by the prosecution the presumption under Section 113-B of the Evidence Act shall be drawn. 5. It is contended by Mr. 4. If the aforesaid ingredients are established then the death shall be called as dowry death. Once the aforesaid ingredients are established by the prosecution the presumption under Section 113-B of the Evidence Act shall be drawn. 5. It is contended by Mr. Jaspal Singh, learned Senior Counsel appearing for the Appellants that in the present case both the trial Court and the High Court have committed an error in law as well as in fact for recording the conviction of the Appellants under Section 304-B as no demand of dowry or ill-treatment in regard to the demand of dowry has been established soon before her death. We have been taken through the evidence of PW 4 Om Prakash, PW 5 Sham Lal Datta, PW 7 Raj Rani and PW 10 Baldev Raj on which reliance has been placed by both the trial Court and the High Court for recording the convictions of the Appellants. Going through the evidence threadbare, we do not find any evidence to show that soon before her death she was subjected to cruelty by the husband or in-laws in connection with a demand of dowry. 6. The aforesaid ingredients having not been established, the Appellants are entitled to the benefit of doubt. The conviction and sentence recorded by the trial Court and affirmed by the High Court are set aside. They are acquitted of all the charges. Accused 4 Tirath Kumari is on bail, her bail bond and surety shall stand discharged. Accused 1 Vimal Kumar is in custody, he shall be set at liberty forthwith if not required in connection with any other case. 19. Per contra Mr. Das, learned Addl. Public Prosecutor in support of the impugned judgment of conviction has submitted that prosecution has clearly established and proved that the deceased was subjected to harassment by the Appellants during her life time demanding to bring money from her parental house. The impugned judgment passed by the learned trial Court therefore may not be interfered with in this appeal, submitted Mr. Das. 20. Now, the question which falls for consideration is the story of the deceased being subjected to cruelty immediately after her marriage and whether soon before her death the deceased had been subjected to cruelty or harassment by the husband or in-laws in connection with a demand of dowry. 21. Das. 20. Now, the question which falls for consideration is the story of the deceased being subjected to cruelty immediately after her marriage and whether soon before her death the deceased had been subjected to cruelty or harassment by the husband or in-laws in connection with a demand of dowry. 21. Thus keeping in mind the relevant provisions of law and upon hearing the submission of learned Counsel appearing for the parties, I have carefully examined the deposition of the witnesses. Since the issue is very delicate, the evidence of the witnesses need to be scrutinized with utmost care and circumspection. 22. From the evidence on record as narrated hereinabove, it is revealed that only 3 prosecution witnesses i.e. PW-4, PW-5 and PW-6 have made a feeble attempt to bring the case under Section304(B) IPC, i.e. the dowry death. Even PW-2, who is a close relation of the deceased and is an aged lady of about 55 years, also has specifically stated that the relationship of the deceased and the accused persons were good. She has further stated that her house is only five houses apart from the house of the deceased and she used to visit the house of the deceased almost always and the deceased also visited her house regularly but she never told PW-2 anything about any atrocities meted out by the accused Appellants on her or about any demand of money. Even PW-4 has also stated that there was no demand of dowry at the time of marriage of the deceased. PW-1 the doctor has opined that he could not ascertain any definite cause of death and therefore, viscera was preserved for forensic & chemical analysis. The doctor also detected no injury either external or internal and he further deposed that frothing occurs due to poisoning or suffocation. On the other hand, the Investigating Officer PW-8 has deposed that the F.S.L. report shows negative test for common poison. In the inquest report too the Magistrate did not find any mark of violence on the nose, mouth, chest and on the body of the deceased. In other words, none of the prosecution witnesses corroborated the evidence of PWs-4, 5 and 6, particularly, on the point of subjecting the deceased to cruelty on demand of dowry. In the inquest report too the Magistrate did not find any mark of violence on the nose, mouth, chest and on the body of the deceased. In other words, none of the prosecution witnesses corroborated the evidence of PWs-4, 5 and 6, particularly, on the point of subjecting the deceased to cruelty on demand of dowry. On the contrary, from the evidence of PWs-2, 3 and 7, it transpires that the relationship of the deceased with her in-laws was good. Apart from that, PW-5 in her examination in chief, has introduced a new story relating to physical relationship between the Appellant Nos. 1 and 3 but, for the reasons not known, she did not mention about the same at the time of recording her statement under Section 161 Code of Criminal Procedure by PW-8. During cross-examination, PW-4 expressed his ignorance as to whether his mother was told about demand of money or not; on the other hand, PW-5, who is the wife of PW-4 stated during her cross-examination that her mother-in-law, (i.e. mother of PW-4 and deceased) was also told about the demand of money by the accused Appellants. It is highly improbable that PW-4 is likely to remain in darkness about the fact of his mother being informed by the deceased about the demand of money by the accused Appellants. Prosecution has also not examined the mother of the deceased as witness and no explanation, whatsoever, has been rendered by prosecution for not examining the mother of the deceased. 23. In view of the above position, it has been rightly contended by Mr. Medhi, learned Counsel appearing for Appellant that in the present case in hand the learned trial Court had committed grave error in law as well as in fact in recording the conviction of the Appellants under Section 304(B) IPC as no demand for dowry or ill treatment has been established soon before her death. In this connection, Mr. Medhi, learned Counsel relied upon the evidence of PWs-1, 2, 3, 7 and 8 as discusssed hereinabove. Going through the evidence threadbare we do not find any evidence to show that soon before the death of the deceased she was subjected to cruelty by the husband or the other accused Appellants in connection with demand of dowry. Even from the evidence on record no witnesses said anything against the accused No. 1, i.e. husband of the deceased. Going through the evidence threadbare we do not find any evidence to show that soon before the death of the deceased she was subjected to cruelty by the husband or the other accused Appellants in connection with demand of dowry. Even from the evidence on record no witnesses said anything against the accused No. 1, i.e. husband of the deceased. Though a feeble attempt was made by PWs-4, 5 and 6, i.e. the brothers and sister-in-law of the deceased to rope the accused Nos. 2 & 3 with the case under Section 304(B). It is also pertinent to mention herein that the mother of the deceased has not been examined as witness by the prosecution though PW-5 has stated that the deceased also told her mother about the demand for dowry. 24. The ingredients under Section 304(B) IPC as well as 113(B) Evidence Act having not been established, the Appellants are entitled to the benefit of doubt. In view of the same, the conviction and sentence recorded by the learned trial Court is set aside. The accused Appellants are acquitted of the charges. It is stated at the Bar that the accused Appellants are in custody; they shall be set at liberty forthwith if not wanted in connection with any other case. 25. The appeal is accordingly allowed. 26. Send down the LCR.