Research › Search › Judgment

Calcutta High Court · body

2008 DIGILAW 851 (CAL)

STATE OF WEST BENGAL v. Sambhu Nath Bose

2008-08-22

G.C.GUPTA, PARTHA SAKHA DATTA

body2008
Judgment :- (1) DATTA, J. The State has preferred this appeal against the judgment and order dated 30th September, 1994 passed by the learned Additional sessions Judge, 6th Court, Alipore in the District of 24-Parganas (S) acquitting the respondents of the charges under Section 498a read with Section 34 and 304b read with Section 34 of the I. P. C. in Sessions Trial No. 4 (4) of 1994. (2) DIPAK Kumar Roy, father of the victim Pratima Bose lodged an FIR with the Thakurpukur P. S. at 21-35 hrs. on 28th October, 1991 alleging the following. (3) THE victim was married to the respondent Shambhu Nath Bose of joka, Babur Bagan under P. S. Thakurpukur on 4th of July 1991. Since the beginning of the marital life the victim was subjected to continuous torture arising out of demand for money, almirah and necklace etc. The victim whenever came to her parents house reported the incident of torture to her parents. The father was compelled to go to his daughters matrimonial home and when he confronted the father-in-law and mother-in-law of his daughter they insulted and threatened him. His daughter was severely tortured by her husband, parents-in-law and brother-in-law. At about 5o clock in the evening on 28th october, 1991 an information was received by his daughters uncle that his daughter was lying sick and admitted in Vidyasagar Hospital. The father of the victim immediately rushed to the hospital and found the burnt dead body of his daughter. The victim was carrying for a month as was learnt by him from his daughter. (4) ON receipt of the complaint Thakurpukur P. S. registered a case being No. 505 dated 28. 10. 1991 under Section 304b of the I. P. C. and upon completion of investigation charge sheet was submitted under Section 498a/ 304b/34 of the I. P. C. against four accused persons i. e. Shambhu Nath Bose (son-in-law), Biswanath Bose (brother-in-law), Kanaklata Bose (mother-in-law)and Samarendra Nath Bose (father-in- law). (5) THE learned Trial Judge on perusal of the materials available under section 173, Cr. P. C. framed charges against the four accused persons under section 498a/34 and 304b/34 of the I. P. C. The prosecution examined 20 witnesses and upon recording of the evidence of the aforesaid witnesses the learned trial Court examined the accused persons under Section 313 of the cr. P. C. framed charges against the four accused persons under section 498a/34 and 304b/34 of the I. P. C. The prosecution examined 20 witnesses and upon recording of the evidence of the aforesaid witnesses the learned trial Court examined the accused persons under Section 313 of the cr. P. C. and recorded an order of acquittal of all the accused persons of the said charges. (6) BEING aggrieved with the judgment and order of the acquittal the state has preferred the appeal primarily on the ground that the findings of the learned Judge in the Court below were all perverse and the learned Judge misdirected himself to misappreciation of evidence of the witnesses, for it was not a case where evidence on record did really justify finding of not guilt of the accused persons. (7) BEFORE we proceed to consider whether the findings of the learned judge in the Court below were erroneous it is worthwhile to take stock of, in brief, the evidence of the prosecution witnesses. Of the 20 witnesses the oral testimonies of P. W. 1, Dipak Kumar Roy (father of the victim), P. W. 2, Smt. Manju Das (a neighbour of P. W. 1), P. W. 6, Kamala Roy (mother of the victim), p. W. 7, Meera Roy (a neighbour of P. W. 1), P. W. 10, Gopal Yadav (also a neighbour of P. W. 1), P. W. 12, Samar Roychowdhury (Chairman of the Borough committee) and P. W. 16, Samar Biswas an acquaintance of P. W. 1 merit consideration. (8) OF the remaining 13 witnesses P. W. 3, Dilip Kar is a witness to the seizure of kerosene jerrican, some burnt clothes, one match-box and a portion of skin of a human leg under a seizure list wherein he signed (Ext. 3/1). (9) P. W. 4, Dulal Kayal, an inhabitant of the locality where the accused reside had been to the house of the accused after hearing the incident and brought out the burnt body of the victim in assistance with Alok Bose, a brother of the accused Shambhu Bose and a neighbour Swapan Pramanick. (10) ALOK Bose is P. W. 14, while Swapan Pramamck is P. W. 13. P. W. 14, Alok Bose , though a prosecution witness is virtually a spokesman of the defence as he is no other than the brother of the accused Shambhu Nath bose. (10) ALOK Bose is P. W. 14, while Swapan Pramamck is P. W. 13. P. W. 14, Alok Bose , though a prosecution witness is virtually a spokesman of the defence as he is no other than the brother of the accused Shambhu Nath bose. He claims to have been residing separately at a distance of four other houses from the house of his father and having heard hue and cry he rushed to the house of his father and brought out the victim and took her to Vidyasagar hospital with the help of P. W. 4 and P. W. 13. This is barely formal but what he insists on is that a week before the date of the incident his father had left calcutta just to return three days after the incident, and further his brother-accused Shambhu Bose was on his duty at Ajanta Cinema and instructed to him to give information to P. W. 1 and other relations. He further gives the evidence that his mother had been suffering from serious types of bleeding very frequently. He closes his evidence in cross-examination saying that he never noticed any marks of injury on the body of the deceased. He claims to belong to a certain political party which P. W. 1, according to him, also belongs to. (11) P. W. 13, Swapan Pramanick also sails on the same boat as with p. W. 14 and says that having gone to the house of the accused the victim was found being carried by P. W. 14 and P. W. 4, that P. W. 14 lives in separate house detached from his father, and that he, P. W. 4 and PW. 14 took the victim to the hospital. He further says that when the victim was taken to the hospital the accused Shambhu Bose was on duty at Ajanta Cinema, and that he did not hear any trouble or any unrest in the family of the accused concerning the victim. (12) HOWEVER, P. W. 5, Suren Dutta is a witness to the seizure of wearing apparels of the deceased and other articles from the house of the accused. His evidence is not worth considering. (13) P. W. 8 similarly is a witness to the seizure of articles from the house of the accused. So also is P. W. 9, Jayanta Jana. His evidence is not worth considering. (13) P. W. 8 similarly is a witness to the seizure of articles from the house of the accused. So also is P. W. 9, Jayanta Jana. (14) P. W. 11, Bidyut Kumar Dey is a photographer who has taken photograph at the instance of the police of the room of the deceased. (15) P. W. 15, Narayan Chandra Sikdar drew up the formal FIR (Ext. 1), but with respect to his evidence in cross-examination to the effect that a back portion of the formal FIR was left blank, a lot of argument has been made to which we will advert to in the sequel. (16) P. W. 17, Rabindra Nath Mondal, A. S. I, of police held inquest on the body of the deceased and prepared a report (Ext. 2) on 29-10-1991. (17) DR. B. Kahali (P. W. 18) who held post mortem examination on the body of the deceased found "second and third degree burnt injuries with occasional heat rupture at place around the flexer aspects of the elbow and knee joints excepting a portion of the vault of scalp on the back, back of neck, lower anterior abdominal wall including the parennial region, both buttocks at places and both foot all around with a shoty blackening of the whole body with a smell like that of kerosene. " According to the surgeon the deceased was carrying only eight weeks and death in his opinion was due to the effects of burnt injuries which were all ante mortem in nature. In his cross- examination the doctor has said that except a mark of surgical injury present on the right ankle no other injuries or any marks of violence was noticed. (18) P. W. 19, Aloke Nath Samanta, a constable carried the dead body to the morgue for identification of the same before the doctor. (19) P. W. 20, Ramesh Chandra Burman is the I. O. of the case and his evidence shall be considered alongside the analysis of evidence of P. W. 1, p. W. 2, P. W. 6, P. W. 7, P. W. 10 and P. W. 12. (20) P. W. 1, the father of the victim says as follows : "on the day of boubhat in the house of the accused Samarendranath bose father-in-law of my daughter behaved with me very badly which I cannot forget. (20) P. W. 1, the father of the victim says as follows : "on the day of boubhat in the house of the accused Samarendranath bose father-in-law of my daughter behaved with me very badly which I cannot forget. He insulted me very badly only on the ground that on the following date of marriage menstruation of my daughter took place. In marriage I gifted gold ornaments of four to five bhories and other furniture and other marriage gifts. The father-in-law of my daughter pressed her necklace which I could not give but I assured him to give in future. The accused husband demanded steel almirah through my daughter. From my wife I learnt that my son-in-law accused samarendra Nath Bose started causing torture mentally and physically to my daughter. Other accused persons also caused torture upon my daughter and my son-in-law physically assaulted her. Two months after marriage when I had been there the accused father-in-law of my daughter demanded further money from me. He also threatened that he will not send my daughter to my house till I met the demands of necklace and other cash money. On my verbal assurance, they sent my daughter to my house along with my son-in law. I learnt from my daughter that she was subjected to serve types of tortures by her mother-in-law, father-in-law and debor Biswanath; and her husband used to assault her physically. During pujas my daughter and son-in-law came to my house. At that time I was bed ridden out of a motor accident. In my bed ridden condition my daughter informed me that if their demands of the earlier articles including one added colour T. V. not fulfilled within a shortest possible time shemay be murdered by them. I also noticed several marks or injuries on the person of my daughter. I also heard my daughter telling my wife that she was carrying that time. On the day before her death, I sent my son Biswajit roy and another Manju Das to bring her to my house. The mother-in-law and debor of my daughter refused to send her to me till I fulfil all the demands of them. On the following date I got on information that my daughter had already been admitted in Vidyasagar Hospital. The mother-in-law and debor of my daughter refused to send her to me till I fulfil all the demands of them. On the following date I got on information that my daughter had already been admitted in Vidyasagar Hospital. " (21) P. W. 2s house is at the intervention of 3 to 4 houses from the house of P. W. 1. It is her evidence as a neighbour that the victim Pratima told her that her parents-in-law and her husband as also the other members of the house used to create trouble with her on demand of dowry and concerning such demand physical torture was caused on her. On the day previous to the death of Pratima she and son of P. W. 1 were deputed to the house of the accused to bring her to her fathers house and Pratima told her that the members of her in-laws family perpetrated torture upon her on further demand of colour t. V. and one almirah, or else they would not allow her to go. Pratima was not sent back with them. Cross-examination of this witness consists of some suggestions to the effect that she did not go to the victims matrimonial home and that the victim did not tell her that she was subjected to torture in her in-laws house. (22) P. W. 6, the mother of the victim gives the following evidence : "during marriage we gifted gold ornaments of 4 to 5 bhories and other furniture, beddings, utensils etc. On Astomongala I met my daughter and son-in law in my house. My daughter placed one further demand of one almirah, as originated from accused Shambhu Bose. I expressed my inability to meet the demand at that time. I used to go to the matrimonial house of my daughter where I was seriously insulted by accused Samarendranath Bose and accused kanaklata Bose, parents of my son-in-law for some extra demand of dowry. I simply requested for time to fulfil their demands because at that time we were not able to give such dowries. My daughter was 19 years and 2 months at the time of marriage. One month after my daughter came to my house, on enquiry i learnt that my daughter was subjected to serious types of tortures both mentally and physically by the accused persons and was physically assaulted by accused Shambhunath Bose. My daughter was 19 years and 2 months at the time of marriage. One month after my daughter came to my house, on enquiry i learnt that my daughter was subjected to serious types of tortures both mentally and physically by the accused persons and was physically assaulted by accused Shambhunath Bose. She was not also given proper food and clothing and was treated like a maid. 3 to 4 days after my son-in-law took my daughter back to their home. During pujas when I went there to offer puja clothings the parents of the accused demanded some extra dowries first from me. On request during, pujas my daughter came to my house with her husband. At that time my daughter told that the accused persons further demanded one colour T. V. in addition to almirah. They also demanded another gold necklace, for ordinary use. My daughter informed me at that time that her menstruation had been stopped for the last 2 to 3 months. My daughter further told that till we meet the demand she would be subjected to torture by all the accused persons including her debor Biswanathbose who behaved with my daughter with filthy languages. Then I informed the matter to Samar Roychowdhury, Chairman of the Borough committes,who assured us to look after the case. My daughter went back. On 27. 10. 1991 sent my son Bishu Roy and another Manju Das to bring my daughter But my daughter was not allowed to come. I learnt from them that unless the aforesaid extra dowries are given they will not allow my daughter to come and my daughter was subjected there to severe torture by the accused persons including physical assault. On 28. 10. 91 two local people informed me that my daughter had been admitted in Vidyasagar Hospital. I went there and saw my daughter in burnt condition and my daughter was beyond identification due to such gravity of burning. On that very day my daughter expired by burning in hospital. " (23) CROSS-EXAMINATION of this witness is again a parade of suggestions exactly in the line of P. W. 1. (24) P. W. 7, also a neighbour of P. W. 1, says that the father of the victim gave her in marriage some gold ornaments including a necklace and other articles and furniture. " (23) CROSS-EXAMINATION of this witness is again a parade of suggestions exactly in the line of P. W. 1. (24) P. W. 7, also a neighbour of P. W. 1, says that the father of the victim gave her in marriage some gold ornaments including a necklace and other articles and furniture. The victim had been to her house whenever she would visit her fathers house and she came to know from her that the victim was subjected to torture by the accused persons on demand of articles, colour t. V. , almirah. It was put to the witness in cross- examination that the victim did not tell her anything and that he was deposing falsely. (25) EVIDENCE of P. W. 10, Gopal Jadav, another neighbour of P. W. 1 who was an invitee in the marriage of the victim with the accused Sambhu nath Bose says that in the marriage some gold and silver ornaments and furniture were given and that during the pujas of the year of 1991 when the victim came to his house she told him that she was subjected to torture by the accused persons on demand of colour T. V. and almirah, and saying so she burst into tears. It was only suggested to the witness in cross- examination that the deceased did not tell him anything. (26) EVIDENCE of P. W. 12, Samar Roychowdhury, Chairman of the borough Committee is extremely relevant in this that in the early part of October, 1991 the victims father P. W. 1 and his wife had been to his house with a complaint against the members of the matrimonial family of the deceased alleging that their daughter Pratima was being subjected to physical and mental torture on the demand of colour T. V. and almirah which were not fulfilled. He assured them of a peaceful settlement of the matter as he knew both the parties but by the end of October, 1991 he learnt that the daughter of P. W. 1 had been admitted in Vidyasagar Hospital and when he had been to the hospital at about evening Pratima had died. He assured them of a peaceful settlement of the matter as he knew both the parties but by the end of October, 1991 he learnt that the daughter of P. W. 1 had been admitted in Vidyasagar Hospital and when he had been to the hospital at about evening Pratima had died. It was suggested to this witness in cross- examination that the parents of the victim did not tell him that the accused persons were demanding a colour T. V. and almirah, and that he has some disputes with aloke Bose, son of Samarendranath Bose over some party affairs. The witness said in cross- examination that he did not state to the I. O. that father of Pratima had been to him with certain complaints regarding his daughter. (27) P. W. 16, Samar Biswas, an employee of Calcutta Telephones says that in the marriage which he attended presentations in the form of gold ornaments, furniture, utensils etc. were given and after marriage both Pratima and her husband came to his house. Pratimas parents told him about torture perpetrated upon their daughter and he advised for adjustment between the couple. (28) IN the context of the above evidence of the witnesses, the learned additional Sessions Judge reasoned as follows : (1) The statement of P. W. 1 in his evidence-In- chief that on the boubhat day the father-in-law of the victim insulted him severely on the allegation that the victim suffered menstruation on the next day of the marriage and charged him why he intentionally had fixed 4th July, 1991 as the date of marriage is a new claim, not alleged in the FIR and that the said evidence was not repeated by the mother of the victim, and had it been the truth then the mother of victim would also have been aware of such insult. The learned Judge reasoned that it is unbelievable that the parents of the victim would fix a date of marriage of the deceased on a day which just is a date before the actual date of marriage. Thus, the allegation of insult by the father of the accused Shambhu to P. W. 1 was doubtful. The learned Judge reasoned that it is unbelievable that the parents of the victim would fix a date of marriage of the deceased on a day which just is a date before the actual date of marriage. Thus, the allegation of insult by the father of the accused Shambhu to P. W. 1 was doubtful. (2) Unlike the evidence of P. W. 2, there is no allegation in the FIR that the accused Biswanath Bose, one of the sons of the accused samarendra Nath Bose also demanded dowry or caused torture upon the victim. (3) The evidence of P. W. 1 and P. W. 6 that the victim told him that the accused persons demanded a colour T. V. has not been mentioned in the FIR without any explanation. (4) Evidence of P. W. 1, P. W. 2 and P. W. 6 to the effect that P. W, 2 and Biswajit, the son of P. W. 1 were deputed to the matrimonial house of the victim to bring the victim back but they returned without the victim as the victim was not allowed to accompany them unless the dowry articles were given do not find any mention in the FIR, and thus, according to the learned Judge, this story has been subsequently manufactured by the prosecution in order to establish the case. (5) Learned Judge reasoned that P. W. 2 is a lady aged about 33 years, while the victim was only 19 years old and it was improbable that a 19 year old lady would tell a lady of 33 years about her "secret matrimonial matters". Further P. W. 2 was unable to identify the parents-in-law of the victim in Court. Thus, such visit of P. W. 2 to the house of the accused persons is unbelievable. (6) P. W. 6, the mother of the victim speaks of insult meted out to her by the accused persons on the Astamongala day over demand of articles, while the father of the victim P. W. 1 does not speak of such insult caused to P. W. 6. (7) The learned Judge reasoned that if the victim was not allowed to go to her fathers house, then how was it that the victim and her husband came during the Durga puja and stayed there for 3-4 days. (7) The learned Judge reasoned that if the victim was not allowed to go to her fathers house, then how was it that the victim and her husband came during the Durga puja and stayed there for 3-4 days. (8) It was the observation of the learned Judge that the mother of the victim claimed that she informed the Chairman of the Borough committee, P. W. 12 Samar Roychowdhury of the events of torture while P. W. 12 claimed that both the husband and the wife came and reported to him about the allegation of torture. (9) It was unnatural on the part of the victim to tell her woes to P. W. 7 who was 54 years old and that the said P. W. 7 is not a relation of the victim. (10) The learned Judge refused to believe the evidence of P. W. 10, gopal Jadav on the ground that he is a non-Bengali and it was unlikely that the victim would prefer to tell him about her misfortune. (11) Evidence of the Chairman of the Borough Committee, (P. W. 12)was disbelieved on the ground that as a respectable person and a local leader of a certain political party he did not take any steps to lodge complaint with the police station. (12) Learned Judge referred to the evidence of the doctor who held post-mortem examination and observed that the doctor did not find external or internal injuries other than the one on the body of the victim and this nullifies the claim of P. W. 1 to the effect that found signs of injury on the body of the victim. (13) Had the doctor who examined the victim soon after she was admitted in the hospital been examined it could be known as to whether victim was capable of making any statement before the doctor regarding her death. (14) Learned Judge observed that the bed head ticket has not been produced. (15) Since the case hinges on circumstantial evidence the circumstances could not be established. (14) Learned Judge observed that the bed head ticket has not been produced. (15) Since the case hinges on circumstantial evidence the circumstances could not be established. (29) BEFORE we proceed to examine the reasonings of the learned judge, vis-a-vis the oral testimonies of the witnesses we must say that as this is an appeal against judgment and order of acquittal we are quite conscious that we could be justified in setting aside acquittal only when we could be able to find out that the learned trial Court committed gross error in the appreciation of evidence and has taken into consideration inconsequential circumstances and it is only when such gross error and material irregularity are established that we would be justified in interfering with judgment of acquittal. In this connection we can profitably refer to the decision in Narinder Singh v. State of Punjab, 2000 Cr LJ 3462 (SC) where their Lordships held that it is quite true that appeals from acquittals are allowed in exceptional situations and the appellate Court can reappreciate the evidence of the witnesses if the evidence of the material witnesses has been discarded on wrong reasons. (30) THE marriage of the victim took place on 4th of July, 1991 and the victim died an unnatural death in the matrimonial home on 28th October, 1991 when she had been carrying for three months. Thus, the matrimonial life of the victim lasted for a period of four months and not more than that. (31) BEFORE proceeding to analyze the evidence of the witnesses we are reminding ourselves of the legal position obtaining in the given situation. Unquestionably, the victim died an unnatural death within four months from the date of her marriage and in the context of the allegations that the victim was subjected to torture and cruelty on demands of dowry the following questions have to be addressed to: (A) Whether the accused has committed the dowry death of the victim ? (B) Whether the victim was subjected to cruelty or harassment by her husband or his relative ? (C) Whether such cruelty and harassment was for, or in connection with, any demand for dowry ? (D) Whether such cruelty or harassment was soon before her death ? (B) Whether the victim was subjected to cruelty or harassment by her husband or his relative ? (C) Whether such cruelty and harassment was for, or in connection with, any demand for dowry ? (D) Whether such cruelty or harassment was soon before her death ? (32) AS has been laid down in Kalyyaperumal v. State of Tamil Nadu, air 2003 SC 3828 : 2003 C Cr LR (SC) 1016 and also Yashoda v. State of madhya Pradesh, (2004)3 SCC 98 : 2004 C Cr LR (SC) 624, there must be existence of a proximate and live-link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequences. It has been the law settled therefore that the determination of the period which can come within the term soon before is left to be decided by the Courts depending upon facts and circumstances of each case and the expression soon before would normally imply that the interval should not be much between cruelty or harassment and the death in question. " (33) UNQUESTIONABLY, the disclosure of the victim made to her parents before her death which took place within four months of her marriage concerning allegation of torture on demand of dowry cannot but be soon before her death having regard to the fact that the span of the matrimoniat life was, as said above, only for a period of four months. The learned Judge in the Court below in major part of the judgment pointed out omissions of certain pieces of statement of the witnesses in the FIR and those omissions according to the learned Judge tend to show that the statements on oath of the witnesses were only afterthought. Now, the FIR is neither cryptic nor a lengthy one. In the FIR the father of the victim (P. W. 1) has alleged torture caused by the accused person upon his daughter very frequently on demand of money, almirah, necklace, etc. Whenever his daughter would come to him she would tell him about such torture and being compelled he had been to the matrimonial home of his daughter and met her in- laws but he was threatened. Whenever his daughter would come to him she would tell him about such torture and being compelled he had been to the matrimonial home of his daughter and met her in- laws but he was threatened. There was torture perpetrated by all the in-laws upon his daughter, and on 28th October, 1991 he was informed through his maternal uncles house that his daughter had been admitted in the hospital being burnt. We ask ourselves: Does this FIR lack any material events or particulars? It is not that P. W. 1 has introduced the story of torture and demand of dowry for the first time in her evidence or that the FIR was in a different tune. We find from evidence of P. W. 1 an elaboration of what has been stated in the FIR. It cannot be gainsaid that an FIR cannot be supposed to be the replica of the proposed evidence. In the evidence of P. W. 1 it has transpired unassailably that the father-in-law of his daughter pressed him for a necklace which he could not give before marriage but he assured of such presentation in future. The husband of the victim demanded a steel almirah through his daughter. His daughter narrated to her mother that Shambhu had been causing torture upon her physically and mentally and other accused persons also joined him in such ill treatment and torture. Further it appears that two months after marriage when he had been to the house of his daughters matrimonial house the father-in-law of his daughter demanded more money. This evidence is already there as a piece of allegation in the FIR. It is in the evidence of P. W. 1 that he was threatened that his daughter would not be sent to his house till demands of necklace, money and other articles were fulfilled. Once on his verbal assurance they sent back his daughter along with his son-in-law but his daughter told him that she was being subjected to severe type of torture. During the pujas he became bed ridden following a motor accident. His daughter and son-in-law came and then his daughter told him that if the demand of the articles and a colour T. V. were not fulfilled her life would be at stake. The learned Judge reasoned that the story of colour T. V. was not in the fir. During the pujas he became bed ridden following a motor accident. His daughter and son-in-law came and then his daughter told him that if the demand of the articles and a colour T. V. were not fulfilled her life would be at stake. The learned Judge reasoned that the story of colour T. V. was not in the fir. It has further come out from evidence that on the date before her death p. W. 2 and Biswajit were sent to the house of the accused persons to bring his daughter but she was not sent. We have noticed that despite a somewhat lengthy cross-examination of this witness the basic fabric of the prosecution case as has been alleged in the FIR and as translated in evidence of P. W. 1, p. W. 2 and P. W. 6 as also P. W. 12 could not be demolished. Suggestions after suggestions were put to the witness and the trend of cross-examination was confined to bring a picture as to what was told in the evidence and what was not told in the FIR. If the success of prosecution case depends upon disclosure of the entire evidence of all the prosecution witnesses in the FIR in advance then we are afraid, no criminal case can be proved. This is not the sanction of the law. The law demands that there must not be any material omission in the fir which in the instant case has not been omitted. The evidence of P. W. 6 we have narrated in details and we are unable to say that her evidence which is so vibrant and vivid was not sufficient to support the prosecution charges. P. W. 12 is a most important witness, for he is a councillor of Calcutta corporation and also the Chairman of the Borough Committee as also admittedly a respectable person of the locality. It is his evidence that P. W. 1 and P. W. 6 came to his house with the complaint against the members of the matrimonial home of their daughter to the effect that their daughter was subjected to physical and mental torture on demands of colour T. V. , almirah which were not fulfilled. He assured them of a settlement but meanwhile the victim died an unnatural death by burning. He assured them of a settlement but meanwhile the victim died an unnatural death by burning. (34) THE observation of the learned trial Court that the evidence of P. W. 1 that on the occasion of boubhat when he had been to the house of the accused persons he was insulted on the charge that the marriage was arranged on a date following which the victim had suffered menstruation and that he could not forget such insult was not mentioned in the FIR appears to be totally erroneous. This was not a fact in issue. The fact in issue was whether the victim died dowry death within the meaning of Section 304b of the I. P. C. Absence of mention of the insult on the ground of menstruation of the girl just a day after marriage is not at all a matter of significance. Besides, such a piece of statement of the father of the girl can not by earthly reason be said to be a figment of imagination of P. W. 1. Such a disclosure was really not necessary in the FIR. (35) THE observation of the learned Judge that the story of demand of colour T. V. was not included as one of the demands of dowry in the FIR and it vitally affected the prosecution case is purely untenable. Dowry demands have been alleged in the FIR quite adequately and they included, as per the FIR, gold ornaments in the form of a necklace, almirah and cash. Colour T. V. as we find from the evidence of P. W. 1 was not the original demand and it came to be in added item which was known to P. W. 1 when the victim came to his house only during the pujas. Absence of mention of demand of colour T. V. in the FIR cannot surety be the ground of negation of the prosecution case. If according to the learned Judge, as the judgment tends to show, every piece of evidence on oath should have been found a berth in the FIR then, as we noticed earlier, that would be against the spirit of the law. (36) THE observation of the learned Judge that the victim being only 19 year old could not tell her secret matrimonial matters to P. W. 2 is unacceptable. (36) THE observation of the learned Judge that the victim being only 19 year old could not tell her secret matrimonial matters to P. W. 2 is unacceptable. There was no secret in the matrimonial life of the victjm and P. W. 2 is a neighbour of P. W. 1. It is rather quite probable that as a lady neighbour the victim who is also a lady and was suffering from mental agony would tell her woes to P. W. 2. (37) THE learned Judge reasoned that if P. W. 2 had gone to the matrimonial house of the victim with Biswajit he could have been able to identify the parents-in-law of the victim in Court but in Court the P. W. 2 could not identify the parents-in-law of the victim. The incident happened in October 1991. The visit of P. W. 2 along with Biswajit to the house of the appellants took place some time between 4th July, 1991 and the date of death of the victim which was 28th October 1991. P. W. 2 gave evidence in Court in July 1994. It may not possible for her after a considerable period of time to identify the parents-in-law of the victim in Court and there was nothing unusual in it. The matter of the fact is that it is hard to disbelieve that P. W. 2 did not go to the house of the victim with Biswajit to bring back Pratima. Her evidence has been corroborated by P. W. 1 and P. W. 6. Cross-examination of P. W. 2 could not demolish her evidence regarding her visit to the matrimonial house of the victim. (38) SIMILARLY, the reasoning of the learned Judge that it was quite improbable for victim to tell her woes to P. W. 7 on the ground that P. W. 7 was 54 year old and is not a relation of the victim is equally faulty. It appears that p. W. 7s house and the house of the P. W. 1 are intervened only by two houses and P. W. 7 had a frequent visiting term to the house of P. W. 1. There was nothing unusual on the part of the victim to tell her mental stress and strain to p. W. 7, the difference in age between the two being of no consequence. There was nothing unusual on the part of the victim to tell her mental stress and strain to p. W. 7, the difference in age between the two being of no consequence. (39) THE observation of the learned Judge that the mother of the victim claimed that she informed the Chairman of the Borough Committee about ill treatment and torture upon her daughter by the appellants, while P. W. 12 claims that both the husband and the wife came and reported to him about such ill treatment is unacceptable. This is not really a contradiction. Evidence of P. W. 12 is eloquent enough to reveal that he was told by the victims parents about ill treatment and torture meted out by the appellants upon the victim. I. O. (P. W. 20) says that P. W. 12 told him that mother of the victim had been to him to lodge complaint against the appellants. (40) THE learned Judge refused to believe the evidence of P. W. 10 simply on the ground that he is a non-Bengali. This is not a ground at all. P. W. 10 is a neighbour of P. W. 1. Both P. W. 10 and P. W. 1 have visiting term to each others house. P. W. 10 was an invitee in the marriage. In such situation it is difficult to say that P. W. 10 was telling a lie that during pujas of 1991 the victim came to his house for a visit and told him that she had been subjected to torture on demand of colour T. V. and almirah, and saying so she burst into tears. Evidence of the I. O. does not reveal that P. W. 10 did not tell the I. O. what he had stated before the Court. (41) THE reasoning of the learned Judge as to why P. W. 12 being a respectable person did not take any step to lodge complaint with the police station is not a reason at all to be reckoned with. (42) LEARNED Judge referred to the evidence of the doctor who held post-mortem examination and observed that no external or internal injury other than the one which he found, and this belies the claim of P. W. 1 that he found signs of injury on the body of the victim. This is not a ground at all for recording an order of acquittal. This is not a ground at all for recording an order of acquittal. It is not a case of murder. The victim committed suicide. P. W. 18 Dr. B. Kahali found second and third degree burnt injuries on the body of the deceased who was carrying then only for 8 weeks. Absence of external or internal injury at the time of holding post mortem examination leads us nowhere. (43) IT is nobodys case that the victim made any dying declaration or any kind of statement before the doctor or any person who was present with him in the hospital. The case is not based on a dying declaration. The learned judge lamented that if the doctor who examined the victim soon after she was admitted in the hospital had been examined in Court it could be known as to whether victim was capable of making any statement regarding her death. This is not a reasoning at all. The evidence wnch is not there cannot be demanded for analysis of the prosecution case. Oral evidence of the witnesses clearly depict a picture of perpetration of torture on the victim by the appellant on demand of dowry. The matrimonial life lasted only for a period of four months. In the circumstances, non-seizure of bed head ticked is also absolutely immaterial. (44) THE observation of the learned Judge that the case hinges on circumstantial evidence is unacceptable. There is clear, direct and positive evidence of torture on ground of dowry. It is not that the prosecution case hinges on circumstantial evidence. (45) WE find that the learned trial Court recorded order of acquittal purely on immaterial considerations by overlooking the positive evidence of P. W. 1, p. W. 2, P. W. 6, P. W.7, P. W. 10 and P. W. 12. All these witnesses have stood the test of cross-examination no amount of which could shake their veracity and learned Judges reasonings for disbelieving their testimonies are absolutely untenable. (46) THE defence ventured to put forward a case by throwing suggestion that the victim wanted to marry Swapan Biswas son of Samar Biswas (P. W. 1), and her marriage with the appellant Sambhu was against her wish. Such a wild allegation remaining far from being proved itself is a pointef to illtreatment and cruelty. (46) THE defence ventured to put forward a case by throwing suggestion that the victim wanted to marry Swapan Biswas son of Samar Biswas (P. W. 1), and her marriage with the appellant Sambhu was against her wish. Such a wild allegation remaining far from being proved itself is a pointef to illtreatment and cruelty. (47) WITH respect to P. W. 15 keeping back portion of the FIR blank, it is sufficient to say, the complainant was written on the back portion of the FIR. (48) AS held in Yashoda and Anr. v. State of M. P. reported in 2004 scc (Cr) 671 : 2004 C Cr LR (SC) 624, since the victim died an unnatural death and that too within 7 years of her marriage the onus is on the defence to rebut the presumption arising out of Section 113 (b) of the Evidence Act. Here the victim died within four months of marriage and presumption arising out of the aforesaid Section of the Evidence Act could not be rebutted. When the victim dies an unnatural death in her matrimonial home the in-laws of the family have an obligation to explain under what circumstances the victim died. In evidence or in examination under Section 313, Cr. P. C. we do not find that any attempt has been made to explain as to under what circumstances the victim died. Reference may be made to the decision in Ganesh Lal v. State of rajasthan, reported in (2002)1 SCG 731. (49) IN the circumstance, we are unable to hold that the learned trial judges judgment and order are lawful and based on evidence on record. (50) SO far as the respondent Biswanath Bose is concerned, we find that there is not so much of evidence against him and his acquittal may be maintained. (51) AS regards Kanaklata Bose she died during pendency of the appeal and the judgment does not affect her. Evidence against Shambhu Nath Bose, the husband of the victim and Samarendra Nath Bose are clinching. Evidence of P. W. 14, Aloke Bose that his father Samarendra Nath Bose had left Calcutta and returned three days after the incident is merely an alibi. It has not been proved. Evidence against Shambhu Nath Bose, the husband of the victim and Samarendra Nath Bose are clinching. Evidence of P. W. 14, Aloke Bose that his father Samarendra Nath Bose had left Calcutta and returned three days after the incident is merely an alibi. It has not been proved. Even his temporary absence does not wipe out the charge under sections 498a and 304b of the I. P. C. because of the fact that torture has been consistent and persistent at the hands of the husband and the father-in-law. (52) THEREFORE, we allow the appeal in part. The respondent Shambhu nath Bose and Samarendra Nath Bose are found guilty of the charges under section 498a read with Section 34 of the I. PC and Section 304b read with section 34 of the I. P. C. (53) THE respondents Shambhu Nath Bose and Samarendra Nath Bose are sentenced to suffer R. I. of three years on account of the charge under section 498a read with 34 of the I. P. C. and to pay a fine of Rs. 1,000/- each in default to suffer further R. I. of three months under Section 498a/34, I. P. C. (54) THE respondent Sambhu Nath Bose is sentenced to suffer R. I. for 10 years on account of the charge under Section 304b of the I. P. C. (55) HAVING regard to the age of the respondent Samarendra Nath Bose he is sentenced to suffer R. I. for 7 years on account of the charge under Section 304b of the I. P. C. The sentence of both the respondent would run concurrently and are subject to Section 428, Cr. P. C. (56) THE appeal as against Kanaklata Bose abates by virtue of her death during the pendency of the appeal. (57) THE respondent Biswanath Bose is found not guilty of the charge under Section 498a/304b of the I. P. C. and are acquitted of the charges under section 235 of the Cr. P. C. (58) THE respondents Shambhu Nath Bose and Samarendra Nath Bose who are on bail shall surrender to the learned trial Court within a month from the date of this order to serve our the sentence failing which the learned trial court will take appropriate steps for their apprehension so as to have the sentence executed in accordance with law. Their bail bonds are cancelled. Their bail bonds are cancelled. (59) LCR along with a copy of, the judgment be sent down to the learned trial Court for information and necessary action. (60) THE learned Registrar General of this Court is directed to communicate forthwith operative part of the judgment to the concerned learned trial Court under Rule 8 Chapter XI of the Appellate Side Rules of this Court for information and necessary action.