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2009 DIGILAW 615 (GAU)

Sandip Kumar Bucha v. State of Assam

2009-08-27

P.K.MUSAHARY

body2009
JUDGMENT P.K. Musahary, J. 1. Heard Mr. J.M. Choudhury, learned senior counsel assisted by Mr. M.H. Choudhury, learned Counsel for the appellant. Also heard Mr. K. Munir, learned Addl. P.P. Assam. 2. The appellant challenges the judgment and order dated 8.8.2008 passed by the learned Sessions Judge, Morigaon in Sessions Case No. 26 of 2006 convicting and sentencing the appellant to undergo R.I. for 2 years and a fine of Rs. 3,000 in default, further R.I. for 3 (three) months under Section 498A IPC. 3. Briefly stated, the prosecution case is that, on 22.6.2005 one Dhanraj Sipani lodged an FIR with the Morigaon P.S. alleging that on 21.6.2005 at about 1.00 P.M. his daughter entered inside the bath room for taking bath and she poured kerosene on her body and set fire on herself which resulted into her death. The informant's deceased daughter, Madhu, married to the accused/appellant on 23.4.2000 at Guwahati. In the FIR it is alleged that initially for 6 months accused did not maintain any physical relation with his deceased wife which was reported to the parents who in turn asked her not to be worried about it." In the meantime Madhu had mothered two children and disliking of her mother-in-law towards her had become manifest and she found fault with Madhu on family matters regarding doing of the hose hold works. The result was that Madhu's position, in her marital home, was even downgraded to that of a servant and on the other hand, Sandip, husband of Madhu, used to return home at 11/12 night after being drunk and he used to harass Madhu in different ways which is beyond any description. Unable to bear the torture, she made frequent telephone calls to her home. In addition to that, Sandip used to threaten her that he would marry another girl and he used to display the photographs of those girls to Madhu. Further he demanded a car from her family. In the month of June, the family of Sandip went to Rajasthan and in their absence, the torture and harassment of Sandip on Madhu increased. Even from Rajasthan, the mother-in-law of Madhu abused her over telephone. She was not allowed to come out of the house. Prior to few days of the incident, unable to bear the torture and harassment, Madhu again made telephone calls to her parents. Even from Rajasthan, the mother-in-law of Madhu abused her over telephone. She was not allowed to come out of the house. Prior to few days of the incident, unable to bear the torture and harassment, Madhu again made telephone calls to her parents. On the day of incident also, at about 1230 hours, Madhu made telephone call to his father and conveyed him that she was not willing to live in this world any more, and consequently, leaving the two children, she left this world. 4. On the basis of the aforesaid FIR a crime being Morigaon P.S. Case No. 100 of 2005 was registered under Section 304B IPC. The police on completion of the investigation submitted charge sheet under Section 304B IPC against the accused/appellant. The case was committed to the court of learned Sessions Judge, Morigaon. 5. Initially the learned Sessions Judge framed charge against the accused/appellant under Section304B IPC but subsequently, on furnishing of other materials charge under Section 306 IPC was added. The accused/appellant pleaded not guilty and claimed to stand trial. 6. The prosecution in order to establish the charge against the accused/appellant examined as many as 15 witnesses including the Medical Officer and the Investigating Officer. No evidence was adduced by the defence. After conclusion of the trial and on consideration of evidence and materials on record, the learned trial court convicted and sentenced the appellant as stated earlier. 7. Mr. J.M. Choudhury, learned senior counsel appearing for the appellant places the evidence of PW1 Shri Dhiraj Sipani (father of the deceased), PW5 Shri Sandip Sipani, brother of the deceased, and PW12 Shri Askasan Sipani, uncle of the deceased. It is submitted that from the evidence of the aforesaid witnesses, the charger framed against the appellant has not been established. No claim for dowry from the house of the husband of the deceased or his parents or relations has also been established. 8. Mr. Choudhury, learned senior counsel also places the evidence of PW8 Shri Rajesh Bhandari, a neighbour and PW14 Kumari Dulari Das, maid servant, of the accused/appellant. It is submitted that the accused/appellant was not present in his house at the time of the occurrence. This evidence has been found from the deposition of PW8 and PW14. Ramesh Bhandari PW8, stated that some smoke was coming out from the bath room where the incident took place. It is submitted that the accused/appellant was not present in his house at the time of the occurrence. This evidence has been found from the deposition of PW8 and PW14. Ramesh Bhandari PW8, stated that some smoke was coming out from the bath room where the incident took place. He rushed to the said bath room and called the deceased. As there was no response from inside he broke open the door and found her (deceased) being burnt and lying on the ground in an almost dead condition. He then informed the deceased's husband (appellant) over phone at his cloth shop. PW14, maid servant corroborated the evidence of PW8. She also stated that PW8 informed the accused/appellant over phone. According to this witness, there were no other person in the house except the minor child at the time of occurrence. From the evidence of this witness it has also been found that the parents of the accused/appellant were away to Rajasthan. PW15, Shri Bhupen Kumar Sarma is the Investigating Officer of the case. According to him initially an unnatural death case was registered and on receipt of the FIR the aforesaid case was registered. He visited the place of occurrence immediately and recorded the statements of some witnesses. He also seized one kerosene gallon with a match box and some burnt macthstick vide Exibit-6. He forwarded the dead body of the deceased to the Civil Hospital, Morigaon for conducting post-mortem examination. During the course of investigation, he collected post-mortem report. According to the opinion of Dr. A.T.M. Eusuf PW13, the cause of death was due to shock, collapse and coma leading to cardio-respiratory failure following 100% burn and the death was instantaneous. From the medical evidence, it appears that the deceased received 100% burn injuries and she died out of the said injuries. 9. The prosecution also examined Shri Timir Bora PW10 and Sandip Tosniwal PW11 as witnesses of the locality. According to these neighbour witnesses, the relation between the deceased (wife) and the accused/appellant (husband) was all along good. There was no evidence from the parents of the deceased that the deceased and the accused had strained relation. 10. Considering the aforesaid materials made available on record, according Mr. According to these neighbour witnesses, the relation between the deceased (wife) and the accused/appellant (husband) was all along good. There was no evidence from the parents of the deceased that the deceased and the accused had strained relation. 10. Considering the aforesaid materials made available on record, according Mr. Choudhury, learned senior counsel, the accused appellant cannot be held liable under Sections 304B and 306 IPC inasmuch as the prosecution has failed to prove the case that the accused/appellant, on demand of dowry, tortured the deceased physically or mentally after the marriage and before the alleged occurrence took place. According to him, it was purely a case of suicide and the accused/appellant had no hand at all in it as it has been proved sufficiently that he was at his shop at the time of occurrence and he came to the spot only when he was informed over telephone by PW8. 11. Mr. K. Munir, learned Addl. P.P., Assam supporting the conviction and sentence, submits that some evidence have been found to the effect that the accused/appellant immediately after the marriage abstained from physical relation with her deceased wife for some months and he had been found returning home being drunk in the late night and it amounts to cruelty within the meaning of Section 498A IPC. 12. I have carefully examined the evidence of the prosecution witnesses. Regarding temporary suspension of physical relation with his wife, in my considered view, it has nothing to do with the death of the deceased as because it was just at the initial stage of the marriage and subsequently, out of wedlock, two children were born and they were maintaining them well. The evidence as regard the allegation of returning home in the late night, being drunk, there is no evidence to the effect that he habitually used to come in the late night in such state. It may be on some occasions, but nothing has been proved that he was a habitual drunkard for which the deceased's wife was disturbed or she was found to be tortured physically or mentally. During her lifetime she did not report about dowry demand to her parents or relations. It may be on some occasions, but nothing has been proved that he was a habitual drunkard for which the deceased's wife was disturbed or she was found to be tortured physically or mentally. During her lifetime she did not report about dowry demand to her parents or relations. In absence of any evidence to the effect that the appellant was in the habit of excessive drinking of alcohol, it would not be fair to come to the conclusion that he was torturing his deceased wife mentally or physically. Moreover, in the evidence of PW1, father of the deceased and PW5, the brother of the deceased, it is not found that the deceased ever reported them about any physical or mental torture meted on her in a drunken condition. It has already been found from the evidence of PWs 8 and 14 that the appellant was not present in his residence at the time of occurrence and he came to the place of occurrence only when he was intimated over telephone. His absence at the time of occurrence having been proved, the involvement of the accused/appellant cannot be imported by any presumption. 13. The word cruelty under Section 498A IPC within explanation (a) covers any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman. No such material has been found to hold that the accused/appellant conducted in such a manner which has compelled the deceased to commit suicide. The deceased was never found to have been tortured physically or mentally or she was ever driven out from the house of the appellant. There is no evidence to the effect that she was kept in starvation or under some condition causing danger to her life, limb or health. Again as per explanation (b) cruelty would mean harassment of the woman where such harassment is with a view to coercing her for 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. Again as per explanation (b) cruelty would mean harassment of the woman where such harassment is with a view to coercing her for 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. As already discussed earlier, there is no evidence of torture/demand or some unlawful demand or claim for any property or any valuable security from the parents of the deceased. 14. On consideration of the evidence on record and the materials made available in the case record and the position of law, I fail to persuade myself to agree with the conclusion arrived at by the learned trial court in convicting and sentencing the accused/appellant in the manner indicated in the impugned judgment and order. The evidence on record are not sufficient to record any order of conviction and sentence against the accused/appellant and under such circumstances, I hold that the accused/appellant is entitled to get the order of acquittal. 15. In view of the aforesaid discussions, I set aside the impugned conviction and sentence recorded vide impugned judgment and order dated 8.8.2008. The appeal stands allowed. The appellant is set at liberty forthwith, if his further detention is not required in connection with any other case. 16. Send down the L.C.R. forthwith. Appeal allowed.