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2009 DIGILAW 769 (GAU)

Tarani Das v. State of Assam

2009-11-04

HRISHIKESH ROY, RANJAN GOGOI

body2009
JUDGMENT Hrishikesh Roy, J. 1. Heard Mr. A.R. Medhi, Learned Counsel for the appellants and Mr. D. Das, learned Public Prosecutor representing the State. 2. This appeal has been presented to challenge the judgment and order dated 25.11.2003 rendered by the learned Ad hoc Additional Sessions Judge, Kamrup in Sessions Case No. 62(K) of 2001 whereby the appellants have been found guilty of the offence under Section 304B, IPC and have been sentenced to suffer rigorous imprisonment for life. 3. We are informed that the appellant No. 1 Tarani Das has died during the pendency of this appeal and, accordingly, the appeal in so far as the appellant No. 1 Tarani Das is concerned, stands abated. 4. The prosecution case as revealed by the First Information Report lodged by PW1, Kamakhya Sarkar is that the informant's niece Smt. Ruma Das (the deceased) who was married to the appellant No. 2 Arup Das, son of the appellant No. 1 Tarani Das while sleeping at her home at 11. p.m. of 7.5.2000 caught fire and from the burn injuries suffered by her, she died at about 11 a.m. the next day, i.e., 8.5.2000 at Guwahati Medical College and Hospital where the deceased was taken for treatment. On the basis of the aforesaid FIR, Khetri P.S. Case No. 74 of 2000 was registered and the investigation was set into motion. On conclusion of the investigation, the police charged the two appellants with the offence punishable under Section 304B, IPC for the unnatural death of Smt. Ruma Das, caused by burn injury, within seven years of her marriage. 5. The case being exclusively triable by the court of Sessions, was committed to the court of the learned Sessions Judge, Kamrup for trial. During trial as many as fourteen witnesses were presented from the side of the prosecution, whereas, no witness was produced by the defence. 6. From the evidence of the doctor (PW13) who conducted the post mortem examination on the body of the deceased, it appears that the deceased suffered severe burn injuries in approximately 90% of the total body surface area. In the opinion of the doctor, as recorded in the post mortem report, the cause of death was shock resulting from ante mortem injuries sustained by the deceased. 7. In the opinion of the doctor, as recorded in the post mortem report, the cause of death was shock resulting from ante mortem injuries sustained by the deceased. 7. From the evidence of the witnesses, it is clear that the incident occurred four years after the marriage of the deceased with the appellant No. 2. 8. As the appellants have been convicted for an offence under Section 304B, IPC which is a dowry death offence, it would be appropriate to subject the evidence to scrutiny in the light of the requirements of the said section. Under Section 304B, IPC where the death of a woman is caused by burning within seven years of her marriage and it is shown that before her death she was subjected to cruelty by her husband or other relatives of the husband in connection with any demand for dowry, such death shall be called a dowry death and such husband or relatives shall be deemed to have caused her death. 9. We find in this case that the death by burning occurred within seven years of deceased's marriage. In such circumstances, two of the ingredients required for the deeming provision under Section 304B, IPC to come into play are present here. Now, the evidences have to be scrutinized to see whether there is any material to show that the deceased was subjected to cruelty or harassment by her husband or other members of her husband's family in connection with any demand for dowry as only then, the third condition for sustaining the conviction under Section 304B, IPC could be said to be fulfilled. 10. PW1, Kamakhya Sarkar who set the investigation into motion by filing the FIR and who is related to the deceased, stated that he was unaware of any quarrel between the accused and the deceased. In his cross-examination, he stated that he was not aware as to the reason for the occurrence. He further stated that he had good rapport with the family of the appellant No. 1. 11. PW2, Narendra Bhowmik stated that the appellant and the deceased had been married for four years. He, however, acknowledged that he was not aware of any quarrel between the deceased and the accused or his family members. 12. PW3, Smt. Pranita Das and PW4, Smt. Kiran Das are the sister-in-laws of the deceased. 11. PW2, Narendra Bhowmik stated that the appellant and the deceased had been married for four years. He, however, acknowledged that he was not aware of any quarrel between the deceased and the accused or his family members. 12. PW3, Smt. Pranita Das and PW4, Smt. Kiran Das are the sister-in-laws of the deceased. They were present in the house of the accused on the night of the incident. PW3 stated that at about 11. p.m. they heard the cry of the deceased and when she entered the room of the deceased she saw that the deceased was burning by fire and was sitting on the ground. On being queried, the deceased informed the witness that she does not how the occurrence happened and that it was her fate. In her cross-examination, this witness stated that the husband Arup Das (appellant No. 2) suffered burn injuries on his hands as he tried to save the deceased. The witness also stated that the accused had never tortured the deceased. PW4, the other sister-in-law of the deceased also reached the room of the deceased on hearing her cries. She stated that the deceased stated to her that the fire was self inflicted. The witness further stated that the deceased and the accused had good rapport with each other. 13. PW5, Sukamal Das is the Secretary of the Village Defence Party of Gurung village and is a neighbour of the accused. He expressed his ignorance about any quarrel or fight between the accused and the deceased and also stated that he never heard of any harassment meted out to the deceased by the family members of the accused. 14. PW6, Akhil Bhowmik is another neighbour of the accused who stated that when he asked the deceased as to how she caught fire, the deceased replied that she did not know how the occurrence took place. This witness also stated that the deceased did not give any reply when he asked her as to whether someone had set her on fire. PW6 further stated that as far as he knew there is no quarrel between the accused and the deceased. He also deposed about seeing the burnt hands of the husband (accused) which got burnt while trying to extinguish the fire on the deceased. 15. PW6 further stated that as far as he knew there is no quarrel between the accused and the deceased. He also deposed about seeing the burnt hands of the husband (accused) which got burnt while trying to extinguish the fire on the deceased. 15. PW7, Haliram Bora was the Investigating Officer who visited the place of occurrence soon after information was received at the Khetri Police Station where he was the Officer-in-Charge. He arrested the accused and submitted charge sheet against them. 16. PW8, Ranoj Borkataki was the duty Magistrate who prepared the inquest report of the body of the deceased. 17. PWs 9, 10 and 11 are the brother, father and mother of the deceased. PW9, Ranjit Roy stated that 4/5 months after their marriage, the deceased and the accused visited his residence at Nagaon. He deposed that his younger sister told that the accused used to torture and assault the deceased. However, in his cross-examination he stated that he does not know how the deceased caught fire or who set her on fire and he has not seen anything. PW10 Biswa Nath Roy is the father of the deceased who stated that prior to her death, the deceased was tortured by her husband and her husband's parents for not giving dowry. In his cross-examination, PW10, however, stated that after marriage his daughter and son-in-law visited their home on several occasions and there was good rapport between both the families. PW11 Smt. Kamala Roy is the mother of the deceased who stated that the husband and the in laws of the deceased used to harass and torture the deceased for not giving dowry. But, surprisingly in her cross-examination, the witness stated that before her death the deceased had never demanded anything from her. That no demand had been made by the husband (accused) was also deposed to by this witness. 18. PW12 is another neighbour of the accused. He rushed to the house of the accused on hearing hue and cry and found the deceased lying and the mother-in-law giving her water. The witness stated that on being asked the deceased stated that it was her ill-fate that she got burnt. In his cross-examination, PW12 stated that he had visiting terms with the family of the accused and had never seen the deceased having any quarrel with her husband or with other family members. 19. The witness stated that on being asked the deceased stated that it was her ill-fate that she got burnt. In his cross-examination, PW12 stated that he had visiting terms with the family of the accused and had never seen the deceased having any quarrel with her husband or with other family members. 19. PW14 is the policeman on duty at the hospital and he accompanied the Magistrate during the inquest enquiry. 20. From the evidence of the witnesses, as noticed above, we find that nothing has come to light as to the circumstances under which the deceased was set on fire. No witness and even the deceased herself had not implicated anyone of setting fire on her. The third ingredient of Section 304B, IPC with regard to cruelty and harassment arising out of dowry demand is projected only by the brother, father and the mother of the deceased. The evidence of the witnesses who are related to the accused, namely PW3 and PW4, on the other hand, indicates that the deceased and the family of the accused had cordial relationship and there was no torture meted out or any dowry demand made by the family of the accused upon the deceased. 21. Since conviction for dowry death has to satisfy the ingredient of demand for dowry and harassment and cruelty meted out to the wife prior to her death through such demand, it would be of vital necessity for this Court to conclude beyond any reasonable doubt that in fact dowry demands were made by the accused and his family members and that the deceased was subjected to cruelty and harassment in connection with such dowry demand. We have already noticed that while the father and the mother of the deceased (PWs10 and 11) have claimed that the deceased was tortured for not giving dowry, in their cross-examination, the mother stated that her daughter or son-in-law never demanded anything from her. Even the father stated that that there was good rapport between both the families. We have already noticed that while the father and the mother of the deceased (PWs10 and 11) have claimed that the deceased was tortured for not giving dowry, in their cross-examination, the mother stated that her daughter or son-in-law never demanded anything from her. Even the father stated that that there was good rapport between both the families. The evidence of PW9 about torture by the husband on the deceased does not relate such torture to any dowry demand and, in any case, the allegation of torture correspond to a period 31/2 years prior to the date of incident and there is no evidence given by the said witness that such torture or assault persisted in the months and years immediately preceding the death of the deceased. 22. Between the two versions of the evidence, i.e., the evidence from the family members of the deceased and that of the accused, we have to resolve as to which version is more creditworthy as that will determine as to whether the third crucial ingredient for an offence of dowry death, would be attracted in the instant case. The independent witnesses who are near neighbours of the accused, namely, PW5, PW6 and PW12 clearly stated that the accused and the deceased enjoyed cordial relationship and they had not heard of any dowry demand made on the deceased or any torture meted out to her on account of such demand by the accused or his family members. 23. The evidence of the two sister-in-laws of the deceased, i.e., PW3 and PW4 who immediately rushed to the room of the deceased when they heard her cries indicates that the deceased did not implicate anybody as to how she caught fire. Of course, there is a little contradiction in what PW4 heard and what PW3 heard about the incident from, the deceased but one thing is certain that the deceased had not implicated any of the accused or other family members in connection with the fire incident. 24. In the absence of any direct evidence to implicate the husband or other relatives with the crime, the conviction of the accused has been ordered on the deeming basis that since the deceased died of burn injuries within four years of her marriage and prior to her death she was subjected to cruelty or harassment in connection with demand for dowry. In the instant case, although the parents of the deceased claimed that the deceased was harassed for dowry, their assertions are not specific and the father does not even say as to from what source he heard that his daughter was tortured for dowry. More significantly, both the parents of the deceased claimed that there was cordial relationship between the deceased and her husband and other family members. 25. If we are to test the veracity of the version offered by the parents of the deceased with the version given by the near relatives of the accused, we have to examine with care the evidence of the independent witnesses who are near neighbours of the accused and who reached the place of occurrence soon after hearing the hue and cry. The independent witnesses clearly stated that there had been no torture of the deceased arising out of any dowry demands and deposed specifically on the cordial relationship between the deceased and her husband and their respective families. Because of the evidence of the unrelated and independent witnesses, we find the version of the parents of the deceased to be doubtful and not reliable. But the version of the relations of the accused is supported by the independent witnesses and in our view is trustworthy. 26. On the basis of the evidence of the witnesses, the core of which has been discussed above, we are of the considered opinion that the third essential ingredient for an offence under Section 304B, IPC, namely, subjecting the deceased to cruelty or harassment in connection with dowry demands is not present in the instant case. Under such circumstances, we find no justification for applying the deeming provision under Section 304B, IPC to convict the accused in connection with the death of the deceased Ruma Das by burning. 27. In view of the above conclusion, we are of the considered opinion that the conviction of the accused-appellant ordered by the impugned judgment cannot be sustained. 28. The appeal is accordingly allowed. The impugned judgment and order is hereby set aside. 29. The accused is already on bail granted by this Court. His bail bond stands discharged. Appeal allowed.