Research › Search › Judgment

Gauhati High Court · body

2011 DIGILAW 609 (GAU)

Gouranga Rudra Paul v. State of Tripura

2011-07-22

C.R.SARMA

body2011
JUDGMENT C.R. Sarma, J. 1. This appeal is directed against the judgment and order, dated 23.08.2006, passed by the learned Addl. Sessions Judge, Khowai, West Tripura, in case No. S.T.48(WT/K)2005. By the impugned judgment and order, the learned Sessions Judge, convicted the Appellant under Sections 498(A) / 304(B) of the Indian Penal Code (hereinafter called "IPC") and sentenced him to suffer rigorous imprisonment for two years for his conviction under Section 498(A) IPC and rigorous imprisonment for seven years for his conviction under Section 304(B) IPC. It has also been ordered that, both the sentences shall run concurrently. Aggrieved by the said judgment and order, the convict, as Appellant, has come up with this appeal under Section 374 of the code of Criminal Procedure (hereinafter called "Code of Criminal Procedure"). 2. I have heard Mr. R. Datta, learned Counsel, appearing for the Appellant and Mr. A. Ghosh, learned Addl. Public Prosecutor, appearing for the State-Respondent. 3. The prosecution case, in brief, as revealed during the trial, may be stated as follows: Smti Chandana Rudra Paul (hereinafter called "the deceased"), was given in marriage to Sri Gouranga Rudra Paul i.e. the convict-Appellant. Though the parents of the said bride had given Rs. 7,000/- in cash and other valuable articles as dowry, at the time of marriage of the deceased, her husband and other members of his family used to torture her demanding more dowry. On 20.08.2004, the informant, who was the uncle of the deceased, came to know that Chandana Rudra Paul was lying dead in the Khowai hospital. Accordingly, on 21.08.2004, the informant lodged a FIR with the O/C Khowai Police Station. On receipt of the said FIR, police registered a case under Sections 498(A) / 304(B) / 506 / 34 IPC and launched investigation into the matter. During investigation, police prepared the inquest report in respect of the dead body, forwarded the same for post mortem examination and recorded the statement of the witnesses. At the close of investigation, police submitted charge sheet, under Sections 498(A) / 304(B) / 506 / 34IPC, against the present Appellant and three others. 4. The offence being exclusively triable by the Court of Sessions, the learned Addl. Sessions Judge framed the charge under Sections 498(A) and 304(B) IPC against the accused persons. At the close of investigation, police submitted charge sheet, under Sections 498(A) / 304(B) / 506 / 34IPC, against the present Appellant and three others. 4. The offence being exclusively triable by the Court of Sessions, the learned Addl. Sessions Judge framed the charge under Sections 498(A) and 304(B) IPC against the accused persons. The charge was read over and explained to the accused persons, to which they pleaded not guilty and claimed to be tried. 5. In order to bring home the guilt of the accused persons, the prosecution examined as many as six witnesses including the Medical Officer and the Investigating Police Officers. At the close of the evidence for the prosecution, the accused persons were examined under Section 313 Code of Criminal Procedure. They denied the allegations, brought against them and declined to examine any defence witness. Considering the evidence on record, the learned trial Judge recorded conviction and sentence against the accused-Appellant as aforesaid. The other accused persons, namely (1) Sri Harimohan Rudra Paul, (2) Smti Usha Rani Rudra Paul and (3) Sri Benu Rudra Paul, were acquitted for want of evidence. 6. Mr. R. Datta, learned Counsel, appearing for the Appellant, taking this Court through the evidence on record, has strenuously submitted that there is no substantive evidence against the accused persons and that the learned trial judgment committed error by recording the conviction and sentences under Sections 498(A) / 304(B) IPC against the Appellant. The learned Counsel has also submitted that, the prosecution, in the present case, for the reasons best known to them, failed to examine the relatives, more particularly the parents of the deceased and the informant, to substantiate the claim of dowry demand and allegation of torture and that failure to do so, raises serious doubt about the prosecution version itself. The learned Counsel has also submitted that, there is no reliable evidence to show that the accused persons had demanded dowry and that the deceased was subject to any torture soon before her death. With the above submission, the learned Counsel, appearing for the Appellant, has submitted that the prosecution failed to prove the case against the accused person, beyond all reasonable doubt and as such the conviction and sentences recorded against the Appellant is liable to be set aside and quashed. The learned Counsel has relied on the following decisions: (1) State of Tripura v. Haradhan Majumder and Ors. The learned Counsel has relied on the following decisions: (1) State of Tripura v. Haradhan Majumder and Ors. reported in (2010) 6 GLR 134 (2) Kaushik Das v. State of Tripura reported in (2009) 3 GLR 206; (3) Ranvir Yadav v. State of Bihar reported in 2009 Cri.L.J. 2962; (4) Durga Prasad and Anr. v. State of M.P. reported in 2010 Cri.L.J. 3419. 7. Controverting the said argument, advanced by the learned Counsel, appearing for the Appellant, Mr. A. Ghosh, learned Addl. Public Prosecutor, has submitted that, though the parents or other family members of the deceased and the informant were not examined, the evidence of PW.1, who was the aunt of the victim, substantiates that the victim i.e. the deceased was tortured by the accused person in connection with demand of dowry and as such, under the provision of Section 304(B) IPC and Section 113B of the Indian Evidence Act,1872, presumption may be drawn against the accused person i.e. the Appellant. The learned Addl. Public Prosecutor, referring to the medical evidence i.e. the evidence given by Dr. Debasish Nath (PW.4), has submitted that the said medical evidence, rendered by the Medical Officer, who performed the post mortem examination, sufficiently indicates that the deceased sustained anti mortem injury resulting her death and that she having died within the stipulated period of seven years, from the date of her marriage, her husband is duty bound to explain as to how she sustained the said injuries resulting her death. In view of above, the learned Addl. Public Prosecutor has submitted that, the learned trial judge committed no error by recording the conviction and sentences and as such the impugned judgment and order needs no interference by this Court. 8. In order to appreciate the arguments, advanced by the learned Counsel, appearing for the parties and to examine the correctness of the impugned judgment and order, I feel it appropriate to briefly scan the evidence on record. 9. From the evidence of Dr. Debasish Nath (PW.4) i.e. the Medical Officer, who examined the victim, on 20.08.2004, it is found that, the victim died due to the injuries sustained by her. The Medical Officer, who examined the dead body of the deceased, opined as follows: There was subcutaneous haematoma over back of neck extending from lower border of skull to C-6 vertebra. Debasish Nath (PW.4) i.e. the Medical Officer, who examined the victim, on 20.08.2004, it is found that, the victim died due to the injuries sustained by her. The Medical Officer, who examined the dead body of the deceased, opined as follows: There was subcutaneous haematoma over back of neck extending from lower border of skull to C-6 vertebra. Fracture of cervical vertebra second to fourth was present which I mentioned in cranium and spinal canal. In my opinion cause of death in this case is due to combined affect of injury to cervical vertebra of second, third and fourth along with injury and compression of underlying vital organs and partial drowning. Cause of fracture and injury of spinal cord is due to hit by blunt weapon. Death is homicidal in nature. The said Medical Officer exhibited the post mortem examination report as Ext.5 and his signature thereon as Ext.5/1. 10. From the said medical evidence, which remained undemolished, it is found that the victim died due to the cumulative effect of the said injuries sustained by her. The Medical Officer has also opined that, partial drowning was also a cause of death of the deceased. Therefore, the said injuries sustained by the deceased and the drowning, caused her death. In the FIR also, it has been stated that the victim died on 20.08.2004. 11. According to Sri Sujit Rudra Paul (PW.3), the Appellant i.e. the husband of the deceased, carried his wife in a Auto Rickshaw, driven by this witness. He further stated that, on the next date he heard that the deceased died. According to this witness, he again brought the dead body from the hospital. This witness was declared hostile by the prosecution and cross examined, but nothing incriminating could be elicited against the accused persons. 12. In view of above evidence on record, it stood established that the deceased died on 20.08.2004, due to the injuries sustained by her. Now, the question is as to who caused her death. The accused-Appellant has been charged under Sections 498A and 304B IPC. For the sake of convenience, I feel it appropriate to reproduce the provision of Sections 498A and 304B IPC, which read as follows: 498A. Now, the question is as to who caused her death. The accused-Appellant has been charged under Sections 498A and 304B IPC. For the sake of convenience, I feel it appropriate to reproduce the provision of Sections 498A and 304B IPC, which read as follows: 498A. Husband or relative of husband of a woman subjecting her to cruelty.- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term, which may extend to three years and shall also be liable to fine. Explanation.- For the purpose of this section, "cruelty" means - (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. 304B. Dowry death.- (1) Where 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 and it is shown that soon before her death she was subject to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death. Explanation.- For the purpose of this Sub-section, "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. 13. Explanation.- For the purpose of this Sub-section, "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. 13. To attract the provision of Section 304B IPC, the following essential ingredients must be established: Essential Ingredients.- Ingredients for a dowry death are: (a) there is a married lady; (b) she has died an unnatural death including death by burn or by bodily injury or by poisoning etc; (c) that such death has occurred within seven years of the marriage; (d) it must be found that soon before her death she was subjected to cruelty or harassment for, or in connection with any demand for dowry by her husband or any of his relatives. 14. Therefore, to hold a person guilty under Section 498A IPC, it must be established that the woman was treated with cruelty within the meaning of Section 498A IPC and for holding a person guilty of Section 304B IPC, it must be established that the woman was treated with cruelty in connection with demand of dowry soon before her death. The proximity of time between the death of the deceased person and the alleged cruelty is relevant. 15. In the present case, except the evidence of PW.1, there is no independent evidence regarding cruelty and demand of dowry. Smti Sura Bala Rudra Paul (PW.1), who happens to be the aunt of the deceased, in her evidence stated that, 3/4 months prior to the occurrence, when she met the deceased, she was informed that the husband and the mother-in-law and father-in-law of the deceased used to torture her mentally, compelling her to bring more dowry (furniture). She further stated that the parents-in-law of the deceased did not allow the deceased to go with her (PW.1) and that they had threatened her to teach a lesson. PW.1 further stated that, after few months, one Sri Bimal Paul had informed her that the deceased died due to disease. On receipt of such information, she went to the police station and informed the police about the mental torture meted out to the deceased. PW.1 further stated that, after few months, one Sri Bimal Paul had informed her that the deceased died due to disease. On receipt of such information, she went to the police station and informed the police about the mental torture meted out to the deceased. In her cross examination, PW.1 stated that she heard about the marriage of the deceased with the Appellant and that she (PW.1) met her (deceased) 3/4 months before prior to her death. 16. In view of above, it appears that PW.1 had the occasion to meet the deceased only once i.e. about 3/4 months prior to her death. Though this witness stated that the deceased was mentally tortured by the Appellant and other members of his family, she failed to state as to in what manner the mental torture was meted out to the deceased. Though she stated that the accused persons demanded the deceased to bring more dowry i.e. furniture, she did not state as to what types of furniture was demanded. Therefore, the statement of PW.1 that the accused persons used to mentally torture the deceased in connection with demand of dowry is nothing but a bald statement. None of the other family members of the deceased including the parents of the deceased and her brothers, who were vital witnesses to prove the allegation of demand of dowry and cruelty, were examined in this case. Further Sri Bimal Paul, from whom the PW.1 came to know about the cause of death of the deceased, has also not been examined. From her said evidence, it appears that the deceased died of natural death. Even the informant, who lodged the FIR, alleging physical torture in connection with demand of dowry, has not been examined. Non-examination of such vital witnesses raises serious doubt about the prosecution version itself. 17. Sri Hemendra Rudra Paul (PW.2) and Sri Sujit Rudra Paul (PW.3), did not support the prosecution version. Though they were declared hostile and cross-examined by the prosecution, no incriminating evidence could be elicited from their cross-examinations. 18. In view of above, I find no corroboration in the evidence of PW.1, to believe that there was demand of dowry and that the deceased was physically or mentally tortured by the accused persons. Though they were declared hostile and cross-examined by the prosecution, no incriminating evidence could be elicited from their cross-examinations. 18. In view of above, I find no corroboration in the evidence of PW.1, to believe that there was demand of dowry and that the deceased was physically or mentally tortured by the accused persons. Considering the fact that the deceased was met by PW.1, 3/4 months prior to her death, it can't be held that the mental torture, alleged by PW.1, was committed on the deceased soon before her death. 19. Sri Debasish Deb Barma (PW.5) and Sri Timir Das (PW.6) were the Investigating Officers. They have no personal knowledge and information about the occurrence. 20. The evidence of PW.4 i.e. the Medical Officer indicates that the injuries sustained by the deceased and partial drowning, were the causes of her death. He also opined that the fracture injury as well as the injury on the spinal cord of the deceased, was caused due to hit by blunt weapon. 21. Mr. A. Ghosh, learned Add. Public Prosecutor, referring to the said medical evidence, has submitted that the Appellant, being the husband of the deceased, should have explained as to how the deceased sustained the said injuries. Therefore, in the absence of any explanation from the husband, it is submitted that, presumption may be drawn, under Section 304B IPC and Section113B of the Indian Evidence Act to the effect that none other than the husband i.e. the Appellant had caused the said injuries. In support of his contention, the learned Addl. Public Prosecutor, has relied on the decision of the Supreme Court, as reported in Trimukh Maroti Kirkan v. State of Maharashtra 2007 Cri.L.J. 20. In the above referred case, the Supreme Court observed: 17. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes placed in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime.... 22. 22. In the case of Kaushik Das(supra), a Division Bench of this Court observed that, merely because the accused-Appellant was present at the time of occurrence, a valid presumption cannot be made holding him responsible for the accident, meaning thereby that he committed the offence under Section 304B IPC. 23. Admittedly, in the present case the accused has not made any explanation regarding the cause of death of the deceased. In the above referred case the deceased was last seen with the accused and the explanation made by the accused was found to be false. But, in the case at hand, there is nothing on record to show that the Appellant was last seen together with the accused. Therefore, the decision referred by the learned Addl. Public Prosecutor does not help the prosecution. 24. Mr. R. Datta, learned Counsel, appearing for the Appellant, has relied on the decision of this Court in Haradhan Majumder (supra), wherein a Division Bench of this Court observed that, the medical evidence is nothing but an opinion evidence and as such in the absence of any corroboration of other ocular evidence of prosecution witnesses, it can't be held that the said injuries, sustained by the deceased, were caused by the accused person. Therefore, the presence of injuries aforesaid, as indicated by the Medical Officer can't be conclusive evidence to safely believe that none other than the Appellant had caused the said injuries. 25. The learned Counsel has also submitted that the proximity of the time of death of the deceased and the cruelty, alleged by the PW.1 does not indicate that the deceased was treated with cruelty in connection with dowry, soon before her death. 26. In the case of Ranvir Yadav (supra), the Supreme Court observed that, a conviction based on the accused's failure to explain what he was never asked to explain is bad in law. The Supreme Court also observed that, the whole object of enacting Section 313 Code of Criminal Procedure was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give. 27. 27. In the present case the findings of the Medical Officer, regarding the injuries found on the dead body, were not put to the Appellant, during his examination under Section 313 Code of Criminal Procedure The accused was told that as per the Medical Officer's evidence the death of the deceased was a homicidal one. The response of accused to the said evidence being invited, he answered that the same was not a fact. The nature and types of injuries found were not put to the accused. Therefore, the Appellant was not given opportunity to explain as to how the deceased sustained the said injuries. In view of this lapse, existence of the injuries itself can't lead to legal conclusion that the injuries were caused by the Appellant. As the said medical evidence was not brought to the notice of the accused, the same can't be used against him. 28. In the case of Durga Prasad supra), the Supreme Court observed: 15. As has been mentioned hereinbefore, in order to hold an accused guilty of an offence under Section 304-B, IPC, it has to be shown that apart from the fact that the woman died on account of burn or bodily injury, otherwise than under normal circumstances, within 7 years of her marriage, it has also to be shown that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry. Only then would such death be called "dowry death" and such husband or relative shall be deemed to have caused the death of the woman concerned. 29. From the evidence of the PW.1, who stated nothing except using the term "mental torture", it can't be ascertained that the conduct of the Appellant, towards the deceased was such that the same was likely to drive the woman i.e. the deceased to commit suicide or to cause grave injury or damage to life, limb or health of the deceased. The PW.1 even did not disclose as to what was the nature, type or form of mental torture. Therefore, in the absence of any specific particulars regarding the alleged mental torture, it can't be concluded that the same was harassment with a view to coerce the deceased to meet any unlawful demand for any property or valuable property. The PW.1 even did not disclose as to what was the nature, type or form of mental torture. Therefore, in the absence of any specific particulars regarding the alleged mental torture, it can't be concluded that the same was harassment with a view to coerce the deceased to meet any unlawful demand for any property or valuable property. That apart, her evidence does not indicate that the alleged mental torture was committed by the Appellant soon before the death of the deceased. 30. In view of the above discussed evidence, I have no hesitation in holding that the prosecution failed to establish the ingredients of Sections 498A and 304B IPC. Therefore, in my considered opinion the prosecution failed to prove, beyond all reasonable doubt, that the Appellant committed the alleged offences. 31. Accordingly, I find sufficient merit in this appeal. The impugned conviction and sentences are quashed. The Appellant be acquitted and set at liberty forthwith, if he is not required in any other case. Return the Lower Court Records.