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2012 DIGILAW 954 (CAL)

NRIPENDRA NATH DUBEY v. STATE OF WEST BENGAL

2012-10-16

KANCHAN CHAKRABORTY

body2012
JUDGMENT : Kanchan Chakraborty, J. This appeal is directed against the judgment and order dated 9.4.10 and 12.4.2010 passed by the learned Additional Sessions Judge, 2nd Court, Bankura in S.T. Case No. 01 (01) of 2007 out of Sessions Case No.20 (03) of 2006 thereby convicting the appellant Nripendranath Dubey for committing offence u/s 498A /304 of the I.P.C. and sentenced him to suffer R.I. for three years and seven years, respectively, with fine. Shortly, the prosecution case before the learned Trial Court was that the marriage of Seuli Dubey nee Tewari (since deceased) with Ahindra Dubey (since deceased) had taken place according to the Hindu Rites and Customs but Seuli died unnaturally in her matrimonial house on 20.6.2005, i.e., within seven months of her marriage with Ahindra. She died because of 100% burn injury and was taken to the hospital by local people not by her husband or in laws. She was subjected to physical and mental torture in her matrimonial house so long she was alive. On the basis of one F.I.R. lodged on 20.6.2005 by the elder sister of the deceased victim Seuli, Borjara Police Station Case No. 49 of 2005 dated 20.6.2005 was started against this appellant and four others including the husband who died in course of trial under Sections 498A /304B as well as under Sections 302/ 34 of the I.P.C. to which they pleaded not guilty. In course of trial, 19 witnesses were examined by the prosecution. The F.I.R., statement u/s 164 of the Cr.P.C., inquest report, P.M. report, seizure lists, medical report, sanction to prosecution etc. were admitted into evidence and marked exhibits on behalf of the prosecution. No witness was examined on behalf of the defence. The appellant as well as co-accused simply denied the prosecution case categorising the same as false. 2. The learned Trial Court upon consideration of the evidence on record came to a finding that although no case of murder was proved, the case u/s 498A as well as u/s 304 of the I.P.C. was established by the prosecution by clinching and sufficient evidence. 2. The learned Trial Court upon consideration of the evidence on record came to a finding that although no case of murder was proved, the case u/s 498A as well as u/s 304 of the I.P.C. was established by the prosecution by clinching and sufficient evidence. Accordingly, the learned Trial Court passed the judgment which is impugned in the appeal, mainly, on the following grounds; (a) that the learned Trial Court failed to appreciate the evidence on record in its true and proper perspective; (b) that the learned Trial Court failed to take into consideration that there were discrepancies in the statement of witnesses on the material points; (c) that the learned Trial Court failed to consider that there was no nexus between the incident of death of the victim Seuli and any overt act on the part of the appellant; 3. Mr. Rudradipto Nandi, learned Counsel for the respondent/State of West Bengal contended that the judgment is based on clinching and cogent evidence. It is not required to upset in appeal. 4. Mr. Roy, learned Counsel appearing for the appellant contended that the learned Trial Court erred in relying on evidence of P.Ws. 2, 4 and 5. The P.W. 2, i.e., Debashis Bagdi is a man of the locality where the appellant was having his residence and where the incident alleged had taken place. He has stated that at the relevant date and time, he found smoke coming out from the west window of the first floor of the house of the appellant. He also heard shouting "Jal Dao, Jal Dao, Bachao, Bachao, Chotobabu Jele Dilo" from the roof of the house of the appellant. He asked the appellant as to the reason of such shouting but was threatened by the appellant. So, the P.W. 2 left the place. He, however, witnessed seizure of burn cloths and other articles by police from the house of the appellant. He also identified his signature on the seizure list. He made a statement before the learned Magistrate u/s 164(5) of the Cr.P.C., which was marked Ext. 2 series. The statement u/s 164(5) of the Code of Criminal Procedure of this P.W. 2 appears to be consistent with what he has stated in Court as witness. 5. He also identified his signature on the seizure list. He made a statement before the learned Magistrate u/s 164(5) of the Cr.P.C., which was marked Ext. 2 series. The statement u/s 164(5) of the Code of Criminal Procedure of this P.W. 2 appears to be consistent with what he has stated in Court as witness. 5. I have carefully gone through the evidence of the P.W. 2 in cross-examination but failed to find out anything to which has shakened his testimony to the effect that on the particular date and time he found smoke coming out from the house of the appellant and that he heard someone shouting "Jal Dao, Jal Dao, Bachao, Bachao, Chotobabu Jele Dilo". Surprisingly enough, the defence did not challenge that statement in cross-examination seriously. 6. The P.W. 3 was also a local man. On the relevant date and time, he also found smoke coming out from the window of the first floor of the house of the appellant. He also heard shouting "Jele Dilo, Jwala Gao, Jal Dao, Jal Dao". He asked the appellant about the reason of such smoke and shouting but the appellant requested him not to stay there and to go away. So, he went away. The P.W. 3 also witnessed seizure of articles by police from the house of the appellant. He signed the seizure list and identified his signature in Court. He made statement u/s 164(5) of the Cr.P.C. before the learned Magistrate also which was marked Ext. 3 by the learned Trial Court. The Ext. 3 supports and tallies what he has stated in course of his examination in Court. 7. Surprisingly enough, the statement of the P.W. 3 that he found smoke coming out from the house of the appellant and that he heard shouting "Jele Dilo, Jwala Gao, Jal Dao, Jal Dao" was not at all challenged by the defence in course of cross-examination of P.W. 3 as if the defence admitted the position. 8. P.W. 5 is a local man also. He stated that he found smoke coming out from the northern window of the first floor of the appellant at the relevant time and date. He, however, entered into the house of the appellant and gone to the first floor and found a 90% burnt body. He came back home. 8. P.W. 5 is a local man also. He stated that he found smoke coming out from the northern window of the first floor of the appellant at the relevant time and date. He, however, entered into the house of the appellant and gone to the first floor and found a 90% burnt body. He came back home. He also heard "Mere Dilo, Mare Deli, Jal, I am not yet dead etc." He came to know that the burnt body was the body of wife of elder son of the appellant. 9. Turning to the judgment impugned, I find that the learned Trial Court had reason enough to rely on the evidence of P.Ws. 2, 3 and 5 supported by the evidence of Doctor who conducted the post mortem report and other factors, such as, conduct of the appellant and the allegations and aspersions made in the F.I.R., evidence of the lodger of the F.I.R. Kanchan Tewary (P.W. 6) and P.W. 8, P.W. 9, as well as post mortem report. 10. The fact that Seuli died with 100% burnt injury in her matrimonial house within seven months from the date of her marriage with the son of the appellant is an admitted position. The son of the appellant who was husband of Seuli died in course of trial. Seuli sustained burn injury in the morning and her burn body was found on the first floor of the house of the appellant. No outsider was present at the relevant period of time. The fact that Seuli was subjected to physical and mental torture in her matrimonial house as soon as the warmth of marriage of newly married couples evaporated within three/fourth months. She was asked to bring money from her parents' house, which she could not provide. The evidence adduced on behalf of the prosecution in this regard is not only sufficient but cogent reliable and consistent. 11. The fact that the appellant or his inmates did not take the victim to the hospital or tried to save her life is an admitted position. This conduct of the appellant and his family members obviously relevant and admissible in evidence in view of Section 8 of the Indian Evidence Act. The learned Trial Court had taken this fact into consideration in a very pragmatic way which should be appreciated. This conduct of the appellant and his family members obviously relevant and admissible in evidence in view of Section 8 of the Indian Evidence Act. The learned Trial Court had taken this fact into consideration in a very pragmatic way which should be appreciated. The learned Trial Court has given reasons as to why the offence u/s 498A of the I.P.C. is said to have been established. I find nothing wrong in the decision taken by the learned Trial Court. The offence u/s 498A of the I.P.C. can be said to have been committed when cruelty to wife is proved. The definition of cruelty is circumscribed by the explanation. In view of Clause (a) to the explanation, it must be a willful conduct which postulate and obstinate and deliberate behaviour on behalf of the offender. The conduct beside being wilful must result in likelihood of driving the woman concerned either to commit set aside, or to cause grave injury or danger to life, limb or health. 12. The offence u/s 304B of the I.P.C. is set out below; 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 subjected 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. Section 113B of the Indian Evidence Act says that when the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death, such woman has been subjected by such person to cruelty or harassment for, or in connection with, in demand of dowry, the Court shall presume that such person had caused the dowry death. 14. 14. Explanation-for the purpose of the Section of 'dowry death' is having the same meaning as given in section 304B of the I.P.C. 15. In Kailash Vs. State of M.P., AIR 2007 SC 107 , the Hon'ble Court observed that the words "soon before" in Section 113B cannot be limited by fixing time limit. It is left to be determined by the learned Court, depending upon the facts and circumstances of the case. 16. The post mortem report in the instant case which was marked Ext. 9 explicitly indicates that Seuli died due to 100% burn injury. 17. The P.W. 14, Dr. Swapan Bhowmik who conducted the post mortem on the dead body of Seuli. He opined that the death of Seuli was due to the burn injuries detected by him which were ante mortem in nature. 18. The P.W. 13, Dr. Jayanta Ganguly was the Doctor who had the opportunity to examine Seuli Dubey first of all. Seuli was brought by public in an Ambassador car to Borjora B.P.H.C. on 20.6.2005. She could not be taken out from the car because of her condition. The Doctor, i.e., P.W. 13 examined her and found 100% burn injury. It cannot, in fact, be said from the post mortem report that whether it was a case of suicide or dowry death or accidental death. But apart from the post mortem report, there is sufficient evidence on record, i.e., the testimonies of P.Ws. 2, 3 and 5 to show tat Seuli was subjected to cruelty and she either committed suicide by setting her on fire or her death was caused by the appellants by set her on fire. Whatever, it might be, in all probabilities the death had a connection obviously with the dowry demand of the appellant and the conduct of the appellant as found by the learned Trial Court unmistakably goes to suggest that he prevented of the local people from saving the burning Seuli. He himself and his inmates also did not make any effort to save her. They did not even care to take her to hospital. They wanted Seuli's death very badly. This is a case of dowry death and I find that the learned Trial Court has properly appreciated the evidence in its true perspective. In this connection, the decision of the Hon'ble Court in Sharad Vs. They did not even care to take her to hospital. They wanted Seuli's death very badly. This is a case of dowry death and I find that the learned Trial Court has properly appreciated the evidence in its true perspective. In this connection, the decision of the Hon'ble Court in Sharad Vs. Maharashtra, reported in 2012 (2) SICLR 598 can well be referred to. The Hon'ble Court in that decision observed as under; ............died from burnt injuries within two and half a year of her marriage with the appellant. It is also established that soon before her death, she was subjected to cruelty or harassment by the appellant in connection with demand for unpaid amount of dowry. All the three facts and circumstances altogether clearly attracts the provision of Section 113B of the Indian Evidence Act and the burden lay upon the appellant to prove the defence plea that it was a case of accidental burn. 19. In the instant case, the appellant and the co-accused did not take any plea rather they pleaded their innocence. Accordingly, the propositions made by Mr. Roy, learned Counsel for the appellant that the learned Trial Court did not appreciate the evidence in its true and proper perspective, failed to consider the discrepancies on material point and failed to consider that there was no nexus between the death of Seuli and no overt act on the part of the appellant, are found not sustainable in the facts situation of the case and evidence recorded by the learned Trial Court. 20. In view of the discussions above, the appeal fails. The judgment impugned is affirmed. 21. Let a copy of this judgment along with the L.C.R. be sent down to the learned Trial Court. Urgent photostat certified copy of this order, if applied for, be given to the appearing parties upon compliance of necessary formalities.