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2013 DIGILAW 112 (CAL)

Raju Haldar v. State of West Bengal

2013-02-22

TOUFIQUE UDDIN

body2013
JUDGMENT : - Toufique Uddin, J. : This appeal arose out of judgment and order of conviction dated 22.7.2011 and 25.7.2011 passed by the learned Additional District & Sessions Judge, 5th Court, Barasat, North 24 Parganas in ST case No. 8(1)03 convicting the appellants under Section 498A and 304B of the Indian Penal Code and sentencing appellants No. 1 and 2 to suffer R.I. for 7 years each with a fine of Rs. 3000/- each with default clause for offence under Section 304B of the Indian Penal Code and further sentencing all appellants to suffer R.I. for a term of 2 years and to pay a fine of Rs. 1000/- each with default clause for commission of offence under Section 498A of the Indian Penal Code. 2. In the background of this appeal the fact in a nutshell is that one Anima Das, daughter of Gobinda Das was married on 16th Baisakh, 1404 B.S. to one Raju Haldar under Special Marriage Act. Gobinda Das paid a cash of Rs. 15000/-, gold ornaments and other articles to Raju Haldar and his family members at the time of marriage. After marriage, Anima Das was subjected to torture by her husband and her parents-in-law and they demanded more money and other articles. As the house of Raju Haldar was not fully constructed, they demanded Rs. 10000/- more for completing the construction. Thereafter, the ornaments of the deceased were taken away by the accused persons and they procured loan by mortgaging those ornaments. But torture never stopped. Ultimately, on 16.4.98, Anima Das sustained injuries due to burn as her mother-in-law tried to kill her by pouring kerosene oil on her in the night. Anima Das died in hospital on 25.4.98. A complaint was lodged with the O.C., Nimta P.S. 3. After investigation the police submitted charge-sheet under Section 498A/304B/120B IPC against the accused persons. The case was committed to the court of sessions by the learned Magistrate. 4. The learned trial court on hearing of both sides framed charges against three accused persons as follows: First – That on or about the 16th Day of Baishakh, 1404 B.S. one Anima @ Anita Halder @ Das was married with you (Raju Haldar) and after marriage she had been subjected to physical and mental cruelty by you all. 4. The learned trial court on hearing of both sides framed charges against three accused persons as follows: First – That on or about the 16th Day of Baishakh, 1404 B.S. one Anima @ Anita Halder @ Das was married with you (Raju Haldar) and after marriage she had been subjected to physical and mental cruelty by you all. And thereby committed an offence punishable under Section 498A of the Indian Penal Code and within the cognizance of court of sessions. Secondly – That all of you started physical and mental cruelty upon her (Anima @ Anita Halder) for demand of dowry and as a result she was compelled to finish her life by setting fire on her wearing cloth at Nimta P.S. at Alipore, Talbagan on 16.4.98 and succumbed into injury on 25.4.98. And thereby committed an offence punishable under Section 304B of the Indian Penal Code, and within the cognizance of court of sessions. Thirdly – That you on 16th day of April, 1998 in the morning did commit murder by intentionally causing death of Anima Halder w/o. Raju Halder by setting her ablaze and thereby committed an offence punishable under Section 302 of the Indian Penal Code and within the cognizance. The contents of the charges are read over and explained to the accused persons. They pleaded not guilty and claimed to be tried. And I hereby direct that you be tried by the said Court on the said charge. 5. To contest this case, the prosecution examined as many as 19 witnesses while none was examined on the side of the accused persons. However, they were examined under Section 313 Code of Criminal Procedure. The defence case as appeared from the trend of cross-examination and replies given by the accused persons at the time of examination under Section 313 Code of Criminal Procedure was denial of offence with a plea of innocence. 6. On trial the learned trial court convicted the present appellants by the impugned judgment. 7. The point for consideration is if the judgment suffers from any material irregularity and calls for any interference or not. 8. The learned counsel for the appellant argued mainly over the following points: i) This case is based on two dying declarations. But those dying declarations cannot be taken into consideration because those are suffering from infirmities. The Police recorded statement of one dying declaration. 8. The learned counsel for the appellant argued mainly over the following points: i) This case is based on two dying declarations. But those dying declarations cannot be taken into consideration because those are suffering from infirmities. The Police recorded statement of one dying declaration. But no doctor was called to certify if she was fit to give any dying declaration. The other dying declaration recorded by the Magistrate also is suffering from same infirmities. ii) In view of the discrepant nature of evidence of the eye-witnesses PWs 1 to 3 and 5 to 11 and non-examination of independent witnesses and the doctor and nurses who was attending Anima Das in NRS Hospital the case is hardly proved. iii) Independent witnesses viz. PWs 6 to 11 stated that appellants loved Anima and there was no such incident taking place as alleged. iv) PW 1 admitted that FIR was lodged after 3 days from the said burning injury of Anima and he never stated anything before regarding physical and mental torture inflicted upon his daughter Anima. 9. The learned counsel for the State to the contrary strenuously contended that the prosecution has proved this case to the hilt and the learned trial court has rightly convicted the present appellants. 10. Section 498A and Section 304B IPC read as follows: Section 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 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, 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. Section 304B. Section 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. 11. To appreciate the case some relevant pieces of evidence are required to be considered. It was mentioned in the FIR that on the ground of further dowry money of Rs. 10000/- the victim was subjected to extreme cruelty in the form of both physical and mental torture. Further, it was stated therein that the mother-in-law set her ablaze after pouring kerosene oil on her body at night. 12. It further transpires from his evidence that according to demand of the members of her in-law’s family place, PW 1 paid Rs. 15000/- to the accused persons in addition to some gold ornaments and other articles at the time of marriage. They also pledged her ornaments but the father of the victim released those. But still then, the victim girl’s husband, father-in-law, mother-in-law started subjecting her to cruelty over demand of more money of Rs. 10000/- for completing construction of house. He stood the test of cross-examination although, there are some minor commissions and omissions in his cross-examination. PW 1 further stated that he had talks with his daughter at the hospital where she was under treatment for 10 days before her last breath in presence of his wife and others. 13. Similarly, PW 2 the mother of the victim lady corroborated the evidence of PW 1 regarding torture. She added that around midnight on the fateful day kerosene oil was poured on her person and she was set on fire. She woke up and found her mother-in-law was going out of the room. 13. Similarly, PW 2 the mother of the victim lady corroborated the evidence of PW 1 regarding torture. She added that around midnight on the fateful day kerosene oil was poured on her person and she was set on fire. She woke up and found her mother-in-law was going out of the room. PW 3 is the brother. He also corroborated the case of the PW 1. He learnt from Anima about the setting of fire on her person and going out of her mother-in-law. PW 4 attended the Ashirbad ceremony. He stated that Anima told her that her husband used to assault her. PW 5 is another brother of the victim. He corroborated the evidence of his parents about the cruelty meted out to the victim for non-bringing of more money from her father. PWs 6, 7, 8, 9 and 11 turned hostile but the I.O., PW 19 stated in his evidence that actually such witnesses deposed over the matter of cruelty over the demand of more money. So, those witnesses do not appear to be truthful witnesses. Anyway, the other witnesses viz. PW 12 is an independent person and a neighbour of the complainant residing in the adjacent house of the complainant. He attended the marriage ceremony and he stated that Rs. 15000/- was paid to the husband of Anima in addition to gold ornaments and other articles. He further stated that the victim girl came to him and on query stated that the accused person subjected her to cruelty by the accused persons as she failed to bring more money. Successfully, he suffered the venom of cross-examination. 14. In the State vs. Orilal 1994 CrLJ 2104 (Supreme Court) the Hon'ble apex court held that deceased making complaints to her mother alone and to none else is quite natural as a newly wed woman is not expected to make her misfortune public. Again, physical torture or abuses on the deceased generally are not made in public. So no adverse inference can be drawn for non-examination of neighbours. Close relations of the deceased deposed about maltreatment, torture etc. and their statement should not be discarded. Husband convicted under Section 498A. It is hardly expected that the members of in-laws place would torture in public over the demand of dowry and thereby eye-witnesses will be available. It is against human conduct. Close relations of the deceased deposed about maltreatment, torture etc. and their statement should not be discarded. Husband convicted under Section 498A. It is hardly expected that the members of in-laws place would torture in public over the demand of dowry and thereby eye-witnesses will be available. It is against human conduct. Rather, such torture will be perpetuated in camera by the inmates of in laws’ place. 15. The father-in-law of the victim lady appears to have got admitted the victim lady in NRS Medical College Hospital at dawn after allegedly being pressurized by local people as stated by some witnesses. He made a statement to the doctor that while she was warming the food of her husband she caught fire from a stove whereas the hostile witnesses PW 6 to 9 and 11 stated that she caught fire in a hurricane. So, there are contradictory statements. The alleged incident took place in the midnight. So, it is expected that the members of the in-laws’ place and the husband were present there. But why then and there they did not take the patient who sustained 40% burn injuries to the hospital is not cleared by them. This is a pointer of their behavioural pattern. This circumstance is a circumstantial evidence. And this cannot be overlooked. 16. Next comes questions of dying declarations. 17. PW 13 is a S.I. of Police. He recorded the statement of Anima in presence of doctor Pinaki Das in NRS Hospital. This statement is one of the dying declarations (Ext. 5). The dying declaration was also signed by the doctor. Non-examination of doctor is not fatal. It is not the case of the defence that the signature appearing on Ext. 5 is not at all of the doctor. There is no cross-examination given to any of the relation witnesses that Anima was not in a position to give LTI. Rather the record shows that she was alive for 10 days. So, it is expected that he was likely to put her LTI. The contents of dying declaration (Ext. 5) recorded on 19.4.98 shows that her husband assaulted severely on 14.9.98 and asked her to bring money from her father’s house and did not allow her to take bed with him. So, it is expected that he was likely to put her LTI. The contents of dying declaration (Ext. 5) recorded on 19.4.98 shows that her husband assaulted severely on 14.9.98 and asked her to bring money from her father’s house and did not allow her to take bed with him. On 1st Baisakh, alone she laid on the floor but around midnight she suddenly felt scorching heat on her body and saw that her mother-in-law was running out of the room. She cried out and the neighbours came but her husband did not come to rescue her. She stated that her firm belief is that her husband and her mother-in-law set her on fire. 18. The other dying declaration is Ext. 3 recorded by one Executive Magistrate, PW 18. He stated that he wrote the dying declaration as per instruction of Anima in presence of her father, S.I. of Police and he took the right hand thumb impression in her statement. He further stated that the victim girl was physically and mentally fit to give her statement at that point of time. Extensive cross-examination was made to this witness but nothing favourable could be elicited by the defence side. There is nothing to play foul with this dying declaration. A person was in her last days. Her RTI has been given and identified by her father. The contents of the two dying declarations are more or less same and those were taken in presence of one doctor and one Executive Magistrate. The Magistrate testified that the maker was in a fit state of mind while dying declaration was made. Absence of certificate as to fitness is immaterial. Reliance may be put on Sohanlal vs. State AIR 2003 Supreme Court 4466. Further, a certificate of doctor is a rule of caution. There is no statutory provision which requires that dying declaration recorded by Judicial Magistrate or Executive Magistrate must be attested by a Medical officer certifying the mental state of patient vide Kodadi Srinivasa vs. State (2002) 4 AI CrLR 198 SCC. Absence of a certificate that the declarant is in a fit state of mind to make the statement is not fatal if the person recording the statement is satisfied that the declarant was in a fit state of mind. Reliance may be put on Dhanraj vs. State (2002) 7 SCC 425 . Absence of a certificate that the declarant is in a fit state of mind to make the statement is not fatal if the person recording the statement is satisfied that the declarant was in a fit state of mind. Reliance may be put on Dhanraj vs. State (2002) 7 SCC 425 . There is little scope to reject the dying declarations. 19. The husband and wife were in the same room. The husband did not take any attempt to call other person or to dowse the fire. In 313 Examination the husband admitted that Rs. 5000/- was paid voluntarily by the parents of the deceased. If at all, nothing is to be presented, and no demand of cash was made, why such cash instead of kind was given. Therefore, the evidence of the parents in regard to further demand of cash of Rs. 15000/- to construct the unfinished house cannot be ruled out. All these circumstantial evidence alongwith dying declarations conjointly show that the prosecution has been able to prove the following ingredients. a) That the death of the victim lady was caused by burns and the death occurred otherwise than normal circumstances in the manner as mentioned by the doctor who held P.M. over the dead-body. b) The victim girl was married in 1998 and she died in the same year, i.e., within a span of 7 years. c) That since before her death by her husband or his relative, she was subjected to cruelty and harassment and just the previous night of the incident her husband severely assaulted her and asked to bring money from her parents. d) That such cruelty or harassment was in connection with the dowry. 20. We may put reliance on Rajesh Pandey vs. State of U.P. (2009) 5 SCC 132 . Since the prosecution established the above mentioned ingredients, the court may presume under Section 113B of the Evidence Act that the husband and the mother-in-law caused the dowry death. Of course, the materials do not show that the father-in-law was involved in respect of the offence. 21. Further the husband did not seem to have taken a positive role of taking his better halve to hospital soon after her catching fire. Just the previous night he assaulted his wife and did not allow the victim to share bed with him and she lay on the floor. 21. Further the husband did not seem to have taken a positive role of taking his better halve to hospital soon after her catching fire. Just the previous night he assaulted his wife and did not allow the victim to share bed with him and she lay on the floor. Thereafter, in the midnight she caught fire in the same room and mother-in-law was seen going out of the said room. So, the criminal conspiracy of the husband and the mother-in-law stands established. 22. It is true that it is open to the accused to prove otherwise to destroy deeming clause as held in Ram Kumar vs. State (1998) 9 SCC 1 . Here, the defence side could not prove the case by any cogent evidence that the victim girl died of other decease or natural death. She was a young woman of 19 years. Nothing in the record transpires that she has any disease or so or on any other mental pain to throw away her life. Rather the case is that she was set on fire. 23. The learned trial court rightly after considering the materials on record acquitted the accused persons for alleged commission of offence under Section 302 IPC. The learned court below discussed elaborately to come to the conclusion. 25. Therefore, considering the entire gamut of the matter, I am of the opinion that the learned trial court has rightly convicted the present appellants and the findings need no interference. 26. In the result, the appeal stands dismissed. 27. The judgment dated 22.7.2011 and 25.7.2011 passed by the learned Additional District & Sessions Judge, 5th Court, Barasat, North 24 Parganas are affirmed. 28. Let a copy of judgment and the LCR be sent down to the learned court below. Upon appropriate Application(s) being made, urgent Photostat Certified copy of this Judgment, be given/issued expeditiously subject to usual terms and conditions.