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2013 DIGILAW 124 (CAL)

Jay Prokash Ghosh v. STATE OF WEST BENGAL

2013-03-01

ASIM KUMAR RAY, NADIRA PATHERYA

body2013
JUDGMENT Patherya J. This is an appeal directed against the judgment and order of conviction and sentence dated 29th April, 2011 and 30th April, 2011 respectively, passed by the Additional District and Sessions Judge, Fast Track Court No.3, Basirhat North 24-Parganas in S.T. No. 1(7)08 arising out of S.C. No. 10(9)07 whereby the appellants were convicted under Sections 498A and 304B IPC and directed to suffer three years rigorous imprisonment under Section 498A IPC and to pay a fine of Rs.2,000/- in default whereof the appellants were to suffer further rigorous imprisonment for six months. The appellants were also directed to suffer rigorous imprisonment for ten years under Section 304B IPC. The case of the prosecution is that within 7 years of marriage the victim died an unnatural death due to the torture inflicted on her by the appellants as the demand for dowry was not met. The marriage between the appellant and the victim was solemnized sometime in 2001 i.e. three years before the incident which occurred on 7th September, 2004. The FIR was filed on 8th September, 2004 and registered. Investigation was started and on completion of investigation, charge-sheet was submitted against the appellant under Sections 498A and 304B IPC, charges were framed and as the appellant pleaded “Not guilty”, trial began. In course of trial 15 prosecution witnesses were examined and documents exhibited. No defence witness was examined. On consideration of the evidence, exhibits and facts the Additional District & Sessions Judge, Fast Tract Court No. 3, Basirhat, 24-Parganas came to the conclusion that the death of the victim was a dowry death and therefore, the appellant was sentenced to ten years rigorous imprisonment under Section 304B IPC and to three years rigorous imprisonment under Section 498A IPC and a fine of Rs.2,000/- each in default whereof the appellant was to suffer further rigorous imprisonment of 6 months. Counsel for the appellants submits that according to the evidence of PW 4, PW 1 (Badal) who was cutting wood at the house of the accused informed him that the victim had been assaulted and she was burnt by pouring kerosene oil on her person. PW 1 has nowhere in his evidence corroborated the said statement of PW 4. The trial Court has placed reliance on the evidence of PW 4, PW 5 and PW 6 and passed the judgment. PW 1 has nowhere in his evidence corroborated the said statement of PW 4. The trial Court has placed reliance on the evidence of PW 4, PW 5 and PW 6 and passed the judgment. The demand for dowry according to PW 4 was made after a few months of marriage for loan. It was not an incident which had occurred soon before the death of the victim and although increase in the degree of torture has been alleged the nature of such increase has not been particularized. PW 5 the mother of the victim has also alleged torture of daughter for non-payment of the demand of Rs.10,000/-. She has also stated that she saw the manner of torture with her own eyes and also heard of such torture from her daughter but the particulars of torture has not been specified. No case of torture was also intimated to the Investigating Officer who was recording statements under Section 161 CrPC. It was from PW 2 Sila that PW 5 came to know of torture inflicted on the victim 15 days prior to her death but the said statement has not been corroborated by Sila. PW 6 has also said that due to non-payment of the demand of Rs.10,000/- torture was inflicted on the victim which fact he came to know from his sister but once again no particular of torture has been disclosed by PW 6. Although the said related witnesses viz. PW 4, PW 5 and PW 6 have alleged that the victim was driven out from her matrimonial home twice, the date on which she was driven out has not been specified. Therefore there has been no torture inflicted on the victim soon before her death nor has the degree of torture been stated which are necessary ingredients of Section 304B IPC and in view of 2004 SCC (Cri) 2057 and 2002 SCC (Cri) 608 the appellants cannot be convicted nor sentenced to imprisonment. To attract Section 306 IPC there must be an instigation to aid and abet suicide. From a reading of the evidence of the prosecution witnesses nowhere has instigation been alleged day after day to cause death. There must be proximity and live link with the active act and left with no option the victim took such step. To attract Section 306 IPC there must be an instigation to aid and abet suicide. From a reading of the evidence of the prosecution witnesses nowhere has instigation been alleged day after day to cause death. There must be proximity and live link with the active act and left with no option the victim took such step. There is no evidence of instigation and in fact from the Post Mortem report and doctor’s evidence it comes out that the death took place due to the effect of burn injury which was anti-mortem in nature. Reliance is placed on the decision reported in (2008) 1 SCC (Cri) 664 for the proposition that disputes and discord per se in the matrimonial home will not attract Section 306 IPC. (2011) 2 SCC (Cri) 1 is relied on for the proposition that abetment involves a mental process of instigating a person and in the absence of a positive act on the part of the accused to compel the victim to commit suicide Section 306 IPC is not attracted. (2010) 1 C Cr LR (SC) 217 is relied on for the proposition that there must be a direct act of incitement and commission of suicide to attract Section 306 IPC. As there has been no instigation leading to the victim’s death Section 306 IPC is also not attracted. Opposing the said appeal it has been submitted by counsel for the State respondent that four ingredients must be satisfied in a dowry death viz. marriage, unnatural death within 7 years, cruelty on account of demand for dowry and such cruelty must be “soon before death”. The victim was residing in her matrimonial house and from the evidence of the related witnesses demand for dowry is evident. The date of occurrence is 7th September, 2004. As the demand for Rs.10,000/- was made soon before death and the degree of torture increased for non-payment the essentials of Section 304B IPC have been satisfied. The offence under Section 498A IPC has also been established. A presumption is raised under Section 113A in case of cruelty defined in Section 498A (a) but a presumption is raised under Section 113B of Indian Evidence Act in respect of Section 498A (b) both of which explains the meaning of cruelty. The offence under Section 498A IPC has also been established. A presumption is raised under Section 113A in case of cruelty defined in Section 498A (a) but a presumption is raised under Section 113B of Indian Evidence Act in respect of Section 498A (b) both of which explains the meaning of cruelty. PW 5 the mother of the victim has categorically stated that there was a demand for dowry and for non-fulfillment thereof the victim was tortured 15 days prior to her death. If the demand was fulfilled there would be no reason for the demand to exist. But that the demand remained unfulfilled and the proximity of the torture for such demand bears nexus to the demise leads to the conclusion that the death of the victim is a dowry death under Section 304B IPC. It is an admitted position that the death is suicidal and is covered by cruelty in explanation to Section 498A (a) as twice the victim was driven out of the matrimonial home. This is evident from the evidence of PW 4. Unlawful demand under Section 498A need not be proximate to death which is a requirement of Section 304B IPC and in the instant case is established. Reliance is placed on the decisions reported in (2007) 2 SCC (Cri) 359 and (2006) 1 SCC (Cri) 309. Having considered the submissions of the parties there is no doubt that the date of occurrence is 7th September, 2004 i.e. within 7 years from the date of marriage of the accused appellant with the victim in 2001. The FIR was filed on 8th September, 2004 and the case made out in the FIR is that the victim was tortured for non-payment of demand of dowry. The evidence of PW 4, PW 5 and PW 6 is important as the said witnesses are related witnesses being the father, mother and brother respectively of the victim. PW 4 (father) has stated that he came to know of the incident from PW 1 who was present at the house of the accused for cutting wood but PW 1 has nowhere stated in his evidence that he informed PW 4 of the incident. Therefore the evidence of PW 4 to that extent cannot be relied on. A sum of Rs. Therefore the evidence of PW 4 to that extent cannot be relied on. A sum of Rs. 10,000/- was demanded for repayment of loan and it has been held by the Supreme Court of India that demand for sums to repay loan cannot be linked to dowry death. This demand of Rs. 10,000/- as also not stated to the police by PW 4. Therefore the evidence of PW 4 in respect of demand for sums cannot also be relied on. PW 5 mother, also in her evidence stated that the victim was tortured by the accused persons for non-payment of Rs. 10,000/-. She has further gone to say that the manner of torture was seen by her with her own eyes and she had also heard of the torture from the victim but the nature of the torture has neither been described nor particulars of such torture been given in the evidence of PW 5. Therefore for lack of such particulars the case of dowry demand remains unsubstantiated vis-à-vis the evidence of PW 5. PW 6 the brother of the victim has also stated that he came to know of the torture from his sister but the nature of the torture has not been specified. As there was no torture, mental or physical inflicted on the victim soon before her death, the prosecution has not been able to establish the case under Section 304B IPC. For a case to be established under Section 306 IPC abetment must be established. The instances of abetment has been mentioned in Section 107 IPC and one of the instances is instigation or intention to aid an illegal act. From the evidence of the related witnesses, viz. PW 4, PW 5 and PW 6 or the evidence of PW 2 no instance of instigation or intentionally aiding the commission of an act is borne out. No instance of provocation has been stated which may have compelled the victim to commit suicide under Section 306 IPC, therefore the decisions reported in (2008) 1 SCC (Cri) 664 and (2011) 2 SCC (Cri) 1 come to the assistance of the appellant. The explanation contained in Section 498A IPC has defined cruelty to mean any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or harassment with a view to coercing the person to meet any unlawful demand. The explanation contained in Section 498A IPC has defined cruelty to mean any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or harassment with a view to coercing the person to meet any unlawful demand. In the instant case wilful conduct and harassment are absent as will appear from the evidence of the witnesses. Therefore, no case under Section 498A IPC has been made out. Section 498A IPC deals with a case where the woman has been subjected to cruelty either by the husband or his relative and cruelty in Explanations (a) and (b) has been defined to mean “any wilful conduct” or “harassment” to compel the victim to commit suicide. In the instant case the related witnesses, viz. PW 4, PW 5 and PW 6 have in their evidence stated that twice the victim was driven out of her matrimonial home by the appellant. To be driven out of a matrimonial home there must be marital discord but PW 2 has in her evidence categorically stated that she did not hear of any marital dispute between the accused and the victim in her cross-examination. Therefore in the absence of marital discord it cannot be assumed that any wilful conduct of such nature or harassment was meted out to the victim by the appellant so as to drive her to commit suicide. Even in the statement recorded under Section 161 CrPC none of the witnesses disclosed the factum of torture least to say the details of torture. PW 2 has not been declared as a hostile witness and therefore her evidence can be relied on and she has not corroborated the evidence of PW 5. For all the said reasons, therefore the order of conviction dated 29th April, 2011 and sentence dated 30th April, 2011 cannot be supported and accordingly is set aside. The appeal is allowed. The accused be released from the correctional home provided he is not required to be in custody in connection with any other case. I agree