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2013 DIGILAW 175 (CAL)

Dibyendu Biswas v. State of West Bengal

2013-03-22

ASIM KUMAR RAY, NADIRA PATHERYA

body2013
JUDGMENT : Nadira Patherya, J. 1. This appeal arises from the judgment and order of conviction and sentence dated 25th November, 2008 and 27th November, 2008 passed by the Additional Sessions Judge, Fast Track Court, Tehatta, Nadia in Sessions Trial No. 11(6)/2008 arising out of Sessions Case No. 93(4)/2008 under Sections 498A and 304B IPC. By the said impugned order the appellants were sentenced to suffer rigorous imprisonment for two years under Section 498A IPC and to pay fine of Rs. 2,000/- each in default rigorous imprisonment for six months and to suffer life imprisonment and to pay a fine of Rs. 10,000/- each in default rigorous imprisonment for six months under Section 304B IPC. 2. The case of the prosecution is that the victim and the accused No.1 were married on 25th October, 2004 before the Registrar of Marriages and the social marriage took place on 3rd July, 2005. Within two years thereof i.e. on 1st August, 2007 the victim died as the further demand of Rs. 50,000/- by the appellants was not satisfied. For non-payment of the said sums torture was inflicted on the victim, which ultimately led to her demise. An FIR was filed on 1st August, 2007 by the defacto complainant-father with the Tehatta Police Station. 3. The FIR was registered and investigation initiated. On completion of investigation charge-sheet was submitted against the accused persons under Sections 498A, 304B and 306 IPC. Charges were framed under the sections mentioned above to which the appellant has pleaded "not guilty" and sought trial. In course of trial 18 prosecution witnesses were examined and documents exhibited. 4. On a consideration of the evidence and documents exhibited the Additional Sessions Judge, Fast Track Court, Tehatta, Nadia found the appellants guilty and passed the impugned order of conviction and sentence. It is against the order of conviction and sentence, this appeal has been filed. 5. Counsel for the appellants submits that in support of the case under Section 498A IPC the evidence of PW 1 father, PW 3 Mother, PW 5, PW 7 and PW 9 ought to be considered. PW 1 has stated about the demand of Rs. 50,000/- due to which torture was intensified on the victim. The nature of torture according to PW 1 was not being given food by the appellants to the victim. PW 1 has stated about the demand of Rs. 50,000/- due to which torture was intensified on the victim. The nature of torture according to PW 1 was not being given food by the appellants to the victim. He discussed about the torture on the victim with the wives of Sambu and Sribas of his locality but neither Sambu, Sribas, their wives nor neighbours were examined. On a suggestion being put to PW 1 that it was refusal of the parents to allow the victim entry to their house on the previous night which compelled her to commit suicide, the said suggestion was denied. The FIR lodged was at the instance of one Prafullababu, leader of a political party and the scribe of the FIR, neither belongs to the village of the victim nor the appellants but belongs to a third village. PW 1 has stated that cash and articles were given at the time of marriage to the victim. PW 3 has improved the items given at the time of marriage by specifying the amount of cash, gold ornaments, cot and bedding materials and other utensils given. Therefore the evidence in respect of the articles given at the time of marriage ought not to be relied on. According to PW 1 and PW 3 the demand was made by all the appellants and the youngest brother-in-law. This factum of demand is belied by the evidence of PW 12 a neighbour who has stated in his evidence that he does not know how the accused persons behaved with the victim but he had seen the victim and the appellant No.1 proceeding towards a fair at Shyamnagar at 3 PM the previous day. Similarly PW 5 has also stated that the victim and the appellant No.1 were proceeding towards a fair the previous day. PW 10 and PW 11 who used to go the victim's house daily to play ludo and watch television with her also stated that they did not hear any noise in the house of the appellants and that the appellants behaved well with the victim. PW 11 has been declared hostile but her evidence should be given as much important as that of PW 10 as both of them have stated the same facts in their respective evidence. PW 11 has been declared hostile but her evidence should be given as much important as that of PW 10 as both of them have stated the same facts in their respective evidence. In fact from the evidence of PW 10 it is revealed that the victim was dressing herself for purposes of going to the fair. It is unbelievable that a person who is inflicted with torture will take care to dress for a visit to the fair with her husband. Although PW 10 has stated in her evidence that she asked the victim why her parents did not visit her the answer is found in the evidence of PW 11 who has stated that it was because she had a love marriage. It is an admitted position that the victim and the appellant No.1 had a separate mess and lived in the first floor of the house. Therefore it is unbelievable that a demand would be made by the mother-in-law and the father-in-law, appellant Nos. 2 and 3. From the evidence of PW 5, PW 10, PW 11 and PW 12 it is evident that there was harmony between the victim and the appellant No.1. The source of demand has not been disclosed in his evidence. 6. Therefore from the aforesaid it appears that PW 1, PW 2 and PW 7 are related witnesses and all of them have stated that the demand was made post marriage. The evidence of PW 5, PW 10 and PW 11 does not support the case of demand. 7. There is also no evidence as to who brought down the victim and such persons have also not been examined by the prosecution. PW 18 who is the Investigating Officer was also not examined or cross-examined on whether he had recorded the statement of PW 10 and PW 11, therefore the evidence of PW 11 ought not to be discredited or declared hostile. From the evidence of PW 5, PW 10 and PW 11 the case of torture has been belied as the victim and the appellant No.1 lived in separate mess, therefore there was no question of the victim not being provided with food as stated by PW 1 and PW 7 in their evidence. The kind of torture has differed from witness to witness. While PW 1 speaks of the victim not being provided with food. The kind of torture has differed from witness to witness. While PW 1 speaks of the victim not being provided with food. PW 3 states that she used to be abused in filthy languages by the accused persons. PW 7 the sister states that besides not being given food she was insulted for belonging to a poor family. 8. In the light of the decision reported in 1976 SCC (Cri) 160 the case under Section 498A remains unsubstantiated and therefore no sentence could have been imposed under the said section. 9. Sections 304B IPC specifically provides for four ingredients viz. - (i) death of a woman must have been caused by any burns or bodily injury or otherwise than under normal circumstances; (ii) such death must have occurred within seven years of marriage; (iii) soon before her death she was subjected to cruelty or harassment by her husband or relative of her husband; (iv) such cruelty or harassment must be in connection with the demand of dowry. In the instant case although the first two ingredients has been satisfied there is no case of torture made out nor was the said torture reported to either the panchayat samity or the police station or the prodhan. There is also no evidence with regard to torture or cruelty inflicted on the victim soon before her death. The said is missing in the evidence of PW 1, PW 3 and PW 7. The time of demand is also not known. There is no proximate and live link between the demand and death of the victim and as held in the decision reported in (2001) 9 SCC 417 and as no sentence under Section 304B also has been proved by the prosecution, the judgment and order of conviction and sentence dated 25th November, 2008 and 27th November, 2008 be set aside. 10. Opposing the said appeal counsel for the State submits that the case under Section 498A has been proved by the prosecution as in the FIR it has been specifically stated that mental and physical torture was inflicted on the victim by making demand of Rs. 50,000/- but for non-payment of such sums the degree of torture increased. That filthy language was used is absent in the evidence of PW 1. 50,000/- but for non-payment of such sums the degree of torture increased. That filthy language was used is absent in the evidence of PW 1. The defacto-complainant-father has specifically stated that after lapse of some time after the marriage torture was inflicted by not only making demand for money but also not giving food to the victim. PW 3 mother of the victim has also stated about the torture inflicted for non-payment of money and the person from whom she heard of such torture being inflicted is the victim. She has also stated that the victim was abused in filthy language and this was another instance of torture that PW 1 the defacto complainant mentioned in the FIR. 11. PW 7 the sister has also stated of the demand made and it is the victim who informed her of such demand post marriage. Although the defence has sought to make out a case that the victim was not on visiting terms with the parents but this is not a fact as will be evident from the evidence of PW 3 who has stated that the victim daughter returned to the house time and again and it was the victim who informed PW 3 about the demand. This could not have been imparted if the victim did not visit her parents. In the questions put to the husband being the appellant No.1 under Section 313 Cr.P.C. he has said that the victim never visited her parents which is belied by the statement of the father-in-law being the appellant No. 3 who when put a similar question under Section 313 Cr.P.C. has said she visited her parents on and off. The relation between the accused and the victim was not good as will be evident from the sketch of the place of occurrence which shows to separate cots. 12. For the proposition soon before death under Section 304B IPC, reliance is placed on the decision reported in (2000) 5 SCC 207 therefore as the case of torture was proved by the prosecution there is no doubt that the deceased was the victim of a dowry death. All the ingredients of Section 304B IPC have been satisfied and the judgment and order therefore be upheld. 13. All the ingredients of Section 304B IPC have been satisfied and the judgment and order therefore be upheld. 13. In reply reliance is placed on the decision reported in (1984) 4 SCC 116 for the proposition that in a case of circumstantial evidence the circumstances set out therein must be satisfied and in absence of even one, the benefit of doubt be given to the accused and he be acquitted. 14. Having considered the submissions of the parties the prosecution has sought to make out a case of dowry death based on the torture inflicted on the victim under Section 498A IPC which drove her to commit suicide. Section 498A IPC postulates the husband or relative of the husband of a woman subjecting her to cruelty. 15. PW 2 (seizure list witness), PW 8 (vanpuller who carried the body), PW 13 (Inquest Dr.), PW 14 (Drew up the formal FIR), PW 15 (escorted dead body), PW 16 (scribe), PW 17 (PM Dr.), DW 12 are formal witnesses. 16. The evidence of PW 4 and PW 6 suffers from improvement and cannot be relied on. Evidence of PW 9 (brother-in-law) is hearsay. PW 11 has been declared hostile. PW 18 is the investigating officer. 17. Therefore the only witnesses whose evidence needs scrutiny are PW 1, PW 3, PW 7, PW 5, PW 10, PW 12 and PW 18. 18. The instances of torture has been described by PW 1, PW 2 and PW 7. PW 1, PW 2 and PW 7 have in their respective evidence given instances of torture. While PW 1 states that besides the demand of Rs. 50,000/- the victim was given no food. This differs from the torture of use of filthy language stated by PW 3 in her evidence besides the demand of Rs. 50,000/- PW 7 states in her evidence that the victim was not only not given any food but was also reminded of her poverty and status vis-a-vis the accused. Therefore the kind of torture varies. PW 1 in the FIR stated that filthy language was used but this finds no place in his evidence. Nowhere has PW 1 stated that he was informed of the demand by the victim. Although he informed of the demand to the wives of Sambhu and Sribas but the said persons were not examined as witness. PW 1 in the FIR stated that filthy language was used but this finds no place in his evidence. Nowhere has PW 1 stated that he was informed of the demand by the victim. Although he informed of the demand to the wives of Sambhu and Sribas but the said persons were not examined as witness. PW 3 has stated in her evidence that PW 1 knew of the demand of money by the accused persons. This finds no corroboration in PW 1's evidence. PW 7 (sister) has also stated of the demand of money besides not being fed and the class distinction but none of the said witnesses viz. PW 1, PW 3 and PW 7 has stated that the demand was made before the incident occurred. Not providing food to the victim by the accused persons cannot also be believed as from the evidence of PW 5 and PW 10 it reveals that the victim and the accused husband were in separate mess from the parents-in-law of the victim and the victim was not dependant on anyone for food. 19. PW 10 and PW 11 regularly visited the victim to play ludo and watch television. On the day prior to the incident, both of them found the victim dressing to go to the fair and the victim stated to both that she would return after a feast. PW 11 has been declared hostile but PW 5 and PW 12 have stated that they found the victim and the accused going to the fair on the motorcycle. This will not reveal any marital discord between the victim and the accused. Therefore no case under Section 498A IPC was established by the prosecution. 20. That the unnatural death of the victim occurred within 7 years of the marriage has been established but that the death by suicide was the result of cruelty soon before her death has not been proved by the prosecution. 21. "Soon before her death" would mean a proximate and live link between the incident and the demand. All that the related witness viz. PW 1, PW 3 and PW 7 have stated is that the demand of Rs. 50,000/- was made post marriage, that it was made proximate to the incident is not evident from the evidence of these witnesses. 22. All that the related witness viz. PW 1, PW 3 and PW 7 have stated is that the demand of Rs. 50,000/- was made post marriage, that it was made proximate to the incident is not evident from the evidence of these witnesses. 22. PW 10 has stated in her evidence that all was well in the matrimonial home of the victim and no noise was heard. The victim and accused lived in separate mess. On the previous day of the incident she found the victim dressing herself and was going to the fair at Shyamnagar and they would return after having a feast. PW 5 and PW 12 saw the victim and accused going towards the fair on the previous afternoon by motorcycle. He has also said the victim and accused lived in separate mess. 23. Therefore "soon before her death" there was no marital discord between the accused and the victim. In fact harmony was evident. 24. As no case under Section 498A IPC has been established nor was the cruelty or torture inflicted on the victim soon before her death the judgment and order dated 25.11.2008 and 27.11.2008 cannot be sustained in the eye of law and is accordingly set aside. 25. The appellants be released from the Correctional Home provided they are not wanted in any other case. Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties, as expeditiously as possible. Later : The counsel for the appellants seeks for an advance order being despatched to the concerned Correctional Home where the appellant No. 1 is at present. Let such advance copy be sent to the concerned Correction Home by the department. I agree.