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2013 DIGILAW 205 (GAU)

Anil Sutradhar v. State of Tripura

2013-03-19

SUBHASIS TALAPATRA

body2013
JUDGMENT Subhasis Talapatra, J. 1. Heard Mr. R. Datta, learned counsel appearing for the appellant as well as Mr. A. Ghosh, learned Additional Public Prosecutor appearing for the State. This appeal under Section 374 of the Code of Criminal Procedure 1973 (hereinafter referred to as Cr. P.C.) is directed against the judgment and order dated 19-8-2008 passed by the Additional Sessions Judge, South Tripura, Belonia in ST 22(ST/B) of 2008 whereby the appellant has been convicted under Section 304-B and under Section 498-A of the Indian Penal Code (hereinafter referred to as the IPC) and sentenced to suffer RI for 10 years and fine of Rs. 10,000/-, in default of payment of fine to suffer S.I. for 1 year for commission of offence punishable under Section 304-B of the IPC. The appellant has been further sentenced to suffer RI for 2 years and to pay fine of Rs. 5,000/-, in default of payment of fine to suffer S.I. for 6 months for commission of offence punishable under Section 498-A of the IPC with a direction that both the sentences will run concurrently. 2. The genesis of the prosecution is rooted, when one Ranjit Das, the PW-1, by filing a written ejahar disclosed that his sister, namely, Khuku Das had been married to the appellant two years prior to the offence as alleged. The appellant used to torture his sister demanding a sum of Rs. 10,000/- as 'dowry' and used to create pressure to bring money from her father's house. Since she could not get the money from her father's house she was subjected to physical torture and the marks of such violence were visible on her body. After her marriage she did not visit their house. Whenever the informant visited the house of his sister, she used to narrate the stories of torture on demand of money. On 17-4-2007 at 12 O'clock at night she being unable to bear the torture committed suicide by consuming poison. On that day, at about 9 a.m. his sister rang to their house and told about the torture. The appellant threatened his sister if within 2/1 hour she did not bring money she would be buried alive. His sister had a 8 months old baby. The informant also stated in the ejahar that they arranged Rs. On that day, at about 9 a.m. his sister rang to their house and told about the torture. The appellant threatened his sister if within 2/1 hour she did not bring money she would be buried alive. His sister had a 8 months old baby. The informant also stated in the ejahar that they arranged Rs. 10,000/- but could not see his sister alive as she committed suicide being unable to bear the physical torture. 3. Having received the said ejahar on 19-4-2007, the Santirbazar PS registered a case vide STB PS Case No. 27 of 2007 under Sections 498-A, 306 of the IPC. One Bhaskar Sarkar, the PW-16, was entrusted with investigation. On completion of the investigation, the charge was filed against the appellant under Section 304-B and 498A of the IPC. On taking cognizance the case was committed to the Court of the Addl. Sessions Judge, South Tripura, Belonia for trial. The charge was framed against the appellant under Sections 304-B and 498-A of the IPC to which the appellant pleaded not guilty and claimed to be tried. 4. To substantiate the charge, the prosecution had examined as many as 21 witnesses and brought on record 11 documents (Exbt. 1 to Exbt. 11). However, for the defence no evidence was adduced. On examination of the appellant under Section 313 of the Cr. P.C. and on appreciation of the evidence on record, the Addl. Sessions Judge, South Tripura, Belonia passed the impugned judgment and order returning the findings of conviction under Sections 304-B and 498-A of the IPC and imposed the sentence as stated. 5. The crux of the findings can be availed of in Para-11 of the impugned judgment and order. For the purpose of reassessment of the evidence, that finding is excerpted hereunder. From the scrutiny of the evidence on record, it is established that Khuku Das, the deceased died otherwise than normal circumstances. Death was caused by poisoning. Such death occurred within one year and eleven months of her marriage. She was subjected to cruelty, harassment after her marriage. She was not permitted to visit her father's house after marriage and Rs. 10,000/- was demanded by the accused-husband as price of marriage. The victim communicated such demand to her brothers and requested them to arrange the payment again and again. She was subjected to cruelty, harassment after her marriage. She was not permitted to visit her father's house after marriage and Rs. 10,000/- was demanded by the accused-husband as price of marriage. The victim communicated such demand to her brothers and requested them to arrange the payment again and again. On the date of her unnatural death, she called her sister through telephone, apprehended the beating, danger to her life and requested her to communicate the demand and arrange the payment shortly. The poor brothers could not arrange the payment and in the dead of night received the information about the death of their sister. Soon before the death deceased communicated about the torture on her in c/w the demand of Rs. 10,000/-. Accused put forward this demand as a price of marriage. This demand was not in connection with any other matter, but it is in connection with marriage only. It is true that in the F.I.R. and in the previous statement some facts of demand not clearly mentioned. But the witnesses before the Court clearly stated that Rs. 14000/- was paid in the marriage, but after marriage the accused showed his dissatisfaction by not allowing the deceased victim to visit the father's house after Firajatra. 6. It has been further observed that:- Death of the married woman occurred within seven years of the marriage. Death was other than normal circumstances. So, presumption under Sec. 113-B of the Evidence Act will arise. The Court will presume that such person who subjected the deceased wife to cruelty caused the dowry death. The presumption under shall presume is a presumption of law and Court is bound to take fact as proved until evidence as adduced successfully disproved it. No option in this regard is left to the Court. 7. Mr. Datta, learned counsel appearing for the appellant submitted that the impugned judgment and order has been passed without any legal evidence and on the basis of some presumption which cannot be permitted to be drawn in view of the settled position of law. He submitted that there is no evidence in the record as regards the 'dowry' or 'cruelty no sooner before the death' in the evidence. In the result, the appellant is entitled to acquittal from the charge. Mr. He submitted that there is no evidence in the record as regards the 'dowry' or 'cruelty no sooner before the death' in the evidence. In the result, the appellant is entitled to acquittal from the charge. Mr. Datta, learned counsel for the appellant has relied on a decision of the Apex Court in Durga Prasad and another v. The State of Madhya Pradesh as reported in (2010) 9 SCC 73 : (2010 AIR SCW 3673) to refer the passages as excepted hereunder:- 14. Having carefully considered the submissions made on behalf of the respective parties, we are inclined to allow the benefit of doubt to the Appellants having particular regard to the fact that except for certain bald statements made by PWs. 1 and 3 alleging that the victim had been subjected to cruelty and harassment prior to her death, there is no other evidence to prove that the victim committed suicide on account of cruelty and harassment to which she was subjected just prior to her death, which, in fact, are the ingredients of the evidence to be led in respect of Section 113B of the Evidence Act, 1872, in order to bring home the guilt against an accused under Section 304B IPC. 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. 16. In this case, one other aspect has to be kept in mind, namely, that no charges were framed against the Appellants under the provisions of the Dowry Prohibition Act, 1961 and the evidence led in order to prove the same for the purposes of Section 304B IPC was related to a demand for a fan only. 17. The decision cited by Mr. R.P. Gupta, learned Senior Advocate, in Biswajit Halder's case (supra) was rendered in almost similar circumstances. 17. The decision cited by Mr. R.P. Gupta, learned Senior Advocate, in Biswajit Halder's case (supra) was rendered in almost similar circumstances. In order to bring home a conviction under Section 304B IPC, it will not be sufficient to only lead evidence showing that cruelty or harassment had been meted out to the victim, but that such treatment was in connection with the demand for dowry. In our view, the prosecution in this case has failed to fully satisfy the requirements of both Section 113B of the Evidence Act, 1872 and Section 304B of the Indian Penal Code. 8. Mr. Datta, learned counsel for the appellant further submitted that the PW-7, the PW-8, the PW-10 and the PW-11 are the witnesses related to the deceased. Naturally they would be bent to secure conviction of the appellant as in the house of the appellant the deceased died an unnatural death. However, there is no dispute that the said death occurred within 7 years from marriage. For purpose of taking an adverse presumption in terms of Section 113(B) of the Evidence Act, 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, 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 in that event, such death can be called 'dowry death' on presumption without any further corroboration as per the provisions as engrafted in Section 113(B) of the Evidence Act, 1872. He submitted that the essential ingredients' as called for by Durga Prasad (2010 AIR SCW 3673) (supra) are entirely absent in the evidence as led by the prosecution. Similarly view has been expressed by the Apex Court in Biswajit Haider alias Babu Haider and other v. State of West Bengal as reported in (2008) 1 SCC 202 : (AIR 2007 SC (Supp) 52) sufficient for attracting Section 304-B of the IPC to lay mere evidence of cruelty, it has to be shown with such cruelty or harassment was indulged in, in connection with demand of dowry. 9. Mr. 9. Mr. Datta, learned counsel for the appellant made a reference to Rajib Neog v. State of Assam as reported in 2010(6) GLR 331: 2011 Cri LJ 399 (Gau) where the Apex Court held that:- 40. From the evidence of P.W. 8, i.e. the father of the deceased, it is found, that during his visit to the house of the deceased at Guwahati, he was informed by the deceased that she was required to do household works, and that she got tired. The detailed nature/particulars of household works, which she had to do was not stated by the P.W. 8. In view of the absence of detailed particulars/nature of such household works it is not possible to hold that the requirement to perform household works amounted to physical or mental cruelty. Facts remains that the said couple urged to live alone, therefore, requirement to perform the household works, cannot be termed as cruelty, sufficient to provoke to commit suicide. 41. Accept the evidence of P.W. 1 regarding inflicting a slap on the deceased, that too, in the year 1999, there is no other specific evidence of physical assault. That apart, the Investigating officer, who was examined as P.W. 12, stated that the P.W. 1 did not state before him regarding inflicting slap by the Appellant. Therefore, it is found that the P.W. 1 did not state about the giving of slap by the Appellant at the initial stage of giving statement before the Investigating Officer. This omission on her part raises suspicion about the veracity of her evidence. It is further found from the evidence of P.W. 1 that the Appellant had one said that his mother had asked him to find out a girl for him. From the evidence of P.W. 2 it was found that there was misunderstanding and the discord between the said couple got aggravated for not allowing the deceased to go to Kolkata to attend the conference. Though P.W. 2 also stated that the Appellant used to torture the deceased. She did not satisfy the nature of torture. In fact she had no personal knowledge about the physical and mental torture, if any, meted out to the deceased. Though the P.W. 2 stated that the deceased had once became senseless on being assaulted by the Appellant. She did not state the period during which and under what circumstances the said assault was made. In fact she had no personal knowledge about the physical and mental torture, if any, meted out to the deceased. Though the P.W. 2 stated that the deceased had once became senseless on being assaulted by the Appellant. She did not state the period during which and under what circumstances the said assault was made. According to this witness she was informed that the Appellant used to take drink and that she was assaulted due to excessive telephonic bill. From the evidence of the said P.W. 2 it appears that she had no personal knowledge about the assault or cruelty. Hence the evidence of P.W. 1 and P.W. 2 do not inspire confidence to believe that the deceased was treated with cruelty, which was sufficient to compel her to commit suicide. 42. P.W. 9 i.e. younger brother of the deceased, who used to visit the house of the deceased, stated that, once, he found his sister waiting out side of the wall for not being allowed to enter the home for about one and half a hours due to her late arrival for the office. He also stated that his sister was slapped and that she was not allowed to talk to the family members. If the deceased was slapped or physically assaulted by the Appellant there was no reason for the P.W. No. 9 not to know directly from the deceased, about such conduct of the Appellant. This witness did not state, on which date/day the deceased was not allowed to enter her house. There is nothing on record to found that she was not allowed to enter house for one and a half hours immediately prior to the date of committing the suicide. Therefore, her said detention, if any, outside the wall can't be believed to be a reasonable cause for committing suicide by the deceased. The father of the deceased, who used to visit the marital home of the deceased stated about doing the household works by the deceased. He stated that he had no adverse report regarding the marital life of the deceased. However, the P.W. 8 stated that during the visit of the deceased to her parent's house, she had informed that she was tortured by her husband and that the insisted on her to resign from the job. He stated that he had no adverse report regarding the marital life of the deceased. However, the P.W. 8 stated that during the visit of the deceased to her parent's house, she had informed that she was tortured by her husband and that the insisted on her to resign from the job. Except using the word torture, the P.W. 8 did not state anything in details about the nature of torture or treatment. Therefore, use of the term torture, without detailed narration indicating nature and gravity of such torture it is not reasonable to hold that the Appellant had treated his deceased wife with cruelty compelling her to commit suicide. 10. The Apex Court while considering the definition on the touchstone of the explanation provided below the Section 498-A of the IPC in Girdhar Shankar Tawade v. State of Maharashtra as reported in (2002) 5 SCC 177 : ( AIR 2002 SC 2078 ) held that:- 3. The basic purport of the statutory provision is to avoid 'cruelty' which stands defined by attributing a specific statutory meaning attached thereto as noticed herein before. Two specific instances have been taken note of in order to ascribe a meaning to the word 'cruelty' as is expressed by the legislatures. Whereas explanation (a) involves three specific situations viz., (i) to drive the woman to commit suicide or (ii) to cause grave injury or (iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in explanation (b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury: whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of 'cruelty' in terms of Section 498(A). 11. In Manju Ram Kalita v. State of Assam as reported in 2010(2) GLT 3419 SC: AIR 2009 SC (Supp) 2056, the Apex Court had occasion to restate the same principle and to make further distinction by way of certain illustrations in the definition of cruelty: 22. "Cruelty" for the purpose of Section 498A, I.P.C. is to be established in the context of Section 498A, IPC as it may be a different from other statutory provisions. "Cruelty" for the purpose of Section 498A, I.P.C. is to be established in the context of Section 498A, IPC as it may be a different from other statutory provisions. It is to be determined/inferred by considering the conduct of the man, weighing the gravity or seriousness of his acts and to find out as to whether it is likely to drive the woman to commit suicide etc. It is to be established that the woman has been subjected to cruelty continuously/persistently or at least in close proximity of time of lodging the complaint. Petty quarrels cannot be termed as 'cruelty' to attract the provisions of Section 498A, IPC. Causing mental torture to the extent that it becomes unbearable may be termed as cruelty. 12. In Sanju alias Sanjay Singh Sengar v. State of Madhya Pradesh as reported in (2002) 5 SCC 371 : ( AIR 2002 SC 1998 ) the Apex Court also illustrated by saying that utterance made in a fit of anger being emotional outburst due to marital discord cannot be in all cases constitute cruelty. In Rajib Neog (2011 Cri LJ 399 (Gau)) (supra) it has been further held that: 59. No evidence has been adduced to show that the nature and gravity of the assault was such that the same was unbearable, for which she had no other alternative but to commit suicide. There is no evidence on record to show as to how and in which manner or in which parts of the body and how frequently the deceased was assaulted by the Appellants. There is also nothing on record to show that she had sustained any injury on her person. That apart, at no point of time, the deceased was required to take any medical help for such ill treatment/assault, if any. If the deceased was treated with such cruelty as defined in Section 498A, IPC, the witnesses, more particularly, the mother and the brothers of the deceased should have been able to specifically narrate the same. They simply stated that the deceased was assaulted and tortured without indicating the nature and extent of hurt/injury, if any. Hence, it cannot be sufficient to safely conclude that the alleged conduct of the Appellant falls within the definition of Section 498A. IPC and 306 IPC. They simply stated that the deceased was assaulted and tortured without indicating the nature and extent of hurt/injury, if any. Hence, it cannot be sufficient to safely conclude that the alleged conduct of the Appellant falls within the definition of Section 498A. IPC and 306 IPC. In view of the absence of any substantive evidence, it cannot be held that the conduct of the Appellants was of such a nature, which compelled the deceased to commit suicide. 13. Mr. Datta, learned counsel for the appellant relying on Rajib Nego (2011 Cri LJ 399 (Gau)) (supra) further stated that there is no evidence of cruelty. As such, the statements those are made are bald statements without any meticulous description to generate confidence or assurance to rely on those pieces for the purpose of returning the conviction. 14. Mr. Datta, learned counsel for the appellant also stated that the PWs 19 and 20, the doctors, who conducted the post-mortem examination on the dead body of the deceased clearly stated that they did not find any external injury rather they had confirmed that the death was caused by the cardio respiratory failure which was ante-mortem for consumption of organo phosphorous compound and poisoning suicidal in nature. He further referred to the statement of the PW-21 who prepared the inquest report. The PW-21 also did not mention of any injury on the dead body. Apart that, Mr. Datta seriously contended that the neighbouring witnesses had given a version which was not at all considered by the trial Court while returning the finding of the conviction. Those witnesses in unison stated that the relation between the deceased and the appellant was cordial and they did not hear anything to suspect their relation. 15. On the other hand, Mr. Ghosh, learned Addl. PP has categorically submitted that the impugned judgment and order does not suffer from any infirmity which requires interference by this Court. He referred to the para-12 of the judgment to buttress his contention where it has been observed that, "It is also established from the evidence on record that accused subjected his wife to cruelty on the demand of Rs. 10,000/-. As the demand was not fulfilled, he had beaten his wife and finally unnatural death was caused. So, dowry death and subjecting the marriage wife to the cruelty for dowry demand is established by the evidence on record. 10,000/-. As the demand was not fulfilled, he had beaten his wife and finally unnatural death was caused. So, dowry death and subjecting the marriage wife to the cruelty for dowry demand is established by the evidence on record. Prosecution has established its case beyond the shadow of reasonable doubt against the accused Anil Sutradhar under Sections 304-B and 498-A of I.P.C." Mr. Ghosh, learned Addl. PP further contended that Unnatural death of the deceased wife within seven years of marriage evidence showing deceased was harassed for bringing more dowry in such case ingredients of Sec. 304-B established by prosecution. Onus lies on the accused to rebut the presumption under Sec. 113-B of the Evidence Act. He referred a decision of the Apex Court in Kamlesh Panjiyar alias Kamlesh Panjiyar v. State of Bihar as reported in AIR 2005 SC 785 where it has been held that, "Death of deceased within seven years of the marriage, there is no evidence showing that death of deceased was due to normal circumstances, demand of dowry, ill treatment shortly before the death and in such a case offence of dowry death is made out." 16. In Kundula Bala Subrahmanyam & another v. State of Andhra Pradesh as reported in 1993(2) SCC 684 : (1993 AIR SCW 1321) the Apex Court' held in no uncertain terms that, "The role" of Courts, under the circumstances assumes greater importance and it is expected that the Courts would deal with such cases in a more realistic manner and not allow the criminals to escape on account of procedural technicalities or insignificant lacunas in the evidence as otherwise the criminals would receive encouragement and the victims of crime would be totally discouraged by the crime going unpunished" On how to take the presumption under Section 113-B of the Evidence Act, Mr. Ghosh, learned Addl. PP while distinguishing the principles of Durga Prasad (2010 AIR SCW 3673) (supra) referred a decision of the Apex Court in Ram Badan Sharma v. State of Bihar as reported in AIR 2006 SC 2855 where it has been held that, "When the evidence judging that there has been persistent demand of dowry and because of non-fulfillment of the said amount, there was harassment, humiliation, continuous beating of the deceased, poison administered, presumption under Sec. 113-B of the Evidence Act will be attracted." 17. Finally, Mr. Ghosh, learned Addl. Finally, Mr. Ghosh, learned Addl. PP argued that the proper assessment of the evidence would irresistibly show to the criminality of the appellant and as such for the crime that he committed he cannot go unpunished else the society would be plagued by this category of the offences. 18. For appreciation of the rival contention as projected it would be apposite to make reference to the oral testimonies and the documentary evidence as led by the evidence as the appellant did not adduce any evidence oral or documentary except making his response under Section 313 of the Cr. P.C., 1973. There is no dispute at the Bar that the PWs-4, 6, 7, 9, 11, 12 and 17 turned hostile to the prosecution case. As such, their oral testimonies unless required for any corroboration is not at all essential for appreciation at this stage as it appears from the impugned judgment and order that those were not relied for returning the finding of the conviction. The conviction is entirely based on the statement of the PWs 1, 2, 3, 5, 8, 10 and the other witnesses being the PWs 19 and 20 and the investigators in the case. 19. The PW-1 is the informant, namely, Ranjit Das who filed the ejahar to a larger extent corroborated the statement made in the FIR. However, some contractions are also located. The PW-1 stated that his sister was married to the appellant and they paid some cash and golden ornaments as demanded by the appellants. Immediately, after the marriage the appellant demanded to his sister a sum of Rs. 10,000/- to open a shop near then-house. But the PW-1 expressed inability to make such payment. When he last visited his sister she told him that the appellant tortured her as the PW-1 could not pay the amount. When she was requested to visit their house she told that unless the money was paid the appellant would not allow her to visit their house. He further stated that, "In the morgue we saw her dead body. There were bruise and blood stain, mark of injury on her body. At about 2 p.m. one women police came, examined her body, prepared the inquest report and in the inquest report I put my signature." He identified the signature in the report as Exbt. P/1 as well. He further stated that, "In the morgue we saw her dead body. There were bruise and blood stain, mark of injury on her body. At about 2 p.m. one women police came, examined her body, prepared the inquest report and in the inquest report I put my signature." He identified the signature in the report as Exbt. P/1 as well. He admitted in the cross-examination that he had not mentioned in the FIR that the appellant demanded Rs. 14,000/- for the marriage and also that he did not inform the police that the accused demanded Rs. 10,000/- after marriage. 20. The PW-2, Laxmi Das, is the sister of the deceased who stated in the examination-in-chief, "My elder brother Ranjit Das & Uttam Das used to visit her husband's house. From them I came to learn that my deceased sister had been assaulted by the accd. brother in law as his demand of Rs. 10,000/- was not fulfilled by my brothers. On the date of her commission of suicide my elder sister Khukhu called me by telephone in the neighbouring house. I received the call. She told me that her husband had beaten her as Rs. 10,000/- not paid by her brothers. She told me to inform my brothers to go to their house with Rs. 10,000/-. On that day as my brother came in the night they could not go. On that day in the dead of night accd. called us by telephone in the neighbouring house and informed the death of our sister Khukhu". Even though the PW-2 had stated that she saw the dead body of the deceased but she did not talk about any mark of injury on her body as stated by the PW-1. She however stated that she told the police officer that her elder brother informed her that the deceased had been assaulted by the appellant as. Rs. 10,000/- was not paid. But no such statement could be found at the instance of the said witness in her previous statement. 21. The PW-3 is the wife of the PW-1. She replicated the statement of the PW-1 and corroborated that part of the statement of the PW-2 where she had stated in the Court that the deceased had informed her that her husband had beaten her for Rs. 10,000/-. But she categorically stated "I met with Khuku once after marriage. 21. The PW-3 is the wife of the PW-1. She replicated the statement of the PW-1 and corroborated that part of the statement of the PW-2 where she had stated in the Court that the deceased had informed her that her husband had beaten her for Rs. 10,000/-. But she categorically stated "I met with Khuku once after marriage. She did not tell me anything at that time." Even her statement regarding the demand of Rs. 10,000/- by the accused was not found in the previous statement. 22. The PW-5 is the brother of the PW-1. He stated that the deceased told him that she had been tortured by the appellant for payment of Rs. 10,000/-. He further stated that the deceased sister told him that if Rs. 10,000/- was not paid by his brothers then she might be killed by the appellant. But the statements as regards the demand of dowry at the time of marriage was not found in his previous statement as recorded by the IO. However, he withstood the brunt of the cross-examination and reiterated that the appellant demanded Rs. 10,000/-. 23. The PW-8, namely, Manju Rani Saha who was not declared hostile has categorically stated, "I never seen the accd to beat his wife and did not protest." This statement from a prosecution witness carries much evidentiary value as he was not declared hostile and not re-examined also on her such statement. Even the PW-10, Jharna Das, also stated that, "Anil Sutradhar is my neighbour. Relationship of Anil with his wife was well & good. I did not talk with police." She was also not declared hostile. As such, the prosecution has to go along with that version as not affecting the prosecution case. 24. The statement of the PW-13, Har Kumar Debbarma in the Court is quite different from the other witnesses but his statement is hit by the hearsay rule as the person from whom he stated to have learnt about the torture by the appellant on the deceased did not support such statement in the Court. 25. Moreover, the PW-14, Haripada Debnath, who is the scribe, did not state anything of material importance. 26. The PW-15, Chanu Das, who received the complaint from the PW-1 and entrusted the case for investigation to the PW-16, Bhaskar Sarkar, SI of police of the Manpather O.P. 27. 25. Moreover, the PW-14, Haripada Debnath, who is the scribe, did not state anything of material importance. 26. The PW-15, Chanu Das, who received the complaint from the PW-1 and entrusted the case for investigation to the PW-16, Bhaskar Sarkar, SI of police of the Manpather O.P. 27. The PW-16 narrated how he conducted the investigation by recording the statements, preparing the site map with index. He categorically admitted that delay in lodging the FIR was not explained and he admitted that he did not examine the immediate neighbours to the house of the appellant. 28. The PW-18 was the SDPO at the relevant point of time who took up the investigation from the PW-16 and he collected the post-mortem report and on completion of the investigation he filed the charge-sheet against the appellant under Sections 304-B and 498-A of the IPC. However, he denied that he did not record the statements of Kanchan Prava Das (the PW-6) and Minati Das (the PW-12). 29. Dr. Debasish Pal and Dr. Sumana Ghosh, the PWs. 19 and 20 conducted the post-mortem examination on the dead body of the deceased with another medical officer Dr. Narayan Das. The PW-19 confirmed that he got the smell of organo phosphorous and confirmed the opinion in the post-mortem report that the death was caused by cardio respiratory failure which was anti-mortem organo phosphorous compound and poisoning suicidal in nature. They admitted their report as Exbt. P/3. 30. The PW-21, Shipra Baidya who prepared the inquest report. From the inquest report it appears that, the deceased is seen by turning the deceased upside down and reversing her, thoroughly but no mark of injury can be seen. If any statement of the hostile witnesses are discussed, clearly two versions would, surface. Apart that, there is no evidence except the so called statement as made to the PW-2, Laxmi Das. But the said witness (PW-2) did not reveal anything to locate where she received the telephone call and what the neighbour's name was. As such, on taking a caution approach of assessing such related witness it appears to this Court that her statement is exaggerated and improved and does not extend necessary assarance to rely her entirely. The oral testimonies of the PWs. 1 and 15 are also admittedly deviating from their previous statement. As such, on taking a caution approach of assessing such related witness it appears to this Court that her statement is exaggerated and improved and does not extend necessary assarance to rely her entirely. The oral testimonies of the PWs. 1 and 15 are also admittedly deviating from their previous statement. Thus, those would be hardly infuse assurance depending on which the finding of the conviction can be returned. Apart that, from the statement of the PWs. 8 and 10 who were admittedly the witnesses from the neighbourhood and as it appears that the prosecution seemed not disaffected by such statement, the law in this regard is well settled, unless such witness are declared hostile and cross-examined the prosecution has to go by their version. From the oral testimonies of the said independent witnesses it has surfaced that the relation between the appellant and the deceased was quite cordial. Moreover, the demand that has been made is not relating to marriage but for the purpose of business. Whether such demand would come within the definition of dowry is no more res-integra. The said demand cannot be treated as the dowry simpliciter. In absence of any reliable evidence of cruelty no sooner before death as well as the demand of dowry on evidence it has to be held that by acting on the presumption as drawn under Section 113-B of the Evidence Act as the said unfortunate occurrence took place within 7 years of the marriage of the deceased and the appellant, the trial Court has committed serious illegality. Presumption only can be drawn under Section 113-B of the Evidence Act when the two requirement of cruelty no sooner before the death and purpose behind such cruelty being demand of dowry are proved. The Supreme Court has developed the law in Durga Prasad (2010 AIR SCW 3673) (supra) whereby the substantive area of penumbra has been attended to. 31. In the result, the appellant is entitled to acquittal on benefit of doubt. Accordingly, the appeal stands allowed and the impugned judgment and order of conviction is set aside. Send down the LCRs forthwith.