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2013 DIGILAW 263 (CAL)

Sukumar Mahaldar v. STATE OF WEST BENGAL

2013-05-13

TOUFIQUE UDDIN

body2013
Judgment :- Toufique Uddin, J. This appeal arose out of judgment and order dated 20.5.1999 passed by the learned Additional Sessions Judge, 4th Court, Nadia in Sessions Case No. 12 of June 1993 convicting thereby the appellants under section 498A/304B of the Indian Penal Code and sentencing them to suffer imprisonment for seven years for the offence under Section 304B of the Indian Penal Code and to suffer rigorous imprisonment for one year and to pay fine of Rs. 1,000/- each in default to suffer further rigorous imprisonment for three months for the offence under Section 498A of the Indian Penal Code. During pendency of the appeal, Jamini Mahaldar, the appellant No. 4 died and as such the case against him stands abated. In the background of this appeal, the fact in a nutshell is as follows:- The first daughter of the complainant viz., Sulekha was married to accused no. 1 Sukumar in the last part of Falgoon 1396 B.S. At the time of marriage the complainant paid Rs. 10,000/- out of Rs. 15,000/- in cash and also presented other articles, viz., gold ornaments, beddings etc., to his son-in-law. Accused Nos. 2 and 3 are full brother and Boudi of accused no. 1 and accused nos. 4 and 5 are the parents of the accused No. 1. It was the further case of the prosecution that after 3-4 months of marriage the accused persons started torture both mentally and physically on the victim for bringing balance amount of Rs. 5,000/-. The complainant could not collect the said amount and requested the accused nos. 1 to 3 to stop torture on his daughter and took time to pay the said money upto the month of Aswin. In the month of Chaitra again merciless torture was inflicted on the victim. On the date and time of incident, the complainant was out of the house in the field. At that time the son of accused no. 1 by his first wife, Tarak came to the house of the complainant at about 12 noon and informed the wife of the complainant that Sulekha was vomiting. The wife of the complainant rushed to the house of the accused. She found her daughter dead. On investigation, the police submitted charge sheet. The case was committed by the learned Magistrate to the Court of Sessions, Nadia. The wife of the complainant rushed to the house of the accused. She found her daughter dead. On investigation, the police submitted charge sheet. The case was committed by the learned Magistrate to the Court of Sessions, Nadia. On hearing of both sides, the learned Trial Court framed charges against the accused persons under Section 498A/304B of the Indian Penal Code. The contents of the charges were read over and explained to the accused persons, who pleaded not guilty and claimed to be tried. To contest this case, the prosecution examined as many as 9 witnesses, while none was examined on the side of the defence. However, the accused persons were examined under Section 313 of the Code of Criminal Procedure. The defence case, as appeared from the trend of cross-examination of the witnesses as well as the replies given by the accused persons at the time of examination under Section 313 of the Code of Criminal Procedure, is denial of offence with a plea of innocence. On trial, the learned trial court convicted the present appellants by the impugned judgment. The point for consideration is if the impugned judgment suffers from any material irregularity and calls for any interference or not. Section 498A/304B of the Indian Penal Code read as under: 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 of the Indian Penal Code. 304B. Dowry death. Section 304B of the Indian Penal Code. 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". To appreciate the case in a better way some pieces of evidence are required to be considered. It appears from the materials on record that after the incident, the relations and villagers informed the police station. Instead of lodging the case under heading as above, police started an unnatural death case. Thereafter the complainant finding no other alternative lodged a complaint in the court of learned Chief Judicial Magistrate, Krishnanagar, Nadia. Therefrom, it appears that in Falgoon 1395, the victim was married to accused no. 1 and financially poor petitioner had given all that he could viz., bed and bedding, utensils, a gold ring and cash of Rs. 10,000/- out of Rs. 15,000/- as demanded, but as the balance sum could not paid so the accused persons inflicted torture and ultimately, in the house of the accused person, the victim died. Further it was alleged therein that on the fateful day of the incident in the morning her husband along with her elder sister-in-law(husband’s elder brother’s wife) and her mother-in-law had all together held her by hair and had assaulted with slaps and blows and the accused no. 1 had kept a small container of poison and had told her, “if I see that you are still alive when I return home in the afternoon I shall cut you in pieces and throw you into the Ganges”. Accused No. 3 also told “so many people die, why don’t you die, for what happiness are you still remaining alive”. It was alleged that owing to all these provocations and on finding no other alternative and unable to give remaining amount of dowry, the daughter of the complainant consumed poison and died. The complaint is Exhibit 3. Exhibit 1 is the inquest report. It was alleged that owing to all these provocations and on finding no other alternative and unable to give remaining amount of dowry, the daughter of the complainant consumed poison and died. The complaint is Exhibit 3. Exhibit 1 is the inquest report. Therefrom it appears that regarding family disputes between the husband and wife, there was altercation in the morning of 3.4.1992 when the incident took place and owing to that the deceased felt morosed, lost her self-confidence and consumed unknown poison and committed suicide. P.W. 1 is the de-facto complainant, the father of victim. He reproduced his allegation as were made in the complaint in his evidence. He appears to have successfully suffered the pressure of cross-examination. He has stated there was “Haichoi” in the house of accused persons and many other persons were present in their house. He found his wife there and on query her wife reported that when she asked her daughter, her daughter told her that at the instance of the accused persons she committed suicide by taking poison. The P.W. 1 did not find any accused persons present there. It was his allegation that the police did not take any steps. Thereafter he filed the criminal case in court. A suggestion was given to P.W. 1 that the deceased had love affairs with the accused no. 1 who was “dozbor” by marrying second time and having a son also. It was denied. Further it was suggested to P.W. 1 that as he was very poor, he did not present anything at the time of marriage as dowry. P.W. 2is the wife of P.W. 1. She completely corroborated the evidence of P.W. 1 and added that on the fateful day Tarak who is son of accused Sukumar informed her about the precarious condition of Sulekha and she went there and on query her daughter reported to her that accused persons tortured and instigated to commit suicide after giving her a container of poison. She denied. Further she denied that only to create pressure on the accused persons, the case was filed. P.W. 3 knows both sides. He is a local man. He has stated that after getting information about her precarious condition, he went to her in-law’s house and found that her condition was serious and “Ganjla” was found coming out from her mouth. He did not see the accused persons there. P.W. 3 knows both sides. He is a local man. He has stated that after getting information about her precarious condition, he went to her in-law’s house and found that her condition was serious and “Ganjla” was found coming out from her mouth. He did not see the accused persons there. He stated that on query P.W. 2 reported that victim told her that she was tortured by the accused persons and accused husband gave her a container of poison and asked her to commit suicide. P.W. 4 is also another local resident. He stated almost what P.W. 3 said. As per direction of P.W. 1 he along with Madhab, Madhu and Ram Kamal went to Kaliganj Police Station. At late hours of night police came and prepared inquest report. He signed the inquest report. When he went to the house of the accused, he did not find any of them. He identified the accused persons. He further stated that Sulekha and P.W. 2 reported to him that the accused persons used to torture her for dowry money. P.W. 5 is also the resident of the same area. He went to the house of the accused. He found Sulekha lying dead and her mother was crying by saying that as they failed to give the dowry money she committed suicide. He also signed the inquest report. He successfully suffered the pressure of the cross-examination. P.W. 6 is another independent witness and resident of the same area. He knows both sides. Sulekha died by taking poison in the month of Chaitra. He heard cry of P.W. 2 and went to the house of accused and found Sulekha lying dead. At that time he did not find any of the accused persons. On his interrogation P.W. 2 reported that in that morning all accused persons assaulted her and accused Sukumar gave poison container and then she committed suicide. P.W. 7 is a formal witness. P.W.8 is a Doctor. He held postmortem examination over the dead-body of the deceased. On examination he opined that the death was due to unknown poison containing of chemicals. P.W. 9 is the another formal witness. He prepared the inquest report Exhibit 1. Unnatural death at in-laws place obviously causes eyebrows. A victim woman may commit suicide by hanging or burning for various reasons. He held postmortem examination over the dead-body of the deceased. On examination he opined that the death was due to unknown poison containing of chemicals. P.W. 9 is the another formal witness. He prepared the inquest report Exhibit 1. Unnatural death at in-laws place obviously causes eyebrows. A victim woman may commit suicide by hanging or burning for various reasons. A woman ties the knot of marriage only to find peace and shelter in safe and sound care of her husband. Any departure of such human behaviour has to be taken with a grain of salt. It is not expected from parents or relations of acquaintances that they will falsely rope husband and his relations only to wreck vengeance and punish husband or her in-laws even when the victim dies due to her extra-marital relationship if any or mental frustration or depression etc. on account of other reasons. The probative value and intention of witnesses has to be taken with a touch of ground reality keeping in view the fact that their beloved known victim was tortured and that is why the death was propelled. To attract section 304B of the Indian Penal Code, the following conditions must be fulfilled: (i) the death of woman must have been caused by burns or bodily injury or otherwise than under normal circumstances; (ii) such death must have occurred within seven years of her marriage; (iii) soon before her death, the woman must have been subjected to cruelty of harassment by her husband or any relatives of her husband; (iv) such cruelty or harassment must be for, or in connection with demand for dowry. When the above ingredients are established by reliable and acceptable evidence, such death shall be called dowry death and such husband or his relatives shall be deemed to have caused her death. If the abovementioned ingredients are attracted in view of the special provision, the court shall presume and it shall record such fact as proved unless and until it is disproved by the accused. However, it is open to the accused to adduce such evidence for disproving such compulsory presumption as the burden is unmistakably on him to do so and he can discharge such burden by getting an answer through cross-examination of prosecution witnesses or by adducing evidence on the defence side. However, it is open to the accused to adduce such evidence for disproving such compulsory presumption as the burden is unmistakably on him to do so and he can discharge such burden by getting an answer through cross-examination of prosecution witnesses or by adducing evidence on the defence side. Section 113B of the Indian Evidence Act, 1872 speaks about presumption as to dowry death which reads as under: “113B. Presumption as to dowry death-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, any demand for dowry, the court shall presume that such person has caused the dowry death. In the present case following factual circumstances stand established: a) the deceased was married to accused no. 1 b) the deceased died at the place of her husband within a span of seven years. c) she died an unnatural death. Therefore, a presumption automatically may arise under section 113B of the Indian Evidence Act. If it is established by the evidence of the prosecution witnesses that the chain is complete suggesting only to the fact that the accused persons perpetrated torture soon before her death over demand of dowry and as such the victim died an unnatural death. The accused persons were examined thoroughly under Section 313 of the Code of Criminal Procedure. It has come from the evidence that soon after incident when the parents of the deceased had been to the house of in-laws’ place, the accused persons were not found there. Even the local witness did not find the accused persons present at the place of occurrence. This gives rise to a question why the accused persons were not found in the house? while the accused persons were examined under Section 313 of the Code of Criminal Procedure no explanation was given by them to the effect that they were not present on the fateful day at their house. Nor it has been explained where they had been that day. This fact established that the onus of rebutting the presumption lies not on the prosecution but on the accused persons who even did not adduce any D.W. Now the question is whether the oral evidence on the prosecution witness can be relied on. Nor it has been explained where they had been that day. This fact established that the onus of rebutting the presumption lies not on the prosecution but on the accused persons who even did not adduce any D.W. Now the question is whether the oral evidence on the prosecution witness can be relied on. In this regard, there is no direct eyewitness. So, apparently whether reliability on prosecution witness can be made or not is to be considered. The learned counsel for the appellant cited before me the following decisions: i) Mungeshwar Prasad Chaurasia & Anr. vs. State of Bihar 2004 SCC (Cri) 458 ii) Kunhiabdulla & Anr. vs. State of Kerala 2004 SCC (Cri) 907 iii) Balwant Singh & Anr. vs. State of Punjab 2004 SCC (Cri) 2057 iv) Harjit Singh vs. State of Punjab (2006) 1 SCC (Cri) 417 v) Biswajit Halder @ Babu Halder & Anr. vs. State of W.B. (2008) 1 SCC (Cri) 172, and vi) State of Haryana vs. Inder Singh 2003 SCC (Cri) 1239 I have read between the lines of such decisions. Respectfully, I opine that those decisions are not helpful to the appellants of the present case for reasons recorded hereunder. I like to put on record that there are divergent opinions propounded by different courts but what has to be taken up is a matter of question. In Kansraj –vs- State of Punjab as reported in AIR 2000 SCC 2324 the Hon'ble Apex Court held “the statement made by the deceased wife to her parents, brothers and acquaintances before her death would not be admissible in evidence in view of provisions of Section 32 of the Evidence Act. In (2010)1 SCC (Cri.) 955 (Bhairan Singh –vs-State of Madhya Pradesh, the Hon’ble Apex Court held that the statement of dead person is admissible in law if the statement is as to cause of death or as to any circumstances of transactions which resulted in her death in a case in which cause of death comes to the question. In case where the deceased had told the witnesses against the accused persons, above torture and harassment, is inadmissible under Section 32(1) and such evidence cannot be looked into for any purpose. In case where the deceased had told the witnesses against the accused persons, above torture and harassment, is inadmissible under Section 32(1) and such evidence cannot be looked into for any purpose. In Amar Singh vs. State of Rajasthan reported in (2010) 9 SCC 64 the Hon’ble Supreme Court held as follows: “A. Penal Code, 1860 – Sections 304B and 498A and Section 113B, evidence Act, 1872 – Presumption as to dowry death – W hen arises- Prosecution proving that soon before her death deceased had been subjected by appellant to taunts in connection with demand for dowry – Held, once such a fact is established, court has to presume that appellant has committed offence under Section 304B- It is for appellant to rebut this presumption- appellant had not examined any defence witness to rebut the presumption and in his examination under Section 313 of the Code of Criminal Procedure had merely denied the allegations- Hence, conviction of appellant sustainable. B. Evidence Act, 1872- Sections 32(1) and 60-“circumstances of transaction which resulted in death”- admissibility of statement made by living person under Section 32(1) – Held, even if deceased was nowhere near expection of death, still her statement would become admissible under Section 32(1) , though not as a dying declaration as such, provided it satisfies one of the two conditions set forth therein – statements made by deceased before PWs 4 and 5 (her mother and brother respectively) that appellant used to taunt and harass her for dowry within couple of months before her death- Held, evidence of PW s with regard to statement made by deceased is no doubt hearsay, but is admissible under Section 32(1) as to “circumstances of transaction which resulted in her death” – criminal trial – Confession- Extrajudicial confession/Here say- admissibility”. In Mustafa Shahadal Shaikh –vs- State of Maharashtra reported in (2013)1 SCC (Cri) 664, the Hon'ble Apex Court held that “ dowry death-suicide by bride within 7 months of marriage by consuming poison-application of evidence – cruelty-proximity test – Soon before her death’ –Related witnesses only- conviction confirmed. It was held therein in a case of this nature that is matrimonial death, outsiders cannot be expected to come and depose what had happened in family of deceased – time period which can come within term soon before her death is to be determined by courts depending upon facts and circumstances of each case. It was held therein in a case of this nature that is matrimonial death, outsiders cannot be expected to come and depose what had happened in family of deceased – time period which can come within term soon before her death is to be determined by courts depending upon facts and circumstances of each case. Though language used is “soon before her death”, no definite period has been enacted and the expression “soon before her death” has not been defined in both the enactments (Section 304B IPC and Section 113B, Evidence Act), accordingly, determination of period which can come within term “soon before her death” is to be determined by courts, depending upon facts and circumstances of each case. However, the said expression would normally imply that interval should not be much between cruelty or harassment concerned and death in question. There must be existence of a proximate and live link between effect of cruelty based on dowry demand and death concerned. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of woman concerned, it would be of no consequence. In (2013) 1 SCC (Cri) 199 Tulshiram Sahadu Suiryawanshi & Anr. –vs- State of Maharashtra, the Hon’ble Supreme Court held that “ A fact otherwise doubtful may be inferred from certain other proved facts. W hen inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as to the most probable position. The above position is strengthened in view of Section 114 of the Evidence Act, 1872. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process, the courts shall have regard to the common course of natural events, human conduct, etc. in addition to the facts of the case. In these circumstances, the principles embodied in Section 106 of the Evidence Act can also be utilized. In that process, the courts shall have regard to the common course of natural events, human conduct, etc. in addition to the facts of the case. In these circumstances, the principles embodied in Section 106 of the Evidence Act can also be utilized. Section 106 however, is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but it would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, has offered an explanation which might drive the court to draw a different inference. (Soon after death, the accused persons were not found present at their home). In 2013 CRI L.J. 689 (Kashmir Kaur & Anr. –vs- State of Punjab, the Hon’ble Apex Court has held that “ Section 304B is an exception to the cardinal principles of criminal jurisprudence that a suspect in the Indian law is entitled to the protection of Article 20 of the Constitution, as well as, a presumption of innocence in his favour. The concept of deeming fiction is hardly applicable to criminal jurisprudence but in contradistinction to this aspect of criminal law, the legislature applied the concept of deeming fiction to the provisions of Section 304B IPC. Such deeming fiction resulting in a presumption is, however, a rebuttable presumption and the husband and his relatives, can, by leading their defence prove that the ingredients of Section 304B were not satisfied. The specific significance to be attached is to the time of the alleged cruelty and harassment to which the victim was subjected to the time of her heath and whether the alleged demand of dowry was in connection with the marriage. Once the said ingredients were satisfied it will be called dowry death and by deemed fiction of law the husband or the relatives will be deemed to have committed that offence.” The case at hand shows that in the morning on the fateful day i.e., soon before her death, there was quarrel and the victim was asked to commit suicide on the question of non-fulfillment of dowry. So the probative link between the factum of death and the origin of provocation soon before her death is found established in this case. So the probative link between the factum of death and the origin of provocation soon before her death is found established in this case. A question may arise that whether simply basing on the statement of the relation-witness as well as some villagers who heard about the factum of torture from the mouth of the victim or her relation can be taken into consideration or not. The court is not only for the prosecution but also for the defence. The duty of the court is not to purge materials on record only to pick up holes and infirmities to let off real culprits. There may be certain situations when the findings of the court should have a touch of sensitivity derived out of the probability of particulars offence. In this type of case a young woman left the world for good. Whether she had any mental injury otherwise or was frustrated in love affairs elsewhere or she died or for any other pain or of disease are the questions the answer of which should be given by the defence in order to rebut the prosecution under Section 113B of the Indian Penal Code. In absence of clear rebuttal, death of a woman at such age obviously gives rise to a probability that it is only the husband and the other relations who have committed the offence. It is correct that some times the statement made by the deceased to her parents may be inadmissible under Section 32(1) of the Evidence act. But if the case shows that the torture relates to death of the victim, that may be admissible because such evidence is intertwined elegantly with other transaction inseparably to complete the chain of incident culminating in the death of the victim lady. However, there is another aspect. In case of conflict between the findings of two co-ordinate Benches of the Hon’ble Apex Court what is to be done. In this regard my humble opinion is that I may have recourse to the decision of Kamleshkumar Ishwardas Patel –vs-Union of India and others as reported in All India Criminal Law Reporter page 117. However, there is another aspect. In case of conflict between the findings of two co-ordinate Benches of the Hon’ble Apex Court what is to be done. In this regard my humble opinion is that I may have recourse to the decision of Kamleshkumar Ishwardas Patel –vs-Union of India and others as reported in All India Criminal Law Reporter page 117. The relevant portion of principles laid down therein read as under: “Constitution of India, Article, 141 – Precedent – Contrary decisions of the Supreme Court emanating from Benches of co-equal strength – Not necessary for the High Court to follow the decision later in point of time – Decision which in the view of the High Court is better in point of law to be followed – Procedure to be followed explained.” Here in this case considering the materials on record the evidence of the independent witness the consciousness of the court is towards the acceptance of the views as propounded in (2010) 9 SCC 64 (supra). Accordingly, I am of the view that the laws laid down therein may be put into application in this case. The judgment of the court below otherwise appears to be speaking in nature. The learned trial court dealt with all the relevant facts in a reasoned way. I do not find any material irregularity to warrant any interference. The case appeared to have been proved by prosecution. Accordingly, the appeal has got no merits. The same stands dismissed. The appellants are on bail. They are directed to surrender before the learned court below by 30.6.13 to serve out the sentence failing which the learned court below should be at liberty to take coercive measure for securing presence of the appellant. The lower court record be sent down immediately to the learned court below. Urgent certified copy of this judgment and order, if applied for, be given to the parties on priority basis.