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2013 DIGILAW 708 (GAU)

Jayanta Deka v. State of Assam

2013-09-26

I.A.ANSARI

body2013
JUDGMENT Iqbal Ahmed Ansari, J. 1. This is an appeal against the judgment and order, dated 17.08.2009, passed, in Sessions Case No. 52 of 2006, by the learned Sessions Judge, Nalbari, convicting the two accused-appellants, namely, Jayanta Deka and Basanti Deka, under Section 304B IPC, and sentencing each of them to suffer rigorous imprisonment for a period of 7(seven) years. The prosecution's case, as unfolded at the trial, may, in brief, be described as under: (i) Deceased Anjali Deka was the wife of accused Jayanta Deka; whereas accused Basanti Deka is the wife of Nripen Deka, elder brother of accused Jayanta Deka. During her marital life, Anjali Deka had been subjected to torture by her husband, accused Jayanta Deka, who had raised demand for dowry. Anjali Deka (since deceased) was also disturbed by the fact that the accused Jayanta Deka had illicit relationship with his sister-in-law, accused Basanti Deka. Accused Jayanta Deka used to work at Guwahati, but he hails from Belsor, under Belsor Police Station. (ii) On 19.11.2004, PW 1, father of the deceased Anjali, received information from a PCO, located near the matrimonial house of the said deceased, that Anjali was missing. On receiving the information, PW 1 rushed to the house of the accused and, on arriving there, he saw a gathering of people and came to learn from them that Anjali's dead body had been found floating in the water of a local pond. Thereafter, PW 1 went to Belsor Police Station, where he came to learn that Anjali's dead body was taken to Civil Hospital, Nalbari. On arriving at the Civil Hospital, Nalbari, PW 1 saw the dead body of his daughter, Anjali, lying with injuries on her shoulder and back. PW 1, then, lodged a written Ejahar (Ext. 1) on 20.11.2004, at Belsor Police Station. Treating the said Ejahar as First Information Report, Belsor Police Station Case No. 148 of 2004 was registered, under Sections 302 /201 /34 IPC, against the two accused, namely, Jayanta Deka and Basanti Deka, who had been named as accused in the FIR. (iii) During the course of investigation, inquest was held over the said dead body, which was also subjected to post mortem examination and on completion of investigation, a charge sheet was laid, under Section 302 /201 /34 IPC, against the two accused aforementioned. 2. (iii) During the course of investigation, inquest was held over the said dead body, which was also subjected to post mortem examination and on completion of investigation, a charge sheet was laid, under Section 302 /201 /34 IPC, against the two accused aforementioned. 2. At the trial, when a charge, under Section 304B IPC, was framed against the accused, both the accused pleaded not guilty thereto. 3. In support of their case, prosecution examined 8(eight) witnesses. The accused were, then, examined under Section 313(1)(b) Cr.P.C. and, in their examinations aforementioned, they denied that they had committed the offence, which was alleged to have been committed by them, the case of the defence being that of total denial. No evidence was adduced by the accused. 4. Having, however, come to the conclusion that the two accused aforementioned stood proved, beyond reasonable doubt, guilty of offence under Section 304B IPC, the learned trial Court convicted them accordingly and passed sentences against them as mentioned above. 5. Aggrieved by their conviction and the sentences, which had been passed against them, the two accused, as convicted persons, have preferred this appeal. 6. I have heard Mr. B.M. Choudhury, learned counsel for the appellants, and Mr. K.A. Mazumdar, learned Additional Public Prosecutor, Assam. 7. While considering the present appeal, let us marshal the evidence on record with the evidence of the informant. 8. According to the evidence of the informant (PW 1), his daughter, Anjali Deka, was married to the accused on 25.07.2003 and Anjali died on 19.11.2004, i.e., barely within a period of 1 years of her marriage with accused Jayanta Deka. 9. What is relevant to note in the evidence of PW 1 is that he has deposed that Anjali reported to him that she had been tortured by accused Jayanta Deka by raising demand for dowry. What is, however, immensely important to note, in this regard, is that neither PW 1 has deposed nor the prosecution has elicited from him as to when the alleged demand for dowry was raised, where the demand was raised and what was the nature of demand in the sense as to whether any money was demanded or any material or property had been demanded as dowry. This apart, nothing has also been elicited by the prosecution to bring on record as to how, when and where PW 1's daughter, Anjali, had been subjected to torture by accused Jayanta. 10. Though PW 1 has deposed that Anjali also reported to him that her husband, accused Jayanta Deka, had illicit relation with his sister-in-law, Basanti Deka, there is not even an iota of evidence on record establishing, far less proving, any illicit relationship being maintained by accused-appellant, Jayanta Deka, with the co-accused, Basanti Deka. 11. Situated thus, it is wholly impossible to hold that accused Jayanta Deka had any illicit relation with co-accused, Basanti Deka, or that he had raised any demand for dowry or subjected Anjali to cruelty. 12. What is of utmost importance to note, while considering the present appeal, is that it is the evidence of PW 1 himself that his son-in-law, accused Jayanta Deka, works at Guwahati; whereas matrimonial house of accused Anjali was at Belsor. There is not even a particle of evidence on record to show that on the day of the occurrence (i.e., on 19.11.2004), when the dead body of Anjali was found, either accused Jayanta Deka or accused Basanti Deka was present in the house, where Anjali was present or lived. It is the evidence of PW 1 that on 19.11.2004, he was informed by a person from PCO that Anjali was missing and when he reached Jayanta Deka's house, he found a gathering of people, who told him that Anjali's dead body had been found and taken to Belsor Police Station, whereupon he went to Belsor Police Station, but came to learn there that Anjali's dead body had been taken to Civil Hospital, Nalbari. It is also in the evidence of PW 1 that on reaching Civil Hospital, Nalbari, he saw Anjali's dead body, which bored injuries on her shoulder or back, and that he, then, lodged Ejahar, which is Ext. 1. 13. The identity of the person, who had allegedly informed PW 1 remained undisclosed. What can also not be ignored in the fact that PW 1 himself admits, in his cross-examination, that he had lodged the Ejahar on suspicion. 1. 13. The identity of the person, who had allegedly informed PW 1 remained undisclosed. What can also not be ignored in the fact that PW 1 himself admits, in his cross-examination, that he had lodged the Ejahar on suspicion. Moreover, there is no evidence that PW 1 met accused-appellant, Basanti, in or around the matrimonial house of the said deceased nor is there any evidence to show that PW 1 met his son-in-law, Jayanta Deka, in the matrimonial house of his daughter. In fact, it has not been in dispute that Jayanta Deka used to work at Guwahati. Whether, therefore, accused-appellant, Jayanta Deka and/or Basanti Deka, were present at the house, where Anjali stayed or lived last, is the question, which remains unanswered. 14. Bearing in mind, thus, the fact that the presence of none of the two accused-appellants at the house, where Anjali was present on 19.11.2004, has been proved by the prosecution. 15. Bearing in mind also the fact that PW 1 concedes, in his cross-examination, that there is a case pending against his son, because his son had assaulted the accused persons. 16. When I proceed further with the evidence on record, I find that PW 1 does not give any direct or indirect evidence, implicating any of the two accused-appellants as persons, who had killed his daughter, Anjali. 17. As far as PW 2, PW 3 and PW 4 are concerned, all three of them turned hostile and did not support the case of the prosecution. Except putting to these witnesses their previous statements, which had allegedly been made by these witnesses to the police during investigation, nothing has been elicited by the prosecution to show that any of the two accused-appellants had caused, or were responsible for, the death of Anjali. 18. There is also no substantive evidence on record that Anjali had been subjected to torture by any of the accused-appellants or that any demand for dowry had been raised by any of the two accused-appellants. In fact, PW 2 has been categorical in his evidence that he had never seen accused Jayanta Deka assaulting his wife nor had he seen any quarrel between Anjali and her husband. 19. So far as PW 7 is concerned, he is merely a witness to the inquest, which was held on Anjali's dead body. 20. In fact, PW 2 has been categorical in his evidence that he had never seen accused Jayanta Deka assaulting his wife nor had he seen any quarrel between Anjali and her husband. 19. So far as PW 7 is concerned, he is merely a witness to the inquest, which was held on Anjali's dead body. 20. This Court is, therefore, left with the evidence of the doctor (PW 6) and Investigating Officer (PW 8). 21. The doctor (PW 6), who had, admittedly, conducted post mortem examination on the dead body of Anjali, on 21.11.2004, found as follows: Dead body of a female of 22 years of age, rigormortis present, whole body swollen, eyes closed, mouth closed, tearing of left ear lobe, margin was stained with blood, horizontal abrasion at the roof of the neck and to the front, one in each side of the midline, size right side 2.5 c.ms. x 1 cm and left side 2 c.ms. x 1 cm and both are 3 c.ms. above the clavicle. No cut mark is seen. He found abrasion in the abdomen 2 c.ms. from the umbilicus, right side, size 3 c.ms. x 2 c.ms. Froth present in the larynx and trachea. Stomach contained with large amount of fluid. Both lungs contained air and fluid. Suggestive of drowning. External injuries were ante-mortem and homicidal in nature. Drowning is anti-mortem. 22. In the opinion of the doctor that the death was due to asphyxia following drowning. 23. Though the findings of the doctor were not disputed by the defence, the learned trial Court has taken the view that Anjali did not die, because of drowning. The learned trial Court's judgment is, however, not clear as to how Anjali's death could have been described as homicidal. 24. At any rate, the question, which faced the learned trial Court, and the question, which confronts this Court, in the present appeal, is: Whether the two accused-appellants or any of them was responsible, in any manner, for the death of Anjali. 25. With regard to the above, the learned trial Court, as discernible from the impugned judgment, has held the two accused-appellants responsible for the death for Anjali on the ground that they have not been able to established as to how Anjali died, when the two accused were in the same house as Anjali. 25. With regard to the above, the learned trial Court, as discernible from the impugned judgment, has held the two accused-appellants responsible for the death for Anjali on the ground that they have not been able to established as to how Anjali died, when the two accused were in the same house as Anjali. Strangely enough, there is no evidence on record, as already pointed out above, that on 19.11.2004, any of the two accused was present in the house, where Anjali was present. In the absence of any such evidence, the conclusion, which the learned trial Court has derived, has to be held as devoid of any substance, based on conjecture and surmises. To put it pithily, the conclusion, reached by the learned trial Court, cannot but be described as perverse. 26. What emerges from the above discussion is that there is no evidence on record that any of the two accused-appellants was responsible for the death of Anjali nor is there any evidence, if I may reiterate, that Anjali had been subjected to cruelty or any demand for dowry was raised. There can be no doubt that Anjali's death is mysterious and took place in suspicious circumstances inasmuch as the doctor has found the left ear lobe of Anjali had been torn with its margin stained with blood and horizontal abrasion at the roof of the neck. Notwithstanding these injuries, the fact remains that in the absence of any credible and concrete evidence proving allegations of demand for dowry having been raised by the accused-appellant, mere fact, that Anjali died in unnatural circumstances, could not have led, and ought not to have led, the learned trial Court to hold the two accused-appellants guilty of the offence of dowry death. 27. Situated thus, this Court is clearly of the view that the evidence, adduced by the prosecution, was grossly inadequate to hold, confidently and boldly, the two accused-appellants guilty of the offence, which they stood charged with. 28. In the result and for the reasons discussed above, this appeal succeeds. The impugned conviction of the accused-appellants and the sentences passed against them by the judgment and order, under appeal, are hereby set aside. The accused-appellants are held not guilty of the offence of which they stand convicted of and are acquitted of the same. 29. 28. In the result and for the reasons discussed above, this appeal succeeds. The impugned conviction of the accused-appellants and the sentences passed against them by the judgment and order, under appeal, are hereby set aside. The accused-appellants are held not guilty of the offence of which they stand convicted of and are acquitted of the same. 29. As both the accused-appellants are on bail, their bail bonds are cancelled and their sureties stand discharged. Send back the LCR.