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2015 DIGILAW 247 (TRI)

Nishi Kanta Das v. State of Tripura

2015-05-06

S.TALAPATRA, U.B.SAHA

body2015
JUDGMENT S. Talapatra, J. 1. This is an appeal under Section 374(2) of the Cr.P.C. by the convicts, hereafter referred to as the appellants, against the judgment dated 29.08.2014 delivered in Sessions Trial Case No.ST 27(WT/K) of 2012 convicting the appellants under Sections 304-B and 498-A of the I.P.C. As consequence of that conviction, the appellants have been sentenced to suffer rigorous imprisonment for a period of 10 years under Section 304-B of the I.P.C. with fine of Rs.2,000/- and to suffer rigorous imprisonment for two years and to pay fine of Rs.2,000/-, in default to suffer simple imprisonment for further 2 months for commission of offence under Section 498-A of the I.P.C. The sentences are to run concurrently. 2. The police started investigation when they received a complaint on 07.12.2012 from one Shankar Das (PW-1) disclosing that his daughter Aiswarya Das @ Sonai married Krishna Kanta Das, the appellant No.2 as per Hindu Rites and Customs. As father, he gave a cash of Rs.50,000/-, gold jewelry, furnitures and all other articles to the bridegroom as per their demand at the time of marriage. For about five months his daughter lived happily but after that the appellant No.2 send Sonai, the victim hereinafter, to the house of informant for bringing a sum of Rs.4,00,000/- for doing business. Initially the informant declined to give such a large amount of money. As fall out of that refusal, the appellant No.2 having been collaborated by the other accused persons namely, Nishi Kanta Das, the appellant No.1, Manik Das, Milan Rani Das, Rama Rani Gupta (Das) continued to harass his daughter by afflicting physical and mental torture. The accused persons used to provoke his daughter to die by consuming poison in the event of her failure in brining the cash. Persuaded by such circumstances, the informant paid a sum of Rs.2,00,000/- to his son-in-law, the appellant No.2 in presence of other accused persons on 10th Aswin of the previous year. But the harassment did not come to an end. The informant has disclosed in the written ejahar (Exbt.1) that the said cash was also paid in presence of one Shyamal Singha Chowdhury (PW-4) of his locality. Very often his daughter used to narrate the physical torture being afflicted on her by the accused persons to order to pressurize her for bringing more money. The informant has disclosed in the written ejahar (Exbt.1) that the said cash was also paid in presence of one Shyamal Singha Chowdhury (PW-4) of his locality. Very often his daughter used to narrate the physical torture being afflicted on her by the accused persons to order to pressurize her for bringing more money. On 30.01.2012, the accused persons started torture on his daughter physically for bringing the cash amounting to Rs.1,00,000/-. His daughter informed him about such demand. On 04.01.2012 and 05.01.2012 his daughter came to his house and informed him about torture. She had also expressed apprehension that she might be killed by the accused persons if the cash was not given. The informant could not that time give the cash for his financial inability. On 06.02.2012 at 1 O’clock at night his daughter informed him over telephone about the cruel/ruthless torture afflicted on her. At that moment, the appellant No.2 snatched the away the mobile from her hand and asked the informant to come to their house in the morning of the next day. On the following day at about 8.30 am one boy of his locality came by riding a bike and informed him that his daughter was ill and asked him to rush immediately. On arriving at the house of the accused persons, the informant found that his daughter was lying dead in a room in the burnt condition. In the written ejahar he has stated that ‘I believe the accused persons have killed my daughter and burnt her on fire’. 3. Based on the said complaint, Khowai Police Station Case No.13 of 2012 under Sections 304-B/34 of the I.P.C was registered on 07.02.2012 and taken up for investigation. On completion of the investigation, the police papers were committed to the court of the Addl. Sessions Judge, West Tripura, Khowai as the offence was to be tried exclusively by the court of Sessions. The Addl. Sessions Judge, West Tripura, Khowai, hereinafter referred to as the trial court framed the charge against all the accused persons as stated under Sections 304-B and 498-A of the I.P.C. and he framed one alternative charge under Section 302 of the I.P.C. The accused persons denied the charge on pleading innocence and claimed to face the trial. 4. The Addl. Sessions Judge, West Tripura, Khowai, hereinafter referred to as the trial court framed the charge against all the accused persons as stated under Sections 304-B and 498-A of the I.P.C. and he framed one alternative charge under Section 302 of the I.P.C. The accused persons denied the charge on pleading innocence and claimed to face the trial. 4. In order to substantiate the charge, the prosecution adduced as many as 20(twenty) witnesses including the informant, Shyamal Singha Chowdhury (PW-4) and the investigating officers. That apart, as many as 16 documentary evidence (Exbts. 1 to 16) including the inquest report (Exbt.2) and postmortem report (Exbt.16) were introduced in the evidence, whereas the defence has adduced 4(four) documentary evidence (Exbts.A to D), mostly the excerpts of the statements recorded under Section 161 of the Cr.P.C. by the investigating officers. After the evidence from the prosecution was recorded, the accused persons were separately examined under Section 313 of the Cr.P.C. for having their response on the incriminating materials surfaced in the evidence led by the prosecution. On purported appreciation of the evidence, the trial court returned the said finding of conviction. The said finding is under challenge in this appeal. 5. Mr. D.K. Deb, learned counsel appearing for the appellants has broadly submitted that there is no legal evidence to return the finding of conviction. The conviction is wholly unwarranted in law and as such, he has urged for re-appreciating the evidence and setting aside the impugned judgment of conviction. Mr. Deb, learned counsel in the course of his submission has contended that the various contradictions and omissions amounting to contradictions were not at all considered. Apart that, the statements which cannot be admitted in the evidence unless excepted under Section 32(1) of the Evidence Act have been read in the evidence. Mr. Deb, learned counsel has referred to the testimony of Shyamal Singha Chowdhury (PW-4), who according to the informant, the father of the deceased was present when he paid the cash of Rs.2,00,000/-, to emphasize that the informant has distorted the truth deliberately as PW-4 has stated as under: ‘He asked me to go with him but I could not go as otherwise engage and then Shankar alone went to the matrimonial house of Sonai and made payment of Rs.2,00,000/- to the father of Krishna Kanta calling other members of his family as Shankar told me.’ Mr. Deb, learned counsel has thus contended that the payment of the cash as alleged has not at all been proved. Even PW-12, Tapan Kr. Datta did not support the material parts of the testimony of PW-1 as PW-12 has stated that he did not extend any loan as such but he had assured him of giving Rs.80,000/- and for premium another sum of Rs.50,000/-. After some days, PW-1 deposited another sum of Rs.70,000/- on stating that he would collect the entire amount of Rs.2,00,000/- from him on 24.09.2011 and accordingly, he collected the said amount. His statement that PW-1 deposited Rs.70,000/- saying that on 24.09.2011 on stating that he would collect Rs.2,00,000/- from him was not however available in his previous statement recorded by the investigating officer under Section 161 of the Cr.P.C. 6. Mr. Deb, learned counsel has further submitted that even the conversation between his daughter and his, cannot be believed for the reason that the testimonies in this regard are so divergent that cannot be relied at all. Neither PW-1 nor any other witness ever come across directly has claimed to have that the appellants either were harassing the informant’s daughter or subjecting her to any form of cruelty. As such, what was allegedly narrated by the victim, the daughter of the informant cannot be excepted under Section 32(1) of the Evidence Act inasmuch as those statements are not related to the transaction of her death. While summing up his submission, Mr. Deb, learned counsel has submitted that there is no evidence that there was any harassment soon before the death of the informant’s daughter or there was any demand for dowry except a few bald statements from the informant and the relatives no other evidence could be adduced by the prosecution to prove the dowry death or infliction of cruelty on unlawful demand. 7. Mr. Deb, learned counsel has referred Appasaheb and another vs. State of Maharashtra, reported in (2007) 9 SCC 721 , where the apex court has held that: 10. Section 2 of Dowry Prohibition Act reads as under :- "2. 7. Mr. Deb, learned counsel has referred Appasaheb and another vs. State of Maharashtra, reported in (2007) 9 SCC 721 , where the apex court has held that: 10. Section 2 of Dowry Prohibition Act reads as under :- "2. Definition of ‘dowry’ - In this Act ‘dowry’ means any property or valuable security given or agreed to be given either directly or indirectly- (a) by one party to a marriage to the other party to the marriage; or (b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dowry or mahr in the case of persons to whom the Muslim Personal Law (shariat) applies. 11. In view of the aforesaid definition of the word "dowry" any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. It is well settled principle of interpretation of Statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning. (See Union of India v. Garware Nylons Ltd.: (1996) 10 SCC 413 and Chemicals and Fibres of India v. Union of India, AIR (1997) SC 558). A demand for money on account of some financial stringency or for meeting some urgent domestic expenses of for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. A demand for money on account of some financial stringency or for meeting some urgent domestic expenses of for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. The evidence adduced by the prosecution does not, therefore, show that any demand for "dowry" as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure. Since an essential ingredient of Section 304-B IPC viz. demand for dowry is not established, the conviction of the appellants cannot be sustained. [Emphasis added] A reliance for the same purpose has been placed on Sanjit Das vs. State of Tripura, reported in (2013) 2 TLR 525, where this court has held that: 20. It has been held in Satvir Singh(supra) that there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third is “at any time” after the marriage. The third occasion may appear to be an unending period. But the crucial words are “in connection with the marriage of the said parties”. This implies that giving or agreeing to give any property or valuable security on any of the above three stages should have the connection with the marriage of the parties to bring such transaction within the sweep of dowry. There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or with other ceremonies as prevalent in different societies cannot be enveloped within the ambit of ‘dowry’. This observation has been furthermore crystallised by the apex court in Appasaheb (supra). 8. On the same aspect, Mr. Deb, learned counsel has referred to State of Tripura vs. Dulal Dey, reported in (2008) 1 GLR 637, where relying on Reema Aggarwal vs. Anupam, reported in AIR 2004 SCW 344, it has been held that the definition of term ‘dowry’ as provided under Section Dowry Prohibition Act is quite comprehensive one but the meaning is restrictive. All demands do not come within the sweep of the term ‘dowry’. Such demand must be at or before or after the marriage as consideration for the marriage of the said parties. 9. All demands do not come within the sweep of the term ‘dowry’. Such demand must be at or before or after the marriage as consideration for the marriage of the said parties. 9. In Rohtash vs. State of Haryana, reported in 2012 Cri.L.J. 3189, the apex court has succinctly held that: 16. In view of above, we are of the considered opinion that in the instant case there had been major improvements/embellishments in the prosecution case and demand of Rs. 10,000/- by the Appellant does not find mention in the statements Under Section 161 Code of Criminal Procedure. More so, even if such demand was there, it may not necessarily be a demand of dowry. Further, the chemical analysis report falsifies the theory of suicide by deceased taking any pills. In such a fact-situation, the defence taken by the Appellant in his statement Under Section 313 Code of Criminal Procedure. could be plausible. Mr. Deb, learned counsel having placed reliance on Appasaheb and another vs. State of Maharashtra, Rohtash vs. State of Haryana, Sanjit Das vs. State of Tripura and State of Tripura vs. Dulal Dey has contended that even if the allegation is assumed to be true then also said demand does not come within the definition of dowry as the said amount has admittedly been sought for business, not in connection with the marriage of the parties. 10. Mr. Deb, learned counsel has relied on a few decisions of the apex court as well as of this Court to contend that unless harassment soon before the occurrence is determined by the trial court depending the fact and circumstances as proved in the case, no conviction can be returned under Section 304-B of the I.P.C. even on taking aid of Section 113(B) of the Evidence Act. In Monoharlal vs. State of Haryana, reported in (2014) 9 SCC 645 , it has been held : 17. Section 304B Indian Penal Code relates to dowry death and reads as follows: 304B. In Monoharlal vs. State of Haryana, reported in (2014) 9 SCC 645 , it has been held : 17. Section 304B Indian Penal Code relates to dowry death and reads as follows: 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. Explanation.-For the purpose of this Sub-section, "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. 18. For the purpose of the said Section, a presumption can be raised only on proof of the following essentials: (a) Death of the woman was caused by burns or bodily injury or occurs otherwise than under normal circumstances. (b) Such death took place within seven years of her marriage. (c) The woman was subjected to cruelty or harassment by her husband or his relatives. (d) Such cruelty or harassment was for, or in connection with, any demand for dowry and (e) Such cruelty or harassment was soon before her death. In this connection, we may refer decision of this Court in Kaliaperumal v. State of Tamil Nadu : (2004) 9 SCC 157 . 19. In Sunil Bajaj v. State of M.P. : (2001) 9 SCC 417 , this Court held: 5. We have given our attention and consideration to the submissions made by the learned Counsel for the parties. Normally this Court will be slow and reluctant, as it ought to be, to upset the order of conviction of the trial court as confirmed by the High Court appreciating the evidence placed on record. We have given our attention and consideration to the submissions made by the learned Counsel for the parties. Normally this Court will be slow and reluctant, as it ought to be, to upset the order of conviction of the trial court as confirmed by the High Court appreciating the evidence placed on record. But in cases where both the courts concurrently recorded a finding that the accused was guilty of an offence in the absence of evidence satisfying the necessary ingredients of an offence, in other words, when no offence was made out, it becomes necessary to disturb such an order of conviction and sentence to meet the demand of justice. In order to convict an accused for an offence Under Section 304B Indian Penal Code, the following essentials must be satisfied: (1) the death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances; (2) such death must have occurred within 7 years of her marriage; (3) soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband; (4) such cruelty or harassment must be for or in connection with demand of dowry. 6. It is only when the aforementioned ingredients are established by acceptable evidence such death shall be called "dowry death" and such husband or his relative shall be deemed to have caused her death. It may be noticed that punishment for the offence of dowry death Under Section 304B is imprisonment of not less than 7 years, which may extend to imprisonment for life. Unlike Under Section 498A Indian Penal Code, husband or relative of husband of a woman subjecting her to cruelty shall be liable for imprisonment for a term which may extend to three years and shall also be liable to fine. Normally, in a criminal case the accused can be punished for an offence on establishment of commission of that offence on the basis of evidence, maybe direct or circumstantial or both. Normally, in a criminal case the accused can be punished for an offence on establishment of commission of that offence on the basis of evidence, maybe direct or circumstantial or both. But in case of an offence Under Section 304B Indian Penal Code, an exception is made by deeming provision as to nature of death as "dowry death" and that the husband or his relative, as the case may be, is deemed to have caused such death, even in the absence of evidence to prove these aspects but on proving the existence of the ingredients of the said offence by convincing evidence. Hence, there is need for greater care and caution, that too having regard to the gravity of the punishment prescribed for the said offence, in scrutinizing the evidence and in arriving at the conclusion as to whether all the abovementioned ingredients of the offence are proved by the prosecution. In the case on hand, the learned Counsel for the Appellant could not dispute that the first two ingredients mentioned above are satisfied. 20. The expression "soon before her death" used in the Section 304B Indian Penal Code and Section 113B of the Evidence Act was considered by this Court in Hira Lal and Ors. v. State (Govt. of NCT), Delhi : (2003) 8 SCC 80 , which reads as under: 8. Section 304B Indian Penal Code which deals with dowry death, reads as follows: 304-B. 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. Explanation.-For the purpose of this Sub-section, 'dowry' shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. Explanation.-For the purpose of this Sub-section, 'dowry' shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. The provision has application when 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 relatives of her husband for, or in connection with any demand for dowry. In order to attract application of Section 304B Indian Penal Code, the essential ingredients are as follows: (i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance. (ii) Such a death should have occurred within seven years of her marriage. (iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband. (iv) Such cruelty or harassment should be for or in connection with demand of dowry. (v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death. Section 113B of the Evidence Act is also relevant for the case at hand. Both Section 304B Indian Penal Code and Section 113B of the Evidence Act were inserted as noted earlier by Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113B reads as follows: 113-B. 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 had 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 had caused the dowry death. Explanation.-For the purposes of this section, 'dowry death' shall have the same meaning as in Section 304B of the Indian Penal Code (45 of 1860). The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21st Report dated 10-8-1988 on "Dowry Deaths and Law Reform". Explanation.-For the purposes of this section, 'dowry death' shall have the same meaning as in Section 304B of the Indian Penal Code (45 of 1860). The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21st Report dated 10-8-1988 on "Dowry Deaths and Law Reform". Keeping in view the impediment in the pre-existing law in securing evidence to prove dowry-related deaths, the legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background that presumptive Section 113B in the Evidence Act has been inserted. As per the definition of "dowry death" in Section 304B Indian Penal Code and the wording in the presumptive Section 113B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the woman concerned must have been "soon before her death" subjected to cruelty or harassment "for or in connection with the demand of dowry". Presumption Under Section 113B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials: (1) The question before the court must be whether the accused has committed the dowry death of the woman. (This means that the presumption can be raised only if the accused is being tried for the offence Under Section 304B Indian Penal Code.) (2) The woman was subjected to cruelty or harassment by her husband or his relatives. (3) Such cruelty or harassment was for or in connection with any demand for dowry. (4) Such cruelty or harassment was soon before her death. Similar observation was made by this Court in Balwant Singh and Anr. v. State of Punjab : (2004) 7 SCC 724 . In the said case this Court held: 10. These decisions and other decisions of this Court do lay down the proximity test. It has been reiterated in several decisions of this Court that "soon before" is an expression which permits of elasticity, and therefore the proximity test has to be applied keeping in view the facts and circumstances of each case. These decisions and other decisions of this Court do lay down the proximity test. It has been reiterated in several decisions of this Court that "soon before" is an expression which permits of elasticity, and therefore the proximity test has to be applied keeping in view the facts and circumstances of each case. The facts must show the existence of a proximate live link between the effect of cruelty based on dowry demand and the death of the victim. [Emphasis added] 11. On the same aspect, Mr. Deb, learned counsel has relied on Biswajit Halder @ Babu Halder and others vs. State of West Bengal, reported in (2008) 1 SCC 202 , Durga Prasad and another vs. State of Madhya Pradesh, reported in (2010) 9 SCC 73 , Hiralal and others vs. State (Govt. of N.C.T) Delhi, reported in (2003) 8 SCC 80 , Biplab Chakraborty and others vs. State of Tripura, reported in (2011) 6 GLR 775, Atikul Islam and others vs. State of Tripura, reported in (2013) 1 TLR 1108, Anil Sutradhar vs. State of Tripura, reported in (2013) 2 TLR 63, Prtiwish Datta vs. State of Tripura, reported in (2014) 1 TLR 148. For sake of brevity and for avoiding repetition, those reports are not elaborately referred to as it is no more res integra that unless the fact of demand of dowry and harassment for such demand soon before the death be proved, no conviction under Section 304-B of the I.P.C. can be returned as those are the essential ingredients of the offence of dowry death. In State of Rajasthan vs. Teg Bahadur and others, reported in (2004) 13 SCC 300 , the apex court has held on the expression ‘soon before death approvingly’ reproducing the law so enunciated in Hiralal vs. State (Govt. of N.C.T) Delhi as under: "The expression "soon before" is very relevant where Section 113B of the Evidence Act and Section 304B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by the prosecution. "Soon before" is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. Evidence in that regard has to be led by the prosecution. "Soon before" is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113B of the Evidence Act. The expression "soon before her death" used in the substantive Section 304B IPC and Section 113B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression "soon before" is not defined. A reference to the expression "soon before" used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods "soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for their possession". The determination of the period which can come within the term "soon before" is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression "soon before" would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence." [Emphasis added] 12. Mr. Deb, learned counsel has relied on Inderpal vs. State of M.P., reported in (2001) 10 SCC 736 on admissibility of the statements of the deceased allegedly narrated to PWs 1 and 3 on harassment for unlawful demand. In Inderpal vs. State of M.P., it has been held that: 7. Unless the statement of a dead person would fall within the purview of Section 32(1) of the India Evidence Act there is no other provision under which the same can be admitted in evidence. In Inderpal vs. State of M.P., it has been held that: 7. Unless the statement of a dead person would fall within the purview of Section 32(1) of the India Evidence Act there is no other provision under which the same can be admitted in evidence. In order to make the statement of a dead person admissible in law (written or verbal) the statement must be as to the cause of her death or as to any of the circumstance of the transactions which resulted in her death, in cases in which the cause of death comes into question. By no stretch of imagination can the statements of Damyanti contained in Exhibit P-7 or Exhibit P-8 and those quoted by the witnesses be connected with any circumstance of the transaction which resulted in her death. Even that apart, when we are dealing with an offence under Section 498-A IPC disjuncted from the offence under Section 306 IPC the question of her death is not an issue for consideration and on that premise also Section 32(1) of the Evidence Act will stand at bay so far as these materials are concerned. In this regard, he has referred the decision of Biplab Chakraborty vs. State of Tripura, where it has been held that: 34. In the instant case, the entire evidence of the prosecution is based on the statements of the deceased stated to PW12. PW12 in her statement stated that she used to visit the house of the victim deceased and she could not talk with the victim as the mother and sister of accused-Appellant Biplab used to guard her and only on an occasion prior to her death when (PW12) she visited the house of the deceased on her request, then soma disclosed regarding the torture upon her by her husband and other in-laws. The said statement of PW12 cannot be accepted as evidence in view of the bar as provided under Section 32(i) of the Evidence Act and also in view of the judgment of the Apex Court in Inderpal (supra) which is subsequently followed in various decisions of the Apex court as well as by the High Courts. 13. Thus, Mr. The said statement of PW12 cannot be accepted as evidence in view of the bar as provided under Section 32(i) of the Evidence Act and also in view of the judgment of the Apex Court in Inderpal (supra) which is subsequently followed in various decisions of the Apex court as well as by the High Courts. 13. Thus, Mr. Deb, learned counsel has contended that the statements made by the victim to the relative, having not been the statements as to the cause of her death or as to any circumstances of the transactions which resulted in her death are inadmissible in view of provisions of Section 32 of the Indian Evidence Act. 14. At the fag end, Mr. Deb, learned counsel has relied on certain principles relating to appreciation of the evidence. In particular, he has emphasized on appreciation of the circumstantial evidence having referred to Sharad Birdhichand Sarda vs. State of Maharashtra, reported in (1984) 4 SCC 116 , where it has been held by the apex court that the fact in existence if sought to be proved by the circumstantial evidence, particularly the circumstances of the transaction, the following conditions must be fulfilled: (i) circumstances from which the conclusion of guilt is to be drawn must or should be and not merely ‘may be’ fully established, (ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (iii) the circumstances should be of a conclusive nature and tendency, (iv) they should exclude every possible hypothesis except the one to be proved, and (v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused must show that in all human probability the act must have been done by the accused. 15. Mr. 15. Mr. Deb, learned counsel has also relied on Hardeep vs. State of Haryana and another, reported in (2002) 7 SCC 11 in this regard, where the apex court has held that : It is true, as observed by the Trial Court every contradiction or discrepancy may not necessarily be fatal to the prosecution case but it all depends on the facts and circumstances of the case, such discrepancies and contradictions have to be seen in the background of probabilities of the prosecution story and veracity of the prosecution witnesses. In case evidence of prosecution witnesses is above board and unimpeachable and inspires confidence, in the event discrepancies and contradictions here and there may have no value at all but in the case in hand we find that there is finding of false implication of Maha Singh the father of the present appellant. This itself impairs their character as unimpeachable witnesses more so in view of glaring contradictions with the statement of PW 1 Jagdish. Again we find that none but only the brother, the nephew the bhanja and the cousin all within first degree of relationship had been examined on the points of material facts of the case. Even for the purposes of proving the fact of motive they had to rely on the evidence of a witness from their own family, namely, PW-8 Shamsher Singh who is nephew of the complainant and the deceased. If all links and limbs of the prosecution case are weak, they cannot make out a strong case by putting them together. If one link is weak, the other stronger limbs of the prosecution case may make up for the weaknesses but not in the case like this. We have already observed in the earlier part of this judgment that margin of time for the prosecution witnesses who alleged to have arrived at the time of the incident is also very then. In all probability they might not have arrived from a distance of 200/250 feet after the alarm was heard "Mar Diya Mar Diya" as the incident according the Trial Court, as observed and rightly, must have occurred in twinkling of an eye. The circumstances indicated above throw a serious doubt about time of occurrence and presence of witnesses at that time. On the whole the prosecution case does not inspire confidence to believe that the prosecution story must be true. The circumstances indicated above throw a serious doubt about time of occurrence and presence of witnesses at that time. On the whole the prosecution case does not inspire confidence to believe that the prosecution story must be true. Rather all facts and circumstances, discrepancies and false implication of one of the accused, who is none else but the father of the appellant and the observations in that regard made by the Trial Court lead to the inference that prosecution case in all probability may be false. 16. Mr. Deb, learned counsel has emphatically contended that there is no circumstance incriminating the appellants for harassing the victim soon before her death on demand of dowry or for any unlawful demand. The related witnesses improved the version in order to secure the conviction of the appellants for alleviating their grief from the death of the informant’s daughter. Unless those ingredients are proved or evidence has been so led, the presumption of dowry death could not be drawn under Section 113B of the Evidence Act. The appellants cannot be saddled with onus of rebutting the evidence or the presumption on existence of certain fact, till the circumstances so proved do exclude hypothesis of the innocence of the accused persons. 17. From the other side, Mr. R.C. Debnath, learned Addl. P.P. appearing for the State has submitted that there is no infirmity in the order. Dowry death occurs within the four corners of the domestic walls and as such, the standard of proof is bound to vary. On appreciation of the testimonies of the witnesses the trial court has correctly observed while discarding alternative charge of commission of murder against the appellants, that: “it is visible housewife died otherwise then normal circumstances admittedly within 7(seven) years of her marriage and it is shown from the telephonic conversation among the housewife, her parents, sister of her father that soon before that on previous night of the death of the housewife, the housewife was subjected to cruelty or harassment by her husband. And at the death scene, her husband and her father in laws were present. And at the death scene, her husband and her father in laws were present. As revealed from the cross-examination of the witnesses of the neighbourhood of the accused persons and neighbourhood witnesses stated that husband and father in laws of housewife made effort to save the housewife whereas they stated different cause of the death of housewife of which one is accidental death by stove burn while preparing tea and other by suicide on setting fire.” Mr. Debnath, learned Addl. P.P. has further submitted that the omission as recorded was no shown to the investigating officer. Similarly, from the time of occurrence so called accidental death cannot be presumed in the ordinary course of action that no culpable act was there inasmuch as at such early hour of the day no one is expected to attend the kitchen. 18. From the rival contentions raised by the counsel for the parties, the questions that arise are that: (i) Whether there was harassment on demand of dowry soon before the death of the victim which occurred otherwise than normal circumstances? (ii) Whether the statement of the victim relating to infliction of the cruelty on unlawful demand is admissible in the evidence in view of provision of Section 32(1) of the Evidence Act? (iii) Whether the circumstances on which the conviction has been returned has formed the circumstances so complete to exclude the hypothesis of the innocence of the appellants? (iv) Whether the evidence so recorded has been appreciated having regard to the discrepancies and contradictions in the backdrop that those statements were made by closely related persons of the victim and (v) Whether there is evidence of cruelty within the explanation provided below Section 498-A of the I.P.C.? 19. It appears that the prosecution case is rested on the testimonies of PWs-1, 3, 4, 12 & 17. Before the oral testimonies are revisited by this Court, the documents as admitted in the evidence may be appreciated. Exbt.1 is the written complaint/ejahar which has already been introduced. From the Exbt.2, the inquest report, it is found that other than the marks of burn and scorch, no marks of other injuries are found anywhere on the body of the deceased and the deceased is found in naked state. Exbts.3 & 4 is the seizure list of the wearing apparels, kerosene container with kerosene and matchstick box along with other insignificant materials. Exbt. Exbts.3 & 4 is the seizure list of the wearing apparels, kerosene container with kerosene and matchstick box along with other insignificant materials. Exbt. 15 is the seizure list of viscera, whereas Exbt.16 is the postmortem report where it has been categorically opined by the doctor that the cause of death is burn causing cardiac arrest. Burn is of ante mortem and time of death is 12-16 hours prior to the postmortem examination. Postmortem examination was conducted between 1 pm to 3 pm of 06.02.2012, i.e. on the alleged day of occurrence. This piece of evidence might have a serious impact on the circumstantial evidence. In the postmortem report, the description of burn injuries over the person of the victim has been detailed. The body as it appears from the postmortem report was almost charred. The other documentary evidence are excerpts of the statement of the witnesses. Whether there was harassment on demand of dowry soon before the death of the victim which occurred otherwise than normal circumstances? 20. In the written ejahar, PW-1 has categorically stated that the appellant No.2 sent his daughter, the victim for ‘bringing’ the amount of Rs.4,00,000/- ‘for doing business’. In the trial, he has omitted the part ‘for doing business’. In the trial, he has stated that: On 04.02.2011 my daughter Aiswrya came to my house and informed me that her husband Krishna Kanta, her parents in law and brother in law Manik and his wife Rama used to torture her on the demand of Rs.4,00,000/- and on such demand they also put burning sensation on her hand by burning firewood. The burning sensation was given on her right hand. I could not collect money but I assured her to give money. In the re-cross-examination by the defence, PW-1 has admitted that he did not make the above statement to the investigating officer. 21. PW-2, Smt. Aparna Das is the unfortunate mother of the victim. She has stated that the accused persons started torturing her daughter on demand of cash of Rs.4,00,000/- but she did not state for what purpose the said amount was asked for. 22. PW-3, Smt. Tapashi Das is the paternal aunt of the victim. She has stated nothing why the said amount was demanded for. But she has stated that there was demand of Rs.4,00,000/-. Other witnesses did not state anything for what purpose the said money was demanded. 22. PW-3, Smt. Tapashi Das is the paternal aunt of the victim. She has stated nothing why the said amount was demanded for. But she has stated that there was demand of Rs.4,00,000/-. Other witnesses did not state anything for what purpose the said money was demanded. Thus, even though PW-1 intended to deviate from his own statement made in the ejahar (Exbt.1) but that content cannot be erased and hence, since the intention to have the money for purpose of business, this cannot be held to be dowry which is a fairly well-known social custom and now it is well defined by the Dowry Prohibition Act, 1961. In Appasaheb vs. State of Maharashtra, it has been categorically enunciated that ‘a demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry’ as the world is normally understood. It has been admitted by PW-1 the appellant No.2 had been in the business and he was running the business from his tong shop situated nearby his house. For purpose of business if the money was so demanded it cannot be brought within the meaning of dowry. Where there is any proof that soon before her death the victim faced harassment in the hand of the appellants. The episode of telephone call as relied by the trial court has frittered for divergence from the testimonies of the related witnesses. PW- 1 has stated in the ejahar that on 06.02.2012 at about 11 O’clock at night, the victim informed him about the cruel/ruthless torture inflicted upon her by the appellant No.2 and at that time the appellant No.2 snatched that mobile from her hand and asked him to come their house. But in the cross-examination, PW-1 has given a complete different version which reads as under: “On 06.02.2012 I invited both my daughter and Krishna Kanta at my house but she did not come. Then at night I telephoned them. In the night I made repeated attempt through my mobile to contact with her. But failed. But in the cross-examination, PW-1 has given a complete different version which reads as under: “On 06.02.2012 I invited both my daughter and Krishna Kanta at my house but she did not come. Then at night I telephoned them. In the night I made repeated attempt through my mobile to contact with her. But failed. Then with the mobile of my sister Tapashi Das I managed to make contact with her and she was at that time expressing severe torture on her person and then Krishna Kanta had forcefully snatched away that mobile and I heard the sound of Krishna Kanta of taking away of that mobile.” 23. Tapashi Das (PW-3) has stated about this episode as under: “On the previous day, i.e., on 06.02.2012 Sonai and her husband were invited in our house but they did not come and at night my brother several times tried to make contact with her but failed. Then I made contact with my mobile No.9436553377. Sonai responded. I inquired why she did not come. She was weeping and insisted me to hand over the phone to her mother. Accordingly, I handed over my phone to her mother. Thereafter she talked with her mother. Subsequently I came to know from her mother about the communication wherein Sonai informed that she was being tortured by her matrimonial relatives on the demand of money. I cannot say in which number I telephoned because in my telephone the number of that mobile was saved as Sonai.” PW-1 in his cross-examination has disclosed that on 06.02.2012, the victim was invited in his house but she did not come and that was the background why he had talked to the victim at night. PW-2, Smt. Aparna Das did not support the statement of torture on 06.02.2012. She has stated that: “On 06.02.2012 I invited my daughter along with her husband in our house but they did not attend. But in the night we telephoned her through mobile but she did not respond. Thereafter with the aid of mobile of my sister in law Tapasi Das we were able to make contact with her and during that time she only made communication to me that I should ask her father to arrange Rs.2,00,000/- and thereafter her husband had taken the mobile set from her hand. Thereafter with the aid of mobile of my sister in law Tapasi Das we were able to make contact with her and during that time she only made communication to me that I should ask her father to arrange Rs.2,00,000/- and thereafter her husband had taken the mobile set from her hand. Thereafter we failed to make any contact with her.” In the cross-examination, she has further stated that she cannot recollect whether she stated to the police on 06.02.2012 she had talked to her daughter over telephone. When her attention was drawn to the previous statement recorded under Section 161 of the Cr.P.C. no such statement could be found out by her. 24. On cumulative assessment of this episode which has been relied by the prosecution to prove harassment soon before death of the victim, it has to be held that the prosecution has failed in their attempt to prove harassment soon before her death on demand of dowry or otherwise. Whether the statement of the victim relating to infliction of the cruelty on unlawful demand is admissible in the evidence in view of provision of Section 32(1) of the Evidence Act? 25. PWs-1 has stated in the trial that on numerous occasions, the victim came and stated that the accused persons used to torture her on unlawful demand. Even on 04.02.2011 he narrated such story. Prior to that on 02.02.2012 the victim expressed her apprehension that if the demand was not fulfilled she might be killed. However, PW-1 has made the following statement in the trial: I saw injury on her chin and also at her hands. I found her room was not in order. The bed stand of cot was found removed and my daughter complained that his daughter was tortured with that stand. I also then inquired to Krishna Kanta. He was found in furious mood and he demanded transfer of my shop building at Subhash Park at his name. Then I asked my daughter to come with me but Krishna Kanta prevented her with a threatening that in that he would commit suicide or left to Bangladesh. Then my daughter did not come with me. It is apparent that the said episode has not been disclosed in the written ejahar. Then I asked my daughter to come with me but Krishna Kanta prevented her with a threatening that in that he would commit suicide or left to Bangladesh. Then my daughter did not come with me. It is apparent that the said episode has not been disclosed in the written ejahar. Even in the cross-examination, when PW-1 was confronted whether he made the said statement as above to the police, he admitted that there was no such statement. Even he did not assert that the police did not record his statement properly. 26. PW-2 did not state anything that her daughter, the victim ever stated to her about any torture in her matrimonial home by the appellants or other inmates. PW-3 has stated that once she found ‘mark of slap on her chin’ and the victim complained that she was tortured by her husband on demand of Rs.4,00,000/-. In view of the law decided by the apex court in Inderpal vs. State of Madhya Pradesh, those statements made allegedly by the victim cannot be excepted under Section 32(1) of the Indian Evidence Act and those are inadmissible. However, the evidence relating to noticing mark of injury on the chin of the victim is definitely admissible, but in isolation those do not establish any ingredients of the offences as alleged. Whether the circumstances on which the conviction has been returned has formed the circumstances complete to exclude the hypothesis of the innocence of the appellants? 27. The only circumstance that has been sought to appear probable is payment of a sum of Rs.2,00,000/- to the appellant No.1 by PW-1 allegedly on demand of the accused persons. But such payment has been claimed to have been made in presence of Shyamal Singha Chowdhury (PW-4) in the ejahar and even in the trial by stating that on 24.09.2011 he took loan of Rs.2,00,000/- from one Tapan Datta, a shop owner and on 28.09.2011 PW-1 visited the house of the accused persons with his friend, Shyamal Singha Chowdhury and handed over Rs.2,00,000/- to the appellant No.1 in presence of other accused persons. PW-1 requested the accused persons not to disturb her daughter any more. PW-4 and Tapan Datta (PW-12) did not support the said statement of PW-1 on material point. PW-4 flatly denied to have accompanied PW-1 on that day but he has admitted that PW-1 after making payment informed him. PW-1 requested the accused persons not to disturb her daughter any more. PW-4 and Tapan Datta (PW-12) did not support the said statement of PW-1 on material point. PW-4 flatly denied to have accompanied PW-1 on that day but he has admitted that PW-1 after making payment informed him. PW-12 denied to give the entire amount of Rs.2,00,000/- as claimed by PW-1. He has stated that he gave some part of the amount and there had been consideration in respect of a shop building. Therefore, the statement of PW-1 that he took loan from PW-12 has not been established, but it has been established that he received a sum of Rs.2,00,000/- from PW-12 to some extent. But PW-12 did not shed any light on the purpose of making the said payment. Rather PW-1 suppressed the alleged purpose. Some contradictions have brought out. Even without taking notice of that contradiction, it can safely be held that even the payment of the money cannot be held proved beyond reasonable doubt, as PW-4 has struck at the root of the said circumstance. Whether the evidence so recorded has been appreciated having regard to the discrepancies and contradictions in the backdrop that those statements were made by closely related person of the victim? 28. Even the testimonies of PWs 4 and 12 are not very material except those evidentiary materials as referred above. Sri Rahul Bhattacharji (PW-5), Sri Manik Ash (PW-6), Brajendra Sarkar (PW-8), Hirendra Chandra Das (PW-9), Smt. Mahila Biswas (PW-10), Sri Sarajit Sukla Das (PW-11) and Sukumar Sutradhar (PW-14) were declared hostile as they did not support their previous statement or the prosecution’s case. They were crossexamined but from their testimonies no admissible evidence can be gathered for purpose of returning the finding of the conviction. The trial court has correctly discarded their testimonies from consideration. 29. PW-7, Sri Ganesh Bhattacharji and PW-13, Sri Bulbul Chakraborty, who lived in the neighbourhood did not reveal anything. 30. PW-15, Sri Manik Chandra Pal has stated that PW-1 took a loan of Rs.50,000/- from him for some purpose but he did not disclose the purpose. But later on, he came to know from Shyamal Singha Chowdhruy (PW-4) that PW-1 required that money for giving some articles to his married daughter. 31. 30. PW-15, Sri Manik Chandra Pal has stated that PW-1 took a loan of Rs.50,000/- from him for some purpose but he did not disclose the purpose. But later on, he came to know from Shyamal Singha Chowdhruy (PW-4) that PW-1 required that money for giving some articles to his married daughter. 31. PW-16, Sri Soumendra Mitra scribed the ejahar and he has stated in the trial that he had scribed the ejahar as per the dictation of PW-1. 32. PW-17, Sri Khokan Chakraborty is a seizure witness of the parts of wearing apparels of the victim and one blanket, Exbt.M.O.1 series. But he has asserted that over telephone Rahul Bhattacharji had informed him that Aiswyra Das, the victim set fire on her person. When he appeared in the place of occurrence, he saw some persons assaulting the appellants. 33. PW-18, Sri Dibyendu Roy investigated the case for substantial part and gave a brief details of his investigation, how he seized the material objects, prepared the hand sketch map with index and recorded the statement of the witnesses. He has confirmed that Rahul Bhattacharji (PW-5) stated to him that the accused persons used to torture the victim. The said part of the statement has been identified by PW-18. Even he has identified the statement of Brajendra Sarkar (PW-7) where he stated to him on every day he used to hear quarrels from the house of the appellant No.1. Both Rahul Bhattacharji and Brajendra Sarkar turned hostile. 34. PW-19, Sri Jyotishman Das took the latter part of the investigation from PW-18 and he completed the remaining part of the investigation and submitted the charge sheet against all the accused persons named in the written ejahar under Sections 498-A and 304B of the I.P.C. 35. PW-20, Dr. Dipankar Prakash Bhowmik has identified the postmortem examination report (Exbt.16). 36. A serious suspicion has popped up from the postmortem report. According to the report from the time of conducting postmortem examination the incident took place before 12-16 hours meaning the incident occurred at midnight. But this opinion evidence cannot be utilized for any purpose as no other witness has given any hint about the occurrence at the projected time. 37. A serious suspicion has popped up from the postmortem report. According to the report from the time of conducting postmortem examination the incident took place before 12-16 hours meaning the incident occurred at midnight. But this opinion evidence cannot be utilized for any purpose as no other witness has given any hint about the occurrence at the projected time. 37. Having regard to Hardeep vs. State of Haryana, this Court is of the view of that every contradiction or discrepancy may not necessarily be fatal to the prosecution case but it depends on the facts and circumstances of the case, such discrepancy in contradiction has to be seen in the background of probabilities of prosecution story and veracity of the prosecution witnesses. In case, the evidence of prosecution witnesses is above board and unimpeachable and inspires confidence in that event discrepancies and contradiction here and there may have no value at all. The veracity test of the statements made by PWs-1, 2 & 3, on which the whole prosecution case hinges, does not inspire confidence to believe that the prosecution story must be true rather, reassessment of the entire prosecution evidence has persuaded us to the inference that the prosecution case has not been proved beyond reasonable doubt, even if there exits elements of strong suspicion. Having held so, the finding arrived by the trial court cannot be sustained. Whether there is evidence of cruelty within the explanation provided below Section 498-A of the I.P.C.? 38. In Giridhar Shankar Tawade vs. State of Maharashtra, reported in (2002) 5 SCC 177 , the cruelty within the ambit of Section 498-A of the I.P.C. has been appreciated in the following term having regard to the statutory provision engrafted in Section 498-A of the I.P.C. 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. 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). 39. From the discussion made above, it becomes eminently clear that the prosecution has failed to bring on records any act or either of the three attributes or specific situations as enunciated in Giridhar Sankar Tawade vs. State of Maharashtra. 40. In view of what has been observed above, we are of the considered opinion that the appellants are entitled to the benefit of doubt which visited the whole array of evidence. Hence, the impugned judgment and order are set aside and the appellants are acquitted from the charge on benefit of doubt. They shall be released forthwith if they are not wanted in other case. In the result, the appeal stands allowed. Send down the LCRs forthwith.