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2015 DIGILAW 500 (GAU)

Raju Ghosh v. State of Assam

2015-04-29

RUMI KUMARI PHUKAN

body2015
JUDGMENT : Rumi Kumari Phukan, J. 1. I have heard Mr. G.N. Sahewalla, learned Senior counsel for the appellants and the learned Additional Public Prosecutor, Assam, for the respondent State of Assam. 2. The prosecution story, in a nutshell, is that Shri Manoranjan Ghosh, resident of Kokrajhar Town, lodged an F.I.R. before the O/C Goalpara, stating, inter-alia, that his daughter was married to appellant No. 1 on 17.03.2008 and, since after the marriage, they have been residing at their dwelling house at Goalpara. Out of wedlock, a child was born his daughter Mitali Ghosh ended her life due to suffering from frustration and depression as she was allegedly subjected to continuous and constant harassment for dowry articles after two months of the marriage. As he failed to meet his demand, the parents of the deceased, i.e. Mithali Ghosh tried to conciliate in this matter finally, on 21.09.09 at about 8 to 8.30 A.M., he received a call from his daughter, i.e., deceased Mitali Ghosh informing him that she is been kept starved for long 3 days. On getting the information, he had send his eldest son, Manoj Ghosh, to her matrimonial residence but as soon as the Manoj Ghosh, the brother came to the house of the appellants, he found the victim being badly burnt and she was lying on the floor of the house. Accordingly, the victim Mitali Ghosh was taken to Goalpara Civil Hospital. As her condition was critical, she was referred to the Guwahati Medical College and when she was taken to the Guwahati Medical College, at the door-step of the college she breathed her last. On the basis of the said information, Goalpara Police Station registered a case vide Goalpara P.S. Case No. 369/09 u/s. 304B/34 IPC against the appellants. On the basis of the FIR, the police started investigation and during the course of investigation, the Investigating Officer visited the place of occurrence, examined the material witnesses and thereafter, the appellant No. 1 was arrested and was sent to the judicial custody on being produced before the learned Court below. The Investigating Officer, on completion of the investigation, having found sufficient material, showing prima facie involvement of the appellants, submitted charge-sheet with allegation of committing offences under section 306/34 IPC against them. Upon receipt of the charge-sheet, the learned Court below issued process and accordingly all the appellants appeared. The Investigating Officer, on completion of the investigation, having found sufficient material, showing prima facie involvement of the appellants, submitted charge-sheet with allegation of committing offences under section 306/34 IPC against them. Upon receipt of the charge-sheet, the learned Court below issued process and accordingly all the appellants appeared. On their appearance, the copies of the statements of the witnesses and relevant documents were furnished as prescribed under section207 of IPC as the offence is exclusively triable by the Court of Session, the Learned Magistrate Committed the case to the court to Session for trial. The learned Sessions Judge, on receipt of the case record from the Court below, took cognizance u/ss.306/34 IPC and thereafter, upon hearing the counsel for both the parties and on perusal of material on records, framed formal charge u/ss. 304/34 IPC against the appellants. The charges were explained and read-over to the appellants to which the appellants pleaded not guilty and claimed to be tried. To bring home charges of 304B/34 IPC, the prosecution has examined as many as 12witnesses including the investigating officer whereas the defence adduced none. The defence plea recorded u/s. 313Cr.P.C. of total denial and false implication. On conclusion of trial, the Learned trial court on appreciation of evidence vide judgment and order dated 23.09.2013 found the appellants guilty of offence U/s. 304B/34 of IPC and accordingly, the appellant No. 1 being the husband of the deceased was sentenced to suffer R.I. for 10 years and appellant No. 2 and 3 being the parents of appellant No. 1 were sentences to suffer R.I. for 7 years. Being aggrieved with the aforesaid judgment and order, present appeal has been preferred. 3. Learned counsel for the appellants has submitted that PW-1 is the father of victim, PW-2 is the brother of the victim, PW-3 is the relative of the informant whereas PW-4, 5, 6, 7, 8, 9 and 10 are neighbours of the appellants. PW-11 is the Investigating Officer and PW-12 is the Doctor who performed the post-mortem of the deceased body. Except the 3 witnesses i.e. PW-1, 2, 3, who are the relative of the deceased, no other witnesses stated in their deposition that they ever heard or seen any torture meted on the deceased by the appellants. They have also stated that the appellant No. 1 and the deceased, being the husband and wife, maintained a very cordial relation between themselves. They have also stated that the appellant No. 1 and the deceased, being the husband and wife, maintained a very cordial relation between themselves. Moreover, the evidence of PW-1, 2 and 3 are absolutely contradictory to each other inasmuch as in their cross-examination, they have stated that they did not get any demand relating to dowry and also the deceased i.e. their daughter also did not give any complaint regarding any torture or cruelty meted upon her. The learned trial Judge without appreciation of evidence in its proper perspective arrived in a final conclusion holding the guilty of the appellants u/ss. 304B/34 IPC and as such, the impugned judgment is liable to be interfered with. From the entire evidence available on record, there is not an iota of evidence implicating the appellants No. 2 and 3 in committing the offence but the learned trial Court without considering the material and evidence available on records, most arbitrarily convicted the appellants u/ss. 304B/34 IPC and as such, the impugned judgment is liable to be set aside and quashed. 4. Learned counsel for the appellants referring to the provisions of Section 304B IPC, has argued that a bare perusal of the provision of the said section clearly reveals that soon before death of victim, there must have been a demand of dowry or she must have been subject to cruelty but the evidences brought forward by the prosecution side, could not prove that soon before her death, she was subjected to cruelty in demanding the dowry. But the learned trial Court without going through the provisions laid down in 304B IPC, most arbitrarily, convicted the appellants for the offence u/s. 304B IPC and as such, the impugned judgment is not maintainable as there is no convincing evidence as regards dowry demand or even cruelty. 5. But the learned trial Court without going through the provisions laid down in 304B IPC, most arbitrarily, convicted the appellants for the offence u/s. 304B IPC and as such, the impugned judgment is not maintainable as there is no convincing evidence as regards dowry demand or even cruelty. 5. The learned counsel for the appellant has relied upon the case laws reported in (2012) 11 SCC 397 (Mustafa Shahadal Shaikh, wherein it has been held as below - "In order to convict an accused for the offence punishable under Section 304-B IPC, the following essentials must be satisfied: (i) The death of a 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 or 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 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 the prosecution witnesses or by adducing evidence on the defence side." It has been further held in the said judgment in para-11 as follows:- "11. To attract the provisions of Section 304-B, one of the main ingredients of the offence which is required to be established is that "soon before her death" she was subjected to cruelty or harassment "for, or in connection with the demand for dowry". The expression "soon before her death" used in Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. In fact, the learned counsel appearing for the appellant submitted that there is no proximity for the alleged demand of dowry and harassment. The expression "soon before her death" used in Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. In fact, the learned counsel appearing for the appellant submitted that there is no proximity for the alleged demand of dowry and harassment. With regard to the said claim, we shall advert to the same while considering the evidence led in by the prosecution. Though the 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. Accordingly, the determination of the period which can come within the term "soon before her death" is to be determined by the courts, depending upon the facts and circumstances of each case. However, the said expression would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. In other words, there must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. 6. It has been argued that the learned Court below has failed to appreciate that there was no evidence on record to show that the victim was subjected to cruelty soon before her death. A mere vague statement about demand of dowry is an omnibus statement highly insufficient to prove the case under Section 304B as well as to draw the presumption under Section 113 of the Indian Penal Code. 7. On the other hand, the learned counsel for the State has vehemently argued that evidence of relative of the victim has clearly mentioned about the demand of dowry on the part of the appellants and the victim died out of burn injury within two years of marriage. So the offence under Section 304B is established in the present case. 8. On the other hand, the learned counsel for the State has vehemently argued that evidence of relative of the victim has clearly mentioned about the demand of dowry on the part of the appellants and the victim died out of burn injury within two years of marriage. So the offence under Section 304B is established in the present case. 8. Section 304B IPC relates to dowry death and it 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. In order to prove the offence, the essential ingredients are as follows:- 1) The death of the woman should be caused by burn or bodily injury or otherwise than under normal circumstances; 2) Such death should have occurred within seven years of her marriage; 3) She must have been subjected to cruelty or harassment by her husband or any other relative of her husband; 4) Such cruelty or harassment should be for or in connection with demand of dowry. 5) Such cruelty or harassment is shown to have been meted to the woman soon before her death. 9. Further Section 113B of the evidence Act is also relevant for consideration, which reads as follows:- Section 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, or in connection, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation-For the purpose of this Section 'dowry death' shall have the same meaning as in Section 304B of the Indian Penal Code. 10. Explanation-For the purpose of this Section 'dowry death' shall have the same meaning as in Section 304B of the Indian Penal Code. 10. As per the definition of dowry death under Section 304B IPC and the wording in the presumptive Section 113B of the Evidence Act, one of the most essential ingredients in both the provisions is that concern woman must have been 'soon before her death' subjected to cruelty or harassment or for or in connection with demand of dowry. On proof of essentials mentioned above, it becomes obligatory on the part of the Court to lay a presumption that the accused has caused the dowry death. In the case law, the Hon'ble Supreme Court in (2013) 14 SCC 678 reported Indrajit Suresh Prasad Bin and others Vs. State of Gujarat and (2014) 4 SCC 172 reported in Asha and Anr. Vs. State of Uttrakhand, it has been categorically held as follows: "Mere demand of dowry without proof of cruelty or harassment caused to the deceased by appellant cannot make the appellant liable for offence under section 304B, 498A or 306 IPC." 11. To establish the offence of dowry death, the prosecution has to prove beyond reasonable doubt that the husband or his relative has subjected the victim to cruelty or harassment in connection with demand of dowry soon before her death. Similarly, to establish the offence under Section 498A IPC, the prosecution has to prove beyond reasonable doubt that the husband or his relative has subjected the victim to cruelty as defined in Clause (a) and (b) of the Explanation to Section 498A. The Hon'ble Apex Court in Asha and another (supra), it has been held that charges of cruelty or harassment against the accused are not supported by legal evidence on record and has set aside the order of conviction accordingly. 12. In another case reported in (2014) 9 SCC 645 , Monoharlal Vs. State of Haryana, by resorting similar view has set aside the conviction under Section 304B/498A IPC on the ground that ingredients of the offence of cruelty soon before her death is not made out. 13. Having regard to the legal provisions and also the ingredients of the offence mentioned above, let us appreciate the evidence on record. State of Haryana, by resorting similar view has set aside the conviction under Section 304B/498A IPC on the ground that ingredients of the offence of cruelty soon before her death is not made out. 13. Having regard to the legal provisions and also the ingredients of the offence mentioned above, let us appreciate the evidence on record. In the given case, as has been pointed out, apart from the father, one of the brother and one relative of the victim, no other supporting evidence as regard the conduct of the accused appellants to reveal the act of cruelty and harassment. From the set of the evidence of the independent witnesses i.e. P.Ws. 4 to 10, there is nothing to support the case of the informant about harassment etc. upon the victim. On the other hand, the evidence of the informant as well as other family members of the victim i.e. P.W. 1, 2 and 3, their statement is nothing but a vague allegation that 'torture' was meted upon the victim, but it is peculiar to note that none of the witnesses have divulged as to how the victim was treated by the appellants to show the blameworthy conduct. Neither the victim complained them about the way of torture, day and time etc. of torture, nor they asked about the same. There is absolutely no evidence on the part of her parents/relatives witnesses that what was the demand of the appellants and whether anything was given against such demand. The word they used in evidence that there was dispute/altercation between the parties after the marriage on the matter of dowry. But they failed to bring anything specific on record to bring the matter within the purview of cruelty. A household dispute/quarrel between a spouse even on the matter of dowry cannot be termed as cruelty. As has been held in the abovementioned case laws that mere demand of dowry itself is not a cruelty unless the victim is harassed for that purpose. In the given case, there is lack of evidence as regards conduct of accused towards the victim to indicate cruelty as per ingredients of Section 498A. As has been held in the abovementioned case laws that mere demand of dowry itself is not a cruelty unless the victim is harassed for that purpose. In the given case, there is lack of evidence as regards conduct of accused towards the victim to indicate cruelty as per ingredients of Section 498A. The only witness P.W. 3, who went to the house of the victim to enquire about the affairs between the parties has also stated about the fact that on the day of her arrival she heard the altercation between the victim and her in-laws is nothing more. The evidence on record is totally insufficient to prove the factum of cruelty on the part of the appellants. Cruelty to wife under Section 498A and dowry death- Section 304B and 498A are not mutually exclusive. This provision deals with two distinct offences. Cruelty is a common essential to both the sections and that has to be proved. 14. Pressing upon the above contention, the learned counsel for the appellants Mr. Sahewalla has made the following submissions: 1) That the trial court discarded the delay in filing the FIR; 2) The prosecution failed to prove that the accused harassed the deceased soon before the death or in connection with the demand of dowry. 3) There is lack of supporting evidence nor any other circumstances which may lead to the conclusion about the guilt of the accused appellants. 15. I have considered the rival contentions of both the parties. The evidence on record reveals that statements of the informant as well as the relatives of the victim are general and not at all specific, suggesting the cruelty or harassment made by the accused appellants. None of the witnesses including P.W. 1 could establish that deceased was harassed soon before her death in connection with demand of dowry. In this context the statement of the brother of the victim that he was called by the victim prior to the date of her death without disclosing any sort of torture is also an aspect which negates the allegation of torture. In this context the statement of the brother of the victim that he was called by the victim prior to the date of her death without disclosing any sort of torture is also an aspect which negates the allegation of torture. In view of the further evidence on record that the victim was found alone inside the kitchen at the time of incident and the appellant was in his shop and was called upon by the neighbours, all are suggestive of the fact that the victim herself burn her without being actuated by the accused appellants. More so, there is ample evidence on record that there was cordial relation between the accused and the victim and even the parents and brother of the victim also agreed that they always found the accused and the victim in good relation. 16. Certain other circumstances, as surfaced in evidence on record, needs consideration. The P.W. 4 is the first person who arrived at the house of the accused persons hearing hue and cry and she found the deceased running from kitchen in burning condition towards the drawing room and there was none inside the house. She took the child from the floor and neighbouring people arrived and they put off the fire and after informing the accused Raju, they took the victim to hospital along with Raju. The victim complain nobody for the incident. Similarly, delay in filing the FIR is also not explained satisfactorily which was filed after two days of occurrence, which is also vital. Further, the father of the victim told that victim telephoned him on the earlier day of the incident and he saw P.W. 2 on the next date but his son/P.W. told that he was telephoned on the very day of occurrence which is also contradictory. Moreover, at no point of time, victim complained of nature of torture, even prior to occurrence of burning. 17. In view of such evidence on record, it is highly insufficient to hold that the victim was subjected to cruelty soon before her death and in such eventuality, all the ingredients of Section 304B IPC are not proved beyond all reasonable doubt. 17. In view of such evidence on record, it is highly insufficient to hold that the victim was subjected to cruelty soon before her death and in such eventuality, all the ingredients of Section 304B IPC are not proved beyond all reasonable doubt. It transpires from the Lower Court judgment that Court was very much impressed by the word "torture" used by the parents/witnesses, but it failed to appreciate that in absence of legal evidence, as has been indicated above, the Court has no role to play on impulse on the pretext that a woman has died at early stage of her marriage. Being a Court of law, one must have concern and has to be guided by the provisions as set forth by the statute, not by sentiment or emotion etc. 18. As a corollary of the findings and discussion above, I tan be arrived at that the charge under Section 304B/34 IPC is not proved beyond all reasonable doubt and, as such, the accused appellants deserves acquittal on benefit of doubt. The impugned judgment and order of conviction dated 23.09.2013 passed in Sessions Case No. 09/2012 by the learned Sessions Judge, Goalpara is set aside. 19. Accordingly, all the accused appellants are acquitted from the charge and they be set at liberty forthwith. Return the LCR along with copy of the order.