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2015 DIGILAW 531 (TRI)

Amar Chakraborty v. State of Tripura

2015-07-15

S.TALAPATRA, U.B.SAHA

body2015
JUDGMENT S. Talapatra, J. 1. Heard Mr. Ratan Dutta, learned counsel with Mr. P Dutta, learned counsel appearing for the appellants as well as Mr. A Ghosh, learned PP appearing for the State. 2. This is an appeal under Section 374(2) CrPC questioning the legality of the judgment dated 16.09.2011 delivered in ST 10 (ST/B) of 2011. By the said judgment dated 16.09.2011, the appellants have been convicted under Section 304 B and under Section 498 A of the Indian Penal Code. In terms of the said judgment all the appellants have been sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs. 5,000/- each, in default to suffer rigorous imprisonment for a further period of three months each for the offence punishable under Section 498 A IPC. The appellant, namely, Amar Chakraborty has been sentenced to suffer rigorous imprisonment for 10 years whereas the other two appellants, namely, Smt. Jyoti Rani Chakraborty and Sri Balai Chakraborty have been sentenced to suffer rigorous imprisonment for 7 years for committing offence under Section 304 B IPC. The substantive sentence of imprisonments has been directed to run concurrently. 3. The genesis of the prosecution is rooted in the complaint filed by Smt. Arati Chakraborty, PW 1 on 22.10.2009 disclosing that her daughter, namely, Shima Chakraborty was given marriage to the appellant No.1, Sri Amar Chakraborty on 04.02.2009. Immediately after their marriage, the appellants and another Kartik Chakraborty, against whom the charge was framed but was acquitted by the impugned judgment, started mentally and physically torturing her daughter on demand of dowry and for the unmet dowry. When her daughter visited their house she had vividly narrated how she was tortured for realizing their unlawful demand. She had informed that incident to one Chandan Chakraborty, who resides in the neighbourhood of the appellants’ house and also to the Pradhan (the village-head) of that village. 4. On 21.10.2009 at about 9 O’clock at night, the appellants and the said accused person assaulted her daughter and thereafter at about 11 O’Clock on the same night the accused persons set her daughter ablaze by pouring kerosene on her body and when her daughter got severe burn injuries she was transported to Jolaibari Primary Health Centre and from there, she was transported to Udaipur District Hospital. From there she was taken to the GBP Hospital at Agartala. From there she was taken to the GBP Hospital at Agartala. On the following day, i.e. on 22.09.2010 at about 4 a.m. in the morning her son went to the GBP Hospital and at 11 a.m. he had informed her that her daughter died in the GBP Hospital. 5. Having received the said written Ejahar from PW 1, the Baikhora P.S. Case No. 84/2009 under Section 498 A and 304 B of the Indian Penal Code was registered and taken up for investigation. On completion of investigation, the final police report chargesheeting the appellants and the said accused person was filed in the court of the Jurisdictional Magistrate who after taking cognizance committed the police papers to the court to the Addl. Sessions Judge, South Tripura, Belonia for trial in accordance with law. 6. The Addl. Sessions Judge, South Tripura, Belonia (hereinafter referred to as the “trial Judge”) framed the charge against the appellants and the said accused person under Section 304 B and Section 498 A IPC to which all the appellants and the said accused persons pleaded total innocence and claimed to face trial. 7. In order to substantiate the charge, the prosecution adduced as many as 13 witnesses including the informant, PW1, Smt. Arati Chakraborty, her son PW 7, Sri Tapas Chakraborty and her daughter, PW 8, Smt. Ruma Chakraborty, and the Medical Officer, PW 10, Dr. Pranab Choudhury who conducted the autopsy on the body of the deceased and the Investigation Officer (IO) of the case, PW 11, SI Alamgir Hossen. That apart, the prosecution introduced in the evidence few documentary evidence, Exhibit-1 to Exhibit-7, including the inquest report and the post mortem examination report. 8. From the defence no witness has been adduced but at their instance, some documentary evidence such as Exhibit A, B and C have been admitted in the evidence. 9. After appreciation of the evidence, by the impugned judgment, the appellants have been convicted and as stated, the other accused person has been acquitted from the charges. 10. Mr. Ratan Dutta, learned counsel for the appellant has emphatically submitted that the essential ingredients of Section 304 B IPC are totally absent in the evidence. According to Mr. Dutta, there is no legal evidence that soon before her death, the deceased was harassed on the demand of dowry in any manner or she was meted with cruelty. Mr. 10. Mr. Ratan Dutta, learned counsel for the appellant has emphatically submitted that the essential ingredients of Section 304 B IPC are totally absent in the evidence. According to Mr. Dutta, there is no legal evidence that soon before her death, the deceased was harassed on the demand of dowry in any manner or she was meted with cruelty. Mr. Dutta, learned counsel has submitted that there is no evidence in respect of demand of dowry inasmuch as the communication made by the deceased cannot be admitted in evidence in view of the exemption under Section 32(1) of the Indian Evidence Act. Hence, he has persuaded to reverse the judgment of conviction and acquit the appellants from the charge framed against them. 11. From the other side, Mr. Ghosh, learned PP has, while rebutting the said submission of Mr. Dutta stated that there is substantive evidence of cruelty within the meaning as explained under Section 498 A IPC against the appellant No. 1 as it would be apparent from the oral testimonies of PWs 7 & 8 that in their presence the appellant No. 1 had physically assaulted the deceased on unlawful demand. However, he has fairly acceded that there is no legal evidence as to the harassment on demand of dowry or the cruelty soon before the death of Shima. Within this short compass, this Court would make a very short survey of the evidence on record. 12. PW 1, Smt. Arati Chakraborty has supported her allegation made in the Ejahar (Exhibits 5 & 1) but she has introduced a new episode that in her presence even on a trifling ground her daughter was humiliated. She has also stated that, time and again Shima, her daughter informed her and other family members that the appellant Nos. 2 & 3 along with the other accused person, namely, Kartik Chakraborty had demanded dowry. For realization, Shima was subjected to the harassment. She has stated that there had been specific demand for Rs. 5,000/- and some articles. On 22.10.2009 at about 11.00 a.m. she got the information from her niece Pritikana Chakraborty, (PW 2), that Shima had expired in the hospital. She has introduced the written Ejahar as Exhibit 1 in the evidence. 13. For realization, Shima was subjected to the harassment. She has stated that there had been specific demand for Rs. 5,000/- and some articles. On 22.10.2009 at about 11.00 a.m. she got the information from her niece Pritikana Chakraborty, (PW 2), that Shima had expired in the hospital. She has introduced the written Ejahar as Exhibit 1 in the evidence. 13. In her cross-examination she has admitted that “I did not mention in my complaint that in the month of Bhadra one day I went to the house of the accused persons and in my presence they abused Shima”. She has further stated that she did not also mention in the complaint that in the IGM hospital she met with Shima about 6/7 days before her death when she informed her about the torture on her. She has further admitted that in the complaint she did not mention that she learnt about death of her daughter from Pritikana Chakraborty. 14. What appears from her statement in the trial and is pertinent is that Amar also sustained burn injuries on the same night and he was also hospitalized. The dead body of Shima was taken to her husband’s house and the last rites were performed by them. At the time of cremation of the dead body of Shima, Amar was admitted in the GB Hospital. Before the death of Shima, she did not lodge any complaint about the torture on her at the police station and Shima also did not make any such complaint to the police. She has, however, denied the suggestions made to her stoutly. 15. PW 2, Smt. Pritikana Chakraborty, has submitted that Shima informed her that her husband, mother in law, brother in law, who are the appellants herein, used to torture and assault her on the ground that the articles given in the marriage were not of “top quality”. She was also tortured for the balance amount of Rs.5,000/- but she has stated that Kartik Chakraborty did not assault her. This witness has further stated that on 22.10.2009 she first heard of Shima’s getting burn injuries and she had rushed to the Udaipur Hospital but she came to learn there that Shima was shifted to GB Hospital and she had expired. She had returned to Jolaibari with PW 1. She scribed the ejahar in terms of the dictation made by PW 1. 16. She had returned to Jolaibari with PW 1. She scribed the ejahar in terms of the dictation made by PW 1. 16. In her cross-examination she has stated that one lady namely, Bulti, wife of Kartik Chakraborty is her cousin. She has also admitted that she learnt that Amar, the Appellant No. 1 and others shifted Shima to the hospital. Amar, the Appellant No. 1 had also sustained burn injuries on the same night and he was admitted in the hospital. 17. PW 3, Sri Chandan Chakraborty did not support the prosecution case and as a consequence, he was declared hostile. 18. PW 4, Sri Sujit Baidya, PW 5, Sri Debendra Biswas and PW 6, Sri Sribash Malakar are the witnesses who have either not revealed anything of material importance or were not examined by the prosecution. However, PW 6 has claimed that when Shima was brought to Jolaibari Primary Health Centre, he was present there. 19. PW 7, Sri Tapash Chakraborty, brother of the deceased has stated that Shima was his elder sister and she was married to the appellant No. 1. At the time of her marriage, they gave articles and cash amount of Rs.10,000/-. There was a demand of Rs.15,000/-. A sum of Rs.5,000/- remained unpaid. They sought one year for making payment of the remainder but after ten days from the marriage of Shima, harassment by the appellants on demand of the remainder of the dowry started. He has categorically stated “Shima visited our house with her husband for the last time in the month of Bhadra and on that occasion in my presence, Amar Chakraborty assaulted her on the demand of payment of the amount of Rs.5,000/-. About 6/7 days before the death of Shima, I met her at IGM Hospital where we assembled regarding delivery of my elder sister Soma Chakraborty, that time also Shima informed me that she was being assaulted and tortured by Amar, Balai & Jyoti Chakraborty on the demand of money. On 21.10.2009 around 9 p.m. Shima talked to my younger sister Ruma Chakraborty over mobile phone. She wanted to talk with my mother, but the line was disconnected. I tried to contact her thereafter, but failed. Around 2 a.m. that night Balai Chakraborty informed me over telephone that Shima had set fire on herself & that she was hospitalized at TS Hospital, Udaipur. She wanted to talk with my mother, but the line was disconnected. I tried to contact her thereafter, but failed. Around 2 a.m. that night Balai Chakraborty informed me over telephone that Shima had set fire on herself & that she was hospitalized at TS Hospital, Udaipur. On the following morning on my way to TS Hospital, Udaipur, at Peratia I received call from Balai informing that Shima was shifted to the GBP Hospital, Agartala. Accordingly, I along with my cousin Chayan Chakraborty reached there around 10.30 a.m. and found her dead.” He was also the witness to the inquest procedure. 20. In the cross-examination he has stated that Bulti Chakraborty, the cousin of PW 2 was the negotiator of the marriage. But he has strangely stated that she is not related to him. He has stated that in his presence Shima was assaulted in their house by the appellant No. 1. Having confronted by the defence, PW 7 did not accept that that statement was improved or false. 21. PW 8, Smt. Ruma Chakraborty is the younger sister of the deceased. She has narrated about the marriage and the demand of the balance amount and also about torture by the appellants on the victim in her matrimonial home. Thereafter, she has stated that during Shima’s last visit Amar Chakraborty, the appellant No. 1 herein, assaulted her on demand of money in her presence at their house. She has further stated that “On the night of incident around 9 p.m. Shima called me in the mobile and informed that she was being assaulted by her husband, Balai & Jyoti Chakraborty for the amount of Rs.5,000/-. She requested for immediate payment of the money. I informed her that in the morning we would go to her house. On that night around 2 a.m. her brother in law informed my brother Tapash that Shima had sustained burn injury. She died on the following morning.” 22. In the cross-examination, when she was confronted, she admitted that there was no such statement in her previous statements recorded by the Investigating Officer that Shima had informed her over phone about the demand and torture. She has also asserted that there was a telephone call from the deceased. However, she has denied the suggestions in contrast. 23. PW 9, Sri Bhola Ch. Nath is a close neighbour and he did not reveal anything of material importance. She has also asserted that there was a telephone call from the deceased. However, she has denied the suggestions in contrast. 23. PW 9, Sri Bhola Ch. Nath is a close neighbour and he did not reveal anything of material importance. 24. PW 10, Dr. Pranab Choudhury, who conducted the post mortem examination along with Dr. Partha Debbarma, stated that the body was having 99% burn injuries and the injuries were fresh. The cause of death was due to shock as a result of burn injuries caused by the flame. He has introduced in evidence the post mortem examination report as Exhibit 4. There was no cross-examination against such information and opinion as expressed by PW 10. 25. PW 11, Alamgir Hossen, was an SI in the Baikhora Police Station. He had received the written complaint. Initially he was in charge of the investigation. He recorded the statement of the informant and one witness and visited the place of occurrence at Bagantilla, North Jolaibari where the house of the accused persons is situated and prepared the hand-sketch map with separate index. He had seized a bottle having smell of kerosene and the match box with sticks, 4 nos. of small candles and some burnt clothes with ashes on preparing the seizure list (Exhibit 7). He had also recorded the statement of two witnesses on the place of occurrence. 26. PW 12, Sri Amitabha Pal, SDPO had taken up the investigation for the remaining part and on completion of the investigation he had submitted the final police report against the appellants and the other accused person. He has also introduced the medical examination report as Exhibit B at the instance of the defence. 27. PW 13, Sri Arunadaya Das, is an SI of Police who was posted at that time at GB, TOP. On request, he asked the hospital authority for arrangement of the post mortem examination of Shima Chakraborty, wife of the Appellant No. 1. 28. Having appreciated the evidence as well as the submission made by the learned counsel for the parties, it emerges that there are two sets of evidence. One is a direct and the other by communication. But there is no evidence which can be termed as conclusive to satisfy the standard of proof, i.e. beyond reasonable doubt that Shima was harassed on demand of dowry soon before her death. One is a direct and the other by communication. But there is no evidence which can be termed as conclusive to satisfy the standard of proof, i.e. beyond reasonable doubt that Shima was harassed on demand of dowry soon before her death. Even though PWs 7 & 8 have made some projections to prove that Shima was tortured and she tried to contact her family but their statements are not simply trustworthy as the testimonies of Tapash Chakraborty, PW 7 and the testimonies of Ruma Chakraborty, PW 8 are so incongruent in the context that a prudent person cannot believe those statements even as probable. 29. Apart these witnesses, none has stated or no other evidence has been placed on the record to show that there had been harassment for demand of dowry soon before her death. As such we are of the view that the conviction as returned under Section 304 B IPC against the appellants are entirely unsustainable and as such the appellants are acquitted of the charge under Section 304 B IPC on benefit of doubt. 30. So far as the evidence of cruelty under Section 498 A is concerned, this Court finds that the prosecution case is substantially based on the communications made by Shima and those are against the appellant Nos. 2 and 3. In view of the law laid down by the Apex Court in Inderpal Vs. State of M.P., 2002 (2) Cr LJ 926, these communications made by the deceased to the witnesses such as PW 1, PW 2, PW 7 and PW 8 cannot be admitted. Those statements cannot be held to be related to the death or made in the transaction of death. These communications were made much before the death and having no relation with the death or even in anticipation of death. Hence, those communications cannot be exempted under Section 32(1) of the Indian Evidence Act. However, PWs 7 and 8 have unwaveringly stated that in their presence the appellant No. 1 had physically assaulted Shima on her last visit at their house on demand of dowry. 31. In Inderpal Vs. State of M.P., it has been held as under: “7. Unless the statement of a dead person would fall within the purview of Section 32(1) of the Indian Evidence Act there is no other provision under which the same can be admitted in evidence. 31. In Inderpal Vs. State of M.P., it has been held as under: “7. Unless the statement of a dead person would fall within the purview of Section 32(1) of the Indian 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 P7 or Exhibit P8 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 498A, Indian Penal Code disjuncted from the offence under 306, Indian Penal Code 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.” 31. As such this court is of the considered opinion that the charge under Section 498 A of the IPC against the appellant No. 2, Smt. Jyoti Rani Chakraborty and the appellant No. 3, Sri Balai Chakrborty cannot as well be maintained and as such these appellants are acquitted from the charge under Section 498 A IPC on the benefit of doubt, but this Court is of the considered view that from the oral testimonies of PWs 7 and 8, the torture in continuum for demand of dowry has been established against the appellant No. 1. Such evidence cannot be discarded by this Court, even though in the Ejahar filed by PW 1 there is no mention of these occurrences. It is not expected that immediately after the death of one daughter, all the materials would be made in the form of compendium in a written ejahar and as such we do not find any ground to dis-believe the statement of Tapash Chakraborty and Ruma Chakraborty so far physical assault of the deceased in their presence on demand of payment of remainder amount, i.e. Rs.5,000/- is concerned. As such we sustain the conviction as returned against the appellant No. 1 under Section 498 A IPC. As such we sustain the conviction as returned against the appellant No. 1 under Section 498 A IPC. 32. It is to be noted that the appellant No. 1 has already suffered the maximum period of sentence as can be given by the court for commission of offence under Section 498 A IPC. Having regard to that aspect, the appellant No. 1 is entitled to be released forthwith as he has suffered the entire sentence which he is supposed to suffer for commission of offence under Section 498 A IPC. Hence, the appellant No. 1 shall be released forthwith, if not wanted in any other case. 33. In view of the above, the appeal is partly allowed. Send down the LCRs forthwith.