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Tripura High Court · body

2015 DIGILAW 605 (TRI)

Janardhan Debnath v. State of Tripura

2015-07-30

S.C.DAS

body2015
JUDGMENT 1. Dowry is a serious social evil. An offence of dowry death is a most hated crime. The Legislature has made stringent laws to deal with the devilish acts of dowry by enacting the Dowry Prohibition Act, 1961 and incorporating in the Penal Code too, Section 498A and Section 304B as well as Section 113B in the Evidence Act. The menace of dowry still survives. What needs to be borne in mind is that howsoever serious a charge may be against an accused, the offence alleged to have been committed by him must be proved in accordance with law. The Court of law should not be swayed simply by the gravity of the offence but should consider the case as a whole and should not draw assumption and presumption based on his common sense putting apart the facts brought in evidence by the parties. No doubt, in cases of offence relating to woman the role of the Courts assumes significant importance. The Supreme Court in the case of Kundula Bala Subrahmanyam and Anr. v. State of Andhra Pradesh reported in (1993) 2 SCC 684 : 1993 Cri.LJ 1635 has held that the role of courts, under the circumstances assumes greater importance and it is expected that the courts would deal with such cases in a more realistic manner and not allow the criminals to escape on account of procedural technicalities or insignificant lacunae in the evidence as otherwise the criminals would receive encouragement and the victims of crime would be totally discouraged by the crime going unpunished. The courts are expected to be sensitive in cases involving crime against women. 2. Here is a case, the accused-appellant has been convicted for dowry death. The marriage of accused-appellant, Janardhan Debnath was solemnized with Sangita Debnath about four years before her death(death occurred on 10.10.2010). It is an undisputed rather an admitted fact that Sangita died an unnatural death on receipt of 96 percent burn injury all over her body. According to the prosecution, she was subjected to cruelty in the matrimonial home on demand of dowry. On the other hand the accused persons contended that the deceased was accidentally caught with fire and as a result she died. 3. Sri Parimal Debnath(PW2), father of deceased Sangita, set the law in motion by filing an FIR in writing before O/C Santirbazar P.S. on 11.10.2010 at about 20-30 hrs. On the other hand the accused persons contended that the deceased was accidentally caught with fire and as a result she died. 3. Sri Parimal Debnath(PW2), father of deceased Sangita, set the law in motion by filing an FIR in writing before O/C Santirbazar P.S. on 11.10.2010 at about 20-30 hrs. alleging that marriage of Sangita was solemnized with accused Janardhan about four years ago on a 21st of Vaishakha of the Bengali calendar year and thereafter Sangita went to her husband’s house at Takmacherra under Santirbazar P.S. and started living there. In the marriage he had given Rs. 50,000/-(rupees fifty thousand) in cash, one Pulsar motor bike, golden ornaments and other utensils, bed and beddings, etc. as dowry. After about six months of marriage Sandhya Rani Debnath(mother-in-law), Manika Debnath(sister-inlaw) and Pradip Debnath(husband of sister-in-law), all inflicted physical and mental torture on her saying that they would sell away the Pulsar motor bike given at the time of marriage and that another costly motor bike costing Rs. 1.5 lakhs should be given and since the motor bike was not given as demanded by the husband, mother-in-law, sister-in-law and the husband of sister’s-in-law, all inflicted physical and mental torture on Sangita. On different phase he gave Rs. 55,000/-(rupees fifty five thousand) but the amount could not please the accused persons and they continued to inflict torture on Sangita. There were 2/3 Panchayat meetings and in spite of giving assurance in the Panchayat still Sangita was subjected to torture. He alleged that on 10.10.2010 at about 8.00 PM husband, mother-in-law, sister-in-law and the husband of the sister’s-in-law of Sangita, together tied her hands and legs, poured kerosene on her body and thereafter set her to fire and as a result his daughter died in G.B. Hospital on that day, i.e. on the date of lodging the FIR. 4. Based on the FIR Santirbazar P.S. Case No.73 of 2010 was registered under Sections 498A and 304B of IPC and initially investigation was taken up by S.I. Dipu Deb Barma(PW15) but subsequently investigation was done by SDPO Amitabha Pal(PW16) and he laid the charge sheet against accused-appellant, Janardhan Debnath, his mother Sandhya Rani Debnath, sister Manika Debnath and husband of Manika, namely Pradip Debnath, arraying them as accused for commission of offence punishable under Section 498A and 304B of IPC. 5. In the course of trial, learned Addl. 5. In the course of trial, learned Addl. Sessions Judge on 15.09.2011 framed charges against the accused-appellant and the other acquitted accused persons for commission of offence punishable under Sections 498A and 304B of IPC to which the accused persons pleaded not guilty and claimed to be tried. 6. To prove the charges, prosecution examined 17(seventeen) witnesses, namely— PW1 Bijoy Debnath, PW2 Parimal Debnath, PW3 Saraswati Debnath, PW4 Paritosh Bhowmik, PW5 Jiban Krishna Sen, PW6 Jahar Debnath, PW7 Narayan Ch. Dey, PW8 Mintu Debnath, PW9 Subodh Ch. Debnath, PW10 Utpal Das, PW11 Dilip Debnath, PW12 Md. Taher Miah, PW13 Dr. Pranab Choudhury, PW14 Suman Kr. Chakraborty, PW15 Dipu Debbarma, PW16 Amitabha Pal and PW17 Dibyendu Roy. Out of the prosecution witnesses, PWs 2 and 3 are the parents of the deceased. PW4 is the uncle and PW8 is the elder brother and PW9 is the grandfather of the deceased. PWs 5, 6 and 7 are the residents of village Birchandra Manu, i.e. the adjacent village of the accused persons. PW11 is the scribe of the FIR. PW10 is a neighbor of the accused and he was declared hostile by the prosecution. PW12 was tendered and neither examined in-chief nor cross-examined. PW13 is the Medical Officer who conducted postmortem examination over the dead body of Sangita. PW14 is the Scientific Officer of State Forensic Science Laboratory who examined the seized materials and submitted report. PWs 15, 16 and 17 are the police officers and out of them PWs 15 and 16 investigated the case and PW16 submitted charge sheet. PW17 was the O/C of G.B.T. O.P. and he conducted inquest over the dead body. PW1 is a seizure witness of Exbt.M.O.1 series. 7. After closure of the prosecution evidence the accused-appellant and other accused persons were examined under Section 313 of CrPC and in their turn accused-appellant Janardhan Debnath examined himself as DW4 and also examined seven more witnesses, namely DW1 Dr. Subhasish Debbarma, DW2 Dr. Souvik Debbarma, DW3 SI Dipu Debbarma, DW5 Manik Debnath, DW6 Ajit Barman, DW7 Malati Noatia and DW8 Shipra Rani Roy. During examination of the aforesaid prosecution witnesses, prosecution also proved the following documents and materials: Exhibit-1/1, 1 and 1/2 , seizure list of the wearing apparels of the victim, a bottle cap and four burnt match sticks and signatures of PWs 1 and 15. During examination of the aforesaid prosecution witnesses, prosecution also proved the following documents and materials: Exhibit-1/1, 1 and 1/2 , seizure list of the wearing apparels of the victim, a bottle cap and four burnt match sticks and signatures of PWs 1 and 15. Exhibit-2/1 series, 2, 2/2 and 2/3, the complaint and signatures of PWs 1, 11 and the O/C of the P.S. Exhibits-3, statement of PW10 recorded under section 161 of CrPC. Exhibits-4 and 4/1, the post-mortem examination report of the deceased and signature of PW13. Exhibit-5 and 5/1, the report of scientific officer on the seized clothes and his signature. Exhibit-6 and 6/1, FIR form and signature of the O/C of the P.S. Exhibit-7 and 7/1 series, hand sketch map and index of the place of occurrence and signature of PW15. Exhibit-8 and 8/1, inquest report and signature of PW17. Exhibit.M.O.(i) series, wearing apparels of the victim, a bottle cap and four burnt match sticks. In course of examination of DWs defence also proved the following: Exbt.A, A/1 and A/2, dying declaration and signatures of Dr. Souvik Debbarma, DW2 AND Smt. Shipra Rani roy, DW8. Exbt.B, discharge certificate of T.S. Hospital, Udaipur in the name of Sangita Debnath. Exbt.C series, copies of bed head tickets relating to treatment of Sangita Debnath in three sheets, Exbt.D, extract copy of GDE No.536 dated 24.6.10. Exbt.E, extract copy of GDE made by DW4, Exbt.F., OPD ticket of the Shilchar Medical College in the name of Sangita Debnath. Exbt.G., discharge certificate of the GBP Hospital, Agartala in the name of accused Janardhan Debnath. 8. Learned Addl. Sessions Judge at the conclusion of trial acquitted all the four accused persons from the charge under Section 498A of IPC. He has, however, found accused-appellant, Janardhan Debnath guilty of committing offence punishable under Section 304B of IPC and sentenced him to suffer RI for seven years and hence this appeal. 9. Heard learned senior counsel, Mr. P.K. Biswas for the accused-appellant and learned Addl. P.P., Mr. R.C. Debnath for the State respondent. 10. Learned senior counsel, Mr. Biswas has submitted that the parents and relatives of the deceased made omnibus statements about exercise of cruelty. Nothing stated as to in what manner the deceased was tortured and no act or omission on the part of the accused which constituted the alleged torture stated by those witnesses. R.C. Debnath for the State respondent. 10. Learned senior counsel, Mr. Biswas has submitted that the parents and relatives of the deceased made omnibus statements about exercise of cruelty. Nothing stated as to in what manner the deceased was tortured and no act or omission on the part of the accused which constituted the alleged torture stated by those witnesses. The trial Court held that the charge under Section 498A of IPC has not been proved and under such facts and circumstances the finding of the trial Court holding the accused-appellant guilty of dowry death was wrong and not sustainable. He has further submitted that the deceased made a dying declaration which was recorded by most independent and reliable witnesses who are examined as defence witnesses but the trial Court has failed to appreciate the dying declaration which is proved as Exbt.A and while the case is absolutely doubtful about dowry death the trial Court still making assumption and presumption arrived at a conclusion of guilt of the accused and hence the judgment is not tenable and is liable to be set aside and quashed. He has further submitted that the deceased had a tendency of committing suicide and the defence has proved the document that she was before marriage also once admitted in hospital for consumption of poison and subsequently also after marriage she was treated at Silchar by a Psychiatrist, whereas those circumstances the trial Court failed to consider and arrived at a finding of guilt of the accused. It is also submitted by Mr. Biswas, learned senior counsel that the accused also suffered burn injury in his hand and belly at the time when he was trying to put out the fire and he was admitted in G.B. Hospital and undergone treatment for eight days. That circumstances also the trial Court failed to consider and arrived at a wrong and perverse finding. 11. Learned Addl. P.P. on the other hand has submitted that PWs 2 to 9 made consistent statement that on demand of a new costly motor bike the deceased was subjected to cruelty in the matrimonial home and as a result of which she died due to burn injuries. 11. Learned Addl. P.P. on the other hand has submitted that PWs 2 to 9 made consistent statement that on demand of a new costly motor bike the deceased was subjected to cruelty in the matrimonial home and as a result of which she died due to burn injuries. It is not important whether the death was accidental or suicidal but since she was subjected to cruelty within seven years of marriage, the ingredient of offence punishable under Section 304B has been proved and so the trial Court rightly convicted the accused-appellant. 12. It is an undisputed fact that Sangita died an unnatural death on receipt of 96 percent burn injuries all over her body on 10.10.2010 at evening time at about 7.30/8.00 PM and she died in G.B. Hospital on 11.10.2010 at about 1.30/2.00 PM. It is also an undisputed rather an admitted fact that the death occurred within seven years of marriage. 13. Now the first point to be decided as to whether Sangita was subjected to cruelty by the accused-appellant in the matrimonial home on demand of dowry. 13.1. It is not disputed that a Pulsar motor bike was given at the time of marriage. It is the allegation of the prosecution that the accused-appellant and other members of his family intended to sell out the pulsar motor bike and wanted a newer version of motor bike costing Rs. 1.5 lakhs and on the demand of that amount Sangita was subjected to torture. 13.2. In the FIR the informant, i.e. PW2 stated that the accused-appellant, his mother, sister and sister’s husband, physically and mentally tortured Sangita. Nothing stated in the FIR as to what were the acts or omissions and/or acts and deeds by which Sangita was subjected to torture. In his deposition also PW2, the informant stated that all the accused persons demanded Rs. 1.5 lakhs and accused Janardhan used to tell Sangita that unless the money would be paid he would sell the motor cycle given at the time of marriage which Sangita used to protest and therefore she was subjected to torture. Sangita used to tell him over telephone and also when she used to visit the parents house. In his deposition also he stated nothing as to what was the manner of torture inflicted on Sangita for non-payment of the amount of Rs. Sangita used to tell him over telephone and also when she used to visit the parents house. In his deposition also he stated nothing as to what was the manner of torture inflicted on Sangita for non-payment of the amount of Rs. 1.5 lakhs which was allegedly demanded by the accused persons for purchase of a new motor bike. 13.3. PW3, mother of Sangita, PW4 uncle of Sangita, PW8 brother of Santiga and PW9 grandfather of Sangita, all stated in the same tune that since the amount for purchase of a costly motor bike was not paid Sangita was subjected to torture. They also have not uttered a single word as to what was the manner of torture. What were the acts or omissions by which Sangita was subjected to torture mentally or physically. They made a general statement that since the demand was not fulfilled Sangita was subjected to torture by the accused persons including the accused-appellant. 13.4. A mere statement that the deceased was subjected to torture since the demand was not fulfilled is not enough to hold that she was harassed on demand of dowry unless the particular acts/deeds/omissions stated by the witnesses. 13.5. There is no eyewitness of torture or harassment. Naturally, the matrimonial offences are committed in the four-walls of matrimonial home and others have no access to such commission or omission and therefore such act has to be proved based on circumstantial evidence or on the statement of the deceased. All the witnesses who were close relatives of the deceased simply stated that Sangita was subjected to torture since the demand was not fulfilled. The Supreme Court in the case of Amar Singh v. State of Rajasthan reported in (2010) 9 SCC 64 has considered this aspect very meticulously and in para 31 and 32 he Court held thus: “31. All the witnesses who were close relatives of the deceased simply stated that Sangita was subjected to torture since the demand was not fulfilled. The Supreme Court in the case of Amar Singh v. State of Rajasthan reported in (2010) 9 SCC 64 has considered this aspect very meticulously and in para 31 and 32 he Court held thus: “31. The evidence of PW 5 (brother of the deceased) is that whenever the deceased used to come home she used to complain that her in-laws have been teasing her and they were demanding a scooter or Rs.25,000/- for a shop and that when the deceased came home one month prior to her death, she complained that her mother-in-law and all other in-laws used to torture her and taunt her that she did not bring anything, but PW 5 has not described the exact conduct of the mother-inlaw and other in-laws on account of which the deceased felt tortured and taunted. On the other hand, the evidence of PW 4 is clear that Amar Singh used to taunt her that she has come from a hungry house. Thus, there was evidence in the case of Amar Singh about his exact conduct which caused harassment to the deceased but there was no such evidence in the case of Jagdish and Gordhani. 32. A prosecution witness who merely uses the word "harassed" or "tortured" and does not describe the exact conduct of the accused which, according to him, amounted to harassment or torture may not be believed by the court in cases under Section 498-A and 304-B IPC. For this reason, the High Court has taken a view that the charges against Jagdish and Gordhani have not been established beyond reasonable doubt and that their case is distinguishable from that of Amar Singh and that Jagdish and appear to have been implicated because they were members of Amar Singh's family.” 13.6. All those prosecution witnesses who have stated about torture on the deceased are all close relatives of the deceased. Their evidence naturally requires to be closely scrutinized since they adduced evidence with the shock of losing their dear and near, i.e. the deceased. All those prosecution witnesses who have stated about torture on the deceased are all close relatives of the deceased. Their evidence naturally requires to be closely scrutinized since they adduced evidence with the shock of losing their dear and near, i.e. the deceased. This aspect was considered by the Supreme Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra, reported in (1984) 4 SCC 116 wherein the Court has observed that in cases of such nature the testimony of relative witnesses should be scanned with great care and caution. In para 48 of the judgment the apex Court has observed thus: “48. Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the background of which the oral statements are to be considered. All persons to whom the oral statements are said to have been made by Manju when she visited Beed for the last time, are close relatives and friends of the deceased. In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that this is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the Court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of the tenth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it.” 13.7. PWs 5, 6 and 7 simply stated that they were informed by PW2 about the torture on Sangita and that they attended meetings, once held in the house of the accused and twice held at Birchandra Manu market. The trial Court, as it appears, put lot of emphasis on this part of evidence. Whereas I find PWs 5, 6 and 7 were examined by I.O. after about 83 days of the date of occurrence. The trial Court, as it appears, put lot of emphasis on this part of evidence. Whereas I find PWs 5, 6 and 7 were examined by I.O. after about 83 days of the date of occurrence. PWs 5, 6 and 7 had no direct contact with the deceased. They only stated that they were informed by PW2 about the torture and that they attended the village meetings where the accused and his mother were present and PW2 was also present and in the meeting it was discussed about the torture on the deceased and the accused persons made commitment that they will not torture the deceased. The evidence of those three witnesses is not fully consistent. However, I find no reason at all to attach an extraordinary importance to the evidence of those witnesses, specially at all there was a meeting held on the issue in the house of the accused or at Birchandra Manu or not. The village Chairman of Birchandra Nagar was examined as DW6 and village Chairman of the accused’s village Takmacherra was examined as DW7. They categorically stated that there was no meeting at all in their respective villages relating to the matrimonial issue of the accused. Under such circumstances, I do not at all agree with the finding of the learned trial Judge that the evidence of PWs 5, 6 and 7 which corroborated the evidence of PW2 about the village meetings was of utmost importance to hold that the deceased was subjected to cruelty on demand of dowry in the matrimonial home. 13.8. I am, therefore, of considered opinion that the prosecution has failed to prove that the deceased was subjected to cruelty on demand of dowry. 14. Section 304B prescribes thus: “[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). 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.] Section 113B of the Evidence Act reads thus: “113B. Presumption as to dowry death.—When the question is whether a person has committed the dowry death of a women and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person 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).” 15. It is a settled law that the burden lies on the prosecution to prove the primary fact and when that burden is discharged the question of presumption will come. The deceased Sangita died an unnatural death on receipt of 96 percent burn injuries in the house of the accused-appellant. The accused-appellant examined himself as DW4 and in his deposition he stated that on 10.10.2010 at about 6.30 PM he returned home from his office and then he entered in the bathroom for taking bath. At that time there was electricity failure. Immediately, he heard the cries of Sangita. Coming out of the bathroom he entered in his room and found Sangita was engulfed in fire. A lightened lantern was there. There were two motor cycles in the hut which also caught fire and also the mosquito net. Somehow he dowsed the fire and at that time Sanjoy, Bijoy(PW1) and Manik(DW5) arrived there. He also sustained burn injury in the process. Thereafter, he and Sangita were taken to T.S. District Hospital, Udaipur. Reaching there he found his father-in-law Parimal Debnath and some other persons were there. Being asked by him as to how the incident was caused, Sangita told him that she was caught with fire from the lantern. After a while the persons accompanying Parimal Debnath started assaulting him and police came to rescue and took him to R.K. Pur P.S. From there he was taken to G.B. Hospital, Agartala and he was under treatment at G.B. Hospital. After a while the persons accompanying Parimal Debnath started assaulting him and police came to rescue and took him to R.K. Pur P.S. From there he was taken to G.B. Hospital, Agartala and he was under treatment at G.B. Hospital. After the fire incident in his house he talked to Sangita where other persons were also there and at that time also she stated that she was caught with fire from the lantern. This statement of the accused has not been shaken in cross-examination rather it is supported by the dying declaration of the deceased which is proved as Exbt.A. 16. PW16, SDPO Santirbazar who investigated the case and submitted charge sheet in his examination-in-chief made clear statement that on 04.11.2010 he received the dying declaration of the victim Sangita recorded by Dr. Souvik Debbarma of G.B. Hospital. In cross-examination he proved the dying declaration received by him from the Superintendent of G.B. Hospital and he proved it as Exbt.A. So, the dying declaration was already placed on record whereas prosecution did not take step to prove the dying declaration rather defence has brought it on record. Dr. Shovik Debbarma has been examined as DW2. In his deposition he stated that on 10.10.2010 he was posted as Medical Officer at G.B.P. Hospital, Agartala. On that day he was working in the Female Surgical Ward, Unit-I. On that day in that ward he recorded the dying declaration of Sangita Debnath in presence of Smt. Manika Debnath, sister of Janardhan Debnath and ASI Sagar Chandra Das. Since he cannot write in Bengali, the dying declaration was written by Sipra Rani Roy, Ward Sister on his dictation. After it was reduced into writing he took LTI of Sangita Debnath and also the signatures of Sister Smt. Sipra Rani Roy, Smt. Manika Debnath and ASI Sagar Chandra Das. He also put his signature therein. He proved the dying declaration which was already marked as Exbt.A by PW16 and his signature was marked as Exbt.A1. There is nothing in his cross-examination to discard his evidence. DW8 Sipra Rani Roy was the Staff Nurse of the hospital who recorded the dying declaration and in her deposition, she stated that on 10.10.2010 she was posted as Staff Nurse at the Female Surgical Ward, Unit-I at the G.B. Hospital, Agartala. On that day one Smt. Sangita Debnath was admitted in that ward with burn injury. DW8 Sipra Rani Roy was the Staff Nurse of the hospital who recorded the dying declaration and in her deposition, she stated that on 10.10.2010 she was posted as Staff Nurse at the Female Surgical Ward, Unit-I at the G.B. Hospital, Agartala. On that day one Smt. Sangita Debnath was admitted in that ward with burn injury. She recorded her statement on that day as was stated by Sangita and as was dictated to her by Dr. Souvik Debbarma. Dr. Debbarma asked her to write the declaration as he could not write in Bengali. After it was written thumb impression of Sangita was obtained in it by Dr. Souvik Debbarma. The statement was signed by doctor and she also put her signature. She identified it as Exbt.A as the dying declaration and identified her signature which was marked as Exbt.A2. There is nothing material in her cross-examination. 17. DWs 2 and 8 are most independent witnesses and they made very natural statement. There is nothing to discard their evidence. 17.1. Let us now see what the deceased stated which was recorded as Exbt.A. As already stated, it was written in Bengali by DW8. Exbt.A reads thus: “I Smti. Sangita Debnath, aged 21 years. My body caught fire with kerosene and thereafter the bike and hut also caught fire. My entire body got burnt. My husband’s name is Janardhan Debnath, resident of Birchandra Manu. On having fully understanding everything I agreed and put my thumb impression.” 17.2. In the above statement the deceased did not make any whisper that she was set to fire by her husband or that she committed suicide. Rather the statement speaks that the incident occurred accidentally that she was caught with fire with kerosene. This statement of the deceased supports the statement made by the accused and DW5 Manik Debnath. DW5 is a close neighbour of Janardhan, the accused-appellant and he stated that hearing cries he along with his sons, Sanjoy and Bijoy ran to the house of the accused and found Sangita was kept in the courtyard with severe burn injury and she stated that she was caught with fire while pouring kerosene in the lantern. According to DW5, his sons Sanjoy and Bijoy also accompanied him and Bijoy has been examined as PW1 but in his cross-examination no question was put to Bijoy as to whether Sangita made any statement or not. According to DW5, his sons Sanjoy and Bijoy also accompanied him and Bijoy has been examined as PW1 but in his cross-examination no question was put to Bijoy as to whether Sangita made any statement or not. PW1 Bijoy Debnath in his cross-examination stated that hearing cries he went to the house of the accused and found wife of Janardhan, namely Sangita was lying on the floor with severe burn injury and Janardhan also had burn injury of his hands and he had no clothes on his body. There were some burn injuries on his belly. On his request Sangita was taken to T.S. District Hospital and Janardhan, his sister Manika and her husband Pradip also went to the hospital in the same car. Though PW1 has not stated anything about any statement of Sangita but the statement of DW5 cannot be discarded simply because he made the statement about what Sangita had stated rather his statement is supporting the dying declaration made by the deceased which is duly proved. 18. Learned Addl. P.P. has submitted that PW2, the father of the victim also stated that when he went to hospital the victim Sangita told him that the accused persons after pouring kerosene oil set her to fire. But conspicuously PW2 did not make any such statement in the FIR which was admittedly lodged after the death of the deceased. Had the deceased made any such statement to him in the hospital before her death he would, in ordinary course, mention it in the FIR but there is no such mention of any such dying declaration made by the deceased before PW2. Further, as I find, PW2 went to hospital along with PW3 and PW8, i.e. the mother and brother of the deceased respectively. But PW3 and PW8 stated nothing that the deceased made any dying declaration before them. Therefore, this argument of learned Addl. P.P. that a dying declaration was made before PW2, cannot gain any strength and the trial Court also rightly did not consider it. Defence also brought on record that the deceased was once treated at Silchar hospital for her psychiatric treatment and by examining DW1 defence also proved a discharge certificate and bed-head ticket in the name of Sangita Debnath who was treated at T.S. District Hospital, Udaipur from 30.12.2006 to 01.01.2007 for poisoning. Defence also brought on record that the deceased was once treated at Silchar hospital for her psychiatric treatment and by examining DW1 defence also proved a discharge certificate and bed-head ticket in the name of Sangita Debnath who was treated at T.S. District Hospital, Udaipur from 30.12.2006 to 01.01.2007 for poisoning. Those evidence are not at all material for decision of this case. Learned senior counsel, Mr. Biswas referred the case of Gaffar Badshaha Pathan v. State of Maharashtra reported in (2004) 10 SCC 589 and submitted that in that reported case also the accused relied on a dying declaration which was taken to consideration and the burden on the accused is not so heavy as it is on the prosecution. Para 5 and 6 of the judgment may be gainfully referred here which reads as follows: “5. Dr. A.U. Masurkar was the Chief Medical Officer of the hospital at the relevant time. The High Court has held that the recording of the dying declaration and story stated therein apparently appears to be false and concocted for the various reasons noticed in the impugned judgment. It has to be borne in mind that the fact whether the dying declaration is false and concocted has to be established by the prosecution. It is not for the accused to prove conclusively that the dying declaration was correct and the story therein was not concocted. The fact that the statement of the deceased was recorded at about 9.00 p.m. by the Head Constable cannot be doubted though an attempt to the contrary seems to have been made by the prosecution. The statements of the prosecution witnesses (PW 5 and PW 11) also show that the statement was recorded by the Head Constable. According to PW 5, it was only a show made by the Head Constable of recording statement, since according to the said witness, the deceased was not in a position to speak at that time. Even PW 11, a doctor in the hospital, has deposed about the recording of the statement by the Head Constable though he has not formally proved the dying declaration but has certified the correctness of the endorsement of Dr. A.U. Masurkar on the dying declaration. PW 11 was shown the dying declaration. He has deposed that the certificate recorded on the dying declaration is in the handwriting of Dr. Masurkar, Chief Medical Officer of the hospital. A.U. Masurkar on the dying declaration. PW 11 was shown the dying declaration. He has deposed that the certificate recorded on the dying declaration is in the handwriting of Dr. Masurkar, Chief Medical Officer of the hospital. He has further deposed that Dr. Masurkar is in the hospital since the last 12 to 15 years and that he had degree in MS and was estimated to be an honest and expert surgeon of the area. One of the reasons which had strongly weighed with the High Court in rejecting the dying declaration is that the endorsement of the doctor is only about the deceased lady being conscious and not that she was in a fit condition to make the statement. The High Court went into distinction between consciousness and fitness to make statement. On the facts of the present case, we are unable to sustain the approach adopted by the High Court. It is one thing for an accused to attack a dying declaration in a case where the prosecution seeks to rely on a dying declaration against an accused but it is altogether different where an accused relies upon a dying declaration in support of the defence of accidental death. The burden on the accused is much lighter. He has only to prove reasonable probability. Under these circumstances, the dying declaration could not have been rejected on the ground that it does not contain the endorsement of the doctor of the fitness of the lady to make the statement as the certificate of the doctor only shows that she was in a conscious state. The endorsement of the doctor aforequoted is not only about the conscious state of the lady but is that she made the statement in a conscious state. 6. Yet another reason for rejecting the dying declaration is that as per the testimony of the Head Constable (DW 1), Dr. Masurkar did not examine the deceased in his presence before or after recording of her statement by the witness but the doctor told DW 1 that he had recently examined the lady and that she was in a conscious state of mind. It is in evidence that the endorsement on dying declaration, Ext. P-59 had been made in the handwriting of the doctor. DW 1, the impugned judgment notes, admitted that he had no personal knowledge regarding the actual examination of the patient by Dr. Masurkar. It is in evidence that the endorsement on dying declaration, Ext. P-59 had been made in the handwriting of the doctor. DW 1, the impugned judgment notes, admitted that he had no personal knowledge regarding the actual examination of the patient by Dr. Masurkar. The High Court then goes on to hold that the defence failed to produce Dr. Masurkar as a witness and, relying upon the factum of pethidine injection having been administered, comes to the conclusion that there was every possibility that the patient was not in a position to speak. The High Court further gets support from the evidence of PW 12 and PW 15, since according to these witnesses the patient was not in a position to speak. Here, again we are unable to sustain the approach adopted by the High Court. The dying declaration shows that it is a case of accident. It is possible in a given case that a case of homicide may be shown as a case of accident. But, then if such a dying declaration, as the one produced in the present case is recorded, it would be for the prosecution to explain the circumstances under which the same was recorded and established by leading satisfactory evidence as to why it should be discarded and not acted upon. Nothing of the kind was done. The prosecution had to explain the circumstances under which the endorsement was made by the doctor on the dying declaration” 19. No doubt, it is most shocking that a young lady of twenty one years lost her life on receipt of severe burn injuries otherwise than under normal circumstances and within seven years of marriage but the prosecution evidence is not enough to arrive at a conclusion that the deceased was subjected to cruelty or harassment on demand of dowry and that the deceased died a dowry death. No doubt, the deceased died an unnatural death which was not in normal circumstance but in the given facts and circumstances of the case that the deceased died an accidental death cannot be ruled out. 20. Accordingly, the judgment and order of conviction and sentence dated 28.05.2012 passed by the learned Addl. Sessions Judge, Belonia, South Tripura, in Sessions Trial Case No.28(ST/B) of 2011, is set aside. 20. Accordingly, the judgment and order of conviction and sentence dated 28.05.2012 passed by the learned Addl. Sessions Judge, Belonia, South Tripura, in Sessions Trial Case No.28(ST/B) of 2011, is set aside. The accused-appellant is acquitted from the charge levelled against him under Section 304B of IPC and he be set at liberty on benefit of doubt. 21. Send back the L.C. records along with a copy of the judgment.