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2018 DIGILAW 1027 (GAU)

Sukumar Das S/o Suresh Das v. State of Assam

2018-07-13

RUMI KUMARI PHUKAN

body2018
JUDGMENT AND ORDER : 1. Heard Mr. Z. Hussain, learned Amicus Curiae appearing for the appellant and also heard Ms. S. Jahan, learned Addl. Public Prosecutor appearing on behalf of the State of Assam. 2. One Sri Uttam Das, brother of deceased lodged an Ejahar/FIR before the Officer-in- Charge, Silchar Sadar P.S. on 14.03.2010 alleging inter-alia that the deceased, late Janata Das was married to accused No. 1 about 7(seven) months back. The accused person often asked her to bring an amount of Rs. 30,000/- (Rupees Thirty thousand) from her parental house. For non-fulfillment of the same due to poverty, the said accused along with the other accused persons used to assault the victim. For that many occasions bichar was held but the accused persons were adamant on their demand of money and they used to threaten with dire consequences. Subsequently, on 08.03.2010 about 7(seven) months after marriage about 2-30 P.M the accused persons jointly pouring kerosene set fire on the victim. On her raising alarm neighboring people came and took the victim to SMCH Silchar where during the treatment succumbed to burn injuries on 14.03.2010. 3. On receipt of the aforesaid FIR by the O/c, Silchar Sadar P.S. the same was registered as Silchar P.S. Case No. 539/2010 under Sections 304(B)/34 IPC. After due investigation of the matter, charge-sheet was filed against the accused under Sections 304(B)/34 IPC. 4. The case was committed to the Court of Session being the offence triable by the Court of Sessions. 5. In course of the trial, prosecution examined as many as 8(Eight) witnesses including the M.O and I.O. The defence plea was that the burn injury was an accidental one and the complainant in order to coercing money filed a false case. During examination of the accused persons under Section 313 of Cr.P.C. they declined the allegation. No evidence is however adduced in their defence. 6. At the conclusion of the trial, the learned Court finds and hold the accused persons guilty u/s. 304(B) IPC and convicted the accused persons, Sri Sukumar Das and Smt. Arati Das under 304(B) IPC and sentenced them to rigorous imprisonment for 7(seven) years each along with a fine of Rs. 2,000/- (Rupees Two thousand) each and in-default of payment of fine, to suffer further R/I for 1(one) month each. Other accused person Suprabha Das was acquitted from the charge. 7. 2,000/- (Rupees Two thousand) each and in-default of payment of fine, to suffer further R/I for 1(one) month each. Other accused person Suprabha Das was acquitted from the charge. 7. As against the aforesaid order of conviction, present appeal has been preferred as jail appeal. 8. The learned Amicus Curiae submitted that prosecution case is suffering from various lacunae and evidence on record is highly insufficient to rest the conviction. There is no eye witness to the occurrence and material portion of evidence is contradicted by the I.O. and inconsistent. 9. On the other hand, according to the learned Addl. P.P. there is no infirmity in the aforesaid order and conviction. Let us examine the evidence on records which is as follows. 10. The PW-1, Hiru Das, who was a neighbor of complainant’s landlord stated that the incident was reported by his wife that the victim died at her matrimonial house due to burn injury. 11. PW-2, brother of the victim stated that after the marriage of his sister with accused person, she started to reside in her matrimonial house. About eight months after the marriage, his sister died due to burn injury. Fifteen days after the marriage mother of accused person asked his mother for an amount of Rs. 30,000/- (Rupees Thirty thousand). But his mother failed to fulfill the demand. After some days his sister returned to their house and reported about some quarrel. After some time sister of accused Sukumar came to their house and with threatening brought the victim back to her matrimonial house. His sister was reluctant to go. On the date of the occurrence he received an information that the victim sustained burn injury. Immediately he went to S.M.C.H. and found the victim under treatment. After 5-6 days of her treatment she died. After that he lodged the FIR vide Ext. 1 is the FIR. 12. PW-3, Nishi Kt. Das, the neighbor of the accused persons stated that the deceased was his cousin. On the date of occurrence at about 2/2-30 PM he received information from the mother and sister-in-law of the victim that the victim was admitted to SMCH. He then went there and found the victim dead. 1 is the FIR. 12. PW-3, Nishi Kt. Das, the neighbor of the accused persons stated that the deceased was his cousin. On the date of occurrence at about 2/2-30 PM he received information from the mother and sister-in-law of the victim that the victim was admitted to SMCH. He then went there and found the victim dead. He also found mother of the victim who told him that the victim sustained burn injury at her matrimonial house in presence of her parents-in-law and husband, besides victim’s mother also told him that the accused person demanded Rs. 30,000/- for registration of their homestead and the same could not be fulfilled. Husband of the victim was not found in the hospital. However, other accused persons were found in SMCH. 13. PW-4 (Sreedhar Das) another neighbor of the accused stated that on the date of occurrence while he was in his nearby house at about 11.00 am he found victim ran out from her matrimonial house having fire on her body. Seeing the same he raised alarm. Hearing alarm sister of accused Sukumar Das, Suprabha Das ran out from her matrimonial house adjacent to the accused persons. Suprapha extinguished the fire by pouring water. The victim was taken to SMCH. Except Supraha no other accused or inmates of the house of the accused came there. He further stated that victim was the second wife of accused Sukumar Das. About one year after the incident the accused again married. In cross-examination, he has stated that the accused Suprabha is the sister of the accused Sukumar. 14. PW-5, Suryamoni Das, mother of the victim and PW-6, Binal Das, the sister-in-law of the victim have given similar statement that since after the marriage of the victim, accused Sukumar Das started demanding Rs. 30,000/- from them. On their failure accused persons used to torture the victim both physically and mentally. Victim being unable to bear torture once returned back to her parent’s house. PW-5 stated that on the day of occurrence, on being informed about serious condition of her daughter (victim) he rushed to SMCH and found her daughter lying on the hospital bed with burn injury. On her query she/victim told her that, her husband poured K-Oil and put fire on her. During treatment she succumbed to injuries after six days. 15. PW-5 stated that on the day of occurrence, on being informed about serious condition of her daughter (victim) he rushed to SMCH and found her daughter lying on the hospital bed with burn injury. On her query she/victim told her that, her husband poured K-Oil and put fire on her. During treatment she succumbed to injuries after six days. 15. Sister-in-law of victim Smt. Bina Das as PW-6 has stated that about seven months after the marriage, the victim died due to burn injury at SMCH Silchar. On her query the victim told that accused Sukumar Das poured kerosene oil and then set fire on her. She further stated that after one month of marriage mother-in-law of the victim demanded Rs. 30,000/- from the victim’s parent for purchasing land. Demand could not be met. Consequently, accused persons misbehaved with the mother of the victim. She also stated that after admission of the victim at SMCH she visited SHCH and found the victim lying on the bed with burn injury. On her query the victim told that her husband poured kerosene oil on her and set fire. After six days of treatment she succumbed to injury. Both PW-5 and PW-6 denied all suggestion given by the defence in their cross- examination. 16. The Medical Officer/PW-7, Dr. G. Das, who carried out post-mortem examination of dead body of the victim had given the evidence as follows: “The deceased was found naked, built average, complexion was swarthy in healthy part. Rigor mortis was present in both upper and lower limbs. Blood tinged frothy discharged from mouth and nostrils. There was no characteristic smell of any inflammable substance present on the body. Mixed dermo epidermal burn injury over the face, all sides of both upper limbs, front and back of throax, upper part of the front of abdomen, back of abdomen, all sides of right lower limb and back of left lower limb leaving the rest parts of the body healthy. There was a clear line of demarcation between healthy and burnt tissues in the form of vital reaction. In the cranium brain and membrane found congested. In the thorax both lungs found congested and edematom. On cut frothy edema fluid mixed with blood exuded from cut surfaces. Visceral organs found congested. There was a clear line of demarcation between healthy and burnt tissues in the form of vital reaction. In the cranium brain and membrane found congested. In the thorax both lungs found congested and edematom. On cut frothy edema fluid mixed with blood exuded from cut surfaces. Visceral organs found congested. Opinion Death was due to exhaustion following ante mortem burn injuries of dermo dpidermal severity involving approximately 80 per cent of total body surface area. Approximate time since death was 16 to 24 hours.” 17. The IO/PW-8 has narrated about the course of the investigation, about the documents he had submitted, like the sketch map and the burn clothes etc. He had recorded the statement of the informant and other witnesses. He learnt that the injured had already been sent to the SMCH and the victim was succumbed to injuries and inquest had already been done by the Police and dead body was handed over to family members of the deceased after post-mortem. He has submitted the charge-sheet against the accused person after completion of investigation. In cross-examination he has stated that he found the accused in front of the gate of the SMCH and then he was apprehended. He has confirmed some omissions made by the PW-2, PW-5 and PW-6. He has stated that PW-2 and PW-6 did not stated before him that the accused Sukumar Das put fire upon the victim after pouring kerosene oil nor the PW-6 stated about misbehavior on the part of mother-in-law of the victim. 18. On the basis of aforesaid evidence, the learned Trial Court found and held both the accused guilty under Section 304-B IPC as aforesaid and hence the present appeal. 19. The learned counsel for the appellant has hammered the evidence of PW-2, PW-5 and PW-6 that their vital portion of evidence has been contradicted by the I.O. and there remains nothing to implicate the accused person with the offence charged. It has been urged that the victim died within a short span of marital life but there is dearth of evidence to bring home the charge that the victim was subjected to cruelty prior to her death. It contends that apart from the casual statement of the mother, brother and sister-in-law of the victim, no other witnesses has supported the case of the informant. 20. On the other hand, the learned Addl. P.P., Ms. It contends that apart from the casual statement of the mother, brother and sister-in-law of the victim, no other witnesses has supported the case of the informant. 20. On the other hand, the learned Addl. P.P., Ms. S. Jahan has submitted that the evidence on record is sufficient to prove the charge as against the accused persons as the witnesses have stated that there was a demand of dowry on the part of the accused persons. That apart the victim died of burn injury within a very short span of the marriage is itself sufficient to draw presumption of dowry death against the accused persons. 21. I have considered the submission of learned counsel for both the parties and carefully gone through the evidence on record. 22. Now, let us examine the legal provision as regard the offence charged. 23. Dowry death was introduced in the Indian Penal Code to combat the menace of cruelty upon the married wife. Under the said provision if a married woman dies:- (i) on account of burns or bodily injury or dies otherwise other than the medical normal circumstances. (ii) such death occurs within seven years of marriage. (iii) it is shown that she was subjected to cruelty or harassment by her husband or any relative. (iv) such cruelty or harassment was soon before her death. (v) such cruelty or harassment by the husband or his relative was for, or in connection with, demand for dowry. 24. When the above ingredients are fulfilled, the husband or his relatives who subjected her to such cruelty or harassment can be presumed to be guilty of offence under Section 304 (B) IPC as has been held in Satvir Singh vs. State of Punjab, (2001) 8 SCC 633 , relying on Shanti vs. State of Haryana, (1991) 1 SCC 371 : 1991 SCC (Cri) 191 and Kans Raj vs. State of Punjab, (2000) 5 SCC 207 : 2000 SCC (Cri) 935. 25. Further in catena of decisions it has been reiterated that what is punishable under Section 498 (A) or Section 304 (B) IPC is the act of cruelty or harassment by the husband or the relative of the husband on the woman. 25. Further in catena of decisions it has been reiterated that what is punishable under Section 498 (A) or Section 304 (B) IPC is the act of cruelty or harassment by the husband or the relative of the husband on the woman. The provision of Section 113 (B) Indian Evidence Act will be attracted only when it is shown that soon before her death a woman has been subjected to cruelty or harassment by her in-laws in connection with any demand of dowry. The act of subjecting a woman to cruelty or harassment or in connection with any demand for dowry by accused, therefore, must be established by prosecution to presume that accused has caused the dowry death. In Kans Raj vs. State of Punjab and Others, (2000) 5 SCC 207 , Hon’ble Supreme Court cautioned that in cases where accusation of dowry death are made, the over-tact attributed to persons other than the husband are required to be proved beyond reasonable doubt and by mere conjecture and implications of such relations cannot be held guilty for the offence relating to the dowry death. 26. In Amar Singh vs. State of Rajasthan, AIR 2010 SC 3391 , it has been held that a prosecution witness who merely used the word “harassed” or “tortured” and does not describe the exact conduct of the accused which according to them amounted to harassment or torture may not be believed by the Court in cases under Section 498 (A) and 304 B IPC. 27. On the next, the presumption under Section 113 B of the Indian Evidence Act with respect of dowry death can be raised only on the proof of the four essential conditions:- 1. The woman was subjected to cruelty or harassment. 2. By her husband or his relatives. 3. For or in connection with any demand for dowry. 4. Soon before her death. The woman was subjected to cruelty or harassment. 2. By her husband or his relatives. 3. For or in connection with any demand for dowry. 4. Soon before her death. For the purpose of the Section cruelty shall have the same meaning as in Section 498 (A) IPC which read as follows: “Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also liable to fine.” Explanation - For the purpose of this section, cruelty means:- (a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman. (b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. 28. In Mustafa Shahadal Seikh vs. State of Maharashtra, 2012 (11) SCC 397 , it has been held that in order to convict the accused for the offence punishable under Section 304 B IPC, all the essentials ingredients of the offence must be established by reliable and acceptable evidence and when all such ingredients are proved such death can be called as dowry death and such husband or his relatives shall be deemed to have caused her death. It has been further held that to attract the provision of Section 304 B IPC, one of the main ingredients of the offence which is required to be establish is that “soon before her death” she was subjected to her cruelty or harassment or in connection with the demand of dowry. The expression “soon before her death” used in Section 304 B IPC and Section 113 B of Evidence Act is with the idea of proximity test, though the language used in “soon before her death” no definite period has been enacted or defined in both the enactments. Accordingly, determination of the period which can come “soon before her death” is to be determined by the Court depending upon the facts and circumstances of its case. Accordingly, determination of the period which can come “soon before her death” is to be determined by the Court depending upon the facts and circumstances of its 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 proximate and live link between the affect of cruelty based on the dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has became stale enough not to disturb mental equilibrium of the woman concern it would be of no consequence. In this regard abduction Kaliyaperumal vs. State of T.N. (2004) 9 SCC 157 and Yashoda vs. State of M.P. (2004) 3 SCC 98 , is referred. 29. Bearing in mind the principles enunciated above, now let us analyze the evidence led by the prosecution as discussed above. It is an admitted position that there was no eye witness to the occurrence to the incident of setting fire on the deceased by the accused appellants by pouring kerosene oil. The only evidence that has been tried to projected against the accused is that the deceased made a statement before the two witnesses that her husband poured kerosene oil upon her. In the instant case there is two set of witnesses, one set comprises of neighboring witness of the deceased those are PW-1, PW-3 and PW-4 and other set comprises of relatives of the deceased, PW-2, PW-5 and PW-6. 30. The evidence of PW-4 is crucial who being the neighbor arrived at first point of time at the place of occurrence. She saw the deceased ran out from her matrimonial house with fire on her body and she made hue and cry and hearing the same, sister of the accused, Suprabha run out from the nearby house and douse the fire by water and other inmates of deceased were not found at that time. According to PW-4, the deceased was not in a position to tell anything. PW-1 and PW-3 are silent as to how the occurrence took place nor the they have uttered about any sort of cruelty upon the deceased by the accused persons. Their evidence no way supported the allegation of prosecution. 31. According to PW-4, the deceased was not in a position to tell anything. PW-1 and PW-3 are silent as to how the occurrence took place nor the they have uttered about any sort of cruelty upon the deceased by the accused persons. Their evidence no way supported the allegation of prosecution. 31. On the scrutiny of the evidence of PW-2, PW-5 and PW-6 would go to show their evidence is not consistent on material aspect. Regarding dowry PW-2 said that after 15 days of the marriage mother of the accused, namely, Arati Das demanded Rs. 30,000/- from his mother (PW-5) which however could not be fulfilled and after some days his deceased sister came to their house reported about some quarrel but there is no any whisper about any sort of harassment or cruelty upon the deceased. Similarly, he is silent about any sort of dying declaration made by the deceased but in cross-examination he has stated that the victim was not found normal and she said that suddenly fire raised from the oven and the accused wanted to push her. Such a statement made by the victim in unstable condition is not at all safe to acted upon and moreover such a statement was not made by the PW-2 before the I.O. as the I.O. has contradicted such version of the PW-2. 32. Now, coming to the evidence of the PW-5, who is the mother of the deceased, aged 60 years and the Court has recorded remarks that the witness is lack of hearing, it is seen that she has stated that on her arrival at the hospital, the deceased told her, that her husband poured kerosene oil upon her and set fire. Peculiarly, the said PW-5 who met the other witnesses PW-1, PW-3 and PW-4 did not reported the said aspect told by the deceased to those witnesses. However, she told them about the demand of Rs. 30,000/- by the accused persons for the registration of their homestead. The fact to be noted that even though the victim survived for 6 days after the incident but no dying declaration was recorded and there was no specific evidence that the victim was in a position to speak, whereas, the other witnesses have stated that the victim was very much in unstable condition. 33. The fact to be noted that even though the victim survived for 6 days after the incident but no dying declaration was recorded and there was no specific evidence that the victim was in a position to speak, whereas, the other witnesses have stated that the victim was very much in unstable condition. 33. Another testimony of the PW-6, who is the sister-in-law of the deceased cannot be accepted while she says about the dying declaration made by the deceased that the accused husband has poured kerosene oil upon the victim, as because such a statement was not made before the I.O. at earlier point of time. The I.O. has contradicted her version while giving evidence as PW-8. Moreover, the evidence of MO/PW-7, who conducted the postmortem examination is very much relevant to negate the allegation made by the relatives of the deceased, while he says that there was no characteristic smell of any inflammable substance present on the body and the burn injury was found only over the face, limbs and upper part of abdomen, rest of the part of the body was healthy. The allegation of pouring kerosene oil cannot sustain in the given facts and circumstances as discussed above. The relatives of the deceased always have a tendency to exaggerate the facts so as to nab the family of the victim whenever such incident of death occurred. Although death of a married woman within a short span of a married life is always a matter of serious concern but culpability of an accused is to be proved beyond all reasonable doubt in the parlance of law with credible evidence which is found lacking in the instant case. As has been discussed mere utterance of word cruelty is not at all sufficient to prove the offence of cruelty within the purview of law so as to raise the statutory presumption regarding the cause of death. 34. One of the crucial ingredients that the victim was subjected to cruelty soon before her death is not at all proved in the given case. The prosecution tired to project the case on mere conjecture and surmises but not on legal evidence. The one time demand of Rs. 34. One of the crucial ingredients that the victim was subjected to cruelty soon before her death is not at all proved in the given case. The prosecution tired to project the case on mere conjecture and surmises but not on legal evidence. The one time demand of Rs. 30,000/- was made by one of the accused towards registration of their homestead which cannot be related to dowry demand and there is absolutely no evidence that the victim was ever subjected to cruelty for non-fulfillment of dowry demand. One time the victim complained of some quarrel in the house for which she came to the parental house, which cannot be termed as a cruelty within the purview of the Section 498 (A) IPC. Being a mandatory presumption on the guilty conduct of an accused under Section 304 B IPC, it is for the prosecution to first show the availability of all the ingredients of the offence so as to shift the burden of proof in terms of Section 113 B of the Evidence Act. The prosecution herein failed to discharge the burden of proof as discussed above. The learned Trial Court has not addressed all such crucial aspect and has gone only on assumptions with regard to the date of marriage and the evidence of relatives which was contradicted by the I.O. 35. Over and above, prosecution case is also bad for non explanation of delay of 7 days, after such serious offence. That too, the allegation in FIR that the accused assaulted the victim and several round of discussion was held in this regard is not at all proved by the evidence on record. 36. Having carefully gone through the matters on record and proposition of law, this Court is of considered view that the prosecution has failed to establish the necessary ingredients of the offence under Section 304 B IPC. Accordingly, impugned order of conviction and sentence is hereby set aside. 37. Resultantly, the appeal is allowed. 38. Both the accused persons are acquitted from the charge on the benefit of doubt and they be released from the custody forthwith. 39. Return the LCR. 40. Appreciating the assistance rendered by the learned Amicus Curiae, Mr. Z. Hussain in conducting the appeal, the High Court Legal Service Authority is hereby directed to provide an amount of Rs. 7,500/- to the learned counsel.