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2018 DIGILAW 1451 (GAU)

Rosendra Chandra Das v. Shymal Kanti Das

2018-09-27

HITESH KUMAR SARMA

body2018
JUDGMENT : HITESH KUMAR SARMA, J. 1. This criminal revision petition is filed, under Section 397/401 of the Code of Criminal Procedure, challenging the judgment and order, dated 29.11.2008, passed by the learned Additional Sessions Judge, Cachar, Silchar, in Sessions Case No. 16 of 2008, acquitting the accused-respondent No. 1 from the charges under Sections 120(B)/304(B)/346/34 of the IPC. 2. I have heard Mr. AM Barbhuiya, learned counsel for the revision petitioner. I have also heard Mr. HRA Choudhury, learned senior counsel, assisted by Mr. A Ahmed, learned counsel for the respondent No. 1 as well as Mr. BJ Dutta, learned Additional Public Prosecutor, Assam, appearing on behalf of the State respondent. 3. After hearing the respective learned counsel for the parties at length and on perusal of the trial Court records including the evidence and the impugned judgment and as agreed to by the learned counsel for the parties, I propose to dispose of this criminal revision petition by this judgment. 4. The prosecution case, in brief, is that the daughter of the informant, Sri Rosendra Chandra Das (PW 9) was married to the accused-respondent No. 1, on 10.05.2006. After their marriage, both the deceased and the respondent No. 1/husband, lived together in the house of the respondent No. 1. The respondent No. 1/husband and his mother put pressure on the deceased to bring 5 tolas of gold ornaments, coloured TV and cash amount of Rs. 50,000/- from her parents, as dowry. The deceased was also physically assaulted and mentally tortured by the respondent No. 1/husband. The informant gave 5 tolas of gold to the respondent No. 1/husband, through one Sanjay Das, as claimed by him, but even thereafter, they did not stop subjecting the deceased to torture and, ultimately, they burnt the deceased and, thereafter, set their house in fire so as to generate an impression that the deceased died to the breaking out of the fire setting their house in ablaze. 5. On the basis of the above facts, the informant, PW 9, lodged the FIR. On receipt of the FIR, Dhola Police Station registered a case, being No. 157/2006, under Sections 120(B)/304(B)/346/34 of the IPC, investigated into it, collected evidence, and, finally, submitted charge-sheet under Section 304(B of the IPC against the accused-respondent No. 1. 6. 5. On the basis of the above facts, the informant, PW 9, lodged the FIR. On receipt of the FIR, Dhola Police Station registered a case, being No. 157/2006, under Sections 120(B)/304(B)/346/34 of the IPC, investigated into it, collected evidence, and, finally, submitted charge-sheet under Section 304(B of the IPC against the accused-respondent No. 1. 6. After exhausting all the legal formalities, the learned trial Court framed a charge under Section 304(B) of the IPC, explained the particulars of offences to the accused-respondent No. 1, under the aforesaid section of law, to which he pleaded innocence and claimed to be tried. Hence, the trial commenced. 7. The prosecution examined as many as 14 witnesses including the informant, the doctor and the Investigating Police Officer. The defence examined none. In the statement under Section 313 Cr.P.C., the accused-respondent No. 1 denied the accusations levelled against him. 8. The learned trial Court did not find the accused-respondent No. 1 guilty of the offence, under Section 304(B) of the IPC, and vide the judgment, referred to above, acquitted the accused-respondent No. 1 on benefit of doubt. 9. In an appeal against a judgment of acquittal, the Court is required to see whether there is any perversity in the decision of the learned trial Court in acquittal of the accused-respondent No. 1, on the basis of the evidence on record or whether the view adopted by the learned trial Court is also the possible view, although there may be another view possible. 10. On perusal of the entire evidence on record, it appears to this Court that the vital witnesses in this case are PW 9, PW 7, PW 4 and PW 11 for the reason that the PW 9 is the informant, father of the deceased, who has narrated the background facts leading to the alleged cause of death of the deceased. PW 7 being the sister of PW 9, is heard saying that she got the information about the cause of death from the father of the deceased (PW 9), PW 4 and PW 11 are said to be witnesses to the events prior to the date of occurrence between the deceased and the accused-respondent No. 1. Both PW 4 and PW 11 were supposed to settle any dispute between the deceased and accused-respondent No. 1, at the instance of PW 9. 11. Both PW 4 and PW 11 were supposed to settle any dispute between the deceased and accused-respondent No. 1, at the instance of PW 9. 11. The evidence of the Investigating Police Officer is of routine nature as he is found saying in his evidence that after receipt of the FIR, he caused the inquest as well as the post mortem examination of the deceased. He examined the witnesses, and finally, submitted charge-sheet. 12. PW 2, PW 3, PW 4 and PW 11, are all declared hostile by the prosecution and they were subjected to cross-examination by the prosecution and, then, by the defence. In their cross-examination by the prosecution, nothing could be elicited from PW 2, PW 3, PW 4 and PW 11 suggesting involvement of the accused-respondent No. 1 with the commission of the alleged offence of causing death of the deceased by him. 13. PW 5, PW 6 and PW 10 appeared at the place of occurrence immediately after the occurrence and they are not found to have implicated the accused-respondent No. 1 with the commission of the alleged offence. Their evidence only reveals that the deceased was found dead in the house, which was burnt into ashes by fire. They are also not heard saying, to pointed queries, that there were any difference between the deceased and the accused-respondent No. 1, at least, to justify the circumstances leading to the cause of death of the deceased. 14. PW 11 together with PW 4 was supposed to settle the disputes between the deceased and the accused-respondent No. 1, as found from the evidence of the informant/(PW 9). As stated above, PW 4 and PW 11 were declared hostile by the prosecution. Therefore, the evidence led by PW 9/informant, who is the father of the deceased, is not found corroborated by the PW 4 and PW 11, rather, they are found contradicting his evidence on material particulars. They are not found, as stated above, implicating the accused-respondent No. 1 with the commission of the offences alleged. 15. PW 12 and PW 13 are also declared hostile by the prosecution and were subjected to cross-examination by the prosecution, although nothing could be elicited from their cross-examination by the prosecution suggesting, even remotely, that the accused-respondent No. 1 is responsible for the death of the deceased in any manner. 15. PW 12 and PW 13 are also declared hostile by the prosecution and were subjected to cross-examination by the prosecution, although nothing could be elicited from their cross-examination by the prosecution suggesting, even remotely, that the accused-respondent No. 1 is responsible for the death of the deceased in any manner. Rather, the evidence is found to be absolving the accused-respondent No. 1. 16. The evidence of PW 7, who is the paternal aunt of the deceased, is that she was informed about the occurrence and cause of death of the deceased by PW 9/informant, the father of the deceased. However, on careful examination of evidence of PW 9, it does not appear that he had reported the cause of death of the deceased to PW 7 and as such, the evidence of PW 7 is not supported by the evidence of PW 9. Therefore, the evidence of PW 7 remains a piece of hearsay evidence and unworthy of reliance. 17. On the other hand, the evidence of the doctor, who performed the post mortem examination, makes it clearly appear that he found no other injuries except burn injuries. Had there been any other mark of injuries except bum injuries, it could have brought forth some other angle with regard to the cause of death of the deceased. 18. What is important in this case is that as per the FIR, the deceased was murdered by the accused-respondent No. 1 for failure to meet the demand of dowry of 5 tolas of gold ornaments, coloured TV and cash amount of Rs. 50,000/-. PW 9 stated in his evidence that he had given 5 tolas of gold to the accused-respondent No. 1 through one Sanjay Das, but this Sanjay Das is not examined by the prosecution to substantiate the fact of giving 5 tolas of gold to the accused-respondent No. 1. There is no evidence led by any of the witnesses, examined by the prosecution, that there was any demand made by the accused-respondent No. 1 for any dowry and this fact, coupled with the fact that Sanjay Das is not examined to substantiate the fact of giving of 5 tolas of gold to the accused-respondent No. 1, makes it appear that had Sanjay Das been examined, he would not have supported the said fact, as alleged by the prosecution. 19. The learned senior counsel for the revision petitioner, Mr. 19. The learned senior counsel for the revision petitioner, Mr. HRA Choudhury, has referred to the letter written by the deceased (Ext. 6). I have examined the contents of the said letter. In the said letter, the deceased wrote that the accused-respondent No. 1 and the members of his family are like beasts. But, there is no allegation of demand of any kind in the said letter. That apart, the acceptability of the said Ext. 6, as evidence, is also put to question, on the ground that it is a photocopy only; therefore, that cannot be read in evidence being not the original. 20. The learned senior counsel for the accused-respondent No. 1 has referred to the decision of this Court in the case of Alim Uddin & Anr Vs. State of Assam & Anr, reported in 2017 (4) GLT 418 and particularly, paragraph 31 and 32 thereof, which runs as follows: "31. In Mustafa Shahadal Shaikh Vs. State of Maharashtra, reported in (2012) 11 SCC 397 , the Hon'ble Supreme Court while outlining the ingredients of Section 304B IPC held as under:- "9. 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 bums 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. 32. It was further held in Mustafa (supra), that 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. 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. It was also held that 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. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence." 21. This Court is mindful of the fact that to constitute an offence under Section 304(B) of the IPC, the fact that the deceased was subjected to cruelty or harassment in connection with demand of dowry, "soon before her death" must be established. However, the evidence in this case does not reveal presence of any of the said constituents in connection with the death of the deceased to hold that the accused-respondent No. 1 is guilty of an offence under Section 304(B) of the IPC. 22. In view of the discussions of the evidence on record, made above, it does not appear that the order recording acquittal of the accused-respondent No. 1, suffers from perversity. In the considered view of this Court, even two views are also not possible in this case. Even if, for the sake of argument, it is presumed that two views are possible, yet the view adopted by the learned trial court recording acquittal of the accused-respondent No. 1 is also possible view in the light of the evidence on record. Therefore, in view of the settled principle of law, the view adopted by the learned trial Court calls for no interference. The judgment of the learned trial Court is based on evidence on record. 23. Accordingly, the revision petition is dismissed. 24. Therefore, in view of the settled principle of law, the view adopted by the learned trial Court calls for no interference. The judgment of the learned trial Court is based on evidence on record. 23. Accordingly, the revision petition is dismissed. 24. Send down the LCR along with a copy of this judgment and order.