Research › Search › Judgment

Gauhati High Court · body

2019 DIGILAW 318 (GAU)

Ajit Shill v. State of Assam

2019-03-07

RUMI KUMARI PHUKAN

body2019
JUDGMENT : Rumi Kumari Phukan, J. 1. Heard Ms. B. Sharma, learned Amicus Curiae for the appellant and Mr. D. Das, learned Addl. P.P., Assam. 2. On 12.09.2005 one Shri Subal Chandra, brother of the deceased Monica Chandra lodged an FIR before Hojai P.S. alleging that his sister Monica Chandra was given marriage to the accused and on 11.09.2005 at 9 PM he was informed by his brother-in-law Shanti Bhowmic that Monica has committed suicide. After hearing the matter he went to the house of the accused on the next day morning and found that dead body of Monica was hanging in a guava tree. Immediately after the said incident he filed an FIR on 12.09.2005 alleging that soon after the marriage of Monica to the accused-person she was subjected to cruelty by her husband and other family members demanding money in dowry and due to inability to fulfil their demand she was tortured both physically and mentally. On the facts Hojai P.S. Case No. 278/2015 under Section 304B IPC was registered and the matter was investigated into accordingly. 3. During the course of investigation the I/O visited the place of occurrence, sent the dead body for post-mortem examination and after completion of the investigation submitted the charge-sheet against the accused-person under Section 304B IPC. 4. Since the case was triable by the Court of Sessions so the case was committed for trial to the Court of Sessions Judge, Nagaon. The accused faced the trial and denied the charge that was framed under Sections 304B/306 IPC. 5. To substantiate the charge the prosecution examined 6 witnesses and defence examined none. Statement of the accused was recorded u/s. 313 Cr.P.C.. Defence plea was of total denial. On the conclusion of the trial the accused-person was found guilty by the learned trial Court under Section 304B IPC and convicted him accordingly and sentenced to R.I. for 7 years. As against the said order of punishment the present appeal was preferred by the accused-appellant on the ground that there was no proper appreciation of evidence by the learned trial Court and there was nothing on record to show that the victim was subjected to any sort of cruelty prior of her death. That apart there are certain contradictions amongst the witnesses which have not been taken into consideration by the learned trial Court while arriving at the decision. 6. That apart there are certain contradictions amongst the witnesses which have not been taken into consideration by the learned trial Court while arriving at the decision. 6. It may be mentioned that as the appellant was not represented by the engaged counsel so Ms. Bijita Sharma was appointed as Amicus Curiae to conduct the case on behalf of the appellant. Accordingly, learned Amicus Curiae is heard on the matters on record. 7. In her argument Ms. B. Sharma has submitted that there is no specific evidence as regards to the dowry demand on the part of the accused-appellant and the medial evidence indicates that the deceased committed suicide and there was no injury on her person. On the other hand certain amount of contradiction of the witnesses here and there has also been pointed out to submit that the evidence on record is not enough to arrive at the conclusion of guilt of accused and the prosecution has not been able to prove the charge beyond all reasonable doubt. 8. Per contra, the learned counsel for the respondent has submitted that apart from the evidence of the witnesses there is strong circumstantial evidence on record to suggest that the victim was subjected to cruelty and torture by the accused-appellant during her life time and even soon before her death she was subjected to cruelty by her husband. That being so it is submitted that from the totality of the evidence on record and coupled with the fact that the accused-appellant being the husband of the deceased had not come up with any sort of explanation to show as to under what circumstances his wife died in the matrimonial home within the 7 years of the marriage, the Court can draw the adverse presumption under Section 113B of the Evidence Act. Accordingly, it has been submitted that the learned trial Court was appreciated by all the matters in evidence as well as law and which call for no interference. Due consideration has been given to the submission made by the parties and I have also gone through the evidence on record and the impugned judgment. 9. In the present case it is undisputed that the deceased was married to the accused-appellant and within 7 years of the marriage she died otherwise under a normal circumstance. Due consideration has been given to the submission made by the parties and I have also gone through the evidence on record and the impugned judgment. 9. In the present case it is undisputed that the deceased was married to the accused-appellant and within 7 years of the marriage she died otherwise under a normal circumstance. The deceased was found hanging in the guava tree backside the house of the accused-appellant and the accused-appellant was very much present in the house at the time of incident. But the accused except mere denial, no explanation has been offered for the death of his wife. In the parlance of law under Section 313 Cr.P.C. and even in normal human behaviour the husband is to explain the cause of death of his wife who resided in her matrimonial house along with her husband. One can expect and demand some sort of explanation from the husband being the legal guardian of his wife but the same is not found in the present case. Now the accused has been convicted under Section 304B IPC. The provision of 304B IPC reads as below: [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). (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]. 10. 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]. 10. Thus to attract the provision of section 304B of the IPC the main ingredient of the offence to be established is (a) that soon before the death of the deceased she was subjected to cruelty and harassment in connection with the demand of dowry, (b) the death of the deceased woman was caused by any burn or bodily injury or some other circumstance which was not normal, (c) such death occurs within seven years from the date of her marriage (d) that the victim was subjected to cruelty or harassment by her husband or any relative of her husband, (e) such cruelty or harassment should be for or in connection with demand of dowry, and (f) it should be established that such cruelty and harassment was made soon before her death; Kashmir Kaur v. State of Punjab, AIR 2013 SC 1039 . The court has to analyse the facts and circumstances as leading to death of the victim and decide if there is any proximate connection between the demand of dowry and act of cruelty or harassment and the death; Bansi Lal v. State of Haryana, (2011) 11 SCC 359 . To attract the provisions of section 304B, 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 and harassment "in connection with the demand of dowry"; Prema S. Rao v. Yadla Srinivasa Rao, AIR 2003 SC 11 . 11. As regards the expression soon before her death means interval between the cruelty and the death should not be so remote and there must be a proximate live link between the two. 12. Now to prove an offence, there may be eye witness to such occurrence and sometimes circumstantial evidence. 11. As regards the expression soon before her death means interval between the cruelty and the death should not be so remote and there must be a proximate live link between the two. 12. Now to prove an offence, there may be eye witness to such occurrence and sometimes circumstantial evidence. The provision incorporated in 113B of the Evidence Act carries a presumption of law of guilt of committing the offence of dowry death by any person who has been proved to have subjected the women concerned, soon before her death, to cruelty or harassment for/or in connection with dowry, when a dowry death has occurred. Section 113B of the Evidence Act reads as follows: [113B. Presumption as to dowry death.- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had 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 304-B of Indian Penal Code (45 of 1860).] 13. Although presumption, is not conclusive but in every case, the presumption u/s. 113B of the Evidence Act to be raised and same can be rebutted by accused. The meaning and implication of the words "shall be presumed" is that it is a presumption of law, which the Court bound to raise. 14. Thus the purports of Section 113B of the Evidence Act in effect of substance is that, if a dowry death occurs, the husband or relative of her husband who subjected her to cruelty or harassment concerning the demand of dowry is legally presumed to be guilty. On proof of occurrence of dowry death, the burden shift on the accused to prove his innocence by rebuttal evidence. 15. Bearing in mind the above provision of law let us examine the evidence on record. The informant/the P.W. 1 in his evidence has stated that his sister Monica was given to marriage to Ajit Shill/the accused but since after the marriage the accused and his family members demanded money from her parental house. Due to inability to fulfil such demand, she was subjected to physical and mental torture by them. The informant/the P.W. 1 in his evidence has stated that his sister Monica was given to marriage to Ajit Shill/the accused but since after the marriage the accused and his family members demanded money from her parental house. Due to inability to fulfil such demand, she was subjected to physical and mental torture by them. He further deposed that before one week of the death of his sister she came to his house and told to the family members of her parents that her husband demanded 20,000/- and threatened to kill her if she fails to fulfil his demand. After one week of her return to the matrimonial home one day in the morning he was informed that his sister was found hanging in the house of the accused person. On reaching the house of the accused-person he saw that dead body of Monica hanging in a guava tree by the side of the pond inside the campus of house of the accused and there was mark of injury on his neck. Accordingly, he filed the FIR. 16. It reflects the testimony from the P.W. 1 that the victim was subjected to cruelty after the marriage with the accused-appellant. His evidence is also supported by the other witnesses. The PW 3 Gopal Nahar deposed that prior to few days of the incident he saw from his nearby house while accused assaulted, Monica in his house and thereafter he came to know that Monica has committed suicide. 17. In this context the evidence of PW 2 and PW 4 is very much crucial to throw the light over the prosecution case. In his evidence PW 2, Shiva Prashad Haluwa has stated that accused is his uncle who married Monica and his house is about half kilometre away from the house of the accused-person. On the day of occurrence at 9 O' Clock the accused appeared in his house and said that Monica is no more and thereafter accused took three glasses water in his house and then he went along with the accused and he saw the dead body of Monica inside the house of the accused-person lying on the ground. Showing the dead body of deceased Monica accused asked PW 2 "what to do". Then he replied "do as you like" and returned back to his house. Showing the dead body of deceased Monica accused asked PW 2 "what to do". Then he replied "do as you like" and returned back to his house. On the next day morning PW 2 went to the house of the accused and saw the dead body of Monica was hanging by a rope of the mosquito net in a guava tree and her legs was touching to the land. Similarly PW 4 Deban Nahar has stated that on the day of occurrence at about night the accused went to his house and called him and before opening the door the accused fled away. Thereafter Chitranjan Biswas came to his house and asked him about whereabouts of Monica. He along with Chitranjan Biswas searched Monica but could not trace so he returned back. On the next day morning he came to know that Monica committed suicide. When he went to the house of the accused he found that dead body of Monica hanging in a guava tree and touching the land. 18. PW 7 another neighbour, namely, Naba Bhowmic has also stated that there was frequent quarrel between the parties. Although he was declared hostile by the prosecution but his statement can be accepted to this extant. 19. So this set of evidence has indicated strongest complicity of the accused-person and it is more than enough to say that the accused was involved in the offence. Once the dead body which was lying inside the house of the accused at night was found hanging outside the house in a guava tree in the morning and in such backdrop the accused-person who was very much present with the scenario is supposed to explain under what circumstance his wife died but his silence is enough to suggest his complicity. He offered no explanation in his statement u/s. 313 Cr.P.C.., whereas accused has to offer plausible reply to the circumstance/evidence appeared against him. 20. Although the Medical Officer PW 5 has opined about the suicidal hanging but same cannot be accepted to be the proper assessment of the matter in view of overwhelming evidence on record and the entire facts and circumstances discussed above. The entire prosecution case cannot be discarded only because of the finding of the above. 21. 20. Although the Medical Officer PW 5 has opined about the suicidal hanging but same cannot be accepted to be the proper assessment of the matter in view of overwhelming evidence on record and the entire facts and circumstances discussed above. The entire prosecution case cannot be discarded only because of the finding of the above. 21. The evidence of PW 6 who is the sister of the accused has simply stated about the quarrel between the parties without narrating any facts as to why Monica committed suicide, is of no consequence. Further being a sister of the accused she will certainly not support the prosecution case in true manner. However, she has stated one aspect that there was quarrel between the parties over certain household matter. PW 7 and PW 8 has also stated about the constant quarrel between the parties which indicates bitter relation of parties. The evidence of P.W. 10 Shanti Ranjan Bhowmic also reveals that he knows about the fact that the accused-person forces his wife Monica to bring money from her house and Monica used to report such matter to him during her life time about such dowry demand. Later on he came to know that Monica committed suicide in her in-laws house. According to him and the villages it is not a case of suicide but Monica was killed and her dead body was hanged on a tree to show it to be a case of suicide. The evidence of P.W. 10 is very much crucial as he was told by the deceased about such torture and dowry demand by the accused-appellant prior to her death. 22. The evidence of P.W. 11 however is of little consequence who tried to save the accused by saying that on the day of occurrence the accused was with him at puja committee meeting. The P.W. 11 being the brother-in-law of the accused, has not divulge the real fact. The said witness was declared hostile by prosecution and his statement was confirmed by I.O./PW 12. The other witnesses P.W. 12/PW 13 and P.W. 14 are the I/O and Circle Officer who testified all about the investigation and of inquest report etc. 23. The P.W. 11 being the brother-in-law of the accused, has not divulge the real fact. The said witness was declared hostile by prosecution and his statement was confirmed by I.O./PW 12. The other witnesses P.W. 12/PW 13 and P.W. 14 are the I/O and Circle Officer who testified all about the investigation and of inquest report etc. 23. The statement of the PW 2 made under Section 164 Cr.P.C. has been proved by the PW 16 who is the Judicial Magistrate, 1st Class and he has proved the statement made by the said witness, which reflects that evidence of PW 2 remain constant that accused went to him to disclose about the death of his wife, who was lying dead inside his house and PW 2 found the dead body of deceased accordingly. 24. Thus from over all appreciation of the evidence it can be found that the victim Monica was subjected to mental and physical torture since after the marriage on the demand of dowry or other pretext also and same has been proved by her family members as well as the neighbours. It is found soon before her death she reported her brother about such dowry demand made by the accused husband with a threatening to kill her. So the ingredient of the offence that soon before her death Monica was subjected to cruelty has been proved by the evidence on record. 25. On the next it is apparent on the face of the record that the deceased died of unnatural circumstances. She was found dead in the house of the accused-appellant within the 7 years of the marriage and the accused gave no such explanation for the same. It can be held that all the ingredients of the offence under Section 304B IPC as mentioned above has been proved by prosecution by cogent and convincing evidence. All the witnesses have supported the case of the informant on every material aspect and in such type of marital offence, there cannot be eye-witness as such offence generally committed within the four corners of house. 26. Obviously the accused-appellant has failed to adduce any sort of evidence to rebut the legal presumption that has been created under the aforesaid provision. Burden of prove of innocence is more on the accused under Section 113B which is relatable to the offence under Section 304B. 26. Obviously the accused-appellant has failed to adduce any sort of evidence to rebut the legal presumption that has been created under the aforesaid provision. Burden of prove of innocence is more on the accused under Section 113B which is relatable to the offence under Section 304B. The legislature in its wisdom has created the legal presumption that Courts shall presume such death of a woman in connection with dowry demand. 27. The learned trial Court has rightly appreciated each and every aspect of the matter while arriving at the decision of the guilt of the accused-appellant and accordingly this Court is of the opinion that there is no scope to interfere into the findings of the learned trial Court. Appeal is devoid of merit hence dismissed. Return the LCR. Accused is accordingly directed to surrender before the trial Court within 2 (two) months from today, to serve the sentence. For the assistance rendered by the learned Amicus Curiae, Ms. B. Sarma, direct the State Legal Service Authority to provide remuneration of Rs. 7,000/- to her.