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2025 DIGILAW 737 (CAL)

Md. Riazuddin v. State of West Bengal

2025-10-28

RAI CHATTOPADHYAY

body2025
JUDGMENT : Rai Chattopadhyay, J. 1. The instant appeal is directed against a judgment and order dated January 29, 2010, of the Additional District and Sessions Judge, 1st Fast Track Court at Bichar Bhaban, Kolkata, in Sessions Trial No 2(1) of 2006. By dint of the said judgment and order the appellant has been found guilty of the offence under section 498A of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 2 and half years and pay a fine of Rs. 5000; in default of payment of fine as above he has been directed to suffer rigorous imprisonment for another 6 months. The appellant has been exonerated from the charge under section 304B of the Indian Penal Code, in the said judgment and order of the trial Court. 2. The appellant/convict has challenged the said judgment and order of the trial Court dated January 29, 2010 on the grounds inter alia that the Court failed to consider the evidence on record in its proper perspective and thereby has arrived at an erroneous conclusion against the appellant regarding proof of offence against him under section 498A of the Indian Penal Code; that the ingredients of offence under section 498A of the Indian Penal Code is not been proved to the standard of beyond all reasonable doubts as against the appellant by the prosecution and the Court has erred in appreciating such fact; that the fact that interested witnesses have deposed out of grudge and their evidence suffer from severe embellishments and improvements rendering that to be unbelievable – is also an aspect completely ignored by the Court while delivering judgment; that evidence of the neutral witnesses were ignored by the Court; that particularly in absence of any dying declaration, the allegation of torture meted out upon the deceased person by the appellant on demand of dowry as remained not proved in the trial – is also a vital aspect not taken into consideration by the trial Court while delivering the judgment. Hence, this appeal has been filed by the appellant/convict seeking redress that the said impugned judgment may be set aside, declaring the appellant as not guilty in the case. 3. However, at the time of hearing of the appeal, the appellant did not appear either personally or through any learned lawyer inspite of due service of administrative notice. Hence, this appeal has been filed by the appellant/convict seeking redress that the said impugned judgment may be set aside, declaring the appellant as not guilty in the case. 3. However, at the time of hearing of the appeal, the appellant did not appear either personally or through any learned lawyer inspite of due service of administrative notice. Several opportunities were granted to the appellant without any response to the same. The administrative notice served upon the appellant was returned with the remark that the appellant was not available at the address known. 4. Hence the Court has taken up this appeal for hearing in absence of the appellant. The State is represented. 5. A First Information Report dated April 13, 2006 has set the investigation and trial in motion. The brother of the deceased person is the informant who has lodged the said FIR contending inter alia that his pregnant sister [name withheld], who was married with the appellant/convict on June 24, 2004 has committed suicide on December 8, 2004. In her married life the deceased was said to have suffered severe mental and physical torture at the instance of the appellant. In the FIR it has also been mentioned that the appellant has been provided with a fully furnished residential unit, by the family of the bride, to live with his wife; that once his sister (now deceased) returned to her paternal house due to intolerable torture meted out by the appellant; that soon after her returning to her husband, the appellant started demanding a motorcycle; “several demands” were made by the appellant and has been provided by the complainant and his family; lastly after the victim became pregnant, the appellant has started questioning about the parentage of the child in womb. The informant has further written in the FIR that on December 8, 2004, he and his brother have been informed by the appellant that the deceased person had locked from inside and in spite of his making efforts to open the door, he has failed. Immediately thereafter the informant and his brothers rushed to the place and broke open the door. They found their sister to have been hanging from the ceiling fan. Immediately thereafter the informant and his brothers rushed to the place and broke open the door. They found their sister to have been hanging from the ceiling fan. The body was brought down from the hanging position by the informant himself and thereafter the informant being accompanied by the appellant took the dead body to the nursing home where, upon examination the doctor has declared the person as “brought dead”. 6. After submission of charge sheet, the trial started against the appellant/accused person with the framing of charges under sections 498A and 304B of the Indian Penal Code. 7. I have carefully gone through the evidence on record as well as the impugned judgment of the trial Court. The person has died within a period less than 6 months from the date of her marriage with the appellant. In view of the same and the evidence collected during investigation read with the FIR the appellant has been tried before the Court on the offences under sections 498A and 304B of the Indian Penal Code. 8. The trial Court in the judgment impugned as very elaborately and extensively dealt with the evidence of all the witnesses available on record. From threadbare discussion thereof the Court has come to the conclusion that there is enough direct and substantive evidence to bring home the allegation of torture meted out by the appellant upon the said deceased person and ask to bring home the charge against him for an offence under section 498A of the Indian Penal Code. While coming to the conclusion as above the Court has also considered the corroborative circumstantial evidence brought on record, which according to the Court as conclusively proved the guilt of the appellant in the trial so far as the offence under section 498A of the Indian Penal Code is concerned. Therefore, the Court’s finding that the prosecution has been able to prove that after marriage, the appellant has demanded dowry and committed torture upon the victim over such demand of dowry, is seen to be based on a predominantly strong platform of well marshalled evidence available on record. Therefore, the Court’s finding that the prosecution has been able to prove that after marriage, the appellant has demanded dowry and committed torture upon the victim over such demand of dowry, is seen to be based on a predominantly strong platform of well marshalled evidence available on record. Therefore, when this has been a specific finding of the trial Court upon due and proper consideration of evidence that there has been demand of dowry by the appellant and evidence showing commission of torture by him upon the victim for the same, there is hardly any scope for this appeal Court to interfere into such finding of the trial Court, which is otherwise a decision well-reasoned and backed with adequate and sufficient materials on record. 9. Hence, so far as finding of guilt of the appellant in the trial under section 498A of the Indian Penal Code is concerned, the same is hereby upheld by this Court and to that extent the impugned judgment deserves no interference by this Court. 10. Therefore, undoubtedly in this case it has been proved beyond all reasonable doubt that the appellant has meted out torture upon the victim on demand of dowry within a period of 6 months from the date of their marriage, driving the person to commit suicide. The said facts having been proved in this trial beyond all reasonable doubt, the only question remains as to why the appellant should not be held guilty of the other offence offence charged against him, that is under section 304B of the Indian Penal Code. 11. Let the said provision of law be quoted as hereunder, for the benefit of discussion: “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 purposes 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 purposes 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." 12. The trial Court as given enough emphasis on the words “soon before”, as appearing in the said provision of law, while coming to a finding that the evidence has not disclosed any torture to have been mated out by the appellant soon before her death. Hence the Court has found that the prosecution has not been able to prove the guilt of the accused person under section 304B of the Indian Penal Code. In this regard the trial Court has discussed as below: “ From the evidence of P.W. 9 we get that on 08.12.2004 at about 2.15 to 2.45 p.m. while he was engaged in checking the collapsible gate on the second floor due to his query, Riajuddin came out of his flat along with his wife. On the same date Shabnam committed suicide at about 3 p.m. So, the picture that we get that the couple on 08.12.2004 went to the Gynecologist and after treatment by the Gynecologist, the said couple returned to their flat. They were seen together without any apparent hostility at that moment and then Shabnam committed suicide. In case of Section 304B, the vital point is that soon before the death the victim should be subjected to torture. In our case the couple went to the Gynecologist together. Had there been any immediate quarrel and torture at that time, it is certainly Shabnam did not accompany Riajuddin to the Gynecologist. Again after their return, as per the version of P.W. 9 the couple were seen together and they at that time also were not looking hostile to each other. So, from this event we may conclude that soon before her death, Shabnam was not subjected to cruelty. Therefore, the main ingredients of Section 304B namely ("soon before death") is absent in our case and thus the charge under Section 304B fails. 13. So, from this event we may conclude that soon before her death, Shabnam was not subjected to cruelty. Therefore, the main ingredients of Section 304B namely ("soon before death") is absent in our case and thus the charge under Section 304B fails. 13. This Court is constrained to hold that while interpreting the words appearing in section 304B IPC, in the context of the available evidence on record, the trial Court has erred and misdirected itself to allow a very narrow, limited and restricted meaning and expression to the words “soon before”, as appearing therein. Whereas the laws settled in this regard is otherwise that the said words appearing under the said provision of law are required to be understood to be a relative and flexible timeframe in the context of the specific facts and circumstances of the case, typically weighing the approximate and live link between cruelty/harassment and death. The expression signifies a proximate or live link between the cruelty or harassment inflicted upon the woman in connection with dowry demand and her subsequent death, without requiring immediate or very recent occurrence. It is a well settled proposition that “soon before” is a relative term and cannot be strictly defined as “immediately before”. 14. In all dowry death cases the standard of appreciation of evidence has to be in the light of the provisions contained in Section 113A of the Evidence Act. It is relevant to note that when an offence under Section 304B of I.P.C is alleged, the same has a proximate nexus with Section 113B of the Evidence Act, 1872 which reads as follows: “Section 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 304B of the Indian Penal Code (45 of 1860).” 15. 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. Section 113B of the Evidence Act in the later part mandates drawing of presumptions that the husband or relative of the husband of the victim girl have caused her death and this presumption of dowry death corresponds to presumption as to dowry death envisaged in Section 113B of the Evidence Act, 1872. Section 304B(1) of the I.P.C, 1860 has two limbs. First limb defines dowry death and the second limb deals with the legal consequence of occurrence of dowry death namely, that the husband or such other relative of the husband who soon before the death of the lady was found to have subjected the lady to cruelty or harassment shall conclusively be held to be guilty of the offence of dowry death. In the decision reported in V.K.Mishra v. State of Uttarakhand [ AIR 2015 SC 3043 ] , a 3 Judge Bench of the Apex Court while dealing with Section 304B of IPC and 113B of the Evidence Act, inter alia, held, after referring another decision Shersing alias Partapa v. State of Haryana [ AIR 2015 SC 980 ], that the word `shown' instead of `proved' in Section 304B of I.P.C indicates that the onus cast on the prosecution would stand satisfied on the anvil of a mere preponderance of probability. In other words, `shown' would have to be read upon to mean `proved', but only to the extent of preponderance of probability. It was held further that in a case of demand for dowry, independent and direct evidence with regard to the occurrence is ordinarily not available. That is why the legislature had introduced Section 113A and 113B in the Evidence Act by permitting presumptions to be raised in certain circumstances. 16. In the decision reported in [2015 SC 1359], Rajinder Singh v. State of Punjab , the Apex Court held that “soon before” in Section 304B, is not synonymous with “immediately before”. The same proposition is laid by the Apex Court in another decision reported in [ AIR 2021 SC 2627 ] Satbir Singh & anr. v. State of Haryana. 17. In the decision reported in [2015 SC 1359], Rajinder Singh v. State of Punjab , the Apex Court held that “soon before” in Section 304B, is not synonymous with “immediately before”. The same proposition is laid by the Apex Court in another decision reported in [ AIR 2021 SC 2627 ] Satbir Singh & anr. v. State of Haryana. 17. In another decision Baldev Singh v. State of Punjab [AIR 2009 SC 913] , the expression “soon before her death” used in the substantive section of 304B of I.P.C and Section 113B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression “soon before” is not defined. A reference to expression “soon before” in Section 114 illustration (a) of the Evidence Act is relevant. It lays down that a man who is in the possession of goods “soon after theft” is either the thief or has received the goods knowing the same to be stolen, unless he can account for his possession. The determination of the period which can come with the term `soon before' is left to be determined by the Courts depending upon facts and circumstances of each case. Those are to be considered in each case depending upon the distinguishable on facts and circumstances of each of those on the anvil of relative connection test and / or the proximity test between the concerned cruelty or harassment and the death in question. 18. Therefore, after having discussed the settled principles of law as above, the factual aspects as has transpired in the instant case should be assessed in the light of the settled principles of law as discussed. During the period of 6 months of their married life, the victim has been subjected to torture, so much so that has drove her to commit suicide - is the finding of fact by the trial Court, on the basis of which the trial Court has convicted the appellant for an offence under section 498A of IPC. 19. Evidence has shown that the consistent incidents of torture have happened throughout the married life of the victim/now deceased. Therefore, a pregnant lady, whose married life was undeniably of 6 months period, the proximate reason of her death should be considered as accumulation of all the incidents of torture, meted out to her over the said entire period of time. Evidence has shown that the consistent incidents of torture have happened throughout the married life of the victim/now deceased. Therefore, a pregnant lady, whose married life was undeniably of 6 months period, the proximate reason of her death should be considered as accumulation of all the incidents of torture, meted out to her over the said entire period of time. In her case the Court cannot only search for an immediate reason, a few hours before her death, which might have caused her to commit suicide. Imposing a limited and constrained interpretation on the statutory provision, considering the specific facts and circumstances and the entire backdrop of this case would undermine the pursuit of justice and in itself contravene established legal principles and norms. A pragmatic and reasonable approach is warranted, considering the totality of circumstances, conduct an impact on the victim. The focus is on establishing that the cruelty or harassment was a counting cause or had a significant impact on the victim, leading up to her death. Substantive, direct and also corroborative evidences have proved beyond scope of any reasonable doubt the incidents of the victim crying each day in a regular manner, such sounds being made circumvent with mechanical music player as the neighbours intervened, victim having disclosed the facts of torture to her relative and friends, she having left the company of the appellant, she having returned back thereafter but only to face the further demand of motor cycle, demands of money by the appellant having been satisfied by the complainant from time to time and further more raising doubt and accusation about the parentage of the child in womb – all having been caused by the appellant. Consequently, the Court's search for an incident occurring within a few hours preceding the victim's death would constitute a gross disregard for all the crucial evidence and facts proved in the case, as previously stated. This is an unacceptable situation when chronology of facts proved in the case is considered in the context of the settled law as discussed above. 20. On the contrary, this Court is of the firm view that the facts of torture meted out by the appellant upon the victim/now deceased, which have been proved in the case beyond scope of any reasonable doubt warrants those to be considered cumulatively as the proximate cause of suicide committed by the said victim. 20. On the contrary, this Court is of the firm view that the facts of torture meted out by the appellant upon the victim/now deceased, which have been proved in the case beyond scope of any reasonable doubt warrants those to be considered cumulatively as the proximate cause of suicide committed by the said victim. Therefore the trial Court should have justifiably held the appellant guilty of the offence under section 304B of the Indian Penal Code, for the offence of dowry death of his wife/ the said deceased person. On this count and to that extent, the Court finds the impugned judgment dated January 29, 2010, to be improper, illegal and liable to be set aside. 21. Hence, for all the reasons as discussed above the instant appeal is dismissed. The impugned judgment and order dated January 29, 2010, of the Additional District and Sessions Judge, 1st Fast Track Court at Kolkata, in Sessions Trial No 2(1) of 2006, is upheld to the extent that the present appellant is found guilty of the offence under section 498A of the Indian Penal Code. The sentence allowed to the appellant is also upheld. 22. However, decision of the trial Court as regards the charge against the appellant under section 304B of the IPC, is set aside. The Sessions Trial No 2(1) of 2006 is remanded back to the Additional District and Sessions Judge, 1 st Fast Track Court at Bichar Bhaban, Kolkata, for a decision afresh, as regards the charge against the appellant under section 304B of the IPC. In doing so, the trial Court shall take into consideration additional evidence if any produced by the prosecution or the defence, along with the evidence available on record. The trial Court shall pass a judgment which shall form part and parcel of the judgment dated January 29, 2010, after setting aside of the portion thereof and on remand. Bail granted to appellant if any, is hereby cancelled and the appellant be immediately taken into custody to serve the sentence already imposed by the Court on January 29, 2010. Be it mentioned that in case the trial Court finds the appellant guilty of the offence under section 304B IPC and sentences him accordingly, the period thereof shall be adjusted, by the period of custody already undergone by the appellant and for the rest period if any, both the sentences shall run concurrently. Be it mentioned that in case the trial Court finds the appellant guilty of the offence under section 304B IPC and sentences him accordingly, the period thereof shall be adjusted, by the period of custody already undergone by the appellant and for the rest period if any, both the sentences shall run concurrently. Let the TCR be immediately returned. The trial Court is requested to conclude the entire exercise as directed, with expedition, preferably within a period of 6 months from the date of receipt of the TCR. The department shall provide a certified copy of this judgment to the appellant immediately and free of cost. 23. The appeal No. CRA 186 of 2010 stands dismissed. The impugned judgment of the Additional District and Sessions Judge, 1st Fast Track Court at Bichar Bhaban, Kolkata dated January 29, 2010 stands partly allowed. The Sessions Trial Case No. 2(1) of 2006 is remanded back with the directions as above. 24. Urgent certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.