IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present: The Hon’ble Justice Nadira Patherya
And
The Hon’ble Justice Amitabha Chatterjee
CRA No. 628 of 2013
In the matter of
Satyen Barman alias Satyendranath Barman ………Appellant/Petitioner (in jail)
Versus
The State of West Bengal …………………………………Respondents
With
For the Appellant : Mr. Ajoy Ray
: Mr. Ankur Jain
For the plaintiffs/
Respondents : Mr. Madhusudan Sur
: Mr. Pratik Bose
: Mr. Manoranjan Mahato
Heard on : 23.11.2016, 24.11.2016,
25.11.2016, 28.11.2016,
Judgment on : 05th July, 2017
Amitabha Chatterjee, J. :-
This appeal has been filed against the judgement and order dated
10.6.2013 and 11.6.2013 passed by Sri Tapan Kr. Mondal, Ld. Additional
Sessions Judge, F.T.C.-1 Uttar Dinajpur, Raiganj in Sessions Trial No.
15/2008 arising out of Sessions Case No. 73/2007 convicting the appellant
under Section 498(A) / 304 B of the Indian Penal Code.
The prosecution case to put in brief is that:-
1. Naresh Barman filed a written complaint before the Officer-in-Charge,
Hemtabad Police Station Hemtabad Uttar Dinajpur to the effect that
his niece Hema Barman daughter of Anadi Barman of Village
Kochimuha was given in marriage with Sri Satyendranath Barman
son of Nakul Barman of Hemtabad Police of Village Mahajanbari on
16th Ashar, 1409 B.S. At the time of marriage his brother Anadi
Barman, as per the demand of son in law and his family gave one
motor cycle, golden and silver ornaments and some other materials as
dowry. But his brother did not give Rs. 10,000/- at the time of
marriage and promised to give the amount within 5/6 months. After
marriage Hema Barman went to her matrimonial house with her
husband. After few days of marriage Hema Barman returned to her
paternal house and asked her father to pay Rs. 10,000/- immediately
as the members of the matrimonial house were torturing her. After
one month of marriage the father in law demanded the amount of Rs.
10,000/-. In the month of Shrabon the de facto complainant and his
brother Anadi Barman who happens to be the father of victim Hema
and many other people tried to convince the in-laws to wait for 5/6
months and they accepted their proposal.
Further case of the prosecution is that on last Thursday, 2nd
Ashwin, corresponding to English 19.9.2002 the son-in-law of Anadi
Barman along with victim Hema Barman came to their house and
said that before Puja the amount of Rs. 10,000/- should be handed
over to them and to send her to the matrimonial house otherwise she
will live there. The victim Hema said to that she would not go to her
matrimonial house without taking the amount. She further stated
that her husband, mother-in-law, father-in-law, sister-in-law and
brother-in-law tortured upon her for the said money. Thereafter, in
the evening of Saturday at about 7 P.M. Hema Barman took poison in
their house. The de facto complainant and others admitted her at
Raiganj Hospital for treatment but at night she expired. The specific
case of the prosecution is that victim Hema Barman committed
suicide due to demand of money by the members of her matrimonial
home.
The F.I.R. was lodged by Naresh Barman P.W.6 with Hemtabad
Police Station regarding the incident on 22.9.2002 alleging torture
and harassment meted out to the deceased on account of demand of
dowry which led her to commit suicide by consuming some poisonous
substance. On the basis of the said complaint Hemtabad Police
registered F.I.R. No. 74/2002 dated 22.9.2007 for the offence
punishable under Sections 498A / 304B of the Indian Penal Code.
After completion of investigation charge sheet under Section 498A and
304B read with Section 4 of Dowry Prohibition Act, was submitted
against the accused persons.
Thereafter, the case was committed to the court of Ld. Sessions
Judge, Uttar Dinajpur at Raiganj and subsequently the ld. Sessions
Judge, Uttar Dinajpur at Raiganj transferred the case vide his order
no. 2 dated 19.9.2007 to the court of ld. Additional Sessions Judge,
FTC-I, Uttar Dinajpur at Raiganj for trial.
On 19.2.2008 charges were framed against all the six accused
persons namely, 1) Satyendra Nath Barman, 2) Dwipen Barman, 3)
Amaresh Barman, 4) Smt. Panchabati Barman, 5) Smt. Abala Barman
and 6) Nakul Barman for the offence under Sections 498A/304B/34
of the Indian Penal Code, 1860 read with Section 4 of the Dowry
Prohibition Act, and the contents of the charges framed were read
over and explained to them in Bengali to which they pleaded not
guilty by saying that “Amra Nirdosh” and claimed to be tried. The Ld.
Additional Sessions Judge F.T.C.-I Uttar Dinajpur, Raiganj on
consideration of the oral and documentary evidence so also the
Section 313 statement acquitted the accused persons namely, 1)
Dwipen Barman, 2) Amaresh Barman 3) Panchabati Barman 4) Smt.
Abala Barman and 5) Nakul Barman, relations of the accused
husband Satyendra Nath Barman, but convicted the appellant
Satyendra Nath Barman for commission of offence under Section
498A and 304B of the Indian Penal Code and sentenced him to suffer
Simple Imprisonment for 02 years and also to pay fine of Rs. 1,000/-
only I.D. to suffer simple imprisonment for another 02 months for
committing the offence under Section 498A of the Indian Penal Code,
1860 and also sentenced him to suffer rigorous imprisonment for 10
years for committing the offence under Section 304B of the Indian
Penal Code, 1860. The Ld. Trial Court did not find the appellant guilty
for the offence under Section 4 of the Dowry Prohibition Act, and
acquitted him of the said offence in view of provision under Section
235(1) of Cr. P.C., 1973.
Being aggrieved the appellant Satyendra Nath Barman filed
Criminal Appeal No. 628/2013 before the High Court for setting aside
the judgement and order of conviction and sentence dated 10.6.2013
and 11.6.2013 passed by the Ld. Trial Court.
Heard Mr. Ajay Ray, Ld. Senior Counsel for the appellant and Sri
Madhusudan Sur Ld. Senior Counsel for the respondent States. The
Ld. Advocate for the appellant submitted that the incident took place
on 21.9.2002 and F.I.R was lodged by one Naresh Barman the elder
brother of the father of the victim on 22.9.2002. The case was
instituted initially against the appellant Satyendra Nath Barman
along with his relations namely 1) Dwipen Barman, 2) Amaresh
Barman 3) Panchabati Barman 4) Smt. Abala Barman and 5) Nakul
Barman but except for the appellant all the other accused persons
implicated in the instant case were acquitted. It is further submitted
by the Ld. Counsel that the incident took place at the parents house
of the victim and the prosecution has miserably failed to explain the
reason as to why the victim took poison. In fact, the prosecution could
not prove the incident, that there was sufficient evidence of cruelty or
harassment meted out to the victim by the accused Satyendra Nath
Barman to his wife in connection with demand of dowry soon before
her death. It is further submitted that in case of allegation under
Section 498A of the Indian Penal Code the prosecution must prove
that the wife of Satyendra Nath Barman was subjected to cruelty by
her husband and his relatives. According to Ld. Counsel there is no
such material in the four corners of the evidence on record which
amounts to cruelty and harassment. In the instant case out of the
twelve witnesses examined P.W.1-Bokul Das, P.W.2- Sumodh
Chandra Barman, P.W.3- Raj Kumar Barman did not support the
prosecution story. And the Ld. Trial Court based the conviction
mainly on the basis of evidence of P.W.4 namely, Trishna Barman,
mother of victim Hema, P.W.6 namely Naresh Barman who happens
to be the uncle of victim Hema and P.W.8 Anadi Barman who is none
but the father of victim Hema. All of them are near relation of victim
Hema and the conviction should not be based on the depositions of
these three witnesses who could be safely termed as interested
witnesses. It is further argued by the Ld. Counsel that though P.W.4
in her deposition before the court stated that Ramjan Ali, Fani
Barman, Obin Barman and some other adjoining neighbors were well
acquainted with the matter of dispute of her married daughter but
none of them has been examined in the instant case. More so, the
evidence of P.W.4, P.W.6 and P.W.8 are full of contradictions and as
such could not be relied on. P.W.12 Paritosh Singha S.I. of Police is
the I.O. of this case and during his cross-examination he specifically
admitted that Trishna Barman (P.W.4) in her statement stated to him
that “I did not know that son in law what said to my daughter that
Hema died. Before death she did not said anything to ourselves”.
P.W.4 had also stated in her statement to P.W.12 that “my son in
law came to our house on 26th Bhadra and said that he will come on
the month of Ashwin dated 4/5 and took return Hema”. Therefore, the
evidence of P.W.4 should be discarded. The Ld. Counsel further
argued that although the visera of the deceased was preserved for
chemical examination and was sent to F.S.L. Kolkata yet no report of
examination of visera is produced in the instant case. And therefore,
taking all these facts into consideration the judgment and order of
conviction passed by the Ld. Additional Sessions Judge should be set
aside and the appellant should be acquitted on the ground of benefit
of doubt.
On the other hand the Ld. Counsel for the State contended that
the prosecution case is proved beyond the shadow of any reasonable
doubt. It has been sufficiently proved that the victim Hema was given
in marriage with the accused Satyen Barman alias Satyendranath
Barman and at the time of their marriage one motor cycle, gold and
silver ornaments and some other materials were given to the
appellant. It was also agreed by the father of the deceased namely,
Anadi Barman to give him a sum of Rs. 10,000/- within 5/6 months
of their marriage. Immediately after the marriage Hema Barman was
subjected to cruelty and harassment by Satyen Barman alias
Satyendra Nath Barman for demand of Rs. 10,000/- and as the
aforesaid amount could not be given to him Satyendra Nath Barman
inflicted torture upon her and therefore, Hema was forced to commit
suicide in her paternal house by taking poison. The aforesaid suicide
took place just after 02 months of marriage and as such the
presumption under Section 113B of the Evidence Act is attracted. The
case is based on circumstantial evidence and each circumstance
linked, therefore, case has been proved and judgement be not set-
aside.
Before considering the prosecution case, as well as the defence case,
it is desirable to extract the relevant provisions of Section 304B which
relates to dowry death.
“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.
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.”
In order to convict an accused for the offence punishable under
Section 304B Indian Penal Code, the following essentials must be
satisfied
I) the death of a woman must have been caused by burns 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. If the
abovementioned ingredients are attracted in view of the special
provision, the court shall presume and it shall record such fact as
proved unless and until it is disproved by the accused. However, it is
open to the accused to adduce such evidence for disproving such
conclusive presumption as the burden is unmistakably on him to do
so and he can discharge such burden by getting an answer through
cross-examination of the prosecution witnesses or by adducing
evidence on the defence side.
Section 113B of the Evidence Act, 1872 speaks about presumption as
to dowry death which reads as under.
“113B presumption of dowry death-
1) 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 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.
The prosecution under Section 304B Indian Penal Code cannot escape
from the burden of proof that the harassment or cruelty was related to
the demand for dowry and such was caused “soon before her death”.
In view of the explanation to the said Section the word ‘dowry’ has to
be understood as defined in Section 2 of the Dowry Prohibition Act,
1961which reads as under:
2) Definition of dowry: In this Act “dowry” means any
property or valuable security given or agreed to be given
either directly or indirectly-
a) By one party to a marriage to the other party to the
marriage; or
b) By the parent of either party to a marriage or by any
other person, to either party to the marriage or to any
other person ,
at or before or any time after the marriage in connection with the
marriage of the said parties, but does not include dower or mahr in the
case of persons to whom the Muslim Personal Law (Shariat) applies”.
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 or harassment “for,
or in connection with the demand for dowry”. The expression “soon
before her death”, used in Section 304B Indian Penal Code and Section
113B of the Evidence Act has been included to satisfy the proximity test.
In fact, Ld. Counsel appearing for the appellant submitted that there is
no proximity between the alleged demand of dowry and harassment.
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.
The Hon’ble Apex Court in Banshi Lal vs. State of Haryana
reported in AIR 2011 Supreme Court 691 paras 16 to 18 held “that while
considering the case under Section 304B cruelty has to be proved during
the close proximity of the time of death and it should be continuous and
such continuous harassment, physical or mental, by the accused should
make life of the deceased miserable which may force her to commit
suicide. It was further held by the Hon’ble Supreme Court that where the
cruelty has been proved during the close proximity of the time of death
then the provision of Section 113B of the Indian Evidence Act, 1872
providing for presumption that the accused is responsible for dowry
death, is to be pressed in service. In paras 19 and 20 of the judgement
the Hon’ble Supreme Court has further held as follows;
“It may be mentioned herein that the legislature in its wisdom has
used the word ‘shall’ thus making a mandatory application on the part of
the court to presume that death had been committed by the person who
had subjected her to cruelty or harassment in connection with any
demand of dowry. It is unlike the provisions of Section 113A of the
Evidence Act where a discretion has been conferred upon the court
wherein it had been provided that court may presume abatement of
suicide by a married woman. Therefore, in view of the above, onus lies on
the accused to rebut the presumption and in case of Section 113B
relatable to Section 304B Indian Penal Code, the onus to prove shifts
exclusively and heavily on the accused. The only requirements are that
death of a woman has been caused by means other than any natural
circumstances; that death has been caused or occurred within seven
years of her marriage; and such woman had been subjected to cruelty or
harassment by her husband or any relative of her husband in connection
with any demand of dowry.
Therefore, in case the essential ingredients of such death have
been established by the prosecution, it is the duty of the court to raise a
presumption that the accused has caused the dowry death. It may also
be pertinent to mention herein that the expression “soon before her
death” has not been defined in either of the statutes. Therefore, in each
case, the court has to analyse the facts and circumstances leading to the
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”.
The Hon’ble Supreme Court in Mustafa S. Shaikh vs. State of
Maharashtra reported in AIR 2013 Supreme Court 851 paras 6 and 8
held as under:-
“in order to convict an accused for the offence punishable under
Section 304B Indian Penal Code the following essentials must be
satisfied.
(I) The death of a woman must have been caused
by burns 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. If the
above-mentioned ingredients are attracted in view of the special
provision, the court shall presume and it shall record such facts as
proved unless and until it is disproved by the accused. However, it is
open to the accused to adduce such evidence for disproving such
compulsory presumption as the burden is unmistakably on him to do so
and he can discharge such burden by getting an answer through cross-
examination of the prosecution witnesses or by adducing evidence on the
defence side”.
With these principles in mind let us analyse the evidence led by
the prosecution.
In the case on hand the prosecution has examined as many as
twelve witnesses in all in order to substantiate the allegations leveled
against the accused appellant. Out of the twelve witnesses P.W.1 Bokul
Das, P.W.2 Sumodh Chandra Barman and P.W.3 Rajkumar Barman
were declared hostile. They were cross-examined but unfortunately they
did not support the allegation leveled against the appellant. However,
from the evidence of the P.W.1, P.W.2, and P.W.3 it is crystal clear that
Satyendranath Barman the appellant was married to Hema at
Kuchimora under P.S. Raiganj. It is stated by these witnesses that the
marriage was held on the 16th day of Ashar in the year 2002. The
aforesaid three witnesses also admitted in their respective evidence that
Hema subsequently died at her father’s house by taking poison. Though
these three witnesses did not support the prosecution case fully but due
to their non-cooperation the credibility of the evidence of other witnesses
cannot be disbelieved. P.W.6 is the F.I.R. maker and in the F.I.R. he has
stated that at the time of marriage of Hema the brother of P.W.6 who
happens to be the father of Hema gave one motorcycle, gold and silver
ornaments and other materials as dowry, as per the demand of his son-
in-law and his family. It is further stated in the F.I.R. that the brother of
P.W.6 i.e. the father of the victim could not give Rs. 10,000/- at the time
of marriage and promised to give the amount within 5/6 months. P.W.6
in his evidence categorically stated that the marriage of the victim girl
was solemnized with the appellant on 16th Ashar 1409B.S. Anadi
Barman P.W.8, father of the victim girl failed to pay the said money and
as the said money was not given Hema Barman was forcibly kept in their
house and it was stated by the appellant that if the said amount of Rs.
10,000/- was not given he would not take back Hema Barman. The
appellant also claimed the said amount of Rs. 10,000/- prior to puja. On
4th Ashwin, 1409 B.S. Hema Barman committed suicide by taking
poison. She was admitted to Raiganj District Hospital thereafter he
lodged the written complaint at Raiganj P.S. During his cross-
examination P.W.6 denied the suggestion put to him that there was no
talk about the payment of Rs. 10,000/- within 4/5 months of the
marriage. He also denied that the appellant had not stated that if the
amount of Rs. 10,000/- was not paid he would not take back his wife.
Further he denied the suggestion that the accused persons had never
inflicted any torture upon his niece Hema in connection with payment of
Rs. 10,000/-.
P.W.4 Trishna Barman is the mother of the victim. She also stated
that her daughter Hema was married with the appellant son of Nakul
Barman of Mahajanbari under P.S. Hemtabad on 16th Day of Ashar,
1409 B.S. as per Hindu Rites and Customs. At the time of marriage they
gifted Hema two bhori gold and 10 bhori silver and one motorcycle to the
appellant besides utensils, bedding and clothing but they failed to meet
the demand of Rs. 10,000/- made by the appellant and his family. They
had agreed to handover the sum of Rs. 10,000/- to the appellant within
six months of the marriage. Hema was taken to her parental home by the
appellant at Kochimuha on 28th day of Shraban, 1409 B.S. Then the
appellant again came to their house and took Hema to her matrimonial
home. In her matrimonial home the victim girl was again subjected to
torture both physically and mentally by her husband and other in laws
for Rs. 10,000/-. It was a Thursday when the victim girl was taken to her
parental home and one day after that day i.e. on Saturday at about 7:00
P.M. took poison in their house. She was taken to the Raiganj District
Hospital where she died. P.W.4 also stated in her evidence that accused
persons used to put continuous torture upon Hema while she was
residing with them, for payment of Rs. 10,000/- to them and in this way
she was subjected to physical torture by accused persons.
P.W.8 Anadi Barman is the father of the victim Hema Barman. He
stated in his evidence that his daughter’s marriage was solemnized at
Village Mhajanpara, P.S.-Hemtabad, with the appellant on 16th Day of
Ashar, 1409 B.S. as per Hindu Rites and Customs. In the said marriage
they had given one motorcycle, gold ornaments of two bhori, and utensils
of bell metal. It was settled that they would pay Rs. 10,000/- in cash but
they failed to pay the said money. After marriage his daughter went to
her matrimonial home. His daughter and son-in-law came to their house
on the occasion of Astamongala. But thereafter they started to create
problems on the matter of payment of Rs. 10,000/- which was due.
P.W.8 requested the accused persons for six months time for making
payment of the said cash. Within one month of marriage his daughter
came back to their house and asked them to make payment of Rs.
10,000/-. Then his daughter was taken back but after few days his
daughter was again sent back to their house. At that time his daughter
told them to make immediate payment of the said cash amount to the
accused persons. This was in the month of Bhadra. On 2nd Ashwin of the
same year his daughter consumed poison. P.W.8 categorically stated in
his evidence that his daughter had consumed poison as he failed to pay
the said cash amount of Rs. 10,000/-.
P.W.5 Dr. Radheshyam Mahato stated in his evidence that on
22.9.2002 he was posted at Raiganj District Hospital as Medical Officer.
On that date over the dead body of the victim girl post mortem was done
by him as Medical Officer of Raiganj District Hospital. No external injury
was found over the dead body but in her stomach 50c.c. whitish liquid
was found, and smell of organ phosphorus was coming out. In his
opinion the victim girl died out of poisoning. P.W.5 preserved the viscera
and it was sent for FSL, to determine cause of death but no report was
received as placed before P.W.5 for the final report. The post mortem
report has been recorded in prescribed form by P.W.5 in his own
handwriting and he signed on it. The post mortem report is marked as
Exhibit-1 in the instant case.
Thus, on careful scrutiny of the evidence of P.W.4, P.W.6 and
P.W.8 we find that it has been clearly established that the victim girl was
given in marriage with the appellant on 16th Ashar, 1409 B.S. as per
Hindu Rights and Customs and at the time of marriage they gifted two
bhori gold and 10 bhori silver and one Motor cycle to the appellant along
with utensils, bedding and clothing but they failed to meet the demand of
Rs. 10,000/- immediately. They promised to pay the said sum within six
months from the date of marriage. After reaching her matrimonial home
the victim was subjected to torture both physically and mentally by her
husband and other-in-laws of her matrimonial home over the demand of
Rs. 10,000/-. The victim girl was taken to her parental house lastly by
their son-in-law the appellant on Thursday and one day after that day
i.e. on Saturday the victim girl took poison at about 7:00 P.M.. So it is
crystal clear that the victim girl committed suicide within a period of two
months and a few days from the time of her marriage.
The Ld. Advocate appearing for the appellant drew our attention to
the cross-examination of P.W.12 Paritosh Singha, I.O. and stated that
during his cross-examination, P.W.12 admitted that P.W. 4 Trishna
Barman in her statement given to P.W.12 had stated to him that she did
not know what was said by her son-in-law to her daughter which led
Hema to commit suicide P.W.4 also stated before death the victim girl did
not say anything to P.W.4 and others. P.W.4 further stated in her
statement to P.W.12 that her son-in-law came to their house on 26th
Bhadra and said that he would come in the month of Ashwin to take the
victim girl. P.W. 12 also admitted during his cross-examination that
P.W.4 Trishna Barman had not stated to him that her daughter was
subjected to torture at her in law’s house for demand of Rs. 10,000/-.
P.W.12 further admitted that P.W.4 did not make any statement to him
that the victim girl was deprived of food or clothes and she was under
pressure over demand of Rs. 10,000/-. On scrutiny of the evidence of the
P.W.4 as well as P.W.12 certain discrepancies and contradictions exists.
The Ld. Advocate for the appellant also submitted that only on
evidence in court the accused person should not be found guilty of any
offence either under Section 498A or under Section 304B of the I.P.C.
Although submitted by the Ld. Advocate that the nature of harassment
or of cruelty meted out to the victim girl is not clearly described in the
evidence of P.W.4, P.W.6, and P.W.8. But on careful consideration of the
evidence on record we are of the opinion that the involvement of the
accused appellant has been clearly established so far as the cruelty or
harassment on the ground of demand of dowry to the tune of Rs.
10,000/- is concerned. It has been duly proved that the marriage of the
victim girl took place on 1.7.2002 and she died on 21.9.2002 by taking
poison. Though there are some contradictions in the evidence of P.W.4
and P.W.12 but that is not sufficient to discharge the accused appellant
from being punished. In the instant case no defense witness has been
adduced on behalf of the appellant at the time of trial and at the time of
his examination under Section 313 of the Criminal Procedure Code the
accused appellant only pleaded that the allegation levelled against him
are false and he is innocent.
The key words under Section 113B of the Evidence Act, 1872 are
“shall presume” leaving no option with a court, but, to presume the
accused brought before it of causing a dowry death. However, the
redeeming factor of this provision is that the presumption is rebuttable.
Section 113B of the Act enables an accused to prove his innocence and
places a reverse onus of proof on him. In the case in hand the accused
failed to prove beyond all reasonable doubt that the victim died a natural
death. The presumption under Section 113B of the Act is mandatory may
be contrasted with Section 113A of the Act which was introduced
contemporaneously. Section 113A of the Act, dealing with the abatement
of suicide use the expression ‘may presume’. This being the position a
two stage process is required to be followed in respect of an offence
punishable under Section 304B I.P.C.: it is necessary to first ascertain
whether the ingredients of the section have been made out against the
accused; if the ingredients are made out, then the accused is deemed to
have caused the death of the woman but is entitled to rebut the statutory
presumption of having caused a dowry death. From the evidence on
record in the present case the victim died an unnatural death by
committing suicide as she was subjected to cruelty/harassment by her
husband for demand of Rs. 10,000/- which started from the time of her
marriage and continued till she committed suicide. Thus, the provisions
of Section 304B and 498A of the Indian Penal Code are attracted.
In the light of the above discussion, we are of the opinion that the
victim suffered death at her paternal home, otherwise than under normal
circumstances, within seven years of her marriage, and the case squarely
falls within the ambit of dowry death. In the present case from the
evidence of P.W.4, P.W.6 and P.W.8, we find that the harassment of the
deceased was with a view to coerce her to convince her parents to meet
the demand of Rs. 10,000/-.
All the above factors clearly establish the legal requirements for an
offence falling under Section 304B and 498A Indian Penal Code with the
aid of Section 113B of the Evidence Act against the accused appellant,
and the conviction and sentence imposed, therefore, do not call for
interference. Hence, the appeal fails and is accordingly dismissed.
The judgement and order of conviction passed by the Ld. Court
below is hereby made confirmed.
Let a copy of this judgment, along with the L.C.R. be sent down to
the Ld. Court below.
I agree
(Nadira Patherya, J.) (Amitabha Chatterjee, J.)