Satyen Barman Alias … vs The State Of West Bengal on 5 July, 2017

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

READ  H vs H on 7 December, 2010

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

READ  Baljit Kaur vs Jaswinder Lal on 30 May, 2017

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

READ  Gangamma Rudrappa Mallannavar vs The State Of Karnataka on 12 December, 2013

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.)

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