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4. Joydeb Saha vs The State Of West Bengal on 23 July, 2019

Form No.J(1)

IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present:

The Hon’ble Justice Asha Arora

C.R.A. 26 of 2018

1.

Buddhadeb Saha … (in Jail)

2. Monmotho Saha

3. Smt. Pratima Saha … (in Jail)

4. Joydeb Saha Appellants
versus
The State of West Bengal

For the Appellants : Mr. Arindam Jana, learned advocate
appears as Amicus Curiae.

For the State : Ms. Sukanya Bhattacharya, learned advocate,
Mr. Mirza Firoj Ahmed Begg, learned advocate.

Hearing concluded On: 23-07-2019.

Judgement On : 23-07-2019.

Asha Arora, J. :

1. This is yet another horrifying incident relating to dowry death of a young

housewife whose life ended within a brief span of seven months of

marriage.

2. The instant appeal has been preferred against the judgement and order of

conviction and sentence dated 20th December, 2017 and 21st December,

2017 passed by the Additional Sessions Judge, 2nd Court, Katwa, Burdwan

in Sessions Trial No. 13 of 2014 arising out of Sessions Case No. 56 of
2013 whereby the appellants were convicted for the offences punishable

under Sectionsections 498A/Section304B/Section34 IPC and sentenced to suffer rigorous

imprisonment for three years and to pay fine of Rs.5,000/- each in default

to suffer imprisonment for six months for the offence punishable under

Sectionsection 498A IPC and to suffer rigorous imprisonment for seven years each

for the offence punishable under Sectionsection 304B IPC. Both the sentences

were ordered to run concurrently. By the judgement and order impugned

one of the co-accused namely, Dasarath Ghosh was found not guilty of the

aforesaid charges and was accordingly acquitted.

3. The facts in brief leading to this appeal may be summarised as follows :

4. On 19th September, 2011 the defacto complainant Uma Sankar Saha (PW-

1) lodged a written complaint at Ketugram P.S. stating that his niece Tuli

Saha (since deceased) was under his care and custody since her childhood

as she had lost her parents. On 24th February, 2011 the defacto

complainant, uncle of the said Tuli Saha gave her in marriage to the

appellant no.1 Buddhadeb Saha in accordance with the Hindu rites and

customs. As per demand of the bridegroom’s family, the defacto

complainant gave cash of Rs.1,30,000/-, five bharis of gold ornaments and

other articles at the time of marriage. It is further alleged that seven days

after her marriage that is, after ‘Astamangala’, the accused

persons/appellants being the husband, father-in-law, mother-in-law and

brother-in-law of Tuli and one co-accused Dasarath Ghosh ‘Dharmapita’ of
her husband started to torture her physically and mentally for bringing

more cash amounting to Rs.1,00,000/- from her uncle. Tuli’s uncle

somehow managed to give Rs.60,000/- to the accused persons but they

were not satisfied so they continued to torture her for the remaining

amount of Rs.40,000/-. The defacto complainant and his relatives tried to

settle the matter amicably but to no avail. On 16th September, 2011 at

about 6 p.m. Tuli was assaulted by her husband and mother-in-law as

they were not satisfied with the articles gifted by her uncle on the occasion

of Durga Puja. That night Tuli informed about the incident to her uncle

(PW-1) and his son Khagendra Nath Saha (PW-4) over phone. She was

asked to wait till the next morning when her uncle would go to her

matrimonial home to settle the matter but not being able to bear the

torture, Tuli who was then pregnant committed suicide by consuming

poison on the same night. On the basis of the aforesaid written complaint,

Ketugram P.S. Case No. 250 of 2011 dated 19.09.2011 under Sectionsections

498A/Section304B IPC was initiated against the accused persons. Investigation

culminated in the submission of the charge-sheet under Sectionsections

498A/Section304B/Section34 IPC and under Sectionsections 3/Section4 of Dowry Prohibition Act

against the appellants herein and one co-accused named Dasarath Ghosh.

5. The trial court framed charges for the offences punishable under Sectionsections

498A/Section304B/Section34 IPC and under Sectionsections 3/Section4 of Dowry Prohibition Act

against the accused persons. Being so arraigned, each of the accused

pleaded not guilty to the indictment in consequence of which trial
commenced. In course of trial prosecution examined eleven witnesses and

relied upon several documents which were tendered in evidence.

6. Defence version is innocence and complete denial of the prosecution case.

From the tenor of cross-examination of the prosecution witnesses as well

as from the examination of the accused Buddhadeb Saha under Sectionsection

313 of the Code of Criminal Procedure it appears that the appellants

sought to set up a defence that Tuli died due to ailment, not by consuming

poison. No evidence was led by the accused in support of such defence.

7. On the basis of the evidence on record the trial court convicted the

appellants and sentenced them as aforesaid while co-accused Dasarath

Ghosh was acquitted of the charges levelled against him.

8. The point for determination is whether the conviction and sentence of the

appellants is sustainable.

9. Mr. Arindam Jana, learned advocate appearing as amicus curiae submits

that the alleged incident of 16th September, 2011 was over the issue of

articles gifted on the occasion of Durga Puja. There was no demand for

dowry. Mr. Jana contended that the articles gifted to the husband and in-

laws of the bride do not come within the purview of dowry since gifts are

given voluntarily without any demand. It is canvassed that there is no

evidence to show that soon before her death, Tuli was subjected to cruelty

or harassment by the accused persons for or in connection with any
demand for dowry within the meaning of Sectionsection 304B IPC. It is argued

that at best it could be a case of abetment of suicide under Sectionsection 306

IPC. It is pointed out that the alleged demand for cash of Rs.1,00,000/-

was not made “soon before the death” of Tuli. Further submission is that

prosecution could not show wherefrom the complainant had arranged for

the cash amount which was allegedly given to the accused persons.

Referring to the cross-examination of PW-1, Mr. Jana submits that no

corroborative evidence could be produced in support of the complainant’s

assertion that by selling his land to Prabir Saha and Balaram Saha he

procured cash of Rs.60,000/- which was given to the accused persons. No

document in the nature of sale deed could be produced to show that land

was sold to procure cash for satisfying the demand of accused. It is argued

that the inquest report (exhibit-3) does not indicate that the witnesses to

the inquest made any utterance regarding demand for dowry by the

accused persons. It is contended that the financial status of the

accused/appellants was better than that of the complainant so the story of

demand for cash is not believable. Referring to the evidence of PW-9 Dr. N.

Ghatak, Mr. Jana contended that since no poison was detected in the

viscera of the deceased, the accused/appellants should get the benefit of

doubt.

10. Per contra, learned advocate appearing for the State argued that the

demand for cash was made soon before the death of Tuli as it transpires

from the evidence of PW-1 and PW-4. Referring to the evidence of PW-4 it
is pointed out that on 16th September, 2011 the accused persons asked

Tuli to bring the remaining cash of Rs.40,000/- since they did not like the

articles which were gifted on the occasion of Durga Puja. In the context

that Tuli was subjected to harassment and cruelty in connection with

demand for cash “soon before her death”, reliance has been placed on the

case of Kamesh Panjiyar Alias Kamlesh Panjiyar Versus State of Bihar

reported in 2005 Supreme Court Cases (Cri) 511 and Arun Garg Versus State

of Punjab and Another reported in (2004) 8 Supreme Court Cases 251.

Reference has also been made to the case of Thakkan Jha and Others

Versus State of Bihar reported in (2004) 13 Supreme Court Cases 348.

Learned advocate for the State argued that the accused persons could not

substantiate the plea that death of Tulsi occurred under normal

circumstances due to ailment. According to the learned advocate for the

State, the charges levelled against the appellants/accused have been

proved beyond any shadow doubt and their conviction is justified.

11. It is not in dispute that the incident occurred in the matrimonial house of

Tuli where she was residing with the appellants after her marriage to the

appellant no.1. The evidence regarding the factum of marriage and the fact

that Tuli resided with the appellants in the same house at the relevant

time remained unchallenged in cross-examination. Through the evidence

of PW-1, PW-2, PW-3 and PW-4 prosecution endeavoured to prove that Tuli

was subjected to cruelty and harassment by the appellants over the issue

of demand for more cash. PW-1 is the defacto complainant who is the
uncle of Tuli. PW-2 is the brother-in-law of PW-1. PW-3 is a co-villager and

friend of PW-1 and PW-4 is the cousin brother of Tuli. For the purpose of

this appeal it may be useful to quote the evidence of PW-1 which is as

follows :

“I gave marriage of Tuli Saha to Buddhadeb Saha of village Pandugram
under P.S. Ketugram on 24.02.2011 according to Hindu rites and
Custom. At the time of marriage I gave cash Rs. 1 Lakh 30 Thousand,
Gold ornaments weighing about 5 vories and other “Dansamogris” to
Buddhadeb Saha as dowry. After marriage Tuli Saha went to her
matrimonial house and started to live there. The accused persons,
just after marriage used to inflict torture upon Tuli Saha both
physically and mentally on demand of further dowry of Rs. 1 Lakh. I
came to know this fact of further demand of dowry from the mouth of
Tuli Saha. The accused persons also asked Tuli Saha that she has to
leave her matrimonial house in default of payment of said dowry by
me. Then I again gave cash Rs.60,000/- to the accused person
(Buddhadeb Saha) to meet the said further demand. I procured the
said money by selling my landed property keeping in mind the better
future of Tuli Saha. But the accused persons continued to torture Tuli
Saha on demand of remaining amount of Rs. Forty Thousand
(40,000/-). I told the fact of said torture upon Tuli Saha to my son
and other relatives. My relatives tried to compromise the matter. But
no fruitful result came. In the night of previous day of death of Tuli
Saha, she called in my son’s mobile and informed us about the said
torture. She also informed us that in default of payment of remaining
dowry the accused persons will kill her. Over phone we told Tuli Saha
that we will go to her matrimonial house in the morning. On the next
day morning myself and my son went to the matrimonial house of
Tuli Saha. When we reached the matrimonial house of Tuli Saha we
came to know from the village people that Tuli Saha consumed poison
due to torture upon her by the accused persons. She had been shifted
to Katwa hospital. Thereafter we came to Katwa hospital and found
that Tuli Saha died. At that time of death of Tuli Saha was pregnant
for three months.”

Being quizzed in cross-examination PW-1 spontaneously and

unhesitatingly stated that he procured the cash of Rs.1,30,000/- by selling

paddy and he procured Rs.60,000/- by selling land to Prabir Saha and

Balaram Saha. In his cross-examination PW-1 disclosed the source of the

cash amount which was given to the accused as dowry. It has also

surfaced in the cross-examination of PW-1 that Rs.60,000/- which was

given to the accused persons after Tuli’s marriage was procured by selling

land. On query by the defence counsel in cross-examination PW-1

specifically mentioned the names of the two persons to whom the land was

sold. There is no substance in the argument that the evidence of PW-1 in

this regard cannot be relied upon since the aforesaid two persons named

Prabir Saha and Balaram Saha have not been examined. We cannot lose

sight of the fact that the names of these two persons emerged in the cross-

examination of PW-1 in response to a query by the defence counsel. It is

evident that PW-1 deposed naturally without any exaggeration. The

evidence of PW-1 is in conformity with the FIR. This witness was

extensively cross-examined but nothing could be elicited from the mouth

of PW-1 to render his evidence untrustworthy. The evidence of PW-1 has

been corroborated by PW-2, PW-3 and PW-4. These three witnesses

testified regarding the factum of torture upon deceased Tuli by all the
accused persons who demanded cash of Rs.1,00,000/- after Tuli’s

marriage. It transpires from the evidence of these witnesses that PW-1

somehow managed to give Rs.60,000/- to the accused persons but failed

to meet their demand for the remaining amount of Rs.40,000/- so they

continued to inflict torture upon Tuli. PW-3 is a co-villager and friend of

PW-1. He claims to have heard from Tuli about the factum of demand for

more cash by the accused persons. This witness stated that against the

said demand Uma Sankar Saha (PW-1) gave Rs.60,000/- to the accused

persons but failed to give the remaining amount as a result of which the

accused persons continued to torture Tuli. No contradiction could be

pointed out in the evidence of these witnesses in relation to their

statement under Sectionsection 161 CrPC. The evidence of these witnesses

remained unscathed in cross-examination. PW-4 is another material

witness whose evidence is quoted hereinbelow :

“Just after marriage all the accused persons used to torture
upon Tuli Saha on demand of further dowry of Rs.1 Lakh.

As per said further demand we gave cash Rs.60,000/- to the
accused persons.

Even after that dowry the accused persons continued their
torture upon Tuli Saha as we could not give the remaining
Rs.40,000/- to them.

When Tuli Saha used to visit our house at that time she told us
about the torture upon her by the accused persons.

She also requested me to ask my father to give remaining to
Rs.40,000/- to the accused persons to stop the torture.

Few months ahead of the death of Tuli we sent some garments
at her matrimonial house on the occasion of Durga Puja.

On 16.09.11 the accused persons asked Tuli to bring the said
remaining cash Rs.40,000/- from us on the pretext that they did not
like which we had sent.

On 16.09.11 Tuli Saha rang me at about 7.30 p.m. and informed
me that her husband and mother-in-law were assaulting her during
the time of assaulting she was on the phone line.

They brought her down from the first floor to ground floor by
assaulting her.

At that time my sister was crying.

At the relevant point of time my sister was pregnant for three
months.

In the morning of the next date of the said incident someone of
village Pandugram informed us over telephone that Tuli took poison
and she was shifted Katwa S.D. hospital.”

12. Curiously enough, the narration of the incident of 16th September, 2011 by

PW-4 remained unchallenged in cross-examination. Not a single

contradiction could be pointed out in the evidence of PW-4 with reference

to his statement under Sectionsection 161 CrPC. Nothing could be elicited in the

cross-examination of PW-4 to render his evidence doubtful. The evidence of

PW-4 inspires confidence and is beyond reproach. There is no merit in the

argument that for want of corroboration by independent witnesses from

the village of the accused persons, the evidence of the witnesses related to

the deceased cannot be relied upon. It is well known that evidence relating

to “dowry death” is generally confined within the four walls of the

matrimonial house of the victim and the best evidence is that of the near
and dear ones of the deceased. It is obvious that a newly married girl

would not confide to the neighbouring people of her matrimonial house.

She would naturally confide and narrate her sorrows to her near and dear

ones. In the case in hand, Tuli would inform her uncle (PW-1) and cousin

brother (PW4) about the torture perpetrated upon her in her matrimonial

house. Her uncle (PW-1) had brought her up since the time of demise of

her parents. She would also confide to her cousin brother (PW4) who is the

son of PW-1 whom she had phoned on 16th September, 2011 narrating the

incident of assault upon her by her husband and mother-in-law and

informing him that the accused persons asked her to bring the remaining

cash of Rs.40,000/- since they did not like the articles which were gifted

on the occasion of Durga Puja.

13. The accused persons in vain sought to set up a futile plea by way of

suggestion to the prosecution witnesses that Tuli died under normal

circumstances due to illness and not by consuming poison. This plea

could not be substantiated by any iota of evidence. Section 106 of the

Indian Evidence Act provides that when any fact is specially within the

knowledge of any person, the burden of proving that fact is upon him. It is

not in dispute that Tuli was married to the appellant no.1 on 24th

February, 2011. The fact that Tuli died in her matrimonial house within

seven months of her marriage has not been denied. From the evidence of

PW-9 Dr. N. Ghatak it transpires that no poison was found in the viscera

sample of deceased which was received on 22nd February, 2012. PW-10 is
the medical officer who held post-mortem examination over the deadbody

of Tuli on 17th September, 2011. This witness testified in his evidence that

on visceral examination “odour material with pungent smell was found in

the stomach”. PW-10 opined that if anyone takes poison, such kind of

pungent smell may be found. PW-10 did not give any conclusive opinion as

to the cause of death since the viscera was sent for chemical examination.

Being quizzed in course of evidence, PW-10 admitted that if delay is

caused in sending viscera sample for chemical examination, the poison

might not be found. In the present case the viscera was received for

chemical examination on 22nd February, 2012 that is, after five months.

There is nothing on record to show that the viscera sample was preserved

properly during the aforesaid period. Though no poison could be detected

in the viscera sample of the deceased, the factual position of the case in

hand substantiated by the evidence of the witnesses and the inquest

report go to show that death of Tuli had occurred “otherwise than under

normal circumstances”. The inquest report lends credence to the

prosecution case as it appears therefrom that death of Tuli was caused by

consuming poison. At the time of inquest it was noted that froth was

coming out from the mouth and nose of the deceased. The expression

“normal circumstances” apparently means natural death. In other words,

the expression “otherwise than under normal circumstances” means death

not being in the usual course but apparently under suspicious

circumstances. In the case of Bhupendra Versus State of Madhya Pradesh
reported in 2013 (4) Crimes 480 (Supreme Court) it was held that chemical

examination of viscera is not mandatory in every case of a dowry death.

For the purpose of Sectionsection 304B IPC mere fact of an unnatural death is

sufficient to invite a presumption under Sectionsection 113B of the Evidence Act.

The relevant paragraph 26 of the judgement in Bhupendra’s case (supra) is

quoted hereinbelow :

“26. These decisions clearly bring out that a chemical examination
of the viscera is not mandatory in every case of a dowry death; even
when a viscera report is sought for, its absence is not necessarily fatal
to the case of the prosecution when an unnatural death punishable
under Section 304-B of the IPC or under Section 306 of the IPC takes
place; in a case of an unnatural death inviting Section 304-B of the
IPC (read with the presumption under Section 113-B of the Evidence
Act, 1872) or Section 306 of the IPC (read with the presumption
under Section 113-A of the Evidence Act, 1872) as long as there is
evidence of poisoning, identification of the poison may not be
absolutely necessary.”

Reverting to the case in hand, from the evidence on record it is clear that

death of Tuli had occurred otherwise than under normal circumstances.

14. There is no force in the argument that prosecution case is doubtful since

the witnesses who were present at the time of inquest did not state that

Tuli was subjected to cruelty and harassment for dowry demand. Section

174 CrPC has a very limited scope. The object of the proceeding under

Sectionsection 174 CrPC is merely to ascertain whether a person died under

suspicious circumstances or an unnatural death and if so, what is the
apparent cause of death. The questions regarding details of the incident

and the statement of witnesses to the inquest are alien to the ambit and

scope of the proceedings under Section 174 CrPC.

15. The evidence of the witnesses hereinbefore discussed proves that there was

further demand for cash of Rs.1,00,000/- just after the marriage of Tuli

and the accused persons would inflict torture upon her for bringing the

said amount. Tuli’s uncle (PW-1) managed to give cash of Rs.60,000/- to

the appellant no.1 but the torture continued since the remaining amount

of Rs.40,000/- was not given. It has been convincingly proved by credible

evidence that Tuli was assaulted by her husband and mother-in-law on

16th September, 2011 over the issue of the remaining amount of

Rs.40,000/-. In Arun Garg’s case (supra) the appellant-husband of

deceased had been demanding more dowry after the marriage which took

place on 25th February, 1996, about which deceased having informed her

father on telephone on 10th April, 1996, further dowry had been given on

21st April, 1996 but demand for more dowry made in July 1998 remained

unfulfilled so the appellant and his family members continued to harass

the deceased and on 26th March, 1999 deceased again made a telephonic

call to her father informing him that her husband and in-laws were

conspiring to kill her whereafter on 28th March, 1999 deceased was

admitted in hospital in serious condition and she died on 30th March,

1999. The cause of death was found to be intake of poisonous substance.

On facts it was held that the ingredients of Sectionsection 304B were satisfied so
the presumption under Sectionsection 113B of Evidence Act arises which though

rebuttable could not be rebutted by the appellant. It was further held in

the said case that even without the aid of Sectionsection 113B of Evidence Act

prosecution proved its case and conviction under Sectionsection 304B was

upheld. Reverting to the case in hand, deceased Tuli lived her marital life

only for seven months. Just after her marriage the accused/appellants

demanded more cash of Rs.1,00,000/-. PW-1 the uncle of the deceased

somehow managed to give them Rs.60,000/- but torture upon Tuli

continued on account of the unfulfilled demand for the remaining amount

of Rs.40,000/-. It is clear that the torture and harassment meted out to

Tuli was continuous without any break till the incident of 16th September,

2011 culminating in her unfortunate death. In the case of Thakkan Jha

and Others Versus State of Bihar reported in (2004) 13 Supreme Court Cases

348 it was held that no presumption under Sectionsection 113B of the Evidence

Act would be drawn against the accused if it is shown that after the alleged

demand, cruelty or harassment the dispute stood resolved and there was

no evidence of cruelty and harassment thereafter. It was observed that the

expression “soon before” is not synonymous with the term “immediately

before”. The said term would normally imply that the interval should not

be much between the cruelty or harassment concerned and the death in

question that is, there must be existence of a proximate and live link

between the two. The determination of the period which can come within

the term “soon before” is left to be determined by the courts depending
upon the facts and circumstances of each case. There is no straitjacket

formula that can be laid down by fixing any time limit in this regard. In the

case in hand, the three essential ingredients of Sectionsection 304B IPC having

been established by cogent and convincing evidence hereinabove

discussed, the presumption under Sectionsection 113B of the Evidence Act arises

which could not be rebutted by the appellants.

16. There is no force in the argument that at best the offence of abetment of

suicide may be applicable to the facts of the present case. In this context it

may be profitable to refer to paragraphs 32 and 33 of the judgement of the

Supreme Court in Bhupendra’s case (supra) quoted hereinbelow :

“32. The second contention is also without any substance. SectionIn Satvir
Singh and Others v. State of Punjab and Another, (2001) 8 SCC 633
this Court drew a distinction between Section 306 of the IPC and
Section 304-B of the IPC in the following words:-

“Section 306 IPC when read with Section 113-A of the Evidence
Act has only enabled the court to punish a husband or his
relative who subjected a woman to cruelty (as envisaged in
Section 498-A IPC) if such woman committed suicide within 7
years of her marriage. It is immaterial for Section 306 IPC
whether the cruelty or harassment was caused “soon before her
death” or earlier. If it was caused “soon before her death” the
special provision in Section 304-B IPC would be invocable,
otherwise resort can be made to Section 306 IPC.”

33. It was held that Section 306 of the IPC is wide enough to take
care of an offence under Section 304-B also. However, an offence
under Section 304-B of the IPC has been made a far more serious
offence with imposition of a minimum period of seven years
imprisonment with the sentence going upto imprisonment for life.
Considering the gravity of the offence it is treated separately from an
offence punishable under Section 306 of the IPC. On this basis, this
Court rejected the contention that if a dowry related death is a case
of suicide it would not fall within the purview of Section 304-B of the
IPC at all. Reliance in this regard was placed on SectionShanti and Another v.
State of Haryana, (1991) 1 SCC 371 and SectionKans Raj v. State of Punjab
and Others, (2000) 5 SCC 207 wherein this Court held that a suicide
is one of the modes of death falling within the ambit of Section 304-B
of the IPC.”

17. For the reasons discussed, I unhesitatingly hold that the impugned

judgement and order of conviction and sentence passed by the trial court

warrant no interference.

18. Before parting with this matter, I record my appreciation for the able

assistance rendered by Mr. Arindam Jana as the amicus curiae.

19. The appeal is accordingly dismissed.

20. Appellant nos. 2 and 4 who are on bail shall surrender before the trial

court within one month from this date to serve out the sentence in default

of which the trial court shall take appropriate steps against the appellants

for execution of the sentence.

21. Let a copy of this judgement along with the lower court records be sent to

the trial court forthwith.

22. Urgent photostat certified copy of this judgement, if applied for, be given to

the applicant upon compliance of requisite formalities.

( ASHA ARORA, J. )

dc.

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