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Bipul Ranjan Paul-vs-State Of West Bengal on 15 March, 2007

Calcutta High Court Bipul Ranjan Paul-vs-State Of West Bengal on 15 March, 2007
Equivalent citations:2007 (3) CHN 97
Author: A K Basu
Bench: A K Basu, K Mukherjee

JUDGMENT

Alok Kumar Basu, J.

1. Appellant Bipul along with his father Bimal and mother Parul faced charges under Section 498A as well as under Section 304B of the IPC in connection with Sessions Trial No. 8(8) of 2001 before the learned Additional Sessions Judge, 5th Court, Barasat in the district of 24-Parganas (North) and after conclusion of trial, Bipul was found guilty both under Section 498A as well as under Section 304B of the IPC and both Bimal and Parul were acquitted of those charges. The learned Additional Sessions Judge, after convicting Bipul both under Section 498A as well as under Section 304B of the IPC, sentenced Bipul to suffer rigorous imprisonment for 10 years and also to pay a fine of Rs. 2,000/- in default to suffer further simple imprisonment for one month.

2. Bipul has now preferred this appeal challenging his conviction and sentence.

3. The prosecution case in brief was that Nupur, daughter of Bimal Krishna Paul of village Janakul under P.S. Habra was given marriage to appellant Bipul Paul, son of Bimal and Parul of No. 8, Ashok Nagar in the month of Agrahayan 1407 B.S.

4. It was the allegation of Bimal Krishna Paul that soon after marriage Nupur was tortured both physically and mentally by her father-in-law and mother-in-law over demand of money and for other articles.

5. On 13th September, 2000 Bimal Krishna Paul came to learn from some people of Ashok Nagar that her daughter was set on fire and she was taken to Barasat hospital.

6. Bimal Krishna by lodging a written complaint requested Officer-in-Charge of Habra P.S. to investigate the matter and to punish the guilty persons.

7. On the basis of written complaint of Bimal Krishna Paul, the present case was instituted by Habra P.S. and since Nupur subsequently succumbed to her burn injuries, the Investigating Officer, after completion of investigation, submitted chargesheet both under Section 498A as well under Section 304B/306 of the IPC.

8. The learned Additional Sessions Judge, on examination of necessary papers and on hearing the prosecution and the accused persons, framed charges against Bipul and his parents under Section 498A as well as under Section 304B of the IPC and also in the alternative under Section 306 of the IPC. All the accused persons pleaded not guilty to those charges and claimed for trial.

9. During trial, prosecution examined in all 18 witnesses before the learned Trial Judge and out of those witnesses, P.W. 1 Bimal Krishna Paul, P.W. 4 Anima Paul, P.W. 9 Manik Ghosh and P.W. 13 Parimal Paul would be very much relevant for our discussion and disposal of this appeal.

10. Apart from the four witnesses stated above, P.W. 10 Sandip Basu was examined as an executive Magistrate to prove the inquest report and P.W. 16 to P.W. 18 were three doctors of whom P.W. 17 conducted post mortem examination over deadbody of Nupur and P.W. 18 recorded statement of Nupur while admitting her in the emergency department of R.G. Kar Hospital on 13th September, 2000. Prosecution also examined P.W. 15 Tushar Kanti Kar as the Investigating Officer of the case.

11. Prosecution also placed during trial before the learned Trial Judge the original FIR, copy of inquest report, copy of post-mortem report, seizure list as well as papers relating to admission of Nupur at R.G. Kar Hospital.

12. We have already indicated that the learned Trial Judge after considering entire prosecution evidence both oral and documentary and after hearing submissions put forward by both prosecution and the accused persons ultimately convicted the present appellant, husband of deceased Nupur both under Section 498A as well as under Section 304B of the IPC.

13. The learned Trial Judge as it appears from his judgment impugned in this appeal after scanning the entire prosecution evidence made the following observations:

Nupur was legally married wife of appellant Bipul and Nupur died of burn injuries within seven years from her marriage with appellant Bipul;

Nupur before receiving burn injuries and her transfer to hospital for treatment was under custody of appellant Bipul and, in fact, she was sleeping with Bipul in a room before catching the fire;

Bipul in particular tortured Nupur during her lifetime over demand of dowry, to be more precise over demand of a refrigerator;

Nupur suffered a homicidal death and appellant Bipul set her ablaze and was squarely responsible for her homicidal death.

14. The learned Trial Judge after considering prosecution evidence observed as it appears from his judgment impugned in this appeal, that there was no evidence to prove satisfactorily that parents of Bipul ever tortured Nupur over demand of dowry and on such observation, the learned Judge acquitted the parents of both the charges framed against them under Section 498A and under Section 304B of the IPC.

15. The learned Judge also made certain observations about the Investigating Officer for his intentional dereliction of duty in conducting investigation in a proper manner.

16. Mrs. Sinha appearing for the appellant Bipul Ranjan Paul has placed before us the relevant prosecution evidence both oral and documentary and she has also placed before us the relevant observations of the learned Trial Judge on the basis of which he ultimately recorded the order of conviction against her client.

17. Mrs. Sinha submits that there is no denying of the fact that deceased Nupur was legally married wife of appellant Bipul Ranjan Paul and said Nupur died within seven years of her married life and she caught fire while staying in the same room with her husband Bipul Ranjan Paul.

18. Mrs. Sinha submits with reference to the prosecution evidence and charges that prosecution never pressed a case alleging homicidal death of Nupur and it would be quite clear from the chargesheet as well as from he charges framed by the learned Trial Judge that the specific allegation against the appellant along with his parents has been that of causing dowry death’ of Nupur. Mrs. Sinha submits that since Nupur died out of burn injuries and since according to prosecution she died otherwise than under normal circumstances while staying at her matrimonial home and since there were allegations of dowry demand and resultant torture on Nupur due to non-fulfillment of such dowry demand, chargesheet was submitted under Section 498A read with Section 304B of the IPC and also under Section 306 of the IPC and the learned Trial Judge also framed charges accordingly.

19. Mrs. Sinha submits that in view of charges framed against the appellant and in view of prosecution evidence brought on record during trial, the learned Judge was totally wrong in observing in his judgment that Nupur died a homicidal death and appellant set her ablaze.

20. Mrs. Sinha submits that the observation of the learned Judge that Nupur died a homicidal death and appellant set fire on her was without any evidence and was sheer result of imagination.

21. Mrs. Sinha submits that in the body of FIR there was an omnibus statement about dowry demand and the FIR was lodged by the father of Nupur and in the FIR there was allegation regarding demand of money against the parents of Bipul and there appears nothing against Bipul.

22. Mrs. Sinha submits that only during trial P.W. 1 father, P.W. 4 the mother, P.W. 9 one neighbour and P.W. 17 uncle of Nupur for the first time introduced the story regarding demand of a refrigerator by Bipul and on meticulous analysis of the statement of these witnesses one will find that there was no specific allegation against Bipul regarding the demand of refrigerator and, in fact, P.W. 13 uncle of Nupur stated during trial that parents of Bipul used to torture Nupur for demand of refrigerator. Mrs. Sinha, therefore, submits that on careful analysis of the statement of P.W. 1, P.W. 4, P.W. 9 and P.W. 13 it would be crystal clear that the main prosecution allegation regarding dowry demand was not at all proved and, that apart, there was no evidence on record to substantiate the prosecution allegation that immediately before death of Nupur she was subjected to any torture either physically or mentally over dowry demand by the appellant Bipul.

23. Mrs. Sinha contends that in this case there is really a mystery as to the nature of death suffered by Nupur and prosecution in this regard did not succeed at all to place any clinching evidence in support of its allegation. Mrs. Sinha submits that the doctor who conducted post-mortem examination opined that death of Nupur was due to septic absorption due to injuries caused by burn and the doctor did not give any opinion whether such death was homicidal or accidental although the doctor opined that the injuries were all of ante-mortem in nature. Mrs. Sinha contends that P.W. 18 who was in charge of the emergency ward of R.G. Kar hospital where Nupur was taken on 13th September, 2000 recorded on the paper that Nupur disclosed before him that she caught fire from a burning biri which her husband was smoking and in his substantive evidence the said doctor reiterated the same. Mrs. Sinha contends that Investigating Officer in his evidence clearly stated that Bipul was also injured out of burning and he was admitted in hospital and this statement of I.O. got corroboration from the statement of doctor Anupam Mishra P.W. 16.

24. Mrs. Sinha submits that when we take into consideration the opinion of the doctor who conducted post-mortem examination along with the opinion of doctor P.W. 18, statement of I.O. and opinion of doctor P.W. 16, we cannot have any hesitation in mind to hold firmly that Nupur accidentally caught fire on her nighty from a burning biri which her husband was smoking at the relevant time and for this callous and negligent conduct of her husband she unfortunately received burn injuries and ultimately expired.

25. Mrs. Sinha submits that although Nupur died within seven years of her marriage and she died out of burn injuries and she died at her matrimonial home, the presumption of Section 113B of the IPC and also the provisions of Section 304B and Section 498A of the IPC would be of no help for the prosecution as prosecution miserably failed to establish that Nupur died in a suspicious manner and before her death she was subjected to torture over demand of dowry.

26. Mrs. Sinha submits that the learned Judge recorded an order of acquittal in favour of parents of Bipul holding inter alia that there was no evidence to prove that parents of Bipul tortured Nupur over demand of dowry and this observation of the learned Judge was totally contrary to the evidence of record because we find that even the scanty evidence of prosecution on dowry demand was against only the parents of Bipul and there was practically no evidence against Bipul supporting the prosecution allegation regarding dowry demand.

27. Mrs. Sinha, therefore, concludes that on careful consideration of prosecution’s own evidence it would be very much clear that FIR was silent about alleged torture meted out to Nupur by the present appellant over demand of dowry and even the relatives of Nupur did not succeed to prove such allegation during trial although they introduced a new story regarding demand of refrigerator by Bipul. Mrs. Sinha submits that doctor P.W. 18 also demolished the prosecution case by recording the statement of deceased Nupur given before him and hence, after considering the entire evidence on record it is very much clear that the learned Judge, out of conjecture and surmise and without having any regard for evidence on record, expressed his own opinion that Nupur died a homicidal death when that was not ever the prosecution allegation and when there was practically no evidence to support the allegation of torture meted out to Nupur by the present appellant over demand of dowry, the learned Judge was not justified at all in recording the order of conviction either under Section 498A or under Section 304B against the present appellant and the present appellant in view of prosecution evidence alone is entitled to be acquitted of all the charges.

28. Mr. Bhattacharya appearing for the State respondent submits that in this particular case performance of Investigating Officer was far from satisfactory and, in fact, the learned Trial Judge make certain observation about performance of the Investigating Officer and in that background, we are to consider the prosecution evidence and to appreciate the reasonings recorded by the learned Trial Judge behind the order of conviction recorded against the appellant. Mr. Bhattacharya submits that FIR cannot be considered to be an encyclopedia of a particular case, a FIR will only indicate the suspicion of the informant over a particular occurrence by mentioning the probable suspects of the occurrence and only during trial evidence would come either to support the prosecution case or to disprove the prosecution case.

29. Mr. Bhattacharya contends that here in this case both the parents of Nupur along with one independent witness P.W. 9 and also uncle of Nupur P.W. 13 deposed about torture meted out to Nupur by the present appellant over demand of a refrigerator and this was sufficient for the learned Judge to hold conclusively that Nupur was tortured for demand of dowry.

30. Mr. Bhattacharya submits that it was never disputed during trial that Nupur died at the matrimonial home on receipt of burn injury within seven years of her marriage. Now, looking at the post-mortem report and also at the evidence of the doctor who conducted post-mortem examination, we really do not get any clear idea as to the nature of death suffered by Nupur.

31. Mr. Bhattacharya submits that Nupur died out of burn injuries and she was with the appellant in the same room and naturally, appellant was legally bound to explain under what circumstances Nupur caught fire, but appellant during trial or during his examination under Section 313 of the Cr.PC did not offer any explanation.

32. Mr. Bhattacharya contends that mother of Nupur P.W. 4 and also P.W. 9 and P.W. 13 have stated during trial that they came to learn from Nupur that when she was asleep she caught fire and she was told by appellant to state before others that from a burning biri she caught fire and this statement of Nupur as disclosed by P.W. 4, P.W. 9 and P.W. 13 together with failure of appellant to explain the catching of fire was sufficient to hold that Nupur died in a suspicious manner and the chain is complete to attract the provision of both Section 498A as well as Section 304B with the help of provision of Section 113B of the Evidence Act.

33. Mr. Bhattacharya submits that the learned Trial Judge after proper appreciation of evidence did not find sufficient evidence against the parents of Bipul regarding the allegation of dowry demand and when Nupur died in a suspicious manner at the matrimonial home while being under the exclusive custody of the appellant within seven years of marriage, the learned Judge rightly invoked the provisions of both Section 498A and Section 304B of the IPC with the aid of Section 113B of the Evidence Act and hence, there appears no ground to interfere with the said conviction and sentence.

34. We have heard and considered submissions of both Mrs. Sinha and Mr. Bhattacharya and we have also perused the prosecution evidence both oral and documentary along with the judgment of the learned Trial Court.

35. The present appellant along with his parents faced charges under Section 498A as well as under Section 304B of the IPC and the learned Trial Judge also framed the alternative charge under Section 306 of the IPC. The learned Judge, however, after conclusion of trial found this appellant guilty both under Section 498A as well as under Section 304B of the IPC.

36. Now, to consider a charge under Section 498A, prosecution is required to prove cruelty meted out to a married woman by her husband or relatives of the husband and such cruelty was committed with a view to pressurise the victim woman to meet unlawful demand of dowry.

37. From the provision of Section 304B, we find that where death of a married woman was caused by any burn or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that since before her death she was subjected to cruelty or harassment by husband or any relative of her husband for or in connection with any demand of dowry, such death shall be called ‘dowry death’ and such husband or relative shall be deemed to have caused her death.

38. Having regard to the provisions of both Section 498A and Section 304B of the IPC, husband can be convicted only when there will be clinching evidence on record to come to a definite conclusion that the victim woman was married wife of the accused and the woman was subjected to cruelty in connection with demand of dowry and to bring the case under the provision of Section 304B it must be proved from evidence that the married woman died otherwise than under normal circumstances within seven years of her marriage and before her marriage she was subjected to cruelty and harassment in connection with dowry demand.

39. The learned Judge after discussing prosecution evidence came to the conclusion that the victim housewife of this particular case was married with the appellant and she died otherwise than under normal circumstances within seven years of her marriage and this part of the findings of the learned Judge finds sufficient support from the prosecution evidence and also from the trend of cross-examination of the prosecution witnesses.

40. The learned Judge after scanning the prosecution evidence thereafter came to the conclusion that the victim housewife suffered a homicidal death and, in fact, the present appellant being the husband put her under fire and he did it in connection with demand of dowry and on such findings the learned Judge convicted the appellant both under Section 498A as well as under Section 304B of the IPC.

41. We have already indicated that from the provisions of Section 304B we do not find any mention of ‘homicidal death’ of a married woman and it goes without saying that if from evidence on record a conclusion can be drawn that the victim wife suffered a homicidal death and the husband was responsible for such homicidal death, the husband must be charged under Section 302 of the IPC and not under Section 304B of the IPC.

42. After hearing submissions of the learned Advocate of the appellant and also the learned Advocate for the State, we think our prime concern would be to decide what was the nature of death suffered by the victim housewife in this particular case on the basis of prosecution evidence placed before the learned Trial Judge.

43. From the evidence of P.W. 16 Dr. Anupam Mishra, P.W. 17 Dr. Swapan Kr. Bhowmik and P.W. 18 Dr. Sruteswar Bera we find that the victim housewife caught fire when she was sleeping with her husband and P.W. 17 the doctor who conducted post-mortem examination opined that death was due to septic absorption resulting from the infected burn injuries which were all ante-mortem in nature. We find from the evidence of P.W. 18 that the patient disclosed before him that she caught fire from a biri which was smoked by her husband on 13th September, 2000.

44. Thus, from the evidence of three doctors examined by prosecution we find that the victim housewife caught fire from a biri smoked by her husband and the doctor who conducted post-mortem examination did not give any opinion whether the burn injuries were homicidal or accidental in nature. It is pertinent to mention that it was neither the case of prosecution nor of the appellant that the victim housewife committed suicide and naturally if there was no case of suicidal death, the housewife suffered either homicidal death or accidental death and in this particular case when chargesheet was not submitted for homicidal death and charge was not framed for homicidal death and no evidence was placed supporting such homicidal death, the learned Judge had no evidence before him to come to a conclusion that the housewife suffered a homicidal death and this part of the observation of the learned Judge appears to be completely his personal observation without having any nexus with fact and evidence on record.

45. We find from the evidence of P.W. 4, mother of the victim housewife supported by P.W. 9 and P.W. 13 that victim housewife disclosed before them that she caught fire when she was sleeping and her husband insisted her to told others that she caught fire from his biri and this part of the evidence encouraged the learned Judge to come to a conclusion that husband was responsible for the death of the housewife.

46. After careful consideration of the statement of P.W. 4, P.W. 9 and P.W. 13 we find that their statement in this connection does not inspire any confidence simply, because, their statement was not supported by either any doctor or by any attending nurse and in our considered view this part of the prosecution evidence was simply an attempt to give a different colour to the prosecution case.

47. We have already observed that Section 304B will come into play only when a married housewife would suffer a death otherwise than under normal circumstances either as a result of burn injuries or other injuries and that must be within seven years of her marriage and before such death she must be subjected to cruelty and harassment in connection with demand of dowry. In this particular case we find that the victim housewife died within seven years of her marriage and she died out of burn injuries and such death was certainly otherwise than under normal circumstances, but, the prosecution evidence was not at all clear and convincing to prove that the husband had any role behind such death.

48. Now, we must come to the second important aspect of the prosecution allegation as to whether prosecution was successful to prove that before death the housewife was subjected to cruelty and harassment by the husband in connection with demand of dowry.

49. Looking at the FIR which was lodged just after the occurrence we find that whatever scanty allegation was made in connection with dowry demand that was made against the parents of the appellant and not a single word was used in the FIR to make the appellant responsible for demand of dowry.

50. We find on analysis of the statement of P.W. 1 father and P.W. 4 mother of the deceased that only during trial attempt was made to show that the present appellant demanded a refrigerator, but, here again on careful consideration of the statement of both father and mother of the victim housewife we find that money for refrigerator allegedly was paid to the father of the appellant and not to the appellant and the evidence in this regard is not sufficient at all to support the prosecution allegation that the present appellant was responsible for any cruel treatment towards the victim wife and in connection with dowry demand.

51. When we consider the evidence of P.W. 13 uncle of the victim housewife, we find that only at the concluding part of his evidence he mentioned about dowry demand, but, here also we do not find any evidence against the present appellant and whatever P.W. 13 has stated that was directed against the parents of the appellant.

52. As regards the evidence of P.W. 9, after careful consideration of his entire evidence we are bound to conclude that he was a procured witness of the prosecution and no reliance can be placed on his testimony.

53. Thus, from the FIR as well as from the statements of P.W.1, P.W. 4, P.W. 9 and P.W. 13 who were only examined by prosecution to support its allegation against the appellant, we are of the considered view that practically there was no evidence to support the prosecution case that appellant ever ill-treated or harassed his wife over demand of dowry and, practically speaking, there was no evidence before the learned Judge to come to the conclusion that soon before her death the victim housewife was subjected to cruelty or harassment in connection with dowry demand.

54. Thus, after hearing both the sides and after careful consideration of the prosecution evidence, we are of the considered view that the housewife, in fact, suffered an accidental death and there was no evidence to support the prosecution case that the present appellant ever ill-treated or harassed his wife over demand of dowry and naturally, on the basis of prosecution evidence, we are unable to accept the findings of the learned Judge on the basis of which he convicted the present appellant both under Section 498A and under Section 304B of the IPC.

55. In the result of our above discussion, we find merit in the present appeal and we allow the same.

56. The appeal preferred by Bipul Ranjan Paul is allowed and the order of conviction and sentence recorded against him are hereby set aside.

57. We find from record that the appellant has been released on bail and accordingly we discharge him from his bail bond with immediate effect.

58. Send a copy of this judgment along with LCR immediately to the Trial Court for information and necessary action.

59. Xerox certified copy of this judgment, if applied for, may be supplied expeditiously complying with all legal formalities.

Kalidas Mukherjee, J.

60. I agree.

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