IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
BEFORE:
The Hon’ble Mr. Justice Joymalya Bagchi
And
The Hon’ble Mr. Justice Ravi Krishan Kapur
C.R.A. NO. 298 of 2013
Ratan Roy Dakua Anr. …… Appellant
-vs-
The State of West Bengal………Respondent
For the Appellant : Ms. Anasua Sinha
For the State : Mr. Sudip Ghosh
: Mr. Bitasok Banerjee
Judgment on : 10 July, 2018
Ravi Krishan Kapur, J.:
1. This appeal is directed against the judgment and order of
conviction dated 21 March, 2013 and 22 March, 2013
passed by the Learned Additional Sessions Judge, F.T.C,
Mathabhaga, Cooch Behar in Sessions Trial No.05(06)/2012
arising out of Sessions Case No.109 of 2012 convicting the
appellants under Section 498A/304B of the Indian Penal
Code. By the impugned order the appellant husband (being
the appellant No.1) and his mother (being the appellant No.2)
were convicted of offences punishable under Sections 498A
and 304B of the Indian Penal Code (IPC) and each awarded
10 years’ imprisonment. By the said order the father-in-law
was acquitted.
2. The genesis of the prosecution case, lies in the information
lodged by Sunanda Barman, the father of the deceased,
Sushila Barman @ Sushila Roy Dakua (Sushila). The
information disclosed that, Sushila got married with Ratan
Roy Dakua son of Sunil Roy Dakua on Friday, 29 Baisakh,
1418 B.S. following Hindu rites and customs. For the
purposes of marriage and in order to fulfill the demands of
the husband, and his parents several items were given at the
time of her marriage being (a) Rs. 25,000 in cash, (b) 100 cc
Bajaj Discover Motor Cycle, (c) one ‘Sishu’ wooden cot, (d)
one steel Almirah and (e) Gold ornaments weighing 1 ½
bharies. Yet beginning from on the day of marriage itself the
husband and his father spoke acrimoniously over the quality
of the articles given as dowry and made insinuations that
they would not take such articles.
3. After the marriage Sushila went to her matrimonial house
and started to reside with her husband and her in-laws. The
articles given as dowry were delivered on the day after
‘Boubhat’ that is 31 Baishak, 1418 B.S. by the complainant
who hired a car on rent and supplied all the items to the
house of the husband.
4. 10 days after the marriage the complainant’s daughter and
her husband came to visit the complainant. At that time,
Sushila told the complainant and his wife that the motor
cycle and the furniture given during the marriage by the
complainant were not up to the liking of her husband and
her in-laws and it was for this reason that the husband and
her in-laws immediately on receipt of the items started
physically and mentally torturing her and made her life
intolerable.
5. On 26 May, 2011 Sushila and her husband who were visiting
her parental home were to return to their matrimonial home.
However, at 12 noon on that date Sushila tried to commit
suicide by setting herself on fire. This incident took place in
the southern room of the complainant’s house. On hearing
her screams, the complainant and his son Sukumar Barman
rushed towards her and were somehow able to extinguish the
fire on her body. The daughter was forthwith removed to the
Mathabhanga Hospital and after first aid she was referred to
Siliguri Medical College. On the date of filing of the
complaint, Sushila was undergoing treatment at the Medical
College. It was disclosed in the FIR that at the sight of burn
injuries sustained by Sushila on the date of incident the
husband fled away from the house of the complainant. The
complainant has stated in the FIR that he is of the firm belief
that being unable to bear the torture, cruelty and ill-
treatment inflicted by the accused persons, Sushila had
decided to end her life and set herself on fire. Sushila
ultimately died due to burn injuries on 9 June, 2011.
6. Upon receipt of the complaint, the police investigated the
case and submitted a charge sheet against all the three
accused persons. The case was committed to the Court of
Sessions and thereafter transferred to the Additional
Sessions Court for Trial and disposal. Subsequently, charges
were framed under Sections 498A/304B of the IPC. All the
accused persons pleaded not guilty and claimed to be tried.
7. In the course of trial, the prosecution examined 12 witnesses
and a number of documents were proved as exhibits. The
defence did not produce any evidence. The accused persons
were examined under Section 313 of the Cr.P.C. but they
declined to examine any witness in defence. In conclusion of
the trial, by a judgment and order dated 21 March, 2013 and
22 March, 2013, the Trial Judge convicted and sentenced the
appellant No.1 (husband) and his mother being the appellant
No.2 (mother-in-law) of the deceased as morefully stated
hereinabove. The other accused person being the father-in-
law of the deceased was acquitted of the charges levelled
against him.
8. Hence the present appeal.
9. Ms. Anasua Sinha Advocate appearing for the appellants
strenuously argued that in convicting the appellant No.1
husband and the appellant No.2 mother-in-law the Trial
Court committed errors both in law and regarding the facts
of the case. She argued that, the cross-examination of all the
witnesses was repetitive and of a stereo-type nature . She
further argued that the dying declaration by the deceased
was not in accordance with law and no reliance ought to be
placed on the same. She further contended that a period of
13 days after the marriage was insufficient to satisfy the
ingredients either under Section 304B or Section 498A of the
IPC. She further stressed on the fact that, the shortness of
the marriage was such that neither cruelty nor dowry
harassment could have been a factor in Sushila committing
suicide. She vehemently contended that the ingredients
either under Section 304B or Section 498A of the IPC had
not been satisfied. She further contended that this was not a
fit case for activating the presumption under Section 113B of
the Evidence Act and that there was no case of torture or
dowry harassment made out either in the FIR or the evidence
of the any of the witnesses. According to counsel, the entire
evidence of the witnesses was vague, bereft of particulars
and based of surmises and of no value at all.
10. Before addressing the issues which arise for
consideration in the instant appeal it is vital to appreciate
the evidence of the witnesses in this proceeding.
PW-1 (Sunando Barman), was the father of the deceased
Sushila Barman and also the de facto complainant in this case.
He deposed that his daughter was married to the appellant No.1
Ratan Roy Dakua on 29 Baisakh, 1418 B.S. After the marriage,
his daughter went to the house of her in-laws in village
Chongerkhata Khagribari to live with her husband and her in-
laws. Sushila died on the 25 day of the month of Jaistha, 1418
B.S. i.e. within one month of her marriage at Cooch Behar
Hospital after sustaining burn injuries which she has suffered
at her residence. Sushila had informed the complainant that her
husband along with her in-laws inflicted mental torture upon
her primarily concerning their dislike of the presentations given
to her at the time of her marriage. He further deposed that, he
consoled Sushila and advised her to lead a family life somehow
with the ultimate hope of future happiness. Sushila had come
along with her husband to visit the complainant and his family
on the 11 day of Jaistha, 1418. On that day at around noon,
Sushila set herself on fire at her father’s house. Whilst she was
on fire she raised an alarm and the complainant and his son
managed to sprinkle water upon her and put off the flames. At
that point of time, the appellant No.1 husband had told the
complainant to take Sushila to the hospital and informed them
that he was going back home for bringing money for the
purpose of her treatment. However, the appellant No.1 husband
neither came back to the house nor to the hospital. Sushila was
taken to Mathabhanga S.D. Hospital and after preliminary
treatment she was moved to Siliguri Hospital where she
underwent treatment for 8/9 days and was taken thereafter
back to the complainant’s home. After 2/3 days at the house of
the complainant Sushila’s health further deteriorated and she
was taken to M.J.N. Hospital, Cooch Behar. Two days later
Sushila died. Neither the appellant No.1 husband nor her in-
laws ever came to visit Sushila at the hospital. The police had
thereafter registered a case of unnatural death and after the
post-mortem examination her body was returned to the
complainant. The entire cremation was conducted by the
complainant and his family. This witness further deposed that
when he was in hospital an FIR was lodged by him with the
Mathabhanga Police Station on the 12th day of Jaistha, 1418
B.S. The complainant further deposed that Sushila was
subjected to ill-treatment, misbehaviour, torture and repeated
taunts about the poor quality of gifts which had been given by
the complainant at the time of her marriage. Sushila was
unhappy at her matrimonial home and she set herself on fire
primarily because of the ill-treatment, cruelty and dowry
demands that she has been subjected to at the hands of her
husband and her in-laws. In cross-examination, the witness
deposed that neither he nor his wife or any of his family
members were invited to the ‘Boubhat’ ceremony. He further
deposed that during the intervening period of 10 days of
marriage he did not visit Sushila’s matrimonial home on a single
occasion. He further deposed that when Sushila along with her
husband came to visit him after 10 days of the marriage there
was a room on the southern side where there was a ‘kupu’ and
a drum containing kerosene oil, Sushila had gone to the room
and set herself on fire. Upon hearing her screams, the
complainant and his son had gone to the room and tried to put
off the flames. Sushila thereafter was taken to the hospital. She
was able to speak. She made her statement before the doctor at
Mathabhanga hospital. The doctor had examined her. She was
audible at the hospital. At around 11 p.m., Sushila was shifted
to the Siliguri hospital for further treatment. She was released
after 4 or 5 days. However, her health deteriorated after she
returned home. She was thereafter, taken to the Cooch Behar
Hospital. He further reiterated that Sushila was tortured and ill
treated by her husband and her in-laws and it was due to the
ill-treatment that she set herself on fire.
PW-2 (Sushil Barman), was the brother of the deceased. He
deposed that his sister’s marriage was solemnized on the 29 day
of Baisakh, 1418 B.S. He further deposed that after the
marriage there was a dispute concerning the articles which had
been presented to Sushila. He reiterated that on 10th day after
their marriage Sushila and her husband had come to her
parental house. He deposed that Sushila disclosed to her
mother in his presence that her husband and in-laws had
abused and taunted her and revealed their dislike towards the
articles which had been presented to them at the time of the
marriage. He further deposed that all the accused persons
inflicted mental torture upon her. He deposed that Sushila had
come to their house to reside for two days. However, at noon on
the day of her departure, Sushila set herself on fire. He deposed
as the complainant had, that he and his father had put out the
fire. He had taken Sushila to the Mathabhanga Hospital and
thereafter to the Siliguri Hospital for better treatment. Sushila
was released after 8 or 9 days of treatment at the Siliguri
Hospital. However, upon return her health severely deteriorated.
Sushila was subsequently taken to the Cooch Behar hospital
where she ultimately died. In cross-examination, he stated that,
the matrimonial house of Sushila was a distance of 5/6 miles
from his house. He further deposed that after marriage he had
gone on one solitary occasion to the matrimonial home of
Sushila. He also deposed that he had taken Sushila for
treatment to the different hospitals. He also stated that he had
taken Sushila to the hospital at Cooch Behar where she
ultimately expired. He denied that his evidence was false. He
deposed that it was not a fact that the marriage of Sushila and
the appellant No.1 the husband were solemnized against the
willingness and consent of Sushila. He deposed that it was not a
fact that he and his parents had made any false statement to
implicate the accused persons.
PW-3 (Laxmibala Barman), was the mother of Sushila. She
deposed that her daughter had died after sustaining burn
injuries at her home. She deposed that the appellant No.1 and
the appellant No.2 had picked disputes on the very night of
marriage after completion of marriage ceremony in respect of
presentations that had been given to Sushila at the time of her
marriage. She deposed that Sushila has returned home after 10
days of her marriage and on the 11th day she had set herself on
fire. She deposed that her husband and son had taken Sushila
first to the Mathabhanga Hospital and then to the Siliguri
Hospital for treatment. However, within three days of her return
her health deteriorated and she was taken to the Cooch Behar
Hospital. She identified the accused persons. She also deposed
that Sushila had set herself on fire being abused and ill-treated
by her husband and her in-laws. In her cross-examination, she
deposed that Sushila studied up to Class-IV and her husband
i.e. the complainant is an agricultural labourer. She also
deposed that the marriage of Sushila was a negotiated one and
all their relatives and neighbours were invited to the marriage.
She deposed that Sushila had set herself on fire in the southern
room of their home. No other article inside the room was burnt
on that occasion. She was unable to identify the name of the
owner of the hired vehicle in which Sushila was taken to the
hospital. She deposed that she had not gone to the police
station. She deposed that at the sight of Sushila’s burning she
became unwell and lost her senses. She regained her senses in
the afternoon. She deposed she had not given any false
statement. She reiterated that Sushila had set herself on fire
primarily because of the torture and ill-treatment meted out to
her at the hands of the appellant husband and his parents. She
reiterated that they were not happy with the presentations that
had been made to Sushila at the time of her marriage.
Next, PW-4 (Ranjan Barman), a cousin of the deceased victim
deposed that Sushila was married to Ratan Roy Dakua. After
completion of the marriage ceremony, on that very night, Ratan
Roy the appellant No.1 husband and his mother being the
appellant No.2 complained in respect of the articles of
presentation. They abused Sushila and criticised all the articles
which had been given to them at the time of the marriage. He
further deposed that after 8 or 9 days of marriage Ratan Roy
came to the house with Sushila. Sushila had in front of all the
family members informed them that her in-laws disliked the
articles of presentation and they would abuse and inflict mental
torture on Sushila. Sushila and her husband stayed for two
days at her parental home and they were to return on 11
Jaistha. However, Sushila had set herself on fire in the southern
room of the house. Hearing her screams this witness had gone
to the house of his uncle and he had seen his uncle throw water
to put the fire off. Subsequently, he had arranged a hired
vehicle which had taken Sushila to the Mathabhanga S.D.
Hospital. Sushila was admitted to the hospital. Thereafter, on
the advice of the doctor, she was shifted to Siliguri hospital for
better treatment. He had subsequently visited the police station
with the complainant and filed the complaint. After Sushila was
released from Siliguri hospital she returned home but her
condition deteriorated after two days. Thereafter, she was taken
to Cooch Behar M.J.N. hospital where she expired. Her body
was handed over to the family members and he had participated
in the cremation of Sushila. He had signed the seizure list which
also contained an invitation card. He was interrogated by the
police. In cross-examination, he deposed that he owned a shoe
shop at a distance of about ½ kilometre from his uncle’s home
and his dwelling house was 2/3 bighas away from the house of
the complainant. He had gone to his uncle’s house when
Sushila had set herself on fire and had subsequently taken her
to the hospital. He had visited the police station with his uncle.
He stated that he had not given any false evidence. He further
stated that Sushila had informed him and the other family
members that her in-laws disliked the articles of presentation
and they abused and inflicted mental torture upon Sushila.
PW-5 (Binoy Barman) drafted the FIR on the instructions of the
complainant, Sunanda Barman. He then read the contents
thereof to the complainant. In cross-examination, he reiterated
that the FIR was drafted by him upon the instructions of the
complainant.
PW-6 (Rajendra Raj Sundas) was a member of the West Bengal
Civil Service (Executive). He was posted at Mathabhanga S.D.O.
Office as a Deputy Magistrate and Deputy Collector at the
relevant point of time. He recorded the dying declaration of
Sushila. He had attended the patient on bed No.Extra-7 of the
female ward. Dr. Pradipta Chakraborty, the Emergency Medical
Officer and a staff nurse namely, Smt. Sabita Saha were present
at that time. The patient was identified as Sushila Barman – 19
years. He had recorded the dying declaration of Sushila in the
presence of the doctor and the staff nurse. In the dying
declaration, Sushila had stated she had been married recently.
She further said that her husband and in-laws had been
torturing her since her marriage began, demanding money. She
further stated that her husband used to beat her. She stated
that she was not given food and her in-laws were not good to
her. She reiterated that they had told her repeatedly to go back
to her father’s house. She stated that the injuries she received
were by pouring kerosene oil on her body and setting herself on
fire. Before starting with the recording of the statement, Dr.
Pradipta Chakraborty certified the mental fitness of the patient
on the prescribed format. He signed the fitness certificate in the
presence of witnesses with the official seal. This witness further
deposed that he had complied with all the formalities and had
also recorded the statement of the staff nurse Sabita Saha who
had signed as a witness in his presence. Thereafter, this witness
signed on the dying declaration (Exhibit-3) in the prescribed
format. In cross-examination, this witness further deposed that
the format for recording the dying declaration was supplied by
his office. He further deposed that the Mathabhanga police
station S.D.O. instructed him to record the dying declaration.
He was entrusted officially by the S.D.O. He had written the
G.D. number on the dying declaration. Though, he had not
recorded the dying declaration in the version and language of
the victim i.e. Bengali he had translated the same. He had heard
the entire statement of the victim. He had also read out and
explained to the victim her dying declaration. He stated that
though Bengali was not his mother language, he could
understand the same. He reiterated that he had recorded the
statement of the victim verbatim.
PW-7 (Smt. Sabita Saha). This witness is a Government
employee who was posted at Mathabhanga S.D. Hospital as a
staff nurse at the relevant point of time. Whilst on duty, she had
attended the patient namely, Sushila Barman in the female
ward. She also deposed that at the relevant point of time Dr.
Pradipta Chakraborty was the Emergency Medical Officer. He
was also by the side of patient. She deposed that, the Executive
Magistrate from Mathabhanga S.D.O office came for recording
the dying declaration of Sushila Barman. She had identified the
patient to the Magistrate. The statement of the patient was
made in her presence and was recorded by the Magistrate. This
witness had signed on the dying declaration. She identified the
signature on the dying declaration. In cross-examination, she
deposed that Sushila was not known to her earlier. She had not
been interrogated by the police. She further deposed that she
had identified the patient namely Sushila Barman to the
Magistrate.
PW-8 (Dr. Pradipta Chakraborty) is a member of the West
Bengal Health Service who was posted at Mathabhanga S.D.
Hospital as the medical officer at the relevant point of time. On
the date of the incident, he was on official duty at the hospital.
He examined Sushila Barman at that hospital. The patient had
been admitted with burn injuries and was under his treatment.
He prepared the injury report on the basis of medical
examination and clinical observations. His findings and
observations are there in the medical report marked as Exbibit-
4. Thereafter, the patient was referred to M.J.N. Hospital, Cooch
Behar for better treatment and management. The dying
declaration of the patient was recorded by the Magistrate in his
presence. He had given a certificate as to the mental fitness of
the patient in respect of her dying declaration and this had been
noted by the Magistrate. The certificate was written and signed
by him. The declaration was recorded prior to referring the
patient to M.J.N. Hospital. In cross-examination, he deposed
that he had examined the patient medically in the course of his
duty at the emergency ward. He reiterated that the dying
declaration was made in his presence. He also reiterated that,
his certificate as to the fitness of Sushila was in accordance
with medical science and not otherwise.
PW-9 (Aftab Ahmed) is a member of the West Bengal Civil
Service and was the Executive Magistrate, Cooch Behar at the
relevant point of time. He conducted the inquest over the dead
body of Sushila the deceased victim at the M.J.N Hospital,
Cooch Behar. He prepared his inquest report in presence of
witnesses which was signed in his presence.
PW-10 (Dr. Amal Bashak). He is a doctor and was posted at the
M.J.N. Hospital, Cooch Behar at the relevant point of time. He
had conducted the post-mortem examination over the dead
body of Sushila Dakua. The dead body was identified to him by
the constable. He had prepared the post-mortem examination
report and had noted the findings and observations as stated in
the post-mortem examination. He was of the opinion that the
death of Sushila had been caused due to shock and sepsis from
the burn injuries. In cross-examination, he repeated and
reiterated that the contents of the inquest report prepared by
him were true and correct. He deposed that he had made his
findings and observations during the post-mortem examination
and on the basis thereof he prepared the post-mortem report.
PW-11 (Raju Roy). He was the Assistant Sub-Inspector of Police
at the Kotowali P.S. Cooch Behar. On 9 June, 2011 he was
entrusted with the inquiry in respect of U.D. Case No.264/11.
He had visited the female burn ward at the M.J.N Hospital,
Cooch Behar. He held the inquest over the dead body of the
deceased in the presence of the witnesses and prepared the
inquest report. He identified his signature in the inquest
(Exhibit-6). He thereafter, prepared the dead body challan and
despatched the dead body to the morgue (Exhibit-7). He had
made preliminary inquiries about the dead body of the victim
and incorporated the results at the time of preparing the
inquest report.
PW-12 (Abhijit Dutta). He was the Sub-Inspector of Police and
was posted at Mathabhanga P.S. as S.I of police at the relevant
point of time. He had visited the P.O. and a rough sketch map
with index was prepared and signed by him (Exhibit-8). He had
interrogated and recorded the statements of the witnesses
under Section 161 Cr.P.C. He had seized several documents and
prepared a seizure list (Exhibit-2). He had gone to the accused
persons. He had made a request for recording the dying
declaration of the victim which was recorded by the Magistrate.
He had collected the dying declaration during investigation and
had conducted all necessary inquiries in accordance with law.
He had completed the investigation and submitted the charge
sheet. He identified and arrested the accused persons. In cross-
examination, he reiterated that he had conducted the entire
inquiry after completing all the prescribed formalities. He
deposed that he had not seized any article of presentation. He
further deposed that it was not a fact that the charge sheet has
been submitted on the basis of perfunctory materials and
substances collected during investigation.
11. The relevant provisions of law which arise for
consideration in this case are extracted hereunder:
S.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, (28
of 1961).
(2) Whoever commits dowry death shall be
punished with imprisonment for a term which
shall, not be less than seven years but which may
extend to imprisonment for life.
S.498A. Husband or relative of husband of a
woman subjecting her to cruelty. – Whoever,
being the husband or the relative of the husband
of a woman, subjects such woman to cruelty shall
be punished with imprisonment for a term which
may extend to three years and shall also be liable
to fine.
Explanation.-For the purpose of this section,
“cruelty” means-
(a) any wilful conduct which is of such a nature
as is likely to drive the woman to commit suicide
or to cause grave injury or danger to life, limb or
health (whether mental or physical) of the woman;
or
(b) harassment of the woman where such
harassment is with a view to coercing her or any
person related to her to meet any unlawful
demand for any property or valuable security or is
on account of failure by her or any person related
to her to meet such demand.
S.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 parents 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.
S.113B. Presumption as to dowry death. –
When the question is whether a person has
committed the dowry death of a woman and it is
shown that soon before her death such woman
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.
S.32 Cases in which statement of relevant
fact by person who is dead or cannot be
found, etc., is relevant. – Statements, written or
verbal, of relevant facts made by a person who is
dead, or who cannot be found or who has become
incapable of giving evidence, or whose attendance
cannot be procured, without an amount of delay
or expense, which under the circumstances of the
case, appears to the court unreasonable, are
themselves relevant facts in the following cases:
(1) When it relates to cause of death. – When the
statement is made by a person as to the cause of
his death, or as to any of the circumstances of the
transaction which resulted in his death, in cases
in which the causes of that person’s death comes
into question.
Such statements are relevant whether the person
who made them was or was not, at the time when
they were made, under expectation of death, and
whatever may be the nature of the proceeding in
which the cause of his death comes into question.
12. To establish the offence under Section 304B IPC, the
prosecution has to prove beyond reasonable doubt that the
husband or his relative had subjected the deceased to cruelty
or harassment in connection with the offence of dowry death
soon before her death. As has been laid down in Smt.
Shanti and Another vs. State of Haryana reported in
(1991) 1 SCC 371
“A careful analysis of Section 304B shows that this section has
the following essentials:
(1) The death of a woman should be caused by burns,
bodily injuries or otherwise than under normal
circumstances;
(2) Such death should have occurred within seven years of
her marriage;
(3) She must have been subjected to cruelty or
harassment by her husband or any relative of her
husband;
(4) Such cruelty or harassment should be for or in
connection with demand for dowry”
13. In order to establish the offence under Section 498A of
the IPC, the prosecution has to prove beyond reasonable
doubt that the husband or his relative has subjected the
victim to cruelty. As has been held in State of Punjab vs.
Iqbal Singh and Others (1991) 3 SCC 1 at para 6. “Section
498A came to be introduced whereunder ‘cruelty’ by the
husband or his relative to the former’s wife is made a penal
offence punishable with imprisonment for a term which may
extend to three years and fine. The explanation to the section
defines ‘cruelty’ to mean (i) wilful conduct which is of such a
nature as is likely to drive the woman to commit suicide or to
cause grave injury or danger to her life, limb or health or (ii)
causing harassment of the woman with a view to coercing
her or any person related to her to meet any unlawful
demand for any property or valuable security. Thus, under
this provision if a woman is subjected to cruelty by her
husband or his relative it is a penal offence and by the
insertion of Section 198A in the Code of Criminal Procedure
a court can take cognizance of the offence upon a police
report or upon a complaint by the aggrieved party or by the
woman’s parents, brother, sister, etc. The offence is made
non-bailable.”
14. As has been held in Smt. Shanti and Another vs.
State of Haryana reported in (1991) 1 SCC 371 (paragraph
4) “Section 113B of the Evidence Act lays down that if soon
before the death such woman has been subjected to cruelty
or harassment for or in connection with any demand for
dowry, then the court shall presume that such person has
committed the dowry death. The meaning of ‘cruelty’ for the
purposes of these sections has to be gathered from the
language as found in Section 498A and as per that section
‘cruelty’ means ‘any wilful conduct which is of such a nature
as is likely to drive the woman to commit suicide or to cause
grave injury or danger to life etc. or harassment to coerce her
or any other person related to her to meet any unlawful
demand for any property or valuable security or is on
account of failure by her or any person related to her to meet
such demand’. As per the definition of ‘dowry’ any property
or valuable security given or agreed to be given either at or
before or any time after the marriage, comes within the
meaning of ‘dowry’.
15. In Sher Singh vs. State of Haryana reported in
(2015)3 SCC 724 at para 25 it has been held that “The
fundamental and vital question that the Court has to ask
itself and find a solid answer to, is whether the evidence even
preponderantly proves that the appellant had treated the
deceased with cruelty connected with dowry demands. It is
only if the answer is in the affirmative will the court have to
weigh the evidence produced by the appellant to discharge
beyond reasonable doubt, the assumption of his deemed
guilt.”
16. In the aforesaid backdrop, I will now examine the rival
contentions of the parties, the evidence and the impugned
judgment. A crucial aspect in this case is the dying
declaration recorded by PW-6, the Deputy Magistrate and
Deputy Collector the contents whereof are reproduced herein
below:
“I have married recently. My husband and my in-laws
have been torturing me since my marriage of 13 days
demanding money. My husband used to beat me. I was
not given food. My in-laws are not good. They told me to
go to my father’s house.”
17. In Atbir v. Govt. (NCT of Delhi) after an elaborate
consideration of several decisions of the Hon’ble Supreme
Court of India, the following propositions have been laid
down with regard to the admissibility of a dying declaration:
(SCC pp. 8-9, para 22)
“22. The analysis of the above decisions clearly shows that:
(i) Dying declaration can be the sole basis of
conviction if it inspires the full confidence of the
court.
(ii) The court should be satisfied that the deceased
was in a fit state of mind at the time of making
the statement and that it was not the result of
tutoring, prompting or imagination.
(iii) Where the court is satisfied that the declaration
is true and voluntary, it can base its conviction
without any further corroboration.
(iv) It cannot be laid down as an absolute rule of law
that the dying declaration cannot form the sole
basis of conviction unless it is corroborated. The
rule requiring corroboration is merely a rule of
prudence.
(v) Where the dying declaration is suspicious, it
should not be acted upon without corroborative
evidence.
(vi) A dying declaration which suffers from infirmity
such as the deceased was unconscious and
could never make any statement cannot form the
basis of conviction.
(vii) Merely because a dying declaration does not
contain all the details as to the occurrence, it is
not to be rejected.
(viii) Even if it is a brief statement, it is not to be
discarded.
(ix) When the eyewitness affirms that the deceased
was not in a fit and conscious state to make the
dying declaration, medical opinion cannot
prevail.
(x) If after careful scrutiny, the court is satisfied
that it is true and free from any effort to induce
the deceased to make a false statement and if it
is coherent and consistent, there shall be no
legal impediment to make it the basis of
conviction, even if there is no corroboration.”
18. In the light of the medical evidence is an indisputable
fact that the deceased died out of burn injuries after she had
attempted to set herself on fire. Admittedly, she had been
married for 13 days. There is otherwise sufficient credible
oral evidence corroborated of all the witnesses, including the
dying declaration of the deceased, which would go to show
that she had been subjected to cruelty, harassment and
dowry demands. The witnesses include the father of the
deceased (PW-1), the brother of the deceased (PW-2), her
mother (PW-3) and her cousin (PW-4) and all corroborated
the fact that the deceased had been subjected to dowry
demands, cruelty and harassment at the hands of her in-
laws and her husband. There is nothing to contradict the fact
that presentations were made to the deceased at the time of
the marriage. There is sufficient evidence which has been
duly corroborated to the effect that the husband and the in-
laws were not happy with the presentations that had been
given during the time of their marriage. The dying declaration
was recorded by the PW-6, Deputy Magistrate Collector
and was duly proved in accordance with law. Independent
and disinterested witnesses to the dying declaration namely
the staff nurse (PW-7) and the doctor on duty (PW-8) have
corroborated the recording of the dying declaration. There is
no evidence that the medical staff had any animosity towards
the accused persons.
19. I also find that the dying declaration of Sushila is
creditworthy and reliable. She was in a fit mental state to
depose. The prescribed statutory formalities relating to dying
declarations had been fully complied with. The dying
declaration was true, voluntary and has total clarity in its
contents. It is not a case where the deceased was either
rambling, unsound or had contradicted herself. The evidence
of PW-7 (Smt. Sabita Saha) and PW-8 (Dr. Pradipta
Chakraborty) who had treated Sushila indicate that at the
time of making the statement she was in a fit condition.
Their evidence is legally admissible with regard to the
capacity of the victim to make the dying declaration.
20. On careful scrutiny, I am satisfied that the dying
declaration of Sushila is coherent, consistent and free from
any efforts to induce the deceased to make any false
statement. Accordingly, there is no legal impediment in
accepting the dying declaration of Sushila.
21. After returning to the parental house the deceased had
disclosed that her in-laws were unhappy with the
presentations made by her family at the time of the marriage.
The victim had experienced mental torture and cruelty
inflicted on her by the accused persons. She had become
mentally upset and decided to commit suicide and ultimately
set herself on fire. Admittedly, she died due to the burn
injuries. There is no reason to disbelieve the witnesses who
had deposed in the instant case. The cross-examination of
the witnesses in no manner had shaken their evidence.
22. I am satisfied that the prosecution has established
beyond all reasonable doubt that the appellants treated the
deceased Sushila with cruelty and the same squarely comes
within the meaning of ‘cruelty’ which is an essential
ingredient under Section 304B and Section 498A of the IPC.
The evidence of the witnesses further goes to show that such
cruelty was and in connection with the demand for dowry. It
is also an admitted fact that Sushila’s death occurred within
seven years of marriage. Sushila’s death occurred due to
burn injuries. There is also a proximate and live link between
the effect of cruelty based on dowry demands and the
unnatural death of Sushila. Thus, the presumption under
Section 113B of the Evidence Act, 1878 is squarely attracted
and there was no rebuttal by the defence.
23. For the foregoing reasons, I am of the view that Section
498A, IPC is also attracted.
24. Dowry killing is a crime and menace of its own kind.
This requires to be eliminated from society. The legislative
intent is clear and that is to curb the menace of dowry death
with a firm hand. As has been held in State of Karnataka
vs. M.V. Manjunathegowda and Another reported in
(2003) 2 SCC 188 (para 25) that: “The practice of giving and
demanding dowry is a social evil having deleterious effect on
the entire civilized society and has to be condemned by the
strong hands of the judiciary. Despite various amendments
providing deterrent punishment with a view to curb the
increasing menace of dowry deaths, the evil practice of dowry
remains unabated. The Court cannot be oblivious to the
intendment of the legislature and the purpose for which the
enactment of the law and amendment has been effected.
Every court must be sensitized to the enactment of the law
and the purpose for which it is made by the legislature,
keeping in view the evil practice of giving and taking dowry,
which is having a deleterious effect on the civilized society. It
must be given a meaningful interpretation so as to advance
the cause of interest of the society as a whole. No leniency is
warranted to the perpetrator of the crime against the
society.”
25. It has been argued on behalf of the appellants that the
shortness of duration of the marriage was such that there
could not have been any cruelty inflicted on the deceased
Sushila. I am of the view that there is no substance in this
argument. “Days or months are not what is to be seen. Time
lags may differ from case to case. All that is necessary is that
the demand for dowry or the cruelty or harassment meted
out to the deceased must not be stale but should be a
continuing cause for the death of a married woman under
Section 304B”. Rajinder Singh vs. State of Punjab (2015)
6 SCC 477 (para 24).
26. As has been held in Baijnath and Ors. Vs State of
Madhya Pradesh (2017) 1 SCC 101 (para 27) the
expression cruelty as explained, contains in its expanse,
apart from the conduct of the tormentor, the consequences
precipitated thereby qua the lady subjected thereto. “Be that
as it may, cruelty or harassment by the husband or any
relative of his for or in connection with any demand of dowry
to reiterate is the gravamen of the two offences”.
27. On an overall scrutiny of the evidence as a whole in my
view the conviction of the appellants being the husband and
the mother-in-law respectively of the victim is fully justified
in the facts and circumstances of the instant case. To
reiterate, the prosecution has successfully managed to prove
the crucial ingredients of cruelty, harassment and dowry
demand beyond reasonable doubt. Accordingly, the pre-
conditions having been complied with the benefit of the
statutory presumption under Section 113B of the Evidence
Act has been correctly and justifiably invoked.
28. Hence, the conviction of the appellants is upheld.
However, keeping in view the age of the mother-in-law being
the appellant No.2, I am inclined to reduce her substantive
sentence to rigorous punishment to 7 years. Sentence of
appellant No.1 shall remain unchanged. Needless to
mention, the period of detention already spent by the
appellants be taken into account in respect of the
punishment awarded in terms of the instant judgment.
29. With the aforesaid modification as to quantum of
sentence, the instant appeal is dismissed. The bail bonds of
the appellant No.2, namely, Juthika Roy Dakua are cancelled
and she is directed to surrender forthwith before the Trial
Court and serve out the sentence failing which the Trial
Court shall issue appropriate processes to execute her
sentence in accordance with law. The period of detention
suffered by the appellants during investigation, enquiry or
trial shall be set off under Section 428 of the Code of
Criminal Procedure.
30. A copy of the judgment along with the Lower Court
Records be sent back to the Court below at once. The
certified copy of this order, if applied for, be given to the
parties on priority basis upon compliance of all formalities.
I agree.
(Joymalya Bagchi, J.) (Ravi Krishan Kapur, J.)
