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Sk. Rabi @ Rabiul vs The State Of West Bengal on 24 April, 2017

IN THE HIGH COURT AT CALCUTTA
(CRIMINAL APPELLATE JURISDICTION)
C.R.A No. 282 of 2016
With
C.R.A.N. No. 1048 of 2017

Sk. Rabi @ Rabiul
Vs.
The State of West Bengal

Present : The Hon’ble Justice Siddhartha Chattopadhyay

For the Appellant : Mr. Debasish Roy,
Mr. Anirban Mitra,
Ms. Nipa Mallick,
Ms. Issita Paul.

For the State : Mr. Prasun Kr. Dutta, A.P.P.,
Mr. Aniket Mitra,
Mr. Imran Ali.

Heard On : 07.04.2017, 10.04.2017.

C.A.V. On : 10.04.2017.

Judgment Delivered On : 24.04.2017.

Siddhartha Chattopadhyay, J.:

The appellants herein challenged the judgment and order of conviction

dated 07.04.2016 and 08.04.2016 passed by the Additional Sessions Judge

1st Court, Contai, Purba Medinipur in Sessions Trial No. X/March 2011.

From the impugned judgment, it appears that the learned trial court found

the appellants guilty and they were directed to suffer rigorous imprisonment

for seven years each for committing the offence under Section 304B of I.P.C.

and also to suffer rigorous imprisonment for two years each for the offence

committed under Section 498A of I.P.C.
2. According to the appellant, the learned trial court ought to have

held that there was no dowry death at all in view of the ingredients as laid

down in Section 304B of I.P.C.

3. To appreciate the grievance of the appellants, the prosecution case

needs to be revisited. The prosecution case in a capsulated form is such that

marriage between the victim and the appellant No. 1 was held on

22.10.2008

as per Muslim Rites and Ceremonies. At the time of said

marriage, the victim’s father had given valuables and cash of Rs.50,000/- as

demanded by the appellant No. 1 and also promised to pay of Rs.10,000/-

more after the said marriage. After a few days the appellant No. 1 started

assaulting the victim for non-payment of Rs.10,000/-. Time to time the

appellants provoked her to bring that money from her parents’ house.

Considering the poverty of the complainant, victim initially did not divulge

her agonies to her parents. However, after coming to know about the alleged

torture for dowry, the parents and some other villagers went to the house of

the appellants to pacify them. On 15.02.2009, the victim found the

appellant No. 1 in a compromising position with his boudi (appellant No. 6).

Being aggrieved at it, the victim reported this ill-episode to her mother. Out

of grudge, for such disclosure of that ill-episode, the appellant No. 1

mercilessly had beaten her up. On the next day, the complainant came to

know that her daughter breathed her last.

4. After registration of the F.I.R. the investigating agency came into

operation. In course of investigation, the Investigating Officer recorded the

statement of the available witnesses under Section 161 Cr.P.C., collected
inquest report and post mortem report and thereafter submitted charge-

sheet under Section 498A/304A of I.P.C. Pursuant to the charge-sheet

submitted by the Investigating Officer, the accused persons were put on

trial.

5. To come to a finding we should have a look upon the evidence of the

prosecution witnesses. Prior to going through the evidence it has to be kept

in mind that to constitute the offence under Section 304B of I.P.C., the

death of woman must be otherwise than under normal circumstances and it

must be within seven years of her marriage and at the same time it has to

be 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. The dowry as mentioned in Section

304B of I.P.C. shall have the same meaning as in Section 2 of the Dowry

Prohibition Act 1961.

6. On perusal of the evidence of all the prosecution witnesses two

ingredients of the offences have been amply proved. Nobody disputed that

the victim died within a few months from the date of her marriage. Post

mortem report goes to suggest that it was a suicidal death caused by

hanging i.e. otherwise in normal circumstances. So these two ingredients

have been established from the prosecution witnesses.

7. At the same time to constitute the offence under Section 304B it

has to be shown that soon before her death she was subjected to cruelty or

harassment by her husband and other relatives and that must be for any
demand for dowry. In such circumstances, evidence of prosecution

witnesses in regard to this aspect is to be scrutinized very meticulously.

8. The P.W. 1 is the father of the victim. In course of examination-in-

chief, he stated that he had gifted the articles in the marriage of his

daughter and that there was a demand of Rs.50,000/- but he had paid

Rs.40,000/- in cash and assured that remaining 10,000/- would be paid

later. But since that was not paid the victim was subjected to torture

physically and mentally. Thereafter, the appellants demanded 40,000/-

more and the victim was pressurised for bringing of Rs.40,000/- + former

dues of Rs.10,000/-. After such demand was made by the appellants, the de

facto complainant and his villagers went to the house of the accused

persons and called for interference of the local panchayat. The appellants

assured that torture will not be perpetrated upon her. But their assurance

was not given effect to. She was again tortured. The de facto complainant

sought for intervention of local panchayat again. All these happened within

three months of the marriage. Thereafter, on 3rd Falgun of 1415 BS the

victim noticed that her husband had illicit affairs with his Boudi. She

reported this incident to her father-in-law and also her mother and at that

time the appellants assaulted her. In course of cross-examination the de

facto complainant made contradictory statements. According to him, after

ten to twelve days of victim’s marriage, the victim and her husband came to

his house for the last time. The victim died within five months from her

marriage. If his such statement is taken into consideration then in that case

it can be safely hold that his daughter and son-in-law did not visit his house
within last four months of their marriage. He also candidly stated that he

also visited the house of the appellant just 17/18 days before the death of

the victim. It is admitted by this P.W. 1 that when his daughter reported him

about the alleged torture and assault, he did not inform local police station

or the panchayat, although in his chief he has stated that he sought for

intervention of the panchayat. In his cross-examination he also stated that

salishi took place for the first time after two months in the house of the

appellants. But this part of his such evidence has not been corroborated by

any other witnesses. So from his evidence it does not transpire that soon

before her death she was subjected to cruelty or harassment by the

appellant in connection with any demand for dowry. If at all dowry was

demanded that was nearly four to five months back from the death of the

victim. He, however, firmly stated about the illicit relationship between the

appellant No. 1 and appellant No. 6.

9. The P.W. 2, is the mother of the victim. Her examination-in-chief is

almost the replicated version of the F.I.R. But in cross-examination, she

categorically admitted that her daughter never informed her demand of

money by coming to their house. It also transpired from her evidence that

her daughter and son-in-law came to her house only twice from the date of

marriage to the date of death. Rest part of her evidence was in the form of

denial only.

10. The P.W. 3, deposed in this case and he never claimed that he saw

the incident of torture. According to him, there was a salishi in presence of
panchayat but no other witnesses stated about any salishi alleged to have

been held regarding this family dispute.

11. The P.W. 4, has tried to improve the case by saying in his

examination-in-chief that he was present when the victim told her parents

about the torture and that was after two months from the date of marriage.

But the evidence of P.W. 1 is something else. According to him, that after ten

to twelve days of the victim’s marriage, the victim and the appellant No. 1

came to his house for the last time. Therefore, victim’s presence in the house

of the complainant after two months seems to be unbelievable. He again

stated that after five to six days when he was present in house of the

complainant, there was a telephonic call from the victim. But his such part

of his evidence has not been corroborated either by P.W 1 or P.W. 2.

12. The P.W. 5, candidly stated that he does not know the cause of

her committing suicide.

13. The P.W. 6, has also tried to establish a case that a salishi took

place, but it has been negated by the mother of the victim in course of cross-

examination. However, he admitted that the victim did not say anything to

him.

14. The P.W. 7 and the P.W. 8 are the witnesses to the inquest. P.W. 8

only added that he does not know the cause of her committing suicide.

15. The P.W. 9, is a witness to the seizure. He does not have any

personal knowledge regarding the alleged incident.

16. The P.W. 10, held inquest of the victim and proved the same. P.W.

11, is the scribe. According to him, as per instruction of the complainant he

had detained it.

17. The P.W. 12, is the Investigating Officer of this case. In course of

cross-examination, he candidly stated that the P.W. 2 never told him that

after getting the information about the death of her daughter, he went to the

house of the accused persons along with local people nor did she say that

there was a demand of Rs.60,000/- out of which Rs.50,000/- was paid and

Rs.10,000/- was due. He has further stated that P.W. 2 never told him that

any demand of Rs.40,000/- was made. According to him, P.W. 4 never told

him that after the demand of money by the accused persons, he along with

the victim’s parents went to the house of the appellants. The said P.W. 4

never told him that after five to six days of settlement of the dispute he was

present in the house of the complainant and at that time he received a

telephone call. Therefore, the evidence of P.W. 2 and P.W. 4 cannot be

accepted as a gospel truth because there are vital omissions and

contradictions in their testimonies. Practically there is no evidence that soon

before her death (i.e. suicide) the victim was physically and mentally

tortured for dowry. It is in evidence that nearly four months back, since the

date of incident, the victim was tortured. But there is no evidence that at

that point of time she was tortured due to non-fulfilment of payment of

dowry. It is true that in Section 304B of I.P.C. there is no time limit as to

when it will be presumed as ‘soon before her death’. At the same time the

words used in the section ‘soon before her death she was subjected to
torture for demand of dowry’. Therefore, if at all any dowry demand was

placed four months back and the victim committed suicide after four

months from the alleged demand of dowry that does not come within the

purview of ‘soon before her death’. On the contrary, it is established from

the evidence that the appellant No. 1 had illicit affairs with the appellant No.

6 and the victim had seen the appellant No. 1 with a compromising position

with his boudi. She might have divulged this incident to her kiths and may

be to her matrimonial inmates. A newly married lady when sees her

husband is having an extra-marital affairs with a lady, she might have

suffered a huge mental shock which might have led her to commit suicide. It

is not unusual because it depends on the mental perception and level of

tolerance of a person concerned. But such extra-marital affairs cannot come

within the purview of Section 304B of I.P.C.

18. Considering all these aspects, I am of the view there is no evidence

that soon before her death she was subjected to torture for demand of

dowry. The learned Trial Court has lost sight of this aspect. Having regard to

the facts and circumstances of the case, this Court is of the view that the

prosecution hopelessly failed to substantiate the ingredients of ‘dowry death’

in terms of Section 304B of I.P.C.

19. Accordingly, the judgment and order of conviction recorded by the

learned trial court are hereby set aside. The appellants are in custody and

so they be set at liberty at once. Since the appeal is disposed of the

application bearing no C.R.A.N. 1048 of 2017 has become infructuous and it

is also disposed of.

20. Let a copy of this order be sent to the learned trial court for

information and taking necessary action. He is further directed to send a

copy of this judgment to the jail authority for release of the appellants,

unless their detention is required in connection with other cases, if any. Let

the L.C.R. be sent down at once.

21. Urgent certified photocopy of this order, if applied for, be supplied

to the parties upon compliance with all requisite formalities.

(SIDDHARTHA CHATTOPADHYAY, J.)
A.F.R/N.A.F.R.

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