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Somenath Jana vs The State Of West Bengal on 22 June, 2018

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. 608 of 2013 [renumbered as CRA 68/2017]
Somenath Jana ……………….. Appellant
-vs-
The State of West Bengal………Respondent

With
C.R.A No. 765 of 2013
Bijay Krishna Chowdhury…………….Appellant

-vs-

The State of West Bengal Ors. ……..Respondent

For the Appellant : Mr. Milon Mukherjee….Sr. Advocate
In CRA 608 of 2013 : Mr. Biswajit Manna…..Advocate

For the Appellant : Mr. Shiladitya Sanyal….Sr. Advocate
In CRA 765 of 2013 : Mr. Kaushik Gupta……Advocate
: Mr. Arijit Bhusan Bagchi….Advocate

For the State : Mr. Saswata Gopal Mukherjee…..Ld. P.P.
In CRA 608 of 2013 : Mr. Saryati Datta…….Advocate
CRA 765 of 2013 : Mr. Ranabir Roy Chowdhury…Advocate

Judgement on : 22.06.2018

Ravi Krishan Kapur, J.:

1. Both these appeals arise from the same order and are taken up for hearing

in terms of the earlier orders passed by this Hon’ble Court. These appeals are

directed against the judgment and order dated 20 July, 2013 passed by the
Learned Additional Sessions Judge, Second Court, Barasat, North 24 Parganas in

Sessions Trial No.05(07)/2011 arising out of Sessions Case No.07(01)/2011. In

CRA 608 of 2013, the appeal is preferred against the conviction of the appellant

husband, Somenath Jana under Section 498A/304B of the Indian Penal Code.

The connected appeal being CRA No.765 of 2013 has been preferred against the

same judgment and order insofar as it acquits the other accused persons i.e. the

in-laws of the deceased daughter-in-law.

2. By the impugned order the appellant husband has been convicted of

offences punishable under Sections 498A and 304B of the Indian Penal Code and

has been directed to undergo rigorous imprisonment for 3 years for the offence

under Section 498A and to pay a fine of Rs.2000, in default of payment of fine to

suffer rigorous imprisonment for 3 months. The appellant husband has also been

sentenced to rigorous imprisonment for 7 years and has been directed to pay a

fine of Rs.5000, in default to suffer further rigorous imprisonment for 6 months

of the offence punishable under Section 304B Indian Penal Code. Both the

sentences have been directed to run concurrently.

3. Shorn of details, the case of the prosecution against the appellant husband

and the other accused persons being his parents Namita Jana and Kanailal Jana

i.e. mother-in-law and father-in-law of the deceased respectively is to the effect

that the appellant husband was married to one Minakshi and she was subjected

to cruelty and dowry demand by her husband and her in-laws. It is alleged that

as a result of torture she died and her death was caused by hanging amounting

to dowry death for which all three accused persons have been charged under

Section 498A and 304B of the Indian Penal Code (IPC).

4. On 14 October, 2010, Bijay Krishna Chowdhury, father of the deceased

Minakshi lodged a complaint with Barasat P.S. on the basis of which the First

Information Report was drawn up and Barasat P.S. Case No.1848 dated 14

October, 2010 was registered. In the written complaint filed by Bijay Krishna

Chowdhury it was alleged that his daughter was married to the appellant

husband and out of their wedlock two sons were born. After six months of their

marriage Minakshi was subjected to torture, cruelty and dowry demands. The

specific allegation in the complaint is that Minakshi was subjected to mental

torture by her parents-in-law and Somenath never protested the torture by his

parents. Minakshi would on occasions visit the complainant and his family. On

14 October, 2010 at 6.00 pm, the complainant was informed by the appellant

husband that Minakshi has died due to hanging and he immediately rushed to

the matrimonial house. On arrival, the complainant found Minakshi lying in the

bed and a piece of curtain cloth was hanging on the ceiling fan. It is also alleged

in the complaint that certain gold articles, furniture and cash etc., were given to

the accused persons. It is an admitted fact and this would also be borne out

inter-alia from the post-mortem report that Minakshi had committed suicide and

her death was caused due to hanging.

5. Upon receipt of the complaint the police investigated the case and

submitted a charge-sheet against the three accused persons. The case was

committed to the Court of Sessions, North 24 Parganas and thereafter

transferred to the Additional Sessions Judge, Second Court, Barasat for trial and

disposal. Thereafter, charges were framed under Sections 304B and 498A of the

IPC. All the accused persons pleaded not guilty and claimed to be tried.

6. In the course of trial, the prosecution examined 12 witnesses and a

number of documents had been proved as exhibits. The defence did not adduce

any evidence. The defence of the accused persons was one of innocence and false

implication. In examination under Section 313 of the Cr.P.C., after recording of

examination was over the accused persons reiterated that they were innocent

and they have been falsely implicated by the father of the deceased. In conclusion

of the trial, the Trial Judge by a judgment and order dated 20th July, 2013

convicted and sentenced the appellant husband as morefully stated hereinabove.

The other accused persons being the in-laws of the deceased were acquitted of

the charges levelled against them.

7. Hence, the present appeals.

8. Mr. Milon Mukherjee, Senior Advocate appearing for the appellant in CRA

608 of 2013 strenuously argued that in convicting the appellant husband the

Trial Court primarily held that the appellant was guilty of the offence under

Section 304B of the IPC. He further contended that there is nothing in the FIR to

implicate the appellant husband. The only allegation against the appellant

husband is that the appellant husband was a mute spectator to the alleged

cruelty inflicted upon Minakshi. He further contended that the FIR is completely

silent about the alleged demand of Rs.50,000 in cash by the appellant husband

or his family members. The entire story of the alleged demand, according to him,

was belated and an afterthought. He further contended that the entire evidence

of Debasish Bhattacharyya (PW-3) was neither credible nor believable. In

particular, PW-3 had spoken about the demand for a four-wheeler car which was

not even mentioned by the complainant, father of the deceased (PW-1). Similarly,
the evidence of Sanjoy Chakraborty (PW-4) was also not credible. Significantly,

PW-4 had deposed of a Salish (mediation) being held which was not a fact stated

by the father of the deceased PW-1, either in the evidence or in the FIR. Mr.

Mukherjee further contended that the evidence of all the witnesses in the locality

was hearsay. Mr. Mukherjee laid much emphasis on the cross-examination of

PW-3 (Debasish Bhattacharyya) who had stated that “our locality is known as

Chakrabortypara. Myself and the men of the locality were annoyed with the

accused persons all along. We considered them as inferior class of people”. Mr.

Mukherjee also contended that the entire evidence of all the local residents being

PW-3, PW-4, PW-7, PW-8 and PW-10 respectively was neither credible nor

convincing and should not have been given any weight. There is no case made

out either in the FIR or the evidence of any demand for dowry or cruelty. There

are no circumstances relating to torture and the entire case made out for dowry

is weak, unconvincing and nebulous. According to Mr. Mukherjee, the Trial

Court failed to appreciate that there was any incident of dowry demand or cruelty

and the entire evidence in this regard is vague, bereft of particulars, based on

surmises and conjectures. There was no case of torture, leave alone a continuous

case of torture which was been made out either in the FIR or in the evidence of

any of the witnesses.

9. Mr. Shiladitya Sanyal, Senior Advocate appearing for the appellant in CRA

765 of 2013 argued that the Trial Court erred in acquitting the in-laws i.e.

Namita Jana and Kanailal Jana of the deceased. He submitted that there was

sufficient evidence before the Trial Court to convict the in-laws of the deceased.

He further submitted that both in the FIR and the evidence there was
overwhelming evidence to convict the in-laws. He placed reliance on the FIR and

the evidence to show that there were specific allegations of cruelty, torture and

dowry demand made out against both the in-laws. He further submitted that his

appeal should be allowed and the in-laws should also be convicted of the offences

under Section 304B and Section 498A.

10. Before addressing the rival contentions of the parties I think it is

vital to appreciate the evidence of the witnesses in this proceeding.

PW-1 (Bijay Krishna Chowdhury), is the father of the deceased Minakshi

Jana and the de facto complainant in this case. He deposed that his daughter

was married to the appellant on 19.01.2006. After her marriage she resided in

matrimonial home with her husband and his parents i.e. Kanai Lal Jana and

Namita Jana. Two sons were born to her out of wedlock. For the first six months,

Minakshi and her husband were very happy and lived peacefully in the

matrimonial home. He deposed that with the passage of time the accused

persons namely Kainailal Jana and Namita Jana used to inflict cruelty on his

daughter Minakshi Jana. In particular reference to the appellant husband, this

witness further deposed that, the appellant husband did not protest to such

torture, on the contrary, he followed their advise. He further deposed that, the

accused persons used to ask his deceased daughter to bring some cash from her

father’s house. The accused persons on one occasion forcibly took cash of

Rs.50,000 from this witness. He further deposed that on 14 October, 2010 i.e.

within four years ten months of their marriage he was informed by the appellant

husband that Minakshi had hanged herself. He along with others went to the
matrimonial house of Minakshi and found his daughter lying on the bed and a

short cloth of curtain hanging from the ceiling. He lodged a complaint with the

Barasat Police Station. He identified the signature on the FIR (Ext. 1), the police

made an inquest over the dead body which was signed by him. He was

interrogated by the police. In cross-examination, he deposed that he had not

stated in the FIR the reason why any of the accused persons inflicted torture on

the deceased. He had also not stated in the FIR that he had given Rs.50,000 in

cash to the appellant husband. He further stated that he had not complained to

any authority or police station or any other social organisation of the infliction of

torture or cruelty on his daughter by any of the accused persons. He further

stated that he had not shown any kind of fear or threats the accused persons

with the help of political leaders. He stated that the marriage between the

appellant husband and Minakshi was negotiated and arranged with his

permission. He further deposed that he was in regular touch with his daughter

and she would visit him during the Puja holidays. He stated that his daughter

last visited him during Puja vacations in 2010. He stated that his grand sons are

now residing with him.

PW-2 (Lakshan Tripathi), was the Assistant Sub-Inspector. At the relevant

point of time he was posted at Barasat P.S. He deposed that he received a

complaint from Bijay Krishna Chowdhury and started Barasat P.S. Case No.1848

dated 14.10.2010. He had filed the formal FIR (Ext.1). He had performed the

inquest over the dead body of the deceased Minakshi Jana. He identified the

inquest report (Ext.3). In cross-examination, he deposed, that he had no personal
knowledge about the facts and circumstances of the instant case but knew the

meaning of dowry.

PW-3 (Debasish Bhattacharyya), is a local resident of ‘Chakrabortypara’

where the deceased and the appellant were residing. He deposed that he knew

Minakshi Jana. He deposed that Minakshi came to the matrimonial house which

was near his house. He further deposed that Minakshi was not happy in her

matrimonial house and was debarred from mixing with others by the accused

persons. He deposed that he had heard sounds of crying of Minakshi Jana at

night. He deposed that the accused persons used to ask her bring cash from her

father’s house. He deposed that the father of Minakshi had given a four wheeler

car to the accused. He deposed that on the date of the incident he had come to

know at night that Minakshi had hanged herself. He had identified all the

accused persons in the dock. In cross-examination, he deposed that he came to

know Bijay Krishna Chowdhury the father of the deceased on the date of the

death of Minakshi Jana. He deposed that he had never threatened the accused

persons nor made any financial demand on any of the accused persons. He

deposed that the accused persons had come to the locality after purchasing their

house. He deposed that his locality is commonly known as ‘Chakrabortypara’ and

he and the other residents of the locality were annoyed with the accused persons

all along after they shifted into ‘Chakrabortypara’. He stated that “we considered

them as an inferior class of people”. He deposed that he had never filed any

complaint nor gone to any authority in respect of torture or cruelty meted out to

the deceased or the fact that she had been debarred from mixing with others by
the accused persons. He further stated that he had not invited to the marriage of

Minakshi and Somenath.

PW-4 (Sanjoy Chakraborty), is also a local resident and neighbour living

in the same locality as the accused persons. He identified all the accused

persons. He stated that he knew all the accused persons. He stated that he also

knew the deceased Minakshi Jana. He stated that he had heard that Minakshi

had committed suicide. He stated that the accused persons would torture

Minakshi and demand cash and dowry. He stated that several salish (mediation)

meetings were held in the locality over the issue of cruelty and dowry meted out

to Minakshi on diverse occasions. He stated that he had tried to convince the

accused persons not to commit any act of atrocities or make any demand cash or

dowry upon Minakshi at such salishes. He stated that he had heard from the

father of Minakshi that he had given cash to the accused. In cross-examination,

he stated that, he had never told the police that he had heard from the father of

Minakshi that he gave cash to the accused. He said that he was not the head

man of his village. He stated he had not lodged any complaint in respect of the

demands made out of Minakshi before any police station or any authority. He

stated that he had been trying to evict the accused persons from the locality for a

long time.

PW-5 (Pallab Chakraborty), is a colleague of Bijay Krishna Chowdhury

and a signatory to the inquest report. He identified his signature on the inquest

report.

PW-6 (Santanu Chowdhury), is a cousin of the deceased. He stated that

Minakshi had been murdered by the members of her matrimonial house and he

reiterated the case made out in the FIR.

PW-7 (Pinku Chakraborty), is a resident of the locality. He deposed that

he knew Minakshi. He stated that he had heard that there was dispute between

the deceased and Somenath which was due to the demand for money. He

identified all the accused persons. In cross-examination, he stated that he was

involved in an altercation on two or three occasions with the appellant husband

in the locality.

PW-8 (Tapan Roy), is a local resident. He deposed that he knew Minakshi

Jana as she belonged to the locality. He was present at the time of marriage. He

came to know about the death of Minakshi “on the day of Saptami Puja in 2010”.

He deposed that he had heard that Minakshi had reported to the local club that

she had been tortured on many occasions. He also deposed that he heard that

her in laws used to pressurize Minakshi to bring money. He identified all the

accused persons present in the Court. In cross-examination, he stated that he

had a truck and coal business and he remained busy throughout the day.

PW-9 (Dr. Supriti Garai), is the doctor who was posted at Barasat District

Hospital at the relevant point of time and conducted the post-mortem on the

dead body of Minakshi. She had deposed that the death had been caused due to

hanging as stated in the post-mortem. She deposed that she had prepared the

post-mortem report and identified the same (Ext.7).

PW-10 (Ajoy Gopal Nag), is a local resident and was present at the morgue

when the inquest was conducted. He had signed as the witness to the inquest

report. He identified his signature in the inquest report.

PW-11 (Uttam Ghosh), was a police constable associated with the Barasat

P.S and had carried the dead body of Minakshi to the morgue. He identified the

dead body to the doctor for post-mortem examination.

PW-12 (Shib Sankar Singha), is the Sub-Inspector of police who was

posted with the Barasat P.S at the relevant point of time. He had carried on the

investigation in the case being Barasat P.S. case No.1848 dated 14.10.2010. He

had gone to the place of occurrence of death on 14.10.2010 and recorded the

statements of the available witnesses on that day. He prepared a rough sketch

map (Ext.8). He had also seized a number of articles (Ext.4 5). He arrested all

the accused persons and had received all the documentation in connection with

the case. He had recorded all the statements of the witnesses and conducted the

investigation.

In the light of the aforesaid evidence and by a pain staking judgment the

Trial Judge held that in the light of the evidence of PW-1, the father of the

deceased duly corroborated by the evidence of the local residents being PWs-3, 4,

7 and 8, the charges under Section 304B and Section 498A of the IPC were

proved against the appellant husband. Accordingly, the Trial Judge held the

appellant husband guilty of the offences under Section 304B and 498A.

11. At the outset, the relevant provisions of law for reference which arise

for consideration in this case are extracted hereunder: Section 304B, Section
306, Section 498A of the IPC, Section 2 of the Dowry Prohibition Act, 1961 and

Section 113A and 113B of the Evidence Act, 1872.

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.

306. Abetment of suicide.- If any person commits suicide,
whoever abets the commission of such suicide, shall be
punished with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to fine.

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.113A. Presumption as to abetment of suicide by a
married woman. – When the question is whether the
commission of suicide by a woman had been abetted by her
husband or any relative of her husband and it is shown that
she had committed suicide within a period of seven years from
the date of her marriage and that her husband or such relative
of her husband had subjected her to cruelty, the Court may
presume, having regard to all the other circumstances of the
case, that such suicide had been abetted by her husband or by
such relative of her husband.

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.

12. In order to attract the provisions of Section 304B of the IPC,

commonly known as dowry death the main ingredients of the offence to be

established are (a) that soon before the death the deceased she was subjected to

cruelty and harassment in connection with the demand of dowry, (b) the death of

the deceased woman was caused by any burn or bodily injury or some other

circumstance which was not normal, (c) such death occurs within seven years

from the date of her marriage, (d) that the victim was subjected to cruelty or

harassment by her husband or any relative of her husband, (e) such cruelty or

harassment should be for or in connection with demand of dowry, and (f) it

should be established that such cruelty and harassment was made soon before

her death. Kashmir Kaur Vs. State of Punjab AIR 2013 SC 1039. Therefore,

in each case the Court has to analyse the facts and circumstances leading to the
death of the victim and decide whether there is any proximate connection

between the demand of dowry, the act of cruelty or harassment and the death.

Similarly, to attract the ingredients of Section 306 the basic constituents

thereof are suicidal death and abetment thereof.

13. Furthermore, in making out a case under Section 498A it is essential

that a woman is subjected to cruelty which would include as defined in the

Explanation (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.

14. It is also well settled that in order for the presumption under Section

113A of the Indian Evidence Act, 1872 to apply it must be shown that the

husband or any of the relatives had subjected the deceased to cruelty soon before

her unnatural death within 7 years of marriage. Similarly, for the applicability of

Section 113B the presumption shall only be raised on the proof of the following

essentials requirements: (1) The question before the court must be whether the

accused has committed dowry death of a woman. (This means that the

presumption can be raised only if the accused is being tried for the offence under

Section 304B IPC). (2) The woman was subjected to cruelty or harassment by her

husband or his relatives. (3) Such cruelty or harassment was for, or in connection

with, any demand for dowry. (4) Such cruelty or harassment was soon before her
death. Per Sinha, J. Tarsem Singh vs. State of Punjab, (2008)16 SCC 155 at

paragraph 17.

15. Ordinarily, as a principle of law it is well settled “throughout the web

of the English criminal law one golden thread is always to be seen, that it is

the duty of the prosecution to prove the prisoner’s guilt subject to …the

defence of insanity, and subject also to any statutory exception.” These are

the classic words of Lord Sankey L.C. in Woolmington vs. D.PP 1935

Appeal Cases 462. There is a presumption of innocence in all criminal

trials and the onus is on the prosecution to prove beyond reasonable doubt

that the accused is guilty of the offence charged. The basic principle of

criminal jurisprudence is that the accused is presumed to be innocent

until his guilt is proved beyond reasonable doubt. This principle has stood

the test of time and has been repeatedly reiterated and affirmed by all

Courts in India as well as the Hon’ble Supreme Court of India as recent as

in the decision reported in Krishnegowda and Others vs. State of

Karnataka (2017) 13SCC 98 at para 26. However, the charges in the

instant case involve applicability of a reverse burden of proof on the

accused in the form of statutory presumptions under Section 113A and

Section 113B of the Evidence Act, 1872.

16. In order for the presumptions to apply it is founded on the proof of

cruelty or harassment of the woman dead for or in connection with any demand

for dowry by the person or persons charged with the offence soon before her

death. The presumption as to dowry death will be only triggered upon proof of the
fact that the deceased had been subjected to cruelty or harassment for or in

connection with any demand for dowry by the accused and that to in the

reasonable continguity of death. Such proof is therefore a legislatively mandated

pre-requisite before the statutory presumption of the offence of dowry death by

the person charged there with can be activated.

17. A conjoint reading of the aforesaid provisions thus stipulates the

burden of the prosecution to unassailably substantiate the ingredients of the two

offences by direct and convincing evidence so as to invoke the presumption

engrafted under Section 113B of the Act against accused. Proof of cruelty or

harassment by the husband or his relatives or the person charged with it is thus

a sine qua non to inspirit the statutory presumption, to draw the person charged

within the ambit thereof. If the prosecution fails to demonstrate by cogent,

coherent and persuasive evidence to prove such fact, the person accused either of

the aforementioned offences cannot be held guilty by taking refuge of the

presumption to cover up the shortfall in proof.

18. As has been held in Baijnath vs. State Madhya Pradesh (2017)1

SCC 101 at paragraph 31 “The legislative primature of relieving the prosecution of

the rigour of the proof of the often practically inaccessible recesses of life within the

guarded confines of a matrimonial home and of replenishing the consequential

void, by according a presumption against the person charged, cannot be overeased

to gloss over and condone its failure to prove credibly, the basic facts enumerated

in the sections involved, lest justice is the casualty.”

19. “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.” Sher Singh vs. State of Haryana at (2015)3

SCC 724 at para 25.

20. In the aforesaid backdrop, I will now examine the rival contentions

of the parties, the evidence and the impugned judgment. It is a fact that in the

First Information Report there are only vague and general allegations bereft of

any particulars against the accused persons. It is true that as a proposition of

law the FIR does not have to be an encyclopaedia of facts nor is it a substantive

piece of evidence. However, in the present case the complainant i.e. father-in-law

had not mentioned the factum of a cash demand of Rs.50,000 being made in the

FIR. It is a fact that in the FIR the complainant had mentioned that gifts in the

form of cash aggregating to Rs.50,000 had been given. But, this was in the form

of National Savings Certificate and not cash. It is only for the first time in the

evidence of the complainant (PW-1) that he mentioned that a sum of Rs.50,000 in

cash had been forcibly taken by the accused persons but there are no

particulars, date or time of such demand. The other statement of PW-1 that “I

used to give cash to my daughter for giving them” is vague and bereft of

particulars. There must be existence of a proximate and live link between the

effect of cruelty based on dowry demand and the death concerned. This

ingredient is conspicuously missing in the case of the prosecution.

21. The evidence of all the local residents appears to be vague and

suspicious and has to be assessed in the background of the fact that the locality

where the accused persons used to reside was known as “Chakrabortypara” and

the persons in that locality were annoyed with the accused persons all along and

they considered them an inferior the class of people. The evidence of the local

residents should therefore be looked upon with caution. On the one hand PW-3

deposed that the deceased was not allowed by the accused persons to meet with

the local residents. However, in the same breath PW-3 goes on to depose that he

had knowledge that the accused persons used to make demands from the

deceased to bring cash from her father’s house.

22. The evidence of the other local residents PWs-3, 4, 7, 8 and 10 is

clearly based on hearsay. They all deposed that they had heard from others but

not the victim, of the demands of cash being made from the accused persons.

PW-3 did give an instance of a demand of a four wheeler car being made from the

father of Minakshi but surprisingly this evidence was not corroborated nor

substantiated by the complainant himself. Similarly, in the evidence of PW-4

(Sanjoy Chakraborty), a local resident, he deposed that there was several Salish

(mediation meetings) held in the locality over the alleged issue of cruelty and

dowry demands on several occasions. Ironically, this fact was also not brought

out by the complainant either in the FIR or his examination-in-chief. It is to be

remembered, that in the normal course, if a woman is being tortured and

harassed and mediation meetings were being held in the locality she would not

remain reticent of the state of affairs and would necessarily repeatedly inform her

family this is especially before she takes the extreme step of taking her own life.
This fact was also not substantiated by the complainant. There are several

inconsistencies, contradictions and discrepancies with the statements of the

complainant and the other witnesses who were primarily local residents where

the deceased had her matrimonial house.

23. As stated by Bentham, “witnesses are the eyes and ears of justice.” It

is the duty of every court to consider the trustworthiness of evidence on record.

In the light of the evidence in the instant case it is apparent that all the local

residents had an animosity or ill feeling towards the accused persons since the

locality was commonly known as “Chakrabortypara” and admittedly the accused

persons were outsiders to the locality. The evidence of all the local witnesses

draws me to the irresistible conclusion that their evidence cannot be a basis to

convict the appellant husband. I am of the view that the evidence of the local

witnesses is filled with discrepancies, contradictions and improbable versions. As

has been held by the Hon’ble Supreme Court of India in State of U.P. vs. Anil

Singh 1988 (Supp) SCC 686 it is not uncommon for witnesses to add

embroidery to the prosecution story. There are inconsistencies, exaggerations

and embellishments in the evidence of the local residents which makes their

evidence unbelievable. Apart from the general allegations in the same tone

ingeminated with parrot like similarity there is nothing in the evidence of the

prosecution witnesses which substantiates the allegations of cruelty, harassment

or dowry demand.

24. The Trial Court at internal page No.20 of the judgment proceeds on

the basis as if both the preconditions of cruelty and dowry demand had been

satisfied. However, the evidence of the parties does not substantiate either of
these conditions. The cumulative consideration of the overall evidence on the

facet of dowry and cruelty is conspicuously absent. The prosecution in my view

has failed to prove this indispensable component of the offences beyond

reasonable doubt. The factum of unnatural death in the matrimonial house and

that to within 7 years of marriage is not ipso facto sufficient to bring home the

charge under Section 304B or 498A of the IPC against them. The benefit of the

deficiency in proof logically would be available to the persons charged. The Trial

Court failed to appreciate that there was no evidence brought on record to show

that cruelty or harassment or dowry demand had been meted out to Minakshi.

There is nothing on record to show that “soon before the occurrence” of her death

there was any cruelty or harassment and only in that case the presumption

could be made applicable. The Trial Court glossed over the proximity test which

is an essential requirement for the sections to apply. I am thus of the view that

the conclusions of the Trial Court do not constitute a plausible view on the

materials on record and cannot be sustained.

25. On overall scrutiny of the evidence as a whole in my view the

conviction of the appellant husband on the basis of the materials on record is not

justified. To reiterate, the prosecution has failed to prove the crucial ingredients

of cruelty, harassment or dowry demand by direct and cogent evidence thereby

disentitling itself to the benefit of the statutory presumption available under

Section 113A or Section 113B of the Act. For the aforesaid reasons, the appeal

being CRA No.608 of 2013 is allowed and the impugned order is set aside.

26. For the foregoing reasons, I am also of the view that there is no

convincing or clear evidence which would implicate the accused persons of the
offence under Section 304B, 306 or 498A as stated hereinbefore. Needless to

mention there is also a complete absence of the ingredient “soon before her

death” in the present case. In order to attract the provisions of Section 304B one

of the main ingredients of the offence which is required to be established is that

“soon before her death” she was subjected to cruelty and harassment “in

connection with the demand of dowry”. There is no evidence whatsoever that any

of the accused persons had committed any specific act of cruelty or harassment

soon before the death of Minakshi. Accordingly, the case made out by the

prosecution is neither true nor acceptable.

27. In the light of the aforesaid discussion, I set aside the conviction and

the sentence imposed on the appellant husband. The appellant husband is

acquitted of the charges levelled against him. The appellant shall be released

forthwith if he was not involved in any other case.

28. The appeal being CRA No.765 of 2013 preferred against the

judgment and order of acquittal is dismissed. For the reasons morefully narrated

hereinabove, there is no direct or cogent evidence to implicate either of the in-

laws in the death of the deceased. A cumulative consideration of the overall

evidence on the facets of cruelty, harassment or dowry vis-à-vis the victim’s in-

laws leaves me unconvinced about the truthfulness of the charges qua the

accused persons. There are no specific allegations of either cruelty or harassment

or dowry demands in so far as the in-laws are concerned. As discussed earlier,

there is also no proximate or live link between the vague allegations of cruelty,

harassment or dowry demand and the death of the victim. This ingredient is

conspicuously absent in the case sought to be made out by the prosecution.

29. Both the appeals are accordingly disposed off.

30. A copy of the judgment along with the Lower Court Record 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.)

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