Calcutta High Court Tapan Kar And Ors.-vs-State Of West Bengal on 8 September, 2006
Equivalent citations:2008 (1) CHN 532
Author: P N Sinha
Bench: P N Sinha, P S Datta
Pravendu Narayan Sinha, J.
1. This appeal is directed against the judgment and order of conviction passed by the learned Additional Sessions Judge, Rampurhat in Sessions Trial No. 3 of 1999 (Sessions Case No. 82 of 1993) thereby sentencing the appellants to suffer rigorous imprisonment for 10 years each for the offence under Section 304B of the Indian Penal Code (in short IPC) and also to suffer rigorous imprisonment for 3 years each and fine of Rs. 1,000/- each in default to suffer further R.I. for 3 months each for the offence under Section 498A of the IPC.
2. The prosecution case arose out of written complaint/FIR (Ext. 1) lodged by Krishnendu Palit (P.W.1) before the Officer-in-Charge, Rampurhat P.S. on 25.6.90. The prosecution story depicted in the FIR, in short, is that Anjana Palit (since deceased), sister of P.W. 1 was given in marriage with Arup Kar on 7.5.90. After marriage her husband, her brother-in-law-and sister-in-laws used to torture Anjana severely. On 24.6.90 at about 10.30 p.m. P.W. 1 received information through Durgapur P.S. about death of his sister Anjana Kar. On that day he received two letters of his sister Anjana sent by her through the husband of his elder sister. After going through the contents of the letters he and other inmates of his house learnt about deep rooted conspiracy and they apprehended that Anjana has either been murdered by her in-laws or she was instigated to commit suicide. In the said letters his sister revealed that as her father could not give the articles of dowry as per demand she was subjected to torture in her in-laws house. In the marriage of Anjana his father gave to the bridegroom party liquidated money of Rs. 10,000/, gold ornaments of 10 bharies, 1 cot, dressing table, almirah and other articles as per demand of the bridegroom party. In the said letters his deceased sister informed that her husband, brother-in-law Tapan Kar and sister-in-laws used to torture her. His sister was not allowed to write any letter to him or to his father and if she wanted to write any letter such letters were opened by her husband and brother-in-law Tapan Kar to know the contents of the letters and if the letters were beyond their choice they used to torn the letters. She had to bear scolding for the cause of death of her mother-in-law soon after her marriage and over that matter she was called unlucky in her in-iaws house, though in fact her mother-in-law died after her third heart attack. On the basis of such FIR Rampurhat P.S. Case No. 74/90 dated 24.6.90 under Section 304B of the IPC was started against the husband and other in-laws. After completing investigation the Investigating Officer (in short I.O.) submitted chargesheet against four accused persons under Sections 498A and 304B of the IPC. The trial that followed ended in conviction of the four appellants. During pendency of the appeal appellant No. 1 Tapan Kar expired on 17th January, 2005 and as such the appeal stands abated against him.
3. In order to prove its case the prosecution examined as many as 21 witnesses namely, P.W. 1 Krishnendu Palit (the informant and brother of deceased Anjana), P.W. 2 Abdul Mahasin, P.W. 3 Sekhar Sinha, P.W. 4 Satyendra Nath Das, P.W. 5 Sandip Kumar Roy @ Gopal, P.W.6 Subir Sengupta, P.W. 7 Mirza Zakin Beg (scribe of FIR), P.W. 8 Somnath Sinha, P.W. 9 Dr. Gopal Chandra Saha (post-mortem surgeon), P.W. 10 Monohar Sk. (homeguard), P.W. 11 Ashok Kumar Sarkar (brother-in-law of P.W. 1), P.W. 12 Kakali Palit (sister of deceased), P.W. 13 Debasish Saha, P.W. 14 Amar Kumar Sarkar. P.W. 15 Tapan Kumar Roy (hand writing expert), P.W. 16 Anita Sarkar (elder sister of deceased), P.W. 17 Kazi Saimuddin, P.W. 18 S.I. of Police Abdul Zalil, P.W. 19 Rabindra Nath Chatterjee (retired police officer-cum-part I.O.), P.W. 20 Uttam Biswas and P.W. 21 Satyaban Mondal.
4. Though 21 witnesses were examined by the prosecution, the fate of the prosecution case depends upon the evidence of P.W. 1, P.W. 6, P.W. 9, P.W. 11, P.W. 12, P.W. 15, P.W. 16, P.W. 18 and P.W. 19.
5. P.W. 2 was a witness of inquest as well as seizure of diary and the wearing apparels as well as ornaments of deceased. P.W. 3 and P.W. 4 are also witnesses of seizure and P.W. 4 was also a witness of inquest. P.W. 5 is a relative of accused persons and is a formal witness. P.W. 7 came to Rampurhat from Durgapur along with P.W. 1 and others and was the scribe of FIR (Ext. 1) and wrote out the FIR according to instruction of P.W. 1. P.W. 8 is a formal witness and neighbour of P.W.
1. P.W. 10 is the home-guard who brought the deadbody of Anjana Kar to the police station first, and thereafter, to the Rampurhat Sub-Divisional Hospital Morgue for post-mortem examination.
6. P.W. 13 is a neighbour of P.W. 1 at Durgapur and accompanied P.W. 1 to Rampurhat at the time of lodging FIR and next time on 1.7.90 at the time of seizure of two letters written by the deceased and other articles which were physics practical book containing handwriting of deceased and two marriage invitation cards. P.W. 14 is also a formal witness who came to Rampurhat at the time of producing the letters, physics practical book and marriage invitation cards to the police officer at Rampurhat. P.W. 17 is a practising Advocate of Rampurhat Court who stated that accused Tapan Kar (since deceased) was a member of the Rampurhat Bar. P.W. 18 is a police officer who proved the handwriting of S.I. of Police Ashok Kumar Ghosh who died on 16.6.01. The G.D. Entry No. 954 dated 24.6.90 (Ext. 15), G.D. Entry No. 961 dated 24.6.90 (Ext. 16) and G.D. Entry No. 972 dated 25.6.90 (Ext. 17) written by Ashok Kumar Ghosh was proved by this witness. He also proved the inquest report (Ext. 5/2), formal FIR (Ext. 18), six seizure lists (Exts. 6/B, 6/1/B, 6/2/B, 7/3, 8/5 and 19) wliich were prepared and recorded by Ashok Kumar Ghosh. P.W. 21 is a formal witness whose evidence does not have any significance in this case. P.W. 20 though a witness formal in nature, but his evidence is of great importance which we would reveal later on while discussing evidence and merits of prosecution case.
7. P.W. 1 in his evidence stated that his second sister Anjana was married with Arup Kar of Rampurhat Thanapara and the marriage was solemnised on 7th May, 1990. Anjana died on 24.6.90 inner in-laws house by committing suicide by hanging. On 24.6.90 at about 10.30 p.m. they received news of death of Anjana communicated by Arabindo P.S. of Durgapur. In the morning of 25.6.90 he accompanied by others came to the Rampurhat Police Station and submitted written complaint/FIR which was scribed by P.W. 7.
8. His sister Anjana was ill-treated by her husband and other in-laws and she was subjected to both physical and mental torture by them. The accused persons inflicted torture on her as their demands were not fulfilled by them. About a fortnight after marriage of Anjana, her mother-in-law died and over this matter also she was treated as unlucky and had to digest abusive remarks. On 23.6.90 his elder brother-in-law Ashok Sarkar (P.W. 11) and his youngest sister Kakali (P.W. 12) came to the matrimonial home of Anjana at Rampurhat and they returned back to Durgapur in the morning of 24.6.90. After their return to Durgapur they found two letters written by Anjana on pages of diary and the letters were kept in the bag of his brother-in-law. This witness proved the handwritings of these two letters as the handwriting of his sister Anjana and the letters were marked as Exts. 2 and 2/A. He also proved some other writings of his sister Anjana found in different pages of diary of LIC which was seized by deceased police officer Ashok Ghosh on 24.6.90 and the diary was found in the drawer of dressing table inside the room where the deadbody of Anjana was found hanging. In the said diary the deceased wrote several letters out of which one was addressed to this witness also, one was addressed to ‘bardi’ and ‘chordi’ thereby meaning the female accused persons being sister-in-laws of Anjana and another letter addressed to ‘maa’ and ‘baba’ i.e. parents of the deceased.
9. P.W. 1, thereafter, stated that at the time of marriage ceremony of Anjana his father gave 6 bharies gold ornaments and Its. 10,000/- in cash apart from utensils, dresses and other furniture. They could not give gold ornaments of 10 bharies as his father was a poor employee though they had the intention to give the remaining 4 bharies of gold ornaments subsequently. They also could not give a ‘benarasi’ saree which was promised to be given during the marriage ceremony. After ‘astamangala’ he did not receive any information of his sister Anjana and as such his elder brother-in-law and his youngest sister were sent to Rampurhat for obtaining information of Anjana. After his brother-in-law and his youngest sister came back to Durgapur from Rampurhat he learnt from them about torture of accused persons on his sister Anjana and also learnt about tortures from the contents of the two letters which were found in the bag of P.W. 11.
10. The cross-examination of P.W. 1 reveals that before lodging FIR they did not make any allegation at any police station in Durgapur. He was not present at the time of finalization of marriage of Anjana with Arup Kar as at that time his father was alive. He had some personal knowledge and he heard other facts from his father concerning the marriage talks of Anjana. He was not present at the time of execution of ‘lagnapatra’. He did not produce and submit the two letters written by Anjana at the time of lodging FIR. During the ‘sradh’ ceremony of mother-in-law of Anjana his father attended the said function. He admitted writing of his sister Anjana inside the said diary under date 21st August, 1990 and letter of his father dated 20th June, 1990 which were marked as Exts. A and B respectively. He handed over the diary, the physics practical khata and other articles to police. On 24.6.90 at about 10 a.m. he returned to home and found P.W. 11 and P.W. 12 who had returned from Rampurhat and at that time he learnt under what circumstances the said two letters written by Anjana were found in the bag of P.W. 11 Ashok Sarkar. He did not see whether in the lagnapatra’ there was mention of dowry. He denied the defence suggestion that his sister Anjana had an affair with Uttam Biswas and for the fear of Uttam they did not bring Anjana to Dur gapur after marriage. He also denied the defence suggestion that the demands of dowry as mentioned in the FIR were fabricated and concocted. He also denied the defence suggestion that for her affair with Uttam Biswas Anjana could not accept her marriage with Arup Kar. After marriage of Anjana he did not visit her matrimonial home.
11. P.W. 6 is a neighbour of P.W. 1 and he came to Rampurhat twice, first at the time of lodging FIR by P.W. 1 after expiry of Anjana and next time on 1.7.90 when they produced the two letters written by Anjana, joint photograph of Anjana and her husband, marriage invitation cards of two families and the physics practical note book of Anjana which were seized through seizure lists marked as Exts. 7, 8 and 9. In cross-examination he stated that he visited the police station at the instance of father of deceased and Ashok Sarkar handed over the aforesaid documents to the police. The name of the deceased appears on the physics practical note book.
12. P.W. 9, the autopsy surgeon in his evidence stated that on 25.6.90 he held the post-mortem examination on the body of deceased Anjana Kar. He found one oblique non-continuous ligature mark high up in the neck above the hyoid bone, the knot mark being on the left side. The groove parchmentised. On dissection, sub-cutenous tissue was found to be parchmentised and no fracture was detected in the hyoid bone. Marks of saliva was seen to be dripping from the right angle of the mouth. Viscera was preserved for chemical examination. He opined that the injuries found on the deadbody of Anjana were ante-mortam in nature. Subsequently, after receiving FSL report he formed his final opinion. He opined that the cause of death was due to asphyxia by hanging which was ante-mortem and suicidal in nature. The reports submitted by him were marked Exts. 11 and 12. His cross-examination reveals that at the time of holding post-mortem examination he also examined the inquest report.
13. P.W. 11 in his evidence gave the picture before the Court that Anjana, his sister-in-law after marriage went to her matrimonial home. He visited the matrimonial home of Anjana first on the day of ‘boubhat’ and thereafter during ‘astamangala’ when he went to her matrimonial home for taking her back to her paternal home. Thereafter on 23.6.90 he visited the matrimonial home of Anjana as his mother-in-law told him to take information of her as they did not receive any news from Anjana for a long time. On 23.6.90 his youngest sister-in-law Kakali accompanied him and they reached Rampurhat between 2.30 to 3.00 p.m. They enquired from the deceased Anjana as to why she did not contact with them by any letter and why she did not send any information to her father’s house. They learnt from her that she was not allowed by the accused persons to write any letter or to send any information to her father’s house. She further reported to them that she was being tortured by the accused persons and P.W. 11 found some marks of injuries on her person. Anjana made allegation before them that she was tortured by the accused persons holding her responsible for the death of her mother-in-law designing her as a witch. Kakali called her husband Arup and he came before them when Kakali asked Arup as to why he was torturing the deceased. Over this question Arup became furious and twisted the hands of deceased Anjana out of anger. Arup also asked the deceased Anjana to leave that room to which P.W. 11 raised protest. Arup in their presence again held Anjana responsible for the death of his mother and made further allegation that Anjana did not pass B.Sc. Examination and that during marriage he was given old gold ornaments and old sarees. Arup Kar stated that a day will come when he will laugh and his mother-in-law will be weeping. Staying the night in the matrimonial home of Anjana they left Rampurhat at dawn and came back to Durgapur. After coming back to Durgapur when he was bringing out wearing apparels from his kit bag he found two letters written by the deceased Anjana on pages of diary which were addressed to her mother and his elder sister, that is his wife. He handed over the letters to his father-in-law. On that very day i.e. on 24.6.90 at about 10.30 p.m. they received the information of death of Anjana. On 1.7.90 he came to Rampurhat P.S. and handed over two marriage invitation cards, those two letters written by deceased found in his bag on 24.6.90, one practical note book and some photographs of the marriage of deceased.
14. In his cross-examination we find that he was present at the time of final talk of settlement of marriage between Anjana and Arup Kar. At the time of marriage of Anjana the female accused Maya and Chhaya i.e. sister-in-laws of Anjana were already married and they used to live in their matrimonial homes. After demise of Anjana he met with police first at Rampurhat on 1.7.90. On 23.6.90 Anjana did not tell him to take her away to Durgapur but she requested him to seek the permission of her father-in-law before taking her away. He denied the defence suggestion; that deceased Anjana never made any allegation to him against the accused persons and also denied the defence suggestion that the documents which he handed over to his father-in-law were manufactured.
15. P.W. 12 Kakali Palit, the youngest sister of deceased in her evidence fully corroborated the evidence of P.W. 11. She stated that as they were not getting any information from Anjana for a long period they came to Rampurhat to enquire about her. They reached her matrimonial home between 2.00 to 2.30 p.m. and enquired from her as to how she was in her matrimonial home. Anjana reported to them that she was not allowed to make any contact with them and she was also not allowed to write any letter to them. She alleged that her husband Arup Kar used to torture her physically. Other accused persons also used to torture her and the cause of torture was dissatisfaction of the accused persons with the gold ornaments given in her marriage. The accused persons also alleged that she was unlucky. After hearing those from Anjana she called her husband Arup Kar who came down from first floor. She then asked Arup Kar as to why he was torturing her sister Anjana and over this Arup became annoyed and he twisted the hands of her sister out of anger. She requested her sister Anjana to adjust in matrimonial home. Her sister Anjana requested her to send some sarees as she was in dearth of saree. They came back to Durgapur next morning and on that very-night received the news of death of Anjana. Before that at Durgapur P.W. 11 found two letters written by her sister inside his kit bag which were kept in the bag beyond their knowledge. On 1.7.90 she again visited Rampurhat and came to police station along with P.W. 11 and others and handed over the letters, photographs, practical note book and marriage invitation letters.
16. Her cross-examination reveals that mother-in-law of Anjana expired 15/16 days after marriage of Anjana and her father attended the ‘sradh’ ceremony. She had talk with the police at Rampurhat on 1.7.90 and she stated about torture on her sister Anjana by the accused persons as the accused persons were not satisfied with the gold ornaments given in the marriage. She admitted that Artjana told her that there was none in the house save and except the maid servant to whom she could talk. Arup Kar at that time was working as LIC agent. On 23.6.90 she did not see the female accused persons in the matrimonial home of Anjana.
17. P.W. 15, the handwriting expert compared the handwriting of the deceased as appeared in the two letters along with her standard writing as was found in the pages of the seized diary and also compared with the other writings appeared in the pages of the diary under date 1.8.90,5.8.90 and 21.8.90. After comparing the questioned letters and the other writings appeared in the different pages of the diary along with the standard writings in the said diary the expert on the basis of nature of start, direction of pen movements and direction of finish of different words, manner of execution of different words and the general writing features such as slant, ligament, movement, skill, spacing, relative size of the letters, ratio and proportion of the letters opined that the person who wrote the standard writing marked by the expert as SB/1 to SB/4 and SC/1 to SC/3 also wrote the question writings i.e. the letters which were marked by him as Q/1 to Q/11. He opined that agreements are significant and sufficient to prove their common authorship.
18. In cross-examination this witness stated that there may be variation in strokes and flows but significant writing features remain unchanged. Significant writing feature means highly individual features which signified the author of the writer.
19. P.W. 16 in evidence gave us the picture that after marriage of her sister Anjana she visited her matrimonial home only once on the day of ‘boubhat’ ceremony. A few days prior to death of her sister her mother accompanied by her another sister Kakali (P.W. 12) went to the house of accused Chhaya Mitra who resides at Durgapur in order to collect information about her sister Anjana. But Chhaya Mitra did not meet her mother and her mother was driven out of that house. Thereafter, her mother came to her matrimonial home at Purulia and reported that she was not getting information of Anjana for a long time. On 23.6.90 her husband accompanied by Kakali came to the matrimonial home of Anjana at Rampurhat. On 24.6.90 at morning they returned back to her parents house at Durgapur and they reported about torture of accused Arup Kar on Anjana. Her husband while bringing out his wearing apparels from the bag found two letters written by her deceased sister Anjana, one was addressed to her and the other to her mother. In those two letters the deceased depicted everything about torture on her at her matrimonial home. She identified the said letters which were Exts. 2 and 2/A.
20. From her cross-examination we find that on 23.6.90 she was at Purulia with her mother and she came to Durgapur on 25.6.90. She denied the defence suggestion that her sister Anjana used to maintain correspondence of letter with Uttam Biswas. She did not state to I.O. that Anjana continued correspondence of letter with Uttam Biswas even after her marriage. She was present in her father’s house at Durgapur when after marriage Arup Kar visited her father’s house on account of ‘astamangala’.
21. We have already discussed evidence of P.W. 18. His evidence further reveals that at first Rampurhat P.S. U.D. Case No. 83/90 dated 25.6.90 was started concerning unnatural death of Anjana Kar and subsequently the specific case was started on the basis of FIR lodged by P.W. 1.
22. Evidence of P.W. 19 (I.O.) reveals that he sent the two letters written by deceased, the LLC diary for the year 1990, physics practical note book of deceased to the Question and Document Examination Bureau for examination and opinion. He collected FSL report and obtained final opinion of doctor as to the cause of death of deceased. He also received the report of handwriting expert. P.W. 16 Anita Sarkar stated to him that from the letter shown by him to her she learnt that Anjana had love affair with Uttam Biswas. She also stated to him that Anjana committed suicide on her own and did not hold anybody responsible for the same.
23. His evidence further reveals that he also examined Uttam Biswas and learnt from him that Anjana was his distant relative. His evidence also gives us the light that after completing investigation he came to the conclusion that Anjana had no intimacy with Uttam Biswas. His cross-examination reveals that Uttam Biswas stated to him that he could not understand as to why such a letter was sent to him.
24. P.W. 20 is Uttam Biswas who in his evidence stated that Anjana was not personally known to him and he had no correspondence of letter with her.
25. Mr. Sekhar Basu, the learned Senior Counsel for the appellants submitted that in the FIR P.W. 1 mentioned about the two letters written by deceased Anjana which were found in the bag of P.W. 11, but those two letters were not produced and handed over to police at the time of lodging FIR at Rampurhat P.S. He further submitted that P.W. 1 in his evidence in cross-examination stated that he handed over the diary, khata and other articles to police. From Ext. 6/1/B, the seizure list dated 24.6.90 it appears that the sky blue LIC diary was seized from the drawer of dressing table in the bed room of deceased and key of the drawer was found tied with one corner of saree of deceased. P.W. 1, therefore, cannot produce the diary before the police and he gave wrong statement in Court.
26. In our opinion, this submission of Mr. Basu does not make P.W. 1 an untrustworthy witness, it was a mistake on his part during cross-examination due to his failure to understand the nature of the question. It appears to us that he wanted to signify that the two letters written by his deceased sister were in the pages of the diary. It is not the prosecution case that the said diary in question was produced by P.W. 1. From the inquest report, from the seizure list and from seizure witnesses it is clear that the said diary was seized after it was found in the drawer of the dressing table inside the bed room of deceased. The two letters written by deceased were in fact produced at Rampurhat P.S. along with photographs of marriage, marriage invitation cards of both the families and one physics practical note book by P.W. 11 Ashok Sarkar at Rampurhat P.S. when those were seized by two seizure lists marked as Exts. 7/3 and 8/5. In our opinion, this mistake of P.W. 1 is not at all sufficient to destroy his evidence.
27. Mr. Basu also submitted that P.W. 11 and P.W. 12 did not narrate to P.W. 1 about the incident dated 23.6.90 which took place in the matrimonial home of Anjana at Rampurhat. In our opinion, this submission has no force as P.W. 1 in his evidence stated that on 24.6.90 he returned to his house at about 10 a.m. and heard everything. It is true that P.W. 11 and P.W. 12 in their evidence did not specifically state about narrating the incident dated 23.6.90 to P.W. 1, but this omission in our opinion is not at all sufficient to either disbelieve P.W. 1 or P.W. 11 and P.W. 12. It is natural that family members of P.W. 1 including his father and others would anxiously wait for the return of P.W. 11 and P.W. 12 from Rampurhat, the matrimonial home of Anjana and to know from them about Anjana and how she was leading her new life at her matrimonial home.
28. Next point of attack of Mr. Basu was non-production of ‘lagnapatra’ and it was his contention that failure of prosecution to produce ‘lagnapatra’ in Court totally negates the prosecution story of demand of dowry. It was contended by him that production of ‘lagnapatra’ would have revealed whether there was any demand of dowry in the marriage by the bridegroom party. We are not convinced with this submission as in our opinion non-production of lagnapatra’ during trial is not at all vital to throw the prosecution case out of Court when we find direct evidence of witnesses and letters of deceased and other papers to show that what was the demand of dowry in the marriage and what was paid by father of deceased Anjana in the marriage and what were the causes of discontent of the appellants for the failure to supply total demand of dowry. We find from evidence of P.W. 1 that in the marriage there was demand of 10 bharies gold ornaments and some good quality sarees including ‘benarasi’ saree but his father could not pay gold ornaments of 10 bharies. His father could give only 6 bharies gold ornaments and Rs. 10,000/- in cash besides utensils, dresses and other furniture. They could not give ‘benarasi’ saree. The deceased in her letters marked as Exts. 2 and 2A clearly depicted her torture on her for failure of her father to fulfil all the demands of dowry promised at the time of marriage and taunt of the appellants for providing some inferior quality sarees and other articles.
29. It was further argued by Mr. Basu that there is no evidence that during ‘astamangala’ when the deceased came to her father’s house she made any complain or allegation regarding torture on her concerning dowry. In our opinion, this submission has also no force and it does not destroy the prosecution case. It was not the prosecution case that within 7 days of marriage the deceased made complain to her father relating to torture on her demanding dowry. Even if she was taunted for inferior quality of articles of dowry it was unexpected that in presence of her husband during ‘astamangala’ she would make complain of torture on her so as to make her life precarious in matrimonial home. It appears to us from evidence at the time of ‘astamangala’ torture on her did not start and it was started only after death of her mother-in-law for which she was taunted by the appellants as unlucky girl and witch.
30. Next contention of Mr. Basu for the appellants is that the inquest report reveals that at the time of death there were gold ornaments on the person of the deceased. A lady who was subjected to torture for dowry and that too concerning failure to pay balance gold ornaments is not expected to wear so many gold ornaments at the time of her death. In our opinion, this submission does not carry any sense and we find nothing absurd in wearing gold ornaments by the deceased at the time of her death. We have carefully perused the inquest report and we find that only normal ornaments were found on the person of deceased Anjana at the time of her death and inquest. It should be remembered that Anjana died within 48 days of her marriage and she was still a newly married wife. A newly married wife in her matrimonial home is expected to wear some gold ornaments on her person. The inquest reveals that only two gold bangles on her left hand, one golden ring in the finger of left hand, one gold bangle on her right hand and one ‘nakchabi’ i.e. nose-ring were on her person besides iron and red ‘pala’ bangles. Those were the normal bangles and ornaments which can be found on the person of all newly married women.
31. Mr. Basu further submitted that stay of P.W. 11 and P.W. 12 in the matrimonial home of Anjana on the night of 23.6.90 is unusual after such incident at noon when allegedly the husband Arup Kar twisted hands of Anjana and taunted her again saying that she was responsible for the death of his mother with further complain that he was given old gold ornaments and old sarees. It was further argued by Mr. Basu that father of Anjana attended the ‘sradh’ ceremony coming to matrimonial home of Anjana after death of her mother-in-law. There is no evidence before the Court to show that either P.W. 1 or P.W. 12 or P.W. 16 stated that they learnt from their father story of torture on Anjana demanding dowry when their father attended ‘sradh’ ceremony for the death of mother-in-law of Anjana. These evidence and circumstances clearly show that there was no torture at all on Anjana by the appellants after marriage demanding dowry and the prosecution has introduced this story only for harassment of the appellants and to put them behind the bar.
32. Apparently, the above submission seems to be convincing, but we find that this submission has also no force when we consider the entire evidence and circumstances. It was unexpected that at the time of ‘sradh’ ceremony when the entire family was in grief and mourning, the newly married daughter would make complain to her father about torture on her in her matrimonial home during ‘sradh’ ceremony of her mother-in-law. Neither in FIR nor in evidence of P.W. 1 it was mentioned at the time of the ‘sradh’ ceremony of mother-in-law of Anjana there was torture on her which was heard by his father. Even if Anjana was tortured before death of her mother-in-law or immediately after the death of mother-in-law as a sensible lady she did not disclose it to her father during ‘sradh’ ceremony of her mother-in-law expecting future, good relation with husband and other in-laws in her matrimonial home.
33. P.W. 11 and P.W. 12 came to enquire about Anjana as parents of Anjana did not receive any news of her for a long time since the ‘astamangala’. No letter was received by them from Anjana containing news of her and being anxious they sent P.W. 11 and P.W. 12 to her matrimonial home. Ext. B which the defence brought in evidence reveals that in the said post card, written a few days before death of deceased, father of deceased expressed his anxiety due to not receiving any news of Anjana for a long time. Thereafter, evidence of P.W. 11 and P.W. 12 reveals the vivid story of torture on Anjana on 23.6.90 which we have already mentioned while discussing evidence of P.W. 11 and P.W. 12 and we do not intend to reproduce the same evidence. Evidence of P.W. 11 reveals that they reqiiested Anjana to go with them but she told that unless her father-in-law permits her she cannot leave her matrimonial home. From evidence we find that on that day her father-in-law was not in the matrimonial home and he had gone to Bolpur, matrimonial home of one of his daughters i.e., house of one of the female accused persons. Evidence and circumstances make it clear that when P.W. 11 and P.W. 12 learnt about such a pathetic life of Anjana and saw conduct of her husband themselves with their own eyes they did not dare to leave her matrimonial home for that day.
34. Evidence of P.W. 12 reveals that she requested her sister Anjana to adjust in her matrimonial home. P.W. 11 and P.W. 12 stayed at matrimonial home of Anjana on the night of 23.6.90 only to have talk with her, to give her strength, courage and energy for adjusting in matrimonial home and also to console her. Accordingly, we do not find anything unusual for the stay of P.W. 11 and P.W. 12 in the matrimonial home of Anjana on the night of 23.6.90 in spite of such incident as depicted above at noon of 23.6.90. Rather they stayed purposefully so that during their stay on that day the husband did not dare to cause further torture on Anjana. In our opinion, this circumstance cannot throw the prosecution case out of Court and it was the normal human conduct of P.W. 11 and P.W. 12 after such incident of 23.6.90. From evidence and circumstances we can easily understand the grounds of stay of P.W. 11 and P.W. 12 in matrimonial house of deceased on 23.6.90 though no question was put to P.W. 11 and P.W. 12 as to why they stayed in that house after such incident.
35. Mr. Mallick for the State drew our attention to the cruel behaviour and bad conduct of husband Arup Kar on 23.6.90 in presence of P.W. 11 and P.W. 12. He submitted that the incident dated 23.6.90 as transpires from evidence of P.W. 11 and P.W. 12 and evidence of P.W. 1, P.W. 16 and the documentary evidence clearly prove that the deceased Anjana was subjected to torture on demand of dowry and it resulted into untimely death of a newly married wife only within 48 days of her marriage.
36. We have discussed in detail the evidence of P.W. 11 and P.W. 12 and the circumstances transpired from their evidence which reveal the conduct of the husband which amounts to torture on deceased Anjana, his newly married wife.
37. Mr. Basu for the appellants submitted that the two letters allegedly-written by the deceased are fabricated and manufactured. On 23.6.90 P.W. 11 and P.W. 12 came to the matrimonial house of deceased Anjana and initially these two witnesses had talk with Anjana. If in fact the deceased wrote such letters she could have easily handed over those letters to them during their conversation before arrival of husband of Anjana in their room on the call of P.W. 12. Why the deceased would secretly keep the letters in the bag of P.W. 11? It proves that the story introduced by P.W. 11 and P.W. 12 are imaginary and unbelievable.
38. Considering the entire evidence, both oral and documentary, and the circumstances we are unable to agree with the views of Mr. Basu. From the entire evidence and circumstances we find that Anjana was almost a captive lady like ‘Rupkatha’ story i.e., fairy tale stories in which princess was confined in ‘Yakshapuri’. Evidence of P.W. 11, P.W. 12 and P.W. 16 reveal that since ‘astamangala’ they did not receive any information of Anjana nor any letter from her. P.W. 11 and P.W. 12 after reaching at matrimonial home of Anjana learnt from her that she was not allowed to write any letter or to send any information to her father’s house and she was not allowed to do so by the accused persons. They learnt that deceased had to bear with taunts on her for delivering old gold ornaments and old sarees in the marriage and failure of her father to supply balance 4 bharies gold ornaments and also teasing for death of her mother-in-law. In sixth a situation and after such incident dated 23.6.90 when the deceased was tortured in presence of P.W. 11 and P.W. 12 it was not possible for the deceased to handover the letters to P.W. 11 and P.W. 12 for fear of being detection of revealing tortures on her to her sister and other relations of parental house. Considering the writings of deceased in her letters as found in the pages of the diary and also in the letters marked as Exts. 2 and 2/A we clearly find that she was an intelligent lady. She had the suspicion in her mind that the bag of her sister Kakali may be searched and for this reason she secretly without telling anything to anybody kept the letters in the bag of her ‘jamaibabu’ i.e., husband of her elder sister. She knew that, if she handed over the letters to P.W. 11 and P.W. 12 addressed to her mother and elder sister at noon, P.W. 11 and P.W. 12 after reading the same would have charged the husband which conversely would have made her position more adverse or miserable. For this reason deceased Anjana being intelligent secretly kept the letters in the bag of P.W. 11. She knew that, if she handed over letters to P.W. 11 and P.W. 12 in front of her husband or during day time there would have been more torture on her and for that reason she did not handover the letters to P.W. 11 and P.W. 12 during day time or in presence of her husband and secretly kept the letters in bag of P.W. 11 so that the letters can safely reach Durgapur. From the said letters we find that she wrote the letters long back but could not drop those in post office as she was not allowed to go outside and she had the opportunity to send the letters to her parents through P.W. 11 and P.W. 12 when on 23.6.90 they came to her matrimonial home.
39. It is true that during marriage of Anjana P.W. 1 did not play any vital role and he had no knowledge of existence of female accused persons, but that itself is not a ground to discard his evidence. It is quite normal and natural that when father is alive he takes up the entire negotiation of marriage of his daughter and brothers seldom take part in marriage talks, but that itself is not a ground to argue that the brothers had no knowledge about the marriage talks of sister. Here, in this case it is true that father of Anjana made the entire marriage negotiation talks but evidence of P.W. 1 reveals that he was aware of the negotiation talks and learnt from his father. Failure of P.W. 1 to tell in details about the entire marriage negotiation talks is not a ground to disbelieve him. Evidence of P.W. 11 reveals that he was also aware about the marriage negotiation talks at the time of marriage of Anjana with Arup Kar.
40. Mr. Basu also submitted that during examination of accused persons under Section 313. Cr. PC all important circumstances and elements were not put to them and no question was put to them concerning the documents and it-has caused prejudice to the appellants. In our opinion, examination under Section 313 of Cr. PC is very important in criminal trial, and the settled principle of law is that all the important pieces of evidence and elements should be stated to the accused so that he can give his explanation against the evidence and circumstance that transpired during trial. But the law is not that all the points which are irrelevant should be stated to the accused. It is true that during examination under Section 313 of Cr. PC no question was put to the accused persons particularly to accused Arup Kar concerning the letters written by deceased Anjana. But the question was put to accused Arup Kar that one diary was seized from the drawer of the dressing table and in the reply to that question accused Arup Kar stated that he was not present in the house. It would have been better if the learned Trial Court was more elaborate in that question or putting another question thereby placing before the accused that in that diary ‘Jamaibabu’ i.e., husband of her elder sister. She knew that, if she handed over the letters to P.W. 11 and P.W. 12 addressed to her mother and elder sister at noon, P.W. 11 and P.W. 12 after reading the same would have charged the husband which conversely would have made her position more adverse or miserable. For this reason deceased Anjana being intelligent secretly kept the letters in the bag of P.W. 11. She knew that, if she handed over letters to P.W. 11 and P.W. 12 in front of her husband or during day time there would have been more torture on her and for that reason she did not handover the letters to P.W. 11 and P.W. 12 during day time or in presence of her husband and secretly kept the letters in bag of P.W. 11 so that the letters can safely reach Durgapur. From the said letters we find that she wrote the letters long back but could not drop those in post office as she was not allowed to go outside and she had the opportunity to send the letters to her parents through P.W. 11 and P.W. 12 when on 23.6.90 they came to her matrimonial home there were writings of deceased Anjana and in the pages of that diary she wrote those two letters. Failure of the Trial Court to place the question concerning letters written by Anjana in our opinion did not cause any prejudice to the accused Arup Kar when question was put to him relating to recovery of seizure of the diary on which there were writings of deceased Anjana.
41. There is no ground to disbelieve the evidence of P.W. 1, P.W. 11, P.W. 12, P.W. 15 and P.W. 16 and their evidence establishes the story of torture on Anjana. If we exclude the letters of Anjana marked Exts. 2 and 2/A from our consideration, the evidence of P.W. 11 and P.W. 12 proves torture on Anjana and torture was done on her by Arup Kar in presence of P.W. 11 and P.W. 12 on 23.6.90 which we have discussed earlier. Their evidence discloses the cruel and ruthless desire of Arup Kar when he disclosed stating that a day will come when he will laugh and reversely his mother-in-law shall be weeping. The accused was fully aware what were the charges as well as the nature of oral and documentary evidence of prosecution witnesses and circumstances which were introduced in Court during trial. In question numbers 11 and 15 of Arup Kar during his examination under Section 313, Cr. PC it was put to him that he rebuked and taunted Anjana for giving old ornaments and sarees in marriage and that he and other in-laws were not satisfied with the ornaments given in marriage and over that tortured her. Question numbers 10,11,14,15 and 16 of 313 examination of Arup Kar discloses that incident of 23.6.90 were put to him along with torture and such questions were sufficient compliance of placing of elements of torture soon before her death to the husband. Accordingly, failure to place question concerning the letters of deceased during 313 examination did not cause any prejudice to the accused persons.
42. It was further argued by Mr. Basu for the appellants that evidence of handwriting expert is not always safe and it is difficult to rely on his evidence. The physics practical note book does not show name of any institution or University and accordingly it was a document which was created for this case. In support of his contention Mr. Basu relied upon a decision in Magan Behari Lai v. State of Punjab, reported in 1977 SCC (Cri) 313. We are not convinced with this submission. We have carefully perused the alleged handwritings of deceased Anjana as it appearing in different pages of the diary which was marked as material Ext. 9 and the writings being Ext. 3 series in different pages. Under Section 73 of the Evidence Act Court has authority and jurisdiction to compare the handwritings and Court is expert of all experts. A careful perusal of the handwritings of the deceased made by us in Exts. 2 to 2/A and her other writings as appearing in other pages of the diary marked as Ext. 3 series and noticing the pen movement and direction of letters ‘kha’, ‘gha’, ‘sa’, manner of execution of ‘fa’, ‘tha’, ya’, ‘chha’, ‘ja’, ‘da’, finishing of ‘daa’, ‘sha’, ‘pa’, head stroke of T, ‘u’ and general features of slanting, spacing etc, lead us to inescapable conclusion that all the writings were from the pen of same author. Here we fully agree with the opinion of handwriting expert P.W. 15 and we are firm in our opinion that the question letters and other writings were the handwriting of deceased Anjana.
43. Mr. Basu thereafter, submitted that in the charge under Section 498A of the IPC only one date was mentioned i.e., the incident dated 23rd Baisakh corresponding to 7th May, 1990. No other date was mentioned concerning torture demanding dowry. In our opinion, this submission is to some extent not properly true as inside the body of the said charge it has been mentioned that soon after the marriage within a period of one month they subjected Anjana Palit @ Kar to cruelty both physically and mentally and thereby committed an offence under Section 498A of the IPC.
44. Mr. Basu further submitted that from evidence of P.W. 11 and P. W. 12 it appears clearly that the female accused persons were not present at Rampurhat at the time of alleged torture. The other appellant Tapan Kar has already expired. From evidence of the witnesses it has been transpired that the female accused persons reside in their respective matrimonial homes at Durgapur and Bolpur. There is no sufficient material against them to hold them guilty under Sections 498A and 304B of the IPC. Against the husband also there is no sufficient element of torture demanding dowry. The evidence and circumstances that transpired in trial do not fulfil the essential requirements of offence under Section 304B of the IPC as well as under Section 498A of IPC. The findings of the Trial Court are erroneous and not in accordance with law and accordingly the judgment of conviction and sentence should be set aside. Let us discuss whether contention of Mr. Basu is acceptable or whether prosecution was able to establish elements of Sections 498A and 304B of IPC.
45. The deceased Anjana Kar (Palit) came to her matrimonial home with high hopes, aspirations and zeal of leading a happy conjugal life with her husband. She was not an expert cook before marriage as it appears from recording of recipe of different foods and items of cooking as found in her standard handwriting (Ext. 3 series) in the diary. Inside the diary in different pages she expressed her grievances addressing letters to her husband, her eldest brother, her parents and ‘bardi’, ‘chordi’ who are female accused persons. We have checked the different pages of the said LIC diary and each page of diary contain two dates indicating that half page of the diary is meant for one day and the balance half for the next date or day. It was argued that the letters written by the deceased which were found in the bag of P.W. 11 were manufactured and fabricated though we have rejected by our reasoning such contention of the appellants. After checking the diary we find that those two letters were written in four pages of the diary which covers dates 24th July, 1990 to 31st July, 1990. Inside the diary we have not found pages of the diary from 24th July to 31st July. After 23rd July the next page of the diary is with date 1st and 2″d August, 1990. It proves that those pages of diary were torn by the deceased herself and she wrote the letters addressed to her mother and elder sister which she secretly put inside the bag of P.W. 11. Accordingly, no question can be raised to doubt the genuineness of the letters which were in fact written by deceased herself and were marked as Exts. 2 and 2/A. The contention of the appellants that the letters were fabricated and manufactured is accordingly rejected.
46. Next we propose to discuss points of law as to whether in this case elements of Sections 498A and 304B of the IPC were established against the appellants. We have already discussed evidence at length and we do not like to repeat the entire evidence except for the reference relating to legal principles. The Supreme Court in Ramesh v. State of Chattisgarh , observed that,
However, teasing by the accused-appellant of the deceased, ill-treating her for her mistakes which could have been pardonable and turning her out of the house, also once beating her inside the house at the odd hours of night did amount to cruelty within the meaning of Section 498A, IPC and therefore we agree with the Trial Court as also with the High Court, though to some extent at variance with the cause for cruel treatment, that the accused-appellant subjected the deceased Seema to cruelty and therefore conviction of the accused-appellant under Section 498A deserves to be maintained.
47. In Mohd. Hoshan v. State of A.P. , the
Supreme Court held that,
Whether one spouse has been guilty of cruelty to the other is essentially a question of fact. The impact of complaints, accusations or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the individual victim concerned, the social background, the environment, education etc. Further, mental cruelty varies from person to person depending on the intensity of sensitivity and the degree of courage or endurance to withstand such mental cruelty. In other words, each case has to be decided on its own facts to decide whether the mental cruelty was established or not. The High Court in the present case, having regard to the facts found and circumstances stated, rightly concluded that the continuous taunting or teasing the deceased by the appellants on one ground or the other amounted to mental cruelty drawing her to end her life. As found by the learned Sessions Judge, out of 11 months of marriage life, the deceased was forced to live in her parents’ house and could live with her husband for a period of 2 months in different spells.
The Supreme Court in that reported decision held that High Court was right and justified in reversing the order of acquittal and convicting and sentencing the appellant for the offences under Sections 306 and 498A of IPC.
48. In Paioan Kumar v. State of Haryana ,
the Supreme Court observed that,
In our considered opinion, cruelty or harassment need not be physical. Even mental torture in a given case would be a case of cruelty and harassment within the meaning of Sections 304B and 498A, IPC. Explanation (a) to Section 498A itself refers to both mental and physical cruelty, in view of explanation (a) the argument is, before it constitutes to be a cruelty there has to be wilful conduct. Again wilful conduct means, conduct wilfully done; this may be inferred by direct or indirect evidence which could be construed to be such. We find, in the present case, on account of not satisfying the demand of the aforesaid goods, right from the next day, she was repeatedly taunted, maltreated and mentally tortured by being called ugly etc. A girl dreams of great days ahead with hope and aspiration when entering into a marriage, and if from the very next day the husband starts taunting her for not bringing dowry and calling her ugly, there cannot be greater mental torture, harassment or cruelty for any bride. There was a quarrel a day before her death. This by itself, in our considered view, would constitute to be a wilful act to be a cruelty both within the meaning of Section 498A and Section 304B, IPC
49. There is no doubt in the present case that there was repeated demand from the husband’s side from the girl and her parents for the various articles as aforesaid and on failure, the girl was tortured, harassed by words and deeds, amounting to cruelty. As we have held above, just one day before the fateful day, the husband saturated the mental agony and cruelty by quarrelling with the wife (deceased) even at her sister’s place, leaving no option which lead the deceased to commit suicide. This mental state is further clear by the following words which she spoke to her sister, “it would be difficult now to see her face in the future.” In our opinion, all these would constitute to be an act which would be an abetment to the commission of suicide by the girl.” In the said reported decision the Supreme Court affirmed the conviction and sentence under Section 304B of IPC and also under Section 306 of IPC and under Section 498A of IPC.
50. Before we come to our final conclusion as to whether elements of Sections 498A and 304B of the IPC were proved against the appellants we think it fruitful to quote the relevant sections of law.
51. Section 304B of the IPC runs as follows:
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 purposes of this sub-section, ‘dowry’ shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1964 (28 of 1961).
52. Section 498A of the IPC runs as follows:
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 purposes 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.
53. Section 2 of the Dowry Prohibition Act, defines ‘dowry’ as follows:
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 too 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 dowry or mehr in the case of persons to whom the Muslim Personal Law (Shariat) applies.
54. Section 113A of the Evidence Act runs as follows:
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 7 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.
Explanation.–For the purposes of this section, ‘cruelty’ shall have the same meaning as in Section 498A of the Indian Penal Code (45 of 1860).
55. Section 113B of the Evidence Act runs as follows:
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.
Explanation.–For the purpose of this section, ‘dowry death’ shall have the same meaning as in Section 304B of the Indian Penal Code.
56. Analysis of Section 304B of the IPC shows that the following essential features are to be established to prove a case under that section:
1) The death of a woman should be caused by burns or bodily injury 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 and
4) such cruelty or harassment should be for or in connection with demand for dowry.
57. We do not think that any citation of decision of Supreme Court is necessary in support of our contention relating to essential ingredients of Section 304B of the IPC. There are catena of decisions of the Supreme Court over this point in which the above stated four essential ingredients of Section 304B of IPC were laid down by the Supreme Court See Shanti v. State of Haryana ; Pawan Kumar v. State of Haryana (supra). Demand of dowry may not be in writing or in the form of agreement in each case. Demand of dowry may be oral also. The Dowry Prohibition Act, 1961 was enacted to check dowry deaths which were continuing despite the then prevailing laws. The object was not achieved and there were amendments by amending various provisions of the said Act and the related provisions under the Indian Penal Code and the Evidence Act. For that purpose Section 304B of the IPC was introduced and also the Section 498A of the IPC. At the same time, Sections 113A and 113B were introduced in the Evidence Act. Earlier, the definition of ‘dowry’ was limited to the time at or before the marriage, but after the amendment of the Act by Act 43 of 1986 w.e.f. 19.11.86 the definition of ‘dowry’ was extended to the period even after the marriage.
58. In the present case, the evidence of the aforesaid P.Ws. are very clear and convincing. After a few days of the marriage, there was torture on the deceased Anjana as well as teasing and taunting on her for not supplying the gold ornaments as promised in the marriage and also not providing with ‘benarasi’ saree. From evidence of the aforesaid P.Ws. it appears that the bridegroom party demanded 10 bharies of gold ornaments which could not be supplied by father of the deceased and her father was able to hand over at the time of marriage only gold ornaments of 6 bharies. They could not supply ‘benarasi’ saree in spite of their intention to deliver the same. The husband and others were not satisfied with the items given in the marriage by the father of the deceased and in presence of P.W. 11 and P.W. 12 the husband again taunted deceased saying that he was provided with old gold ornaments and old sarees. She was physicaly tortured also by the husband in presence of P.W. 11 and P.W. 12 when the husband twisted the hand of deceased. Not only that, the husband again teased her on 23.6.90 in presence of P.Ws. saying that the deceased was responsible for the death of his mother. From evidence it transpired that the husband and other in-laws teased the deceased saying her unlucky and witch. The demands as transpires from evidence cannot be said to be not in connection with the marriage. Hence the evidence clearly establishes demand for dowry in connection with the marriage and in the circumstances of the case constitutes to be a case falling with definition of dowry under Section 2 of 1961 Act and Section 304B of the IPC. There was torture also both physically and mentally on the same demand of dowry and it establishes the elements of offence under Section 498A of the IPC.
59. We have already explained that the letters of the deceased marked as Exts. 2 and 2/A gives us a picture of her sad experience and the torture, the taunts and the teasing she was receiving from his husband, her sister-in-laws and one brother-in-law in her matrimonial home after her marriage. The said letters discloses that the appellants teased her stating that her father delivered only 6/7 bharies gold instead of 10 bharies gold and did not supply ‘benarasi’ saree. She was also teased and held responsible for the death of her mother-in-law which occurred within 14/15 days of her marriage. Evidence of P.W. 11 and P.W. 12 revealed the detailed story as to how the husband tortured the deceased both physically and mentally in presence of such witnesses. If in presence of P.W. 11 and P.W. 12, the husband showed such a conduct it can easily be understood what conduct and behaviour the deceased received from her husband at night in their bed room, and it is clear in evidence that next afternoon i.e. on 24.6.90 the deceased committed suicide.
60. The evidence clearly proves torture on the deceased ‘soon before her death’ and it attracts one of the essential requirements of Section 304B that ‘soon before her death’ she was subjected to cruelty or harassment by her husband and it also fulfils the ingredients of Section 113B of the Evidence Act. Under explanation to Section 113B of the Evidence Act there is presumption that such death is on account of dowry death. Under Section 8A of the Dowry Prohibition Act which came into force w.e.f. 2.10.85 for taking or abetting any dowry, the burden to explain is placed on such person against whom the allegation of committing an offence is made. After such evidence the entire burden was on the accused appellants to prove otherwise. The aforesaid evidence on the basis effects and circumstances bring to an inescapable conclusion that the incident of torture by the husband both physically and mentally as stated by P.W. 11 and P.W. 12, a day before the actual death of the deceased cumulatively with other evidence constitutes to be cruelty and harassment in connection with marriage and it has direct relation with the preceding evidence of demand of dowry and renewal of demand of dowry and as such in the present case the evidence and the circumstances covers both elements of the offences under Sections 304B and 498A of IPC. It was open to the accused persons to prove otherwise or dispel the evidence by means of evidence to destroy the deeming clause. The husband and others did not lead any evidence to dispel the presumption of the aforesaid sections as well as the prosecution evidence. The evidence clearly includes and proves harassment to the deceased within the meaning of Section 498A(b) as she was repeatedly coerced, teased, taunted for not meeting the demands leading to her mental torture and agony which ultimately led her to commit suicide. After scrutinising the evidence of prosecution witnesses namely, P.W. 1, P.W. 11, P.W. 12, P.W. 15, P.W. 16, P.W. 19 and P.W. 20 we find no ground to disbelieve their evidence and there was no defect or lacuna in their cross-examination which can impair value of their evidence. The learned Trial Court rightly believed the testimony of the said witness.
61. From Exts. 2 and 2/A as well as the letter found in the diary addressed to the husband (Ext. 3/4) the deceased clearly mentioned that her body and flesh was still pure which was indicative of the fact that before marriage she had no physical relation with anybody. But her husband did not try to understand her and suspected her on character and for that reason the husband did not use to behave well with her and seldom used to talk with her. From the trend of defence suggestion we find that the appellants tried to suspect her for an affair with one Uttam Biswas. From evidence of I.O. (P.W.19) it appears that after concluding investigation he came to the conclusion that Anjana had no intimacy with Uttam. Uttam Biswas as P.W. 20 in his evidence clearly stated that Anjana was not known to him and he had no relationship with her. It has been proved from cogent evidence that the husband under a mistaken suspicion or belief unnecessarily doubted his wife on her character which was totally unfounded.
62. In view of our discussion made above we find that prosecution was able to prove its case beyond all reasonable doubts against the husband Arup Kar and has been able to bring home both the charges against the husband. The Trial Court rightly convicted the husband Arup Kar under Sections 304B and 498A of IPC and we affirm the judgment and order of conviction of Arup Kar under Sections 498A and 304B of IPC.
63. In the letters the deceased made allegations against the sister-in-law’s concerning harsh words on her. In our opinion, those two letters in this case cannot be regarded as admissible evidence under Section 32 of the Evidence Act to prove torture on her demanding dowry by the female accused persons. Principal witnesses namely P.W. 1, P.W. 11, P.W. 12 and P.W. 16 did not specifically state in their evidence nature of torture perpetrated by the female accused persons on the deceased demanding dowry. Their evidence against the female accused persons are of general nature. The letters of deceased marked as Exts. 2 and 2/A reveals that the female accused persons used to tease her, taunt her by using harsh languages and they were in the habit of taking away different articles from their parental home visiting the parental home after gap of 10/12 days. No such evidence transpired from P.W. 1, P.W. 11, P.W. 12 and P.W. 16 against the female accused persons. From evidence of P.W. 11 and P.W. 12 it appears that on 23.6.90 the female accused persons were not present in the matrimonial home of Anjana. The test of proximity behind the death of deceased to attract elements of torture “soon before her death” cannot be applied against the female accused persons and also the elements of torture within the ambit of Section 498A, IPC. We find that in this case evidence is mainly confined against the husband and not against the female accused persons i.e. the sister -in-laws of the deceased. Hence, considering the evidence on record so far as appellant Nos. 3 and 4 namely, Maya Mitra and Chhaya Mitra are concerned, we extend to them benefit of doubt and acquit them of the charges under Sections 304B and 498A of the IPC.
64. Two female witnesses namely, Dhira Mukherjee and Pratima Some were examined by the I.O. and their statements under Section 161 of Cr. PC were also recorded but they were not examined in Court. We fail to understand what was the need of cross-examining the I.O. in respect of statement of those two female witnesses when the defence was that female accused persons were residing at their matrimonial homes at Durgapur and Bolpur respectively. 161, Cr. PC statements are not substantive evidence and how it can be used has been laid down in 162 of Cr. PC. The defence due to such cross-examination was able to bring access of the female accused persons at least twice into their parental home which was the matrimonial home of deceased Anjana. Fortunately for them, the evidence of P.Ws. 1, 11, 12 and 16 was not specific on torture by female accused persons and the letters of deceased did not reveal specific parts of female accused persons and their absence on 23.6.90 in their father’s house when P.W. 11 and P.W. 12 experienced torture on deceased by the husband and as 161, Cr. PC statements cannot be regarded as substantive evidence we extend benefit of doubt to the female accused persons.
65. In view of the discussion made above and the aforesaid reasons we partly allow the appeal. The appellant No. 1 has already expired and the appeal has abated against him. Conviction and sentence of appellant No. 2 Arup Kar, the husband are maintained but the conviction and sentence of appellant Nos. 3 and 4 namely Maya Mitra and Chhaya Mitra are set aside.
66. Considering the facts, evidence, materials on record and circumstances of this case we are of opinion that it would meet ends of justice if we reduce the sentence of appellant Arup Kar to seven years rigorous imprisonment from ten years rigorous imprisonment for the offence under Section 304B of the IPC. Accordingly, we reduce the sentence of appellant Arup Kar to seven years rigorous imprisonment for offence under Section 304B of IPC and maintain the sentence under Section 498A of the IPC and direct that both the sentences would run concurrently. The appellant Nos. 3 and 4 are hereby acquitted and as they are on bail granted by a Division Bench of this Court they are discharged from their bail bonds and set at liberty, if not wanted in connection with any other case.
Criminal section is directed to send down the Lower Court Records along with copy of judgment and order to the Trial Court for information and necessary action.
Partha Sakha Datta, J.