Calcutta High Court (Appellete Side)
In Re : Bhairab Chandra Ghosh @ Bhairab ... vs State Of Punjab As Reported In Air 2000 ... on 21 June, 2013
Author: Toufique Uddin
Bench: Toufique Uddin
1
21/06/2013
CRA No. 495 of 2011
with
CRA No. 529 of 2011
with
CRAN No. 443 of 2013
CRA No. 495 of 2011
In re : Bhairab Chandra Ghosh @ Bhairab Ghosh
... Petitioner
Mr. Sandipan Ganguly
Mr. Sourav Chatterjee
Mr. Rajiv Lochan Chakraborty
... For the appellants
CRA No. 529 of 2011
In re : Smt. Gita Adhikary & Shyamal Adhikary
... Petitioner
Mr. A. K. Dutta
Mr. Madhusudan Sur
... For the appellants
Mr. Manjit Singh
Ms. Rituparna De
... For the State
These two appeals arose out of same judgment and order of
conviction dated 19.8.11 and 20.8.11 passed by the learned
Sessions Judge, 3rd Court, Bankura in Sessions Trial no. 1(6) of
2001 thereby convicting the appellants for commission of offence
under Section 498A/304B/201 IPC and sentencing them
accordingly.
In the background of this revision the fact in a nutshell is that
the complainant Sujit Bandopadhyay lodged a written complaint
before Sonamukhi P.S. to the effect that Malati, his sister was
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married with Shaymal Adhikari on 18th Magh, 1404 B.S. as per
Hindu rites and rituals. A sum of Rs. 22000/- was paid as dowry
amount although there was a talk of Rs. 25000/- at the time of
marriage. They assured payment of remaining amount of
Rs. 3000/- within a period of 3 years. After marriage his sister used
to reside in the house of her parents-in-law. Due to non-payment of
balance dowry amount they used to inflict torture on his sister. One
female child took birth. Due to birth of female child torture
enhanced. At the time of rice ceremony of the daughter of his sister
he paid a sum of Rs. 1000/- to the members of her in-law's place.
The rice ceremony took place 15/20 days before her death. On
17.10.95, at 4 a.m, one Puran Mondal of village Ranpur came to their house and informed that his sister had been admitted to Sonamukhi hospital being attacked with diarrhea. Hearing such news he and one Gopinath Banerjee, his cousin brother went there. On the way, they came to know from Puran Mondal that his sister has been released from hospital and was brought to Ranpur village and she was well. When they reached the house of his sister's father-in-law at Ranpur village, he saw that someone was lying in covered condition in the verandah of their house. On query, his bhagnipati Shyamal, the husband of the victim showed the covered body. On opening the cover he found the dead body of his sister. He found marks of injury on her neck, head and face. There was bleeding from her nose and mouth. Seeing such bleeding, he raised shout. Then Gopinath Banerjee and he were confined in a room under lock and key by Manik Mondal, Anil Pan and others. They 3 were also threatened with dire consequences. The dead body of his sister was carried by Manik Mondal, Anil Pan, Harinarayan Mondal, Bhairab Chandra Mondal and others for the purpose of cremation. The brother of the victim and Gopinath Banerjee saw the entire incident through the window of the room where they were confined by the accused persons. At 1.30 p.m. his mother and father came to the house of the father-in-law of his sister. They were also confined in the same room. At around 8 p.m., Manik Mondal, Anil Pan and Shyamal Adhikary being armed with lathi and sword entered into that room and threatened them with dire consequences and compelled them to write on a blank paper that death of his sister was natural. They put signatures on the paper as per instruction of his parents. His parents also put signatures on the said paper. At 8.30 p.m. they were released from the said room by the accused persons. They reached their house at 2 a.m. (night).
A complaint was lodged with the Sonamukhi P.S. On completion of investigation, the police submitted charge sheet against the accused persons.
The case was committed by the learned Magistrate to the learned Court of Sessions, Bankura.
On hearing of both sides, the learned Trial Court framed charges against the accused persons under Section 498A/304B of the Indian Penal Code. The contents of the charges were read over and explained to the accused persons, who pleaded not guilty and claimed to be tried.
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To contest this case, the prosecution examined as many as 13 witnesses, while none was examined on the side of the defence.
However, the accused persons were examined under Section 313 of the Code of Criminal Procedure.
The defence case, as appeared from the trend of cross- examination of the witnesses as well as the replies given by the accused persons at the time of examination under Section 313 of the Code of Criminal Procedure, is denial of offence with a plea of innocence.
On trial, the learned trial court convicted the present appellants by the impugned judgment.
The point for consideration is if the impugned judgment suffers from any material irregularity and calls for any interference or not.
Section 498A/304B of the Indian Penal Code read as under:
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 willful 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 5
(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.
Section 304B of the Indian Penal Code.
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".
The learned counsel for the appellants of CRA No. 529 of 2011 submitted that Gita Adhikary and Shaymal Adhikary attempted to give clinching evidence against the appellants regarding the torture on the ground of demand of dowry but there was not at all any torture proved in this case. Further, it was contended that there was no harassment over demand of dowry.
The learned counsel for the appellants of CRA No. 495 of 2011 submitted that in this case, there is no iota of evidence available against the appellants Bhairab Ghosh, Harinarayan Mondal, Manik Mondal etc. They were also not identified. No T.I. parade was held. 6 The offence under Section 201 IPC has not been proved against them.
The learned counsel for the State strenuously argued that this is a case the findings of the learned court below should not be disturbed.
To appreciate the case in a better way some pieces of evidence are required to be considered.
Ext. 1 is the complaint lodged by the brother of the victim. It was stated therein that there was a talk of dowry to be paid at the time of marriage to the extent of Rs. 25000/-. Out of that amount, Rs. 22000/- was paid at the time of marriage and Rs. 3000/- was due. Due to non-payment of the balance amount of dowry his sister was subjected to physical and mental torture. It was further stated that at the time of rice ceremony of the daughter of his sister, he went to his sister's in-law's place and he paid Rs. 1000/- and Rs. 2000/- was promised to be paid as early as possible. On 17.10.95, at 4 a.m, one Puran Mondal of village Ranpur came to their house and informed that his sister had been admitted to Sonamukhi hospital being attacked with diarrhea. The complainant and his brother set out for Ranpur village and after reaching the house of father-in-law of his sister, they found the dead body of his sister. They saw marks of injury on her body and there was bleeding from her ear and mouth. The complainant cried out. The accused persons locked them in a room inside the house. Around 1.30 p.m. his parents came there and they were also kept confined in the same room. Subsequently, by force and under threat they were 7 made to sign on two papers declaring that the victim died of a natural death. After taking signature on the paper they were released. It further transpires that the dead body showed marks of injury in neck, mouth and bleeding was oozing from ear and mouth and when he cried out and wanted to know who is responsible for this and who murdered his sister, the accused persons threatened them and forcibly locked them in a room.
PW 1 is the defacto-complainant who echoed what has been stated in the complaint. In cross-examination one suggestion was given that out of illness his sister died. But it was flatly denied by him. It is true that a suggestion was given to him that in the complaint he did not tell that the names of the members of the in- law's family of the victim who used to inflict torture due to non- payment of balance amount of dowry. He admitted the omission but at the same time, simply on this omission the totality of the case shall not be thrown away because the FIR is not the encyclopaedia The other aspect of the matter has also been noted. It was suggested that under the conspiracy of some persons of his village the complainant lodged the complaint. But it has not been substantiated by the accused persons to prove so because to prove this onus is on them.
PW 2 heard that wife of Shyamal died. His cross-examination is dangerous. It reveals from his statement that the village people cremated in the night the dead body of the wife of Shyamal, the husband of the deceased. There is no evidence that he saw any person of the deceased's parental house at the P.O. 8 PW 3 was simply tendered.
PW 4 did not enquire how the victim expired.
PW 5 spoke about the mental and physical torture made out to the victim by the members of the in-law's family i.e. the husband and the parents-in-law on the ground of non-fulfillment of further dowry money. Malati was his cousin sister. He noticed injury on head of Malati and blood oozing from her mouth, nose and ear. He said Shyamal and other villagers cremated the dead body. They took signature on a paper against his will.
PW 6 noticed injury marks on head and mouth and neck of the deceased and blood oozing from nose and ear. He stated that they were kept confined and locked by the accused persons in a room at the victim's in-law's place. They did not cremate the dead body. Shyamal alongwith others took signature of them in a paper against their will. PW 6 denied that the dead body was cremated in their presence. He is full blood brother of the deceased. He corroborated the prosecution case.
PW 7 supported the prosecution case by proving that the victim was tortured on the ground of non-fulfillment of dowry and injuries were caused on the person by the accused persons.
PW 8 is declared hostile. A comparison of his evidence with that of I.O. PW 13 shows that he is not a trustworthy witness.
PW 9 and PW 10, the father and the sister-in-law totally corroborated the prosecution case. They stated about torture inflicted upon the victim by the accused persons on the ground of balance amount of dowry money as Rs. 25000/- was settled as the 9 dowry amount at the time of marriage and Rs. 3000/- was due. There is little scope to disbelieve their evidence that the deceased reported to them the fact of torture when she came to their house.
PW 11 submitted the charge-sheet only. He did nothing of investigation.
PW 12 was declared hostile.
PW 13 is the I.O. who after investigation submitted charge- sheet against the accused persons. His evidence shows that PW 8, Kartick Mondal told him that there was dispute between Malati and her husband owing to the due amount of dowry money to be paid by the parents of Malati.
The accused persons were asked pinpointed questions at the time of examination under Section 313 of the Code of Criminal Procedure over the torture for non-fulfillment of dowry money and also over the marks of injury found on the person of the dead body but the accused persons denied all the allegations. They were also asked on the question of hurried cremation of the dead body of Malati in absence of her relations.
Unnatural death at in-laws place obviously causes eyebrows. A victim woman may commit suicide by hanging or burning for various reasons. A woman ties the knot of marriage only to find peace and shelter in safe and sound care of her husband. Any departure of such human behaviour has to be taken with a grain of salt. It is not expected from parents or relations of acquaintances that they will falsely rope husband and his relations only to wreck vengeance and punish husband or her in-laws even when the victim 10 dies due to her extra-marital relationship if any or mental frustration or depression etc. on account of other reasons. The probative value and intention of witnesses has to be taken with a touch of ground reality keeping in view the fact that their beloved known victim was tortured and that is why the death was propelled.
To attract section 304B of the Indian Penal Code , the following conditions must be fulfilled:
(i) the death of woman must have been caused by burns or bodily injury or otherwise than under normal circumstances;
(ii) such death must have occurred within seven years of her marriage;
(iii) soon before her death, the woman must have been subjected to cruelty of harassment by her husband or any relatives of her husband;
(iv) such cruelty or harassment must be for, or in connection with demand for dowry.
When the above ingredients are established by reliable and acceptable evidence, such death shall be called dowry death and such husband or his relatives shall be deemed to have caused her death. If the abovementioned ingredients are attracted in view of the special provision, the court shall presume and it shall record such fact as proved unless and until it is disproved by the accused. However, it is open to the accused to adduce such evidence for disproving such compulsory presumption as the burden is 11 unmistakably on him to do so and he can discharge such burden by getting an answer through cross-examination of prosecution witnesses or by adducing evidence on the defence side.
Section 113B of the Indian Evidence Act, 1872 speaks about presumption as to dowry death which reads as under:
"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 has caused the dowry death.
It has come from the evidence that soon after the incident when the parents of the deceased and her brother had been to the house of in-law's place, they were kept confined in a room and thereafter the dead body was taken for cremation. This gives rise to a question why the accused persons confined them. The story of prosecution is that they were confined and forcibly asked to declare a statement that the victim died a natural death. Over this point no exaggeration appears to have been surfaced because though the onus is on the prosecution to prove the case yet in such a situation, the onus is on the accused persons to prove that they did not confine the relations of the victim when they had been to their place. It is also not clear why they have not for holding the p.m. examination by a doctor. Why so hurriedly the dead body was cremated has not been explained properly. This fact establishes that onus lies not on the prosecution, but on the defence. There is 12 also no evidence that the relations were brought at cremation ground.
Now the question is whether the oral evidence on the prosecution side can be relied upon. In this regard, there is no eye- witness.
I like to put on record that there are divergent opinions propounded by different courts but what has to be taken up is a matter of question.
In Kansraj -vs- State of Punjab as reported in AIR 2000 SCC 2324 the Hon'ble Apex Court held "the statement made by the deceased wife to her parents, brothers and acquaintances before her death would not be admissible in evidence in view of provisions of Section 32 of the Evidence Act.
In (2010)1 SCC (Cri.) 955 (Bhairan Singh -vs- State of Madhya Pradesh, the Hon'ble Apex Court held that the statement of dead person is admissible in law if the statement is as to cause of death or as to any circumstances of transactions which resulted in her death in a case in which cause of death comes to the question. In case where the deceased had told the witnesses against the accused persons, above torture and harassment, is inadmissible under Section 32(1) and such evidence cannot be looked into for any purpose.
In Biplab Chakraborty vs. State of Tripura Laws (Gau)-2011- 3-63, the Hon'ble High Court held that "prosecution has to prove alleged cruelty. All the witnesses in the present case, who have deposed have only stated what according to them was told by the 13 deceased to them with respect to the harassment meted out to her by her husband". None of these statements come within the purview of Section 32 of the Evidence Act.
In Amar Singh vs. State of Rajasthan reported in (2010) 9 SCC 64 the Hon'ble Supreme Court held as follows :
"A. Penal Code, 1860 - Sections 304B and 498A and Section 113B, evidence Act, 1872 - Presumption as to dowry death - When arises- Prosecution proving that soon before her death deceased had been subjected by appellant to taunts in connection with demand for dowry - Held, once such a fact is established, court has to presume that appellant has committed offence under Section 304B- It is for appellant to rebut this presumption- appellant had not examined any defence witness to rebut the presumption and in his examination under Section 313 of the Code of Criminal Procedure had merely denied the allegations- Hence, conviction of appellant sustainable.
B. Evidence Act, 1872- Sections 32(1) and 60- "circumstances of transaction which resulted in death"- admissibility of statement made by living person under Section 32(1) - Held, even if deceased was nowhere near expectation of death, still her statement would become admissible under Section 32(1) , though not as a dying declaration as such, provided it satisfies one of the two conditions set forth therein - statements made by deceased before PWs 4 and 5 (her mother and brother respectively) that appellant used to taunt and harass her for dowry within couple of months 14 before her death- Held, evidence of PWs with regard to statement made by deceased is no doubt hearsay, but is admissible under Section 32(1) as to "circumstances of transaction which resulted in her death" - criminal trial - Confession- Extra-judicial confession/Heresay- admissibility".
In Mustafa Shahadal Shaikh -vs- State of Maharashtra reported in (2013)1 SCC (Cri) 664, the Hon'ble Apex Court held that " dowry death-suicide by bride within 7 months of marriage by consuming poison-application of evidence - cruelty-proximity test - Soon before her death' -Related witnesses only- conviction confirmed.
It was held therein in a case of this nature that is matrimonial death, outsiders cannot be expected to come and depose what had happened in family of deceased - time period which can come within term soon before her death is to be determined by courts depending upon facts and circumstances of each case.
Though language used is "soon before her death", no definite period has been enacted and the expression "soon before her death"
has not been defined in both the enactments (Section 304B IPC and Section 113B, Evidence Act), accordingly, determination of period which can come within term "soon before her death" is to be determined by courts, depending upon facts and circumstances of each case. However, the said expression would normally imply that interval should not be much between cruelty or harassment concerned and death in question. There must be existence of a 15 proximate and live link between effect of cruelty based on dowry demand and death concerned. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of woman concerned, it would be of no consequence.
In (2013) 1 SCC (Cri) 199 Tulshiram Sahadu Suiryawanshi & Anr. -vs- State of Maharashtra, the Hon'ble Supreme Court held that " A fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as to the most probable position. The above position is strengthened in view of Section 114 of the Evidence Act, 1872. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process, the courts shall have regard to the common course of natural events, human conduct, etc. in addition to the facts of the case. In these circumstances, the principles embodied in Section 106 of the Evidence Act can also be utilized. Section 106 however, is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but it would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, has offered an explanation which might drive the court to draw a different inference. (Soon after death, the accused persons were not found present at their home). 16
In 2013 CRI L.J. 689 (Kashmir Kaur & Anr. -vs- State of Punjab, the Hon'ble Apex Court has held that " Section 304B is an exception to the cardinal principles of criminal jurisprudence that a suspect in the Indian law is entitled to the protection of Article 20 of the Constitution, as well as, a presumption of innocence in his favour . The concept of deeming fiction is hardly applicable to criminal jurisprudence but in contradistinction to this aspect of criminal law, the legislature applied the concept of deeming fiction to the provisions of Section 304B IPC. Such deeming fiction resulting in a presumption is, however, a rebuttable presumption and the husband and his relatives, can, by leading their defence prove that the ingredients of Section 304B were not satisfied. The specific significance to be attached is to the time of the alleged cruelty and harassment to which the victim was subjected to the time of her heath and whether the alleged demand of dowry was in connection with the marriage. Once the said ingredients were satisfied it will be called dowry death and by deemed fiction of law the husband or the relatives will be deemed to have committed that offence."
The case at hand shows that 15/20 days before the fateful day of death of the victim, the rice ceremony of the victim's daughter took place. That day PW 1 went to accused's house and paid Rs. 1000/-. But his sister told that her mother-in-law and husband were inflicting torture on her due to non-payment of balance dowry amount. The gap of 15/20 days may be termed as 'soon before death' as the flame of anger over non-payment of rest part of dowry 17 money still persisted, as appears from the version of victim, disclosed to PW 1. So the probative link between the factum of death and the origin of torture soon before her death is found established in this case.
A question may arise that whether simply basing on the statement of the relation-witness who heard about the factum of torture from the mouth of the victim or her relation can be taken into consideration or not. The court is not only for the prosecution but also for the defence. The duty of the court is not to purge materials on record only to pick up holes and infirmities to let off real culprits. There may be certain situations when the findings of the court should have a touch of sensitivity derived out of the probability of particulars offence. In this type of case a young woman left the world for good. Whether she had any mental injury otherwise or was frustrated in love affairs elsewhere or she died or for any other pain or of disease are the questions the answer of which should be given by the defence in order to rebut the prosecution under Section 113B of the Indian Penal Code. In absence of clear rebuttal, death of a woman at such age obviously gives rise to a probability that it is only the husband and the other relations who have committed the offence. It is correct that sometimes the statement made by the deceased to her parents may be inadmissible under Section 32(1) of the Evidence act. But if the case shows that the torture relates to death of the victim, that may be admissible because such evidence is intertwined elegantly with 18 other transaction inseparably to complete the chain of incident culminating in the death of the victim lady.
However, there is another aspect. In case of conflict between the findings of two co-ordinate Benches of the Hon'ble Apex Court what is to be done. In this regard my humble opinion is that I may have recourse to the decision of Kamleshkumar Ishwardas Patel -vs- Union of India and others as reported in All India Criminal Law Reporter page 117. The relevant portion of principles laid down therein read as under :
"Constitution of India, Article, 141 - Precedent - Contrary decisions of the Supreme Court emanating from Benches of co-equal strength - Not necessary for the High Court to follow the decision later in point of time - Decision which in the view of the High Court is better in point of law to be followed - Procedure to be followed explained."
Here in this case considering the materials on record the evidence of the independent witness the consciousness of the court is towards the acceptance of the views as propounded in (2010) 9 SCC 64 (supra). Accordingly, I am of the view that the laws laid down therein may be put into application in this case.
In the case at hand, the abrupt cremation of the dead body of the victim without holding any p.m. report and without taking the relations of the deceased at the time of cremation, give rise to the question of application of Section 201 of IPC. The evidence shows that the prosecution shows the marks of injury on the dead body and blood oozing from nose and ear of the victim. 19
In order to cover up this piece of evidence, the husband cremated the dead body. But in this regard, the role played by the mother-in-law and other accused persons has not been clearly established. All the prosecution witnesses did not say in unequivocal term that other accused persons viz. mother-in-law or Bhairav Ghosh, Harinaryan Mondal, Manik Mondal, Anil Pan & others took active part in disappearance of the dead body of the victim. They are not related to the accused persons. So, they are not expected to take extra curiosity to quicken the cremation of the dead body of the victim. It may be that they were helping hands of the husband/appellant.
The findings of the learned court below, therefore, cannot be fully supported. Except the husband of the deceased rest accused persons are liable to be acquitted for offence under Section 201 of the IPC. The husband of the deceased of course appear to have successfully succeeded in disappearing proof of evidence under Section 201 IPC in order to screen himself from legal punishment.
Needless to mention that the father-in-law of the victim has expired.
Therefore, the order of conviction and sentence passed by the learned trial court against Shyamal Adhikary and Gita Adhikary are affirmed and their Appeal being No. 529 of 2011 stands dismissed.
The appellants Shaymal Adhikary and Gita Adhikary are reported to be on bail. They are directed to surrender before the learned court below before 1st August, 2013 to serve out the 20 sentence accordingly failing which the trial court shall be at liberty to secure their presence by adopting coercive measures.
Since sufficient evidence in regard to Section 201 IPC is not available against other appellants of CRA No. 495 of 2011, they are acquitted and be discharged from bail bonds, if not wanted in any other case.
The CRAN No. 443 of 2013 also stands disposed of accordingly.
Let a copy of the judgment alongwith the lower court record be sent down immediately to the learned court below for necessary action.
Urgent certified copy of this judgment and order, if applied for, be given to the parties on priority basis.
(Toufique Uddin, J.)