Calcutta High Court (Appellete Side)
Bilati Mandal vs Unknown on 3 September, 2013
Author: Toufique Uddin
Bench: Toufique Uddin
1
03/09/2013
CRA No. 343 of 2009
with
CRAN No. 3 of 2013
In the matter of : Bilati Mandal
... Appellant
Mr. Jayanta Narayan Chatterjee
... For the appellant
Mr. Manjit Singh
Mr. Anand Keshari
... For the State
This appeal arose out of judgment and order dated
18.3.2009 and 19.3.2009 passed by the learned Additional Sessions
Judge, 5th Fast Track Court, Malda in Sessions trial case No.
5(1)2006 out of Sessions case No. 171/04 thereby convicting the
appellant for commission of offence under Sections 498A/304B/34
IPC and sentencing him accordingly.
In the background of this appeal the fact in a nutshell is
that on 18.8.2002 one Laxmikanta Sarkar of village Sanchia under
Chanchal lodged a written complaint to the O.C., Chanchal P.S.
with the allegation that his daughter Kanika who got married with
Swapan Mandal, s/o. Nibaran Mandal of village Sanchia had been
facing physical and mental torture since her marriage by her
husband and parents-in-law who used to create pressure upon her
for bringing money from her father's house and inspite of such
torture she had been living in her matrimonial home. In the
2
morning of 17.8.02 she had been again subjected to torture for
which at about 7 a.m. she committed suicide by consuming poison.
She was removed to Malda Sadar Hospital where she died at about
1.30 p.m. On receipt of the complaint, Chanchal P. S. Case No. 80/02 under Sections 498A/306 IPC was started and after investigation, Police submitted charge-sheet against the accused persons.
The case was committed by the learned Magistrate to the Court of Sessions.
The learned court below on hearing of both sides framed charges under Sections 498A/304B/34 IPC against the accused person.
The contents of the charges were read over and explained to them when they pleaded not guilty and claimed to be tried.
To contest the case the prosecution examined as many as 19 witnesses while none was examined on the side of the defence.
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 and 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.
The learned trial court convicted the accused persons by the impugned judgment.
Now, the question is whether the impugned judgment suffers for any infirmities and calls for any interference or not. 3
The mother-in-law and the husband were convicted for commission of offence. But here the mother-in-law alone is the appellant.
Sections 498A/304B/34 IPC read as under:
Section 34. Acts done by several persons in furtherance of common intention - When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
Section 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,
(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. 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 4 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 appellant mainly argued inter alia that the father-in-law was acquitted. The husband did not prefer any appeal. The present appellant is the mother-in-law and she is in custody for about 4½ yrs. and practically there is no allegation proved against her.
On the other hand, learned Counsel for the State argued that the sentence is sustainable.
To appreciate the case from a better angle some relevant pieces of evidence are required to be considered.
Ext. 1 is the complaint lodged by one Laxmi Sarkar. Ext. 12 is the inquest report.
PW 1 knows the parties. He stated that he heard that Kanika died by taking poison on 17.8.02 in the house of the accused persons and before one year she was married to Swapan Mondal. He wrote the written complaint as per instruction of Laxmi Sarkar. He stated that he heard from the mother of Kanika that Swapan Mondal and Bilati Mondal used to torture her for demand of money since her marriage. It is further clear from his evidence that before Kanika's marriage she had love affairs with Swapan Mondal and out of such love affair Kanika became pregnant. A Salish was held in the village. Nibaran Mondal, father of Swapan Mondal attended the Salish but Swapan did not. It was settled that Swapan will marry Kanika but Nibaran did not agree. Later, Santana Sarkar, mother of Kanika filed a case in the Court of learned C.J.M., Malda against the 5 accused persons. After 15/20 days, Nibaran called the villagers and said that he is ready to give marriage of Swapan with Kanika and thereafter they got married. His evidence shows that the marriage took place in the temple of Lord Shiva of the village. The Salishnama was written by him which is Ext. 2 in this case.
PW 2 is the father of the victim. He stated that the marriage between his daughter and Swapan was registered in Chanchal Registration Office, Malda. He further stated that the accused persons used to torture his daughter for non-payment of money as per their demand and used to assault her and did not give food sufficiently and did not allow her coming to his house and talk to them. From his evidence it transpires that the house of the accused persons is intervened by the house of his uncle. Secretly, his daughter used to come to his house and disclose the factum of torture. Before 2/3 days of her death, she came there and stated that she was being tortured over the demand of dowry and asked to bring money from him.
PW 3 stated that the deceased is her niece. She supported the case of the complainant. The evidence of this witness shows that the accused persons did not make any arrangement for sending Kanika to hospital after she consumed poison. Later, under the pressure of villagers, Nibaran took her to Samsi hospital by van.
PW 4 is the mother of the victim. She corroborated the prosecution case. She stated that before marriage Kanika had love affairs with Swapan and got pregnant and thereafter under the pressure of local people he married her daughter but the other 6 members of her in-law's family tortured her on the ground of non- bringing the dowry from them. She further stated that on arrival of the house of the accused persons, she saw them to gossip in the verandah and her daughter was shouting in the roof that she took poison because she was assaulted by them for demand of dowry money. Due to the pressure created by the villagers, Swapan was compelled to marry his daughter.
PW 5 was tendered by the prosecution.
PW 6 is a villager who was present in the Salish. She is also a signatory to the salishnama wherein Swapan also signed.
PW 7 is another signatory to the salishnama. He gave proposal to Nibaran for giving marriage of Swapan with Kanika. Nibaran did not agree but subsequently the marriage took place in the temple of Lord Shiva in the village.
PW 8 is a doctor who held the postmortem examination on the dead body and opined that the death was due to consumption of poison.
PW 9 is a homeguard who carried the dead body to the hospital.
PW 10 and PW 11 were tendered by the prosecution case. PW 12 is a relation of the deceased who attempted to corroborate the evidence of PWs 2 and 3. He stated that the accused persons used to create trouble with her (the victim) for money. On the date of incident, she heard shouting of Kanika and rushed there. She stated that the accused persons asked Kanika to bring money from her father and thereafter the accused persons 7 started torturing her. She used to hear their shouting from her house. So, Kanika committed suicide by taking poison as she failed to tolerate the torture of the accused persons.
PW 13 is a villager. He spoke about the payment of accused persons of Rs. 50,000/- on demand of dowry. He alongwith others tried to settle the dispute but failed. He heard from the father of Kanika that they demanded Rs. 50,000/- from them. He is an independent witness.
PW 14 was tendered by the prosecution case.
PW 15 is a formal witness.
PW 16 is another relation of the deceased. He stated about torture over demand of money. He stated that Kanika died due to torture on the demand of money.
PW 17 was declared hostile.
PW 18 is a Sub-inspector who held investigation and prepared the formal FIR. The case was endorsed to him for investigation. He visited the P.O., prepared and submitted the charge-sheet.
PW 19 is a W.B.C.S. Officer. He held the inquest of the dead body of the victim.
Unnatural death at in-laws place obviously causes eyebrows. A victim woman may commit suicide by hanging or burning or consuming poison 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 8 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 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. 9 However, it is open to the accused to adduce such evidence for disproving such compulsory presumption as the burden is 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.
In the present case following factual circumstances stand established:
a) the deceased was married to accused no. 1
b) the deceased died at the place of her husband within a
span of seven years.
c) she died an unnatural death.
Therefore, a presumption automatically may arise under section 113B of the Indian Evidence Act. If it is established by the evidence of the prosecution witnesses that the chain is complete suggesting only to the fact that the accused persons perpetrated torture soon before her death over demand of dowry and as such the victim died an unnatural death.10
The accused persons were examined thoroughly under Section 313 of the Code of Criminal Procedure.
Now the question is whether the oral evidence on the prosecution witness can be relied on. In this regard, there is no direct eyewitness. So, apparently whether reliability on prosecution witness can be made or not is to be considered.
I like to put on record that there are divergent opinions propounded by different courts over Section 304B IPC 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 Amar Singh vs. State of Rajasthan reported in (2010) 9 SCC 64 the Hon'ble Supreme Court held as follows : 11
"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 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 - 12 Confession- Extra-judicial confession/Hearsay- 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 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. 13
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).
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 14 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."
A question may arise that whether simply basing on the statement of the relation-witness as well as some villagers 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 15 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 presumption 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 other transaction inseparably to complete the chain of incident culminating in the death of the victim lady.
Careful scrutiny of the materials on record shows that the deceased was not happy at her matrimonial home. Also there is no evidence that she was suffering from any decease or had any other mental injury to put an end of her life. She died within a span of two years at her in-law's place. What was her mental injury has not been disclosed by the defence side in order to rebut the presumption under Section 113B of the Evidence Act. This is within the special knowledge of the accused persons.
The family of the victim lady and her in-law's place are almost side by side. Even, the sound of one place is audible in other place and also what is happening in one house may be noticed from the other house. There is no denial of this fact. Soon before her death, she very secretly came to her father's place and disclosed that tortured was being perpetrated on her on the demand of cash of Rs. 16 50000/- and thereafter she said committed suicide by taking poison. This is an aspect covered as soon before death i.e. probative link between cause of death and the victim of death.
The accused persons did not attempt to save her. They were seen in the ground floor whereas the other persons including the members of her father's family brought her down from the roof. Initially the accused persons were reluctant to take her to hospital. Even they did not go to the burning ghat. All these pieces of evidence remained unchallenged and those go to point the behavioural pattern and attitude of the accused persons.
It is also established from the record that before marriage the victim became pregnant by the accused Swapan and under painful compulsion he had to marry her. Also it transpires from the record that pregnancy was terminated at the behest of the accused persons against the desire of the victim.
The statement of the victim is protected by Section 32(1) of the Evidence Act made to the parents and relations of the victim as it is closely connected with death vs. demand of dowry.
The record shows that much ado was created that what was not stated in 161 statement was stated in dock. by some of the witnesses. In this regard, I would like to mention a very pertinent aspect. The I.O. has done a lot of damage in this case. His nature of work requires to be scrutinized by higher authorities. Some witnesses made 161 statement over vital aspects of the matter regarding torture, non-fulfillment of demand of dowry money but the I.O. surprisingly stated in evidence that "I did not make any enquiry 17 as to for which purpose the accused persons used to demand money from defacto complainant as per allegation in the FIR. As I do not find any ingredient under Section 304B IPC, in course of investigation, I submitted charge-sheet under Section 306 IPC. In course of investigation, I did not find that there was any evidence regarding demand of dowry". This piece of evidence of the I.O. is totally unacceptable on the face of the glaring mention by some witnesses while examining during investigation under Section 161 of the Code of Criminal Procedure as the comparison shows.
Admittedly, the father-in-law of the deceased is an employee of BSNL. Though some witnesses made a mention of all accused persons over the involvement of the offence, yet, the careful examination of the evidence shows that allegations were directed primarily against the accused husband and his mother, the present appellant.
The learned Court below dealt with all aspects of the matter more or less satisfactorily with reference to position of law. The judgment and order passed, appears to be sustainable.
Accordingly, I find no merit in the appeal.
Hence, the appeal stands dismissed.
Let a copy of the judgment and the LCR be sent down to the learned court below immediately for necessary action.
Urgent Photostat certified copies, if applied for, be supplied according to rules.
(Toufique Uddin, J.)