Tripura High Court
Convict vs The State Of Tripura on 23 May, 2019
Author: Sanjay Karol
Bench: Sanjay Karol
Page 1 of 31
HIGH COURT OF TRIPURA
_A_G_A_R_T_A_L_A_
Criminal Appeal(Jail) No.43/2018
Sri Subrata Majumder,
S/o Shri Hiralal Majumder,
of Vill : Ishan Chandranagar,
PS : Belonia, District : South Tripura.
---- Convict-Appellant(s).
Versus
The State of Tripura.
---- Respondent(s).
_B_E_F_O_R_E_
HON'BLE THE CHIEF JUSTICE MR. SANJAY KAROL
For the appellant(s) : Mr. Ratan Datta, Advocate,
Ms. Simita Chakraborty, Advocate,
For the respondent(s) : Mr. Babul Choudhury, Public Prosecutor.
Date of hearing : 12th April, 2019.
Date of judgment : 24th April, 2019.
Whether fit for reporting :
Yes No
√
JUDGMENT
On 2nd August, 2009 Smt. Nandita Majumder (Paul), aged 27 years, died as a result of multiple organ failure arising out of burn injuries (98%). In relation to the said crime, FIR No.147/2019 was registered at Police Station - Belonia, South Tripura and the accused namely, (1) Sri Subrata Majumder and (2) Smt. Basanti Majumder, were charged for having committed an offence punishable under Sections 498-A and 304-B of Indian Penal Code (for short, 'IPC').
Page 2 of 31[2] The trial Court, while fully acquitting accused Basanti Majumder, found the prosecution to have established its case, proving the guilt of accused Subrata Majumder, in relation to said charged offence and sentenced him to undergo rigorous imprisonment for a period of 7(seven) years for the offence punishable under Section 304-B IPC and rigorous imprisonment for a period of 1(one) year with fine of ₹2,000/-(rupees two thousand) and in default thereof to undergo simple imprisonment for 2(two) months for the offence punishable under Section 498-A IPC.
[3] The State has not preferred any appeal assailing the judgment of acquittal of Smt. Basanti Majumder or the sentence awarded by the trial Court in the case of accused Subrata Majumder. The judgment of conviction and sentence, dated 14th August, 2018, is subject matter of challenge by convict Subrata Majumder in this appeal.
[4] Certain facts are not in dispute:
(a) Marriage between the deceased and the accused was solemnized on 18th January, 2009;
(b) on 3rd July, 2009, she returned to her parental house wherefrom accused Subrata brought her back to the matrimonial house on 17th July, 2009; and
(c) on 2nd August, 2009, deceased was found dead in her bed room. The matter was immediately brought to the notice of the police, with the consequential registration of FIR.
Page 3 of 31[5] It is also not in dispute that prior to the marriage, parties were not known to each other. It is not a case of love marriage. Also death took place within 7 years of marriage, in the matrimonial house, where parties were residing together as husband and wife, till the deceased breathed her last. Also cause of death being burn injuries resulting into cardio-respiratory failure.
[6] With these admitted facts, Mr. Ratan Datta learned counsel for the appellant, lays challenge to the impugned judgment dated 14th August, 2018 of learned Sessions Judge, South Tripura, Belonia, in Case No.S.T.11(ST/B) of 2011 titled as The State of Tripura v. Subrata Majumder and Anr., by making the following assertions :
(i) The demand does not relate to marriage and as such, cannot be said to be a dowry demand within the meaning of Section 2 of the Dowry Prohibition Act, 1961. In support, he refers to and relies upon Appasaheb & Anr. v. State of Maharashtra,(AIR) 2007 SC 763 (2 Judge Bench) & Vipin Jaiswal(A-1) v. State of A.P., 2013(CRI.L.J) 2095 (2 Judge Bench).
(ii) In view of Section 32(1) of the Evidence Act previous statement of the deceased to her relatives cannot be referred to and relied upon by the Page 4 of 31 prosecution for establishing the charge under Sections 498A and 304B. In support, he refers to and relies upon State of U.P. and Anr. v. Barati, (2002) CRI.L.J 926 (2 Judge Bench).
(iii) The accused had no duty to disclose his defence or explain to the prosecution the circumstances under which death took place. In support, he refers to and relies upon Ashok Kumar v.
State of Haryana, AIR 2010 SC 2839 (2 Judge Bench).
(iv) In the absence of prosecution having established its case against the accused, beyond reasonable doubt, no statutory presumption under Section 113-A & 113-B of the Evidence Act can be drawn. In support, he refers to and relies upon Rajbabu and Anr. v. State of Madhya Pradesh,(2008) 17 SCC 526 (2 Judge Bench) & Hans Raj v. State of Haryana, (2004) 12 SCC 257 (2 Judge Bench).
(v) Last of the conversation between the deceased and the complainant took place on 24th July, 2009 whereas death took place on 2nd August, 2009. The time gap of 10 days is huge, and it cannot be said that the alleged dowry demand was made ―soon Page 5 of 31 before‖ her death. In support, reference is made to decisions of the Apex Court in Major Singh and Anr. v. State of Punjab, (2015) 5 SCC 201 (3 Judge Bench); Ashok Kumar (supra) and Baijnath and Ors v. State of Madhya Pradesh, (2017) 1 SCC 101 (2 Judge Bench).
[7] Rebutting the same, Mr. Babul Choudhury, learned Public Prosecutor, has taken the Court through the testimonies of the witnesses, more specifically that of the neighbours who can be termed as uninterested witnesses, supporting the findings returned by the Court below.
[8] Perusal of testimony of Sri Timir Das (PW.26), Investigating Officer (for short, 'I.O.'), reveals that FIR (Exbt-11) on 2nd August, 2009 at 07.25 hrs was registered on the basis of complaint lodged by one Anjana Rani Pal(Saha). [9] Postmortem of the dead body was conducted by Dr. Jagadish Nama, (PW.3) on 2nd August, 2009 who proved such report (Exbt.2). Detailed description of injury of the deceased reads as under :
―Extensive charring of the body was present with complete destruction of cuticle, singeing of hair and deposition of black soot on the face and all over the body spearing the genital region and two soles. Strong odour of kerosene was present. All clothings of the deceased were burnt. A piece of Page 6 of 31 burnt sharee was found on her body, covering some part.
On dissecting the body the skin was found to be tough, hard and leathery and colour of the blood was cherry read that oozes from cut ends, presence of soot mixed with froth in the respiratory passage and oesophagus proves that the person was alive at the time of burning, visceral samples of brain, lung, liver, kidney, spleen, uterous, stomach, intestine, heart, skin taken and sent for forensic lab test for histological and biochemical examinations.‖ The cause of death being cardio-respiratory failure on account of 98% burn injuries.
[10] It is true that no final opinion based on the forensic laboratory test, ascertaining the actual cause of death, was taken on record by the I.O. But then, such fact, would not matter in view of 98% burn injuries found on the body of the deceased.
Error on the part of the I.O is not fatal for it is nobody's case that deceased had consumed poison. In fact, it is the suggested case of the accused that the deceased, unhappy with the marriage, committed suicide. As such, foul play other than death by burn injuries, is ruled out and is also not argued before this Court.
[11] In Kundula Bala Subrahmanyam and Anr. v.
State of Andhra Pradesh, (1993) 2 SCC 684 (2 Judge Bench) while dealing with cases relating to women, the Apex Court observed that:Page 7 of 31
―The role of courts, under the circumstances assumes greater importance and it is expected that the courts would deal with such cases in a more realistic manner and not allow the criminals to escape on account of procedural technicalities or insignificant lacune in the evidence as otherwise the criminals would receive encouragement and the victims of crime would be totally discouraged by the crime going unpunished. The courts are expected to be sensitive in cases involving crime against women.‖ [12] In all, prosecution has examined, as many as, 28 witnesses. Statement of the accused was recorded under Section 313 of the Code of Criminal Procedure (for short 'Cr.P.C') in which he simply pleaded innocence. Also he chose not to lead any evidence.
[13] Factum of marriage which took place on 18th January, 2009 stands proven on record by the complainant Smt. Anjana Rani Pal(Saha)(PW.18) being sister of the deceased; Sri Sunil Pal (PW.22), father of the deceased; Sri Nepal Chandra Saha (PW.19); brother-in-law of the deceased i.e. husband of PW.18, Sri Sanjoy Pal(PW.5), brother of the deceased and Sri Pramode Pal(PW.14), uncle of the deceased. Since such fact and its date is not in dispute, this Court need not labour on the events which transpired prior thereto, for suffice it to state that it is the suggested case of the accused that marriage took place with the match being fixed by one Sri Pradip Sarkar(PW.13). Page 8 of 31 [14] PW.13 is the person who mediated in the solemnization of the marriage. He could not depose about the cause of death of the deceased. Nor could he state as to whether she had consented for the marriage or not. Significance of such statement being the suggested case set up by the accused, of the deceased having taken away her life being unhappy with the solemnization of her marriage in a family at Ishan Chandra Nagar. Accused heavily relies upon such statement. But then how does it help him, for it is not in the affirmative. Also none else has deposed about such fact. Also it has not come on record that otherwise the deceased was having relationship with someone else or was not happy with the accused being her bride-groom. [15] The relevance of this fact gains significance and importance, as one would notice the prosecution to have prima facie discharged its onus, so required in law, raising the statutory presumption under Section 113-A & 113-B of the Evidence Act. [16] In crux, it is the suggested case of the accused that deceased was unhappy having been married at Ishan Chandra Nagar, thus prompting her to take away her life whereas prosecution alleges it to be a dowry death. [17] As per the prosecution, at the time of solemnization of marriage, dowry, more specifically ₹50,000/- in cash was given to the accused. All appeared to be going as well for about 2 months, when the husband started subjecting the wife to mental and Page 9 of 31 physical cruelty. She was physically assaulted; not given food; and a demand of ₹25,000/- for buying an auto rickshaw was made, which on account of poverty could not be met. Moreover, atrocities inflicted by the accused forced the deceased to leave her matrimonial house and take refuge in the house of her father. After 15 days, accused Subrata Majumder came and took her back with an assurance that he would not torture her. However, on 2 nd August, 2009, parents learnt about the death of the deceased. [18] Out of 28 prosecution witnesses, one finds there are three set of witnesses which are important; (a) close relatives, (b) neighbours and (C) third parties who can be termed as uninterested witnesses.
[19] The first set of witnesses namely, Sri Sanjoy Pal(PW.5), Sri Pramode Pal(PW.14), Smt. Anjana Rani Pal(Saha)(PW.18), Sri Nepal Chandra Saha (PW.19) and Sri Sunil Pal (PW.22) have supported the prosecution. [20] The second set of witnesses can be further divided into two parts; (a) those who have supported the prosecution namely, Smt. Swapna Pal(PW.10), Smti Kaplana Paul (PW.20) and Smt. Kananbala Sarkar (PW.25) and (b) those who have not supported the prosecution and were declared hostile namely, Sri kanu Shil (PW.1), Sri Sanjoy Pal (PW.5), Sri Himangshu Page 10 of 31 Pal(PW.6), Smt. Swapna Sarkar (PW.7) and Sri Ganesh Sarkar (PW.17).
[21] There is no eye witness to the crime. Prosecution case rests on circumstantial evidence and principle of res gestae. [22] A Constitution Bench (5 Judge) of the Apex Court in Raghav Prapanna Tripathi v. The State of Uttar Pradesh, AIR 1963 Supreme Court 74 has fully explained the concept of circumstantial evidence in determining the innocence or guilt of the accused, which undoubtedly has to be deduced from the material on record.
And, what is required to be kept in mind by the Court, while appreciating such evidence, stands reiterated by the Apex Court in Bhim Singh and Anr. v. State of Uttarakhand, (2015) 4 SCC 281(2 Judge Bench), that when conviction is solely based on circumstantial evidence there should not be any snap in the chain of circumstances, for benefit thereof, would enure to the accused on the principle of benefit of doubt. Moreover if some of the circumstances in the chain can be explained by any other reasonable hypothesis, then the accused is not entitled to such benefit of doubt. But in assessing such evidence, imaginary possibilities have no place for what is to be considered is only ordinary human probabilities.
Page 11 of 31[23] Earlier Apex Court in Padala Veera Reddy v. State of Andhra Pradesh and others, 1989 Supp (2) SCC 706 (3 Judge Bench) culled out the following tests guiding the Courts in a case of circumstantial evidence; (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with such guilt but should be inconsistent with his innocence.
[24] Now, the Court proceeds to examine the independent witnesses who have not supported the prosecution. PW.1 denies having made any statement (Exbt.1) to the police which stands proven by the I.O (PW.26) who has categorically deposed that the said witness had disclosed that the accused and the deceased were not having good relations for the reason that accused was not a good person and was having past criminal record i.e. involvement in a case of rape and theft. Also accused wanted to buy a second hand auto rickshaw and was subjecting his wife to physical cruelty.
Page 12 of 31[25] PW.6 also denies having made statement of dowry demand of the deceased, or informed of her of being subjected to physical and mental torture or cruelty and demand of ₹25,000/- Similar is the situation with regard to PW.7. [26] When we come to the testimony of PW.17, we notice that hearing cries of sister-in-law (not examined) of accused Subrata, he was the first one to have reached the spot and opened the door and saw burn injuries on the body of the deceased, which according to this witness were self-inflicted. At that time, deceased was not in a position to make statement. He called brother-in-law of accused Subrata and informed him of the incident. But significantly, he could not categorically state why the deceased committed suicide. He denies having made statement (Exbt.10) to the police, which though stands proven on record by the I.O and as one notices, is also more or less as the lines of deposition of PW.1, PW.5 and PW.6.
[27] These witnesses, at best, do not prove the prosecution case but then definitely it does not belie the same or probablizes the defence taken by the accused.
[28] On the other hand, when we examine the statement of PW.10, we find the witness to have categorically deposed that in the month of June, 2009 deceased along with her sister had visited her house and narrated the events of torturing and dowry demand of ₹25,000/-. Also she was made to starve. According to Page 13 of 31 this witness, demand started after about one month of marriage. This witness has no reason to falsely depose against the accused and she denies having any relation with the complainant party. [29] Similarly, one finds PW.20 was known to the deceased. Both worked together and the latter was the leader of a self-help group. She is categorical that 3 months after the marriage, deceased visited her house requesting for money as her husband had made a demand of ₹25,000/-. He pressurized her to get the money from her father. Also in relation to which she was tortured. [30] PW.25, met the deceased at Ishan Chandra Nagar, when she was also informed about the dowry demands for purchasing an auto rickshaw.
[31] This Court finds statements of these witnesses, who are uninterested, to be absolutely inspiring in confidence. [32] Coming to the testimonies of the relatives, one finds, the father (PW.22) to have categorically proven the prosecution case. Undoubtedly, his deposition is clear, categorical, convincing and reliable. He is clear about the dowry articles given at the time of marriage, including ₹40,000/- as cash. He states that up to two months of marriage, everything was alright but thereafter, accused-Subrata started mentally and physically torturing the deceased. A demand of ₹25,000/- was made. Three/four times, the demand came and informed of various incidents of torture and Page 14 of 31 dowry demand. However, such demand could not be met on account of financial constraints. With the atrocities increasing, deceased left her matrimonial house and came to stay with him. But after about 15 days, accused came and took her back with the promise that in future no such acts would be repeated. But soon his daughter died. Also local Pradhan and the Member of the Panchayet were informed of the various acts of cruelties. [33] PW.18 is the sister of the deceased. Her statement is more or less on similar lines. However, she adds that at times accused ―kept the deceased under starvation‖. On three occasions her sister came and informed her of the cruelties and atrocities. Significantly, on all other aspects, she corroborates version of her father.
[34] PW.5 is the brother of the deceased who lives in Bombay. He also supports his father on the material aspect of dowry demand of ₹25,000/- for purchase of an auto rickshaw. Other witnesses i.e. PWs.14 and 19 have corroborated the version of other family members.
[35] Perusal of testimonies of these witnesses reveals there are two contradictions; (a) on the point of matter having brought to the notice of Members of the Panchayet and (b) the number of times the deceased visited the house of her sister. But, then these contradictions are not material or significant so as to render the core of their depositions to be shaky, unbelievable or Page 15 of 31 doubtful in any manner. On the material aspect of cruelty, mental and physical as also dowry demand they are clear and consistent, fully uninspiring in confidence. The acts of cruelty with regard to time, place and manner are absolutely clear. It is in this backdrop, Court finds the accused not to have disclosed what he ought to have, and that being as to what prompted her to take away life. Save and except for bald suggestion to the witnesses of the accused, not being happy having married at Ishanchandra Nagar, there is no iota of evidence establishing such fact. To probablize the defence no evidence was led by the accused indicating unhappy mental state of mind of the deceased. [36] In State of West Bengal v. Orilal Jaiswal, (1994) 1 SCC 73 (2 Judge Bench), the Apex Court clarified that in a criminal trial, degree of proof is stricter than what is required in civil proceedings. Howsoever, intriguing facts and circumstances of the case may be, charges made against the accused must be proved beyond all reasonable doubt. Such requirement of proof cannot lie in the realm of surmises and conjectures. Also S.498A, I.P.C and S.113A of Indian Evidence Act does not disperse with such requirement of proof. All depends upon the facts and circumstances of each case and the quality of the evidence adduced and the material placed on record. In the very same, the Court observed that ―the doubt must be of a reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular Page 16 of 31 subject matter. The conscience of the court can never be bound by any rule but that is coming itself dictates the consciousness and prudent exercise of the judgment. Reasonable doubt is simply that degree of doubt which would permit a reasonable and just man to come to a conclusion. Reasonableness of the doubt must be commensurate with the nature of the offence to be investigated.‖ Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law.‖ (emphasis supplied).
[37] It is a settled principle of law that accused is duty bound to explain the incriminating circumstance proved against him while making statement under Section 313 Cr.P.C. The Apex Court in Aftab Ahmad Ansari v. State of Uttaranchal, (2010) 2 SCC 583 (2 Judge Bench) and in Neel Kumar v. State of Haryana, (2012) 5 SCC 766 (2 Judge Bench) has held that either maintaining silence or not furnishing sufficient explanation for such a circumstance is an additional link in the chain of circumstances to sustain the charges against the accused. Page 17 of 31 [38] The principle stand reiterated in Munna Kumar Upadhya v. State of Andhra Pradesh, (2012) 6 SCC 174 (2 Judge Bench) in the following terms:
―None of the accused, particularly accused No.2, offered any explanation during the recording of their statements under Section 313 CrPC. It is not even disputed before us that the material incriminating evidence was put to accused No. 2 while his statement under Section 313 CrPC was recorded. Except for a vague denial, he stated nothing more. In fact, even in response to a question relating to the injuries that he had suffered, he opted to make a denial, which fact had duly been established by the statements of the investigating officers, doctors and even the witnesses who had seen him immediately after the crime.
The statement of Section 313 Cr.P.C is to serve a dual purpose, firstly, to afford to the accused an opportunity to explain his conduct and secondly to use denials of established facts as incriminating evidence against him.
It was expected of the accused to render proper explanation for his injuries and his conduct. However, he opted to deny the same and in fact even gave false replies to the questions posed to him.
If the accused gave incorrect or false answers during the course of his statement under Section 313CrPC, the Court can draw an adverse inference against him. The accused in the present case has not only failed to explain his conduct, in the manner in which every person of normal prudence would be expected to explain but had even given incorrect and false answers. In the present case, the Court not only draws an adverse inference, but such conduct of Page 18 of 31 the accused would also tilt the case in favour of the prosecution.‖[Also : Jitender Kumar(supra); Neel Kumar alias Anil Kumar (supra); Phula Singh v. State of Himachal Pradesh, (2014) 4 SCC 9 (2 Judge Bench); The State of Tripura v. Sanvlo Naik and Ors.,(2017) 16 SCC 54 (2 Judge Bench)].
[39] Further the Apex Court in Phula Singh(supra), has observed that ―11. .................. if the accused has been given the freedom to remain silent during the investigation as well as before the court, then the accused may choose to maintain silence or even remain in complete denial when his statement under Section 313 Cr.P.C. is being recorded. However, in such an event, the court would be entitled to draw an inference, including such adverse inference against the accused as may be permissible in accordance with law.‖ [40] In fact, in view of the dictum laid down in the said decisions, this Court find provisions of 106 of the Evidence Act to be squarely applicable in the instant case for the accused was under an obligation, in law, to explain as to how (a) his wife died and that (b) how he sustained burn injuries on his hand. [41] Under identical circumstances where death has took place in the house of accused, the Apex Court in Chandra Bhawan Singh v. State of Uttar Pradesh, (2018) 6 SCC 670 (2 Judge Bench) while holding the accused not to have sufficiently Page 19 of 31 explained the circumstances under which the incident occurred, observed that:
―32. We also find that both the accused (appellants herein) in their statements recorded under Section 313 of the Criminal Procedure Code, 1973 failed to give any explanation when asked about the circumstances in which the incident occurred in their house. When the incident admittedly occurred in their house, the appellants were required to explain the circumstances in which Satyawati died. They, however, failed to give any explanation.‖ [42] The prosecution having discharged its initial burden of establishing the ingredients, raising statutory presumption of complicity of the accused in the crime, burden of proving innocence or rebutting such presumption was on the accused.
[See : Pathan Hussain Basha v. State of A.P., (2012) 8 SCC 594 (2 Judge Bench)].
[43] What is the meaning of the expression ―beyond reasonable doubt‖ stands explained in Yogesh Singh v. Mahabeer Singh & Ors., (2017) 11 SCC 195 (2 Judge Bench). [44] It is in this backdrop, this Court does not find favour with the submission made by Mr. Datta, learned counsel for the appellant that the accused had no duty to disclose his defence or explain to the prosecution the circumstances under which death took place. Reliance on Ashok Kumar (supra), to say the least, is misplaced in law. It only deals with the right of the accused to Page 20 of 31 maintain silence but it does not deal with the corresponding duty to explain the circumstances, rebutting the statutory presumption under Sections 113-A & 113-B of the Evidence Act. Well none can compel him to break his silence but then consequence thereof, as placed in law, he must suffer.
[45] In the instant case, Court finds the prosecution to have established its case beyond reasonable doubt. The evidence is clear, cogent and consistent. It is credible, believable and trustworthy. As such, it would be of no consequence, to contend that such statutory presumption would not arise. Hence reliance on Rajbabu(supra) & Hans Raj(supra) are misplaced in law. [46] To contend that demand of ₹25,000/- was not a dowry demand is also not correct. Section 2 of the Dowry Prohibition Act, 1961 reads as under :
―2. Definition of ‗dowry' -- In this Act, ―dowry‖ means any property or valuable security given or agreed to be given either directly or indirectly --
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parent 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 1 [or any time after the 2 marriage] [in connection with the marriage of the said parties, but does not include] dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.‖ Page 21 of 31 [47] Dowry as defined under the Dowry Prohibition Act, 1961 is unambiguously clear. Comprehensively, it is defined to include properties of all sorts as it takes within its fold any property or valuable security, given or agreed to be given, in connection with the marriage either directly or indirectly [See :
Bachhi Devi v. State of Haryana,(2011) 4 SCC 427].
[48] Demand for purchase of scooter was not by way of a request of loan to the father-in-law. It was not a loan to be repaid after a particular duration. Nor was it in the shape of a help sought from the father-in-law/relation. It was a demand raised through the wife, which could not be met and she had to suffer for it. It is in this context such demand would fall within the meaning of the expression ―in connection with the marriage of the said parties‖. As per the definition [Section 2] such dowry demands can be made even after solemnization of the marriage. [See :
The State of Andhra Pradesh v. Raj Gopal Asawa and Anr.,(2004) 3 SCC 470] The wife was beaten up; made to starve; subjected to various forms of cruelty both mental and physical, purely on account of non-fulfillment of such demand. As such, the contention that the demand is not dowry demand but a mere request for loan is factually untrue and legally untenable.
[49] Hence, reliance on Appasaheb (supra) is totally misconceived which view, in any case, stands overruled by the Page 22 of 31 Apex Court in Rajinder Singh v. State of Punjab, (2015) 6 SCC 477 (3 Judge Bench).
[50] The next question is as to whether previous statement of the deceased so made to the independent witnesses can be relied upon or not, in view of Section 32(1) of the Indian Evidence Act, 1872. This Court finds no difficulty in accepting the same as a material admissible in law.
[51] The relevant portion of Section 32(1) of the Act is extracted as under:
―(1) when it relates to cause of death -- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.‖ [52] Here again one find the language of the statute to be simple and unambiguously clear. Neither the trial court nor this Court finds favour with the submission of the learned counsel for the appellant that it is a case of suicide. There is no evidence establishing such fact. It is a case of dowry death. Now, cause of death or the circumstances of the transaction which resulted into the death has come into question in the instant case. It is in this Page 23 of 31 backdrop, one finds the statement of the deceased made by her to her relatives and friends to be a relevant fact which can be relied upon while convicting the accused. The deceased had been reporting every one of the atrocities which she was subjected to.
Just 15 days prior to her death, she had been brought back from her matrimonial house, by lending promise of not to be subjected to any cruelty. It is under these circumstances, one finds the submission made by the learned counsel to be legally untenable.
[53] The Apex Court in Kans Raj v. State of Punjab and Ors., (2000) 5 SCC 207 (3 Judge Bench) has elaborately discussed the issue relying upon its decision in Pakala Narayana Swami v. Emperor, AIR 1939 PC 47 reiterated as under:
"The circumstances must be circumstances of the transaction: general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible. But statements made by the deceased that he was proceeding to the spot where he was in fact killed, or as to his reasons for so proceeding, or that he was going to meet a particular persons, or that he had been invited by such person to meet him would each of them be circumstances of the transaction, and would be so whether the person was unknown, or was not the person accused. Such a statement might indeed be exculpatory of the person accused. "Circumstances of the transaction" is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in "circumstantial evidence" which includes evidence of all relevant facts. It is on the other hand Page 24 of 31 narrower than 'res gestae'. Circumstances must have some proximate relation to the actual occurrence: though, as for instance, in a case of prolonged poisoning they may be related to dates at a considerable distance from the date of the actual fatal dose. It will be observed that ‗the circumstances' are of the transaction which resulted in the death of the declarant. It is not necessary that there should be a known transaction other than that the death of the declarant has ultimately been caused, for the condition of the admissibility of the evidence is that ‗the cause of (the declarant's) death comes into question'.‖ [54] In fact prior thereto in Sharad Birdhichand Sarda v.
State of Maharashtra, (1984) 4 SCC 116 (3 Judge Bench) the Apex Court has culled out the following propositions with regard to the said provision:
―21. Thus, from a review of the authorities mentioned above and the clear language of Section 32(1) of the Evidence Act, the following propositions emerge:-
(1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it Page 25 of 31 necessary to widen the sphere of Section 32 to avoid injustice.
(2) The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under Section 32.
(3) The second part of cl.1 of Section 32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross- examination is taken by the solemnity and sanctity of oath for the Page 26 of 31 simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring.
(4) It may be important to note that s.32 does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide.
(5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of Section 32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant.‖ [55] To contend that 10 days gap is huge so as not to constitute an ingredient of ―soon before‖ is fallacious. The Apex Court through the opinion of Mr. Rohintorn Fali Nariman, J., in Rajinder Singh v. State of Punjab, (2015) 6 SCC 477 (3 Judge Bench) has elaborately discussed the meaning of dowry under the provisions of the Dowry Prohibition Act, 1961 (hereinafter referred to as the Dowry Act) as also expression ‗soon before' appearing in Section 113-B of the Evidence Act, 1872 and Section 304-B of IPC. With regard to dowry the Court observed that:
Page 27 of 31
―A perusal of this Section shows that this definition can be broken into six distinct parts.
1) Dowry must first consist of any property or valuable security - the word ‗any' is a word of width and would, therefore, include within it property and valuable security of any kind whatsoever.
2) Such property or security can be given or even agreed to be given. The actual giving of such property or security is, therefore, not necessary.
3) Such property or security can be given or agreed to be given either directly or indirectly.
4) Such giving or agreeing to give can again be not only by one party to a marriage to the other but also by the parents of either party or by any other person to either party to the marriage or to any other person. It will be noticed that this clause again widens the reach of the Act insofar as those guilty of committing the offence of giving or receiving dowry is concerned.
5) Such giving or agreeing to give can be at any time. It can be at, before, or at any time after the marriage. Thus, it can be many years after a marriage is solemnized.
6) Such giving or receiving must be in connection with the marriage of the parties.
Obviously, the expression "in connection with" would in the context of the social evil Page 28 of 31 sought to be tackled by the Dowry Prohibition Act mean ‗in relation with' or ‗relating to'.
20. Given that the statute with which we are dealing must be given a fair, pragmatic, and common sense interpretation so as to fulfill the object sought to be achieved by Parliament, we feel that the judgment in Appasaheb's case followed by the judgment of Kulwant Singh do not state the law correctly. We, therefore, declare that any money or property or valuable security demanded by any of the persons mentioned in Section 2 of the Dowry Prohibition Act, at or before or at any time after the marriage which is reasonably connected to the death of a married woman, would necessarily be in connection with or in relation to the marriage unless, the facts of a given case clearly and unequivocally point otherwise.‖ [56] With respect to the expression ‗soon before' the Court in Rajinder Singh (supra), endorsing the view expressed in its earlier decisions rendered in Surinder Singh v. State of Haryana, (2014) 4 SCC 129 (2 Judge Bench) and Kans Raj (supra) observed that ―Days or months are not what is to be seen. What must be borne in mind is that the word "soon" does not mean ‗immediate'. A fair and pragmatic construction keeping in mind the great social evil that has led to the enactment of Section 304B would make it clear that the expression is a relative expression. Time lags may differ from case to case. All that is Page 29 of 31 necessary is that the demand for dowry should not be stale but should be the continuing cause for the death of the married woman under Section 304-B and ‗Soon before' is not synonymous with ‗immediately before'.
[57] It is also the settled principle of law that for invoking the provisions of Section 113-B of the Evidence Act, of statutory presumption, ingredients of Section 304-B IPC must be established that soon before the death of the deceased, the women must have been subjected to cruelty/harassment in connection with any demand of dowry. The Apex Court in Jagjit Singh v. State of Punjab, (2018) 10 SCC 593 (3 Judge Bench) reiterated the principle in the following terms:
―34. We may also notice the statement of law contained in the decision of this Court in the case of Ashok Kumar v. State of Haryana reported in (2010) 12 SCC 350 which reads as under:
"24. Of course, deemed fiction would introduce a rebuttable presumption and the husband and his relatives may, by leading their defence and proving that the ingredients of Section 304-B were not satisfied, rebut the same. While referring to raising of presumption under Section 304-B of the Code, this Court, in Kaliyaperumal v. State of T.N.;(2004) 9 SCC 157: 2004 SCC (Cri) 1417, stated the following ingredients which should be satisfied: (SCC p. 162, para 4) Page 30 of 31 "(1) The question before the court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B IPC).
(2) The woman was subjected to cruelty or
harassment by her husband or his
relatives.
(3) Such cruelty or harassment was for, or in connection with any demand for dowry.
(4) Such cruelty or harassment was soon before her death."
[58] The decision in Barati (supra) does not help the accused for in the instant case demands were made by the accused directly to the complainant. The father is categorical of the accused having taken away the deceased after promising that ―he would not torture her in future‖. Significantly, on this aspect, there is no cross-examination at all.
[59] The decision rendered in Vipin Jaiswal(supra) was in the attending facts and circumstances where the Court not found the prosecution to have established its case and the accused to have probablized his defence by leading credible evidence. The decisions rendered by the Apex Court in Appasaheb(supra) and Vipin Jaiswal(supra) stands overruled in Rajinder Singh (supra).
Page 31 of 31[60] In Baijnath(supra), as already stands noticed simply lays down the principles with regard to ‗dowry death' so also Major Singh(supra).
[61] This Court finds the witness interested or otherwise to have deposed in clear and categorical terms, narrating various acts of cruelty to which the deceased was subjected to through the hands of accused Subrata. It is a case of unnatural death, the evidence led is unshakeable raising the statutory presumption. The testimonies of the witnesses are clear categorical, consistent and the witnesses are totally reliable.
[62] Hence, for all the aforesaid reasons, the appeal assailing the judgment passed by learned Sessions Judge, South Tripura, Belonia, in Case No.S.T.11(ST/B) of 2011 titled as The State of Tripura v. Subrata Majumder and Anr., stands dismissed. Interim order(s), if any, stands vacated. Pending application, if any, also stands disposed of.
Record be sent back immediately.
(SANJAY KAROL), CJ.
Sukhendu.