Calcutta High Court (Appellete Side)
Satyen Barman Alias Satyendranath ... vs The State Of West Bengal on 5 July, 2017
Author: Amitabha Chatterjee
Bench: Amitabha Chatterjee
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present: The Hon'ble Justice Nadira Patherya
And
The Hon'ble Justice Amitabha Chatterjee
CRA No. 628 of 2013
In the matter of
Satyen Barman alias Satyendranath Barman .........Appellant/Petitioner (in jail)
Versus
The State of West Bengal .......................................Respondents
With For the Appellant : Mr. Ajoy Ray : Mr. Ankur Jain For the plaintiffs/ Respondents : Mr. Madhusudan Sur : Mr. Pratik Bose : Mr. Manoranjan Mahato Heard on : 23.11.2016, 24.11.2016, 25.11.2016, 28.11.2016, Judgment on : 05th July, 2017 Amitabha Chatterjee, J. :-
This appeal has been filed against the judgement and order dated 10.6.2013 and 11.6.2013 passed by Sri Tapan Kr. Mondal, Ld. Additional Sessions Judge, F.T.C.-1 Uttar Dinajpur, Raiganj in Sessions Trial No. 15/2008 arising out of Sessions Case No. 73/2007 convicting the appellant under Section 498(A) / 304 B of the Indian Penal Code.
The prosecution case to put in brief is that:-
1. Naresh Barman filed a written complaint before the Officer-in-Charge, Hemtabad Police Station Hemtabad Uttar Dinajpur to the effect that his niece Hema Barman daughter of Anadi Barman of Village Kochimuha was given in marriage with Sri Satyendranath Barman son of Nakul Barman of Hemtabad Police of Village Mahajanbari on 16th Ashar, 1409 B.S. At the time of marriage his brother Anadi Barman, as per the demand of son in law and his family gave one motor cycle, golden and silver ornaments and some other materials as dowry. But his brother did not give Rs. 10,000/- at the time of marriage and promised to give the amount within 5/6 months. After marriage Hema Barman went to her matrimonial house with her husband. After few days of marriage Hema Barman returned to her paternal house and asked her father to pay Rs. 10,000/- immediately as the members of the matrimonial house were torturing her. After one month of marriage the father in law demanded the amount of Rs.
10,000/-. In the month of Shrabon the de facto complainant and his brother Anadi Barman who happens to be the father of victim Hema and many other people tried to convince the in-laws to wait for 5/6 months and they accepted their proposal.
Further case of the prosecution is that on last Thursday, 2nd Ashwin, corresponding to English 19.9.2002 the son-in-law of Anadi Barman along with victim Hema Barman came to their house and said that before Puja the amount of Rs. 10,000/- should be handed over to them and to send her to the matrimonial house otherwise she will live there. The victim Hema said to that she would not go to her matrimonial house without taking the amount. She further stated that her husband, mother-in-law, father-in-law, sister-in-law and brother-in-law tortured upon her for the said money. Thereafter, in the evening of Saturday at about 7 P.M. Hema Barman took poison in their house. The de facto complainant and others admitted her at Raiganj Hospital for treatment but at night she expired. The specific case of the prosecution is that victim Hema Barman committed suicide due to demand of money by the members of her matrimonial home.
The F.I.R. was lodged by Naresh Barman P.W.6 with Hemtabad Police Station regarding the incident on 22.9.2002 alleging torture and harassment meted out to the deceased on account of demand of dowry which led her to commit suicide by consuming some poisonous substance. On the basis of the said complaint Hemtabad Police registered F.I.R. No. 74/2002 dated 22.9.2007 for the offence punishable under Sections 498A / 304B of the Indian Penal Code. After completion of investigation charge sheet under Section 498A and 304B read with Section 4 of Dowry Prohibition Act, was submitted against the accused persons.
Thereafter, the case was committed to the court of Ld. Sessions Judge, Uttar Dinajpur at Raiganj and subsequently the ld. Sessions Judge, Uttar Dinajpur at Raiganj transferred the case vide his order no. 2 dated 19.9.2007 to the court of ld. Additional Sessions Judge, FTC-I, Uttar Dinajpur at Raiganj for trial.
On 19.2.2008 charges were framed against all the six accused persons namely, 1) Satyendra Nath Barman, 2) Dwipen Barman, 3) Amaresh Barman, 4) Smt. Panchabati Barman, 5) Smt. Abala Barman and 6) Nakul Barman for the offence under Sections 498A/304B/34 of the Indian Penal Code, 1860 read with Section 4 of the Dowry Prohibition Act, and the contents of the charges framed were read over and explained to them in Bengali to which they pleaded not guilty by saying that "Amra Nirdosh" and claimed to be tried. The Ld. Additional Sessions Judge F.T.C.-I Uttar Dinajpur, Raiganj on consideration of the oral and documentary evidence so also the Section 313 statement acquitted the accused persons namely, 1) Dwipen Barman, 2) Amaresh Barman 3) Panchabati Barman 4) Smt. Abala Barman and 5) Nakul Barman, relations of the accused husband Satyendra Nath Barman, but convicted the appellant Satyendra Nath Barman for commission of offence under Section 498A and 304B of the Indian Penal Code and sentenced him to suffer Simple Imprisonment for 02 years and also to pay fine of Rs. 1,000/- only I.D. to suffer simple imprisonment for another 02 months for committing the offence under Section 498A of the Indian Penal Code, 1860 and also sentenced him to suffer rigorous imprisonment for 10 years for committing the offence under Section 304B of the Indian Penal Code, 1860. The Ld. Trial Court did not find the appellant guilty for the offence under Section 4 of the Dowry Prohibition Act, and acquitted him of the said offence in view of provision under Section 235(1) of Cr. P.C., 1973.
Being aggrieved the appellant Satyendra Nath Barman filed Criminal Appeal No. 628/2013 before the High Court for setting aside the judgement and order of conviction and sentence dated 10.6.2013 and 11.6.2013 passed by the Ld. Trial Court.
Heard Mr. Ajay Ray, Ld. Senior Counsel for the appellant and Sri Madhusudan Sur Ld. Senior Counsel for the respondent States. The Ld. Advocate for the appellant submitted that the incident took place on 21.9.2002 and F.I.R was lodged by one Naresh Barman the elder brother of the father of the victim on 22.9.2002. The case was instituted initially against the appellant Satyendra Nath Barman along with his relations namely 1) Dwipen Barman, 2) Amaresh Barman 3) Panchabati Barman 4) Smt. Abala Barman and 5) Nakul Barman but except for the appellant all the other accused persons implicated in the instant case were acquitted. It is further submitted by the Ld. Counsel that the incident took place at the parents house of the victim and the prosecution has miserably failed to explain the reason as to why the victim took poison. In fact, the prosecution could not prove the incident, that there was sufficient evidence of cruelty or harassment meted out to the victim by the accused Satyendra Nath Barman to his wife in connection with demand of dowry soon before her death. It is further submitted that in case of allegation under Section 498A of the Indian Penal Code the prosecution must prove that the wife of Satyendra Nath Barman was subjected to cruelty by her husband and his relatives. According to Ld. Counsel there is no such material in the four corners of the evidence on record which amounts to cruelty and harassment. In the instant case out of the twelve witnesses examined P.W.1-Bokul Das, P.W.2- Sumodh Chandra Barman, P.W.3- Raj Kumar Barman did not support the prosecution story. And the Ld. Trial Court based the conviction mainly on the basis of evidence of P.W.4 namely, Trishna Barman, mother of victim Hema, P.W.6 namely Naresh Barman who happens to be the uncle of victim Hema and P.W.8 Anadi Barman who is none but the father of victim Hema. All of them are near relation of victim Hema and the conviction should not be based on the depositions of these three witnesses who could be safely termed as interested witnesses. It is further argued by the Ld. Counsel that though P.W.4 in her deposition before the court stated that Ramjan Ali, Fani Barman, Obin Barman and some other adjoining neighbors were well acquainted with the matter of dispute of her married daughter but none of them has been examined in the instant case. More so, the evidence of P.W.4, P.W.6 and P.W.8 are full of contradictions and as such could not be relied on. P.W.12 Paritosh Singha S.I. of Police is the I.O. of this case and during his cross-examination he specifically admitted that Trishna Barman (P.W.4) in her statement stated to him that "I did not know that son in law what said to my daughter that Hema died. Before death she did not said anything to ourselves". P.W.4 had also stated in her statement to P.W.12 that "my son in law came to our house on 26th Bhadra and said that he will come on the month of Ashwin dated 4/5 and took return Hema". Therefore, the evidence of P.W.4 should be discarded. The Ld. Counsel further argued that although the visera of the deceased was preserved for chemical examination and was sent to F.S.L. Kolkata yet no report of examination of visera is produced in the instant case. And therefore, taking all these facts into consideration the judgment and order of conviction passed by the Ld. Additional Sessions Judge should be set aside and the appellant should be acquitted on the ground of benefit of doubt.
On the other hand the Ld. Counsel for the State contended that the prosecution case is proved beyond the shadow of any reasonable doubt. It has been sufficiently proved that the victim Hema was given in marriage with the accused Satyen Barman alias Satyendranath Barman and at the time of their marriage one motor cycle, gold and silver ornaments and some other materials were given to the appellant. It was also agreed by the father of the deceased namely, Anadi Barman to give him a sum of Rs. 10,000/- within 5/6 months of their marriage. Immediately after the marriage Hema Barman was subjected to cruelty and harassment by Satyen Barman alias Satyendra Nath Barman for demand of Rs. 10,000/- and as the aforesaid amount could not be given to him Satyendra Nath Barman inflicted torture upon her and therefore, Hema was forced to commit suicide in her paternal house by taking poison. The aforesaid suicide took place just after 02 months of marriage and as such the presumption under Section 113B of the Evidence Act is attracted. The case is based on circumstantial evidence and each circumstance linked, therefore, case has been proved and judgement be not set- aside.
Before considering the prosecution case, as well as the defence case, it is desirable to extract the relevant provisions of Section 304B which relates to dowry death.
"304B. Dowry Death- 1) where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with any demand for dowry, such death shall be called "dowry death" and such husband or relative shall be deemed to have caused her death. Explanation.- for the purpose of this sub Section 'dowry' shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961.
2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."
In order to convict an accused for the offence punishable under Section 304B Indian Penal Code, the following essentials must be satisfied I) the death of a 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 or 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 conclusive 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 the prosecution witnesses or by adducing evidence on the defence side.
Section 113B of the Evidence Act, 1872 speaks about presumption as to dowry death which reads as under.
"113B presumption of dowry death-
1) When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with any demand for dowry, the court shall presume that such person had caused the dowry death.
Explanation.- for the purposes of this Section "dowry death" shall have the same meaning as in Section 304B of the Indian Penal Code. The prosecution under Section 304B Indian Penal Code cannot escape from the burden of proof that the harassment or cruelty was related to the demand for dowry and such was caused "soon before her death". In view of the explanation to the said Section the word 'dowry' has to be understood as defined in Section 2 of the Dowry Prohibition Act, 1961which 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 or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies".
To attract the provisions of Section 304B, one of the main ingredients of the offence which is required to be established is that "soon before her death", she was subjected to cruelty or harassment "for, or in connection with the demand for dowry". The expression "soon before her death", used in Section 304B Indian Penal Code and Section 113B of the Evidence Act has been included to satisfy the proximity test. In fact, Ld. Counsel appearing for the appellant submitted that there is no proximity between the alleged demand of dowry and harassment. Though, the 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. Accordingly, the determination of the period which can come within the term "soon before her death" is to be determined by the courts, depending upon the facts and circumstances of each case. However, the said expression would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. In other words, there must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence.
The Hon'ble Apex Court in Banshi Lal vs. State of Haryana reported in AIR 2011 Supreme Court 691 paras 16 to 18 held "that while considering the case under Section 304B cruelty has to be proved during the close proximity of the time of death and it should be continuous and such continuous harassment, physical or mental, by the accused should make life of the deceased miserable which may force her to commit suicide. It was further held by the Hon'ble Supreme Court that where the cruelty has been proved during the close proximity of the time of death then the provision of Section 113B of the Indian Evidence Act, 1872 providing for presumption that the accused is responsible for dowry death, is to be pressed in service. In paras 19 and 20 of the judgement the Hon'ble Supreme Court has further held as follows;
"It may be mentioned herein that the legislature in its wisdom has used the word 'shall' thus making a mandatory application on the part of the court to presume that death had been committed by the person who had subjected her to cruelty or harassment in connection with any demand of dowry. It is unlike the provisions of Section 113A of the Evidence Act where a discretion has been conferred upon the court wherein it had been provided that court may presume abatement of suicide by a married woman. Therefore, in view of the above, onus lies on the accused to rebut the presumption and in case of Section 113B relatable to Section 304B Indian Penal Code, the onus to prove shifts exclusively and heavily on the accused. The only requirements are that death of a woman has been caused by means other than any natural circumstances; that death has been caused or occurred within seven years of her marriage; and such woman had been subjected to cruelty or harassment by her husband or any relative of her husband in connection with any demand of dowry.
Therefore, in case the essential ingredients of such death have been established by the prosecution, it is the duty of the court to raise a presumption that the accused has caused the dowry death. It may also be pertinent to mention herein that the expression "soon before her death" has not been defined in either of the statutes. Therefore, in each case, the court has to analyse the facts and circumstances leading to the death of the victim and decide if there is any proximate connection between the demand of dowry and act of cruelty or harassment and the death".
The Hon'ble Supreme Court in Mustafa S. Shaikh vs. State of Maharashtra reported in AIR 2013 Supreme Court 851 paras 6 and 8 held as under:-
"in order to convict an accused for the offence punishable under Section 304B Indian Penal Code the following essentials must be satisfied.
(I) The death of a 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 or 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 above-mentioned ingredients are attracted in view of the special provision, the court shall presume and it shall record such facts 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 unmistakably on him to do so and he can discharge such burden by getting an answer through cross- examination of the prosecution witnesses or by adducing evidence on the defence side".
With these principles in mind let us analyse the evidence led by the prosecution.
In the case on hand the prosecution has examined as many as twelve witnesses in all in order to substantiate the allegations leveled against the accused appellant. Out of the twelve witnesses P.W.1 Bokul Das, P.W.2 Sumodh Chandra Barman and P.W.3 Rajkumar Barman were declared hostile. They were cross-examined but unfortunately they did not support the allegation leveled against the appellant. However, from the evidence of the P.W.1, P.W.2, and P.W.3 it is crystal clear that Satyendranath Barman the appellant was married to Hema at Kuchimora under P.S. Raiganj. It is stated by these witnesses that the marriage was held on the 16th day of Ashar in the year 2002. The aforesaid three witnesses also admitted in their respective evidence that Hema subsequently died at her father's house by taking poison. Though these three witnesses did not support the prosecution case fully but due to their non-cooperation the credibility of the evidence of other witnesses cannot be disbelieved. P.W.6 is the F.I.R. maker and in the F.I.R. he has stated that at the time of marriage of Hema the brother of P.W.6 who happens to be the father of Hema gave one motorcycle, gold and silver ornaments and other materials as dowry, as per the demand of his son- in-law and his family. It is further stated in the F.I.R. that the brother of P.W.6 i.e. the father of the victim could not give Rs. 10,000/- at the time of marriage and promised to give the amount within 5/6 months. P.W.6 in his evidence categorically stated that the marriage of the victim girl was solemnized with the appellant on 16th Ashar 1409B.S. Anadi Barman P.W.8, father of the victim girl failed to pay the said money and as the said money was not given Hema Barman was forcibly kept in their house and it was stated by the appellant that if the said amount of Rs. 10,000/- was not given he would not take back Hema Barman. The appellant also claimed the said amount of Rs. 10,000/- prior to puja. On 4th Ashwin, 1409 B.S. Hema Barman committed suicide by taking poison. She was admitted to Raiganj District Hospital thereafter he lodged the written complaint at Raiganj P.S. During his cross- examination P.W.6 denied the suggestion put to him that there was no talk about the payment of Rs. 10,000/- within 4/5 months of the marriage. He also denied that the appellant had not stated that if the amount of Rs. 10,000/- was not paid he would not take back his wife. Further he denied the suggestion that the accused persons had never inflicted any torture upon his niece Hema in connection with payment of Rs. 10,000/-.
P.W.4 Trishna Barman is the mother of the victim. She also stated that her daughter Hema was married with the appellant son of Nakul Barman of Mahajanbari under P.S. Hemtabad on 16th Day of Ashar, 1409 B.S. as per Hindu Rites and Customs. At the time of marriage they gifted Hema two bhori gold and 10 bhori silver and one motorcycle to the appellant besides utensils, bedding and clothing but they failed to meet the demand of Rs. 10,000/- made by the appellant and his family. They had agreed to handover the sum of Rs. 10,000/- to the appellant within six months of the marriage. Hema was taken to her parental home by the appellant at Kochimuha on 28th day of Shraban, 1409 B.S. Then the appellant again came to their house and took Hema to her matrimonial home. In her matrimonial home the victim girl was again subjected to torture both physically and mentally by her husband and other in laws for Rs. 10,000/-. It was a Thursday when the victim girl was taken to her parental home and one day after that day i.e. on Saturday at about 7:00 P.M. took poison in their house. She was taken to the Raiganj District Hospital where she died. P.W.4 also stated in her evidence that accused persons used to put continuous torture upon Hema while she was residing with them, for payment of Rs. 10,000/- to them and in this way she was subjected to physical torture by accused persons.
P.W.8 Anadi Barman is the father of the victim Hema Barman. He stated in his evidence that his daughter's marriage was solemnized at Village Mhajanpara, P.S.-Hemtabad, with the appellant on 16th Day of Ashar, 1409 B.S. as per Hindu Rites and Customs. In the said marriage they had given one motorcycle, gold ornaments of two bhori, and utensils of bell metal. It was settled that they would pay Rs. 10,000/- in cash but they failed to pay the said money. After marriage his daughter went to her matrimonial home. His daughter and son-in-law came to their house on the occasion of Astamongala. But thereafter they started to create problems on the matter of payment of Rs. 10,000/- which was due. P.W.8 requested the accused persons for six months time for making payment of the said cash. Within one month of marriage his daughter came back to their house and asked them to make payment of Rs. 10,000/-. Then his daughter was taken back but after few days his daughter was again sent back to their house. At that time his daughter told them to make immediate payment of the said cash amount to the accused persons. This was in the month of Bhadra. On 2nd Ashwin of the same year his daughter consumed poison. P.W.8 categorically stated in his evidence that his daughter had consumed poison as he failed to pay the said cash amount of Rs. 10,000/-.
P.W.5 Dr. Radheshyam Mahato stated in his evidence that on 22.9.2002 he was posted at Raiganj District Hospital as Medical Officer. On that date over the dead body of the victim girl post mortem was done by him as Medical Officer of Raiganj District Hospital. No external injury was found over the dead body but in her stomach 50c.c. whitish liquid was found, and smell of organ phosphorus was coming out. In his opinion the victim girl died out of poisoning. P.W.5 preserved the viscera and it was sent for FSL, to determine cause of death but no report was received as placed before P.W.5 for the final report. The post mortem report has been recorded in prescribed form by P.W.5 in his own handwriting and he signed on it. The post mortem report is marked as Exhibit-1 in the instant case.
Thus, on careful scrutiny of the evidence of P.W.4, P.W.6 and P.W.8 we find that it has been clearly established that the victim girl was given in marriage with the appellant on 16th Ashar, 1409 B.S. as per Hindu Rights and Customs and at the time of marriage they gifted two bhori gold and 10 bhori silver and one Motor cycle to the appellant along with utensils, bedding and clothing but they failed to meet the demand of Rs. 10,000/- immediately. They promised to pay the said sum within six months from the date of marriage. After reaching her matrimonial home the victim was subjected to torture both physically and mentally by her husband and other-in-laws of her matrimonial home over the demand of Rs. 10,000/-. The victim girl was taken to her parental house lastly by their son-in-law the appellant on Thursday and one day after that day i.e. on Saturday the victim girl took poison at about 7:00 P.M.. So it is crystal clear that the victim girl committed suicide within a period of two months and a few days from the time of her marriage.
The Ld. Advocate appearing for the appellant drew our attention to the cross-examination of P.W.12 Paritosh Singha, I.O. and stated that during his cross-examination, P.W.12 admitted that P.W. 4 Trishna Barman in her statement given to P.W.12 had stated to him that she did not know what was said by her son-in-law to her daughter which led Hema to commit suicide P.W.4 also stated before death the victim girl did not say anything to P.W.4 and others. P.W.4 further stated in her statement to P.W.12 that her son-in-law came to their house on 26th Bhadra and said that he would come in the month of Ashwin to take the victim girl. P.W. 12 also admitted during his cross-examination that P.W.4 Trishna Barman had not stated to him that her daughter was subjected to torture at her in law's house for demand of Rs. 10,000/-. P.W.12 further admitted that P.W.4 did not make any statement to him that the victim girl was deprived of food or clothes and she was under
pressure over demand of Rs. 10,000/-. On scrutiny of the evidence of the P.W.4 as well as P.W.12 certain discrepancies and contradictions exists.
The Ld. Advocate for the appellant also submitted that only on evidence in court the accused person should not be found guilty of any offence either under Section 498A or under Section 304B of the I.P.C. Although submitted by the Ld. Advocate that the nature of harassment or of cruelty meted out to the victim girl is not clearly described in the evidence of P.W.4, P.W.6, and P.W.8. But on careful consideration of the evidence on record we are of the opinion that the involvement of the accused appellant has been clearly established so far as the cruelty or harassment on the ground of demand of dowry to the tune of Rs. 10,000/- is concerned. It has been duly proved that the marriage of the victim girl took place on 1.7.2002 and she died on 21.9.2002 by taking poison. Though there are some contradictions in the evidence of P.W.4 and P.W.12 but that is not sufficient to discharge the accused appellant from being punished. In the instant case no defense witness has been adduced on behalf of the appellant at the time of trial and at the time of his examination under Section 313 of the Criminal Procedure Code the accused appellant only pleaded that the allegation levelled against him are false and he is innocent.
The key words under Section 113B of the Evidence Act, 1872 are "shall presume" leaving no option with a court, but, to presume the accused brought before it of causing a dowry death. However, the redeeming factor of this provision is that the presumption is rebuttable. Section 113B of the Act enables an accused to prove his innocence and places a reverse onus of proof on him. In the case in hand the accused failed to prove beyond all reasonable doubt that the victim died a natural death. The presumption under Section 113B of the Act is mandatory may be contrasted with Section 113A of the Act which was introduced contemporaneously. Section 113A of the Act, dealing with the abatement of suicide use the expression 'may presume'. This being the position a two stage process is required to be followed in respect of an offence punishable under Section 304B I.P.C.: it is necessary to first ascertain whether the ingredients of the section have been made out against the accused; if the ingredients are made out, then the accused is deemed to have caused the death of the woman but is entitled to rebut the statutory presumption of having caused a dowry death. From the evidence on record in the present case the victim died an unnatural death by committing suicide as she was subjected to cruelty/harassment by her husband for demand of Rs. 10,000/- which started from the time of her marriage and continued till she committed suicide. Thus, the provisions of Section 304B and 498A of the Indian Penal Code are attracted.
In the light of the above discussion, we are of the opinion that the victim suffered death at her paternal home, otherwise than under normal circumstances, within seven years of her marriage, and the case squarely falls within the ambit of dowry death. In the present case from the evidence of P.W.4, P.W.6 and P.W.8, we find that the harassment of the deceased was with a view to coerce her to convince her parents to meet the demand of Rs. 10,000/-.
All the above factors clearly establish the legal requirements for an offence falling under Section 304B and 498A Indian Penal Code with the aid of Section 113B of the Evidence Act against the accused appellant, and the conviction and sentence imposed, therefore, do not call for interference. Hence, the appeal fails and is accordingly dismissed.
The judgement and order of conviction passed by the Ld. Court below is hereby made confirmed.
Let a copy of this judgment, along with the L.C.R. be sent down to the Ld. Court below.
I agree (Nadira Patherya, J.) (Amitabha Chatterjee, J.)