Calcutta High Court (Appellete Side)
Saroj Raha vs The State Of West Bengal on 2 March, 2012
Author: Indira Banerjee
Bench: Girish Chandra Gupta, Indira Banerjee
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
The Hon'ble Justice Girish Chandra Gupta
And
The Hon'ble Justice Indira Banerjee
CRA 741 of 2008
Saroj Raha ... Appellant
-vs-
The State of West Bengal ... Respondent
For the Appellant - Mr. Jayanta Narayan Chatterjee
Mr. Shakti Chakraborty
Mr. N. Ghosh
For the State - Mr. Prasun Kumar Datta
Mr. Subrata Roy
Heard on - 01.3.2012 and 02.3.2012
Judgement on - 02.3.2012
Girish Chandra Gupta, J.
This appeal is directed against a judgement dated 25th September, 2008 passed by the learned Additional Sessions Judge, 3rd Court, Hooghly in Sessions Trial Case No. 6(4)/2006 (State -vs- Saroj Saha) arising out Balagarh P. S. Case No. 128 of 1998 dated 2nd December, 1998 by which the learned Trial Court held the sole accused guilty offences punishable under Sections 498A and 304B of the Indian Penal Code. By an order dated 26th September, 2008 he sentenced the convict to rigorous imprisonment for three years as also to pay a fine of Rs.1,000/- in default to suffer further rigorous imprisonment for a period of three months for the offence punishable under Section 498A of the Indian Penal Code. The convict was also sentenced to rigorous imprisonment for ten years as also to pay fine of a sum of Rs.3,000/- in default to suffer further rigorous imprisonment for six months for the offence punishable under Section 304B of the Indian Penal Code.
The case of the prosecution briefly stated is that ever since the marriage of the deceased to the accused, she was tortured by the accused and his mother in connection with a claim of further dowry. A car was given to the accused but the torture continued unabated and ultimately the deceased ended her life by consuming acid within 2½ years of her marriage.
The prosecution examined 15 (fifteen) witnesses. P.W.1 is an elder brother of the deceased. He is also the de facto complaint. The P.W.2 is the mother of the deceased. P.W.3 is another elder brother of the deceased. P.W.4 is yet another brother of the deceased. P.W.10 is an elder sister of the deceased. P.W. 5 is a barber by profession. He was present at the time of marriage between the deceased and the appellant. He did not have any knowledge as to how did the accused behave with the deceased. The P.W. 6 is a co-villager of the accused. All that he deposed is that the deceased committed suicide and the accused was a driver by profession. P.W. 7 is also a neighbour of the accused. He merely knew that the wife of the accused had died. He had no personal knowledge in the matter. P.W. 8 at the relevant time was the Executive Magistrate and conducted the inquest. Rest of the witnesses are all official witnesses including the investigating officer. Therefore, the witnesses to the incident are P.Ws.1, 2, 3, 4 and 10.
P.W. 1 during his examination-in-chief deposed that a sum of Rs.70,000/- in cash and gold ornaments weighing 7/8 tolas were gifted at the time of marriage. But the demand for further money was raised on the ground that the entire agreed amount had not been paid which the P.W.1 came to know from his sister when she had come down to her paternal house. During his cross-examination he admitted that he had been to the matrimonial house of the deceased only once. The P.W. 2, mother of the deceased, deposed that she came to know from her daughter when she had come down to the paternal house that the accused person assaulted her and demanded more money. She admitted during her cross-examination that "The deceased came to our house lastly before about one year from the date of her death." P.W. 3 supported the evidence of the P.W. 1 as regards the ornaments gifted at the time of marriage. P.W. 3 has also disclosed that the accused on two occasions had demanded money from him for his business but he did not pay anything. He also admitted that the police never examined him. P.W. 4 supported the evidence of the P.W. 1 as regards the gifts given at the time of marriage. He added that he had an ambassador car which he gave to the accused. He also gave him money to obtain a driving licence. During his cross-examination he deposed that the ambassador car, which was given by Him to the accused, was given on hire to Amar Iron Udyog at Bansdroni.
From the evidence of the P.Ws.1, 2, 3 and 4 summarised above the following inferences can safely be made:-
(a) The deceased did not come back to her paternal house for a year prior to her death.
(b) Demand for dowry was made. An ambassador car was subsequent to the marriage given to the accused which was hired out to Amar Iron Udyog at Bansdroni.
(c) The accused at the relevant point of time was a driver.
There was thus a demand for money and the demand was satisfied. When was the ambassador car given to the accused is not, however, clear because the relevant dates have not been disclosed by the witnesses. It is also evident from the evidence indicated above that the information, as regards the demand for money and the torture, was received from the deceased when she came down to her paternal house. Admittedly, she did not come back to her paternal house for a year before her death. Therefore the episode of demand and torture was more than a year old at the time of her death. If demand was there and the demand was satisfied, as disclosed by the witnesses, the torture should also have come to an end. But we do not have before us any definite evidence with regard thereto. It has also been deposed by the witnesses that for a period of one year, the husband and the wife were residing separately from the rest of the members of the family at Sonarpur. Therefore, we do not have any clear or even unclear picture before us as regards the actual state of affairs, when the couple with no one else in the household at Sonarpur were residing. The only other witness besides those already witnessed is Mala, the elder sister of the deceased (P.W. 10). From her evidence, it appears that 4/5 days prior to the incident, the husband and the wife called at her house and the undisputed fact is that the deceased consumed poison in the house of Mala (P.W.10). What led her to consume poison can, therefore, be learnt only from the evidence of Mala who deposed in that regard as follows:-
" After the marriage the accused person took my deceased sister to our house at Sonarpur before about 4/5 days of the day of her death. One day after about 4/5 days at our house we all including the deceased and her husband took seat for having our lunch in body; then an altercation took place between the deceased and her husband and I scolded them. So after taking lunch they went to the room. The deceased went to the tubewell to wash hands with a glass in her hand and then the deceased made sound of vomiting. Then I was busy for washing the utensils and on hearing that sound of vomiting. Then I was busy for washing the utensils and on hearing that sound I threw those utensils and came to the deceased. The glass of her hand fell down and I asked her as to what she has done; then she told me that she has consumed acid. I brought her to a room and gave some water. Then I called for a kaku of our adjacent house and so the accused person called an auto rickshaw for taking the deceased to hospital. Initially the deceased was taken to M. R. Bangur Hospital where she could not be admitted. From there the deceased was taken to Sambhunath Pandit Hospital where she was admitted. She was admitted there on 22.6.2008 and she died.
When the altercation was going on between the deceased and the accused person then the accused person also slapped her; so the deceased has consumed acid."
From the aforesaid deposition of the P.W. 10 we have to decipher as to what had happed on the fateful day when the deceased took the extreme step of consuming acid.
At this stage, we have to notice the submission of Mr. Jayanta Narayan Chatterjee which are as follows:-
"(a) There is no evidence to show that the accused caused dowry death within the meaning of Section 304B of the Indian Penal Code.
(b) He drew our attention to the following portion of the cross-
examination of the P.W. 10:-
"I do not know whether the deceased was a patient of gastric ulcer. But I have heard that it was prohibited to consume chilli and so the altercation took place on that day over the issue of consuming chilli. The deceased intended to consume chilli and spices but the accused person prevented her; so the altercation took place. Both of them told offensive languages to each other and so then the accused person slapped her."
On the basis of the aforesaid deposition Mr. Chatterjee submitted that the altercation between the husband and the wife arose more out of the concern of the husband for her well being than from any animosity between them. He added that it was a case of normal wear and tear of a married life and the extreme step taken by the deceased was not a natural consequence for which the accused may be held to have committed any offence. He, therefore, prayed for an outright acquittal.
(c) In the alternative he submitted that the appellant at the highest may be held guilty for an offence under Section 306 of the Indian Penal Code and minimum possible punishment should be inflicted considering that the role played by him arose out of concern for the wife.
Mr. Datta, the learned advocate appearing for the State, did not dispute that there is no evidence on the record to show that soon before her death the deceased was subjected to cruelty or harassment by her husband in connection with any demand for dowry but he added that there is adequate evidence to show that an offence under Section 306 of the Indian Penal Code which is also the alternative case of Mr. Chatterjee was in fact committed by the accused-appellant.
From the evidence indicated above the following facts appear to have been well-established:-
(a) The deceased died within 2½ years of her marriage.
(b) There was a demand for dowry which one way or the other was satisfied by providing the accused with a car belonging to the P.W. 4 which was let out to Amar Iron Udyog presumably for providing a livelihood to the couple.
(c) It is fairly established that almost a year after the marriage the couple started residing, separately from the joint family, at Sonarpur which is also the place where the P.W. 10 resided.
(d) 4/5 days prior to her death the incident took place. It is on record that she was admitted to the hospital on 22nd June, 1998 and she died on 26th June, 1998. Therefore, the period of 4/5 days was probably spent in the hospital. We can, therefore, safely draw our inference that the incident took place in the house of the P.W. 10 on the very day they called at her house.
The fact that the couple started quarreling when all the three were taking lunch also leads us to infer that the couple probably came to the house of the P.W. 10, elder sister of the deceased, after they had quarreled fought between themselves and it is this quarrel which continued when they were taking lunch. What was the magnitude of the quarrel between them can only be guessed from the conduct of the deceased and the accused. The P.W. 10 did not disclose as to what had sparked of the altercation between the husband and the wife. We are, as such, inclined to think that it was a continuation of an earlier altercation which led the couple to call at the house of the P.W.
10. We are unable to accept the submission of Mr. Chatterjee that the altercation between the couple related to intake of chilly prohibited by the doctor because she was a patient of gastric ulcer. He drew the aforesaid inference from the part of the cross-examination of the P.W. 10 which we have quoted above. We are inclined to think that the aforesaid part of the cross-examination of the P.W. 10 is a case suggested to her by the defence and is by no means a definite evidence of the P.W.
10. The way the answers were recorded has however left much to be desired. But the beginning of the paragraph, leaves no manner of doubt that it was a case of the defence suggested to the P.W. 10 and she replied that she did not know.
We are, as such, of the opinion that the husband and the wife were quarreling. Since when they were quarreling no one knows. But the fact they were quarreling is very clear. During the altercation in the presence of the P.W. 10 the deceased was scolded by the P.W. 10 and was slapped by the accused which aggravated the situation and led her to consume acid. We would have been inclined to accept the submission of Mr. Chatterjee that it was a stray incident and nothing more than normal wear and tear of life between the husband and the wife, but the difficulty arises from the fact that the accused did not offer any explanation whatsoever during his examination under Section 313 of the Code of Criminal Procedure.
Mr. Chatterjee submitted that there is no definite evidence before us to show that the deceased consumed poison because the medical opinion is that she died of cardiac respiratory failure. We are unable to accept this submission. From the death certificate, it appears that she consumed acid. She was at the hospital for four days. It is, therefore, reasonable to suppose that attempts were made to save her. The poisonous substance must have been pumped out and that is the reason why no poison was found by the Central Forensic Science Laboratory. Therefore, we have no doubt in our mind that she committed suicide by taking poisonous substance within 2½ years of her marriage and there is evidence to show that she had been subjected to cruelty otherwise there would have been no occasion for the P.W. 4 to give a car to the accused. We are, as such, inclined to hold the appellant is guilty of an offence under Section 306 of the Indian Penal Code. In the result, the appeal partly succeeds. The conviction under Section 304B of the Indian Penal Code is set aside. The conviction under Section 498A of the Indian Penal Code is upheld. The appellant is also convicted of the offence punishable under Section 306 of the Indian Penal Code.
Considering the facts and circumstances of the case, we are of the view that punishment restricted to five years of rigorous imprisonment shall serve the ends of justice. Accordingly, the appellant is sentenced to suffer rigorous imprisonment for a period of five years as also to pay fine of Rs.5,000/- in default of such payment to undergo further rigorous imprisonment for a period of one year. The sentence awarded for the offence under Section 498A of the Indian Penal Code shall run concurrently.
The learned trial court is directed to issue a revised jail warrant and the appellant is directed to forthwith surrender and to serve out the sentence as indicated herein.
(Girish Chandra Gupta, J.)
I disagree and I reserve my judgment (Indira Banerjee, J.)
Judgment on : 20.09.2013
INDIRA BANERJEE, J.
On or about 26th January, 1996 a young girl, between 23 and 24 years of age took seven steps around the fire in nervous anticipation, in the hope of a happy married life with the accused appellant.
However, soon after marriage, all the rosy dreams of this young bride were shattered. Instead of the love of a husband, the security of a happy family life and the joy of children, all that Chandana got was insult, abuses, caustic remarks and torture, physical as well as mental.
In the hope of settling Chandana, her family paid Rs.70,000/- as dowry apart from 8 'bharis' of gold and other articles. This did not satisfy the accused appellant, the driver of a private car by vocation, and the members of his family, who thought that the accused appellant was worth much more. The accused appellant and his family demanded more, alleging that the agreed dowry amount had not been paid and started torturing Chandana, physically and mentally.
To save his one and only sister from misery, humiliation, cruelty and torture, one of Chandana's brothers, Sujoy Dey, himself a man of small means, gave the accused appellant an 'Ambassador' car, which he had. The car was given out on rent. It has, however, transpired from the evidence adduced by the witnesses, that the income from renting the car declined. The income was not sufficient. If the accused appellant could not earn enough to support himself and his wife, there was an easy and simple option, that is, to extort money from the family of his unfortunate wife by torturing her.
There was pressure on Chandana to bring more from her family. At least, so it is alleged. The evidence on record reveals that Chandana's family was in impecunious circumstances. Her mother was a widow, substantially dependent on her sons, who had to maintain their own families as well. Within two and a half years of marriage Chandana was constrained to end her life by consuming acid. She, however, consumed acid at the residence of her elder sister, Mala, at Sonarpur.
In course of trial in the Court below, an aged widow (P.W. 2) wailed inconsolably. Cruel destiny had robbed this seventy five year old lady of her youngest offspring, as she could not fulfil the dowry demands of the accused appellant. The mother and the three brothers of Chandana, who deposed in Court, (P.W. Nos. 2, 1, 3 and 4) all asserted that Chandana had been tortured for more dowry.
The case sought to be made out by the prosecution is that a few days before Chandana consumed poison, the accused appellant and Chandana came to stay in Mala's house for a few days. On 21st June, 1998, Mala heard her sister Chandana weeping. When Mala asked Chandana why she was weeping, Chandana told her that she had been assaulted by her husband for dowry. On 22nd June, 1998 Chandana consumed acid, and she died on 26th June, 1998.
However, in her oral testimony Mala has not stated anything about assault for dowry. She only deposed that on the fateful day on which Chandana consumed acid, there was a quarrel between the accused appellant and Chandana during lunch. The couple abused each other using foul language. The accused appellant even slapped Chandana and Mala rebuked them both.
In her evidence, Mala did not state what was the reason for the quarrel between Chandana and the accused appellant. In cross-examination, however, in reply to a suggestion made by defence counsel, Mala deposed that she had heard that Chandana had been prohibited from consuming chilli and that the quarrel took placed since Chandana wanted to have chilli and the accused appellant prevented her.
Unfortunately, in Sessions trials in the Courts below, it is not the practice to record the questions and the exact answers as given by the witnesses. The judges usually summarize the evidence in their own language without recording the questions which were answered. An answer given by a witness, in reply to a question, can properly be construed in the context of the question that is asked. Furthermore, the tone, manner and the context in which something is said and the demeanour of the witness, can make a lot of difference to the tenor, intent, meaning and credibility of what is said. In the instant case too, only the answers given by Mala in her cross- examination have been summarized by the learned Judge in his own language. Neither have the questions been recorded, nor have any further questions been put to Mala to try and bring out what exactly happened at the time of lunch on the day on which Chandana consumed acid.
It is difficult to believe that the action of the appellant of preventing Chandana from having chilli, out of genuine husbandly concern for her health, and Chandana's insistence on consuming chilli could have led to such a fight that the appellant should slap Chandana and Chandana should put an end to her life. My esteemed brother has very rightly not accepted Mr. Chatterjee's submission, that the reason for the altercation was Chandana's insistence on consuming chilli. There must have been more.
Chandana's mother and three of Chandana's brothers have all deposed in Court, that Chandana was tortured for dowry. The three brothers all deposed that at the time of marriage, Rs.70,000/- was paid in cash apart from 8 'bharis' of gold ornaments and afterwards an 'Ambassador' car. There is unanimity in the evidence of the mother and three brothers that the victim had complained of torture for dowry after marriage. As observed above, but for the torture on Chandana, it is unlikely that her brother, himself of small means, would have given his 'Ambassador' car to the accused.
Dowry deaths shock the conscience of the society. The menace has to be stopped by stringent laws that must be strictly enforced and implemented. It is extremely shameful that a vast number of women of our country are treated as bargainable commodities whose prestige and position in their matrimonial home depends on the dowry they bring. Many women are killed for their inability to bring the desired dowry. Many more are insulted, abused, tortured, harassed and slowly pushed towards death day by day. When the humiliation and torture becomes unbearable some of these women have little option but to put an end to their own life.
Those responsible for dowry deaths must be given severe punishment, that would be a deterrent to those seeking to extort money from the hapless family members of a helpless bride, by way of dowry. In no circumstances can the Court diligently explain cruelty and torture on a bride for dowry. The Court cannot afford to be pedantic, pedagogic, myopic or hyper-technical in dealing with crime against women.
Section 304B of the Indian Penal Code has been enacted to put an end to death as a consequence of cruelty, torture and harassment in connection with any demand for dowry. Section 304B of the Indian Penal Code is set out herein below :-
"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 here death.
Explanation. - For the purposes 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."
Section 304B is attracted when the death of a woman occurs otherwise than in normal circumstances, within seven years of her marriage and it is shown that "soon before her death"
the petitioner was subjected to cruelty or harassment by her husband or any relative of her husband, for or in connection with any demand for dowry. The expression "soon before death"
would mean in the recent past and not immediately before the death. There must be some 'proximate' and 'live-link' between the effect of cruelty based on dowry demands and the death.
In Kans Raj Vs. State of Punjab reported in AIR 2000 SC 2324 the Supreme Court held as follows:-
""Soon before" is relative term which is required to be considered under Specific circumstances of each case and no straight- jacket formula can be laid down by fixing any time limit. This expression is pregnant with the idea of proximity test. The term "soon before" is not synonymous with the term "immediately before" and is opposite of the expression "soon after" as used and understood in Section 114. Illustration (a) of the Evidence Act. These words would imply that the interval should not be too long between the time of making the statements and the death. It contemplates the reasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. ............ In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be 'soon before death' if any other intervening circumstance showing the non-existence of such treatment is not brought on record, before the alleged such treatment and the date of death. It does not, however, mean that such time can be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough."
In Uday Chakraborty vs. State of West Bengal reported in (2010) Cri. L.J. 3862 : (2010) 7 SCC 518 the Supreme Court held as follows:
"15. The offence under Section 304-B read with 498-A IPC is made out in this case and has been proved by the prosecution beyond any reasonable doubt. The period of two years in a marriage itself is a very short period. In fact, the deceased had died in less than two years of marriage. The expression "soon before her death" has to be given its due meaning as the legislature has not specified any time which would be the period prior to death, that would attract the provisions of Section 304-B IPC. The concept of reasonable time would be applicable, which would primarily depend upon the facts of a given case, the conduct of the parties and the impact of cruelty and harassment inflicted upon the deceased in relation to demand of dowry to the cause of unnatural death of the deceased. In our considered view, the marriage itself has not survived even for a period of two years, the entire period would be a relevant factor in determining such an issue.
16. The Court has to examine the cumulative effect of the evidence on record and analyse the same in its true context. Once the appellant had ensured execution of the "chuktiparta" at the time of marriage then this itself would fully support the version of the prosecution and statement of the witnesses that there was demand of dowry. These statements cannot fall outside the zone of consideration for the courts, in the present case. It cannot be said that the "chuktiparta" executed at the time of marriage is not a material and relevant piece of evidence and cannot be relied upon or taken into consideration by the courts."
The proposition which emerges from the above quoted judgments of the Supreme Court is that the expression "soon before the death" is not to be interpreted as immediately before death. The section is not to be understood to mean that the cruelty or harassment should have taken place just before the death. When the marriage itself is short, two years in the case of Uday Chakravarty (supra) and the bride was subjected to consistent harassment for dowry, it cannot be said there is no proximate link between the death and the harassment.
In this case Chandana was married for hardly two years and five months. The period of two years and five months in the marriage is, in itself short. Chandana has died in unnatural circumstances within 2½ years of marriage and there is evidence that she was subjected to prolonged cruelty and harassment for dowry after her marriage. It cannot be said that there was no proximate link between Chandana's death and the harassment meted out to her.
In Sanat Panja vs. State of West Bengal reported in (2009) Cri. L.J. 407, a Division Bench of this Court held that where the death of a victim had taken place 84 days after payment of balance dowry, the incident of demand for dowry and torture could not be said to be stale. This Court held that 84 days could well be "soon before death".
In Deen Dayal & Ors. vs. State of U.P. reported in (2009) Cri. L.J. 1119 the Supreme Court held that the phrase 'soon before death' occurring in Section 304B of the Indian Penal Code was to be understood in a relative and flexible sense.
The Section would obviously not apply in a case where there is little possibility that the death was a direct outcome of the demand of dowry. Where, for example, the cruelty meted out to the deceased is not referable to any demand of dowry, but in unforgivable suspecting of the chastity of the deceased, no presumption under Section 113-B of the Evidence Act can be drawn against the accused.
The interval between cruelty and harassment for dowry, and the death of the victim, should also not be much. Where there is long gap, there is a strong possibility that the death may not have been the result of any harassment, cruelty or torture in connection with the demand for dowry.
The expression "soon before her death" is an elastic term. What is relevant is that there should be a perceptible nexus and/or live link between the death of the deceased and the dowry related harassment and/or cruelty inflicted on her, as held by the Supreme Court in Raja Lal Singh vs. State of Jharkhand reported in AIR 2007 SC 2154.
In order to draw presumption as to dowry death, the initial burden lies on the prosecution to prove the basic ingredients of Section 304-B read with Section 2 of the Dowry Prohibition Act, 1969. Where, however, the wife has died an unnatural death within seven years of her marriage, there is evidence adduced to show that there was demand for dowry and torture of the bride in connection with the demand for dowry and the defence of the accused husband is of total denial, as in this case, the presumption under Section 113-B would operate. However, such presumption being rebuttable, the onus would be on the accused to rebut the presumption.
In the State of Karnataka Vs. M.V. Manjunathegowda reported in AIR 2003 SC 809 :
2003 (2) SCC 188 the Supreme Court held that in order to establish offence under Section 304B of the Indian Penal Code, the prosecution is obliged to prove that the death of the woman was caused by burn or bodily injury or occurred otherwise than under normal circumstances and such death occurred within seven years of her marriage. The prosecution is also required to show that soon before her death the woman was subjected to cruelty or harassment by her husband or any relative of her husband. Such harassment and cruelty has to be in connection with any demand for dowry. If the prosecution is able to prove that the death of the woman occurred otherwise than in normal circumstances within seven years of her marriage, and it is shown that the woman was harassed in connection with any demand for dowry, the presumption under Section 113B would operate.
The presumption of course is rebutable, but onus to rebut shifts on the accused. In the case of M.V. Manjunathegowda (supra) the defence of the accused was of total denial, as in this case, and as such the presumption as to dowry death envisaged under Section 113B of the Evidence Act was held to have remained unrebutted.
In Satbir Sing Vs. State of Harayana reported in 2005 (12) SCC 72 : AIR 2005 SC 3546 the Supreme Court reiterated the proposition laid down in M.V. Manjunathegowda (supra) and held that once the prosecution established that the death of a woman occurred otherwise than under normal circumstances within seven years of her marriage and showed that soon before her marriage she was subjected to cruelty or harassment by her husband or any relative of her husband in connection with any demand for dowry, the onus to rebut the presumption of dowry death would shift on the accused.
Dowry is seldom demanded in the presence of third persons and outsiders. Nor is a woman tortured for dowry in the presence of outsiders. Torture and/or harassment of women for dowry is generally perpetrated within the walls of the matrimonial home. In a legal system, where a person is presumed to be innocent, unless proved guilty beyond reasonable doubt, it would almost be impossible to prove a dowry death beyond any iota of doubt, since the victim is under the control of the perpetrators of the crime, in their own home.
It is difficult to get independent witnesses to prove demand for dowry, torture and/or harassment in connection with demand for dowry or even dowry death. The Court has thus to depend on the evidence of relatives of the bride who may have been told by the bride of the torture and harassment meted out to her for dowry and/or to whom demands for dowry may have been made.
The harsh provision of Section 304B, therefore, provides for presumption of dowry death whenever there is an unnatural death within seven years from the date of marriage and there is evidence to show that there was demand for dowry and the deceased was subjected to cruelty and torture in connection with that demand for dowry.
As observed above, this provision deals with death as a consequence of torture and harassment for dowry and not with unnatural death for other reasons. In dowry death cases the relations of the victim are the best witnesses. The relations can depose what was the treatment given by the husband or the in-laws to the victim. Ofcourse, there can be no doubt that the evidence of aggrieved witnesses has to be scrutinized cautiously. What is needed to be ascertained is, whether the evidence brought on record, read in its entirety satisfies the ingredients of dowry death.
Little turns around the fact that Mala did not in her evidence say that there was a fight over dowry, or that the accused appellant slapped Chandana in connection with his demand for dowry. As held by the Supreme Court, in the judgments referred to above, 'soon before death' is not to be construed to mean immediately before death. The oral evidence of Mala at best fails to establish that there was any demand for dowry in Mala's presence, during the few days that Chandana and the accused were in Mala's house, immediately before the unfortunate incident of Chandana's death by consuming acid.
The Prosecution Witness No.1, Barun Dey, elder brother of Chandana, deposed that their father was not alive when Chandana's marriage was arranged. The brothers who arranged the marriage had given the accused appellant cash of Rs.70,000/- in addition to 7 to 8 'bharis' of gold and other articles that were given to Chandana. To appease the demand for further dowry they gave the accused appellant a car, but the torture on Chandana continued.
The unfortunate mother (P.W. 2) deposed that after about six months of marriage, Chandana informed her that the accused appellant had been assaulting her, demanding more money. The prosecution witness No.3 Ratan Dey another brother of the deceased Chandana deposed that cash of Rs.70,000/- and 7 to 8 'bharis' of gold and other articles were given at the time of Chandana's marriage. About eight or nine months later, their brother Sujoy gave an 'Ambassador' car to the accused appellant. This witness has deposed that even after the 'Ambassador' car was given to the appellant, the appellant came to his house and demanded further money, but he could not satisfy the demand.
The prosecution witness No.4 Sujoy Dey also corroborated the statement of the proseuction witness Nos.1 and 3 that cash of Rs.70,000/-, gold ornaments of 7 to 8 'bharis' of gold were given at the time of Chandana's marriage. This witness has in his evidence deposed that about four to five months after his sister Chandana's marriage, he went to her matrimonial home. Chandana informed him that her husband and mother-in-law had been pressurizing her to bring the balance dowry, which according to them, was due from her family.
A few days later Sujoy (P.W.4) again went to the matrimonial house of the deceased. The accused appellant asked Sujoy to arrange for income for their livelihood. Sujoy gave the accused appellant an 'Ambassador' car, which he had. The accused appellant expressed his inability to obtain driving licence for want of money, whereupon Sujoy (P.W. 4) paid further 7 to 8 hundred rupees to the accused appellant. Sujoy has stated that even afterwards when Sujoy again went to the matrimonial house of Chandana she told her that the accused appellant and his mother used to harass and assault her. Chandana had told him that her mother in law made her wash her hands with earth instead of soap, as according to her mother-in-law, her family had not paid the promised dowry.
In this case, the victim was the youngest of three brothers and two sisters, whose father was dead. The aged frail mother, who had to be given a chair to sit when she deposed, before the Trial Court, wept inconsolably. This is recorded by the Trial Court. The brothers are all semi- educated. Most of them could not study beyond the school level. That one of the brothers should have to give an 'Ambassador' car after marriage, in itself establishes that there was demand coupled with force.
In the instant case, the petitioner died within two and half years of her marriage. To be precise, she died exactly upon completion of two years and five months of marriage. It is not in dispute that the death was unnatural. The victim consumed acid. I concur with the conclusion of my esteemed brother that Chandana committed suicide.
There is ample evidence on record to show that there was demand for dowry as also harassment and torture for dowry. When the death took place within two years and five months of marriage, it cannot be said that the offence of torture for dowry was remote in time or had become stale enough not to disturb the mental equilibrium of the victim.
I agree with the finding of my esteemed brother that there was demand for dowry. I am, however, unable to agree with the finding of my esteemed brother that once the 'Ambassador' car was given, the demand was satisfied. I am unable to accept that after the car was given all disputes were settled, and there was no further demand or torture.
I also do not agree with the finding of my esteemed brother that the episode of demand and torture was more than a year old at the time of Chandana's death. The finding of my esteemed brother that Chandana did not visit her paternal house for a year prior to her death is based on the evidence of Chandana's mother (PW 2). There are inconsistencies in the evidence of Chandana's mother with regard to time which are in any case approximate and based on imperfect recollection. Chandana's mother stated that after about six months of her marriage Chandana informed her that the accused appellant had been assaulting her for more money. After 7/8 months of that disclosure she went to Sonarpur.
The evidence of all the material witnesses read together does not indicate that the accused appellant and Chandana ever resided separately at Sonarpur. Chandana's mother has deposed that the deceased went to Mala's house from her matrimonial home at Balagarh.
It is true that Chandana's mother (PW 2) deposed that she last met Chandana about a year before her death when Chandana came to her paternal house. At the same time she has stated that Chandana went to Sonarpur about 7/8 months after she told her about the torture on her.
It is a matter of record that Chandana died on or about 26th June, 1998. The charge-sheet was filed on 28th April, 2006 after almost 8 years and the trial commenced thereafter in May 2006. Chandana's mother the P.W. 2 gave evidence on 12th May, 2006. Having regard to the time gap between the date of death and the date on which Chandana's mother gave evidence, as also the distressed state of her mind, minor discrepancies and/or inconsistencies in her evidence would necessarily have to be ignored.
Chandana's mother was already a senior citizen, in her mid sixties when Chandana was given in marriage to the appellant. When she came to depose in Court, she was 75 years old. Almost 8 years had elapsed since the death of her youngest child in the most tragic circumstances. Apart from being a lady of advanced age, Chandana's mother had to go through the trauma of losing her daughter for her inability to meet the dowry demand of the accused appellant. As noted above, Chandana's mother (PW 2), a frail old lady broke down in Court and cried inconsolably. She had to be given a chair to sit.
Having regard to her age as also her traumatic experience, it is not unnatural that Chandana's mother's memory should start fading that she should remember only that which was foremost in her mind and forget petty details of time, which were not important to her, more so when the evidence indicates persistent torture throughout the marriage.
In any case, to a lonely widow who had not seen her daughter for some time, a few months might seem like a year. Moreover, if Chandana visited her mother a year before her death and complained of torture for dowry, that shows that the 'Ambassador' car gifted to the accused appellant within a year of Chandana's marriage did not satisfy the accused appellant.
PW 1, Barun Dey's evidence, as recorded, makes little sense. There are obvious grammatical errors and errors in the construction of sentences and use of words. His evidence has to be properly construed to mean that the accused appellant decided to reside separately in Kolkata, so an 'Ambassador' car was given to him. The accused went to Sonarpur but before he moved into any rented accommodation he went to stay in Mala's house, where, after a few days, Chandana consumed acid.
PW 3, Ratan Dey has, in his evidence, stated that Sujoy gave the accused appellant an 'Ambassador' car after about 8/9 months of Chandana's marriage. His evidence also reveals that torture on Chandana continued even after the 'Ambassador' car was given to the accused appellant. This witness has also categorically deposed that the accused appellant came to him to demand money for his business. The demand was not satisfied.
Sujoy Dey, (PW 4), has also deposed that he had gone to Chandana's matrimonial house 4/5 months after her marriage. Chandana told him that she was being pressurized to bring the balance dowry dues. After some time he gave his 'Ambassador' car to the accused appellant as also Rs.700 - Rs.800/- to enable him to obtain a driving licence. Even after Sujoy gifted the 'Ambassador' car to the accused appellant, Sujoy went to the matrimonial house of his deceased sister, Chandana. Chandana told him that the accused appellant and his mother used to torture and harass her for dowry.
Having regard to the evidence of Chandana's mother and her three brothers, I am unable to accept that the incident of torture in connection with demand for dowry took place over a year prior to Chandana's death, or that there was no further demand for dowry after the 'Ambassador' car was given. The car may have been given a year before Chandana took her life. It cannot, however, be presumed that all dowry related disputes were settled after the 'Ambassador' car was given to the accused appellant. On the other hand, except for Mala, all the material witnesses i.e. Chandana's mother and her three brothers in effect and substance deposed that even after the 'Ambassador' car was given Chandana was tortured and harassed for more dowry. The evidence of the four witnesses has not been controverted by the accused appellant by adducing evidences.
There being evidence of dowry demand and torture on Chandana for dowry, and Chandana having died in unnatural circumstances, within two years and five months of her marriage, presumption of dowry death is attracted under Section 113B of the Evidence Act. The onus was on the accused appellant to rebut the presumption. The accused appellant has taken the defence of bare denial. He has not adduced any evidence whatsoever to show that Chandana died due to any other reason. The evidence given by PW 1 to 4 and PW 10 stand uncontroverted. The accused appellant has failed to discharge the onus of rebutting the presumption under Section 304B of the Indian Penal Code, read with Section 113B of the Evidence Act.
In my view there is no infirmity in the judgment and order and sentence under appeal, that calls for interference. I am of the view that the conviction of the accused appellant of offences under Sections 304B and 498A of the Indian Penal Code should be upheld.
In my view the appeal is liable to be dismissed.
(Indira Banerjee, J.)