Calcutta High Court (Appellete Side)
Sam Jacob vs State Of West Bengal on 8 January, 2018
Author: Joymalya Bagchi
Bench: Joymalya Bagchi, Rajarshi Bharadwaj
1
Item no. 341
RP/AB/sg/Aloke
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
BEFORE:
The Hon'ble Mr. Justice Joymalya Bagchi
AND
The Hon'ble Mr. Justice Rajarshi Bharadwaj
C.R.A. 178 of 1995
SAM JACOB
Vs.
STATE OF WEST BENGAL
Amicus Curiae : Mr. Deep Chaim Kabir, Advocate
For the Opposite Party/State : Mr. Ranabir Roy Chowhdury, Adv.
Mr. Rudrodipto Nandy, Adv.
Heard on : January 2, 2018 and
January 08, 2018
Judgement on : January 08, 2018
Joymalya Bagchi, J. :
The appeal is directed against judgement and order of conviction dated 11.07.1995 passed by the learned Additional District & Sessions Judge, 14th Court, South 24 Parganas at Alipore in Sessions Trial No.2(1)93 convicting the appellant under Section 498A/304B of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for three years and to pay a fine of Rs.1000/-, in default to suffer rigorous imprisonment for three months more for the offence under Section 498A of the Indian Penal Code and to undergo rigorous imprisonment for ten years and to pay a fine of Rs.5,000/-, in default to suffer rigorous imprisonment for one year more for the offence under Section 304B of the Indian Penal Code, both the sentences to run concurrently. 2
The prosecution case against the appellant is to the effect that the victim Sultana being the daughter of Razia Hasmi, de facto complainant (PW 1) had a love affair with the appellant who happened to be the tenant of her mother. Their love affair was ill-fated from the beginning as the victim and the appellant belonged to different religion. However, in spite of objections from the respective families, the appellant proceeded to marry the victim under Special Marriage Act on 27th November, 1988. Two months after the marriage there were demands of dowry and it was alleged that the victim was subjected to torture on such score. It is further alleged that appellant and his mother demanded transfer of the flat in their name. Over such demands the victim was tied with a rope and given electric shock. Subsequently, the appellant left the tenanted premises and took a rented apartment in Kustia Road. The torture continued and finally on 02.10.1990 it is alleged the victim was set on fire by the appellant. A mentally weak brother of the victim, namely, Ruby, was residing with the couple at the time of the incident at Kustia road flat. She was rushed to Chittaranjan National Medical College & Hospital and subsequently to SSKM Hospital where she breathe her last on 4.10.1990. Razia Hasmi, the mother of the victim, had been to her native place at Guntur at that time. Upon receiving the information she rushed to Kolkata and lodged complaint with the police resulting in registration of Tiljala PS Case No.420 of 1990 dated 21.10.1990 under Section 498A/304B of the Indian Penal Code.
In the course of investigation statements of witnesses were recorded including that of PW 5 Sabana and PW 8 Ruby Hasmi, brother of the victim under Section 164 CrPC. Upon conclusion of investigation, charge sheet was filed under Section 498A/304B of the Indian Penal Code. The case was committed to the Court of Sessions and thereafter transferred to the Court of the Additional District & Sessions Judge, 14th Court, South 24 Parganas, Alipore for trial and disposal. Charges were framed under Section 498A/304B of the Indian Penal Code. The appellant pleaded not guilty and claimed to be tried. 3
It was the specific defence of the appellant that there were disturbances in the matrimonial home due to the objection of P.W.1 to their intra-religious marriage and he was pressurized to convert to Islam. Due to such pressure he left the rented premises belonging to his mother-in-law and took residence at Kustia Road. On 2.10.1990 the victim suffered an accidental death while lighting a lamp in the kitchen, as there was loadshedding in the locality. Hence, he ought to be acquitted.
In the course of trial, prosecution examined 25 witnesses and exhibited a number of documents. The defence on the other hand examined one witness to probabilize its plea.
In conclusion of trial, the trial judge by the impugned judgment and order dated 11.07.1995 convicted and sentenced the appellant, as aforesaid.
Nobody appears for the appellant. Mr. Deep Chaim Kabir is requested to appear as amicus curiae.
Mr. Kabir argued that the prosecution has failed to prove its case beyond reasonable doubt. The trial court failed to consider the exonerative dying declaration of the victim which is proved by independent witnesses like P.W.2 (neighbour) and the doctor (P.W.14) in the instant case. Furthermore, as there are multiple dying declarations, which are contradictory to one another, the benefit of doubt should go in favour of the appellant.
It is further submitted that no reliance ought to be placed on the evidence of P.W.8 (Ruby) who claimed to be present at the place of occurrence. He was a mentally weak boy and is demeanour during cross- examination by the defence which showed that he was an unreliable witness.
It is also submitted that there is evidence that the room was dark and there is every likelihood that the victim had accidentally caught fire while lighting 4 the lamp, as claimed. He relied on various authorities in support of his contention.
On the other hand, Mr. Roychoudhury with Mr. Nandy appearing for the State submitted that the evidence of the relations of the victim and other neighbouring witness showed that the victim was subjected to severe torture on demands of dowry. It is also submitted that the victim made a dying declaration that she had been set on fire by the appellant to P.W.5. Dying declaration recorded before P.W.2 and P.W.14 is to be discounted as they were made in the presence of the appellant and naturally the appellant had tutored the victim to tell a lie. It is also submitted that there was no load-shedding in the area improbabilizing the aforesaid exonerative dying declaration as would be evident from the deposition of P.W.10. Evidence of P.W.8, an eyewitness proves the prosecution case beyond reasonable doubt. Hence, the appeal is liable to be dismissed.
Let me consider the evidence on record in the light of the rival contentions of the parties.
P.W.1, P.W.5, P.W.8 and P.W.9 are the relations of the victim. P.W.1 is the mother and the defacto complainant in the instant case. She deposed that the mother of the appellant was a tenant in the first floor of premises no.41A Bright Street which is owned by her. There were other tenants in the said building. The appellant married Sultana who was her second daughter in November 1988 under the Special Marriage Act. For one and half months, the relationship was good. Thereafter the appellant and his mother wanted her to give the flat to them on ownership basis. They started torturing Sultana. They used to fix tape on her mouth and gave her electric shock after tying her legs and hands. They lived for a year in the rented flat and Sultana was assaulted during such stay. She lodged general diary. Thereafter the appellant 5 and his mother left the house and took a flat on rent at Picnic Garden on Kustia Road. They lived there for less than a year. There her daughter was kept under lock and key. Her daughter used to come to her and report that she had been assaulted. On 2nd October her daughter was burnt to death at Kustia Road house. At that time she was at Guntur. She was informed about the death by her brother. She left Guntur on 3rd October and came to Calcutta on 4th October and reported the matter to Tiljala Police Station. Police Officer recorded her statement and she signed thereon (Ext. 1/1 and Ext. 1/2). She handed over two letters written by her daughter, which were marked Ext.2 series. She had lodged general diary in November 1989. She deposed that she had been to Kustia Road House while Sultana was alive. Her son Rubi @ Rahamat Ali was present in the Kustia House on the date of occurrence.
In cross-examination, she stated that the appellant was a tenant in her house since 1985. The appellant had a love affair with Sultana, which culminated in marriage. A Moulabi had come to the marriage party. She did not attend the marriage party. The father of the appellant also did not attend the marriage party. She admitted that Rubi was not mentally alert. She admitted that the appellant was a Keralite Christian. She stated that she did not state in the FIR that the appellant used to give electric shock. She stated that there was a grill gate on the verandah of the Kustia House. There was a room after the verandah and there was another room beyond that room communicable through the front room. There was a bathroom and kitchen after the second room. There was a dinning table and chair in the second room. She was not aware whether there was any bedstead in the second room.
P.W.5, Sabana Hasmi is the elder sister of Sultana. She deposed that the appellant had married Sultana and used to reside on the first floor of their house. The appellant and his mother used to torture Sultana for demand of money and later they demanded the flat. Subsequently, appellant and his mother and Sultana left for a flat at Kustia House. Sultana used to be confined in that house under lock and key. Sultana used to report about the assault on her even in that 6 house and she used to take money from her mother at times. On 2.10.1990 the appellant told her that Sultana had caught fire from gas. Appellant took her to the hospital. On their way the appellant stated that Sultana had caught fire from a lamp as there was load-shedding in the locality. She saw Sultana in the hospital. Sultana stated her that she had a quarrel with the appellant and she had gone out and thereafter she came back. There was further quarrel between them and the appellant set her on fire. The doctor advised them to go outside and Sultana stated that she would talk to her again on the next day. She stated that she made a statement before the Magistrate.
In cross-examination, she stated that she met her mother on 4th October in the evening. The train was late on that day and so her mother came late. She did not accompany her mother to Thana. She was also cross-examined with regard to the embellishments in her deposition in respect of the allegations of torture upon Sultana by the appellant in the course of cross-examination.
P.W.9, Ruksana Zilhami is another sister of the victim. She was married in 1985 and her husband was posted at Mumbai as the Deputy Director of Apparel Export Promotion Council and subsequently they came to Kolkata as her husband was transferred. She deposed that the appellant had married Sultana out of love. After 1 and ½ months of the marriage the appellant and his mother demanded the flat. Over such issue the victim was tortured. Farida Ahmed, one of the tenants (P.W.6) informed them that Sultana was being tortured at the tenanted premises. She went there and found Sultana was tied and a tape was pasted on her mouth. The appellant was having a wire in his hand. She removed the tape from her month and Sultana stated that she was being tortured as she refused to go downstairs and demand the flat from her mother. They were in their house for one year and thereafter they went to a rented apartment at Kustia Road. One day she went to the house of her sister and found her sitting and crying. She was brutally beaten and blood was coming out from her ear. On 2nd October, 1990, she was in Madras when she got a telephonic message from her mother informing her that Sultana had expired. Immediately she told her 7 husband and they started for Calcutta and reached Calcutta on the next day. She heard from her brother Rubi and sister Sabana that the appellant had killed Sultana by pouring kerosene oil on her person.
In cross-examination, she stated that she was in Calcutta for about a year because her husband had gone to Kuwait in service. She stated that she was present at the time of marriage at the registration office. Her husband was posted at Kuwait. She was staying in Madras in a rented house. She did not state to Investigating Officer that the appellant's mother told her that had the marriage taken place in Kerala, they would have received Rs.2 to Rs.3 Lacs and proposed that the flat be given to the appellant. She was also cross-examined with regard to other embellishments relating to the torture of the victim by the appellant.
Apart from the aforesaid witnesses the prosecution has also relied on the evidence of the tenants and/or neighbours in and around 41A, Bright Street where the couple initially resided to prove the torture on the victim. They are P.W.4 (Monsur Rashid), P.W.6 (Farida Ahmed), P.W.7 (Dulari Begum) and P.W.11 (Femida Safi). All of them have spoken about the torture on the victim in similar lines. However, all the witnesses have been cross-examined with regard to the improvements and/or embellishments in the evidence vis-à-vis their earlier statements to the police officer relating to the alleged torture. P.W.4, 6 and 11 have also admitted that they were the tenants under P.W.1.
Coming to the alleged incident, prosecution claimed that P.W.8, namely, Rahmat Ali @ Rubby @ Hasmi is an eyewitness to the incident. He is the brother of the victim. He deposed that the appellant had a quarrel with his sister. The appellant pushed his sister and asked her to get out of the home. He was given an apple by the appellant. The appellant had tied her with a rope at the kitchen. The appellant sprinkled kerosene oil and set her on fire with a matchstick. The appellant asker him to make his sister understand. He shouted. Many persons came and they asked the appellant to open the door. He was threatened by the 8 appellant, who opened the door. He was taken upstairs. He was also taken to Chittaranjan Hospital. His sister was lying under the sofa. Initially, he denied making statement to the Magistrate. Then, he stated that he made statement to the Magistrate.
In cross-examination, he stated that he used to sleep on the sofa. He was sitting on his bed and on turning his face, he found fire and shouted. Then many persons came. He saw fire first and then saw Sultana standing and thereafter she lay down on the sofa. Sultana was wearing a silk nighty. In the course of his deposition, the Trial Judge noted that the witness gave answers incoherently to both sides and in the course of cross-examination by the defence he stated laughing and when he was queried as to such strange conduct, he stated that he was confident of winning the case.
Apart from these witnesses, P.W.2, 3, 13 and 15 are the landlord of the Kustia Road House where the incident happened and his relatives. P.W.2, Bithi Ghosh is the cousin of the landlord of the house where the couple last resided. She deposed that she knew Sultana. About two years ago on a holiday she had been to the residence of her brother Ashutosh and had finished her lunch. Her brother Ashutosh came out of house shouting 'fire, fire'. She followed him and found fire coming out from the house of the appellant. On their request the appellant opened the door. Many people assembled there. She along with her elder brother and many others rushed inside and found Sultana had caught fire. Sultana lay on the floor. She put a bag on Sultana. They put out the fire. A taxi was called and Sultana was taken to hospital. They entered through the front gate of the house. On query, Sultana said that her husband did nothing. She cannot say how Sultana caught fire. Sultana was found in a front room which was neither a kitchen nor a bathroom.
P.W.3, Sadhan Kr. Adhikari is the brother of P.W.2 and the landlord of the rented premises at Kustia Road where the couple resided. He and his sister, P.W.13, namely, Chinu Adhikari were declared hostile. In cross- 9 examination PW 3 stated that Jacob and his wife used to go out in the morning and come back in the evening. P.W. 13 in her cross-examination stated that although she could not remember whether electricity was off but at the time the room was dark.
PW 15, Asutosh Adhikari, was the brother of PW 2 and cousin of the landlord, PW 3. He stated that the appellant was a tenant under PW 3 in the ground floor of the premises at Kustia Road. On 2nd October, 1990, when he was finishing his lunch he found fire in the room of the appellant and he shouted 'fire fire' and rushed out. All his sisters including PW 2 came out of the house. They rushed to the house of the appellant. The grill gate was locked from inside. The appellant opened the grill gate on their request. They entered the house and found that the victim had caught fire. PW 2 placed something like a bag on the victim. He shouted to local people to call taxi. The appellant lifted the victim into the taxi. He found a boy, he later came to know to be the brother of Sultana, was moving here and there inside the house. In cross- examination he stated that he did not remember if the area was without electric current at that time but the room was dark.
These are the witnesses of facts.
PW 14 was the Medical Officer who was attached to the Emergency Department of Calcutta National Medical College and Hospital and had admitted the victim. He was in duty in the Emergency Department on 2nd October, 1990 at 2:55 PM. He stated that he admitted one Christian female patient, who was brought by Sam Jacob with a history of about 70 to 80 per cent burn injury. He found that the victim was conscious. According to the statements of the patient and party, it was stated that the victim had caught fire as she was going to light a lamp due to load shedding. There is no note in his report that the patient was in a position to make such a statement at the time of examination. In cross-examination, he stated that the word 'party' means the appellant. He stated that the patient could speak and make a 10 statement to him. The patient also told him that her husband had no role in the matter.
PW 22 is a doctor under whom the victim was admitted in hospital. He found extensive burn injuries on the victim. He stated that she was fully conscious. He, however, could not state the circumstance in which the victim had made the aforesaid statement. In cross-examination he admitted that in the report of the Emergency Department it is reflected that the patient suddenly caught fire while she was going to light a lamp due to load shedding as stated by the patient and the party.
PW 18 is the Autopsy Surgeon who held post-mortem over the dead body of the victim. He opined that the death was due to effects of extensive burn injuries, which are anti-mortem. In cross-examination, he stated that it is not possible whether the burn is homicidal, suicidal or accidental. If the body is examined within 72 hours, the odour of kerosene oil may be detected.
PWs. 16 and 17 produced the bed-head tickets of the treatment of the victim at Calcutta National Medical College and Hospital (Exbt. 9) and SSKM Hospital (Exbt. 10) respectively.
PW 20 is the Executive Magistrate who held inquest over the dead body of the victim at SSKM Hospital. He proved the inquest report and his signature thereon (Exbts. 12 and 12/1).
PW 24 is the Judicial Magistrate who recorded the statements of PWs.. 5 and 8 in the course of investigation.
PW 19 stated that police officer conducted search at the place of occurrence and seized various articles including the jerikhen of kerosene.
PW 23 is the Police Officer who received the written statement from PWs. 1 and 2 as a formal FIR.
PW 25 is the Investigating Officer in the instant case.
11The defence examined one witness. DW 1 who produced the records from Calcutta National Medical College and Hospital and proved the injury report (Exbt. A) of the appellant who was treated at the said hospital with burn injuries.
From the aforesaid evidence, it appears that the appellant who was a tenant in the first floor of the premises owned by PW 1 had fallen in love with the victim, Sultana, who was the daughter of the landlady. Such affair culminated in their marriage under the Special Marriage Act. The families of both the parities, however, were not happy with the marriage as it was an inter-religious one. PW 1 admitted that she did not attend the marriage. There is evidence on record that the father of the appellant was also absent during the marriage. It has been contended by the appellant that pressure was exerted upon him to convert to Islam and over such issue of inter-religious marriage, there was stress in the matrimonial life of the couple. As a result, he left the tenanted premises of his mother-in-law and took up residence in a different locality in Kustia as a tenant under PW 3. On the other hand, the prosecution has sought to lead evidence to show that over demands of dowry like money and ornaments and documents for transfer of the tenanted flat to the appellant on ownership basis there was continuous torture upon the victim. She was subjected to physical torture by the appellant. Upon protest, the appellant and his mother shifted their residence to Kustia but the torture on the victim continued till she was set on fire by the appellant on the fateful day.
I have considered the evidence of the relations of the victim namely, PWs. 1, 5 and 9 as well as the tenants and neighbours of PW 1, namely, PWs. 4, 6, 7 and 11 in great detail. I find that the evidence of the said witnesses suffer from gross embellishments with regard to the torture meted out to the victim. PW 25 in cross examination admitted that the macabre picture of the torture painted by the said witnesses with regard to the torture on the victim tape on her mouth and giving electric shocks after tying her legs and hands 12 are the gross embellishments stated for the first in Court. Furthermore, the evidence with regard to torture of the victim at Kustia house are hardly convincing. On the one hand, it is contended that the victim was kept locked in the house while, on the other hand, it is claimed that she used to go out and complaint about the torture to her mother, PW 1. This version is also improbabilised by the evidence of PW 3, the landlord of the Kustia Road premises who stated that the appellant and the victim used to go out everyday in the morning and return at night. None of the neighbouring witnesses, namely PWs. 2, 3, 13 and 15 have spoken of any strained between the couple while they stayed at Kustia.
The most important pieces of evidence in this regard are the letters written by the victim (Exbt. 2) refers to her mother. I have read the said letters. The letters speak of disturbance in the matrimonial life of the couple as the parents on both the sides refused to accept them. The appellant was a student at that point of time and such opposition from the elders created an uncertainty in their lives which created trauma in the mind of the victim. The letters express depression of the victim on such score as the appellant was unable to stand up against such adversities to the expectation of the victim. However, there is not a single whisper in the letters that the flat had been demanded by the appellant or his family members in lieu of marriage. There are some references to financial stringency owing to the opposition of the parents of the appellant to the marriage and the inability of the appellant to stand up against it but there is no clear demand of dowry by him to PW 1. Hence, I am of the view that the evidence of record does not establish a case that the victim was subjected to torture for or in connection with the dowry or with regard to any demand of transfer of flat in favour of the appellant in the instant case. On the other hand, it appears that the agony of the victim arose due to lack of support including financial support by the respective families to the couple as they had entered into an unwelcome inter-religious matrimony 13 creating of poignant situation threatened the very survival of the marriage itself.
The unfortunate demise of the victim on 2nd October, 2010 is to be seen in the perspective of the aforesaid trials and tribulations under which they had to undergo due of the disharmony between the families over the inter-religious marriage itself.
With regard to the cause of death of the victim, prosecution has relied on the evidence of PW 6, a purported eyewitness and the dying declaration of the victim to PW 5 to establish that the appellant had murdered the victim. Evidence of PW 8, a mentally weak boy must be analyzed with due care and circumspection. PW 8 during his deposition beheaved in the most unnatural and abnormal manner. Hence, I have examined his evidence with utmost care and caution and sought to elicit the grain of truth from his deposition.
Analysis of his evidence as a whole in the light of the topography of the tenancy shows that the incident occurred in the kitchen while PW 8 was staying in the front room on the Sofa. He heard a commotion and found her sister burning. Therefore, the version of PW 8 that he saw the appellant pour kerosene oil on his sister and set her on fire with a match stick appears to be a figment of his imagination as he was not in the kitchen where the victim caught fire. Consequently, he could not have deposed as to how the victim caught her. With regard to dying declaration made to PW 5, I find it difficult to accept her version on such score as this vital piece of information is singularly absent in the first information report or in the deposition of PW 1. Admittedly, PW 1 met his daughter, PW 5, on arrival from Guntur and prior to lodging FIR. If that were so, PW 5 would have narrated such fact to her mother, PW 1. However, PW 1 is silent in her deposition in Court or in the FIR with regard to the dying declaration made to PW 5. Absence of corroboration of PW 5 in the matter of the victim making dying declaration to her against her appellant in 14 the evidence of her mother, PW 1, renders the aforesaid circumstance high reliable and I am loath to rely on such piece of evidence.
This brings me to the exonerative dying declaration purportedly made by the victim to PWs 2 and 14. It has been strenuously argued by the prosecution that those dying declarations are unreliable as they were made in the presence of the appellant who naturally exerted influence in his wife not to implicate him.
Prosecution has also relied on the statement of PW 10, the Electric Inspector, to show that the so-called dying declarations are untrue as there was no load shedding in the locality necessitating the victim to light a lamp and therefore, the said dying declarations ought not to be relied upon. This plea has been rebutted by the learned Amicus Curiae. He submitted that in cross-examination of PW 10 admitted that there may be interruption in electric supply for reasons other than load shedding.
Reference is also made to the evidence of neighbours PWs. 3 and 15 that the room was dark at the time of occurrence is probablising that the fact that the victim had lit a lamp at the time of incident.
I have examined the dying declarations in the background of the rival perspective as we said above. It was specifically stated in the dying declaration that the victim accidentally caught fire while lighting a lamp during load shedding. Although, PW 8 categorically rules out a case of load shedding in the locality at that time. Although, PW 10 categorically rules out a case of load shedding in the locality at that time. On the other hand, PWs. 3 and 15 claimed that the room was dark at the time of occurrence. However, none of those witnesses stated that there was interruption of electric supply in their locality for any reason other than load shedding. It is also to be borne in mind that the appellant was present at that point of time when the free will of the victim cannot, therefore, be ruled out and hence I am of the opinion that the 15 aforesaid exonerative dying declarations do not reflect the correct state of affairs in the instant case.
Reliance has been placed on number of authorities, namely, AIR 2010 SC 408, AIR 2007 SC 2666 and AIR 2009 SC 1059 in support of the fact that if there are contradictory dying declarations, benefit of the doubt had be extended to the appellant.
I have examined the ratios laid down in the aforesaid decisions. In all the authorities the Apex Court unequivocally stated that a dying declaration of the victim is the best evidence provided it is a truthful and a reliable one.
For the reasons recorded above, I am of the opinion that none of the dying declarations in the instant case, namely, the incriminating one before P.W. 5, an interested witness, which is not corroborated by her mother/informant P.W. 1 in the FIR or in her deposition on the exonerative once made to P.W. 2 or P.W. 14 in the presence of the appellant can be said to be relied upon. The question of extending the benefit of doubt to the appellant on the strength of contradictory dying declarations does not arise as the appellant is not answering a charge under Section 302 of the Indian Penal Code as in the aforesaid reported decisions. While in a case involving charge under Section 302 of the Indian Penal Code it is the duty of the prosecution that the death of the victim is homicidal, the prosecution in a charge under Section 304B of the Indian Penal Code is called upon only to establish that the death of the housewife occurred under unnatural circumstances within 7 years of her marriage. Reference in this regard PW 9 deposed that she had gone to the Kustia Road house and found that the victim had been assaulted and blood was coming out of her ears. Evidence of PW 9 in this regard must be taken with a pinch of salt. Firstly, the aforesaid version is an improvement/embellishment when compared to her earlier statement to the police. Admittedly, she was married to a man who was in a transferable job. Hence, it is highly unlikely that she was in Kolkata as claimed by her. In cross- examination, she admits that she was residing at Madras with her children in a 16 rented flat while her husband was at Kuwait at the time of occurrence. Furthermore, she has not stated the date on which she visited the Kustia Road house and saw her sister in an injured condition. Strangely enough, she did not narrate this incident to anyone including her mother (PW 9) and no complaint was lodged over such incident. Hence, I am unwilling to rely on her deposition which suffers from various improbabilities and contradictions.
On the other hand, the conduct of PW 1 leaving behind her mentally weak son (PW 8) to the custody of the appellant and Sultana gives an impression that she had confidence in her son-in-law that he will take due care of the body. Such behaviour of PW 1 improbabilises the plea of continuous torture on the victim by the appellant. Had it been so, I doubt whether PW 1 would have been confident to leave behind her son in the custody of her abusive and violent son-in-law.
It is not the duty of the prosecution to prove that the victim was murdered in such case. Hence, even if I discount the dying declaration made to P.W. 5, it is undeniable that victim died due to burn injuries under unnatural circumstances within 7 years' of her marriage however in order to bring home the charge under Section 304B of the Indian Penal Code the prosecution is saddled with an additional duty to show that soon before her death she was subjected to cruelty or harassment for or in connection with death.
I have already extensively analyzed the evidence on record and I find particularly from the letters written by the victim to her mother, exbt. 2 series, that the turbulence in the short matrimonial life of the victim was due to the lack of partial approval or support on the score that they belonged to different religion. The mother of the victim refused to attend the marriage. It has been argued by the appellant that pressure was exerted upon him to convert to Islam. Although, the marriage was solemnized under the Special Marriage Act. I note that a Moulabi was present in the course of marriage. Such circumstances, in 17 fact, probabilizes the defence plea of attempted converis. The aforesaid circumstances also probabilises the defence plea that the shift of residence of the appellant from the residence of P.W. 1 to Kustia Road was due to pressure exerted upon him to convert to Islam. It is true that the relations of the victim and tenants/neighbours of P.W. 1 have spoken about physical and mental cruelty on the victim. No such grievance has been expressed by the victim herself in the letters written to her mother as aforesaid. The depression of the victim as reflected in these demands of dowry and transfer of the tenanted flat to the appellant. Even the general diary lodged P.W. 1 does not refer to dowry demands communications was due to inability of the appellant who was a student at that time with meagre income to stand up against the opposition to their marriage from his parents and the lack of adequate financial and social security so as to enable the couple to live with dignity.
In these circumstances, I am of the opinion that the prosecution has failed to establish beyond reasonable doubt that the victim was subjected to cruelty for or in connection with demands of dowry during her matrimonial life. I am further to ratify to arrive at such conclusion as none of the neighbours of the couple at Kustia Road where they lived for about a year prior to the incident have spoken about torture on the victim. Hence, there is no evidence that the victim was subjected to cruelty soon before her unnatural death for or in connection with dowry.
For the aforesaid reasons, I am of the opinion that the prosecution has been unable to prove the charges under Section 498A and 304B of the Indian Penal Code beyond reasonable doubt. Conviction and sentence of the appellant are set aside.
The appeal is accordingly allowed. The appellant shall be discharged from his bail bonds after six months from date in view of Section 437 of he Code of Criminal Procedure.
18
Copy of the judgement along with LCR be sent down to the trial Court at once for necessary compliance.
I record my appreciation for the able assistance rendered by Mr. Kabir as amicus curiae to this Court for disposing the appeal.
Copy of the judgment along with L.C.R. be sent down to the trial court at once.
Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
(Joymalya Bagchi, J.) I agree.
(Rajarshi Bharadwaj, J.)