Calcutta High Court (Appellete Side)
4. Joydeb Saha vs The State Of West Bengal on 23 July, 2019
Author: Asha Arora
Bench: Asha Arora
Form No.J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present:
The Hon'ble Justice Asha Arora
C.R.A. 26 of 2018
1. Buddhadeb Saha ... (in Jail)
2. Monmotho Saha
3. Smt. Pratima Saha ... (in Jail)
4. Joydeb Saha Appellants
versus
The State of West Bengal
For the Appellants : Mr. Arindam Jana, learned advocate
appears as Amicus Curiae.
For the State : Ms. Sukanya Bhattacharya, learned advocate,
Mr. Mirza Firoj Ahmed Begg, learned advocate.
Hearing concluded On: 23-07-2019.
Judgement On : 23-07-2019.
Asha Arora, J. :
1. This is yet another horrifying incident relating to dowry death of a young housewife whose life ended within a brief span of seven months of marriage.
2. The instant appeal has been preferred against the judgement and order of conviction and sentence dated 20th December, 2017 and 21st December, 2017 passed by the Additional Sessions Judge, 2nd Court, Katwa, Burdwan in Sessions Trial No. 13 of 2014 arising out of Sessions Case No. 56 of 2013 whereby the appellants were convicted for the offences punishable under sections 498A/304B/34 IPC and sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs.5,000/- each in default to suffer imprisonment for six months for the offence punishable under section 498A IPC and to suffer rigorous imprisonment for seven years each for the offence punishable under section 304B IPC. Both the sentences were ordered to run concurrently. By the judgement and order impugned one of the co-accused namely, Dasarath Ghosh was found not guilty of the aforesaid charges and was accordingly acquitted.
3. The facts in brief leading to this appeal may be summarised as follows :
4. On 19th September, 2011 the defacto complainant Uma Sankar Saha (PW-
1) lodged a written complaint at Ketugram P.S. stating that his niece Tuli Saha (since deceased) was under his care and custody since her childhood as she had lost her parents. On 24th February, 2011 the defacto complainant, uncle of the said Tuli Saha gave her in marriage to the appellant no.1 Buddhadeb Saha in accordance with the Hindu rites and customs. As per demand of the bridegroom's family, the defacto complainant gave cash of Rs.1,30,000/-, five bharis of gold ornaments and other articles at the time of marriage. It is further alleged that seven days after her marriage that is, after 'Astamangala', the accused persons/appellants being the husband, father-in-law, mother-in-law and brother-in-law of Tuli and one co-accused Dasarath Ghosh 'Dharmapita' of her husband started to torture her physically and mentally for bringing more cash amounting to Rs.1,00,000/- from her uncle. Tuli's uncle somehow managed to give Rs.60,000/- to the accused persons but they were not satisfied so they continued to torture her for the remaining amount of Rs.40,000/-. The defacto complainant and his relatives tried to settle the matter amicably but to no avail. On 16th September, 2011 at about 6 p.m. Tuli was assaulted by her husband and mother-in-law as they were not satisfied with the articles gifted by her uncle on the occasion of Durga Puja. That night Tuli informed about the incident to her uncle (PW-1) and his son Khagendra Nath Saha (PW-4) over phone. She was asked to wait till the next morning when her uncle would go to her matrimonial home to settle the matter but not being able to bear the torture, Tuli who was then pregnant committed suicide by consuming poison on the same night. On the basis of the aforesaid written complaint, Ketugram P.S. Case No. 250 of 2011 dated 19.09.2011 under sections 498A/304B IPC was initiated against the accused persons. Investigation culminated in the submission of the charge-sheet under sections 498A/304B/34 IPC and under sections 3/4 of Dowry Prohibition Act against the appellants herein and one co-accused named Dasarath Ghosh.
5. The trial court framed charges for the offences punishable under sections 498A/304B/34 IPC and under sections 3/4 of Dowry Prohibition Act against the accused persons. Being so arraigned, each of the accused pleaded not guilty to the indictment in consequence of which trial commenced. In course of trial prosecution examined eleven witnesses and relied upon several documents which were tendered in evidence.
6. Defence version is innocence and complete denial of the prosecution case.
From the tenor of cross-examination of the prosecution witnesses as well as from the examination of the accused Buddhadeb Saha under section 313 of the Code of Criminal Procedure it appears that the appellants sought to set up a defence that Tuli died due to ailment, not by consuming poison. No evidence was led by the accused in support of such defence.
7. On the basis of the evidence on record the trial court convicted the appellants and sentenced them as aforesaid while co-accused Dasarath Ghosh was acquitted of the charges levelled against him.
8. The point for determination is whether the conviction and sentence of the appellants is sustainable.
9. Mr. Arindam Jana, learned advocate appearing as amicus curiae submits that the alleged incident of 16th September, 2011 was over the issue of articles gifted on the occasion of Durga Puja. There was no demand for dowry. Mr. Jana contended that the articles gifted to the husband and in- laws of the bride do not come within the purview of dowry since gifts are given voluntarily without any demand. It is canvassed that there is no evidence to show that soon before her death, Tuli was subjected to cruelty or harassment by the accused persons for or in connection with any demand for dowry within the meaning of section 304B IPC. It is argued that at best it could be a case of abetment of suicide under section 306 IPC. It is pointed out that the alleged demand for cash of Rs.1,00,000/- was not made "soon before the death" of Tuli. Further submission is that prosecution could not show wherefrom the complainant had arranged for the cash amount which was allegedly given to the accused persons. Referring to the cross-examination of PW-1, Mr. Jana submits that no corroborative evidence could be produced in support of the complainant's assertion that by selling his land to Prabir Saha and Balaram Saha he procured cash of Rs.60,000/- which was given to the accused persons. No document in the nature of sale deed could be produced to show that land was sold to procure cash for satisfying the demand of accused. It is argued that the inquest report (exhibit-3) does not indicate that the witnesses to the inquest made any utterance regarding demand for dowry by the accused persons. It is contended that the financial status of the accused/appellants was better than that of the complainant so the story of demand for cash is not believable. Referring to the evidence of PW-9 Dr. N. Ghatak, Mr. Jana contended that since no poison was detected in the viscera of the deceased, the accused/appellants should get the benefit of doubt.
10. Per contra, learned advocate appearing for the State argued that the demand for cash was made soon before the death of Tuli as it transpires from the evidence of PW-1 and PW-4. Referring to the evidence of PW-4 it is pointed out that on 16th September, 2011 the accused persons asked Tuli to bring the remaining cash of Rs.40,000/- since they did not like the articles which were gifted on the occasion of Durga Puja. In the context that Tuli was subjected to harassment and cruelty in connection with demand for cash "soon before her death", reliance has been placed on the case of Kamesh Panjiyar Alias Kamlesh Panjiyar Versus State of Bihar reported in 2005 Supreme Court Cases (Cri) 511 and Arun Garg Versus State of Punjab and Another reported in (2004) 8 Supreme Court Cases 251. Reference has also been made to the case of Thakkan Jha and Others Versus State of Bihar reported in (2004) 13 Supreme Court Cases 348. Learned advocate for the State argued that the accused persons could not substantiate the plea that death of Tulsi occurred under normal circumstances due to ailment. According to the learned advocate for the State, the charges levelled against the appellants/accused have been proved beyond any shadow doubt and their conviction is justified.
11. It is not in dispute that the incident occurred in the matrimonial house of Tuli where she was residing with the appellants after her marriage to the appellant no.1. The evidence regarding the factum of marriage and the fact that Tuli resided with the appellants in the same house at the relevant time remained unchallenged in cross-examination. Through the evidence of PW-1, PW-2, PW-3 and PW-4 prosecution endeavoured to prove that Tuli was subjected to cruelty and harassment by the appellants over the issue of demand for more cash. PW-1 is the defacto complainant who is the uncle of Tuli. PW-2 is the brother-in-law of PW-1. PW-3 is a co-villager and friend of PW-1 and PW-4 is the cousin brother of Tuli. For the purpose of this appeal it may be useful to quote the evidence of PW-1 which is as follows :
"I gave marriage of Tuli Saha to Buddhadeb Saha of village Pandugram under P.S. Ketugram on 24.02.2011 according to Hindu rites and Custom. At the time of marriage I gave cash Rs. 1 Lakh 30 Thousand, Gold ornaments weighing about 5 vories and other "Dansamogris" to Buddhadeb Saha as dowry. After marriage Tuli Saha went to her matrimonial house and started to live there. The accused persons, just after marriage used to inflict torture upon Tuli Saha both physically and mentally on demand of further dowry of Rs. 1 Lakh. I came to know this fact of further demand of dowry from the mouth of Tuli Saha. The accused persons also asked Tuli Saha that she has to leave her matrimonial house in default of payment of said dowry by me. Then I again gave cash Rs.60,000/- to the accused person (Buddhadeb Saha) to meet the said further demand. I procured the said money by selling my landed property keeping in mind the better future of Tuli Saha. But the accused persons continued to torture Tuli Saha on demand of remaining amount of Rs. Forty Thousand (40,000/-). I told the fact of said torture upon Tuli Saha to my son and other relatives. My relatives tried to compromise the matter. But no fruitful result came. In the night of previous day of death of Tuli Saha, she called in my son's mobile and informed us about the said torture. She also informed us that in default of payment of remaining dowry the accused persons will kill her. Over phone we told Tuli Saha that we will go to her matrimonial house in the morning. On the next day morning myself and my son went to the matrimonial house of Tuli Saha. When we reached the matrimonial house of Tuli Saha we came to know from the village people that Tuli Saha consumed poison due to torture upon her by the accused persons. She had been shifted to Katwa hospital. Thereafter we came to Katwa hospital and found that Tuli Saha died. At that time of death of Tuli Saha was pregnant for three months."
Being quizzed in cross-examination PW-1 spontaneously and unhesitatingly stated that he procured the cash of Rs.1,30,000/- by selling paddy and he procured Rs.60,000/- by selling land to Prabir Saha and Balaram Saha. In his cross-examination PW-1 disclosed the source of the cash amount which was given to the accused as dowry. It has also surfaced in the cross-examination of PW-1 that Rs.60,000/- which was given to the accused persons after Tuli's marriage was procured by selling land. On query by the defence counsel in cross-examination PW-1 specifically mentioned the names of the two persons to whom the land was sold. There is no substance in the argument that the evidence of PW-1 in this regard cannot be relied upon since the aforesaid two persons named Prabir Saha and Balaram Saha have not been examined. We cannot lose sight of the fact that the names of these two persons emerged in the cross- examination of PW-1 in response to a query by the defence counsel. It is evident that PW-1 deposed naturally without any exaggeration. The evidence of PW-1 is in conformity with the FIR. This witness was extensively cross-examined but nothing could be elicited from the mouth of PW-1 to render his evidence untrustworthy. The evidence of PW-1 has been corroborated by PW-2, PW-3 and PW-4. These three witnesses testified regarding the factum of torture upon deceased Tuli by all the accused persons who demanded cash of Rs.1,00,000/- after Tuli's marriage. It transpires from the evidence of these witnesses that PW-1 somehow managed to give Rs.60,000/- to the accused persons but failed to meet their demand for the remaining amount of Rs.40,000/- so they continued to inflict torture upon Tuli. PW-3 is a co-villager and friend of PW-1. He claims to have heard from Tuli about the factum of demand for more cash by the accused persons. This witness stated that against the said demand Uma Sankar Saha (PW-1) gave Rs.60,000/- to the accused persons but failed to give the remaining amount as a result of which the accused persons continued to torture Tuli. No contradiction could be pointed out in the evidence of these witnesses in relation to their statement under section 161 CrPC. The evidence of these witnesses remained unscathed in cross-examination. PW-4 is another material witness whose evidence is quoted hereinbelow :
"Just after marriage all the accused persons used to torture upon Tuli Saha on demand of further dowry of Rs.1 Lakh.
As per said further demand we gave cash Rs.60,000/- to the accused persons.
Even after that dowry the accused persons continued their torture upon Tuli Saha as we could not give the remaining Rs.40,000/- to them.
When Tuli Saha used to visit our house at that time she told us about the torture upon her by the accused persons.
She also requested me to ask my father to give remaining to Rs.40,000/- to the accused persons to stop the torture.
Few months ahead of the death of Tuli we sent some garments at her matrimonial house on the occasion of Durga Puja.
On 16.09.11 the accused persons asked Tuli to bring the said remaining cash Rs.40,000/- from us on the pretext that they did not like which we had sent.
On 16.09.11 Tuli Saha rang me at about 7.30 p.m. and informed me that her husband and mother-in-law were assaulting her during the time of assaulting she was on the phone line.
They brought her down from the first floor to ground floor by assaulting her.
At that time my sister was crying.
At the relevant point of time my sister was pregnant for three months.
In the morning of the next date of the said incident someone of village Pandugram informed us over telephone that Tuli took poison and she was shifted Katwa S.D. hospital."
12. Curiously enough, the narration of the incident of 16th September, 2011 by PW-4 remained unchallenged in cross-examination. Not a single contradiction could be pointed out in the evidence of PW-4 with reference to his statement under section 161 CrPC. Nothing could be elicited in the cross-examination of PW-4 to render his evidence doubtful. The evidence of PW-4 inspires confidence and is beyond reproach. There is no merit in the argument that for want of corroboration by independent witnesses from the village of the accused persons, the evidence of the witnesses related to the deceased cannot be relied upon. It is well known that evidence relating to "dowry death" is generally confined within the four walls of the matrimonial house of the victim and the best evidence is that of the near and dear ones of the deceased. It is obvious that a newly married girl would not confide to the neighbouring people of her matrimonial house. She would naturally confide and narrate her sorrows to her near and dear ones. In the case in hand, Tuli would inform her uncle (PW-1) and cousin brother (PW4) about the torture perpetrated upon her in her matrimonial house. Her uncle (PW-1) had brought her up since the time of demise of her parents. She would also confide to her cousin brother (PW4) who is the son of PW-1 whom she had phoned on 16th September, 2011 narrating the incident of assault upon her by her husband and mother-in-law and informing him that the accused persons asked her to bring the remaining cash of Rs.40,000/- since they did not like the articles which were gifted on the occasion of Durga Puja.
13. The accused persons in vain sought to set up a futile plea by way of suggestion to the prosecution witnesses that Tuli died under normal circumstances due to illness and not by consuming poison. This plea could not be substantiated by any iota of evidence. Section 106 of the Indian Evidence Act provides that when any fact is specially within the knowledge of any person, the burden of proving that fact is upon him. It is not in dispute that Tuli was married to the appellant no.1 on 24th February, 2011. The fact that Tuli died in her matrimonial house within seven months of her marriage has not been denied. From the evidence of PW-9 Dr. N. Ghatak it transpires that no poison was found in the viscera sample of deceased which was received on 22nd February, 2012. PW-10 is the medical officer who held post-mortem examination over the deadbody of Tuli on 17th September, 2011. This witness testified in his evidence that on visceral examination "odour material with pungent smell was found in the stomach". PW-10 opined that if anyone takes poison, such kind of pungent smell may be found. PW-10 did not give any conclusive opinion as to the cause of death since the viscera was sent for chemical examination. Being quizzed in course of evidence, PW-10 admitted that if delay is caused in sending viscera sample for chemical examination, the poison might not be found. In the present case the viscera was received for chemical examination on 22nd February, 2012 that is, after five months. There is nothing on record to show that the viscera sample was preserved properly during the aforesaid period. Though no poison could be detected in the viscera sample of the deceased, the factual position of the case in hand substantiated by the evidence of the witnesses and the inquest report go to show that death of Tuli had occurred "otherwise than under normal circumstances". The inquest report lends credence to the prosecution case as it appears therefrom that death of Tuli was caused by consuming poison. At the time of inquest it was noted that froth was coming out from the mouth and nose of the deceased. The expression "normal circumstances" apparently means natural death. In other words, the expression "otherwise than under normal circumstances" means death not being in the usual course but apparently under suspicious circumstances. In the case of Bhupendra Versus State of Madhya Pradesh reported in 2013 (4) Crimes 480 (Supreme Court) it was held that chemical examination of viscera is not mandatory in every case of a dowry death. For the purpose of section 304B IPC mere fact of an unnatural death is sufficient to invite a presumption under section 113B of the Evidence Act. The relevant paragraph 26 of the judgement in Bhupendra's case (supra) is quoted hereinbelow :
"26. These decisions clearly bring out that a chemical examination of the viscera is not mandatory in every case of a dowry death; even when a viscera report is sought for, its absence is not necessarily fatal to the case of the prosecution when an unnatural death punishable under Section 304-B of the IPC or under Section 306 of the IPC takes place; in a case of an unnatural death inviting Section 304-B of the IPC (read with the presumption under Section 113-B of the Evidence Act, 1872) or Section 306 of the IPC (read with the presumption under Section 113-A of the Evidence Act, 1872) as long as there is evidence of poisoning, identification of the poison may not be absolutely necessary."
Reverting to the case in hand, from the evidence on record it is clear that death of Tuli had occurred otherwise than under normal circumstances.
14. There is no force in the argument that prosecution case is doubtful since the witnesses who were present at the time of inquest did not state that Tuli was subjected to cruelty and harassment for dowry demand. Section 174 CrPC has a very limited scope. The object of the proceeding under section 174 CrPC is merely to ascertain whether a person died under suspicious circumstances or an unnatural death and if so, what is the apparent cause of death. The questions regarding details of the incident and the statement of witnesses to the inquest are alien to the ambit and scope of the proceedings under Section 174 CrPC.
15. The evidence of the witnesses hereinbefore discussed proves that there was further demand for cash of Rs.1,00,000/- just after the marriage of Tuli and the accused persons would inflict torture upon her for bringing the said amount. Tuli's uncle (PW-1) managed to give cash of Rs.60,000/- to the appellant no.1 but the torture continued since the remaining amount of Rs.40,000/- was not given. It has been convincingly proved by credible evidence that Tuli was assaulted by her husband and mother-in-law on 16th September, 2011 over the issue of the remaining amount of Rs.40,000/-. In Arun Garg's case (supra) the appellant-husband of deceased had been demanding more dowry after the marriage which took place on 25th February, 1996, about which deceased having informed her father on telephone on 10th April, 1996, further dowry had been given on 21st April, 1996 but demand for more dowry made in July 1998 remained unfulfilled so the appellant and his family members continued to harass the deceased and on 26th March, 1999 deceased again made a telephonic call to her father informing him that her husband and in-laws were conspiring to kill her whereafter on 28th March, 1999 deceased was admitted in hospital in serious condition and she died on 30th March, 1999. The cause of death was found to be intake of poisonous substance. On facts it was held that the ingredients of section 304B were satisfied so the presumption under section 113B of Evidence Act arises which though rebuttable could not be rebutted by the appellant. It was further held in the said case that even without the aid of section 113B of Evidence Act prosecution proved its case and conviction under section 304B was upheld. Reverting to the case in hand, deceased Tuli lived her marital life only for seven months. Just after her marriage the accused/appellants demanded more cash of Rs.1,00,000/-. PW-1 the uncle of the deceased somehow managed to give them Rs.60,000/- but torture upon Tuli continued on account of the unfulfilled demand for the remaining amount of Rs.40,000/-. It is clear that the torture and harassment meted out to Tuli was continuous without any break till the incident of 16th September, 2011 culminating in her unfortunate death. In the case of Thakkan Jha and Others Versus State of Bihar reported in (2004) 13 Supreme Court Cases 348 it was held that no presumption under section 113B of the Evidence Act would be drawn against the accused if it is shown that after the alleged demand, cruelty or harassment the dispute stood resolved and there was no evidence of cruelty and harassment thereafter. It was observed that the expression "soon before" is not synonymous with the term "immediately before". The said term would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question that is, there must be existence of a proximate and live link between the two. The determination of the period which can come within the term "soon before" is left to be determined by the courts depending upon the facts and circumstances of each case. There is no straitjacket formula that can be laid down by fixing any time limit in this regard. In the case in hand, the three essential ingredients of section 304B IPC having been established by cogent and convincing evidence hereinabove discussed, the presumption under section 113B of the Evidence Act arises which could not be rebutted by the appellants.
16. There is no force in the argument that at best the offence of abetment of suicide may be applicable to the facts of the present case. In this context it may be profitable to refer to paragraphs 32 and 33 of the judgement of the Supreme Court in Bhupendra's case (supra) quoted hereinbelow :
"32. The second contention is also without any substance. In Satvir Singh and Others v. State of Punjab and Another, (2001) 8 SCC 633 this Court drew a distinction between Section 306 of the IPC and Section 304-B of the IPC in the following words:-
"Section 306 IPC when read with Section 113-A of the Evidence Act has only enabled the court to punish a husband or his relative who subjected a woman to cruelty (as envisaged in Section 498-A IPC) if such woman committed suicide within 7 years of her marriage. It is immaterial for Section 306 IPC whether the cruelty or harassment was caused "soon before her death" or earlier. If it was caused "soon before her death" the special provision in Section 304-B IPC would be invocable, otherwise resort can be made to Section 306 IPC."
33. It was held that Section 306 of the IPC is wide enough to take care of an offence under Section 304-B also. However, an offence under Section 304-B of the IPC has been made a far more serious offence with imposition of a minimum period of seven years imprisonment with the sentence going upto imprisonment for life. Considering the gravity of the offence it is treated separately from an offence punishable under Section 306 of the IPC. On this basis, this Court rejected the contention that if a dowry related death is a case of suicide it would not fall within the purview of Section 304-B of the IPC at all. Reliance in this regard was placed on Shanti and Another v. State of Haryana, (1991) 1 SCC 371 and Kans Raj v. State of Punjab and Others, (2000) 5 SCC 207 wherein this Court held that a suicide is one of the modes of death falling within the ambit of Section 304-B of the IPC."
17. For the reasons discussed, I unhesitatingly hold that the impugned judgement and order of conviction and sentence passed by the trial court warrant no interference.
18. Before parting with this matter, I record my appreciation for the able assistance rendered by Mr. Arindam Jana as the amicus curiae.
19. The appeal is accordingly dismissed.
20. Appellant nos. 2 and 4 who are on bail shall surrender before the trial court within one month from this date to serve out the sentence in default of which the trial court shall take appropriate steps against the appellants for execution of the sentence.
21. Let a copy of this judgement along with the lower court records be sent to the trial court forthwith.
22. Urgent photostat certified copy of this judgement, if applied for, be given to the applicant upon compliance of requisite formalities.
( ASHA ARORA, J. ) dc.