Gauhati High Court
Kanak Das vs The State Of Assam on 5 March, 2020
Equivalent citations: AIRONLINE 2020 GAU 556
Author: Ajit Borthakur
Bench: Ajit Borthakur
Page No.# 1/8
GAHC010163872010
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A. 33/2010
1:KANAK DAS
S/O LATE ANANDA DAS, VILL. MADULIJHAR, P.S. and P.O. BARPETA, DIST.
BARPETA, ASSAM.
VERSUS
1:THE STATE OF ASSAM
Advocate for the Petitioner : MR.H DEKA
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE AJIT BORTHAKUR
Date : 05-03-2020
JUDGMENT AND ORDER (ORAL)
Heard Mr. AK Dutta, learned counsel for the appellant/accused. Also heard Mr. BJ Dutta, learned Addl.Public Prosecutor, Assam appearing on behalf of the State/respondent.
2. This appeal under Section 374 Cr.P.C. is directed against the Judgment and Order, dated 07.01.2020, passed by the learned Addl. Sessions Judge, F.T.C., Barpeta in Sessions Page No.# 2/8 Case No. 169/2006, whereby the accused/appellant is convicted under Section 304B of the IPC and sentenced to undergo rigorous imprisonment for 7(seven) years.
3. One Ramesh Ch. Haloi, father of the deceased Jamini Haloi, lodged an FIR before the In-charge of Howly Police Outpost under Barpeta P.S., inter-alia, alleging that on 11.05.2004, the appellant/accused married his said daughter as per Hindu rites and rituals and after marriage, both of them started their conjugal life at the appellant/accused's house. After some days, however, differences crept up between them out of making demand for dowry by the appellant/ accused resulting in continued mental and physical tortures on the victim, as reported by her. On 05.08.2004 at about 12 noon, they came to know that their daughter Jamini committed suicide by hanging on the previous night of 04.08.2004 and after conducting post-mortem examination, preparation was made at the matrimonial home for her cremation.
4. Based on the above FIR, the I/C, Howly O.P. made G.D. Entry vide Howly O.P. G.D. Entry No. 192, dated 10.08.2004 and on being forwarded, registered as Barpeta P.S. Case No. 398/2004 under Sections 304B/34 of the IPC. After completion of investigation, the police submitted charge-sheet under Sections 306/34 of the IPC against the appellant/accused and 2(two) others, and thereafter, a G.R. No. 980/2004 was registered in the Court of learned CJM, Barpeta and then the case was committed to the Court of learned Sessions Judge, Barpeta for trial, where it was registered as Sessions Case No. 169/2006.
5. The learned Sessions Judge, on consideration of the materials on the case diary and hearing the learned counsel for both sides, framed charges under Sections 302/34 of the IPC. The charges were being read-over and explained to the appellant/accused, he pleaded not Page No.# 3/8 guilty and claimed to be tried. However, later on, after recording the statement under Section 313 Cr.P.C., charges were amended/ altered to Sections 304B/34 of the IPC. The charges were again read over and explained to the accused, to which he pleaded not guilty and claimed to be tried.
6. In order to prove the charges, the prosecution examined as many as 11(eleven) witnesses including one court witness, the autopsy surgeon and the investigating officer. The accused/appellant cross-examined the witnesses. After closing the evidence of the prosecution side, 313 Cr.P.C. statement was recorded. The accused pleaded innocence and declined to examine any witness in defence. After hearing the arguments of both sides and appreciating the evidence on record, the learned Sessions Judge convicted and sentenced the appellant/accused, as stated above.
7. Mr. A.K. Sharma, learned counsel for the accused/appellant submits that the prosecution has failed to examine any witness, who had witnessed the alleged occurrence. Mr. Sharma further submits that there is no evidence on record to show that the deceased was subjected to torture in any form in connection with demand of dowry except making some general statements by the interested witnesses viz. P.Ws.- 2, 3 & 8, without any evidence of independent witness. Mr. Sharma also submits that although the alleged occurrence had taken place on 04.08.2004, night, the FIR vide Ext-2 was lodged after 6 days of the occurrence, that is, on 10.08.2004 without explaining the reason for delay. According to Mr. Sharma, as there was no evidence regarding the demand for dowry before her death, applying the ratio of the Judgment rendered in the case of Sham Lal V. State of Haryana , reported in (1997) 9 SCC 759, the case cannot come within the purview of Section 304B of the IPC. Additionally, in support of this argument, Mr. Sharma submits that although the Page No.# 4/8 medical evidence of P.W-1 shows that there was only one ligature mark on the neck of the victim, at the same time, it indicates that no physical cruelty was perpetrated on her immediately before her death.
8. Per contra, Mr. B.J. Dutta, learned Addl. Public Prosecutor appearing for the State/respondent submits that the incident of commission of suicide by the deceased having been taken place within a period of 2 months and 21 days of her marriage, as it is specifically revealed in the evidence, oral and documentary and in absence of evidence to the contrary, as such, a legal presumption under Section 113-B of the Evidence Act can be taken against the appellant/accused, holding that it was her husband the accused/appellant, who was responsible for the death of the deceased- his wife.
9. I have considered the above arguments advanced by the learned counsel for both the sides and also perused record.
Now let us take a look in the evidence on record.
10. P.W.-1 Dr. Panchanan Uzir, the Medical Officer, who conducted the post-mortem examination on the body of the deceased on 05.08.2004, on police requisition, found the following injuries on the body of the victim:
"External App: A young body not emaciated, not decomposed. Rigor mortis; present. On examination an oblique interrupted ligature mark is present high up in the neck. On dissection the under surface of the skin is parchment like. On examination of abdomen: mouth is slightly open with the tip of the tongue protruded through the lips. On examination of stomach is found normal contained with partial digested food materials. More detailed description of injury:- An oblique interrupted ligature mark is present high up in the neck between the chin and the larynx. The base of the mark is pale, hard and parchment like. On dissection the surface of under lying subcutaneous tissue is white, hard and glistening. Tip of the tongue is Page No.# 5/8 protruded through the lips."
11. The Doctor ( P.W-1) held the opinion that the cause of death of the deceased was due to asphyxia, as a result of hanging. The doctor recognized Ext-1, the post- mortem report. The post-mortem report shows that except the ligature mark, there was no injury on other parts of the body and duration of death of the deceased was more than 3/4 hours.
12. P.W.-2 Ramesh Ch. Haloi, the father of the deceased, stated, inter-alia, that he came to know about the incident from his nephew one Tapan. According to him, the accused did not inform him about the death of his daughter, Jamini Haloi, who was his wife, and the post- mortem examination was done without informing them (her parents) and therefore, it was suspected that the cause of death of the deceased was nothing but an act of murder on demand of dowry, as the deceased occasionally reported them about the demand made by the accused.
13. P.W-3, Arati Haloi is the mother of the deceased and P.W.-8 Ms Himaree Haloi is the sister of the deceased. PW-3 stated, inter-alia, that her deceased daughter reported her about the cruelty meted out to her by the appellant/ accused over not meeting his demand of dowry articles and her nephew Tapan Das informed her about commission of suicide by her daughter. According to P.W.-8, before the death of her sister, she went to the house of the accused, that is, her brother-in-law and at that time, she witnessed quarrels between her deceased sister and brother-in-law over demand of dowry and other articles such as cloths given in her marriage.
14. P.W.-4, Tushar Kanti Mazumdar is the Gaon Burah and PW-5 Haragobinda Barman stood witness to the inquest held on the dead body of Jamini Haloi and recognized as Ext-4. PW-6 Page No.# 6/8 Bhupen Das was a hearsay witness to the actual incident, but stood witness to the inquest vide Ext.4, the inquest report.
15. P.W.-7, Parijat Bhuyan, the Executive Magistrate, held the inquest on the body of the deceased and recognised Ext-4, the inquest report.
16. PW-8 Ms. Himashree Haloi is the younger sister of the deceased. According to her, deceased Jamini was married to the accused/appellant about 2 ½ months before her death and they frequently quarrelled over poor quality of cloths etc. given in marriage. She stayed at her home after about 1 ½ months of their marriage and returned after consoling her. She gave a statement vide Ext-5.
17. P.W-9, SI Ratan Bhuyan, the I.O., inter-alia, deposed to have received an FIR, on 05.08.2004, on the night of the occurrence from the accused/ appellant, whereupon U.D. Case No.42/2004 was registered and ASI Intaj Ali (PW-10) investigated into it and had done the initial process of causing inquest, port-mortem examination and recorded statements of witnesses etc. Thereafter only, the FIR vide Ext. 2, dated 10.08.2004, was received from the father of the deceased. He recognized Ext.6, the charge-sheet, Ext.-7, the extract copy of GD Entry and Ext.8, the GD Entry, dated 05.08.2004.
18. P.W.-10 SI Md. Intaj Ali, who conducted the preliminary investigation in connection with the UD case No.42/2004, submitted report. According to P.W.-10, during the course of preliminary investigation, he found the deceased hanging inside the house of the accused with a cotton chadar. He prepared the sketch map of the place of occurrence.
19. CW-1, Ms. Dipali Nath, the Bench Assistant of the Court of learned Judicial Magistrate 1st Class, Barpeta Ms. D Barman. She recognised the statement of Ms. Arati Haloi (PW-3), Page No.# 7/8 recorded under Section 164 Cr.P.C vide Ext.9 by the said court.
20. On careful scrutiny of the evidence, oral and documentary, it is crystal clear that the marriage between the accused appellant and the deceased Jamini was solemnised on 11.05.2004 observing Hindu rites and rituals. After their marriage, the deceased lived with her husband at her matrimonial home till she died in suspicious circumstances by hanging on the night of 04.08.2004 at a room. The accused appellant, immediately after her death himself lodged an FIR, on 05.08.2004 at around 9 am, vide Ext.10, whereupon Howly OP GD Entry No.85, dated 05.08.2004 was made and an U.D. Case being Barpeta P.S. UD Case No.42/2004, dated 06.08.2004, was registered and further, on completion of preliminary investigation, a report was submitted by PW-10, ASI Intaj Ali vide Ext.11 to the effect that her death was caused by asphyxia as a result of hanging as reported by PW-1 Dr. Panchanan Uzir, the autopsy surgeon, which led to registration of Barpeta PS Case No.398/2004 under Sections 304 A/34 of the IPC, where, after investigation the police laid a charge-sheet vide Ext.6 against the accused/appellant and 2(two) others.
21. From the evidence of PW-2 Ramesh Ch. Haloi (the father), PW-3 Ms. Arati Haloi (the mother), PW-4 Tushar Kanti Mazumdar (the Gaonburah) and PW-8 Ms. Himasri Haloi (the sister) of the deceased family, it transpires, as a whole, that after marriage, the accused/ appellant continued to subject his deceased wife to cruelty or harassment on demand pertaining to dowry leading to her death other than under normal circumstances at her matrimonial home, within 3(three) months of marriage.
22. Presumption under Sections 113 A and 113 B of the Evidence Act under such facts and circumstances, in the absence of any rebuttal evidence, it may legally be presumed that the Page No.# 8/8 deceased's husband/the accused appellant was responsible for her unnatural death beyond all reasonable doubt.
23. For the reasons stated above, this court finds no justifiable reason to interfere in the well-reasoned impugned judgment and order of conviction passed by the learned trial Court.
24. It is, however, noticed that the learned trial court omitted to give the benefit of set off under Section 428 Cr.P.C. for the period of imprisonment undergone by the accused appellant as under trial prisoner. Therefore, it is provided that the accused/appellant shall be granted the benefit of Section 428 Cr.PC..
24. Accordingly, the appeal stands dismissed.
Return the LCR.
JUDGE Comparing Assistant