Calcutta High Court (Appellete Side)
In Re : Mintu Mia vs State (2002) 6 Scc 7 on 6 June, 2013
Author: Toufique Uddin
Bench: Toufique Uddin
06/06/2013
CRA No. 807 of 2008
In re : Mintu Mia
... Petitioner
Mr. Subir Banerjee
Mr. Jayanta Banerjee
Mrs. Rukmini Basu Roy
... For the appellant
Ms. Sreyashi Biswas
... For the State
This appeal arose out of judgment and order dated
29.11.2008& 1.12.2008 passed by the learned Additional Sessions Judge, 3rd Fast Track Court, Sadar, Coochbehar in Sessions Case No. 143/06 under Section 498A/304B IPC thereby convicting the appellants and sentencing them accordingly.
In the background of this appeal the fact in a nutshell is that one Md. Nazrul Mia of village Nakkati, P. S. Kotwali lodged a written complaint on 14.3.06 that his daughter Noornehar Khatoon was married to one Mintu Rahaman of Cooch Behar Sahityasabha Lane, P.S. Kotwali on 21st April, 2005. During marriage he paid Rs. 1 lac in cash and three tolas of gold ornaments. After marriage his daughter was mercilessly assaulted by her husband and other inmates of her matrimonial house. They pressurized her to fetch further money of Rs. 50,000/-. Her parents-in-law, nanad and husband jointly used to inflict torture upon her physically and mentally. Before five months of the incident they drove her out of their house after assaulting but the complainant's relations and neighbours settled the matter after discussion with the inmates of his daughters-in-law's house. He also stated that before one month of the incident the mother-in-law and her nanad assaulted her mercilessly and dragged her by rope and threatened to kill her. On hearing her cry, the neighbours rushed to the spot and saved her. Thereafter, her husband came to the house and assaulted her with his waist belt. On 13.3.2006, at about 3 p.m. when after cooking she was sitting in her bedroom, her husband, who is a maruti van driver, came to her room alongwith her father-in-law, mother-in-law, nanad. They gagged her mouth by cloth and poured kerosene oil on her body and set her on fire. She was 60% burnt when the neighbours took her to the hospital. A complaint was lodged.
On the basis of written complaint the Police completed investigation and submitted charge-sheet against the accused persons under Section 498A/304B IPC.
The case was committed before the learned court of sessions and thereafter the learned trial court framed charges under Section 498A/304B IPC against the accused persons.
The contents of the charges were read over and explained to them who pleaded not guilty and claimed to be tried.
To contest this case the prosecution examined as many as 17 witnesses while the defence side examined none. However, the accused persons were examined under Section 313 of the Code of Criminal Procedure.
The defence case as appeared from the trend of cross- examination and replies given by the accused persons at the time of examination under Section 313 of the Code of Criminal Procedure is denial of offence with a plea of innocence.
On trial the learned court below convicted the present appellants by the impugned judgment.
It is to be seen if the impugned judgment suffers from any material irregularity and calls for any interference or not.
Section 304B and Section 498A IPC read as under:
Section 498A. Husband or relative of husband of a woman subjecting her to cruelty - Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation: For the purpose of this section, "cruelty" means -
(a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman, or,
(b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
Section 304B. Dowry Death - (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Explanation - For the purpose of this sub-section, "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 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.
The learned counsel for the appellant argued mainly inter alia that the i) doctor's evidence is different in nature, ii) the dying declaration could not be accepted due to various infirmities, iii) in evidence the father of the deceased have a volt face and iv) the evidence of PWs 10 and 11 are against interest of the prosecution.
On the other hand the learned counsel for the State argued that there is no scope to interfere with the impugned judgment passed by the learned court below.
To appreciate the case from a better angle some relevant pieces of evidence are required to be noted here.
The complaint was lodged by the Md. Nazrul Mia, the father of the victim Noornehar Khatoon. Admittedly, she was married to Mintu Mia, son of Mustafa of Coochbehar Sahityasabha Lane under Kotwali P.S. The complaint shows that at the time of marriage he paid Rs. 1 lac in cash with gold ornaments as dowry. But after marriage his daughter was subjected to physical torture on the ground of non-bringing of further sum of Rs. 50000/-. The accused person with other inmates tortured her both physically and mentally on the ground of non-bringing further dowry. The victim was sent back to her father's place but on negotiation again she was sent to her in-law's place. But about one month before the date of lodging of complaint the accused persons tortured her severely and they tied her neck with a rope by stating that they would kill her. At that time, local people came and saved her life. Thereafter, she was taken into the room and her husband beat her with his waist belt. She left her matrimonial house for her grand-mother's place. On 13.3.2006, at about 3 p.m. when after cooking she was sitting in her bedroom, her husband came there and pressed her mouth with a piece of cloth and poured kerosene oil on her body and set her on fire with the help of other family members. Thereafter she was taken to the hospital with 60% burnt injury.
Ext. 4 is the complaint. Ext. 5 is the inquest report done by the Police wherein the Police reported that family tension was prevailing in Noornehar's in-law's family.
PW 1 is an independent man and he is a close neighbour. He knows the happenings. He saw the incident of assault and stated that there was dispute. He further stated that her husband, mother-in-law and sister-in-law started quarreling with the v.g. but the father of the accused person did not assault her. On the date of incident, there was quarrel between Noornehar and her mother-in- law and sister-in-law at her matrimonial house. There was assault and quarrel the whole day. The deceased was crying. The accused persons asked her to go away from their house but Noornehar refused to go away from her matrimonial place as her father paid them the money they demanded. On the date of occurrence, Mintu came to the house at 3 p.m. and assaulted his wife. Thereafter, PW 1 heard "fire, fire". Then he went to that place. Burnt body of Noornehar was brought down. Thereafter, Mustafa, the father of Mintu came to their house and as their names were stated by Noornehar at the dying declaration before the doctor, they fled away. PW 1 is a signatory in the seizure list in respect of the synthetic sari, quilt etc. He could not be dislodged from his stand by vigorous cross-examination done by the defence side.
PW 2 and PW 3 were declared hostile.
PW 4 was simply tendered.
PW 5 stated that frequently the accused persons used to assault her. He could not say how she got burnt at her in-law's place.
PW 6 is a constable. He has no personal knowledge of the incident.
So too PWs 7 and 8, Sub-Inspector of Police and Sweeper of the hospital respectively.
PW 9 is a formal witness.
PW 10 is the father of the victim. He echoed in his evidence what he stated in his petition of complaint. He stated that his daughter died at her matrimonial house but when his daughter was taken to the hospital he found her fully burnt. She was not able to speak. He said that she was cooking food in a stove and what happened thereafter she could not say. He proved the complaint Ext. 4. The cross-examination shows that his daughter did not complain against any one of her in-law's family. Further, he stated that she informed him at hospital that when she was cooking, fire caught on her body. According to him, the other person wrote the complaint and he simply put the signature without knowing the contents of the complaint.
PW 11 knows the parties. He is a signatory in the inquest report. The deceased was his niece by relation. He stated that Noornehar was happy in her matrimonial house and she never complained about her in-laws family.
PW 12 is a signatory of the inquest report. He does not know why and how Noornehar died.
PW 13 is a nurse of the hospital and she stated that the patient was brought to the hospital on 13.6.2006 in burnt condition. Dr. Sukdeb Roy was on duty at that time. When the dying declaration was taken, the victim girl stated that her mother-in-law, sister-in-law, husband used to torture her. So, she set fire on her body. The doctor put his signature and PW 13 also put her signature on the dying declaration which is marked Ext. 6. The dying declaration was written in her presence.
PW 14 is an A.S.I. of Police. He held the inquest over the dead body in presence of the Executive Magistrate. He asked the family members of the victim but her father stated that this was a case of firing.
PW 15 is the Medical Officer. He recorded the dying declaration in the burning ward of the hospital where the patient was admitted. She had capacity to speak. He recorded her statement that how she was set on fire by the members of her in- law's family. He successfully suffered the pressure of cross- examination.
PW 16 is another Medical Officer. He held the P.M. examination over the dead body. He opined that death was due to shock as the victim girl got burn injury which was ante mortem in nature. The P.M. report is marked as Ext. 7.
PW 17 is the I.O. After completing investigation he submitted the charge-sheet.
Unnatural death at in-laws place obviously causes eyebrows. A victim woman may commit suicide by hanging or burning for various reasons. A woman ties the knot of marriage only to find peace and shelter in safe and sound care of her husband. Any departure of such human behaviour has to be taken with a grain of salt. It is not expected from parents or relations of acquaintances that they will falsely rope husband and his relations only to wreck vengeance and punish husband or her in-laws even when the victim dies due to her extra-marital relationship if any or mental frustration or depression etc. on account of other reasons. The probative value and intention of witnesses has to be taken with a touch of ground reality keeping in view the fact that their beloved known victim was tortured and that is why the death was propelled.
To attract section 304B of the Indian Penal Code , the following conditions must be fulfilled:
(i) the death of woman must have been caused by burns or bodily injury or otherwise than under normal circumstances;
(ii) such death must have occurred within seven years of her marriage;
(iii) soon before her death, the woman must have been subjected to cruelty of harassment by her husband or any relatives of her husband;
(iv) such cruelty or harassment must be for, or in connection with demand for dowry.
When the above ingredients are established by reliable and acceptable evidence, such death shall be called dowry death and such husband or his relatives shall be deemed to have caused her death. If the abovementioned ingredients are attracted in view of the special provision, the court shall presume and it shall record such fact as proved unless and until it is disproved by the accused. However, it is open to the accused to adduce such evidence for disproving such compulsory presumption as the burden is unmistakably on him to do so and he can discharge such burden by getting an answer through cross-examination of prosecution witnesses or by adducing evidence on the defence side.
Section 113B of the Indian Evidence Act, 1872 speaks about presumption as to dowry death which reads as under:
"113B. Presumption as to dowry death- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person has caused the dowry death.
In the present case following factual circumstances stand established:
a) the deceased was married to accused no. 1
b) the deceased died at the place of her husband within a
span of seven years.
c) she died an unnatural death.
Therefore, a presumption automatically may arise under section 113B of the Evidence Act. If it is established by the evidence of the prosecution witnesses that the chain is complete suggesting only to the fact that the accused persons perpetrated torture soon before her death over demand of dowry and as such the victim died an unnatural death.
Now, true it is that Section 113B of the Evidence Act has a presumption in favour of prosecution but simply on presumption the prosecution cannot succeed because the presumption is rebuttable and such rebuttal can be obtained by way of cross- examination of prosecution witness or by adducing D.W. Admittedly, no D.W. has been given in this case. So, the cross- examination of the witnesses has to be looked into cautiously. Some pieces of evidence especially that of the father of the victim PW 10 has been discussed. His evidence-in-chief to some extent runs counter to what has transpired in the cross-examination. The victim girl stated to PW 10 that she was cooking in a stove and what happened thereafter she could not say. In cross-examination it is seen that the victim did not complain against anyone. Rather she informed him at hospital that when she was cooking in a stove, fire caught on her body. But the prosecution case is that the accused person set fire on her. In this regard, the alleged dying declaration, Ext. 6, is of paramount consideration. The doctor stated that the patient was in a condition to give a statement and, accordingly, the doctor recorded the statement given by the victim in presence of one Sri Chobi De. The dying declaration runs as follows:
"the patient states that she had quarrel with her mother-in- law, then she herself poured kerosene oil on her body and caught fire."
This suggests that the victim herself poured kerosene oil and set her on fire. There is no semblance of statement coming from the mouth of the victim as dying declaration that any member of her in-law's family set her on fire. Moreover, there is no iota of evidence that over demand of dowry she was tortured and set on fire.
"Quarrel" cannot be equated with "torture". Further "torture"
simplicitor cannot be put at par with "torture" in connection with demand of dowry."
Correct it is that if the dying declaration is smooth, unblemished, voluntarily and natural, that can be the sole basis of conviction. But in a case under Section 304B IPC the dying declaration must relate to the demand of dowry and infliction of torture for non-fulfillment of the same resulting in the death of the victim. In this case, the nature of the dying declaration has already been stated. Regarding acceptability of the dying declaration aid may be taken from the principles as propounded by the Hon'ble Apex Court in Laxman vs. State (2002) 6 SCC 710.
In the instant case, the evidence of prosecution witness differs from the version as given in the dying declaration. So, the said declaration cannot be acted upon. Reliance may be put in State of U.P. vs. Madan Mohan (1989) 3 SCC 390.
Therefore, considering the totality of the circumstances and the materials on record, I am of the view that the findings of the learned court below cannot be accepted because the prosecution could not prove the case against the appellants beyond all reasonable doubts.
Consequently, the impugned judgment and the sentence passed by the learned court below are hereby set aside.
In the result, the appeal stands allowed.
The appellant No. 1 is reported to be in Jail. He be released therefrom immediately.
Similarly, other appellants be released from their respective bail bonds, if not wanted in any other case.
The lower court record be sent down immediately to the learned court below for necessary action.
Urgent certified copy of this judgment and order, if applied for, be given to the parties on priority basis.
(Toufique Uddin, J.)