Document Fragment View

Matching Fragments

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.

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.

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.