High Court
Case Details
Crl.A. 158/2009 BEFORE HON’BLE MR. JUSTICE I. A. ANSARI JUDGMENT & ORDER [ o r a l ] This is an appeal against the judgment and order, dated 17-08-2009, pass ed, in Sessions Case No. 52 of 2006, by the learned Sessions Judge, Nalbari, con victing the two accused-appellants, namely, Jayanta Deka and Basanti Deka, under Section 304B IPC, and sentencing each of them to suffer rigorous imprisonment f or a period of 7 (seven) years. 2. ribed as under: The prosecution’s case, as unfolded at the trial, may, in brief, be desc (i) Deceased Anjali Deka was the wife of accused Jayanta Deka; where as accused Basanti Deka is the wife of Nripen Deka, elder brother of accused Jay anta Deka. During her marital life, Anjali Deka had been subjected to torture by her husband, accused Jayanta Deka, who had raised demand for dowry. Anjali De ka (since deceased) was also disturbed by the fact that the accused Jayanta Deka had illicit relationship with his sister-in-law, accused Basanti Deka. Accuse d Jayanta Deka used to work at Guwahati, but he hails from Belsor, under Belsor Police Station. (ii)
Legal Reasoning
On 19-11-2004, PW1, father of the deceased Anjali, received info rmation from a PCO, located near the matrimonial house of the said deceased, tha t Anjali was missing. On receiving the information, PW1 rushed to the house of t he accused and, on arriving there, he saw a gathering of people and came to lear n from them that Anjali’s dead body had been found floating in the water of a lo cal pond. Thereafter, PW1 went to Belsor Police Station, where he came to learn that Anjali’s dead body was taken to Civil Hospital, Nalbari. On arriving at th e Civil Hospital, Nalbari, PW1 saw the dead body of his daughter, Anjali, lying with injuries on her shoulder and back. PW1, then, lodged a written Ejahar (Ext. 1) on 20-11-2004, at Belsor Police Station. Treating the said Ejahar as First In formation Report, Belsor Police Station Case No. 148 of 2004 was registered, und er Sections 302/201/34 IPC, against the two accused, namely, Jayanta Deka and Ba santi Deka, who had been named as accused in the FIR. During the course of investigation, inquest was held over the said dead (iii) body, which was also subjected to post mortem examination and on completion of i nvestigation, a charge sheet was laid, under Section 302/201/34 IPC, against the two accused aforementioned. At the trial, when a charge, under Section 304B IPC, was framed against
Legal Reasoning
4. the accused, both the accused pleaded not guilty thereto. 5. In support of their case, prosecution examined 8 (eight) witnesses. The accused were, then, examined under Section 313 (1)(b) Cr.P.C. and, in their exam inations aforementioned, they denied that they had committed the offence, which was alleged to have been committed by them, the case of the defence being that o f total denial. No evidence was adduced by the accused. 6. Having, however, come to the conclusion that the two accused aforementio ned stood proved, beyond reasonable doubt, guilty of offence under Section 304B IPC, the learned trial Court convicted them accordingly and passed sentences aga inst them as mentioned above. 7. Aggrieved by their conviction and the sentences, which had been passed a gainst them, the two accused, as convicted persons, have preferred this appeal. I have heard Mr. BM Choudhury, learned counsel for the appellants, and 8. Mr. KA Mazumdar, learned Additional Public Prosecutor, Assam. 9. ord with the evidence of the informant. According to the evidence of the informant (PW1), his daughter, Anjali D 10. eka, was married to the accused on 25-07-2003 and Anjali died on 19-11-2004, i.e ., barely within a period of 1‰ years of her marriage with accused Jayanta Deka. While considering the present appeal, let us marshal the evidence on rec 11. What is relevant to note in the evidence of PW1 is that he has deposed t hat Anjali reported to him that she had been tortured by accused Jayanta Deka by raising demand for dowry. What is, however, immensely important to note, in th is regard, is that neither PW1 has deposed nor the prosecution has elicited from him as to when the alleged demand for dowry was raised, where the demand was ra ised and what was the nature of demand in the sense as to whether any money was demanded or any material or property had been demanded as dowry. This apart, not hing has also been elicited by the prosecution to bring on record as to how, whe n and where PW1’s daughter, Anjali, had been subjected to torture by accused Jay anta. Though PW1 has deposed that Anjali also reported to him that her husband 12. , accused Jayanta Deka, had illicit relation with his sister-in-law, Basanti Dek a, there is not even an iota of evidence on record establishing, far less provin g, any illicit relationship being maintained by accused-appellant, Jayanta Deka, with the co-accused, Basanti Deka. 13. Situated thus, it is wholly impossible to hold that accused Jayanta Deka had any illicit relation with co-accused, Basanti Deka, or that he had raised a ny demand for dowry or subjected Anjali to cruelty. 14. What is of utmost importance to note, while considering the present appe al, is that it is the evidence of PW1 himself that his son-in-law, accused Jayan ta Deka, works at Guwahati; whereas matrimonial house of accused Anjali was at B elsor. There is not even a particle of evidence on record to show that on the d ay of the occurrence (i.e., on 19-11-2004), when the dead body of Anjali was fou nd, either accused Jayanta Deka or accused Basanti Deka was present in the house , where Anjali was present or lived. It is the evidence of PW1 that on 19-11-200 4, he was informed by a person from PCO that Anjali was missing and when he reac hed Jayanta Deka’s house, he found a gathering of people, who told him that Anja li’s dead body had been found and taken to Belsor Police Station, whereupon he w ent to Belsor Police Station, but came to learn there that Anjali’s dead body ha d been taken to Civil Hospital, Nalbari. It is also in the evidence of PW1 that on reaching Civil Hospital, Nalbari, he saw Anjali’s dead body, which bored inju ries on her shoulder or back, and that he, then, lodged Ejahar, which is Ext.1. 15. The identity of the person, who had allegedly informed PW1 remained undi sclosed. What can also not be ignored in the fact that PW1 himself admits, in hi s cross-examination, that he had lodged the Ejahar on suspicion. Moreover, ther e is no evidence that PW1 met accused-appellant, Basanti, in or around the matri monial house of the said deceased nor is there any evidence to show that PW1 met his son-in-law, Jayanta Deka, in the matrimonial house of his daughter. In fac t, it has not been in dispute that Jayanta Deka used to work at Guwahati. Wheth er, therefore, accused-appellant, Jayanta Deka and/or Basanti Deka, were present at the house, where Anjali stayed or lived last, is the question, which remains unanswered. 16. Bearing in mind, thus, the fact that the presence of none of the two acc used-appellants at the house, where Anjali was present on 19-11-2004, has been p roved by the prosecution. 17. Bearing in mind also the fact that PW1 concedes, in his cross-examinatio n, that there is a case pending against his son, because his son had assaulted t he accused persons. 18. When I proceed further with the evidence on record, I find that PW1 does not give any direct or indirect evidence, implicating any of the two accused-ap pellants as persons, who had killed his daughter, Anjali. 19. As far as PW2, PW3 and PW4 are concerned, all three of them turned hosti le and did not support the case of the prosecution. Except putting to these witn esses their previous statements, which had allegedly been made by these witnesse s to the police during investigation, nothing has been elicited by the prosecuti on to show that any of the two accused-appellants had caused, or were responsibl e for, the death of Anjali. 20. There is also no substantive evidence on record that Anjali had been su bjected to torture by any of the accused-appellants or that any demand for dowry had been raised by any of the two accused-appellants. In fact, PW2 has been cat egorical in his evidence that he had never seen accused Jayanta Deka assaulting his wife nor had he seen any quarrel between Anjali and her husband. 21. So far as PW7 is concerned, he is merely a witness to the inquest, which was held on Anjali’s dead body. 22. This Court is, therefore, left with the evidence of the doctor (PW6) and Investigating Officer (PW8). 23. The doctor (PW6), who had, admittedly, conducted post mortem examination on the dead body of Anjali, on 21-11-2004, found as follows: (cid:28)Dead body of a female of 22 years of age, rigormortis present, whole body swoll en, eyes closed, mouoth closed, tearing of left ear lobe, margin was stained wit h blood, horizontal abrasion at the roof of the neck and to the front, one in ea ch side of the midline, size right side 2.5 cms x 1 cm and left side 2 cms x 1 c m and both are 3 cms above the clavicle. No cut mark is seen. He found abrasion in the abdomen 2 cms from the umbilicus, right side, size 3 cms x 2 cms. Froth present in the larynx and trachea. Stomach contained with large amount of fluid. Both lungs contained air and fluid. Suggestive of drowning. External injuries were ante-mortem and homicidal in nature. Drowning is anti-mor tem (cid:29) In the opinion of the doctor that the death was due to asphyxia followin 24. g drowning. 25. Though the findings of the doctor were not disputed by the defence, the learned trial Court has taken the view that Anjali did not die, because of drown ing. The learned trial Court’s judgment is, however, not clear as to how Anjali’ s death could have been described as homicidal. 26. At any rate, the question, which faced the learned trial Court, and the question, which confronts this Court, in the present appeal, is: Whether the two accused-appellants or any of them was responsible, in any manner, for the death of Anjali. 27. With regard to the above, the learned trial Court, as discernible from t he impugned judgment, has held the two accused-appellants responsible for the de ath for Anjali on the ground that they have not been able to established as to h ow Anjali died, when the two accused were in the same house as Anjali. Strangely enough, there is no evidence on record, as already pointed out above, that on 1 9-11-2004, any of the two accused was present in the house, where Anjali was pre sent. In the absence of any such evidence, the conclusion, which the learned tri al Court has derived, has to be held as devoid of any substance, based on conjec ture and surmises. To put it pithily, the conclusion, reached by the learned t rial Court, cannot but be described as perverse. What emerges from the above discussion is that there is no evidence on r 28. ecord that any of the two accused-appellants was responsible for the death of An jali nor is there any evidence, if I may reiterate, that Anjali had been subject ed to cruelty or any demand for dowry was raised. There can be no doubt that Anj ali’s death is mysterious and took place in suspicious circumstances inasmuch as the doctor has found the left ear lobe of Anjali had been torn with its margin stained with blood and horizontal abrasion at the roof of the neck. Notwithstand ing these injuries, the fact remains that in the absence of any credible and con crete evidence proving allegations of demand for dowry having been raised by the accused-appellant, mere fact, that Anjali died in unnatural circumstances, coul d not have led, and ought not to have led, the learned trial Court to hold the t wo accused-appellants guilty of the offence of dowry death. Situated thus, this Court is clearly of the view that the evidence, addu 29. ced by the prosecution, was grossly inadequate to hold, confidently and boldly, the two accused-appellants guilty of the offence, which they stood charged with. 30.
Decision
In the result and for the reasons discussed above, this appeal succeeds. The impugned conviction of the accused-appellants and the sentences passed agai nst them by the judgment and order, under appeal, are hereby set aside. The accu sed-appellants are held not guilty of the offence of which they stand convicted of and are acquitted of the same. 31. ed and their sureties stand discharged. 31. As both the accused-appellants are on bail, their bail bonds are cancell Send back the LCR