High Court · 2012

3. The prosecution examined 10 witnesses, namely, Jatin Biswas, brother of the deceased as PW 1; Amal Biswas, another brother of the deceased as PW 2; Dha ranidhar Deka, Gaonburah (village headman) as PW 3; Prafulla Biswas, neighbour o f the deceased as PW 4; Dr. Bhogeswar Thakuria, who conducted post mortem examin ation as PW 5; Smti. Yomuna Biswas, mother of the deceased as PW 6; Hiralal Bisw as, neighbour of the deceased as PW 7; Dr. Rajkumar Pradyut Gohain, Deputy Dir ector of FSL, Guwahati, as PW 8; Subodh Debnath, neighbour as PW 9 and Sri Babul Bora, Investigating Officer of the case as PW 10.

4. The evidence of PW 1, Jatin Biswas, PW 2, Amal Biswas and PW 6, Smti. Yo muna Biswas, was to the effect that the deceased was subjected to harassment by the accused for demand of dowry soon before her death. Similar was the evidence of PW 4, Prafulla Biswas, neighbour of the deceased.

5. the prosecution allegation and pleaded innocence. In his statement under Section 313 Cr.P.C. the accused/appellant denied

6. After appreciating the evidence on record, the learned trial Court held that it was established that death took place within seven years of marriage oth erwise than in normal course and that she was subjected to harassment by her hus band in connection with the demand of dowry. In the circumstances presumption un der Section 113-B of the Evidence Act was attracted which was not rebutted. Acco rdingly, the appellant was held guilty of the offence. The relevant discussion b y the learned trial Court is as under : (cid:28)5. comes clear that the victim Fulbala Mandal was married by accused Niranjan Manda & &. Now, so far our present case goes, from the evidence on record it be l within less than two years from the date of occurrence. It is evidence on reco rd that first of all the accused kidnapped Fulbala from her house and to that ef fect, ejahar was lodged with the police. But accused Niranjan Mandal came forwar d for a compromise for which due to amicable settlement, the case was not procee ded with and in present of (cid:28)Raij (cid:29), i.e. village (cid:28)Bichar (cid:29), Niranjan Mandal accept ed Fulbala Biswas and the family of Fulbala also offered the (cid:28)Jautuk (cid:29) including bi-cycle. In the evidence of PW 1 Jatin Biswas, PW 2 Amal Biswas and PW 6 Jamuna Biswas, we find about demand of Niranjan Mandal after about six months of their marriage. In the evidence of all three witnesses, what accused Niranjan Mandal demanded from the parrents’ house of Fulbala, we get it. On the other hand, PW 1 and PW 6 in their evidence clearly stated what they offered as (cid:28)Jautuk (cid:29) at the time of marriage after settlement of kidnap by the villagers. To that effect, ev en a bi-cycle was also given to the accused from the family of Fulbala. In the e vidence of PW 6 we find that accused Niranjan demanded some gold ornaments such as gold ring for accused himself, ear ring for Fulbala and other articles as sta ted. In the evidence of PW 1, PW 2 and PW 6 we clearly find that demanding the a rticles, Niranjan Mandal used to torture Fulbala. PW 2 clearly stated as to how he got opportunity at the time of torturing Fulbala by Niranjan Biswas. In the e vidence of PW 4 Prafulla Biswas, we find how Fulbala was tortured and drove out Fulbala by her husband. Just 8/9 days ahead of occurrence, Niranjan Mandal physi cally assaulted Fulbala and drove her out from the house for which Fulbala came to his house seeking shelter. Subsequently, mother of Niranjan told him that Nir anjan would not keep Fulbala. Under the circumstances, this witness advised to s end Fulbala back. If that was the attitude of accused towards his newly married wife, under the circumstance, why he kidnapped Fulbala Biswas from her house? I n the evidence of PW 1, we find that Niranjan Mandal demanded certain amount of money and more articles to which they refused. But his sister reported him that if these are not paid, she would be killed. After considering entire evidence, a s I discussed above, I could not reject the prosecution evidence on record. In t he defence side, there is no proper cross-examination of the witnesses for which the evidence of almost all the prosecution witnesses stood unrebutted. Thus it becomes clear to me that demanding some (cid:28)Jautuk (cid:29), Niranjan Mandal used to tortur e physically on the person of Fulbala and it is also in the evidence that someti mes Fulbala was detected in the midst of field at a distance of about 200 yards from the house of accused. PW 10 Babul Bora performed the inquest on the dead bo dy of Fulbala and body was lying by the side of a bamboo bush as appears from Ex t-1, the inquest report. He gave the description of the dead body. He also detec ted some injuries just below the chest of the dead body as it reveals from inque st report. He also found more mark of injuries in the anterior part of ankle of right leg. He also found some injuries at the lower part of the left leg, but di d not detect more serious injuries on her body. In the evidence of PW 5, i.e. do ctor who carried on post-mortem examination, we do not find any of the injury on the body of Fulbala, and as such, PW 5 could not ascertain the cause of death o f Fulbala. So, PW 5 preserved viscera for forensic examination. PW 8 proved the result of viscera examination and stated before us that the examination gave pos itive test for organo chlorine pesticide. (cid:29)

7. We have heard Mr. A. L. Mandal, learned counsel for the appellant, and M r. D. Das, learned Additional Public Prosecutor, Assam, for the respondent State .

8. Learned counsel for the appellant fairly stated that in the face of adeq uate evidence of brothers, mother and neighbour of the deceased that she was sub jected to harassment soon before her death in connection with demand of dowry, t he finding that the presumption under Section 113-B of the Evidence Act was attr acted could not be assailed. On independent appreciation of evidence, we are als o of the view that the prosecution has been able to establish that the death too k place within seven years of marriage in circumstances other than normal and th e accused had harassed the deceased in connection with demand of dowry soon befo re her death. There was no serious infirmity in the consistent evidence given by PW 1, Jatin Biswas, PW 2, Amal Biswas, PW 4, Prafulla Biswas and PW 6, Smti Yom una Biswas. We, thus, find no ground to reject the version of the prosecution. A ccordingly, we upheld the conviction of the appellant under Section 304-B IPC.

9. Coming to the question of sentence, it was pointed out by learned counse l for the appellant that the accused has been in custody for about 10 years - mo re than nine years after conviction and some period during trial. He is a poor p erson and could not prefer appeal for more than four years. He had his ailing mo ther, who was 80 years of age at the time of filing the appeal as mentioned in M isc. Case No.1384 of 2007. He submits that sentence may be reduced. After due consideration of the facts and circumstances of the case, we a 10. re of the view that ends of justice would be met if substantive sentence awarded to the appellant is reduced to rigorous imprisonment for 10 years. We order acc ordingly.

12. e reduce the sentence to rigorous imprisonment for 10 years. As a result of above, while upholding the conviction of the appellant, w

13. The appeal stands disposed of accordingly.