High Court
Case Details
Crl.A. 65/2010 BEFORE HON’BLE MRS. JUSTICE ANIMA HAZARIKA JUDGMENT AND ORDER (ORAL) This appeal is directed against the judgment and order dated 12.03.2010 passed b y the learned Sessions Judge, Nalbari in Sessions Case No.94/2006 convicting the accused appellant under Section 304 B IPC and sentencing him to undergo rigorou s imprisonment for seven years. 2. Heard Ms. P Bhattacharjee, learned counsel appearing for the appellant. Also heard Mr. BJ Dutta, learned Addl. Public Prosecutor, Assam, appearing for t he respondent State.
Legal Reasoning
3. The prosecution case in brief is that an FIR was lodged by one Upendra B arman with the Barama police station stating inter alia that Niru Patowary (here inafter to be referred to as ’deceased’), sister-in-law of the informant got mar ried with the accused appellant of village Barjhar under Barama Police Station b y registered marriage. Her husband started torturing both physically and mentall y, time to time, demanding dowry and other materials after their marriage and th ereafter deceased was found dead suddenly in the morning on 6.8.2004. Somebody i nformed the father of the deceased that the deceased was suffering seriously. Im mediately after receipt of that news, 8/10 persons from the Barjhar area includi ng the relatives of the deceased came to the matrimonial house of the deceased a nd found her dead body lying near the pond of the house of the accused. From the neighbouring people they came to know that deceased was murdered with conspirac y. Deceased’s husband as well as his family members also involved in the murder. 4. Upon receipt of the FIR, the Officer-in-Charge (’O/C’ for short) Barama police station registered a case being Barama PS Case No.83/2004 under Section 3 04 B IPC against the accused appellant. Investigation of the case was entrusted to Diganta Bora and the O/C also deputed S.I. Mohan Ch. Kalita of Barama police station for conducting the inquest. Accordingly, the inquest was done in presenc e of the witnesses by one Executive Magistrate who made the inquest on the dead body vide Inquest Report, Ext-3. Thereafter, the dead body was sent for post mor tem examination. On completion of the investigation and after collecting the pos t mortem report (Ext 4) which was done at SMK Civil Hospital, Nalbari, police su bmitted charge sheet against the accused appellant under Section 304 B IPC. 5. Offence being exclusively triable by the court of Sessions, learned Chie f Judicial Magistrate, Nalbari committed the case to the court of learned Sessio ns Judge, Nalbari for trial. The learned trial Court after going through the mat erials on record framed charge under Section 304 B IPC. The charge so framed bei ng read over and explained to the accused, he pleaded not guilty and claimed to be tried. 6. During the trial, prosecution has examined seven witnesses in support of their case, including the informant, the Investigating Officer and the doctor. Defence examined none. Defence case is of complete denial. On closure of the pro secution witnesses, the statements of the accused was recorded under Section 313 CrPC by the learned trial Court. Upon appreciation of the evidence as well as o ther materials on record, the trial Court passed the judgment of conviction and sentence against the accused as indicated hereinabove. Hence, the instant applic ation has been filed challenging the legality and validity of the judgment of co nviction on the ground mentioned hereinbelow;- 8. i) aw of the deceased, ii) iii) the witnesses who deposed about the demand of dowry are all reported wit There is no direct evidence regarding demand of dowry by the appellant, neither the parents nor any other family members of the deceased was exa i) ii) mined so as to prove that there was demand of dowry by the appellant, iii) nesses, iv) no external or internal injury was found on the body of the deceased. Mo re so, the medical evidence does not support the prosecution story. As per the m edical evidence, there was no injury on the body of the deceased, v) the conviction of the appellant is entirely based on presumption. 7. In the present case in hand, admittedly there was no eyewitness to the o ccurrence and the judgment of conviction is based only on the basis of presumpti on as laid down under Section 304 B IPC and 113 B of the Evidence Act. The seven prosecution witnesses examined in the case are,- PW 1, Upendra Nath Barman, who is the informant and distant brother-in-l PW 2, Nripen Deka, uncle of the deceased, PW 3, Prafulla Kalita, co-villager who was declared hostile, iv) PW 4, Sarbeswar Kalita, a co-villager, who signed in the Inquest Report, v) , PW 5, Dulal Kalita, a co-villager, who also signed in the Inquest Report vi) PW 6, Dr. Lalit Chandra Das, who held post mortem on the deceased, vii) PW 7, Mohan Kalita, Investigating Officer of the case. 9. PW 1 has stated that he lodged the FIR against the accused alleging that death of the deceased was caused due to the act of the accused. Their marriage took place on 28.4.2004 and the incident occurred on 5.8.2004, i.e. after about four months of their marriage. It was a love marriage. They found the dead body near a pond of the residence of the accused which was sent for post mortem exami nation and thereafter, he lodged the FIR vide Ext 1. Ext 1(i) is his signature. He has also stated that the deceased came to the residence of her mother before one month of the incident and told her mother about the torture made by the accu sed demanding for dowry. She also refused to go to her husband’s house. However, she was sent back to her matrimonial house. He has further stated that his stat ement was recorded by the Magistrate vide Ext 2. Ext 2(1), 2(2) and 2(3) are his signatures. In the statement made before the Magistrate under Section 164 CrPC he has stated that the accused had relation with his sister-in-law, but he did n ot state before the police and also has not written in the FIR about the same. H e has stated before the police that the accused and his family members are invol ved in the offence. After the marriage, the accused and the deceased lived toget her as husband and wife. PW 1 had met the deceased before one month of the incid ent and she informed him the fact of dowry demand by the accused. Even family me mbers of the accused also threatened to kill her. In cross-examination, nothing significant has come out.
Legal Reasoning
PW 2, Sri Nripen Deka, is the uncle of the deceased. He has stated that 10. at the time of marriage, gold ornaments and furniture were given to the accused and the parents of the deceased also gave Rs.40,000/- to the accused for startin g some business, as he was not doing anything. However, the accused used to tort ure her for more dowry. She came to her parents’ house and informed that her hus band tortured her by demanding Sewing machine and necklace, but the parents fail ed to give the same and as a result of which, the accused used to quarrel with t he deceased. PW 2 heard about this fact from his sister, i.e. mother of the dece ased. In cross-examination, PW 2 stated that he heard about the killing of Nir u by the accused from somebody. He did not know the name of that person. PW 2 ha s stated that he had not seen any injury on the dead body. However, death was ca used by falling into the water. He heard from the mother of the deceased that th e accused demanded sewing machine and necklace and deceased’s parents failed to fulfill the demand made by the accused due to financial inability. So they kille d her. 11. PW 3, Prafulla Chandra Kalita, who is a co-villager and Gaonbura of the village, has stated that the death of the deceased was caused by falling in the pond. Hearing about the incident, he went to the place of occurrence. He saw the dead body of the deceased floating on the water. He signed in the inquest repor t (Ext 3) vide Ext 3(1). However, prosecution has declared this witness as hosti le. In the cross-examination, PW 3 had stated that earlier he stated before the poli ce that the accused married the deceased by registered marriage, but the accused did not arrange the feast after the marriage. Thereafter, he heard that Niru di ed by drowning. He also heard that the accused demanded dowry and that he accept ed Rs.50,000 from the father-in-law and was demanding gold chain, sewing machine etc. through his wife. The accused never visited the residence of his in-laws a nd the deceased died within one year of their marriage. He has further stated th at no injury was found on the dead body. 12. PW 4, Sarbeswar Kalita, a co-villager has stated that after hearing abo ut the death of the wife of the accused, he visited the place of occurrence and found the dead body in the pond in front of the house of the accused. He put his signature in the inquest report vide Ext 3(2). Ext 3 is the inquest report. In cross-examination, he has stated that the bank of the pond was very steep. 13. PW 5, Dulal Kalita has stated that he saw the dead body of the deceased recovered by the police from the pond. He put his signature in the inquest repor t, Ext-3 vide Ext 3(3). Defence declined to cross-examine the witness. 14. PW 6, Dr. Lalit Chandra Das held autopsy on the dead body of the decease d. He found no wound on the body of the deceased. In the opinion of the doctor, death was due to mechanical asphyxia, cause of which is consistent drowning. Ext 4 is the post mortem report and Ext 4(1) is his signature. In the cross-examination, he has stated that cause of mechanical asphyxi a is the result of consistent drowning. Rest part, i.e. stomach, lungs etc. were full of water. He has further stated that he did not find any external or inter nal injury on the body of the deceased. 15. PW 7, Mohan Kalita is the I/O of the case. He has stated that upon recei pt of the FIR lodged by one Upendra Nath Barman, he started investigating the ca se, got the statement of the informant recorded under Section 164 CrPC, sent the dead body for post mortem examination and recorded the statement of the witness es found available in the place of occurrence. He has also come to learn that th e accused accepted Rs.50,000 and gold ornaments from his father-in-law. The accu sed demanded sewing machine from his wife and his wife did not fulfill his deman d. Therefore, there was dispute in between them before the incident. PW 3 Prafulla Kalita stated before him that the accused had married the deceased by registered marriage. Villagers were not aware about the marriage. T herefore, PW 3 being the Gaonbura asked him to give a feast to the village peopl e. But he did not do that. PW 3 heard that the accused has taken Rs.50,000/- fro m his father-in-law. PW 3 suspected that quarrel may take place between the accu sed and the deceased on money matters and property etc. In cross-examination, PW 7 has stated that PW 3 earlier told him that hi s house is situated about ‰ furlong from the house of the accused, but he has ne ver heard about any quarrel taking place between the husband and the wife, i.e. accused and the deceased. PW 7 has further stated that he did not record the statements of the parents of the deceased, though they are alive. 16. After closure of the prosecution witnesses, learned trial Court recorded the statements of the accused under Section 313 CrPC, wherein he had simply den ied his involvement in the case. 17. The trial Court has recorded the finding that the accused appellant hara ssed the deceased by demanding dowry and also committed cruelty upon her. The mo ot question for determination, therefore, is whether the accused demanded dowry and committed cruelty on the deceased. 18. So far the demand of dowry is concerned, there is no direct evidence at all. All the witnesses are reported witnesses regarding demand of dowry. Strange ly enough, the parents of the deceased were not examined to confirm the fact as to the allegation of demand of dowry. PW 2 has stated that the parents of the de ceased gave Rs.40,000/- to the accused at the time of marriage for starting some business. Apart from that, they also gave gold ornaments and furniture. On the other hand, PW 3 has stated that he heard from others that the accused demanded dowry and he accepted Rs.50,000/- from his father-in-law. PWs 2 and 3 are only r eported witnesses, more so, from their evidence we find that they were not prese nt at the time when the marriage was solemnised between the parties. Regarding p ayment of the amount of Rs.40,000/- the accused appellant himself has stated in his statement made before the police that his father-in-law had paid a sum of Rs .40,000/- before marriage for establishing some business which cannot be termed as demand of dowry. There is absolutely no evidence that the present accused app ellant had at any point of time demanded dowry. Further this is not a case of ne gotiated marriage. As per the evidence of PWs 1, 2 and 3, the accused appellant had love affairs with the deceased and the marriage was a registered marriage. In this case, we find that the trial Court has relied upon the evidence 19. of PWs 1, 2 and 3 with regard to demand of dowry and torture meted out to the de ceased by the appellant and his family members. Out of them PW 1 has stated that the deceased told her mother about the torture made by the accused for not fulf illing his demand of dowry. To prove the said allegation, mother of the deceased has not been examined. Even, the sister of the deceased, who came to the place of occurrence after hearing the news of death of her sister, was also not examin ed. 20.
Decision
In view of the above, it is apparent that these witnesses could not have any knowledge or information as regards the demand of dowry. 21. After meticulously examining the depositions of the prosecution witnesse s, the evidence of the doctor and other materials on record, it transpires as f ollows;- i) it will be highly unsafe to place implicit reliance on the evidence of P Ws 1, 2 and 3, basing upon which the impugned judgment of conviction was passed convicting the accused under Section 304 B IPC. No reason has been given by the learned trial Court as to how the appellant had been found guilty of an offence punishable under Section 304 B IPC, because in the absence of direct evidence of the occurrence, the presumption under Section 113 B of the Evidence Act could h ave only be drawn after a finding that there was demand of dowry and the decease d was subjected to cruelty or harassment for or in connection with the demand of dowry soon before her death. No categorical finding has been recorded in the im pugned judgment of conviction in regard to these circumstances, inasmuch as, the essential ingredients to prove the dowry death have not been established. There fore, presumption of the dowry death could not have been drawn against the appel lant under Section 113 B of the Evidence Act. ii) knowing fully well about the unnatural death of the deceased, her family members did not lodge any FIR/complaint before the police/any authority, iii) neither family members of the accused appellant nor nearest neighbours w ere examined in this case, who would have been able to say about the relationshi p of the deceased and the accused; i.e. regarding demand of dowry or whether the re was any harassment or cruelty towards the deceased by the appellant, iv) in the post mortem report (Ext-4), doctor has specifically opined that h e did not find any external or internal injury on the dead body of the deceased. On the other hand, PW 4, a co-villager has stated that bank of the pond was ver y steep and there was no slope. In that case, if somebody falls, it will not be an easy task for him/her to climb up to the top of the bank, more so, the occurr ence took place early in the morning. learned trial Court totally ignored the medical evidence while finding t v) he accused appellant guilty under Section 304 B IPC, the prosecution witnesses barring medical officer and the Investigating vi) Officer have stated that they suspect that the accused had killed his wife by dr owning her into the water of the pond, vii) viii) the judgment of conviction was passed entirely on suspicion, in the case at hand, since there is no direct evidence on record showing that it was the accused and none but the accused who had killed his wife by thr owing her into the pond, there is every reasonable possibility of the deceased t o be fallen in the pond, ix) from the evidence of PWs 3, 4 and 5, learned trial Court has come to the conclusion that death was caused to the deceased for drowning at the pond near the house of the accused and therefore, convicted and sentenced the accused unde r Section 304 B IPC on the ground that the deceased died due to drowning within one year of her marriage on a suspicious and unnatural circumstances. 22. Because of the fact that there is, if we may repeat, no cogent evidence on record showing that it was the accused only who had killed the deceased, it will be extremely unsafe and hazardous to maintain the conviction of the accused appellant on such evidence. 23. The prosecution is, thus, required to prove convincingly that the accuse d had killed his wife by throwing her into the pond. The evidence adduced in thi s regard as has already been observed inadequate and inconclusive in nature. The death of the young housewife within one year of marriage is no doubt very unfor tunate and painful but in order to rope in or put the blame on the husband there must be something on record to show that he was responsible for the death of th e deceased. The prosecution was required to establish the ingredients for drawin g the presumption under Section 113 A or 113 B of the Evidence Act. Under our sy stem of justice, no one can be punished unless legal proof is adduced in a court of law to establish that he has committed the offence for which he has been cha rged. Suspicion, howsoever strong, does not amount to legal proof. In the absenc e of legal proof that the appellant has committed the offence under Section 304 B IPC, this Court has no option but to give the benefit of doubt to the appellan t. Under the circumstances, I have no hesitation to hold that the prosecuti 24. on has miserably failed to prove beyond all reasonable doubt that the accused ap pellant committed the murder of the deceased Niru Patowary. The appellant is, th erefore, entitled to the benefit of doubt. 25. In the result and for the reasons stated, the appeal is allowed. The imp ugned judgment and order of conviction and sentence passed against the accused a ppellant is set aside and the appellant is directed to be set at liberty forthwi th if not wanted in connection with any other case. 26. Send down the lower court record.