High Court
Case Details
Crl.A. 218/2009 B E F O R E HON’BLE MR. JUSTICE I A ANSARI HON’BLE DR. (MRS.) JUSTICE I. SHAH JUDGMENT & ORDER (I. Shah, J.) The appellant herein stands convicted under Sections 498A and 304(B) I.P.C., by judgment and order, dated 30.11.2009, passed, in Sessions Case No. 89(N)/2008, b y the learned Additional Sessions Judge (FTC), Sankardevnagar, Hojai, and senten ced to undergo, for his conviction under Section 304B IPC, imprisonment for life with fine of Rs. 10,000/- and, in default of payment of fine, to suffer rigorou s imprisonment for a period of one year and also to undergo, for his conviction, under Section 498A IPC, rigorous imprisonment for three years and pay fine of R s. 5,000/- and, in default of payment of fine, suffer rigorous imprisonment for three months, both the sentences having been directed to run concurrently. The case of the prosecution may, in brief, be described thus: 2. The deceased, Bina Debnath, was married to the appellant about 3 years prior to date of incident, which took place on 18.08.2006. A female child was born out of their wedlock. According to prosecution, the accused demanded furniture, gold c hain and money from the parents of the said deceased. Although Bina’s father (P. W.2) gave a gold chain, the accused alleged that the chain was not of good quali ty and asked his wife to get another good chain. The accused also demanded money from parents of the said deceased to run his business. On 18.08.2006, Bina died as a result of burn injuries. Ratan Debnath, brother of the accused, informed t he family members of deceased, over phone, that Bina had set fire to herself ins ide latrine. Keshab Lal Debnath (P.W.2) and Bibha Debnath (P.W.4), parents of th e said deceased, along with others, went to the house of the accused and saw the dead body of Bina lying on the floor in front of the bathroom. Pran Krishna Nat h (P.W.1) arrived there later. They saw entire body of the deceased burnt and th e hair cut. P.W.1 then lodged the FIR on 19.08.2006 and Hojai P.S. Case No. 169/ 2006, under Section 306 IPC, was registered against the accused. On completion o f investigation, police submitted charge-sheet under Section 304B IPC against th e accused. 3. ction 304B I.P.C. and claimed to be tried. The accused pleaded not guilty to the charge framed against him under Se
Facts
4. The prosecution, in order to establish its case, examined 11 witnesses. The accused, in his statement, recorded under Section 313 Cr.P.C., denied the al legations levelled against him and pleaded that he was innocent. The defence cas e was that the victim died accidentally by catching fire, from an open kerosene lamp inside the latrine. No evidence was adduced by the defence. Learned trial Court, relying on the evidence of the brother (P.W.1), fat 5. her (P.W.2) and mother (P.W.4) of the said deceased, held that the victim was su bjected to cruelty and harassment in connection with demand of dowry soon before her death and that it was the accused, who had set Bina on fire for non-fulfilm ent of dowry demand. The learned trial Court, therefore, held the accused guilty of offences under Section 304B as well as 498A I.P.C., although no separate cha rge under Section 498A I.P.C. was framed against the accused. P.W.1 (Pran Krishna Nath) has deposed that Ratan Debnath, elder brother 6. of the accused, informed him over telephone that his sister, Bina, had set herse lf on fire inside the latrine. When P.W.1 told him to hospitalize her immediatel y, Ratan informed that Bina had already died. P.W.1 was at his place of posting, which may away from his house. He, then, informed neighbour of his parents over phone that Bina was in serious condition and requested him to inform his parent s. Next day morning, his brother, Premdhan, informed him that Bina was murdered. P.W.1, then, came to the house of the accused. He saw gathering of people inclu ding his family members. He noticed entire body of his sister burnt and the hair cut. He also found some hair lying inside the bathroom. Inquest on the deadbody was held in his presence. He has alleged that deceased Bina had told that the a ccused and his parents had demanded furniture and furniture were accordingly giv en within 1 or 1‰ years of their marriage, because no furniture have been given at the time of marriage. PW1 has also alleged that his parents told him that ac cused had demanded gold chain, which, too, was given, but the deceased informed him that the said chain was not of good quality and that the accused had asked h er to get another good chain, but another chain could not be given to him. PW 1 has further alleged that the deceased had told him that that the accused had dem anded money from her parents for running his business. 7. In his cross-examination P.W.1 has admitted that at the time of his marr iage, the accused had helped him with money. PW1 also admitted that since the ma rriage of the deceased with the accused was organized in a hurry, no furniture o r anything except one ring was presented. PW1 further admits that he did not ent er in the bathroom, where his sister had reportedly been burnt, whereas in his e xamination-in-chief, he had claimed that he had found Bina’s haircut and lying i nside the bathroom. 8. P.W.2, Keshab Lal Debnath, father of the deceased, has stated that fathe r of the accused told him that the deceased committed suicide by setting fire to herself inside the latrine. P.W.2 has also stated that he was unable to give fu rniture and chain, which he gave later. PW2 has alleged that the accused demande d Rs. 50,000/- from him, but he was not able to meet the said demand. P.W.2 has, however, in his cross-examination, admitted that at the time of marriage of his eldest son, the accused helped him monetarily. This witness has also admitted t hat he stated before the police that his daughter (deceased) told him that the a ccused had asked for Rs. 50,000/- for doing business. P.W.2 has further admitted that his daughter, Bina, did not tell him that she had been subjected to assaul t or was engaged in quarrel. P.W.2 has deposed that he heard from people that ac cused had broken the door and brought out the deadbody and that he thought that their (deceased and accused) conjugal life ran peacefully and none of the two ha d ever made any complaint. 9. P.W.4, Bibharani Debnath, mother of the deceased, has deposed that after six months of marriage, a gold chain was given to the accused and furniture wer e given to him after two-and-half years of marriage of the accused with deceased and that six months prior the incident the accused asked for Rs. 50,000/-, but the same was not given. According to the evidence of P.W.4., Bina (deceased) inf ormed her over phone that trouble had arisen in her family as the money was not given. 10. As regards the occurrence, PW4 has deposed that on being informed about the incident, she went to the house of accused and saw the deadbody with burn in juries. 11. In her cross-examination, she has, however, stated that the accused and her daughter had lots of fun in the marriage ceremony of her eldest son. She has also admitted that the accused had said that the articles, which were supposed to be given to him, should be given in the marriage of the younger daughter, Sha nkari, of the said deceased and although the parents of accused were nagging for not giving articles, the accused did not say anything. 12. lice that Bina had told her that accused had demanded Rs. 50,000/-. PW4 has conceded, in the cross-examination, that she did not tell the po 13. s mother and respected her. It is also in the evidence of PW4 that the accused used to address her a 14. Thus, neither P.W. 1 nor P.W.2 or P.W.4 has stated that the said decease d was being ill treated. They have, however, stated that the accused had asked f or Rs. 50,000/- through his wife for doing business. It also transpires from the ir evidence that the accused also helped P.W.1 with money at the time of his mar riage. It is pertinent to mention here that these witnesses, in their statement recorded under Section 161 Cr.P.C., did not state that accused demanded money. 15. Situated thus, it becomes clear, from the evidence of PW1 and PW4, the f act that the accused had demanded money, cannot be simply relied upon; more so, when it is clear evidence on record that even accused has helped his brother-in- law monetarily at the time of the latter’s marriage. 16. To convict a person under Section 304B IPC, it must be proved that death of woman is caused by any burn or bodily injury or occurs otherwise than under normal circumstances and the woman was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand f or ’dowry’. The Explanation appended to Sub-Section (1) of Section 304B says tha t ’dowry’ shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961. 17. Section 2 of the Dowry Prohibition Act defines (cid:28)Dowry (cid:29) as under: (cid:28)In this Act ’dowry’ means any property or valuable security given or agreed to be given directly or indirectly- by one party to a marriage to the other party to the marriage; or (a) (b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person at or before or any time aft er the marriage in connection with the marriage of the said parties, but does no t include dower or mahar in the case of persons to whom Muslim personal law (Sha riat) applies. (cid:29) 18. In view of the definition of ’dowry’, a demand, in order to be ’dowry’, must have some nexus with marriage of the parties. A correlation between giving and taking of property or valuable security with the marriage of the parties is essential. In the cited case of Appasaheb v. State of Maharashtra (2007) 9 19. SCC 721, it was held that a demand for money, on account of some financial strin gency or for meeting some urgent domestic expenses, cannot be treated as a deman d for dowry. 20. Here, in this case, even if the evidence of P.W.1, 2 and 4 are believed, there was no demand for money in connection with the marriage. These witnesses specifically and categorically admit that at the time of marriage, no article co uld be given and they promised to give furniture later. It is in the evidence of the P.W.1 that he got the furniture made after marriage and asked the accused p erson’s family to take furniture, but they did not come to lift the same. P.W. 4 has stated that the accused told them that the furniture be given to his wife’s younger sister at the time of her marriage. P.W. 1 has admitted, in his cross-e xamination, that the accused had helped him with money at the time of his marria ge, but he could not say the amount of money paid by the accused. PW1 has also s tated that when he asked the accused for the expenses the accused had incurred i n his (P.W.1’s) marriage, the accused replied by saying that he had spent some a mount and asked him not to bother about that. 21. There is nothing in the evidence of P.W.1 or P.W. 2 or even P.W.4 to sho w that the deceased was ever ill-treated by the accused for bringing money or an y article. P.W. 2 has stated that he thought that their conjugal life was runnin g peacefully. P.W.4 only stated that the deceased was not habituated to do domes tic works and after marriage, she only asked her why she was not given in marria ge in a good family. None of the witnesses examined by the prosecution stated th at the deceased was harassed or ill-treated in her matrimonial home. Dr. Keshaba Nanda Goswami (P.W.3), who held post-mortem examination on t 22. he deadbody of Bina Debmath on 19.08.2006, and found as follows: (cid:28)whole body deep burn, mouth open, tongue protruded out and bitten between jaws. (cid:29) 23. dy and that the burn injury was caused accidently. In the opinion of the doctor, death was due to deep burn of the whole bo
Legal Reasoning
There is no dispute that death of the deceased was due to burn injury wi 24. thin 7 years of the marriage of the victim. To convict a person under Section 30 4B I.P.C. it must be shown that soon before her death, the victim was subjected to cruelty or harassment by her husband or any relative for, or in connection wi th, any demand of dowry. As and when aforesaid circumstances are established, a presumption of dowry death shall be drawn against the accused under Section 113B of the Evidence Act. However, no such presumption can be drawn when there was n o evidence of cruelty or harassment. 25. In the present case, as discussed earlier, there is nothing on record to show that the said deceased was either treated with cruelty or harassed by maki ng demand for dowry. P.W. 5 (Sukhoy Roy), a neighbour of the accused, has deposed that on hea 26. ring from someone that fire had broken in accused person’s house, he (P.W.5) wen t there and saw the accused trying to break the door of the latrine and, thereaf ter, he took out Bina. P.W.5 also found kerosene lamp blown out inside the house . P.W.5 has, in his cross-examination, stated that he also helped the accused to break the door and that the deceased never told him that she had suffered menta l agony due to her husband or in-laws; rather, he (P.W.5) saw the couple leading peaceful conjugal life and he (P.W.-5) has supported the defence plea stating t hat he heard people discussing that Bina might have caught fire from open lamp s een in the latrine. It is in the evidence of the P.W.5 that Bina was wearing a s ynthetic saree. P.W.6, Arpana Sarkar, is also a neighbour. According to the evidence of 27. this witness, on the date of occurrence, accused person’s mother called her to m assage oil since she was ailing and when she went there, she saw the accused thr ough the window counting money and his wife, Bina, sitting near him and that she , thereafter, went to the room of mother of the accused and while she was massag ing oil, Bina came and offered betel-nut to her mother-in-law and, then, Bina we nt out and after 1/1:30 hours, P.W.6 heard screams and saw smoke coming out of t he latrine, whereupon the accused went there in a run, poured water on the latri ne and broke the door open. 28. It is in the evidence of PW6 that she went to fetch a lamp and when she came back, she saw the accused and P.W. 5 had brought out Bina from inside the l atrine. 29. In her cross-examination, P.W.6 has reaffirmed that accused had thrown w ater through the gap between the C.I. sheet roof and the wall of the latrine and from inside the latrine, Bina had been screaming, (cid:28)save me, save me (cid:29). 30. It is also in the evidence of P.W.6, Bina used to wear synthetic saree a nd she had worn the same at the time of her death too and that the accused infor med the police and, on arrival of the police, the accused was at home. P.W. 6 is assertive that she never witnessed any quarrel between the accused and the dece ased. 31. From the evidence of P.W.5 and P.W.6, it transpires that door of the lat rine, where the occurrence took place, was closed from inside and it was the acc used, who had broken the door open with the help of P.W.5 and taken out Bina fro m the latrine. This apart the accused also slapped water to douse the fire and t here was an open kerosene lamp inside the latrine and that the deceased was wear ing a synthetic saree. P.W.7, Ranjit Paul, is a photographer by profession, who took the photog 32. raphs of the site, wherein an open lamp and burnt cloth lying inside the latrine were visible. P.W.8, Seema Debnath, sister-in-law of the accused, has stated that she 33. saw the accused and P.W.5 breaking the door of the latrine open. She has also st ated that relationship of the accused with his wife was cordial and very good. I t is in the evidence of P.W.8 that there was no electricity connection in the la trine and if one were to go to latrine at night, he was to take an open lamp alo ng. 34. g day and heard that Bina died by catching fire from an open lamp. P.W. 9, Moran Debnath, saw the dead body of the deceased on the followin 35. P.W.10, Subal Ch. Roy, is a reported witness and police seized the open lamp and a pair of sandals in his presence. P.W.10 has stated that he had seen t he accused and his wife going out together on motorcycle on several occasions an d that he did not hear about any quarrel between them. 36. P.W.11, Gouri Kanta Lahakar, was In-charge of Jugijan out post. He recei ved the First Information Report, lodged by the accused, and registered it as U. D. Case No. 20/06, dated 18.08.2006. He went to the P.O. and found the dead body of Bina lying outside the latrine. He also found one kerosene lamp and burnt po rtion of saree inside the latrine. The door of the latrine was broken. He seized the lamp made of bottle. On 19.8.2006, i.e. next day, an Ejhar was lodged by P. W.1 and, on the basis of subsequent Ejhar, Hojai P.S. Case No. 269/2006 was regi stered. 37. In his cross-examination, the Investigating Officer has deposed that he reached the place of occurrence at 10:30 p.m., though the incident had occurred one hour prior to his arrival there and that accused told him that he (accused) himself had broken the door of the latrine and brought out Bina. 38. It is also in the evidence of the Investigating Officer that there was n o electricity connection in the latrine and that P.W. 1 did not tell him that de ad body of his sister was found lying in front of the bathroom, that her hair wa s cut and some hair were lying inside the bathroom and that P.W.1, 2 and 4 did n ot tell him (P.W.11) that the accused demanded money for running his business. 39. In view of the discussions made above, we find that the prosecution fail ed to prove that the accused demanded money in connection with marriage. There i s nothing on record showing that the deceased was ill treated soon before her de ath. The defence plea that the deceased caught fire accidently from the open ker osene lamp, being probable, deserves acceptance.
Decision
40. In result, the appeal is allowed. The impugned judgment and order convic ting and sentencing the appellant under Section 304B/498A are hereby set aside. The accused-appellant is hereby held not guilty of offences under Section 304B a nd 498A and he is acquitted and set at liberty accordingly. 41. Send back the LCR.