Calcutta High Court (Appellete Side)
Satish Chandra Pandit @ Sisir ... vs The State Of West Bengal on 14 June, 2021
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
The Hon'ble JUSTICE BIBEK CHAUDHURI
CRA 323 of 2015
Satish Chandra Pandit @ Sisir Pandit & Ors.
-Vs-
The State of West Bengal
For the Appellants: Mr. Sandipan Ganguly, Sr. Adv.,
Mrs. M. Mukherjee,
Mr. Suman Chakraborty,
Mr. Suryadipta Bairagya.
For the State: Mr. Sukanya Bhattacharyya,
Mr. M. Firaj Ahmed Begg.
Heard on: March 22, 2021.
Judgment on: June 14, 2021.
BIBEK CHAUDHURI, J. : -
1.
The appellants being aggrieved against the judgment and order of
conviction and sentence passed by the learned Additional Sessions Judge,
Kalyani, Nadia for offence punishable under Sections 498A/34 of the
Indian Penal Code and under Sections 304B/34 of the Indian Penal Code
have preferred the instant appeal.
2. One Rasmita Ghosh, since deceased had love affair with one Rabi
Sashi Pandit during their college days. In the month of May, 2008
Rasmita married Rabi Sashi against the consent and wish of her parents.
After marriage both Rasmita and Rabi Sashi used to live at the paternal
home of Rabi Sashi. On 27th September, 2009 one Hitendranath Ghosh,
father of Rasmita lodged a written complaint to the Officer-in-Charge
Chakdaha Police Station stating, inter alia, that after the marriage,
Rasmita was mentally and physically tortured by her parents-in-law and
sister-in-law on demand of dowry. Whenever she visited her paternal
home she used to make such complain to her parents. On 26th
September, 2009 at about 5.15 pm the defacto complainant received a
phone call from one Pranab Banerjee and came to know that his daughter
had met with an accident and was admitted to JNM Hospital at Kalyani.
Immediately he rushed to the hospital and found his daughter severely
burnt. On being asked, she told that her father-in-law, mother-in-law and
sister-in-law poured kerosene oil on her body at about 2.30 pm from a
lamp and set her in fire intending to kill her. It was also stated in the FIR
that when she was taken to hospital, her matrimonial relations forced her
to make a false statement before the Medical Officer that she caught fire
accidentally when a kerosene lamp tumbled on a table. On 27th
September, 2009 at about 1.30 am she succumbed to her injuries.
3. On the basis of the said complaint police recorded formal FIR being
Chakdaha P.S Case No.534 of 2009 dated 27th September, 2009 under
Section 498A/302/34 IPC and took up the case for investigation.
4. On completion of investigation, police submitted charge-sheet
against the appellants under Section 498A/302/34 of the Indian Penal
Code.
5. The case was transferred to the Court of the learned Additional
Sessions Judge, Fast Track, 2nd Court at Kalyani for trial. The learned
trial judge framed charge against the appellants under Section 498A/34
and Section 304B/34 of the Indian Penal Code and alternatively under
Section 302/34 of the Indian Penal Code.
6. At the time of trial, accused persons/appellants took specific
defence that on 26th September, 2009, the husband of the deceased was
repairing a C.D player with the help of an electric shouldering iron. At
about 2.30pm, there was loadshading and a kerosene lamp was lit.
Suddenly the said lamp tumbled on a table and kerosene poured on hot
shouldering iron causing flame. Rasmita caught fire accidently. Her
husband tried to save her and douse fire her body hugging her with
clothes. He also received 60 percent burn injury. Both of them were taken
to hospital and admitted. Rasmita died of burn injuries and her husband
was discharged from the hospital after about three months.
7. Learned trial judge examined the witnesses on behalf of the
prosecution as per the charge sheet and defence and on conclusion of
trial, held the accused person guilty and convicted and sentenced them
accordingly.
8. Challenging the said judgment and order of conviction and sentence
instant appeal is preferred.
9. It is found from the lower court record that in order to establish the
charge, prosecution examined as many as ten witnesses. Amongst them
PW1 and PW3 are the parents of the deceased. PW2, PW5 and PW4 are
the paternal uncles and maternal uncle respectively of the deceased. PW6
held inquest over the dead body of the deceased. PW7 is a constable of
police. PW9 is the Investigating Officer. PW8 and PW10 are the Medical
Officer and autopsy surgeon respectively.
10. In support of the defence the husband of the deceased, one Pranab
Kanti Banerjee, a neighbour of the appellants and two doctors were
examined as DW1 - DW4 respectively.
11. Mr. Sandipan Ganguly, learned Senior Counsel appearing on behalf
of the appellants at the outset draws my attention to the impugned
judgment and submits that the learned trial judge held the appellants
guilty for committing offence under Sections 498A/304B of the Indian
Penal Code on the ground that she received burn injury on her body
within one year of marriage. Secondly, she was subjected to mental and
physical torture on demand of dowry by the appellants during her life
time. It is also held by the trial judge relying upon a decision of the
Supreme Court in the case of Trimukh Maroti Kirkan vs. State Of
Maharashtra reported in (2006) 10 SCC 681, that the demand of dowry
is so secretly made that it becomes very difficult for the prosecution to
have independent and disinterested witness . But it does not mean that a
crime committed in secrecy or inside the houses should go unpunished.
Thirdly, the learned judge held that the specific plea of the defence was
that the deceased caught fire accidentally when a kerosene lamp fell on
an electric shouldering iron causing outbreak ok flames.
12. According to Mr. Ganguly all the above circumstances were not
proved during trial on the basis of evidence adduced by the witnesses on
behalf of the prosecution. The learned trial judge held that the appellants
used to demand dowry from the deceased absolutely without any evidence
on record only on the ground that the deceased had met with an
unnatural death within one and half years of her marriage.
13. In order to substantiate his argument, Mr. Ganguly takes me to the
evidence of PW1 to PW5 who are the parents and close relations of the
deceased. From the cross examination of PW1, father of deceased Rasmita
it is found that Rasmita and Rabi Sashi fell in love while they were
studying in college. The father of Rabi Sashi wanted to give marriage of
his son with Rasmita but PW1 did not agree to such proposal because at
the relevant point of time Rasmita and Rabi Sashi were unemployed. It is
also gathered from his cross examination that their marriage was
arranged by the father-in-law of Rasmita. Defacto complainant did not
lodge any complaint alleging, inter alia, that her daughter was treated
with cruelty by the accused persons during his daughter life time. Except
on omnibus allegation that the deceased was tortured and harassed by
the appellants during her life time on demand of dowry, none of the
witness could state specifically about the nature and manner of torture,
or, in other words how the deceased was tortured and harassed by the
accused persons. According to Mr. Ganguly, mere use of the words
harassed and torture cannot substantiate allegation that the victim was
treated with "cruelty" and death of the deceased was caused due to
demand of dowry.
14. The story of harassment and torture without any details on demand
of dowry was narrated only by the witnesses closely related with the
deceased. However, from their evidence it is found that the parents of the
deceased and other related witnesses never visited the maternal home of
the deceased after her marriage. If a daughter of a person is tortured
physically by her matrimonial relation immediately after marriage on
illegal demand of dowry, it is very natural for the parents to rush to her
matrimonial home to settle the dispute. However, they never visited the
matrimonial home of the deceased as they could not accept their
daughter's marriage with Rabi Sashi (DW1). According to Mr. Ganguly
this shows the intensity of discord that had arisen between two families,
because the deceased had married Rabi Sashi against the wishes of her
parents. Practically the father of the deceased (PW1) cut off all relation
with her daughter after her marriage. He did not know that her daughter
applied for School Service Commission Examination and the expenses for
such examination were incurred by the appellant No.1. Under such
circumstances, when the relation between two families was never cordial,
if not inimical, examination of independent witnesses to prove charge
under Section 498A IPC was absolutely necessary.
15. The learned Senior Counsel on behalf of the appellants further
submits that the evidence of PW4 and PW5 are in the nature of hearsay.
PW5 even did not meet the deceased after her marriage. Therefore, they
had no personal knowledge about the married life of the deceased and
Rabi Sashi, save and except what they heard from her parents. According
to Mr. Ganguly during the lifetime of the deceased none of her paternal
relations made any complaint of torture allegedly inflicted upon her on
demand of dowry. The defacto complainant stated that the deceased used
to make such complain to him and her mother over phone. However they
could not state the phone number of the deceased in their evidence. The
learned court below gave undue reliance on purported oral dying
declaration of the deceased where she stated that the appellants poured
kerosene oil on her body from a kerosene lamp and ablazed her. It is
contended by Mr. Ganguly placing reliance upon the decision of the
Supreme Court in Kantilal Martaji Pandor vs. State of Gujarat & Ors
reported in 2013 (8) SCC 781 that a dying declaration is admissible only
under Section 32(1) of the Evidence Act as to the cause of death and the
said evidence cannot be used to prove offence under Section 498A of the
IPC. In Bairon Singh vs. State of M.P reported in (2009) 13 SCC 80 it is
held by the Supreme Court that a statement of a dead person is
admissible in law if the statement is as to cause of death or as to any
circumstance of transaction which resulted in her death, in a case in
which cause of death comes into question. Such evidence admissible
under Section 32(1) of the Evidence Act can not be evidence in law to
establish an offence under Section 498A of the Indian Penal Code because
under Section 498A simpliciter, question of death is not and cannot be an
issue for consideration.
16. It is further submitted by Mr. Ganguly that there is absolutely no
evidence to hold the appellants guilty for committing offence under
Section 304B of the Indian Penal Code. In order to bring him charge
under Section 304B, the prosecution is under obligation to prove amongst
other ingredient that the deceased must have been subjected to cruelty or
harassment by her husband or any relative of her husband; secondly
such cruelty or harassment should be for or in connections with demand
of dowry; thirdly, the deceased was subjected to cruelty soon before her
death by her husband or any other relative in connection with demand of
dowry. In the FIR the defacto complainant stated that the deceased was
subjected to mental and physical torture by the appellants for dowry
amounting to more than one lakh and ornaments. However in his
evidence the defacto complainant (PW1) and other related witnesses never
felt it necessary to describe the exact conduct of the appellants which
according to them amounted to harassment or torture. In support of his
submission, Mr. Ganguly refers to the case of Amar Singh vs. State of
Rajasthan reported in (2010) 9 SCC 64. In the said decision the Hon'ble
Supreme Court clearly observed that parrot like statement of the
witnesses to the effect that the deceased was 'harassed' and 'tortured'
on demand of dowry is not sufficient to prove a charge under Section
498A and 304B of the Indian Penal Code. The witnesses are under
obligation to describe exact conduct of the accused which according to
them, amounted to harassment or torture on demand of dowry. Exact
conduct of the accused persons for which the deceased felt humiliated or
tortured or harassed must be proved by the prosecution. In the instant
case there is absolutely no evidence led by the witnesses on behalf of
prosecution stating the conduct, and the manner and nature of
harassment and torture allegedly for dowry for which the victim had met
with an unnatural death.
17. It is pointed out by the learned Senior Counsel for the appellant
next that according to the prosecution, the deceased made two dying
declarations. The first dying declaration was recorded by the Medical
Officer who initially treated her in the hospital where she stated that she
received burn injury accidentally when kerosene oil fell from a lamp over
hot shouldering iron. The deceased was brought to the hospital by one
Pranab Banerjee and Madan Sikdar being the neighbours of the
appellants. It is alleged by the parents and other related witnesses of the
deceased that the deceased was threatened by the accused persons to tell
that she received burn injury accidentally, failing which she would not get
any medical treatment. Mr. Ganguly has rightly pointed out the accused
persons did not accompany the deceased to hospital. She was taken by
the neighbours of the appellants to hospital. Therefore, the deceased have
no scope of being tutored by the appellants. It is alleged by the
prosecution that after PW1 and other paternal relations of the deceased
saw her in the hospital after considerable period of time from when she
received her burn injury, the deceased allegedly told them that the
appellants poured kerosene oil on her body and set her in fire at about
2.30 pm on the date of occurrence. Therefore, there are two contradictory
dying declarations, one recorded by the Medical Officer immediately after
the victim was brought to the hospital in course of her treatment and
another oral dying declaration made by the deceased at least five to six
hours later to her parents. Mr. Ganguly repeatedly draws my attention to
the evidence of PW8, Dr. Nirmalendu Kanjilal who stated that the patient
was brought to the hospital with 80% burn injury. Her condition was very
bad and it was gradually deteriorating. During cross examination she also
stated that condition of the patient was such that she was not able to
complete sentence after sentence. If the condition of the patient with
severe burn injury was such that at the time of initial medical
examination she could not utter or complete sentences, it is very hard to
hold that she was mentally fit and oriented to make any dying declaration
to her parents after considerable lapse of time. The parents and other
relatives of the deceased met her in the hospital after about 5/6 hours
from the actual time of incident. At that time her condition would
obviously further deteriorate and making oral statement as to the cause of
death to her parents was clouded with serious doubt. In support of his
argument Mr. Ganguly refers to the following decisions:
(a) Sharda vs. State of Rajasthan : (2010) 2 SCC 85
(b) Parimesh Tapali vs. State of West Bengal : (2014) 5 CHN
(CAL) 483
(c) Allauddin Momin vs. State of West Bengal : (2015) 2 CHN
(CAL) 122.
18. In Sharda (supra) the victim made 3 contradictory dying
declarations. First two dying declarations was recorded in presence of
doctor. The said doctor deposed during trial of the case categorically
stating that the deceased was mentally alert and in fit condition to give
her statement of her own full will and accord. In the said two dying
declarations the deceased made statement that she had sustained burn
injuries accidentally while cooking. After a gap of three days another
dying declaration was recorded by the Magistrate where the deceased
alleged that her mother-in-law had poured kerosene oil in her body and
set her in fire. The Supreme Court under the above factual background
held in paragraph 22 as hereunder:-
"22. Cumulative effect of the aforesaid leads to an irresistible
conclusion that Exh. P-18 is not sufficient to hold the appellant
guilty of commission of offence under Section 302 of the IPC. It
neither inspires confidence nor is wholly trustworthy to sustain
the conviction of the appellant. It was an after-thought and has
been got prepared after the deceased appears to have been
tutored to say so by her parents. In the light of this, it has to be
completely ignored which we accordingly do so"
On the scope of evidentiary value of dying declaration, the
Supreme Court observed as follows:
"25. Though a dying declaration is entitled and is still recognized
by law to be given greater weightage but it has also to be kept in
mind that accused had no chance of cross-examination. Such a
right of cross- examination is essential for eliciting the truth as an
obligation of oath. This is the reason, generally, the court insists
that the dying declaration should be such which inspires full
confidence of the court of its correctness. The court has to be on
guard that such statement of deceased was not as a result of
either tutoring, prompting or product of imagination. The court
must be further satisfied that deceased was in a fit state of mind
after a clear opportunity to observe and identify the assailants.
Once the court is satisfied that the aforesaid requirement and also
to the fact that declaration was true and voluntary, undoubtedly,
it can base its conviction without any further corroboration.
26. It is not an absolute rule of law that the dying declaration
cannot form the sole basis of conviction unless it is corroborated.
The rule requiring corroboration is merely a rule of prudence. In
this regard, we may profitably quote the following para from State
(Delhi Admn.) Vs Laxman Kumar : (SCC pp. 498-99, para 40)
"40. We have also come to the conclusion that the High
Court failed to take into account one material aspect while
appreciating the evidence of the prosecution witnesses. It is
a fact that Sudha had been burnt and according to the
medical opinion that was to the extent of 70%. As the
evidence shows, Sudha was in her senses and was
capable of talking at the time when she was being removed
to the hospital or even after she had been admitted as an
indoor patient. The two sisters or their respective husbands
had no apprehension that Sudha would not live. In case
Sudha came round, she was to have lived in the family of
her husband. No one interested in the welfare of Sudha
was, therefore, prepared to make a statement which might
prejudice the accused persons and lead to the straining of
relationship in an irreparable way. Therefore, the silence or
avoidance to make a true disclosure about the cause of fire
particularly so long as Sudha was alive, cannot be over-
emphasised an adverse inference drawn by the High Court
from the conduct of the sisters was indeed not warranted
in the facts of the case."
19. In Parimesh Tapali (supra) the Division Bench of this Court held
that in case of multiple dying declaration which are contradictory in
nature it is not prudent to accept the dying declaration that was made by
the deceased after considerable period of time from the occurrence when
there was scope for the deceased to meet her parents and subsequent
dying declaration might be a product of tutoring.
20. In the instant case it is ascertained from the evidence PW8 that the
deceased stated to him that she caught fire accidentally at the time of her
medical treatment at the hospital. Medical Officer recorded the said
statement in the bed head ticket. Subsequently the parents of the
deceased and other relatives went to hospital to see her. During their
evidence they stated that the victim made oral dying declaration before
them to the effect that the appellants poured kerosene oil on her body and
set her in fire. Thus there are two contradictory dying declarations, one
recorded by the doctor and another stated by the related and interested
witnesses.
21. According to Mr. Ganguly, oral dying declaration is a weak piece of
evidence and its credibility is always doubtful. In support of his
contention he refers to a decision of the Supreme Court in Waikhom
Yaima Singh vs. State of Manipur reported in (2011) 13 SCC 125.
22. Mr. Ganguly further submits that during trial of the case defence
has examined four witnesses DW1 Rabi Sashi Pandi is the husband of the
deceased, DW2 Pranab Kanti Banerjee is a neighbor of Rabi Sashi, PW3
and PW4 are the Medical Officers.
23. Specific case of the defence is that on the date of occurrence the
husband of the deceased was with the help of shouldering iron. There was
no electricity and a table lamp was burning. Suddenly the said kerosene
lamp tumbled on the table and the lower portion of saree of the deceased
caught fire. The deceased tried to douse the fire bending downward.
Immediately upper portion of her saree caught fire. Seeing Rasmita
burning, Rabi Sashi took all garments from 'alna' and hugged her with the
cloths to douse fire from her body. Both of them raised alarm. Hearing
their cry the parents and sister of Rabi Sashi rushed to their rooms. Rabi
Sashi also received 60% burn injury and he was admitted to the same
hospital for about three months. After being discharged from the hospital,
DW1 was medically treated by PW4. From his cross examination it is
ascertained that Rasmita was taken to hospital by a neighbor and brother
in law of appellant no.1.
24. DW1 Pranab Kanti Banerjee is one of the neighbours who took
Rasmita to the hospital after she received burn injury. Family members of
Rabi Sashi took him to the hospital. It is ascertained from the evidence of
DW2 that he took the wife of Rabi Sashi to the female ward of the
hospital. At that point of time, she requested him to call her parents.
Accordingly, DW2 called her parents over phone. She also requested DW2
to look after her husband who also received burn injury. DW1 was
examined by Dr. Nirmalendu Kanjilal (DW3). It is found from his evidence
that DW1 Rabi Sashi suffered 60% burn injury. He was admitted to
hospital on 26th September, 2009 and discharged on 26th December, 2009
on request. As per the statement of the patient he received burn injury
while trying to save his wife from burning. The treatment sheets along
with bed head ticket of Rabi Sashi are collectively marked as Exhibit-A
during trial of the case. PW4 is another Medical Officer attached to Mercy
Hospital as plastic surgeon at the relevant point of time. After Rabi Sashi
was discharged from hospital, DW4 treated her medically for quite long
time.
25. According to Mr. Ganguly credibility of defence witness is similar to
that of a witness on behalf of the prosecution. From the evidence DW1 it
is clearly found that the deceased received injury accidentally. It is also
found that DW1 being the husband of the deceased tried his best to douse
fire from the body of his wife and in that process he also received 60%
burn injury. If a married wife is tortured and harassed by the parents-in-
law and sister-in-law on demand of dowry the husband cannot in all
probability be a mute spectator of such incident. Either he will support or
protest. It is important to note that the defacto complainant or any other
witnesses on behalf of the prosecution did not make any allegation
against the husband of the deceased in course of their evidence. On the
contrary the parents of Rabi Sashi gave marriage of his son with Rasmita
in the absence of her parents. During cross examination of DW1, it is
specifically taken by the prosecution that after marriage there was no
relation between the families. Thus, the parents of Rasmita severed all
connection and relation with their daughter. There was no allegation that
Rasmita was treated with cruelty by the appellants during her lifetime.
Under such backdrop, there is no reason to disbelieve defence version of
the incident.
26. Furthermore, as pointed out by Mr. Ganguly DW2 stated in his
evidence that the parents and sister of Rabi Sashi did not accompany
Rasmita to the hospital. Therefore, there was no occasion to tutor or
threatened Rasmita to give a false dying declaration to the Medical Officer
when he initially treated her.
27. Mr. Ganguly concludes pointing out that as to the death of Rasmita
two contradictory stories are available. One, narrated by the prosecution
to the effect that the deceased was tortured and harassed during her life
time by the appellants and finally on 26th September, 2009, they poured
kerosene oil on her body and ablazed her. On the contrary the defence
version is that Rasmita caught fire accidentally when a kerosene lamp
tumbled on the table in their room on the first floor. It is submitted by Mr.
Ganguly that when two views are forthcoming on the 'circumstances of
transaction which resulted in death' of Rasmita, the view favourable to
the defence should be accepted. On this score, he relies on a decision of
the Supreme Court in the case of Kali Ram vs. State of Himachal
Pradesh reported in (1973) 2 SCC 808.
28. Ms. Sukanya Bhattacharyya, learned P.P-in-Charge on the other
hand commences her submission saying that in most of the matrimonial
cases the incidents happening between the married lady and her
matrimonial relations are only known to the close relatives of the lady and
her husband. Therefore, it is not the rule of evidence as well as prudence
to reject the testimony of close relatives of deceased married lady on the
ground of interestedness. On the other hand, their evidence ought to be
considered as the best evidence because they are the persons who
naturally come to know about the incidents that took place inside the
closed door of the matrimonial home of a married lady. If a woman, after
her marriage is tortured, humiliated and harassed on demand of dowry,
the lady will naturally narrate such incidents to her parents and other
close relations. The learned P.P invites this Court to consider the evidence
of PW1 to PW5 keeping in mind the above proposition of appreciation of
evidence adduced by related witnesses in a case under Section
498A/304B of the Indian Penal Code.
29. First, she submits that marriage of the deceased was solemnised
with DW1 Rabi Sashi Pandit in the month of May 2008. She received burn
injury on her matrimonial home on 26th September, 2009 at 2.30 pm and
on the next day at about 1.30 am she succumbed to her injuries. Thus,
victim Rasmita had met with an unnatural death within one and half
years of marriage. It is found from the evidence on record that the parents
of the victim was informed by a neighbour of the locality where the
matrimonial home of Rasmita situates. She has raised a question as to
why the appellants did not inform the incident to the father of the
deceased immediately after the occurrence. Had it been a case of
accidental burn and the appellants had no role in such incident, the
natural and probable cause of action for them was to inform the parents
of Rasmita immediately after the occurrence but they remained
conspicuously silent. Only when Rasmita requested DW1 Pranab Kumar
Banerjee to call her parents, he informed the matter to the defacto
complainant over telephone.
30. It is further submitted by the learned P.P that marriage of Rasmita
with Rabi Sashi was the result of a love affair. Initially the parents of
Rasmita did not agree to such marriage. There might be dispute between
the two families over the said marriage. But in course of time, the defacto
complainant being the father of the deceased and his wife and other
relatives came to talking terms with Rasmita. PW1 stated that Rasmita
told over telephone that she was being tortured by her father-in-law,
mother-in-law and sister-in-law on demand of dowry of Rs.1 lakh and
ornaments. Said fact cannot be taken to be false and concocted only for
the purpose of this case. PW1 further stated that Rasmita came to his
house lastly on 12th September, 2009 and stated to him and his mother
that the appellants used to torture her both mentally and physically on
demand of dowry. Rasmita had met with an unnatural death only after 14
days of her last visit to her paternal home. PW1 to PW5 who are close
paternal relations of the deceased corroborated the evidence of each other
as to the demand of dowry and torture and harassment inflicted upon her
by the appellants, when she refused to ask her father to pay dowry as per
their demand. Considering such evidence on record the learned trial court
rightly held the accused person guilty for committing offence under
Section 498A/34 IPC and convicted and sentenced them accordingly.
There is no reason to disbelieve the evidence of PW1 to PW5 and hence no
occasion to interfere with the judgment passed by the trial court. She also
submits that she cannot dispute the proposition of law that a dying
declaration under Section 32(1) of the Evidence Act cannot be used for
convicting the accused under Section 498A/34 of the Indian Penal Code.
But the at same time, it is open for the court to consider that the
prosecution was able to prove that the accused persons continuously
tortured the victim on demand of dowry and ultimately caused her death
in unnatural circumstances.
31. With regard to charge under Section 304B/34 of the IPC, it is
submitted by the learned P.P-in-Charge that the victim died in unnatural
circumstances within one and half years of marriage and soon before her
death she was subjected to physical and mental torture on demand of
dowry. According to the learned P.P-in-Charge, the prosecution, in the
instant case was able to prove that the victim was subjected to cruelty or
harassment by the appellants for or in connection with demand of dowry,
soon before her death. The term "soon before" is not synonymous with the
term "immediately before". The said term would normally imply that the
gap should not be large between the cruelty or harassment and the death
in question, i.e there must be existence of proximity and live link between
the two. The determination of the period which can come within the term
"soon before" is a matter for the court, dependent upon the facts and
circumstances of the case. In the instant case from the evidence of PW1 it
is ascertained that the deceased went to matrimonial home lastly on 12th
September, 2009 and she had met with unnatural death within 14 days of
her last visit to her paternal home. On 12.09.2009 she also stated to her
parents and other paternal relations that she was harassed and tortured
by the appellants on demand of dowry. Therefore, the learned trial court
rightly applied the presumption of law contained in Section 113B of the
Indian Evidence Act.
32. For the reasons stated above the learned P.P-in-Charge submits
that there is no scope of interference and the instant appeal should fail.
33. On independent perusal of evidence on record the following
undisputed factual positions are found:-
i) Married of Rasmita and Rabi Sashi was the result of
love affairs between them, solemnised in the month of
May 2008.
ii) Rasmita received burn injury at her matrimonial home
on 26th September, 2009 and she died on 27th
September, 2009.
iii) The parents of Rasmita did not agree with their
daughter would marry Rabi Sashi as he was
unemployed.
iv) Marriage of the said two person was arranged
singularly by the father of the Rabi Sashi.
v) The parents or any other paternal relation of Rasmita
did not attend the said marriage.
vi) Even after marriage admittedly PW1, father of the
deceased or any other paternal relation of the deceased
never visited her matrimonial home on any occasion.
vii) Parents of Rasmita had no talking terms with
appellants.
viii) It is also admitted by PW1 that Rabi Sashi used to love
his daughter very much.
34. All such facts clearly suggest that the parents of the deceased did
not maintain any relation with the deceased after her marriage with Rabi
Sashi. I have already recorded that Rabi Sashi was examined as Dw1. In
his cross examination he stated there was no connection between two
families after their marriage. Except PW1 and PW3 (mother of Rasmita)
other three witnesses on behalf of the prosecution heard about the alleged
torture and harassment allegedly inflicted upon Rasmita by the appellants
from PW1 and PW3 and they had no direct knowledge about the incident.
35. It is stated by PW1 that he first came to know about the torture and
harassment on her daughter by the appellants on demand of dowry in the
month of March, 2009. In spite of getting such information, the defacto
complainant did not take any legal step to save her daughter from alleged
cruel treatment inflicted upon her by the appellant.
36. In Kantilal Martaji Pandor (supra) a married lady committed
suicide. Prior to her death she wrote a letter to police station stating, inter
alia, that her husband had starved deceased of food when she was
pregnant, spent her salary on his own family, besides subjecting her to
other mental cruelty. On such fact the Supreme Court was pleased to
hold that the prosecution failed to prove the charge under Section 498A of
the Indian Penal Code on the ground that the incident of cruelty and
torture as narrated by the deceased in her letter to police was not the
cause of suicide.
37. In the instant case PW1 and PW3 stated that their daughter told
them that she was subjected to cruelty on demand of dowry. The evidence
of other witnesses (PW2, PW4 and PW5) are in the nature of hearsay
evidence because they have no direct knowledge about the incident and
they deposed on the basis of what they heard from the parents of the
deceased.
38. In Inderpal vs. State of MP : (2001) 10 SCC 736 the Supreme
Court held as follows:-
"4. We will consider at first the contention as to whether there
is any evidence against the appellant which can be used
against him for entering upon a finding that he subjected
Damyanti to cruelty as contemplated in Section 498-A IPC.
PW1 father of the deceased and PW8 mother of the deceased
have stated that Damyanti had complained to them of her
plight in the house of her husband and particularly about the
conduct of the appellant. PW4 sister of the deceased and PW5
a relative of the deceased have also spoken more or less on
the same line. Exhibit P-7 and Exhibit P-8 are letters said to
have been written by Damyanti. In those two letters reference
has been made to her life in the house of her in-laws and in
one of the letters she said that her husband had subjected
her to beating.
5. Apart from the statement attributed to the deceased none
of the witnesses had spoken of anything which they had seen
directly. The question is whether the statements attributed to
the deceased could be used as evidence in this case including
the contents of Exhibits P-7 and P-8 (letters).
6. Before deciding that question we have to point out that the
High Court came to a conclusion that the allegation that she
committed suicide was not substantiated. A dying declaration
was recorded by the Executive Magistrate in which the
deceased had stated that she got burns accidentally from a
stove. If that be so, death could not be the result of either any
harassment or any cruelty which she was subjected to. In
this context we may point out that the State has not
challenged the finding of the High Court that death of
Damyanti was not due to commission of suicide.
7. Unless the statement of a dead person would fail within the
purview of Section 32(1) of the Indian Evidence Act there is
no other provision under which the same can be admitted in
evidence. In order to make the statement of a dead person
admissible in law (written or verbal) the statement must be as
to the cause of her death or as to any of the circumstance of
the transactions which resulted in her death, in cases in
which the cause of death comes into question. By no stretch
of imagination can the statements of Damyanti contained in
Exhibit P-7 or Exhibit P-8 and those quoted by the witnesses
be connected with any circumstance of the transaction which
resulted in her death. Even that apart, when we are dealing
with an offence under Section 498-A IPC disjuncted from the
offence under Section 306 IPC the question of her death is
not an issue for consideration and on that premise also
Section 32(1) of the Evidence Act will stand at bay so far as
these materials are concerned."
In conclusion the Supreme Court held that there is not iota of
evidence which can be admitted in law to be used in offence
punishable under Section 498A of the IPC
39. In the instant case, it is already recorded that after the marriage of
the deceased with DW1, the relation between two families were not
cordial. The parents of Rasmita was indifferent to her. Only after her
death the defacto complainant alleged that the deceased was subjected to
mental and physical torture on demand of dowry. During her life time her
parents did not keep any contact with the deceased. When the marriage of
the deceased was not accepted by her parents; when even after marriage
the newly wedded couple were not welcome by the defacto complainant;
when no cordial relation was established between two families which are
very normal after marriage of a boy and a girl, it is difficult to hold that
the deceased would visit her paternal home and narrated the incidents of
cruelty meted upon her allegedly by the appellants. I am in conformity
with the learned P.P-in-Charge that in a case under Section 498A of the
Indian Penal Code the parents and other relatives of the victim are the
best witnesses but under the facts and circumstances as stated above the
role of the witnesses seems to be absolutely interested and inimical
against the appellants and therefore only after the death of Rasmita the
defacto complainant alleged that he was subjected to physical and mental
torture on demand of dowry.
40. Learned trial court failed to consider this aspect of the matter and
wrongly placed reliance on a decision of the Supreme Court in the case of
Trimukh Maroti Kirkan vs. State Of Maharashtra reported in (2006)
10 SCC 681. In Trimukh, there was a positive evidence of the father of
the deceased that the husband and parents-in-law of the deceased used
to ill-treat her and used to harass her on account of non-payment of
Rs.25,000/- by her parents for the purpose of purchasing a tempo for her
husband. It was also proved in evidence that the father of the deceased
went to the matrimonial home of the deceased and requested her
husband and parents-in-law not to torture her on demand of Rs.25,000/-
and he has no financial capacity to make such demand.
41. Under such factual background the Supreme Court held that in a
case of cruelty on demand of dowry and dowry death, the close relatives of
the deceased are the best and natural witness because in a family dispute
the outsiders do not want to involve themselves and it is very difficult to
find out neighbouring witnesses to depose in a case under Section
498A/304B of the Indian Penal Code.
42. However, fate of every case depends on its peculiar facts and
circumstances. In the instant case, it is already recorded that parents of
the deceased did not accept their daughter's marriage with the son of the
appellant No.1. They never visited the matrimonial home of the deceased.
There was no talking term between two families. PW3 who is the mother
of the deceased unequivocally admitted that the husband of his daughter
used to love her very much. When a marriage was solemnized as a result
of love affair between two persons and the husband loves the wife very
much, is it possible to hold at the same time, the husband will shallow
torture and harassment upon his wife by his parents and sister? The
irresistible conclusion and reply to the above question must be in the
negative.
43. With regard to the charge under Section 304B/34 of the Indian
Penal Code, I like to record at the outset the following observation of the
Supreme Court in the case of Kamesh Panjiyar vs. State of Bihar : (2005)
2 SCC 388:-
"12.It is to be noted that Sections 304B and 498A, IPC cannot
be held to be mutually inclusive. These provisions deal with
two distinct offences. It is true that cruelty is a common
essential to both the Sections and that has to be proved. The
Explanation to Section 498A gives the meaning of `cruelty'.
In Section 304B there is no such explanation about the
meaning of `cruelty'. But having regard to common
background to these offences it has to be taken that the
meaning of `cruelty' or `harassment' is the same as prescribed
in the Explanation to Section 498A under which `cruelty' by
itself amounts to an offence. Under Section 304B it is `dowry
death' that is punishable and such death should have
occurred within seven years of marriage. No such period is
mentioned in Section 498A. If the case is established, there
can be a conviction under both the sections."
44. Therefore Section 498A and 304B IPC do not contain same
ingredients and they are not mutually inclusive. In the instant case, the
victim died within one year and few months of marriage. It is also proved
that she had met with an unnatural death. The learned trial judge drew
up the presumption of law on the basis of an alleged oral dying
declaration made by the victim to her parents when they came to the
hospital to see her. He also relied on the evidence of PW1 to PW5 to the
effect that on 12th September, 2009 the victim came to her paternal home
and told her parents that she was tortured and harassed by the accused
persons on demand of dowry. PW1 did not state in his FIR that on 12th
September, 2009 his daughter Rasmita came to his house and narrated
the incident of torture and harassment on demand of dowry for the last
time before her death to him and his wife. The said statement is
subsequent development at the time of adducing evidence by the
witnesses on behalf of prosecution. While the learned court below relied
on oral dying declaration allegedly made by the deceased that the
appellants poured kerosene oil on her body and set her in fire intending to
kill her, he completely overlooked the earlier statement made by the
deceased to the Medical Officer at the time of initial treatment to the effect
that when her husband was repairing a CD player with hot soldering iron
a kerosene lamp tumbled on the table and kerosene fell over the said hot
soldering iron and got fire accidentally. The said statement is the earliest
version of the occurrence recorded by Medical Officer who initially treated
her. Therefore there are two contradictory dying declarations, one written
and another oral and the first dying declaration must prevail because it
was recorded by an independent witness having no interest in the
outcome of the case.
45. Defence version is the same as recorded by the Medical Officer.
Moreover the defence version gets support from the evidence of
Investigating Officer (PW1) who stated on oath that during the course of
investigation he seized one soldering plug and one extension coil from the
place of occurrence by a seizure list dated 7th November, 2009. Seizure of
the above articles from the place of occurrence emboldens the defence
case that fire was accidentally in nature. It is needless to say that an oral
dying declaration is a weak piece of evidence in comparison to earlier
dying declaration made by the victim which was recorded by the doctor at
the time of her initial examination.
46. In view of the above discussion and on independent scrutiny of
entire evidence on record and the statutory provisions as well as the law
laid down by the Apex Court, this Court is of the view that the learned
trial judge erroneously convicted the appellants under Section
498A/304B/34 IPC and wrongly placed onus on inadmissible and weak
piece of evidence.
47. Therefore the order of conviction and sentence is liable to be set
aside.
48. Accordingly the instant appeal is allowed.
49. The judgment dated 13th May, 2015 and conviction and sentence
dated 14th May, 2015 passed by the learned Additional Sessions Judge,
Fast Track,2nd Court Kalyani, Nadia in Sessions Case no.22(05)
2011(Sessions Trial no.7(7) 2011) are set aside.
50. The appellants namely 1.Satish Chandra Pandit @ Sisir Pandit 2.
Smiriti Rani Pandit. 3. Simi [email protected] Sandipan Pandit are acquitted from
the charge, set at liberty and release from bail bond.
51. Let a copy of this judgment be sent to the trial court immediately
along with lower court record.
52. The appellants be set at liberty if they are in correctional home
forthwith on production of server copy of the judgment.
(Bibek Chaudhuri, J.)
