Calcutta High Court (Appellete Side)
Pradip Roy vs The State Of West Bengal on 20 April, 2023
In The hIgh CourT AT CAlCuTTA
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
CRA 379 Of 2021
Pradip Roy........ Appellant (In Jail)
With
CRA 380 of 2021
With
CRAN 1 of 2022
Kajal Roy & Anr....Appellants (In Jail)
Versus
The State Of West Bengal
For the Appellant s : Mr. Samiran Mondal, Adv.
: MR. Abhinaba Dan, Adv.
: Mr. Nitish Samanta, Adv.
For the State : Mr. Swapan Banerjee, Adv.
: Ms. Purnima Ghosh, Adv.
Hearing Concluded On : March 28, 2023
Judgment On : April 20, 2023
Md. Shabbar Rashidi, J.
1. Both the appeals are taken up together for
consideration as they emanate from the one and the
same judgment of conviction and order of sentence.
2. The two appeals are directed against the judgment of
conviction dated November 29, 2021 and order of
sentence dated November 30, 2021 passed by learned
Additional Sessions Judge, Bankura in connection with
Sessions Trial No. 05 (02) 2017 arising out of Sessions
Case No. 09 (11) 2016.
3. By the impugned judgment of conviction and order of
sentence, the appellants were convicted for the offences
punishable under Sections 498A/304B/34 of the Indian
Penal Code. The appellants were sentenced to suffer
rigorous imprisonment for two years each and to pay a
fine of Rs. 25,000/- each and in default of payment of fine
to suffer simple imprisonment for another six months for
the offence punishable under Sections 498A/34 of the
Indian Penal Code. The appellants were also sentenced to
suffer rigorous imprisonment for 10 years for the offence
punishable under Sections 304B/34 of the Indian Penal
Code. Both the sentences were directed to run
concurrently. One of the accused facing trial namely
Uttam Roy was, however, found not guilty of any of the
offences and acquitted.
4. One Sadhan Roy, lodged a complaint with the
officer-in-charge of Women PS of Sadar Subdivision,
Bankura on February 27, 2016 stating, inter alia, that
his second daughter Rupa Roy was married to the
appellant Pradip Roy as per Hindu customs and rites on
2nd Pous, 1421 BS. It was further stated that the
marriage was an outcome of a love affair for which no
money or ornaments were given in the marriage as
dowry. The written complaint further disclosed that the
said daughter of the de facto complainant informed him
and his wife that the members of her matrimonial house
started torturing upon her after two months of marriage
on demand of dowry. The de facto complainant paid Rs.
40,000/- to the appellant and the other in-laws on 4th of
Chaitra, 1421 and requested them not to inflict torture
upon the daughter of the de facto complainant.
5. It was further stated in the written complaint that
even after payment of such amount of dowry, the
daughter of the de facto complainant was subjected to
physical and mental torture every day. She was denied
proper food and clothes. On February 19, 2016
corresponding to 6th day of Phalgun, 1422 at about 10
o'clock in the night, the appellant Pradip Roy informed
over telephone that the daughter of the de facto
complainant was burnt. The son of the de facto
complainant namely Pradip Roy went to Gobindanagar
hospital and saw that the entire body of Rupa Roy,
except chest, was burnt. She disclosed to her brother in
the hospital that the appellants had done it to her and
set her ablaze. She requested her brother not to spare
them. The daughter of the de facto complainant died on
February 23, 2016.
6. On the basis of such written complaint, Bankura
Sadar Women PS Case No. 08/16 dated February 27,
2016 under Sections 498A/304B/34 of the Indian Penal
Code and Sections 3/4 of the Dowry Prohibition Act,
1961 was started against the appellant.
7. The police took up investigation and on completion
of investigation submitted charge sheet against the
husband and other in-laws of the victim on August 17,
2016 under the aforesaid Sections. Accordingly, charges
under Sections 498A/304B/34 of the Indian Penal Code
were framed against the appellant and other in-laws of
the victim on February 16, 2017.
8. In order to bring home the charges, the prosecution
examined 22 witnesses in all. In addition, the
prosecution also relied upon certain documentary as well
as material evidences.
9. Learned advocate for the appellants submitted that
the impugned judgment of conviction and order of
sentence is based on erroneous consideration of the
evidence. It has been contended referring to the evidence
of PWs 2, 5, 6, 7, 9, 10 and PW16 that the learned trial
court was not justified in convicting the appellants on the
basis of the evidence of interested witnesses.
10. Learned advocate for the appellant also
contended that learned trial Court arrived to pass the
impugned judgment and order completely ignoring the
evidence of independent witnesses.
11. It was also submitted by learned advocate for the
appellant that the learned trial court was not justified in
holding the statement of the victim made by the her
before her brother in the hospital as the dying
declaration of the victim and as such, a conviction secure
on the basis of such evidence cannot sustain. On such
proposition of law, the learned advocate for the appellant
has relied on a decision reported in (2000) 5 SCC 207
(Kans Raj Vs. state of Punjab).
12. Learned advocate for the appellant has also stated
that the prosecution has failed to establish the demand
of dowry. The witnesses examined on behalf of the
prosecution have not supported the case of the
prosecution so far as it relates to the demand of dowry by
the appellants. In that view of the facts, a conviction for
the offences punishable under Section 498A/304B of the
Indian Penal Code cannot be justified. It was also
submitted that the learned trial court has wrongly
ignored the legal presumptions envisaged under the
provisions of Section 113B of the Indian Evidence Act,
1872.
13. It was also contended on behalf of the appellants
that in the facts and circumstances of the case, a case
under Section 304B was not made out as there was no
proximity between the alleged time of inflicting torture
upon the victim and that of her actual death.
14. Learned advocate for the appellant also submitted
that the prosecution has failed to prove a motive behind
the alleged incident. Moreover, it is stated, there was no
explanation on the part of the prosecution with regard to
delay in lodging the First Information Report. Besides
that, certain contradictions in the evidence of the
prosecution witnesses have been referred by the
appellant to be very vital contradictions telling upon the
veracity of the prosecution case. It was contended that a
conviction on the basis of such contradictory testimony
cannot stand and is liable to be set aside.
15. On the other hand, learned advocate for the State
submitted that the prosecution has been able to bring
home the charges levelled against the appellants on the
basis of convincing evidence. The witnesses examined on
behalf of the prosecution have supported the case of the
prosecution as made out in the First Information Report
and they have been able to prove each and every
ingredient of the provisions under Sections 498A/304B of
the Indian Penal Code. According to learned advocate for
the State, the impugned judgement of conviction and
order of sentence is based on convincing evidence on
record and as such, does not warrant any interference.
Learned advocate for the State, submitted that the
impugned judgement of conviction and order of sentence
should be upheld.
16. As noted above the prosecution, in order to bring
home the charges, examined 22 witnesses in all.
17. One person from the village of the appellants
deposed as PW 1. In his the position, PW1 has stated
that he heard that the appellant in CRA N0. 379 of 2021
(hereinafter to be referred as first appellant for
convenience) got married and that he also heard that his
wife died as she caught fire while cooking. PW1 was
declared hostile by the prosecution and upon cross
examination on behalf of the prosecution, PW1 denied
having made any statement before the police. The
defence declined to cross-examine him.
18. The father of the victim deposed as PW 2. He stated
that the victim was his second daughter and she was
married to the first appellant on 2nd day of Pous and after
marriage she started residing at her matrimonial house
with her husband and other in-laws. The aforesaid
marriage was an outcome of a lover affair. PW 2 also
stated that after is such marriage, the accused persons
the started demanding Rs. 40,000 as dowry. He met the
aforesaid demand after two months of marriage but the
appellants again demanded money and started inflicting
torture upon his daughter. PW 2 further stated that on
the day of Sarswati Puja, he met his daughter for the last
time when she disclosed before him that she was
subjected to torture and she was worried as to how she
will stay there. He further stated that his daughter, the
victim, was admitted at Gobind Nagar hospital in bad
condition and that she was burnt by the accused
persons. PW 2 also stated that in the hospital, his
daughter made a statement before his son that she was
set ablaze by the accused persons and requested not to
excuse them. He further stated that his daughter
succumbed to the injuries. Hearing the news PW 2 lost
his senses. He lodged the written complaint after the
funeral ceremony of his daughter and upon overcoming
his mental depression. He also stated that the written
complaint was scribed by one Soma Ghosh as per his
instructions and PW 2 put his left thumb impression
upon the same. He identified the appellants in court. PW
2 was cross-examined on behalf of the appellants.
19. Another villager of the appellants was examined as
PW 3. He is also a hearsay witness. He also heard that
the wife of first appellant caught fire while cooking. This
witness was also declared hostile by the prosecution and
on cross examination by the prosecution, he denied
having made any statement before the police.
20. The scribe deposed as PW4. He has stated that on
February 27, 2016, he wrote a written complaint at
Women Police Station as per the instructions of PW2. He
tendered the written complaint which was marked as
Exhibit 1 and his signature thereon was marked as
Exhibit 1/a.
21. The mother of the victim was examined as PW 5.
She stated that the victim was her daughter and was
married to the first appellant on 2nd day of Pous. After
marriage, she went to her matrimonial house and resided
with her husband, the first appellant and other in-laws,
the appellants in CRA No. 380 of 2021 (hereinafter to be
described as the 2nd appellants for the sake of
convenience). She further stated that the accused
persons used to inflict torture upon the daughter on
demand of further dowry. She could pay a sum of Rs.
40,000/- as dowry.
22. PW5 also stated that her daughter informed over
telephone that the accused persons were demanding
further dowry. She called her daughter to her house
whereupon she came in the month of Magh. Later, her
son-in-law came and took her back. She also stated that
in the month of Falgun, the victim was burnt by the
accused persons. The first appellant informed the son of
PW5 and asked him to come to B.S.M.C. & H, Bankura.
The son of PW5 went to the hospital and there, her
daughter told him that she was burnt by the accused
persons. She asked him not to excuse them. Later the
victim died. In her cross-examination, PW5 stated that
the brothers of the first appellant Uttam and Manik used
to reside in separate mess.
23. A person from the paternal village of the victim was
examined as PW6. He stated that Rupa Roy of his village
was married to a person appellant on 2nd Pous, 1421B.S.
After such marriage, she went to her matrimonial house
and resided with the appellants. He also stated that the
elder brother of the victim was his friend. On one day his
friend told him that there was a dispute going on in the
matrimonial house of the victim and asked for his
suggestions. PW6, thinking of the conjugal life of the
sister of his friend, suggested him not to lodge a
complaint before the police and try to settle the disputes
amicably. PW6 further stated that 8/9 days prior to the
death of the victim, she came to her paternal house.
Upon enquiry, the victim told PW6 that she was
subjected to mental torture as nothing was given to the
groom in her marriage as they had married by fleeing
away. PW6 was also informed by the elder brother of the
victim that he had given some money to the in-laws of
the victim. The victim was taken back to her matrimonial
house by her husband. On February 20, 2016 the
brother of the victim informed PW6 that the victim was
admitted in the hospital on February 19, 2016 being set
on fire by the appellants.
24. Another villager from the paternal village of the
victim deposed as PW7. He stated that the victim Rupa
Roy was married to the first appellant and after marriage
she went to her matrimonial house and decided with the
appellants. He further stated that he used to hear from
the mouth of the elder brother of the victim that there
were frequent disputes at the matrimonial house of the
victim and the victim was subjected to torture on demand
of further dowry. He also stated that Rupa Roy died of
burn injuries, though it could not be said as to how she
sustained the injuries. PW7 also stated that the elder
brother of the victim told him that Rupa put herself on
fire after having disputes with her husband. He identified
the first appellant.
25. The brother of the first appellant was examined as
PW 8. This witness testified that the victim was married
to his brother, the first appellant but he stated in his
deposition that the appellants used to behave well with
Rupa. PW8 was declared hostile by the prosecution and
in his cross-examination on behalf of the prosecution, he
denied having made any statement before the police.
26. The cousin brother of the victim deposed as PW9.
He has stated that Rupa was married with the first
appellant on 2nd Pous, 1421 BS. After such marriage she
started residing at her matrimonial house. She was
subjected to torture by her husband and in-laws on
demand of Rs. 40,000/-. He further stated that although,
Rs. 40,000/- was paid to the appellants by his uncle but
the torture upon his cousin sister continued. PW9 also
stated that suddenly on February 19, 2016 at about 10
PM the elder brother of Rupa got information that the
accused persons had set fire on her body. PW9 also got to
know the same from the elder brother of the victim. He
has also stated that the elder brother of the victim went
to BSMC & H, Bankura where the victim told her that
she was set on fire by the appellants. The victim
succumbed to the injuries after four days. PW9 has also
stated that the police visited the hospital and conducted
inquest upon the dead body of Rupa Roy. He also signed
on the said inquest report which he tendered in evidence
(Exhibit 2). PW9 also signed on the magisterial inquest
report.
27. A villager of the paternal village of the victim
deposed as PW 10. He has stated that the victim was
married to the first appellant on 2nd Pous two years ago.
After marriage she went to her matrimonial house and
resided with her husband and other in-laws. PW 10
further stated that Rupa used to tell him that she was
having disputes with her in-laws regarding money. The
appellants demanded of his Rs. 40,000/- from her which
was later paid by her father to the appellants. The
disputes, however, did not end. He has also stated that
he came to know that the victim was admitted in the
hospital with burn injuries. He came to know from
Pradip, the brother of the victim that the appellants set
the body of the victim ablaze after assaulting. PW 10
tendered the photographs of the victim which were
marked as Mat. Exhibiti I series.
28. The aunt of the first appellant was examined as PW
11. She did not add any substance to either the case of
the prosecution or the defense.
29. The ambulance driver was examined as PW 12. He
carried Rupa wife of the first appellant to the hospital as
she had sustained burn injuries.
30. The police constable of Bankura PS deposed as PW
13. He has stated that on February 24, 2016 he went to
BSMC & H, Bankura. After inquest, he carried the dead
body under proper dead body challan for post-mortem
examination. He has tendered the dead body challan
(Exhibit 3). After the post-mortem examination he carried
certain articles like bangle, photographs et cetera and
handed over the same to the investigating officer who
seized the same under a seizure list. PW 13 also signed
on the said seizure list.
31. PW 14 is the another witness to the seizure list
dated March 3, 2016, through which, certain articles like
conch bangle, red bangle, photographs et cetera were
seized. He has proved his signature on the seizure list
dated March 3, 2016 (Exhibit 4/a).
32. The officer who conducted inquest over the dead
body of the victim deposed as PW 15. He stated that on
February 24, 2016 he conducted inquest on the dead
body of the victim Rupa Roy at BSMC & H, Bankura in
connection with Unnatural Death Case No. 108/16 dated
February 24, 2016 and prepared a report in this regard.
He has proved the inquest report (Exhibit 2/a) and his
signature thereon (Exhibit 2/b).
33. The brother of the victim has deposed as PW 16. He
has stated that the victim Rupa was his sister. She was
married to the first appellant Pradip on 2nd Pous of, 1421
BS. They had a love affair prior to their marriage. He has
further stated that after marriage Rupa went to her
matrimonial house and started residing there with the
appellants. PW 16 has further stated that Rupa used to
tell him that she was subjected to torture by her
husband and other in-laws on demand of money. A sum
of Rs. 40,000/- was given to the appellants. In spite of
receiving the aforesaid amount, torture upon the victim
continued.
34. PW 16 also stated that on February 19, 2016 at
about 10 PM, the husband of the victim informed him
that the sister of PW 16 had sustained burn injuries.
Accordingly PW 16 went to BSMC & H, Bankura and
could see that his sister had sustained burn injuries all
over her body except chest and face. He also stated that
upon enquiry, the victim Rupa Roy told him that her
husband and parents-in-law had set her body on fire.
She also requested PW 16 not to let them go. The sister of
PW 16 died on February 23, 2016 at about 2.30 p.m. An
inquest was conducted upon the dead body in his
presence and he signed on such inquest report (Exhibit
2/C). He also came to have signed on the magisterial
inquest report. PW 16 further stated that his sister was
carrying when she died.
35. PW 16 recorded his statement before the Magistrate.
He proved his signature is on such statement (Exhibit 5
series). PW 16 was cross-examined on behalf of the
defence. However, nothing favourable appears to have
been extracted from such cross-examination.
36. The autopsy surgeon was examined as PW 17. He
has stated that on February 24, 2016 he conducted post
mortem examination on the dead body of the victim Rupa
Roy in connection with Bankura PS UD Case No. 108
dated February 24, 2016. Upon such examination, PW 17
was of the opinion that the death was due to antemortem
burn injuries. He tendered the post-mortem report which
was marked as Exhibit 6.
37. The executive Magistrate who conducted inquest on
the dead body of the victim, deposed as PW 18. He has
stated that on February 24, 2016 he held an inquest
report over the dead body of the victim Rupa Roy in
connection with Bankura PS UD Case No. 08 dated 724
2016.
38. The medical officer of BSMC & H was examined as
PW 19. He has stated that on February 19, 2016 at 10.
47 PM, a patient namely Rupa Roy was admitted in the
burn unit of BSMC&H with eighty percent burn injuries
on. PW 19 had attended the said patient. He has
tendered the Bed Head Ticket under his pen and
signature (Exhibit 7 collectively). He further stated that
the victim died on February 23, 2016. In his cross-
examination, PW 19 has stated that at the time of
admission the patient party disclosed about accidental
injury of Rupa Roy during cooking food.
39. Another doctor of BSMC & H deposed as PW 20. He
has also stated that the victim Rupa was admitted in the
hospital with burn injuries on February 19, 2016 at
10:47 PM and she died at 3 PM on February 23, 2016.
PW20 stated to have attended the patient together with
PW19.
40. The recording officer deposed as PW 21. She stated
that on February 27, 2016 she was posted at Women PS
Sadar Bankura. She stated that on the said date she
received a written complaint from PW to and started
Bankura Women PS Case No.8/16 dated February 27,
2016 under Sections 498A/304B/34 of the Indian Penal
Code and Sections 3/4 of the Dowry Prohibition Act.
PW21 filled up the formal first information report (Exhibit
8).
41. The investigating officer deposed as PW 22. She has
stated about the course of investigation of the case. She
has stated that being endorsed with the investigation of
the case she visited the place of occurrence and prepared
rough sketch map with index thereof (Exhibit 9 and 9/1),
recorded the statement of the witnesses under Section
161 of the Criminal Procedure Code. They arrested the
accused persons, arranged for recording statement of
witnesses under Section 164 of the Code of Criminal
Procedure. In course of investigation he also collected
and seized several articles belonging to the victim
together with the medical reports under proper seizure
list. On completion of investigation, PW 22 submitted
charge sheet on August 17, 2016.
42. Upon completion of the evidence on behalf of the
prosecution, the appellants were examined under Section
313 of the Code of Criminal Procedure. The appellants
claimed that the allegations made against them were
false and the investigation was not done properly.
Although, the appellants gave out not to adduce any
defense witness, nevertheless, the first appellant, Pradip
Roy deposed as DW1.
43. In his deposition, DW1 stated that the victim Rupa
Roy was his wife. She died of burn injuries from the fire
of the stove. He further stated that the incident occurred
at about 9.00/9.30 pm. At that time he was in the
locality. Hearing hue and cry, he came back and found
his wife in injured condition. He tried to save his wife and
as a result, he himself sustained burn injuries on his
hand. His wife was admitted at the BSMC & H in the
night of the incident. DW1 further stated that he was
himself admitted at BSMC & H for treatment where he
remained admitted for four days. He was discharged on
February 24, 2016. DW1 tendered his discharge
certificate issued by the BSMC & H which was marked as
Exhibit A, upon objection from the prosecution.
44. In his cross examination, DW1 admitted that his
marriage with the victim was outcome of a love affair. He
further admitted that the brother of his wife Pradip Roy
came to meet the victim on the night of admission of
Rupa at BSMC & H. He, however, denied the payment of
Rs. 40,000/- as dowry after the marriage and that the
victim used to be tortured by him or other in-laws on
demand of dowry. He also denied that the victim had
disclosed to her brother that she was assaulted by him
and other family members and was set on fire by pouring
kerosene oil.
45. PW1 also admitted in his cross examination that the
discharge certificate produced by him (Exhibit A) did not
contain any seal and stamp and that his residence at
village Bhedua was not disclosed in such certificate. He
also denied a suggestion advanced to him that he had
deposed falsely that Rupa sustained burn injuries due to
bursting of stove. He admitted that the burst stove was
not shown to the police.
45. According to the case made out by the prosecution,
the victim was married to the first appellant Pradip Roy.
After such marriage, she went to her matrimonial house
and resided with the appellant in matrimony. It was
further the case of the prosecution that while so residing
at her matrimonial house, the victim was subjected to
physical and mental torture by the appellant by her
husband and other in-laws i.e. the appellants on demand
of further dowry. A sum of Rs. 40,000/- was once paid by
the parents of the victim to the appellant but the torture
upon the victim continued. Ultimately, the victim was set
ablaze. She was admitted to the hospital with burn
injuries and ultimately, she succumbed to such injuries
in course of her treatment. According to the case of the
prosecution, the victim was admitted into the hospital for
injuries on February 19, 2016. The doctor who attended
her has deposed as PW19 and stated that on February
19, 2016 at 10.47 pm, a patient i.e. the victim was
admitted in the burn unit of BSMC & H with a history of
80 percent burn injuries. According to PW19, the patient
was admitted through emergency department of the
hospital. He attended the said patient along with another
doctor. PW19 also proved the bed head ticket regarding
the treatment of the victim (Exbt. 7 collectively). The
assistant professor attached to BSMC & H was examined
as PW20. He has corroborated the testimony of PW19
regarding admission of the victim with eighty percent
burn injuries. He also proved the relevant entries in the
bed head ticket. Therefore, from the evidence of PW19
and PW20, as well as, the testimony of Exbt. 7 series it is
quite evident that the victim was admitted with 80%
injuries in BSMC & H, Bankura on February 19, 2016.
The victim was under the treatment of PW19 and PW20
and ultimately, she died on February 23, 2016 at 3 pm.
After such death of the victim, an inquest was conducted
over her dead body and thereafter, a post mortem
examination was conducted. The autopsy surgeon
deposed as PW 17. He conducted the post-mortem
examination of the dead body of the victim and tendered
the post-mortem report ( Exbt. 6) The Exhibit 6 goes to
show that the autopsy surgeon in course of post-mortem
examination noted the injuries found on the dead body of
the victim:- "Infected ulcer forming burn injuries
present all over the body except face, head, anterior
and posterior aspect of thorax including both
shoulder joints, antero-lateral aspect of Rt. Upper
limb and external genitalia, both foot including both
sale. All the injuries showed evidence of vital
reaction. No other injury either revealed or concealed
could be detected even after careful dissection and
examination with the help of a hand lens."
46. In the opinion of PW17, the case of the death of the
victim was due to the effect of an antemortem burn
injuries as noted in the post mortem report. Therefore,
inconsideration of the evidence adduced by PW17
together with the testimony of Exhibit 6, it can
conclusively be held that the victim died in the
circumstances which were unnatural. From the materials
on record, it transpires that the victim was married to the
first appellant in the year 1421 B.S. and the incident took
place in month of Falgun 1422 B.S. corresponding to
February 19, 2016. The incident appears to have taken
place within a year of the marriage of the victim with the
appellant. A case has been set out by the prosecution
that the victim married the first appellant out of love
affair between them. They fled away and married each
other. For such reason, no dowry was given in their
marriage. However, it is the case that when the parents
and another family members of the victim accepted the
marriage between the victim and the first appellant, the
victim went to matrimonial house and resided with her
husband and other in-laws i.e. the appellants. In course
of such state of the victim at her matrimonial house, it is
alleged that the victim was subjected to physical and
mental torture by the appellant on demand of further
dowry. PW2 in his deposition has stated that after
marriage of the victim, the appellant started demanding
Rs. 50,000/-. PW2 made the aforesaid demand of Rs.
40,000/- to the appellants after two months of the
marriage of the victim but the appellants continued with
the torture upon the victim on demand of further dowry.
PW1 has categorically stated in his deposition that he
was reported by the victim that she was subjected to
torture by the appellants on demand of further dowry and
that she was worried as to how she will stay at her
matrimonial house. Later on, the victim was admitted in
the hospital and the son of PW1 was informed over
phone that she sustained burn injuries. When PW16, the
son of the PW1 went to meet his sister in the hospital,
she is said to have disclosed before PW16 that she was
set on fire by the appellant on demand of further dowry
and requested PW16 not to spare the appellants. Similar
statements were made by the mother of the victim PW5, a
co-villager PW6, PW9 and PW10.
47. All the aforesaid witnesses have corroborated and
supported the case of the prosecution so far as the
marriage of the victim with the first appellant is
concerned. The said witnesses have also testified that the
victim went to her matrimonial house and resided with
the appellants and that she was subjected to torture by
the appellants on demand of further dowry.
48. It is a fact; there are no eyewitnesses so far as the
factum of torture inflicted upon the victim is concerned.
However, the parents of the victim PW1 and PW5 have
stated that they were informed by the victim herself that
she was subjected to torture by the appellants. Similarly,
PW10, one of the uncles of the victim also claimed that
the victim herself disclosed before him that she was
having dispute with her in-laws regarding money and
that the accused persons demanded Rs. 40,000/- from
her.
49. A friend of the brother of the victim, namely PW6,
also corroborated the case of the prosecution. He has
stated that earlier he was informed by the brother of the
victim about some disputes at the matrimonial house of
the victim. Later on, the victim came to her paternal
house 8/9 days prior to her death and at that time, she
disclosed before PW6 that she was subjected to mental
torture on the ground that nothing was given to the bride
groom at the time of marriage. PW6 also claimed that the
brother of the victim (PW16) had told him that some
money was given to the in-laws of the victim and
thereafter, the husband of the victim took her back to her
matrimonial house.
50. It is quite evident from the materials on record that
the victim and the first appellant had a love affair and
they married each other after eloping from their
respective houses. For this reason, nothing was given in
the marriage as dowry. The evidence also discloses that
the demand for dowry started after two months of the
marriage, when the victim started residing at her
matrimonial house.
51. The parents of the victim, PW2 and PW5 have stated
that the victim had spat at her matrimonial house over
demand of dowry and that, they once paid ₹.40, 000/- as
dowry to the appellants and it was on such payment, the
victim was taken back to her matrimonial house by the
fist appellant. They had requested the appellants not to
inflict torture upon the victim but the torture continued.
The appellants demanded further dowry. Both these
witnesses were reported by the victim herself that she
was subjected to torture by the appellants on demand of
dowry. They were the persons whom the victim would
naturally have informed about her plight at her
matrimonial house and she actually did so.
52. PW16, the brother of the victim, was first informed by
the first appellant about the mishap and burn injuries
sustained by the victim on the day of incident. He
naturally, visited his sister in the Hospital where he
found the victim with burn injuries all over her body
except chest and face. The injuries found by the doctor
on the person of the victim are quite commensurate to its
description narrated by PW16. The attending doctor also
did not find any injury on the face and chest of the
victim.
53. Moreover, the victim is said to have made a dying
declaration before PW16 in the hospital to the effect that
the appellants were responsible for her injuries. She is
said to have stated to her brother PW16 that her
husband and in-laws had set fire on her body. She
requested her not to spare the appellants. The victim died
on February 23, 2016 out of the burn injuries.
54. So far as the alleged mishap and the victim
sustaining burn injuries are concerned, it is admitted
position that the victim sustained burn injuries and was
admitted in the hospital for the injuries and ultimately
died of such injuries. It is the case of the prosecution that
the victim was set on fire by the appellants in connection
with demand of dowry. On the contrary, the defense has
come up with a case that the victim caught fire while
cooking, ostensibly an accidental situation.
55. In order to prove the case so set forth, the defense
adduced defense witness. The first appellant himself
deposed as DW1. He stated that at the relevant time, he
was in the locality and upon hearing a hue and cry
returned to his house and found his victim wife in an
injured condition. No one from the locality has been
examined on behalf of the defense with whom the first
appellant was then sitting or who could have testified the
factum of such hue and cry.
56. PW1 also stated that he, upon seeing the victim in
burning condition, tried to douse the fire and in such
endeavour, the first appellant himself sustained burn
injuries. He was treated for such injuries being admitted
in the same hospital for a few days. He was discharged
after such treatment. In order to prove his discharge,
DW1 proved a discharge certificate (Exhibit A). No doctor
was examined who attended the first appellant for his
injuries. No medical document has been brought forth on
behalf of the defense to prove the nature of injuries
sustained by the first appellant. In fact, there is nothing
on the record to establish that the first appellant actually
sustained any burn injuries and he was treated for such
injury.
57. Exhibit A was proved by PW1 subject to objection
on behalf of the prosecution. Apparently, Exhibit A was
proved without complying the provisions of Section 65 of
the Indian Evidence Act, 1872. Admittedly, the said
document did not contain the official seal et cetera, of the
issuing authority. The said document also cannot be said
to be a public document envisaged under the provisions
of Section 74 of the Act of 1872. It was also admitted that
the identity of the first appellant on such document was
not properly disclosed. In that view of the facts, we have
no hesitation to hold that the objection noted in the proof
of Exhibit A was not discharged in accordance with law
and as such, the said document cannot be relied upon.
Therefore, it can be safely held that the defense has
miserably failed to prove that the first appellant
sustained burn injuries while trying to douse the fire or
that he was treated for such injuries.
58. In the facts and circumstances of the case, the
prosecution appears to have established that the victim
was the wife of the first appellant. She died within seven
years of her marriage with the first appellant. The
prosecution has also been able to prove that the victim
sustained burn injuries being set on fire by the
appellants and that she was so set on fire in connection
with demand of further dowry. It also appears that the
prosecution has sufficiently prove that the victim was
subjected to physical and mental torture at the hands of
the appellants in both the appeals i.e. her husband and
the in-laws.
59. In the case of Kans Raj (supra), the Hon'ble Supreme
Court noted the implications of the words 'soon before'
and it was observed by the Hon'ble Supreme Court that
the term was not synonymous with the term 'immediately
before'. The Hon'ble Supreme Court laid down that if the
cruelty or harassment or demand for dowry is shown to
have persisted, it shall be deemed to be soon before
death' if any other intervening circumstance showing the
non-existence of such treatment is not brought on record,
before the alleged such treatment and the date of death.
60. The Hon'ble Supreme Court, in the aforementioned
judgment, also laid down that the demand of dowry
cruelty or harassment based upon such demand and the
date of death should not be too remote in time which, in
the facts and circumstances, be treated as having become
stale enough. No presumption under Section 113 B of the
Evidence Act would be drawn against the accused if it is
shown that after the alleged demand, cruelty or
harassment to dispute stood resolved and there was no
evidence of cruelty and harassment thereafter.
61. In the present case, however, we have already noted
that the death of the victim occurred within one year of
marriage. There were consistent and continuous torture
inflicted upon the victim without considerable time gap or
any intervening settlement of dispute to discard a
presumption and under Section 113B of the Indian
Evidence Act.
62. In the facts and circumstances of the case and the
evidence adduced on behalf of the prosecution, we are of
the view that the Learned Trial Court was quite justified
in awarding conviction on the basis of the presumption
under Section 113B of the Indian Evidence Act.
63. Therefore, on the basis of aforegone discussions, we
are convinced that the prosecution has been able to prove
the charges leveled against the appellants/convicts with
the help of convincing evidence. The impugned judgment
of conviction dated November 29, 2021 and order of
sentence dated November 30, 2021 passed by the learned
additional Sessions Judge, Bankura in connection with
Sessions Trial No. 05 (02) 2017 appears to be well
founded on the basis of convincing evidences, sufficient
enough to base a conviction upon and does not warrant
interference in the facts and circumstances of the case.
We affirm the same.
64. Accordingly, both the appeals being CRA 379 of
2021 and CRA 380 of 2021 are hereby dismissed.
65. In view of the disposal of the appeals, no
interlocutory application survives. Consequently,
connected applications, if any, shall stand dismissed.
66. Trial Court records along with a copy of this
judgment and order be sent transmitted, at once, to the
learned Trial Court for necessary action.
67. Period of detention already undergone by the
appellants shall be set of against the substantive
punishment in terms of the provisions contained in
Section 428 of the Code of Criminal Procedure.
68. Urgent Photostat certified copy of this order, if
applied for, be given to the parties on priority basis upon
compliance of all formalities.
[MD. SHABBAR RASHIDI, J.]
69. I agree.
[DEBANGSU BASAK, J.]
