[Cites 35, Cited by 0]
Delhi High Court
Jaideb Dutta vs State on 6 February, 2026
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 02.02.2026
Judgment pronounced on: 06.02.2026
+ CRL.A. 416/2016
JAIDEB DUTTA .....Appellant
Through: Mr. Manoj K. Srivastwa, Mr. F.I.
Choudhury and Mr. David
Choudhury, Advocates.
versus
STATE .....Respondent
Through: Mr. Pradeep Gahalot, APP for the
State along with W/SI Inghumnaro,
P.S. New Ashok Nagar.
CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT
CHANDRASEKHARAN SUDHA, J.
1. In this appeal filed under Section 374 of the Code of
Criminal Procedure, 1973 (the Cr.PC.), the sole accused, in
Sessions Case No. 88/2011 (New SC No. 551/2016) on the file of
the Additional Sessions Judge (FTC), E-Court, Shahdara,
Karkardooma Court, Delhi assails the judgment dated 10.02.2016
and order on sentence dated 12.02.2016 as per which he has been
convicted and sentenced for the offences punishable under Section
498A and 304B of the Indian Penal Code, 1860 (the IPC).
2. The prosecution case, in brief, is that Soma Dutta, the
daughter of PW5 and PW6 was married to the accused on
01.05.2006 as per the rites and customs of the community to which
they belong. Pursuant to the marriage, Soma Dutta and the accused
were residing together in the latter's house. However, 1 ½ years
after the marriage and till her death on 23.06.2011, the accused
subjected his wife to continuous physical and mental harassment
by demanding more dowry. Due to the constant mental and
physical harassment, Soma Dutta committed suicide by hanging
herself to death on 23.06.2011. Hence, as per the final
report/charge-sheet, the accused is alleged to have committed the
offences punishable under Sections 498A, 302 and 304B IPC.
3. On the basis of Ext. PW3/D FIS of PW5, mother of the
deceased, given on 24.06.2011, Crime No. 190/2011, New Ashok
Nagar Police Station, i.e., Ex. PW1/A, FIR was registered by
PW12, SHO. PW12 conducted investigation into the crime and on
completion of the same, filed the charge-sheet/final report dated
24.06.2011 alleging commission of the offences punishable under
the aforementioned sections.
4. On appearance of the accused before the jurisdictional
magistrate pursuant to receipt of summons, copies of all the
prosecution reports were furnished to him as contemplated under
Section 207 Cr.PC. Thereafter, in compliance of Section 209
Cr.PC, the case was committed to the Court of Session concerned.
5. When the accused appeared before the trial court, as per
order dated 20.10.2011, a Charge under Sections 498A, 304B and
302 IPC was framed, read over and explained to the accused, to
which he pleaded not guilty.
6. On behalf of the prosecution, PWs.1 to 12 were examined
and Ext.s PW1/A-B, PW1/D, PW3/A-E, PW4/A, PW5/A1 to A6,
PW5/B, PW5/DA-DB, PW5/DY, PW-6/A, PW7/A, PW8/A-C,
Mark PW9/DA, PW10/A1 to A7, PW10/A8 to A14, PW12/A to C,
PW12/D1 to D5, PW12/X1 too X11, Mark 12/X12, Mark
PW18/X18 to X23, Mark PW11/A and Mark PW6/A, Mark
PW5/DX were marked in support of the case.
7. After the close of the prosecution evidence, the accused
was questioned under Section 313(1)(b) Cr.PC with regard to the
incriminating circumstances appearing against him in the evidence
of the prosecution. The accused denied all those circumstances and
maintained his innocence. He submitted that he has been falsely
implicated in the case and denied demanding dowry.
8. After questioning the accused under Section 313(1)(b)
Cr.PC., compliance of Section 232 Cr.PC. was mandatory. In the
case on hand, no hearing as contemplated under Section 232
Cr.PC. is seen done by the trial court. However, non-compliance of
the said provision does not ipso facto vitiate the proceedings unless
omission to comply with the same is shown to have resulted in
serious and substantial prejudice to the accused (See Moidu K.
versus State of Kerala, 2009 (3) KHC 89; 2009 SCC OnLine
Ker 2888). In the case on hand, the accused has no case that non-
compliance of Section 232 Cr.PC. has caused any prejudice to
him.
9. On behalf of the accused, DW1 to DW5 were examined
and Exts. DW2/A, DW3/A, DW3/B, DW5/A1 to A16, DW5/B,
DW5/D and Mark A were marked. The accused offered himself as
a witness and hence, was examined as DW5.
10. On consideration of the oral and documentary evidence
and after hearing both sides, the trial court, vide the impugned
judgment and order on sentence, found the accused guilty of the
offences punishable under Section 498A and 304B IPC and
accordingly, sentenced him to undergo rigorous imprisonment for
a period of 7 years and fine of ₹20,000/- for the offence
punishable under Section 304B IPC, and in default of payment of
fine, to undergo rigorous imprisonment for six months and to
rigorous imprisonment for a period of 3 years and fine of ₹10,000/-
and in default of payment of fine, to rigorous imprisonment of 3
months for the offence punishable under Section 498A IPC. He
has been acquitted of the offence punishable under section 302IPC.
The sentences have been directed to run concurrently. Benefit
under Section 428 Cr.PC has also been granted. Aggrieved, the
accused has come up in appeal.
11. It was submitted by the learned counsel for the appellant
that the prosecution has failed to establish the essential ingredients
of Sections 304B and 498A IPC. It is an admitted position that
there was no demand for money or dowry at the time of marriage
or immediately before her death. The learned counsel drew the
attention of this Court to Exts. DW5/A1 to A16 to canvass the
point that the appellant was in fact regularly sending money to the
parents of the deceased and therefore it was improbable for the
appellant to have harassed the deceased demanding more dowry.
It was submitted that there was no complaint given against the
appellant by the deceased during the entire duration of their
marriage. The essential ingredient in Section 304 IPC, that it has to
be shown that "soon before" her death the deceased was subjected
to cruelty, has not been proved. In fact, shortly before her death,
the deceased had invited her mother to attend her son's birthday.
He further pointed out that the post-mortem report also states that
there was no injury on the deceased. It was also submitted that
under Section 498A IPC, the nature of harassment must be such as
to drive a woman to commit suicide, however, the allegations of
harassment against the appellant are vague, omnibus and general in
nature. Even assuming that the allegations are true, it was only
normal wear and tear of married life and not serious enough to
drive a woman to commit suicide, and so Section 498A IPC is not
made out. He further submitted that PW6, father of the
deceased,has not fully supported the prosecution case and the
testimony of PW5, the mother of the deceased, is an improved
version of her earlier statements.
12. Per contra, it was submitted by the learned Additional
Public Prosecution that the cause of death stands proved, that is, by
hanging and the death occurred within seven years of marriage.
The testimony of PW5, corroborated by the testimony of PW6 and
PW9, establish that there was a demand of dowry and that the
appellant was harassing the deceased for the same. The allegation
made is only qua the husband and not against any other member(s)
of his family, therefore, the testimony cannot and need not be
doubted. It was also contended that the expression "soon before"
does not mean immediately before her death but is a relative term
and is to be understood in the facts and circumstances of each case.
Reference was made to Section 106 of the Evidence Act to state
that since the death occurred inside the matrimonial home, the
special knowledge of the circumstances lies with the appellant and
denial simpliciter is not sufficient and that the appellant is required
to explain how and under what circumstances the deceased
committed suicide, which he has failed to do. Therefore, there is
no infirmity in the impugned judgement calling for an interference
by this court, argued the prosecutor.
13. Heard both sides.
14. The only point that arises for consideration in this appeal
is whether the conviction entered and sentence passed against the
appellant/accused by the trial court are sustainable or not.
15. I will briefly refer to the oral and documentary evidence
led on by the prosecution in support of the case. PW5, the mother
of the deceased, gave Ext. PW3/D FIS on the basis of which Ext.
PW1/A FIR was registered. The gist of the statement of PW5 in
Ext. PW3/D reads - "We gave dowry during the marriage out of
our own will. About one and a half years after the marriage, my
son-in-law started troubling my daughter. He used to beat my
daughter and used to say, "Go to your maternal home and bring
money". My son-in-law has an illicit relationship with his Bhabhi.
My daughter told me these things. When my daughter used to
object to these things, my son-in-law used to say to her to leave her
maternal family members. For the last three years, they have been
living in Delhi. My daughter also has a son. He used to harass my
daughter over every small issue. On 23.06.2011 at 9:00 AM, my
son-in-law called me and told me that my daughter had
died..........."
15.1. PW5 when examined before the trial court, deposed
that the marriage of her daughter to the accused was solemnised in
a simple manner and that they had given dowry as per their own
accord. However, the accused was not satisfied with the dowry
articles given. When her daughter was 04 months pregnant, the
accused left the deceased at her residence. The accused used to tell
her daughter that her parents had given less dowry and he used to
keep asking her to bring cash from her parents. Her daughter had
told her about this demand made by the accused. After her
daughter delivered a baby boy, the former continued to reside in
her house till the boy was 09 months old. All the expenses for her
daughter's delivery was borne by the parents. Thereafter, the
accused took her daughter and grandson to his residence at New
Ashok Nagar, Delhi at which time she also accompanied them.
The accused then demanded ₹ 5 lakhs for buying house and other
goods. According to PW5, she assured him that she would try to
arrange the money and then return to her house. However, she was
unable to arrange the money and therefore could not meet the
demand of the accused. After about 04 months, the accused again
left her daughter and her grandson at her house in West Bengal.
Her daughter complained that the accused was not giving her food
to eat but still insisted that she should live with the accused in
Delhi. Therefore, she took her daughter to the house of the accused
in Delhi. PW5 further deposed that she had taken her daughter
from Delhi to West Bengal on 6.12.2010 for a ceremony at her
home. When her daughter returned to her matrimonial house, the
latter was beaten up by the accused and his family, as her daughter
was unable to meet the demand for money made by the accused.
Pursuant to the same, her daughter returned with her son to her
house. The accused then invited her daughter back in connection
with Kali Puja to his house at Howrah. PW5 deposed that pursuant
to that she along with her husband, daughter and her younger
daughter's son-in-law went to the house of the accused at Howrah
on 05.04.2011. Her daughter Soma remained at the house of the
accused at Howrah when she and her family returned home. On
6.04.2011, the accused again left Soma at their house. The accused
and Soma did have a return ticket to Delhi on 07.04.2011 but the
accused refused to take Soma along with him. Therefore, they took
their daughter Soma to the railway station, at which place the
accused asked Soma whether she had brought the money as
demanded by him from her parents. Soma replied that she had not
asked her parents for the money. Hearing this reply, the accused
told Soma that he would deal with it after they reached Delhi. This
fact was told by Soma to her younger sister who thereafter
informed her. While at Delhi, her daughter used to telephone her
and complain that she and her son were not being provided food by
the accused and that the accused was beating her up. On
21.06.2011, she spoke to her daughter for the last time on the
telephone on which day Soma invited her to the birthday of her
son. On 23.06.2011 at about 8.30 A.M., she received a telephone
call from the hospital that her daughter Soma is dead. They
immediately rushed to the LBS hospital in Delhi. Her statement,
that is, Ext. PW3/D was recorded by the SDM. At this juncture, the
prosecutor is seen to have sought the permission of the court to
'cross examine' the witness on the ground that 'her testimony is
not in complete consonance.' This request was allowed by the trial
court.
15.2 The further examination by the learned Additional
Public Prosecutor reads thus:-
"................It is correct that my daughter informed me that
accused was having illicit relations with his sister in law It is
correct that my statement was also recorded by the police. It is
correct that we tried to 'make the accused understand that we
were poor people and not in a position to make his demand of
Rs.5 lacs but he did not agree and continued beating my
daughter. It is correct that whenever Soma used to complaint
us, we used to advise her to complain the police but she used to
say that she did not want to spoil her family and also used to
say that accused may improve after his son grows up. It is
correct that accused had demanded Rs.5 lacs again in April
2011 when my daughter came at my house. It is correct that at
the railway station also I and my husband had tried to counsel
the accused but he told that he would think only after getting
Rs.5 lacs. It is correct that on 21.06.11 my daughter had also
informed me on telephone that accused was harassing her and
demanding Rs.5 lacs and she told me "jeena mushkil ho raha
hai" It is correct that when I asked her to complain the police
but she refused saying that it would spoil her family life. When
we reached Delhi, at that time accused was in police custody.
The cremation ceremony of my daughter was performed by my
husband and the uncle of Soma I had sent 11 photographs
Mark PW5/A (collectively) by post to the police................"
15.3. PW5 in her cross examination denied the suggestion
that there was never any demand for dowry made by the accused
and his family. She admitted her statement in Ext. PW3/D that
they had given dowry articles at the time at the time of the
marriage as per their own wish. She admitted that she had not
stated to the SDM that the accused was not happy with the dowry
articles given by them at the time of the marriage. According to
PW5 she was not in a fit state of mind to give such details. PW5
further admitted that she had visited her daughter in Faridabad
only once and that too about one year after her daughter started
residing there. She stayed with her daughter in Faridabad for about
a week at which time her daughter was living happily with the
accused. PW5 further deposed that her daughter had told her about
the illicit relation of the accused with his bhabhi. PW5 further
reitreated that the accused had demanded ₹ 5 lakhs for buying a
house and other goods. PW5 further deposed that she had in fact
stated to the police that her daughter used to inform her over the
phone that the latter was not being provided food and that the
accused used to beat her up. PW5 denied the defence case that she
and her husband used to pressurise the accused to give money to
them for buying a new house and that the accused on several
occasions had transferred an amount of about ₹ 1.5 lakhs to the
account of her husband. She also denied the defence case that
when the accused came to their home on 31.03.2011 and
01.04.2011 they had beaten up the accused or that the police had
lodged a Kalandra under Section 107 and 151 CrPC.
15.4 PW5 is seen to have been recalled on 16.09.2014 and
examined further. On the said day, she brought the original pages
of a diary alleged to have been written by her daughter on
25.03.2010. They were stated to be the originals of Ext.
PW12/X12 to Ext. PW12/X17. The original produced by PW5 on
16.09.2014 were marked as Exts. PW5/A1 to PW5/A6. According
to PW5, the handwriting and the notings in the diary are that of her
daughter Soma Dutta. In the cross-examination, PW5 deposed that
she does not remember the date on which she had sent the copies
of the diary to the investigating officer. She had stated to the police
that she was in possession of the diary writings of her daughter.
However, she had not stated the said fact to the SDM, when she
gave Ext. PW3/D. PW5, when shown Ext. PW5/DB, a copy of the
complaint given by the accused under Sections 107 & 150 CrPC to
SDM, Barsad, District North-24 Pargana, deposed that she is
unaware of the same. She also feigned ignorance, when she was
asked whether the accused had deposited money during the period
2008-2009 in her account which she held jointly with the husband.
PW5 denied the defence version that the accused had refused to
deposit further amounts into their account, and that her daughter
had called her many times with the request not to trouble the
accused, as he had only limited income and that he was unable to
give any further amount(s) as demanded by them. PW5 also denied
the suggestion that her daughter had committed suicide due to the
illegal demands for money made from their side to the accused.
16. PW6, the father of the deceased, when examined deposed
that he had given dowry at the time of marriage of his daughter as
per his capacity. PW6 deposed that he came to know that the
accused had long standing illicit relations with his sister-in-law,
that is, from his days in the college. His daughter had informed
him over telephone that the accused was demanding ₹ 5 lakhs. His
daughter did not initially tell him about the demand, as she was
conscious of the fact that he would be unable to meet the demand
of the accused. At this juncture, it is seen that the prosecutor
sought the permission of the court to 'cross examine' the witness
on the ground that 'he is resiling from his previous statements.'
This request was allowed and the further examination by the
prosecutor reads thus:-
".................It is correct that police recorded my statement. It is
correct that accused and his family members were not satisfied
with the dowry articles given in marriage. It is correct that
after one and half years of the marriage accused started
harassing my daughter. It is incorrect to suggest that as and
when my daughter came to meet me, she used to tell that
accused used harass and beat her on every issue, confronted
with portion A to A of statement Mark PW6/A wherein it is not
so recorded. It is correct that when my daughter asked the
accused to stop his illicit relation with his sister in law accused
used to threaten to leave her. I do not know that accused had
demanded Rs. 5 lacs for buying the house and other goods or
that I stated so to the police in my statement Vol. only accused
knows for what purpose he had demanded Rs.5 lacs. It is
correct that my daughter had told me once that accused
demanded Rs.5 lacs for purchasing the house. It is correct that
whenever we asked our daughter to make complaint to the
police, she refused stating that it would spoil her family. It is
correct that I had counseled the accused many times that we
are poor people and were not able to meet his demand but he
did not agree. It is correct that in April 2011 when my
daughter came at our house even then she had told me that
accused was harassing her. 'It is correct that I had also tried to
counsel the accused at railway station by telling him that I
cannot afford to pay him money but accused did not agree. It is
correct that my daughter had telephone us 3/4 days before her
murder and at that time she was under distress. It is correct
that my daughter started crying on telephone and I also
became worried. It is correct that my daughter told me that
accused had made her life hell and was demanding Rs.5 lacs.
It is correct that the information about the death of my
daughter was received in the month of June. It is correct that I
have forgotten to tell these facts............."
16.1 In the cross examination PW6 admitted thus:-"..........It is
correct that at the time of marriage, we gave dowry as per our own wish,
and no demand was made by the accused and his family......". He had
been informed by his wife after the birth of his grandson, that the
accused had illicit relations with his sister-in-law. PW6 further
deposed that he does not remember the date, month or year, when
Soma Dutta returned to her marital home, after delivery, PW6
admitted that till then, the accused had not made any direct
demand to him for money. He denied the defence version that on
different occasions the accused had deposited a total amount of ₹
1.5 lakhs during the period 2009-2010 in his account. He also
denied the defence case, that he had pressurised the accused, to
meet the marriage expenses of his younger daughter and for
buying a new house.
17. PW9, the uncle of the deceased, does not have any direct
knowledge about the demand for money. On the other hand, he
deposed that he was told by PW5 and PW6 about the demand.
18. On behalf of the accused, DW1 to DW4 were examined.
The accused offered himself as a witness and so he was examined
as DW5. DW1, a neighbour, deposed that the accused and his wife
were living happily and that he had never seen any quarrel
between them. DW1 in the cross-examination admitted that he had
no knowledge whether the accused had demanded dowry from the
relatives of Soma Dutta. He further deposed that he had never
heard or seen the accused beating Soma Dutta during day time, at
which period he would be away at his workplace.
18.1 DW2, yet another neighbour, deposed that he had
visited the house of the accused one or two times; that the accused
had told him that the former's mother-in-law used to demand
money from time to time and due to the said reason the wife of the
accused was quite disturbed. DW2 deposed that he had never
heard about any misunderstanding between the accused and his
wife. DW1 in his cross-examination admitted that he had never
stated to the police that the mother-in-law of the accused used to
demand money from the latter. He also deposed that he has no
knowledge of what was given in dowry at the time of the marriage.
18.2 DW3, Chief Manager, SBI, Khardah, Kolkata, West
Bengal was examined to prove Ext. DW-3/A bank account
statement.
18.3 DW4, the landlord of the accused, deposed that the
accused and his wife were having cordial relations and during
weekends they used to go for outings. The accused, according to
DW4, is 'a peace loving person' and had good relations with him
and with the other persons of the locality. He had never heard any
quarrel between the accused and his wife. In the cross-
examination, DW4 deposed that he had no knowledge of what was
given as dowry at the time of marriage. He admitted that he had
stated to the police that there had been minor quarrels between the
accused and his wife. DW4 added that such minor quarrels do
happen in every family.
18.4 Finally, the accused, when examined as DW5 denied the
prosecution case and deposed that it was PW5 and PW6, the
parents of his wife who used to pressurise him to give money to
them for buying a new house. He also deposed that he had given
money for meeting the marriage expenses of his wife's sister and it
was he who had met all the expenses related to the delivery of his
wife.
19. Now the question is whether the aforesaid evidence is
sufficient to find the accused guilty of the offences punishable
under Section 498A and 304B. In order to seek a conviction of a
person for the offence of dowry death under Section 304B IPC, the
prosecution is obliged to prove that - (a) the death of the woman
was caused by burns or bodily injury or had occurred otherwise
than under normal circumstances; (b) such death should have
occurred within 7 years of her marriage; (c) the deceased was
subjected to cruelty or harassment by her husband or by any
relative of her husband; (d) such cruelty or harassment should be
for or in connection with the demand of dowry; and (e) to such
cruelty or harassment, the deceased should have been subjected to
soon before her death.
20. The fact that the death of Soma Dutta took place within
07 years of her marriage to the accused is not disputed. The fact
that Soma Dutta had committed suicide by hanging herself to death
is also not disputed. What is disputed is the reason(s) which
prompted her to commit suicide. For a dowry death, as defined in
Section 304B IPC, the death should have been in connection with
any demand of dowry as defined in the Dowry Prohibition Act,
1986. If the death occurred independent of any demand for dowry,
that death can under no circumstances be termed a dowry death
(State of Kerala versus Josh @ SAJU, 1994 KHC 268).
Prosecution in a case of offence under Section 304B IPC cannot
escape from the burden of proof that the harassment or cruelty was
related to the demand for dowry and also that such cruelty or
harassment was caused 'soon before death'. The word dowry in
Section 304B has to be understood as it is defined in Section 2 of
the Dowry Prohibition Act, 1986 which reads thus -
"......................
2. Definition of "dowry"-- In this Act, "dowry" means any
property or valuable security given or agreed to be given
either directly or indirectly--
(a) by one party to a marriage to the other party to the
marriage; or
(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 after the marriage] [in connection
with the marriage of the said parties, but does not include]
dower or mahr in the case of persons to whom the Muslim
Personal Law (Shariat) applies. Explanation II.--The
expression "valuable security" has the same meaning as in
section 30 of the Indian Penal Code (45 of 1860).................."
20.1 Thus, there are three occasions related to dowry. One is
before the marriage, second is at the time of marriage and the third
is 'at any time after the marriage.' The third occasion may appear
to be an unending period. But the crucial words are 'in connection
with the marriage of the said parties.' This means that giving or
agreeing to give any property or valuable security on any of the
above three stages should have been in connection with the
marriage of the said parties. There can be many other instances for
payment of money or giving property as between the spouses. For
example, some customary payments in connection with birth of a
child or other ceremonies are prevalent in different societies. Such
payments are not enveloped within the ambit of 'dowry'. Hence,
the dowry mentioned in Section 304 B should be any property or
valuable security given or agreed to be given in connection with
the marriage. It is not enough that harassment or cruelty was
caused to the woman with a demand for dowry at some time, if
section 304 B is to be invoked. But it should have happened 'soon
before her death'. The said phrase, no doubt, is an elastic
expression and can refer to a period either immediately before her
death or within a few days or even a few weeks before it. But the
proximity of her death is the pivot indicated by the expression. The
legislative object in providing such a radius of time by employing
the words 'soon before her death' is to emphasise the idea that her
death should in all probabilities, have been the aftermath of such
cruelty or harassment. In other words, there should be a perceptible
nexus between her death and the dowry related harassment or
cruelty inflicted on her. If the interval elapsed between the
infliction of such harassment or cruelty and her death is wide, the
court would be in a position to gauge that in all probabilities that
demand for dowry would not have been the immediate cause of
her death. It is hence for the court to decide, on the facts and
circumstances of each case, whether the said interval in that
particular case was sufficient to snuff its cord from the concept
'soon before her death' (See Satvir Singh v. State of Punjab
2001 KHC 934 : 2001 8 SCC 633).
20.2 The punishment for the offence of dowry death under
Section 304 B is imprisonment of not less than 7 years, which may
extend to imprisonment for life. Normally, in a criminal case the
accused can be punished for an offence on establishment of
commission of that offence on the basis of evidence, which may be
direct or circumstantial or both. But in the case of an offence under
Section 304B IPC an exception is made by deeming provision as
to nature of death as 'dowry death' and that the husband or his
relative, as the case may be, is deemed to have caused such death,
even in the absence of evidence to prove these aspects, but on
proving the existence of the ingredients of the said offence by
convincing evidence. Hence, there is need for greater care and
caution, that too having regard to the gravity of the punishment
prescribed for the said offence, in scrutinising the evidence and in
arriving at a conclusion as to whether all the above said ingredients
of the offence under Section 304B IPC are proved by the
prosecution. (See Sunil Bajaj v. State of Madhya Pradesh, 2001
KHC 941 : 2001 9 SSC 417)
20.3 Further, in cases under Section 304B IPC, Section 113B
of the Evidence Act is also relevant. Both Section 304B IPC and
Section 113B of the Evidence Act were inserted by the Dowry
Prohibition (Amendment) Act 43 of 1986 with a view to combat
the increasing menace of dowry deaths. Section 113B deals with
presumption as to dowry death. It says that when the question is
whether a person has committed the dowry death of a woman and
it is shown that soon before her death such woman had been
subjected by such person to cruelty or harassment for, or in
connection with, any demand for dowry, the court shall presume
that such person had caused the dowry death. The Explanation to
the Section says that for the purposes of this section 'dowry death'
shall have the same meaning as in Section 304B IPC. As per the
definition of dowry death in Section 304B IPC and the wording in
the presumptive Section 113B of the Evidence Act, one of the
essential ingredients, amongst others, in both the provisions is that
the woman concerned must have been 'soon before her death'
subjected to cruelty or harassment 'for or in connection with the
demand of dowry.' Presumption under Section 113B is a
presumption of law. On proof of the essentials mentioned in
Section 304B IPC, it becomes obligatory on the court to raise a
presumption that the accused caused the dowry death. The
presumption shall be raised only on proof of the essential
ingredients of Section 304B IPC. The expression 'soon before' is
very relevant where Section 113B of the Evidence Act and Section
304B IPC are pressed into service. The prosecution is obliged to
show that soon before the occurrence there was cruelty or
harassment and only in that case the presumption operates.
Evidence in that regard has to be led by prosecution. Again 'soon
before' is a relative term and it will depend upon the circumstances
of each case and no straight jacket formula can be laid down as to
what would constitute a period of a period of soon before the
occurrence. It would be hazardous to indicate any fixed period, and
that brings in the importance of a proximity test both for the proof
of an offence of dowry death as well as for raising a presumption
under Section 113B of the Evidence Act. The determination of the
period which can come within the term 'soon before' is left to be
determined by the courts, depending upon the facts and
circumstances of each case. Suffice, however, to indicate that the
expression soon before noted, may would normally imply that the
interval should not be much between the cruelty concern or
harassment and the death in question. There must be existence of a
proximate and live link between the effect of cruelty based on
dowry demand and the death. If the alleged incident of cruelty is
remote in time and has become stale enough not to disturb the
mental equilibrium of the woman concerned, it would be of no
consequence. (See Hira lal v. State of Government of NCT
Delhi 2003 KHC 1584 : 2003 8 SCC 80).
21. Coming back to the case on hand, it has come out
through the testimony of PW5 and PW6, who are none other than
the parents of the deceased, that no demand for dowry had been
made at the time of the marriage. The demand is alleged to have
been made subsequently made, that is, about one and a half years
after the marriage. The testimony of PW5 and PW6 on whose
testimony alone the prosecution relies to prove the case, will have
to be considered and analysed in the background of Ext. PW5/DB
Kalandara also which reads thus:-
"DISTRICT: NORTH 24 PARGANAS
In the court of Ld. S.D.E.M. at Barasat.
MP - 985/2011
First party Second Party
Sree Jaydev Dutta, Smt Mita Das
S/o. Sree Panitosh Dutta. w/o. Sree Sudhir Das
of vill- Janaphul, Sanpukur. v/s of 11 No- Boga Para
P.O. - Janaphul. S. K. Banerjee Road,
PS - Habra. Tejpata Gali,
Dist - North 24 Parganas. P.O. - Khanda, P.S. -
Khanda, Dist - North
24 parganas.
petition u/s 107 Cr.P.C.
MOST Respectfully Showeth:-
1. That the first party is a peace loving and Law abiding Indian citizen.
2. On the other hand second party is a dangerous, quarrelsome, ferocious
lady. She has no faith in law.
3. That the marriage of the second party's elder daughter namely Soma with
the Second party was held on 01/5/06 according to Hindu rites and customs.
After marriage the daughter of the Second party was leading conjugal life
peacefully with the First party. But the daughter of Second party threatened
the first party & his family members to File False case against them only for
greediness and conspiracy by her mother i.e. 2nd party. But the First party
is very peaceful and gentle. He wants to lead peaceful life so, he is always
ignoring the torture and threat of 2nd party and her daughter.
4. That on 01/4/11 at 11 am the second party telephoned by bearing No
9735081747 & 9143734827 to the First party in his phone bearing No -
9818408752, she abused the First party & threatened to Kill him.
When the First party asking her what is reason for threatening then she
said, "you will send Rs. 5000/- pm to me and cut up all connection with your
parents." Second party said, "if you neglect me, I shall engaged anti social
elements for kidnap your elder brother's daughter for purpose of outrage
her modesty." Then the First party lodged a G.D.E at Habra P.S. bearing
G.D.E No. 57 dt - 01/4/11.
5. That - in First week of April of 2009 the First party went to his in-law's
house __ returned back in his home. On that time the above named second
party confined the first party in room and she snatched Rs. 8000/ 9000/-
from the pocket of First party. Also she forcefully signed on a non judicial
stamp paper value of Rs. 10/- by the first party. But the First party does not
disclose the matter to any where for peace life. But on 01.4.11 First party
lodged a G.D.E for afraid of his life and kidnap of elder brother's daughter
at Habra P.S. vide G.D.E No. 572 dt- 01/4/11.
6. That First party and his family members at any time may be killed or
kidnapped by the 2nd party and her associates.
Hence it is prayed that Your Honour would graciously be pleased to pass
necessary order u/s 107 Cr.P.C. direct the O.P. to keep peace & maintain
tranquility and Filing show-cause and call for report in the mean time from
Habra P.S.........."
22. Soma Dutta committed suicide on 23.06.2011. In Ext.
PW5/DB, the incident of intimidation etc. is alleged to have
happened on 01.04.2011, about 2 ½ months before the incident.
This document shows that PW5 and PW6 and the accused were
not in cordial terms at all.
23. In Ext. PW3/D FIS, the allegation regarding the
harassment and dowry claim are not quite specific and they seem
quite vague. It is true that the said statement was given by PW5 the
day immediately after her daughter had committed suicide.
Therefore, as a mother PW5 would certainly have been in a
disturbed state of mind. Paragraph 12 of the impugned judgement
reads:-,
" 12. The learned defence counsel has assailed the
testimony of PW-5 Meeta Dass mainly on the ground that
same contains material improvements. It has been stated
that there is no mention of demand of Rs. 5 lacs in the first
statement made by this witness before SDM. It is argued
that the statement Exbt. PW-1/B is vague and does not give
the specific dates on which such demand was made. It is
thus argued that the testimony of PW-5 cannot be relied
upon in evidence. On the other hand, the learned
Additional PP has argued that the same day on which PW-
1 was examined by the SDM, she gave yet another
statement under Section 161 Cr. PC before the IO in which
she had specified that the demand was for Rs. 5 lacs was
from the accused for buying a house on account of which,
he used to harass the daughter of PW-1. It is argued that
there is no material improvement in the statement made by
PW-5 before the court, which also finds corroboration
from the testimonies of PW-6 Sudhir Dass, PW-9 Bappi
Dass and PW-11 Ashish Ghosh and therefore her testimony
cannot be disbelieved"
(Emphasis Supplied)
The trial court appears to have accepted this argument advanced by
the prosecution and concluded that in the light of the specific
statement of PW5, PW6 and PW9 regarding harassment of the
deceased on account of the demand of ₹ 5 lakhs as dowry, the
prosecution has succeeded in proving the case. The statements
made under Section 161 are statements made to the police during
the course of investigation and the same cannot be used except for
the purpose stated in the proviso to the Section. Under the proviso
to Section 162(1) Cr.P.C., such statements can be used only for the
purpose of contradicting a prosecution witness in the manner
indicated in Section 145 of the Evidence Act and for no other
purpose. They cannot be used for the purpose of seeking
corroboration or assurance for the testimony of the witness in
Court. (See Tahsildar Singh v. State of U.P., AIR 1959 SC 1012;
Satpal v. Delhi Administration, 1976 (1) SCC 727 and Delhi
Administration. v. Lakshman Kumar 1985 KHC 741: (1985) 4
SCC 476).
24. Therefore, the argument that the Section 161 statement of
the witness corroborates the testimony of PW1 cannot be
countenanced for a moment.
25. It is true that the FIS/FIR is not an encyclopaedia
containing all the detailed facts of the incident. However, the broad
facts of the commission of a cognisable offence must be contained
therein. The trial court was not inclined to rely on the testimony of
the defence witnesses on the ground that the neighbours may not
know what was happening inside the matrimonial home. Going by
the testimony of DW1 and DW2, there was no disharmony
between the couple. It is true that they are neighbours and
therefore, they need not always know of all events that happen
within the family. DW4, the landlord also says that there was no
disharmony or quarrels between the accused and his wife.
However, DW4 admited that a minor quarrel did take place
between the accused and his wife. One quarrel alone cannot be
treated as sufficient to attract the ingredients of the offence under
Section 304 B IPC. Exhibit PW 5/A Kalandara, clearly shows that
the relations between the parties was quite strained. This aspect
has to be kept in mind when the testimony of the parents is
considered.
26. PW5, the mother, has produced Ext. PW5/A1 to Ext.
PW5/A6 (collectively), which are alleged to be the diary notings of
the deceased. However, she admits that the originals were never
produced or handed over to the Investigative Officer. It is also
admitted that the Investigative Officer never took any steps to
compare the handwriting seen in exhibits PW5/A1 to PW5/A6
with the admitted handwriting of the deceased. That being so, the
trial court was right in rejecting the said documents and not relying
on the same.
27. PW5 and PW6 have also a case that that their daughter
had told them that the accused was having illicit relation with his
sister-in-law. Such an allegation finds a place in exhibit PW3/D
FIS also. In fact, PW6 in his chief examination itself says that
when his daughter used to ask the accused to put an end to the
illicit relationship, the latter used to threaten that he would desert
her. This allegation was of course denied by the accused. This
allegation made in the FIS read along with Ext. PW5/DB Kalandra
raise doubts relating to the prosecution case of harassment of the
deceased claiming more dowry. Doubts arise whether it was due to
some other marital issue(s) between the couple, the deceased
committed suicide.
28. Further, the testimony of PW5 and PW6 is also quite
unsatisfactory. I have already referred to their testimony in detail.
It is seen that during their examination, the prosecutor sought
permission to cross examine the witnesses on the ground the
witnesses (who are none other than the parents) were resiling from
their earlier statements. The permission sought for is seen granted
by the trial court without considering whether the said witnesses
were actually "hostile" to the prosecution case. The Evidence Act
does not contain the terms "hostile" witness "adverse" witness, or
"unfavourable" witness. But as held by the Apex Court in Tamil
Maran K.P v. State by Deputy Superintendent of Police, 2025
KHC 6400: 2025 SCC Online SC958, - "the phrase 'hostile
witness' is commonly used in criminal jurisprudence and court
proceedings. We too cannot escape the blame of using the term
'hostile witness' in our judgment. We do it for pragmatic reasons.
Some words like 'hostile witness' in this case are now a part of our
legal vocabulary. There is no point in inventing or substituting
new words or phrases, at least in the present case, and we leave
that for the future." But what is necessary, however, is to explain
the meaning of the term as it is now to be understood. The phrase
'hostile witness' has come to be used for a witness who gives a
statement contrary to the story of the side for which he / she is a
witness. All the same, because a witness has supported some,
though not all, aspects of a case, it would not automatically mean
that this witness has to be declared 'hostile'.
28.1.In Sat Paul v. Delhi Administration,1976 KHC 675:
(1976) 1 SCC727, it has been held that the grant of permission to
cross examine his own witness by a party is not conditional on the
witness being declared "adverse" or "hostile". Whether it be the
grant of permission under S.142 to put leading question, or the
leave under S.154 to ask questions which might be put in cross
examination by the adverse party, the Evidence Act leaves the
matter entirely to the discretion of the court. The discretion
conferred by S.154 on the court is unqualified and untrammelled,
and is apart from any question of "hostility''. It is to be liberally
exercised whenever the court from the witness's, demeanour
temper, attitude, bearing, or the tenor and tendency of his answers,
or from a perusal of his previous inconsistent statement, or
otherwise, think that the grant of such permission is expedient to
extract the truth and to do justice. The grant of such permission
does not amount to adjudication by the court as to the veracity of
the witness.
28.2. Further, whatever be the form and nature of the
questions put to the witness, examination of a witness by the
person who calls him is 'examination-in-chief' if it is before the
examination of that witness by the adversary, and re-examination'
if the same is after the adversary examines him. 'Cross-
examination' means examination of the witness by the adverse
party (See Sections 137 and 138 of the Evidence Act). To say that
one may cross-examine his own witness is, in the face of the
definition of the word 'cross-examination' as aforesaid, a
contradiction in terms. S.142 of the Evidence Act bars leading
questions or questions suggestive of answers in examination-in-
chief and re-examination. Under S.154 Evidence Act, however, the
court may allow a person to put to his own witness such questions
as might be put in cross-examination by the adverse party. With
permission granted under S.154, such questions, that is, leading
questions can be put in examination-in-chief also. On grant of such
request, the party who sought the permission would still continue
to conduct examination-in-chief of the witness with liberty to put
questions as put in cross-examination, namely, leading questions.
The said examination is not cross-examination. The cross
examination of the witness will only be by the adverse party and
not by the party who calls the witness. The only object of putting
in examination-in-chief with the permission of the court questions
of the kind allowed only in cross-examination, is not to discredit
the witness but to bring out evidence which would advance the
case of the cross-examiner or the person calling the witness, as the
case may be.
29. Therefore, the permission under Section 154 of the
Evidence Act is not granted on the mere asking. It is only when it
appears to the court from the demeanour, temper, attitude, bearing
or the tenor and tendency of his answers or from a perusal of his
previous inconsistent statements, or otherwise, it is expedient to
extract the truth and do justice, the permission is granted. The
permission then granted under Section 154 is to put questions as
put in cross examination, that is, leading questions. Section 142 of
the Evidence Act does not permit putting leading questions in the
examination-in-chief or in a re-examination, except with the
permission of the court.
30. Here, on going through the testimony of PW5 and PW6
such a situation does not seem to have arisen to declare them
"hostile" and to put questions as put in the cross-examination. It
can be seen that after such permission was given by the trial court,
all leading questions were put to the witnesses on the crucial
aspects of the prosecution case and favourable answers obtained.
Such answers obtained by putting leading questions have to be
considered with utmost circumspection, lest it causes prejudice to
the accused.
31. The accused has been convicted by the trial court for the
offence under Section 498A IPC also. As per explanation (a) to the
Section, any wilful conduct which was of such a nature as is likely
to drive the woman to commit suicide or to cause grave injury or
danger to life limb or health (whether mental or physical) of the
woman, is cruelty. The evidence on record does not satisfy this
test. The trial court went wrong in relying on the testimony of
PW5 and PW6, which I find not quite satisfactory for the aforesaid
reasons to find the accused guilty beyond reasonable doubt. Moral
conviction or conviction based on suspicion is not possible.
Suspicion, however strong it may be, cannot take the place of
proof. Conviction can only be made on the basis of cogent
evidence and materials brought on record by the prosecution. The
argument advanced by the learned prosecutor that as death took
place inside the marital home, it is for the accused to explain the
circumstances in which the deceased had committed suicide can
also not be accepted in the light of evidence on record to which I
have referred to in detail. In these circumstances, I find that the
accused is entitled to the benefit of doubt.
32. In the result, the appeal is allowed, and the impugned
judgment convicting and sentencing the appellant/accused by the
trial court is set aside. The accused is acquitted under Section
235(1) Cr.P.C of all the offences charged against him. He is set at
liberty and his bail bond shall stand cancelled.
33. Application(s), if any, pending, shall stand closed.
CHANDRASEKHARAN SUDHA
(JUDGE)
FEBRUARY 06, 2026
RS/ER
