Kankanjyoti Das vs The State Of Assam And Anr
2022 Latest Caselaw 4842 Gua

                                                                                   Page No.# 1/4

GAHC010145112022




                               THE GAUHATI HIGH COURT
     (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : I.A.(Crl.)/380/2022

             KANKANJYOTI DAS
             S/O LATE HARI NATH DAS RESIDENT OF VILLAGE DAKSHINHATI, PS AND
             DIST BARPETA, ASSAM.



             VERSUS

             THE STATE OF ASSAM AND ANR.
             REPRESENTED BY PP ASSAM

             2:SIMANTA DAS
              S/O LATE PAREN DAS
             RESIDENT OF DAHATI PS AND DIST BARPETA
             ASSA

Advocate for the Petitioner    : MR. A M BORA

Advocate for the Respondent : PP, ASSAM

                                         BEFORE
                           HON'BLE MRS. JUSTICE MALASRI NANDI
                                           ORDER

08.12.2022 Heard Mr A M Bora, learned Senior Counsel, assisted by Mr V A Choudhury, learned counsel for the applicant/appellant and Mr B Sarma, learned Additional Public Prosecutor for the State of Assam/respondent No. 1. Also heard Mr Surajit Das, learned counsel appearing on behalf of the respondent No. 2.

2. The applicant/appellant has preferred an application under Section 389 of the Code of Page No.# 2/4

Criminal Procedure, 1973, praying for suspension of execution of sentence, passed in Judgment and Order dated 28.06.2022, by Additional Sessions Judge, Barpeta, in Sessions Case No. 134/2017, whereby the applicant/appellant has been convicted under Section 304 (B) of the Indian Penal Code, 1860 and sentenced to undergo Rigorous Imprisonment for 10 (ten) years and to pay fine of Rs. 3 lacs, in default, to undergo further imprisonment for 3 (three) years and to allow the applicant/appellant to go on bail, pending disposal of the appeal.

3. It is submitted by the learned Senior Counsel Mr A M Borah that since the days of his conviction, the accused is in jail hazot. There are lots of contradictions in the evidence of the witnesses. As such, there is every possibility of acquittal of the accused. In an offence under Section 304 (B) IPC, the prosecution cannot escape from the burden of proof that the harassment or cruelty was related to the demand of dowry and also that such cruelty or harassment was caused 'soon before her death'.

4. It is also the submission of the learned Senior Counsel for the petitioner that the word 'dowry' in Section 304 (B) IPC has to be understood as it is defined under Section 2 of the Dowry Prohibition Act. In the instant case, there is no proximate nexus between the death of the deceased with the cruelty or the harassment inflicted upon her in respect of the demand of dowry.

5. Learned Senior Counsel has referred the FIR and the evidence of PW-1, by stating that in the FIR, the PW-1, who is the informant of the case has stated that since after marriage of his sister with the accused applicant, he started demanding money and ornaments as dowry. But while he was examined before the Court, he has improved his version and stated that immediately after 15 days of her marriage, her husband demanded fridge and washing machine and subjected her to mental torture to fulfill his illegal demand. Learned Senior Counsel also pointed out some contradictions here and there in the evidence of the witnesses regarding demand of money, ornaments, fridge and washing machine.

6. It is further argued by the learned Senior Counsel that the deceased had committed suicide as she was suffering from mental depression, which is supported by the evidence of some witnesses adduced on behalf of the accused person. In support of the fact, learned counsel referred the evidence of DW-6 and prays to release the accused/appellant on bail, pending disposal of the appeal.

Page No.# 3/4

7. On the other hand, learned Additional Public Prosecutor, Mr B Sarma has submitted that so far as considering the prayer for suspension of sentence, pending appeal is concerned, the evidence of PW-1, 4, 7 and 8, assumes importance in the present case to bring home the guilt of the accused/applicant. The deceased died otherwise than under normal circumstances within 70 days of her marriage. It is also submitted that the evidence of the witnesses further establish that the deceased was annoyed with the demands of her husband and she was even reluctant to return to his house. No any doctor or medical prescription has been furnished before the trial Court to prove that the victim was suffering from any mental disorder or depression and as such, he prays for dismissal of the petition on suspension of sentence.

8. Learned counsel for the respondent No. 2, informant , Mr Surajit Das also argued in the same tune with learned Additional Public Prosecutor by stating that the applicant side has failed to show any such cogent reason to suspend his sentence, pending disposal of the appeal. It is submitted that the contradictions as shown by the learned counsel for the applicant regarding demand of dowry articles, like cash, jewellery, refrigerator or washing machine, that cannot be taken up while considering bail application. Learned counsel also reiterated the evidence of the concerned doctor, who examined the deceased when she was alive. No any prescription or medical record has been furnished in the case to prove that the victim was suffering from any abnormality, for which she had committed suicide. Hence, prayer for bail may not be considered at this stage.

9. I have considered the rival submissions of the learned counsel for the parties.

10. Admittedly, the victim died in the house of the appellant with burn injuries on her person within 70 days of her marriage. The allegation against the accused/applicant is with regard to demand of some dowry articles and it is true that there are some contradictions in the evidence of witnesses, regarding demand of cash, jewellery, fridge or washing machine. But such facts cannot be taken into account at this stage while no any apparent or gross irregularities can be noticed in the Judgment of the trial court. It is also to be noted the annoyance of the deceased with respect to such dowry demand and her immediate death with burn injuries cannot be overlooked, which signals a proximate nexus between the effects of cruelty based on dowry demand and her death.

11. Regarding mental condition of the deceased, as referred by the learned Senior Counsel for the applicant/appellant, I have gone through the evidence of DW-6, who is a dental surgeon by profession. He stated before the Court that he examined the deceased, Priti Rekha Das, with Page No.# 4/4

complication of excessive salivation. Accordingly, he examined her and he had also gone through the previous prescriptions prescribed by Dr Ajit Kumar Sarma, ENT Surgeon and Dr B P Chakraborty, Medicine Specialist.

12. It also reveals from the evidence on record that as the deceased was suffering from throat infection, i.e., pharyngitis, she had visited along with her husband to the Chambers of Dr. A K Sarma, ENT Surgeon and Dr B P Chakraborty, Medicine Specialist, but none of them were examined to prove the fact that she was suffering from any mental depression or schizophrenia as stated by the learned counsel for the applicant. PW-6 also nowhere stated that the deceased was suffering from any mental disorder.

12. Apart from that, no any special ground has been shown by the learned Senior counsel for the applicant that bail may be enlarged at this stage, during pendency of the appeal.

13. In the result, prayer of the applicant is rejected. Interlocutory Application stands disposed of.

JUDGE

Comparing Assistant