Tripura High Court
Convict vs The State Of Tripura on 6 February, 2024
HIGH COURT OF TRIPURA
AGARTALA
CRL.A.(J) No.41 of 2022
Sri Pranab Ranjan Roy Karmakar
S/O. Sri Pran Ballabh Roy Karmakar
Of Chanban, P.O & P.S:- R.K Pur
District:-Gomati Tripura
....Convict-Appellant.
Versus
The State of Tripura
.......Respondent.
For Appellant(s) : Mr. Rajib Saha, Adv,
Mr. R. G. Chakraborty, Adv.
For Respondent(s) : Mr. S. Ghosh, Addl. P.P.
Date of hearing : 29.01.2024
Date of delivery of
Judgment & Order : 06.02.2024
Whether fit for
reporting : YES
HON‟BLE MR. JUSTICE T. AMARNATH GOUD
HON‟BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order
[Biswajit Palit, J]
The prosecution case, in short, is that on 18.07.2014 one
Smt. Chanda Karmakar, wife of Sri Pralay Karmakar of Khilpara laid one
FIR to OC, R.K. Pur Women PS alleging inter alia that about four years
back, her elder daughter, Sharmistha was given marriage to accused
Pranab Ranjan Roy Karmakar as per Hindu Marriage Rites and Customs.
At the time of marriage, as per demand of the accused-appellant, they
gave cash amount of Rs.40,000/-(Rupees Forty Thousand only) and
other articles. After the marriage, the accused-appellant started causing
pressure upon her daughter to bring Rs.50,000/-(Rupees Fifty
Thousand only) more and for that, he used to assault her. The
informant, Smt. Chanda Karmakar, further stated that she worked as a
maid in people‟s house and her husband was a rickshaw puller. When
she expressed her inability to give the money, the accused-appellant
pressurized her husband to give the said amount of Rs.50,000/-(Rupees
Fifty Thousand only) and also beaten him severely. She further stated
that her elder daughter used to bear the torture because she had an
eleven months old baby and being hopeful that, in future, the accused
will amend himself. On 17.07.2014, Thursday, at about 9:30 hours, the
accused-appellant called her younger daughter Sushmita Karmakar
over phone and informed that the grandson of the informant was
admitted in the hospital. Accordingly, the informant rushed to the
hospital and found that her daughter was lying dead in the hospital and
she suspected that the accused-appellant killed her daughter. Hence,
she laid the FIR.
2. On receipt of FIR/ejahar, OC, R.K. Pur Women PS registered
R.K Pur Women PS case No.93/2014 dated 18.07.2014 under Sections
498-A/304-B of IPC and the case was endorsed to Ms. Mina Kumari
Debbarma, Dy.S.P., for investigation and the I.O. on completion of
investigation being prima facie satisfied, laid charge-sheet against the
accused person namely Pranab Ranjan Roy Karmakar vide R.K. Pur
Women P.S. Charge-sheet No.131 dated 17.12.2014 under Sections
498-A/302/304-B IPC and Section 4 of the Dowry Prohibition Act.
Accordingly, on receipt of charge-sheet, cognizance of offence was
taken by Learned Chief Judicial Magistrate, Gomati, Udaipur under
Sections 498-A/302/304-B of IPC along with Section 4 of the Dowry
Prohibition Act and the case was committed to the Court of Sessions for
holding trial of accused.
3. Before the Court of Learned Sessions Judge, formal charge
was framed against the accused-appellant under Sections
498A/304B/302 of IPC and Section 4 of the Dowry Prohibition Act and
the same was explained to the appellant in Bengali to which he pleaded
not guilty and claimed to be tried.
4. To substantiate the charge, prosecution before the Learned
Trial Court has adduced in total 17 nos. of witnesses and the
prosecution also relied upon some documents which were marked as
exhibits in this case.
The defence case was that of total denial and as such, during
examination under Section 313 of Cr.P.C., the accused-appellant
pleaded as innocent simplicitor and denied to adduce any witness in
support of his defence and also denied the prosecution story.
5. Finally, Learned Court below on conclusion of trial, after
hearing argument of both the sides found the appellant guilty and
convicted him and also sentenced him to suffer RI for life and fine of
Rs.10,000/- for the commission of offence punishable under Section
302 of IPC in default, to suffer RI for 6(six) months. The convict-
appellant was further sentenced to RI for 3(three) years and fine of
Rs.5000/- for the offence under Section 498-A of IPC in default of fine,
to suffer RI for further 3(three) months. The convict was further
sentenced to RI for 7(seven) years for the commission of offence
punishable under Section 304-B of IPC and was sentenced to RI for
1(one) year and a fine of Rs.5,000/- for the offence punishable under
Section 4 of Dowry Prohibition Act in default of payment of fine to
undergo further RI for more 3(three) months and it was ordered that all
the sentences would run concurrently.
Challenging that judgment, the present appellant has
preferred this appeal before the High Court.
6. Heard Mr. Rajib Saha, Learned Counsel and Mr. R. G.
Chakraborty, Learned Counsel appearing for the accused-appellant and
also heard Learned Additional P.P., Mr. S. Ghosh representing the
respondent-State.
7. In course of hearing, Learned Counsel for the accused-
appellant submitted that the prosecution has failed to prove the case
beyond reasonable doubt against the appellant before the Learned
Court below, but the Learned Court below without proper appreciation
of the evidence on record convicted the appellant guilty for the offences
charged. Learned Counsel firstly submitted that in this case, pillow was
not produced although according to prosecution, the same was seized
but during trial the same was not marked as material object. So, in
absence of production of pillow, there is no scope to draw any adverse
inference against the appellant showing his involvement with the
offences alleged.
8. Learned Counsel further submitted that in every crime, there
must be some motive but in the case at hand, prosecution could not
prove any motive to sustain conviction against the accused-appellant.
There was no specific evidence on record from the side of prosecution
that the deceased was subjected to cruelty for unlawful demand of
dowry soon after the marriage or before her death, but the Learned
Court below in absence of evidence on record convicted the appellant
under Section 304-B and also under Section 498-A of IPC for which
intervention of the Court is required for setting aside the judgment of
conviction against the accused-appellant. Learned Counsel further
submitted that from the evidence on record adduced by the
prosecution, nowhere it will be found that no independent witness found
the appellant to cause cruelty for demand of dowry upon the deceased-
victim. So, just on the basis of such omnibus statements, there was no
scope to convict the appellant by the Learned Trial Court. So, Learned
Counsel finally urged for interference by this Court and for allowing the
appeal, setting aside the judgment of the Learned Court below and
referred some citations which will be discussed later on.
9. On the contrary, Learned Addl. P.P. for the respondent-
State submitted that this is a case where the prosecution has been able
to prove the charge levelled against the appellant. According to him,
the evidence of PW-6 and PW-7 are so convincing and trustworthy that
the appellant by the trend of cross-examination could not raise any
doubt to disbelieve their evidence. He further submitted that there may
be some contradictions in the FIR and the FIR is not a substantive piece
of evidence. But the accused save and except contradiction of the FIR
could not place any other materials before the Court regarding shaking
credit of witnesses of the prosecution in respect to 161 statements
recorded by I.O. during investigation. Furthermore, Learned Addl. P.P.
submitted that from the evidence on record of the prosecution, it is
crystal clear that at the time of marriage, the appellant demanded
dowry from the informant party and at the time of marriage, he took
Rs.40,000/- as dowry from the informant party and also prior to 1 ½
month back of the death of the deceased, the victim was further
subjected to cruelty for a further sum of Rs.50,000/- and this fact has
been very clearly explained by the witnesses of prosecution in course of
their examination before the Court. The appellant by the trend of cross-
examination could not make any cloud to disbelieve their evidence.
Learned Addl. P.P. also referred the definition of „dowry‟ as provided in
the Dowry Prohibition Act and also relied upon some citations and
further submitted that from the act and conduct of the appellant, just
prior to the death of the deceased that he was very much present to
the place of occurrence along with his wife (deceased) at the time of
occurrence and he caused the death of his wife i.e the deceased victim
by asphyxia by using pillow or by any other means. Although, the pillow
could not be produced and the post-mortem report of the deceased and
the evidence of the Doctor who conducted post-mortem report clearly
discloses that the cause of death was asphyxia due to suffocation which
was homicidal in nature. Finally, Learned Addl. P.P. submitted that this
is a very clear case of conviction and Learned Court below after
elaborate discussions of the evidence on record rightly and reasonably
delivered the judgment finding him guilty and convicted him accordingly
and urged before this Court to uphold the judgment passed by the
Learned Court below rejecting the appeal.
10. We have heard arguments of both the sides and gone
through the evidence on record of the Learned Court below.
Before conclusion of the case, let us revisit the evidence on record of
the prosecution adduced before the Learned Trial Court to substantiate
the charges levelled against the accused-appellant. As already stated,
to substantiate the charge, prosecution before the Learned Court below,
has adduced in total 17 Nos. of witnesses.
11. PW-1, Tumpa Sen, is a seizure list witness. She is constable
of Police. She deposed that in her presence on 06.08.2014, the I.O. at
TSD Hospital, seized part of intestine, kidney and viscera by a seizure
list and the witness identified her signature on the seizure list marked
as Exhibit-P-2 series/1. During cross, nothing came out relevant.
12. PW-2, Smt. Binapani Debbarma also deposed in the same
manner like PW-1. She stated that on 06.08.2014, as a constable of
police of Women PS, Udaipur, she went to TSD hospital when
darogababu seized part of intestine, kidney and viscera in her presence
by a seizure list and the witness identified her signature marked as
Exhibit-P-2series/2. During cross, nothing came out relevant.
13. PW-3, Smt. Sikha Deb, Women ASI of Police deposed that on
17.7.2014, she was posted as Women ASI at Women PS, Udaipur. On
that day, at TSD Hospital, Udaipur, she prepared the inquest report on
the dead body of Sharmistha Roy Karmakar and she had sent the letter
to the SDM, Udaipur for preparation of separate inquest report. During
cross, nothing came out relevant.
14. PW-4, Bablu Dutta deposed that on 18.07.2014, as an
Advocate‟s Clerk on the request of one Chanda Karmakar, he had
written a complaint petition of the informant addressed to OC, PS. After
scribing of the FIR, he read over the same to the FIR maker and the
witness identified his signature in the FIR marked as Exhibit-P-1. During
cross, save and except denial nothing came out relevant.
15. PW-5, Smt. Madhabi Debbarma, deposed that on
18.07.2014, she was posted as OC of Women P.S., Udaipur. On that
day, she received written FIR of Smt. Chanda Karmakar and on the
basis of that, she registered Women PS case No.93/14 under Sections
498-A/304-B of IPC and endorsed the case to Dy. S.P., Mina Kumari
Debbarma for investigation. During cross, nothing came out relevant.
16. PW-6, Chanda Karmakar is the informant of this case. She
deposed that Sharmistha was her daughter and the accused-appellant,
Pranab Ranjan Roy Karmakar is the husband of Sharmistha. She
identified the appellant in the dock. According to the informant, in the
year 2010 A.D, on 21st Baishakh, marriage between her daughter and
Pranab was solemnized according to Hindu Rites and Customs. At the
time of marriage, there was demand from the side of Pranab for an
amount of Rs.40,000/- in cash and 2 items of gold ornaments and
accordingly, they gave Rs.40,000/- in cash and 2 items of gold
ornaments such as earrings and bangles. She further stated that for
about 2 years, Sharmistha resumed conjugal life peacefully at her
matrimonial home but thereafter Pranab started assaulting her on
demand of Rs.50,000/-. She could know the fact from Sharmistha when
she used to visit her house. Further stated that Pranab also claimed
money when he visited the residence of the informant but they could
not meet up the payment due to their poverty as her husband was a
rickshaw puller. Due to non-payment of amount, the accused-appellant
used to assault her (victim) physically. Prior to 1 ½ and 2 months back
from the date of death of Sharmistha, she met her and on the last
occasion i.e. 1 and ½ months/2 months back prior to the death of
Sharmistha, when she came to their house, the appellant Pranab also
came with her and on that day, Pranab assaulted her husband, Praloy
Karmakar on demand of Rs.50,000/-. On that day, Sharmistha returned
back to her matrimonial home and after 1 ½ or 2 months from that
day, one day in the night at about 9:00 p.m., Pranab telephoned them
and informed that the minor son of Sharmistha was admitted in the
Hospital. That time, that boy was aged about 11 months. Hearing the
news, she along with her sister, Bakul Karmakar, went to TSD Hospital,
Udaipur and found the dead body of Sharmistha was lying in the
hospital. On the following day, she laid the FIR. She further stated that
the ejahar was written by one Babul Datta as per narration and she
identified her signature in the ejahar which was marked as Exhibit-P-
1/1.
During cross-examination, she deposed that in their house,
her two brothers namely Krishna Karmakar and Nepal Karmakar are
residing with their family members and their rooms are situated very
contiguous to their room and all the huts in their house are made of
GCI sheets fencing and they had good relation with her brothers and
their family members and they shared their family problems with them.
She further stated that she has got another daughter namely Sushmita,
who is Madhyamik passed. She lodged the ejahar on the next day of
death of Sharmistha at about 4:30 p.m. She further stated that she did
not mention in her ejahar that going to her house, Sharmistha informed
her about physical assault to her by Pranab on demand of money. She
further stated that the relationship between Sharmistha and Sushmita
was very good and they used to share their problems with each other.
She further stated that in the ejahar she mentioned that about 1 month
back from the date of death of Sharmistha, Pranab assaulted her
husband. She further stated that the distance between Women PS of
Udaipur and her house would be a walking distance of less than half an
hour and also stated that the dead body of Sharmistha was cremated
by Pranab.
17. PW-7, Bakul Karmakar deposed that daughter of Chanda
namely Sharmistha was given marriage with Pranab Ranjan Roy
Karmakar in the year 2010 as per Hindu Rites and Customs. According
to this witness, for about 2 years, Sharmistha was happy at her
matrimonial home. Thereafter, Pranab started assaulting Sharmistha on
demand of Rs.50,000/- and Sharmistha reported them the said fact of
demand of Rs.50,000/- and physical assault on her by Pranab but they
could not meet up the demand of Rs.50,000/- and for that, Pranab
often on used to torture Sharmistha physically. She sometimes visited
the house of Sharmistha found swelling on the face of Sharmistha and
being asked Sharmistha told her that she was physically assaulted by
fist and blows on her face by Pranab. One day about 1 year 5 months
back, Pranab telephoned Sushmita and informed that the baby of
Sharmistha was hospitalized. Knowing the same, the witness along with
her sister, Chanda went to TSD Hospital and found the dead body of
Sharmistha was lying in the veranda of the Hospital. She further stated
that about 1 and ½ months back prior to the death of Sharmistha,
Pranab assaulted father of Sharmistha on demand of Rs.50,000/-. She
also stated that in the room of Pranab, he himself, Sharmistha and their
male child used to reside. She further stated that at the time of
marriage, they gave Rs.40,000/- in cash, 2 items of gold ornaments
and some furniture to Pranab for the use of the couple as there was
demand from the side of Pranab. The witness has identified the
accused-appellant in the dock.
During cross-examination, she stated that she did not say to
I.O. about any demand from the side of Pranab regarding Rs.40,000/-
and gold made ornaments at the time of marriage. She also did not say
to I.O. that from Sharmistha, she came to know about the torture on
her and that on visiting the house of Sharmistha, she found swelling on
her face and that Sharmistha being asked told that due to assault by
Pranab by fist and blows, the swelling occurred. Nothing more came out
relevant.
18. PW-8, Shri Satyanarayan Bhowmik deposed that on
17.7.2014, he used to reside in house of Pranballav Roy Karmakar of
Chanban as tenant. During that period, some other tenants including
Rajkumar Jamatia also used to reside in that house. Elder son of
Pranballav Roy Karmakar is Pranab Ranjan Roy Karmakar, who was also
residing in that house during that period and name of Pranab‟s wife was
Sharmistha. On that day at about 9:30 p.m. in the night suddenly
Pranab called him stating that his wife, Sharmistha was not talking
anything. Knowing the same, the witness with his wife went to his room
and found that Sharmistha was in a sitting posture in a tilted position
and she was senseless. Thereafter, they poured drop of water on her
face but she did not regain her sense. Thereafter, they called fire
service and sent her to hospital and on the same night, he heard that
Sharmistha expired. He also stated that when they entered in the room
of Sharmistha, that time they found male baby of Sharmistha was
sleeping in the cot.
During cross-examination, he stated that at present, he is
not a tenant of Pranballav Roy Karmakar and he is residing in his own
house at Rajarbag. House of Pranballav Roy Karmakar is situated on the
adjacent southern side of Udaipur-Agartala road. Many vehicles passes
through that road upto 10/10:30 p.m. in the night. He further stated
that on that relevant point of time, it was summer season and
generally, Sharmistha used to keep the door of her room open till
return of her husband. This witness was declared hostile by the
prosecution and his relevant portion of statement was marked as
Exhibit-P-3, subject to proof by I.O.
19. PW-9, Birbal Roy Karmakar deposed that on 18.07.2014,
police seized one pillow from the room of Pranab in his presence by
preparing seizure list and obtained his signature on the seizure list. The
witness identified his signature on the seizure list marked as Exhibit-P-
4. During cross, nothing came out relevant.
20. PW-10, Paritosh Roy Karmakar is the brother of the
appellant. He deposed that Sharmistha Roy Karmakar was the wife of
his brother, Pranab. In the room of Pranab, he used to reside with
Sharmistha and a male baby and the nick name of the baby is Prasun
and their house is a double storied building. He further stated that he
used to reside in the first floor and Pranab used to reside in the ground
floor. About one year back, one day at about 9:30 p.m. in the night, he
returned to home and when he was in his room, that time, he heard
hue and cry in the ground floor and thereafter, he came down to the
ground floor and found that Sharmistha was lying on the floor of her
room in senseless condition and his brother Pranab was pouring water
on her head. Thereafter, Sharmistha was shifted to hospital by a fire
service vehicle. On the same day in the night, Sharmistha died. He
further stated that on the same day, at about 4:00 p.m. in the
afternoon he saw Sharmistha was loitering in the courtyard with his
wife. He further stated that on the following day of death of
Sharmistha, police came to their house and seized one pillow from the
room of his brother Pranab by preparing seizure list and he signed in
the seizure list. The witness identified his signature on the seizure list
and on identification of the same that was marked as Exhibit-P-4/1.
During cross-examination, he further deposed that on the
death of Sharmistha, there was a tenant namely Rajkumar Jamatia who
used to reside alone and after the incident, Rajkumar Jamatia left their
house.
21. PW-11, Swarnali Chowdhury deposed that Pranab Ranjan
Roy Karmakar is the elder brother of her husband. Sharmistha was the
wife of Pranab Ranjan Roy Karmakar. About one and half year back,
Sharmistha died. Both Sharmistha and the witness used to reside in the
same house. Her room was in the first floor and the room of Sharmistha
was in the ground floor. On the day of her death, she last met with her
at about 6:00 p.m. in the evening when Sharmistha came to her room
to collect milk for her baby and at about 9:30 p.m., she heard hue and
cry of the Pranab Ranjan Roy Karmakar from the ground floor and
thereafter, she went to the room of Sharmistha and found her lying in
senseless condition on the floor. Thereafter, she was shifted to hospital
by a fire service vehicle and when the doctor declared her dead. During
cross, she deposed that she herself and her husband, her brother-in-
law, Pranab and her parents-in-law were used to reside in the same
house.
22. PW-12, Pratima Bhowmik deposed that she used to reside in
the house of Pranballav Roy Karmakar from the year 2013 to 2015 and
she identified Pranab Ranjan Roy Karmakar in the Court. She further
deposed that she knew the wife of Pranab namely Sharmistha Roy
Karmakar. Sharmistha died on 17.06.2014 in the house of Pranab.
Room of Sharmistha was contiguous to her room. On that day at about
9:30 p.m. in the night, Pranab suddenly called her to come to his room
and on going there, she found that Sharmistha was lying on the sofa
set in unconscious condition and thereafter, she herself, her husband
and others gathered, poured water on the head of Sharmistha but she
did not regain her sense and at about 1:00 a.m. in the night, police
came and informed that Sharmistha had expired. During cross, nothing
came out relevant.
23. PW-13, Sanjib Chakraborty deposed that he used to reside in
the residence of Pranballav Roy Karmakar of Chanban from the year
1997 to 2015. He knew wife of Pranab namely Sharmistha. About 1 ½
year back, she died and on the date of her death in the night, he was
doing the job of private tutor in the adjacent house at about 8:30 p.m.
That time, his wife, Babli Chakraborty informed him that Sharmistha
was ill and his wife asked him to go back to house. Accordingly, he
returned home and found that Pranab was pouring water on the head of
Sharmistha in his room but he did not notice whether Sharmistha was
conscious or not. Meanwhile, fire service came and brought Sharmistha
to TSD Hospital and after sometime, he got the information that
Sharmistha died. He further stated that he did not notice anything
wrong in the character and habit of Pranab Ranjan Roy Karmakar. This
witness was declared hostile by the prosecution and his portion of
evidence was marked as Exhibit-P-5, subject to proof by I.O.
During cross-examination, he stated that he is not presently
residing in the residence of Pranballav Roy Karmakar.
24. PW-15, Suman Kr. Chakraborty deposed that on 08.08.2014,
he was posted as Deputy Director-cum-Asst. Chemical Examiner in the
Tripura Forensic Science Laboratory. On that day, he received one
sealed packet from DSP, Head Quarter, Udaipur, containing four
exhibits marked as Exhibit-A to D. According to him, Exhibits A, B and C
were found to contain preservative and viscera samples namely
stomach, and proximal part of intestine, liver and kidney and Exhibit D
was a pillow with blue white printed cover. The said exhibits were
examined from 09.09.2014 to 26.09.2014 and on examination of
Exhibits A to C, he found negative for the presence of Organo Chloro,
Organo Phosphorus and Carbonate group of pesticide, Ethyl alcohol and
opiate derivatives. Exhibit A was determined to be Sodiumchloride.
Exhibit D was not examined in absence of any control blood sample of
deceased for comparison. Exhibit D could not be examined as no
sample of control blood sample of deceased was preserved and sent to
them by the police authority. Thereafter, he prepared his report on
29.9.2014 which was forwarded by their Director by his letter dated
29.09.2014. He identified the report along with the forwarding of
Director marked as Exhibit-P8 series and his signature in the report
marked as Exhibit-P-8/1.
During cross-examination, he stated that he did not mention
in his report for what purpose the samples were sent to him for
examination or to ascertain which matter. He further volunteered that
his opinion was on the basis of series of examinations.
25. PW-16, Sabyasachi Singh, deposed that on 18.07.2014, he
was posted as DCM-cum-Executive Magistrate, Udaipur Sub-Division.
On that day, as per requisition of R.K. Pur Women P.S and also as per
instruction of SDM, Udaipur, he conducted inquest over the dead body
of deceased Sharmistha Roy Karmakar in the morgue of TSD Hospital,
Udaipur at about 2:19 p.m. on that day and on examination of the dead
body, he found signs of bruises which was not however prominent. As
such it was not possible to determine as to whether said bruises were
recent or not. No ligature mark was visible. However, there was clouted
blood in and around the right cheek. There was no sign of struggling or
any violence mark. Apparently, it seems that it might be a case of
homicidal death by suffocation caused with a pillow. However, the
cause of death could be determined by post mortem examination.
Some photographs of the dead body were taken and handed over to
police. He further stated that Paritosh Roy Karmakar at the time of
inquest stated him that at about 9:30p.m. when he returned home, he
heard some screaming sound and found the deceased was lying on the
floor and his brother was pouring water on the head of the deceased
and sensing something suspicious, he informed fire service and then
the fire service came and took the deceased to Hospital where she was
declared dead. He further stated that Bakul Karmakar, relative of the
deceased, informed her that at about 10:30p.m., Pranab informed
about serious illness of son of deceased and immediately she rushed to
Hospital and found the dead body of deceased was lying. Praloy
Karmakar (father of the deceased) stated him in the hospital that after
being informed about the incident, he rushed to Hospital and found his
daughter dead. He also informed him about the repeated incident of
beating, torturing and demand of dowry and also alleged that his son-
in-law killed his daughter thereafter he prepared his report and signed
the same. He identified the report marked as Exhibit-P-9 and his
signature on the report marked as Exhibit-P-9/1. During cross, nothing
came out relevant.
26. PW-17, Dr. Debasish Pal deposed that on 18.07.2014, he
was posted as medical officer of TSD Hospital, Udaipur. On that day, he
conducted autopsy on the dead body of one Sharmistha Roy Karmakar
aged about 20 years, wife of Pranab Ranjan Roy Karmakar of Chanban,
Udaipur with reference to Udaipur Women PS case No.10 dated
17.07.2014. He further deposed that dead body was identified by
Constable, Sunanda Chakraborty, Dr. Dhruba Das and Dr. Rituparna
Dey also assisted him in doing the autopsy. After examination of the
dead body, they found the followings -
"Rigor mortis was found and post mortem straining was
seen and fixed. There was no external injury on the body.
There was no foul smell found in the oral cavity.
Congestion of the face and head area were found.
Peticheal subconjuctival haemorrhage‟s were found in
both eyes. Bluish discoloration of the extrimities were
seen. Bluish discoloration of the lips, tongue, ear lobes
were seen. Laryings was congested and edematous. All
other body organs and bone structures were healthy and
intact. Brain and lungs were congested and edematous.
Heart, liver kidney, spleen were congested."
Thereafter, they opined that the death was due to asphyxia
which was due to ante mortem suffocation and homicidal in nature. He
further deposed that the probable age of the death was 10 to 18 hours
from the time of holding postmortem examination. He prepared the
inquest report and signed the same and his two other colleagues were
also signed the same. The report was marked as Exhibit-P-10. His
signature marked as Exhibit-P-10/1. Signature of Dr. Rituparna Dey
marked as Exhibit-P-10/2. Signature of Dr. Dhruba Das marked as
Exhibit-P-10/3. After that, they received the report from State Forensic
Science Laboratory through Police and report of laboratory was
negative and as such the opinion given by them remained unaltered. He
further stated that receipt of the report was indicated by him in the post
mortem report later on and again he signed on the report on
11.12.2014 marked as Exhibit-P-10/4. After post mortem, he gave
requisition for chemical and histopathological examination of the said
preserved stomach contents, etc and identified the requisition
submitted by him marked as Exhibit-P-11 and his signature marked as
Exhibit-P-11/1.
During cross-examination, he stated that they did not
separately and specifically mentioned on what basis they came to the
findings that it was a case of ante mortem suffocation but by their
observation given in the report, they came to the said conclusion. He
further deposed that at the time of post mortem examination, they
maintained some note-sheets and after perusing the same, they
prepared the post mortem report and after preparation of post mortem
report, they immediately sent the same to the I.O. He further deposed
that the report was prepared on 18.07.2014 and at the time of final
opinion, he signed in the post mortem report on 11.12.2014 sitting in
the hospital. He further deposed that on 11.12.2014, the report was
placed to him by IO along with the report of SFSL.
27. PW-14, Smti Mina Kumari Debbarma is the I.O. She deposed
that on 18.7.2014, she was posted as DSP, Headquarter, Gomati
District, Udaipur. On that day, WSI Madhabi Debbarma on receipt of
FIR/ejahar laid by one Chanda Karmakar registered women police case
No.93/14 under Section 498-A/304-B of IPC. He identified the
endorsement and signature of Madhabi Debbarma in the ejahar marked
as Exhibit-P-1/2. Thereafter, said Madhabi Debbarma filed up the
printed form of FIR and then she herself took up the investigation of
this case and identified the printed form of FIR marked as Exhibit-P-6.
During investigation, she examined witnesses and recorded their
statements caused arrest of the accused, visited place of occurrence,
prepared hand sketch map with index and on identification marked as
Exhibit-P-7 series. She also stated that in course of examination, she
examined witnesses namely, Sanjib Chakraborty, Satyanarayan
Bhowmik, Paritosh Roy Karmakar, Birbal Roy Karmakar and Swarnali
Chowdhury under Section 161 of Cr.P.C. Thereafter she collected PM
report from TSD Hospital. She also collected six numbers of jars
containing stomach, liver, kidney, etc of the dead body of Sharmistha
Roy Karmakar from the hospital and seized the same by preparing
seizure list in presence of witnesses marked as Exhibit-P-2. She seized
one pillow by preparing seizure list in presence of witnesses and
identified the said seizure list marked as Exhibit-P-4/2. She collected
report of SFSL and after completion of investigation, she laid charge-
sheet against the accused-appellant.
During cross, she stated that in the charge-sheet, she did
not cite Dr. Debasish Pal as witness and further stated that by mistake,
she did not cite him as witness. She did not cite Suman Kr.
Chakraborty, Deputy Director-cum-Asst. Chemical Examiner as witness.
She did not examine sister of the deceased namely Sushmita Karmakar.
Father of the deceased, Pralay Karmakar was examined by her but his
statement was not recorded. These are the sum and substance on
record of the prosecution in respect of determination of the charge-
sheet.
28. From the evidence on record of the prosecution, it appears to
us that there is no dispute on record regarding the fact of death of the
deceased on the alleged day. But we are to see how far the present
appellant was responsible for the alleged offence and how far the
prosecution has been able to prove the charges beyond reasonable
doubt against the appellant before the Learned Court below. It is crystal
clear that there is no dispute on record in respect of the fact of
marriage of the appellant with the deceased victim and also the fact
that out of their wedlock, a male issue was begotten to them who was
eleven months old at the time of death of his mother. To substantiate
the charges as already stated, 17 nos. of witnesses were produced in
this case by the prosecution but the appellant by the trend of cross-
examination could not discard the evidence on record of the prosecution
regarding death of the deceased on that day. Here in the case at hand,
there is no direct eye witness to see that the present accused-appellant
has committed murder of the deceased. So, this case is entirely based
on circumstantial evidence.
29. Now, we are to see what sort of circumstances could be
proved by the prosecution in this case. If we go through the evidence of
the informant and her sister, it is clear that at the time of marriage as
per demand of the appellant they gave Rs.40,000/- in cash and gold
ornaments to the appellant. The appellant by way of cross-examination
could not discard that part of evidence of the prosecution that the
appellant at the time of marriage did not demand any dowry from the
informant party. Now, we would like to refer herein below the relevant
definition of „dowry‟ as provided in Section 2 of the Dowry Prohibition
Act 1961:
"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 I.-- For the removal of doubts, it is
hereby declared that any presents made at the time
of a marriage to either party to the marriage in the
form of cash, ornaments, clothes or other articles,
shall not be deemed to be dowry within the
meaning of this section, unless they are made as
consideration for the marriage of the said parties."
Explanation II.-- The expression "valuable security"
has the same meaning as in Section 30 of the
Indian Penal Code (45 of 1860)."
30. In course of hearing, Learned Counsel for the appellant
referred few citations in support of his arguments. In Satvir
Singh and Others vs. State of Punjab and Anr. dated
27.09.2001 reported in (2001) 8 SCC 633 Hon‟ble the Apex
Court in Para nos. 21 and 22 observed as under:
"21. 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 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.
22. 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 to her death is the pivot
indicated by that 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 the harassment or cruelty 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"."
Learned Counsel for the appellant submitted that before
the Learned Court below prosecution could not adduce any
material evidence to substantiate the charge of demand of dowry
by the appellant and from the evidence of PW-6 and PW-7, it
cannot be conclusively said that the appellant was held guilty to
the charge of demand of dowry in connection with the marriage
between the deceased and the appellant but the Learned Court
below did not consider the matter in this respect.
31. In Biswajit Halder Alias Babu Halder and Ors. vs.
State of W.B. dated 19.03.2007 reported in (2008) 1 SCC 202,
Hon‟ble the Apex Court in Para nos. 10 and 13 observed as under:
"10. The basic ingredients to attract the provisions
of Section 304-B are as follows:-
(1) the death of a woman should be caused
by burns or fatal injury or otherwise than
under normal circumstances;
(2) such death should have occurred within
seven years of her marriage;
(3) she must have been subjected to cruelty
or harassment by her husband or any relative
of her husband; and
(4) such cruelty or harassment should be for
or in connection with demand for dowry.
13. If Section 304-B IPC is read together
with Section 113-B of the Evidence Act, a
comprehensive picture emerges that if a married
woman dies in an unnatural circumstances at her
matrimonial home within 7 years from her marriage
and there are allegations of cruelty or harassment
upon such married woman for or in connection with
demand of dowry by the husband or relatives of the
husband, the case would squarely come under
"dowry death" and there shall be a presumption
against the husband and the relatives."
Referring the aforesaid citation, Learned Counsel for
the appellant further submitted that to substantiate the charge
under Section 304-B of IPC, the prosecution should prove that the
death of the deceased was caused by burn or fatal injury or
otherwise than under normal circumstances. Such death should
have occurred within seven years of her marriage or she must
have been subjected to cruelty or harassment by her husband or
any relative of her husband or such cruelty or harassment should
be for or in connection with demand for dowry.
Referring the same Learned Counsel submitted that in
the case at hand there is no evidence on record of the prosecution
like that as mentioned above and in absence of such evidence,
there was no scope to convict the appellant under Section 498-A
of IPC read with Section 304-B of IPC.
32. In Charan Singh alias Charanjit Singh vs. State of
Uttarakhand dated 20.04.2023 reported in (2023) SCC OnLine
SC 454, Hon‟ble the Supreme Court in Para nos. 10, 11, 12.29
and 12.31 observed as under:
"10. The conviction of the appellant is under
Sections 304B and 498A IPC raising presumption
regarding dowry death within seven years of
marriage. To appreciate the arguments raised by
the learned counsel for the parties, a perusal
of Section 304B and 498A IPC and Section 113B of
the Indian Evidence Act would be required. The
same are extracted hereinbelow:-
"304B. Dowry death .-- (1) Where the death
of a woman is caused by any burns or bodily
injury or occurs otherwise than under normal
circumstances within seven years of her
marriage and it is shown that soon before her
death she was subjected to cruelty or
harassment by her husband or any relative of
her husband for, or in connection with, any
demand for dowry, such death shall be called
"dowry death", and such husband or relative
shall be deemed to have caused her death.
Explanation.--For the purpose of this sub-
section, "dowry" shall have the same
meaning as in Section 2 of the Dowry
Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be
punished with imprisonment for a term which
shall not be less than seven years but which
may extend to imprisonment for life.
498-A. Husband or relative of husband of a
woman subjecting her to cruelty -- Whoever,
being the husband or the relative of the
husband of a woman, subjects such woman
to cruelty shall be punished with
imprisonment for a term which may extend to
three years and shall also be liable to fine.
Explanation.--For the purposes of this
section, "cruelty" means --
(a) any wilful conduct which is 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; or
(b) harassment of the woman where such
harassment is with a view to coercing her
or any person related to her to meet any
unlawful demand for any property or
valuable security or is on account of
failure by her or any person related to her
to meet such demand.
113B. Presumption as to dowry death.--
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.
Explanation.--For the purposes of this
section, "dowry death" shall have the
same meaning as in Section 304-B of
Penal Code, 1860 (45 of 1860)".
11. The interpretation of Sections 304B and 498A
IPC came up for consideration in Baijnath's case
(supra). The opinion was summed up in paras 25 to
27 thereof, which are extracted below:-
"25. Whereas in the offence of dowry death
defined by Section 304-B of the Code, the
ingredients thereof are:
(i) death of the woman concerned is by
any burns or bodily injury or by any
cause other than in normal
circumstances, and
(ii) is within seven years of her marriage,
and
(iii) that soon before her death, she was
subjected to cruelty or harassment by
her husband or any relative of the
husband for, or in connection with,
any demand for dowry.
The offence under Section 498-A of the Code
is attracted qua the husband or his relative if
she is subjected to cruelty. The Explanation
to this Section exposits "cruelty" as:
(i) any wilful conduct which is 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), or
(ii) harassment of the woman, where
such harassment is with a view to
coercing her or any person related to
her to meet any unlawful demand for
any property or valuable security or
is on account of failure by her or any
person related to her to meet such
demand.
26. Patently thus, cruelty or harassment of
the lady by her husband or his relative for or
in connection with any demand for any
property or valuable security as a demand for
dowry or in connection therewith is the
common constituent of both the offences.
27. The expression "dowry" is ordained to
have the same meaning as in Section 2 of the
Dowry Prohibition Act, 1961. The expression
"cruelty", as explained, contains in its
expanse, apart from the conduct of the
tormentor, the consequences precipitated
thereby qua the lady subjected thereto. Be
that as it may, cruelty or harassment by the
husband or any relative of his for or in
connection with any demand of dowry, to
reiterate, is the gravamen of the two
offences."
12. As the aforesaid case was also pertaining to
dowry death, presumption under Section 113B of
the Indian Evidence Act was also discussed in detail
in paras 29 to 31 of the aforesaid judgment. The
same are extracted below:-
"29. Noticeably this presumption as
well is founded on the proof of cruelty
or harassment of the woman dead for
or in connection with any demand for
dowry by the person charged with the
offence. The presumption as to dowry
death thus would get activated only
upon the proof of the fact that the
deceased lady had been subjected to
cruelty or harassment for or in
connection with any demand for dowry
by the accused and that too in the
reasonable contiguity of death. Such a
proof is thus the legislatively mandated
prerequisite to invoke the otherwise
statutorily ordained presumption of
commission of the offence of dowry
death by the person charged
therewith."
12.31. The legislative primature of relieving the
prosecution of the rigour of the proof of the often
practically inaccessible recesses of life within the
guarded confines of a matrimonial home and of
replenishing the consequential void, by according a
presumption against the person charged, cannot
be overeased to gloss over and condone its failure
to prove credibly, the basic facts enumerated in the
sections involved, lest justice is the casualty."
Referring the above, Learned Counsel further submitted
that prosecution before the Learned Court below could not adduce
any material evidence to draw any adverse presumption or
inference under Section 113B of the Indian Evidence Act to
substantiate the charge against the appellant. Here, we would like
to refer hereinbelow the relevant provision of Section 113B of the
Indian Evidence Act which reads as under:
"113B. Presumption as to dowry death.-
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 has
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.
Explanation. --For the purposes of this section,
"dowry death" shall have the same meaning as in
section 304B of the Indian Penal Code (45 of
1860)."
33. Finally, Learned Counsel for the appellant submitted
that prosecution before the Learned Court below could not
produce the pillow for marking as exhibits. Secondly, prosecution
could not prove as to how the deceased was killed or murdered
and also could not prove the motive behind the crime.
Prosecution also could not produce any cogent, coherent and
persuasive material evidence on record that it is the present
appellant who committed murder of the deceased and urged
before the Court to allow this appeal and to grant benefit of doubt
to the appellant.
34. Learned Addl. P.P. at the time of hearing, strongly
countered the submission made by Learned Counsel for the
appellant and submitted that the appellant before the Learned
Trial Court below in course of trial could not raise any
circumstance to disbelieve the evidence on record of the
prosecution. He fairly submitted that although in the given case,
there is no direct eye witness who had seen to commit murder of
the deceased by the appellant but from the circumstances, right
from the time of marriage till the death of the deceased, it is clear
that the present appellant committed murder of his wife i.e. the
deceased and there is no room to disbelieve the evidence on
record of the prosecution in this regard. Learned Addl. P.P. further
submitted that from the evidence on record i.e. specifically the
evidence of PW-6 and PW-7, it is clear that the appellant
demanded money at the time of marriage which attracts Section 2
of the Dowry Prohibition Act and after the marriage, the appellant
on several occasions, physically assaulted the deceased victim.
Not only that he made further demand of Rs.50,000/-, but as the
same could not be meet up, so, he also assaulted his father-in-
law, assaulted the deceased and finally committed murder of his
wife. Learned Addl. P.P. also referred the evidence of PW-8, Satya
Narayan Bhowmik, who used to reside in the house of the
appellant on that relevant point of time. PW-10, Paritosh Roy
Karmakar, PW-11, Smt. Swarnali Chowdhury, PW-12, Smt.
Pratima Bhowmik and PW-13, Sanjib Chakraborty, who at the time
of alleged occurrence, after hearing hue and cry of the accused-
appellant, came to his room and found the victim in senseless
condition. The appellant regarding the evidence of those witnesses
could not explain as to how the deceased became senseless and
furthermore, in course of his examination under Section 313 of
Cr.P.C., he also could not say anything regarding those part of
material evidence revealed against him during trial before the
Learned Trial Court. Although PW-8 and PW-13 were declared
hostile by the prosecution but except the part of their hostile
evidence from the rest part of evidence, it is clear that the present
appellant committed murder of his wife and the post-mortem
examination report supported the case of the prosecution. PW-9,
Birbal Roy Karmakar deposed that in his presence, Police seized
the pillow. But that pillow could not be produced during the trial.
Although, the same was sent to SFSL for examination but for lack
of any control blood sample of the deceased, the same could not
be examined by the SFSL. But Learned Addl. P.P. fairly submitted
that PW-16, Sabyasachi Singh, DCM, who in his inquest report
(Exhibit P-9/1) in column No.14 stated that "It might be a case of
homicidal death by suffocation caused with pillow however, the
exact cause of death could be determined by post-mortem
examination." The appellant regarding that entry could not explain
anything before the Learned Trial Court, nor tested anything by
cross-examination to the said witness. Post-mortem report also
disclosed as to how the deceased was murdered. To substantiate
his submissions, Learned Addl. P.P. referred the following
citations.
35. In Trimukh Maroti Kirkan vs State of Maharashtra
dated 11.10.2006, reported in (2006) 10 SCC 681, Hon‟ble the
Supreme Court in para nos. 20, 21 and 22 observed as under:
"20. In Ram Gulam Chaudhary v. State of
Bihar :(2001) 8 SCC 311 the accused after
brutally assaulting a boy carried him away
and thereafter the boy was not seen alive nor
his body was found. The accused, however,
offered no explanation as to what they did
after they took away the boy. It was held that
for the absence of any explanation from the
side of the accused about the boy, there was
every justification for drawing an inference
that they had murdered the boy. It was
further observed that even though Section
106 of the Evidence Act may not be intended
to relieve the prosecution of its burden to
prove the guilt of the accused beyond
reasonable doubt, but the section would
apply to cases like the present, where the
prosecution has succeeded in proving facts
from which a reasonable inference can be
drawn regarding death. The accused by virtue
of their special knowledge must offer an
explanation which might lead the Court to
draw a different inference.
21. In a case based on circumstantial
evidence where no eyewitness account is
available, there is another principle of law
which must be kept in mind. The principle is
that when an incriminating circumstance is
put to the accused and the said accused
either offers no explanation or offers an
explanation which is found to be untrue, then
the same becomes an additional link in the
chain of circumstances to make it complete.
This view has been taken in a catena of
decisions of this Court. [See State of Tamil
Nadu v. Rajendran :(1999) 8 SCC 679 (SCC
para 6); State of U.P. v. Dr. Ravindra Prakash
Mittal :AIR 1992 SC 2045 (SCC para 39 : AIR
para 40); State of Maharashtra v.
Suresh :(2000) 1 SCC 471 (SCC para
27); Ganesh Lal v. State of Rajasthan :(2002)
1 SCC 731 (SCC para 15) and Gulab Chand v.
State of M.P. :(1995) 3 SCC 574 (SCC para
4)].
22. Where an accused is alleged to have
committed the murder of his wife and the
prosecution succeeds in leading evidence to
show that shortly before the commission of
crime they were seen together or the offence
takes place in the dwelling home where the
husband also normally resided, it has been
consistently held that if the accused does not
offer any explanation how the wife received
injuries or offers an explanation which is
found to be false, it is a strong circumstance
which indicates that he is responsible for
commission of the crime. In Nika Ram v.
State of H.P. :AIR 1972 SC 2077 it was
observed that the fact that the accused alone
was with his wife in the house when she was
murdered there with 'khukhri' and the fact
that the relations of the accused with her
were strained would, in the absence of any
cogent explanation by him, point to his
guilt. In Ganeshlal v. State of
Maharashtra :(1992) 3 SCC 106 the appellant
was prosecuted for the murder of his wife
which took place inside his house. It was
observed that when the death had occurred
in his custody, the appellant is under an
obligation to give a plausible explanation for
the cause of her death in his statement
under Section 313 CrPC. The mere denial of
the prosecution case coupled with absence of
any explanation were held to be inconsistent
with the innocence of the accused, but
consistent with the hypothesis that the
appellant is a prime accused in the
commission of murder of his wife. In State of
U.P. v. Dr. Ravindra Prakash Mittal :AIR 1992
SC 2045 the medical evidence disclosed that
the wife died of strangulation during late
night hours or early morning and her body
was set on fire after sprinkling kerosene. The
defence of the husband was that wife had
committed suicide by burning herself and
that he was not at home at that time. The
letters written by the wife to her relatives
showed that the husband ill-treated her and
their relations were strained and further the
evidence showed that both of them were in
one room in the night. It was held that the
chain of circumstances was complete and it
was the husband who committed the murder
of his wife by strangulation and accordingly
this Court reversed the judgment of the High
Court acquitting the accused and convicted
him under Section 302 IPC. In State of T.N. v.
Rajendran :(1999) 8 SCC 679 the wife was
found dead in a hut which had caught fire.
The evidence showed that the accused and
his wife were seen together in the hut at
about 9.00 p.m. and the accused came out in
the morning through the roof when the hut
had caught fire. His explanation was that it
was a case of accidental fire which resulted in
the death of his wife and a daughter. The
medical evidence showed that the wife died
due to asphyxia as a result of strangulation
and not on account of burn injuries. It was
held that there cannot be any hesitation to
come to the conclusion that it was the
accused (husband) who was the perpetrator
of the crime."
Referring the same, Learned Addl. P.P. drawn the
attention of this Court that from the evidence of the witnesses of
the prosecution, it is clear that when the victim was found in
senseless condition in the room during night, that time the
appellant was very much present and on his hue and cry, the
witnesses appeared and before the Learned Court below those
witnesses also whispered that they assembled to the room of
appellant after hearing the cry of the appellant but the appellant
could not explain anything as to how the deceased became
senseless. Even during examination under Section 313 Cr.P.C. the
appellant remained silent which shows his involvement with the
alleged crime.
36. In State of Uttar Pradesh vs. Krishna Master and
Others dated 03.08.2010, reported in (2010) 12 SCC 324
Hon‟ble the Apex Court in para no.29 observed as under:
"29. At this stage, it would be well to recall to the
memory the weighty observations made by this
Court as early as in the year 1988 relating to
appreciation of evidence and the duties expected of
a Judge presiding over a criminal trial. In State of
U.P. v. Anil singh, :AIR 1988 SC 1998, it is observed
as under :
"...in the great majority of cases, the
prosecution version is rejected either for
want of corroboration by independent
witnesses, or for some falsehood stated or
embroidery added by witnesses. In some
cases, the entire prosecution case is doubted
for not examining all witnesses to the
occurrence. The indifferent attitude of the
public in the investigation of crimes could
also be pointed. The public is generally
reluctant to come forward to depose before
the court. It is, therefore, not correct to
reject the prosecution version only on ground
that all witnesses to occurrence have not
been examined. It is also not proper to reject
the case for want of corroboration by
independent witnesses if the case made out
is otherwise true and acceptable. With regard
to falsehood stated or embellishments added
by the prosecution witnesses, it is well to
remember that there is a tendency amongst
witnesses in our country to back up a good
case by false or exaggerated version. It is
also experienced that invariably the
witnesses add embroidery to prosecution
story, perhaps for the fear of being
disbelieved. But that is no ground to throw
the case overboard, if true, in the main. If
there is a ring of truth in the main, the case
should not be rejected. It is the duty of the
Court to cull out the nuggets of truth from the
evidence unless there is reason to believe
that the inconsistencies or falsehood are so
glaring as utterly to destroy confidence in the
witnesses. It is necessary to remember that a
Judge does not preside over a criminal trial
merely to see that no innocent man is
punished. A Judge also presides to see that a
guilty man does not escape. One is as
important as the other. Both are public duties
which the Judge has to perform."
Referring the same, Learned Addl. P.P. submitted that
although the prosecution could not adduce the father and sister of
the deceased for their examination before the Court but since
from the evidence of the mother and aunt of the deceased it was
established that the appellant was responsible for the murder of
his wife, so, for non-production of those witnesses there is no
scope to disbelieve the evidence on record of the prosecution.
37. In Rajkumar vs. State of Madhya Pradesh dated
25.02.2014, reported in (2014) 5 SCC 353, Hon‟ble the Apex
Court in para no. 24 observed as under:
"24. In Prithipal Singh v. State of Punjab, :(2012) 1
SCC 10, this Court relying on its earlier judgment
in State of W.B. v. Mir Mohammad Omar :(2000) 8
SCC 382, held as under:
"53..... if fact is especially in the knowledge
of any person, then burden of proving that
fact is upon him. It is impossible for the
prosecution to prove certain facts particularly
within the knowledge of the accused. Section
106 is not intended to relieve the prosecution
of its burden to prove the guilt of the accused
beyond reasonable doubt. But the section
would apply to cases where the prosecution
has succeeded in proving facts from which a
reasonable inference can be drawn regarding
the existence of certain other facts, unless
the accused by virtue of his special
knowledge regarding such facts, failed to
offer any explanation which might drive the
court to draw a different inference. Section
106 of the Evidence Act is designed to meet
certain exceptional cases, in which, it would
be impossible for the prosecution to establish
certain facts which are particularly within the
knowledge of the accused." "
Referring the same Learned Addl. P.P. submitted that it
is the appellant who committed murder of his wife i.e. the
deceased and that fact was within his knowledge but just to make
a got up story he called the witnesses raising hue and cry. But at
the same time, the prosecution by the evidence on record of other
witnesses had already established the charges levelled against the
accused-appellant. The appellant could not give any account as to
how the victim became senseless in his presence.
38. In Ashok Kumar vs. State of Haryana dated
08.07.2010, reported in (2010) 12 SCC 350, Hon‟ble the
Supreme Court in para Nos. 17, 18, 19 and 20 further observed as
under:
"17. This Court, in the case of Madhu Sudan
Malhotra v. Kishore Chand Bhandari :(1988)
SCC(Cri) 854], held that furnishing of a list of
ornaments and other household articles such as
refrigerator, furniture and electrical appliances etc.,
to the parents or guardians of the bride, at the time
of settlement of the marriage, prima facie amounts
to demand of dowry within the meaning of Section
2 of the Act. The definition of "dowry" is not
restricted to agreement or demand for payment of
dowry before and at the time of marriage but even
include subsequent demands, was the dictum of
this Court in State of A.P. v. Raj Gopal
Asawa :(2004) 4 SCC 470.
18. The Courts have also taken the view that where
the husband had demanded a specific sum from his
father-in-law and upon not being given, harassed
and tortured the wife and after some days she died,
such cases would clearly fall within the definition of
"dowry" under the Act. Section 4 of the Act is the
penal section and demanding a "dowry", as defined
under Section 2 of the Act, is punishable under this
section. As already noticed, we need not deliberate
on this aspect, as the accused before us has neither
been charged nor punished for that offence. We
have examined the provisions of Section 2 of the
Act in a very limited sphere to deal with the
contentions raised in regard to the applicability of
the provisions of Section 304-B of the Code.
19. We have already referred to the provisions of
Section 304-B of the Code and the most significant
expression used in the Section is "soon before her
death". In our view, the expressions "soon before
her death" cannot be given a restricted or a
narrower meaning. They must be understood in
their plain language and with reference to their
meaning in common parlance. These are the
provisions relating to human behaviour and,
therefore, cannot be given such a narrower
meaning, which would defeat the very purpose of
the provisions of the Act. Of course, these are penal
provisions and must receive strict construction. But,
even the rule of strict construction requires that the
provisions have to be read in conjunction with other
relevant provisions and scheme of the Act. Further,
the interpretation given should be one which would
avoid absurd results on the one hand and would
further the object and cause of the law so enacted
on the other."
20. We are of the considered view that the concept
of reasonable time is the best criteria to be applied
for appreciation and examination of such cases.
This Court in the case of Tarsem Singh v. State of
Punjab :(2008) 16 SCC 155, held that the legislative
object in providing such a radius of time by
employing the words "soon before her death" is to
emphasize the idea that her death should, in all
probabilities, has been the aftermath of such
cruelty or harassment. In other words, there should
be a reasonable, if not direct, nexus between her
death and the dowry-related cruelty or harassment
inflicted on her."
Learned Addl. P.P. submitted that since at the time of
marriage, the appellant demanded dowry from the informant party
which was punishable under Section 2 of the Dowry Prohibition Act
and since the appellant by the art of his cross-examination could
not shaken the evidence on record of the prosecution. So, there
is/was no scope to presume the appellant to be innocent in the
case at hand for the charge of demand of dowry.
39. In Alagupandi alias Alagupandian vs. State of
Tamil Nadu dated 08.05.2012, reported in (2012) 10 SCC 451
the Apex Court in Para No. 26.26 observed as under:
"26.26. This Court, in the said judgment, held as
under: (Namadeo case :(2007) 14 SCC 150
„28. From the aforesaid discussion, it is clear
that Indian legal system does not insist on
plurality of witnesses. Neither the legislature
(Section 134 of the Evidence Act, 1872) nor
the judiciary mandates that there must be
particular number of witnesses to record an
order of conviction against the accused. Our
legal system has always laid emphasis on
value, weight and quality of evidence rather
than on quantity, multiplicity or plurality of
witnesses. It is, therefore, open to a
competent court to fully and completely rely
on a solitary witness and record conviction.
Conversely, it may acquit the accused in spite
of testimony of several witnesses if it is not
satisfied about the quality of evidence. The
bald contention that no conviction can be
recorded in case of a solitary eyewitness,
therefore, has no force and must be
negatived.
29. It was then contended that the only
eyewitness, PW 6 Sopan was none other than
the son of the deceased. He was, therefore,
"highly interested" witness and his
deposition should, therefore, be discarded as
it has not been corroborated in material
particulars by other witnesses. We are unable
to uphold the contention. In our judgment, a
witness who is a relative of the deceased or
victim of a crime cannot be characterised as
"interested". The term "interested"
postulates that the witness has some direct
or indirect "interest" in having the accused
somehow or the other convicted due to
animus or for some other oblique motive.‟
27. It will be useful to make a reference of another
judgment of this Court, in Satbir Singh v. State of
U.P., :(2009) 13 SCC 790, where this Court held as
under:
„26. It is now a well-settled principle of law
that only because the witnesses are not
independent ones may not by itself be a
ground to discard the prosecution case. If the
prosecution case has been supported by the
witnesses and no cogent reason has been
shown to discredit their statements, a
judgment of conviction can certainly be based
thereupon. Furthermore, as noticed
hereinbefore, at least Dhum Singh (PW 7) is
an independent witness. He had no animus
against the accused. False implication of the
accused at his hand had not been suggested,
far less established.‟
28. Again in a very recent judgment in the case
of Balraje v. State of Maharashtra :(2010) 6 SCC
673, this Court stated that:
„30. ...when the eyewitnesses are stated to be
interested and inimically disposed towards
the accused, it has to be noted that it would
not be proper to conclude that they would
shield the real culprit and rope in innocent
persons. The truth or otherwise of the
evidence has to be weighed pragmatically.
The court would be required to analyse the
evidence of the related witnesses and those
witnesses who are inimically disposed
towards the accused. But if after careful
analysis and scrutiny of their evidence, the
version given by the witnesses appears to be
clear, cogent and credible, there is no reason
to discard the same.‟ "
Referring the same, Learned Addl. P.P. submitted that
the Court should lay emphasis on value, weight and quality of
evidence rather than quantity. In the given case the witnesses of
the prosecution in a chain deposed against the appellant. So,
there was no room to discard their evidence in toto and urged for
upholding the conviction imposed upon the appellant by the
Learned Trial Court.
40. We have gone through the evidence on record very
carefully and also the citations as referred by Learned Counsel for
the appellant as well as for the prosecution.
41. It appears to us that there is no dispute on record in
respect of death of the deceased on the alleged day. From the
evidence of the PW-6 and PW-7, it is very much clear that the
appellant at the time of marriage, demanded dowry from the
informant party and accordingly, dowry was given to him. Not only
that after the marriage, he further demanded sum of Rs.50,000/-
and as the same could not be meet up, so, the victim was
subjected to mental and physical torture by the accused-appellant.
The appellant by the art of cross-examination could not discard
their evidences. Furthermore, it appears that the alleged incident
took place within seven years of marriage of the parties and from
the evidence on record of the prosecution, it is also clear that the
appellant at the time of marriage and after the marriage
demanded dowry and caused cruelty upon the victim for illegal
demand of dowry, so, the Learned Court below reasonably and
rightly convicted him under Sections 498-A, 304-B of IPC read
with Section 4 of the Dowry Prohibition Act, 1961. Regarding
applicability of Section 304-B, there is no direct eye witness of the
alleged occurrence of offence but as already stated, from the
evidence of PWs-8, 10, 11, 12 and 13, it appears that prior to the
death of the deceased, on hearing the hue and cry of the
appellant, they came to the room of the accused-appellant and
found the deceased in senseless condition and also found the
appellant to pour water to his wife. The appellant could not give
any explanation in this regard as to how she became senseless. As
already stated, from the post-mortem examination report it has
been found that "the death was due to asphyxia which was due to
ante-mortem suffocation and homicidal in nature." In the inquest
report also the DCM, PW-16 Sabyasachi Chowdhury stated that
"homicidal death by suffocation caused with pillow‟‟. Although
pillow could not be produced for marking as material object but
that was seized during investigation and during trial, there was no
denial from the side of the appellant in this regard.
Meaning of „asphyxia‟ in medical jurisprudence:
In medical jurisprudence. A morbid condition of
swooning, suffocation, or suspended animation,
resulting in death if not relieved, produced by any
serious interference with normal respiration (as. the
inhalation of poisonous gases or too ratified air,
choking, drowning, obstruction of the air passages, or
paralysis of the respiratory muscles) with a
consequent deficiency of oxygen in the blood.
From the evidence on record, it appears that the cause
of death of the deceased was ante-mortem suffocation which
might be caused by pillow resulting death of the deceased.
Further, it appears that it is the appellant who committed murder
of his deceased wife. So, for non-production of pillow for marking
exhibit by the prosecution, there is no scope to disbelieve the
evidence on record of the prosecution. The citations as referred by
Learned Counsel for the appellant cannot be applied for decision of
this case, rather the citations referred by Learned Counsel for the
respondent-State are very much applicable and we have taken the
principles of the said citations in deciding this case and in our
considered view, the present appellant subjected cruelty to the
victim for illegal demand of dowry and ultimately, committed
murder of his wife within 7 years of marriage and it appears to us
that Learned Court below after detailed discussions, reasonably
and rightly delivered the judgment finding the appellant guilty and
sentenced him accordingly, which needs no interference by this
Court at this stage.
42. In the result, the appeal filed by the appellant is
dismissed on contest and stands bereft of merit. The judgment
and order with the sentence of conviction passed by the Learned
Sessions Judge, Udaipur, Gomati Tripura Judicial District in Case
No. S.T.28 (GT/U) of 2015 is hereby upheld and accordingly, it is
affirmed.
Pending application, if any, also stands disposed of.
A Copy of this judgment be transmitted to the Learned
Court below along with the LCR.
JUDGE JUDGE
MOUMITA Digitally signed by
MOUMITA DATTA
DATTA Date: 2024.02.08
15:26:39 -08'00'
Purnita/Deepshikha
