Aftab H. Saikia, J.
1. Heard learned Counsel for the appellant including learned PP, Assam.
2. This criminal appeal has been directed against the judgment and order dated 31.3.05 passed by the learned Sessions Judge, Dhemaji in Sessions Case No. 8(DH)/04 convicting the appellant under Sections 304-B/498 A IPC and sentencing him accordingly to suffer R.I. for 3 (three) years and to a fine of Rs. 5,000/- in default further RI for 3 (three) months under Section 498-A IPC and to suffer imprisonment for life and to pay fine of Rs. 10,000/-in default R.I. for 1 (one) year under Section 304-B IPC.
3. Prosecution case in brief is that the victim-Krishna Paul was given marriage to the accused-Robindra Paul/appellant in the year 1997. The married life between the accused and the victim was not at all peaceful. It was alleged that the accused started demanding dowry from the victim, particularly gold ornaments. The victim was accordingly physically assaulted by the accused. After about 6/7 months of the marriage, the victim came to her father and reported him of the demand for dowry from the side of the accused. After few days the family members of the accused came to the house of the father of the victim and giving assurance that there would be no such harassment again, they took the victim to the house of the accused-Robindra. But, the cruelty increased and the victim had to come to the house of her father again and again. She was treated by Doctor. The poor father of the victim failed to meet the demand of the accused and his daughter had to suffer the consequence.
4. On the morning of 11.9.98 the elder brother of the accused-Robindra came to the house of the father of the victim and reported him that he should go to the house of the accused. He was not reported the actual fact and while he came near Silapathar College, the elder brother of the accused reported him that the victim had died of burning. The father of the victim went to the place of occurrence and found his daughter lying dead in a room of the house of the accused with burn injuries. He then lodged written FIR with the police of Silapathar Police Station.
5. Police registered a case and started investigation. Inquest-Report over the dead body was held. The dead body was sent to Dhemaji Civil Hospital for Post Mortem Examination. The statements of witnesses were recorded Police also found that the accused-Radha Rani Kar, sister of the accused-Rabindra, was seen by some persons leaving the place of occurrence soon after the incident. Hence, after investigation police found the case well established against the accused-Robindra Paul and his sister-Radha Rani Kar under Sections 498-A/201/302 IPC and submitted Charge-sheet against both the accused persons.
6. The case under Section 302 IPC being triable exclusively by the Court of Sessions Judge, the learned Judicial Magistrate at Dhemaji committed the case to the Court of Sessions.
7. Accordingly, on being so committed, the accused persons appeared in the trial Court. Upon perusal of records and hearing learned Counsel for both sides, a prima facie case under Sections 498-A/34,302/34 IPC was found to have been made out against them. Subsequently, charges under Sections 304-B and 306 IPC were also found to be made out against them. Accordingly, the charges were framed and explained to the accused persons to which they pleaded not guilty.
8. During the trial the prosecution examined as many as six witnesses including two official witnesses namely-P.W. 5, Dr. Hamen Buragohain who conducted the autopsy over the dead body of the deceased, Smti. Krishna Paul and P.W. 6, Sri Nandeswar Pegu, Investigating Officer (for short, 'the I.O.')
9. The learned Sessions Judge, having meticulously considered the material evidence on record particularly the testimony of P.W. 1, the father of the deceased and also upon hearing the learned Counsel for the parties, found the appellant guilty of the offence under the above mentioned Sections and accordingly sentenced him as indicated above while other accused Smti. Radharani Kar was acquitted giving her benefit of doubt. Hence, this appeal assailing the impugned conviction and sentence so handed down to the appellant by the learned Sessions Judge, Dhemaji.
10. Mr. Bhattacharjee, learned Counsel representing the appellant, in support of the appeal and assailing the impugned conviction and sentence, has submitted that the deposition of the witnesses particularly, P.W. 1 so relied upon by the learned Sessions Judge as examined by the prosecution, is not reliable and trustworthy and as such the same cannot be a basis for conviction of the appellant under Section 304-B IPC read with Section 498-AIPC. His main thrust is that the P.W. 1, being the father of the deceased, having the close relationship of father and daughter, failed to make out a case for prosecution to attract the conviction of the appellant under those sections. According to him, this witness failed to give categorical evidence so as to rope in the appellant for killing his daughter. That apart, it is also contended on behalf of the appellant that though admittedly there was no eye witness, there is no such convincing or compelling circumstances to make record does not disclose any such circumstances so as to inspire confidences of killing of the deceased by the appellant.
11. In support of his submission, the learned Counsel for the appellant has relied on the following decisions:
(i) : Sunil Bajaj v. State of M.P.
(ii) : Vithal Tukaram More and Ors. v. State of Maharashtra
(iii) : State of Goa v. Sanjay Thakran and Anr.
12. Per contra, Mrs. A. Begum, learned PP supporting the impugned conviction and sentence, has argued that the learned Sessions Judge was justified and correct in arriving at the finding that the appellant committed the offence of killing his wife and the same was duly proved through the evidence of P.W. 1, In his deposition he was categorical in saying that her daughter was the victim of dowry demand and as a result of cruelty and harassment subjected to her by the appellant, she had to lay down her precious life. It is also contended on behalf of the State that all the four ingredients required for committing the offence of dowry death as provided under Section 304-B have been duly fulfilled in the instant case and as such the impugned conviction and sentence deserve no interference by this Court. To drive home her submission, the learned PP, Assam has relied upon a case reported in (Bhimpapa Chandappa Hosamani and Ors. v. State of Karnataka).
13. We have given our anxious consideration to the extensive arguments so canvassed on behalf of the rival parties and also meticulously perused the entire material evidence on record including the deposition of the witnesses particularly, P.W. 1, Sri Ranjit Dey, the father and informant and P.W. 5 Dr. Hamen Buragohain.
14. On meticulous analysis, it is seen that the witness P.W. 1, being the father of the deceased, testified that his daughter was married to the appellant in the month of September, 1998 i.e., 15 to 16 months prior to the occurrence of the incident. According to him, immediately after the marriage the appellant started torturing and beating his daughter and after 6/7 months of her marriage Krishna, his daughter, came home and told that the appellant had beaten her up. However, the family members of the appellant came later on and took away Krishna saying that such incident would not take place again. But the accused/appellant again started beating Krishna excessively and she again came to his house. This time he saw mark of injury in her person for which he administered medicine to her but she was not examined by any Doctor. Coming to the residence, Krishna told that the accused asked for gold ornaments. He being a poor man he could not give excess dowry. Thereafter, sending a letter to him in the hand of one of his son Rabindra's elder brother Sitendra asked him to send Krishna to the house of the appellant. Then he again sent her. About one month after the accused Robindra's elder brother came to his house and asked him to go their house and he gave him information around 7 a.m. When he asked as to why he should go there, he told that going there he would know the cause. When he reached near Silapathar College, the said Robindra told him that his daughter had burnt to death with fire. Then he returned home instead of going to the place of occurrence and he narrated the occurrence to his family members and thereafter he went to the house of appellant along with the family members. Going there he saw that his daughter was lying dead inside the house of Robindra. The door of the house was locked from the outside and the door was opened on being pushed by some one. He further deposed that the hair of the deceased was not burnt. The clothes covering the chest were burned by fire. He saw injury in the private part and in different parts of the body. He was categorical in adducing evidence that he saw none of the family members of the accused there. When he reached the place the neighbours came. He also stated that his house was one mile away from their house. Then he lodged Ejahar, Ext. 1 with the concerned police station.
15. In cross this witness stated that in the morning on 11.9.98 Ramendra, the elder brother of the accused informed him about the occurrence and it was 7 O'clock at that time. When he received the information his son-in-law was ploughing them land of Rongman Misang which was in front of his house. He saw it. He saw that the accused was ploughing from about 15 minutes before Ramendra gave him the information about the occurrence. It is noticed in the cross that this witness was not confronted with the question as to whether his daughter was either tortured or harassed by the appellant or his relatives demanding dowry. It is also seen that no attempt has been made to dislodge the evidence of his witness in cross.
16. So far as the testimony of other witnesses of P.W. 2, P.W. 3 and P.W. 4 is concerned, having meticulously scanned the deposition of those witnesses, we do not find any material on record as regards subjection of the deceased to cruelty or harassment demanding dowry.
17. None the less, from the medical evidence adduced by P.W. 5, the Doctor, it is found that the deceased suffered the following injuries.
There were burns of hairs, eye-brows, public hair and blackening of the skin present but blister not found.
There was odour of kerosene oil present.
Reaction of redness was found.
Pharynx is congested.
Oesophague-healthy.
Right lung: Congested.
Left lung-Congested.
Heart-Full of blood
Brain-Congested.
Injuries:
1) Body is in pugilistic in posture.
2) Blackening of whole skin.
3) Smell of kerosene oil.
4) Lungs and trachea were congested with a Deposit of froth.
5) Presence of line of redness.
18. The Doctor in his opinion stated that the cause of death was due to burns caused by kerosene oil which was ante-mortem.
19. In the backdrop of above testimony of witnesses, basically, P.W. 1 and P.W. 5, the cardinal question to be answered in this appeal is as to whether the testimony of P.W. 1, being the solitary and close relative of the deceased, can be accepted as reliable and trustworthy for conviction of the appellant under Section 304-B read with Section 498-AIPC.
20. In a judicial pronouncement in case of Barati v. State of U. P. reported in , the Apex Court, while delving upon the scope of reliability of a related witness, in paragraph 13 held as follows:.Close relatives of the deceased would normally be most reluctant to spare the real assailants and falsely mention the name of another person as the one responsible for causing injuries to the deceased....
21. In an another judicial authority rendered by this Court in a case of State of Assam v. Sofiuddin Sheikh and Ors. reported in 1981 Crl. L.J. NOC 4 (Gau.), a Division Bench of this Court dealing with Section 3 of the Evidence Act referring to the relationship of the witnesses held as follows:
Relationship of the witnesses by itself, is no ground for rejecting their testimony if it is otherwise consistent, clear, cogent and in conformity with natural probabilities so as to contain a ring of truth around it. Corroboration, of course, as a matter of prudence, may be looked for, but the court can base a conviction without corroboration, if in its opinion it is reasonably safe to act upon such testimony without corroboration. Relationship again has to be understood in a relative sense, for, it is common experience that litigations and murders take place even between closest of the relations like father and son, brother and brother, husband and wife, not to speak of distant ones. In such cases nearness of relationship may not always be indicative of interest or partisan nature. Neighbours and castemen are not interested witnesses.
22. It would be at this stage apt and necessary to refer to the provision of law laid down under Section 304-B IPC which has been inserted by way of amendment effected by Act 43 of 1986 operating with effect from 19.11.1986 and the same reads as follows:
[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]
23. An ordinary reading of the above provision of law would candidly indicate that four essential ingredients are required to be fulfilled to constitute the offence of dowry death and those are as follows:
(i) Death of a woman must be either by bum or bodily injury or otherwise than under normal circumstances.
(ii) It should be within a period of seven years of marriage.
(iii) It should also be shown that soon before the death she was subjected to cruelty or harassment by the husband or relative of the husband.
(iv) Such harassment or cruelty should pertain to demand of dowry.
24. Keeping the above requirement of law in mind, now let us analyse the evidence of P.W. 1 with regard to involvement of those essential ingredients so referred to above. There is no second opinion that first two ingedients have been already occurred in the instant case i.e., the death was not a normal one being caused by burn injuries and secondly the incident happened within a period of seven years of marriage and those are being admitted facts. Now it is to be examined as to whether other two ingredients have been satisfied or not. As already referred to above, from the evidence of P.W. 1, the father, it clearly appears that the deceased complained about the physical assault on her person by the husband for which she had to go back to her father's residence though later on she was sent back. Again for the second time she came to her father's house due to excessive beating by her husband and on her second return the father, P.W. 1, saw the mark of injuries on her person and this time she categorically mentioned that her husband asked her for gold ornaments, the demand which could not be conceded by the father. Thereafter again she was sent to her matrimonial house and after one month later the accused's elder brother informed the father, P.W .1, that her daughter burnt to death in fire. This testimony would go to indicate that soon before the death 'the deceased was subjected to cruelty or torture' which forced her to leave the matrimonial house and rushed to her parents house. It has also come on evidence of P.W. 1 that there was a demand of gold ornaments.
25. In the background of said factual situation we have no hesitation to hold that both the ingredients as mentioned above have been satisfied to constitute the offence of dowry death as prescribed under Section 304-B IPC.
26. Although Mr. Bhattacharyya, learned Counsel appearing for the appellant has tried his best to point out certain contradictions as regards the statements made by P.W. 1, the father, before the police but such contradictions had not been proved by the I.O., P.W.6.
27. In so far as Section 304 B is concerned, the same has been adequately and properly dealt by the Apex Court in a recent decision reported in (Kunhiabdulla and Anr. v. State of Kerala) and in paragraph 11 the Supreme Court ruled as under:
11. A conjoint reading of Section 113-B of the Evidence Act and Section 304-B, I.P.C. shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the 'death occurring otherwise than in normal circumstances.' The expression 'soon before' is very relevant where Section 113-B of the Evidence Act and Section 304-B, IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. 'Soon before' is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute 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 113-B of the Evidence Act. The expression 'soon before her death' used in the substantive Section 304-B, I.P.C. and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression 'soon before' is not defined. A reference to expression 'soon before' used in Section 114. Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods 'soon after the theft', is either the thief, or has received the goods knowing them to be stolen, unless he can account for its possession. The determination of the period which can come within the term 'soon before' is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression 'soon before' would normally imply that the interval should not be much between the concerned cruelty 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 concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.
28. Be it mentioned herein that in dealing with Section 304 IPC the Apex Court, as noticed above also dealt with Section 113-B of Indian Evidence Act, 1872 which has also been incorporated by virtue of amendment of the Act 43 of 1986 making effective from 19.11.1986. The provision of Section 113B may be read as follows:
113-B 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.
29. Having regard to the legal position as indicated above supported by the judicial authorities so cited above as well as upon hearing the learned Counsel for the parties, we are of the firm opinion that the prosecution has proved the case successfully against the appellant beyond all reasonable doubt and accordingly we have no hesitation to uphold the conviction of the appellant under the aforesaid section.
30. Now question is as regards the inflicting the sentence upon the appellant who has been sentenced by the trial court to suffer life imprisonment under Section 304-B IPC.
31. At this stage, Mr. Bhattacharyya, learned Counsel for the appellant has submitted that since the appellant was an young man of 25 years at the time of commission of offence and he was also the only earning member of the family and there being no other male person in his family to look after the family members and also considering that the incident occurred in the year 1998 i.e., on 11.9.98, he may be shown some leniency with regard to sentence.
32. On the question of sentence we have also heard Mrs. A. Begum, learned PP, Assam.
33. Having considered the submission of the learned Counsel for the parties and also taking into consideration the mitigating circumstances noted above, we are of the considered view that the ends of justice would be satisfied if the accused is sentenced to custodial detention of 10 years with a fine of Rs. 5,000/- in default to go further R.I. for two months. We order accordingly.
In the result, this appeal stands partly allowed with the modification of the sentence to the extent as indicated above.
LCRs be sent down forthwith.