Ranjan Gogoi, J.
1. This appeal is directed against the judgment and order dated 28.8.1998 passed by the learned Sessions Judge, Kamrup, Guwahati in Sessions Case No. 96(K) of 1995, convicting the accused-appellant of the offence under Section 304B of the Indian Penal Code and sentencing him to undergo Rigorous Imprisonment for 14 (fourteen) years. The learned Sessions Judge, however, acquitted the accused of the charge under Section 302 of the Indian Penal Code.
2. The prosecution case, in short, is that on 14.2.1995 at about 5 P.M., Dispur Police Station received a telephonic message from one Dr. Kalpana Sarma (P.W.1) to the effect that one woman had committed suicide by hanging. On the basis of the said information, General Diary Entry No. 833 was registered in the said police station and Shri
Narendra Nath Medhi, Sub-Inspector of Police proceeded to the place of occurrence and found the deceased Dr. Anjuma Ara alias Munni tying dead on the bed. Subsequently, the father of the deceased Shafi Ahmed (P.W. 7) who was then serving as Sub-Divisional Officer, Telephones at Magaldoi submitted a written information (Ext. I) stating that his daughter Anjuma Ara had committed suicide . On receipt of the said information in writing, the police made arrangements for holding post-mortem examination on the dead body on the next day and an Unnatural Death Case No. 9/95 was registered in respect of the occurrence. After the post mortem examination, the dead body was taken to Gopalganj in Bihar for the purpose of burial.
3. It is the further case of the prosecution that on coming back from Gopalganj, Shafi Ahmed, father of the deceased, lodged another written complaint (Ext.2) before the Officer-in-Charge of Dispur Police Station on 22.2.1995 alleging, inter alia, that the deceased Anjuma Ara was murdered by her husband, the accused, on 14.2.1995 for non-fulfilment of demands for dowry made by the accused. Thereafter, the police registered a case namely, Dispur Police Station Case No. 157/95 under Section 302/498A of the Indian Penal Code. On completion of investigation, the police submitted charge sheet and sent the accused for trial. The case being exclusively triable by the Court of Sessions, the same was committed for trial and disposal to the learned Sessions Judge, Kamrup at Guwahati.
4. In the Court of Sessions at Guwahati, two separate charges were framed against the accused - one under section 302 of the Indian Penal Code and the second, alternatively, under Section 304B of the Indian Penal Code. The accused having pleaded not guilty, the trial commenced and in the course thereof, as may as 12(twelve) withnesses were examined by the prosecution. One witness was examined on behalf of the defence. Both sides exhibited a large number of documents in support of their respective cases. At the conclusion of the trial, the learned Sessions Judge by the impugned judgment and order while acquitting the accused of the charge under Section 302 of the Indian Penal Code has found the accused guilty of the offence under Section 304B of the Indian Penal Code and accordingly, sentenced the accused to suffer Rigorous Imprisonment for 14 (fourteen) years. Hence the appeal.
5. The accused-appellant having been acquitted by the learned trial Court of the charge under Section 302 of the Indian Penal Code and no appeal having been filed against the said acquittal, in the instant appeal, we are only concerned with the correctness of the conviction recorded against the accused-appellant under
Section 304B of the Indian Penal Code and the sentence awarded.
6. It may be apposite to reproduce herein Section 304B of the Indian Penal Code :-
'304B. (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 purposes of this section, 'dowry' shall have the same meaning as in S. 2 of the Dowry Prohibition Act, 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.'
Section 304B was inserted in the Indian Penal Code by the Dowry Prohibition (Amendment) Act, 1986. The aforesaid Section 304B of the Indian Penal Code lays down that 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 marriage and it is shown that soon before her death, she was subjected to cruelty or harassment either 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. As per the Explanation to Section 304B of the Indian Penal Code, the word 'dowry' has been given the same meaning as in Section 2 of the Dowry Prohibition Act, 1961. Section 2 of the Dowry Prohibition Act, 1961 defines 'dowry' in the following terms :-
'2. Defination 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 parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at before or any time after the marriage in connection with the marriage of the said parties, but does not include dowry or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.'
7. A reading of Section 304B of the Indian Penal Code would go to show that to attract the particular section, the following preconditions will have to be satisfied -
(1) The death of a woman should be caused by burns or bodily injury or should have occurred 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.
(4) Such cruelty or harassment should be for or in connection with demand for dowry.
Section 304B of the Indian Penal Code does not define 'cruetly'. However, as held by the Apex Court in the case of Shanti v. State of Haryana reported in AIR 1991 SC 1226, the meaning of cruelty or harassment as contemplated under Section 304B of the Indian Penal Code would have the same meaning as appearing in the Explanation to Section 498A of the Indian Penal Code which is extracted hereinbelow :
'498A. 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 purpose 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.'
8. In view of the objective sought to be achieved by the insertion of Section 304 of the Indian Penal Code, the said Section itself permits a presumption of dowry death to be raised against the husband or any relative of the husband upon existence of the pre-conditions necessary to bring the said section into operation. The raising of such a legal provision has also been made permissible under the provisions of the Indian Evidence Act by insertion of Section 113B to the said Act. Section 113B has also been introduced in the Indian Evidence Act, 1872 by the Dowry Prohibition (Amendment) Act, 1985. The said newly inserted Section 113B of the Evidence Act which raises a presumption of dowry death is in the following terms :-
'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.'
Section 113B of the Evidence Act raises a presumption of dowry death if it is shown that soon before her death, such woman was subjected to cruelty or harassment for or in connection with any demand for dowry. In other words, once the ingredients necessary to attract Section 304B of the Indian Penal Code are present the presumption permitted to be drawn by Section 113B of the Evidence Act automatically come into force and will be acted by the Court subject to, of course, any rebuttal evidence that may be adduced by the defence. A conjoint reading of provisions of Section 304B of the Indian Penal Code and Section 113B of the Indian Evidence Act would go to show that the scheme introduced to combat the evil of dowry death by the amendment introduced by the Dowry Prohibition (Amendment) Act, 1986, is that whenever there is an unnatural death of a woman within seven years of her marriage and there is a proof of cruelty or harassment of the woman by her husband or any relative of her husband for or in connection with any demand for dowry, a presumption regarding culpability of the husband or any such relative is raised by operation of law. The expression 'unnatural death' must be understood in the simplest of meanings that the expression conveys i.e. any death which is not natural or a death which has occurred in the circumstances other than natural. To attract Section 304B of the Indian Penal Code, it would not be necessary to prove that any particular act or role of the accused was responsible for the death of the woman if the facts otherwise warrant the raising of the statutory presumption. Whether the death is homicidal or suicidal is also not a relevant question for determination of the culpability of the accused under Section 304B of the Indian Penal Code. Questions relating to specific acts of the accused would only be relevant in a case whether the presumption raised by operation of law is successfully rebutted by the defence. Only in such cases would the Court be required to undertake the exercise of ascertaining the specific acts of the accused and the extent to which such acts had been responsible for causing the death in question.
9. In the light of the above discussion, we may now proceed to examine the prosecution evidence for the purpose of determination of the correctness of the impugned conviction and sentence recorded by the learned trial Court
10. P.W. 1 Dr. Kalpana Sarma is a neighbour who knew the deceased. Accordingly to her, at about 4.30 P.M. of the day of occurrence namely, on 14.2.1995, another lady came to her residence and requested her to examine the deceased and to ascertain whether she was dead. Accordingly, this witness went to the house of the deceased and found her lying on the bed and on examination, she declared Dr. Anjuma Ara to be dead. Thereafter as the death appeared to be an unnatural one, she telephoned Dispur Police Station. P.W.2 Kampa Devi in another neighbour of the deceased. P.W.2 has deposed that on the day of occurrence, she had seen the deceased crying on the roof of her house. At about 4 P.M., she visited the house of the deceased and saw the accused in the drawing room reading a newspaper. She has deposed that she inquired from P.W. 3 Bakkar Ali about the deceased and was informed that she was in the bathroom. A little later, P.W. 3 came and informed her that Anjuma Ara was dead. This witness has deposed that she saw the deceased's husband namely, the accused bringing the deceased from bathroom and putting her on the bed. This witness has also deposed that the accused tried to take the deceased to the hospital but brought her back to the house when people told him that she was dead. This witness has also deposed that she saw marks of chunni on her neck and that she saw a chunni in the bathroom. In cross-examination, this witness has stated that she did not ask the deceased the reason as to why she was crying.
This witness has further deposed that after marriage she saw Munni and her husband having love and affection for each other but she was not sure as to what was in their minds.
11. P.W. 3 Bakkar Ali had been working in the house of the deceased since March, 1994 as a domestic servant. P.W.3 has deposed that soon after Magh Bihu of 1995, the accused came from Delhi and stayed with the deceased in the house owned by the deceased's father Shaft Ahmed, P.W. 7. According to this witness, for the first few days things went well but after 5/6 days of the accused's arrival, the couple was having altercations and at times, they did not take their meals. Till 12.2.1995, the couple remained in that way though at times they appeared to be on good terms with each other. This witness has deposed that prior to the day of occurrence, the deceased had not been taking her meals.
According to this witness, on the day of occurrence namely, 14.2.1995, Sakil Parvez (P.W.4), younger brother of the deceased went to school at about 8 A.M. and at about 8.30 A.M., the other brother Samim Parvez (P.W.10) went to the medical college.
Thereafter, the accused and the deceased were alone in their room which was closed till 12 noon. Around that time, the deceased came out of the room went upstairs and thereafter went to her room. This witness, has stated that soon thereafter he went to the room of the deceased and saw her sleeping on the bed. The accused was sitting on the bed reading a magazine. On being offered snacks, he accepted the same. The deceased was still sleeping. At about 2.20 P.M., he saw the accused sitting in the drawing room and reading a newspaper and on being asked, the accused told him that the deceased was in the bathroom. Till about 3 P.M. the accused was reading the newspaper and on inquiry being made, the accused told this witness that the deceased was still in the bathroom. When P.W. 4 Sakil came back from school, this witness told him that the deceased has been in the bathroom for a long time whereupon Sakil knocked on the door of the bathroom and called the deceased by name but without any response. Growing suspicious he went to the backside and on climbing a pipe, this witness peeped through a gap in the wall and could see the deceased in a sitting position with head stooping down. She appeared to be dead. This was immediately reported to P.W. 4 Sakil. By that time this witness came down and reached the bed room, he saw Munni lying on bed. The accused was in the room standing. This witness has stated that he saw black marks on forehead, nose and ear and also saw marks like bite marks on the forearms of the deceased. In cross examination, this witness has stated that though he was examined by police on the day of occurrence itself, he did not report to the police about the injuries he saw on the dead body of the deceased. He also did not report about the injuries to P.W. 7, father of the deceased. This witness has categorically stated that he told the father of the deceased about the injuries only on their return from Bihar after the burial. This witness, in cross-examination, has stated that on 15.2.1995 at about 4 P.M. he along with the father of the deceased (P.W.7) and three brothers of the deceased as well as the accused left for Bihar in an ambulance. In Bihar when the deceased's mother, P.W. 9, asked him about the incident he did not report to her about the injury marks on the body of the deceased.
12. P.W. Sakil Parvez is a brother of the deceased. According to this witness, on the day of occurrence at about 8.A.M., he left for school and arrived back at about 3.50 P.M. Immediately, he asked P.W.3 Bakkar All regarding the whareabouts of the deceased and he was informed by P.W.3 that the deceased was in the bathroom for a very long time. At that time, the accused was reading a newspaper in the drawing room. According to this witness, he
thereafter went upstairs and after having a wash he came down and inquired as to whether the deceased had come out of the bathroom. As there was no response from the bathroom in spite of knocking on the door, he asked P.W.3 to go to the backside and find out. According to this witness, P.W.3 went as directed and told him that the deceased was laying dead. According to this witness, immediately on coming to know of the death of his sister, he and P.W.3 informed the accused whereafter the accused ran to the bathroom and brought her out.
13. P.W.5 Jahida Khatun is a relation of the deceased. According to this witness, she went to the house of P.W.7 at about 4 P.M. on the day previous to the occurrence. When she reached the house she saw the deceased sitting and crying on the dinning table. On being asked about the reasons, the deceased, according to this witness, informed her that the accused was quarrelling with her and wanted a Maruti Car to be transferred in his name and money to buy a flat. On the day of occurrence at about 7.30 P.M. on coming to know of the incident, this witness went to the house of P.W.7 again. This witness has deposed that she noticed nail marks on the face of the deceased and bite marks on both wrists and injury marks on the waist. According to this witness, she also noticed a hanging mark on the front side of the neck. In cross-examination, this witness has stated that though she reported about the injuries she saw on the dead body to P.W. 7 after his return from Bihar after the burial, she had told about the injuries, to amongst others, P.W. 4 Samin Parvez on the very night of the occurrence. This witness has also deposed that on the previous day when she met the deceased she did not find injury marks on her body.
14. P.W.6 Md. Kasem was known to both the families as he was related to both of them. At the instance of this witness, the marriage between the accused and the deceased was finalised. At the time of negotiations, on being specifically asked, the father of the accused stated that they had no demand for dowry. This witness, however, deposed that after 2 1/2 months of marriage when he went to Gopalganj in Bihar, the elder brother of the accused had told him to ask P.W.7 to give one Maruti Car and a Flat in Delhi, which demand was duly communicated to P.W.7.
15. P.W.7 is the father of the deceased. According to this witness, the marriage between the accused and the deceased took place on 31.5.1994 at Gopalganj at Bihar and at that time, there was no demand for dowry. However, after two days of the marriage, Anjum Parvez (P.W.11), the elder brother of the deceased, reported to him
that when he had gone to the house of the accused, there was a demand from the accused for a Maruti Car and a Flat with a threat that if said demand is not met, adverse consequence will be followed. This witness has deposed that sometime in November, his wife P.W.9 reported to him that the relationship between the deceased and the accused was not good and they were often quarrelling.
This witness has deposed that he returned from Gopalganj in Bihar to Guwahati on 2.1.1995 and on his return, he went to Mangaldoi on 17.1.1995. He was at his Guwahati residence when the accused arrived from Delhi. On the next day, he went to Mangaldoi and came back to Guwahati on 6.2.1995. On that day, P.W.3 Bakkar Ali told him that the accused and the deceased were often quarrelling and were not having meals and were keeping themselves locked up in their rooms all throughout the day. At the request of this witness, both the accused and the deceased came and had their meal together on the dining table. This witness has deposed that he noticed that his daughter was in a crying mood. After dinner when the accused left for his room, his daughter remained at the table and on being asked, she told this witness that the accused wanted a Maruti Car and also money for their Flat at Delhi and further that when she had told the accused that her father may not be able to arrange the same, the accused reported that it was a matter for the father to sort out. This witness has deposed that the accused was scheduled to go to Delhi on 7.2.1995. But as the train was cancelled he could not go and his daughter requested him to send the accused by air, if money could be arranged. As he did not have money, this witness arranged another ticket in a different train on 7.2.1995 but the accused did not go by train and on being asked by a nephew, the accused is reported to have stated that he would go to Delhi by air. This witness has also deposed that on 13.2.1995 at about 7 AM., he talked to the father of the accused in Bihar over telephone regarding the place where the deceased would completing her Housemanship. Thereafter, he telephoned the accused in Guwahati who informed him that the deceased would be completing her Housemanship at Guwahati. This witness has also deposed that at that time, the deceased took over the phone and told this witness that she would do the Hosuemenship in Delhi by staying in a hostel and that she would not stay in the house of the accused.
This witness has deposed that on 14.2.1995, he was telephonically informed about the incident at about 8.30 P.M. and reached Guwahati at about 11.30P.M. Seeing the dead body of the deceased, he lost his senses and throughout the night, he was in a disturbed condition. We wrote the ejahar and gave it to the police in the evening of the day of occurrence itself after his arrival from
Mangaldoi. This witness has also deposed that in the next morning, he discussed with P.W.3 and P.W.4 and came to know about the injuries on the body of his daughter. This witness has deposed that at that time, he had suspicion that his daughter did not die of suicide and that it was a case of murder. This witness has deposed that the accused accompanied him to Bihar and was present at the time of burial. On his return from Bihar, this witness lodged another ejahar on 20.2.1995 but the same was not accepted. However, on 22.2.1995, the said eajahar, Ext. 2 was accepted. In cross-examination, this witness has stated that when his son Anjum Parvez reported to him about the demand for dowry he did not report the said fact to the father of the accused. Neither he talked to the accused about the demands.
16. P.W.8 Dr. Pratap Chandra Sarma conducted the post-mortem examination on the deadbody of Dr. Anjum Ara and found the following injuries :-
'Injuries
(1) Abrasion 5cm x 3cm size present at 2 cm above the tip of nose and 5cm left to midline.
(2) Abrasion 7 cm x 3cm size on front of lower end of left ear 1 cm below the tragus (projecting part of ear).
(3) Contention 7cm x 5 cm size present just below the lower jaw 4 cm right to midline.
(4) Contusion 1cm x 1 cm size present at 1.5 cm below the mid point of chin.
(5) Abrasion 1 cm x 5cm in size present at 1 cm below the lower jaw at 1.5 cm right to midline.
(6) Contusion 2cm x 1.5 cm in size present on lower border of lower jaw 4 cm left to midline.
(7) Bite mark oval in shape 3.5 cm x 2 cm size on back of left forearm 2 cm above wrist joint at middle.
(8) Bite mark oval in shape 4 cm x 3 cm in size on back of right forearm 1.5 cm above the wrist joint at middle.
(9) Abrasion 1.5 cm x .5 cm in size on the back of tight elbow joint on ulnar side,
(10) Contusion 2.5 cm x 1.5 cm size on outer aspect of right arm 8 cm above lateral epicundile (on elbow).
(11) Contusion 2 cm x 1.5 cm in size on front of left leg just above the patella... at middle.
(12) Contusion 4 cm x 1.5 cm size on inner side of right knee joint 1 cm below the patella.
(13) Scratch abrasion 3 cm x 2 cm size on the outer aspect abrasion left wrist-joint 1 cm above the styloid process of left radius.
(14) Bite marks oval in shape 2 cm x 3 cm in size on outer aspect of right forearm 2 cm on above the styloid process of radius of right hand. All the contusions were red in colour.
(15) One oblique and non-continuous ligature mark measuring 25 cm in length and 1.5 cm in breadth present high up on the neck. In front the ligature mark touches just above the thyroid pre-eminence at middle and on left side ligature mark, extends upto a point 1 cm below the lower end of left ear lebula and on the right side the upper end of ligature mark extends upto the midline 4 cm below the occiput. The upper border of ligature mark on right side shows grazed abrasions .5 to 1 cm wide directing upwards and backwards.'
This witness categorically stated in his opinion that the injuries were ante-mortem and homicidal in nature. By 'homicidal' he meant that the injuries were not self-inflicted or accidental.
17. P.W.9 is the mother of the deceased and she was in Gopalganj in Bihar on the day of occurrence. She has deposed as to the visits of the accused to Guwahati and also the visits of the accused and the deceased to Delhi. She has deposed that after her daughter's return from Delhi, she enquired from her about her marital life to which her daughter informed her that her husband, the accused, was becoming greedy for more dowry and wanted Maruti Car, cash and a house at Delhi. This witness has stated that she reported the aforesaid conversation with her daughter to her husband P.W. 7.
18. P.W.10 Samim Parvez is another brother of the deceased. This witness has stated that on the day of occurrence, he left for medical college where he was studying at about 8 A.M. and returned at about 12.30 Noon. On his return while leaving his scooter keys on the dining table he saw the door of the deceased's room open. After taking his bath at about 2 P.M. he had his lunch and thereafter rested himself. At about 3.30 P.M. or 4 P.M., P.W.3 came and informed him about the death of his sister. He rushed to the room and saw the accused carrying the deceased from the bathroom to the bed. He examined her and found no pulse and heart beat. This witness has deposed that he saw some injury marks on the face and hands. This witness has deposed that as a Houseman the deceased used to keep diaries namely, Mat. Ext. 3 and Mat. Ext. 4. Mat. Ext. 3 was torn by the accused whereafter his sister had procured a new diary. Mat. Ext. 4. This witness further deposed that on 30.1.1995 his sister had told that the accused had torn the diary as he did not want her to continue her studies. This witness has deposed that the relationship between the accused and the deceased was not good and that they used to have altercations and on one occasion the
accused had slapped the deceased. This witness has also deposed that the reason for the altercation was the demand for a Maruti Car and a house at Delhi which the accused had demanded from their father through the deceased. P.W. 11 Anjum Parvez is elder brother of the deceased. This witness has deposed that even before marriage the accused had told him that he expected a Maruti Car from them.
19. P.W. 12 Narendra Nath Medhi is the Investigating Officer of the Case. This witness has deposed that on receipt of the information from P.W.I Dr. Kalpana Sarma at about 5.30 P.M. on 14.2.1995 regarding the incident, he made the entry in the General Diary and on being entrusted with the investigation, he went to the place of occurrence. There he met the accused and on being pointed out by the accused, he went to the bed room and found the dead body of Dr. Anjuma Ara on the bed. On being asked, the accused brought a chunni from inside the wardrobe. He seized the chunni as well as one 'altrap' (used for bolting the room) vide seizure list Ext. 7. While he was at the place of occurrence, the father of the deceased arrived. The entire atmosphere was surcharged with emotion and at his request, the father of the deceased, P.W.7 gave one written report (Ext. 1). This witness took the accused and P.W.3 Bakkar Ali into custody as the situation was tense and hostile, This witness has deposed that P.W.7 Shafi Ahmed submitted another F.I.R. (Ext. 2) to the Officer-in-Charge of Dispur Police Station and after recording the statements of the first informant and his son, he went to Delhi and arrested the accused and brought him back to Guwahati. This witness has been extensively cross-examined by the defence with regard to certain lacuna either in the form of certain omissions or over-writings in some of the documents exhibited by the prosecution namely, Ext. I, the first F.I.R. dated 14.2.1995, Ext.4 the certified copy and Ext. 10, original of the inquest report, Ext.5 the dead body challan and Ext. F - the Forwarding Report.
20. A scrutiny of the evidence tendered by the prosecution witnesses in the case would seem to suggest the existence of the following facts and circumstances :-
(1) The families of the accused and the deceased were known to each other. Both families are from Gopalganj in Bihar.
(2) At the time of negotiation of marriage, there was no demand for dowry from the family members of the accused.
(3) After marriage there was demand for dowry in the form of a Maruti Car and a Flat in Delhi and such demands for dowry was made primarily by the accused.
(4) The relationship between the deceased and the accused as confided by the deceased to her parents was not good and bitterness
has come into the relationship because of the demands for dowry made by the accused.
(5) The accused came to Guwahati on 17.1.1995 and since then, though at times the couple appeared to be happy, they were frequently quarrelling with each other.
(6) There is some evidence of physical abuse of the deceased by the accused as deposed to by P.W. 10 Samim Parvez.
(7) There is evidence of the deceased crying on certain days preceding the day of occurrence. There is also evidence of the deceased not taking her meals regularly and in fact, skipping all her meals on the day of occurrence as well as on the day immediately prior to the day of occurrence. No attempt was made by the accused to persuade the deceased to take her meals.
(8) There is evidence of some amount of unnatural conduct on the part of the accused on the day of occurrence as he was found reading a newspaper in the drawing from for a considerably long time while the deceased was in the bath room. No enquiries were made by the accused as to why the deceased was spending so much time in the bath room.
21. Having narrated the core of the evidence tendered by the prosecution witnesses and the facts and circumstances appearing against the accused therefrom, we next proceed to examine as to whether and if so, to what extent the ingredients necessary to attract Section 304B of the Indian Penal Code are present in the instant case.
22. There is no dispute that the deceased Dr. Anjuma Ara died within seven years of her marriage to the accused. The next ingredient necessary to attract Section 304B of the Indian Penal Code is that the death must have occurred in other than the normal circumstances. The defence has examined Dr. Girish Medhi, retired Professor of Forensic Medicine in support of its case that the injuries suffered by the deceased were suicidal and not homicidal in nature. Mr. Bhattacharjee, learned senior counsel appearing for the appellant has very strenuously argued that the evidence of P.W.8 Dr. Pratap Chandra Sarma to the effect that the injuries sustained by the deceased were homicidal should not be accepted by us. Learned counsel has placed before the Court several works on Medical Jurisprudence in support of the plea made. Mr. Bhattacharjee by referring to the evidence of P.W.8 has argued that in the absence of more positive evidence, none of the injuries mentioned by P.W.8 in his evidence can be ascribed to the accused. While Mr. Bhattarcharjee may be correct on this score, the argument overlooks the fact that to attract Section 304B of the
Indian Penal Code, no particular injury is necessary to be ascribed to any particular act of the accused. Whether the injuries were homicidal or suicidal and whether there is any positive evidence to link any of the injuries to any particular act on the part of the accused, is totally irrelevant to sustain the change under Section 304B of the Indian Penal Code.
Mr. Bhattacharjee's argument that the death of Dr. Anjuma Ara was suicidal and not homicidal can be meaningfully understood only in the context of the further argument made by the learned counsel that in the instant case, there is no evidence that the accused had treated the deceased with cruelty on account of demand for dowry. The aforesaid argument, therefore, proceeds on the basis that the death of Dr. Anjuma Ara had occurred in other than normal circumstances, a fact which the evidence on record, even otherwise, conclusively proves.
23. The next ingredient necessary to bring home a charge under Section 304B of the Indian Penal Code is the proof of cruelty or harassment connection with any demand for dowry. Before we proceed to analyse the evidence on this aspect of the case, it must be borne in mind evidence of cruelty and harassment arising from demand for dowry can at times take very subtle forms and such evidence may not, in all cases, be very pronounced. It is the duty of the Court to look into the totality of the facts of any given case before being satisfied that the evidence warrants any particular conclusion. In the instant case, the status of the accused who was working as a Cargo Manager of the International Airport Authority at New Delhi and the deceased who was a young doctor has to be kept in mind. The evidence of cruelty and harassment and demand for dowry, by the very nature of things, is bound to come from persons who are closely related of from members of the immediate family of the victim. In so far as the present case is concerned, P.W.2 has deposed that on the day of occurrence she saw the deceased crying. P.W.3 has deposed that after the accused came to Guwahati on 17.1.1995 for the first few days, the relationship between the deceased and the accused was good but subsequently, they were having altercations and were not having their meals regularly. It is clear from the evidence of this witness that on the day of occurrence and even on the previous day, the deceased had not taken her meals which fact is duly corroborated by the evidence of P.W.8, the doctor, who conducted the post-mortem examination. P.W.5 has deposed that on the day previous to the day of occurrence when she visited the house of the deceased, she found the deceased crying and that on being asked, the deceased had reported to her about the demands
for dowry made by the accused. P.W.7, the father of the deceased, had deposed that on 6.2.1995 when he had come to Guwahati he was informed by P.W.3 about the altercations between the deceased and the accused and the fact that they were not having their meals. P.W.7 has also deposed that after dinner on that day, the deceased had confided in him about the demands for dowry made by the accused. This witness has also deposed as to the demands for dowry made by the accused to P. W. 11 Anjum Parvez within two days of the marriage. P.W.9, the mother of the deceased, has deposed about the information given by her daughter to the effect that the marital life of the deceased was not happy due to demands for dowry made by the accused. P.W. 10, another brother of the deceased, has deposed to the fact that the relationship between the two was not good and that they have been fighting with each other and further that on one occasion the accused had even slapped the deceased.
24. Mr, Bhattacharjee, learned senior counsel has vehemently argued that the prosecution evidence does not prove cruelty or harassment on the part of the accused and further that the evidence of the prosecution witnesses on the point of demands for dowry suffers from material contradictions and inconsistencies for which reason the said evidence should be disbelieved by us. Mr. Bhattacharjee submits that on the basis of the evidence on record, the legal presumption under Section 113B of the Evidence Act, cannot be raised to bring home the culpability of the accused. Mr. Bhattacharjee has submitted that P.W.2 and P.W.3 has clearly deposed that the relationship between the accused and the deceased appeared to be good and in any case, a little bickering and discord that has been testified to by the other witnesses are a common feature of married life. Mr. Bhattacharjee has also argued that on the point of dowry demand, the prosecution witnesses are at loggerheads and in view of the serious inconsistencies and contradictions appearing from the prosecution evidence on the said aspect of the case, the charge under Section 304B of the Indian Penal Code must fail. Mr. Bhattarcharjee has argued that while there is no unanimity in the evidence of prosecution witnesses as to whether the demands for dowry started before or after marriage, there is also a very strange feature appearing from the evidence of the prosecution witnesses, namely, the fact that P.W.7, the father of the deceased had not confronted either the accused or his father with regard to the demands for dowry said to have been made by the accused. Such conduct, Mr. Bhattacharjee argues, is unnatural and has the effect of casting serious doubts about the correctness of the prosecution case. Mr. Bhattacharjee has also argued that there are serious
contradictions in the evidence of the prosecution witnesses particularly, P.W.3 and P.W.7 on the point of the injuries on the body of the deceased and further that while P.W.4, P.W.7 and P.W. 10 have deposed that on the very next day itself i.e. 15.2.1995, they had a strong suspicion about the role of the accused in the death of Dr. Anjuma Ara, yet the conduct of the said persons in travelling together to Bihar for the burial as well as the act of sending the telegram to the accused (Seized vide seizure list, Ext. 12) to perform Fatihakul of the deceased at Guwahati on 24.2.1995 has the effect of casting serious doubts on the prosecution case.
Mr. Bhattacharjee, learned counsel for the appellant has further argued that in the instant case, the documents exhibited by the prosecution would go to show a great amount of tempering and over-writing which throws serious doubts as to the veracity of the prosecution case. In particular, Mr. Bhattacharjee has drawn the attention of the Court to Ext. 5, the dead body challan, Ext. 4, the certified copy of Inquest Report as compared to Ext. 10, the original thereof as well as Ext.5, the Forwarding Report. He has also referred to the over writings in Ext. A, the photocopy of the original F.I.R. submitted by P.W.7 on 14.2.1995 and the reluctance of the prosecution to produce before the Court the original of the said document the said document and the conduct of the prosecution in exhibiting the certified copy of the said documents as Ext. 1.
Mr. Bhattarcharjee has also vehemently attached the veracity of the 2nd F.I.R. submitted on 20.2.1995, Ext. 2 pointing out that the same is an afterthought which fact would be amply borne out by General Diary Entry No. 871 dated 15.2.1995 namely, Ext. G wherein contradistinction to the evidence tendered by P.W.7, he had reported to the police that the death of Dr. Anjuma Ara was a case of suicide and that he had no suspicion in the matter and further that he intended to take his son-in-law, the accused, to Bihar for burial.
25. We have considered the evidence tendered by the prosecution witnesses both oral and documentary, and the submissions of Mr. Bhattacharjee. In appreciating the evidence in a criminal case, the Court will not look for mathematical accuracy and exactitude. The evidence must be weighed by reference to normal human conduct. It is an universally accepted fact that different persons react differently in different situation and human reaction and conduct ought not to be judged from a single perspective. In our considered opinion, there is nothing unusual in the conduct of the father, P.W.7, in not confronting the accused or his father with the demands for dowry made by the accused. In judging the actions of the immediate relations of the
deceased immediately after the occurrence, due regard must be had to their mental state after the enormous tragedy that had befallen the family and the further fact that the accused was also an immediate member of the family. Filing of the subsequent F.I.R on 22.2.1995 (Ext. 2) does not in the facts of the instant case, in any way, cast any cloud on the veracity of the prosecution case. Judged from that perspective the conduct of the members of the family of the deceased appears to be acceptable to us. The overwriting in some of the documents exhibited may at best show some amount of uncalled for enthusiasm on the part of the prosecution but we are unable to take the view that such overwriting have any material effect on the core of the prosecution case under Section 304B of the Indian Penal Code. Rather, on an overall consideration of the evidence of the witnesses examined by the prosecution we are satisfied that there is sufficient material to come to the conclusion that on the days immediately preceding the death of Dr. Anjum Ara, she was treated with cruelty and harassment by the accused and such cruelly and harassment meted out to her was on account of demands for dowry made by the accused. In such circumstances, the statutory presumption under Section 113B of the Evidence Act operates against the accused and there being no evidence in rebuttal, the culpability of the accused on the basis of the statutory presumption is clearly brought home.
26. Mr. Bhattacharjee lastly contends that the trial of the accused stands vitiated inasmuch as the accused was prejudiced by the two alternative cases brought by the prosecution. Mr. Bhattacharjee further submits that in the examination of the accused under Section 313 of the Code of Criminal Procedure, the circumstances appearing against the accused in so far as the offence under Section 304B of the Indian Penal Code is concerned has not been put to the accused. We have perused the charge framed against the accused and the statement of the accused recorded under Section 313 of the Code of Criminal Procedure, 1973 and we do not find any infirmity in the conduct of the trial against the accused in so far as the offence under Section 304B of the Indian Penal Code is concerned. The accused was at all material times aware of the case against him and all relevant circumstances with regard to the charge under Section 304B of the Indian Penal Code was put to the accused in his examination under Section 313 of the Code of Criminal Procedure, 1973.
27. In view of the foregoing discussions, we do not find any infirmity in the conviction of the accused/appellant recorded under Section 304B of the Indian Penal Code and the sentence awarded by the learned trial Court. The appeal is accordingly, dismissed.