Dowry Death - No Torture Established by Prosecution no Conviction

CALCUTTA HIGH COURT

JUSTICE Siddhartha Chattopadhyay

Nabin Chandra Giri & Ors. Vs. State Of West Bengal On 27 November 2017

Law Point:
Indian Penal Code, 1860 — Sections 304B, 498A — Dowry Death — Cruelty — Circumstantial Evidence — Benefit of doubt — No convincing evidence that deceased subjected to torture soon before her death on demand of dowry — Post-mortem report shows at the time of examination of corpse it is totally decomposed — PW failed to establish entire chain of circumstances — There are many missing links — Prosecution could not establish case beyond all reasonable doubts.

JUDGEMENT

The appellants called in question the correctness of the judgment and order of conviction dated 30.3.2015 and 31.3.2015 passed by the Additional Sessions Judge, 2nd Court, Contai, Purba Medinipur in connection with Sessions Trial No. 4/September/2008.

2. According to the appellant, the learned Trial Court failed to construe the provision of Section 498A of I.P.C and Section 304B of I.P.C. According to the appellants, learned Trial Court totally under a mis-conception of law has passed the judgment. So they have prayed for setting aside the said judgment and order of conviction.

3. The learned Public Prosecutor appearing on behalf of the State contended that the learned Trial Court has made a threadbare discussion mentioning the reasons, which prompted him to convict the appellants and so it does not call for any interference.

4. Shorn of unnecessary details, the prosecution case in gist is as follows:

The marriage of the victim took place in the month of Ashar 1411 BS and after that apple of discord came into surface over dowry demand. Steps were taken by the relation of the victim for an amicable solution but that proved abortive. On the fateful day, the de facto complainant came to know at or about 8:30 am. that the victim died by drowning at the time of bathing in the pond. Instantly, they rushed to the spot and the persons present there opined that it was an unnatural death and it was a murder. Ventilating their such grievances, the de facto complainant lodged the F.I.R. and set the law into motion.

5. The defence case as it appears to me from the trend of cross-examination and examination of the accused under Section 313 of Cr.P.C. is their innocence and that they have been falsely implicated.

6. However, soon after the registration of the offence, investigating agency came into operation. In course of investigation, the Investigating Officer has collected inquest report under Sections 174 of Cr.P.C. and 176 of Cr.P.C., recorded the statement of the witnesses under Section 161 of Cr.P.C. collected post-mortem report and F.S.L. report and thereafter has submitted charge-sheet under Sections 498A/304B of I.P.C.

7. Pursuant to the charge-sheet submitted by the Investigating Officer, the learned Trial Court on perusal of the materials on record had framed the charges under the aforesaid sections.

8. There being no eye-witness, the prosecution case rests on circumstantial evidence. Law is well-settled that in order to prove any offence of such nature all the links of the chain of circumstances has to be established beyond all reasonable doubts and disputes. Keeping in mind the said maxim this Court wants to scrutinise the evidence and to spill the beans.

9. P.W. 1, in his evidence has stated that the marriage took place on 14.7.2004. After one month the accused persons demanded dowry and since that was not fulfilled, they began to put torture upon the victim. They also abetted her to commit suicide. After coming to know about the alleged demand of dowry the parents of the victim went to the house of the appellant to settle the dispute but all their efforts ended in smoke. According to the P.W. 1, who happens to be the uncle of the victim, stated that the victim lastly met him on 1.5.2005 and on 6.5.2005 she died. After coming to the spot he got smell of poison from the dead body. He suspected that the victim was murdered and possibly the accused threw the dead body into the pond or the victim committed suicide by taking poison. In his evidence he candidly admitted that there is no bathing Ghat in the said pond. He also candidly admitted that the said pond was used for bathing as well as washing utensils. From his such evidence it is crystal clear that the said pond was being used by the victim and her matrimonial inmates for bathing as well as washing of utensils. He has also mentioned that there is sloping from the bank of the pond. In course of cross-examination, he had mentioned that it was a negotiated marriage and the demands put by both sides were reduced to writing and one copy of the same was retained by both sides. The prosecution during evidence could not produce the demand list nor any endeavour has been made by the Investigating Officer to get it collected. When admittedly the copy is retained by the victim’s family the same ought to have been produced before the Trial Court. On 1.5.2005 the victim came to her father’s house in the afternoon and in the evening he came to know from his niece that the family inmates of her matrimonial home sent her to fetch money. On the next day his uncle Madan Giri brought the victim in the afternoon to her matrimonial home and kept her there. In course of cross-examination he told that last salishi meeting was held on 2nd May, 2005 but that resolution was not reduced to writing and he did not inform the police regarding the demand of alleged dowry, physical and mental torture.

10. P.W. 2 is an uncle-in-law of the de facto complainant. He has also stated that the victim used to reside in her matrimonial home and she was subjected to physical and mental torture. He came to know about the alleged torture from the victim herself. After coming to know about the same he went to the house of the accused and tried to convince them. But such type of torture continued even after such settlement. In his evidence he has stated that victim occasionally visited their house and lastly on 1.5.2005. But he never stated that on the next day i.e. 2.5.2005 any salishi took place. Therefore, there is variation in the testimony of P.W. 1 and P.W. 2 so far as an alleged salishi dated 2.5.2005 is concerned. In course of cross-examination it transpires that his house is at distance of 9 kilometres from the police station but the police went to their house after 15 to 20 days from the date of incident. In his cross-examination he stated that he lastly visited the house of the victim on 1.5.2005, and at that time nobody was with him.

11. P.W. 3, has tried to support the prosecution case. He found blood oozing out from the nostrils and two sides of mouth. He also noticed one blackish mark in the left side of her forehead. In course of cross-examination he admitted that he had not stated to the Investigating Officer that he met the victim lastly on 1.5.2005.

12. P.W. 4, also supported the prosecution case and tried to improve the same by stating that the victim was frequently abetted to commit suicide which has not been established from the evidence of others. Even they have not stated it specifically when such abetment took place. In his cross-examination he has stated that after reaching to the spot he stayed there till dispatch of the body. The incident took place on 6.5.2005 and post mortem report speaks that the body was dispatched and received at the morgue on 8.5.2005 i.e. long after about 48 hours. No dead body Challan has been exhibited in this case. The prosecution could not explain as to where the dead body was kept in between after inquest and arrival of the body at the dead house. Evidence of P.W. 5, P.W. 6 not much relevant because they deposed regarding the rituals of the marriage in which they have played some role. P.W. 7, is the Deputy Magistrate who has conducted inquest under Section 176 of Cr.P.C. Evidence of P.W. 8 is the replicated version of P.W. 1, but his evidence in cross-examination does not inspire confidence. In his evidence he stated that the victim was going to her father’s house on 1.5.2005 by running and then he came to know it from her at or about 4.00 p.m. It is nobody’s case that the victim disclosed to him about the torture. He is a chance witness. The P.W. 9, in his examination-in-chief tried to improve the case by saying that the accused used to abet the victim to commit suicide. In his cross-examination he candidly admitted that it is not possible on her behalf to say when the victim visited her father’s house last. In course of cross-examination, he has also made in embellishment that the victim told him that the accused appellant put pressure upon her to bring Rs. 20,000 in default she could die by drowning or by hanging herself. P.W. 12, has conducted post-mortem report and he found marks of nail scratch in throat of the deceased and that may have been caused by the assailants. P.W. 13 has just submitted the charge-sheet. The P.W. 14 has proved the endorsement in the written complaint and he is the Investigating Officer also. According to him, the incident took place at or about 8.30 a.m. and the F.I.R. was lodged at 5.05 hours. Distance from the police station to the place of occurrence is about 8 kilometres and there is no justification as to why the F.I.R. was lodged long after 8 hours. In his cross-examination he admitted that P.W. 2 did not tell him that he came to know from the victim that the appellant demanded additional dowry of 20,000 and that she was not provided with food and cloth and she was abetted to commit suicide. Practically, the Investigating Officer categorically stated that the evidence led by the P.W. 2 before the Court were not stated to him. He also stated that relevant parts i.e. important aspects of this case were not stated to him by P.W. 3, P.W. 4, P.W. 8 and P.W.9. Therefore, on perusal of their evidence it seemed to me they are not creditworthy and there is no substantive materials for which the accused appellant could be brought to book.

13. To constitute an offence under Section 304B of I.P.C. the following ingredients have to be established.

(a)

The death took place within seven years of marriage.

(b)

The death must be otherwise in normal circumstances.

(c)

Soon before her death she was subjected to torture on the demand of dowry.

The prosecution has been able to prove the ingredients of (a) and (b) as mentioned above.

14. But there is no convincing evidence that she was subjected to torture soon before her death on the demand of dowry. The victim went back to matrimonial home on 1.5.2005. There is no evidence that she was tortured on or after 1.5.2005 and that too on the ground of dowry. The prosecution failed to show any mitigating circumstances or nexus which prompted the victim to commit suicide and at the same time there is no evidence as to who had administered poison on her and when.

15. From the Viscera report it appears that a kind of insecticides was found in her stomach. In our rural Bengal insecticides and pesticides are very much available in the house of the agriculturists. At the risk of repetition, I want to say that where the dead body was kept in between 6.5.2005 to 8.5.2005 is a mystery. The post-mortem report goes to show that at the time of examination of the corpse it is totally de-composed. If the body is totally de-composed how he could notice blackish spot and nail scratch mark in the neck. Prosecution witness failed to establish entire chain of the circumstances and since there are many missing links, this Court is of the view that the prosecution could not establish the case beyond all reasonable doubts and disputes.

16. Death is always an unfortunate incident. In spite of that when there is no clinching evidence, a Court of Law has to give some relief to the accused under the canopy of “benefit of doubt”. The accused/appellants be set at liberty at once. The accused/appellant Kabita Giri who is on bail be discharged from her bail bond. Accordingly, the criminal appeal is allowed and the judgment of the Trial Court is hereby set aside.

17. Let a copy of this order and LCR be sent to the learned Court below at once for information and taking necessary action.

18. Urgent certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.

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