ASHIM KUMAR BANERJEE. J. - (1.) FACTS :- Santana Dutta of Mouza Ramaipur Police Station, Burdwan, District- Burdwan was married to Ashok Dutta alias Bikash Dutta of the same village on Jaistha 24, 1398 B.C. Santana and Bikash had love affairs. The family of Santana was initially not agreeing to the marriage proposal. However, on the insistence of Santana, they agreed. The marriage was solemnized according to Hindu Rites. Dowry amounting to rupees thirty thousand in cash and gold ornament weighing ten Bhories along with other gifts, were given in the marriage. The in-laws family consisted of Bisnupada Dutta, father in law being the Appellant no.1, Swapna Gupta, the sister in-law being the Appellant no.2, Bikash Dutta, the husband and mother in-law. During her stay at her matrimonial home, she was subjected to torture by Bikash, Swapna and Bisnupada. They used to misbehave with her. Just three days before the marriage an additional demand of rupees five thousand was made which the parents of Santana could not fulfil. The in-laws also did not like the gifts given by the parents of Santana. On that issue they used to torture her. The parents also could not give the steel almirah as per the demand. Bikash was a drunkard. He used to sell the ornaments for such purpose. The parents of Santana made a complaint to the local Panchayat. They also approached the in-laws and requested them to behave properly, but in vain. On 14th Aghran she came to her parental home on the occasion of 'Nabanna'. She was very much purturbed. She narrated her miseries in her parental home. Few days after, Santana died an unnatural death at her marital home on December 26, 1991. An empty bottle of poison was found near her dead body. She had injuries on her lip. Santana's paternal house and maternal home were within the distance of two minutes walking, even then the in-laws did not inform the parents about the unfortunate incident. One Siddeshwar Dey informed Burdwan Police Station over telephone. Police came to the spot and sent the dead body for Post Mortem Examination after holding necessary inquest. Biswajit Hazra,PW-1, the brother of Santana lodged a written complaint inter alia accusing the in-laws including the husband charging them for being responsible for the death of her sister. The Police carried out the investigation. The Police also arrested the accused being Bishnupada Dutta, Bikash Dutta as well as Swapna Gupta and charged them with the offence committed under Section 304B read with Section 498A of the Indian Penal Code. Post Mortem doctor kept his opinion reserved awaiting Chemical Analysis Report of the Viscera. The doctor however found injuries appearing on the dead body. All the three accused pleaded not guilty and opted to be tried.
(2.) EVIDENCE :- PW-1 (Biswajit Hazra) :- The witness was the unfortunate brother of the victim Santana. He supported his complaint. Santana was elder than him. In cross-examination, Biswajit stated that Bikash had no employment at the time of marriage. He was unable to produce any document in support his claim for payment of dowry. He also admitted having not mentioned in the FIR about the demand of dowry by the accused. He also admitted having not stated in the FIR that Santana had come to their house on the day of 'Nabanna'. He told these facts to the Police subsequently. Bikash was habitual drunkard. The witness initially did not agree to give marriage. He however stated that it was his impression that either Santana had committed suicide or she had been murdered by the inmates of her matrimonial home. He also stated that he had come to know that there had been miscarriage by Santana. He further stated that he had not found any mark of injury on the dead body. PW-2 (Sudhir Kumar Mondal) :- Being the resident of Ramaipur, Sudhir knew Santana. He was a school teacher and Panchayat Pradhan on the relevant date. Time to time, Biswajit and his mother made complaint about Bikash on the issue of discord between the couple. On the fateful day in the morning, the village Chowkidar informed him that Santana had expired after committing suicide. In crossexamination, the witness stated that he had informed the Burdwan Police Station by sending written information through the local Chowkidar. The witness was not aware of any miscarriage. PW-3 (Muktipada Mondal) :- The witness was also a villager belonging to the same village. He was a seizure witness. PW-4 (Haranbala Hazra) :- The witness was the mother of Santana. She also confirmed that the couple had love affairs before their marriage. Swapna used to torture Santana mentally. Santana was not given proper food or clothing. Bikash used to demand articles from her and assaulted Santana in inebriated condition. Santana died seven/eight months after marriage. The Police interrogated the witness after the death of Santana. The witness was also not happy on the love affair of the couple. However, Santana insisted for marriage. The witness was not happy because she knew that Bikash was not a good person. She also confirmed about Santana's miscarriage. During cross-examination, she confirmed about torture by Swapna. She also confirmed that there was no injury on her person. She however denied the suggestion that no torture was done. She asserted having informed the Panchayat about the torture contemporaneously. PW-5 (Bikash Mondal) :- Witness did not belong to the same village. He was staying at Sanpur,3 / 4 k.m. away from Ramaipur. He also confirmed that Ashok alias Bikash was addicted to wine and used to physically assault Santana from to time. Swapna also committed mental torture. Bisnupada used to pinch her on the matter of dowry articles. Bikash used to assault Santana in case he did not get money for his drink. The witness found the dead body of Santana on a cot in the second floor of her marital home. Police held the inquest. The witness signed the same. In cross-examination he disclosed that he was a graduate. He knew Bikash before his marriage with Santana when the talk of marriage was going on. He came to know about the love affairs. The witness was not happy as Bikash was not a good person. He also stated to the Police that Swapna used to torture Santana mentally. PW-6 (Samir Mondal) :- The witness was also a villager. He found Santana dead in the house of the accused. The witness heard from PW-1 that her sister was subjected to torture in her maternal home by her in-laws. PW-7 (Dharanidhar Dutta) :- The witness being another villager stated that he did not know how Santana had died. The witness was declared hostile. In cross-examination, he stated that Santana had love affairs with Bikash before marriage. Bisnupada and his son were employed in Police Administration. He was also a party to a masspetition relating to death of Santana. He was the President of the village committee. Neither Santana nor her relatives ever filed any complaint to the Village Committee. PW-8 (Mrittunjoy Dey) :- The witness was the brother in-law of Santana. Swapna lodged false complaint against Santana to her husband and instigated him to assault Santana. Bikash used to assault Santana when she could not give any money for drinks. On the fateful day, Bisnupada went to his house and requested him holding his feet to save him from the crisis. He also confirmed having sent a mass-petition by the villagers. The witness was also not happy with the marriage. However he ultimately agreed as Santana had no objection to the same. He also confirmed Bisnupada being a member of the Armed Police Force. He also stated to the Police that Bisnupada had requested him to save him from the crisis. PW-9 (Sidheswar Day) :- The witness was the elder brother of Mrittunjoy. He corroborated his brother Mrittunjoy. He also confirmed that Bisnupada had come to their place to surrender before Mrittunjoy. The witness informed the Police Station over telephone. He also stated to the Police that Santana had told him about her sorrow affairs. He however did not make any written complaint. He also told the Police that in-laws had been demanding money from Santana. PW-10 (Rabindra Nath Karmakar) :- The witness was the Reader in the Department of Forensic and State Medicine, Burdwan Medical College and Hospital. He performed the post mortem examination on the dead body of Santana. According to him, no external or internal injury could be detected. He however found deep blue fluid with mucus weighing about 150 grams with peculiar smell in the column of heart. He reserved his opinion awaiting receipt of the Chemical Examination Report. Taking into consideration the Post Mortem Report and the Chemical Analysis Report, he ultimately opined that the death was due to effect of quinalphos poisoning, ante mortem in nature. He proved the subsequent report of Dr. Saibal Gupta, whose signature he was acquainted with. PW-11 (Sunil Sarkhel) :- The witness being the Constable posted at Burdwan on the relevant date identified the dead body to the Autopsy Surgeon. PW-12 (Partha Sarathi Konar) :- The witness, being a co-villager, stated that he had written down the complaint as per instruction of Biswajit being PW-1. It was read over to Biswajit when he put his signature. PW-13 (P.C. Sarkar) :- The witness was the Sub-inspector of Police then posted at Burdwan. He received the telephonic message from Siddheswar Dey being PW-9 and recorded the G.D. Entry. PW-14 (Braja Gopal Roy) :-- The witness was also a Sub-inspector of Police posted at Burdwan Police Station on the relevant date. On receipt of the telephonic information, he rushed to the place of occurrence. He prepared the inquest, as also received the written complaint from Biswajit. He carried out the investigation and seized one Tin Box. He also examined some witnesses and recorded their statements. He arrested Bikash and Swapna on the spot. Bisnupada was absconding at that time. He recorded the statement of Sudhir Kr. Mondal being PW-2. According to him, Sudhir had not stated to him that he had talked to Biswajit and his mother on the affairs of the deceased. Similarly, he denied of any statement of Muktipada Mondal PW-3 made to him with regard to the information of Santana's death. He also denied that Muktipada had not stated to him about the strained relation between Santana and Bikash. He also denied the statements referred to hereinbefore being made by PW-4, 5, 6 and 7 to him as asserted by the respective witnesses at the time of trial. PW-15 (Gour Mukherjee) :- The witness was another Sub-inspector who took up the investigation at a later stage. He collected Chemical Examination Report as well as Post Mortem Report and subsequently submitted charge sheet. PW-16 (Saibal Gupta) :- The witness was the Professor and head of the Department Forensic and State Medicine, North Bengal Medical College and Hospital. He proved his final Post Mortem Report. According to him, the cause of death was due to the effect of quinalphos and organo phosphorus compound poison, ante mortem and suicidal in nature. The doctor also stated that in case this poison would get mixed with any drink and any person took it accidentally it might cause death and in such case it would be 'accidental'. Examination OF THE ACCUSED :- The incriminating evidence that came out during trial against the accused was categorically put to each of the accused. They however mechanically denied the charges, however refrained from giving any explanation how the death had caused to Santana in her marital home. Judgment OF THE ADDITIONAL SESSION JUDGE (2ND COURT), BURDWAN :- The learned Judge analyzed the evidence, so discussed above. The learned Judge discarded each and every contention of the defence by cogent reason. The learned Judge observed as quoted below :- 'Keeping the factum of death a secret with the inmates of the parental family of Santana upto 5 in the morning although the house of the latter is at 200 yards away, at a two minute walking distance and sending such information to P.W. 1 through a third person, establishes the inherent truth of the adage that an offender often betrays himself unconsciously. It is established fact that under the bed of the deceased the poison container was found. Had it been a case of accidental drinking of the poison mixed with some other drink the glass or the container by which the deceased might have taken that mixture would in all probability be found in the house, if not, in the same room. Another disconcerting fact is that the door of the bed-room was not found closed nor any door bolt or has bolt or khil was found broken. Both arms of the deceased were found placed in natural posture. Such circumstances exclude the possibility of accidental death.' From the paragraph quoted above, it would appear that the learned Judge excluded the possibility of accidental death. The learned Judge also considered the decisions cited at the Bar. He came to the following conclusion :- 'On an overall consideration of the evidence of the witness examined by the prosecution I am satisfied that there are sufficient materials to arrive at the conclusion that the death of Santana (the deceased) within 7 months of her marriage was an outcome of the individual as well as collective oppression and torture of the accused persons in connection with the demand of outstanding dowry. The accused persons brought an abrupt and unnatural end of the life of Santana (the deceased) within 7 months of her marriage to satisfy their lust for money and material. In such circumstances, the statutory presumption under Section 113B Evidence Act operates against the accd. Persons. There being no evidence in rebuttal and the accd. Persons having made blanket denial of the incriminating evidence placed before them under Section 313 Cr.P.C. the culpability of the accd. Persons on the basis of the statutory presumption is clearly brought home. The learned Judge ultimately held all the three accused guilty for the offence committed under Section 498A and 304B of the Indian Penal Code. They were acquitted from the charges brought against them under Section 306. All the three accused were sentenced for three years rigorous imprisonment coupled with a fine of rupees five thousand each and in default to suffer rigorous imprisonment for four years more by the offence committed under Section 498A. The learned Judge also held Bikash guilty of the offence committed under Section 304B and sentenced him for ten years rigorous imprisonment coupled with a fine of rupees two thousand and in default to suffer further rigorous imprisonment for two years. Bisnupada and Swapna were also convicted under Section 304B, however sentenced for a lesser punishment for seven years rigorous imprisonment coupled with a fine of rupees one thousand and in default to suffer further imprisonment for one year each. The learned Judge directed both the sentence to run concurrently.
(3.) APPEAL :- Bikash preferred appeal being CRA 259 of 2002 whereas Bisnupada and Swapna preferred a separate appeal being CRA 257 of 2002. Contention OF THE APPELLANTS :- Mr. Milon Mukherjee, learned counsel appearing for the appellants being ably assisted by Mr. Subhasish Dasgupta, learned advocate contended as follows: i) The case of torture on account of dowry was conspicuously missing in the written complaint. ii) No element of dowry could come out in evidence. iii) In absence of element of dowry neither the presumption under Section 113-A or 113-B would apply nor the provision under Section 304-B would have any application. Elaborating his argument, Mr. Mukherjee drew our attention to the evidence of the witnesses particularly PW-2, 6 and 7 being the neighbours and contended that independent witnesses did not specifically support the case of the prosecution. He also contended that the questions put to the accused were jumbled up and that would per se vitiate the trial. In support of his contentions, Mr. Mukherjee relied on five Apex Court decisions : i) 1984 Criminal Law Journal Page-1738 (Sharad Birdhichand Sarda 'VS- State of Maharashtra) 17 ii) All India Reporter 1997 Supreme Court Page-1873 (Sham Lal 'VS- State of Haryana) iii) 2007 Volume-III Supreme Court Cases (Criminal) Page-468 (Appasaheb and Another 'VS- State of Maharashtra) iv) 2008 Volume-II Calcutta Criminal Law Reporter (Supreme Court) Page-305 (Narayanamurthy 'VSState of Karnataka) v) All India Reporter 2009 Supreme Court Page-1454 (Tarsem Singh 'VS- State of Punjab);