w w w . L a w y e r S e r v i c e s . i n

Kaushik Das v/s State Of Tripura

    Criminal Appeal (J) No. 01 of 2006
    Decided On, 11 December 2008
    At, High Court of Gauhati
    For the Appellant: A.C. Bhowmik, D.C. Roy, Advocates. For the Respondent: A. Ghosh, Advocate.

Judgment Text
P.K. Musahary, J.

1. The claimed real life story is of love, akin only to what is called platonic love-a young man married a dark ugly young woman not for any material gain but for love and deep love only, against the wishes of his parents; never mind, he be driven out from his parental house and outcast by his family; prepared to live with his beloved most wife in a rented house happily.

2. But the prosecution story is otherwise. The accused, Kaushik Das married Haimanti Das some time in the year 2002. The informant Shanti Ranjan Das, father of Haimanti, on demand from the groom side, had to pay Rs. 1.00 lakh in cash with steel almirah, fridge, sofa, gas oven and other articles along with 8 bori of gold ornaments, etc. The accused-appellant and Haimanti lived together a happy nuptial life. After three months, she was tortured by her father-in-law, mother-in-law, brother-in-law and sister-in-law pressing her to bring more money for purchasing a Maruti vehicle. Haimanti informed her father. The informant paid some amount for purchasing a Maruti vehicle yet they did not stop torturing her. Later she was driven out from the matrimonial house with her husband. Then Haimanti began to live with her husband in a rented house at Santirbazar. His son-in-law Kaushik requested him to pay some amount to open a medicine shop. Accordingly, the informant paid Rs. 50,000 to the accused Kaushik. But after payment of the said amount also, the torture continued. Haimanti informed the informant about this fact of torture. On 4.11.2003, when the daughter of the informant, Haimanti was at the advanced stage of nine months pregnancy, accused Kaushik set fire on her. With burn injury, she was taken to Santirbazar hospital and then to Udaipur T.S. District Hospital. From Udaipur, she was referred to G.B. Hospital, Agartala. In the G.B. Hospital Haimanti gave birth to a dead male baby on 11.11.2003 and died on 12.11.2003. After her death, santi Ranjan Das (informant) submitted a written complaint.

3. On the basis of the written complaint, a crime, being Santirbazar Police Station Case No. 42/03 was registered under Sections 498A and 304B of IPC. Accordingly investigation started. The preliminary steps were taken by the S.I. Paresh Biswas and the investigation was finally conducted by the D.S.P., Belonia and after completion of investigation, D.S.P. Belonia submitted charge-sheet against six accused persons under Sections 498A and 304B of the Indian Penal Code.

4. A Sessions Case No. ST 27 (ST/B) of 2005 was registered and the case was endorsed to Additional Sessions Judge, West Tripura for trial and adjudication. On committal, the learned Trial Court framed charges against the accused-persons namely (1) Sri Kaushik Das; (2) Sri Chitta Ranjan Das; (3) Sri Dipak Das; (4) Smt. Sandhya Rani Das; (5) Kumari Sutapa Das and (6) Smt. Sucheta Das. The charges being read over and explained to the accused persons pleaded not guilty and claimed trial.

5. During trial, the prosecution examined, in all, 20 witnesses including the I.O. and medical officer. After the trial, the learned Trial Court passed judgment on 9.12.2005 convicting and sentencing accused-appellant only with imprisonment for life for commission of offence under Sections 498A and 304B, IPC. The other accused-persons were acquitted as the prosecution failed to bring home the charges against them. The accused-appellant, Kaushik Das has preferred this appeal against the said conviction and sentence.

6. We have heard Mr. A. C. Bhowmik assisted by Mr. D.C. Roy, learned Counsel for the accused-appellant and also heard Mr. A. Ghosh, learned Additional Public Prosecutor for the State of Tripura.

7. Mr. A. C. Bhowmik, learned Counsel for the appellant submitted that the accused-appellant loved and married the deceased Haimanti and took her to his parental house but his father and other family members were not ready to accept her and some time she was misbehaved by them. Appellant used to protest when his wife was being misbehaved by the family members, for which his father ousted him and his wife from his house. Not disheartened, he used to live with his wife in a rented house, separate from his parental house by starting a pharmacy at Santirbazar. The accused-appellant maintained a good relation with his wife and lived happily until the tragic incident took place in the night of 4.11.2003, while she was cooking in the kitchen and suddenly caught by fire and sustained burn injury.

8. Taking us through the evidence of prosecution witnesses, particularly, P.W.2, P.W.3 and P.W.4, Mr. Bhowmik submitted that there was a good relation between the accused-appellant and deceased wife. P.W.3, Manoranjan Banik is the owner of the house, in which the appellant with his wife, used to live as tenant for 3/4 months before the incident took place.

9. According to the evidence of this independent witness, hearing the cry in the rented hut of accused Kaushik, he came out and saw the wife of Kaushik standing in the courtyard with burn injury and he saw accused Kaushik was pouring water to extinguish the fire. He asked Banti, the wife of the accused-appellant, how the fire caught on her body but she did not tell him anything. The accused immediately shifted his wife in the vehicle of P.W.3, driven by P.W.2, Kamal Debnath to the local hospital along with another woman. Thereafter she was shifted to G.B. Hospital in Agartala. P.W.2, Kamal Debnath is another tenant under P.W.3. Being an independent witness, he corroborated the evidence of P.W.3 in regard to the existence of good relation between the appellant and his wife and taking her to hospital. P.W.4, Smt. Ruma Debnath, as an independent witness and a co-tenant under PW.3, corroborated the evidence of PW-2. The accused-appellant took all possible steps to save the life of his wife by dousing the fire, removing her immediately to the local hospital and to the city hospital at Agartala.

10. According to Mr. Bhowmik, learned Counsel for the appellant, it was purely a case of accident and there is no reason to disbelieve the husband who loved and maintained a good relation with her. Emotionally, Mr. Bhowmik quipped how a husband would kill a wife who was carrying a baby in her womb for nine months. The prosecution, according to Mr. Bhowmik, miserably failed to prove the charges under Sections 498A and 304B of the IPC and, as such, the impugned conviction and sentence are liable to be set aside.

11. Mr. Bhowmik further submitted that there is no direct evidence to establish that the appellant either committed homicide or instigating the deceased to commit suicide or entered into any conspiracy to aid her in committing suicide. There is no evidence establishing charges of cruelty within the meaning of Section 498A of the IPC. According to Mr. Bhowmik, the mere incident of death of a woman in an accidental fire in the rented house of the husband would not automatically give scope for presumption that he had a hand in the death of his wife. In this regard, he has cited and relied upon the case of Rajababu & Anr.v.State of M.P., reported in AIR 2008 SCW 5435. It is submitted by Mr. Bhowmik that Section 113B permits a presumption to be drawn against the accused in regard to dowry death provided the prosecution establishes that soon before her death the woman was subjected to cruelty or harassment. The charge for demand of dowry having not been proved in accordance with the law, no presumption of cruelty and harassment can be drawn. In this regard, he has referred the decision rendered by the Apex Court in the cases of Baljeet Singh & Anr. v.State of Haryana, reported in I (2004) DMC 407 (SC)=II (2004) SLT 320=I (2004) CCR 354 (SC)=AIR 2004 SC 1714 and State of Andhra Pradesh v. Raj Gopal Asawa, reported in I (2004) DMC 586 (SC)=II (2004) SLT 793=II (2004) CCR 72 (SC)=AIR 2004 SC 1933.

12. Last of all Mr. Bhowmik, learned Counsel for the appellant submitted that the learned Trial Court gave much value to the evidence of PW-1, Shanti Ranjan Das, PW-5 Smt. Hemolata Das, PW-6, Smt. Bina Das, PW-7, Smt. Nani Bala Das, PW-9, Smt. Kajal Baidya, PW-10, Sukhendu Bikash Das and PW-11, Subal Chandra Das, who are interested witnesses being the parents and close relatives of the deceased who did not make any statement before the police under Section 161, Cr.P.C. about dowry demand, payments made and mental and physical harassment meted on the deceased. The allegation of torturing the deceased for dowry demand, according to Mr. Bhowmik, is an afterthought and the same has been projected by the prosecution witnesses by adducing false evidence before the Trial Court. The charges of dowry demand and giving mental and physical torture to the deceased, submitted Mr. Bhowmik, has not been proved and unless the same is proved there is no scope for presumption under Section 113B of the Evidence Act.

13. We have perused the records carefully and given our anxious consideration on the submissions made by the learned Counsel for the appellant and the State. The undisputed factual position in this case is that after being ousted from his parental house, the accused-appellant had been living with his wife in a rented house of PW-3 and at the time of occurrence, in the midnight of 4.11.2003, both husband and wife were living together in the house. There is no eye-witness to the incident. The charges are, therefore, required to be proved by the circumstantial evidence and we now consider the circumstances relevant for the purpose of adjudication of this appeal.

14. There is no dispute to the fact that the incident took place in the kitchen of the accused-appellant in the midnight of 4.11.2003. According to the evidence of PW-3, landlord, at about 11.30 p.m., he heard the cry in the rented house of the accused Kaushik and when he came out he saw the wife of the accused standing in the courtyard with burn injury and the accused was pouring water to extinguish the fire. While he asked Banti, the wife of the appellant, how the fire caught on her body, she did not tell him anything. At the same time, he stated that before occurrence, the relation between the accused and his wife was well and good. The said witness was declared hostile at the request of the prosecution. In his deposition, the landlord (PW-3) further stated that before the particular incident he found the relation between the deceased and the accused appellant well and good. In the cross-examination by the defence it was stated by him that he did not tell the police that the accused appellant used to assault the deceased. It was also stated that he had not seen the accused assaulting his wife. It is also in his statement that the deceased did not make any complaint against the accused/appellant.

15. PW-1, Shanti Ranjan Das, the father of the deceased, although stated about taking money from him by the accused/appellant, but in the cross-examination, on being asked he could not say anything regarding the date of such payments. He simply stated that he did not remember the dates of such payments. He also stated that he did not produce any document. It was the case of the defence that the medicine shop belonging to the accused-appellant was in existence from before the marriage.

16. According to the evidence of P W-1, the appellant Kaushik came to Agartala on 4.11.2003 and on that day, till 8.30 his daughter was on contact over telephone with him. In the same night, the occurrence took, place and on the next day, the appellant informed about the incident over telephone to him. The evidence of PW-1 on dowry demand and payment thereof, although, is claimed to have been corroborated by the other witnesses namely, PW-5, PW-6, PW-7, PW-9, PW-10 and PW-11, by Mr. A. Ghosh, learned P.P., Tripura, but Mr. Bhowmik, learned Counsel for the appellant has taken a strong objection to the veracity and value of such evidence without furnishing any details as to how and when the money was paid for purchasing motorbike and vehicle.

17. In the above context, it will be pertinent to mention here that the aforesaid witnesses, while making their statements before the police under Section 161 Cr.P.C, did not mention about the same. Going through the FIR, we find that the details of the allegation of demand for money from the informant, PW-1, are not available.

18. The aforesaid witnesses, P.W.1, P.W.5, P.W.6, P.W.7, P.W.9, P.W.10 and P.W.11 did not make any statement with regard to dowry demand and payment of money to the accused-appellant. The statement under Section 161, Cr.P.C. is not an evidence under the law. The defence is entitled to take advantage from such a position, more particularly in view of the inherent contradiction. The statement under Section 161, Cr.P.C. can be tested to find out whether an omission is a contradiction or not, which is irreconcilable with the deposition made in the Court. It has been held by the Apex Court in the case of Tahsildar Singh v.State of U.P., reported in AIR 1959 SC 1012, that every omission does not amount to a contradiction; omission which by necessary implication leads to conflicting version between the statement made before the police and the Court would amount to contradiction. This was followed in the case of State of Assam v.Rameshwar Sarma, reported in ILR (1963) 15 Assam 552.In view of the above position of law, we find it legally untenable the evidence of the above prosecution witnesses on dowry demand and payment thereof and we hold that the prosecution failed to prove the aforesaid charge by adducing sufficient evidence.

19. In order to destroy the evidence of PWs 1, 5, 6, 7, 9, 10 and 11 on dowry demand and harassment, the defence Counsel, during cross-examination confronted them with their statement recorded under Section 161, Cr.P.C. that they never made any statement before the Darogababu about the dowry demand and harassment. The defence statement, as could be understood, is that if the said witnesses did not say anything about the facts of dowry before the I.O. at the initial stage i.e. during investigation, the testimony of these witnesses before the Court carries no value and no conviction can be recorded on the basis of such evidence. The law is already settled in this regard. Omission of making any statement of facts before the police under Section 161, Cr.P.C, during investigation, if amounted to material contradiction, would impair the evidence of prosecution witnesses. In this regard, we may refer to one of the cases namely, Rajayya v. State of Kerala, reported in I (1998) DMC 475 (SC)=III (1998) SLT 460=II (1998) CCR 13 (SC)=(1998) 4 SCC 85. In the instant case, the defence successfully rebutted the evidence of those prosecution witnesses.

20. The accused-appellant had denied his involvement in the death of his wife. According to him, it was purely an accident; she was caught by fire from the stove while she was cooking in the kitchen. It will be pertinent to mention here that although the incident occurred on 4.11.2003, but the FIR was lodged only on 12.11.2003 after the death of the wife of the accused/appellant. Till lodging of the FIR from the date of the incident there was no accusing finger against the accused/appellant.

21. Let us have a look at the provisions of law. Dowry death has been defined with prescription of punishment for committing this offence under Section 304B, IPC, which may be quoted below:

'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.

(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.'

22. In the present case, there being no direct eye-witness against the accused-appellant, the question is, whether under the aforesaid facts and circumstances, the accused-appellant could be convicted under Section 304B, IPC. The Evidence Act has taken care of such situation under Section 113B, which provides presumption that may be drawn by the Court under certain circumstances. To quote Section 113B of the Evidence Act.

'Section 113B. When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.

For the purpose of this section, ‘dowry death’ shall have the same meaning as in Section 304B of Indian Penal Code.'

23. The applicability of this Section is subject to existence of certain facts. First of all, it should be shown that soon before her death, the woman was subjected by a person to cruelty or harassment, 'for or in connection with any demand for dowry'. Looking at the facts and circumstances of the present case, and also the evidence available, we are not satisfied that (1) the death of appellant’s wife was caused by burn injury under an unusual circumstances within seven years of her marriage; (2) she was subjected to cruelty and harassment by her husband accused-appellant in connection with demand for dowry.

24. Mr. A. Ghosh, learned P.P. put much emphasis on the statement of PW 6 and 7. These two witnesses in their depositions stated that when they asked the deceased in the hospital as to whether she herself set fire or not, the deceased answered in the negative and stated that it was done by 'them'. As per their own statement the deceased could not utter fully but by movement of her head stated the same. Even if such statement are taken on its face value, the word 'they' need not necessarily take into its fold the accused/appellant. On the other hand the learned Trial Court did not find any evidence against other accused person and they have been acquitted. It will be too much to convict the accused/appellant on the basis of such evidence.

25. P.W. 2, who accompanied the deceased and the accused-appellant in his car to the hospital clearly stated in his cross-examination that the relationship between them i.e. the deceased and the accused-appellant was good. He also stated that on the way to hospital, the deceased on being asked by the accused-appellant as to how the incident happened, the deceased told him that the fire set on her from the stove. PW 4, in his deposition stated about the good relationship between the accused-appellant and the deceased.

26. The deceased did not name anybody as perpetrators. Even if it is assumed that she was being harassed by her in-laws, same by itself cannot lead to the inference that it is the accused/appellant, who committed the offence. As stated above, it will be too much to convict the accused-appellant solely on the purported expression 'they'.

27. Mr. Ghosh, learned P.P., argued that presumption against the accused-appellant is to be drawn, as he was the only person present at the time of occurrence. According to him presumption is stronger against the accused-appellant because of the fact that he was the only person present at the time of occurrence. According to him, such presumption finds support from the circumstances that one new ‘Nutan’ stove was found inside the kitchen as per the seizure list (Exhibit P/2). Merely because, the stove was new, same by itself cannot lead to the conclusion that there could not have been any fire from the same. As regards the use of the same, the Exhibit P/2 only speaks of the probability of same being remained unused since long. Such remark will have to be tested along with the statement made by th

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e PW 2, who categorically stated that the deceased herself told the accused/appellant that the fire set on her from the stove. 28. Suspicion arises and the accusing finger can be pointed at the person who was present at the place of occurrence and at the relevant time. Merely because the accused-appellant was present at the time of occurrence, a valid presumption cannot be made holding him responsible for the accident, meaning thereby that he committed the offence under Sections 304B, IPC. Even if it is taken as a case of accident or a case of unnatural death of the woman, the accused-appellant cannot be held guilty of the charge under Section 304B of IPC and presumption cannot also validly be drawn against him under Section 113B of the Evidence Act. In this connection, learned Counsel for the appellant placed reliance on the decisions in Baljeet Singh, Raj Gopal Asawa and Sham Lal (supra) which lend support to the case of the accused-appellant. 29. Having considered the facts and circumstances of the case and on perusal of the records, particularly, the evidence on record, we are of the considered view that the prosecution has failed to prove the charges of dowry demand and harassment given to the deceased wife and the learned Trial Court wrongly made presumption against the accused-appellant under Section 113B of the Evidence Act and also wrongly convicted and sentenced him under Section 498A and 304B of IPC. We are of the considered opinion that the prosecution failed to establish its case against the accused-appellant beyond all reasonable doubt and the accused-appellant is entitled to benefit of doubt. 30. In view of the above, we interfere with the impugned judgment dated 9.12.2005 passed by the learned Additional Session Judge, Belonia, South Tripura in Case No. S.T. (ST/B) of 2005 convicting and sentencing the accused-appellant under Sections 498A and 304B of the IPC and the same aside and quashed. Accordingly, we allow this appeal. 31.The appeal stands allowed. LCR be sent down immediately along with the copy of this judgment to the Court below. The appellant be set at liberty forthwith, if not required in connection with any other case. Appeal allowed.