Crl.A. 388/2002 BEFORE HON’BLE MR JUSTICE H N SARMA JUDGMENT AND ORDER (ORAL) Being aggrieved and dissatisfied with the judgment and order passed in Sessions Case No. 14(DMFT) 2001 dated 7.11.02 by the learned Adhoc-Additional S essions Judge, Darrang, Mangaldoi convicting the accused appellant under Sectio n 304(B-II) IPC and sentencing him to undergo RI for seven years, the present ap pellant has filed this appeal. 2. Heard Mr. BM Choudhury, learned counsel being led by Mr. JM Choudhury, l earned Sr. counsel for the appellant and Mr. Gogoi, learned Addl. PP appearing o n behalf of the State. 3. The prosecution case leading to the registration of Tangla PS Case No. 60/2000 under Section 302/34 IPC interalia is that on 14.9.2000 one Dipa Devna th, w/o Ratan Devnath, appellant aged about 24/25 years, died out of burn injury in her in-laws house and she succumbed her injuries at Khairabari Primary Hea lth Center immediately she was taken there for necessary treatment. Upon expiry of the victim lady, Doctor on duty, sent the information about the death of the victim lady and upon receipt of the information from Doctor, the police making a GD entry under Khairabari Police Station, registered as UD Case No. 5/2000 an d the ASI Haricharan Deka, PW 14 and proceeded to the place of occurrence and ma de a inquest report of the victim. Thereafter, Ezahar was lodged by PW 2, the br other of the victim lady on 15.9.2000 before the O.C. Tangla Police Station stat ing interalia that his sister Dipa Devnath was married to the appellant in the m onth of last Falguna and died on 14.9.2000 out of burn injury and the informant firmly suspected that the family of her husband has killed her by setting her on fire. On the basis of the said information, the police registered a case being Tangla PS Case No. 60/2000 and started investigation. During the course of inves tigation, I.O. recorded the statement of the witnesses under Section 164 Cr.P.C. , vide Exbts. 6,7,8 and 9 seized the materials as per seizure list vide Exbt. 3, collected the postmortem report and the I.O. having found prima facie case subm itted the charge sheet against the appellant and one Smti. Kamala Devnath under Section 304(B) IPC on 14.9.2000 vide Ext. 5. Upon receipt of the charge sheet, t he case being extremely triable by the court of Session, the same was committed to the Court of Sessions wherein the case was registered as Sessions Case No. 14 0(DMFT)/01 and the case was made over to the learned Adhoc Addl. Sessions Judge for necessary disposal. 4. On the basis of the documents and materials submitted under Section 173 Cr.P.C. and upon hearing the prosecution and defence, charges under the aforesa id Section of law were framed against the accused persons and on being explaine d, they denied the charges and claimed to be tried. 5. During the course of trial, the prosecution examined as many as 17 witn esses including informant, the Doctor, two I.Os. and scribe of the FIR whereas the defence examined none in support of the prosecution. At the end of the tria l, the learned Adhoc-Addl. Sessions Judge vide impugned judgment and order held the accused persons guilty of the offence under which they were charged and con victed them in the manner as aforesaid. However, the learned trial judge acquitt ed the other accused for want of incriminating materials and evidence. 6. Mr. BM Choudhury, learned counsel submits that the prosecution has fail ed to prove all the necessary essential ingredients and convicted the appellant under Section 304(B) IPC inasmuch as the prosecution has failed to prove that th ere was any demand of dowry from the appellant soon before the death of her wife by burn injury and in the absence of this vital ingredient the conviction and s entence so inflicted upon the appellant is illegal. Mr. Gogoi, learned Addl. PP , however, referring to the statements made on record submits that it cannot be said that there is absolutely no evidence of demand of dowry in the instant case and from the facts and circumstances of the case, it cannot be said that the ap pellant is not guilty of offence. The submission of the learned counsel led me t o meticulously scrutinize the evidence of the prosecution witness and other witn esses. Upon scrutiny of the evidence of the prosecution witnesses, I find that t he PW 1, Smti. Swapna Devnath, younger sister of PW 2 and PW 11 who respectively sister and brother of the victim, spoke something about the demand of dowry. O ther witnesses has not stated anything about the said statement. Let us scrutin ize all these witnesses in respect of proof of the aforesaid vital ingredients of Section 304 (B) IPC. 7. PW 1 in here evidence stated interalia that marriage between the accuse d and her sister was solemnized about one year three months ago socially and at the time of marriage, here father gifted all the essential item but some items could not be provided at the time of marriage and accordingly it is suspected th at she was killed for that reason. After the marriage, she went to her sister’s house when her sister, victim, was suffering from some illness and at that tim e the accused complained about the quality of the articles gifted at the time o f marriage and for that reason she was suffering mentally. After 3 / 4 days fr om her departure from her sister’s house, her sister was killed by burning. 8. In her cross, she stated that at the time of marriage though an arrangem ent between the accused and her sister was made relating to dowry but she is n ot aware of the said arrangement. She further stated that the accused did not ma ke any demand of dowry to her father after the marriage. She further stated tha t she went to her sister’s house when she was suffering from diarrhea and she wa s admitted in the hospital by the accused and she had to stay there for two day s and in those two days, the appellant told her that the articles given at the t ime of marriage as dowry was not of good quality. 9. PW 2, Sujit Debnath, who is the elder brother of the victim, stated in h is chief examination that after six months of the marriage of his sister with th e accused, she died in their house out of burn injuries and they suspect that th e husband and his Sister Kamala Devnath has killed her. There was some demand of dowry at the time of marriage and his younger sister Swapna inform him that the accused person complained about the sub-standard of the articles given to the a ccused at the time of marriage. In his cross, he stated that before or after the marriage, the accused Ratan has not stated anying about dowry. 10. PW 11, Ajit Devnath who is another brother, stated interalia that the ac cused and the victim having fallen in love, they wanted to marry each other but the accused demanded colour TV or cash of Rs. 20,000/-as dowry. Thy could not sa tisfy the demand at the time of marriage but assured to give later on which was agreed by them. After six months of the marriage, his sister expired of the bur n injury. He further stated that his sister Swapna went to the house of accused after the marriage and she was told by the accused that the articles given at th e time of marriage are not good quality. He further stated that the condition of the goods are no so good and that is why they killed the victim. 11. In cross, he stated that after the marriage, accused Ratan did not make demand of colour T.V. or cash amount and such demand was made only before the m arriage. 12. PW 3 is one Dipak Debnath who corroborated that the victim died during s ix months of the marriage with the accused and on the fateful day, he went to t he house of the accused as he went there as per instruction family as at that ti me there was about to rain and he went to bring umbrella. Twenty minutes thereaf ter he heard noise and going there, he found the victim with the burn injury. He further stated that the relationship between the victim and accused was good. 13. PW 4, Mun Barman is another neighbour of the victim and he, hearing th e noise from the house of the accused on the fateful day, went there and found t hat smoke are emanating from the store room of the accused and he got news from the father-in-laws of the accused. 14. PW 5 is a person who came to the place of occurrence after incident is o ver and after arrival he found the victim with burn injury. 15. PW 7 is the scribe who wrote the FIR and the FIR is marked as Ext.2 and the signature is marked as Ext 2(1). 16. PW 8 is another neighbour who came to the place of occurrence after hea ring noise and found the victim burning. 17. Similarly, the PW 9 is also a witness of the incident, police seized o ne 20 ltrs. Jar of Kerosene Oil and the same was marked as Exbt. 3. 18. PW 10 is a labour Sardar who stated that he has no direct knowledge of the incident and police also seized one gallon. 19. PW 12, Tarani Devnath, stated interalia that on the fateful day hearing the news that the victim committed suicide, he went to the house of the victim b ut in the meantime she was taken to Khairabari hospital for necessary treatment. Police prepared the inquest report in his presence and the same is marked as Ex t.4 wherein he put his signature which was marked as Exbt. 4(1). 20. PW 13 is also witness of the inquest report. Exbt. 4 is the inquest repo rt and the Ext. 4(2) is the signature. 21. PW 6 Dr. Bhabani Prasad Khound who was the Medical and Health Officer at the relevant time, examined over the dead body of the victim . He stated that the postmortem was conducted jointly by him and Dr. P. Deka, Srnior Medical an d Health Officer, Mangaldoi Civil Hospital and found the following injuries : 1. Head and face are burnt. There is seiverning of the heire twisted and b reaks on touch. 2. Anterior wall of the chest and abdomen are completely burnt. 3. Posterior wall of the chest and abdomen are completely burnt. 4. Anterior surface of both lower limbs and post surface up to knee joint a re burnt. 5. Both upper limbs are burnt and blackin colour. Total area burnt 80% of the bodysurface. Antimortem burn by flame of head and face, chest, abdomen, Anterior suff ace of the lower limb extending up to the knee-Both upper limbs are burnt up to the elbow joint. There is blackening of the burnt area with pugiliatic attitude of the body. He has opined that the cause of the death due to shock as a result of bu rn injury by the deceased. Ext.1 is the P.M. Report and Ext. 1(1) is his signatu re Ext. 1(2) is the signature of Dr. P. Deka. 22. PW 16 Dr. Pankaj Chandra Baishya who was working as Medical and Health O fficer at the relevant time at Khairabari State Dispensary intimated the police and prepared the inquest report. 23. PW 14 is the Haricharan Deka, I.O. of the case who stated that on 14.9 .2000 upon receipt of the FIR from the Medical Officer Khairabari Hospital, the O.C of the Khairabari PS mde the GD Entry being Khairabari P.S. U.D. Case No. 5/2000 and he was entrusted with the case to do the investigation as no Magistra te was available at that time. He went to the place of occurrence and prepared t he inquest report on the dead body and marked the same as Exbt. 4 wherein he pu t his signature and the same was marked as 4(3). Subsequently, the dead body was sent for post mortem to Mangaldoi Civil Hospital and thereafter a case was regi stered as Tangla PS and as such sent the U.D. case to the Mangaldoi Police Stati on. 24. PW 15 is Mridul Baruah, another I.O. of the case who has got no direct k nowledge about the occurrence. He stated that on 31.10.2000 he received the case diary of GR Case No. 842/2000 from the ASI Rupram Hazarika and by that time the investigation was almost complete and as per instruction of the O.C. he submitt ed the charge sheet against the appellant under Section 304 (B) IPC. 25. P.W. 17 is the Bench Assistant of learned Magistrate, 1st Class who reco rded the statement under Section 164 Cr.P.C. vide Exbt. 6,7,8 and 9 wherein he put his signature as Exbt. 6(1), 7(1), 8(1) and 9(1). Exbt. 6(2) is the signatur e of witness of Ajit Devnath, Exbt. 7(2) is the signature of Nitai Devnath, Exbt . 8(2) is the signature Dabele Devnath and Ext. 9(2) is the signature of Swapna Devnath which were taken into consideration. 26. In the instant case, the fact that the victim was married to the accused and she died out of burn injury within one year of the marriage and she died in the house of the accused are not disputed. Mr. Choudhury strenuously submits th at in order to attract the provision of Section 304(B), the prosecution is to pr ove that the victim woman expired by burn injury and it is to be shown that soon before the death she was subjected to cruelty or harassment in connection with the demand for dowry. According to the learned counsel, this vital ingredients o f Section 304 (B) the demand for dowry soon before her death could not be proved by the prosecution. From the evidence of the prosecution witness, as indicated above, we find that three of the prosecution witnesses, namely P.W. 1, P.W.2 a nd P.W. 11 put something about the demand of dowry. On careful and meticulous ex amination and assessment of the statement of the aforesaid witness it is found that none of the witness has spoken that such demand for dowry was made soon bef ore the death of the victim lady by the appellant. The demand for dowry soon bef ore the death being a condition precedent, it is the bounden duty of the prosecu tion to prove such demand beyond all reasonable doubt. I have also carefully scr utinize Exbts. 6, 7,8 and 9 from the statement recorded under Section 164 Cr.P.C . before the learned Magistrate. In those statement also basic facts regarding d emand of dowry soon before the death of the victim was lacking. Exbts. Do not di sclose that such demand was made soon before the death of the victim. 27. Section 113 of the Indian Evidence Act, 1872 provides a presumption as t o the dowry death to the fact that when the question arises as to whether a pers on 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 suc h person had caused the dowry death. In the instant case, the death o the victim lady having been caused by burn injury, in order to attract the presumption und er Section 113-B of the Indian Evidence Act, the prosecution is to prove about s uch demand for dowry soon before the death. The prosecution failed to prove the aforesaid vital ingredients to attract the provision of Section 304 (B) IPC. 28. Consequently, the appeal stands allowed and the impugned judgment is set aside and quashed and the accused is set at liberty forthwith, if he is not wan ted in connection with any other case. Since the accused is on bail, he is disc harged from the bail bond. 29. Registry is directed to transmit the LCRs forthwith.