Tripura High Court

Sri Biswajit Bhowmik vs State Of Tripura on 1 April, 2019

Equivalent citations: AIRONLINE 2019 TRI 48, 2019 CRI LJ (NOC) 471

Author:
Arindam Lodh

Bench:
Arindam Lodh

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HIGH COURT OF TRIPURA
AGARTALA

CRL.A.(J) NO.35 OF 2018

Sri Biswajit Bhowmik
S/o Shri Bimal Bhowmik
Resident of Vill-34 Card, East Masli,
P.S.-Manu, Dhalai Tripura

......... Appellants

Versus

State of Tripura
........ Respondents

For Appellant(s) : Mr. Samar Das, Adv.

For Respondent(s) : Mr. A. Roy Barman, Addl. P.P.

Date of hearing & delivery
of Judgment : 01.04.2019

Whether fit for reporting : YES.

HON'BLE MR. JUSTICE ARINDAM LODH

JUDGEMENT AND ORDER(ORAL)

The present appeal is directed against the Judgment of

conviction and sentence dated 19.05.2018 passed in Sessions Trial

64(U/K) of 2015, by the learned Sessions Judge, Unakoti Judicial

District, Kailashahar, whereby the appellant was sentenced to suffer

rigorous imprisonment for two years and a fine of Rs.10,000/- with

a default stipulation for the offence under
Section 498A
of IPC and

also sentenced him to suffer rigorous imprisonment for 8 years for

commission of an offence under
Section 304B
of IPC.

2) Heard Mr. Samar Das, learned counsel appearing for

the appellant as well as Mr. A. Roy Barman, learned Addl. P.P.,

appearing for the State-respondent.

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3) Prosecution case, as encompassed from the FIR is that

one Anima Das lodged a complaint with the O/C, Manu P.S. on

16.03.2015, that her daughter Ranjita Das was given in marriage

with the appellant Biswajit Bhowmik of East Machli on 24th Sravana,

1421 BS as per Hindu rites and customs. After marriage her

daughter was taken to her in-laws‟ house. They started to live

peacefully but after one month thereafter her daughter was

subjected to physical and mental torture on demand of Rs.50,000/-

as dowry by her in-laws. Her daughter informed them about the

torture over telephone and told that if they failed to pay the said

sum of Rs.50,000/-, then, she would be killed. Under that

circumstance, the complainant being the mother paid Rs.50,000/-

in cash to her son-in-law in presence of other members of his house,

but, even after that the in-laws of her daughter pressurized her to

pay again a sum of Rs.50,000/- which they also paid to the

appellant on 1st Pousha. It was further stated that during that time

her daughter was 7 months pregnant. She has further complained

that the appellant had illicit relation with another Chakma lady and

for that, he used to return home at dead hour of night and when her

daughter tried to protest, the appellant used to beat her black and

blue. Thereafter, on 23rd Pousha they brought her daughter to their

home and during that time her daughter unfolded every episode of

torture. However, on 27th Pousha they again sent their daughter

back to her in-laws‟ house, but her in-laws continued torturing her

physically as well as mentally. On 15.03.2015 at about 8 A.M., the

in-laws of her house informed them that her daughter was admitted

in Manu hospital in serious condition and requested them to see

their daughter. Accordingly, she and her husband went to Manu

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hospital and found their daughter lying dead in the morgue of the

hospital. On removal of the clothes from her body, they found injury

marks on neck and on other different parts of the body and they

could understand that their daughter was murdered by her husband

and her in-laws.

4) On the basis of this written ejahar, the Officer-in-

Charge of the police station registered a case under
Section 304B
of

IPC and subsequently, after investigation, the charge-sheet was

submitted by investigating officer against the accused-appellant

under
Section 304B
/
of IPC.

5) Cognizance of the offence was taken by the learned

Sub-Divisional Judicial Magistrate, Longtharai Valley and after

exhausting all procedures, committed the case to the Court of

learned Sessions Judge.

6) After perusal of the police report, the learned Sessions

Judge framed the following charges:-

"Firstly:- That, you being the husband of Smt.
Ranjita Das on 15/3/2015 and different dates and
occasions before 15/3/2015 at 34 Card, East Masli under
Manu P.S. subjected said Smt. Ranjita Das to cruelty
both physically and mentally by making her harassment
and causing physical assault with a view to coercing her
and her parents meet unlawful dowry demand for cash
money and on account of failure thereof to put her into
assault and abused her off and on, and thereby
committed an offence punishable under
section 498(A)

of the Indian Penal Code and within my cognizance.

Secondly:- That, you on 15/3/2015 at any time
before 0800 hours at 34 Card, East Masli under Manu
P.S. committed dowry death by causing the death of
Smt. Ranjita Das of your wife and thereby committed an

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offence punishable under
Section 304(B)
of the Indian
Penal Code and within my cognizance."

7) To substantiate the charge-sheet, the prosecution

has examined as many as 26 witnesses. On closer of the

prosecution evidence, the accused was examined under
Section
of CrPC where the appellant denied the incriminating

evidence against him and also did not adduce any evidence in his

defence.

8) Mr. Samar Das, learned counsel appearing for the

appellant while urging for setting aside the judgment and order

of conviction and sentence has contended that the learned Trial

Court while convicting and sentencing the accused-appellant

under
Section 498A
of the IPC mainly relied upon the evidence of

the related witnesses and there is no evidence to substantiate

that the appellant had demanded Rs.1,00,000/- in two phases as

dowry.

He further submits that evidence is absolutely absent

in regard to the commission of offence under
Section 304B
of the

IPC. The prosecution has also placed into service as many as 12

documents Exbt-1 to Exbt-12, a hand-sketch map along with

index was also prepared by the investigating officer indicating

the place of occurrence.

9) On perusal of the evidence, it reveals that P.W-1,

P.W-4, P.W.-5, P.W.-15 and P.W.-26 are related witnesses of the

deceased-wife of the appellant being the mother, father, brother

and sisters respectively. To determine sustainability of

conviction, in my considered opinion, the evidence of the related

witnesses may be evaluated first.

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10) P.W.-1, the mother, Smt. Anima Das has deposed

that her daughter was given in marriage to the appellant

according to Hindu rites and customs as stated above and after

marriage her daughter lived happily for one month with her

husband. After about one month from the date of marriage as

and when she used to telephone her daughter and wanted to talk

with her son-in-law i.e., the appellant herein, her daughter used

to tell that her husband had not returned home till that time

which might be around 11pm or 12 night and when she insisted

her to tell her about the cause, she suddenly broke down and

started crying and informed her that her husband was

maintaining illicit relation with one Menaka Chakma of East Masli.

At that time, her daughter also informed that the appellant

demanded Rs.50,000/- for the purpose of vegetable business to

be paid by the complainant. Hearing this information, they

arranged Rs.50,000/- and she carried the amount to the house

of the appellant on the 2nd month of Pousha of that year and

handed over the amount to the appellant in presence of his

mother. At that time, she stayed back for two days in the house

of her deceased-daughter and on one night, when she was

sleeping with the mother-in-law of her daughter, she suddenly

woke up and found her daughter walking here and there at dark

night and seeing that position she also got up with curiosity and

thereafter, she found that the mother of the appellant had locked

the room of her daughter with lock and key and the key was

kept outside the room so as to enable her son-in-law to enter

into the room at odd times of the night. When on the following

day, she asked her daughter, she replied that her husband used

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to return home at odd hours of night. She informed the issue to

the father-in-law of her daughter but to no avail. She came back

to her home after staying there for about six days and at that

time, she also took her daughter along with her. After about 20

days, the said witness escorted her daughter on her way back to

her matrimonial home. After her return, she was assaulted by

her husband for divulging the fact of his maintaining illicit

relation with Menaka Chakma and returning home every night at

odd time. At that time her daughter was pregnant for three

months. She had paid another Rs.50,000/- with a hope of her

daughter‟s peace. On day of 28th Phalguna of that year she was

informed by the father-in-law of her daughter that her daughter

was ill and admitted to Manu Hospital. When they rushed to

Manu hospital, she was telephonically informed by the father-in-

law of her daughter to wait at the Manu PS gate and they were

coming by an auto and thereafter, they went to the hospital by

that auto along with the father-in-law of her daughter and when

they got down from the auto at Manu Hospital, the father-in-law

of her daughter, Bimal Bhowmik told her that her daughter

already expired and hearing that information she became

unconscious and thereafter, when she regained sense, she was

taken to the police station and at that time two brothers of her

son-in-law were there and they did not allow her to telephone

anybody. She had seen the dead body of her daughter in her

matrimonial home only at the night of that day. They were not

allowed to shift the dead body and it was cremated there by

them. She identified the appellant in the dock.

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In her cross examination, she has stated that at the

time of marriage there was no demand for dowry. The

information of illness of her daughter was first received

telephonically by her from the father-in-law of her daughter. She

lodged the FIR in the next morning. On question, she has stated

that she did not mention in the FIR that her son-in-law used to

return home late at night in the odd hours.

11) P.W-4, Sri Rabindra Ch. Das is the father of the

deceased Ranjita Das. He has stated that one day her daughter

telephoned his wife that the appellant was having illicit

relationship with one Chakma lady and his daughter was

demanded by her husband to arrange Rs.50,000/-. He has

stated that because of the illness of his wife they could not lodge

the FIR on the day itself and the FIR was lodged on the following

day. Considering the overall circumstances, the said witness has

stated that they suspected that their daughter was killed by the

members of the matrimonial house of her daughter.

12) P.W.-15, Smt. Laxmi Das has stated that the

complainant Anima Das was the sister-in-law and the deceased

Ranjita Das was the daughter of Anima Das. She has stated that

she was told by the mother of the deceased that Ranjita Das was

tortured by her husband on demand of Rs.50,000/- initially and

thereafter further amount of Rs.50,000/- was paid when the

deceased was pregnant and altogether Rs.1,00,000/- was paid in

two spells to the appellant. The said witness has stated that she

was told by Anima Das in the hospital that they found injury

marks in the abdomen, and on the throat and tongue was found

lying outside the mouth.

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There has been no substantial cross by the appellant.

13) P.W.-26, Smt. Aparna Rani Das was the elder sister

of the deceased Ranjita Das. She has stated that the husband of

her sister i.e., the appellant had illicit relationship with one

Menaka Chakma and since she was raising objection to that

relation, her sister was put to torture by the appellant. She has

further stated that the appellant used to return home late at

night in a drunken condition. The said witness was not cross-

examined substantially.

14) P.W.2, is the witness of seizure of some articles of

the deceased and he identified his signature to the said seizure

list.

15) P.W.-3 found the deceased lying on a cot with her

tongue outside of her mouth at the house of the appellant. She

did not say anything about the incident.

16) P.W-6, Smt. Gita Chakraborty, is the witness of the

inquest report (Exbt-4), she identified her signature on the said

seizure marked as Exbt-4/1.

17) P.W-7, Bimal Debbarma, was also seizure witness of

a DVD containing the video footage of inquest and post mortem

of the dead body of the deceased-Ranjita Das.

18) P.W-8, is a police constable and he put his signature

in the seizure list through which UBI pass book was seized

marked as Exbt-5. He identified his signature in the said seizure

list as Exbt-5/1.

19) P.W.9 is also a seizure witness of the seizure list

containing UBI pass book. He identified his signature which is

marked as Exbt-5/2.

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20) P.W.10 is also witness of the seizure list, marked as

Exbt-3.

21) P.W.11 is the first investigating officer who has

stated that he took up the investigation after being endorsed by

the Officer-in-Charge of the Police Station. He seized some

articles, prepared the inquest report and arranged for post

mortem examination of the deceased-Ranjita Das. He put his

signature as the witness of the seizure list.

In the cross examination he has stated that the

father of the deceased did not lodge any complaint against the

appellant before he met him on 15.03.2015.

22) P.W.12 is the neighbour of the appellant, he only

stated that his statement was recorded by SDPO of Manu P.S.

In the cross examination when his attention was

drawn to his statement under
Section 161
of the CrPC to the

effect that the appellant had illicit relation with one Menaka

Chakma, he denied that he made any such statement before the

investigating officer during his statement recorded under
Section
of CrPC.

23) P.W.-13 has not stated anything and she was

declared hostile.

24) P.W.14, Smt. Dipika Roy is a neighbour of the

complainant i.e., the mother of the victim. She has stated that

she heard from the mother of the deceased that the appellant

used to torture the complainant‟s daughter mentally and

appellant also used to return home at night at around 2.30 A.M

and before going out from the house, the appellant used to lock

the door from outside and he used to enter the house after

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unlocking the lock of the door. The said witness has also stated

that Ranjita Das i.e., the deceased told that she was demanded

Rs. 1,00,000/- and failure to payment would lead her to mental

torture and ultimately, the mother of the deceased-Ranjita i.e.,

the complainant had arranged Rs.1,00,000/- and paid it to the

appellant in two spells.

25) P.W.-16, Niranjan Nath is also a neighbour of the

complainant, he has stated that he runs a grocery shop and the

complainant being the mother of the deceased-Ranjita received

Rs.40,000/- from him to give to the appellant for starting a

business. However, the said amount was returned back to him.

One day he heard that Ranjita Das died. The said witness also

has stated that he was told that the appellant was maintaining a

illicit relationship with one tribal lady and on that issue there was

constant dispute between the husband and the wife. Nothing was

yielded from his cross-examination.

26) P.W.-17, is also the neighbour of the complainant.

She has stated that the appellant used to torture the deceased-

Ranjita and the appellant used to return home late at night for

having illicit relationship with one tribal lady. She has further

stated that the mother-in-law of Ranjita also used to torture her.

Once she has advised the complainant to lodge case against

them. After some days she heard that Ranjita died and also

heard that Ranjita was killed by her husband.

27) The statement of P.W.18, Sri Sanjay Chakma is of no

substance.

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28) P.W.19 Sri Pranab Bhattacharjee is the priest who

performed the marriage of the appellant and the deceased

Ranjita.

29) P.W.20 is the witness of the marriage. He had stated

that he was the catalyst of the marriage between the bride and

bridegroom.

30) P.W.21 has stated that about three years back the

complainant wanted to borrow Rs.5000/- from him and,

accordingly, he paid the said amount to her. Afterward it was

returned back to him. He has stated that he did not know as to

why the amount was taken.

31) P.W.22, Sri Alak Bhattacharjee is the Sub Divisional

Police Officer who had undertaken the charge of investigation

after P.W.11. He has stated that during his investigation, he

recorded the statements of some of the witnesses under
Section
of CrPC and he prima facie found that the appellant has

committed offence under
Section 304-B
/
498A
/
of IPC and

submitted the charge-sheet accordingly.

In the cross examination, P.W.22 has stated that in

his statement under
Section 161
of CrPC, Sri Rabindra Ch. Das,

P.W.4, the father of the deceased has not stated that he came to

learn from his wife that the room of his daughter was usually

being locked from outside. He has further stated that it is also

not mentioned in the 161
CrPC
statement of the Rabindra Ch.

Das that reaching the hospital he found the dead body of his

daughter and also found the ligature mark in her throat and

learned that his daughter was killed by her husband. He has

further stated in his cross examination that it is not mentioned in

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the 161
CrPC
statement of Rajat Das, P.W.5 that he came to

learn from his mother that his sister used to be locked in the

room from outside and also he did not mention in his 161
CrPC

statement that Dipika Roy, P.W.14 told to the SDPO that mother

of Ranjita handed over Rs.1,00,000/- in two spells to the

husband of Ranjita and he also told to the SDPO that after

getting information of illness of Ranjita her parents went to the

hospital and found her dead. It has further been confirmed by

the SDPO in his cross examination that it is not mentioned in the

statement recorded under
Section 161
of CrPC, Smt. Sandhya

Das, P.W.17 that she stated to the I.O that Ranjita was killed by

her husband by tying a cord of sewing machine.

P.W.22 has further confirmed that it is not mentioned

in the 161 statement of
CrPC
of Smt. Aparna Rani Das, P.W.26

that she stated to the I.O that on the previous day of her death

deceased-Ranjita had told her that she was tortured by the

accused-appellant on previous night.

32) P.W.23, Sri Sumanta Das is the witness who

conducted the videography of the post mortem examination of

the death body and he submitted the DVD disk. He identified his

signature in the seizure list.

33) P.W.24, is the seizure witness of the DVD disk he

also identified his signature in the said seizure list.

34) P.W.-25, Dr Monamita Das has stated that on

15.03.2015 she was posted as medical officer at Manughat CHC.

On that day she conducted a post mortem examination of dead

body under Manu PS GD entry No.11 dated 15.03.2015. She

found that there was a brownish red colour grooved ligature

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mark having a maximum weight of 2 centimeter over the upper

part of neck in the front side non-continues from right to left

side. After the post mortem examination, she opined that the

cause of death was due to asphyxia which was ante mortem

hanging in nature. She prepared the report and put her signature

on the said report which is marked as Exbt-12 and Exbt-12/1.

More significantly, the post-mortem report(Exbt.12) does not

indicate any other marks of wounds or injury so that it can be

opined that the victim was subjected to torture which forced her

to commit suicide. There was no sign of any old injury marks in

the body of the victim so as to enable this Court to come to a

finding that she was put to torture a couple of days before the

date of committing suicide.

None of the prosecution witnesses, nonetheless to

say, even the related witnesses have supported the version of

PW-1 to a particular incident that when she along with her

daughter, Ranjita returned back to the house of the appellant

from the parental house, Ranjita was severely assaulted by the

appellant since she had divulged the fact of his extra-matrial

relationship with a tribal lady.

Thus, the evidence and relating elements of torture

appeared to be vague and omnibus. The prosecution also has

miserably failed to establish the fact of the involvement of the

appellant with Menaka. She was neither interrogated nor was

shown as a prosecution witness.

35) On consideration of the evidences and witnesses as

stated above, the learned Trial Court came to the finding and

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recorded the sentence of guilt to the accused-appellant under

Section 498A
and
304B
of IPC as stated above.

36) Being aggrieved by the decision of the said judgment

and conviction of sentence, the appellant has preferred this

appeal before this Court.

37) I have meticulously perused the evidence and

materials on record which were considered by the learned Trial

Court.

38) In Arunava Bhowmik vs. State of Assam reported

in 2005(1) GLT 45, the Gauhati High Court while acquitting the

accused-appellant in that case from the charge of 498A
IPC
held

as under:-

"The second submission of the
learned counsel for the petitioner is that an offence
under
Section 498(A)
IPC does not cover a single
incident of altercation or assault between the
husband and wife.

In this case, there is no allegation against
the petitioner that he had demanded a colour T.V.
or harassed the informant for that purpose. There is
absolutely no evidence that beating or the alleged
act in question was with the view to compel the
informant to commit suicide. As a matter of fact,
there is no evidence of PW 1 that the husband had
assaulted her on any previous occasion. The witness
has deposed about the single incident of assault by
the husband and even if we accept the above
evidence of PW 1, which is not supported by other
witnesses, it does not amount to cruelty as defined
under
Section 489A
IPC. We find that the trial court
as will as the appellate court has failed to appreciate
the evidence in its proper perspective.
Both the Courts below also erred in holding that the
single incident of alleged assault on 04-09-92
amounts to an offence under
Section 498A
IPC.
Accordingly, we allow this revision and set aside the
order of conviction and sentence entered against
the accused petitioner. The accused is acquitted and
set a liberty forthwith. He need to surrender to the
bail bonds."

39) In
Manju Ram Kalita v. State of Assam
,

reported in 2010(2) GLT (SC) 27, where the Apex Court

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particularly in paragraphs 21 and 22 had discussed about the

meaning of „cruelty‟. It is observed that petty quarrels cannot

be termed as „cruelty‟ to attract the provisions of
section

498A
IPC, causing mental torture to the extent that it

becomes unbearable may be termed as „cruelty‟ and

ultimately set aside the conviction of the appellant therein

under
section 498A
of the IPC.

The learned counsel has

drawn my attention to the relevant paragraphs of
Manju

Ram Kalita
(supra) which are as under:-

"In Girdhar Shankar Tawade vs. State of
Maharashtra, AIR2002 SC2078, this Court held that
„cruelty‟ has to be understood having a specific
statutory meaning provided in
Section 498A
, IPC and
there should be a case of continuous state of affairs of
torture by one to another.

"Cruelty" for the purpose of
Section 498A
, IPC is
to be established in the context of
Section 498A
, IPC as
it may be a different from other statutory provisions. It
is to be determined/inferred by considering the conduct
of the man, weighing the gravity or seriousness of his
acts and to find out as to whether it is likely to drive
the women to commit suicide etc. It is to be established
that the women has been subjected to cruelty
continuously/ persistently or at least in close proximity
of time of lodging the complaint. Petty quarrels cannot
be termed as „cruelty‟ to attract the provisions of

section 498A
, IPC.

Causing mental torture to the extent that it
becomes unbearable may be termed as cruelty."

40) I may gainfully refer the decision passed by a

Division Bench of this Court in Durjoy Debnath alias Dulal

and anr. vs. State of Tripura reported in (2017) 1 TLR

208, this Court while dealing with similar issue has observed

thus in paragraph 18:-

" Before discussing their evidence, we are
inclined to quote here the observation of the Apex Court
made in para 48 of the sensational case of
Sharad
Birdhichand Sarda vs. State of Maharashtra
, 91984)
4SCC 116 which reads as follows:

Page 16 of 23

Before discussing the evidence of the witnesses
we might mention a few preliminary remarks against the
background of which the oral statements are to be
considered. All persons to whom the oral statements are
said to have been made by Manu when she visited Beed
for the last time, are close relatives and friends of the
deceased. In view of the close relationship and affection
any person in the position of the witness would
naturally have a tendency to exaggerate or add facts
which may not have been stated to them at all. Not that
this is done consciously but even unconsciously the love
and affection for the deceased would create a
psychological hatred against the supposed murdered
and, therefore, the court has to examine such evidence
with very great care and caution. Even if the witnesses
were speaking a part of the truth or perhaps the whole
of it, they would be guided by a spirit of revenge or
nemesis against the accused person and in this process
certain facts which may not or could not have been
stated may be imagined to have been stated
unconsciously by the witnesses in order to see that the
offender is punished. This is human psychology and no
one can help it."

41) I have given my anxious thought to the

evidence laid by the witnesses in the instant case

particularly the evidence of the related witnesses that is the

parents of the deceased-Ranjita as well as her brother and

sister. The complainant has stated that her daughter was

subjected to physical and mental torture off and on. She has

further stated that the appellant had demanded

Rs.1,00,000/- for the purpose of his business which she also

paid to the appellant. She has also stated that the appellant

used to maintain extra-martial relationship with a tribal

lady. The evidence of father, brother as well as the sisters

were the representation of the statement of P.W.1, which

they have been told by the complainant herein. None of the

related witnesses have been able to make any

statement stating specifically the date and time of torture

inflicted upon the deceased. It is not the case, that they

Page 17 of 23

have ever lodged any complaint to any authority under the

law.

42) Mr. Das, learned counsel appearing for the

appellant has candidly submitted that there must be some

nexus between the torture and the demand of dowry to

attract the provisions of
Section 498A
of IPC.

43)
Under the Dowry Prohibition Act, 1961
, the word

"dowry" defines in the manner as under:-

"Definition of 'dowry'.- In that 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 parents of either party to a marriage or by
any other person, to either party to the marriage or to
any other person,
at or before or any time after marriage in connection
with the marriage of the said parties but does not
include dower or mahr in the case of person to whom
the Muslim Personal Law (shariat) applies."

44) In
Bachni Devi vs. State of Haryana
, (2011)

4 SCC 427, the Apex Court, while interpreting the definition

of „dowry‟ given in
Section 2
of the Act, has held that the

term is defined comprehensively to include properties of all

sorts as it takes within its fold "any property or valuable

security" given or agreed to be given in connection with

marriage either directly or indirectly. Thus, the demand of

dowry must have some connection with the marriage and

the prosecution has to prove that the non-fulfillment of

demand of dowry leads the accused to cause torture, either

physically or mentally to drive the woman to commit suicide

or to cause grave injury or danger to life to his wife.

45) Thus, I find force in the submission of the

learned counsel. Section 498A is related to the demand of

Page 18 of 23

"dowry" which is prohibited under the
Dowry Prohibition Act

1961. Even if the statements of the related witnesses are

taken into account, then, it is surfaced that they have

categorically stated that the demand had been made by the

appellant to invest the said amount in the business purpose.

The demand related to „business‟ and demand related to

„dowry‟ is quite distinct. In other words, the demand relating

to the purpose of business cannot not be said to be a

demand of dowry.

46) It is further revealed from the cross examination

of the SDPO, PW.22 that the relative witnesses and other

neighbour witnesses of the complainant had exaggerated

and improvised the stories of torture and demand of dowry

in course of trial during their recording of evidence which

they have not stated in their 161
CrPC
statement.

47) Keeping in view the principles
laid down in

Arunava Bhowmik(supra),
Manju Ram Kalita
(supra)

and Durjoy Debnath alias Dulal(supra) it appears to be

very difficult for this Court to arrive at a specific conclusion

that the deceased-Ranjita Das was subjected to torture

physically and mentally for demand of dowry by the

appellant and hence, according to me, the ingredients of

Section 498A has not been fulfilled in the facts of the

present case due to which the conviction under Section

498A cannot be sustained.

48) Now, the question remains whether the

conviction and sentence passed under
Section 304B
of IPC

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is sustainable in the facts of the present case as declared by

the learned Trial Court.

49)
Section 304B
of IPC reads as under:-

" 304B. Dowry Death.- (1) Where the death
of a woman is caused by any burns or bodily injury
or occurs otherwise then 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 relatives shall be
deemed to have caused her death.

[ Explanation- For the purpose of this sub-section,
"dowry" shall have the same meaning as in
section 2

of the Dowry Prohibition Act, 1961 (28 of 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."

50) In order to convict an accused for the offence

punishable under
section 304B
IPC, the following essentials must

be satisfied:

i) the death of a woman must have been caused
by burns or bodily injury or otherwise than under
normal circumstances;

ii) such death must have been occurred within
seven years of her marriage;

iii) soon before her death, the women must have
been subjected to cruelty or harassment by her
husband or any relatives of her husband;

iv) such cruelty or harassment must be for, or in
connection with, demand for dowry.

51) When the above ingredients are established by reliable

and acceptable evidence, such death shall be called dowry death

and such husband or his relatives shall be deemed to have been

caused her death. If the above mentioned ingredients are

attracted, in view of the special provision under
Section 113B
of

the Evidence Act, 1872, the court shall presume and it shall record

such fact as proved unless and until it is disproved by the accused.

Page 20 of 23

However, it is open to the accused to adduce such evidence for

disproving such compulsory presumption as the burden is

unmistakably on him to do so and he can discharge such burden by

getting an answer through cross examination of the prosecution

witnesses or by adducing evidence on the defence side.

To attract the provisions of
Section 304(B)
IPC, one of

the main ingredients of the offence which is required to be

established is that "soon before her death" she was subjected to

cruelty or harassment.

52) Presumption of commission of offence under Section

304(B) is directly related to
Section 113-B
of the Evidence Act. A

conjoint reading of both the provisions of law emerges that where

the wife met with an unnatural death within seven years of

marriage and had been subjected to cruelty or harassment for/or in

connection with demand for dowry the court shall presume that

such person has caused the dowry death. Besides, to prove the

death within seven years of marriage, the prosecution has to

establish that the victim was subjected to cruelty or harassment

soon before her death and such cruelty or harassment was for

dowry. The expression "soon before her death" has not been

defined in either of the statute, therefore, in each case the Court

has to analyze the facts and circumstances leading to the death of

the victim and decide whether there is any proximate connection

between the demand for dowry, the act of cruelty or harassment

and the death.

53) "Soon before" is a relative term which is required to be

considered under specific circumstance of each case and no strait

jacket formula can be laid down by fixing any time limit. The term

Page 21 of 23

is not synonymous with the term "immediately before" and is

opposite of the expression "soon after". This word would imply that

the interval should not be too long between the time of making the

statement and the death. Approximate and live link between the

effect of cruelty based on dowry demand and the consequential

death is required to be proved by the prosecution. (Reliance is

placed on Kans raj Vs. State, 2000 (5) SCC 207(para-15).

54) Mere lapse of some time by itself would not provide to

an accused defence, if the course of conduct relating to cruelty or

harassment in connection with the dowry demand is shown to have

existed earlier in time neither too late nor too stale before the date

of death of the wife. The phrase "soon before her death" is an

elastic expression and can refer to a period immediately before her

death or within a few days or even a few weeks before it. But the

legislative intent in providing such a radius of time is to emphasize

the idea that her death should in all probabilities have been the

aftermath of such cruelty or harassment. In other words, there

should be a perceptible nexus between her death and dowry

related harassment or cruelty inflicted on her. It is for the Court to

decide on the facts and circumstances of each case whether the

interval would be "soon before her death" (reliance is placed on

Satvir Vs. the State
, reported in 2001 (8) SCC 633).

55) On perusal of the deposition of P.W.1, the mother of

the victim, it appears that she nowhere has stated the date and

time or even the period when the appellant had demanded Rs.

50,000/- from the victim. Even if, for argument sake, if the Court

believes the statement of the P.W.1 to be true, then also this Court

does not find any relation that the demand was made as a matter

Page 22 of 23

of dowry. More specifically to be stated, the demand, if any, was

made for the purpose of business. Thus, it becomes very difficult

for this Court to attract the ingredients of
Section 304B
IPC as this

Court has not been able to connect the said demand of Rs.

1,00,000/- to the fact of dowry which is prohibited by law. In

furtherance thereof, there is no evidence that the victim was

subjected to torture soon before her death on 15.03.2015. More so

to say prosecution has failed to produce any neighbouring witness

of the appellant to substantiate that Ranjita, the deceased wife was

ever subjected to torture either by the appellant or any other in-

laws.

56) In this nature of case, sometimes, conduct of the

accused as well as other in-laws also is required to be noticed. In

the instant case, the in-laws had rushed to the police station, all of

them accompanied the victim to the hospital, the father-in-law

informed the parents of the deceased over telephone and took

them to the hospital by an auto-rickshaw.

57) On meticulous analysis of the evidence and material on

record, it would be very difficult to say that the prosecution has

been able to prove the case beyond a reasonable doubt.

58) Hence, this Court is inclined to set aside the order of

conviction and sentence passed against the appellant under
Section

304B
of IPC as declared by the learned Trial Court. Accordingly, the

judgment and order dated 19.05.2018, whereby the appellant was

convicted and sentenced under Section 498A and 304B is set aside

and quashed.

Page 23 of 23

59) I have been informed that the appellant at present is in

jail. So, he shall be released forthwith if not wanted in connection

with any other cases. The surety is discharged accordingly.

60) In the result, the appeal is allowed. Send back the

LCRs.

JUDGE

suhanjit