Prabir Sarkar and Others vs State of Tripura

B.N. Singh Neelam, J.—This criminal appeal is so preferred by the accused/Appellants named above u/s 374(2) of the Code of Criminal Procedure against the judgment and order of conviction so passed by the learned Addl. Sessions Judge, South Tripura Udaipur dated 28.6.96 in sessions Trial No. 59(S.T/U)/93 convicting the accused/Appellants u/s 304(B) of the I.P.C. and sentencing each of them to undergo R.I. for life.

The prosecution case put in narrow compass is that on 14.2.89 an information was so communicated to the Officer-In-Charge Radha Kishorepur Police Station from Pitra Out Post on wireless, relating to an unnatural death occurring as reported from South Brajendranagar under Killa Police Station which was so communicated to Killa Police Station at 08-15 hours and accordingly a G.D. entry No. 267 was entered on 14.2.89. The U.D. entry and G.D. entry were so made relating to the unnatural death of Helon Rani Sarkar and law was set in motion when the police reached to the place of occurrence in Pitra village to the house of Sri Sudhangshu Sarkar one of the accused/Appellants the deceased being his daughter-in-law. It is after that when report was so lodged by Sri Nripen Ch. Bhowmick of Kishoreganj at Udaipur P.S. (P.W.-1) who happens to be the father of the deceased Helon1 Rani Sarkar and the same has been marked as Exhibit P(i) series. It is on the basis of the ejahar police registered Killa P.S. Case No. 2(2)/89 under Sections 498A/304(B) of the I.P.C. As per the first informant as detailed in the F.I.R. so given by P.W.-1 the father of the deceased his daughter at her in-law''s place was done to death in most suspicious and abnormal circumstances within 7 years of her marriage and prior to her death she was even subjected to harassment by her husband and relatives of her husband in connection with the demand of dowry so made. This will not be out of place to mention that the accused/Appellants facing trial are no one else but the husband, husband''s parents and husband''s elder brother of the deceased. The informant has given the details with regard to the date of marriage of Helon Rani Sarkar with Prabir Sarkar on of the sons of Sudhangshu Sarkar in the month of Agrahayana 1394 B.S. though marriage was initially settled with Manik Sarkar, the elder son of Sri Sudhangshu Sarkar, details are also given with regard to subsequent dowry demand so made, Helon Rani Sarkar fell sick being not attended at her in-law''s place and when on the alleged date of occurrence Helon Rani Sarkar was taken back at her in-law''s place by the father-informant accompanied with one of his nephews, in his presence Helon Rani Sarkar was so put to harassment which was so much embarrassing when once again on that fateful night of 13.2.89 in her presence such dowry demand was so made and when the informant was having meal with accused/Appellant Manik Sarkar at about 22 hours on the same night Helon Rani Sarkar''s dead body was so found in the back side of the hut of Sudhangshu Sarkar, the father-in-law of the deceased in a most suspicious circumstances having injuries blood coming out from mouth and mostral and even gamaxxin powder found nearby. After completion of the investigation it further transpires that the charge-sheet was so submitted on 11.12.90 against the accused/Appellants on the basis of which cognizance of offence was so taken in G.R. Case No. 35/89. The charge was so framed against the accused/Appellants u/s 304(B) of the I.P.C. and they were committed to the court of sessions as to face the trial. In the course of trial it further transpires that as many as 22 witnesses were so examined on behalf of the prosecution and two witnesses on behalf of the defence. Taking into consideration the claim and counter claim so put by the prosecution and the defence side, also after evaluating the evidence so available on record oral and documentary, the learned Addl. Sessions Judge came to the conclusion with regard to the prosecution establishing the guilt of the accused/Appellants of their committing offence coming under the purview of Section 304(B) of the IPC and thus by the impugned judgment under challenge convicted all the above named 4 accused/Appellants u/s 304(B) of the IPC and sentenced them to under go R.I. for life. Hence this criminal appeal.

Heard Mr. A.K. Bhowmick, learned Sr. Counsel appearing for the Appellants.

It is submitted by the learned Sr. counsel Mr. Bhowmick representing the Appellants that impugned judgment of conviction and sentence so passed rather are unjust, materially irregular and thus liable to be set aside mainly on the ground that there was total non appreciation of the evidence on record and that the learned Addl. Sessions Judge has thus arrived at a wrong and erroneous findings causing great injustice to the Appellants. Firstly it is pointed out in support of this contention that there is undue delay in reporting the matter because for the occurrence taking place on 13.2.89 the matter is so reported by giving FIR by P.W.-l the first informant next day without satisfactory explanation. Secondly it is pointed out that as per the prosecution case, the informant along with the nephew Dipak Das had accompanied Helon Rani Sarkar at her in-laws place on 13.2.89 when as per the first informant once again the demand for the dowry of articles was so made in their presence and that Helon Rani Sarkar was put to embarrassment/harassment and soon thereafter her dead body was recovered from the back portion of the house of the accused/Appellants in an injured condition and in such circumstances, Dipak Das can very well be said to be the competent witness or either an eye witness to such conversation and harassment so being put on the lady on 13.2.89. But surprisingly enough from prosecution side this witness has not been examined. It is also pointed out mat on no account it can be said that there was any dowry demand even the lawful marriage of Helon Rani Sarkar with Prabir Sarkar one of the accused/Appellants is challenged and the witnesses so examined on the point of marriage/dowry demand/cruelty/harassment are the interested witnesses whose evidence would not have been relied upon. In this memo of appeal one ground is also taken that since on the alleged day of marriage both the boy and girl were minor even if any ceremony took place under the provisions of Hindu Marriage Act, 1955, it could have no legal force. The marriage between Helon Rani Sarkar and Prabir Sarkar being thus not proved up to the hilt by the prosecution. There was thus no question of the accused/Appellants committing any offence coming under the purview of dowry death. Thirdly, it is also pointed out that the accused/Appellants can also not be held any way guilty of their committing any offence under the purview of Section 306 of the IPC because a person cannot be convicted u/s 306 for abetting the commission of suicide unless it is so being proved that the person had committed suicide. In support of this contention Mr. Bhowmick learned Sr. counsel has referred to a reported case Wazir Chand and Another Vs. State of Haryana, By referring to this reported case, it is pointed out that proof of deceased committing suicide is a condition precedent for convicting any one u/s 306 of the IPC. As regards the definition of cruelty and harassment so incorporated u/s 498-A of the IPC, it is pointed out that within the said four-walls of the said definition and in the background of the facts and circumstances of this case, on no account it can also be said with regard to the lady Helon Rani Sarkar at any time subjected to cruelty or harassment in connection with the dowry demand. Casually it is also referred that good number of P.Ws such as P.Ws 3, 4, 9 and 18 are tendered on behalf of the prosecution as they were not going to support the prosecution story. P.W-2 is declared hostile and P.Ws 12,13 and 17 are formal witnesses. It is further submitted that while going through the oral evidence of the material prosecution witnesses it will transpire that P. W-1 happens to be the father of the deceased, P.W.-16 mother of the deceased and they are interested witnesses being the father and mother and their evidence would have been accepted with great caution which has not been done. Even on the point of marriage and dowry demand, it is pointed out that though good number of witnesses are produced from prosecution side but on scrutiny they cannot be found trustworthy and their evidence would not have been relied upon. It is further averred that uncorroborated story with regard to dowry demand had been so put coming from the mouth of some of the prosecution witnesses but they have given different stories and have also not well stood the test of cross-examination which was thus unsafe to be relied upon that too such oral evidence coming from the mouth of interested witnesses, oral evidence of D.Ws rather would have been accepted. Plea is also taken that the statement of accused/Appellants were not so strictly recorded as per the provisions so contained u/s 313 of the Code of Criminal Procedure which has thus caused great prejudice to the accused/Appellant. The prosecution witnesses, it is also pointed out by Mr. Bhowmick learned Sr. counsel representing the Appellants have also failed to explain some of the incriminating circumstances which might have created strong suspicion but that cannot lead to the only conclusion that the accused/Appellants has committed the offence. In the instant case, true it is that the dead body of Helon Rani Sarkar was so found having some injury marks but that in itself was not sufficient as to held the accused/Appellants guilty of committing offence for which they were convicted and in support of this contention Mr. Bhowmick has relied upon a reported case in 1997 (3) SCC 26 State of Maharashtra v. Ashok Sotelal Sukla. Might be, as submitted, Helon Rani Sarkar committed suicide which is also not proved in course of trial and since the prosecution has failed to substantiate that deceased out of frustration and harassment so put committed suicide so given by the accused/Appellants, no conviction u/s 304(B) or u/s 306/498A of the IPC will lie. In this context another reported case has also been banked upon on behalf of the defence i.e. Chanchal Kumari and Others Vs. Union Territory, Chandigarh, Since there is thus no dependable and trustworth withesses coming from prosecution side even much contradictions so cropping up in their cross-examination, it is a fit case in which judgment of conviction and sentence so passed which are under challenge be thus set aside.

Mr. S Das, learned P.P. representing the State is also heard at length, Mr. Das submits that there is nothing wrong in the impugned judgment of conviction under challenge, the prosecution has established the guilt of the accused/Appellants up to the hilt and they have thus rightly been convicted u/s 304(B) of the IPC and sentenced to undergo R.I. for life. As regards the marriage of Helon Rani Sarkar, taking place with Prabir Sarkar one of the accused/Appellants, that has been proved beyond reasonable doubt and on the point of marriage itself reference is made to the depositions of P.W1, PW.-5, P.W-6, P.W-7, P.W-8, P.W-10 and P.W-11. It is further pointed out by the learned P.P. that on this point they have also well stood the test of cross-examination. On the point of harassment and dowry demand, the learned P.P. has referred to the depositions of P.W-1, P.W-16 with that of P.Ws 10 and P.W-7. By referring to the sequence of events taking place, the learned P.P. has submitted that there was dowry demand just after marriage coming from the members of the family of the deceased inlaw''s place. Even circumstances are shown with regard to her being neglected when she fell ill and she was admitted in hospital for sometime between the period 8.12.88 to 14.12.88 when none of the members from in-law''s place cared to attend her which sufficiently reflects the strained relation which was so going on and also there is evidence to show that prior to the occurrence on 13.2.89 also there was dowry demand and Helon Rani Sarkar even was put to harassment when within an hour or so her dead body was so recovered from the house of the accused/Appellants lying in a hut belonging to the accused persons in the same homestead compound. Since no probable explanation is given by the defence side as to how Helon Rani Sarkar''s dead body was discovered from their house and in the present circumstance when there is overwhelming evidence to prove that there was valid marriage between Helon Rani Sarkar and Prabir Sarkar and also that such death taking place within 7 years of the marriage and that there was reminder for meeting dowry demand by giving TV etc. and also when Helon Rani Sarkar also was put to harassment when such demand was made in her presence on 13.2.89 it can safely be said that all the ingredients of Section 304(B) of the IPC have been met with and thus accused/Appellants have rightly been convicted. In support of this contention, the learned P.P. has referred to a reported case Prem Singh Vs. State of Haryana, - if all other ingredients of Section 304(B) are established and if unnatural death of the lady has taken place within 7 years of the marriage and that too at her in-law''s place according to the learned P.P. nothing is left as to prove the guilt of the accused/Appellants in such circumstance. He has also referred to a reported case in Smt Shanti and Another Vs. State of Haryana, in support of this contention. As regards the delay in reporting the matter by P.W-1, it is pointed out that it is because of the U/D entry on the basis of G/D entry so made, and the police agency being found in action, the P.W-1 did not straightaway rush to the police station but when on preliminary interrogation the police found the U/D entry so made to be suspicious, it was the duty of the police to take it proper as to take ejahar of the deceased''s father P.W-1 and at the earliest moment the details with regard to occurrence taking place was so given can well be said to be satisfactory explanation for the delay in giving the ejahar which has rightly been accepted by the learned court below. Thus it is pointed if there is an unnatural death taking place and the evidence of dowry demand and cruelty/harassment on the lady is proved and that the death takes place within 7 years of the marriage and marriage also being proved, the presumption under the provisions of Section 113(B) of the Indian Evidence Act can well be taken with regard to the accused/Appellants committed offence coming under the purview of Section 304(B) of the IPC. When satisfactory explanation so comes forward for not reporting the matter in time, the learned P.P. submits that such delay on no count can be fatal to the prosecution case as also held in State of West Bengal Vs. Orilal Jaiswal and another, The learned P.P. has also referred to the evidence of P.W-14 who is the Doctor who conducted the postmortem examination on 15.2.89. It is pointed out that the Doctor has given the details of the injuries so found on the person of the deceased, the report so obtained in this case by Central Forensic Laboratory is also referred which as submitted supported the prosecution case with that of inquest report and the post mortem so proved and marked as exhibits. In such circumstances, hence the prayer is that the impugned judgment of conviction and sentence so passed thus do not require any interference. Lastly it is pointed out that rightly the deposition of Prabir Sarkar one of the accused/Appellants examined as D.W-1 was not accepted by the learned court below. It is pointed out that at one occasion this D.W. had disclaimed the marriage with Helon Rani Sarkar but in the cross-examination he is specific in saying that she died in their house and that at that time P.W-1 father of the deceased was so present at their house which completely supported the prosecution version and so was the case with D.W-2''s stand which was rightly not taken into consideration who are produced on behalf of the defence as to establish that Helon Rani Sarkar was never ill treated.

After hearing the learned Counsel of both sides, we have carefully gone through the Lower Court''s records. On the point of marriage so taking place in between Helon Rani Sarkar (since deceased) with that of Prabir Sarkar one of the accused/Appellants, we find that the witnesses so produced i.e. P.W-1, P.W-5, P.W-6, P.W-7, P.W-8, P.W-10, P.W-11 and P.W-16 can well be said to be trustworthy witnesses. They have well stood the test of cross examination. The discrepancies so cropping up here and there are minor and thus the prosecution in course of the trial has established this point beyond all reasonable doubts. As regards the death of Helon Rani Sarkar taking place in the night of 13.2.89 as admitted which has thus taken place within a period of 7 years from the date of wedlock; the year and month of Wedlock of Helon Rani Sarkar and the accused/Appellant Prabir Sarkar so coming from the mouth of P.Ws. On the point of harassment when the dowry demand was so made, the prosecution in course of trial has examined P.W.-l, P.W-16 who are the parents of the deceased with that of P.W-7 particularly also P.W.-10. By scrutiny of the evidence of these witnesses, it transpires that there was a dowry demand and even Helon Rani Sarkar also being neglected and no care was so taken at her in-law''s place and she thus been put to harassment. The connotation of the word harassment is defined in Explanation (b) of Section 498A explanation (b) of the IPC. Not only this, rather even soon before her death she was subjected to harassment and in the instant case on 13.2.89 it is when in her presence the members of the family of the husband which included all the accused/Appellants started reminding the delivery of the demand so made such as T.V. etc.-lady being put to great harassment and was so embarrassing for her. Harassment also includes coercing to a woman by any person related to her to meet any unlawful demand for any property or valuable security is on account of failure by her or any person related to her to meet such demand. In this background it can well be said that in the instant case that soon before her death, Helon Rani Sarkar was subjected to harassment at her in-laws house on 13.2.89 in the night when her father P.W-1 was so humiliated for not meeting the dowry demand so made earlier. Over and above this aspect, we have also carefully gone through the circumstances and the consequence of events under which the death of Helon Rani Sarkar took place. That the occurrence has taken place in one of the portion of the homestead dwelling house of the accused/Appellants and admittedly it was not a natural death rather the death had taken place in abnormal circumstance and bodily injuries were so also found on her person. Needless to give details of the postmortem report being proved by the P.W-14, we find that on the person of the deceased following external injuries were found:

(1) contusion irregular in share 2" x 3" on the 3rd and 4th coastal cartilages 1 1/4" to the right of mid line;

2) contusion oval in share 2 1/2" x 1 1/2" along the left 2nd coastal cartilages;

3) contusion irregular in shape 1" x 1/2" over the centre of chin.

There was clotted blood present in both nostrils and cheeks. Ligature mark slightly depressed from the surface starting from middle of left lateral border of neck passing horizontally around the anterior, right side and posterior aspect of neck failing 1" short of mid line. The ligature mark was 9" long and 1/3 " broad everywhere except the anterior central 2" over thyroid where it was 3/4th" broad. No ligature knot mark was seen. On exploration extravation of blood subcutaneous tissue and muscles was seen. Irregular scattered abrasions along the ligature mark were present all along.

According to the Medical Officer the cause of death was due to cardiorespiratory failure due to as physics due to airway obstruction by strangulation (subject to modification after report of the chemical analysis). As regards the report of the Central Forensic Laboratory which is so also proved when the material was so sent, it transpires that the Director-Cum-Chemical Examiner to the Government of India Central Forensic Laboratory, Calcutta had found "No poison including gammaxene could be detected in the limited amount of the contents of the exhibits 17876A to 17876 C. The glass bottle marked was 17876-A containing a piece of solid material with liquid was stated to be one cut piece of ''Liver'' immersed in fluid, the glass bottle marked as 17876 B contained a piece of solid material with liquid was stated to be one cut piece of ''Kidney'' immersed with fluid, the glass bottle marked as 17876 C contained a piece of solid material with some solid particles with liquid were stated to be material with some ''Stomach'' contents and portion of ''Stomach'' immersed in fluid. The polythene packet marked as 17876 D contained some white powder in which gammaxene constituent was so found that being poisonous in nature. This also puts a sign of reasonable doubt when perhaps an attempt so made on defence side to advance the story with regard to the lady committing suicide.

This will not be out of place to mention that in a case when the allegation is against the committing of an offence coming under the purview of Section 304(B) of the IPC, the mischief of provisions of Section 113(B) of the Indian Evidence Act will come in force. The said provisions of Section 113(B) of the Indian Evidence Act run as under:

113 (B) Presumption as to dowry

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 has caused the dowry death.

Explanation for the purpose of this Section ''dowry death'' shall have the same meaning as in Section 304(B) of the IPC.

For ready reference Section 304(B) of the IPC is thus quoted below:

304-B Dowry Death

Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within 7 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.

Explanation. For the purpose of this subsection ''dowry'' shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). u/s 304-B for death a person committing dowry shall be punished with imprisonment for a term which be not less than 7 years or which may extend to imprisonment for life.

In this background, now once again re-evaluating the evidence so available in the record, it transpires that the prosecution in connection with this case has thus succeeded to establish all the ingredients of Section 304(B) of the IPC, the death of Helon Rani Sarkar in the instant case had taken place at her in-laws place in a most abnormal and suspicious circumstance; that on her dead body even external injuries were so found. As regards the legal marriage of Helon Rani Sarkar (since deceased) with Prabir Sarkar one of the accused/Appellants was proved by the prosecution beyond reasonable doubts and the other accused/Appellants happen to be no one else but the parents, elder brother of the husband of deceased, admittedly the death has taken place within 7 years of her marriage. There is also evidence to show that soon before her death she was subjected to harassment by her husband and other relatives of her husband i.e. Manik Sarkar, Sudhangshu Sarkar and Sabita Sarkar when on that very night i.e. 13.2.89 once again there was reminder for the fulfilment of the dowry demand so made to P.W-1 - the father of the deceased in presence of the lady (Helon Rani Sarkar) which had thus put her in very embarrassing position and it was the case thus she was subjected to harassment. When all these ingredients of Section 304(B) of the IPC are so fulfilled and sufficient evidence is so adduced for accepting the same in favour of the prosecution, in such circumstances, naturally under the provisions of Section 113(B) of the Indian Evidence Act, it can very well be presumed that this dowry death is so committed by no one else but by the husband and relatives involved and harassment was so put on the lady and as a result of which on the fateful night her dead body was so found having external injury from the very dwelling house of the accused/Appellants because of such demand so made also on the same day. Once again making such dowry demand on the date of occurrence may not be stated to be stale enough not to disturb the mental equilibrium of Helon Rani Sarkar, can rather well be treated in the light that the lady being subjected to harassment soon before her death and it is for this circumstance that the Legislature has introduced 113-B of the Evidence Act by permitting presumption to be raised in such circumstances if the other ingredients of Section 304B of the IPC are proved as to hold the culprit guilty of committing such offence. By looking into the questioning so framed, while taking the statements of the accused/Appellants u/s 313 of Code of Criminal Procedure, we find that accused/Appellants were confronted with all the evidence so pouring in course of trial and thus in our opinion no prejudice was caused to them. We also hold that in the background of the facts and circumstances, the learned court below was also justified in disbelieving the story so propounded by the 2 D.Ws examined on behalf of the defence.

Consequently, thus finding that all ingredients of Section 304(B) of the IPC are met by the prosecution in course of trial in the background of the facts and circumstances of the instant case as detailed above, rightly under the provisions of Section 113(B) of the Indian Evidence Act though there was no direct evidence of the accused/Appellants inflicting injuries on the person of Helon Rani Sarkar but it can safely be presumed of their involvement of causing dowry death which is in our opinion has been fully proved by the prosecution and because of our arriving at this conclusion, the impugned judgment of conviction so recorded by the learned court below convicting the accused/Appellants u/s 304(B) of the IPC thus in our opinion does not require any interference which is so hereby upheld.

Mr. A.K. Bhowmick, learned Counsel for the accused/Appellants in course of his argument had also made a submission that taking the worst view even if the accused Appellants are found guilty of committing offence coming under the purview of Section 304(B) of the IPC which is though not admitted but in such circumstances, after hearing on the point of sentence the learned court below would not have awarded the maximum punishment i.e. imprisonment for life. By referring to the provisions of Section 304(B) of the IPC it is once again pointed out that for committing the dowry death punishment for imprisonment is not less than 7 years but which may be extended to imprisonment for life. The learned court below in the instant case has awarded life sentence.

In this connection it is pointed out by Mr. Bhowmick that extreme punishment of life imprisonment is to be awarded in rare cases and in support of this contention a reference is also made to a reported case Hem Chand Vs. State of Haryana, and particularly its Head Note ''B'' which is on the point of sentence in connection with offence committed u/s 304(B) of the IPC has been referred in paragraph 7 and 8 of the judgment. The learned P.P. is also heard on this point.

In the background of the facts and circumstances of the instant case also looking into reported case so cited in Hem Chand Vs. State of Haryana, the judgment of conviction so passed by the learned court below convicting the accused/Appellants u/s 304(B) of the IPC is so upheld by us. As regards the sentence so imposed which is life imprisonment of all the accused/Appellants, in our considered opinion, it will meet the ends of justice if instead of the accused/Appellants being directed to undergo rigorous imprisonment for life, the same is modified to the extent detailed below. Taking that view as regards the sentence so awarded by the learned Court below is modified and instead of life imprisonment so imposed, they are directed to undergo R.I. for 8 years and the sentence to that extent is modified. The period so undergone by the accused/Appellants during the course of trial and also during the pendency of this criminal appeal shall be set off under the provisions of Section 428 of the Code of Criminal Procedure

This appeal is partly allowed.

It transpires that in course of this criminal appeal so many criminal Misc. cases were so filed such as Misc. Case No. 108/96, Misc. Case No. 135/96, Misc. Case No. 146/96, Misc. Case No. 22/97, Misc. Case No. 42/97, Misc. Case No. 68/97, Misc. Case No. 80/97 and Misc. Case No. 119/98. By perusal of the order so passed in these criminal Misc. cases, Sabita Sarkar was granted privilege of bail vide order dated 22.7.96 in Misc. Case No. 108/96 and Manik Sarkar was granted privilege of bail vide order dated 4.10.96 in Crl. Misc. Case No. 146/96 during the pendency of this criminal Appeal where as the prayer for grant of bail to the rest of the accused/Appellants Sudhangshu Sarkar and Prabir Sarkar were rejected. In that case, because of the conviction so upheld, the two accused/Appellants who are on bail namely Manik Sarkar and Sabita Sarkar, their bail bonds are thus hereby cancelled and they are directed as to surrender at once before the learned Court below as to meet the sentence with rest of the Appellants.

This criminal Appeal is partly allowed. Let the records sent to the Registrar, Agartala Bench.