Prabir Sen vs The State of Tripura

S. Talapatra, J.—This is an appeal under Section 374(2) of the Cr.P.C. by the convict, hereinafter referred to as the appellant, from the judgment dated 05.09.2013 delivered in S.T. 55/2009 by the Sessions Judge, West Tripura, Agartala. By the said judgment dated 05.09.2013 the appellant has been convicted under Sections 304B and 498A of the IPC and sentenced by the order dated 07.09.2013 to suffer rigorous imprisonment for 10 years for committing offence under Section 304B of the IPC and 3 years rigorous imprisonment with fine of Rs. 5,000/- for committing offence punishable under Section 498A of the IPC, with default imprisonment.

The prosecution against the appellant is rooted in the written ejahar filed by one Paltan Roy Nandi, PW9, disclosing that his sister, namely, Rita Roy Nandi was given in marriage with the appellant 18 months before the day of filing the ejahar. They fulfilled the demands of the appellant''s family at the time of wedding but immediately after the marriage his sister was subjected to torture by the inmates of the appellant''s family but his sister bore such torture silently. On 01.12.2007, in the early part of the day at about 9 O''clock the informant got the information from a neighbour of his sister''s matrimonial home that his sister''s husband, father-in-law, mother-in-law and brother-in-laws had set fire on his sister and she had been taken to GBP Hospital for medical treatment. Based on the said written ejahar (Exhibit-5), Bodhjungnagar PS case No. 35/2007 under Sections 498A/326A of the IPC was registered.

It has transpired from the records that during investigation, the sister of the informant died on 07.12.2007 at 6.00 p.m. in the GBP Hospital. At the instance of the Investigating Officer the concerned Magistrate allowed to add Section 302 of the IPC for the purpose of investigation. Having completed the investigation, the police submitted the final report charge sheeting the appellant, Pramod Ranjan Sen & Smt. Jyoti Rani Sen, his parents, under Section 302/498A/34 IPC. The case was committed to the court of the Sessions Judge, West Tripura, Agartala as the offence punishable under Section 302 of the IPC is exclusively triable by the Court of Sessions.

The Sessions Judge initially framed the charge under Section 302 of the IPC against the appellant and under Section 498A read with Section 34 of the IPC against the appellant and his parents on 07.12.2009. The accused persons pleaded innocence and claimed to be tried. It further transpires from the records that the charge framed under Section 302 IPC was altered on 14.12.2012 and against the appellant the charge under Section 304B was framed afresh. Again the appellant pleaded innocence and claimed to be tried.

To substantiate those charges, as stated, the prosecution adduced as many as 22 witnesses including the informant, Sri Paltan Roy Nandi (PW9), Sri Bijan Roy Nandi, another brother of the deceased (P.W. 13), Sri Gopal Roy Nandi, father of the deceased (P.W. 14) and Smt. Kalpana Roy Nandi, mother of the deceased (P.W. 15). The prosecution introduced in the evidence as many as 11 documentary evidence (exhibits 1 to 9) including the post-mortem report (exhibit-2), bed head ticket (exhibit-4), statement of the deceased under Section 161 Cr.P.C. (exhibit-8) and the purported dying declaration (exhibit-9).

For rebutting the evidence as led by the prosecution, the defence did not adduce any evidence but from the cross-examination it has appeared that the defence case is that there was an accidental fire and there was no demand of dowry or torture soon before the death of the deceased.

After recording the prosecution evidence, all the accused persons were examined under Section 313 of the Cr.P.C. when they reiterated their plea of innocence by denying the incriminating materials. The trial court on appreciating the materials on record has returned the finding of conviction against the appellant under Section 304B/498A of the IPC and acquitted the other accused persons on benefit of doubt. By this appeal the said judgment of conviction is challenged.

Mr. Ratan Dutta, learned counsel appearing for the appellant has at the outset submitted that the trial court''s appreciation of the evidence suffers from serious perversity inasmuch as the basic canons of law were given a go by. Mr. Dutta has candidly submitted that the death of the deceased, which has occurred under no normal circumstances, has taken place before completion of seven years of marriage. However, Mr. Dutta, learned counsel has emphatically submitted that the dying declaration does not contain any probative value for completely ignoring the procedure to record the dying declaration to make it reliable by the Court. Mr. Dutta, learned counsel for the appellant has in particular submitted that in the dying declaration recorded by the Magistrate (exhibit-9) there is no certificate or any medical report to show that at the time of recording the dying declaration the dying person was in a sound state of mind to understand the meaning of her statement.

Mr. Dutta has further submitted that for the same reason the statement as recorded by the Investigating Officer under Section 161 of the Cr.P.C. cannot be relied by this Court. Mr. Dutta has laid sufficient emphasis on the aspect of harassment for dowry soon before the death. There is no reliable evidence at all inasmuch as whatever PWs 13, 14 and 15 have stated has either improved in the trial or those were never disclosed in the course of investigation or at the first instance, to the police and as such having regard to their relation and their anxiety to secure the conviction of the appellant, these statements which fall far from being truthful should be discarded and no probative value can be attached to them.

Mr. Dutta, learned counsel has summed up his submission stating that the trial court has applied the presumption of law without any foundation. Unless the basic foundations are laid in the prosecution''s evidence even under Section 113B of the Indian Evidence Act, no presumption of dowry death can be drawn for purpose of convicting the accused.

From the other side, Mr. RC Debnath, learned Addl. PP appearing for the State has fairly submitted that he would not rely on the dying declaration, exhibit-9 or the statement as recorded by the Investigating Officer during investigation, exhibit-8, but he has vehemently argued that the testimonies of PWs 13, 14 and 15 have clearly established that there was serious harassment for dowry soon before the death of the deceased and since there is no dispute or controversy as to the nature of death of the deceased taking place within seven years of marriage, solely on the basis of the oral testimonies of those witnesses, as stated, the conviction as returned by the trial court can be sustained.

For purpose of appreciating the rival contentions as advanced by the learned counsel appearing for the parties, this Court has made a survey of the evidence on record. It appears from the survey that P.W. 1, Sri Haradhan Biswas, PW2, Sri Suman Ghosh, PW3, Smt. Laxmi Majumdar, PW4, Smt. Sahal Rani Biswas, PW5, Smt. Bela Rani Sen, and PW6, Smt. Sarathi Biswas are the witnesses from the neighbourhood of the appellant and they did not utter a single word against the appellant. P.W. 1, Sri Haradhan Biswas is also witness to the seizure of the wearing apparels of the deceased. PW2, Sri Suman Ghosh and PW5, Smt. Bela Rani Sen have categorically stated that the relation between the appellant and the deceased was cordial and peaceful. PW6, Smt. Sarathi Biswas also followed the same suit. PW7, Dr. Ranjit Kr. Das carried out the post mortem examination along with Dr. Pranab Choudhury. He asserted that the cause of death was shock resulting from 70% burn injuries caused by flames. He identified that post mortem examination report as exhibit-2.

PW8, Sri Subrata Singh is a seizure witness of the bed head ticket (exhibit-4). PW9, Sri Paltan Roy Nandi is the informant who lodged the FIR. He has stated that "she reported that she was tormented on demand of a motor bike. My sister reported my parents that she was often harassed and tormented on demand of motor bike. On 01/12/2007 we got information that she was set to fire. We went to G.B. Hospital. At G.B. Hospital we found my sister lying with burn injuries. Almost 80% were burnt. Immediately thereafter, I lodged FIR with O.C., Bodhjungnagar P.S." He has further asserted that "before death my sister narrated the incident to the Magistrate in my presence that her husband set her to fire after pouring kerosene oil." But in the cross-examination he has admitted that no such statement is available in the statement as recorded under Section 161 of the Cr.P.C. that he was present before the Magistrate when his sister told him that her husband set her to fire after pouring kerosene oil. But he asserted that his sister made it before the Magistrate. He has admitted that he did not mention the demand of motor bike in the written ejahar.

P.W. 10, Sri Sudip Kar has stated that the deceased was a distant relation. After receiving the information that she sustained severe burn injuries he visited the hospital but the deceased could not say anything on that day. On the following day when he visited GB Hospital, in their presence she made the statement to the Magistrate. In the same manner, he has also admitted that there is no such statement in the statement recorded under Section 161 of the Cr.P.C. that he was present and heard the deceased stating to the Magistrate that kerosene was poured and she was set ablaze by her husband. But he has admitted that he got the information that the deceased was caught fire in the kitchen near the oven.

P.W. 11, Smt. Kajal Sarkar, the deceased''s elder sister has stated inter alia, that "after a few months she got pregnant. During pregnancy of about 4/5 months once she came to my parents house and reported to my parents that her husband was tormenting and harassing her on demand on a motor bike. Thereafter, she went back. Myself, my mother and some other relatives went to her house at Lalmatia. In the meantime, she and her husband were living in a separate mess. At that time, father of Prabir told us to give a motor cycle to Prabir as demanded by him as otherwise matrimonial relation was going to be sore. We told that there was no such demand at the time of marriage and that we will report about the demand to my parents. Thereafter, we came back and reported everything to my parents." When she was confronted in the cross-examination it was found that no such statement was available in the previous statement as recorded under Section 161 of the Cr.P.C.. However, she has asserted that she made it. Even she declined to vouch whether the deceased made any statement implicating her husband of pouring kerosene and setting her ablaze or not.

P.W. 12, Uttam Majumdar, is the husband of the younger sister of the deceased. He has also reiterated that the deceased, Rita stated to him that she was subjected to cruelty on demand of cash money and motor bike. On 01.12.2007 he got the information that Rita was admitted in the hospital with burn injuries but when he visited the hospital she was not in a position to speak. But his statement that Rita stated to him that there was a demand of money and motor bike did not find place in the statement recorded under Section 161 of the Cr.P.C. but he asserted that he made such statement.

P.W. 13, Bijan Roy Nandi is the unfortunate father of the deceased. He has plainly stated that once he was summoned by the father-in-law of the deceased and he appeared in the matrimonial home of the deceased with his wife and one Narayan Bhowmik of their locality. He has stated in this perspective as follows:

"We inquired as to what had happened and why we were so urgently summoned. Pramode Sen then told me to give a motor bike to Prabir. I told that after marriage I had no such money and I requested them to give me some time. I requested Prabir that I will give motor cycle and not to harass my daughter."

He has also stated that even thereafter he assured the appellant that he would give the motor bike and also sometime paid some money to the appellant. When he was confronted on his statement, he stood by the cross-examination. However, the defence suggested that such statement was entirely incorrect.

P.W. 14, Gopal Roy Nandi is another brother of deceased, Rita. He has stated, inter alia, that he got the information on 01.12.2007 that his sister received serious burn injuries. When he visited the hospital with his mother and sister he found his sister had received about 80% burn injuries. He asserted that, "on our query she could not speak anything on that day. On the following day in presence of a Magistrate she told that her husband set her to fire pouring kerosene on her. Since after marriage, my sister was badly treated in her husband''s house. She was very darling to me and she used to tell me to give a motor bike to my brother-in-law (her husband) as otherwise she will never find peace in her husband''s house. I visited her house on several occasions and on all occasions she told me that she will not be allowed to live if motor bike was not given. When she visited our house she told that she was subjected to harassment by her husband." He has further stated that, "my sister told me on 02/12/2007 before arrival of the Magistrate that on the previous day of the incident she was beaten by her husband and on that day of occurrence in the morning her husband set her to fire after pouring kerosene." But when he was confronted in the cross-examination he has admitted that no such Statement is available in the previous statement recorded under Section 161 of the Cr.P.C. that he was present at the time when the Magistrate recorded the statement but he asserted that he made such statement.

P.W. 15, Smt. Kalpana Roy Nandi whose involvement in the various phases of the demand has been recognized by P.W. 13, and P.W. 14 has stated that "on a month of Falgun we visited the house of Rita while she was carrying pregnancy for ''swad ceremony''. Her husband demanded a motor bike but we could not approve it for want of money. Rita told that she was assaulted and beaten by her husband for motor bike. On the day of Durga Puja before her death she came to my house with her child. Her husband came on the day of Dashami and took her back. Thereafter, Rita did not come to my house. On a day I cannot exactly say the date, we got information that my daughter was admitted in hospital with burn injury. Myself with my son Gopal together went to hospital. Rita told me that her husband set her to fire after pouring kerosene oil. She died after a few days." Her statement gives some indications as to the real state of affairs.

However, in the cross-examination she could not stand by the brunt as put by the defence. She has admitted that there is no statement as to her presence or being stated by the deceased of demand in the previous statement as recorded by the Investigation Officer but she has asserted that she made it. Even the statement that her daughter, since deceased, made a statement to her that her husband, the appellant herein, put kerosene on her person and set her ablaze was admittedly not found in her previous statement as recorded under Section 161 of the Cr.P.C. but she has asserted that she made such statement.

P.W. 16, Arun Biswas did not divulge anything of material importance though he was the seizure witness of the wearing apparels of the deceased but he also could not state properly, the preparation of the seizure list.

P.W. 17, Swapna Majumder is another neighbour of the appellant. Hearing alarm she rushed to the house of the appellant and found many people gathered in that house. She found Rita sitting in the door of her dwelling hut wearing a napkin with burn injuries. People gathered there told that she received burn injuries. She has stated nothing more.

P.W. 18, Narayan Bhowmik, P.W. 19, Sri Chandan Kr. Chakraborty, the Priest either was tendered by the prosecution without examination or stated the material facts which are not in controversy.

PW20, Shanti Bhusan Bhuiyan is the Investigating Officer. He has stated that he gave the requisition for recording of the dying declaration by the Magistrate on 03.12.2007 and he identified the requisition, exhibit-8. He has also stated that he had recorded the statement of the deceased where she had stated that the appellant had quarreled with her, poured kerosene oil on her body and set her ablaze. In the cross-examination, he has admitted that he did not send the wearing apparels as seized for chemical examination to ascertain whether there was presence of kerosene oil or not. He has bluntly stated in the cross-examination as follows:

"I did not record the statement of doctor on 03/12/2007 to show that Rita was capable of making a statement."

He has also admitted that no doctor or any other witness signed the dying declaration.

PW21, Ranjit Debbarma is the Executive Magistrate who recorded the purported dying declaration (exhibit-9). He is also the person who prepared the inquest report (exhibit-10). In the cross-examination he has admitted that he did not put any signature in the statement (exhibit-9). However, he has asserted that the LTI put in the statement was of the deceased.

PW22, Sankar Lal Puakaystha is the Investigating Officer for the final phase of the investigation and he filed the charge sheet under Section 302/498A of the IPC. During his cross-examination he has asserted that the statements which the witnesses claim to have been made before him are not correct and those witnesses did not make any such statement. Thus, the improvements as made were established by the defence.

There is no controversy as to the statement recorded in the surathal report or the statement of the deceased recorded under Section 161 Cr.P.C. or in the dying declaration. Even there is no challenge against the cause of death as recorded in the post mortem report. Thus, there is no difficulty in accepting the cause of death from the burn injuries and hence the death occurred not under normal circumstances within seven years of marriage. Now the pertinent question that is left to be determined by this Court is that whether soon before the death the victim was harassed on demand of dowry or not? If that is proved the sweep of Section 113B of the Evidence Act would be well established by the prosecution and there will be no difficulty in sustaining the conviction as returned by the trial court.

There is no doubt about it that PWs 9, 13, 14, and 15 stand in contrary to what have been stated by PWs 1, 2, 3, 4, 5, 6, 16 and 17. The entire prosecution case, as has been rightly pointed out by Mr. Debnath, is structured on the testimonies of PWs 9, 13, 14 and 15 and their testimonies are to be weighed in the backdrop that no disclosure as to the harassment for dowry has been made in the written ejahar, which is filed at the first instance. From a bare reading of the content of the ejahar what transpires is that there was a disclosure that the appellant and the other inmates committed murder by pouring kerosene on the person of the deceased and setting her ablaze.

Mr. Debnath, learned Addl. PP has discarded the plea that the appellant has committed murder and on the basis of that alone he has made a plain statement before us that he would not rely on the statements as recorded by the Investigating Officer under Section 161 of the Cr.P.C. of the victim and the purported dying declaration, respectively exhibits 8 & 9.

Now we are to evaluate the probative value of the testimonies of PWs 9,13,14 and 15. The statement of P.W. 15, as stated earlier, has indicated the real state of affairs, that after Bijaya Dashami the victim did never come to their house, neither any of them had visited her place. But she has stated that there was a demand for a motor bike but they could not approve it. Even she did not corroborate the statement of P.W. 13 that she visited the matrimonial home of their daughter where there was a demand by the father-in-law of the deceased for a motor bike. The Investigating Officer, PW20 has clearly stated that no such statement was ever made to him.

P.W. 13, is the father of the deceased who has stated that there was a demand of motor bike but nothing of that sort has been found in the statement and the Investigating Officer has also categorically stated that the statements made by the witnesses did not give any detail when the harassment did actually take place. His statement as regards the demand of motor bike was found to be made for the first time in the trial and the Investigating Officer has categorically stated that those statements were never made to him.

P.W. 14, another brother of the deceased, has also stated that there was a demand for a motor bike and he came to know of such demand from his sister and whenever the victim visited their house she told that she was subjected to harassment but P.W. 15 again did not support him also in this regard. That apart, such statement was made for the first time in the Court which was not acceded to by the Investigating Officer.

PW9, the informant has followed the same suit. His material statement is found to be improved in the trial and the Investigating Officer has categorically stated that no such statement was ever made to him.

PWs 10 and 11 have made some statement in this regard and their statement was also made for the first time in the trial and the Investigating Officer has categorically stated that no such statement in this regard as to the demand of motor bike or harassment was ever made to him.

Not based on the frank admission made by Mr. Debnath, learned Addl. PP alone, otherwise also we are of the view that neither the statement of the victim recorded under Section 161 Cr.P.C. by the Investigating Officer (exhibit-8) and the purported dying declaration as recorded by the Executive Magistrate (exhibit-9) cannot be treated as the dying declaration for the very reason that there is no certificate or material evidence to show that at those relevant points of time the victim was in a sound state of mind to make such statement. To bring statements within the sweep of Section 32(1) of the Evidence Act, the law has been well developed that those must follow certain strict procedure. At least there should be some medical evidence, either directly or indirectly, that the maker of the statement was in the sound state of mind to make such statement. Sound state of mind does not connote the sound physical condition it is the state of sound mental condition that she is in such a state to make an intelligible statement.

After scrutiny of the entire evidence we do not find any such evidence to gather that the victim, the maker of the statement, was in such a state of mind that her statement as purportedly recorded by PW 20 and PW 21 can be relied by this Court. Thus, we are of the view that the prosecution has failed to prove the basic requirement to hold the charge established under Section 304B of the IPC or under Section 498A of the IPC. There is no evidence to show that no sooner before her death she was subjected to harassment on demand of dowry. The unlawful demand, whether or not it is ''dowry'', has not been established beyond the standard of reasonable doubt inasmuch as at the first instance the victim''s full blooded brother did not disclose that there was a matrimonial discord and they had reasons to believe that that death was the outcome of that discord. None of that sort is available in the First Information Report. Whatever attributed incriminatingly against the appellant or his inmates have come out only in the trial as even the Investigating Officer did not support that they made such statement to him or to any other police officer.

When the close relatives who might have genuine inclination out of anguish to secure conviction of the person who was supposed to preserve their dear one''s life, there is all probability that the person would be sought to be convicted. In catena of decisions the Apex Court has held that while sifting their testimonies a cautious approach should be taken and the grain should strictly be separated from the chaff. On applying that principle and from the fact that all such incriminating statements were made first time in the trial, we are unable to accept those statements as reliable as to return & sustain the finding of conviction.

Having situated thus the benefit must go to the appellant and accordingly the appellant is acquitted from the charge on benefit of doubt.

In the result, the impugned judgment of conviction dated 05.09.2013 and order of sentence dated 07.09.2013 are set aside and quashed. The appeal stands allowed.

It is reported to us that the appellant is still in jail. He shall be released forthwith, if not wanted in any other case.

Send down the LCR.