RAMA KANTA NATH vs STATE OF ASSAM

1.Heard Mr. S.K. Jain, learned counsel for the appellant and Ms. S. Jahan, learned Addl. PP, Assam.

This appeal is directed against the judgment and order dated 08.10.2013 passed by the learned Addl. Sessions Judge, Goalpara in Sessions Case

No.257/2012 under Section 304(B) IPC. By the said judgment, the learned Addl. Sessions Judge convicted the accused/appellant under section 304(B)

IPC and sentenced him to Rigorous imprisonment for 7 (seven) years.

The prosecution case in brief was that the victim (PW-4) married the appellant Rama Kanta Nath on 28.02.2008 and after marriage they were

pulling on well as husband and wife for about 2/3 months. Though the parents of the victim paid Rs.75,000/- along with other dowry articles on her

marriage, after 2/3 months of the marriage, the accused demanded Rs.50,000/- from the victim. As the parents of the victim could not meet such

demand, the victim was subjected to torture. On 08.12.2008, the appellant assaulted the victim and drove her out from the matrimonial home and

threatened her not to come back without Rs.50,000/-. As the victim came back without the money, she was again subjected to torture by the

appellant. Ultimately, on 23.12.2008 the present appellant and the co-accused Damayanti Nath (since acquitted), forcibly administered poison to the

victim and consequently, she died on the next day i.e. 24.12.2008. An FIR was lodged by the father of the victim, PW-1 against the present appellant

and one Damayanti Nath. On the basis of the said FIR, police registered a case and after usual investigation submitted charge-sheet against the

present appellant and exonerated the co-accused Damayanti Nath. The informant PW-1 raised objection against the final report in respect of

Damayanti Nath and eventually, process was issued against the co-accused Damayanti Nath.

The offence against the accused persons being exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions and

both the accused persons stood trial for offence under Section 304(B) IPC. In the course of trial, the prosecution examined 7 (seven) witnesses to

substantiate the charge against the accused persons. On appreciation of evidence, learned trial Court acquitted the co-accused Damayanti Nath,

however, convicted the present appellant under Section 304(B) IPC and awarded sentence as indicated above.

I have considered the submissions made by the learned counsel for the appellant and the learned Addl. PP, Assam as well as the evidence and

materials brought on record.

From the impugned judgment, it appears that the learned trial Court basically relying on the testimony of PW-1, PW-3 & PW-4 as well as the dying

declaration of the victim, recorded the conviction of the accused/appellant under Section 304(B) IPC. Since the prosecution case hinges on the oral

testimony of the PW-1, PW-3 and PW-4, let me at the outset go through the oral testimony of these vital witnesses.

PW-1, the informant stated in his evidence that before marriage, he paid Rs.50,000/- to the accused along with the ornaments, furniture and other

dowry articles. The accused again demanded Rs.50,000/- from him and asked him to handover the money to the victim. As he expressed his inability

to pay the money, the victim was tortured by the accused persons and being unable to tolerate the torture meted out to her, she consumed poison. He

further stated that having come to know about the occurrence on 23.12.2008, he immediately rushed to the place of occurrence with one Pradip Nath

on his motor cycle and found the victim lying in an unconscious condition. According to him, PW-2 & PW-3 also followed him to the place of

occurrence. PW-1 further stated that the victim was immediately shifted to hospital and after rendering treatment, when she regained her senses, on

being asked by PW-1, the victim told that because of non fulfillment of the demand of Rs.50,000/- the accused tortured her and as such, she

consumed poison.

PW-4, the son of PW-1 stated, that having come to know about the occurrence at about 8.00 pm on 23.12.2008, his father went to the house of the

victim with PW-3 on his motor cycle and he also followed them. This witness also stated that on being asked by him the victim told that for not giving

the demanded money, she was assaulted on the previous day of the occurrence and being unable to bear the torture, she consumed poison.

PW-3 stated that knowing about the occurrence he went there and found the victim in hospital. This witness also stated that on being asked, the

victim told that as her father could not pay Rs.50,000/-, she was tortured. However, he did not tell as to what sort of torture was meted out to her.

According to him, the victim also told that being unable to bear the torture she consumed poison.

PW-6, the doctor, who conducted the post-mortem examination of the victim, stated that during examination no injury was found on the body of

the victim. According to the doctor, viscera was preserved which was sent for forensic examination and as such, his opinion with regard to the cause

of death was kept pending until receipt of the chemical analysis report. From the cross-examination of these three vital witnesses i.e. PW-1, PW-3 &

PW-4 and the testimony of PW-7, the Investigating Officer, it appears that PW-1 did not tell the police regarding payment of Rs.50,000/- before the

marriage. PW-4 did not state before the police regarding the victim disclosing before him that she was tortured by the accused on the previous day of

the occurrence. PW-3 also did not state before police regarding the victim telling him about the occurrence.

A dispassionate scrutiny of the oral testimony of PW-1, PW-3 & PW-4 transpires that although these three witnesses have stated that the victim

made a dying declaration before them, the oral dying declaration deposed to by these three witnesses appears to be contradictory. PW-1 stood

contradicted with his previous statement with regard to oral dying declaration of the victim, inasmuch as, in his statement recorded by the Magistrate

which was proved as Exhibit-2, as well as in the FIR, PW-1 stated that on being asked by him, the victim told that both the accused persons forcibly

administered poison to her. Therefore, the statement of PW-1, the informant as to the dying declaration, appears to be self contradictory and mutually

destructive, inasmuch as, according to his previous statement the victim told that both the accused persons forcibly administered poison to her,

whereas, deposing in the Court he has given a different statement and stated that the victim herself consumed poison being unable to bear the torture.

The self contradictory and mutually destructive versions of the PW-1, PW-3 and PW-4 as regards oral dying declaration rendered testimony of these

witnesses as to the oral dying declaration totally unreliable and unworthy of trust and as such, no credibility can be attached to the oral dying

declaration of the victim as deposed by the PW-1, PW-3 and PW-4.

Evidently the testimony of PW-3 & PW-4 as to the torture and also the demand of money were based on the so called dying declaration. As

according to them, when they met the victim in the hospital, the victim told about demand of money and torture. The oral dying declaration as deposed

by PW-1, PW-3 & PW-4, is found to be totally unreliable and unworthy of credence because of the infirmities as indicated above and as such, the

prosecution is left with the sole testimony of the PW-1, the informant and father of the victim, so far the allegation of demand of money and the

torture is concerned.

In the FIR lodged by PW-1, it was stated that at the time of marriage, Rs.75,000/- was given and till 2-3 months of the marriage, there was no

problem and his daughter was pulling on well with her husband. The allegation was that subsequently, Rs.50,000/- was demanded from him by the

accused and he was asked to pay the money to the victim. Whereas, deposing in Court he has given a different version and stated that Rs.50,000/-

was paid before marriage. Thus, the statement of PW-1 regarding payment of money at the time of marriage appears to be totally unreliable inasmuch

as, in his previous statement in the FIR he stated that he paid Rs.75,000/- whereas, while deposing in Court he stated that he paid Rs.50,00/-. As

regards the subsequent demand of Rs.50,000/- also the statement of PW-1, appears to be inconsistent and contradictory with his previous statement

made in the FIR. It was stated in the FIR that the accused demanded Rs.50,000/- from his daughter and his daughter informed him regarding such

demand and when he expressed his inability to pay the money to his daughter, the accused started to torture her. While deposing in Court he has given

different version and stated that the accused directly demanded money from him and asked him to handover the money to the victim. This being the

position, the testimony of PW-1 with regards to the demand of money also does not appears to be reliable. The FIR was lodged by PW-1 initially

against the present appellant and one Damayanti Nath bringing specific allegations, that both of them forcibly administered poison to the victim,

however, subsequently he had changed his versions and stated that the victim herself consumed the poison. So far the allegation of torture is

concerned, the evidence of PW-1 appears to be vague and omnibus in nature, as he only stated that the accused tortured his daughter. Evidently, the

two accused persons were tried, though one of them was acquitted by the learned trial Court. It is pertinent to mention that police did not submit

charge-sheet against the co-accused Damayanti Nath, but, upon insistence of PW-1, the Court issued summons against Damayanti Nath, who also

stood trial. However, learned trial court acquitted her. When the two accused persons were standing trial and the allegation was not specific, as to

which accused tortured the victim, merely on the basis of a bald and omnibus statement that victim was tortured without any specific allegation as

regards the nature of torture or as to which of the accused tortured the victim, the Court could not take a presumption against the appellant on surmise

and conjecture. What therefore transpires is that the allegation as regards the demand of dowry and harassment or torture as deposed by PW-1 were

not at all credible and worthy of placing reliance.

As per the medical report and the evidence of the doctor, the cause of death could not be ascertained. The evidence of PW-7 revealed that as per

the FSL report, no poison was found during forensic examination. Therefore, the FSL report ruled out the story of the consumption of poison by the

victim. Evidently, no injury was detected on the body of the victim as deposed by PW-6 (doctor). The testimony of PW-2 & PW-5 were of no

consequence as they only stated to have known about the death of the victim later on.

What therefore transpires from the entire evidence is that the cause of death of the victim remained undisclosed inasmuch as, though allegation of

consumption of poison was brought, such allegation was ruled out by the FSL report. Therefore, it is difficult to presume that the death was under any

unnatural circumstance, inasmuch as, no specific evidence could be brought on record to show that the victim died either by sustaining burn injury or

under any unnatural circumstances. The allegation of demand of money is also found to have fallen flat.

Section 304B IPC defines the dowry death as under:

“(1) Where the death of a women is caused by any burns of bodily injury or occurs otherwise than under normal circumstances within seven years

of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband

for, or in connection with, any demand for dowry, such death shall be called “dowry deathâ€, and such husband or relative shall be deemed to have

caused her death.

A plain reading of the definition of dowry death makes it clear that in order to bring home a charge under Section 304 B IPC, the prosecution

needs to prove the following ingredients:

Death occurred to a married women within 7 (seven) years of marriage,

Death was caused by burn or bodily injury or occurred otherwise than under normal circumstances,

The husband or relative of her husband demanded dowry,

The victim was subjected to cruelty and harassment by the husband in connection with such demand of dowry,

Such harassment or cruelty was meted out to her before soon before the death.

In the instant case, the entire evidence as discussed herein above, would show that the prosecution has not been able to prove the essential

ingredients of offence under Section 304-B IPC, except that the death of the victim within seven years of marriage. In order to establish a charge in a

criminal case, prosecution has to prove each and every ingredients of the offence beyond reasonable doubt. The evidence discussed herein before,

speaks loud and clear, that prosecution has failed to bring home the charge under Section 304-B IPC against the appellant beyond reasonable doubt

and as such, the impugned judgment of conviction and sentence cannot be sustained. Accordingly, the appeal is allowed and conviction and sentence

of the accused/appellant is set-aside.

The accused be released forthwith if not required in any other case.

Send down the LCR.