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2005 Supreme(Cal) 477
High Court Of Calcutta
Debiprasad Sengupta, Arun Kumar Bhattacharya
SUBHASISH SINGHA - Appellant
Versus
STATE OF WEST BENGAL - Respondent
C. R. A. 487 Of 2001
Decided On : 07/29/2005
MD.KAZI SAFIULLA, SEKHAR BASU, SOUVIK MITRA, TAPAS KR.GHOSH
Headnote:
CRIMINAL LAW - Dowry death - Cruelty - Harassment - Ingredients - Evidence - Appreciation - Dying declaration - Admissibility - Section 304B IPC - Section 498A IPC - Section 161 CrPC - Section 164 CrPC.
Fact of the Case:
The deceased, Smriti, died on account of burn injuries sustained by her in her matrimonial home. The prosecution alleged that the accused persons, being her father-in-law, mother-in-law, and grandmother-in-law, subjected her to cruelty and harassment over the issue of demand for dowry, which led to her death. The accused persons denied the allegations and claimed that the deceased died due to bursting of a stove.
Finding of the Court:
The Court found that there was no cogent and reliable evidence on record to show that the deceased was subjected to cruelty or harassment by the accused persons over the issue of demand for dowry soon before her death or at any time after her marriage. The Court further found that the cruelty or harassment was meted out to the deceased by her grandmother-in-law, who committed her murder by pouring kerosene oil followed by setting fire on her person and no other member of the family can be accused for the same.
Issues: 1. Whether the prosecution has proved beyond reasonable doubt that the deceased was subjected to cruelty or harassment by the accused persons over the issue of demand for dowry? 2. Whether the dying declaration of the deceased is admissible in evidence? 3. Whether the accused persons are guilty of the offences under sections 304B and 498A IPC?
Ratio Decidendi: 1. The ingredients of the offence under section 304B IPC are: (i) death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances, (ii) such death must have occurred within seven years of her marriage, (iii) the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband in connection with demand for dowry, (iv) such cruelty or harassment is shown to have been meted out to the woman soon before her death. 2. The ingredients of an offence under section 498A IPC are: (1) the married woman must be subjected to cruelty or harassment and (2) such cruelty or harassment must have been shown either by husband of the woman or by the relatives of her husband. 3. Cruelty within the Explanation to the said section 498A means any wilful conduct which is of such a nature as is likely to drive a woman to commit suicide, or such wilful conduct which is likely to cause grave injury or danger to life, limb or health whether mental or physical of the woman, or harassment to the woman whether such harassment is with a view to coercing her for any property or valuable security. 4. A dying declaration is admissible in evidence under section 32(1) of the Indian Evidence Act, 1872, if the following conditions are satisfied: (i) the statement was made by the deceased while he was under a sense of impending death, (ii) the statement was made in respect of the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, (iii) the statement was made before the death of the deceased. 5. In the present case, the Court found that the dying declaration of the deceased was admissible in evidence as it satisfied all the conditions laid down in section 32(1) of the Indian Evidence Act, 1872.
Final Decision: The appeal was allowed on contest. The impugned order of conviction and sentence passed by the ld. Court below was set aside. The accused persons were acquitted of the charge under sections 304b/34 and 498a/34 IPC and they were set at liberty at once.
( 1 ) THE hearing stems from an appeal preferred against the judgement and order of conviction and sentence passed by the ld. Additional Sessions Judge, 1st Court, Hooghly in Sessions Trial No. 48 of 1992 on 15/10/2001.
( 2 ) SHORTLY put, and shorn of details, the prosecution case is that the marriage of Smritirani Singha, third sister of the de facto complainant (P. W. 10) took place with accused Subhasish on 2/8/1987 when various kinds of dowry, as demanded by her father-in-law Pranab Kumar Singha, were given. After the marriage she was subjected to insult and abuse by her father-in-law, mother-in-law annapurna Singha and grandmother-in-law Bangabala Singha (since deceased before framing of charge), over the issue of more dowry, and at the time of her visit to her father's house at Varanasi, she used to narrate about such torture. After the birth of her daughter, the degree of torture upon her, both physical and mental, increased. On many occasions the said accused persons assaulted her and threatened her with dire consequences, and her husband never protested against it. On 16. 07. 1990 at about 6. 30 a. m. the said grandmother-in-law set fire on her and her child after pouring kerosene oil for which both of them with severe burn injuries were removed to Burdwan Medical college and Hospital where the child expired on that date at about 9. 30 p. m. and she is fighting with death. On receipt of the said information the complainant came to hospital from Varanasi, and as he was busy in connection with treatment of his sister, there was some delay in lodging the FIR. Hence, all the three accused persons were charged under sections 498a/34 and 304b/34 IPC.
( 3 ) THE defence case, as suggested to P. Ws. and as contended by the accused persons during their examination under section 313 Cr. PC, is that the victim died on account of bursting of stove. She was not subjected to any ill-treatment or torture by the accused persons over the issue of dowry nor the accused persons demanded any dowry.
( 4 ) 24 witnesses were examined on behalf of the prosecution, while none was examined on behalf of the defence, and after considering the facts, circumstances and materials on record, the ld. Court below found all the three accused persons guilty under sections 304b/34 and 498a/34 IPC and sentenced them to suffer
imprisonment for life under section 304b but did not pass any separate sentence under section 498a IPC.
( 5 ) BEING aggrieved by, and dissatisfied with, the said order, the accused persons have preferred the present appeal.
( 6 ) ALL that now requires to be considered is whether the ld. Court below was justified in passing the aforesaid order and sentence.
( 7 ) TO start with, clause (c) of sub-section (1) of section 354 Cr. PC in mandatory terms requires amongst others to specify in the judgment, the section of the Indian Penal Code or other law under which the accused is convicted. Sub-sections (3) and (4) of the said section speak of conviction followed by passing sentence. Section 374 Cr. PC provides for appeal from conviction. In the present case, though the ld. Court below found the accused persons guilty under sections 304b/34 IPC and 498a/34 IPC, no order of conviction was passed under the aforesaid provisions and they were sentenced to suffer imprisonment for life under section 304b IPC which, though curable under section 465 Cr. PC, is a serious lacuna. The Code is a Code of Procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well-established and well-understood lines that accord with our notions of natural justice. If he does, if he is tried by a competent Court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully a
