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2013 Supreme(Cal) 698
IN THE HIGH COURT AT CALCUTTA
Nadira Patherya & Asim Kumar Ray, JJ.
SRABAN BANIK @ RAHUL BANIK
VERSUS
STATE OF WEST BENGAL
C.R.A. No. 289 of 2007
Decided on: 9th October, 2013
For the Appellant: Mr. Arindam Jana, Mr. Sanat Kumar Das, Mr. Pradipto Mukherjee.
For the State: Mr. Manjit Singh, Mr. Sandip Chakraborty.
The essential elements of Section 304B IPC are the demand for dowry and the cruelty inflicted on the victim soon before her death, which must be established by the prosecution to prove the offense of dowry death.
Headnote:
DOWRY DEATH - SECTION 304B IPC - SECTION 498A IPC - SECTION 306 IPC - CONVICTION AND SENTENCE - ANALYSIS OF DYING DECLARATION AND EVIDENCE - ESTABLISHMENT OF TORTURE AND DEMAND FOR DOWRY - APPLICABILITY OF SECTIONS 304B AND 306 IPC - MODIFICATION OF SENTENCE.
Fact of the Case:
The appellant was convicted and sentenced to life imprisonment for the dowry death of his wife under Section 304B IPC. The prosecution's case was that the victim was subjected to physical and mental torture by the appellant for dowry, which led her to commit suicide by setting herself on fire.
Finding of the Court:
The court held that the prosecution failed to establish the demand for dowry and the cruelty inflicted on the victim soon before her death, which are essential elements of Section 304B IPC. However, the court found that the victim was subjected to torture and harassment by the appellant, which led her to commit suicide, and convicted him under Section 306 IPC.
Issues: 1. Whether the prosecution proved the demand for dowry and cruelty inflicted on the victim soon before her death to establish a case under Section 304B IPC? 2. Whether the victim's dying declaration and other evidence established the torture and harassment by the appellant, which led to her suicide, to convict him under Section 306 IPC?
Ratio Decidendi: 1. The court held that the prosecution failed to establish the demand for dowry and the cruelty inflicted on the victim soon before her death, which are essential elements of Section 304B IPC. The court relied on the evidence of the victim's mother, who testified about the torture inflicted on the victim, but found that her testimony was exaggerated and not corroborated by other evidence. 2. The court found that the victim's dying declaration, recorded by a doctor, was reliable and established that the victim was subjected to torture and harassment by the appellant, which led her to commit suicide. The court also relied on the evidence of the nurse who was present when the dying declaration was recorded and corroborated the doctor's testimony.
Final Decision: The court upheld the conviction of the appellant under Section 306 IPC and modified the sentence from life imprisonment to 10 years imprisonment with a fine of Rs. 1,000/- in default 3 months S.I.
Patherya, J.: This appeal has been filed against the judgment and order of conviction dated 9th April, 2007 and sentence dated 10th April, 2007 passed by the Additional District and Sessions Judge, 2nd Fast Track Court, Serampore in Sessions Trial Case No. 1 of 2007 arising out of Sessions Case No. 163 of 2006 under Section 304B IPC whereby the appellant was directed to suffer R.I. for life and to pay a fine of Rs. 5,000/-.
2. The case of the prosecution is that the victim and the appellant married on 29th April, 2006 at Kali Temple. They resided in the house of the victim after marriage and thereafter they took a rented accommodation at Hind Motor. Thereafter the appellant demanded dowry from the victim which demand was not fulfilled and torture both physical and mental was inflicted on the victim. Subsequently, the victim was taken by the appellant to her matrimonial home at Uttarpara. Prior to the incident the appellant attempted to kill the victim by pouring mosquito repellant into her mouth. The victim unable to bear such torture set herself on fire by pouring kerosene.
3. On the basis of a telephonic call received by the I.O. PW 19 that a 19 year old girl had committed suicide in her bed room by pouring kerosene on her body and setting herself on fire, the police officer reached the place of incident at Shibtala Street, Bhadrakali under Uttarpara P.S. The fire was put off by the neighbouring people and the victim taken to hospital. The victim was admitted to Uttarpara State General Hospital in a serious condition and thereafter the officers of the concerned police station informed the parents of the victim about the incident. In her statement made before the I.O. (PW 19) which was treated as an FIR Uttarpara P.S. Case No. 124 of 2006 was registered and investigation initiated.
4. On completion of investigation charge sheet under Sections 498A, 306 and 304B IPC was submitted. The case was committed to the Court of Sessions Judge, Hooghly for disposal and later transferred to the Court of the Additional District and Sessions Judge, 2nd Fast Track Court, Serampore for trial. Formal charge under Sections 498A, 306 and 304B IPC was framed against the appellant and the same was read over and explained to the appellant who pleaded “not guilty” and claimed to be tried.
5. On behalf of the prosecution 19 witnesses were examined and none was examined by the defence. The appellant was examined under Section 313 CrPC. Certain documents were also taken on record as exhibits. On consideration of the evidence the Court below passed the order of conviction and sentence. Hence this appeal.
6. Counsel for the appellant submits that the order of conviction and sentence be set aside as the case under Section 498A IPC and demand for dowry was not proved by the prosecution. The dying declaration made before the doctor is invalid and the statement under Section 154 CrPC has been treated not only as a dying declaration but also as an FIR, both of which are not valid.
7. There was never any demand for dowry and the evidence of PW 5 (mother) is an exaggeration and ought not to be relied on. Even assuming without admitting that the demand for dowry under Section 498A IPC stands proved, at the highest it may be a case of harassment and therefore will attract Section 306 IPC and not Section 304B IPC. The prosecution has not been able to prove the case under Section 304B IPC against the appellant.
8. As regards the statement made by the victim on 23rd July, 2006 and recorded by the I.O. (PW 19) which is now being treated as a dying declaration under Section 32 of the 1872 Act. The said dying declaration (Exhibit-8) is not a valid statement. The patient should be mentally fit to make the statement. There is no such certificate given by the doctor. The said statement has been made before the I.O. and not before an Executive Magistrate. If it was made before an Executive Magistrate there would have been no reason to challenge the same but having been m
