In cases of dowry death, where the deceased was subjected to cruelty by her husband and father-in-law for non-fulfillment of their demand for money, and where she was also tortured and harassed soon before her death, and where the deceased died unnatural death and under unnatural circumstances, the court must draw presumption under Section 113B of the Indian Evidence Act to hold both the husband and the father-in-law of the deceased guilty of committing dowry death.

RANJIT KUMAR BAG, J.

1. This appeal arises out of judgment and order of conviction and sentence passed by learned Additional Sessions Judge, 5th Court, Barasat, North 24 Parganas in Sessions Trial No. 1(6) of 2001 corresponding to Sessions Case No. 15(6) of 1994, by which the appellants were sentenced to imprisonment for various terms and were directed to pay fine for the offence punishable under Section 498A and under Section 304B of the Indian Penal Code.

2. The backdrop of the conviction and sentence of the appellants is as follows:

One Md. Arsad Ali Gazi filed a written complaint before the Officer-in-charge of Basirhat Police Station on the basis of which Basirhat Police Station Case No. 170 dated June 9, 1990 under Sections 498A/304B of the Indian Penal Code was registered. It appears from the said written complaint that one Mumtaj Begum was married to the appellant-Yusuf Ali Gazi in the month of Aghrayan, 1396 BS, according to Muslim rites. The mother of Mumtaj Begum gave cash of Rs.6,000/-, gold ornaments and other articles as gift in the marriage ceremony. Mumtaj narrated to her maternal uncle, maternal aunts and her mother that she was subjected to harassment and torture by her husband and parents-in-law in order to create pressure for non-fulfilment of demand of more money. This incident was reported to the members of local Gram Panchayat. On June 2, 1990 the younger brother of the de facto complainant went to the matrimonial home of Mumtaj, when the appellants threatened him with dire consequences if their demand for balance amount of money is not fulfilled within a period next seven days. One June 4, 1990 at about 10-11 P.M. Mumtaj was subjected to physical torture by her husband and parents-in-law and thereby Mumtaj died in her matrimonial home. The de facto complainant suspected that Mumtaj committed suicide due to torture inflicted on her by her husband and parents-in-law. The police investigated the said criminal case and submitted charge sheet before the appropriate court of law.

3. The trial court framed charge against the appellants on the allegation of committing offence under Section 498A and under Section 304B of the Indian Penal Code. On conclusion of trial all the appellants were found guilty of the charge under Sections 498A/304B of the Indian Penal Code. The trial court convicted the appellants and sentenced them to suffer rigorous imprisonment for one year and to pay fine of Rs.1,000/- each, in default to suffer imprisonment for one month more for the offence punishable under Section 498A of the Indian Penal Code. The appellants were also convicted and sentenced to suffer rigorous imprisonment for seven years each and to pay fine of Rs.2,000/- each, in default to suffer imprisonment for two months more for the offence punishable under Section 304B of the Indian Penal Code. The trial court gave direction so that the appellants would serve the sentences concurrently and the period of imprisonment undergone by the appellants as under trial prisoner would be set off. The appellants have challenged the said judgment and order of conviction and sentence by preferring this appeal.

4. Mr. Debabrata Acharya, learned counsel for the appellant nos. 2 and 3 contends that the prosecution has failed to adduce any evidence to implicate the parents-in-law of the deceased in the offence punishable under Section 498A and under Section 304B of the Indian Penal Code. He submits that bald statements by the prosecution witnesses cannot establish that the deceased was subjected to cruelty by the parents-in-law of the deceased. By referring to the evidence of the doctor who conducted post mortem examination on the dead body of the deceased, Mr. Acharya argues that the doctor has failed to opine whether the deceased died an unnatural death. He has also pointed out the lacunae in the examination of the appellant nos. 2 and 3 under Section 313 of the Code of Criminal Procedure and submits that the appellant nos. 2 and 3