Samajid Ali And Ors vs State Of Tripura

[1] The appeal being Crl. App. No.14 of 2019, as converted by the order dated 23.05.2019 from Crl. Rev. P. No.104 of 2016, and Crl. App. No.30 of 2016 are consolidated for disposal by a common judgment as those appeals emerge from the same judgment of conviction [of the appellants of Crl. A. No. 30 of 2016] and acquittal [of the appellant of Crl. A. No. 14 of 2019].

[2] Having regard to the fact that both the appeals emerge out of the same proceeding being ST/T-2/0000008/2015 [corresponding to GR 177/2014 and CRB PS case No.19/2014] and the trial was brought to its logical end by the judgment dated 24.08.2016 delivered in ST/T-2/0000008/2015, the appeals were heard together.

[3] The criminal appeal being Crl. A. No.14 of 2019 has been filed by the victim against the judgment and order of acquittal of the accused persons namely Samajid Ali and Golap Jan Bibi from the charge under Section 304-B of the IPC. However, in the memorandum of appeal, even the discharge of Mst. Sultana Begum, Md. Martuz Ali (Makhan) and Md. Mastakin Ali respectively the respondents No.4, 5 and 6 as was proposed by the police has been challenged, but against them no charge was framed by the trial court after accepting the police report, having acceded to the prayer for their discharge for lack of evidentiary materials against those persons. The respondents No.2 and 3 in the Crl. App. No.14 of 2019 have filed the appeal being Crl. App. No.30 of 2016 as they have been convicted by the said judgment. It is to be noted that those appellants have been convicted under Section 498-A of the IPC and sentenced to suffer rigorous imprisonment for 3 (three) years and to pay fine of Rs.10,000/- with default stipulation.

[4] The prosecution against the appellants in Crl. App. No.30 of 2016 and the respondents No.4, 5 and 6 in Crl. App. No.14 of 2019 was launched based on a written complaint filed by one Nur Uddin on 30.06.2014 to the Officer-in-Charge, Churaibari Police Station, Dharmanagar, North Tripura. In the said complaint, it was revealed that on 24.02.2014, the informant‟s daughter namely Mallika Bibi was kidnapped. The said kidnapping was reported to the same Churaibari Police Station. Almost after 3 (three) months, his daughter was traced out in the house belonging to one Martuz Ali alias Makhan, the resident of village East Fulbari.

[5] During that time, Martuz Ali and Mastakin Ali came to the house of the informant and made a proposal for giving her daughter in marriage with one Samajid Ali, one of the convict-appellants, of that village. They claimed that his daughter was under their custody. He did not agree to that proposal, but later on, considering the future of his daughter, he had given marriage of her daughter as per sharia law to Samajid. Accordingly, on 02.05.2014, Kabinnama i.e. the contract of marriage was executed in presence of both the parties on consideration of Rs.40,000/-(rupees forty thousands) as den mehre. After marriage the convict-appellant Samajid Ali and his daughter started their conjugal life. Over passage of 15 days of the marriage, Samajid Ali, Golap Jan Bibi and Sultana Begum started pressurizing his daughter under advice of Martuz Ali (Makhan) and Mastakin Ali and started inflicting physical and mental torture on his daughter on unlawful demand of money. Even to exert the pressure further, the accused persons went to the length of stating to the informant that they would „kill‟ his daughter, if the informant did not take her back home. On 28.06.2014, one Habibur Rahaman alias Babu Mia came to the informant‟s house and made a request for sending his daughter, who had been staying with the informant at that time at her father-in-law‟s house. He assured the informant that the matrimonial discord could be sorted out and his daughter would get the honour of wife in her father-in-law‟s house. He also assured that Samajid Ali will take all responsibilities of his daughter as the husband. Thus, he sent his daughter to live with Samajid. But on the day when the information was lodged to the police station, he got the information that hid daughter has expired. He along with other companions went to his daughter‟s matrimonial home where they found their kitchen locked from „outside‟.

[6] The police reached the place of occurrence. When the police urged whereabouts of his daughter, Samajid Ali had shown the kitchen. The police had opened the door and found his daughter hanging from the ceiling by dint of a nylon rope. Her feet was found around 5-6 inch above from the floor. The informant suspected that his daughter had been killed and later on hanged. Based on the said ejahar, CRB P.S. Case No.19/2014 under No.498A/304B/34 of the IPC was registered and taken up for investigation.

[7] On completion of investigation, the police report was filed by sending up all the accused persons including Samajid Ali and Golap Jan Bibi. But against the other accused person during the investigation sufficient evidence could not be established. Hence, the police prayed for discharge of the following accused persons from the Criminal liability: (1) Mst. Sulatana Begum, (2) Md. Martuj Ali (Makhan) and (3) Md. Mastakin Ali. Since offences were exclusively triable by the court of sessions, the case was committed to the Court of the Sessions Judge, North Tripura, Dharmanagar. The Sessions Judge transferred the case for trial to the court of the Assistant Sessions Judge, North Tripura, Dharmanagar. On consideration of the materials as brought on record in case No. ST(T-2) 08 of 2015, the Assistant Sessions Judge [or the trial court, for reference] framed charge under Section 498-A of the IPC read with Section 34 of the IPC against the appellants namely Samajid Ali and Mst. Golap Jan Bibi. Separate charge was framed against Samajid Ali and Mst. Golapjan Bibi under Section 304-B of IPC read with Section 34 of the IPC.

[8] Since, those convict appellants pleaded innocence and claimed to be tried, the prosecution, in order to substantiate the charge against them, adduced as many as 9 (nine) witnesses and introduced 8 (eight) documentary evidence including the post-mortem examination report (Exbt.4) and the inquest report (Exbt.4). However, one Kabinnama and the report of the Tripura State Forensic Science Laboratory (SFSL) were placed on the records, but those were not introduced in the evidence. After the prosecution evidence was recorded, the convict-appellants were examined separately under Section 313 of the Cr.P.C when each of them reiterated their plea of innocence by stating the evidence as malafide and fabricated. Those convict appellants being the accused did not adduce any evidence. On appreciation of the evidence, as led by the prosecution, by the judgment as challenged under these appeals being the judgment dated 24.08.2016, the trial court convicted the appellants under Section 498-A of the IPC and acquitted them from the charge under section 304-B of the IPC. Consequential sentence was passed, as stated earlier.

[9] Mr. Samar Das, learned counsel has submitted that by accepting the report submitted by the police under Section 173(2) of the Cr.P.C. for discharging of the other accused-respondents in Crl. App. No.14 of 2019, the trial court has committed serious illegality. On the basis of the materials available on records, the charge would have equally been framed against those accused persons who stood discharged on accepting the investigation report.

[10] Further Mr. Das, learned counsel has submitted that on analysis of the evidence as placed by the prosecution it would be apparent that there is clinching materials and those cannot be brushed aside without taking proper consideration. Hence, the acquittal of the accused including the appellant from the charge under Section 304-B of the IPC has caused miscarriage of justice.

[11] According to Mr. Das, learned counsel that the discharge and the acquittal are yield of perverse appreciation and as such the acquittal and the discharge [both inclusive] of those accused warrants to be interfered with and set aside. To ensure justice, a fresh trial be directed so that the materials so far collected against the accused-respondents be appropriately placed and appreciated. If need be, further investigation be directed.

[12] Mr. Das, learned counsel has submitted that the reasoning of the trial court is grossly disturbing as those are based on non-consideration of evidence.

[13] The trial court‟s observation that it is clear that the victim was tortured for illegal demand, but not dowry. Hence, the offence under Section 306 of the IPC or under Section 304-B of the IPC has not been proved. It has not been established that accused persons tortured the victim to fulfill the dowry-demand or cause abetment to commit suicide. It has been further observed that the rigors of law cannot be applied, so far Section 304B of the IPC is concerned. It has been categorically observed that the demand for money for purpose of construction of house for staying would not come within the purview of dowry, but when that demand is couched with physical torture that be considered as illegal demand within explanation of Section 498-A of the IPC.

[14] According to Mr. Das, learned counsel for the victim-appellant the analogy in respect of definition of dowry and unlawful demand is so flimsy that it turns to be completely unacceptable. Hence, the convict-appellant as well as the accused-respondents ought to have been convicted under Section 304-B of the IPC, but they were given acquittal from that charge. Even though, the accused-respondent ought to have been convicted under Section 304-B of the IPC but the convict-appellants have been convicted under Section 498-A of the IPC. The inference leading to acquittal or discharge, being grossly illegal, be set aside.

[15] Mr. S. Kar Bhowmik, learned counsel appearing for the convict-appellants and the respondents No.2 and 3 in the appeal being Crl. App. No.14 of 2019 has made two-pronged submissions. As preface to his substantive submission Mr. Kar Bhowmik, learned counsel has contended that the discharge of the accused-respondents was never challenged by the victim-appellant nor they were aggrieved by framing of the charge only against the convict-appellants.

[16] Mr. Kar Bhowmik, learned counsel for the appellant has contended that the appellant cannot in the appeal take objection against the said discharge of the accused-respondents. Notwithstanding the fact that the State did not carry out any challenge against the discharge, the appellant (the victim) was at liberty to file an appeal against their discharge or acquittal of the accused-respondents from the charge under Section 304-B of the IPC. But the State did not consider that the appeal was really necessary in the circumstances of the case. Therefore, they did not file any appeal or revision questioning the acquittal or discharge. However, the victim has got substantive right under the proviso to Section 372 of the Cr.P.C. to file appeal against the acquittal and as such this court has permitted their revision petition to be converted in the full fledged appeal and now both the appeals against the conviction and the appeal against the acquittal are being considered together.

[17] Mr. Kar Bhowmik, learned counsel has taken this court to show that Samajid Ali did not have access to the victim before the formal marriage was solemnized. There is evidence that the victim was pregnant and she was carrying fetus of 12 weeks. Mr. Kar Bhowmik, learned counsel from the evidence has shown that the victim died on 30.06.2014 whereas according to the FIR filed by the father of the victim, it appears that marriage of the victim with Samajid Ali had taken place on 02.05.2014. It was informed that the victim eloped with one Fakar Uddin who has been cited as the witness No.9 in the police report, but was not examined. Two dates of death and marriage, according to Mr. Kar Bhowmik, learned counsel have not been disputed by either of the parties. Thus, it has come to the surface that the victim was carrying and she had been carrying illegitimate fetus having no relation to the conjugal life of the victim with the appellant, Samajid Ali. As the victim was aware of pregnancy out of shame she had committed suicide and there is no other evidence having relation to such death.

[18] Mr. Kar Bhowmik, learned counsel has succinctly submitted that there is no evidence of harassment for realization of dowry or for any other purpose. The informant has disclosed that he had strong suspicion against the appellants. Even during the investigation, no material could be collected to the effect that soon before her death, she was tortured or harassed.

[19] According to Mr. Kar Bhowmik, learned counsel even the conviction under Section 498-A of the IPC is grossly erroneous inasmuch as there is no cogent evidence to hold that the victim was put to cruelty by the convict-appellants. There were some sweeping statements made by some of the witnesses, but for lack of particulars and specific date and the nature of her cruelty, those can be treated as the legal evidence. In support of his contention, Mr. Kar Bhowmik, learned counsel has relied on 3 (three) decisions of the apex court viz. Manohar Lal vs. State of Haryana reported in (2014) 9 SCC 645 in respect of ingredient of the offence punishable under Sections 304-B and 498-A of the IPC. Pinakin Mahipatray Rawal vs. State of Gujarat reported in (2013) 10 SCC 48 in respect of cruelty and Modinsab Kasimsab Kanchagar vs. State of Karnataka and Another reported in (2013) 4 SCC 511 in respect of the meaning of „soon before‟ the death for establishing the charge under Section 304-B of the IPC.

[20] In Manohar Lal (supra) the apex court has held that for purpose of holding the charge under Section 304-B of the IPC (dowry death), presumption can be raised only on proof of the following facts:

(a) Death of the woman was caused by burns or bodily injury or occurs otherwise then under normal circumstances,

(b) Such death took place within 7 (seven) years of her marriage,

(c) The woman was subjected to cruelty or harassment by her husband or his relative,

(d) Such cruelty or harassment was for, or in connection with, any demand for dowry and

(e) Such cruelty or harassment had occurred „soon before‟ her death.

Mr. Kar Bowmik, learned counsel has further submitted that even if the conditions as laid down above at (a) and (b) were accepted as proof, then but definitely the conditions at (c), (d) and (e) are to be proved by the prosecution.

Thus, it has to be held that the requirement to prove dowry death could not be established by the prosecution even though the unnatural death of the victim had taken place within 7 (seven) years of their marriage.

[21] Thereafter, the expression "soon before her death" as appearing in Section 304-B IPC and Section 113-B of the Evidence Act has been defined approvingly reproducing from Hira Lal vs. State (Govt. of NCT of Devil) reported in (2003) 8 SCC 80 where the apex court laid down as follows :

"8. Section 304-B IPC which deals with dowry death, reads as follows:

"304-B. Dowry death.- (1) Where the death of a woman is caused by any burns or 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 death", and such husband or relative shall be deemed to have caused her death.

Explanation.- For the purpose of this sub-section, "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.‟

The provision has application when death of a woman is caused by any burns or 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 relatives of her husband for, or in connection with any demand for dowry. In order to attract application of Section 304-B IPC, the essential ingredients are as follows:

(i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.

(ii) Such a death should have been subjected to cruelty or harassment by her husband or any relative of her husband.

(iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband.

(iv) Such cruelty or harassment should be for or in connection with demand of dowry.

(v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death.

Section 113-B of the Evidence Act is also relevant for the case at hand. Both Section 304-B IPC and Section 113-B of the Evidence Act were inserted as noted earlier by the Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113-B reads as follows:

"113-B. Presumption as to dowry death- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death.

Explanation.- For the purpose of this section, "dowry death" shall have the same meaning as in Section 304-B of the Indian Penal Code (45 of 1860).‟

The necessity for insertion of two provisions has been amply analysed by the Law Commission of India in its 21st Report dated 10-8-1988 on „Dowry Deaths and Law Reform‟. Keeping in view the impediment in the pre-existing law in securing evidence to prove dowry-related deaths, the legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background that presumptive Section 113-B in the Evidence Act has been inserted. As per the definition of „dowry death‟ in Section 304-B IPC and the wording in the presumptive Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the woman concerned must have been „soon before her death‟ subjected to cruelty or harassment „for or in connection with the demand of dowry‟. Presumption under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials:

(1) The question before the court must be whether the accused has committed the dowry death of the woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B IPC).

(2) The woman was subjected to cruelty or harassment by her husband or his relatives.

(3) Such cruelty or harassment was for or in connection with any demand for dowry.

(4) Such cruelty or harassment was soon before her death." [Emphasis added]

[22] Thereafter, having referred to a decision of the apex court in Balwant Singh And Another vs. State of Punjab reported in (2004) 7 SCC 724 it has been asserted that "soon before" is an expression which permits of elasticity, and therefore the proximity test has to be applied keeping in view that the facts and circumstances of each case. The facts must show that existence of a proximate live-link between the effect of cruelty based on dowry demand and the death of the victim.

[23] Mr. Kar Bhowmik, learned counsel has dilated further to submit that the prosecution has failed to prove that, in the case in hand there is no evidence to show that so called cruelty or harassment that had taken place had any connection with the hanging which has been found to be homicidal in nature. In Pinakin Mahipatray Rawal (supra), the apex court has revisited the term "cruelty" as appearing in Section 498-A of the IPC and it has been observed as under:

"21. This court in Girdhar Shankar Tawade v. State of Maharashtra, examined the scope of the Explanation and held as follows : (SCC p.180, para 3)

"3. The basic purport of the statutory provision is to avoid „cruelty‟ which stands defined by attributing a specific statutory meaning attached thereto as noticed hereinbefore. Two specific instances have been taken note of in order to ascribe a meaning to the word „cruelty‟ as is expressed by the legislatures: whereas Explanation (a) involves three specific situations viz. (i) to drive the woman to commit suicide or (ii) to cause grave injury or (iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in Explanation (b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury: whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of „cruelty‟ in terms of Section 498-A."

In Gananath Pattnaik v. State of Orissa: (2002) 2 SCC 619 , this Court held that the concept of cruelty under Section 498-A IPC and its effect under Section 306 IPC varies from individual to individual also depending upon the social and economic status to which such person belongs. This Court held that cruelty for the purpose of offence and the said section need not be physical. Even mental torture or abnormal behaviour may amount to cruelty or harassment in a given case." [Emphasis added]

[24] Finally, reliance has been placed by Mr. Kar Bhowmik, on Modinsab Kasimsab Kanchagar Vs. State of Karnataka, reported in (2013) 4 SCC 551 where the apex court has elucidated the term dowry and the essential ingredients to constitute dowry. It has been observed in that report having approved Appasaheb And Another vs. State of Maharashtra reported in (2007) 9 SCC 721 that the word dowry appearing in Section 304-B of the IPC will have the same meaning as provided by Section 2 of Dowry Prohibition Act, 1961. Thus, it has been held that the word „dowry‟ in Section 304-B IPC would mean any property or valuable security given or agreed to be given, directly or indirectly on or before or any time after the marriage and in connection with the marriage of the parties. In that case, the apex court had held that even though the amount which was taken for re-payment of the debt cannot be treated as dowry, but that can be treated as unlawful demand, if the observation is read in its entirety, inasmuch as for realization of which the woman was subjected to harassment with a view to coerce the persons related to her.

[25] In this regard, the relevant part of the Section 2 of the Dowry Prohibition Act, 1961 may gainfully be referred. The said Act defines "dowry" to mean:

"(a) by one party to a marriage to the other party to the marriage; or

(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage."

[26] Mr. Kar Bhowmik, learned counsel has submitted that from the evidence, it has surfaced that the demand according to the prosecution was made for construction of house. Mr. Kar Bhowmik, learned counsel has as well submitted that even though the Investigating Officer had opportunity to carry out the DNA Test of the fetus [that was found in the womb of the deceased] but the said test was not carried out and as such the paternity of the fetus remained un-determined. If the fetus is not from the marital tie of the convict-appellant there would arise a strong probability to believe that as the suicidal context. To avoid the great shame, it would be probable that the deceased has committed suicide, for which the appellants can be made responsible.

[27] For appreciation of the submission made by the learned counsel appearing for the parties, it would be appropriate to make a brief survey of the record of evidence. It is apparent that earlier 9 (nine) witnesses had been examined by the prosecution in order to establish the charge as framed against the convict-appellant.

[28] PW1, Md. Nur Uddin is the unfortunate father of the deceased, namely Mallika Bibi and he had lodged the written ejahar to the Officer-in-Charge of Churaibari Police Station. The content of the FIR has been elaborately noted before. Nur Uddin (PW1) has stated in the trial that her daughter was married to Samajid Ali as per the social rites and customs. Initially he was not agreeable to the proposal of marriage of his daughter with Samajid Ali, one of the convict appellants. On 02.05.2015 his daughter was married to Samajid Ali as per Shariya laws. His daughter stayed in her husband‟s house peacefully for about 15 days. After 15 days of her marriage both the convict-appellants started physical torture on his daughter on demand of cash of Rs.60,000/- "to construct" a separate house. Having learnt of the physical torture, PW1, visited the matrimonial home of his daughter and took her to his house. At that time, her husband made demand of Rs.60,000/- to construct a separate for him. On such demand, she was physically assaulted and thereafter on conciliation made at the instance of one Babul Mia, Samajid Ali and Siraj Uddin took her daughter to her matrimonial home. After 2 days of her going to the matrimonial home, Mallika was found hanging in the kitchen. Having received the news, he had rushed to the house of Samajid Ali and saw his daughter hanging from a beam of the kitchen with a nylon rope. Police personnel appeared and conducted the inquest. The important part of his deposition is that he came to know from the neighbours, namely Abdul Kadir (PW3), Md. Abdul Sukkur (PW5) and Md. Siraj Uddin (PW6) that on the previous night of the incident there was quarrel between his daughter and her husband.

In the cross-examination when he was asked whether he knew Fakar Uddin of their village, he answered in the affirmative and thereafter he had stated that he did not mention in his written complaint (Ejahar) that his daughter was found missing from the school. Thereafter, he had stated in the cross-examination as follows:

"I know Fakar Uddin S/O Rahamati Ali of our village. I did not mention in my ejahar that my daughter was found missing from the school. I do not know whether earlier my daughter went away with on Fakar Uddin from her school. I also implicated Sultana Begam, Martuz Ali and Mastakin Ali in my ejahar. It is true that I got back my daughter Mallika Bibi in the house of Martuz Ali after her missing. It is not a fact that Fakar Uddin had destroyed the chastity my daughter and for this myself along with Martuz Ali and Mastakin Ali arragned marriage of my daughter Mallika Bibi with Samajid Ali thinking the future good of my daughter."

More importantly, he has admitted that he did not mention in the ejahar that on the previous night of the occurrence there was quarrel. Even he did not mention the name of Sukkur, Kadir and Siraj Uddin in his ejahar stating that they had informed him that on the previous night there was quarrel between his daughter and her husband. He had denied the suggestion that there was no quarrel between his daughter and the accused, Samajid Ali on the previous night or his daughter was tortured by the accused person. PW1 has stated that Samajid Ali is a day labourer by occupation and he was away from home. Fakar Uddin enjoyed the music in the house of his daughter along with Mastakin and asked his daughter why she had married Samajid Ali. But he has denied the suggestion that Mallika had denied to live with the first wife of Samajid Ali.

[29] Abdul Hasib, PW2 is the uncle of the deceased, Mallika Bibi. According to him, sometime in February 2014, one day Mallika was taken away from her school and thereafter, Samajid Ali married Mallika Bibi. From the neighbours, he came to know that Mallika committed suicide by hanging with a nylon rope in the kitchen. He also heard from the neighbours that Mallika was tortured physically in the preceding night of her committing suicide. He identified the accused in the dock. He has as well denied that Mallika had fled away with Fakar Uddin earlier and later on she was found in the house of Mastakin Ali. He has also denied that Mallika was given marriage with Samajid Ali against her will. Mallika Bibi had love affairs with Fakar Uddin. Later on in the cross-examination PW2 has stated that he did not know that what happened in the previous night in the house of Samajid Ali.

[30] PW3, Abdul Kadir is a witness from the neighbourhood of Samajid Ali. He has confirmed that on the previous night he had heard the quarrel among Mallika Bibi, her husband and Golap Jan Bibi, the other convict-appellant. PW3 has admitted that he found Fakar Uddin and Siraj Uddin, his co-villagers, on the day of occurrence when he had visited the house of Samajid Ali.

[31] PW4, Md. Joynal Abedin has testified in the trial by stating that after first 15 days of the deceased‟s marriage, one day Mallika‟s father, PW1 told him that Samajid Ali and his first wife Golap Jan Bibi started physical torture upon Mallika Bibi and they had asked Mallika Bibi to bring money for construction of a separate house. 15 days later, one day in the morning, he came to know that Mallika died by hanging in the kitchen. There was gathering of other co-villagers in the house of Samajid Ali. At that time, he heard from the close neighbours, namely Abdul Kadir, Siraj Uddin, Rahaman, Burhan Uddin that on the previous night there had been quarrel on two occasions between Mallika Bibi and her husband Samajid Ali and Golap Jan Bibi. Mallika Bibi was assaulted by the accused persons - first, during the quarrel on the issue of their demand of money to construct house. He identified the appellants. Those persons had told him that on the previous night of the occurrence quarrel took place on two occasions between Mallika Bibi and her husband and Golap Jan Bibi.

[32] PW5, Md. Abdul Sukkur has testified in the trial that the appellant Samajid Ali is the step brother. He married Mallika Bibi one and half year before the day when he had deposed in the trial. According to him, Mallika and Samajid led their conjugal life. But after 15 days of the marriage, Samajid‟s first wife Golap Jan Bibi started assaulting Mallika asking her to bring a sum of Rs.60,000/- from her parents‟ to construct a separate house. Mallika expressed her inability and over that issue, she was assaulted. After about one month of her marriage Mallika committed suicide by hanging. He has categorically stated that on the previous day of Mallika‟s death, she was assaulted by Samajid and his first wife Golap Jan Bibi. First, Mallika was assaulted at about 10.00 am and subsequently in the afternoon at about 3.00 pm on the same issue. At the first instance, PW5 stated that he heard Mallika being assaulted on the previous day. Later on, he has stated that he heard the quarrel before her death, from his house situated adjacent to the appellant‟s house. He saw the dead body of Mallika hanging from a beam. Having gathered information, Joynal Abedin, Siraj Uddin, Kalam, Nur Uddin and other villagers and the police personnel reached the place of occurrence, the house of Samajid Ali. He stood witness to seizure of nylon rope by which Mallika was found hanging. He has identified the seizure list (Exbt.1) and the seized material, Exbt. No.1. In his presence, the police officer seized the Kabinnama of marriage of Mallika. He stood the witness to that seizure.

In the cross-examination, he has stated that after his going to the place of occurrence, the police officer came to that spot within 5 minutes. He has admitted that he did not send information to the police about the incident. He saw the hut where Mallika was found hanging under lock and key from outside. That hut was one door kitchen and there was no window in that kitchen. He has denied to have rushed to the house of Samajid Ali to settle the quarrel between Mallika Bibi and the other appellant. He has admitted that he was the next-door neighbour of Samajid Ali. He has stated that he told the police officer that Mallika was assaulted on the previous day of occurrence firstly, at 10.00 am and lastly at 3.00 am in the house of the accused person. But no such statement could be shown by PW5 in the previous statement recorded by the police officer under Section 161 of the Cr.P.C. He has denied to have heard any music played in the loud voice in the house of Samajid Ali. He has admitted that in the year 2007, Golap Jan Bibi as the first wife of Samajid Ali lodged one complaint against him alleging that he had assaulted her on the issue of her land. He has, however, denied that he deposed falsely against the accused persons with a view to grab the propriety of Samajid Ali and Golap Jan Bibi. It was also suggested that no physical assault was caused on Mallika Bibi by the accused person on the previous day of the occurrence.

[33] PW6, Md. Sirajuddin is a neighbour of the informant, namely Md. Nur Uddin (PW1). He has stated that on one day Mallika was found missing from her way to the school. On that day Samajid was found missing at the same time. Then, everybody had suspected that Samajid Ali had taken away Mallika. Golap Jan Bibi, the wife of Samajid Ali told that him that her husband kidnapped Mallika from her way to the school. Three months thereafter, Samajid Ali returned home with Mallika. His wife Golap Jan Bibi did not allow Mallika to enter into the house. Subsequently, in a social meeting it was decided that Samajid Ali would marry Mallika and accordingly they were given marriage. Golap Jan Bibi did not accept that marriage. Golap Jan Bibi asked Mallika to bring money from her parents if she wanted to live in the house with her. Her husband did not prevent her in pressurizing Mallika for bringing money. But without money Mallika returned to her matrimonial home and started living with Samajid Ali. Golap Jan Bibi and Samajid Ali had assaulted Mallika in their house. Golap Jan Bibi and Samajid Ali had assaulted Mallika in their house. In the following morning Golap Jan Bibi met PW6 and told him that Mallika died. Golap Jan Bibi told him to come to her house. After reaching the house, he found the dead body of Mallika hanging from the ceiling of the kitchen. Her legs were found half cubit above the ground. Her neck was tied up with a rope. At about 11.00 am, the police came when he was there. Neither Samajid Ali nor his wife, Golap Jan Bibi was there.

In the cross examination he has stated that Samajid Ali is a day labourer. Fakaruddin alias Nany is known to him. Martuj Ali and Mastakin Ali are known to him. Abdul Sukkur lived between his house and the house of Samajid Ali. He had no knowledge whether Mallika had eloped with Bodhan Miah of Assam Para. It has been asserted in the cross-examination that the music was being played in the sound system in the house of the appellants during the night before Mallika was found dead in the next morning. He denied the suggestion that at that time Golap Jan Bibi was away from their home or she went to her paternal home. On the following morning, Samajid Ali and Golap Jan Bibi returned home and found the police in their house. This suggestion was squarely denied. Even PW6 denied the suggestion that Samajid Ali and his wife Golap Jan Bibi did not assault Mallika day before the occurrence. The suggestion has been made to PW6 that there was no demand for money. She has also denied the suggestion that Samajid Ali and Golap Jan Bibi did not assault Mallika to pressurize her for bringing money.

[34] PW7, Dr. Arunavo Chakraborty conducted the post mortem examination on 30.06.2014 over the dead body of Mallika. He was the part of the team of medical officers consisting of Dr. Migangka Dutta Biswas and he. On examination of the dead body, PW7 had found that the body was average and rigormortis was there. PW7 has given the features as noticed during the post mortem examination. In the report, the post mortem doctor has observed that the cause of death was due to cardio respiratory failure following a mechanical asphyxia as consequence of hanging. The viscera was preserved and sent to the State Forensic Science Laboratory (SFSL) and SFSL gave their report by excluding death by taking poison.

[35] PW8, Biplab Debbarma, has clearly stated that there was no mark of violence. There was no effective cross-examination in respect of the statements made in the examination-in-chief. It is true that histo-pathological examination of the fetus could have determined the blood group and aid towards DNA profiling of the fetus. Even there was no direction. PW7 has asserted that they had suggested histo-pathological examination of viscera,but no poison was detected.

PW8, has narrated in the trial how he had conducted survey and prepared the site map, and examined the witnesses and perused the various documents. He has categorically stated that after completion of the investigation and on perusal of the post-mortem examination report, SFSL report and other relevant materials, he had handed over the record to the SDPO, Dharmanagar. He has categorically stated that he did not arrange for collection of blood sample of the fetus, found in the womb of the deceased, neither did he arrange for DNA test. He did collect the blood sample for purpose of DNA test for determining the paternity or biological parents of the fetus. He has admitted in his cross-examination that the FIR was lodged on 02.05.2014 and marriage of the deceased and Samajid Ali took place on 24.02.2014. According to the said investigation officer, he has also denied that in absence of Samajid Ali and Golap Jan Bibi a liquor party was alleged where Fakar Uddin Ali was present. In the cross-examination he did reveal nothing but has pointed out certain deficiencies.

[36] Mr. Kar Bhowmik, learned counsel appearing for those accused-appellants, namely Samajid Ali and Golap Jan Bibi has robustly stated that SDPO who conducted the latter part of the investigation was also examined as PW9. He had simply filed the charge sheet on the recorded evidence and various documents.

[37] PW9, Rajdeep Ghosh took over the investigation of the CRB Police Case No.19 of 2014 on 19.08.2017. He had merely filed the charge-sheet. He has stated that the investigation was not collusive and on due consideration only the appellants, namely Samajid Ali and his wife namely Golap Jan Bibi were charge-sheeted. Against others, there was no material and as such, for absence of prima facie materials Sulatana Begum, Martuj Ali (Makhan) and Mastakiin Ali were not sent up for facing the trial.

In the cross-examination, he has categorically stated that 24.02.2014 Mallika Bibi was kidnapped and the matter was informed to Churaibari police station. After approximately 3 months, Mallika Bibi was found in the house of one Martuj Ali (alias Makhan) at East Fulbari. Murtaj and Mastakin once visited the house of PW1 and proposed marriage of his daughter with Samajid Ali. Thus, he has denied that Samajid Ali was compelled to marry Mallika Bibi. He has denied the other suggestions made to him. He has, however, admitted that he did not examine Abedur Rahaman who had given the information to the police.

Having appreciated the evidence meticulously this court finds that two aspects as regards whether the appellants have committed the dowry death and whether they have committed cruelty on unlawful demand.

[38] In the appeal, being Crl. A. No.14 of 2019 the challenge is against the acquittal from the charge framed under Section 304B of the IPC. So for the distinction between the dowry and the other from of gift is well settled and in this regard the law as enunciated in Hira Lal (supra) is unambiguous in the perspective of dowry death. The apex court has further consolidated the law stating that any demand unrelated to the marriage cannot be called dowry. In Modinsab Kasimsab Kanchagar (supra) the apex court having referred to Section 2 of the Dowry Prohibition Act, 1960 has further enunciated that if anything is given to the husband to meet their urgent financial requirement may not come within the purview of "dowry".

[39] Mr. S. Das, learned counsel appearing for the appellant in Crl. A. No.14 of 2019, has submitted that the requirement of Section 304 B of the IPC has been well proved by the prosecution inasmuch as, soon before the death there was cruelty on the deceased for realizing dowry and as such, for unnatural death of the wife within the 7 (seven) years of marriage the presumption of dowry death under Section 113-B of the Evidence Act is inescapable. In this regard, Mr. Das, learned counsel has referred to the testimonies of PWs-1, 3, 4, 5 and 6.

[40] Mr. S. Kar Bhowmik, learned counsel, however, has submitted that such inference cannot spring from the evidence on record. According to him, even there is no evidence to sustain the conviction under Section 498A of the IPC. He has quite emphatically submitted that she was carrying fetus, unrelated to Samajid Ali in as much as it is admitted that the wife committed suicide within less than two and half months of their marriage, but from the post-mortem report it surfaced that she was carrying a fetus of 12 weeks. The prosecution even did not take care to carry out the DNA test to establish the parentage of the fetus.

[41] Mr. Kar Bhowmik, learned counsel has submitted that even though Md. Fakar Uddin is cited as the witness but he was not produced by the prosecution. Thus, the defence has clearly made out a case that out of frustration and on apprehending public shame for the said fetus, Mallika Bibi had committed suicide.

[42] Mr. Das, learned counsel in response to such submission has further submitted that it is well proved that 3 months before the marriage Samajid Ali eloped with Mallika Bibi and at least during the same time both Mallilka and Samajid Ali were missing from the village. But he has admitted to a query that even there was allegation of pre-marital sexual intercourse.

[43] Mr. Kar Bhowmik, learned counsel has also relied on a decision of this court in Billal Miah and Another vs. State of Tripura reported in 2012 (4) GLT 135 where this court had occasion to observe that in any event, the wilful act or conduct ought to be the proximate cause in order to bring home the charge under Section 498A and not de hors the same. An event occurred in the past cannot be related for purpose of bringing the charge under Section 498(A) of the IPC. An event of the past can be relevant for purpose of continuity of the offence. The legislative intent is clear enough. A reference to explanation is apt. If there is a series of acts in order to cause harassment within the meaning of explanation (b), the latest would be relevant to bring home the charge of Section 498A of the IPC against the accused person. Acquittal from the charge under Section 306 of the IPC as by itself cannot be a ground for acquittal from the charge under Section 498A of the IPC. Some cogent evidence is required to bring home the charge under Section 498A of the IPC as well, without which the charge cannot be said to have been proved. The decision as rendered by this court in Nishi Kanta Das and Others vs. State of Tripura reported in (2015) 1 TLR 1036 has been relied on. In that report, this court had observed that to bring home the charge under Section 304B of the IPC, the following essential ingredients are to be proved:

(1) the question before the court must be whether the accused has committed dowry death of the woman - which means the pre-assumption can only be raised if the accused is being tried for the offence punishable under Section 304B of the IPC.

(2) the woman was subjected to cruelty or harassment by or husband or his relatives.

(3) such cruelty or harassment was for or in connection with any demand for dowry, and

(4) such cruelty or harassment was caused soon before her death.

[44] In State of Rajasthan Vs. Tik Bahadur and Others reported in (2004) 13 SCC 300 it has been held as under :

"The expression "soon before" is very relevant where Section 113B of the Evidence Act and Section 304B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by the prosecution. "Soon before" is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113B of the Evidence Act. The expression "soon before her death" used in the substantive Section 304B IPC and Section 113B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression "soon before" is not defined. A reference to the expression "soon before" used in Section 114 illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods "soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for their possession". The determination of the period which can come within the term "soon before" is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression "soon before" would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence." [Emphasis supplied]

[45] On appreciation of the evidence what surfaces is that the fact of quarrel in the preceding day [some of the witnesses have deposed that the quarrel took place at night] has been shrouded by doubt for the reason that the statements made by the witnesses are either hit by hearsay rule or by incoherence. Thus, that fact cannot be relied. Moreover, in view of the decision of the apex court in Appasaheb (supra) the demand as placed by the appellants, namely Golap Jan Bibi may not come within the definition of the dowry. Even though the death is unnatural as the deceased had hanged her to bring her life to an end, but unless the other ingredients were available, the conviction under Section 304(B) cannot be returned. Moreover, in view of consolidation of presumption of innocence for acquittal of the appellants from the charge under Section 304B of the IPC, this court is reluctant to disturb the order of acquittal for absence of overriding evidence favouring the prosecution. Thus, the appeal being Crl. A. No.14 of 2019 (Md. Nur Uddin vs. State of Tripura) stands dismissed. This court finds further that though there was an allegation that an unlawful demand for realizing a sum of Rs.60,000/- was raised, but it has surfaced in the evidence, the same was raised for constructing house by the appellants. Except PW1, no witness came forward to support the fact of unlawful demand barring PWs 4, 5 and 6.

[46] PW4, however, has stated that on demand of money for construction of separate house the deceased was subjected to torture but this witness does not say whether he himself has witnessed such assault or not. PW5 has also similarly stated, but he has not disclosed the source of his information. Similarly, PW6 also did not disclose the source of his information in respect of the demand of „dowry‟.

Thus, this court is constrained to observe that based on the nature of evidence, the conviction under Section 498A of the IPC is totally unwarranted and the benefit of doubt, therefore, would be available to the accused person.

[47] Having observed thus, the appellants in Crl. A. No.30 of 2016 [Md. Samajid Ali and Another Vs. State of Tripura] are acquitted from the charge under Section 498A of the IPC on benefit of doubt. As consequence of such findings, the impugned judgment and order of conviction and sentence dated 24.08.2016 delivered in ST/T-2/0000008/2015 by the Sessions Judge, North Tripura, Dharmanagar are set aside and quashed.

[48] In the result, the said appeal stands allowed. Send down the LCRs forthwith.