Halder @ Babu Halder & Ors Vs. State of West Bengal  Insc 294 (19 March
Dr. ARIJIT PASAYAT & S.H. KAPADIA
(Arising Out of S.L.P (Crl.) No.1580 of 2006) Dr. ARIJIT PASAYAT, J.
Appellants call in question legality of the judgment rendered by a Division
Bench of the Calcutta High Court dismissing the appeal filed by the appellants,
but modifying the sentence. Appellants faced trial for commission of offences
punishable under Section 304B read with Section 34 of the Indian Penal Code,
1860 (in short the 'IPC') and Sections 3 and 4 of the Dowry Prohibition Act,
1961 (in short the 'DP Act').
The prosecution version in brief is as follows:
Rupali, sister of informant Dilip Patra (PW-1) was married to appellant Biswajit
Halder-appellant no.1 on 6th March, 1992. Appellants Dulal Chandra Halder and
Maya Halder are the parents of Biswajit. At the time of marriage dowry i.e. of
Rs.43,000/-, gold ornaments and the household articles were given to the
appellants, but they were not satisfied with the dowry items. Since marriage Rupali
was put under pressure to bring one colour television, English Khat and VIP bag
for her father-in-law and other relatives. Rupali time and again had reported
about the persistent demand of the appellants to her father and brothers. Rupali's
brother (PW-1) on different occasions requested the appellants not to harass Rupali
for non-payment of those items. On 27th July, 1992 Rupali committed suicide at
the house of the appellants by consuming poison and after getting the sad news
from his relatives, PW-1, who being a member of Indian Armed Forces was posted
at Punjab, came to his native village and lodged the FIR on 6th August, 1992.
On receipt of the FIR, police started investigation and on completion of investigation,
charge sheet was submitted against the appellants for their trial.
The learned Additional Sessions Judge, after framing charges against all the
three appellants examined 17 witnesses in all, including PW-1, relatives of the
victim woman, two doctors and the investigating officer.
On examination of the prosecution evidence and after hearing both the
prosecution and defence, the learned Additional Sessions Judge found sufficient
materials against all the appellants to convict them for offences punishable
under Sections 304B/34 and 498A/34 of the IPC and also under Sections 3 and 4
of the DP Act.
Learned trial Judge, after convicting the appellants, sentenced them to
suffer rigorous imprisonment for ten years each for the offence punishable under
Section 304B of the IPC. The appellants were sentenced to suffer rigorous
imprisonment for one year each and to pay a fine of Rs.1,000/-for the offence
punishable under Section 498A of the IPC. In default of the payment rigorous
imprisonment for three months was stipulated. Learned trial Judge also
sentenced the appellants to suffer rigorous imprisonment for five years each
and to pay a fine of Rs.15,000/- each under Section 3(1) of the DP Act and that
apart, the appellants were also sentenced to suffer rigorous imprisonment for
six months each and to pay a fine of Rs.10,000/-each for the offence under
Section 4 of the DP Act with default stipulation. Learned trial Judge directed
that all the sentences were to run concurrently.
Questioning correctness of the conviction and the sentences imposed
appellants preferred appeal before the Calcutta High Court which held that the
appellants were to suffer the minimum sentence as prescribed under Section 304B
IPC, but there was no necessity for separately sentencing the appellants on
either Section 498A IPC or Sections 3 and 4 of the DP Act.
In support of the appeal, learned counsel for the appellants submitted that
there was no finding that there was demand for dowry and/or that deceased was
subjected to cruelty or harassment, or that harassment was for or in connection
with the demand of dowry.
Leaned counsel for the respondent on the other hand submitted that Section
304B IPC has to be read in the context of Section 113B of the Indian Evidence
Act, 1872 (in short 'Evidence Act'). The court could presume the death of the
deceased to be dowry death and it was open to the Court to presume further that
the appellants being members of the matrimonial home at the relevant were
responsible for the dowry death of the deceased. Reliance was placed on a
decision of this Court in Smt. Shanti and Anr. v. State of Haryana (AIR 1991 SC
The basic ingredients to attract the provisions of Section 304B are as
follows:- (1) The death of a woman should be caused by burns or fatal injury or
otherwise than under normal circumstances;
(2) Such death should have occurred within seven years of her marriage;
(3) She must have been subjected to cruelty or harassment by her husband or
any relative of her husband; and (4) Such cruelty or harassment should be for
or in connection with demand for dowry.
Alongside insertion of Section 304B in IPC, legislature also introduced
Section 113B of Evidence Act, which lays down when the question as to 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 appended to Section 113 B lays down that "for the purpose
of this section 'dowry death' shall have the same meaning as in Section 304 B
If Section 304 B IPC is read together with Section 113 B of the Evidence
Act, a comprehensive picture emerges that if a married woman dies in an
unnatural circumstances at her matrimonial home within 7 years from her
marriage and there are allegations of cruelty or harassment upon such married
woman for or in connection with demand of dowry by the husband or relatives of
the husband, the case would squarely come under "dowry death" and
there shall be a presumption against the husband and the relatives.
In this case we find that there is practically no evidence to show that
there was any cruelty or harassment for or in connection with the demand of
dowry. There is also no finding in that regard. This deficiency in evidence
proves fatal for the prosecution case. Even otherwise mere evidence of cruelty
and harassment is not sufficient to bring in application of Section 304B IPC.
It has to be shown in addition that such cruelty or harassment was for or in
connection with the demand for dowry. (See: Kanchy Ramchander v. State of A.P.
(1996 SCC (Crl.) 31). Since the prosecution failed to prove that aspect, the
conviction as recorded cannot be maintained.
The appeal is allowed.