UDAY CHAKRABORTY & ORS.versusSTATE OF WEST BENGAL

                       [2010] 7 S.C.R. 1048


A                UOAY CHAKRABORTY & ORS.
                                 v.
                   STATE OF WEST BENGAL
               (Criminal Appeal No. 1733 of 2008)

                           JULY 8, 2010
B
     [D~.   B.S. CHAUHAN AND SWATANTER KUMAR, JJ.]

        PENAL CODE, 1860:

c      ss. 304-B and 498-A - Dowry death - Conviction of
  husband and his relatives -Plea that FIR not containing any
  allegation of demand of dowry, ingredients of offences
  charged were not satisfied - HELD: Although the father of the
  deceased who lodged the complaint in a tragic moment did
0 not elaborate and specified the facts, the subsequent
  statements of different witnesses have fairly established that
  the deceased was tortured and harassed for dowry - Execution
  of ' Chuktiparta' at the time of marriage itself demonstrates
  that there was a clear intention on the part of accused to take
E dowry in and as consideration for marriage - The cumulative
  effect of the ~ocumentary and oral evidence clearly shows that
  the accused have been rightly found guilty of the offence by
  the High Court - Sentencing.

       s.304-B - Expression 'soon before her death' - HELD:
F Has to be given its due meaning, as the Legislature has not
  specified any time in the provision - The concept of
  reasonable time would be applicable - In the instant case,
  marriage having not survived even for a period of two years,
  the entire period would be a relevant factor in determining the
G issue - Doctrines - Concept of reasonable time.

        CODE OF CRIMINAL PROCEDURE, 1973:

      s. 161 - Recording of statements afresh by new
  Investigating Officer on transfer of investigation to CID -
H                             1048
UDAY CHAKRABORTY & ORS. v. STATE OF WEST 1049
               BENGAL
HELD: Once the direction was giveri to conduct the                A
investigation afresh, there is no error in the JO examining the
witnesses afresh - Penal Code, 1860 - ss. 304-B and 498-
A.

    SENTENCING:                                                   B
     Quantum of punishment - Seven years RI awarded by
High Court to accused for offence punishable uls 304-B /PC
- HELD: The sentence being the minimum under the
provision, plea for reduction of sentence has no merit - Penal
Code, 1860 - s.304-B.                                             C

    WORDS AND PHRASES:

    Expression 'soon before her death' occurring in s.304-B
/PC - Connotation of.
                                                                  D
     Within two years of the marriage of appellant no. 1,
his wife died of burn injuries in her matrimonial home. On
the complaint of PW-1, the father of the bride, an FIR was
registered and the investigation ultimately culminated in
the filing of challan against the husband, the sister-in-law,     E
two brothers-in-law, the father-in-law and the mother-in-
1aw of the deceased for commission of offences
punishable u/ss 304-B and 498-A IPC. During the trial, the
father-in-law of the deceased died. The trial court
convicted the remaining accused of the offences charged           F
and sentenced each of them to 7 years RI. On appeal, the
High Court acquitted the sister-in-law and one brother-
in-law of the deceased.

    In the appeal filed by the convicts, it was primarily         G
contended for the appellants that in the instant case
ingredients of the offences punishable u/ss 304-B and
498-A IPC were not satisfied. It was submitted that the
complaint lodged by PW-1 did not contain any allegation
of demand of dowry and, therefore, there was no basis
to prosecute the appellants.                                      H
    1050 'SUPREME COURT REPORTS               [2010] 7 S.C.R.


A       Dismissing the appeal; the Court

         HELD: 1.1The cumulative effect of the documentary
    and oral evidence on record clearly shows that the
    appellants have been rightly found by the High Court
8   guilty of the offence charged. The father of the girl who
    lodged the complaint, can hardly be blamed for not
    lodging an elaborate and specific complaint immediately
    after the death of his daughter, as it was a tragic moment
    for him. The subsequent statements of different
C   witnesses have fairly established that the deceased was
    tortured and harassed for dowry. The Court is of
    considered view that execution of the "Chuktiparta" itself
    demonstrates that there was a clear intention on the part
    of the appellants to take dowry in and as consideration
    for marriage. Gifts were given at the time of marriage and
D   some items were also agreed to be given subsequent to
    the marriage. This itself would be an appropriate fact to
    be taken into consideration and is, in any case,
    completely in line with the case of the prosecution. The
    offence u/s 3048 read with s.498A IPC is made out and
E   has been proved by the prosecution beyond any
    reasonable doubt. [para 4 and 5] [1057-D-H]

       Hazarilal v. State of Madhya Pradesh 2007 (7)
  SCR 1081 = (2009) 13 SCC 783; and Aru/velu v. State 2009
F (14) SCR 1081 =(2009) 10 SCC 206 - held inapplicable.
       1.2.The expression 'soon before her death' used in
  s.304 IPC has to be given its due meaning as the
  legislature has not specified any time which would be the
  period prior to death, that would attract the provisions of
G s. 304-8 IPC. The concept of reasonable time would be
  applicable, which would primarily depend upon the facts
  of a given case, the conduct of the parties and the impact
  of cruelty and harassment inflicted upon the deceased in
  relation to demand of dowry to the cause of unnatural
H death of the deceased. In the considered view of the
UDAY CHAKRABORTY & ORS. v. STATE OF WEST 1051
               BENGAL

Court, the marriage itself having not survived even fo.r::a . 'is.
period of two years, the entire period would be a relev~
factor in determining such an issue. [para 4) [1059-8-b]
    1.3. It cannot be said that the Investigating Officer
(PW-30), who took over the investigation at the
                                                             8
subsequent stage upon transfer of investigation to the
CID, had no jurisdiction to record fresh statements of
witnesses and ought to have relied upon and referred
only to the statements recorded u/s 161 Cr. PC by the
earlier Investigating Officer. Firstly, it is the settled
principle of law that statements u/s 161 Cr.P.C. recorded C
during the investigation are not substantive piece of
evidence but can be used primarily for a very limited
purpose, that is, for confronting the witnesses. Secondly,
when the case was transferred to CID for investigation,
it obviously meant that, in. the normal course, the D
authorities were not satisfied with the conduct of
investigation by PW 31 and considered it appropriate to
transfer the investigation to a specialized branch i.e. CID.
Once, the direction was given to PW 30 to conduct
investigation afresh, there is no error of jurisdiction or E
otherwise committed by him in examining the witnesses
afresh and filing the challan u/s 173 Cr PC. [para 6) [1059-
G-H; 1060-A-F]
    1.4The prayer for reduction of sentence has no merit.
                                                                 F
The minimum sentence provided for an offence
punishable u/s 3048 IPC is 7 years of rigorous
imprisonment, and that is the sentence awarded by the
High Court in the instant case. [para 7] [1060-E-G]
                     Case Law Reference:                        G
     2007 (7) SCR 1081           held inapplicable para 4
     2009 (14) SCR 1081          held inapplicable para 4
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1733 of 2008.                                                H
    1052    SUPREME COURT REPORTS                [2010) 7 S.C.R.


A       From the Judgment & Order dated 18.04.2007 of the High
    Court at Calcutta in C.R.A. No. 122 of 2003.

        Rauf Rahim for the Appellants.

        Tara Chandra Sharma for the Respondent.
B
        The Judgment of the Court was delivered by

        SWATANTER KUMAR, J. 1. The learned Additional
  Sessions Judge, Arambagh convicted all the five accused
C persons namely, Uday Chakraborthy, Smt. Anandamoyee
  Chakraborthy (Appellant No. 3), Sukumar Chakraborthy
  (Appellant No. 2), Smt. Bela Rani Chakraborthy (Bhattacharjee)
  and Madhab Chakraborthy for an offence punishable under
  Sections 498A/3048 of the Indian Pnnal Code (hereinafter
  referred to as 'IPC') and sentenced them for 7 years rigorous
0
  imprisonment. No separate sentence was awarded under
  Section 498A of IPC on the ground that the accused persons
  were awarded sentence for the substantive offence of murder
  under Section 304B of IPC. Aggrieved from this judgment, the
  accused persons preferred an appeal before the High Court
E of Calcutta and the Bench allowed their appeal in part and order
  of conviction and sentence passed against Madhab
  Chakraborthy and Bela Rani Chakraborthy (Bhattacharjee) was
  set aside. However, the conviction and sentence of Uday
  Chakraborthy, Sukumar Chakraborthy and Smt. Anandamoyee
F Chakraborthy was confirmed vide its judgment dated 18th of
  April, 2007. Aggrieved therefrom these three appellants have
  filed the present appeal before this Court under Article 136 of
  the Constitution of India praying for setting aside the order of
  conviction and sentence and for an order of acquittal.
G
        2. Now, we may examine the facts giving rise to the
  present appeal. One Ms. Mina was married to Uday
  Chakraborthy on 5th of June 1994. The appellant No. 2 is the
  brother-in-law while appellant No. 3 is mother-in-law of
H deceased Mina. According to the case of the prosecution,
 UDAY CHAKRABORTY & ORS. v. STATE OF WEST 1053
       BENGAL [SWATANTER KUMAR, J.]

Kanailal, the father of the girl, Mina, who was later examined      A
as PW 1 lodged a written complaint to the Officer-in-Charge,
Police Station, Arambagh, Hooghly on 19th April, 1996. The
complaint reads as under:-
    "To
    The O.C. Arambagh Police Station,                               B
    Arambagh, Hooghly.
    Sir,

           My humble submission is that, I gave my daughter
    Mina's marriage with Uday Chakraborty, elder son of Sri         C
    Lakshminarayan Chakraborty of village & P.O. Golta, P.S.
    Arambagh, District Hooghly two years before. Frequently
    after her marriage her father-in-law, mother-in-law, sister-
    in-law and the brothers-in-laws used to torture my daughter
    both physically and mentally, because my son-in-law did         D
    not stay at the house. I went to my daughter's house for a
    few times. I requested her father-in-law, mother-in-law and
    other members of the family. I arranged for the settlement
    of the quarrel. After that suddenly on the last 18.4.96 (Eng)
    she had a feud with her husband Udaychand Chakraboty,           E
    father-in-law-Sri, Lakshminarayan Chakraborty, sister-in-
    law-Belarani Chakborty (Banerjee) and brother-in-law-
    Sukumar Chakraborty at her father-in-law's house and the
    aforesaid persons admitted her at Arambagh
    Subdivisional Hospital after burning her on the last night,     F
    and my daughter died at that night only. My firm confidence
    is that the household members at her in-law's place
    forcibly burnt my daughter to death. Therefore, I humbly
    pray before you to arrange for the punishment of such
    heinous criminals by the law and request reveals the actual     G
    reason of the death of my daughter.

                                                Yours faithfully,
                                   Sd/- Kanailal Bhattacharya"

    xxx       xxx    xxx     xxx                                    H
    1054    SUPREME COURT REPORTS                  [2010] 7 S. C.R


A           The couple has not even completed a period of two years
    of their marriage when, on 18th April, 1996, it was alleged that
    because of dowry, the accused and other family members
    tortureid Mina physically and mentally and forcibly burnt her. She
    was taken to hospital in emergency ward and examined by Dr.
B   Subhsh Hazra, PW 29. At that time she was conscious and able
    to speak. The parents of Mina were informed on that very date.
    Unfortunately, Mina expired on 19.4.1996 at 5.30 AM. It was
    noticed on the prescription written by Dr. Subhamoy Sidhanta,
    PW 19, that the burn was accidental. After receiving the
c   complaint and registering the FIR (Ex.12}, K.K. Hazra, the
    Investigating Officer (PW-31} started inquest proceedings and
    her body was subjected to post-mortem, which was conducted
    by Dr. Mona Mukherjee (PW-18}, who declared the cause of
    death, as death due to deep burn injury. On 11.5.1997, the
D   investigation was transferred to another Investigating Officer
    when PW 31 was transferred from that police station. However,
    because of certain lacuna in investigation or even otherwise, it
    appears that on 4th of June 1997, the investigation of the case
    was transferred to CID and Amal Biswas (PW 30} ·was
E   appointed as the new Investigating Officer. After investigating
    the matter and examining number of witnesses, the Investigating .
    Officer filed the charge sheet against 6 persons namely, Uday
    Chakraborthy (husband}, Lakshmi Narayan (father-in-law},
    Sukumar Chakraborthy (brother-in-law}, Madhab Chakraborthy
    (brother-in-law}, Anandmoyee Chakraborthy (mother-in-law)
F   and Bela Rani Chakraborthy (Bhattacharjee} (sister-in-law), in
    the Court for an offence under Sections 3048 and 498A of IPC
    on 31st October, 2000. The statement of accused persons
    under Section 313 of the Code of Criminal Procedure
    (hereinafter referred to as 'Cr.P .C .') was recorded in August
G   2002. During the pendency of the proceedings, accused
     Lakshmi Narayan had expired and, therefore, proceedings
     against him abated. The learned Sessions Court found all the
     five accused persons guilty under Sections 498A/304B of IPC
     and sentenced them accordingly. Aggrieved therefrom, the
H    accused preferred an appeal in the High Court. The High Court
 UDAY CHAKRABORTY & ORS. v. STATE OF WEST 1055
       BENGAL [SWATANTER KUMAR, J.]

acquitted two persons a11d convicted three persons, who have           A
filed the present appeal before this Court.

      3. The main argument addressed before this Court by the
appellant is that the learned Trial Court as well as the High
Court have failed to examine that the ingredients of the offence
                                                                       B
under Sections 3048 and 498A of IPC were not satisfied in
the present case and as such they could not be held guilty of
the said offences. The complaint lodged by the father of the
deceased did not contain any allegation of demand of dowry,
therefore, there was no basis whatsoever to prosecute the
appellants. The judgments of these courts suffer from basic            C
infirmity of law. In the alternative, it was also contended that the
entire family of the appellant has been behind the bars for a
considerable time and thus, the appellants could be released
on the basis of the sentence already undergone by them. We
are unable to find any merit in either of the contentions raised       D
on behalf of the appellants. According to the father of the
deceased (PW-1), at the time of marriage he had given the gifts
and cash amount which were reduced in writing, however, a
sum of Rs. 10,000/- remained to be given subsequently. The
statement of PW 1 was fully corroborated by Shyam Sunder,              E
the younger brother of deceased (PW 2), who specifically
referred to the recording of "Chuktiparta". There is no dispute
raised during the trial and even now that Mina had died
because of burn injuries and she caught fire at the matrimonial
home. Even, during the course of hearing, there was hardly any         F
dispute that a "Chuktiparta" was written prior to or at the time
of marriage. However, according to the appellants there was
no reference of the gold chain in that "Chuktiparta". It is the
contention of the appellants that the prosecution witnesses have
made improvement on their statements subsequently and have             G,
added the description of the gold chain. Thus, the story of the
prosecution is unbelievable.

    4. The marriage itself has suNived for a period of less than
two years and PW-7, who appeared as prosecution witness,
                                                                       H
    1056    SUPREME COURT REPORTS                 [2010] 7 S.C.R.


A was working as water carrier during the marriage ceremonies
  of the parties. The complaint by PW 1, of course, did not refer
  to particular items, but it was categorically stated in the
  complaint that after the marriage, the father-in-law, mother-in-
  law, sister-in-law and brother-in-laws used to torture Mina both
B physically and mentally because his son-in-law did not stay at
  the house and he had even tried to settle the issue and
  according to him, she was forcibly burnt by the appellants. It is
  true that in the complaint, specific allegations of demand and
  dowry have not been made, but during the course of
c investigation these facts have come to light from the evidence
  on record and from statements of various persons made to that
  effect. The question of the father (PW-1) having not given
  correct and detailed information, has been dealt with by the
  High Court and, in that reference, the following lines have been
  recorded:
0
        "Ld. Advocate for the appellants vehemently argued that
        this claim of demand of dowry by the accused persons is
        nothing but an afterthought, since there was no such
        mention in the First Information Report. In this respect, he
E       has placed reliance upon the decision reported in AIR
        1975 SC page 1026 (Ram Kumar Pande-vs.-State of
        Madhya Pradesh), wherein it has been held by the Hon'ble
        Apex Court that omission of important facts, affecting
        probabilities of the case are relel,(ant under Section 11 of
F       the Evidence Act in judging the veracity of the prosecution
        case. So far as the present case is concerned, there
        cannot be any doubt that there was no mention of the dowry
        claim in the First Information Report. Naturally, this
        omission must be treated to be an important factor for
G       judging the veracity of the prosecution case. But whether
        only because of this omission it can be said that the entire
        prosecution case should be disbelieved, that is to be
        considered after considering the other circumstances of
        the case. So far as this case is concerned, it appears that
        the First Information Report was lodged by the de facto
H
 UDAY CHAKRABORTY & ORS. v. STATE OF WEST 1057
       BENGAL [SWATANTER KUMAR, J.]

     complainant, who is the father of the deceased, few hours         A
     after the death of the deceased. We can very well imagine
     the mental condition of the bereaved father while he was
    .dictating the written complaint to another person. In fact, if
     we look into the evidence of this de facto complainant, then
     it will appear that he has also stated in his evidence to the     B
     effect, "As I was mentally upset so I could not write each
     and every thing elaborately in the First Information Report
     like demand of dowry, rest cash of Rs. 10,000/- or gold
     chain and more dowry or Rs. 20,000/- for the purpose of
     business by Uday." The explanation as given by the PW 1           c
     in this respect appears to be proper and satisfactory and
     I think that the Id. Trial Judge was perfectly justified is not
     giving much importance up-on this omission in the First
     Information Report."

      4. The prosecution has examined as many as 31                    D
witnesses including the Investigating Officer, Doctors, servants
of the family and relatives of the deceased. The cumulative
effect of the documentary a.nd oral evidence on record clearly
shows that the appellants have been rightly found guilty of the
offence by the High Court. The Learned Counsel appearing for           E
the appellant has not been able to bring to our notice any
evidence or piece of material thereof which has not been
considered by the Courts below in its correct perspective. The
mere fact that "Chuktiparta" does not contain some items of
dowry which have been referred by PW 2 in his statement given          F
in the Court, would not give any advantage to the appellants,
in the facts of the present case. The father of the girl who
lodged the complaint, can hardly be blamed for not lodging an
elaborate and specific complaint at that time, as it was a tragic
moment for him being the period immediately after the deatA            G
of his daughter. That time was of pain and agony for him and
the accused can not take any advant~ge of this submission or
fact, as the subsequent statements of different
                                        I
                                                 witnesses have
fairly established on record that she was tortured and harassed
for satisfying the demand of dowry. We are of the considered           H
    1058    SUPREME COURT REPORTS                  (2010] 7 S.C.R.


A view that execution of the "Chuktiparta" itself demonstrate that
  there was a clear intention on the part of the appellants to take
  dowry in and as consideration for marriage. Gifts were given
  at the time of marriage and some items were also agreed to
  be given subsequent to the marriage. This itself would be an
B appropriate fact to be taken into consideration and is, in any
  case, completely in line with the case of the prosecution. The
  learned counsel appearing for the appellants relied upon the
  case of the Hazarilal v. State of Madhya Pradesh. ((2009) 13
  SCC 783]. This was a case which fell in the class of cases
c whme, the Court recorded the finding of conviction on the basis
  of surmises and conjectures. The Trial Court have acquitted
  accused on the basis, that after giving birth to a child in the
  normal course she could not have entertained the idea of
  committing suicide unless she was being harassed. This
  judgment of the Court has no application on facts and law to
0
  the case in hand. The use of expression 'could have been' or
  drawing of a presumption of a fact does not arise in the present
  case, as the prosecution has been able to establish its case
  beyond reasonable doubt. The death, as already noticed, is not
E disputed and large number of witnesses have made specific
  allegations of dowry demand and the harassment to which the
  deceased was being subjected during the short period for
  wti.ich the marriage survived. We are also unable to find any
  merit in the contention of the learned counsel for the appellants
  who relied upon the judgment of this Court in Arulvelu v. State
F [(2009) 10 SCC 206], to contend that the findings of the trial
  court as well as the High Court are perverse finding as they
  were against the weight of evidence as well as against the
  evidence itself. There cannot be a dispute with regard to the
  legal preposition advanced on behalf of the appellant in the
G facts of the present case, the judgment is hardly of any avail to
  the appellants. By and large the statement of prosecution
  witnesses are on similar lines and all the material and crucial
  aspects stand duly corroborated. Particularly, the statements
  of the father of the deceased, relatives of the deceased and
H the Investigating Officer, when examined in their entirety, clearly
 UDAY CHAKRABORTY & ORS. v. STATE OF WEST 1059
       BENGAL [SWATANTER KUMAR, J.]

established the charge against the appellants. Thus, we have        A
no hesitation in dispelling the argument of the appellants. The
offence under Sections 3048 read with 498A of IPC is made
out in this case and has been proved by the prosecution beyond
any reasonable doubt. The period of two years in a marriage
itself is a very short period. In fact, the deceased had died in    s
less than two years of marriage. The expression 'soon before
her death' has to be given its due meaning as the legislature
has not specified any time which would be the period prior to
death, that would attract the provisions of section 3048 of IPC.
The concept of reasonable time would be applicable, which           c
would primarily depend upon the facts of a given case, the
conduct of the parties and the impact of cruelty and harassment
inflicted upon the deceased in relation to demand of dowry to
the cause of unnatural death of the deceased. In our considered
view, the marriage itself has not survived even for a period of
                                                                    0
two years, the entire period would be a relevant factor in
determining _such an issue.                                     ·

     5. The Court has to examine the cumulative effect of the
evidence on record and analyze the same in its true context.
Once, the appellant had ensured execution of "Chuktiparta" at       E
the time of marriage then this itself would fully support the
version of the prosecution and statement of witnesses that there
was demand of dowry. These statements cannot fall outside the
zone of consideration for the Courts, in the present case. It
cannot be said that the 'Chuktiparta" executed at the time of       F
marriage is not a material and relevant piece of evidence and
cannot be relied upon or taken into consideration by the Courts.

     6. Learned counsel appearing on behalf of the appellants,
with some emphasis, contended that the Investigating Officer        G
(PW-30), who took over the investigation at the subsequent
stage upon transfer of investigation to the CID, ought to have
relied and referred only to the statements recorded under
Section 161 of Cr. PC by the earlier Investigating Officer. In
other words, he had no jurisdiction to record fresh statement       H
    1060     SUPREME COURT REPORTS                   [2010] 7 S.C.R.

A of the witnesses. We do not find any force even in this
  argument. Firstly, for the reason that it is settled principle of law
  that the statements under Section 161 of Cr.P.C. recorded
  during the investigation are not substantive piece of evidence
  but can be used primarily for a very limited purpose that is for
B confronting the witnesses. If some earlier statements were
  recorded under Section 161 Cr.P.C. then they must be on the
  police file and would continue to be part of police file. However,
  if they have been filed on judicial record they would always be
  available to the accused and as such no prejudice is caused
C to anyone. Secondly, when the case was transferred to CID for
  investigation, it obviously meant that in the normal course, the
  authorities were not satisfied with the conduct of the
  investigation by PW 31 and considered it appropriate to
  transfer the investigation to a specialized branch i.e. CID. Once,
D the direction was given to PW 30 to conduct the investigation
  afresh and in accordance with law, we see no error of
  jurisdiction or otherwise committed by PW 30 in examining the
  witnesses afresh and filing the charge sheet under Section 173
  of Cr.P.C. stating that the appellants and other accused had
  committed the offence and were liable to face trial under
E Sections 3048 and 498A of IPC. The last contention raised on
  behalf of the appellant is that the accused, even if found guilty
  by this Court, could be now released on the basis of sentence
  already undergone, in other words, the prayer is for reduction
  of sentence. This contention has no merit and can be noticed
F only for the purpose of being rejected. The minimum sentence
  provided under law for an offence under Section 3048 of IPC
  is 7 years of rigorous imprisonment and that is the sentenced
  awarded by the High Court. Thus, the question of accepting this
  contention, raised before this Court, does not arise even for
G consideration.

        8. For the aforesaid reasons, we find no merit in the
    appeal and hence, the appeal is dismissed.

    R.P.                                         Appeal dismissed.
H