Research › Search › Judgment

Gauhati High Court · body

2011 DAILYLAW 220 (GAU)

Biplab Chakraborty v. State of Tripura

2011-03-16

UTPALENDU BIKAS SAHA

body2011
JUDGMENT U.B. Saha, J. 1. The instant criminal appeal is filed by three Appellants namely, Sri Biplab Chakraborty, Smt. Maya Chakraborty and Smt. Sima Chakraborty challenging the judgment dated 09.04.2009 and the order of sentence dated 13.04.2009 in ST-13(ST/J)/2008 passed by the learned Sessions Judge, South Tripura, Udaipur convicting the Appellants under Sections 498A/304B IPC and sentencing the Appellant Biplab to suffer SI for 8 years for the offence committed under Section 304B IPC and further SI for 2 years for the offence committed under Section 498A IPC with a fine of Rs.1,000/- , in default of payment of fine to suffer further RI for two months and sentencing the Appellants Maya and Soma to suffer SI for 7 years for the offence committed under Section 304B IPC and to suffer SI for 1 year for the offence committed under Section 498A with a fine of Rs.500/- each and in default of payment of fine to suffer further SI for one month each. During the pendency of the appeal, Appellant No. 2 Smt. Maya Chakraborty expired. Now the instant appeal is for decision of the grievances of the Appellant Nos. 1 and 3, i.e. Sri Biplab Chakraborty and Smt. Maya Chakraborty. 2. Heard Mr. S Talapatra, learned senior counsel assisted by Mr. S Chakraborty, as well as Mr. I Banik, learned Counsel for the Appellants and Mr. A Ghosh, learned Addl. PP appearing for the State Respondent. 3. Prosecution case in brief is as follows: That the marriage of victim Soma Chakraborty, the only daughter of PW2, Smt. Mira Chakraborty of village-Kathalia under Sonamura PS was solemnized with accused Biplab about 4 years back according to Hindu rites and customs and thereafter they led a happy conjugal life for about 2/3 months. After 2/3 months of their marriage, husband Biplab Chakraborty, mother-in-law Smt. Maya Chakraborty and sister-in-law Smt. Sima Chakraborty put pressure upon her to bring cash of Rs.1 lakh as dowry from her parents and since the amount could not be paid to them according to their demand they started torturing her and subjected her to all sorts of cruelty, both mental and physical, for dowry and such torture was communicated to her parents. 4. 4. PW2, mother of the victim had tried to console her daughter and also requested her son-in-law, accused Biplab not to torture her for such demand of dowry, but her request was not materialized by the accused person. On 09.05.2007 in the morning, at around 11/12 a.m. one unknown person informed the parents of the victim, PW2 and PW3 over telephone that their daughter fell sick and on hearing the same they rushed to Udaipur, Tripurasundari Hospital, where Soma was admitted and found that their daughter had already expired. The informant, PW2 suspected that the accused-Appellants had killed her daughter for non-fulfillment of the demand of dowry and accordingly, she lodged a complaint with the Officer-in-Charge of the R.K. Pur P.S. narrating the entire incident and on the basis of that complaint a case being No. 118/2007 under Section 498A IPC was registered at the R.K. Pur PS and the Sub-Divisional Police Officer, Sri Rati Ranjan Debnath, PW19 was entrusted for investigation and after completion of investigation he submitted charge sheet against all the three accused persons, who filed the instant appeal before this Court for the offence punishable under Section 498A/304B IPC showing mother-in-law, Smt. Maya Chakraborty and sister-in-law, Smt. Sima Chakraborty as absconders. 5. As the alleged offence is triable by a Sessions Court the case was committed by the learned CJM vide his order dated 25.04.2008 to the Court of Sessions for trial. 6. The learned trial court after hearing the accused persons framed charges against them under Section 498A and 304B of the IPC and proceeded with the trial. In order to prove its case, prosecution examined 19 witnesses in all and also relied upon some documents which were marked as exhibits 1 to 6. The accused-Appellants in their defense adduced no evidence as their case before the trial court was of total denial. 7. Though it appears from the trend of the cross that the defense tried to make out a case that the deceased victim, Soma took poison on her own and committed suicide and thus the said death is an unnatural one and not homicide, the learned trial court on assessment of evidence of prosecution witnesses, mainly relying upon the evidence of PW2 and PW12 convicted the Appellants and sentenced them to suffer the punishment as stated supra. 8. Mr. 8. Mr. Talapatra, learned senior counsel while praying for setting aside the order of conviction and sentence passed by the learned trial court would contend that the Appellant No. 2, mother-in-law of the victim, Smt. Maya Chakraborty though died on 15.08.2009 at Agartala Medical Hospital and BGP Hospital, but the order of conviction remains which is required to be interfered with by this Court while considering the appeal of the remaining Appellants. He further contended that the prosecution examined 19 witnesses but the trial court mainly relied upon PW2, mother of the victim and PW12, Smt. Sabitri Chakraborty, aunt (sister of the father of the victim). 9. Mr. Talapatra while placing reference to the evidence of prosecution witnesses submits that for an offence under Section 498A/304B IPC the prosecution has to prove that the alleged cruelty, if any, was on the demand of dowry and also just immediate before the death which is totally absent in the prosecution evidence. Even PW2, the mother of the victim in her cross specifically stated that she did not mention that she paid Rs.1 Lakh as dowry and subsequently she also paid Rs.20,000/- to the accused Appellants as dowry in her Ejahar. Therefore, such statement before the trial court for the first time cannot be treated as evidence being such statements are the improved version. She also stated before the trial court that she did not state the aforesaid facts to the investigating officer of the case while her statement was recorded under Section 161 of the Code of Criminal Procedure. He again submitted that when the payment of dowry, as stated by PW2, does not remain intact, question of payment of dowry, as alleged, also does not remain. 10. Mr. Talapatra again placed the evidence of PW2 wherein she stated that she stayed in her daughter's house 2/3 days prior to her death and she also talked with her daughter over telephone prior to 2/3 days of her death but she did not disclose anything before the trial court that prior to death of her daughter, at any time she disclosed to her regarding the alleged torture on her by the accused persons, which comes within the definition of cruelty as defined in explanation clause, of Section 498A. His another contention before this Court is that the evidence of PW2 and PW12 in no way fulfill the prescription of Section 32 of the Indian Evidence Act and cannot be relied upon by the Court. 11. Referring to the evidence of PW3, Mr. Talapatra submits that PW3 Badal Chakraborty being the husband of PW2, Smt. Mira Chakraborty and father of the victim deceased, in his statement categorically stated that his daughter did not disclose anything to him as she did not get any chance as her mother-in-law and others used to guard her. He came to know about the mental and physical torture on his daughter from his wife PW2 as his daughter disclosed the same to her mother. PW3 also in his evidence did not support the contention of PW2 regarding the payment of Rs.20,000/- as dowry to accused Biplab. On the contrary, PW3 stated that his wife used to run the family on his money which he used to send her from Bihar. He also stated that his son Baidyanath was a student of Belonia College and used to visit his sister's house but fact remains that said Baidyanath was not examined by the prosecution. 12. PW4, Sri Manash Chakraborty also did not corroborate the evidence of PW2, Mother of the victim and informant though he was a local guardians of the victim Soma and used to visit the house of the accused Biplab. He further contended that the evidence of PW5 also cannot be accepted on the ground that his evidences are also an improved version. 13. Mr. Talapatra referring to the evidence of PW6, Smt. Shiuli Chakraborty would contend that her statement, inter alia, the victim used to tell them that her husband, sister-in-law used to torture her for bringing money from her parents as dowry, cannot be accepted being the said statement of the victim is not a statement relating to the cause of death, and also does not fall within the purview of Sub-Section 1 of Section 32 of the Indian Evidence Act and hence, such evidence also cannot be used as a basis for conviction. 14. According to Mr. 14. According to Mr. Talapatra, PW7, PW8 and PW9 did not state anything material to implicate the accused persons except that victim Soma used to tell PW8 during her visit to the house of PW3 that the accused persons used to torture upon her mentally but when she stated regarding the allegation of mental torture and in whose presence and under what circumstances, nothing is there in the evidence of PW8 and thus such statement also cannot be considered as dying declaration as those alleged statements were not made just prior to death in view of Section 32 of the Indian Evidence Act. Mr. Talapatra, in support of his aforesaid contention of non-admissibility of the victim's statement as heard by the witnesses, placed reliance on a decision of the Apex Court in Inderpal v. State of M.P. 2002 Cri. L.J. 926 particularly paragraph 7 wherein the Apex Court noted inter alia, "Unless the statement of a dead person would fall within the purview of Section 32(1) of the Indian Evidence Act there is no other provision under which the same can be admitted in evidence. In order to make the statement of a dead person admissible in law (written or verbal) the statement must be as to the cause of her death or as to any of the circumstance of the transactions which resulted in her death, in cases in which the cause of death comes into question. By no stretch of imagination can the statements of Daymanti contained in Exhibit P7 or Exhibit P8 and those quoted by the witnesses be connected with any circumstance of the transaction which resulted in her death. Even that apart, when we are dealing with an offence under Section 498A, IPC disjuncted from the offence under 306, IPC the question of her death is not an issue for consideration and on that premise also Section 32(1) of the Evidence Act will stand at bay so far as these materials are concerned." 15. Even that apart, when we are dealing with an offence under Section 498A, IPC disjuncted from the offence under 306, IPC the question of her death is not an issue for consideration and on that premise also Section 32(1) of the Evidence Act will stand at bay so far as these materials are concerned." 15. He also urges referring to paragraph 8 of the said judgment in Inderpal (supra) that the Apex Court while deciding the appeal preferred by the Appellant, Inderpal also stated, inter alia, that as there is no single piece of evidence which can be admitted in law to be used against the Appellant we are left with the only alternative to set aside the conviction of the Appellant and ultimately their lordships set aside the order of conviction of that Appellant and acquitted him. 16. In the instant case, according to Mr. Talapatra there is no evidence either to connect the present Appellant with the offence under Section 498A or 304B IPC. Mere bald allegations are not enough unless the allegations are proved beyond reasonable doubt. He also placed reliance on a decision of the Division Bench of the Andhra Pradesh High Court in the case of GM Ravi alias G. Purushotham v. State of A.P. 2004 Cri.L.J. 1861 wherein the Division Bench of Andhra Pradesh High Court while discussing cruelty to woman and allegations against accused, husband of deceased to the witnesses taking note of Inderpal (supra) held, inter alia, "All the witnesses in the present case, who have deposed, have only stated what according to them was told by the deceased to them with respect to the harassment meted out to her by her husband. None of these statements comes within the purview of Section 32 of the Evidence Act. Therefore, these statements in view of the judgment of the Supreme Court referred to above, are not at all admissible in evidence. There is not a single witness who has stated that he/she had personal knowledge of the harassment of the deceased by the Appellant. Even the father of the deceased, who stated that the accused had demanded Rs.10,000/- for the purpose of filing an appeal in the High Court, did not state that a demand for money was made to him by the accused. He stated that the demand was made on telephone by his own daughter, the deceased. Even the father of the deceased, who stated that the accused had demanded Rs.10,000/- for the purpose of filing an appeal in the High Court, did not state that a demand for money was made to him by the accused. He stated that the demand was made on telephone by his own daughter, the deceased. According to him, the accused had asked his wife, that is the deceased, to demand money from him. Again this evidence is not admissible under Section 32 of the Evidence Act. Therefore, conviction under Section 498A, IPC also cannot sustain and is set aside." 17. Mr. Talapatra also placing reliance on Sangannagari Narasimulu v. State of A.P. 2005 Crl.L.J. 4168, wherein the learned Single Judge of Andhra Pradesh High Court took note of Inderpal (Supra) and GM Ravi alias G. Purushotham (supra), would contend that in the case of Sangannagari Narasimulu (supra) the learned Single Judge of the AP High Court while discussing the evidence of Mother and Sisters of the victim, who were the witnesses in that case, held that being they are not the direct witnesses of the alleged cruelty and their evidence is based on communication with the deceased who complained of additional dowry demand made by her husband-accused, statement of the deceased to her relatives, mother and sisters is a weak piece of evidence and is also a hear say evidence which is inadmissible. 18. Mr. Talapatra further submits that the learned trial Court while assessing the evidence of the prosecution witnesses took erroneous inferences on unproved facts and placed reliance on such statements of the witnesses who themselves were not there when the victim disclosed to them regarding the story of alleged cruelty or demand for dowry and the trial court convicted the present Appellants relying the evidence of those witnesses, which is totally improper in view of the decision of the Apex Court in Sakatar Singh and Ors. v. State of Haryana 2004 CRI.L.J. 2076 wherein the Apex Court while deciding the appeal taking note of Section 498A as well as the evidence available therein particularly, paragraph 16, 19, 21 and 23 of that decision wherein the Court discussed about the evidence of PW7 therein and also noted, inter alia, "We find it extremely difficult to accept the post death allegation of these witnesses for the unlawful demands when the relationship between them was such that the Appellants were invited for every function in the house of PW7 and they attended those functions. PW8 was a regular visitor to the house of the accused and in spite of all that the Appellants would indulge in such activity of cruelty and harassment which would compel the deceased to commit suicide. From the above discussion of the evidence of this witness, we are unable to come to the conclusion that the prosecution has established the allegation of the demand made by these Appellants." Paragraphs 16, 19, 21 and 23 of the aforesaid judgment of the Apex Court are reproduced herein under as that would be profitable for this Court to come to a proper assessment of the evidence on record. 16. In the cross-examination when she was asked how she came to know of these demands of the Appellants for TV, Scooter, Fridge and money, she stated that she came to know the same from the letters written by her daughter but she failed to produce those letters because of which an adverse inference will have to be drawn. Further nowhere in her entire evidence she has stated that the deceased at any point of time had personally told her about these demands. In the absence of such material, more so because of the fact this witness herself does not say that the deceased told her orally about these demand, and the alleged letters having not been produced, this part of her evidence will have to be treated as an opinion of hers, and such the same is inadmissible in evidence. Therefore, the prosecution cannot rely upon such evidence to base a conviction. Even the demand of the in-laws in deceased's father's property was not told to PW-7 by the deceased but PW-7 was allegedly told about this by Ajmer Singh PW-12, but PW-12 does not support PW-7 in this regard. Therefore, the prosecution cannot rely upon such evidence to base a conviction. Even the demand of the in-laws in deceased's father's property was not told to PW-7 by the deceased but PW-7 was allegedly told about this by Ajmer Singh PW-12, but PW-12 does not support PW-7 in this regard. That apart in the cross-examination which it was pointed out to her that she had not mentioned in her previous statement about this demand for inheritance in deceased father's property, she stated that she had told the Investigating Agency, but the same was not found in the said statements of hers. It is also clear from her evidence in the cross-examination that she had not even told the Investigating Agency about the demand for money in installments as spoken to by her in her examination-in-chief. It is to be noticed further that even though she in her examination-in chief stated that when PW-8 visited the deceased a few days before the incident in question and deceased had complained to PW-8 about the demand by her in-laws, PW-8 in his evidence does not support PW-7 in this regard. From the above it is clear that the evidence of PW-7 is of no assistance to the prosecution to establish the fact that there was any demand, much-less an unlawful demand at all by the Appellants on the deceased. The trial Court, in our opinion, seriously erred in placing reliance on inadmissible part of PW-7's evidence and ignoring the omissions and improvements established by the defense in the course of cross-examination of PW-7. 19. The next witness relied upon by the prosecution to establish its case is PW14 Gurbux Singh who is the maternal uncle of the deceased. He in his evidence states that after two or three months of the solemnization of the marriage, Devinder Kaur started complaining that she was being harassed. This was confirmed to him by his brother-in-law, who was the father of the deceased-Devinder Kaur. This statement again in our opinion is not admissible because he has not personal knowledge about the harassment meted out to the deceased-Devinder Kaur but he was only repeated what his brother-in-law had stated to him. This was confirmed to him by his brother-in-law, who was the father of the deceased-Devinder Kaur. This statement again in our opinion is not admissible because he has not personal knowledge about the harassment meted out to the deceased-Devinder Kaur but he was only repeated what his brother-in-law had stated to him. Then again there is a contradiction in regard to the timing of the demand which according to the information of this witness was two months of the marriage, while PW8 specifically stated such demands started coming in after the death of his father about which we have already expressed our views hereinabove. PW-14 also states that in his evidence that with the passage of time he learnt that the accused had asserted for a share also in the property of his brother-in-law which again is mere hearsay notice of which cannot be taken for basing a conviction. In the cross-examination this witness stated that he had mentioned in his statement to the police about the aforesaid three demands made by the accused, but when confronted with his previous statement, it was noticed by the Court that no such statement was made. He also admits in the cross-examination that he had no occasion to visit the in-laws of Devinder Kaur in Ambala after her marriage and he did not receive any letter or other message from Devinder Kaur or from her father or her mother or any other relation of the deceased intimating that Devinder Kaur was being harassed on account of demand for more dowry. This admission clearly goes to show that whatever he spoke in the examination in-chief about the demand made by the accused was not based on his personal knowledge but on what he heard from others. He further admits in his cross-examination that in the statement before the police he did not say that Devinder Kaur committed suicide under pressure of the accused because of the demand of dowry. In our opinion, such evidence which is not based on personal knowledge of the witness cannot be the foundation for basing a conviction. 21. Next circumstance relied by the trial Court as noted herein above is that the accused had made a demand for a share in the property of deceased-Devinder Kaur's father. In our opinion, such evidence which is not based on personal knowledge of the witness cannot be the foundation for basing a conviction. 21. Next circumstance relied by the trial Court as noted herein above is that the accused had made a demand for a share in the property of deceased-Devinder Kaur's father. Like the earlier circumstance we have dealt with this somewhat briefly while discussing the oral evidence but at the cost of repetition we think it is necessary to further discuss this aspect once again. The material in support of his allegation is found in the evidence of P Ws 7,8,13 and 14. While discussing their evidence we have noted that even according to the prosecution none of these witnesses except P Ws 8 and 12, had ever been told by Devinder Singh personally about this demand. So far as PW7 is concerned she stated that she came to know of this demand through PW-12 Ajmer Singh but Ajmer Singh has not supported PW-7 in this regard. PW-7 had not stated to the Police also in her previous statement about this part of the demand. Therefore, it is clear that this witness is trying to improve her case for the first time in the Court. Similar is the evidence of PW-14 Gurbax Singh, the uncle of the deceased who also makes a reference to this demand which he allegedly came to know from the father of the deceased. This witness too has not stated before the police that such a demand was made by the accused when his statement was recorded by the Police. Therefore, even this witness had unabashedly tired to improve his evidence before the Court. So far as PW-13 Kulwant Singh is concerned he too did not have any personal knowledge of this demand and says in his evidence that he came to know of this demand through deceased-Devinder Kaur herself at Banur in Rajpura Tehsil when he met her during a chance meeting there. This witness says that at that point of time PW-8 the brother of the deceased was also present but PW-8 does not support this evidence of PW-13. That apart this witness was present at the time when the dead bodies were brought to the hospital and when the police arrived and registered a case but did not volunteer any statement top the police. That apart this witness was present at the time when the dead bodies were brought to the hospital and when the police arrived and registered a case but did not volunteer any statement top the police. His statement was recorded only on 25.07.1986 nearly 2 months after the incident hence in our opinion it is not safe to place any reliance on his evidence also. It is of some importance to here, PW-8 the brother of the deceased in his evidence does not state anything about this demand for a share in his father's property. Therefore, in our opinion this allegation of pressurizing the deceased into demanding a shared in her father's property, the prosecution has failed to establish. Hence, this circumstance also does not support the prosecution case. 23. It is based on these erroneous inferences drawn on unproved facts and placing reliance on statements of interested witnesses whose evidence has not stood the test of cross-examination, the trial Court came to a wrong conclusion as to the guilt of the accused persons. It s to be noted that 3 letters Ex. P-28, DA and DB which though not very proximate in time clearly show that there was no demand as has been alleged by the prosecution by the accused and the contents of the said letter clearly show that the allegation made after the death of Devinder Kaur of dowry demand or harassment leading to cruelty is unsubstantiated. For all these reasons we are of the opinion that the trial Court committed serious error in coming to the conclusion that the prosecution had established its case against the Appellants. 19. Mr. Talapatra also placed reliance on a judgment of this Court in the case of State of Tripura v. Dulal Dey (2008) 1 GLR 637 wherein this Court while dealing with an offence under Section 498A and 304B IPC discussed regarding the effect of Section 113B of the Evidence Act and stated inter alia, that if we read Sections 498A and 304B, IPC with Section 113B of the Evidence Act conjointly then the court is supposed to form a presumption against the husband and matrimonial relations of a deceased wife. But question is whether on presumption, the husband and matrimonial relations of the deceased wife should be treated guilty for such a heinous offence like under Section498A/304B, even when no case of cruelty is meted out either by physical or mental torture for demand of dowry in the evidence. According to this Court that would not be proper, unless the prosecution establish the connection of the accused Respondent with the alleged offence, nature of offence whatever may be high or heinous that itself would not connect an accused with such an offence. It would not proper also for the court to come to a suspicion against the accused Respondent unless prosecution evidence connects the accused with the alleged offence. If a married woman dies in an unnatural circumstances at her matrimonial home within seven 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 the relatives of the husband then, obviously the court can presume such a death as dowry death. But when such allegations of cruelty and/or demand for dowry is totally absent in the evidence, in that case, it would not be proper for treating every death of married woman in her matrimonial home within seven years, as a dowry death, as the same would be injustice to the accused-husband and his inmates and would send a wrong message to the society, as the accident may happen at any moment to any person including married woman in the matrimonial home and she may commit suicide for any other reason, like a sudden quarrel on account of fault of the spouse or both, or for the fault of neither of them, it may be of selfishness, boorishness, callousness and difference of opinion on the part of one of the parties except the reasons for cruelty and demand of dowry from the husband and his relatives. 20. Mr. Talapatra while relying the aforesaid views of this Court in Dulal Dey (supra) further contended that in the instant case also there is no definite evidence against the accused persons that they caused cruelty and/or demanded dowry from the family of the deceased or from herself. 20. Mr. Talapatra while relying the aforesaid views of this Court in Dulal Dey (supra) further contended that in the instant case also there is no definite evidence against the accused persons that they caused cruelty and/or demanded dowry from the family of the deceased or from herself. He further contended that it is a settled position of law and is also established in criminal jurisprudence that mere suspicion is not enough to convict an accused as the degree of proof required is strict than in the civil proceedings. He placing reliance on Durga Prasad and Anr. v. State of M.P. 2010 CRI.L.J. 3419 wherein the Apex court held that cruelty or harassment soon before the death must be proved in relation to demand for dowry would contend that unless the cruelty or harassment soon before the death is proved then Section 304B would not be attracted. 21. Mr. Talapatra finally placed reliance on a recent decision of the Apex Court in Subhash v. State of Haryana AIR 2011 SC 349 wherein the Apex Court while deciding the appeal preferred by accused Subhash who was convicted under Section 306 and 498A IPC for causing death of his wife Anuradha, took note of primary evidence against the Appellant Subhash therein, noted that "if any doubt is left with regard to sanctity of this dying declaration, it stands dispelled by the testimony of Dr. Devansh Sharma (who had made the endorsement Ex. P that Anuradha was fit to make a statement) when he deposed that the endorsement had been taken from him after the statement of Anuradha had been recorded. This statement has to be read with the admission made by PW Ravi Malik that he had not taken any endorsement before actually recording the statement. We are therefore, of the opinion that the so-called "pivot" that both the courts below have found in the dying declaration Ex. PCC is, in fact, non-existent. This statement has to be read with the admission made by PW Ravi Malik that he had not taken any endorsement before actually recording the statement. We are therefore, of the opinion that the so-called "pivot" that both the courts below have found in the dying declaration Ex. PCC is, in fact, non-existent. The very conduct of this witness and the manner in which he had recorded the dying declaration, as already indicated above, raises a deep suspicion about its veracity.' The court ultimately on going through the statements of two primary witnesses, PW2 Kishori Lal and PW10 Rajinder Gaur, brother stated that, 'A bare reading of their statements shows that the entire story with regard to the factum of the cruelty, the manner in which the deceased was dealt with, and the behavior of the accused towards her had been built up during the evidence recorded in Court. We may refer to one significant fact which has been omitted in the statements under Section 161 of the Code of Criminal Procedure. This is with regard to the oral dying declarations made to them by the deceased and when confronted could give no explanation for the omission. In addition, it is clear that the dying declaration recorded Ex. PCC had been maneuvered at the instance of Rajinder Gaur PW. As already indicated above, the trial court as well as the High Court had not placed much reliance on the statements of these two witnesses. We are of the opinion that there statements, in fact, inspire no confidence." 22. In the instant case also, according to Mr. Talapatra, PW12 in her statement said that 15 to 20 days prior to the death of the victim deceased she visited the victim deceased when she stated about torture, which was believed by the trial court, and again in the evidence of the mother, PW2 she stated in cross that she visited the victim deceased 2/3 days prior to her death to whom she did not state anything regarding the cruelty or demand of dowry. Therefore, the learned trial court ought not to have relied upon the evidence of PW12 for convicting the Appellants as those statements are hit by provisions of Sub-section (1) of Section 32 of the Evidence Act. 23. Mr. Ghosh while resisting the submission of Mr. Therefore, the learned trial court ought not to have relied upon the evidence of PW12 for convicting the Appellants as those statements are hit by provisions of Sub-section (1) of Section 32 of the Evidence Act. 23. Mr. Ghosh while resisting the submission of Mr. Talapatra mainly placed reliance on the evidence of PW2, PW7, PW8 and PW12 and would contend that these witnesses heard about demand of dowry and torture from victim. He placed reliance, to establish the offence committed by the accused under Section 304B IPC on a decision of the Apex Court in Raja Lal Singh v. State of Jharkhand 2007 AIR SCW 3690 wherein the Apex Court while dealing with a case of dowry death noted the essential components to Section 304B which have already been noted by this Court earlier in this judgment. While discussing the words, "soon before her death" their lordships noted, inter alia, "It may be mentioned that the words, 'soon before her death' do not necessarily mean immediately before her death. As explained in Satvir Singh (supra), this phrase is an elastic expression and can refer to a period either immediately before death of the deceased or within a few days or few weeks before death. In other words, there should be a perceptible nexus between the death of the deceased and the dowry related harassment or cruelty inflicted on her" and as the Apex Court was of the opinion that there was a clear nexus between the death of Gayatri and the dowry related harassment inflicted on her, their lordships dismissed the appeal filed by Raja Lal Singh against his order of conviction and sentence. 24. Mr. Ghosh also referred to Section 113(B) of the Evidence Act to show that the Court has the power to take presumption so far a dowry death is concerned as the death of victim was an intentional one admittedly within the period of seven years from the date of marriage, as such marriage was solemnized on 19th November, 2003 and the victim deceased died on 09.05.2007. 25. Every decision of the Apex Court cannot be treated as a precedent unless the facts of the decision cited and the facts of the case to be decided are similar in nature. 25. Every decision of the Apex Court cannot be treated as a precedent unless the facts of the decision cited and the facts of the case to be decided are similar in nature. There is no doubt that facts of every case may not be same but there might be some similarity as every case is decided by the court taking note of the facts of that case. Facts are not precedent but the question of law decided on the said facts is the precedent. In a criminal case also a decision has to be fitted taking note of the facts of the cited case and the case which has to be decided. As in the instant case the prosecution case is mainly based on the statement of the victim deceased narrated to PW2 and PW12 and partly to PW7 and PW8 and the said statements are not admissible as evidence in view of the provisions of Sub-section (1) of Section 32 of the Evidence Act as contended by Mr. Talapatra and as discussed by this Court supra, it would be proper to discuss the evidence of the aforesaid witnesses as that would help to come to a proper decision. 26. PW2, Smt. Mira chakraborty in her evidence stated that she is the informant of the instant case and victim Soma was her daughter who was married to the accused Biplab Chakraborty on 19th November, 2003, A.D. and at the time of marriage Rs.1,00,000/- was paid in cash to the accused Biplab Chakraborty as dowry according to his demand. After 3/4 months of the marriage, the accused persons started to torture Soma both mentally and physically for bringing more money as dowry. PW2 further stated that victim deceased had narrated the said story during her lifetime to her when she visited her house and on hearing her condition, she paid further Rs.20,000/- to the accused Biplab as per his demand but the accused was not satisfied with the said amount and kept demanding for more money but as she had no capacity to pay him more money, the accused persons used to torture the victim deceased both mentally and physically. On 09.05.2007, at about 11/12 noon, she got information over telephone from an unknown person that her daughter Soma was seriously ill and had been lying in the TSD Hospital, Udaipur. On 09.05.2007, at about 11/12 noon, she got information over telephone from an unknown person that her daughter Soma was seriously ill and had been lying in the TSD Hospital, Udaipur. On getting such information she rushed to the TSD Hospital and found that her daughter had already expired. On query, they came to know from accused Biplab that Soma had committed suicide by consuming poison. PW2 further stated that on 09.05.2007, she lodged a written complaint before the Officer-in charge of the R.K. Pur Police Station and one Suresh Das wrote the ejahar on her behalf as per her dictation and then he read over and explained the contents of the ejahar to her and thereafter she put her signature on it admitting it to be correctly written. She also identified her signature over the FIR (Exhibit-1/2) and the accused persons, who were present in the dock. In her cross-examination, she stated that it is a fact that she did not mention that she paid Rs.1 Lakh and subsequently Rs.20,000/- to the accused as dowry in her ejahar. She also stated that she had not stated to the IO that she paid subsequently Rs.20,000/- to the accused. She further stated that she used to visit the matrimonial home of her daughter at Udaipur. She also stated that her son Baidyanath and her brother also rushed to the TSD Hospital on getting the information of illness of her daughter (victim) and one lady police officer examined the dead body of her daughter in the Hospital morgue, who prepared the inquest report and she (PW2) stood as witness of the same and it was signed by her son and the accused Biplab as witnesses and on the same day she returned to her house at Kathalia. On perusal of the signature in the inquest report she identified the same (marked Exhibit-D). She again stated that she did not state to the said lady police officer that she had any allegation against the accused persons. PW2 further stated that the signature over the ejahar was not her signature and it is not a fact that she did not lodge any written complaint before the Officer-in-charge of the R.K. Pur PS regarding the incident. PW2 further stated that the signature over the ejahar was not her signature and it is not a fact that she did not lodge any written complaint before the Officer-in-charge of the R.K. Pur PS regarding the incident. She also stated that she did not state to the police officer or before the Court when she came to know about the torture for demand of dowry on her daughter by the accused persons and it is a fact that she stayed in her daughter's house 2/3 days prior to her death. She also stated it is a fact that she talked to her daughter over telephone prior to 2/3 days of her death and it is not a fact that she asked her son-in-law (accused) to stay with them at Kathalia as "Ghar Jamai". She finally stated that it is not a fact that she created the instant case subsequently in connivance with other people. 27. PW7, Smt. Shanta Dey in her evidence stated that she was the next door neighbor of the father of the victim and that they used to see the victim when she visited her father's house and on her query the victim deceased told her that she was not happy in her matrimonial home as her father could not oblige them by paying more money as dowry. This witness also stated that being tortured by her in-laws and husband, victim committed suicide, subsequently. In her cross-examination, she stated that she did not state to the IO any specific date when she had first come to know about the incident of torture. She also stated that it is not a fact that she deposed falsely at the instance of the informant. 28. PW8, Smt. Astami Acharjee in her evidence stated that she was a tenant of PW2, Smt. Mira Chakraborty and she had been staying as a tenant in the house of PW2 after one month of the marriage of the victim and at that time, there was no other person residing as tenant in the said house. She further stated that victim Soma used to tell her during her visit to her father's house that the accused persons used to torture on her mentally. She further stated that victim Soma used to tell her during her visit to her father's house that the accused persons used to torture on her mentally. She further stated that subsequently Soma committed suicide being tortured by her husband and in-laws and that the accused persons used to demand more money from the victim's parents which could not be paid by the victim's father. In her cross-examination, she stated that it is not a fact that she deposed falsely at the instance of the mother of the victim. 29. PW12, Smt. Sabitri Chakraborty (Roy) in her evidence stated that the victim was her niece and that as per demand of accused Biplab and other accused persons, the father of the victim had given everything at the time of marriage of the victim deceased with accused Biplab. She further stated that she occasionally visited the house of the accused Biplab but could not talk to the victim as the mother of the accused Biplab and his sister Sima used to guard her and so the victim could not state anything against them in their presence. She also stated that prior to the death of the victim, one day she had requested her over telephone to visit their house and probably it would be in the last part of the month of April, 2008, as on that day her mother-in-law was not present in the house and accordingly, when she went to their house the victim stated to her that the accused persons used to torture on her both mentally and physically for having dowry from her parents and the victim also told her that if possible she should take necessary steps for the transfer of her husband at Kathalia or at Melaghar of Sonamura Sub-Division. She further stated that subsequently, the victim was murdered on 09.05.2008 and she identified the accused persons who were present in the dock. In her cross-examination, she stated that she does not know who were present at the time of negotiation of the marriage between the accused Biplab and the victim and it is not a fact that the accused persons had not demanded dowry from the parents of the victim at the time of marriage. In her cross-examination, she stated that she does not know who were present at the time of negotiation of the marriage between the accused Biplab and the victim and it is not a fact that the accused persons had not demanded dowry from the parents of the victim at the time of marriage. She further stated that she went to the house of the victim at her request after 7/8 days and it is a fact that she did not intimate to the informant what she had learnt from the victim and she could not recollect exactly the telephone number of the accused persons. She also stated that it is not a fact that she had no relation with the parents of the victim and that the victim had not requested her to go to the victim's house over telephone. She again stated that she intimated the entire matter to the police officer and that it is not a fact that they hurt the victim for which she committed suicide and that she had deposed falsely at the instance of the informant. 30. Upon going through the evidence as referred to above and the decisions of the Apex Court and the High Court referred to by the learned Counsel for the parties it can be said that the learned trial court failed to appreciate the evidence of the witnesses particularly, on the point of cruelty and dowry. Cruelty is defined in Explanation (a) & (b) to Section 498A IPC which are as follows: Explanation.- For the purpose of this section, "cruelty" means- (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her on any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. 31. Dowry means 'dos muliers. Lat' otherwise called maritagium, or marriage goods, that which the wife brings to the husband in marriage. This word should not be founded with dower-Co. Litt 31-Wharton's law Lexicon. 31. Dowry means 'dos muliers. Lat' otherwise called maritagium, or marriage goods, that which the wife brings to the husband in marriage. This word should not be founded with dower-Co. Litt 31-Wharton's law Lexicon. The definition of dowry will also be available in Section 2 of the Dowry (Prohibition) Act, 1961. In common parlance, dowry means where the husband or his relations demand valuable security from the parents and other relations of the wife after the marriage. In simple way if we want to define the meaning of dowry then we can say a price of marriage. We can say the article demanded by the family of the bride as a price of marriage. In Satbir Singh v. State of Punjab (2001) 8 SCC 633 : 2001 Crl. LJ 4625, the Hon'ble Apex Court considered the definition of "dowry" as defined under Section 2 of the Dowry Prohibition Act, 1961, with reference to the offence under Section 304B of the IPC, and held that it should be any property or valuable security given or agreed to be given in connection with the marriage. Customary gift or payment in connection with birth of child or other ceremonies unrelated to the marriage ceremony, held, do not fall within the ambit of "dowry". The Apex Court also stated in the same judgment that there are three occasions related to dowry. One is before the marriage, second is at any time after marriage, the third occasion may appear to be an unending period. But the crucial word is 'in connection with the marriage of the said parties'. This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent indifferent societies. Such payments are not enveloped within the ambit of "dowry". 32. This Court has also noted the case of Satvir Singh (Supra) which was relied upon in Vikram Singh v. State of Rajasthan 2007 Crl. LJ 1622 and referred to by this Court in Dulal Dey (supra) as relied upon by Mr. Talapatra. Such payments are not enveloped within the ambit of "dowry". 32. This Court has also noted the case of Satvir Singh (Supra) which was relied upon in Vikram Singh v. State of Rajasthan 2007 Crl. LJ 1622 and referred to by this Court in Dulal Dey (supra) as relied upon by Mr. Talapatra. In the case of Dulal Dey (supra) this Court also took note of the case of Reema Aggarwal v. Anupam AIR 2004 SCW 344 wherein the Apex court again discussed regarding the term 'dowry'. Therefore, it would not be proper for this Court to go for detailed discussion again in the instant appeal. 33. From the prosecution evidence it appears that though the prosecution tried to make out a case of cruelty but the witnesses do not support the case of the prosecution to take the deposition of the deceased victim within the envelope of Section 498A and 304B IPC to put the Appellant for conviction. Each and every injury and/or harassment either by the husband or by the family members of the husband to the wife victim cannot be considered as cruelty unless the conduct of the husband and the family members are willful and are of such a nature which is likely to drive the wife to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical of the wife/woman. Therefore, the prosecution, in a dowry death case, is to prove that the conduct of husband-accused is willful and of such a nature as is likely to drive the wife to commit suicide; and for enveloping an offence as 'cruelty' as per Clause (b) of Explanation to Section 498AIPC harassment to a woman is to be for the purpose of meeting unlawful demand of any property or valuable security or on an account of failure by wife or any person related to her to meet such demand. 34. In the instant case, the entire evidence of the prosecution is based on the statements of the deceased stated to PW12. 34. In the instant case, the entire evidence of the prosecution is based on the statements of the deceased stated to PW12. PW12 in her statement stated that she used to visit the house of the victim deceased and she could not talk with the victim as the mother and sister of accused-Appellant Biplab used to guard her and only on an occasion prior to her death when (PW12) she visited the house of the deceased on her request, then soma disclosed regarding the torture upon her by her husband and other in-laws. The said statement of PW12 cannot be accepted as evidence in view of the bar as provided under Section 32(i) of the Evidence Act and also in view of the judgment of the Apex Court in Inderpal (supra) which is subsequently followed in various decisions of the Apex court as well as by the High Courts. 35. In the case of Durga Prasad and Anr. (supra) the Apex court also stated that cruelty or harassment soon before the death has to be proved in relation to demand of dowry. In the instant case neither the mother nor the father, i.e. PWs 2 and 3, stated specifically about the demand of dowry. Therefore, it cannot be said that soon before the death of the victim she was subjected to cruelty or harassment by the Appellant for/or in connection with any demand of dowry for treating such death as a dowry death. To prove a dowry death the prosecution cannot escape from the burden to prove that harassment or cruelty was meted out to the victim by the husband or any relative of her husband soon before her death. In the instant case, such evidence is totally missing. 36. There is no doubt that in a dowry death case direct evidence will not always be available. There are cases even where dowry death can be proved by way of circumstantial evidences and for which the legislature has given certain powers to the Court under Section 113B IPC for taking presumption, as Mr. Ghosh contended, and for taking such presumption death must be within seven years of the marriage. In the instant case, the death was obviously within seven years of the marriage but again question remains as to whether every death of a married woman in her matrimonial home within seven years can be treated as a dowry death. Ghosh contended, and for taking such presumption death must be within seven years of the marriage. In the instant case, the death was obviously within seven years of the marriage but again question remains as to whether every death of a married woman in her matrimonial home within seven years can be treated as a dowry death. Answer has already been given by this Court in the case of Dulal Dey (supra) and the relevant observation of this Court was also referred to by Mr. Talapatra which has already been referred to and reproduced in this judgment and therefore, it is not necessary to repeat the same. 37. In view of the above, the contention of Mr. Ghosh relating to Section 113B is in no way help the prosecution to prove its case. 38. On scrutiny of the evidence of the witnesses particularly, PW2 and PW12 and to some extent PW7, this Court is of the opinion that the prosecution has failed to prove its case beyond reasonable doubt. Rather a doubt remains in the mind of this Court regarding the involvement of the Appellants in the alleged offence as there is no direct evidence relating to physical and mental torture upon the victim except the statement made by the deceased to PW12 which are not admissible evidence in view of the provisions of Sub-section (1) of Section 32 of the Evidence Act. Therefore, there is no other option except to set aside the judgment and order dated 09.04.2009 and 13.04.2009 respectively as impugned in the instant appeal. 39. Ordered accordingly. 40. In the result, the appeal is allowed. The Appellants are acquitted from the charges leveled against them. As the Appellant Nos. 1 and 3 are on bail, their bail bonds stand discharged. As the Appellant No. 2 has already expired, due to setting aside of the judgment and order as impugned, she is also free from the charges leveled against her. Send down the LC Records. Appeal allowed.