Research › Search › Judgment

Patna High Court · body

2000 DIGILAW 260 (PAT)

Md. Anwar And Another v. State Of Bihar

2000-02-15

D.P.S.CHOUDHARY

body2000
Judgment D.P.S.Choudhary, J. 1. This appeal has been preferred against the judgment and order dated 9th August, 1996, passed by the 2nd Additional Sessions Judge, Katihar, in Sessions Case No. 266 of 1995/23 of 1996, convicting appellant No. 1 Md. Anwar under Sec. 304-B of the Indian Penal Code (hereinafter referred to as the I.P.C.) and sentencing him to undergo RI for 10 years. He has further been convicted under Sec. 201, I.P.C. and sentenced to undergo RI for three years. But, the sentence under Sec. 201, I.P.C. was ordered to remain suspended. Appellant No. 2, Abuzar Ali has been convicted under Sec. 201, I.P.C. and sentenced to undergo R.I. for three years and to pay a fine of Rs. 500 and in default to payment of fine to undergo RI for six months. 2. Before the trial Court, in all four accused persons including the two appellants were tried for the offence under Secs. 304-B/34, I.P.C. and 201/34, I.P.C. The trial Court, however, acquitted the other two accused after giving them benefit of doubt and only two accused-appellants have been found guilty and convicted as indicated above. 3. The prosecution case in brief is that the deceased Zarina aged about 16 years, daughter of Abdul Rahman, PW-8 was married with accused-appellant Md. Anwar, about five years ago. At the time of marriage, the informant had given cycle, watch, cow, etc. to the accused in dowry. The informant and the appellants are the residents of the same village and Sk. Suleman, father of appellant No. 1, Md. Anwar, was the cousin brother of the 1st informant, Abdul Rahman. It is alleged that in the beginning, the relationship in between the parties was cordial but since two years back, the informants son-in-law Md. Anwar and his parents started pressurising Zarina for demanding from her father Rs. 10,000 in cash or a buffalo, and threatened to kill her if the demand is not fulfilled. It is further alleged that about two months ago, when Zarina came to the house of her parent, she told them about the demand and the torture including threat to be killed at the hands of the appellants for non-fulfilment of the demand of dowry. Thereafter, the informant went to his Samadhis house and requested them not to torture his daughter and told them that out of Rs. 10,000 he could manage Rs. Thereafter, the informant went to his Samadhis house and requested them not to torture his daughter and told them that out of Rs. 10,000 he could manage Rs. 3,000 only which he gave to them and assured that rest of the amount shall be paid at the earliest. It is further case of the prosecution that in the evening of 5.7.1995, appellant Md. Anwar came to the house of the 1st informant and asked to perform Bidagri of Zarina. The informants wife was not present who had gone to her Naihar, but the accused-appellant, Md. Anwar was not agreeable and he forcibly took Zarina alongwith him. It is further alleged that on the same day at about 9 p.m., one Md. Muzammil Haque (DW-1) came to the house of the 1st informant and reported that while he was returning back from the Hat and reached near the house of the appellant, he heard the sound of weeping coming out from their house. He went near the court-yard of the accused house and found accused Anwar and other sons of Suleman Ali with his help and of their wife, were beating Zarina mercilessly. After receipt of this information, the 1st informant (PW-8) along with his brother, Tazimuddin and neighbours including Latifur Rahman and Sajjad Ali went to the house of the accused-persons and enquired from Suleman Ali as to why they had" assaulted Zamia. He asked them that if they were not ready to keep Zariria, she should be allowed to go back along with him to her Naihar. The accused Suleman Ali kept a mum, but his wife told that Zarina had gone out side and will return back soon. The informant and his brother waited there for a considerable time, but Zarina did not return back. They expected some foul play and started searching Zarina. During search they went near Dhabri Khan, where a co-villager, Md. Ismail (PW-11) who was fishing in the pond told them that he had seen some persons moving in a boat in the pond, and in the torchlight he identified Suleman Ali and Md. Anwar sitting in the boat and they had thrown something into the pond and thereafter they had fled away. The 1st informant went near the boat and found a plastic bag and a petty coat of Zarina lying in the boat. Anwar sitting in the boat and they had thrown something into the pond and thereafter they had fled away. The 1st informant went near the boat and found a plastic bag and a petty coat of Zarina lying in the boat. In the morning, they again made search of Zarina, but in vain. Thereafter, the 1st informant went to the police station and informed about the occurrence. The sub-inspector of police came to the village at 12.30 hours on 6.7.1995 and recorded the fardbeyan of PW-8, the first informant. The Investigating Officer arrested some of the accused-persons who were hiding in the Jute field. On interrogation, they confessed their guilt in presence of the villager and disclosed that they had thrown the dead body into the pond and pointed out the place where the dead body was thrown. The police searched for the dead body and recovered it from the pond in a naked condition fastened with a cycle tube. On the basis of the faidheyan of PW-8, case was registered and after investigation charge-sheet submitted. Alter commitment, the trial proceeded in the Court below. 4. The case of the defence is of false implication and complete denial of the occurrence. It is further alleged on behalf of the defence that at the time, of her death Zarina was residing in her fathers house and she had illicit relationship with Md. Ismail, PW-11, which her father (the 1st informant) did not like, and with the help of his family members he had killed Zarina, but implicated the accused-persons falsely. 5. The prosecution, in support of its case examined 11 witnesses, out of them, six witnesses, including PW-1, Surat Ali, P.W.-2, Azhar Ali, PW.-3, Faizul Haque PW-4, Maqbool Hassan, P.W. 5, Latifur Rahman and P.W. 11, Mel. Ismail lurned hostile and did not support the prosecution case. Out of the remaining witnesses, PW-8 is Abdul Rahman, father of the deceased and PW-9, Tazimuddin is the brother of the deceased. PW-10, Md. Mustaque Alam is a witness on the inquest prepared by the Investigating Officer on the dead body of Zarina, the deceased. He has proved his signature on the inquest (Ext. 5/2). 6. Out of the remaining witnesses, PW-8 is Abdul Rahman, father of the deceased and PW-9, Tazimuddin is the brother of the deceased. PW-10, Md. Mustaque Alam is a witness on the inquest prepared by the Investigating Officer on the dead body of Zarina, the deceased. He has proved his signature on the inquest (Ext. 5/2). 6. FW-6 is the doctor Sudhir Kumar, who conducted the post-mortem examination on the dead body of the deceased on 7.7.1995 at 11.50 a.m. and found the following external ante-mortem injuries on her body: (i) A bruise about 3" x 1.1/2" over the left side of face just above left angle of mandible. (ii) A bruise about 2" x 1" over front head. On opening of cranial cavity he found a haematoma of 3" x 1.1/2" over frontal parts, corresponding to above injury No. 2. In his opinion, injury No. (ii) found over the front of head was the cause of her death. This injury might have been caused by some hard and blunt substance. He has proved the post-mortem report Ext. I which bears his signature. In his opinion, the deceased was aged about 16 years. 7 PW-7, Taiyab Hassan, is the IO of the case, he recorded the fardbeyan of the 1st informant and took up the investigation. He recovered the dead body after search from the pond and after preparing its inquest sent if for post-mortem examination. He visited the house of accused Anwar and in his room he found some broken pieces of bangles, but he did not seize them. However, he seized an old petticoat and one plastic bag said to be found in the boat near the pond. He prepared production-cum-seizure list (Ext. 3) in presence of the witnesses including Md. Tazimuddin and signed over the same (Ext. 5/1). He stated that he arrested the accused-persons, from the Jute field where they were hiding themselves, including the two appellants. He stated that on interrogation, accused-appellant Anwar had disclosed that the dead body of Zarina had been thrown into the Khand (pond) from where with the help of villagers the IO recovered the dead body. The IO has proved the inquest report (Ext. 4). He stated that during investigation, PWs 1 to 5 and 11 have supported the prosecution case, including taking away of Zarina from her parents house and assault on her by her husband and other family members. The IO has proved the inquest report (Ext. 4). He stated that during investigation, PWs 1 to 5 and 11 have supported the prosecution case, including taking away of Zarina from her parents house and assault on her by her husband and other family members. 8. On the basis of the evidence discussed above, the trial Court has come to the finding that the prosecution has been able to prove that there was demand of dowry by the appellants and for the non-fulfilment of the demand for dowry, they assaulted the deceased Zarina and on the date of occurrence they killed her by assault. The trial Court has also come to the finding that her dead body was thrown into the pond in order to screen the evidence of murder and accordingly convicted both the appellants as indicated above. 9. It was argued on behalf of the appellants that in his fardbeyan the informant has stated that he learnt from Mojamil Haque that accused-persons were assaulting his daughter Zarina in her Sasural, but surprisingly this witness has been examined as DW-1, who stated that he never reported about the alleged occurrence of assault on Zarina by the accused-persons to the first informant. As such, the very basis of the prosecution case does not find corroboration from the evidence of Mojamil Haque. Except this witness no other witness has been named by the prosecution who had seen the accused-persons assaulting deceased Zarina nor any eye-witness has been examined. The learned APP submitted that DW-1 in cross-examination stated that Zarina was married with accused Md. Anwar about 2-3 years ago. He admitted that Zarina has died in the same night on which went to the house of his Mama Abdul Rahman (informant). He admitted that before going to the house of Abdul Rahman (first informant) Zarina was alive but thereafter she died. According to him, he learnt about her death in the morning. He admitted that dead body was not found in the house of the accused but subsequently it was recovered from the Kund (pond). The dead body was naked and a cycle tube was found with her dead body. The dead body was taken out from the pond with the help of the police. He admitted that he was not examined by the IO of this case. The dead body was naked and a cycle tube was found with her dead body. The dead body was taken out from the pond with the help of the police. He admitted that he was not examined by the IO of this case. The learned APP submitted that on the basis of the evidence of DW-1, it is clear that Zarina was murdered and her body was thrown into the pond which was subsequently recovered. The cycle tube found with her body indicates that some heavyweight was tied up with her body with an intention to conceal the dead body inside the pond. As such, his evidence in part supports the prosecution case. The learned APP further submitted that the alleged assault by the accused-persons to Zarina took inside the house of the accused-persons. Therefore, no eye-witness was possible on the point of her assault. 10. The learned APP submitted that in the fardbeyan and in his evidence PW-5 (Latifur Rahman) has disclosed that PW.-11 (Md. Ismail) told them that he had seen the accused-persons throwing some heavy weight from the boat into the Kund and subsequent recovery of the dead body from the said Kund corroborates the evidence of PW-11 and it is proved beyond doubt that the accused persons had thrown the dead body of Zarina inside the Kund from the boat. The IO has recovered a petticoat and some other articles from the said boat and the petty coat was identified to be that of deceased Zarina. The dead body of Zarina was found to be naked. The learned APP further submitted that from the evidence of the IO it is clear that after the arrest of Md. Anwar he made disclosure that the dead body of Zarina has been thrown in the Kund which was subsequently recovered by the police. As such, his confession leading to the recovery before the police is admissible. From the evidence of PWs. 7, 8 and 9, it is clear that accused Md. Anwar has disclosed the place where the dead body was thrown and subsequently recovered by the police. 11. From the submissions made on behalf of the parties and after considering the evidence of PWs. 7, 8, 9 and 11 it is proved beyond doubt that accused-persons, including Md. 7, 8 and 9, it is clear that accused Md. Anwar has disclosed the place where the dead body was thrown and subsequently recovered by the police. 11. From the submissions made on behalf of the parties and after considering the evidence of PWs. 7, 8, 9 and 11 it is proved beyond doubt that accused-persons, including Md. Anwar had thrown the dead body of Zarina in the night inside the pond which was subsequently recovered by the police. This part of the evidence finds corroboration by the evidence of DW-1 also, as discussed above. 12. From the careful scrutiny of these evidence it is proved beyond doubt that Zarina died in her Sasural under mysterious circumstances. Her dead body was thrown into the pond by the accvised-persons, which is a strong circumstance to show that she did not die a natural death, otherwise there was no occasion to throw her dead body inside the pond with an intention to conceal or to destroy the evidence of alleged murder. If she died a natural death, her dead body should have been buried as per the Muslim rights and her parent should have been informed about her death. The medical evidence of PW-6 as discussed above, shows that cause of her death was head injury accused by some blunt substance. Therefore, the evidence of the Doctor shows that she was murdered and the injuries were ante-mortem in nature. 13. It was argued on behalf of the appellants that though it is stated in the FIR that Rs. 3,000 was given to Md. Anwar, husband of the deceased and in his evidence the informant (PW 8) stated that he had taken this amount from his mother, hut the informants mother has not been examined on this point. Therefore, the payment of part of the dowry amount to the accused is not proved by the prosecution. There is also no reliable evidence on the point that appellants were demanding Rs. 10,000 or buffalo in dowry. No independent witness has, been examined in support of this allegation. 14. The learned APP submitted that on the demand of dowry the evidence of PW-8 (the informant) is corroborated by PW-9 (Tazimuddin) who is brother of the deceased. There is also no reliable evidence on the point that appellants were demanding Rs. 10,000 or buffalo in dowry. No independent witness has, been examined in support of this allegation. 14. The learned APP submitted that on the demand of dowry the evidence of PW-8 (the informant) is corroborated by PW-9 (Tazimuddin) who is brother of the deceased. The demand of dowry was made by the accused inside the house of the informant, as such, there was no possibility of any other witness of the village on the point of demand of dowry. The learned APP further submitted that it is the case of the prosecution that when the informant failed to meet the demand of Rs. 10,000 made by his son-in-law, thereafter on the same night, i.e. on 5.7.1995 the accused Md. Anwar forcibly took away his wife Zarina from the house of the informant and has given threat to the informant. On the same night, Zarina died in her Sasuret land her dead body was thrown into the pond by the accused-persons. These facts and circumstances lead to the conclusion that accused-persons had committed murder of Zarina because the demand of dowry was not met by the informant. The defence has failed to give any explanation as to how Zarina has died and why her dead body was thrown into the pond instead of buried her as per the Muslim customs. The onus to explain these facts and circumstances are on the accused-persons because, admittedly she died within seven years of her marriage in her Sasural and before her death she was tortured for dowry by her husband. 15. I have scrutinised the evidence as discussed above, and find substance in the above submissions of the learned APP and come to the finding that appellants had made a demand of dowry of Rs. 10,000 or a buffalo from the informant and when this demand was not fulfilled appellant No. 1, the husband of Zarina forcibly took away his wife from her Naihar and in the same night she died and dead body was recovered from the pond. Therefore, the prosecution has been able to substantiate the charge under Sec. 304-B, I.P.C. against accused-appellant Md. Anwar beyond all reasonable doubts. However, from the evidence of PWs 8 and 9, it is clear that it was accused-appellant Md. Therefore, the prosecution has been able to substantiate the charge under Sec. 304-B, I.P.C. against accused-appellant Md. Anwar beyond all reasonable doubts. However, from the evidence of PWs 8 and 9, it is clear that it was accused-appellant Md. Anwar (husband of the deceased) who has assaulted Zarina resulting into her death. In their evidence they stated that other accused including the accused-appellant Abuzar Ali were standing thee. There is no specific allegation against other accused of assaulting the deceased Zarina. 16. The learned appellants lawyer submitted that there is no reliable and cogent evidence to substantiate the charge under Sec. 201, I.P.C. against the accused-appellant Abuzar Ali. Neither the informant (PW-8) nor PW-9 had seen this accused helping accused Md. Anwar in disposing of the dead body of Zarina. The trial Court has already given the benefit of doubt to other accused including accused Usuf Ali and Akram Ali for the charge under Sec. 201, I.P.C. As such, on the same evidence the conviction of appellant No. 2, Abuzar" Ali for the offence under Sec. 201, I.P.C. is not maintainable. 17. I have scrutinised the evidence of the informant and his son (PW-9) and find substance in the submissions made on behalf of the appellants lawyer. From their evidence, it is hot proved beyond doubt that appellant Abuzar Ali with the help of other accused had disposed of the dead body of Zarina with an intention to screen the evidence of murder. The evidence against this appellant is very weak and not reliable. As such, the conviction of accused appellant Abuzar Ali under Sec. 201 I.P.C. is set aside and he is acquitted and discharged from the liability of his bail-bonds. 18. From the discussions made above, I come to the finding that conviction of accused Md. Anwar under Secs. 304-B and 201, I.P.C. is based on reliable and cogent evidence and there is no reason to interfere with the finding of the trial Court with respect to the conviction of this appellant. As such his convection and sentence under Secs. 304-B and 301, I.P.C. is maintained. Appellant No. 1 is in jail custody. 19. In the result, the appeal is allowed in part. 20. Miss Bela Singh, Advocate has appeared in his case as amicus curiae and assisted the Court with her all sincerity. As such his convection and sentence under Secs. 304-B and 301, I.P.C. is maintained. Appellant No. 1 is in jail custody. 19. In the result, the appeal is allowed in part. 20. Miss Bela Singh, Advocate has appeared in his case as amicus curiae and assisted the Court with her all sincerity. The Legal Aid Committee of the Patna High Court is directed to pay her fees, in accordance with law. Let a copy at this judgment be made over to her.