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2003 DIGILAW 986 (JHR)

Taiyab Khan v. State of Bihar

2003-08-12

AMARESHWAR SAHAY

body2003
JUDGMENT Amareshwar Sahay, J.-AII the three appellants have been convicted by Vlth Additional Judicial Commissioner, Ranchi in S.T. no. 558/97, T.R. no. 40/97 vide judgment dated 6.9.1997 for committing the offence under Section 304B of the Indian Penal Code and they have been sentenced to undergo Rigorous Imprisonment for 10 years each for causing dowry death of Noorjahan Khatoon. 2. Being aggrieved by the said judgment of conviction and sentence the appellants have preferred the present appeal. 3. The prosecution case in brief is that Md. Hakim Khan (PW.1), son of late Jabbar Khan of village Idri, PS. Khunti, District Ranchi recorded his fardbeyan before Mandar Police Station on 10.2.1994 at Holy Family Hospital, Mandar stating therein that his younger sister, Noorjahan Khatoon was married to Taiyav Khan (appellant no. 1) of village Choreya in April 1991. Only after six months of the marriage the husband, Taiyav Khan, Father-inlaw Sattar Khan (appellant no 2) and mother-in-law, S,abiran Khatoon (appellant no. 3) started asking Noorjahan Khatoon to bring money from her "Naihar". They also threatened her that if she would not bring the money then they would kill her by not providing her food. The accused-appellants regularly tortured Noorjahan Khatoon on account of demand of dowry. On 9.2.1994 at about 10. PM. a man came to the Garage where informant,' younger brother used to work in the said Garage at Ranchi and informed him that his sister, Noorjahan Khatoon was lying unconscious in Mandar Hospital. The younger brother of the informant then came home and informed the members of the family about the said news, whereupon the informant and other members of the family members went to Mandar Holy Family Hospital in the same night and they reached there about 2 A.M. in the night, but they were not allowed to enter into the hospital at that time. In the morning about 6.15 A.M. when they went inside the hospital they learnt from a nurse that Noorjahan Khatoon died of poisoning. It was alleged in the F.I.R., that the appellants committed murder of Noorjahan Khatoon by administering poison on account of non-fulfillment of demand of dowry. 3. The defence version is that they are innocent and that the deceased was living separately with her husband and there was neither any demand of dowry nor she was subjected to cruelty or torture. 4. 3. The defence version is that they are innocent and that the deceased was living separately with her husband and there was neither any demand of dowry nor she was subjected to cruelty or torture. 4. All together seven witnesses were examined by the prosecution to prove its case. On behalf of the defence also two defence witnesses were examined. 5. There is no dispute of the fact that the appellant no. 1 is the husband of the deceased and appellants no. 2 and 3 are father-in-law and •mother-in-law of the deceased. There is no dispute also that the deceased died in the night of 9.2.1994 in Mandar Hospital within three years of her marriage with the appellant no. 1 and her death occurred otherwise than under normal circumstances. 6. Now it has to be examined as to whether before the death, the deceased was subjected to cruelty or harassment by the appellants in connection with any demand for dowry? 7. P.W. 1 Md. Hakim Khan has stated in his evidence that on 9.2.1994 a man, Khan came to the garage of his younger brother Taufike Khan, and informed him that his sister Noorjahan Khatoon was lying unconscious in the Mandar Hospital. Thereafter Taufik Khan came to the village Idri and informed the informant and other members of the family and then all went to Mandar Hospital in the same night to see Noorjahan Khan. They reached hospital at 2 A.M. in the night, when gate of the hospital was closed. In the morning they went inside the hospital and found his sister, Noorjahan Khatoon dead. The appellant no. 1, husband and appellant no. 2 father-in-law of the deceased were present in the hospital, on being enquired they told that Noorjahan Khatoon died due to consuming poison. This witness further stated that before her death, whenever Noorjahan came to her "Naihar" she always complained against her husband, mother-inlaw and used to tell that they were demanding Rs. 20,000/- by way of dowry and they also threatened her that if the demands of dowry is not fulfilled they would kill her without providing food. 8. P.W. 2, Md. Taufik Khan who is other brother of the deceased has corroborated the statements of P.W. 1. He has further stated that only after six months of the marriage of his sister, the appellants started demanding gold and silver etc. 8. P.W. 2, Md. Taufik Khan who is other brother of the deceased has corroborated the statements of P.W. 1. He has further stated that only after six months of the marriage of his sister, the appellants started demanding gold and silver etc. in dowry and they were also not providing food to his sister. She always complained against the appellants and she used to tell about their misbehaviour. He has further stated that due to torture and cruelty meted out his sister died by taking poison. He has further corroborated the fact that on 9.2.1994, he got information in his Sarage that his sister was lying unconscious in Mandar Hospital and thereafter went to home and informed his family members. From perusal of the evidence of this witness it appears that the defence gave specific suggestion during the cross-examination that victim lady was eccentric and she committed suicide by taking poi-• son. Therefore, it appears that the defence version is also that the deceased died due to poisoning. 9. P.W. 3 Md. Kamaruddin, who is the Mama of the deceased, resident of village Karra, has stated in his evidences that he was knowing the deceased who was married in village, Choreya and he has also stated that on hearing the news that deceased died of poisoning, he went to Mandar Hospital and saw the deceased lying dead. He further stated that he has heard that the in-law of the deceased used to torture her on account of demand of dowry and they also used to assault her. 10. P. W. 4 Zohra Khatoon is the mother of the deceased. In her evidence she has stated that on hearing the news of her daughter lying unconscious in Madar Hospital, she also went to the hospital along with his sons, where she found her daughter dead. In para 7 of her evidence she has stated that her daughter was being assaulted and tortured on account of demand of dowry by the in-laws. In para 8 of her evidence, she has stated that when her daughter used of come to "Maike" she told her several times that in-laws used to assault her for demand of dowry. She has further stated in her cross-examination that her son-in-law used to demand cash and ornaments but she was unable to meet his demand. In para 8 of her evidence, she has stated that when her daughter used of come to "Maike" she told her several times that in-laws used to assault her for demand of dowry. She has further stated in her cross-examination that her son-in-law used to demand cash and ornaments but she was unable to meet his demand. She has further stated that in the evening on 8.2.1992 there was a quarrel between mother-in-law and her daughter. Her daughter was slapped by her mother-in-law and because of that, her daughter took poison. 11. P.W. 5 Md Enamul Khan is a resident of village Choreya, i.e. the village of the in-laws of the victim. He has stated that he knew the deceased who was married to Taiyab Khan. Though he has stated in his evidence that he had never heard about the quarrel between the deceased and her mother-in-law, prior to the occurrence but he admitted in his evidence to have stated before the police about the quarrel between the deceased and her mother-in-law on the date of occurrence. In his cross-examination this witness has stated that he never heard about the demand of dowry. The evidence of this witness has to be scrutinized keeping in mind that this witness is a resident of the same Mohalla i.e. Mohalla in which the appellant reside. 12. P.W. 7 is the Medical Officer in the department of Forensic Medicine, Rajendra Medical College and Hospital, who held the post mortem examination on the dead body of the deceased. In his evidence he has stated that he did not find any evidence of any injury either external or internal on the dead body. The opinion regarding cause of the death was kept reserved pending chemical examination report for which Viscera was preserved for being sent for chemical examination. 13. P.W. 6 Md Sanaullah is the Investigating Officer. He has admitted that the had examined D.W. 1 and D.W. 2 during the investigation. 14. D.W. 1 Dhela Sao has stated In his cross examination in chief that he used to visit appellant's house but she never complained about ill-treatment and demand of dowry by her-in-laws and he has further deposed that deceased and her husband used to live separately from their parents. He has stated he could hot say as to how the deceased died. He has stated he could hot say as to how the deceased died. 15, D.W.2 Sanjiv Khan is also resident of the same village and his 'house is situated close to the house of the appellants. He also came to depose that victim lady never complained against the appellant that they used to demand of dowry or that they used to torture her. He further stated that deceased was living with her husband was separated from appellant nos. 2 and 3. 16. Mr. A.S. Dayal learned counsel for the appellants has submitted that the prosecution has changed the story from one stage to another. He submits that in the F.I.R. it was stated that poison was administered to the deceased whereas in the evidence it was stated that deceased took poison. He further submitted that in the F.I.R. it was not mentioned that the appellants were demanding Rs. 20,000/as dowry, whereas this story has been introduced during evidence. It was further submitted that the nurse, who in fact informed the informant party about the cause of death due to poison, has not been examined by the prosecution. Learned counsel further submitted that evidence of the prosecution witnesses are self contradictory and therefore they cannot be relied upon. He has further submitted that cause of the death was not known and therefore it cannot be said that death was caused due to poisoning and therefore, on this ground alone the prosecution case is liable to be disbelieved. 17. So far as the cause of the death is concerned, the defence has himself suggested to RW. 2 that the deceased died after taking poison herself. It further appears from the statement of the appellant no. 1 recorded under section 313 Cr. P.C. that they came to know in the hospital that the deceased died of poisoning. Therefore, in my opinion, the submission of the learned counsel for the appellants in this regard cannot be accepted. So far as the submission regarding changing the story from one stage to another as submitted by the learned counsel for the appellant is concerned, it appears that the fact remained that the deceased died either due to taking poison herself or by administering poison by in-laws in the house of the appellants and further that death occurred otherwise than normal circumstances. From the evidence of the prosecution witnesses it is clearly established that the deceased was being subjected to cruelty and torture on account of dowry and soon before her death, she always used to complain against appellants to her mother and brother and on this point the prosecution evidence is consistent that deceased was being subjected to cruelty and torture regularly on account of demand of dowry by the appellants. 18. Since it has been proved by the prosecution that death of the deceased occurred under abnormal circumstances within three years of her marriage and she was being subjected to torture and harassment by the appellants in connection with demand of dowry regularly and therefore the presumption would be that the appellants caused her death and therefore, I hold that the prosecution has been able to prove its case beyond any doubt and as such learned trial court has rightly convicted and sentenced the appellants under Section 3048 of the Indian Penal Code. 19. In view of my discussions and findings above, I do not find any merit in this appeal. Accordingly this appeal is dismissed and conviction and sentence passed against the appellants are hereby affirmed. 20. The appellants who are on bail, their bail bonds are cancelled and they are directed to surrender in the court below to serve out remaining period of sentence.