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Jharkhand High Court · body

2010 DIGILAW 971 (JHR)

Manjoor Alam v. State of Jharkhand

2010-10-06

JAYA ROY

body2010
JUDGMENT : 1. Heard the learned Counsel for the Appellants and the learned Counsel for the State. 2. This appeal is directed against the judgment of conviction and order of sentence dated 18.4.2001 and 21.4.2001 passed by Sri Rajesh Kumar Dubey, III Additional Sessions Judge, Giridih, in Session Trial Case No. 59 of 1994 whereby the Appellant No. 1 Manjoor, husband of the deceased, has been convicted under Sections 304-B and 498-A of IPC and sentenced him to undergo rigorous imprisonment of 10 years for the offence u/s 304-B and further sentenced him to undergo rigorous imprisonment of 3 years for the offence u/s 498-A of IPC and the Appellant Nos. 2 and 3 namely Abdul Mian and Fatima Khatoon (the father-in-law and the mother-in-law of the deceased) have been convicted under Sections 304-B and 498-A of IPC and sentenced them to undergo imprisonment of 7 years for the offence u/s 304-B and further sentenced them to undergo rigorous imprisonment for 2 years for the offence u/s 498-A of the IPC. All the sentences awarded against each of the accused convicts will run concurrently. 3. The learned Counsel appearing for the Appellants, submits that the convictions of the Appellants under Sections 498, 304-B are bad in law since there are no cogent evidence to prove that all the Appellants are guilty under Sections 498-A and 304-B of the Indian Penal Code. 4. The prosecution case as stated in FIR, in brief, is that the deceased Roshan Ara @ Munni was married with the Appellant No. 1 namely Manjoor Alam son of the Appellants Abdul Mian and Fatima Khatoon, resident of Pipratand on 5.5.1993. After marriage Roshan Ara went to her matrimonial home. In the marriage, father of the deceased, Murshid Alam (PW-13) gave Rs. 25,000 in cash, one gold ring, chain and watch, etc. in dowry. After the marriage the deceased was living in her matrimonial home. Thereafter, all the accused started demanding a gold ring and a scooter as agreed at the time of marriage. The accused persons threatened Roshan Ara (the deceased) that if the demand of gold ring and scooter will not be fulfilled, then she (the deceased) will not be allowed to live in her matrimonial home and the accused Appellant Manjoor Alam will go for another marriage. The accused persons threatened Roshan Ara (the deceased) that if the demand of gold ring and scooter will not be fulfilled, then she (the deceased) will not be allowed to live in her matrimonial home and the accused Appellant Manjoor Alam will go for another marriage. Roshan Ara (the deceased) told these facts to her parents and others when she came back to her parent house. She informed about these facts to her parents by letter also stating that accused persons are assaulting her for the said demand and threatening her, if the demand shall not be fulfilled then her husband Manjoor will go for another marriage and she shall be driven out from her matrimonial home. Receiving this information father of the deceased Murshid Alam came to the matrimonial home of her daughter (the deceased) and asked his son-in-law not to torture her daughter and told his liability to give scooter due to his poverty. Hearing this, accused Abdul Alam and Fatima became angry, then the father of the deceased anyhow consoled them and committed to fulfil the said demand within a year. According to the prosecution case Roshan Ara (the deceased) was brutally assaulted by the accused persons and, thereafter, she was thrown into the well. 5. On 27.10.1993 the parents of the deceased and other relatives of the deceased came to know about the death of Roshan Ara when her body found in well. PW-10 Ashique Hussain Ansari the informant of the case who is near relation of the deceased, gave a written report about the death to the Police Station. 6. On the basis of the said FIR, the police registered a case for the offence under Sections 498-A and 304-B of the IPC and after investigation, submitted charge-sheet under Sections 498-A and 304-B read with Section 34 of the IPC against all the accused Appellants. 7. It appears that in course of trial, the prosecution has examined fifteen witnesses. PW-1 Jabbar Mian PW-2 Mustaque Alam PW-3 Dr. B.P. Singh PW-4 Akbar Mian PW-5 Ramjan Mian PW-6 Saddique Mian was tendered PW-7 Nabi Mian PW-8 Md. Yakub was tendered PW-9 Samsad Begum PW-10 Ashique Hussain Ansari (informant) PW-11 Dr. Imran Sicko PW-12 Dr. 7. It appears that in course of trial, the prosecution has examined fifteen witnesses. PW-1 Jabbar Mian PW-2 Mustaque Alam PW-3 Dr. B.P. Singh PW-4 Akbar Mian PW-5 Ramjan Mian PW-6 Saddique Mian was tendered PW-7 Nabi Mian PW-8 Md. Yakub was tendered PW-9 Samsad Begum PW-10 Ashique Hussain Ansari (informant) PW-11 Dr. Imran Sicko PW-12 Dr. Kaushlendra Kumar PW-13 Murshid Alam father of the deceased PW-14 Jarina Khatoon mother of the deceased PW-15 Dinesh Kumar Rana the I.O. of the case The defence has examined one witness i.e. DW-1 Lukhman Ansari. 8. The prosecution exhibited Ext.1 Inquest report and Ext.2 p.m. Report, Ext.3 is FIR, and the Exts.4 to 4/2 are signatures of the Doctors on the postmortem report. 9. It appears from the evidence of PW-1 Jabbar Mian stated that Roshan Ara was the daughter of Murshid Alam (PW-13) was married with the accused Manjoor Alam the Appellant No. 1 of Pipratand on 5.5.1993 after marriage she was living in her matrimonial home. Manjoor Alam her husband used to assault her for dowry. He demanded ring and his demand were fulfilled. Thereafter, he demanded scooter. His father Abdul Mian and other family members also demanded the same. As the scooter was not given as such on 27.10.1993, Roshan Ara was killed and her body was thrown into the well. In his cross-examination, he has stated that his information is based on hearing and he further stated that he does not know how she died in the well. It has further come in his cross-examination that he never heard any complain from the victim girl and whatever he has said regarding torture that is hearsay. 10. PW-2 Mustaque Ahmad stated that he heard that one girl died due to fall in the well at Pipratand. He went there and found the dead body of the lady was kept on a cot. He found that tongue of the deceased intruding out from the mouth. He has identified the signature of Ashique Hussain Ansari on inquest report. It has come in his cross-examination that he never heard any complain from the victim girl Roshan Ara nor his parents and maternal uncle (mausa) made any complain before him. 11. PW-3, 11, 12 are the Doctors namely Dr. I.P. Singh, Dr. Imran Shikha and Dr. Kushlendra Kumar and the Board of these three doctors performed the post-mortem of the deceased. 11. PW-3, 11, 12 are the Doctors namely Dr. I.P. Singh, Dr. Imran Shikha and Dr. Kushlendra Kumar and the Board of these three doctors performed the post-mortem of the deceased. They have found teeth intact, tongue and some scratches over right forearm 1/2" x 1/4" ante-mortem in nature. According to the doctors death was due to asphyxia as a result of drowning. 12. PW-4 is Md. Akhbar Mian stated that at 6.30 a.m. he heard alarm coming from the house of Abdul Mian. Hearing alarm, he went there and found a number of persons gathered there. This witness saw Roshan Ara (the deceased) was taken out from the well. He came to know there that while Roshan Ara went to take out water, she fell down into the well. In the cross-examination this witness has stated that he is neighbour of the accused. The female members of his house used to visit the house of the accused. He never heard any complain about the torture to the deceased It has come in his cross-examination that there was a good relationship between the husband and the wife, both used to go Bermo together. He has further stated in para-6 of his evidence that Manjoor is only son of his parents and Roshan Ara being only wife of Manjoor, she was loved by all. Even female members of his house who often used to go to Manjoor's house, Roshan Ara never told them about any trouble or regarding and demand made by her in-laws. 13. PW-6 and PW-8 were tendered and PW-9 was declared hostile. PW-7 is Nobi Mian. This witness has stated that the deceased Roshan Ara was married with the accused Manjoor. The marriage took place within six months before death of Roshan Ara. On the day of occurrence at 6 a.m. he heard alarm from one Rajia, daughter of accused Abdul Mian, hearing alarm he along with others went near the well of Abdul Mian and found Roshan Ara inside the well. At that time Roshan Ara was alive but when she was taken out of the well, she was dead. 14. The PW-10 Ashique Hussain Ansari is the informant, one of the most important witnesses in this case. According to him on 27.10.1993 at 8 a.m. in the morning someone told him that Roshan Ara died due to drowning in the well. 14. The PW-10 Ashique Hussain Ansari is the informant, one of the most important witnesses in this case. According to him on 27.10.1993 at 8 a.m. in the morning someone told him that Roshan Ara died due to drowning in the well. Roshan Ara was the daughter of his brother-in-law. He went to the matrimonial home of the deceased and found the body of the deceased was kept on a cot. Thereafter, he went to Giridih. He further stated that he was present at the time of marriage. In marriage, the parents of the deceased gave sofa set, almirah, utensils and cash of Rs. 25,000, etc. in dowry. He lodged a written report to the police station with his signature. He further stated that he never visited the matrimonial home of the deceased. He never heard any complain from anyone about the torture and demand of dowry. He has stated in para-8 of his evidence that he has no personal knowledge whatever he has stated in the FIR is hearsay. Further, in cross-examination he has stated that golden ring was given to Manjoor by the parents of the deceased and parents of the deceased undertook to give scooter but he has got no personal knowledge about it rather he has heard about it. It is strange that this witness did not fully support the prosecution case. 15. That the PW-13 is Murshid Alam the father of the deceased is also one of the most important witnesses of this case. He stated that Roshan Ara was his daughter and he got his daughter married with Manjoor Alam on 5.5.1993 and at the time of marriage he fulfilled all the demand which was agreed between him and the parents of Manjoor Alam and sent her daughter Roshan Ara to her matrimonial home. At the time of marriage, he gave various ornaments of silver and gold, Godrej Almirah, Sofa set, table fan, watch, cloths, utensils to her daughter and son-in-law. One month after the marriage, accused Manjoor, Abdul and Fatima demanded gold ring and one scooter from her daughter and asked her to bring the same from her father. When he came to know about this fact, he went to Pipratand, the matrimonial home of his daughter. One month after the marriage, accused Manjoor, Abdul and Fatima demanded gold ring and one scooter from her daughter and asked her to bring the same from her father. When he came to know about this fact, he went to Pipratand, the matrimonial home of his daughter. Keeping in view to the happiness and comfort of her daughter, he agreed to fulfil the demand within a year and anyhow pacified the matter and came back to his house. Later on, he came to know that his daughter was tortured by his son-in-law and other in-laws also assaulted her daughter. Her daughter informed him by sending a letter. In the said letter, her daughter had written that her husband and other in-laws assaulted her and kept her hungry. It is pertinent to mention here that at para-19 of his cross-examination he has stated that the said letter is not with him and he showed the said letter to his brother-in-law Ashique Hussain who is PW-10 but this was not put to PW-10 to test the truth of the matter whether the letter was at all written and shown to PW10 Ashique Hussain. This witness further said in the night of 26.10.1993 accused Manjoor, Fatima and Abdul and Babuni killed her daughter and had thrown her dead body in the well on 27.10.1993. It is pertinent to mention here that medical report shows that she died due to asphyxia caused by drowning. 16. The PW-14, Jarina Rhatoon is the mother of the deceased. She has stated that her daughter Roshan Ara was married on 5.5.1993 with the accused Manjoor. In the marriage Rs. 10,000 in cash and goods worth Rs. 25,000 and ornaments, etc. were given in dowry. She did not receive any complain till one month after marriage. Thereafter, the accused Manjoor and sister of the accused Manjoor started to torture Roshan Ara and asked Roshan Ara to bring a gold ring and a scooter from her parents. Roshan Ara told her about the said demand also told that the accused Manjoor had threatened her if the demand shall not be fulfilled then she will face with dire consequence. She sent money through her daughter for purchasing a gold ring. Thereafter. Roshan Ara went to her matrimonial home then again the accused started to torture Roshan Ara for the demand of a scooter. She sent money through her daughter for purchasing a gold ring. Thereafter. Roshan Ara went to her matrimonial home then again the accused started to torture Roshan Ara for the demand of a scooter. As the torture was continued on the deceased Roshan Ara, Amjad, Ashique and her husband went to the matrimonial home of her daughter at Pipratand. They requested the accused persons for keeping her daughter well and took time for one year for fulfilling the demand of scooter. On 27.10.1993 her elder brother informed him at Phusro that Roshan Ara, her daughter is subjected to death by accused persons and the accused persons has thrown her body into the well. Thereafter, she along with her husband came to Banderkupi. She remained at Banderkupi and her husband went to Pipratand the matrimonial home of Roshan Ara. After post-mortem examination, the dead body of Roshan Ara was brought and then she saw the dead body. She saw her tongue came out from her mouth. But she has stated that she has not stated all these things before the police earlier. For the first time, she has stated before the Court. In cross-examination she has stated that she is living with her husband in Phusro and her husband is working in a company at Bermo. 17. PW-15 Dinesh Kumar Rana is the I.O., according to this witness he went to the place of occurrence situated at Pipratand and first prepared the inquest report and sent it for P.M. examination to Sadar Hospital, Giridih. This witness inspected the P.O. The P.O. is house and well of the accused Abdul Mian situated in Pipratand. According to his witness, he examined Nabi Mian, Yakub Mian, Akbar Mian, Saddique Mian, Mustaque Ahmad, Murshid Alam, Jarina Khatoon and Jabber Mian at the P.O. and on the same day, he collected the postmortem report and handed over the investigation to Irshad Ali. The prosecution has taken contradiction in the statement of the witnesses before the Court and before the police who did not support the prosecution case in the Court. In cross- examination, he has stated none of the witnesses produced any letter to him written by Roshan Ara (the deceased). The defence has also examined one witness DW-1 Lukman Ansari. 18. Mr. In cross- examination, he has stated none of the witnesses produced any letter to him written by Roshan Ara (the deceased). The defence has also examined one witness DW-1 Lukman Ansari. 18. Mr. Chhabra, learned Counsel appearing for the Appellants placed the evidence of the witnesses before me as mentioned above and submitted that Sections 304-B, IPC requires the following ingredients to be established before the presumption can be drawn u/s 113-B of the Indian Evidence Act: (a) the death of a women is caused by any burn or bodily injury or occurs otherwise than under normal circumstances within seven years of the marriage. (b) it must be shown that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of her husband. (c) such cruelty or harassment must be in connection with the demand of dowry. To support this contention, he placed reliance on a case reported in Tirath Kumar @ Raj Rani and Another vs. State of Haryana, (2005) 12 SCC 561. 19. The learned Counsel further argued that there is general allegation that demand of dowry was made against the accused husband and his family members the father and mother of the Appellant No. 1 as such the Appellant Nos. 2 and 3 are entitled to benefit of doubt. To support his contention, he relied on the decision reported in Salamat Ali and Others vs. State of Bihar, 1997 SCC (Cri) 842. This reported case supports the Appellant's Counsel contention that there is general allegation against the father and mother of the Manjoor Alam i.e. Appellant Nos. 2 and 3 Abdul Mian and Fatima Khatoon as such they deserve benefit of doubt. More so when father of the deceased PW-13 Murshid Alam in his evidence stated that her daughter informed him by sending letter. In the said letter, her daughter had written that her husband and other in-laws, assaulted and kept her hungry and tortured her. It is pertinent to mention here that at para-19 of his cross-examination he stated that the letter is not with him but he showed the said letter to his brother-in-law Ashique Hussain who is PW-10 but this was not put to PW-10 to test the truth of the matter. In that view of this, according to the learned Counsel Appellant Nos. 2 and 3 deserve benefit of doubt. 20. Mr. In that view of this, according to the learned Counsel Appellant Nos. 2 and 3 deserve benefit of doubt. 20. Mr. Chhabra has further pointed out that the PW-7 has very specifically stated in his evidence that on hullo, he reached to the place of occurrence and found Roshan Ara (the deceased) in the well and at that time she was alive but while her body was pulling out from the well, she died. He has further contended that from the Inquest Report (Ext.1) and from the Post-mortem Report (Ext.3) it appears that no grievous ante mortem injury was found on the body of the deceased Roshan Ara except few scratches. Furthermore, the board of three doctors who held the post-mortem, has opined the death was due to asphyxia as a result of drowning. 21. The Counsel appearing for the State opposed the contention of the learned Counsel of the Appellants and has submitted that PW-13 and PW-14 have stated about the torture and demand of dowry very specifically. Therefore, the Trial Court has rightly convicted the Appellants. 22. Considering the evidence as discussed earlier in detail and the materials available on record i.e. the Post-mortem Report (Ext.2) and Inquest Report (Ext.1), I find that the prosecution has failed to prove its case beyond all reasonable doubts. In my opinion the Appellants are entitled to benefit of doubt. Therefore, giving them the benefit of doubt, I set aside the conviction and sentence awarded by the Trial Court to them. The three Appellants namely Manjoor Alam, Abdul Mian and Fatima Khatoon are acquitted of all the charges and their bail bonds and sureties shall stand discharged. 23. Accordingly, the appeal is allowed.