Research › Search › Judgment

Jharkhand High Court · body

2011 DIGILAW 912 (JHR)

Md. Asin @ Md. Yasin v. State of Jharkhand

2011-09-21

D.N.UPADHYAY, POONAM SRIVASTAV

body2011
Poonam Srivastav and D.N.Upadhyay,JJ. - The instant revision against the acquittal is received after remand by the Apex Court in Criminal Appeal No.51 of 2009, arising out of S.L.P.(Cri.) No.5185/2008 Md. Safdar @ Mastakin & Ors. Vs. State of Jharkhand & Anr to this Court. 2. A Division Bench of this Court allowed the revision and remanded the matter to the Trial Court for a fresh decision vide judgment dated 29th April, 2008, which was challenged before the Apex Court. The Apex Court was of the view that the judgment allowing the revision was cryptic and sketchy and is devoid of proper reasons and, therefore, the said judgment was set aside. 3. We have received the record after remission from the Hon'ble Supreme Court. 4. Heard the Counsel appearing on behalf of the revisionist i.e. the first informant of the S.T.No.387/2005, arising out of Dhanwar P.S. Case No. 190/2004 (G.R.No.2227/2004). 5. The Sessions Trial proceeded against three accused under Section 498A/34 and 304B/34 Indian Penal Code. The learned Sessions Judge had granted a clear acquittal coming to a conclusion that from the evidence a case of dowry death is not substantiated and, therefore, it cannot be said that the deceased was subjected to cruelty and tortured by inlaws for demand of dowry and she died an unnatural death within seven years of her marriage. 6. We have examined the judgment impugned as well as the record of the trial court. Evidently the death has taken place within seven years of marriage. The incident took place after five years and, therefore, the period to presume that the deceased met an unnatural death within seven years of marriage is in existence. 7. The second requirement to constitute a dowry death is demand of dowry. The allegation of cruelty and demand of dowry is made in the F.I.R. itself. A number of witnesses of fact were examined, namely, P.W. 1 (Samid Ali), P.W. 2 (Rubia Khatoon), P.W. 3 ( Diljan Ansari), P.W. 4 (Md. Saddique) and P.W. 5 (Md. Asin), who is the first informant. Though the witnesses of fact have stated that this was a 'Golat' marriage and there was no demand of dowry at the time of marriage but these witnesses have unequivocally stated that subsequent to the marriage, there was a consistent demand of T.V. and Motorcycle. No doubt P.Ws. Saddique) and P.W. 5 (Md. Asin), who is the first informant. Though the witnesses of fact have stated that this was a 'Golat' marriage and there was no demand of dowry at the time of marriage but these witnesses have unequivocally stated that subsequent to the marriage, there was a consistent demand of T.V. and Motorcycle. No doubt P.Ws. 1,2 & 3 have been declared hostile but P.W. 4, who is a resident of the same village where the 'Maika' of the deceased was situated and P.Ws. 7 & 8 are the brothers of the first informant. They have squarely supported the contention that there was demand of dowry and the deceased used to tell her family members that she is illtreated on account of nonfulfillment of demand of dowry. She was subjected to cruelty as well. P.W. 4 who resides in the same village, where the first informant resides, has stated in paragraph 5 of his statement during trial that 5 or 6 days prior to death, the deceased had visited her 'Maika' and informed them about the illtreatment for nonfulfillment of demand of dowry and that she was subjected to cruelty. 8. We have perused their statements and it appears that there was a demand of dowry. Last but not the least when the family members and the villagers visited the house of the accused, they found the dead body of Nasima Khatoon lying on the floor and froth was coming out from her mouth. It was a clear indication that it was not a case of natural death, besides there were injuries found on her body. However, we are not inclined to give our opinion on merit and assessment of evidence, since we are of the opinion that the order of acquittal was not justified and it calls for a fresh assessment of evidence and a new verdict. The learned Judge should have taken into consideration that mere existence of three aspects that there was demand of dowry as a result whereof death occurred within seven years of marriage and death appears to be apparently unnatural immediately the onus shifted on the shoulder of the accused to substantiate that it was a natural death and there was no demand of dowry in view of presumption drawn against the accused under Section 113B of the Evidence Act. The learned Sessions Judge committed an error while deciding the trial as any other regular trial, where a burden lies on the shoulder of the prosecution to substantiate its case beyond any reasonable doubt, which is not to be done in a case of "Dowry Death". 9. It is made clear that we are not expressing any opinion on merit or assessment of the evidence. We only remit the case to the trial court for retrial and for recording evidence, if it is necessary in the light of Section 113B Evidence Act. It is also made clear that in view of Section 113B the accused should be given an opportunity to discharge its onus since there is presumption against them. The case is remitted to the court of sessions. In the event the Sessions Judge is not available, the District Judge shall mark the case to any other Court having equivalent jurisdiction. 10. With these observations, the revision is allowed.