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2012 DIGILAW 430 (GAU)

Afsar Ali (MD. ) v. State of Assam

2012-04-03

A.C.UPADHYAY, ADARSH KUMAR GOEL

body2012
JUDGMENT A.C. Upadhyay, J. 1. Present appeal is filed by the accused/appellant challenging the judgment and order dated 17.5.08 passed by the learned Sessions Judge, Dhubri in Sessions Case No. 159/2004, convicting and sentencing the accused to suffer rigorous imprisonment for life with a fine of Rs. 20,000/- under Section 304(B) IPC, in default, simple imprisonment for one year and further convicting and sentencing the accused to undergo R.I. for 2 years under Section 498-A IPC, with further direction that both the sentence would run consecutively. The brief fact, leading to filing this appeal, is quoted here-in-below : The accused Afsar Ali married Laily Khatun and after some days of the marriage, he started torturing her for realization of dowry, and thereafter, on 24.2.2002, he caused her death by setting his wife on fire. The victim died sustaining the burn injuries on her person. On receiving the information, police registered a case and on completion of the investigation submitted charge sheet against the accused under Section 304B read with Section 3/4 of the Dowry Prohibition Act. The case was committed to the Sessions Court for trial. The learned Sessions Judge framed charges under Section 498-A and 304-B IPC against the accused. On reading over and explaining the charges, the accused persons pleaded not guilty and claimed to be tried. The prosecution examined as many as 11 witnesses including the Medical Officer and the Investigating Officer to prove the case against the accused person. But the defence adduced none on behalf of his defence. 2. On closing the prosecution evidence, the learned Sessions Judge recorded the statement the accused/appellant in terms of the provisions of Section 313 CrPC. The accused in his statement under Section 313 CrPC took the stand of total denial. Further the accused also declined to adduce any evidence on his defence. Considering all the evidence on record and after conclusion of the hearing, the learned Sessions Judge convicted and sentenced the accused persons as aforesaid, giving rise to this appeal. 3. Learned counsel for the appellant submitted that the prosecution has failed to establish any harassment on the person of the deceased by the accused and demand of dowry. The death of the deceased was an accidental death.. 4. In Kans Raj Vs. State of Punjab, (2000) 5 SCC 207 , the Apex Court observed as follows : 19. 3. Learned counsel for the appellant submitted that the prosecution has failed to establish any harassment on the person of the deceased by the accused and demand of dowry. The death of the deceased was an accidental death.. 4. In Kans Raj Vs. State of Punjab, (2000) 5 SCC 207 , the Apex Court observed as follows : 19. It is established that the death of Sunita Kumari by suicide had occurred within 7 years of her marriage and such death cannot be stated to have occurred in normal circumstances. The term "normal circumstances" apparently means natural death. This Court in Shanti v. State of Haryanal 5 held that: (SCC p. 373, para 4) where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before the death of the woman she was subjected to cruelty or harassment by her husband or his relations for or in connection with any demand for dowry, such death shall be called 'dowry death' and the husband or relatives shall be deemed to have caused her death and shall be punishable with imprisonment for a minimum of seven years but which may extend to life imprisonment. 20. In other words the expression "otherwise than under normal circumstances" would mean death not in the usual course but apparently under suspicious circumstances, if not caused by bums or bodily injury. 5. In Durga Prasad Vs. State of Madhya Pradesh, (2010) 9 SCC 73 , at page 76, the Apex Court observed as follows : As has been mentioned hereinbefore, in order to hold an accused guilty of an offence under Section 304-B IPC, it has to be shown that apart from the fact that the woman died on account of burn or bodily injury, otherwise than under normal circumstances, within 7 years of her marriage, it has also to be shown that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry. Only then would such death be called "dowry death" and such husband or relative shall be deemed to have caused the death of the woman concerned. 6. Only then would such death be called "dowry death" and such husband or relative shall be deemed to have caused the death of the woman concerned. 6. Learned PP has submitted that the death by burning is the major evidence to draw a presumption in terms of the provisions of Section 113(B) of Evidence Act. Learned PP submitted that demand of dowry cannot be proved in a golden scale and a married woman would not commit suicide without extreme harassment by in-laws. 7. In Shamnsaheb M. Multtani Vs. State of Karnataka, (2001) 2 SCC 577 , it has been held as under : 304-B. Dowry death.-- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called 'dowry death', and such husband or relative shall be deemed to have caused her death". 26. In the explanation to the section it is said that the word "dowry" shall be understood as defined in the Dowry Prohibition Act, 1961. 27. The postulates needed to establish the said offence are: (1) death of a wife should have occurred otherwise than under normal circumstances within seven years of her marriage; (2) soon before her death she should have been subjected to cruelty or harassment by the accused in connection with any demand for dowry. Now reading Section 113-B of the Evidence Act, as a part of the said offence, the position is this: If the prosecution succeeds in showing that soon before her death she was subjected by him to cruelty or harassment for or in connection with any demand for dowry and that her death had occurred (within seven years of her marriage) otherwise than under normal circumstances "the court shall presume that such person had caused the dowry death". 28. Under Section 4 of the Evidence Act "whenever it is directed by this Act that the court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved". So the court has no option but to presume that the accused had caused dowry death unless the accused disproves it. 28. Under Section 4 of the Evidence Act "whenever it is directed by this Act that the court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved". So the court has no option but to presume that the accused had caused dowry death unless the accused disproves it. It is a statutory compulsion on the court. However it is open to the accused to adduce such evidence for disproving the said compulsory presumption, as the burden is unmistakably on him to do so. He can discharge such burden either by eliciting answers through cross-examination of the witnesses of the prosecution or by adducing evidence on the defence side or by both. 8. In order to appreciate the submissions advanced by the learned counsel for the appellant and the learned PP, it would be apposite to discuss the evidence of prosecution witnesses : 9. PW.1, Hazrat Ali, is the maternal uncle of the deceased. PW-1 stated that his niece i.e. Laily Khatun was married to the accused three years ago. His niece informed him that her husband started torturing her demanding dowry. PW. 1 deposed that at first, the accused demanded Rs. 1000/- and then demanded Rs. 20,000/-, when the said demand was not met, his niece was burnt by her husband. PW. 1 saw some injuries on her body also. The accused and his family members ran away after the occurrence. Though PW. 1 was thoroughly cross-examined by the defence counsel, nothing important could be elicited in his evidence by the defence. 10. PW.2, Abdul Kuddus Ali corroborated the fact as stated by PW-1 and further stated that soon after the marriage with the victim girl, the accused started demanding dowry. 11. According to PW.2, after about 1 year from the taking of the cow as dowry, the accused again started demanding money from the deceased. When she failed to pay the money, she was set on fire by pouring kerosene on her body. When fire was set on her, she tried to jump in the pond but the accused did not allow her to jump in the pond and assaulted her with pointed sharp weapon and then the victim tried to escape from the accused and rushed towards the near by house and fell down on the door of the house. When fire was set on her, she tried to jump in the pond but the accused did not allow her to jump in the pond and assaulted her with pointed sharp weapon and then the victim tried to escape from the accused and rushed towards the near by house and fell down on the door of the house. Inmates of the house made the deceased to sleep on banana leaf. PW.2 has categorically stated to have seen burn injury on the person of the deceased. 12. PW.3, Hossain Ali, is the father of the victim i.e. Laily PW-3 deposed that the accused married to his daughter about 4 years ago. Thereafter, the accused started torturing her. Accused first demanded Rs. 1,000/- from PW-3, which was paid. Then, PW.3 handed over a cow to the accused and then again the accused demanded Rs. 20,000/-, which was not paid. Then the accused set his daughter on fire and also assaulted her. PW.3 went to the hospital and found Laily's dead body. PW.3 also saw some injuries caused by sharp weapon on her body 13. PW.4, Abbas Ali deposed that he heard hue and cry and saw fire in the house of the accused. The victim Laily who was trying to free herself from fire came out from the house and fell down near the house of Hajrat. PW.4 was then declared hostile and his statement made before the I/O was put to him to which denied. 14. In their cross-examination, both PW.2 and PW.3 categorically denied the suggestion that the accused had not demanded dowry from the deceased. However, from the evidence of PW.4, Abbas Ali, it clearly reflects that on hearing scream and shout, he had come out and saw that the deceased after catching fire came and fell in the house of Hazrat Ali. When the victim after catching fire ran away from her husband, it would imply that either she is scared of the inmates where she resided or she tried to save herself from the burning fire on her person. 15. PW.5, Yusuf Ali was declared hostile witness. He stated that the deceased died due to burn injuries when she caught fire. However, he confirmed that he did not witness the occurrence. 16. 15. PW.5, Yusuf Ali was declared hostile witness. He stated that the deceased died due to burn injuries when she caught fire. However, he confirmed that he did not witness the occurrence. 16. PW.6, Hazrat Ali, in whose house the hapless victim girl wanted to take shelter admitted the fact that he heard shout and scream and saw the victim girl running towards his house having no cloths on her body. She could not tell who set her on fire and then the accused came and took her away. PW.6, however, stated in his deposition that the victim could not say with certainty, whether she caught fire or she was set on fire by somebody else. 17. PW.9, Jamser Ali deposed that he heard shout and cry and he was in a close distance and he saw Laily running from the house of her husband. She fell down when running from the side of her husband. She came and fell down near the house of Hazrat Ali. PW.9 also stated that the victim sustained some injuries but ultimately, PW.9 also declared hostile. 18. According to PW.9 the occurrence took place at night on the day of holy 'Eid'. On that day, PW.9 was on the back of a pond as a guard. On the night of occurrence, PW.9 saw that the victim Laily fell down while she was running from the side of her husband. After running for some distance, she fell near the house of the Hazarat Ali, situated adjacent to the house of PW.9. PW.9 saw the deceased in a naked condition. By finding the victim in a naked condition, his daughter covered her with a gamosa (scurf). The victim was given water to drink and at the relevant time one Mayur, an employee of BSNL came to the place of occurrence. According to PW.9, the deceased got bum injuries as well as injuries caused due to assault on her person. However, on being asked by PW.9, the deceased could not say who set fire on her. 19. PW.8, Dr. Kochir Ali Ahmed, the Medical Officer, who examined the dead body of Laily Khatun on 26.2.2002 found the following injuries : 1. According to PW.9, the deceased got bum injuries as well as injuries caused due to assault on her person. However, on being asked by PW.9, the deceased could not say who set fire on her. 19. PW.8, Dr. Kochir Ali Ahmed, the Medical Officer, who examined the dead body of Laily Khatun on 26.2.2002 found the following injuries : 1. A young female dead body of about 24 years of age present with stiffness of limbs and 90% third degree flame bur injuries except lower half of her leg and feet and an incised wound on left groin (5" x 3" x 2") right groin (2" x 1" x 1") and left lumber region of the abdomen (4" x 3"x1") 2. Cranium and spinal canal all are healthy. 3. Thorax: Third degree flame bum of the wall with roasted underlying muscles of the chest. Lungs are congested and respiratory mucosa shows carbon and soot particles on both sides. Heart is healthy. But the blood inside the heard is cherry red colour and bloods of the great vessels are also of cherry red colour. 4. Abdomen: Third degree flame burn injury with charring at places and roasted underlying muscles on the abdomen. Others are healthy. In the abdomen there is partially digested food materials and fecal matter. 20. It is opined by the doctor that the death was due to asphyxia and shock as a result of ante-mortem flame injury about 90%. During cross-examination, the doctor stated that injuries on groin and lumber region were caused, on being hit by some pointed and sharp object. 21. PW. 11, Bimal Kanti Banerjee, the Investigating Officer, who was entrusted with the task of investigating of the case. He visited the spot, examined witnesses and brought the Magistrate for conducting autopsy. Thereafter, PW.11 sent the dead body for post mortem examination. 22. I/O deposed that he had examined PW.8, who stated before him that the victim, was running out being ablaze and Nausad Ali and Ayaz Ali, chased her with sticks in their hands. He further deposed that before the I/O that the victim ran and fell down before the house of Hazrat Ali in naked condition and on being asked she stated that her husband Afsar Ali assaulted her over the matter of demand for dowry. He further deposed that before the I/O that the victim ran and fell down before the house of Hazrat Ali in naked condition and on being asked she stated that her husband Afsar Ali assaulted her over the matter of demand for dowry. The I/O also deposed that PW.9 Jamser Ali stated before him that Laily Khatun stated that her husband assaulted her over the matter of dowry and hit her on back and belly and also poured kerosene over her. 23. On a careful scrutiny of the evidence of PWs. 1, 2 and 3, it clearly transpires that the accused had married Laily about 3 years ago and thereafter, the accused started demanding dowry. The witnesses also confirmed to have paid money to the accused as demanded. Though PW.2, Hazarat Ali deviated his statement made before the I/O and he was declared hostile, but he clearly stated that the victim was ablaze when she came running towards his house from the side of her husband and PW.9 saw the victim fell down in front of the house of Hazarat Ali. Thus, it appears that the accused was following the deceased when she was set on fire. Presence of injuries mark on the waist, left side of belly and also stabbing and burn injuries found by the Executive Magistrate in conducting the inquest of the dead body, coupled with the evidence of Medical Officer, who found incised wounds on the person of the deceased and left and right groin and also in lumber region, would go to show that before her death the victim was assaulted and injured. Admittedly, she was inside the residence at the time of occurrence. She came out running from the house with the company of her husband. Therefore, apparently she was in the company of her husband, in naked condition when she came running out of her house, after catching fire on her person. His husband, who was with her at the last moment and came out following the victim after she ran out from the house, did not come forward to explain as to how she caught fire. More particularly when the deceased was in his company at the last moment just before her death, sustaining burn injuries on her person. A duty is cast on the accused to explain when the victim was last seen together in the company of the accused. More particularly when the deceased was in his company at the last moment just before her death, sustaining burn injuries on her person. A duty is cast on the accused to explain when the victim was last seen together in the company of the accused. The allegation against the accused is clear as regards the demand of dowry and torture upon his wife. Apparently, the deceased not only sustained bum injuries but also had stabbing injuries on her person, as per the medical report of the doctor. Obviously, those injuries were not self inflicted injuries. 24. As per provision of Section 304(B) IPC, where the death of a woman is caused by any burn or bodily injury, or occurs otherwise than under normal circumstances, within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death. 25. In terms of Section 113(B) of the Evidence Act presumption can be drawn as to dowry death when the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry. In such a situation the Court shall presume that such person had caused the dowry death. 26. Though some of the witnesses, who happened to see the occurrence and hear the deceased narrating the sad story of cruelty perpetrated on her, were declared hostile. But despite so, with the aid of circumstantial evidence and the evidence of PW. 1, PW.2 and PW.3, coupled with the evidence of other witnesses discussed above, the prosecution could sufficiently prove beyond all reasonable doubt that the accused committed the offence under Section 304B IPC. Therefore, we find no illegality or irregularity in the judgment and order dated 17.5.08 passed by the learned Sessions Judge, Dhubri in Sessions Case No. 159/2004, convicting the accused under Section 304B IPC and Section 498A IPC. 27. Therefore, we find no illegality or irregularity in the judgment and order dated 17.5.08 passed by the learned Sessions Judge, Dhubri in Sessions Case No. 159/2004, convicting the accused under Section 304B IPC and Section 498A IPC. 27. Learned counsel for the accused/appellants in course of his argument had also made submission that taking the poorest view, even if the accused appellant is found guilty of committing offence under Section 304 (B) of the IPC, but under the circumstances, after hearing on the point of sentence the learned court below would not have awarded the maximum punishment i.e. imprisonment for life, since under the provisions of Section 304(B) of the IPC, for committing the dowry death punishment provided imprisonment for not less than 7 years, which may be extended to imprisonment for life. 28. The Apex Court in Hem Chand Vs. State of Haryana : (1994) 6 SCC 727 observed that severe sentence should be imposed on the perpetrators of gruesome murder of young wives, who have killed them only for the purpose of extraction of dowry. In this connection it is also pointed out that extreme punishment of life imprisonment is to be awarded in rare cases. 29. In Hemchand vs. State of Haryana (supra), the Hon'ble Supreme Court also observed that the maximum penalty (imprisonment for life) can be awarded only in rare cases. As mentioned above, Section 304-B IPC only raises presumption and lays down that minimum sentence should be seven years, but it may extend to imprisonment for life. Therefore, awarding extreme punishment of imprisonment for life should be in rare cases and not in every case. 30. In the background of the facts and circumstances of the instant case at the most it can be said that the prosecution proved that it was an unnatural death of the victim, in which case also Section 304-B IPC, would be attracted. But the factual aspect has certainly to be taken into consideration in balancing the sentence to be awarded to the accused. However, looking into the observation made by the Apex Court in Hemchand vs. State of Haryana (supra), we are of the view that a sentence of 10 years' rigorous imprisonment would meet the ends of justice in the instant case. We, accordingly, while confirming the conviction of the appellant under Section 304-B IPC, reduce the sentence of imprisonment for life to 10 years' R1. We, accordingly, while confirming the conviction of the appellant under Section 304-B IPC, reduce the sentence of imprisonment for life to 10 years' R1. The other conviction and sentence passed against the appellant are, however, confirmed. 31. In the result, the appeal is dismissed subject to the above modification of sentence. Send back the LCR forthwith. Appeal dismissed.