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2013 DIGILAW 101 (GAU)

Akbar Ali v. State of Assam

2013-02-08

P.K.MUSAHARY

body2013
This appeal is directed against the judgment and order dated 4.8.2005 passed by the learned Assistant Sessions Judge, Nalbari in Sessions Case No.82/2003 convicting the appellant under section 304(B), IPC and sentencing him to undergo rigorous imprisonment for ten years. 2. The prosecution story in brief is that the appellant married the informant's daughter Rafiya Begum and out of said wedlock a male child was born. The informant's daughter was allegedly killed by the appellant on 21.12.2002 due to failure of the informant to meet the dowry demand. The informant's FIR was received and registered as Belsor PS. Case No. 138/2001 under sections 498(A)/304(B), IPC. The usual investigation was carried out. The post mortem was conducted on the dead body of the deceased in the Nalbari Civil Hospital and after conclusion of the investigation and collection of the post mortem report, the I.O. concerned laid the charge sheet under the aforesaid sections of law. On committal, the learned Sessions Judge framed charge against eight accused persons, including the present appellant, under sections 498A and 304B/34, IPC. All the accused persons pleaded not guilty and claimed to be tried. They accordingly stood the trial. The prosecution examined 9 witnesses while the accused persons examined none. The accused persons took the plea of complete denial. On the basis of the materials and evidence on record the learned trial court convicted the present appellant Md. Akbar Ali under section 304B, IPC and sentenced to undergo rigorous imprisonment for 10 years. The other co-accused persons were acquitted. Hence this appeal by this present appellant alone against the said conviction and sentence. 3. I have carefully gone through the records as well as the evidence of the prosecution witnesses which are available on record. The informant, Md. Rahman Choudhury is the father of the victim and he was examined as PW-1. He has testified the fact of filing Ejahar but he has not stated anything about the dowry demand by the appellant and the other co-accused persons. The prosecution also examined some neighbours as independent witnesses namely PWs 2 and 3. They are reported witnesses and they have not stated about the dowry demand. From the evidence it is found that none of the witnesses except PW-5, mother of the deceased, made any statement regarding dowry demand. The prosecution also examined some neighbours as independent witnesses namely PWs 2 and 3. They are reported witnesses and they have not stated about the dowry demand. From the evidence it is found that none of the witnesses except PW-5, mother of the deceased, made any statement regarding dowry demand. In the evidence of PW-5 there is a little reference about the demand for gold ring by the present appellant from the in laws to give it as a present to the grandson the occasion of his birthday. It cannot, in true sense, be termed a dowry demand inasmuch it was only a demand for the grand son and not for himself or any of the in laws. There is nothing in the evidence that the appellant, and for that matter, any of the co-accused or relative of the appellant demanded dowry in the form of cash or kind. 4. As regards the allegation of torture on the victim none of the witnesses have stated that they have ever seen or witnessed any act of physical or mental torture perpetrated by the appellant or the family members of the appellant on the victim. The prosecution in my considered view, could not place any material to bring home the charge of torture related to dowry demand within the meaning of sections 498 and 304B, IPC. 5. As per the medical evidence particularly the evidence of Dr. Sarojoni Mojumdar Choudhury (PW8), the deceased died due to asphyxia following strangulation. The opinion of the medical officer may be correct but there is no ocular evidence that it was the appellant who caused the death by strangulation. It appears from the evidence of PW4, Sayeda Runu Begum (PW6) that the victim was shifted to Nalbari Civil Hospital in his rickshaw and the victim was found alive and she was vomiting. There were two other ladies accompanying the victim. They were Rahina and Nasina. The prosecution did not examine them as witnesses. There is nothing on record that the victim made any dying declaration while she boarded the rickshaw towards the civil hospital. There is also no evidence that the victim, while under treatment in the civil hospital, made any dying declaration or she intended to make such dying declaration against the appellant or any other family members of the appellant. There is nothing on record that the victim made any dying declaration while she boarded the rickshaw towards the civil hospital. There is also no evidence that the victim, while under treatment in the civil hospital, made any dying declaration or she intended to make such dying declaration against the appellant or any other family members of the appellant. In absence of such dying declaration the court cannot come to a conclusion that the appellant committed the alleged offence. Moreover, there is no evidence on record that the relationship between the victim and the appellant was strained for some reasons while they have been living as husband and wife. There is also nothing on record that the deceased ever made any complaint before the police or before any authority about the alleged physical torture on her by in laws and the appellant at any point of time. 6. What is most material for awarding conviction under section 304B is that the demand for dowry by the husband or the relatives of the husband should be made out or established for connecting the death of the wife with dowry demand within seven years of the marriage and unless the prosecution succeeds in proving the same the accused cannot be convicted and punished under section 304B, IPC. There may be a case under section 302, IPC but in the present case no charge framed under the said section. The court cannot proceed on the presumption that the appellant committed murder attracting provision under section 302, IPC. In view of the above, I am not agreeable to uphold the judgment and order of conviction and sentence as rendered by the learned trial court inasmuch as the allegation of dowry demand could not be proved by cogent evidence and no iota of evidence is available in support of the allegation that the appellant had done away his wife by strangulation or in any Wrongful manner. In my considered view the charge could not be established beyond all reasonable doubt and as such the appellant is entitled to acquittal on benefit of doubt. Accordingly, the impugned judgment convicting and sentencing the appellant is hereby quashed and set aside. The appellant is acquitted on benefit of doubt. He be set at liberty forthwith if his further detention is not required in connection with any other case. 7. The appeal succeeds. Return the LCRs.