Research › Search › Judgment

Chhattisgarh High Court · body

2013 DIGILAW 175 (CHH)

SAMSUDDIN v. STATE OF C. G.

2013-06-14

Radhe Shyam Sharma

body2013
JUDGMENT 1. This appeal is directed against the judgment dated 22-02-2008 passed by Sessions Judge, Durg in Sessions Trial No. 184/2006. By the impugned judgment, accused persons /appellants Samsuddin and Smt. Khatun Nisha have been convicted and sentenced in the following manner with a direction to run the sentences concurrently: Conviction Sentence Under Section 498A IPC Rigorous imprisonment for 1 year and to pay fine of Rs. 500/-, in default of payment of fine, to further undergo rigorous imprisonment for 3 months, Under Section 304B IPC Rigorous imprisonment for 10 years. 2. The case of the prosecution, in brief, is as under : Rehana Begum (deceased) was daughter of Mohammed Lal Khan (PW-6) and Shahida Begum (PW-7). Appellant No. 1 Samsuddin is husband and appellant No. 2 Khatun Nisha is mother of appellant No.1 Samsuddin. Marriage of deceased Rehana Begum was solemnized with appellant Samsuddin on 06-06-2004. Mohammed Kalam (DW-1) is maternal uncle of appellant No.1 Samsuddin. He was mediator of the marriage between the deceased and appellant Samsuddin. Mohammed Lal Khan (PW-6) gave sufficient dowry at the time of marriage. After the marriage, appellant Samsuddin maintained the deceased well for 6 months, but, thereafter, the appellants began to harass the deceased demanding television, sofa and vehicle. The deceased informed about this harassment to her parents. Mohammed Lal Khan (PW-6) went to Mohammed Kalam (DW-1) (maternal uncle of appellant Samsuddin) and told him that the appellants were demanding television, sofa and vehicle as dowry. Mohammed Kalam (DW-1) promised to Mohammed Lal Khan (PW-6) that he would inculcate the appellants that they may not make such demand. Even after the assurance given by Mohammed Kalam (DW-1), the appellants continued demanding dowry, and harassment and maltreatment was meted out by the appellants to the deceased. The deceased used to visit her paternal house and at that time she was quite silent. On being asked, she narrated to her parents that the appellants were demanding dowry and maltreating her. On 14-05-2006, Mohammed Lal Khan (PW-6) received telephonic information from Mohammed Sultan (maternal uncle of appellant Samsuddin) that the deceased was ill and was not feeling well. Mohammed Lal Khan (PW-6) and other family members went to the house of the appellants. When they reached the house of the appellants, Mohammed Sultan told him that the deceased had died and was taken to Sector 9 Hospital, Bhilai. Mohammed Lal Khan (PW-6) and other family members went to the house of the appellants. When they reached the house of the appellants, Mohammed Sultan told him that the deceased had died and was taken to Sector 9 Hospital, Bhilai. Intimation that the deceased was brought dead in casualty of Sector-9 Hospital, Bhilai was sent by the hospital to Police Station, Bhilai Nagar vide Ex.-P/2. On the basis of Ex.-P/2, Merg Intimation (Ex.-P/4) was recorded in Police Station Bhilai Nagar. Mohammed Lal Khan (PW-6) also gave written complaint (Ex.-P/5) in Police Station Bhilai Nagar. On the basis of Ex.-P/5, First Information Report (FIR) (Ex.-P/6) was registered against the appellants for offence under Section 304B read with Section 34 IPC. The Investigating Officer along with Additional Tahsildar Arvind Dixit (PW-10) reached Sector 9 Hospital, Bhilai and gave notice (Ex.-P/9) to panchas and prepared inquest (Ex.P/10) on the dead body of the deceased. The dead body of the deceased was sent to District Hospital, Durg for post mortem examination vide Ex.-P/7. The post mortem was conducted by Doctor M.C. Mohnot (PW-8) along with Doctor S.K. Mishra and they gave their report (Ex.-P/8), in which, they mentioned that cause of death was asphyxia as a result of ante mortem hanging. A chunari was seized from appellant Samsuddin vide Ex.-P/1. After completion of the investigation, charge sheet was filed against the appellants in the Court of Judicial Magistrate First Class, Durg, who, in turn, committed the case to the Court of Session, Durg, who conducted the trial and convicted and sentenced the appellants as mentioned above. 3. In support of its case, the prosecution examined Samual Samad (PW-1), Rajendra Rajak (PW-2), ASI Jagdish Yadav (PW-3), ASI K.C. Das (PW-4), Shyam Lal Sahu (PW-5), Mohammed Lal Khan (PW-6, father of the deceased), Shahida Begum (PW-7, mother of the deceased), Doctor M.C. Mohnot (PW-8), Ramesh Nayar (PW-9), Additional Tahsildar Arvind Dixit (PW-10), Amarjeet Singh (PW-11), Constable Bihari Lal (PW-12), ASI J.L. Shandilya (PW-13), SDO(P) Prafull Kumar Thakur (PW-14) and Niyaj Ahmed Khan (PW-15). The appellants examined Abdul Kalam (DW-1) and Balram Ratrey (DW-2) as defence witnesses. 4. Shri Vivek Sharma, learned counsel for the appellants argued that the prosecution has utterly failed to prove the case against the appellants. He further submitted that there was no demand for dowry by the appellants. The appellants examined Abdul Kalam (DW-1) and Balram Ratrey (DW-2) as defence witnesses. 4. Shri Vivek Sharma, learned counsel for the appellants argued that the prosecution has utterly failed to prove the case against the appellants. He further submitted that there was no demand for dowry by the appellants. From the evidence of Mohammed Lal Khan (PW-6) and Shahida Begum (PW-7), it is clear that the appellants did not demand dowry after the marriage for 6 months. The evidence of Ramesh Nayar (PW-9), Amarjeet Singh (PW-11) and Niyaj Ahmed Khan (PW-15) are hearsay evidence and are not admissible in evidence. He further submitted that the prosecution has failed to prove that the deceased was subjected to cruelty or harassment by the appellants in connection with demand of dowry. It was not shown that any harassment or cruelty was subjected to the deceased. The appellants cannot be convicted on the basis of suspicion or imagination. The prosecution has utterly failed to establish the ingredients of Section 304B and 498A IPC against the appellants. He placed reliance on Sham Lal etc. Vs. State of Haryana etc. Cr.C.P. (SC) 1997 Page 149, Sumati Jain and others Vs. The State of Madhya Pradesh 2009(3) MPHT 495 and Manoj Kumar and others Vs. State of Chhattisgarh 2008(5) MPHT 67 (CG). 5. Shri Aditya Sharma, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that there was clear evidence led by the prosecution through Mohammed Lal Khan (PW-6), Shahida Begum (PW-7), Ramesh Nayar (PW-9), Amarjeet Singh (PW-11) and Niyaj Ahmed Khan (PW-15). There was demand of dowry of television, sofa and vehicle by the appellants after the marriage. Sufficient evidence is available on record that the appellants harassed the deceased on account of which the deceased had no other option but to commit suicide. The conviction and sentence awarded to the appellants do not warrant any interference by this Court. 6. Having heard rival contentions of the parties, I have perused the record of Sessions Trial No. 184/2006. The conviction of the appellants under Section 304B and 498A IPC is based on the evidence of Mohammed Lal Khan (PW-6), Shahida Begum (PW-7), Ramesh Nayar (PW-9), Amarjeet Singh (PW-11) and Niyaj Ahmed Khan (PW-15). 7. It is not disputed that the deceased died due to hanging. The conviction of the appellants under Section 304B and 498A IPC is based on the evidence of Mohammed Lal Khan (PW-6), Shahida Begum (PW-7), Ramesh Nayar (PW-9), Amarjeet Singh (PW-11) and Niyaj Ahmed Khan (PW-15). 7. It is not disputed that the deceased died due to hanging. It is also not disputed that the deceased died within 7 years of her marriage and her death was otherwise than in normal circumstances. 8. Mohammed Lal Khan (PW-6), Shahida Begum (PW-7), Ramesh Nayar (PW-9), Amarjeet Singh (PW-11) and Niyaj Ahmed Khan (PW-15) deposed that Rehana Begum (deceased) was daughter of Mohammed Lal Khan (PW-6) and Shahida Begum (PW-7). They further deposed that the marriage of the deceased was solemnized with appellant No. 1 Samsuddin on 06-06-2004. Mohammed Lal Khan (PW-6) and Shahida Begum (PW-7) deposed that after the marriage, the deceased was residing in her matrimonial house. After 6 months of the marriage, the appellants started demanding television, sofa and vehicle and harassing and maltreating the deceased with regard to the demand of dowry. The deceased came to her paternal house and told Mohammed Lal Khan (PW-6) and Shahida Begum (PW-7) regarding the dowry demanded by the appellants. Mohammed Lal Khan (PW-6) deposed that he met with Mohammed Kalam (DW-1, maternal uncle of appellant Samsuddin) and narrated him the fact regarding demand of dowry made by the appellants. Mohammed Kalam (DW-1) told him that he would inculcate the appellants that they may not demand dowry in future. He returned his home after consolation given by Mohammed Kalam (DW-1). He further deposed that after sometime, the appellants again started maltreating and harassing the deceased for dowry. He further deposed that appellant Samsuddin left the deceased to his house, at that time, the deceased was not well and medical treatment was provided to her by him. The deceased stayed in his house for about 15-20 days, at that time, the deceased remained silent. On being asked, she told that the appellants demanded dowry and maltreated her. He further deposed that appellant Samsuddin came to his house and took the deceased. After 2 days, appellant Samsuddin again left the deceased to her paternal house. Shahida Begum (PW-7) also deposed in similar fashion. 9. On being asked, she told that the appellants demanded dowry and maltreated her. He further deposed that appellant Samsuddin came to his house and took the deceased. After 2 days, appellant Samsuddin again left the deceased to her paternal house. Shahida Begum (PW-7) also deposed in similar fashion. 9. Mohammed Lal Khan (PW-6) deposed that appellant Samsuddin took the deceased to his house and he promised him that he would never demand dowry in future and he would not harass the deceased. On above assurance given by appellant Samsuddin, he sent the deceased with appellant Samsuddin. After 7-8 days, he received telephonic information from Mohammed Sultan (maternal uncle of appellant Samsuddin) that the deceased was ill, then he and other family members went to the house of the appellants. When they reached the house of the appellants, Mohammed Sultan told him that the deceased had died and was taken to Sector 9 Hospital, Bhilai. Thereafter, he made written complaint (Ex.-P/5) in Police Station Bhilai Nagar. Shahida Begum (PW-7) also deposed in similar fashion. 10. ASI K.C. Das (PW-4) deposed that on 16-05-2006, Mohammed Lal Khan (PW-6) made written complaint (Ex.-P/5) in Police Station Bhilai Nagar. On the basis of Ex.-P/5, he registered Crime No. 187/06 (First Information Report) against the appellants for offence under Section 304B read with Section 34 IPC. 11. Shyam Lal Sahu (PW-5) deposed that he was posted as technician in Sector 9 Hospital, Bhilai. On 14-05-2006, he went to Police Station Bhilai Nagar and gave information regarding the death of deceased Rehana Begum, wife of appellant Samsuddin vide Ex.-P/2. 12. Additional Tahsildar/Executive Magistrate Arvind Dixit (PW-10) deposed that on 15-05-2006, he went to Sector 9 Hospital, Bhilai and gave notice (Ex.P-9) to the panch as and prepared inquest (Ex.-P/10) on the dead body of the deceased. 13. Niyaj Ahmed Khan (PW-15) and Ramesh Nayar (PW-9) also deposed that the inquest (Ex.-P/10) was prepared on the dead body of the deceased. In inquest (Ex.P-10), it is mentioned thus : ^^-----------vkSj okfjlku dk dFku lqus e`frdk dk fookg 2 o”kZ iwoZ gqvk gSA tks fd mlds ifr] lkl }kjk ngst dh ckr ij izrkfM+r djrs Fks dk fnukad 14&5&06 dks e`frdk lansgtud ifjfLFkfr es Qkalh yVd dj e`R;q gqbZ gS^^--------------- 14. In inquest (Ex.P-10), it is mentioned thus : ^^-----------vkSj okfjlku dk dFku lqus e`frdk dk fookg 2 o”kZ iwoZ gqvk gSA tks fd mlds ifr] lkl }kjk ngst dh ckr ij izrkfM+r djrs Fks dk fnukad 14&5&06 dks e`frdk lansgtud ifjfLFkfr es Qkalh yVd dj e`R;q gqbZ gS^^--------------- 14. Section 304B IPC runs 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. Explanation.-For the purpose of sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life." 15. Section 498A IPC runs as under : "498-A. Husband or relative of husband of a woman subjecting her to cruelty.-Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.-For the purpose of this section, "cruelty" means- (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand." 16. Section 113B of the Evidence Act runs thus : "113-B. Presumption as to dowry death.-When the question is whether a person has committed dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused dowry death. Explanation.-For the purpose of this section, "dowry death" shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860)." 17. In Kashmir Kaur and another Vs. State of Punjab 2013 AIR SCW 200, the Hon'ble Supreme Court observed thus : "11. In K. Prema S. Rao (supra) it has been held as under in paragraph 16:- “........... To attract the provisions of Section 304-B, IPC, one of the main ingredients of the offence which is required to be established is that "soon before her death" she was subjected to cruelty and harassment "in connection with the demand for dowry"." .......... 16. From the above decisions the following principles can be culled out: (a) To attract the provisions of Section 304B, IPC the main ingredient of the offence to be established is that soon before the death of the deceased she was subjected to cruelty and harassment in connection with the demand of dowry. (b) The death of the deceased woman was caused by any bum or bodily injury or some other circumstance which was not normal. (c) Such death occurs within seven years from the date of her marriage. (d) That the victim was subjected to cruelty or harassment by her husband or any relative of her husband. (e) Such cruelty or harassment should be for or in connection with demand of dowry. (f) It should be established that such cruelty and harassment was made soon before her death. (g) The expression (soon before) is a relative term and it would depend upon circumstances of each case and no straightjacket formula can be laid down as to what would constitute a period of soon before the occurrence. (h) It would be hazardous to indicate any fixed period and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. (h) It would be hazardous to indicate any fixed period and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. (i) Therefore, the expression "soon before" would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate or life link between the effect of cruelty based on dowry demand and the concerned death. In other words, it should not be remote in point of time and thereby make it a stale one. (j) However, the expression "soon before" should not be given a narrow meaning which would otherwise defeat the very purpose of the provisions of the Act and should not lead to absurd results. (k) Section 304-B is an exception to the cardinal principles of criminal jurisprudence that a suspect in the Indian Law is entitled to the protection of Article 20 of the Constitution, as well as, a presumption of innocence in his favour. The concept of deeming fiction is hardly applicable to criminal jurisprudence but in contradistinction to this aspect of criminal law, the legislature applied the concept of deeming fiction to the provisions of Section 304B. (l) Such deeming fiction resulting in a presumption is, however, a rebuttable presumption and the husband and his relatives, can, by leading their defence prove that the ingredients of Section 304B were not satisfied. The specific significance to be attached is to the time of the alleged cruelty and harassment to which the victim was subjected to, the time of her death and whether the alleged demand of dowry was in connection with the marriage. Once the said ingredients were satisfied it will be called dowry death and by deemed fiction of law the husband or the relatives will be deemed to have committed that offence." 18. In the instant case, the deceased died due to asphyxia as a result of hanging. Doctor M.C. Mohnot (PW-8) deposed that he conducted the post mortem examination on the dead body of the deceased along with Doctor S.K. Mishra and gave their report (Ex.-P/8), in which, they mentioned that the cause of death was asphyxia as a result of ante mortem hanging. 19. Doctor M.C. Mohnot (PW-8) deposed that he conducted the post mortem examination on the dead body of the deceased along with Doctor S.K. Mishra and gave their report (Ex.-P/8), in which, they mentioned that the cause of death was asphyxia as a result of ante mortem hanging. 19. Ramesh Nayar (PW-9) deposed that whenever the deceased fell ill, appellant Samsuddin left her in her paternal house. He further deposed that Mohammed Lal Khan (PW-6) told him that the deceased was being harassed and maltreated by the appellants with regard to demand of vehicle and he would arrange for finance and give vehicle to them. He further deposed that he went to the house of the appellants along with Mohammed Lal Khan (PW-6). Amarjeet Singh (PW-11) and Niyaj Ahmed Khan (PW-15) also deposed in similar fashion. 20. When the appellants were examined under Section 313 Cr.P.C. and asked about their defence, they simply replied that they have been falsely implicated. The appellants have not thrown any light as to how the deceased died and in what circumstances the incident took place. 21. Mohammed Lal Khan (PW-6) and Shahida Begum (PW-7) specifically deposed that just 7-8 days prior to the death of the deceased, she had come to their house and told that the appellants pressurized her for television, sofa and vehicle. At that time, the deceased had become over-emotional and silent. Ramesh Nayar (PW-9) and Niyaj Ahmed Khan (PW-15) also deposed that the deceased came to the house of Mohammed Lal Khan (PW-6) and Mohammed Lal Khan (PW-6) asked Niyaj Ahmed Khan (PW-15) for making available a bike on installments on the assurance that he would repay the finance so that he could give the bike to the appellants. They further deposed that on 14-05-2006, they went to the house of the appellants. Thereafter, they went to Sector 9 Hospital, Bhilai. The dead body of the deceased was kept in merchury. 22. Deceased Rehana Begum died due to hanging within 2 years of her marriage with appellant Samsuddin. It is also established that soon before her death, she was subjected to cruelty or harassment by the appellants in connection with demand of dowry, i.e., television, sofa and vehicle. All the facts and circumstances, on being put together, clearly attract the provision under Section 113B of the Evidence Act and the burden lay upon the appellants to prove their defence. 23. All the facts and circumstances, on being put together, clearly attract the provision under Section 113B of the Evidence Act and the burden lay upon the appellants to prove their defence. 23. Looking to the facts and circumstances of the case and the evidence available on record, offence under Sections 304B and 498A IPC are proved against the appellants and the learned trial Court has rightly convicted the appellants under Sections 304B and 498A IPC. 24. So far as sentence is concerned, learned counsel for the appellants submitted that the appellants have been sentenced to undergo rigorous imprisonment for 10 years for the offence under Section 304B IPC. Minimum sentence of seven years has been prescribed thereunder and, therefore, he prayed for imposing minimum prescribed sentence of seven years to the appellants. 25. For the offence under Section 304B IPC, minimum sentence of 7 years is prescribed. Looking to the facts and circumstances of the case, I feel that the sentence of 10 years awarded to the appellants is somewhat excessive. Ends of justice would be met if the appellants are awarded minimum sentence of 7 years. 26. In the result, the appeal is partly allowed. The conviction awarded to the appellants under Sections 304B and 498A IPC is upheld. The sentence awarded to the appellants for the offence under Section 498A IPC is also upheld. So far as the jail sentence awarded to the appellants for the offence under Section 304B IPC is concerned, it is reduced from 10 years to 7 years’ rigorous imprisonment. The appellants are entitled to set off under Section 428 Cr.P.C. Appeal Partly Allowed.