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Gauhati High Court · body

2013 DIGILAW 29 (GAU)

Atikul Islam v. State of Tripura

2013-01-11

S.C.DAS

body2013
JUDGMENT S.C. Das, J. 1. The appellants, Atikul Islam, Kabil Miah and Rahela Bibi, were found guilty of the charge framed against them by learned Addl. Sessions Judge, South Tripura, Udaipur, under Section 304B of IPC in Sessions Trial No. 32 (ST/U) 2006 and by judgment and order dated 11.04.2007 sentenced them to suffer RI for eight years. Hence, this appeal under Section 374 of Cr.P.C. Heard learned counsel, Mr. D. Bhattacharjee for the appellants and learned Addl. P.P., Mr. P. Bhattacharjee for the State respondent. 2. Fact of the case may be narrated thus:-- 2.1 Marriage between the unfortunate young woman Hasena Bibi, aged about seventeen years(since deceased) and accused Atikul Islam was solemnized as per Muslim religious rites following love affairs between them. The parental house of Hasena Bibi and the house of accused Atikul Islam situated side by side with a common boundary at village-East Gokulpur under PS-R.K. Pur. Hasena Bibi committed suicide by hanging from a jackfruit tree near their house in the morning at about 9.00/11.00 a.m. After her death her maternal uncle, Taiyub Ali (PW 1) lodged an FIR in writing on 13.03.2005 at 1445 hrs. with the O/C R.K. Pur PS alleging that marriage between Hasena and Atikul was solemnized about eleven months ago and after a few months of marriage Atikul started assaulting Hasena for rupees four thousand and on the date of occurrence in the morning, Atikul, his brother Kabil Miah and their mother Rahela Bibi, while assaulted Hasena, she, being unable to bear upon the torture, committed suicide by hanging at about 9.00 a.m. 2.2 O/C R.K. Pur PS, accordingly, registered R.K. Pur PS Case No. 74/2005 under Sections 498A/ 306 read with Section 34 of IPC and an investigation was taken up. Initially, investigation was done by woman Sub-Inspector Smt. M.M. Choudhury(PW 13) and on her prayer, Section 304B was added and, thereafter, investigation was done by PW 14, Sub-Divisional Police Officer(SDPO), Sri Pinaki Samanta. Charge-sheet was filed under Sections 498A and 306 read with Section 34 of IPC against accused Atikul Islam, husband of the deceased, Kabil Miah, brother-in-law of the deceased and Rahela Bibi, mother-in-law of the deceased. 2.3 On commitment of the case to the Court of Sessions, learned Addl. Charge-sheet was filed under Sections 498A and 306 read with Section 34 of IPC against accused Atikul Islam, husband of the deceased, Kabil Miah, brother-in-law of the deceased and Rahela Bibi, mother-in-law of the deceased. 2.3 On commitment of the case to the Court of Sessions, learned Addl. Sessions Judge, on 10.07.2006 framed charge against the accused persons for commission of offence punishable under Section 304B of IPC, to which they pleaded not guilty and claimed to be tried. 2.4 Prosecution, in course of trial, examined fourteen witnesses, namely: PW 1, Taiyub Ali, PW 2, Monora Bibi, PW 3, Jakir Hossain, PW 4, Kulsum Bibi, PW 5, Bilkis Bibi, PW 6, Reshu Miah, PW 7, Kashem Ali, PW 8, Sahed Miah, PW 9, Ramendra Mandal, PW 10, Bimal Ch. Debnath, PW 11, Debashish Paul, PW 12, Dr. Sumana Ghosh, PW 13, Mafru Mog Choudhury, PW 14, Pinaki Samanta. 2.5 Out of the aforesaid witnesses, PW 1 is the maternal uncle of the deceased and is the maker of the FIR. PWs 2 and 6 are the parents of the deceased and PWs 3 and 7 are the brothers of the deceased. PWs 4, 5 and 8 are all neighbours of the deceased and the accused and out of them PW 4 was declared hostile by the prosecution. PW 9 is a police constable and a formal witness, who guarded the dead body at the time of post-mortem examination. PW 10 is the scribe of the FIR. PWs 11 and 12 are the medical officers, who conducted post-mortem examination over the dead body of the deceased. PWs 13 and 14 are the IOS of the case. 2.6 Prosecution case is that at the time of marriage, the groom party demanded rupees ten thousand, out of which rupees six thousand was paid and the rest, rupees four thousand was left and was due to be paid by the parents of the deceased. In the marriage, wooden furniture and other articles were also given. After marriage, for few months they were peaceful but, thereafter, accused persons started physical assault and torture on the deceased, since the rest amount of rupees four thousand was not paid to them. On the date of occurrence, i.e. on 13.03.2005, in the morning, she was physically assaulted by the accused persons and, thereafter, she committed suicide by hanging from a jackfruit tree near their house. On the date of occurrence, i.e. on 13.03.2005, in the morning, she was physically assaulted by the accused persons and, thereafter, she committed suicide by hanging from a jackfruit tree near their house. 2.7 Defence cross-examined the prosecution witnesses. After closure of the prosecution evidence, accused persons were examined under Section 313 of Cr.P.C. and, on their turn of adducing defence evidence, they examined three witnesses, namely DW 1, Mothaleb Miah, DW 2, Kajali Bibi and DW 3, Rekha Bibi of the same neighbourhood and out of them, DW 1 is a charge-sheet listed witness of the prosecution and DW 3 is the paternal aunt of the deceased. 2.8 Defence case is that marriage between deceased Hasena and accused Atikul was solemnized following love affairs. Parents of the deceased initially did not agree to the marriage but, since there was love affair between them, at the instance of the neighbours and relatives, marriage was, ultimately, solemnized but parents of the deceased were not happy to such marriage, for which they used to rebuke the deceased and would look down her. There was no demand made for any form of dowry at the time of marriage and the relationship between Atikul and deceased Hasena was sweet. There was no occasion of any torture or assault on the deceased by the accused persons. It is also the case of the defence that the paternal uncle of the deceased and her cousin sisters committed suicide and that, mother and brother of the deceased also tried to commit suicide. 2.9 Considering the evidence and the materials on record, learned Addl. Sessions Judge, however, found the accused persons guilty of the charge framed against them and sentenced them as aforesaid, hence this appeal. 3. Section 498A and Section 304B of IPC have been incorporated in the Indian Penal Code with a view to stop all sorts of cruelty towards a married woman and also to contain dowry death, i.e. death of a woman, otherwise than under normal circumstances within seven years of marriage where it is shown that soon before her death she was subjected to cruelty and harassment by her husband or any relative of her husband for and in connection with any demand of dowry. With a view to strictly apply the penal provision of Section 304B of IPC, relevant provision was also added in the Evidence Act by inserting Section 113B. With a view to strictly apply the penal provision of Section 304B of IPC, relevant provision was also added in the Evidence Act by inserting Section 113B. For ready reference, let us reproduce here Sections 498A, 304B of IPC and Section 113B of the Evidence Act, which read thus: 498A. 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. 1. Chapter XXA inserted by Act 46 of 1983, S. 2. Explanation.--For the purpose of this section "cruelty" mean-- (a) any wilful 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. [304B. 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 this 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.] 113B. Explanation.--For the purpose of this 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.] 113B. Presumption as to dowry death.-- When the question is whether a person has committed the dowry death of a women 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 the dowry death. Explanation.--For the purposes of this section, "dowry death" shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860). 4. Certain facts are not disputed rather admitted by both sides which are-- (i) Parental house of Hasena Bibi and the house of the accused persons situated adjacent to each other with a common boundary at village-East Gokulpur under R.K. Pur PS. (ii) Love Affairs developed between Hasena Bibi and accused Atikul Islam. (iii) Parents of Hasena were not agreeable to the marriage between Hasena and Atikul initially, but later on, at the instance of the neighbours and relatives, marriage was solemnized as per Muslim religious rites and Hasena started living in her husband's house. (iv) On 13.03.2005, at about 9.00/11.00 a.m., Hasena committed suicide by hanging from a jackfruit tree near their house and that was within one year of their marriage. The evidence of PWs 12 and 13 as well as Exbt. 5, the post-mortem report, makes it clear that Hasena died because of hanging, which is suicidal in nature. It is, therefore, evident that Hasena died, otherwise than under normal circumstances and within seven years of her marriage. 5. The issue, which remains for decision, is whether she was subjected to cruelty on demand of dowry. Learned trial Judge, based on the evidence on record, has held that she was subjected to cruelty on demand of rupees four thousand by the accused persons and, accordingly, held them guilty. 6. Learned counsel, Mr. D. Bhattacharjee, has submitted that the accused persons and the parental family of the deceased were residing side by side. Learned trial Judge, based on the evidence on record, has held that she was subjected to cruelty on demand of rupees four thousand by the accused persons and, accordingly, held them guilty. 6. Learned counsel, Mr. D. Bhattacharjee, has submitted that the accused persons and the parental family of the deceased were residing side by side. FIR was lodged by the maternal uncle of the deceased (PW 1), who is also a resident of nearby house. No allegation has been made in the FIR that there was dowry demand at the time of marriage. The story of dowry demand at the time of marriage of an amount of rupees ten thousand and payment of rupees six thousand at the time of marriage as well as non-payment of rupees four thousand with an assurance to pay the same later on, all are subsequent development, which has been revealed in the deposition of the witnesses and the learned trial Judge failed to consider that aspect of the evidence on record. He has also submitted that PWs 2 and 6 are the parents of the deceased. PWs 3 and 7 are the brothers of the deceased. PW 1 is the maternal uncle of the deceased and PWs 4, 5 and 8 are the neighbours of the deceased and accused persons and out of them PW 4 was declared hostile by the prosecution, who supported the defence case. He has also submitted that all the defence witnesses are their close neighbours and out of them DW 1 is a charge-sheet listed witness and DW 3 is the paternal aunt of the deceased and they are from the same neighbourhood. Learned counsel, Mr. Bhattacharjee has further submitted that PW 8 is a chance witness and his house is far away from the house of the accused as well as from the house of the parents of the deceased and, therefore, his evidence should not have been taken into consideration. PW 7 is not an eyewitness of the alleged assault. Under such circumstances, the finding of the learned trial Judge regarding the alleged demand of dowry and assault or cruelty on the deceased is based on no cogent evidence and, hence, the judgment is liable to be set aside. 7. On the other hand, appearing on behalf of the State respondent, learned Addl. PP, Mr. Under such circumstances, the finding of the learned trial Judge regarding the alleged demand of dowry and assault or cruelty on the deceased is based on no cogent evidence and, hence, the judgment is liable to be set aside. 7. On the other hand, appearing on behalf of the State respondent, learned Addl. PP, Mr. P. Bhattacharjee, has submitted that regarding the assault on the date of occurrence, i.e. on 13.03.2005, in the morning, the statements of parents have been found contradicted with their earlier statements but the statements of PWs 7 and 8 remained unshaken and, therefore, based on their statements, the finding of cruelty by the accused persons may sustain. He has also contended that while there was evidence of demand of dowry and exercise of cruelty for non-fulfillment of such demand, a presumption should be drawn as per Section 113B of the Evidence Act and there is no escape for the accused persons but to suffer the sentence as inflicted by the trial Court. 8. Let us now travel through the evidence on record. The FIR is proved as Exbt. 3. It was lodged after a few hours of the occurrence by the maternal uncle of the deceased, residing in the same neighbourhood. He simply alleged that since after few months of marriage, Atikul started assault on Hasena for rupees four thousand and, in the morning of the date of occurrence, her husband, brother-in-law and mother-in-law, assaulted her. No allegation was made in the FIR that there was any demand of rupees ten thousand as dowry at the time of marriage, out of which rupees six thousand was paid and rupees four thousand remained due to be paid and for non-payment of that four thousand rupees, Hasena was subjected to cruelty. 8.1 According to law, an FIR is an information first in point of time about a cognizable offence. It need not be in detail reflecting therein the fact in details with all items of allegations. So, based on the FIR no inference can be drawn about the veracity of the case. 8.2 PW 1, the maker of the FIR, in his deposition stated that at the time of marriage a cash amount of rupees six thousand was given and after four/five months of marriage Hasena was subjected to cruelty by the accused persons for not giving the rest amount of rupees four thousand. 8.2 PW 1, the maker of the FIR, in his deposition stated that at the time of marriage a cash amount of rupees six thousand was given and after four/five months of marriage Hasena was subjected to cruelty by the accused persons for not giving the rest amount of rupees four thousand. This specific statement is contradicted with the FIR as there was no such statement made in the FIR by the witness that rupees six thousand and other articles were given at the time of marriage as bridal gift. Regarding the assault on the date of occurrence he stated in the FIR, but the statement itself shows that he did not see such occurrence and from whom he learnt about it, nothing stated in the FIR. In his deposition also, he stated in the same tune that on the fateful day in the morning there had been a quarrel in the house of the accused and the accused persons assaulted the deceased for her failure to bring rupees four thousand, which was due to be paid to them from her parental house. Such statement was contradicted with his earlier statement recorded by IO and, so, no implicit reliance can be placed on the statement of this witness regarding the allegation, i.e. the demand of rupees ten thousand and payment of rupees six thousand thereof at the time of marriage and non-payment of the remaining amount thereof as well as the physical assaultion the deceased in the morning of the date of occurrence. 8.3 PWs 2 and 6, the parents of the deceased, also made similar statements that at the time of marriage rupees ten thousand was demanded and out of the demanded amount, rupees six thousand was paid and remaining rupees four thousand was due to be paid for which Hasena was subjected to cruelty since the amount could not be paid and that on the date of occurrence in the morning Hasena was assaulted by the accused persons. Both these incriminating facts as stated by PWs 2 and 6 were not stated by them in their earlier statements, recorded by IO. In their cross-examination they were contradicted with their earlier statements. Both these incriminating facts as stated by PWs 2 and 6 were not stated by them in their earlier statements, recorded by IO. In their cross-examination they were contradicted with their earlier statements. Therefore, regarding the demand of dowry and regarding physical assault on the date of occurrence in the morning, seems to be a subsequent development and, therefore, the evidence of PWs 2 and 6 cannot be absolutely relied on, without further cogent evidence on those allegations. 8.4 PW 3, a younger brother of the deceased, first found the dead body hanging and on his cries, the neighbours and the accused Atikul rushed there and Atikul brought down the dead body. He stated nothing about assault in the morning on the date of occurrence or that of demand of any dowry. 8.5 PW 7, the other brother, however, stated about the allegation of torture for non-payment of rupees four thousand but he did not state anything that any demand of rupees ten thousand was made at the time of marriage and rupees six thousand was paid at that time. He has further stated that on the date of occurrence in the morning the deceased was assaulted by the accused persons and he heard cries of his sister. He nowhere stated that he had seen his sister, being assaulted by the accused persons in the morning of the date of occurrence. 8.6 PW. 8 stated that he was passing through the road in front of the house of the accused persons and at that time he found Atikul Islam and his mother, rebuking Hasena and accused Kabil Miah, kicking her. He nowhere stated that all the accused persons were assaulting Hasena. However, as I find, PW 8 is not a close resident of the accused persons and in his cross-examination he stated that his house was about two kanies away from the house of the accused persons. Defence suggested that his house was about one kilometer away from the house of the accused persons. Defence also suggested that he had good relation with the father of the deceased and on his request he made false statement. The submission of learned counsel, Mr. D. Bhattacharjee that PW 8 is a chance witness, in the facts and circumstances of the case cannot be thrown overboard. Defence also suggested that he had good relation with the father of the deceased and on his request he made false statement. The submission of learned counsel, Mr. D. Bhattacharjee that PW 8 is a chance witness, in the facts and circumstances of the case cannot be thrown overboard. While the statements of the parents found to have contradicted with their previous statements regarding the incident of assault on the date of occurrence in the morning, from the only statement of PW 8 it is found that he had seen the occurrence but since he is not corroborated by any other cogent evidence it is very difficult to rely on the sole testimony of PW 8 regarding the alleged assault on the date of occurrence in the morning immediately before the commission of suicide by the deceased Hasena. 9. We find altogether a different story in the deposition of DWs. The evidence of DWs also should be read with equal importance with that of the evidence of the prosecution witnesses. 9.1 Here in this case, DW 1 is a charge-sheet listed witness of the prosecution and he made a categorical statement that he is a close neighbour of accused persons and the parents of deceased Hasena and he stated about the marriage following love affairs between Atikul and Hasena. He also stated that marital life of Hasena was happy and peaceful. There was no demand of any dowry from the side of the groom party at the time of marriage. Hasena went to her parental house at the relevant time i.e. 7/8 days before her death and on the date of occurrence she was residing in her parental house. Relationship of Hasena with her parents was strained as her parents could not accept her marriage with Atikul. His evidence has not been shaken in cross-examination. 9.2 DW 2 is another close neighbour and she has also stated in the same tune that there was no demand of dowry at the time of marriage and the relationships of Hasena with her husband and other members of the family were cordial and that Hasena was living in her parental house since 5/6 days prior to her death. She has also stated that Hasena was not subjected to cruelty in the matrimonial home. 9.3 DW 3 is a paternal aunt of the deceased. She has also stated that Hasena was not subjected to cruelty in the matrimonial home. 9.3 DW 3 is a paternal aunt of the deceased. She also stated that her house and the house of the accused persons are situated side by side and relationships of Hasena with her husband and other members of her matrimonial home were cordial. She stated that Hasena was in her parental house for about 7/8 days prior to her death to attend some social functions. She stated that her husband committed suicide by hanging. Kalpana Begum and another, whose name she could not remember, both cousin sister of Hasena, also committed suicide. About three years ago, Hasena's mother also at tempted to commit suicide by taking poison. About six months ago, Hasena's brother Kasem Miah also attempted to commit suicide. Marriage between Hasena and Atikul Islam was an arranged marriage. Hasena's parents and brothers could not accept the marriage. She was, therefore, subjected, to harassment by her paternal family. Her statement also has not been shaken in cross-examination. 10. In view of the above factual situation it is very difficult to arrive at a reasonable conclusion that Hasena was subjected to cruelty on demand of dowry of rupees four thousand and that was a part of total demand made at the time of marriage. The allegation of alleged assault on the date of occurrence in the morning is also shrouded with suspicious as to whether any such incident of assault at all occurred or not in the circumstances of the evidence on record. Learned trial Judge, as I find, simply considered the evidence of the prosecution witnesses examined-in-chief but failed to consider their statements in cross- examination, which was found contradictory to their earlier statements, recorded by the IO in course of investigation. Such partial reading of deposition of witnesses has led the trial Court in arriving at a finding of guilt of the accused persons, which cannot be said to be beyond reasonable doubt. 11. The fact that the deceased was subjected to cruelty on demand of dowry as defined in Section 498A of IPC is to be proved by the prosecution beyond reasonable doubt. 11. The fact that the deceased was subjected to cruelty on demand of dowry as defined in Section 498A of IPC is to be proved by the prosecution beyond reasonable doubt. The initial burden of proof of the fact that the deceased was subjected to cruelty on demand of dowry is on the prosecution and when such burden is discharged by the prosecution, a presumption under Section 113B of the Evidence Act shall be drawn regarding dowry death. If the prosecution fails to prove the exercise of cruelty on demand of dowry beyond reasonable doubt, Section 113B will be of no aid to the prosecution case. 12. It is most unfortunate that the life of the young woman has ended because of her committing suicide by hanging but the husband and other members of the matrimonial home cannot be booked simply for her such unnatural death unless it is proved with cogent evidence that she was subjected to cruelty on demand of dowry. The prosecution evidence, as discussed above, is found to be deficient to hold that the deceased was subjected to cruelty on demand of dowry and the finding to that effect by the learned Addl. Sessions Judge is found to be not on proper appreciation of evidence on record and, therefore, the judgment and order of conviction and sentence, passed by the learned Addl. Sessions Judge, is liable to be interfered. 13. In view of the discussions made above, the judgment and order of conviction and sentence, dated 11.04.2007, passed by learned Addl. Sessions Judge, South Tripura, Udaipur, in case No. ST. 32 (ST/U) 2006, is set aside. The convict-appellants, if are in custody, be set at liberty at once. Send back the LC records along with a copy of this judgment.