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2013 DIGILAW 703 (GAU)

Md. Mijanur Rahman v. State of Assam

2013-09-25

I.A.ANSARI

body2013
JUDGMENT I.A. Ansari, J. 1. By the judgment and order, dated 25-04-2012, passed, in Sessions Case No. 15(D)/2007, by the learned Additional Sessions Judge, FTC, Bongaigaon, the accused-appellant stands convicted under Section 304B IPC and sentenced to undergo rigorous imprisonment for ten years. The case of the prosecution, as unfolded at the trial, may, in brief, be described as under: (i) Deceased Farhana Rafique was wife of accused, Mijanur Rahman, their marriage having been solemnized, on 09-02-2002, at the residence of her brother, Jiaur Rafique (PW 1). After their marriage, the couple resided together at the house of the accused, who, being a doctor, was posted to different places, such as, Chalantapara, Goalpara and Bilasipara. Farhana Rafique (since deceased) accompanied the accused to the latter's different places of posting. Thereafter, the accused went to Dibrugarh for higher education and, during the said period, the accused was accompanied by his wife, who used to live with the accused. After his marriage, the accused raised demand for one Maruti car and also a sum of Rs.2,00,000/-, in cash. Because of the inability of his wife to meet the demands of the accused, the accused used to torture her. When the accused took his wife to her mother's house, she reported the incident to her mother and sister. (ii) In the month of November, 2005, the wife of the accused came to her husband's house at Bilasipara and started living there. On the night of 26-12-2005, while the accused and the said deceased used to reside, as husband and wife, in their marital house at Bilasipara, the wife of the accused died, because of asphyxia as a result of being strangulated. The accused also suffered cut injuries on his neck at two different places. (iii) As the accused and his wife did not get up on 27-12-2005, PW 17, brother of the accused, who also used to live with his family, sent his servant to the house of the accused and though the servant called the accused and his wife, there was no response from inside their house. Thereafter, PW 17 himself went to the house of the accused and heard someone groaning inside the house. Being alarmed, PW 17 raised hullah and their neighbours came. Thereafter, PW 17 himself went to the house of the accused and heard someone groaning inside the house. Being alarmed, PW 17 raised hullah and their neighbours came. PW 17, then, accompanied by his neighbours, entered into the house of the accused by opening the door of the house of the accused, which had not been kept closed from inside, and found, to his horror, the wife of the accused lying dead and the accused lying in seriously injured condition inside their house. (iv) PW 1, elder brother of the deceased, on being informed about the occurrence, lodged an Ejahar, in writing, on 27-12-2005, at Dhaligaon Police Station. Treating the said Ejahar as First Information Report (in short, 'FIR'), Dhaligaon Police Station Case No. 83 of 2005, under Section 302 IPC, was registered against the present accused-appellant. (v) During the course of investigation, police held inquest over the said dead body, which was also subjected to post mortem examination. In highly critical stage, the accused was carried to hospital, where his statement was recorded as a dying declaration. The accused, however, survived and, on completion of investigation, a charge-sheet was laid, under Section 304B IPC, against the accused. 2. At the trial, a charge, under Section 304(B) IPC, was framed against the accused-appellant. To the charge, so framed, the accused pleaded not guilty. 3. In support of their case, prosecution examined altogether 24 witnesses. The accused was, then, examined under Section 313 Cr.P.C. and, in his examination aforementioned, the accused denied that he had committed the offence, which was alleged to have been committed by him, the case of the defence being that of denial. No evidence was adduced by the defence. 4. Having, however, found the accused guilty of the offence, which he stood charged with, learned trial Court convicted him accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence passed against him, the accused, as a convicted person, has preferred this appeal. 5. I have heard Mr. Y.S. Mannan, learned counsel for the accused-appellant, and Mr. K.A. Mazumdar, learned Additional Public Prosecutor, Assam. 6. While considering the present appeal, it is apposite to take note of the evidence of PW 20 (Dr. Debasish Goswami), who had, admittedly, conducted, on 28-12-2005, at RNB Civil Hospital, Kokrajhar, post mortem examination on the dead body of Farhana. Y.S. Mannan, learned counsel for the accused-appellant, and Mr. K.A. Mazumdar, learned Additional Public Prosecutor, Assam. 6. While considering the present appeal, it is apposite to take note of the evidence of PW 20 (Dr. Debasish Goswami), who had, admittedly, conducted, on 28-12-2005, at RNB Civil Hospital, Kokrajhar, post mortem examination on the dead body of Farhana. The findings of PW 20 are as under: Condition of subject stout emaciated, decomposed, etc. Well built slightly swollen, wearing simple cotton night dress with red full sweater and a blue colour chaddar, eyes, mouth closed, teething is found. Body is in the early stage of decomposition. Wound - position and character: Bloodstained left nostrils with heavy amount of blood clots are seen on the left side of body over the chaddar, she was wearing. Bruise - position, size and nature: A pin prick is seen in the left hand of the upper arm. Abdomen was congested. Thorax: Petechial hemorrhage is found in the subcutanontissu of trachea and Hyoid Bone and congested. Heart: Heart chamber filled with liquid blood. Vessels: Congested. Diseases or Deformity: Stillness. Cranium and Spinal Canal: Congested. Liver: Liver in the early stage of decomposition. Organs of Generation, External and Internal: Nothing abnormality was detected. Uterus - no sign of pregnancy. 7. The doctor (PW 20) has opined that the cause of death was asphyxia as a result of manual strangulation, which was ante mortem and homicidal in nature, Ext. 9 being the post mortem report. 8. Nothing could be elicited from the cross-examination of the doctor (PW 20) to show that his findings and/or his opinion, with regard to the nature of the injuries found on the said dead body or with regard to the cause of death of the said deceased, were incorrect or untrue. In fact, the material aspects of the evidence of PW 20 remained wholly unchallenged by the defence. This apart, this Court, too, does not notice anything inherently improbable or incorrect in the medical evidence on record. 9. Situated thus, there is no difficulty in concluding, and I do conclude, that the said deceased died, because of asphyxia following manual strangulation. 10. Bearing in mind the cause of death of the wife of the accused, let us, now, turn to the injuries, which had been found on the person of the accused-appellant. 9. Situated thus, there is no difficulty in concluding, and I do conclude, that the said deceased died, because of asphyxia following manual strangulation. 10. Bearing in mind the cause of death of the wife of the accused, let us, now, turn to the injuries, which had been found on the person of the accused-appellant. It is, in this regard, noteworthy that the accused-appellant was taken to Lower Assam Hospital, Bongaigaon, on 27-12-2005, in severely injured condition and was treated there. PW 3 is the doctor, who had examined and treated the accused-appellant at the said hospital. This doctor's evidence, as regard the injuries, found on the person of the accused-appellant, are as under: Type of wound: (i) Deep linear cut wound, part over which injury inflected - A linear cut would on the right side of the neck in the submandibular region about 8 cm. in length extending from the centre of the neck to the medial border of the sternomastoid muscle diving the submandibular gland, platysma, external jugular vein and part of sternomastoid muscle. The wound was gradually deepening from the medial border and became shallow and tailed off in the lateral border. There was severe bleeding from the injury side. (ii) A linear cut wound on the left side of the neck in the submandibular region about 7 cm. in length extending from the medical border of the left sternomastoid muscle to about 3 cm. away from the middle of the neck with division of superficial vessels and severe bleeding from the cut vessels. The wound was gradually deepening from the lateral border and became shallow and tailed off in the medial border. Two numbers of superficial linear hesitation cut injuries seen just above the right side deep cut wound 11. PW 3 has clarified, in his evidence, that the condition of the patient (i.e., condition of the accused) was very serious and it was necessary to record his dying declaration and, accordingly, Dr. Bordoloi recorded the dying declaration in the presence of PW 5, PW 15 and PW 16, Ext. 5 being the dying declaration. However, since the accused has survived, the dying declaration, as this Court has already pointed out above, has ceased to be a dying declaration. 12. Bordoloi recorded the dying declaration in the presence of PW 5, PW 15 and PW 16, Ext. 5 being the dying declaration. However, since the accused has survived, the dying declaration, as this Court has already pointed out above, has ceased to be a dying declaration. 12. Bearing in mind the medical evidence on record, let me, now, turn to the evidence of PW 17, brother of the accused, whose evidence is that on the day of the occurrence, noticing that till 8.00 a.m., the accused and his wife were still not awake, he sent his servant to inquire, but the servant failed to wake up the accused and his wife and, thereafter, he (PW 17) himself went to the house of the accused and, on hearing some groaning sound inside the house of the accused, he (PW 17) raised hullah, people from neighbourhood assembled, they found the door of the house of the accused open from inside and when they entered into the house of the accused, they found the wife of the accused lying dead and the accused was lying seriously injured in a pool of blood. It is in the evidence of PW 17 that both, the accused and his wife, were taken to the hospital, where the wife of the accused was declared dead. 13. In his cross-examination, PW 17 has deposed that incidents of dacoity had taken place in their area frequently. 14. Be that as it may, close on the heels of the evidence of PW 17, PW 18 has deposed that the accused and his wife were sent to hospital, where the wife of the accused was declared dead. 15. From a close scrutiny of the evidence of PW 17 and 18, it cannot be confidently held that it was the accused-appellant, who had caused the death of his wife. It may be pointed out, in this regard, that though it has been the case of the prosecution that the accused had caused the death of his wife and, then, attempted to commit suicide, there is no evidence, tangible or otherwise, supporting this hypothesis of the prosecution; more so, when this Court finds that the accused sustained very serious injuries and there is nothing on record to show that these injuries were self-inflicted. 16. 16. In fact, the evidence, given by PW 3 (doctor) shows that there were two linear cut wounds on the neck of the accused, one of the injuries being at the centre of the neck and the other one was on the left side of the neck. This apart, the undisputed evidence of PW 17, brother of the accused, has been that they found the door of the house of the accused open from inside meaning thereby that the door of the house of the accused was not found shut or closed from inside, when PW 17, accompanied by his neighbours, reached the house of the accused, opened the door of the house and witnessed the ghastly sight of the wife of the accused lying dead and the accused lying in seriously injured condition. 17. In the absence of any evidence on record showing that the door of the house of the accused-appellant was found shut or closed from inside, it is not only difficult, but impossible to hold, confidently and boldly, that the accused had killed his wife and, then, made an attempt to commit suicide. 18. Keeping in view the fact that there is nothing on record to show that the accused was the one, who had killed his wife, let me, now, turn to the evidence of the informant (PW 1). This witness's evidence is that when the accused went to Dibrugarh for higher education, his wife lived with the accused, the accused raised demand for a Maruti car and cash amount of Rs.2,00,000/- and on the failure, on the part of the wife of the accused, to meet the demand, she was subjected to torture by the accused and, thereafter, the accused took the victim to her parent's house, where the wife of the accused reported to her mother and sister as to how the accused had been ill-treating. 19. There is, however, nothing in the evidence of PW 1 to show that the said deceased had, at any point of time, reported to PW 1 that she had been subjected to cruelty by the accused by raising any demand for Maruti car or money. In fact, in his cross-examination, PW 1 has conceded that it was his mother (PW 2), who had reported to him (PW 1) about the demand of Maruti car and money, which the accused had allegedly raised. In fact, in his cross-examination, PW 1 has conceded that it was his mother (PW 2), who had reported to him (PW 1) about the demand of Maruti car and money, which the accused had allegedly raised. Conceded further, in his cross-examination, PW 1 that he has neither mentioned, in his Ejahar nor in his statement recorded by the police during investigation, that the accused had raised any demand for Maruti car or money. 20. No reliance can, therefore, be safely placed on the evidence of PW 1 that the accused had raised any demand for Maruti car or money. 21. Close on the heels of the evidence of PW 1, PW 2, mother of the deceased, has deposed that she had been reported by the deceased that the accused had tortured her by demanding Maruti car and money. Even PW 2 has agreed that she had not made any statement to the police with regard to the demand raised by the accused for money or car. 22. Thus, PW 2 had not made any statement, in the past, when the investigation was in progress, that her daughter had been subjected to cruelty for non-fulfillment of demand of Maruti car or money as has been allegedly PW 2 at the trial. 23. In the circumstances indicated above, it is wholly impossible to place implicit reliance on the evidence of PW 2 that any such demand for Maruti car or money, as alleged by PW 2, had taken place. 24. So far as PW 6 is concerned, her evidence is that two years after her marriage, the said deceased reported to her that according to her husband, the articles, gifted to her, at the time of her wedding, were of poor quality. The evidence, so given by PW 6, is not supported at all by the evidence of PW 1 and/or PW 2 inasmuch as neither PW 1 nor PW 2 has deposed that the accused had expressed, at any stage, his dissatisfaction with the quality of materials, which the said deceased had carried to her matrimonial house. 25. As the evidence of PW 6 ex facie suffers from exaggeration, it is well-nigh impossible to place readily any reliance on her evidence either. 26. 25. As the evidence of PW 6 ex facie suffers from exaggeration, it is well-nigh impossible to place readily any reliance on her evidence either. 26. Coming to the evidence of PW 7, I notice that this witness has deposed that, on 28.11.2005, he went to Dhaligaon Police Station and saw the dead body of the said deceased with a black mark on her neck and her tongue protruding out. PW 7 has also deposed that he came to know from his wife about the demand of car and money raised by the accused and that the accused used to torture his wife. 27. Suffice it to point out, while considering the evidence of PW 7, that his evidence, with regard to the demand of car and money, which the accused had allegedly raised, was reported to him by his wife. The assertion of PW is nothing but hearsay and must be kept excluded from the purview of this Court's consideration inasmuch as the wife of PW 7 has not deposed that the said she had ever reported to husband that the said deceased had told her that the accused used to torture her by raising demand for car or money. 28. PW 8 is the sister of the said deceased and her evidence is that the said deceased was subjected to torture by the accused for money and car. From her evidence also, it is not discernible if the said deceased had ever reported to PW 8 about her being subjected to torture by the accused for her inability to meet the demand of the accused regarding money and car. How PW 8 came to know about the demand being made by the accused for car and money remains wholly unanswered by the evidence on record. 29. As regards the evidence of PW 9, it is sufficient to point out that he is merely a witness, who had seen the dead body of the said deceased lying inside the house of the accused. To the same effect is the evidence of PW 10, PW 12, PW 13 and PW 14. 30. From the above discussion of the evidence on record, one cannot but conclude that there is no cogent, clear, definite and positive evidence establishing the fact that it was none but the accused-appellant, who had put his wife to death. 31. To the same effect is the evidence of PW 10, PW 12, PW 13 and PW 14. 30. From the above discussion of the evidence on record, one cannot but conclude that there is no cogent, clear, definite and positive evidence establishing the fact that it was none but the accused-appellant, who had put his wife to death. 31. In the light of the above state of evidence on record, let me, now, turn to Section 304B IPC and Section 113B of the Evidence Act. Section 304B IPC reads as under: 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. 32. Coupled with the above, Section 113B of the Evidence Act reads: Presumption 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, the court shall presume that such person had caused the dowry death. 33. While considering the question of dowry death, as provided in Section 304B IPC, it needs to be pointed out that the enactment of Dowry Prohibition Act, 1961, in its original form, was found inadequate, because experience showed that demand of dowry and the modes of its securing took different forms to achieve the result. This apart, the consequences of non-fulfillment of demand for dowry included death of the bride by suicide or otherwise. The experience, so gathered, led to the legislative measures of enactment of Section 304B IPC and consequential amendments, in the Evidence Act, in the form of Section 113B. 34. The peculiar feature of Section 304B IPC is the use of the expression death; rather than homicide. The experience, so gathered, led to the legislative measures of enactment of Section 304B IPC and consequential amendments, in the Evidence Act, in the form of Section 113B. 34. The peculiar feature of Section 304B IPC is the use of the expression death; rather than homicide. Hence, even if there was no evidence of homicidal death, a charge, under Section 304B IPC, could still be maintained if death, in a given case, was caused by burns or bodily injury or occurred otherwise than under normal circumstances. 35. What is, however, of great significance to note, while considering Section 304B IPC, is that cruelty or harassment may not be enough and that there must be proximate and inseverable connection between death, on the one hand, and acts of cruelty or harassment, on the other. 36. The expression, 'soon before her death', used in the substantive part of Section 304B I.P.C. and also appearing in Section 113B of the Evidence Act, conveys the idea of proximity. Naturally, no definite period could have been indicated to explain 'soon before her death'. 37. No wonder, therefore, that the expression, 'soon before her death', appearing in Section 304B IPC, has not been defined. The determination of the period, which can fall within the term 'soon before', is left to be determined by the courts depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression 'soon before' would, normally, imply that the interval must not be long between cruelty or harassment, on the one hand, and the death, in question, on the other. There must be existence of a proximate and live-link between the effect of cruelty or harassment based on dowry demand and the concerned death. If alleged incident of cruelty or harassment is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence. (See Kaliyaperumal v. State of Tamil Nadu ( AIR 2003 SC 3828 ). See also Yashoda v. State of Madhya Pradesh, (2004) 3 SCC 98 ). 38. If alleged incident of cruelty or harassment is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence. (See Kaliyaperumal v. State of Tamil Nadu ( AIR 2003 SC 3828 ). See also Yashoda v. State of Madhya Pradesh, (2004) 3 SCC 98 ). 38. A conjoint reading of Section 304B and Section 113B of the Evidence Act shows that where 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. At the same time, Section 113B of the Evidence Act provides that where there arises a question as to whether a person has committed the dowry death of a woman and it is shown that such person had subjected such woman to cruelty or harassment, soon before her death, for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. 39. One cannot, however, ignore the fact that merely because a woman dies within the prescribed period of 7 years, coupled with the fact that she had been subjected to cruelty soon before her death, would not make the person, who had subjected the woman to cruelty or harassment for, or in connection with, any demand for dowry, liable for conviction for an offence of dowry death unless a nexus between the demand for dowry and its consequential harassment or cruelty, on the one hand, and the unnatural death of the woman, on the other, is established. When an unnatural death is for reasons other than demand for dowry, such a death would not fall within the definition of dowry death. When an unnatural death is for reasons other than demand for dowry, such a death would not fall within the definition of dowry death. For illustration, if 'X' and 'Y' are husband and wife and it is proved that 'Y', as husband, had subjected his wife 'X' to cruelty soon before her death for, or in connection with, any demand of dowry, and that she died within 7 years of her marriage, in the circumstances other than normal, the husband 'Y' would not be liable for dowry death if it is proved that 'X' was killed by 'Z' and that too not at the instance of 'Y'. 40. Situated thus, it is clear that if the prosecution establishes that there were acts of cruelty or harassment on the woman, but her unnatural death was not connected to such cruelty or harassment, no conviction of the accused would be permissible. Thus, prosecution will have to rule out the possibility of a natural or accidental death to sustain the charge under Section 304B IPC. As observed by the Supreme Court, in Kaliyaperumal v. State of Tamil Nadu ( AIR 2003 SC 3828 ): 8. A conjoint reading of Section 113B of the Evidence Act and Section 304B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the 'death occurring otherwise than in normal circumstances'..... (Emphasis is added) 41. In the case at hand, too, there is nothing to show that it was the accused-appellant, who had caused the death of his wife. In fact, the possibility of the accused having been assaulted along with his wife cannot be ruled out, particularly, when there is no evidence on record to show that the weapon, which had allegedly been used by the accused for committing suicide, had been found near his injured body. In fact, the possibility of the accused having been assaulted along with his wife cannot be ruled out, particularly, when there is no evidence on record to show that the weapon, which had allegedly been used by the accused for committing suicide, had been found near his injured body. Strangely enough, the weapon, allegedly used for the purpose of attempting suicide by the accused was, according to the prosecution, a blade, which was found lying near the accused and though the said blade had been seized by police during investigation, the blade was not sent to Forensic Science Laboratory for serological test and, in such circumstances, there cannot be said to be any definite evidence on record that the blade, which was seized, had been the weapon for causing injury on the neck of the accused. 42. Because of what have been discussed and pointed out above, it could not have been held that the accused-appellant had been proved, beyond reasonable doubt, guilty of dowry death. At any rate, in the facts and attending circumstances of the present case, as discernible from the evidence on record, the accused-appellant ought to have been accorded, at least, benefit of doubt. 43. In the result and for the reasons discussed above, this appeal succeeds. The impugned conviction of the accused-appellant and the sentence, which has been passed against him by the judgment and order, under appeal, are hereby set aside. The accused-appellant is hereby held not guilty of the offence, which he has been convicted of. 44. As the accused-appellant is on bail, his bail bond is cancelled and his surety shall stand discharged. 45. With the above observations and directions, this appeal stands disposed of. Send back the LCR. Disposed off.