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2015 DIGILAW 195 (GAU)

Abul Hussain v. State of Assam

2015-02-18

BIPLAB KUMAR SHARMA

body2015
Biplab Kumar Sharma, J. 1. This appeal is directed against the judgment dated 10.03.2006 of the learned Additional Sessions Judge, Nagaon, Assam in Sessions Case No. 51/2004, by which the accused/appellant has been convicted u/s. 304(B) IPC with the sentence of 07(seven) years rigorous imprisonment with fine of Rs. 2000/- (rupees two thousand) and in default, to undergo further rigorous imprisonment for 04(four) months. 2. I have heard Mr. A. Ahmed, learned counsel for the accused/appellant and have also heard Mr. D. Das, learned Additional Public Prosecutor, Assam. I have also perused the entire materials on record. 3. The prosecution story in brief is that the daughter of the informant (PW-1) was given on marriage to the accused/appellant Abul Hussain about 03(three) months back of lodging the FIR, which was lodged on 12.04.2003. Soon after the marriage, he started torturing her both physically and mentally with the demand of dowry and eventually she was murdered by the accused persons. Although the FIR named 04(four) accused persons namely Ahmed Ali (father of the accused/appellant), Iman Ali (brother-in-law of the accused/appellant), Nur Hussain (brother of the accused/appellant), but, Ayesha Khatun (sister of the accused/appellant) was also sent for trial. 4. On receipt of the FIR, Dhing Police Station case No. 36/2003 u/s. 304(B) IPC was registered. On completion of the investigation, charge sheet was submitted against the accused persons u/s. 304(B)/34 IPC. Charge there under having been framed and the accused persons having denied the same with the plea of being not guilty, trial commenced. 5. During trial, prosecution examined 07(seven) witnesses and the defence examined none. However, they were examined u/s.313 Cr.P.C. in respect of the circumstances appearing against them. 6. PW-1 is the father of the deceased, who in his deposition stated that he was reported by the deceased that the accused persons had demanded Rs. 20,000/- (rupees twenty thousand) and other articles. According to him, his daughter came to him on 06.04.2003 and left for her matrimonial home on 10.04.2003 and on the following day i.e. on 11.04.2003, he could come to know about the death of his daughter. So in the following day i.e. on 12.04.2003, he went to the house of the accused persons and saw the dead body of his daughter lying on the ground on a mat. Thereafter, he lodged the FIR (Ext.1). So in the following day i.e. on 12.04.2003, he went to the house of the accused persons and saw the dead body of his daughter lying on the ground on a mat. Thereafter, he lodged the FIR (Ext.1). During cross examination, he stated that he found the dead body in the house of the accused/appellant. He admitted that his daughter was living with the accused/appellant separately from the house of the other accused persons. He also admitted that in the FIR, he did not mention about the demand of Rs. 20,000/- (rupees twenty thousand) by the accused/appellant as dowry. 7. PW-2 is the cousin brother of the informant, who in his deposition stated that on the day of occurrence at about 10 p.m., he heard hue and cry in the house of PW-1. So he went there and came to know about the death of the victim. 8. PW-3 is an independent witness, who in his deposition stated that he was informed by one Mr. Nur Hussain, son of Ahmed Ali about the death of the deceased. According to him, she died taking poison. 9. PW-4 is another independent witness namely Sri Naren Saikia, who in his deposition stated that after getting information, he went to the house of Abul Hussain and saw the dead body of the victim. On enquiry, nobody could inform him about the cause of death of the deceased. During cross examination he stated that accused/appellant along with the deceased was living separately from his parental house. 10. PW-5 is the witness of inquest, who after getting the information about the death of the deceased, went to the house of the accused/appellant and saw the dead body. 11. The most important witness is the PW-6 i.e. the doctor, who conducted the postmortem examination on the dead body of the deceased and found the following:-- "Eyes and mouth are closed. Rigor mortis is absent. No any wound is found over the body. Stomach contents undigested food materials with offensive smell. Viscera are preserved for forensic examination. History of alleged poisoning is present." PW-6 proved his report Ext.2. The defence did not cross examine him. 12. PW-7 is the Investigating Officer, who in his deposition generally stated about the investigation that was carried out. 13. 14. Stomach contents undigested food materials with offensive smell. Viscera are preserved for forensic examination. History of alleged poisoning is present." PW-6 proved his report Ext.2. The defence did not cross examine him. 12. PW-7 is the Investigating Officer, who in his deposition generally stated about the investigation that was carried out. 13. 14. It will be pertinent to mention here that as per the Ext.4 Forensic Laboratory report, the sample that was sent for chemical examination, gave negative test for common poison. In this connection, the learned counsel for the accused/appellant has placed reliance on the decision of the Apex Court reported in : (1992) 3 SCC 547 [Bhupendra Nath Prasad v. State of Bihar], in which the Apex Court observed that when the cause of death was not conclusively established, the accused/appellant involved therein was entitled to acquittal. 15. Based on the aforesaid evidence, it is the finding of the learned trial Court that there being evidence of dowry demand of Rs. 20,000/-, presumption can be drawn of causing her death by the accused/appellant only. While acquitting the other accused persons, the learned trial Court held that the evidence having disclosed that there was demand of dowry and for payment of Rs. 20,000/- from the accused/appellant as stated by PW-1, coupled with the fact that the victim visited her parental house on 06.04.2003 and immediately after return on 10.04.2003, died on 11.04.2003, the prosecution, was able to prove the case of dowry death against the accused/appellant. 16. Mr. A. Ahmed, learned counsel for the accused/appellant referring to the aforesaid evidence, submits that there being no evidence at all to convict the accused/appellant u/s. 304(B) IPC, the impugned judgment of conviction is not sustainable in law. Mr. D. Das, learned Additional Public Prosecutor, however submits that the PW-1 having categorically stated about the dowry demand, the learned trial Court has not committed any error of fact and/or law in convicting the accused/appellant. 17. I have carefully considered the submissions made by the learned counsels for the parties and have also gone through the entire evidence on record. As to what is the evidence adduced by the prosecution has been noted above. Apart from the fact that the Medical/FSL report has ruled out death of the victim of poisoning, there is also no evidence that the accused/appellant was instrumental in causing death of the deceased. As to what is the evidence adduced by the prosecution has been noted above. Apart from the fact that the Medical/FSL report has ruled out death of the victim of poisoning, there is also no evidence that the accused/appellant was instrumental in causing death of the deceased. Solely on the basis of the evidence of PW-1 that there was one time demand for Rs. 20,000/-, it will be totally unsafe to convict the accused/appellant on the charge of dowry death. It is in the evidence of PW-1 (cross examination) that he did not mention about any dowry demand of Rs. 20,000/- in the FIR. It is also in the evidence that when his statement was recorded u/s. 161 Cr.P.C., then also he did not disclose anything about such demand. When he was cross examined by the defence, he categorically stated that the accused/appellant had never gone to him with any dowry demand. Other witnesses have not even obliquely stated anything adverse against the accused/appellant so as to charge him u/s.304(B) IPC. 18. Above being the situation, I have no hesitation to interfere with the impugned judgment of conviction and accordingly it is set aside. 19. After serving the sentence for about 15(fifteen) months, the accused/appellant was granted bail on 10.08.2007. Bail bond shall stand discharged. 20. Registry shall send down the case record to the learned Court below along with a copy of this judgment and order.