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2016 DIGILAW 297 (GAU)

Shajahan Ali v. State of Assam

2016-04-19

RUMI KUMARI PHUKAN

body2016
JUDGMENT AND ORDER : Rumi Kumari Phukan, J. This is a statutory appeal against the judgement and order dated 3.1.2007 passed by the learned Sessions Judge, Kamrup, Guwahati in Sessions Case No. 119(K)/2004 convicting the accused/appellant under Section 304(B) IPC and sentencing him to rigorous imprisonment for 7 years with a fine of Rs.3000/-, in default, rigorous imprisonment for another 6 months. 2. One Md. Rafiqul Islam lodged an FIR on 11.5.2002 before the O/C, Noonmati Police Station alleging inter alia that his sister Hasina Begum was married to Shajahan Ali about 3 years back and out of their wedlock a child was born aged about 2½ years. But his sister was subjected to torture by her husband Shajahan Ali who threatened to kill her and she had to come to paternal house at sometime but accused took her back. On 11.5.2002 at about 7:00 AM, the accused poured kerosene oil upon said Hasina and set her on fire. His sister was rescued by the neighbours and was admitted in hospital. Pursuant to the FIR, police registered a case being Noonmati PS Case No. 97/02 under Section 498(A)/307 IPC and subsequently as the victim died, another Section 304(B) IPC was also added. Police after due investigation has submitted charge sheet against the accused/appellant under Section 498(A)/304(B) IPC. 3. The case was committed to the court of sessions for trial and the learned Sessions Judge after furnishing necessary copies framed the charge u/s 498(A)/304(B) IPC against the accused/appellant to which he pleaded not guilty and claimed to be tried. 4. During the course of trial, prosecution examined as many as 7 witnesses and the defence examined none. The plea of defence is of total denial. The accused in his statement under Section 313 of CrPC has also denied all the allegations levelled against him. The learned trial court after completion of the trial, on the basis of evidence on record, convicted the accused/appellant as mentioned above. 5. Challenging certain infirmities in the judgment and order, the present appeal has been preferred on the ground that the learned trial court has failed to appreciate the evidence in proper perspective of law and has wrongly placed reliance upon the testimony of PW.1 and PW.3 as regards the cause of death of the deceased but has overlooked the aspects that the material portion of their evidence is contradicted by the I/O of the case. That apart, it has been assailed that there is no any proper, specific evidence as regards assault and harassment upon the victim, on the part of the accused/appellant so as to constitute cruelty, not to speak of any requisite evidence that deceased was subjected to torture for non-payment of dowry. Similarly, it is also assailed that the learned trial court failed to appreciate the fact that the evidence of informant is quite inconsistent with that of FIR and over and above there is nothing to act upon the evidence so made by PW.1 and PW.3 about the dying declaration so made by the deceased, there being no supporting evidence at all. 6. The learned senior counsel for the appellant Mr. H.R.A. Choudhury, assisted by Ms. S.K. Nargis, learned counsel has vehemently argued that the judgment and order of conviction of the trial court is perverse and it does not comprise of requisite discussion as about complicity of the accused with the offence alleged. It has been contended that in absence of any specific evidence as regards any torture and harassment upon the deceased during the married life, the simple and vague testimony of PW.1 and PW.3 is not enough to postulate cruelty that she has been harassed with a demand of dowry. Further, non-examination of father of the victim to whom demand of dowry was made, is stated to be fatal. Accordingly, present appeal is filed to set aside the aforesaid judgment of conviction. 7. On the other hand, Mr. B. Das, the learned Addl. PP has given his counter reply that the offence under Section 304 (B) of IPC is against matrimonial offence which is intended to curb the violence against women in matrimonial house and the learned court has rightly convicted the accused/appellant on the basis of evidence on record. That apart, the court is empowered to draw statutory presumption under Section 113(B) of Evidence Act regarding dowry death of the deceased woman, if victim died within 7 years of marriage, it contends. It has also been urged that merely because the PW.1, a neighbour and PW.3, the brother of the deceased, their evidence cannot be discarded by the Court and the circumstances that the accused did not ever attended the deceased in the hospital is also stated to be additional conduct on the part of the accused/appellant which is suggestive of complicity with the offence alleged. 8. 8. I have considered the rival submissions of both the parties and also gone through the evidence on record. The offence for which the accused/appellant was convicted is related to dowry death under Section 304(B) IPC, as such, let us examine the ingredients of the offence under Section 304(B) IPC. In order to convict a person for an offence under Section 304(B) IPC, the following essentials must be proved: (1) The death of a woman must have been caused by burns or bodily injury or otherwise other than normal circumstances; (2) Such death must have been occurred within 7 years of her marriage; (3) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or relatives of her husband; (4) Such cruelty or harassment must be for or in connection with demand of dowry. It is only when the aforesaid ingredients are established by acceptable evidence such death shall be called as "dowry death' and such husband or his relative shall be deemed to have cause her death. 9. Section 113(B) of Evidence Act is also relevant in such cases. Both Section 304(B) IPC and Section 113(B) of Evidence Act enacted with a view to combat the increasing menace of dowry. Section 113(B) of Evidence Act reads as follows: "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 have been subjected by such person to cruelty or harassment for on in connection any demand for dowry, the Court shall presume that such persons has cause dowry death." Explanation - For the purpose of this section, "dowry death" shall have the same meaning as in Section 304(B) of IPC. 10. It is to be noted that in Section 304(B) of IPC, there is no such explanation about meaning of cruelty but having regard to the common background to these offences, the meaning of cruelty of harassment will be same as given in Explanation of 498(A) IPC, under which cruelty by itself amount to an offence and is punishable. The cruelty is common essential to both the Section 498(A) and 304(B) of IPC. The Explanation to Section 498(A) of IPC gives the meaning of cruelty. 11. The cruelty is common essential to both the Section 498(A) and 304(B) of IPC. The Explanation to Section 498(A) of IPC gives the meaning of cruelty. 11. The Hon'ble Apex Court in Manohar Lal v. State of Haryana reported in (2014)9 SCC 645 while dealing an appeal under Section 304(B) IPC held that normally, in a criminal case the accused can be punished for an offence on establishment of commission of that offence on the basis of evidence, may be direct or circumstantial or both. But in case of an offence under Section 304(B) IPC, an exception is been made by deeming provision as to the nature of death as "dowry death" and that the husband or his relative, as the case may be, is deemed to have cause such death, even in the absence of evidence to prove these aspects but on proving the existence of the ingredients of the said offence by convincing evidence. Hence, there is need for greater care and caution, that too having regard to the gravity of the punishment prescribed for the said offence, in scrutinising the evidence and in arriving at the conclusion as to whether all the above mentioned ingredients of the offence are proved by the prosecution. 12. Further, in (2013) 14 SCC 678 (Indrajeet Suresh Prasad Bind and others v. State of Gujrat), it has been categorically held by the Apex Court that mere 'demand of dowry' without proof of 'cruelty' or 'harassment' caused to deceased by husband cannot make him liable for the offence under Section 498(A), 304(B) or Section 306 IPC. 13. A conjoint reading of Section 113 (B) of the Evidence Act and Section 304(B) of IPC shows that there must be materials to show that soon before the death the victim, she was subjected to cruelty and harassment. The expression "soon before her death" is explained in Hira Lal v. State (Govt. Of NCT of Delhi) reported in 2003 AIR SCW 3570, wherein it has been held by the Apex Court as under: "The Determination of period which can come within the term "soon before" is left to be determined by the Courts, depending upon the facts and circumstance of each case. Suffice, however, to indicate that 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. Suffice, however, to indicate that 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 and live link between the effect of cruelty based on dowry demand and time concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence". 14. Keeping in mind, the above proposition of law and the legal pronouncement let us examine the evidence on record. In the instant case out of 7 witnesses, the prosecution has heavily relied upon the evidence of PW.1, Asifa Begum (neighbour) and PW.3, the informant, Rafiqul Islam, who is the brother of the deceased. That apart, other witnesses like PW.2, PW.4, who are here-say witnesses are not supporting of case of the informant/PW.3 and all other witnesses are official witnesses like Medical Officer as well as the Investigating Officers. Upon the scrutiny of the evidence of PW.1, it is found that about one week ago deceased told her that she was subjected to torture by her husband for insufficient dowry. However, she made no whisper as to how the torture was made and what sort of proposal of dowry demand was made by the accused. Mere statement so made by the victim that she was subjected to torture is not sufficient to reflect the torture as envisaged under the term of 'cruelty' within the meaning of Section 498(A) or 304(B) IPC. Her evidence is also silent as to under what circumstances the deceased succumbed to her injury. Similar is the version of PW.3, who has stated same thing as by PW.1 that his sister was subjected to torture by her husband for insufficient dowry but nowhere he explained as to what sort of demand was made nor the way and time and extent of torture so inflicted upon the victim. His evidence is also not enough to establish torture and cruelty. The household matrimonial disturbance is common in the people like deceased and the prosecution is obliged to prove the manner of torture etc. so as to bring a vivid picture to gauge the cruelty within the purview of law. 15. His evidence is also not enough to establish torture and cruelty. The household matrimonial disturbance is common in the people like deceased and the prosecution is obliged to prove the manner of torture etc. so as to bring a vivid picture to gauge the cruelty within the purview of law. 15. Moreover, as admitted by the PW.3, the demand of dowry was made to his father but his father was not examined to prove such fact. Both the witnesses (PW.1 and PW.3) given another crucial statement that deceased stated before them that it was the accused who set fire on her (while she was in hospital). But it is peculiar to note that said PW.1 in her examination-in-chief stated that victim was unable to speak while she was in hospital and that apart the I/O, PW.6, has totally demolished the veracity of said witnesses, while the I/O contradicted their statements that those witnesses never stated before him that the accused husband set fire to the victim. In view of such material omission and contradiction on the part of evidence of PW.1 and PW.3 no ex facie reliance can be placed on their evidence. Over and above, the evidence of PW.1 and PW.3 as regards the dying declaration so made by the victim, cannot also be accepted in view of the fact that no such statement was recorded by the Medical Officer nor the I/O has recorded such statement even though the victim survived for more than 1 month after the occurrence. 16. PW.5, Dr. PC Sharma, has given a finding on the Post Mortem that the death was due to exhaustion following ante-mortem burn involving about 50% of the body surface area. 17. The other witness, PW.2, Soyef Ali and PW.4, Jalal Uddin Ahmed have no knowledge about the occurrence save and except the fact the deceased died of burn injury and the fact that the deceased used to quarrel with her husband at sometimes. Peculiarly enough, the PW.4 has stated that though the deceased told him that accused used to assault her but she did not tell the reason of assault. 18. PW.4 is simply signed the seizure list-Ext.2. Investigation Officers, PW.6 (H. Kalita) and PW.7 (Nirod Deka) has stated about the investigation and making of seizure list (Exht.2) and about filing of charge sheet (Exht. 18. PW.4 is simply signed the seizure list-Ext.2. Investigation Officers, PW.6 (H. Kalita) and PW.7 (Nirod Deka) has stated about the investigation and making of seizure list (Exht.2) and about filing of charge sheet (Exht. 7) but has not explained as to under what circumstances the seizure was made. 19. In view of the evidence on record, it is seen that the prosecution has failed to prove about the demand of dowry by the accused/appellant and also the manner of cruelty or harassment caused to the deceased by the appellant. In view of the severity of the offence, nature of accusations, the prosecution is under bounden duty to prove the same within the ambit of offence mentioned above. The learned trial court erroneously placed reliance upon the evidence of PW.1 PW.3 about dying declaration so made (which is contradicted by I/O) and about the dowry demand so made by the deceased (not at all specifically spelled out about such demand). The learned court failed to appreciate that the prosecution has not been able to prove that dowry demand was made by the accused either in the time of marriage or subsequently as it has not produce convincing and cogent evidence in support of the charge. The evidence on record is not clear as to what sort of demand was made by the accused. Testimony of the informant is general and not specific. No specific incidents have been indicated suggesting the offence of cruelty and harassment made by the accused/appellant. The evidence on record is highly insufficient to hold that the deceased was harassed "soon before her death" or in connection with demand for dowry. It can be held that the two ingredients of the offence (No.3 and No.4) as mentioned above is not at all proved by the prosecution, in view of which, defence is not required to adduce rebuttal evidence. Similarly, presumption under Section 113(B) of Evidence Act cannot be drawn against the accused in absence of proof of 'cruelty'. 20. The learned trial court has taken adverse note of absence of accused in the hospital while the deceased was in hospital but the same aspect deserves no consideration because as per evidence on record the accused was apprehended immediately after the occurrence and arrested by police. 20. The learned trial court has taken adverse note of absence of accused in the hospital while the deceased was in hospital but the same aspect deserves no consideration because as per evidence on record the accused was apprehended immediately after the occurrence and arrested by police. Learned senior counsel for the appellant has also submitted that he was behind the bar for more than 3 months for which he could not attend the victim in the hospital. Submission of the learned senior counsel for the appellant finds support on the matters of records. 21. In the given case, the demand of dowry was not at all proved and evidence indicates that improper behaviour was on account of less dowry having been given. Due to lack of convincing evidence to prove all the essentials of Section 304(B) IPC and Section 113 of Evidence Act, the charge under Section 304(B) IPC must fail. 22. For the aforesaid reasons, the impugned judgment and order dated 3.1.2007 passed by the learned Sessions Judge, Kamrup at Guwahati in Sessions Case No. 119(K)/2004 is hereby set aside. Appeal stands allowed. The accused/appellant be set at liberty forthwith. Bail bonds are discharged. 23. Return the LCR.