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2017 DIGILAW 55 (GAU)

Durga Chauhan v. State of Assam

2017-01-10

RUMI KUMARI PHUKAN

body2017
JUDGMENT : Mrs. Rumi Kumari Phukan, J. Heard Mr AK Gupta, learned counsel for appellant. Also heard Mr B Sarma, learned additional public prosecutor. 2. This appeal is directed against judgment of the learned Additional Sessions Judge-II(FTC), Tinsukia dated 13.11.2007 in sessions case 113(T)/2005 whereby appellant is sentenced to rigorous imprisonment for 7 years under Section 304(B) of the IPC. 3. An FIR was lodged by one Gouri Shankar Chauhan on 5.1.2005 stating inter alia that his daughter Mina Devi was married with the accused in the year 2000 and she was subjected to physical and mental torture by her in-laws and on 4.1.2005 he got information about the serious illness of his daughter and immediately he went to the house of accused and found his daughter's dead body and he suspects that his daughter has been killed by her husband and in-laws. 4. On the basis of the said FIR Tinsukia PS case 21/2005 u/s 304(B) of the IPC was registered and after completion of the investigation charge sheet was submitted to the learned CJM, Tinsukia. The said case was committed to the court of sessions and the learned Sessions Judge, Tinsukia framed charge u/s 304(B) of the IPC against the accused. The accused pleaded not guilty to the said charge. Prosecution examined 12 witnesses in support of the case. The plea of defence is of total denial. Defence also examined two witnesses in support of their case. At the conclusion of trial the accused was convicted u/s 304(B) of the IPC and sentenced to rigorous imprisonment for 7 years. Hence this appeal. 5. Learned counsel for appellant submits that there is inadequate evidence as regards dowry demand and torture and therefore the conviction is bad in law and liable to be set aside. 6. Learned additional public prosecutor submits that the learned trial court has rightly convicted the appellant and there is no scope for interfering in the order of the learned trial court. 7. I have considered rival submissions. 8. On appreciation of the evidence we find that of course there is no eye witness to the torture alleged to have been meted out on the victim girl. 7. I have considered rival submissions. 8. On appreciation of the evidence we find that of course there is no eye witness to the torture alleged to have been meted out on the victim girl. In this context it is found that PW1 Jitendra Chauhan, sister of the deceased, and PW3 Gauri Shankar Chauhan(father of the deceased) have deposed in evidence that on the day of occurrence they were informed about the serious illness of the deceased and on arrival they found the dead body of Mina and that on several occasions they were reported by Mina weeping that she was assaulted by the accused demanding dowry. Though these witnesses asked the accused not to torture his wife, the former said that he will do whatever he liked to. PW1 has also narrated in details that even on earlier occasions when the child of the deceased was 2 years old, the accused has brutally assaulted the deceased and she sustained fracture injury in the head in the result. 9. As per the evidence of medical officer, Dr Mridul Gogoi, who performed postmortem on Mina, the death was caused due to asphyxia resulting from ante mortem strangulation by ligature and homicidal nature. The following injuries were found on the deceased. (1) Finger nail mark 1cm present at the upper margin of ligature mark and below the chin. (2) Contusion of size 4cm x 3cm oval in shape is present over back of the chest and below 6cm from seventh cervical spine. (3) Abrasion of size 2cm x 2cm at dorsun aspect of right heel. (4) Abrasion of size 2m x 1cm over dorsum saspect of left heel. Mark of ligature found at the level of evecoid cartilage, the mark completely encircle the neck transversely, 2cm breadth more prominent at anterirly and right lateraly to the neck, faintly left laterally and back of the neck. On dissection soft tissue below the ligature mark contused, fracture superior of thyroid cartilage (both) seen. Petenical haemorrhage immediately adjacent to ligature mark present. 10. Thus, from the evidence of PW1 and 3 who were immediate relatives of the deceased it is apparent that Mina was subjected to torture since after her marriage with the accused demanding dowry. On dissection soft tissue below the ligature mark contused, fracture superior of thyroid cartilage (both) seen. Petenical haemorrhage immediately adjacent to ligature mark present. 10. Thus, from the evidence of PW1 and 3 who were immediate relatives of the deceased it is apparent that Mina was subjected to torture since after her marriage with the accused demanding dowry. The other witnesses, namely PW2 Junera Begum, PW4 Punam Chauhan, PW5 Swapna Cauhan, PW6 Hareram Chauhan, PW7 Ramayan Verma, PW8 Ramjanam Chauhan and PW9 Laxmi Narayan Chauhan arrived at the house of the accused after the death of Mina and found the dead body of Mina lying inside the house of the accused covered with a piece of cloth but did not find the accused inside the house. 11. The accused in support of his defence has examined himself as DW1 and one Jayram Verma as DW2. They stated in evidence that the accused went out as usual on the day of occurrence after taking meal at about 8 AM and he had no quarrel with his wife. As regards the death of his wife the accused stated in evidence that he did not know how his wife died and that he was absent in his house and only on 9.1.20105 he was apprehended by the police. DW2 has supported the evidence of DW1 that he saw the accused going out of his house at about 8 AM and that he did not know how the wife of the accused died. 12. It is established from the evidence of the prosecution that the accused who has a battery repairing business married Mina Devi on 2.2.2000 and the incident took place on 4.1.2005. PW1 stated that he was reported by Mina that she has been subjected to torture demanding dowry. This is also supported by the father of Mina. After receiving information, PW1, 2, 4, 5, 6 and 7 went to the house of the victim and found her dead body inside the house. PW4, a 12-year-old girl and niece of the accused, first saw the dead body of Mina inside the house. The post mortem report says the death was caused due to asphyxia and as a result of strangulation Mina Devi died. PW4, a 12-year-old girl and niece of the accused, first saw the dead body of Mina inside the house. The post mortem report says the death was caused due to asphyxia and as a result of strangulation Mina Devi died. The injury 1 shows finger nail mark of size 1cm in the upper margin of ligature mark below the chin and in the back side of the chest there is contusion and also abrasion in the dorsum aspect of the left and right heels and the mark of ligature was found in the evecoid cartilage level and 12-24 hours before the postmortem the victim had died. 13. The occurrence took place inside the house in a hush-hush manner and therefore it was difficult on the part of prosecution to give direct evidence. Nearby relatives of the accused did not give evidence. Family members of the victim came after the information sent to them. Noteworthy it is, prior to the incident the victim complained to her brother to the effect that she has been subjected to torture demanding dowry. 14. From the evidence it appears that before committing the crime the accused was seen with the deceased in his residence and thereafter left for Hojai and remained there from where he was caught by police from the house of one Kapil Chauhan. Had the accused had a good relationship with the deceased he would have contacted his family during the hiding days. Therefore it can be inferred that after committing the crime he absconded. He failed to say about the business for which he had gone to Hojai and totally failed to offer any explanation as to under what circumstances his wife sustained such type of injuries in his home and he did not make a complaint against anybody for the alleged murder of his wife. 15. Such a casual statement of the accused cannot be accepted to substantiate his plea at all. The deceased was none but his wife who was found dead with serious injury to her body but the appellant did not make any query about the cause of the death and has simply denied the occurrence that he did not know how his wife died. The defence evidence is accordingly rejected. 16. The deceased was none but his wife who was found dead with serious injury to her body but the appellant did not make any query about the cause of the death and has simply denied the occurrence that he did not know how his wife died. The defence evidence is accordingly rejected. 16. The accused in his statement u/s 313 of the CrPC has said that he did not know how it had happened and failed to explain the circumstances under which the deceased died. 17. In West Bengal v. Mir Mohammad Omar and others reported in (2000) 8 SCC 382 , the Supreme Court held as follows. "In this case the assailants forcibly dragged the deceased Mahesh from the house where he was taking shelter on account of the fear of the accused and took him away at about 2.30 in the night. Next day in the morning his mangled body was found lying in the hospital. The trial court convicted the accused under Section 364 read with Section 34 IPC and sentenced them to 10 years R.I. The accused preferred an appeal against their conviction before the High Court and the State also filed an appeal challenging the acquittal of the accused for murder charge. The accused had not given any explanation as to what happened to Mahesh after he was abducted by them. The learned Sessions Judge after referring to the law on circumstantial evidence had observed that there was a missing link in the chain of evidence after the deceased was last seen together with the accused persons and the discovery of dead body in the hospital and had concluded that the prosecution had failed to establish the charge of murder against the accused persons beyond any reasonable doubt". The court took note of the provisions of Section 106 of the Evidence Act and laid down the following principle in para 31 to 34 of the reports. "The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. "The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be casualty". 18. In para 4 of judgment in a case reported in 1999 AIR SCW 3536 the Supreme Court held as follows. "In a case based on circumstantial evidences where no eye witness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an application which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has to been taken in a catena of decisions of this Court". 19. On careful scrutiny of the material on record it is to be noted that the conduct of the accused itself blameworthy conduct which reflects that he is the perpetrator of the offence. His wife was found with severe injury to her body inside his house and prior to the occurrence he was the only person residing with the deceased and after the occurrence he was found absent from his house with no explanation being offered as to the reasons of his absence when his wife alone with her minor child in her lap was in his house. 20. In view of earlier tortures demanding dowry and the finding of the dead body of Mina with serious injury to her body is apparently indicative of the fact that the deceased died of torture for dowry demand and died within 7 years of her marriage. Accordingly it is found that the learned court has rightly convicted the accused under the said Sections of law and hence there is nothing to interfere in the impugned judgment and order and accordingly it is upheld. 21. Accordingly the appeal is dismissed. Return the LCR forthwith.