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2017 DIGILAW 850 (GAU)

Hussain Ahmed Laskar v. State of Assam

2017-06-30

MIR ALFAZ ALI

body2017
JUDGMENT AND ORDER : 1. Heard Mr. S.K. Agarwal, learned Amicus Curie and Ms. B. Bhuyan, learned Addl. PP, Assam. 2. The appellant Hussain Ahmed Laskar has been convicted under Section 304(B) IPC by the learned Sessions Judge, Cachar, Silchar in Sessions Case No. 180/2013 and sentenced to imprisonment for 10 years and fine of Rs. 2,000/- with default stipulation. 3. The prosecution case as unfolded during trial is that the victim Wahida Begum was married to the accused/appellant Hussain Ahmed Laskar. She was subjected to torture by the accused/appellant and other members of his family for demand of dowry. After about 6 months of the marriage, the parents of the victim got the information that the victim died. It was suspected by her parents that death of the victim was due to administration of poison. The father of the victim, PW-1, lodged the FIR (Ex. 1). The police registered the case, visited the place of occurrence, prepared inquest report, send the dead body for post-mortem examination, recorded statement of the witnesses and on completion of investigation submitted charge-sheet against the present accused/appellant Hussain Ahmed Laskar and his brother Ali Ahmed Laskar. 4. During trial both the accused persons pleaded not guilty to the charge. 5. In order to bring home the charges altogether six witnesses, namely PW-1, PW-2 & PW-4, being father, uncle and mother respectively, of the victim, PW-3, the doctor and PW-5 & PW-6 being the investigating officers have been examined. Learned Trial Court, on appreciation of the evidence, acquitted the co-accused Ali Ahmed Laskar 6. The accused/appellant has been convicted and sentenced u/s 304-B IPC by the learned Trial Court, essentially drawing a presumption under Section 113(B) of the Evidence Act, in absence of direct evidence. 7. Section 304B IPC and section 113B Evidence Act reads as under: 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. (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 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.” 8. A bare reading of section 304-B of the IPC and Section 113-B Evidence Act would show that presumption of dowry death shall be raised only on proof of the following essential precondition (i) Death of the victim woman occurred within seven years of marriage. (ii) Death was caused by burns or bodily injury or has occurred otherwise than under normal circumstances. (iii) Soon before her death victim had been subjected to cruelty or harassment by her husband or his relatives. (iv) Such cruelty or harassment was for, or in connection with any demand for dowry. 9. Admittedly the death of the victim was within seven years of marriage. The PW-3, Dr. Gunajit Das performed the post-mortem examination and the PM report has been proved as Ex. 6. Evidence of the doctor and the post mortem report (Ex. 6) transpire, that opinion regarding cause of death was kept pending for want of forensic examination report of the vicara. From the testimony of PW-5, the investigating officer, it appears that the vicara preserved for FSL examination was rendered unfit for forensic examination, because of the delay in sending the same to the FSL. Evidently death of the victim was neither caused by burn or other injury. As per the inquest report, Ex 2, there was a black mark on the arm, below the armpit. Ex 6 post mortem report disclosed regarding a bruise, bluish in colour, over lateral aspect of the left arm and a pressure abrasion on middle lateral side of left thigh. Nature and location of the above injuries are hardly suggestive of any intentional assault. There is also no reason for attributing the cause of death to such an insignificant and superficial injury. What therefore transpires is that the cause of death remained undisclosed in the present case. 10. Nature and location of the above injuries are hardly suggestive of any intentional assault. There is also no reason for attributing the cause of death to such an insignificant and superficial injury. What therefore transpires is that the cause of death remained undisclosed in the present case. 10. All the PW-1, PW-2 and PW-4 admittedly arrived the place of occurrence after the death of the victim and found the body of the victim lying in the house of the accused/appellant. The PW1 father of the victim stated in his evidence that the victim died after six months of her marriage with the accused Hussain Ahmed. According to him, after the marriage when the victim visited the parental house for the first time, she expressed happiness and stated that she was happy in her matrimonial home. He has further stated that 10-15 days before the death, when the victim visited his house, she made complain of physical and mental torture for not giving TV and fridge at the time of marriage. She also stated that the co-accused Ali Ahmed Laskar (acquitted), the brother of the accused Hussain Ahmed Laskar tried to develop illicit physical relationship with her. 11. PW-2, Md. Jahan Uddin Laskar, the brother of PW-1 deposed, that after receiving the information about the death of the victim over phone, he informed PW-1 and thereafter, he also went to the house of the victim and found the body of the victim lying in the house of the accused person. This witness has also stated that when the victim visited her parents for the second time after marriage, she stated that she was subjected to torture by the accused persons for not giving fridge and T.V. 12. PW-4, Musstt Imarun Nessa, mother of the victim deposed that after marriage when she visited their house for the first time she expressed her happiness in the matrimonial home. She further stated that after 1½ months of the marriage, when the victim visited her house, she complained of physical and mental torture by the accused person and her in-laws for not giving fridge and motor bike at the time of marriage. She also stated during cross-examination that from the marriage till her death, the victim visited her parental house 5-6 times. 13. She also stated during cross-examination that from the marriage till her death, the victim visited her parental house 5-6 times. 13. PW-5, the investigating officer, clearly stated that there was no allegation of demand of dowry or physical torture in the GD entry made on 04.08.2009, on the basis of which, investigation was set into motion. The cross examination of PWs. 1, 2 and 4 as well as the testimony of the PW5 revealed, that none of these three witnesses had ever stated during their statement recorded under Section 161 Cr.P.C. about any demand of dowry or physical and mental torture on the victim for such demand . No doubt, all omission cannot be considered as contradiction, but the omission of material facts constituting the offence, certainly amounts to contradictions. Total silence of all the prime witnesses regarding the physical and metal harassment and torture on the victim for dowry demand during their statement recorded under Section 161 Cr.P.C. in the facts and circumstances of the case, by no stretch of imagination be brushed side as insignificant omission. 14. Learned trial court is found to have endeavored to rely upon Ex. 1, the FIR, for getting support to the allegation of torture and harassment for demand of dowry. Evidently, occurrence took place on 04.08.2009 and on the same day police was informed and a GD entry was made on the basis of such information. The FIR, Exhibit-1 was lodged on 05.08.2009. PW-5, the Investigating Officer has stated in his evidence that the investigation of the case started on the basis of the GD entry No. 60 dated 04.08.2009 made in the Kachudaram Out Post. The categorical evidence of the PW-5 was that on the basis of the GD entry, he visited the place of occurrence, got the inquest report prepared by the Magistrate, recorded the statement of the witnesses, prepared sketch map, send the body for PM examination and there after the FIR, Ex. 1 was lodged on 05.08.2009. What is apparent from the above evidence of thePW5 is that exhibit-1, FIR was lodged during the course of investigation and therefore, Exhibit-1 the FIR, could not be admitted in evidence because of the bar created by section 162 of the Cr.P.C. 15. 1 was lodged on 05.08.2009. What is apparent from the above evidence of thePW5 is that exhibit-1, FIR was lodged during the course of investigation and therefore, Exhibit-1 the FIR, could not be admitted in evidence because of the bar created by section 162 of the Cr.P.C. 15. What therefore follows is that PW-1, PW-2 and PW-4 stated for the first time in their evidence in court, regarding the physical and metal harassment and torture on the victim for not giving fridge, TV etc. at the time of marriage. Admittedly the deceased visited her parental house 5-6 times from the marriage till her death. According to PW-1, during the last visit of the victim to paternal home before 10-15 days of the occurrence, she has stated regarding demand of T.V and fridge and physical and mental torture for such demand. Whereas, according to PW-2 and 4, it was during second visit of the victim after 1½ months of marriage, she stated regarding physical and mental torture for demand of T.V and fridge etc. According to PW-1 and PW-2 demand was for TV and fridge, whereas, according to PW-4 the demand was for TV and bike. Therefore, the testimony of the PW1, PW-2 & PW-4 appears to be inconsistent and contradictory with regard to the date and time of complain by the victim regarding demand of TV fridge etc and physical and mental torture for such demand. What is further evident is that except a bald and omnibus statement that the victim was subjected to physical and mental harassment, nothing has been stated specifically as to the nature of physical or mental torture. In the above facts and circumstances, the oral testimony of the PW-1, PW-2 and PW-3 regarding physical and mental torture on the victim for dowry demand does not appear to be reliable and worthy of inspiring confidence. What therefore follows is that the prosecution evidence falls short of proving the essential precondition, for drawing presumption under section 113B of the Evidence Act, beyond reasonable doubt. 16. What therefore follows is that the prosecution evidence falls short of proving the essential precondition, for drawing presumption under section 113B of the Evidence Act, beyond reasonable doubt. 16. The Apex Court in Gurdeep Singh vs. State of Punjab and Others, (2011) 12 SCC 408 while dealing with the presumption under section 113(B) vis-a vis the offence under sec 304-B IPC, held as under: “We first take up the argument relating to Section 304-B and the presumption drawn under Section 113-B. A bare reading of Section 304-B pre supposes several facts for its applicability, they being: (i) death should be of burns or bodily injury or has occurred otherwise than under normal circumstances; (ii) Within seven years of the marriage; and (iii) soon before her death she had been subjected to cruelty or harassment by her husband or his relatives. This Court in Suresh Kumar Singh case (2009) 17 SCC 243 : (2011) 1 SC Crl. 989 has held that even if one of the ingredients is not made out, the presumption under Section 113(B) of the Evidence Act would not be available to the prosecution and the onus would not shift to the defence.” 17. In view of what has been discussed herein above, it is abundantly clear that the prosecution evidence is grossly inadequate to bring home the guilt of the accused under section 304-B IPC by the aid of presumption under Section 113(B) of the Evidence Act. Accordingly, the conviction and sentence of the accused is set-aside and the accused be set at liberty forthwith if not required in any other case. 18. Appeal is allowed. 19. Appreciating the assistance rendered by Mr. S.K. Agarwal, learned Amicus Curiae, I hereby provide that he will be entitled to Rs. 7500/- as fees, which shall be paid by the Guwahati High Court Legal Services Committee, upon production of a copy of this judgment. 20. Send down the LCR.