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2018 DIGILAW 1717 (GAU)

Samad Ali S/o Nurul Hoque v. State of Assam

2018-12-11

RUMI KUMARI PHUKAN

body2018
JUDGMENT : Heard Mr. M.A. Sheikh, learned counsel for the appellant and Mr. B.J. Dutta, learned Addl. PP, Assam for and on behalf of the State respondent. 2. The present appeal has been preferred against the judgment and order dated 28.02.2018, passed by the learned Addl. Sessions Judge, Barpeta, in connection with Sessions Case No. 33/2017 (corresponding to G.R Case No. 3359/2016) whereby the present appellant has been convicted under section 304(B) I.P.C. and sentenced to undergo R.I, for seven years. 3. The prosecution case, as revealed from the FIR filed by one Bahazuddin (PW.3) inter alia is that his granddaughter, Asma Khatun was married with accused Samad Ali about 12 months back and she used to stay with him as husband and wife. After the marriage, the accused person and his father Nurul Amin demanded Rs. 50,000/-as dowry but as the father of the deceased was a poor person, he could not fulfil the demand. As a result the accused persons subjected her both physical and mental torture. Though she tried to fulfil her obligation as wife, the accused persons threatened to kill her, if she could not bring money as demanded by the accused. However, on 28.06.2016, in the morning he got the information that body of Asma Khatun was found hanging in the home of accused. Accordingly the informant rushed to the matrimonial house of his granddaughter and saw her dead body hanging. He suspected that the accused persons killed her and hanged her body to show that she committed suicide. 4. Resultantly Barpeta P.S Case No. 1333/2016, under sections 304(B)/34 IPC was registered. During the investigation, the police visited the place of occurrence, recorded the statement of witnesses, drew sketch map, seized one piece of printed saree, made inquest on the dead body and sent the dead body for the post mortem examination. After conclusion of the investigation, the case was charge sheeted u/s 304(B) IPC. Eventually charge under section 304(B) IPC was framed against appellant Samad Ali, to which he pleaded not guilty to the charge. 5. During trial, the prosecution examined as many as 10 witnesses in support of their case and exhibited some documents including FIR (Ext.1), Inquest Report (Ext.2), Post-mortem Examination report (Ext.3), Seizure list (Ext.4), Sketch map (Ext.5) and charge sheet (Ext.6). The defence examined none. The plea of defence is of total denial. 5. During trial, the prosecution examined as many as 10 witnesses in support of their case and exhibited some documents including FIR (Ext.1), Inquest Report (Ext.2), Post-mortem Examination report (Ext.3), Seizure list (Ext.4), Sketch map (Ext.5) and charge sheet (Ext.6). The defence examined none. The plea of defence is of total denial. The accused was examined under Section 313 of CrPC where he denied all the allegations. At the conclusion of the trial, the accused was held guilty u/s 304B IPC and convicted as aforesaid, hence the appeal. 6. The crux of the argument the learned counsel for the appellant is that the appreciation of evidence by the learned trial Court is erroneous, as the evidence on record is highly insufficient to prove the ingredients of the offence. It has been strenuously contended that the evidence on record is not at all specific as regards the demand of dowry or torture etc and save and except some vague statement of relative of the deceased i.e. the father, grandfather and brother-in-law of the accused which is self contradictory as well as contradicted by the IO, there is total lack of evidence in support of the charge. Further it has been pointed out that the background of the case, though relevant was not appreciated by the learned trial Court. 7. The learned Addl. PP B.J Dutta has however, opposed such contention of the learned counsel for the appellant and has submitted that evidence on record is sufficient to prove the factum of dowry demand on the part of the accused/appellant in the form of cash money and as the deceased died within 7 years of her marriage in suspicious circumstances, the learned trial Court has rightly held the accused guilty and it calls for no interference. It also contends that there was mark of injury on the body of the deceased as indicated in the post mortem report which is suffice to indicate torture upon the deceased. 8. I have carefully gone through the evidence on record and considered the contention of both the parties. 9. Insofar as the background of the story is concerned it emerges from the evidence that the deceased was a married woman having a child but there is no evidence that she has divorced her earlier husband. 8. I have carefully gone through the evidence on record and considered the contention of both the parties. 9. Insofar as the background of the story is concerned it emerges from the evidence that the deceased was a married woman having a child but there is no evidence that she has divorced her earlier husband. She married the accused appellant out of love and affection whereas the accused appellant is also a married man having two children. The family members of the deceased have never visited the matrimonial house of the deceased/appellant according to the prosecution witnesses/parents of the appellant, although according to PW-3 & PW-4 they visited their house in one point of time. On the day of occurrence the appellant was not with the deceased as he went to the house of his first wife and deceased was alone in her room. She was found hanging inside the room and door was locked from inside and on informed neighbouring people and Gaonburah arrived and the dead body was brought down. 10. So far as the evidence of the grandfather/PW-3 and father of deceased/PW-4 is that the deceased married the accused/appellant out of love and affection but they could not say properly as to who was the Kazi of their marriage and they are not regular visitor to the house of the deceased and not aware about the relation between the parties. Their only evidence is that the deceased when went to the house of PW-3 prior to one week of her death she told that her husband demanded Rs. 50,000/- from her and in the event she failed to fulfil the demand he will kill her and he tried to persuade the parties to settle peacefully but the accused quarrelled with him. The PW-3 did not file any sort of FIR against the accused for such dowry demand with threat to life. The PW-4 also stated that his deceased daughter informed him over telephone about the demand of Rs. 50,000/- by the appellant with the threatening. He did nothing and then came to know about the death of his daughter. The evidence of both PW-3 & PW-4 on the aspect cannot be accepted in evidence as admittedly by them, they have not made such statement before the IO during the investigation regarding dowry demand and torture etc. 50,000/- by the appellant with the threatening. He did nothing and then came to know about the death of his daughter. The evidence of both PW-3 & PW-4 on the aspect cannot be accepted in evidence as admittedly by them, they have not made such statement before the IO during the investigation regarding dowry demand and torture etc. Such a new set of evidence during the course of trial, that too without evidence of torture for not fulfilling the demand which may amount to cruelty within the meaning of Sec. 498A IPC cannot be legally sustainable. 11. The whole prosecution is based only on the evidence of PW3 and PW4 and as indicated, they have not described anything that can be treated as torture on the demand of dowry which may amount to cruelty. Similarly, the evidence of PW8, who is a related brother-in-law of the deceased, has given a statement in course of trial that the deceased informed him over telephone that she was subjected to torture by her husband but has not spelt out anything about the nature, time and manner of torture. Further he narrated the fact that few days before the death one of his brother purchased a bus ticket for Asma to visit her parents at Lakhimpur but the accused has forcefully taken her back and subsequently the accused demanded Rs. 50,000 as dowry with threatening to the life of Asma. No date and time etc has been mentioned. It is stated that after few days they heard about the death of Asma. Such a statement of PW8 is contradicted by the IO(PW10) that the PW8 did not state before him all such statement that is deposed before the court. In view of such material contradiction of PW8 as well as the admission of PW3 and PW4 that they never stated before the IO all about the episode of dowry demand and threatening the same cannot be legally accepted as it may be an afterthought and exaggeration of facts. Because had there been torture with threatening to the life of the deceased before such incident the father would have filed necessary FIR. A wife cannot remain with her husband by reposing faith in him if there was a real threat to her life. Because had there been torture with threatening to the life of the deceased before such incident the father would have filed necessary FIR. A wife cannot remain with her husband by reposing faith in him if there was a real threat to her life. It can be inferred that PW3, PW4 and PW8, who did have visiting terms with the deceased because of love marriage between the parties, have now come up with certain statement after the death of Asma. Their evidence is not all convincing and is not supported by other evidence on record. 12. Further, as per the FIR the victim was killed and kept her hanging because of non-fulfilling the dowry demand. Now one time demand of money cannot be treated as a dowry demand as it was not associated with any sort of torture within the purview of law. On the other hand, the evidence of MO(PW7) reflects that there are old injuries like bruise in the left thigh and two contutions in both thighs at the knee joint and the doctor opined that all those injuries are old injuries and the death was due to asphyxia following antemortem suicidal hanging. So the evidence of MO is clear and specific that it is a case of suicidal hanging and not a homicidal death. 13. Insofar as the other evidence is concerned it would reflect that the PW2 and PW5 who are the parents of the accused have also stated that the deceased Asma was the second wife of their son/accused Samad. It is sated that the first wife of their son is still alive having two children and out of love and affection, Samad has married to Asma and they even do not know the informant(grand-father of deceased) and her father as they never visited their house. It is stated in their evidence that prior to the day of occurrence their son Samad went to the house of his first wife and Asma was alone in her room and on the day of incident as Asma did not get up from her sleep on suspicion they peeped through the window and saw her body hanging from a wooden bar. They made hue and cry following which the villagers gathered including the gaonburah. They informed their son who was in the house of his father-in-law/PW9 and he rushed to the house. They made hue and cry following which the villagers gathered including the gaonburah. They informed their son who was in the house of his father-in-law/PW9 and he rushed to the house. The door was opened by the gaonburah and the police also arrived and brought down the dead body and kept the dead body for two days in a coffin till the father of the deceased arrived. According to them the relation between Samad and Asma was cordial and there was no incident of assault or discord between them and the did not know the reason for committing suicide by Asma. 14. Supporting the evidence of PW2 and PW5, the gaonburah/PW6 in his evidence stated that on being informed about the incident of death of Asma by PW5, he immediately visited their house and saw the dead body of Asma hanging inside the bed room and thereafter the police arrived and dropped the dead body and did the inquest of the dead body. He signed the inquest report (exhibit 2) accordingly. In cross-examination he also stated that Samad first was living with him with children and Asma is the second wife and on the day of occurrence Samad was not found in the house and it was informed by PW5 that he went to the residence of his father-in-law at Dabalia Para on the previous night. He never heard any incident of assault to the deceased on demand of dowry by the accused. He also stated that the police entered the room by breaking the lock and he did not know the cause of the death of Asma. 15. Another neighbour (PW1) of the deceased stated the same version that hearing the incident that Asma died by hanging and he went to their house and saw the police visited the spot and brought down the dead body and sent it for post-mortem. He also stated about the second marriage of the accused with the deceased despite having the first wife with two children. In cross-examination he stated that on the previous day of incident the accused went to the house of his father-in-law and the deceased was found hanging inside her bed room by locking the door inside but he did not know the reason of her death. In cross-examination he stated that on the previous day of incident the accused went to the house of his father-in-law and the deceased was found hanging inside her bed room by locking the door inside but he did not know the reason of her death. Supporting the fact that the accused went to the house of his father-in-law, the said person that is PW9 stated that on the day of incident while the accused was in his house he was informed over telephone informing that Asma was found hanging inside her room. He along with accused rushed to the house and saw the dead body hanging with her churni and then the police and a Magistrate arrived and seized the churni through exhibit 4 and he signed the same. It is stated in his cross-examination that the accused Samad married to his daughter Rup Bhanu and they have two children and they came to their house prior to 4-5 days of the occurrence. The door was locked from inside when they arrived and the police and the Magistrate entered the room in presence of the gaonburah by breaking the lock. 16. Lastly, the investigating officer (PW10) stated about the investigation, since preparation of sketch map, seizure of the clothes, sending of the dead body for post-mortem and finally, the submission of charge sheet against the accused. He, however, admitted in cross-examination that UD case was registered on the basis of information given by accused Samad Ali on 20.8.2016 where he informed that when he went to the house of his father-in-law along with his first wife, the victim committed suicide in his house. During the course of investigation of the UD case, a subsequent FIR was received at 1:10 PM and the information given by Samad was received in the morning on the same day. He did not submit any report on the fate of the UD case and on the basis of the FIR he filed the charge sheet. Regarding the statement of witness (PW3) it is stated that the said witness did not state before him that he did not notice any tool below the hanging body of Asma. He did not submit any report on the fate of the UD case and on the basis of the FIR he filed the charge sheet. Regarding the statement of witness (PW3) it is stated that the said witness did not state before him that he did not notice any tool below the hanging body of Asma. PW8 also did not state before him that his brother Asraf purchased a bus ticket for Asma to visit Lakhimpur and the accused forcefully taken her back when she was about to board the bus and subsequently the accused made demand of Rs. 50,000 with threatening to kill her and also PW.8. 17. From the impugned judgment it appears that the learned trial court has heavily relied upon the evidence of PW3, PW4 and PW8 to arrive at the finding of guilt of dowry demand whereas their testimony is contradicted by the IO and also by their own admission (by PW3 and PW4) that they never stated about such dowry demand and torture before the IO. In such backdrop no explicit reliance can be placed upon such evidence which I have discussed above. The learned trial court has accepted the prima facie evidence given by those witnesses without appreciating the same in proper perspective. Otherwise also the evidence of all the above witnesses (PW4, PW5 and PW8) is not at all enough to prove torture on the deceased which may amount to cruelty on demand of dowry. Other evidence on record is totally silent on the matter of such torture and dowry demand; rather, it reflects that their relation was cordial. The learned trial court has taken note of the physical injury that was found on the deceased to assume physical torture on her, but the medical officer has also stated that those are old injuries and cannot be a reason for the death and has specifically opined that it is a case of suicidal hanging. Reliance on such medical evidence is also found misplaced. 18. The prosecution u/s 304 (B) IPC has to prove the ingredients of the offence and cannot escape from the burden of proof that the harassment and cruelty was related to the demand of dowry and same was caused soon before her death. The word dowry is to be understood as it defined in Sec. 2 of the Dowry Prohibition Act, 1961. The word dowry is to be understood as it defined in Sec. 2 of the Dowry Prohibition Act, 1961. Thus, there are 3 (three) occasions related to dowry, that is before marriage, at the time of marriage and at an unending period. To attract the provision of Sec. 304 (B) one of the main ingredient of the offence which is required to be established is that “soon before her death” she was subjected to cruelty and harassment “in connection with demand of dowry”. The expression “soon before her death” used in the substantive Sec. 304 (B) IPC and Sec. 113 (B) of the Evidence Act is present with the idea of proximity text. The determination of the period which can come within a term “soon before” is left to be determined by the Court depending upon the facts and circumstances 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. There must be existence of proximate and live link between effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the women concerned it would be of no consequence. 19. A perusal of Sec. 304 (B) clearly shows that if a married women dies otherwise than under normal circumstances within 7 years of her marriage and it is shown that she was subjected to cruelty or harassment, soon before her death, by her husband or any relative of her husband in connection with the demand of dowry, such death shall be called dowry death and such husband or relative shall be deemed to have caused the death. 20. Sec. 304-B IPC relates to dowry death, which reads as follows:- 304 B. Dowry death.- (1) Where the death of a women 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 of dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death. Explanation:-For the purposes of this sub-section, “dowry” shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). 21. The expression soon before her death is used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act. No definite period has been indicated and the expression soon before her death is not defined. The determination of period which can come within the term “soon before her death” left to be determined by the Court depending upon the facts and circumstances of each case. 22. In the context of the Explanation 2 to Section 113(B) the word ‘dowry death’ has to be understood in relation to the word ‘dowry’ as defined in Section 2 of the Dowry Prohibition Act, which reads as under:- Section 2 definition of ‘dowry’ – Dowry means any property or valuable property given or agreed to be given either directly or indirectly. (a) By one party to a marriage to the other party to the marriage, or (b) By the parents of either party to a marriage or any other person, or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom Muslim Personal Law(Shariat) applies. 23. The presumption u/s 113-B of the Evidence Act with respect to dowry death can be raised only on the proof of the following four essential conditions. 1. The women was subjected to cruelty or harassment, 2. by the husband or his relatives: 3. for or in connection with any demand for dowry; 4. soon before her death. 24. Section 113-B of the Evidence Act reads as under:- 113 B. 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 has been subjected by such person to cruelty or harassment for, or in connection with, any demand of dowry, the Court shall presume that such person had caused the dowry death. Explanation. For the purpose of this section, dowry death shall have the same meaning as in section 304B, of the Indian Penal Code, (45 of 1860). 25. In Gurdip Singh Vs. Explanation. For the purpose of this section, dowry death shall have the same meaning as in section 304B, of the Indian Penal Code, (45 of 1860). 25. In Gurdip Singh Vs. State of Punjab 2013 (10) SCC 395 it has been held that though the expression “presumed” is not used under Section 304-B IPC, the words “shall be deemed” under Section 304-B carry, literally and under law, the same meaning since the intent and context requires such attribution. Section 304-B IPC on dowry death and Section 113-B of the Evidence Act, 1872, on presumption, were introduced by the same Act i.e. Act 43 of 1986, with effect from 19-11-1986, and Section 498-A IPC and Section 113-A of the Evidence Act were introduced by Act 46 of 1983, with effect from 25-12-1983. The amendments under the Evidence Act are only consequential to the amendments under the Dowry Prohibition Act, 1961 and the Indian Penal Code. It is significant to note that under Section 113-A, the expression is “court may presume” whereas under Section 113-B, the expression is “court shall presume”. Parliament did intend the provisions to be more stringent and effective in view of the growing social evil as can be seen from the Statement of Objects and Reasons in the amending Act. Being a mandatory presumption on the guilty conduct of an accused u/s 304-B, it is for the prosecution to first show the availability of all the ingredients of the offence so as to shift the burden of proof in terms of Section 113-B of the Evidence Act. Once all the ingredients are present, the presumption of innocence fades away. 26. The Apex Court further held in Bipin Jaiswal Vs. State of Andhra Pradesh 2013 (3) SCC 684 that in any case to hold the accused guilty of both the offences u/s 304B and 498A IPC the prosecution is required to prove beyond reasonable doubt that deceased was subjected to cruelty or harassment by the accused. 27. In the given background of this case and on critical analysis of the evidence on record and the entire facts and circumstances another view can be taken, one that is inconsistent with the hypothesis of the guilt of the accused. 27. In the given background of this case and on critical analysis of the evidence on record and the entire facts and circumstances another view can be taken, one that is inconsistent with the hypothesis of the guilt of the accused. The deceased was the second wife of the accused and prior to the fateful day the accused went along with his first wife and children to her house for which feeling insecured and frustrated, for being alone and out this she might have committed suicide. It is a general tendency of a woman not to tolerate the indulgence given by her husband to his other wife and she becomes arrogant and aggressive to the entire relation which spurred her to end her life. This has happened in this case. There being no proper evidence of dowry demand and torture the present view may be the plausible reason for the death of the victim. Law is settled that when two views possible and one view which leans in favour of accused, is to be acceted. 28. In view of the discussions made above and in the light of legal provisions mentioned above this court is not inclined to accept the findings arrived at by the trial Court as the evidence on record is far below the requirement to prove the ingredients of the offence u/s 304B IPC. Even for drawing the presumption u/s 113B of the Evidence Act, for a dowry death the prosecution needs to prove beyond reasonable doubt that the victim was subjected to cruelty soon before her death but there is no legal evidence to prove the same. Resultantly, the conviction and sentence of the appellant cannot be sustained. Accordingly the appeal is allowed and the impugned judgment and order is hereby quashed and set aside. Accused is set at liberty forthwith. Send down the LCR.