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2018 DIGILAW 712 (ORI)

Hafiz @ Firoz Mahammed v. State Of Orissa

2018-08-01

S.K.SAHOO

body2018
JUDGMENT S. K. Sahoo, J. - The petitioner Hafiz @ Firoz Mahammed has filed this application under section 439 of Cr.P.C. in connection with G.R. Case No.861 of 2017 pending in the Court of learned J.M.F.C., Salipur which arises out of Jagatpur P.S. Case No.275 of 2017 in which charge sheet has been submitted under sections 498-A, 304-B, 306 read with section 34 of the Indian Penal Code and section 4 of the Dowry Prohibition Act. The petitioner moved an application for bail in the Court of learned Sessions Judge, Cuttack in BLAPL No.33 of 2018 which was rejected vide order dated 16.01.2018. 2. On 16.12.2017 Abdul Rahim Khan of Mahasingh Patna under Salipur police station in the district of Cuttack lodged the first information report before the Inspector in charge of Jagatpur police station wherein he alleged that his daughter Sabiha Sehnani (hereafter 'the deceased'), aged about nineteen years was given in marriage with the petitioner on 12.11.2017 as per Muslim rites and customs. At the time of marriage, all the house hold articles and gold ornaments were given to the deceased. Seven days after the marriage, the petitioner started torturing the deceased by assaulting her frequently. The other in-laws family members of the deceased also subjected her to physical and mental torture demanding more dowry. Since the deceased was unable to bear the pain of torture by her husband and the inlaws family members, she came back to the paternal place within ten days of marriage. The petitioner started abusing the deceased over phone. Subsequently, the informant and his family members convinced the deceased and sent her back to her in-laws house with the petitioner. The petitioner used to take liquor everyday in the night and assault the deceased. On 15.12.2017 at about 5.00 p.m., the elder brother-in-law of the deceased intimated the informant over phone that the health condition of the deceased was not good. Getting such message, the informant and his family members reached at the house of the petitioner and found the deceased lying dead on a cot and saliva was dribbling from her mouth. When the informant asked the in-laws family members about the cause of death, they intimated that the deceased had committed suicide. Getting such message, the informant and his family members reached at the house of the petitioner and found the deceased lying dead on a cot and saliva was dribbling from her mouth. When the informant asked the in-laws family members about the cause of death, they intimated that the deceased had committed suicide. After seeing the dead body, the informant firmly believed that the petitioner and the other in-laws family members of the deceased killed her and in order to suppress the incident, they had taken recourse to falsehood. Since the mental condition of the informant was not good after the death of the deceased, there was delay in lodging the first information report. 3. On the basis of the first information report, Jagatpur P.S. Case No.275 of 2017 was registered on 16.12.2017 under sections 498-A, 304-B, 302 read with section 34 of the Indian Penal Code and section 4 of the Dowry Prohibition Act. During course of investigation, the investigating officer examined the witnesses and recorded their statements, seized the nikahnama, ligature material from the spot, conducted inquest over the dead body of the deceased in presence of her family members and relatives and sent the dead body for post mortem examination. The doctor conducting the post mortem examination opined that the cause of death was on account of combined effect of asphyxia and venous congestion due to hanging. The doctor examined the ligature and found that it was strong and tensile enough to bear the weight and jerk of the body when used for hanging and could produce the mark as noticed. The investigating officer seized the wearing apparels of the deceased, the dowry articles and left the same in the zima of the informant. He arrested the petitioner on 17.12.2017 and forwarded him to Court along with his father. On 12.04.2018 charge sheet was submitted under section 498-A, 304-B, 306 read with section 34 of the Indian Penal Code and section 4 of the Dowry Prohibition Act keeping the investigation open as five other co-accused persons were found absconding since the date of occurrence. 4. Mr. Soura Chandra Mohapatra, learned counsel for the petitioner contended that there is nothing in the first information report that there was any demand of dowry either prior to the marriage or at the time of marriage. 4. Mr. Soura Chandra Mohapatra, learned counsel for the petitioner contended that there is nothing in the first information report that there was any demand of dowry either prior to the marriage or at the time of marriage. He argued that in the F.I.R. as well as in the statements of the witnesses, it is mentioned that after the marriage, more dowry was demanded and due to non-fulfillment of the same, the deceased was subjected to physical and mental torture. It is contended that the definition of 'dowry' as per section 2 of the Dowry Prohibition Act, 1961 relates to any property or valuable security given or agreed to be given and the expression 'valuable security' has got the same meaning as in section 30 of the Indian Penal Code. It is contended that since there is no specification about the nature of demand, simply by saying that more dowry was demanded would not attract the definition of 'dowry' as defined under section 2 of the Dowry Prohibition Act and therefore, submission of charge sheet under section 304-B of the Indian Penal Code and section 4 of the Dowry Prohibition Act was not proper and justified. It is further contended that even though the death has taken place a month after the marriage but there is no clinching material to show that the petitioner abetted the commission of suicide by the deceased. The allegations of torture are vague and omnibus in nature. Since no other external injury except the ligature mark around the neck of the deceased was noticed during post mortem examination, it falsifies that the deceased was subjected to any kind of physical assault prior to her death. It is further contended that there is no chance of absconding or tampering with the evidence and therefore, keeping in view the period of detention of the petitioner in judicial custody, the bail application may be favourably considered. Mr. Arupananda Das, learned Additional Govt. Advocate on the other hand opposed the prayer for bail and he placed the statements of the informant and other family members of the deceased and contended that prima facie materials for the commission of offences under which charge sheet has been submitted are clearly made out. Mr. Arupananda Das, learned Additional Govt. Advocate on the other hand opposed the prayer for bail and he placed the statements of the informant and other family members of the deceased and contended that prima facie materials for the commission of offences under which charge sheet has been submitted are clearly made out. He argued that the time gap between the date of marriage and date of death of the deceased was so short that unless there would have been any kind of physical and mental torture, the deceased would not have taken such an extreme step to end her life at the threshold of her marital life. It is contended that all the witnesses including the informant in their statements recorded under section 161 Cr.P.C. have stated that there was demand of dowry not only at the time of marriage but also after marriage and further stated that the deceased was subjected to physical and mental torture in connection with demand of dowry. It was argued that even though the investigating officer has not specifically collected the nature of demand of dowry from the witnesses but the investigation is still under progress and he might collect specific materials in that respect from the witnesses and merely because of the fault of the investigating officer in recording the statements in a proper manner keeping in view the definition of 'dowry' as per the Dowry Prohibition Act, at this stage, it would be premature to hold that the ingredients of the offences under section 304-B of the Indian Penal Code and section 4 of the Dowry Prohibition Act are not attracted. It is further contended that the co-accused persons are yet to be arrested and the release of the petitioner at this stage may hamper further investigation which is under progress and there is every chance of tampering with the evidence and therefore, it would not be proper to release the petitioner on bail. Mr. P.R. Singh, learned counsel appearing for the informant vehemently opposed the prayer for bail and contended that the petitioner is the main accused and not only he was torturing the deceased physically and mentally after taking liquor every night but also demanding dowry. It is contended that false information was given to the informant over phone regarding the ailment of the deceased even though by that time the deceased had already died. 5. It is contended that false information was given to the informant over phone regarding the ailment of the deceased even though by that time the deceased had already died. 5. Adverting to the contentions raised by the learned counsels for the respective parties, it is not disputed that the marriage of the petitioner with the deceased was solemnized on 12.11.2017 and the deceased died on 15.12.2017 and cause of her death was on account of combined effect of asphyxia and venous congestion resulting from hanging and it was a case of suicidal hanging as per charge sheet. The statements of the witnesses particularly the family members of the deceased indicate that within ten days of marriage, the deceased had to come back to her father's place as she was unable to bear the pain of physical and mental torture which was given to her by the petitioner and other in-laws family members in connection with demand of dowry. There are ample materials on record that the petitioner was taking liquor every night and used to physically assault the deceased. It is said that a good husband makes a good wife and a bad husband creates hell for his wife forgetting promises made before the marriage alter. According to Hinduism, marriage between two souls is a very sacred affair that stretches beyond one lifetime and continues up to seven lives. The bride puts her first step on the doors of her life partner carrying with her sweet dreams and expectation from the new world. When she finds hostile atmosphere in the in-laws house, she feels insecure. She tries to tolerate and sacrifice her expectations but when limit of tolerance reaches its pinnacle and her patience shows no sign of improvement in the situation or in the behaviour of the dowry greedy groom's family, she decides to close her tearing eyes forever. 6. Keeping in view the definition of 'dowry' as per section 2 of the Dowry Prohibition Act, while recording the statements of the witnesses in dowry related offences, it becomes the paramount duty of the investigating officer to elicit from the witnesses about the nature of demand made by the accused, the time period of demand, the fulfillment or otherwise of the demanded articles and also to collect the documents, if any relating to the fulfillment of demand of dowry. The casual manner of recording statements of the witnesses relating to demand of dowry is likely to have a far-reaching consequences in the result of the trial. The family members, close relatives of the bride and the mediator of the marriage are supposed to be aware about the nature of demand. Since presents which are given at the time of a marriage either to the bride or to the bride-groom without any demand having been made in that behalf are excluded from 'dowry' as per section 3(2) of the Dowry Prohibition Act, it is also the duty of the investigating officer to specifically question the relevant witnesses in that respect as to which of the articles given were the presents and which were as per demand. An outsider may believe the presents received by the bride and bridegroom to be 'dowry' and while giving statement before police, it is expected of him to use the word 'dowry' in respect of all the articles received by the bridegroom side. Therefore, a careful approach at the time of investigation is very much necessary not only in the interest of the prosecution but also for a fair trial of the accused and also to arrive at the truth. 7. Mr. Rakesh Kumar Behera, S.I. of Police, Jagatpur police station was present in Court as per the order dated 23.07.2018 with the case records and he fairly submitted that inadvertently while recording statements of the witnesses, he has not asked them regarding the nature of demand made by the petitioner as well as the other in-laws family members of the deceased. Since the statements relating to demand of dowry by the accused persons have been recorded casually, it is expected that during course of further investigation which is under progress, the investigating officer shall reexamine the witnesses particularly on the point of dowry. 8. Since the statements relating to demand of dowry by the accused persons have been recorded casually, it is expected that during course of further investigation which is under progress, the investigating officer shall reexamine the witnesses particularly on the point of dowry. 8. In view of the materials available on record, the nature and gravity of the accusation, the role played by the petitioner in torturing the deceased both physically and mentally, the manner in which a young bride had lost her valuable life at the early stage of marriage, the supporting materials on record relating to the offences under which charge sheet has been submitted, the punishment prescribed for the offences and the chance of tampering with the evidence when the investigation is under progress, I am not inclined to release the petitioner on bail. Accordingly, the bail application filed by the petitioner sans merit and stands dismissed. The learned trial Court shall not be influenced by any observations made in this order as I have not expressed any opinion on the merits of the case. 9. Let a copy of the order be forwarded to the Director General of Police, Odisha in order to intimate the Inspector in charge/Officer in charge of all the police stations of the State of Odisha to keep in mind the observation made in paragraph 6 of this order while recording the statements of the witnesses during investigation in dowry related cases.