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2019 DIGILAW 1240 (GAU)

Kabir Ali v. State of Assam

2019-11-18

RUMI KUMARI PHUKAN

body2019
JUDGMENT : Rumi Kumari Phukan, J. Heard Mr. HRA Choudhury, learned senior counsel assisted by Mr. A. Ahmed, learned counsel for the appellant and Mr. BB. Gogoi, learned Additional Public Prosecutor, Assam for the State as well as Mr. R. Ali, learned counsel for the respondent No.2. 2. Daughter of the informant Nulchan Ali, namely Monwara was given marriage to the accused Kabir Ali, three years back and certain articles were given in the marriage such as furniture, gold ornaments etc. in the marriage and after one year of marriage, her husband demanded Rs.40,000/- and a bike from her but the informant failed to fulfill such demand because of his poor condition for which she was subjected to torture. On 07.07.2015, Monwara died in a suspicious circumstances and on 08.07.2015 an FIR was lodged by the informant that husband of the deceased and in-laws killed Monwara by forcing her to consume insecticide. Based on the FIR, Alogotichar PS Case No.66/2015 u/s 304(B)/34 IPC was registered and investigation was initiated. The deadbody was sent for post-mortem examination and the viscera was sent for chemical examination. On the conclusion of the investigation, charge-sheet was submitted against the husband Kabir Ali, Mohammad Ali, Ashatun Nessa and subsequently, Hazarat Ali and Noor Alom was also added as accused by the court in course of trial under Section 319 Cr.P.C.. 3. All the accused persons faced the trial and denied the charge framed under Section 304(B)/34 IPC and claimed to be tried. In course of trial, prosecution examined 8 witnesses in support of the case and defence also adduced one witness in support of their defence. At the conclusion of the trial, the learned trial court held the accused Kabir Ali guilty under Section 304(B) IPC and sentenced him to suffer rigorous imprisonment for 7 years and rest of the accused persons were acquitted from the charge. Present appeal is preferred against such findings of the learned trial court. 4. The learned senior counsel for the appellant has submitted that the learned trial court has arrived at a fallible decision while concluding that the accused appellant is responsible for the offence while on the same set of evidence the learned court has acquitted rest of the accused persons. The vehement assertion made by the learned senior counsel Mr. 4. The learned senior counsel for the appellant has submitted that the learned trial court has arrived at a fallible decision while concluding that the accused appellant is responsible for the offence while on the same set of evidence the learned court has acquitted rest of the accused persons. The vehement assertion made by the learned senior counsel Mr. Choudhury is that the evidence adduced by the prosecution is wholly unreliable inasmuch as the Investigation Officer has contradicted the evidence of the above witnesses on material aspect as the star witness/PW.1 stated before the I.O. that he arrived at the place of occurrence only after the death of his daughter whereas his evidence is contrary to his earlier statement where he stated that he reached the place of occurrence hearing some shouting and his daughter was found lying on the ground and she reported all about the matter. It is contended that such a sharp contradiction invariably demolished the story projected by the PW.1 and the evidence of rest of the witnesses who were relative of PW.1 lost its credibility while they said that they were reported by PW.1, what have been stated by the deceased to PW.1 prior to her death. 5. In other limb of argument, learned counsel for the appellant submitted that there is dearth of evidence as regards the demand of dowry as well as manner of torture alleged to have inflicted upon the deceased and the alleged demand of dowry which was stated to have made after one year of marriage, which was already settled, have no bearing on the issue of dowry death because same cannot be connected as to the cause of death, to prove one of the vital ingredient of the offence under Section 304(B) IPC that the deceased was subjected to torture "soon before her death". It has been pointed out that the dowry demand was made after one year of the marriage, which was also settled and the deceased died after three years of marriage and there is no specific evidence as regards the conduct of the appellant within two years after the earlier incident. 6. It has been pointed out that the dowry demand was made after one year of the marriage, which was also settled and the deceased died after three years of marriage and there is no specific evidence as regards the conduct of the appellant within two years after the earlier incident. 6. Relying on the decision reported in ( Sukumar Das and another vs. State of Assam, (2018) 4 GauLT 870 ), ( Samad Ali vs. State of Assam and another, (2018) 5 GauLT 537 ), it has been contended that where there is no evidence of torture on dowry demand that deceased was subjected to cruelty soon before her death accused appellant cannot held guilty under Section 304(B) IPC. 7. Learned counsel for the State respondent Mr. Gogoi, and Mr. R. Ali and Mr. AM Khan for respondent No.2 have, however, contended that there is no illegality in the findings of the learned trial court and the evidence adduced by the prosecution is sufficient to sustain conviction of the accused-appellant. It is submitted that the witnesses have stated about holding village meeting for such dowry demand by the accused and few days of village meeting the deceased died and the medical report also supported that the victim died due to consuming insecticide and as the death occurred within 7 years of marriage, in a suspicious circumstance, so the offence under Section 304(B) IPC is made out. 8. Due consideration is given to the rival submission of the learned counsel for both the parties and I have also gone through the evidence on record. 9. To appreciate the argument advanced by the learned counsel for both the parties, appreciation of evidence is necessary: 10. In the entire prosecution, the evidence of PW.1 /informant is crucial, who has stated specifically in his evidence that after one year of marriage accused Kabir Ali at the instigation of other accused (in-laws) demanded a bike and cash of Rs.40,000/- which she told him while she came to her parents' house but he could fulfill the demand due to his poor condition and in this context , a village mel was held and the matter was amicably resolved and she continued her marital life. Although he has stated that accused Kabir Ali and Ashatun Nessa assaulted his daughter with bamboo lathi but it was not specific when she was assaulted either before the settlement or after the settlement. So far as regards the incident he has stated that on that day hearing shouting 'marile marile' (means beaten), he rushed there and found his daughter lying on the ground and upon asking she told that accused Kabir Ali assaulted her with lathi and pour insecticide on her mouth by force while rest of accused persons Ashatun Nessa, Mohammad Ali, Noor Alom and Hazarat assisted him. Thereafter she fell down and they took her to hospital but she expired before reaching the hospital and his house is 10 Bighas (3/4 Km.) away from the residence of the accused. He has denied the suggestion of the defence that he did not made any such statement before police and has not explained the delay in filing the FIR on the next day. 11. The rest of the witnesses PW.2, PW.3 and PW.4 recited the same statement that has been given by PW.1 that there was a village meeting for the dowry demand made by husband, Kabir and it was settled. Their evidence is similar that on the fateful day while they were taking rest in the afternoon in their house, getting the information, that Monwara lying unconscious they went to the house of Kabir and they saw all the accused person present in their house and wife of Kabir, i.e. Monwara who was in a position to talk and answered her father that she was assaulted by the accused person with bamboo lathi and accused Kabir forcefully pour poison on her mouth while all other accused person assisted him by holding her hand. In similar tone that of PW.1, they stated that as Monwara turned unconscious they took her to hospital but on the way she died. All these witnesses have admitted they have given similar statement before police under Section 161 CrPC. 12. Pw.2 to PW.4 denied that they did not made such statement before police as has been stated before the court. They have also stated that their residence is at a distance of 8/10 Bighas from the house of Kabir. PW.2 is the brother of PW.1. 13. 12. Pw.2 to PW.4 denied that they did not made such statement before police as has been stated before the court. They have also stated that their residence is at a distance of 8/10 Bighas from the house of Kabir. PW.2 is the brother of PW.1. 13. Pw.3, in his cross examination denied that he stated before police that 'on the day of incident while he met Kabir, he asked him to go to his house saying that he was going to bring doctor and when he arrived their house he found that number of peoples gathered in the house and heard from them that Monwara has taken poison and women gathered tried to feed her sour and after sometime kabir also arrived and opened her mouth and pour sour while she vomitted which smell medicines, then Kabir and in-laws took her to hospital but on the way she died. On his statement before police he stated that he heard about the occurrence.' 14. The evidence of PW.5 is not supporting the allegation while he stated that he only came to know that wife of Kabir consumed poison and he being adjacent neighbor has stated that their relation was cordial. 15. The medical Officer/ PW.6, who conducted the post-mortem examination of deceased Monwara on 8.7.2015 found the following injuries: "1. A bruise of sized 4" cm X 2 cm is present over lateral aspect of right arm bluish in colour 6 cm above the elbow joint (approximate 3/4 days old). 2. A bruise sized 3 cm X 2 cm bluish in colour is present over lateral aspect of right arm 10 cm above the elbow joint (approximately 3 to 4 days old). 3. A bruise of size 7 cm X 3 cm bluish black in colour is present over back of right side of chest 5 cm away from mid-line and 15 cm below cervical C7 vertebra (approximately 4 to 5 days old). 4. A bruise of size 8 cm X 4 cm bluish in colour is present over front of left side of abdomen 4 cm away from mid-line and 2 cm below the umbilica (approximately 3 to 4 days old). He opined that cause of death kept pending, till receipt of chemical analysis report of viscera from DFSL. Exhibit.1 is the post-mortem report. In cross examination, he stated that bruises can be caused by fall on hard substance. He opined that cause of death kept pending, till receipt of chemical analysis report of viscera from DFSL. Exhibit.1 is the post-mortem report. In cross examination, he stated that bruises can be caused by fall on hard substance. 16. The evidence of PW.8/ another Scientific Officer, DFSL reveals that on examination of viscera, there found presence of insecticide. Exhibit. 5 is the report. 17. The Investigation Officer/ PW.7 in his cross examination has contradicted the statement of PW.1 to PW.4 stating that they did not make any statement before him as has been stated before the court, whereas PW.1 stated before him while he arrived at the house of accused he saw the dead body in the house of the accused and came to know about the occurrence from one of his relative but refused to disclose the name of the person. PW.2 did not stated before him that deceased was in a position to speak about the matter, PW.3 also stated before him that he only heard about the incident and PW.4 told before him that when he reached the house of Kabir, he saw Monwara lying dead in the courtyard. 18. Let us also examine the evidence of DW.1 examined by defence who has deposed that he being neighbor knows that relation between Kabir and Monwara was cordial and he never saw Kabir and others accused persons harassing Monwara demanding dowry etc. Further, the accused Hazarat and Noor Alom resided at a distance of 5 Km from the house of Kabir and they were not seen at the place of occurrence. He heard that Monwara died by consuming insecticide and there was no any village meeting regarding death of Monwara. 19. On careful examination of entire matters on record, it is discernible that except the allegation of some dowry demand, after one year of marriage, which was also settled immediately, there is no other evidence as regards the manner of torture, day and time etc. regarding such torture which may amount to cruelty. Except using the word, 'torture' none of the witnesses has been able to spell out the conduct of the accused-appellant in the entire marital life of 3 years. As per allegation, the incident of the dowry demand was made after 1 year of marriage and thereafter, no any specific incident has been narrated regarding the rest of two years period. Except using the word, 'torture' none of the witnesses has been able to spell out the conduct of the accused-appellant in the entire marital life of 3 years. As per allegation, the incident of the dowry demand was made after 1 year of marriage and thereafter, no any specific incident has been narrated regarding the rest of two years period. No any witness has been examined as to where such meeting was held to settle the matter of dowry demand. Situated thus, it can be held that there is no specific evidence that the victim was subjected to cruelty "soon before her death". 20. Finding of insecticide may also raise the doubt of suicide but that does not itself established that the deceased died because of dowry death. Post-mortem examination indicates certain bruises which is not vital in nature to disclose that the victim was subjected to cruelty within the purview of law. 21. The prosecution substantially relied upon the evidence of PW.1 which was again corroborated by PW.2 to PW.4. But as has been discussed above, I.O. has contradicted their entire evidence that they never stated before him as has been stated by them during the course of trial. Admittedly, PW.1 told before him that he arrived at the place of occurrence after the death of Monwara and the PW.2 to PW.4 have also stated before him that they only heard about the matter that the victim consumed poison and it was the accused persons who provided some medical treatment to Monwara and thereafter she was taken to the hospital by them but on the way she died. Such a contradictory statement of all the witnesses has vigorously shaken the authenticity of their testimony because such contradiction goes to the root of the matter and same is not minor omission as has been held by the learned trial court. The court of law is to appreciate the evidence in touchstone of the authenticity and the genuineness of the evidence so as to assess the credibility of the witnesses to accept in evidence as true version of the occurrence. The court of law is to appreciate the evidence in touchstone of the authenticity and the genuineness of the evidence so as to assess the credibility of the witnesses to accept in evidence as true version of the occurrence. In order to accept the evidence, the same is to be wholly reliable and trustworthy but in the instant case, the witnesses of PW.1 to Pw.4 who have not only exaggerated their versions but has developed a new story during the course of trial, contrary to their earlier statement that has been made at the time of investigation, and hence their evidence cannot inspire confidence as regards their authenticity. The court should be cautious while appreciating the evidence from all aspects. 22. In the given case, learned trial court has wholly placed reliance upon the evidence of PW.1 and PW.2 to PW.4 but has failed to appreciate that no such statement was given by them before the I.O. immediately after the occurrence. The investigation officer has contradicted their evidence on vital aspects and such material contradictions demolish the entire prosecution story. It is abundantly clear that the witnesses arrived at the place of occurrence after the death of Monwara. Again, the PW.1 arrived after the death of deceased than where is the scope of revealing such fact by deceased and consequently reporting of such incident by Pw.1 to other witnesses, which has made their evidence wholly unreliable. 23. In the instant case, there being no other evidence regarding any assault, torture etc. on the deceased on the day of occurrence or about pouring insecticide forcefully upon the deceased, the evidence of medical officer is inconsequential. Even if, simple matter of assault upon a victim, is not enough to bring it within the purview of cruelty unless there specific evidence on record regarding the manner of assault and intact thereof. Reliance of the learned trial court upon such inconsistent and untruthful evidence on record appears to be not proper. The court has to decide the case on the basis of evidence adduce by prosecution but not on lacuna of defence and cannot draw a conclusion in absence of plausible answer by the defence under Section 313 CrPC, as has been held by the trial court. The court has to decide the case on the basis of evidence adduce by prosecution but not on lacuna of defence and cannot draw a conclusion in absence of plausible answer by the defence under Section 313 CrPC, as has been held by the trial court. On the other hand, on the same set of evidence, the trial held only one of the accused guilty and has acquitted rest of the accused persons which is another infirmity in the findings of the trial court. 24. In the context, we may refer to various decisions of the Apex Court on the matter of dowry death. In ( Amar Singh vs. State of Rajasthan, (2010) AIR SC 3391 ), it has been held that using of word 'harass' or 'torture' by witnesses without describing exact conduct of the accused will not amount the offence under Section 498(A) and 304(B) IPC and further held that the presumption under Section 113 of evidence Act can be raised on the proof of four essential ingredients that the woman was subjected to cruelty, by her husband and relatives in connection with demand of dowry, soon before her death. In Mustafa Shahabal vs. State of Maharastra, (2012) 11 SCC 397 it has been held that all above essential ingredients must be proved by reliable and acceptable evidence in order to convict an accused under Section 304(B) IPC. So far as the words 'soon before her death', there must be proximate and live link between the effect of cruelty based on dowry demand and the death concerned. 25. Similarly, in Gurdeep Singh vs. State of Punjab, (2013) 10 SCC 39 5) has dealt with the words 'shall be presumed' in Section 304(B) IPC and held that the same being a mandatory presumption and the conduct of an accused under Section 304(B) IPC, it is for the prosecution to 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 Evidence Act. It said, once all ingredients are present, the presumption of innocence fed away. 26. It said, once all ingredients are present, the presumption of innocence fed away. 26. In ( Bharat Bhushan and another vs. State of Madhya Pradesh, (2014) 13 SCC 525 ), the Hon'ble Supreme Court held that criminal liability under Section 304-B IPC is attracted not just by demand of dowry but by act of cruelty or harassment by husband or any relative of her husband in connection with such demand. Unless such an act of cruelty of harassment is proved to have been caused by accused husband or relative to deceased soon before her death in connection with the demand of dowry, accused cannot be held to be liable under Section 304-B IPC. 27. Similarly in ( Baijnath and others vs. State of Madhya Pradesh, (2017) 1 SCC 101 ), Hon'ble Supreme Court has been elaborately discussed the provisions of Section 304(B) / 498(A) IPC read with Section 113 B of Evidence Act and held that the factum of unnatural death in the matrimonial home and that too within seven years of marriage therefore is thus ipso facto not sufficient to bring home the charge under Section 304(B) and 498(A) of the Code against them. The predicament of the prosecution is compounded further by its failure to prove, the precise cause of the death of the deceased. It is not clear as to whether the death was suicidal or homicidal or the origin and cause of the external injuries. Though the obscurity of the causative factors is due to the putrefaction of the body, the benefit of the deficiency in proof, logically would be available to the persons charged. The appellants are entitled to benefit of doubt. 28. Again, in ( State of Haryana vs. Angoori Devi and others, (2019) AIR SC 3647 ) the Hon'ble Apex Court reiterated the same proposition and held - it is true that the victim died of burns. The death was otherwise than under normal circumstances and within 7 years of marriage. However, to attract Section 304B of the IPC, the prosecution has to establish that soon before the death the deceased was subjected to cruelty and harassment in connection with demand for dowry. 29. This Court has reiterated the aforesaid principles in the judgments reported in Sukumar Das (supra) and Samad Ali (supra). 30. However, to attract Section 304B of the IPC, the prosecution has to establish that soon before the death the deceased was subjected to cruelty and harassment in connection with demand for dowry. 29. This Court has reiterated the aforesaid principles in the judgments reported in Sukumar Das (supra) and Samad Ali (supra). 30. In the backdrop of the present case and in the light of legal propositions set forth by the Apex Court, it can be found that the prosecution in the present case has failed to prove beyond all reasonable doubt that cruelty or harassment meted out to the deceased for dowry demand soon before her death. Earlier demand for money was already settled. Presumption under Section 113 B of Evidence Act cannot be drawn and the necessary ingredient of the offence that the deceased was subjected to cruelty and harassment soon before her death on demand of dowry under Section 304(B) IPC is not proved. 31. Resultantly, appeal is allowed and the impugned judgment and order is hereby set aside and the accused person is acquitted on benefit of doubt and set at liberty forthwith. 32. Return the LCR.