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2021 DIGILAW 265 (JHR)

Sanu Sk. S/o Riyazuddin Sk. v. State of Jharkhand

2021-03-02

RATNAKER BHENGRA, SHREE CHANDRASHEKHAR

body2021
JUDGMENT : SHREE CHANDRASHEKHAR, J. 1. Radhanagar P.S. Case No. 108 of 2011 was lodged against Sanu Sk. Riyazuddin Sk. and Rokesha Bibi @ Kuresha Bibi for committing dowry death of Alehar Bibi. The informant of this case is uncle of Alehar Bibi who was residing in the same village. In his fardbeyan which was recorded on 18.05.2011 at 06:45 AM at village Chandshahar, the informant has stated that after the marriage Alehar Bibi was happy in her matrimonial home but after sometime Sanu Sk. Riyazuddin Sk. and Rokesha Bibi started harassing and inflicting various acts of torture upon her in connection to demand of dowry. He has further stated that about two years back he gave a box of Rs. 800/- to Alehar Bibi and her father gave gold ornaments. However, after sometime her husband and in-laws again started demanding Rs. 25,000/- and other household articles and threatened to kill her. The informant has made several other allegations about harassment and torture of his niece at the hands of the accused, but in course of the investigation neighbors of the accused gave a different picture of the incident. They have stated in their statements under section 161 of the Code of Criminal Procedure that on 17.05.2011 when they heard hulla and went inside the house of the accused they found Alehar Bibi hanging from a bamboo. They thought that she was still alive and helped her body bringing down on the floor but then they found that she had died. The doctor who has conducted the postmortem examination has found multiple bruise marks on the chest, back, thigh and face of Alehar Bibi. He has also observed irregular and ill-defined black bruise around neck of Alehar Bibi and in his opinion cause of death was cardio-respiratory failure arising from asphyxia due to throttling and ligating over the neck. After the investigation a charge-sheet was submitted against the accused and they have faced the trial on the charges under section 304-B/34 and section 498A of the Indian Penal Code. 2. The prosecution has examined eleven witnesses in course of trial, out of whom PW-1 Mostaque Sk. PW-6 Naswara Bibi, PW-7 Sakir Sk. and PW-10 Mokhtar Sk. are closely and intimately related to Alehar Bibi. 2. The prosecution has examined eleven witnesses in course of trial, out of whom PW-1 Mostaque Sk. PW-6 Naswara Bibi, PW-7 Sakir Sk. and PW-10 Mokhtar Sk. are closely and intimately related to Alehar Bibi. The Investigating Officer who was examined as PW-11 would admit in his cross-examination that the independent witnesses had stated before him that Alehar Bibi who was issueless was being treated for infertility and they do not know any dispute between Sanu Sk. and his wife or any demand of dowry by Sanu Sk. and his parents. The learned District and Additional Sessions Judge-I, Rajmahal has held that from the prosecution evidence it is proved that soon before her death Alehar Bibi was subjected to cruelty in connection to demand of dowry; Alehar Bibi died homicidal death in her matrimonial house within seven years of her marriage and therefore in view of section 113-B of the Indian Evidence Act the Court shall presume that the accused have committed dowry death. 3. In S.C. No. 285 of 2011, the learned trial Judge has convicted and sentenced the appellants to undergo RI for life under section 304-B/34 of the Indian Penal Code. 4. Mr. Jai Shankar Tripathi, the learned counsel for the appellants would assail the judgment in S.C. No. 285 of 2011 on the ground that no witness has stated that soon before her death Alehar Bibi was subjected to harassment and torture at the hands of her husband or any other member of his family. It is contended that the prosecution evidence on demand of dowry, harassment and torture of Alehar Bibi is quite discrepant and the evidence of related witnesses is liable to be discarded for the reason that the independent witnesses have flatly denied that Alehar Bibi was harassed and tortured by the accused in connection to demand of dowry. 5. The offence of dowry death which was incorporated in the Indian Penal Code by Act 43 of 1986 requires that before a presumption is raised against the accused the prosecution must lay evidence during the trial to prove that (i) death occurred within 7 years of marriage, (ii) death occurred otherwise than under normal circumstance and (iii) soon before her death the woman was subjected to cruelty or harassment by her husband or any relative of the husband for or in connection with demand of dowry. Along with incorporation of section 304-B in the Indian Penal Code there was a corresponding- amendment in the Indian Evidence Act to incorporate section 113-B. A conjoint reading of the provisions under section 304-B of the Indian Penal Code and section 113-B of the Indian Evidence Act reveals a common point that “soon before her death a woman was subjected to cruelty or harassment for or in connection with any demand for dowry.” The expression soon before the death is not defined in the statutes and as observed by the Hon'ble Supreme Court no strait jacket formula can be evolved for arriving at a conclusion whether soon before her death a woman was subjected to harassment and torture in connection to demand of dowry. 6. In Baijnath and Others vs. State of Madhya Pradesh, (2017) 1 SCC 101 the Hon'ble Supreme Court has dealt with the “presumption” under section 113-B of the Evidence Act and “proof of cruelty or harassment” thus: “29. Noticeably this presumption as well is founded on the proof of cruelty or harassment of the woman dead for or in connection with any demand for dowry by the person charged with the offence. The presumption as to dowry death thus would get activated only upon the proof of the fact that the deceased lady had been subjected to cruelty or harassment for or in connection with any demand for dowry by the accused and that too in the reasonable contiguity of death. Such a proof is thus the legislatively mandated prerequisite to invoke the otherwise statutorily ordained presumption of commission of the offence of dowry death by the person charged therewith. 30. A conjoint reading of these three provisions, thus predicate the burden of the prosecution to unassailably substantiate the ingredients of the two offences by direct and convincing evidence so as to avail the presumption engrafted in Section 113-B of the Act against the accused. Proof of cruelty or harassment by the husband or her relative or the person charged is thus the sine qua non to inspirit the statutory presumption, to draw the person charged within the coils thereof. If the prosecution fails to demonstrate by cogent, coherent and persuasive evidence to prove such fact, the person accused of either of the abovereferred offences cannot be held guilty by taking refuge only of the presumption to cover up the shortfall in proof.” 7. If the prosecution fails to demonstrate by cogent, coherent and persuasive evidence to prove such fact, the person accused of either of the abovereferred offences cannot be held guilty by taking refuge only of the presumption to cover up the shortfall in proof.” 7. The prosecution has laid evidence through PW-1, PW-6, PW-7 and PW-10 to establish the facts in relation to demand of dowry and harassment and torture of Alehar Bibi. PW-1 and PW-10 are uncles and PW-6 and PW-7 are parents of Alehar Bibi. They all were residents of Chandshahar. PW-6 and PW-7 have admitted in the Court that at the time when their daughter was found dead they were at Allahabad. Sanu Sk. and the father of Alehar Bibi were Rikshaw pullers earning their livelihood at Allahabad and after the marriage Sanu Sk. came to stay at his native village. In the fardbeyan, there is specific allegation about satisfying the demands of dowry of the accused and PW-1 and PW-10 have reiterated the allegations of demand of dowry in the Court. However, a glance at the testimony of these witnesses in their cross-examination creates serious doubts on credibility of these witnesses. PW-1 has stated that he did not participate in the marriage of his niece and later on he came to know that she was married to a boy of Chandshahar. He himself is a resident of Chandshahar who has admitted in the cross-examination that any demand was not made in his presence nor has he seen any incident of marpit with his niece. PW-10, the informant, who was specific in his fardbeyan that demands of dowry of the accused were fulfilled, has stated in the Court that due to non fulfillment of demand of sofa-set, almirah and Rs. 25,000/- the accused committed murder of Alehar Bibi. He has further stated that when his niece came home she would tell him her miseries. In the Court, he has failed to remember the date of marriage of his niece and admitted that he did not participate in the marriage of his niece. He has admitted that when his nephew met with an accident he did not visit his brother at Allahabad. In his cross-examination, he has also stated that after the marriage Sanu Sk. would go to Allahabad to earn livelihood. He has admitted that when his nephew met with an accident he did not visit his brother at Allahabad. In his cross-examination, he has also stated that after the marriage Sanu Sk. would go to Allahabad to earn livelihood. He would further admits that he did not tell anybody about demand of a sofa-set, almirah and Rs. 25,000/- by the accused. About giving a box of Rs. 800/- to the accused, he has admitted that he spoke about this after death of his niece. From the testimony of PW-1 and PW-10, we find that there are serious inconsistencies in their evidence and their statements in the cross-examination raise questions about their credibility and when looked at the testimony of the Investigating Officer we find that these witnesses have substantially improved their version in the Court. The Investigating Officer has admitted in the cross-examination that about demand of dowry, harassment and torture of Alehar Bibi the witnesses who were closely related to her did not make any statement before him. 8. In Dr. Sunil Kumar Sambhudayal Gupta vs. State of Maharashtra, (2010) 13 SCC 657 the Hon'ble Supreme Court has observed as under: “33. In case, the complainant in the FIR or the witness in his statement under Section 161 Cr.P.C. has not disclosed certain facts but meets the prosecution case first time before the court, such version lacks credence and is liable to be discarded.” 9. In our opinion, PW-1 and PW-10 are not reliable and trustworthy witnesses. There is another reason for not placing reliance upon their testimony. PW-6 who is the mother of Alehar Bibi has stated in the Court that she does not know whether her statement was taken by the police. About demand of sofa-set and Rs. 25,000/- she has admitted that she was making such allegations for the first time in the Court. She has further admitted that for the first time in the Court she was stating about her brother-in-law fulfilling the demands of the accused. The father of Alehar Bibi has gone one step ahead and tells the Court that his son-in-law and his daughter both liked each other his son-in-law visited him at Allahabad and stayed there for 7-8 days after his son met with an accident. The father of Alehar Bibi has gone one step ahead and tells the Court that his son-in-law and his daughter both liked each other his son-in-law visited him at Allahabad and stayed there for 7-8 days after his son met with an accident. Furthermore, from the testimony of PW-6 and PW-7 or for that matter PW-1 and PW-10, we find that these witnesses have not stated anything about when last the demand of dowry was made by the accused. 10. The evidences tendered by PW-1, PW-6, PW-7 and PW-10 are inconsistent, unnatural and highly superficial - contain more chaff than grain. In our opinion, these witnesses are not trustworthy and their evidence is liable to be discarded. 11. The testimony of the independent witnesses does not support the prosecution and it is not its case that they have resiled from their statements made before the police. The Investigating Officer has admitted in his cross-examination that the independent witnesses did not support the allegations of demand of dowry and harassment and torture of Alehar Bibi. PW-2, PW-3, PW-4, PW-5 and PW-8 who are the neighbors of Sanu Sk. were not declared hostile during the trial and their evidence in the Court is m sharp contradiction to the prosecution's own case. 12. In Kamesh Panjiyar alias Kamlesh Panjiyar vs. State of Bihar, (2005) 2 SCC 388 the Hon'ble Supreme Court has observed as under: “11. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. “Soon before” is relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression “soon before her death” used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression “soon before” is not defined. The expression “soon before her death” used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression “soon before” is not defined. A reference to the expression “soon before” used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a court may presume that a man who is in the possession of goods soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term “soon before” is left to be determined by the courts, 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 cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effects of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.” 13. From the above discussions, it clearly emerges that one of the ingredients for constituting the offence under section 304-B of the Indian Penal Code is not established in this case. 14. The medical evidence is also not in tune with the prosecution case. 15. PW-9, Dr. Md. Alimuddin Ansari who has conducted the postmortem examination has observed the following injuries on the dead-body of Alehar Bibi: “(A) Ante-mortem: (i) Multiple ill-defined bruise over body like chest, back, both thigh and face. (ii) Face is black and engorged. (iii) Tongue mildly protruded and saliva coming out and between tongue and teeth. (iv) irregular and ill-defined about 1/2” or more or less wide black spot-bruise, over and around whole neck region and left lateral temporal bone below near pinna, more wide mark which indicate ligature mark. Multiple nail and finger spot over face and chest.” 16. In his cross-examination, the doctor has stated that in case of strangulation the ligature mark would be horizontal. Multiple nail and finger spot over face and chest.” 16. In his cross-examination, the doctor has stated that in case of strangulation the ligature mark would be horizontal. It is well accepted in medical jurisprudence that death by strangulation can happen in two ways; strangulation by ligature or by pressure on the neck through fingers. In the Textbook of Medical Jurisprudence and Toxicology by Modi, 26th Edition, at Page 516, it is observed that if fingers are used (throttling) marks of pressure by the thumb and the fingertips are usually found on either side of the windpipe. It is further stated that in homicidal strangulation ligature mark would be horizontal or transverse, continuous, round the neck and low down the neck below the thyroid. The observations of PW-9 that there were irregular and ill-defined black spot and bruises over and around whole neck region are not the characteristics of manual strangulation. Parikh's Textbook of Medical Jurisprudence Forensic Medicine and Toxicology, Sixth Edition, also refers to ligature marks which usually would encircle neck horizontally below thyroid cartilage. In his cross-examination, the doctor has admitted that in case of hanging external signs of asphyxia would not usually be well marked, as found over the neck of Alehar Bibi. He has also admitted that in case of strangulation ligature mark will be horizontal whereas in case of hanging that would be oblique/non-continuous, as was observed by him over the neck of Alehar Bibi. It seems that the doctor has finally conceded that death of Alehar Bibi was not caused due to strangulation rather it was a case of hanging. The absence of the characteristic marks of a homicidal death by strangulation (by rope) on the dead-body of Alehar Bibi clearly show that it was a case of suicidal hanging. The neighbors of Sanu Sk. who were examined during the trial have also tendered evidence which probabilises the defence set up by the accused that Alehar Bibi had committed suicide by hanging. 17. We further find that the circumstances under which the First Information Report came to be recorded are suspicious. According to the uncles of the deceased they heard hulla in the village around 05:00 PM. However, no information about the death of Alehar Bibi was given to the police the same evening. 17. We further find that the circumstances under which the First Information Report came to be recorded are suspicious. According to the uncles of the deceased they heard hulla in the village around 05:00 PM. However, no information about the death of Alehar Bibi was given to the police the same evening. The Investigating Officer has stated in the Court that at about 05:00 AM in the morning on 18.05.2011 he received an information in the police station and fardbeyan of the informant was recorded at 06.45 AM. On the contrary, PW-10 has stated that Mukhiya Aro Bibi had informed the police by telephone but the police came around 7:00-7:30 in the morning - Mukhiya was not examined in the trial. In these facts, the learned APP has argued that there was no delay in registration of the First Information Report but we would not agree with him on this point because whether the delay has occasioned in concoction and fabrication of a false case is always a matter which can be decided on the facts and circumstances of the case. While delay of few days may not be fatal and can be explained by the prosecution, delay of few hours may raise a doubt on veracity of the prosecution case. The informant was a resident of the same village and he says that immediately on hearing hulla he had gone to the matrimonial house of Alehar Bibi. Keeping in mind that the related witnesses have substantially improved their case in the Court and the informant has failed to withstand the test of cross-examination at least on the demand of dowry and harassment and torture of Alehar Bibi, we think that after due deliberations and perhaps out of suspicion the appellants were implicated in this case. 18. The learned trial Judge was conscious that the case set up by the prosecution was based on circumstantial evidence. In paragraph no. 14 of the judgment under challenge, the learned trial Judge has referred to the following circumstances combined effect of which in his opinion was a conclusive finding that the accused have committed dowry death of Alehar Bibi: (i) there was demand of dowry by the accused (ii) Alehar Bibi was tortured on account of non fulfillment of the dowry demands (iii) Alehar Bibi has died a homicidal death and (iv) her dead-body was found lying in her matrimonial home. 19. 19. The learned trial Judge has observed as under: “14. Here, it would be proper to mention that this case is based on the circumstance, as there is no eye-witness of the case but under what circumstances. I have been compelled by law to convict the accused persons and the circumstances are follows: (i) By the statement of PW-1 Mukhtar Sk. and PW-6 Naswara Bibi, PW-7 Sakir Sk. And PW-10 Mokhtar Sk. they are father, mother and uncle of the deceased Alehar Bibi and they have adduced the linked evidence. They have stated it that Alehar Bibi was married with accused Sanu Sk. and demand of dowry was being made by the accused persons and for that the deceased was being tortured. (ii) PW-2 Rajiv Sk, PW-3 Kalachand Sk, PW-4 Wasim Sk. and PW-5 Jalu Sk. and PW-8 Mujahir Sk have clearly stated it that they have seen the dead-body of deceased which was lying in the house of accused Sanu Sk. thus, they have also adduced the linked evidence regarding recovery of the dead-body from the house of the accused persons. The PW-9 who is Dr. Md. Alimiddin who has conducted autopsy on the body of deceased Alehar Bibi and the fate of the case is based on the sole testimony of this witness and this witness has clearly stated in his statement that multiple ill-defined bruise was found over the body and the tongue was protated mildy and there was black spot around the whole neck region and multiple nail and finger spot was found over the face and chest. As per statement of this witness, he has expressed his opinion for cause of death is C.R. Failure and secondary to asphyxia due to throat ling and ligating over the neck. Thus, by perusal of the statement of this witness, it is clear that the deceased Alhar Bibi was murdered.” 20. In a case based on circumstantial evidence, the prosecution must establish the incriminating circumstances by leading cogent and consistent evidence. It is also a duty of the prosecution to establish that the circumstances proved against an accused lead to an irresistible conclusion that it was the accused and accused alone who has committed murder and no other hypothesis consistent with the innocence of the accused can be inferred. 21. It is also a duty of the prosecution to establish that the circumstances proved against an accused lead to an irresistible conclusion that it was the accused and accused alone who has committed murder and no other hypothesis consistent with the innocence of the accused can be inferred. 21. In State of Goa vs. Sanjay Thakran, (2007) 3 SCC 755 the Hon'ble Supreme Court has observed as under: “13.....it is a well-settled proposition of law that when the case rests upon circumstantial evidence, such evidence must satisfy the following tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused. (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” 22. The learned trial Judge has recorded a finding on the nature of death of Alehar Bibi - homicidal death, which is contrary to the evidence tendered by the medical man. A death by hanging would no doubt be an unnatural death but in absence of any evidence that the death was a direct consequence of harassment and torture to Alehar Bibi in connection to demand of dowry soon before her death, this circumstance is not sufficient to hold the accused guilty under section 304-B of the Indian Penal Code. 23. In view of the aforesaid discussions, we hold that the prosecution has failed to produce cogent and consistent evidence to prove facts which would constitute the essential ingredients for the offence under section 304-B of the Indian Penal Code. The appreciation of evidence of the prosecution witnesses by the learned trial Judge was superficial and wholly unsatisfactory and finally the learned trial Judge has arrived at a wrong conclusion on a wrong premise that Alehar Bibi was murdered in her matrimonial home. 24. The appreciation of evidence of the prosecution witnesses by the learned trial Judge was superficial and wholly unsatisfactory and finally the learned trial Judge has arrived at a wrong conclusion on a wrong premise that Alehar Bibi was murdered in her matrimonial home. 24. For the aforesaid reason, we hold that the judgment of conviction of the appellants under section 304-B of the Indian Penal Code in S.C. No. 285 of 2011 is unsustainable and it is accordingly set-aside. 25. Mr. Bhola Nath Ojha, the learned APP states that the appellant, namely, Sanu Sk. who has served the sentence for more than eleven years ten months, with remission, is in custody while the appellants, namely, Riyazuddin Sk. and Rokesha Bibi @ Kuresha Bibi are on bail. 26. Accordingly, the appellant, namely, Sanu Sk. shall be set free forthwith, if not wanted in connection to any other case. 27. The appellants, namely, Riyazuddin Sk. and Rokesha Bibi @ Kuresha Bibi who are on bail are discharged of liability of the bail bonds furnished by them. 28. In the result, Criminal Appeal (DB) No. 542 of 2014 and Criminal Appeal (DB) No. 478 of 2014 are allowed. 29. Let lower Court records be transmitted to the Court concerned, forthwith. 30. Let a copy of the Judgment be transmitted to the Court concerned through FAX.