High Court · 2012

5. well as Mr. S. Das, learned Addl. Public Prosecutor, Assam. We have heard Mr. A. Alam, learned counsel for the accysed-appellant as

6. Learned counsel for the appellant strenuously submitted that the prosecu tion has failed to establish any physical torture on the person of the deceased before her death; therefore, the accused appellant deserves to be acquitted of t he charges framed against him. Learned counsel for the appellant further pointed out that as per the sc heme of the penal provision, the appellant, who was barely 25 years of age, ough t to have been sentenced to undergo imprisonment for lesser duration and therefo re, the punishment imposed on the accused appellant under Section 304 B IPC, des erves to be modified.

7. we would like to discuss the core of the prosecution evidence. To appreciate the submissions made on behalf of the respective parties, PW1, Md Abdul Sattar deposed that, more often than not, accused sent Sof 8. ia Khatun to her paternal home to bring money and when she failed, she was beate n up. On the fateful day also, according to this witness, accused came to his ho use and demanded Rs 1000/- and he was given a sum of Rs 400/-. Immediately there after, the witness was informed by the brother of accused that Sofia consumed po ison. PW1, lodged the FIR (Exbt-1) in the police station.

9. PW2, Sahajuddin Ahmed deposed that despite giving money, tin, cow, cot, beddings, etc. on demand, they could not satisfy the accused as his demands went on increasing with each passing day. According to this witness, on the day of o ccurrence, he was informed by the brother of the accused that Sofia took poison, and she was immediately taken to hospital at around 7 PM.

10. PW3, Asad Ali deposed that when the S.D.C. visited Kharupetia Hospital f or inquest of the dead body of Sofia Khatun, he was present there at and signed the inquest report as a witness.

11. PW4, Md Sayed Ali, who is the father of the poor victim and father-in-la w of the accused, deposed that though he is very poor eking out a living by pull ing thela (pushcart), he gave quilt, cot, beddings, tables, chair etc. as dowry to his son-in-law in the marriage. Later on, one bundle of tin and a bicycle wer e given to the accused and lastly a sum of Rs 1000/- and after about a month the refrom, he heard that his daughter died by consuming poison.

12. PW5, Saifuddin Ahmed deposed that Sofia used to come to his house and di sclose the problems she had been facing. According to this witness, accused had started torturing Sofia almost a month after their marriage.

13. PW6, Smti Ashia Khatun, who is the mother of the deceased deposed that, on the day occurrence, accused came to their house and told her 9 years old son that his sister died after consuming poison. Immediate thereafter, the witness c ame out with screaming and saw her son-in-law going away riding a bicycle. Immed iately, the witness rushed to Kharupetia Hospital and found the dead body of her daughter with injury marks on her back. According to PW6, after the marriage, her daughter (i.e. the victim) was regularly beaten up by accused husband , demanding money, house, tin, bicycle, etc. however, though to the best of their capacity, they provided various arti cles from time to time and lastly, a cash amount was given her husband, so that the victim daughter can lead a peaceful conjugal life. According to PW-6, dowry was the only feature that caused the death of her daughter.

14. PW7, Md Alibur Rahman, deposed that as the in-charge of Kharupetia polic e outpost, on receipt of a written ejahar filed by Abdul Sattar, he registered a case, visited the house of the deceased, helped to perform inquest on the dead body by a Magistrate, sent the dead body to Mangaldai Civil Hospital, for a post -mortem examination recorded statements of the witnesses, arrested and forwarded the accused to the Court.

15. d, opined as follows: PW8, Dr. Bhabani Prasad Khound, who performed post-mortem on the decease (cid:28)On careful examination no any injury marks found on her person. Pleurae congest ed. Peritonoum Healthy and congested. Both lungs congested. Her right heart empt y. The following visceras were preserved for chemical analysis and handed over t o the escorting constable. (i) (ii) (iii) No cause of death could be ascertained and hence, the above specimens are preser ved and sent for chemical Examination (cid:29). Stomach with its contents. One entire kidney Part of liver.

16. Therefore, apparently from the evidence of the doctor, PW.8, who carried out the post mortem examination of the victim, it appears that the death of the young woman, Safia, was caused or occurred otherwise than under normal circumst ances.

17. PW11, Sri Padmaram Saikia, who was the incharge of Kharupetia Police Out post, deposed that on receipt of the FIR, as directed by the Officer-in-Charge o f Dalgaon police station, he handed over the case to ASI Alibur Rahman for preli minary investigation. According to PW11, ASI, Alibur Rahman took up preliminary steps in the case and subsequently PW11 took up the investigation. PW11 also sta ted that the viscera of the dead body were forwarded by him to the Forensic Labo ratory, Kahilipara, Guwahati for chemical examination. PW11 stated that the repo rt of the Forensic expert Ext-4 was received from the Forensic Laboratory. The r eport, Ext-4 revealed that the victim died of poisoning.

18. What appeals us most conspicuously is the evidence of Md. Sayed Ali, PW4 father of the deceased. He implicated the accused for demanding dowry like bicy cle, C.I. Sheet, as well as, cash amount. PW4 revealed that once the accused sen t his daughter to him for C.I. Sheet and bicycle and one week thereafter the dem and was met through his deceased daughter. He paid an amount of Rs.1000/- being the cost of bicycle and C.I. Sheet. However, the amount being too small the accu sed assaulted the victim and thus compelled her to commit suicide. According to PW-4 his daughter, that is, victim Sofia came to him three months prior to the i ncident and disclosed that the accused demanded bicycle and also showed him the injuries she had sustained on her back, committed by the accused. The deceased d uring her life time reported to (PW-4) that if he defaulted in payment of money, she would be further subjected to torture by the accused.

19. The oral testimony of the father (PW4) finds assurance in the evidence o f the mother of the victim Asia Khatoon (PW6), who also implicated the accused f or demanding money, landed property, C.I. Sheet, bicycle etc. as dowry. They bei ng poor could not meet the illegal demand, however, her husband, PW4 gave Rs.1,0 00/- to the accused on one occasion and in another occasion PW-6 herself gave ca sh amount to the accused. She implicated the accused for torturing her daughter Sofia, for they could not meet the demand of dowry.

20. Md. Abdus Sattar (PW1), who submitted FIR deposed that Sofia also report ed him, during her life time that the accused used to demand dowry from her and on her failure to bring money from parents the accused used to torture her physi cally. On one occasion the accused took Rs.400/- from the PW1, as the latter hap pened to be the maternal uncle of the deceased. One Sahajuddin was present at th at time. On perusal of the evidence of Sahajuddin (PW2) it appears that he corro borated the testimony of PW1, as regards the payment of Rs.400/- to the accused. During cross-examination, he further confirmed that in one occasion the accused demanded cash amount, landed property as dowry in their house. Asad Ali (PW3) l aid the inquest report into evidence as Ext-2 and proved his signature thereon a s Ext-2(2). Saifuddin Ahmed (PW5) is the uncle of the deceased. He implicated th e accused for demanding dowry immediately after one month of the marriage. He al so authenticated the inquest report into evidence vide his signature Ext-2(3). The learned counsel for the accused appellant submitted that merely on t 21. he basis of the prosecution allegation that the death had occurred within seven years of the marriage, without even proving the preliminary fact, the accused ca nnot be convicted either under Section 304-B IPC or under Section 498-A IPC. Le arned counsel for the appellant submitted that the essential ingredients of Sect ion 304-B, viz. (cid:28)demand of dowry (cid:29), could not be established by the prosecution a nd hence, the accused-appellant cannot be convicted for the offence under Sectio n 304-B IPC.

22. As a matter of fact for proving an offence under Section 304-B of the IP C the prosecution has to prove the following facts, to draw a presumption that t he accused had committed the dowry death. The death of the married woman within seven years of the marriage which (a) occurred otherwise than under normal circumstances. (b) and of dowry, subjected the victim to cruelty or harassment. A little prior to the death her husband or relative, on the point of dem If the accused wants to escape from the said catch the burden is on him to dispr ove it. However, if the accused fails to rebut the presumption the Court is boun d to act on it (See Shamn Saheb Multani Vs. State of Karnataka (AIR 2001 SC 921) ). Section 113B of the Indian Evidence Act, refers to the offence under Sec 23. tion 304-B IPC will operate if the prosecution is able to establish circumstance s set out in Section 304-B IPC. A conjoint reading of Section 113B of the Indian Evidence Act and 304-B of the IPC shows that there must be material to show tha t soon before her death the victim was subjected to cruelty or harassment. The p rosecution has to rule out the possibility of a natural or accidental death so a s to bring it within the purview of death occurred otherwise than in normal circ umstances.

24. On careful scrutiny of the statement of the prosecution witnesses, it is seen that the witnesses have passed the gruelling test of cross-examination. De ath of the deceased within seven years of marriage is not disputed unfortunately . According to PW5, the deceased hardly spent 8/9 months of married life, which is not disputed by the accused. Regarding the demand of dowry and harassment o r cruelty in this connection by the accused has been vouchsafed by almost all th e material witnesses. We find that the evidence inspire confidence in respect of the alleged torture let loose on the deceased prior to her death for not meetin g the demand of dowry and, therefore, the arguments advanced by the learned coun sel in this regard is not attracted. From the above discussion, we find willful conduct of the accused, was o 25. f such nature as likely to drive Sofia (victim) to commit suicide, as she could not meet the unlawful demands of dowry made by accused. This is a cruelty let lo ose by the accused on his wife Sofia, which, by itself, depicted a reasonable ne xus between crime and the accused, which ultimately compelled the victim to take her life. From the evidence on record, we find that the cruelty let lose by acc used on his wife soon before her death in connection with demand of dowry has be en established.

26. A bare reading of Section 304-B IPC would show that when a question aris es where a person has committed the offence of dowry death of a woman, what is n ecessary to be shown that soon before her unnatural death, which took place with in seven years of the marriage, the deceased had been subjected to cruelty or ha rassment in connection with the demand of dowry. The prosecution having succeede d in proving the same, it can safely be presumed that the accused had caused the dowry death. The prosecution has achieved in proving the persisting demand by t he accused regarding the dowry and on account of the failure to meet such demand , the victim wife was subjected to torture and harassment which ultimately led h er to commit suicide.

27. As observed by the Apex Court in Satvir Singh and Others Vs,. State of P unjab (2001 Crl.J 4625) - (cid:28)Suicidal death (cid:29) of a married woman within seven years of her marriage is covered by the expression (cid:28)death of a woman is caused or occ urs otherwise than under normal circumstances (cid:29) as expressed in Section 304-B IPC (cid:29). It may also be mentioned that neither any evidence was led by defence nor from t he evidence placed on record by the prosecution, we can draw any plausible, reas onable and trustworthy explanation to rebut the presumption under Section 113-A of the Evidence Act.

28. Upon careful consideration of the factual scenario on the back ground of the principles enunciated in various decisions of the Apex Court, we find that the accused-appellant has been rightly convicted for the offence punishable unde r Section 304-B and 498-A IPC.

29. Learned counsel for the appellant has submitted that the appellant was a young man of 26 years at the time of commission of offence and also only earnin g member of the family. It is further submitted by the learned counsel for the a ccused-appellant that the incident had occurred long back and the minimum punish ment under Section 304-B IPC is 7 years imprisonment, and therefore, prayed for considering the entire gamut of factors, showing leniency with regard to imposin g sentence for the offence committed by the accused.

30. Having considered the submissions of the learned counsel for the parties and also taking into consideration the above circumstances, we are of the consi dered view that the ends of justice would be satisfied if the sentence of impris onment for life imposed by the learned trial Court under Section 304-B IPC is al tered to 10 years rigorous imprisonment, with a fine of Rs.2,000/-. It is order ed accordingly.

31. f. With the above modification and direction, this appeal stands disposed o

32. Send back the Lower Court’s record immediately.