High Court
Case Details
Crl.A. 134/2012 BEFORE THE HON’BLE MR.JUSTICE I.A. ANSARI By the judgment and order, dated 25-04-2012, passed, in Sessions Case No. 15(D)/ 2007, by the learned Additional Sessions Judge, FTC, Bongaigaon, the accused-app ellant stands convicted under Section 304B IPC and sentenced to undergo rigorous imprisonment for ten years. 2. The case of the prosecution, as unfolded at the trial, may, in brief, be described as under: (i) Deceased Farhana Rafique was wife of accused, Mizanur Rahman, th eir marriage having been solemnized, on 09-02-2002, at the residence of her brot her, Jiaur Rafique (PW1). After their marriage, the couple resided together at t he house of the accused, who, being a doctor, was posted to different places, su ch as, Chalantapara, Goalpara and Bilasipara. Farhana Rafique (since deceased) a ccompanied the accused to the latter’s different places of posting. Thereafter, the accused went to Dibrugarh for higher education and, during the said period, the accused was accompanied by his wife, who used to live with the accused. Afte r his marriage, the accused raised demand for one Maruti car and also a sum of R s. 2,00,000/-, in cash. Because of the inability of his wife to meet the demands of the accused, the accused used to torture her. When the accused took his wife to her mother’s house, she reported the incident to her mother and sister.
Facts
In the month of November, 2005, the wife of the accused came to her husb (ii) and’s house at Bilasipara and started living there. On the night of 26-12-2005, while the accused and the said deceased used to reside, as husband and wife, in their marital house at Bilasipara, the wife of the accused died, because of asph yxia as a result of being strangulated. The accused also suffered cut injuries o n his neck at two different places. (iii) As the accused and his wife did not get up on 27-12-2005, PW17, brother of the accused, who also used to live with his family, sent his servant to the h ouse of the accused and though the servant called the accused and his wife, ther e was no response from inside their house. Thereafter, PW17 himself went to the house of the accused and heard someone groaning inside the house. Being alarmed, PW17 raised hullah and their neighbours came. PW17, then, accompanied by his ne ighbours, entered into the house of the accused by opening the door of the house of the accused, which had not been kept closed from inside, and found, to his h orror, the wife of the accused lying dead and the accused lying in seriously inj ured condition inside their house. (iv) PW1, elder brother of the deceased, on being informed about the occurren ce, lodged an Ejahar, in writing, on 27-12-2005, at Dhaligaon Police Station. Tr eating the said Ejahar as First Information Report (in short, ’FIR’), Dhaligaon Police Station Case No. 83 of 2005, under Section 302 IPC, was registered agains t the present accused-appellant. During the course of investigation, police held inquest over the said de (v) ad body, which was also subjected to post mortem examination. In highly critical stage, the accused was carried to hospital, where his statement was recorded as a dying declaration. The accused, however, survived and, on completion of inves tigation, a charge-sheet was laid, under Section 304B IPC, against the accused. 3. At the trial, a charge, under Section 304(B) IPC, was framed against the accused-appellant. To the charge, so framed, the accused pleaded not guilty. In support of their case, prosecution examined altogether 24 witnesses. 4. The accused was, then, examined under Section 313 Cr.P.C. and, in his examinatio n aforementioned, the accused denied that he had committed the offence, which wa s alleged to have been committed by him, the case of the defence being that of d enial. No evidence was adduced by the defence. 5. Having, however, found the accused guilty of the offence, which he stood charged with, learned trial Court convicted him accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence pa ssed against him, the accused, as a convicted person, has preferred this appeal.
Legal Reasoning
As the evidence of PW6 ex facie suffers from exaggeration, it is well-ni 27. Coming to the evidence of PW7, I notice that this witness has deposed th at, on 28.11.2005, he went to Dhaligaon Police Station and saw the dead body of the said deceased with a black mark on her neck and her tongue protruding out. PW7 has also deposed that he came to know from his wife about the demand of car and money raised by the accused and that the accused used to torture his wife. 28. Suffice it to point out, while considering the evidence of PW7, that his evidence, with regard to the demand of car and money, which the accused had all egedly raised, was reported to him by his wife. The assertion of PW is nothing b ut hearsay and must be kept excluded from the purview of this Court’s considerat ion inasmuch as the wife of PW7 has not deposed that the said she had ever repor ted to husband that the said deceased had told her that the accused used to tort ure her by raising demand for car or money. 29. PW8 is the sister of the said deceased and her evidence is that the said deceased was subjected to torture by the accused for money and car. From her e vidence also, it is not discernible if the said deceased had ever reported to PW 8 about her being subjected to torture by the accused for her inability to meet the demand of the accused regarding money and car. How PW8 came to know about t he demand being made by the accused for car and money remains wholly unanswered by the evidence on record. 30. As regards the evidence of PW9, it is sufficient to point out that he is merely a witness, who had seen the dead body of the said deceased lying inside the house of the accused. To the same effect is the evidence of PW10, PW12, PW1 3 and PW14. 31. From the above discussion of the evidence on record, one cannot but conc lude that there is no cogent, clear, definite and positive evidence establishing the fact that it was none but the accused-appellant, who had put his wife to de ath. 32. In the light of the above state of evidence on record, let me, now, turn to Section 304B IPC and Section 113B of the Evidence Act. Section 304B IPC rea ds as under: (cid:28)Where the death of a woman is caused by any burns or bodily injury or occurs ot herwise than under normal circumstances within seven years of her marriage and i t 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 d emand for dowry, such death shall be called ’Dowry Death’ and such husband or re lative shall be deemed to have caused her death. (cid:29) Coupled with the above, Section 113B of the Evidence Act reads: 33. (cid:28)Presumption as to dowry death - when the question is whether a person has commi tted the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in conn ection with, any demand for dowry, the court shall presume that such person had caused the dowry death. (cid:29) 34. While considering the question of dowry death, as provided in Section 30 4B IPC, it needs to be pointed out that the enactment of Dowry Prohibition Act, 1961, in its original form, was found inadequate, because experience showed tha t demand of dowry and the modes of its securing took different forms to achieve the result. This apart, the consequences of non-fulfillment of demand for dowry included death of the bride by suicide or otherwise. The experience, so gathere d, led to the legislative measures of enactment of Section 304B IPC and conseque ntial amendments, in the Evidence Act, in the form of Section 113B. 35. The peculiar feature of Section 304B IPC is the use of the expression de ath; rather than homicide. Hence, even if there was no evidence of homicidal dea th, a charge, under Section 304B IPC, could still be maintained if death, in a g iven case, was caused by burns or bodily injury or occurred otherwise than under normal circumstances. 36. What is, however, of great significance to note, while considering Secti on 304B IPC, is that cruelty or harassment may not be enough and that there must be proximate and insevereable connection between death, on the one hand, and ac ts of cruelty or harassment, on the other. 37. The expression, ’soon before her death’, used in the substantive part of Section 304B I.P.C. and also appearing in Section 113B of the Evidence Act, con veys the idea of proximity. Naturally, no definite period could have been indica ted to explain ’soon before her death’. 38. No wonder, therefore, that the expression, ’soon before her death’, appe aring in Section 304B IPC, has not been defined. The determination of the period , which can fall within the term ’soon before’, is left to be determined by the courts depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression ’soon before’ would, normally, imply that the inte rval must not be long between cruelty or harassment, on the one hand, and the de ath, in question, on the other. There must be existence of a proximate and live- link between the effect of cruelty or harassment based on dowry demand and the c oncerned death. If alleged incident of cruelty or harassment is remote in time a nd has become stale enough not to disturb mental equilibrium of the woman concer ned, it would be of no consequence. (See Kaliyaperumal v. State of Tamil Nadu (A IR 2003 SC 3828).See also Yashoda v. State of Madhya Pradesh, (2004) 3 SCC 98). 39. A conjoint reading of Section 304B and Section 113B of the Evidence Act shows that where death of a woman is caused by any burn or bodily injury, or occ urs otherwise than under normal circumstances, within seven years of her marriag e, and it is shown that soon before her death, she was subjected to cruelty or h arassment by her husband or any relative of her husband for, or in connection wi th, any demand for dowry, such death shall be called ’dowry death’ and such husb and or relative shall be deemed to have caused her death. At the same time, Sec tion 113B of the Evidence Act provides that where there arises a question as to whether a person has committed the dowry death of a woman and it is shown that s uch person had subjected such woman to cruelty or harassment, soon before her de ath, for, or in connection with, any demand for dowry, the Court shall presume t hat such person had caused the dowry death. 40. One cannot, however, ignore the fact that merely because a woman dies wi thin the prescribed period of 7 years, coupled with the fact that she had been s ubjected to cruelty soon before her death, would not make the person, who had su bjected the woman to cruelty or harassment for, or in connection with, any deman d for dowry, liable for conviction for an offence of dowry death unless a nexus between the demand for dowry and its consequential harassment or cruelty, on the one hand, and the unnatural death of the woman, on the other, is established. W hen an unnatural death is for reasons other than demand for dowry, such a death would not fall within the definition of dowry death. For illustration, if ’X’ a nd ’Y’ are husband and wife and it is proved that ’Y’, as husband, had subjected his wife ’X’ to cruelty soon before her death for, or in connection with, any d emand of dowry, and that she died within 7 years of her marriage, in the circums tances other than normal, the husband ’Y’ would not be liable for dowry death if it is proved that ’X’ was killed by ’Z’ and that too not at the instance of ’Y’ . Situated thus, it is clear that if the prosecution establishes that ther 41. e were acts of cruelty or harassment on the woman, but her unnatural death was n ot connected to such cruelty or harassment, no conviction of the accused would b e permissible. Thus, prosecution will have to rule out the possibility of a natu ral or accidental death to sustain the charge under Section 304B IPC. As observe d by the Supreme Court, in Kaliyaperumal v. State of Tamil Nadu (AIR 2003 SC 382 8): (cid:28)8. A conjoint reading of Section 113B of the Evidence Act and Section 304B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibil ity of a natural or accidental death so as to bring it within the purview of the ’death occurring otherwise than in normal circumstances’ &.. (cid:29) (Emphasis is added) In the case at hand, too, there is nothing to show that it was the accus 42. ed-appellant, who had caused the death of his wife. In fact, the possibility of the accused having been assaulted along with his wife cannot be ruled out, part icularly, when there is no evidence on record to show that the weapon, which had allegedly been used by the accused for committing suicide, had been found near his injured body. Strangely enough, the weapon, allegedly used for the purpose o f attempting suicide by the accused was, according to the prosecution, a blade, which was found lying near the accused and though the said blade had been seized by police during investigation, the blade was not sent to Forensic Science Labo ratory for serological test and, in such circumstances, there cannot be said to be any definite evidence on record that the blade, which was seized, had been th e weapon for causing injury on the neck of the accused. Because of what have been discussed and pointed out above, it could not 43. have been held that the accused-appellant had been proved, beyond reasonable dou bt, guilty of dowry death. At any rate, in the facts and attending circumstance s of the present case, as discernible from the evidence on record, the accused-a ppellant ought to have been accorded, at least, benefit of doubt. 44.
Arguments
I have heard Mr. YS Mannan, learned counsel for the accused-appellant, a 6. nd Mr. KA Mazumdar, learned Additional Public Prosecutor, Assam. 7. While considering the present appeal, it is apposite to take note of the evidence of PW20 (Dr. Debasish Goswami), who had, admittedly, conducted, on 28- 12-2005, at RNB Civil Hospital, Kokrajhar, post mortem examination on the dead b ody of Farhana. The findings of PW20 are as under: (cid:28)Condition of subject stout emaciated, decomposed, etc. Well built slightly swollen, wearing simple cotton night dress with red full swe ater and a blue colour chaddar, eyes, mouth closed, teething is found. Body is i n the early stage of decomposition. Wound - position and character : Bloodstained left nostrils with heavy amount of blood clots are seen on the left side of body over the chaddar, she was wearing. Bruise - position, size and nature: A pin prick is seen in the left hand of the upper arm. Abdomen was congested. Thorax : Petechial hemorrhage is found in the subcutanontissu of trachea and Hyoid Bone a nd congested. Heart : Heart chamber filled with liquid blood. Vessels : Congested. Diseases or Deformity : Stillness. Cranium and Spinal Canal : Congested. Liver : Liver in the early stage of decomposition. Organs of Generation, External and Internal : Nothing abnormality was detected. Uterus - no sign of pregnancy. (cid:29) 8. The doctor (PW20) has opined that the cause of death was asphyxia as a r esult of manual strangulation, which was ante mortem and homicidal in nature, Ex t. 9 being the post mortem report. 9. Nothing could be elicited from the cross-examination of the doctor (PW20 ) to show that his findings and/or his opinion, with regard to the nature of the injuries found on the said dead body or with regard to the cause of death of th e said deceased, were incorrect or untrue. In fact, the material aspects of the evidence of PW20 remained wholly unchallenged by the defence. This apart, this C ourt, too, does not notice anything inherently improbable or incorrect in the me dical evidence on record. Situated thus, there is no difficulty in concluding, and I do conclude, 10. that the said deceased died, because of asphyxia following manual strangulation. 11. Bearing in mind the cause of death of the wife of the accused, let us, n ow, turn to the injuries, which had been found on the person of the accused-appe llant. It is, in this regard, noteworthy that the accused-appellant was taken to Lower Assam Hospital, Bongaigaon, on 27-12-2005, in severely injured condition and was treated there. PW3 is the doctor, who had examined and treated the accus ed-appellant at the said hospital. This doctor’s evidence, as regard the injurie s, found on the person of the accused-appellant, are as under: (cid:28)Type of wound: (i) Deep linear cut wound, part over which injury inflected - A linear cut would on the right side of the neck in the submandibular region about 8 cm in length extending from the centre of the neck to the medial border of the sternomaztoid muscle diving the submandibular gland, platysma, external jugular vein and part of sternomastoid muscle. The wound was gradually deepening from the medial borde r and became shallow and tailed off in the lateral border. There was severe blee ding from the injury side. (ii) A linear cut wound on the left side of the neck in the submandibular region about 7 cm in length extending from the medical border of the left sternomaztoi d muscle to about 3 cm away from the middle of the neck with division of superfi cial vessels and severe bleeding from the cut vessels. The wound was gradually d eepening from the lateral border and became shallow and tailed off in the medial border. Two numbers of superficial linear hesitation cut injuries seen just abo ve the right side deep cut wound. (cid:29) 12. PW3 has clarified, in his evidence, that the condition of the patient (i .e., condition of the accused) was very serious and it was necessary to record h is dying declaration and, accordingly, Dr. Bordoloi recorded the dying declarati on in the presence of PW5, PW15 and PW16, Ext. 5 being the dying declaration. Ho wever, since the accused has survived, the dying declaration, as this Court has already pointed out above, has ceased to be a dying declaration. 13. Bearing in mind the medical evidence on record, let me, now, turn to the evidence of PW17, brother of the accused, whose evidence is that on the day of the occurrence, noticing that till 8.00 a.m., the accused and his wife were stil l not awake, he sent his servant to inquire, but the servant failed to wake up t he accused and his wife and, thereafter, he (PW17) himself went to the house of the accused and, on hearing some groaning sound inside the house of the accused, he (PW17) raised hullah, people from neighbourhood assembled, they found the do or of the house of the accused open from inside and when they entered into the h ouse of the accused, they found the wife of the accused lying dead and the accus ed was lying seriously injured in a pool of blood. It is in the evidence of PW17 that both, the accused and his wife, were taken to the hospital, where the wife of the accused was declared dead. 14. In his cross-examination, PW17 has deposed that incidents of dacoity had taken place in their area frequently. Be that as it may, close on the heels of the evidence of PW17, PW18 has 15. deposed that the accused and his wife were sent to hospital, where the wife of t he accused was declared dead. 16. From a close scrutiny of the evidence of PW17 and 18, it cannot be confi dently held that it was the accused-appellant, who had caused the death of his w ife. It may be pointed out, in this regard, that though it has been the case of the prosecution that the accused had caused the death of his wife and, then, att empted to commit suicide, there is no evidence, tangible or otherwise, supportin g this hypothesis of the prosecution; more so, when this Court finds that the ac cused sustained very serious injuries and there is nothing on record to show tha t these injuries were self-inflicted. 17. In fact, the evidence, given by PW3 (doctor) shows that there were two l inear cut wounds on the neck of the accused, one of the injuries being at the ce ntre of the neck and the other one was on the left side of the neck. This apart, the undisputed evidence of PW17, brother of the accused, has been that they fou nd the door of the house of the accused open from inside meaning thereby that th e door of the house of the accused was not found shut or closed from inside, whe n PW17, accompanied by his neighbours, reached the house of the accused, opened the door of the house and witnessed the ghastly sight of the wife of the accused lying dead and the accused lying in seriously injured condition. 18. In the absence of any evidence on record showing that the door of the ho use of the accused-appellant was found shut or closed from inside, it is not onl y difficult, but impossible to hold, confidently and boldly, that the accused ha d killed his wife and, then, made an attempt to commit suicide. 19. Keeping in view the fact that there is nothing on record to show that th e accused was the one, who had killed his wife, let me, now, turn to the evidenc e of the informant (PW1). This witness’s evidence is that when the accused went to Dibrugarh for higher education, his wife lived with the accused, the accused raised demand for a Maruti car and cash amount of Rs. 2,00,000/- and on the fail ure, on the part of the wife of the accused, to meet the demand, she was subject ed to torture by the accused and, thereafter, the accused took the victim to her parent’s house, where the wife of the accused reported to her mother and sister as to how the accused had been ill-treating. 20. There is, however, nothing in the evidence of PW1 to show that the said deceased had, at any point of time, reported to PW1 that she had been subjected to cruelty by the accused by raising any demand for Maruti car or money. In fact , in his cross-examination, PW1 has conceded that it was his mother (PW2), who h ad reported to him (PW1) about the demand of Maruti car and money, which the acc used had allegedly raised. Conceded further, in his cross-examination, PW1 that he has neither mentioned, in his Ejahar nor in his statement recorded by the pol ice during investigation, that the accused had raised any demand for Maruti car or money. 21. No reliance can, therefore, be safely placed on the evidence of PW1 that the accused had raised any demand for Maruti car or money. 22. Close on the heels of the evidence of PW1‘, PW2, mother of the deceased, has deposed that she had been reported by the deceased that the accused had tor tured her by demanding Maruti car and money. Even PW2 has agreed that she had no t made any statement to the police with regard to the demand raised by the accus ed for money or car. 23. Thus, PW2 had not made any statement, in the past, when the investigatio n was in progress, that her daughter had been subjected to cruelty for non-fulfi llment of demand of Maruti car or money as has been allegedly PW2 at the trial. 24. In the circumstances indicated above, it is wholly impossible to place i mplicit reliance on the evidence of PW2 that any such demand for Maruti car or m oney, as alleged by PW2, had taken place. So far as PW6 is concerned, her evidence is that two years after her mar 25. riage, the said deceased reported to her that according to her husband, the arti cles, gifted to her, at the time of her wedding, were of poor quality. The evide nce, so given by PW6, is not supported at all by the evidence of PW1 and/or PW2 inasmuch as neither PW1 nor PW2 has deposed that the accused had expressed, at a ny stage, his dissatisfaction with the quality of materials, which the said dece ased had carried to her matrimonial house. 26. gh impossible to place readily any reliance on her evidence either.
Decision
In the result and for the reasons discussed above, this appeal succeeds. The impugned conviction of the accused-appellant and the sentence, which has be en passed against him by the judgment and order, under appeal, are hereby set as ide. The accused-appellant is hereby held not guilty of the offence, which he h as been convicted of. 45. surety shall stand discharged. 46. of. 47. As the accused-appellant is on bail, his bail bond is cancelled and his With the above observations and directions, this appeal stands disposed Send back the LCR.