High Court
Case Details
Heard Mr. K Sarma, learned counsel for the appellant. Also heard Mr. BJ
Legal Reasoning
Crl.A. 124/2009 BEFORE HON’BLE DR. (MRS.) JUSTICE INDIRA SHAH This is an appeal against the judgment and order dated 10.06.2009 delivered by l earned Sessions Judge, Kokrajhar in Sessions Case No. 46/2008 convicting the acc used appellant under Section 304-B IPC and thereby sentencing him to undergo RI for 10 (ten) years. 2. Dutta, learned Addl. Public Prosecutor, Assam. 3. The prosecution case in brief is that Jabeda Khatun (deceased) was marri ed to the appellant Saha Alam on 15.01.2007. After solemnisation of her marriage she was subjected to torture by the husband and his family members. The husband and family members demanded dowry. On 21.08.2007, she was sent to her parental house by the husband to bring an amount of Rs. 5,000/- which could not be given by her parents and she was sent back to her matrimonial home. After 7 (seven) d ays, the father of the victim was informed over phone that the victim consumed p oison and she is dead. Next day morning the father (PW1) alongwith his brother, Md. Miyer Ali (PW3) went to the house of the accused and found the accused appel lant absconding. 3. Md. Ear Ali, father of the victim lodged an FIR on 28.08.2007. On the ba sis of his FIR, Gossaigaon P.S. Case No. 179/2007 under Section 304-B IPC was re gistered. 4. eased and the body was subjected to post mortem examination. The parents of the appellants, namely, Samsul Hoque and Sakaton Bibi wer 5. e arrested. The accused Saha Alam was absconding. On completion of the investiga tion, police submitted the charge sheet under Section 304-B IPC, against Samsul Hoque, Sakaton Bibi and Saha Alam showing the appellant Shah Alam as absconder. Subsequently the accused Saha Alam surrendered before the learned Chief Judicial During the investigation police held inquest on the dead body of the dec Magistrate. 6. The accused persons pleaded not guilty to the charge framed against them under Section 304-B IPC and claimed to be tried. In order to prove its case, the prosecution examined altogether 6 (six) 7. witnesses. Thereafter, statements of the accused persons were recorded under Sec tion 313 Cr.PC, wherein they denied their involvement in commission of the offen ce. They, however, did not adduce any defence evidence. PW1, Md. Ear Ali, father of the deceased deposed that immediately after 8. 1 (one) month of marriage, the appellant Saha Alam subjected his daughter with c ruelty demanding dowry. The victim had reported the incident to her parents. He, however, stated that the victim did not complaint against her father-in-law. Sh e had stated that her mother-in-law has quarrelled with her. Just five days ahea d of the incident, the victim came to her parental house and stated that her hus band had demanded Rs. 5,000/-. PW1, however, could not make the payment and told his daughter that he would pay it later on availability of money. Thereafter, t he victim went to her husband’s house. After 5 (five) days his another son-in-la w informed him over telephone from PCO that Jabeda (deceased) had committed suic ide by consuming poison. Next day morning, he alongwith his brother went to the house of the accused. Prior to that, they visited the police out post where they saw Samsul Hoque (father of the appellant) and some other people. They went to the house of the accused alongwith the police, they did not find the appellant i n their house. He alleged that his daughter did not commit suicide by consuming poison, she was murdered. She further stated that he had paid an amount of Rs. 1 900/- to Samsul Hoque (father of Saha Alam) 2/3 months prior to the death of Jab eda. He also alleged that Jabeda was assaulted by her husband on demand for dowr y. 9. Lending support to the evidence of PW1, PW3 (Md. Miyer Ali), uncle of th e deceased stated that Jabeda was subjected to physical torture and harassment b y her husband on demand for dowry. The accused husband demanded Rs. 5000/- which his brother (PW1) could not pay and after 4/5 days of that demand, she was foun d dead. He further stated that he noticed slight blood near the ear of the decea sed Jabeda. According to him, Jabeda had shown her injured back stating that she was assaulted by her husband for non-payment of money. 11. On the basis of the evidence of PW4 10. As per evidence of PW4 (Mosstt. Mozirun Bibi) and PW5 (Md. Safaruddin) n eighbours of the accused stated that the victim consumed poison. According to th em, they went to the house of the accused and saw many people there. Jabeda was still alive and was in a position to speak. She told them that she had consumed the poison. She was shifted to hospital where she died. In her cross-examination she stated that she asked the victim why she consumed poison, then she told her that as her mother who visited her house did not take her she consumed poison. Dr. KK Ramchiary (PW2) conducted the post mortem examination on the dead body of the deceased on 28.08.2007 and found no external or internal injuries o n her body. Viscera were collected and sent to the FSL for ascertaining the caus e of death of the deceased. As per the report of the FSL, no poison was detected . PW6 is the Investigating Officer. 12. 13. Here, in this case the allegation of PW1 is that the accused persons cau sed death of the deceased. They had subjected the victim with cruelty and harass ment to fulfil their demand for dowry. As per the evidence of PW4 and PW5, the v ictim had consumed poison. However, the doctor, who held post mortem or the Scie ntific Officer, who examined the viscera failed to ascertain the real cause of t he death of the deceased. 14. and PW5 as well as the statement of the accused recorded under Section 313 Cr.PC, the learned trial Court held t hat death of the deceased was not natural death but occurred otherwise under nor mal circumstances. 15. There is no dispute that death of the deceased occurred within 7 (seven) years of her marriage. There is evidence of PW1 and PW3 that soon before her ma rriage the victim was subjected to cruelty or harassment by her husband in conne ction with demand for dowry. 16. The learned trial Court with the help of Section 113-B of the Evidence A ct had drawn presumption against the accused that the accused has caused dowry d eath. 17. but before that three things must have to be proved by the prosecution:- (i) The death of woman is caused by any violence or bodily injury or occurs othe rwise than under normal circumstances. (ii) Such death occurs within 7 (seven) years of her marriage. (iii) Soon before her death, she was subjected to cruelty or harassment by her h usband or near relative of her husband and such harassment and cruelty must be i n connection with any demand for dowry. 18. Here in this case the doctor who conducted the post mortem on the dead b ody of the deceased did not find any injury on the dead body. The cause of death could not be ascertained. The prosecution even failed to prove that the death o No doubt a presumption under Section 113-B of Evidence Act can be drawn f the deceased was homicidal in nature. 19. The adverse presumption cannot be drawn just on establishing of the fact of the death of the woman within 7 (seven) years of her marriage. 20. The evidence of PW1 and PW3 only shows that after the marriage the accus ed has been demanding dowry and she was subjected to cruelty. If their evidence is to be believed the prosecution has made out a case only under Section 498-A I PC. 21. Incriminating circumstance appearing against the accused appellant is th at he was found absconding immediately after the incident. However, mere abscond ing by itself does not necessarily lead to a conclusion of guilt. It was observe d in the cited case of O. Kullabi Singh Vrs. The State of Manipur 1998 (1) GLT 3 5 that even an innocent man may feel panicky and try to evade arrest when wrongl y suspected of a grave crime such is the instinct of self-preservation. The act of absconding it no doubt relevant piece of evidence to be considered alongwith other evidence but its value would always depend on the circumstances of each ca se. Normally the Courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conv iction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than quilt of accused. From the evidence of PW4 and PW5 it appears that the victim consumed poi 22. son and if she had consumed poison it was a case of suicide and at best the appe llant could had been prosecuted under Section 306 IPC. That conviction under Sec tion 304-B IPC in case of suicide cannot be sustained. However, from the medical evidence it cannot be safely concluded that the victim consumed poison and the accused appellant abetted the commission of suicide. 23. Considering all, I find that the prosecution has only proved that the vi ctim was subjected to cruelty by her husband after her marriage. Although no cha rge under Section 498-A IPC was framed against the accused appellant. He can be convicted for the minor offence. 24. In view of what has been discussed above, the appellant is liable for pu nishment under Section 498-A IPC. It is submitted that the appellant has already suffered imprisonment for more than 3 (three) years. The accused appellant is a ccordingly convicted under Section 498-A IPC and his sentence is reduced to peri od already undergone by him. 25. Send down the LCR alongwith a copy of this judgment.