High Court
Case Details
Crl.A. 183/2005 BEFORE HON’BLE MR JUSTICE P K MUSAHARY JUDGMENT AND ORDER (Oral) This appeal is directed against the judgment and order dated 4.8.2005 passed by the learned Assistant Sessions Judge, Nalbari in Sessions Case No.82/03 convict ing the appellant under Section 304 (B) IPC and sentencing him to undergo rigoro us imprisonment for ten years . 2.
Legal Reasoning
The prosecution story in brief is that the appellant married the informant’s daughter Rafiya Begum and out of said wedlock a male child was born . The informant’s daughter was allegedly killed by the appellant on 21.12.2002 d ue to failure of the informant to meet the dowry demand. The informant’s FIR wa s received and registered as Belsor P.S.Case No.138/2001 under Sections 498 (A)/ 304 (B) IPC. The usual investigation was carried out. The post mortem was conduc ted on the dead body of the deceased in the Nalbari Civil Hospital and after con clusion of the investigation and collection of the post mortem report, the IO co ncerned laid the charge-sheet under the aforesaid sections of law. On committal, the learned Sessions Judge framed charge against 8 (eight) accused persons, in cluding the present appellant, under Section498A and 304B /34 IPC. All the accus ed persons pleaded not guilty and claimed to be tried. They accordingly stood th e trial. The prosecution examined 9 witnesses while the accused persons examined none. The accused persons took the plea of complete denial. On the basis of the materials and evidence on record the learned trial court convicted the present appellant Md. Akbar Ali under Section 304 B IPC and sentenced to undergo rigorou s imprisonment for 10 years. The other co-accused persons were acquitted. Hence this appeal by this present appellant alone against the said conviction and sent ence. 3. I have carefully gone through the records as well as the evidenc e of the prosecution witnesses which are available on record. The informant, Md. Rahman Choudhury is the father of the victim and he was examined as PW-1. He ha s testified the fact of filing Ejahar but he has not stated anything about the d owry demand by the appellant and the other co-accused persons. The prosecution a lso examined some neighbours as independent witnesses namely PW-2 and 3. They ar e reported witnesses and they have not stated about the dowry demand. From the evidence it is found that none of the witnesses except PW-5, mother of the decea sed, made any statement regarding dowry demand. In the evidence of PW-5 there is a little reference about the demand for gold ring by the present appellant fr om the in laws to give it as a present to the grandson the occasion of his bir thday. It cannot, in true sense, be termed a dowry demand inasmuch it was only a demand for the grand son and not for himself or any of the in laws. There is nothing in the evidence that the appellant, and for that matter, any of the co-a ccused or relative of the appellant demanded dowry in the form of cash or kind. 4. As regards the allegation of torture on the victim none of the w itnesses have stated that they have ever seen or witnessed any act of physical o r mental torture perpetrated by the appellant or the family members of the appel lant on the victim. The prosecution in my considered view, could not place any m aterial to bring home the charge of torture related to dowry demand within the m eaning of Section 498 and 304B IPC. As per the medical evidence particularly the evidence of Dr. Sar 5. ojoni Mojumdar Choudhury (PW-8), the deceased died due to asphyxia following st rangulation. The opinion of the medical officer may be correct but there is no o cular evidence that it was the appellant who caused the death by strangulation. It appears from the evidence of PW-4, Sayeda Runu Begum (PW-6) that the victim w as shifted to Nalbari Civil Hospital in his rickshaw and the victim was found al ive and she was vomiting. There were two other ladies accompanying the victim. T hey were Rahina and Nasina. The prosecution did not examine them as witnesses. T here is nothing on record that the victim made any dying declaration while she b oarded the rickshaw towards the civil hospital. There is also no evidence that t he victim, while under treatment in the civil hospital, made any dying declarati on or she intended to make such dying declaration against the appellant or any o ther family members of the appellant. In absence of such dying declaration the c ourt cannot come to a conclusion that the appellant committed the alleged offenc e. Moreover, there is no evidence on record that the relationship between the vi ctim and the appellant was strained for some reasons while they have been livin g as husband and wife. There is also nothing on record that the deceased ever ma de any complaint before the police or before any authority about the alleged phy sical torture on her by in laws and the appellant at any point of time. 6. What is most material for awarding conviction under Section 304B is that the demand for dowry by the husband or the relatives of the husband sho uld be made out or established for connecting the death of the wife with dowry demand within seven years of the marriage and unless the prosecution succeeds in proving the same the accused cannot be convicted and punished under Section 30 4B IPC. There may be a case under Section 302 IPC but in the present case no ch arge framed under the said section. The court cannot proceed on the presumption that the appellant committed murder attracting provision under Section 302 IPC. In view of the above, I am not agreeable to uphold the judgment and order of con viction and sentence as rendered by the learned trial court inasmuch as the all egation of dowry demand could not be proved by cogent evidence and no iota of ev idence is available in support of the allegation that the appellant had done awa y his wife by strangulation or in any wrongful manner. In my considered view th e charge could not be established beyond all reasonable doubt and as such the ap pellant is entitled to acquittal on benefit of doubt. Accordingly, the impugned judgment convicting and sentencing the appellant is hereby quashed and set aside . The appellant is acquitted on benefit o doubt. He be set at liberty fort hwith if his further detention is not required in connection with any other case . 7. The appeal succeeds. Return the LCRs.