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Alim Uddin & Another v/s State of Assam & Another

    Criminal Appeal No. 183 of 2014

    Decided On, 01 August 2017

    At, High Court of Gauhati


    For the Appellants: DK Bagchi. Advocate, For the Respondents: R1, S. Jahan, Addl. PP. R2, None Appears.

Judgment Text

Cav Judgment & Order:

1. This is an appeal filed under Section 374(2) of the Cr.PC against the judgment and order, dated 27.11.2013, passed by the learned Sessions Judge, Karimganj, in Sessions Case No. 126/2011, whereby the accused appellants were convicted, under Sections 304-B IPC, and sentenced them to undergo Rigorous Imprisonment for 10 (ten) years each.

2. Heard Mr. DK Bagchi, learned counsel for the appellants. Also heard Mrs. S Jahan, learned Additional Public Prosecutor, appearing for the State of Assam/respondent No.1. None appears for the respondent No. 2.

3. The prosecution case, briefly stated, is that, the deceased Monowara Begum got married with accused No. 1 Alim Uddin on 18/09.2017 and thereafter, they started living together as husband and wife. After about 2 (two) months of their marriage, the accused No. 1 and his mother, Musstt. Anwara Begum demanded Rs. 2,000/- from the deceased. The deceased came back to her parental home and informed her family members about the demand. Since they were unable to meet the demand aforesaid, she became reluctant to go back to the company of her accused husband. She stayed at her parental home for about 5 (five) months. Thereafter, she lodged an FIR with the Police, in connection with the harassment caused to her by the accused persons by way of demanding money. However, this matter was settled between herself and her accused husband on being mediated by some co-villagers. After such settlement, she went to her in-laws home. After about one month of her stay in her in-laws house, she died in unnatural circumstances.

4. On receipt of the FIR, dated 11.06.2009, on such facts, the Ram Krishna Nagar Police Station registered a case being No. 45/2009 under Section 304-B of the IPC.

5. On receipt of the case, on being committed to it, the learned Sessions Judge framed a formal charge against the accused appellants under Sections 302/34/304(B) of the IPC. The trial commenced as the accused appellants pleaded innocence.

6. In their statements recorded under Section 313 of the Cr.PC, the accused appellants stated that the deceased committed suicide. They denied the accusation against them.

7. The prosecution examined 1

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witnesses to substantiate the charges under Section 302/304-B/34 IPC. It is revealed from the evidence on record that the entire case of the prosecution hinges on circumstantial evidence.8. Let us now scan and discuss the evidence on record to find out whether the evidence led by the prosecution has substantiated and proved the accusations levelled against the accused appellants.9. Of the witnesses examined by the prosecution, PW1 Abdul Hamid and PW9 Abdul Ahad, are the brothers of the deceased, PW2, Fulon Bibi is the mother of the deceased. The rest of the witnesses knew the deceased. A bare reading of the evidence tendered on record would show that except the evidence of PW1 Abdul Hamid, PW2, Fulon Bibi and PW9 Abdul Ahad none of the witnesses have deposed to any incriminating circumstances.10. It would be necessary to analyse the incriminating circumstances, if any, in the prosecution case.11. PW1, Abdul Hamid, deposed that his sister (deceased) married the accused Alim Uddin on 18.3.2008 and that the first two months of their marriage was peaceful. Thereafter, the accused Alim Uddin started demanding dowry of Rs. 30,000/- from the deceased. The deceased reported the matter to PW1, and since he was unable to provide the money, it was decided that deceased would not return to the society of the accused husband, Alim Uddin. After about 5 months, when the accused husband did not take the deceased into his society, an FIR was lodged at Kalibari Police Out Post. The then Incharge of the Police Out Post along with two villagers, namely Abdul Nur and Ismail Ali settled the dispute and the deceased started residing with the accused husband. PW2 further deposed that on 11.6.2009 he heard about the death of his sister. He rushed to the residence of accused persons but on the way at Dargabond Bazar he found the dead body of his sister lying on the road. He noticed blood oozing out from the ear of the deceased. PW1 also deposed that he noticed an injury mark on the thigh of the deceased.12. PW2, Fulon Bibi, the mother of the deceased, deposed that while her daughter was residing in the house of one Nur Islam the people of locality had filed a case against them. After this incident Nur Islam asked accused Alim Uddin and the deceased to shift elsewhere. The accused shifted to a different place but the deceased remained in the house of PW2 for about 6 months. During the period of stay of the deceased at her paternal house accused Alim Uddin did not take steps to take her back to his society, and hence, an FIR was lodged with Kalibari Police Out Post. The dispute was, however, settled at the instance of the then Incharge of the Police Out Post with the help of mediators. Thereafter, deceased started to cohabit with the accused husband. According to PW2, four months after the resumption of marital ties, one day Anowara Begum, the other accused, came to her house crying that deceased had consumed Aldrin, a poisonous substance. PW2 then rushed to the residence of accused persons and found her daughter lying with the accused husband holding her. PW2 also deposed about the bleeding from ear of the deceased and injury marks on foot. PW2, however, made a categorical statement that the deceased told her that she did not consume poison. In the later part of the evidence PW2 also deposed that accused persons pressurized her daughter for purchasing a piece of land.13. PW9, Abdul Ahad, is also one of the brothers of deceased. PW9 deposed that her sister, the deceased, married the accused Alim Uddin about 4 years back. After few months of the marriage the accused Alim Uddin started demanding dowry of Rs. 30,000/- from the deceased as dowry whereafter the deceased lodged an FIR though at the initiative of Police the dispute was settled and the deceased started residing with the accused husband. PW1 further deposed that when he heard that his sister was in danger he rushed to the residence of accused persons but by that time the deceased was taken to Dargabond bazar. According to PW1, by the time he reached Dargabond bazar, his sister had died. PW1 deposed that he noticed blood oozing out from the ear of the deceased and an injury mark on the front side of the head. 14. The incriminating circumstances deposed to by the three material witnesses, as reproduced above, may be stated as follows;i. That the marriage of the deceased with the accused Alim Uddin took place on 18.3.2008ii. That the deceased died on 11.6.2009 which would mean that the death occurred within 7 years of marriageiii. That the accused husband had demanded cash of Rs 30,000 from the deceased.iv. That the deceased died of consumption of Aldrin, a poisonous substance.v. That the marital life of the deceased, prior to her death, had two distinct phases. One soon after the marriage and before the lodging of FIR at Kalibari O.P and the other phase beginning after the disputes were settled and marital ties were resumed. The death of Manowara, the deceased, took place during the second phase of her stay with the accused persons.15. The question, which arises, is whether these circumstances have been proved by reliable evidence, and if so, whether these circumstances are sufficient to establish the charge under Section 304-B IPC against the appellants.16. It is noticeable that there is a lack of coherence in the prosecution case, about the cause due to which the deceased had to stay in her paternal residence for a period of 6 months. According to the evidence of PW1 and PW9, the two brothers, the deceased returned to her paternal house because the accused husband had demanded a cash of Rs. 30,000/- from the deceased and since they were reluctant to pay the amount it was decided that deceased would stay back. When the accused husband did not take the deceased back to his society the FIR was lodged which, of course, was not prosecuted later due to settlement arrived at between both the parties.17. The evidence of PW2, so far as the events leading to the lodging of FIR is concerned, is entirely different. According to PW2 while her daughter was residing in the house of one Nur Islam the people of locality had filed a case against them. After this incident Nur Islam asked accused Alim Uddin and the deceased to shift elsewhere. The accused shifted to a different place but the deceased remained in the house of PW2 for about 6 months. During the period of stay of the deceased at her paternal house, accused Alim Uddin did not came to take her back to his society and hence an FIR was lodged with Kalibari Police Out Post.18. Now, even though PW2 has also deposed about the demand for money made by the accused persons her evidence is entirely vague as to whether the demand was made soon after the marriage or after the resumption of marital ties. The prosecution, on one hand, has relied on the evidence of PW1 and PW9 who have categorically deposed that deceased returned to their house soon after the marriage and reported them about the demand for cash made by the accused, whereas according to PW2 the deceased returned to her house because she was asked to shift from the residence of Nur Islam.19. When the principal prosecution witnesses are at variance on cruelty, one of the most material aspects of dowry death, it would necessitate a corroboration of allegation of dowry demand.20. PW3, Nur Islam is the person in whose house the deceased was residing soon after marriage with accused Alim Uddin. His evidence is entirely silent on any of the aspects of dowry demand. Infact, on a query made by the trial Court, PW3 deposed that he knew the deceased from her childhood but so far as the accused persons are concerned he knew them for about 6 months only. In view of the long acquaintance with the deceased vis--vis the accused persons it seems very unlikely that PW2 has suppressed any material fact which could point towards the dowry demands, as alleged.21. PW 4, Abdul Nur, whose name finds mention in the evidence of PW1, as one of the mediators who settled the dispute between the deceased and accused persons, deposed that two months after the marriage trouble started and thereafter deceased left for her paternal residence. Later, he mediated in the settlement of disputes. In his cross-examination, PW4, specifically deposes that the dispute was a family dispute.22. PW5, Ismail Ali, is another mediator who was instrumental in settling the dispute between the deceased and the accused persons. He too deposed in the lines of PW4 and hence his evidence needs no repetition.23. PW7, Alfu Bibi, is related to deceased as well as the accused persons. In her examination she too deposed that she noticed accused Anowara Begum crying aloud that deceased had consumed poison. In her cross examination she deposed that she had noticed normal relationship between deceased and the accused persons.24. It will be seen from the evidence of PWs 3, 4, 5 & 7 that none of these witnesses have supported the evidence of PW1 and PW9 about the demand for dowry or any piece of land.25. Let me now turn to the compromise deed, Ext 2. A reading of Ext 2 shows that deceased and accused Alim Uddin promised to settle their dispute and prayed for dismissal of the FIR. Ext 2 contains no reference as to any demand for cash.26. The learned trial Court having reproduced the entire evidence on record summarized his appreciation, in paragraph 19 of the impugned judgment, as follows:“From the above discussion of evidence the following facts are found to be established either by direct or indirect admission or by corroborative reliable evidence(i) Death of Monowara Begum was due to consumption of poison; (ii) The death was within the period of around one year of her marriage with the accused Alim Uddin; (iii) The incident of consumption of poison was happened (sic) in her matrimonial house when both the accused were also there in the house; (iv) There was a previous ejahar lodged by the deceased Monwara on 6.5.2009 on the allegation of torture of demand of dowry amounting to Rs 30,000/- (v) The same dispute was settled between the parties at the instance of mediator and an Aposhnama was executed by both Monwara Begum and her husband Alim Uddin; (vi) The death was occurred around one month after the above settlement and Aposhnama (vii) Name of pw 7 found as named accused in the previous FIR by deceased Monowara Begum on 6.5.2009”.27. So far as the first circumstance mentioned by the learned trial Court is concerned, there appears no direct evidence on this point that any of the prosecution witnesses have seen the deceased consuming poison. Infact, there is no evidence at all as to what deceased had consumed. PW2, in her evidence deposed that when she asked the deceased the latter had categorically stated that she had not consumed poison. Thus, the only manner in which such a finding could have been arrived at was by circumstantial evidence. In this regard I have analysed the evidence of PW6, Medical Officer who had conducted the post mortem examination. His evidence reveals that cause of death could not be ascertained. Apparently, no trace of poison was noticed in terms of physical symptoms. The evidence of PW6, Medical Officer as well as the evidence of PW10, Investigating Officer, reveal that after the post mortem, the viscera was sent for Forensic examination. The forensic examination report of the viscera is found on record. The report, communicated vide Letter No. DFS.481/3294/TOX-1047/20009 dated 15.6.2009, disclosed that examination of stomach, liver, spleen, kidney, heart and lung of the deceased revealed no trace of any poison. It is thus established that there exist neither any direct evidence nor any circumstantial evidence to sustain the finding that the deceased died due to consumption of poison.28. The second and third circumstances are admitted facts and these circumstances alone do not answer the charge.29. The fourth circumstances, so far as the fact of lodging of FIR is true, but it does not necessarily prove that the facts stated in the FIR were true. The FIR was never taken to its logical conclusion with proper investigation rather; nipped at the bud by a settlement between the parties. Hence the mere lodging of FIR is no proof of the facts that its contents are true.30. The sixth and seventh circumstances as mentioned in the judgment of learned trial Court are of no relevance.31. In Mustafa Shahadal Shaikh vs State of Maharashtra, reported in (2012) 11 SCC 397, the Hon’ble Supreme Court while outlining the ingredients of Section 304B IPC held as under:-“9. In order to convict an accused for the offence punishable under Section 304-B IPC, the following essentials must be satisfied:(i) the death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances;(ii) such death must have occurred within seven years of her marriage;(iii) soon before her death, the woman must have been subjected to cruelty or harassment by her husband or any relatives of her husband(iv) such cruelty or harassment must be for, or in connection with, demand for dowry”.When the above ingredients are established by reliable and acceptable evidence, such death shall be called dowry death and such husband or his relatives shall be deemed to have caused her death. 32. It was further held in Mustafa (supra), that to attract the provisions of Section 304-B, one of the main ingredients of the offence which is required to be established is that “soon before her death” she was subjected to cruelty or harassment “for, or in connection with the demand for dowry”. The expression “soon before her death” used in Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. It was also held that though the language used is “soon before her death”, no definite period has been enacted and the expression “soon before her death” has not been defined in both the enactments. Accordingly, the determination of the period which can come within the term “soon before her death” is to be determined by the courts, depending upon the facts and circumstances of each case. However, the said expression would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. In other words, there must be existence of a proximate and live link between the effect 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 the mental equilibrium of the woman concerned, it would be of no consequence.33. In Bansi Lal vs. State of Haryana, reported in (2011) 11 SCC 359 the Hon’ble Supreme Court held that while considering the case under Section 304-B, cruelty has to be proved during the close proximity of the time of death and it should be continuous and such continuous harassment, physical or mental, by the accused should make life of the deceased miserable which may force her to commit suicide. The Supreme Court further held that where the cruelty has been proved during the close proximity of the time of death then the provisions of Section 113B of the Indian Evidence Act, 1872 providing for presumption that the accused is responsible for dowry death, have to be pressed in service.34. In paras 19 and 20 of the judgment, the Supreme Court has further held as follows:-“19. It may be mentioned herein that the legislature in its wisdom has used the word “shall” thus, making a mandatory application on the part of the court to presume that death had been committed by the person who had subjected her to cruelty or harassment in connection with any demand of dowry. It is unlike the provisions of Section 113-A of the Evidence Act where a discretion has been conferred upon the court wherein it had been provided that court may presume abetment of suicide by a married woman. Therefore, in view of the above, onus lies on the accused to rebut the presumption and in case of Section 113-B relatable to Section 304-B IPC, the onus to prove shifts exclusively and heavily on the accused. The only requirements are that death of a woman has been caused by means other than any natural circumstances; that death has been caused or occurred within 7 years of her marriage; and such woman had been subjected to cruelty or harassment by her husband or any relative of her husband in connection with any demand of dowry.20. Therefore, in case the essential ingredients of such death have been established by the prosecution, it is the duty of the court to raise a presumption that the accused has caused the dowry death. It may also be pertinent to mention herein that the expression “soon before her death” has not been defined in either of the statutes. Therefore, in each case, the Court has to analyse the facts and circumstances leading to the death of the victim and decide if there is any proximate connection between the demand of dowry and act of cruelty or harassment and the death.”35. In Baijnath v. State of M.P., reported in (2017) 1 SCC 101 the Hon’ble Supreme Court, while referring to presumptions under Section 113B of Evidence Act, held that the presumption 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.36. What was necessary for the trial Court was to arrive at a finding whether prosecution evidence establishes the charge of cruelty soon before the death. The presumptions under Section 113B Evidence Act could have been drawn only when the elements of cruelty soon before the death would have been established. On an analysis of the law as reproduced above in the light of the facts of the present case it is found that the prosecution case regarding demand for dowry lacks credence in view of the incoherent depositions of PW1, PW2 and PW9 on the point of demand for cash. There is absolutely no corroboration either from any quarters that accused persons had demanded any cash or had made any unlawful demand from the deceased. Even if, for a moment a reliance is placed on the evidence of PW1 and PW9 regarding demand for cash, it is equally a categorical statement coming from their own mouth that such a dispute was settled in presence of villagers and the marital ties between the deceased and accused husband had resumed. The evidence of PW1 and PW9 are absolutely silent on the point that after the resumption of marital ties there was any unlawful demand made by the accused persons. If no demand was made after the resumption of marital ties, it hits out at one of the most essential attribute of Section 304-B IPC which provides that acts of cruelty must take place soon before the death of deceased. In view of the inherent improbabilities in the version of material witnesses PW1, PW2 and PW9, the allegations of demand of cash amount of Rs 30,000/- is found to be not reliable and consequently the essential ingredient of cruelty upon the deceased soon before her death stands not established.37. In view of the discussions, made above, this appeal deserves to allowed. Accordingly, the appeal is allowed.38. The order of conviction and sentence passed against the appellants by the impugned judgment are set aside. The appellants are set at liberty forthwith.39. Send down the LCR along with the copy of this judgment.

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