Gauhati High Court
Md Sariful Islam @ Sariful Islam vs The State Of Assam And Anr on 11 December, 2018
Equivalent citations: AIRONLINE 2018 GAU 725, 2019 CRI. L. J. 1164, (2019) 195 ALLINDCAS 553 (GAU), (2019) 195 ALLINDCAS 553, (2019) 6 GAU LR 21
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
Page No.# 1/11
GAHC010211102015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A. 115/2015
1:MD SARIFUL ISLAM @ SARIFUL ISLAM
S/O MIRAJ ALI, R/O VILL. NADIRKASH, P.S. DALGAON, DIST. DARRANG,
ASSAM.
VERSUS
1:THE STATE OF ASSAM and ANR
2:ABDUL SAMAD
S/O LATE MAHAMMAD ALI
R/O VILL. NO. 2 MAHAB GOHAIN
P.O. BECHIMARI
P.S. UDALGURI
DIST. UDALGURI BTAD
ASSAM
PIN 78451
Advocate for the Petitioner : MR. M A SHEIKH
Advocate for the Respondent : MR. B. J. DUTTA, ADDL. PP, ASSAM
Date of hearing: 04.12.2018.
Date of judgment: 11.12.2018.
BEFORE
HONOURABLE MRS. JUSTICE RUMI KUMARI PHUKAN
JUDGEMENT AND ORDER (CAV)
Page No.# 2/11
Heard Mr. M A Sheik, learned counsel for the appellant and Mr. B J Dutta, learned Additional Public Prosecutor. None appears for respondent no.2.
(2) According to the prosecution case Anowara Begum was given marriage to the accused Sariful Islam and sufficient articles like furniture and household articles were given in her marriage but the accused and his parents and other in-laws being not satisfied with the quality of goods pressed Anowara Begum to bring good quality articles and although the said demand was satisfied by the father of the victim but the accused Sariful Islam by demanding a motor cycle tortured her. Both said Anowara Begum and Sariful Islam came to the house of the informant on 16.08.2010 and placed the demand for motor cycle and returned to their house and on the next day Anowara was found dead. The informant got the information that the accused Sariful and his parents killed Anowara by administering pesticide in her mouth, on the next day of leaving the house of the informant i.e. 17.08.2010. On facts the father of Anowara lodged the FIR on 18.08.2010. On the basis of the aforesaid FIR, Dalgaon PS Case No. 446/2010 u/s 498A/304B/34 was registered. The dead body was sent for post-mortem and after due investigation charge-sheet was submitted against the accused person Sariful Islam, Miraj Ali and Sakina Begum u/s 498A/304B/34 IPC. All the accused faced the trial and denied the charge framed by the learned Court u/s 498A/304B/302/34 IPC. (3) The prosecution examined 9 witnessed in support of the case including the medical officer and investigation officer and also the scientist who examined the internal organs of the deceased at FSL, Guwahati. At the conclusion of the trial, the learned trial Court held the accused Sariful Islam guilty u/s 498A/304B IPC and other accused persons were acquitted from the charge. Being aggrieved the present appeal has been preferred.
(4) I have heard the argument put forwarded by the learned counsel for both the parties. (5) Learned counsel for the appellant Mr. Sheik has strenuously argued that the learned trial Court has failed to appreciate all the necessary aspect of the case that the evidence on record is Page No.# 3/11 highly insufficient to prove the necessary ingredients of the offence u/s 304(B) or the offence of cruelty and the learned trial Court arrived at a conclusion of guilt only on surmises and concoction. The very basis of the prosecution i.e. the FIR is under serious attack. It has been pointed out as per FIR the deceased died of consuming poison which was administered by the accused but the said allegation is not supported by any oral evidence and the medical evidence negated the said allegation. The learned counsel has led this Court through the evidence on record and has urged that admittedly by the witnesses, the deceased and her husband maintained cordial relation till date and apart from some casual statement about demand of dowry, there is absolutely no evidence to indicate torture on the part of the accused and his family towards the deceased.
(6) On the other hand, the learned Addl. PP Mr. Dutta has justified the impugned judgment and order of conviction and has submitted that in view of the evidence on record regarding demand of furniture and motor cycle by the accused person and subsequent death of the victim otherwise then under normal circumstances, it can be held that the accused/appellant is perpetrator of the crime. It is contended that prior to her death, the deceased disclosed about the demand of dowry and the assault made by the accused, so the learned trial Court has rightly passed the impugned judgment and order and there is nothing to interfere.
(7) Bearing in mind the above submissions, this Court has carefully examined the evidence on record. The prime allegation in the FIR is that the accused tortured the deceased by demanding dowry and on 15.08.2010 the accused/appellant by demanding a motor cycle assaulted her and on 17.08.2010 she was killed by accused persons by administering pesticide in her mouth. Regarding the matter of dowry demand and the torture it is the evidence of the informant PW-2 Abdul Samad (father of the deceased), PW-1 Tazu Sheikh (neighbour) is that although at the time of marriage adequate furniture was given in the marriage Anowara but after few days of the marriage, Sakina (i.e. mother- in-law) and Miraj (i.e. brother-in-law) rebuked Anowara for low quality furniture which was disclosed by her father for which PW-2 provides some new furniture but again Sariful started to rebuke Anowara Page No.# 4/11 asking for motor cycle. One day Sariful and Anowara come to their house and stayed at his residence for the night when they asked for a motor-cycle and on the next day they left the house of PW-2 and in the afternoon he was informed by the accused/appellant that the Anowara consumed poison. Accordingly PW-2 sent his son Mannash/PW5 who found, that Anowara was taken in a pull cart to hospital and she died before treatment. The PW-1 also stated the same version and both of them has admitted in the cross-examination that both Anowara and Sariful asked for the motor cycle from PW-2 on the day prior to her death when she came to their house. Further PW-2 has not uttered any word about the torture or harassment upon the deceased by the present accused appellant. PW-1 who is an outsider has said a further line that accused/appellant and his mother assaulted her without mentioning the time, manner of such assault and tried to project a picture about torture. PW-1 also stated that on the very next day when the accused and Anowara left the house of PW-2, they came to know about the death of Anowara by consuming poison and he went there along with Mannash (PW-
5) and took Anowara to the doctor.
(8) The other witness PW-3 (Md. Ali) and PW-4 (Md. Kuddus Sheikh), co-villagers simply narrated the facts that they heard from PW-2 that the accused person raised objection about the quality of articles given in the marriage for which the PW-2 provided new furniture. They also heard that there was quarrel between the husband and wife and accused Sariful demanded a motor cycle from PW-2. From their evidence, it also emerges that both the accused/appellant and deceased Anowara came to the house of PW-2 prior to the day of her death and on the very next day Anowara died. The evidence of PW-3 is relevant while he said in cross-examination that on the day when both Sariful and Anowara came to the house of PW-2 he heard their conversations being an adjacent neighbor, when PW-2 rebuked Anowara for demanding motorcycle.
(9) Brother of the deceased Mannash Ali/PW-5 and Unush Ali/PW-7 and PW-9/Resia Khatun (sister of the informant) have given similar testimony as that of their father/PW-2 that after few days of the marriage the accused person rebuked his sister Anowara for giving poor quality of furniture in Page No.# 5/11 the marriage for which his father provides some furniture and lastly when Anowara and Sariful come to visit their house and spent a night in their house when the Sariful asked for a motor cycle to which his father shows his inability and on the next day morning they left their house and in the afternoon they heard that Anowara had consumed poison. PW-5 went there and saw Anowara lying on a pul cart and he brought her to Mangaldoi hospital on a vehicle but on the way she died. PW-6 and PW-9 further stated in cross-examination that till the death of Anowara they maintained cordial relationship with them and they also maintained similar relationship and both the families have never had any strain relationship prior to death of Anowara and they often visited the house of the accused and they reciprocated.
(10) The above evidence led by the prosecution reveals that showing annoyance over the poor quality of furniture the accused rebuke his wife/the deceased and when the same was apprised to her father then her father, purchased some more furniture and provided it to them. Even if same is termed as demand but same was not associated with any sort of torture so as to implement the demand so as to constitute cruelty and harassment. To constitute an offence u/s 304(B) following ingredients of the offence is to be proved:
(i) That the accused has committed the dowry death of a women.
(ii) The women was subjected to cruelty or harassment by her husband or her relatives.
(iii) Such cruelty or harassment was for, or in connection with any demand for dowry.
(iv) Such cruelty or harassment was soon before her death.
(11) The prosecution u/s 304 (B) IPC has to prove the ingredients of the offence andcannot escape from the burden of proof that the harassment and cruelty was related to the demand of dowry and same was caused soon before her death. The word "dowry" is to be understood as it defined in Sec. 2 of the Dowry Prohibition Act, 1961. Thus, there are 3 (three) occasions related to dowry, that is before marriage, at the time of marriage and at an unending period. To attract the provision of Sec.
304 (B) one of the main ingredient of the offence which is required to be established is that "soon Page No.# 6/11 before her death" she was subjected to cruelty and harassment "in connection with demand of dowry". The expression "soon before her death" used in the substantive Sec. 304 (B) IPC and Sec. 113 (B) of the Evidence Act is present with the idea of proximity text. The determination of the period which can come within a term "soon before" is left to be determined by the Court depending upon the facts and circumstances of each case. Suffice, however, to indicate that the expression "soon before"
would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of proximate and live link between effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the women concerned it would be of no consequence.
(12) A perusal of Sec. 304 (B) clearly shows that if a married women dies otherwise than under normal circumstances within 7 years of her marriage and it is shown that she was subjected to cruelty or harassment, soon before her death, by her husband or any relative of her husband in connection with the demand of dowry, such death shall be called "dowry death" and such husband or relative shall be deemed to have caused the death.
(13) Having regard to the mandate of the provision u/s 304(B) if we analyse the evidence on record it would go to show that all the witnesses that is the father, brothers and relative of the deceased have simply stated that the victim was rebuked(language not disclosed) by the accused for bringing inferior quality of furniture and there is absolute lack of evidence to show that the petitioner was subjected to any physical and mental harassment so as to constitute cruelty within the meaning of Sec. 498A IPC which is another ingredient in both the offences to assess torture. The witnesses as discussed above has stated that till death of the Anowara Begum both the families have cordial relationship and was in visiting terms and nothing emerges to hold that the accused made the dowry demand within the meaning of the Act.
Page No.# 7/11 (14) On the next, certain amount of evidence surfaced indicates otherwise which may be a ground for death of the deceased. Obviously, it is a case where the cause of death could not be established. The doctor who performed the post-mortem examination could not give any opinion about cause of death of the deceased, although the internal organs of the deceased were sent for FSL examination but on examination by FSL, it was found that internal organs were devoid of any poison and on the basis of the report of FSL, it has been concluded that the cause of death of the deceased was due to cardiac failure. The evidence of PW-6 Durgeswar Sharma, Senior Medical and health Officer, Mangaldoi Civil Hospital and Samudra Baishya/PW7, Deputy Director of FSL, Gueahati are relevant. There is no findings about injury on the person of deceased at the time of post-mortem examination also. Even the witnesses who happened to see the dead body of the deceased while taking her to hospital they did not notice any injury on her person. All the aspects negate any hypothesis that the deceased was subjected to injury or torture prior to her death. More so, it is also evident on record that brother of the accused found deceased's sister was taken to hospital by the family members of the accused which will also indicate that they tried to save the deceased. (15) Taking into account all cumulative effect of the case in hand while there is no evidence as to the cause of death and in view of the other evidence as discussed above, suffice is to conclude that there was no cruelty or harassment soon before her death. Moreso as alleged in FIR there is no evidence that on 18.08.2010, deceased was assaulted by accused whereas deceased was in the house of the informant prior to her death and there was no any report of assault etc. upon the deceased by accused on that day.
(16) Another important aspect that has come into light to create shadow of doubt as to the cause of death of the deceased which can be pointed out to the informant himself. As has been stated by the informant and his other two witnesses that prior to the day of incident the deceased and her husband/accused came and stayed in the house of the informant without any disruption and it is said that both the deceased and her husband (accused) raised the demand of motor cycle for which the Page No.# 8/11 informant even rebuked her. In such eventuality, it may also be plausible reason on the part of the victim that due to the denial of her father to give the motor cycle as demanded by her and her husband, out of frustration there was heart attack for which she died. It may be noted here that after staying in the house of the informant without any untoward incident, not to speak of harassment, the victim women was found dead in her matrimonial house on next day. Although it may not be a normal circumstance as to how she died but while the vital ingredients of the offences are not proved by prosecution as indicated above it will not be proper to jump to the conclusion about the guilt of the accused merely because one time he preferred to demand a motor cycle from the informant. (17) Regarding the expression about the low quality of the furniture given in the marriage the same cannot be equated with the dowry demand. Having regard to the matters on record this Court is of opinion that the trial Court has not appreciated the evidence in proper perspective of law and facts and it is a settled principle of law a charge is to be proved by prosecution beyond all reasonable doubt. On the failure on the part of the prosecution to discharge his burden, the benefit of same will lean in favour of the accused. Many a times it is found that the cause of death of a person could not be adequately brought on record, may be because of complex human behaviour, which has happened in this case. In the instant case the basic allegation that the deceased died by consuming poison is nullified by the medical evidence and as per oral, as well as medical evidence, there was no mark of injury on the person of deceased.
(18) Sec. 304-B IPC relates to dowry death, which reads as follows: 304 B. Dowry death.- -(1) Where the death of a women is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it 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 demand of dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Page No.# 9/11 Explanation:- For the purposes of this sub-section, "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act,1961 (28 of 1961).
(19) The expression soon before her death is used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act. No definite period has been indicated and the expression soon before her death is not defined. The determination of period which can come within the term soon before is left to be determined by the Court depending upon the facts and circumstances of each case.
(20) In the context of the Explanation 2 to Section 113(B) the word 'dowry death' has to be understood in relation to the word 'dowry' as defined in Section 2 of the Dowry Prohibition Act, which reads as under:
Section 2 definition of 'dowry' - Dowry means any property or valuable property given or agreed to be given either directly or indirectly.
(a) By one party to a marriage to the other party to the marriage, or
(b) By the parents of either party to a marriage or any other person, or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom Muslim Personal Law(Shariat) applies.
(21) The presumption u/s 113-B of the Evidence Act with respect to dowry death can be raised only on the proof of the following four essential conditions.
1) The women was subjected to cruelty or harassment,
2) by the husband or his relatives:
3) for or in connection with any demand for dowry;
4) soon before her death.
(22) Section 113-B of the Evidence Act reads as under: 113 B. Presumption as to dowry death.
When the question is whether a person has committed the dowry death of a woman and it is shown Page No.# 10/11 that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand of dowry, the Court shall presume that such person had caused the dowry death.
Explanation. For the purpose of this section, dowry death shall have the same meaning as in section 304B, of the Indian Penal Code, (45 of 1860) (23) In Gurdip Singh Vs. State of Punjab 2013 (10) SCC 395 it has been held that though the expression "presumed" is not used under Section 304-B IPC, the words "shall be deemed" under Section 304-B carry, literally and under law, the same meaning since the intent and context requires such attribution. Section 304-B IPC on dowry death and Section 113-B of the Evidence Act, 1872, on presumption, were introduced by the same Act i.e. Act 43 of 1986, with effect from 19-11-1986, and Section 498-A IPC and Section 113-A of the Evidence Act were introduced by Act 46 of 1983, with effect from 25-12-1983. The amendments under the Evidence Act are only consequential to the amendments under the Dowry Prohibition Act, 1961 and the Indian Penal Code. It is significant to note that under Section 113-A, the expression is "court may presume" whereas under Section 113-B, the expression is "court shall presume". Parliament did intend the provisions to be more stringent and effective in view of the growing social evil as can be seen from the Statement of Objects and Reasons in the amending Act. Being a mandatory presumption on the guilty conduct of an accused u/s 304-B, it is for the prosecution to first show the availability of all the ingredients of the offence so as to shift the burden of proof in terms of Section 113-B of the Evidence Act. Once all the ingredients are present, the presumption of innocence fades away.
(24) The Apex Court further held in Bipin Jaiswal Vs. State of Andhra Pradesh 2013 (3) SCC 684 that in any case to hold the accused guilty of both the offences u/s 304B and 498A IPC the prosecution is required to prove beyond reasonable doubt that deceased was subjected to cruelty or harassment by the accused.
Page No.# 11/11 (25) Having carefully gone through the entire evidence as discussed above and bearing in mind the legal provisions as mentioned above, this Court is not inclined to accept the findings arrived at by the trial Court as the evidence on record is far below the requirement to prove the ingredients of the offence u/s 304B IPC. Even for drawing the presumption u/s 113B of the Evidence Act for a dowry death, the prosecution needs to prove beyond reasonable doubt that the victim was subjected to cruelty soon before her death but there is no legal evidence to prove the same. Resultantly, the conviction and sentence of the appellant cannot be sustained. Accordingly the appeal is allowed and the impugned judgment and order is hereby quashed and set aside. Accused is set at liberty forthwith.
(26) Send down the LCR along with the copy of judgment.
JUDGE
Comparing Assistant