Gauhati High Court
Majid Ali vs The State Of Assam And Anr on 25 February, 2020
Equivalent citations: AIRONLINE 2020 GAU 560
Author: Manish Choudhury
Bench: Manish Choudhury
Page No. 1/16
GAHC010169692016
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A. 51/2016
1:MAJID ALI
S/O LATE SORAP ALI, VILL. JOGIPARA, P.S. DHULA, DIST. DARRANG,
ASSAM.
VERSUS
1:THE STATE OF ASSAM and ANR
REPRESENTED BY COMMISSIONER and SECY. TO THE GOVT. OF ASSAM,
HOME DEPTT., DISPUR, GUWAHATI-6
2:MUSTT. HAJERA BEWA
W/O LATE SABED ALI
VILL. NO. 1 KUWARI PUKHURI
P.S. DALGAON
DIST. DARRANG
ASSAM
PIN 78411
Advocate for the Petitioner : MS.M DAS
Advocate for the Respondent : MR.B I KHANR-2
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
JUDGMENT AND ORDER (ORAL)
Date : 17-02-2020 Heard Mr. Azad Ahmed, learned counsel for the accused-appellant and Mr. B. B. Gogoi, learned Additional Public Prosecutor for the State of Assam.
2. This appeal under Section 374(2), Code of Criminal Procedure, 1973, (the CrPC, for short) is directed against the judgment and order dated 21.01.2016 passed by the learned Sessions Judge, Darrang, Mangaldoi in Sessions Case No. 21(DM)/2014. By the said judgment Page No. 2/16 and order dated 21.01.2016, the accused-appellant has been convicted under Section 304B, Indian Penal Code (the IPC, for short) and he has been sentenced to undergo rigorous imprisonment of 10 (ten) years and to pay a fine of Rs. 10,000/-, in default to make payment of fine, to undergo further imprisonment of 6 (six) months. Since the date of the said judgment and order, the accused-appellant is undergoing the sentence.
3. The prosecution case, as unfolded from the First Information Report (FIR) lodged by one Hajera Bewa (P.W.-1) on 19.04.2011 before the Officer In-Charge, Dhula Police Station, is to the effect that the daughter of the informant, Anjuwara Begum got married to the accused about 10/11 months earlier. The informant had alleged that since few days after the marriage the accused started torturing her daughter apart from making threats to kill her. On 19.04.2011, at about 1-30 p.m., the accused informed her that Anjuwara Begum had committed suicide by hanging. Later on, when she came to the house of the accused i.e. her son-in-law, she found the door of the room where her daughter was found hanging, was locked from outside and there were 2 (two) plastic chairs below the place of hanging. Suspecting that the accused and his mother after killing her daughter, had kept her daughter hanging the informant (P.W.-1) had lodged the FIR.
4. On receipt of the said FIR, the Officer In-Charge, Dhula Police Station registered a case being Dhula Police Station Case No. 56/2011, under Sections 304B/34, IPC and the investigation of the case was entrusted to P.W.-11. During the course of investigation, the Investigating Officer (I.O.), P.W.-11 visited the place of occurrence i.e. the house of the accused and prepared a sketch map (Ext.-7) of the place of occurrence. It is noticed that initially, one U.D. Case being Dhula U.D. Case No. 4/2011, was registered and after completing inquest on the dead body of the deceased in connection with the said U.D. Case, the dead body was sent for post-mortem examination on 19.04.2011. The post-mortem examination was done at Mangaldoi Civil Hospital on 20.04.2011 after receipt of the dead body on 19.04.2011 in connection with Dhula U.D. Case No. 4/2011. It has further emerged from the records that the informant (P.W.-1) had lodged the FIR, on 19.04.2011, at about 6- 50 p.m., at the police station. It was after lodgement of the said FIR by the informant, Dhula Page No. 3/16 Police Station Case No. 56/2011 (corresponding G.R. Case No. 1918/2011) was registered. During the course of investigation, the I.O. recorded the statements of the witnesses under Section 161, CrPC. After collecting the Post-Mortem-Examination Report (Ext.-2), a charge- sheet being Charge Sheet No. 68/2013 (Ext.-8) was submitted on 30.05.2013 finding a case well established, on the basis of the materials collected during the course of investigation, against the accused for commission of offences under Sections 304B/201, IPC. In so far as the mother of the accused is concerned, the I.O. did not find sufficient evidence as regards her complicity.
5. On submission of the charge sheet, the learned Judicial Magistrate, 1 st Class, Mangaldoi secured the presence of the accused and after compliance of the procedure prescribed under Section 207, Cr.P.C. by furnishing copies to the accused, the learned Magistrate committed the case i.e. G.R. Case No. 1918/2011 to the Court of Session, Darrang, Mangaldoi for trial finding the offences under Sections 304B/201, IPC to be exclusively triable by the Court of Session. The learned Public Prosecutor was accordingly notified with a direction to the accused to appear before the Court of Session. On receipt of the case records of G.R. Case No. 1918/2011, Sessions Case No. 21(DM)/2014 was registered. After hearing the learned Public Prosecutor and the learned defence counsel and upon perusal of the materials available in the records, the learned Sessions Judge found sufficient grounds to proceed against the accused for commission of offences under Sections 304B/201, IPC. Accordingly, the charges were framed against the accused. After framing the charges, the same were read over, interpreted and explained to the accused to which the accused pleaded not guilty and claimed to be tried.
6. During the course of trial, the prosecution had examined 11 (eleven) nos. of witnesses and exhibited 8 (eight) nos. of documents. The prosecution witnesses are :- P.W.-1 : Hajera Bewa, the informant; P.W.-2 : Hamid Ali; P.W.-3 : Billal Hussain; P.W.-4 : Afsar Ali; P.W.-5 :
Hanif Ali; P.W.-6 : Jaigun Nessa; P.W.-7 : Dr. Gopinath Borah; P.W.-8 : Musstt. Chandra Bhanu; P.W.-9 : Md. Saimuddin; P.W.-10 : Sri Bimal Konwar; and P.W.-11 : Md. Adraf Ali Ahmed. The Page No. 4/16 prosecution exhibits are :- Ext.-1 : Inquest Report; Ext.-2 : Post-Mortem Examination Report; Ext.-3 : Forensic Science Laboratory (FSL) Report; Ext.-4 : Final Report by P.W.-7 about cause of death after receipt of the FSL Report; Ext.-5 : FSL Report; Ext.-6 : FIR; Ext.-7 : Sketch Map; and Ext.-8 : Charge Sheet. After closure of the prosecution evidence, the accused was examined under Section 313, Cr.P.C. by putting to him all the incriminating materials found to have been deposed against him by the prosecution witnesses and his plea was that of denial. The defence declined to adduce any evidence. After appreciation of the evidence on record, the trial Court had convicted and sentenced the accused by the impugned judgment and order dated 21.01.2016, as indicated above.
7. Before making any deliberation on the rival submissions made by the learned counsel for the parties, it is apt to find out what the prosecution witnesses had deposed during the course of the trial.
8. P.W.-1 is the informant and the mother of the deceased. She deposed to the effect that after marriage, the accused used to assault her daughter regularly. At the time of marriage, several household articles were given to the family of the accused. Even when her daughter was 5 (five) months pregnant, the accused did not spare her from assaulting. The accused once wanted money from her and she after mortgaging her land, had given an amount of Rs. 50,000/- to the accused. When she got the information that her daughter committed suicide she went to the house of the accused and found her daughter hanging from the ceiling. She stated to have found one small container of poison nearby. She saw some liquid coming out from the mouth of the deceased. Accordingly, she lodged the FIR. During the cross- examination, she denied the suggestion that after the marriage, her daughter left the matrimonial home a number of times. P.W.-1 also denied the suggestions that her daughter was not interested in continuing the married life with the accused and that on the date of the incident, the accused was absent when her daughter committed suicide.
9. P.W.-2 had deposed that when the police conducted inquest on the dead body of the Page No. 5/16 deceased, he became witness to the Inquest Report (Ext.-1). In his cross-examination, P.W.-2 stated that on the date of the incident, one Rhino was found to have strayed into their village. Having known about the same, he proceeded to the place to see the Rhino and on his way there, he saw the deceased cleaning cow-dung in her homestead land. Later on, he stated to have met the accused on his way who was also going to see the Rhino. It was after 2 (two) hours, both he and the accused returned home and at that point of time, he came to know that the deceased had committed suicide. He further stated that the accused and the deceased had a peaceful conjugal life and he had no knowledge of any quarrel taking place between them and of exertion of cruelty by the accused upon the deceased.
10. P.W.-3 is a related brother of the deceased. On the date of the incident, he hearing the news of suicide of the deceased by hanging, went the place of occurrence and found the dead body of the deceased in a hanging position inside the house. It was police personnel who brought down the dead body of the deceased and in the Inquest Report (Ext.-1) prepared by the police, he signed as a witness. The defence declined to cross-examine this witness.
11. P.W.-4 is a neighbour to the house of the accused who used to know both the accused and the deceased. He also reiterated about the Rhino who strayed into their village on the date of the incident and about the villagers going to the place where the Rhino was spotted. When he was returning home after seeing the Rhino, he found a large gathering in the house of the accused. Going inside, he saw the dead body of the deceased hanging from the ceiling of the house. At that point of time, he stated that the bamboo door was locked from inside. The prosecution, at that stage, made a prayer to declare this witness as a hostile one and sought permission to cross-examine him. During the cross-examination, it was elicited from P.W.-4 by confronting with his previous statement and later on, by confirming through the I.O. (P.W.-11), that he stated before the police that the bamboo door of the house was found locked from outside. During cross-examination by the defence, he stated that in the morning hours of the date of the incident, he saw the deceased feeding her cows. He also saw the accused at the place where the Rhino had appeared. Being a neighbour, he had not seen the Page No. 6/16 accused ever harassing the deceased.
12. P.W.-5 is an uncle of the deceased. He had deposed that the accused used to assault the deceased demanding dowry. The same was disclosed to him by the deceased herself when he visited her. On 19.04.2011, he got the information from the accused over phone that the deceased died from hanging from the ceiling. Then he with his sister i.e. the informant (P.W.-1) and one Jaygun Nessa (P.W.-6), went to the house of the deceased wherein they saw that one room was locked from outside and the deceased was hanging inside the room. They saw the dead body from outside which was found hanging from the ceiling with the help of a plastic rope. During his cross-examination, P.W.-5 had deposed that he did not witness and he had not seen the accused assaulting the deceased but heard about it. He further feigned ignorance as to whether the accused was present in the house at the time of the incident. He found the accused at the house when he reached there. He further stated that even after knowing about the accused assaulting the deceased, police was never informed. He denied the suggestion that he was not aware as to whether the accused used to assault the deceased or not. The door and the house of the deceased were made of bamboo sticks and he stated that usually, door could be closed by locking it either from the outside or from the inside if the bamboo door is to be closed by using a chain. He denied that the deceased herself committed suicide by consuming poison. He had seen froth coming out from the mouth of the deceased and a bottle of poison nearby.
13. P.W.-6 is an aunt of the deceased, who came to know about the death of the deceased when she received a phone call from the accused. After receipt of the said information, she along with her husband, Sabbaj Ali went to the matrimonial home of the deceased and they found the house locked from outside. After breaking the lock when they entered into the room, they saw the deceased hanging with a plastic chair nearby. She further stated that she had knowledge about quarrels between the accused and the deceased as the accused used to demand bed, furniture, etc. In her cross-examination, she stated that before the death of the deceased she had heard from the deceased that quarrels used to take place between the accused and the deceased and the accused used to assault the deceased physically. As per Page No. 7/16 her, the door of the house of the accused was of bamboo. She admitted that in her previous statement recorded by the I.O., she did not state that two bottles were lying near the place where the deceased was found hanging.
14. P.W.-7, Dr. Gopinath Bora who was the then Deputy Superintendent at Mangaldoi Civil Hospital, conducted the post-mortem-examination on the dead body of the deceased in connection with Dhula Police Station U.D. Case No. 4/2011. On examination, on 20.04.2011, he found the following injuries :-
"Injury: A contusion of size about 5 cm x 4 cm of her middle of anterior fold of left exilla, one ligature mark present continuous transverse ligature mark of size 1 cm in width, 20 cm in length present over the thyroid cartilage. On section tissue underneath the ligature mark is contused. Thorax normal. Peritoneum and spinal cord healthy congested, abdomen normal, the external organs healthy, internal also healthy uterus containing a 5 months male fetus. Muscle, bone joints normal."
By preserving the viscera, P.W.-7 forwarded the same to the Forensic Science Laboratory (FSL), Assam, Guwahati for examination. He stated that the cause of death was kept pending till the receipt of the report of chemical analysis of viscera from the FSL. The FSL Report was received at a later point of time and the FSL Report showed positive test of organochlorine insecticide. As regards the cause of death, he opined that the cause of death was due to poisoning vide Ext.-4 dated 24.04.2013. The Post-Mortem Examination Report and the FSL Report were exhibited as Ext.-2 and Ext.-3 respectively.
15. P.W.-8 was a neighbour and a co-villager. Having heard about the death of the deceased, he went there and saw the deceased hanging inside the house of the accused but he was not aware about the reason. He stated that he did not see any quarrel between the accused and the deceased and the accused demanding any dowry from the family members of the deceased. On the date of the incident, he saw the deceased sweeping the courtyard of the house in the morning, when he had gone to see the Rhino which entered into their Page No. 8/16 village. He stated that the accused also went to see the Rhino and returned with him.
16. P.W.-9 like P.W.-8, is also a co-villager. He deposed that he did not see any quarrel between the accused and the deceased in their married life. On the date of the incident he had seen the deceased standing in the roadside. After coming home, he had heard that the deceased died by hanging. In his cross-examination, this witness stated that he did not hear anything about the accused committing assault on the deceased by demanding dowry from her parents.
17. P.W.-10 was the Senior Scientific Officer at the FSL, Toxicology Division, Directorate of Forensic Science, Assam who examined and analysed the viscera forwarded to him by P.W.-7. After examining the viscera, he found that the analysis had given positive test for organochlorine insecticide and opined the same vide his report as Ext.-5.
18. P.W.-11 was the Investigating Officer who deposed about the steps taken by him during the course of investigation, which have already been discussed above. He stated that he arrested the accused. Regarding the statement of the witnesses, it was elicited from him that P.W.-4 had stated before him that the door was made of bamboo and was locked from outside.
19. It is upon examination and appreciation of the above evidence led by the prosecution side, the trial Court had found the accused guilty of the charge under Section 304B, IPC. The accused was also charged under Section 201, IPC but he was acquitted of the said charge by the trial Court. Assailing such findings, this appeal has been preferred.
20. Mr. Ahmed, learned counsel appearing for the accused-appellant has submitted that evidence on record are not sufficient to bring home the charge, as defined under Section 304B, IPC, against the accused-appellant. He submits that from the evidence, it is apparent Page No. 9/16 that the prosecution side had failed to prove that the deceased was treated with cruelty for any demand of dowry. It has also emerged, he submits, that at the time of the incident, the accused-appellant was not present in his house. Though the allegation was made that the deceased had committed suicide by hanging but later on, it turned out to be a death caused due to consumption of poison. The ingredients of Section 304B, IPC are, thus, not satisfied in the sense that there was only a bald allegation by the informant i.e. the mother of the deceased and there is no other corroborative evidence which could at least indicate that there was any incident of assault at any earlier point of time.
21. Mr. Gogoi, learned Additional Public Prosecutor for the State of Assam has submitted that P.W.-1, the informant had stated in her testimony that the accused had taken money from her and she had given an amount of Rs. 50,000/- to the accused after mortgaging her land. Thus, he submits, there was demand for dowry on the part of the accused. The period between the marriage between the accused and the deceased and the death of the deceased was less than 7 (seven) years, as contemplated in Section 304B, IPC. He further submits that the body of the deceased was found hanging, whereas P.W.-7, the doctor on the basis of the FSL report, had opined that cause of death was due to poisoning. It is in such situation, there was a failure on the part of the accused to explain as to how the death of his wife had occurred inside his home and the onus on the part of the accused could not be said to be discharged. Therefore, the impugned judgment and order does not call for any inferences, he submits.
22. The learned counsel for the parties have referred to the decisions of the Supreme Court in (1) Mustafa Shahadal Shaikh vs. State of Maharashtra, reported in (2012) 11 SCC 397; (2) Bharat Bhusan and another vs. State of Madhya Pradesh, reported in (2014) 13 SCC 525; and (3) Sher Singh Alias Partapa vs. State of Haryana, reported in (2015) 3 SCC 724, which would be referred in the subsequent paragraphs.
23. Before making any appraisal of the merits of the rival submissions, it is appropriate to Page No. 10/16 extract the provisions of Section 304B, IPC which is with regard to dowry death :-
"304B. Dowry death. - (1) Where the death of a woman 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 for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Explanation.--For the purpose of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment of life"
24. Section 113B of the Evidence Act, 1872 which is also of relevance as it mentions about the presumption as to dowry death, reads as under : -
"113B. Presumption as to dowry death.--When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation.--For the purposes of this section, "dowry death" shall have the same meaning as in section 304B, of the Indian Penal Code, (45 of 1860)."
25. The ingredients of the offence under Section 304B, IPC have been observed by the Supreme Court in the decision in Mustafa Shahadal Shaikh (supra) in the following words :-
"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. If the Page No. 11/16 abovementioned ingredients are attracted in view of the special provision, the court shall presume and it shall record such fact as proved unless and until it is disproved by the accused. However, it is open to the accused to adduce such evidence for disproving such compulsory presumption as the burden is unmistakably on him to do so and he can discharge such burden by getting an answer through cross- examination of the presumption of the prosecution witnesses or by adducing evidence on the defence side."
26. Keeping in mind the above ingredients of the offence of dowry death, when we consider the evidence brought on record by the prosecution in the instant case, it has emerged that the death of the deceased had occurred about 10/11 months after the marriage, thus, had occurred within a period of 7 (seven) years of her marriage. From the evidence on record, it has further emerged that the body of the deceased was found hanging from the ceiling in her matrimonial home. Some of the prosecution witnesses appeared to have seen the body of the deceased in such manner. On the other hand, from the testimonies of P.W.-7 the doctor who conducted the post-mortem examination and P.W.-10 who examined and analyzed the viscera, it is found that these 2 (two) witnesses had opined that their analysis resulted in positive test for organochlorine insecticide and the cause of death of the deceased was due to poison. The Post-Mortem Examination Report (Ext.-2) and the FSL Report (Ext.-3) have recorded such opinion. Thus, in the case in hand it cannot be said that the death of the deceased had occurred in normal circumstances.
27. If the death of the deceased at matrimonial home is caused by any burn or bodily injury or occurs otherwise than under normal circumstances within 7 (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 for dowry, such death shall be called 'dowry death', and such husband or relative shall be deemed to have caused her death. Now, it is to be seen that whether soon before her death, the deceased had been subjected to cruelty or harassment by her husband or any of her relative and whether such harassment was in connection with the demand of dowry. It is in that context, the expression "soon before her death" which under Section 304B, IPC and Section 113B, Evidence Act are required to be considered.
Page No. 12/1628. It is in her testimony as P.W.-1, the informant had stated that the accused once wanted money from her and she had given an amount of Rs. 50,000/- to the accused after mortgaging her land. Apart from the above, the informant (P.W.-1) did not give any specific details as to why the accused wanted money from her. It is not borne out from the testimony of P.W.-1 that after she had given the amount of Rs. 50,000/- to the accused, there was subsequent events of any mental or physical assault on the deceased. P.W.-3, a relative of the deceased, did not make any mention about demand of dowry from the accused. P.W.-5, an uncle of the deceased had admitted that he had only heard but did not see the accused assaulting the deceased at any point of time. He claimed no knowledge as to whether the accused used to assault the deceased, P.W.-6, an aunt of the deceased, had deposed that the deceased and the accused used to quarrel as the accused demanded bed, furniture, etc. In her cross-examination, she had stated that she had heard from the deceased that in the quarrels, the accused used to physically assault her.
29. On the other hand, there is another set of witnesses who are neighbours and/or co- villagers. P.W.-2 had stated that the deceased used to have a peaceful conjugal life with his husband and he had not seen any quarrel taking place between them. P.W.-4, a neighbour who was declared hostile by the prosecution, in his cross-examination by the defence, had stated that his house is situated in front of the house of the deceased and he had seen the accused ever harassing his wife in any manner. P.W.-8, another neighbour, had stated that there was no demand from the accused for any articles, etc. to the house of the deceased. P.W.-9 had stated that he had not seen any quarrel between the accused and the deceased and any assault upon the victim, demanding dowry from her parents. four witnesses - P.W.-2, P.W.-4, P.W.-8 and P.W.-9 - are not related to the deceased in any manner. There is no reason to discard the veracity of their testimonies in an outright manner.
30. Even if it is assumed for a moment that there was at one point of time the accused wanted money from the mother of the deceased, then the relevant issue required to be considered is whether such demand on the part of the accused fulfils the test of proximity so as to come within the expression "soon before her death". It is apt to refer the observations Page No. 13/16 made in this regard by the Supreme Court in Mustafa Shahadal Shaikh (supra) which reads as under :-
"11. 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. In fact, the learned counsel appearing for the appellant submitted that there is no proximity for the alleged demand of dowry and harassment. With regard to the said claim, we shall advert to the same while considering the evidence led in the prosecution. 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. These principles have been reiterated in Kaliyaperumal v. State of T.N. and Yashoda v. State of M. P."
31. Even if the event where the accused wanted some money from the mother of the deceased at one point of time, which albeit is without any specific details of the same, is taken into consideration the same cannot be considered to have fulfilled the test of proximity. From the testimony of the P.W.-1 on record, it could be seen that accused only once wanted money and she gave the money of Rs. 50,000/- to the accused and for that purpose, she stated to have mortgaged her land. But P.W.-1 did not say that it was a demand and the consequence of non-fulfillment of his demand would be inflected upon the deceased.
32. In Sher Singh Alias Partapa (supra), it has been observed by the Supreme Court in reference to the expressions "it is shown" and "shall be deemed" use in Section 304B, IPC that the proper manner of interpreting Section 304B is that "shown" has to be read up to mean "prove" and the word "deemed" has to be read down to mean "presumed". If the word "shown" has to be given its ordinary meaning i.e. not amounting to "prove", then it would only require the prosecution to merely present its evidence in court, not necessarily through oral deposition, and thereupon to make the accused lead detailed evidence to be followed that of the prosecution. This procedure, the Supreme Court states, is unknown to common Page No. 14/16 law systems and beyond the contemplation of the CrPC. The use of the word "soon" finding place in Section 304B cannot be interpreted in terms of dates of months or years, but it indicates that the demand for dowry should not be stale and an aberration of the past but it should be the continuing cause for the death under Section 304B, IPC.
33. Mere statement that once an amount of money was given to the accused without any other specific details and without any further corroboration cannot be considered to have established that the same was in relation to a demand for dowry when P.W.1 had merely stated that the accused wanted money from her. There is no other evidence that the deceased has been subjected by the accused to cruelty or harassment for, or in connection with, in demand for dowry. The presumption under Section 113B, Evidence Act gets operational only on the proof of the fact that soon before her death the women had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry. The criminal liability under Section 304B, IPC is directed not just by the demand of dowry but by the act of cruelty or harassment by the husband or any relative or her husband in connection with such demand. Thus, till such point of time an act of cruelty or harassment is not proved to have caused by the accused to the deceased soon before her death in connection with the demand of dowry, the accused cannot be held to be liable for the offence of dowry under Section 304B, IPC with the assistance of the presumption under Section 113B, Evidence Act.
34. In the instant case, it is also not clear from the evidence on record that the death was a suicidal one or a homicidal one. It is not established as to how and under what situation the death of the deceased in the instant case had occurred. The death still remains under a cloud but the evidence on record brought by the prosecution cannot be held to be sufficient to come to an irresistible conclusion that the deceased was subjected to harassment or cruelty soon before her death in connection with any dowry demands and the death was in any relation to the demands of dowry.
Page No. 15/1635. Another aspect of the prosecution evidence requires consideration. On the date of the incident a Rhino appeared to have strayed into the village of the accused and on hearing the news, a number of persons had gone to the place where the said Rhino was spotted. P.W.-2, P.W.-4, P.W.-8 and P.W.-9 had referred to the event concerning the Rhino in their depositions. P.W.-2 had stated that when he was proceeding to the place where Rhino could be seen he saw the deceased cleaning cow-dung in front of the home and thereafter, he had gone to the place where the Rhino was spotted and there, he met the accused who had also gone there to see the Rhino and they had returned home together and to know the deceased was committed suicide. From the testimony of P.W.-2, it emerges that the accused had gone to the place to see the Rhino and he came to his house after about 2 (two) hours and it was within that duration of time, the death of the deceased had occurred. P.W.-4 had also spoken about the accused going to the place where the Rhino was spotted and finding the accused there. P.W.-4 also stated that he after returning from that place, he had seen the dead body of the deceased was hanging from the ceiling of the house. P.W.-8 like P.W.-2, had seen the deceased in the front of the house of the accused in the morning hours when he was on his way to see the Rhino spotted in their village. P.W.-8 had also stated that the accused had gone with him to see the Rhino and returned with him. P.W.-9 had also deposed that he had also seen the deceased on the roadside on the date of the incident. Thus, from these witnesses it has emerged that the accused was not in his house during the period when the death of the deceased had occurred. The prosecution witnesses belonging to the family of the deceased had all stated that it was the deceased who had informed them about the death of the deceased and on getting the news of the death when they reached the house of the accused they found the body of the deceased hanging from the ceiling inside the room. Thus, it can be noticed that the accused did not try to bring down the body of the deceased from the ceiling before informing the family of the deceased about the death.
36. It is for all these reasons, this Court is of the considered view that the prosecution has not brought on record to prove by any cogent and acceptable evidence that the deceased had been treated with cruelty soon before her death by the husband and or any of the relatives of the husband. The fact of death otherwise under normal circumstances, as in the instant case, Page No. 16/16 and within a period of 7 (seven) years of marriage cannot be held to be sufficient to bring home the charge under Section 304B, IPC against the accused in the instant case. In view of the discussions made above and in the light of the principles laid down in the decisions cited above, this Court finds that the prosecution has failed to bring the evidence which can be held to have fulfilled all the essential ingredients to bring the death of the deceased within the purview of dowry death found defined under Section 304B, IPC. Resultantly, this appeal deserves to be allowed. Accordingly, the impugned judgment and order dated 21.01.2016 passed by the learned Sessions Judge, Darrang, Mangaldai in Sessions Case No. 21(DM)/2014 is set aside and quashed. As a result, this appeal stands allowed. The accused be set forthwith at liberty, if he is not required in connection with any other case.
The records along with a copy of this judgment, are to be sent back forthwith.
JUDGE Comparing Assistant