Gauhati High Court
Tomej Ali vs The State Of Assam And 4 Ors on 3 March, 2015
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Crl. Appeal 163 of 2014
Tomej Ali,
S/o. Kurpan Ali, R/o. Vill.- Kandakarpara,
P.S. & Dist.- Barpeta, Assam.
...........Appellant
-Versus-
1. The State of Assam, represented by Public
Prosecutor, Assam.
2. Harmuj Ali, S/o. Majibar Rahman.
3. Majibar Rahman, S/o. Late Bedasi Mia.
4. Rahima Khatun, W/o. Majibar Rahman.
5. Ali Hussain, S/o. Mazibur Rahman.
All are R/o. Vill.- Kandakarpara,
P.O. - Jashihatipara, (Ghilajari),
P.S. & Dist.- Barpeta, Assam.
..........Respondents
For the Appellant : Mr. A.R. Sikdar, Adv.
For the Respondents : Mr. D. Das, Addl. PP, Assam.
Mr. Alamgeer, Advocate.
Crl. App. 163 of 14 -oral dt. 03/03/15 Page 1 of 10
BCEFORE
THE HON'BLE MR. JUSTICE B.K. SHARMA
Date of hearing & Judgement: 03/03/2015
JUDGEMENT AND ORDER (ORAL)
1. Heard Mr. A.R. Sikdar, learned counsel for the appellant. Also heard Md. Alamgeer, learned counsel representing the private respondents. I have also heard Mr. D. Das, learned Addl. PP, Assam.
2. This appeal is against the judgement of acquittal dated 18/06/2013 of the learned Sessions Judge, Barpeta in Sessions Case No. 157/2011. By the said judgement, the accused persons/respondents have been acquitted from the charges under Section 498A/304(B)/302/34 IPC. According to Mr. A.R. Sikdar, learned counsel for the appellant that the learned trial Court has committed manifest error in fact and law in acquitting the respondents in the present appeal. On the other hand, Mr. Alamgeer, learned counsel for the accused persons/respondents submits that there being absolutely no material/evidence against the accused persons, the learned trial Court has rightly acquitted them and thus the impugned judgement needs no interference.
Crl. App. 163 of 14 -oral dt. 03/03/15 Page 2 of 10
3. I have considered the submissions made by the learned counsel for the parties and have also perused the entire evidence on record.
4. On 19/10/2010, the informant Tomez Ali, who is the appellant in the instant appeal, lodged an FIR with the Officer-in-Charge, Barpeta Police Station, stating therein that at about 2 (two) years back, the victim was given on marriage to accused Harmuj Ali and at the time of marriage he had given Rs. 7,000/- in cash and also gold ornaments as dowry articles. The allegation made in the FIR was that after the marriage, the accused persons, namely, Harmuj Ali, Majibar Rahman, Rahima Khatun and Ali Hussain, in furtherance of their common intention started torturing the deceased, who was his sister making dowry demand amounting to Rs. 50,000/-. Finding no alternative, he gave Rs. 30,000/- in cash but insptie of such payment, the accused persons continued to harass his sister physically and mentally. On 14/10/2007, he had gone to the house of the accused persons to bring her sister back home but was not allowed by the said accused persons but instead made further demand for payment of Rs. 20,000/- in cash. They also allegedly threatened that upon failure to do so, his sister would be killed by administering poison. Thereafter, on 16/10/2007, the accused persons committed murder of his sister by administering poison. Crl. App. 163 of 14 -oral dt. 03/03/15 Page 3 of 10
5. On receipt of the said FIR, Barpeta Police Station Case No. 752/2007 was registered under Section 304(B)/34 IPC and investigation was carried out. Witnesses were examined under Section 161 Cr.P.C., sketch map of the place of occurrence were prepared and the report was also obtained from Forensic Science Laboratory and so also the post mortem report. Be it stated here that prior to filing of the FIR, a regular FIR of UD case was registered as Barpeta PS Case No. 79/2007.
6. On conclusion of the investigation, charge sheet was submitted against he accused persons under Section 304(B)/34 IPC. The learned trial Court having framed charges against the accused persons under Section 498(A)/304(B)/302/34 IPC and the accused persons having pleaded not guilty of the said charges and claimed to be tried, trial commenced.
7. During trial, the prosecution examined 8(eight) witnesses including the I.O. and the Medical Officer. The accused persons were also examined under Section 313 Cr.P.C. The learned trial Court on the basis of the following points raised for determination, having answered the same towards acquitting the accused respondents, the informant has preferred this appeal.
(i) "Whether the accused since 2 years back of
14.10.2007 being respectively the husband,
father-in-law, mother-in-law and brother-in-law Crl. App. 163 of 14 -oral dt. 03/03/15 Page 4 of 10 of victim Sakina Khatun the sister of the complainant in your house at Khandakar para village in furtherance of common intention subjected her with cruelty with view to coercing her and to meet unlawful demand of dowry for an amount of Rs. 20,000/- (Rupees twenty thousand) ?
(ii) Whether the accused on 16.10.2007 at night death of Sakina Khatun the above victim was caused other than normal circumstances in their house within the seven years of her marriage with the accused (Harmuj Ali) and it is shown that soon before her death she was subjected to cruelty and harassment by all the accused furtherance of common intention with demand of dowry?
(iii) Whether the accused on 16.10.2007 at night at their house in furtherance of common intention, committed murder of Sakina Khatun the said victim by killing her by administration of poison?"
8. Referring to the evidence of PW-3, PW-5 and PW-6, Mr. Sikdar, learned counsel for the appellant submits that in view of their evidence, the learned trial Court committed manifest error of law and fact in acquitting the accused respondents. On this Mr. Alamgeer, learned counsel representing the accused persons submits that there is absolutely no evidence towards convicting the accused persons.
9. On perusal of the evidence on record, it is found that none of the witnesses implicated the accused persons in any manner warranting their Crl. App. 163 of 14 -oral dt. 03/03/15 Page 5 of 10 conviction under Section 498(A)/302/304(B)/34 IPC. PW-1 is the brother of the deceased who in his deposition only stated about the fact of giving on marriage his sister to the accused Harmuj Ali about two years back. According to him, on receipt of the information that his sister died in the house of the accused persons, he went there and found her lying on the ground. The accused Harmuj Ali along with his father Mujabar took her to Barpeta Civil Hospital where she was declared dead. In his examination-in-chief, he did not state anything regarding any dowry demand etc and also any torture being meted out to the deceased by the accused persons. In the cross examination, he simply stated that the FIR was lodged as per the advice of the village people.
10. PW-2 is another brother of the deceased who also in his deposition did not implicate the accused persons. He simply stated about coming to know about the death of his sister.
11. PW-3 in his deposition stated that upon hearing of noise he had gone to the house of the accused Harmuj Ali and saw his wife i.e. the deceased in unconscious state and something was coming out from her mouth. Thereafter, she was brought to Barpeta Civil Hospital where she was declared dead. In cross examination, he has categorically stated that both the accused and the deceased were living peacefully and cordially in their conjugal life.
Crl. App. 163 of 14 -oral dt. 03/03/15 Page 6 of 10
12. PW-4 is the Sr. Scientific Officer, FSL, Guwahati. He in his deposition stated that on 16/10/2008, while working as Scientific Officer in the Toxicology Division of FSL, Guwahati. On that day, he received a parcel from the Director in connection with Barpeta PS UD Case No. 79/2007, that was sent by the Superintendent of Police, Barpeta vide his letter dated 11/02/2008. On opening the parcel, he found 3 (three) exhibits which were marked by him as follows :-
"One plastic jar containing stomach and its content, part of lung and part of liver marked by him as Ext. No. TOX-86(a), TOX-86(b) and TOX-86(c) respectively. He carefully examined the above exhibits and found the following result.
No poisons were found in the exhibit no. TOX- 86(a), TOX-86(b) and TOX-86(c) respectively. He has proved and marked the FSL report as Ext-1, Ext-1(1) is his signature. Ext-2 is the forwarding letter of the then Director-cum-Chemical Examiner Dr. R.P. Gohain which is known to me."
13. PW-5 is the Doctor who conducted the post mortem on the dead body of the deceased and he found the following :-
"The deceased was a female of around 20 years old of fair complexion and average built wearing red blouse, green petty coat and red Sari, Rigor mortis fully developed. Mouth seen half open with bloody forth Crl. App. 163 of 14 -oral dt. 03/03/15 Page 7 of 10 dribbling out of both the nostrils and mouth and other organs are healthy and congested stomach and its contents, approximately 500 grams of liver tissue and one kidney preserved in statured solution of common salt and handed over to the Police constable for onward submission to F.S.L. for chemical analysis.
OPINION: In his opinion regarding cause of death is kept pending till receipt of the report of chemical analysis of viscera from Forensic Science Laboratory, Kahilipara, Guwahati. Time since death 6-12 hours."
PW-5 has proved the post mortem report as Exhibit-3.
14. PW-6 is another official witness, who conducted the inquest on the dead body of the deceased. In his testimony, he stated that while working as Circle Officer, Barpeta Revenue Circle, he held the inquest on the dead body of the deceased on the police request being identified by the family members, which was done in Barpeta Civil Hospital. During the inquest, he found the mouth of the deceased was half open with some bloody forth like substances coming out of the mouth of the deceased. He also noticed some red spots on the back of the deceased and the deceased was carrying one key on her waist. Thereafter in order to ascertain the exact cause of death, conducted post mortem examination on the dead body. Ext. 4 is the inquest report. Crl. App. 163 of 14 -oral dt. 03/03/15 Page 8 of 10
15. PW-7 and 8 are the IOs of the case. They in their deposition generally stated about the investigation that was carried out towards charge sheeting the accused persons.
16. It is on the basis of the aforesaid evidence laid by the prosecution, the appellant seeks conviction of the accused persons. According to the learned counsel representing the appellant, the evidence of PW-3, 5 and 6 are enough to convict the accused persons.
17. PW-5 upon examination of the dead body could not ascertain the cause of death of the deceased and accordingly viscera's of the deceased were preserved for medical analysis at the FSL and till then the report was kept pending.
18. As noticed above, the evidence of Medical Officer i.e. the PW-5 as well as the post mortem report (Ext.-3), clearly indicate that inspite of the post mortem examination of the dead body of the deceased, her cause of death could not be ascertained. Coupled with them, the PW-4 i.e. the Sr. Scientific Officer, FSL, Guwahati who examined the viscera's of the deceased, did not find positive test of poison and accordingly submitted the report (Ext.1).
19. From the above, it cannot be said to be a case of unnatural death. Coupled with this, none of the witnesses uttered a single word regarding any dowry demand and also torturing the deceased by the accused persons. The PW-1 totally contradicted himself in his evidence when the Crl. App. 163 of 14 -oral dt. 03/03/15 Page 9 of 10 same is compared with the FIR. PW-2 and 3 also failed to implicate the accused persons.
20. Above being the position, I see no reason to interfere with the impugned judgement of acquittal and consequently, the appeal stands dismissed.
21. Registry shall send down the case records to the learned Court below along with the copy of this judgement and order immediately.
JUDGE Sukhamay Crl. App. 163 of 14 -oral dt. 03/03/15 Page 10 of 10