Dilip Kumar Sinha, J.@mdashThis Cr. Appeal is directed against the judgment of conviction dated 30.04.2001 and order of sentence dated 01.05.2001 recorded by Shri Abdul Samad, Vth Additional Sessions Judge, Palamau at Daltonganj by which the appellants have been convicted under Sections 304B/34 of the Indian Penal Code. The appellants Nos. 1 & 2 were sentenced to undergo Rigorous Imprisonment for a period of 10 years whereas Rigorous Imprisonment for a term of 7 years each was awarded to the appellants No. 3 & 4.
2. The prosecution story that stands recorded in the Fard Bayan of the informant Ali Hussain speaks that his daughter Ambia Bibi was married to the appellant Ashraf Ansari in the year 1991 and on the eve of marriage the informant had presented several articles according to his capacity to his son-in-law. However, after some time of the marriage, he was called for by his "Samdhi" Umar Ansari (an accused who died during trial) and when he visited the matrimonial home of his daughter Ambia Bibi, the informant was confronted with his "Samdhin" Masira Bibi (she being an accused also died during trial), son-in-law and brother of the son-in-law, who unanimously demanded one Radio failing to which he was threatened that his daughter would be deserted. Complying the demand of the accused, the informant delivered a Radio to them. After some time, he was again called for and this time all the appellants including Saleha Khatoon and Saida Bibi expressed that nothing substantial was given on the eve of the marriage of his daughter, as such, they demanded Rs. 10,000/-, a T.V., and a cartfull of articles and only then Sabia Bibi would be allowed to stay there at her matrimonial home otherwise her dead body would be thrown after committing her murder and Ashraf Ansari would be remarried. The informant expressed his inability to fulfill such demand on account of his poverty which ignited the appellants and the other accused who asked him to leave the place by extending threat that he should now forget his daughter. On 14.06.1995 in the morning at about 6.30 a.m. the informant being scared of the misconduct of the accused persons when visited the matrimonial home of his daughter, he did not find any of the inmates there and all the doors of the house were found open. On query, he gathered from the neighbours that all the members of the family had already left the house after committing murder of his daughter. The informant then immediately went inside and found his daughter hanging with the plastic rope of green colour tied around her neck and she was dead. He came to learn from one Shailesh Mistri that on 13.06.1995 at about 12 O''clock he had visited the shop of one Inayet Ansari situated adjacent to the house of Umar Ansari and witnessed the appellants and the other accused assaulting Ambia Bibi with kicks and fists as also by sticks and when he interfered, he was also assaulted by them. The informant had, therefore, reason to believe that his daughter was killed in the night of 13/14.06.1995 by the appellants and others only because of non-fulfillment of their demand of dowry and thereafter she was hanged by giving a colour of suicide. In the meantime the police arrived, recorded the Fard Bayan of the informant on 14.06.1995 at about 10 hours at the matrimonial home of the deceased and thereby registered Chainpur P.S. Case No. 55 of 1995 for the alleged offence under Sections 302/34 of the Indian Penal Code as also u/s 3/4 of the Dowry Prohibition Act against the appellants and other co-accused persons. However, after investigation, the police submitted charge-sheet under Sections 304B/120B of the Indian Penal Code. After framing of charge under Sections 304B/120B of the Indian Penal Code, and after conclusion of prosecution evidence the appellants were examined and their statements were recorded u/s 313 of the Code of Criminal Procedure by confronting the materials produced in course of trial. Their defence was of false implication and innocence and that the instant case was instituted only because the informant had demanded the ornaments of his deceased daughter which was not returned to him. That they had neither demanded dowry from him nor she was ever tortured to death. It was their defence that the informant wanted ''Talaq'' of his daughter from his son-in-law to which she did not concede and that she was compelled by such circumstances and there was no way out except to commit suicide in order to get rid of the problems she was facing in her life.
3. The prosecution examined altogether 13 witnesses and out of them P.W. 2 Mohamaddin Ansari and P.W. 12 Dhani Mian were tendered by the prosecution. The other witnesses such as P.W. 1 Sattar Khalifa, P.W. 3 Inayet Hussain, P.W. 4 Rahamuddin Ansari, P.W. 5 Shailesh Mishtry and P.W. 11 Imamuddin were unfavourable to the prosecution hence declared hostile. P.W. 9 Dr. John F. Kennedy had examined the injuries on the person of Shailesh Mishtry (P.W. 5) whereas P.W. 10 Dr. Krishna Murari Sah had held autopsy on the body of Ambia Bibi. P.W. 13 Manohar Ram was the Investigating Officer, who filed charge-sheet and the other material witnesses were P.W. 8 Ali Hussain (informant himself), his wife P.W. 6 Shahidan Bibi and his son P.W. 7 Mubarak Hussain.
4. While recording the judgment, the Trial Court discussed the ingredients for constituting an offence u/s 304B of the Indian Penal Code viz.;-
(i) The death of a woman should be caused by burn or bodily injury or otherwise than under normal circumstances.
(ii) Such death should have been occurred within 7 years of her marriage.
(iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband.
(iv) Such cruelty or harassment should be for or in connection with demand of dowry.
(v) Such cruelty or harassment is shown to have been meted out to the women soon before her death.
5. The prosecution was required to satisfy all the above ingredients for shifting the burden upon the accused facing charge u/s 304B I.P.C. and only then a presumption could be drawn u/s 113B of the Evidence Act.
6. Advancing his argument, learned Sr. Counsel Mr. P.P.N. Roy submitted that there was not a single eye-witness of the alleged occurrence of assault and hanging of the deceased after putting a plastic rope around her neck after committing her murder. The informant P.W. 8 Ali Hussain i.e. the father of the deceased did not claim to be the eye-witness. He admitted having derived information from P.W. 5 Shailesh Mishtry about the alleged assault but Shailesh Mishtry was unfavourable to the prosecution in his testimony. The material witnesses that were available on the record were P.W. 6 Shahidan Bibi mother of the deceased, P.W. 7 Mubarak Hussain i.e. the brother of the deceased and the informant P.W. 8 Ali Hussain, i.e. the father of the deceased. P.W. 6 Shahidan Bibi in her testimony was not definite about the period of marriage of her daughter Ambia Bibi since her death. She admitted that when her daughter was not allowed by her in-laws to come to her parental home, this witness visited her matrimonial home where her in-laws demanded Rs. 10,000/- and other articles. Similar demand was also made to her husband when he was called upon to visit there. She testified that she was communicated by her husband that the in-laws of their daughter had asked to deliver Rs. 10,000/- and cartfull of articles lest he would lose his daughter. Her husband again visited, who spotted that his daughter was hanged by roof with the help of rope after committing her murder. The case was instituted by her husband and the dead body was delivered to them from the Hospital and they buried the dead body. In the cross-examination, she admitted that she had not stated before the police that the accused persons had demanded dowry when she had first visited the matrimonial home of her daughter. She further admitted during cross-examination that the other accused persons were not known to her except her son-in-law and that she identified the other accused only after 2 1/2 months of the institution of the case and that her husband had got them identified to her. In the Court question she testified that her daughter was subjected to cruelty at her matrimonial home to which she used to be communicated but such incident did not take place in her presence.
7. P.W. 7 Mubarak Hussain, the brother of Ambia Bibi testified that the accused persons including the appellants had been demanding Rs. 10,000/in cash, a T.V. and cartfull of articles when he had once visited her matrimonial home. The accused persons had threatened that lest he would lose his sister. The witness had expressed inability before them to fulfill their demand but his father had given a Philips Commander Radio on the eve of the marriage of his sister. The witness further admitted that realizing her pains and sufferings at her matrimonial home, she was advised to divorce her husband but she refused by saying that she would adjust by tolerating her all sufferings and would not go anywhere. She was killed by accused persons. In the cross-examination, the witness admitted that a "Panchayati" was convened as against the demand of dowry by the accused persons presided by the Sadar of the Anjuman of village Buri Mir attended by a number of persons of the said village. He further admitted that no resolution could be made in writing. His father wanted that his daughter should return back after pronouncement of ''Talaq'' for her well being and for that the Panchayati was held but of no avail.
8. Mr. Roy, learned Sr. Counsel submitted by summing up the statement of P.W. 6, P.W. 7 and P.W. 8 referred to hereinbefore that none of them had alleged about the perpetration of cruelty or any kind of torture except the threat that was extended to them. Yet, there is no eye-witness of the allegation of extending threat by any of the appellants against the said witness. P.W. 6 Shahidan Bibi had alleged against all the appellants including the father-in-law and mother-in-law of the deceased who had been demanding the alleged dowry and so was the case with the appellants and Mubarak Hussain i.e. the brother of the deceased. It would be relevant to mention that P.W. 8 Ali Hussain i.e. the informant and the father of the deceased was specific in paragraph Nos. 7 & 8 under cross-examination admitted that he had delivered the Radio to his son-in-law at the time of ''Bidai". It was given happily but he admitted that he could not disclose the day or month of the alleged demand of Rs. 10,000/- and T.V. and that the said demand was made to him by his son-in-law while he was alone in the house. It can well be inferred from the testimony of the informant P.W. 8, referred to here-in-before that demand of dowry was made only by the son-in-law according to this witness and he was the ultimate beneficiary of the alleged demand which could not be corroborated by any other material witness.
9. Advancing his argument Mr. Roy, learned Sr. Counsel, submitted that autopsy on the body of Ambia Bibi was held by P.W. 10 Dr. Krishna Murari Sah who found ligature mark in complete high up in the neck 1.5 cms width between the chin and paymix. The groove was hard. Ligature mark was noncontinuous on the right side and the saliva was coming out from the left angle of the mouth. Echhymosis was present in the margin of the groove of the ligature mark when was found on dissection and in the opinion of the Doctor death was due to asphyxia resulting from hanging when called upon the Doctor suggested that the strangulation could also be the cause of her death. The time elapsed since death was assessed between 6 to 48 hours. The witness further stated that no sign of internal or external injury was present on her person.
10. Mr. Roy, learned Sr. Counsel submitted that the postmortem report totally negatived the prosecution case that she was first assaulted, done to death and then the dead body was hanged from the ceiling of the roof with the help of rope. At best it could be a case of suicide for the reasons best known to the deceased. If at all there could be allegation of demand of dowry, such allegation was directed against the appellant-husband. Similarly, there was no evidence at all on the record that Ambia Bibi was subjected to physical or mental harassment by the other appellants. The prosecution miserably failed to prove the charge under Sections 304B/34 of the Indian Penal Code against the appellants but the Trial Court on erroneous consideration without appreciating the fact that there was no material at all against the appellants convicted them for the alleged charge which calls for interference of this Court in appeal.
11. Concluding his argument Mr. Roy, learned Sr. Counsel submitted that though the medical evidence negatived any pre-mortem injury on the person of the deceased but the appellants were highly prejudiced that they were confronted with such materials which was never brought on the record in course of trial. The appellants were confronted that they had committed murder of Ambia Bibi and thereafter her dead body was hanged with the ceiling of the roof to give a colour of suicide. The defence witness D.W. 1 Imteyaz Ahmad was produced and examined on behalf of the appellants, who testified that he along with the other accused persons had removed Saida Bibi wife of Faruque Ansari to the Primary Health Centre, Chainpur on 11.06.1995 and she was attended by Dr. Abhinash Chandra Sinha. On the same day in the evening a male child was born to her and she was admitted to Chainpur Hospital as indoor patient. She was accompanied in the hospital by the sister of Faruque Ansari Saleha, Faruque Ansari himself and the husband of Saleha Rafique total four persons. A certificate was issued by Dr. Abhinash Chandra Sinha regarding birth of a child, which was proved and marked as Ext. 8. The prescriptions were separately proved and marked as Ext. B & B/1. In this manner it could be proved that on 11.06.1995 a male child was born to the appellants Saida Bibi wife of the appellant Faruque Ansari and that they were present in the Hospital along with Saleha Khatoon, wife of Rafique Mian and Faruque Ansari. Saleha Khatoon is also an appellant in the instant appeal and all the appellants have been falsely implicated in the instant case. The appellant Ashraf Ansari and Faruque Ansari have already served out 8 years of their imprisonment in judicial custody against their conviction of 10 years and considering their long detention both were admitted to bail during pendency of this appeal and if remissions could be taken and calculated on their overall detention the appellants Ashraf Ansari and Faruque Ansari have practically served out the entire period of sentence to the extent of 10 years, therefore, the alternative prayer would be that in case of dismissal of appeal the sentence awarded to the appellants may be commuted to the period already undergone by them in judicial custody.
12. Miss. Anita Sinha, A.P.P. opposed the contention advanced on behalf of the appellants and submitted that the prosecution could be able to prove all the ingredients for constituting charge u/s 304B/34 of the Indian Penal Code against all the appellants. No reason has been assigned by the Trial Court for discrepancy in awarding sentence since charge against all the four appellants were similar which could be proved beyond the reasonable doubt. Marriage between the appellant Ashraf Ansari and Ambia Bibi was found to be held within 7 years of death of Ambia Bibi as the marriage was held in the year 1991 and the dead body was found hanging with the ceiling of the roof in the night intervening 13/14.06.1995. Fard Bayan of the father of the deceased was recorded on 14.06.1995 at the matrimonial home of the deceased by the Chainpur Police. The chain of circumstances unerringly pointed guilt of the appellants who committed dowry death of Ambia Bibi in furtherance of common intention with the co-accused. The medical evidence substantiated the charge that strangulation of Ambia Bibi prior to her death could not be ruled out and the appellants failed to discharge their burden which was shifted upon them u/s 113B of the Evidence Act.
13. Having regard to the facts and circumstances of the case, appreciation of the evidence produced and adduced on behalf of the prosecution discussed here-in-before, I find that death of Ambia Bibi a woman was caused otherwise than under normal circumstances as her dead body was found hanging by the informant P.W. 8 Ali Hussain with the ceiling of the roof with the help of a plastic rope and in the opinion of the Doctor P.W. 10 Dr. Krishna Murari Sah, who held autopsy on the body of the deceased, asphyxia was the cause of death due to hanging and he did not rule out the possibility of strangulation prior to death. Admittedly, no external or internal injury was found on the person of the deceased. The prosecution could be able to prove that marriage of Ambia Bibi with the appellant Ashraf Ansari was held in the year 1991 as such the death occurred within 7 years of her marriage. All the three material witnesses P.W.6 Shahidan Bibi, P.W. 7 Mubarak Hussain and P.W. 8 Ali Hussain were consistent that there was persistent demand of dowry by the in-laws soon before her death and for that she was subjected to mental harassment. At occasion "Panchayati" was held for resolution of disputes and differences between the husband and wife. P.W. 7 Mubarak Hussain i.e. the brother of the deceased was consistent that his father P.W. 8 Ali Hussain wanted ''Talaq'' of his daughter from her husband appellant Ashraf Ansari on account of prevailing disputes but Ambia Bibi was not inclined as she wanted to adjust with the undergoing situation which could cause fatal to her. The informant P.W. 8 Ali Hussain was more specific that it was the son-in-law Ashraf Ansari, who had demanded dowry from him to which he did not implicate any other appellants for the alleged demand of dowry and therefore, the Court has reason to believe that the ultimate beneficiary was the husband Ashraf Ansari alone who demanded dowry. The allegations against the other appellants and the co-accused, who died during the pendency of the trial, was general and omnibus without specific overtact there being attributed against any of them. P.W. 6 Shahidan Bibi mother of the deceased testified that it were the father-in-law and mother-in-law who were demanding dowry but later on during cross-examination she conceded that she did not identify any of the in-laws of her deceased daughter except her son-in-law Ashraf Ansari. I find from the facts and circumstances of the case that the charge u/s 304B is proved only against the husband Ashraf Ansari and a reasonable doubt is created as to the complicity of the other appellants who have been convicted u/s 304/34 of the Indian Penal Code. There appears merit in this appeal in so far it relates to the remaining appellants Faruque Ansari, Saleha Khatoon & Saida Bibi and therefore, they are acquitted from their conviction, order of sentnce and their bail bonds stand discharged. Accordingly, this appeal is allowed in part. But in so far as appeal in relation to the appellant Ashraf Ansari is concerned there appears no substance and accordingly his appeal is dismissed. The appellant Ashraf Ansari is directed to surrender for serving out the remaining period of sentence that was awarded to him by the Vth Additional Sessions Judge, Palamau at Daltonganj in Sessions Trial No. 62 of 1996 arising out of Chainpur P.S. Case No. 55 of 1995 corresponding to G.R. No. 557of1995 failing to which the Trial Court would be at liberty to take coercive steps to ensure the arrest of the appellant so that he serve out the sentence.
