Md. Nasim & Ors. vs The State of Jharkhand

Per- Pradeep Kumar Srivastava, J.

It is pertinent to mention, at the very outset that one counter-affidavit by the State and Supplementary Affidavit by the appellants have been filed and from perusal of the same, it appears that one of the appellants namely Gambhir Mian @ Zamir Mian has died on 13.08.2012 and his death certificate has also been annexed in supplementary affidavit. Therefore, the appeal preferred by Gambhir Mian @ Zamir Mian stands abated and rest of the surviving appellants are renumbered.

The instant criminal appeal is directed against the judgment of conviction dated 26.05.2004 and order of sentence dated 28.05.2004 passed by the learned Sessions Judge, Koderma in S.T. No. 98 of 2000 whereby and whereunder the appellants have been held guilty for the offence under Sections 498A and 306 of the IPC and sentenced to undergo R.I. for 7 years under Section 306 of the IPC and further R.I. for 2 years under Section 498A of the IPC.

I have already heard the arguments of learned counsel for the appellants and learned APP assisted by learned counsel for the informant.

The factual matrix giving rise to this appeal is that the informant Md. Muslim got married his daughter with Md. Nasim in February, 1997 and given household articles and ornaments in the marriage and from their wedlock, one daughter was born. After passage of some time, the informant came to know that his son-in-law had bad habit of taking wine and gambling and for this, his son-in-law used to demand money from his wife and asked to bring the same from her father. It is alleged that his son-in-law due to bad habits had sold the ornaments of his wife Samida Khatoon (deceased) given at the time of marriage. It is further alleged that due to non-payment of money, the accused persons used to torture her daughter Samida Khatoon physically and mentally and this misconduct was also informed to villagers by the informant but the villagers prevented him from taking any action. It is further alleged that in the night of 06.10.1998, at about 11:00 PM, the informant got information that his daughter has died by falling in the well. Thereafter, the informant went to see his daughter and wanted to report the same to the police but the villagers prevented him to do so, however, the accused persons gave information of the alleged occurrence at Telaiya Police Station on the same day at 2:30 AM.

On the basis of written report submitted by Md. Nasim, U.D. Case No. 10/1998 was registered and the dead body of the deceased was sent to Sadar Hospital, Koderma for post-mortem examination.

Informant alleged that since the Police did not take any action, therefore, he filed a complaint case No. 487 of 1998.

On the basis of complaint case No. 487/98 filed before the learned Addl. Chief Judicial Magistrate, Koderma, Koderma (Telaiya) P.S. Case No. 123 of 1999 was registered for the offences under Section 304B of the IPC against the accused persons.

After completion of investigation, the charge-sheet was submitted against the accused persons under Sections 498A and 306 of the IPC and after taking cognizance, the case was committed to the Court of Sessions, where S.T. No. 98 of 2000 was registered. The accused persons denied from the charges and claimed to be tried.

In order to substantiate the aforesaid charges leveled against the accused persons, altogether 13 witnesses were examined by the prosecution apart from the documentary evidence.

On the other hand, one defence witness namely Umesh Kumar Yadav (D.W.-1) has been examined by the defence, who deposed that he never saw the accused persons assaulting and quarreling with the deceased and the deceased and accused persons had good relations between them. He saw the dead body of the deceased who had died due to accidental falling into the well.

The learned trial Court after threadbare analysis of the ocular testimony of the witnesses led by the prosecution as well as defence and also taking into account the documentary evidence adduced by the prosecution, arrived at conclusion of guilt of the appellants, for the offence under Sections 498A and 306 of the IPC and sentenced as stated above.

Learned counsel for the appellants assailing the impugned judgment of conviction and sentence of the appellants, has strenuously argued that the learned trial Court has committed serious illegality in holding the appellants guilty for the offence under Section 306 and 498A of the IPC considering the evidence of only close relatives and failed to consider the fact that independent witnesses have not supported the case of the prosecution. It is further submitted that there was no case of torture due to non-fulfillment of dowry under Section 498A of the IPC against the accused persons because there was no demand of dowry and the deceased had died due to falling into the well. Therefore, no case of abetment of committing suicide under Section 306 of the IPC is also made out against the appellants in the facts and circumstances of this case which may be set aside and this appeal may be allowed.

On the other hand, learned A.P.P. assisted by learned counsel for the informant defending the judgment of conviction and sentence of the appellants has submitted that the learned trial Court has very wisely and aptly considered all the materials available on record and rightly convicted the appellants for the offence under Section 498A and 306 of the I.P.C. and has not committed any illegality or infirmity in passing the impugned judgment which does not call for any interference in this appeal, which is devoid of merits and fit to be dismissed.

I have gone through the record along with the impugned judgment in the light of rival contentions raised on behalf of both the parties.

In view of the points raised during arguments, the sole question emerges for consideration in this appeal is as to “Whether the conviction and sentence of the appellants suffers from any error of law, calling for any interference in this appeal?

For better appreciation of the above issues involved in this case, the relevant provisions are quoted hereunder:-

Before adverting to adjudicate upon the above point, I have to take brief resume of oral as well as documentary evidence adduced in this case during trial.

P.W.-2 (Dasrath Yadav), P.W.-3 (Rojan Ali), P.W. -4 (Md. Asraf) and P.W.-5 (Md. Kalim) have been declared hostile by the prosecution due to not having knowledge about the occurrence and have denied the suggestion of the prosecution.

P.W.-1 Badaruddin Mian is the grand-father of the deceased who has stated that deceased was married with Md. Nasim and after marriage, the husband was asking the deceased to bring money from her parental home and used to assault her and this fact was narrated by the deceased herself to this witness. He has further deposed that the husband and in-laws of the deceased used to assault her for dowry.

In his cross-examination, he has stated that he had not seen the accused persons throwing his granddaughter into the well, rather, he saw them carrying her towards the well and soon thereafter he heard Hulla that his granddaughter fell down into the well. He has also stated that accused persons used to demand Rs. 5,000/- from his grand daughter.

P.W.-6 Tahila Khatoon is the grandmother of the deceased who has stated that her granddaughter was married with Md. Nasim and she had seen the dead body of the deceased and that the blood was oozing from the head of the deceased.

P.W.-7 Shakila Khatoon is the mother of the deceased who has deposed that her daughter got married with the Md. Nasim five years ago and from their wedlock, there was one daughter. She has deposed that when the deceased used to come to her parental home, she had seen that her son-in-law used to assault her daughter and the deceased herself used to tell her that her son-in-law used to ask her to bring money from her parental home otherwise he would kill her. This witness has further deposed that her father-in-law told her that accused persons killed her daughter and threw her into the well.

In her cross-examination, she has stated that her daughter had come four to five times to her parental home and three to four times her son-in-law had assaulted her in her parental home. She has further stated that Rs. 5,000/- cash as a dowry was being demanded.

P.W.-8 Seraj Ali and P.W.-9 Istiyaq Mian have deposed that they had seen the dead body lying beside the well where all the accused persons along with villagers were present.

P.W.-10 Dr. Shivnandan Prasad Singh posted as Medical Officer at Sub-Divisional Hospital, Koderma on 07.10.1998 who conducted post-mortem examination on the dead body of the deceased and found the following:-

Rigor Mortis present. Both eyes closed. Both hands partially opened. Mouth Partially opened. Whitish both coming out from mouth and nose.

Abrasion 1” x 1” cm right side neck. No other injury or mark of violence found on the body.

Lungs edematous congested. Heart –right chamber contains blood and left is empty. Stomach – full of water Liver, Spleen, Kidney-Congested Bladder-empty Brain- congested Uterus-Contains embryo about 2 months He has opined that death occurred due to asphyxia caused by drowning. Time elapsed since death –within 24 hrs. He has proved the post-mortem report marked as Ext.-1

In his cross-examination, this witness has stated that above external injury is possible in case of falling in the well.

P.W.-11 Md. Muslim is the father of the deceased who has deposed that he got information about the occurrence on 06.10.1998 at about 11:00 PM and immediately arrived at the place of occurrence i.e. matrimonial home of the deceased and saw the dead body lying beside the well and her hands were tied. He has further deposed that his daughter got married with Md. Nasim in February, 1997 and after the marriage, she was being assaulted by the husband and in-laws of the deceased to bring money from her parental home. He has further deposed that he had informed the police but no action was taken then he filed complaint case.

In his cross-examination, he has reiterated that the hands of the deceased were tied. He has further stated that accused Nasim used to drink a lot of alcohol and had bad habit of gambling. Due to these bad habits, Md. Nasim used to demand money from his wife repeatedly and when he did not get the money, he used to pressurize her to give him money and due to these bad habits he sold all the jewellery of the deceased. He has also stated that his son-in-law and his parents had demanded Rs. 5,000/- just before one week of the occurrence.

P.W.-12 Md. Naimuddin has deposed that deceased daughter of Md. Muslim was married with Md. Nasim on 28.02.1996 and the family members of the deceased used to quarrel with the deceased due to domestic reason.

In his cross-examination, he has also deposed that the hands of the deceased were tied with Dupatta.

P.W.-13 Ram Suresh Singh, the then A.S.I. Telaiya P.S. has stated that on 24.04.1999, the investigation of this case was handed over to him. During the investigation, he visited the place of occurrence which is public well situated on the south-west corner of the house of Raushan Ali in village Karamabara. The dead body of the deceased was taken out of the said well. He also prepared Inquest Report of the dead body of the deceased and proved carbon copy of the inquest report marked as Ext.3 and sent the dead body of the deceased to Sadar Hospital, Koderma for post-mortem examination. During investigation, he also recorded the statement of the witnesses and submitted charge-sheet in this case.

In his cross-examination, he has stated that in UD Case No. 10/98, he has not recorded the statement of Md. Muslim (informant) and any other witnesses.

Now the question that would fall for consideration is as to whether the prosecution has established cruelty under Explanation (b) of Section 498A of the IPC and also establishes that the deceased committed suicide within seven years of the marriage, could the accused be also held guilty for the offence punishable under Section 306 of the IPC with the aid of Section 113A of the Indian Evidence Act. For applicability of Section 113A of the Indian Evidence Act, the following conditions are required to be satisfied:

In the instant case, there is specific evidence of the grandfather (P.W.-1), the mother (P.W.-7) and the father of the deceased (P.W.-11) that the husband of the deceased used to assault her and frequently demand money for consumption of liquor and he has also sold her jewellery. These facts also find mention in the contents of the F.I.R. It further appears that in natural course of behavior of human being as reflected in the society, particularly, the women are very sensitive against the consumption of liquor by their husband. The frequent consumption of liquor and day to day physical assault meted with a woman, must naturally drive a woman to commit suicide unless such woman might be strong enough having own source of income and capable of leading her life independently. In this instant case, there is no denial of the husband (appellant No. 1) against the allegations proved against him of consumption of liquor and frequently assaulting his wife by raising demand of money as well as selling of all her jewellery. Therefore, the learned trial Court has rightly held the appellant No. 1 guilty for the offence under Section 498A and 306 of the IPC. So far as other appellants i.e. appellant No. 2 and 3 are concerned, from the evidence of the witnesses examined in this case, there is no specific evidence or allegation against the appellant Nos. 2 and 3 showing their any overt act amounting to cruelty against the deceased. It is also not the case of the prosecution that the accused persons have dashed the deceased into well, rather, she has committed suicide.

The overall aspects of the case clearly discloses that the main reason for commission of suicide by the deceased is the conduct of the husband alone who used to demand money for consumption of liquor and sold her jewellery to fulfill his bad habit and also assaulting her physically day by day making her life a curse.

In view of the above discussions and reason, the conviction and sentence of the appellant No. 2 and 3 passed by the learned trial Court under Section 498A and 306 of the IPC is set aside. So far as conviction and sentence of the appellant No. 1 under Section 498A and 306 of the IPC is concerned, the same is upheld and confirmed.

The appellant Nos. 2 and 3 are on bail, hence, they are discharged from the liabilities of bail bonds. The sureties are also discharged and the suspension of sentence granted to the appellant No. 1 Md. Nasim vide order dated 06.12.2005 during pendency of this appeal, is hereby cancelled and he is directed to surrender before the learned Trial Court within two months from the date of this Judgment and undergo the remaining period of sentence awarded to him by the learned trial Court, failing which, the learned trial Court shall take all coercive steps for arrest and detention of the appellant No. 1 (husband) for sustaining the remaining period of sentence awarded to him.

In result, this appeal is partly allowed to the extent mentioned above.

Pending I.A(s), if any, is also disposed of, accordingly.

Let a copy of this judgment along with Trial Court Records be sent back to the court concerned immediately for information and needful.