Safiran Bibi vs The State of Jharkhand

Heard the arguments of learned counsel for the appellant and learned A.P.P. assisted by learned counsel appearing for the Informant.

The instant criminal appeal is preferred by the appellant being aggrieved and dissatisfied with judgment of conviction dated 28^th July, 2005 and order of sentence dated 02^nd August, 2005 passed by learned First Additional Sessions Judge, Giridih in S.T. No. 16 of 2003 whereby and whereunder, the appellant has been convicted for the offence under Sections 304B and 498A of the IPC and sentenced to undergo R.I. for seven years under Section 304B of the I.P.C. and R.I. for two years under Section 498A of the IPC. Both the sentences were directed to run, concurrently.

The factual matrix giving rise to this appeal is that informant’s daughter Amna Khatoon got married with Akbar Ansari before one and half years of the occurrence and as per the capacity, the informant gave Rajdoot Motorcycle, Radio and other utensils. It is alleged that his daughter lived properly in her matrimonial house for two to three months, thereafter, accused persons Akbar Mian, Sukar Mian, Safiran Bibi and Muslim Mian asked his daughter to bring Golden Chain and Ring from her father and if the same is not fulfilled, the accused persons threatened that the husband of the deceased would remarry to another girl ousting the daughter of the informant from her matrimonial home. It is alleged that the deceased was tortured by the accused persons due to non-fulfillment of demand. It is alleged that on 10.10.2002, in the morning, his son-in-law came to the village of informant and informed the villagers that deceased has fallen ill and admitted in Bengabad Hospital. Thereafter, the informant, his son and wife went to Bengabad Hospital where, they came to know that deceased was not admitted in Hospital and then went to the matrimonial home, saw the dead body of the deceased lying in the Angan (courtyard) of the house of accused.

On the basis of above written information of the informant, Jamua P.S. Case No. 172 of 2002 was registered for the offence under Sections 304B, 498A of the IPC and 3/4 of Dowry Prohibition Act against the accused persons.

After completion of investigation, charge sheet was submitted against accused persons Akbar Ansari and Safiran Bibi, keeping the investigation pending against Sukar Mian and Muslim Mian. After taking cognizance, the case was committed to the Court of Sessions, where S.T. No. 16 of 2003 was registered. The accused persons pleaded not guilty and claimed to be tried. Accused Akbar Ansari being juvenile sent to Juvenile Court.

In the course of trial, altogether 11 witnesses were examined by the prosecution.

P.W.-1 Jamila Mosmat P.W.-2 Masoorun Bibi P.W.-3 Hidayat Ansari P.W.-4 Ibrahim Mian P.W.-5 Karim Mian P.W.-6 Latif Mian P.W.-7 Rabool Ansari P.W.-8 Kalwa Devi P.W.-9 Chando Mian (Informant) P.W.-10 Suresh Prasad Singh P.W.-11 Dr. Rajendra Kumar Apart from oral testimony, following documentary evidence has also been adduced by the prosecution.

Ext.-1 Fardbeyan Ext.-1/1 Signature of Informant on Fardbeyan Ext.-2 Post Mortem Report

On the other hand, no documentary evidence has been adduced on behalf of the defence, apart from following two defence witnesses examined in this case:-

D.W.-1 Mangal Mian D.W.-2 Arjun Mahto

After conclusion of the trial, impugned judgment and order of conviction and sentence has been passed by the learned trial Court, which has been assailed in this appeal.

Submissions on behalf of appellant: -

Learned counsel for the appellant assailing the impugned judgment of conviction and sentence has argued that the learned trial Court has failed to consider the fact that soon before death of the deceased, there was no cruelty and demand of dowry by the present appellant being the mother-in-law of the deceased. It has also been submitted that it is alleged that death was caused due to poisoning but there is no F.S.L. report to prove the cause of death, rather, on the date of the occurrence, the deceased had serious stomach pain and was being taken to Hospital, but on the way, she died. It has also been submitted that defence has also examined two witnesses i.e. D.W.-1 and D.W.-2 who have corroborated the fact that deceased died due to illness and they had seen that deceased was suffering from stomach pain. It has also been submitted that co-accused Muslim Mian has been acquitted by the learned trial Court wherein the informant of this case has been declared hostile whose version not supported the case of the prosecution. Therefore, offence under Section 304-B and 498-A of the IPC is not attracted in this case and appellant deserves acquittal and the impugned judgment of conviction and sentence is liable to be set aside by allowing this appeal.

Submissions on behalf of the State assisted by learned counsel for the Informant:-

On the other hand, learned A.P.P. assisted by learned counsel appearing for the Informant has vehemently opposed the aforesaid contentions raised on behalf of the appellant and submitted that the learned trial Court has very wisely and aptly analyzed, appreciated and apprised with the oral testimony of the witnesses available on record and all the witnesses proved the ingredients of offence under Section 304B and 498A of the IPC. Therefore, there is no illegality or infirmity in the impugned judgment calling for any interference in this appeal, which is devoid of merit 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 the parties.

The sole point for determination in this appeal is “as to whether the impugned judgment of conviction and sentence of the appellant suffers from any error of law, which requires any interference in this appeal”?

Before imparting my verdict on the above point, it appears necessary to take brief resume of ocular testimony of witnesses examined in this case. P.W.-1 Jamila Mosmat has deposed that two years ago, the deceased was married with Akbar Ansari who used to live in her matrimonial house happily but all of a sudden, deceased fell ill who was taken to Bengabad Hospital by her husband where she died. In her cross-examination, this witness admits that deceased used to complain stomach pain.

P.W.-2 Masoorun Bibi being the cousin sister of the deceased has also deposed that deceased complained about stomach pain and taken to hospital where the deceased died. In her cross-examination, this witness also admits that deceased had stomach pain and used to live in her matrimonial home happily.

P.W.-3 Hidayat Ansari has deposed that deceased died in her matrimonial home. He has further stated that deceased was being tortured by her husband, father-in-law, mother-in-law and Muslim Mian demanding Golden Chain and Ring. This witness has further stated that in the morning of the fateful night, Akbar Mian (the husband of the deceased) came to the village of the informant and informed that deceased being ill admitted in Hospital. Then, he came to know that deceased was killed by administering poison by her in-laws.

P.W.-4 Ibrahim Mian has deposed that after two to three months of marriage, deceased was being tortured by the accused persons for golden chain and ring. He has stated that when deceased came to her parental house, she told me that her husband, elder brother of husband, father-in-law and mother-in-law used to ask for golden chain and ring and used to harass her if she would not give it and when they started harassing her for not getting the gold chain, then, deceased father promised to fulfill the demand within two to three months but the deceased died before that. He has further stated that when husband of the deceased informed, they went to Bengabad Hospital where deceased was not there and came to the matrimonial house of the deceased and saw the dead body of the deceased in the house of the accused persons.

P.W.-5 Karim Mian is the maternal grandfather of the deceased who had also went to the house of the deceased and seen the dead body, from whose mouth, froth was coming out. This witness came to know that deceased was killed by administering poison.

P.W.-6 Latif Mian is the uncle of the deceased who has stated that deceased was being tortured for want to dowry and in that respect, a Panchayati was held. This witness also deposed that having information regarding the illness of the deceased, they went to Bengabad Hospital where the deceased was not admitted and came to matrimonial house of the deceased and saw that blood was coming out from her nose. In his cross-examination, this witness has stated that the husband of the deceased Akbar Mian had come to village of the informant and this witness had gone with the husband of the deceased to Hospital by Motorcycle.

P.W.-7 Rabool Ansari is the brother of the deceased who has deposed that her sister got married with Akbar Mian who lived well for two to three months and thereafter she was being tortured by the accused persons for Golden Chain and Ring and this fact was conveyed by the deceased herself. He further stated that on 10.10.2002, Akbar Mian informed that deceased fell ill and admitted in Hospital but deceased was not admitted and when he came to the house of the deceased, seen the dead body of the deceased.

P.W.-8 Kalwa Devi is the mother of the deceased who has deposed that whenever the deceased used to come to her parental house, complained about demand of golden chain and ring and torture meted with her. This witness also stated that in the morning of fateful night of the occurrence, her son-in-law came and informed that deceased fell ill and admitted in Hospital but when this witness along with other went to Hospital, the deceased was not there and came to the matrimonial house of the deceased and seen the dead body.

P.W.-9 Chando Mian is the informant-cum-father of the deceased has deposed that after two to three months of marriage of her daughter with Akbar Mian, accused persons began to torture demanding Golden Chain and Ring. He has stated that he had requested the accused persons to keep her daughter properly as he had not capacity to fulfill the demand. This witness has stated that accused persons killed his daughter and informed that she was ill and admitted in Hospital but the deceased was not there and when they came to the matrimonial house, they saw the dead body of the deceased from whose mouth, red froth was coming out and there was smell of fuel. In his cross-examination, he has stated that he did not meet the Akbar Mian in the morning when he had come to inform regarding the illness of the deceased. He also admits that a panchayati was also held.

P.W.-10 is the I.O. Suresh Prasad Singh who has investigated the case. He has stated that he inquired about the accused persons but they were traceless and after completion of the investigation, chargesheet was submitted. He also admits that he had not sent the viscera for chemical examination.

P.W.-11 Dr. Rajendra Kumar who had conducted the post-mortem examination on the dead body of the deceased and found following:-

External Injury:- i. Bruise 6”x3/4” on the right side middle portion of back.

He has opined that all the above injuries were ante-mortem. The doctor has also found presence of blood froth on both nostril.

On dissection:- This witness found lungs, liver, spleen, kidney congested, stomach contains thick reddish fluid pungent smell and mucus membrane congested.

Cause of death:- Death was due to suspected poison. Viscera was also preserved for chemical examination.

On the other hand, D.W.-1 has deposed that the deceased used to live happily in her matrimonial home and there was no demand of dowry by the accused persons and on the date of occurrence, the deceased had complained about stomach pain.

D.W.-2 has stated that before one day of the occurrence, he had gone to the house of the deceased, and seen that the deceased was suffering from stomach pain.

In order to deal with the above point, it is required to refer the relevant provisions of law herein below:-

Indian Penal Code

From bare perusal of Section 304B of the IPC (Section 80 of B.N.S., 2023), it is obvious that following ingredients have to be proved by the prosecution as foundational facts for invoking the offence of dowry death:-

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 and once the prosecution establishes aforesaid ingredients, the burden of proof radically shifts to the defence due to strict statutory presumption.

The provision of section 304-B of IPC as regards cause of death does not categorize death as homicidal, suicidal or accidental rather any death occurring “otherwise than under normal circumstances” may attract the provision of section 304-B of IPC, if other ingredients are fulfilled.

In the instant case, after going through the ocular testimony of prosecution witnesses examined in this case, it appears that there is no F.S.L. Report to support the death of the deceased by poisoning, however post-mortem report suggests death due to suspected poisoning but no viscera report was received from forensic lab by the Investigating Officer to prove the cause of death of the deceased due to poison which was a vital document. It also appears that the co-accused has been acquitted by the learned trial Court. The informant has also admitted that his daughter died due to diarrhea and the deceased was living happily in her matrimonial home. It is also an admitted fact that the husband was declared juvenile in this case who is alleged to have demanded Golden Chain and Ring. It also appears that there is no specific allegation against mother-in-law for demand of any dowry but there is general allegation of cruelty and atrocities as per the testimony of the witnesses including mother and father of the deceased. It is also an admitted fact that the husband of the deceased immediately communicated the mother and father of the deceased regarding the illness.

In view of the above discussion and reasons, I am of the view that basic ingredients of offence under Section 304-B of the IPC against this appellant is not proved. Accordingly, the conviction of the appellant under Section 304-B of the IPC is hereby set aside but at the same time, from the aforesaid discussion, the offence under Section 498A of the IPC against the appellant is well proved, hence upheld and confirmed.

So far as the quantum of sentence of the appellant is concerned, it appears that the appellant has remained in custody for 8 months and the occurrence is of the year 2002 and since then, more than two decades have elapsed and the appellant is suffering from the agony of the trial thus she has sufficiently been punished for her guilt. Therefore, no useful purpose would be served by sending the appellant again in jail Therefore, in the ends of justice, sentence of imprisonment of the appellant is reduced to the imprisonment already undergone by her for the offence under Section 498A of the IPC.

Accordingly, the sentence of imprisonment of the appellant for the offence under Section 498A of the IPC is hereby reduced to the extent of period of imprisonment already undergone by her.

In result, this appeal is partly allowed with modification in conviction and sentence as stated 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 for information and needful.