Ejajul Ansari vs The State of Jharkhand

Virender Singh, C.J.

Appellant Ejajul Ansari (hereinafter to be referred to as accused) along with his real brother Feyazul Ansari faced the trial for the charge of Section 304B and 498 A IPC. His brother Feyazul Ansari however is acquitted of the charge whereas accused has suffered conviction for the charge of Section 304B IPC vide impugned judgment of learned Vth Additional Judicial Commissioner, Ranchi dated 20.12.2002 and sentenced for life, aggrieved thereof, he has preferred the instant appeal for setting aside the conviction/sentence slapped upon him. State has however chosen not to file any appeal against the acquittal earned by co-accused Feyazul Ansari.

Priority was given to the instant appeal considering the incarceration period of the accused which, according to the report of the Registry, was more than 12 years. However, as per the latest report rendered by the Jail Superintendent where the accused was lodged after conviction, is to the effect that he was released from the jail on 15.11.2011 after serving his entire sentence including the remission period. Be that as it may, the instant appeal being the statutory appeal and having been already admitted, calls for its disposal on its merits.

One Roshan Khatoon, wife of the accused, is the deceased in this case. The present case was registered on the basis of the fardbeyan (first information report) of one Islam Ansari, the uncle of the deceased, who reported that the deceased has illicit relation with the accused who is from the same village and he came to know of this fact in the month of January, 1999 only when the deceased had become pregnant. It is thereafter a Panchayati was convened and it was decided to get the deceased married to the accused and ultimately both got married. At the time of the marriage, the accused had made demand of Rs. 20,000/-, one Rajdoot Motorcycle and one colour television but the assurance was given to him that the said demand would be fulfilled later as at the time of marriage the complainant side was not having that much of financial ability. It is then alleged that one month before the main occurrence i.e. somewhere in April, 1999, the accused had given one bottle of liquid to the deceased and told her to take it in the night but deceased did not take it as she came to know that there was some poison in the bottle. She was assaulted by the accused and when this incident came to the notice of the complainant, he inquired about the incident from the accused and Feyazul Ansari, his brother, who reiterated the aforesaid demand and stated that if the same was not fulfilled, divorce would be given to the deceased. It is then alleged that one day prior to the occurrence i.e. 02.05.1999 at about 8.00 P.M. the deceased had come to her maternal house and disclosed that the accused and Feyazul Ansari were torturing her because of dowry demand but the first informant and Rahman Ansari told the deceased to go back to her matrimonial home and that the matter would be settled tomorrow, resultantly she went back. It is at 7.00 A.M. on 03.05.1999 he saw the family members of accused in a suspicious circumstance and when he went to the house of the deceased, he saw the dead body of her niece in the courtyard and there were several marks of injury on her dead body. On inquiry the accused persons did not tell anything. This is how on the statement of PW Islam Ansari, the present case was registered against the accused and his brother Feyazul Ansari (since acquitted).

After the investigation of the present case, the accused and his brother Feyazul Ansari were put to trial. As stated above, the brother of the accused stands acquitted whereas the accused-appellant convicted for the charge of Section 304B IPC.

Prosecution in order to prove the charge has produced the following witnesses:--

"PW-1 - Salamat Ansari. He is a witness of hearsay evidence.

PW-2 - Islam Ansari. He is first informant of the case and when stepped into witness box, proved his initial statement which is the basis of the recording of the first information report. He reiterated what he stated in his initial statement before the police.

PW-3 - Quamuddin Ansari. He is maternal grand father of the deceased and stated that the accused and his brother used to make demand of Rs. 20,000/-, Rajdoot Motorcycle and colour television as dowry.

PW-4 - Abdul Rahman is the father of the deceased. He also stated that husband and his family members used to demand Rs. 20,000/-, Motorcycle and T.V. as dowry from the deceased. He also stated that the accused, at one stage, had given a bottle of poison to the deceased and when she refused, she was assaulted by the accused. He further stated that the matter in this regard was reported to the police and the police had threatened the accused. He further stated that when they went to the house of the deceased, they saw mark of inquiry on different parts of the body of the deceased.

PW-5 - Ayub Ansari is also a witness of hearsay evidence.

PW-6 - Md. Isriel. He deposed that the deceased used to tell him that the accused and his family members used to insult her.

PW-7 - Amiruddin Ansari is a witness to the Inquest Report and proved the same in the court.

PW-8 - Narain Ram is the Investigating Officer of the present case. He during trial proved the fardbeyan (first information) of PW Islam Ansari. He also proved the formal F.I.R. and the Inquest Report. He further deposed that there were marks of throttling and assault on the dead body of the deceased.

PW-9 - Dr. Ram Sewak conducted the autopsy on the dead body of the deceased (Roshan Khatoon). He did not notice any mechanical injury, external or internal. However, the stomach was containing pestimaterial and fluid (whitish) with strong disagreeable smell like Organo Phosphorous Compound. The mucus membrane of stomach was highly congested. The other organs were also congested. The uterus was pregnant and containing a dead female foetus 17" long i.e. approximately 8 1/2 months gestational age. In the opinion of the doctor the death was due to poison."

This is all about prosecution evidence.

The accused and his co-accused when examined under Section 313 Cr.P.C., they claimed themselves to be innocent. In defence they have produced two witnesses. Haquemul Ansari (DW-1) stated that the mental condition of the deceased was not good as such she took poison and died. Akhtar Ansari (DW-2) also stated that the deceased had taken poison as her mental condition was not well. However, no documentary evidence has been produced by the accused about the mental condition of the deceased.

Heard Mr. H.K. Mahato, learned counsel for the appellant and Mr. Amaresh Kumar, learned Additional Public Prosecutor for the State.

Mr. Mahato submitted that the entire case of the complainant is resting upon interested witnesses of the complainant family who otherwise have not been able to prove the case beyond any shadow of doubt. He submitted that not only their evidence is contradicting each other on the demand of dowry, even otherwise, it does not appear to be probable that when the accused was asked to marry the deceased on account of intervention of the Panchayat as he was earlier having illicit relation with the deceased, question of making any demand of dowry in the shape of cash or kind as alleged does not arise. Therefore, it appears that the story of dowry demand has been coined up by the complainant side taking the undue advantage of unnatural death of the deceased in the house of the accused.

Learned counsel submitted that another fact which favours the accused is that on the same set of evidence, his co-accused and real brother namely Feyazul Ansari has been acquitted and on that the accused stands convicted. He submitted that it appears that the accused has suffered conviction on account of being husband of the deceased only, otherwise it is a case of no evidence against him.

Learned counsel then submitted that another vital flaw in the case of the prosecution is that the report of the FSL with regard to the viscera sent for chemical examination was never brought on record, therefore, it cannot be said that the cause of death is consumption of some poisonous matter. He submitted that even otherwise, the complainant side initially made an attempt to put forth as if it was a case of homicidal death showing certain injuries on the person of the deceased whereas there is no injury noticed on the external part of the body by the doctor of autopsy to say that the deceased was assaulted by the accused. Learned counsel submitted that it was specific case of the accused that the deceased was not keeping good mental condition, therefore, she had committed suicide and that possibility of her committing suicide in the present set of circumstances, otherwise cannot be ruled out.

Learned counsel submitted that once the allegation of demand of dowry falls on the ground on account of the aforesaid weaknesses, in that eventuality one of the basic ingredient of Section 304B IPC would be missing in this case so as to hold the accused guilty of the charge of Section 304B IPC. He thus prays for acquittal of the accused which is vehemently opposed by the learned State counsel stating that the deceased has committed suicide within six months of her marriage on account of nonfulfillment of certain dowry demands made by the accused husband. He submitted that acquittal of his co-accused Feyazul Ansari, in any case, would not damage the case of the prosecution qua the present accused, he being the husband who could not put forth any plausible explanation for the unnatural death of his wife. There is no evidence on record to show that the deceased was suffering from any mental disorder and she consumed poisonous material on her own and committed suicide. Learned State counsel thus prays for upholding the conviction and sentence as already recorded by the learned trial court.

We are conscious of the fact that in this case viscera report is not produced by the prosecution but in our considered view that would not cause any prejudice to the accused for the reason that Dr. Ram Sewak has categorically stated and it is otherwise mentioned in the postmortem report that it was a case of consumption of some pestimaterial (fluid of whitish colour) with strong disagreeable smell like Organo Phosphorous Compound. The mucus membrane of stomach was also highly congested. Other organs were also noticed as congested by the doctor of autopsy. Undoubtedly, prosecution should have made an attempt to place on record the FSL report of the viscera sent for chemical examination and it appears to be some lapse on the part of the Public Prosecutor who should have been cautious enough to ensure that the FSL report with regard to the viscera is made available to the trial court. However, the reasoning recorded by the learned trial court for arriving at the conclusion that the death of the deceased was on account of poisonous material (Organo Phosphorous Compound) which is pesticide and used in agriculture for killing insects in the absence of non-production of viscera report, does not appear to be faulty at all. We thus concur with the said view in holding that non-production of FSL report vis-�-vis viscera has not caused any prejudice to the accused, therefore, he cannot derive any benefit from the same and we conclude that deceased (Roshan Khatoon) died on account of poisoning, the death, thus otherwise than under normal circumstances. Admittedly it is within seven years of the marriage also.

We take it that the deceased had consumed the poison herself, there being no external mark of any injury on the body of the deceased ante-mortem in nature or could be said to be sufficient to cause death in the ordinary course of nature. The accused, thus can be convicted for the charge of Section 304B IPC provided the prosecution has been able to prove the demand of dowry soon before the death which in this case is within six months of the marriage. We, in any case, are not going to accept the plea of the accused that the deceased committed suicide as she was mentally ill. The bald evidence produced in the shape of two defence witnesses without there being any documentary evidence in this regard cannot be accepted.

Let us now examine the case of the prosecution vis-�-vis the demand of dowry. To start with the allegation as contained in the FIR, it is clear that there was demand of dowry right from the date of marriage when the accused demanded Rs. 20,000/- in cash, Rajdoot Motorcycle and colour T.V. as dowry. When the demand was not met on account of financial inability, the accused started assaulting the deceased. Not only that, an attempt was also made to kill the deceased by the accused asking her to consume the bottle of poison and when refused, she was assaulted badly. We have rescanned the entire evidence available on record in this regard and are of the considered view that the accused was making consistent demand of dowry in the shape of Rs. 20,000/- in cash, Motorcycle and colour T.V. and that the deceased was being harassed and tortured by him on this count. Minor discrepancies appearing in the statement of the prosecution witnesses are not of that damaging character so as to dislodge the case of the prosecution totally vis-�-vis the allegation of the demand of dowry. We are conscious of the fact that the accused was asked to marry the deceased by the Panchayat on account of the illicit relations of the accused with the deceased, but that cannot be a ground to say that the accused could not make any demand for dowry. There is clinching evidence on demand of dowry from the present accused. So far as accused No. 2 the real brother of the present accused is concerned, we find that there is no specific evidence of torture or harassment caused to the deceased by him. This we have just observed while rescanning the prosecution evidence in its right perspective, whereas it would be of no relevance as the State has not filed any appeal against the acquittal earned by the real brother of the accused.

Another aspect which is available on record is that when the deceased died she was pregnant and carrying a female foetus approximately of the age of 8 months. As death has occurred otherwise than under normal circumstances within 7 years of the marriage of the deceased (herein this case within six months) and the prosecution has been able to show that soon before her death she was subjected to cruelty or harassment by her husband on account of dowry demand, the death of the child in any case would have of no relevance so far as conviction under Section 304B IPC is concerned. Had it been a case of homicidal death, the situation could be otherwise.

As a sequel to the aforesaid discussion, we are of the considered view that the prosecution has been able to prove its case against the accused for the charge of Section 304B IPC beyond any shadow of reasonable doubt. His conviction and sentence as already recorded by the learned trial court thus deserves to be upheld. Ordered accordingly.

The net result is that the appeal on hand stands dismissed.