Md. Nizamuddin @ Md. Nizam vs State of Bihar

Hemant Kumar Srivastava, J.—This criminal appeal has been preferred against the judgment of conviction and sentence order dated 13.3.2001 passed by Sri R.C. Jha, learned Addl. Sessions Judge II, Khagaria in Sessions case No. 195/1997 by which and whereunder he convicted the sole appellant for the offence punishable under sections 304B, 498A and 201 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for seven years for the offence punishable u/s 304B of the Indian Penal Code, to undergo rigorous imprisonment for three years for the offence punishable u/s 498A of the Indian Penal Code and to undergo rigorous imprisonment for one year for the offence punishable u/s 201 of the Indian Penal Code. All the aforesaid sentences were ordered to be run concurrently and furthermore, the period of detention already undergone by the appellant during investigation or trial was ordered to be set off from the terms of sentences. The brief fact, which lies to file this criminal appeal, is that PW 4 Md. Shekawat gave written report to Officer-in-charge of Khagaria police station on 10.3.1997 to this effect that marriage of his daughter, namely, Gulia Khatoon was solemnized with Md. Kismat son of Md. Nizam 6 to 7 years ago and after marriage his daughter went to her in-laws house but after 3 years of marriage, her husband, namely, Md. Kismat as well as her father-in-law Md. Nizam demanded Rs. 25,000/- from her. Gulia Khatoon came to her parents house and demanded Rs. 25,000/- from PW 4 and also disclosed that her husband and her father-in-law would kill her, if she did not pay Rs. 25,000/- to them. He, further, stated that a compromise took place between the parties and his daughter again went to her in-laws house and gave birth to a male child. PW 4 further stated in his written report that on 9.3.1997 he went to in-laws house of his daughter to meet his daughter but he was not allowed to meet his daughter. When he again along with his co-villagers Md. Musraf and Md. Rizwan went to the house of in-laws of his daughter to meet his daughter, his son-in-law Md. Kismat disclosed that his daughter had fled away on last Saturday night. PW 4 then searched for his daughter but he could not succeed to trace her but. He claimed in his written report that his daughter was killed by her husband and father-in-law due to non-fulfillment of demand of Rs. 25,000/-.

On the basis of the aforesaid written report, Khagaria PS. Case No. 71/1997 for the offence u/s 364/34 of the IPC was registered and formal first information report was drawn up against the appellant and Md. Kismat for the offence u/s 364/34 of the IPC.

PW 9 took the charge of investigation and in course of investigation, he recorded statement of witnesses, inspected place of occurrence and furthermore, on 11.3.1997 at about 11 a.m., he got information from PW 4 that dead body of son of his daughter was lying in a ditch at the village Sanauli. He went there and recovered dead body of Tanveer Ahmad and he prepared inquest report. On 16.3.1997 again, PW 4 informed him that dead body of Gulia Khatoon was lying near bank of Gandak river. He registered Sanha in respect of the aforesaid information and went near bank of Gandak river from where dead body was recovered and he prepared inquest report. He also received deed of agreement from PW 4 in course of investigation and after obtaining post mortem reports of both the deceased persons, he submitted charge-sheet for the offences punishable under sections 364, 304B, 498A, 302 and 201 of the IPC against the appellant and co-accused Md. Kismat.

The cognizance of the offences was taken and the case was committed to the court of Session, in usual way. Accordingly, the appellant and co-accused Md. Kismat were put on trial and they were charged for the offences punishable under sections 304B, 498A, 302 and 201 of the IPC but they denied the charges and claimed to be tried.

In course of trial, altogether, nine prosecution witnesses were examined and prosecution also got exhibited signatures on inquest reports and other documents as exhibits 1 series, post mortem reports as exhibit 2 series, formal FIR as exhibit 3, inquest reports as exhibits 4 series, the original deed of agreement dated 19.3.1994 as exhibit 5 and photostat copy of Nikhnama as exhibit 6.

Before recording the statement u/s 313 of the Cr.P.C., co-accused Md. Kismat escaped from jail custody and accordingly, only the statement u/s 313 of the Cr.P.C. of the appellant was recorded and in his statement he denied the prosecution case. Two witnesses were examined on behalf of the appellant as defence witnesses.

The learned Addl. Sessions Judge, having considered the materials available on record, passed the impugned judgment of conviction and sentence order in the manner as stated above.

The impugned judgment of conviction and sentence order have been assailed by learned counsel for the appellant on the ground that prosecution could not succeed to prove all ingredients of section 304B of the IPC but in spite of that learned Addl. Sessions Judge convicted the appellant only on the basis of conjectures and surmises. He further submitted that there was nothing before learned Addl. Sessions Judge to come to this conclusion that soon before her death, the deceased Gulia Khatoon was subjected to cruelty and harassment in connection with dowry demand by the appellant but in spite of that learned Addl. Sessions Judge gave finding that prosecution succeeded to prove its case beyond all shadow of reasonable doubts. He further submitted that judgment of conviction is erroneous and is liable to be set aside.

On the other hand, learned Addl. Public Prosecutor appearing for the State, supported the impugned judgment of conviction and sentence order arguing that prosecution succeeded to prove all ingredients of section 304B of the IPC and, therefore, learned Addl. Sessions Judge rightly convicted the appellant for the above stated offence and, mere-fore, there is no scope for this court to interfere with the impugned judgment of conviction and sentence order.

As I have already stated that prosecution examined, altogether, nine witnesses, out of whom PW 6 Dr. Abdul Ahad is doctor who conducted post mortem examination of dead body of the deceased Gulia Khatoon as well as dead body of Tanveer Ahmad aged about six months. This witness stated that on 16.3.1997 he did post-mortem examination over dead body of Gulia Khatoon and found the whole body swollen with skin peeled off at multiple places and maggots and flies were present all over the body and body was at the stage of advance decomposition. This witness further stated that he found lacerated tear 2�" x 3/4" x bone deep over left parietal area and radish colour of tissue on the back of right elbow 1" x 3/4". No skin was present there and furthermore, radish discoloration of whole back where the skin was peeled off. He also found that left parietal bone of the deceased was fractured and opined that cause of death of the deceased was hemorrhage and shock on account of the above stated head injury caused by hard and blunt substance. This witness proved post-mortem report of the deceased Gulia Khatoon as exhibit 2. He further stated that on 11.3.1997 he did post-mortem examination on the dead body of Tanveer Ahmad aged about six months and found lacerated tear 3/4" x 2 millimeter x skin deep over right side of scrotum and multiple black bruises on the dorsum of left forearm and multiple superficial abrasions over back of skull and cause of death of Tanveer Ahmad was asphyxia due to drowning. He proved postmortem report of Tanveer Ahmad as exhibit 2/1.

Exhibit 2 as well as statement of PW 6 establish this fact that the deceased Gulia Khatoon died in other than normal circumstance.

PW 1, Md. Jalil is maternal uncle of Gulia Khatoon and this witness stated that marriage of Gulia Khatoon was solemnized in June, 1990.

PW 2 is co-villager of PW 4 and this witness stated that marriage of the deceased Gulia Khatoon was solemnized to some quarter of 7 years prior to alleged occurrence. PW 3 is also a co-villager of PW 4 and this witness stated that marriage of Gulia Khatoon was solemnized in the year 1990.

PW 7 stated that marriage of Gulia Khatoon was solemnized six and half years ago from the date of occurrence.

PW 4 is father of the deceased Gulia Khatoon and informant of this case. This witness stated that marriage of Gulia Khatoon was solemnized on 19.6.1990. Therefore, it is apparent that almost all witnesses stated that marriage of Gulia Khatoon was solemnized in the year 1990.

PW 1 and PW 4, specifically, stated that marriage of Gulia Khatoon was solemnized in the month of June, 1990.

Learned counsel appearing for the appellant submitted that PW 2 at para 2 of his cross-examination stated that there was flood in 1987 and at the time of flood, Gulia Khatoon was at her sasural and, therefore, the aforesaid admission of PW 2 clearly suggests that marriage of Gulia Khatoon was solemnized in the year 1987 or prior to 1987 but I am unable to accept the aforesaid contention of learned counsel for the appellant because PW 2 at the same para stated that after 3 or 4 years of the aforesaid f flood Panchayati was held but exhibit 5, agreement deed, reveals that Panchyati between the parties was held on 19.3.1994. Therefore, the aforesaid witness himself made contradictory statement and moreover, even if it assumed that this witness had seen Gulia Khatoon 3 to 4 years prior to the above stated Panchyati, then also, it is apparent that he had seen Gulia Khatoon at her sasural some time in the year 1990 or in the year 1991 and, therefore, only on the basis of statement of PW 2, it cannot be said that marriage of Gulia Khatoon was solemnized in the year 1987 and in my view, prosecution successfully proved this fact that marriage of Gulia Khatoon was solemnized in the month of June, 1990.

Admittedly, informant PW 4 gave his written report on 10.3.1997 and dead body of Tanveer Ahmad was recovered on 11.3.1997 from a ditch at Sanauli village and later on, on 16.3.1997 dead body of a woman was recovered near the bank of Gandak river.

PW 1 stated that PW 4 disclosed him that Gulia Khatoon as well as her son were killed by Md. Kismat and the appellant and dead bodies of Gulia Khatoon and Tanveer Ahmad were disposed of by the above stated accused Md. Kismat and the appellant. This witness further stated that having got the aforesaid information he as well as others started searching the dead bodies of Gulia Khatoon and Tanveer Ahmad and after three days, dead body of a male child was found in a ditch near Sanauli road and this witness identified that the aforesaid dead body was of son of Gulia Khatoon. He further stated that he informed PW 4 about recovery of dead body and after that informant went to police station and came at the place of recovery of the aforesaid dead body and police recovered dead body and prepared inquest report on which he as well as PW 3 put their signatures.

PW 2 stated that occurrence took place on Saturday and he got information about the occurrence on Monday from PW 4. He further stated that PW 4 informed him that Gulia Khatoon was missing from her in-laws house and after that he as well as other persons started searching Gulia Khatoon and in course of search after 3 or 4 days, dead body of a male child was recovered and after 7 to 8 days dead body of Gulia Khatoon was recovered near bank of Gandak river. He further stated that at the time of recovery of dead body of Gulia Khatoon, he as well as other persons were present and police prepared inquest report on which he put his signature. He fairly admitted at para 4 of his cross-examination that he had not seen son of Gulia Khatoon but he stated that he had identified dead body of Gulia Khatoon.

PW 3, Md. Belal stated that he got information from PW 4 and others that a dead body of a male child was lying near a cowshed and after that he as well as others went there and saw dead body of a child lying there. He stated that he identified that the aforesaid dead body was of son of Gulia Khatoon. He further stated that the aforesaid dead body was recovered by the police and police prepared inquest report on which he put his signature.

PW 4, Md. Shekawat also supported the aforesaid facts.

PW 8, Md. Bhagdad also proved this fact that dead body of Gulia Khatoon was recovered from the bank of Gandak river and inquest report was prepared by the police. Therefore, the aforesaid prosecution witnesses clearly proved this fact that dead bodies of the deceased Gulia Khatoon as well as the deceased Tanveer Ahmad were recovered in the month of March, 1997 and, the dead bodies were identified by them.

Learned counsel for the appellant submitted that according to PW 6 as well as postmortem report of the deceased Gulia Khatoon, it is clear that recovered dead body of female was at the advanced stage of decomposition. Therefore, it was not possible for the prosecution witnesses to identify the aforesaid dead body but learned Addl. Sessions Judge accepted the evidence of prosecution witnesses on the point of identification of so-called dead body of Gulia Khatoon. I am unable to accept the above stated contention of learned counsel for the appellant because PW 6 has, nowhere, stated in his deposition that dead body was not in identifiable condition and, therefore, only because the dead body was in advanced stage of decomposition, it cannot be said that witnesses were not in a position to have identified dead body of the deceased Gulia Khatoon. Furthermore, I find from the above stated evidence of prosecution witnesses that prosecution succeeded to prove this fact that the deceased died within seven years of her marriage.

PW 1 stated that after six months of her marriage Gulia Khatoon returned to her parents house and disclosed that her husband Md. Kismat and her father-in-law Md. Nizam used to demand Rs. 25,000/- from her to open a garage. This witness further said that Gulia Khatoon used to visit at her sasural and her parents house and she always disclosed this fact that her husband and her father-in-law used to demand Rs. 25,000/-. This witness further said that a Panchyati was held between the parties and in the aforesaid Panchyati, it was decided that Md. Kismat as well as the appellant would not make any demand. He further stated that document was also prepared in respect of the aforesaid Panchayati.

PW 2 stated that after marriage Gulia Khatoon used to visit her in-laws house as well as her parents house and after 3 to 4 years of her marriage some dispute arose between her as well as her in-laws for which a Panchyati was held and in the aforesaid Panchyati, he came to know this fact that Md. Kismat used to demand some money from Gulia Khatoon and that was the reason of dispute between the couple. This witness further said that a document was also prepared in the aforesaid Panchyati. At para 2 of his cross-examination, this witness stated that husband of Gulia Khatoon was not interested to take back Gulia Khatoon to his house but in the aforesaid Panchyati, Panches settled the dispute and dispute of the parties stood resolved and after that Gulia Khatoon went to her in-laws house. This witness admitted that Md. Kismat and his family members had not made any demand from Gulia Khatoon nor misbehaved with her in his presence and he got information about the aforesaid demand as well as torture from PW 4.

PW 7 stated that after marriage Gulia Khatoon used to visit her in-laws house and her husband used to make demand of Rs. 25,000/- and also used to assault her.

PW 4 father of Gulia Khatoon stated that after one to one and half year of marriage Md. Kismat asked Gulia Khatoon to fetch Rs. 25.000/- from her father so that he could purchase second hand vehicle and the aforesaid fact was disclosed by Gulia Khatoon to him. He further stated that Gulia Khatoon disclosed that when she refused to fetch money, she was beaten up by Md. Kismat PW 4 further stated that he, after having gathered the aforesaid information, conveyed a Panchyati in the year 1993 and again a Panchyati was held in the year 1994 and in the aforesaid Panchyati. Panches directed Md. Kismat to keep Gulia Khatoon properly and a written agreement was prepared and after that Gulia Khatoon was sent to her in-laws house.

On perusal of the above stated evidence, it is apparent that PW 4, himself, admitted that it was Md. Kismat who made demand of Rs. 25,000/- from deceased Gulia Khatoon and PW 4 has, nowhere, stated this fact that this appellant had ever made any demand either from Gulia Khatoon or from him. Furthermore, it would appear from evidence of PW 4 that alleged demand of Rs. 25,000/- was made some time in the year 1993 i.e. after 3 years of marriage and when the aforesaid demand was not fulfilled, dispute arose between the parties and to resolve the aforesaid dispute Panchyati was held twice and lastly, in the second Panchyati which was held in the year 1994 dispute of the parties stood resolved and the deceased Gulia Khatoon went to her in-laws house along with her husband Md. Kismat. Exhibit 5 also reveals this fact that second Panchyati was held on 19.3.1994. Furthermore, there is nothing in the deposition of prosecution witnesses that after 1994 any illegal demand was ever made by the appellant or the deceased Gulia Khatoon was subjected to cruelty and harassment by the appellant and therefore, prosecution could not succeed to prove this fact beyond all shadow of reasonable doubts that demand of Rs. 25,000/- was made by the appellant and furthermore, prosecution also failed to prove this fact that the deceased Gulia Khatoon was subjected to cruelty and harassment in connection with dowry demand soon before her death by the appellant because there is nothing on record to show this fact that between 1994 to 1997 the deceased Gulia Khatoon was ever subjected to cruelty and harassment by the appellant.

Learned Addl. Sessions Judge at para 30 of the impugned judgment mentioned that after Panchyati of 1994 the deceased was taken away to her in-laws house and after that her dead body having sustained injuries was found in the bed of a river. So the aforesaid circumstance suggests that the deceased Gulia Khatoon was subjected to cruelty and harassment in connection with dowry demand soon before her death but in my view, the aforesaid finding of learned Addl. Sessions Judge is only on the basis of surmises and conjectures because after 1994 not a single complain regarding torture or demand of dowry was made either by PW 4 or by any other prosecution witness and furthermore, there is also nothing in the evidence of prosecution witnesses that the deceased Gulia Khatoon had made any complaint in respect of illegal demand or her torture after 1994. According to the prosecution case itself, dead body of the deceased Gulia Khatoon was found in a bed of river Gandak and there is no witness to say this fact that before recovery of her dead body, she was seen in the company of the appellant. Furthermore, no prosecution witnesses claimed that he had seen the actual killing of the deceased Gulia Khatoon and PW 4 admitted at para 3 of his examination-in-chief that on the alleged date of occurrence, he as well as appellant and his brothers along with their family members were invited at the house of one Azharuddin and the appellant as well as his brothers along with their family members attended the function at the house of Azharuddin but his son-in-law and daughter were not present in the aforesaid feast and when he enquired from the appellant about his daughter and son-in-law, appellant and his other family members did not give any satisfactory answer and after that on the next day, he went to in-laws house of his daughter where only the appellant was present and on query, he disclosed that his daughter fled away from his house. The aforesaid statement of PW 4 goes to show that on the alleged date of occurrence, appellant was not present at his home rather he had gone to the house of Azharuddin to attend function. Therefore, even if some injuries were found on the person of the deceased Gulia Khatoon, then also, prosecution could not succeed to establish this fact that the above stated injuries were caused by the appellant or the deceased Gulia Khatoon was subjected to cruelty and harassment by the appellant soon before her death and therefore, in my view, learned Addl. Sessions Judge gave erroneous finding at para 30 of the impugned judgment.

On the basis of the aforesaid discussions, it is explicit clear that prosecution miserably failed to prove one of the most important ingredients of section 304B of the IPC that the deceased was subjected to cruelty and harassment soon before her death by the appellant.

It is settled principle of law that to attract the provision of section 113B of the Evidence Act, prosecution has to prove that the concerned woman must have been ''soon before her death'' subjected to cruelty or harassment for or in connection with the demand of dowry but as I have stated above that prosecution could not succeed to prove this fact that after 1994, deceased Gulia Khatoon was subjected to cruelty or harassment for or in connection with the demand of dowry by the appellant and, therefore, in this case, presumption of section 113B of the Evidence Act cannot be drawn against the appellant.

On the basis of the aforesaid discussions, I am of the opinion that the impugned judgment of conviction as well as sentence order dated 13.3.2001 are liable to be set aside because the prosecution has miserably failed to prove the charges under sections 304B, 201 and 498A of the IPC against the appellant. Thus, this criminal appeal is allowed and the impugned judgment of conviction as well as sentence order dated 13.3.2001 passed by learned Addl. Sessions Judge II, Khagaria in Sessions case No. 195/1997 are, hereby, set aside. Accordingly, appellant is acquitted of the charges. The appellant is on bail. He is discharged from the liabilities of his bail bonds.