Nehal Asgar and Another vs State of Bihar (Now Jharkhand)

Lakshman Uraon, J.—The appellants have preferred this appeal against the judgment and conviction dated 5.1.2000 passed by Shri Ghanshyam Prasad, learned Sessions Judge, Palamau, Daltonganj in Sessions Trial No. 454 of 1996 whereby and whereunder the appellants have been convicted under Sections 304B/201/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life u/s 304B of the IPC and Rigorous Imprisonment for three years and pay a fine of Rs. 10,000/- each for the offence punish-able under Sections 201/34 of the IPC. In case of default to pay the fine, the convicts were directed to go simple imprisonment for six months each. The learned Sessions Judge directed both the sentences of each convict in respect of the each count shall run concurrently.

The prosecution case as per fardbeyan (Ext. 4) of the informant Shami Ahmad Ansari (PW 9) recorded by SI Birendra Kumar Sinha, O/C of Tandwa PS on 6.8.1995 at 10.00 a.m. near North Koel Canal Kulharia Gate No. RC 143.40 in which the informant has alleged that his daughter Tarannum was married with appellant No. 1 Neharl Asgar of village Mohammadabad. Police Station Hus-sainabad. District Palamau in the year 1992. He spent about Rs. 35,000/- in the marriage of his daughter. After some days, both the appellants started torturing Tarannum for dowry amount of Rs. 10,000/-. They used to assault her. Fifteen days prior to the alleged occurrence also Tarannum had informed the informant regarding assault and torture for Rs. 10,000/-. Informant went to the matrimonial house of Tarannum 10 days prior to the alleged occurrence and he made both the appellants to understand and also requested to allow Tarannum to go to her parents house after Rukhsadi only because she was carrying seven months pregnancy. But the appellants refused his request. All of a sudden on 2.8.1995 informant came to know that his daughter is missing from her matrimonial house of village Mohammadabad. Nazir Ahmad. brother of the informant, went to Mohammadabad and inquired about Tarannum. Appellant No. 1. Nehal Asgar simply informed that last night Tarannum Ara fled away somewhere else. Thereafter the members of the family of the informant and villagers went in search of Tarannum Ara. On 4.8.1995 they came to know that dead body of a female was seen at North Koel Main Canal Lotania Gate. The dead body was flown by opening gate of canal and the dead body was also seen at Bara Gate. There some unknown person by opening the door of the canal had flown the dead body. On 5.8.1995 Ahmad Ali and Washi Ahmad found the dead body at North Koel Main Canal Kulhariya Gate No. RD-143.40. They identified the dead body to be that of Tarannum Ara. Washi Ahmad and Nazir Ahmad Mian remained at that place, whereas Ahmad Ali informed the informant. Informant along with villagers went to the Kulhariya Gate and brought the dead body of Tarannum Ara out of the canal waters. The O/C Tandwa PS prepared inquest report (Ext. 5) of the dead body and sent the dead body to Sadar Hospital Aurangabad for post mortem examination and the fardbeyan (Ext. - 4) of the informant recorded by O/C Tandwa PS was forwarded to the O/C Hussainabad PS for registration of a case as the P/O lies in the jurisdiction of Husssainabad PS. On that basis case registered on 7.8.1995 and formal FIR (Ext. 2) was drawn on the same day at 15.30 hour. After investigation, O/C Hussainabad PS submitted charge-sheet under Sections 304B/201/34 IPC against appellant No. 1 Nehal Asgar, whereas SI N.P. Singh submitted supplementary charge-sheet against appellant No. 2 Julekha Bibi u/s 304B/201/34, IPC.

The prosecution has examined altogether 16 witness in order to bring home in that it levelled against the appellant. PW 1 Khurshid Alam, PW 2 Washim Ahmad and PW 3 Md. Nazir are the uncles of the deceased Tarannum Ara. PW 4 Ahmad Ali Ansari is the witness of the inquest report on which he signed (Ext. 1) PW 5 Mustaq Ahmad is the brother-in-law (Bahnoi) of the deceased Tarannum Ara and is a shopkeeper of motor parts at Daltonganj PW 6 Manzoor Alam, PW 7 Mumtaz Ahmad, PW 8 Sarbari Khatoon, PW 9 informant Shami Ahmad Ansari (father of the deceased) and PW 10 Jahirun Bibi (wife of PW 9) have claimed that Tarannum Ara was assaulted and tortured for Rs. 10,000/- as dowry demand who also claimed to have identified the dead body to be that of Tarannum Ara. PW 11 Saimun Bibi and PW 12 Sajada Bibi are hearsay witnesses that they have heard regarding torture to Tarannum Ara by these appellants. PW 13 Sideshwar Prasad is the IO of the case. PW 14 Dr. Wasim Ahmad assisted PW 15 Dr. N.C. Sinha in conducting post mortem examination on the dead body of Tarannum Ara. PW 16 Ram Krishna Mishra is a formal witness who has proved the fardbeyan (Ext. 4) in the pen and signature of Birendra Kumar Sinha, O/C Tandwa PS, Aurangabad. He also proved inquest report (Ext. 5) in the pen and signature of Birendra Kumar Sinha.

The learned Sessions Judge relied the evidence of the prosecution regarding demand of Rs. 10,000/- and when the said amount was not paid, then Tarannum Ara was assaulted, tortured and ultimately she was strangulated and the dead body was thrown in the canal. The evidence of PW 15 who conducted the post mortem examination, was also relied by the learned Sessions Judge and opined that the marriage was performed in the year 1992 and Tarannum Ara was found murdered in the year 1996. Hence he convicted the appellants and sentenced under Sections 304B/34 IPC and 201/34, IPC.

The learned for the appellants has assailed the conviction and sentence passed by the learned Sessions Judge on the ground that as per fardbeyan of the informant, Tarannum Ara was carrying pregnancy of seven months, whereas PW 15 Dr. N.C. Sinha who conducted the post mortem examination on the dead body of Tarannum did not find any pregnancy of the dead body. The learned counsel for the appellants also submitted that the genesis of the alleged occurrence regarding demand of Rs. 10,000/- and also regarding assault and torture, could not be proved by the prosecution. All the witnesses are relatives of the deceased who are hearsay witnesses except her parents PW 9 Shami Ahmad (informant) and PW 10 Jahirun Bibi, mother of the deceased. It was also submitted that the doctor who conducted the post mortem examination had found the dead body fully decomposed, foul smelling and maggots were found in abundance. The doctor could not opine as to whether decomposed dead body was in a state of identification or not material exhibit I is the photo of the dead body alleged to be that of Tarannum Ara. The photo shows that the dead body was swollen and it could not have been identified to be that of Tarannum Ara as it was recovered after 5 days of her missing from her matrimonial house. It was also submitted by the learned counsel for the appellant that Nehal Asgar was all along present with the informant and the uncles of the deceased, PWs 1, 2 and 3, in searching Tarannum Ara for 2-3 days. When the dead body was recovered which was alleged to be that of Tarannum Ara, it was not claimed by Nehal Asgar to be the dead body of his wife.

Learned APP in course of argument has submitted that the prosecution witnesses are related to the deceased have deposed that Tarannum Ara was assaulted and tortured due to non-fulfillment of dowry amount of Rs. 10,000/-. The doctor PW 15 who conducted the post mortem examination on the dead body found eyes closed, tongue protruded, lower part of uterus protruded through vagina. On dissection skull brain and its menages-soft end, neck thyroid cartilage fractured with dark scantly clothed blood around tissue. The cause of death was strangulation leading to asphyxia within 3-5 days from the date of post mortem examination on 6.8.1995 at 6.10 p.m. It was also submitted that just within three years of the marriage of Tarannum Ara with appellant No. 1 Nehal Asgar, Tarannum Ara was found murdered. It was also submitted that the learned Sessions Judge rightly convicted the appellants under Sections 304/34, IPC and 201/34, IPC.

Learned Sessions Judge, Palamau at Daltonganj has taken into consideration that Tarannum, wife of appellant Nehal Asgar, was found murdered while she was in her matrimonial house within three years of her marriage. Prior to her death, she was being tortured for demand of Rs. 10,000/- as dowry and has also presumed as provided u/s 133(B) of the Indian Evidence Act regarding demand of dowry and torture to attract Section 304B of the IPC.

The genesis of the alleged occurrence is regarding torture for Rs. 10,000/-as dowry prior to the death of Tarannum who was daughter of PW 9 Shami Ahmad (informant) and PW 10 Jahirun Bibi (wife of the informant). PW 1 Khurshid Alam, PW 2 Washi Ahmad, PW 3 Md. Nazir and PW 12 Sajada Bibi are the uncles and aunt of the deceased Tarannum Ara. So these witnesses are the most competent witnesses . regarding demand of dowry and torture to Tarannum Ara, which were relied by the learned Sessions Judge, Palamau at Daltonganj . PW 1 is a hearsay witness regarding demand of dowry and torture. In para 2 he has deposed that in his presence, no demand of any dowry was made by these appellants. PW 2 Washi Ahmad is also a hearsay witness who has deposed that he heard from his brother (the informant) and other members of his family regarding demand of Rs. 10,000/- and torture to Tarannum Ara. In paragraph 3, this witness has deposed that prior to the death of Tarannum Ara, he had hot heard, nor had stated anywhere regarding demand of dowry and torture to Tarannum Ara. On the other hand, he has deposed that after marriage, Tarannum Ara had gone to her parents house 5-6 times, but she had not whispered anything alleging torture to her regarding non-fulfillment of dowry demand of Rs. 10,000/-. He had also not stated before the IO that Tarannum Ara was tortured for demand of Rs. 10,000/- as dowry. He had not seen assaulting Tarannum Ara by these appellants. PW 3 Md. Nazir in para 2 has especially deposed that these appellants-accused had not demanded any dowry. PW 2 Sajada Bibi has deposed that Julekha Bibi and her sons Nehal Asgar were demanding dowry, which was informed to her by Tarannum Ara at village Sheikhpura. PW 6 Manzoor Alam in his chief has deposed that both the appellants were assaulting and threatening Tarannum Ara for Rs. 10,000/-, but in para 2 he has deposed that he had not seen assaulting Tarannum Ara by these appellants. In his , presence, these appellants had not demanded any dowry amount; rather this witness was informed regarding demand of dowry and torture to deceased Tarannum Ara. PW 7 Mumtaz Ahmad is not eyewitness regarding torture arid demand of dowry or murder of Tarannum Ara. He carries on his business at Daltonganj. Twenty-five days prior to the alleged occurrence, Tarannum Ara had returned to Daltonganj after treating her husband Nehal Asgar from Ranchi. This witness had met them at Daltonganj Bus-stand and there was no any allegation made by Tarannum Ara to him regarding torture for demand of dowry. PW 6 in para 2 has deposed that his statement was not recorded by the IO. He had heard that Tarannum Ara was being tortured for demand of dowry. PW 10 mother of the deceased, has deposed that six months prior to the alleged occurrence when Tarannum Ara @ Baby had been to Sheikhpura. then she had narrated to her parents regarding torture for Rs. 10,000/-. But in the same breath, she has deposed that both these appellants had not demanded any dowry amount. She had also not seen assaulting Tarannum by these appellants. PW 9 Shami Ahmad (informant), who is father of the deceased, has deposed that his daughter was tortured for demand of dowry of Rs, 10,000/- and when the demand was not fulfilled, Tarannum Ara was murdered and her dead body was thrown into the Canal. But he had not informed anybody else and had not called any panchayti. Thus, the evidence of PW 9, the informant Shami Ahmad Ansari, regarding demand of dowry and torturing to his daughter Taran-num Ara by these appellants could not be supported by the near relatives who are PWs 1, 2, 3 and 12. The other witnesses are hearsay witnesses regarding demand of dowry & torture. In their presence, no such demand was made. This fact is corroborated by Jahirun Bibi (PW 10, mother of the deceased). Both these appellants had not demanded any dowry amount. In view of these facts, as discussed above, and considering the, evidence available on the case record, I find that there is no evidence regarding demand of dowry and torture by assaulting Tarannum Ara @ Baby. Thus, the finding of the learned Sessions Judge, Palamau at Daltonganj in this respect is based only on presumption.

The learned counsel for the appellants has challenged that appellants caused the murder of Tarannum Ara only for Rs. 10,000/- as dowry amount was not paid to them. There is no direct eye-witness regarding the torture for demand of Rs. 10,000/- and also there is no eye-witness as to who caused murder of Tarannum Ara and threw the dead body into the canal which is half kilometre away from the village Mohammadabad, PS- Hussainabad. So there is only circumstantial evidence regarding the murder of Tarannum Ara. When Tarannum Ara was found missing on 2.8.1995 at her father-in-law''s house at village Mohammadabad, then the informant and his wife were informed by appellant Nehal Asgar. The dead body was being searched since thereafter. During those period as deposed by PW 2 Washi Ahmad in para 1, Nehal Asgar, husband of the deceased, informed them who were in search of Tarannum Ara along with Nehal Asgar for about two days. On the third day of their search, dead body of one woman was found which was identified to be that of the dead body of Tarannum Ara. At that time also, appellant Nehal Asgar was present, but he did not claim the dead body to be the dead body of his wife Tarannum Ara. On the other hand, as deposed by PW 7 Mumtaz Ahmad, deceased Tarannum Ara was seen 20 days prior to the alleged occurrence with her husband Nehal Asgar at Daltonganj Bus-stand who had just returned after treatment of Nehal Asgar from Ranchi who had sustained injuries in a rail accident. This shows that there was cordial relationship in between Tarannum Ara and the appellant Nehal Asgar. This gets further strengthened by the evidence of PW 2 Washi Ahmad who is uncle of the deceased that Nehal Asgar, husband, was all along present with his father-in-law and uncles-in-law in search of Tarannum Ara till the recovery of a dead body of a woman after the fourth day from the date of missing from her father-in-law''s house on 2.8.1995. The dead body of a woman, which was found 20-25 kilometre away at Ahmadnagar, was, identified to be that of Tarannum Ara, But material, Exhibit No. 1, which is the photo of a woman is totally in a decomposed position, PW 15 Dr. N.C. Sinha assisted by Dr. Washim Ahmad (PW 14) in conducting the post mortem examination on the dead body alleged to ,be that of Tarannum Ara on 6.8.1995 found the body full decomposed and swollen with foul smell and mogotis present. The neck throat cartilage was found ruptured with dark scantly clotted blood. Stomach was empty. Uterus was contracted. As per opinion of this medical witness PW 15, the death was due to strangulation leading to asphyxia within 3-5 days from the time and date of post mortem examination. He could not give, any definite opinion as to whether decomposed dead body was in a state of identification or not. Material Exhibit No. 1 which is photo of a dead body of a woman is swollen and completely decomposed. This dead body could not have been identified to be that of any particular woman what to say that of Tarannum Ara. PW ,9 Shami Ahmad, informant of this case, has deposed that when he heard regarding torture to his daughter, then 10 days prior to the alleged missing of Tarannum Ara from her father-in-law''s house, he had been to her in-law''s village house and made the appellant to understand and also requested for Rukhsatti of Tarannum Ara as she was carrying seven months pregnancy. In course of his evidence in Court, he has deposed that Tarannum Ara was pregnant of seven months. The doctor (PW 15) who conducted the post mortem examination on the dead body of woman did not find any symptom of pregnancy what to say pregnancy of seven months. On the other hand, he found the uterus contracted. PW 10, mother of the deceased, has deposed that when Tarannum Ara had gone to her parent''s house six months prior to her death, then she was not found pregnant. Since thereafter, she went and lived continuously in her father-in-law''s house at Mohammadabad, PS-Hus-sainabad. This shows that six months prior to the death of Tarannum Ara, she was not pregnant. Since thereafter, she remained in her father-in-law''s house. When informant PW 9 had been to the father-in-law''s house of Tarannum Ara, then he found her pregnant of seven months: The dead body, which was in a completely decomposed condition, is alleged to have been identified to be that of Tarannum Ara by PWs 1, 2, 3, 4, 7, 9 and 10. The evidence of these witnesses regarding identification of dead body to be .that of Tarannum Ara is not trustworthy, only because they had not given any identification mark found on the dead body to resemble with that of any mark or wearing parallel Sari, etc. to be that of Tarannum Ara. In view of this considered fact, I come to the conclusion that the dead body, which was found after four days of missing of Tarannum Ara from her father-in-law''s house, could not be traced out. The dead body, which was found to be that of a woman, was not found to be carrying any pregnancy of seven months. This is a strong circumstance to differ with the findings of the learned Court below that the dead body recovered from the canal water in a decomposed condition after four days of missing of Tarannum Ara from the father-in- law''s house was the dead body Tarannum Ara.

The place of occurrence has also not been established in this case where Tarannum Ara was assaulted to death. The IO PW 13 Sideshwar Prasad Sinha has simply deposed that the North Koel Canal is at a distance of half kilo metre from the house of the appellants and at a distance of 20-25 kilometres from that place where the dead body was found, within the jurisdiction of Tandwa PS. The O/C Tandwa PS recorded fardbeyan of the Informant Shami Ahmad and prepared the inquest report of the dead body of a woman and forwarded to the O/C Hussainabad PS for registration of a case. He did not find any objective finding In the house of the appellants. He could not find the place of occurrence i.e. the place where Tarannum Ara was strangulated to death. There is no evidence that acid was thrown on the face of Tarannum Ara, whereas PW 3 Md. Nazir in para 23 deposed that he saw the face of the dead body, Which was recovered from North Koel Canal Kulharia Gate No. RC 143.40 Kulharia branch Canal burnt with acid. If it is so, then the decomposed dead body, whose face was burnt with acid, could not have been Identified to be that of Tarannum Ara.

As I have discussed above that there is no eye-witness of the alleged assault and murder of Tarannum Ara, the circumstantial evidence has not lead to the only conclusion that these appellants assaulted Tarannum Ara to death and her dead body was thrown into the North Koel Canal which is half kilometre away from the village Mohammadabad. The dead body was found at a distance of 20-25 k.m. away from that place within Tandwa Police Station jurisdiction at North Koel Main Canal Gate No. 143.40, Kulharia branch. No one had seen as to how the dead body was allowed to flow, 30 k.m. away from the village of the Informant or the village of the appellants. It has been deposed that the dead body was being flown by opening the Gate of the North Koel Main canal at two places by unknown persons. There was no alarm when the dead body was seen flowing on the canal prior to the recovery of the dead body at North Koel Canal Gate No. RD-143.40. Thus, the evidence is totally absent regarding torture for Rs. 10,000/-and also causing the death of Tarannum Ara by assaulting her and strangulating her, thereafter throwing the dead body into the North Koel canal. In view of my above considered fact, I come to the conclusion that there is no eye-witness regarding demand of dowry and torture and also assault by these appellants to Tarannum Ara. The evidence regarding identification of the recovered dead body of a woman to be that of Tarannum Ara has also not been corroborated , by the ocular evidence of the informant PW 9 as stated by him in his fardbeyan (Ext. 4) and also the evidence of Dr. N.C. Sinha (PW 15) who did not find the dead body carrying any symptom of pregnancy what to say that of 7 months pregnancy. The place where Tarannum Ara was done to death has also not been established. The conduct of appellant Nehal Asgar that he informed the informant about the missing of his wife Tarannum Ara to his in-laws and also accompanied them in search of Tarannum Ara for three days till a dead body was one lady, was recovered. He did not claim the dead body to be the dead body of his wife Tarannum Ara. On the other hand, 20 days prior to the alleged occurrence, Tarannum Ara had returned to Daltonganj along with appellant Nehal Asgar after treating him at Ranchi. Thus, the conduct of Nehal Asgar shows that he had cordial relationship with his wife Tarannum Ara. The demand of dowry has also not been proved, In view of these considered facts I find that the learned Court below was misled in considering the hearsay evidence assuming that within three years of marriage of Tarannum Ara with Nehal Asgar, she was found murdered while she was living in her sasural at Moham-madabad, PS-Hussainabad, District Palamau. On the other hand, I find that the prosecution has failed to bring home the charge levelled against both the appellants under Sections 304B/34, IPC and 201/34, IPC beyond all shadow of reasonable doubts. Hence the benefit of doubts must go to the appellants.

In the result, this Criminal Appeal is allowed and the judgment and order of conviction and sentence passed by the learned Sessions Judge, Daltonganj at Palamau in Sessions Trial No. 454 of 1996 is hereby set aside and both the appellants-accused are hereby acquitted. As appellant No. 2 Julekha Bibi is on bail, she is discharged from the liability of the bail bond furnished in this case, whereas appellant No. 1 Nehal Asgar, who is in custody, is ordered to be released forthwith from the custody if not wanted in any other case.

Vishnu Deo Narayan, J.

I agree.