Zakir Hussain vs State of Jharkhand

Heard learned counsel for the appellant, Mr. Nilesh Kumar assisted by Mr. Abhishek Prasad, Advocates and Mrs. Niki Sinha, learned Addl. Public

Prosecutor appearing for the State.

The instant Criminal appeal is directed against the Judgment of conviction dated 17.12.2003 and order of sentence dated 18.12.2003, passed by the

learned 4th Addl. Sessions Judge, Fast Track Court, Garhwa, in Sessions Trial No.175 of 1999, whereby the sole appellant, Zakir Hussain has been

convicted for the offence punishable under Sections 498A, 304B of the Indian Penal Code and 3 /4 of the Dowry Prohibition Act and awarded

rigorous imprisonment for 8 years with a fine of Rs.5,000/- for the offence punishable under Section 304B of the Indian Penal Code and in default to

pay fine, he shall undergo one year simple imprisonment, but no separate sentence has been awarded for the offence punishable under Section 498A

of the Indian Penal Code and 3 /4 of the Dowry Prohibition Act.

The appeal has been preferred before this Court on 09.01.2004 against the said impugned judgment and the prayer for suspension of sentence and

grant of bail has been allowed vide order dated 16.09.2004 and since then, the matter is pending before this Hon'ble Court.

The prosecution case, is based upon the written report submitted by one Md. Islaam (P.W.5), brother of the victim before the Officer-in-Charge,

Garhwa, on 06.03.1998, alleging inter-alia as follows :- The informant has alleged that marriage of his sister (Sakina Bibi) was solemnized in the year

1994. It is alleged that his brother-in-law, Zakir Hussain, Tahir Hussain, Bigan Mian, Saidul Mian and Safikan Bibi were demanding colour Television

and scooter to be brought from her parents, but because of the poverty, the colour Television and scooter was not provided and for that, the

informant's sister was assaulted.

It is alleged that after being assaulted by the accused persons, sister used to come to the house of the informant and disclosed the entire thing. The

informant has alleged that on 06.03.1998, information was given to him by his maternal aunt, that Sakina Bibi (deceased) has been killed by her in-

laws, by hanging. The informant has stated that father of his brother-in-law disclosed him about the death of his sister. The informant has alleged that

due to nonfulfillment of demand of the scooter and colour television, the in-laws including the brother-in-law (husband of the victim) and other relatives

have killed his sister and they have hanged her so that people of the society may consider that she has committed suicide.

On the basis of the aforesaid 'fardbeyan' of the informant, Police has instituted First Information Report, being Garhwa P.S. Case No. 52 of 1998

(dated 06.03.1998) corresponding to G.R. No.136 of 1998 under Sections 498(A), 304(B) of the Indian Penal Code and 3 /4 of the Dowry Prohibition

Act.

After investigation, the Police has submitted charge-sheet vide Chargesheet No.99 of 1998 dated 29.05.1998 under Sections 498A, 304B of the

Indian Penal Code and 3 /4 of the Dowry Prohibition Act.

Cognizance of the offence has been taken vide order dated 04.06.1998 and the case has been committed to the Court of Sessions vide order dated

06.04.1999. The learned trial court has framed the charge under Sections 498A, 304B of the Indian Penal Code and 3 /4 of the Dowry Prohibition

Act, to which the accused pleaded his innocence and claimed to be tried.

The prosecution, in order to prove its case, has examined altogether ten witnesses and also exhibited documentary evidences in support of its case.

Abdul Rahman (father of the victim/deceased has been examined as P.W.1, Qadir Hussain (brother of the deceased) has been examined as P.W.2,

Zulekha Bibi (mother of the deceased) has been examined as P.W.3, Md. Hakim Hussain (seizure witness) has been examined as P.W.4, Md. Islaam

(informant and brother of the deceased) has been examined as P.W.5, Nabir Mian has been examined as P.W.6, Rajbali Chaudhary has been

examined as P.W.7, Ishhaq Ansari has been examined as P.W.8, Dr. B. K. Mundari has been examined as P.W.9 and Krishna Kant (Advocate's

clerk) has been examined as P.W.10.

Signature of the informant on the First Information Report has been proved and marked as Exhibit-1, Post-mortem report of the deceased has been

proved and marked as Exhibit-2, Inquest report of the deceased has been proved and marked as Exhibit-3 and formal First Information Report has

been proved and marked as Exhibit-4.

After closure of the prosecution evidence, the statement of the accused/appellant has been recorded under Section 313 Cr.P.C. on 05.11.2003 and

thereafter after hearing the parties, the learned Trial Court has passed the impugned judgment of conviction and order of sentence.

Mr. Nilesh Kumar, learned counsel appearing for the appellant has submitted, that from the evidence brought on record, no case under Section

304B of the Indian Penal Code is made out against the appellant nor it is case where the conviction of the appellant under Section 3 /4 of the Dowry

Prohibition Act can be made out.

Learned counsel appearing for the appellant has drawn attention of this Court towards the evidence of P.W.1 (Abdul Rahman). This witness being

the father of the deceased has categorically stated, in Para-11 of his examinationin-chief, that it was 'GOLAT' form of marriage, where both the sides

have solemnized marriage with the female members of other sides. This witness has further stated in Para-24 of his cross-examination, that at the

time of marriage, no payment of dowry was made. Learned counsel for the appellant has drawn attention of this Court that since it was 'GOLAT'

form of marriage, there was no demand of dowry, as such, basic ingredients for constituting an offence under Section 304B I.P.C. is lacking in this

case. He further drawn attention of this Court towards the provisions of Dowry Prohibition Act.

“Section 2 of the Dowry Prohibition Act, 1961 defines “dowry’ means any property or valuable security given or agreed to be given either

directly or indirectly â€

(a)by one party to a marriage to the other party to the marriage; or

(b)by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person. at or before or after the

marriage as consideration for the marriage of the said parties, but does not include dower or mahr in case of persons to whom the Muslim Personal

Law(Shariat) applies.â€​

Thus, learned counsel appearing for the appellant has submitted, that fromperusal of the the evidence of P.W.1, particularly in Para-24 of his

crossexamination, it appears that subsequent demand, as alleged by the prosecution with respect to colour television and scooter will not come under

the purview, as contemplated under Section 2 of the Dowry Prohibition Act and as such, conviction of the appellant under Section 3 /4 of the Dowry

Prohibition Act is not sustainable in the eyes of law.

Learned counsel for the appellant has further submitted that basicingredients for constituting an offence under Section 304B I.P.C. is also lacking

in this case. Section 304B I.P.C. reads as follows :-

“304-B. Dowry Death. :- (a) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal

circumstances within seven years of her marriage and (b) it is shown that soon before her death she was subjected to cruelty or harassment by her

husband or any relative of her husband for, or (c) in connection with, any demand for dowry, such death shall be called “dowry deathâ€, and such

husband or relative shall be deemed to have caused her death.â€​

Learned counsel appearing for the appellant has submitted that since the basic ingredients to constitute an offence under Section 304B of the

Indian Penal Code regarding demand of dowry is lacking, for convicting the appellant under Section 304B of the Indian Penal Code, as such, the same

is not sustainable in the eyes of law. He has further submitted, that it is true that the lady has died within 7 years of her marriage, as the marriage was

contracted in the year 1994 and death occurred on 06.03.1998, but there is neither any evidence brought on record by the prosecution that soon before

her death, the lady was subjected to cruelty nor there is evidence to the extent that any demand of scooter or colour television was made at the time

of marriage, but prosecution has subsequently developed the case. Learned counsel has reiterated his arguments by submitting that father of the

deceased had admitted that at the time of marriage, there was no demand of dowry, as the basic ingredients for constituting an offence is lacking and

as such, the conviction of the appellant cannot sustain in the eyes of law. Learned counsel appearing for the appellant has further drawn attention of

this Court towards the evidence of the prosecution, as made out, in the written report that victim has been killed and subsequently hanged by the

accused persons with an oblique motive, to give a different colour to the prosecution case.

Learned counsel appearing for the appellant has submitted, that from the evidence of P.W.1, leg of the victim was touching the ground and P.W.2,

brother of the deceased, has stated in para-3 of his examination-in-chief, that finger of the leg was touching the ground and at the same time, learned

counsel has drawn attention of this Court towards the inquest report which has been proved and marked as Exhibit-3. From perusal of Exhibit-3, it

appears that the inquest report prepared by the Sub Inspector of Police on 06.03.1998 at Column no.4, suggests that the leg of the lady was above one

“bittaâ€​ (approximately six inches) from the ground.

This Court has to accept the inquest report instead of accepting the oral statement of P.W.1 and P.W.2 which are contradictory to each other.

The Hon'ble Supreme Court has held that a witness can lie, but a circumstance will not lie. Here is a case where the inquest report, prepared at very

initial stage of investigation, shows that the leg of the victim was not touching the ground, as such, this Court is compelled to accept the same because

at the time of preparation of the inquest report, no such allegation was made, that inquest report was not correctly prepared, rather the same was

prepared in presence of the informant, Md. Islaam (P.W.5), whose signature is also there, as such, this Court is of the view that evidence of P.W.1

and P.W.2 with respect to touching the ground by the leg of the lady is unacceptable.

Learned counsel appearing for the appellant has drawn attention of this Court towards the post -mortem report. From the evidence of Dr. B. K.

Mundari (P.W.9) who has found oblique ligature mark around the neck passing in between chin and larynx 22†x 2/3†x 1/3†with knot on back

side of the neck, below occipital region. Doctor has not found any external injury other than the mentioned one, on the person of the deceased. If the

prosecution case is taken to be true, as made out in the First Information Report, then it is the case where the accused persons have killed the lady

and thereafter hanged her, so that a different colour to the prosecution case can be given, but that version of the prosecution case is not getting

support, either from the inquest report or from the post- mortem report.

Learned counsel for the appellant has submitted, that from the evidence of P.W.5, Md. Islaam (informant of this case) particularly in Paras 4, 8, 9

and 10, the informant has stated that the lady has committed suicide in a small room which was closed from inside, as stated in Para-4. Further this

witness, during cross-examination, in Paras 6 and 8 has admitted that on the basis of suspicion, he has filed a case, but in reality the accused persons

were neither guilty nor they have committed any murder. This witness has further stated in Para-9 of his cross-examination, that his sister has never

disclosed before him, that the accused persons were demanding colour television and scooter. He has further stated in Para-10 of his cross-

examination that his parents have never disclosed about demand of colour television and scooter to him.

Learned counsel for the appellant relying on the aforesaid submission has submitted, that basic ingredients of demand or dowry or cruelty is

lacking in this case. Learned counsel in support of his submission has put reliance in a judgment passed by the Hon'ble Supreme Court in the case of

Baijnath And Others vs State of Madhya Pradesh, reported in (2017) 1 Supreme Court Cases 101 wherein it has been held that “prosecution

proves beyond doubt that deceased was subjected to cruelty/ harassment in connection with dowry demand soon before her death, presumption under

S. 113-B can be invoked.â€​

Mr. Nilesh Kumar, learned counsel for the appellant has submitted that since the basic duty has not been discharged by the prosecution as the lack

of demand of dowry or cruelty soon before her death has not been proved, as such, the conviction of the appellant under Section 304B I.P.C. cannot

sustain in the eyes of law. He has also relied upon a judgment passed by the Hon'ble Supreme Court in the case of Tirath Kumari and another Vs.

State of Haryana , reported in AIR 2005 Supreme Court 4429. Hon'ble the Supreme Court has held that since there is no evidence to show that soon

before her death deceased was subjected to cruelty by husband or in-laws in connection with demand of dowry- Accused persons are entitled to

benefit of doubt Conviction liable to be set aside. He has drawn attention of this Court by submitting, that from perusal of evidence of P.W.1 (father of

the deceased), in Para-24 and the evidence of P.W.5, Md. Islaam (Informant of this case) in Paras 6, 8, 9 and 10, they have not supported the case of

the prosecution so far as demand of dowry is concerned or cruelty soon before death, the conviction of the appellant under Section 304B I.P.C.

cannot sustain in the eyes of law.

Learned counsel appearing for the appellant has drawn attention of this Court towards the provisions of Section 2 of the Dowry Prohibition Act,

1961.

“Section 2 of the Dowry Prohibition Act, 1961 defines “dowry’ means any property or valuable security given or agreed to be given either

directly or indirectly â€

(a)by one party to a marriage to the other party to the marriage; or

(b)by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person. at or before or after the

marriage as consideration for the marriage of the said parties, but does not include dower or mahr in case of persons to whom the Muslim Personal

Law(Shariat) applies.â€​

Learned counsel appearing for the appellant has also put reliance in the case of APPASAHEB AND ANOTHER VS. STATE OF

MAHARASHTRA, reported in (2007) 9 Supreme Court Cases 721, wherein it has been held that “correlation between the giving or taking of

property or valuable security with the marriage of the parties is essential â€" On facts held, demand for money on account of some financial

stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry â€" Hence, no demand

for dowry could be said to be made by accused â€" appellants.â€​

Mr. Nilesh Kumar, learned counsel appearing for the appellant has drawn attention of this Court towards subsequent demand of dowry which was

made as per the prosecution case after 2 years of marriage, it cannot be termed as demand of dowry in view of the judgment reported in (2007) 9

Supreme Court Cases 721 and as such, the conviction of the appellant under Section 304B of the Indian Penal Code and 3 /4 of the Dowry Prohibition

Act, are also not sustainable in the eyes of law.

Learned counsel appearing for the appellant has drawn attention of this Court, that Investigating officer of this case has not been examined and as

such, the appellant has been seriously prejudiced for non-examination of the Investigating officer, as certain facts which has to be cross-examined by

the Investigating officer were not available to the appellant. The contradiction with regard to touching the ground is one of such facts, which has to be

ascertained by the Investigating officer, but since the inquest report is proved that the leg of the deceased was not touching, apart from the fact that

the statement of P.W.5, as stated in para-4 of his examination-in-chief that the girl has committed suicide in a small room, which was closed from

inside, is sufficient to prove that the prosecution has miserably failed to prove its basic duty. The girl might have committed suicide, but the charge has

been framed against the appellant under Section 304B of the Indian Penal Code and the appellant is the husband and the charge has been framed

against him. In that view of the matter, learned counsel appearing for the appellant has submitted, that the learned trial court has miserably failed in

convicting the appellant as the prosecution has miserably failed to prove its case beyond all reasonable of doubt or to bring within the ambit of Section

113 B of the Indian Evidence Act, as such, the appellant may be acquitted from the charge.

Learned counsel appearing for the appellant has further submitted that no evidence has been discussed so far Section 498A of the Indian Penal

Code is concerned. No substantial sentence has been awarded by the learned trial court since there is no material to suggest that soon before death of

the lady, she was subjected to cruelty. If the evidence of P.W.1, P.W.2 and P.W.5 read together, then it is a case that there is no evidence with

respect to cruelty nor any opinion by any authority was given with respect to the cruelty, as such, the conviction of the appellant under Section 498A

of the Indian Penal Code is also not sustainable in the eyes of law.

Mrs. Niki Sinha, learned Addl. Public Prosecutor appearing for the State, while supporting the impugned judgment of conviction and order of

sentence, has submitted, that the lady has died within 4 years of marriage in the house of her in-law's, under abnormal circumstances by hanging, as

such, the conviction of the appellant is justified, as passed by the learned trial court. She has further submitted that, since there was demand of scooter

and colour television and because of non-fulfilment of the demand, the lady has been killed. The appellant has not explained, as to how the lady died at

her in-law's house, as such, the impugned judgment has been passed by the learned trial court is justified.

Having heard Mr. Nilesh Kumar assisted by Mr. Abhishek Prasad, learned counsel for the appellant and Mrs. Niki Sinha, learned Addl. Public

Prosecutor appearing for the State and on perusal of the records, it appears that the lady died within 4 years of marriage at her in-law's house, in

abnormal circumstances, but these are not sufficient to constitute an offence under Section 304B of the Indian Penal Code. The basic ingredients

which is also required under the law is demand of dowry and cruelty, soon before her death. In the present case from the evidence of P.W.1, P.W.2

and P.W.5, the basic ingredients with respect to demand of dowry, as envisaged under Section 2 of the Dowry Prohibition Act, 1961, is completely

lacking. So far as cruelty soon before death is concerned, there is no evidence on record, as such, the conviction of the appellant under Sections 304B,

498A of the Indian Penal Code and 3 /4 of the Dowry Prohibition Act, are unsustainable in the eyes of law. The post- mortem report and the inquest

report suggest that no external or internal injury was found on the body and from the evidence of P.W.5 at Para-4, the lady committed suicide in a

small room closing the door from inside, as stated by the informant (P.W.5- Md. Islaam). The informant has further stated, that on the basis of the

suspicion, he has filed this case and accused persons were neither guilty nor they have committed any murder. Thus, the accused persons, who have

not committed murder of the lady and under such background, this Court is compelled to accept the evidence brought on record and acquit the

appellant from the judgment of conviction and order of sentence passed by the learned trial court.

Accordingly, the judgment of conviction dated 17.12.2003 and order of sentence dated 18.12.2003, in Sessions Trial No.175 of 1999 passed by the

learned 4th Addl. Sessions Judge, Fast Track Court, Garhwa, is hereby set aside.

The appellant is already on bail and as such, he is discharged from the liability of the bail bonds.

Accordingly, the instant appeal stands allowed.

Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.