Md. Sajjad @ Sajjad Ansari vs The State Of Jharkhand
2024 Latest Caselaw 3510 Jhar

Jharkhand High Court

Md. Sajjad @ Sajjad Ansari vs The State Of Jharkhand on 2 April, 2024

Author: Ananda Sen

Bench: Ananda Sen, Subhash Chand

            IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         Cr. Appeal (D.B.) No. 1049 of 2023
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            Md. Sajjad @ Sajjad Ansari                    ... Appellant(s).
                                      Versus
            The State of Jharkhand                        ... Respondent(s).
                                      ------
            CORAM        :     SRI ANANDA SEN, J.

SRI SUBHASH CHAND, J.

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            For the Appellant(s)      : Mr. Nikhilesh Kr. Chatterjee Advocate
                                        Mr. Shiv Prasad, Advocate
            For the State             : Mrs. Kumari Rashmi, A. P.P.
                                      .........

05 /02.04.2024: This case has been listed today under the heading "For

Orders" to consider the suspension of sentence of the appellant and to release him bail during pendency of this appeal.

2. Learned counsel for the appellant argues the entire case on merits while referring to the entire Trial Court Records i.e. the evidence and exhibits.

3. Learned counsel for the State also argues the case in entirety.

4. The Trial Court Records has already been received and this appeal is already admitted for final hearing. Both the parties have the documents, which are necessary for hearing. At this stage, we proposed the appellant and State as to whether they are ready for final hearing of this Criminal Appeal.

5. Both of them agrees that they are ready for final hearing.

6. Considering their submissions and their agreements, this appeal is taken up for final hearing immediately.

7. In this appeal, the sole appellant is convicted under Section 304-B of the Indian Penal Code in connection with Sessions Trial No.09 of 2020 and sentenced to undergo R.I. for 15 years.

8. Learned counsel for the appellant submits that conviction under Section 304-B of IPC is absolutely bad as there is no evidence to convict the appellant under the aforesaid Section. He contend that there is no evidence of demand of dowry soon before death. Even the informant has stated that there was no demand. In absence of any demand for dowry, the charge under Section 304-B of IPC cannot be proved. Further, he submits that though the deceased died within seven years of marriage and death which has occurred, is unnatural but there is no evidence that the appellant had ever perpetuated any torture on the deceased for demand of dowry. In absence of the aforesaid evidence, Section 304-B of IPC is not applicable. So far as the evidence is concerned, he submits that all the witnesses including the informant have not supported the prosecution case of demand of dowry. When there is no evidence of demand of dowry, even if the deceased died an unnatural death within seven years of marriage, appellant cannot be convicted under Section 304-B of IPC.

9. Learned counsel for the State admitted that there is no evidence of demand of dowry soon before death nor there are any evidence of torture, either mental or physical, but he submits that admittedly the death is within seven years of marriage and is unnatural as the deceased committed suicide.

10. After hearing the arguments, we have gone through the entire Trial Court Records. The FIR has been lodged by the informant- Israfil Ansari. He has stated that in September 2018 he got his daughter Gulnaz Begum married to Md. Sajjad Ansari. One or two months after marriage his son-in-law (the accused) started torturing his daughter for not getting a motorcycle in dowry. On 24.07.2019 at 5 P.M. he came to know that his daughter has hanged herself. On getting information he went to Village Bijra (matrimonial village of his daughter) with Rafique Ansari, Jakir Ansari, Kajim Ansari and others. There he saw the dead body of his daughter lying on the verandah of the house of his son-in-law (accused). It was claimed that his daughter was murdered by son-in-law- Sajjad Ansari due to non-fulfillment of demand of dowry.

11. After closure of the Investigation, police submitted chargesheet under Section 304-B of IPC.

12. To prove the case of the prosecution, seven witnesses were examined, which are as follows:-

(i)P.W.-1- Islam Miyan

(ii)P.W.-2- Meraj Miyan @ Meraj Ansari

(iii) P.W.-3- Jiyaul Haque Ansari @ Mister

(iv)P.W.-4- Kamrun Bibi

(v)P.W.5- Israfil Ansari/informant

(vi)P.W.-6- Dr. Surendra Kumar Singh

(vii)P.W.-7- Rambalak Singh Prosecution also adduced following documentary evidence:-

Exhibit-1 Signature of Jiyaul Haque Ansari on seizure list. Exhibit-2 Signature of Israfil Ansari/ Informant on Fardbeyan Exhibit-3 Postmortem report Exhibit-4 Seizure List Exhibit-5 Fardbeyan Exhibit-6 Formal FIR

13. After hearing the arguments of the parties, the Trial Court convicted the sole appellant under Section 304-B of IPC and sentenced him for rigorous imprisonment for fifteen years.

14. After going through the evidence, we find that it is an admitted case that the deceased died an unnatural death within seven years of marriage. The deceased was married wife of this appellant.

Section 304-B of IPC reads as follows:-

304-B. Dowry death.--"(1)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 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 in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death. Explanation.-- For the purpose of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).(2)Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."

As per Section 113-B of the Evidence Act, the onus is upon the accused-appellant to prove his innocence, provided that the prosecution has been able to prima facie establish three facts,

which are; (a) Death occurred within seven years of marriage, (ii) Death is unnatural and (iii) There is evidence of demand of dowry and torture soon before death.

Section 113-B of the Indian Evidence Act, 1872 reads as follows:-

113-B. Presumption as to dowry death.- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation. - For the purpose of this section, "dowry death" shall have the same meaning as in Section 304-B of Indian Penal Code (45 of 1860)].

As per the provision, if only the prosecution is able to establish these three ingredients, then the burden will shift upon the accused, otherwise it is the prosecution, who has to prove its case beyond all reasonable doubt. In this case, the charge has been framed under Section 304-B of IPC and not under Section 302 of IPC.

15. After going through the evidence, we find that P.W.-1 is declared hostile. P.W.-3 has not whispered about any demand of dowry or torture. He is only signatory to the seizure memo and saw the dead body lying in the bed. He deposed that he has stated before the police that accused demanded motorcycle and was torturing the deceased. In cross-examination, he admitted that dowry was not demanded in his presence. So on the point of demand of dowry he is hearsay. He also does not disclose when such demand was made. P.W.-4 is the mother of the deceased, who stated that she was not at home on the date of occurrence. She admitted that motorcycle was not given at the time of marriage. P.W.-2 is father of the accused-appellant. He stated that when he came back to his house, he could know about the incident. He saw the dead body with the dupatta tied around her neck. P.W.-6 is the Medical Officer, who conducted the postmortem, he found the following injuries:-

Ante-mortem injury

(i)One black brown ligature mark covering throat, both side angle of mandible present. (2 cm thickness approximate).

(ii)Brown colour bruise 3 cm x 3 cm on upper part of mid chest. Internal dissection:-

A)Brain and meninges- Congested. B)Ecchymoses under the ligature mark of throat. C)Fracture of hyoid bone.

D)Lung and heart congested. E)Stomach- Semi digested food. F)Liver, Kidney, Spline- Congested. G)Uterus- non gravid.

16. From the evidence of P.W-6 Doctor, we find that cause of death was due to hanging. There was no other injury found on the person of the deceased. In cross-examination, he specifically stated that the cause of death was suicidal hanging.

17. P.W.-7 is the Investigating Officer, who stated that the witnesses had told him that the deceased has committed suicide. He prepared the inquest report and the seizure list. He inspected the place of occurrence and obtained the postmortem report also. He also submitted chargesheet under Section 304-B of IPC.

18. In this case the main witness is P.W.-5, who stated that the appellant was married to his daughter and death occurred within seven years of the marriage. On the point of dowry, he stated that after 5 to 6 months of the marriage, motorcycle was given to him. He stated that he received the information of the death of his daughter, but in paragraph 7 he stated that only on the basis of suspicion he has lodged this case. He also stated that in same paragraph that at the time of marriage, some gift and dowry was given, but thereafter there was no demand of dowry. In paragraph 8 he stated that he came to know that his son-in- law has got no role in this occurrence.

19. Thus, from the evidence, we find that one of the basic ingredients to prove the case under Section 304-B of IPC i.e. demand of dowry and torture soon before death, is missing in this case. Even if the deceased died an unnatural death, within

seven years, this Court cannot conclude that the death was dowry death, which will fall under Section 304-B of IPC, in absence of demand of dowry and torture soon before death.

Be it noted that there is no alternative charge under Section 302 of IPC. The Doctor also opined that death is suicidal in nature. Thus, in absence of demand of dowry, which is apparent from evidence itself, we are of the view that prosecution has failed to prove the case beyond all reasonable doubts.

20. Thus, the judgment of conviction dated 06.06.2023 and order of sentence dated 09.06.2023 passed by learned Additional Sessions Judge-II, Latehar in Sessions Trial No.09 of 2020 is hereby set aside.

21. Accordingly, the instant Criminal Appeal is allowed.

22. I.A. No.5720 of 2023 also stands disposed of.

23. This Court directs the above named appellant to be released forthwith from custody, if not required in any other case.

24. Let L.C.R. along with a copy of this judgment be sent to the concerned trial court forthwith.

(ANANDA SEN, J.)

(SUBHASH CHAND, J.)

R.S.