Jamil Ansari vs State Of Jharkhand
2024 Latest Caselaw 9860 Jhar

Jharkhand High Court

Jamil Ansari vs State Of Jharkhand on 4 October, 2024

Author: Rongon Mukhopadhyay

Bench: Rongon Mukhopadhyay

                   Criminal Appeal (DB) No. 654 of 2017
    Against the judgment and order of conviction and sentence
    dated 02.03.2017 (sentence passed on 10.03.2017) passed by
    Shri M.C. Verma, learned A.J.C.-I-cum Spl. Judge, Ranchi.

    Jamil Ansari, S/o Israil Ansari, R/o Vill- Loyo, P.S.- Mander, P.O.-
    Sakra, District- Ranchi, Jharkhand.                   ...   Appellant
                                Versus
    State of Jharkhand                                   ...    Respondent
                                  ----

PRESENT HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA

----

           For the Appellant      : Mr. A.K. Kashyap, Sr. Advocate
           For the Respondent     : Mr. Sardhu Mahto, A.P.P.
                                         ----
                             Dated 04 October, 2024
                                        th

Rongon Mukhopadhyay, J. : 1. Heard Mr. A.K. Kashyap, learned senior counsel for the appellants and Mr. Sardhu Mahto, learned A.P.P.

2. This appeal is directed against the judgment and order of conviction and sentence dated 02-03-2017 (sentence passed on 10- 03-2017) passed by Shri M.C. Verma, learned Additional Judicial Commissioner-I-cum Special Judge, Ranchi in connection with S.T. No.56 of 2015 by S.T. No. 57 of 2015, whereby and whereunder the appellant has been convicted for the offence under section 302 and 304B I.P.C. and has been sentenced to undergo rigorous imprisonment for life along with a fine of Rs. 5000/- for the offence under Section 302 IPC, and in case of non-payment of fine, to undergo simple imprisonment for 6 months, and rigorous imprisonment for 10 years for the offence under section 304B I.P.C. Both the sentences are to run concurrently.

3. The prosecution case arises out of the fardbayan of Afzal Ansari in which it had been stated that in the year 2010, he had performed the marriage of his daughter as per Muslim rites and customs with Jamil Ansari(appellant). After marriage, for about a year, his daughter was kept properly by her husband. However, after one year, the parents of Jamil Ansari, his brother and uncle for some reason or the other used to mentally and physically commit torture. It has been alleged that Jamil Ansari was pressurizing the daughter of the informant to bring Rs.1 lakh in cash and a Pulsar motorcycle instead of the CD-Dawn motorcycle given to him as dowry. The daughter of the informant was under mental tension due to the demand and torture, as stated by her, when she came to her parental house. About 2-3 days back, the daughter of the informant was sent back to her matrimonial house along with her brother. It has been alleged that, last night, the informant had come to know that the husband and in- laws of the daughter of the informant have strangulated her to death.

Based on the aforesaid allegations, Mander P.S. Case No. 77/2014 was instituted against Jamil Ansari, Israil Ansari, Ayesha Khatoon, and Ismail Ansari under Sections 302/304B/498A/34 I.P.C. On completion of investigation, separate charge sheets were submitted against Jamil Ansari, Israil Ansari and Ayesha Khatoon leading to separate cognizance orders and separate commitments to the Court of Sessions where they were numbered as S.T. No. 56 of 2015 and S.T. No. 57 of 2015. Vide order dated 30.06.2015, both the session trials were amalgamated. Charge was framed against the accused for the offence under Section 302/304B/34 IPC which were read over and explained to the accused in Hindi to which they pleaded not guilty and claimed to be tried.

4. The prosecution has examined as many as 10 witnesses in support of its case:

P.W.1 Tanish Akhtar is the uncle of the deceased Nasima Khatoon, who has stated that her marriage was solemnized with Jamil Ansari in the year 2010. She was kept well for one year but thereafter there was a demand of Rs. 1 lakh and a Pulsar motorcycle in place of CD-Dawn. An attempt was made at a compromise and a Panchayat was also held and the deceased was sent back to her matrimonial house. However, the in-laws of Nasima started quarrelling and persisted with their demand of Rs. 1 lakh and a motorcycle. About a week prior to the incident, Nasima had come back to her matrimonial house from her parental house. It was a Sunday when Nasima had returned back to her matrimonial house and on the next day he

2|Page received an information that Nasima Khatoon has suffered injuries on account of a fan falling on her. At this information he, the parents and brother of Nasima went to her matrimonial house where they saw Nasima Khatoon lying dead and though there were no signs of injury on her body, but in the neck there were signs of five fingers which led to a conclusion that she was strangulated. The Police was informed, who came and prepared an inquest report of the deceased Nasima Khatoon in which he had signed as a witness. He has proved his signature on the inquest report which has been marked as Exhibit-1.

In cross-examination, he has deposed that from 2011 to 2014, no complaint was made anywhere regarding the demand of dowry. When they had reached the matrimonial house of Nasima as well as when the Police came, Jamil Ansari was present in the house.

P.W.2 Hasan Ansari has stated that Nasima used to stay at her matrimonial house at Loyo. At about 4:00AM, he had heard some commotion from the matrimonial house of Nasima Khatoon, at which, he went to the said place where he saw Nasima lying dead. Several villagers had already assembled by then at the said place. When he had asked Jamil Ansari as to how the incident had taken place, he had admitted that he had throttled his wife to death.

In cross-examination, he has deposed that his house is adjacent to the house of Jamil Ansari. He had heard from Jamil about the demand of dowry made by him. When Jamil had disclosed that he had strangulated his wife to death, Hakim was also present. When he had gone to the house of Jamil, there were no members of his family present except Jamil. The parents and relatives of the deceased Nasima had already reached by then.

P.W.3 Mohammad Khalid has stated that he does not know as to how Nasima Khatoon had died, but he had heard that Jamil Ansari had strangulated her to death.

P.W.4 Aslam Ansari has stated that the marriage of his sister Nasima Khatoon was solemnized in the year 2010 with Jamil Ansari and, after a few days of marriage, his sister was tortured by her husband and in-laws due to non-fulfillment of the demand of Rs 1

3|Page lakh and a Pulsar motorcycle. About a week prior to the incident, Nasima Khatoon had come to her parental house and had disclosed about the demand made by her husband and in-laws. She was somehow convinced to return back to her matrimonial house and after a day of her returning back to her matrimonial house, she was strangulated to death by her husband and in-laws. When on information they had gone to the matrimonial house of his sister, they found her dead with a number of injuries on her throat.

In cross-examination, he has deposed that no case was filed with respect to the demand of a motorcycle and Rs 1 lakh cash. A Panchayati was held in the village, though he was not present in the Panchayat. No document was also prepared in the Panchayat. When he had reached the matrimonial house of his sister, on hearing the news of her death, the accused Jamil, his parents and brother were present in the house.

P.W.5 Miyan Jaan Ansari has stated that Nasima was his niece whose marriage was solemnized with Jamil Ansari in the year 2010. She was kept well for 1-1.5 years by Jamil Ansari and thereafter, she was subjected to torture and a demand of a Pulsar motorcycle and Rs 1 lakh in cash was made by Jamil Ansari and the in-laws of Nasima Khatoon. In the meantime, Nasima Khatoon came to her parents' place and disclosed about the pressure created upon her to fulfill the demand. She was somehow convinced and sent to her matrimonial house. About three days prior to the incident, she had once again come to her parents house and after convincing her, she was sent back to her matrimonial house and his nephew had accompanied her.

When she was being sent back, she was crying and expressing her apprehension that she will be done to death. He has stated that on the third day of her going back, she was strangulated to death. He has proved his signature in the fardbayan which has been marked as Exhibit-2. He had gone to the matrimonial house of Nasima Khatoon on hearing about the incident and he had found the sign of five fingers on her throat. He has identified his signature in the inquest report which has been marked as Exhibit-1/A.

4|Page In cross-examination, he has deposed that the deceased did not used to frequent his house after her marriage. Before her death, no dowry related case was instituted. A complaint was made to Loyo Panchayat, but he does not have any proof about the same. He had gone to the matrimonial house of the deceased 4-5 times prior to her death. The Police had come to the place of occurrence at 6:00AM. The husband of the deceased had confessed that he had strangulated his wife to death. He has deposed that Nasima Khatoon was assaulted in his presence but he had not disclosed this fact to the Police.

P.W.6 Haquim Ansari did not support the case of the prosecution and was declared hostile by the prosecution.

P.W.7 Afzal Ansari is the informant and father of the deceased Nasima Khatoon, who has stated that the marriage of his daughter was solemnized as per Muslim rites and customs in the year 2010 with Jamil Ansari. His daughter was kept well for a year and after that her husband and parents-in-law started demanding Rs. 1 lakh and a Pulsar motorcycle as a replacement to CD-Deluxe motorcycle which was given as dowry. They started quarrelling with his daughter and sent her to her parental house. He convinced his daughter and sent her back to her matrimonial house along with his son Mahboob. He has stated that his daughter was sent on Sunday and on Monday night his daughter was strangulated to death. His cousin brother had called him over phone and disclosed that Nasima Khatoon is in a serious condition and when they went, they found Nasima Khatoon dead.

In cross-examination, he has deposed that he could not fulfill the demand of Rs. 1 lakh and a Pulsar motorcycle. He has also deposed that the money was demanded by Jamil only. He had stated before the Police that Jamil had confessed before everyone that he had done to death Nasima Khatoon. Before the death of his daughter, he had not made any complaint regarding the demand of dowry and torture committed upon her.

P.W. 8 Mahboob Ansari is the brother of the deceased who has stated that after marriage his sister was kept well for a year and

5|Page thereafter, her in-laws started quarrelling with her regarding the demand of Rs. 1 lakh and a Pulsar motorcycle. Whenever he used to go to the house of Nasima, she used to say that she will be killed for not fulfilling the demand of dowry. Eight days prior to her death, Nasima had come to her parents' house and after convincing her that it is not possible to meet the demand due to poor financial condition, she was sent back to her matrimonial house. He had taken her to her matrimonial house and had returned back on the same day. On the next day of his return, the younger brother of the accused Jamil Ansari, namely, Shaqil Ansari informed over phone that Nasima is seriously ill. When he went to the matrimonial house of Nasima, he found her dead with marks of fingers on her throat. On being asked, all the three accused persons confessed of committing the murder of Nasima.

In cross-examination, he has deposed that no complaint was made to the Police prior to the death of Nasima. It is incorrect to say that the accused persons did not confess about the murder committed by them.

P.W.9 Dr. Jyoti Asha Champi was posted as a Medical Officer in the Department of FMT, RIMS, Ranchi and on 24-06-2014, she had conducted autopsy on the dead body of Nasima Khatoon and had found the following:

a. On physical examination the age of the deceased was found to be 25 years. She was of average built, rigor mortise was present in all over the forelimbs, abdomen was distended, face was congested, nails were cyanosed and bleeding from both nostrils were there.

b. Four antemortem linear abrasions of nail marks of different size varying from 1cm x ¼ cm over left fronto lateral side of neck. In addition to the said four abrasions, there were also two linear abrasions on right side of front of neck and size of these two abrasions was ½ cm to 1 cm. c. On internal examination, soft tissue of both sides of fronto lateral neck were contused. There was also a

6|Page defused contusion over left side of scalp as well over left temporal muscles. Lungs were congested. Brain and brain material was congested. Liver, kidney and spleen were also congested. Uterus was found gravid having a dead fetus of 29 cm of length and of approximate age of six months.

The cause of death was opined to be on account of asphyxia as a result of throttling. The head injury was caused by hard and blunt substance. He has proved the post-mortem report which has been marked as Exhibit-9.

In cross-examination, she has deposed that there was no finger marks over the neck of the deceased.

P.W.10 Narendra Kumar Sinha was posted as an Officer-in- Charge Mander P.S. and on 24-06-2014, he had received a telephonic information that a woman has been strangulated to death in village Loyo. He reached village Loyo along with the Police force and in the house of Jamil Ansari, he found the dead body of a woman lying on a cot with marks of injury on her throat. The fardbayan of the father of the deceased was recorded which has been proved and marked as Exhibit-10/A. He had recorded the statement of the witnesses and had also arrested the accused Jamil Ansari. A formal F.I.R. was instituted which has been proved and marked as Exhibit- P.W.10/D. In course of investigation,he had obtained the post-mortem report and on completion of investigation, had submitted charge sheet.

In cross-examination, he has deposed that the informant party had reached the place of occurrence prior to him. Save and except Jamil Ansari, nobody of his family were present in the house. He had inspected the place of occurrence, which is the house of Jamil Ansari in village Loyo. On the first day of his investigation he had recorded the statement of some independent witnesses.

5. The statement of the accused was recorded under Section 313 Cr.P.C. in which he has denied his involvement in the death of Nasima Khatoon.

6. The defence has examined one witness in support of its case:

D.W.1 Adish Ansari has stated that on 24-06-2014 his sister-

7|Page in law died and, on such information his parents had gone to village Loyo. The Police had already reached the place of occurrence and had arrested his brother.

In cross-examination, he has deposed that he does not know the cause of death of his sister-in-law.

7. It has been submitted by Mr. A.K. Kashyap, learned senior counsel for the appellant that the learned trial court has committed an error in convicting the appellant both under Section 302 I.P.C. and Section 304B I.P.C. It has been submitted that none of the ingredients necessary for such conviction are available with the prosecution. There are no eyewitnesses to the occurrence and only on the basis of circumstantial evidence, the appellant has been held guilty. Alternatively, it has been submitted that in the worst scenario, at best, a case under Section 304B I.P.C. is made out against the appellant and the learned trial court has committed an error by applying "presumption" both under Section 302 I.P.C. and Section 304B I.P.C.

8. Mr. Sardhu Mahato, learned APP has submitted that the death of Nasima Khatoon has been caused due to throttling at her matrimonial house and that there was a consistent demand of dowry and, therefore, conviction has rightly been done by the learned trial court both under Section 302 I.P.C. and Section 304B I.P.C.

9. We have heard the learned counsel for the respective sides and have also perused the trial court records.

10. The evidence of the prosecution consistently points to the fact that after one year of marriage the demand of dowry reared its head which continued till the deceased died on account of throttling. The demand was made of a Pulsar motorcycle as the appellant was not satisfied with the CD-Dawn motorcycle (though as per the informant P.W.7, it was a CD-Deluxe motorcycle) as well as a demand of Rs. 1 lakh in cash. Such repeated demands could not be fulfilled by the parents of the deceased Nasima Khatoon due to their poor financial condition. The deceased had also expressed an apprehension about she being done to death by her husband and in-laws for non- fulfillment of such demand. P.W.1, P.W.4, P.W.5, P.W.7 and P.W.8,

8|Page though are related to the deceased but that by itself would not make their evidence vulnerable as their evidence is consistent with respect to the demand of dowry and has not exaggerated their version. The ocular evidence has been supported by the medical evidence which has come to a conclusion that death occurred on account of throttling.

11. To bring home the charge under section 304B I.P.C., the following features need to be proved by the prosecution:

1. The death of a woman within 7 years of marriage.

2. The death was caused by burns, bodily injury or other than normal circumstances.

3. The woman was subjected to cruelty or harassment by her husband or a relation of her husband.

4. The cruelty or harassment was in connection with the demand of dowry.

5. The cruelty or harassment occurred soon before the woman's death.

12. The evidence of the prosecution witnesses indisputably point to the fact that all the ingredients, as noted above, have been fulfilled and therefore, it will be presumed that the appellant has committed the dowry death of his wife by invoking Section 113B Evidence Act.

13. The cause of death has been opined to be on account of asphyxia due to throttling. It appears that four antemortem linear abrasions of nail marks were found over left fronto lateral side of neck and two linear abrasions on right side of front of neck. In her cross- examination, P.W. 9 has stated that hyoid bone, larynx, trachea and windpipe etc. were found to be in a normal condition and no abnormality was detected in them. In throttling, apart from other features, there must be a fracture of the larynx, thyroid cartilage and hyoid bone as well as cricoid cartilage. None of such essential features were present when the autopsy was conducted. The sign of strangulation was also not present in the body of the deceased. The learned trial court, though has noted about the ambiguity in the evidence of P.W. 9, but has brushed aside the same and concluded that the death was due to throttling. This finding is erroneous in view

9|Page of the evidence of P.W. 9 and, therefore, it cannot be concluded with certainty that the death was due to throttling.

14. In the case of Jasvinder Saini v. State (Govt. of NCT of Delhi), reported in (2013) 7 SCC 256, it has been held as follows:

"15. It is common ground that a charge under Section 304-B IPC is not a substitute for a charge of murder punishable under Section 302. As in the case of murder in every case under Section 304-B also there is a death involved. The question whether it is murder punishable under Section 302 IPC or a dowry death punishable under Section 304-B IPC depends upon the fact situation and the evidence in the case. If there is evidence whether direct or circumstantial to prima facie support a charge under Section 302 IPC the trial court can and indeed ought to frame a charge of murder punishable under Section 302 IPC, which would then be the main charge and not an alternative charge as is erroneously assumed in some quarters. If the main charge of murder is not proved against the accused at the trial, the court can look into the evidence to determine whether the alternative charge of dowry death punishable under Section 304-B is established. The ingredients constituting the two offences are different, thereby demanding appreciation of evidence from the perspective relevant to such ingredients. The trial court in that view of the matter acted mechanically for it framed an additional charge under Section 302 IPC without adverting to the evidence adduced in the case and simply on the basis of the direction issued in Rajbir case [Rajbir v. State of Haryana, (2010) 15 SCC 116 : (2013) 2 SCC (Cri) 149 : AIR 2011 SC 568] . The High Court no doubt made a half-hearted attempt to justify the framing of the charge independent of the directions in Rajbir case [Rajbir v. State of Haryana, (2010) 15 SCC 116 : (2013) 2 SCC (Cri) 149 : AIR 2011 SC 568] , but it would have been more appropriate to remit the matter back to the trial court for fresh orders rather than lending support to it in the manner done by the High Court."

15. Though in the case under reference, the issue was of framing a charge under Section 302 I.P.C. in a case alleging dowry death as held in Rajbir v. State of Haryana reported in (2010) 15 SCC 116, but the same was dependent on the nature of evidence available as indicated in Jasvinder Saini v. State (supra).

16. The observation made in the afore quoted paragraph would apply to the present case also to ascertain as to whether an offence punishable under Section 302 I.P.C. is made out or not. As we have

10 | P a g e discussed above, the evidence of the witnesses overwhelmingly points to a dowry death committed by the appellant and the appellant cannot be held guilty for the offence punishable under Section 302 I.P.C. more so when the cause of death has not been conclusively proved by the prosecution.

17. We, therefore, on the basis of the discussions made by us, affirm the conviction and sentence passed by the learned trial court for the offence punishable under Section 304B I.P.C., while setting aside the conviction of the appellant for the offence punishable under Section 302 I.P.C.

18. This appeal is disposed of.

19. Pending I.A.s, if any, stands closed.

(RONGON MUKHOPADHYAY, J.)

(PRADEEP KUMAR SRIVASTAVA, J.)

Jharkhand High Court, Ranchi Dated the 4th Day of October, 2024 Preet/N.A.F.R.

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