Sani Vs. State of Assam  Insc 577 (20 December 2002)
N. Variava & B. N. Agrawal. S. N. Variava, J.
Appeal is against a Judgment dated 25th April, 2001 by which the High Court has
confirmed the conviction, by the learned Sessions Judge, under Section 304-B of
the Indian Penal Code.
stated the facts are as follows:
Appellant got married to Dr. Anjum Ara on 31st May, 1994.
On 14th February, 1995, the Dispur Police Station received
a telephonic message from one Dr. Kalpana Sharma (P.W. 1) that a woman had died
under suspicious circumstances. On the basis of this information a diary entry
was made. The police then went to the place of occurrence. There they found Dr.
Anjum Ara lying dead on the bed.
father of the deceased, who is the Sub Divisional Officer, was informed
telephonically about the death.
police initially arrested the Appellant (who is the husband of the deceased) as
well as one Bhaskar Ali (P.W. 3), who was a servant in the house. The father of
the deceased gave information, which is treated as FIR, that his daughter had
reportedly committed suicide "by hanging inside the bathroom". The
diary entry dated 15th February, 1995 records that the father of the deceased
had informed in writing that he does not have any suspicion and that it was
purely a case of suicide. The diary entry records that after post-mortem, the
body would be taken to their home town Gopalgunj and that he (i.e. the
father-in-law) would take his son-in-law also with them.
post-mortem examination. the Doctor (P.W. 8) found the following injuries:
Abrasion '5cm x '3cm size present at 2 cm above the tip of nose and '5 cm left
Abrasion '7 cm x '3 cm size on front of lower end of left ear 1 cm below the tragus
(projecting part of ear).
Contusion '7 cm x '5 cm size present just below the lower jaw 4 cm right to
Contusion 1 cm x 1 cm size present at 1.5 cm below the mid point of chin.
Abrasion 1 cm x '5 cm in size present at 1 cm below the lower jaw at 1.5 cm
right to midline.
Contusion 2 cm x 1.5 cm in size present on lower border of lower jaw 4 cm left
Bite mark oval in shape 3.5 cm x 2 cm size on back of left forearm 2 cm above
wrist joint at middle.
Bite mark oval in shape 4 cm x 3 cm in size on back of right forearm 1.5 cm
above the wrist joint at middle.
Abrasion 1.5 cm x .5 cm in size on the back of right elbow joint on ulnar side.
Contusion 2.5 cm x 1.5 cm size on outer aspect of right arm 8 cm above lateral epicundile
Contusion 2.5 cm x 1.5 cm size on front of left leg just above the patella at
Contusion 4 cm x 1.5 cm size on inner side of right knee joint 1 cm below the
Scratch abrasion 3 cm x 2 cm size on the outer aspect of left wrist joint 1 cm
above the styloid process of left radius.
Bite marks oval in shape 2 cm x 3 cm in size on outer aspect of right forearm 2
cm above the styloid process of radius of right hand.
the contusions were read in colour.
One oblique and non continuous ligature mark measuring 25 cm in length and 1.5
cm in breadth present high up on the neck. In front the ligature mark touches
just above the thyroid preminance at midline and on left side ligature mark,
extends upto a point 1 cm below the lower end of left ear lebula and on the
right side the upper end of ligature mark extends upto the midline 4 cm below
upper border of ligature mark on right side shows grazed abrasions .5 to 1 cm
wide directing upwards and backwards." The Doctor opined that the injuries
were ante-mortem and homicidal in nature. The Doctor opined that the injuries
were not self inflicted or accidental.
receipt of the post-mortem report on 22nd February, 1995 the father of the deceased gave a
second report to the police. Now he alleged that his daughter had been murdered
by her husband. He alleged that she had been so murdered for non-fulfillment of
demand of dowry made by the Appellant. The Appellant was therefore charged
under Sections 302 and 304-B of the Indian Penal Code. The Appellant pleaded
not guilty and claimed to be tried.
prosecution led the evidence of 12 witnesses. P.W. 5, one Jahida Khatun, is a
relation of the deceased, P.W. 6 one Mohd. Kasim, was a friend of the family of
the deceased as well as of the family of the Appellant, P.W. 7 is the father of
the deceased, P.W.9 is the mother of the deceased. P.Ws. 10 and 11 are the
brothers of the deceased. These witnesses gave evidence of the demand for dowry
made by the Appellant and his brothers after the marriage was solemnised.
2, one Kamla Devi also gave evidence to the effect that one day prior to the
date of death she had seen the deceased crying. P.W.3, who was the servant,
gave evidence to the effect that on the date of the occurrence all the other
persons/family members had gone out of house; that the deceased and the
Appellant were alone in the room till about 12.00 in the afternoon; that round
about 12.00 the deceased came out of the room and then went back into her room.
He further gave evidence that after some time he went into the room, saw the
deceased was sleeping and the Appellant was sitting on the bed reading a
magazine. He gave evidence to the effect that he gave some snacks to the
Appellant in the room. He gave evidence that at 2.20 p.m. he saw the Appellant
sitting in the drawing room reading a newspaper and on being asked he told that
the deceased was in the bathroom. When the younger brother of the deceased Sakil
(P.W.4) came back from the school P.W.3 told P.W.4 that the deceased was in the
bathroom for a long time. Therefore P.W.4 knocked the door of the bathroom
which seemed to be locked and called the deceased by name but did not get any
response. On this they got suspicious and P.W. 4 asked the servant to climb a
pipe and see what had happened.
servant therefore climbed a pipe and peeped into the bathroom through a gap in
the wall. He found the deceased in a sitting position with head stooping down.
The deceased appeared to be dead. The servant informed P.W. 4 about it.
Immediately the Appellant want to the bathroom and brought the body of the
deceased out and put it on to the bed. Thereafter the neighbour, a doctor, was
called in, who declared the deceased to be dead and who then informed the
above evidence shows that the deceased was last seen alive with the Appellant
in the bedroom occupied by them. The bathroom in which the deceased was found
was attached to the bedroom. Even though the deceased was in the bathroom for
an indefinitely long time the Appellant showed no concern or anxiety. The
brother (P.W.4) and the servant (P.W. 3) get concerned and discover that she
appears to be dead. On such discovery the Appellant immediately brings out the
body and lays it down on the bed. The trial Court still thought it fit to
acquit the Appellant of the charge under Section 302 I.P.C. As no Appeal was
filed by the State we make no comment about this acquittal. The trial Court
however convicted the Appellant of the charge under Section 304-B I.P.C. The
trial Court sentenced the Appellant to life imprisonment. The High Court
considered the entire evidence in detail and confirmed the conviction of the
Appellant by the trial Court.
Singh submitted that the evidence of demand for dowry could not be believed at
all. He submitted that if there had been a demand for dowry the father of the
deceased would never have given a report that he did not suspect any foul play.
Mr. Jaspal Singh relied upon the case of Ravindra Pyarelal Bidlan and Ors. v.
State of Maharashtra reported in (1993) Crl.L.J. 3019.
In this case the Bombay High Court refused to believe evidence of ill
treatment, beating and demand of various articles because the father of the
deceased did not make any statement to that effect for three full days.
Judgment is based on facts of that case. If the authority were laying down that
in all cases where immediately a statement about ill- treatment or beating or
demand for various articles is not made, then such evidence cannot be accepted
then it would have to be held that it is laying down bad law. Human nature is
very complex. Different persons react differently under pressure or in times of
sudden bereavement or grief. The shock suffered by a parent having seen his
daughter dead in an unnatural manner can in some cases prevent immediate
outpouring of reasons. Each case would have to be tested on its own facts and
no hard and fast rule can be laid down in this behalf.
Singh submitted that there were contradictions in the versions given by the
father and the two brothers of the deceased regarding the demand for dowry made
after marriage. However we find that the contradictions sought to be relied
upon are not material.
Singh next submitted that the father of the deceased lodged the second report
after a lot of delay. He submitted that the statements of P.Ws. 5, 6 and 7 were
recorded after a lot of delay. He submitted that as a result of the delay there
was strong possibility of embellishment as a result of after thought. He
submitted that the possibility of embellishment is very high in this case as
the initial reaction of the father, as evidenced by the FIR and the station
diary, show that there was no suspicion.
support of his submissions, Mr. Jaspal Singh relied upon the cases reported in Thulia
Kali v. State of Tamil Nadu reported in AIR 1973 SC 501, Ram Kumar v. State of
M. P. reported in AIR 1975 SC 1026 and Balaka Singh v. State of Punjab reported
in AIR 1975 SC 1962. There can be no dispute with the legal proposition laid
down therein. The main question in all such cases is whether the testimony of
witnesses can be believed or not. Ultimately all these principles deal with
methods of testing veracity of witnesses. The trial Court which had the benefit
of watching the demeanor of the witnesses is the best judge in this behalf.
More importantly the above principles may cast a doubt on the veracity of the
testimony of the father (P.W.7). But the testimony of the father is
corroborated by testimony of P.Ws. 5, 6, 10 and 11. Both the trial Court and
the High Court have believed the evidence of these witnesses.
Singh further submitted that, in any event, the Appellant has been acquitted
under Section 302 I.P.C. He submitted that this shows that there was no
intention or knowledge to cause death. He submitted that such an acquittal
necessarily means that the Appellant is held not responsible for the death of
the deceased. He submitted that once the Appellant has been acquitted under
Section 302 I.P.C., the presumption under Section 113-B of the Evidence Act
unable to accept the submissions of Mr. Jaspal Singh. In an Appeal under
Article 136 of the Constitution this Court will not re- appreciate and/or
re-appraise the evidence to arrive at a different conclusion, unless it is
shown that the Courts below have not taken into consideration some relevant
facts or have not appreciated the evidence in a correct perspective or this
Court finds serious infirmities in the findings of the Courts below. In our
view, both the Courts below have correctly relied upon the evidence of P.Ws. 5,
6, 7, 10 and 11 to come to the conclusion that there had been demands for
5 and 6 are independent witnesses. P.W. 6 is a friend of the family of the
Appellant also. Therefore, there is no reason why he would give false evidence.
We therefore find no flaw or fallacy in the reasoning adopted by the Courts
also see no substance in the submission that merely because the Appellant had
been acquitted under Section 302 I.P.C the presumption under Section 113-B of
the Evidence Act stands automatically rebutted. The death having taken place
within seven years of the marriage and there being sufficient evidence of
demand of dowry, the presumption under Section 113B of the Evidence Act gets
invoked. There is no evidence in rebuttal.
therefore see no reason to interfere. The Appeal stands dismissed.