Crl.A. 91/2008 BEFORE THE HON’BLE MR. JUSTICE RANJAN GOGOI THE HON’BLE MR. JUSTICE B. P. KATAKEY JUDGMENT & ORDER Ranjan Gogoi, J. Unnatural Death Case No.15 of 2005 of Namrup Police Station was register ed in respect of the death of one Sahanara Begum, wife of Abdul Samad Laskar i.e . the accused/appellant which occurred on 18.12.2005. The post mortem which was done on 19.12.2005 indicated that death was due to asphyxia resulting from ante mortem hanging besides indicating several other injuries on the body of the dece ased. On receipt of the said post mortem report, PW 9, Sri Rajen Bora, who had i nvestigated the unnatural death case, lodged a F.I.R. dated 26.12.2005 before th e Officer-in-charge of the Namrup Police Station. On the basis of the aforesaid F.I.R. Namrup P.S. Case No.107/2005 was registered, inter alia, under Section 30 4-B of the Indian Penal Code. In the course of the investigation of the case the statements of persons acquainted with the offence were recorded. Thereafter cha rge-sheet against the accused/ appellant and one Jalal Uddin Talukdar under Sect ion 304-B, I.P.C. was submitted. The offence alleged being exclusively triable b y the Court of Sessions the learned Chief Judicial Magistrate, Dibrugarh committ ed the case for trial to the Court of Sessions at Dibrugarh. The trial of the ca se was entrusted to the Additional Sessions Judge, (F.T.C.), Dibrugarh who on 17 .11.2006 framed charge against the accused-appellant and Jalal Uddin Talukdar un der Section 304-B, IPC. The said charge having been read over to the accused pe rsons they claimed to be not guilty and wanted to be tried. In the course of tri al the prosecution examined 9 witnesses in support of its case. No defence evide nce was led. However, the statements of both the accused persons were recorded u nder Section 313, Cr.P.C. Thereafter, by judgment and order dated 13.5.2008 the learned trial Court while acquitting the accused Jalal Uddin Talukdar convicted the accused-appellant under Section 304-B, IPC and sentenced him to undergo rig orous imprisonment for life. Aggrieved, this appeal has been filed. 2. It will be necessary, at this stage, to briefly note the core of the evi dence adduced by the prosecution witnesses examined in the case. PW 1, Abdul Noor Mazumdar, is the father of the deceased who had stated that after marriage on various occasions the deceased was brought by the accused to her parental home and was made to stay there. PW 1 had specifically stated t hat the accused/appellant had demanded money from him on different occasions and that a sum of Rs.3 ‰ lacs had already been given to the accused/appellant and h is family members. In his deposition PW 1 had narrated that on 28.11.2005 the de ceased was brought by the accused to a house of a relative and she was assaulted there. According to PW 1, on 18.12.2005 when he returned home at about 4 P.M. h e found the deceased hanging with a sari in her neck in the corridoor of the hou se. On seeing the deceased in such a state PW 1 raised a hue and cry when the ne ighbours came. Thereafter police and the Magistrate had come on the next day. In cross-examination PW 1 had stated that his daughter i.e. the deceased had been staying in the house for about 3 days prior to the incident and during that time the accused was working in Arunachal Pradesh. 3. PW 2, Musstt Afia Begum, is the mother of the deceased. In her depositio n she had stated that on 15.12.2005 the deceased was brought to their house by h er mother-in-law. According to PW 2, on the day of the incident she was informed of the incident by her husband and she had arrived after the post mortem examin ation was conducted. In cross-examination this witness i.e. PW 2 had also stated that during the time of the occurrence the accused was at Khonsa in Arunachal Pradesh. 4. The evidence of PWs 3, 5 and 6 not being specifically connected with the incident it will not be necessary to narrate the evidence tendered by the said witnesses. 5. PW 4, Sri Lila Konwar, in his deposition, had stated that on the date of occurrence at about 12.30 in the noon he noticed a crowd in the house of the fa ther of the deceased (PW 1) and therefore he went there and saw the deceased lyi ng near a bath room with a saree wrapped on her neck. This witness had also depo sed that when he entered the room where the deceased was staying he noticed bloo dstains on the pillow. 6. PW 7, Smt. Gunada Pathak, in her deposition had stated that on 15.12.200 5 the deceased was brought by her mother-in-law to the house of her parents. Thi s witness is a neighbour. She had further deposed that on 18.12.2005 (Sunday) in the morning she had found the deceased in the courtyard drying the washed cloth es. At about 4 p.m. on hearing hulla from the house where the deceased was stayi ng the witness went there and found the deceased in a hanging position with her knees touching the ground. PW 7 had further deposed that she found injuries on t he forehead of the deceased. It is the categorical statement of PW 7 that the mo ther of the deceased (PW 2) had informed her before the incident that the husban d and the father-in-law of the victim had been demanding motorcycle and other it ems and that the victim had stated to her mother that she had been tortured by h er husband on account of dowry. 7. PW 8, Dr. H. K. Mahanta, had performed the autopsy on the dead body of t he deceased on 19.12.2005 in the Assam Medical College Hospital at Dibrugarh. Th e findings of PW 8 with regard to injuries on the body of the deceased and his o pinion as regards the cause of the death being relevant are extracted below :- Injuries : 1. Abrasion 4 x 0.5 cm left upper eye lid. 2. Bruise 3cm x 1cm on right cheek below the outer angle of right eye. 3. Bruise on chin 3 x 1cm on middle part horizontal. 4. Abrasion 1 x 1cm, 1x 1cm left cheek below the outer angle of left eye an d 2 x 0.5cm on left lower eyelid. 5. Abrasion 2 x 0.5cm on outer part of right knee. 6. Abrasion 1 x 0.5cm outer part of left knee. All the injuries mentioned were fresh and 0 to 6 hours old. 7. Abrasion 1.5 x 1cm back of the abdomen left side 6cm left on 3rd lumber spine. 8. Small bruises 3 x 1cm, 1.5 x 1cm & 1.5 cm on inner side of the right thi gh in the middle part all inner oblique line. 9. Bruises 7 x 1.5cm, 4 x 2cm on upper part of left thigh inner part both a re placed obliquely & parallel with small abrasions. 10. Bruise 4 x 1cm back of the left wrist. 11. Bruise 1.5cm x 1cm on the dorsum of right hand middle part. 12. Bruise 2 x 1cm on dorsum of lefttest middle part. The bruises are greenish coloured. The abrasions are partially healed and cover ed by black hard scab. Injury Nos.6 to 11 are 4 to 7 days old. Two broad ligature marks high up in the neck over and above the larynx. One measures 31cm x 2cm continuous around the neck, the other 27 cm length x 2cm breadth oblique and non-continuous which overlaps the previous one on upper par t and both are continuous on the front and right side of the neck. The non-conti nuous present on left side of the neck in front left eye. The ligature marks wer e dark brown coloured, dry and parelmentised. The sub-urtansous tissues undernea th the ligature marks are found dry, glistening & parchmentised. The neck tissue s adjacent to the ligature marks were congested and contused. No other injury de tected in the underlying neck tissues. No fracture detected in larynx and hyoid bone. Anus :- An us was lex & patulous. Anal opening is relaxed and wide open on abduction of the thighs exposing the anal canal. The anal opening diameter wa s 3cm. Third scars running from anal margin laterally at 3, 6 & 9 O’clock positi ons present. The anal canal was wide and capacious. The anus was situated anteri or close to the vaginal opening only 1.8cm behind the vaginal orifice. Uterus em pty. Vagina admits two fingers. Vaginal cavity is wide and capacious. Vaginal sw ab smears taken from posterior vaginal fornix and anal swab smears taken from an al canal did not show spermatozoa, gonococci or smegma. The vaginal organs were congested. Stomach was congested contained about 450 ml semi-digested meal. O P I N I O N In my opinion, death was due to asphyxia resulting from ante mortem hang ing. Injuries described were ante mortem and caused by blunt impacts. Injury No s. 1 to 5 were 0 to 2 hours old (shortly before death); injury Nos.6 to 11 were 4 to 7 days old and were suggestive of physical torture. Evidence of recent sexu al and intercourse not seen. The anal findings are suggestive of repeated anal i ntercourse since long period. Approximate time since death 24-30 hours. Ext.5 is P.M. report & Ext.5(1) is my signature. 8. PW 9, Sri Rajen Bora, S.I. of police, had investigated the Unnatural Dea th Case No.15/2005 which was initially registered in respect of the incident. Th is witness had deposed that he had filed the F.I.R. in the police station and, b eing entrusted, he took up the investigation of the case in the course of which he recorded the statements of the witnesses. Thereafter, as the inquest and post mortem had already been held he had submitted the charge sheet. 9. Assailing the conviction of the accused/appellant under Section 304B of the Indian Penal Code Sri T. J. Mahanta, learned counsel for the accused/appella nt, has submitted that there is no material on record which could reasonably sus tain the conclusion recorded by the learned trial Court. It is submitted that in the present case no presumption under Section 304-B of the Indian Penal Code an d Section 113-B of the Evidence Act that the accused/appellant was responsible f or the death of the deceased could be raised. Sri Mahanta has argued that the ev idence of the witness with regard to bloodstains on the pillow would indicate th at the deceased was murdered. In this regard learned counsel has pointed out tha t the prosecution has failed to establish the involvement of the accused-appella nt in any such crime. Rather, it is the argument of the learned counsel for the appellant that the evidence of PWs 1 and 2 clearly discloses that the accused-ap pellant, during the relevant time, was away in Arunachal Pradesh in connection w ith his work. Therefore, it is argued that no culpability can be attributed to t he accused/appellant. 10. Opposing the contentions advanced on behalf of the accused/appellant Sri Z. Kamar, learned Public Prosecutor, has submitted that the materials on record have proved that the deceased had died within seven years of her marriage and t hat such death had occurred in circumstances other than normal. Pointing out the provisions of Section 304-B IPC and Section 113-B of the Evidence Act the learn ed Public Prosecutor has submitted that a presumption arises in law that the acc used/appellant is responsible for the death of the deceased. No material has bee n laid on behalf of the accused/appellant to rebut the said presumption. Therefo re, according to the learned Public Prosecutor, whether the death in question wa s homicidal or suicidal would not be relevant and by virtue of the provisions of Section 113-B of the Evidence Act it is the accused who must be held liable for the offence under Section 304-B, IPC. In this regard, the learned Public Prosec utor has relied on a judgment of this Court in Alamgirsani vs. State of Assam, r eported in 2001(2) GLT 343. Learned Public Prosecutor has also placed before th e Court a judgment of the Apex Court in Alamgir Sani vs. State of Assam, reporte d in 2003 CRI. L.J. 4917, by which the decision of this Court in Alamgirsani(sup ra) has been affirmed. 11. In the light of the submissions advanced by the learned counsels for the parties it will be necessary for the Court to examine the provisions contained in Section 304-B of the Indian Penal Code and Section 113-B of the Indian Eviden ce Act. The provisions, therefore, are extracted below : 304-B.Dowry death.-(1) Where the death of a woman is caused by any burns or b odily injury or occurs otherwise than under normal circumstances within seven ye ars 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 deat h , 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 me aning 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 te rm which shall not be less than seven years but which may extend to imprisonment for life. 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 i n connection with, any demand for dowry, the Court shall presume that such perso n had caused the dowry death. 12. In Alamgirsani (supra) this Court has already held that Section 304-B of the Indian Penal Code itself permits a presumption of dowry death to be raised against the husband or any relative of the husband upon existence of the pre-con ditions necessary to bring the Section into play. It has been further held that raising of such a presumption is also contemplated by Section 113-B of the Evide nce Act which has been introduced by the Dowry Prohibition (Amendment) Act, 1986 . In the aforesaid case this Court has held that on a conjoint reading of the pr ovisions of Section 304-B of the Indian Penal Code and Section 113-B of the Evid ence Act it would be clear that whenever there is an unnatural death of a woman within seven years of her marriage and there is evidence to show cruelty or hara ssment of the woman by her husband or any other relative for or in connection wi th any demand for dowry a presumption regarding culpability of the husband or su ch other relative arises by operation of the law. In the said decision it has be en further held that to attract Section 304-B of the Indian Penal Code it is not necessary for the prosecution to prove and establish any particular act or role of the accused apart from commission of cruelty in connection with demand for d owry. In this regard in Alamgirsani (supra) it has already been held that the qu estion whether the death is homicidal or suicidal is also not a relevant questio n for determination of liability of the accused under Section 304-B, IPC. 13. The provisions of Section 304-B of the Indian Penal Code and Section 113 -B of the Indian Evidence Act permits the raising of a presumption that it is th e accused who is responsible for the death once the necessary pre-conditions men tioned in Section 304-B I.P.C. are proved and established by the prosecution. Ho wever it will be necessary to emphasize that the presumption that arises by virt ue of the aforesaid provisions of law can always be rebutted by the accused by l eading contrary evidence. Once the accused succeeds in rebutting the presumption by showing that there was no cruelty in connection with any demand for dowry th e burden will shift back to the prosecution to establish the specific acts showi ng the involvement of the accused with the commission of the crime and it is at that stage that the issue whether the death is homicidal or suicidal would be re levant. 14. Having noticed and understood the principles governing the application o f Section 304-B, I.P.C. we may now proceed to analyse the evidence on record. In the F.I.R. filed it is stated that the marriage between the accused and the dec eased took place in November, 2004. The aforesaid fact is not disputed by the ac cused. The evidence of PW 1, the father of the deceased, with regard to demand f or dowry made by the accused/appellant and his family members stand unrebutted i n the cross-examination of the witness. The said evidence is further fortified b y the evidence of PW 7. The evidence of PWs 1 and 7, therefore, would go to show that there was a demand for dowry in the present case on the family of the dece ased and further that the deceased was brought to her parental home on several o ccasions by the accused. PW 7 has also deposed with regard to commission of crue lty by the accused on the deceased. The evidence of PW 8, Dr. H. K. Mahanta, who had performed the post mortem, indicates in details the extent of cruelty which were inflicted on the deceased. The parts of the body on which such acts of cru elty had been committed as found in post mortem, can, in normal state of things, be attributed only to the accused and nobody else. The opinion of PW 8 with reg ard to the cause of death is that the same was on account of asphyxia resulting from ante mortem hanging. The death of the deceased, therefore, undoubtedly, had occurred in circumstances other than normal. All the three ingredients contempl ated by Section 304-B, IPC, in our considered view, therefore, exist in the pres ent case. If that be so, the presumption permitted to be drawn by that Section r ead with Section 113-B of the Evidence Act would come into play. It is the accus ed who is presumed by law to be responsible for the death of the deceased. The a ccused/appellant had led no evidence whatsoever to rebut the said presumption. T he argument raised on his behalf by Sri Mahanta, learned counsel, that the blood stains on the pillow indicate death to be as a result of an act of murder and th at the accused was away in Arunachal Pradesh, as testified by PWs 1 and 2, in ou r considered view, would not at all be relevant. If the accused had led the evid ence to rebut the presumption that had arisen by operation of law and on conside ration of such evidence if the said presumption could be understood to be rebutt ed, only then the argument advanced by Sri Mahanta would have merited considerat ion by the Court. The presence of the accused at the place of occurrence or his absence therefrom in a case under Section 304-B, IPC is not a relevant factor. 15. The above discussions, therefore, clearly establishes that the necessary ingredients to attract Section 304-B, IPC to the present case have been proved and established by the prosecution beyond all reasonable doubt. The accused/ app ellant having failed to discharge the legal presumption it has to be held that h is culpability for the offence under Section 304-B stands fully established. We will, therefore, have no occasion to interfere with the conviction of the accuse d/appellant recorded by the learned trial Court. 16. Coming to the sentence awarded by the learned trial Court we have notice d that under Section 304-B, I.P.C. a minimum punishment of seven years R.I. whic h could extend to life imprisonment has been prescribed. In the present case th e accused/appellant has been sentenced to undergo rigorous imprisonment for life . Sri Mahanta, learned counsel for the appellant, has submitted that there are n o special reasons for the learned trial Court to have awarded the maximum senten ce under the law. We do not agree with Sri Mahanta. Award of any particular sent ence under Section 304-B, IPC must be guided by the extent of cruelty suffered b y the deceased; the period of time during which such acts of cruelty had persist ed and such other relevant facts and circumstances. In the present case the evid ence of PW 8 and the post mortem report vividly describes the extent of cruelty that the deceased had to undergo over a reasonably long period of time at the ha nds of the accused/appellant before she died. Considering the said evidence and the extent of injuries and cruelty inflicted on the deceased we are of the view that the accused-appellant is a highly depraved person, who, by his acts and dee ds has forfeited all rights to return the mainstream of social life. We, therefo re, hold that the present is not a fit case for inference with the punishment aw arded by the learned trial Court. The sentence of life imprisonment, therefore, is maintained. 17. In the result, the appeal is dismissed. The judgment and order dated 13. 5.2008 passed by the learned Addl. Sessions Judge (FTC), Dibrugarh in Sessions C ase No.217 of 2006 is affirmed.