Research › Search › Judgment

Patna High Court · body

2000 DIGILAW 670 (PAT)

Taffazzul Khan v. State Of Bihar

2000-05-03

NARAYAN ROY, S.N.PATHAK

body2000
Judgment Narayan Roy, J. 1. Heard counsel for the parties. 2. The sole appellant has been convicted under Sections 302 and 498-A of the Indian Penal Code and sentenced to rigorous imprisonment for life and two years, respectively. The sentences have been directed to run concurrently. 3. The prosecution case, briefly stated, is as follows : Lal Mohammads daughter named Sahela Khatoon was married with the appellant Taffazzul Khan seven years before. Sahela Khatoon had no issue and so Taffazzul Khan used to vex her by telling that he would desert her. During last three years, the appellant demanded money from the informant, Lal Mohammad, many times. The informant gave a pair of oxen to his son-in-law but he was not satisfied. Few days before the occurrence, the appellant reached the house of the informant and demanded Rs. 3,000/-from the informants daughter-in-law in absence of the informant. Informants daughter-in-law, Hashina refused to make payment of such huge amount. Therefore, the appellant demanded Rs. 200/- only from her but this too was refused by her. The appellant returned to his home threatening that they would see only the face of dead Sahela. Hasina narrated the incident regarding the demand of money by the appellant to her husband, named, Md. Shakil. The informant sent his son Shakil to his daughters sasural for bringing her to his house but Shakil returned because the accused did not allow Sahela to come to her fathers home. After five days, one Sahid Khan of village Taranga, PS Chanho came to the informant and informed that his daughter was burnt to death. The informant and his son Shakil went to village Taranga, where Sahela was married. They saw the dead body of Sahela. They found the tongue of Sahela protruded, blood was rushing from her nose, there were marks of burn injuries all over the dead body particularly on face. Her legs were tied with cloth. The informant gave information to Chanho Police Station regarding the occurrence. The Chanho police reached to the place where the dead body was lying and prepared inquest report and sent the dead body for post-mortem to the Ranchi Medical College & Hospital. After post- mortem, the dead body of Sahela Khatoon was handed to the informant on 8.4.1991. The informant gave his statement before the police of Sukhdeonagar Police Station which was forwarded to Chanho PS. After post- mortem, the dead body of Sahela Khatoon was handed to the informant on 8.4.1991. The informant gave his statement before the police of Sukhdeonagar Police Station which was forwarded to Chanho PS. Chanho police lodged the First Information Report on 10.4.1991 at 18.30 hours for an occurrence which took place on 7.4.1991. 4. On the basis of the fardbeyan of Lal Mohammad PW 2 lodged before Sukhdeonagar Police Station which was forwarded to Chanho Police Station, Chanho Police Station lodged a First Information report on 10.4.1991 at 18.30 hours for the occurrence which took place on 7.4.1991 and after due investigation, submitted charge-sheet against the appellant Taffazzul Khan, Shawali Khan and Islu Khan under Sections 302/498-A of the Indian Penal Code. The case was committed to the Court of Session and the accused persons were tried and on the basis of the evidence, only the appellant was found guilty whereas other two accused persons, Shawali Khan and Islu Khan were acquitted of the charges levelled against them. 5. The accused-persons have taken a plea of innocence. Their specific defence is that they have been falsely implicated in this case and the deceased Sahela Khatoon committed suicide out of frustration as she had no issue from the appellant. 6. The prosecution in all examined ten witnesses in support of its case. Out of them, PW 1 Mohamad Shakil brother of the deceased, PW 2 Lal Mohammad, the informant, father of the deceased; PW 3 Hasina Khatoon daughter-in-law of the informant PW 2 are witnesses, who had proved the circumstances resulting into murder of deceased Sahela Khatoon. PW 4 Abdul Barik is a witness, who had gone to the place of occurrence and has seen the dead body of the deceased. PWs 5, 6 and 7, namely, Bigu Oraon, Shiv Dayal Oraon and Atwa Oraon have been declared hostile. PW 8 Yasin Khan is a hearsay witness. PW 9 is Dr. Chandrashekhar Prasad, who had held autopsy over the dead body of Sahela Khatoon on 8.4.1991. PW 10, Suresh Prasad Shrivastava is the Investigating Officer of the case. 7. PWs 5, 6 and 7, namely, Bigu Oraon, Shiv Dayal Oraon and Atwa Oraon have been declared hostile. PW 8 Yasin Khan is a hearsay witness. PW 9 is Dr. Chandrashekhar Prasad, who had held autopsy over the dead body of Sahela Khatoon on 8.4.1991. PW 10, Suresh Prasad Shrivastava is the Investigating Officer of the case. 7. The learned trial Court, on the basis of the evidence of the prosecution, held that circumstantial evidence has clearly established the charge under Section 302 of the Indian Penal Code against the appellant Taffazzul Khan and thus, held the appellant guilty for the offence punishable under Section 302 of the Indian Penal Code. It further held that the charge against the appellant under Section 498-A of the Indian Penal Code was also established beyond all reasonable doubts and thus, held the appellant also guilty for the offence under Section 498-A of the Indian Penal Code. At the same time, the learned trial Court held that there was no evidence either direct or circumstantial to prove the charge under Section 302 read with Section 34 of the Indian Penal Code against Islu Khan and Shawali Khan nor there was any evidence to prove the charge under Section 498-A of the Indian Penal Code against them and accordingly, acquitted them of the charged levelled against them. 8. Mr. G.C. Sahu, learned counsel appearing on behalf of the appellant submitted that there is no eye-witness of the occurrence and merely on the basis of circumstantial evidence, conviction and sentence passed against the appellant is not sustainable as circumstantial evidence led by the prosecution does not appear to be reliable. Learned counsel further submitted that on the basis of the First Information Report given by the informant to Chanho Police, an UD case was registered and after completing the inquest report, etc. the dead body was sent for post-mortem to Ranchi Medical College and Hospital and after post-mortem, the dead body was handed-over to the informant on 8.4.1991 and, therefore, no case could have been registered subsequently by the police for the same self accusation. the dead body was sent for post-mortem to Ranchi Medical College and Hospital and after post-mortem, the dead body was handed-over to the informant on 8.4.1991 and, therefore, no case could have been registered subsequently by the police for the same self accusation. Learned counsel for the appellant lastly submitted that the appellant and two other accused-persons, namely, Islu Khan and Shawali Khan was charged under Sections 302/34 read with Section 498-A of the Indian Penal Code and since no separate charge was framed against the appellant under Section 302, IPC, the impugned judgment of conviction and sentence passed against the appellant is not sustainable in law as two other accused-persons, who also faced common charge were acquitted. 9. We have scrutinised the evidence of the prosecution witnesses with all objectivity. The prosecution witnesses, namely, PWs 1, 2, 3, 4, 5, 6 and 7 have supported the case of the prosecution that Sahela Khatoon, the deceased, died out of burn injuries in the house of the appellant, husband of the deceased. PW 10, the Investigating Officer of the case, in his evidence has stated that he inspected the place of occurrence in course of investigation and found the place of occurrence located in village Taranga, PS Chanho towards north-east of the primary school. The place of occurrence was a mud made house of the accused-persons having two doors one in the east and the other in the west and in one of the rooms, the deceased Sahela was found dead. PWs 5, 6 and 7 though have been declared hostile have also said that the occurrence took place in the house of the accused-persons. It would appear from the evidence of PW 5 that he had seen smoke coming out of the house of the accused-persons and had also heard the sound of cries of a lady. Similar is the statement of PWs 6 and 7. On reading of the evidence of PWs 5, 6 and 7, who have been declared hostile, it appears to me that they have supported the prosecution version of the case about the place of occurrence and death of the deceased. 10. Similar is the statement of PWs 6 and 7. On reading of the evidence of PWs 5, 6 and 7, who have been declared hostile, it appears to me that they have supported the prosecution version of the case about the place of occurrence and death of the deceased. 10. PW 2, the informant, in his evidence has stated that on 7.4.1991 one Shahid of village Taranga came to him and told him that his daughter Sahela Khatoon had been burnt to death by the accused-persons and no sooner he received this information, he started for going to village Taranga but he went straightway to Sukhdeonagar Police Station where the police said to proceed to Chanho Police Station but the informant went to Chanho Police and informed Chanho Police about the occurrence where he was informed by the police that the police had already gone to the place of occurrence. He, accordingly, went to the village Taranga where his son Md. Shakil PW 1 and his daughter-in-law PW 3 Hasina Khatoon had already arrived there from before. He immediately saw the dead body of his daughter and found both of her legs tied and her tongue was found protruded. PW 2 in his evidence further stated that her daughter was married with the appellant seven years ago and had given several articles in dowry. He has further stated that he came to know from his daughter-in-law PW 3 that prior to occurrence, the appellant had come to his residence at Ranchi and had demanded a sum of Rs. 5,000/- from his daughter-in-law and on refusal, the appellant had returned with threat to her. From the evidence PWs 1 and 3, son and daughter-in-law of the informant, it would appear that they had seen the dead body of the deceased in the house of the accused-persons and legs of the deceased were found tied and hair of frontal head was found burn whereas hair of back head was found intact and her tongue was found protruded. From the evidence of these witnesses, it further appears that the appellant used to demand money from time to time and immediately before the occurrence the appellant had come to Ranchi and had demanded a sum of Rs. 5,000/- from PW 3 and when she refused to pay Rs. 5,000/-, the appellant demanded at least Rs. From the evidence of these witnesses, it further appears that the appellant used to demand money from time to time and immediately before the occurrence the appellant had come to Ranchi and had demanded a sum of Rs. 5,000/- from PW 3 and when she refused to pay Rs. 5,000/-, the appellant demanded at least Rs. 200/- from her and when the same was not paid to him, the appellant came back to his home hurling threats to PW 3 that she would see the fate of Sahela Khatoon. The evidence of PWs 1, 2 and 3 proves charges against the appellant to the extent that the dead body was found in burnt condition in the house of the appellant and her tongue was found protruded and also that the appellant demanded dowry from PW 3 and on refusal, threats were hurled to her about the fate of the deceased. 11. From the evidence of PW 4, it appears that he had seen the dead body of the deceased in the house of the appellant. PW 8 Yasin Khan is a hear-say witness. PW 9, the Doctor, who held autopsy over the dead body, has stated that he had held the autopsy over the dead body on 8.4.1991 and in course of post-mortem, he found epidermal burns involving whole of the body surfaces and he found carbon particle present in the respiratory passage of the deceased and internal organs were found congested. In the opinion of the Doctor, burn injuries on the person of the deceased were antimortem and the death was caused due to burn and its complications. However, viscera was preserved for chemical examination. From his evidence it also appears that death had taken place 18 to 36 hours before autopsy was held. From the evidence of the prosecution witnesses including the Investigating Officer and the Doctor, it is established beyond reasonable doubts that Sahela Khatoon died out of burn injuries in the house of the appellant. The post-mortem report, Ext. 3, corroborates the prosecution version of the case that the deceased died out of burn injuries. From Ext. 4, the inquest report which has formally been proved by the Investigating Officer, PW 10, it would appear that it was prepared immediately after death of Sahela Khatoon on the day of the occurrence. The post-mortem report, Ext. 3, corroborates the prosecution version of the case that the deceased died out of burn injuries. From Ext. 4, the inquest report which has formally been proved by the Investigating Officer, PW 10, it would appear that it was prepared immediately after death of Sahela Khatoon on the day of the occurrence. It further goes to show that legs of Sahela Khatoon deceased were tied and tongue was found protruded and nose was bleeding. It further shows that there were burn injuries all over the dead body of the deceased. PW 5, who has been declared hostile, however, has admitted that he had put his signature on the inquest report marked as Ext. 2. 12. The evidence of the Investigating Officer has already been discussed above, but I would like to discuss it again to show that PWs 5, 6 and 7 had gone to the place of occurrence and had seen the deceased with burn injuries lying in the house of the appellant. PW 10 in paragraphs 4 and 5 of his evidence has categorically stated that he had recorded the statements of PWs 5, 6 and 7 on 10.4.1991 and they had stated before him that the dead body with burn injuries was found lying in the house of the appellant and both of her legs were found tied and the tongue was found protruded. The evidence of PWs 5, 6 and 7 though declared hostile, however, should not be brushed aside as a whole as they have supported part of the prosecution version of the case to the extent that the dead body having burn injuries was found lying in the house of the husband and her legs were found tied and tongue was found protruded. 13. From the evidence discussed above, it would appear that the deceased was burnt to death by the appellant and it was not a case of suicide and the appellant was, thus, found guilty of murder under Section 302 of the Indian Penal Code. 14. Now coming to the submission of the learned counsel for the appellant, I find that the appellant and two accused-persons were charged under Sections 302/34 read with Section 498-A of the Indian Penal Code. It is true that no alter native charge was framed under Section 302 of the. Indian Penal Code against the appellant. 14. Now coming to the submission of the learned counsel for the appellant, I find that the appellant and two accused-persons were charged under Sections 302/34 read with Section 498-A of the Indian Penal Code. It is true that no alter native charge was framed under Section 302 of the. Indian Penal Code against the appellant. Learned counsel for the appellant in support of his contention that since no independent charge was framed under Section 302 of the Indian Penal Code against the appellant and since common charge under Sections 302/34 of the Indian Penal Code could not be proved against other two accused-persons as a result of which they were acquitted, the appellant was also entitled for acquittal, placed reliance in the case of State of West Bengal V/s. Vindu Lachmandas Sakhrani alias Deru, AIR 1994 SC 772 . In the case of State of West Bengal v. Vindu Lachmandas Sakhrani alias Deru, (supra), the Apex Court held that charge which was based on the common intention of the two accused failed with acquittal of one of them and there being no charge under Section 302, IPC simpliciter, conviction of another accused under Section 302 was not sustainable specially in absence of any evidence on record to show that another accused independently committed the offence. 15. In the instant case, it appears that common intention is not core of the charge and there are ample evidence to show that the appellant independently committed the offence. It is a case where evidence has come to show that it was the appellant in whose house the dead body was found and other accused-persons, who were tried with the appellant were living separately. It has also come in evidence that it was the appellant, who had demanded dowry. In my opinion, the decision of the Apex Court in the case of State of West Bengal v. Vindu Lachmandas Sakhrani alias Deru (supra) is not applicable in the facts and circumstances of the case. 16. It has also come in evidence that it was the appellant, who had demanded dowry. In my opinion, the decision of the Apex Court in the case of State of West Bengal v. Vindu Lachmandas Sakhrani alias Deru (supra) is not applicable in the facts and circumstances of the case. 16. A Constitutional Bench of the Supreme Court in the case of Willie (Villiam) Slaney V/s. State of Madhya Pradesh, AIR 1956 SC 116 , has held that having regard to the nature of the charge framed, the omission to frame a separate charge under Section 302, Penal Code against the convict was only a curable irregularity which in the absence of prejudice could not affect the legality of conviction under Section 302, Penal Code. The Apex Court has observed as follows : "The appellant was charged with murder and nothing short of it, although it was stated in the charge that the offence was committed by him in furtherance of a common intention. If the evidence failed to prove that the offence committed by him was in furtherance of a common intention it would be nonetheless his offence, namely, murder, if his act in law amounted to murder. The law does not require in such a case that a separate charge for murder should be framed, because the charge of murder was already on the record." 17. In the light of the discussions aforementioned, therefore, I do not find any force in the submissions of the learned counsel for the appellant and it was held that the prosecution has proved the charge of murder of Sahela Khatoon against the appellant beyond all reasonable doubts. 18. In the result, this appeal is dismissed and the judgment and order of conviction and sentence passed against the appellant is hereby affirmed.