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Madhya Pradesh High Court · body

2007 DIGILAW 1157 (MP)

Ayyub Ali v. State of M. P.

2007-10-31

S.L.KOCHAR

body2007
JUDGMENT :- The appellant has filed this appeal, challenging his conviction u/S. 498-A of the IPC, sentence to undergo RI for three years with fine of Rs. 5,000/-; in default whereof to undergo RI for six months, passed by learned Addl. Sessions Judge, Jaora in ST No. 181/1990, judgment dated 1st October 1994. 2. Prosecution case in short as put forth before the trial Court is that on 6-10-1989 at about 7.45 p.m. wife of the appellant Jubeda committed suicide in his residential house situated in Jaora because the appellant was intentionally harassing her and ill-treating her by demand of dowry, she was also beaten. Because of demand of dowry, ill-treatment, harassment and beating, the wife of the appellant Jubeda committed suicide by consuming some poisonous substance. 3. The matter was reported from Civil Hospital, Jaora to police by Dr. Shrivastava through report (Ex. P. 1). SHO Laxmansingh Chouhan (P. W.7) registered inquest No. 15/ 1989 and started enquiry. In enquiry, he found that appellant was ill-treating his wife for demand of dowry and registered the offence u/S. 306 of the IPC against the appellant. In search of the house of the appellant, letters were seized and one letter was seized from father of deceased. Fate Mohammed (P.W.3). After inquest proceedings, dead body was sent for postmortem examination and the same was conducted on 7-10-1989 by Dr. I. L. Chandelkar (P.W. 2). The postmortem report is Ex. P.2. Dr. Chandelkar did not find any external or internal injury and could not be in a position to give any opinion about cause of death, therefore, he preserved viscera and same was sent for chemical examination. In viscera report vide Ex. P. 24 it has come that deceased consumed some poisonous substance/pesticide "BHC". On completion of investigation, police filed the charge sheet for commission of offence of dowry death against the appellant. 4. The appellant denied the charges and submitted that he had love marriage with the deceased and never demanded dowry and also did not ill-treat her for demand of dowry. The appellant pleaded his false implication. He has not examined any witness in defence. The learned trial Court, while acquitting the appellant for commission of offence u/Ss. 304-B and 306 of the IPC, convicted and sentenced the appellant as mentioned herein above. 5. The appellant pleaded his false implication. He has not examined any witness in defence. The learned trial Court, while acquitting the appellant for commission of offence u/Ss. 304-B and 306 of the IPC, convicted and sentenced the appellant as mentioned herein above. 5. The learned counsel for appellant has submitted that there is no cogent and reliable evidence on record to establish that the appellant practiced cruelty with the deceased wife and the learned trial Court has erred in convicting the appellant u/S. 498-A of the IPC especially when the offence u/Ss. 304-B and 306 of the IPC have not been proved by the prosecution and the appellant has been acquitted from these charges. The learned counsel has also urged that the learned trial Court mainly relied upon the letters (Ex. P.9 to P. 19) seized by Investigating Officer Laxmansingh Chouhan (P.W. 7) from the house of the appellant, but no questions were put in accused statement by the learned trial Court recorded u/S. 313 of the Cr. P.C., therefore, any contents of the letter cannot be used against the appellant as evidence because he has not been given opportunity of explaining the contents and substantive and material circumstances. According to learned counsel, it has caused prejudice to the appellant. 6. On the other hand, the learned counsel for State has supported the impugned judgment and finding arrived at by the learned trial Court. 7. Having heard the learned counsel for the parties and after perusing the entire record, this Court is of the opinion that conviction of the appellant is not sustainable because the letters (Ex. P.9 to P. 19) said to have been seized by Laxmansingh Chouhan, Investigating Officer (P.W. 7) cannot be taken into consideration in evidence because there is no evidence available on record that these letters were written by deceased to appellant. Though, these letters were sent to handwriting expert along with specimen handwriting of the deceased, but handwriting expert report Ex. P. 30, 31 and 32 have not been proved in Court by examination of handwriting expert. These reports have been exhibited only in the statement of Shri Chouhan (P.W. 7). It is well settled legal position that mere exhibition of handwriting expert report is not sufficient to consider it in evidence unless the expert is examined in Court and opportunity of cross-examination is given to the defence. These reports have been exhibited only in the statement of Shri Chouhan (P.W. 7). It is well settled legal position that mere exhibition of handwriting expert report is not sufficient to consider it in evidence unless the expert is examined in Court and opportunity of cross-examination is given to the defence. Provision of Sec. 293 of the Cr. P.C. is not applicable for handwriting expert report. The handwriting expert is not falling under this provision, therefore, examination of handwriting expert was must. The prosecution case further deteriorated because of not putting any question in accused statement to the appellant regarding contents of the letters Ex. P.9 to P. 19 and Ex. P. 5. The Judgment of the learned trial Court for conviction of the appellant u/S. 498-A of the IPC is mainly based on the contents of the letter Ex. P. 5 and P. 9 to P. 19. Letter Ex. P. 5 was proved by father of the deceased Fate Mohd (PW.3) and he has also stated that it was in the handwriting of his daughter, but this letter is not containing any date and there is no evidence on record that within a reasonable proximity of time from the date of commission of suicide by the deceased letter was written. The contents of the same cannot be used for establishing that appellant practiced cruelty with the deceased and because of which she committed suicide. 8. The oral evidence regarding cruelty by deceased Fate Mohd. (PW.3) is also not sufficient because in cross-examination, para seven, he has admitted that he did not disclose to police in his case diary statement about giving information to him by his wife, the mother of the deceased that Jubeda was beaten once or twice by the appellant. He has also admitted about not disclosing the fact to police regarding demand of money by the sister named Sherbano of the appellant and on refusal, she delivered threat. In para six, this witness has specifically admitted that after his return from Saudi Arabia to Indore, deceased came to him and lived for two and a half months, thereafter appellant took her to his house. After one and a half to two months, she died. There is no evidence on record that during this period of one and a half to two months there was any ill-treatment given to deceased by the appellant. After one and a half to two months, she died. There is no evidence on record that during this period of one and a half to two months there was any ill-treatment given to deceased by the appellant. No letter was found written by the deceased to her parents. Under these circumstances, the statement of Fate Mohd. is not sufficient to establish that deceased was ill-treated within reasonable period from the date of her death. About ill-treatment and beating, deceased did not disclose anything to him and he was informed by his wife and this fact is missing in his case diary statement. 9. The another witness is the mother of the deceased Maimunabai (P.W. 6). This witness, in examination-in-chief, para one, has specifically stated that deceased was killed by administration of poison and this she had heard and came to know, but no evidence has come on record from whom and where she came to know this fact. This shows her prejudice against the appellant. Maimunabai has stated in para three that before one year from the date of death of deceased she was taken to Indore for delivery, at that time she told her that appellant was beating her for demand of dowry and complained for inappropriate dowry given to him by her parents. After six months deceased was sent to the house of the appellant when appellant came to take her back. No evidence has come on record in the statement of this witness that during the period of six months, there was any event of illtreatment with the deceased by the appellant. She failed to explain the material omission in her case diary statement (Ex. D.1) about demand of dowry and ill-treatment on this count by the appellant with the deceased. Because of this omission, there remain no evidence of this witness against the appellant regarding ill-treatment with the deceased for any reason. On the contrary, in para seven she has stated that appellant and her deceased daughter entered into love marriage and it was with their consent. Appellant had visited their house and after delivery, deceased did not made any complaint against the appellant regarding ill-treatment or demand of dowry. In view of the material omission and contradictions in the statement of father Fate Mohd (P.W. 3) and mother Maimunabai (P.W.6), their statements are of no use for proving the guilt of the appellan. 10. Appellant had visited their house and after delivery, deceased did not made any complaint against the appellant regarding ill-treatment or demand of dowry. In view of the material omission and contradictions in the statement of father Fate Mohd (P.W. 3) and mother Maimunabai (P.W.6), their statements are of no use for proving the guilt of the appellan. 10. In view of the aforesaid legal and factual discussion, this appeal is allowed. Conviction and sentence of the appellant passed by the learned trial Court by the impugned judgment are hereby set aside. Appellant is on bail. His bail bond and surety bond stand discharged. Appeal allowed.