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2007 DIGILAW 604 (JHR)

Md. Alam v. State of Bihar

2007-07-30

D.K.SINHA

body2007
JUDGMENT D.K Sinha, J.-The present Cr. Appeal is directed against the judgment of conviction under Section 304B/498A I.P.C. and order of sentence passed by the 1st Additional Sessions Judge, Chaibasa in Sessions Trial No. 138 of 1997 whereby and whereunder each of the appellants was sentenced to undergo rigorous imprisonment for 10 years and rigorous imprisonment for two years on each count with the stipulation that both the sentences against them would run concurrently. 2. The prosecution story as it stands narrated in the Fardbayan (Ext. 3) of the informant P.W. 3 Md. Umar on 17.9.96 was recorded in the following manner that his sister Rashida Khatoon (since deceased) was married to the appellant Md. Alam son of the appellant No.2 Md. Rafiq in the year 1990. Soon after the marriage her sister was tortured by her husband, father-in-law, mother-in-law and the elder brother of the husband Md. Siraj for dowry. She was often scolded and assaulted by them who had been extending threat to commit her murder. The fact was complained by her during visit to her parental home time to time but the witnesses were tolerating apprehending otherwise dissolution of her marriage. Yet, the witnesses tried to resolve the differences but in spite of the efforts they continued perpetrating torture to her by putting pressure to bring dowry from her parental home. On 14.9.96 they were informed by Babloo Mama on telephone from Chakradharpur that Rashida Khatoon was serious. Pursuant to sucn information, the witnesses clame to Chakradharpur in the evening and went to the matrimonial home of Rashida where they learnt that she was removed to Tata in precarious condition. The informant alongwith his another sister Jahida Khatoon, younget brother Nuruddin and Babloo Mama came to Tata and in course of interaction the victim Rashida Khatoon, apprised that in the night of 13.9.96 at about 10 O'clock her husband, mother-in-law and father-in-law (all the three appellants) lit her body on fire with the help of matches after pouring kerosene oil and at that time her all four limbs were tied. She narrated that in spite of her screaming, none of them came forward to save her life and they returned to their rooms. She narrated that in spite of her screaming, none of them came forward to save her life and they returned to their rooms. Yet, on her screaming when the neighbouring people started assembling, her husband came and pretended to put out the fire from her body by pouring water, opened the door then the Mahalia people came in with the help of whom she was removed to Railway Hospital, Chakradharpur with severe burn injuries and from there to Tata. Rashida Khatoon succumbed her injuries in course of treatment on 16.9.96 at about 5 p.m. The informant further narrated that the elder brother of her husband Md. Siraj had come to Chakradharpur on 13.9.96 who hatched conspiracy and pursuant to that Rashida was burnt by pouring k. oil as a result of which she died. The informant put his signature on his statement, which was proved and marked Ext. 2. The police registered Chakradharpur PS. Case No. 124/96 on 17.9.96 under Section 304B/120B I.P.C. and after investigation charge-sheet was submitted. Charge against all the three appellants including one Md. Siraj was framed under Sections 302/34, 498A/34 LPC. Yet, separate charge against the appellants was framed under Section 304B LPC. It is evident that the charge under Section 114 r/w Section 304B was framed against the co-accused Md. Shiraj and all the four were put on trial. 3. As many as 5 witnesses were produced Gild examined on behalf of prosecution. Besides, the prosecution proved the post mortem report Ext. 1, signature of the informant Md. Umar' on his Fardbayan Ext. 2, Fardbayan Ext. 3, Formal F.LR. Ext. 4 and pages 1 to 49 of the case diary (Ext. 5). 4. Learned Counsel assailed the impugned judgment and order on the ground that there was unexplained inordinate delay in lodging the F.I.R. The informant learnt about the occurrence on 14.9.96 and pursuant to that he went to Chakradharpur Railway Hospital and from ,there to Tata Main Hospital, Jamshedpur but no case was instituted against the appellants until the death of Rashida Khatoon on 16.9.96 of burn injuries. Learned Counsel pointed out that the prosecution case was that Rashida Khatoon before her death had explained the cause of her burn injuries to the witnesses but in spite of such narration neither police was informed about the cognizable offence nor any attempt was made to get her dying declaration recorded which gives rise to the cuncoction and inference that the occurrence did not take place in the manner presented by the prosecution. The learned Counsel exhorted that the informant of the instant case P.W. 3 Md. Umar, cousin (brother) of the deceased did not support the prosecution case being unfavourable and in this manner the entire prosecution case is liable to be disbelieved as it could not be proved. 5. Advancing his argument the learned Counsel submitted that the material before the trial court was the uncorroborated statement of P.W. 2 Jahida Khatoon i.e. own sister of the deceased. Her statement in the Court is inconsistent with the testimony of other two witnesses viz. P.W. 3 Md. Umar and P.W. 4 Md. Nazir but even then the trial court convicted the appellants without scrutinizing the veracity and truthfulness of her statement. 6. Advancing his argument, learned Counsel Mr. Dayal submitted that the trial court perhaps lost sight of the fact that P.W. 2 in her statement on oath had alleged that the appellants had been perpetrating torture to her sister by not providing proper food and they were quarrelsome to her but she never whispered regarding demand of dowry by them in cash or kind to be brought from her parental home and this fact finds place from the Fardbayan (Ext. 3) of the informant itself which did not disclose the natural of demand of dowry. It was simply alleged in a very casual manner, an allegation made for allegation sake which was not supported by the informant in his substantive evidence. The learned Counsel submitted that the parents of the deceased abstained from the witness box conspicuously for the reasons best known to the prosecution and truth could not be revealed. The informant and other witnesses though reproduced the version of Rashida Khatoon that the neighbours arrived on her screaming and cry at her matrimonial home but none of the neighbours was produced and examined who could have been an independent witness to reveal the truth and in this manner adverse inference can be drawn against the prosecution. The informant and other witnesses though reproduced the version of Rashida Khatoon that the neighbours arrived on her screaming and cry at her matrimonial home but none of the neighbours was produced and examined who could have been an independent witness to reveal the truth and in this manner adverse inference can be drawn against the prosecution. Similarly, the Doctor of the Railway Hospital, Chakradharpur who attended the injured first point in time and the Doctor who attended the injured at the T. M. H., Jamshedpur and provided treatment to her burn injuries were not examined and for such lapses the appellants have been highly prejudiced for being denied of opportunity to cross-examine them on the issue of nature of injuries sustained by Rashida and as to whether she was capable to speak on sustaining such burn injuries. They have been denied the opportunity to put questions to the doctors as to whether they had enquired from the victim as to the cause of her burn injuries and what was her reply. 7. The learned Counsel attracted the attention by submitting that the Investigating Officer of this case was not examined and therefore, there was no objective finding of the Investigating Officer on the record in respect of the alleged place of occurrence and of the fact as to whether the burn sustained by the victim was bomicidal, suicidal or accidental in view of the evidence of P.W. 1 Dr. Yogendra Nath who held autopsy on the body and suggested that the mode of burn was to be investigated by the Investigating Officer Similarly, there was no evidence on the record that in the near proximity of her unnatural death Rashida Khatoon was subjected to torture by the appellants for dowry. 8. Concluding his argument Mr. Dayal submitted that the prosecution miserably failed to discharge its burden so as to shift the onus upon the appellants under Section 1138 of the Indian Evidence Act to prove their innocence and under the facts and circumstances the entire prosecution case is disproved. 9. The appellants were examined after conclusion of prosecution evidence and their statements were recorded under Section 313 Cr.P.C. Their specific defence was denial of guilt innocence and that Rashida Khatoon sustained fire in her clothes while she was cooking food, as a result of which she died of burn injuries. 9. The appellants were examined after conclusion of prosecution evidence and their statements were recorded under Section 313 Cr.P.C. Their specific defence was denial of guilt innocence and that Rashida Khatoon sustained fire in her clothes while she was cooking food, as a result of which she died of burn injuries. The appellants were specific that, no demand of dowry in the kind of TV. was ever made to her. 10. Mr. Manoj Kumar, A.P.P. opposed the contention of the learned Counsel for the appellants and submitted that there was specific allegation against the appellants was of demanding dowry in the kind of TV. and in this connection Rasllida Khatoon was subjected to torture and assault. 11. Learned A.P.P. further submitted that the delay in lodging F.I.R. has been properly explained in the judgment. He exhorted that P.W. 2 Jahida Khatoon i.e. the own sister of the deceased has testified the detailed account of occurrence by narrating as to how Rashida used to complain against her in-laws (appellant) whenever she visited her parental home in, respect of torture perpetrated to her and that her food was stopped by them. 12. Advancing his argument learned A.P.P. submitted that the unfortunate part of this case is that the informant was the cousin and P.W. 4 Md. Nazir the another brother of the deceased though were not consistent in their testimony but the appellants were convicted by the trial court on the solitary testimony of P.W.2 Jahida Khatoon as her testimony appeared unimpeachable to the trial court. 13. Having heard the learned Counsel for the parties, I find that the delay in lodging the F.I.R. has been explained by the prosecution. The occurrence took place in the night of 13.9.96 at about 10 p.m. and the Fardbayan of the Informant P.W. 3 Md. Umar was' recorded on 17.9.96 at 14 hours; The F.I.R. was lodged on the basis of the Fardbayan on the same day at 15 hours. The informant and other witnesses were communicated on 14.9.96 by one Babloo Mama in respect of the burn injuries sustained by Rashida Khatoon and the witnesses arrived Chakradharpur on the same day. On arrival at Chakradharpur they learnt that Rashida Khatoon was shifted to T.M.H., Jamshedpur for the better management of her burn injuries and pursuant to such information they went there and met Rashida Khatoon in the ward on the same day. On arrival at Chakradharpur they learnt that Rashida Khatoon was shifted to T.M.H., Jamshedpur for the better management of her burn injuries and pursuant to such information they went there and met Rashida Khatoon in the ward on the same day. P.W. 2 Jahida Khatoon claimed that her sister Rashida narrated before her as to the cause of her burn injuries. It was 15.9.96 and the witnesses including the informant did not communicate the cognizable offence of bride burning, as alleged, to the police out-post available in the Tata Main Hospital, Jamshedpur or at Chakradharpur Police Station. The informant and the other witnesses neither informed the police on 14, 15 or 16th September, 1996 nor they tried that the statement of the victim could be recorded by the Doctor, Police or Magistrate to be treated as relevant fact under Section 32 of the Evidence Act. 14. I find substance in the argument advanced on behalf of the appellants that neither the Doctor of Chakradharpur Railway Hospital nor of T.M.H., Jamshedpur was produced and examined on behalf of the prosecution who could have revealed the nature as well as cause of injuries on the person of Rashida Khatoon. They could have also revealed as to whether Rashida Khatoon was capable to speak or narrate the circumstances wherein she sustained burn injuries, to the witnesses as claimed. Even bed head tickets of both the hospitals were not produced before the trial court. 15. The statement of P.W. 1 Dr. Yogendra Nath who proved the post mortem report Ext. 1 reveals that death was due to septicemia and toxemia on account of burn injuries. The Doctor clearly expressed that the mode of burn could not be ascertained by him and he assessed time elapsed since death within 12 to 24 hours. In the cross-examination he testified that in the case of Toxemia the temperature of body may rise up to 104 degree F and there was possibility of the patient to become unconscious and such state of victim coupled with restlessness may cause death. 16. Finally the Doctor suggested that the mode of burn was to be investigated by the Investigating Officer so as to find out as to whether it was accidental, suicidal or homicidal. 17. 16. Finally the Doctor suggested that the mode of burn was to be investigated by the Investigating Officer so as to find out as to whether it was accidental, suicidal or homicidal. 17. It would be relevant to mention that P.W. 2 Jahida Khatoon narrated before the court on oath that she vilas apprised by Rashida Khatoon that the appellants after tying her hands and legs lit her body on fire with matches after pouring kerosene oil but no injury in the shape of ligature was found either on her wrist joint or ankle joints or any other kind of impression thereon in the post mortem report. I find substance that the abstinence of the Investigating Officer of the case from the witness box has highly prejudiced the defence of the appellants. There is no objective finding of the Investigating Officer, suggestive in nature, as to the cause of burn injuries 'on Rashida Khatoon, whether it was accidental, suicidal or homicidal. Similarly neither bed head tickets nor material exhibit has been produced in the court, of container of kerosene oil, matches, burnt pieces of clothes and other household or relevant articles as to the cause of fire whereby Rashida sustained fire on her body. As per defence version that Rashida got fire in her clothes while cooking food, the prosecution did not produce any oven or stove which caused shooting flames which engulfed the body of Rashida Khatoon. In this manner I find and hold• that the prosecution failed to establish the circumstances wherein Rashida sustained burn injuries which resulted in her unnatural death, admittedly within seven years of her marriage. 18. I further find that the parents of the deceased conspicuously abstained from the witness box. Similarly, Babloo Mama who attended Rashida Khatoon first point in time and sent information to the informant and other witnesses was not produced as a prosecution witness. Similarly, the neighbours of the matrimonial home of the victim who assembled at the place of occurrence on the screaming and cries of the victim were also not examined who were the important witness and had attended the prevailing situation soon after the occurrence of fire. 19. Similarly, the neighbours of the matrimonial home of the victim who assembled at the place of occurrence on the screaming and cries of the victim were also not examined who were the important witness and had attended the prevailing situation soon after the occurrence of fire. 19. As regards the so-called dying declaration of Rashida Khatoon before RW 2 Jahida Khatoon her own sister, the witness testified that at the relevant time while the victim Rashida Khatoon was narrating the cause of her burn injuries alleging the complicity of the appellants therein, the Doctors of T.M.H., Jamshedpur, two nurses & Babloo Mama were also present there but none of them was examined in the Court in support of so-called dying declaration and therefore it would not be safe to rely upon the uncorroborated statement of RW. 2 Jahida Khatoon. 20. The only material in respect of demand of dowry is found in the statement of RW 4 Mr. Nazir who was the full brother of the deceased. The witness testified that whenever Rashida Khatoon used to come to parental home with her husband she used to narrate about the torture being perpetrated to her by the appellants and the elder brother of her husband for and in connection with demand of a television and that she used to narrate her miseries to her parents in his presence. The witness admitted that such complain was never made to him but to her parents and the parents have not been examined in the court so as to substantiate the allegation. I further find that Jahida Khatoon (RW 2) has testified and narrated several facts including the torture being perpetrated by the appellants to Rashida Khatoon during her lifetime and also that her food was stopped by them but she never alleged in her statement on oath that the appellants had ever demanded dowry from her sister Rashida Khatoon (since deceased) and in this manner the demand of dowry by the appellants prior to her death could not be proved. 21. In view of the facts stated above I find that the prosecution failed to prove the charge under Section 3048/ 34, 498A/34 I.P.C. against the appellants beyond the shadow of all reasonaole doubts that soon before her death Rashida was subjected to cruelty and harassment in connection with the demand of dowry. 21. In view of the facts stated above I find that the prosecution failed to prove the charge under Section 3048/ 34, 498A/34 I.P.C. against the appellants beyond the shadow of all reasonaole doubts that soon before her death Rashida was subjected to cruelty and harassment in connection with the demand of dowry. The ingredients as envisaged for constituting offence under Section 3048 I.P.C. or under Section 498A I.P.C. could not be proved. 22. In the result, the judgment of conviction of the appellants and order of sentence recorded thereto against them are unsustainable and hence it is set aside. 23. The appellants are, therefore, acquitted. Their bail bonds stand discharged.