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2012 DIGILAW 299 (MP)

Mohammad Mubeen v. State of M. P.

2012-03-15

A.K.SHRIVASTAVA

body2012
JUDGMENT 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 14.3.1996 passed by learned IX Additional Sessions Judge, Bhopal in Sessions Trial No. 345/1994 convicting the appellant under sections 498-A and 306 IPC and thereby sentencing him to suffer rigorous imprisonment of three years and five years and fine as mentioned in the impugned judgment, this appeal has been filed by the appellant under section 374 (2) of the Code of Criminal Procedure, 1973. 2. In brief, the case of prosecution as borne out from the judgment is that appellant who is husband of the deceased Shahnaz (hereinafter referred to as ‘deceased’) was harassaing her as a result of which on 11.6.1994, in the house of appellant, she set upon her to fire after pouring kerosene over her. In burnt condition, she was brought to the hospital where she died during the course of treatment. On receiving the information by Mahila Thana, Bhopal, a case was registered under section 498-A IPC and when during the course of investigation, the deceased died, the case was also registered under section 306 IPC, in the alternative 304-B IPC. 3. After investigation was over, a charge sheet was submitted in the committal Court which on its turn, committed the case to the Court of Sessions and from where it was received by the Trial Court for the Trial. The learned Trial Judge on the basis of material available in the chargesheet, framed charges punishable under section 498-A read with section 306 and in the alternative, 304-B IPC which appellant denied and requested for trial. 4. The prosecution, thereafter, examined its 13 witnesses and also placed Ex. P-1 to P-13 the documents on record. The defence of appellant is that indeed, the deceased was desirous to get married with some other boy but when she was not married to him, she committed suicide. In support of his defence, the appellant examined one Mohd. Mukeem (DW-1). The learned Trial Judge on the basis of evidence placed on record, came to hold that the charges punishable under sections 498-A and 306 IPC are proved against the appellant and eventually, convicted him and passed the sentences which are mentioned here-in-above. 5. In this manner, this appeal has been filed by the appellant assailing the judgment of conviction and order of sentence. 6. 5. In this manner, this appeal has been filed by the appellant assailing the judgment of conviction and order of sentence. 6. The contention of Shri Umesh Shrivastava, learned counsel for the appellant is that except the dying declaration of the deceased (Ex. P-3), there is no other evidence on record that deceased was ever harassed or subjected to cruelty by the appellant and therefore, his conviction is bad in law. By putting the deep dent on the authenticity of the dying declaration, it has been put forth by the learned counsel that since it has been stated by the deceased that she was not having any enmity with anybody, therefore, the appellant cannot be convicted for the charges framed against him. Alternative submission has also been put forth by learned counsel that if this Court comes to the conclusion that the charges are proved, some leniency may be adopted in awarding the sentence as appellant has already undergone jail sentence of one year nine months. 7. On the other hand, learned counsel for the respondent argued in support of the impugned judgment and submitted that conviction can be accorded solely on the basis of dying declaration and looking to the averments made in the dying declaration against the appellant, the charges are proved. 8. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed in part. 9. On bare perusal of ‘Nikahnama’ (Ex. P-16), it is gathered that the deceased got married to the appellant on 22.4.1994. The incident had occurred on 11.6.1994. Hence, within a short span of two months the incident had occurred. True, the prosecution has examained Usma (PW-3) who is relative of the deceased from her mother’s side, Sheikh Zafar (PW-8) the brother of deceased and Shaku (PW-9) her uncle were declared hostile by the prosecution since they did not support the case of the prosecution. However, merely because they have been declared hostile, it would not mean that the appellant was innocent. In the present case, immediately after the incident on the same day i.e. 11.6.1994, the Investigating Agency arranged to record dying declaration which was recorded by the Executive Magistrate Nisar Ahmad Rizvi (PW-2). 10. On bare perusal of the testimony of the Executive Magistrate (PW-3) and by keeping in juxtaposition to the document of dying declaration (Ex. In the present case, immediately after the incident on the same day i.e. 11.6.1994, the Investigating Agency arranged to record dying declaration which was recorded by the Executive Magistrate Nisar Ahmad Rizvi (PW-2). 10. On bare perusal of the testimony of the Executive Magistrate (PW-3) and by keeping in juxtaposition to the document of dying declaration (Ex. P-3), it is gathered that two months earlier to the incident, she got married to the appellant. According to her, on 11.6.1994 at 2.00 a.m. when all the family members were sleeping and her husband was also sleeping, she pured kerosene upon her and subjected her to fire because she was being harassed by the appellant for minute things repeatedly and daily. He also used to beat her daily and in order to get rid of the harassment as well as to save himself from cruelty of maarpeet, she has committed suicide. Repeatedly, in her dying declaration, she has stated that for minute things, appellant happened to quarrel and also used to cause maarpeet to her daily as a result of which she has taken this dire step. On bare perusal of the testimony of Executing Magistrate, nothing is carved out to disbelieve the dying declaration even after scanning from all the angles. On going through the said dying declaration, the only picture which is formed is that for minute things, the appellant was harassing his wife (the deceased) and also causing maarpeet to her daily and therefore, his behaviour was cruel towards her. According to me, if repeatedly, for several times and that too, daily, a wife is harassed and subjected to cruelty, this would come within the ambit and sphere of section 107 IPC where abatement has been defined and explained. Therefore, the aforesaid act of appellant amounts to abate the deceased for committing the suicide. Looking to the presumptive clause under section 113 A of the Evidence Act, it shall be presumed that the appellant was cruel towards the deceased and on account of harassment and cruelty, she committed suicide. Needless to say the statutory period of seven years of marriage envisaged in this section was not expired. In this regard, I may profitably place reliance on the decision of Supreme Court in Thanuram v. State of Madhya Pradesh (2010) 10 SCC 353 . 11. Needless to say the statutory period of seven years of marriage envisaged in this section was not expired. In this regard, I may profitably place reliance on the decision of Supreme Court in Thanuram v. State of Madhya Pradesh (2010) 10 SCC 353 . 11. The dying declaration envisaged under section 32 (1) of the Evidence Act is based upon legal maxim “nemo moriturus praesumitur mentire” which means that a man will not meet his master with a lie in his mouth and thus, from the beginning, the law has been developed that if the dying declaration is clear, cogent and trustworthy, a conviction can be based solely on its basis and there is no needfor any corroboration by any witness. But before placing reliance on it, Courts must always be at guard to see that dying declaration was not the result of either tutoring or promoting for a product of imagination. Further, it is the duty of the Courts to find that deceased was in a fit state of mind to make the dying declaration. No decision is required to be cited on this point but I may place reliance on certain decisions, they are ; Kalawati v. State of Maharashtra ¼2009½ 4 SCC 37, Ongole Ravikanth v. State of Andhra Pradesh ¼2009½ 13 SCC 647 and Bapu v. State of Mahashtra (2006) 12 SCC 73 . 12. From the dying declaration, it is also borne out that since the appellant was causing maarpeet to the deceased daily, he has also committed an offence under section 498-A of the IPC. I have gone through the reasons assigned by the learned trial Court and I find that the findings arrived at by the learned Trial Court are based upon correct appreciation of evidence. 13. I do not find any merit in the contention of learned counsel for the appellant that because in the dying declaration, it has been stated by the deceased that she is not having any enmity with anybody, therefore, the appellant is innocent. If the dying declaration is considered in its entirety, it is found that at several places the deceased has stated that on account of cruel behaviour of the appellant and harassment, she took this drastic action to commit suicide. Thus, I am of the view that the appellant has been rightly convicted for the offence punishable under section 498-A and 306 IPC. 14. Thus, I am of the view that the appellant has been rightly convicted for the offence punishable under section 498-A and 306 IPC. 14. The learned counsel has placed reliance on the decision of the Supreme Court in Mahendra Singh and another v. State of M.P. 1995 Suppl. (3) SCC 731 on the point of sentence which now I shall deal with. It is borne out from the record that appellant has already suffered jail sentence for about one year nine months. The appellant is a young boy and it is not proved that appellant was insisting for any dowry. In this view of the matter, the jail sentence u/S. 498-A IPC is reduced from three years to one year R.I. while the jail sentence u/S. 306 IPC is reduced from five years to three years R.I. No interference is called so for the fine amount imposed by the learned Trial Court. The amount of fine as imposed by learned Trial Court shall remain intact. With the aforesaid modification in the sentence awarded to the appellant, the conviction of appellant under section 498-A IPC and 306 IPC, is hereby affirmed. 15. Resultantly, this appeal is allowed in part. The conviction of appellant under sections 306 and 498-A IPC is hereby affirmed. However, sentence is modified to the extent indicated here-in-above. The appellant is on bail. He shall surrender before learned Trial Court on 30.4.2012. His bail bonds shall stand cancelled only after he surrenders on or before 30.4.2012. The trial Court is hereby directed that in case the appellant fails to surrender on or before 30.4.2012, a perpetual arrest warrant be issued against him and notice be also issued to his surety and necessary order may be passed against the surety. In case, however, appellant surrenders on or before 30.4.2012, his bail bonds shall stand cancelled. The learned Trial Court is further directed to intimate the Registry of this Court after sending the appellant to jail. Let the original bail papers be sent to learned Trial Court and the photocopy thereof be retained for record in that file of this Court. The Registry is hereby directed to send the record posthaste so as to reach the Trial Court much prior to 30.4.2012.