Research › Search › Judgment

Uttarakhand High Court · body

2013 DIGILAW 451 (UTT)

SALEEM v. STATE OF UTTARAKHAND

2013-07-08

ALOK SINGH

body2013
JUDGMENT Hon’ble Alok Singh, J (Oral). Present appeal is directed against the judgment and order dated 06.07.2010 passed by Sessions Judge, Haridwar in Sessions Trial Nos. 92 of 2009 and 73 of 2010 whereby appellants were held guilty for the offence punishable under Section 304-B IPC and each was sentenced to undergo rigorous imprisonment for a period of 7 years. 2. Brief facts of the present case, inter alia, are that PW1 Tasleem Ahmad submitted a report with police station Kotwali Laksar on 10.12.2008 at 04.20 p.m. stating therein his sister Shahnaz got married with Mustakeem about 2 ½ years ago in the year 2006, as per Muslim Rites and Rituals; motorcycle, refrigerator, sofa-set, jewellery and other items were given in the dowry, at the time of marriage; despite this in-laws of Shahnaz kept on taunting her for bringing less dowry; Mustakeem used to beat her; Shahnaz made several complaints; PW1, after counselling her, sent her back to her matrimonial house; on 09.12.2008, he (PW1) came to know that Shahnaz was set on fire by her husband Mustakeem and other accused persons; having heard the hue and cry of Shahnaz, people from the vicinity reached on the spot; accused persons under the pressure of neighbours took Shahnaz to Roorkee Hospital and from Roorkee Hospital to Meerut Hospital; family members of Shahnaz were not informed about the incident; having acquired the knowledge, PW 1 and other family members of Shahnaz, could reach to Anand Hospital, Garh Road, Meerut and found Shahnaz admitted in the hospital, on being asked by PW1 and other family members, Shahnaz told them that she was set on fire by her husband, brother-in-law; mother-in-law, father-in-law. 3. Having investigated the matter, charge-sheet was submitted against the accused persons for the offence punishable under Section 304-B IPC. After committal of the case, trial court was pleased to frame charges against all the accused persons for the offences punishable under Section 304-B IPC. Appellants denied the charges and claimed trial. 4. 3. Having investigated the matter, charge-sheet was submitted against the accused persons for the offence punishable under Section 304-B IPC. After committal of the case, trial court was pleased to frame charges against all the accused persons for the offences punishable under Section 304-B IPC. Appellants denied the charges and claimed trial. 4. To prove the prosecution story, PW1 Tasleem Ahmad (informant), PW2 Sanjeeda Begum, mother of Shahnaz, PW3 Nagma, sister of Shahnaz; PW4 Abdul Rahman, cousin of Shahnaz, PW5 Shahid Ali, cousin of Shahnaz, PW6 Yad Hussain, PW7 Sayyad, PW8 Bundu, PW9 City Magistrate Om Prakash, PW10 Vimal Kumar Agarwal, Additional City Magistrate, PW11 Wahid Hussain, PW 12 Constable Mahesh Chandra were examined and thereafter, statements of accused including the appellants were also recorded under Section 313 Cr.P.C. From the side of defence, father of the appellant DW1 Intezar and DW2 Zahir Hasan were examined. 5. Having perused the entire material made available on record, learned trial court was pleased to acquit the husband Mustakeem, however, convicted & sentenced the appellants vide judgment and order under appeal. 6. I have heard Mrs. Pushpa Joshi, Sr. Advocate with Mr. Saurav Adhikari, Advocate for the appellants, Mr. S.K. Chaudhary, Additional GA for the State and have carefully perused the record. 7. Let me mention very important fact, i.e., husband Mustakeen was acquitted while appellants family members and relatives of the husband were convicted. While dealing with case of demand of dowry or dowry death, Court should not forget that tendency of people to rope in all the family members and relatives of husband cannot be ruled out completely. 8. There is no doubt about the fact that Shahnaz was taken to Roorkee Hospital on 09.12.2008 having received burn injuries, while under treatment at Meerut, septic developed in her body and ultimately, she expired on 23.12.2008. 9. PW1, PW2, PW3, PW4, PW5, PW6, PW7, PW8 and PW11 did not support the prosecution story. All of them in the same voice stated that Shahnaz caught fire while boiling the milk on stove. All of them further stated that Shahnaz was, first of all, taken to Roorkee Hospital and thereafter, to Meerut Hospital for treatment by her in-laws. None of them stated that Shahnaz was subjected to cruelty or harassment for demand of dowry. 10. All of them in the same voice stated that Shahnaz caught fire while boiling the milk on stove. All of them further stated that Shahnaz was, first of all, taken to Roorkee Hospital and thereafter, to Meerut Hospital for treatment by her in-laws. None of them stated that Shahnaz was subjected to cruelty or harassment for demand of dowry. 10. This Court is conscious about the fact that even if, witness is declared hostile, part of the statement, which inspires confidence can be relied upon by the Court. 11. Hon’ble Apex Court in the case of Bakshish Ram v. State of Punjab reported in 2013 (4) SCC 131 in paragraphs 14 and 19 has held as under: “14. A perusal of Section 304B clearly shows that if a married woman dies otherwise than under normal circumstances within seven years 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 in connection with any demand for dowry, such death shall be called “dowry death” and such husband or relative shall be deemed to have caused the death. The conditions precedent for establishing an offence under this section are: (a) that a married woman had died otherwise than under normal circumstances; (b) such death was within seven years of her marriage; and (c) the prosecution has established that there was cruelty and harassment in connection with demand for dowry soon before her death. This section will apply whenever the occurrence of death is preceded by cruelty or harassment by husband or in-laws for dowry and death occurs in unnatural circumstances. The intention behind the section is to fasten guilt on the husband or in-laws though they did not in fact caused the death. 19. As discussed above, a perusal of Section 113B of the Evidence Act and Section 304B Indian Penal Code shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. In other words, the prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the “death occurring otherwise than in normal circumstances”. The prosecution is obliged to show that soon before the occurrence, there was cruelty or harassment and only in that case presumption operates. In other words, the prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the “death occurring otherwise than in normal circumstances”. The prosecution is obliged to show that soon before the occurrence, there was cruelty or harassment and only in that case presumption operates. As observed earlier, if the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence. In the case on hand, admittedly, the prosecution heavily relied on the only evidence of Sibo (PW-2) - mother of the deceased which, according to us, is a hearsay, in any event, a very general and vague statement which is not sufficient to attract the above provisions. In such circumstances, as argued by the Learned Counsel for the Appellants, accidental death cannot be ruled out.” 12. Therefore, in view of dictum of Hon’ble Apex Court, to bring home the guilt punishable under Section 304-B IPC prosecution must allege and prove that deceased was subjected to cruelty and harassment, soon before her death in connection with demand of dowry; the prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the “death occurring otherwise than in normal circumstances”. As observed hereinbefore, none of the witnesses stated that there was any demand of dowry. It is not mentioned in the FIR too what was the specific demand. On the other hand, all the material witnesses and accused are stating that Shahnaz caught fire by stove burst while boiling the milk. 13. Learned trial court was pleased to convict the appellants on the basis of dying declaration of deceased Shahnaz recorded by Vimal Kumar Agarwal (PW10). A perusal of Exhibit A-9 (Dying Declaration of Shahnaz) recorded by PW10 would reveal that it does not contain any certificate or endorsement of doctor to the effect that at the relevant time, Shahnaz was fit to make statement and was able to understand and reply the questions, being put to her by the Magistrate. Although there is one line on the top of the Dying Declaration to the effect that “in a position to give statement”. However, it does not bear signature of the person, who has allegedly written the same. 14. Although there is one line on the top of the Dying Declaration to the effect that “in a position to give statement”. However, it does not bear signature of the person, who has allegedly written the same. 14. I have carefully perused the statement of PW10 Vimal Kumar Agarwal, who is reported to have recorded the dying declaration. PW10 could not state that under whose order / memo, he went to the hospital to record the dying declaration. On the one hand, he stated that perhaps, he was asked by the ADM or City Magistrate while on the other hand, he stated that perhaps he was requested by the police. Neither such memo nor such order was ever placed on record to say that PW10 was requested to go to hospital to record the dying declaration. Not only this, PW10 did not name the doctor, who has written the sentence on the top of Dying Declaration to the effect “in a position to give statement”. 15. In my considered opinion, such dying declaration does not inspire confidence, it would be risky to place reliance on the statement without there being any endorsement or certificate of doctor that Shahnaz was fit to give statement. Moreover, defence of the accused that Shahnaz caught fire while boiling the milk and she was immediately taken to hospital by them cannot be ruled out completely. 16. As per dictums of Hon’ble Apex Court in the case of Bakshish Ram (supra), in the present case, prosecution was not able to rule out the defence of the appellants that Shahnaz caught fire accidentally while boiling the milk. Moreover, prosecution was not able to prove demand of dowry, therefore, in my opinion, impugned judgment and order does not sustain in the eyes of law. Consequently, both the appeals are allowed. Appellants are acquitted from the charges levelled against them. Appellant Hussain Ahmad is in jail. Let he be released forthwith, if not wanted in any other case. Rest of the appellants are on bail. They need not to surrender before the court below in connection with present case. Their personal bonds are cancelled and sureties are discharged. 17. Let copy of this judgment be also placed in the connected matter. Let a copy of this order be forwarded to the lower court for compliance along with lower court record.