The State Of Maharashtra vs Shaikh Sikandar Isamoddin
2014 Latest Caselaw 163 Bom

                                                         80.1996 Cri.Appeal.odt
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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY 




                                                
                     BENCH AT AURANGABAD


                          CRIMINAL APPEAL NO. 80 OF 1996




                                               
     The State of Maharashtra 
     through Mahadeo Dashrath
     Hande, P.S.I. Kallam                                 .. APPELLANT




                                   
                VERSUS 
                          
     Shaikh Sinkandar Isamoddin,  
                         
     Age 29 Yrs., R/o. Kalpananagar,  
     Kallam, Tq.Kallam, District Osmanabad    .. RESPONDENT

                                              ...
      

              APP for Petitioner - State : Mr. S.G.Karlekar, Adv.
                  Advocate for Respondent : Mr. P.S.Chavan   
   



                                              ...
                                           CORAM : S.S. SHINDE & 
                                                       N.W.SAMBRE, JJ.

RESERVED ON : 17.12.2014

PRONOUNCED ON : 22.12.2014 ...

JUDGMENT (PER S.S. SHINDE,J):-

1) This Appeal is filed by the Appellant - State,

challenging the Judgment and Order of acquittal dated

30.11.1995 passed by the 2nd Additional Sessions Judge,

Osmanabad in Sessions Case No. 74 of 1993, thereby

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acquitting the respondent for the offences punishable under

Section 498-A, 304-B and 306 of the I.P. Code.

2) The case of the prosecution, in brief, is as

under:

(i) The deceased Nasima daughter of complainant

Musa Ibrahim Mulani resident of Barshi, was married with

accused, 8 to 9 years before her death. Two years after the

marriage, accused behaved properly with Nasima. Then he

started asking her to bring money from her father.

Shahajan brother of deceased gave her Rs.1000/-, when she

came with accused to his house, 8 days after giving the

money, father of Nasima received information that, Nasima

got burnt by flickering of stove. Then his elder brother and

son went to Kallam. At that time, his wife was out of

station. There he learnt that Nasima was taken to

Ambejogai Hospital. Then they went to Ambejogai Hospital.

There they saw Nasima in burnt condition. He asked

Nasima about the incident. She told that, she will tell it to

her mother. Then mother of Nasima went to see her.

Nasima told her mother that, her husband assaulted her

80.1996 Cri.Appeal.odt

severely. She was injured, in anger she put kerosene on her

body and then attempted to commit suicide. Immediately

after the incident, Nasima was taken to the Government

Hospital at Kallam. There her statement was recorded by

the Head Constable Kadam. As her condition was critical,

she was shifted to the Government Hospital, Ambejogai.

There her statement was recorded on 13.12.1992 by Head

Constable Gaikwad. Nasima was treated in that Hospital.

She died on 15.12.1992 in Hospital. After her death, her

father Musa filed complaint, Exh.23 with Police. The papers

of investigation were received by P.S.I. Hande on

17.12.1992. On same day, on behalf of State he filed

complaint at Exh. 44. He investigated the offence and after

completion of investigation, he filed charge sheet.

(ii) After appearance of accused before the Trial

Court, charge was framed against accused, at Exh.17, u/s.

498A, 304B, 306 of I.P.C. He pleaded not guilty to the said

charge. During trial prosecution examined in all nine

witnesses. Statement of accused was recorded u/s. 313 of

Cr.P.C.

80.1996 Cri.Appeal.odt

3) The trial Court framed following charge :-

"That, from the date of marriage with deceased

Nasimabee sometime in the year 1986, you accused -

subjected the said Nasimabee cruelty, ill-treatment and

harassment till she committed suicide on 12.12.1992 by

pouring kerosene on her person in your house situated at

Kallam Dist.Osmanabad, in order to extract, gifts and

valuable articles i.e. golden ring, and demand for dowry

from her parents and thereby committed an offence

punishable under section 498-A of the Indian Penal Code

and within my cognizance.

Secondly, on the same date, time and place and

during the course of same transaction you accused being

the husband of deceased Nasimabee who committed suicide

by pouring kerosene on her person in your house situated

at village Kallam which occurred otherwise than normal

circumstances, within the seven years of her marriage and

soon before her death, she was subjected to cruelty, ill-

treatment and harassment by you in connection with

demand for dowry and thereby committed an offence

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punishable under Sec. 304-B of the Indian Penal Code and

within my cognizance.

Thirdly, on the same date time and place, and

during the course of same transaction Nasimabee

committed suicide by pouring kerosene on her person in

your house situated at village Kallam Dist.Osmanabad and

you accused abetted its commission by subjecting her to

cruelty, ill-treatment and harassment and to extract, gifts

and valuable articles from her and from her parents and

thereby committed an offence punishable under section 306

of the Indian Penal Code and with my cognizance."

4) After full-fledged trial, trial Court acquitted the

respondent. Hence this appeal by the State.

5) The learned Additional Public Prosecutor

invited our attention to the evidence of the prosecution

witnesses, two Dying Declarations and other material placed

on record and submits that, the unlawful and illegal

demand by the respondent has been proved through the

prosecution witnesses. There are two Dying Declarations

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which are consistent. Therefore, the Respondent ought to

have been convicted by the trial Court.

6) On the other hand, the learned counsel

appearing for the respondent submitted that, admittedly,

deceased Nasima in her statements at Exh-39 and 33 does

not make any grievance against the accused. In the

statement dated 16.12.1992 at Exh.23, the father of

deceased Nasima also does not make any allegations in

respect of ill-treatment, quarrels, dispute or demands. The

statements cum-dying declarations at Exh.39 and 33 clearly

show that there is no positive act on the part of the accused

to instigate or aid in committing suicide. There is absolutely

no mens rea to commit offence. In the statement dated

16.12.1992 the father of Nasima did not state any earlier

dispute, ill-treatment, quarrels between husband and wife

so also illegal demands by the accused. For the first time,

father and mother of deceased Nasima made complaints

before the Court. It is submitted that, the trial Court after

considering the entire oral as well as documentary evidence

rightly held that in the dying declarations at Exh.33 and 39

it is no where stated by deceased Nasima that before

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12.12.1992 there were quarrels, disputes or illegal demands

by her husband. The prosecution mainly relied on the dying

declarations at Exh.33 and 39 and in both the dying

declarations deceased Nasima does not make any grievance

in respect of earlier dispute or illegal demands by her

husband. It is also submitted that, the trial Court rightly

held that in the statement cum-dying declaration dated

12.12.1992 Exh.39, deceased Nasima stated that in an

anger she poured kerosene on herself and she does not have

any complaint against the accused. Hence, the evidence on

record goes to show that there was no complaint against her

husband on 12.12.1992. Moreover, in the statements

recorded by the Police immediately after the death of

Nasima the father does not complain anything against the

accused. Hence, the statement at Exh.23 dated 16.12.1992

noticed to be in contradiction to the statement before the

court. It is submitted that, from the evidence on record it

cannot be said that the accused intended, instigated or

aided Nasima to commit suicide. The learned counsel

further submitted that, the trial Court has rightly held

that, the evidence of prosecution is doubtful about ill-

treatment, illegal demands, abetment and as such

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weak type of evidence and therefore, the accused

cannot be held guilty for the offence charged.

The learned counsel placed reliance on the

judgments of the Supreme Court in the case of (i) M. Mohan

V/s State1 (ii) Appasaheb V/s State of Maharashtr2.

7) ig We have considered the submissions advanced

by the learned Additional Public Prosecutor and the learned

counsel appearing for the original complainant. With their

able assistance, we have perused the original record and

also other material placed on record.

In order to find out whether the accused

subjected Nasima to cruelty, illtreatment and harassment

till she committed suicide on 12.12.1996, it is necessary to

discuss the evidence of parents, sister and neighbourers of

the deceased Nasima. It appears that, the father of the

deceased namely Musa Ibrahim Mulani on 16.12.1992 in

his statement at Exhibit - 23 stated that, he came to know

that, his daughter Nasimabee poured kerosene on her

1. AIR 2011 SC 1238

2. AIR 2007 SC 763

80.1996 Cri.Appeal.odt

person and set ablaze due to quarrel with husband and she

was hospitalized in S.R.T.R. Hospital, he went to meet her.

When he inquired from Nasimabee, she told him that, she

herself poured kerosene on her person and set herself on

fire. He further stated that, when Nasima was under

treatment, on 15.12.1993 at about 17.15 hours she died. He

stated in the said statement that, he has no complaint

against anybody, and dead body should be given in the

custody of son-in-law, Shaikh Sikandar for cremation. He

was examined before the Court as PW-1, and in his evidence

he stated that, his daughter Nasima got married to accused

before 8 to 9 years back. After marriage, she went to her

matrimonial home. Accused was demanding golden ring and

money to Nasima. After marriage, accused no.1 treated her

well for initial two years and after that, he started his

demands with Nasima. He was asking to bring money. His

Son Shahajan paid Rs. 1,000/- to Nasima when accused

came with her at their place. There are other allegations also

that, in order to pay rent, the daughter asked for money.

When he went to the hospital and asked Nasima how she is

burnt? Nasima told that, now she will not tell about the

incident, but she will tell to her mother.

80.1996 Cri.Appeal.odt

8) PW-2 Noorjahan, the mother of the deceased

stated that, Nasima married 8 to 10 years before her death.

Accused was always beating, quarreling and giving troubles

to Nasima. This started after she has given birth to two

children. He was asking to bring money and one golden

ring. This witness in her cross examination stated that,

Nasima told her that, accused poured kerosene on her body

and set her on fire. The said statement of this witness does

not get any support from the other evidence, which is on

record. On the contrary, the Dying Declarations given by the

deceased unequivocally indicate that, she herself poured

kerosene on her person and set herself on fire.

9) There is evidence of Shahajan at Exhibit -25,

the sister of the deceased who was examined as PW-3. More

or less, the contention about the illtreatment and demand

are as stated by the PW-1 and PW-2. PW-4- Malati

Deshpande was examined in order to prove that, there was

some harassment by the accused to the deceased to some

extent. PW-5 -Rasulbee Pathan was examined, however in

his examination in chief she stated that, it did not happen

80.1996 Cri.Appeal.odt

Nasima told him that, her husband asked her to bring

money from her parents and for that he illtreate her, and

beat her. PW-6 Shakilabee was examined as a witness and

she stated in her evidence that, the relations between

accused and Nasima were good. However, she was declared

hostile. In her cross-examination she stated that, it is not

true that, there were always quarrels between Nasima and

her husband. There were domestic disputes between them

and not quarrel and beating. She specifically stated in her

cross-examination that, when Nasima came in burning

condition in courtyard, she herself, her husband, her son

and accused extinguished fire. Both hands of the accused

were burnt and her left hand fingers were also burnt. At the

relevant time, when the incident had taken place, the

accused and Nasima were living as tenant in the house of

PW-6, and therefore, the evidence of PW-6 assumes

importance. She has not supported the prosecution case

that, there were always quarrels between Nasima and her

husband.

10) There are two Dying Declarations of Nasima,

which are at Exhibit - 33 and Exhibit - 39. Dying

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Declaration at Exhibit - 33 is recorded on 13.12.1992. In

the said Dying Declaration she stated that, there was

quarrel between husband and herself at about 10 p.m. on

the ground that, why she is not talking with sister of the

accused. She stated that, husband slapped and beat her.

However, in said Dying Declaration, it is not stated by

Nasima that, the contents of the said Dying Declaration

were read over to her and the said are as per her narration.

If the contents of the dying declaration are not read over to

the declarant and to that effect, there is no mention in the

Dying declaration, the said dying declaration cannot be read

in the evidence. The Supreme Court in the case of Shaikh

Bakshu and ors V/s State of Maharashtra 3 in para 8 held

thus:-

"There as no mention in the dying declaration that, it was

read over and explained to the deceased. The Trial court and

the High Court concluded that even though it is not so

stated, it has to be presumed that it was read over and

explained. The view is clearly unacceptable."

In that view of the matter, the Dying Declaration

3. 2007(11) scc 269

80.1996 Cri.Appeal.odt

which has been recorded at Exhibit - 33 did not find

mention that, the contents of the said Dying Declaration are

read over to declarant and same are as per her narration,

therefore, we discard the same.

11. Another Dying Declaration is at Exhibit - 39,

which is recorded on 12.12.1992. In the said Dying

Declaration Nasima stated that, there are two children. She

is residing in Kalpananagar, Kallam. She herself poured

kerosene on her person and set herself on fire, since she got

angry when the husband quarreled with her saying that,

why she is not talking with his sister. When she poured

kerosene on her person, she was alone. The husband tried

to extinguish the fire. Nobody set her on fire. In an anger

she herself set her on fire. The said statement is as per her

narration and same is correct.

12. PW-8 Dattu Maruti Kadam was examined as

witness at Exhibit - 38. In his evidence, he stated that, he

recorded the Dying Declaration in presence of Dr. Dikale.

Nasima was in position to speak. He wrote down the

contents of the declaration as per her say. He took thumb

80.1996 Cri.Appeal.odt

impression of Nasima on the Dying Declaration. Dr. Dikale

is not examined by the prosecution so as to prove the Dying

Declaration at Exhibit - 39. It appears that, PW-7-Bhagwat

Manik was examined to prove the Dying Declaration at

Exhibit - 33, however, Dr. Dikale was not examined to prove

Dying Declaration at Exhibit - 39.

13.

The evidence of PW-1 to PW-4 is required to be

considered to find out whether the ingredients of Section

498A are met or otherwise. The provisions of Section 498A

reads thus :-

"498A. Husband or relative of husband of a woman subjecting her to cruelty

Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation- For the purpose of this section, "cruelty" means-

(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such

80.1996 Cri.Appeal.odt

demand.]"

14. If the prosecution case is considered in the light

of Explanation (a) and (b) in the light of the evidence of

prosecution witnesses, it is not possible to conclude that,

the accused had intention that, Nasima should commit

suicide. The evidence lead by the prosecution is not

sufficient to hold that, the conduct of the accused before the

incident was willful conduct of such a nature which driven

the deceased to commit suicide.

15. If the evidence of the prosecution witnesses is

perused, they stated that, there was demand of golden ring

and money, however, none of the witnesses has quoted the

specific instances and to that effect there is no satisfactory

and sufficient evidence brought on record by the

prosecution so as to conclude that, there was illegal or

unlawful demand by the accused. An immediate conduct of

the accused soon before the commission of suicide by

Nasima was that, he picked up quarrel with Nasima on the

ground that, Nasima was not on talking terms with sister of

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the accused. If the contents of the Dying Declaration at

Exhibit - 39 are carefully perused, in fact, there are no

allegations that, the husband assaulted Nasima though it is

stated that, there was quarrel between the husband and

Nasima. Therefore, the prosecution has not proved beyond

reasonable doubt that, there was willful conduct of the

accused which was of such a nature and because of that,

Nasima committed suicide. If the Explanation (b) under

Section 498-A is considered, the harassment of the woman

by the husband or relative should be of such a nature

coercing woman or any person related to her to meet any

unlawful demand for any property or valuable security or is

on account of failure by her or any person related to her to

meet such demand. In the present case, in first place it

cannot be said that, there was harassment of such a nature

coercing Nasima to meet any unlawful demand. The

prosecution has not proved beyond reasonable doubt that,

there was any unlawful demand for any property or valuable

security. Therefore, the prosecution has not proved beyond

reasonable doubt that, the accused has committed offence

punishable under Section 498A of I.P. Code. As already

observed, there was no intention on the part of the accused

80.1996 Cri.Appeal.odt

that, Nasima should commit suicide by setting herself on

fire. There was no positive act or abetment on the part of the

accused with an intention that, Nasima should commit

suicide. It has come in the evidence of the prosecution

witnesses that, marriage of Nasima with accused was

performed 8 to 10 years prior to the date of incident.

Therefore, the presumption under section 113-A of the

Evidence Act is not available in the facts of the present case.

The prosecution has not shown that, soon before the death

of Nasima she was subjected by accused to cruelty or

harassment for or in connection with, any demand for

dowry. Therefore, the alleged offence under Section 304-B of

I.P. Code is also not proved by the prosecution.

16. The trial Court has considered the evidence of

PW-1 to PW-6 about the alleged illtreatment and demand

and found that, the said evidence is not sufficient so as to

convict the accused for an offence punishable under Section

498-A of I.P. Code. The trial Court has also taken a note of

fact that, there is no reference to illegal demand in both the

Dying Declarations. The incident had taken place on

12.12.1992, however, the P.S.I. Hande in his evidence

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stated that, he started investigation from 17.12.1992

onwards. The trial Court has also taken a note of fact that,

though the statements of father and mother was recorded

by the Police, but inspite of death of Nasima, they did not

complaint against the accused in his statement. The trial

Court has also drawn inference that, due to poverty there

may be domestic disputes, quarrels between Nasima and

her husband, and Nasima herself may be telling it to her

father and mother and brother also. However, the same is

not sufficient so as to fulfill the ingredients of Section 498A,

304-B and 306 of I.P. Code.

17. Upon reappreciating the entire evidence on

record, we find that, the findings recorded by the trial Court

are not perverse. The view taken by the trial Court is

possible. The Supreme Court in the case of Nepal Singh

V/s State of Haryana in Criminal Appeal No. 383 of

2002 decided on 24.04.2009 held that, in case of

acquittal, there is a double presumption in favour of

the accused- firstly, the presumption of innocence is

available to him-secondly, the accused having secured

80.1996 Cri.Appeal.odt

an acquittal, the presumption of his innocence is

certainly not weakened but reinforced, reaffirmed and

strengthened by the trial court.

Yet in another judgment in the case of State

of A.P. V/s M. Madhusudhan Rao4 the Supreme Court

in para 13 held thus :-

"13.

igThere is no embargo on the appellate court to review,

reappreciate or reconsider the evidence upon which the order

of acquittal is founded. Yet, generally, the order of acquittal

is not interfered with because the presumption of innocence,

which is otherwise available to an accused under the

fundamental principles of criminal jurisprudence that every

person shall be presumed to be innocent unless he is proved

guilty by a court of law, gets further reinforced and

strengthened by his acquittal. It is also trite that if two views

are possible on the evidence adduced in the case and the one

favourable to the accused has been taken by the trial court,

it should not be disturbed. Nevertheless, where the approach

of the lower court in considering the evidence in the case is

vitiated by some manifest illegality or the conclusion

recorded by the court below is such which could not have

been possibly arrived at by any court acting reasonably and

judiciously and is, therefore, liable to be characterised as

4.2009 All MR(Cri) 547 (S.C.)

80.1996 Cri.Appeal.odt

perverse, then, to prevent miscarriage of justice, the appellate

court is obliged to interfere."

18. In that view of the matter, in our considered

view, the impugned judgment and order needs no

interference. Hence appeal stands dismissed.

              Sd/-  ig                                      Sd/-     

     ( N.W.SAMBRE, J. )                             ( S.S. SHINDE, J. )
                  
     sga/-