Syed Noor And Ors vs State Of Maharashtra
2016 Latest Caselaw 2127 Bom

                                                     Criminal Appeal No.136/2003
                                          :: 1 ::




                                                                            
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                                   BENCH AT AURANGABAD




                                                    
                            CRIMINAL APPEAL NO.136 OF 2003




                                                   
     1.       Syed Noor s/o Syed Ibrahim




                                         
              Age 30 years, Occ. Labour work,
              R/o Itwara by the side of
                             
              Bakra Market, Nanded
                            
     2.       Smt. Chotibee w/o Syed Ibrahim,
              Age 50 years, Occ. Household,
              R/o Itwara by the side of
              Bakra Market, Nanded             ...   APPELLANTS
                                         (Original Accused No.1 & 2)
      
   



              VERSUS


     The State of Maharashtra





     through Itwara Police Station,
     Nanded
     (Copy to be served on
     Public Prosecutor, High Court,
     Bench at Aurangabad)                           ...      RESPONDENT





                       .....
     Mrs. A.N. Ansari, Advocate for appellants
     Shri A.M. Phule, A.P.P. for respondent/ State
                       .....




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                                                           Criminal Appeal No.136/2003
                                            :: 2 ::




                                                                                 
                                    CORAM:          A.I.S. CHEEMA, J.




                                                         
                                    DATED:          2nd May, 2016.

     Date of reserving judgment : 13th April 2016
     Date of pronouncing judgment : 2nd May, 2016.




                                                        
     JUDGMENT:

1.

The appellants were accused No.1 and 2 in Sessions

Case No.117/2001 tried before Additional Sessions Judge,

Nanded. The appellant No.1 is son of the appellant No.2. Along

with them, accused No.3 Afsanabee (the daughter of appellant

No.2) and accused No.4 Sayyed Jainoddin (the son-in-law of

appellant No.2) as well as accused accused No.5 Sayyed Gaus,

(the other son of appellant No.2) were also tried for offence

under Section 498-A, 306 read with Section 34 of the Indian

Penal Code, 1860 (I.P.C. in brief). The other accused came to be

acquitted while the present appellants were convicted by the

Additional Sessions Judge by judgment dated 29.1.2003. Thus

this appeal.

2. Case of the prosecution in short is as follows :

Criminal Appeal No.136/2003 :: 3 ::

On 29.3.2001, complainant Shaikh Zainuddin (P.W.1)

filed F.I.R. Exh.18 at Police Station, Itwara, Nanded and Crime

No.66/2001 was registered. The complainant informed the police

as under :

(a) The complainant informed that his sister

Shahedabegum (hereinafter referred as victim)got married to the

accused No.1 Sayyed Noor on 25.5.2000. She was treated well

for about 3 months. Thereafter, for money and T.V., there were

demands and she was being brought to the place of her parents

at Kalmula, Tq. Purna, District Parbhani. Accused Nos.3 and 4

used to come and say that she will not be troubled and took her

back to the matrimonial home 2-3 times, but her trouble did not

reduce. Complainant reported that, whenever victim was coming

to their place, she was stating that accused No.2 Chhotibee and

accused No.4 Sayyed Jainoddin tell her that she is at fault by not

waking up early and that she does not how to cook. She was

given mental torture like this. Accused No.2 Chhotibee and

accused No.1 Sayyed Noor used to beat her for petty reasons.

On 26.3.2001, his father Shaikh Afzal (P.W.2) had gone to the

matrimonial home of victim to bring her for the festival of

Moharram, but accused No.3 Chhotibee did not send her stating

Criminal Appeal No.136/2003 :: 4 ::

that there was nobody to do work at home. Victim had cried and

told her father that she is unable to bear the trouble and beating

and she wants to come to the place of her parents. The father

explained to her and came back. On 27.3.2001, complainant

came to know from accused No.5 Sayyed Gaus by phone at

about 2.00 p.m. that, the victim had stomach ache and that she

had been taken to Government Hospital, Nanded. Complainant

went there and saw that she was in burnt condition. He went

back to his village and told his father and they with 5-6 persons

came to the hospital. The victim was in unconscious condition at

that time. At about 9.00 p.m., she gained back her

consciousness and when asked about the incident, told that, on

earlier day, father had come to take her and thereafter her

mother-in-law and husband started telling her that she keeps

feeling like going to her parent's place all the time and so saying,

she was beaten, which she could not bear and getting fed up of

the trouble, she burnt herself.

(b) Before filing of the F.I.R. as above on 29.3.2001,

when the victim was admitted to the Government Hospital,

Nanded on 27.3.2001, on the request of one Head Constable

Dhulgande, Special Judicial Magistrate Narayan Balatkar (P.W.4)

Criminal Appeal No.136/2003 :: 5 ::

had gone to the hospital at about 11.45 p.m. and recorded the

dying declaration Exh.26 of the victim, in which she had stated

that on that day at about 11.30 a.m., her husband and mother-

in-law started speaking ill with her and also abused her sister

Saudir, which she could not bear and she put kerosene on herself

and burnt herself. She claimed that, her mother-in-law and

husband accused Nos.2 and 1 do not look at her well and so, she

burnt herself.

P.W.4 Special Judicial Magistrate, on recording

such dying declaration, had sealed it in envelope Exh.27 with

covering letter Exh.25 on same day and sent it to the Chief

Judicial Magistrate

(c) Victim was under treatment and died on 7.4.2001. The

inquest panchanama was drawn and post mortem done.

Statements of witnesses were recorded and the investigation was

done by P.W.7 P.I. Nivrutti. Subsequently, charge sheet came to

be filed.

(d) Charge was framed against the accused person. They

pleaded not guilty. Their defence is of denial. In the statements

under Section 313 of the Code of Criminal Procedure, read with

cross-examination of prosecution witnesses, defence suggested

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was that, P.W.2 Shaikh Afzal, father of victim wanted her and her

husband to reside separate and thus, had promoted her to burn

herself slightly so that the accused could be pressurized to

separate them.

3. The prosecution brought on record evidence of seven

witnesses. The trial Court discussed the evidence which was

brought on record and for reasons recorded, found the offence

proved and convicted the accused Nos.1 and 2 (appellants). The

appellant No.1 has been convicted and sentenced to suffer

rigorous imprisonment for three years under Section 498-A of the

Indian Penal Code and rigorous imprisonment for five years

under Section 306 of the Indian Penal Code. Accused No.2 has

been convicted and sentenced to suffer rigorous imprisonment

for three years. They have been sentenced to different amounts

of fine and sentence in default have also been passed. The other

three accused came to be acquitted.

4. I have heard learned counsel for the appellants -

accused. The appellants claim that, no case of demand was

made out in evidence. There was no satisfactory evidence

regarding ill-treatment being given to the victim. In the dying

Criminal Appeal No.136/2003 :: 7 ::

declaration, the victim did not claim that any articles were

demanded and for that, she was ill-treated. In the dying

declaration, reference is made to the presence of sister by the

victim referring to her as Saudir although name of her sister is

Shamim. The learned counsel referred to the evidence of

investigating officer to show that there was yet another

statement recorded of the victim by Head Constable Dhulgande,

which was not brought before the Court and the investigating

officer stated that, in the statement, victim had stated that she

got burnt while making tea. Thus, according to the learned

counsel, the prosecution has failed to establish the case and

accused should have been acquitted.

5. Against this, learned A.P.P. has taken me through the

judgment of the trial Court and the other evidence of the trial

Court to show that the offence was clearly established and there

was sufficient evidence. According to the learned A.P.P.,

Shamim, the sister of victim, was mentally ill is clear from the

cross-examination of the investigating officer. As such, the

prosecution could not examine her. A.P.P. supported the

judgment of the trial Court. He prayed that the appeal should be

dismissed.

Criminal Appeal No.136/2003 :: 8 ::

6. On record, there is firstly evidence of P.W.1

Zainuddin, brother of the victim. His evidence shows that

marriage had taken place on 25.5.2000. The victim died in 2001

and thus, it is within seven years. There is no dispute regarding

the fact that the incident of burning of the victim took place while

she was in custody and at the house of accused Nos.1 and 2.

There is evidence on record to show that accused No.3 Afsanbi

and accused No.4 Syed Zainuddin, the sister and brother-in-law

of accused No.1 were residing separate. in fact, the evidence

shows that, at times they had gone to the place of P.W.1

Zainuddin and his father P.W.2 Shaikh Afzal and brought back

the victim and had made efforts to see that the victim is not ill-

treated. These two accused have rightly been acquitted by the

trial Court. As regards accused No.5 Syed Gaus, there was

hardly or no evidence of his involvement in the crime and he has

also been rightly acquitted. However, regarding the appellants,

the original accused Nos.1 and 2, there does appear to be

evidence on record.

7. The evidence of P.W.1 Shaikh Zainuddin is that, after

initial period of proper treatment, the victim was ill-treated as

Criminal Appeal No.136/2003 :: 9 ::

there was insistence to bring money, almirah and TV from her

parents. P.W.1 says that, the victim had told them about this.

According to P.W.1, at the time of Moharram, P.W.2 Shaikh Afzal

had gone to bring the victim, but came back without her as it

was told that the accused No.2 did not let the victim come

claiming that there is nobody to do household work. In a new

marriage, which was not even one year old, this can be treated

as cruelty.

8. P.W.2 Shaikh Afzal has also deposed about the

treatment which the victim received. His evidence shows that,

accused No.1 and accused No.2 along with accused No.4 used to

tell the victim that she does not wake up early and does not cook

properly. According to P.W.2, the victim was being told that her

father did not give TV, almirah etc. in the marriage. He deposed

that, the victim was telling this to him when she used to come to

his place. According to him, he had persuaded accused No.2 not

to quarrel, but accused No.2 used to give abuses to the victim

and the accused used to reach the victim to his house. He says

that, he made several efforts to make accused No.2 understand,

but she did not listen and ultimately he had to say that in such

case, there should be divorce. Thereafter, however, the accused

Criminal Appeal No.136/2003 :: 10 ::

assured good treatment for his daughter and leaving her at the

place of accused, he had returned. P.W.2 has deposed that,

after 15-20 days, when he again visited the victim, he found that

she was being ill-treated and brought her back. Thereafter, on

the assurance of accused Nos.3 and 4 she was sent. The

evidence shows that, after one and half month, P.W.2 went and

saw that there was some change, but the daughter was still

being troubled by accused Nos.1 and 2 only. His evidence is

that, he had again gone at the time of Moharram to bring the

victim, but accused No.2 did not let the victim come claiming

that there was nobody to do household work. The evidence of

P.W.2 is that, as per their religion, for first Moharram, daughter

is to be taken to the place of parents, but the victim was not

allowed to come.

. It is argued, evidence shows that, accused already

had a T.V. and there was no need to ask for T.V. P.W.1, when

asked, stated and explained that accused had Black & White T.V.

and wanted Colour T.V. This came on record due to the cross-

examination and cannot be treated as improvement.

9. The evidence shows that, after P.W.2 Shaikh Afzal

Criminal Appeal No.136/2003 :: 11 ::

came back, on next day, the incident of victim burning herself

took place. The evidence of P.W.1 and P.W.2 shows that, at

about 2.00 p.m., P.W.1 came to know from accused No.5 about

the victim being admitted to hospital and he had gone to the

hospital and saw that she had got burnt. He went back to village

Kalmula and came back with his father P.W.2 and other villagers.

When they came to the hospital, at that time, the victim was not

conscious and the other villagers went back. It appears, the

villagers included P.W.5 Gangadhar and P.W.6 Shankarrao also.

P.W.3 Sk. Farooq also had gone to the hospital. These people

appear to have come back without being able to talk to the

victim. P.W.6 Shankarrao has further corroborated P.W.1 and

P.W.2 regarding the earlier fact that the victim, when she was

coming to Kalmula, was speaking about her ill-treatment. P.W.6

claimed that he had made the victim understand that things will

get set right and to keep hope.

10. The evidence of P.W.1 Shaikh Zainuddin shows that,

on 27.3.2001 in the evening, the victim became conscious and

when he asked her, she told him that accused Nos.1 and 2 had

abused her and beaten her and due to such ill-treatment, she

poured kerosene on herself and set herself ablaze. In his F.I.R.

Criminal Appeal No.136/2003 :: 12 ::

also he had reported that the victim told him that she had been

beaten by accused Nos.1 and 2 and so she had burnt herself.

Then there is evidence of P.W.2 and he has stated that victim

was in a position to talk at 9.00 - 9.30 p.m. and she told that,

after he had returned, she was abused and beaten and could not

bear it and so she poured kerosene on herself and burnt herself.

Thus, these are the oral dying declarations.

11. Then there is evidence of the written dying

declarations given by the victim to P.W.4 Narayan Balatkar,

Special Judicial Magistrate. His evidence shows that, he received

letter on 27.3.2001 at about 11.30 p.m. from police. He went to

the Ward at 11.45 p.m. and the victim was shown by the Medical

Officer. He recorded her dying declaration. His evidence is that,

he ensured that the persons who were attending the patient were

made to go outside the hall and near the patient there was only

the Special Judicial Magistrate and the Medical Officer. His

evidence gives details as to the questions he asked the victim

and the answers she gave. The dying declaration is at Exh.26.

After the introductory questions, with regard to the incident the

victim told the Special Judicial Magistrate that on that day of

27.3.2001, at about 11.30 a.m., her husband and mother-in-law

Criminal Appeal No.136/2003 :: 13 ::

started speaking ill with her. Her sister Saudir had come and

even she was abused. Victim stated that, she could not bear all

this and she put kerosene oil on herself and burnt herself. Her

mother-in-law and husband do not look upon her well and thus,

she has burnt herself. She stated that, the name of her mother-

in-law is Chhotibi (accused No.2). The dying declaration shows

endorsement of the doctor in the beginning to the effect that -

patient is conscious and in fit state of mind to give statement.

The time put by the doctor was 00.15 Hrs. of 28.3.2001. The

same doctor at the end of the statement also endorsed that

patient was conscious throughout the statement and put date

28.3.2001 with time as 00.45 Hrs. Evidence of Special Judicial

Magistrate (P.W.4) gives details of the questions he asked and

answers which were received as seen in the dying declaration.

The witness further stated that, after recording the dying

declaration, he checked from the victim and she stated that, it

was correctly recorded. According to him, he had read over the

statement to her and in response, the victim had stated that it

was correct. His evidence is that, he had then taken her right

hand thumb impression on the dying declaration and attested the

same. The witness has deposed about he taking the

endorsement of the medical officer in the beginning and at the

Criminal Appeal No.136/2003 :: 14 ::

end of the statement as can be seen in the dying declaration.

The witness repeated that, at the time of recording of the dying

declaration none of the relatives was there and only medical

officer was with them. He deposed that, when the statement

was recorded, the patient was fully conscious. His evidence

further is that, he sent the original dying declaration to Chief

Judicial Magistrate, Nanded under envelope and covering letter.

The covering letter has been proved as Exhibit 25 and the

envelope which was opened in the Court, has been proved at

Exhibit 27.

12. Trial Court accepted the above evidence of the

witnesses regarding ill-treatment and cruelty as well as the oral

dying declarations. The learned counsel for the accused, at the

time of arguments, has referred to the cross-examination of

P.W.1 and P.W.2 to say that, there were contradictions and

omissions. I have considered the evidence of P.W.1 Shaikh

Zainuddin along with his F.I.R. which was filed. There does not

appear to be any material contradictions or omissions. In the

cross-examination of the complainant, he was asked as to why

allegations of ill-treatment were not made against the father of

the accused No.1. The question was surprising. The witness,

Criminal Appeal No.136/2003 :: 15 ::

however, gave the right answer that as there was no ill-

treatment at the hands of the father of the accused No.1, his

name was not reported. In fact, this shows fair approach of the

complainant. It was suggested to the complainant that, after

death of the victim, they had demanded money from the accused

persons, but as the same was refused, false report was lodged by

them. The witness denied the suggestion. The cross-examiner

lost sight of the fact that the F.I.R. Exh.18 was registered on

29.3.2001 itself while the victim expired on 7.4.2001, which was

subsequent to the filing of F.I.R. and thus, there is no question

that as money was not paid, capital of death was being made. It

was suggested to P.W.1 and P.W.2 that, earlier P.W.2 had filed

complaint against one Shaikh Kamal Shaikh Chand, alleging rape

of Shamim, the sister of victim. This was suggested to claim that

these witnesses are used to filing false cases. Filing of case is

not disputed. However, the matter was pending as is stated by

P.W.2. Merely by pointing out such one instance, I am not

convinced that it shows a particular modus operandi of P.W.1 and

P.W.2. I am also not convinced that a father would file a false

case rape of his own daughter. Mere pendency of such case

would not be reason to draw any such inferences as the accused

are trying to suggest.

Criminal Appeal No.136/2003 :: 16 ::

13. In the cross-examination of the complainant also,

various suggestions were made to say that there were

contradictions and omissions with statement to police. However,

the investigating officer P.W.7 Nivrutti were not put up those

alleged contradictions or omissions. He was only asked whether

the complainant has stated in his statement that his elder

daughter Shamim was at the house of accused No.1 when he had

gone to bring the victim for Moharram. The investigating officer

stated that, such statement was not made. Thus, for other part

of the evidence of P.W.2, it cannot be said that any contradiction

or omission had been proved.

14. As regards the dying declaration recorded by Special

Judicial Magistrate, the cross-examination did not bring on record

anything to shake the veracity of this P.W.4. The confusion of

the name of sister referred as Saudir (and not Shamim) can be

clerical mistake by P.W.4 Narayan who may not be that familiar

with Muslim names.

At the fag end of the trial, in cross-examination of the

investigating officer, the cross-examiner asked the investigating

Criminal Appeal No.136/2003 :: 17 ::

officer and he stated that, statement of the injured was received

by him, but was not filed with the charge sheet. Thereafter,

investigating officer was asked regarding the contents of the said

statement. He stated that, it was written in the statement that

the victim burnt while preparing tea. The learned counsel for the

accused is trying to make capital out of this, stating that the

statement of the injured has been suppressed, which was

recorded by Head Constable Dhulgunde. The trial Court, in para

14 of the judgment, dealt with this aspect and observed that, the

other evidence on record regarding the dying declaration

recorded by the Special Judicial Magistrate was a voluntary and

truthful version of the victim and in the absence of Head

Constable Dhulgande being examined and the statement being

produced, the evidence of investigating officer on this count was

of no use.

15. I have also carefully gone through the evidence of

P.W.1, P.W.2 and the Special Judicial Magistrate as well as the

dying declaration. The evidence regarding cause of death stated

by these witnesses does inspire confidence. Prosecution brought

on record acceptable evidence to prove guilt. Then, in fact,

under Section106 of the Indian Evidence Act, there was burden

Criminal Appeal No.136/2003 :: 18 ::

even on the accused persons to bring on record as to how the

victim got burnt. The victim was in their custody and in their

house when the incident took place. One day earlier, accused

No.2 had refused to let the victim go with her father for

Moharram. What happened in their house was specifically in the

knowledge of accused Nos.1 and 2. The defence put up in the

cross-examination of P.W.1 and P.W.2 has no substance, and in

statement under Section 313 of the Code of Criminal Procedure,

these accused have preferred to keep quiet regarding what

happened in their house.

16. A fleeting admission at the end of the trial by

investigating officer regarding contents of a document which was

not before the Court and which was in his custody, is suspect.

Under Section 64 of the Indian Evidence Act, 1872, documents

must be proved by primary evidence except in cases mentioned

in Section 65. If the accused persons wanted to discharge the

burden which Section 106 of the Indian Evidence Act put on

them, they could have asked for the production of the statement.

I do not think that a witness can be asked regarding contents of

a document which he can produce but has not produced, without

getting the document produced and without putting up the

Criminal Appeal No.136/2003 :: 19 ::

document to the witness. There is no separate law of evidence

for the accused persons. Thus, according to me, the only

admissible portion from the evidence of P.W.7 was that

statement of injured was received by him. Without getting the

statement on record, question regarding contents of the

statement was inadmissible and needs to be ignored.

17.

Another aspect which needs to be kept in view in this

context is that, there is evidence of P.W.1 Shaikh Zainuddin

showing that when he came to know about the incident, he had

gone to the hospital and saw his sister in burnt condition and at

the hospital at that time accused Nos.1 to 5 were present. He

has deposed that, he thereafter went back to his village and with

his father and other villagers had come back to the hospital.

Even P.W.2 Shaikh Afzal has deposed that, after they visited the

hospital, the accused persons left the hospital and did not even

attend the funeral.

18. Thus, till P.Ws.1 and 2 reached, the victim was with

the accused persons. It was possible for them to influence what

the hapless victim should say. It appears that, Head Constable

Dhulgunde had, before registration of the F.I.R., done spot

Criminal Appeal No.136/2003 :: 20 ::

panchanama Exh.19. He even got the Special Judicial Magistrate

come and record the dying declaration. Thus, even if he had

recorded any statement of the victim, earlier contents of the

same could not have been deposed to by the investigating officer

P.W.7 Nivrutti without the document being before the Court. The

Evidence Act cannot be ignored and doubt cannot be raised for

the sake of raising doubt. I thus concur with the trial Court to

accept the evidence on record for holding the accused guilty.

19. Having gone through the material available, the

arguments raised for the accused are rejected. There is no

substance in the appeal. The appeal is dismissed. The accused

shall surrender to their bail bonds before trial Court on 9th May

2016. Trial Court shall ensure execution of the sentence.

(A.I.S. CHEEMA, J.)