The State Of Maharashtra vs Fatima Mahamad Shaikh And Ors
2021 Latest Caselaw 1213 Bom

                                         13-apeal-1155-2012.doc.



         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               CRIMINAL APPELLATE JURISDICTION

                  CRIMINAL APPEAL NO. 1155 OF 2002
The State of Maharashtra                            ...Appellant
                                              (Orig. Complainant)
         Versus

1. Fatima Mahamad Shaikh,
   Age 49 years, Occupation Household,
   R/o. Pulachi Shiroli,
   Tal. Hatkanangale,
   Dist. Kolhapur.

2. Iqbal Mahamad Shaikh,
   Age 27 years, Occupation Service,
   R/o. Pulachi Shiroli,
   Tal. Hatkanangale,
   Dist. Kolhapur.

3. Rafiq Mahamad Shaikh,
   Age 30 years, Occupation Rickshaw driver,
   R/o. Pulachi Shiroli,
   Tal. Hatkanangale,
   Dist. Kolhapur.

4. Son. Nilofar alias Radhika Rafiq Shaikh,
   Age 21 years, Occupation Household,
   R/o. Pulachi Shiroli,
   Tal. Hatkanangale,
   Dist. Kolhapur                                     ...Respondents
                                                     (Orig. Accused )
                            ......
Mr.V.B.Konde-Deshmukh,APP for the Appellant-State.
Mr.S.D.Thokade for the Respondents.
                            ......

                    CORAM           :   PRASANNA.B.VARALE &
                                        V.G. BISHT, JJ.

                    RESERVED ON  :       15TH DECEMBER, 2020
                    PRONOUNCED ON:       19TH JANUARY, 2021



Trupti                                                             1
                                             13-apeal-1155-2012.doc.

JUDGMENT (PER: V.G.BISHT, J.)

1. This appeal is filed by the State challenging the judgment and

order of acquittal dated 20 th April, 2002 passed in Sessions Case

No. 115 of 2000 by learned 5th Additional Sessions Judge, Kolhapur

for the offences punishable under Sections 498-A, 304 (b) read with

34 of the Indian Penal Code, 1860 (for short "IPC").

2. The occurrence that led to launching of prosecution is that,

Yasmin Iqbal Shaikh (since deceased), daughter of informant, was

married to accused Iqbal Mahamad Shaikh (A-2) in October, 1999.

After the marriage, the deceased started residing with her husband

and the family members viz. accused Fatima Mahamad Shaikh,

mother-in-law (A-1), Rafiq Mahamad Shaikh, brother-in-law (A-3)

and Nilofar alias Radhika Rafiq Shaikh, wife of A-3(A-4).

(a) The prosecution alleges that the deceased was treated well

for some days. Since last four to five months prior to the incident

started harassing her and demanded gas, stove, TV, steel cupboard

and gold ornaments. All these facts were told by deceased to her

mother. Even they gave their own gas cylinder, gas, stove and

regulator but despite that harassment continued.

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(b) On 7th April, 2000 as there was festival of "Urs" the informant

invited all the accused to his residence. However, A-2 and

deceased only visited his house. A-2 after dropping the deceased

went away without having a word with the family members. When

informant's wife confronted deceased as to conduct of A-2, the

deceased started crying and revealed that all the accused are

harassing her and used to beat on the ground of non-fulfillment of

demand of TV, safe and gold ornaments. All these facts were told to

informant by his wife.

(c) According to prosecution, on 13th April, 2000, the informant

received a message of admission of the deceased in CPR Hospital,

soliciting his immediate presence over there. Informant's wife and

daughter Farzana rushed to the hospital and found deceased in a

totally burnt condition.

(d) When the informant's wife enquired as to how she was burnt,

deceased told that since she was fed up with the harassment in

connection with the demands of gold ornaments, safe and TV from

the side of accused, she got herself burnt. By the time informant

reached, the deceased succumbed to the injuries.

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3. Informant accordingly lodged the report with Shiroli MIDC

Police Station, Kolhapur on the basis of which Crime No. 47 of 2000

for the offences punishable under Sections 498-A and 304B read

with 34 of IPC came to be registered against all the accused.

4. It appears from the record that PW-7 Bhagwant R. Patil, PSI

visited the place of occurrence and prepared spot panchnama (Exh.

22). He also recorded the complaint of informant. During the course

of investigation, he recorded the statements of prosecution

witnesses, seized muddemal articles and forwarded the same to the

Forensic Science Laboratory. After receiving Chemical Analyzer's

report and completion of investigation, he forwarded the

chargesheet against the accused.

5. The prosecution in order to prove its case has examined as

many as seven witnesses and exhibited number of documents. The

respondents-accused were questioned under Section 313 of the

Code of Criminal Procedure, 1973 (for short "the Cr.PC") about the

incriminating evidence and circumstances and they denied all of

them as false. According to them, they have been falsely

implicated.

6. Mr. Konde-Deshmukh, learned APP for the appellant -State,

assailing the impugned judgment and order of acquittal submitted

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that the evidence of parents on the point of cruelty and demand has

been totally overlooked by the learned trial Judge. It ought to have

been considered in proper perspective. According to him, the

prosecution has adduced sufficient evidence on record to prove

cruelty at the hands of respondents-accused on the ground of

demand of various articles. In short, the evidence on record is

sufficient to connect the accused to the alleged offences and in such

circumstances, the present appeal deserves to be allowed, argued

learned APP.

7. Heard Mr. Thokade, learned Counsel for the respondents-

accused.

8. The death of deceased in question is not disputed. The

post-mortem report (Exh. 26) is duly admitted in evidence by the

defence during the course of trial. The opinion as to the cause of

death given by concerned autopsy surgeon is that the deceased

died due to shock and due to 100% superficial to deep burns.

9. Now, since the prosecution has come with a case of cruelty

and dowry death and before undertaking the exercise of

assessment of evidence led by prosecution, we think it appropriate

to refer to Section 498-A and 304B of the IPC. The said provisions

read as follows :

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"498-A - 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 purposes 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 demand".

10. The said provision came up for consideration in Giridhar Shankar Tawade v. State of Maharashtra1,where the Apex Court dwelling upon the scope and purport of Section 498-A IPC has held thus:-

" The basic purport of the statutory provision is to avoid 'cruelty' which stands defined by attributing a specific statutory meaning attached thereto as noticed herein before. Two specific instances have been taken note of in order to ascribe a meaning to the word 'cruelty' as is expressed by the legislatures:

Whereas explanation (a) involves three specific situations viz., (i) to drive the woman to commit

1 (2002) 5 SCC 177: (AIR 2002 SC 2078)

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suicide or (ii) to cause grave injury or (iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in explanation

(b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury : whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrance the attributes of 'cruelty' in terms of Section 498-A."

11. Section 304B of the IPC reads as follows:

"304B. Dowry death.-- (1) Where the death of a woman is caused by any burns or bodily injury or occurs 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 for, or 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 her death.

Explanation. --For the purpose of this sub- section, "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."

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12. Section 113B of The Indian Evidence Act, 1872 reads as

follows:

"113B. Presumption as to dowry death.-- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.

Explanation.--For the purposes of this section, "dowry death" shall have the same meaning as in section 304B, of the Indian Penal Code, (45 of 1860)."

13. Thus, it can be seen that the offence created by Section 304B

requires the following elements to be present in order that it may

apply:

I. Within 7 years of the marriage, there must happen the death of a woman (the wife).

II. The death must be caused by any burns or bodily injury.

OR

The death must occur otherwise than under normal circumstances.

III. It must be established that soon before her death, she was subjected to cruelty or harassment.

13-apeal-1155-2012.doc.

IV. The cruelty or harassment may be by her husband or any relative of her husband.

V. The cruelty or harassment by the husband or relative of the husband must be for, or in connection with, any demand for dowry.

14. Section 304B treats this as a dowry death. Therefore, in such

circumstances, it further provides that husband or relative shall be

deemed to have caused her death. Section 113B of the Indian

Evidence Act, 1872 provides for presumption as to dowry death. It

provides that when the question is whether the dowry death,

namely, the death contemplated under Section 304B of the IPC, has

been committed by a person, if it is shown that soon before her

death, the woman was subjected by such person to cruelty or

harassment, for in connection with, any demand for dowry, the Court

shall presume that such person had caused the dowry death. It is no

doubt a rebuttable presumption and it is open to the husband and

his relatives to show the absence of the elements of Section 304B.

15. The foremost aspect to be established by the prosecution is

that there was reliable evidence to show that the woman was

subjected to cruelty or harassment by her husband or his relatives

which must be for or in connection with any demand for dowry, soon

before her death. Before the presumption is raised, it must be

13-apeal-1155-2012.doc.

established that the woman was subjected by such person to cruelty

or harassment and it is not any cruelty that becomes the subject

matter of the provision but it is the cruelty or harassment for or in

connection with, demand for dowry.

16. The aforesaid analysis of the provisions lay down how

coercive harassment can have the attribute of cruelty that would

meet the criterion as conceived of under Sections 498-A and 304B

of the IPC.

17. Keeping above analysis in mind, we now consider the

evidence on record.

18. PW-1 Babalal Mohamad Bargir, father of deceased and

informant, states in his evidence (Exh. 14) that the deceased was

married to A-2 on 17th October, 1999. After one month of marriage

when deceased visited him and upon being asked about her well-

being, the deceased told that there are demands of gas stove

connection, TV, cupboard and gold ornaments at the hands of A-1

and A-2. She further told that she is being abused and troubled.

19. It is his further evidence that after some time he called A-2 and

gave his own LPG cylinder along with regulator and gas stove but

13-apeal-1155-2012.doc.

still the harassment continued. The deceased was abused and

asked to fetch water from long distance.

20. PW-1 father then states that on 7 th April, 2000 there was "Urs"

festival in his village and therefore, he invited all the accused for that

function but only deceased and her husband came. However, her

husband after dropping the deceased went away. The deceased

then told this witness that A-1 and A-2 had asked her to bring the

cupboard, TV and gold ornaments and if the demands are not

fulfilled, she will not go back because of ill-treatment and being

beaten at the hands of accused. In the evening, A-2 came. While

leaving the parental home she was reluctant to go and was crying

apprehending that she would be beaten there. However, this

witness pacified and persuaded her to go with her husband.

21. His evidence then shows that on 13 th April, 2000 he had gone

for work to RTO office. One phone call was received by Police

Patil, his neighbour, asking all the members to come to CPR

hospital. Hence his younger daughter Farzana and his wife (PW-2)

went to CPR Hospital and saw the deceased in a burnt condition.

The deceased told her mother that she burnt herself as she was ill-

treated more and more for ornaments. He came to know this fact at

about 5 O'clock in the evening. By the time he could reach the

13-apeal-1155-2012.doc.

hospital, his daughter had already died. He then proved his FIR at

Exh. 50.

22. The first part of examination-in-chief of this witness is full of

vagueness and does not give insight as to what kind of abuses were

allegedly given by accused and deceased was subjected to trouble

on the ground of demand of gas stove connection, TV, cupboard

and gold ornaments. His evidence then shows that he had also

given his own LPG regulator and gas stove and despite that ill-

treatment still continued and deceased was abused and asked to

fetch water from long distance. Here again the nature of ill-

treatment is not explained.

23. The evidence of this witness then gives an account of the

incident which took place on the day of "Urs" festival i.e. on 7 th April,

2000. Although this witness had invited all the accused for the said

festival but only his daughter and A-2 came and that too A-2 went

away after dropping the deceased.

24. His evidence is suggestive of the fact that the deceased told

him that A-1 and A-2 had asked her to bring cupboard, TV and gold

ornaments and if these demands are not fulfilled, she was not ready

to go back, fearing ill-treatment and being beaten at the hands of

accused.

13-apeal-1155-2012.doc.

25. Interestingly, this material fact as per contents of FIR was told

to this witness by his wife and not by deceased directly to this

witness. The reliability of this piece of evidence can only be gauged

at the time when we go to evidence of PW-2 wife.

26. Again coming to the main incident dated 13 th April, 2000.

According to this witness, in the hospital deceased told her mother

that being fed up with the ill-treatment on the ground of fulfillment of

demand of ornaments, she got herself burnt. This evidence is in the

nature of hearsay evidence and therefore, necessarily will have to

be ascertained and assessed from the testimony of PW-2 wife.

27. PW-2 Bibijan Babalal Bargir, mother of deceased and wife of

PW-1- informant, states in her evidence (Exh. 17) that after

marriage when deceased came for the festival of Ramzan-Id, she

was told by deceased that all the accused were demanding fan,

safe, gold and cash and on this count they all used to beat her and

ill-treat her mentally. However, she sent back her daughter after

pacifying her.

28. Her evidence then shows that on the last occasion deceased

came for "Urs" festival and told about harassment and demands of

accused. When her husband came to take her back, she personally

13-apeal-1155-2012.doc.

talked to her husband who promised to treat her properly.

29. Deposing on the incident dated 13 th April, 2000 she states that

pursuant to the message received by her, she rushed to CPR

Hospital. She found husband and brother-in-law of her daughter

there. Her daughter was completely burnt. She was conscious and

was able to speak. According to her, her daughter told her that all

the accused had beaten her during the whole night and she was fed

up with the treatment given to her by them and therefore, she

attempted to commit suicide by setting herself on fire.

30. The version of PW-2, mother of deceased, materially differs

from the version of PW- 1 informant -father. According to PW-2,

there were demands of fan and safe apart from other demands but

then in the cross examination she states that she did not tell before

police about accused demanding fan and other things after marriage

and because of that the deceased was beaten by accused. Even

PW-1 father does not corroborate the version of this witness on the

aspect that because of non-fulfillment of demands the deceased

was regularly subjected to beating.

31. As far as accused and deceased visiting the house of this

witness on account of "Urs" festival is concerned, it appears from

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the version of PW-2 that her daughter again apprised her about

continuous harassment and demands but the nature of harassment

is nowhere explained. The evidence of PW-2 also shows that she

even talked with A-2 personally and persuaded her to treat the

deceased properly to which the latter promised. It then again this

material piece of evidence does not get any corroboration or support

from the mouth of PW-1 informant.

32. Lastly, her evidence to the effect that in the hospital she was

told by deceased that as she was subjected to beating throughout

whole night, a day prior to the incident and as also being fed up with

ill-treatment she attempted to commit suicide by setting herself on

fire, is a very crucial piece of evidence. The fact that she was

beaten throughout the night a day prior to the incident which

ultimately aggravated situation and thus being unable to cope up

with the harassment the deceased tried to extinguish her life spark

by committing suicide is neither elaborated in the FIR nor gets any

support even remotely from the testimony of PW-1 informant-father.

Therefore, much cannot be read from this piece of evidence.

33. PW-3 Ayesha Altaf Sayyed, cousin of deceased, states in her

evidence (Exh. 18) that after marriage deceased had met her for

two times and told the demands, namely, safe, fan, cash and gold

13-apeal-1155-2012.doc.

from the side of accused. She further told that on that count she

was physically and mentally tortured.

34. Her evidence further shows that when she visited hospital the

deceased told her about ill-treatment and demands of articles and

as also beating given by them because of which she attempted

suicide.

35. The first part of her evidence is quite vague, like PW-1-

informant, and is a generalised statement about physical and mental

torture given by accused to the deceased and as told to her by

latter. As far as the second part of her evidence is concerned, that

is also not in consonance with the FIR and as also does not get

support from the evidence of PW-1 informant.

36. PW-6 Gajanan Shankar Joshi is a very important witness

whose evidence in a sense totally upsets the case so far put forth by

the prosecution. He states in his evidence (Exh. 23) that at the

relevant time he was working as Assistant Sub Inspector at Rajwada

Police Station and was on duty at CPR Chowky. One burning case

had come in the hospital. He went to the patient who was

conscious and able to talk. When he took down the statement of

patient her husband only was present. It is his further evidence that

he recorded the statement in the presence of Medical Officer and

13-apeal-1155-2012.doc.

her husband. He then proved the said statement at Exh. 24, which

according to him also bears the signature of concerned Medical

Officer.

37. We have carefully gone through the statement of deceased

recorded at Exh. 24 by PW -6 ASI. Her statement clearly shows

that in the morning of 13th April, 2000 when her husband left for work

she started preparing tea on a stove which all of sudden exploded

and clothes on her person caught fire. She started crying. After

hearing her cries her mother-in-law came and poured water and

extinguished the fire. It further shows that at the relevant time

nobody was there and that she had no complaint. The incident took

place because of her negligence.

38. The above statement/ dying declaration of deceased is in

direct conflict with the oral evidence adduced by other prosecution

witnesses. What surprises us is that neither the parents, cousin nor

Investigating Officer, in their respective substantive evidence, put a

question mark on the reliability and genuineness of the last

statement of the deceased. Under what circumstances the kind of

statement exculpating the accused was given by the deceased is

nowhere explained. It is also neither the case of parents nor that of

Investigating Officer that this dying declaration was secured from

13-apeal-1155-2012.doc.

the deceased under duress, threat or coercion. This statement/

dying declaration of the deceased throws away whole prosecution

case in one blush.

39. In the state of evidence, which we have referred to, does not

commend itself to us for acceptance. There is abysmal failure on

the part of prosecution to bring home the charge against accused.

40. There is one more aspect and that is delay in lodgment of FIR.

The incident in question took place on 13 th April, 2000 whereas the

FIR came to be lodged on 15th April, 2000. According to PW-1-

informant father, he was shocked due to death of daughter and was

suffering from blood pressure. His mental condition was not proper

as a result of which he lodged the report on 15 th April,2000. The

reason so given in the evidence is conspicuously absent and does

not form part of FIR. Even his own wife does not say that at the

relevant time the blood pressure of PW-1 informant had shot up

abnormally and as also because of shocking incident in question the

FIR came to be filed belatedly.

41. It is in the facts and circumstances of the case there is delay

and the same is fatal to the cause of prosecution.

13-apeal-1155-2012.doc.

42. Having regard to the nature of evidence and as also the

discussion thereon, we are of the considered view that the kind of

cruelty requisite with the fulfillment of the above noted provisions

are not satisfactorily established. Apart from lackluster evidence

adduced by the prosecution in the form of parental testimonies,

there is testimony of PW-5 Rafiq Gulab Pakhali which gives

altogether a different story quite unfavorable to the cause of

prosecution. PW-5 although is witnessed on the point of spot

panchnama (Exh. 21) but his cross-examination is full of

significance.

43. In the cross-examination, this witness states that he resides

adjacent to the house of accused. According to him, he had seen

Iqbal Mahamad Shaikh and his wife i.e. deceased residing happily.

He did not see couple quarreling. He was on visiting terms to them

and had seen articles like cupboard, TV etc in their house. This

witness being the prosecution's own witness clearly negates the

theory of demand and ill-treatment at the hands of accused.

44. On re-appreciating the evidence on record, it clearly emerges

that the evidence of parents of the deceased and her cousin is not

inspiring and reliable, rather there is evidence of PW-5 and also

dying declaration of the deceased which takes away the sail from

the ship of the prosecution. The learned trial Court has considered

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aforesaid legal and factual aspects in its proper perspective. As

such, the impugned judgment and order does not warrant

interference and deserves to be maintained.

45. In the result, we find no merit in the appeal and accordingly

the appeal stands dismissed.

          (V. G. BISHT,J.)             (PRASANNA.B.VARALE, J.)




                  Digitally
                  signed by
                  Trupti
Trupti            Bhamne
Bhamne            Date:
                  2021.01.19
                  22:15:37
                  +0530