Bombay High Court
Ayub Yusuf Shaikh vs The State Of Mah on 24 September, 2024
2024:BHC-AUG:22445
CriAppeal-879-2004
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 879 OF 2004
1. Ayub Yusuf Shaikh,
Age : 38 years, Occu. Driver
2. Rabbana Ayub Shaikh,
Age : 35 years
3. Rabiya Daud Shaikh,
Age : 40 years
4. Zubeda Ismail Shaikh,
Age : 36 years
No. 2 to 4 occu. Household,
All R/o. Karjat, Tal. Karjat,
District Ahmednagar. ... Appellants
Versus
The State of Maharashtra
Through Police Sub-Inspector,
Karjat Police Station, Karjat,
District Ahmednagar. ... Respondent
.....
Mr. Joydeep Chatterji, Advocate for the Appellants.
Mr. K. K. Naik, APP for Respondent-State.
.....
CORAM : ABHAY S. WAGHWASE, J.
Reserved on : 19.09.2024
Pronounced on : 24.09.2024
CriAppeal-879-2004
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JUDGMENT :
1. In this appeal, there is challenge to the judgment and order of
conviction dated 16.12.2004 passed by learned IInd Additional
Sessions Judge, Ahmednagar in Sessions Case No. 127 of 2002, for
offence punishable under sections 498-A and 306 r/w 34 of the
Indian Penal Code [IPC].
BRIEF BACKGROUND OF THE SESSIONS TRIAL
2. Deceased Bismilla, daughter of informant PW1 Ismail, was
married to accused no.1 Ayub on 30.03.1999. Initially for four
months, she was treated properly. Subsequently, husband, his first
wife and two sisters-in-law subjected her to cruelty on the count of
not bringing Rs.50,000/- for business of saw-mill and for not
rendering assistance in running saw-mill. One and half years prior to
the death, she reported beating and harassment. One year prior to the
incident, because of assault, she lodged report with police and 4 to 5
months prior to the incident, she went back to reside with husband at
Karjat but was driven out of the house. Two months prior to her
death, husband came and took her by assuring to treat her well, but
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both, harassment and beating, continued. On 24.06.2002, she
consumed poison and committed suicide and therefore PW1 father
lodged report Exhibit 30, on the basis of which, PW9 registered crime,
investigated the case, gathered evidence and chargesheeted husband
and in-laws for commission of offence under Sections 498-A and 306
r/w 34 of IPC.
3. After appreciating the oral and documentary evidence, learned
IInd Additional Sessions Judge, Ahmednagar, by judgment dated
16.12.2004, convicted the appellants for both offences i.e. under
Sections 498-A and 306 r/w 34 of IPC.
Above judgment is the subject matter of the instant appeal.
EVIDENCE ON RECORD
4. The role and status of the 10 witnesses examined by
prosecution in support of its case, and the sum and substance of their
evidence can be summarized as under :
PW1 Father deposed about marriage of his daughter with appellant
no.1 on 30.03.1999. After four months, there was ill-treatment
in the form of beating and harassment for not being given
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Rs.50,000/- for saw-mill business and for not assisting in saw-
mill work. He stated that about one and half year prior to her
death, she had reported beating and harassment. On
24.06.2002 also, in presence of her sister Asma, she was
assaulted, shortly after which, she consumed poisonous
substance and died. So he lodged report Exhibit 30.
PW2 Ibrahim, brother also deposed that after five months, all
accused beat and demanded Rs.50,000/- for saw-mill business
and she reported such incidence. About one and half year prior
to the incident, she had told about continuous harassment and
beating. He also stated about instances of beating two months
prior to the incident and on 24.06.2002 in presence of his sister
Asma, after which Bismilla consumed poison.
PW3 Bapu acted as pancha to spot panchanama Exhibit 40.
PW4 Santosh, a rickshaw driver, whose rickshaw was used as
conveyance to shift Bismilla to hospital.
PW5 Police Constable Dada Bhand, who noted khabar given by
accused Ayub (Exhibit 43).
PW6 Pathan is the owner of the jeep which was used to shift Bismilla
to Civil Hospital, Ahmednagar.
PW7 Police Head Constable Bhosale who recorded complaint by
deceased Bismilla on 21.03.2001.
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PW8 Dr. Tarte is the autopsy surgeon. In his evidence at Exhibit 53,
he deposed about noticing four abrasions and one contusion
injury on the person of deceased while conducting postmortem.
According to this medical expert, the probable cause of death
was cardio-respiratory failure due to organo-phosphorus
poisoning.
PW9 Police Inspector Shinde is the Investigating Officer.
PW10 Dr. Rajashree Pagariya, Medical Officer attached to Karjat
Rural Hospital, who had occasion to examine Bismilla on
24.06.2002, also noted four abrasions and one contusion injury,
and she prepared MLC Exhibit 60.
SUBMISSIONS
On behalf of the appellants :
5. Pointing to the above evidence and criticizing the judgment and
findings, learned counsel for the appellants pointed out that appellant
no.1 is husband, appellant no.2 is his first legally married wife,
whereas appellant nos. 3 and 4 are married sisters-in-law of deceased.
He pointed out that except evidence of father and brother, there is no
other independent convincing evidence. He would strenuously submit
that these witnesses claim beating in presence of another daughter of
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informant, namely Asma, but surprisingly she is not examined by
prosecution. He pointed out that even otherwise, informant father
and brother are making general allegations as they both are not
clearly defining roles of the appellants. He pointed out that no specific
instances of alleged beating are coming on record. He pointed out
that accused had saw-mill business which was admittedly ancestral
one. Husband alone was looking after the said business, and it being
since forefathers, there was no question of putting up demand of
Rs.50,000/- for running business.
6. As regards the alleged consumption of poison is concerned,
learned counsel for the appellants submitted that allegations are of
consumption of organophosphorus insecticide. But he pointed out
that C.A. report itself is nil, as no such substance is detected in
analysis. He pointed out that seized muddemal and viscera was not
dispatched to the analyzer immediately. Even carrier of muddemal is
not examined and therefore, there is also question about link
evidence. Lastly he submitted that initially A.D. was registered, that
too, on the information of appellant husband, and in spite of death
taking place on 24.06.2002, FIR is lodged by father on the next day
and as such, there is possibility of false, afterthought and concocted
version being reported due to annoyance of losing Bismilla.
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7. Concluding his argument, he submitted that learned trial court
has not appreciated the answers given by witnesses in cross and also
lost sight of settled legal position and as such, according to him, such
judgment is required to be interfered with by setting aside the same.
On behalf of the respondent - State :
8. Countering the above submissions, learned APP pointed out
that there is clear, convincing, cogent and reliable evidence. Father
and brother are categorical about harassment and ill-treatment on
account of demand of Rs.50,000/-. That, both of them have quoted
specific period of beating and harassment. There was beating in
proximity to consumption. Appellants were named by the witnesses.
That, even deceased had previously lodged complaint about
harassment and ill-treatment and therefore, according to him, there is
more than convincing evidence. There being correct appreciation by
learned trial court of such quality evidence, he prays to dismiss the
appeal for want of merits.
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ANALYSIS
9. Here, evidence of father, brother are heavily relied by
prosecution in trial court. It would be apposite to reproduce in
verbatim the relevant testimony which is as under:
Evidence of father PW1 Ismail :
"1. I reside along with my wife and daughter by name
Asma. Bismilla was my daughter. Her marriage was
performed with Ayub Yusuf Shaikh in the year 1999 on
30.03.1999. After the marriage she went to reside along
with her husband at Karjat. She was residing there along
with her husband and his first wife Rabbana. Near their
house, her two sisters-in-law by name Rabu Daud Shaikh
and Zubeda were residing. Her sisters-in-law were doing
the business of saw-mill. Initially for 4 months, Bismilla
was treated properly. Thereafter, her husband, his first
wife and two sister-in-laws started beating her, on the
count that she was not known how to do the work of saw-
mill and also on the count that at the time of her marriage,
nothing was given to her and she should bring amount of
Rs.50,000/- from her parents for the business of saw-mill.
After the beating she used to come to our house. At that
time, she used to tell us about the harassment and beating
and demand.
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2. About 1 ½ year prior to this incident, she has come
to our house after such beating and harassment. She told
us about harassment and beating therefore, I along with
my four sons took her in the jeep to Karjat to the house of
her husband. There, one meeting took place. At that time,
her husband his first wife and two sisters-in-law demanded
us amount of Rs.50,000/- for the purpose of business of
saw-mill. We assured them when we will get the amount,
we will give it to them. We left her in their house and
returned. Thereafter also they were harassing and beating
her.
3. About one year prior to the incident, all have
assaulted her. Hence Bismilla has lodged complaint with
Police. Then she came to our house. About four to five
months prior to incident, she again came to Karjat to the
house of her husband. Again she was driven out of the
house. Therefore, she came and stayed with us.
4. Two months prior to this incidence, her husband
came and took her giving her promises and assurances. He
took her to Rashin and started residing there. However,
her harassment and beating continued. She informed
about it to me on phone. On 20.06.2002, Asma has gone
to the house of her sister Bismilla at Rashin, to meet her.
5. On 24.6.2002, Asma came to our house at about
5.00 p.m. She told us that Bismilla's husband had not
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returned to house for four days, therefore, Bismilla has
gone to Karjat to inquire about him. Asma has also gone
along with her to Karjat. There in the presence of Asma,
Bismilla's sisters-in-law held hands and legs of Bismilla
and her husband and his first wife beat Bismilla with fist
blows and stick. They threatened to her. Therefore, both
Asma and Bismilla returned to Rashin. Due to the severe
assault and beating, Bismilla was seriously injured. Then
Asma went out of the house, Bismilla took some poisonous
substance and started feeling giddiness. Therefore, Asma
took her to Karjat. Asma also gave message to her husband
and his family members about it. Then her husband came
and took Bismilla to Civil Hospital. On the same night at
about 8.00 p.m. we received phone call that Bismilla has
died. Then all of us went to Karjat. There we found dead
body of Bismilla lying in the house of her husband. We
came to know that she has died on account of
consumption of poisonous substance. She has consumed
poisonous substance being fed of the harassment, demand
and beating and ill-treatment, at the hands of her
husband, his first wife and two sisters-in-law. We
immediately informed to police however he recorded our
complaint on the next day. The complaint is recorded as
per my say. Now shown to me is same, it is signed by me.
Contents are correct, it is marked as exh. 30. Accused No.1
before the court is her husband, No.2 Rabbana is his first
wife, Nos. 3 and 4 are her sisters-in-law."
CriAppeal-879-2004
Evidence of brother PW2 Ibrahim :
"1. Bismilla was my younger sister. Her marriage was
performed with the accused No.1 Ayub in the year 1999.
After the marriage, she was residing along with at Karjat.
The first wife of the accused No.1 Rabbana was also
residing along with him whereas his two sisters, i.e.
accused Nos. 3 and 4 were residing near their house. They
were having the business of saw-mill.
2. After the marriage, initially for the period of 5
months only Bismilla was treated properly. Thereafter, all
the four accused were beating her. They were demanding
Rs.50,000/- for the business of saw-mill. Bismilla used to
tell us whenever she used to our house and we were going
to her house to meet her.
3. About one and half year prior to this incident
Bismilla came to our house and told us that, she was
continuously harassed and threatened with the demand of
Rs.50,000/-. We took her in jeep to Karjat. There meeting
took place. In that meeting, the accused persons
demanded the amount of Rs.50,000/-. We assured them
that we would give such amount to them as and when we
get it. We kept her in their house and returned back.
CriAppeal-879-2004
4. Two months prior to this incident, Bismilla came to
our house and told us that she was subjected to more
beating and harassment for satisfying the amount of
Rs.50,000/-. Therefore, she stayed in our house.
Thereafter, one month, her husband came. He gave her
assurance that he will take her to Rashin and stay with
her. He also promised that he will not harass her. He took
her with him.
5. Thereafter also her harassment and ill-treatment
continued. She used to tell us about it on phone.
6. On 20.06.2001 our sister Asma went to meet
Bismilla at Rashin. She stayed with Bismilla for four days
and returned to our house on 24.06.2002 at 5 to 6.00 p.m.
Asma told us that, accused No.1 Ayub had not returned to
house of Rashin for four days hence, she and Bismilla went
to his house at Karjat. There in the presence of Asma,
Bismilla's sisters-in-law held her and the husband his first
wife assaulted Bismilla, with fist blows, kicks and sticks.
Then both of them returned to Rashin. When Asma went
out of the house, Bismilla consumed some poisonous
substance. Therefore, Asma took Bismilla in a bus to Karjat
and told the accused No.1 about it. Thereafter Asma
returned to our house. Thereafter on that day at about
8-00 p.m. we received phone call that Bismilla is dead.
Then all of us went to Karjat at 8-30 p.m. Her dead body
was lying in the house. We found the marks of injuries of
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assault on her body. It is my say that being fed of her
harassment and ill-treatment given to her by the accused
persons, she has consumed poisonous substance to commit
suicide. Police have recorded my statement on 25/6/02.
Accused before the court are the same."
10. Initial cross to father PW1 in para 6 and 7 pertains to financial
condition of accused, his own service, family size and about marriage
and desertion of daughter Asma and she to be turning of unsound
mind. There are questions about accused Rabiya and Zubeda, about
saw-mill business. He denied previous marriage of Bismilla with one
Bapu and talaq between them. In para 8, all suggestions that, there
was no demand; that, Bismilla came only once to the house i.e. on
21.03.2001; there to be minor dispute; about Bismilla meeting
natural death; there to be quarrel between Asma and Bismilla on
24.06.2002, are all denied. He admitted that first wife of accused no.1
resided with him. Then there are questions about information of
death being received, they coming to Karjat on 24.06.2002 but
lodging report on 25.06.2002.
Witness is re-examined on marriage, agreement and its
registration and son born to deceased Bismilla, namely, Irfan.
CriAppeal-879-2004
11. PW2 brother, while under cross, answered that he is unable to
give exact date, month, year when she came and reported ill-
treatment. He admitted that there was no complaint at his instance at
any point of time or even on 24.06.2002. In para 8, suggestions about
reporting by Asma to be false, Bismilla coming on 21.03.2001 and she
being sent back to her husband are all denied, including suggestion of
there to be no demand of Rs.50,000/-.
ANALYSIS OF EVIDENCE OF FATHER AND BROTHER
12. On carefully analyzing above evidence of father and brother,
here, it is noticed that both are consistent about ill-treatment in the
form of beating and harassment, more particularly in the backdrop of
demand of Rs.50,000/-. Brother's testimony about meeting being
conducted in that regard has not been disturbed. Father has
specifically given the period of alleged beating i.e. one and half year
prior to the incident, one year prior to the incident, and then 2
months prior to the incident. They both are categorical and consistent
about hearing from Asma that there was beating to Bismilla on
24.06.2002. There are no material omissions, contradictions, or
inconsistencies to disbelieve their versions.
CriAppeal-879-2004
EVIDENCE OF MEDICAL EXPERTS
13. In support of injury due to beating, prosecution has examined
PW10, a Medical Officer and an independent witness, to whom
Bismilla was allegedly taken. She has deposed at Exhibit 58 that
around 4.00 p.m., Bismilla Ayub Saikh came to her hospital
accompanied by husband and some female relatives. She stated that
Bismilla was semiconscious. She stated that relatives gave history of
poisoning. She has noted the vital parameters and has deposed about
noticing abrasions on maxillary region, wrist joint, right forearm, left
tow and contusion on left side of nose. Though cross-examined at
length, above evidence of medical expert has not been shaken, except
stating that age of injury in not mentioned by her in Exhibit 60.
14. Above discussion clearly shows that there is consistent evidence
about beating being given to Bismilla. She had time and again
reported it to father and brother. Father has specifically given the
timeline as to when above incidents took place. His that testimony has
not been challenged. Brother has also lent support to father's
testimony. Medical expert PW10, who had occasion to examine
Bismilla on 24.06.2002, has also noticed and noted marks which are
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further reflected in Exhibit 60. Therefore there clear, convincing
evidence on the point of beating amounting to physical cruelty.
15. As regards to offence of Section 306 IPC is concerned, it is a
case of prosecution that only because of above harassment and
maltreatment, Bismilla consumed poison. Though very specific case of
prosecution is that such incident took place in presence of her sister
Asma, she has not been examined. But there is reason assigned for
non examination of such witness, as in the trial court, prosecution put
forth that she being differently abled, i.e. being mentally deranged,
she was not examined. But, father and brother both claim to have
learnt from deceased regarding beating. When allegations of beating
are supported by independent medical evidence discussed above,
there is no reason to not to consider it.
16. Evidence of PW10 medical expert confirms that husband and
female relatives had taken Bismilla to her and she has noticed
abrasions and contusions on face. Inquest panchanama Exhibit 37
drawn on 25.06.2002 demonstrates injury marks. Therefore, there is
material suggesting some incident taking place in the immediate
proximity to alleged consumption. Though, as pointed out by learned
counsel for appellants, there is no recovery of container of
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poison/bottle of poison, it is to be noted that alleged consumption is
of 24.06.2002 and spot panchanama Exhibit 40 is drawn on the next
day at around noon time. Therefore, there is possibility of tampering
with the evidence. It could be said to be a lapse on the part of
investigating machinery and appellants cannot derive benefit out of it.
17. Autopsy surgeon who is examined as PW8, has noticed four
abrasions and one contusion injury i.e. on the same location on which
even PW10, the first medical expert, has initially noticed and noted
such injuries. Even autopsy doctor branded the injuries to be
antemortem in nature. He has issued opinion as "probable cause of
death in my opinion was cardo-respiratory failure due to organo-
phosphorus poisoning". This autopsy surgeon is very categorical about
fine froth emanating from nostrils and mouth and on its strength, he
stated that he issued probable cause of death. This surgeon has
denied injuries mentioned in column no. 17 to be due to fall from S.T.
bus.
18. It is also strenuously submitted by learned counsel for
appellants that CA report does not support prosecution as no poison
was detected. He also pointed out that though viscera was preserved
on 25.06.2002, it was dispatched on 12.09.2002. Therefore, he raised
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doubt about chain of custody. It is true that in spite of autopsy being
conducted on 25.06.2002, CA report Exhibit 64 does go to show that
Chemical Analyzer has communicated to medical officer about
receiving parcel on 12.09.2002 i.e. almost after three months.
Resultantly, it is apparently a delayed dispatch.
19. However, in the considered opinion of this court, in the light of
availability of evidence of two medical experts i.e. PW8 and PW10,
here, the above lapses or nil report will not wash away testimonies of
these independent expert witnesses. PW8 is very categorical about
smell of organophosphorus from the froth which oozed out of mouth
and nostrils. Consequently, such evidence will not get eclipsed by
delayed analysis or negative report.
20. To sum up, here, there is convincing evidence in the form of
testimony of father and brother regarding repeated beating. Here, in
this case, immediately in proximity to death, there is convincing
evidence about physical injuries on the person of deceased, which
medical expert has denied to be due to fall. Therefore, the only
inference that follows is that, the marks are due to beating. Accused
husband and his sisters themselves had shifted Bismilla to the hospital
of PW10 within short span of the incident, confirming their presence.
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For such reasons, as ingredients of Section 306 IPC are very much
available, suicide can be safely attributed to accused persons.
21. Perused the judgment under challenge. There is correct
appreciation of both, oral account as well as medical account. Settled
law has been applied. No infirmity or error, which is so patent to
upset the findings, being brought to the notice, appeal fails. Hence, I
proceed the pass the following order :
ORDER
The appeal is dismissed.
[ABHAY S. WAGHWASE, J.]
22. On pronouncement of this judgment, learned counsel for the
appellants prays for six weeks time to surrender, so as to enable the
appellants to approach the Hon'ble Apex Court.
23. Learned APP strongly opposes the same.
24. Considering the above request made by the learned counsel for
the appellants, six weeks time is granted for the appellants to
surrender.
[ABHAY S. WAGHWASE, J.]
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