Jharkhand High Court
Baby Farzana vs The State Of Jharkhand on 13 April, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Acquittal Appeal No. 20 of 2020
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(Against the judgment of acquittal dated 13th December 2019 passed by the learned
Additional Sessions Judge-VII cum Spl. Judge Crime Against Women, Hazaribag in
Sessions Trial Case No. 197 of 2016)
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Baby Farzana, wife of Md. Iliyash, resident of Khan Road, Khirgoan, PO
and PS Sadar, District Hazaribag ...... Appellant
Versus
1. The State of Jharkhand
2. Md. Kalim, son of Md. Basruddin,
3. Md. Basruddin, son of late Gulam Nabi
4. Md. Salim, son of Md. Basruddin
5. Rasida Khatoon, wife of Md. Basruddin
6. Nausawa Pravin, wife of Md. Salim
All residents of village- Khirgoan, PO & PS Sadar, District
Hazaribah . ..... Respondents
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PRESENT
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
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For the Appellant : Mr. Ashok Kumar Singh, Advocate
For the State : Mrs.Vandana Bharti, APP
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Oral Order
13th April 2023
Per, Shree Chandrashekhar,J.
Acquittal Appeal No. 20 of 2020 has been filed by Baby
Farzana who is the informant of Sadar (Barabazar) PS Case No. 129 of
2016.
2. In this Acquittal Appeal filed by virtue of a right conferred in
the victim/informant under proviso to section 372 of the Code of Criminal
Procedure, Baby Farzana has challenged the judgment dated 13 th December
2019 passed in Sessions Trial Case No. 197 of 2016.
3. In Sessions Trial Case No. 197 of 2016, the family members of
Khusnuma @ Naina who were charged under sections 304-B/34 and 302/34
of the Indian Penal Code have been acquitted except her husband.
4. The learned trial Judge has held that the prosecution witnesses
could not tender such evidence so as to prove that soon before her death
Khusnuma was subjecting to harassment and torture in connection to
2 Acquittal Appeal (DB) No.20 of 2020
demand of dowry. Accordingly, the learned trial Judge has held that a
presumption under section 113-B of the Indian Evidence Act cannot be
raised against the accused persons that they have committed dowry death of
Khusnuma.
5. The learned trial Judge has held as under:
"20. Learned counsel appearing for the accused has contended
that the statement of the informant i.e PW-5 Baby Farzana and
PW4 Md. Illias has not been corroborated by any other
independent witnesses and therefore, the prosecution has failed to
prove the most essential ingredients of the offence u/s 304(B) of
I.P.C that soon before her death, the deceased was subjected to
cruelty and harassment for the demand of dowry. Learned defence
counsel has also contended that even if it is said to have been
established that the death of the deceased was unnatural having
occurred otherwise than normal circumstance, within seven years
of the marriage but the fact remains that the prosecution has to
prove by bringing cogent and impeachable evidence on record
regarding the demand of dowry and subjecting the deceased to
cruelty by the accused facing the trial and here in this case, since
the evidence of parents has remained uncorroborated, conviction
cannot be based on the evidence of such interested witnesses. With
respect to this contention of the defence, I would like to mention
that section 134 of Indian Evidence Act acknowledges well
recognized maxim "evidence has to be weighed and not counted"
and section 134 of Indian Evidence Act has categorically laid down
that no particular number of witness shall, in any case, be required
for the proof of any fact. In Jagdish Prasad Vs. State of M.P AIR
1994 SC 1251, it was held that as a general rule, court can and
might act on the testimony of a single witness provided he is only
reliable. There is no legal impediment in convicting a person on
sole testimony of a single witness. Therefore, the law as emerges
from section 134 and by the decision of Hon'ble Supreme Court is
that the conviction can be based on the testimony of a single
witness, if he is wholly reliable and his evidence is unblemished
and beyond all possible criticism; corroboration may be necessary
when he is partially reliable. Here in this case, defence has failed to
point out any major contradictions in the evidence of PW-4 Md.
Illias and PW5 Baby Farzana, parents of the deceased to show that
their statements with respect to the demand of cash Rs. 60,000/- by
the accused and subjecting the deceased to cruelty on the non
fulfillment of such demand can be doubted. It is also important to
state that the parents of victim of the harassment and cruelty are
the most natural witnesses to depose these facts and the other
person who has no concern with the family affairs of either the
accused or the informant can not be expected to come to depose
with respect to such internal family matters. Hence, in such facts
and circumstance, I do not find any reason to disbelieve the version
of PW-4 Md. Illias and PW5 Baby Farzana given in the court
regarding the harassment and cruelty meted out to their daughter
on the non fulfillment of demand of cash Rs. 60,000/-. Normally no
witness other than family members are in the position to state about
these facts. Here, in this case, evidence of PW1 Md. Alam is also
explicit in this regard. This witness is maternal uncle of the
deceased and also appears to be an educated person as it appears
that the informant's written report is in the writing of this witness.
It is general trend that in village, if any occurrence takes place and
3 Acquittal Appeal (DB) No.20 of 2020
the matter is required to be reported to the police, the family
members and villagers first search for any educated person
amongst themselves to get the report prepared. The defence has
failed to show any reason that this witness had any reason for
falsely implicating the accused. The evidence of this witness is to
the effect that the amount of Rs. 60,000/- was demanded at the time
of marriage but the said demand could not be fulfilled at that time.
He further deposed that again during the stay of deceased at her
matrimonial house this demand cropped up and on non fulfillment
of the demand, his niece was physically assaulted by accused
husband Md. Kalim. According to this witness, when his niece had
come to her Maike, accused Md. Kalim had approached him and
on his request and persuasion, he had sent his niece to her Sasural,
where she died on 02.02.16. Therefore, I find that the evidence of
the witnesses establishes beyond doubt that deceased was subjected
to cruelty and harassment in connection of demand of dowry soon
before her death and as such presumption u/s 113(B) of Indian
Evidence Act can be invoked. This presumption though can be
rebutted but the accused has failed to bring any evidence on the
record to rebut this presumption. The accused in their defence have
taken the plea that the deceased committed suicide after being
disturbed by the quarrel, which had taken place in the morning of
the alleged date of occurrence. It has been contended that on the
same morning, a dispute/quarrel had taken place in the family
when the deceased had washed her clothes in the washing machine
given to Nausawa by her parents at the time of her marriage with
accused Md. Salim solemnized only 21 days before the date of
occurrence. However, except this bare assertion at the time
argument, there is no material on the record to suggest this fact.
The accused persons have neither taken this stand in their
statements recorded u/s 313 Cr.P.C nor adduced any evidence to
prove this fact.
21. Therefore, the evidence on the record put forth by the
prosecution is sufficient to establish all the ingredients of the
offence punishable u/s 304B of I.P.C. and the prosecution has
succeeded in establishing this charge against the accused Md.
Kalim, husband of the deceased. So far as involvement of other
accused persons facing trial, I find that evidence of all the
witnesses shows that accused Md. Basruddin had been residing in
Chatra with his second wife for the last 20 years, whereas the
accused Nausawa had come in the house only 21 days before the
date of occurrence. In such circumstances, there was no question of
their involvement in the offence of subjecting the deceased to
cruelty and demand of dowry. I also find that except one sporadic
incident of accused Rashida Khatoon, mother-in-law of deceased of
being involved in assaulting the deceased once, no other overt act
has been alleged against her. I also find that only PW1 has stated
about this incident but his statement in this regard has not been
supported and corroborated by any other witness. Moreover,
Sporadic incidents of ill treatment or quarrel on any matter in the
family by any member of in-laws house do not attract definition of
cruelty as they may not be aimed at pressurizing her to fulfill the
demand of property. There is also no whisper of allegation that
accused Md. Salim used to demand money but the allegation-
against him appears to be very general and vague as non of the
witnesses including the informant has given any specific instance
or specific occasion of such demand from the side of this accused.
Therefore, in such facts and circumstances, I am of the considered
opinion that the prosecution has not been able to bring home the
charge u/s 304B IPC against accused persons except accused Md.
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Kalim, husband of the deceased. As a result, I find and hold that the
accused Md. Kalim guilty for committing the offence of dowry
death u/s 304B of the I.P.C and accordingly, he is convicted for the
offence punishable u/s 304B of I.P.C. Bail of the accused is
cancelled and he is taken judicial custody. Rest four accused
persons namely, Md. Basruddin, Md. Salim, Rashida Khatoon and
Nausawa are acquitted from the charge u/s 304B of IPC. They and
their bailors are also absolved from the liability of their bail bonds.
.... ....."
6. The marriage of Khusnuma was solemnized with Md. Kalim on
15th January 2012. According to the informant, six months after the marriage
the husband and other family members started demanding Rs.60,000/- and
one motorcycle and in connection thereof they inflicted various acts of
harassment and torture upon her daughter. She has further deposed in the
Court that a panchayati was convened and the dispute was sorted out but
finally her daughter was killed by her husband and the in-laws. PW1
Md. Alam who is the maternal uncle of Khusnuma has also stated about
harassment and torture of his niece at the hands of the accused persons.
Similarly, PW2 Md. Jainul Ansari has also stated that his granddaughter was
killed by strangulation by wrapping a dupatta around her neck by the
accused persons. PW4 Md. Illias who is the father of Khusnuma has stated
in the Court that his daughter narrated her miseries in her matrimonial home
in connection to demand of Rs.60,000/- and one motorcycle by the accused
persons. PW3 Zafar Akil who is the resident of village Khirgaon has
deposed that Khusnuma had quarrels with her in-laws in connection to
demand of dowry. He has further stated that a panchayati was convened to
resolve the issue and in February 2016 he heard that Khusnuma was killed in
her matrimonial home.
7. Admittedly, these witnesses are not eyewitness to the
occurrence in which Kushnuma has died and, therefore, they could not have
spoken anything about the circumstances under which she has died. The
cause of death of Kushnuma has been indicated in the medical evidence
tendered by Dr. Mahendra Prasad Chaudhary. As PW6, the doctor has
deposed in the Court that on examination of the dead body of Kushnuma he
found ligature mark over upper part of her neck above thyroid cartilage
running obliquely upward and backward up to both mastoid region. On
dissection of ligature mark, the doctor has found white band found beneath
the ligature mark and pithechial hemorrhagic points were also found over the
5 Acquittal Appeal (DB) No.20 of 2020
margin of ligature mark. In the opinion of PW6, Kushnuma has died
thirty-six hours from the postmortem examination due to asphyxia.
In his cross-examination, PW6 has stated that if someone dies through
strangulation his/ her tongue may protrude.
8. These question seems to have been put to PW6 by the defence
to elicit from him in the context of his observation in the post-mortem report
that eyes and mouth of Kushnuma both were found closed.
9. The aforesaid observations of PW6 clearly indicate that
Kushnuma has died a suicidal death.
10. In "Modi's Textbook of Medical Jurisprudence and Toxicology"
(26th Edition), the learned writer has stated that in case of homicidal death
there shall be fracture of larynx and trachea.
11. In "Ponnusamy v. State of T.N." (2008) 5 SCC 587 the Hon'ble
Supreme Court has observed that existence of a fracture on the hyoid bone
may lead to a conclusive proof of death by strangulation but absence thereof
does not prove the contra. There is no observation by PW6 about any scratch
mark over the face or other parts of the body of Kushnuma. Also, any
abrasion or nail marks, or bruises around face or neck were not found by
him.
12. In a prosecution under section 304-B of the Indian Penal Code,
the prosecution is required to prove such facts which would constitute
essential ingredients for the offence of dowry death. The submission made
on behalf of the informant/ appellant that a presumption under section 113-B
of the Indian Evidence Act must have been raised by the learned trial Judge
cannot be accepted without showing that the prosecution has established a
prima facie case under section 304-B of the Indian Penal Code, for which it
must be shown to the Court that the woman has died under circumstances
otherwise than normal circumstance. A suicidal death can be said to be a
death not under normal circumstances but then it is difficult to raise a
presumption of dowry death in absence of an allegation of abetment to
suicide. It is well-remembered that the statutory presumption under section
113-B of the Indian Evidence Act which the Court can raise against the
accused does not relieve the prosecution of its duty to establish its case
beyond all reasonable doubt.
6 Acquittal Appeal (DB) No.20 of 2020
13. In "Shambu Nath Mehra v. State of Ajmer" AIR 1956 SC 404
the Hon'ble Supreme Court has observed as under:
"11. This lays down the general rule that in a criminal case the
burden of proof is on the prosecution and S. 106 is certainly not
intended to relieve it of that duty. On the contrary. It is designed to
meet certain exceptional cases in which it would be impossible, or
at any rate disproportionately difficult for the prosecution to
establish facts which are "especially" within the knowledge of the
accused and which he could prove without difficulty or
inconvenience.
The word "especially" stresses that it means facts that are pre-
eminently or exceptionally within his knowledge. If the section
were to be interpreted otherwise, it would lead to the very startling
conclusion that in a murder case the burden lies on the accused to
prove that he did not commit the murder because who could know
better than he whether he did or did not.
It is evident that cannot be the intention and the Privy
Council has twice refused to construe this section, as reproduced in
certain other Acts outside India, to mean that the burden lies on an
accused person to show that he did not commit the crime for which
he is tried. These cases are Attygalle v. The King, 1936 PC 169
(AIR V 23) (A) and Seneviratne v. R. 1936-3 ER 36 AT P. 49 (B).
...........................................................................................................
13. We recognise that an illustration does not exhaust the full
content of the section which it illustrate but equally it can neither
curtail nor expand its ambit; and if knowledge of certain facts is
as much available to the prosecution, should it choose exercise
due diligence, as to the accused, the facts cannot be said to be
especially" within the knowledge of the accused. This is a section
which must be considered in a common sense way; and the
balance of convenience and the disproportion of labour that would
be involved in finding out and proving certain facts balanced
against the triviality of the issue at stake and the ease with which
the accused could prove them, are all matters that must be taken
into consideration. The section cannot be used to undermine the
well established rule of law that save in a very exceptional class of
case, the burden is on the prosecution and never shifts."
14. Mr. Ashok Kumar Singh, the learned counsel for the appellant
has contended that the informant who is the mother of Khusnuma, her uncle
and grandfather have made specific allegation of demand of Rs.60,000/- and
one motorcycle but this vital piece of evidence has been ignored by the
learned trial Judge and while so the judgment under challenge is seriously
flawed in law.
15. The evidence tendered by PW1, PW2, PW4 and PW5 on
demand of dowry and harassment and torture of Kushnuma in her
matrimonial home is not a substantive evidence as envisaged under section
60 of the Indian Evidence Act. These witnesses have admitted in the Court
that Kushnuma had informed them about demand of Rs.60,000/- and one
motorcycle by the accused persons.
7 Acquittal Appeal (DB) No.20 of 2020
16. In "Sher Singh v. State of Haryana" (2015) 3 SCC 724 the
Hon'ble Supreme Court has observed that in a case of dowry death only
when the prosecution evidence sufficiently establishes that the victim was
treated with cruelty the assumption of deemed guilt of the accused would
arise.
17. In"Sher Singh" the Hon'ble Supreme Court has observed as
under :
"25.The fundamental and vital question that the Court has to ask
itself and find a solid answer to, is whether this evidence even
preponderantly proves that the appellant had treated the deceased
with cruelty connected with dowry demands. It is only if the answer
is in the affirmative will the Court have to weigh the evidence
produced by the appellant to discharge beyond reasonable doubt,
the assumption of his deemed guilt."
18. In the aforesaid state of evidence, the learned trial Judge has
rightly held that prosecution has failed to establish the charge of dowry
death against the accused persons. Furthermore, once it is established from
the prosecution's own evidence that Kushnuma has suffered a suicidal death
a charge under section 302 of the Indian Penal Code cannot survive.
19. There are certain judicially evolved parameters to test the
legality of the judgment of acquittal rendered by the learned trial Judge. The
powers of the Appellate Court to interfere with the judgment of acquittal are
no doubt same as the powers exercised by the Court while seized with an
appeal against the judgment of conviction. However, before the Appellate
Court decides to interfere with a judgment of acquittal it is required in law to
record a finding that there are compelling reasons arising out of over looking
of some vital evidence on the record which warrants interference with the
judgment of acquittal.
20. In "Jaswant Singh v. State of Haryana" (2000) 4 SCC 484 the
Hon'ble Supreme Court has held as under:
"21. The principle to be followed by appellate courts considering
an appeal against an order of acquittal is to interfere only when
there are "compelling and substantial reasons" for doing so. If the
order is "clearly unreasonable" it is a compelling reason for
interference (see Shivaji Sahabrao Bobade v. State of
Maharashtra). The principle was elucidated in Ramesh Babulal
Doshi v. State of Gujarat : (SCC p. 229, para 7)
"While sitting in judgment over an acquittal the appellate court is
first required to seek an answer to the question whether the findings
of the trial court are palpably wrong, manifestly erroneous or
demonstrably unsustainable. If the appellate court answers the
above question in the negative the order of acquittal is not to be
8 Acquittal Appeal (DB) No.20 of 2020
disturbed. Conversely, if the appellate court holds, for reasons to
be recorded, that the order of acquittal cannot at all be sustained in
view of any of the above infirmities it can then -- and then only --
reappraise the evidence to arrive at its own conclusions."
(See also George v. State of Kerala)."
21. While so, finding no infirmity in the judgment of acquittal
passed in Sessions Trial Case No. 197 of 2016, Acquittal Appeal No. 20 of
2020 is dismissed against the respondent Nos. 3 to 6.
22. Let a copy of the judgment be transmitted to the Court
concerned through 'FAX'.
(Shree Chandrashekhar, J.)
(Ratnaker Bhengra, J.)
Jharkhand High Court, Ranchi
Dated: 13th April, 2023
S.B./Nibha-A.F.R
