Niyaz @ Ayaz & Ors vs State on 12 July, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JODHPUR

D.B. Criminal Appeal No. 199 / 2011

1. Niyaz @ Ayaz S/o Shri Zaafar Ali,

2. Anwar S/o Zaafar Ali,

Both by caste Damamio Muslim, Residents of Ward
No.7, Rawatsar, District Hanumangarh (Raj.)

—-Appellants

Versus

State of Rajasthan

—-Respondent

__

For Appellant(s) : Mr. Mridul Jain.

For Respondent(s) : Mr. C.S. Ojha, PP.

__

HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS

HON’BLE MR. JUSTICE MANOJ KUMAR GARG

JUDGMENT

[Per Mr. G.K. Vyas, J.]

Date of Judgment: 12th July, 2017.

The instant criminal appeal was filed initially by three

accused appellants, viz. Niyaz @ Ayaz, Anwar, both sons of Sh.

Zaafar Ali and Zaafar S/o Gere Khan, under Section 374 Cr.P.C.,

being aggrieved by the judgment dated 21st February, 2011

passed by learned Addl. Sessions Judge (FT) No.2, Hanumangarh,

HQ Nohar, (Trial Court) in Session Case No.50/2008 (41/2008),

whereby accused appellants were convicted for the offences under
(2 of 13)
[CRLA-199/2011]

Sections 304B, 498A and 316 of IPC and sentenced them as

under: –

304-B of IPC Imprisonment for life along with
file of Rs.3000/-. In default of
payment of fine to further
undergo six months‟ rigorous
imprisonment.

498-A of IPC Rigorous Imprisonment for
three years along with fine of
Rs.1000/-. In default of
payment of fine to further
undergo three months‟ rigorous
imprisonment.

316 of IPC Rigorous Imprisonment for
seven years along with fine of
Rs.1000/-. In default of
payment of fine to further
undergo three months‟ rigorous
imprisonment.

During pendency of this appeal, appellant No.3- Zaafar Ali

died on 08.08.2015, therefore, an application was moved by the

counsel for the appellant along with death certificate. On

11.05.2017, the learned Public Prosecutor was directed to

ascertain the correctness of the said fact from concerned police

station and pursuant to which on the basis of information received

from SHO, Police Station- Rawatsar, it was apprised by the

learned Public Prosecutor that appellant, Zaafar Ali, is now no

more . Copy of the report of SHO, P.S.-Rawatsar, and death
(3 of 13)
[CRLA-199/2011]

certificate were produced to prove the fact of death of accused

appellant Zaafar Ali.

After considering the fact of death the appeal of accused

appellant was dismissed as having abated on 29.05.2017.

Thereafter amended cause title was filed and the same was taken

on record.

Now, we are deciding the present appeal qua remaining two

appellants, namely, Niyaz @ Ayaz, Anwar, both sons of Sh. Zaafar

Ali.

Briefly stated, the facts of the case are that on 06.06.2008

at 10.15 AM, a typed complaint (Ex.P/1) was filed by the

complainant, Raju Khan (PW.1), upon said complaint F.I.R.

No.182/2008 was registered at Police Station Rawatsar, on

06.06.2008 against the accused appellants u/s 304B, 498A and

406/34 of IPC. In the FIR the complainant submitted that his

daughter was married with appellant No.2, Anwar S/o Zaafar Ali,

two years back. In the marriage, various golden and silver

ornaments, electronic items, clothes were given as per his

financial status and position. As per allegations, appellants used to

misbehave with his daughter and used to force her to bring more

more/dowry from her parents. The appellants were demanding

scooter and some cash and for that many a times

meetings/„Panchayat/s‟ were held for reconciliation. On

31.05.2008, complaint went to the house of his daughter, Bano at

Rawatsar, and in the presence of present appellants, their other

relatives, a meeting was held in which complainant expressed his

desire to bring his daughter with him but appellants told that they
(4 of 13)
[CRLA-199/2011]

will send her after ten days with Anwar. It is also mentioned in the

complaint that his daughter, Bano was having pregnancy of six

months, however, in the night of 05.06.2008, all the accused with

a common intention while pouring kerosene upon the body of his

daughter and lit fire, which resulted into death of his daughter,

Bano.

After registration of the FIR, during investigation the

appellants were arrested and evidence was collected from the

place of occurrence and statements of the witnesses were also

recorded in the investigation. After completion of the

investigation, a charge sheet was filed against the accused

appellants under Section 302 and in the alternative u/s 304B,

498A, 406, 316 and 201/34 of IPC in the court of learned Judicial

Magistrate, First Class, Rawatsar, from where the case was

committed to the court of Sessions Judge and as per directions of

the Sessions Judge, ultimately the case transferred for trial to the

court of Addl. Sessions Judge (FT) No.2 Hanumangarh HQ. Nohar.

In the trial, after providing opportunity of hearing to the

appellants the trial court framed charges under Sections 302 or

302/34 and in the alternative under Sections 304B, 498A, 316 and

201 or 201/34 of IPC but the appellants denied the charges

levelled against them and prayed for trial.

During trial, in order to support the prosecution case,

statements of seven witnesses were recorded and 28 documents

were exhibited, thereafter prosecution closed its evidence. After

recording evidence of prosecution the statements of the accused

appellants were recorded under Section 313 Cr.P.C., in which they
(5 of 13)
[CRLA-199/2011]

denied all the allegations levelled by the prosecution witnesses

and produced three witness in defence and exhibited four

documents in defence.

READ  Bandu vs State Of Maharashtra on 9 March, 2007

After recording evidence of both the parties, final arguments

were heard by the trial court and vide judgment dated 21.02.2011

the trial court proceeded to acquit the appellants from the offence

under Sections 302, 406 and 201 or 201/34 IPC, however,

convicted the appellants for offences under Sections 304B, 498A

and 316 of IPC and sentenced them as mentioned above. The

impugned judgment dated 21.02.2011 passed in Session Case

No.50/2008 (41/2008) is under challenge in this appeal.

Learned counsel for the appellants at the very outset

submitted that the judgment under appeal is manifestly erroneous

and contrary to law, facts and evidence available on record,

therefore, the same deserves to be quashed. It is argued that

appellants, Niyaz @ Ayaz and Anwar both are real brothers and

sons of Zaafar Ali, who died during pendency of appeal. The

marriage of appellant No.2 Anwar was solemnized with deceased,

Bano, in the year 2006 and thereafter they started living together

at village and she gave birth to a male child. Learned counsel for

the appellants further argued that main cause of prosecuting the

appellants and convicting them is alleged demand of dowry but

the appellants belong to “Damami” (a sub-caste in Muslim

community), where there is no custom of any “Dahej” (dowry).

Therefore, the allegations for demand of dowry inserted into the

prosecution story, the bias entered in the mind of trial court.

(6 of 13)
[CRLA-199/2011]

While inviting attention towards the statement of PW.1- Raju

Khan (complainant and father of deceased), it is submitted that

certain allegations are made by this witness in the examination-in-

chief but is really strange that trial court did not look into the

cross-examination of PW.1 and erroneously held the accused

appellants guilty on the basis improved statement and major

contradiction in the statements of PW.1 Raju Khan. It is further

argued that PW.2, Shakoor (uncle of deceased), PW.4 Babu Khan

(brother-in-law of complainant and maternal uncle of deceased)

are the close relatives of deceased, Bano, and whatever

allegations are made by them, has not been corroborated by any

independent witnesses. The witness, PW.5, Saiyed Moinudeen,

turned hostile and did not support the prosecution case, therefore,

it is obvious that conviction is based upon concocted story.

Learned counsel for the appellants invited our attention

towards the statement of PW.6- Dr. Hanuman Singh, who was the

member of Medical Board, and conducted the postmortem of the

body of deceased, Bano. According to postmortem report

(Ex.P/12) the Medical Board opined that cause of death was

asphyxia. The witness PW.7, Vipin Sharma, is the investigating

officer, no other witness is produced by the prosecution to prove

the case. Learned counsel for the appellants vehemently argued

that the entire prosecution story is false because in the charge

sheet filed by the investigating officer, list of 20 witnesses was

furnished, however, only 7 witnesses were examined to prove the

prosecution case. Out of 7 witnesses, four witnesses are close

relatives of deceased, Bano and PW.6- Dr. Hanuman Singh, and
(7 of 13)
[CRLA-199/2011]

PW.7 – Vipn Kumar is the investigating officer, and independent

witness, PW.5- Saiyed Moiundeen turned hostile and did not

support the prosecution case, therefore, it is obvious that

prosecution has completely failed to prove its case beyond

reasonable doubt in absence of any trustworthy evidence. He,

thus argued that the judgment impugned may kindly be quashed

and the appellants may be acquitted from the charges.

In the alternative, learned counsel for the appellants argued

that even if this Court comes to the conclusion that presumption

can be drawn under Section 304B of IPC, then also, presumption

can be drawn against appellant No.2 Anwar, husband of deceased,

Bano, because deceased died within seven years of the marriage

and no reliable or trustworthy evidence is on record so as to

connect appellant No.1, Niyaz @ Ayaz, with the crime, therefore,

he is entitled to be acquitted from the charges levelled against

him and sentence of life imprisonment for offence u/s 304B of IPC

imposed against accused appellant, Anwar, deserves to be be

reduced because as per cross-examination of PW.1- Raju Khan,

the beheavour of appellant Anwar with deceased was not

quarrelsome for most of the time when she was residing with him

and out of their wedlock, a son was born.

Per contra, learned Public Prosecutor submitted that it is a

case in which no error has been committed by the trial court so as

to hold appellants guilty for offence under Sections 304B, 489A

and 316 IPC because deceased, Bano, died in the house of

appellant, Alwar just after two years of marriage, therefore, the

trial court ought to have drawn presumption for holding the
(8 of 13)
[CRLA-199/2011]

accused appellants guilty for committing offence u/s 304B, 498A

and 316 of IPC, which has been proved by the prosecution beyond

all shadows of doubt. Learned Public Prosecutor invited our

attention towards the fact that although PW.1 Raju Khan, PW.2

Shakoor and PW.4 Babu Khan are the close relatives but their

testimonies cannot be disbelieved in toto because as per their

statements, the deceased informed about demand of dowry by the

appellants.

While inviting our attention towards the statements of PW.3

Sattar Khan, neighour of the appellants, it is submitted that said

READ  G. Parshwanath Vs. State Of Karnataka on 18 August, 2010

witness in his statements stated that on the date of occurrence in

the night at about 1‟O clock when he was coming and going

towards his house, at that time, I fire in the house of appellants,

therefore, made a call to Zaafar Ali but no reply was given by any

person. Thereafter, the gate was opened by the accused, Zaafar

Ali, when witness PW.3- Sattar Khan entered in the house,

appellant Niyaz who was sleeping on his cot, went inside the

house and Anwar came out from the room and saw that wife of

Anwar was burning near the stove (pqYgk) in the kitchen. Meaning

thereby, independent witness has proved the incident and

presence of accused appellants when the incident of fire took

place in the house of accused appellants but there is no

explanation by the appellants how fire took place in their house, in

which deceased died.

Learned Public Prosecutor vehemently argued that it is a

case in which no error has been committed by the trial court to

convict the accused appellants for the offences u/s 304B, 498A
(9 of 13)
[CRLA-199/2011]

and 316 o IPC. It is, therefore, submitted that this appeal may

kindly be dismissed.

After hearing the learned counsel for the parties, first of all,

it is required to be observed that entire case is based upon

testimony of 7 witnesses of the prosecution and as per statement

of PW.1, Raju Khan (complainant and father of deceased), PW.2

Shakoor (uncle of the deceased) and PW.4 Babu Khan (maternal

uncle of the deceased) they were not present at the time when

occurrence took place in the house of appellant- Anwar. The

witness PW.5- Saiyed Moinudeen who was said to be present in

the house when incident took place along with Zaafar Ali, turned

hostile and no allegations are levelled by him against the accused

appellants.

As per statements of the doctor, deceased Bano died due to

unnatural death and as per postmortem report the cause of death

was asphyxia. We have perused the statements of PW.3- Sattar

Khan. The said witness is the independent witness and neighbour

of appellants. Upon perusal of the statement of said witness it is

obvious that in his presence, the accused appellant Niyaz ran was

sitting on cot outside the room and entered inside the room when

occurrence took place in his presence and accused appellant,

Anwar came out from the room where occurrence took place. The

following statement is given by the witness PW.3- Sattar Khan, in

the examination-in-chief: –

“——-

eSua s vius edku dh nhokj ij pd + j tkQj dks vkokt
yxkbZA ejs s vkokt yxkus ij dkbs Z ugha ckys kA fQj eSua s ckgj vkdj
eqyfteku dk xVs [kqyok;k] xVs tkQj us [kkys k FkkA ejs s edku ds vUnj
?kqlus ij gkftj vnkyr eqyfte fu;kt pkjikbZ ls mBdj vna j edku eas
(10 of 13)
[CRLA-199/2011]

Hkkxk] vuoj vna j dejs ls fudy dj vk;kA vkx dh yiVas pqYgs ds ikl
ls vk jgh Fkh] euaS s n[s kk fd pqYgs ds ikl vuoj dh iRuh ckuks ty jgh
Fkh] ckuks ml le; dkbs Z gjdr ugha dj jgh FkhA euaS s tkQj ekSyoh ls
dgk fd rqeus ;g D;k fd;k rks mlus dgk fd eqs irk ughA fu;kt o
vuoj nkus kas nhokjs ds ikl cSB x,] buds ?kj eas ,d ekSyoh vkSj cBS k Fkk
tks igys lk;s k gqvk FkkA”

Upon perusal of aforesaid statement, there is no question to

disbelieve the testimony of this witness because PW.3 Sattar Khan

is the independent witness and having no relation either with the

complainant party or with the accused party.

Although, out of 20 witnesses of prosecution, only 7 (seven)

witnesses are produced to prove the case of prosecution and out

of 7 witnesses, PW.1 Raju Khan, PW.2 Shakoor, and PW.4 Babu

Khan, are the close relatives of the deceased and they were not

present at the place of occurrence but there is no question to

disbelieve the testimony of PW.3- Sattar Khan, who was very

much present and categorically narrated the whole story and

corroborated the allegations levelled by prosecution. In our

opinion, on the basis of testimony of PW.3- Sattar Khan, there is

no doubt that prosecution has not proved its case beyond

reasonable doubt against the appellant, Anwar only for committing

offence u/s 304B, 498A and 316 of IPC, but upon consideration of

entire evidence, and statements of PW.3, we are of the opinion

that finding of guilt recorded against accused appellant, Niyaz @

Ayaz brother of appellant, Anwar, is not sustainable to hold him

guilty for committing offence under Sections 304B, 498A and 316

IPC only on the ground that he was present in the house at the

time when occurrence took place and he is family member and
(11 of 13)
[CRLA-199/2011]

real brother of the appellant, Anwar, husband of deceased, Bano.

Accordingly, we hold that the prosecution has failed to prove

any case against accused appellant Niyaz @ Ayaz beyond

reasonable doubt and benefit of doubt deserves to be given to the

appellant, Niyaz @ Ayaz.

So far as appellant No.2, Anwar is concerned, he is the

husband of the deceased, Bano. We have considered the prayer

made on behalf of appellant for reducing the sentence in the light

READ  Amaresh Matur S/O Late Sanna ... vs The State Of Karnataka on 8 September, 2011

of judgment rendered by Hon‟ble Apex Court in the case of Sunil

Dutt Sharma Vs. State (Govt. of NCT of Delhi) reported in (2014)

4 SCC 375. In the aforesaid judgment while considering the

identical facts, the Hon‟ble Apex Court reduced the sentence of life

imprisonment to ten years. The relevant paragraphs 16 and 17 of

the said judgment in the case of Sunil Dutt Sharma (supra) are

quoted herein below for ready reference:

“16. Applying the above parameters to the facts of the
present case it transpires that the death of the wife of the
accused-appellant occurred within two years of marriage.
There was, of course, a demand for dowry and there is evidence
of cruelty or harassment. The autopsy report of the deceased
showed external marks of injuries but the cause of death of
deceased was stated to be due to asphyxia resulting from
strangulation. In view of the aforesaid finding of Dr. L.T.

Ramani (PW-16) who had conducted the postmortem, the
learned Trial Judge thought it proper to acquit the accused of
the offence under Section 302 of the Penal Code on the benefit of
doubt as there was no evidence that the accused was, in any
way, involved with the strangulation of the deceased. The
proved facts on the basis of which offence under
Section 304-B of
the Penal Code was held to be established, while acquitting the
(12 of 13)
[CRLA-199/2011]

accused-appellant of the offence under Section 302 of the Penal
Code, does not disclose any extraordinary, perverse or diabolic
act on the part of the accused-appellant to take an extreme view
of the matter. Coupled with the above, at the time of
commission of the offence, the accused-appellant was about 21
years old and as on date he is about 42 years. The accused-
appellant also has a son who was an infant at the time of the
occurrence. He has no previous record of crime. On a
cumulative application of the principles that would be relevant
to adjudge the crime and the criminal test, we are of the view
that the present is not a case where the maximum punishment of
life imprisonment ought to have been awarded to the accused-
appellant. At the same time, from the order of the learned Trial
Court, it is clear that some of the injuries on the deceased,
though obviously not the fatal injuries, are attributable to the
accused-appellant. In fact, the finding of the learned Trial
Court is that the injuries No. 1 (Laceration 1″ x ½” skin deep
on the side of forehead near hair margin) and 2 (Laceration 1
½” x 1″ scalp deep over the frontal area) on the deceased had
been caused by the accused-appellant with a pestle. The said
part of the order of the learned Trial Court has not been
challenged in the appeal before the High Court. Taking into
account the said fact, we are of the view that in the present case
the minimum sentence prescribed i.e. seven years would also
not meet the ends of justice. Rather we are of the view that a
sentence of ten years RI would be appropriate.

17. Consequently, we modify the impugned order dated
4.4.2011 passed by the High Court of Delhi and impose the
punishment of ten years RI on the accused-appellant for the
commission of the offence under
Section 304-B of the Penal Code.
The sentence of fine is maintained. The accused-appellant who
is presently in custody shall serve out the remaining part of the
sentence in terms of the present order.”

(13 of 13)
[CRLA-199/2011]

Upon consideration of the fact that accused appellant, Anwar is

having a son and as per evidence on record, it is not rarest of rare

case in which maximum sentence prescribed for offence u/s 304B

IPC is required to be passed, therefore, the sentence awarded to the

accused appellant, Anwar can be reduced. In view of above, the

instant criminal appeal is partly allowed, the conviction and sentence

passed against accused appellant, Niyal @ Ayaz vide judgment dated

21.02.2011 passed by Addl. Sessions Judge (FT) No.2,

Hanumangarh, HQ Nohar, qua appellant No.1 Niyaz @ Ayaz is

hereby quashed and accused appellant, Niyaz @ Ayaz is hereby

acquitted from the charges levelled against him. His bail bonds are

hereby discharged. He is not required to surrender.

So far as appellant No.2 Anwar is concerned, his conviction for

the offences u/s 304B, 498A and 316 of IPC is hereby maintained,

however, in view of the judgment in the case of Sunil Dutt Sharma

(supra), the sentence of life imprisonment imposed against him for

offence u/s 304B IPC is hereby reduced to ten years‟ rigorous

imprisonment.

Keeping in view, however, the provisions of Section 437A

Cr.P.C. the accused appellant, Niyaz @ Ayaz, is directed to forthwith

furnish personal bonds in the sum of Rs.20,000/- and a surety bond

in the like amount, before the learned trial court, which shall be

effective for a period of six months to the effect that in the event of

filing of Special Leave Petition against the judgment or for grant of

leave, the appellants, on receipt of notice thereof, shall appear

before Hon’ble the Supreme Court.

(MANOJ KUMAR GARG)J. (GOPAL KRISHAN VYAS)J.
DJ/-

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