Madras High Court Sadat @ Sadat Ali-vs-State By Inspector Of Police on 23 October, 2009
DATED: 23.10.2009
CORAM:
THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN
Crl.A.No.791/2002
Cr.MP.No.4957/2002
1.Sadat @ Sadat Ali
2.Fazil
3.Regana Appellants
Vs
State by Inspector of Police
Vellore North, Law and Order
Vellore District Respondent
Prayer:- This Criminal Appeal is filed against the judgement of the learned Additional District and Sessions Judge, Vellore District at Vellore (FTC) passed in SC.No.112/1998 dated 17.5.2002, convicting the Appellants for the offences under Section 304(B) of IPC and sentencing them to undergo seven years Rigorous Imprisonment. For Appellant : Mr.K.S.Rajagopalan
For Respondent : Mr.Hasan Mohammed Jinnah, APP
JUDGEMENT
This Criminal Appeal is filed against the judgement passed by the learned Additional District and Sessions Judge, Vellore in SC.No.112/1998 dated 17.5.2002, convicting the Appellants/A1 to A3 herein for offence punishable under Section 304(B) of IPC and sentencing each of them to undergo seven years Rigorous Imprisonment.
2. The case of the Prosecution is as follows:-
A1 is the husband of the deceased Sardaz. A2 and A3 are the elder sister and brother of A1. Alla Baksh, PW.2, who is the father of the deceased, gave his daughter Sardaz @ Nooruaashmi in marriage to the 1st accused nearly four years prior to 8.11.1994 as per the Muslim Customs and Traditions. The marriage was performed with the consent of both the families and on the marriage, PW.2 presented a gold chain weighing 2 sovereigns, a ring weighing one sovereign to the 1st accused and a necklace weighing four sovereigns and an ear stud weighing 2 sovereigns to his daughter along with the household articles and also a cash of Rs.5000/-. After the marriage, the deceased Sardaz lived with her husband/A1 and his sister and brother/A2 and A3 jointly. Within six months from the date of her marriage, A2 and A3 compelled the deceased to get money from her parents and as she was unable to meet their demand, she had come to her parent’s house.
3. In the mean while, A1 went to Saudi Arabia without informing the deceased and he was working there. In his absence, A2 and A3 prevented the deceased from entering into her matrimonial home without the jewels. Thereafter, PW.2 sent his daughter with jewels. In the absence of A1, A2 and A3 had threatened the deceased and harassed her in every way and forced her to part with the jewels and disposed of the same either pledging or selling away and spent away the money. After two years, A1 returned from Saudi Arabia and started a tailoring shop, but there was no sufficient income. Hence, A1 again decided to go to Saudi Arabia, for which he needed money and demanded the deceased to get Rs.10,000/- from her father.
4. It is stated by the mother of the deceased/PW.3 that the deceased told them not to give money to her husband, because he had not earned any money while he was working in Saudi Arabia. Since there was persistent demand from A1 to get money from her parents, the deceased complained to the Janath Muthavalli asking him to talk to the parents on both sides to ensure their joint living. On considering the pathetic situation, PW.2 rented a house and provided necessary facilities for the joint living of his daughter with A1. According to PW.3, in spite of the said arrangement, there was consistent demand from A1 for Rs.10,000/-, which made the deceased to commit suicide. On 8.11.1994 at 11.00 p.m. she poured kerosine upon her and set fire to herself. On hearing her alarm PW.1, who is the neighbour rushed to the spot along with A1 and after extinguishing the fire, took her to the Government Hospital at Vellore. PW.1 enquired her as to why she had taken such an extreme step and the deceased told him that her husband harassed her by demanding dowry and therefore, she committed suicide.
5. PW.11, Dr.Dayalan attached to the Government Hospital, Vellore admitted the deceased for treatment on 8.11.1994 at about 10.45 p.m. and found 90% burn injuries on her and intimated the same to the police under Ex.P8 and on receipt of such intimation, PW.8 Head Constable reached the PS-II Ward of the said Hospital, in which the deceased was admitted and recorded her statement at 12.30 p.m under Ex.P9 in the presence of her parents. On the basis of Ex.P9, PW4, Sub Inspector of Police, Vellore North Police Station had registered a case in Cr.No.1016/1994 under Section 498A of IPC under Ex.P15.
6. PW.15, the Inspector of Police took up investigation and went to the place of occurrence and prepared observation magazar under Ex.P4 in the presence of Ayub Khan and Syed Khan and a rough sketch under Ex.P16 and recorded the statements of PW.2 and 3 in the presence of PW.1 neighbour and another and seized material objects viz. plastic can MO.1, a piece of burned cloth MO.2 and a match box MO.3 under Ex.P5.
7. On 9.11.1994 at 1.00 a.m the duty Medical Officer sent an intimation under Ex.P10 to the learned Magistrate to record the dying declaration of the deceased. The dying declaration was recorded by PW.10, the then learned Judicial Magistrate IV, Vellore under Ex.P11.
8. On 11.11.1994 at 2.30 p.m. PW.15 arrested all the three accused and sent them for remand under Ex.P18 and later they were enlarged on bail.
9. On 3.12.1994, PW.15 examined the former Muthavalli Abdul Kafar as PW.7, and Alla Baksh, Rahman and secured letters under Exs.P2, 3, 7 and 6 written by the deceased Sardaz to the Jamath and the Wedding Invitation under Ex.P1 and recorded their statements. PW.15 also examined Grade I Police Constable Janardhani as PW.13, who handed over the body of the deceased for postmortem to the Government Hospital, Vellore along with a letter of request from Revenue Divisional Officer. Postmortem was done by a team of doctors including PW.2 Dr.Chandra and Dr.Bharani.
10. The Postmortem Certificate Ex.P14 reveals thus:-
"Regarding the body of a female aged about 26 years, named Sardaz.
Requisition received at 12.55 p.m. on 16.11.1994 from the Sub Divisional Executive Magistrate, Revenue Divisional Officer, Vellore, with his Crime o.1016/94 dated 16.11.94.
Body in charge of Police Constable NO.3080 named Tmt.Janarthani.
Identification and caste mark:
1. Could not be identified due to extensive burns.
The body was first seen by the undersigned at 2.10 p.m. on 16.11.1994.
Its condition then was Rigor mortis present all the 4 limbs.
Post Mortem commenced at 2.10 p.m. on 16.11.1994
Appearance found at the post mortem:-
The general appearance of the body of a female identified by the ICPC (?) do agree with the police report.
Examination second degree burns web areas of shock all over the body except scalp report of both soles. Tongues within the mouth. Heart 300 grams Right Lung 300 grams, Left Lung 300 grams congested.
Hyoid Bone intact.
Stomach contains brown colour liquid about 100m.
Liver 90 grams congested.
Spleen 100 grams congested.
Kindneys 150 grams each congested.
Bladder empty.
Uterus Normal size empty.
Brain 900 grams congested.
Postmortem concluded at 3.10 p.m. on 16.11.1994. The deceased would appear to have died about 12-18 hours prior to post mortem due to Ephicaemae. Due to external burns."
11. In the meanwhile, PW.15 received an intimation on 16.11.1994 that the deceased died on 15.11.1994 in the night hours and he recorded the statement of the Doctor and the Head Constable, who registered the FIR and also the Sub Inspector of Police and the case was altered into one under Section 304B of IPC. Since the case was altered into one under Section 304B of IPC, the Deputy Superintendent of Police, Vellore had taken investigation and verified the investigation done by the Inspector of Police, which was found to be in order.
12. After the alteration of the offence, they had been arrested on 16.11.1994 under arrest card Ex.P20 and they were sent for remand under Ex.P21. He recorded the statement of the Doctors, who conducted postmortem and from him, PW.17 Sivaprakasam took up the investigation and he had obtained inquest report Ex.P23 and after completing the investigation, charge sheet against all the three accused was laid under Section 304B of IPC.
13. To establish the case of the Prosecution, 17 witnesses have been examined and Ex.P1 to P23 and MO.1 to MO.3 were marked. On completion of evidence, in order to give an opportunity to the accused, they were questioned under Section 313 of Cr.P.C as to the incriminating circumstances found in the evidence of the prosecution witnesses and the accused flatly denied the same as false and no witnesses have been examined on the side of the appellants.
14. Mr.K.S.Rajagopalan, the learned counsel for the Appellants contended that the Prosecution miserably failed to establish that the deceased was subjected to cruelty on the crucial day or at any time immediately before the occurrence and there is absolutely no acceptable evidence to show that any of the Appellants/accused herein made a demand of dowry soon before the death of the deceased. He would submit referring to the evidence of PW.2 the father of the deceased that the 1st Appellant had not made any demand of dowry. The learned Magistrate who recorded the dying declaration has not stated or certified that the deceased was in a fit state of mind to speak in the light of the evidence of PW.11. Dr.Dayalan, who admitted the deceased in the Government Hospital, Vellore had spoken to the fact that the patient’s general consciousness was poor and found drowsy.
15. The learned counsel for the Appellants drew the attention of this court to the evidence elicited during the cross examination of the Doctor PW.11 that he cannot say without seeing the case sheet as to whether the deceased was in an unconscious state till her death or regained consciousness. He would submit that in the absence of case sheet being produced before the court, it cannot be said that the deceased was in a fit mental condition at the time of recording of dying declaration.
16. The learned counsel pointed out to Exs.P2, P6 and P7 dated 19.6.1994 addressed to the Muthavalli more specifically Ex.P6 which was written six months prior to the suicide committed by the deceased, wherein she has asserted that her husband was the only person looking after her in the advanced stage of the pregnancy as her parents had disowned her and further it is her definite statement that her husband requested her to get a sum of Rs.20,000/ as a loan from her father and nowhere she has whispered that her husband ever ill treated her or put her into harassment demanding money or jewels. He would submit that the contradictions and discrepancies in the evidence of PW.3 are vital and they merit consideration as the court can infer improvements and embellishments on a bare perusal of her evidence. The learned counsel further submitted that PW.2, the father of the deceased in his evidence has given a definite version that the 1st Appellant never demanded any money either at the time when he left for Saudi Arabia or at a later point of time when he expressed his intention to go to Saudi Arabia to earn his livelihood.
17. On the contrary, Mr.Hasan Mohammed Jinnah, the learned Additional Public Prosecutor for the Respondent supported the judgement of the court below, placing reliance on the dying declaration of the deceased especially the one given to the learned Magistrate which according to him does not suffer from any infirmity.
18. As per the case of the Prosecution, the occurrence is said to have taken place on 8.11.1994 at about 10.30 p.m. at the residence of her husband. The Prosecution strongly relied on the evidence of PWs.1 to 3, the dying declaration Ex.P11 given to the deceased to PW.10, the learned Judicial Magistrate V, Vellore, Ex.P9 the statement given by the deceased at 12.30 night on 8.11.1994 to PW.8, the Head Constable attached to Vellore South Police Station and the oral statements said to have been made by the deceased to PWs.1 to 3.
19. On a careful perusal of the evidence of PW.2, in the light of version made by him in his chief examination, it is apparent that he is the person who knows about the entire episode of events. The testimony of PW.3 stands thoroughly discredited as it is full of improvements and is not consistent with the statement given by the Police. She has made deliberate improvements and there is a material contradiction even regarding the oral declaration allegedly made by the deceased to PWs.2 and 3, which affects her entire credibility. For instance, PW.2 would state that when they enquired the deceased as to why she had set fire to herself, the deceased had replied to them as below:- "vt;tst[jhd; eP’;fs; bfhLg;gPh;fs;/ vt;tst[jhd; ehd; bghWj;Jf;bfhs;ntd;/ vdf;F ntW tHp bjhpatpy;iy/ ehd; jP itj;JbfhSj;jpf;bfhz;nld; vd;W brhd;dhs;/@
Whereas PW.3 would give a different version as to the statement made by the deceased as below:-
@vd; ehj;jdhUk;. K:j;jhUk; vd; fzthplk; brhd;djhy; vd;Dila g[Uc&d; vd;id mof;fpwhh; vd;W vd; kfs; vd;dplk; Twpdhh;fs;/ mjdhy; ehnd Cw;wpf;bfhz;nld; vd vd; kfs; Twpdhs;@/
20. It is not the case of the Prosecution that at the instigation of A2 and A3, A1 beat her and that is why she immolated herself. She has stated that when the deceased was residing with them at their residence, A1 demanded the jewels which is again not the case of the Prosecution. Again for sending the 1st accused to Saudi Arabia, A2 and A3 demanded the deceased to get money from Pw.2 and PW.3 which according to her was disclosed by the deceased, whereas PW.2 has categorically stated that the 1st accused never demanded money from him after their marriage and in fact, he would depose that till A1 returned from Saudi Arabia, no problem had arisen with regard to money or jewels. He had further deposed that even when A1 was taking efforts to go to Saudi Arabia for the second time, he did not demand financial help from him. It is his categorical version that even for the first trip to Saudi Arabia, A1 had taken money from some one and never demanded any money.
21. Admittedly, six months prior to her death, A1 and the deceased had set up a separate living arrangement and there is no evidence that A2 and A3 have ever visited them after their separate establishment and demanded money or instigated A1 to make such demand nor there is any specific instance wherein A1 to A3 have caused harassment to the deceased or A2 and A3 instigated A1 to demand any money. On a close scrutiny of the testimony of PW.2 and 3, it does not spell out any circumstances to show that there was any cruelty or harassment in connection with the demand of dowry soon before her death.
22. In the case of Biswajit Halder alias Babu Halder and others Vs. State of WB [2008-1-SCC-Cri-172], the Honourable Supreme Court has held that the deficiency in evidence regarding any cruelty or harassment in connection with the demand of dowry would prove fatal for the case of the Prosecution and that apart, mere evidence of cruelty and harassment is not sufficient to bring in application of Section 304B of IPC and in addition, it has to be shown that such cruelty or harassment was in connection with the demand for dowry.
23. The Honourable Supreme Court in the case of Kamesh Panjiyar Vs. State of Bihar [2005-2-LW-Crl-794] has held that determination of the period which can come within the term ‘soon before’ is left to be determined by the Courts, depending upon facts and circumstances of each case. But, however, the Honourable Supreme Court indicated in the decision stated supra that ‘soon before’ would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. Their Lordships held as follows:- "15. A conjoint reading of Section 113B of the Evidence Act and Section 304B of IPC shows that there must be material to show that soon before her death, the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the ‘death occurring otherwise than in normal circumstances’. The expression ‘soon before’ is very relevant where Section 113B of the Evidence Act and Section 304B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by Prosecution. ‘Soon before’ is a relative term and it would depend upon circumstances of each case and no strait jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113B of Evidence Act. The expression ‘soon before her death’ used in the substantive Section 304B IPC and Section 113B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression ‘soon before’ is not defined. A reference to expression ‘soon before’ used in Section 114. Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods soon after the theft, is either the thief has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term ‘soon before’ is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however to indicate that the expression ‘soon before’ would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live link between the effects of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.
16. Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman is required to be established in order to bring home the application of Section 498A IPC. Cruelty has been defined in the Explanation for the purpose of Section 498A. Substantive section 498A IPC and presumptive Section 113A of the Evidence Act have been inserted in the respective statutes by Criminal Law (Second Amendment) Act, 1983. It is to be noted that Sections 304B and 498A IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the Sections and that has to be proved. The Explanation to Section 498A gives the meaning of ‘cruelty’. In Section 304B there is no such explanation about the meaning of ‘cruelty’. But having regard to common background to these offences it has to be taken that the meaning of ‘cruelty’ or ‘harassment’ is the same as prescribed in the Explanation to Section 498A under which ‘cruelty’ by itself amounts to an offence. Under Section 304B it is ‘dowry death’ that is punishable and such death should have occurred within seven years of marriage. No such period is mentioned in Section 498A. If the case is established there can be a conviction under both the sections. (See Akula Ravinder and others Vs. The State of Andhra Pradesh [AIR-1991-SC-1142]. Period of operation of Section 113B of the Evidence Act is seven years, presumption arises when a woman committed suicide within a period of seven years from the date of marriage."
24. Therefore, in view of the above said settled principle of law laid down by the Honourable Supreme Court in respect of the case under Section 304B of IPC, the Prosecution is bound to prove the existence of a proximate and live-link between the effects of cruelty based on dowry demand and the concerned death. The evidence of PW.2 shows that there was no complaint whatsoever as the deceased has not visited the house of PW.2 after separate establishment nor the 1st accused demanded any money from PW.2 directly and therefore, it is crystal clear that there is absolutely no materials available on record to the effect that soon before her heath, the deceased was subjected to cruel treatment, which drove her to take the extreme step of putting an end to her life.
25. The other evidence that was strongly relied upon by the Prosecution is Ex.P11 the dying declaration recorded by PW.10 the learned Magistrate on 9.11.1994 at about 1.05 a.m. For placing reliance over the dying declaration, a strict screening of the statement is required to be made, because it is not a statement on oath and its veracity cannot be tested by cross examination. It should therefore be ensured that the dying declaration made by the deceased is of such a nature as to inspire confidence of the court regarding its correctness and further that it is not a result of tutoring or prompting. It should also be proved by the testimony of the learned Magistrate that the declarant was fit to make the statement and even without examination by the Doctor, the declaration can be acted upon. A certification by the Doctor is essentially a rule of caution and therefore, the voluntary and truthful nature of the declaration can be established otherwise.
26. When the declarant is inpatient in the Hospital, it is the duty of the learned Magistrate to record the dying declaration in the presence of the Doctor after duly certified by him that the declarant was conscious and in a fit condition to make the declaration. In this case, there is nothing to indicate that the learned Magistrate has satisfied himself by putting some questions to the deceased that she was in a fit state of mind. Undoubtedly, it is essential to show that the dying declaration was made when the maker was in a fit state of mind to make such a declaration.
27. In this case, sufficient doubt is thrown on the physical condition of the deceased more particularly in the light of evidence of PW.11 Dr.Dayalan who has stated that she was found drowsy and general consciousness was poor thereby meaning that she was not conscious. She had sustained 90% of burn injuries on face, chest and other vital parts. The said Doctor has admitted that he has not noted the pulse rate in the Accident Register. He has stated that only on seeing the case sheet, it can be said as to whether she died in an unconscious state or regained consciousness. But the case sheet has not been filed before the trial court. It was not stated in the dying declaration that the contents were read over to the deceased who admitted its correctness. In such circumstances, the Doctor who is said to be present at the time of recording of dying declaration is the only competent witness to speak about her ability to speak at the time of recording of dying declaration. The same applies to the statement Ex.P9 recorded by the Head Constable at 12.30 p.m. on 9.11.1994. In the said physical condition of the deceased, it is highly doubtful that the statement contained in Ex.P9 is the actual words used by the deceased in describing the incident. In the absence of any material or evidence to show that the deceased regained consciousness sometime later and was in fit state of mind to speak, the dying declarations recorded by the learned Judicial Magistrate and the Head Constable become doubtful and cannot be solely relied upon.
28. That apart, the oral statements made to PW.1 to PW.3 not only gave two conflicting versions, but also in consistent with each other. In this case, there are more than one dying declaration and they are inconsistent with each other in material particulars. It is no doubt true that the deceased who was in a great stress and mental agony as she had suffered extensive burns is bound to commit such omission or addition to each of the witness in the narration, but not in material part of the incident. Keeping in view the cumulative effect of the circumstances the dying declarations without examining the Doctor who had certified regarding the mental condition of the deceased cannot be acted upon. In view of the above said reasons, I am of the considered view that the Prosecution has failed to bring home the guilt of the accused beyond reasonable doubt.
29. For the reasons stated above, this court is left with no other alternative except to allow the appeal and to set aside the conviction and sentence imposed upon the appellants by the court below. Accordingly, this Criminal Appeal is allowed. The conviction and sentence imposed upon the Appellants by the learned Additional District and Sessions Judge, Vellore District at Vellore (FTC) in SC.No.112/1998 dated 17.5.2002 are set aside. The bail bond executed by the appellants shall stand canceled. 23.10.2009
Srcm
To:
The Public Prosecutor, High Court,
Madras
