Smt. Sanno vs State Of U.P. on 9 May, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved

A.F.R.

Case :- CRIMINAL APPEAL No. – 1982 of 2006

Appellant :- Smt. Memoona Others

Respondent :- State Of U.P.

Counsel for Appellant :- S.A. Gilani, S.A. Ansari, A.C.

Counsel for Respondent :- Govt. Advocate

Connected with

Case :- CRIMINAL APPEAL No. – 1804 of 2006

Appellant :- Smt. Sanno

Respondent :- State Of U.P.

Counsel for Appellant :- Santosh Tripathi, Smt. Mandvi Tripathi

Counsel for Respondent :- Govt. Advocate

Hon’ble Mrs. Vijay Lakshmi, J.

As both these appeals are directed against the same impugned judgment dated 30.3.2006, arising out of the same case crime number and are related to the same occurrence, both are being disposed of by this common judgment.

Both the aforesaid appeals have been preferred against the judgment and order dated 30.3.2006 passed by Additional District and Sessions Judge, Court No. 6, Ghaziabad in Session Trial No. 251 of 1999 (State Vs. Wahid and others) whereby convicting the appellants under Sections 498-A and 304-B I.P.C. and sentencing them under Section 304-B I.P.C. with rigorous imprisonment for 10 years R.I. and for 3 years R.I. under Section 498-A I.P.C. and fine of Rs. 10,000/- with default stipulations.

Heard Mohammad Shahanshah Alam Ansari, learned Amicus Curie on behalf of the appellants and Sri Shanti Prakash Patel, learned A.G.A. for the State. Perused the record.

The facts, in brief, are that one Sajeela Begum lodged a first information report on 26.5.1998 at 1.45 A.M. at Police Station Hapur Kotwali, district Ghaziabad against the husband of her daughter and her in laws namely Wahid Ali (husband), Saleem Khan (father-in-law), Memuna (mother-in-law), Naseem (Jeth), Shanno (Jethani) and Kafeel Ahmad (Phupha/mediator of the marriage) mentioning therein that she had performed the marriage of her daughter Tarannum (deceased) on 7.12.1997 with Wahid Ali, as per Muslim rites and rituals, giving dowry according to her capacity. Despite that, the in laws and the husband of her daughter used to treat her with cruelty asking for additional dowry. In the afternoon of 24.5.1998 at about 3.00 P.M., they administered some poisonous substance to her by mixing it in the water, due to which she became ill and was admitted to Khan Nursing Home at 3.30 P.M. on the same day where she expired in the midnight of 25/26.5.1998 at 1.45 A.M. On the basis of aforesaid report which was lodged immediately after the death of Tarannum Bano, criminal case against all the accused persons was registered as Case Crime No. 252 of 1998, under Section 304B and 498A I.P.C. and ¾ of D.P. Act, Police Station Hapur Kotwali, district Ghaziabad and the police started the investigation.

During her treatment, the doctor attending her had recorded her statement, which after her death was treated as her dying declaration. The aforesaid statement of the deceased recorded by Dr. J.A. Khan on 25.5.1998 at 9.10 P.M. is reproduced as under :-

“Certified that patient is fully conscious and is able to give her statement.

;g mYVh vkuk dc ls ‘kq: gqbZ gSa

dy esjh lkl us dksbZ rhu cts BaMk ikuh ihyks dg dj ikuh fiyk;k Fkk mlds dqN gh nsj ckn esjh th fepykus yxk o mYVh vkuk ‘kq: gks xbZ mfYV;ksa ds fy, esjs HkkbZ tkfdj us vkids ;gkW dy HkrhZ djk fn;kA ejht ;g Hkh dgk fd eqs ‘kd gS fd esjh lkl us ikuh esa dksbZ pht fiykbZ gSA

Certified this Pt. Smt Tarannum LTI of Tarannum Rani

Rani Remained fully concious Sd. Illegible

during her statement. 25-8-98

Sd. Illegible Dr. J.A. Khan

Dr. J.A. Khan”

The post-mortem of the deceased was conducted on 26.5.1998. As the cause of death could not be ascertained, the viscera was preserved and was sent for chemical analysis. The viscera report was received showing the presence of Organo Phosphoras Insecticide in it. The statements of the witnesses were recorded under Section 161 Cr.P.C., the site plan was prepared and after conclusion of the investigation, the I.O. submitted charge-sheet against all the accused persons.

As the matter was triable by the court of sessions, it was committed to the Sessions Court, where the charges under Sections 498-A and 304-B I.P.C. were framed against all the accused persons.

At the very outset, it is pertinent to mention that the father-in-law, Saleem expired during trial, therefore, the trial against him got abated. The mother-in-law Maimuna expired during the pendency of this appeal hence vide order dated 7.3.2017 passed by this Court, the appeal against Maimuna got abated. The accused Kafeel Ahmad (Phupha) was not found guilty by the learned trial court and accordingly he was acquitted.

Now only the remaining appellants are before this Court, claiming their innocence and praying for acquittal.

Learned counsel for the appellants (amicus curie) has challenged the legality and correctness of the impugned judgment mainly on the following grounds :-

(i) the appellants are innocent and they have been falsely implicated in this case due to the reason that a general tendency has developed now a days to implicate the entire family members with false allegation of dowry demand and harassment in connection thereof.

(ii) The Jeth and Jethani are not the direct beneficiaries of the dowry and both of them have no motive to commit the murder of the deceased. Learned counsel has placed reliance upon the judgment of the Hon’ble Apex Court reported in (2012) 10 Supreme Court Cases 741; Geeta Mehrotra and another versus State of Uttar Pradesh in support of his contention.

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(iii) The postmortem examination report of the deceased clearly shows that no ante mortem injury has been found on her body. Besides it, there is no evidence with regard to the fact that soon before her death, she was treated with cruelty.

(iv) All the witnesses are relatives of the deceased and are highly interested witnesses

(v) The parents of the deceased were informed promptly after the death of deceased Tarannum, who attended the last rites of the deceased.

(vi) The postmortem report shows that the deceased was pregnant at the time of her death as a foetus was found by the doctor in her womb. Thus, there was no occasion for the family members to administer poison to the deceased who was going to deliver the first child in the family, bringing happiness to all of them.

(vii) The deceased being literate and her husband being illiterate was unhappy with her marriage, due to which she committed suicide by consuming some obnoxious substance in a state of utter despair and frustration.

(viii) All the accused persons were present at the hospital with the deceased at the time of her death.

(ix) In the dying declaration, the deceased has said nothing against any of the family members except her mother-in-law Memuna and that too not in specific terms but only a suspicion has been expressed by her against Memuna.

(x) Even if assuming, for the sake of arguments, the story of administering poisonous substance to the deceased to be true, the role of administering poison has been specifically assigned to Memuna (mother-in-law) who has died and against whom the appeal has already been abated.

(xi) Learned amicus curie has also drawn the attention of this Court to the following statements of the witnesses to cast a shadow of doubt on the truthfulness of prosecution story.

The statement of P.W. 1-Sajeela shows that she has admitted the fact that Kafeel Ahmad (Phupha) was innocent and he was unnecessarily implicated in this case. Her statement in this regard is as under :-

“;g lgh gSa fd dQhy us u dHkh esjh csVh ls ngst ekaxk u gh /kedk;k vkSj u gh ekjk ihVkA”

P.W. 4, Reshma, sister-in-law (Bhabhi) of the deceased has also admitted the fact about the innocence of co-accused Kafeel Ahmad as under :

—dQhy vgen us dHkh gekjh yM++dh ls dksbZ ekjihV ugh dh uk gh dksbZ ngst ek¡xkA—

Learned counsel has also drawn the attention of this Court to the following statement of P.W.2-Nafeesa, the aunt of the deceased to show that the family members of deceased were timely informed and they were present at the time of her death :-

“tc ge rjUuqe dh chekjh ds ckjs esa lqudj rjUuqe ds llqjky x;s rks okfgn o blds ?kjokyksa us gesa dgk fd tkvks [kku uflZx gkse esa tgka geus mls Hkjrh dj fn;k gSA nwljs fnu jkr ds 12 cts rjUuqe dh e`R;q gks xbZA”

Learned counsel has contended that the aforesaid statement clearly shows that the appellants had admitted the deceased in the hospital. The attention of this Court was also drawn to the following statement of P.W. 4-Reshma (sister-in-law/Bhabhi) of the deceased :

….;g lgh gSa fd rjUuqe dh llqjky okyksa ds ;gka tc ge tkrs Fks rc pk; ikuh dh [kkfrj djrs FksA———

—–mYVh rjUuqe ds gksus dh [kcj nsus okfgn dk nksLr vk;k FkkA—-

Learned counsel has contended that on a careful scrutiny of the entire evidence lead by the prosecution, it is clearly evident that the appellants have absolutely no role in the alleged occurrence. However, the court below without proper appreciation of the evidence, has convicted the appellants only on the basis of surmises and conjectures, therefore, the impugned judgment is liable to be set aside.

Per contra learned A.G.A. has vehemently opposed the aforesaid arguments by contending as follows : –

(I) there is no ground for false implication of the appellants

(II) The F.I.R. has been lodged promptly without any delay which rules out the possibility of any consultation and deliberation.

(III) In her dying declaration the deceased has specifically apprehended about the role of Maimuna (mother-in-law) by stating that she mixed the poison in water and gave her to drink it.

(IV) The husband was under an obligation to take care of her pregnant wife but he failed to do so.

(V) The witnesses have categorically stated that the appellants Jeth and Jethani also used to harass the deceased for dowry, there is no ground to disbelieve the statement of the prosecution witnesses.

(VI) By virtue of the presumption created by Section 113-B of Indian Evidence Act, the burden was on the accused persons to prove their innocence but they failed to discharge it, hence the court below rightly convicted them

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On the aforesaid ground learned A.G.A. has contended that the appeal being devoid of merit is liable to be dismissed and the impugned judgment of conviction deserves to be confirmed.

Considered the rival submissions advanced from both sides and perused the evidence available on record.

In so far as the presumption against the accused under Section 113-B of Indian Evidence Act is concerned, the Hon’ble Apex Court in a recent case Baijnath others Vs. State of Madhya Pradesh; (2017)1 SCC 101 has reiterated the legal position as under : –

“31. Section 113B of the Act enjoins a statutory presumption as to dowry death in the following terms:

“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 purpose of this section, “dowry death” shall have the same meaning as in section 304B of the Indian Penal Code (45 of1860)”

32. Noticeably this presumption as well is founded on the proof of cruelty or harassment of the woman dead for or in connection with any demand for dowry by the person charged with the offence. The presumption as to dowry death thus would get activated only upon the proof of the fact that the deceased lady had been subjected to cruelty or harassment for or in connection with any demand for dowry by the accused and that too in the reasonable contiguity of death.

Such a proof is thus the legislatively mandated prerequisite to invoke the otherwise statutorily ordained presumption of commission of the offence of dowry death by the person charged therewith.

36. This Court while often dwelling on the scope and purport of Section 304B of the Code and Section 113B of the Act have propounded that the presumption is contingent on the fact that the prosecution first spell out the ingredients of the offence of Section 304B as in Shindo Alias Sawinder Kaur and another Vs. State of Punjab – (2011) 11 SCC 517 and echoed in Rajeev Kumar Vs. State of Haryana – (2013) 16 SCC 640. In the latter pronouncement, this Court propounded that one of the essential ingredients of dowry death under Section 304B of the Code is that the accused must have subjected the woman to cruelty in connection with demand for dowry soon before her death and that this ingredient has to be proved by the prosecution beyond reasonable doubt and only then the Court will presume that the accused has committed the offence of dowry death under Section 113B of the Act. It referred to with approval, the earlier decision of this Court in K. Prema S. Rao Vs. Yadla Srinivasa Rao – (2003) 1 SCC 217 to the effect that to attract the provision of Section 304B of the Code, one of the main ingredients of the offence which is required to be established is that “soon before her death” she was subjected to cruelty and harassment “in connection with the demand for dowry”.

Now reverting back to the facts of the present case, the prosecution case is that the deceased was administered poison by her mother in law Memuna, whereas the defence case is that due to frustration of being married to an illiterate and jobless person, the deceased committed suicide.

Both the above views are reasonably possible view.

With regard to cases, where two views are reasonably possible, the Hon’ble Apex Court in the landmark case of Sharad Birdhichand Sarda Vs. State of Maharashtra; AIR 1984 SC 1622 has held as under : –

“Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other in his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence.

At any rate, taking the worst view of the matter on the evidence in this case two possibilities are clearly open-

(1) that it may be a case of suicide, or

(2) that it may be a case of murder

and both are equally probable, hence the prosecution case stands disproved.”

In the aforesaid case of Sharadchand Sarda (supra) the Apex Court has also laid down the law in respect of cases involving death by poison as follows :-

“Before a person can be convicted of murder by poisoning, it is necessary to prove that the death of the deceased was caused by poison, that the poison in question was in possession of the accused and that poison was administered by the accused to the deceased. There is no direct evidence in this case that the accused was in possession of Potassium Cyanide or that he administered the same to the deceased.”

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A careful perusal of the evidence available on record in the instant case shows that the prosecution case is based mainly on (i) dying declaration of the deceased and (ii) the statements of the witnesses, who are all close family members of the deceased, all of whom have supported the prosecution case during their testimony.

In so far as the trustworthy of dying declaration in this case is concerned, its legality has been challenged by learned counsel for the appellants on the ground that though it is stated by the witnesses that the deceased had passed the High School, however, in the dying declaration her thumb impression has been affixed, which cast a shadow of doubt on it as she could have made her signature under her statement. The second ground on which its credibility has been assailed is that the dying declaration has not been recorded by any Magistrate or in the presence of any Magistrate but it has been recorded by Dr. J.A. Khan alone, when no one was present, therefore, it does not fulfill the requirements of a lawful dying declaration.

Under almost same facts and circumstances the Hon’ble Apex Court in State of U.P. Vs. Shishupal Singh; 1994 Cr. L. J. 617 (SC) has held as under :

“Dying declaration recorded by Magistrate was neither signed by deceased, nor contained date and time of its recording, and no explanation was given that deceased was not in a position to sign it – such dying declaration cannot form the basis of conviction.”

In Ramliaben Vs. State of Gujarat; (2002)7 SCC 56, where the Doctor’s certificate merely stated that the patient was conscious, it was held that “it was not enough. The doctor should have certified about the mental fitness of the deceased to make the statement. So, on facts the Supreme court held that the dying declaration of the deceased who had sustained 90% burn injuries was neither trustworthy nor reliable.”

In the present case too, the Doctor has only stated that the patient is conscious. He has not written anything about mental fitness of the deceased.

Even if assuming it as a valid dying declaration, for the sake of arguments, a perusal of it clearly shows that only the mother-in-law Memuna has been named by the deceased, against whom too, only an apprehension has been expressed by her with the words that she has a doubt that her mother-in-law had mixed something in her water. Thus the deceased has only expressed suspicion against Memuna and has not specifically stated anything against her. It is settled law that suspicion, however strong, cannot take the place of evidence. Even in case some one is to be blamed for the death of the deceased, it is only Memoona, who is no more and the appeal against whom has already been abated.

All the witnesses produced by the prosecution have admitted the fact that the husband of the deceased Wahid was totally illiterate and he used to earn his livelihood by making clay stove (Angeethi), whereas the evidence reveals that the deceased had passed High School. Under these circumstances the story of dowry demand appears unreliable because normally the dowry is demanded on the basis of earnings of a boy. It is also noteworthy that all the winesses have made a general allegation against all the family members including ‘Jeth’, ‘Jethani’ and ‘Phupha Sasur’ of the deceased and the witnesses in their cross examination have admitted that Phupha never demanded any dowry and never ill treated Tarannum. The witnesses have also admitted that Memoona was an old lady who used to do all the house hold work. Also, there are apparent contradictions in the statements of the witnesses making their testimony unworthy of credit.

All the witnesses are the close family members of the deceased and a close scrutiny of their statements reveals that there is no reliable evidence regarding the fact that the deceased was subjected to cruelty soon before her death.

In view of the facts and circumstances of the case, it cannot be said that the prosecution has discharged its initial burden by showing the existence of the essential ingredients of the offence under Section 304-B I.P.C. Therefore, the impugned judgment of conviction requires interference by this court and the findings of the conviction recorded by the trial court are liable to be set aside and the appeal deserves to be allowed.

The appeal is allowed. The impugned judgment and order dated 30.3.2006 passed by Additional District and Sessions Judge, Court No. 6, Ghaziabad in Session Trial No. 251 of 1999 (State Vs. Wahid and others) is set aside. The appellants have already undergone the entire period of sentence imposed by the trial court and they have been released from jail.

Mohammad Shahanshah Alam Ansari, learned Amicus Curie, who has very efficiently assisted this Court in disposal of both these appeals, shall be paid Rs. 15000/- (Fifteen thousand rupees only) as fee for satisfactorily assisting this Court in both these consolidated appeals.

Dated : May 09, 2017.

S.B.

 

 

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