Mohd. Shareef and Others vs State of U.P.

Pratyush Kumar, J.—1. Heard Sri Vijay Pratap Singh on behalf of the appellant and Sri Mohd. Yusuf Ansari, Advocate and learned A.G.A. on behalf of the State-Respondent.

The Criminal Appeal No. 2419 of 2008 filed on behalf of the accused/appellant Mohd. Shareef is directed against the judgment and order dated 01.10.2008, passed by Sri R.K. Gautam, Additional Sessions Judge/Special Judge (EC. Act Faizabad) in Sessions Trial No. 259/98 State Vs. Md. Shareef, whereby the appellant was convicted under Section 302/34 I.P.C. and sentenced to undergo imprisonment for life and further to pay fine of Rs. 5000/- in default thereof to undergo one years rigorous imprisonment.

The Criminal Appeal No. 2420 of 2008, has been filed by accused-appellant Jumman to question the correctness of the same judgment and order dated 01.10.2008, passed in the same Sessions Trial, whereby the appellant in this appeal has been convicted under Section 302/34 I.P.C. and sentenced to undergo imprisonment for life and further to pay fine of Rs. 5000/- in default thereof to undergo one years rigorous imprisonment.

Since, both the appeals arise out of the same Sessions Trial and are directed against the same judgment and order, they are disposed of by a common judgment.

The facts of the prosecution case, in the present matter may be summarized as under.

On 13.06.1997 at 2:35 P.M. on the basis of an application moved by Smt. Badrunnisha and addressed to S.S.P.-Faizabad, chick FIR was scribed and case crime No. 336/97 under Sections 498A/323/506/307 I.P.C. & 3/4 Dowry Prohibition Act, was registered and requisite entry was made in the report of the general diary of the Police Station-Bikapur.

According to Smt. Badrunnisha her daughter Smt. Kutubunisha was married to Mohd. Shareef, after marriage she was cruelly treated and tortured for demand of dowry but due to her poverty, she could not fulfill the demand of dowry. On 6.06.1997 Mohd. Shareef (husband), Mohd. Rafi (father-in-law), Jumman (Dever) and mother-in-law had beaten her with lathi and to kill her they sprinkled kerosene oil on her and set her to fire, she came out of the house burning and saved by villagers and passers by, who admitted her in the hospital, she took care of her daughter in the hospital since 08.06.1997, she was hovering between life and death. In spite of several applications her report had not been lodged, request has been made that her report be registered and legal action be taken against the accused persons.

Investigation of the case was entrusted to S.I. Ram Balak Dohre (I.O.). After hospitalization of one month and four days. Smt. Badrunnisha took her daughter from the hospital to her village. After three days her condition deteriorated and on 13.07.1997 at 7. P.M. She died. After inquest her dead body was sent to the mortuary where autopsy was performed. After investigation was concluded, chargesheet was submitted against the present appellants and co-accused-Bhonu.

In the Court of Session both the appellants were charged under Sections 498-A/307/34, 323/34, 302/34, 506(2) I.P.C., in the alternative they were also charged under Section 304B/34 I.P.C. The appellants denied the charges and claimed to be tried, co-accused Bholu @ Bhonu was declared juvenile, his case was sent to the Juvenile Justice Court-Faizabad.

In order to prove the charges on behalf of the prosecution, besides documentary evidence, 11 witnesses were examined, thereafter, statements of the appellants were recorded under Section 313 Cr.P.C. wherein they admitted that deceased Smt. Kutubunisha was married to Mohd. Sareef, 13 years ago. Rests of the facts stated by the prosecution witnesses were denied by them. Appellant Mohd. Shareef in his statement has stated that at 1 A.M., all members of the family were sleeping outside the house, deceased was sleeping inside the house, fire broke out in the house, first he took his brothers and sisters to safe place thereafter, he extinguished the fire and took out his wife and took her to Sahabganj and from there to the District hospital, Faizabad and got her treated. On the report of his mother-in-law he and his family members were sent to Jail. The deceased was taken by her mother to Mayaka, thereafter, he does not know what happened. In defence three witnesses were examined.

After hearing the arguments, the learned trial Judge has convicted the appellants and sentenced them as above.

Feeling aggrieved both the appellants have preferred separate appeals. On behalf of the appellants correctness of the impugned judgment has been assailed on the grounds that marriage took place 13 years ago. There is no evidence that the appellants ever made any demand of dowry or cruelly treated her. It has been further submitted that after receiving burn injuries the deceased had recovered and after discharge, she was taken to her Mayaka by her mother where she has died. After autopsy cause of death could not be ascertained. On behalf of the prosecution viscera examination report has been withheld even then the learned trial Judge has convicted them though cause of death could not be ascertained. It has been further urged that the statement of the deceased recorded by the Magistrate relates to incident of burning from whose burns, she had recovered and her death had no proximate relation with the incident of burning, therefore, dying declaration has been erroneously taken into consideration and on its basis the appellants have been wrongly convicted. In the alternative it has been argued that even the deceased in her dying declaration had accused-Bholu, to set her to fire. Thus, for her death the present appellants have been wrongly convicted.

On behalf of the State-Respondent these arguments have been repelled and findings recorded by the learned trial Judge have been justified.

Here we would like to remember the observation made by the Apex Court in the case of Ishvarbhai Fuljibhai Patni Vs. State of Gujarat [, 1995 Supreme Court Cases (Crl) 222]. Para-4 of the judgment reads as under:

"4. Since, the High Court was dealing with the appeal in exercise of its appellate jurisdiction, against conviction and sentence of life imprisonment, it was required to consider and discuss the evidence and deal with the arguments raised at the bar. Let alone, any discussion of the evidence, we do not find that the High Court even cared to notice the evidence led in the case. None of the arguments of the learned counsel for the appellant have been noticed, much less considered and discussed. The judgment is cryptic and we are at loss to understand as to what prevailed with the High Court to uphold the conviction and sentence of the appellant. On a plain requirement of justice, the High Court while dealing with a first appeal against conviction and sentence is expected to, howsoever briefly depending upon the facts of the case, consider and discuss the evidence and deal with the submissions raised at the bar. If it fails to do so, it apparently fails in the discharge of one of its essential jurisdiction under its appellate powers. In view of the infirmities pointed out by us, the judgment under appeal cannot be sustained."

In the case of Lal Mandi, Appellant v. State of West Bengal, Respondent [, 1995 Cri.L.J. 2659 (Supreme Court), 2659], the Apex Court in para-5 of the report has given caution to the High Court reminding its duty in the matter of hearing of appeal against conviction. It would be gainful to reproduce the observation made in para-5 of the report, extracted below:

"5. To say the least, the approach of the High Court is totally fallacious. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the trial court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh''s case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of accused which gets strengthened on his acquittal is not available on his conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence."

Thus having reminded our-self our obligations as an appellate court, before we proceed to re-examine and re-assess witnesses of facts and evidence of dying declaration, we would also like to have a glance at the medical evidence which consists of statements of Dr. Shashikant PW-5 and postmortem report exhibit K-2.

According, to Dr. Shashikant he conducted the postmortem examination of the dead body of the deceased on 14th July, 1997 at 3. P.M., in the stomach he found 100 ml semi digested meal and Mucus Membrane was reddish in color and congested, in the small intestine, he found stool present in the large intestine only gases were present, cause of death could not be ascertained during the autopsy viscera was preserved. According to him, death took place one day before. He recorded in the postmortem report, anti-mortem injury: almost healed burn wound in healed stage on anterior and posterior aspect of both thigh including genitalia and back abdomen lower part. Anterior aspect of both leg about 40% burn. In the cross-examination correctness of his testimony was not challenged, he was asked only about nourishment taken by the deceased.

In view of above, we rely on the testimony of Dr. Shashikant and hold that her death took place on 13th July, 1997 at 7 P.M., for causes unascertained.

Before coming to evidence of dying declaration, we would like to place on record that Ram Prasad PW-1, Ram Achhaiver Pandey PW-2, Kapil Dev PW-3 turned hostile only Badrunnisha PW-4 (first informant) mother of the deceased supported the prosecution version.

During cross-examination she has admitted that in-laws of her daughter were very poor, she has also admitted that she had not made any complaint about demand of dowry to Kallan (Middleman), she has also admitted that after knowing about demand of dowry, she never called any panchayat. She has admitted that marriage of her daughter took place 13 years ago, though she made an improvement to that by saying that the marriage had taken place 5 years prior to her death and 8 years have elapsed since her death, but she did not deny this fact that in her statement recorded under Section 161 Cr.P.C. she told the Investigation Officer that the marriage of her daughter took place 8 - 10 years ago, she has also admitted that when she reached hospital after receiving news about fire incident and found that her daughter''s in-laws were caring for her, she has also admitted that she took her daughter from the hospital after discharge to her house and after reaching her Mayaka, she died on the 3rd day.

After going through her statement, we find that deceased had died after more than 7 years of her marriage and it is not certain whether her death was an unnatural death or not. We also find that during matrimony demand of dowry was ever made to the deceased could not be proved. We further find that her in-laws and the husband not only rescued her, but also took care of her till the witness reached the hospital and made the complaint to the police.

Cause of death could not be ascertained. The appellants had caused death of the deceased has not been proved by the statement of the first informant.

Now, remains only evidence of the dying declaration. Dying declaration was recorded by Ram Kewal Tiwari the Executive Magistrate PW-9, he has proved the dying declaration Exhibit K-16 and he had also obtained fitness certificate from the doctor. The doctor who gave the fitness certificate has been examined as Dr. Ramesh Chand PW-8, he has proved his certificates Exhibits K-14 and K-15. Correctness of the testimony of Dr. Ramesh Chand has not been disputed on behalf of the defence and Ram Kewal Tiwari PW-9 was only subjected to cross-examination about one sentence uttered by the deceased. On the basis of this evidence, we are of the opinion that dying declaration Exhibit K-16 was duly recorded and voluntarily made by the deceased. However, we find that the deceased blamed her husband only for showering his affection on his real aunt, when she created a scene, her husband had collected 2-4 women and made a complaint and abused her and also gave two danda blows to her. In her statement she had not made any reference to any demand of dowry. Therefore, the dying declaration of the deceased contains no allegations against the present appellants.

From the evidence available on record we are not sure whether the deceased had died a natural death or an unnatural death, what was the cause of her death. In such factual scenario, we do not think prosecution has been successful in proving the charges against the present appellants, therefore, it is needless for us to discuss about the defence evidence and also about possibility of any connection between her death and fire incident. Suffice is to say that the learned trial Judge has not addressed the facts noticed by us as above. He has not taken care to ascertain whether fire incident had any reasonable nexus with her death and what was the cause of her death. Even learned trial Judge has ignored that when deceased died she was living in her Mayaka, the present appellants could be responsible for her death with cause unknown.

In view of above the findings of facts recorded by the learned trial Judge are full of legal and factual infirmities. The evidence has not been appreciated in legal prospective, such findings cannot be sustained and we hold that prosecution has failed to prove charges against the present appellants beyond reasonable doubts. The impugned judgment and order also the conviction and sentences awarded to the present appellants deserve to be set aside. The appeals have substance and they deserve to be allowed.

Accordingly, both the appeals are allowed.

The impugned judgment and order dated 01.10.2008, as also conviction and sentences of the appellants are also set aside. They are acquitted from the charges under Sections 302/34 I.P.C.

Resultantly, the appeals are allowed and the impugned judgment and order dated 01.10.2008 passed by the Additional Sessions Judge E.C. Act - Faizabad in S.T. No. 259/1998, under Sections 302/34 I.P.C., Police Station-Kotwali Bikapur, District-Faizabad, are hereby set aside as also conviction and sentences awarded to the appellants are also set aside, they are acquitted from the charge levelled against them. The appellants are on bail. Their personal bonds and sureties are cancelled and the sureties are discharged from their liabilities provided within thirty days from the date of the judgment they file their personal bonds and two sureties in the like amount is the satisfaction of the judge of the trial court in compliance of Section 437-A Cr.P.C.

Office is directed to certify this order to the court concerned forthwith and to send back the lower court record.