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Judgment
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 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 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 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 denied all the allegations levelled by the prosecution witnesses and produced three witness in defence and exhibited four documents in defence.
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.
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 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 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 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 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: -
"VERNACULAR MATTER OMITTED"
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 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 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 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 ?" skin deep on the side of forehead near hair margin) and 2 (Laceration 1 ?" 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.
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."
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.