Jammu & Kashmir High Court
Mushtaq Ahmed Bhatti vs Mohd. Ashraf & Ors. on 12 October, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
561-A Cr.P.C. No.176/2009 & MP No.183/2009 c/w
561-A Cr.P.C. No.82/2010 & MP No.91/2010
Date of decision:-12.10.2017
Mushtaq Ahmed Bhatti V Mohd. Ashraf and ors.
c/w connected matter
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta
Appearing Counsel:
(in 561-A Cr.P.C. No.176/2009)
For the petitioner(s) : Mr. V. Bhushan Gupta, Advocate.
For the respondent(s) : Mr. S. K. Anand, Advocate for respondent Nos.1 to 3.
Mr. L. K. Moza, Addl. AG for respondent No.4.
(in 561-A Cr.P.C. No.82/2010) For the petitioner(s) : Mr. S. K. Anand, Advocate.
For the respondent(s) : Mr. L. K. Moza, Addl. AG.
i. Whether approved for
reporting in Press/Media : Yes/No/Optional
ii. Whether to be reported in
Digest/Journal : Yes/No
1. Vide this common order, I propose to dispose of these two petitions; one being 561-A Cr.P.C. No.176/2009 filed by petitioner-Mushtaq Ahmed Bhatti seeking quashment of order passed 28.10.2009 passed by learned Addl. Sessions Judge, Kathua, whereby private respondents have been charge-sheeted under Sections 498-A & 306 RPC instead of charging them under Sections 302/34 RPC and 498-A & 306 RPC; and another petition being 561-A Cr.P.C. No.82/2010 filed by the petitioners namely Mst. Reshma Bibi, Mushtaq Ahmad and Mohd. Ashraf seeking quashment of proceedings pending before learned Addl. Sessions Judge, Kathua in case titled 'State Vs. Mohd. Ashraf & ors.' under Sections 306/498-A RPC.
2. In petition u/s 561-A Cr.P.C. No.176/2009, it is stated that petitioner is the unfortunate father of late Mtr. Shazia Bhatti who has been killed by poisoning her for not bringing dowry and cash from her father at the time of 561-A Cr.P.C. No.176/2009 c/w 561-A Cr.P.C. No.82/2010 Page 1 of 13 marriage and thereafter despite persistent demand by the private respondents. The girl was killed on 19.12.2008. That though the occurrence took place on 19.12.2008, but it was only on 24.12.2008 that Police Station registered the F.I.R., being F.I.R. No. 197 of 2008 of Police Station, Billawar; and that too under Section 306 RPC. All this was done deliberately by the Police to confer undue benefit upon the private respondents to that because of lesser offence the accused will get the bail and ultimately the actual offence will get eclipsed. That the statements of certain important witnesses were recorded by learned Judicial Magistrate Billawar in terms of Section 164-A Cr.P.C.; whose statements pointed out the commission of offence under Section 302 RPC. That despite there being circumstantial evidence as well as other facts and circumstances that the challan was to be produced under Sections 498-A, 302/34 RPC, but the Police produced the Challan under Section 306 and 498-A Cr.P.C. The challan was subsequently committed to the learned Sessions Judge, Kathua from where it was further assigned to the learned Additional Sessions Judge, Kathua. That the petitioner made a request to the Law Department that he be permitted to engage a Special Prosecutor at his expenses, but the Law Department neither on their own nor at the motion of the petitioner engaged any Special Prosecutor. When the matter in the trial court was fixed for arguments for charge/discharge the petitioner filed an application alongwith written arguments with the request that the submissions made by the petitioner in writing be also considered for the purpose of charge, but the learned Judge below even declined to entertain the written submissions and ultimately the petitioner had to come in the Hon'ble High Court by way of Writ Petition No. 867 of 2009 for seeking a direction for allowing him to file his written submissions. The Hon'ble Court vide order dated 24.08.2009 passed the direction allowing the petitioner to file the written arguments and also engage a counsel. That elaborate arguments were advanced in the trial court on charge/discharge and the court below vide 561-A Cr.P.C. No.176/2009 c/w 561-A Cr.P.C. No.82/2010 Page 2 of 13 order dated 28.10.2009 ordered and subsequently charge-sheeted the accused, private respondents under Section 498-A/306 RPC; and declining the prayer of the petitioner for charging the accused under Section 302/34 RPC read with Section 498-A Cr.P.C. That the petitioner is aggrieved of the order dated 28.10.2009 and consequently charge sheeting the private respondents under Section 498-A and 306 RPC and not under 302/34/498- A RPC and challenges the same on the following grounds:-
i. That the contention of the prosecution is that the victim was tortured and harassed for dowry by the private respondents, which lead him to take the drastic step of ending her life by consuming poisonous substance. There is no such probe or finding on the point that ultimately from where the poison came and who provided the same to her?
The bottle empty or consuming part of the residue poison has not been seized. The submission of the petitioner in the court below was that this was the essential circumstance, which required a thorough probe and would have provided an evidence for murder. The court below would have by exercising powers under Section 173(8) Cr.P.C. ordered the further investigation in the matter.
ii. That the ladies who have the last bath to the dead body noticed certain injuries on the body of the girl. The petitioner brought this fact into the notice of the police requesting them that let these ladies be kept as prosecution witnesses, and their statements be recorded in terms of Section 161 Cr.P.C. or they be produced before the court and get their statements recorded in terms of Section 164-A Cr.P.C. The Police did not do so only with ulterior motive to save the accused. This most important aspect of the matter needed thorough probe so that the mystery of serious and other injuries is solved was highlighted before the court below while making a point for ordering of further investigation, but the court below ignored this important aspect of the matter and illegally and arbitrarily declined the prayer of the petitioner for further investigation.
iii. That the case of the prosecution is that the deceased consumed the poison and when this fact the other members of the family came to know, the private respondent No. 1 on his bike shifted the deceased to Billawar Hospital.
This assertion of the respondents is quit unreasonable and unacceptable in the circumstances of the case for the following reasons:-561-A Cr.P.C. No.176/2009 c/w 561-A Cr.P.C. No.82/2010 Page 3 of 13
a. When a person has consumed dreaded poison like Thiodine can such person be in a position to sit on the Motor Cycle or a Scooter as a pillion rider?
b. If the deceased could sit on the Scooter with the help of some 3rd pillion rider who gave support to the victim. Who that 3rd person was? What was his name and why his name has not been revealed anywhere and in any statement? c. There is a plea of the accused No. 1 that she died in the Hospital of Billawar which is about 10 Kilometers from Billawar, whereas the Hospital people say that she was brought dead.
d. The plea of the accused is that while travelling as pillion rider she could not balance herself and fell down on ground due to which fall she sustained some injuries. However there is no such investigation that after the alleged fall from the scooter or motor cycle who again loaded her on the scooter. There is no investigation on this point. e. That at some occasions that say that the deceased was carried to Hospital by a scooter and at some places they say that it was a Motor Cycle. The fact remains that neither the Motor Cycle nor Scooter which in fact seems to have been used in the crime has been seized. Had there been an investigation the truth and the mode adopted by the culprits to commit the heinous crime would have come to light. f. That there is no investigation on the fact that where the deceased died i.e. either in her in-laws house at Dudwara, or in the midway while being shifted to Billawar Hospital or in Billawar Hospital which is about 10 Kms away from the place of occurrence.
All these aspects of the matter were highlighted and urged before the court of learned Additional Sessions Judge, Kathua, but neither the court below has deliberated on these aspects nor has ordered the further investigation in the matter to unveil the heinous crime.
3. That even from the papers submitted by the Police under Section 173 Cr.P.C. (challan), the statements of the prosecution witnesses and the over all circumstances of the case, the nature of injuries on the dead body of victim Shazia Bhatti an offence under Section 302/34 RPC seems to be committed. The law is settled on the point that charge can be framed on mere suspicion. The said point was forcefully argued in the trial court, but the trial court despite there being sufficient material on the file to charge 561-A Cr.P.C. No.176/2009 c/w 561-A Cr.P.C. No.82/2010 Page 4 of 13 sheet the accused under Section 302/34 also has declined to charge sheeting under Section 302/34 also has declined to charge sheeting the accused for the offence of murder which amounts to wrong exercise of jurisdiction, which has caused great prejudice to the petitioner and amounts to miscarriage of justice. That the law quoted and relied upon by the Court is not applicable in the facts and circumstances of the case rather the same strengthens the case of the petitioner/prosecution. That the petitioner also met with the Additional Public Prosecutor of Additional Sessions Judge, Kathua and requested him to take steps for challenging the order impugned, but he too does not seem to be interested in taking any step in this regard.
In such situation the petitioner being a de-facto complainant is filing the present case.
4. Learned counsel for the petitioner, in support of his contentions, has relied upon decisions handed down by Hon'ble Supreme Court in cases titled 'State of Gujarat Vs. Girish Radhakrishnan Varde' reported in 2014 AIR (SC) 620; and 'Deepa @ Deep Chand & Anr. Vs. State of Haryana' reported in 2015 (2) Crimes 145.
5. On the basis of afore mentioned submissions, learned counsel for the petitioner has prayed for quashment of order passed 28.10.2009 passed by learned Addl. Sessions Judge, Kathua.
6. In petition u/s 561-A Cr.P.C. No.82/2010, it is stated that on the basis of a false report lodged by the father of the deceased Shazia, wife of the petitioner No. 3 and daughter-in-law of petitioners No. 1 and 2, a case was registered by the respondent-Police Station, Billawar under FIR No. 197/2008 under Section 306 and 498-A of the RPC. On the basis of the false report lodged, the Police Authorities registered a case against the petitioners. The petitioners No. 1 & 2 were taken into custody on 08.01.2009, whereas, the petitioner No. 3 was taken into custody on 26.12.2008. That petitioner No. 3 is a Government employee and was married with Shazia on 03.10.2003. That both Shazia and the petitioner No. 561-A Cr.P.C. No.176/2009 c/w 561-A Cr.P.C. No.82/2010 Page 5 of 13 3 were enjoying a happy married life and a son was also born out of the wed-lock in 2004. That unfortunately the wife of petitioner No. 3 died on 19.12.2008. That petitioner No. 3 had taken his wife to the Hospital when she fell-down in the House and it was later on revealed that she had consumed some poisonous substance. That after a few days of the death the parents of Shazia lodged a report with the Police Authorities and levelled false allegations against the petitioners and maintained that they apprehend that their daughter may have committed suicide because she was being tortured by the petitioners. That petitioners No. 1 and 2 were released on Bail by the order passed by the Learned Additional Session Judge, Kathua vide its Order dated 30.03.2009. However, the bail application of the petitioner No. 3 was rejected. The petitioner No. 3 filed an application before this Hon'ble Court and this Hon'ble Court was pleased to admit the petitioner No. 3 on bail vide order dated 24.02.2010. That even the Hon'ble High Court while admitting the petitioner No. 3 on bail and after going through the allegations levelled against the petitioners had come to the conclusion that the statements of the star prosecution witnesses recorded during investigation of the case Under Section 164-A Cr.P.C. hint only at the possibility of the deceased committed suicide because of the cruelty of her in-laws. That the evidence so far collected by the prosecution during the investigation is not of such a nature which will warrant into conviction of the petitioners in any case because the general allegations and assertions of the prosecution witnesses are merely of the nature of suspicion and apprehension cannot become basis for the conviction of the petitioners. Law is well settled that the suspicion, however, strong it may be, cannot take the place of proof. That even the statement of the prosecution witnesses does not bring the case against the petitioners under the ambit of Sections 306 and 498-A of the RPC.
561-A Cr.P.C. No.176/2009 c/w 561-A Cr.P.C. No.82/2010 Page 6 of 137. In support of his case, learned counsel for the petitioners has relied upon a decision rendered by our own High Court in case titled 'Baldev Raj and ors. Vs. State' reported in 2009 (1) Crimes 725.
8. Learned counsel for the petitioners has prayed for quashment of proceedings pending before learned Addl. Sessions Judge, Kathua in case titled 'State Vs. Mohd. Ashraf & ors.' under Sections 306/498-A RPC.
9. Per contra, Mr. S. S. Nanda, learned Sr. AAG representing State, has supported the impugned order and submitted that both the petitions deserve dismissal out-rightly.
10. Heard learned counsel for both the sides, gone through the contents of the petitions and considered the law on the subject. These both petitions can be decided together as same order has been challenged.
11. From the perusal of challan, it is evident that on 19.12.2008 SHO Billawar received telephonic message from the hospital that a lady Shajia W/o Mohd. Ashraf was admitted there has died; on this SHO went on spot; took body in his possession; got the post mortem conducted; after post-mortem dead body was given to legal heirs; During investigation Thiodan in bottle from the house of accused was seized; statements of witnesses were recorded; the father of deceased stated that he is shopkeeper; he is having two sons and daughter-deceased, who was married with accused Mohd. Ashraf two years ago; she had one son; he gave dowry according to his status; but her-in-laws used to beat and humiliate her; accused used to ask for a car from her father; on 19.12.2008, he came to know that accused Mohd .Ashraf has taken her to hospital as she has committed suicide by consuming some poison due to ill-treatment and harassment by accused persons.
12. There I/O recorded the statements of other witnesses, prepared site plan;
viscera was sent to FSL; report was obtained; from FSL report it was revealed that deceased died due to consuming of Thiodan an organochloro insecticide.
561-A Cr.P.C. No.176/2009 c/w 561-A Cr.P.C. No.82/2010 Page 7 of 1313. After completing investigation, charge sheet under section 498-A/ 306 RPC was produced before court below; Court below after hearing the counsel for complainant-prosecution and defence counsel came to conclusion that, prima facie, case for framing of charge under section 498-A/306 RPC was made out against all accused, who are husband and parents in law.
14. In order to appreciate the contentions of the parties in both the petitions, it may be noticed that Section 268 and 269 of Cr.P.C. relate to the trial of cases before the Court of Sessions. It is apt to quote sections 268 and 269 of Cr.P.C. as under: -
"268 Discharges:
If upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the judge considers that there is no sufficient ground for proceedings against the accused, he shall discharge the accused and record his reasons for so doing.
269 Framing of charge (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which -
a) is not exclusively triable by the Court of Sessions, he may frame charge against the accused and by order, transfer the case to the Chief Judicial Magistrate or any Judicial Magistrate competent to try the case, and thereupon the Chief Judicial Magistrate or any Judicial Magistrate to whom a case may have been transferred shall try the offence in accordance with the procedure provided for the trial or warrant cases instituted on police report,
b) is exclusively triable by the Court , he shall frame in writing a charge against the accused.
(2) Where the Judge frames any charge under clause (b) of sub section (1) the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried."
15. A conjoint reading of Sections 268 and 269 of Cr.P.C. would reveal that upon consideration of the record of the case and documents submitted, if judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and if after such consideration and 561-A Cr.P.C. No.176/2009 c/w 561-A Cr.P.C. No.82/2010 Page 8 of 13 hearing, judge is of the opinion that there is ground for presuming that accused has committed offence exclusively triable by Court of Sessions, he shall frame charges against the accused person/s. At the initial stage, if there is strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The Judge while considering the question of framing the charges under section 269 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
16. In present case, charge sheeted has been laid u/s 306/498-A RPC, before Court below and court has also framed charges under section 306/498-A RPC against all the accused. In order to solve controversy, it is apt to define section 306 RPC.
"Sec.306 Abetment of suicide If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
Abetment has been defined under section 107 of RPC. S.107 RPC reads as under:-
"107.Abetment of a thing;
A person abets the doing a thing, who-
Firstly- Instigates any person to do that thing; or Secondly-Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly- Internationally aids, by any act or illegal omission, the doing of that thing."
17. A conjoint reading of both Sections, it comes that accused should have done some active suggestion or support to the commission of offence. The word instigates literally means to urge forward, provoke, incite or encourage doing an act and a person is said to instigate another, when he 561-A Cr.P.C. No.176/2009 c/w 561-A Cr.P.C. No.82/2010 Page 9 of 13 actively suggest or stimulate him to act by any means. Legality of Section 306 RPC is dependent upon the act of abetment for commission of the suicide. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. In case of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to commission of suicide.
18. In cases like, abetment to suicide founded on the grounds of demand of dowry, cruelty or mental torture, evidence of systematic demand of dowry, cruelty or mental torture or physical assault are required to be proved by prosecution.
19. Section 114-C of Evidence Act is also relevant in abetment of suicide by a married woman. Section 114-C reads as under: -
"114-C. Presumption as to abetment of suicide by a married woman;
When the question is whether the commission of suicide by a woman has been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
Explanation - For the purpose of this section "cruelty" shall have same meaning as in section 498-A of the State Ranbir Penal Code, Samvat 1989)."
20. As per wording in presumptive provision of Section 114-C of Evidence Act, one of essential ingredients is that woman must have been soon before her death subjected to cruelty or harassment, which forced her to commit suicide.
21. In the present case, prosecution case is that due to demand of dowry, deceased committed suicide. Term cruelty has been defined under Section 498-A RPC. Firstly prosecution has to prove the essential ingredients of 561-A Cr.P.C. No.176/2009 c/w 561-A Cr.P.C. No.82/2010 Page 10 of 13 Section 498-A RPC and only thereafter Section 306 of RPC is applicable. Section 498-A RPC is reproduced as under:-
"498-A. Husband or relative of husband of a woman subjecting her to cruelty, Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation - For the purpose of this section "cruelty" means -
(a) any willful conduct which is of such nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."
22. In present case, there is ample evidence in shape of statements of witnesses, who are father, mother and brother, recorded u/s 164-A Cr.P.C and other witnesses that accused including husband and parents in laws of deceased Shajia W/o Mohd. Ashraf used to beat and humiliate her on demand of dowry and they used to ask the deceased get a car from her father; due to ill-treatment and harassment by accused persons she consumed of Thiodan, an organochloro insecticide and committed suicide on relevant day and date. Further, it is also a fact that deceased committed suicide within two years of marriage and at this stage a presumption can be drawn in terms of section 114 -C of Evidence Act, that deceased committed suicide as her husband and parents in law had subjected her to cruelty.
23. In this way I do agree with the order of trial court that there is ground for presuming that the accused has committed an offence u/s section 306/498- 561-A Cr.P.C. No.176/2009 c/w 561-A Cr.P.C. No.82/2010 Page 11 of 13 A Cr.P.C. The citation produced by counsel for petitioner in case titled 'Baldev Raj and ors. Vs. State' reported in 2009 (1) Crimes 725 is not applicable, because that judgment has been passed after full trial.
24. Now coming to petition filed by father of deceased that accused should be charge-sheeted for offences u/s 302 RPC is concerned, I have carefully and meticulously scanned the evidence on record. There is no legal evidence from where it can be inferred that offence u/s 302 is made out.
25. The contention of counsel for father of deceased that there is no such probe or finding on the point that ultimately from where the poison came and who provided the same to her; that empty bottle or consuming part of the residue poison has not been seized, are not tenable. Because bottle of Thoidan has been seized during inquest proceeding.
26. Further argument that the ladies who have given the last bath to the dead body noticed certain injuries on the body of the girl and petitioner brought this fact into the notice of the police requesting them that let these ladies be kept as prosecution witnesses, and their statements be recorded is also not tenable, because petitioner can request Public Prosecutor for calling these witnesses under section 540 Cr.P.C.
27. I have gone through the citations produced by counsel for petitioner (father of deceased). In State of Gujarat Vs. Girish Radhakrishnan Varde' reported in 2014 AIR (SC) 620, the facts of that case are entirely different; further there is no dispute with law enumerated in this citation, Firstly, facts are to be seen and law is to applied. The law enumerated in 'Deepa @ Deep Chand & Anr. Vs. State of Haryana' reported in 2015 (2) Crimes 145, is also quite different and so is not applicable in present case. This law deals with punishment for murder in aid of section 34 of RPC. Further, this law has been evolved after full trial.
28. There is no dispute with regard to criminal jurisprudence that court while framing charge has not to act like post office and has to frame charge as 561-A Cr.P.C. No.176/2009 c/w 561-A Cr.P.C. No.82/2010 Page 12 of 13 noted in charge sheet by police. The court has to take cognizance of offence and so has to evaluate all record of the case and the documents submitted thereto. If after doing so and after hearing of accused and prosecution, Court comes to definite conclusion that other offence/s is/are made out, then court shall frame the charge/s accordingly. Court should not perform this judicial act casually. This is serious and valuable step for court, prosecution and accused. Because it is the base for prosecution and defense in conducting future trial.
29. Further court has power to alter the charges at any stage of proceeding before final judgment.
30. In view of what has been discussed above, I am of the view that there is no infirmity of law and facts in the impugned order of court below. Hence, both the petitions are dismissed. The trial court record be sent back immediately for further trial.
( Sanjay Kumar Gupta ) Judge Jammu 12.10.2017 Narinder 561-A Cr.P.C. No.176/2009 c/w 561-A Cr.P.C. No.82/2010 Page 13 of 13