Jharkhand High Court
Ashgar Mian S/O Yusuf Mian vs The State Of Jharkhand on 6 February, 2018
Equivalent citations: 2018 (2) AJR 626, (2018) 184 ALLINDCAS 686 (JHA) (2018) 3 JLJR 195, (2018) 3 JLJR 195
Author: B.B. Mangalmurti
Bench: B.B.Mangalmurti
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal(S.J.) No. 938 of 2003
-----------
Against the judgment of conviction dated 16th June, 2003 and order of sentence dated 17th June, 2003 passed by Shri Chandra Prakash Asthana, 9th Additional Sessions Judge, Hazaribag in Sessions Trial No.288 of 1999.
-----------
1. Ashgar Mian s/o Yusuf Mian
2. Mahidan Khatoon w/o Yusuf Mian
3. Yusuf Mian s/o Late Nanhak Mian
4. Hadia Aansari @ Hadish Ansari s/o Yusuf Miam All are residents of village Choubey, Mahto Tola, Police Station-Barkatha, District-Hazaribag .... .... .... Appellants
--Versus--
The State of Jharkhand .... .... .... Respondent
For the Appellants : Mr. Nawal Kishore Prasad, Advocate
For the State : Mr. Krishna Shankar, A.P.P.
PRESENT
HON'BLE MR. JUSTICE B.B.MANGALMURTI
C.A.V. ON: 27.11.2017 PRONOUNCED ON : 06.02.2018
B.B.Mangalmurti, J. This appeal is directed against the judgment of conviction dated 16th June, 2003 and order of sentence dated 17th June, 2003 passed by 9th Additional Sessions Judge, Hazaribag in Sessions Trial No.288 of 1999 convicting appellant no.1-Ashgar Mian for the offences under Sections 498-A and 306 of the Indian Penal Code and appellant nos. 2 to 4 have been convicted under Section 498-A of the Indian Penal Code.
2. The prosecution case in short is that Fardbeyan of Bakruddin was recorded by S.I., A.K. Choudhary, Officer-in-Charge of Barkatha P.S. at village Choubey on 14.01.1999 that he got information from his Samdhi Yusuf Mian at around 05:00 a.m. in the morning of 2 Criminal Appeal(S.J.) No. 938 of 2003 13.01.1999 that his daughter in law Habijan went somewhere from the house on which he replied that he will search and also requested him to start search. Thereafter he reached village Chaubey on 13.01.1999 at about 14:00 hrs. and found some assemblage of villagers near a well which was situated near the house of his Samdhi. When he reached there he found that dead body of his daughter was floating in the well thereafter he inquired about the incident but his Samdhi did not reply. After some time he returned to his home and in the evening at about 05:00 p.m. he accompanied with some of the villagers namely Jalil Mian, Hamid Ansari and Yakub Ansari again went to village Choubey. The villagers have not taken out the dead body from the well and it was still floating in it. In the nigh of 14.01.1999 when the police reached then the dead body was taken out with the help of a Chowkidar, thereafter necessary formalities were made. He claimed that he had firm belief that death of his daughter has been caused by throttling by the mother-in-law(name not known), father-in-law(Yusuf Mian), son- in-law(Ashgar Mian), elder Nanad and Hadish Mian of village Bariaun by making conspiracy due to non-fulfillment of dowry and a motorcycle and after death they have thrown the body in a well. Thereafter a case was registered as Barkattha P.S. Case No.06 of 1999 dated 14.01.1999 under Sections 304 B/34 of the Indian Penal Code against accused persons.
3. After investigation the charge-sheet was submitted under Section 306/34 of the Indian Penal Code. After commitment of the case the 3 Criminal Appeal(S.J.) No. 938 of 2003 charge was framed upon all the four accused persons namely 1.Ashgar Mian, 2.Yusuf Ansari, 3.Hadish Mian and 4. Mahidan Khatoon on 03.02.2000 under Section 306/34 of the Indian Penal Code as well as under Section 304 B/34 of the Indian Penal Code. The prosecution has examined altogether ten witnesses but no evidences have been adduced on behalf of the defence. The line of defence is total denial of offence.
4. The court below found all accused persons guilty under Section 498-A of the Indian Penal Code and the offence punishable under Section 306 of the Indian Penal Code. All the accused persons were sentenced to undergo rigorous imprisonment of one year for the offence punishable under Section 498 A of the Indian Penal Code and accused Ashgar Mian is sentenced to undergo rigorous imprisonment for four years under Section 306 of the Indian Penal Code with further condition that the period remained in custody during trial would be set off. Both the sentences shall run concurrently.
5. Learned counsel for the appellant submitted that since no separate charges were framed under Section 498 A of the Indian Penal Code upon accused persons therefore no conviction could be made under this section. He relied on a decision in the case of Smt. Shanti & Anr. Versus State of Haryana reported in AIR 1991 SC 1226. He further assailed the judgment on the ground that the statement of accused persons recorded under Section 313 of the Cr.P.C. in which no such question of abetment of suicide were put before them and accused were not afforded an opportunity to furnish explanation with regard to the 4 Criminal Appeal(S.J.) No. 938 of 2003 incriminating circumstances associated with them, therefore it cannot be used against them. No matter how weak the evidence of the prosecution may be, it is the duty of the court to examine the accused, and to seek his explanation as regards the incriminating material that has surfaced against him. The circumstances which are not put to the accused in his examination under Section 313 Cr.P.C., cannot be used against him and must be excluded from consideration. The said statement cannot be treated as evidence within the meaning of Section 3 of the Evidence Act, as the accused cannot be cross-examined with reference to such statement.
6. He relied on a decision in the case of Sujit Biswas vs. State of Assam reported in 2014(1) East Cr C 266 (SC) as also in the case of State of Punjab vs. Hari Singh & Others reported in 2009(3) East Cr C 49(SC).
7. Counsel for the appellants further submitted that the Postmortem-report (Ext.5) has been brought on record through an Advocate Clerk who has been examined as P.W.10 but he was incompetent to prove this document as the doctor who had conducted the post-mortem has not been examined. Even if the postmortem-report is to be taken into consideration from that it would appear that no external injury or mark of injury on the neck area of the deceased was found. The water was found in the abdomen then the deceased was alive while she slipped into the well and drank water. If the dead body would have thrown in well then no water could have been found in her stomach as a dead person cannot swallow water therefore in this case 5 Criminal Appeal(S.J.) No. 938 of 2003 as per allegation the accused persons after pressing the neck of deceased thrown her body into the well is not correct. This proposition cannot be accepted in view of the finding in the postmortem-report.
8. Arguments was advanced that while recording the statement of accused under Section 313 of the Indian Penal Code the question relating to abetment were not put. The Hon'ble Apex Court in the case of State of Punjab Versus Hari Singh and Ors. (supra) held at Paragraph 18 which is quoted hereinbelow :-
"18. In the present case, though, there was evidence regarding conscious possession, but, unfortunately no question relating to possession much less conscious possession was put to the accused under Section 313 Cr.P.C. The questioning under Section 313 Cr.P.C. is not an empty formality."
Counsel for the appellant submitted that the question put before the accused under Section 313 Cr.P.C. are of much importance if the conviction is going to be based upon those evidences, therefore, the Hon'ble Apex Court has held that it cannot be an empty formality.
9. He also relied another judgment in the case of Sujit Biswas Versus State of Assam reported in 2014 (1) East Cr C 266 (SC).
10. Lastly, he submitted that in this situation when the court has not held the accused persons guilty under Section 304 B Indian Penal Code, therefore the court has actually acquitted them under Section 304 B of the Indian Penal Code due to the reason that the date and year of marriage could not be specifically brought on record so the prosecution 6 Criminal Appeal(S.J.) No. 938 of 2003 could not able to prove that the death occurred within seven years of marriage. When accused persons have not been held guilty under Section 304 B of the Indian Penal Code then sentencing them under Section 498 A of the Indian Penal Code is not also sustainable rather the court has sentenced them under Section 306 of the Indian Penal Code i.e. abatement of suicide.
11. Learned A.P.P. appearing on behalf of the State submitted that prosecution witnesses nos. 2 and 4 have deposed about demand of dowry. The witnesses have also supported the demand of motorcycle. He further submitted that marriage between the parties were not denied and the death has occurred within seven years of marriage. Since the witnesses are rustic villagers therefore the specific date of marriage or the marriage certificate (Nikahnama) could not be brought on record and proved even then in the background of admission of marriage between the parties the trial court has rightly held them guilty under Sections 498 A and 306 of the Indian Penal Code.
12. On scrutiny of evidences brought on record on behalf of the prosecution, it appears that P.W.1 Jalil Mian stated that occurrence is of 13.01.1999 when Bakruddin Miyan informed him that his daughter Habijan Khatoon who married with Md. Asgar Ansari of village Chaubey have been killed due to non-fulfillment of dowry demand and her dead body was thrown into a well. He further stated that the marriage was solemnized 5/6 years ago and she was living in her Sasural. He also deposed that when she used to come in Maike, her 7 Criminal Appeal(S.J.) No. 938 of 2003 husband, father-in-law, mother-in-law and Nanad were demanding motorcycle. He went to the village on 14.01.1999 before whom the dead body was taken out from the well. He has also given his thumb impression which has been marked as Ext.1. He recognized the accused person who were present and claimed to recognize the absentee accused. During cross-examination, this witness stated that he is not related with Bakruddin though he is a co-villager.
P.W.2 Hameed Mian also deposed that daughter of Bakruddin was married with Asgar of village Choubey and she was residing there where in-laws were not behaving well due to non-fulfillment of dowry. They were torturing her as the husband was demanding a motorcycle. A Panchayti was held between both the parties. After three months of Panchayti, he saw the dead body of Habijan Khatoon. He had also stated that Bakruddin Mian visited village Chaubey and the dead body was taken out from the well in presence of Police and Chowkidar. He further deposed that the fardbeyan of Bakruddin was recorded in his presence. He had given thumb impression along with Jalil Ansari and the same has been marked as Ext.1/a and 1/b. During cross- examination, he stated that he is illiterate man and had not seen the assault caused to Habijan. He has not seen the body while it being thrown in well. He has also stated about the torture being caused by the in-laws but the demand of dowry was not made before him.
P.W.3 Badruddin Mian, informant of this case and father of deceased Habijan Khatoon deposed that the marriage was solemnized 8 Criminal Appeal(S.J.) No. 938 of 2003 about six years ago. He got the information from Yusuf Mian (father-in- law of the deceased) who informed that Habijan had fled from the house and we are searching her and also requested him to search. On the same day at around 2.00 p.m., he reached village Chaubey and found mob near a well. He could know that dead body of his daughter was floating in the well. The son-in-law and relatives were not present. After some distance, he met with son-in-law and enquired about the incident then he fled away. He went to the house of his Samdhi which was found locked. Thereafter, returned to his house and informed the village people. Again he went to village Chaubey with co-villagers but returned back due to night. On the next date, the Police came and recovered the dead body from the well where he recognized it before the Police. He also deposed that he had informed the Police about the demand of dowry by in-laws and other relatives. He suspected that they have committed murder by throttling. He also deposed about the holding of Panchayti three months before the incident as they were demanding motorcycle. He was cross-examined at length where he has replied that he could not remember the exact date, month and year of marriage of his daughter but it was solemnized six years prior to the occurrence but he has no certificate of marriage. He denied the suggestion that in his re-statement before the Police he has stated that marriage was solemnized 7/8 years prior to the occurrence. He also replied that the girl was comfortable in her Sasural for about four months and thereafter they started demanding motorcycle but no case 9 Criminal Appeal(S.J.) No. 938 of 2003 was lodged by her daughter upon their in-laws. He also stated that when the demand was made nobody was present from his village. He denied the suggestion that the marriage of his daughter was solemnized in the year 1990. Lastly, he denied the suggestion that due to conspiracy this false case has been lodged.
P.W.4 Md. Yakub who also deposed that the marriage of Habijan was solemnized 6/7 years before the occurrence. She was living in her Sasural and her dead body was taken out from the well. Accused persons were demanding motorcycle and due to that reason torture meted out to her as his father used to say. He was also present at the time when the dead body was taken out from the well.
P.W.5 Ram Prasad Ram was signatory of the inquest report. Photocopy of which was shown to him which was marked for identification.
P.W.6 Makbul Ansari is a co-villager of the informant who firstly stated that Habijan died 11/12 years from the date he was deposing but later on corrected it as two years from the date of his evidence. He was also present when the dead body was taken out from the well. During cross-examination, he stated that he was also present at the time of her marriage which was solemnized 11/12 years ago. He also replied that good relation existed between husband and wife.
P.W.7 Nizamuddin Mian was tendered by the prosecution. P.W.8 Samsuddin Ansari stated that the marriage of deceased Habijan Khatoon and Asgar was in the year 1990. She died three years 10 Criminal Appeal(S.J.) No. 938 of 2003 ago in her Sasural. She died as she jumped in the well. This witness was declared hostile and the prosecution was allowed to cross examine her.
P.W.9 Arvind Kumar Choudhary is Investigating Officer of the case who stated that after receipt of confidential information about death of a woman due to drowning in the well he made entry and proceeded for its verification. He reached village Chaubey and found floating of dead body which was taken out with the help of Chowikdar Hadis Ansari in presence of informant and others. The fardbeyan was recorded there and they put their signature/thumb impression on it which was marked as Ext. 2 and signatures as Ext.2/1. He has also prepared Inquest report (Ext.3) and thereafter dead body was sent for post-mortem. He stated about the place of occurrence and related area and has also prepared rough sketch and also recorded statement of witnesses as well as re-statement of informant. The Post-Mortem report was collected by him which was part of the case diary and its gist is mentioned in Paragraph 19 of the case diary which has been marked X/1 for identification. He arrested the accused persons and submitted charge sheet under Section 306/34 of the Indian Penal Code against four accused persons while investigation was kept pending against Julekha Begum (Nanad of deceased). He was cross-examined at length. During cross-examination he stated that informant in his re-statement have told that the marriage was solemnized 7/8 years ago. Nizam and Hadis Miyan both have stated that Nikah was solemnized in the year 1990. Both have also stated that deceased in fit of anger had jumped 11 Criminal Appeal(S.J.) No. 938 of 2003 into a well and died. He also replied that Jalil Mian had never said that accused persons after throttling the deceased thrown the dead body in the well. Hamid Ansari has stated about the holding of Panchayti. Bakruddin had also stated about the holding of Panchayti but has not given any paper of Panchaytnama. He has also not stated before the Police that the in-laws were demanding motorcycle and were declaring that if the demand is not fulfilled they will kill his daughter.
P.W.10 Baleshwar Prasad, Advocate Clerk of Civil Court, Hazaribagh who recognized the post-mortem report in the handwriting and signature of Dr. Riyazuddin, Medical Officer which was marked with objection as Ext. 5.
13. From the above evidences, it appears that the Nikahnama was not brought on record by the prosecution and there is difference in the evidence of prosecution witnesses regarding year of marriage of the deceased. The court below held appellants guilty under Sections 498A and 306 of the Indian Penal Code. From the scrutiny of evidences, it further appears that the demand of dowry was not made before any villager nor deceased had lodged any case against the in-laws as stated by the informant in his cross-examination. Prosecution witnesses have claimed that a Panchayti was also held but no Panchayti paper could also be brought on record by the prosecution in support of this submission. P.W.1-Jalil Mian, P.W.2-Hameed Mian both were signatory on Fardbeyan and in their presence dead body was taken out from the well. Both witnesses and P.W.4-Yakub has stated that they got 12 Criminal Appeal(S.J.) No. 938 of 2003 knowledge of demand of dowry from Badruddin Mian, father of the deceased so these witnesses are hearsay on the point of demand of dowry. P.W.6- Makbul Ansari during cross examination stated that the marriage of deceased was solemnized 11/12 years ago and good relation between husband and wife existed. In this situation, the statement of P.W.3 is not corroborated. Therefore, holding guilty under Section 498A of the Indian Penal Code would not be proper.
14. The court below has also held the appellants guilty under Section 306 of the Indian Penal Code. The Section is reproduced hereinbelow:-
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.
15. The prosecution witnesses could not properly proved about the demand of dowry and the torture in such a way that the deceased committed suicide. In absence of non-examination of Doctor, the Post- mortem report were not properly brought on record nor the Panchayatnama as well as the supportive evidences regarding the demand of dowry and abetment to deceased to commit suicide could not be well proved by the prosecution. The witnesses have also deposed that the relationship between husband and wife was congenial and this witness has also stated that after marriage deceased was living in her Sasural. Nobody had seen the deceased either jumping in well nor the appellants were seen by anyone while throwing the body of the deceased in the well. The prosecution could not complete chain of 13 Criminal Appeal(S.J.) No. 938 of 2003 circumstantial evidences in this regard. The ingredients of Section 306 IPC could not also well proved by the prosecution. In this background, the appellants deserve benefit of doubt.
16. In the result, instant appeal is allowed. The appellants are on bail, so they are discharged from the liability of their bail bonds.
(B.B. Mangalmurti, J.) Jharkhand High Court, Ranchi Dated, 6th February, 2018 Anit/R.P./A.F.R.