Rajasthan High Court - Jaipur
Abdul Waheed vs State on 4 October, 2016
Author: Ajay Rastogi
Bench: Ajay Rastogi
D.B. Criminal Appeal No. 335/2009
Abdul Waheed Vs. The State of Rajasthan
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH, JAIPUR
J U D G M E N T
D.B. Criminal Appeal No. 335/2009
Accused-Appellant:
Abdul Waheed S/o Abdul Hameed, by caste Musalman R/o
Ward No. 20, Behind Girls School, Chhabra District
Baran.
(Accused confined in District Jail, Baran)
Versus
Respondent:
The State of Rajasthan, through Public Prosecutor.
Appeal under Section 374 of CrPC
against the judgment dated 27.03.2009
passed by Additional Sessions Judge
(Fast Track), Chhabra, District Baran
in Sessions Case No. 94/2008 State Vs.
Abdul Waheed and Ors.
Judgment reserved on: 21st September, 2016
Judgment pronounced on: 4th October, 2016
PRESENT
HON'BLE MR. JUSTICE AJAY RASTOGI
HON'BLE MR. JUSTICE DINESH CHANDRA SOMANI
Mr. Surendra Singh on behalf of
Mr. V.S. wadhwar, Counsel for the accused-appellant.
Mr. N.S. Shekhawat, learned Public Prosecutor with
Mr. S.K. Saini, learned Public Prosecutor for the
State.
By the Court : ( Per Hon'ble Dinesh Chandra Somani, J.)
This criminal appeal has been filed under Section 374 of CrPC against the judgment of conviction and order of sentence dated 27.03.2009 passed by the learned Additional Sessions Judge (Fast Track), Chhabra D.B. Criminal Appeal No. 335/2009 Abdul Waheed Vs. The State of Rajasthan 2 District Baran in Sessions Case No. 94/2008 whereby the appellant has been convicted and sentenced as follows:
-For the offence under Section 302 of IPC sentenced for life imprisonment with fine of Rs. 5,000/- and in default of payment of fine to further undergo six months' rigorous imprisonment.
-For the offence under Section 498A of IPC sentenced for two years' rigorous imprisonment with fine of Rs. 1,000/- and in default of payment of fine to further undergo three months' rigorous imprisonment. The substantive sentences were ordered to run concurrently.
Prosecution story in brief is that on 17.04.2008 at about 10:45 PM Smt. Sanno Bai (hereinafter referred to as "the deceased") wife of accused-appellant gave a Parcha Bayan Ex.P-17 in CHC, Chhabra to PW-19 Samiullah, Second Officer of Police Station, Chhabra stating inter alia that in today's night at about 9:00 PM she was at her house along with her husband Abdul Waheed, son Daanish aged 6 years and daughter Seenam aged 4 years. Her husband was pressurising her to bring Rs.50,000/- from her father. In response, she told him that her father has no money. On account of non-fulfillment of his wish, her husband started beating her with legs and fists and thereafter, poured kerosene oil on her and set her on fire. She raised hues and cries and on hearing, Haseena wife of Abdul Salaam and her brother Imran rushed to her and on D.B. Criminal Appeal No. 335/2009 Abdul Waheed Vs. The State of Rajasthan 3 seeing them, her husband fled away. Thereafter Rafiq, her father Babu Khan and Imran took her to Hospital, Chhabra for treatment in an auto-rickshaw. PW-19 Samiullah made his endorsement on this Parcha Bayan. SHO Police Station, Chhabra registered FIR No. 121/2008 (Ex.P-19) on this Parcha Bayan for commission of offence under Section 307, 498A of IPC against the accused-appellant.
In the course of investigation, dying declaration (Ex.P-15) of injured Smt. Sanno was recorded on 18.04.2008 and copy of dying declaration was obtained.
During treatment in hospital at Kota injured/victim Smt. Sanno died, thereafter Section 302 of IPC was added and inquest report was prepared. Autopsy of the corpse of the deceased was performed by Dr. Arun Kumar (PW-7). The accused-appellant was arrested on 18.04.2008 and after usual investigation, charge-sheet was filed against accused-appellant for the offence under Section 302 and 498A of IPC and against accused- Abdul Hameed and Jahid Ali for the offence under Section 498A of IPC in the Court of ACJM, Chhabra District Baran, from where the case was committed to Additional Sessions Judge, Chhabra and thereafter the case was transferred to Additional Sessions Judge (Fast Track), Chhabra District Baran.
Learned trial Court framed the charges against the accused-appellant and other two accused-persons brought before it for trial. Charges were read over and explained to the accused-appellant and other accused- persons, who pleaded not guilty and sought to be tried.
D.B. Criminal Appeal No. 335/2009 Abdul Waheed Vs. The State of Rajasthan 4 In order to support its case, the prosecution examined 21 witnesses and exhibited 22 documents.
(Note- Witness Ashok Kumar Ahir, Constable No. 780 was examined twice mistakenly as PW-13 and PW-22).
Thereafter, learned trial Court put oral evidence of the prosecution witnesses and documentary evidence produced by the prosecution to the accused-appellant and other accused-persons under Section 313 of CrPC. In reply to the prosecution evidence, the accused- appellant stated that he is innocent, he did not kill Sanno and demanded any dowry from her and he has been falsely implicated. In defence, DW-1 Munnu, DW-2 Mohammad Haneef were examined and accused-appellant Abdul Waheed was also examined as DW-3 under Section 315 of CrPC. The accused-appellant got 13 documents exhibited.
After completion of trial, the learned trial court acquitted the accused Abdul Hameed and Jahid Ali from the charge of offence under Section 498A of IPC but convicted the accused-appellant for the offence under Section 302 and 498A of IPC and sentenced him as indicated hereinabove.
Being aggrieved by the judgment of conviction and order of sentence awarded to the accused-appellant, he preferred the present appeal before this court against the judgment of learned trial Court dated 27.03.2009.
Mr. Surendra Singh,learned counsel for the accused-appellant contended that the impugned judgment is based on surmises and conjectures and is contrary to the material and evidence available on record, D.B. Criminal Appeal No. 335/2009 Abdul Waheed Vs. The State of Rajasthan 5 therefore the same cannot be sustained and is liable to be quashed and set aside.
Learned counsel for the accused-appellant also contended that the prosecution witnesses are highly interested witnesses and their testimony suffers from infirmities. PW-9 Daanish is a child witness. He was living with maternal grand father and grand mother when he appeared in the witness box. The child was tutored by the parents of the deceased. Statement of PW-9 Daanish is also not corroborated with the statement of the deceased. Under aforesaid circumstances, the learned trial Court has committed an illegality while relying on the testimony of PW-9.
Learned counsel for the accused-appellant also contended that the alleged dying declaration made by the deceased is not admissible in evidence because there is no evidence that the alleged dying declaration was recorded by the deceased without any fear and influence. It is also not established that the deceased was in a fit state of mind while recording the statement. So called dying declaration is also not corroborated with any other evidence. There are serious contradictions in the statements of prosecution witnesses and the so called dying declaration of the deceased. Therefore, it is unsafe to rely upon such statement in the absence of any corroborative evidence.
Learned counsel for the accused-appellant further contended that the relations between the accused- appellant and the deceased were cordial and they were leading happy married life, which proved from the D.B. Criminal Appeal No. 335/2009 Abdul Waheed Vs. The State of Rajasthan 6 statement of witnesses produced in defence, thus, there was no occasion for the appellant or motive to commit murder of the deceased. This salient aspect of the matter was overlooked by the trial Court thus, the impugned judgment is liable to be quashed and set aside and prayed to allow the appeal and acquit the accused- appellant of the charges levelled against him.
Mr. N.S. Shekhawat, learned Public Prosecutor supported the impugned judgment and submitted that learned trial Court has rightly convicted the accused- appellant on basis of cogent and reliable evidence, which proved his guilt beyond reasonable doubt.
Learned Public Prosecutor also submitted that first version of the deceased reflected from the Parcha Bayan Ex.P-17 which was recorded on 17.04.2008 after she was brought to the hospital and thereafter in statement recorded under Section 161 of CrPC and dying declaration Ex.P-15 recorded by the then ACJM No. 2. Every time she gave similar version and remained consistent. The dying declaration in the present case has been recorded by PW-17 Jagendra Kumar Agarwal, the then ACJM No. 2, Kota after the fitness certificate endorsed by the Medical Officer.
Learned Public Prosecutor also contended that the conviction can be based solely on dying declaration only, provided it is true and inspire confidence. It does inspire confidence in the present case and other prosecution witnesses also proved the offence beyond doubt against the accused-appellant and the learned Public Prosecutor prayed to dismiss the appeal being D.B. Criminal Appeal No. 335/2009 Abdul Waheed Vs. The State of Rajasthan 7 devoid of merit.
We have given our anxious consideration to the rival submissions of learned counsel for the accuse- appellant and learned Public Prosecutors for the State and perused the material on record.
PW-19 Samiullah was Second Officer in Police Station, Chhabra on 17.04.2008 who in his deposition stated that he recorded the Parcha Bayan Ex.P-17 of the deceased-Sanno wife of the accused-appellant. The witness also deposed that on receiving information from CHC, Chhabra, he went to the hospital, where Sanno was indoor patient on bed No. 11 in a burned condition. He gave a letter Ex.P-18 to the doctor and asked as to whether she is in a fit state of mind to record statement. The doctor certified her to be in a fit state of mind to give statement. Thereafter, he recorded Parcha Bayan of Sanno Bai in presence of doctor and Nizamudeen Sarpanch which is Ex.P-17. He obtained thumb impressions of Sanno on Ex.P-17 at two places and also obtained signatures of Dr.Pratap Singh Yadav and Nizamudeen Sarpanch. Offence under Section 498A and 307 of IPC made out from Parcha Bayan, he submitted the same before SHO who made his endorsement on Parcha Bayan to register the case, whereupon FIR was registered which is Ex.P-18. In cross-examination, the witness denied the suggestion that Sanno was not in a condition to speak.
Conjoint reading of statement of PW-7 Dr. Arun Kumar read with injury report Ex.P-1 and post-mortem report Ex.P-8, reveals that PW-7 Dr. Arun Kumar D.B. Criminal Appeal No. 335/2009 Abdul Waheed Vs. The State of Rajasthan 8 performed the autopsy on the corpse of the deceased- Sanno Bai on 25.04.2008 as Medical Jurist in MBS Hospital, Kota and found superficial to deep burns on the body with granulation tissue and pus formation at places. Burn area includes face, forehead, neck, back of neck, chest, abdomen, pubic area, both upper limbs, thighs anteriorly up to knee border, posterior part of left thigh and burning of hair. PW-7 Dr. Arun Kumar deposed that all burns were ante-mortem in nature and the burned area was about 60%. The cause of death is septicemic shock as a result of ante-mortem burn injuries which are sufficient to cause death in ordinary course of nature. The aforesaid evidence is corroborated by the statement of PW-2 Dr. Pratap Singh Yadav who examined the injuries on the body of Sanno- the wife of the accused-appellant on 17.04.2008 at 11:00 PM as Senior Medical Officer in CHC, Chhabra and prepared injury report Ex.P-1.
PW-17 Jagendra Kumar Agarwal, ACJM No. 2, Kota has stated that he recorded the dying declaration of Sanno Bai on request of the police and under instructions of Chief Judicial Magistrate, in burn ward of MBS Hospital, Kota where she was admitted for treatment. According to the witness, duty doctor certified on his letter Ex.P-14 that Sanno Bai is in a fit state of mind to give statement, then he recorded her statement which is Ex.P-15. In cross-examination, the witness stated that none was present near injured when he recorded her statement. The witness denied the suggestion that the injured was not in a condition to speak.
D.B. Criminal Appeal No. 335/2009 Abdul Waheed Vs. The State of Rajasthan 9 We have to examine whether the dying declaration Ex.P-15 recorded by Additional Chief Judicial Magistrate PW-17 Jagendra Kumar Agarwal suffers from any infirmity that render its trustworthiness doubtful? Dr. Ashok who gave certificate of fitness of the deceased to record statement, has not been examined but PW-17 Jagendra Kumar Agarwal has stated that he gave a letter Ex.P-14 to the duty doctor and asked him about her condition to give statement and when he endorsed fitness certificate of the deceased, only then he recorded her statement. From perusal of dying declaration Ex.P-15 recorded by PW-17 Jagendra Kumar Agarwal, it reveals that before recording statement of the deceased, the witness himself found her fit to give statement and a note to this effect was mentioned by him in Ex.P-15 before recording statement.
The learned ACJM verified the fact that it contains thumb impression of the deceased at two places. The dying declaration recorded by ACJM is in the form of questions and answers.
The Supreme Court in Atbir Vs. Government of NCT of Delhi reported in 2011 (1) WLC (SC) Cri. 107, laid down the following principles to be kept in view while dealing with a case of dying declaration:-
"(i) Dying declaration can be the sole basis of conviction if it inspires full confidence of the Court.
(ii) The Court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.
D.B. Criminal Appeal No. 335/2009 Abdul Waheed Vs. The State of Rajasthan 10
(iii) Where the Court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.
(iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.
(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.
(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.
(viii) Even if it is a brief statement, it is not to be discarded.
(ix) When the eye witness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.
(x) If after careful scrutiny, the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration".
The earliest version given by the deceased is the D.B. Criminal Appeal No. 335/2009 Abdul Waheed Vs. The State of Rajasthan 11 Parcha Bayan Ex.P-17 recorded by PW-19 Samiullah soon after receiving information from CHC, Chhabra, who was Second Officer in Police Station, Chhabra.
Moreover, the dying declaration Ex.P-15 recorded by PW-17 Jagendra Kumar Agarwal has been further corroborated by the statements of PW-16 Babu Khan who is father of the deceased, PW-18 Binno Bai-mother of the deceased and PW-19 Samiullah.
According to the statement of PW-16 Babu Khan and PW-18 Binno Bai, on being asked Sanno (the deceased) told them that accused-appellant Abdul Waheed poured kerosene oil on her body and set her on fire.
PW-20 Ramniwas Gujar conducted investigation of the case, has stated that he prepared site plan Ex.P-3. He seized one old Nutan stove vide Ex.P-4 and match stick, pieces of one burned ten rupee note vide Ex.P-5 from the place of occurrence.
According to seizure memo Ex.P-4 one old Nutan stove was seized and sealed by PW-20 Ramniwas and was marked "B". PW-20 Ramniwas also seized and sealed one match stick, one burned ten rupee note and pieces of red coloured glass bangles from the place of incident vide EX.P-5 and was marked "A".
The dying declaration Ex.P-15 was recorded on 18.04.2008 by PW-17 Jagendra Kumar Agarwal, the then ACJM No. 2, Kota after obtaining certificate from Dr. Ashok, who certified on Ex.P-14 that injured Sanno Bai is fit to give statement. Although Dr.Ashok has not been examined in Court, the truthfulness of the statement of PW-17 Jagendra Kumar Agarwal cannot be D.B. Criminal Appeal No. 335/2009 Abdul Waheed Vs. The State of Rajasthan 12 doubted, especially when the version of the deceased- Sanno Bai was similar in Parcha Bayan Ex.P-17. The version of the deceased-Sanno Bai recorded in her dying declaration is corroborated by other evidence on record.
In Mukesh Vs. State reported in 2012 (1) WLC (Raj.) 767, Coordinate Bench of this Court has held that absence of certificate of doctors as to fit state of mind of the deceased cannot make dying declaration unreliable. It was also held that fact of dying declaration was not corroborated is insignificant.
In view of above, absence of certificate of doctor as to fitness of mind of declarant would not render the dying declaration not acceptable. Essential requirement is that person who records the statement, must be satisfied that the deceased is in a fit state of mind to record statement. If the voluntary and trustful nature of declaration, can be otherwise established, it can be relied. To record the dying declaration, certification of doctor is rule of caution only.
It is settled law that considering the dying declaration in a case, the Court has to consider all the attending circumstances to form an independent opinion as to whether the dying declaration is properly recorded and whether it is voluntary and truthful. If the Court is satisfied that the dying declaration is true and free from any effort to induce the deceased to make a false statement and it is coherent and consistent, there should be no legal impediment to make it a basis of conviction even there is no D.B. Criminal Appeal No. 335/2009 Abdul Waheed Vs. The State of Rajasthan 13 corroboration.
In the case on hand, there is substantial corroborating evidence to support the case of prosecution and even independently proved what has been stated by the deceased in her dying declaration.
PW-17 Jagendra Kumar Agarwal, ACJM recorded the dying declaration of the deceased-Sanno Bai, has been examined, who proved the dying declaration Ex.P-15 recorded by him. According to the statement of PW-17 Jagendra Kumar Agarwal, duty doctor certified on ExP-14 that Sanno Bai is fit to give statement. From perusal of dying declaration Ex.P-15, it also reveals that before recording statement of the deceased-Sanno Bai, he (PW-17) himself found her fit to record statement and then he recorded her dying declaration. It cannot be accepted that Judicial Officer would make incorrect statement. From the material available on record and discussion made above, dying declaration recorded by the ACJM is not the result of tutoring, prompting or imagination and is true, voluntary and free from any effort to induce the deceased to make a false statement. There is no such contradiction in the statements of prosecution witnesses and the dying declaration of Smt.Sanno Ex.P-15, which create doubt on the prosecution story. It is proved that the dying declaration is true and voluntary and inspire confidence. Therefore, Ex.P-15 dying declaration of the deceased-Sanno Bai inspire confidence and can be made sole basis of conviction without any corroboration. Rather the dying declaration is also corroborated by D.B. Criminal Appeal No. 335/2009 Abdul Waheed Vs. The State of Rajasthan 14 evidence given by PW-1, PW-5, PW-9, PW-15, PW-16 and PW-18 also, which we will discuss hereunder.
PW-1 Haseena is the landlady in whose house the accused-appellant and the deceased were living with their children as tenant in a room which is adjacent to the room of the witness. PW-1 Haseena stated in her statement recorded in Court that often there was a quarrel between Abdul Waheed and Sanno, prior to the incident. Abdul Waheed used to demand money from his wife. On the day of incident, quarrel took place between Sanno and Abdul Waheed at about 8:00 PM. Sanno was demanding money for expenses and Abdul Waheed was telling her to bring Rs.50,000/- from her father as he is a rich person, else to go to her father. Abdul Waheed also told that he will kill her, if she will not go. Abdul Waheed picked Nutan stove and poured the kerosene oil on Sanno and set her on fire. When Sanno cried, the witness rushed to her and cried as she was burnt. Thereafter Imran came, she and Imran extinguished the fire and took her to hospital. When she reached on spot, Abdul Waheed and his children were there. Father of Sanno, Rafiq, Raju and other persons came there on hearing her cries. In cross-examination, the witness denied the suggestion that Abdul Waheed never demanded money from Sanno in her presence and she stated that he demanded money on the day of incident also. The witness did not see Abdul Waheed pouring kerosene oil on Sanno and setting her on fire. She denied the suggestion that Abdul Waheed gave Rs.50,000/- as loan to Babu Khan (father of the D.B. Criminal Appeal No. 335/2009 Abdul Waheed Vs. The State of Rajasthan 15 deceased) before 2-3 months of the incident. The witness has clearly stated that Abdul Waheed was demanding the money from Sanno as dowry. She advised Abdul Waheed many times not to give beatings then he told her not to intervene in between them.
PW-5 Usman Gani is grand uncle of the deceased, who stated that on the day of incident he came to Chhabra and was conversing with Babu Khan (PW-16) in his house at the time of incident. At that time Daanish son of Sanno (the deceased) had fled and told that his mother has been set on fire. Thereafter they went there and saw Sanno in burned condition, therefore, they took her to hospital. In cross-examination, the witness denied the suggestion that Abdul Waheed gave Rs. 50,000/- to Babu Khan (PW-16) on loan. Abdul Waheed is son of his sister. From the statement of this witness, it appears that the deceased is grand daughter of the brother of the witness and the accused is nephew of the witness and there is no evidence of his animosity with the accused-appellant.
PW-9 Daanish is son of the accused-appellant and the deceased, who gave a detailed account of the incident in his statement recorded in the Court. According to this witness, the accused-appellant gave beating to his wife Smt. Sanno (the deceased) with legs and fists. Thereafter, accused-appellant poured kerosene oil on her body and set her on fire. When the witness cried, accused-appellant threatened him to sit in corner, else to set him also on fire. Accused- appellant was laughing after locking the door of room D.B. Criminal Appeal No. 335/2009 Abdul Waheed Vs. The State of Rajasthan 16 from inside. Thereafter, accused opened the lock and fled away. Thereafter, Haseena came there and the witness went to call his Nana (maternal grand father) and told him that his mother has been set on fire. Then his maternal uncle Imran (PW-15), maternal grand father-Babu Khan ( PW-16), maternal grand mother Binno Bai (PW-18) and others came on the place of incident and took her mother to Chhabra hospital in auto rickshaw. The witness was subjected to cross- examination at length by counsel for the accused- appellant. In cross-examination, the witness denied the suggestion that he was not present on the spot at the time of incident and was sleeping in the house of his maternal grand father (Nanihaal). The accused- appellant used to tell the deceased to bring Rs.50,000/- from her father which was the cause of quarrel. The witness denied the suggestion that his Mummy (the deceased) set herself on fire. There are 2- 3 houses between house of his maternal grand father and their own room.
PW-15 Imran is brother of the deceased, who has stated that the marriage of his sister Sanno took place with accused-appellant before 8-9 years. Thereafter, they lived in Bhopal for 5-6 years. Whenever her sister came from Bhopal, she used to tell him that the accused-appellant usually makes a demand of Rs. 50,000/- in dowry and gives her beating. His father intervened but of no avail. Thereafter his father called her sister Sanno to Chhabra. After some time, Abdul Waheed also came to Chhabra and he continued to D.B. Criminal Appeal No. 335/2009 Abdul Waheed Vs. The State of Rajasthan 17 give beating to Sanno. On 17.04.2008 at about 9:00 PM, Daanish came weeping to their house and told that his Papa (the accused-appellant) set her Ammy (the deceased) on fire. When he rushed to the spot, he saw on the way that Abdul Waheed was fleeing from there. He reached to the spot and Haseena (PW-1) came from her house at the same time. We saw that clothes of Sanno were burning, then they extinguished the fire. A empty stove was lying in the room. His father, mother and other persons came there and took Sanno to hospital in auto rickshaw, thereafter she was referred to Kota where she died on 25.04.2008 during treatment. In cross-examination the witness denied the suggestion that his father took Rs. 50,000/- from Abdul Waheed-the accused. He admitted that accused did not set fire in his presence but he saw the accused fleeing away from the spot. The witness also denied the suggestion that his sister set herself on fire. The witness admitted that Daanish PW-9 told him that his father (the accused) set her Ammy (the deceased) on fire.
PW-16 is father of the deceased-Sanno, who gave similar statement as given by PW-15 Imran. The witness also stated that when they reached,he saw the deceased- Sanno was crying and saying save me. He asked her as to what happened then she told that she was set on fire after pouring kerosene oil. In cross-examination, the witness denied the suggestion that he took Rs.50,000/- from the accused before 3-4 months of the incident and said, rather he gave money to the accused.
PW-18 Binno Bai is mother of the deceased, who D.B. Criminal Appeal No. 335/2009 Abdul Waheed Vs. The State of Rajasthan 18 gave similar statement as given by PW-16 Babu Khan and PW-15 Imran. The witness also stated that she saw the accused fleeing away when she came to the spot from her house. When asked, her daughter (the deceased) told that her husband poured kerosene oil on her body and set her on fire and fled away. In cross-examination, the witness stated that Abdul Waheed demanded money from Sanno-the deceased in her presence also. The witness denied the suggestion that the deceased told her that he set herself on fire. She also denied the suggestion that Abdul Waheed gave Rs. 50,000/- to Babu Khan.
PW-20 Ramniwas Gujar, the then SHO, Chhabra conducted the investigation. This witness gave detailed account of the investigation in his statement recorded in the Court.
PW-21 Jivan Gupta, the then Dy.SP, Chhabra is the Second Investigation Officer. In statement recorded in the Court, the witness gave an account of the investigation conducted by him.
PW-1 Haseena is the next door neighbor of the place of incident, where the accused-appellant was residing with his wife (the deceased) and his children. On hearing hue and cry of the deceased, the witness rushed to the spot. Presence of the witness at the place of incident is proved by the statement of PW- 9 Daanish, PW-15 Imran, PW-16 Babu Khan and PW-18 Binno Bai and her presence at the place of incident is natural. There is no evidence of animosity of the witness with the accused-appellant. No such fact came D.B. Criminal Appeal No. 335/2009 Abdul Waheed Vs. The State of Rajasthan 19 in the cross-examination of the witness which may create any doubt on the truthfulness of the witness and there is no reason to disbelieve on the evidence given by this witness-PW-1 Haseena..
From the statements of PW-9 Daanish and PW-15 Imran, it is proved that residence of PW-15, PW-16, PW- 18 and place of occurrence are situated on a little distance. It is also not in dispute that the incident occurred at about 9:00 PM, therefore soon after the incident, presence of PW-5, PW-15, PW-16 and PW-18 at the place of incident is not unnatural. Therefore, there is no reason to disbelieve on the evidence given by these witnesses on the premise that they are interested witnesses.
It is argued that PW-9 Daanish is child witness and he was living with his maternal grand parents when he appeared in the witness box, therefore, he was tutored by the parents of the deceased. It is true that when PW-9 appeared in the witness box, his father (the accused-appellant) was in jail and he was living with his maternal grand parents PW-16 and PW-18. This child witness is the only witness who saw the whole incident and his presence at the place of occurrence is natural. The witness has been cross-examined at length. The evidence given by this child witness is corroborated by the evidence given by other witnesses and other attending circumstances of the case. Statements of this witness PW-9 Daanish is also corroborated by the dying declaration Ex.P-15. Therefore, there is no reason not to believe on the D.B. Criminal Appeal No. 335/2009 Abdul Waheed Vs. The State of Rajasthan 20 evidence given by this child witness.
In defence, accused-appellant got himself examined under Section 315 of CrPC as DW-3. The accused- appellant-DW-3 Abdul Waheed stated that he and the deceased Sanno were leading a happy married life. No quarrel took place between them. He never demanded dowry from Sanno. He lived with the deceased in Bhopal for 7 years. He was running a shop in Chhabra and was earning Rs. 400/- per day. He took some land on mortgage on sharing basis. He was having bank balance and was financially sound. He does not know as to how Sanno got burns because he was at his shop at the time of incident. Four police personnels came and brought him to police station. The witness exhibited certificate regarding ownership of a plot, bank statement and receipt, pass book etc. In Cross- examination, the witness stated that 25-30 houses are there between his house and shop.
DW-1 Munnu resident of Chhabra has stated that the accused-Abdul Waheed and his wife Sanno (the deceased) lived in his house as tenant for 11 months. Both were leading a happy married life. He never saw any quarrel between them. In cross-examination, the witness stated that he is a driver, thus remains out of house for the whole day and returns in evening.
DW-2 Mohammad Haneef resident of Bhopal has stated that Abdul Waheed was working on his tailoring shop in Bhopal who used to come to his house with his wife- Sanno. Relations between them were cordial. In cross- examination, the witness stated that Abdul Waheed is D.B. Criminal Appeal No. 335/2009 Abdul Waheed Vs. The State of Rajasthan 21 his brother in relation.
The contention of the accused-appellant is that the relations between him and the deceased were cordial and they were leading happy married life. It is not in dispute that the deceased-Sanno or her parents or her brother have never registered any case against the accused-appellant but from the evidence given by PW-15 Imran, PW-16 Babu Khan, PW-18 Binno Bai, PW-9 Daanish, PW-1 Haseena and PW-5 Usman Gani, it reveals that the accused-appellant used to demand from his wife Sanno (the deceased) Rs. 50,000/- and told her to bring the amount as dowry from her father. It also reveals that because of subjecting her to cruelty and demand of dowry while living at Bhopal, the parents of the deceased called her to Chhabra and after some time the accused-appellant also left Bhopal and started living at Chhabra. It is pertinent to note that no such suggestion regarding cordial relations was given to the aforesaid witnesses in their cross-examination.
From statement of PW-1 Haseena, it reveals that the accused-appellant usually subjected the deceased- Sanno to cruelty for demand of dowry, therefore the theory of cordial relations between the deceased and the accused-appellant put forth by the accused- appellant is afterthought.
On having a look on the documentary evidence produced by the accused, it appears that the accused purchased a life insurance policy in the year 2003 for sum assured Rs. 75,000/-, premium whereof was Rs. 1238/- per quarter. Ex.D-10 is a certificate about D.B. Criminal Appeal No. 335/2009 Abdul Waheed Vs. The State of Rajasthan 22 entry in the register of Notary Public on 09.11.2005 regarding attestation of an agreement of sale of a plot in favour of the accused-appellant for consideration of Rs. 27,000/-. Ex.D-11 appears to be copy of loan account of the accused in Syndicate Bank, Bhopal. Ex.D-12 and Ex.D-13 are the bank deposit slip and pass book respectively of the accused-appellant which are of subsequent date, of the incident.
From these documents, it does not reveal that the accused-appellant is financially sound. To our mind, even otherwise also, it cannot be presumed that an financially sound person will not make demand for dowry. Therefore, the evidence produced in defence is not of much help to the accused-appellant.
PW-3 is witness of inquest report Ex.P-2. PW-4 Islam is witness of site plan Ex.P-3, recovery memo of stove Ex.P-4, recovery memo of match stick, burned note of Rs. 10/- and broken glass bangles Ex.P-5 and memo of photography Ex.P-6.
PW-6 Ramjan Khan is witness of inquest report Ex.P-2 and delivery memo of dead body Ex.P-7.
PW-10 Chhutan Lal, Sub Inspector of Police gave evidence regarding preparation of inquest report Ex.P-2 and delivery memo of dead body of Sanno Ex.P-7.
PW-11 Shankar Lal is Maalkhana Incharge in Police Station, Chhabra, has stated that SHO Ramniwas gave him two sealed packets marked "A" and "B" and he deposited the same in Maalkhana and made entries in the register accordingly. He also stated that he gave sealed packet marked "B" to Constable Ashok Kumar with forwarding D.B. Criminal Appeal No. 335/2009 Abdul Waheed Vs. The State of Rajasthan 23 letter to be deposited in FSL. Ashok deposited the same in FSL against receipt and gave the same to him.
PW-13 Ashok Kumar (the witness examined twice as PW-22 also) has corroborated the statement of PW-11 Shankar Lal.
PW-12 Vishal is photographer, who took photographs Ex.P-11 and Ex.P-12 of spot on police request and signed the memo of photography Ex.P-6.
PW-14 Abdul Lateef is witness of site plan Ex.P-3, recovery memo of stove Ex.P-4 and recovery memo of match stick, burned ten rupee note and broken glass bangles Ex.P-5.
PW-20 Ramniwas Gujar, the then SHO, Chhabra is Investigation Officer of the case, gave a detailed account of investigation conducted by him.
PW-21 Ramjivan Gupta, the then Dy.SP, Chhabra also investigated the case, has stated that on receipt of case diary of the case for further investigation, he recorded the statements of witnesses and arrested the accused Jahid Ali and Abdul Hameed and returned the file to SHO after completion of investigation.
Learned counsel for the appellant also argued that there is no motive in this case and in absence of that it cannot be accepted that the accused-appellant has committed murder of his wife-the deceased. Hon'ble the Apex Court in case of Vijay Shankar Vs. State of Haryana reported in (2015) 12 SCC 644, has held that in each and every case, it is not incumbent on the prosecution to prove the motive for the crime. Often, motive is indicated to heighten the probability of the D.B. Criminal Appeal No. 335/2009 Abdul Waheed Vs. The State of Rajasthan 24 offence that the accused was impelled by that motive to commit the offence. Proof of motive only adds to the weight and value of evidence adduced by the prosecution. If the prosecution is able to prove it's case on motive, it will be a corroborative piece of evidence. But even if the prosecution has not been able to prove it's case on motive that will not be a ground to throw the prosecution case nor does it corrode the credibility of the prosecution case. Absence of proof of motive only demands careful scrutiny of evidence adduced by the prosecution. In view of this, the argument of learned counsel for the appellant cannot be accepted.
In view of the above, the evidence produced by the prosecution is cogent and reliable and the prosecution has successfully proved the charge of Section 302 and 498A of IPC against the accused-appellant beyond reasonable doubt. The learned trial Court has looked into every material aspect of the matter and rightly convicted the accused-appellant. There is no scope to interfere in the impugned judgment of conviction and order of sentence passed by the learned trial Court.
For the above reasons, we see no infirmity in the impugned judgment. There is no merit in the submissions raised on behalf of the accused-appellant.
Resultantly, the appeal is dismissed.
(Dinesh Chandra Somani),J. (Ajay Rastogi),J. Manish