Madhya Pradesh High Court
Barkat Khan vs The State Of Madhya Pradesh on 13 April, 2018
Equivalent citations: AIRONLINE 2018 MP 1475
Author: J.P. Gupta
Bench: J.P.Gupta
1
Cri.A.No.418.2008
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR
(DIVISION BENCH : HON'BLE SHRI JUSTICE J.K.MAHESHWARI &
HON'BLE SHRI JUSTICE J.P.GUPTA)
Criminal Appeal No. 418 / 2008
Barkat Khan and two others
Vs.
State of Madhya Pradesh
Shri R. S. Shukla, Advocate has been appointed as Amicus curiae
for the appellants-accused.
Shri Pradeep Singh, learned Govt. Advocate for the respondent -
State.
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Whether approved for reporting : (Yes / No).
JUDGMENT
(Delivered on 13th day of April, 2018) Per J.P. Gupta, J :
The appellants have preferred the present appeal being aggrieved by the impugned judgment dated 1.12.2007 passed by Sessions Judge, Damoh in S. T. No.59/05 whereby they have been convicted for commission of offence under Sections 302, 302/34 and 201 of IPC and each of them has been sentenced to undergo life imprisonment along with fine of Rs.1000/-; in default of payment of fine further 2 months rigorous imprisonment and RI for 2 years along with fine of Rs.500/-; in default of payment of fine further 15 days RI, respectively. All the sentences are ordered to run concurrently.
2. The facts giving rise to this appeal in brief are that the marriage of the deceased Anjana @ Gudiya was solemnized with appellant no.2 Subhan on 20.5.2001 according to Muslim customs; and appellant no. 1 Barkat is the father and appellant no. 3 Smt. Siya Rani is 2 Cri.A.No.418.2008 the mother of appellant no. 2 Subhan and after marriage, the deceased lived with the appellants in the matrimonial house in village Magron, District Damoh and the deceased died in the intervening night of 2.2.2005 and 3.2.2005 in suspicious circumstances and the information so as to the death of the deceased was given by appellant no.1 Barkat to the Police Station Magron which was recorded as merg no. 4/05 which is Ex.P/5 and the dead body of the deceased was sent for postmortem and the postmortem was conducted by Dr. R. K. Shrivastava (PW-10). As per the postmortem report Ex.P/13 on the person of the deceased ante mortem injury was found and the cause of death was strangulation. During inquiry it also revealed that the deceased was subjected to cruelty in connection with demand of dowry. In this regard, the deceased had complained several times to her parents that the appellants were demanding motorcycle, colour T.V., Fridge, golden chain and Rs.20,000/- in cash and they very often used to beat her and also gave mental and physical torture. On the basis of result of merg inquiry, on 12.2.2005 in the police Station Magron FIR Ex.P/14 was registered at crime no.8/05 for the offence under sections 304-B, 498-A, 34 of the IPC and later on, sections 302 and 201 of the IPC were also added. After completion of the investigation, the charge sheet was filed against the appellants before the Court of JMFC, Hatta, District Damoh who on its turn committed the case to the court of Sessions for trial.
3. During trial, learned trial Court framed charges for the offence under Sections 498-A, 302, 302/34, 304-B, 201 of the IPC against the appellants / accused persons. They abjured their guilt and claimed to be tried. Their defense was that they are innocent. The deceased committed suicide on account of ailment of acute stomach pain. In their defence, appellant no. 1 Barkat and appellant no. 2 Subhan adduced their neighbour Akbar Khan as DW-1 and Dr. Abdul Jabbar Qureshi as 3 Cri.A.No.418.2008 DW-2 who allegedly treated the deceased with regard to ailment of stomach pain. Learned trial Court after completion of the trial convicted and sentenced the appellants as per the impugned judgment as mentioned earlier.
4. The finding of the learned trial court is based on the circumstantial evidence. Learned trial court has considered the following circumstances; (i) the death of the deceased had taken place in the house of the appellants and the death was unnatural; (ii) medical evidence established the fact that the death had taken place due to strangulation and there were also ante-mortem injuries on the person of the deceased; (iii) After death of the deceased, the conduct of the appellants shows that they took false defence to establish the fact that the death was taken place on account of suicide and (iv) the appellants demanded dowry and subjected the deceased to cruelty for fulfillment of their demand.
5. The aforesaid findings of the learned trial court have been assailed in this appeal on the grounds that the learned trial court has not appreciated the circumstantial evidence in right perspective. Neither the medical circumstance has been proved beyond reasonable doubt nor are all the circumstances sufficient to prove the charges against the appellants beyond reasonable doubt. The allegations and the statements of the parents of the deceased with regard to demand of dowry by the appellants are not specific and before death no complaint was ever made to any authority with regard to demand of dowry or harassment. The deceased was suffering from ailment of acute stomach pain, because of which, she committed suicide by hanging herself in the night. Dr. R.K. Shrivastava (PW-10) has categorically stated that the death may be caused by hanging, in other words, there is no conclusive finding of the medical expert that the cause of death of the deceased was strangulation. From the symptoms 4 Cri.A.No.418.2008 the cause of death may be strangulation or hanging herself. Therefore, it cannot be said that the death of the deceased was homicidal. So far as the injuries found on the person of the deceased are concerned, on the basis of presence of the injuries on the person it cannot be inferred that the nature of the death was homicidal because there is no opinion of the medical expert that the injuries were caused at the same time where the injuries led to asphyxia which was the cause of death, was caused. In the circumstances, the said ante-mortem injuries might be caused several hours before the death in the course of harassment or torture without having intention to cause death in connection with demand of dowry. Merely on the ground that the death had taken place in the matrimonial house of the deceased, all the persons residing in the same house cannot be convicted for commission of murder merely on account of failure of showing cause of death. Similarly, considering all the evidence in right perspective it cannot be said and held that the defense taken by the appellants is completely false. They have proved their defence by adducing their evidence and also the circumstances appeared in the case, from the statement of Senior Scientist Officer of Crime Unit Dr. Kiran Singh (PW-8) about the possibility of suicidal death of the deceased.
6. Apart from it, merely on the ground that the defense as took place by the accused was found false, accused cannot be convicted. This circumstance can only be considered to corroborate the substantial evidence with regard to facts an issue. In view of the aforesaid circumstances, it cannot be said beyond reasonable that all the accused persons have committed murder of the deceased and also destroyed the evidence with a view to escape themselves from the conviction and sentence of the offences.
7. Learned counsel has further contended that if all the circumstances are considered to be proved then only appellant no. 2 5 Cri.A.No.418.2008 may be convicted for commission of offence punishable under Section 304-B of the IPC and appellants no. 1 and 3 for commission of offence under Section 498-A of the IPC.
8. Learned GA appearing for the respondent / State has argued in support of the impugned judgment and stated that the finding of conviction and sentence of the learned trial court is in accordance with law. No interference is required in the impugned judgment. Hence, the appeal be dismissed.
9. Having considered the contentions of learned counsel for the parties and on perusal of the record, in this case it is not controversial that the death of the deceased had taken place within four years of her marriage with appellant no.2 in the matrimonial house and appellants no. 1 and 3 are parents of appellant no. 2. These facts have been disclosed by the parents of the deceased, Siddhiq (PW-1), Vilkis Bi (PW-4) and her younger brothers Abdul Naseer (PW-2) and Asgar Khan (PW-5) and their truthfulness has not been denied by the appellants in the examination under Section 313 of the Cr.P.C.
10. The parents of the deceased, Siddhiq (PW-1) and Vilkis Bi (PW-4) and her younger brothers Abdul Naseer (PW-2) and Asgar Khan (PW-5) have also categorically stated that after marriage whenever the deceased came to their house from the matrimonial home she had complained against the appellants that they subjected the deceased to the cruelty and harassed and tortured in connection with demand of cooler, colour T.V., Fridge, motorcycle, golden chain and Rs.20,000/- in cash and they also beaten her. Jaibun (PW-3), who is neighbour of the father of the deceased, has also stated that whenever the deceased came to her parental house she had made aforesaid complaint to her.
11. Having gone through the record and considering the arguments of learned counsel of the appellants, we find no material to 6 Cri.A.No.418.2008 discard the aforesaid evidence. Jaibun (PW-3) is an independent witness. There is no reason to falsely implicate the appellants in the case. In view of her statement corroborating the statement of the parents and younger brothers of the deceased, we also hold that in connection with demand of dowry the deceased was subjected to cruelty by the appellants.
12. Now the crucial question is that whether the prosecution has established the fact that nature of the death of the deceased was homicidal. Dr. Kiran Singh (PW-8) who inspected the scene of crime as a Senior Scientist Officer of Crime Unit has stated that body of the deceased was lying on the cot. Pale sticky substance coming out from nostrils was found. Mouth was found semi open. Saliva was found flowing towards right side from mouth. Ligature marks were seen on front part of the neck. There was half inch gap between both ligature marks and they were extended below left ear and right ear. The deceased was wearing some bangles in both hands and some pieces of the bangles were found lying down outside of the house and some were on the place where the incident had taken place. In the room where the incident had allegedly taken place, there was a staircase having 8 steps and on the second stair, a piece of bangle of pale colour was found lying. After examination, he prepared a report which is Ex.P/7.
13. Dr. R. K. Shrivastava (PW-10) who conducted autopsy on the body of the deceased on 4.2.2005 at Primary Health Centre, Hatta, district Damoh, has stated that face was swollen and congested. Lips were blue. Veins were seen puffy on upper part of chest and neck and upto the shoulder. Tongue was not found out. Shit was found around anal. Bloody foam escaped from the mouth and nostrils. There were stains of dried saliva on both corners of mouth. The following external injuries were found on the body of the deceased:-
7Cri.A.No.418.2008
1. One bruise with brown colour of size 3 x 1 ½ cm on the upper side of sternomastoid muscle rift on right side of neck.
2. One bruise with abrasion of brown colour of size 4 x ½ cm on the anterior aspect of neck above the thyroid cartilage.
3. Two bruises with abrasion of size 3 x ½ cm on the middle side of sternomastoid muscle region on left side of neck.
4. One linear abrasion of size 1 ½ x ¼ cm on the lower side of sternomastoid region on the left side of neck.
5. Four bruises with abrasion of size 2 x 2 cm on right shoulder over supra scapular region.
6. Two bruises with abrasion of size 1 x 1 cm on dorsal of right hand.
7. Two bruises with abrasion of 1x1 cm on anterior aspect of knee.
8. One abrasion of size ½ x ½ cm on anterior aspect of right knee front.
This witness has further stated that all the injuries were ante mortem and caused by hard and blunt object. The cause of death was asphyxia on account of strangulation within 24 to 36 hours from the commencement of postmortem and prepared report which is Ex.P/13.
14. Dr.R.K. Shrivastava (PW-10) further in his cross- examination has admitted that in case of suicide by hanging, there is a possibility of fracture on the hyoid bone and in case of suicide by hanging, from both the nose and mouth, saliva may escape and such death may be possible by hanging.
15. If we simultaneously read the statements of Dr. Kiran Singh (PW-8) and Dr. R. K. Shrivastava (PW-10), prima facie it appears that on the basis of aforesaid evidence it cannot be said beyond reasonable doubt that the nature of the death was homicidal. There is a reasonable 8 Cri.A.No.418.2008 possibility that the death might be taken place on account of hanging in commission of suicide. Learned trial Court without considering the complete opinion of Dr. R.K. Shrivastava (PW-10) and Dr. Kiran Singh (PW-8) who disclosed the symptoms appeared on the body of the deceased as medical science does not claim that in every case cause of death can be determined without any failing in case of symptoms of hanging or strangulation. In such circumstances, benefit should be given to the accused. Hence, we hold that the prosecution has failed to prove the fact beyond reasonable doubt that nature of the death of the deceased was homicidal. However, it has been established that the death had taken place in suspicious circumstances or by hanging in commission of suicide. Hence, it is also held that the death of the deceased had taken place in suspicious circumstances or the deceased committed suicide by hanging.
16. Now the next question is that whether the deceased was subjected to cruelty soon before her death by the appellants or by anyone else. The parents of the deceased, Siddhiq (PW-1) and Vilkis Bi (PW-4) and younger brothers Naseer (PW-2) and Asgar (PW-5) have stated that lastly the deceased came their house on 14.1.2005 and they met her. But they have not stated that on that date or sooner or later before, any act was committed by the appellants that can be considered in the form of torture or harassment by the appellants to the deceased. But Dr. R. K. Shrivastava (PW-10) has categorically stated that there were some injuries on the right and left legs; and right hand. But, there is no specific evidence that the injuries no. 5 and 8 as stated earlier were caused in the course of commission of suicide by hanging or by strangulation; it may be caused few hours before in separate incident as no specific duration has been suggested by the medical expert. The presence of these injuries reflects that the deceased was subjected to cruelty soon before her death. Now, further question 9 Cri.A.No.418.2008 arises for consideration as to who caused the aforesaid injuries. There is no specific evidence about the question as to who caused the aforesaid injuries. Only on the basis of the circumstances it can be decided who is responsible for causing the aforesaid injuries. If in the matrimonial house any such incident takes place, the husband is duty bound to explain the circumstances if his presence is found in the house at the time of commission of incident. Other family members may be involved or not but against them no inference can be drawn under Section 106 of the Evidence Act. There must be some positive evidence to prove their involvement in the incident which is not available in this case. Hence, only appellant no. 2 Subhan being the husband can be held responsible for committing the dowry death of the deceased as his presence in the house is not denied by him as he himself as a defense witness no. 3 has accepted his company with the deceased in the fateful night.
17. In view of the aforesaid discussions, we find that learned trial Court did not appreciate the evidence in right perspective and wrongly came to the conclusion that all the appellants committed murder of the deceased and willfully involved in disappearing the evidence of the crime with a view to escape themselves from the punishment and taking a false stand in defense in not substantive piece of evidence. It can be considered only a circumstance to strengthen the version of the prosecution. In view of us, neither the annunciated circumstances have been proved by the prosecution beyond reasonable doubt nor was the circumstance sufficient to hold all the appellants guilty for the aforesaid offence. Hence, the finding of the learned trial court is hereby set aside and all the appellants are acquitted of the commission of offence under Sections 302, 302/34 and 201 of IPC.
18. In view of the findings recorded by us herein above, against appellant no. 1 Barkat Khan and appellant no.3 Smt. Siya Rani offence under Section 498-A of the IPC is found to be proved and against 10 Cri.A.No.418.2008 appellant no. 2 Subhan offence under Section 304-B of the IPC is found to be proved. So far as the sentence part is concerned, appellants no. 1 and 3, Barkat Khan and Smt. Siya Rani have remained in custody from 12.2.2005 till 13.5.2005 and 12.2.2005 till 4.5.2005, respectively during trial and after passing of the judgment from 1.12.2007 till 12.3.2008; and appellant no. 2 Subhan is in custody since 1.12.2007 till today. Hence, appellant no. 1 Brakat Khan and appellant no. 3 Smt. Siya Rani are sentenced to the period already undergone by them in jail and appellant no. 2 Subhan @ Sukai Khan is also sentenced to the period already undergone by him in jail which is near about 11 years.
19. Appellants no. 1 and 3 are on bail. Their bail bonds stand discharged. Appellant no. 2 Subhan is in jail. He is directed to be released forthwith if not required to be detained in any other case.
20. A copy of this order be sent immediately to the trial Court and the jail Authorities concerned for information and necessary compliance.
We also express our words of gratitude for the assistance rendered by Amicus Curiae.
The appeal is partly allowed and disposed of with the aforesaid.
(J.K.MAHESHWARI) (J.P.GUPTA)
JUDGE JUDGE
JP/-
JITENDRA Digitally signed by JITENDRA KUMAR
PAROUHA
DN: c=IN, o=High Court of Madhya
KUMAR
Pradesh, ou=Administration,
postalCode=482004, st=Madhya Pradesh,
2.5.4.20=a650f9cd964b96221568096ac01
ab1bf019e0b76f6fc652f893c6324a2f64a5
PAROUHA a, cn=JITENDRA KUMAR PAROUHA
Date: 2018.04.13 18:47:24 +05'30'