Gujarat High Court
Sharifkhan Jarifkhan Pathan vs State Of ... on 28 January, 2015
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
R/CR.A/250/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL (AGAINST CONVICTION) NO. 250 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE Z.K.SAIYED
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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SHARIFKHAN JARIFKHAN PATHAN....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR R.K.MANSURI, ADVOCATE for the Appellant(s)
MR. HARDIK SONI, APP, for the Opponent(s)/Respondent(s)
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CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 28/01/2015
ORAL JUDGMENT
[1] The present conviction Appeal has been filed by the appellants- original No.1 of Sessions Case No.174 of 2008, under Section 374 of the Cr. P.C., against the Judgment and order dated 29.12.2010 rendered by the Page 1 of 17 R/CR.A/250/2011 JUDGMENT learned 2nd Additional Sessions Judge, Vadodara, in Sessions Case Nos. 174 and 175 of 2008, whereby the appellant-accused No.1 was convicted for the offence punishable under Sections 306 of the Indian Penal Code and sentenced to undergo 10 years rigorous imprisonment with fine of Rs.3,000/-, in default of payment of fine, further simple imprisonment of 6 months and for the offence punishable under Section 498-A of IPC and sentenced to undergo 2 years simple imprisonment with fine of Rs.1,000/-, in default of payment of fine, further simple imprisonment of 3 months and for the offence punishable under Sections 3 of the Dowry Prohibition Act and sentence to undergo 5 years rigorous imprisonment with fine of Rs.15,000/-, in default of payment of fine, further simple imprisonment of 6 months. Accused Nos.2 to 6 were acquitted from the charges levelled against them by the learned trial Judge and against the said order of acquittal, State has not preferred any appeal.
[2] According to the prosecution case, one sharifkhan Zarifkhan Pathan, resident of 303, Taslim flat, informed to J.P.Road Police Station that his wife Farhatbanu Sharifkhan Pathan closed the door from inside and efforts were made to open the said door. Then, in presence of residents of apartments, the broke the said door and found that his wife strangulating with the fan. Therefore, immediately private doctor was called, who confirmed the death of his wife. Therefore, on 23.10.2007, Accidental Death Inquiry was registered bearing registration No.40 of 2007 under Page 2 of 17 R/CR.A/250/2011 JUDGMENT Section-174 of Criminal Procedure Code. Thereafter, on 28.10.2007, mother of the victim-Mehrunisha Sagirkhan Pathan lodged complaint before the J.P.Road Police Station alleging that husband and in-laws of her daughter were giving harassment and cruelty and they also pressurized her for dowry. In the complaint, she further alleged that physical and mental torture was given to her daughter and she was also beaten and in result of the same, she compelled to commit suicide. Therefore, against all the accused, offence was registered and accused Nos.1 to 5 were arrested on 08.11.2007 and produced before the learned Judicial Magistrate, Vadodara. Then investigation was carried out and statements of the witnesses were recorded. Dead body of the victim was sent to the hospital for medical check-up and inquest panchnama was drawn. Post-mortem was carried out. Thereafter, on 29.12.20007, charge-sheet was filed against accused Nos.1 to 5 for the alleged offences punishable under Sections-306, 498A and 114 of IPC read with Sections-3 and 5 of the Dowry Prohibition Act. In the charge-sheet, in column No.2, Zubedabibi Zarifkhan Pathan was shown as absconder and on 19.02.2008, she was arrested and separate charge-sheet was filed against her for the offences punishable under Sections 306, 498A and 114 of IPC read with Sections-3 and 5 of the Dowry Prohibition Act. As the said cases were exclusively triable by the Court of Sessions, learned Chief Judicial Magistrate, Vadodara, committed the cases to learned 2 nd Additional Page 3 of 17 R/CR.A/250/2011 JUDGMENT Sessions Judge, Vadodara, which were thereafter, numbered as Sessions Case Nos.174 and and 175 of 2008.
[3] On the basis of above allegations, charge was framed against the appellants-accused vide Exh.4 and read-over and explained to the appellants-accused for the offences punishable under Sections-306, 498A and 114 of IPC read with Sections-3 and 5 of the Dowry Prohibition Act. Then plea was recorded, wherein, appellants-accused pleaded not guilty to the charge and claimed to be tried.
[4] In support of the prosecution case, prosecution has examined following oral evidences :-
Sr. Exh. Name of Witness
No.
1 23/11 Mehrunisha Sagirkhan Pathan
2 31/14 Doctor Vaishakhiben Yashwantray Shukla
3 34/17 Mohammed Hanif Nizambhai Chauhan
4 35/18 Imtiaz Hasanbhai Patel
5 38/19 Kadirkhan Sagirkhan Pathan
6 43/20 Muminaben Sagrikhan Pathan
7 44/21 Saminaben Shahidkhan Pathan
8 46/20 Mustafa Samatkhan Pathan
9 49/23 Parshottambhai Somabhai
10 51/25 Chauhan Dalpatsinh Ratansinh
11 53/27 Zarinaben Mustafa Pathan
12 54/28 Nurhat Parvin
Page 4 of 17
R/CR.A/250/2011 JUDGMENT
13 55/29 Laljibhai Kaljibhai
14 66/33 Vikramisinh Sajjanji Raulji
Defence witness
1 75/35 Abbasbhai Ibrahimbhai Patel
[5] In support of the prosecution case, the prosecution
has produced several documentary evidences like
complaint at Exh.24, application given by the complainant to PI, J.P.Road, Police Station at Exh.25, yadi for inquest panchnama to Executive Magistrate at Exh.56, inquest panchnama at Exh.56, yadi to Medical Officer by ASI, J.P. Road Police Station at Exh.33, PM report at Exh.32, receipt of dead body at Exh.17/7, panchnama of place of offence and original copies of station diary at Exh.50 and 52.
[6] Thereafter, after filing closing pursis by the prosecution, further statements of appellants-accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded, wherein, it is admitted by the appellants- accused that they were innocent and they have not committed any offence and were wrongly charge-sheeted. The appellants-accused have denied the case of the prosecution and submitted that a false case is filed against them.
[7] After considering the oral as well as documentary evidence and after hearing the parties, learned 2nd Additional Sessions Judge, Vadodara vide impugned judgment and order dated 29.12.2010 held the appellant-
Page 5 of 17R/CR.A/250/2011 JUDGMENT accused No.1 guilty to the charges levelled against him under 306, 498A and 114 of IPC read with Sections-3 and 5 of the Dowry Prohibition Act., and convicted and sentenced the appellant-accused No.1, as stated above and acquitted the accused Nos.2 to 6 from the charges levelled against them.
[8] Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned 2nd Additional Sessions Judge, Vadodara, the present appellant-accused No.1 has preferred this appeal.
[9] Heard Mr.R.K.Mansuri, learned advocate for the appellant-accused and Mr.Hardik Soni, learned Additional Public Prosecutor for the respondent-State.
[10] Mr.R.K.Mansuri, learned advocate for the appellant- accused contended that the present appellant-accused is a husband of the victim and other acquitted accused are in-laws. He read the charge at Exh.4 and contended that it is the case of the prosecution that during the marriage life with the present appellant-accused with the victim, demand was made by the appellant-accused towards dowry and she was also beaten by the appellant-accused with the help of other co-accused. Further, it is alleged that physical and mental torture was also given and in result of the said harassment and cruelty meted out by the accused, she committed suicide. Mr.Mansuri, vehemently argued that it is the duty of the prosecution to establish its case beyond reasonable doubt for the alleged offence under Section-306 of IPC. He read Sections-107 Page 6 of 17 R/CR.A/250/2011 JUDGMENT and 108 of the IPC and argued that prosecution failed to produce any iota evidence either in form of oral or documentary to establish and prove that victim committed suicide because of instigation, provocation and abetment given by the appellant and other co-accused. He further contended that when main ingredient of Provision of abetment is not proved and established through oral and documentary evidence, learned trial Judge cannot convict the present appellant-accused for the said alleged offence. He further argued that prosecution has examined the witnesses, who are family members of the complainant and therefore, it appears that the present appellant- accused was targeted just to convict him for the alleged offences. He further contended that complaint filed by the complainant after a delay of five days, which indicates that it was an afterthought and just to harass the appellant and other co-accused, concocted complaint filed by the complainant. Further, to file complainant, the complainant took legal advice from the advocate and under the legal advise, the complainant filed concocted complaint of 7 pages. Mr.Mansuri, read the evidence of the complainant, maternal uncle, sister and brother of the deceased and argued that all the witnesses disclosed the facts in such a fashion so that they could support the evidence of the complainant and thereby they tried to convict the present appellant-accused. Mr. Mansuri, read the cross-examination of the complainant and argued that as far as the allegations against the present appellant-
Page 7 of 17R/CR.A/250/2011 JUDGMENT accused regarding demand of dowry and are concerned, its ingredients are required to be proved through oral and documentary evidences. He vehemently argued that in the cross-examination of the complainant, it is prima-facie established that ingredient of definition of dowry could not prove and it is wrongly observed by the learned trial Judge that complainant has rightly dragged the appellant and other co-accused in the complaint.
[10.1] Mr.Mansuri, further read the evidence of PW-2- Dr.Vaishakhi Yashwantray Shukla, who carried out post- mortem of the victim and who was examined at Exh.14. Mr.Mansuri, fairly admitted that ligature mark was found from the body of the victim, but age of the injury could not establish through oral evidence of this witness. This witness, in her cross-examination, disclosed that the death of the deceased might have taken place prior to six hours of post-mortem. Therefore, it is the duty of the prosecution to establish the age of the injury. Mr.Mansuri, argued that it was the defence of the appellant-accused that at the time of incident, he was not present and his presence is also not established by the prosecution and thus, question of abetment cannot arise at all. Mr.Mansuri, further argued that when main ingredient of Section 306 of IPC is not established through presence of appellant- accused at the place of offence, present appellant- accused cannot be convicted by the learned trial Judge. Mr.Mansuri, further read the contents of the complaint at Exh.24 and PM note at Exh.32 and contended that in Page 8 of 17 R/CR.A/250/2011 JUDGMENT support of the said evidences, PW-3-Mohammed Hanif Nizambhai Chauhan is a material witness, who drawn the panchnama of place of offence, declared as a hostile and though his evidence, the prosecution failed to establish its case. He further drew attention of the Court to oral evidence of PW-4-Imtiaz Hasanbhai Patel, who was examined at Exh.18, who is also a panch witness and contended that during cross-examination, the said witness also declared as hostile and therefore, though this witness, the prosecution could not produce any iota of supportable evidence on record.
[10.2] He further read the evidence of PW-5-Kadirkhan Sagirkhan Patha, who was examined at Exh.38/29, is a brother of the deceased and son of the complainant. Mr.Mansuri, submitted that this witness can be called as tutor witness because he was guided by the complainant and he deposed irrelevant facts of the case as per the whims of the complainant. He further argued that he is the brother of the deceased and is also a interested witness and as he was relative of the deceased, his evidence cannot be considered. He read the cross-examination also and contended that though his evidence, defence has established contradictory story of the prosecution case.
[10.2] He further read the evidence of PW-6-Muminaben Sagirkhan Pathan, who was examined at Exh.43/20, who is a sister of the deceased and daughter of the complainant and contended that she is also a related witness and can be called as tutor witness because she has no personal Page 9 of 17 R/CR.A/250/2011 JUDGMENT knowledge of the case and just to support the evidence of the complainant and his brother, in her chief and cross- examination, she deposed concocted and false story.
[10.3] He further read the evidence of PW-7-Saminaben Shahidkhan Pathan, who was examined at Exh.44/21 and repeated his argument on the same line that she is also a tutor witness and she is daughter of the complainant and sister of the deceased. Further, just to obtain and get common intention of family and to convict the present appellant-accused, she deposed concocted and false story in her chief and cross-examination against the appellant- accused and therefore, her evidence cannot be considered as trustworthy, acceptable and reliable.
[10.4] He further read the evidence of PW-8- Mustafakhan Samatkhan Pathan, who was examined at Exh.46/20, who is maternal uncle of the deceased and contended that he also did not have any personal knowledge and he simply disclosed that demand of dowry was made by the present appellant-accused and mental and physical torture was also given to the deceased by the appellant. Mr.Mansuri, argued that allegations of demand of dowry must be proved beyond reasonable doubt and evidence of this witness is not sufficient to prove the case of the prosecution for the alleged offence of dowry.
[10.5] He further read the evidence of PW-9- Parshottambhai Somabhai, who was examined at Exh.43/23 and PW-10-Chauhand Dalpatsinh Ratansinh, Page 10 of 17 R/CR.A/250/2011 JUDGMENT who was examined at Exh.51/25.
[10.6.] In support of the prosecution case, prosecution examined another witness-Pw11-Zarinaben Mustafa Pathan, who was examined at Exh.53/27, who is sister in law of the deceased and contended that she is also a related witness and therefore, her evidence also cannot be considered as genuine in eye of law. Through her cross- examination, defence has established that present appellant-accused was wrongly booked by the police, but learned trial Judge has not considered the same.
[10.7] Mr.Mansuri, further submitted that the prosecution has developed concocted story through the evidence of PW-12-Nurhat Parvin, who was examined at Exh.54/28, who is a friend of the victim and she deposed unbelievable and got up story just to support the case of the prosecution and therefore, also her evidence cannot be considered. Even though prosecution has cited her as star witness of the case.
[10.8] Mr.Mansuri, further read the evidence of PW-13- Laljibhai Kaljibhai, ASI, who was examined at Exh.55/29 and contended that during the inquiry made by this witness under Section-174 of the Code of Criminal Procedure, relevant statements of the witnesses were recorded by him. During the said inquiry, it was established that there was no cruelty, harassment and abetment and therefore, it can be said that false and concocted complaint was filed by the mother of the deceased after a delay of 5 days and that too under the Page 11 of 17 R/CR.A/250/2011 JUDGMENT instructions of advocate and in result of that evidence, prosecution has argued that the prosecution has proved its case beyond reasonable doubt.
[10.9] Mr. Mansuri, again argued at length that when main ingredient of Section-306 of the IPC and Sections-3 and 5 of Dowry Act are not proved prima-facie, learned trial Judge has wrongly convicted the present appellant- accused.
[10.10] He read the oral witness of DW-1-Abbasbhai Patel and contended that he is an independent witness and though his evidence also, defence has established its case, even though, learned trial Judge has discarded his evidence.
[10.11] He read the judgment and order of acquittal and argued that learned trial Judge has committed grave error in considering the evidences of related witnesses and wrongly convicted the appellant-accused. At the last, Mr. Mansuri, learned advocate, requested the Court to show mercy to appellant-accused and to consider the undergone period, as the appellant-accused is in jail since long. But looking to the heinous offence committed by the present appellant-accused, the Court is not inclined to consider the said request. Lastly, he prayed to allow the appeal.
[11] Per contra, Mr.Hardik Soni, learned APP, has read the charge and complaint and argued that after a period of 5 days of the incident, the complaint was filed by the Page 12 of 17 R/CR.A/250/2011 JUDGMENT complainant-mother of the victim, shows it was an afterthought. In reply to argument of Mr.Mansuri, learned advocate, Mr.Soni contended that delay of 5 days in filing the complaint is not the question to create doubt against the contents of the complaint. He further contended that contents of the complaint disclosed by the complainant against the appellant-accused for the alleged offences get substantiated though supportable evidence of son, daughter, brother, maternal uncle and sister in law and one independent witness, friend of the deceased. He particularly read the cross-examination of PW-1- complainant and argued that in the present case, allegation made against the appellant and other co- accused is for the offences punishable under Sections-306, 498 and 114 of IPC and under Sections-3 and 5 of the Dowry Act.
[11.1] Mr.Soni, further argued that family members of the victim, who have disclosed conduct of the present appellant-accused and other co-accused. It is established that the victim committed suicide due to physical and mental torture given by them with the help of other co- accused. Mr.Soni, further read the evidence of witnesses and argued that it is proved and established that demand of dowry was made by the appellant-accused and in-laws. Further, no cross-examination is made to establish and prove defence version before the learned trial Judge and therefore, it was the duty of the defence to make the proper cross-examination of the witnesses regarding the Page 13 of 17 R/CR.A/250/2011 JUDGMENT abetment, provocation and instigation. He further argued that from the perusal of defence version also, when ingredient of IPC and Dowry Act are not proved, then defence could not say that he was wrongly convicted by the learned trial Judge.
[11.2] Mr.Soni, drew attention to the judgment and order of the Apex Court in the case of Ganga Singh V/s. State of Madhya Pradesh, reported in, (2013) 7 SCC 278. He read the relevant para-13 of the judgment and contended that Section-146 of the Indian Evidence provides that witness is cross-examined, he may be asked any question, which tends to test his veracity. In cross-examination, not a single question was asked to witnesses, who are cited as family members of the victim, regarding the harassment, cruelty, provocation and abetment given by the appellant and in-laws to the deceased and in result of the same, she committed suicide. Mr.Soni, further read the evidence of doctor and police and argued that Mr.Mansuri, learned advocate argued that during the inquiry under Section- 174 of the Code of Criminal Procedure, carried out in Accidental Death Case, statements of the witnesses were recorded by PSO and nothing was disclosed by the defence in the said inquiry that in result of harassment and cruelty, the deceased committed suicide. Mr.Soni, argued that inquiry under Section-174 of the Code of Criminal Procedure carried out by the PSO and recorded the statements, cannot be used as substantive evidence. In this regard, respectful reference may be made by him Page 14 of 17 R/CR.A/250/2011 JUDGMENT to the judgment of this Division Bench of this Court in the case of Ramilaben Hasmukhbhai Khristi w/o Hasmukhbhai Ashabhai V/s. State of Gujarat, reported in, 2001 (1) GLR 783, more particularly, para- 47 of the judgment and contended that statements under Section-174 of the Code of Criminal Procedure cannot be considered as substantive evidence and therefore, argument made by Mr.Mansuri, learned advocate, has no force. Mr.Soni, further contended that as per the evidence of the independent witness-PW-12-Nurhat Parvin, who is a friend of the victim, there was mental and physical torture given by the appellant to the deceased and due to such conduct, deceased committed suicide. Mr.Soni, further submitted that this witness is a star witness of the prosecution case and through cross-examination of this witness, defence could not establish any negative conduct of this witness. Mr.Soni, submitted that DW-1, Abbasbhai Patel is also examined by the defence, who has no personal knowledge regarding the relation of the deceased and therefore, the same can be discarded. Mr.Soni, next contended that marriage life of the victim was only 3 years and as per the Provisions of Section-113 of the Indian Evidence Act, presumption is required to be drawn against the present appellant-accused. He further submitted that as per the judgment and order of learned trial Judge, it is established that prosecution has proved its case against the appellant-accused and therefore, he prayed to dismiss the appeal.
Page 15 of 17R/CR.A/250/2011 JUDGMENT [12] I have perused the documentary as well as oral
evidence produced on record. First of all, I have minutely perused the evidence of PW-1 complainant and other family members of the victim. It is required to be considered that Mr.Mansuri, learned advocate has argued that present witnesses of the case of the prosecution are related and interested witnesses and their evidence cannot be considered as acceptable, reliable and trustworthy. Be that as it may. Real truth and conduct of the present appellant-accused can only be disclosed by the victim herself. Witnesses of the present case are family members of the victim and they cannot say properly regarding conduct and behavior of the appellant- accused inside the house. It is only victim herself who can throw light on actual happening in their house. Evidence of one independent witness, friend of the deceased is a sufficient and material to prove ingredient of Sections- 498A and 306 of IPC and Dowry Act. I have minutely perused the evidence of PW-12-Nurhat Parvin, friend of the deceased, who disclosed reality of the allegations made against the present appellant-accused. After perusing genuineness of the evidence of the prosecution case in detail, learned trial Judge has rightly observed that prosecution has proved its case beyond reasonable doubt. As per the observations in the case of Ramilaben Hasmukhbhai Khristi w/o Hasmukhbhai Ashabhai (supra), Statements made under Section-174 of the Code of Page 16 of 17 R/CR.A/250/2011 JUDGMENT Criminal Procedure, cannot be considered as substantive evidence. As per Section-113 of Indian Evidence Act, presumption is required to be drawn against the present appellant-accused. I am of the opinion that learned trial learned trial Judge has rightly convicted the appellant- accused for the alleged offences and submission made by Mr.Mansuri, learned advocate to consider the undergone period of the appellant-accused has no force. Considering the offences and interest of large society, present appeal deserves to be dismissed. In the result, I am in full agreement with the judgment and order of conviction of the learned Trial Court.
[13] In the result, this appeal is dismissed. The impugned judgment and order of conviction and sentence dated 29.12.2010 rendered by the learned 2nd Additional Sessions Judge, Vadodara, in Sessions Case Nos. 174 and 175 of 2008, is hereby confirmed. Bail bond, if any, stands cancelled. R & P to be sent back to the trial Court, forthwith.
(Z.K.SAIYED, J.) siddharth Page 17 of 17