1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT SMT. MUMTAZ VS. STATE OF RAJASTHATN 1. D.B.Cri. Appeal No.177/2004 under section 374 (2) Cr.P.C. against the judgment and order dated 22.1.2004 passed by the Additional Sessions Judge (Fast Track), Nagaur in Sessions Case No. 20/2003 (17/2003). Date of Judgment: 1st September , 2010 PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI Mr.Sunil Mehta , for the appellant. Mr.K.R.Bishnoi , Public Prosecutor. BY THE COURT (PER HON'BLE JOSHI, J.): This is an appeal filed by the accused appellant Mumtaz Khan and Mahendu Khan against the judgment dated 22.01.2004 passed by the learned Additional Sessions Judge (Fast Track), Nagaur in Sessions Case No. 20/2003 (17/2003). In the court of Addl. Chief Judicial Magistrate, Nagaur, a charge sheet was filed against three accused , namely Gani Khan, Mahendu Khan and Mumtaz Khan under section 302 and 498 A of the Indian Penal Code. The accused Mahendu Khan and 2 Mumtaz Khan were declared proclaimed offenders and thus a charge sheet was filed against them in their absence. Therefore, in Sessions case No. 20/2003 (17/2003) the trial was conducted against the accused appellant Gani Khan. Later on, both these accused surrendered and a separate charge sheet was filed in the court of Addl. Chief Judicial Magistrate, Nagaur. Both the cases being session's triable, they were committed to the court of Addl. District & Sessions Judge, Nagaur for trial. In the case of Gani Khan, vide judgment dated 16.03.02, he was found guilty for the commission of offence under section 498A and 302 IPC. During the pendency of appeal, accused Mahendu Khan died on 24.03.2008 and this court vide order dated 18.05.2010 had ordered to abate the appeal in respect of Mahendu Khan. Therefore, now we have not to adjudicate any issue in respect of Mahendu Khan. The nub of the prosecution story is that on 08.10.2000 a FIR was lodged by Mangoo Khan stating that his daughter Maina had been married to Gani Khan in the year 1991. After her marriage her mother-in law, father- in law, sister- in law, brother-in law and husband Gani Khan physically tortured her for dowry. On every visit to his house she used to narrate the incidents of dowry demands . On 08.10.2000 Muse Khan came to his house and informed him that his daughter had been killed by her in-laws. He was further informed that Maina was first 3 murdered and thereafter burnt by her in-laws and husband. On this report, FIR No.512/2000 was registered at Police Station , Nagaur and investigation commenced. During the course of investigation, the statements of the witnesses were recorded by the investigating officer and a site memo was prepared , autopsy was conducted on the body of deceased Maina and after usual investigation a charge sheet was filed in the court of Addl.Chief Judicial Magistrate, Nagaur against accused appellants Mahendu Khan and Mumtaz Khan. After the trial, appellant Mumtaz Khan was found guilty for commission of offence under section 302 and 498A IPC and sentenced as under : 1. For the commission of offence under section 498A IPC, sentenced to three years' S.I. And a fine of Rs.2,000/- and in default of payment of fine, to further undergo six months' S.I. 2. For the commission of offence under section 302 IPC sentenced to life imprisonment and a fine of Rs.5,000/- and in default of payment of fine to further undergo one year's S.I. During the course of trial, prosecution examined as many as 12 witnesses, namely, PW/ 1 Ram Bilas Choudhary , PW/2 Mangu Khan , PW/3 Sultan Khan , PW/4 Kallu , PW/5 Muse Khan 4 , PW/6 Allah Bux , PW/7 Ugma , PW/8 Thakur Prasad , PW/9 Tejpal Singh , PW/10 Chuna Ram, PW/11 Rakesh Kumar and PW/12 P.P.Tak. The accused was asked to explain the incriminating evidence adduced by the prosecution during the course of trial and the accused produced four witnesses in defence , namely, DW/1 Umed Khan , DW/2 Umedmal Surana DW/3 Ramchandra, and DW/4 Babu Khan. The learned trial court, while appreciating the documentary as well as the ocular evidence adduced by the prosecution during the course of the trial, held guilty the accused appellant of the charge levelled against her and the learned trial court held that the circumstantial evidence available against the accused appellant were sufficient to prove the guilt against the accused appellant and relied upon the circumstantial evidence produced by the prosecution beyond doubt. The learned counsel for the accused appellant contended that the judgment of the learned trial court suffers from infirmity and the learned trial court erred in appreciating the circumstantial evidence available against accused appellant and there was no complete chain of each incident against accused and, therefore, argued that the judgment of conviction and order of sentence could not be maintained and the accused appellant deserves to be acquitted of the charges levelled against her. 5 The learned Public Prosecutor vehemently defended the judgment of the learned trial court and argued that the circumstantial evidence as adduced by the prosecution during the course of trial were trustworthy and prosecution had proved each chain of evidence to prove the guilt of the accused appellant and the judgment of the learned trial court did not require any interference. We have considered the rival contentions of learned counsel for both the parties and also scanned and evaluated the evidence available on record. PW/1 Dr.Ram Bilas Choudhary was the Medical Jurist who conducted the autopsy on the body of the deceased Maina on 08.10.2000. The external condition of the body was found as under :- “Stout superficial burns all over the body, body turned black. All four limbs are in semi flexed position. Tongue protruded. Eyes opened pupils dilated. Hair on scalp burnt anteriorly completely and scanty burnt hair present profusely. Burnt pieces of cloth seen at many places of body. A burnt thick cloth and burnt choti (hair) were present over anteriorly. And defuse to neck. Neck skin burnt and turned black . On neck dissection muscles of 6 the neck congested anteriorly and laterally. Pharynx and trachea conjusted. R.M. Present in all four limbs. Note – All burns are post mortem burns.” PW/2 Mangu Khan is the father of deceased Maina. He deposed that Maina was of the age of 22 years and she had been put to death by her in- laws.The dhani of Mahendu Khan was situated in Amarpura, where Maina was put to death . She was married with Gani Khan s/o Mahendu Khan . He further deposed that after the marriage of Maina, her in-laws demanded dowry and for that purpose they used to beat her and they also quarreled with her. Gani Khan , the husband of Maina also used to beat her and he also demanded dowry. The mother in-law of Maina, Mumtaz Khan , sister-in-law Haseena and brother -in- law Usman also used to harass her for dowry. Whenever Maina used to come from her in-laws' house she used to disclose to him about her harassment . Maina had told her mother one year before the alleged incident that when she was sleeping on the roof of her in laws ' house, her father -in-law tried to outrage her modesty and when she told this incident to her mother-in-law she did not take any action and after this incident Maina resided with her parents for one year. After a year when her husband Gani Kahn came from Bombay, then he came to take Maina back. Gani Khan and his two sisters came to his house to take Maina and then he sent Maina to her in-laws house. There again her mother-in-law Mumtaz started to harass her. After a short period of quarrel Mangu Khan brought 7 Maina to his house and kept her with him. After that Gani Khan came along with Heere Khan and Phunse Khan to take Maina to his house and on the guarantee of Heere Khan and Phunse Khan he sent Maina to her in laws' house. A day before the alleged incident the son of Mahendu Khan brought Maina to her in laws house, on the same night she was put to death by Gani Khan, Mahendu Khan , Mumtaz Khan, Haseena and Usman. Muse Khan informed him about his daughter's death . Then he reported the matter to the police through report Ex.P/1. The investigation officer inspected the site and prepared site memo Ex.P/3 and facts found on scene of occurrence as Ex.P/2. The dead body of Maina was lying at the site of the incidence. Ex.P/5 Panchnama of dead body of deceased Maina was prepared and body was handed over to him through Ex.P/6. Burnt clothes of deceased Maina were taken in possession through Ex.P/8. Jerican of kerosene was taken in possession through memo Ex.P/10 and gold articles were taken in possession through Ec.P/11. At the time of taking these goods in possession Muse Khan, Shere Khan and Sultan Khan were also present. PW/3, Sultan Khan and PW/4 Kallu Khan also corroborated the evidence of PW/2 Mangu Khan . PW/5 Muse Khan did not corroborate the prosecution's evidence and therefore, he was declared hostile. PW/6, Allahbux deposed that Maina was his cousin sister, she was married to Gani Khan. Maina used to tell him that her 8 in laws were harassing her for dowry. Later Maina was put to death by burning her. PW/7 Ugma deposed about the harassment of Maina by her in laws and her husband and she further deposed that Maina used to complain about her in laws regularly when ever she used to come to her parental house and she also stated about the incident of trying to outrage her modesty by her father in law. PW/8 Thakur Prasad deposed that he snapped the photos Ex.P/19 and Ex.P/20 at the request of police in Amarpura. Ex.P/21 the envelope of the photos was also of his studio and their negatives were Ex.P/22 and Ex.P/23. PW/9 Tejpal Singh is the investigating officer who conducted the investigation of this case on 10.10.2000 and he recorded the statement of some of the witnesses and after conclusion of investigation he filed the charge sheet against the accused persons. PW/10 Chuna Ram deposed that on 20.10.2000 he was posted as Circle Officer of Nagaur Police Circle. During the course of investigation he recorded the statement of some of the witnesses he further handed over the investigation to some other officer. PW/11 Rakesh ,is also an the investigating officer, who was 9 posted as Sub-Inspector of Police Station Nagaur on 08.10.2000 and on that day on the information Ex.P/1 of Mangu Khan, he registered the criminal case No.512/2000. PW/12 P.P.Tak deposed that in the month of December 2000 he was posted as Addl. Superintendent of Police, CID (CB), Ajmer Range. He conducted the investigation in criminal case No.512/2000 of Police Station Nagaur and during the course of investigation he verified the statement of the witnesses recorded by earlier investigation officer and he also called for the explanation regarding Post Mortem Report through letter Ex.P/17 and he received Ex.P/18 communication from the Medical Jurist. As per statement of PW/1 Dr.Ram Bilas Choudhary, the autopsy was conducted by medical board and in the opinion of the Board cause of death of Maina was Asphyxia due to throttling and the death had been caused 12 hours earlier to the post mortem. This witness further deposed that post-mortem report Ex.P/16 was prepared by him and further deposed about the signature of Dr. Anandilal Agrawal and Dr.Jamela. As per opinion of Medical Board, asphyxia caused due to throttling, was sufficient to cause death of Maina. On 29.12.2000 the Addl. Superintendent of Police CID (CB) made further queries about the death of deceased Maina. Therefore, he replied the queries on 30.12.2000 by communication Ex.P/18. This report was also signed by 10 Dr.Anandi Lal Agrawal. The main contention of the learned counsel for the accused appellant was that there was major contradictions in the statement of the witnesses, recorded during the trial and the learned trial Judge, did not consider all those major contradictions and placed reliance upon the circumstantial evidence as adduced by the prosecution. The learned counsel further argued that in this case, a complete chain of the circumstantial evidence was not produced by the prosecution, so as to prove the charge levelled against the accused appellant. As per learned counsel for the accused appellant, there was an evidence of this fact that deceased Maina was sleeping on the fateful day of the incident at her in laws house ,but there were other circumstances also which induced the deceased to commit suicide. As per the argument of the learned counsel for the accused appellant, there was no issue to Smt.Maina from accused appellant Gani Khan, therefore, it was one of the cause of frustration and due to this frustration, deceased Maina committed suicide and this death could not be termed as homicidal. Learned Public Prosecutor, vehemently contended and defended the judgment of the learned trial court and further argued that the prosecution adduced the complete chain of circumstances, so as to prove the guilt of the accused appellant beyond all reasonable doubt, and the learned trial court 11 appreciated all the circumstantial evidence in right perspective . First, we come to the point that whether the death of the deceased Maina was homicidal , suicidal or accidental ?. For this purpose, we have perused the statement of PW/1 Dr. Ram Bilas Choudhary, who was Medical Jurist, at the relevant time and who conducted the autopsy on the body of deceased Maina on 08.10.2000. As per his statement , all burns were found to be post mortem burns and if further we come to the site memo, Ex.P/3, which was prepared by the Investigating Officer on 08.10.2000 and it was clearly mentioned in this Memo Ex.P/3 that near the dead body, there were no signs of any movement of the dead body at the place of the occurrence, where the dead body was lying . This fact very well prove the fact that had there been burns on the body, before throttling, there would have been signs of movement of the body because it was most natural for a burning person to move himself or herself, to save from burns and this one observation regarding the place of incident, very well establish this fact that before causing burns to the body of deceased Maina, she was caused to death by throttling. Further, Ex.P/3, contained this fact that all the ornaments which were worn by the deceased were found to be tied intact in the 'odhni' of the deceased and were lying near the dead body. There was also a stove, and kerosene was spread at the place of occurrence and there was also matchbox lying near the place of occurrence. These all facts were sufficient to prove this fact 12 that the death of the deceased Maina was homicidal and not suicidal or accidental. So far as offence under Section 498-A IPC is concerned, the father of the deceased PW/2 Mangu Khan, the mother of the deceased PW/7 Ugma and maternal uncle of the deceased PW/3 Sultan Khan deposed that there was regular harassment of deceased Maina by her in-laws for demand of dowry. However, a careful perusal of the statements of these witnesses shows that there were no specific allegations mentioned in the First Information Report regarding the date and time when the dowry was demanded from the deceased and particularly there was evidence on record that the accused appellant Gani Khan came from Mumbai after a long stay of one year, then the prosecution story regarding the regular harassment and demand of dowry by the husband and other persons of in-laws' family did not inspire confidence particularly when there were no specific instances adduced in the evidence regarding the harassment or any torture made by any of the family members of the accused appellant or particularly by the accused appellants Gani Khan and Mumtaz Khan. However, prosecution has to prove specific instances to prove the crime of cruelty. The evidence in this regard is devoid of details and this is unbelievable also that demand for dowry will be made even after passing of ten years after solemnisation of marriage. Therefore, the charge against Gani Khan regarding commission of offence under Section 498-A cannot be maintained and it requires interference in appeal as the learned trial Judge had erred in convicting the accused appellant Gani 13 Khan for finding him guilty for commission of offence under Section 498-A. Now we come to the charge under Section 302 IPC. The main contention of the learned counsel for the accused appellant was that there were strong suspicions legitimately arising that in all probabilities the accused was guilty of commission of offence, but the suspicion howsoever graver could not be a substitute for proof and in this case the contention of the learned counsel for the accused appellant was that the prosecution story could not travel beyond the suspicion and where there was only a suspicion regarding the commission of offence and when there was no specific motive proved by the prosecution, then it was very unsafe to convict the accused and further the learned counsel for the accused appellant contended that in this particular case the prosecution story was based on a grave suspicion out of the fact that the body of the deceased was found in burnt condition in her in-laws' house and at the relevant time her husband, father-in-law and mother-in-law were there, therefore, the prosecution developed the story of murder being done by the above 3 persons and even before the lodging of the First Information Report how could the lodger of the FIR, who was father of the deceased, knew that after throttling the body was burnt by the accused appellants and in these circumstances the evidence of the prosecution could not be termed as of strong worth and no reliance could be placed for conviction of the accused appellants. 14 The learned counsel for the accused appellants relied upon the following decisions :- 2. Vikramjit Singh @ Vicky Vs. State of Punjab reported in (2007) 1 SCC (Cri) 732 3. Inderjit Singh & Anr. Vs. State of Punjab reported in AIR 1991 Supreme Court 1674 4. Charan Singh & Anr. Vs. State of Rajasthan reported in 1989 Cr.L.R. (Raj.) 547 5. Teja Ram & Ors. Vs. State of Rajasthan reported in 1991 Cr.L.R. (Raj.) 592 6. Ashok Dhariwal Vs. State of Rajasthan reported in 1991 Cr.L.R. (Raj.) 671 7. State of Rajasthan & Ors. Vs. Vijay Singh & Ors. reported in 1996 Cr.L.R. (Raj.) 70. We have perused the citations as referred by the learned counsel for the accused appellant. Suspicion, howsoever grave, cannot take place of truth. The prosecution evidence leads to the conclusion that Mumtaz was also present in the Dhani at the time of occurrence and there is no evidence to prove that she at all made any effort to save her daughter-in-law. Nonetheless, the possibilities cannot be ruled out that Gani Khan committed murder of Maina and when he was destroying evidence , Mumtaz tacitly might have observed that there was no way out for Gani Khan to save himself. This does not lead to implicacy or active 15 participation by Mumtaz. Obviously, Mumtaz must be sleeping at a separate place from closed door room of her married son, i.e. Gani Khan, who was sleeping with his wife. But for slender titbits, there is no incriminating evidence against Mumtaz which may establish her participation in crime. The statement made by prosecution witnesses that Mumtaz Khan killed Maina, is simply an inference drawn by them in as much as none of them really witnessed the incident. In the result, all the circumstances available against the accused demands the extension of doubt to the accused appellant for the commission of offence under section 302 IPC. Resultantly, the appeal filed by accused appellant Smt. Mumtaz, w/o Mahendu Khan, is allowed and her conviction under section 302 and 498A IPC and the sentence passed by the learned trial court vide order dated 22.1.2004, in Sessions Case No. 20/2003 (17/2003), for the commission of above offences, is set aside and she is acquitted of the charges levelled against her. Accused appellant Smt.Mumtaz is on bail, she need not surrender. Her bail bonds stand discharged. (KAILASH CHANDRA JOSHI),J. (PRAKASH TATIA), J. l.george