RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1480 OF 2001 (OLD NO.1838/1995) Bashir Ahmad .……… Appellant Versus The State ……… Respondent Dated: August 25, 2009 Mr. D.C.S. Rawat, learned amicus curiae for the appellant Mr. M.A. Khan, learned brief holder for the State HON. DHARAM VEER, J. This appeal, preferred by the appellant u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 22.09.1995 passed by Special Judge/Additiona Sessions Judge, Nainital in S.T. No.124/1989, State Vs. Bashir Ahmad, whereby the learned Special Judge/Addl. Sessions Judge convicted the accused/appellant u/s 304-B of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to undergo R.I. for a period of ten years. 2. I have heard Sri D.C.S. Rawat, learned amicus curiae for the appellant as well as Sri M.A. Khan, learned brief holder for the State. Perused the entire material available on record. 3. In brief, the prosecution case is that PW2 Shamshad Hussain (father of the deceased) lodged the FIR at P.S. Ramnagar stating therein that the marriage of his daughter Mehrunisha alias Rani was solemnized with the accused/appellant Bashir Ahmad on 10.03.1987. Accused/appellant Bashir used to commit Marpeet with his daughter and for this reason, he stayed his daughter in his 2 house. Thereafter many times some people from Ramnagar came to him to resolve the matter but did not succeed. Then his son-in-law, the appellant herein, along with his father, Kaiyyum Sahab, Faruk Sahab, Member Kaiyyum Sahab and Fajul Hussain Sahab came to his house. On the assurance of aforesaid people that his daughter shall be kept in a separate house, he send his daughter on 12.4.1988. It was further stated that on 22.4.1988 at 5 AM, when his daughter was sleeping in her house then the accused/appellant burnt her by pouring kerosene oil on her. It was further alleged that before this incident, the accused/appellant had threatened to kill his daughter. The accused/appellant used to commit Marpit with his daughter for bringing insufficient dowry. He used to demand Moped motor cycle which he had given him. After that the accused/appellant demanded money for business which he could not meet. With the same averments, he lodged the First Information Report at P.S. Ramnagar, District Nainital on 22.4.1988 at 09:45 AM. That FIR is Ext.Ka-4. On the basis of this FIR, Chik FIR (Ext.Ka-7) was prepared by Head Mohirror Jagdish Singh. Necessary entries were also made in the G.D., carbon copy of which is Ext.Ka-8. The case was registered against the accused/appellant u/s 498A/323/307 IPC and 3/4 of the Dowry Prohibition Act, 1961. Initially, the investigation of this case was entrusted to PW7 S.I. Kishan Lal but later on it was transferred to C.O. Harish Chand Phuloria. On the same day at 07:45 AM, PW1 Dr. Yogesh Chand Sharma, Medical Officer medically examined the victim and prepared her medical report i.e. Ext.Ka-2. He also sent information in the Police Station, Ramnagar vide memo Ext.Ka-1. During the course of investigation, the I.O. recorded the statements of the victim Smt. Mehrunisha u/s 161 Cr.P.C., which is Ext.Ka-9. He also prepared the site-plan of the place of incident, which is Ext.Ka-10. He also prepared the 3 FARD Ext.Ka-11 of taking into possession burnt pieces of salwar kurta, dupatta, pieces of bangles, a kerosene lamp and a match box. FARD Ext.Ka-12 and FARD Ext.Ka-13 were also prepared by the I.O. Sub Inspector Dinesh Chandra Bauthiyal send a letter to Peshkar/Tehsildar Ramnagar for recording the statements of the victim u/s 164 Cr.P.C. That letter is Ext.Ka-14. A letter was also sent to Superintendent, Joint Hospital, Ramnagar for recording the dying declaration of Smt. Mehrunisha, which is Ext.Ka- 15. The Medical Officer recorded the dying declaration of the victim, which is Ext.Ka-3. In the night of 26.4.1988, victim Mehrunisha succumbed to her burn injuries. Thereafter on 27.4.1988 inquest report of the dead body was prepared by the I.O., which is Ext.Ka-5. Along with the inquest report, other papers viz. sketch of the dead body (Ext.Ka-16), Police Form No.13 (Ext.Ka-17) and Police Form No.33 (Ext.Ka-18) were also prepared. After that the dead body was sent for post-mortem examination, which was conducted on 27.4.1988 at 1:30 PM. The post-mortem report is Ext.Ka-6. After the death of Smt. Mehru Nisha, the case was amended into 304-B IPC. Entries regarding this was also made in the G.D., carbon copy of which is Ext.Ka-20. On completion of the investigation, charge sheet was submitted against the accused/appellant, which is Ext.Ka-21. 4. Learned Additional Chief Judicial Magistrate, Kashipur committed the case to the court of sessions on 3.4.1989, after giving necessary copies to the accused/appellant as provided u/s 207 Cr.P.C. 5. On 18.8.1989, learned Sessions Judge, Nainital framed the charge of offence punishable u/s 304-B IPC against the accused/appellant. The charge was read over and explained to the accused/appellant who pleaded not guilty and claimed to be tried. 4 6. In order to prove its case, the prosecution examined PW1 Dr. Yogesh Chand, Medical Officer, who medically examined Smt. Mehrunisha (deceased) and also recorded her dying declaration; PW2 Shamshad Hussain, complainant and father of the deceased; PW3 Abdul Kaiyyum, witness of the Panchayat; PW4 Smt. Katherine, eyewitness; PW5 Mohd. Faruq, witness of the Panchayat; PW6 Km. Gulrej, eyewitness and PW7 S.I. Kishan Lal, Investigating Officer of the case. 7. Thereafter the statements of the accused/appellant were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to him in question form, who denied the allegations made against him. However, he did not produce any oral or documentary evidence in his defence. 8. After appreciating the entire evidence available on record and hearing learned counsel for the parties, learned Special Judge/Addl. Sessions Judge, Nainital vide his judgment and order dated 22.09.1995 convicted and sentenced the accused/appellant as stated above. Against the said judgment and order, the accused/appellant preferred the present appeal. 9. Before any further discussion, it would be pertinent to mention that the victim Smt. Mehru Nisha got medically examined by Dr. Yogesh Chand Sharma on 22.4.1988 at 07:45 AM, who prepared her medical report Ext.Ka-2, which is reproduced as under:- “Patient general condition low Pulse less B.P. less Dehydration CA + 1 Temp Sub Normal 5 CNS, CVS, Rep System-NAD There are burns all over the body except face Urine output nil Opinion:- Patient admitted, under observation, Police informed”. 10. To prove the aforesaid medical report, the prosecution examined PW1 Dr. Yogesh Chand Sharma who stated that on 22.4.1988 he was posted as Medical Officer at Joint Hospital, Ramnagar. On that day in the morning, Smt. Mehru Nisha was admitted in the hospital in burnt condition. He send this information at Police Station, Ramnagar vide memo Ext.Ka-1. At 07:45 AM he medically examined the victim and prepared the medical report Ext.Ka-2. He further stated that at the time of making dying declaration deceased Mehru Nisha was fully conscious and whatever she stated was recorded by him. When this dying declaration was recorded except Dr. D.C. Dhyani, nobody was present there. The dying declaration was read over to the deceased Smt. Mehrunisha who had fixed her thumb impression on it. He and Dr. Dhyani signed on the dying declaration (Ext.Ka-3). 11. It would also be pertinent to mention that the post-mortem of the deceased was conducted on 27.4.1988 at 1:30 PM. The post-mortem report is Ext.Ka-6 (genuineness of this document was admitted by the defence counsel), which is reproduced as under:- (i) Dry burn present superficial and deep at certain areas on front of chest, breast, abdomen, genital, upper part of thighs and legs. (ii) Dry burn present on whole of back both arms and legs posterior aspect. (iii) All these burns shows process of healing and deep in between certain area. 6 Remark:- Cause of death due to shock and hemorrhage from dry heat burn 96%. 12. Further to prove its case, the prosecution examined PW2 Shamshad Hussain who stated that the marriage of his daughter was solemnized with the accused/appellant on 10.3.1987 as per Muslims customs. Second time after the marriage when she went to the house of the accused/appellant then the accused/appellant beaten her and threatened to kill her. He also made a demand of Rs.20,000/-. This fact was told to him by his daughter when she came to his house. Same year his daughter had returned back to his house. She used to say that she will not stay in her husband’s house because the accused/appellant had threatened to kill her. The accused/appellant and his family members came to take his daughter several times but she refused to go. Thereafter some respected persons of Ramnagar like Maulana Kaiyyum and Faruq along with Kaiyyum Sahab of Haldwani came to his house and asked why he is not sending his daughter. He told them that the accused/appellant has beaten his daughter and has given threat to her life. He has also demanded cash money. On this a compromise took place and on their responsibility he sent his daughter to Ramnagar. His daughter and the accused/appellant started living separately in the house of maternal uncle (MAMA) of the accused. He further stated that his daughter had gone there on 12.4.1988 and on 22.4.1988 he got the information that his daughter has been burnt. On this information, he and Kaiyyum Sahab of Haldwani reached Ramnagar. At that time his daughter was admitted in the hospital. He enquired from his daughter who told him that after eating Sahri of Ramjan they had gone to sleep then the accused/appellant burnt her after pouring kerosene oil on her. Thereafter, on the same day he lodged the report of 7 the said incident in the police station, which is Ext.Ka-4. He further stated that the accused/appellant had demanded Moped Motorcycle which he had given him in the marriage. He further stated that his daughter was sent to Nainital Hospital from Ramnagar for treatment. From Nainital they were taking her to Delhi for treatment then on the way she died. After that they brought her dead body to Ramnagar. Next day inquest report (Ext.Ka-5) of the dead body was prepared and he also signed on the same. This witness was cross-examined at length by the defence counsel but nothing has come out from his evidence, which may create any doubt in his evidence. The evidence of this witness is reliable, believable and inspires confidence. 13. PW3 Abdul Kaiyyum stated that after the marriage Mehru Nisha went to her in-laws house two or three times but she came back to her parental house. In this matter, many times panchayat was held. In the last Panchayat he himself was present and it was decided that she should be sent to her in-laws house. In this Panchayat Maulana Kaiyyum and Faruq of Ramnagar were present. He further stated that she was not ready to go at her in- laws house. After 10-12 days of the panchayat, he got the information of the death of Mehru Nisha. On this information, he along with Shamshad went to Ramnagar. This witness was cross-examined at length by the defence counsel but nothing has come out from his evidence, which may create any doubt in his evidence. The evidence of this witness is reliable, believable and inspires confidence. 14. PW4 Katherine stated that Mehru Nisha was married to the accused/appellant about one year before the said incident. She further stated that about ten days before the said incident, the accused/appellant Bashir and Mehru Nisha had come to stay in their house and her brother-in- 8 law (DEVAR) had given them his room. On 22.4.1988, it was fifth day of Ramjan. Before 4 AM they had taken meals together. After that Mehru Nisha and appellant Bashir had gone to their room and she had also gone to sleep. At about 5:00 AM she heard the cries of her daughter and she was awakened. She saw that one burning body was coming towards her. She recognized that she was Mehru Nisha. She covered her with bed sheet and thereafter put mattress on her body to set out the fire. Meanwhile the accused/appellant Bashir and her brother-in-law came there. Mehru Nisha was not in a condition to speak because of excessive burning. Firstly they called private doctor but then on the advice of the doctor they took her to government hospital. She further stated that the information to Mehru Nisha’s father was given by them. This witness was cross-examined at length by the defence counsel but nothing has come out from his evidence, which may create any doubt in his evidence. The evidence of this witness is reliable, believable and inspires confidence. 15. PW5 Mohd. Faruq has corroborated the statements of PW3 Abdul Kaiyyum. 16. PW6 Km. Gulrej has corroborated the statements of her mother PW4 Smt. Katherine. 17. PW7 S.I. Kishan Lal is the Investigating Officer of the case who stated that on 22.4.1988 the investigation of this case was entrusted to him. During the course of investigation, he recorded the statements of Smt. Mehru Nisha in the hospital, which is Ext.Ka-9. Thereafter he went to the place of occurrence and prepared the site-plan (Ext.Ka-10). He also recovered a match box (Ext.1), kerosene lamp (Ext.2), burnt pieces of salwar-kurta (Ext.3), dupatta (Ext.4) and pieces of bangles (Ext.5) from the spot and prepared FARD (Ext.Ka-11). He also prepared FARD 9 (Ext.Ka-12) of taking into possession a white bed sheet on which burnt pieces were stuck and FARD (Ext.Ka-13) of taking into possession the saree of Katherine. He has proved the bed sheet (Ext.6) and saree (Ext.7). He further stated that on the memo Ext.Ka-1 S.I. D.C. Bhauthiyal had gone to Civil Hospital, Ramnagar and for recording the dying declaration of Smt. Mehru Nisha, report was sent to Peshkar/Tehsildar, Ramnagar and Superintendent, Civil Hospital, Ramnagar. That reports are Ext.Ka-14 and Ka-15. He has also proved the inquest report (Ext.Ka-5), sketch of the dead body (Ext.Ka-16), Challan Lash (Ext.Ka-17), Police Form No.33 (Ext.Ka-18) and letter to C.M.O. (Ext.Ka-19). He further stated that he sent the dead body of the deceased for post-mortem examination through Constables Rajeev Kumar and Trilok Chand Tyagi. He further stated that the death information of Smt. Mehru Nisha was given in the police station by the father of the deceased after which the case was amended into 304-B IPC. Entry regarding this was made in the G.D., carbon copy of which is Ext.Ka-20. On 12.5.1988, investigation of this case was taken by Circle Officer Harish Chandra Philoria and on completion of the investigation, charge sheet was submitted against the accused/appellant. That charge sheet is Ext.Ka-21. 18. Thereafter the statements of the accused/appellant were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to him in question form, who denied the allegations made against him. However, he did not produce any oral or documentary evidence in his defence. 19. Mr. D.C.S. Rawat, learned amicus curiae on behalf of the accused/appellant submitted that the prosecution has not proved the case u/s 304-B against the 10 accused/appellant. I do not find force in the argument advanced by learned amicus curiae due to following reasons:- (i) As per the evidence of PW2 Shamshad the deceased was married to the accused/appellant on 10.3.1987. Second time after the marriage when she went to the house of the accused/appellant then the accused/appellant beaten her and threatened to kill her. He also made a demand of Rs.20,000/-. Same year his daughter had returned back to his house and she used to say that she will not stay in her husband’s house because he (accused/appellant) had threatened to kill her. The accused/appellant and his family members came to take his daughter several times but she refused to go. Thereafter some respected persons of Ramnagar like Maulana Kaiyyum and Faruq along with Kaiyyum Sahab of Haldwani came to his house and asked why he is not sending his daughter. He told them that the accused/appellant has beaten his daughter and has given threat to her life. He has also demanded cash money. On this a compromise took place and on their responsibility he sent his daughter to Ramnagar. His daughter and the accused/appellant started living separately in the house of maternal uncle (MAMA) of the accused. It was further stated that Mehru Nisha (deceased) had gone there on 12.4.1988 and on 22.4.1988 he got the information that she has been burnt. On this information, he and Kaiyyum Sahab of Haldwani reached Ramnagar. At that time his daughter was admitted in the hospital. He enquired from his daughter who told him that after eating Sahri of Ramjan she and the appellant/accused had gone to sleep then the accused/appellant burnt her after pouring 11 kerosene oil on her. It was further stated that the accused/appellant had demanded Moped Motorcycle which he had given him in the marriage. (ii) PW3 Abdul Kaiyyum and PW5 Mohd. Faruq were the witnesses of Panchayat which was held some days before the death of Mehru Nisha. Both of them have stated that the deceased was not ready to go to her husband’s house because he used to beat her for the demand of dowry and he had also threatened to kill her but on their persuasion she went with the appellant/accused. (iii) PW4 Katherine has also stated in her statement that before ten days’ of the said incident, the accused/appellant Bashir and Mehru Nisha had come to stay in their house and her brother-in-law (DEVAR) had given them his room. On 22.4.1988, it was fifth day of Ramjan. Before 4 AM they had taken meals together. After that Mehru Nisha and appellant Bashir had gone to their room and she had also gone to sleep. At about 5:00 AM she heard the cries of her daughter and she was awakened. She saw that one burning body was coming towards her. She recognized that she was Mehru Nisha. She covered her with bed sheet and thereafter put mattress on her body to set out the fire. Meanwhile the accused/appellant Bashir and her brother-in-law came there. Mehru Nisha was not in a condition to speak because of excessive burning. Firstly they called private doctor but then on the advice of the doctor they took her to government hospital. This fact is also corroborated from the statement of Km. Gulrej who was also present at the time of incident. (iv) On the same day i.e. on 22.4.1988 the Investigating Officer recorded the statements of Smt. Mehru Nisha u/s 161 Cr.P.C. As per her statement, she was 12 married to the accused/appellant Bashir Ahmad on 10.3.1987. After the marriage, second time when she went to her in-law’s house then her husband beaten her with belt and asked why she has not brought Cooler. Thereafter four or five times she again came to her in-laws house but every time the accused/appellant demanded cooler and money. When she showed her inability to bring the same then the accused/appellant committed Marpit with her. It was further stated by her that when the conditions became intolerable then she came to her parental house at Haldwani. Thereafter the accused/appellant threatened to kill her many times for the demand of aforesaid things. After some time the accused/appellant along with some other persons came to her parental house and a compromise took place with the condition that he will not beat her in future and will live with her in separate house. On this, she came Ramnagar with her husband on 12.4.1988 and started living with the accused/appellant in the house of his maternal uncle. On 22.4.1988 at 4:00 AM both of them took meals and after that they went to sleep. At 5:00 AM she felt that somebody is pouring water on her but she did not paid attention towards it. After sometime her clothes caught fire. She went outside the room and raised alarm. Firdaus @ Katherine and some other people were sleeping in the courtyard. All of them tried to save her. It was further stated by her that her husband had not tried to set out the fire and he had lit fire on her by pouring kerosene oil on her. The evidence of the deceased gets corroborated from the medical evidence of Dr. Yogesh Chand (PW1) as well as from the medical report (Ext.Ka-2) and the post-mortem report (Ext.Ka-6). 13 20. Before further discussion, it is necessary to reproduce Section 304-B of IPC, which reads as under: - [304B. Dowry Death – (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death. Explanation – For the purpose of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extended to imprisonment for life.] Section 2 of the Dowry Prohibition Act, 1961 is also relevant to mention here which provides definition of Dowry, which is reproduced as under: - 2. Definition of ‘dowry’- In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly. (a) by one party to a marriage to the other party to the marriage; or (b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person. At or before [or any time after the marriage] [in connection with the marriage of the said parties, but does not include] dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies. Explanation II- The expression “valuable security” has the same meaning as in section 30 of the Indian Penal Code (45 of 1860). Section 113-B of Indian Evidence Act, 1872 is also relevant to mention here which also reads as under: - [113-B. Presumption as to dowry death- the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person 14 to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation – For the purposes of this section “dowry death”, shall have the same meaning as in section 304- B of the Indian Penal Code (45 of 1860).] ‘Cruelty’ has been defined in Section 498-A of IPC, which is also reproduced as under: - “498-A. Husband or relative of husband of a woman subjecting her to cruelty – Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.” Explanation-For the purpose of this section, “cruelty” means- (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. 21. To prove the evidence u/s 304-B, it is essential to prove the following essentials (1) Death