IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No. 5 of 1997. Decided on: 19.5.2010. ___________________________________________________________ State of H.P. … Appellant. Versus Habib Ulla and others. … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the appellant : Mr. Anil Jaswal, Dy. Advocate General. For the respondents : Mr. Ashwani Kumar Sharma, Advocate. ___________________________________________________________ R.B. Misra, J. (Oral). The present criminal appeal has arisen after leave to appeal has been granted, under Section 378 (3) Cr.P.C., in reference to the impugned judgment, dated 30.3.1995, passed by the Sessions Judge, Mandi, HP in Sessions Trial No. 32 of 1993, acquitting the respondents-accused for the alleged offences, under Sections 306 and 498-A IPC. 2. In order to adjudicate and to deal with the criminal appeal, it is necessary to give the factual background of the prosecution case that Smt. Hazra Bano daughter of PW Hamid was married to PW Mazid Ali 12 or 13 years before. She used to reside with the accused and other family members in village Dugrain whereas Mazid Ali was working in Saudi Arabia. Smt. Hazra Bano, however, was being treated with cruelty by the accused which led her to consume a poisonous substance called aluminium 1 Whether reporters of the local papers may be allowed to see the judgment? 2 phosphide on the night intervening 8th and 9th July, 1992. She was removed to the hospital at Sundernagar for treatment but she died. The matter was reported to the police by PW Hamid father of said Hazra Bano in the form of a statement under Section 154 Cr.P.C. Ext.PA. During the course of investigation, the police got the post mortem of the dead body of Smt. Hazra Bano conducted and the post mortem report Ext. PE was accordingly prepared by Jaya Vaidya and Usha Prashar, Medical Officers at Sundernagar. The viscera was preserved and the police also collected the material which was vomited by Smt. Hazra Bano after consuming the poisonous substance and the viscera and such vomited material were got chemically analysed in the Forensic Science Laboratory, Shimla and on such examination contents of aluminium phosphide were found in the viscera. After perusal of this report and on the basis of the aspects observed by the aforesaid two Medical Officers at the time of conducting the post mortem of the dead body of Hazra Bano, they opined that the cause of her death was aluminium phosphide poisoning. During the course of investigation PW Hamid produced a letter Ext. PB purporting to have been written by PW Mazid Ali to Smt. Hazra Bano suggesting that Smt. Hazra Bano had been complaining about the maltreatment met out to her by the accused and other family members of Mazid Ali. Further, on search of the residential premises of accused, letter Ext. PH along an envelope was recovered by the Investigating Officer to prove the allegations of cruelty. On being satisfied that Smt. Hazra Bano was being treated with cruelty by the accused, the police submitted the charge sheet against them. 3 3. To prove the charge against the accused, prosecution examined PW-1 Hamid father of the deceased, PW-2 Atta Mohammad and PW-3 Ramzan from whom Hazra Bano had borrowed a sum of money, PW-4 Fazal Din a witness of the inquest report, PW-5 Rafiq Mohammad a witness to the recovery of alleged letter Ext.PB, PW-6 Mehboob Akhtar, who had handed over the letter Ext. PB to PW Hamid father of the deceased, PW-7 Nazir Hussain and PW-8 Baldev Ram eye witnesses of the cruelty met out by the accused to Smt. Hazra Bano, PW-9 Ajgar Ali allegedly a witness of the recovery of a letter and an envelope, PW-10 Irshad Ali who used to read out the letters of Mazid Ali to the deceased, PW-11 Mazid Ali husband of the deceased, PW-12 Jaya Vaidya one of the Medical Officers who conducted the post mortem of the dead body of Smt. Hazra Bano, PW-13 Gurdev Ram, PW-14 Jiwa Nand HC, PW-15 Karam Singh HC, all formal police official witnesses and PW-16 Gurbachan Singh, the Investigating Officer in the case. 4. In order to prove the case, the prosecution examined as many as above 16 witnesses, whereas, the alleged accused- respondents in their statements under Section 131 Cr.P.C. have denied the allegations and the case of the prosecution. 5. We have gone through the contents of prosecution witnesses and material on record and the medical report/post mortem report. We notice that there was no injury mark noticed in the post mortem report on the body of deceased Smt. Hazra Bano. PW-1 Hamid has stated that 5-6 years before Majid Ali, the husband of Smt. Hazra Bano, had gone to his house and expressed his willingness that he will leave his wife there because 4 she was being treated with cruelty by his family members. PW-1 Hamid has further stated that after 1½ years, Smt. Hazra Bano came to his house and made a complaint that she was being treated with cruelty by her family members. As per testimony of PW-1 Hamid, these two instances are revealing that Majid Ali, the husband of Hazra Bano wanted to leave his wife in the house of Hamid and told that she was being treated with cruelty. However, through testimony of PW-1 nothing specific could be derived that allegations of torturing or cruelty against anybody, particularly, no allegations of cruelty or torturing has expressly been made against Majid Ali. It could also be noticed that when Smt. Hazra Bano had made such complaint to PW-1 Hamid, that is, her father, at the relevant time, she had been staying at her parental house. From there, according to the prosecution, Sultan Bibi alleged accused brought Hazra Bano to her matrimonial house. From the statement of PW-1 Hamid, it could only be inferred that because of ‘BADSALUKI and TANGI’ caused to Smt. Hazra Bano in the house of her father-in-law and mother-in-law and other members of the family, Smt. Hazra Bano has died. However, it is worth noticing that no specific allegations were ever made about torturing or maltreating by the father-in-law or mother-in-law. 6. PW-7 and PW-8 are said to be alleged eye witnesses of the occurrence of torturing and beating by the alleged accused being given to Hazra Bano (deceased). However, no instance was pointed out in the testimony of PW-7 Nazir Hussain about specific beating to the deceased. In the post mortem examination done by PW-12 Jaya Vaidya, Medical Officer, no injury was noticed on the body of the deceased. 5 7. PW-8 Baldev Ram, another alleged eye witness, who is said to have observed the incident of torturing, heard Smt. Hazra Bano was crying ‘BACHAO BACHAO MEKE KO DAWAAYEE PILA DEE’. 8. Taking into consideration the two testimonies of PW-7 and PW-8 together, it appears that apparent contradiction is being revealed and PW-8 Baldev Ram has never said that Smt. Hazra Bano was being tortured and beaten by the alleged accused. 9. It could be noticed that PW-7 and PW-8 were present in the Court on 15.11.1994 and 16.11.1994 and were watching the testimony of each other. PW-8 Baldev Ram in his testimony, however, neither has stated that he heard Hazra Bano crying nor reported about any quarrel having taken place in the family of the father-in-law of deceased. Apparently, it could be noticed that PW-7 and PW-8 are interested witnesses who are willing to implicate the alleged accused, as such, testimony of PW-7 and PW-8 cannot be said to be reliable. 10. PW-5 Fafik Mohammad has said that letter Ext. PB was handed over to the police by PW-1 Hamid, which was taken in possession, vide memo Ext. PC. PW-6 Mehboob Akhtar has stated that letter Ext. PB was brought to him for being read out by Hazra Bano deceased. 11. PW-11 Majid Ali, who was said to have stated to PW- 10 Irshad Hussain to read out the letter Ext. PB to Hazra Bano, who was said to be illiterate. However, PW-10 Irshad Hussain appears to have read the letter of Majid Ali to his wife Hazra Bano. However, nothing could be derived from the said letter that it was in the handwriting of Majid Ali. Letter Ext. PB was never put by the 6 prosecution having been written by Majid Ali to Hazra Bano. It does not prove that the accused had been treating the deceased with cruelty. It cannot be a material of instigation or abetment of suicide by Hazra Bano. During search in the house of accused, it appears Ext. PH was found, which was said to be a letter of Majid Ali. It could not be said that who is the author of said letter Ext. PH and the said letter cannot be said to be in the handwriting of Majid Ali and Majid Ali has denied the letter to be in his own handwriting. 12. PW-7 Nazir Hussain has stated that such letter does not appear to be in the handwriting of Majid Ali. For the sake of evidence, if the said letter Ext. PH was received from Majid Ali, even then the contents of said letter should have impression of Majid Ali and not of the deceased Hazra Bano. Such letter cannot be treated as a material or ingredient of abetment for suicide and it lacks having subjected to cruelty or maltreatment. More interestingly, it could be noted that letter of Majid Ali said to be received from Saudi Arabia was not containing any stamp or any air transport mark. In these circumstances, letters Ext. PB and Ext. PH cannot be said to be inspiring confidence in favour of the prosecution to prove that the contents of such letter was an instigating ingredient for abetment or suicide by Hazra Bano (deceased). 13. So much so, PW-2 Atta Mohammad has stated that the deceased had borrowed a sum of Rs. 2,400/- from him. PW-3 Ramzan has stated that deceased had borrowed Rs. 5,000/- from her. However, such borrowing are not indicative of ingredients and instrumental & instigating factor giving abetment for suicide. PW-3 Ramzan is stated to be a good relative of deceased from whose 7 testimony, she was never informed about any kind of cruelty. PW-4 Fazal Din has said that when the information was given by a boy that Hazra Bano had consumed something, he was participating in a Panchayat meeting with Habib Ulla and on hearing the news that Smt. Hazra Bano has consumed poison, PW-4 Fazal Din, President of Gram Panchayat Dugrain, where the deceased Hazra Bano was residing at the relevant time, has stated that information was given by a boy while he was attending a meeting with Habib Ulla. However, PW-4 Fazal Din has categorically stated that he has never heard about any kind of torturing or beating by anybody given to the deceased. 14. PW-10 Irshad Hussain, who was well acquainted with Majid Ali, through his testimony has indicated that if any torturing or beating was being made to the deceased, certainly he could have got the information as according to PW-10 Irshad Hussain, the deceased was always happy in her matrimonial house. 15. From the scrutiny of the prosecution witnesses and material on record, we notice that no specific allegations were ever made for committing cruelty or torturing by the alleged accused. Letters Ext. PB and Ext. PH did not indicate any kind of element or ingredient constituting instigating factor for abetment of suicide. PW-10 and PW-11 have also not revealed that the contents of the letter were of instigating nature from where any torturing could be revealed. PW-7 and PW-8 alleged eye witnesses are said to have colluded and could be endeavouring to implicate the alleged accused. 16. Mr. Ashwani Kumar Sharma, learned counsel for the alleged accused has relied upon Mankamma versus State of 8 Kerala (2009) 10 Supreme Court Cases 164 by saying that in the facts and circumstances of the case, the prosecution witnesses are incapable of proving the quilt under Section 306 IPC against the alleged accused and to strengthen his arguments, Mr. Sharma has referred to and relied upon following paragraphs No. 16 and 17 of the aforesaid decision: “16. In the matter of offence under Section 306, IPC we would expect much stronger evidence than what is presented.True it is that the evidence about what happens within the four corners of walls is not available to the Investigating Agency. But in this case, very strangely, the Investigating Agency has not proceeded against the husband against whom there was a very strong suspicion. The Investigating Agency has instead made a scapegoat of the old mother perhaps trying to rely on the age old concept of bickerings between the mother-in-law and daughter- in-law. That is not the universal truth. The courts below should have therefore in such a matter appreciated the evidence with discerning eyes. The evidence should have been weighed with more care and the finding should have been arrived at that for but such ill- treatment by the accused, the deceased would not have committed suicide. Such would be the standard of proof in the matter under Section 306, IPC. It is indisputable true that the court has to appreciate the evidence with open mind and not being driven by the age old concepts. 17. Applying all these principles we find that the evidence falls short of the required standard of proof. We are, therefore, not in a position to agree with the courts below in so far as their findings are concerned. In our opinion, the evidence in this case fell miserably short of the required standard of proof. In that view we would allow the appeal and acquit the accused. The 9 judgments of the courts below are set aside and the accused is acquitted. Her bail bonds are cancelled.” 17. In our considered view, on the basis of material on record, the prosecution has failed to make a chain of link with the offence against the alleged accused and have failed to prove the case beyond reasonable doubt. The present criminal appeal against the impugned judgment of acquittal being without merit is dismissed. (R.B. Misra) Judge. (V.K. Sharma) Judge. May 19, 2010. 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