HIGH COURT OF CHHATTISGARH AT BILASPUR Cr. Appeal No.356/2006 Hasan Khan Vs. Smfe of Chha‘HiSgarh r Pos'r for Judgmenf : 07 07.2006 Sd/— [\v‘\ Dilip Raosaheb Deshmukln‘ Judge *ra 7 / I r Before: Hon'ble ’5hri Justice Dilip Raosaheb Deshmukh Vs ‘ t S‘ta'l’e of Chhaf‘fisgarh hn h g y J U D G M E N T ‘. Shri RR. Sin, Counse! for The qppeHan‘l'. Sri Pam Kofecha, Panel Lawer for The Sfa‘fe. $ ‘ x 4 y (Delivered on fhis ”71 day of Jul 2006) This qnpeal is dircfed agains'r fhe jddmenf dafed 24.2006 deiiveed by Shri 6.R.5an, 4“ Addifional Sessis Judge (F.T.C;), ~ Raigar-h in Sessions Case No.76/2005 whereb while acqui‘H’ing fhe’b3 qupellcmf under Secfion 304-3 of fhe I.P.C. fhe learnd Trial Judge convicted The apllanf under Sec‘llon 306 I.P.C. and senl’enced him ‘l'o RI. for 5 ears an a fine of Rs.200/- and in defaulf To undergo RI. for one mon‘l'h. 2. If is no‘f dispm‘ed Tha‘l’ Asiyu Kha‘fun, who was deaf and umb, was married 'lo The ppellanT four years prior To her deaTh‘ A son was also born ouT of Their wedlock. Asiya KhaTun died of 95% urn injuries on 13.4.2005 in CommuniTy HealTh CenTer, Lailunga. 3. IT was alleged by The prosecution ThaT The appellanT subjecTed The deceased To cruelTy or harassmenT on accounT of demand for dowry soon before her deaTh. 4. The learned Trial Judge framed charge under SecTion 304-8 IPC and in The alTernaTive under SecTion 306 IPC which read as under:- g g 7. r de on y e pe - y d d a b i) ug% EyF? m 13.05.2oa5 $ 1930 w Ina — Em €‘W—é3§mm‘—ma§ma gammmalim$wa&amm m$mmm.ww,m$wwim m$§qma§m$fa§mmliw W13'§Wlm§mguamma?m —3o4—€Lm.iiti$a%aefmm% 612m ‘ r a»: (ii) wgqm§w#wm,mawmwgm ‘ Wm@a‘éw$#aaaumumaw—G?$ wW WHWW,QWWWWWWW _mg@Ra§manm&aiamaosmiah $§ $am1faiima¥m%l 5. e appeHanf abjure ‘re guilt pleaded innocence and examined one wifness besides himself. The prosecu'l'ion examined a many as 20 witnesses. Only Manauar Khan P.W.2, The fa'i'her of appellan‘r deposed Tha‘i’ on a Safurday mrning The appeanf had asked maney fm The deceased for bringing raon. Asiya Khafun refused ‘io give money ‘l'a fhe appellanf and fhereaf‘rer threw whafever Ii'H'Ie money she had, on The ground. Upon fhis, fhe appellan‘i' liffed The money and handing iT over To Asiya KhaTun, slapped her. IT was afTer ‘ This incidenT ThaT Asiyo KhaTun susTained burn injuries inside The house and laTer died on 13.42005 due To 95% burn injuries. The learned Trial Judge relied upon The sole TesTimony of Manauvar Khan P.W.2 menTioned in paragraph 28 of The judgmenT for convicTing The appellanT under SecTion 306 of The I.P.C. However, The evidence of Manauvar Khan P.W.2 in paragraph 1’ which formed The basis for convicTing The appellanT under SecTion 306 I.P.C., was noT puT To The appellanT in his examinaTion under SecTion 313 Cr.P.C. IT was neiTher ( m ga l % Th d h s? v o il ro fi Th prosecufion case npr any o'rher prosecu‘l'i wifness and ven The accused as a defence wifness had sfa'l'ed any sh fact If was, werefore, necessary far fhe learned Triai Judge 1’0 pu? The above men'Honed evidence fa 'Hqe accused f0 giv him an apporfuni'fy 1’0 expiain while examining him unde Secfian 313 Cr.P.C. Te manda‘re 'Sec'ion 313 (1) Cr.P.C. demands Tha'l' “every incrimina'ring circumsfance appearing in evidence especially 'rhose circumstances which form +he basis for canvicfing The accused are pul 'ro he accused in his examinafion undr Secfion 313 Cr.P.C. and he is given an f e oppor‘luni'ly of explaining fhe." 6. Iv is se'Hled law Tha'r if during #he examinatio af The accused under SecTion 313 Cr.P.C. such incriminaTing circumstances-which form Th basis for convic'ring The appellan'r are naT puT To The accused, iT would be a fiT case To exercise The power under SecTion 386 (b) (i) of The CrVP.C. and Ta remand The case To The learned Trial Judge. ExaminaTion of The accused under SecTion 313 Cr.P.C. is noT a mere; formullw and ll is lhe du‘lY of The CourT To examine him on all suclié incriminaTing circumsTances appearing in evidence againsT him which may orm The basis for his convicTion. 7. There is anoTher compelling reason for remanding The case To The learned Trial Judge. The appellanT was prosecuTed under SecTion 04- IPC only buT besides SecTion 304~B of The I.P.C. The appellanT was also charged in The alTernaTive under SecTion 306 of The I.P.C. In boTh The charges, as iT would appear from paragraph 4 (supra), iT was menTione ThaT The appellanT had harased Asiya KhaTun for oTaining illegal securiTy as dowry which resulTed in deaTh of Asiya KhaTun under abnormal circumsTances wiThin 7 years of her marriage. 8. In order To prove The guilT under SecTion 304-3 of The I.P.C., The following ingredienfs musT be proved by The rosecuTion beyond reasonable doubT: ‘ e on e uc e n h of i m n e § l f 33 d s b p A) Thnf deafh of a woman is caused by any burn or bodi!y \ injury or ofherwise Than under normal circumstances wifhin 7 years of her marriage: B) If is, shown Thn'l' soon before her deufh she was sUbjecTed 1’0 crueHy on accoum‘ of a demand for dowry. 9. The learned fria! Judge recorded a clear finding +ha+ Asiya KhaTun died wii'hin 7 years of her marriage To The appeiiam‘ under abnormal circumstances. I'l' also,held fha'f The evidence led by The prosecuTion proved ThaT The appellanT had wriTTen a leTTer ArTicle—A To The a f father of The deceased making a demand for Rs.20,000/- To sTarT a business, failing which The appellanT had refused To keep Asiya KhaTuri wiTh him: IT relied on The TesTimony of Kamarunnisa P.W.4- ThaT Asiya KhaTun had Told her ThaT during pregnancy The appellanT had adminisTered some drug To him and on several occasions The appellanT used To make a demand for money. IT also relied on her TesTimony Tha'i‘ The appellanT had once ThroTTled The deceased wiTh r? greaT force. Relying upon The evidence led by The prosecuTion, iT also held ThaT The deceased commiTTed suicide by seTTing herself on fire since The appellanT had demanded illegal securiTy from her. This word “illegal securiTy" has been used in The charge framed by The learned Trial Judge under 5ecTion 304-3 IPC as a synonym for dowry which was reproduced verbaTim by The learned Trial Judge in para 28 of The judgmenT. The learned Trial Judge also held ThaT on The daTe of occurrence The appellanT asked Asiya for illegal securiTy and upon her refusal TreaTed her wiTh cruelTy by slapping her afTer she Threw whaTever liTTle money she had, on Theigroundd However, as againsT This, in para 25 iT was held ThaT The facT ThaT soon before her deaTh, Asiya KhaTun was TreaTed wiTh cruelTy was noT proved. 10. Surprisingly in The concluding paragraph 28 of The judgment The learned Trial Judge iniTially sTaTed ThaT afTer appreciaTion of 'I eviderace H was no'f proved beyond reasonable doub‘r ‘fha'r fhe appeHanf had caused dawry dea‘i’h of Asiya Kha'run, and Therefore, The appellunf was acquif‘i'ed of ‘rhe’ charge under See‘i'ion 304—3 of The I.P.C. However, in ‘l'he very hex? senfence, fhe learned frial Judge shred ‘i’haf The prosecu‘fion has proved beyond reasonable doubf Tha't on The daTe of quarre! The appeHanT had acTed wiTh cruehy Towards Asiya KhaTun on accounT of obTaining illegal securiTy which insTigaTed Asiya KhaTun To commiT suicide. ‘ 11. The learned Trial Judge Thus held ThaT The following facTs were e§TEblished beyond doubf by The prosecuTion: i) ThaT Asiya KhaTun, a deaf and dumb woman, was married § To The appellanT 4 years prior To her deaTh: ii) ThaT her deaTh occurred oTherwise Than under normal circumsTances as a resulT of burn injuries. iii) ThaT The appellanT had demanded a sum of Rs.20,000/« from The faTher of The deceased vide leTTer arTicle - A,:f,. and iv) ThoT on The daTe of occurrence The appellanT had acTed wiTh cruelTy wiTh Asiya KhaTun on accounT of obTaining illegal securiTy. 12. The learned Trial CourT in paragraph 28 of The judgmenT while acquiTTing The appellanT under SecTion 304—3 of The I.P.C., has in The very nexT senTenoe, sTaTed ThaT The prosecuTion had proved beyond reasonable doubT ThaT The appellanT had TreaTed Asiya KhaTun wiTh cruelTy on The daTe of occurrence on accounT of obTaining illegal securiTy (which was Termed as dowry inlThe charge). 13. Thus, concluding paragraph 28 of judgmenT of The Trial CourT creaTes a serious ambiguiTy. IT is, Therefore, necessary in The inTeresT of jusTice To remand The case and direcT The learned Trial Judge To remove The ambiguiTy in para 28 and To record a clear r W WV W5 vW r gees -A finding as +0 The existence or non-exisfente of fhe fads consfi‘rm'ing offence under Sec-rim 304—3 of the I.P.C. This is esseMiu! because while The learned Tria! Judge observed in paragraph 25 of The judgmen'r fhaf soon before her dea‘fh, fhe deceased was na‘r harassed on accoun-i' of demand for dowry, a finding was recorded in paragraph 28 +haf if was proved beyond doubf Thai on +he dafe of occurrence die appeiian'r had ill-firea‘red and acfed wifh crueH'y wifh 'Asiya Kha‘mn on occoun'i' of a demand for iilegai securi'ry. 14. For 'rhe aforesaid reasons, The case deserves To be remanded «w i'o The iearnedjriai Cour‘r for giving an opporfuniiy To The appeiianT To. explain Those circumsTances appearing againsT him in evidence which formed The basis for his convicTion under SecTion 306 I.P.C. and aiso To record o clear finding in view of The evidence led by The ‘prosecuTion wheTher ThelguilT of The appellanT under SecTion 304-3 of The I.P.C. had heen esTablished or noT. 15. In The resulT The impugned judgmenT daTed 27.4.2006 is seT "‘ aside. The case is remanded To The learned Trial judge wiTh a direcTion To examine The appellanT To give an opporTuniTy To him To explain The circumsTances appearing againsT him in The evidence of Manauvar Khan P.W.2 and in view of whaT has been sTaTed above, afTer giving an opporTuniTy of hearing To The prosecuTion and The defence To remove The ambiguiTy appearing in paragraph 28 of The judgmenT by recording a clear finding as To The exisTence or non—exisTence of The ingredienTs of The offence under SecTion 304-3 of The I.P.C. 16. The RegisTry shall direcT The concerned SuperinTendenT of Jail To produce The appellanT before Shri GR. Sande, 4“ AddiTional Sessions Judge, (F‘T.C.), Raigarh on 17m July 2006. l sw- ,N\l;i_Dilip Raosaheb Deshmukhi o ‘ 7 I Judge , ‘ ._ i; i \‘l . I