1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT GANI KHAN vs. THE STATE OF RAJASTHAN. 1.D.B. Criminal Appeal No.343/2002 under section 374 (2) Cr.P.C. against the judgment and order dated 16.03.2002 passed by the Additional Sessions Judge (Fast Track), Nagaur in Sessions Case No. 208/2001[15/2001]. 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 appellants. Mr.K.R.Bishnoi , Public Prosecutor. BY THE COURT (PER HON'BLE JOSHI, J.): This is an appeal filed by the accused appellant Gani Khan , against the judgment dated 16.03.2002, passed by the learned Additional Sessions Judge (Fast Track), Nagaur in Sessions Case No. 208/2001[15/2001]. 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. 208/2001 [15/2001] 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 and a separate Sessions Case No.17/2003 was registered. 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. 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 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 3 witnesses were recorded by the investigating officer and a site memo was prepared , autopsy was conducted on the body of the deceased Maina and after usual investigation a charge sheet was filed in the court of Addl.Chief Judicial Magistrate, Nagaur against accused appellants Gani Khan, Mahendu Khan and Mumtaz Khan and in that charge sheet accused appellants Mahendu Khan and Mumtaz Khan remained proclaimed offenders. After the trial of the accused appellant Gani Khan, the learned trial court found the accused appellant guilty for commission of offence under section 302 and 498A IPC and sentenced him 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, the prosecution examined as many as 13 witnesses, namely PW/ 1 Mangu Khan , PW/2 Sultan Khan, PW/3 Muse Khan, PW/4 Allah Bux, PW/5 Kallu Khan, PW/6 Chand Khan, PW/7 Tejpal Singh, PW/8 Dr. Ram Bilas Choudhary , PW/9 Ugma, PW/10 Chuna Ram, PW/11 Prem 4 Prakash, PW/12 Thakur Prasad , and PW/13 Rakesh The accused was asked to explain the incriminating evidence adduced by the prosecution during the course of trial and the accused produced two witnesses in defence , namely, DW/1 Heer Khan and DW/2 Hardeen Ram. 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 Gani Khan of the charge levelled against him and the learned trial court held that the circumstantial evidences available against the accused appellant were sufficient to prove the guilt of 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 suffered 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 deserved to be acquitted of the charges levelled against him. The learned Public Prosecutor vehemently defended the judgment of the learned trial court and argued that the 5 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 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 Kahn is 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. 6 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 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.Parcha was executed as Ex.P/2. The Investigation officer inspected the site and prepared site memo Ex.P/3. The dead body of Maina was lying at the site of the incidence. Investigation Officer prepared Ex.P/4. Panchnama of dead body of deceased Maina was prepared as Ex.P/5 and dead 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 Ex.P/11. At the time of taking these goods in possession , Muse Khan, Shere Khan and Sultan Khan were also present. PW/2 Sultan Khan and PW/5 Kallu Khan also corroborated the evidence of PW/1, Mangu Khan . 7 PW/3, Muse Khan did not corroborate the prosecution's evidence and therefore, he was declared hostile. PW/4, Allabux deposed that Maina was his cousin sister, she was married to Gani Khan. Maina used to tell him that her in laws were harassing her for dowry. Later Maina was put to death by burning her. PW/6, Chand Khan deposed that he used to reside in Delhi Darvaza at Nagaur and his field was situated in the kankan of Amarpura. About 12 months previous to recording of his statement in the court in the night he heard the loud cries of a lady. He saw four persons including Maina in the dhani of Mahendu Khan and in the morning at 07.00 or 07.30 AM Mahendu Khan and Gani Khan were returning from their dhani. At 09.00 AM there was a loud cry from the dhani of Mahendu Khan then he reached there and saw the dead body of Maina . Her tounge was hanging out from her mouth and her clothes were burnt. He remained there for 10 minutes and then he returned to his dhani. Maina was burnt after causing her death. The dhani of Mahendu Khan was 20 meters away from his Dhani. PW/7, 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 trial he filed the charge sheet against the accused 8 persons. PW/8 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 position 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 the neck congested anteriorly and laterally. Pharynx and trachea conjusted. R.M. Present in all four limbs. Note – All burns are post mortem burns.” 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 . Asphyxia caused due to throttling was sufficient to cause death of Maina. 9 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 Dr.Anandi Lal Agrawal . PW/9 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 her father in law, trying to outrage her modesty. 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 statements of some of the witnesses, he further handed over the investigation to some other officer. PW/11, Prem Prakash deposed that in the month of December 2000 he was posted as Addl. Superintend 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 made certain queries regarding postmortem report , through letter Ex.P/17 and he received Ex.P/18 communication from the Medical Jurist. 10 PW/12, 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/13, Rakesh is the investigating officer who was 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. Accused in his examination took a plea that the place of incident did not belong to him or his father as khatedari land and further stated that land being Khasra No.315 of Basani was that of Aslam Khan. Accused also stated that Maina committed suicide for the reason that he wanted to go back to Bombay. The evidence produced in defence , DW/1 Heer Khan and DW/2 Hardeen Ram deposed about the same fact which were stated by accused in his examination. DW/2 Hardeen Ram produced the certified copy of the khatedari of Khasra No.315 as Ex.D/9 and Jamabandi as Ex.D/10. The main contention of the learned counsel for the accused appellant was that there were major contradictions in the statement of the witnesses, recorded during the trial and 11 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. 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 12 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. 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 13 1996 Cr.L.R. (Raj.) 70. 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 appreciated all the circumstantial evidence in right perspective . So far as offence under Section 498-A IPC is concerned, the father of the deceased PW/1Mangu Khan , the mother of the deceased PW/9 Ugma and maternal uncle of the deceased PW/2 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 14 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 Khan for finding him guilty for commission of offence under Section 498-A. As regards offence under section 302 IPC is concerned, 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/8 Dr. Ram Bilas Choudhary, 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 in which 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 15 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 that the death of the deceased Maina was homicidal and not suicidal or accidental. The facts of the judgments cited by the learned counsel for the accused appellant are different from the facts of the present case. PW/8 Dr.Ram Bilas Choudhary proved that cause of death was asphyxia and the burn injuries on the dead body were post mortem in nature. Obviously, a dead body cannot burn itself. The asphyxia had occurred prior to death. It is the cause which resulted in her demise. Secondly, the dead body was lying out side room at place having kucha floor but not even slightest signs of movement were observed at that place. A burning person cannot remain static. Thirdly, the ornaments worn by her were placed in a chunni which suggests that after killing , the ornaments were taken of, before burning her. Accused appellant could not get any issue from her , therefore, their relations were strained. He could fetch his wife 16 from her paternal house after hot altercations which also gives him a moto to kill her. This is also undenied and undeniable fact that accused appellant was very much present in the dhani. Though there is no eye witness as the place of incident is a place in scattered Dhani, in a field but the chain of circumstances, categorically indicate that accused alone committed the crime because he had a motive and was present at the scene of occurrence when homicidal death of Maina took place. Hence, we do not find any infirmity in the conviction of accused by the trial court, as regards murder. The learned trial Judge also appreciated the statement of each witness in detail. In view of the aforementioned discussions, the charge against the accused appellant Gani Khan, for the commission of offence under section 498A IPC, could not be proved and he is acquitted for the above charge. So far as the charge against him under section 302 IPC is concerned, the prosecution had proved the above charge against the accused appellant beyond all reasonable doubts and, therefore, his conviction under section 302 IPC is maintained and also the sentence awarded by the learned trial court for the commission of offence under section 302 IPC is also maintained. Resultantly, the appeal filed by Gani Khan is partly allowed and he is acquitted for the commission of offence under section 498A IPC and is convicted for the commission of offence under 17 section 302 IPC and the sentence awarded by the learned trail court vide order dated 16.03.2002, in Sessions Case No. 208/2001[15/2001] for the commission of offence under section 302 IPC, is also maintained. (KAILASH CHANDRA JOSHI),J. (PRAKASH TATIA), J. l.george