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Friday, May 26, 2017

failed to appreciate = but not discussed as to why their testimony as to the fact that married sister-in-law (of the deceased) and her husband used to live in village Sabutar, is not believed. - we find that both the courts below have erred in law in holding that the charge under Section 304B read with Section 34 IPC stood proved as against the present appellants. In our opinion, in view of the evidence discussed above, it cannot be said that it is proved beyond reasonable doubt that the present appellants, who are sister-in-law and brother-in-law of the deceased, tortured the victim for any demand of dowry. In our opinion, in the present case which is based on circumstantial evidence it cannot be said that appellants had any common intention with the husband of the deceased in commission of the crime. It is sufficiently shown on the record that they used to live in a different village. Therefore, we are inclined to allow the present appeal. Accordingly, this appeal is allowed, and conviction and sentence recorded as against the present appellants Bibi Parwana Khatoon @ Parwana Khatoon and Md. Hasan @ Hasan Raja is set aside.

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURSIDICTION

                    CRIMINAL APPEAL NO.    888   OF 2017
               (Arising out of S.L.P. (Crl.) No. 6630 of 2016)


Bibi Parwana Khatoon @
Parwana Khatoon and another                  … Appellants

                                   Versus

State of Bihar                                     …Respondent



                               J U D G M E N T


Prafulla C. Pant, J.


Leave granted.

2.    The appellants,  who  are  sister-in-law  and  brother-in-law  of  the
deceased, have challenged the judgment and order dated 09.12.2016 passed  by
the High Court of Judicature at Patna in Criminal  Appeal  (SJ)  No.  48  of
2014 whereby said Court has dismissed the criminal  appeal  affirming  their
conviction and sentence under Section 304B read with Section  34  of  Indian
Penal Code (IPC) recorded by the Ad hoc Additional  District  Judge,  Purnea
in Sessions Trial No. 1219 of 2010 (with Sessions Trial No. 617 of 2011).

3.    Prosecution story, in  brief,  is  that  Tamkinat  Ara  @  Bulbul  got
married to Md. Parwez Alam on 30.09.2009 and she used to  live  in  her  in-
laws’ house.  The prosecution case is that after her marriage deceased  used
to live with  Md.  Parwez  Alam  (husband),  Abdul  Gaffar  (father-in-law),
Baitun Nisha (mother-in-law), Bibi Parwana Khatoon (sister of  husband)  and
her husband Md. Hasan (both appellants).  It is  alleged  by  the  informant
Md. Faisal PW-5 (brother of the deceased) that the deceased  was  killed  by
setting her on fire by all  the  above  accused.   On  receiving  telephonic
information on 30.05.2010 from  father-in-law  of  the  deceased,  PW-5  Md.
Faisal went to see his sister and found that she had died of burn  injuries.
 On the basis of First Information Report given by  Md.  Faisal  Crime  Case
No. 184 of 2010 was registered relating to offence punishable under  Section
304B read with Section 34  IPC  against  all  the  five  accused  at  Police
Station Khajanchi Hat, Madhubani.  PW-7 Arti Kumari Jaiswal,  Station  House
Officer, started investigation.  Dead body of the deceased  was  sealed  and
sent for post mortem examination.  PW-6 Dr. Umesh Kumar of  Sadar  Hospital,
Purnea, conducted post mortem examination on the dead body of  Tamkinat  Ara
and found following ante mortem injuries: -
“(i)  Rigor mortis present in all four limbs and trunk

(ii)  Tongue was protruded between teeth

(iii) Burned (burnt) blood clot from/in ear opening

(iv)  100% burn of five degree with smell.  Key oil and roasted smell,  line
of redness along burn area absent, vesication and sign of  inflammation  was
absent, formation of  granulation  tissue  absent,  indicating  post  mortem
burnt.”

      The Medical Officer opined that the deceased died of asphyxia  due  to
strangulation.

4.    Later, investigation was taken  over  by  PW-8  Lal  Babu  Prasad  who
submitted charge sheet against all the five accused.  Accused  Baitun  Nisha
(mother-in-law of the deceased) died during the course of  trial,  as  such,
case as against her stood abated  and  the  trial  court  proceeded  against
remaining four accused.

5.    After framing charge against the accused,  the  trial  court  recorded
the evidence of PW-1 Syed  Masuf  Ahmad,  PW-2  Md.  Azam  Rad,  PW-3  Samim
Akhtar, PW-4 Taleba Kauser  (brother  of  the  deceased),  PW-5  Md.  Faisal
(brother  of  the  deceased  and  informant),  PW-6  Dr.  Umesh  Kumar  (who
conducted post mortem examination), PW-7 Arti Kumari  Jaiswal  (who  started
investigation) and PW-8 Lal Babu Prasad (who concluded the investigation).

6.    The prosecution evidence appears to  have  been  put  to  the  accused
under Section 313 of Criminal Procedure Code whereafter, on  behalf  of  the
accused, defence evidence was adduced, and DW-1 Md. Mozammil  Hussain,  DW-2
Md. Shamim, DW-3 Manish  Kumar  Srivastava,  DW-4  Raghunandan  Yadav,  DW-5
Rahul Kumar, DW-6 Mukesh Kumar, DW-7 Nakir Yadav,  DW-8  Dhani  Yadav,  DW-9
Md. Jasir and DW-10 Sanni Yadav, were got examined.

7.    The trial court,  after  hearing  the  parties,  found  all  the  four
accused guilty of offence punishable under Section 304B  read  with  Section
34 IPC, and convicted them accordingly.  Md. Parwez  Alam  (husband  of  the
deceased) was sentenced to rigorous imprisonment for  ten  years,  and  each
one of the remaining three convicts was sentenced to  seven  years  rigorous
imprisonment.

8.    Aggrieved by the judgment  and  order  dated  19.11.2013/  26.11.2013,
passed by the trial court in Sessions Trial No. 1219 of 2010 (with  Sessions
Trial No. 617 of 2011), whereby the accused were  convicted  and  sentenced,
as above, three appeals were filed before the High Court.   Criminal  Appeal
(SJ) No. 59 of 2014 was filed by Md. Parwez Alam (husband of the  deceased),
Criminal Appeal (SJ) No. 20 of 2014 was filed by  Abdul  Gaffar  (father-in-
law of the deceased) and Criminal Appeal (SJ) No. 48 of 2014  was  filed  by
present appellants Bibi Parwana Khatoon and  Md.  Hasan.   The  High  Court,
after hearing the parties,  allowed  the  appeal  of  father-in-law  of  the
deceased but maintained the conviction and sentence recorded  against  other
three.  Hence, this appeal through special leave  by  sister-in-law  Parwana
Khatoon and brother-in-law Md. Hasan.

9.    Our attention is drawn on behalf of the appellants  to  the  testimony
of the defence witnesses relating to the fact that they  were  not  residing
in Kali Prasad Tola, and it is argued that the courts below have  failed  to
appreciate the same.  It is also pointed out that there is no  special  role
assigned to the appellants in the First Information Report.

10.   DW-1 Md. Mozammil Hussain, cousin of  husband  of  the  deceased,  has
stated that Parwana Khatoon and Md. Hasan used to live in  village  Sabutar,
and on the day of the incident they were not in village  Kali  Prasad  Tola,
Madhubani, i.e. the place where the deceased and her husband used  to  live.
DW-4 Raghunandan Yadav, who is  resident  of  Kali  Prasad  Tola,  has  also
stated  that  the  present  appellants  used  to  live  in  village  Sabutar
(Purnea).  This witness belongs to village Sabutar.  DW-7 Nakir  Yadav  also
corroborated the fact that Parwana and her husband Hasan  used  to  live  in
Sabutar.  This fact is further corroborated by DW-8 Dhani  Yadav,  DW-9  Md.
Jasir and DW-10  Sanni  Yadav,  all  neighbours  of  the  deceased  and  her
husband.

11.   We have gone through the judgment and order passed by the trial  court
(copy Annexure P-9) in which the trial  court  has  mentioned  the  name  of
defence witnesses but not discussed as to why  their  testimony  as  to  the
fact that married sister-in-law (of the deceased) and her  husband  used  to
live in  village  Sabutar,  is  not  believed.   The  High  Court  has  also
committed the same error.

12.   Apart from the above, in  support  of  their  plea,  there  are  three
documents filed on behalf of the appellants,  which  are  copies  of  public
documents, to show that they are residents of village  Sabutar  in  District
Purnea.  Copy of the Residence Certificate  is  Annexure  A-1,  which  shows
that Sub Divisional Officer, Sadar,  Purnea,  has  certified  on  31.10.2008
that Hasan Raja (appellant No. 2) used to live in village Sabutar,  P.S.  K.
Nagar, District Purnea.  Another document (Annexure  A-2)  is  copy  of  PAN
issued by Income-tax Department of Government of  India,  which  appears  to
have been sent  on  the  address  of  the  account  holder  Parwana  Khatoon
(appellant No. 1) on her address of Sabutar, Purnea, Pin Code  854205.   Not
only this, copy of service book (Annexure A-3) of appellant  No.  1  Parwana
Khatoon shows that she was Panchayat teacher in  primary  school,  K.  Nagar
(Purnea).  This document also shows that  address  of  appellant  No.  1  is
village Sabutar, P.O. Kajha, Police Station K. Nagar, District Purnea.   All
these public documents read with  the  oral  testimony  adduced  before  the
trial court, create serious doubt  in  the  prosecution  story,  so  far  it
relates as against the present appellants.  (We are not  commenting  on  the
evidence as against the husband of the deceased.)

13.   In view of the above discussion of oral and documentary  evidence,  we
find that both the courts below have  erred  in  law  in  holding  that  the
charge under Section 304B read with Section 34 IPC stood proved  as  against
the present appellants.  In our opinion, in view of the  evidence  discussed
above, it cannot be said that it is proved beyond reasonable doubt that  the
present  appellants,  who  are  sister-in-law  and  brother-in-law  of   the
deceased, tortured the victim for any demand of dowry.  In our  opinion,  in
the present case which is based on  circumstantial  evidence  it  cannot  be
said that appellants had any  common  intention  with  the  husband  of  the
deceased in commission of the crime. It is sufficiently shown on the  record
that they used to live in a different village.  Therefore, we  are  inclined
to allow the present appeal.

14.   Accordingly, this appeal  is  allowed,  and  conviction  and  sentence
recorded as against the present appellants Bibi Parwana  Khatoon  @  Parwana
Khatoon and Md. Hasan @ Hasan Raja is set  aside.   They  are  acquitted  of
charge of offence punishable under Section 304B read with  Section  34  IPC.
They are in jail.  They shall be  released  forthwith  if  not  required  in
connection with any other crime.


                                                            ………………………..…….J.
                                                               [N.V. Ramana]



                                                            ………………………..…….J.
                                                          [Prafulla C. Pant]
New Delhi;
May 04, 2017.

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