Dismissed

The State of Mah v. Nasrin Zakir Patel and Ors.

Bombay HC14 Sept 2017APEAL/13/2006

Case brief

AI extract

What is this about?

In this criminal appeal by the State, the High Court dismissed the prosecution's challenge to the trial court's acquittal of respondents accused of dowry death. The court held that inconsistent dying declarations regarding accidental versus suicidal death prevented the application of Section 113-B of the Evidence Act due to lack of dowry demand evidence.

What did the court decide?

Criminal Appeal dismissed; bail bonds of respondents cancelled and they set at liberty.

The State of Mah Vs Nasrin Zakir Patel and Ors. — Dowry and Cruelty | Bombay HC (2017)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL APPEAL NO. 13 OF 2006

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The State of Maharashtra,
through PSI City Police Station,
Shrirampur, complainant
Sau. Reshma Aasif Khan,
R/o Near Fatima Housing Society,APPELLANT
Ward No.1, Shrirampur(Prosecution)

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VERSUS

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1. Nasrin Zakir Patel, Age : 31 years

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2. Zakir Husen Patel, Age : 37 years

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3. Mumtaz Sharifkhan @ Mumtaz Maheboob Shaikh, Age : 54 years

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4. Asifkhan Sharifkhan, Age : 30 years

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All r/o Ward No.1,RESPONDENTS
Shrirampur, Dist. Ahmednagar(Orig. Accused)

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Mr. S.P. Deshmukh, A.P.P. for the appellant/State
Mr. V.R. Dhorde, Advocate holding for Mr. R.N.
Dhorde, Senior Advocate for respondent Nos. 1 to 4

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 CORAM : SUNIL P. DESHMUKH AND
 SANGITRAO S. PATIL, JJ.

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 DATE : 14th SEPTEMBER, 2017

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JUDGMENT (PER : SANGITRAO S. PATIL, J.) :

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Heard the learned A.P.P. for the State/

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Prosecution and the learned counsel for the respondents.

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2.This is an appeal by the State/Prosecution

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against the judgment dated 4th August, 2005, delivered in
Sessions Case No. 62 of 2003 by the learned Additional
Sessions Judge, Shrirampur, whereby the respondents have
been acquitted of the offences punishable under Sections
498-A and 304-B of the Indian Penal Code (“IPC”, for
short).

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3.Respondent No. 4 is the husband, respondent
No.1 is the sister-in-law and respondent No. 3 is the
mother-in-law of the deceased Reshma. Respondent No. 2
is the husband of respondent No.1. The deceased Reshma

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had married to respondent No. 4 in the year 1998. She
was residing with respondent Nos. 3 and 4 in Ward No.1
at Shrirampur, District Ahmednagar. Respondent Nos.1
and 2 resided in the same ward after 3 to 4 houses from

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the matrimonial home of the deceased Reshma. It is
alleged that respondent No.1 wanted to have share in the
property of her parents and she was under the impression
that the deceased Reshma was coming in her way in

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getting that share. Therefore, respondent Nos.1 and 2

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used to insult and illtreat her. On 12th May, 2003 at
about 11.00 a.m., respondent No. 1 gave a phone call
which was received by the deceased Reshma, whereon
respondent No.1 questioned her as to why she received
the phone call. Respondent No.1 further hurled abuses

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against the deceased Reshma. Then, after some time,
respondent Nos.1 and 2 went to the matrimonial home of
the deceased Reshma and hurled abuses against her.

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Respondent No.1 caused the deceased Reshma to fall on
the ground. Respondent No.2 slapped on the face of the
deceased Reshma. Respondent No.1 also beat her. The
deceased Reshma got annoyed. She went to the room, which

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was on the first floor of the house, latched the door
thereof from inside, poured kerosene on her person from
a stove and set herself ablaze. She sustained burns on
her face, neck, both hands, chest, abdomen, thighs,
calves and back. Respondent No.4 took her to Kamgar
Hospital at Shrirampur and admitted her for treatment.

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4.PHC Hazare of Police Station, Shrirampur
visited Kamgar Hospital, Shrirampur and recorded the
statement of the deceased Reshma at about 4.00 p.m.,
which was treated as the FIR. On the basis of that FIR,

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crime No. I-100 of 2003 came to be registered against
the respondents for the offences punishable under
Sections 452, 498-A, 323, 504 read with Section 34 of
the IPC. The investigation followed. The spot
panchanama was prepared. On the same day, at about 6.00
p.m., the statement of the deceased Reshma was recorded

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by the Special Executive Magistrate in Kamgar Hospital.
She was shifted to Surya Hospital at Pune for further
treatment on 13th May, 2003. On that day also, her
statement was recorded by PHC Newse of Police Station,
Faraskhana, Pune. Then, ASI Khare of that police
station also recorded her statement on that day. One
more statement of the deceased Reshma was recorded by
PHC Chavan in Surya Hospital at Pune on 21st May, 2003.
She died on 23rd May, 2003. After conducting further
investigation, the respondents came to be chargesheeted
for the offences punishable under Sections 498-A, 452,
304-B, 306, 323, 506 read with Section 34 of the IPC.

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5.After hearing the learned A.P.P. and the

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learned counsel for the respondents, the learned Trial

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Judge framed charges against the respondents for the
offences punishable under Sections 498-A and 304-B read
with Section 34 of the IPC only. The respondents

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pleaded not guilty to the said charges and claimed to be
tried. Their defence is that the deceased Reshma
sustained burns accidentally.

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6.The prosecution examined eight witnesses to
bring home the guilt to the respondents. After
evaluating the evidence on record, the learned Trial
Judge came to hold that the prosecution failed to
establish guilt of the respondents for the offences with
which they were charged. The respondents, therefore,
came to be acquitted.

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7.The learned A.P.P. submits that from some of

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the dying declarations of the deccased Reshma, it is
clear that respondent Nos.1 and 2 were harassing and
illtreating her. The evidence of the mother and brother
of the deceased Reshma shows that she was being
illtreated with a view to compel her to bring money from

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her maternal home. She died under unnatural
circumstances within seven years of her marriage.
Therefore, the presumption under Section 113-B of the
Evidence Act would come to assist the prosecution and

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unless contrary is proved by the respondents, it would

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have to be presumed that the respondents caused dowry

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death, punishable under Section 304-B of the IPC.

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According to him, there is sufficient evidence to
connect the respondents with the above mentioned
offences.

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8.As against this, the learned counsel for the
respondents submits that there are five dying
declarations of the deceased Reshma, out of which, in
two of the dying declarations, she states that she
sustained burns accidentally and in the remaining three
dying declarations, she states that she committed
suicide. He submits that there is absolutely no mention
in her dying declarations that respondent no. 4
committed any overt act leading to her death. There is
nothing in her statements to show that the respondents
demanded dowry from her. There is no evidence to show

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that the deceased Reshma was subjected by the
respondents to cruelty as defined in Section 498-A of
the IPC. He submits that the evidence of the mother and
brother of the deceased Reshma in respect of some events
those took place much prior to the date of the incident,

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would be of no help to the prosecution to establish
guilt of the respondents for the above mentioned
offences. He submits that the learned Trial Judge has
rightly considered the facts of the case as well as the

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evidence on record and has rightly acquitted the
respondents.

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9.PHC Hazare (PW1) (Exh-28) states that he

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recorded the FIR/dying declaration (Exh-30) of the
deceased Reshma in Kamgar Hospital at Shrirampur on 12th

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May, 2003 between 4.00 p.m. and 4.30 p.m. The said
dying declaration does not speak anything against
respondent Nos.3 and 4. From that dying declaration, at
the most, it can be said that on the day of the incident

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at about 11.00 a.m., respondent nos. 1 and 2 hurled
abuses against the deceased Reshma and assaulted her.

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The deceased Reshma has given the cause behind such
harassment by respondent Nos. 1 and 2. According to
her, respondent Nos.1 and 2 wanted to have share in the
property of respondent No.1. This demand, in any case,
cannot be considered as a demand for dowry as defined

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under Section 2 of the Dowry Prohibition Act, 1961.

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There is nothing in this dying declaration to show that
either respondent Nos.1 and 2 or respondent Nos.3 and 4
demanded dowry from the deceased Reshma. She states

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that she got annoyed and therefore, went to the room on

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the upper floor of the house, latched the door thereof
from inside, poured kerosene on her from a stove and set

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herself ablaze. As such, she states that she committed
suicide.

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10.In the dying declaration (Exh-47), recorded on
12th May, 2003, she states that there had been quarrel
between respondent No.1 and herself in which respondent
No.1 caught hold of her hair and beat her. She further
states that she went to the bedroom and while she was
igniting the stove, it got burst and she sustained
burns. This dying declaration (Exh-47) speaks of
sustaining the burns by the deceased Reshma
accidentally.

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11.In the dying declaration (Exh-46), recorded on
13th May, 2003, the deceased Reshma states that she
sustained burns because of flaring up of the stove. She
further states that she was not tortured by anybody and
she sustained the burns accidentally.

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12.ASI Khare (PW5) (Exh-43) recorded the dying
declaration (Exh-44) of the deceased Reshma on 13th May,
2003, wherein she repeated the same facts which were
stated by her in her FIR/dying declaration (Exh-30).

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13.PHC Chavan (PW7) (Exh-51) states that he

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recorded the dying declaration (Exh-57) of the deceased

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Reshma in Surya Hospital at Pune on 21st May, 2003. In
that dying declaration, she stated that she committed
suicide due to the harassment of respondent Nos.1 and 2.

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14.The oral dying declarations given by the
deceased Reshma to her mother Munwar (PW4) (Exh-41) and
Imran (PW6) (Exh-45), who are interested witnesses, show
that she committed suicide.

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15.It has come in the evidence of Dr. Ashwini

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(PW8) (Exh-59), attached to Surya Hospital, Pune, that
on 13th May, 2003, when the deceased Reshma was admitted
in that hospital, she had stated that she sustained
burns due to bursting of the stove.

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16.As stated above, there are five dying

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declarations of the deceased Reshma, out of which three
speak of her suicidal death, while two speak of her
accidental death. From these dying declarations, one

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thing is certain that the alleged harassment of the
deceased Reshma at the hands of respondent Nos.1 and 2
was not for demand of dowry. Moreover, it cannot be said

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that the alleged harassment was of such a grave nature
which left the deceased Reshma with no other option but
to put an end to her life. Therefore, the death of

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Reshma cannot be called as “dowry death” since the
essential ingredients i.e. the demand for dowry and
harassment in connection with that demand, to constitute
the offence punishable under Section 304-B of the IPC
(i.e. the demand for dowry) are absent in this case.

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17.The learned counsel for the respondents cited
the judgment in the case of Amol Singh Vs. State of
Madhya Pradesh (2008)5 SCC 468, wherein it has been held

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that when there are more than one dying declarations,

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they should be consistent. However, if some
inconsistencies are noticed between one dying

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declaration and the other, the Court has to examine the
nature of the inconsistencies namely whether they are
material or not.

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18.In the present case, two of the dying

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declarations of the deceased Reshma show that the
injuries which led to her death were sustained by her
accidentally, while the other dying declarations show

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that she committed suicide. Her statement recorded at

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the time of her admission in the hospital also shows

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that she sustained burns accidentally. The inconsistency
of the dying declarations of the deceased Reshma about

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the cause of her sustaining burns is very material.

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Both of the causes given by her cannot stand together.
There is nothing in the evidence of the mother and
brother of the deceased Reshma to show that there was
any recent unlawful demand from the side of the
respondents, which can be said to be proximate to the
suicidal/accidental death of Reshma. In fact, the
deceased Reshma herself does not state about any such
demand. In the circumstances, the presumption under
Section 113-B of the Evidence Act would not come to
assist the prosecution.

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19.In view of the inconsistent statements of the
deceased Reshma about the cause of the burns sustained
by her, it was immensely necessary for the prosecution
to produce independent evidence to prove the allegations
levelled against respondent nos. 1 and 2. No such
evidence has been produced by the prosecution.
Therefore, it cannot be held that the prosecution
established guilt of the respondents and particularly
that of respondent Nos.1 and 2 for the offences
punishable under Sections 498-A or 304-B of the IPC.

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20.The learned Trial Judge has rightly considered
the facts of the case and rightly appreciated the
evidence on record. The learned Trial Judge has rightly

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held that the evidence on record falls short in

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establishing guilt of the respondents for the above
mentioned offences. We subscribe to the inferences

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drawn by the learned Trial Judge and the concur with the

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finding that the prosecution failed to establish guilt
of the respondents for the above mentioned offences.

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The appeal is devoid of any substance. It is liable to

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be dismissed. In the result, we pass the following

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order:-

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O R D E R

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(i)The Criminal Appeal is dismissed and disposed
of.

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(ii)The bail bonds of the respondents are
cancelled. They are set at liberty.

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npj/criapl13-2006

The State of Mah v. Nasrin Zakir Patel and Ors.

Case brief

What is this about?

What did the court decide?

The State of Mah v. Nasrin Zakir Patel and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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