Dismissed

Baby Farzana v. the State of Jharkhand

Jharkhand HC13 Apr 2023Acq. App./20/2020

Case brief

AI extract

What is this about?

The High Court of Jharkhand dismissed an acquittal appeal filed by the informant against most accused persons in a dowry death case. Upholding the trial court's decision, the appellate court held that evidence did not sufficiently prove prosecution's case due to medical evidence indicating suicidal death and lack of corroborated cruelty, unless fits special category.

What did the court decide?

Acquittal Appeal dismissed against respondents 3 to 6; versions of judgment approved and copy transmitted.

Baby Farzana Vs the State of Jharkhand — Dowry and Cruelty | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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(Criminal Appellate Jurisdiction)

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Acquittal Appeal No. 20 of 2020

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(Against the judgment of acquittal dated 13^th December 2019 passed by the learned Additional Sessions Judge-VII cum Spl. Judge Crime Against Women, Hazaribag in Sessions Trial Case No. 197 of 2016)

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------

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Baby Farzana, wife of Md. Iliyash, resident of Khan Road, Khirgoan, PO and PS Sadar, District Hazaribag ...... Appellant

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Versus

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The State of Jharkhand

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Md. Kalim, son of Md. Basruddin,

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Md. Basruddin, son of late Gulam Nabi

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Md. Salim, son of Md. Basruddin

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Rasida Khatoon, wife of Md. Basruddin

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Nausawa Pravin, wife of Md. Salim

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All residents of village- Khirgoan, PO & PS Sadar, District Hazaribah . ..... Respondents

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PRESENT

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HON’BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON’BLE MR. JUSTICE RATNAKER BHENGRA

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------For the Appellant : Mr. Ashok Kumar Singh, Advocate For the State : Mrs.Vandana Bharti, APP ------- Oral Order 13^th April 2023

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Per, Shree Chandrashekhar,J.

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Acquittal Appeal No. 20 of 2020 has been filed by Baby Farzana who is the informant of Sadar (Barabazar) PS Case No. 129 of 2016.

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In this Acquittal Appeal filed by virtue of a right conferred in the victim/informant under proviso to section 372 of the Code of Criminal Procedure, Baby Farzana has challenged the judgment dated 13^th December 2019 passed in Sessions Trial Case No. 197 of 2016.

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In Sessions Trial Case No. 197 of 2016, the family members of Khusnuma @ Naina who were charged under sections 304-B/34 and 302/34 of the Indian Penal Code have been acquitted except her husband.

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The learned trial Judge has held that the prosecution witnesses could not tender such evidence so as to prove that soon before her death Khusnuma was subjecting to harassment and torture in connection to

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2 Acquittal Appeal (DB) No.20 of 2020

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demand of dowry. Accordingly, the learned trial Judge has held that a presumption under section 113-B of the Indian Evidence Act cannot be raised against the accused persons that they have committed dowry death of Khusnuma.

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5. The learned trial Judge has held as under:

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“ 20. Learned counsel appearing for the accused has contended that the statement of the informant i.e PW-5 Baby Farzana and PW4 Md. Illias has not been corroborated by any other independent witnesses and therefore, the prosecution has failed to prove the most essential ingredients of the offence u/s 304(B) of I.P.C that soon before her death, the deceased was subjected to cruelty and harassment for the demand of dowry. Learned defence counsel has also contended that even if it is said to have been established that the death of the deceased was unnatural having occurred otherwise than normal circumstance, within seven years of the marriage but the fact remains that the prosecution has to prove by bringing cogent and impeachable evidence on record regarding the demand of dowry and subjecting the deceased to cruelty by the accused facing the trial and here in this case, since the evidence of parents has remained uncorroborated, conviction cannot be based on the evidence of such interested witnesses. With respect to this contention of the defence, I would like to mention that section 134 of Indian Evidence Act acknowledges well recognized maxim "evidence has to be weighed and not counted" and section 134 of Indian Evidence Act has categorically laid down that no particular number of witness shall, in any case, be required for the proof of any fact. In Jagdish Prasad Vs. State of M.P AIR 1994 SC 1251, it was held that as a general rule, court can and might act on the testimony of a single witness provided he is only reliable. There is no legal impediment in convicting a person on sole testimony of a single witness. Therefore, the law as emerges from section 134 and by the decision of Hon'ble Supreme Court is that the conviction can be based on the testimony of a single witness, if he is wholly reliable and his evidence is unblemished and beyond all possible criticism; corroboration may be necessary when he is partially reliable. Here in this case, defence has failed to point out any major contradictions in the evidence of PW-4 Md. Illias and PW5 Baby Farzana, parents of the deceased to show that their statements with respect to the demand of cash Rs. 60,000/- by the accused and subjecting the deceased to cruelty on the non fulfillment of such demand can be doubted. It is also important to state that the parents of victim of the harassment and cruelty are the most natural witnesses to depose these facts and the other person who has no concern with the family affairs of either the accused or the informant can not be expected to come to depose with respect to such internal family matters. Hence, in such facts and circumstance, I do not find any reason to disbelieve the version of PW-4 Md. Illias and PW5 Baby Farzana given in the court regarding the harassment and cruelty meted out to their daughter on the non fulfillment of demand of cash Rs. 60,000/-. Normally no witness other than family members are in the position to state about these facts. Here, in this case, evidence of PW1 Md. Alam is also explicit in this regard. This witness is maternal uncle of the deceased and also appears to be an educated person as it appears that the informant's written report is in the writing of this witness. It is general trend that in village, if any occurrence takes place and

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the matter is required to be reported to the police, the family members and villagers first search for any educated person amongst themselves to get the report prepared. The defence has failed to show any reason that this witness had any reason for falsely implicating the accused. The evidence of this witness is to the effect that the amount of Rs. 60,000/- was demanded at the time of marriage but the said demand could not be fulfilled at that time. He further deposed that again during the stay of deceased at her matrimonial house this demand cropped up and on non fulfillment of the demand, his niece was physically assaulted by accused husband Md. Kalim. According to this witness, when his niece had come to her Maike, accused Md. Kalim had approached him and on his request and persuasion, he had sent his niece to her Sasural, where she died on 02.02.16. Therefore, I find that the evidence of the witnesses establishes beyond doubt that deceased was subjected to cruelty and harassment in connection of demand of dowry soon before her death and as such presumption u/s 113(B) of Indian Evidence Act can be invoked. This presumption though can be rebutted but the accused has failed to bring any evidence on the record to rebut this presumption. The accused in their defence have taken the plea that the deceased committed suicide after being disturbed by the quarrel, which had taken place in the morning of the alleged date of occurrence. It has been contended that on the same morning, a dispute/quarrel had taken place in the family when the deceased had washed her clothes in the washing machine given to Nausawa by her parents at the time of her marriage with accused Md. Salim solemnized only 21 days before the date of occurrence. However, except this bare assertion at the time argument, there is no material on the record to suggest this fact. The accused persons have neither taken this stand in their statements recorded u/s 313 Cr.P.C nor adduced any evidence to prove this fact.

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21. Therefore, the evidence on the record put forth by the prosecution is sufficient to establish all the ingredients of the offence punishable u/s 304B of I.P.C. and the prosecution has succeeded in establishing this charge against the accused Md. Kalim, husband of the deceased. So far as involvement of other accused persons facing trial, I find that evidence of all the witnesses shows that accused Md. Basruddin had been residing in Chatra with his second wife for the last 20 years, whereas the accused Nausawa had come in the house only 21 days before the date of occurrence. In such circumstances, there was no question of their involvement in the offence of subjecting the deceased to cruelty and demand of dowry. I also find that except one sporadic incident of accused Rashida Khatoon, mother-in-law of deceased of being involved in assaulting the deceased once, no other overt act has been alleged against her. I also find that only PW1 has stated about this incident but his statement in this regard has not been supported and corroborated by any other witness. Moreover, Sporadic incidents of ill treatment or quarrel on any matter in the family by any member of in-laws house do not attract definition of cruelty as they may not be aimed at pressurizing her to fulfill the demand of property. There is also no whisper of allegation that accused Md. Salim used to demand money but the allegationagainst him appears to be very general and vague as non of the witnesses including the informant has given any specific instance or specific occasion of such demand from the side of this accused. Therefore, in such facts and circumstances, I am of the considered opinion that the prosecution has not been able to bring home the charge u/s 304B IPC against accused persons except accused Md.

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4 Acquittal Appeal (DB) No.20 of 2020

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Kalim, husband of the deceased. As a result, I find and hold that the accused Md. Kalim guilty for committing the offence of dowry death u/s 304B of the I.P.C and accordingly, he is convicted for the offence punishable u/s 304B of I.P.C. Bail of the accused is cancelled and he is taken judicial custody. Rest four accused persons namely, Md. Basruddin, Md. Salim, Rashida Khatoon and Nausawa are acquitted from the charge u/s 304B of IPC. They and their bailors are also absolved from the liability of their bail bonds. …. …..”

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The marriage of Khusnuma was solemnized with Md. Kalim on 15^th January 2012. According to the informant, six months after the marriage the husband and other family members started demanding Rs.60,000/- and one motorcycle and in connection thereof they inflicted various acts of harassment and torture upon her daughter. She has further deposed in the Court that a panchayati was convened and the dispute was sorted out but finally her daughter was killed by her husband and the in-laws. PW1 Md. Alam who is the maternal uncle of Khusnuma has also stated about harassment and torture of his niece at the hands of the accused persons. Similarly, PW2 Md. Jainul Ansari has also stated that his granddaughter was killed by strangulation by wrapping a dupatta around her neck by the accused persons. PW4 Md. Illias who is the father of Khusnuma has stated in the Court that his daughter narrated her miseries in her matrimonial home in connection to demand of Rs.60,000/- and one motorcycle by the accused persons. PW3 Zafar Akil who is the resident of village Khirgaon has deposed that Khusnuma had quarrels with her in-laws in connection to demand of dowry. He has further stated that a panchayati was convened to resolve the issue and in February 2016 he heard that Khusnuma was killed in her matrimonial home.

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Admittedly, these witnesses are not eyewitness to the occurrence in which Kushnuma has died and, therefore, they could not have spoken anything about the circumstances under which she has died. The cause of death of Kushnuma has been indicated in the medical evidence tendered by Dr. Mahendra Prasad Chaudhary. As PW6, the doctor has deposed in the Court that on examination of the dead body of Kushnuma he found ligature mark over upper part of her neck above thyroid cartilage running obliquely upward and backward up to both mastoid region. On dissection of ligature mark, the doctor has found white band found beneath the ligature mark and pithechial hemorrhagic points were also found over the

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margin of ligature mark. In the opinion of PW6, Kushnuma has died thirty-six hours from the postmortem examination due to asphyxia. In his cross-examination, PW6 has stated that if someone dies through strangulation his/ her tongue may protrude.

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These question seems to have been put to PW6 by the defence to elicit from him in the context of his observation in the post-mortem report that eyes and mouth of Kushnuma both were found closed.

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The aforesaid observations of PW6 clearly indicate that Kushnuma has died a suicidal death.

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In “Modi's Textbook of Medical Jurisprudence and Toxicology” (26^th Edition), the learned writer has stated that in case of homicidal death there shall be fracture of larynx and trachea.

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In “Ponnusamy v. State of T.N.” (2008) 5 SCC 587 the Hon'ble Supreme Court has observed that existence of a fracture on the hyoid bone may lead to a conclusive proof of death by strangulation but absence thereof does not prove the contra. There is no observation by PW6 about any scratch mark over the face or other parts of the body of Kushnuma. Also, any abrasion or nail marks, or bruises around face or neck were not found by him.

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In a prosecution under section 304-B of the Indian Penal Code, the prosecution is required to prove such facts which would constitute essential ingredients for the offence of dowry death. The submission made on behalf of the informant/ appellant that a presumption under section 113-B of the Indian Evidence Act must have been raised by the learned trial Judge cannot be accepted without showing that the prosecution has established a prima facie case under section 304-B of the Indian Penal Code, for which it must be shown to the Court that the woman has died under circumstances otherwise than normal circumstance. A suicidal death can be said to be a death not under normal circumstances but then it is difficult to raise a presumption of dowry death in absence of an allegation of abetment to suicide. It is well-remembered that the statutory presumption under section 113-B of the Indian Evidence Act which the Court can raise against the accused does not relieve the prosecution of its duty to establish its case beyond all reasonable doubt.

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6 Acquittal Appeal (DB) No.20 of 2020

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In “Shambu Nath Mehra v. State of Ajmer” AIR 1956 SC 404

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the Hon'ble Supreme Court has observed as under:

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“11. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and S. 106 is certainly not intended to relieve it of that duty. On the contrary. It is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience.

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The word "especially" stresses that it means facts that are preeminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not.

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It is evident that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. The King, 1936 PC 169 (AIR V 23) (A) and Seneviratne v. R. 1936-3 ER 36 AT P. 49 (B).

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13. We recognise that an illustration does not exhaust the full content of the section which it illustrate but equally it can neither curtail nor expand its ambit; and if knowledge of certain facts is as much available to the prosecution, should it choose exercise due diligence, as to the accused, the facts cannot be said to be especially" within the knowledge of the accused. This is a section which must be considered in a common sense way; and the balance of convenience and the disproportion of labour that would be involved in finding out and proving certain facts balanced against the triviality of the issue at stake and the ease with which the accused could prove them, are all matters that must be taken into consideration. The section cannot be used to undermine the well established rule of law that save in a very exceptional class of case, the burden is on the prosecution and never shifts.”

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Mr. Ashok Kumar Singh, the learned counsel for the appellant has contended that the informant who is the mother of Khusnuma, her uncle and grandfather have made specific allegation of demand of Rs.60,000/- and one motorcycle but this vital piece of evidence has been ignored by the learned trial Judge and while so the judgment under challenge is seriously flawed in law.

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The evidence tendered by PW1, PW2, PW4 and PW5 on demand of dowry and harassment and torture of Kushnuma in her matrimonial home is not a substantive evidence as envisaged under section 60 of the Indian Evidence Act. These witnesses have admitted in the Court that Kushnuma had informed them about demand of Rs.60,000/- and one motorcycle by the accused persons.

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In “Sher Singh v. State of Haryana” (2015) 3 SCC 724 the Hon'ble Supreme Court has observed that in a case of dowry death only when the prosecution evidence sufficiently establishes that the victim was treated with cruelty the assumption of deemed guilt of the accused would

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arise.

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In “Sher Singh” the Hon’ble Supreme Court has observed as

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under :

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“25.The fundamental and vital question that the Court has to ask itself and find a solid answer to, is whether this evidence even preponderantly proves that the appellant had treated the deceased with cruelty connected with dowry demands. It is only if the answer is in the affirmative will the Court have to weigh the evidence produced by the appellant to discharge beyond reasonable doubt, the assumption of his deemed guilt.”

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In the aforesaid state of evidence, the learned trial Judge has rightly held that prosecution has failed to establish the charge of dowry death against the accused persons. Furthermore, once it is established from the prosecution's own evidence that Kushnuma has suffered a suicidal death a charge under section 302 of the Indian Penal Code cannot survive.

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There are certain judicially evolved parameters to test the legality of the judgment of acquittal rendered by the learned trial Judge. The powers of the Appellate Court to interfere with the judgment of acquittal are no doubt same as the powers exercised by the Court while seized with an appeal against the judgment of conviction. However, before the Appellate Court decides to interfere with a judgment of acquittal it is required in law to record a finding that there are compelling reasons arising out of over looking of some vital evidence on the record which warrants interference with the judgment of acquittal.

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In “ Jaswant Singh v. State of Haryana” (2000) 4 SCC 484 the Hon'ble Supreme Court has held as under:

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“21. The principle to be followed by appellate courts considering an appeal against an order of acquittal is to interfere only when there are “compelling and substantial reasons” for doing so. If the order is “clearly unreasonable” it is a compelling reason for interference (see Shivaji Sahabrao Bobade v. State of Maharashtra). The principle was elucidated in Ramesh Babulal Doshi v. State of Gujarat : (SCC p. 229, para 7)

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“While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be

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disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then — and then only — reappraise the evidence to arrive at its own conclusions.” (See also George v. State of Kerala).”

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While so, finding no infirmity in the judgment of acquittal passed in Sessions Trial Case No. 197 of 2016, Acquittal Appeal No. 20 of 2020 is dismissed against the respondent Nos. 3 to 6.

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Let a copy of the judgment be transmitted to the Court concerned through 'FAX'.

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(Shree Chandrashekhar, J.)

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(Ratnaker Bhengra, J.)

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Jharkhand High Court, Ranchi Dated: 13^th April, 2023 S.B./Nibha-A.F.R

Baby Farzana v. the State of Jharkhand

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What is this about?

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Baby Farzana v. the State of Jharkhand

Case brief

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