Mustafa Shahadal Shaikh v. State of Maharashtra

Judgment

1. This appeal arises from the order of conviction sentence passed Sessions Case No.7 1990 learned 4th Addl. Sessions Judge Kolhapur. The accused - appellants convicted offences punishable Sections 498-A 304-B Section 34 IPC sentenced suffer RI Section 304-B a Rs.1000/- default suffer RI months Section 498-A IPC. On admission appeal released 2 19/12/1990. The learned counsel appellants submitted appellant nos.2 3 certificates issued Kagal Municipal Council respect appellant no.3 Kolhapur Municipal Corporation respect appellant no.2 placed record. Hence appeal survives only against the appellant no.1 - original accused no.1.

2. Marriage of the appellant no.1 with deceased Hasina - daughter PW 6 - Dilawar Pathan PW 7 - Chandbi 26th January

1989. She staying accused matrimonial village Ujalawadi. On 23/8/1989 matrimonial home, CPR Hospital Kolhapur doctor alive. PW grand-daughter 1 - receiving message Hasina (daughter’s daughter) CPR Hospital, reached Kolhapur grand-daughter dead. He

FIR (Exhibit 20) alleged deceased tortured harassed accused account demand golden chain, golden amount Rs.5000/- committed suicide. 3 The accused custody. The FIR lodged

9.50 p.m. Inquest Panchanama A.D.No.83/1989 recorded. However, complaint PW 1, C.P.No.186/89 registered

9.50 p.m. offences punishable Sections 306, 304-B 498-A Section 34 IPC. 5 Dr. Ramdas Mane conducted mortem submitted report Exhibit

22. The reserved. However, receiving PW CA report Exhibit 23 stated poisoning accused nos.1 2 custody 24/8/1989. Charge-sheet submitted on completion of the investigation on 16/11/1989 and charges were farmed on 6/9/1990 at Exhibit 2.

3. During the trial the prosecution examined as 12 witnesses relations deceased i.e. PW 4 Abdulrahim Shaikh - Grandfather, PW 6 - Dilawar Pathan - father, PW 7 - Chandbi Pathan - mother, PW 8 Hawabi Shaikh - grandmother, PW 9 - Ayubkhan Pathan - brother. PW 1 - Afzal Zari was witness inquest panchanama Exhibit

14. PW 2 - Munid Naikwadi PW 3 - Narayan Mane witnesses offence turned 4 hostile. PW 5 is Dr. Ramdas Mane who performed post-mortem. PW 10 Abubakr Nimsikari mediator marriage deceased accused no.1. PW Nos.11 and 12 were the police personnel.

4. Exhibit 34 is the intimation given in writing Medical Officer, CPR Hospital Police Inspector, Police Station, Kolhapur informing Smt. Hasina Mustafa Shaikh brought hospital already intimation 10 a.m. 23/8/1989. This document deceased hospital Kolhapur before 10 The a.m. 23/8/1989 obviously accused. post-mortem report states occurred therefore, easily inferred and, administration poison midnight accused persons Hasina 23/8/1989. The evidence PW 5 Dr.Ramdas Mane clearly conclusion whether Hasina a suicidal a homicidal Doctor evidence 5 accidental death. The prosecution appears diligently probing further whether ascertained homicidal suicidal, certainly occurred otherwise normal circumstances within marriage. The Court prosecution proved beyond accused subjected deceased cruelty harassment individually demand ornaments, furtherance common intention accused guilty offence punishable Section 498-A Section 34 IPC. It further Hasina occurred within months marriage obvious otherwise normal circumstances within marriage. It further before deceased subjected cruelty harassment accused individually furtherance common intention connection demand for money ornaments therefore, convicted Section 304-B and, Section 34 IPC. As necessary examine challenge sentence conviction respect accused no.1 - 6 appellant no.1 and the appeal stands abated against appellant nos.2 and 3.

5. The learned counsel for the accused submitted a single independent witness examined prosecution rickshaw driver rickshaw accused deceased CPR hospital thrown examined, though statement course investigation recorded. Another person Ashok a neighbour and who informed rickshaw driver unconciousness Hasina examined prosecution and, therefore, cannot prosecution established beyond reasonable doubt, learned counsel. It further submitted external injury deceased contradicted depositions witnesses deceased beaten accused persons. There letter suicide deceased inferred deceased committed suicide harassment cruelty accused persons. Not a single independent witness noticed instances examined and, therefore, 7 prosecution unreliable, claims defence. It further submitted prosecution deceased driven commit suicide because harassment cruelty accused regard reliance placed decision Surest Pharande Vs. State Maharashtra 1997 19971997 V V V LJ LJ LJ 355]. 355] 355] By relying another decision Court Shivaji Patil ors. Vs. State of Maharashtra [2004 [2004 [2004 All MR All MR All MR (Crime) (Crime) (Crime) 36] 36] 36] brining Section 498-A Section 304-B IPC necessary prosecution specific evidence deceased harassed, ill-treated number i.e. occasions and, therefore, appeal deserves allowed. The panchanama occurrence accused Exhibit 16 brought record through evidence PW 2 - Munid Naikwadi. Though declared hostile, admitted distance between accused 100 ft. admitted panchanama presence signed him. He admitted contents panchanama correct. panchanama accused The 8 bedrooms kitchen a seating addition a separate bathroom. In search carried poison accused no.1 present when panchanama carried out. The evidence clearly Hasina matrimonial company accused. In statement recorded Section 313 Cr.P.C. defence denial accused particularly accused no.1, Hasina circumstances otherwise normal. Coming conviction Section 498-A 304-B IPC, necessary mainly consider evidence PW 4 - Abdul, PW 6 - Dilwar Pathan, PW 7 - Chandbi, PW 8 - Hawabi, PW 9 - Ayubkhan PW 10 - Abubakar, who a member family deceased paternal side. It evidence PW 6 - Dilawarkhan, father deceased working Co-operative Department Goa Government Ayubkhan Asifkhan. Ayub was residing - grand-father PW 4 whereas Asif staying Goa. Hasina married 26/1/1989 accused no.1 Tembalewadi i.e. PW

4. At Bakri-Eid Hasina 9 husband Goa Hasina during husband, mother-in-law, father-in-law sister-in-law Rs.5000/-, ring. He further stated Hasina informed torture in-laws beating keeping starved. He stated accused no.1 during sufficient should wait during a accused no.1. Hasina stayed 15 accused Hasina’s brother returned. On 18/8/1989 his wife PW 7 Tambalwadi PW 4 they went accused Ujlaiwadi. At Hasina father-in-law present house. Hasina in-laws tortured arrangement satisfaction demand. Thereafter returned Tambalwadi Hasina Tambalwadi. Hasina started crying accused tortured more. On morning Hasina’s husband mother Tambalwadi. He Hasina’s husband, employment should harass Hasina 10 accused house. Thereafter requested father-in-law PW 4 attention Hasina Goa. In cross-examination admitted arranged marriage marriage. After marriage Hasina in Goa June

1989. He stated Hasina demand torture accused presence husband present time, though accused staying at Goa. He brought Russia cash memo same. He reiterated that when Hasina, torture family accused consisted members. He denied suggestion accused demanded anything. The evidence PW 6 supported evidence PW 7 as well PW regarding Hasina’s disclosures PW 6 10 ill-treatment, torture, demand Rs.5000/-, accused. In cross-examination evidence remained unshattered. Both witnesses deposed before Court instances torture harassment account demand accused were made through PW

4. 11 PW 7 admitted PW 11, mediator settlement marriage of Hasina was informed against accused. She admitted letter father informing ill-treatment and harassment caused by the accused to Hasina nor did Hasina send any letters to her.

6. PW 10, brother of the deceased gave a specific instance by Hasina. As parents, brought Hasina matrimonial 18/8/1989, in-laws starved demand chain, Rs.5000/-. She in-laws husband, mother-in-law father-in-law tortured her. On Hasina’s husband mother-in-law father - PW 6 persuade Mustafa saying arrange employment Mustafa Mustafa anything house. This testimony impeached cross-examination defence asking statement recorded police course investigation witness reiterated stated including instances 12 torture, harassment starvation deceased. It pertinent regard cross-examination PW 12 - Sukhadeo Chougule who was the Investigating Officer and he stated before the trial Court, "I recorded statement of Ayubkhan. The witness has stated before me that, Hasina’s husband, mother-in-law and sister-in-law tortured to Hasina for demand of gold ornaments and cash." It PW 12 examination-in-chief stated before Court 26/8/1989 received enquired accused bottle poison PM accused but the same was not found on 28th August 1989 despite of search.

7. In order to convict an accused for an offence punishable under Section 304-B of IPC the following essentials must be satisfied (a) the death of a woman must have been caused 13 by burns or bodily injury or otherwise than under normal circumstances; (b) death must occurred within marriage (c) before death, the woman must subjected cruelty harassment husband relatives husband; (d) such cruelty or harassment must be for or in connection with demand of dowry. . It is only when the aforementioned ingredients established acceptable evidence called "dowry death" husband relative deemed caused death. In offence punishable Section 304-B IPC exception is made a deeming provision nature "dowry death" husband relative, deemed caused death, absence evidence aspects be, proving existence ingredients offence convincing evidence. Under Section 4 14 Act Evidence Act whenever directed Court presume fact, record proved unless disproved. The Court option presume accused caused unless accused disproved it. It a statutory compulsion Court. However, accused adduce evidence disproving compulsory presumption burden unmistakably discharge burden either eliciting answers through cross-examination witnesses prosecution adducing evidence defence Section 113-B Evidence Act relevant examining charge under Section 304-B of IPC as the said Section deals with the presumption as to the dowry death.

8. In the instant case it would be necessary to examine whether accused responsible Hasina in mind conjoint reading Section 113-B Evidence Act Section 304-B IPC states there must be material before victim subjected cruelty harassment. The prosecution 15 possibility natural accidental within purview "occurring otherwise normal circumstances". The expression "soon before" relevant Section 113-B Evidence Act Section 304-B IPC pressed service. As earlier, prosecution proved Hasina neither natural accidental. The Court rightly disbelieved evidence PW 8 PW 10 - Abubakr, having regards - Hawabi depositions PW 12 - I.O. cross-examination. However, evidence PW 4, PW 6, PW 7 PW 9 clearly Hasina married accused - Mustafa 26/1/1989, thereafter harassment torture demand Rs.5000/- ornaments started accused before 23/8/1989, witnesses specific instances Hasina harassment, torture ill-treatment accused including accused - Mustafa 18/8/1989 presence PW 6 PW 7 presence witnesses. The harassment, torture ill-treatment caused deceased account demand Rs.5000/- ornaments. Hasina 16 matrimonial evidence prosecution a beyond reasonable believe midnight company Mustafa. As record, matrimonial separate bed-rooms members relevant i.e. Hasina accused. Before Court, defence a FIR lodged inordinate discarded Court ground that the FIR was lodged at about 9.50 p.m. on 23/8/1989 itself by PW 4

9. On the point of sentence, the trial Court awarded sentence RI offence punishable Section 304-B IPC declined lenient awarding sentence offence punishable Section 498-A IPC. There appeal State enhancement sentence charges and, therefore, I satisfied conviction sentence passed by the trial Court and impugned in this appeal deserves to be confirmed. 17

10. In the premises, the appeal stands abated, so appellant nos.2 3 (accused nos.2 3) concerned. The appeal dismissed 1 conviction sentence passed against accused no. - Mustafa Shahadal Shaikh learned 4th Addl. Sessions Judge Kolhapur Sessions Case No.7 1990 hereby confirmed. Accused - Mustafa surrender forthwith undergo sentence entitled off, any, Section 428 of Cr.P.C. The bail of accused no.1 granted earlier stands cancelled. (B.H.MARLAPALLE,J.)