Sadat @ Sadat Ali v. State by Inspector of Police Vellore North, Law and Order Vellore District

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.10.2009CORAM:THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESANCrl.A.No.791/2002Cr.MP.No.4957/20021.Sadat @ Sadat Ali2.Fazil3.Regana ..AppellantsVs.State by Inspector of Police Vellore North, Law and OrderVellore District ..RespondentPrayer:- This Criminal Appeal is filed against the judgement of thelearned Additional District and Sessions Judge, Vellore District atVellore (FTC) passed in SC.No.112/1998 dated 17.5.2002, convictingthe Appellants for the offences under Section 304(B) of IPC andsentencing them to undergo seven years Rigorous Imprisonment.For Appellant :Mr.K.S.RajagopalanFor Respondent :Mr.Hasan Mohammed Jinnah, APP JUDGEMENT This Criminal Appeal is filed against the judgement passed bythe learned Additional District and Sessions Judge, Vellore inSC.No.112/1998 dated 17.5.2002, convicting the Appellants/A1 to A3herein for offence punishable under Section 304(B) of IPC andsentencing each of them to undergo seven years Rigorous Imprisonment.2. The case of the Prosecution is as follows:-A1 is the husband of the deceased Sardaz. A2 and A3 are theelder sister and brother of A1. Alla Baksh, PW.2, who is the fatherof the deceased, gave his daughter Sardaz @ Nooruaashmi in marriageto the 1st accused nearly four years prior to 8.11.1994 as per theMuslim Customs and Traditions. The marriage was performed with theconsent of both the families and on the marriage, PW.2 presented agold chain weighing 2 sovereigns, a ring weighing one sovereign tothe 1st accused and a necklace weighing four sovereigns and an earstud weighing 2 sovereigns to his daughter along with the household https://hcservices.ecourts.gov.in/hcservices/ articles and also a cash of Rs.5000/-. After the marriage, thedeceased Sardaz lived with her husband/A1 and his sister andbrother/A2 and A3 jointly. Within six months from the date of hermarriage, A2 and A3 compelled the deceased to get money from herparents and as she was unable to meet their demand, she had come toher parent's house. 3. In the mean while, A1 went to Saudi Arabia withoutinforming the deceased and he was working there. In his absence, A2and A3 prevented the deceased from entering into her matrimonial homewithout the jewels. Thereafter, PW.2 sent his daughter with jewels.In the absence of A1, A2 and A3 had threatened the deceased andharassed her in every way and forced her to part with the jewels anddisposed of the same either pledging or selling away and spent awaythe money. After two years, A1 returned from Saudi Arabia andstarted a tailoring shop, but there was no sufficient income. Hence,A1 again decided to go to Saudi Arabia, for which he needed money anddemanded the deceased to get Rs.10,000/- from her father. 4. It is stated by the mother of the deceased/PW.3 that thedeceased told them not to give money to her husband, because he hadnot earned any money while he was working in Saudi Arabia. Sincethere was persistent demand from A1 to get money from her parents,the deceased complained to the Janath Muthavalli asking him to talkto the parents on both sides to ensure their joint living. Onconsidering the pathetic situation, PW.2 rented a house and providednecessary facilities for the joint living of his daughter with A1.According to PW.3, in spite of the said arrangement, there wasconsistent demand from A1 for Rs.10,000/-, which made the deceased tocommit suicide. On 8.11.1994 at 11.00 p.m. she poured kerosine uponher and set fire to herself. On hearing her alarm PW.1, who is theneighbour rushed to the spot along with A1 and after extinguishingthe fire, took her to the Government Hospital at Vellore. PW.1enquired her as to why she had taken such an extreme step and thedeceased told him that her husband harassed her by demanding dowryand therefore, she committed suicide. 5. PW.11, Dr.Dayalan attached to the Government Hospital,Vellore admitted the deceased for treatment on 8.11.1994 at about10.45 p.m. and found 90% burn injuries on her and intimated the sameto the police under Ex.P8 and on receipt of such intimation, PW.8Head Constable reached the PS-II Ward of the said Hospital, in whichthe deceased was admitted and recorded her statement at 12.30 p.munder Ex.P9 in the presence of her parents. On the basis of Ex.P9,PW4, Sub Inspector of Police, Vellore North Police Station hadregistered a case in Cr.No.1016/1994 under Section 498A of IPC underEx.P15. https://hcservices.ecourts.gov.in/hcservices/

6. PW.15, the Inspector of Police took up investigation andwent to the place of occurrence and prepared observation magazarunder Ex.P4 in the presence of Ayub Khan and Syed Khan and a roughsketch under Ex.P16 and recorded the statements of PW.2 and 3 in thepresence of PW.1 neighbour and another and seized material objectsviz. plastic can MO.1, a piece of burned cloth MO.2 and a match boxMO.3 under Ex.P5. 7. On 9.11.1994 at 1.00 a.m the duty Medical Officer sent anintimation under Ex.P10 to the learned Magistrate to record thedying declaration of the deceased. The dying declaration was recordedby PW.10, the then learned Judicial Magistrate IV, Vellore underEx.P11. 8. On 11.11.1994 at 2.30 p.m. PW.15 arrested all the threeaccused and sent them for remand under Ex.P18 and later they wereenlarged on bail. 9. On 3.12.1994, PW.15 examined the former Muthavalli AbdulKafar as PW.7, and Alla Baksh, Rahman and secured letters underExs.P2, 3, 7 and 6 written by the deceased Sardaz to the Jamath andthe Wedding Invitation under Ex.P1 and recorded their statements.PW.15 also examined Grade I Police Constable Janardhani as PW.13, whohanded over the body of the deceased for postmortem to the GovernmentHospital, Vellore along with a letter of request from RevenueDivisional Officer. Postmortem was done by a team of doctorsincluding PW.2 Dr.Chandra and Dr.Bharani.10. The Postmortem Certificate Ex.P14 reveals thus:-"Regarding the body of a female aged about 26 years, namedSardaz.Requisition received at 12.55 p.m. on 16.11.1994 from theSub Divisional Executive Magistrate, Revenue DivisionalOfficer, Vellore, with his Crime o.1016/94 dated 16.11.94.Body in charge of Police Constable NO.3080 namedTmt.Janarthani.Identification and caste mark:1. Could not be identified due to extensive burns.The body was first seen by the undersigned at 2.10 p.m. on16.11.1994.Its condition then was Rigor mortis present all the 4limbs. https://hcservices.ecourts.gov.in/hcservices/ Post Mortem commenced at 2.10 p.m. on 16.11.1994Appearance found at the post mortem:-The general appearance of the body of a female identifiedby the ICPC (?) do agree with the police report.Examination second degree burns web areas of shock allover the body except scalp report of both soles. Tongueswithin the mouth. Heart 300 grams Right Lung 300 grams,Left Lung 300 grams congested.Hyoid Bone intact.Stomach contains brown colour liquid about 100m.Liver 90 grams congested.Spleen 100 grams congested.Kindneys 150 grams each congested.Bladder empty.Uterus Normal size empty.Brain 900 grams congested.Postmortem concluded at 3.10 p.m. on 16.11.1994. Thedeceased would appear to have died about 12-18 hours priorto post mortem due to Ephicaemae. Due to external burns."11. In the meanwhile, PW.15 received an intimation on16.11.1994 that the deceased died on 15.11.1994 in the night hoursand he recorded the statement of the Doctor and the Head Constable,who registered the FIR and also the Sub Inspector of Police and thecase was altered into one under Section 304B of IPC. Since the casewas altered into one under Section 304B of IPC, the DeputySuperintendent of Police, Vellore had taken investigation andverified the investigation done by the Inspector of Police, which wasfound to be in order.12. After the alteration of the offence, they had beenarrested on 16.11.1994 under arrest card Ex.P20 and they were sentfor remand under Ex.P21. He recorded the statement of the Doctors,who conducted postmortem and from him, PW.17 Sivaprakasam took up theinvestigation and he had obtained inquest report Ex.P23 and aftercompleting the investigation, charge sheet against all the threeaccused was laid under Section 304B of IPC.13. To establish the case of the Prosecution, 17 witnesseshave been examined and Ex.P1 to P23 and MO.1 to MO.3 were marked. Oncompletion of evidence, in order to give an opportunity to theaccused, they were questioned under Section 313 of Cr.P.C as to theincriminating circumstances found in the evidence of the prosecution https://hcservices.ecourts.gov.in/hcservices/ witnesses and the accused flatly denied the same as false and nowitnesses have been examined on the side of the appellants.14. Mr.K.S.Rajagopalan, the learned counsel for theAppellants contended that the Prosecution miserably failed toestablish that the deceased was subjected to cruelty on the crucialday or at any time immediately before the occurrence and there isabsolutely no acceptable evidence to show that any of theAppellants/accused herein made a demand of dowry soon before thedeath of the deceased. He would submit referring to the evidence ofPW.2 the father of the deceased that the 1st Appellant had not madeany demand of dowry. The learned Magistrate who recorded the dyingdeclaration has not stated or certified that the deceased was in afit state of mind to speak in the light of the evidence of PW.11.Dr.Dayalan, who admitted the deceased in the Government Hospital,Vellore had spoken to the fact that the patient's generalconsciousness was poor and found drowsy.15. The learned counsel for the Appellants drew the attentionof this court to the evidence elicited during the cross examinationof the Doctor PW.11 that he cannot say without seeing the case sheetas to whether the deceased was in an unconscious state till her deathor regained consciousness. He would submit that in the absence ofcase sheet being produced before the court, it cannot be said thatthe deceased was in a fit mental condition at the time of recordingof dying declaration.16. The learned counsel pointed out to Exs.P2, P6 and P7 dated19.6.1994 addressed to the Muthavalli more specifically Ex.P6 whichwas written six months prior to the suicide committed by thedeceased, wherein she has asserted that her husband was the onlyperson looking after her in the advanced stage of the pregnancy asher parents had disowned her and further it is her definite statementthat her husband requested her to get a sum of Rs.20,000/ as a loanfrom her father and nowhere she has whispered that her husband everill treated her or put her into harassment demanding money or jewels.He would submit that the contradictions and discrepancies in theevidence of PW.3 are vital and they merit consideration as the courtcan infer improvements and embellishments on a bare perusal of herevidence. The learned counsel further submitted that PW.2, thefather of the deceased in his evidence has given a definite versionthat the 1st Appellant never demanded any money either at the timewhen he left for Saudi Arabia or at a later point of time when heexpressed his intention to go to Saudi Arabia to earn his livelihood. 17. On the contrary, Mr.Hasan Mohammed Jinnah, the learnedAdditional Public Prosecutor for the Respondent supported thejudgement of the court below, placing reliance on the dyingdeclaration of the deceased especially the one given to the learnedMagistrate which according to him does not suffer from any infirmity. https://hcservices.ecourts.gov.in/hcservices/

18. As per the case of the Prosecution, the occurrence issaid to have taken place on 8.11.1994 at about 10.30 p.m. at theresidence of her husband. The Prosecution strongly relied on theevidence of PWs.1 to 3, the dying declaration Ex.P11 given to thedeceased to PW.10, the learned Judicial Magistrate V, Vellore, Ex.P9the statement given by the deceased at 12.30 night on 8.11.1994 toPW.8, the Head Constable attached to Vellore South Police Station andthe oral statements said to have been made by the deceased to PWs.1to 3.19. On a careful perusal of the evidence of PW.2, in thelight of version made by him in his chief examination, it is apparentthat he is the person who knows about the entire episode of events.The testimony of PW.3 stands thoroughly discredited as it is full ofimprovements and is not consistent with the statement given to thePolice. She has made deliberate improvements and there is amaterial contradiction even regarding the oral declaration allegedlymade by the deceased to PWs.2 and 3, which affects her entirecredibility. For instance, PW.2 would state that when they enquiredthe deceased as to why she had set fire to herself, the deceased hadreplied to them as below:-"vt;tst[jhd; eP';fs; bfhLg;gPh;fs;/ vt;tst[jhd; ehd;bghWj;Jf;bfhs;ntd;/ vdf;F ntW tHp bjhpatpy;iy/ ehd; jPitj;JbfhSj;jpf;bfhz;nld; vd;W brhd;dhs;/@Whereas PW.3 would give a different version as to the statement madeby the deceased as below:-@vd; ehj;jdhUk;. K:j;jhUk; vd; fzthplk; brhd;djhy; vd;Dilag[Uc&d; vd;id mof;fpwhh; vd;W vd; kfs; vd;dplk; Twpdhh;fs;/mjdhy; ehnd Cw;wpf;bfhz;nld; vd vd; kfs; Twpdhs;@/20. It is not the case of the Prosecution that at theinstigation of A2 and A3, A1 beat her and that is why she immolatedherself. She has stated that when the deceased was residing withthem at their residence, A1 demanded the jewels which is again notthe case of the Prosecution. Again for sending the 1st accused toSaudi Arabia, A2 and A3 demanded the deceased to get money from Pw.2and PW.3 which according to her was disclosed by the deceased,whereas PW.2 has categorically stated that the 1st accused neverdemanded money from him after their marriage and in fact, he woulddepose that till A1 returned from Saudi Arabia, no problem had arisenwith regard to money or jewels. He had further deposed that evenwhen A1 was taking efforts to go to Saudi Arabia for the second time,he did not demand financial help from him. It is his categoricalversion that even for the first trip to Saudi Arabia, A1 had takenmoney from some one and never demanded any money. https://hcservices.ecourts.gov.in/hcservices/

21. Admittedly, six months prior to her death, A1 and thedeceased had set up a separate living arrangement and there is noevidence that A2 and A3 have ever visited them after their separateestablishment and demanded money or instigated A1 to make such demandnor there is any specific instance wherein A1 to A3 have causedharassment to the deceased or A2 and A3 instigated A1 to demand anymoney. On a close scrutiny of the testimony of PW.2 and 3, it doesnot spell out any circumstances to show that there was any cruelty orharassment in connection with the demand of dowry soon before herdeath.22. In the case of Biswajit Halder alias Babu Halder andothers Vs. State of WB [2008-1-SCC-Cri-172], the Honourable SupremeCourt has held that the deficiency in evidence regarding any crueltyor harassment in connection with the demand of dowry would provefatal for the case of the Prosecution and that apart, mere evidenceof cruelty and harassment is not sufficient to bring in applicationof Section 304B of IPC and in addition, it has to be shown that suchcruelty or harassment was in connection with the demand for dowry.23. The Honourable Supreme Court in the case of KameshPanjiyar Vs. State of Bihar [2005-2-LW-Crl-794] has held thatdetermination of the period which can come within the term 'soonbefore' is left to be determined by the Courts, depending upon factsand circumstances of each case. But, however, the Honourable SupremeCourt indicated in the decision stated supra that 'soon before' wouldnormally imply that the interval should not be much between theconcerned cruelty or harassment and the death in question. TheirLordships held as follows:-"15. A conjoint reading of Section 113B of the EvidenceAct and Section 304B of IPC shows that there must bematerial to show that soon before her death, the victimwas subjected to cruelty or harassment. Prosecution hasto rule out the possibility of a natural or accidentaldeath so as to bring it within the purview of the 'deathoccurring otherwise than in normal circumstances'. Theexpression 'soon before' is very relevant where Section113B of the Evidence Act and Section 304B IPC are pressedinto service. Prosecution is obliged to show that soonbefore the occurrence there was cruelty or harassment andonly in that case presumption operates. Evidence in thatregard has to be led by Prosecution. 'Soon before' is arelative term and it would depend upon circumstances ofeach case and no strait jacket formula can be laid down asto what would constitute a period of soon before theoccurrence. It would be hazardous to indicate any fixedperiod, and that brings in the importance of a proximitytest both for the proof of an offence of dowry death aswell as for raising a presumption under Section 113B of https://hcservices.ecourts.gov.in/hcservices/ Evidence Act. The expression 'soon before her death' usedin the substantive Section 304B IPC and Section 113B ofthe Evidence Act is present with the idea of proximitytest. No definite period has been indicated and theexpression 'soon before' is not defined. A reference toexpression 'soon before' used in Section 114.Illustration (a) of the Evidence Act is relevant. It laysdown that a Court may presume that a man who is in thepossession of goods soon after the theft, is either thethief has received the goods knowing them to be stolen,unless he can account for his possession. Thedetermination of the period which can come within the term'soon before' is left to be determined by the Courts,depending upon facts and circumstances of each case.Suffice, however to indicate that the expression 'soonbefore' would normally imply that the interval should notbe much between the concerned cruelty or harassment andthe death in question. There must be existence of aproximate and live link between the effects of crueltybased on dowry demand and the concerned death. If allegedincident of cruelty is remote in time and has become staleenough not to disturb mental equilibrium of the womanconcerned, it would be of no consequence.16. Consequences of cruelty which are likely to drive awoman to commit suicide or to cause grave injury or dangerto life, limb or health, whether mental or physical of thewoman is required to be established in order to bring homethe application of Section 498A IPC. Cruelty has beendefined in the Explanation for the purpose of Section498A. Substantive section 498A IPC and presumptiveSection 113A of the Evidence Act have been inserted in therespective statutes by Criminal Law (Second Amendment)Act, 1983. It is to be noted that Sections 304B and 498AIPC cannot be held to be mutually inclusive. Theseprovisions deal with two distinct offences. It is truethat cruelty is a common essential to both the Sectionsand that has to be proved. The Explanation to Section498A gives the meaning of 'cruelty'. In Section 304Bthere is no such explanation about the meaning of'cruelty'. But having regard to common background tothese offences it has to be taken that the meaning of'cruelty' or 'harassment' is the same as prescribed in theExplanation to Section 498A under which 'cruelty' byitself amounts to an offence. Under Section 304B it is'dowry death' that is punishable and such death shouldhave occurred within seven years of marriage. No suchperiod is mentioned in Section 498A. If the case isestablished there can be a conviction under both thesections. (See Akula Ravinder and others Vs. The State of https://hcservices.ecourts.gov.in/hcservices/ Andhra Pradesh [AIR-1991-SC-1142]. Period of operation ofSection 113B of the Evidence Act is seven years,presumption arises when a woman committed suicide within aperiod of seven years from the date of marriage."24. Therefore, in view of the above said settled principle oflaw laid down by the Honourable Supreme Court in respect of the caseunder Section 304B of IPC, the Prosecution is bound to prove theexistence of a proximate and live-link between the effects of crueltybased on dowry demand and the concerned death. The evidence of PW.2shows that there was no complaint whatsoever as the deceased has notvisited the house of PW.2 after separate establishment nor the 1staccused demanded any money from PW.2 directly and therefore, it iscrystal clear that there is absolutely no materials available onrecord to the effect that soon before her heath, the deceased wassubjected to cruel treatment, which drove her to take the extremestep of putting an end to her life. 25. The other evidence that was strongly relied upon by theProsecution is Ex.P11 the dying declaration recorded by PW.10 thelearned Magistrate on 9.11.1994 at about 1.05 a.m. For placingreliance over the dying declaration, a strict screening of thestatement is required to be made, because it is not a statement onoath and its veracity cannot be tested by cross examination. Itshould therefore be ensured that the dying declaration made by thedeceased is of such a nature as to inspire confidence of the courtregarding its correctness and further that it is not a result oftutoring or prompting. It should also be proved by the testimony ofthe learned Magistrate that the declarant was fit to make thestatement and even without examination by the Doctor, the declarationcan be acted upon. A certification by the Doctor is essentially arule of caution and therefore, the voluntary and truthful nature ofthe declaration can be established otherwise.26. When the declarant is inpatient in the Hospital, it isthe duty of the learned Magistrate to record the dying declarationin the presence of the Doctor after duly certified by him that thedeclarant was conscious and in a fit condition to make thedeclaration. In this case, there is nothing to indicate that thelearned Magistrate has satisfied himself by putting some questionsto the deceased that she was in a fit state of mind. Undoubtedly, itis essential to show that the dying declaration was made when themaker was in a fit state of mind to make such a declaration.27. In this case, sufficient doubt is thrown on the physicalcondition of the deceased more particularly in the light of evidenceof PW.11 Dr.Dayalan who has stated that she was found drowsy andgeneral consciousness was poor thereby meaning that she was notconscious. She had sustained 90% of burn injuries on face, chest andother vital parts. The said Doctor has admitted that he has not https://hcservices.ecourts.gov.in/hcservices/ noted the pulse rate in the Accident Register. He has stated thatonly on seeing the case sheet, it can be said as to whether she diedin an unconscious state or regained consciousness. But the casesheet has not been filed before the trial court. It was not statedin the dying declaration that the contents were read over to thedeceased who admitted its correctness. In such circumstances, theDoctor who is said to be present at the time of recording of dyingdeclaration is the only competent witness to speak about her abilityto speak at the time of recording of dying declaration. The sameapplies to the statement Ex.P9 recorded by the Head Constable at12.30 p.m. on 9.11.1994. In the said physical condition of thedeceased, it is highly doubtful that the statement contained in Ex.P9is the actual words used by the deceased in describing the incident.In the absence of any material or evidence to show that the deceasedregained consciousness sometime later and was in fit state of mind tospeak, the dying declarations recorded by the learned JudicialMagistrate and the Head Constable become doubtful and cannot besolely relied upon.28. That apart, the oral statements made to PW.1 to PW.3 notonly gave two conflicting versions, but also in consistent with eachother. In this case, there are more than one dying declaration andthey are inconsistent with each other in material particulars. It isno doubt true that the deceased who was in a great stress and mentalagony as she had suffered extensive burns is bound to commit suchomission or addition to each of the witness in the narration, but notin material part of the incident. Keeping in view the cumulativeeffect of the circumstances the dying declarations without examiningthe Doctor who had certified regarding the mental condition of thedeceased cannot be acted upon. In view of the above said reasons, Iam of the considered view that the Prosecution has failed to bringhome the guilt of the accused beyond reasonable doubt.29. For the reasons stated above, this court is left with noother alternative except to allow the appeal and to set aside theconviction and sentence imposed upon the appellants by the courtbelow. Accordingly, this Criminal Appeal is allowed. The convictionand sentence imposed upon the Appellants by the learned AdditionalDistrict and Sessions Judge, Vellore District at Vellore (FTC) inSC.No.112/1998 dated 17.5.2002 are set aside. The bail bond executedby the appellants shall stand canceled. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarSrcm https://hcservices.ecourts.gov.in/hcservices/ To1. The Additional District & Sessions Judge, (Fast Track Court), Vellore, Vellore District.2. -do- Through The Principal Sessions Judge, Vellore.3. The Judicial Magistrate No.IV, Vellore.4. -do- Through The Chief Judicial Magistrate, Vellore District.5. The District Collector, Vellore District.6. The Deputy Inspector General, Mylapore, Chennai.7. The Superintendent, Central Prison, Vellore.8. The Inspector of Police, Vellore North, Law & Order, Vellore District.9. The Public Prosecutor, High Court, Madras.+ 1 c.c. to Mr. K.S. Rajagopalan, Advocate. S.R.No.56372. Order in Crl.A.No.791/2002MRD (CO)GSK 29.10.2009.