Illyas and others vs State of Haryana

M.L. Koul, J.

On trial the learned Sessions Judge Gurgaon, found and held that the deceased Rashidan wife of appellant Aasu was killed by strangulation in the Chobara of the appellants'' (hereinafter referred to as the accused) house in early hours of 16.8.1993 and for that the accused Illyas, Aashu and Smt. Palli have been found guilty of an offence under Section 302/34 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay a fine of Rs. 500/ each. In default of payment of fine each of them was ordered to undergo further rigorous imprisonment for six months.

The brief facts of the case on which all the accused stood convicted and sentenced as mentioned above are that on 16.8.1993 the dead body of the deceased Rashidan was found hanging in the Chobara of accused''s house. No report was lodged by the accused with regard to the hanging of the deceased till her father in the evening made a statement with PW 7 Naveen Kumar, Sub Inspector that due to nonfulfilment of dowry demands and as the deceased was not bearing any child she was done away by the accused. On completion of the investigation the accused were challaned before a competent Court of law.

Heard Mr. Baldev Singh, learned counsel for the accused and Mr. S.N. Gour, Deputy Advocate General, Haryana, also had a thoughtful consideration over the record on the file.

The main witnesses examined in this case such as PW 3 Fajar, father of the deceased, PW 4 Fateh Mohammad and PW 5 Nizam Mohammad with regard to her murder and demand of dowry by the accused have turned hostile.

PW 3 Fajar, father of the deceased deposed that his daughter never complained to him about any torture or maltreatment by the accused on account of less dowry and that the report about her death was lodged on the basis of suspicion. He also did not conceal the fact that his daughter did not bear a child for five years after her marriage and she on that reason was sore to herself. PW 4 Fateh Mohammad stated that they did not know or could not learn in the village as to how the deceased died. PW 5 Nizam Mohammad deposed that it never came to his knowledge that the deceased was being tortured for dowry by the accused and that he never saw the deceased being strangulated by the accused.

The only evidence on the basis of which the learned trial Court convicted and sentenced the accused is that of Dr. M.S. Ranga PW 2 who has opined that the death of the deceased was as a result of ligature mark on the neck which was ante mortem in nature and sufficient to cause her death in the ordinary course of nature.

The learned trial Court has fallen in error in holding that in the circumstances of the case as the death of a young lady has taken place in the house of the accused and the same was homicidal in nature, therefore, it in itself is a proof that the deceased was hanged by the accused when no body except the accused lived in the house. He further observed that there is no proof available on the file as to who took away the dead body down from the roof where it was found hanging. When according to the accused she died due to an unnatural death which came to their knowledge in the morning why they did not lodge a report with the police till her father came in the evening at 6 p.m. and lodged the report with the police.

The learned trial Court has based his judgment on assumptions. What a burden of proof was to be discharged by the prosecution by leading evidence as to how the occurrence took place and the dead body was lying in the Chobara, the trial Court asked the accused to discharge that liability as to how she died. Once the father of the deceased and his relatives examined in the case have ruled out that it was a dowry death case and she was tourtured to commit suicide, it was the foremost duty of the prosecution to prove that the case was governed by the provisions of Section 300 of the Indian Penal Code squarely to hold the accused guilty for an offence under Section 302 of the Indian Penal Code.

In this regard once the accused have been convicted and sentenced for an offence under Section 302/34 IPC the prosecution could not be exempted by the trial Court to prove the case against the accused on circumstantial evidence that it were the accused and the accused alone who committed the murder of the deceased. No circumstantial evidence like the disclosure statement, recovery of weapon of offence, any dying declaration or extra judicial confession is available on the file on the basis of which the trial Court could come to the conclusion that the crime was committed by the accused. The case falls within the definition of death by strangulation and it is nowhere proved whether the deceased was strangulated to death by the accused, somebody else or she committed suicide.

It is well established that in a case based on circumstantial evidence the motive has to play an important role. In the present case no evidence is available on the file against the accused that they have committed the murder of the deceased on some motive. There was no motive on the part of the accused to commit the murder of the deceased who was being well maintained by them in their house and was living a normal household life with her husband accused Aashu. It has been held by the Apex Court in 1994(3) RCR 606 that the medical evidence is inconclusive and it is highly unsafe to sustain the conviction on the basis of circumstantial evidence of this nature.

There is no connecting evidence against the accused especially the motive pleaded and established by the prosecution that the accused committed the murder of the deceased. Thus there was no evidence available before the trial Court to convict and sentence the accused for an offence under Section 302/34 IPC. The accused have already undergone unnecessary turmoil and trial without any evidence against them. Hence the prosecution has failed to establish its case against the accused.

In view of the above discussion the appeal is allowed, the order of conviction and sentence passed against the accused is set aside and they are acquitted of the charges framed against them. They are ordered to be discharged forthwith from the jail if not already on bail.