Sk. Haroon and Others vs State of Bihar

Shiva Kirti Singh and Shailesh Kumar Sinha, JJ.—This appeal arises out of judgment and order under appeal dated 24.12.2002 passed by Additional District & Sessions Judge, IInd, Katihar in Sessions Trial No. 33 of 2001/190 of 1993 arising out of Azamnagar P.S. Case No. 16/ 1992 whereby all the three appellants have been convicted for the offence, u/s 302 read with Section 34 of the Indian Penal Code and awarded life imprisonment. The prosecution case is based upon the statement in the FIR lodged by PW-10, Sk. Abdul Rajjak, father of the deceased, Munsera Khatoon who was wife of appellant No. 1, Sk. Haroon. Appellant No. 2, Abdul Sattar and appellant No. 3, Sk. Laloo are father and cousin brother of appellant no. 1. The prosecution case in short is that the deceased aged about 22 years was married to appellant No. 1 about four years earlier and she had a daughter aged about one and a half years who was born in the house of the informant. Thereafter the deceased went to her matrimonial house and stayed for about one month. During that period relation between her and her husband and other family members was not cordial. She came to the informant''s house to attend marriage of her brother. After the marriage the informant was ready to send the deceased with her husband but her husband, appellant No. 1 did not agree in spite of advice of his father and mother. The deceased also was reluctant to go with the husband and expressed her views that when her husband and other family members do not like her then there was no point in her going to the matrimonial home. The deceased stayed at her father''s house for sometime and then a Panchayati was convened and on account of a decision in the Panchayati 4-5 days earlier to the occurrence, on last Monday, appellant No. 1 came to informant''s house alongwith appellant No. 3 and she went with her husband and all her belongings to her matrimonial house because in the Panchayati it was agreed that she would be kept properly and not subjected to any wrong behaviour in her matrimonial house. On Thursday i.e. 23.1.1992 the informant had a chance meeting with appellant No. 2 in a Hat and he was informed that her daughter is alright. In the evening when he came to his house he met appellant No. 3 who was sitting with son and another son-in-law of the informant. Appellant No. 3 also informed that his daughter was alright and there was nothing to worry and it would be better if informant would come to see her after 2 to 4 days. Appellant No. 3 went away. On Friday i.e. 24.1.1992 at about 7:00 in the morning the informant learnt from his saarhu, Sk. Khabir resident of Kaliganj that his daughter, Munsera Khatoon has been killed by her in-laws. The informant proceeded to village, Nepra where the occurrence had taken place and soon his other family members also arrived there. Several people from village, Kaliganj, Maheshpur and Nepra had assembled there. The informant saw the dead body and noticed an injury near the right eye as well as swelling and scratches on the neck. He also noticed night soil in the petticoat of the deceased. In the FIR it was alleged by the informant that the deceased was not liked by her husband and his family members and with a view to get money through another marriage the deceased had been killed by strangulation. Besides the three appellants the informant also blamed Raushan Khatoon and Arjoo Khatoon, wife and daughter respectively of appellant No. 2 for the offence.

From Exhibit-2, the FIR, it appears that it was recorded on 24.1.1992 at 11:00 A.M. in the Police Station. The investigation was conducted by PW-13, Sub-Inspector of Police, Anil Kumar. He inspected the place of occurrence which was house of the accused persons in village, Nepra. The dead body was in the house on a chauki. According to the I.O. the deceased had slept in the same room alongwith her child and husband. From the place of occurrence he also seized a piece of cloth having blood stains. After preparing inquest report of the dead body he sent the same for post mortem examination to Kishanganj. After arresting the accused and recording the statement of witnesses he submitted first charge-sheet only against appellant No. 1 and thereafter another charge-sheet against the remaining two appellants. After cognizance the case of all the three appellants was committed to the court of sessions. The accused pleaded not guilty to the charges and were put on trial. They were convicted and sentenced by the judgment and order under appeal, as noticed earlier.

The defence appears to be general denial of the allegations and that the prosecution has failed to prove the charges beyond reasonable doubt. There is no counter version as to how the deceased 4 died in her matrimonial house where she was living with her child and husband in a separate room. No defence witness has been examined nor have the appellants given any explanation regarding killing of the deceased in their statement u/s 313 Cr.P.C.

The prosecution in order to prove its case has examined altogether 13 witnesses. PW-1, Sarful Hoda, PW-8, Mobid Hussain, PW-10, Sheikh Abdul, Rajjak, the informant and PW-11, Md. Sagir are the only material witnesses available to the prosecution besides PW-7, Dl Mahendra Pratap Singh who conducted autopsy and has proved the post mortem report as Exhibit-i and PW-13, Anil Kumar the Investigating Officer. PW-2, Rafique. PW-3, Manjur Alam and PW-6, Noor Atam have been declared hostile. PW-4, Sk. Saidur Rahman, PW-5, Sabiruddin, PW-9, Sk. Hakimuddin and PW-12, Putli Khatoon have been simply tendered by the prosecution for cross-examination.

PW-1, Sarful Hoda is a resident from a neighbouring village, Kaliganj. On hearing news of the occurrence he went to the house of accused persons in village Nepra and saw her dead body in the house of her husband. He noticed some injury near eye and on the small finger of the deceased. He has deposed that from the house of appellant No. 1 a piece of cloth was seized and it was having blood mark. He has claimed that he has signed on the seizure list The defence in cross-examination of this witness has not challenged that the dead body was kept in the house of appellant No. 1 and had some injuries. Seizure of a piece of cloth has also not been challenged. PW-8, Mobid Hussain is a co-villager of the informant. On receiving news of murder of her daughter in her matrimonial house the informant requested this witness to go with him to village Nepra and therefore he accompanied the informant and saw the dead body. He noticed injury near the right eye as well as on the neck. He also claimed to have seen the clothes of the deceased soiled with night soil. He further stated in chief that deceased was not property treated in her Sasurai and he learnt in the village that she had been killed by her husband On the request of the defence the cross-examination of this witness was deterred on 4.5.1996 and thereafter he could be cross-examined only on 27.7.1996. On that date ho stated in cross-examination that husband and wife used to live cordially

PW-10, the informant has fully supported the prosecution case as disclosed in the FIR. He has fully withstood the test of cross-examination. Although the details of Panchayati have been elicited from this witness in cross-examination but on careful perusal of the entire cross-examination it is clear that the defence has not suggested that there was no Panchayati as alleged by the informant in the FIR and in his deposition in court. PW-11, Md. Sagir is a resident of village Nepra. He has deposed that he learnt about the death of the deceased and he also had learnt that appellant No. 1 had brought the deceased, Munsera Khatoon to his house after a verdict in Panchayati. However, he has admitted that he had no personal knowledge of these facts and had only heard such facts from others.

PW-7, Dr. Mahendra Pratap Singh has proved the post mortem examination report relating to the deceased and it is established from the medical evidence that the deceased had suffered several abrasions and swelling on the neck besides laceration on right eyelid, left small finger and at six places on right elbow and right forearm. On dissection, the doctor found thyroid cartilage and two tracheal rings fractured. Larynx and trachea were highly congested. On the basis of his finding the doctor opined that the death was due to asphyxia as a result of strangulation. The time elapsed since death was within 48 hours of holding of the post mortem which was conducted on 25.1.1992 at 9:00 A.M. Thus, the medical evidence supports the prosecution case of killing of the deceased by strangulation and it also shows that some minor assault etc. had taken place before strangulation.

PW-13, S.I.. Anil Kumar has given details of what he found at the place of occurrence and according to him the deceased was found on the chauki in the room which was said to be the place where the deceased had slept with her child and husband. With respect to hostile witness, PW-2, Rafique the I.O. has confirmed the suggestion of the prosecution to this witness that before the I.O. he had stated that appellant No. 1, Haroon was not having good relations with his wife and he used to regularly torture and assault her. He had also stated that appellant No. 1 had brought the deceased, his wife to his house after a Panchayati. The I.O. was not cross-examined because the defence refused to do so. Hence there is no reason to doubt the findings and statements of the I.O. made in the court.

The aforesaid materials show that there is no eye witness of the alleged occurrence and the prosecution case is based upon circumstantial evidence. On a careful reading of the prosecution case as given in the FIR and the evidence of the informant and PWs-1, 8 and 11 as well as from the entire circumstances it is found that the prosecution has established the following circumstances:-

(i) The deceased was strangulated to death in her matrimonial house.

(ii) She was living with her husband and an infant child in a room in the matrimonial house at the time of her death.

(iii) She was not liked by her husband, the appellant No. 1 and their relationship was strained.

(iv) The deceased had recently gone to live again with her husband after intervention of Punches in Panchayati.

(v) The husband, appellant No. 1 has failed to give any explanation as to how the deceased got killed inside his house in the night between 23rd and 24th January, 1992 when he is the person who in normal circumstance will have special knowledge regarding such happening to his wife inside the house.

(vi) No counter version to suggest a reasonable explanation of murder of the deceased by any outsider has been given by the defence.

In the aforesaid incriminating circumstances available against appellant No. 1, Sk. Haroon, the husband of the deceased, we find ourselves in agreement with the trial court that the prosecution has succeeded in establishing the charge u/s 302/34 of the Indian Penal Code against him. However, we find ourselves unable to accept the finding of guilt in respect of appellant No. 2, Abdul Sattar and appellant No. 3, Sk. Laloo because there is no material to show that in the fateful night they had entered the room of the deceased so that they could have helped appellant No. 1 in the crime. Further, there is no material to show that they had strained relationship with the deceased so as to go to the extent of participating in her murder. The reason for the offence is clear that the deceased was not liked by her husband. When the relationship between the husband and wife is strained on account of husband not liking the wife as apparent in this case, the view of other relations of the husband loses significance and in the facts of the case it will not be safe to attribute any motive to appellants No. 2 and 3 for the offence. In view of the aforesaid discussions and for the reasons indicated above we find no merit in the appeal of appellant No. 1, Sk. Haroon, hence the same is dismissed. Appellants No. 2 and 3, Abdul Sattar and Sk. Laloo are acquitted of the charge u/s 302 read with 34 of the Indian Penal Code by giving them benefit of doubt. Their appeals are accordingly allowed. Since appellants No. 2 and 3 are on bait, they shall stand discharged from the liabilities of their bail bonds.