State Of Gujarat vs Yusufbhai Hasanbhai Qureshi & Ors

Ilesh J. Vora, J

Here is the Appeal by the State against the judgment and order of acquittal.

Being dissatisfied by the judgment and order passed by the learned Sessions Judge, Mehsana passed in Sessions Case No.194 of 2000, dated 16.04.2001, acquitting the respondents from the offence under Sections 498A, 302, 304B read with Section 34 of the Indian Penal Code and Sections 3 and 7 of the Dowry Prohibition Act, the State has preferred instant appeal under Section 378 of the Cr.P.C.

This Court has heard Mr.Krutik Parikh, learned Additional Public Prosecutor and Mr.M.C. Barot, learned advocate for the respective parties.

Brief facts giving rise to file the present Appeal are that, the respondents accused were tried and prosecuted for the offence punishable under Sections 302, 498A, 304B, read with Section 34 of the Indian Penal Code and Sections 3 and 7 of the Dowry Prohibition Act. As per the prosecution case, the marriage of the deceased Nurjaha was solemnized with the A1 Yusuf Hasanbhai before four years prior to the incident and the husband and wife were blessed with baby girl Isratbanu. The initial six months’ marriage period, there was no issue, but thereafter, the deceased Nurjaha was subjected to harassment physically and mentally and she was asked to bring cash amount of Rs.25,000/- and one buffalo from the parental home. The harassment meted out to her allegedly by the husband, brother in law, mother in law and sister in law. Due to the matrimonial dispute, the deceased had left the matrimonial home and on account of settlement, she returned to the matrimonial home and again, she had left after some time. There was a marriage in the family, as a result, on 20.04.2000, the father in law came to the marital home of the deceased and taken her back at the matrimonial home. Before day one of the marriage, i.e. 29.04.2000, in the early morning, the FIR came out from the house and due to the said fire, the deceased and her daughter sustained burn injuries and died on the spot. PW:2 Akbarbhai being brother of the deceased received the message of the incident and he along with other family members came at the matrimonial of the deceased situated at Village Mandali, Dist.: Mehsana. The jurisdictional police was informed and initially, the case was registered as accidental death. The brother PW:2, submitted a written complaint to Dy.S.P. of the area, inter alia alleging that, the deceased was set on fire by pouring kerosene and she was subjected to harassment physically and mentally by the accused because of insufficient dowry. The respondents accused were arrested and after due investigation of the case, the chargesheet came to be filed. After committal of the case to the court of Sessions, the charges came to be framed against the accused, which they pleaded not guilty and claimed trial.

In the course of trial, the prosecution examined as many as 10 witnesses and exhibited 22 documents to prove the charge against the accused. The accused in their defence examined two witnesses viz. DW:1 Usmankhan Pathan and DW:2 Mahebubkhan Pathan.

On conclusion of oral evidence, the trial Court recorded further statement of the accused as provided under Section 313 of the Code, wherein, the accused claimed that they have been falsely implicated in the offence and as such, the deceased herself committed a suicide with the minor daughter.

The learned Sessions Judge after appreciating and examining the oral as well as documentary evidence acquitted the accused herein for the offences with which they were charged, on the ground that, the allegation of demand of dowry is not proved and so far as cruelty is concerned, the oral evidence of the family members of the deceased is not sufficient to prove the guilt of the accused. So far as dowry death is concerned, the trial Court observed that, the essential ingredients of Section 304B are not proved and established. The learned Trial Court on the charge of murder held that the deceased along with her daughter committed a suicide by pouring kerosene and as such, the necessary ingredients of homicidal death of the deceased and her daughter is being not proved and established by the prosecution.

In view of the aforesaid facts and circumstances, this acquittal appeal has been preferred by the State.

In the facts of the present case, the case of the prosecution rests on the circumstantial evidence. The witnesses examined are close relatives and family members of the deceased. The witnesses PW:2 brother, PW:4 cousin brother, PW:6 mother have alleged against the accused that after six months of the marriage, the deceased Nurjaha was harassed on the issue of insufficient dowry as the accused demanded from the deceased a cash amount of Rs.20,000/- and one buffalo to be brought from the parental home. The witnesses have further stated that due to matrimonial dispute, she had come to the parental home and after some time, due to the marriage in the family, she was taken at the matrimonial home, Village Mandali. The witnesses have further stated that their daughter and her minor daughter had been killed by the accused because the demand of dowry was not being satisfied and she was killed within seven years of the marriage.

Mr.Krutik Parikh, learned Additional Public Prosecutor for the appellant – State assailing the judgment and order of acquittal, has submitted that the findings of acquittal are contrary to law and evidence on record and the findings recorded are palpably erroneous and based on the irrelevant material. The trial court failed to appreciate the facts that the death was occurred otherwise than under normal circumstances within 7 years of marriage and soon after the death, the deceased was subjected to cruelty and harassment in connection with demand of dowry. It is boundant duty of the trial Court once the foundation facts of the offence is proved and established, the court shall have to presume that the alleged suicide was being abetted by the respondents accused. Thus, it seems that, the trial court in a mechanical manner, has failed to appreciate the evidence of the prosecution in its true prospective and therefore, the findings of the acquittal are seems to be contrary to the evidence on record and palpably wrong.

In such circumstances, as referred above, it has been submitted that while acquitting the respondents accused, the trial Court has discarded and ignored the truthful, reliable and acceptable evidence and as such, no cogent reasons being assigned while discarding such evidence. Therefore, it is submitted that the conclusion of acquittal recorded by the Trial Court is contrary to the evidence on record and upon erroneous understanding of law. Thus, it is prayed that the prosecution has succeeded in proving the charge against the respondents accused and the judgment and order of acquittal be set aside and accused may be convicted and sentenced for the offence as referred above.

Mr.M.C. Barot, learned advocate appearing for the respondents accused has submitted that the High Court in a case of Appeal against the acquittal, can interfere only when there are compelling substantial reasons for doing so and more particularly, the findings are without reasons and unreasonable and contrary to the evidence. In the facts of the present case, the trial Court has rightly held that the demand of dowry was not in connection with the marriage as there was no agreement to give dowry either at the time of marriage or after the marriage. It is further argued that the foundation facts of the prosecution case with respect to dowry death within a period of seven years is not established and therefore, the question does not arise to raise the presumption of guilt as provided under Section 113B of the Evidence Act.

In such circumstances, referred to above, learned counsel appearing for the respondents accused, has submitted that the Trial Court while acquitting the accused has assigned cogent and sufficient reasons and therefore, the judgment of acquittal passed is well reasoned, legally sustainable and does not suffer any infirmity warranting interference by this Court.

Before proceeding to address the rival submissions, we would like to place on record the scope of interference in an appeal against the acquittal and when the same is justified. In exceptional cases, where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the judgment of acquittal. The Appellate Court should bare in mind the presence of innocence of the accused and further that, the trial Court’s acquittal bolsters the presumption of his innocence. Interference in a routine manner, where the other view of possible should be avoided, unless there are reasons for interference.

In the present case the issue falls for our consideration as to whether the trial Court was justified in acquitting the accused?

We have carefully examined the oral as well as documentary evidence and perused the findings of acquittal rendered by the Trial Court. In the facts of the present case, it is not in dispute that deceased Nurjaha and her daughter Ishrat died due to burn injuries. The question for consideration is whether the evidence adduced by the prosecution is sufficient to prove the charge for the offences punishable under Section 302, 304B, 498A, read with Section 34 of the Indian Penal Code and Sections 3 and 7 of the Dowry Prohibition Act ?

In the facts of the present case, the factum of marriage and relations of the parties are not in dispute. The witnesses in their respective testimonies have alleged against the accused about causing mental and physical harassment to the deceased. On this aspect, we are of the opinion that to attract of Section 498A of the Indian Penal Code, it must be established that the cruelty and harassment to wife was to force her to cause grave bodily injuries to herself or to commit suicide or the harassment was to compel her to fulfill illegal demand of dowry. If we examine the oral testimony of witnesses, the allegation seems to be general in nature and does not inspire confidence that the accused had demanded the cash amount and one buffalo. The brother of the deceased alleged that the deceased was not liked by her husband and there was a matrimonial dispute between them. In such circumstances, the story of demand of cash amount and other things, in absence of cogent and acceptable evidence, is not proved and established and therefore, so far charge under Section 498A is concerned, the prosecution miserably failed to prove the said charge by adducing cogent and acceptable evidence against the accused.

So far as charge of Section 304B of the Indian Penal Code is concerned, the prosecution has to prove that there was unnatural death of woman; that woman had been married within 7 years preceding her unnatural death; soon before her death, she was subjected to cruelty and harassment by her husband or other relatives and said harassment was for or in connection with demand of dowry. In Para-17 of this judgment, we have discussed that the demand of dowry is not proved and established and we further add that, there was no agreement between the parties to give a dowry at the time of marriage or thereafter. Unless and until, the foundation facts proving the charge of dowry death against the accused is not proved by the prosecution, the question does not arise to presume that the accused had caused the dowry death and therefore, in our opinion, there is no evidence to prove that the case is a dowry death as defined under Section 304B of Indian Penal Code. So far as charge of murder is concerned, it is evident that deceased and her daughter, was sleeping in the room and at the relevant time, due to the marriage, the family members did not go to sleep till midnight. The incident of burning being occurred in the early morning. The neighbours i.e. DW:1 and DW:2 had seen the flames of fire in the house and the room was closed inside. The FSL report does not indicate that the accused in any manner involved in the crime as the presence of kerosene was not found on the nails of the accused. In such circumstances, the prosecution failed to prove that death was homicidal in nature.

For the reasons aforementioned, we come to a conclusion that the view of the Trial Court is possible and plausible view and the Trial Court while analyzing the evidence has assigned cogent and sound reasons while acquitting the accused and therefore, findings of acquittal are reasonable and based on the evidence on record and we do not find any perversity in the findings of acquittal so as to interfere. Thus, in our considered opinion, the Trial Court was justified in acquitting the accused and we are in complete agreement with the findings, ultimate conclusion and resultant order of acquittal recorded by the Court below and hence finds no reason to interfere with the same.

With the observations as aforesaid, the appeal is accordingly dismissed. The Registry is directed to send back the R & P to the Trial Court. Bail bonds are cancelled, if any, and surety is discharged.