State of J&K vs Mohammad Maqbool Dar & ors.

This appeal is directed against the judgment dated 13.05.2013 passed by learned Sessions Judge, Ganderbal, in terms whereof respondents

(accused) have been acquitted.

Daughter of the complainant was married to respondent No.2-Ashiq Dar alias Parvaiz. From the wedlock two children are born. Marriage

subsisted for four years but unfortunately terminated with the death of Mst. Haneefa (deceased). The deceased allegedly committed suicide. The

suicidal death was taken to have been instigated by the respondents (accused) as allegedly they were demanding dowry. The complainant-father of

the deceased lodged report based on which case was registered as FIR No.97/2006 P/S Ganderbal for commission of offences punishable under

Section 306, 498-A RPC. Registration of the case culminated in filing of charge sheet to the effect that the accused during investigation were

established to have committed the said offences. The case was committed to the Court of learned Sessions Judge, Ganderbal. Charge was framed

against the accused for commission of said offences. The accused pleaded not guilty, as such, claimed to be tried.

In support of the case, prosecution has produced as many as 12 witnesses. Thereafter accused were examined in terms of Section 342 Cr. P. C

wherein they stated that they have not committed any offence. In short, they denied complicity in the crime and added that, in fact, deceased,

against the wishes of her parents and family, had contracted marriage with the accused No.2 and when she died, her parents got an occasion to

wreak vengeance, as a result whereof case was registered against the accused persons. In defence, accused have examined two witnesses.

After hearing both the sides, learned trial court, precisely noticing depositions of the witnesses produced by the prosecution as well as by the

defence, has concluded that the case is totally based on circumstantial evidence. When it is so, the chain of circumstances has to be proved. The

chain must be completed so as to give a chance to derive satisfaction to the effect that the crime has been committed by the accused and none else.

Learned trial court has placed reliance on the judgments rendered by the Hon''ble Apex Court in the case of ""Munna Kumar Upadhyay alias

Munna Upadhyaya"" reported in (2012) 6 SCC 174, 2012 AIR SCW 3060 . Then has quoted as to what has been held by the Hon''ble Apex

Court.

The first question is as to whether case totally hinges on the circumstantial evidence. Answer is in affirmative. In this regard it shall be

advantageous to precisely refer as to what prosecution witnesses have stated.

PW-1, Abdul Majeed Gunchoo, father of the deceased, has stated that the marriage of the deceased Haneefa was not solemnized, in fact she

was kidnapped by accused Parvaiz Ahmad some four years back and from the wedlock two children are born. The deceased used to stay at the

house of the accused but the behaviour of the accused towards the deceased was not good. After two years of marriage, in-laws of Mst. Haneefa

started demanding dowry and started harassing her. He has further stated that when he reached to the house of the deceased, accused persons

were present, he enquired from them about the incident who told that the deceased has committed suicide of her own. On next day, when the dead

body was photographed in Police Control Room, he noticed injuries on her body. Her wrists were broken. She was having hematoma. She was

again in a family way so was bleeding. In the cross-examination, he has made it clear that he resides at a distance of 250 feet from the house of the

accused. Right from the beginning, his (witness''s) relation with the accused No.1 were not good. In fact, he and accused No.2 were having a

truck bearing No.3712 in partnership. When accused Mohammad Maqbool Dar started cheating in the matter, he received an amount of

Rs.1,75,000/ from him. It was during the subsistence of partnership of the truck, Mst. Haneefa (deceased) was engaged to the accused Parvaiz

Dar. Later on the engagement was broken and he advised his daughter not to marry accused No.2. She did not contract the marriage but was

kidnapped by accused No.2. Then has qualified that in his presence, accused persons never did beat the deceased. What was the behaviour and

attitude of the accused persons with Mst. Haneefa (deceased) at their home, he does not know. Then has again qualified that he does not know

how Mst. Haneefa has died. None of his family members used to visit the house of the accused.

PW-2, Mst. Hari, mother of the deceased, in fact, has made a similar statement as has been made by her husband, PW-1.

PW-3, Showkat Ahmad Gonchoo, brother of the deceased, has stated that Mst. Haneefa (deceased) was married to Parvaiz Ahmad accused

some four years back. She was killed in her home. Some 14 days before, he had seen his sister at his home as she had run away from her in-laws

house as the accused persons used to harass her and were demanding dowry. Wrists of her sister were broken. In his cross-examination he has

qualified that we have not participated in the marriage. The marriage ceremony was performed by the accused persons very well. At the time of

marriage, we have not given any thing to Mst. Haneefa (deceased). After marriage, for two years there was no communication between us and

Mst. Haneefa. Has further stated that when he reached to the house of the accused persons, the dead body was lying in the compound. Then has

stated that the mother-in-law of his deceased sister was demanding dowry but he has made it clear in his statement that in his presence, the other

accused persons never demanded dowry from the deceased. If his father has stated that he has given dowry to Mst. Haneefa, it is wrong. Then

has again made it clear that in his presence accused persons have not killed his sister.

PW-5, Shamim Ahmad Guroo, has stated that Mst. Haneefa (deceased) was married to Parvaiz Ahmad four years back. Two children are

born who are alive. Sometime back he heard that Mst. Haneefa has died. Once the father of the deceased told him that accused persons are

demanding dowry from his daughter but the deceased never told him about the same. He used to visit the house of the accused persons as well. In

his cross-examination has stated that the deceased was engaged with the accused Parvaiz Ahmad but later on the said engagement was broken.

The deceased contracted marriage with the accused of her own will.

PW-6, Abdul Aziz, has also made similar statement as made by PW-5 and has added that he heard noise that daughter of Mohammad

Maqbool has been killed. The accused persons were harassing the deceased why she has not brought dowry. The accused Mohammad Maqbool

Dar always used to say that the complainant should take her daughter back. In the cross-examination he has qualified that the deceased was his

cousin. Right from the date of marriage till her death, he never met Mst. Haneefa (deceased). She used to talk to him (witness) and also used to

visit his house being a neighbour. Then has stated that in-laws of Mst. Haneefa, were demanding dowry from the complainant. Again has stated

that Mst. Haneefa told him that the accused persons are harassing her but he(witness) has no personal knowledge about the same.

PW-10, Dr. Riyaz Ahmad Khan, has stated that as per the history, the lady was found dead at her house with a ligature round her neck. He,

however, could not opine whether the mark was self inflicted or otherwise. In his opinion, the cause of death was due to asphyxia blockade of

oxygen to lungs and brain. He has made it clear that the ligature could be caused by the scarf.

Defence witnesses:

DW Habibullah Dar has stated that both accused and complainant are known to him. Before marriage between deceased and accused No.2,

there was an engagement which was broken by the parents of the accused and the deceased. There was a disputed in between co-owners of the

vehicle which was amicably resolved. After rendition of accounts, engagement of accused Parvaiz Ahmad and deceased was broken but deceased

eloped with accused of her own. A case was registered. Parvaiz Ahmad was apprehended and the deceased was recovered. The complainant

Abdul Majid refused to take his daughter back. Marriage of the deceased with Parvaiz Ahmad was solemnized at the house of the witness

because the complainant party had socially boycotted the deceased.

Testimony of DW Abdul Ahad Dar is also on the similar lines.

It is clear that the deceased and the accused No.2 were married to each other but their marriage was to the disliking of the father of the

deceased as well as her other relatives. It is also established from the testimony of the witnesses that the deceased was residing with the accused

after marriage for over a period of four years until she died. Two children were also born. Now the question is as to whether alleged suicide

committed by the deceased was at the instance of the accused, whether accused were demanding any dowry and whether accused were torturing

her. There is no direct evidence to prove the said allegations. However, three witnesses i.e. PW-1(father), PW-2(mother) and PW-3(brother of

the deceased) in one voice have stated that the marriage was contracted by deceased with accused No.2 against their wishes. All the three

witnesses have also made it clear that they had strained relationship with the deceased and the accused No.2. They have not seen the occurrence,

they were not visiting each other, therefore, there was no occasion for them to say that the deceased was being tortured or that any dowry was

being demanded from the deceased by the accused. Testimony of these witnesses has an element of bias. The exaggeration to the effect that the

arms of the deceased were broken when she was beaten with a belt is not supported by medical evidence.

PW-3, brother of the deceased, has also stated that after marriage of deceased and accused No.2, for about two years they had no

communication with the deceased. He in his statement has made it clear that it is the mother-in-law of the deceased who was demanding dowry

but he has not been able to show as to who informed him or where from he gained knowledge that the mother-in-law of the deceased was

demanding dowry.

PW-5, Shameem Ahmad Guroo, has stated that he heard from the father of the deceased that the accused persons were demanding dowry

from his daughter but the deceased never told him about the same. Then has qualified that he(witness) used to visit the house of the accused

persons, means he has no direct knowledge about the demand of dowry. Simply on hearsay basis he has stated that the dowry was being

demanded.

PW-6, Abdul Aziz, cousin of the deceased, though in examination-in-chief has stated that the accused persons were harassing the deceased as

to why she has not brought the dowry and that the accused Maqbool Dar, father-in-law of the deceased, used to say and convey to the

complainant to take his daughter back but in cross-examination he has made it clear that right from the date of marriage till her death, Mst.

Haneefa, never met him. Who has informed him that she was being harassed or dowry was demanded is clearly hearsay. He has again stated quite

opposite to what he has said above that the deceased told him that the accused persons are harassing her, however, has qualified that he has no

personal knowledge about the same.

PW Dr. Riyaz Ahmad, who has conducted postmortem of the dead body, has stated that he found ligature mark round the neck about 12 inch

long and 1/2 inch thick and 21/2 inches below right ear and up to nap of the neck. He could not opine whether mark was self inflicted or

otherwise. He has nowhere said that any arm of the deceased was fractured or broken, as has been stated by PW-1, father of the deceased.

PW-11, Bashir Ahmad, who has investigated the case, too has not said anywhere that the arms or wrist of the deceased were broken or

fractured.

Suicidal death is established but it is not proved by any of the prosecution witnesses as to why the deceased had committed the suicide. The

prosecution witnesses, more particularly father, mother, brother and cousin of the deceased projected a theory that the accused were demanding

dowry. They are the related and partisan witnesses. Their testimony has to be scrutinized with great deal of care, more so when it is an admitted

fact that the deceased had contracted marriage with the accused No.2 against their wishes. So the element of anger amongst them was totally

there, as is inferable when the father and mother lost their daughter.

The deceased and accused No.2 were living together for a long period of four years and two children were born from the wedlock, but the

parents of the deceased and even brother, PW-3, had no contact with the deceased, how could they say that she was being harassed. In case

deceased would have been harassed or tortured, at least she would have fled away from the house of the accused.

The defence version assumes importance as according to the defence with accused and the deceased were living in a tin shed separate from

their family members. They have not stated anywhere that deceased and the accused had any type of acrimonious relationship.

There is no reliable evidence which would suggest that the deceased was tortured or that dowry was demanded from her. The guilt against the

accused has not been proved, therefore, trial court has rightly acquitted the respondents (accused).

Viewed thus, appeal is found to be without merit, as such, dismissed.

Trial court record along with copy of the judgment be sent to the trial court.