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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURSIDICTION

CRIMINAL APPEAL NO.        888   OF 2017 (Arising out of S.L.P. (Crl.) No. 6630 of 2016)

Bibi Parwana Khatoon @ Parwana Khatoon and another … Appellants

Versus

State of Bihar …Respondent

J U D G M E N T

Prafulla C. Pant, J.

Leave granted.

2. The appellants, who are sister-in-law and brother-in-law

of  the  deceased,  have  challenged  the  judgment  and  order

dated 09.12.2016 passed by the High Court of Judicature at

Patna in Criminal Appeal (SJ) No. 48 of 2014 whereby said

Court  has  dismissed  the  criminal  appeal  affirming  their

conviction and sentence under Section 304B read with Section

34  of  Indian  Penal  Code  (IPC)  recorded  by  the  Ad  hoc

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Additional District Judge, Purnea in Sessions Trial No. 1219 of

2010 (with Sessions Trial No. 617 of 2011).

3. Prosecution story, in brief, is that Tamkinat Ara @ Bulbul

got married to Md. Parwez Alam on 30.09.2009 and she used

to live in her in-laws’ house.  The prosecution case is that after

her  marriage  deceased  used  to  live  with  Md.  Parwez  Alam

(husband),  Abdul  Gaffar  (father-in-law),  Baitun  Nisha

(mother-in-law), Bibi Parwana Khatoon (sister of husband) and

her husband Md. Hasan (both appellants).  It is alleged by the

informant Md. Faisal PW-5 (brother of the deceased) that the

deceased was killed by  setting  her  on fire  by all  the above

accused.  On receiving telephonic information on 30.05.2010

from father-in-law of the deceased, PW-5 Md. Faisal went to

see his sister and found that she had died of burn injuries.

On the basis of First Information Report given by Md. Faisal

Crime Case No. 184 of 2010 was registered relating to offence

punishable  under  Section  304B  read  with  Section  34  IPC

against all the five accused at Police Station Khajanchi Hat,

Madhubani.  PW-7 Arti Kumari Jaiswal, Station House Officer,

started investigation.  Dead body of the deceased was sealed

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and  sent  for  post  mortem  examination.   PW-6  Dr.  Umesh

Kumar  of  Sadar  Hospital,  Purnea,  conducted  post  mortem

examination  on  the  dead  body  of  Tamkinat  Ara  and  found

following ante mortem injuries: - “(i) Rigor  mortis  present  in  all  four  limbs  and

trunk

(ii) Tongue was protruded between teeth

(iii) Burned (burnt) blood clot from/in ear opening

(iv) 100% burn of five degree with smell.  Key oil and roasted smell, line of redness along burn area  absent,  vesication  and  sign  of inflammation  was  absent,  formation  of granulation  tissue  absent,  indicating  post mortem burnt.”

The  Medical  Officer  opined  that  the  deceased  died  of

asphyxia due to strangulation.

4. Later,  investigation  was  taken over  by  PW-8 Lal  Babu

Prasad  who  submitted  charge  sheet  against  all  the  five

accused.   Accused  Baitun  Nisha  (mother-in-law  of  the

deceased)  died  during  the  course  of  trial,  as  such,  case  as

against her stood abated and the trial court proceeded against

remaining four accused.

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5. After framing charge against the accused, the trial court

recorded the evidence of PW-1 Syed Masuf Ahmad, PW-2 Md.

Azam Rad, PW-3 Samim Akhtar, PW-4 Taleba Kauser (brother

of the deceased), PW-5 Md. Faisal (brother of the deceased and

informant),  PW-6  Dr.  Umesh  Kumar  (who  conducted  post

mortem examination), PW-7 Arti Kumari Jaiswal (who started

investigation) and PW-8 Lal Babu Prasad (who concluded the

investigation).

6. The prosecution evidence appears to have been put to the

accused  under  Section  313  of  Criminal  Procedure  Code

whereafter,  on  behalf  of  the  accused,  defence  evidence  was

adduced,  and  DW-1  Md.  Mozammil  Hussain,  DW-2  Md.

Shamim,  DW-3  Manish  Kumar  Srivastava,  DW-4

Raghunandan  Yadav,  DW-5  Rahul  Kumar,  DW-6  Mukesh

Kumar,  DW-7 Nakir  Yadav,  DW-8 Dhani  Yadav,  DW-9 Md.

Jasir and DW-10 Sanni Yadav, were got examined.

7. The trial  court,  after hearing the parties,  found all  the

four accused guilty of offence punishable under Section 304B

read  with  Section  34  IPC,  and  convicted  them accordingly.

Md. Parwez Alam (husband of the deceased) was sentenced to

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rigorous  imprisonment  for  ten  years,  and  each  one  of  the

remaining  three  convicts  was  sentenced  to  seven  years

rigorous imprisonment.

8. Aggrieved by the judgment and order dated 19.11.2013/

26.11.2013,  passed by the  trial  court  in  Sessions Trial  No.

1219 of 2010 (with Sessions Trial No. 617 of 2011), whereby

the  accused were  convicted and sentenced,  as  above,  three

appeals were filed before the High Court.  Criminal Appeal (SJ)

No. 59 of 2014 was filed by Md. Parwez Alam (husband of the

deceased), Criminal Appeal (SJ) No. 20 of 2014 was filed by

Abdul  Gaffar  (father-in-law  of  the  deceased)  and  Criminal

Appeal (SJ) No. 48 of 2014 was filed by present appellants Bibi

Parwana  Khatoon  and  Md.  Hasan.   The  High  Court,  after

hearing the parties, allowed the appeal of father-in-law of the

deceased but maintained the conviction and sentence recorded

against other three.  Hence, this appeal through special leave

by  sister-in-law  Parwana  Khatoon  and  brother-in-law  Md.

Hasan.

9. Our attention is drawn on behalf of the appellants to the

testimony of  the  defence  witnesses  relating  to  the  fact  that

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they were not residing in Kali Prasad Tola, and it is argued

that the courts below have failed to appreciate the same.  It is

also pointed out that there is no special role assigned to the

appellants in the First Information Report.

10. DW-1 Md. Mozammil Hussain, cousin of husband of the

deceased, has stated that Parwana Khatoon and Md. Hasan

used to live in village Sabutar, and on the day of the incident

they were not in village Kali Prasad Tola, Madhubani, i.e. the

place where the deceased and her husband used to live.  DW-4

Raghunandan Yadav, who is resident of Kali Prasad Tola, has

also stated that the present appellants used to live in village

Sabutar  (Purnea).   This  witness  belongs  to  village  Sabutar.

DW-7 Nakir  Yadav also  corroborated  the  fact  that  Parwana

and her husband Hasan used to live in Sabutar.  This fact is

further corroborated by DW-8 Dhani Yadav, DW-9 Md. Jasir

and DW-10 Sanni Yadav, all neighbours of the deceased and

her husband.

11. We have gone through the judgment and order passed by

the trial court (copy Annexure P-9) in which the trial court has

mentioned the name of defence witnesses but not discussed as

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to why their testimony as to the fact that married sister-in-law

(of  the  deceased)  and  her  husband  used  to  live  in  village

Sabutar, is not believed.  The High Court has also committed

the same error.

12. Apart from the above, in support of their plea, there are

three documents filed on behalf of the appellants, which are

copies of public documents, to show that they are residents of

village  Sabutar  in  District  Purnea.   Copy  of  the  Residence

Certificate is Annexure A-1, which shows that Sub Divisional

Officer, Sadar, Purnea, has certified on 31.10.2008 that Hasan

Raja (appellant No. 2) used to live in village Sabutar, P.S. K.

Nagar, District Purnea.  Another document (Annexure A-2) is

copy of PAN issued by Income-tax Department of Government

of India, which appears to have been sent on the address of

the account holder Parwana Khatoon (appellant No. 1) on her

address of Sabutar, Purnea, Pin Code 854205.  Not only this,

copy  of  service  book  (Annexure  A-3)  of  appellant  No.  1

Parwana Khatoon shows that she was Panchayat teacher in

primary school, K. Nagar (Purnea).  This document also shows

that address of appellant No. 1 is village Sabutar, P.O. Kajha,

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Police  Station  K.  Nagar,  District  Purnea.   All  these  public

documents read with the oral testimony adduced before the

trial court, create serious doubt in the prosecution story, so

far it relates as against the present appellants.  (We are not

commenting on the evidence as against  the husband of the

deceased.)

13. In view of the above discussion of oral and documentary

evidence, we find that both the courts below have erred in law

in  holding  that  the  charge  under  Section  304B  read  with

Section 34 IPC stood proved as against the present appellants.

In  our  opinion,  in  view of  the  evidence  discussed  above,  it

cannot be said that it is proved beyond reasonable doubt that

the  present  appellants,  who  are  sister-in-law  and

brother-in-law  of  the  deceased,  tortured  the  victim  for  any

demand of dowry.  In our opinion, in the present case which is

based  on  circumstantial  evidence  it  cannot  be  said  that

appellants had any common intention with the husband of the

deceased in commission of the crime. It is sufficiently shown

on  the  record  that  they  used  to  live  in  a  different  village.

Therefore, we are inclined to allow the present appeal.

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14. Accordingly,  this appeal is allowed, and conviction and

sentence  recorded  as  against  the  present  appellants  Bibi

Parwana  Khatoon  @  Parwana  Khatoon  and  Md.  Hasan  @

Hasan  Raja  is  set  aside.   They  are  acquitted  of  charge  of

offence punishable under Section 304B read with Section 34

IPC.  They are in jail.  They shall be released forthwith if not

required in connection with any other crime.

………………………..…….J. [N.V. Ramana]

………………………..…….J. [Prafulla C. Pant]

New Delhi; May 04, 2017.