Page 1 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.