SYED HAKKIM Vs. STATE

JUDGEMENT

(1.) Leave granted.

(2.) Challenge in this appeal is to the judgment of a Division Bench of the Madras High Court dismissing the appeal filed by the appellants. Seven accused persons faced trial. Appellants-accused were numbered as A-1 and A-2 respectively in the trial Court and before the High Court. Out of seven accused persons who faced trial A-1 to A-5 and A-7 were convicted for offence punishable under Section 498-A of the Indian Penal Code, 1860 (in short the IPC) while A-1 to A-5 were also convicted for offence punishable under Section 302 IPC. In appeal the High Court set aside the conviction so far as A3, A4 and A5 are concerned in respect of offence punishable under Section 302 IPC.

(3.) Prosecution version in a nutshell is as follows : The marriage between the first accused and Syed Ali Fathima (hereinafter referred to as deceased) took place on 22.4.2001. A2 is the brother of A1. A3 and A4 are the sisters of A1 and AS is the mother and A6 is the father of A1. A7 is the aunt of A1. P.W.1 is the mother of the deceased. At the time of marriage, P.W.1 paid Rs.5,000/-and three sovereigns of gold jewels and after a period of two months, the first accused went to Mumbai seeking for a job. All the other accused ill-treated the deceased stating that the dowry demand was not met. Prior to the occurrence, the first accused came from Mumbai. PW-1 was summoned. At that time, there was a demand from accused Nos. 1, 2 and 7 that 10 sovereigns of gold and a sum of Rs.5,000/-towards "Seevarisai" for Ramzan must be paid immediately. A-7 who was present at that time informed PW-1 that she can pay the said demand within a period of two months. P.W.2 is closely related to P.W.1. On 6.3.2000, he came to Pallapatti and went to the house of P.W.1. P.W.2 was informed by P.W.1 that there was a dowry demand from the side of the accused. A marriage was scheduled to take place in the house of a resident which is next to the house of the first accused and hence on 8.3.2002, P.W.2 came to the house between 11 a.m. and 12 noon. He was talking to the said neighbour. Since P.W.2 knew that there was a dowry demand, he decided to meet the deceased in her house for that purpose. When he was just getting down through the staircase, he was able to see the house of the deceased Fathima. A window was kept open through which he was able to see within 10 feet. At that time, A1 and A2 strangulated the deceased Fathima with a rope and A3 and A4 caught hold of both the arms. On seeing this, P.W.2 was shocked. When he was witnessing the occurrence, A2 saw P.W.2. Immediately, P.W.2 went to the place of PW-1. But he could not meet anybody and he went to his native place, Salem and returned on the next day i.e. 9.3.2002. On the day of occurrence, i.e., 8.3.2002, the son of the 2nd accused proceeded to the house of P.W. 1 and informed her that she was to be taken to the house of the accused and took her in a two wheeler. When P.W. 1 went to the house of the accused, the wife of A2 informed that the deceased Fathima was upstairs. When P.W. 1 went to upstairs, she found only the dead body of her daughter and P.W. 1 was able to see a ligature mark around the neck of the deceased. When P.W.1 enquired, nobody gave any answer, but all laughed. P.W.1 immediately came back and informed the relatives and proceeded to the police Station. P.W.13, the Sub-Inspector of Police was on duty on the day of occurrence. P.W.1 gave a complaint at about 17.30 hours which is marked as Ex.P.1, on the strength of which a case came to be registered in Crime No.49/2002 under Section 174 of the Code of Criminal Procedure, 1973 (in short the Code) was dispatched to the Court. On receipt of the copy of the F.I.R., P.W. 14 the Deputy Superintendent of Police took up investigation, proceeded to the scene of occurrence, made inspection and prepared Ex.P.2- the observation Mahazar and Ex.P.12- the rough sketch. He also sent a copy of the FIR to PW-10, the Revenue Divisional Officer who on receipt of the copy of the FIR proceeded to the place and also conducted inquest on the dead body in the presence of witnesses and prepared Ex.P-9, the Inquest Report wherein he opined that it was not a case of suicide but it was the death by homicide. He also made enquiries from witnesses and the accused. Following the same, the dead body was subjected to postmortem by P.W.9, the doctor attached to Govt. Headquarters Hospital, Karur, who opined that the deceased would appear to have died of Asphyxia due to strangulation about 24-36 hours prior, to autopsy. Originally, the case was registered under section 174 of Code. Later, it was converted into one under Sections 498-A and 302 IPC and the Express F.I.R. Ex.P. 13 was dispatched to the court. Pending investigation, accused Nos.1 to 6 were arrested. A2 came forward to give confessional statement voluntarily and the same was recorded by P.W. 13, the Deputy Superintendent of Police in the presence of witnesses, pursuant to which A2 has produced M.O.1-Nylon rope which was recovered under a cover of Mahazar, Ex.P.4. All the accused were sent for judicial remand. On completion of investigation, the investigating officer filed the final report. The case was committed to the Court of Session. Necessary charges were framed in order to substantiate the charges levelled against the accused. The prosecution examined 16 witnesses and relied upon 13 exhibits and 3 material objects. On completion of evidence on the side of the prosecution, the accused were questioned under Section 313 of Code. PW-2 was projected to be an eye witness. But he resiled from his statement made during investigation. The trial Court and the High Court proceeded on the basis as if the prosecution version rested on circumstantial evidence. Two circumstances were highlighted to fasten the guilt on the accused. The plea of alibi set up by A-1 having been disbelieved it must be presumed that he was guilty. Similarly, in respect of A-2 plea of suicide was ruled out by the evidence of doctor (PW-9). A-2 was held to be guilty. On the aforesaid ground the trial Court convicted the present appellants and the High Court concurred with the view of the trial Court.