JUDGMENT
Vikramaditya Prasad, J.
1. The appellants stand convicted and sentenced for offences under Section 304B and 498A, IPC and for the offence under Section 304B, IPC for 10 years R.I. and the rest of the appellants for 7 years R.I. and for the offence under Section 498A, IPC, no separate sentence has been awarded.
2. The questions to be answered in this appeal are (i) what should be the standard of evidence for proving marriage for conviction under Section 304B IPC, when the marriage is not admitted and (ii) whether the fardbeyan, of the victim girl in the circumstances of the case can be treated as her dying declaration ?
3. The questions aforesaid arise out of the prosecution being initiated on the basis of the fardbeyan, Ext. 4, of the victim girl recorded on 3.5.1998, at 14 hours at R.M.C.H. by the A.S.I., S.M. Jahangir, P.W. 10, disclosing that on 13.4.1998, at about 7-8 p.m. while she was preparing meal in her sasural, her husband Imtiyaz @ Sonu called on her and took her to a room where all the accused persons were there and she asked as to why she had been called for, her husband told her as to why she did not bring dowry amount of Rs. 50,000/- She told that her father was not in a position to pay the amount. Thereafter the accused Imtiyaz Khan tied her hand from behind, accused Gyas Khan brought K. Oil, accused Sazad Khan brought match and the other accused persons along with her step mother-in-law and step sister-in-law caught her. It is alleged that her husband threw a lighted match on her body and she started burning. Thereafter the accused persons closed the door from outside and when they were convinced that she died, they went inside the room. In the meantime, own mother-in-law of the deceased came from outside and started weeping and that the injured was brought to R.M.C.H. Ranchi, on 15.4.1998, where her treatment was going on.
4. It appears that the victim girl died on 7.5.98. Inquest report, Ext. 1, was prepared, signature thereon to the witness, Ext. 1/1 was proved by PW 9 and thereafter the post-mortem , Ext. 3, was conducted, which disclosed that the death was due to burn and its complications. It is also interesting to note that one more fardbeyan, Ext. 5, was recorded on the statement of the brother of the victim girl, Md. Azad, PW 4, by PW 9 himself on 8.5.1998.
5. The defence version as per the trend of the cross- examination of the witness and statement of the appellant-husband under Section 313 Cr. PC is that the victim was his sister-in-law (sali, i.e., wife’s sister) and she had come in connection with the marriage of his sister, then by the flames of an earthen lamp, which was on the shelf, she caught fire in the course of cooking and got burnt.
6. From the aforesaid facts, it is admitted that Nazia Parveen died of burn injuries and the burning took place in the house of the appellants.
7. Question No. (i) what should be the standard of evidence for proving marriage for conviction under Section 304B IPC when the marriage is not admitted ?
In the fardbeyan, and in the inquest report as also in the post-mortem, the name of the husband of the deceased, Nazia Parveen, has been shown as Intiyaz @ Sonu. Then a sub-question will therefore, arise whether such showing in such documents can by itself be an evidence of the fact that the person whose name so shown, in fact, is her husband. I will address myself to this question later on. First I want to proceed to examine the evidence on the point of marriage.
PW 1, who is a co-villager of the appellants, in his examination in chief categorically said that the injured Nazia Parveen was the sali, of Sonu arid to his knowledge, the Neekah, (marriage) of Nazia was not done with Sonu and she had come in the house of Sonu day before the marriage. This witness has not been declared hostile by the prosecution.
PW 2, in his cross-examination, says that Nazia, had come about 15 days before the occurrence in connection with the marriage of Nasir Khan’s daughter and Nazia was the sali, of Sonu and Sonu had not married her. To a Court question, he said that Sonu had married at Bariatu and the wife of Sonu lived at Indrakala and her name was Sahani. Though he said that he had not attended the marriage of Sonu himself. This witness has not been declared hostile.
PW 3 is the brother of the victim girl. He said in his examination in chief that in-laws had burnt her. In cross-examination, he says that sautan, of his sister was present in the Court and her name was Sahani, she was her khaleri, sister and she was married 5 years prior to the occurrence and in that marriage, Imtiyaz had gone with Bariatu. Thus, this witness in this paragraph admits the existence of the first marriage, in which even barat, had gone. As the parties are Mahammadan by faith, the male may marry the second wife during the life time of his first wife. Therefore, though from this evidence of PW 3, the marriage of Sonu with Sahani is proved, but the second marriage with the victim is neither disproved, nor proved, at least uptill this stage. In paragraph 7 of his cross-examination, he says that in the marriage of Nazia Praveen, Sonu had not come with Barat. In paragraph 8, he says that he had got neekah, (marriage) between Imtiyaz and Nazia performed, but in the same breath, he says that he was not present at the time of that neekah, as he had been expelled one month earlier to the said neekah. Thus, this witness himself admits, though claims of neekah, that at the time of the neekah, of the victim girl with Sonu, he was not present and he was not present at the time, of so called neekah, on account of his expulsion one month prior to that neekah. Thus, this witness is not an eye-witness of any neekah, having taken place between the victim girl and Sonu. Then he subsequently says in paragraph 9 that his sister had gone to Sonu’s house and he also went and when he asked his sister to come back, then he was informed that she had married. But by whom he had been informed this has not been disclosed. The part of evidence of this witness makes it clear that prior to going of the victim girl to the house of Sonu, no marriage has taken place, otherwise there could not have been an occasion for saying that during this period she was married to Sonu. From whom he got this information is also not known. Though in paragraph 10, he says that he enquired about this marriage from the father and uncle of Sonu and also from Mukhiya and they told him about the marriage. But neither the father, nor the uncle, nor the Mukhiya, has been examined to corroborate this witness, from the side of the prosecution. In paragraph 12 of the cross-examination, he says that when neekah, takes place, it is entered into the Register of the Anjuman and he tried to see that Register, but that Register was not shown to him. It is found that no prayer was made before that Court for a direction to the prosecution to obtain that Register in support of the claim. Thus, from his evidence, it is clear that he is neither the witness of neekah, nor there is any other witness in whose presence, the so called neekah, was performed and the person from whom he got the information of neekah, has not turned up to corroborate his testimony and no document prepared by the Anjuman was exhibited.
PW 4 a related uncle of the village of the victim. He is a witness on inquest and he got information from his nephew that Azad PW 3 had informed that his sister was burnt and her husband had gone to hospital. The evidence of this witness is not admission, because the nephew, who had given the information, had not come to corroborate.
PW 6 is the mother of the appellant Sonu. She has admitted that on the alleged date of occurrence and time, she was not in the house and admitted that Nazia Praveen and two sons were there and she got the information of burning from her Bhagina, Mahir Khan. She came to the house. In paragraph 3 of her cross-examination, she says that only 8 days prior to the occurrence, the victim girl had come to attend the function nayota, as there was marriage of her daughter. Nothing has been elicited in her evidence on the marriage of the victim with Sonu. Thus, from her evidence, only this much is proved that the victim girl had come 8 days prior to the occurrence and thus, she is almost corroborated on this point by PW 1 and PW 2.
More than aforesaid, there is no prosecution evidence on the marriage.
As against this, the defence has examined two witnesses. DW 1 has claimed himself to be the President (Sadar) of Anjuman of the village. He knows Sonu, the appellant No. 1. He says that Sonu was married at Bariatu and out of this marriage, he got two sons. That marriage has taken place in the year 1998. In the last paragraph of his examination in chief, he says that Nazia (victim) was not married in the Anjuman of the village. In cross-examination he says that the police had not made any enquiry from him. This witness has proved, Ext. B, a joint petition filed by 13 villagers in the Court of the District and Sessions Judge , stating the defence version of the case. DW 2 is another villager. He says that DW 1 is the President of Anjuman of the village. He says that there is a permanent register maintained by Anjuman and he has proved Ext. C, a copy of the page 6 of that Register, to show that no marriage had taken place and he has proved the hand writing thereon, besides he has stated that there was a meeting in which the petition was prepared and signed by others including himself, that the Nazia died in the circumstances as stated by the defence. Hindi translation of Ext. C is at page 22 of the lower Court records, which shows that on enquiry the Anjuman came to find that Imteyaz was not married to Nazia Praveen and she was related to him as his sali.
From the aforesaid evidence, it is found that Md. Azad himself, as stated earlier, is not an eye-witness to the marriage and no body has come to corroborate his claim that the victim was married with Sonu even during the period, she came to remain to his house, On the other hand, the President of Anjuman has said that no marriage had taken place. Other than Md. Azad, the brother even father and mother of the victim girl have not turned to support Azad at least on the point of marriage between the victim and Sonu.
8. Under Mohammadan law the marriage is a contract and it is always solemnized in presence of witnesses. In absence of any witness, the marriage itself cannot be solemnized and therefore, the witnesses would be the competent person to say whether there was marriage or not. It has been found that no such witness has come and the Register also, which though not required mandatorily, has not been exhibited. It is also not the case that despite requisitioning of the Register, that Register was not produced. So it is clear that the marriage was not performed according to the Mohammadan taw and there is no evidence on that point.
9. Then the question arises whether under Section 50 of the Evidence Act, on the basis of aforesaid evidence Court can hold an opinion that victim and Sonu were married? Section 50 of the Evidence Act is independent of any Personal Law and therefore, even if the marriage is not formally proved and if the requirements of this section are proved, marriage can be presumed. The illustration appended to this section is as follows :
The question is whether A and B were married.
The fact that they were usually received and treated by their friends as husband and wife is relevant.
In the instant case, no friend, either of the victim girl or of the appellant husband, has come to say that they had treated the victim and the appellant as husband and wife. So the existence of relationship expressed by conduct is not established. The brother, no doubt, being a member of the family may have special means of knowledge on the subject; therefore his statement may become relevant under this section. But as found above, his own statements are self-defeating and is based on hear-say evidence as he has no personal knowledge or special knowledge of the marriage. Thus, the requirement of this section is also not fulfilled to come to a conclusion that the victim girl and the appellant, Sonu, were living as husband and wife and they were treated by their family friends as such or any member of the family had any special knowledge of their marriage.
10. Now the question is whether the proviso to this Section 50 will be attracted in this case. This proviso does not include Section 304B IPC, meaning thereby that even for the purposes of proving marriage under Section 304B IPC, opinion with regard to marriage can be formed. The learned trial Court in paragraph 19 of the impugned judgment has stated as follows.
“Assuming that even it she had not been married properly or her neekah, had not been done in presence of the witnesses, but the facts that she was not allowed to go to her Naihar proves that there was illicit relation between the deceased and the accused Sonu (Imtiyaz Khan). The deceased might be insisting or compelling the accused Sonu for marriage and for that she was burnt to death by the accused persons.”
This argument of the learned trial Court is completely hypothetical. There is no allegation coming even from the side of the brother, PW 4, of any illicit relation. Even if illicit relation is there, that does not culminate into a marriage and if for that reason, there is burning and quarrel, then that can be a case of culpable homicide. It has been found that even under Section 50 of the Evidence Act, in fact, no opinion with regard to marriage could be found. One circumstance which is relevant to consider in this context is that PWs including the brother have consistently said that the victim had gone to the house of Sonu a few days back on the invitation Mehemani. The word Mehemani in this area is used in the context of visiting relations to attend some function and if the victim girl had come to the house of Sonu in connection with the marriage of the sister of Sonu as stated by PWs 5, 1 and 2 and other DWs, then her coming to that place is to be appreciated in this context. It is shocking that she was died during this period in suspicious circumstances. Even if for the argument’s sake, her brother’s evidence is believed to the extent that when he went to take back her, he knew that she was married; then also there is no evidence to show that during that period, the victim girl was tortured for not bringing Rs. 50,000/-. Because had it been a case that she had in fact been married and would she have come to Naihar from that place, then the question of torturing, her for not bringing Rs. 50,000/- could have arisen. If the marriage was performed and after the marriage, she had no opportunity to come back to her Naihar, then it is not probable how the husband would say as to why she had not brought Rs. 50,000/-. This has been stated for the argument’s sake and for nothing else.
11. Now I address to sub-question, that is raised in paragraph No. 7 (supra), i.e., recording the name of a particular person as husband in certain documents (in Ext. 5 inquest report and post-mortem report), can by itself be an evidence of the fact that the person whose name so shown, in fact, is her husband. All these documents have been prepared in absence of the husband and these are not official documents. When the Doctor writes the name of the husband at the time of post-mortem, he writes it for the purpose of identification of the dead body on the basis of the information supplied to him by certain constable and that constable, in his turn, gets knowledge from the fardbeyan, and the fardbeyan is recorded by a person on the information furnished to him by the victim or her relation. Such information can be maneuvered by interested person. None of these recordings is the document prepared by a person authorized, forming opinion under Section 50 of the Evidence Act.
12. Thus, the answer to this question is that since this offence under Section 304B IPC is a serious one as it has severe penal provision its ingredients must be proved strictly. Thus, the standard of evidence to prove the marriage for that section would be either in accordance with the provisions of Personal Law to which the parties belong or by the conduct under Section 50 of the Evidence Act. Mere living together and having illicit relationship, as presumed by the trial Court, does not constitute a marriage.
13. Question No (ii) whether the fardbeyan, of the victim girl in the circumstances of the case can be treated as her dying declaration?
As stated earlier. Ext. 4, the dying declaration was recorded on 3.5.1998, whereas the fardbeyan, of Md. Azad, the brother, Ext. 5, was recorded on 8.5.98. The signature of Md. Azad on this exhibit has been marked as Ext. A and there is no dispute on this point that Md. Azad also got a fardbeyan, recorded on the aforesaid date, 8.5.98, at R.M.C.H. itself. PW 10 Md. Zahangir, is the writer of both the fardbeyan. Technically, the fardbeyan of the victim, Ext. 4, was recorded earlier, which formed the basis of the FIR and the fardbeyan, Ext. A, will become the statement of the witness during investigation. This Zahangir, PW 10, in his cross-examination says that in the morning at 10.00 a.m. he had reached R.M.C.H. and the victim girl said to her that she had got herself burnt sayam jali Hai, and at that time, her husband was not there. He talked to her orally and again came back at 2.00 p.m. to record her statement. At that time, there were 10-15 persons assembled from Azad Basti and they had raised protest and when they insisted upon Nazia, then Nazia changed her version (tab Unone beyan ko Badla). He had not taken any certificate of recording the statement of Nazia from any Doctor and at that time, when his statement was being recorded, to a Court question, he said that there were 10-12 persons from Azad Basti, who pressurized him to record this statement and despite his direction they did not leave the place. Then he said that this fardbeyan, was recorded in presence of the witnesses and he sent it to Basia P.S. He also proved the fardbeyan, Ext. A, of Md. Azad. He said that after the death of the victim, he had recorded the fardbeyan, of Md. Azad. From his evidence, two peculiar things appear (i) when this witness met the victim for the first time in the morning the victim did not state that it was the husband, who had burnt her. He made oral enquiry but unfortunately and surprisingly he did not record the statement then and there and (ii) he allowed four hours time to lapse and by that time, many persons had assembled and there was pressure on the victim by those assembled people and under their pressure, the victim changed her version. It is not understood as to why this officer did not record the statement, which was given by the victim when he met her first and why did he allow four hours time to lapse. No witness has been examined to say that in his presence, this fardbeyan, (Ext.4) of the victim was recorded. PW 4, brother, in his examination in chief says that when he went to R.M.C.H. he found the victim being treated and he came to know from the Bhainuai, that an earthen lamp had fallen on her. then there was some improvement in her condition and when he asked her as to how it had happened, the victim had said that she had already given her statement to police, para 3. In paragraph 14 of his cross-examination, he says that when the statement of his sister was recorded,, he was not present there and he went there after the death of his sister to R.M.C.H. and his statement was taken separately. This, from his own statement, it is clear that when he met his sister, she had said that she has already made her statement to police and he was not present when his sister had given her statement.
14. Now it is surprising that Ext. 4 the fardbeyan, made by the deceased also bears the signature of this witness. In the background of his evidence, the Ext. A also becomes meaningless because he says that he came after the death of his sister, then the question that he got the information from his sister and he came to know of the occurrence did not arise. In this context, the evidence of PW 7, the I .O. requires consideration. At the relevant time, he was the Officer-in-charge of Basia P.S. in the district of Gumla, whereas the deceased’s fardbeyan, was recorded at R.M.C.H. Ranchi on 3.5.98, and he had received that fardbeyan, on 14.5.98, from the office of the Superintendent of Police. Why this Ext. 4 which was recorded on 3.5.98, took 11 day’s time in reaching Basia P.S. is not explained from the side of the prosecution.
Just to know the line of investigation, I just looked into the case diary. It appears on perusal of para 54 of the case diary that the fardbeyan, of Nazia Praveen was handed over to Md. Azad for delivering the same to the officer-in-charge of Basia P.S. and he has said to the I.O. that as there was shortage of constables, he has sent the fardbeyan, through Azad. This recording in the case diary is not an evidence. I have simply examined it to know as to what made the fardbeyan, reach after such a dealy. It had been found that Md. Azad had said that the fardbeyan, was not recorded in his presence and he had gone after the death of his sister, then it not believable that it was he who brought that to Basia P.S.
It is clear from the above evidence and circumstances that (i) the victim’s original oral statement was that she had sustained burn injuries herself, (ii) the fardbeyan, that was recorded, Ext. 4, was recorded after four hours of her aforesaid oral statement and thus, there was sufficient time to make improvement from the original one, (iii) the victim had changed her version under the pressure of the people of Azad Basti (iv) the fardbeyan was recorded by PW 10 under pressure (v) this doubt has not been explained as to how this fardbeyan, took II day’s time in reaching Basis P.S. (vi) no certificate of fitness from Doctor was taken and (vii) no witness was examined to say that the fardbeyan, was recorded in his presence. All these circumstances make the fardbeyan, (Ext, 4) a suspicious document and therefore answer to this question is that the fardbeyan, cannot be treated as dying declaration of the victim girl.
15. PW 7, the I.O. in paragraph 6 of his cross-examination, said that all the witnesses had said that the deceased Nazia Praveen was his wife. But the attention of none of the prosecution witnesses was drawn towards their earlier statement made before the I.O. and in absence of the witnesses being contradicted, mere statement of the I.O. has got no relevancy and cannot be relied upon.
16. In the result, I find that one of the most important ingredients to constitute an offence under Section 304B, IPC i.e., the marriage is not at all proved. Thus, I disagreeing with the finding of the learned trial Court, hold that charges under Sections 304B and 498A, IPC are not proved beyond reasonable doubt consequently, the convictions and sentences made under these two charges as ordered by the learned trial Court are set aside, The appeal is allowed. As the appellant Nos. 2 to 4 are on bait, they are discharged from the bail bonds. As the appellant No. 1, Imtiyaz Khan @ Sonu, is in jail, he is directed to be set at liberty forth with, if not wanted in any other case (s).