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SUPREME COURT OF INDIA
P. SATHASIVAM & RANJAN GOGOI, JJ.
MUSTAFA SHAHADAL SHAIKH - Appellant(s)
VERSUS
STATE OF MAHARASHTRA - Respondent(s)
Criminal Appeal No. 1406 of 2008
Decided On : 14-09-2012.
AIR 2003 SC 3828; (2004) 3 SCC 98 – Relied upon
(b) Indian Penal Code, 1860 – Section 304B r/w section 113B. Indian Evidence Act, 1872 – Torture for demand of dowry five days before death established – Proximity element of Section 304B of the Code and 113B of the Act satisfied – No infirmity in conviction. (Para 15)
(c) Indian Penal Code, 1860 – Section 304B – Minimum sentence of 7 years prescribed – Lesser sentence cannot be awarded. (Para 17)
Facts of the case:
Mustafa Shahadal Shaikh (A1) - the appellant-accused married one Hasina Mustafa Shaikh (since deceased). After marriage, Hasina was staying with the appellant in her matrimonial home. On 23.08.1989, when she was at her matrimonial home, she committed suicide by consuming poison and died. The appellant and his parents informed about her death to her family members.
Abdul Rahim Shaikh (PW-4) the grand-father of the deceased lodged an F.I.R. alleging torture and harassment faced by the deceased on account of demand for dowry.
Trial court while acquitting the sister (A-4) of the appellant convicted the appellant and his parents for the offence punishable under Sections 498-A and 304-B read with Section 34 of IPC.
During the pendency of the appeal before the High Court, the parents (A-2 and A-3) of the appellant expired and the High Court dismissed the appeal while confirming the conviction and sentence imposed by the trial Court against the appellant.
Finding of the case:
There is no infirmity in the impugned judgment.
Result: Appeal dismissed.
JUDGMENT
P. Sathasivam, J. - This appeal is directed against the judgment and order dated 28.11.2007 passed by the High Court of Judicature of Bombay in Criminal Appeal No. 891 of 1990 whereby the High Court confirmed the order of conviction and sentence dated 07.12.1990 passed by the 4th Additional Sessions Judge at Kolhapur against the appellant herein.
2. The facts and circumstances giving rise to this appeal are as under :
(a) On 26.01.1989, Mustafa Shahadal Shaikh (A1) - the appellant-accused married one Hasina Mustafa Shaikh (since deceased) at Tembalalwadi, Dist. Kolhapur, Maharashtra. After marriage, Hasina was staying with the appellant in her matrimonial home at Ujalawadi Taluka Karveer, Dist. Kolhapur, Maharashtra. On 23.08.1989, when she was at her matrimonial home, she committed suicide by consuming poison. She was taken to CPR Hospital at Kolhapur where the doctor declared that she was brought dead. The appellant and his parents informed about her death to her family members.
(b) On the same day, Abdul Rahim Shaikh (PW-4) the grand-father of the deceased lodged an F.I.R. at Karveer Police Station, Kohlapur alleging torture and harassment faced by the deceased on account of demand for dowry. On the basis of the said report, C.P. No. 186/89 (Exh.20) was registered against the appellant and his family members for the offence punishable under Sections 306, 304-B and 498-A read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”).
(c) The case was committed to the Court of Sessions and numbered as Sessions Case No. 7 of 1990 and A-1 Husband, A-2 Father, A-3 Mother, A-4 sister-in-law were arrayed as accused nos. 1 to 4. During the trial, prosecution examined 12 witnesses and marked several documents. By order dated 07.12.1990, the 4th Additional Sessions Judge, while acquitting the sister (A-4) of the appellant herein, convicted the appellant and his parents for the offence punishable under Sections 498-A and 304-B read with Section 34 of IPC and sentenced them to suffer RI for 1 year along with a fine of Rs.1,000/-, in default, to further under RI for 6 months and RI for 7 years respectively.
(d) Being aggrieved, the appellant and his parents preferred Criminal Appeal No. 891 of 1990 before the High Court of Bombay. During the pendency of the appeal before the High Court, the parents (A-2 and A-3) of the appellant expired and the appeal against them stood abated. By the impugned judgment dated 28.11.2007, the High Court dismissed the appeal while confirming the conviction and sentence imposed by the trial Court against the appellant.
(e) Aggrieved by the said judgment, the appellant has preferred this appeal by way of special leave before this Court.
3. Heard Mr. Sudhanshu S. Choudhari, learned counsel for the appellant- accused and Mr. Sachin J. Patil, learned counsel for the respondent-State.
Discussion:
4. The only point for consideration in this appeal is whether the prosecution has made out a case in respect of the charges leveled against the appellant relating to Section 304B and 498A IPC.
5. In support of the above charges, the prosecution heavily relied on the complaint (Exh. 20), the evidence of PWs 4, 6, 7 and 9 and other relevant circumstance, viz., the death occurred on 23.08.1989 i.e. within a period of 7 months from the date of marriage i.e. 26.01.1989.
6. Before considering the prosecution case as well as the defence pleaded, it is desirable to extract the relevant provisions of Section 304B which relates to Dowry death. “304B. Dowry death.
(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have c
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