Irashad vs State Of U.P. on 24 November, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

AFR

Court No. – 31

Case :- CRIMINAL APPEAL No. – 43 of 2002

Appellant :- Irashad

Respondent :- State Of U.P.

Counsel for Appellant :- K.K.Tewari,N.Shritria,Rakesh Srivastava,Vivek Shrotia

Counsel for Respondent :- Govt.Advocate

Hon’ble Dinesh Kumar Singh,J.

1. Heard learned counsel for the accused-appellant, learned AGA for the State and perused the record.

2. This appeal is directed against the judgment and order dated 09.01.2002 passed by IInd Additional Sessions Judge, FTC No.2, Unnao, in Session Trial No.29 of 1999. The accused appellant has been convicted under Section 304-B IPC and sentenced to undergo eight years rigorous imprisonment. The other three accused namely Naushad (elder brother) Smt Hamidan (mother) and Jalil Shah (father) of the accused appellant have been acquitted of all the charges.

3. The prosecution story as emerges is that Mehnaz (deceased) who got married to the accused-appellant three months before the date of incident i.e.31.8.1998 died out of the burn injuries on the spot. After receiving the information complainant, the mother of Shahnaz and mother-in-law of the accused-appellant along with PW2 (Rajjab Ali) visited hospital at Unnao where they found dead body of the deceased lying sealed. On 01.09.1998 when the complainant along with P.W.2 who happened to be her another son-in-law visited the hospital at Unnao they did not make any complaint in respect of the death of the deceased. However, thereafter on 03.09.1998, a written complaint was given to the Superintendent of Police, Unnao alleging that Mehnaz used to be tortured for demand of dowry by accused-appellant-husband, mother-in-law and father-in-law and brother-in-law of the deceased. They used to demand one gold chain, one gold ring and Rs.10,000/- cash and since, she being the poor and widow lady living in a hut having no means to satisfy the demand of the dowry of the accused-appellant, she could not fulfills the demand of dowry of the accused named in the complaint.  The First Information Report was lodged on the basis of the said complaint alleging that the deceased was burnt alive by the accused by putting her fire after pouring kerosene oil on her body.

4. The prosecution examined in all six witnesses. P.W.1. The complainant and PW2 Rajjab Ali are the witnesses of fact. P.W.1 in her statement specifically said that she does not have a house, she does not have any agricultural land and she barely meets her both ends. She made her financial condition known to the accused-appellant and others who were named in the First Information Report that she was very poor and she would not be able to give any dowry. Despite knowing fully well the financial condition, the accused persons agreed for marriage and the marriage was performed.

5. She further said that no FIR was lodged earlier by her with respect to demand of dowry by the accused. Though Naushad Ali the elder brother of the accused-appellant was named in the First Information Report but she did not know whether he along with his wife and children was living with the accused appellant and his parents or not. She also did not know where the dead body of the deceased Mehnaz was buried. She denied suggestion that there was no demand of dowry and Mehnaz never complaint.

6. P.W.2, who was the other son-in-law of the PW1 deposed to the effect that he was aware of the fact that accused-appellant was working in Mirza Tannery but with respect to Naushad whether he was living with the accused appellant or his parents or he was living separately, he said that he was not aware of. He had never visited the residence of the accused-appellant. His evidence is completely vague except for that the accused-appellant and others named in the First Information Report used to demand dowry of one gold chain, one ring and Rs.10,000/-.He did not give any particulars when the said fact was told to him by the deceased and when and where did he meet the deceased.

7. The inquest report which was prepared on 01.09.1998 clearly says that in the opinion of inquest witnesses, the cause of death was the fire which got generated at the time of cooking food by the deceased and out of the fire the whole house as well as the deceased got burnt and she died out of the burn injuries.

8. The post mortem was conducted on the next date i.e. 02.09.1998 and the cause of death was burn injuries. The doctor who conducted the post mortem specifically said that he did not notice any smell of kerosene oil from the body of the deceased.

9. The trial Court after considering the aforesaid evidence did not believe the case of the prosecution that there was demand of dowry by the three accused named in the First Information Report and therefore, they were acquitted of the charge under Section 304-B of IPC. On the basis of the aforesaid evidence, only the accused-appellant was convicted under the aforesaid provision of the Indian Penal Code and given sentence of eight years rigorous imprisonment.

10. Shri Rakesh Srivastava, learned Advocate appearing for the accused -appellant makes the following submissions:-

(a) There is no explanation for delay in lodging the First Information Report and the explanation furnished by the PW1 that she was caught in the flood cannot be believed inasmuch as she along with PW2 visited the hospital at Unnao where the dead body of the deceased was lying on 1.9.2009 but she did not make any complaint or went to the police station to register the First Information Report on 01.09.1998 and therefore, the explanation furnished by P.W.1 for delay in lodging the First Information Report cannot be believed.

(b) In the inquest report, the opinion of the inquest witnesses as well as the Magistrate was to the effect that the whole house caught fire because of the fire generated during cooking of food by the deceased and she also got burnt when the accused appellant had already left to attend his duty at Mirza Tannery and his parents were away at field. The inquest witnesses as well as the Magistrate did not notice that this is a case of murder by setting the deceased on fire after pouring kerosene oil;

(c) The inquest report is supported by the post mortem report and the deposition of Doctor who conducted the post mortem. Dr. who conducted the post mortem specifically said that he did not notice any smell of kerosene oil from the body of the deceased. Learned counsel for the appellant submits that the allegation that deceased was set on fire after pouring kerosene oil on her is totally concocted and false.

(d). P.W.1 who happens to be the mother of deceased specifically stated that her financial condition was very poor. She did not have house or agricultural land and barely she could manage her both ends and this financial condition was made known to the accused-appellant and his family before marriage and knowing fully well the financial condition of PW1, they agreed for marriage and marriage was performed. He submits that if the poor financial condition was known to the accused-appellant and his family members, there could not have been any demand of dowry as she could not have met the demand. Therefore, the trial court has rightly did not frame the charge under section 498-A IPC against the accused.

(e). In absence of charge under Section 498-A, the trial court has seriously erred firstly in framing the charge under section 304B IPC and then convicting the accused appellant alone under the said provision.

(f). If on the basis of the same evidence, the three other accused have been acquitted, the allegation and evidence being the same against all the accused, the conviction of the accused-appellant alone cannot be sustained and therefore, the trial court’s judgment and order convicting him is wholly incorrect and liable to be set aside and the accused-appellant is to be acquitted.

11. On the other hand, Mr. Abhayveer Singh, learned AGA submits that from the statement of P.W.1 and P.W.2, it is proved that the deceased was subjected to cruelty for dowry demand and her death is unnatural death within seven years, the statutory period prescribed under Section 498-A and section 113-B of the Indian Evidence Act, for presumption of dowry death and onus was on the accused appellant to prove that there was no dowry demand and the deceased was not subjected to cruelty for dowry. The accused -appellant has not been able to discharge the burden of onus successfully. Therefore, the appeal is liable to be dismissed.

12. I have considered the arguments of learned Advocates representing the accused-appellant and the State.

13. The trial court has acquitted three other accused, even the present accused-appellant has not been convicted under Section 498A IPC and has been convicted only under section 304-B of IPC.

14. The questions need to be answered in this appeal are :-

(i) whether in absence of charge and conviction under Section 498-A IPC, the conviction under section 304-B IPC is in accordance with law?

(ii) Whether when the trial Court had acquitted three accused who were also charged along with accused appellant under section 304-B IPC, could the accused appellant be convicted for committing the said offence on the basis of the same evidence particularly when the same allegation was against all the accused was one omnibus ?

(iii) Whether the prosecution has been able to prove the dowry demand and cruelty/harassment of the deceased for dowry before death ?

15. Section 464 (1) of Cr.P.C.,1973 reads as under :-

“464. Effect of omission to frame, or absence of, or error in, charge.

(1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.”

From the bare perusal of the aforesaid section, it is clear that a conviction would be valid even if there is any omission or irregularity in framing of the charge provided it did not occasion a failure of justice.

16. In the present case, it is not in dispute that death of the deceased was within seven years of marriage and the allegation was that she was killed by the accused named in the FIR by setting her on fire after pouring kerosene oil on her body for not meeting their dowry demand. The charge was not framed under section 498-A IPC and the only charge was framed under Section 304-B IPC against all the accused including the appellant. This omission of framing charge under Section 498-A IPC can be said to be mere a defect in framing of the charge. If the conviction otherwise, for the offence has been found to be proved on the basis of the evidence on record. However, in the present case, the accused appellant has not been convicted under section 498-A IPC.

17. In the case of Shamnsaheb M. Multtani vs. State of Karnataka (2001) 2 SCC 577 which has been reiterated in Narwinder Singh Vs. State of Punjab reported in (2011) 2 SCC 47, the Court has observed in paras 21, 22 and 23 as hereinbelow:-

“21. The crux of the matter is this: Would there be occasion for a failure of justice by adopting such a course as to convict an accused of the offence under Section 304-B IPC when all the ingredients necessary for the said offence have come out in evidence, although he was not charged with the said offence? In this context a reference to Section 464(1) of the Code is apposite: “464. (1) No finding, sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby”.

22. In other words, a conviction would be valid even if there is any omission or irregularity in the charge, provided it did not occasion a failure of justice.

23. We often hear about “failure of justice” and quite often the submission in a criminal court is accentuated with the said expression. Perhaps it is too pliable or facile an expression which could be fitted in any situation of a case. The expression “failure of justice” would appear, sometimes, as an etymological chameleon (the simile is borrowed from Lord Diplock in Town Investments Ltd. v. Deptt. of the Environment). The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage.”

17. If on meticulous scrutiny of the entire evidence on record, it is found that the deceased was not subjected to cruelty for dowry then the ingredients of Section 304-B IPC are not attracted and the accused cannot be held guilty for committing offence under Section 304-B IPC. The cruelty or harassment sans any dowry demands which drives the wife to commit suicide may attract the abetment of suicide under Section 306 IPC but not the offence under Section 304 -B IPC which defines offence and punishment for dowry death.

18. It is trite law that even if the charge is not framed under Section 498-A, but there is evidence of dowry demand and cruelty to the victim to fulfill the dowry demand, in the absence of charge under section 498-A, the accused can be held guilty under Section 304-B provided there is convincing evidence that such cruelty was for or had any connection with the dowry soon before the death.

19. It also does not require any further exposition that if there was no evidence with regard to cruelty and demand of dowry immediately before the incident, the charge under Section 498-B/498-A fails and the accused cannot be convicted and such a conviction of the accused cannot be held to be proper.

20. From the evidence on record, it is clear that the complainant’s financial condition was extremely poor inasmuch as she did not have her own house to live in, no means of livelihood or any agricultural holding and this financial condition was very well known to the accused before marriage. Despite knowing the financial condition of the complainant, the mother of the deceased who was widow, the accused agreed for marriage with the deceased.

21. If a person is not in a position to fulfill the demand of dowry and financial condition is known, the husband or his relative would not demand dowry. It does not appeal to reason that when a person is known to have no means to fulfill the dowry demand, still dowry would be demanded and wife would be subjected to cruelty.

22. The evidence of the P.W.1 and P.W. 2 with respect to the demand of dowry is wholly unreliable and not convincing. Secondly, the allegation was that the accused set the deceased on fire after pouring Kerosene Oil but this story has not found support from the medical evidence inasmuch as the doctor who conducted the post mortem report specifically depose that he did not smell any kerosene oil from the body of the deceased while conducting the post mortem.

23. The FIR was lodged after consultation and deliberations. The accused has visited the hospital where the dead body of the deceased was lying but she never chose to make any complaint regarding foul play or involvement of the accused appellant in causing death of the deceased when she visited the hospital on 01.09.1998. Three days thereafter, the complaint was sent to the Superintendent of Police, there is no plausible explanation for the said delay in sending the complaint or lodging the FIR.

24. From the record, it is clear that the FIR was registered after the complaint was sent to the Superintendent of Police after deliberation and taking legal advice to frame the accused appellant and his family.

25. The inquest witness and the Magistrate who saw the scene of occurrence and were of the clear opinion that death was an accidental death and it was neither suicide nor murder. This inquest report has got support from the medical evidence.

26. Section 304-B of IPC reads as under:-

Section 304-B. (I) 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 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 caused her death.

Explanation.-For the purposes of this sub-section, “dowry” shall have the same meaning as in S.2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.”

27. In this case, the trial court framed charge against the accused persons only under Section 304-B IPC. If there was no dowry demand, then merely because death occurred within the period of seven years of the marriage, charge under section 304 B IPC is not sustainable. The trial court has committed manifest error in convicting and sentencing the accused-appellant under section 304-B IPC. The impugned judgment cannot be upheld.

28. From the evidence, it is clear that the death occurred because of fire which got generated while the deceased was cooking food and her in laws were in field and the accused appellant was at his place of employment i.e. Mirza Tannery and death has not been occurred by pouring kerosene oil as alleged by the prosecution.

29. I have carefully considered the evidence available on record and I am of the opinion that death of the deceased was neither suicide nor murder and it was an accident. The prosecution story of demand of dowry and subjecting the deceased to cruelty before death is also unbelievable.

30. For the aforesaid reasons, the trial court’s judgment and order dated 09.01.2002 passed by IInd Additional Sessions Judge, FTC No.2, Unnao is set aside and the appeal is allowed.

31. The accused-appellant is acquitted of the charge. His bail bonds are cancelled and sureties are discharged.

Order Date :- 24.11.2017

Pks

 

 

Leave a Comment

Your email address will not be published. Required fields are marked *