Mohammad And Others vs State Of U.P. on 21 December, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Judgment Reserved on : 13.12.2017

Judgment Delivered on : 21.12.2017

In Chamber

Case :- CRIMINAL APPEAL No. – 7087 of 2010

Appellant :- Mohammad And Others

Respondent :- State Of U.P.

Counsel for Appellant :- Abhishek Mishra, Jai Shanker Malviya, M.A.Khan, Neeraj Ahmad Khan, Rajeshwar Singh, Saiful Islam Siddiqui, Tahira Kazmi

Counsel for Respondent :- Govt.Advocate

Hon’ble Umesh Chandra Tripathi,J.

1. This appeal is directed against the judgment and order dated 15.10.2010 passed by Additional Sessions Judge, Court No. 13, Moradabad, in Sessions Trial No. 286 of 2003 (State of U.P. Vs. Afsar and others) arising out of Crime No. 477 of 2002 Police Station- Asmoli, District- Moradabad, whereby accused-appellants- Mohammad, Babu, Smt. Mehroj and Smt. Dilwari have been convicted and sentenced as follows:

(a) Ten years’ rigorous imprisonment under Section 304B of the Indian Penal Code (hereinafter referred to as ‘IPC’).

(b) Two years’ rigorous imprisonment and a fine of Rs. 5,000/- and in case of default in payment of fine, two months’ additional imprisonment under Section 498A IPC.

(c) Two years’ rigorous imprisonment and a fine of Rs. 2,000/- and in case of default in payment of fine, one month additional imprisonment under Section 3/4 of Dowry Prohibition Act.

All the sentences were directed to run concurrently.

2. Brief facts of the prosecution case, as discernible from record, are that on 23.09.2002 at 08.05 P.M., informant Chotey s/o Roshan Teli lodged a written report at Police Station- Asmoli, District- Moradabad with the complaint that about seven months ago, he got his daughter Nasreen married, as per wedding rituals of Islam, to one Shakir s/o Afsar r/o Village Bela ki Madhaiya, Police Station- Asmoli, District- Moradabad. He had given dowry to the best of his capacity. Dowry articles included a watch, bicycle, bed, clothes, utensils, jewellery, etc. Two months thereafter, Nasreen’s husband Shakir, her brothers-in-law Mohammad and Babu, her father-in-law Afsar, her sister-in-law Mehroj and her mother-in-law Smt. Dilwari started demanding dowry from her and also assaulted her. After three months of the marriage, she was thrown out of her matrimonial home and was told to bring a motorcycle as dowry. But the informant (Nasreen’s father) and his wife were not in a position to give a motorcycle as dowry. For the next three months, Nasreen lived in her paternal home. About 15 days before, her husband Shakir, her father-in-law Afsar, her mother-in-law Smt. Dilwari came to her village and asked co-villagers Liyakat Hussain s/o Allah Baksh and Amin s/o Kallan to send back Nasreen to her in-law’s home, but Nasreen refused to go back and she was afraid of getting beaten up by her in-laws in connection with dowry demand. But she was convinced by the villagers and was send back to her in-law’s home. Today, Dr. Saudas of village Bela ki Madhaiya came to the house of the informant and told him that his daughter was being murdered at about 04.00 P.M. Shakir and his family members are also absconding. Then the informant along with some co-villagers reached village Bela ki Madhaiya and came to know that his daughter Nasreen was first strangulated and was then assaulted with blows of ‘daranti’ (sickle) by her husband and in-laws, due to which she died. Report be lodged and action be taken. The written report is on record and the same is marked as Ex.Ka.1.

3. On the basis of written report of informant Chotey, a chik First Information Report (F.I.R.) was lodged on the same day (23.09.2009) at 20.05 hours (08.05 P.M.) at Police Station- Asmoli, District- Moradabad under Section 304B IPC against accused Shakir, Afsar, Mohammad, Babu, Smt. Mehroj and Smt. Dilwari. The chick F.I.R. is on record and the same is marked as Ex.Ka.11 Thereafter, investigation of the case was started.

4. Investigation of the case was taken over by Investigating Officer C.O. Ram Murti Yadav, who proceeded to the spot and after inspection, prepared relevant papers, viz. site plan (Ex.Ka.9), inquest report (panchayatnama) (Ex.Ka.3), recovery memo of blood-stained ‘gadda’, ‘darati’ and blood-stained strip of ‘charpai’ (Ex.Ka.13), recovery memo of bangles (Ex.Ka.14).

5. In the opinion of the inquest witnesses, it was thought proper to send the dead body for autopsy. In the process, relevant papers were prepared, viz. letter to C.M.O. (Ex.Ka.6) and letter to R.I. (Ex.Ka.4).

6. Post mortem on the cadaver of the deceased Smt. Nasreen was conducted on 24.09.2002 at about 03.15 P.M. by Dr. Megh Singh, who noted the following ante-mortem injuries on the person of the deceased :-

1. Multiple penetrating wound, 7.0 in numbers present over front of neck – in the area of 7 x 5 cms., the size of largest wound is 3.5 cm. x 1.0 cm. x Trachea deep and the smallest size of wound is 1.0 cm. x 1/2 cm. x Trachea deep. Right sided – carotid artery ruptured and lacerated.

2. Contusion 20 cm. x 3 cm. present over both side and front of neck over – lapping injury no. 1.

Gravid uterus with dead female foetus having bodily length – 28 cms., weight- 520 gms., age about six months was found.

Opinion: In the opinion of the doctor, cause of death is due to shock and haemorrhage as a result of ante-mortem injuries. Death of deceased is possible on 23.09.2002 at 04.00 P.M.

The postmortem report is on record and the same is marked as Ex.Ka.2.

7. After completion of investigation, Investigating Officer filed a charge-sheet against accused-appellants- Mohammad, Babu, Smt. Mehroj and Smt. Dilwari under Sections 498A, 304B IPC and Section 3/4 Dowry Prohibition Act. The charge-sheet is on record and the same is marked as Ex.Ka.10. Shakir, husband of deceased Smt. Nasreen was juvenile in conflict with law, therefore, his case was transferred to Juvenile Justice Board for trial.

8. Consequent thereupon, committal proceedings took place and the case was committed to the Court of Sessions. Thereafter, it was made over for trial and disposal to the court of Additional Sessions Judge, Court No. 13, Moradabad. Accused were heard on point of charge and the trial court was prima facie satisfied with the case against the accused. Therefore, it framed charges against them under Sections 304B IPC, 498A IPC and Section 3/4 Dowry Prohibition Act. Charges were read over and explained to the accused, who pleaded not guilty and claimed to be tried.

9. The prosecution in order to prove guilt of the accused examined seven prosecution witnesses, out of whom, informant Chotey (father of deceased) (P.W.1), Liyakat Hussain (P.W.2) were examined as witnesses of fact, whereas Dr. Megh Singh (P.W.3), Rajeev Pandey (tehsildar) (P.W.4), Circle Officer Ram Murti Yadav (I.O.) (P.W.5), HCP Ganga Singh (head moharir) (P.W.6) and S.I. Dhirendra Kumar Singh (P.W.7) were examined as formal witnesses.

10. Except as above, no other witness was adduced, therefore, evidence for the prosecution was closed and statements of the accused were recorded under Section 313 of Cr.P.C, wherein, they claimed to have been falsely implicated.

11. In turn, the defence examined Saudas Singh (D.W.1), Munbbar (D.W.2), Yusuf Hussain (D.W.3) and Senior Supply Inspector P.K. Sharma (D.W.4) as defence witnesses.

12. Learned trial Judge after considering the case on its merit passed aforesaid finding of conviction and passed the impugned judgment and order.

13. Aggrieved by the order of learned trial Judge, the accused-appellants have preferred the instant criminal appeal.

14. Heard Sri Saiful Islam Siddiqui and Ms. Tahira Kazmi, learned counsel for the appellants and Sri L.D. Rajbhar, learned Additional Government Advocate for the State of Uttar Pradesh.

15. It is contended by learned counsel for appellants that the appellants were living separately from Shakir and his wife deceased Nasreen. Dead body of the deceased was found in the room of her husband Shakir. The prosecution has failed to prove guilt of the accused-appellants beyond reasonable doubt. Without properly appreciating the evidence on record, the learned trial court has passed the impugned order and as such, the same is liable to be set aside.

16. Apart from arguing on the merits of the case, learned counsel for the appellants further contended that the accused-appellants have completed more than seven years of their sentence, therefore, their sentence should be reduced to the period already undergone by them.

17. Per contra, learned A.G.A. contended that there is no infirmity in the impugned order passed by the trial court and as such, the same is liable to be upheld.

18. To appreciate the arguments of the parties and also the evidence, it is necessary to look into the statutory provisions of Section 304B IPC and Section 113B of the Evidence Act (hereinafter referred to as ‘the Act’). Provisions of Section 304B IPC reads as follows:

[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 caused her death.

Explanation.–For the purpose of this sub-section, “dowry” shall have the same meaning as in section 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.]

Section 113B of the Act reads as follows:

[113B. Presumption as to dowry death.–When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation.–For the purposes of this section, “dowry death” shall have the same meaning as in section 304B, of the Indian Penal Code, (45 of 1860).]

19. As per definition of dowry death under Section 304B IPC and the wording in the presumptive Section 113B of the Act, if it is proved that death of woman is caused by any burn 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 (i) She was subjected to cruelty or harassment by her husband or his relatives; (ii) Such cruelty or harassment was for, or in connection with, demand of dowry; and (iii) Such cruelty or harassment was soon before her death; then it becomes obligatory on the court to raise a presumption that accused caused dowry death.

20. As per postmortem report Ex.Ka.2 and statement of Dr. Megh Singh, cause of death of deceased Smt. Nasreen was shock and haemorrhage as a result of ante-mortem injuries. Death of the deceased was possible on 23.09.2002 at about 04.00 P.M.

21. From the perusal of postmortem report, it appears that deceased Smt. Nasreen was murdered brutally as there were multiple penetrating wounds, seven in number, present on the front of her neck. This fact is not denied by the appellants. Learned counsel for the accused suggested to P.W.1 Chotey that his sons-in-law Sharawat and Liyakat have caused death of Smt. Nasreen. This shows that death of deceased is homicidal and not suicidal.

22. Prosecution witnesses P.W.1 Chotey (father of deceased) and P.W.2 Liyakat Hussain have proved this fact that marriage of Smt. Nasreen was solemnized with Shakir seven months before her death. This fact has also been admitted by the appellants in their statement recorded under Section 313 Cr.P.C. Therefore, it is proved beyond doubt that Smt. Nasreen died within seven years of her marriage and her death was caused otherwise than under normal circumstances.

23. Now, it has to be seen that soon before her death, deceased Smt. Nasreen was subjected to cruelty or harassment by her husband and his relatives in connection with demand of dowry. According to the principle laid down by Hon’ble The Apex Court, once prosecution proved that where death of woman has occurred otherwise than under normal circumstance within seven years of her marriage and she was subjected to cruelty and harassment by her husband and the relatives of her husband soon before her death in connection with demand of dowry, then heavy burden of proof lies upon accused to adduce evidence dislodging his guilt, beyond reasonable doubt.

24. P.W.1 Chotey in his statement before the Court has admitted that no demand of dowry was made by Shakir, husband of the deceased or any of his relatives at the time of marriage. According to this witness, two months after the marriage the accused appellants and Shakir, the husband of the deceased started demanding motorcycle from the deceased and consequently assaulted and harassed the deceased for fulfilment of the aforesaid demand of dowry. Three months after her marriage, Smt. Nasreen was expelled from her matrimonial home by the accused-appellants after having been assaulted by her husband and the other accused-appellants. Thereafter, Smt. Nasreen started living at her parental home and stayed there for three months. 15 days before the date of occurrence, Smt. Nasreen went to her matrimonial home in the company of her husband, father-in-law and mother-in-law. There is no allegation in the testimony of P.W.1 that the husband Shakir and the accused-appellants demanded dowry or harassed the deceased in connection with the demand of dowry in this period of 15 days.

25. P.W.1 Chotey has further stated that the demand of dowry by way of a motorcycle was made by the accused-appellants only in the third month after marriage and in connection with the same his daughter Smt. Nasreen was harassed.

26. P.W. Chotey has also admitted in his statement that at the time of marriage, he had given a watch, bicycle, bed and clothes, etc. No demand of dowry was made by any of the in-laws at the time of marriage. The demand of motorcycle by the in-laws, after two months of marriage, from a person who has given only a watch, bicycle, bed and clothes neither appears to be natural nor probable.

27. Another aspect of the matter which further requires to be taken note of is that 15 days before the date of occurrence, Shakir, husband of the deceased along with his father Afsar and mother Smt. Dilwari came to the residence of P.W.1 and requested P.W.1 Chotey to send his daughter to her matrimonial home. Accordingly, Smt. Nasreen went to her matrimonial home. Even at this time, no demand of dowry is alleged to have been made. Furthermore, there is no evidence on record to show that the deceased was treated with cruelty by her in-laws during this period of 15 days of occurrence, or any demand of dowry was made.

28. Here it must be noted that no specific role has been assigned to the accused-appellants- Mohammad, Babu, Smt. Mehroj and Smt. Dilwari for demand of dowry. Name of accused-appellant who demanded motorcycle as dowry has not been specified by the prosecution. General allegation of demanding dowry has been made against husband, his father, mother, brothers and wives of brothers (‘bhabhi’). Our social system is changing at a rapid pace. In the 21st century, the concept of joint family has totally changed. Today, there are very few families which have a joint living. Nowadays, every person likes to live separately from his brother, sister and other family members. In such a social system, unless specific allegation has been made, except the husband, father-in-law and mother-in-law, no other relative of the husband should be made responsible for demand of dowry, cruelty or harassment.

29. In the present case, except husband Shakir, no other person was beneficiary of demand of a motorcycle as dowry. There was no reason for the accused-appellants to demand a motorcycle as dowry from deceased Smt. Nasreen.

30. Smt. Nasreen lived at her parental home for three months. After that, she went to her matrimonial home. 15 days thereafter, she died. There is also no evidence on record to show that in between three months and 15 days, any demand of dowry had been made to her or she was subjected to cruelty or harassment by her husband Shakir or accused-appellants.

31. P.W.1 Chotey has admitted in his cross-examination that accused-appellants Mohammad, Babu and Smt. Mehroj lived in separate rooms. When questioned by learned counsel for the accused whether accused Mohammad and Babu lived separately from deceased Smt. Nasreen and her husband Shakir, P.W.1 Chotey replied that this fact is not known to him.

32. P.W.5 Investigating Officer C.O. Ram Murti Yadav has shown in site plan Ex.Ka.9 that the houses of accused-appellants Mohammad and Babu were separate from that of Shakir.

33. D.W.4 P.K. Sharma, Senior Supply Inspector has proved this fact that accused-appellant Babu, his wife Smt. Mehroj and his children had a separate ration card. This also shows that accused-appellant Babu was living separately from Shakir.

34. P.W.1 Chotey admitted this fact that he has two wives. From his first wife, he has four daughters, all of whom have been married and from his second wife, he has one daughter Smt. Nasreen. He has no male issue. He is the owner of a land of about 25 bigha. He was intended to distribute his landed property amongst his daughters equally. He further admitted the fact that Liyakat and Sharawat are his sons-in-law (‘damad’). Liyakat lived with him and took care of his property.

35. Learned counsel for accused suggested P.W.1 Chotey that Liyakat and Sharawat have committed murder of Smt. Nasreen to grab her property. But this suggestion has been denied by P.W.1 Chotey.

36. On the basis of this fact, learned counsel for the appellants contended that deceased Smt. Nasreen might have been murdered by these two persons (Sharawat and Liyakat). But, only on the basis of these suggestions and motive, it cannot be presumed that Sharawat and Liyakat had murdered Smt. Nasreen.

37. Smt. Nasreen was murdered in her room. That room was in the house of her husband Shakir. It is the duty of husband Shakir to explain the cause of death of Smt. Nasreen, which is not explained by him. Accused-appellants Mohammad, Babu and Smt. Mehroj were living in a separate house from deceased Smt. Nasreen and her husband Shakir. They might have the knowledge about cause of death of deceased Smt. Nasreen, being her neighbours and it is also expected from them to explain the circumstances under which deceased Smt. Nasreen has been murdered. Smt. Dilwari, mother-in-law of deceased Smt. Nasreen is also expected to explain the same. But only because they have not explained the cause of death of Smt. Nasreen, it cannot be presumed that they have committed dowry death of Smt. Nasreen.

38. This is a case of daylight murder. The Investigating Officer must have tried to investigate the case, thoroughly and properly, to come to a conclusion as to who had committed the murder and the motive behind it. He should not have restricted the investigation only up to dowry death. Unfortunately, he failed to perform his duties properly.

39. For the aforesaid reasons, I am of the view that the prosecution has not shown, even by preponderance of probability, that soon before her death, deceased Smt. Nasreen was treated with cruelty or harassed by accused-appellants Mohammad, Babu, Smt. Mehroj and Smt. Dilwari in connection with demand of dowry. The trial court while recording conviction against the appellants failed to properly appreciate the evidence, facts and circumstances of the case and recorded erroneous finding of conviction, which cannot be sustained.

40. Accordingly, the appeal is allowed. Conviction of appellants – Mohammad, Babu, Smt. Mehroj and Smt. Dilwari under Sections 498A, 304B IPC and Section 3/4 of Dowry Prohibition Act is hereby set aside and they are acquitted.

41. If appellants Mohammad, Babu and Smt. Mehroj and Smt. Dilwari are on bail, they need not surrender. If they are in jail, they shall be set free forthwith, if not wanted in any other case.

42. Office is directed to send a certified copy of this order to Sessions Judge, Moradabad for its compliance. Let the lower court’s record be remitted back to the court concerned.

Order Date :- 21.12.2017

I. Batabyal

[Umesh Chandra Tripathi,J.]

 

 

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