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Bechu @ Jabir vs State Of U.P. on 8 March, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Reserved AFR

Court No. – 31

Case :- CRIMINAL APPEAL No. – 943 of 2003

Appellant :- Bechu @ Jabir

Respondent :- State Of U.P.

Counsel for Appellant :- Anil K.Tripathi,Rama Raman Mishra

Counsel for Respondent :- Govt.Advocate

Hon’ble Dinesh Kumar Singh,J.

1. The present appeal arises out of the impugned judgment and order dated 02.06.2013 passed by the Additional District and Sessions Judge (FTC V), Court No. 14, Sultanpur in Sessions Trial No. 270/2000 under Sections 498-A and 304-B of the Indian Penal Code (hereinafter ”IPC’) read with Section3-4 of the Dowry Prohibition Act, 1961 (hereinafter ”DP Act’).

2. The factual matrix out of which the present appeal has arisen are laid down as follows. On 21st March, 2000, the complainant, PW1, Mohd. Shabbir, submitted a written complaint (Exhibit Ka-1) at P.S. Gosainganj, Distt. Sultanpur. The contents of the complaint are laid down as follows:

(a) The complainant had had gotten his niece, Kaisar Bano (hereinafter ”The Deceased’) married to the accused appellant, Bechu, one and half years ago. However, after the elapse of a certain period of time, the deceased started getting subjected to torture with the intention of extorting dowry items such as a cycle, watch and other material objects from her and her family by the accused appellant’s family. The deceased informed her family of the same during one of her visits to her maternal home. The deceased’s family, in order to amicably settle the difference, gifted the accused appellant a watch and further undertook to gift him a cycle in the near future. However, since the complainant’s elder brother and father of the deceased, Mohd. Jalil did not reside with the family and used to reside in Jabalpur, Madhya Pradesh due to employment related reasons, he could not furnish the dowry items to the accused appellant’s family within the promised period.

(b) The complainant alleges that the accused appellant along with his family, aggrieved upon the non-receipt of the dowry items as promised, set the deceased on fire at 4:00 P.M. on 16th March, 2000. Subsequent to this, the accused appellant along with his family brought the deceased in a badly injured condition to the hospital without informing anyone, including the deceased’s family. The deceased is believed to have passed away on the same day. Therefore, the complainant had reasons to believe that the deceased was murdered by the accused appellant along with his family by setting her ablaze.

3. On the basis of the aforementioned complaint, FIR lodged at Case Crime No. 101/2000 under Sections 304-B, 498-A, IPC read with Section 3-4 of the DP Act (Exhibit Ka-3) was registered at the police station.

4. The post-mortem of the deceased’s body was conducted on 17.03.2000 by Dr. S.K. Yadav, PW 3. (Exhibit Ka-2). The post mortem report revealed deep burn injuries all over the body, except on the buttocks and the posterior part of the thighs. As per the said report, the cause of death was shock incurred due to the anti-mortem burn injuries. After conducting an investigation of the crime registered by way of the aforementioned FIR, the I.O., Mr. Ashok Kumar (Deputy SP) who is also PW4 submitted a charge-sheet (Exhibit Ka-14) against the accused appellant along with two others, namely, Azaad and Yousuf under the aforementioned sections of the IPC and DP Act.

5. The learned Session’s judge, while trying the accused upon the said chargesheet, framed charges under the Section 304-B and in the alternate, Section 302 r/w Section 34 of the IPC along with Section 3-4 of the DP Act.

6. PW1, in his statement before the Hon’ble Sessions Court, reiterated the contents of the complaint, alleging the accused appellant and his family’s involvement in the demise of the deceased. During his examination in chief, he testified against the accused stating that after the elapse of a month from the date of the marriage, the accused appellant along with his family had started subjecting the deceased to torture and cruelty with the aim of extorting dowry items such as a watch, cycle etc. from the deceased’s family. He stated that the accused appellant resided with Ibrahim, father of the accused, along with accused Yousuf (Ibrahim’s brother) and Yousuf’s son, accused Azaad. He alleged that all these people were party in inflicting torture and cruelty upon the deceased. The complainant further alleged that the deceased was forced to return to her parental home due to being subjected to cruelty and torture and it was during this visit, the deceased narrated her ordeal to the family.

7. However, during the complainant’s cross examination, he stated that his village was 30-40 kms from the accused appellant’s village and therefore, he was not fully aware of the exact sequence of events leading to the deceased’s demise. He also changed his earlier statement regarding the members residing with the accused appellant, stating that Ibrahim and Yousuf lived separately and were residing separately even at the time of the deceased’s marriage and that he was unaware of the distance between Ibrahim and Yousuf’s houses. He further stated that he had not visited the accused appellant’s village post 21.03.2000 and even on the day of his visit, he had neither met nor interacted with anyone from the village or the accused appellant or the accused’s family. The PW1 further stated that at the time of the marriage, no dowry demand was made by the accused. However, the accused appellant was later gifted a watch amounting to Rs. 350/- by the deceased’s family. PW1 also stated that it was mere suspicion based on which he had filed the complaint against the appellant accused appellant following the deceased’s demise. PW1 also conceded that the accused appellant resided in a kucha house made up of hay and grass. However, he has categorically denied the suggestion that the demise of the deceased could have been due to an accident which resulted in burning of the highly inflmable house in which the deceased was present.

8. PW2 is the wife of PW1, who, while supporting the prosecution case, has stated during her cross examination that the appellant accused and his family members used to persistently demand a cycle and a radio from the deceased’s family through the deceased. However, She has also concurred with PW1’s statement that at the time of the marriage, no dowry demands were raised by the accused or his family and only the ”Nikah’ ceremony was performed. Moreover, she also stated that she was unsure about the exact sequence of events leading to the deceased’s death and could not tell if the death was a result of an accident during cooking or not.

9. Dr. S.K Yadav, PW3, who performed the postmortem report on the deceased’s body has testified stating that the deceased, at the time of her demise was pregnant and the fetus was 4 cms in size. Importantly, during his cross examination, PW3 has stated that no residue or smell of any inflammable material such as kerosene, petrol etc. was detected on the deceased’s body or clothes. Furthermore, except for the burn injuries, no other sort of injuries were discovered on the body of the deceased.

10. Mr. Ashok Kumar, I.O.,PW4, has stated that the inquest witnesses did not suggest that the accused had killed the deceased by setting her on fire. He further stated that he did not record the statement of Mohd. Jalil, father of the accused. PW4 has also stated that the residents of the accused’s village never said that the accused appellant had killed the deceased by setting her on fire. He also discovered that the accused, Ibrahim, Yousuf and Azaad were residing separately, contrary to what PW1 had stated. He also stated that none of the villagers said that the accused appellant had been demanding a radio from the deceased and was torturing her for the same. The PW2 further stated that during his investigation, he had discovered that the accused resided in a kucha house made up of hay and grass and that cooking was carried out in the same premise. The PW2, during his cross examination, has revealed that during the course of his investigation, he had discovered that two co-accused were falsely implicated. However, he has categorically denied the suggestion that the demise of the deceased was a result of an accident and that the chargesheet filed by him is incorrect.

11. DW1 in his statement has said that his house is adjacent to the accused appellant and he was a guest at the marriage of the accused appellant and the deceased. He has stated that the deceased had visited his place several times and that the deceased and the accused appellant (hereinafter ”the accused’) shared a happy matrimonial home. He further states that the deceased had never complained of any torture or cruelty inflicted upon her by the accused to the DW1. He states that the demise of the deceased was a result of the roof of the kucha house catching fire while the deceased was cooking which resulted in the burning of the house and the eventual demise of the deceased. He states that he along with other villagers immediately reached the spot of the accident and that the accused was not present at the spot at that time. However, as soon as the accused was intimated, he immediately rushed to the spot and made efforts to extinguish the fire in the course of which, he also suffered burn injuries. The DW1 states that the deceased was immediately rushed to the hospital for treatment, however, she could not survive. The DW1 further states that the parents of the deceased were informed about the accident from the hospital and that they were present during the deceased’s cremation ceremony.

12. The DW1, during his cross examination, has stated that he reached outside the accused’s house along with other villagers immediately upon spotting the fire. He states that at that time, the deceased was alive but had caught fire and that she was the only one inside the house when the fire broke out. He has further denied the suggestion that he is giving a false testimony.

13. The accused appellant in his statement under Section 313 Code of Criminal Procedure, 1973 (hereinafter ”CrPC’) states that he had never inflicted any cruelty or torturous treatment and that his marriage with the deceased was performed without any demand for any dowry whatsoever. He further states that post the incidence, the parents of the deceased had visited his house and enquired about the death of the deceased. He states that when he explained the accident to the deceased’s parents, they did not lodge any complain themselves, nor have they deposed before the Hon’ble Court. He states that PW1 and the father of the deceased were living separately and that PW1 is an alcoholic with severe alcohol related problems. He further states that PW1 is under heavy debt and had been requesting the accused for financial assistance. However, when the money requested was not given to him, he lodged a false FIR against the accused and made a false deposition before the Hon’ble Court.

14. On the basis of the aforesaid, evidence and facts and circumstances of the case, the trial court convicted the accused appellant under Section 498-A along with Section 306 of IPC read with Section 4 of the DP Act while acquitting the co-accused Azaad and Yousuf of all charges. The accused appellant was sentenced under Section 498-A IPC for rigorous imprisonment (hereinafter ”RI’) of 1 year along with fine of Rs. 1000/- and in case of non-payment of the fine, additional rigorous imprisonment of 1 month. He was further sentenced under Section 306 IPC for 5 years of RI along with a fine of Rs. 2000/- and an additional 3 months of RI in case of non-payment of fine. He was further sentenced under Section 4 of the DP Act for 4 months of RI along with fine of Rs. 1000/- and an additional 1 month RI in case of non payment of fine. The trial court further directed that all the aforementioned sentences were to run concurrently. The order of the trial court is dated 02.06.2003 and the present appeal is arising out of the same.

15. The learned court for the appellant submits that the trial court has grossly erred in convicting the accused appellant for offences which are not made out against him based on the evidence before the trial court. The learned counsel submits that the parents of the deceased did not lodge any FIR against the accused, nor did they testified against him in support of the prosecution. He further submits that the FIR had been lodged after 5 days of unexplained delay. It is further submitted that during the post-mortem of the deceased, no residue or smell of any inflammable such as kerosene, petrol etc. could be detected on either the body or the clothes of the deceased. Lastly, it is submitted that the FIR was lodged on the basis of mere suspicion which is evident from the tenor of the FIR as well as the deposition of PW1 himself.

16. The learned counsel for the accused has specifically drawn our attention to the deposition of PW4 wherein it is stated that no villager supported the allegations of dowry demand or torture by the accused against the deceased. In his deposition, the PW4 has further stated that on the basis of the evidence on record, no case of abetment of suicide is made out against the accused appellant. It has also been contended by the learned counsel for the accused appellant that the guilt or involvement of the appellant in the commission of the offence has not been rightly pointed out by the Hon’ble trial court as there exists no independent evidence/witnesses against him. He further submits trial court has not found any incriminatory material evidence against the accused so as to punish him for the aforementioned offences. The only evidence adduced was the deposition of PW1 and PW2 and no other independent witness was examined. He further submits that as per Section 113-A of the Indian Evidence Act, 1872 (hereinafter ”The Evidence Act’), the prosecution has failed to make out a case of abetment to suicide against the accused. Therefore, the case against the appellant has failed to match the threshold of being proven beyond reasonable doubt and the learned Trial Court has grossly erred in convicting the accused for the same.

17. On the other hand, the learned Additional Government Advocate (hereinafter ”AGA’) appearing on behalf of the State has submitted that the trial court has considered the evidence on record very carefully and has rightly convicted the accused appellant. He further submits that the ingredients under 498-A, 306 IPC read with Section 4 of the DP Act are established beyond reasonable doubt against the appellant. He submits that the deceased was subjected to cruelty and torture with the aim of extorting dowry from her family through her as per the depositions of PW1 and PW2. The learned AGA further submits the presumption under Section 113-A of the Evidence Act for abetment of suicide of the deceased by the accused appellant has been clearly established and the defense has failed to rebut the said presumption. Therefore, the impugned judgment of learned Trial Court doesn’t suffer from any infirmities and thus the present appeal is liable to be dismissed.

18. On the basis of the aforesaid factual matrix, the evidence as well as the submissions from both sides, it has to be first determined whether the deceased was subjected to torture and cruelty by the accused. It is pertinent to mention here that the parents of the deceased had chosen not to testify against the accused appellant in support of the prosecution case of the deceased being subjected to torture and cruelty on the pretext of extorting dowry from the deceased. This Court strongly believes that the parents are the best persons to testify regarding the problems faced by a daughter at her matrimonial home. Therefore, in the absence of a testimony by the parents, this Court feels that the prosecution has withheld its best evidence for reasons only known to it.

19. The PW-1 and PW-2 themselves have said in their evidence that there was no dowry demand at the time of marriage and that the deceased had come to her parental house and returned happily. If the accused had demanded the dowry or subjected the deceased to cruelty, she would have intimated her parents of the same. However, the parents did not enter the witness box to testify. PW1 further, in his statement, has specifically stated that the deceased had visited her parental home twice after the marriage and had subsequently returned with the accused back to their matrimonial home happily. On both the occasions, the accused appellant dropped and picked her up from the maternal home. Moreover, no dowry demand was made by the accused at the time of the marriage or during these subsequent visits.

20. It is pertinent to mention here that PW1 has lodged the FIR on his own accord, without even consulting the father of the deceased, even though he was present at that time in the village. He has himself further conceded that the basis of lodging the aforementioned FIR was mere suspicion that the accused appellant has murdered the deceased by setting her up on fire. Furthermore, he has conceded to the fact that he was informed by the villagers that the reasons for the deceased’s demise was a cooking accident which led to the fire. However, he chose not to believe the same and went ahead and lodged the aforementioned FIR against the accused appellant.

21. The evidence put forth by PW2, the deceased’s aunt and PW1’s wife too suffers from numerous infirmities and fails to be cogent or convincing. This Court finds that due to the stated reasons, her testimony severely lacks credibility, and cannot be the basis to record a finding based on which the aforementioned offences under the IPC and DP Act can be made out against the accused appellant. There exists no basis on which the PW2 can substantiate her allegation of the accused subjecting the deceased to cruelty and torture. She had accepted that there was no dowry demand at the time of marriage and marriage was performed without any dowry, only nikah was performed. She was not aware of the fact, how the deceased died, whether she died in an accident as the house caught fire where she was cooking.

22. The I.O., PW 4 in his statement has said that no independent witness told him that the deceased was subjected to cruelty by the accused for dowry demand and in fact every independent witness told him that she died as a result of an accident as the house caught fire where she was living and cooking food. Even PW 3, the Doctor who performed the post-mortem of the body of the deceased did not notice any other injury except the burn injuries and, therefore, the story set up by PW 1 and PW 2 that the deceased was subjected to torture and cruelty does not lend any credence and cannot be believed to record a finding that the deceased was subjected to dowry demand before marriage.

23. DW 1, the only defence witness which was examined was a neighbor of the accused, and his testimony cannot be discarded. He has basically said that he was present at the time of marriage and he never heard anything about deceased being subjected to any torture or cruelty for dowry demand. He witnessed the fire at the house of the deceased where she got engulfed in the fire which resulted from cooking and ultimately she died.

24. Thus, on the basis of the aforesaid analysis of the evidence on record, the conviction of the accused appellant under Section 498A of IPC and Section 4 of the DP Act is set aside.

25. Now coming to the point of determining whether the accused had abetted the commission of suicide of the deceased as provided u/s 306 IPC. There is no evidence on record to suggest that the accused appellant abetted her suicide in any manner. From the facts and circumstances of the instant case, and analysis of the evidence on record it is clear that death of deceased was a result of an accident as the kaccha house with straw roof caught fire during cooking and she also was engulfed in the fire and ultimately died in the hospital.

26. I am of the opinion that there is no cogent, credible and convincing evidence to say that the prosecution has proved the case against the accused appellant beyond reasonable doubt. I, therefore, set aside the order of conviction of the accused-appellant and allow the appeal. Accused is acquitted of all charges. His bail bonds are cancelled and sureties are discharged.

Order Date: 08.03.2018

MVS Chauhan*

 

 

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