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Mohd Ishaq And Others vs State Of U.P. on 13 February, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. – 51

AFR

Case :- CRIMINAL APPEAL No. – 1852 of 1991

Appellant :- Mohd Ishaq And Others

Respondent :- State of U.P.

Counsel for Appellant :- Satish Trivedi,Ajay Kumar Pandey

Counsel for Respondent :- D.G.A.

Hon’ble Arvind Kumar Mishra-I,J.

Hon’ble Gautam Chowdhary,J.

Sri Satish Trivedi, learned Senior Advocate assisted by Sri Ajay Kumar Pandey, learned counsel for the appellants is present.

By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 24.09.1991 passed by Special Judge, Moradabad, in Session Trial No.411 of 1987, State of U.P. Vs. Mohd. Ishaq and others, arising out of Case Crime No.82 of 1987, under Sections 304B, 201, 498A I.P.C. and Section 3/4 of Dowry Prohibition Act, Police Station- Behjoi, District- Moradabad, whereby the surviving appellant nos.2 and 3 has been sentenced to undergo rigorous imprisonment for life under Section 304B I.P.C., five years rigorous imprisonment under Section 201 I.P.C., two years rigorous imprisonment under Section 498A I.P.C. and two years rigorous imprisonment under Section 3/4 Dowry Prohibition Act. All the sentences were directed to run concurrently.

Heard Sri Ajay Kumar Pandey, learned counsel for the surviving appellant nos.2 and 3 Mohd. Mushtaq and Mohd. Asghar, Sri Krishna Pahal, learned A.A.G. assisted by Sri Om Narain Tripathi, learned A.G.A. for the State and perused the record of this appeal.

Relevant facts of this appeal, as gathered from record, appear to be that Haji Mian Jan, informant PW-1 lodged the written report at Police Station Behjoi, District Moradabad (now District Sambhal) against the present appellants and his family members regarding fact that Khurshida Begum, daughter of the informant was married to Mohd. Ishaq some time ago but she was thrown out from her in-laws’ house, therefore, she filed a case under Section 125 Cr.P.C. before the court below wherein maintenance to the tune of Rs.150/- was granted to her against which a revision was filed by Mohd. Ishaq before the Sessions Judge, Moradabad. It so happened, in revision a compromise took place that the husband of the deceased promised that he will keep his wife with peace and dignity in future. The Sessions Judge allowed to take his wife back to his home on 20.5.1985. It so happened that on 15.02.1986, the informant received a letter whereby fact of cruelty both mentally and physically being perpetrated upon the deceased was disclosed then the informant’s son along with other relatives arrived at the house of the in-laws of his daughter on 17.02.1986 where they were badly treated and returned. Later on, the informant also visited the house of the in-laws of his daughter and he too was maltreated and returned. Thereafter, report was made to various higher authorities of the police, details whereof are made in the first information report itself. As the first information report proceeds further, it indicates that one Abdul Salam @ Sukha master, a neighbour of the informant came to him and told around at 8:00 a.m. on 25.03.1987 that the informant’s daughter expired on 15.03.1987 and this death has been caused on account of non-fulfillment of dowry demand and consequent perpetration of cruelty and in order to cause disappearance of evidence, she was buried. Request was made for lodging the report and taking appropriate action. The written report is Ext. Ka-1.

Record further reveals that contents of the written information were taken down in the concerned Check FIR at Case Crime No.82 of 1987 under Sections 302, 201, 498A I.P.C. and 3/4 Dowry Prohibition Act, Police Station Behjoi, District Moradabad, on 26.03.1987 at 09:35 p.m. Check FIR is Ext. Ka-11.

On the basis of entries so made in the check F.I.R., a case was registered against the appellants in the relevant G.D. at the aforesaid Case Crime Number at Police Station Behjoi, under aforesaid Sections of I.P.C. and Dowry Prohibition Act against the appellant. General diary copy is on record.

After registration of the case, the investigation ensued and the same was entrusted to Circle Officer concerned who pursuant to the lodging of the first information report proceeded to the spot and facilitated for preparation of the inquest of the deceased. The inquest of the deceased Khurshida Begum was held by the Circle Officer concerned. It commenced at 11:00 a.m. and completed at 01:00 p.m. on 28.03.1987. Inquest report is Ext. Ka-14.

In the opinion of the inquest witnesses and the Investigating Officer concerned, it was suggested that post mortem of the dead body of Khurshida Begum be ensured in order to ascertain real cause of death. Therefore, relevant papers were prepared such as letter to CMO by R.I. Ext. Ka-13, photonash Ext. Ka-15, letter to R.I. Ext. Ka-16, Police Form 13 challan dead body Ext. Ka-17, letter to CMO Ext. Ka-18, and specimen seal Ext. Ka-19.

Thereafter, the dead body was sent for post mortem examination in the mortuary at Moradabad where post mortem examination on the cadaver of the deceased Khurshida Begum was done by the doctor on 29.03.1987 at 12:30 p.m. wherein he noted the following ante mortem injuries:

1. Contusion 4 cm x 3 cm on the left side neck upper part and on cutting blackish clotted blood present under the injury.

2. Contusion 4 ½ cm x 3 cm on the right side neck upper part and on cutting blackish clotted blood present under the injury.

3. Contusion 6 cm x 6 cm on the right side occipital region of head and on cutting blackish clotted blood present under the injury.

In the opinion of the doctor, cause of death was due to asphyxia as a result of throttling. This post mortem examination report is Ext. Ka-20.

In the meanwhile, the investigation continued. The Investigating Officer in the process recorded statement of various persons including the informant. He also prepared site plan of the place of occurrence Ext. Ka-21 and graveyard Ext. Ka-23.

Since relevant papers pertaining to the investigation and the post mortem report were admitted to the defence itself, therefore, no formal witnesses from the prosecution side was produced in proof of the same, thus papers were marked in exhibits. After doing the needful, the Investigating Officer filed charge sheet against the appellant Ext. Ka-22.

Pursuant thereto committal proceeding took place and after compliance with Section 207 Cr.P.C., the case was committed to the court of Sessions from where it was transferred to the IX-Additional Sessions Judge, Moradabad, for conduction of trial and disposal of the case, after numbering it as Sessions Trial No.411 of 1987 State Vs. Mohd. Ishaq and others. Learned trial Judge heard the prosecution and the appellants on point of charge and was prima-facie satisfied with the case against the appellants, accordingly, framed charges under Sections 302/34, 201, 498A I.P.C. and 3/4 of Dowry Prohibition Act. Charges were read over and explained to the appellants who abjured charges and claimed to be tried.

In turn, the prosecution was required to adduce its testimony in support of the charge brought against the appellants to prove their guilt, whereupon the prosecution produced the following witnesses whose reference is being sketched hereinbelow.

Mian Jan PW-1, Irshad Ahmad PW-2, Mohd. Salim PW-3, Nasheer Ahmad PW-4 and Laddan PW-5 are witnesses of fact. We have already discussed all the police papers and relevant papers were admitted to the defence, therefore, formal proof was dispensed with.

After that much, evidence for the prosecution was closed and statement of the appellants was recorded under Section 313 Cr.P.C. wherein they claimed to have been falsely involved on account of enmity in this case.

Except as above, no other testimony, whatsoever, has been adduced by the defence, therefore, evidence for the defence was also closed and the case was posted for arguments.

The learned trial Judge, Moradabad, after appraisal of facts and consideration of the merit of the case and evaluating the evidence on record, returned aforesaid finding of conviction and awarded sentence vide impugned judgment and order dated 24.09.1991.

Hence, this appeal.

At the outset, learned counsel for the appellants has submitted that in this case, all the ingredients of Section 304B are not applicable against the present surviving appellants namely Mohd. Mushtaq and Mohd. Asghar, for the specific reason that their role for controlling the working of the entire family in the shape of dominance was insignificant in the presence of the mother-in-law, father-in-law and husband of the deceased Khurshida Begum. There is not a single whisper and iota of evidence or any consistent attendant circumstance which may also allude to inference that both the surviving appellants voluntarily and tacitly ever indulged in any act of demand of dowry from the deceased, informant or the parents of the deceased. To say that the present appellants, both brothers of the husband of the deceased had connived with the rest of the family members; the father-in-law, the mother-in-law and the husband of the deceased and they were persistently sticking to the demand of dowry, not only this but also the factum of cruelty being perpetrated by the surviving appellants, cannot be accepted to have been satisfactorily proved / established by the prosecution as was required of it.

Once the fact of perpetration of cruelty is missing against particular appellants then conjectures and surmises alone would not work to fill in the gap created by the prosecution at a stage when specific role was imputed to have been played in the demand of dowry and perpetration of cruelty against the only accused the father-in-law, the mother-in-law and the husband. Nothing such or specific imputed on the point to the present appellants.

Two witnesses of fact namely Mian Jan PW-1 and Irshad Ahmad PW-2, father and brother of the deceased have been examined before the trial court, they have not spelled even a single word about any specific role in the shape of perpetration of cruelty or demand of dowry being made at their instance but the surviving appellants were married at the time of the incident and they had separate living with their family and they would not be beneficiary of the transaction and were not directly interested in raising any demand on account their disinterestedness in any dowry what to about its demand. Offence under the provisions of dowry death as such is not made out. There was no point in concealing or causing disappearance of the evidence regarding commission of the dowry death as such no offence under Section 201 I.P.C. is made out either. On that point also, finding of conviction is based on conjectures and erroneous analysis of fact and not supported by any cogent material available on record because there is no specification against the present two surviving appellants that they ever played any particular role. Allegations against them are vague and of trivial nature.

Once the case does not fall within four corners of Section 304B I.P.C. and the point of perpetration of cruelty and dowry demand soon before the occurrence by and on behalf of the accused being missing, the essential ingredient (of Section 304B I.P.C.) is virtually not existing since beginning against the present surviving appellants. May be that it is found to have been working for the other accused against whom specific role has emerged in the testimony of witnesses but it is not so against the present two surviving appellants who are none other than the two brothers of the husband of the deceased.

It is tendency in the cases pertaining to dowry death that the entire family is roped in. The court is required to act cautiously; be circumspect about false involvement of the accused. It is a case of false and vague allegations against the present two surviving appellants. There is virtually nothing against the present surviving appellants bringing their case under Sections 498A, 304B, 201 I.P.C. and 3/4 Dowry Prohibition Act.

Learned trial Judge failed to take stock of the aforesaid factual as well as legal aspects of this case which were very much apparent to it and erroneously recorded conviction against the appellants in casual manner, which finding is not based on material on record. The prosecution has miserably failed to prove its case beyond all reasonable doubt.

Per contra, Sri Krishna Pahal, learned A.A.G. for the State has has submitted that the trial court has rightly acted on the evidence available before it and has rightly applied the principles of the presumption as envisaged under Section 113B of the Indian Evidence Act, 1872. The incident took place within seven years of the marriage of the deceased and the death in question as per post mortem examination report is unnatural and testimony of the prosecution witnesses is replete with fact that the in-laws side of the deceased demanded dowry, thus perpetrated cruelty upon the deceased Khurshida Begum. Merely because no specification has been made regarding demand of dowry and perpetration of cruelty, insofar as against the present two surviving appellants are concerned, that would not alone exonerate them of charges inter-alia under Section 304B I.P.C.

It is the admitted position that the post mortem examination report has been admitted to the defence and they cannot question the nature of the ante mortem injuries caused on the body of the deceased Khurshida Begum. Once it being so, the burden of proof bounced back to the appellants to come out specifically as to how it was caused on the body of the deceased. It is not proved and cannot be accepted under circumstances that the present appellants were residing separately at the time of occurrence. The charge sheet was rightly filed against the present appellants and all the ingredients of perpetration of cruelty are equally applicable to all the accused under prevailing facts and circumstances of the case. The trial court was justified in recording conviction and passing sentence against them.

We have also considered the above submissions pros and cons made by both the sides.

In the light of rival submissions and the claim of the appellants and the prosecution, the moot point that arises for adjudication of this appeal relates to fact whether the testimony of the prosecution witnesses of fact is innocuous and the charges framed against the appellants have been proved beyond reasonable doubt ?

We have carefully scrutinized the record and the testimony of the aforesaid two witnesses of fact namely PW-1 and PW-2 and have also scanned testimony of PW-3, PW-4 and PW-5. We would not indulge unnecessarily in roving scrutiny and exhaustive interpretation of facts as involved in this case. However, we can unhesitatingly observe that all the above five prosecution witnesses, if taken to be true, and normal construction is raised about the very import of their testimony on the point of demand of dowry then it is found to be not specific against the present surviving appellants. Whatever, we come across, is fact that mother-in-law, father-in-law in company with the husband of the deceased played vital role in demanding of dowry and perpetration of cruelty on the deceased but the present appellants have not been whispered by the prosecution witnesses about any specific role being played in the commission of the offence. The involvement of the appellants cannot be said to be either direct or indirect in this case. Things are, on the contrary, vague and general insofar as the role of the two appellants is concerned.

It has come in the testimony of the prosecution witnesses that all the brothers of the husband of the deceased have their own separate living though in the same house. It means that the control and the dominance over the family of the deceased was very much confined to her husband, mother-in-law and father-in-law and it did not travel beyond it. Now this being accepted and proved position, how can it be said that the present appellants ever exercised influence upon the deceased in raising demand of dowry. Mere conjectures and guess can be made at this stage that they might have sided with the aforesaid mother-in-law, father-in-law and the husband of the deceased but that conjecture cannot be accepted to be the established position, which was required to be proved as such under the relevant provisions of the Indian Evidence Act. That being so, any sort of presumption for committing dowry death as the accused as envisaged under Section 113B Indian Evidence Act, 1872 would be derogatory to the principles contained under the Indian Evidence Act itself.

Therefore, the approach adopted by the trial court is not based on material on record. To raise such presumption under Section 113B of the Indian Evidence Act against the appellants is not justified. Rest of the ingredients may be present but the fact that soon before her death, the deceased was subjected to cruelty is not specifically proved against the present appellants, for the reason that in the same house, they were residing in different portion and that being established position (emerging in testimony), how can it be said that the present appellants also colluded and connived with the other family members in view of fact that they were not beneficiary of the outcome of dowry (demand). The circumstances are cogent and conspicuous. They speak for themselves and need no explanation as such. We unequivocally are of the view that the trial court did not approach cautiously and properly to this virtual aspect abundantly supported position supported by evidence on record and wrongly recorded finding of conviction under Sections 304B, 201, 498A I.P.C. and 3/4 Dowry Prohibition Act against the two surviving appellants which is not justified.

It is settled principle of criminal jurisprudence that in cases where evidence and circumstances when weighed substantially and taken cumulatively raised strong suspicion about the manner and style of the occurrence that it was so caused by the accused-appellants, then benefit of doubt would be the only reasonable outcome of judicial scrutiny and this benefit of doubt always works in favour of the accused (appellants).

The learned trial court could not appraise substantive facts and testimony of this case in right perspective and considered things from narrow angle without properly scrutinizing the same on its entirety and intrinsic potency, instead it read testimony and circumstances only on its face value, whereas, proper scrutiny of fact vis a vis testimony on record would have brought truth on the surface. It is very easy to consider and examine testimony recorded in examination in chief, whereas, the Court has to cautiously contemplate on the entire testimony as a whole and particularly as emerging from the cross examination and then to proceed to record finding on merit for arriving at just conclusion.

We may record our satisfaction that arguments extended on behalf of the present appellants carry force and the same are approved and sustained by us. Consequently we hold in unambiguous term that the prosecution has not been able to prove its case beyond reasonable doubt against the two surviving appellants namely Mohd. Mushtaq and Mohd. Asghar. Thus charges framed against them become doubtful and they are entitled to the benefit of doubt.

In the wake of above discussion, we may sum up that the finding of conviction recorded by the trial court is on the face erroneous and perverse and the same cannot be sustained in the eye of law. Therefore, the judgment and order of conviction and sentence dated 24.09.1991 passed by Special Judge, Moradabad, in Session Trial No.411 of 1987, State of U.P. Vs. Mohd. Ishaq and others, arising out of Case Crime No.82 of 1987, under Sections 304B, 201, 498A I.P.C. and Section 3/4 of Dowry Prohibition Act, Police Station- Behjoi, District- Moradabad, is hereby set aside. Accused-appellants are acquitted of all charges as above. Accordingly, the instant appeal is allowed.

In this case, the accused-appellants Mohd. Mushtaq and Mohd. Asghar are already on bail. They need not surrender in this case. Their bail bonds cancelled and sureties discharged. However, they shall furnish surety bonds in compliance with Section 437A Cr.P.C.

Let a copy of this judgment/order be certified to the court concerned for necessary information and follow up action.

Dt. 13.02.2020

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