HIGH COURT OF JUDICATURE AT ALLAHABAD
Judgment reserved on 21.8.2019
Judgment delivered on 13.9.2019
Court No. – 65
Case :- APPLICATION U/S 482 No. – 10984 of 2015
Applicant :- Zauhar Ali And 3 Others
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Prabhakar Dubey,Amit Daga
Counsel for Opposite Party :- Govt. Advocate,Shahroze Khan
Hon’ble Dinesh Kumar Singh-I,J.
1. Heard Sri Amit Daga, learned counsel for the applicants and Sri Shahroze Khan, learned counsel for the opposite party no. 2 and Sri G.P. Singh, learned A.G.A. for the State.
2. The present application has been filed with a prayer to quash the entire proceeding of Crl. Case No. 410 of 2015, arising out of Case Crime No. 453 of 2004, under Section 498A Section304 B IPC, P.S. Uska Bazar, District Siddhartha Nagar, pending in the court of Chief Judicial Magistrate, Siddharth Nagar.
3. In order to appreciate the arguments of learned counsel for the parties, it would be appropriate to give in a nutshell the facts of the case which are as follow.
4. On 18.12.2004, the opposite party no. 2 had lodged an F.I.R. at P.S. Uska Bazar, District Sant Kabir Nagar, which was registered as Case Crime No. 453 of 2004 under Sections 498A, Section304-B IPC against the accused-applicant nos. 1 to 3 in which it was mentioned that he had got married his daughter Imamnisha with accused-applicant no. 1 on 7.4.2013 after giving dowry as per his capacity. At the time of the Bidai of his daughter Rs. 33,000/- in cash was demanded by the accused-applicant no. 1 but showing his inability to fulfill the same, he had convinced the accused and his daughter was accordingly sent to her matrimonial house but her mother-in-law, Nanad (sister-in-law), Father-in-law Ataullah, husband Jauhar Ali started making sarcastic comments and harassing his daughter. The first Bidai from the house of her father-in-law took place after eight days and till then the parties were cool but eight months thereafter the health of his daughter deteriorated considerably and when reason was inquired, it was told that she was being harassed/tortured because of non-payment of the demanded amount. At this, opposite party no. 2 went to the matrimonial home of his daughter and talk was held with respect to harassment of his daughter. The father-in-law and husband told opposite party no. 2 that the said amount would have to be paid by him because the accused-applicant no. 1 does business in Delhi and that in case more money would be required the same would also be demanded. At this, the opposite party no. 2 cringed before them but the annoyance of the accused side continued to grow. After getting frustrated, opposite party no. 2 returned home and placed the matter for discussion among his relatives and some respected persons of the society. The third time when his daughter had come in “Saberat”, she was again sent to matrimonial home one week after festival of Teej but on that occasion neither her husband nor her father-in-law had come, rather her Dewar (brother-in-law) had come, who had stated that health of his father and brother was not good. At this, opposite party no. 2 became suspicious and he dispatched his daughter with her “Dewar” but at that time, his daughter became terrified and very somber and while crying told that the opposite party no. 2 should make the payment of amount which was being demanded so that her life could be spared. Due to social pressures, the opposite party no. 2 had sent his daughter to matrimonial home giving assurance that soon the said demand would be attempted to be fulfilled. He was considering how to arrange money. In the meantime on 16.12.2004, phone-call was received by him from the Mahiuddin s/o his Mamu informing him that his daughter had died in adverse condition and thereafter he rushed to his daughter’s matrimonial home. It was time of about 6:00 am, the opposite party no. 2 reached the matrimonial home of his daughter by Taxi of a person of his clan and reached at about 2:00 pm. At that time, the preparations for Janaza of his deceased-daughter was being undertaken. After having seen the opposite party no. 2 and his family members, the accused side started expediting the process of cremating the deceased. At that very time, one person came there near him and silently apprised him in ear that his daughter had been murdered by these persons. At this, he informed about this to his daughter-in-law and son, who had accompanied him that it was being heard that his daughter had been killed. The dead body of the deceased was seen carefully. Her hand was found broken and on the rear side of her body, there were black marks of injury and also there was mark of injury around the neck. Having seen all this, his elder daughter Jahirunisha told the nanad of the deceased Khalikunisha to show her room in which her sister used to live. Thereafter, she went to show that room but it had become dark and the room was seen in the light of torch and it was found that there was lying on the bed of the deceased one torn bandi and one red coloured torn Salwar and some broken bangles as well as one old tube of bicycle were found. While he was seeing all this, some other ladies of the village also started coming there then the nanand of the deceased had taken out cells of the torch and had thrown the same and torch was also broken and all people were expelled from there. When O.P. No. 2/father of the deceased showed suspicion about murder of his daughter, the father-in-law Ataullah denied the same, but O.P. No. 2 did not get satisfied and hence he went to the P.S. but in the meantime in a hurry Janaza of his daughter was taken to the east of the village in the Idgah, where Kabristan was located and after having dug the grave, she was cremated. Nothing was heard of opposite party no. 2 at the P.S. despite his running from here to there and then he gave application to the S.S.P. for registration of the case against the accused-applicants.
5. The case was investigated by I.O. and final report was submitted against the accused-applicants against which a protest petition was filed before the court concerned, who after considering the entire evidence on record, passed the impugned order dated 25.2.2015 and summoned the accused applicants under Section 191(1)(b) Cr.P.C. to face trial under Section 498A and Section304B IPC.
6. The crux of the argument of the learned counsel for the applicants is that O.P. No. 2 was present at the time of the cremation of the deceased and he did not oppose the same at that stage, rather he lodged F.I.R. after two days of the incident on 18.12.2004 making allegation of demand of dowry, which is totally false as the statements, which the police had recorded of the mother as well as sister of the deceased, nothing is contained therein that demand of dowry was ever being made by the accused side from the O.P. No. 2. Because both these witnesses have stated clearly that her sister/daughter never brought to their notice that the accused side were making any demand of dowry, only after the cremation of the deceased, O.P. No. 2 had told them that the deceased had told him that her father-in-law, husband and mother-in-law used to torture her for money. Further, the attention was drawn to the fact that the post-mortem of the deceased was got conducted after exhumation of the body of the deceased and no apparent injury was found on her person. The cause of death also could not be ascertained, therefore viscera was preserved and in viscera report (annexed at page No. 44 45) nothing poisonous was found to have been consumed by the deceased. It is further argued that the trial court has wrongly mentioned in the impugned order that when the dead body of the deceased was exhumed from the grave in front of the S.D.M. and Nayab Tehsildar and Panchayatnama was conducted, the blood was oozing out from the mouth of the deceased and the skin was also found peeled off behind the neck and there were blisters on the back of her, which all indicated the death of the deceased to be unnatural. In fact such kind of conclusion does not find corroboration from the Post-mortem report because there was no such kind of injuries noticed therein and simply because in the inquest report it was mentioned that blood was coming out from the mouth of deceased, this wrong conclusion has been drawn by the trial court which needs to be discarded.
7. It is further argued that the protest petition has been filed after considerable delay on 22.01.2015, while the occurrence took place on 16.12.2004 i.e. after a delay of about eleven years, only with a view to extracting illegal money from the accused-applicants. No justification has been given for such considerable and inordinate delay, hence, impugned order needs to be quashed.
8. On the other hand, learned counsel for the O.P. No. 2 has vehemently defended the impugned order saying that delay happened because the O.P. No. 2 is a rustic villager and has no knowledge of law. Apart from that it is further stated that the argument of learned counsel for the applicants that nothing was mentioned in the F.I.R. that any demand was being made from the side of the accused for establishing the business of the accused and that if such kind of demand was ever made, the same would not qualify to be a demand of dowry, as per definition given in SectionDowry Prohibition Act is untenable. It is further argued that the father of the deceased has given incriminating evidence against the accused-applicants, who has clearly stated that the accused applicant nos. 1 2 were demanding Rs. 33,000/- from him in order to enhance their business in Delhi but he did not have the said money and had stated that since his financial condition was not good enough being the single bread earner, he was not in a position to pay that amount. But soon thereafter, all the accused-applicants continued to exert pressure on the deceased and started giving her mental and physical torture in various ways so that she would compel her father to arrange for the said amount. She used to be beaten and he has fully corroborated the version which has been given by him in the F.I.R., therefore, it cannot be said that the cognizable offence is made out against the accused-applicants.
9. I have gone through the F.I.R. as well as statement of the witnesses examined by the Investigating Officer.
10. Learned counsel for the accused-applicants had taken the court word by word through the statement of sister of the deceased (Jahiunisha) as well as that of mother of the deceased (Jamirunisha), which clearly contained that never ever the deceased had told them that whenever she went to her matrimonial home, she used to be ill-treated for any monetary demand, except that just after the cremation of the deceased, father of the deceased had told them that the deceased had told her about being harassed by her father-in-law, husband and mother-in-law for the non-fullfilment of the monetary demand. The other independent witnesses, statements of whom are also recorded, have not supported the version of the prosecution that any monetary demand was made from the side of accused. The only person who had stated that the accused side was making monetary demand was that father of the deceased regarding which it was argued that same was stated in order to extract illegal money from the accused-applicants.
11. I have gone through the impugned order. It is apparent from perusal of it that the trial court has recorded in it that admittedly the marriage of the deceased had taken place on 7.4.2003 with the accused-applicant no. 1 and she died on 16.12.2004 under unnatural condition, which was well within seven years period and, therefore, the burden to explain the reason for death lay upon the accused side. The father of the deceased in his statement under Section 161 Cr.P.C. has fully corroborated prosecution case as narrated in the F.I.R. and stated that the Investigating Officer has collected the evidence in this case in a devious manner and has submitted final report. It is further mentioned that when the dead body of the deceased was taken out from the grave in front of the S.D.M. and Naib Tehsildar and the inquest was conducted, the blood was found coming out from the mouth and skin was peeled off near her neck. On her either shoulder and on her back, blisters were also found present. Out of the injuries and from the mouth of the deceased, blood was coming out and all this indicated that she died unnatural death. The investigating Officer did not collect any documentary evidence pertaining to her ailment/cause of death nor any such document has been presented which could show that she was sick and was being given treatment anywhere. It was being stated that the deceased had been taken on the said night in Maruti Car for being treated but no evidence has been collected in respect of the said Car during investigation. I.O. by disbelieving the statement of the father of the deceased and recording the statement of the witnesses which was favouring the accused and also ignoring the condition in which the dead body was found as mentioned in the inquest report, has illegally submitted final report. The dead body of the deceased would indicate that she has died unnatural death within seven years of her marriage, therefore, the evidence which has been gathered by the Investigating Officer in the case diary was establishing the prima facie case against the accused and, accordingly, they have been summoned under the above mentioned sections to face trial.
12. In do not find any infirmity in the impugned order, though it is very disturbing for the court to find that the opposite party no. 2, father of the deceased, remained silent unusually for a long time after submission of protest petition before Magistrate concerned but it has been explained away by the learned counsel for the opposite party no. 2 that the opposite party no. 2 was a rustic person, although that does not seem to be a justifiable explanation in my estimation but it is also noteworthy that within two days of the death of the deceased, the F.I.R. was lodged by the opposite party no. 2 in respect of having doubts that his daughter was killed by the accused-applicants for want of dowry demand, although it is a matter to be decided on evidence, which would be possible to be done by the trial court as to whether the demand of Rs. 33,000/- which were being said to be demanded in order to expand his business, would be covered in the demand of dowry from the deceased soon before her death or not as such kind of questions cannot be answered by this Court in proceedings u/s 482 Cr.P.C.
13. It is also argued by the learned counsel for the opposite party no. 2 that while protest petition was submitted by him, affidavits were also submitted of the mother of the deceased as well as of the sister of the deceased stating that police had not taken their correct statements and in those affidavits the version of the prosecution was asserted but the trial court instead of giving the opposite party no. 2 an opportunity to adduce the evidence has preferred to summon the accused under Section 191(1)(b) Cr.P.C. straight away solely on the basis of evidence, which has been gathered by the Investigating Officer during investigation, therefore, argument of learned counsel for the applicants that the mother sister of the deceased were not supportive of prosecution case seems to be doubtful at this stage. It also creates doubt in the mind of this Court as to why the information of demise of the daughter of opposite party no. 2 was not straight away given by the husband, father-in-law of the deceased to the opposite party no. 2, as the said information was communicated to him by some other person. It is found that there are number of fact, which need to be answered and assessed which is possible only after full fledged evidence comes on record and, therefore, simply considerable delay having taken place in moving the protest petition, does not appear to be sound reason to this Court to nip the proceedings in bud.
14. In view of above, I find that there is no infirmity in the impugned order and the same deserves to be upheld and is accordingly upheld. The present application u/s 482 SectionCr.P.C. is accordingly dismissed.
Order date:- 13.9.2019