Chaman vs State Of U.P.
2012 Latest Caselaw 5996 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 

 

 
Court No. 35
 

 
Criminal Appeal  No.  1861  Of  1995
 
Chaman.....................................................................................Appellant
 
                                                              Versus
 
State of UP.............................................................................Respondent
 
                                              
 
Counsel for the appellant:   Sri Apul Misha, Amicus curiae  
 
Counsel for respondent :      Sri Ram Yash Pandey, A.G.A.
 

 
Hon. Rakesh Tiwari, J.

Hon. Anil Kumar Sharma, J.

( By Hon. Rakesh Tiwari, J.)

1. Heard counsel for the parties and perused the record.

2. This criminal appeal has been preferred by Chaman, son of Bindu Khan, resident of village Faridpur, Police Station Akarabad, district Aligarh against the judgment dated 26.10.1995 and order dated 27.10.1995 passed by Ist Additional District and Sessions Judge, Aligarh, by which he has been convicted under section 498-A, 304-B, IPC and sentenced to undergo two years' R.I. under section 498-A and life imprisonment under section 304-B IPC. Both the sentences were to run concurrently.

3. The appeal has been preferred on the ground that conviction of the appellant is against the weight of evidence on record; that the sentence is too severe; that trial court has committed gross mistake in not considering the evidence properly rather has convicted and sentenced the appellant on mere conjectures and that conviction and sentence awarded is bad in law.

4. According to the prosecution case, on 29.10.1993 a written report was submitted by Sher Ali to the Station Officer, Police Station Akarabad, Aligarth, alleging that his sister Naima, was married about 3-4 years back with appellant Chaman, son of Bindu Khan, resident of the same village according to the customs, in which dowry was given according to his capacity by his father but the appellant kept on raising his demand for a scooter which was beyond their capacity. Since the complainant was not able to give scooter, his sister Naima was subjected to harassment by the appellant, therefore, the informant had brought this fact in the knowledge of the persons who were instrumental in settlement of the marriage between appellant Chaman and Smt. Naima. The mediators had asked appellant Chaman to restrain himself from harassing Naima but he did not mend his ways. About four days earlier his sister had come to the house of the complainant with her two months' old baby. But appellant Chaman came to his house and took Smt. Naima and baby to Aligarh for administering of polio drops to the baby and thereafter they returned to the house of the complainant. However, on 28.10.1993 at about 10 P.M. in the night appellant Chaman came to his house where Smt. Naima was sleeping with her baby on the cot beside the cot of their mother. He woke her up and took her outside the house. Sher Ali and his brother Jamat Ali, did not stop Smt. Naima from going out with appellant Chaman as it was a matter between husband and his wife. Smt. Naima did not return after lapse of a considerable period of time, they felt disturbed. Then they heard shrieks of her sister, on which he alongwith his brother Jamat Ali and mother, came out of the house and saw in the moon light that appellant Chaman was catching hold of his sister and drowning her in the pond in front of their house. On seeing this, they tried to apprehend the appellant but he ran away.. They then waded in the pond and found Smt. Naima lying dead in water with her DUPPATA around her neck. That thereafter her body was taken out with help of some villagers who had arrived and was kept on the Chabutara in front of the house. This incident is said to have been committed at about 10.15 P.M on the intervening night of 28/29.10.1993. The written report was registered in the G.D. No. 154 of 1993 registering case crime No. 203 of 1993 against the appellant Chaman son of Sri Bindu Khan, resident of Faridpur, P.S. Akarabad, district Aligarh, under section 498-A,305-B IPC, Police station Akarabad, district Aligarh. Investigation of the case was taken up by Dy. S.P. Sri Yashwant Singh, C.O. Sikandrarau.

5.After inquest by the Investigating Officer, the body of the deceased was sent for post mortem by body carrier with 276 CP Ved Ram and 796 CP Ram Prakash of P.S. Akarabad, Aligarh. The investigating officer recorded the statement of the complainant, inspected the site and took down the statements of Jamat Ali, Smt. Shafifan, Smt. Nawab Begum, Smt. Shahida Begum, Qazi Hamid Khan, Manzoor Khan, Islam Khan and others and prepared the site plan Ex. Ka-5, took the Niqahnama in custody, recorded statement of Head Moharrir, of the witnesses of inquest and the constables who carried the dead body for postmortem.

6.Postmortem examination on the cadaver of deceased Smt. Naima was conducted by Dr. P.K. Tyagi on 20.10.1993 at 4.30 P.M., who on external examination reported that deceased aged about 20 years, was average built and she had died about a day earlier, rigor mortis was present on both upper & lower extremities and on dependent parts. Nails, mouth and lip cynosed, tongue protruded swollen in between teeth, face swollen and bloody froth coming out of nostrils. No external injury was seen on the body of the deceased. However on incising the neck, subcutaneous tissues showed extravasation of blood and cornea of hyoid bone fractured. The brain with its membrance, both the lungs, trachea and bronchi with other vulnerable parts of body were congested. There was blood mixed froth in the trachea and bronchi. About 6 oz pasty food material was found in the stomach. In the opinion of the doctors, the deceased died of asphyxia as a result of ante mortem strangulation.

7. After completion of the investigation, charge sheet was submitted against the accused appellant and the case was committed to the court of sessions. Charges were framed against him under section 498-A,304-B IPC, on 1.9.1994 which the appellant Chaman denied and claimed to be tried.

8.In order to prove its case, the prosecution examined Jamat Ali P.W. 1, Sher Ali P.W. 2 (the complainant), Dr. Qamar Ahmad P.W. 3, HC Mahendra Singh Chahar P.W.4, and Sri Yashwant Singh, C.O., Hathras P.W.5. Jamat Ali P.W.1 and Sher Ali P.W.-2, who were brothers of deceased Smt. Naima, narrated the eye witness account of the incident. They also stated about demand of a scooter in dowry by the accused appellant and his conduct of harassing and torturing Smt. Naima for it. In their evidence these two witnesses stated that they had seen the appellant Chaman submerging Smt. Naima in the pond and they alongwith Iqbal, Abrar and other villagers who had come by that time, had tried to apprehend the accused appellant but he swam to the shore and ran away toward the West and that they had recognised him in the Moon light.

9. Another fact which was brought in the statement of Sher Ali P.W.2, the complainant, was that his father had succumbed to injuries in a motor accident after about a year of marriage of Smt. Naima with accused appellant Chaman. A sum of Rs. 40,000/- was awarded as compensation to them in that claim petition and since then the appellant had been repeatedly pressing his demand for scooter. Sher Ali P.W. 2 also proved the written report submitted to the police by him which was exhibited as Ex. Ka-1. Dr. Qamar Ali P.W. 3 in his statement stated that autopsy on the dead body of Smt. Naima was conducted in his presence by Dr. P.K. Tyagi; that there was no external injury on the person of the deceased but when her neck was exposed by incision, there was haemotomma under the subcutaneous tissues with a fracture of hyoid bone. He narrated the position of the body and its organs and proved the postmortem report Ex. Ka- 2. Head constable Mahendra Singh P.W. 4 proved that he had prepared the chick report and had registered case crime no. 203 of 1993 in the G.D. Whereas Sri Yashwant Singh, I.O. P.W. 5 stated about the inquest, sending of the body of the deceased for postmortem and the witnesses he had examined during investigation as well as proved the chargesheet submitted by him after investigation.

10. Accused appellant in his examination under section 313, Cr.P.C. denied the entire allegations and stated that he was falsely implicated on account of enmity. He, however, did not examine anyone in his defence.

11. Upon consideration of the evidence on record and hearing counsel for the parties, the trial court by the impugned judgment and order convicted and sentenced the appellant under sections 498-A,304-B IPC as stated earlier.

12. Referring to paragraph no. 13 of the impugned judgment and order, learned counsel for the appellant has submitted that on the face of clear finding recorded by the trial court that it is not inclined to believe that the witnesses had actually seen the incident of doing away of Smt. Naima by the accused appellant and drowning her body in the pond, the conviction and sentence recorded against the appellant by it, is bad in law. He further submitted that entire prosecution story has been concocted to falsely implicate the appellant. According to him, had the appellant any thought of killing Smt. Naima, he could have easily done her away earlier when she had gone to Aligarh with him for administering of Polio drops to the child. Lastly, he urged that as the appellant is in jail for the last about 18 years, a lenient view may be taken on the question of sentence. In this regard, he has relied upon the decisions rendered by the Apex Court in G.V.Siddaramesh Vs. State of Karnataka (2010 (68) ACC-1008) and Ramesh Pandey Vs. State of U.P. ( 2010 (69) ACC 544).

13. Per contra, learned A.G.A. has argued that F.I.R. of the incident is prompt; that allegation of demand of a scooter in downy by the accused from his in-laws as well as harassment meted out to deceased Smt. Naima on this score is also proved by the testimony of the witnesses; that the prosecution case that Smt. Naima was done away by the accused appellant, is established by the ocular and medical evidence on record. According to him, the trial court has rightly convicted and sentenced the appellant under section 498-A,304 B IPC and the appeal is liable to be dismissed as the accused appellant deserves no sympathy in this case for leniency in sentence having brutally strangulated his wife for dowry and not caring even about the infant child.

14. After hearing learned counsel for the parties and on perusal of the record, we find that four factual positions are to be established for the offence punishable under section 304-B, i. e. is (i) death of the wife has occurred by burns or bodily injury or otherwise than under normal circumstances, (ii) such death should have occurred within seven years of her marriage, (iii) she was subjected to cruelty or harassment by the husband or his relatives, and (iv) such cruelty or harassment should be for or in connection with demand for dowry soon before her death.

15.In the present case, the aforesaid requirements are fully satisfied. P.W. 1 and P.W. 2, brothers of the deceased have testified that their sister Smt. Naima was married with accused appellant about three and half years ago. I.O. P.W. 5-Yashwant Singh in his testimony has stated 11.5.1991 as the date of the marriage of deceased Smt. Naima with the appellant based on their Nikahnama, Dr. Qamar Ahmad P.W. 3 has given cause of death of the deceased as asphyxia due to strangulation. Therefore, it is proved that deceased Smt. Naima has died within seven years of her marriage with the appellant otherwise than under normal circumstances. Though the trial court has disbelieved the prosecution case that P.W. 1 and 2 had seen the accused appellant drowning Smt. Naima by force in water of the pond as pointed out by the learned counsel for the appellant, but the postmortem repot clearly establishes that her death was unnatural and she died of strangulation. A categorical finding has also been recorded by the court below that the allegation of demand of scooter as dowry by the appellant from his in laws was fully established by the testimony of P.W.1 and 2. The trial court in paragraph no. 15 of its judgment further recorded that there is clinching evidence on record to establish that Smt. Naima was subjected to cruelty by her husband because the in-laws of the accused appellant could not fulfill the demand of a scooter in dowry. Even though the part assigned to the appellant of drowning the body of Smt. Naima by force in the pond has been attributed by the court to some mistaken inferences drawn by the two witnesses P.W. 1 and 2, yet the post mortem report is not against the ocular version given by the eye witnesses. These witnesses P.W. 1 and P.W. 2 have stated that they had seen Smt. Naima going out of the house at night with the husband Chaman- the appellant but had not stopped her as it was a matter between the husband and the wife. They had then heard her shrieks,when she was being strangulated and by the time they came out of the house, they saw the accused forcing her body down in water, which they thought was drowning of Smt. Naima by her husband in the pond adjacent to the Chabutara of their house. If Chaman was innocent or he was trying to save his wife from drowning, his running away from the place and the Dupatta around her neck used for strangulating her, could not be explained by the counsel for the appellant. The postmortem report establishes the injuries on the neck of the deceased which goes to show that her death was neither natural nor accidental. All the links of circumstantial events establish beyond doubt that appellant Chaman was the last person with whom Smt. Naima his wife was seen alive, going out of the house and sometime later her shriek is heard and he is found in act of submerging her body in the pond. The chain of circumstantial evidence is therefore complete to hold that appellant Chaman and he alone had done away with his wife Smt. Naima and no one else.

16. In all the facts, circumstances of the case and the evidence on record, the conclusions drawn and the findings recorded by the trial court, do not suffer from any infirmity or illegality. Since by the act of the accused appellant, a two months' old baby has been deprived of his natural right of motherly love and affection for the whole of his life, in our considered view, the appellant is not entitled for any leniency in so far as the sentence is concerned. Moreover, the decisions relied upon by the counsel is clearly distinguishable on facts and the judgments were rendered by the Apex Court in peculiar facts and circumstances of that case.

17. We, therefore, do not find any force in the present appeal which is accordingly dismissed upholding the impugned judgment and order passed by the trial court.

18. Sri Apul Mishra, Amicus Curiae, shall be paid Rs. 2100/- as remuneration by the State, within a period of one month from day.

19. Let a certified copy of this judgment be sent to the trial court through the C.J.M. concerned forthwith for compliance.

Dated: 11.12.2012

SNT/