Allahabad High Court
Sajid And Anr. vs State Of U.P. on 12 August, 2013
Bench: Naheed Ara Moonis
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 43
Case :- CRIMINAL APPEAL No. - 2926 of 2013
Appellant :- Sajid And Anr.
Respondent :- State Of U.P.
Counsel for Appellant :- Rajiv Gupta,Dileep Kumar,Rajrshi Gupta,Shristi Gupta
Counsel for Respondent :- Govt. Advocate
Hon'ble Naheed Ara Moonis,J.
Counter affidavit as well as written objection filed on behalf of State are taken on record.
Heard Shri Rajrshi Gupta, learned counsel for the appellants, learned AGA for the State and have been gone through the record.
The appellant no.1 is the brother in law while the appellant no.2 is the mother in law of the deceased.
The prosecution case in a nutshell is that a first information report was got registered by one Firoz Akhter that his sister, Gulrez Fatima was married with Waseem, who is the son of the appellant no.2 on 1.6.2003 and at the time of marriage sufficient amount of dowry was given. Soon after the marriage the in-laws who were not satisfied with the dowry, started torturing her to bring additional dowry of two lacs rupees and a car. The victim was facing brunt of her in-laws who had threatened for dire consequences. Even the respectable family members tried to settle the dispute and the parents of the victim also paid one lac rupees but their demand of remaining one lac rupees and one car continued and ultimately she was done to death by pouring kerosene oil and setting her on fire. She was admitted in hospital in a precarious burnt condition, where she had disclosed to the complainant that her husband and in-laws had set her on fire on account of non payment of one lac rupees. The case was registered under Sections 498A, 326, 504, 506 IPC and Section 3/4 Dowry Prohibition Act as case crime no.66 of 2003. During treatment the victim succumbed to the injuries therefore the case was converted under Sections 498A, 304B, 326, 504, 506 IPC.
It is argued by the learned counsel for the appellants that the appellant no.1, who is the brother in law of the victim had taken her to the hospital where she was admitted. The dying declaration of the victim was recorded in the presence of Naib Tehsildar on 13.12.2003, wherein she has specifically stated that as she could not adjust with her in-laws therefore she has committed suicide and none of the family member of her husband is responsible. The dying declaration was discarded by the learned Trial Judge wholly on irrelevant consideration. The Investigating Officer has also recorded her statement under Section 161 Cr.P.C. on 14.12.2003, when the victim was shifted to Lok Nayak Hospital, Delhi her dying declaration was again recorded on 15.12.2003.
It has further been argued that the case under Section 302 IPC was not found proved against the appellants, hence they were acquitted from the charge under Section 302 IPC and even according to the dying declaration no prima facie case is made out under Section 304B IPC, yet the trial court has proceeded and convicted the appellants under Section 304B IPC awarding maximum sentence of seven years. The appellant no.2 is an old lady, ailing with old aged disease. The appellant no.1 who is the brother in law of the victim is a married person and was implicated in the case merely because he was present at the time of incident. The sentence awarded by the trial court is against the evidence on record. There is no iota of evidence of cruelty or there was any demand of dowry. The relation with the deceased was cordial and harmonious. The appellants were on bail during trial and had not misused the liberty of bail. Now the appellants are in jail since the date of conviction i.e. 26.6.2013. There is no likelihood of early hearing of appeal in near future because there is dockets of pendency of old appeals and the purpose for filing the appeal would be frustrated as the chance of early hearing of the appeal is far flung, therefore the appellants may be released on bail during the pendency of appeal. In case they are enlarged on bail, they will not misuse the liberty of bail.
Per contra the learned AGA has opposed the prayer for bail and has contended that the victim has died within a very short span of marriage and there were specific allegations with regard to the demand of dowry, therefore the appellants do not deserve to be enlarged on bail.
Considering the facts and circumstances of the case and keeping in view of the submissions made by the learned counsel for the parties, without expressing any opinion on the merits of the case, let the appellants, namely, Sajid and Smt. Aneesa, convicted and sentenced in Session Trial No.170 of 2004 and Session Trial No.74 of 2005, State Vs. Sajid & another, arising out of case crime no.66 of 2003, under Sections 304-B, 498-A IPC and Section 4 of the Dowry Prohibition Act, P.S. Basrehar, District Etawah, be released on bail on their furnishing a personal bond each with two sureties each in the like amount to the satisfaction of the court concerned. The photocopies of the bonds so furnished be transmitted to this Court to be kept on record of the appeal.
Since record has already been received, the office is directed to prepare the paper books and list the appeal for hearing in due course.
Order Date :- 12.8.2013
Mustaqeem.
