Sarafat & Others vs State Of U.P.
2015 Latest Caselaw 3777 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Judgement Reserved on 6.10.2015
 
  	                              Judgement Delivered on 3.11.2015               
 

 
Case :- CRIMINAL APPEAL No. - 5370 of 2010
 

 
Appellant :- Sarafat & Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Rajeev Kumar Singh Parmar,Arun Kumar Tripathi,Manoj Kumar
 
Counsel for Respondent :- Govt. Advocate
 

 
		CONNECTED WITH 
 

 
Case :- CRIMINAL APPEAL No. - 6734 of 2010
 

 
Appellant :- Aale Hasan
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Rajeev Ku. Singh Parmar,Arun Kumar Tripathi
 
Counsel for Respondent :- Govt. Advocate
 

 

 
Hon'ble Om Prakash-VII,J.

Both the aforementioned connected criminal appeals have been filed by the appellants against the common judgment and order dated 9.8.2010 passed by Additional Sessions Judge, Court No.3, Farrukhabad in Sessions Trial No.125 of 2007 (State Vs. Aale Hasan and others) pertaining to crime no.C-1 of 2006, P.S. Campel, District Farrukhabad, whereby the trial Court convicted and sentenced all the accused-appellants for the offence under section 498-A IPC to undergo two and a half years rigorous imprisonment and a fine of Rs.5000/-, for the offence under section 304-B IPC to undergo ten years rigorous imprisonment and for the offence under section 3/4 Dowry Prohibition Act to undergo five years rigorous imprisonment and a fine of Rs.5000/- to each of the accused-appellants. The trial Court has also ordered additional imprisonment in default of payment of fine imposed upon the accused-appellants.

Since both the aforesaid connected criminal appeals are arising out of a common judgment and order and have been heard together, they are being decided by a common judgment and order.

It was reported that appellant no.4 Istada alias Sirazan died during pendency of the appeal, therefore, vide order dated 6.10.2015 the appeal filed on her behalf has been abated.

Prosecution story, in nutshell, as unfolded in the first information report (In short 'F.I.R.') is as follows :

An application under section 156 (3) Cr.P.C. (Ex.Ka.-1) was moved before the Chief Judicial Magistrate, Farrukhabad by the complainant P.W.1 Allajadi with the averments that she is the resident of village Bahawalpur, P.S. Campel, District Farrukhabad. She performed the marriage of her daughter Noorjahan with the appellant Aale Hasan according to Islamic customs, rituals and traditions after giving dowry according to her capacity in the month of April 2004. Just after few days of marriage, the in-laws of her daughter started causing cruelty and harassment to her to bring Rs.10,000/- in cash and a buffalo on account of demand of dowry. The deceased told her in-laws that her father has died and the economic condition of her old aged mother is not good enough to fulfill their demand of dowry. The members of her in-laws' family on account of non-fulfillment of demand of dowry made by them, expelled her from the house only with the clothes worn by her. When the daughter of the informant came at her parental house, she narrated all the facts to the informant. Thereafter, informant and her elder daughter made request to her in-laws and tried to pacify the matter, but they remained adamant on their demand and refused to keep her daughter without fulfilling the demand. On 3.9.2005 at about 5:00 p.m., accused Aale Hasan, Sarafat and his wife, Nekshey and Istada came at the resident of the elder daughter of the informant, where the informant was staying at that time for treatment of her eyes, and took forcibly the deceased with them in the jeep. They also threatened her with the dire consequences and stated that she defamed them in the society. They also stated that they will marry Aale Hasan again after killing her. Informant has made complaint about this fact to the City Magistrate and other Authorities to ensure the security of her daughter. On 12.9.2005 at about 5:30 p.m., information was given by the villagers to the informant that her daughter Noorjahan was done to death by the members of her in-laws' family and they surreptitiously removed the dead body of the deceased. When the informant and her daughter reached at the place of incident, the members of the in-laws family were not present there. She informed about the offence committed by the accused-persons at Police Station Campel, but no report was lodged at that time and no action was taken by the police concerned. Thereafter, application was given to the Superintendent, Farrukhabad, Chairman - Human Rights Commission, Delhi and I.G., Lucknow through registered post, but still no action was taken. The application under section 156 (3) Cr.P.C. was moved by the informant along with the affidavit.

On the application moved by the informant under section 156 (3) Cr.P.C., concerned Magistrate passed the order for registration of the F.I.R. and investigation of the case after obtaining the report from the concerned police.

On the basis of the order passed on the application under section 156 (3) Cr.P.C., concerned police registered the case on 29.1.2006 by lodging the F.I.R. (Ex.Ka.-4) against the accused persons for the aforesaid offences. G.D. entry was also made.

The investigating officer recorded the statement of the witnesses and prepared the site plan (Ex.Ka.-3) visiting the place of occurrence and after fulfilling the formalities, submitted the charge-sheet (Ex.Ka.-2A) against the accused-persons.

Concerned Magistrate took the cognizance in the matter and committed the case to the Court of Sessions, as the same was exclusively triable by the Court of Sessions.

Accused-appellants appeared before the Court and the trial Court framed charges on 9.4.2007 against the accused-appellants for the offence under sections 498-A, 304-B IPC and 3/4 Dowry Prohibition Act to which accused-appellants pleaded not guilty and claimed their trial.

Prosecution, in order to prove its case, examined P.W.1. Allajadi, complainant and mother of the deceased Noorjahan, P.W.2. C.O. Vipul Kumar Srivastava, the investigating officer of the case, P.W.3 Constable Moharrir Man Singh, the writer of Chick F.I.R., P.W.4 Rehana, the elder sister of the deceased.

After conclusion of the prosecution evidence, trial Court recorded the statement of the accused-appellants under section 313 Cr.P.C. in which they stated the prosecution evidence to be false and claimed them innocence. They denied the allegations made against them and specifically stated that they never made any dowry demand from the deceased, as has been alleged in the first information report. Accused-appellant Aale Hasan stated that the deceased had gone to her parental house on her own free will. Accused-appellant Sarafat and her daughter Shabana claimed that they were living separately on the date of offence.

The trial Court after hearing the parties and on the basis of evidence available on record convicted and sentenced the accused-appellants as aforesaid. Hence, this Appeal.

I have heard Sri Sujeet Kumar, learned counsel for the appellants in both the appeals, Sri Zafeer Ahmad, learned A.G.A. for the State and perused the entire record.

Learned counsel appearing for the appellants submitted that the F.I.R. was lodged delayed with ulterior motive. No plausible explanation was given by the informant regarding the delay. Specific plea was taken by all the appellants, except the appellant Aale Hasan, of separate living, but the trial Court did not consider this fact. Offence said to have been committed on 3.9.2005 was also not proved beyond reasonable doubt. No information in this regard was ever given to the authorities concerned. There is only oral version of the witnesses. No documentary evidence was produced in this regard. Prosecution could not prove the demand of dowry made to the deceased and did not discharge its initial burden to connect the accused-appellants with the death of the deceased and the demand of dowry, cruelty & harassment said to be extended to the deceased. It was further submitted by the learned counsel for the appellants that the death of the deceased was natural, therefore, offence under section 304-B IPC is not attracted in the present matter. At what point of time and place the said demand was made by the appellants is also not clear from the prosecution evidence. There are general allegations against all the appellants. Offence under section 3/4 Dowry Prohibition Act is also not established from the evidence. It was further submitted that the prosecution having miserably failed to establish the ingredients of the aforesaid offences, the impugned judgment is liable to be set aside. The finding of the trial Court regarding conviction and sentence imposed upon the appellants are perverse. Accused-appellants are languishing in jail in this matter from the date of judgment. They were also in the custody during trial for some time.

Learned A.G.A. argued that the mother and sister of the deceased have proved the demand of dowry made by the accused-appellants. Cruelty and harassment caused by the accused-appellants for or in connection with the said demand were also proved by the prosecution witnesses. Death of the deceased was not natural, but was otherwise than under normal circumstances. The deceased died in her matrimonial home within 7 years of her marriage and before her death, she was subjected to harassment and cruelty caused by her husband and other in-laws members of family on account of demand of dowry. It was further submitted that all the necessary ingredients to constitute the offence under sections 498-A, 304-B IPC and 3/4 Dowry Prohibition Act were proved by the prosecution. The trial Court findings are based on the correct appreciation of the evidence available on record. Accused-appellants could not prove that they were living separately from the deceased and her husband before or on the date of offence. The sentence awarded to all the accused-appellants are liable to be sustained.

I have considered the rival submissions advanced by the learned counsel for the parties and have gone through the entire record carefully.

A perusal of the entire record shows that the first information report was lodged in the present matter on the basis of the order passed on the application under section 156 (3) Cr.P.C. moved by the informant on 29.9.2005. Offence is said to have been committed on 12.9.2005. The dead body of the deceased is said to have been surreptitiously buried. There is no postmortem report. Accused-appellants were not able to establish that the deceased was suffering from any illness or disease and due to that reason, she died. There is absolutely no evidence at all on record, except the oral version of P.W.1 and P.W.4, regarding the demand of dowry made by the accused-appellants from the deceased. Prosecution could also not place any material before the trial Court (except the oral statement) to show the complaint made by the informant regarding dowry demand and the act done by the accused-appellants on 3.9.2005. The trial Court finding is that prosecution was able to prove the marriage between the deceased and the appellant Aale Hasan within seven years of her death and also the dowry demand made by the accused-appellants and cruelty & harassment caused by them to the deceased for or in connection with the said demand of dowry made from the deceased soon before her death. The trial Court was also of the view that death of the deceased will be presumed in the facts and circumstances as otherwise than under normal circumstances and all the necessary ingredients to constitute the offences under sections 498-A, 304-B IPC and 3/4 Dowry Prohibition Act were proved by the prosecution.

Before discussing the findings of the trial Court comparing with the evidence available on record in consonance with the submission raised by the learned counsel for the parties, it is made clear that if the prosecution story as a whole is taken into consideration, then one fact is clear that additional demand of dowry was made after the marriage. It is not the case of the prosecution that any demand was made before or at the time of marriage. Section 3 of the Dowry Prohibition Act attracts in the cases of giving or taking of the dowry and Section 4 provides punishment on account of demanding of dowry.

So far as the delay in lodging the first information report is concerned, certainly application under section 156 (3) Cr.P.C. was moved on 29.9.2005 after a gap of about 17 days of the occurrence. Reason for delay in moving the said application has been explained by the informant that she knocked the door of the local police earlier and when no action was taken by the local police, a complaint to the S.S.P. concerned was made through registered post. Information was also given to other higher Authorities. When no action was taken, then the application under section 156 (3) Cr.P.C. was moved. Considering the entire facts and circumstances of the case and keeping in view the fact that the informant is a widowed lady, she received information from some other person about the death of her daughter and thereafter she reached the place of occurrence, but she did not find the dead body of the deceased, as the same was surreptitiously buried by the accused-appellants. She has not only mentioned the facts giving information to the authorities regarding offence at the earliest possible time in the application under section 156 (3) Cr.P.C., but also she deposed the same facts before the trial Court. Considering the nature of the offence and the circumstances under which the present offence was committed, the finding recorded by the trial Court regarding explanation offered by the prosecution on point of delayed F.I.R. cannot be termed to be illegal or perverse. In the present matter, delay has been properly and satisfactorily explained by the prosecution.

As far as the offence dated 3.9.2005 is concerned, it was the prosecution case that all the accused-appellants had come to the house of the elder daughter of the informant and took back forcibly the deceased with them beating her. Certainly, there is only oral version of the prosecution witnesses. No evidence was adduced by the prosecution to establish this fact that informant had made any written complaint to the authorities as has been mentioned in the written report.

So far as the demand of dowry, cruelty and harassment for or in connection with the demand of dowry soon before her death is concerned, a general allegation was levelled in the written report and the evidence was adduced by the prosecution that all the accused-appellants had made additional demand of dowry of Rs.10,000/- and a buffalo. Prosecution could not specify that which of the accused-appellants have made the said demand on which date and place. It is a general allegation which could not be taken to be linked with all the accused-appellants to connect them with the present offence. It is an admitted case of the prosecution that accused-appellants Aale Hasan, who is the husband of the deceased, was aged about 45 years at the time of incident and the deceased was his second wife. There were children born out from the wedlock of the first marriage of the accused-appellant Aale Hasan. The demand made in the matter as dowry, could only be attributed to the husband of the deceased i.e. accused-appellant Aale Hasan, but not to the other accused-appellants. Appellants Nekshey is the devar, Sarafat is the jeth and Saranoo is the jethani of the deceased. How they were benefited with the said demand or how they can be connected with the said demand, the prosecution evidence in this regard did not inspire confidence of the Court to connect the other family members where there are general allegations of demand of dowry. There must be existence of proximate live link between the effect of cruelty and harassment based on dowry demand and the death of the deceased with the accused-appellants.

In the present matter, on close analysis of the entire evidence, there is general allegation of dowry demand, which could only be attributed to the accused-appellant Aale Hasan, the husband of the deceased. Other accused-appellants could not be held responsible in the present matter for the said demand of dowry and causing cruelty and harassment to the deceased looking to their status and also considering this fact that there was no such demand made before or at the time of marriage and there is no documentary evidence regarding complaint said to have been moved by the informant to the City Magistrate, Farrukhabad. The said demand appears to have been levelled against other accused-appellants namely Sarafat, Saranoo and Nekshey after the death of the deceased.

Thus, finding recorded by the trial Court against the appellants Sarafat, Saranoo and Nekshey is not sustainable regarding commission of the offence under sections 498-A, 304-B IPC and 3/4 Dowry Prohibition Act. Prosecution could not prove the essential ingredients as required under the law to presume taking recourse of the provision of section 113-B of the Evidence Act against the appellants Sarafat, Saranoo and Nekshey to commit the aforesaid offence. The conviction and sentence imposed by the trial Court vide impugned judgment and order against the appellants Sarafat, Saranoo and Nekshey is not liable to be sustainable.

As far as the conviction and sentence against accused-appellant Aale Hasan, who is the husband of the deceased, is concerned, burden lies upon him to explain under what circumstances the deceased died. He has not discharged the burden lies upon him. Prosecution was able to establish from its evidence that the deceased died within seven years of her marriage and she was subjected to cruelty and harassment by the accused-appellant Aale Hasan for or in connection with the demand of dowry i.e. Rs.10,000/- and one buffalo after the marriage soon before her death. Death of the deceased in the facts and circumstances of the case could also be presumed to be otherwise than under normal circumstances. All the necessary ingredients to establish the offence under sections 498-A, 304-B IPC and 4 Dowry Prohibition Act against the accused-appellant Aale Hasan were proved by the prosecution beyond reasonable doubt. The burden shifted upon the accused-appellant Aale Hasan was not discharged, hence the trial Court finding regarding conviction of the accused-appellant Aale Hasan for the commission of the offence under sections 498-A, 304-B IPC and 4 Dowry Prohibition Act is not liable to be interfered with, but conviction and sentence regarding offence under section 3 of the Dowry Prohibition Act is not in accordance with law and the accused-appellant Aale Hasan is liable to be acquitted for the offence under section 3 of the Dowry Prohibition Act.

Learned counsel for the appellants submitted that appellant Aale Hasan has served out a substantial portion of the sentence i.e. about seven years. Minimum sentence provided under the law for the offence under section 304-B IPC is of seven years. Dead body of the deceased was not recovered. No postmortem was done. There is no evidence on record to establish that any demand of dowry was ever made before or at the time of marriage. Therefore, a lenient view may be taken in the matter by punishing the accused-appellant Aale Hasan for the minimum sentence provided under the law.

I have considered the submission of the learned counsel for the appellant on this aspect and comparing the submission with the sentencing policy laid down by the Hon'ble Supreme Court in Sumer Singh Vs. Surajbhan Singh and others (2014) 7 SCC 323, I am of the view that if the accused-appellant Aale Hasan is punished for the offence under section 304-B IPC for a minimum sentence of seven years provided under the law, the purpose for sentencing the accused to deter the crime would be sub-served. It would also meet the ends of justice and would also conform the conscience of the society. The sentence proposed to be awarded against the accused-appellant Aale Hasan in the facts and circumstances of the case would not be as giving undue sympathy to him.

For the reasons mentioned above, both the Appeals having some merit deserve to be allowed in part and the same are partly allowed.

Conviction and sentence imposed by the trial Court upon the appellants Sarafat, Saranoo and Nekshey for the offences under sections 498-A, 304-B IPC and section 3/4 Dowry Prohibition Act is liable to be set-aside and is hereby set-aside. Appellants Sarafat, Saranoo and Nekshey are acquitted of the charges under sections 498-A, 304-B IPC and section 3/4 Dowry Prohibition Act. If appellants Sarafat, Saranoo and Nekshey are in custody, they be released from the custody forthwith. If they are not in custody, they need not to surrender.

Conviction of the accused-appellant Aale Hasan for the offence under section 498-A, 304-B IPC and section 4 Dowry Prohibition Act is hereby confirmed. The sentence imposed upon the accused-appellant Aale Hasan by the trial Court for the offence under section 498-A IPC is also affirmed, but the sentence imposed for the offence under section 304-B IPC is liable to be modified and is accordingly modified and reduced to the extent of seven years rigorous imprisonment in place of ten years. Similarly, sentence imposed for the offence under section 4 Dowry Prohibition Act is also modified and reduced to the extent of two years rigorous imprisonment and a fine of Rs.3000/-. In default of payment of fine, to undergo additional imprisonment of three months is also ordered.

Conviction and sentence imposed upon appellant Aale Hasan for offence under section 3 of the Dowry Prohibition Act is hereby set-aside. Appeallant Aale Hasan is acquitted of the charge under section 3 of the Dowry Prohibition Act.

The record of the trial Court along with copy of the judgment be sent to the Court concerned for compliance. Compliance report be also submitted to this Court.

Dtd./- : 3rd November, 2015.

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