Abubakar vs State Of U.P.
2016 Latest Caselaw 2416 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
RESERVED
 
Case :- CRIMINAL APPEAL No. - 1530 of 2015
 

 
Appellant :- Abubakar
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Rajesh Bahadur Singh Rath
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Arvind Kumar Mishra-I,J.

Heard at length Sri R.B.S. Rathaur, learned counsel for the appellant, Sri Abhay Veer Singh, learned AGA for the State and perused the record.

The instant criminal appeal has been preferred by appellant Abubakar son of Jumman @ Kasim against the judgment of conviction dated 16.12.2015 and order of sentence dated 17.12.2015 passed by Additional Sessions Judge, Court No. 3, Raibareli in Sessions Trial No.432 of 2010 arising out of Case Crime No. 1229 of 2009, under Sections 498-A, 304-B IPC and in the alternative under Section 302 IPC and 3/4 Dowry Prohibition Act, Police Station Mohanganj, District Raebareli, whereby the appellant has been sentenced to seven years rigorous imprisonment under Section 304-B IPC and two years imprisonment under Section 498A IPC with fine of Rs. 5,000/-, in case of default, he would have to suffer six months' additional imprisonment; one year imprisonment with a fine of Rs. 5,000/-, in case of default he would have to suffer three months' additional imprisonment, under Section 4 of Dowry Prohibition Act. Appellant has been acquitted of the alternative charge under Section 302 IPC and charge under Section 3 of Dowry Prohibition Act Sentences shall run concurrently.

Prosecution story as discernible from record appears to be; that first informant Meraj Ali gave typed / written report to the Superintendent of Police, Raebareli, dated 27.12.2009 wherein he stated that he got wedded his sister, Anisul to the present appellant Abubakar, according to Muslim tradition and custom and gave dowry as per his capacity but the in-laws of Anisul were not satisfied with the dowry and they used to maltreat and harass his sister. They used to say to his sister that her brothers are earning livelihood in Bombay, therefore, she should get Rs.5 lacs from them or she should get a plot in Bombay. In case the demand is not fulfilled, she will be killed. This kind of dowry demand was made on several occasions to the first informant but the first informant, with a view to avoid the situation, tried to reconcile the matter. Today, on 22.12.2009 at 9.00 am, Smt. Sabiran the mother-in- law of first informant's brother Shiraj, informed that Anisul's in-laws are beating her. Thereafter Abbas Ali, a co-villager also telephonically informed that Anisul's father in law Jumman @ Kasim, Nanad (sister in law) Arifa Bano and Wasreen, mother-in-law Rahimul and husband Abubakar had done her to death by strangulation.

The first informant and others somehow reached at the place of occurrence from Bombay when they found that post mortem examination had taken place and no person from his family was present. Therefore, first information report could not be lodged. The dead body of Anisul was taken home by the first informant. After performing last rites, the first informant went to the Station House Officer of concerned police station but he did not listen to him, then he had to come (before Superintendent of Police), Raebareli, to lodge the first information report. Report be lodged and stern action be taken so that such incident could be nipped in the bud.

It is gathered from record that this report was endorsed by the Superintendent of Police, Raebareli, on 29.12.2009 with direction to the Station House Officer, Police Station Mohanganj, to inquire into the matter and ensure further action. In pursuance of above, the S.H.O. directed Head Moharrir to register the case vide his endorsement dated 31.12.2009. Pursuant to aforesaid direction, the first information report was lodged at Police Station Mohanganj, District Raebareli on 31.12.2009, which is exhibit Ka-1 on record.

The contents of the FIR has been taken down in the check FIR at Crime no. 1229 of 2009 under Sections 498-A, 304-B IPC and 3/4 Dowry Prohibition Act, Police Station Mohanganj, District Raebareli at 12.30 pm. Check FIR is exhibit Ka-4. On the basis of entry so made in the check FIR, the case was registered against the appellant at report no. 25 of concerned GD at 12.30 p.m. On 31.12.2009 at case crime no. 1229 of 2009. Carbon copy of GD is exhibit Ka-5.

Record reflects that earlier on 22.12.2009, the information regarding death of Anisul was furnished to the concerned police station Mohanganj by the sister of deceased Anisa Bano on 22.12.2009 which was noted on report no. 42 in GD dated 22.12.2009 at 19.05 hours. Pursuant to above information, the police and Tehsildar arrived on spot and prepared inquest report of dead body of deceased Anisul which commenced at 8.15 a.m. and ended at 9.20 a.m. In the opinion of Panchans, it was thought proper to send the body for post mortem examination for ascertaining real cause of death. This inquest report is exhibit Ka-2.

Thereafter, relevant papers were prepared for sending the dead body for post mortem examination, i.e. Police Form-13 challan of dead body exhibit Ka-8, Photonash exhibit Ka-9, letter to Chief Medical Officer exhibit Ka-10 and the dead body was sent to District Hospital, Raebareli where post mortem examination was conducted by Dr. Arvind Kumar Srivastava on 23.12.2009 at 3.30 p.m. who found the following ante-mortem injuries on the dead body of Anisul.

Non continuous ligature mark of length 26 cm (total 30 cm length) x 1.5 cm on the front of neck between chin and larynx (thyroid cartilage) high up, obliquely placed. Knot is present on left side of neck between left angle of mandible and mastoid region, 4cm gap on the left side of neck. The groove of ligature mark is hard yellow and parchment like. On cutting, tissue under the neck is white, hard, glittering. Seliva has trickled down from the right angle of nostril. Ecchymosis on the ligature mark is well marked.

In the opinion of doctor, the duration of death was about one day and the cause of death was due to asphyxia as a result of ante-mortem injuries. Post mortem examination report is exhibit Ka-3 on record.

The Investigating Officer recorded statement of various witnesses and prepared site plan which is exhibit Ka-6 on record. The Investigating Officer after completing investigation filed charge sheet against Jumman @ Kasim, Abubakar and Smt. Rahimul under Sections 498A, 304B IPC and Section 3/4 of the Dowry Prohibition Act. The charge-sheet is exhibit Ka-7. Thereafter, the case was committed to the court of Sessions from where it was made over for trial to the court of Additional Sessions Judge, Rae Bareilly.

The learned trial court, after hearing the appellant on point of charge, recorded its prima-facie satisfaction for framing charge under Section 304-B, 498-A IPC and in the alternative under Section 302 IPC and 3/4 Dowry Prohibition Act. The charges were read over and explained to the accused who denied charges and opted for trial.

In turn, the prosecution was asked to adduce its testimony. The prosecution in all produced seven witnesses. A brief reference of the same is sketched herein under:

Meraj Ali PW-1 is the first informant. Smt. Nazma Bano PW-2 is sister-in-law (Bhabhi) of deceased. She has testified on point of dowry demand and cruelty perpetrated by in-laws of deceased. Abdul Raheem PW-3, brother of deceased. He has also testified on the same line as Pw-1 and PW-2. Dr. Arvind Kumar Srivastava PW-4 has conducted autopsy on the dead body of deceased Anisul on 23.12.2009 at 3.30 pm at District Hospital, Raebareli and he has proved the post mortem examination report exhibit Ka-3. Constable Shiv Chand Tiwari PW-5 is Head Moharrir who prepared check FIR and made relevant entries in the concerned GD when the case was lodged/ registered against the appellant on 31.12.2009 at police station Mohanganj. He has proved the check FIR as exhibit Ka-4 and relevant GD entry as Ka-5. He has also testified in his cross examination that on 22.12.2009, Smt. Anisa Bano wife of Mohd. Zahir gave report/ information regarding death of her sister Anisul by committing suicide and the same was entered in GD dated 22.12.2009 as report no. 42 at 19.05 hours. Aditya Kumar Shukla PW-6 is the Investigating Officer. He has proved various steps taken by him in completing the investigation. He has proved site plan (exhibit Ka-6) and the charge sheet (exhibit Ka-7). Ram Pal Tiwari PW-7 is the Tehsildar who prepared inquest report on 23.12.2009 and has proved the same as exhibit Ka-2. He also proved relevant papers as exhibit Ka-8, Ka-9 and Ka-10. Thereafter, evidence for the prosecution was closed and statement of appellant was recorded under Section 313 Cr.P.C. wherein he has termed his implication false on account of enmity and has claimed to be innocent.

The learned lower court, after hearing both the sides on merit and appraising the evidence on record, passed the impugned judgment of conviction dated 16.12.2015 and order of sentence dated 17.12.2015.

Consequently, this appeal.

Sri Rajesh Bahadur Singh Rathaur, learned counsel for the appellant has contended that in this case, the essential ingredients of causing dowry death have not been proved. Testimony on record reveals that the marriage in question is beyond seven years. Nazma Bano PW-2 wife of Shiraj Ali says that the marriage took place in June 2005. Abdul Raheem PW-3 brother of deceased says that the marriage took place in October 2004. Exact date of marriage has not been proved. All the prosecution witnesses of fact PW-1, PW-2 and PW-3 do not specify and state the exact date of marriage as to when it took place. Their testimony in this regard is doubtful and cannot be believed. It is established position of law that the facts which are initially required to be proved must be proved and then only presumption of law as laid down under Section 113B of Indian Evidence Act, 1872 can be raised and not otherwise.

Learned counsel further stressed that in this case the so called FIR is no FIR at all. This FIR dated 27.12.2009 was wrongly registered at police station Mohanganj on 31.12.2009 at 12.30 p.m because there was prior written report/ information regarding incident of death of deceased Anisul on 22.12.2009 which was taken down in the concerned GD of 22.12.2009 at report no. 42 at 19.05 hours. Pursuant to this information only, inquest report (exhibit Ka-2) of deceased Anisul was prepared by the concerned Tehsildar and the police personnel. It is established position of law that there cannot be two FIRs for the same incident. This information dated 22.12.2009 was withheld deliberately and not produced before the trial court.

In support of his view, learned counsel has placed reliance on the decision in the case of Musauddin Ahmed Vs. State of Assam reported in (2009) 14 SCC 541, Amit Bhai Anil Chandra Shah Vs. CBI reported in (2013) 6 SCC 348 and Gurdeep Singh Vs. State of Punjab reported in (2013) 10 SCC 395.

Relevant to mention that learned counsel for the appellant did not produce either copy of aforesaid citations except copy of case cited as Gurdeep Singh (supra). The citation shall be dealt with at relevant place in judgment.

The learned AGA in reply to aforesaid contentions submitted that admittedly, it is dowry death. All the ingredients of dowry death namely fact of marriage taking place within 7 years, demand of dowry, fact of cruelty for or in connection with demand of dowry have been proved. It was up to the appellant, the husband of the deceased, to have come out as to under what circumstances, the deceased died. But he failed to specify any such circumstance.

The deceased used to tell about torture and maltreatment meted out to her by her in-laws to her family members who have deposed categorically about the same before the trial court. The information so furnished on 22.12.2009 by the sister of deceased Anisa Bano at the police station was merely a chance information and it was not meant for initiating any penal action against culprits. Since it did not require so, therefore, an entry was made only in the concerned GD at report no. 42 on 22.12.2009 and the same cannot be treated to be FIR as required and meant by Section 154 and 157 of Cr.P.C. There can be full fledged information for taking action against the miscreants, if the same discloses commission of cognizable offence by some person and if it is so registered at a crime number then such information being proper information within meaning of Section 154 Cr.P.C. shall be treated to be the FIR.

Learned AGA further added that in the case of Upkar Singh Vs. Ved Prakash and others reported in (2004) 13 SCC 292, Hon'ble Apex Court also considered ratio in the case of T.T. Antony Vs. State of Kerala (2001) 6 SCC 1. He has submitted that under particular facts and circumstances of the case, there can be lodged two FIRs regarding the same incident. He has laid emphasis on para no. 3 of the decision and has claimed that the decision in Upkar Singh (supra) was pronounced by three Judges Bench of Supreme Court. He has added that presumption drawn under Section 113-B of the Evidence Act against the appellant is well founded on the material on record and there is no force in the appeal.

Considered above submissions also.

The moot points that arise for consideration in this appeal relates to the fact as to whether the first information report in question is second FIR and the first FIR prior in time dated 22.12.2009 was withheld by the prosecution? If so, its impact and effect? Whether the prosecution has been able to prove dowry death as required under Section 304-B IPC?

At the outset it would be convenient to deal with point of previous report which was noted in the relevant General Diary of 22.12.2009 at 19.05 hours at police station Mohanganj.

In this context, testimony has come forth and particularly, testimony of the prosecution witness Aditya Kumar Shukla PW-6, the Investigating Officer. He came across fact of entry of report at report no. 42 of GD dated 22.12.2009 at 19.05 hours at P.S. Mohanganj to the effect that the deceased committed suicide and he took carbon copy of the same. He has also stated that he has not mentioned about this fact in the case diary. He further submitted that he did not make this report part of investigation.

Relevant to take note (of fact) that Ram Pal Tiwari PW-7 prepared inquest report of the deceased Anisul. He has stated that he prepared inquest report on 23.12.2009. Obviously this report was taken down in the relevant GD and this fact has been proved by constable Shiv Chand Tiwari PW-5 in his cross examination. He has stated that he was posted as Head Moharrir at P.S. Mohanganj on 22.12.2009 when a written information was given which was noted in GD at report no. 42 at 19.05 hours. This witness has stated that this was only formal information, therefore, its entry was made in the relevant GD. This information was given by Smt. Anisa Bano wife of Mohd. Zahir. He has stated that it was informed that the deceased is her real sister and she has committed suicide. On this information, inquest report was prepared on the next date i.e. 23.12.2009 at 8.15 a.m. He has further stated that he also taken down entries in the relevant check FIR and GD of FIR on direction of Superintendent of Police and Station House Officer and case was registered and has proved the same as exhibit Ka-4 and exhibit Ka-5, respectively.

It is obvious that Smt. Anisa Bano the real married sister of deceased has not been examined either by the prosecution or by the defence. As per testimony on record, the information given on 22.12.2009 was a general information regarding death specifying suicide and nothing more or less was stated nor desired. It is obvious that after entry of this information was made in the relevant GD at report no. 42 on 22.12.2009, it was not assigned any case crime number, meaning thereby that it was not found proper to register any case for initiation of any criminal proceeding against any person.

At this stage, a bare perusal of the written report (exhibit Ka-1) reflects that this written report was made with specific allegation of dowry death against the appellant and his family members which was directed to be enquired into before lodging of information at the police station by the Superintendent of Police, Raibareli. Thereafter, after due inquiry for about 2 days, this information was taken as the first information report and lodged at case crime no. 1229 of 2009 on 31.12.2009 at 12.30 p.m., at P.S. Mohanganj, Raibareli. Obviously, this information at subsequent stage was real FIR made with assertion of commission of specific offence with a view to take proper legal action against the culprits and to investigate the matter and the general law is that the FIR should normally be taken to be that report which leads to investigation and pursuant to which the legal course is put into action as required under Sections 154 and 157 of the Cr.P.C. Not only this, even Hon'ble Supreme Court has also considered exhaustively the point under context in the case of Upkar Singh (supra) and under para 23, Hon'ble Court has categorically observed that lodging of counter complaint is not prohibited and Hon'ble Supreme Court has also considered a hypothesis. In this regard para 23 and 24 of the aforesaid decision are being extracted herein below:

23. Be that as it may, if the law laid down by this Court in T.T. Antony case is to be accepted as holding that a second complaint in regard to the same incident filed as a counter-complaint is prohibited under the Code then, in our opinion, such conclusion would lead to serious consequences. This will be clear from the hypothetical example given hereinbelow i.e. if in regard to a crime committed by the real accused he takes the first opportunity to lodge a false complaint and the same is registered by the jurisdictional police then the aggrieved victim of such crime will be precluded from lodging a complaint giving his version of the incident in question, consequently he will be deprived of his legitimated right to bring the real accused to book. This cannot be the purport of the Code.

24. We have already noticed that in T.T. Antony case this Court did not consider the legal right of an aggrieved person to file counterclaim, on the contrary from the observations found in the said judgment it clearly indicates that filing a counter-complaint is permissible.

Thus, it is obvious that another report/ FIR for the same incident is permissible and relevant, therefore to say that subsequently report cannot be an FIR in this case is not legally sustainable.

Now coming to the merit of the case, I have before me, testimony of prosecution witnesses of fact Meraj Ali, Smt. Nazma and Abdul Raheem PW-1, PW-2 and PW-3 respectively. They have stated that the marriage of deceased with the appellant took place in June 2005, prior to 7 years and in the year 2004 respectively.

Learned counsel for the appellant has vociferously claimed and stressed on testimony of Smt. Nazma Bano that as per her statement given in examination in chief, the marriage took place prior to 7 years, therefore, it is obvious that marriage is beyond 7 years period but the contention so raised subsides in view of clear cut calculation and mathematical statistics.

Admittedly, the incident took place on 22.12.2009 around 9-10 a.m., meaning thereby that the marriage in question must not have taken place prior to 22.12.2002 which period alone covers a total span of 7 years. Obviously, the testimony of Smt. Nazma Bano PW-2 was recorded on 01.11.2011. She has stated in her examination in chief that the marriage took place 7 years ago; this 7 years span is to be counted from the date of deposition that is 01.11.2011. Counting from that, solemnization of marriage falls in the year 2004. Thus, it is obvious that the marriage in question was solemnized between period 22.12.2002 to 22.12.2009.

The testimony of PW-1 Meraj Ali and PW-3 Abdul Raheem though gave two different years regarding solemnization of marriage but this does not generate any doubt, for the reason that the marriage is to be counted falling within 7 years period from the time of death of victim i.e.:- upward by 7 years from 22.12.2009. Thus, it does not make any difference whether the marriage took place in the year 2004 or 2005. If the testimony regarding solemnization of marriage would have placed fact of marriage falling prior to beyond 22.12.2002 then in that eventuality alone benefit would have been drawn in favour of the appellant. But that is not the actual factual position in this case.

Therefore, cumulative reading of testimony of prosecution witnesses of fact reflects that the marriage took place within 7 years of death of victim. Now in so far as the point of dowry demand is concerned, all the three witnesses have stated that soon after the marriage about 2 years, demand of dowry in the shape of Rs.5 lacs in cash or a plot in Bombay was raised which remained unfulfilled and the victim was maltreated/ tortured and harassed by the appellant. This perpetration of cruelty was told by the deceased to the prosecution witnesses. There is nothing dubious in their cross examination which may give any clue to the fact that they are not telling truth for any ulterior motive.

Here death in question is admittedly unnatural death. It has nowhere been established that the death in question was suicidal. It is a case of appellant that the death in question is suicidal. Circumstances and the testimony of witnesses of fact do not reflect that it is obviously a suicidal death.

In this regard, a reference to testimony of Dr. Arvind Kumar Srivastava PW-4 who conducted post mortem examination on the body of the deceased on 23.12.2009 at 3.30 pm can be appropriately made, that doctor has found ante-mortem injuries as non continuous ligature mark of length 26 cm (total 30 cm length) x 1.5 cm on the front of neck between chin and larynx (thyroid cartilage) high up, obliquely placed. Knot is present on left side of neck between left angle of mandible and mastoid region, 4cm gap on the left side of neck. The groove of ligature mark is hard, yellow and parchment like. On cutting tissue under the neck is white, hard, glittering. Saliva has trickled down from the right angle of nostril. Ecchymosis on the ligature mark is well marked.

The cause of death in the opinion of doctor was due to asphyxia as a result of ante-mortem hanging. Duration was said to be about 1 day old. Thus, the cause of death was asphyxia due to hanging. No doubt, there is no any other external injury on the body of deceased and the doctor, in his very last line of the testimony on page 3 of examination in chief, has stated that the death of deceased was possible at 9.00 am on 22.12.2009. The doctor witness has nowhere opined that sign of ante-mortem injury is ordinarily and reasonably indicative of suicidal death. In the absence of any such specific testimony by doctor how can one jump upon conclusion that the death in question is suicidal.

In all probabilities, it cannot be said that it is a case of suicidal death. The doctor witness has not been put any question in this regard by the defence. Only one single question put in his cross examination. In reply to the same, doctor witness has stated that the deceased might have taken food 2 and 1/2 hours prior to her death.

From perusal of post mortem examination report and after analyzing the ante-mortem injury as found on neck and after scrutinizing the entire testimony of doctor who conducted autopsy and proved post mortem examination report (exhibit Ka-3), it transpires that there is no whisper that the death in question is suicidal. It is quite surprising that the appellant has come out with theory of suicide by the deceased as she was issueless after marriage. But there is no supporting paper or testimony on record which may justify such a claim that the deceased in fact was fed up of her life and she was frustrated being issueless after marriage, due to which she committed suicide.

Even more surprising is the fact that statement of the appellant Abubakar was recorded under Section 313 Cr.P.C. on 16.09.2014, wherein also not a single word has been spelled on the point of death as to how and under what circumstances and due to what reason, the deceased has committed suicide and the claim of the appellant that sister of deceased Anisa Bano informed the police about suicidal death remains a paper work against factual reality. If Smt. Anisa Bano had any knowledge of suicidal death of her sister, she could have been produced even on behalf of defence. At least some application could have been moved for recording her testimony before the trial court, but the appellant did not take any worthy steps to prove his claim based on suicidal death augmented with fact that suicidal death has no nexus with the demand of dowry. It is obvious that the demand of Rs.5 lacs and a plot in Bombay in the alternative was persistent and continuous and she was subjected to cruelty and harassment for non-fulfillment of the same. This fact is abundantly established by the testimony of the prosecution witnesses.

Once it has been established that the death of Anisul was caused by bodily injury then it is obvious that it occurred otherwise than under normal circumstances and as per testimony of the prosecution witnesses, it is established that death took place within 7 years of marriage. It is also established that soon before her death, she was subjected to cruelty for or in connection with demand of Rs. 5 lacs and in the alternative a plot in Bombay and thus there arises presumption of dowry death by virtue of Section 113B of The Indian Evidence Act, 1872 which reads as hereunder:

113-B.  Presumption as to dowry death.-- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.

In such a situation when the prosecution has established factum of dowry death as mandated under Section 304B IPC thus inviting application of presumption under Section 113B of the Indian Evidence Act, it was up to the appellant to have come out with specific clarification of death, about its cause, if the same is not gathered from the scattered circumstances of this case. Factum of suicidal death is presumed to be in the knowledge of the appellant-husband. In the absence of any such clarification regarding factum of death on behalf of appellant, it will be presumed that the appellant caused dowry death of his wife Smt. Anisul. This presumption becomes even stronger when without adducing any testimony on the point of factum of suicidal death of Smt. Anisul, not a single word has been spelled on this point in the statement of the appellant recorded under Section 313 Cr.P.C. Everything can be given go by but this omission/ silence on the part of appellant does not come out with specific description regarding the factum of suicide.

The appellant, it appears, is taking shelter behind technicalities of this case which technicalities are not existing and not working to the advantage of the appellant. It can be summed up that the demand of dowry was persistently made by the appellant. There is presumption of dowry death raised against the appellant. This presumption was not rebutted by the appellant. The prosecution witnesses have given consistent version of dowry death.

Upon careful perusal and appraisal of the evidence of the prosecution witnesses, no apparent or inherent error or illegality is discernible. The aforesaid citation in the case of Gurdeep Singh (supra) regarding presumption of dowry death and import of 113 -B of Evidence Act as discussed by Hon'ble Apex Court in para no. 8 is not helpful to the appellant for the aforesaid reasons. The trial court has taken a panoramic view of the case and has considered the matter in its entirety and after careful perusal of evidence and circumstances has recorded finding of conviction which finding of conviction cannot be faulted with at this stage.

Therefore, the judgment of conviction dated 16.12.2015 and order of sentence dated 17.12.2015 passed by Additional Sessions Judge, Court No. 3, Raibareli in Sessions Trial No.432 of 2010 arising out of Case Crime No. 1229 of 2009, under Sections 498-A, 304-B IPC and in the alternative under Section 302 IPC and 3/4 Dowry Prohibition Act, Police Station Mohanganj, District Raebareli, is upheld in appeal.

Consequently the appeal being devoid of force is dismissed.

In this case, appellant Abubakar is in jail. He shall serve out the remaining part of the sentence imposed upon him in the aforesaid sessions trial.

Let a copy of this judgment be certified to trial court for intimation and necessary follow up action.

Order Date :- 10th May 2016

IrfanUddin