Ahsan And Another vs State Of U.P.
2018 Latest Caselaw 3489 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. 1.
 
Criminal Appeal No. 5664 of 2013.
 
Ahsan and another vs. State of U.P.
 
Hon'ble Ramesh Sinha, J.

Hon'ble Dinesh Kumar Singh-I, J.

(Delivered by Hon'ble Ramesh Sinha, J.)

1. Heard Sri Ajay Kumar Mishra, learned counsel for the appellants, Sri G.P. Singh, learned A.G.A. for the State and perused the record.

2. This criminal appeal has been filed against the judgment and order dated 28.11.2013 passed by Additional Session Judge/Special Judge (Prevention of Corruption Act), Meerut in S.T. No. 476 of 2009 and 529 of 2009 arising out of case crime no. 23 of 2009 under sections 498-A/304-B I.P.C., alternative charge under section 302 I.P.C. and sections 3/4 D.P. Act, police station Bhawanpur, District Meerut by which appellant no. 1 is convicted and sentenced under section 304-B I.P.C. for life imprisonment and is also imposed Rs. 10,000/- in default of which further simple imprisonment of two years and under section 498-A I.P.C. for two years simple imprisonment with a fine of Rs. 1,000/- and in default of payment of fine further simple imprisonment of six months and under section 3 D.P. Act for a period of two years simple imprisonment with a fine of Rs. 1,000/- and in default of payment of fine further simple imprisonment of six months and under section 4 of D.P. Act for a period of one year simple imprisonment with a fine of Rs. 500/- and in default of payment of fine further simple imprisonment of three months. By the said judgment and order, the Additional Session Judge/Special Judge (Prevention of Corruption Act), Meerut has convicted and sentenced appellant no. 2 under section 304-B I.P.C. for 12 years rigorous imprisonment with a fine of Rs. 5,000/- in default of which further simple imprisonment of one year and under section 498-A I.P.C. for two years simple imprisonment with a fine of Rs. 500/- and in default of payment of fine further simple imprisonment of six months and under section 3 D.P. Act for a period of two years simple imprisonment with a fine of Rs. 1,000/- and in default of payment of fine further simple imprisonment of six months and under section 4 of D.P. Act for a period of one year simple imprisonment with a fine of Rs. 500/- and in default of payment of fine further simple imprisonment of three months.

3. The prosecution case in brief is that the informant Waheedu lodged an F.I.R. against the appellants along with Furkan and Mobeen on 22.1.2009 with an allegation that he married his daughter with appellant Ahsan on 25.3.2008 and has spent Rs. 1.5 lacs in the marriage and has further given Rs. 5100/- to appellant in cash but the appellant Ahsan, his mother appellant no. 2 Seeda, his real brother Furkan and uncle Mobeen were not satisfied with the articles given in the marriage and were demanding Rs. 50,000/- as dowry from the deceased and if the same was not met by her father, she would be killed. The deceased Yasmeen informed about the said fact to her father-informant several times and the informant expressed his inability to give the said amount because of his poverty. The appellants and other accused persons had taken the deceased from her parental house a week prior to the incident and the informant had given Rs. 20,000/- to the accused-appellants by taking a loan in the interest of her daughter. The accused have told him to further arrange Rs. 30,000/- within a week otherwise the relationship would be strained. On 22.1.2009 one person of village Abdullapur had made a call to the informant that his daughter has been done to death by her in-laws. The informant when reached along with some persons in village Abdullapur then he found that the dead body of his daughter was lying on a cot. Thereafter, he reached the concerned police station and requested that his F.I.R. be registered and action be taken against the accused for killing his daughter for want of dowry. In pursuance of the written report submitted at the concerned police station by the informant Waheedu, an F.I.R. was registered against the appellants along with two other co-accused persons, namely, Furkan and Mobeen under sections 304-B, 498-A I.P.C. and 3/4 D.P. Act at police station Bhawanpur, District Meerut. The investigation of the case was carried out by the investigating officer and charge-sheet was submitted against the appellants Ahsan, Smt. Seeda and accused Furkan, who died during the pendency of trial. The charges were framed against two appellants by the trial court under sections 498-A, 304-B I.P.C. and 3/4 D.P. Act and alternative charge was separately framed against two appellants under section 302 I.P.C. The accused denied the charges and claimed trial.

4. The accused Mobeen, who was the uncle of appellant no. 1 and Chachiya Sasur of the deceased was not charge-sheeted and he was summoned under section 319 Cr.P.C. by the trial court, faced trial along with two appellants but he was acquitted by the trial court by the impugned judgment.

5. The prosecution in support of its case has examined P.W. 1 Waheedu, the informant-father of the deceased, P.W. 2 Azizan-mother of the deceased, P.W. 3 Ranjeet Singh, P.W. 4 Dr. Mukesh Kumar Vatsa, P.W. 5 Constable Satyapal Singh, P.W. 6 Sri Prakash Dwivedi-the then C.O./investigating officer, P.W. 7 Digamber Kushwaha-the then C.O./second investigating officer, P.W. 8 Constable Satyaveer Singh Rathore.

6. The prosecution in support of its case relied upon the documentary evidence which is Ex. Ka. 1 to Ex. Ka. 14. The statement of accused-appellants was recorded under section 313 Cr.P.C. and the accused-appellants admitted the factum of marriage of the deceased with appellant no. 1. The accused-appellants denied the allegations made in the F.I.R. and the statements of P.W. 1 and 2 and stated that wrong charge-sheet was submitted against them. In addition, they have stated that the deceased used to remain ill before marriage and after marriage also. The family members of the deceased as well as the appellants got her medically treated but she could not recover and died on account of her illness. The report submitted by the Forensic Science Laboratory is a wrong report and the same has been prepared by the prosecution in collusion with the informant. In defence, D.W. Abdul Aziz was produced.

7. P.W. 1 Waheedu, who is the informant has reiterated the prosecution case as has been mentioned in the F.I.R. and further submitted that when he reached the house of the in-laws of the deceased, who is his daughter, he found that his daughter was lying on a cot and there was abrasion on her neck and it appears that she was tried to be strangulated. The informant had got a written report typed on a shop in village Abdullapur and put his thumb impression on it. The typist had typed the matter which was dictated by him. He has proved the written report as Ex. Ka.1. He deposed before the trial court that accused Ahsan, Furkan, Smt. Seeda and Mobeen killed his daughter for want of dowry and his daughter was also carrying pregnancy of five months.

8. Similarly, P.W. 2 , who is the mother of the deceased has also deposed before trial court as has been stated by P.W. 1-her husband.

9. P.W. 3, Ranjeet Singh, who was posted as Ist Naib Tehsildar on 22.1.2009 in Tehsil Meerut has deposed that on the instruction of the S.D.M. he had gone to village Abdullapur along with police personnel and conducted the inquest of the deceased and has proved the same as Ex. Ka. 2.

10. P.W. 4, Dr. Mukesh Kumar Vatsa, who has conducted the post mortem of the deceased at 4:30 p.m. in the evening on 23.1.2009 and has proved the same as Ex.Ka. 7. He has stated that there was one anti mortem injury on the person of the deceased is as follows:-

"Single abrasion of 2 x 0.5 c.m. on the right side of the neck."

11. He has stated before the trial court that the injury sustained by the deceased could be caused due to strangulation.

P.W.5, Satyapal Singh, who was posted a Circle Officer and the first investigating officer has conducted the investigation and submitted charge-sheet against accused Ahsan, Smt. Seeda and Furkan and made an effort to arrest accused appellant no. 2 Smt. Seeda, who was absconding. He proved the same as Ex. Ka. 8 and 9.

12. P.W. 6, Sri Prakash Dwivedi, who was also posted as Circle Officer and the earlier investigating officer of the case, had recorded the statement of the witnesses and handed over the investigation of the case after his transfer on 1.3.2009 to P.W. 5 Satyapal Singh.

13. P.W. 7, Digamber Kushwaha, who was also C.O. at Mawana and the Investigating Officer of the case and has proved the site plan of the place of occurrence has proved the same as Ex. Ka. 10.

14. The trial court after examining the prosecution witnesses and considering the evidence has convicted the two appellants Ahsan and Smt. Seeda for the aforesaid offence, hence the present appeal.

15. The accused Mobeen, who was the uncle of appellant no. 1 was acquitted by the trial court for the aforesaid offences.

16. Learned counsel for the appellants argued that so far as appellant no. 2 is concerned, she is mother-in-law of the deceased. As per the prosecution case set out against her and other accused persons, there appears to be only general allegations levelled against her that she along with the husband of the deceased and uncle of appellant no. 1, Mobeen and real brother of appellant no. 1 Furkan, who was the Jeth of the deceased, has done to death the deceased for want of dowry as she was being harassed and tortured by them. He argued that there is no dying declaration of the deceased nor any eye witness account which may show that appellant no. 2 participated actively in the incident and was responsible for the death of the deceased. As per the post mortem report, the cause of death was not known and Viscera was preserved. As per the viscera report organo cloro insecticide was found in the viscera of the deceased. He submitted that appellant no. 2 is an old woman aged about 70 years as on date and the entire evidence led by the prosecution does not show any specific allegation against her or her participation and on the similar evidence the uncle of appellant no. 2, namely, Mobeen has been acquitted by the trial court. She has been implicated in the present case only on account of the fact that she happens to be the mother-in-law of the deceased. He submitted that even if the prosecution case is taken to be true on its face value, the appellant no. 1, who is the husband of the deceased can be held responsible to explain the death of his wife, who died an unnatural death in her matrimonial home, hence the conviction of appellant no. 2 by the trial court is against the evidence on record, hence her conviction and sentence be set aside.

17. So far as appellant no. 1, who is the husband of the deceased is concerned, learned counsel for the appellants submitted that the trial court has convicted the appellant no. 1 on the basis of presumption under section 113-B of the Evidence Act as he failed to explain the death of his wife, who was also carrying pregnancy of about five months and died an unnatural death in her matrimonial home within 7 years of marriage. He submitted that the statement of P.W. 1 and 2 regarding the harassment made by appellant no. 1 along with his family members for want of dowry, does not inspire confidence as cause of death was not known. Viscera was preserved and as per the viscera report organo cloro insecticide was found in the viscera of the deceased. It appears that the deceased consumed poisonous substance because of her ailment by which she was suffering before marriage and after marriage for which treatment was going on but as the appellant no. 1 could not produce any medical report, it was presumed that appellant no. 1 done to death his wife for want of dowry. He pointed out that the single injury suffered by the deceased on her neck appears to be superficial injury and in ordinary course of nature was not sufficient to cause death and appears to be have been caused in some other manner and the trial court on account of the said injury wrongly came to the conclusion that she was tried to be strangulated and convicted the appellant under section 304-B I.P.C. He submitted that P.W. 1 though has tried to support the prosecution against all the appellants but subsequently during investigation, he denied the death of dowry for want of dowry by the accused persons. He submitted that the appellant no. 1 is languishing in jail for the last about 10 years, i.e., since 27.1.2009 and the reason given for awarding the maximum sentence of life imprisonment under section 304-B I.P.C. that the deceased was carrying a pregnancy of about five months when she was done to death does not sound to reason as the minimum sentence provided under section 304-B I.P.C. is seven years. He submitted that the appellant no. 1 has also been tried with alternative charge under section 302 I.P.C. by the trial court but he has been acquitted by the trial court for the offence under section 302 I.P.C., hence as the appellant no. 1 has already undergone about 10 years his sentence be reduced to the same from life imprisonment. In support of his argument, he has placed reliance on the judgment of the Apex Court in the case of Hariom vs. State of Harayana reported in 2014 (10) SCC 577 and has drawn the attention of the Court towards paras-15-23 of the said judgment. He has also drawn the attention of the Court towards that appellant no. 1 is also ailing with some kidney problem for which he has already undergone a surgery. The said fact has also been argued when the matter was heard by the trial court on the question of sentence. He further submitted that as his elder brother Furkan has already died, there is no one to take care of ailing mother, hence he may be awarded minimum sentence.

18. Learned A.G.A. on the other hand has vehemently argued and submitted that the trial court has rightly convicted the appellants for the offence in question and sentenced them also for the same offence and the appellant no. 1 has stated in his statement under section 313 Cr.P.C. that the deceased died on account of ailment but as per the viscera report of the deceased, it is apparent that the cause of death was consuming poisonous substance but he could not dispute the fact that so as appellant no. 2 is concerned there appears to be general allegation against her and she is aged about 70 years and on similar evidence the uncle of appellant no. 1, namely, Mobeen has already been acquitted by the trial court. Moreover, she was convicted on account of the fact that she happens to be the mother-in-law of the deceased.

19. Considered the submissions advanced by learned counsel for the parties and perused the record.

20. It is an admitted fact that appellant no. 1 was married to the deceased, who died an unnatural death in her matrimonial home within 7 years of marriage. Further there appears to be a demand of dowry by appellant no. 1 of Rs. 50,000/- from the parents of the deceased and for the non fulfilment of the same it appears that the deceased died in her matrimonial home. The evidence of P.W. 1, who is father of the deceased though has supported the prosecution case at initial stage before the trial court but subsequently he denied the allegation against co-accused Mobeen, who was the uncle of appellant no. 1 and Chachiya Sasur of the deceased. It further appears from his evidence that he also denied charges against the appellants for committing the murder of the deceased for want of dowry. P.W. 2, who is the mother of the deceased also similarly deposed before the trial court. There appears to be no dying declaration of the deceased nor any eye witness account of the incident and only general allegations have been levelled against appellant no. 2, who is the mother-in-law of the deceased and there appears to be no evidence on record to show that she actively participated in the crime in question along with appellant no. 1. She is aged about 70 years and only on account of said relationship with appellant no. 1 and with the deceased, she was also named in the F.I.R. along with appellant no. 1, jeth of the deceased Furkan, who died during trial and uncle of appellant no. 1 Mobeen. So far as appellant no. 2 is concerned, the trial court has convicted him under section 304-B I.P.C. on the basis of presumption under section 113-B of the Evidence Act as he failed to explain the death of his wife, who died an unnatural death in her matrimonial home within seven years of marriage and also carrying a pregnancy of five months. As per the viscera report it appears that the deceased died on account of organo cloro insecticide which was found in her body. There appears to be no evidence to show that whether the appellant no. 1 administered the said poisonous substance to her or she consumed the same herself. Moreover, the dead body of the deceased was found in her matrimonial home where she was living with appellant no. 1 and appellant no. 1 could not explain the unnatural death of his wife within one year of marriage, hence the trial court rightly convicted the appellant no. 1 under section 304-B I.P.C. The presumption under section 113-B of the Evidence Act is against appellant no. 1 for the death of the deceased for want of dowry for which he is held guilty, hence the conviction of appellant no. 1 under section 304-B I.P.C. and other offences is hereby upheld but so far as question of sentence for the offence under section 304-B I.P.C. against appellant no. 1 is concerned and the reason given by the trial court for the same that the deceased was carrying a pregnancy of five months does not bring the case in the category of rarest of rare case where the appellant could have been awarded the maximum sentence under section 304-B I.P.C. The case law, i.e., Hariom vs. State of Harayana (Supra) which has been relied upon by learned counsel for the appellants on the said issue wherein the Apex Court has held that extreme sentence of life term should be awarded in rare cases but not in every case. Paras-17, 18, 19 and 20 of the said judgment is reproduced hereinbelow:-

"17. This issue has been the subject matter of debate before this Court in several cases, which arose out of Section 304-B read with Section 498-B and wherein this Court while interpreting the expression "may" occurring in Section 304-B IPC held that it is not mandatory for the Court in every case to award life imprisonment to the accused once he is found guilty of offence under Section 304-B. It was held that the Court could award sentence in exercise of its discretion between seven years to life imprisonment depending upon the facts of each case. It was held that in no case it could be less than seven years and that extreme punishment of life term should be awarded in "rare cases" but not in every case.

18. In Hem Chand Vs. State of Haryana, (1994) 6 SCC 727, the courts below had awarded life term to the accused under Section 304-B read with Section 498-A but this Court reduced it to 10 years. This was also a case where the accused was a police officer who had suffered life imprisonment. This Court held as under:

"7........ the accused-appellant was a police employee and instead of checking the crime, he himself indulged therein and precipitated in it and that bride-killing cases are on the increase and therefore a serious view has to be taken. As mentioned above, Section 304-B IPC only raises presumption and lays down that minimum sentence should be seven years but it may extend to imprisonment for life. Therefore awarding extreme punishment of imprisonment for life should be in rare cases and not in every case.

8. Hence, we are of the view that a sentence of 10 years' RI would meet the ends of justice. We, accordingly while confirming the conviction of the appellant under Section 304-B IPC, reduce the sentence of imprisonment for life to 10 years' RI. ...."

19. Similarly this Court in State of Karnataka Vs. M.V. Manjunathegowda and Anr., (2003) 2 SCC 188, while convicting the accused under Section 304-B awarded 10 years imprisonment in somewhat similar facts.

20. Recently in G.V. Siddaramesh Vs. State of Karnataka, (2010) 3 SCC 152, this Court while allowing the appeal filed by the accused only on the question of sentence altered the sentence from life term to 10 years on more or less similar facts. Hon'ble H. L. Dattu, J. (as His Lordship then was) speaking for the Bench held as under:

"31. In conclusion, we are satisfied that in the facts and circumstances of the case, the appellant was rightly convicted under Section 304-B IPC. However, his sentence of life imprisonment imposed by the courts below appears to us to be excessive. The appellant is a young man and has already undergone 6 years of imprisonment after being convicted by the Additional Sessions Judge and the High Court. We are of the view, in the facts and circumstances of the case, that a sentence of 10 years' rigorous imprisonment would meet the ends of justice. We, accordingly while confirming the conviction of the appellant under Section 304-B IPC, reduce the sentence of imprisonment for life to 10 years' rigorous imprisonment. The other conviction and sentence passed against the appellant are confirmed."

21. Keeping into mind, the aforesaid proposition of law laid down by the Apex Court in the aforementioned case and having regard to the totality of facts and circumstances of this case, we are of the considered opinion that justice would be served, if we reduce the sentence of life imprisonment awarded to the appellant no. 1 to ten years as in our opinion, the case does not fall within the category of rarest of rare case and the reason given by the trial court for awarding the maximum sentence to him does not sound good, hence the conviction of the appellant is hereby upheld but the sentence of life imprisonment awarded to him by the trial court under section 304-B I.P.C. is hereby reduced to 10 years rigorous imprisonment. The impugned judgment and order of the trial court is modified to that extent only with respect to appellant no. 1-Ahsan, who is in jail as on date. He shall be released after completing the sentence ten years of rigorous imprisonment, if not wanted in any other case.

22. So far as appellant no. 2, Smt. Seeda is concerned, having considered the submissions advanced by learned counsel for the parties and the facts and circumstances of the case, we allow the appeal on her behalf. Her conviction and sentence is hereby set aside. She is said to be on bail. She need not to surrender. Her bail bonds and sureties are hereby discharged.

23. It is further directed that the accused-appellants shall furnish bail bonds with sureties to the satisfaction of the court concerned in terms of the provision of Section 437-A Cr.P.C.

24. The appeal stands partly allowed.

(Dinesh Kumar Singh-I, J.)(Ramesh Sinha, J.)

Order Date :- 1.11.2018

Shiraz

Hon'ble Ramesh Sinha, J.

Hon'ble Dinesh Kumar Singh-I, J.

Order on crl. misc. IInd bail application no. 11 of 2018.

Heard learned counsel for the parties.

As the appeal has been heard and finally disposed of, the second bail application preferred on behalf of appellant no. 2 has become infructuous and is accordingly, dismissed as infructuous.

(Dinesh Kumar Singh-I, J.)(Ramesh Sinha, J.)

Order Date :- 1.11.2018

Shiraz