Allahabad High Court
State Of U.P. vs Iqbal Ansari on 16 September, 2021
Bench: Ramesh Sinha, Saroj Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW BENCH, LUCKNOW
Court No. - 9 A.F.R.
Case :- U/S 378 CR.P.C. No. - 41 of 2021
Appellant :- State of Uttar Pradesh
Respondent:- Iqbal Ansari
Counsel for Appellant :- Sri Arunendra, Additional Government Advocate
Hon'ble Ramesh Sinha, J.
Hon'ble Mrs. Saroj Yadav, J.
(ORAL)
(Per : Saroj Yadav, J. for the Bench)
1. This appeal alongwith application under Section 378(3) of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') has been filed by the State/appellant with the prayer that leave to appeal may be granted against the judgment and order dated 03.12.2020 passed by Additional Sessions Judge, Room No. 4/Special Judge, E.C. Act, Lucknow in Sessions Trial No. 1363 of 2008 arising out of Case Crime No. 243 of 2007, under Sections 498-A, 304-B of the Indian Penal Code, 1860 (in short 'I.P.C.') and Section 3/4 of The Dowry Prohibition Act (in short "D.P. Act"), Police Station Thakurganj, District Lucknow, whereby the trial Court acquitted the accused respondent.
2. Heard Sri Arunendra, learned Additional Government Advocate (in short 'A.G.A.') for the State appellant, perused the impugned judgment and order and the record of the trial Court.
3. A First Information Report (in short "F.I.R.") was registered on the basis of a written report presented by Mohd. Salim (brother of the decased -Reshma) on 01.06.2007. In the report, it was stated that marriage of his sister Reshma was solemnized with Iqbal Ansari 1-1/2 years ahead. After marriage, she used to live in her matrimonial home alongwith other family members. After two-three months, Iqbal Ansari, his mother, father and sister started demanding Rs. One Lac as dowry. They all started torturing her. He (complainant) tried to placate Iqbal 2-3 times that he is not in a position to give more dowry. On 01.06.2007 at about 12 O'clock, Iqbal left Reshma outside the house of the complainant in an unconscious state. When the complainant opened the door, he found his sister lying there and she was dead.
4. After investigation, charge sheet was submitted only against Iqbal Ansari/accused-respondent under Sections 498-A and 304-B IPC and Section 3/4 D.P. Act. The concerned Magistrate took cognizance and committed the case to the Sessions Court. The charges were framed against the accused/respondent under the aforesaid sections and also Section 302 IPC in alternate. He denied the charges and claimed to be tried.
5. In order to prove the charges framed against the accused/respondent, the prosecution examined Dr Neeraj Shekhar as P.W. 1, Mohd. Salim (complainant)- P.W. 2, Smt. Suraiya Begum (mother of the deceased)- P.W. 3, Smt. Nagma Bano (sister of the deceased)-P.W. 4, Head Constable Shiv Prasad-P.W. 5, Mohd. Nasim (brother of the deceased)-P.W. 6, Mohd. Wasim (brother of the deceased)-P.W. 7, Sri Chandra Shekhar-P.W. 8, Sri Ram Nayan Singh (first Investigating Officer)-P.W. 9 and Sri Chiranjiv Nath Sinha (Second Investigating Officer)- P.W. 10. Documentary evidence Exhibit Ka-1 to Ka-11 were proved.
6. The statement of the accused/respondent was recorded under Section 313 Cr.P.C. wherein he denied the charges and stated that F.I.R. has been lodged falsely. The witnesses have deposed falsely due to enmity and he is innocent. In the defence the accused/respondent examined three witnesses-Asaf Ali Ansari-D.W-1, Furkan Ali-D.W. 2 and Mohd. Ahmad Ansari-D.W. 3. Thereafter, the Trial Court after hearing the arguments of both the sides and analyzing the evidence available on record came to the conclusion that there are major contradictions in the statements of the witnesses of facts. The prosecution could not establish the charges framed against the accused/respondent and acquitted the accused. Being aggrieved of acquittal of the accused/respondent, the State-appellant has preferred the present appeal.
7. Learned A.G.A has challenged the impugned judgment and order by arguing that learned Trial Court has wrongly acquitted the accused/respondent giving benefit of doubt. Learned Trial Court has not considered the point that deceased died in her matrimonial home within seven years of her marriage as an unnatural death. There are specific allegations in the F.I.R. as well as in the statements of the witnesses that accused/respondent demanded dowry and the deceased was tortured for non-fulfilment of dowry. Learned A.G.A. further argued that the Trial Court has not considered that as per Section 113-B of the Indian Evidence Act, presumption should be raised against the accused/respondent and the accused/respondent has not given any explanation to rebut the presumption so raised and has not explained under what circumstances ante-mortem injuries were caused on the body of the deceased. Hence, the impugned judgment and order should be set aside and the accused be acquitted.
8. Considered the submissions raised by learned A.G.A., perused the impugned judgment and order and the record of the trial Court.
9. Before moving forward, it appears appropriate to have a look at Section 304-B I.P.C. and Section 113-B of the Indian Evidence Act, 1872.
Section 304-B IPC reads as under:-
"304B. Dowry death.--(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called ''dowry death', and such husband or relative shall be deemed to have caused her death.
Explanation.--For the purpose of this sub-section, ''dowry' shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."
Section 113-B of the Evidence Act, 1872 reads as under:-
"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 has 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. Explanation.--For the purposes of this section, ''dowry death' shall have the same meaning as in Section 304B of the Indian Penal Code (45 of 1860)."
Hon'ble Apex Court in the case of Maya Devi and Another Versus State of Haryana (2015) 17 Supreme Court Cases 405 has laid down as under:-
In order to convict an accused for the offence punishable under Section 304B IPC, the following essentials must be satisfied:
(i) the death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances;
(ii) such death must have occurred within seven years of her marriage;
(iii) soon before her death, the woman must have been subjected to cruelty or harassment by her husband or any relatives of her husband;
(iv) such cruelty or harassment must be for, or in connection with, demand for dowry.
When the above ingredients are established by reliable and acceptable evidence, such death shall be called dowry death and such husband or his relatives shall be deemed to have caused her death. If the abovementioned ingredients are attracted in view of the special provision, the court shall presume and it shall record such fact as proved unless and until it is disproved by the accused. However, it is open to the accused to adduce such evidence for disproving such conclusive presumption as the burden is unmistakably on him to do so and he can discharge such burden by getting an answer through cross-examination of the prosecution witnesses or by adducing evidence on the defence side."
10. Now, we have to analyze the present case on the touch stone of above ingredients of Section 304-B IPC.
11. The first ingredient is death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances. In the present matter, in the F.I.R. it was mentioned that the accused/respondent left the deceased outside the house of the complainant in an unconscious state. When the complainant came out to see the deceased, he found her dead. In this regard, the statement of P.W. 1-Dr Neeraj Shekhar, who conducted the autopsy on the cadaver, is important. In his opinion, the death of the deceased occurred due to shock and hemorrhage as a result of ruptured fallopian tube on right side. As per norms, autopsy was conducted by a panel of two doctors. P.W.1 has also stated that another doctor was also of the opinion that death was caused due to shock and hemorrhage as a result of ruptured fallopian tube on right side. In the post-mortem report, it has also been mentioned that "Right fallopian tube ruptured, whole uterus, both ovary and both fallopian tubes preserved in formalin and sent to KGMU Pathology for Histopathological examination". P.W. 1 has stated that no mark of injury was found on the external or internal part of the body of deceased. This medical witness did not say that the death was unnatural. This witness has also stated that he did not see 'histopathological examination report' of the deceased, so he cannot say conclusively that death was natural. 'Histopathological-examination-report' of Post Graduate Department of Pathology, King George's Medical University, Lucknow is on record as Paper No. 33/2. This report is as under:-
"HISTOPATHOLOGICAL EXAMINATION REPORT
GROSS:-
An opened up uterus, cervix and bilateral adenexa measuring 6x5x3.5 cms received. Outer surface is smooth. Cut surface shows a slit like uterine cavity. Posterior wall thickness is 1.5 cm.
Right adenexa measuring 4x2.5x2 cm received. Outer surface is smooth. Cuts soft. Cut surface shows one cyst measuring 1 cm and filled with gelatinous material.
Left adenexa measuring 3x2.5x1 cms received. Outer surface is smooth. Cuts soft. Cut surface shows corpus albican and hemorrhage.
MICROSCOPIC:-
*Uterus: 3091-shows normal histology of uterus. There is no evidence of villi or haemorrhagic area.
*Cervix:3092- shows normal cervical histology.
*Right ovary :3093- Corpus luteal cyst shows normal histology of ovary.
*Left ovary: 3094-Corpus luteal cyst-Normal histology of ovary."
11. From the perusal and conjoint analysis of this report, statement of P.W. 1 and post mortem report, it comes to surface that death of deceased was not unnatural but she died due to rupture of fallopian tube. Thus, the ingredients of Section 304-B IPC is not fulfilled.
12. Now comes second ingredient, which requires, the death of the deceased must have occurred within seven years of her marriage. On this point, there is no dispute about the version of the F.I.R., wherein it has been mentioned that marriage of the deceased was solemnized with accused/respondent 1-1/2 years ahead of the incident. Hence, this ingredient is fulfilled.
13. Now comes third ingredient, which requires that soon before her death, a woman must have been subjected to cruelty and harassment by her husband and any relative of her husband and the fourth requirement is that such cruelty and harassment must be in connection with a demand of dowry. In the F.I.R., it has been mentioned that accused respondent used to demand dowry and he tortured and harassed the deceased for non fulfillment of dowry. The complainant (brother of the deceased) in his examination in chief has supported the version of F.I.R. but in cross-examination he has stated that when the marriage of the deceased was solemnized with accused/respondent, at that time, he was not in India. He also admitted that Reshma and Iqbal got married on their own sweet will and they solemnized "Nikaah" at Nadwa College and he was not present in the marriage. His sister told him about the 'Nikaah' after one month of her marriage. In his cross-examination he has also accepted that the dead body of his deceased sister was brought to his house by a vehicle from Trauma Centre. The accused respondent Iqbal came to his house and remained there for 10 minutes and all the family members were present there. The mother of the deceased has been examined as P.W. 3. In examination-in-chief, she has stated that her daughter solemnized marriage with Iqbal in Court. Thereafter, when she came to know about the marriage, they got performed their "Nikaah" and also gave dowry. She has also stated that Iqbal used to torture her daughter for Rs. One Lac and he left her daughter outside her house. His son Salim brought her daughter inside and went to call the Doctor and when Doctor came and examined the deceased, he declared her dead. This witness also in her cross examination has stated her deceased daughter used to come to her house about every day alongwith Iqbal and they were happy. They never complained anything on the date when her daughter died. She was admitted in the medical college or not, she did not know. Perusal of the statement of this witness shows that she has given a contradictory statement and in cross-examination has not supported the prosecution version about the demand of dowry and torture for non fulfillment of dowry.
12. P.W. 4- Smt. Nagma Bano, who is sister of the deceased has stated that on 01.06.2007 when her brother went to the house of her deceased sister, he found that she was seriously ill. Upon it, her brother and sister in law took her to the hospital and her sister died there in the hospital. Thereafter, dead body was brought to home by her brother and sister in law. She has also stated that when dead body was being brought to the house, Iqbal left from the way. Thereafter he never came. In the cross-examination, this witness has stated that her sister Reshma used to live happily with Iqbal in a rented house. They have no complaint about each other. This witness has also not supported the prosecution version about the demand of dowry and torture. In similar way, P.W. 6-Mohd. Nasim and P.W., 7-Mohd. Wasim (brothers of the deceased) have given contradictory statements in their cross-examinations. Further more, all the three defence-witnesses have stated that deceased and accused/respondent Iqbal used to live happily and deceased died of sudden illness. The evidence of these witnesses of facts, who are the close relatives of the deceased have not established that the deceased was tortured for demand of dowry and she was subjected to cruelty soon before her death. Hence, 3rd and 4th ingredients are also not established by the prosecution. It is a burden of the prosecution to establish all these four ingredients/requirements of Section 304-B IPC by a reliable evidence. When these ingredients are established or proved, only then the presumption of dowry death is raised against the accused.
13. In the case of Satbir Singh Versus State of Haryana (2021) 6 SCC, the Hon'ble Apex Court has laid down as under:-
"The prosecution must at first establish the existence of the necessary ingredients for constituting an offence under Section 304B, IPC. Once these ingredients are satisfied, the rebuttable presumption of causality, provided under Section 113B, Evidence Act operates against the accused."
14. The argument of learned A.G.A. that the trial Court must have raised the presumption against the accused is baseless as prosecution could not establish the ingredients of Section 304-B of IPC, which is the requirement before raising the presumption under Section 113-B of the Evidence Act, 1872.
15. Hence, in the light of the above analysis and discussion, we do not find any factual or legal error in the appreciation of evidence by the Trial Court while passing the impugned judgment and order. There are material contradiction in the statements of the witnesses of facts, who are the close relatives of the deceased. Neither of them remained stable in their cross-examinations nor they supported the prosecution version in their cross-examinations. The view taken by the trial Court is a possible view. The trial Court has given valid, cogent, convincing and satisfactory reasons while passing the impugned judgment and order.
16. We therefore, do not consider it to be a fit case for grant of leave to appeal to the appellant. The application seeking leave to appeal is, accordingly rejected and the appeal is also dismissed.
(Saroj Yadav, J.) (Ramesh Sinha, J.)
Order Date: 16.09.2021
Arun
