Shoib Ahmad vs State Of U.P. And Another
2022 Latest Caselaw 21919 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 19.11.2022
 
Delivered on 20.12.2022
 
Court No. - 82
 

 
Case :- CRIMINAL REVISION No. - 3848 of 2022
 

 
Revisionist :- Shoib Ahmad
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Ram Bahadur, Manoj Kumar Srivastava, Sr. Advocate
 
Counsel for Opposite Party :- G.A.,Akhilesh Kumar Dwivedi,Amrendra Kumar Mishra
 

 
Hon'ble Mayank Kumar Jain,J.

1. Heard Shri Anil Srivastava, Senior Advocate assisted by Shri Prem Narayan Singh, learned counsel for the revisionist, Shri Amrendra Kumar Mishra, learned counsel for the informant and Shri Om Prakash Mishra, learned Additional Government Advocate for the State and perused the record.

2. The instant criminal revision has been filed against the order dated 23.08.2022 passed by the learned Additional Sessions Judge/Fast Track Court-I, Bhadohi on the application under section 319 Cr.P.C. moved by the informant in Sessions Trial No. 281 of 2021 arising out of Case Crime No. 135 of 2021, under sections 498-A, 304-B IPC and section ¾ of Dowry Prohibition Act, police station Bhadohi, district Bhadohi, whereby the learned trial court has summoned the revisionist under Section 319 Cr.P.C. to face the trial with other accused.

3. Brief facts of the case as narrated in the first information report are that the informant Akhlaq Ahmad lodged a report at the police station concerned with the averment that he performed the marriage of his daughter Dilkusha Bano with Ashfaq Ahmad on 25th March 2021 according to Muslim rituals. After one week of the marriage, the in-laws started harassing her for dowry. His daughter telephonically informed him about the same based on which the informant went to his daughter's house and requested her in-laws a lot, but they did not agree. The informant also asked her daughter to tolerate it for a few days presuming that things would be fine. On 15.06.2021 at around 6.00 p.m. the accused Mushtaq Ahmad called on the mobile phone of Toni Mansoori, the son of the informant and asked him to come right away to his home. The informant along with his family members reached the house of his daughter's in-law. He saw that her dead body was lying on the bed and marks of injury were present on her body. He suspected that the accused persons have committed her murder for dowry.

4. After the investigation, a charge sheet came to be filed against the accused persons namely Ashfaq Ahmad, Salma, Mustaq Ahmad, Ismat Firdaus and Washeem except for the present revisionist Shoaib Ahmad, who happens to be the brother-in-law (dewar) of the deceased Dilkusha Bano.

5. The Investigating Office during the investigation based on some affidavits received of some persons and after recording the statements under Section 161 Cr.P.C. concluded that the present revisionist received his education with his maternal uncle Mukhtar Ahmad and at the time of occurrence he was working in the business with his maternal uncle. He was not residing with his family members including the deceased, therefore, no involvement of the revisionist was found in the commission of the crime.

6. Learned counsel for the revisionist argued that the revisionist never made any demand of dowry from the deceased since he had nothing to do with the matrimonial dispute if any. The first information report has wrongly been lodged against the revisionist. The facts mentioned in the FIR are fictitious, untrue and not substantiated with any material evidence. The financial position of the revisionist is very sound, therefore there was no occasion to make any demand for dowry from the deceased by him. The marriage of the deceased was solemnized without dowry. General allegations have been leveled against all the accused persons. During the investigation, no credible evidence was collected by the Investigating Officer against the revisionist and no charge sheet was submitted against him.

7. It is further submitted that the trial court while passing the impugned order has not applied its judicial mind. The application under section 319 Cr.P.C. was moved against the revisionist in order to further blackmail and harass the family members of the revisionist. The impugned order is contrary to the law. The revision is liable to be allowed and the impugned order may be set aside.

8. Learned counsel for the revisionist referred to the evidence recorded by the trial Court during the course of the trial. He referred to the statement of P.W.-1 Akhlaq Ahmad, the informant and the father of the deceased, and PW-2 Fakhre Alam, the brother of the deceased, and submitted that these two witnesses have repeated their version before the trial court, similar to their version as recorded by the I.O. under Section 161 Cr.P.C. PW-1 Akhlaq Ahmad had admitted in his evidence that at the time of marriage of his daughter Dilkusha Bano, the revisionist was living with his maternal uncle (Mama) Mukhtar Ahmad and he continued to remain there till the death of the deceased Dilkusha Bano. He further submitted that the trial Court failed to appreciate the evidence available on record and merely on the basis of the examination in chief of the witnesses it passed the impugned order which is bad in law. The trial Court ignored the evidence collected by the Investigating Officer relating to the revisionist based on which the involvement of the revisionist was not found and a charge sheet was not filed against him.

9. In support of his contentions, learned counsel for the revisionist has relied upon the judgment in the case of Hardeep Singh vs State of Punjab and others reported in (2014) 3 SCC 92 and in the case of Sagar vs State of U.P. and another reported in 2022 Live Law (SC) 265.

10. Per contra, Shri Amrendra Kumar Mishra, learned counsel for the informant and Shri Om Prakash Mishra, learned Additional Government Advocate submitted that marriage of deceased Dilkusha Bano was solemnized on 20.03.2021 while she died on 15.06.2021 within a short span of time in her matrimonial home. Some articles were given by the informant after the marriage despite that the accused persons continued to make demands and harass her daughter. PW-1-Akhlakh Ahmad, the complainant and PW-2-Fakre Alam, brother of the deceased, have deposed before the Court and stated about the harassment made by all the accused named in the first information report including present revisionist Shoib Ahmad and also about making a demand of a gold chain and a four-wheeler. The deceased Dilkusha Bano was subjected to harassment and cruelty by all the accused including the revisionist. The revisionist was present at his house when the complainant reached the in-law's house of her daughter where he found his daughter dead. There was sufficient evidence on record to summon the accused to face the trial with other accused. The learned trial Court rightly considered the evidence available on record and has passed the impugned order. The revision is liable to be dismissed.

11.Section 319 Cr.P.C. reads as under :-

"319. Power to proceed against other persons appearing to be guilty of offence.-

(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under sub - section (1), then-

(a) the proceedings in respect of such person shall be commenced a fresh, and the witnesses re- heard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced."

12. Informant Akhlaq Ahmad was examined as PW-1. He stated in his examination-in-chief that he performed the marriage of his daughter Dilkusha Bano with the accused Ashfaq Ahmad on 25.03.2021. He brought his daughter from her in-laws' house on 27.03.2021 and on 03.04.2021 he sent her back after performing her "Vida" ceremony. From that very day, all the accused including Shoib Ahmad (present revisionist) started to harass his daughter and make demands for a gold chain and a four-wheeler. For this demand, he went to his daughter's in-laws' house and requested them but they did not agree. He asked his daughter to tolerate it for some days till things get settled down. On 14.06.2021 he received a call from his daughter that all these persons are harassing her and they will kill her. On the same day, he received a call from Toni Mansoori and reached the house of his daughter and he found her dead. Injury marks were present on her body. At that time all the accused were present including Shoib Ahmad. He called the police and all the accused were arrested except for Shoaib Ahmed who managed to escape from there. PW-1 Akhlaq Ahmad has proved his written report as Ex. Ka. 1.

13. PW-2 Fakre Alam, who is the son of the informant stated in his evidence that on 03.04.2021 Ashfaq Ahmad, Salma, Mustaq Ahmad, Ishmat Firdaus, Washeem Ahmad and Shoib Ahmad took his sister after "vida" ceremony. From that day, all these people started to make a demand for a gold chain and a four-wheeler. They were taunting and harassing his sister that they had given a four-wheeler in the marriage of their daughter and hence they expected the same from his deceased sister. His sister communicated these things telephonically to him. His father went to her house and had spoken with them. He also provided some gifts. His sister made a call from her husband's mobile phone saying that all these people would kill her for dowry. When he reached the house of her sister he found that her dead body was lying and there were marks of injuries on her body. He specifically alleged that her in-laws including Shoib Ahmad have committed dowry death.

14. The Investigating Officer collected the following evidence during the investigation:-

(i) The affidavit of Iftekhar Ahmad (the cousin of the revisionist)

(ii) Affidavit of Mukhtar Ahmad (the maternal uncle of the revisionist)

(iii) Affidavit of Abhay Kumar Yadav

(iv) Statement under Section 161 Cr.P.C. of Mukhtar Ahmad

(v) statement under section 161 Cr.P.C. of Abhay Kumar Yadav

(vi) statement under Section 161 Cr.P.C. of Santosh Kumar Singh

(vii) Statement under Section 161 Cr.P.C. of Bhushan Kumar Bij

15. Iftekhar Ahmad, son of Mukhtar Ahmad who is the cousin of revisionist Shoib Ahmad has mentioned in his affidavit that revisionist Shoib Ahmad received his education while residing in their house and on the date of occurrence he was with them. In his statement under Section 161 Cr.P.C., witness Mukhtar Ahmad supported the version stated in his affidavit and stated that for the last ten years revisionist was living with his son Iftekhar Ahmad and on the date of occurrence as well he was living with them. Witness Abhay Kumar Yadav supported his affidavit and stated in his statement under section 161 Cr.P.C. that he was working as an Assistant in M/s Art Palace Dining Division at Rampur District Jaunpur since last four years and the revisionist was working with him as in-charge in that firm. On the date of occurrence, Shoib Ahmad was present in the aforementioned workplace. Santosh Kumar Singh in his statement under section 161 Cr.P.C. narrated to the Investigating Officer that when the incident occurred on 15.06.2021 in his colony, Shoib Ahmad was not involved since he used to live with his maternal uncle in District Bhadohi. On the date of the occurrence, he did not come to his house. A similar statement was given to the Investigating Officer by Bhushan Kumar Bij.

16. PW-1 Ikhlakh Ahmad admitted during his cross-examination that at the time of the marriage of the son Ashfaq, his brother Shoib Ahmad (the revisionist) was working with his maternal uncle Mukhtar Ahmad. Therefore, the aforesaid evidence corroborates the evidence collected by the Investigating Officer during the investigation.

17. The Supreme Court in Hardeep Singh vs State of Punjab and others reported in (2014) 3 SCC 92 has observed as under:

"98. Power under Section 319 Cr.P.C. is a discretionary and an extra- ordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.

99. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of Cross-Examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if ''it appears from the evidence that any person not being the accused has committed any offence' is clear from the words "for which such person could be tried together with the accused." The words used are not ''for which such person could be convicted'. There is, therefore, no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused.

18. In Brijendra Singh & Ors. Vs. State of Rajasthan, (2017) 7 SCC 706, the Hon'ble Supreme Court has considered the observation made in Hardeep Singh Vs. State of Punjab & Ors., (2014) 3 SCC 92 in the matter of the power of the Court to summon a non-chargesheeted accused and has observed that a parallel was drawn with the deposition of the prosecution witnesses before the Court and their statements recorded under Section 161 Cr.P.C. by the Investigating Officer during the investigation to find out whether something more than prima facie has come out in their deposition or not and something more than mere complicit prospective accused is established in the crime. The Hon'ble Apex Court observed that:

"13. In order to answer the question, some of the principles enunciated in Hardeep Singh's case may be recapitulated: power under Section 319 Cr.P.C. can be exercised by the trial court at any stage during the trial, i.e., before the conclusion of trial, to summon any person as an accused and face the trial in the ongoing case, once the trial court finds that there is some 'evidence' against such a person on the basis of which evidence it can be gathered that he appears to be guilty of offence. The 'evidence' herein means the material that is brought before the Court during trial. Insofar as the material/evidence collected by the I.O. at the stage of inquiry is concerned, it can be utilised for corroboration and to support the evidence recorded by the Court to invoke the power under Section 319 Cr.P.C. No doubt, such evidence that has surfaced in examination-in-chief, without cross- examination of witnesses, can also be taken into consideration. However, since it is a discretionary power given to the Court under Section 319 Cr.P.C. and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrants. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom chargesheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity.

14. When we translate the aforesaid principles with their application to the facts of this case, we gather an impression that the trial court acted in a casual and cavalier manner in passing the summoning order against the appellants. The appellants were named in the FIR. Investigation was carried out by the police. On the basis of material collected during investigation, which has been referred to by us above, the IO found that these appellants were in Jaipur city when the incident took place in Kanaur, at a distance of 175 kms. The complainant and others who supported the version in the FIR regarding alleged presence of the appellants at the place of incident had also made statements under Section 161 Cr.P.C. to the same effect. Notwithstanding the same, the police investigation revealed that the statements of these persons regarding the presence of the appellants at the place of occurrence was doubtful and did not inspire confidence, in view of the documentary and other evidence collected during the investigation, which depicted another story and clinchingly showed that appellants plea of alibi was correct.

15. This record was before the trial court. Notwithstanding the same, the trial court went by the deposition of complainant and some other persons in their examination-in-chief, with no other material to support their so- called verbal/ocular version. Thus, the 'evidence' recorded during trial was nothing more than the statements which was already there under Section 161 Cr.P.C. recorded at the time of investigation of the case. No doubt, the trial court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in-chief. However, in a case like the present where plethora of evidence was collected by the IO during investigation which suggested otherwise, the trial court was at least duty bound to look into the same while forming prima facie opinion and to see as to whether 'much stronger evidence than mere possibility of their (i.e. appellants) complicity has come on record. There is no satisfaction of this nature. Even if we presume that the trial court was not apprised of the same at the time when it passed the order (as the appellants were not on the scene at that time), what is more troubling is that even when this material on record was specifically brought to the notice of the High Court in the Revision Petition filed by the appellants, the High Court too blissfully ignored the said material. Except reproducing the discussion contained in the order of the trial court and expressing agreement therewith, nothing more has been done. Such orders cannot stand judicial scrutiny."

19. In the given case also the learned trial Court while passing the order for summoning the revisionist to face the trial under Section 319 Cr.P.C. has considered only the evidence produced before it by the prosecution witnesses PW-1 and PW-2. Moreover, the learned trial court completely ignored the evidence in the cross-examination of PW-1 Ekhlakh Ahmad in which he admitted that revisionist Shoib Ahmad was working with his maternal uncle Mukhtar Ahmad at the time of the marriage of the deceased. The learned trial Court also ignored the evidence collected by the Investigating Officer during the course of the investigation based on which the revisionist was not charge sheeted.

20. In view of the above, it is clear that the learned trial court while passing the impugned order only considered the evidence of PW-1 and PW-2 recorded during the trial about the involvement of the revisionist and summoned him invoking the power for summoning revisionist under Section 319 Cr.P.C. to face the trial. The trial court has completely ignored the evidence which was available on record more than prima facie as referred earlier. In view of the observation made by the Hon'ble Apex Court in Brijendra Singh Vs. State of Rajasthan (supra) in the present case also the evidence recorded during the trial was nothing more than the statements of informant Ikhlakh Ahmad and his son Fakre Alam, recorded by Investigating Officer under Section 161 Cr.P.C. Sufficient evidence was collected by the Investigating Officer which does not suggest the involvement of the revisionist in the crime. The evidence of PW1 Ekhlaq Ahmad, which came up during his cross-examination with regard to the revisionist was not considered by the trial court while passing the impugned order.

21. Therefore, in view of the above, the impugned order passed by the learned trial Court is not sustainable and liable to be set aside. Resultantly, the revision is liable to be allowed.

Order

22. The Criminal Revision is hereby allowed.

23. The impugned order dated 23.08.2022 passed in Sessions Trial No. 281 of 2021 (State Vs. Ashfaq Ahmad and Ors) relating to Case Crime No. 135 of 2021, under Sections 498-A, 304-B IPC and section ¾ of Dowry Prohibition Act, Police Station Bhadohi, District Bhadohi, is hereby set aside.

24. Let the copy of this order be sent to the court concerned for information and necessary compliance.

Order Date :-20.12.2022

Mohit