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Tahsin Ahmad v. State Of U.P. - CRIMINAL APPEAL No. 98 of 2005 [2006] RD-AH 4641 (27 February 2006)


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Court No. 44

Criminal Appeal No. 98 of 2005

Tahsin Ahmad Vs. State of U.P.

Hon'ble R. C. Deepak, J.

Hon'ble M. K. Mittal, J.

This is the second bail application filed on behalf of the accused applicant Tahsin Ahmad son of Maqbool Ahmad for release on bail in Case Crime No. 486 of 1995 under Sections 498-A, 304-B IPC, and Section 3/4 Dowry  Prohibition Act, P.S. Tiwaripur, District Gorakhpur.

Accused has been convicted and sentenced by the learned Addl. Sessions Judge, F.T.C., Court No. 1 Gorakhpur and has been directed to undergo life imprisonment by judgement and order dated 6.1.2005.

We have heard Sri R. P. Tripathi, learned counsel for the accused appellant Sri Alok Dwivedi for the complainant and learned A.G.A. and perused the record.

Brief facts of the case are that Smt. Yasmin Faridi sister of the informant Mohd. Ali was married with accused appellant about six years prior to the incident according to Muslim rites and she had two daughters aged about 3 and 1-1/2 years. Rs. 50,000/- cash was demanded in dowry and when it could not be given she was ill-treated and harassed and was burnt by the accused in her matrimonial home on 4.11.1995. The complainant was informed by a resident of Uchwa and he came there and saw that his sister was lying in burnt condition on the first floor of the house. He  had come there along with his friend Ajay Tripathi. At that time his Bahnoi that is the accused appellant and other members of his family were absconding. The complainant took his sister to the Govt. Hospital and got her admitted. Her dying declaration was recorded by the Magistrate at 12.15 a.m. on 5.11.1995. The complainant lodged the F.I.R. on 5.11.1995 at 2.55 a.m at P.S. Tiwaripur, District Gorakhpur. Sister of the complainant died in early morning of 5.11.1995 in the hospital.

Post mortem report shows that deceased had received 95% burn injuries.

The contention of the learned counsel for the accused appellant is that while considering the first bail application certain points were not considered and therefore the second bail application is maintainable. He has contended that the F.I.R. in this case is anti timed and that no allegation about the demand of dowry has been made by the deceased in her dying declaration and that the dying declaration itself is not reliable as the deceased was having 95 % burn injuries. He has further contended that the witnesses P.W.-1, P.W.-2 and P.W.-3 are also not reliable and that no cruelty or harassment was meted out to the deceased and that the other co accused have been acquitted and the accused appellant who is the husband of the deceased is also entitled to bail.

Learned A.G.A. and learned counsel for the complainant have contended that Smt. Yasmin Faridi died in her matrimonial home as she was burnt by the accused. They have also contended that there was no reason for Smt. Yasmin Faridi to have committed suicide as she was having two young daughters and she could not leave them behind her at the mercy of the appellant. They have further contended that the F.I.R. has not been anti timed and that the demand for dowry was made by the accused as has been specifically stated in the F.I.R. and if such allegation has not come in the dying declaration, same is not material. They have also contended that Smt. Yasmin Faridi, although had received 95% burn injuries, was in a position to make statement as has been stated by the Magistrate P.W.-9 who recorded her dying declaration and by Dr. B.B. Tripathi, P.W.-10, who has certified that she was mentally fit to give the statement. On the basis of the statement of these two witnesses, learned A.G.A. has contended that there is no reason to discard the dying declaration of the deceased wherein she has specifically stated about the act of this accused only. They have further contended that if the two other co accused have been acquitted it does not entitle the accused who is the husband of the deceased to be released on bail.

We have considered the arguments as advanced on both the side and are of opinion that the accused is not entitled for bail. The incident took place in the house of the accused and he did not inform the Police. He also did not take Smt. Yasmin Faridi to hospital. According to the complainant, when he received the information that his sister was burnt, he reached her matrimonial house and found that the accused and his family members were absconding. This circumstance is material. He first took his sister to hospital where her dying declaration was recorded. He lodged the report at 2.55 a.m. In the circumstances of the case, it cannot be said that the F.I.R. has been anti timed; rather considering the conduct of the accused, it does not lie in his mouth to say that the report is anti timed.

The next contention of the learned counsel for the accused appellant is that in the dying declaration, allegations about demand of dowry have not been made and therefore the case is not covered under Section 304 B IPC. But it is not tenable. The allegation regarding the demand of dowry has been made in the F.I.R. and the dying declaration is not supposed to be a detailed statement covering all the aspect. In the circumstances if the allegation regarding demand of dowry has not come in the dying declaration, it is not material. Although the deceased was having 95% burn but as per statement of two witnesses that is the Magistrate and the medical expert, she was mentally fit and was in a position to give her statement. The accused has not given any plausible explanation as to how she received the burn injuries in his house. She had two young daughters and there was no occasion for having committed suicide. The plea as taken by the accused that she wanted the accused to dispose of his property and to live in his sasural after six years of marriage is highly improbable and cannot be accepted.

Considering all the facts and circumstances of the case, we do not find that any new ground has cropped for enlarging the appellant on bail and his second bail application is liable to be rejected and is hereby rejected. However, it is made clear that any observation made in this order shall not effect the final disposal of the appeal.




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