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STATE OF U.P. versus JAHOOR HASAN AND OTHERS

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State Of U.P. v. Jahoor Hasan And Others - GOVERNMENT APPEAL No. 2034 of 2001 [2007] RD-AH 3997 (8 March 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Delivered on 8.3.2007

Government Appeal No. 2034 of 2001

State of U.P. Appellant

Versus

Jahoor Hasan and Others Accused-respondents

Hon'ble Amar Saran, J

Hon'ble R.N. Misra, J.

(Delivered by Hon. R.N. Misra, J )

This appeal has been preferred, by the State of U.P. against the judgment and order dated 1.3.2001, passed by Sri R.D. Nimesh, the then IV Addl. Sessions Judge, Muzaffarnagar, in Sessions Trial No. 239 of 1995, by which the accused-respondents have been acquitted of the charges, under Sections 498A, 304B, 201 read with Section 34 of the Indian Penal Code.

The facts giving rise to this case are as under.

According to the prosecution case, the complainant-informant, Aziz son of Kabira , resident of  Dinkarpur, Police Station Shahpur district Muzaffarnagar had married his daughter, Smt. Islaman with the accused-respondent Samaydeen about six years back to the incident in question. The accused-respondent Jahoor Hasan is the father-in-law and Smt. Vakeela is the mother-in-law of the deceased.  The accused, Suleman and Subedeen are real brothers of Samaydeen.  The marriage was solemnized according to Muslim rites.  The complainant-informant gave sufficient articles in the marriage, but the accused-respondents were not satisfied with the dowry and they were harassing the deceased for the same.  The deceased was also being  beaten by them .They had ousted the deceased several times from their house. A Panchayat had also taken place, in which they had assured not to harass the deceased further.  A few days back to the incident in question, the deceased was ousted by the accused persons from the house.  She was living with her parents. She had repeatedly made complaints about her husband and torture by the  in-laws, due to lesser dowry. About ten days back to the incident in question, she had come to the house of her in-laws. On 26.9.1994,the accused-respondents Samaydeen and Suleman came to the house of the complainant-informant Aziz and told him that Smt. Islaman was missing from the house.  Considering their past conducts, the complainant-informant had doubted their bonafides and he detained them at his house and informed the Shahpur police,  but the Shahpur police did not take any action in the matter.  In the meantime, on 27.9.1994 one Ravindra Kumar informed the Adarsh Mandi Shamli Police through Ext. Ka-1 that the dead body of the wife of Samaydeen r/o of his village was lying in his sugarcane field.  The murder was suspected.  Ravindra Kumar had got information about the dead body from his servant Chhotu, who was irrigating the sugarcane field.  On that information, Adarsh Mandi Police registered a case at crime no. 104 of 1994, under Sections 302/201 IPC as is evident from Chik report Ext. Ka-3 and G.D. Ext. Ka-4.  When Shahpur police did not help the complainant-informant, he made a written report to  the  Superintendent of Police, Muzaffarnagar on 27.9.1994, the copy of which is Ext. Ka-2.  That report was handed over by him to Adarsh Mandi Police on 28.9.1994. The police started investigation.  The Investigating Officer recovered the dead body of the deceased and prepared inquest memo Ext.Ka-5, photo of the dead body Ext.Ka-6 and Challan Ext.Ka-9 and sealed the dead body.  The letters Ext.Ka-7, Ka-8 and Ka-10 were also prepared and the dead body was sent for post-mortem examination. The report of  post-mortem examination is Ext.Ka-15. The Investigating Officer inspected the place of occurrence and prepared site plan Ext.Ka-12. The Investigating Officer after collecting evidence came to the conclusion that the deceased was killed by the accused-respondents for demand of dowry and after interrogating the witnesses, completed the investigation and  submitted charge-sheet Ext.Ka-14 against them.

The accused-respondents have denied the allegations levelled against them and  alleged their false implications in this case. The accused-respondents Jahoor and Samaydeen have also  submitted a written statement  under Section 313 Cr.P.C, in which they have alleged that Samaydeen is a Taxi Driver and on 26.9.1994, he was out of station and on 27.9.1994, he returned back and came to know about the death of his wife.  According to them, someone had killed the deceased in the Jungle.  Regarding the Nikahnama presented by the complainant-informant in the Court, they have alleged that they are illiterate persons and had not signed the said Nikahnama. In their defence, the  accused   persons   have examined Iqram DW-1.

The accused persons were charged for the offences, punishable under Sections 498A, 304B and 201 IPC.  In support of its case, the prosecution has examined Ravindra Kumar PW-1, Chandan Singh PW-2, Smt. Rafikan PW-3, Sri Aziz PW-4, Sri Mustakim PW-5, Sri Abbas PW-6, and Sub Inspector Gita Prasad Nainwal PW-7.  Out of these witnesses, Aziz, Mustakim and Abbas have supported the prosecution case.  PW-1 Ravindra Kumar and PW-2 Chandan Singh have turned hostile.  PW-3 Rafikan is a formal witness, in whose supurdagi, the chappal of deceased  had been given by the Investigating Officer.  PW-7 Sub Inspector Gita Prasad Nainwal had investigated the case.

After considering the evidence on record and hearing the parties,  the learned Trial Court came to the conclusion that the prosecution case against the accused-respondents was not proved. He recorded their acquittal, against which this appeal.

We have heard the learned counsels for the parties and perused the evidence on record.

This is admitted fact that Smt. Islaman daughter of complainant-informant, Aziz was married with the accused-respondent Samaydeen. This is also admitted fact that Smt. Islaman died on 26.9.1994 at sometime and her dead body was recovered from an agricultural field belonging to Ravindra Kumar of the village Titauli, P.S. Adarsh Mandi Shamli, district Muzaffarnagar. According to  doctor conducting the post-mortem examination (report Ext. Ka-15), the death was caused due to asphyxia  as a result of strangulation. The only dispute is whether Smt. Islaman was married with the accused Samaydeen within seven years of her death or beyond that? Another dispute is whether death was caused by the accused-respondents for demand of dowry?

As regard period of marriage is concerned, the prosecution has adduced evidence to prove date of marriage to be 22.10.1988. A Nikahnama (paper no. 2) has been filed by the complainant-informant showing the date of marriage 22.10.1988. This document has not been exhibit marked by the learned trial court on the ground that this has not been duly proved. This observation of learned trial court is legally correct. None of the witnesses produced from the side of prosecution has proved this Nikahnama. None of the witnesses of the marriage or Kazi etc. has been produced in evidence. The accused persons have denied their alleged signatures on this Nikahnama. Therefore, we are also of the opinion that this Nikahnama cannot be read in evidence being not duly proved. But beside this Nikahnama, there is sufficient evidence on record to prove the fact that the marriage was solemnized within seven years of the death. The death was caused at any time on 26.9.1994 because the post-mortem examination of the dead body was conducted on 27.9.1994 at about 4.30 P.M. and according to doctor, the death was caused before one day. PW-4, Aziz, father of the deceased has stated on oath that the marriage of his daughter was solemnized about six years back to her death. In the application given to the police (Ext. Ka-2) also, the period of marriage was disclosed to be six years before  the  incident in question. A suggestion has been made by the accused-respondents to this witness that the marriage was solemnized before seven or eight years back to the incident in question. The relevant line of the evidence is quoted below:

"YAH KAHNA GALAT HAI KI MERI LADKI KI SHADI GHATNA SE 8- 7 SAAL PAHLE HUI THI".

In his statement on oath before the court,  PW-4,  father of the deceased has specifically stated that the marriage was solemnized with the accused Samaydeen before about 11 years of his statement, which was recorded on 10.8.1999, Thus, according to this statement also, the year of marriage comes to later part of 1988.

PW-5, Mustakeem, who is brother of the deceased has stated that the marriage was solemnized on 22.10.1988 and he was present at the time of Nikah. At page 3, he has stated  that this fact was told by him to the Investigating Officer but he did not know why he did not record it. Except this, no cross-examination was made from the side of defence from this witness regarding the date of marriage.

PW-6, Abbas has also stated that the marriage was solemnized on 22.10.1988 and he was present at the time of marriage. This witness is nephew of the complainant-informant, Aziz. In his cross examination, at page 2, he has stated that though he is not literate, but he knows English calendar month and year etc. However, he has denied this fact that he had given any statement to the Investigating Officer. But the Investigating Officer has recorded his statement, under Section 161 Cr.P.C. In his cross examination, no further question on the date of marriage has been asked by the defence. All the witnesses have denied this suggestion of the defence that the marriage was not solemnized  on 22.10.1988. In their statements, none of the accused-persons had disclosed any specific date of marriage. The accused Samaydeen and Zahoor have also given written statements, under Section 313 Cr.P.C, in which they have stated that the marriage was solemnized before 8 years of the death of Smt. Islaman. As, we have discussed earlier, the defence had given suggestion to PW-4 that the marriage was solemnized before 7 or 8 years of the death. This is the marginal difference between period of marriage given by the prosecution and defence. The accused- persons have examined Iqram DW-1, who has also not stated single word about the date of marriage. In such circumstances, there is no reason to disbelieve the prosecution witnesses regarding date of marriage and certainly it was 22.10.1988, which was within seven years of the death of Smt. Islaman.

As regards the demand of dowry is concerned, learned counsel for the accused-respondents has argued that no specific demand has been alleged by the prosecution witnesses nor any specific article has been named, which had been allegedly demanded by the accused. A plain perusal of the statements of prosecution witnesses show that certainly there was no demand of specific article in dowry, but there was dissatisfaction regarding dowry, for which the deceased was maltreated by her husband and in-laws. PW-4, Aziz, the father of the deceased has stated that the Bidai of her daughter was made on the day of marriage itself. He had given ornaments, clothes, furnitures etc to her daughter according to his status and financial position. About after ten days, his daughter came back to his house. Zahoor, the father-in-law of the deceased had come  with her. His daughter told him that her husband and in-laws including father-in-law and mother-in-law, sister and brother of her husband were torturing and taunting her for less dowry brought by her. She named all the five accused persons. He advised his daughter to live in the house of her husband till her death for his and his family's reputation. This advice  by the father to his daughter was in accordance with the Indian tradition. Further, PW-4 has stated that his daughter whenever she used to come to his house, she made complaints against her husband and in-laws for torturing her for less dowry, brought by her. Once she told him that in the winter season, she was ousted by the accused persons from the house. PW-4, Aziz has further stated that he was a poor man and his financial condition was not good, even then, he gave Rs. 3000/ to his son-in-law, Samaydeen, so that he may do some job for livelihood. Further, he has stated that his son-in-law Samaydeen was involved in a murder case, just before the incident in question and was sent to jail. His father and other accused persons came to him for demand of Rs. 5000/ for his bail etc. Though his financial condition was not good, even then he managed for Rs. 2500/ and had given to them considering the welfare of his daughter. This also caused annoyance to them. A Panchayat had taken place between the parties and in that Panchayat, the accused-persons had promised not to harass his daughter for dowry. On their assurance, the Bidai of deceased had taken place, but again the accused persons forced the deceased to go to the house of her father. However, before 10 days back to the incident in question, Smt. Islaman went to the house of her husband. Before this Bidai, the complainant-informant had went to the house of accused-persons along with Sadanand, Arjun Ismail and Mustakeem and others for persuading them not to harass his daughter for dowry and after that, the aforesaid Bidai had taken place. After about 10 days of Bidai, his son-in-law Samaydeen and his brother Suleman came to his house and informed him about missing of deceased. Since past picture was before him, therefore, he suspected foul play in the matter. He detained them in his house and immediately informed to the nearest police station Shahpur, but his report was not recorded there,through the police came to his house and took the aforesaid persons to the police station and later on released them. All these developments were not on record. It appears that since the offences related to police station Adarsh Mandi, therefore, Shahpur police did not want to come in picture in writing and took benefit from the accused persons and released them. Since Shahpur police did not take any action, therefore, the complainant-informant moved Superintendent of Police, Muzaffarnagar vide application Ext. Ka-2, on which, the investigation took place. In his cross examination, PW-4, Aziz at page 6  has stated that he did not remember the names of Punches who participated in the Panchayat due to lapse of time. At page 9, he has stated that according to his financial status, he had given dowry to his daughter, but the accused-persons were not satisfied with it and were taunting and torturing her for dowry. PW-5, Mustakeem relative of the complainant-informant has also stated that he was present in the marriage of deceased with the accused Samaydeen. The complainant-informant had given dowry in the marriage according to his financial status, but when Islaman went to the house of her in-laws, she was harassed by them for less dowry brought by her. When she come back to her father's house after about 4 days of first Bidai, she made complaint to this effect. Further, he has stated that in the beginning, taunt  etc. were made by the accused-persons, but later on they began to assault the deceased. Further, this witness has stated that about 10-11 days back to her death, the deceased came to her father's house. There was a Panchayat between the parties, in which he was also present, beside Arjun, Sadanand, Shamim etc. and in that Panchayat, the accused-persons had assured them not to harass the deceased for less dowry and on their assurance, the deceased again went to her in-laws house. On 22.9.1994, he was informed that Smt. Islaman had died. In his cross-examination, he has stated that on 22.10.1988, the marriage had taken place in his presence. He had told the Investigating Officer about Panchayat, but he  did not record it in his statement, under Section 161 Cr.P.C. He has further stated that in the Panchayat, the accused- persons had given assurance not to harass the deceased for dowry and on that assurance, the last Bidai had taken place. He was present in that Panchayat. At page 5, he has stated that he had come to the house of complainant-informant by chance,though he was not called to attend the Panchayat. Since, he was present at the house of complainant, therefore, he participated in the Panchayat being his relative. The accused-persons had come there. They  had not brought with them any  outsider to their family. The accused-persons had come to the house of complainant-informant at about 10.45 A.M. At page 6, he has stated that in those times, he was the student of B.A. part-I in Shamli Vaishya Degree College. On the date of Panchayat, he had not attended his college. However, he could not remember whether there was holiday or not.

PW-6, Abbas, the nephew of complainant-informant has also stated  about the harassment of deceased by the accused-persons for less dowry. He has also stated about the Panchayat. In his cross examination, he has also corroborated this fact that the deceased had made complaint in his presence to her father and other family members regarding maltreatment given to her by her in-laws for lesser dowry. He has further stated that when the husband of deceased along with his brother had come to the house of the complainant-informant for informing him about missing of deceased, he was present there. The complainant-informant had suspected foul play and detained them in his house and informed the Sahpur police. He has also corroborated this fact that on the information of the complainant-informant, Shahpur police came to his house and took the aforesaid persons to the police station. The accused-persons have examined Iqram DW-1, who has stated that the relations of the deceased with her husband were normal and there was no dispute between them. This statement is not believable when there is ample evidence regarding maltreatment. Thus, it is evident from the statements of prosecution witnesses that the deceased was maltreated by her husband for lesser dowry brought by her in the marriage. However, this is admitted fact that the deceased had given birth to three children, out of which, two are alive. Learned counsel for the defence has argued that the problem of dowry would not  have survived even after birth of three children. But this argument has no force because there is no time limit for the greedy person to extort money.

As we have discussed earlier, all the witnesses have stated this fact that the deceased was being harassed by the accused-persons due to lesser dowry brought by her. None of them has stated about specific articles demanded by the accused-persons. On this basis, learned counsel for the accused-respondents has argued that there was no demand of dowry as defined in the explanation attached to Section 304-B of Indian Penal Code, which says that "Dowry" shall have the  same meaning as in section 2 of Dowry Prohibition Act 1961". Under Section 304-B, the provisions of definition of dowry death has been given. Section 304-B I.P.C. reads as under:

"304-B: Dowry death:(1) Where the death of an woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within even years of her marriage and t 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".

Section 2 of Dowry Prohibition Act 1961 defines as under:

"Section 2. Definition of dowry. In this Act, dowry means any property or valuable security given or agreed to be given either directly or indirectly-

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mehr in the case of persons to whom the Muslim Personal Law(Shariat) applies.

Explanation-I. For the removal of doubts, it is hereby declared that any presents made at the time of a marriage to either party to the marriage in the form of cash, ornaments, clothes or other articles, shall not be deemed to be dowry within the meaning of this section, unless they are made a as consideration for the marriage of the said parties.

Explanation II. The expression 'valuable security' has the same meaning in section 30 of the Indian Penal Code".

As we have discussed earlier, the marriage had taken place in 1988 and the death was caused in 1994 and the statements of witnesses were recorded after about one year, therefore, it was but natural for the witnesses not to remember actual facts regarding dowry taken place in the year 1988 or after that. The complainant-informant was illiterate person and other witnesses,namely, Mustakeem and Abbas were also less educated persons and admittedly they belonged to the village. One should not fail to take note that the witnesses are rustic villagers. It is difficult to expect them to remember the events with mathematical precision after a lapse of too much time. It is a  common knowledge that ordinarily human memories are apt to blur with the  passage of time.

PW-1 and other witnesses  have clearly stated this fact that whenever deceased came to her parents' house, she made complaint against the accused-persons for maltreatment given to her for bringing lesser dowry in the marriage. But somehow or other, they pacified her to return to her husband's house. A Panchayat had also taken place in this regard, in which the aforesaid witnesses had participated. This is  specific case that the accused had maltreated the deceased for not bringing sufficient articles in dowry. They were taunting to the deceased for lesser dowry brought by her, even after giving birth to three children. These are the facts, which show that the accused-persons were not satisfied with the articles given in dowry and they were harassing the deceased and taunting her for bringing lesser dowry. Thus, this fact is proved that there was demand of dowry, though no specific article, which  were demanded by the accused has been disclosed. This is a normal conduct of the majority that they express  displeasures about lesser amount of dowry without specifying anything. They need more and more articles in dowry. Therefore, it cannot be said that the accused-persons were not demanding dowry and for this, they had not harassed the deceased.

Learned counsel for the accused-persons has argued that no independent person has been produced in evidence to prove the charges levelled against the accused. The witnesses produced are interested and related witnesses and cannot be relied upon. But, we see no force in this contention, because there is no such law that the testimony of interested or related witnesses cannot be relied upon. The law is very clear on the point and it is settled that the testimony of such witnesses can be relied upon after due scrutiny and caution. In the case of Ravi  Vs. State of U.P. 2004 (11) SCC 266, the following observations has been made by the Hon'ble  Apex  Court:

"It is well settled in a catena of cases that the evidence of eye witnesses cannot be rejected merely because they are related. The relatives will not exonerate real culprits and falsely implicate others".

As regard independent witnesses are concerned, no one can expect  any person to give evidence against the accused-persons, who belong to their village or locality. The parents of married women normally do not see such incidents, which take place in the house of in-laws of the women. It is a matter of common experience that unconcerned persons do not depose or give evidence in favour of any party for the manifold reasons. They feel harassment in attending police Thana and court. They also suspect danger to their security in involving them in the matter of others, especially in the case of dowry death when all the incidents take place in the house of in-laws, therefore, parents of woman can only say this much that daughters, sisters or any other member of the family married so told them about maltreatment by the in-laws for dowry or specific demand of dowry. Considering these difficulties, the legislature has enacted Section 113-B of Indian Evidence Act, which gives a presumption about dowry death, if the death is caused  in unnatural manner within seven years of the marriage. This is for the accused-persons to clarify how the lady died. In the case of Appa Bbai Vs. State of Gujrat; 1988 (Supp) SCC 241, the Hon'ble Apex Court has dealt with the appreciation of evidence given by the interested witnesses. In that case it has been clearly held that the Court cannot reject evidence of interested witnesses, though their testimony is to be dealt with after great care and scrutiny. In the case of Seeman Vs. State; 2005(11) SCC 142, the Hon'ble Apex Court has held that "it is well settled that the quality not quantity of evidence, which should be judged by the Court to place  reliance on it. Non-production of independent witnesses by the prosecution, cannot be taken to a circumstance to discredit the statements of interested witnesses".

Learned counsel for the accused-respondents pointed out some discrepancies in the statements of prosecution witnesses, who did not disclose some fact to the Investigating Officer, but for the first time, disclose before the Court. On the basis of such fact, learned counsel for the accused-respondents argued that testimony of prosecution witnesses cannot be relied upon. But we see no force in this contention. The law is very clear on the point.  In the case of State of Gujrat Vs. N.D. Patel and others; 1983 SCC (crl) 590, the following observations have been made by the Hon'ble Apex Court:

"The mere fact that a witness did not disclose a particular fact before the police, but disclose it before the Court is not the ground to discard his testimony particularly when he is injured and his presence on the spot was doubtless".

In the present case before us, as we have discussed earlier, all the three witnesses of fact have clearly stated that they were present at the time of Nikah, they were also present when  deceased returned and  made complaint against her in-laws for maltreatment for bringing lesser dowry and in  the Panchayat held in this connection, the accused-persons admitted their fault and assured them not to harass the deceased further for lesser dowry. A lengthy cross examination were made by the prosecution from these witnesses, but nothing could be found in their cross examinations, which could support  the defence.

One Ravindra Kumar, PW-1, had reported the matter to the police. His written report is Ext. Ka-1. In his report, he has informed the police that when his servant Chhotu was irrigating his sugarcane field, he saw a dead body there. He identified the dead body being the dead body of Islaman, wife of Samaydeen, the resident of his village. On the basis of that report, the police registered a case, which is evident from the chik report ext. Ka-3. The police started investigation, recovered the dead body and after completing formalities, sent it for postmortem examination. The post-mortem examination was conducted by the doctor concerned and according to doctor, the death was caused due to asphyxia  as a result of strangulation. Two abrasions were  also found on the body of deceased. Thus, it was clear that the deceased was murdered. The defence is that someone else had murdered the deceased, when she had gone to agricultural field for easing herself. The husband of the deceased, namely, Samaydeen went to the house of complainant-informant on 26.9.1994 along with his brother Suleman and informed him about missing of Smt. Islaman. The complainant-informant Aziz was well acquainted with the past incidents, therefore, he suspected  that these persons had killed his daughter and disappeared her dead body. He detained them in his house; informed the nearest police station Shahpur and made efforts to lodge report, but Sahpur police did not register his  report probably because  the murder had been committed in the jurisdiction of other police station. However, as we have discussed earlier, there is evidence to this effect that Sahpur police came to the house of complainant-informant and took these persons to the police station and  for the reasons best known to the police, they were released. On 27.9.1994, the complainant-informant  got specific information about murder of his daughter. The dead body had been recovered by the police, the cause of death  was strangulation. Thus, murder was clear. The evidence on record shows that the deceased was being harassed and maltreated by the accused-persons for lesser dowry brought by her in the marriage. The death was caused within seven years of the marriage, therefore, there was presumption that the deceased was killed by her husband due to dowry and it was clearly a dowry death because the accused husband of the deceased could not give reasonable explanation for the death of his wife. The dead body was found in the sugarcane field in the same village, which was situate about 200 steps away from the house of accused-respondents. This is clear that instead of making search, the husband of deceased went to the house of his father-in-law to divert his mind from him. He was trying to save him. He went to convince his father-in-law that the deceased was missing, but father-in-law had suspicion in his mind that his daughter was killed by her husband and other family members and he reacted accordingly. Much emphasis was laid down by learned counsel for the accused-respondents on the F.I.R. As we have discussed earlier that the F.I.R. Ext. Ka-1 was lodged by one Ravindra Kumar to the police station Adarsh Mandi, on the basis of which, the police registered a case and started investigation. In that report,only this fact was mentioned that the dead body of the wife of Samaydeen was lying in his sugarcane field. The complainant-informant of that report, namely, Ravindra Kumar has been examined by the prosecution as PW-1. He has specifically stated that he did not know name of the wife of Samaydeen. His statement was very natural because ordinarily  no one  knows the names of ladies of his village or Mohalla. Further, he denied the fact that he had knowledge of any dispute between the deceased and her husband. Since in the report Ext. Ka-1, simple information regarding presence of dead body in the sugarcane field was given to the police, therefore, this was not to be treated as F.I.R. The detailed F.I.R. was Ext. Ka-2, which was given by PW-4, Aziz the  father of the deceased, addressed to Superintendent of police, Muzaffarnagar. This report is dated 27.9.1994. But it has come in evidence that this was handed over to Adarsh Mandi police on 28.9.1994. Learned trial court did not pay any attention to the entry of this report in G.D Ext. Ka-13. A lengthy discussion has been made in the judgement about credibility of this report Ex. Ka-2, but discussions were not based on evidence on record. The Ext. Ka-13  G.D. No.22 dated 28.9.1994 of Adarsh Mandi Shamli police, shows that at 7.10 P.M., this report ext. Ka-2 was handed over to the police and was entered in the G.D, therefore,  all the arguments of learned counsel for the defence regarding non-existence of this report prior to filing it in the court, become baseless. In the report Ext. Ka-2, everything was given in details. On the basis of said report, the police proceeded. As we have discussed earlier, the first report did not contain any fact regarding crime. This was a simple information about presence of dead body in the sugarcane field, therefore, that was not F.I.R. The second report Ext. Ka-2 was the F.I.R, on the basis of which, the entire investigation was conducted. In the case of Ram Sinh Bavaji Jadega Vs. State of Gujrat; 1994 (2) SCC 685, the Hon'ble Apex Court has made the position clear regrading F.I.R. In that case, telephonic message  was given to the police, on which, the police proceeded  to the place of occurrence to find out the details of offence and that information was not treated to be F.I.R. In the cases of  Tapinder Singh vs. State of Punjab and others; 1970 (2) SCC 113, Dhananjoy Chatterji Vs. State of West Bengal;  1994(2) SCC 220 and Uppari Venkataswami Vs. The Public Prosecutor  High Court of Andhra Pradesh; 1996(7) SCC 232 also, this position has been clarified. Since there was entry in the G.D of police station on 28.9.1994 regrading Ext. Ka-2 and in that G.D. complete copy of Ext. Ka-2 was made, therefore, this is irrelevant why this report was not filed earlier. This may be noted here that Ext. Ka-2 was filed in the court by PW-4, Aziz  at the time of his deposition. In that report, factum of dowry,harassment etc. by the accused  were given in details. This fact was also mentioned that immediately after getting information by the accused, Samaydeen on 26.9.1994 about missing of his daughter, the complainant-informant made complaint to Shahpur police and when the Shahpur police did not take any action, then he approached the Superintendent of Police, Muzaffarnagar  and gave this report Ext. Ka-2. He has specifically stated in his statement that the report was handed over to him by any official sitting there, which was given by him to Adarsh Mandi police on 28.9.1994.

As we have discussed earlier, PW-4, Aziz is illiterate witness. At page 6, he has stated that the information about death of his daughter was received by him on seventh date and he handed over F.I.R. Ext. Ka-1 to the police on eight date. Further he stated that on seventh date, he had given application to the Superintendent of Police, Muzaffarnagar. He has also stated that the dead body of the deceased was received by him on seventh date. This shows his ignorance about date, time and month being illiterate person. This is clear from the record that the dead body was handed over to him on 27.9.1994 and the application ext. Ka-2 was handed over by him to the police on 28.9.1994 and the entry was made in the G.D on that date.  This is also clear from his statement that Samaydeen had informed him about missing of deceased before one day of recovery of dead body, therefore, it was 26.9.1994 and not sixth date as told by this witness in the statement. On this basis, his statement cannot be discarded.

From the evidence on record, it is clear that the husband of the deceased, namely, Samaydeen was fully involved in harassing the deceased and taunting her for lesser dowry brought by her form her parents. She was maltreated by him, and killed by him for dowry. The evidence which has come on record also show that Samaydeen is not a good charactered man. He is also involved in the murder case, which has not been denied by him. He is a Taxi Driver. Regarding involvement of other accused-persons, there are some reservations. PW-4, Aziz, the complainant-informant himself could not clearly state  whether other accused-persons were living separately. All the co-accused have stated in their statements, under section 313 Cr.P.C. that they were living separately from Samaydeen. PW-1, Ravindra Singh and PW-2 Chandan Singh have  also stated  that Samaydeen was living separately  along with his wife and mess was also separate. Samaydeen has also stated so under section 313 Cr.P.C. DW-1, Iqram has also stated that Samaydeen used to live separately along with his wife from other members of his family, though the allegations have been made by the complainant-informant that all the accused persons were living jointly and were involved in harassment and maltreatment of deceased for lesser dowry. However, the Investigating Officer has not shown separate houses of  the accused persons, but from the evidence on record, it appears that the other accused persons were living separately from Samaydeen. In such circumstances, it transpires that Samaydeen was living separately with his deceased wife and the other accused persons were living separately from Samaydeen. As such, they can be given benefit of doubt.

In view of our above discussions, it is crystal clear that Samaydeen being husband of deceased Smt. Islaman had harassed and maltreated her for lesser dowry brought by her in the marriage. He also used to taunt her for this purpose. Even after  birth of three children, he could not restrain himself from greed of dowry and ultimately killed his wife either in the sugarcane field or in his house and after that threw the dead body in the sugarcane field with an intention to finish the evidence of murder and conceal the dead body to save him from penalty. This crime was committed within seven years of marriage of the deceased, therefore, learned trial court has committed error in acquitting him from the charges levelled against him. The acquittal of other accused- persons, namely, Jahoor Hasan, Suleman, Subedeen and Smt. Vakeela need not be interfered with and they can be  given benefit of doubt on the basis of evidence, they were residing separately from Samaydeen and were probably not involved in this crime.

In the result, the accused-respondent Samedeen is held guilty for the offence, punishable under sections 498-A, 304-B and 201 I.P.C and appeal against him is allowed. He is convicted for the offence, punishable under sections 498-A I.P.C. and is sentenced to undergo R.I. for three years  and also to pay fine  Rs. 2000/(two thousand only) and in default of payment of fine, he shall undergo additional R.I. for six months. He is further convicted for the offence, punishable under section 304-B I.P.C. and is sentenced to undergo R.I. for ten years. He is also convicted for the offence, punishable under Section 201 I.P.C. and is sentenced to undergo R.I. for three years and pay fine  Rs. 2000/(two thousand only) and in default of payment of fine, he shall undergo additional R.I. for six months. All the sentences shall run concurrently. He is on bail, his bail is cancelled and sureties are discharged.

The C.J.M. Muzaffarnagar is directed to issue non-bailable warrant of arrest against accused-respondent Samaydeen and ensure compliance so that he may be put behind the bar to serve out the sentences imposed above. The compliance report within a month on receipt of copy of this order.

The appeal against accused-respondents, namely,  Jahoor Hasan, Suleman, Subedeen and Smt. Vakeela stands dismissed. They are on bail, their bail bonds are cancelled and sureties are discharged. They need not surrender to their bail.

Let a copy of this judgement and order be sent to the C.J.M, Muzaffarnagar within seven days for compliance.

Date: March,8th 2007

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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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