Research › Search › Judgment

Allahabad High Court · body

2001 DIGILAW 1135 (ALL)

MOHD. AZEEM v. STATE OF UTTAR PRADESH

2001-12-06

U.S.TRIPATHI

body2001
U. S. TRIPATHI, J. ( 1 ) THIS revision has been directed against the order dated 18-7-2001 passed by Additional Sessions Judge, Court No. 2, Bareilly, framing charges against the applicants under Section 304b, I. P. C. ( 2 ) THE prosecution story, briefly stated, was that Mohd. Azeem applicant No. 1 was the husband of Smt. Shakeera Begum deceased bride and applicant No. 2 was her elder brother-in-law. The marriage of Shakeera Begum with applicant No. 1 was performed on 19-3-1998. On 10-7-2000. Jeeshan Khan, opposite party No. 2, lodged a report against the applicants as well as their mother and Smt. Razia Begum wife of appellant No. 2 under Sections 498-A, 307, I. P. C. and the Dowry Prohibition Act with the allegation that his sister Smt. Shakeera Begum was married with applicant Azeem on 19-3-1998. After the marriage, the applicants and their other family members started demanding scooter and Rupees 50,000/- cash for running a shop in dowry and were treating his sister with cruelty for and on account of demand of dowry. A sum of Rs. 20,000. 00 was paid as dowry, but the accused were not satisfied and ultimately on 18-7-2000 at about 8 P. M. the above accused persons sprinkled kerosene oil on Shakeera Begum and set her on fire. In order to conceal their evil design they took her to Bareilly, without giving information to him. On getting information, the complainant went to Bareilly hospital, where he found his sister lying on bed and she disclosed about the incident. ( 3 ) ON the above report, a case at crime No. 392 of 2000 was registered at P. S. Kotwali Faridpur, district Bareilly. Shakeera Begum died in the hospital on 23-7-2000. Prior to her death, her dying declaration was also recorded. After investigation, the police submitted charge sheet against the applicants and Smt. Ajjo Bano and Razia Begum under Sections 304-B and 498-A, I. P. C. ( 4 ) THE case was committed to the Court of Session. The Additional Sessions Judge found that a prima facie case under Section 304-B, I. P. C. was made out against all the accused and in the alternative a prima facie case under Section 302, I. P. C. was also made out against Smt. Ajjo Bano @ Azaib Begum and Smt. Razia Begum. The Additional Sessions Judge found that a prima facie case under Section 304-B, I. P. C. was made out against all the accused and in the alternative a prima facie case under Section 302, I. P. C. was also made out against Smt. Ajjo Bano @ Azaib Begum and Smt. Razia Begum. Accordingly, he framed charges under Section 304b, I. P. C. against all the accused and also framed charge under Section 302, I. P. C. against Ajjo Bano and Razia Begum. ( 5 ) I have heard the learned counsel for the applicants O. P. No. 2 and the learned A. G. A. and perused the record. ( 6 ) IT was contended by the learned counsel for the applicants that a specific charge under Section 302, I. P. C. was framed against Smt. Ajjo Bano and Razia Begum and therefore, no charge under Section 304-B, I. P. C. could be framed against the applicants as the ingredients of above offences are different and therefore, framing charge against the applicants under Section 304-B, I. P. C. was illegal and is liable to be quashed. ( 7 ) HAVING gone through the record, I find no force in the above contention. ( 8 ) OFFENCE punishable under Section 302, I. P. C. is made out against a person, who commits murder by intentionally or knowingly causing death of person or persons. ( 9 ) THE offence punishable under Section 304-B, I. P. C. is made out against a person, who commits dowry death. "dowry death" as defined under Section 304b (1) means as under :-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 of dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death. Explanation- For the purposes of this sub-section, "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961 ). Explanation- For the purposes of this sub-section, "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961 ). ( 10 ) PERUSAL of F. I. R. and statements of witnesses recorded during investigation (Annexures-4 and 6 of the memo of revision) reveal that the applicants were husband and other relatives of the deceased bride Smt. Shakeera Begum. It is also not disputed that death of Smt. Shakeera Begum took place within two years of her marriage. It is not disputed that Smt. Shakeera Begum died on account of burn injuries. As such, her death took place otherwise than under normal circumstances. There is also allegation against the applicants and other accused that they were demanding dowry and were subjecting the deceased to cruelty and harassment for and in connection with demand of dowry. As such there is sufficient evidence to make out prima facie case against the applicants and other accused for the offence punishable under Section 304, I. P. C. ( 11 ) THE dying declaration of Smt. Shakeera Begum deceased was also recorded on 19-7-2000 by Sri M. A. Khan, Additional City Magistrate, IInd Bareilly. Perusal of above dying declaration, which is annexed as Annexure-3 to the memo of revision shows that in her above dying declaration Smt. Shakeera Begum stated that yesterday on 18-7-2000 at about 5 P. M. in the evening her Sas and Jethani Razia started quarrelling with her on account of cleaning of clothes. She also replied. Then being angry her Sas and Jethani Razia sprinkled kerosene oil on her from a container (Pipia) and set her on fire with the help of match stick due to which she was badly burnt. Thereafter her husband took her to hospital and got her admitted there. The above dying declaration indicates that she was murdered by her Sas and Jethani, co-accused Smt. Ajjo Bano and Smt. Razia Begum by intentionally and knowingly causing her death. ( 12 ) SECTION 221, Cr. Thereafter her husband took her to hospital and got her admitted there. The above dying declaration indicates that she was murdered by her Sas and Jethani, co-accused Smt. Ajjo Bano and Smt. Razia Begum by intentionally and knowingly causing her death. ( 12 ) SECTION 221, Cr. P. C. reads as under:-WHERE it is doubtful what offence has been committed.- (1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences. (2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it. ( 13 ) IN this case, the act of Smt. Ajjo Bano and Smt. Razia Begum was of such a nature that it is doubtful which of the two offences i. e. offence punishable under Section 304b, I. P. C. or offence punishable under Section 302, I. P. C. would have been made out. In these circumstances, under the provisions of Section 221, Cr. P. C. the above two ladies could be charged and tried for the offence punishable under Section 304b, I. P. C. and in the alternative for the offence punishable under Section 302, I. P. C. The learned Sessions Judge has, therefore, rightly framed two charges against the two ladies. However, he has not mentioned on the charge under Section 302, I. P. C. as alternative charge. This is simple irregularity and may be cured by the Trial Court by amending it. ( 14 ) THE learned counsel for the applicant further contended that by framing two separate charges the accused would be put to prejudice and it will create difficulty in cross-examination of the witnesses. There is no force in the above contention, firstly; because the applicants Mohd. Azeem and Mohd. ( 14 ) THE learned counsel for the applicant further contended that by framing two separate charges the accused would be put to prejudice and it will create difficulty in cross-examination of the witnesses. There is no force in the above contention, firstly; because the applicants Mohd. Azeem and Mohd. Idris have been charged only under Section 304b, I. P. C. and not with any alternative charge and secondly; that there is evidence to make out prima facie cases under Section 304-B, I. P. C. as well as under Section 302, I. P. C. against two ladies namely Smt. Ajjo Bano and Smt. Razia Begum. As such, no prejudice would be caused by framing alternative charge under Section 302, I. P. C. against the above ladies. ( 15 ) THE revision thus has no force and is, accordingly, dismissed with the direction that the learned Sessions Judge shall amend the charge under Section 302, I. P. C. against Smt. Ajjo Bano and Smt. Razia Begum mentioning it an alternative charge. Revision dismissed. .