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2009 DIGILAW 2752 (ALL)

TAHIR v. STATE OF U. P.

2009-08-03

VINOD PRASAD, VIRENDRA SINGH

body2009
JUDGMENT VINOD PRASAD, J. 1. challenge in this Criminal Appeal by the two appellants Tahir, the son and Anwari, his mother, is to the impugned judgment and order dated 9.3.2007, by which Additional Sessions Judge, Court No.6, Ghaziabad, while convicting them under section 302 I.P.C has imposed a sentence of life imprisonment with fine of Rs. 20,000/- each with further direction that in default of payment of fine, each of the two appellants shall undergo two years further rigorous imprisonment recorded in S.T. No. 1532 of 2003, State v Tahir and another. 2. The background facts, as are mentioned in the written report, EX-Ka-1 and later on stated before the Trial Court are that Bano (deceased) daughter of in formant Aflatoon PW1, was married to appellant Tahir who is the son of another appellant Anwari since last eight years Suited to his fiscal condition informant had given dowry in the marriage but, being unsatiated by dowry lust deceased was even assaulted for rapacity; Bano had complained to the informant regarding the torture meted out to her and, because a this reason, since last six-seven months she was living with her informant father at he parental home in village Kailawan. On and half months prior to her death de ceased was brought back to his house a Shahid Nagar, Ghaziabad, by the appellants because of intervention of respected persons of Kailawan and Shahid Nagar. 3. Alimmuddin, cousin brother of the deceased and nephew of informant who lived in Ghaziabad, had gone to appellant's house on 30/31.5.2003 at 10 p.m where he saw that the two appellants were assaulting Bano with kicks and fists. Alimmuddin endeavoured to save Bano, but was abused and pushed out. Informal was informed by Alimmuddin next day morning on 31.5.2003 at 7-8 a.m. about ft said incident on telephone. Accompanied by co-villagers, informant travelled 100 Kms by bus and reached Shahid Nagar, the house of the appellants at 12 noon where he found the corpse of his daughter lying out side, who was dead by that time. The two appellants had absconded. Being confident that the deceased was murdered by the appellants because of their greed for dowry that the informant got a written report, Ext. The two appellants had absconded. Being confident that the deceased was murdered by the appellants because of their greed for dowry that the informant got a written report, Ext. Ka 1, scribed by Iqrammuddin and lodged it at police station Sahibabad district Ghaziabad at a distance of six Km the same day at 1 p.m. as crime number 539 of 2003, under section 302 I.P.C. 4. Head constable Ram Pal Sing P.W-5 prepared chick F.I.R. (Ext. Ka-4) and corresponding G.D. entry (Ext.Ka-5). Har Prasad Singh, S.S.I of Police Station Sahib bad, P.W-6, commenced investigation and after coping chick F.I.R and G.D. Entry recorded the statement of the informant. I.O. entrusted S.I Vinay Kumar to conduct the inquest on the dead body of the deceased and he himself recorded the statements of - Smt. Akhatari, PW2, and Alimmuddin, PW4, and thereafter inspected the spot and prepared the site plan Ext. Ka-6. Appellant Anwari was arrested on 1.6.2003 and her statement was recorded. Following day appellant Tahir was also arrested and his statement was also recorded. Subsequently I.O. copied inquest report and the post mortem examination report and thereafter, If interrogated Aflatoon, PW1 and Salimmuddin. During course of investigation I.O. had also dispatched viscera for forensic expert examination. Concluding the investigation PW 6, the I.O., laid a charge-sheet It under section 302 I.P.C against the two appellants which Ext.Ka-7. 5. Post-mortem examination of the dead body was performed by doctor R.N.P. Misra, P.W. 3, on 1.6.2003 at 3.30 p.m. who had proved his post-mortem examination report Ext. ka 3. Doctor had detected that the deceased was average built and was 25 years of age. One and half day had passed off since her death. Her face, throat, nails and eyes were highly cynosed and congested. Abdomen was slightly distended .y and greenish dis-colouration had started at places. Neck tissue had ruptured. Blood was oozing out from nostrils. Deceased tongue were bitten between her teeth and at was congested. Throat skin were decomposing markedly. Eyelids were swollen and cynosed and rigour mortis had passed off. Membranes, pleura, bronchi, right and left lungs, were congested. Her heart was coming out on incision. Cause of her death was asphyxia as a result of throttling. Doctor had preserved viscera to rule out foul play. Throat skin were decomposing markedly. Eyelids were swollen and cynosed and rigour mortis had passed off. Membranes, pleura, bronchi, right and left lungs, were congested. Her heart was coming out on incision. Cause of her death was asphyxia as a result of throttling. Doctor had preserved viscera to rule out foul play. Following anti-mortem injury was deciphered on the throat of the deceased "A subcutaneous hameatoma present on both sides of throat measuring 16 cm x 14 cm x 4 cm with contused throat muscles". 6. Viscera report Ext.Ka-8 dated 8.10.2003 by Forensic science expert indicated that Bano, the deceased, was administered Aluminium phosphide poison which was found in her stomach and in the tissues of neck. 7. Appellants were summoned by the CJM and their case was committed to the Court of sessions for trial Additional Sessions Judge/Special Judge (NDPS Act), Ghaziabad framed the charges against the appellant under section 302 I.P.C. on 17.12.2003. 8. The prosecution farthered it's case in Sessions Trial No. 1532 of 2003, State v. Tahir and other, by examining seven prosecution witnesses to cement the guilt of the appellants, out of whom, Aflatoon P.W-1 (informant), Akhatari P.W-2, Alimmuddin PW-4 are the witnesses of the facts. Dr. R.M.P. Mishra. P.W-3, Head Constable Ram Pal Singh, P.W-5, S.S.I. Har Prasad Singh P.W-6, and S.I. Vinay Kumar, P.W-7 are formal witnesses. 9. In their defence under section 313 Cr.P.C appellants denied the charge and incriminating circumstances appearing against them in the prosecution evidence and pleaded a defence of false implication. However, they did not examine any witness in their defence. 10. Additional Sessions Judge, Court No.6, Ghaziabad found the case of the prosecution proved to the hilt and guilt of the appellants established and consequently it convicted and sentenced them as is inked in para 1 of this judgment through the impugned judgment and order, resultantly, this appeal by the appellants questioning their conviction and sentence. 11. We have heard Sri Apul Misra, Learned Counsel in support of this appeal and learned Additional Government Advocate in opposition and have perused and analysed the entire Trial Court record ourselves. 12. Assailing the impugned judgment learned Counsel for the appellants contended that informant is not an eye-witness of the incident. 11. We have heard Sri Apul Misra, Learned Counsel in support of this appeal and learned Additional Government Advocate in opposition and have perused and analysed the entire Trial Court record ourselves. 12. Assailing the impugned judgment learned Counsel for the appellants contended that informant is not an eye-witness of the incident. The two witnesses of facts P.W-2 Smt. Akhatari and P.W-4 Alimmuddin are not reliable and their evidences suffers from inherent improbability and does not establish the charge against the appellants. Sri Mishra further contended that the conduct of P.W 2 and P.W-4 is very un-natural and it is highly unsafe to attach worthiness to them. It was further urged that there is no direct evidence of actual murder and therefore, merely on hypothesis, the guilt of the appellants should not be confirmed. Further it is submitted that since the marriage was contracted 8 years prior to the date of the incident, therefore, causing of murder is not established and the initial burden of proof has not been discharged by the prosecution. Summing up it was submitted that the instant appeal deserves to be allowed and the conviction and sentence of the appellants deserves to be set aside and they be acquitted of the charge levelled against them. 13. Learned A.G.A, per contra, vehemently refuted the contentions raised by the learned Counsel for the appellant and submitted that the prosecution has successfully cemented the guilt of the appellants who have committed the murder of the deceased. She further submitted that the appeal being devoid of merits deserves to be dismissed. 14. We have considered rival submissions. An analysis of the entire gamut of evidence and factual matrix of the case reveals that some of the facts are not disputed in the instant appeal such as the deceased Bano was the wife of appellant Tahir and Smt. Anwari was her mother-in law. Her marriage was contracted 8 years prior to her death. Deceased was brought back from her parental home by the appellant and that she was subjected to cruelty because of demand of dowry. At tour allegations of demand of dowry and torture meted out to the deceased has not been refuted in the cross-examination by the appellants. In fact P.W-l has not even been suggested that there was no demand of dowry by the appellants. At tour allegations of demand of dowry and torture meted out to the deceased has not been refuted in the cross-examination by the appellants. In fact P.W-l has not even been suggested that there was no demand of dowry by the appellants. Informant PW1 has successfully supported his version on these aspects and defence is unsuccessful in dislodging those evidences by any material on record. These allegations are also thus not disputed. On such evidences there is no hesitency in our mind that allegations of demand of dowry and torture are well founded and have been established beyond any pale of doubt. PW 2 Akhtari has supported the depositions of the informant, PW1 on these aspects of the allegations and defence has not been able to alleviate veracity of her such depositions. Over all assessment of the evidences of theses two witnesses inspires confidence and make it worthy of acceptance, more so when no serious challenge has been thrown by the appellants to make it unworthy of credence. 15. Informant has further testified that when he had reached the house of the appellants, he found his daughter dead. Smt. Akhtari PW2 and Alimmuddin, PW4 are the witness of assault on the deceased in the• previous night by the appellants in a closed door. Their evidence is clear cogent and trustworthy. Smt. Akhtari, PW2 had got the marriage of the deceased with appellant Tahir Settled. Her evidence brought forth further facts that, hearing shouts of assault at night of 30/31.5.2003 she had gone to the house of the appellants and had endeavoured to get the bolted door opened but her attempt had failed. To suppress the shrieks of the deceased emanating from the house, even a music deck was sounded in full volume. All these incriminating circumstances are loaded heavily against the appellants who have failed miserably to bring on record any material to discredit" these depositions by fact witnesses. PW 2 and PW 4 are related to the informant and they have no enimous to falsely implicate appellants. Medical evidence of the doctor and injury on the neck of the deceased further cements prosecution allegations of assault on the deceased. 16. Informant has further testified that neighbours had informed the police regarding the death of his daughter and on such an information police had reached at the spot prior to his arrival. Medical evidence of the doctor and injury on the neck of the deceased further cements prosecution allegations of assault on the deceased. 16. Informant has further testified that neighbours had informed the police regarding the death of his daughter and on such an information police had reached at the spot prior to his arrival. None of the two appellants were present in house at that time. What is incognito insuch a deposition is the abscondence of accused-appellants from the spot after commission of the crime which is again a circumstance incongruent with the innocence of the appellants. We note here that informant has specifically denied the suggestion that the deceased had died due to illness of a neck disease. 17. Above critical appreciations probablises the view that prosecution has ably discharged it's initial burden of proof by bringing on record cogent and credible evidences for the charge levelled by it against the appellants. Now, when the prosecution has discharged it's burden, and attour, when the allegations of demand of dowry and torture are not specifically denied by the appellants, then in the present case burden of proof shifted from prosecution to that on the appellants to prove their innocence on preponderance of probability. It was, now, for the appellants to bring out the circumstances in which deceased had lost her life, which burden they have miserably failed to discharge. Entire cross-examination of prosecution witnesses sans any statement which can even remotely suggest their innocence. The defence plea by the appellants is so inconsistent with confidence inspiring medical evidence and other factual aspects of prosecution allegations that it does not require any discussion at all. The defence suggestion is purely conjectural without any basis and is liable to be rejected outright. There is nothing on record for such an iniquitous defence as that of the appellants, and that is why, it seems, that they could not muster the courage to lead any defence evidence to support their incorrigible defence. Plea of deceased dying because of neck disease raised by the appellants is palpably a false suggestion. Proven cause of deceased death was asphyxia as result of throttling, with administering of poison to her as well, which facts are perceptible from the Doctor's evidence coupled with viscera, examination report. Plea of deceased dying because of neck disease raised by the appellants is palpably a false suggestion. Proven cause of deceased death was asphyxia as result of throttling, with administering of poison to her as well, which facts are perceptible from the Doctor's evidence coupled with viscera, examination report. Prosecution thus had succeeded in establishing that the deceased had died a homicidal death amounting to murder because of demand of dowry more that eight years of the marriage and the charge against the appellants was well proved beyond any reasonable doubt. 18. Following additional facts further strengthen our above opinion. Firstly that the deceased had lost her life inside the house of the appellants. It is not the defence of the appellants that at any point of time they were not present inside their house. Prosecution has successfully brought on the record the fact that at the time and on the late of the incident only three persons were present inside the house the two appellants and the deceased. As recorded above death was homicidal with mark of injury on the neck of the deceased with rupture of skin tissues and therefore it was for the appellants to how the deceased had lost her life which they have failed to show even on preponderance of probabilities. Their false defence is a strong circumstance against them which shows their culpability in committing the crime. Their presence in the house at or about the time of the murder is a proven fact. Their is no material on record to even remotely suggest that the deceased was suffering from any ailment. There is no medical prescription or any other reliable material for such a blank suggestion. Akhtari PW 2 and Alimmuddin, PW4 have fully supported assault on the deceased by the appellants because of their rapacious greed and have given an eye-witness account for that allegation. 19. In the end, we find that it is not a case of suicidal or accidental death and, therefore, irresistible conclusion is that appellants had caused deceased death inside their house for none-fulfilment of their dowry demand. 20. Closing our analytical discussion and summing up, we find that the prosecution has succeeded. in establishing it's charge against the appellants of causing murder of the deceased of first degree and appellants have failed to dislodge the charge levelled against them. 20. Closing our analytical discussion and summing up, we find that the prosecution has succeeded. in establishing it's charge against the appellants of causing murder of the deceased of first degree and appellants have failed to dislodge the charge levelled against them. They have not been able to discharge their legal burden of informing the manner and the cause of death of Bano. In essence we find instant appeal devoid of merit and liable to be rejected and we here by dismiss it. 21. Appellant No.1 Tahir is already in jail. He shall remain in jail to serve out remaining part of his sentence. The appellant No.2 Anwari, is on bail. She is directed to surrender forthwith, failing which Trial Court is directed to get her arrested and lodge her in jail to serve out her sentence. Her surety and bail bonds are discharged. 22. Let a copy of this judgment be intimated to the Trial Court for further action at it's end.