Research › Search › Judgment

Uttarakhand High Court · body

2013 DIGILAW 164 (UTT)

MURTAZA v. STATE OF UTTARAKHAND

2013-04-01

Alok Singh

body2013
JUDGMENT Hon’ble Alok Singh, J. (Oral) Appellants, by way of present appeals, are assailing judgment and order dated 24.07.2010, passed by learned Additional Sessions Judge / 1st FTC, Haridwar in Sessions Trial No. 230 of 2009, whereby, learned trial court has found the appellants guilty for offences punishable under Section 304-B and 201 IPC; and sentenced them to undergo rigorous imprisonment for the period of 7-7 years for an offence punishable under Section 304-B IPC and to undergo rigorous imprisonment for a period of 5-5 years and to pay fine of ‘3,000/- each, failing which to further undergo additional imprisonment of three months under Section 201 IPC with the stipulation that both the sentences shall run concurrently. 2. The brief facts of the present case, inter alia, are that PW1 on 23.06.2009 has lodged an FIR with the police station Gangnahar, Roorkee contending therein, that his sister Dilshana got married to Murtaza, appellant herein about two years before therefrom; from the date of marriage, husband and in-laws were harassing Dilshana for bringing less dowry; they have threatened Dilshana to kill her, if she fails to bring motorcycle and Rs. 50,000/- in dowry; on 15.06.2009, PW1 complainant went to see his sister at Rampur, however, her mother-in-law Julekha told him that his sister had gone out with her husband Murtaza and brother-in-law Intzar; on enquiry, PW1 came to know that his sister Dilshana had gone to Kalier, thereafter, PW1 and other family members started searching Dilshana, however, fail to trace her out; on 21.06.2009, her dead body was recovered from the Gangnahar near Asafnagar control; her husband along with his brother and mother has killed the Dilshana for not bringing the sufficient dowry. 3. Before the trial court, PW1 complainant Irshad, PW2 Jameel, PW3 Khalil, PW4 Smt. Mehmudan, PW5 Constable Sanjayram, PW6 Sub-inspector Pratap Singh, PW7 S.P. Arun Mohan Joshi, PW8 Istkhar and PW9 Dr. Manu Jain were examined, having perused material made available before the trial court, learned trial court has passed the order and judgment impugned herein. 4. I have heard Ms. Sheetal Selwal, Advocate holding brief of Ms. Neetu Joshi, Advocate for the appellant Murtaza as well as Mr. Manish Arora, Advocate for the appellant Intzar as well as Mr. M.A. Khan, learned AGA for the State and has carefully perused the record. 5. 4. I have heard Ms. Sheetal Selwal, Advocate holding brief of Ms. Neetu Joshi, Advocate for the appellant Murtaza as well as Mr. Manish Arora, Advocate for the appellant Intzar as well as Mr. M.A. Khan, learned AGA for the State and has carefully perused the record. 5. To bring home the charge punishable under Section 304-B IPC unnatural death within seven years of the marriage and wife was subject to cruelty and harassment in connection with demand of dowry soon before the death must be proved. 6. Keeping in mind, a person may tell lie but circumstances do not, let me proceed to examine the statements of the prosecution witnesses to find out the truth. In the present case, PW3 Khalil, real brother of the deceased Dilshana states that PW1 Irshad, another real brother of the deceased, had informed him on 14-15 June, 2009 that Dilshana went missing from her matrimonial house. PW3 further states, he himself has made search for Dilshana in the houses of other relatives. PW1, Irshad, the informant or PW3 Khalil both real brother of Dilshana have failed to furnish any explanation to the effect as to why missing report was not lodged with the police soon after 14-15 June, 2009 when they came to know that Dilshana went missing from her matrimonial house. In the present case, dead body of the deceased Dilshana was recovered from the Gangnahar near Asafnagar control on 21st June, 2009. Postmortem was conducted on 22nd June, 2009. However, for the first time, report was registered with the police on 23rd June, 2009 saying she was being harassed for bringing less dowry and there was demand of motorcycle and Rs.50,000/- from the side of the appellant and their other family members. In my firm opinion, had there been any demand of dowry as alleged, PW1 and PW3, on coming to know that Dilshana went missing from 14-15 June, 2009 in normal course would have immediately reported the matter to the police saying Dilshana was harassed and treated with cruelty for demand of dowry, therefore, missing might be a result of illegal demand of dowry. No prudent man would have maintained silence from 14-15 June to 23 June when for the first time FIR was lodged. No prudent man would have maintained silence from 14-15 June to 23 June when for the first time FIR was lodged. In my firm opinion, in the absence of any satisfactory explanation for not lodging the missing report at the earliest after 14-15 June, 2009 creates reasonable doubt about the factum of demand of dowry. Not only this, had there been any demand of dowry at least report could have been lodged on 21 June, 2009, itself, soon after the recovery of dead body of Dilshana, which was in fact lodged after more than 48 hours on 23 June, 2009. It also creates reasonable doubt about factum of demand of dowry. 7. Moreover, PW4 Smt. Mehmudan, the mother of the deceased states that husband and in-laws of Dilshana were having no complaint for bringing less dowry initially, rather they were happy with the items given at the time of marriage. PW4 mother further states that she does not know as to why Dilshana was being harassed by her in-laws. 8. In view of the findings recorded herein before, in the firm opinion of this Court, prosecution has failed to prove beyond reasonable doubt that Dilshana was harassed and treated with cruelty for demand of dowry soon before her death. Therefore, sine qua non to 304-B IPC that Dilshana was subjected to harassment and cruelty for demand of dowry soon before her death is missing in the present case. Therefore, in the firm opinion of this Court, prosecution has failed to bring charges at home for an offence punishable under Section 304-B IPC. 9. Moreover, Dead body of Dilshana was recovered from the canal, the place which is not adjacent to matrimonial house of the Dilshana rather distance is more than 10 Kms, therefore, unnatural death cannot be said in the matrimonial house. 10. So far as statement of PW1 is concern that Dilshana was seen in the company of both the appellants near Piran Kalier in the evening of 14 June, 2009 is concerned, it does not help the prosecution, for the simple reason that PW9 Dr. Manu Jain states that postmortem was conducted by him on 22 June, 2009; death could have occurred 4 to 6 days prior to the post mortem. It means death could have taken place between 16 June, 2009 to 18 June, 2009 and not before. Manu Jain states that postmortem was conducted by him on 22 June, 2009; death could have occurred 4 to 6 days prior to the post mortem. It means death could have taken place between 16 June, 2009 to 18 June, 2009 and not before. Otherwise also last seen evidence does not transpire any confidence in view of inordinate delay in reporting the matter to the police. 11. In my considered view prosecution has failed to discharge its burden beyond reasonable doubt, therefore, both the appeals deserve to be allowed, consequently. Judgment and order impugned herein is set aside. Both the appellants stand acquitted. Let the Appellant Murtaza, be released forthwith unless required in any other case. Appellant Intzar is on bail. He needs not to surrender. His personal bond and sureties shall stand discharged. Let a copy of this judgment along with the lower court record be sent back for information.