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2018 DIGILAW 172 (ALL)

ISLAM ALI v. STATE OF U. P.

2018-01-19

RAJUL BHARGAVA

body2018
JUDGMENT : Hon'ble Rajul Bhargava,J. (1) Heard Sri Nazrul Islam Jafri and Sri Neeraj Sharma, learned counsels for the appellants, Dr. Akhilesh Kumar Sharma, learned counsel for the complainant, learned A.G.A. for the State and perused the record. (2) Since both these criminal appals have been filed by respective appellants arise out of the same judgment and order dated 18.3.2017 passed by Additional District & Sessions Judge-VII District Bijnor, in Sessions Trial Nos.813 of 2011 & 505 of 2015 (State of U.P. Vs. Islam Ali and another & State of U.P. Vs. Tariq Ali) arising out of Case Crime No.403 of 2011, under Sections 498A, 307/34 IPC & Dowry Prohibition Act, P.S. Najibaba District Bijnor, whereby appellants (in Criminal Appeal No.1463 of 2017) Dr. Islam Ali & Dr. Tariq have been convicted for the offence under Section 307 read with section 34 IPC is seven years rigorous imprisonment with fine of Rs.10,000/- each, under Section 498A IPC is two years rigorous imprisonment with fine of Rs.2,000/- each, for the offence under Section 4 of Dowry Prohibition Act is six months imprisonment with fine of Rs.2000/- each, and in the eventuality of not paying the fine, the appellants shall undergo further simple imprisonment for six months each. In connected Criminal Appeal No.1576 of 2017 the appellants namely Bushra Ali, Ayesha Islam and Nadeem alias Zahid Ali convicting and sentencing under Section 498A IPC for rigorous imprisonment for two years with fine of Rs.2,000/- each, under Section 323 IPC for six months rigorous imprisonment and under Section 4 of Dowry Prohibition Act to undergo further rigorous imprisonment of six smonths with fine of Rs.2,000/- in respect of appellant no.3 and in respect of appellant nos.1 and 2 to undergo rigorous imprisonment of two years with fine of Rs.2000/- each and under Section 4 of Dowry Prohibition Act to undergo further rigorous imprisonment of six months each and with fine of Rs.2000/- each and to undergo simple imprisonment of three months in default of not paying the fine. (3) In brief, the prosecution case as narrated in the first information report lodged by P.W.1 Fariduddin that he had married his daughter appellant no.1 with Dr. Tariq Ali on 17.2.2008 as per Muslims rites and customs. He had given sufficient dowry at the time of marriage and has also paid cash in the marriage. (3) In brief, the prosecution case as narrated in the first information report lodged by P.W.1 Fariduddin that he had married his daughter appellant no.1 with Dr. Tariq Ali on 17.2.2008 as per Muslims rites and customs. He had given sufficient dowry at the time of marriage and has also paid cash in the marriage. However, her husband and in-laws were not satisfied with dowry and were making an additional demand of Rs. Fifteen lakhs on account of which she was mentally and physically tortured. Her husband Tariq also used to assault her and create pressure to bring Rs. Fifteen lakh from her father. It is further averred that the ill treatment and torture continued for several months, ultimately on 17.7.2011 at about 10 A.M. her husband Tariq, father Islam Ali and other family members came to the house of first informant and assured him that they will mend their ways and will not commit any torture on his daughter. The first informant sent his daughter and grand daughter with the accused with them, in the way after stopping the Car the accused who had come to fetch assaulted her badly and she was thrown out of the Car. It is further stated that the appellant Tariq in order to murder her fired by Tamancha. In the said incident P.W.2 Eram Fatema sustained injuries. Her medical report and X-Ray report have been proved by the prosecution and have been exhibited. (4) After investigation charge sheet was submitted against the appellant and four others. However, the trial Court extended benefit of doubt to other accused and convicted the appellants vide impugned judgment and order as noted above. (5) Prosecution in order to prove its case examined eight witnesses out of which P.W.1 Dr. Fariduddin is the first informant, P.W.2 Eram Fatema is the victim and injured in the present case, P.W.3 Karamveer alias Dharamveer is an independent person who had witnessed and assault launched by accused. P.W.4 Dr. Sanjeev Gupta has proved the injury of Eram Fatema who was examined by him on 17.7.2011 at 8.15 P.M. It is pertinent to mention here that one of the injury was caused by firearm. Rest of the witnesses examined by prosecution witnesses are formal in nature and it is not necessary to discuss their evidence. P.W.4 Dr. Sanjeev Gupta has proved the injury of Eram Fatema who was examined by him on 17.7.2011 at 8.15 P.M. It is pertinent to mention here that one of the injury was caused by firearm. Rest of the witnesses examined by prosecution witnesses are formal in nature and it is not necessary to discuss their evidence. (6) At the very outset, I may record that the appellants have not challenged the impugned judgment and order by which the appellants have been convicted on merits. Learned counsels for the appellants have stated that in view of the fact that due to intervention of responsible persons of the society and family friends, the appellants and the first informant as well as the victim P.W.2 have entered into a compromise. In this behalf a supplementary affidavit filed by appellant Bushra Ali in Criminal Appeal No.1463 of 2017 annexing therewith the deed of compromise filed along with an application before the Court of Judicial Magistrate 1st Class, Najibabad District Bijnor in Case No.174 of 2017, under Section 12 of the Domestic Violence Act. The said compromise deed stipulates that she has entered into a compromise with Dr. Tariq Ali appellant no.2 her husband and he has paid two drafts for a sum of Rs.22 lakhs and the same has been handed over to Dr. Eram Fatema towards past, present and future maintenance of the minor daughter and the injured who is also a practising Doctor. It also mentioned that all the pending litigations will be decided in its totality before all the Courts and also before the Hon'ble Court. (7) Learned counsel for the informant and the victim Sri A.K. Sharma has not disputed the fact that the parties have arrived at a compromise and appellant no.2 has paid a lump sum amount as agreed upon by way of two demand drafts which have been handed over and accepted by the victim Eram Fatema. It is further stated that he has instruction on the instructions of his client that in case the appeal is allowed in terms of the compromise deed in view of the law laid down by the Apex Court, he will have no objection. Learned counsel for the appellants have placed reliance on the judgment of this Court in Ghan Shyam Dubey and another Vs. Learned counsel for the appellants have placed reliance on the judgment of this Court in Ghan Shyam Dubey and another Vs. State of U.P. and others, reported in 2016 (94) ACC 793 in which this Court after placing reliance on the judgment of the Apex Court rendered in Gyan Singh Vs. State of U.P., reported in 2012 (10) SCC 303 , B.S. Joshi and others Vs. State of Haryana and others 203 (4) SCC 65 and Madan Mohan Abbot Vs. State of Punjab reported in 2008(4) SCC 582 , held that in view of the aforesaid judgments of the Apex Court it is clear that in the interest of justice even the non compoundable offences which is predominantly as in the present case have arisen out of matrimonial disputes relating to dowry etc. and in the event the offender and the victim have settled all their disputes between them irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power to quash the criminal proceedings, the first information report and even allow the appeal against conviction in terms of the compromise, I need to emphasise that it is perhaps advisable as in the case of present appeal the dispute involved between the appellants in the connected appeal and the victim are purely of personal nature. In view of it, I accept the terms of compromise even in the instant appeal where the appellants have been convicted under Section 307 IPC and have been sentenced to undergo seven years rigorous imprisonment and some of the appellants have been convicted for offence under Section 498A IPC et al. (8) Keeping in view the fact, that the parties have put to an end all their disputes by means of compromise settlement it does not appear just and proper to keep the instant connected appeal pending. (9) Considering the totality of the circumstances and in the interest of justice, the conviction and sentence awarded to appellants, Dr. Islam Ali and Dr. Tariq Ali (Criminal Appeal No.1463 of 2017) & in the connected Criminal Appeal No.1576 of 2017 conviction and sentence awarded to the appellants viz. Bushra Ali, Ayesha Islam and Nadeem @ Zahid Ali, deserves to be set aside. Islam Ali and Dr. Tariq Ali (Criminal Appeal No.1463 of 2017) & in the connected Criminal Appeal No.1576 of 2017 conviction and sentence awarded to the appellants viz. Bushra Ali, Ayesha Islam and Nadeem @ Zahid Ali, deserves to be set aside. Accordingly, both the connected criminal appeals filed by the aforesaid appellants against their conviction is hereby allowed and the impugned judgment and order of the trial Court dated 18.3.2017 is hereby set aside. In Criminal Appeal No.1576 of 2017, appellants Bushra Ali, Ayesha Islam, Nadeem @ Zahid Ali and Dr Islam Ali in Criminal Appeal No.1463 of 2017 are on bail. Their personal and surety bonds are discharged. They need nor surrender to serve out the sentence. However, in Criminal Appeal No.1463 of 2017, appellant no.1 Dr. Islam Ali was granted bail by this Court vide order dated 24.3.2017. He need not surrender to serve out the sentence. The appellant no.2 Dr. Tariq Ali is in jail since 18.3.2017. He shall be released forthwith unless waned in any other offence. Let a copy of this order be communicated to the Court concerned forthwith for compliance.