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2018 DIGILAW 465 (ALL)

STATE OF U. P. v. NAZAR ALI

2018-02-21

ANIL KUMAR, ANIL KUMAR SRIVASTAVA II

body2018
JUDGMENT : 1. Heard learned A.G.A. and perused the record. 2. By means of the present application under Section 378(3) Cr.P.C., State has sought leave to appeal against the judgment and order dated 31.10.2011 passed by Additional Sessions Judge, Court no.1 Lakhimpur Kheri in Sessions Trial No.843 of 2004 (State of U.P. Vs. Nazar Ali and others) arising out of Case Crime no.166 of 2004 under Sections 498A, 304 B IPC and 3/4 of the Dowry Prohibition Act, Police Station Dhaurhara District Lakhimpur Kheri whereby learned Additional Sessions Judge has acquitted the accused- respondents from the offence mentioned above. 3. According to prosecution version, on the basis of report submitted by the complainant Shan Mohammad to Superintendent of Police, Lakhimpurt an F.I.R. was lodged on 18.5.2005 on 21.10 p.m. at police station Dhaurhara by Shan Mohammad, father of the deceased inter alia stating therein that her daughter Moshima Bano has committed suicide on 24.4.2004 due to demand of dowry from the side of accused respondents. 4. On 29.4.2004, the complainant/Shan Mohammad moved an application to the Superintendent of Police, Lakhimpur Kheri stating therein that the accused Nazar Ali, his father Akbar Ali and mother Pachcho were demanding motorcycle, buffalo and a pair of ox in dowry. One ox was given to them but they were not satisfied and continuing to torture the deceased for demand of dowry. On 22.4.2004 they threatened if demand of dowry is not made out they would kill the daughter of complainant. On the basis of this information, a case under sections 498A and 304B IPC was registered against the accused. 5. An inquest proceedings of the dead body was conducted on 25.4.2004 and the postmortem was also conducted on 25.4.2004 wherein cause of death was shown asphyxia as a result of hanging. Investigation was conducted. After investigation, a charge-sheet was submitted against the accused under sections 498A, 304 B IPC and 3/4 of the Dowry Prohibition Act. 6. Accused were charged under sections 498A, 304 B IPC and 3/4 of the Dowry Prohibition Act but denied the charges and claimed trial. 7. In order to proved his case prosecution has produced Shan Mohammad (P.W-1) complainant and father of the deceased, Kharunnisha (P.W.-2) mother of the deceased, Dr. 6. Accused were charged under sections 498A, 304 B IPC and 3/4 of the Dowry Prohibition Act but denied the charges and claimed trial. 7. In order to proved his case prosecution has produced Shan Mohammad (P.W-1) complainant and father of the deceased, Kharunnisha (P.W.-2) mother of the deceased, Dr. Ramesh Singh (P.W.-3) who has conducted postmortem of the body of the deceased, S.I. Babu Ram Pandey (P.W.-4) who has conducted the inquest proceedings and Basant Lal (P.W.-5) Circle Officer/Investigating Officer. 8. A written statement was submitted by accused Nazar Ali under section 233(2) Cr.P.C. stating therein that he was married with deceased in the year 1995, eight years before the date of incident. Nazar Ali is living separately from his brother and parents. Since his house is located at the extreme corner of the village so for safety reasons deceased has kept her silver ornaments weighing about 2 Kg. to his father's house. When the marriage of her younger sister was settled, deceased asked his father to hand over her jewelery but he evaded the request on which some hot discussions were made between deceased and her father and she was humiliated by her father. Due to this behavior deceased came to her in laws' house and committed suicide. 9. Learned A.G.A. while pressing the application for leave to appeal , submits that even if the provisions as provided under sections 498A, 304 B IPC and 3/4 of the Dowry Prohibition Act have not been established on the ground that marriage of deceased Moshima Bano was solemnized with Nazar Ahmad more than eight years prior to her death even than looking into the facts of the case and evidence, other material on record the offence under section 306 IPC is made out. 10. In this regard, learned A.G.A. further submits that from the statements of Shan Mohammad (P.W-1)/complainant and Kharunnisha (P.W.-2) it transpires that due to demand of dowry from the side of accused respondents, her daughter Moshima Bano has committed suicide. In the case of Narwinder Singh Vs. State of Punjab (2011) 2 SCC 47 it has been held "In the present case, both the trial court and the High Court have held that the deceased had committed suicide. Therefore, the nature of the offence under Sections 304-B and 306 IPC are not distinct and different categories. In the case of Narwinder Singh Vs. State of Punjab (2011) 2 SCC 47 it has been held "In the present case, both the trial court and the High Court have held that the deceased had committed suicide. Therefore, the nature of the offence under Sections 304-B and 306 IPC are not distinct and different categories. Again in the case of Shamnsaheb M. Multtani (2001) 2 SCC 577 , this court observed: "18. So when a person is charged with an offence under Sections 302 and 498-A IPC on the allegation that he caused the death of a bride after subjecting her to harassment with a demand for dowry, within a period of 7 years of marriage, a situation may arise, as in this case, that the offence of murder is not established as against the accused. Nonetheless, all other ingredients necessary for the offence under Section 304-B IPC would stand established. Can the accused be convicted in such a case for the offence under Section 304-B IPC without the said offence forming part of the charge? 19. A two-Judge Bench of this Court (K. Jayachandra Reddy and G.N. Ray, JJ.) has held in Lakhjit Singh v. State of Punjab 1994 Supp (1) SCC 173 that if a prosecution failed to establish the offence under Section 302 IPC, which alone was included in the charge, but if the offence under Section 306 IPC was made out in the evidence it is permissible for the court to convict the accused of the latter offence. 20. But without reference to the above decision, another two-Judge Bench of this Court (M.K. Mukherjee and S.P. Kurdukar,JJ.) has held in Sangaraboina Sreenu v. State of A.P. (1997) 5 SCC 348 that it is impermissible to do so. The rationale advanced by the Bench for the above position is this: "It is true that Section 222 CrPC entitles a court to convict a person of an offence which is minor in comparison to the one for which he is tried but Section 306 IPC cannot be said to be a minor offence in relation to an offence under Section 302 IPC within the meaning of Section 222 CrPC for the two offences are of distinct and different categories. While the basic constituent of an offence under Section 302 IPC is homicidal death, those of Section 306 IPC are suicidal death and abetment thereof." 21. While the basic constituent of an offence under Section 302 IPC is homicidal death, those of Section 306 IPC are suicidal death and abetment thereof." 21. The crux of the matter is this: Would there be occasion for a failure of justice by adopting such a course as to convict an accused of the offence under Section 304-B IPC when all the ingredients necessary for the said offence have come out in evidence, although he was not charged with the said offence? In this context a reference to Section 464(1) of the Code is apposite: "464. (1) No finding, sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby". 22. In other words, a conviction would be valid even if there is any omission or irregularity in the charge, provided it did not occasion a failure of justice. 23. We often hear about "failure of justice" and quite often the submission in a criminal court is accentuated with the said expression. Perhaps it is too pliable or facile an expression which could be fitted in any situation of a case. The expression "failure of justice" would appear, sometimes, as an etymological chameleon (the simile is borrowed from Lord Diplock in Town Investments Ltd. v. Deptt. of the Environment 1978 AC 359 ). The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage." 11. We are of the considered opinion that the aforesaid observations do not apply to the facts of the present case. 12. The High Court upon meticulous scrutiny of the entire evidence on record rightly concluded that there was no evidence to indicate the commission of offence under Section 304-B IPC. It was also observed that the deceased had committed suicide due to harassment meted out to her by the appellant but there was no evidence on record to suggest that such harassment or cruelty was made in connection to any dowry demands. It was also observed that the deceased had committed suicide due to harassment meted out to her by the appellant but there was no evidence on record to suggest that such harassment or cruelty was made in connection to any dowry demands. Thus, cruelty or harassment sans any dowry demands which drives the wife to commit suicide attracts the offence of 'abetment of suicide' under Section 306 IPC and not Section 304-B IPC which defines the offence and punishment for 'dowry death'. 13. It is a settled proposition of law that mere omission or defect in framing charge would not disable the Court from convicting the accused for the offence which has been found to be proved on the basis of the evidence on record. In such circumstances, the matter would fall within the purview of Section 221 (1) and (2) of the Cr.P.C." 14. Accordingly, it is submitted by learned A.G.A. that matter needs reconsideration and leave to appeal may be granted in the present case. 15. We have heard learned A.G.A. and gone through the material available on record. 16. In the instant matter, learned trial court, on the basis of material evidence on record, came to the conclusion that marriage between deceased- Maushima Bano and Nazar Ahmad was solemnized more than eight years from the date of incident and has passed judgment of acquittal on the ground that provisions of sections 498A, 304 B IPC and 3/4 of the Dowry Prohibition Act are not attracted. 17. So far as the argument raised by learned A.G.A. while pressing the leave to appeal is concerned, even if the mandatory requirement of Sections 498A, 304 B IPC and 3/4 of the Dowry Prohibition Act is not established and the necessary ingredients are not fulfilled in the present case, the accused respondents should have been convicted by the trial court under section 306 IPC. In support of his arguments, learned A.G.A. has placed reliance on statements of Shan Mohammad (P.W-1) and Kharunnisha (P.W.-2). 18. We have carefully gone through the statements given by Shan Mohammad (P.W-1) complainant and Kharunnisha (P.W.-2). 19. Shan Mohammad (P.W-1) in his statement has categorically stated that prior to one day of the incident deceased came to matrimonial house in the morning and was returned back from there in the evening. 18. We have carefully gone through the statements given by Shan Mohammad (P.W-1) complainant and Kharunnisha (P.W.-2). 19. Shan Mohammad (P.W-1) in his statement has categorically stated that prior to one day of the incident deceased came to matrimonial house in the morning and was returned back from there in the evening. He has also stated that her husband and her in- laws were harassing her daughter for want of dowry. 20. Further, Kharunnisha (P.W.-2) in her statement stated that deceased came to matrimonial house prior to two days of her death and after staying some time she was returned back from her house. However, in the statement, she has not stated that there was any demand of dowry from the side of accused respondents. 21. Accordingly, learned trial court after taking into consideration the statements given by Shan Mohammad (P.W-1) and Kharunnisha (P.W.-2) came to the conclusion that there are major contradictions in the statements of P.W.-1 and P.W.-2 in respect of demand of dowry and acquitted the accused. 22. Now, we have to see whether on the basis of statement given by Shan Mohammad (P.W-1) and Kharunnisha (P.W.-2), Section 306 IPC are attracted in the present case or not? 23. Section 306 IPC reads as under:- "306.Abetment of suicide- If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years , and shall also be liable to fine." 24. Bare reading of section 306, the position which emerge out is to the effect that there should be abetment to a person who has committed suicide. 25. In the present case from the material available on record specially the evidence of Shan Mohammad (P.W-1) and Kharunnisha (P.W.-2) it transpires that there is no act of abetment from the side of accused respondents which resulted in committing suicide by the deceased. Even from the material on record the position emerges out that when father and mother of the deceased reached her house where the deceased has committed suicide the accused respondents were present and from their gesture or act it cannot borne out that their conduct was such to infer that deceased has committed suicide due to their abetment. Even from the material on record the position emerges out that when father and mother of the deceased reached her house where the deceased has committed suicide the accused respondents were present and from their gesture or act it cannot borne out that their conduct was such to infer that deceased has committed suicide due to their abetment. In addition to said fact when inquest report was prepared , father of the deceased was present and he has not raised any objection. 26. In the light of above said facts point is to be considered as per law laid down by Hon'ble the Supreme Court in the case of Narwinder Singh (supra) if the offense under Sections 498A, 304 B IPC and 3/4 of the Dowry Prohibition Act is not made out then the offense under section 306 IPC can be made out if there has been no failure of justice in convicting the accused respondents under section 306 IPC. 27. In the present case, as stated herein above, from the material on record, we do not find that there is any failure of justice on the part of trial court in not convicting the accused respondents for the offence under Sections 498A, 304 B IPC and 3/4 of the Dowry Prohibition Act. The judgment cited by learned A.G.A. in support of her case rendered by Hon'ble the Supreme Court in Narwinder Singh (Supra) is not applicable in the present case as such she cannot derive any benefit in the instant matter. 28. Keeping in view the above said facts as well as the fact that an appeal against the acquittal stands on a different footing from the appeal against the conviction. Hon'ble the Apex Court in a very recent judgment in the case of Sadhu Saran Singh Vs. State of Uttar Pradesh and Others reported in (2016) 4 SCC 357 has considered this difference and has observed in paragraph nos.20 and 21 as under: "20. Generally, an appeal against acquittal has always been altogether on a different pedestal from that of an appeal against conviction. In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate court would interfere with the order of acquittal only when there is perversity of fact and law. Generally, an appeal against acquittal has always been altogether on a different pedestal from that of an appeal against conviction. In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate court would interfere with the order of acquittal only when there is perversity of fact and law. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can raise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. This Court, while enunciating the principles with regard to the scope of powers of the appellate court in an appeal against acquittal, in Sambasiva V. State of Kerala 1998 SCC (Cri) 1320 has held: "7. The principles with regard to the scope of the powers of the appellate court in an appeal against acquittal, are well settled. The powers of the appellate court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible the appellate court cannot substitute its view in the place of that of the trial court. It is only when the approach of the trial in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the appellate court can interfere with the order of acquittal." 21. The Court, in several cases, has taken the consistent view that the appellate court, while dealing with an appeal against acquittal, has no absolute restriction in law to review and relook the entire evidence on which the order of acquittal is founded. If the appellate court, on scrutiny, finds that the decision of the court below is based on erroneous views and against settled position of law, then the interference of the appellate court with such an order is imperative." 29. In the light of the aforesaid guidelines, the impugned judgement has to be considered from the point of view whether the view taken by the trial court was a probable view based on the material on record or it is an absolutely erroneous judgement devoid of merits. 30. In the light of the aforesaid guidelines, the impugned judgement has to be considered from the point of view whether the view taken by the trial court was a probable view based on the material on record or it is an absolutely erroneous judgement devoid of merits. 30. A criminal trial proceeds with the presumption of innocence of the accused persons. With the acquittal of the accused persons this presumption of innocence stands fort6ified. So very strong and cogent reasons must exist in interfering the judgment of acquittal. 31. Accordingly, we are of the considered view that the view taken by the trial court was a probable and logical view, which is based on valid reasons. The judgment of the trial court cannot be said to be illegal, illogical and improbable and not based on material on record. So, we are satisfied that there is absolutely no hope of success in this appeal and accordingly, no interference is called for. 32. Hence, the prayer for granted of leave to appeal is hereby rejected.