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Allahabad High Court · body

2020 DIGILAW 616 (ALL)

Jamshed Khan v. State of U. P.

2020-02-26

RAM KRISHNA GAUTAM

body2020
JUDGMENT : 1. This Criminal Revision, under Section 397/401 of Code of Criminal Procedure, 1973 (Hereinafter, in short, referred to as ‘Cr.P.C.’), has been filed by the revisionist, Jamshed Khan, against the order, dated 1.6.2019, passed by the learned Additional Sessions Judge, Fast Track, court no.2, Hapur, in Sessions Trial No. 332 of 2018, State vs. Shoaib and others, arising out of Case Crime No.302 of 2018, under Sections 498- A and 304-B of Indian Penal Code, 1860 (Hereinafter, in short, referred to as ‘IPC’), read with 3/4 of Dowry Prohibition Act, Police Station-Dhaulana, District-Hapur. 2. Learned counsel for revisionist argued that the first information report of Case Crime No. 302 of 2018 was got lodged, at Police Station-Dhaulana, District Hapur, for offences, punishable, under Sections 498A and 304B of IPC, read with Sections 3/4 of Dowry Prohibition Act, upon a report of the revisionist, Jamshed Khan, against Shoaib, husband, Aslam, father-in-law, Smt. Nazrin, mother-in-law, Parvez, brother-in-law, Gulbej @ Kalu, brother-in-law and Smt. Gullo, sister-in-law, with this contention that informant’s daughter, Mumtaz was married with Shoaib and another daughter was married with Salman, and sufficient dowry was given, but, in-laws of his daughter, Mumtaz, were not satisfied with it. Husband, Shoaib, father-in-law, Aslam, Mother-in-law, Smt. Nazrin, brothers-in-law, Parvez and Gulbej @ Kalu, and sister-in- law, Smt. Gullo, wife of Parvez, were persistently demanding an Alto Car, with Rupees Two Lakhs, in cash, as additional dowry, for which cruelty is being done with her. On 13.4.2018, at about 6.00 PM, Shoaib, his mother and father, along with his two brothers, named as above, and one sister-in-law, also named in the first information report, assaulted Mumtaz and they, under joint mens-rea, poured kerosene oil over her body and set her at ablaze. This was a death, owing to demand of dowry and cruelty with regard to it. Informant’s other daughter, Muskan, who was present at the place of occurrence, has tried to intervene, but, she, too was extended of repeating same occurrence with her. Hence, she informed informant, who rushed at the spot, along with other family members and other villagers, where, he found his daughter, Mumtaz, in burn and miserable condition. He, along with other persons, took her to Safdarjang Hospital, at Delhi, for her treatment, but, she died at 5.00 AM of 15.6.2018. Report of the incident was submitted. 3. Hence, she informed informant, who rushed at the spot, along with other family members and other villagers, where, he found his daughter, Mumtaz, in burn and miserable condition. He, along with other persons, took her to Safdarjang Hospital, at Delhi, for her treatment, but, she died at 5.00 AM of 15.6.2018. Report of the incident was submitted. 3. This contention was there, in the statement, recorded, under Section 161 of Cr.P.C., as of informant, his daughter, Mumtaz and his wife, but, charge sheet was filed against Shoaib, husband and Aslam, father-in-law, only, and other accused persons, who have been named in the first information report, were not charge sheeted. 4. During trial, informant, as PW-1, his daughter, as PW-2 and his wife as PW-3, have reiterated same contentions in their statements, recorded before the Trial court. Hence, an application, under Section 319 of Cr.P.C., was filed with a prayer for summoning those leftover accused persons, but, it was rejected by the impugned order. 5. The ground for rejection of the application, moved, under Section 319 of Cr.P.C., was held to be of dying declaration, recorded by the deceased. Even, if this dying declaration is being accepted, offence, for demand of dowry and cruelty with regard to it, is made out and this Court, at this stage, is not to make analytic analysis of evidence on the basis of which existence of a prima facie case is to be seen and the argument regarding statement in dying declaration is to be appreciated at later stage and not at this stage. Hence, Trial court has failed to appreciate facts and law placed before it and, thereby, failed to exercise jurisdiction vested in it, and as such, this Criminal Revision, with above prayer, has been preferred, challenging impugned order. 6. Learned counsel for Opposite party no.2, on the other hand, while vehemently opposing arguments advanced by learned counsel for revisionist, has contended that it was deceased, who, in her dying declaration, has categorically narrated scene and sequence of occurrence, wherein, an altercation took placed, in between the deceased and her husband, Shoaib, regarding giving of some lower (a kind of Trouser) to Shoaib, which she asked to be made available subsequently to the husband, after his taking bath. This furiated her husband and he, with the assistance of his father, put the deceased ablaze, after pouring kerosene over her. This furiated her husband and he, with the assistance of his father, put the deceased ablaze, after pouring kerosene over her. Hence, role of causing death to the deceased was assigned specifically to the deceased's husband and father-in-law. No contention, against any other family member is there and this dying declaration is fully admissible. Summoning at the stage of 319 of Cr.P.C., never requires a prima facie case, only, rather, it requires much more than initial summoning and in present case not even a single iota of evidence is there against prospective accused persons. Deceased was instantly taken to the hospital by her husband and his cousin and neither the informant nor any other family members of informant were accompanying deceased. She was given treatment at the hospital. This report was got lodged after two days of occurrence and in between no accusation was levelled by the revisionist or any of his family members, including Muskan. This subsequent accusation is under ulterior motive. Hence, learned Trial court has rightly appreciated facts and law placed before it and, thereby, rightly passed impugned order, in accordance with law. This Criminal Revision, challenging the order passed by the learned Trial court, being devoid of merits, is liable to be dismissed. 7. Learned AGA, representing State of U.P., has also vehmently opposed this Revision. 8. First information report reveals that occurrence was of 13.6.2018, but, report was got lodged on 15.6.2018 and in this report it has been stated that Muskan was an eye witness account, but this eye witness, Muskan, has never made any complaint before this registration of this very case crime number. As per the contention of this report, neither informant nor his wife, was present at the place of occurrence. Whatever, he could perceive, it was on the basis of the information given by Muskan and Muskan has not lodged any complaint, prior to registration of this report. Her testimony is with this contention that she too was subjected to demand of dowry, but, her husband was in her favour, whereas, husband of the deceased was not favouring her. 9. Meaning thereby, accusation of demand of dowry and cruelty with regard to it was against the husband of the deceased and her father-in-law. Her testimony is with this contention that she too was subjected to demand of dowry, but, her husband was in her favour, whereas, husband of the deceased was not favouring her. 9. Meaning thereby, accusation of demand of dowry and cruelty with regard to it was against the husband of the deceased and her father-in-law. This fact is there in the dying declaration, recorded by the Magistrate, under supervision and Medical Certificate of the Medical Officer, wherein, no such statement or accusation against prospective accused persons was there. Mere contention and guilt, written in dying declaration, is against her husband and father-in-law. General allegation of demand of dowry and cruelty with regard to it and that, too, in this delayed report, by the informant, was there. Apex Court, in the case of Hardeep Singh vs. State of Punjab and others, reported in (2014) 3 Supreme Court Cases, 92 rendered by Constitution Bench, has elaborately discussed and laid down law, for allowing and rejecting application, moved, under Section 319 of Cr.P.C., wherein, it has been held that at the time of passing an order over an application, moved, under Section 319 of Cr.P.C., much more than initial summoning is required. Evidence is to be appreciated at this stage because on the basis of evidence, recorded, before the Trial court, this application has been moved. Hence, at that juncture, evidence is to be appreciated by the Trial court and learned Trial court has appreciated evidence led before it. Neither evidence of informant nor of his wife, PW-1 and PW-3, was of any avail because they were not present on the spot and testimony of PW-2 of this fact is that those in-laws, firstly, beaten and injured the deceased, then after, she has been put at ablaze in which she succumbed due to above injuries during treatment, but, in autopsy examination report, there is no anti-mortem injury, except burn injuries. Hence, contention of Muskan, PW-2, is not supported by the autopsy examination report. Therefore, on the basis of law laid down, by the Apex Court, in the case of Hardeep Singh (Supra), as above, as well as discussed by the Trial court in its impugned order, facts and law placed before it, have been rightly appreciated by the Trial court and, thereby, Application, moved, under Section 319 of Cr.P.C., has been rightly rejected. Therefore, on the basis of law laid down, by the Apex Court, in the case of Hardeep Singh (Supra), as above, as well as discussed by the Trial court in its impugned order, facts and law placed before it, have been rightly appreciated by the Trial court and, thereby, Application, moved, under Section 319 of Cr.P.C., has been rightly rejected. There is no failure in exercise of jurisdiction vested in Trial court or over-exercise of jurisdiction, vested in it, nor there is any apparent error on the face of impugned order. Accordingly, in view of what has been discussed, hereinabove, this Criminal Revision, being devoid of merits, deserves dismissal and it stands dismissed as such.