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2021 DIGILAW 229 (ALL)

Lal Mohammad v. State of U. P.

2021-02-08

SUBHASH CHAND

body2021
JUDGMENT : Subhash Chand, J. The instant appeal filed on behalf of accused-appellant under Section 374(2) Cr.P.C. is directed against the judgment and orders dated 27.01.2018 passed by Shri Ram Narayan,, the then Additional Sessions Judge/FTC, Court Room No. 03, Bulandshahr in Sessions Trial No. 519 of 2016 (State vs. Lal Mohammad and others), whereby the appellants have been convicted and sentenced as follows: Appellant-Lal Mohammad 304-B IPC Ten years rigorous imprisonment. 498-A IPC Two years, five months rigorous imprisonment with fine of Rs.5000 and in default of payment of fine one year additional R.I. 4 D.P. Act Two years rigorous imprisonment with fine of Rs.2000/- and in default of payment of fine two months additional RI. Appellants-Yasin Khan, Smt. Jannat & Safi Khan 498-A IPC Two years, five months rigorous imprisonment with fine of Rs.5000 each and in default of payment of fine one year additional R.I. 4 D.P. Act Two years rigorous imprisonment with fine of Rs.2000/- and in default of payment of fine two months additional RI. 1. In the present appeal facts of the prosecution case may be summarized as under : 2. That the informant Maksood gave a written information to the police station concerned with these allegations that his daughter Imrana was married with Lal Mohammad three years back in accordance with the Muslim Rites and Rituals. The inmates of in-laws were not happy with dowry endowed at the time of marriage and for the same reason his daughter was subjected to cruelty by the husband Lal Mohammad, Yasin Khan (father-in-law), Jannat Khan (mother-in-law), Safi Khan (jeth) and Amina (Nand). Rs.50,000/-in cash, one Golden Lar and one Golden Ring were demanded in additional dowry; in regard to the same his daughter had informed on phone on 14.05.2016. The nephew of the informant Naim went to the in-laws house of his daughter to bring her to the parental house. The in-laws of her daughter has refused to send Imrana along with his nephew unless and until the demand of alleged dowry was not fulfilled. His nephew came back to his village on the very day at 6 O'clock his daughter was killed by setting her ablaze having poured kerosene oil. The information of the same was received by the informant through chaukidar of village Yakoobpur on 15.05.2016 at 7 O'clock of morning from mobile no. 9761344472. His nephew came back to his village on the very day at 6 O'clock his daughter was killed by setting her ablaze having poured kerosene oil. The information of the same was received by the informant through chaukidar of village Yakoobpur on 15.05.2016 at 7 O'clock of morning from mobile no. 9761344472. The informant reached to the village Yakoobpur and found his daughter dead. On this written information the case crime no.169 of 2016 was registered under Sections 498-A, 304-B IPC and section 3/4 D.P. Act against the accused persons. 3. The Investigating Officer after having concluded the investigation filed charge-sheet against all the appellants except Km. Amina to the court of Magistrate concerned, who took cognizance on the charge-sheet and committed the case to the court of Sessions for trial. 4. The trial court framed charges against all the accused persons under sections 302/34 IPC and 3/4 D.P. Act and alternate charge under Section 304-B IPC was also framed. All the accused persons denied the charges and claimed to be tried. 5. On behalf of prosecution to prove the charge against the accused in documentary evidence filed written information Ext. Ka-1, postmortem report of the deceased Imrana Ext. Ka-2, check FIR ext. Ka-3, GD entry ext. Ka-4, site plan of the place of occurrence Ext. Ka-5, charge-sheet Ext. Ka-6, inquest report Ext. Ka-7, police form no.13 Ext. Ka-8, photo nash Ext. Ka-9, specimen seal Ext. Ka-10 and letter to CMO Ext. Ka-11. 6. In oral evidence examined P.W.1 Maksood (informant), P.W. Naim, P.W.3 Ummed Singh (Chaukidar of the village), P.W.4 Dr. Jahid Ali Tyagi, P.W.5 C.P. Anand Kumar, P.W.6 Investigating Officer Rajni and P.W.7 Man Singh (Tehsildar). 7. The statement of accused persons under Section 313 Cr.P.C. were recorded, who denied the incriminating circumstances in the evidence against them and stated that Imrana died due to burn injuries while cooking food and no defence evidence was produced. 8. The trial court after hearing learned counsel for both the sides convicted the accused-appellant Lal Mohd. 7. The statement of accused persons under Section 313 Cr.P.C. were recorded, who denied the incriminating circumstances in the evidence against them and stated that Imrana died due to burn injuries while cooking food and no defence evidence was produced. 8. The trial court after hearing learned counsel for both the sides convicted the accused-appellant Lal Mohd. for the offences under sections 498A, 304-B IPC and Section 4 D.P. Act and acquitted from the charge under Section 302 IPC and section 3 D.P. Act, while accused-appellants Yasin Khan, Jannat Khan and Safi Khan were convicted for the offences under Sections 498-A IPC and 4 D.P. Act and further acquitted them from the charge under Section 304-B IPC, 302 IPC and section 3 D.P. Act. 9. Aggrieved from the impugned judgment the present criminal appeal has been preferred on behalf of all the four convicts on the ground that the conviction and sentence of the appellants is illegal, arbitrary and against the provisions of law. The learned trial court has failed to appreciate evidence properly. There is material contradictions in the statement of prosecution witnesses. The prosecution has failed to prove its case beyond all reasonable doubts. The conviction and sentence passed by the trial court is to severe, which is against the weight of evidence on record. 10. Heard Sri Hinchh Lal Pandey, learned counsel for the appellants, learned A.G.A. for the State-Respondent and perused the lower court record. 11. On behalf of prosecution to prove the charges against the appellants in oral evidence have been examined P.W.1 Maksood, who is father of the deceased. P.W.2 Naim, who is the nephew of the informant. P.W.3 Ummed Singh (chaukidar of the village). 12. P.W.1 Maksood in his testimony has deposed that his daughter was married with Lal Mohammad three years ago from the date of occurrence. Her husband Lal Mohd., father-in-law Yasin Khan, mother-in-law Jannat, Jeth Safi Khan, Nand Amina, all were not happy with dowry demand given at the time of marriage and an additional demand of Rs.50,000/-, one golden Lar and one golden ring were made. For non-fulfillment of the same his daughter was subjected to cruelty. His daughter made complaint of the same to him and his other family members. For non-fulfillment of the same his daughter was subjected to cruelty. His daughter made complaint of the same to him and his other family members. Eight days before from the date of occurrence, his daughter has informed him that she was being tortured from the aforesaid demand, therefore, on 14.05.2016 the informant sent his nephew Naim (P.W.2) to bring his daughter from in-laws house but the members of in-laws house refused to send her and on the very day at 6 O'clock by evening his daughter was killed by setting her ablaze after having poured kerosene and information of the same was received by him by P.W.3 Ummed Singh (Chaukidar of the village) on 15.05.2016 at 7 O'clock of morning, accordingly he reached to the in-laws house of his daughter and found her dead. This witness stated that the demand of dowry was made by the members of in-laws house after 6-7 months of marriage. He further stated that people of the village told him that his daughter has been killed after having poured kerosene and setting her ablaze. None of the members of in-laws were present at the house when he reached to their house. His daughter was lying dead. 13. P.W.2 Naim, who is nephew of the informant, also narrated the same kind of statement as of P.W.1 Maksood and also stated that on 14.05.2016 he went to the in-laws house of Imrana to bring her to parental house but all the inmates of her in-laws house refused to send her without fulfillment of demand of additional dowry. He further deposed that on receiving information in regard to the death of Imrana, he also accompanied his uncle Maksood and on reaching to the in-laws house of Imrana, none of the inmates were present there and Imrana was found dead. 14. P.W.3 Ummed Singh (chaukidar of village Yakoobpur) in his testimony deposed that he informed to the informant Maksood in regard to the death of Imrana due to burn injuries being chaukidar of the village. He did not see the occurrence from his own eyes. He cannot say that under what circumstances Imrana received burn injuries, whether she set her ablaze while cooking food or she was set ablaze by pouring kerosene oil by her in-laws but the fact is that he had heard in the village that Imrana received burn injuries while cooking food. 15. He cannot say that under what circumstances Imrana received burn injuries, whether she set her ablaze while cooking food or she was set ablaze by pouring kerosene oil by her in-laws but the fact is that he had heard in the village that Imrana received burn injuries while cooking food. 15. From the statement of witnesses of fact, this fact is well proved that the death of Imrana was unnatural within seven years of marriage in her matrimonial house and there is also an evidence that additional demand of dowry was also made i.e. Rs.50,000/-, golden Lar, and one golden Ring and on non-fulfillment of the same she was subjected to cruelty soon before her death. 16. P.W.4 Dr. Jahid Ali Tyagi, has proved the postmortem report of deceased as Ext. Ka-2 and this witness stated that cause of death was shock as a result of ante mortem burn injuries and ante mortem burn injuries is as follows: AMI-Superficial to deep burn injury present all over body except head and neck, face right upper arm (sic) right breast and inner part of both thigh, both sole, line of redness present. ON exploration Larynx and Trachea found congested. Soot particle present in trachea. 17. P.W.7 Man Singh (Tehsildar), has also proved the inquest report and papers relating to the inquest, as per opinion of he witnesses of inquest cause of death was due to burn injuries. The deceased was 70% burnt. 18. As such the ocular evidence is also corroborated with the medical evidence and inquest evidence. So far as the smell of kerosene oil was not coming from the dead body as per autopsy report is concerned, the same is not material. After all the death of deceased was unnatural due to burn injuries. 19. From evidence on record it is established that all the appellants/convicts were present at the time of occurrence in the matrimonial house of deceased where the offence is committed in secrecy inside the house, the direct evidence or independent evidence of the same is not possible. It is the inmates of the house to explain how the unnatural death was caused. From the evidence on record it is also proved that dowry death was caused. 20. Hon'ble Apex Court held in Tarsem Singh Vs. It is the inmates of the house to explain how the unnatural death was caused. From the evidence on record it is also proved that dowry death was caused. 20. Hon'ble Apex Court held in Tarsem Singh Vs. State of Punjab, AIR 2009 SC 1454 the following essentials for presumption of dowry death:- (i) The unnatural death was committed of a woman within 7 years of marriage. (ii) The woman was subjected to cruelty or harassment by the husband or relatives of the husband soon before her death. (iii) The cruelty or harassment was in connection with any demand of dowry. Hon'ble Apex Court held in Sher Singh alias Pratap Vs. State of Haryana, AIR 2015 SC 980 soon before death not to be interpreted in terms of days, month, or years. But demand of dowry should not be stale. It should be continuing cause of death under Section 304-B of IPC. The Hon'ble Apex Court held in Ashok Kumar Vs. State of Haryana, AIR 2010 at 2839 SC. The husband or relative will be deemed to have committed offence under Section 304-B of IPC if the ingredients of he offence have been satisfied by deemed fiction of law. 21. The prosecution has been successful to prove the case of dowry death beyond reasonable doubt. The burden of proof shifts upon the accused persons to rebut the presumption under Section 113-B of Evidence Act. 22. The Hon'ble Supreme Court held in Criminal Appeal No. 590 of 2015 [Jayanti Lal Vs. Stat of Madhya Pradesh (now Chhatisgarh)] vide judgment dated 19.11.2020 that the incident had taken place inside the privacy of the house and onus was on the person residing in the house to give the explanation. It is difficult for the prosecution to lead any direct evidence to establish the guilt of the accused. Initially burden to prove the case would upon the prosecution, it would of relatively light character. There would be corresponding burden upon inmates of the house to give cogent explanation how the crime was committed. The cannot get away keeping quiet. 23. On behalf of appellants/convicts defence has been taken in the statement under Section 313 Cr.P.C. that the deceased Imrana while cooking food caught fire and sustained burn injuries. This suggestion was also given to all the prosecution witnesses on behalf of defence counsel. The cannot get away keeping quiet. 23. On behalf of appellants/convicts defence has been taken in the statement under Section 313 Cr.P.C. that the deceased Imrana while cooking food caught fire and sustained burn injuries. This suggestion was also given to all the prosecution witnesses on behalf of defence counsel. If this fact is taken to be true none of the persons of in-laws house, who were present at the time of occurrence, made any effort to save Imrana. It is also noteworthy that in statement of witnesses, this fact came into light that the oven (Chulha) was in the yard over which thatched roof, there was no sign of burning on any article kept in the house, even thatched roof could not catch fire. 24. Moreover, when P.W.1 (informant) Maksood and P.W.2 Naim, both reached to the in-laws house of Imrana on receiving the information in regard to the occurrence none of the members of in-laws were present there; this conduct of all the members of in-laws house not making any effort to extinguish the fire and also not rushing to the Imrana to the hospital after having caught fire and also to be not present at the in-laws house leaving alone the dead body of Imrana at the house is unnatural conduct of the appellant/convicts is relevant under Section 8 of the Evidence Act which also supports the prosecution story that the appellants are the perpetrator of the crime. 25. Learned counsel for the defence plea was raised that P.W.3 Ummed Singh (Chaukidar) has also stated that sister-in-law (Devrani of the deceased) has made effort to save her life and her finger scorched and death of Imrana was accidental due to catching of fire while cooking food. The statement of P.W.3 Ummed Singh cannot be relied upon since this witness has also stated that he was not present at the place of occurrence because he did not see the occurrence from his own eyes. He came to know about the incident from the villagers that Imrana died due to burn injuries while cooking food, as such, to this extent the statement of this witness being hearsay cannot be relied upon. He came to know about the incident from the villagers that Imrana died due to burn injuries while cooking food, as such, to this extent the statement of this witness being hearsay cannot be relied upon. The best defence witness i.e. Devrani of deceased, who also belonged to the in-laws family was not adduced in evidence to rebut the presumption of dowry death and to prove the defence that the death of Imrana was accidental. 26. Therefore, the appellants/convicts have failed to rebut the presumption under Section 113-B of Evidence Act against them, as such the judgment of trial court in regard to conviction and sentence passed against the appellants bears no infirmity. The Hon'ble Apex Court held in Jagdish Chand Vs. State of Haryana, AIR 2019 SC 457 where all the ingredients of drawing presumption under Section 304-B of IPC are established. No defence evidence to rebut the presumption under Section 113-B of Evidence Act. Conviction is proper. 27. In view of above, I do not find any substance in the arguments advanced on behalf of the appellants. The appeal is bereft of merit and deserves to be dismissed. 28. Accordingly, the criminal appeal is dismissed. The conviction and sentence awarded by the trial court vide judgment and order dated 27.01.2018 is hereby affirmed. The appellant no.1-Lal Mohammad, is in jail. He shall serve out the remaining sentence as has been awarded by the trial court vide judgment and order dated 27.01.2018. The appellants no.2, 3 and 4, namely, Yasin Khan, Smt. Jannat and Safi Khan, are on bail. Their bail bonds are hereby cancelled and they are directed to surrender before the court concerned from where they shall be sent to jail to serve out the remaining sentence as has been awarded by the trial court vide judgment and order dated 27.01.2018. Office is directed to communicate this order to the court concerned forthwith to ensure compliance and further send back the lower court record.