Research › Search › Judgment

Allahabad High Court · body

2024 DIGILAW 1152 (ALL)

Parveen v. State of Uttar Pradesh

2024-04-29

ASHWANI KUMAR MISHRA, MOHD.AZHAR HUSAIN IDRISI

body2024
JUDGMENT : ASHWANI KUMAR MISHRA, J. 1. These criminal appeals have been filed against the judgment and order dated 21.5.2019 passed by Sessions Judge, Aligarh, in Sessions Trial No. 849 of 2013 arising out of Case Crime No. 636 of 2013 under Sections 498A, 304B, 506 I.P.C. and Section 4 of D.P. Act, Police Station-Kwarsi, District-Aligarh, whereby the accused-appellants Nadeem Khan, Haneef Khan and Smt. Parveen have been convicted and sentenced to life imprisonment under Section 304B I.P.C.; two years rigorous imprisonment and fine of Rs.10,000/-under Section 498A I.P.C. and on failure of deposit of fine to undergo additional imprisonment of one month; six months rigorous imprisonment 506 I.P.C. five years rigorous imprisonment and fine of Rs.10,000/-under Section 4 of D.P. Act and on failure of deposit of fine to undergo additional imprisonment of one month. All punishments are to run concurrently. 2. Informant in the present case is the mother of the victim, who has made a written report to the concerned police station on 3.6.2013 (Ex.Ka.1) stating that her daughter Reena got married about four years back as per shariat laws with Nadeem Khan son of Haneef Khan (accused). She had given adequate dowry in marriage but the husband as well as father-in-law Haneef Khan, mother-in-law Smt. Parveen, Nanand Nazreen, Nandoi Shadab, Kareen and son of maternal uncle of Nadeem were not satisfied and were demanding a hero honda motorcycle and a colour T.V. As the dowry demand was not met the deceased was extended physical and mental cruelty. She was told that unless her parents arrange a hero honda motorcycle as well as colour T.V. and fridge she would be done to death. With great difficulty T.V. and fridge was arranged and given in dowry but the informant could not arrange for the motorcycle. On 2.6.2013 at about 5.00 PM accused persons mercilessly beat the deceased and told her that unless hero honda motorcycle is arranged by tomorrow she would not be spared. On 3.6.2013, at about 12.00 the informant alongwith his younger daughter Shabana visited her house to meet her. When the informant reached the house of the deceased she found that her son-in-law was holding a knife and slit the throat of his wife. Mother-in-law of the deceased Smt. Parveen, father-in-law Haneef Khan, sister-in-law Nazreen and Fareen, nandoi Shadab and son of Nadeem’s maternal uncle Saizi were holding hands, legs and head of the deceased. When the informant reached the house of the deceased she found that her son-in-law was holding a knife and slit the throat of his wife. Mother-in-law of the deceased Smt. Parveen, father-in-law Haneef Khan, sister-in-law Nazreen and Fareen, nandoi Shadab and son of Nadeem’s maternal uncle Saizi were holding hands, legs and head of the deceased. The mother-in-law exhorted that eliminate the deceased by slitting her throat. On raising of alarm by the informant various persons rushed to the spot and the accused persons, fled extending threats. The informant found her daughter dead. It is on this written report that a First Information Report came to be lodged under Sections 498A, 304B, 506 IPC and ¾ Dowry Prohibition Act, 1961 as Case Crime No. 636 of 2013. Investigation proceeded in the matter. Blood stained bed-sheet alongwith piece of bed, plain bedsheet alongwith broken bangles etc. were recovered from the place of occurrence. Accused Nadeem Khan was arrested and on his pointing out a blood stained knife was recovered from below the almirah on the second floor. Accused appellant admitted that with this knife he had committed the offence. The recovery memo of knife has been duly exhibited as Ex.Ka.2. Inquest was conducted on the date of incident at about 4.20 PM in the afternoon. Inquest witnesses opined that deceased had died on account of injuries sustained by her and her postmortem be conducted. It is thereafter that the postmortem has been conducted on the next day i.e. 4.6.2013 at 2.45 PM and following injuries have been found on the deceased: “AMI-1 I.W. 11.5cmx5cmx organ deep on anterior upper part of neck. All structures trachea, oesophagus, bilateral carotid arteries and all other vessels & other vital parts cut.” 3. The investigation ultimately concluded with submission of charge-sheet under Section 498A, 304B, 506 IPC and ¾ of Dowry Prohibition Act, 1961 against accused Nadeem and her parents Haneef Khan and Smt. Parveen wife of Haneef Khan. Charge-sheet under Section 498A, 304B, 506 IPC and ¾ of Dowry Prohibition Act, 1961 was also submitted against accused Saizi, Mohd. Shadab and Smt. Nazreen. Charge-sheet was also submitted against accused Nadeem under Section 4/25 of the Arms Act in Case Crime No. 641 of 2013 after blood stained knife was recovered on his pointing out. Charges were framed against the accused appellants under Section 498A, 304B, 506 IPC and ¾ of Dowry Prohibition Act, 1961. Shadab and Smt. Nazreen. Charge-sheet was also submitted against accused Nadeem under Section 4/25 of the Arms Act in Case Crime No. 641 of 2013 after blood stained knife was recovered on his pointing out. Charges were framed against the accused appellants under Section 498A, 304B, 506 IPC and ¾ of Dowry Prohibition Act, 1961. Alternate charge was framed under Section 302/34 IPC. Charges were read out to the accused, who denied the allegation and demanded trial. 4. Prosecution in order to prove its case has produced following documentary evidence: “1. FIR dated 3.6.2013 as Ex.Ka.3A 2. Written Report dated 3.6.2013 as Ex.Ka.1 3. Written Report dated 3.6.2013 as Ex.Ka.6 4. Recover memo of plain & blood stained blanket & wood of takht & pieces of bangles dated 3.6.2013 5. Recovery memo of murder weapon a chhuri dated 4.6.2013 as Ex.Ka.2 6. P.M. Report dated 4.6.2013 as Ex.Ka.2 7. Panchayatnama dated 3.6.2013 as Ex.Ka.5 8. Charge-sheet dated 3.8.2013 as Ex.Ka.3 9. Charge-sheet dated 23.4.2014 as Ex.Ka.4 10. Charge-sheet dated 5.6.2013 as Ex.Ka.1” 5. In addition to the above the prosecution has adduced oral testimony of Smt. Naseema Begum (informant as PW-1), Smt. Shabana (daughter of informant as PW-2), Investigating Officer Sansar Singh as PW-3, Dr. Manoj Kumar Srivastava, who conducted autopsy has been produced as PW-4. Statement of accused were recorded under Section 313 Cr.P.C. wherein, they have denied their implication and not admitted the evidence produced against them during trial. Accused has claimed that his marriage was love marriage and the deceased had affair with other persons and he was out in connection with work and when he returned he found his wife dead. He also handed over the knife to police and he has been falsely implicated for the offence under the Arms Act. 6. The prosecution has placed reliance on the oral testimony of two witnesses of fact. They are the mother and sister of the deceased. Mother is the first informant, who has supported the prosecution case, as per which her daughter was being harassed for dowry and since the demand in that regard was not met, therefore, she was being physically assaulted also. On 2.6.2013 also the deceased was beaten and told to get a motorcycle or else she would be done to death. Mother is the first informant, who has supported the prosecution case, as per which her daughter was being harassed for dowry and since the demand in that regard was not met, therefore, she was being physically assaulted also. On 2.6.2013 also the deceased was beaten and told to get a motorcycle or else she would be done to death. When the informant came to the house of deceased on the next day alongwith PW-2, she saw that accused Nadeem was holding a knife in his hand; her father-in-law was holding her head; sister-in-law Nazreen and Fareen were holding her hands; Parveen, mother of the accused, exhorted to kill the deceased, whereafter the accused slit the throat of her daughter. Nazreen is the sister of Nadeem and her husband Shadab were living with their in-laws in the house of the accused. In the cross-examination PW-1 has stated that marriage of her daughter got solemnized four years prior to the incident. She made no written complaint with regard to demand of dowry against the in-laws and husband of the deceased. On the date prior to incident also, the deceased was physically assaulted. In her further cross-examination, she has stated that on arriving at the door witnessed the gruesome act of slitting the throat of her daughter. She shouted and tried to save her daughter but failed. She had no knowledge as to how many knife blows were made by the accused. She also did not remember how many persons had come at the spot. Her daughter used to work in different houses. The house that has been constructed at Jeevangarh by PW-1 was with the help of everyone. She has denied the suggestion that the deceased was demanding share in the house at Jeevangarh due to which she was eliminated. Dowry articles were returned to her in the presence of witnesses on 5.10.2014. Though she claimed that she purchased TV and Fridge about four months prior to the incident but she had no receipts etc. In her further cross-examination PW-1 has admitted that she heard commotion at the house of the deceased and had gone, on her own, to ascertain the well-being of her daughter. Some boy had opened the door from inside, as soon as she knocked the door. 7. PW-2 Shabana is the sister of the deceased. She has also supported the prosecution case. Some boy had opened the door from inside, as soon as she knocked the door. 7. PW-2 Shabana is the sister of the deceased. She has also supported the prosecution case. She heard abuses and noise coming from the house of the accused Nadeem at about 12.00 in the afternoon; Nadeem and his father Haneef do not live in the house; They go out for work; there are four rooms in the house of accused. Deceased Reena was residing on the upper floor. Her in-laws lived on the ground floor. Accused and his parents used to work and live separately. Deceased used to sell Chhole. She reached within 10 minutes of hearing the commotion. By the time she reached the house of accused, her sister had already died. She has also stated that her sister was harassed for dowry and that she saw the accused slitting the throat of the deceased. 8. PW-4 Dr. Manoj Kumar Srivastava was the Autopsy Surgeon, who has proved the postmortem report. The cause of death was shock and excessive bleeding from the cut injury of the neck of the deceased. He has specifically stated that there existed no other mark of injury on the body of the deceased. He has ruled out the possibility of deceased having been assaulted on 2.6.2013. He found no signs on the body of the deceased of accused persons tightly holding her hand and feet etc. He has stated that the incident could have occurred at about 5.00 or quarter to 5.00 in the morning on 6.5.2013. He has also stated that the incident could have occurred while the deceased was sleeping. 9. Other prosecution witnesses namely Sansar Singh (PW-3), Sujan Singh (PW-5), Raj Kumar (PW-6) and Premnath (PW-7) are formal witnesses. PW-3 is the Investigating Officer. When he arrived at the place of occurrence no case was registered by then. He has admitted that he had not arrested the accused but he himself came to the police station. PW-7 has found that there were tenants living in the house of the accused at the time of incident. He also found that the knife recovered had no sharp edges. PW-6 has admitted that recovered knife was not sent for scientific examination to FSL. 10. PW-7 has found that there were tenants living in the house of the accused at the time of incident. He also found that the knife recovered had no sharp edges. PW-6 has admitted that recovered knife was not sent for scientific examination to FSL. 10. The accused Nadeem Khan in his statement under Section 313 Cr.P.C. has stated that he was not at home at the time of incident and had gone out for work. He has alleged that deceased had relations with multiple persons and when he returned home he found that his wife’s throat was slit. He himself came to the police station and also gave the knife lying at the spot and he has been falsely implicated. 11. Defence has produced DW-2, who has stated that the accused Nadeem had gone out for work at the time when the incident occurred. 12. We have heard Sri Abhishek Mayank, learned counsel for the appellants and learned AGA for the State and have perused the material brought on record, including the trial court records. 13. In the facts of the present case, we find that marriage of the deceased had occurred within 7 years of the incident. The mother of the deceased (PW-1) has specifically stated that the marriage occurred 4 years prior to the incident. There is no contra-evidence on this regard. No suggestion has been given to the prosecution witnesses doubting the time of marriage. From the evidence on record, it is, therefore, amply clear that the deceased has died within 7 years of marriage. 14. On the other aspect relating to demand of dowry, we find that the two prosecution witnesses of fact are specific in saying that there was a demand of dowry soon before the death of the deceased. PW-1 and PW-2, both, have stated that there was a demand of dowry of a motorcycle and the alleged cause of death was the fact that such demand of dowry was not met. The second condition for attracting the offence under Section 304-B IPC is also met. The third condition of proving the offence under Section 304-B IPC is that the death of deceased is unnatural. The cause of death of the deceased is shock and excessive bleeding on account of antemortem injury. It is, therefore, quite apparent that the death of deceased Reena was homicidal and thus unnatural. The third condition of proving the offence under Section 304-B IPC is that the death of deceased is unnatural. The cause of death of the deceased is shock and excessive bleeding on account of antemortem injury. It is, therefore, quite apparent that the death of deceased Reena was homicidal and thus unnatural. The death otherwise has occurred within the matrimonial house. From the facts that have been brought on record, it is, therefore, clear that all the conditions for an offence under Section 304-B IPC are clearly established by the prosecution. The conviction of accused appellant Nadeem Khan, in the facts and circumstances of the case under Section 304-B IPC, is clearly established. 15. According to the prosecution witnesses of fact, they have seen the incident with their own eyes. PW-1 and PW-2, both, are consistent in implicating the accused appellants of committing the offence of murder. Specific roles have been assigned to the three accused. Accused Nadeem Khan, who is the husband of the deceased, has been given the role of slitting the throat of the deceased; Haneef Khan, who is the father-in-law, has been assigned the role of holding the head of the deceased, while Smt. Parveen exhorted the accused Nadeem Khan to slit the throat of the deceased. Graphic description has been given by the two witnesses of fact suggesting that they were present at the place of occurrence and have witnessed. Learned counsel for the appellants, however, submits that the prosecution witnesses of fact are not reliable and in fact they have not seen the incident at all. In support of such contention he submits that it would be wholly improbable that all the family members would join together in causing the solitary injury on the neck of the deceased. 16. On this aspect of the matter, the evidence needs careful examination. PW-1 is the mother of the deceased. While supporting the prosecution version she has stated that a day prior to the incident the deceased was physically assaulted for dowry and she was told to get a motorcycle or else she will be done to death. This part of her version is supported by PW-2 also. However, we find from the testimony of PW-4 (Autopsy Surgeon) that there were no marks of injury on the deceased suggesting that she was physically assaulted a day earlier. This part of her version is supported by PW-2 also. However, we find from the testimony of PW-4 (Autopsy Surgeon) that there were no marks of injury on the deceased suggesting that she was physically assaulted a day earlier. A specific question was put to the doctor, and in reply he categorically stated that there are no such marks of injury. PW-1 and PW-2 have also stated that when they came to the house of the deceased at about 12.00 in the afternoon and they saw that the father-in-law had held the head of the deceased. Other relatives were holding the hands of the deceased and the accused Nadeem was holding a knife and in their presence accused Parveen (mother-in-law) exhorted to kill the deceased, whereafter accused Nadeem slit her throat. The graphic description, which is given by the two witnesses of fact specifically assigns role in the offence to all family members and gives indication that all the accused persons were waiting for the witnesses to arrive, so that they may commit the offence in their presence. On this aspect, it is worth noticing that PW-4 has opined that he found no signs of tight holding of the hand, feet and other body parts of the deceased, in order to facilitate Nadeem Khan to slit his wife’s throat. The evidence otherwise shows that PW-2 had come to the house of the deceased only half an hour back and there was no reason for her to return again within half an hour. No fight or abnormality was reported by PW-2 when she came to the house of deceased half an hour earlier. The incident otherwise occurred at 12.00 in the afternoon and it was informed to police on the RT Set and the police arrived at 12.30. Till such time there is no evidence that all these persons were actually present at the place of occurrence or that they reported the incident to the police. It is at 2.00 O’clock in the afternoon that GD entry was made in respect of the incident. It has also come in evidence that accused himself came to the police station and had not fled from the spot. It has also come in evidence that there were tenants in the house but no independent person has come forward to support the prosecution case. 17. It has also come in evidence that accused himself came to the police station and had not fled from the spot. It has also come in evidence that there were tenants in the house but no independent person has come forward to support the prosecution case. 17. From the testimony of PW-1 and PW-2, it transpires that when they entered the house, there was no resistance offered in opening of the door. In the event an incident of the kind, as is suggested by the prosecution, was about to take place, it would be difficult to conceive that the accused persons would allow anyone so easily to come from outside and witness the incident. PW-1 has admitted that as soon as she knocked the door, it was opened from inside. PW-2 on the one hand has stated that she saw the incident but in the same breath has stated that when she entered the house by then the deceased has already died. 18. Upon evaluation of the testimony of witnesses, we do not find the statement of PW-1 and PW-2 to be entirely reliable for the following reasons: (i) It is unnatural and improbable that all family members would hold one body part or the other of deceased for the accused Nadeem to commit the offence. As a sequel it would be unnatural that all the accused would wait for the witnesses and only when they enter the house that the accused persons commit the offence. (ii) The medical report does not support the prosecution version that other accused persons had held the deceased by their hands and feet etc., inasmuch as there are no signs of forcible holding of hands, feet and head of the deceased, in the testimony of PW-4. There are no marks of injury on the deceased suggesting that she was assaulted a day before. (iii) Incident was reported to the police on RT Set and the police arrived at 12.30 in the afternoon, whereas the FIR was lodged at 2.00 pm, and therefore, consultation and deliberation in lodging the report cannot be ruled out, particularly when the witnesses of fact are illiterate persons and were dependent upon the police personnel to scribe the written report. (iv) None of the accused persons fled from the spot and the husband Nadeem came to the police station on his own. (iv) None of the accused persons fled from the spot and the husband Nadeem came to the police station on his own. (v) The offence 4/25 of the Arms Act in respect of recovery of knife has not been proved. (vi) There were tenants residing in the same house, but except mother and sister of the deceased, no other independent person has come forward to support the prosecution case. (vii) Although PW-1 and PW-2 were present and the incident occurred before them but no attempt was made to save the deceased and there are no signs of struggle by these two witnesses nor there are any marks of struggle on the body of deceased, which also creates a doubt on the prosecution case. (viii) As per the Autopsy Surgeon, the incident may have occurred early in the morning, and therefore, the possibility of the deceased’s throat having been slit while she was sleeping cannot be ruled out. This is particularly so, as no other injury on the body of the deceased is found which shows that there was no resistance offered by her prior to her death. This supports the hypothesis that deceased was done to death earlier and the offence has not occurred in the manner suggested by the two prosecution witnesses. 19. Analysis of the evidence, therefore, persuades us to doubt the credibility of the two prosecution witnesses of fact, namely PW-1 and PW-2 regarding the manner in which the offence is alleged to have been committed. We also find that PW-2 has clearly stated that accused Nadeem alongwith deceased were living on the upper floor while the in-laws of the deceased resided on the ground floor. There were tenants also in the house. PW-1 has clearly admitted that Nadeem and her parents had separate living and had no common kitchen etc. Although we are not impressed by the prosecution evidence regarding the manner in which the offence got committed but it remains undisputed that deceased has met an unnatural death within 7 years of marriage and there was demand of dowry soon before her death. In such view of the matter, necessary ingredients to make out an offence under Section 304-B IPC is made out against the accused Nadeem Khan. 20. In such view of the matter, necessary ingredients to make out an offence under Section 304-B IPC is made out against the accused Nadeem Khan. 20. So far as the accused Haneef Khan and Smt. Parveen are concerned, it is apparent that they were living on the ground floor, while deceased was living at the first floor. Prosecution witnesses have admitted that they had separate living. The presumption in law with regard to dowry death would, thus, not be attracted to the two accused Haneef Khan and Smt. Parveen, as admittedly they had a separate living and the portion of the house where they lived was separate and distinct. The dead body was found on the upper floor where the deceased was living with accused Nadeem. The presumption of dowry death would be restricted only to accused Nadeem, and the accused appellants Haneef Khan and Smt. Parveen are entitled to benefit of doubt and they are, accordingly, acquitted. The judgment and order of the trial court, to this aspect is reversed. 21. Coming to the quantum of sentence in respect of accused Nadeem, we find that the accused had himself come to the police station and had neither fled from the spot, nor the prosecution has succeeded in establishing the manner in which deceased was done to death and, therefore, we do not subscribe to the view that the accused deserved extreme punishment of life. The trial court while sentencing him to life has not given any reason as to why maximum punishment alone would meet the ends of justice and that lesser punishment would not suffice. 22. Coming to the question of sentence, we find that the trial court has awarded life sentence to the accused appellant under Section 304-B IPC. Punishment under Section 304-B IPC varies from 7 years to life. When the court proceeds to award maximum permissible sentence for an offence, it is the cardinal principle of law that reasons have to be given for awarding such maximum punishment. We do not find any such reasons to have been disclosed by the trial court. We otherwise find that there are no circumstances, which may justify awarding of extreme punishment to the accused appellant in the facts of the present case. We do not find any such reasons to have been disclosed by the trial court. We otherwise find that there are no circumstances, which may justify awarding of extreme punishment to the accused appellant in the facts of the present case. Considering the evidence in its entirety, we are of the view that punishment of life under Section 304-B IPC to the accused appellant Nadeem Khan is not warranted, and ends of justice would be met if the minimum punishment of 7 years is awarded to the accused appellant under Section 304-B IPC. To that extent we modify the judgment and order of the court below. 23. Since the accused appellant Nadeem Khan has already remained in jail for more than eight years, as such his sentence is modified and he is released on the sentence already undergone by him. The appellant Nadeem Khan is set to liberty on the sentence already undergone, subject to observance of Section 437A Cr.P.C. provided he is not wanted in any other case. Criminal Appeal No. 4842 of 2019, consequently, succeeds and is allowed in part. 24. Criminal Appeal No. 4838 of 2019, accordingly, succeeds and is allowed. The judgment and order dated 21.5.2019 passed by Sessions Judge, Aligarh, in Sessions Trial No. 849 of 2013 arising out of Case Crime No. 636 of 2013 against accused appellants Smt. Parveen and Haneef Khan is set aside. Accused appellant Smt. Parveen is reported to be on bail, as such her bail bonds stands discharged. The appellant Haneef Khan is set to liberty, subject to observance of Section 437A Cr.P.C. provided he is not wanted in any other case.