Reserved on 07.08.2018 Delivered on 23.08.2018
Court No. 47
Case :- CRIMINAL APPEAL No. - 2595 of 2004 Appellant :- Mehboob Alam & Others Respondent :- State Of U.P.
Counsel for Appellant : -Tripathi B.G. Bhai, Chandrakesh Mishra, D.S. Mishra, D.S. Tripathi, G. Kumar, Ghanshyam Dubey, Lav Srivastava, V.P. Srivastava, Dharmendra Kumar Singh Counsel for Respondent :- Government Advocate
Hon'ble Ram Surat Ram (Maurya),J. Hon'ble Umesh Chandra Tripathi,J.
[ Delivered by Ram Surat Ram ( Maurya),J.]
1. Heard Sri Dharmendra Kumar Singh, for the appellants and Sri Rajesh Kumar Mishra, Brief Holder, for State of U.P.
2. Mehboob Alam, Smt. Hafiza @ Bitta and Sajida @ Wahida (the appellants) have filed this appeal, from their conviction and sentence passed by Additional Session's Judge/Fast Track Court No. 1, Siddharth Nagar, dated 21.04.2004, in S.T. No. 194 of 2002, State vs. Mehboob Alam and others (arising out of Case Crime No. 284 of 2002, under Section 498-A, 304-B IPC and Section 3/4 of Dowry Prohibition Act, 1961, P.S. Etwa, district Siddharth Nagar), convicting them under Section 498-A, 302, 304-B IPC and Section 4 of Dowry Prohibition Act, 1961 and awarding sentence of three years rigorous imprisonment with fine of Rs. 5000/- each under Section 498-A IPC, imprisonment for life with fine of Rs. 5,000/- each under Section 302 IPC, imprisonment for life under Section 304-B IPC, two years rigorous imprisonment with fine of Rs. 2,000/- each under Section 4 of Dowry Prohibition Act, 1961, along with default stipulation.
3. On the complaint (Ex-Ka-1) of Abdul Haee (PW-1), Constable Clerk Ram Kishan Yadav (PW-8) registered FIR (Ex-Ka-9) of Case Crime No. 284 of 2002, under Section 498-A, 304-B IPC and Section 3/4 of Dowry Prohibition Act, 1961, at P.S. Etwa, district Siddharth Nagar, on 14.05.2002 at 00:30 hours against Mehboob Alam, Smt. Hafiza @ Bitta and Sajida @ Wahida. It has been stated in the complaint that Haseena Khatoon, daughter of the informant was married to Mehboob Alam 4-1/2 years ago. At the time of marriage, the informant has given much more dowry than his capacity. But mother-in-law of his daughter, namely Hafiza @ Bitta, her elder daughter Shajida and his son-in-law Mehboob Alam were demanding one motor cycle and one gold chain and due to not fulfillment of their demand they used to assault his daughter usually. As and when his daughter came to his house, she used to inform about the demand of dowry and torture by her in-laws to her. Due to social respect, he used to send back, pacifying his daughter. From her marital relation, his daughter had one daughter Jainab Khatoon aged about one year. About eight months ago, they had ousted his daughter, after assault from their house. He and his well wishers and relations, any how send back his daughter with his son-in-law, pacifying her. After her coming to the house of in-laws, at that time, whenever he had visited their house, they did not permit him to meet his daughter, assuring him that every thing was all right. He understood that she was living happily and there was nothing unusual. On 13.05.2002 at 8:00 PM, Haseem, resident of village Pakari Nandlal, who was also in his relation, came to his house and informed that his daughter had died. On this information, he along with Sadiq Ali son of Rasool Bux, Abdul Khaliq son of Majeebulla, Tahabbar Ali son of Jamin Ali and various other residents of his village came to village Pakari Nandlal, where Hafiza @ Bitta, his samdhin met and informed that his daughter along with her daughter committed suicide by burning them inside dehari (clay pot used for keeping grains). When they looked into dehari, then found the dead bodies of his daughter Haseena Khatoon aged about 25 years and grand daughter Jainab aged about three years, in it. His son-in-law and Sajida, sister-in-law (nanad) of the deceased were absconding from their house. In the village they heard that at about 3:00 PM on 13.05.2002, all the three accused badly assaulted his daughter and thereafter put them into dehari forcibly and set fire in it after poring oil upon them. Sadiq Ali, Abdul Khatoon and other villagers were watching the dead bodies on the spot.
4. After registration of FIR, CO Bhuwneshwar Ram (PW-6) started investigation. He copied the FIR in case diary and recorded statement of the Constable Clerk and the informant. Police Station informed Deputy Collector for conducting Inquest of the deceased. On which Tahsildar Dumariyaganj, Om Prakash Tripathi (PW-7) conducted Inquest (Ex-Ka- 2) of the dead body of Haseena Khatoon on 14.05.2002 between 9:30 AM to 10:30 AM and Inquest (Ex-Ka-2-A) of the dead body of Jainab Khatoon on 14.05.2002 between 10:35 AM to 11:20 AM. At that time dead bodies were found in dehari in burnt condition and after breaking the dehari it were brought out. Investigating Officer prepared site-plan (Ex-Ka-5). He took into possession of blood stained bed sheet and half burnt clothes and prepared its recovery memo (Ex-Ka-6). One kerosene oil container and match box was also found on spot and he prepared its recovery memo (Ex-Ka-7). After obtaining postmortem report, he inserted Section 302 and 201 IPC. After arrest of the accused Mehboob Alam, he tried to recover the knife used for committing crime but it could not be recovered. After completion of investigation, he submitted charge sheet (Ex-Ka-8) on which cognizance was taken.
5. Dr. Raj Kumar (PW-5) conducted autopsy of the dead body of Haseena Khatoon on 14.05.2002 at 03:45 PM and prepared postmortem report (Ex-Ka-3), in which following ante-mortem injuries were noted:-
(i) The complete body is burnt. The burn is superficial and deep in nature.
(ii) About 100% burn.
(iii) The small and large intestines and uterus is coming out from the abdominal wall.
(iv) The scalp hair are burnt. The head, neck, face, chest, abdomen and the back is burnt. The burn is deep in nature.
(v) Both legs and arms are burnt in complete length. The burn is deep in nature.
(vi) The uterus and its attachments are coming out from the broken abdominal wall. The uterus is containing female fetus about 7 months old.
(vii) The Hyoid Bone is fractured.
(viii) The burn is postmortem.
In internal examination, rigor mortis present in both the hands land legs. Blood stained fluid is coming out from both the nostrils, mouth and ear. Stomach empty. Liquid and gases present in the small intestine. Fecal matter and gases present in large intestine. Weight of Gall Bladder 800 gm. Weight of Spleen 130 gm. Weight of Kidneys 110 gm. each. Bladder empty. Uterus is 7 month pregnant. The time of death is about one day old. In the opinion of the doctor, cause of death "asphyxia due to throttling and after the death, the body was burnt".
6. Dr. Raj Kumar (PW-5) conducted autopsy of the dead body of Jainab Khatoon on 14.05.2002 at 04:15 PM and prepared postmortem report (Ex-Ka-4), in which following ante-mortem injuries were noted:-
(i) Incised wound 8.5 cm x 2.5 cm bone deep at the anterior surface of the neck, 3.5 cm above the medial end of right clavical.
(ii) The trachea is cut down.
(iii) The oesaphagus is cut down.
(iv) All the large vessels are cut down.
(v) A lacerated wound 8.5 cm. x 3.5 cm x peritoneum deep is present at the right lower pelvic region, 2.5 cm above the Iliac crest.
(vi) From the opening of Injury No. 5, small intestine and posterior parts of the large intestine, is coming out.
(vii) The body is about 60% burnt. The burn is postmortem in nature.
(viii) The face, head and neck is deep burn.
(ix) The chest, iliac, abdomen and the pelvic region is burnt, the burn is deep in nature.
(x) Both the palms and sole is burnt, both the upper and lower limbs is burnt.
In internal examination, rigor mortis present in both the hands land legs. Blood stained fluid is coming out from both the nostrils, mouth and ear. Semi solid food and gases present in Stomach. Liquid and gases present in the small intestine. Fecal matter and gases present in large intestine. Weight of Gall Bladder 600 gm. Weight of Spleen 80 gm. Weight of Kidneys 70 gm. each. Bladder empty. The time of death is about one day old. In the opinion of the doctor, cause of death "massive blood and massive tissue injury and shock. The burn is post mortem in nature".
7. On committal, the case was registered as S.T. No. 194 of 2002. Session's Judge framed charges on 21.10.2002 against the appellants. The appellants denied the charges and claimed trial. In order to prove the charges the prosecution examined Abdul Haee (PW-1), the informant and father of the deceased Haseena Khatoon, Ramjan (PW-2), Tahbbar Ali (PW-3) and Satish Chandra Pandey (PW-4) to prove that the marriage of the deceased took place 4-5 years ago and there was demand of one motorcycle and a gold chain as dowry from the in-laws; Dr. Raj Kumar (PW-5) to prove postmortem reports of Haseena Khatoon and Jainab; Bhuneshwar Ram (PW-6) Investigating Officer and Om Prakash Tripathi (PW-7), to prove Inquest reports and Constable Ram Kishan Yadav (PW-8), to prove check F.I.R.
8. All the incriminating materials and evidence were to put to the accused under Section 313 Cr.P.C. They denied the facts and evidence and has stated that marriage of Mehboob Alam and Haseena Khatoon had taken place about ten years ago from the date of incident. At the time of incident they were not present on the spot. Chinku @ Raj Kumar, the tractor driver of Abdul Haee had come to their house. He wanted to take Haseena Khatoon forcibly to which she did not agree. Therefore, he had committed murder of Haseena Khatoon and Jainab Khatoon and burnt their dead bodies. In defence they examined Dr. R.P. Mishra, Medical Officer (DW-1) to prove that he had examined Mehboob Alam on 11.05.2002, who was suffering from vomiting and diarrhea; Mohd. Ayub Khan (DW-2) and Salim Ahmad (DW-3) to prove that marriage had taken place 10 years ago and there was no demand of dowry. Chinku @ Raj Kumar, the tractor driver of Abdul Haee used to come to the house of the accused. He had heard that at about 1:30 P.M. to 2:00 P.M. Chinku @ Raj Kumar had murdered Haseena Khatoon and Jainab Khatoon and burnt their bodies. At that time accused were not present there.
9. Session's Judge, after hearing the parties, by judgment dated 21.04.2004 held that Haseena Khatoon was married to Mehboob Alam on 26.03.1997. Non examination of scribe of the complaint (Ex-Ka-1) has no effect on the prosecution case. From the statement of the witnesses, demand of one motorcycle and a gold chain as dowry is proved. From the postmortem reports, it is proved that Haseena Khatoon was murdered by throttling and Jainab Khatoon was murdered by causing knife injuries and thereafter they were burnt. The dead body of Haseena Khatoon and Jainab Khatoon were found in dehri in the house of the accused of which the accused had no explanation. The defence witnesses could not prove that Chinku @ Raj Kumar had murdered Haseena Khatoon and Jainab Khatoon. On these findings, he convicted the appellants under Sections 498A, 304B, 302/34 I.P.C. and Section 4 of Dowry Prohibition Act and sentenced them as mentioned above. Hence this appeal has been filed.
10. We have considered the arguments of the counsel for the parties and examined the record. The appellants do not dispute that Haseena Khatoon was married to Mahboob Alam and from their wedlock one daughter Jainab Khatoon aged about 3 years was born. Dispute is in respect of date of marriage. According to the appellants, the marriage took place ten years ago from the date of occurrence while according to the prosecution marriage took place on 26.03.1997. The appellants examined Mohd. Ayub Khan and Saleem Ahmad (DWs-2 and 3), who have stated that marriage took place ten years ago from the date of occurrence. Abdul Haee (PW-1) who is father of Haseena Khatoon filed marriage card showing that marriage took place on 26.03.1997. Abdul Haee, Ramjan, Tahabbar Ali and Satish Chandra Pandey (Pws-1, 2 ,3 and 4) have proved that the marriage took place 5 years ago from the date of occurrence. Session's Judge had relied upon the statement of Abdul Haee (PW-1) which is supported with documentary evidence and discarded the statements of Mohd. Ayub Khan and Salim Ahmad (DWs- 2 and 3) in this respect. Haseena Khatoon had one daughter of three years old and was pregnant from a period of seven months on the date of occurrence as such date of marriage as given of Abdul Haee (PW-1) is more probable. Findings of Session's Judge in this respect does not suffer from any illegality.
11. So far as demand of dowry and torture of Haseena Khatoon due to non-fulfillment of this demand is concerned, Abdul Haee (PW-1) in his cross-examination has stated that at the time of marriage, no dowry was fixed. Whatever the bridegroom side desired, was voluntarily given by him. After marriage no demand in shape of dowry was made. At the time of her second bidai, no demand of dowry was made. Thereafter, Mehboob Alam left his daughter assaulting her at Beba crossing and demanded one motor cycle and a gold chain. After 10-15 days, Meboob Alam came to his house and asked for bidai of his daughter and told that whenever, he would be able to arrange his demand, it may be given. Demand of dowry was made in 1998, which was informed to him by his daughter. He specifically stated that Bitta and Sajida never made any demand of dowry from him. Abdul Haee further stated that last time Haseena Khatoon had come to her in-laws' house 8 months ago. In the meantime, he visited the house of the appellants but they did not permit him to meet Haseena Khatoon. This statement of Abdul Haee is not liable to be believed inasmuch as if he had visited the house of in-laws of Haseena Khatoon then it is not disbelieved that the appellants would not permit him to meet his daughter. From statement of Abdul Haee (PW-1) demand of dowry by the accused is not proved. Tahabbar Ali (PW-3), is resident of the village Yusuf Jot. He, in his cross-examination, has stated that he had no talk with Haseena Khatoon in this respect. When he met with Haseena, he did not see any injury to her. Satish Chandra Pandey (PW-4) is resident of Beba crossing, which is at a distance of 3 KMs from the village of Abdul Haee, where he had one medical store. He could not state the name of other daughter of Abdul Haee (PW-1), which shows that he may not have close relation with Abdul Haee (PW-1). It is not expected that the deceased Haseena Khatoon would tell any thing in relation to demand of dowry and her torture by her in-laws to such a person. From the statements of the prosecution witnesses demand of dowry was not proved as such charges against the appellants under Section 4 of Dowry Prohibition Act, 1961 is not proved. As dowry demand and torture of Haseena Begum in relation to it, soon before her death are not proved as such presumption of dowry death cannot be raised under Section 113-B of Evidence Act, 1872. The charges against the appellants under Section 498-A and 304-B IPC are not proved.
12. From the postmortem report of Haseena Khatoon (Ex-Ka-3) it is proved that she had died as a result of asphyxia due to throttling and thereafter she was burnt. From the postmortem report of Jainab Khatoon (Ex-Ka-4) also it is proved that she died due to massive blood loss due to ante-mortem cut injuries and thereafter she was burnt. From Inquest reports (Ex-Ka-2 and Ka-2A) as well as statement of Om Prakash Tripathi (PW-7), it is proved that the dead bodies of Haseena Khatoon and Jainab Khatoon were found inside the dehari, in the house of the appellants. Homicidal death of Haseena Khatoon and Jainab Khatoon, wife and daughter of Mehboob Alam on 13.05.2002 inside the house of the accused has been proved. There is no evidence to prove that murder of Haseena Khatoon and Jainab Khatoon was done by all the accused in furtherance of their common intention. There is no reason/motive for Hafiza @ Bitta and Sajida @ Wahida to commit murder of Jainab Khatoon aged about 3 years. The charges against Hafiza @ Bitta and Sajida @ Wahida under Section 302/34 IPC are not proved.
13. However, homicidal death of Haseena Khatoon and Jainab Khatoon and attempt to eliminate their dead bodies by burning it in dehari inside the house of Mehboob Alam is proved, beyond reasonable doubt. This was strong circumstance against Mehboob Alam. The appellants took defence that they were not present at their house at the time of incident. Chinku @ Raj Kumar, the tractor driver of Abdul Haee (PW-1) used to visit his house. On the date of incident Chinku @ Raj Kumar had come to their house at about 1:30 P.M. to 2:00 P.M. and tried to take Haseena forcibly for which she did not agree. Therefore, she along with her daughter were murdered and their dead bodies were burnt by Chinku @ Raj Kumar inside the house of the appellants. The evidence of Salim Ahmad (DW-3) in this respect is based upon hearsay. In cross-examination he has admitted that he came to know about death of Haseena Khatoon in the village at about 1:30 P.M. to 2:00 P.M. Defence of the appellants in this respect is not proved.
14. Incident had taken place on 13.05.2002, in midday. Dr. R.P. Mishra (DW-1) has proved that on 11.05.2002, he had treated Mehboob Alam for vomiting and diarrhea. In summer, a person suffering from vomiting and diarrhea will not go out side his house in midday. Defence taken of by the appellant-1 that he was not at his house in midday on the date of incident is not liable to be believed. Homicidal death of Haseena Khatoon and Jainab Khatoon was caused inside the house of the appellants as such the burden was upon the appellants to prove as to how their death had been caused. The appellant had failed to discharge their burden. If Chinku @ Raj Kumar had murdered Haseena Khatoon and her daughter, it was not expected from him that he would burn the dead bodies keeping it in dehari. In such case, the appellant would have lodged FIR, promptly and would have not absconded. Therefore, adverse inference has to be drawn against the appellant Mehboob Alam, has been rightly held guilty for committing murder of his wife and daughter and the charge under Section 302 I.P.C. against him is proved.
15. In the result, the appeal partly succeeds and is partly allowed . The conviction of Hafiza @ Bitta and Sajida @ Wahida (appellants-2 and 3) under Sections 498A, 304-B, 302/34, I.P.C. and Section 4 Dowry Prohibition Act, 1961 and conviction and of Mehboob Alam under Sections 498A, 304-B, I.P.C. and Section 4 Dowry Prohibition Act, 1961 in S.T. No. 194 of 2002 (State vs. Mehboob Alam and others) passed by Additional Sessions Judge/F.T.C. No.1, Siddharth Nagar dated 21.04.2004 (arising out of Case Crime No.284 of 2002 under Sections 498A, 304-B, 302/34, I.P.C. and Section 4 Dowry Prohibition Act, 1961 P.S. Etwa, district Siddharthnagar) is set aside. Appellants-2 and 3 are on bail. Their bail bonds are canceled and sureties are discharged. The conviction of Mehboob Alam (appellant-1) under Section 302 IPC in aforementioned case, is upheld and Mehboob Alam (appellant-1) is sentenced for imprisonment for life. He is in jail and shall serve the sentence.
Order Date :- 23.8.2018 Rahul/-
[Umesh Chandra Tripathi,J.] [Ram Surat Ram (Maurya),J.]