Partly allowed

Mumtaz Ali and Others v. State of U.P.

Allahabad HC18 Apr 2019CRLA/2952/2008

Case brief

AI extract

What is this about?

The High Court acquitted two co-accused women (sisters-in-law) of dowry death under IPC 304B, holding cruelty was not connected to dowry demand. The husband's conviction under both Sections 304B and 498A was confirmed. Sentences for the women for conviction under Section 498A were reduced to the time already spent in jail.

What did the court decide?

Appellants Akalina @ Nanhi and Jugari Begum acquitted under Section 304B IPC; convicted under Section 498A IPC to be sentenced to period already undergone. Appellant Mumtaz Ali convicted and sentenced

Mumtaz Ali and Others Vs State of U.P. — Dowry and Cruelty | Allahabad HC (2019)

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Reserved on 11.4.2019 Delivered on 18.4.2019

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Court No. - 44

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Case :- CRIMINAL APPEAL No. - 2952 of 2008

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Appellant :- Mumtaz Ali And Others Respondent :- State Of U.P. Counsel for Appellant :- M. Shahanshah Khan,K.S.Tiwari,Sanjay Kumar Yadav,Vivek Tiwari Counsel for Respondent :- Govt.Advocate

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Hon'ble Aniruddha Singh,J.

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Heard Sri K.S. Tiwari, learned counsel for the appellants and Sri S.K. Tripathi (B.H.), learned counsel for the State respondent.

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This Criminal appeal (under Section 374 Cr.P.C.) has been preferred by the appellants, namely, Mumtaz Ali, Akalina @ Nanhi and Jugari Begum challenging the judgment and order dated 29.4.2008 passed by the learned Sessions Judge, Mirzapur in S.T. No.241 of 2005, arising out of Case Crime No. 376 of 2005, under Sections 304B and 498A I.P.C. and Section ¾ of Dowry Prohibition Act, Police Station Marihan, District Mirzapur whereby the accused Madina was acquitted and accused Mumtaz Ali, Akalina @ Nanhi and Jugari Begum were convicted and sentenced under Sections 304B I.P.C. for ten years rigorous imprisonment and under Section 498A I.P.C. for two years rigorous imprisonment with a fine of Rs.1,000/- each and Mumtaz Ali was also convicted under Section ¾ of Dowry Prohibition Act for two years rigorous imprisonment with a fine of Rs.15,000/-. All the sentences shall run concurrently.

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In nutshell, according to prosecution case, F.I.R. was lodged against four accused persons, namely, Mumtaz Ali, Madina, Akalina @ Nanhi and Jugari Begum alleging that daughter of the complainant Shabana Begum was married on 7.6.2002 with Mumtaz Ali. For demand of motorcycle, they used to assault and torture her and on 21.7.2005, when the accused Mumtaz Ali had

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come to the house of the informant, he again demanded motorcycle and threatened her that if the motorcycle is not provided he will kill her. On 24.7.2005, Mumtaz Ali had assaulted his wife and on 25.7.2005 in the night he along with his family members poured kerosene oil and set on her fire in which the deceased received burn injuries. She was taken to the hospital at Marihan by the father-in-law of the deceased with the help of villagers. The complainant went there and admitted her in another hospital, namely, Mritunjay Hospital but on 1.8.2005 she unfortunately died.

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F.I.R. was lodged on the ground of letter written by complainant (Sahabuddin) which is Ex. Ka.-1. check F.I.R. was prepared, which is Ex. Ka.-4. Injury report was prepared, which is Ex. Ka.-17 and bed head ticket is Ex. Ka.-18. According to postmortem report, cause of death was found due to shock as a result of anti-mortem burn injuries. Panchayatnama, photonash, and other relevant papers were prepared and dying declaration, which is Ex. Ka.-16 was also recorded by Naib Tehsildar on 27.4.2005 and deceased Shabana Begum stated that on catching hold of Jugari and Nanhi (Nanads), the husband had thrown kerosene oil and set her on fire. She also stated that for demand of dowry, the husband was generally beating her.

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After investigation, charge-sheet was submitted against all accused persons, namely, Mumtaz Ali, Madina, Akalina @ Nanhi and Jugari Begum. Cognizance was taken and charges were framed on 2.1.2016 to which they pleaded to be not guilty and claimed for trial.

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The prosecution in order to prove its case has examined Sahabuddin as P.W.1 father of the deceased, Munni Begum as P.W.2, she is mother of the deceased, Ramazan Ali as P.W.3, Pappu Siddiqui as P.W.4, Hasina Begum as P.W.5 and Nazama Begum as P.W.6.

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Dr. S.K. Srivastava was examined as C.W.1. He had conducted the post mortem and has proved the post mortem

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report, I.O. Amarnath Singh, (C.O.) was examined as C.W.2. He has proved site plan and has submitted the charge-sheet. Kaushalesh Kumar, Naib Tehsildar was examined as C.W.3. He has proved the dying declaration and also inquest report and corresponding police papers. Dr. H.R. Maurya was examined as C.W.4. He has prepared the injury report and had also given the certificate that she was capable of giving statement i.e. dying declaration.

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The accused have denied the allegations of the prosecution and have claimed to be falsely implicated in the case. Accused Mumtaz in his statement under Section 313 Cr.P.C. has stated that he is working as a labourer with Noor Alam at Baripur. He was not present at the time of incident. When he came to know about it, he came to the house. Smt. Shabana Begum was brunt while she was preparing meals. He and his father has taken her to P.H.C., Marihan and from there to Mritunjay Hospital. She was admitted there for two days. The doctor started demanding money. His father told that he will bear the expenses of the treatment. However, the informant started demanding Rs.50,000/-. There was dispute between them. His father then took the deceased to the District Hospital Mirzapur. The informant again started having an argument with them. He also assaulted mother of deceased Mumtaz Ali and drove them away from the hospital. The other accused had stated that they were not present at the time of incident.

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The defence examined Dr. Anurag Kasera as D.W.1 and Mukhtar Ali as D.W.2. They have also filed the medical papers, bed head ticket of Mritunjay Hospital Ex. Kha1. Medical report of Dr. Anugar Kasera is Ex. Kha 2. Carbon copy of the statement of Sahabuddin recorded by Dr. Anurag Kasera is Ex. Kha. 3.

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After hearing learned counsel for the appellants as well as District Government Counsel (Criminal), the impugned judgment and order was passed. Hence this appeal.

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Learned counsel for the appellants submitted that the

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impugned judgment is illegal and is against law and fact.

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Learned counsel for the appellants further submitted that husband (Mumtaz Ali) was in jail during the trial as well as during the pendency of appeal and after serving out the sentence he was released from jail concerned. Both appellants, namely, Akalina @ Nanhi and Jugari Begum are sister-in-laws (Nanads) of the deceased. Judgment of conviction was passed only on the basis of dying declaration of the deceased and not on statements of witnesses of facts. P.Ws. 1 to 6 have not supported the prosecution case and turned hostile hence there is no legal evidence against the appellants except the so called dying declaration recorded by the Naib Tehsildar in the presence of doctor. Learned counsel for the appellants also submitted that even according to dying declaration, for demand of dowry the deceased has specifically stated that the husband had beaten her, but no allegation for demand of dowry was made against the appellants.

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Dying declaration of the deceased is reproduced below in same language:

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e`R;q iwoZ c;ku

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lckuk mez yXkHkx 25 o"kZ MCyw@vks0 Jh eqerkt xzk0 dqUn: ih0,l0 efM+gku] ehjtkiqj iz'u%& vki dk D;k uke gS\

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mRrj& lckukA iz'u%& vki dSls ty x;h\

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eSa ek;ds ls llqjky 'kuhpj dks x;hA nwljs brokj dks ¼chp esa ek;ds okil vkdj½ llqjky fQj x;hA 'kke dks ¼brokj dks gh½ esjs vkneh eqerkt us eq>s ihVk vkSj dgk Qksu djksA euk djus ij vkyekjh ls lkeku Qsdus yxsA eS jksrs&jksrs osgks'k gks x;hA lkseokj dks losjs esjh nks uun ¼tqxqM+ o uUgh½ us esjk gkFk idM+k rFkk esjs ifr us esjs Åij feVVh dk rsy Mkydj vkx yxk fn;sA

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iz'u& ?kj esa dksbZ >xM+k] yM+kbZ] ekjihV gqbZ Fkh\ mRrj& ngst ds fy, esjs ifr eq>s vDlj ekjrs&ihVrs FksA

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iz'u& vki c;ku fdlh ncko ;k Hk; ls ns jgh gS ;k LosPNk ls ns jgh gS\

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mRrj& c;ku vius eu ls ns jgh gwWA dksbZ Hk; ;k ncko ugh gSA c;ku l'kiFk ns jgh gwWA LVkQ ulZ lq"kek ik.Ms; us ejht dh igpku fd;kA c;ku esjs gLrys[k esa gSA

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For ready reference, Section 304B I.P.C. is reproduced below :

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“304B. Dowry death.- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.

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Explanation .--For the purpose of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

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(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.”

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From perusal of Section 304B I.P.C. shows the following ingredients of dowry death:

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(1) Death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage.

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(2) Soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry.

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From perusal of the record, it is admitted fact that the deceased had died due to burn injuries within seven years of her marriage.

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The question is whether soon before her death she was subjected to cruelty or harassment by her husband or appellants in connection with any demand of dowry or not.

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From perusal of dying declaration, it is very clear that for demand of dowry she has stated only against her husband. The role of other appellants were shown as catching hold only.

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Question is whether role of catching hold which is not connected with demand of dowry, will come within the purview of Section 304B I.P.C. or not.

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In the opinion of the Court for punishment under Section 304B I.P.C. harassment or cruelty must be related in connection with any demand of dowry, if it is not connected with demand of dowry, person cannot be convicted under Section 304B I.P.C.

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When simple cruelty is done, offence under Section 498A I.P.C. will be made out. For ready reference Section 498A I.P.C. is reproduced as under:

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“ 498A . Husband or relative of husband or a woman subjecting her to cruelty.- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

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Explanation.-For the purpose of this section, “cruelty” means-

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(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

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(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

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From perusal of Section 498A I.P.C., it is very clear that for punishment under Section 498A I.P.C. demand of any property or valuable security is also covered under Section 498A I.P.C. but it is not mandatory. In clause (a) of Explanation cruelty of other nature is covered under this Section.

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From perusal of the record, it appears very clearly that role of other appellants were not covered within the purview of cruelty for demand of dowry hence maximum offence against the appellants is made out under Section 498A I.P.C.

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From perusal of the record, it clearly appears that both the appellant nos. 2 and & 3, namely, Akalina @ Nanhi and Jugari Begum have served out the sentence about one year i.e. from 13.9.2005 to 18.2.2006 about five months and from 29.4.2008 to 19.11.2008 about seven months (Total about 12 months). In worst position, it is admitted fact that they have served out the sufficient sentence which may be awarded under Section 498A I.P.C. No minimum sentence is provided under Section 498A I.P.C.

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In these circumstances, no fruitful purpose would be served to send the appellant nos. 2 & 3, namely, Akalina @ Nanhi and Jugari Begum in jail because they are married ladies. Appellant no. 3- Jugari Begum was married before the incident and appellant no. 2-Akalina Begum was married after the incident and both are living in their in-laws houses ( Sasurals).

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In these circumstances, in so far as appellant nos. 2 & 3 are concerned, offence under Section 304B I.P.C. is not proved beyond reasonable doubt, as discussed above, and appeal on behalf of appellant nos. 2 & 3, namely Akalina @ Nanhi and Jugari Begum is liable to be allowed and they are acquitted under Section 304B I.P.C..

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In so far as appellant no.1-Mumtaz Ali (husband) is concerned, from perusal of the evidence produced by the prosecution as well as dying declaration of the deceased, it is very clear that for demand of dowry, the deceased was harassed and finally she was died after receiving burn injuries, hence all ingredients relating to Section 304B I.P.C are covered. Conviction and sentence awarded by the court below is liable to be confirmed. The view taken by the court below is a plausible view, hence no interference is called for in so far as appellant no. 1 is concerned. The appeal of appellant no.1-Murtaza Ali is dismissed.

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It is also pertinent to mention here that appellant no. 1 Mumtaz Ali has already been released from jail after serving out the sentence awarded to him by the court below.

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Appeal of appellant nos. 2 & 3, namely Akalina @ Nanhi

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and Jugari Begum on the point of conviction under Section 498A I.P.C. is dismissed because the court below has given concurrent findings on the point of conviction against them.

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On the point of sentence, the reasons discussed above that because they are married ladies, who are sister-in-laws (Nanads) of the deceased living in their in-laws houses (Sasural), it will be proper and ends of justice would be served if they are sentenced to the period already undergone under Section 498A I.P.C. because no minimum sentence is provided under Section 498A I.P.C.

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In the above backdrop of the case, the appeal on behalf of appellant nos. 2 & 3, namely Akalina @ Nanhi and Jugari Begum is partly allowed. The impugned judgment and order dated 29.4.2008 passed by the learned Sessions Judge, Mirzapur is set aside and appellant nos. 2 & 3, namely, Akalina @ Nanhi and Jugari Begum are convicted and sentenced to the period already undergone under Section 498A I.P.C. They are acquitted under Section 304B I.P.C. The appeal of appellant no.1 Mumtaz Ali is dismissed. Conviction and sentence awarded by the trial court is confirmed.

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Office is directed to send a copy of this order along with the lower court record to the concerned court immediately for information and compliance. Compliance report be submitted within one month which shall be kept on record.

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Order Date :- 18.4 . 2019 OP

Mumtaz Ali and Others v. State of U.P.

Case brief

What is this about?

What did the court decide?

Mumtaz Ali and Others v. State of U.P.

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