Dismissed

Naseem Ahmad v. State of U.P.

Allahabad HC6 Mar 2020CRLA/2546/2006

Case brief

AI extract

What is this about?

In a criminal appeal challenging conviction for dowry death and cruelty, the High Court affirmed the trial court's finding that the appellant caused the death of his wife by burning her within seven years of marriage. The court rejected the defense of accidental death and upheld the conviction under IPC 498-A, 304-B and the Dowry Prohibition Act.

What did the court decide?

The appeal was dismissed, confirming the conviction and sentence imposed by the trial court.

Naseem Ahmad Vs State of U.P. — Dowry and Cruelty | Allahabad HC (2020)

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AFR Reserved on 05.2.2020. Delivered on 06.03.2020.

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Court No. - 43

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Case :- CRIMINAL APPEAL No. - 2546 of 2006

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Appellant :- Naseem Ahmad Respondent :- State of U.P. Counsel for Appellant :- Vijay Gautam,B.K. Tripathi,Mohammad Parvez,Mohd. Ashraf,N.I. Jafri,Smt. Chandra Kala Chaturvedi Counsel for Respondent :- Govt. Advocate

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Hon'ble Pankaj Naqvi,J. Hon'ble Saurabh Shyam Shamshery,J.

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(Delivered by Saurabh Shyam Shamshery,J)

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Heard Ms. Chandra Kala Chaturvedi learned counsel for the appellant and Shri. A.N. Mulla, learned A.G.A., for the State.

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This criminal appeal has been filed under Section 374 (2) Cr.P.C, against the judgment and order dated 24.3.2006 passed by Additional District and Sessions Judge/Fast Track Court No.1, District-Siddharth Nagar, in Sessions Trial No.144/1999, whereby appellant was convicted under Sections 498-A, 304-B Indian Penal Code, 1860 and Section 4 of Dowry Prohibition Act, 1961 and sentenced for one year rigorous imprisonment and fine of Rs.1000/- under Section 498-A I.P.C., one year rigorous imprisonment with a fine of Rs.2500/- under Section 4 of Dowry Prohibition Act and Life Imprisonment under Section 304-B I.P.C. In case of non-payment of fine to undergo further sentence of 5 months. Other two accused were acquitted.

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Prosecution case in brief was that on 22.3.1995, first informant Haji Hafizullah lodged a written report (Ex. Ka.1) alleging that his daughter Raina Parveen @ Munni was married to Mohd. Naseem r/o District-Bahraich (accused/appellant herein) in the year 1989. Soon after her marriage, accused repeatedly demanded dowry of Rs.10,000/-, which was ultimately given him. It was further alleged that his daughter was murdered for dowry by the appellant and his younger brother-in-law Mohd. Ashfaq. Even after some days of marriage his daughter told that she was subjected to cruelty and also beaten for dowry demand. As the daughter was subjected to cruelty, he brought her to parental house. However, after some days on intervention of elders, she was returned to her matrimonial house. It was further alleged that earlier also an attempt of murder was committed upon her daughter by pouring kerosene oil over her body. However, she was saved and he took her back to parental house and she remained there for two and a half years. Subsequently, after settlement at Panchayat, deceased was taken to her matrimonial house by her husband and in laws.

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In written report it was further mentioned that on 21.3.1995, neighbour of the first informant, Abdul Amin received a phone call at about 1.30 in night that Raina Parveen was seriously injured, after half an hour, it was telephonically informed that she was no more. Incident of burning was committed at about 8 A.M. on 21.3.1995. However, no medical aid was provided to his daughter and she succumbed to burn injuries.

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On the basis of written report, an F.I.R. (Ex.Ka.6) was lodged on 22.3.1995 at 8.30 A.M. at Police Station-Tehri Bazar,

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District-Siddharth Nagar. Distance between place of occurrence and police station was reported to be 2 Km.

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The Investigating Officer visited the place of occurrence, prepared site plan and recovery memo (Ex.Ka.5) of a Tincontainer, having capacity of 5 litres, in which two litres of kerosene oil was found. Inquest report was prepared and dead body was sent for post mortem.

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Autopsy of dead body of Raina Parveen @ Munni was conducted on 23.3.1995 by Dr. S.S. Srivastava, who found following antemortem injuries:-

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(1) Burn 1st to 3rd degree involve whole body except both foot and interior part of left leg before knee joint. Line of redness present.

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(2) Abrasion (two) in area of 2 cm x 1 cm of forehead in middle point 4 cm above the arch of nose.

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On internal examination, brain and brain membrane were found congested. Pleura, both lungs and larynx trachea were found congested. Inside trachea, small particles of carbon were found. In stomach, liquid and gas were present. Cause of death was shock as a result of antemortem burn injury.

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Trial was committed to the Court of Sessions and charges under Sections 498-A and 304-B I.P.C. and Section 4 of Dowry Prohibition Act were framed against the appellant and two others namely Imran @ Ganesh and Ashfaq Ahmad.

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The prosecution in order to prove their case examined P.W.1-Fariddduddin, P.W.2-Sawara Begum, PW.3-Dr.S.S. Srivastava, P.W.4-Ashiq Ali, P.W.5-Bansh Lochan Pandey and P.W.6- Jag Prasad Pandey.

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P.W.1-Faridduddin (brother of deceased) in his chief examination supported the prosecution version on the issue that death was caused within 7 years of marriage, deceased was subjected to cruelty for demand of dowry by her husband soon before her death and death was caused by burns. In cross-examination this witness remained consistent, however mentioned about cordial relations between his sister and husband.

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P.W.2-Sawara Begum, mother of the deceased also supported the prosecution version in her chief examination on the issue of demand of dowry and that deceased was subjected to cruelty. Deceased had written a letter to her that she was subjected to cruelty due to dowry demand. She also told P.W.-2 that her husband used to beat her. This witness also remained unshaken in cross-examination. However, she also mentioned about cordial relations between her daughter and husband (appellant).

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P.W.-3, Dr. S.S.Srivastava conducted post mortem of dead body of deceased, proved injuries mentioned in the post mortem report. In his cross-examination, the Doctor stated that the injuries could be an outcome of an accident.

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P.W.-4, Ashik Ali, neighbour of appellant, Panch to the Inquest report of dead body as well as to recovery of container with two litres of kerosene oil from the place of occurrence, supported the recovery memo. In cross-examination, P.W.-4 stated that there were cordial relations between the deceased and her husband. No incident of brawl between them was reported. P.W.-4 further mentioned that at the time of incident, appellant Naseem Ahmad was not present at his house.

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P.W.-5, Bansh Lochan Pandey, proved written report and F.I.R. He mentioned about recordings of statements of the witnesses and recovery of a container containing two litres of kerosene oil from the place of occurrence.

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P.W.-6, Jag Prasad Pandey was the Tehsildar at the relevant time, who prepared the inquest report of the dead body of deceased.

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Statements of the appellant as well as other co-accused were recorded under Section 313 Cr.P.C. wherein they denied prosecution case and submitted that deceased died due to accident, while preparing food. Mohd. Harun was examined as defence witness (DW-1), who stated about cordial relations between the couple and that at the time of occurrence, appellant was present at his shop. Marriage was solemnised in 1987 or 1988. Deceased died due to accident while preparing food on stove.

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Learned Trial Court after considering statement of the witnesses and other materials came to the conclusion that marriage of the deceased was solemnised within a period of 7 years from her death and she was subjected to cruelty soon before her death in regard to demand of dowry. Accused/appellant poured kerosene oil on the deceased and set her ablaze. Learned Trial Court rejected the defence story that deceased died due to accident while preparing food on the stove.

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The learned trial court acquitted co-accused Imran and Ashfaq from all the charges in absence of sufficient evidence against them, however convicted the appellant for all the charges.

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Ms. Chandrakala Chaturvedi, learned counsel appearing on behalf of the appellant submitted that:

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(i). The impugned judgment and order dated 24.3.2006 was passed only on the basis of sole testimony of PW-2 (mother of the deceased) whereas testimony of PW-1 (brother of the deceased) was found to be unreliable.

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(ii). Demand of Dowry was not proved.

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(iii) Year of marriage remained uncertain as there was different version of P.W.-1, P.W.-2 and D.W.-1 on the issue, therefore, it was not conclusively proved that death was caused within 7 years of marriage.

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(iv). PW-1 (brother of deceased), P.W.-4 (neighbour of appellant) and D.W.-1 have stated about cordial relations between deceased and appellant, therefore allegations of cruelty for demand of dowry are without any basis.

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(v). PW-4 and DW-1 stated that appellant-Naseem was not present at his home at the time of occurrence and reached house after the occurrence. Therefore, prosecution failed to prove presence of the appellant at his house at the time of occurrence.

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(vi). Presence of 2 litres kerosene in container, half cooked rice on stove, of which some part had spilled over, at the place of occurrence indicates that deceased was burnt while cooking and her death was accidental.

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(vii). Doctor (PW-3) has opined that death could be caused due to accident, which corroborates from the scene of occurrence and also supports the explanation given by appellant in the statement recorded under Section 313 Cr.P.C.

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(viii). The appellant is suffering from small lymphocytic Lymphoma (blood cancer) and is undergoing treatment at BHU, Varanasi. The appellant had already served more than 13 years of imprisonment and is suffering from major health issue therefore on humanitarian ground the appellant deserves acquittal.

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Per contra, Shri. A.N. Mulla, learned A.G.A. opposed the submissions of the appellant and submitted that testimony of P.W.1 and P.W.2 was consistent and they completely supported the prosecution version. He further submitted that P.W.1, brother of deceased specifically stated that the marriage of his sister and appellant was solemnised in the year 1989, occurrence took place on 21.3.1995 i.e. within seven years of marriage. P.W.1 supported the prosecution version regarding demand of dowry as he specifically stated that appellant demanded Rs.10,000/- for opening a shop. Due to harassment and cruelty, deceased remained at her matrimonial house for about 3 years. She was taken back on request of family of appellant; but still subjected to cruelty. He further submitted that contradictions are trivial and are not affecting the basic prosecution case. He finally submitted that postmortem report completely supported the prosecution version that the deceased was not accidently burnt, but was set ablaze after pouring kerosene oil, which is evident from the nature of injury No.1 which indicates that she was burnt 1st to 3rd degrees, whole body except both foot and interior part of left leg before knee joint.

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In the present appeal, conviction of the appellant is under Sections 498-A, 304-B, I.P.C. and Section 4 of Dowry Prohibition Act.

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In Kashmira Devi Vs. State of Uttarakhand & Ors, 2020 SCC Online SC 87, the Court held in paragraph 18 that “for sustaining the conviction under section 304-B I.P.C. the following essentials must be satisfied:-

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(i) the death of a woman must have caused by burns or bodily injury or otherwise than normal circumstances;

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(ii) such death must have occurred within seven years of her marriage;

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(iii) soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband;

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(iv) such cruelty or harassment must be for or in connection with demand for dowry;

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(v) such cruelty or harassment is shown to have been meted out to the woman soon before her death. (Vide Kans Raj Vs. State of Punjab & Ors (2000) 5 SCC 207 and Smt. Shanti & Anr. Vs. State of Haryana (1991) 1 SCC 371.”

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In the light of above legal positions, we have to ascertain as to whether in the facts and circumstances of present case, the prosecution is able to establish the ingredients of Section 304-B I.P.C.

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The first issue is as to whether death of the deceased occurred within seven years of her marriage.

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Accurate date of marriage was neither mentioned in FIR nor in testimony of any of the witnesses. Only year of marriage i.e. 1989 was mentioned, in the written report lodged by P.W.1. P.W.1 (brother of the victim) alleged that he was 2 years elder to the victim, while another sister Sikandar Jahan was 2 years elder to him. P.W.1 was 37 years as on 10.4.2002 when he was examined. Thus, the year of birth of P.W.1 would be 1965, that of victim as 1967 and that of elder sister Sikandar Jahan as

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The defence alleged that the victim was married in the year 1983-84. P.W.1 stated that the victim was around 25-26 years old at the time of her marriage. If that was so, then, year of birth of the victim would be 1957-58 which would surpass far beyond the year of birth of elder sister of the victim (1963). The trial court on cumulative assessment of the evidence of P.W.’s 1 & 2, was of the view that the period of marriage of the victim would fall between 11.4.1988 to 11.4.1989. P.W.2, mother of the deceased in her testimony recorded on 11.6.2002 stated that marriage of her daughter took place around 13-14 years ago. On the basis of testimony of P.W.1 and P.W.2, it can be safely presumed that marriage took place either in 1988 or 1989, thus the death on 21.3.1995 was within 7 years of marriage.

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We are in complete agreement with the reasoning of the trial court as regards the year of marriage of the victim to which no perversity could be demonstrated.

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The next issue which requires consideration of the Court is about cruelty and harassment subjected to deceased in connection with demand of dowry by her husband soon before her death. On this issue, written report as well as occular evidence of P.W.1 and P.W.2 has supported prosecution version that there was dowry demand of Rs.10,000/- after the marrriage which was fulfilled by the father of the deceased. Both the witnesses also stated that due to cruelty, deceased was forced to live at her parental house for about 3 years. It has also come in the evidence that she was subjected to cruelty soon after she returned to her matrimonial house. Thus, she was subjected to cruelty over demand of dowry soon before her death. Merely because P.W.1 and 2 stated in crossexamination that there were cordial relations between the

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deceased and her husband, the entire evidence on cruelty and demand of dowry cannot be rejected. The Court has to see whether the testimony of P.W.1 and 2 inspires confidence and we are of the definite view that nothing has come in evidence, except minor inconsistency or contradictions or exaggerations which could shake confidence in accepting testimony of P.W.-1 and 2 to be reliable.

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In Rammi Vs. State of M.P., 1999 (8) SCC 649, the Court in paragraphs 25 and 26 held that :

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“25. It is a common practice in trial courts to make out contradictions from the previous statement of a witness for confronting him during cross-examination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt Section 155 of the Evidence Act provides scope for impeaching the credit of a witness by proof of an inconsistent former statement. But a reading of the section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness. The material portion of the Section is extracted below:

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Impeaching credit of witness.- The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the court, by the party who calls him-

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(1)-(2) * * *

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(3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;”

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A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Only such of the inconsistent statement which is liable to be “contradicted” would affect the credit of the witness. Section 145 of the Evidence Act also enables the cross-examiner to use any former statement of the witness, but it cautions that if it is intended to “contradict” the witness the cross-examiner is enjoined to comply with the formality prescribed therein. Section 162 of Code also permits the cross-examiner to

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use the previous statement of the witness (recorded under Section 161 of the Code) for the only limited purpose, i.e. to contradict the witness.”

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Submission of counsel for the appellant that testimony of P.W.1 was completely rejected by learned trial court is liable to be rejected, as we have perused the impugned judgment and find that the learned trial court relied upon testimony of P.W.1 however, noted contradictions in his testimony, which were trivial.

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P.W.1 and 2 remained consistent in respect of issues such as deceased was subjected to cruelty soon before her death over demand of dowry, death took place within seven years of marriage. Medical examination, nature of injuries and testimony of Doctor S.S.Srivastava (P.W.-3), are clinching and sufficient to prove beyond doubt that death of victim was caused otherwise than under normal circumstances, on account of burn injuries, attributable to the appellant. Therefore, prosecution was able to prove all the necessary ingredients of Sections 498-A, 304-B I.P.C. and Section 4 of Dowry Prohibition Act.

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We have also considered the provisions of Section 106 of the Evidence Act 1872 and its applicability in the facts and circumstances of present case. Section 106 provides inter-alia that when any fact is exclusively within the knowledge of any person, the burden of proving that fact is upon him. In the present case, wife of the accused died in the house, where they ordinarily reside. The accused offers an explanation that death of his wife was caused by accident while cooking. We are of the view that explanation given by the accused is false which is a strong circumstance that accused is responsible for commission of the crime.

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It is important to refer to paragraph 22 of State of Rajasthan Vs. Thakur Singh (2014) 12 SCC 211, on applicability of Section 106 of the Evidence Act.

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“22. The law, therefore, is quite well settled that the burden of proving the guilt of an accused is on the prosecution, but there may be certain facts pertaining to a crime that can be known only to the accused, or are virtually impossible for the prosecution to prove. These facts need to be explained by the accused and if he does not do so, then it is a strong circumstance pointing to his guilt based on those facts.”

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Further presumption as to dowry death under Section 113-B Indian Evidence Act is also against the accused as prosecution has successfully substantiated the ingredients of “dowry death” that soon before her death, deceased was subjected to cruelty for demand of dowry by accused-appellant. Accused/appellant has completely failed to rebut the presumption.

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In Baijnath and Others Vs. State of Madhya Pradesh, 2017 (1) SCC 101 , the Court in paragraph 30 held that:

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“30. A conjoint reading of these three provisions, thus predicate the burden of the prosecution to unassailably substantiate the ingredients of the two offences by direct and convincing evidence so as to avail the presumption engrafted in Section 113B of the Act against the accused. Proof of cruelty or harassment by the husband or her relative or the person charged is thus the sine qua non to inspirit the statutory presumption, to draw the person charged within the coils thereof. If the prosecution fails to demonstrate by cogent coherent and persuasive evidence to prove such fact, the person accused of either of the above referred offences cannot be held guilty by taking refuge only of the presumption to cover up the shortfall in proof.”

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Lastly, we have to deal with the submission of appellant on lenient view on quantum of punishment.

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In Hazara Singh Vs. Raj Kumar 2013 (9) SCC 516 , the Court in paragraph 10 held that:

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“10……….The legislature has bestowed upon the judiciary this enormous discretion in the sentencing policy, which must be exercised with utmost care and caution. The punishment awarded should be directly proportionate to the nature and the magnitude of the offence. The benchmark of proportionate sentencing can assist the judges in arriving at a fair and impartial verdict.”

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37. In State of Madhya Pradesh Vs. Babulal & Ors, 2013 (12) SCC 308 , the Court in para 19 held that:

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“19. In view of the above, the law on the issue can be summarised to the effect that one of the prime objectives of criminal law is the imposition of adequate, just, proportionate punishment which is commensurate with the gravity and nature of the crime and manner in which the offence is committed. The most relevant determinative factor of sentencing is proportionality between crime and punishment keeping in mind the social interest and consciousness of the society. It is a mockery of the criminal justice system to take a lenient view showing misplaced sympathy to the accused on any consideration whatsoever including the delay in conclusion of criminal proceedings. The Punishment should not be so lenient that it shocks the conscious of the society being abhorrent to the basic principles of sentencing. Thus, it is the solemn duty of the court to strike a proper balance while awarding sentence as awarding a lesser sentence encourages a criminal and as a result of the same society suffers.”

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38. In State of Madhya Pradesh Vs. Surendra Singh, 2015 (1) SCC 222, the Court in paras 13 and 14 held that:

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“13. We again reiterate in this case that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment. Meagre sentence imposed solely on account of lapse of time without considering the degree of the offence will be counter-productive in the long run and against the interest of the society.

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In a recent decision in the case of State of M.P. Vs. Bablu, (2014) 9 SCC 281, after considering and following the earlier decisions, this Court reiterated the settled proposition of law that one of the prime objectives of criminal law is the imposition of adequate, just, proportionate punishment which commensurate with gravity, nature of crime and the manner in which the offence is committed. One should keep in mind the social interest and conscience of the society while considering the determinative factor of sentence with gravity of crime. The punishment should not be so lenient that it shocks the conscience of the society. It is, therefore, solemn duty of the court to strike a proper balance while awarding the sentence as awarding lesser sentence encourages any criminal and, as a result of the same, the society suffers.”

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The case in hand is required to be decided on the issue of granting lesser punishment on the basis of aforesaid settled legal proposition regarding principle of sentencing. In the present case, accused husband has caused death of his wife by pouring kerosene and set her ablaze, which caused 3rd degree burns, over her whole body, except both foot and interior part of left leg before knee joint. Deceased was even not taken to the hospital. All essential ingredients of offences under section

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304-B I.P.C. are proved beyond reasonable doubt. Sentence awarded is just and appropriate. In these circumstances, taking any lenient view will be against the aforesaid principles of sentencing.

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We, in view of above, do not find any error in the impugned judgment and are thus of the considered opinion that prosecution has proved charges against the appellant under Sections 498-A, 304-B, I.P.C and Section 4 of Dowry Prohibition Act beyond any reasonable doubt.

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The appeal is dismissed.

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Order Date:-06.3.2020

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(Saurabh Shyam Shamshery,J) (Pankaj Naqvi,J).

Naseem Ahmad v. State of U.P.

Case brief

What is this about?

What did the court decide?

Naseem Ahmad v. State of U.P.

Case brief

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