Naheed Ara Moonis, J. - (1.) THE instant appeal has been filed on behalf of the appellant Mohd. Farooq against the Judgment and order dated 28.7.2006 passed by the Additional Sessions Judge Court No. 6 Ghaziabad whereby the appellant has been convicted and sentenced under Section 302, I.P.C. for life imprisonment with a fine of Rs. 20.000. In default of payment, the appellant had to serve out additional sentence of two years. Further the appellant was convicted and sentenced under Section 498A, I.P.C. to undergo three years rigorous imprisonment with fine of Rs. 10,000. In default of payment of fine, the appellant had to undergo one year additional imprisonment. The appellant was further convicted and sentenced under Section 3/4, Dowry Prohibition Act for two years rigorous imprisonment with fine of Rs. 5,000 and in default of payment 6 months further rigorous imprisonment. All the sentences were directed to run concurrently. The genesis of the prosecution case narrated in a nutshell is that on 14.10.2004 at about 6.15 p.m. a first information report was lodged by Dalsher. maternal uncle of the deceased that the niece of the complainant was married with Farooq two years ago. Sufficient dowry was given at the time of marriage but the in -laws of the victim were not satisfied with the dowry given by her parents. The appellant (husband), his elder brother Jan Mohammad (Jeth) and Rahis Bee wife of Jan Mohammad (Jethani) had castigated the victim and were torturing and maltreating her physically and mentally both for fetching Rs. 50,000. The parents of the victim had showed their inability of giving Rs. 50,000 as dowry, the appellant and co -accused were threatening that in case of failure of giving Rs. 50,000, the victim shall be done to death. The parents of the victim could not fulfil the dowry as demanded by the appellant and the co -accused. On 14.1.2004 the niece of the complainant was done to death. On receiving the information about the death of his daughter, the father and the mother of the victim came at the house of her in -laws at Kalloogari. The father of the victim fainted to see the condition of his daughter due to grief and shock. In these circumstances, the complainant lodged the first information report with respect to the said incident vide Case Crime No. 307 of 2004 under Sections 498A/304B, I.P.C. read with Section 3/4. Dowry Prohibition Act against the appellant Farooq, Jan Mohammad. Smt. Rahis Bee.
(2.) AFTER registration of the first information report, the police came into action and reached on the spot, prepared the inquest report and sent the dead body to mortuary on 15.10.2004 for post -mortem of the deceased. The Investigating Officer recorded the statement of the witnesses and prepared the site plan, after collecting credible and clinching evidence submitted the charge -sheet against Mohd. Farooq, the appellant. Jan Mohammad and Rahis Bee under Sections 498A/304B, I.P.C. read with Section 3/4, Dowry Prohibition Act. The trial court framed the charges under Section 498A/304B, I.P.C. read with Section 3/4, Dowry Prohibition Act and in alternative charge under Section 302 read with Section 34, I.P.C. was framed. The accused persons abjured their guilt and claimed to be tried. In order to prove its case, the prosecution had examined Smt. Samarjahan, P.W. 1, Dalsher. P.W. 3, Saddiq, P.W. 4, Irshad P.W. 5, Smt. Jaitoon P.W. 6, Smt. Sabnam P.W. 7. Mohd. Yaseen P.W. 8 and Rafiq P.W. 11 as witnesses of fact. The formal witnesses examined by the prosecution were Moharrir Mukesh Kumar P.W. 3. Naib Tehsildar Harishchand Verma P.W. 9. Dr. S. K. Mittal P.W. 10 who had conducted the autopsy of the deceased and Ishwar Chauhan Sharma, retired Superintendent of Police as P.W. 12. In addition to this, defence witnesses examined were namely Shabir Ali D.W.I and Jahur Uddin, D.W. 2 who are neighbours of the appellant.
(3.) IT was argued by Sri Dharmendra Singhal, learned counsel for the appellant that the complainant Dalsher had turned hostile. AH the witnesses have also turned hostile in the present case. Yet the court below has committed a manifest error by convicting the appellant. On the same set of facts and evidence, co -accused has already been acquitted. Learned counsel for the appellant pinpointed that in the statement under Section 313. Cr. P.C. it was specifically mentioned that the appellant had left his house at 7.00 a.m. in the morning on 14.10.2004 and the incident is alleged to have occurred on 14.10.2004, the time of which is not known, therefore, it cannot be said that the appellant had strangulated his wife. The complainant and the witnesses have turned hostile which itself casts doubt about the entire prosecution story that it was set up on wrong facts. The victim had committed suicide by strangulation on account of ailment.;