- (1.) PRAFULLA C. Pant, J. This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (hereinafter referred as Cr. P. C.), is directed against the judgment and order dated 09-10-2006, passed by learned Sessions Judge, Dehradun, in Sessions Trial No. 17 of 2005, whereby accused/ appellant Mohd. Shahid alias Shabbu is convicted under Sections 498-A and 304-B of Indian Penal Code, 1860 (hereinafter referred as I. PC.), and ac cused/appellant Rashid Ahmed alias Munna is convicted under Section 4 of Dowry Prohibition Act, 1961. Accused / appellant Mohd. Shahid alias Shabbu is sentenced by said court to imprisonment for life under Section 304b I. P. C. and rig orous imprisonment for a period of two years and directed to pay fine of Rs. 5. 000/- under Section 498a I. P. C. , in de fault of payment of which he is directed to undergo further six months' rigorous imprisonment. Accused / appellant Rashid Ahmed alias Munna is sentenced to rig orous imprisonment for a period of one year and also directed to pay find of Rs. 10,000/- under Section 4 of Dowry Pro hibition Act, 1961, with further direction that in case of default he shall undergo further six months' rigorous imprisonment.
(2.) HEARD learned counsel for the par ties and perused the lower court record. Prosecution story in brief is that Saima @ Sahana Begum (deceased) was daughter of Late Firasat Khan, resi dent of District Shahjahanpur. After death of her parents, she. started living with her aunt (BUA father's sister) Shakila Begum (P. W. 2) in Yamuna Vihar, Delhi. Liyakat Khan (real brother of Firasat Khan/uncle of the deceased), the complainant (P. W. 1) with the help of Shakila Begum (P. W. 2) arranged mar riage of Saima @ Sahana Begum (de ceased) with Mohd. Shahid alias Shabbu (accused / appellant no. 1 ). Rashid Ahmed (accused / appellant no. 2) is father of Mohd. Shahid alias Shabbu, resident of Delhi. The marriage between Mohd. Shahid and Saima was solemnized in Delhi on 30-11-2003. Thereafter, Mohd. Shahid, who used to work in Dehradun, started living there with his wife (deceased ). According to the prosecution on 10-03-2004, Shakila Begum (P. W. 2) and complainant, Liyakat Khan (P. W. 1) received informa tion on phone at Delhi that Saima has died in Dehradun, where she used to live with her husband. On receiving the information they went to the house of the accused / appellant Mohd. Shahid and found Saima dead. On the same day i. e. 10-03-2004, at about 22. 15 hours, Liyakat Khan (P. W. I) prepared First Information Report (Ext. A-1) and lodged the same with Police Station Kotwali, Dehradun, on which Crime No. 84 of 2004 was entered and a case is registered under Sections 498a and 304b I. P. C. against Mohd. Shahid and his relatives. In the First Information Report, it is alleged by the complainant Liyakat Khan that Mohd. Shahid, his father Rashid Ahmed, mother Shanno and brother Javed, used to harass the deceased for non-fulfillment of demand of dowry. It is further alleged in the First Information Report that Saima has been killed by the accused and thereafter hanged. On receiving the information at Police Station, Sub Inspector Anand Lal (P. W. 5) reached to the house of accused Mohd. Shahid. He took the dead body of deceased in his possession and pre pared inquest report (Ext. A-2 ). He also prepared letter to Chief Medical Officer (Ext. A-10) requesting for postmortem examination, Police Form No. 13 (Ext. A-12), sketch of the dead body (Ext. A-13) and sample seal (Ext. A- 14), and sent the dead body for postmortem examina tion. The postmortem examination was conducted by team of two Medical Offic ers, namely Dr. Hemant Bhardwaj (P. W. 4) , and Dr. J. S. Bisht. They found that there was a ligature mark of 29cm x 1 cm around the neck of the deceased above the adams apple and prepared postmor tem report (Ext. A-9) and opined that the cause of death was asphyxia as a result of manual strangulation. Since it was a case of alleged 'dowry death' the investi gation was handed over to Brijendra Kumar Juyal, Deputy S. P. X (RW. 7), who interrogated Liyakat Khan, Shakila Begum, Sirajuddin and Akhtari Begum. Meanwhile, Sub Inspector Anand Lal, who had found one Chunari (M. Ext. 1) and one note written by deceased (Ext. 2), prepared the recovery memo (Ext. A-15 and Ext. A-16 ). The Investigating Officer (Brijendra Kumar Juyal) also collected Nikahnama (M. Ext. 3) and one settlement deed (M. Ext. 4 ). During investigation he in spected the spot on 11-03-2004 and pre pared site plan (Ext. A-17 ). On completion of investigation charge sheet (Ext. A-18) was filed against accused Mohd. Shahid alias Shabbu (husband of the deceased), Rashid Ahmed (father-in-law of the de ceased) Shanno (mother-in-law of the deceased) and Javed (brother-in-law of the deceased) for their trial in respect of offences punishable under Sections 498a and 304b I. PC. The Chief Judicial Magistrate, on 05-06-2004, on receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 of Cr. P. C. , appears to have commit ted the case to the court of Sessions for trial. Learned Sessions Judge, Dehradun, on 15-03-2005, after hearing the parties, framed charge of offences punishable under Sections 498a and 304b I. P. C. and one punishable under Section 4 of the Dowry Prohibition Act, 1961, against all the four accused, namely, Mohd Shahid alias Shabbu, Rashid Ahmed, Shanno and Javed, who pleaded not guilty and claimed to be tried. On the same day a separate al ternative charge was framed against Mohd. Shahid alias Shabbu in respect of offence punishable under Section 302 I. PC. , to which also he pleaded not guilty and claimed to be tried. On this prosecution got examined P. W. 1 Liyakat, complainant and uncle of the deceased, P. W. 2 Shakila Begum (aunt of the de ceased), P. W. 3 Constable Heera Singh, who prepared the check report (Ext. A-6) of First Information Report at the Police Station, P. W. 4 Capt. Hemant Bhardwaj, a Medical Officer, a member of team of Doctors, who conducted au topsy on the dead body of Saima, PW. 5 Sub Inspector Anand Lal, who started investigation, P. W. 6 Naseem Jahan (declared hostile) and P. W. 7 Brijendra Kumar Juyal, Deputy S. R to whom the investigation was handed over and who completed the investigation. All the evidence including the oral and documentary evidence was put to the accused under Section 313 Cr. P. C. in reply to which they admitted that on 30-11 -2003 Saima (deceased) got married to Mohd. Shahid. However, rest of the evidence was alleged to be false. It is also stated by the accused / appellants that they were falsely implicated due to enmity. In defence D. W. I Sirajuddin was examined on behalf of the accused. After hearing the parties, the trial court found that prosecution failed to prove the charge of offence punishable under Sections 498a and 304b of LRC. or that of Section 4 of Dowry Prohibition Act, 1961, against Shanno alias Shahnaj and Javed alias Annu and con sequently acquitted them of the charge. The trial court found accused Rashid Ahmed (present appellant no. 2) guilty of only charge of offence punishable under Section 4 of Dowry Prohibition Act, 1961, but he was not found guilty of any of the other charges, as such con victed only under Section 4 of-Dowry Prohibition Act, 1961. However, Mohd. Shahid (present appellant no. 1) was found guilty of charge of offence pun ishable under Sections 304b and 498a I. P. C. and after hearing on sentence Mohd. Shahid was sentenced to impris onment for life under Section 304b I. P. C. and rigorous imprisonment for a period of two years and directed to pay fine of Rs. 5,000/- under Section 498a I. P. C. , in default of payment of fine he was directed to undergo rigorous impris onment for a period of six months. Rashid Ahmed was sentenced to rigor ous imprisonment for a period of one year under Section 4 of Dowry Prohibi tion Act, 1961, and also directed to pay fine of Rs. 10. 000/- in default of payment of which he was directed to undergo rig orous imprisonment for a period of six months. Aggrieved by said judgment and order dated 09-10-2006, passed by learned Sessions Judge, Dehradun, in Sessions Trial No. 17 of 2005, this appeal is filed by the two convicts.
(3.) BEFORE further discussions it is. pertinent to mention here the relevant provisions of law applicable to the present case. The expression 'dowry death' is defined under Section 304b which provides that 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 sub jected to cruelty or harassment by her husband or any relative of her husband for or in connection with, any demand of dowry, such death shall be called 'dowry death'. It further provides that such husband and relative shall be deemed to have caused the death. Sec tion 113a of the Indian Evidence Act, 1872 provides that when the question is whether the commission of suicide by a woman had been abetted by her hus band or any relative of her husband and it is shown that she had committed sui cide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume having regard to all other circumstances of the case that such sui cide had been abetted by her husband or by such relative of her husband. If further provides that for the purposes of this Section (113a) 'cruelty' shall have same meaning as in Section 498a of I. P. C. Section 498a of I. P. C. in its ex planation, defines word 'cruelty'. It pro vides that any willful conduct which is of such 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 harassment of the woman where such harassment 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 physi cal) of the woman of harassment of the woman where such harassment is with a view to coercing her or any person re lated to her to meet any unlawful de mand for any property or valuable se curity or is on account of failure by her or any person related to her to meet such demand, shall be cruelty. We think it just and proper now to mention here the ante mortem inju ries found on the dead body of deceased by Dr. Hemant Bhardwaj (PW. 4), who conducted the postmortem examination along with Dr. J. S. Bisht and prepared autopsy report (Ext. A-9), The ante mortem injuries are being reproduced below : "incomplete ligature mark of 29x1 cm present around neck, passing anteriorly above the adams apple and incomplete over it. Side of neck. Skin of ligature mark is brownish and hard parchment like. On its dis section petechial haemorrhages are present below and around. Hyoid bone shows fracture of right great cornu with distal fragment directed towards right side of neck also shows a reddish brown contusion of 2cm x1cm above the site of fracture. " On internal examination, he found larynx and bronchi congested, lungs con gested. On examination of the genera tion of organs, it was found that uterus shows well-developed male foetus of 13cm. length with well-formed placenta with probable age of 3-4 months. The two Medical Officers in their autopsy re port opined that cause of death was as phyxia as a result of manual strangulation.;