@JUDGMENTTAG-ORDER
Pratyush Kumar, J.@mdashSince these Criminal Appeals arise out of the same judgment and order dated 24.11.2006 passed in S.T. No. 422 of 2004 [State v. Mohd. Asgar], as such, both the appeals were heard together and decided by a common judgment.
2. Three accused appellants filed the Criminal Appeal No. 2631 of 2006 [Mohammad Anwar and two others] under section 374 Cr.P.C. assailing the correctness of judgment and order dated 24th November, 2006 passed by Sri R.P. Shukla, the then Sessions Judge, Faizabad in Session Trial No. 422 of 2004, Police Station Haiderganj, whereby he had convicted the appellants under sections 304-B , 498-A IPC and 3 /4 Dowry Prohibition Act and sentenced them seven years rigorous imprisonment, two years rigorous imprisonment coupled with fine of Rs. 1,000/- in default whereof further simple imprisonment of two months and two months rigorous imprisonment respectively and directed the sentences to run concurrently.
3. Criminal Appeal No. 481 of 2008 filed by the accused-appellant is directed against the above mentioned impugned judgment and order whereby the appellant was convicted under sections 304-B , 498-A IPC and 3 /4 Dowry Prohibition Act and he was sentenced to undergo imprisonment for life, two years rigorous imprisonment and fine of Rs. 1,000/- in default whereof further two months simple imprisonment and two months rigorous imprisonment respectively with the direction that the sentences to run concurrently.
4. The facts giving rise to the instant appeal may be summarized as under:--
"On 2nd June, 2004, at 6.30 p.m., Mustaq Ahmad gave a written report at Police Station Haiderganj stating therein that his sister Mahrunnisha aged about 23 years was married two years ago to Mohd. Asgar. She had a daughter Mahveez aged about 7-8 months. Mohd. Anwar was the elder brother of Mohd. Asgar. Smt. Shahjahan was wife of Mohd. Anwar and Smt. Sakrunnisha was the mother of Mohd. Asgar. They all were dissatisfied with the dowry and used to demand gold chain, ring etc. When their demands were not met they used to beat and torture Mahrunnisha who communicated her complaint to the first informant and other members of the family. Eight days ago, Asgar took Mahrunnisha, from her ''Maika'' to her ''Sasural''. On that day at 5.00 p.m., he was informed that all the accused had murdered his sister and sister''s daughter on account of non-fulfillment of demand of dowry by putting them on fire after sprinkling kerosene oil on them. Then he reached the ''Sasural'' of his later sister where she was found dead."
5. At this Chik F.I.R. was scribed. Case Crime No. 23 of 2004 under sections 498-A , 304-B IPC and 3 /4 Dowry Prohibition Act was registered and requisite entry was made in the general diary. Inquest proceedings and postmortem examination on the dead body were conducted. After completion of the investigation, chargesheet was submitted. The magistrate committed the case to the court of Session whereby they were charged under section 498-A , 304-B IPC and section 4 Dowry Prohibition Act, which they denied and claimed to be tried. Besides documentary evidence, on behalf of the prosecution, six witnesses were examined. Mustaq Ahmad, P.W. -1 is the first informant who fully supported the prosecution version. He is brother of the deceased. Rahmat ul Nisha, P.W. -2 is the mother of the deceased. She has also fully corroborated the prosecution version. Dr. Shashi Prakash Rai, P.W. 3 is the Doctor who conducted the postmortem examination on the dead body of Mahrunnisha and Mahvees. Uma Shanker Uttam, P.W. 4 is the first investigating officer. Constable Santosh Kumar, P.W. -5 is the head Moharrir of the police station concerned, who scribed the chik F.I.R. made the requisite entries in the general diary after the registration of Case Crime No. 23 of 2004 and Digamber Kushwaha, P.W. 6 is the second investigating officer.
6. In the documentary evidence, worth mentioning are written report Exhibit Ka-1, Chik F.I.R. Exhibit ka-10, inquest report Exhibit ka-9. Inquest report of Mahroonnisha is Exhibit ka-9. Postmortem report of Mahruunisha Exhibit ka-2. Inquest report of Mahveez Exhibit ka-19. Report of postmortem examination is Exhibit ka-3. Recovery memo, Exhibit ka-20 to ka 24. Site plan is Exhibit ka-29, copy of report of G.D. is Exhibit Ka-11.
7. After completion of prosecution evidence, accused persons were examined under section 313 Cr.P.C. They did not give any evidence in the defence. Defence case as emerged from the statements of the accused persons and suggestions given to the prosecution witnesses is that Asgar husband of the deceased used to live separately. The other co-accused were living separately. The deceased had died due to burn injuries. Reason for their death was not known to the accused persons.
8. Learned Session Judge after hearing arguments of both the parties found that these accused persons guilty and convicted and sentenced them as mentioned here-in-above.
9. Feeling aggrieved these two appeals have been filed by the accused appellants. Since they arise out of the same Session trial they are being disposed of by a common judgment.
10. Heard Sri Raj Mani Dubey, learned counsel for the appellant and Sri Rajendra Kumar Dwivedi, learned Additional Government Advocate for the respondent and perused the record.
11. Very briefly Sri Raj Mani Dubey, learned counsel for the appellant has argued that so far as the appellants of Appeal No. 2631 of 2006 are concerned, the learned trial Judge has recorded an erroneous finding that they were not living separately from the deceased, her husband and her daughter. According to him from the answers given during cross examination, this fact had already stood proved. No evidence was to be adduced by the defence, therefore, according to him this appeal deserves to be allowed.
12. In support of the appeal preferred by the husband of the deceased, he has argued that he does not intent to challenge the findings of fact recorded by the learned Session Judge. His only argument is that considering the facts of the case, age of Asgar, sentences awarded by learned trial Judge are excessive. To this extent, he has prayed that sentences should be reduced commensurate with nature of the crime, role of the accused and circumstances peculiar to him.
13. On behalf of the State, these arguments have been repelled and impugned judgment and order have been justified on the ground that for very cogent reason the appellants were held guilty and they were awarded appropriate sentences.
14. Further we would like to refresh the observation made by the Apex Court in the case of
"4. Since, the High Court was dealing with the appeal in exercise of its appellate jurisdiction, against conviction and sentence of life imprisonment, it was required to consider and discuss the evidence and deal with the arguments raised at the bar. Let alone, any discussion of the evidence, we do not find that the High Court even cared to notice the evidence led in the case. None of the arguments of the learned counsel for the appellant have been noticed, much less considered and discussed. The judgment is cryptic and we are at loss to understand as to what prevailed with the High Court to uphold the conviction and sentence of the appellant. On a plain requirement of justice, the High Court while dealing with a first appeal against conviction and sentence is expected to, howsoever briefly depending upon the facts of the case, consider and discuss the evidence and deal with the submissions raised at the bar. If it fails to do so, it apparently fails in the discharge of one of its essential jurisdiction under its appellate powers. In view of the infirmities pointed out by us, the judgment under appeal cannot be sustained."
15. In the case of
"5. To say the least, the approach of the High Court is totally fallacious. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the trial court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh''s case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of accused which gets strengthened on his acquittal is not available on his conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence."
16. Since death of Smt. Mahrunnisha and Mahveez occurred due to burn injuries on the stated time and place have not been disputed on behalf of the defence even during the trial, we need not go into the details of testimony of Dr. Shashi Prakash Rai P.W. 3, who on 03.06.2004 at 3.30 P.M. Performed the autopsy on the dead body of Smt. Mahrunnisha and at 3.50 P.M. did the same on the dead body of Km. Mahveez. According to him, from the dead bodies smell of kerosene oil was coming out. On the dead body of Smt. Mahrunnisha, he has recorded burn injury involving all over the body except both lower limbs below hip knee ankle on both the sides. Burn injury is opined by him to be 90 percent vide postmortem report Exhibit Ka-2 and on the dead body of Km. Mahveez he found injuries involving all over the body except both lower limbs below hip joint. Her burn injuries was 75 percent vide postmortem report Exhibit Ka-3. According to the Doctor death was occurred one day before the autopsy. It is also not disputed that these two deceased had died in the house where Mohd. Asgar was residing.
17. Prosecution witnesses Mustaq Ahmad P.W. 1, brother of the deceased and first informant, Smt. Rahmatulnisha P.W. 2, mother of the deceased supported the prosecution version as a whole.
18. The learned trial Judge placed reliance on their testimonies and raised statutory presumption of 113-B of the Indian Evidence Act against the appellants.
19. Now we are required to see whether the findings recorded by the learned trial Judge are substantiated from the record or arguments advanced on behalf of the appellants have substance.
20. Appellants of Criminal Appeal No. 2631 of 2006 all are relatives of the husband of the deceased. Appellant No. 1 is the jeth, appellant No. 2 is the jethani and appellant No. 3 was the mother-in-law of the deceased, who during appeal had died and her appeal stood abated.
21. In favour of these appellants, the learned counsel for the appellants has argued that the learned trial Judge has committed gross error in not believing the defence version that these appellants were living separately, therefore, they cannot be roped in with Mohd. Asgar husband of the deceased.
22. This is the only short point involved in this appeal. The learned trial Judge has rejected this argument on the ground that on behalf of defence no evidence of separate living was given and on the basis of this admitted fact that Asgar and Anwar were brothers, names of all the appellants of both the appeals find place in the voter list of the year 2005 showing the same house number where they were residing prior to the date of incident. The Argument of these appellants is that they were not required in evidence to substantiate their defence when prosecution witnesses themselves admitted that they had separate house, he has drawn our attention to the testimony of Mustaq Ahmad P.W. 1, who in first para of page-5 has admitted that mother of Asgar Ali had constructed her house in the field. He has further admitted that appellant No. 2 of the first appeal used to work in her field. To strengthen his argument he has drawn our attention to the statement of Smt. Rahmatulnisha P.W. 2, who though denied the suggestion that at the time of marriage the appellant No. 3 (since deceased) used to live in her house constructed in the field. However, during cross-examination she has admitted at page-4 of her deposition that she gathered this fact after inquiry and admitted that Asgar husband of the deceased used to work and live in Mumbai, whenever he left for Mumbai her daughter used to come and live in her Maika. She was also not well conversant with the cooking arrangements in the house of the appellant.
23. From the testimonies of these two witnesses version of the defence that Mohd. Asgar and the deceased used to live separately appears to be made out at least on the principles of preponderance of probabilities. After coming to this conclusion we are in agreement with the arguments advanced on behalf of the appellants that the learned trial Judge has erred in rejecting the plea of separate living only on account of not giving any evidence to substantiate this plea. The plea on the basis of preponderance of probabilities stands substantiated and conviction of the appellant Nos. 1 and 2 of Criminal Appeal No. 2631 of 2006 has been based on the finding of joint living, in view of finding recorded by us about separate living such conviction cannot be sustained in absence of any evidence showing any overt act on the part of these appellants. If they ceases to live with the deceased and her husband only on account of Jeth and Jethani, they cannot be held to be guilty of committing dowry death because they would not be benefited by such demand of dowry, hence Criminal Appeal No. 2631 of 2006 succeeds.
24. So far as Criminal Appeal of Mohd. Asgar is concerned, the only point argued in support of the appeal is that the sentence awarded by the learned trial Judge is excessive. On the basis of the testimonies of Mustaq Ahmad P.W. 1 and Smt. Rahmatulnisha P.W. 2 we find that the prosecution has successfully proved that two years before her death the deceased was married with Mohd. Asgar, she had died an unnatural death, demand for dowry was made by the husband and the deceased was subjected to such demands soon before her death. Thus, the case of dowry death against appellant Mohd. Asgar stands proved beyond reasonable doubt. However, about death of Km. Mahveez we do not think that any observation is required by us because neither the case under section 302 IPC was registered or charge-sheet submitted nor the trial court charged the accused person for this offence, her death could not be categorized as dowry death and for murder, accused was not tried. There is no direct evidence that her father killed her, presumption under section 113-B of the Indian Evidence Act would not be available, therefore, death of Km. Mahveez would have to be excluded from consideration while punishing appellant Mohd. Asgar. Incident of this case pertains to year 2004. So now after eleven years, it would not be appropriate to remand the matter for retrial.
25. According to learned counsel for the appellant Mohd. Asgar alias Barsati before the learned Sessions Judge on behalf of the appellant it was argued that there is no clear cut evidence against him indicating that the death of the deceased was caused by the appellant. However, learned Sessions Judge without dealing with this argument has awarded exemplary punishment i.e. imprisonment for life to the appellant. While arguing further learned counsel for the appellant has stated that the learned Sessions Judge has erred in taking into account the death of Km. Mahveez though neither he was charged for nor prosecution had adduced any evidence indicating the culpability of the appellant in this regard.
26. As observed herein above, for the death of Km. Mahveez neither any charge was framed against the present appellant nor there is any evidence to support on this charge. Learned Sessions Judge has misdirected himself to take that death into account while awarding punishment to the appellant.
27. The Hon''ble Apex Court in the case of
28. We find that the learned Sessions Judge has erred in fact and law both while awarding the punishment of imprisonment for life to the appellant, who is husband of the deceased for the reasons indicated above.
29. In view of above, though conviction of the appellant under section 304-B IPC along with the other sections is upheld but sentence of imprisonment for life is liable to be set aside and in our opinion taking into account the present age of the appellant i.e. 45 years, his role in the crime, his future life and possibility of his rehabilitation in the society, we think sentence of 14 years rigorous imprisonment would suffice the purpose, only to this extent Criminal Appeal No. 481 of 2008 succeeds and rest of the appeal being without substance deserves to be dismissed.
30. Accordingly Criminal Appeal No. 2631 of 2006 [Mohammad Anwar and two others v. State of U.P.] is allowed and the conviction and sentence of the appellants awarded by the learned trial Judge in S.T. No. 422 of 2004, under Sections 304-B , 498-A I.P.C. And 3 /4 Dowry Prohibition Act, are set aside. The appellants are on bail. Their bail bonds are cancelled and the sureties are discharged from their liabilities. The appellant No. 1 Mohd. Anwar and appellant No. 2 Smt. Shahjahan need not surrender, in case, they are not wanted in any other case.
31. Further Criminal Appeal No. 481 of 2008 [Mohammad Asgar alias Barsati v. State of U.P.] is partly allowed and though conviction of appellant Mohd. Asgar is maintained under the sections he was charged for but his sentence under section 304-B IPC is set aside and in its place he is punished with the sentence of 14 years rigorous imprisonment. To this extent the impugned judgment and order passed against the present appellant is modified and rest of the appeal is dismissed.
32. Office is directed to certify this order to the court concerned forthwith and send back the lower court record.
