Lallu alias Abdul Rahman and Another vs State of U.P. and Others

Amar Saran and R.N. Misra, JJ.—These two writ petitions relate to the same crime, therefore, they are disposed of together by a common order, which is being passed in Criminal Misc. Writ Petition No. 5012 of 2009.

By way of these writ petitions, the Petitioners have challenged the F.I.R. registered by Karchana Police, District Allahabad on Crime No. 60 of 2009, under Sections 498A and 304B, I.P.C. and Section 3/4, D.P. Act and have prayed for quashing the F.I.R. and preventing arrest.

We have heard Shri Mukhtar Alam, learned Counsel for the Petitioners and learned A.G.A., for the State.

It appears from the record that Smt. Nasreen Bano was the daughter of the complainant-informant, who was married with Mohd. Haseen alias Achchey on 29.11.2008. Smt. Nasreen Bano died on 5.2.2009. The allegations of the prosecution are that she was burnt alive by the Petitioners and other family members for demand of dowry. The inquest report and post-mortem report (Annexures-3 and 4) shows that she had died due to deep burn injuries. The learned Counsel for the Petitioners has vehemently contended that in this case two F.I. Rs. were lodged by the complainant-informant, one was registered on 18.2.2009, another was entered in the general diary on 5.2.2009. Annexure-2 is the copy of the first information given to the police by the same complainant-informant. This shows that on 5.2.2009 Mohd. Salim had informed the police that his son-in-law informed him on telephone that Smt. Nasreen Bano died due to stove-burst. When he reached the sasural of his daughter, he found the dead body lying there. He assessed that kerosene oil was poured on his daughter and she was burnt alive. However, in that information there was no allegation regarding demand of dowry. The police entered this information in the G.D. and closed the chapter by saying that no such offence was committed. It is not clear whether any investigation or inquiry was made by the police. Subsequently, the complainant-informant gave a detail written report to the police about the death of his daughter on which the case was registered and investigation is pending. In the first report referred to above, suicide was suspected. It may be pointed out here that the information dated 5.2.2009 was given by the complainant-informant solely on the basis of the telephonic message given by his son-in-law. The learned Counsel for the Petitioners has contended that no case could be registered by the police on the second F.I.R. He has cited the case of T. T. Antony v. State of Kerala (43) 2001 ACC 345: 2001 (2) ACR 1510 (SC) ; Upkar Singh v. Ved Prakash and others 2004 (6) SCC 528 : 2004 (3) ACR 2450 (SC) and Harjinder Kaur and Ors. v. State of Punjab 2005 (2) CCC 445 and has contended that the entire investigation is illegal and a second F.I.R. is not maintainable. But we see no force in this contention because on the first information given to the police only G.D. entry was made by the police and no regular investigation was made. What inquiry was made by the police is neither known to the prosecution nor defence. In the case of Upkar Singh (supra), the Hon''ble Apex Court has quoted the case of Kari Choudhary Vs. Most. Sita Devi and Others, in which it was observed that when there were rival versions in respect of the same episode they would normally take the shape of two different F.I. Rs. and investigation can be carried on under both of them. In the case of Ramsinh Bavaji Jadeja Vs. State of Gujarat, subsequently followed in the case of State of U.P. v. P. Amadhu 1984 SCC 598 ; Uppari Venkataswamy and Others Vs. The Public Prosecutor, High Court of A.P., and previous views in the case of Tapinder Singh Vs. State of Punjab and Another, Soma Bhai Vs. State of Gujarat, and Dhananjay Chatterji v. State of West Bengal, 1994 (2) SCC 720: 1994 ACR 315 (SC), detailed views regarding subsequent F.I. Rs. have been given. This is a matter of fact and requires evidence, under what circumstances the factum of demand of dowry could not be mentioned by the complainant-informant in the first report, but that was elaborated in the second report. Moreover, as we have discussed earlier no regular investigation was made by the police on the basis of the previous report. In the second report it was also mentioned by the complainant-informant that even after post-mortem examination the police was not registering the case. This also shows some mischief on the part of the police in the first report. It is not clear from the record that when the police closed the matter on the first report.

As we have discussed earlier that information was given by the complainant-informant only on the basis of the telephonic information given by his son-in-law, the dead body of the lady was found at the house of the Petitioners and kerosene oil was poured on her body before lighting fire. Naturally this was an unnatural death. Section 304B of the Indian Penal Code says that when the death of any lady is caused under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty regarding demand of dowry, the death shall be presumed as a dowry death. Section 113B of the Indian Evidence Act also says so. In the present case before us the marriage had taken place in November, 2008 and in February, 2009 the lady died under abnormal circumstances. The burden to prove their innocence lies on the accused persons. If during investigation any new fact is brought by the prosecution witnesses, it is the duty of the Investigating Agency to look into the same and test its veracity. As regards the fact of separate living etc., alleged by the Petitioners, the Investigating Agency has to verify it by credible evidence and that cannot be decided under the writ jurisdiction.

In view of above, we are of the opinion that these writ petitions are devoid of merits and there is no ground to interfere in the investigation and these petitions are dismissed.

Let a copy of this order be placed in the file of Criminal Misc. Writ Petition No. 4303 of 2009.