State of U.P. vs Istyak

This application for leave to appeal has been filed against a judgment and order dated 18.11.2010 passed by the Additional Sessions Judge, Court No. 1, Saharanpur in ST No. 18 of 1998 acquitting the accused-Respondent-Istyak u/s 304B, 498A IPC and 3/4 of Dowry Prohibition Act.

A first information report was lodged at 1.00 P.M. on 30.6.1988 against Istyak, the accused-Respondent, his brother Shakeel, his father Maqsood, Istyak''s neighbour Jinda and Jinda''s father Majeed by the informant Yusuf, P.W. 1, brother of the deceased Smt. Anwari.

The first information report alleged that the accused-Respondent and the co-accused being dissatisfied with the insufficient dowry brought by Smt. Anwari, used to harass and belabor her. They used to say that either Smt. Anwari should get a television set from her home or they would make her life difficult. Smt. Anwari had complained about this to the informant and his co-villagers, namely Shyam Singh, Vikkam Singh, Prem Pal, Tasin and Hamid. On 26.6.1988 Smt. Anwari and her husband accused-Respondent Istyak had come to the informant''s village Pawarka and there in the presence of Shyam Singh, Vikram, Prem Pal, Tasin and Hamid they demanded a television set from the informant. On 28.6.1988, he learnt that the accused-Respondent and other Sasuralwalas of the deceased had given some poisonous substance, because of which she had been admitted in the district hospital, Saharanpur, but when he reached the district hospital, he found his sister dead. Then he got the post-mortem done on the corpse of the deceased and buried the dead body. However after investigation, charge sheet was submitted only against the accused-Respondent by the investigating officer, P.W. 5, C.O. Shailendra Pratap Singh.

We have heard learned Additional Government Advocate and perused the trial Court judgment and the record of the case.

It is argued by the learned Additional Government Advocate that the incident had taken place two years after the marriage, i.e. it took place within seven years of the marriage. There was demand of dowry, and the deceased was subjected to cruelty and tortured for non-fulfillment of the dowry demand for a television set and that the death was unnatural. Hence the ingredients needed for making out a case u/s 304B IPC were present. The accused-Respondent and other co-accused had run away from the hospital after the incident.

It was further submitted that two days prior to the incident, the deceased had come to her Maika where she had disclosed to the informant that her in-laws wanted a television set. This disclosure was made before Shyam Singh, Vikrkam Singh, Prem Pal, Tasin and Hamid. The informant had persuaded Smt. Anwari to go with her husband, the accused-Respondent. When she was departing for her Sasural, she had stated that if the television set was not given, then her Sasuralwale would not spare her.

The grounds of acquittal mentioned by the trial Judge were that P.W. 4, Dr. T.R. Joshi, has stated in his cross-examination that Smt. Anwari had been brought to the SBD hospital on 28.6.1988. On his inquiry, Smt. Anwari had disclosed that she has eaten a medicine, which was kept in the wheat three hours earlier. She was vomiting. This statement is inconsistent with her being administered poison by her Sasuralwale.

Even though the informant admittedly learnt about the incident on 28.6.1988 at about 3.45 P.M. but he lodged the report after two days on 30.6.1988 at 1.00 P.M., when he was an inquest witness on 28.6.88 and was also present on 29.6.88 at the time of autopsy. He admits that the FIR was lodged after consultation on 30.6.88. There is thus no reasonable explanation for the delayed FIR.

The trial Judge further recorded findings that although the death had taken place within two years of the marriage and the death was unnatural and the viscera report showed the presence of organo chloro insecticide and according to the doctor the death had taken place on 28.6.1988, but there were no marks of injury on the body and that there was no apparent reason for the murder. Further no report of cruelty was lodged earlier against the accused-Respondent and other co-accused by the informant.

P.W. 2 Abdul Hamid, who was a maternal uncle of the informant had not disclosed to the investigating officer in his statement u/s 161 Code of Criminal Procedure that the accused-Respondent Istyak had demanded a television set on 26.6.88, two days before the incident. Neither the informant nor P.W. 2 Abdul Hamid has stated that the accused-Respondent had ever beaten Smt. Anwari over demand of dowry. Not a single publicwitness namely Shyam Singh, Vikram, Prem Pal and Tasin, before whom the dowry demand was allegedly been made has been examined in this case except Hamid, P.W. 2, who was the maternal uncle of the informant and an interested witness, and as pointed out above even this witness did not disclose to the investigating officer that there was any demand for a television set on 26.6.88, when his statement was recorded u/s 161 Code of Criminal Procedure.

One defence witness D.W. 1, Mohammad Rizwan has been examined, who belongs to the village of the accused-Respondent Istyak, who stated that Smt. Anwari has died 22 years earlier. He heard that she was unwell. The accused-Respondent Istyak had gone to the thresher from where he was called. Smt. Anwari may have consumed some tablet, which was kept in the wheat thinking that this tablet may give her some relief from pain as she was ailing. She was taken to the hospital by her Sasural people and also information was given to the police. There was no allegation of dowry demand and the couple were living amicably together. They had a daughter.

According to the investigating officer, during investigation he learnt that Smt. Anwari was admitted in the Government hospital by her husband, the accused-Respondent on 28.6.1988.

P.W. 3, Mohammad Islam, the brother of the informant had also admitted in his cross-examination that no demand for a television set was made in his presence. He had also not stated that the accused-Respondent had ever beaten the deceased. No report was lodged regarding dowry demand anywhere. The trial Judge, therefore, recorded a finding that there was no dowry demand.

From the perusal of the evidence, we find that both parties were earning Rs. 50/- each and they were labourers. Also demand of the television set is belied by the fact that there was no electricity connection in the kaccha house in the Sasural of the deceased. P.W. 5, C.O. Shailendra Pratap Singh, who investigated this case, has also stated that he did not find any electric connection in the house of the deceased. P.W. 3 Mohd Islam, the other brother of the deceased admits to having told the C.O. that there was no electric connection in the house of Istyak. He also admits in his cross-examination that the deceased was not belabored by the Respondent. He also denied the allegation of his sister having been poisoned in his cross-examination, hence he was declared hostile.

In this background where it cannot be ruled out that the deceased may have herself consumed the tablet which was kept in the wheat as an insecticide, and the fact that no independent witnesses, who were named, have supported the allegation of dowry demand, and the conflicting and weak nature of evidence even of the informant and the other witnesses regarding dowry demand, the trial Court therefore rightly recorded a finding that there was no reliable evidence of dowry demand, which was a vital ingredient for making out a case u/s 304B IPC against the accused-Respondent and for drawing any statutory presumption u/s 113B of the Indian Evidence Act. The report was also lodged after 3 days, which delay was not properly explained and which is inconsistent with the case being one of dowry murder, when admittedly the informant had reached the hospital soon after the deceased was admitted there by her husband. The mere allegation by the P Ws 1 and 2, that at the time of autopsy and burial the Respondent and his family members were not present at the mortuary, even if this allegation is believed, was insufficient for holding that the accused were absent because of their involvement in the crime. Being of poor economic background they could have moved away at that time out of fear that they may be involved in this case. The incident is now over 23 years old and even two of the initial accused persons Maqsood, the father-in-law of the deceased and Majid, his neighbour have died. Because of the indiscriminate roping in of a large number of persons, the police only charge sheeted the Respondent, husband of the deceased, and did not charge sheet the 5 other co-accused persons nominated in the FIR. On an analysis of the evidence, it cannot be said that the view taken by the trial Judge is so perverse that the said view can never be reasonably taken. Therefore, there is no good reason for interference with the order of acquittal. Accordingly, the application for leave to appeal is rejected.