# Abubakar v. State Of U.P

- **Citation:** (2016) 5 ILRA 1923
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-10
- **Bench:** Arvind Kumar Mishra-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abubakar-v-state-of-u-p-43886
- **Pages:** 12

## Headnote

Indian Penal Code, 1860 - Sections 302, 304-B (Dowry Death), 498-A (Cruelty); Dowry
Prohibition Act, 1961 - Sections 3 and 4; Indian Evidence Act, 1872 - Section 113-B
(Presumption as to Dowry Death); Code of Criminal Procedure, 1973 - Sections 154, 157, 313.

## Text

_Characters 0–39,863 of 40,263. This is a partial read: ask again with offset=39863 for what follows._

5 All. Abubakar Vs State Of U.P.

1923
 41. Thus, the prosecution has miserably failed to prove its case beyond reasonable doubt
against the present appellants and the appeal is liable to be allowed.

42. Accordingly the appeal is allowed.

43. The order of conviction and sentence dated 19.03.2013, passed by Additional District
and Sessions Judge, Court No. 15, Muzaffarnagar, in Sessions Trial No. 923 of 2005 (State vs.
Bhopal Singh & Others), arising out of Case Crime No. 263 of 2005, under Sections 376, 323, 506
I.P.C., Police Station Budhana, District Muzaffarnagar, as against the present appellants, is hereby
set aside.

44. The appellants namely Bhopal Singh and Sunny are in jail. They shall be released
forthwith in this case. However, the appellants are directed to comply with the provision of Section
437-A Cr.P.C.

45. Let certified copy of this judgment be sent to the court concerned.
----------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 10.05.2016

BEFORE

THE HON'BLE ARVIND KUMAR MISHRA-I, J.

Criminal Appeal No.- 1530 Of 2015

Abubakar ...Appellant
Versus
State Of U.P. ...Respondent

Counsel for the Appellant:
Rajesh Bahadur Singh Rath.

Counsel for Respondent:
Govt. Advocate.

Indian Penal Code, 1860 - Sections 302, 304-B (Dowry Death), 498-A (Cruelty); Dowry
Prohibition Act, 1961 - Sections 3 and 4; Indian Evidence Act, 1872 - Section 113-B
(Presumption as to Dowry Death); Code of Criminal Procedure, 1973 - Sections 154, 157, 313.

1. First Information Report - General Diary Entry Regarding Death - Whether Constitutes FIR -
Distinction Between Chance Information and FIR Under Section 154 Cr.P.C.:
On 22.12.2009, an oral information was given at the police station by the sister of the deceased stating that
the deceased had committed suicide. This information was merely noted in the General Diary at Report No. 42
at 19.05 hours and was not assigned any case crime number nor did it lead to any criminal investigation
against any person. A formal FIR was subsequently lodged on 31.12.2009 at Crime No. 1229 of 2009 upon a
1924 INDIAN LAW REPORTS ALLAHABAD SERIES
written report by the brother of the deceased specifically alleging dowry death against the husband and inlaws, which was registered after due enquiry directed by the Superintendent of Police. The Court held that a
general chance information regarding death, not disclosing the commission of any specific cognizable offence
by any identifiable person, and which does not set the criminal law in motion under Sections 154 and 157
Cr.P.C., cannot be treated as an FIR in law. The subsequent specific report alleging dowry death and leading
to investigation and registration of crime was the real and valid FIR. - General Diary entry held not to be an
FIR; subsequent report held to be the valid FIR.

2. First Information Report - Second FIR for Same Incident - Permissibility - CounterComplaint Not Prohibited - Reliance on Upkar Singh vs. Ved Prakash:
The contention that there cannot be two FIRs for the same incident and that the subsequent FIR dated
31.12.2009 was liable to be treated as a second FIR and therefore inadmissible was rejected. Relying upon
Upkar Singh vs. Ved Prakash and Others, (2004) 13 SCC 292 (Three Judge Bench), the Court held that the
filing of a counter-complaint or a second FIR in respect of the same incident is not prohibited under the Code
of Criminal Procedure, particularly where the aggrieved victim or his family lodges a specific complaint against
the real accused. To hold otherwise would deprive the real aggrieved party of the legitimate right to bring the
true perpetrator to book. The principle was further reinforced by the observation in T.T. Antony vs. State of
Kerala, (2001) 6 SCC 1 that counter-complaints are permissible. - Plea of second FIR rejected.

3. Dowry Death - Section 304-B IPC - Essential Ingredients - Period of Seven Years from Date
of Death, Not from Date of Deposition - Correct Method of Computation:
The appellant contended that since the prosecution witnesses gave varying dates of marriage (2004 and 2005
respectively), the exact date of marriage was unproved, and the testimony of P.W.2 - who stated that the
marriage took place 'seven years ago' - when reckoned from the date of her deposition (01.11.2011), placed
the marriage in 2004, making it beyond the seven-year period stipulated under Section 304-B IPC. The Court
rejected this contention and laid down that the seven-year period under Section 304-B IPC is required to be
computed backwards from the date of death of the victim, and not from the date of deposition of a witness.
In the present case, the death occurred on 22.12.2009 and the marriage took place in either 2004 or 2005,
both of which fall well within the seven-year period running from 22.12.2002 to 22.12.2009. Minor
discrepancies in the year of marriage as stated by different witnesses do not destroy the prosecution case as
long as the marriage is established to have been solemnized within the seven-year window. - Seven-year
period held to be correctly computed from date of death; ingredient satisfied.

4. Dowry Death - Section 304-B IPC - Proof of Cruelty and Dowry Demand Soon Before Death
- Consistent Testimony of Family Members - Presumption Under Section 113-B Evidence Act:
The prosecution witnesses (P.W.1, P.W.2 and P.W.3 - brother, sister-in-law and brother of the deceased
respectively) consistently deposed that approximately two years after marriage, a persistent demand for Rs. 5
lacs in cash or, in the alternative, a plot in Bombay, was raised by the appellant and his family members and
that the deceased was continuously subjected to cruelty and harassment for non-fulfillment of the same. The
deceased used to communicate this maltreatment to her natal family. There was no material contradiction in
their cross-examination disclosing any ulterior motive for making false allegations. The death being admittedly
unnatural (asphyxia due to hanging), and having occurred within seven years of marriage, and the
prosecution having established cruelty soon before death in connection with a dowry demand, all essential
ingredients of Section 304-B IPC stood proved. Consequently, the statutory presumption under Section 113-B
of the Indian Evidence Act mandatorily arose against the appellant. - Presumption under Section 113-B held
properly raised and not rebutted.

5. Dowry Death - Defence of Suicidal Death - Burden on Accused to Rebut Presumption Under
Section 113-B - Failure to Discharge Burden - Silence Under Section 313 Cr.P.C. - Adverse
Inference:
5 All. Abubakar Vs State Of U.P.

1925
The appellant sought to contend that the death was suicidal, relying on the GD entry of 22.12.2009 wherein
the sister of the deceased had reportedly stated that the deceased had committed suicide. The Court rejected
this defence on multiple grounds: (i) the sister of the deceased (Smt. Anisa Bano) was neither examined by
the prosecution nor the defence, nor was any application moved to record her testimony; (ii) the post mortem
report established ante-mortem hanging without any medical opinion or even a suggestion that the nature of
injuries was consistent with suicide; (iii) no witness, document, or circumstance on record supported the
theory of suicidal death; and critically, (iv) in the statement recorded under Section 313 Cr.P.C., the appellant
did not state even a single word explaining the circumstances or cause of the deceased's death, which silence
he was obliged to explain once the prosecution had established the foundational facts attracting the
presumption under Section 113-B. Such silence and failure to rebut strengthened the presumption further. -
Defence of suicidal death rejected; presumption not rebutted; conviction upheld.

6. Medical Evidence - Post Mortem - Ante-Mortem Ligature Mark - Asphyxia Due to Hanging -
No Medical Opinion of Suicidal Death - Significance:
The post mortem examination conducted by P.W.4 revealed a non-continuous ligature mark on the front of
the neck, obliquely placed, with a knot on the left side; the groove of the ligature mark was hard, yellow and
parchment-like, with marked ecchymosis and trickled saliva from the right nostril. The cause of death was
asphyxia as a result of ante-mortem hanging. The doctor gave no opinion - nor was any question put to him
in cross-examination - that the nature of the injuries was ordinarily and reasonably indicative of suicidal
death. The Court held that in the absence of any such specific expert testimony, no inference of suicidal death
could be drawn. The defence having not cross-examined the doctor on the crucial issue of suicide, the post
mortem evidence stood uncontroverted on the issue of homicide. - Post mortem evidence held consistent
with dowry death; no suicidal inference sustainable.

Held
Criminal appeal dismissed. Judgment of conviction dated 16.12.2015 and order of sentence dated 17.12.2015
passed by Additional Sessions Judge, Court No. 3, Raebareli in Sessions Trial No. 432 of 2010 under Sections
304-B and 498-A IPC and Section 4 of the Dowry Prohibition Act upheld. Appellant directed to serve out the
remaining part of the sentence.

Case listed
1. Upkar Singh vs. Ved Prakash and Others, (2004) 13 SCC 292 - Second/counter FIR for same incident
permissible; general information noted in GD not equivalent to FIR under Section 154 Cr.P.C.
2. T.T. Antony vs. State of Kerala, (2001) 6 SCC 1 - Considered in context of permissibility of second FIR;
counter-complaint not prohibited.
3. Gurdeep Singh vs. State of Punjab, (2013) 10 SCC 395 - Presumption of dowry death under Section 113B, Indian Evidence Act - discussed but held inapplicable to benefit appellant.
4. Musauddin Ahmed vs. State of Assam, (2009) 14 SCC 541 - Cited by appellant (copy not produced);
considered.
5. Amit Bhai Anil Chandra Shah vs. CBI, (2013) 6 SCC 348 - Cited by appellant (copy not produced);
considered.

(Delivered by Hon'ble Arvind Kumar Mishra-I, J.)

1. Heard at length Sri R.B.S. Rathaur, learned counsel for the appellant, Sri Abhay Veer
Singh, learned AGA for the State and perused the record.
1926 INDIAN LAW REPORTS ALLAHABAD SERIES
2. The instant criminal appeal has been preferred by appellant Abubakar son of Jumman @
Kasim against the judgment of conviction dated 16.12.2015 and order of sentence dated 17.12.2015
passed by Additional Sessions Judge, Court No. 3, Raibareli in Sessions Trial No.432 of 2010
arising out of Case Crime No. 1229 of 2009, under Sections 498-A, 304-B IPC and in the
alternative under Section 302 IPC and 3/4 Dowry Prohibition Act, Police Station Mohanganj,
District Raebareli, whereby the appellant has been sentenced to seven years rigorous imprisonment
under Section 304-B IPC and two years imprisonment under Section 498A IPC with fine of Rs.
5,000/-, in case of default, he would have to suffer six months' additional imprisonment; one year
imprisonment with a fine of Rs. 5,000/-, in case of default he would have to suffer three months'
additional imprisonment, under Section 4 of Dowry Prohibition Act. Appellant has been acquitted
of the alternative charge under Section 302 IPC and charge under Section 3 of Dowry Prohibition
Act Sentences shall run concurrently.

3. Prosecution story as discernible from record appears to be; that first informant Meraj Ali
gave typed / written report to the Superintendent of Police, Raebareli, dated 27.12.2009 wherein he
stated that he got wedded his sister, Anisul to the present appellant Abubakar, according to Muslim
tradition and custom and gave dowry as per his capacity but the in-laws of Anisul were not satisfied
with the dowry and they used to maltreat and harass his sister. They used to say to his sister that her
brothers are earning livelihood in Bombay, therefore, she should get Rs.5 lacs from them or she
should get a plot in Bombay. In case the demand is not fulfilled, she will be killed. This kind of
dowry demand was made on several occasions to the first informant but the first informant, with a
view to avoid the situation, tried to reconcile the matter. Today, on 22.12.2009 at 9.00 am, Smt.
Sabiran the mother-in- law of first informant's brother Shiraj, informed that Anisul's in-laws are
beating her. Thereafter Abbas Ali, a co-villager also telephonically informed that Anisul's father in
law Jumman @ Kasim, Nanad (sister in law) Arifa Bano and Wasreen, mother-in-law Rahimul and
husband Abubakar had done her to death by strangulation.

4. The first informant and others somehow reached at the place of occurrence from
Bombay when they found that post mortem examination had taken place and no person from his
family was present. Therefore, first information report could not be lodged. The dead body of
Anisul was taken home by the first informant. After performing last rites, the first informant went
to the Station House Officer of concerned police station but he did not listen to him, then he had to
come (before Superintendent of Police), Raebareli, to lodge the first information report. Report be
lodged and stern action be taken so that such incident could be nipped in the bud.

5. It is gathered from record that this report was endorsed by the Superintendent of Police,
Raebareli, on 29.12.2009 with direction to the Station House Officer, Police Station Mohanganj, to
inquire into the matter and ensure further action. In pursuance of above, the S.H.O. directed Head
Moharrir to register the case vide his endorsement dated 31.12.2009. Pursuant to aforesaid
direction, the first information report was lodged at Police Station Mohanganj, District Raebareli on
31.12.2009, which is exhibit Ka-1 on record.
5 All. Abubakar Vs State Of U.P.

1927
6. The contents of the FIR has been taken down in the check FIR at Crime no. 1229 of
2009 under Sections 498-A, 304-B IPC and 3/4 Dowry Prohibition Act, Police Station Mohanganj,
District Raebareli at 12.30 pm. Check FIR is exhibit Ka-4. On the basis of entry so made in the
check FIR, the case was registered against the appellant at report no. 25 of concerned GD at 12.30
p.m. On 31.12.2009 at case crime no. 1229 of 2009. Carbon copy of GD is exhibit Ka-5.

7. Record reflects that earlier on 22.12.2009, the information regarding death of Anisul was
furnished to the concerned police station Mohanganj by the sister of deceased Anisa Bano on
22.12.2009 which was noted on report no. 42 in GD dated 22.12.2009 at 19.05 hours. Pursuant to
above information, the police and Tehsildar arrived on spot and prepared inquest report of dead
body of deceased Anisul which commenced at 8.15 a.m. and ended at 9.20 a.m. In the opinion of
Panchans, it was thought proper to send the body for post mortem examination for ascertaining real
cause of death. This inquest report is exhibit Ka-2.

8. Thereafter, relevant papers were prepared for sending the dead body for post mortem
examination, i.e. Police Form-13 challan of dead body exhibit Ka-8, Photonash exhibit Ka-9, letter
to Chief Medical Officer exhibit Ka-10 and the dead body was sent to District Hospital, Raebareli
where post mortem examination was conducted by Dr. Arvind Kumar Srivastava on 23.12.2009 at
3.30 p.m. who found the following ante-mortem injuries on the dead body of Anisul.

9. Non continuous ligature mark of length 26 cm (total 30 cm length) x 1.5 cm on the front
of neck between chin and larynx (thyroid cartilage) high up, obliquely placed. Knot is present on
left side of neck between left angle of mandible and mastoid region, 4cm gap on the left side of
neck. The groove of ligature mark is hard yellow and parchment like. On cutting, tissue under the
neck is white, hard, glittering. Seliva has trickled down from the right angle of nostril. Ecchymosis
on the ligature mark is well marked.

10. In the opinion of doctor, the duration of death was about one day and the cause of death
was due to asphyxia as a result of ante-mortem injuries. Post mortem examination report is exhibit
Ka-3 on record.

11. The Investigating Officer recorded statement of various witnesses and prepared site
plan which is exhibit Ka-6 on record. The Investigating Officer after completing investigation filed
charge sheet against Jumman @ Kasim, Abubakar and Smt. Rahimul under Sections 498A, 304B
IPC and Section 3/4 of the Dowry Prohibition Act. The charge-sheet is exhibit Ka-7. Thereafter,
the case was committed to the court of Sessions from where it was made over for trial to the court
of Additional Sessions Judge, Rae Bareilly.

12. The learned trial court, after hearing the appellant on point of charge, recorded its
prima-facie satisfaction for framing charge under Section 304-B, 498-A IPC and in the alternative
under Section 302 IPC and 3/4 Dowry Prohibition Act. The charges were read over and explained
to the accused who denied charges and opted for trial.
1928 INDIAN LAW REPORTS ALLAHABAD SERIES
13. In turn, the prosecution was asked to adduce its testimony. The prosecution in all
produced seven witnesses. A brief reference of the same is sketched herein under:

Meraj Ali PW-1 is the first informant. Smt. Nazma Bano PW-2 is sister-in-law
(Bhabhi) of deceased. She has testified on point of dowry demand and cruelty perpetrated by inlaws of deceased. Abdul Raheem PW-3, brother of deceased. He has also testified on the same line
as Pw-1 and PW-2. Dr. Arvind Kumar Srivastava PW-4 has conducted autopsy on the dead body of
deceased Anisul on 23.12.2009 at 3.30 pm at District Hospital, Raebareli and he has proved the
post mortem examination report exhibit Ka-3. Constable Shiv Chand Tiwari PW-5 is Head
Moharrir who prepared check FIR and made relevant entries in the concerned GD when the case
was lodged/ registered against the appellant on 31.12.2009 at police station Mohanganj. He has
proved the check FIR as exhibit Ka-4 and relevant GD entry as Ka-5. He has also testified in his
cross examination that on 22.12.2009, Smt. Anisa Bano wife of Mohd. Zahir gave report/
information regarding death of her sister Anisul by committing suicide and the same was entered in
GD dated 22.12.2009 as report no. 42 at 19.05 hours. Aditya Kumar Shukla PW-6 is the
Investigating Officer. He has proved various steps taken by him in completing the investigation. He
has proved site plan (exhibit Ka-6) and the charge sheet (exhibit Ka-7). Ram Pal Tiwari PW-7 is
the Tehsildar who prepared inquest report on 23.12.2009 and has proved the same as exhibit Ka-2.
He also proved relevant papers as exhibit Ka-8, Ka-9 and Ka-10.

Thereafter, evidence for the prosecution was closed and statement of appellant was
recorded under Section 313 Cr.P.C. wherein he has termed his implication false on account of
enmity and has claimed to be innocent.

14. The learned lower court, after hearing both the sides on merit and appraising the
evidence on record, passed the impugned judgment of conviction dated 16.12.2015 and order of
sentence dated 17.12.2015.

15. Consequently, this appeal.

16. Sri Rajesh Bahadur Singh Rathaur, learned counsel for the appellant has contended that
in this case, the essential ingredients of causing dowry death have not been proved. Testimony on
record reveals that the marriage in question is beyond seven years. Nazma Bano PW-2 wife of
Shiraj Ali says that the marriage took place in June 2005. Abdul Raheem PW-3 brother of deceased
says that the marriage took place in October 2004. Exact date of marriage has not been proved. All
the prosecution witnesses of fact PW-1, PW-2 and PW-3 do not specify and state the exact date of
marriage as to when it took place. Their testimony in this regard is doubtful and cannot be believed.
It is established position of law that the facts which are initially required to be proved must be
proved and then only presumption of law as laid down under Section 113B of Indian Evidence Act,
1872 can be raised and not otherwise.

17. Learned counsel further stressed that in this case the so called FIR is no FIR at all. This
FIR dated 27.12.2009 was wrongly registered at police station Mohanganj on 31.12.2009 at 12.30
5 All. Abubakar Vs State Of U.P.

1929
p.m because there was prior written report/ information regarding incident of death of deceased
Anisul on 22.12.2009 which was taken down in the concerned GD of 22.12.2009 at report no. 42 at
19.05 hours. Pursuant to this information only, inquest report (exhibit Ka-2) of deceased Anisul
was prepared by the concerned Tehsildar and the police personnel. It is established position of law
that there cannot be two FIRs for the same incident. This information dated 22.12.2009 was
withheld deliberately and not produced before the trial court.

18. In support of his view, learned counsel has placed reliance on the decision in the case
of Musauddin Ahmed Vs. State of Assam reported in (2009) 14 SCC 541, Amit Bhai Anil
Chandra Shah Vs. CBI reported in (2013) 6 SCC 348 and Gurdeep Singh Vs. State of Punjab
reported in (2013) 10 SCC 395.

19. Relevant to mention that learned counsel for the appellant did not produce either copy
of aforesaid citations except copy of case cited as Gurdeep Singh (supra). The citation shall be
dealt with at relevant place in judgment.

20. The learned AGA in reply to aforesaid contentions submitted that admittedly, it is
dowry death. All the ingredients of dowry death namely fact of marriage taking place within 7
years, demand of dowry, fact of cruelty for or in connection with demand of dowry have been
proved. It was up to the appellant, the husband of the deceased, to have come out as to under what
circumstances, the deceased died. But he failed to specify any such circumstance.

21. The deceased used to tell about torture and maltreatment meted out to her by her inlaws to her family members who have deposed categorically about the same before the trial court.
The information so furnished on 22.12.2009 by the sister of deceased Anisa Bano at the police
station was merely a chance information and it was not meant for initiating any penal action against
culprits. Since it did not require so, therefore, an entry was made only in the concerned GD at
report no. 42 on 22.12.2009 and the same cannot be treated to be FIR as required and meant by
Section 154 and 157 of Cr.P.C. There can be full fledged information for taking action against the
miscreants, if the same discloses commission of cognizable offence by some person and if it is so
registered at a crime number then such information being proper information within meaning of
Section 154 Cr.P.C. shall be treated to be the FIR.

22. Learned AGA further added that in the case of Upkar Singh Vs. Ved Prakash and
others reported in (2004) 13 SCC 292, Hon'ble Apex Court also considered ratio in the case of
T.T. Antony Vs. State of Kerala (2001) 6 SCC 1. He has submitted that under particular facts and
circumstances of the case, there can be lodged two FIRs regarding the same incident. He has laid
emphasis on para no. 3 of the decision and has claimed that the decision in Upkar Singh (supra)
was pronounced by three Judges Bench of Supreme Court. He has added that presumption drawn
under Section 113-B of the Evidence Act against the appellant is well founded on the material on
record and there is no force in the appeal.

23. Considered above submissions also.
1930 INDIAN LAW REPORTS ALLAHABAD SERIES
24. The moot points that arise for consideration in this appeal relates to the fact as to
whether the first information report in question is second FIR and the first FIR prior in time dated
22.12.2009 was withheld by the prosecution? If so, its impact and effect? Whether the prosecution
has been able to prove dowry death as required under Section 304-B IPC?

25. At the outset it would be convenient to deal with point of previous report which was
noted in the relevant General Diary of 22.12.2009 at 19.05 hours at police station Mohanganj.

26. In this context, testimony has come forth and particularly, testimony of the prosecution
witness Aditya Kumar Shukla PW-6, the Investigating Officer. He came across fact of entry of
report at report no. 42 of GD dated 22.12.2009 at 19.05 hours at P.S. Mohanganj to the effect that
the deceased committed suicide and he took carbon copy of the same. He has also stated that he has
not mentioned about this fact in the case diary. He further submitted that he did not make this
report part of investigation.

27. Relevant to take note (of fact) that Ram Pal Tiwari PW-7 prepared inquest report of the
deceased Anisul. He has stated that he prepared inquest report on 23.12.2009. Obviously this report
was taken down in the relevant GD and this fact has been proved by constable Shiv Chand Tiwari
PW-5 in his cross examination. He has stated that he was posted as Head Moharrir at P.S.
Mohanganj on 22.12.2009 when a written information was given which was noted in GD at report
no. 42 at 19.05 hours. This witness has stated that this was only formal information, therefore, its
entry was made in the relevant GD. This information was given by Smt. Anisa Bano wife of Mohd.
Zahir. He has stated that it was informed that the deceased is her real sister and she has committed
suicide. On this information, inquest report was prepared on the next date i.e. 23.12.2009 at 8.15
a.m. He has further stated that he also taken down entries in the relevant check FIR and GD of FIR
on direction of Superintendent of Police and Station House Officer and case was registered and has
proved the same as exhibit Ka-4 and exhibit Ka-5, respectively.

28. It is obvious that Smt. Anisa Bano the real married sister of deceased has not been
examined either by the prosecution or by the defence. As per testimony on record, the information
given on 22.12.2009 was a general information regarding death specifying suicide and nothing
more or less was stated nor desired. It is obvious that after entry of this information was made in
the relevant GD at report no. 42 on 22.12.2009, it was not assigned any case crime number,
meaning thereby that it was not found proper to register any case for initiation of any criminal
proceeding against any person.

29. At this stage, a bare perusal of the written report (exhibit Ka-1) reflects that this written
report was made with specific allegation of dowry death against the appellant and his family
members which was directed to be enquired into before lodging of information at the police station
by the Superintendent of Police, Raibareli. Thereafter, after due inquiry for about 2 days, this
information was taken as the first information report and lodged at case crime no. 1229 of 2009 on
31.12.2009 at 12.30 p.m., at P.S. Mohanganj, Raibareli. Obviously, this information at subsequent
stage was real FIR made with assertion of commission of specific offence with a view to take
5 All. Abubakar Vs State Of U.P.

1931
proper legal action against the culprits and to investigate the matter and the general law is that the
FIR should normally be taken to be that report which leads to investigation and pursuant to which
the legal course is put into action as required under Sections 154 and 157 of the Cr.P.C. Not only
this, even Hon'ble Supreme Court has also considered exhaustively the point under context in the
case of Upkar Singh (supra) and under para 23, Hon'ble Court has categorically observed that
lodging of counter complaint is not prohibited and Hon'ble Supreme Court has also considered a
hypothesis. In this regard para 23 and 24 of the aforesaid decision are being extracted herein below:

 23. Be that as it may, if the law laid down by this Court in T.T. Antony case is to be
accepted as holding that a second complaint in regard to the same incident filed as a countercomplaint is prohibited under the Code then, in our opinion, such conclusion would lead to serious
consequences. This will be clear from the hypothetical example given hereinbelow i.e. if in regard
to a crime committed by the real accused he takes the first opportunity to lodge a false complaint
and the same is registered by the jurisdictional police then the aggrieved victim of such crime will
be precluded from lodging a complaint giving his version of the incident in question, consequently
he will be deprived of his legitimated right to bring the real accused to book. This cannot be the
purport of the Code.

 24. We have already noticed that in T.T. Antony case this Court did not consider the legal
right of an aggrieved person to file counterclaim, on the contrary from the observations found in the
said judgment it clearly indicates that filing a counter-complaint is permissible.

30. Thus, it is obvious that another report/ FIR for the same incident is permissible and
relevant, therefore to say that subsequently report cannot be an FIR in this case is not legally
sustainable.

30(A). Now coming to the merit of the case, I have before me, testimony of prosecution
witnesses of fact Meraj Ali, Smt. Nazma and Abdul Raheem PW-1, PW-2 and PW-3 respectively.
They have stated that the marriage of deceased with the appellant took place in June 2005, prior to
7 years and in the year 2004 respectively. Learned counsel for the appellant has vociferously
claimed and stressed on testimony of Smt. Nazma Bano that as per her statement given in
examination in chief, the marriage took place prior to 7 years, therefore, it is obvious that marriage
is beyond 7 years period but the contention so raised subsides in view of clear cut calculation and
mathematical statistics.

31. Admittedly, the incident took place on 22.12.2009 around 9-10 a.m., meaning thereby
that the marriage in question must not have taken place prior to 22.12.2002 which period alone
covers a total span of 7 years. Obviously, the testimony of Smt. Nazma Bano PW-2 was recorded
on 01.11.2011. She has stated in her examination in chief that the marriage took place 7 years ago;
this 7 years span is to be counted from the date of deposition that is 01.11.2011. Counting from
that, solemnization of marriage falls in the year 2004. Thus, it is obvious that the marriage in
question was solemnized between period 22.12.2002 to 22.12.2009.
1932 INDIAN LAW REPORTS ALLAHABAD SERIES
32. The testimony of PW-1 Meraj Ali and PW-3 Abdul Raheem though gave two different
years regarding solemnization of marriage but this does not generate any doubt, for the reason that
the marriage is to be counted falling within 7 years period from the time of death of victim i.e.:-
upward by 7 years from 22.12.2009. Thus, it does not make any difference whether the marriage
took place in the year 2004 or 2005. If the testimony regarding solemnization of marriage would
have placed fact of marriage falling prior to beyond 22.12.2002 then in that eventuality alone
benefit would have been drawn in favour of the appellant. But that is not the actual factual position
in this case.

33. Therefore, cumulative reading of testimony of prosecution witnesses of fact reflects
that the marriage took place within 7 years of death of victim. Now in so far as the point of dowry
demand is concerned, all the three witnesses have stated that soon after the marriage about 2 years,
demand of dowry in the shape of Rs.5 lacs in cash or a plot in Bombay was raised which remained
unfulfilled and the victim was maltreated/ tortured and harassed by the appellant. This perpetration
of cruelty was told by the deceased to the prosecution witnesses. There is nothing dubious in their
cross examination which may give any clue to the fact that they are not telling truth for any ulterior
motive.

34. Here death in question is admittedly unnatural death. It has nowhere been established
that the death in question was suicidal. It is a case of appellant that the death in question is suicidal.
Circumstances and the testimony of witnesses of fact do not reflect that it is obviously a suicidal
death.

35. In this regard, a reference to testimony of Dr. Arvind Kumar Srivastava PW-4 who
conducted post mortem examination on the body of the deceased on 23.12.2009 at 3.30 pm can be
appropriately made, that doctor has found ante-mortem injuries as non continuous ligature mark of
length 26 cm (total 30 cm length) x 1.5 cm on the front of neck between chin and larynx (thyroid
cartilage) high up, obliquely placed. Knot is present on left side of neck between left angle of
mandible and mastoid region, 4cm gap on the left side of neck. The groove of ligature mark is hard,
yellow and parchment like. On cutting tissue under the neck is white, hard, glittering. Saliva has
trickled down from the right angle of nostril. Ecchymosis on the ligature mark is well marked.

36. The cause of death in the opinion of doctor was due to asphyxia as a result of antemortem hanging. Duration was said to be about 1 day old. Thus, the cause of death was asphyxia
due to hanging. No doubt, there is no any other external injury on the body of deceased and the
doctor, in his very last line of the testimony on page 3 of examination in chief, has stated that the
death of deceased was possible at 9.00 am on 22.12.2009. The doctor witness has nowhere opined
that sign of ante-mortem injury is ordinarily and reasonably indicative of suicidal death. In the
absence of any such specific testimony by doctor how can one jump upon conclusion that the death
in question is suicidal.

37. In all probabilities, it cannot be said that it is a case of suicidal death. The doctor
witness has not been put any question in this regard by the defence. Only one single question put in
5 All. Abubakar Vs State Of U.P.

1933
his cross examination. In reply to the same, doctor witness has stated that the deceased might have taken food
2 and 1/2 hours prior to her death.

38. From perusal of post mortem examination report and after analyzing the ante-mortem injury as
found on neck and after scrutinizing the entire testimony of doctor who conducted autopsy and proved post
mortem examination report (exhibit Ka-3), it transpires that there is no whisper that the death in question is
suicidal. It is quite surprising that the appellant has come out with theory of suicide by the deceased as she
was issueless after marriage. But there is no supporting paper or testimony on record which may justify such
a claim that the deceased in fact was fed up of her life and she was frustrated being issueless after marriage,
due to which she committed suicide.

39. Even more surprising is the fact that statement of the appellant Abubakar was recorded under
Section 313 Cr.P.C. on 16.09.2014, wherein also not a single word has been spelled on the point of death as
to how and under what circumstances and due to what reason, the deceased has committed suicide and the
claim of the appellant that sister of deceased Anisa Bano informed the police about suicidal death remains a
paper work against factual reality. If Smt. Anisa Bano had any knowledge of suicidal death of her sister, she
could have been produced even on behalf of defence. At least some application could have been moved for
recording her testimony before the trial court, but the appellant did not take any worthy steps to prove his
claim based on suicidal death augmented with fact that suicidal death has no nexus with the demand of
dowry. It is obvious that the demand of Rs.5 lacs and a plot in Bombay in the alternative was persistent and
continuous and she was subjected to cruelty and harassment for non-fulfillment of the same. This fact is
abundantly established by the testimony of the prosecution witnesses.

40. Once it has been established that the death of Anisul was caused by bodily injury then it is
obvious that it occurred otherwise than under normal circumstances and as per testimony of the prosecution
witnesses, it is established that death took place within 7 years of marriage. It is also established that soon
before her death, she was subjected to cruelty for or in connection with demand of Rs. 5 lacs and in the
alternative a plot in Bombay and thus there arises presumption of dowry death by virtue of Section 113B of
The Indian Evidence Act, 1872 which reads as hereunder:

113-B. Presumption as to dowry death.-- When the question is whether a person has
committed the dowry death of a woman and it is shown that soon before her death such woman had been
subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the
Court shall presume that such person had caused the dowry death.

41. In such a situation when the prosecution has established factum of dowry death as mandated
under Section 304B IPC thus inviting application of presumption under Section 113B of the Indian Evidence
Act, it was up to the appellant to have come out with specific clarification of death, about its cause, if the
same is not gathered from the scattered circumstances of this case. Factum of suicidal death is presumed to be
in the knowledge of the appellant-husband. In the absence of any such clarification regarding factum of death
on behalf of appellant, it will be presumed that the appellant caused dowry death of his wife Smt. Anisul.
This presumption becomes even stronger when without adducing any testimony on the point of factum of
suicidal death of Smt. Anisul, not a single word has been spelled on this point in the statement of the
1934 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant recorded under Section 313 Cr.P.C. Everything can be given go by but this omission/ silence on the
part of appellant does not come out with specific description regarding the factum of suicide.

42. The appellant, it appears, is taking shelter behind technicalities of this case which technicalities
are not existing and not working to the advantage of the appellant. It can be summed up that the demand of
dowry was persistently made by the appellant. There is presumption of dowry death raised against the
appellant. This presumption was not rebutted by the appellant. The prosecution witnesses have given
consistent version of dowry death.

43. Upon careful perusal and appraisal of the evidence of the prosecution witnesses, no apparent or
inherent error or illegality is discernible. The aforesaid citation in the case of Gurdeep Singh (supra)
regarding presumption of dowry death and import of 113 -B of Evidence Act as discussed by Hon'ble Apex
Court in para no. 8 is not helpful to the appellant for the aforesaid reasons. The trial court has taken a
panoramic view of the case and has considered the matter in its entirety and after careful perusal of evidence
and circumstances has recorded finding of conviction which finding of conviction cannot be faulted with at
this stage.

44. Therefore, the judgment of conviction dated 16.12.2015 and order of sentence dated 17.12.2015
passed by Additional Sessions Judge, Court No. 3, Raibareli in Sessions Trial No.432 of 2010 arising out of
Case Crime No. 1229 of 2009, under Sections 498-A, 304-B IPC and in the alternative under Section 302
IPC and 3/4 Dowry Prohibition Act, Police Station Mohanganj, District Raebareli, is upheld in appeal.

45.Consequently the appeal being devoid of force is dismissed.

46. In this case, appellant Abubakar is in jail. He shall serve out the remaining part of the sentence
imposed upon him in the aforesaid sessions trial.

47.