# Sajid v. State of U.P

- **Citation:** (2024) 5 ILRA 1601
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-21
- **Case number:** Criminal Appeal No. 1686 of 2019
- **Bench:** Rahul Chaturvedi, Mohd. Azhar Husain Idrisi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sajid-v-state-of-u-p-51999
- **Pages:** 12

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 374(2) - Appeal
,Section 372 - No appeal to lie unless
otherwise provided , Indian Penal Code,
1860 - Section 498A, 307/34, 323/34 - The
Dowry prohibition Act, 1961 - Section 4 -
Judicial Propriety and Trial Judge's Pickand-Choose Decision - Judges should
make decisions with an open mind, not
preconceived notions - court must ensure
compatibility with the accused's financial
status. (Para -35,44)
1602 INDIAN LAW REPORTS ALLAHABAD SERIES
Two criminal appeal - one against conviction -
another against acquittal of co-accused persons -
to reverse finding - accord suitable sentences -
demand of dowry - Appeal Determination -
Prosecution's Paradigm Shift - Prosecution's shift
towards ulterior motives - Alleged plot purchase
not mentioned in FIR or 161 Cr.P.C. statement -
Half-hearted introduction of this angle during
prosecution witnesses' examination - Shahjad
Ali's financial capability for plot purchase
questioned - Hyperbole used by prosecution
without cogent basis or reason - Trial Judge's
Pick-and-Choose Decision - Choosing facts in
conflict with pre-determined conclusion - Booked
husband causing grave injustice. (Para - 3,
33,35)

HELD:- Trial Judge qualitatively selected those
part of the testimonies, which suits their legal
judicial conscious and book the husband (Sajid)
for the offence. Judgement and sentence against
husband erroneous and lopsided . Conviction and
sentence quashed.(Para - 45,46)

Acquittal of Nazakat, Smt. Jaitoon, and Zakir.
Trial judge's reasoning correct. No interference in
exercise of power under Section 372 Cr.P.C.
Application for special leave to appeal rejected.
(Para - 47)

Criminal
Appeal
No.
1686
of
2019
ALLOWED

Criminal Appeal No. 106 of 2019 REJECTED
(E-7)

List of Cases cited:

## Text

_Characters 0–39,990 of 40,901. This is a partial read: ask again with offset=39990 for what follows._

5 All. Sajid Vs. State of U.P.
1601
of governmental actions and fosters a
perception of arbitrariness and caprice. Such
actions not only prejudice the rights of the
affected parties but also undermine the
legitimacy of the regulatory framework as a
whole, casting doubt on the efficacy and
reliability of tax enforcement mechanisms.

10. The rationale behind the mens rea
requirement is twofold. Firstly, it serves to
preserve the integrity of the legal system by
distinguishing between inadvertent errors
and intentional misconduct. By requiring
evidence of wilful intent, it ensures that
penalties are reserved for those who
deliberately
flout
the
law,
thereby
safeguarding against unjust punishment and
preserving public confidence in the fairness
of the tax regime. Secondly, the mens rea
requirement acts as a deterrent against tax
evasion,
signalling
to
taxpayers
that
deliberate non-compliance will be met with
severe consequences. The prospect of
facing penalties serves as a powerful
disincentive for individuals and entities
tempted to engage in fraudulent or
deceitful conduct, thereby promoting
voluntary compliance with tax laws and
fostering a culture of accountability and
transparency. In the absence of wilful
intent, penalties lose their deterrent effect
and instead become arbitrary exercises of
state power, subjecting innocent taxpayers
to undue hardship and injustice. It is
imperative that penalty imposition be
grounded
in
sound
reasoning
and
substantive
evidence
of
wilful
misconduct.

10. In light of the above, the instant
writ petition is allowed. Accordingly, let
there be a writ of certiorari issued against the
orders dated October 23, 2021, October 29,
2021, April 16, 2022 and July 22, 2022. The
said orders are quashed and set-aside.
Consequential reliefs to follow.

11. The respondents are directed to
return the amount of security and penalty
paid by the petitioner within six weeks from
the date of this order. There shall be no order
as to the costs.
----------
(2024) 5 ILRA 1601
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.05.2024

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Appeal No. 1686 of 2019
With
Criminal Misc. Application U/S 372 CR.P.C
(Leave to appeal) No. 106 of 2019

Sajid ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Satish Kumar Tyagi, Nanhe Lal Tripathi,
Perdeep Kumar Vishnoi, Ramesh Kumar
Pandey, Syed Ahmed Faizan, Zaheer Asghar

Counsel for the Respondent:
G.A., Mohd. Afzal, Satish Kumar Mishra

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 374(2) - Appeal
,Section 372 - No appeal to lie unless
otherwise provided , Indian Penal Code,
1860 - Section 498A, 307/34, 323/34 - The
Dowry prohibition Act, 1961 - Section 4 -
Judicial Propriety and Trial Judge's Pickand-Choose Decision - Judges should
make decisions with an open mind, not
preconceived notions - court must ensure
compatibility with the accused's financial
status. (Para -35,44)
1602 INDIAN LAW REPORTS ALLAHABAD SERIES
Two criminal appeal - one against conviction -
another against acquittal of co-accused persons -
to reverse finding - accord suitable sentences -
demand of dowry - Appeal Determination -
Prosecution's Paradigm Shift - Prosecution's shift
towards ulterior motives - Alleged plot purchase
not mentioned in FIR or 161 Cr.P.C. statement -
Half-hearted introduction of this angle during
prosecution witnesses' examination - Shahjad
Ali's financial capability for plot purchase
questioned - Hyperbole used by prosecution
without cogent basis or reason - Trial Judge's
Pick-and-Choose Decision - Choosing facts in
conflict with pre-determined conclusion - Booked
husband causing grave injustice. (Para - 3,
33,35)

HELD:- Trial Judge qualitatively selected those
part of the testimonies, which suits their legal
judicial conscious and book the husband (Sajid)
for the offence. Judgement and sentence against
husband erroneous and lopsided . Conviction and
sentence quashed.(Para - 45,46)

Acquittal of Nazakat, Smt. Jaitoon, and Zakir.
Trial judge's reasoning correct. No interference in
exercise of power under Section 372 Cr.P.C.
Application for special leave to appeal rejected.
(Para - 47)

Criminal
Appeal
No.
1686
of
2019
ALLOWED

Criminal Appeal No. 106 of 2019 REJECTED
(E-7)

List of Cases cited:

1. Ram Das Vs St. of Mahaa. , AIR 1977 (SC)
1164

2. V.L.Tresa Vs St. of Kerala , (2001)3 SCC 549

(Delivered by Hon'ble Rahul Chaturvedi, J.
&
Hon'ble Mohd. Azhar Husain Idrisi, J.)

1. Heard Sri S.F.A. Naqvi, learned
Senior Counsel assisted by Sri Syed Ahmad
Faizan, Zaheer Asghar, Ms. Fatma Anjum
and Sri Munawar Hussain, learned counsel
for the appellants, Sri Mohd. Afzal, learned
counsel for the first informant assisted by Sri
Kushagra
Srivastava,
Sri
Shahrukh,
Advocates, Sri Ghanshyam Kumar and
Satyendra Tiwari, learned AGA-I for the
State.

2. Argument heard at length to the
satisfaction of learned counsel for the
parties.

3. The aforesaid criminal appeals are -
-- (i) Criminal Appeal No. 1686 of 2019
(Sajid Vs. State of U.P., is only on behalf of
the accused Sajid, a convicted accused for
the offence under Section 498A, 307/34,
323/34 IPC and Section 4 of the D.P.Act and
therefore the present appeal is under Section
374(2) Cr.P.C. assailing the legality and
validity of the judgement and order dated
12.02.2019 passed by Additional Sessions
Judge/ FTC, Hapur, whereby accused Sajid
was sentenced under Section 498A, three
years R.I. and a fine of Rs. 3000/- along with
default clause, under Section 307/34 IPC for
ten years R.I. and a fine of Rs. 10,000/-
along with default clause, and Section 4 of
the D.P.Act, two years R.I. and a fine of Rs.
3,000/- along with default clause AND (ii)
Criminal Appeal No. 106 of 2019 on behalf
of Shahjad Ali, the informant, who is
assailing the aforesaid judgement and order
dated 12.02.2019 whereby the learned trial
judge has recorded the acquittal of the
remaining co-accused persons, namely,
Zakir, Smt. Jaitoon and Nazakat under
Sections 498A, 307/34, 323/34 IPC and
Section 4 of the D.P.Act to reverse the
finding and accord suitable sentence to
them.

4. Since subject matter of both the
appeals, is the judgement and order dated
12.02.2019 passed by Additional Sessions
Judge/ FTC, Hapur while deciding the S.T.
5 All. Sajid Vs. State of U.P.
1603
No. 1333 of 2013 and the same set of
evidence has to be examined & appreciated
in both the appeals, therefore for the sake of
brevity and convenience, both these appeals
are being decided by a common judgement.

5. Needless to mention here, that same
set of counsel are assisting the Court in
deciding the aforesaid appeals and thus we
have heard the learned counsel of both the
sides representing their respective parties of
the appeals to their satisfaction.

6. The paper book of the appeal is
ready and the counsel for both the sides have
advanced
their
submissions
and
the
judgement was reserved.

7. Before appreciating the merit of the
case, it is imperative to give a bare skeleton
facts of the case to appreciate the
controversy involved, which are :-

(i) For the incident of 29.07.2012,
the informant Shahjad son of Mushtaq
lodged an FIR on 30.07.2012 at 12.15 p.m.,
which was registered as Case Crime No. 234
of 2012 under Section 498A, 307, 323 IPC
and Section 3/4 of D.P.Act against (a)
Sajid(husband) son of Nazakat Ali, (b)
Nazakat Ali (father-in-law), (c) Smt.
Jaitoon(mother-in-law) w/o Nazakat Ali
and (d) Zakir Ali(Dewar) son of Nazakat
Ali.

(ii) As per the allegation made in
the FIR, informant's daughter Nazrana got
married about 15 months back with Sajid of
Village Vait as per the Muslim Rites and
rituals.

(iii) In this marriage the informant
has spent Rs. 51,000/- in cash, a motorcycle,
ornaments of gold and silver and other
household goods of wood and iron.

(iv) Dissatisfied by the dowry
given to her daughter, all the family
members including Sajid, Nazakat Ali,
Jaitoon and Zakir Ali used to target her
daughter for bringing scanty dowry and she
was constantly subject of cruelty and
maltreatment and sometimes they used to
manhandle her. This has caused lot of
frustration and agony to her daughter. There
was a constant demand of a four wheeler and
Rs. 2,00,000/- by way of additional dowry.
On 29.07.2012, they have committed a
maar-peet with her. After getting the
information, the informant, Pradhan Nawab
and Intezaam went to village Vait, where
they were informed that the in-laws have
committed maar-peet with her and she has
sustained injury over her hand. Informant
and others have tried to pacify the situation
and came back.

(v) As soon as they came back,
they come to know that all the named
accused persons after pouring oil upon her
set her ablaze. Though she has not died but was
taken to Meerut,where she informed that all of
them have tried to kill her by burning her. After
setting her fire all the accused persons fled
away from the place and the informant is
engaged in treatment of her daughter and that is
how there is delay in lodging the FIR, whereby
the FIR was case crime no. 234 of 2012, under
Section 498A, 307, 323 IPC and Section 4 of
D.P.Act, P.S. Simbhawali, District Hapur.

8. As a natural outcome here, that after
registering the FIR the case was entrusted to
the police for the investigation and the
police after holding a indepth probe into the
matter has submitted a charge sheet against
all
the
named
accused
persons
on
19.09.2012 under Section 498A, 307, 323
IPC and Section 3/4 D.P.Act.

9. The learned Magistrate has taken the
cognizance of the offence and being a
1604 INDIAN LAW REPORTS ALLAHABAD SERIES
cognizable offence the case was committed
to the court of sessions for its trial.

10. It is worthwhile to mention here
that all the accused persons were bailed out,
but the learned trial judge have framed
charges against all of them them under
Section 498A, 307/34, 323/34 IPC and
Section 3/4 D.P.Act and explained to them
to which they have denied and insisted to be
tried.

11. To establish their case, the
prosecution have produced PW-1 Shahjad,
PW-2
Nazrana
(the
injured),
PW-3
Pushpendra Kumar, PW-4 Dr. Rajkumar,
PW-5 S.I.-Tribhuvan and PW-6 Udaiveer
Singh. In addition to above from the side of
prosecution five documents were produced,
which were duly exhibited during trial.

12. Syed Farman Ali Naqvi, learned
counsel for the appellant in his introductory
argument have stated that this is the
exclusive case whereby the prosecution
have changed its stand at every step casting
the serious doubts about the veracity and
authenticity of the prosecution case. The
prosecution have magnified the unfortunate
incident of burning to manifold just to
falsely implicate the accused-appellant by
levelling an omnibus and general role to all
of them. Since the informant is not an eye
witness to the incident, and therefore, driven
by instinct of taking revenge from his
opponents have collected the materials from
various quarters and magnified it and tried
to tailor a bogus story of dowry related
harassment to his daughter Nazrana. It is
also contended by learned counsel for the
appellant that these solemn provision of IPC
has
been
grossly
misused
by
the
unscrupulous litigants by inserting and
adding different angles to any how tangle
the accused persons in this dowry related
prosecution. It has been further submitted
that the injured witness Nazrana/PW-2 was
dancing on the tune of her fatherinformant/PW-1, who cooked up a story
after collecting feed back from her.

13. In this regard learned counsel for
the appellant have drawn the attention of the
Court to the testimony of prosecution
witnesses of fact, namely, PW-1 Shahjad
Ali, PW-2 Nazrana (the injured) and PW-3
Pushpendra Kumar. Let us discuss the broad
features of their testimonies one by one.

14. PW-1 Shahjad is not an eye
witness. He states that he is labour by
profession, who got her daughter married on
29.05.2011 by spending money according to
his capacity but there is demand of four
wheeler and Rs. 2 lacs. On this score, her
daughter was a constantly a target of tangent
and castic remarks by her in-laws.
Thereafter, in his examination-in-chief, he
added yet another angle for the first time
that, a demand was made to purchase a plot
in the name of her daughter, consequently
after 14-15 days of her marriage a 90 yards
plot was purchased from Jaywanti Rajesh
Kumar costing him Rs. 1.90 lacs by her
father-PW-1. After purchase of this plot the
in-laws were silent for 5-6 months, but
again they have started maltreating her
and consequently yet another plot was
purchased by him at village Vait admeasuring 200 yards for Rs. 50,000/- in the
name of her daughter, this plot was
purchased from Wakila wife of Khilafat.
This angle of purchase of two plots came
out of Blue without any background,
rather abruptly.

15. After one month on 29.07.2012
again they have started committing maarpeet with her daughter and subsequent
narration of the fact, is identically similar to
5 All. Sajid Vs. State of U.P.
1605
the FIR. From the aforesaid, it is clear that
the role of catching hold was attributed to
Nazakat (father-in-law) and Mst. Jaitoon
(mother-in-law) and pouring the oil was
attributed to Zakir Ali (Dewar) and Sajid
was given a role of setting her ablaze. Since
he was busy with her daughter's treatment
and therefore he could not come earlier to
lodge the FIR, the scribe of this FIR is
Intezaam Ali.

16. In cross examination, PW-1 was
completely exposed when he states that he
was a motor mechanic and earned Rs.
18,000-20,000/- per month as his monthly
income and his income was not a regular
one. At this juncture, it is worthwhile to
mention here that, PW-2 Nazrana (the
injured) in her cross examination states that
she is having seven brothers and sisters.
Thus in fact, the PW-1 has got responsibility
to feed ten mounts every day and Nazrana
PW-2 is his eldest married daughter.

17. It has been candidly stated in his
cross examination that there was no demand
of dowry prior to or at the time of marriage.
She visited her parent's place for three times
during her marital life. But she has never
made any complaint to her parent or to the
police.

18. At this juncture, it has been candidly
argued by Sri S.F.A.Naqvi by drawing the
attention of the Court to the PW-1 that, this
story of purchasing of two plots in the name of
Nazrana came for the first time in the
examination-in-chief of PW-1. This story was
neither in the FIR nor in the 161 Cr.P.C.
statements of the informant or Mst. Nazrana.
At this juncture it has been argued by learned
counsel for the appellant, a person (PW-1)
who claims himself that he is motor mechanic
by profession and earns Rs. 18,000-20,000/-
per months on irregular basis, it is beyond his
capacity and means to purchase two plots in a
quite succession in the name of his daughter.
This angle is an after thought and just to create
more a serious look to the entire prosecution
story. It is unthinkable that PW-1 who is father
of seven sons and daughters would spend this
hefty amount only in the marriage of one
daughter, seems to be highly improbable and
unrealistic.

19. It is further pointed out by Sri Naqvi,
learned Senior Counsel that those two sale
deeds dated 14.06.2011 and 16.03.2012 were
never produced by the prosecution witness or
exhibited during the trial by the prosecution
casting a serious doubt about the authenticity
and veracity of this submission.

20. During the cross examination, it has
been accepted by PW-1 that regarding the
alleged incident of fire they have received
information around 12 in the day on
29.07.2012 and reached to the hospital at 3.45
p.m. where they met their daughter. She was
in the emergency ward but none of her in-laws
were present along with her. She remain there
in the hospital for three days. PW-1 has denied
the suggestion that she has received the
thermal injuries while cooking meals. Besides
this, he also pleaded ignorance as to who has
got her admitted in the hospital.

21. Learned Senior Counsel has drawn
the attention of the Court to the injury report
which was duly exhibited and annexed as
Page-6 of the paper book that as per the
doctor opinion that she has sustained a 40%
thermal burn injury over anterior part of her
her body and it is her own dewar Zakir Ali
who has got her admitted in the hospital at
the first stroke.

22. From the testimony of PW-4
Rajkumar Agarwal in which he has
categorically stated that it was Zakir
1606 INDIAN LAW REPORTS ALLAHABAD SERIES
(Dewar), who carried his Bhabhi (Mst.
Nazrana) to the hospital. Though the injured
Mst. Nazrana in her examination-in-chief
have categorically stated that Zakir (Dewar)
has poured oil upon Mst. Nazrana (injured)
and her husband (Sajid) has set her ablaze.
The allegation upon Zakir and his later
conduct to carry her Bhabhi (Mst. Nazrana)
to the hospital are incompatible. In this
regard, learned counsel for the appellant has
relied upon the judgement of Hon'ble Apex
Court in the case of Ram Das Vs. State of
Maharashtra reported in AIR 1977 (SC)
1164 , The relevant extract of the judgement
is quoted herein below:-

"9. The next circumstance on
which great reliance was placed by the
High Court was the fact that the accused
immediately took the deceased to the Civil
Hospital which, according to the High
Court, was meant merely to cloak his guilt.
We are indeed surprised that the High
Court should have taken such a perverse
view of the matter. If the accused had
himself
administered
the
poison
to
Shantabai he would be the last person to
take her to the Hospital and thereby take
the chance of the deceased being cured or
of regaining consciousness, in which case
the deceased would have implicated the
appellant The conduct of the accused in
rushing her to the hospital is more
consistent with his innocence rather than
with his guilt. The High Court instead of
taking the circumstance as proving the
good faith and bona fides of the accused
drew the opposite inference. Furthermore,
assuming that the High Court was right
and that the accused went to the Hospital
merely to cloak his guilt this may be one
inference possible, but the other inference
which is-equally reasonable was that the
accused having found that his wife had
taken poison and attempted to commit
suicide took her to the hospital immediately
so that she could be given proper medical
aid and her life may be saved. In this state
of the evidence, the High Court violated the
rule of appreciation of circumstantial
evidence in accepting only that inference
which went against the accused and not
entertaining the inference which proved
his innocence and which, in our opinion,
was more probable than the other."

In the light of the above observation
made by the Hon'ble Apex Court, the past
conduct of the accused appellant carries
weight and his innocences in the offence
cannot be ruled out. It is further submitted
that from the testimony of the injured Mst.
Nazrana, it is clear that her Dewar (Zakir)
has allegedly actively participated in setting
her ablaze but as mentioned above her
Dewar (Zakir) carried her to the hospital and
got her admitted in the Emergency Ward,
which clearly indicates that he would be the
last person who took her to the hospital and
thereby take a chance of injured being cured
or of regaining consciousness, in which
case, the injured would have implicated the
appellants.
Towing
the
aforesaid
observation made by Hon'ble Apex Court in
the case of V.L.Tresa Vs. State of Kerala
reported in (2001)3 SCC 549. The relevant
extract of the judgement is quoted herein
below:-

"The learned Sessions Judge
however, came to a definite conclusion that
the prosecution has not been able to adduce
sufficient and reliable evidence that it was
the accused and the accused alone who
inflicted the fatal injury on Vincent
resulting in his death. The Sessions Court
reminding itself of the golden principles for
having a proof beyond all reasonable doubt
recorded: it cannot also be said that the
evidence adduced by the prosecution will
conclusively show that Vincent was a
5 All. Sajid Vs. State of U.P.
1607
person of expensive habits or squandering
money or was threatening or ill treating the
wife and on a consideration of the totality
of the evidence, came to the finding as
noticed above against the prosecution.
Three decisions of this Court namelyKali
Ram v. State of Himachal Pradesh[1973
SCC (Crl.)1048]:Ramdas v. State of
Maharashtra
[1977
SCC
(Crl.)254]
andPrem Thakur v. State of Punjab[1983
SCC Crl.) 88] were strongly relied upon in
arriving at the opinion that the accused
cannot be found guilty of murdering her
husband."

23. Now coming to yet another
testimony, of Mst. Nazrana, PW-2, who
claims herself to be the injured witness. She
is now a re-married woman with some other
person and mother of two kids. In the
examination-in-chief she has reiterated the
version of the FIR with the additional
allegation of demand of dowry in the shape
of Rs. 2 lacs and a four wheeler and
thereafter she has underline and reiterated
the testimony of her father, that after, 14-15
days of her marriage, her father has
purchased a plot of 90 yards costing Rs. 1.90
lacs, thereafter her in-law remained silent
for 5-6 months, which they again started
demanding Rs. 2 lacs and a four wheeler,
again his father has purchased yet another
plot of 200 yards at village Vait costing to
Rs. 50,000/-. On the fateful day i.e.
29.07.2012, they have committed maar-peet
with her around seven in the morning and she
has informed her father about the incident. His
father responded to the call and thereafter tried
to pacify the situation. While she was washing
cloths, her fahter-in-law came to her on the
false pretext, that her child is crying as soon as
she entered into the room Nazakat and Smt.
Jaitoon caught her hold of her and Devar Zakir
poured kerosene oil upon her and Sajid lit the
match to eliminate her. On raising the alarm
the co-villagers assembled and extinguished
the fire. Thereafter she was extended threat by
her in-laws for a dire consequences, if she
reveals anything to her father. She has been
treated for three days at Meerut Hospital and
thereafter shifted to Safdarganj Hospital at
Delhi. Her father has taker her to Safdarganj
Hospital, Delhi. The entire medical expenses
were borne by her father.

24. In her cross-examination, she states
that she is seven brothers and sisters and out of
which she is eldest one. Her father was a motor
mechanic and she is unaware of about his
income. She states that there was no demand
of any dowry or either prior to or during her
marriage, but after the marriage they have
started demanding additional dowry. She
further states that at her in-laws place there is
a manual furnace (Choolha) and during the
interruption of electricity Dhibri is being used.
The oil was poured anterior side of her body
under the neck causing burn to the entire area
as well as her hand and neck. After the incident
she became unconscious. So far as the
purchase of plots are concerned, in her
examination-in-chief, she has revealed this
fact to the court, for the first time. Neither in
the FIR nor in 161 Cr.P.C. statement she has
made any whisper about this angle of the story.
When I.O. came to her, she was perfectly
sound and healthy mental stage but she did not
disclose this fact to the I.O.. It is further
mentioned that during the subsistence of her
marriage neither she has shared any complaint
with her parent nor any complaint was lodged
in this regard to the police.

25. In her cross-examination, she
has denied to the suggestion that she was
exerting pressure upon her husband. She
is unaware of the fact that Sajid has filed
any suit for cancellation of sale deed
executed by her regarding her 200 yards
of land.
1608 INDIAN LAW REPORTS ALLAHABAD SERIES

26. PW-4 Dr. Rajkumar Agarwal, who
treated the injured in his examination-inchief states that on 29.07.2012 he was
posted as Physician at Arjun Hospital, LBlock, Meerut and at that time around 3.45
p.m. Smt. Nazrana came to her with thermal
burn injury of 40% anterior part of the body
over her chest and abdomen and he has
treated her. In his cross examination, he
states that she was carried to Arjun Hospital
by her own dever Zakir, one of the accused.
There is no reference in the record as to how
many days she was in the hospital or she was
stinking with the kerosene oil or any other
oil. She was not talking and under the semi
conscious condition. Her hairs were not
burnt and as mentioned above, she was
burned about 40%. Responding to the
suggestion, if somebody in the stage of
heated passion one can pour oil upon her on
her own and set herself to fire. Various
formal witnesses both the I.Os. were
examined and they have narrated the
investigation.

27. After closing the prosecution
witnesses the accused Sajid has recorded his
statement under Section 313 Cr.P.C. in which he
states that he is also a labourer and to the question
that he has committed the offence of setting her
wife ablaze narrating the entire incident about
the plot purchase, demand of four wheeler and
Rs. 2 lacs and thereafter setting her ablaze. He
categorically denied the allegation levelled upon
her by making a mention that it is he, who have
purchased the plot for her and the entire sale
consideration was made by him or by his
Sasural. He has further denied that no body has
set her ablaze as alleged in the FIR. It was her
parent and in-laws got her admitted in the
hospital. He and his father Nazakat was not
present at the time of incident.

28. Responding to the allegation that
after 14-15 days of her marriage, her father
has got purchased ad-measuring 90 yards
after paying sale consideration of Rs. 1.90
lac/- and second plot of 200 years at village
Vait for the amount of Rs. 50,000/-. He has
denied point blank that he has ever
committed any dowry related harassment
with her. Sajid has purchased afore
mentioned two plots in the name of his wife
after taking the benefit of Govt. Policy that
if any immovable property is purchased in
the name of his wife, there is a discount of
2% in Stamp Duty in the sale deed. He has
not a author of the incident and under the
pressure of her father, the present FIR came
into existence. It was further revealed by
Sajid accused that since the financial
condition of her father-in-law was not good
and therefore, his wife Nazrana have sold
out the plot ad-measuring 200 yards to some
other person in a clandestine way. After this
fact came to the knowledge he has filed a
sale cancellation suit before the competent
civil court. Almost on the same lines
Nazakat Ali, Mst. Jaitoon and Zakir
recorded their respective 313 Cr.P.C.
statement.

29. And lastly Sajid Ali, DW-1 son of
Wakila and Matloob, DW-2 this statement
were recorded. The Court has gone through
the testimonies of DW-1 and DW-2, which
is literally an eye opener. Sajid in his
testimony states that her mother Wakila
agreed to sell out a plot over khasra no. 756
with Sajid, the accused for a sale
consideration of Rs. 50,000/- and this
amount was received to him on behalf of
Wakila. Since there is a discount of 2% in
the sale deed as p er government policy, if
the sale deed is executed in the name of a
lady. Under the circumstances Sajid has got
the sale deed executed in the name of his
wife Nazrana. The original sale deeds were
produced which was duly identified by him
that he identified the thump impression and
5 All. Sajid Vs. State of U.P.
1609
photograph of her mother Wakila. He further
states that the sale deed was executed right
in front of him and this sale deed was
executed on 16.03.2012 in favour of
Nazrana by Wakila after taking the sale
consideration of Rs. 50,000/- from Sajid.

30. Yet another DW-2 Matloob in his
testimony in which he has clearly indicates
that the family unit of Sajid and Nazrana is
quite distinct and different whereas his
father resides in some other court. It is
further states Sajid have purchased a plot in
the name of his wife Nazrana about 15-20
days after his marriage and second plot was
purchased after 6-7 months of marriage. He
has never any quarrel between Sajid and
Nazrana or by her in-laws. DW-2 Matloob
resides in neighbourhood of Sajid. It is also
borne out from the testimony of DW-2 that
this division of family occurred 15-20 days
after the marriage. Though the prior to
marriage it was a joint family. He has lend
Rs. 30,000/- to Sajid to purchase a plot.

31. After the conclusion of the
prosecution witness, 313 Cr.P.C. statement
and the testimony of the defence witnesses
was over, the judgement under challenge for
judicial scrutiny was pronounced on
12.02.2019.

32. We have gone through the every
word of the judgement.

33.

The
moot
point
of
the
determination of the present appeal is that,
there is paradigm shift in the stand of the
prosecution with ulterior motive and
purpose. There was not a whisper of the
alleged purchase of plot in the FIR nor 161
Cr.P.C. statement. For the first time, this
angle
was
introduced
during
the
examination-in-chief of the prosecution
witnesses, that too half heartedly. Neither
the sale deed of alleged plot purchased by
the informant's Shahjad Ali was produced
nor financially he was capable of purchasing
two plots successively, keeping in view his
meagre earning of Rs. 18,000-20,000/- per
month when he has already seven sons and
daughter to his responsibility. This fact itself
indicate the hyperbole used by the
prosecution without any cogent basis or
reason.

34. Per contra DW-1 Sajid Ali and
DW-2 Matloob were examined and they
have produced Paper No.37 and Paper No.
38, their identity card, Paper No. 39 Kha,
identity card of Smt. Nazrana and Paper No.
41 original sale deed dated 16.03.2012 and
Paper No. 42 Original Sale deed of
14.06.2011 in favour of Nazrana. Besides
this, Paper No. 43 Ka was certified copy of
sale deed and Paper No. 44 Kha was a
certified copy of sale deed dated 06.10.2012
was also produced. In addition to above,
Paper No. 45 Kha, the document of OS No.
1 of 2016 (Sajid Vs. Smt. Nazrana) and Suit
No. 155 of 2014 (Sajid Vs. Smt. Nazrana)
were produced as a defence document.
These document itself shows and clearly
indicates that these two plots were
purchased by Sajid, husband in the name of
her wife Smt. Nazrana. There is nothing on
record to establish the fact that the amount
was given by the first informant Shahjad Ali
as claimed by him. The learned trial judge
has in paragraph 16 of the judgement have
wrongly interpreted that these testimonies
and after holding the absurd analysis came
to a wrong conclusion.

35. It is a judicial propriety that the
judge should decide a case with a open mind
and not with a pre-conceived notion and
thereafter, twist the testimonies whimsically
to justify his conclusion. In the instant case,
the learned trial judge has conducted an
1610 INDIAN LAW REPORTS ALLAHABAD SERIES
exercise of pick and have chosen those facts,
which suitable and inconsonance with predetermined conclusion to book the husband
Sajid. This would lead to grave injustice to
the husband.

36. In the instant case in paragraph 16,
the learned trial judge have elaborately
discussed the testimonies of DW's and the
sale deed etc. into account but at Page 17 he
has concluded that few days after the
marriage Nazakat, Smt. Jaitoon and Zakir
were separately resided and since they are
separately residing, thus there is no question
of demanding the additional dowry by them.
To this extent, the conclusion given by the
trial court is correct but later on, the learned
trial court has wrongly interpreted after
reading the testimony of DW-1 and DW-1
that these two plots were not purchased by
Sajid, the husband ignoring the original sale
deed which is on record.

37. In paragraph 17 of the judgement
the learned trial judge after thrashing the
various prosecution witnesses have come to
the wrong conclusion that it was the Sajid,
who poured the kerosene oil upon her wife
and set her ablaze. This finding is tangent to
the testimony of PW-4 Dr. Rajkumar
Agarwal as he did not record any smell of
kerosene oil upon the body of the injured.

38. Shahjad Ali and his daughter
Nazrana dishonestly inserted the story of
purchase of plot in the name of his daughter.
Neither he has produced any sale deed or
money transaction to establish this fact.
Since those sale deed in the name of
Nazrana by the two different sellers, the
informant assumes this credit to him and
painted this picture.

39. The entire controversy has erupted
that Mst. Nazrana sold out one of the plot
purchased by the appellant in her name and
the appellant has filed two civil suit before
the concerned competent civil court to
declare the said sale deed null and void. The
O.S. No. 155 of 2015 is pending before Civil
Judge (S.D.) Hapur filed on 20.03.2014 and
another sale deed dated 09.07.2012 was
filed a suit no. 01 of 2016 (Sajid Vs.
Nazrana) pending in the court of Civil Judge
(S.D.), Hapur was sold by PW-2 to whom
the plot in question was purchased by the
appellant
on 14.06.2012. Except
the
testimony of Nazrana there is no other
supportive evidence against PW-1, who is
not an eye witness. At the cost of repetition
this theory of sale and purchase of plot has
surfaced for the first time in the testimony of
father Shahjad Ali, PW-1 and supported by
his daughter Mst. Nazrana, PW-2.

40. The prosecution has cleverly hide
the subsequent progress in the case when
Nazrana sold out both the plots in a
clandestine way and her husband have
initiated the proceeding for cancellation of
those sale deeds executed by Nazrana in
favour of subsequent purchaser. Both the
suit are pending for consideration. This
incident has triggered the deep rooted
discord and misunderstanding between
husband and wife. Both the father and
daughter have tried to twist and turn the
facts of the case mercilessly, resultantly the
entire testimony seems to be untrustworthy.

41. Admittedly, the only witness is the
injured herself. Initially, the theory of a Car
& Rs. 2.00 lacs were asked, but thereafter
yet another angle of purchase of plots were
added for the first time during trial. It is
worthwhile to mention here that the lady
Nazrana, the injured have conveniently
digested the subsequent development i.e.
one sold out the plot to some other person
without taking her husband (Sajid) into
5 All. Sajid Vs. State of U.P.
1611
confidence. This is the sole reason that Sajid
have filed two suits for cancellation of those
sale-deed, making Nazrana, the injured as
defendant. Those proceedings are pending
consideration.

42. The possibility of self immolation
by Nazrana on account of the said civil
proceedings cannot be ruled out completely.
Out of sheer disgust, she might have poured
oil upon her and set herself ablaze.

43. While deciding the case relating to
the dowry harassment or even dowry death,
the law courts are facing a novel feature,
there is a exorbitant demand of the
additional dowry by the accused persons to
give a more serious and grim look to the
entire incident. While jotting down the FIR
the informant often oblivious of his own
financial condition as well as the financial
condition of his counter part. The Court is
flabbergasted to see this new development
in the recent days, it is unthinkable rather it
would be mockery, that a person would
demand a BMW or Audi Car from his
counter part, who is a small roadside vendor
or have meagre income. There has to be a
financial compatibility with the demand
made by the accused persons qua with his
earning and financial status.

44. In the instant case as mentioned
above, Shahjad Ali is a sole bread earner
who in his own admission earns Rs. 18,00020,000/- per month irregularly with ten
mouths
to
feed
by
him.
Under
circumstances,
he
is
benevolently
purchasing plots after the plots in the name
of her daughter, which is unthinkable and
cannot be purchase with known source of
income.

45. Learned Trial Judge in paragraph
16 and 17 of the judgement qualitatively
selected those part of the testimonies, which
suits their legal judicial conscious and book
the husband Sajid for the offence.

46. Assessing the entirety of the
circumstances of the case, we find that the
judgement and the sentence awarded to
Sajid is perse erroneous and lopsided and
thus we have got no hesitation to quash the
order of conviction and sentence awarded by
the learned trial court vide judgement and
order dated 12.02.2019. The appellant Sajid
is set at liberty, if not wanted in any other
case, the charges against him is hereby
discharged and the sureties are also
discharged, accordingly, the appeal stands
ALLOWED.

Criminal
Appeal
(U/S
372
Cr.P.C.) No. 106 of 2019 (Shahjad Ali Vs.
State of U.P. and others)

(Order
on
Application
for
Special Leave to Appeal)

47. The aforesaid appeal is concerned,
we have elaborately discussed and thrashed
the entire evidence material and the
judgement and we find that the learned trial
judge has rightly arrived the acquittal
Nazakat, Smt. Jaitoon and Zakir from the
charges under Section 498A, 307/34 IPC
and Section 4 D.P.Act., the reasoning
adopted by the learned trial judge is correct
and do not warrant any interference in
exercise of power under Section 372 Cr.P.C.,
accordingly, the application for special leave
to appeal is hereby by rejected.

(Order on Memo of Criminal
Appeal)

48. Since the special leave to appeal is
hereby rejected, the criminal appeal under
Section
372
Cr.P.C.
also
stands
REJECTED.
1612 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2024) 5 ILRA 1612
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.05.2024

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Criminal Misc. Anticipatory Bail Application U/S
438 CR.P.C. No. 4188 of 2024

Sunil Kumar ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Nipun Singh, Vivek Chaturvedi

Counsel for the Opposite Party:

(A) Criminal Law - The Code of Criminal
Procedure,
1973
-
Section
438
-
anticipatory bail - Exceptional or Special
Circumstances - High Court and Court of
Session have concurrent jurisdiction for
anticipatory bail under Section 438 Cr.P.C.
- strong, cogent, compelling reasons and
special
circumstances
must
exist
in
justification
of
High
Court
being
approached first - Court must consider
these factors in each case, ensuring that
the available avenues are exhausted
before proceeding - Indian Penal Code,
1860 - Sections420, 467, 468, 47 &, 120B
(Para - 24)

Applicant being a public servant - no sanction to
prosecute u/s 197 Cr.P.C. - no criminal
antecedents to his credit. (Para - 27)

HELD:- An exception may be drawn in the
instant case to entertain the anticipatory bail
application directly by this Court without
taking recourse to the provision u/s 438
Cr.P.C. at the District and Sessions Court.
Applicant entitled to anticipatory bail in view
of law laid down by Supreme Court in case of
Sushila
Aggarwal
Vs.
State
(NCT
of
Delhi).(Para - 26,27)
Anticipatory bail application allowed. (E-7)

List of Cases cited:

1. Arnesh Kumar Vs St. of Bihar, (2014)4SCC 273

2. Md. Asfak Alam Vs St. of Jharkh. & anr. ,
(2023)8SCC 632

3. Shivam Vs St. of U.P. & anr. , AIROnline 2021
All 484

4. Vinod Kumar Vs St. of U.P. , (2020) 2 All Cri. R
1562

5. Ankit Bharti Vs St.