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Mohammad Sadik Versus State Of U.P. And 2 Others

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Mohammad Sadik Versus State Of U.P. And 2 Others [Criminal Revision No. – 2646 Of 2014]

Judgment

1. Heard learned counsel for the revisionist and learned A.G.A. for the State-respondent.

2. This criminal revision is directed against the judgment and order dated 07.08.2014 passed by Additional Sessions Judge, Court No.1, District Agra, in Criminal Appeal No.340 of 2013, arising out of judgment and order passed by Additional Chief Judicial Magistrate, Agra, Court No.4, in Complaint Case No.46 of 2010 (Mohammad Sadik Vs. Hasmuddin and others) dated 18.10.2013, under section 406 IPC, Police Station Shahganj, District Agra, acquitting opposite party nos. 2 and 3 from the charges under section 406 IPC. The appellate court has dismissed the appeal filed against the aforesaid judgment and order of acquittal.

3. In brief, the facts are that the complainant/revisionist Mohammad Saddik (wrongly mentioned as Mohammad Sadik in revision) filed a complaint before the concerned Magistrate, alleging therein that he performed marriage of his daughter Shabana with opposite party no.1 Hasmuddin on 08.11.2005. He has given ornaments, wearing apparels etc. at the time of marriage and spent Rs.3 lacs on it. Opposite parties also demanded a motorcycle. On 09.10.2005 complainant purchased one C.T.-100 motorcycle for Rs.32,300/- in the name of opposite party no.1 on his saying that he will return it whenever asked by the complainant. Articles as mentioned in the list attached with the complaint, were given with condition that it will come in the use of the daughter of complainant and if opposite parties ill treat her, then they have to return all the things.

It is further alleged that sometime after the marriage the opposite party no.1 and his family members, started making demand of Rs.1 lacs and on refusal they burnt to death the daughter of complainant by pouring kerosene on her. Complainant asked the opposite parties to return the motorcycle and other articles, but they refused. Complainant also sent two notices through registered post. Complainant also gave an application to the police, but neither any action was taken nor articles were returned. The learned Magistrate summoned the opposite parties under section 204 Cr.P.C. to face trial for charge under section 406 IPC.

After framing charge and taking evidence the learned Magistrate vide its judgment and order dated 18.10.2013 held that opposite parties/accused Hasmuddin and Shamshuddin are not guilty for the charge under section 406 IPC and acquitted them. Aggrieved by the aforesaid judgment and order of acquittal the complainant/revisionist filed Criminal Appeal No.340 of 2013 (Mohammad Saddik Vs. State of U.P. and others), which was dismissed by the Additional Sessions Judge, Court No.1, District Agra on 07.08.2014.

4. Learned counsel for the revisionist contended that the ornaments and other articles and motorcycle given at the time of marriage by the revisionist to his daughter are the stridhan of his daughter. The husband of his daughter Hasmuddin is living in a joint family with his parents and entire stridhan is still in possession of the opposite parties and they have refused to return it. The courts below have failed to consider that there is specific allegation of entrustment to the opposite parties exclusively, but both the courts below have failed to consider this aspect and have wrongly acquitted the opposite parties. After the death of victim her parents are entitled to receive stridhan and refusal in this respect will be an offence under section 406 IPC. Learned counsel for the revisionist further contended that the order of acquittal of opposite parties is illegal, unjustified and contrary to the facts and evidences on record and also against the settled principles of law.

5. From allegations made in the complaint it is clear that father of the deceased has filed this complaint to get back the ornaments and various other articles given at the time of the marriage of his daughter who had died unnatural death within seven years of her marriage and for which the opposite parties have been charged for dowry death. It is alleged that the articles are in possession of the opposite parties and they have refused to return it.

6. Section-2 of the Dowry Prohibition Act defines dowry and provides as follows:-

“2. Definition of “dowry”.– In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly-

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person;

at or before * [or any time after the marriage] ** [in connection with the marriage of the said parties, but does not include] dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

Explanation 1.–[***]

Explanation II.–The expression “valuable security” has the same meaning as in Section 30 of the Indian Penal Code (45 of 1860).”

7. Section-6 of the Dowry Prohibition Act, provides as follows:-

“6. Dowry to be for the benefit of the wife or her heirs.–(1) Where any dowry is received by any person other than the woman in connection with whose marriage it is given, that person shall transfer it to the woman–

(a) if the dowry was received before marriage, within [three months] after the date of marriage; or

(b) if the dowry was received at the time of or after the marriage, within [three months] after the date of its receipt; or

(c) if the dowry was received when the woman was a minor, within one year after she has attained the age of eighteen years, and pending such transfer, shall hold it in trust for the benefit of the woman.

[(2) If any person fails to transfer any property as required by sub-section (1) within the time limit specified therefor, [or as required by sub-section (3),] he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years or with fine [which shall not be less than five thousand rupees, but which may extend to ten thousand rupees] or with both.]

(3) Where the woman entitled to any property under sub-section (1) dies before receiving it, the heirs of the woman shall be entitled to claim it from the person holding it for the time being.

[Provided that where such woman dies within seven years of her marriage, otherwise than due to natural causes, such property shall.–

(a) if she has no children, be transferred to her parents; or

(b) if she has children, be transferred to such children and pending such transfer, be held in trust for such children.]

[(3-A) Where a person convicted under sub-section (2) for failure to transfer any property as required by sub-section (1) [or sub-section (3)] has not, before his conviction under that sub-section, transferred such property to the woman entitled thereto or, as the case may be, [her heirs, parents or children] the Court shall, in addition to awarding punishment under that sub-section, direct, by order in writing, that such person shall transfer the property to such woman or, as the case may be, [her heirs, parents or children] within such period as may be specified in the order, and if such person fails to comply with the direction within the period so specified, an amount equal to the value of the property may be recovered from him as if it were a fine imposed by such Court and paid to such woman or, as the case may be, [her heirs, parents or children].

(4) Nothing contained in this section shall affect the provisions of section 3 or section 4.”

8. Both the courts below have lost sight of the aforesaid relevant provisions and have not considered it. The trial court had acquitted the accused on the ground that articles were given to the bride and bride groom at the time of their marriage fro their joint use and so it does not come within the purview of section 406 IPC.

9. The Hon’ble Apex Court in the case of “Pratibha Rani, 1985 Cri LR 817, has made the following observations in Paras 20, 27 & 57:-

“we are clearly of the opinion that the mere factum of the husband and wife living together does not entitle either of then to commit a breach of criminal law and if one does then he/she will be liable for all the consequences of such breach. Criminal law and matrimonial home are not strangers. Crimes committed in matrimonial home are as much punishable as anywhere else. In the case of stridhan property also, the title of which always remains with the wife though possession of the same may sometimes be with the husband or other members of his family, if the husband or any other member of his family commits such an offence, they will be liable to punishment for the offence of criminal breach of trust under Sections 405 and 406 IPC. To sum up the position seems to be that a pure and simple entrustment of stridhan without creating any rights in the husband excepting putting the articles in his possession does not entitle him to use the same to the detriment of his wife without her consent. The husband has no justification for not returning the said articles as and when demanded by the wife.

10. The finding of the trial court that articles were given for the joint use and there is no entrustment in favour of the accused, hence no offence under section 406 IPC is made out, are illegal and against the law. The appellant court has also upheld the aforesaid finding without considering the relevant provisions of law.

11. From the provisions of section 6 of Dowry Prohibition Act it is clear that complainant was entitled to receive possession of the articles which were given at the time of marriage and were in possession of the accused. Refusal in this regard will attract section 406 IPC and if there is sufficient and realiable evidence on record then accused may be convicted.

12. From the perusal of the lower court record it is clear that complainant (revisionist) to prove his case has examined three witnesses, Mohd. Saddik (P.W.-1, complainant himself), Mohd. Israil (P.W.-2) & Wasim (P.W.-3). As documentary evidence a list of articles alleged to be given at the time of marriage and photocopy of receipt of motorcycle have also been filed. The list contains description of various articles, some in print form and some hand written and it contains signature of Hasmuddin. Complainant Mohd Saddik (P.W.-1) in his statement in chief has said that “whatever articles I have given to my daughter, was given to her, for her use. After preparing a list copy of it was given to the father-in-law of his daughter and signature of bride groom was obtained on it”. Wasim (P.W.-3) is the son of complainant has said that a list of articles was prepared and signature of Hasmuddin was obtained on it, while Mohd. Israil (P.W.-2) has said that a list of articles was prepared. None of the witnesses have identified the signature of accused Hasmuddin on the list. Witnesses have also not said that accused Hasmuddin has put his signature on the list before them. The description of ornaments is hand written while the description of other articles is in print form. The list bear only one signature that is of Hasmuddin and there is no signature of any witness on it. It is also not clear that who has prepared this list and who has hand written the ornaments described in the list. So from the analysis of the evidence produced by the complainant it is clear that the list has not been duly proved as per provisions of Evidence Act. So there is no cogent and sufficient evidence on the record to prove the charge under section 406 IPC and hence finding of acquittal recorded by the court below cannot be interfered.

13. From the aforesaid discussion it is clear that although the findings recorded by the court below that articles were given for their joint use and there is no entrustment and hence offence under section 406 IPC is not made out, are not according to law, but as there is no cogent and sufficient evidence on the record, the charge under section 406 IPC is not stands proved and finding of acquittal recorded by the trial court cannot be interfered with. The criminal revision lack merits and is liable to be dismissed.

14. Accordingly, the criminal revision is dismissed.

15. Lower court record be transmitted back to the concerned court below.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate (Lucknow)

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