CRL. A. NO. 972 OF 2007                                                                                                                                                                    REPORTABLE

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  PART-II

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 972 OF 2007

SAMEDEEN ..... APPELLANT

VERSUS

STATE OF UTTAR PRADESH ..... RESPONDENT

O R D E R

1.     This appeal arises out of the following  

facts:-

Islaman, the deceased herein, daughter of P.W. 4  

–  Azeez  had  been  married  to  Samedeen,  appellant,  

allegedly  in  the  year  1988.  As  per  the  prosecution  

story, the accused were not happy with the dowry that  

had been given and on several occasions the deceased  

had complained to her parents  that she was being ill-

treated both verbally and physically.  As a consequence  

of this ill-treatment, a Panchayat had been called and  

the accused had undertaken that they would not harass  

her any further.  The story, further, goes that despite  

the assurances held out by the accused with regard to  

their behaviour with the deceased, the ill-treatment

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continued  and  about  ten  days  before  the  incident,  

Islaman had returned to her parents' home, but on the  

intervention of the members of the Panchayat, however,  

she had returned to her in-laws' home a few days later.  

On 26th September, 1994, Samedeen, the appellant, and  

Suleman, his brother came to the house of P.W. 4 -  

Azeez and told to him that Islaman was missing.  Azeez,  

already suspicious about the conduct of the accused,  

detained  them  in  his  house  and  informed  the  Shahur  

Police about the fact that his daughter was missing but  

no action was taken by the Police on that complaint.  

On the contrary, on 27th September, 1994, one Ravindra  

Kumar lodged a report with the Adarsh Mandi, Shamli  

Police Station through Exhibit Ka.1 that the dead body  

of the wife of Samedeen was lying in his sugarcane  

field.  On receiving this information, a case under  

Section 302/201 was registered at the Police Station  

against unknown persons.  The prosecution story further  

goes that dissatisfied with the steps that the police  

had taken on the complaint filed by him, Azeez also  

made  a  written  complaint  to  the  Superintendent  of  

Police,  Muzaffar  Nagar,  Exhibit  Ka.2  on  the  27th  

September,  1994,  making  allegations  against  Samedeen  

and his family.  On the completion of the investigation  

a charge sheet under Section 304B/34 read with Section

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498A of the IPC was filed against  Suleman and Samedeen  

aforesaid, a third brother Subedeen and their parents  

Jahoor Hasan and Vakeela and the matter was brought to  

trial.  The Additional Sessions Judge, Muzaffar Nagar,  

in the course of his judgment dated 1st March, 2001  

held that the date of marriage of Samedeen with Islaman  

was uncertain  and in this view of the matter, the  

question as to whether the death had taken place within  

7 years of marriage or that the demand for dowry had  

been made soon before death was again not proved on  

record.   The  Court  further  held  that  the  complaint  

Exhibit Ka.2 was an after thought and had obviously  

been created to fill up a lacuna in the prosecution  

story and the evidence of P.W 4 and P.W. 5, (the latter  

being the brother of the deceased) with regard to the  

demand for dowry etc. was not worthy of belief.  The  

Court further opined that the version given by P.W. 4  

with regard to the meeting of the Panchayat was again  

not  proved  on  record  and  having  held  to  the  above  

effect acquitted all the accused. The State of U.P.  

thereafter filed an appeal against acquittal before the  

Allahabad High Court.  The High Court in the course of  

its judgment observed that the marriage had taken place  

on the 22nd  October, 1988 as per the statements of  

P.Ws. 4 and 5,   and as the death had occurred within 7

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years thereafter i.e. on 26th September, 1994 and the  

statements of P.Ws. 4 and 5 with regard to the demand  

of  dowry  soon  before  the  death  read  with  the  

presumption  raised  against  an  accused  under  Section  

113B of the Evidence Act, the case against the husband  

i.e present appellant had been proved on record and  

having held as above reversed the judgment of the trial  

court qua the appellant herein but dismissed the State  

appeal with regard to the other four accused.  Samedeen  

is  the  solitary  appellant  before  us  after  special  

leave.  

2. We  have  heard  the  learned  counsel  for  the  

parties and gone through the record very carefully.

3. At the very outset, we must emphasise that  the  

High Court appears to have ignored the basic premise in  

law that if the trial court had rendered its judgment  

on a proper appreciation of the evidence and that the  

findings arrived at were possible thereof and that the  

judgment of the trial court could not be said to be  

perverse, no interference was called for.  A perusal  

of the judgment of the trial court reveals that its  

judgment cannot by any stretch of imagination be said  

to be perverse.  The trial court has considered the  

various facets of the case which had created a doubt  

about the prosecution story inasmuch as that there was

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uncertainity about the date of the marriage, there was  

no evidence of a demand for dowry soon before the death  

or even long before that date and that the story given  

in the ocular evidence  by P.W. 4 and P.W. 5 was a  

clear after thought as the issue with regard to the  

dowry or the ill-treatment meted out to the deceased  

had not been referred to by them in their statements  

under Section 161 Cr.P.C., even though the  statement  

of P.W.-5 Mustakeen the deceased's brother had been  

recorded about 40 days after the incident.  It is also  

significant that the High Court has chosen to believe  

the prosecution story with regard to only one of the  

five accused.  From a perusal of the evidence in this  

case it is quite clear that there was absolutely no  

distinction in the role given to all the five accused  

and the allegations made against them were more or less  

identical.  We are, therefore, unable to understand as  

to how the High Court was in a position to appreciate  

the evidence in a way whereby the appellant has been  

convicted and the appeal of the State dismissed qua  

four persons.  The reasons given by the High Court that  

as the couple i.e. Islaman and Samedeen,  were living  

together made their case distinct and different vis-à-

vis the other accused must be rejected for the reason  

that in a case of demand for dowry, the couple living

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separately would not be the only determining factor and  

what is to be seen is the over all nature and quality  

of  the  evidence.   As  already  mentioned  above,  the  

evidence with respect to all the accused is more or  

less identical and the High Court was, therefore, not  

justified in making a distinction between the two sets  

of accused.

4. We have also  gone through the merits of the  

case on the basis of the arguments advanced by the  

learned counsel for the parties.  It will be seen that  

one of the primary ingredients for conviction under  

Section 304B of the IPC is that a demand should be made  

soon before the death.  No such demand is discernible.  

We have also gone through the document Exhibit Ka.2  

which is a copy of the complaint allegedly made by P.W.  

4  to  the  Superintendent  of  Police,  Muzaffar  Nagar.  

This document had been produced before the trial court  

for the first time on the date when the evidence was  

recorded  i.e. in August, 1999, i.e. five years after  

the incident.  We are unable to  appreciate as to how  

this  document  was  taken  into  evidence  as  it  was  

secondary evidence and therefore required to be proved  

under Section 65 of the Evidence Act.  Even otherwise,  

the story projected therein appears to be unbelievable  

and is clearly contradicted by the statement made by

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Azeez _ P.W. 4 in the course of his testimony.  It is  

indeed very significant that a question was pointedly  

put to P.W. 4 in his cross examination whether the  

document  produced  by  him  had  been  prepared  in  the  

office  of  his  Advocate  a  short  while  earlier.   He  

persistently refused to answer the question and when  

the trial judge examined the document he found that the  

ink on the thumb impression was still wet.  It is,  

therefore, obvious that Exhibit Ka.2 was a document  

which had been created on the day when the evidence was  

being  recorded  and  the  finding  of  the  trial  court,  

therefore,  that it is a forged document, was fully  

justified.  Furthermore, a perusal of Ex. P2, the FIR  

reveals  that  the  incriminating  circumstances  against  

the accused have not been spelt out.  For example,  

there is no reference to a demand for dowry  or to the  

fact that there had been ill-treatment of Islaman on  

account of the inability of her parents to meet the  

dowry demands.  The statement of P.W. 5 is equally  

ambivalent.  Though his statement under Section 161  

Cr.P.C. had been recorded 40 days after the incident he  

had  even  then  made  material  improvements  in  his  

statement in Court exactly in the manner as in the case  

of P.W. 4 Azeez.  We are, therefore, of the opinion  

that the trial court was fully justified in observing

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that the statements of these witnesses could not be  

believed.  In the light of the fact that a demand for  

dowry has not been proved to be made shortly before the  

death  which  happened  on  27th September,  1994,  the  

presumption  under  Section  113B  of  the  Evidence  Act  

which  is  to  be  taken  against  an  accused,  is  not  

available to the prosecution.   

5. We, accordingly, allow the appeal and order the  

acquittal of the appellant.  As the appellant is in  

jail he is directed to be released forthwith if not  

wanted in any other case.    

    ..................J      [HARJIT SINGH BEDI]

    ..................J      [J.M. PANCHAL]

NEW DELHI NOVEMBER 17, 2009.

CRL. A. NO. 972 OF 2007                                                                                                                                                                    REPORTABLE

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        PART-I

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 972 OF 2007

SAMEDEEN ..... APPELLANT

VERSUS

STATE OF UTTAR PRADESH ..... RESPONDENT

O R D E R

    We have heard the learned counsel for the parties.

Vide  our  separate  reasoned  order,  we  have  

allowed the appeal and set aside the conviction of the  

appellant and ordered his acquittal.   

It  is  stated  by  Mr.  S.S.  Nehra,  the  learned  

counsel for the appellants that the appellant is in  

jail. We direct that he be set at liberty forthwith if  

not  required  in  connection  with  any  other  case.    

The reasoned order to follow.   

    ..................J      [HARJIT SINGH BEDI]

    ..................J      [J.M. PANCHAL]

NEW DELHI NOVEMBER 17, 2009.