Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(All) 170

IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
SYED AFTAB HUSAIN RIZVI, J.
Mohammad Sadik – Appellant
Versus
State of U.P. and Others – Respondents
Criminal Revision No. 2646 of 2014
Decided On : 28-01-2022

Advocates:
Advocate Appeared:
For the Appellant : Viveka Nand Rai.
For the Respondent: Surendra Kumar Tripathi.

Point of Law : 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.

Headnote:
Indian Penal Code, 1860 - Section 406 - Criminal Procedure Code, 1973 - Section 204 - Evidence Act - Dowry Prohibition Act - Section 6 - Criminal breach of trust - Documentary evidence - Dowry to be for the benefit of the wife or her heirs - It is clear that complainant (revisionist) to prove his case has examined three witnesses - As documentary evidence a list of articles alleged to be given at time of marriage and photocopy of receipt of motorcycle have also been filed - List contains description of various articles, some in print form and some hand written and it contains signature of Hasmuddin.
Finding of the Court:
From the provisions of Section 6 of Dowry Prohibition Act it is clear that complainant was entitled to receive possession of articles which were given at the time of marriage and were in possession of the accused - It is also not clear that who has prepared this list and who has hand written the ornaments described in 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 - 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.
Result: Criminal Revision is dismissed.

JUDGMENT :

SYED AFTAB HUSAIN RIZVI, J.

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 Sadik (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 CT-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 Sadik 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 m