Saeeda Khatoon Arshi vs The State Of Uttar Pradesh

Dr Dhananjaya Y Chandrachud, J 1 This appeal arises from a judgment of a learned Single Judge of the High Court of Judicature at Allahabad dated 12 April 2019. The High Court, while allowing an application filed by the second respondent under Section 482 of the Code of Criminal Procedure 1973 (“CrPC”), set aside an order dated 29 January 1 2019 passed by the Additional District and Sessions Judge - Fast Track Court No 1, Moradabad, summoning the second respondent under Section 319 of the CrPC. 2 The appellant is the mother of Juhi Arshi who died in her matrimonial home during the early hours of 10 June 2017. The second respondent, who was the spouse of the deceased, is alleged to have been the only other occupant of the matrimonial home on the date of the incident. On 12 June 2017, the appellant claims to have moved a First Information Report (“FIR”) at the Police Station Majhola, District Moradabad. According to the appellant, an FIR was eventually registered only on 14 June 2017 upon the intervention of higher officials. The contents of the FIR recorded that:

3 On 14 June 2017, Case Crime No 654 of 2017 was registered against an unknown person. Based on an application submitted by the applicant to the District Magistrate, Moradabad the body of her daughter was exhumed on 19 June 2017, and after an inquest proceeding, a post-mortem was carried out. However, the cause of death could not be ascertained as nine days had elapsed since the date of the death and the burial of the deceased. The post-mortem report recorded that:

4 The body was once again exhumed on 1 July 2017, and a post-mortem was conducted by a medical board constituted by the Chief Medical Officer, Moradabad. The medical board confirmed the findings of the earlier post-mortem that the body was in an advanced stage of decomposition. On 12 September 2017, a charge- sheet was filed under Section 173 of the CrPC against a person by the name of Manoj Shrivastav, who is alleged to have abetted the suicidal death of Juhi Arshi and thereby committed an offence under Section 306 of the Indian Penal Code 1860 (“IPC”). On 21 August 2018, the trial commenced before the Additional Sessions Judge – Fast Track Court – 1, Moradabad.

6 The appellant deposed in evidence as PW-1 on 5 October 2018. During the course of her evidence, the appellant stated that her daughter had been married to the second respondent in 2007. The appellant deposed that after the marriage, the second respondent and his family members demanded a house and mentally and physically tortured her daughter. The appellant deposed that in order to save the marriage of her daughter from collapsing, she had given a plot at Azad Nagar after constructing a house over it, to her daughter and the second respondent. The appellant deposed that whenever her daughter visited her maternal home, she would mention how her spouse, father-in-law, mother-in-law and stepbrothers as well as his friends (among them Manoj Shrivastav) would trouble her by saying her parents have given a small constructed house. The appellant stated that during the intervening night of 9/10 June 2017, at about 3:00 am, the second respondent made a phone call to the son of the appellant saying that Juhi Arshi had hanged herself. The appellant deposed that she, her husband and son reached her daughter’s house at Azad Nagar. During the course of her deposition, the appellant stated as follows:

7 On 5 October 2018, on the basis of the substantive evidence of the appellant (PW-1) an application1 was moved under Section 319 of the CrPC to summon the second respondent to face trial as he appeared to be complicit in the crime leading up to the murder of his wife.

Nothing from the household items were found missing nor scattered in the house which may indicate that theft, etc had been committed.” 9 On 29 January 2019, the Additional District and Sessions Judge allowed the application and summoned the second respondent under Section 319 of the CrPC. The order relied on the following circumstances which emerged from the evidence of the appellant (PW-1) and her son, PW-2 Shouib Raja:

25 During the course of her cross-examination on 6 December 2018, the appellant was questioned on her deposition in the course of the Examination-in- Chief about the harassment which her daughter had suffered at the hands of the second respondent, his father, mother and brothers. PW- 1 maintained her account in the course of her cross-examination, stating that on the night before the incident when her daughter had visited her house together with the second respondent, she had informed PW-1 about the ill-treatment meted out to her. PW-1 further stated in her cross-examination that she received intimation of the death of her daughter from the second respondent at 3:00 am as she was preparing for sehari during the month of Ramzan. On reaching the scene of the incident, it was found that only the second 19 respondent was present in the house where the couple used to reside. She stated that besides the injury marks on the body of the deceased, the floor was found to be absolutely clear, and it appeared as if it had been cleaned. PW-1 stated that a foul smell was emanating from the mouth of her daughter and a bottle was found at the site which the police took into custody. PW -1 stated that nothing was found to be missing from the household items ruling out the possibility of a theft. 26 PW-2 (the son of PW-1 and the brother of the deceased) deposed in evidence on 4 June 2019 when he stated that on 12 July 2017, the police had taken into custody three mobiles and four SIM cards besides nine photographs which were taken by the witness from his cell phone.

482. The order passed by the High Court is unsustainable and would accordingly have to be set aside.

29 We accordingly allow the appeal and set aside the impugned judgment and order of the High Court dated 12 April 2019. In consequence, the order passed by the Additional District and Sessions Judge - Fast Track Court No 1, Moradabad on 29 January 2019 allowing the application and issuing summons to the second respondent under Section 319 of the CrPC is upheld.

30 Pending application(s), if any, shall stands disposed of.

.……......................................................J [Dr Dhananjaya Y Chandrachud] .……......................................................J [Hrishikesh Roy] New Delhi;

December 10, 2019.