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2012 DIGILAW 28 (CHH)

AJAY KOUSHIK v. STATE OF C. G.

2012-01-18

PRITINKER DIWAKER

body2012
JUDGMENT 1. This appeal has been preferred against the judgment and order dated 8.4.2008 passed by Additional Sessions Judge, Bilaspur, in Sessions Trial No.13/2008 holding the accused/appellants guilty under Section 304 (B) IPC and sentencing each of them to undergo rigorous imprisonment for seven years. 2. Facts of the case in brief are that marriage of deceased Lata was solemnized with accused/appellant No.1 herein about 8-9 months prior to the date of incident i.e. 16.2.2007. Accused/appellant No.2 is the mother-in-law of the deceased. On 16.2.2007 the deceased burnt herself by pouring kerosene oil on her body and she died on the same day. Merg intimation Ex. P-3 was given by Vidyanand Koushik (PW-8) and after merg enquiry FIR Ex. P-4 was registered on 15.10.2007 under section 304 (B) IPC. After completion of investigation challan was filed by the police on 28.12.2007 for the said offence. 3. So as to hold the accused/appellants guilty, prosecution has examined 12 witnesses. Statements of the accused/appellants were also recorded under section 313 of the Code of Criminal Procedure in which they denied the charge levelled against them and pleaded their innocence and false implication in the case. This apart, two persons namely Panchram (DW-1) and Dr. Santosh Kumar Kaushik (DW-2) have also been examined by the defence in support of its case. 4. After hearing the parties, the trial Court convicted and sentenced the accused/appellants as mentioned in paragraph No.1 of this judgment. Hence, this appeal. 5. Counsel for the appellants submits that the allegations made against the accused/appellants are general in nature and based thereon they cannot be convicted under Section 304 (B) IPC. He submits that the incident took place on 16.2.2007 whereas case diary statements of the witnesses were recorded on 16.10.2007, 25.10.2007 and 31.10.2007 and none of them has made any specific allegation against the accused/appellants. He further submits that at the time of inquest done on 16.2.2007, father of the deceased namely Makhanlal Koushik (PW-1) was present but he too has not made any allegation against the accused/appellants. 6. On the other hand counsel for the respondent/State supports the impugned judgment and submits that deceased Lata died within 8-9 months of her marriage and the witnesses have categorically stated that she was subjected to cruelty by the accused/appellants for demand of dowry. 6. On the other hand counsel for the respondent/State supports the impugned judgment and submits that deceased Lata died within 8-9 months of her marriage and the witnesses have categorically stated that she was subjected to cruelty by the accused/appellants for demand of dowry. He further submits that the witnesses themselves have stated that as they were in shock after the incident, they did not make any statement against the accused/appellants. 7. Heard counsel for the parties and perused the material available on record. 8. Makhanlal Koushik (PW-1) - the father of the deceased has stated that marriage of his daughter (deceased herein) was solemnized with accused/ appellant No.1 last year thereto and that at the time of marriage he had given TV, cooler, almirah, sofa-set all worth Rs. 1,50,000. According to this witness, as his elder son had expired 3-4 years prior thereto the deceased did not make any complaint to him against the accused/appellants perhaps on account of the fear that it may give shock to him but she had informed Khorbahrin and Hira Bai that the accused/appellants were not permitting her to watch TV and harassing her making a demand for motorcycle. This witness has stated that on Mahashivratri festival he suddenly went to the matrimonial house of the deceased where her body with burn injuries was lying and her tongue had protruded. In cross examination, this witness has stated that after coming to know through his co-brother Babulal who was also residing in the village of accused/appellants that the family of the accused/appellants was very good and that accused/appellant Ajay was engaged in tailoring work, he got the deceased married to him. He has further stated that at the time of settlement of marriage, father of accused/appellant Ajay had asked him to give dowry as per his capacity but no specific demand for motorcycle was made by him. This witness has further stated that even at the time of marriage no demand for motorcycle was made by anyone. According to this witness, when he had gone to the house of the accused/appellants to bring back his daughter, the father of accused/ appellant Ajay requested him to stay there at least for one day and then on the second day without there being any grudge, the appellants permitted his daughter to accompany him. According to this witness, when he had gone to the house of the accused/appellants to bring back his daughter, the father of accused/ appellant Ajay requested him to stay there at least for one day and then on the second day without there being any grudge, the appellants permitted his daughter to accompany him. He has further stated that during his visit to the house of the accused/appellants nobody had objected him to meet his daughter. This witness has further stated that about a week thereafter, his son-in-law also came to his house on a motorcycle to take the deceased back, stayed there in the night and then on the next day he got back with her. He has stated that 3-4 months thereafter when he again went to the house of the accused/appellants to take his daughter, this time also he stayed there for a day and no demand of motorcycle or complaint regarding anything whatsoever was made either by accused Ajay or his family members rather he was given very good treatment by them. This witness went on saying that when again his son-in-law visited his house on bicycle to take back the deceased, no demand of motorcycle was made by him. This witness has reiterated that at no point of time he received any complaint either from accused/appellant Ajay or his parents for not giving motorcycle in marriage. He has further stated that though after marriage the deceased visited his house on three occasions, she did not make any complaint either to him, her mother or even to her sister regarding her harassment at the hands of the accused/appellants making demand of motorcycle. He has stated that even on the date of incident he had stayed in the house of the accused/appellants till the last rites were completed and it is in his presence the police came there and made certain enquiry from him in regard to death of Lata but he informed the police people that he was not aware of any dispute in the family of the accused/appellants. He has further stated that when on the next day of the incident he came to his village the incident was disclosed to his family members and also to Khorbahrin and Hira Bai. He has further stated that when on the next day of the incident he came to his village the incident was disclosed to his family members and also to Khorbahrin and Hira Bai. According to him, by this time his sister-in-law, one Khorbahrin and Hira Bai had already informed his wife that the deceased had informed them that the accused/appellants were harassing her for motorcycle and then he went to Chakarbhata police station and made a report accordingly. Hirabai (PW-2) the aunt of the deceased has stated that whenever the deceased visited her maternal home, she used to call her to her house and ask about her well-being on which she used to tell her that the accused/appellants were harassing her demanding motorcycle. According to this witness, immediately after the death of Lata, her statement was recorded by the police in which she had disclosed' each and everything. Sakina (PW-3) - the friend of the deceased has stated that 2-3 months after marriage when the deceased came to her village, she informed her that the accused/appellants were demanding motorcycle from her and for this they were beating and abusing her also. There appear to be material contradictions and omissions in the Court statement and case diary statement of this witness. Khorbahrin (PW-4) - another aunt of the deceased has stated that the deceased had informed her that on account of not giving motorcycle, the accused/appellants were harassing her and they did not allow her to watch colour TV. According to this witness, her statement was recorded by the police four days after the death of Lata. Dilharan (PW-5) is the witness of inquest Ex. P-1 who has stated that at the time of inquest no complaint was made by the father of the deceased. Girjabai (PW-6) - mother of the deceased has stated that after marriage, the deceased visited her house on four occasions but she did not make any complaint against the accused/appellants and that only after her death when she returned to her house, she was informed by Hirabai, Sakina and Khorbahrin that her daughter had informed them that the accused/appellants used to harass her for motorcycle. Makhanlal (PW-7) is the witness of inquest Ex. P-l and seizure of certain articles made under Ex.P-2. Vidyanand Koushik (PW-8) is the witness who gave merg intimation Ex.P-3 to the police. This witness has not stated anything specific against the accused/appellants. Makhanlal (PW-7) is the witness of inquest Ex. P-l and seizure of certain articles made under Ex.P-2. Vidyanand Koushik (PW-8) is the witness who gave merg intimation Ex.P-3 to the police. This witness has not stated anything specific against the accused/appellants. Shivnarayan Pandey (PW-9) is the witness who took the body of the deceased for post mortem examination. Dr. A.R. Banjare (PW-10) is the witness who conducted post mortem examination on the body of the deceased and gave his report Ex. P-5. This witness has stated that as in the trachea of the deceased carbon particles were found, it could be said that the burn injuries were ante-mortem. P.C. Sonekar (PW-11) is the investigating officer who has supported the case of the prosecution. Arvind Kumar Dwivedi (PW-12) is the witness who assisted the investigating officer in investigation. Panchram (DW-I) has stated that as the deceased was in the grip of some evil spirit, on four occasions he had practiced sorcery on her. Dr. Santosh Koushik (DW-2) has stated that as the deceased was suffering from hysteria and her blood pressure used to be on the rise, he had treated her by naturopathy. 9. Having thus discussed the facts of the case in the light of the evidence of the witnesses it becomes clear that Lata died on 16.2.2007 and though at the time of inquest her father was present in the house of the accused/appellants he did not make any allegation against anyone and for the first time the case diary statements of the witnesses were recorded on 16.10.2007, 25.10.2007 and 31.10.2007. Some of the witness have though deposed that their statements were recorded immediately after the incident, the record speaks otherwise. Statement of Makhanlal Koushik (PW-1) - the father of the deceased makes it clear that immediately after marriage, on two occasions he had gone to the house of the accused/appellants but no complaint whatsoever was made by his daughter rather the accused/appellants had well treated him and requested him to stay in their house at least for one day. It further makes it clear that no demand of motorcycle etc. was made by anyone. Likewise, mother of the deceased has categorically stated that no demand of motorcycle was ever made by the accused/appellants and that she had come to know about the same through Hirabai, Sakina and Khorbahrin only after the death of her daughter. It further makes it clear that no demand of motorcycle etc. was made by anyone. Likewise, mother of the deceased has categorically stated that no demand of motorcycle was ever made by the accused/appellants and that she had come to know about the same through Hirabai, Sakina and Khorbahrin only after the death of her daughter. This apart, there is no evidence on record to show that soon before death the deceased was harassed by the accused/appellants to such an extent that she was left with no other option but to end her life. In these circumstances it can be said that the prosecution has utterly failed to prove its case by leading cogent and clinching evidence and that being so the accused/appellants are entitled to have benefit of doubt. 10. In the result, the appeal is allowed. Judgment impugned convicting and sentencing the accused/appellants under Section 304 (B) IPC is set aside. They are acquitted of the charge levelled against them. Appellant No.1 is reported to be in jail. He be set free forthwith if not required in any other case. Appellant No.2 is already on bail. Her bail bonds stand discharged. Appeal Allowed.