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2012 DIGILAW 283 (UTT)

SHEKHAR CHANDRA v. STATE OF U. P.

2012-06-15

SERVESH KUMAR GUPTA

body2012
JUDGMENT Hon’ble Servesh Kumar Gupta, J. 1. This appeal challenges the order of conviction dated 26.10.1999 rendered by learned Additional Sessions Judge, Nainital in Sessions Trial No. 526 of 1995 titled as ‘State Vs. Shekhar Chandra and three others’ which pertains to Patti Simlekha, Tehsil Koshyakutoli, District Nainital for the offence under Section 304-B, 201, 498-A IPC. After conclusion of the trial, learned Additional Sessions Judge found that no case under Section 304-B and 201 IPC is proved against the appellants but he convicted all the accused appellants for the offence under Section 498-A IPC and sentenced them to undergo three years rigorous imprisonment and pay fine of Rs. 2000/- each. In default of payment, each one of them was directed to undergo two months simple imprisonment. 2. Having heard learned counsel for the parties, it transpires that Kusum (deceased) was espoused with accused Shekhar Chandra on 04.12.1994. She had no real brother and her father was also not alive. She used to reside with her mother in village Attavarat, Tehsil – Koshyakutoli, District – Nainital. After about two months from marriage Shekhar Chandra along with his brother on 25.01.1995 at 04.00 p.m. reached in the native house of Kusum and informed that whereabouts of Kusum are not known ever since the night of 24.01.1995. He also extended this information to the concerned Patwari. Having gained this knowledge, her cousin PW 1 Deep Chandra along with others went to village Sakdina, which is probably in the vicinity of village Jinauli. It is pertinent to mention that village Jinauli is the native place of accused persons and the distance between village Attavarat and Jinauli is 50 Kms but both are in the same Tehsil Koshyakutoli and the only mode to cover the said distance is by trekking, as there is no motor road that is why PW1 Deep Chandra took as much as six hours in reaching to village Sakdina from his native village Attavarat. 3. A massive hunt was conducted by all the persons including the appellants, which resulted into recovery of dead body of Kusum on 27.01.1995 at the evening hours in a deep gorge in the outskirt of village Jinauli. An inquest report was prepared on 28.01.1995 at 01.30 p.m. and at the time of preparation of inquest report, PW1 Deep Chandra as well as other persons hailing from village Attavarat were also present. An inquest report was prepared on 28.01.1995 at 01.30 p.m. and at the time of preparation of inquest report, PW1 Deep Chandra as well as other persons hailing from village Attavarat were also present. In the opinion of PANCH, cause of death was not apparent. Copy of inquest report is Exhibit Ka–3. 4. Autopsy was conducted on 29.01.1995 at 01.15 p.m. in District Hospital, Nainital by Dr. D.K. Joshi and following ante mortem injuries were found on the body of Kusum by PW6 Dr. D.K. Joshi: “i. Upper end of left femur just below head, completely broken and protruding out of skin at just above middle of left thigh. ii. Lower end of Tibia of left foot dislocated and protruding out of skin at medial malleolus. iii. Fracture of upper end of tibia of left leg. iv. Lacerated wound on scalp skin deep about 6 cm. X 0.5 cm. v. Multiple bruise on back of right forearm. vi. Lacerated wound size 7 cm. X 1 cm. muscle deep on inner side of upper most past of right thigh.” 5. In the opinion of Dr. D.K. Joshi, death was caused due to shock and haemorrhage, as a result of ante mortem injuries. This doctor has opined that injury no. 1 and 5 were possible on account of falling down from intense height. The injury no. 1 disclosed that bone of left thigh was completely fractured while injury no. 2 divulged dislodging of left foot bone from its joint. Besides, the lower part of the left leg was also fractured. 6. The First Information Report was lodged by PW1 Deep Chandra on 31.01.1995 at 11.00 a.m. The matter was investigated and charge-sheet against all the four accused for the offence under Section 304-B, 201 IPC read with Section 3/4 Dowry Prohibition Act had been submitted. Learned Additional Sessions Judge did not level the charge of Section 3 /4 of the Dowry Prohibition Act and instead charge under Section 498-A in addition to Section 304-B, 201 IPC was levelled against all the accused appellants. 7. Learned Additional Sessions Judge did not level the charge of Section 3 /4 of the Dowry Prohibition Act and instead charge under Section 498-A in addition to Section 304-B, 201 IPC was levelled against all the accused appellants. 7. The accused persons denied the guilt and claimed trial, so prosecution in order to prove its case has examined PW1 Deep Chandra, complainant and cousin of Kusum, PW2 Girija Nandan, a shopkeeper before whom Kusum disclosed about demand of dowry, PW3 Sadanand and PW4 Leela Dhar are uncles of Kusum, PW5 Dinesh Chandra Bhatt, cousin of deceased, PW6 Dr. D.K. Joshi, who conducted autopsy on the dead body of Kusum, PW 7 Sohan Singh, Patwari, who investigated the matter and PW8 Kamla Kanti is mother of Kusum. 8. The crucial witnesses, who have been examined by prosecution, are PW1 Deep Chandra and PW8 Kamla Kanti. Besides, there is one more significant evidence whereupon reliance has been placed by learned Additional Sessions Judge and that evidence is a letter (material exhibit 1) allegedly written by deceased on 18.01.1995 to her mother. This letter divulged the allegations made by Kusum against all members of her in-laws’ house. She has stated that consistent and persistent taunts are extended by them (appellants) besides filthy abuses, on the question of dowry. She was also maltreated including beating and asked to fulfil their demand of Rs. 10,000/- in addition to two TOLA gold. 9. The Court can discern that the worth of Rs. 10,000/- and two TOLA gold in 1994-95 can well be equated with at least Rs. 1,00,000/- of present time, so demand of such a huge amount from PW8 Kamla Kanti, who herself was living in penury and whose husband had died and even did not have any son or any other earning member, is not tenable at all. It is also pertinent to mention that this marriage was hardly organized with minimum expenses by relatives of Kusum (deceased), which has been accepted by all the prosecution witnesses. 10. It is pertinent to mention that First Information Report has been lodged with delay of more than three days but no plausible explanation has been put forth for the same. Statement of PW 2 Girija Nandan (at page 42) makes it clear that this report was lodged after long deliberations and considerations, which polluted its contents. 11. 10. It is pertinent to mention that First Information Report has been lodged with delay of more than three days but no plausible explanation has been put forth for the same. Statement of PW 2 Girija Nandan (at page 42) makes it clear that this report was lodged after long deliberations and considerations, which polluted its contents. 11. There is yet another important aspect in the instant case that Shekhar Chandra was already married and his first wife was living with him. He has a minor daughter born from his first wife. His first wife was handicapped, as has been disclosed by the certificate filed along with Misc. Application No. 663 of 2012 by accused appellants before this Court, which is taken on record and accepted by this Court in exercise of powers rendered under Section 391 Cr.P.C. This certificate is issued by CMO, Nainital, which discloses several ailments of first wife of accused Shekhar Chandra, so in these circumstances this second marriage was a boon for Shekhar Chandra to facilitate him in his day-to-day life. All the prosecution witnesses have accepted that either before or at the time of marriage there was no demand of dowry. The marriage party included 40-50 persons, which were welcomed by relatives of Kusum and sent off in a quite pleasant and happy manner. It has also been admitted by the prosecution witnesses that after three days of marriage Kusum came to her mother’s house, as per Hindu rituals along with her husband Shekhar Chandra and returned to her matrimonial house next day. 12. PW1 Deep Chandra has stated that when Kusum came to her native place, she met with him only for few second but did not talk anything. It is very peculiar that Kusum had not disclosed about the atrocious conduct of appellants to her cousin but told the same to PW2 Girija Nandan, who was a shopkeeper, while she was on the way to her in-laws’ house. This is quite impractical and unacceptable. 13. The crucial evidence of the letter also does not inspire confidence, for the reasons that prosecution has not proved meticulously that this letter was written by Kusum herself. This is quite impractical and unacceptable. 13. The crucial evidence of the letter also does not inspire confidence, for the reasons that prosecution has not proved meticulously that this letter was written by Kusum herself. The evidence disclosed that she was Intermediate passed and accused Shekhar Chandra is only 7th Standard passed, so this letter could have been proved by matching the writing of Kusum from other notebooks and materials, which might have been available in her native place but this has not been done by the prosecution. The statement of witness that all the notebooks and other materials unveiling the writing of Kusum, had been burnt by mother of Kusum, is somewhat unnatural. It is also worthy to mention that veracity of the aforesaid letter is doubtful on yet another score. PW 1 Deep Chandra in his examination has stated that this letter was handed over to him by PW8 Kamla Kanti, mother of deceased while latter stated (at page 73) that this letter was handed over to her by PW1 Deep Chandra. This is a glaring contradiction, which makes genuineness of letter very doubtful and it has been made the basis of conviction by learned Additional Session Judge. Learned Additional Sessions Judge has placed reliance upon this letter very scrupulously but the Court feels that learned Additional Sessions Judge has committed error in placing so much reliance upon this letter. 14. From perusal of statements of PW 1 Deep Chandra and PW8 Kamla Kanti, it transpires that Kusum was not told before her marriage that Shekhar Chandra is already wedded and his first wife is alive. It was not within the knowledge of Kusum that Shekhar Chandra also has a daughter from his first wife, so when she reached at her in-laws house and passed a couple of days, she utterly felt frustrated and the anguish of being second wife to serve the first wife could not be tolerated by her, consequently, she committed suicide on account of her helpless circumstances. The nature of injury found in the autopsy report also indicates that she committed suicide. 15. Learned counsel for the appellants has also placed reliance upon the judgment of Hon’ble Apex Court passed in the case of Shivcharan Lal Verma Vs. State of M.P. reported in 2002 (44) ACC 857. The nature of injury found in the autopsy report also indicates that she committed suicide. 15. Learned counsel for the appellants has also placed reliance upon the judgment of Hon’ble Apex Court passed in the case of Shivcharan Lal Verma Vs. State of M.P. reported in 2002 (44) ACC 857. It was also a case where the second wife committed suicide while she came to know about the subsistence of first marriage of her husband. In those circumstances, the Hon’ble Court has held that the second marriage was null and void, as having performed during the lifetime of first wife, so conviction under Section 306 IPC was sustained in that case but the Court was of the view that in these circumstances conviction under Section 498-A cannot be recorded at all. 16. In the instant case, learned Additional Sessions Judge convicted the appellants under Section 498-A IPC only while he did not find any case either of dowry death or suicide or even a demand of dowry against the appellants, so in view of what has been stated above, no conviction under Section 498-A IPC could have been recorded. Accordingly, the appeal is allowed. Impugned judgment and order dated 26.10.1999 is hereby set aside. Misc. Application No. 663 of 2012 also stands disposed of. 17. Let a copy of this judgment be sent to the trial court for releasing the appellants, who are in jail.