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2013 DIGILAW 205 (UTT)

MANOJ TAMTA v. STATE OF UTTARAKHAND

2013-04-16

Alok Singh, Barin Ghosh

body2013
JUDGMENT Per: Alok Singh, J. Appellant, by way of the present Appeal, is assailing the judgment and order dated 30.09.2008 passed by District & Sessions Judge, Udham Singh Nagar in Sessions Trial No. 144 of 2007, whereby learned Sessions Judge has found the appellant guilty for offence punishable under Section 304B of the Indian Penal Code and sentenced him for life imprisonment and to pay a fine of Rs. 10,000/-. In default of payment of fine, appellant was directed to further undergo additional imprisonment of six months. Appellant has been further sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,000/- under Section 3/4 of the Dowry Prohibition Act. In default of payment of fine, he has been further directed to undergo additional imprisonment for one month. 2. Brief facts of the case, inter alia, are that the appellant got married with Rekha daughter of Govind Prasad (PW1), on 21.5.2005; both of them were residing in a rented accommodation belonging to Tara Singh (PW5); in the night of 06.03.2007 at about 10 PM, PW5 noticed smoke coming out from the room of the appellant; having noticed the smoke, he rushed towards the room of the appellant and knocked the door; he entered the room and found burnt dead body of Rekha in the room and also found the appellant standing in the room; he informed the Police as well as the father of the deceased, PW1; PW1, after reaching on the spot, found the dead body of his daughter Rekha lying in the room and lodged the report with the Police Station Kotwali, Rudrapur stating therein that, at the time of marriage, he had given items worth Rs. 50,000/- in the marriage of the appellant; the appellant used to harass Rekha (deceased) for bringing less dowry; after two months, appellant again started harassing her in respect of dowry; his daughter Rekha and his son-in-law were residing in the house of PW5 as tenants; almost two months before, appellant asked Rekha to bring Rs. 50,000/- and one motorcycle from her parents saying if Rs. 50,000/- and motorcycle are not given to him, he will kill Rekha; Rekha had narrated the entire story to him as well as to her mother; informant (PW1 herein) handed over Rs. 50,000/- and one motorcycle from her parents saying if Rs. 50,000/- and motorcycle are not given to him, he will kill Rekha; Rekha had narrated the entire story to him as well as to her mother; informant (PW1 herein) handed over Rs. 50,000/- to the appellant to purchase a motorcycle one and half month before the incident; even after making the payment of Rs.50,000/- to the appellant, appellant did not stop harassing and beating Rekha. Today at about 10 PM, appellant has killed Rekha after burning her and her dead body was lying in the tenanted room of PW5. After the lodgment of the First Information Report, Police commenced the investigation. Dead body of Rekha was sent for post mortem examination and, as per the Post Mortem Report, cause of death was 90 per cent burning. Having investigated the matter, Police submitted a charge sheet against the appellant for offences punishable under Section 304B of IPC and Section 3/4 of the Dowry Prohibition Act. Learned Sessions Judge, after committal of the trial, was pleased to frame charges against the appellant for the offences punishable under Section 304B of IPC and Section 3/4 of the Dowry Prohibition Act. During the trial, including informant PW1 and PW5 Tara Singh, PW2 Satnam Singh, PW3 Harish Ram, PW4 Dr. Uday Shankar, PW6 S.I. Jaswant Singh, PW7 Chandra Babu Maurya, PW8 N.P. Sah, PW9 Anil Singh, PW10 Mohan Chandra, PW11 Pradeep Kumar and PW12 Kamlesh Upadhyay were examined. 3. Having considered the entire material made available on record, learned Sessions Judge was pleased to convict and sentence the appellant accused by the judgment and order under appeal, as indicated above. 4. We have heard Mr. S.K. Agarwal, learned Senior Advocate assisted by Mr. H.C. Pande, learned counsel appearing for the appellant as well as Mr. A.S. Gill, learned Senior Government Advocate assisted by Mr. V.P. Bahuguna, Brief Holder for the State and have carefully perused the records. 5. PW1, the informant (father of the deceased), has nowhere stated that before or at the time of marriage, there was demand of any dowry from the side of the appellant. He, however, has stated that initially, appellant was fully satisfied with the gift items given at the time of marriage. However, after some time, he started demanding Rs. 50,000/- and a motorcycle; the appellant threatened Rekha to kill her in case his demand for Rs. He, however, has stated that initially, appellant was fully satisfied with the gift items given at the time of marriage. However, after some time, he started demanding Rs. 50,000/- and a motorcycle; the appellant threatened Rekha to kill her in case his demand for Rs. 50,000/- and motorcycle is not met out. He has further stated that on 13.12.2006, he, after withdrawing Rs. 75,000/- from his EPF Account, handed over Rs. 40,000/- to the appellant for purchasing motorcycle. In the cross-examination, PW1 has stated that, at the time of marriage, appellant did not make any demand of dowry, and the appellant and his family were fully satisfied with the marriage; he has further stated during his cross examination that in his Pass-Book, there is no entry of withdrawal of Rs.75,000/-; further stated that the motorcycle, he is talking about, is now in the possession of PW1. 6. Having perused the statements of PW1, the father of the deceased, we are of the opinion that PW1 was not able to prove that he has withdrawn Rs. 75,000/- from his EPF Account, out of which Rs. 40,000/- were given to the appellant in the absence of any entry in the Pass-Book. Moreover, if motor cycle was purchased by the appellant out of Rs. 40,000/- paid by PW1, how motor cycle came in the possession of PW1, which he is admitting to be in his possession. Moreover, it has come in the statement of PW1 that there was absolutely no demand of dowry either before marriage or at the time of marriage and soon thereafter and, as per the statement of PW1, demand for dowry started for the first time 2-4 months before the incident. 7. PW2 Satnam Singh states that the appellant was a heavy drinker. He admits that he did not attend the marriage of the appellant with Rekha. However, he has stated that Rekha has disclosed to him that her husband (appellant) is alcoholic and is demanding Rs. 50,000/- and a motorcycle. He has further stated that after taking loan, PW1 purchased the motor cycle for the appellant and handed over the same to the appellant. 8. As observed hereinabove, PW1 is saying that he has handed over Rs. 40,000/- to the appellant to purchase the motor cycle and having received Rs. 50,000/- and a motorcycle. He has further stated that after taking loan, PW1 purchased the motor cycle for the appellant and handed over the same to the appellant. 8. As observed hereinabove, PW1 is saying that he has handed over Rs. 40,000/- to the appellant to purchase the motor cycle and having received Rs. 40,000/-, appellant has purchased the motorcycle, while PW2 is saying that PW1 has himself purchased the motorcycle and has handed over the same to the appellant. 9. Statements of PW1 and PW2 are totally contrary to each other and their statements do not stand corroborated by each other’s statement. Therefore, no reliance can be placed thereon. 10. PW3 Harish Ram states that the appellant had demanded Rs. 50,000/- at the time of engagement itself and Rs. 50,000/- were handed over to the appellant at the time of engagement, before the marriage. Not only this, appellant asked PW1 to bear the expenses of the Bus for transportation of Baraties. 11. PW1 is saying that there was absolutely no demand of dowry either before the marriage or at the time of marriage and, for the first time, demand was raised 3-4 months prior to the incident, while in the present case, PW3 is saying that Rs. 50,000/- were demanded before the marriage, at the time of engagement and Rs. 50,000/- were handed over to the appellant at the time of engagement. Statement of PW3 does not inspire any confidence at all. Having considered the statements of PW1, PW2 and PW3, we are unable to satisfy ourselves on the point that there was any demand of dowry, just before the death of Rekha. 12. PW5 as well as the appellant in his statement recorded under Section 313 of the Code of Criminal Procedure are stating that both of them were present in the room and both of them tried to save Rekha from burning by pouring water as well as by covering her by the blanket. PW5 states that he had stopped the appellant on the spot, however, appellant was able to slip away after arrival of the Police. Fact remains that the appellant was produced by the Police before Dr. Dinesh Singh Dharmshaktu, Medical Officer posted at Jawahar Lal Nehru Hospital, Rudrapur at about 10:30 PM on 06.03.2007. PW5 states that he had stopped the appellant on the spot, however, appellant was able to slip away after arrival of the Police. Fact remains that the appellant was produced by the Police before Dr. Dinesh Singh Dharmshaktu, Medical Officer posted at Jawahar Lal Nehru Hospital, Rudrapur at about 10:30 PM on 06.03.2007. It shows that the appellant was apprehended on the spot by the Police soon after reaching on the spot and was taken for the medical examination to DW1. It means appellant did not run away from the spot. 13. As per the medical examination of the appellant, he was found having burn injuries in front of his neck as well as on the right hand. As per the statement of the appellant recorded under Section 313 of the Code of Criminal Procedure, on the date of incident, he had consumed more liquor, therefore, he was intoxicated and wanted to sleep, while his wife wanted to sleep with him. However, he could not oblige her. Soon thereafter, he fell asleep. However, after feeling heat and smoke in the room, immediately he woke up and, after watching Rekha burning, tried to save her with the help of PW5 and, while saving her, he received some burn injuries. 14. To prove an offence punishable under Section 304B of IPC, it is incumbent on the part of the prosecution to prove that there was demand of dowry soon before the death. In the present case, as discussed hereinabove, prosecution could not bring the guilt at home by proving that there was a demand of dowry before the death of Smt. Rekha. Therefore, in our considered view, offence punishable under Section 304B of IPC cannot be said to have been proved. 15. However, in view of the statements of PW1 and PW2, which have proved that the appellant was alcoholic and, as per the statement of the appellant recorded under Section 313 of the Code of Criminal Procedure, on the fateful day, he had consumed more liquor and, feeling intoxicated, he wanted to sleep, while Rekha was asking him to sleep with her, however, he could not oblige her and fell to sound sleep, may be a cause of committing suicide as suggested by the prosecution. 16. 16. In the present case, no alternate charge for an offence punishable under Section 302 of IPC was framed as required by Section 221 of the Code of Criminal Procedure. Moreover, there is absolutely no evidence to prove the guilt of the appellant for an offence under Section 302 IPC. 17. Mr. Gill, learned Senior Government Advocate submits that even if offence punishable under Section 304B of IPC or Section 3/4 of the Dowry Prohibition Act is not proved, the offence in view of suicide committed by Mrs. Rekha as a result of torture and harassment should be treated as an offence punishable under Section 306 of IPC. However, Mr. Gill has further argued that consuming heavy liquor daily would amount to harassment and cruelty, which might have resulted into suicide of Rekha. Therefore, otherwise also, offence under Section 306 IPC is made out. 18. We are unable to accept the contentions raised by Mr. Gill for the simple reason that there is absolutely no evidence to prove that the appellant has treated Rekha with such degree of cruelty or harassment for the demand of dowry, which could have derived Rekha to commit suicide as provided under Section 107 of IPC. Therefore, in our firm opinion, offence punishable under Section 306 of IPC is also not made out. Even if, for the sake of argument, it is accepted that the appellant was a heavy drinker and despite repeated objections by Rekha, he was not able to stop taking drinks and that is why Rekha committed suicide, in our view, will not amount to abetment of offence punishable under Section 107 of IPC in the absence of a mens rea on the part of the appellant to derive Rekha to commit suicide. 19. In view of the discussions made hereinabove, we are unable to uphold the judgment and order under appeal. Therefore, the appeal is allowed. Judgment and order under appeal dated 30.09.2008 passed by District & Sessions Judge, Udham Singh Nagar in Sessions Trial No. 144 of 2007 is hereby set aside. 20. Appellant is in Jail. He shall be set at liberty forthwith, if he is not required in any other case. 21. Let a copy of this order be forwarded to the learned trial Court along with the lower court records for compliance thereof.