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2013 DIGILAW 213 (UTT)

Sanjay Ram Tamta v. State of Uttarakhand

2013-04-22

ALOK SINGH

body2013
Judgment : 1. Present appeal is directed against the judgment and order dated 30.03.2009 passed by Additional Sessions Judge/ 1st FTC, Haldwani, Nainital in Sessions Trial No. 21 of 2007 whereby appellant was found guilty for the offence punishable under Section 498-A and 304-B IPC and was sentenced to undergo imprisonment for a period of 7 years for the offence punishable under Section 304-B IPC by observing that since offence under Section 304-B IPC covers offence under Section 498-A, therefore, two sentences are not required. 2. Brief facts of the present case, inter alia, are that PW2 Jaswant Singh lodged an FIR with police station Haldwani on 21.10.2006 stating therein that Hema, his daughter, was married to appellant on 09.05.2006; he had given few items as per his capacity to the appellant at the time of marriage; however, after some time of marriage, appellant, his parents and his brother started demanding of Rs. 4,00,000/- (Rs. Four Lakh) as well as one plot for construction of house and started harassing Hema to meet out their illegal demand of plot and Rs. 4,00,000/-; On the fateful day, at about 08.30 p.m., he along with his son PW1 went to the house of Hema to deliver sweet on the eve of Diwali, however, they found Hema hanging with hook of fan, thereafter, they removed her dead body from the hook of fan and kept the same on bed; thereafter, they (i.e. PW1 and PW2) came out of the room and they found accused on the road, soon after seeing him, they brought him to police station and thereafter, lodged the FIR. 3. Having investigated the matter, PW9 D.P. Juyal, Circle Officer, submitted a charge-sheet against the appellant as well as his parents and his brother for the offences punishable under Section 304-B, 498-A IPC and 3/4 of the Dowry Prohibition Act. 4. After committal of the case, learned trial court framed the charges against the appellant and his family members for the offence punishable under Section 498-A, 304-B IPC and 3/4 of the Dowry Prohibition Act. 5. From the side of prosecution, PW1 Sanjay Singh, PW2 Jaswant Singh, PW3 Deepmala, PW4 Mukesh Dhaila, PW5 Shekhar Gupta, PW6 Bhuwan Chand Thapliyal, PW7 Dr. B.N. Singh, PW8 Constable Ashok Kumar and PW9 D.P. Juyal Investigating Officer were examined. 6. 5. From the side of prosecution, PW1 Sanjay Singh, PW2 Jaswant Singh, PW3 Deepmala, PW4 Mukesh Dhaila, PW5 Shekhar Gupta, PW6 Bhuwan Chand Thapliyal, PW7 Dr. B.N. Singh, PW8 Constable Ashok Kumar and PW9 D.P. Juyal Investigating Officer were examined. 6. Learned trial court did not find any charge to have been proved against the parents & brother of appellant, therefore, they were acquitted. However, appellant was found guilty and sentenced vide judgment and order under appeal. 7. Mr. Prem Kaushal, Advocate for the appellant, submits that PW2 Jaswant, in his cross-examination, admitted that he was running a tea stall on Thela; no demand was ever raised for the dowry before or at the time of marriage; he further admitted that he had absolutely no capacity to give any dowry. 8. Learned counsel for the appellant submits that in view of the statement of PW2 (father of the deceased), demand of dowry, soon before death of Hema, is not proved. He further contends that demand of dowry, soon before the death of wife or wife was subjected to cruelty or harassment, for demand of dowry, is sine qua non to invoke Section 304-B IPC. 9. PW2 Jaswant Singh stated that he had never seen appellant misbehaving or maltreating Hema. PW2 (at page 41 of the paper book) stated that before marriage, he had disclosed his capacity and financial status to the parents of the appellant, on this, parents of the appellant and appellant, told him that whatever he wanted to give in the marriage, he might give, they would not make any further demand. It is further admitted to PW1 and PW2 that appellant was working as Security Guard and was getting a meagre amount of Rs. 1800 per month as salary while PW2 was running a tea stall on THELA and had no other source of income. 10. In view of the financial and social status of both the parties, it would be difficult to accept the prosecution version that there was, in fact, demand of dowry of Rs. 4,00,000/- and a plot for construction of house and Hema was subjected to cruelty and harassment on the question of dowry, therefore, the most important ingredient that soon before the death of Hema, she was subjected to cruelty and harassment for the demand of dowry is not proved. 4,00,000/- and a plot for construction of house and Hema was subjected to cruelty and harassment on the question of dowry, therefore, the most important ingredient that soon before the death of Hema, she was subjected to cruelty and harassment for the demand of dowry is not proved. Therefore, offence under Section 304-B IPC cannot be said to have been made out against the appellant. 11. In view of the above discussion, conviction and sentence of the appellant, seems to be totally unjustified, therefore, appeal is allowed. Impugned judgment and order dated 30.03.2009 passed by Additional Sessions Judge/ 1st FTC, Haldwani, Nainital in Sessions Trial No. 21 of 2007 is set aside. Appellant stands acquitted of the charge levelled against him. Appellant is in jail, he shall be released forthwith, if not wanted in any other case. 12. Let a copy of this judgment be forwarded to the court below for compliance along with lower court record.