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2013 DIGILAW 262 (MP)

Basundhara v. Arvind Yadav

2013-02-27

N.K.GUPTA

body2013
JUDGMENT : The applicant has preferred the present revision against the judgment dated 28.8.2012 passed by the learned Additional Judge to the 1st Additional Sessions Judge, Tikamgarh in criminal appeal no.138/2011, whereby the judgment dated 15.12.2010 passed by the learned J.M.F.C. Orchha, District Tikamgarh in criminal case no.507/02 was confirmed in which the respondents were acquitted from the charge of the offence punishable under Section 498-A of IPC. 2. The prosecution’s case, in short is that, the marriage of the applicant took place with the respondent No.1 on 29.4.1998. The parents of the applicant spent a huge amount in that marriage and various gifts like color T.V., Fridge and golden ornaments were also given. In second time of her visit to her husband’s house, the respondent demanded a washing machine and a cash of Rs.60,000/-. The applicant was being harassed for that reason. Initially, the respondent No.1 to 3 kept the applicant with comfort for at least one year but thereafter they harassed the applicant in various bad manner. Once, she was tried to be killed. The respondent No.2 left the gas regulator opened and thereafter, she was directed to go into the kitchen to prepare some tea. The respondent Kasturi thereafter lighted the fire with the help of a gas lighter however, no physical hurt was caused to the applicant. The incident was seen by Jaipal, nephew of the applicant. The applicant went to Orchha with the help of Jaipal and thereafter, again she was sent to the house of the respondents No.1 to 3. In June 2001, when the applicant was pregnant, she was assaulted by kicks and fists and also by the sticks on her abdomen. Jamuna Prasad brother of the applicant saved her and taken her to the medical campus of Jhansi and thereafter, the applicant was directed to get her abortion on the advice of the concerned doctor. A talk took place for the compromise, which could no succeed and thereafter, the complainant lodged a written FIR at Police Station Orchha. After due investigation, a charge sheet was filed before the trial Court. During the pendency of the case, the applicant had moved an application for compromise on 13.7.2006, but that application was not accepted because the offence punishable under Section 498-A of IPC was not compoundable. 3. The respondent abjured their guilt. After due investigation, a charge sheet was filed before the trial Court. During the pendency of the case, the applicant had moved an application for compromise on 13.7.2006, but that application was not accepted because the offence punishable under Section 498-A of IPC was not compoundable. 3. The respondent abjured their guilt. They took a plea that no harassment was done to the applicant and the respondents were falsely implicated in the case because the applicant wanted to take the divorce from her husband and her father was interested to get a huge compensation from the respondents. In defence, one Jamuna Prasad Yadav (DW-1) was examined. 4. After considering the evidence adduced by both the parties, the trial Court acquitted the respondents from the charges of the offence punishable under Section 498-A of IPC. In criminal appeal, the acquittal directed by the trial Court was confirmed. 5. I have heard the learned counsel for the parties. 6. The learned counsel for the applicant has submitted that the trial Court as well as the appellate Court thought that a compromise took place between the parties and therefore, they ignored the evidence adduced by the prosecution. The offence punishable under Section 498-A of IPC was not compoundable and therefore, there was no effect of the compromise on the merits of the case and hence, both the Courts below have committed an error in acquitting the respondents. Under such circumstances, it is prayed that the respondents No.1 to 3 may be convicted with an effective sentence for the offence punishable under Section 498-A of IPC. 7. After considering the submissions made by the learned counsel for the applicant and perusal of the evidence adduced before the trial Court, the situation emerges that it is alleged by the applicant that there was a demand of dowry from the side of the respondents and they were demanding a sum of Rs. 60,000/- and a washing machine. In this context, the statement of Jagdish Prasad (PW-6) brother of the applicant is perused then, it would be clear that the respondent No.1 demanded a sum of Rs.60,000/- from him for some personal work with the proposal that said amount would be returned after sometime. It means that a sum of Rs.60,000/- was not demanded as dowry, whereas it was demanded as a loan. It means that a sum of Rs.60,000/- was not demanded as dowry, whereas it was demanded as a loan. Jagdish Prasad has not stated that the applicant was beaten because he could not pay a sum of Rs.60,000/-. The witness Jagdish has stated that the washing machine was not demanded as such it was told by the respondents that if they wanted such a machine then, it can be given to the applicant to facilitate her work and if they do not want then, it may not be given and therefore looking to the statement of Jagdish Prasad brother of the applicant, it appears that there was no specifically demand of any dowry from the side of the respondents. 8. Almost, all the witnesses relating to the prosecution have stated that the applicant was assaulted when she was pregnant and therefore, an abortion was caused to her. Basundhara (PW-2) has accepted that when she was taken to her parents house some bleeding was going on and therefore due to advice of the doctor, the abortion took place, but her allegation that the respondents assaulted her by stick is nowhere confirmed. If she was assaulted in such a bad manner so that bleeding was started then what was the problem to Jagdish brother of the applicant, not to take her to various hospitals at Pichhor, whereas there are more than 40 nursing homes available at Pichhor and also there is one medical college at Pichhor. The township Orchha and Pichhor are hardly 20 kms. apart and therefore, she could be examined at Pichhor itself. It is stated that she was admitted in a hospital at Jhansi. Smt. Bitti Bai (PW-3) aunt of the applicant has stated that the respondents No.1 to 3 assaulted the applicant and therefore, an abortion was caused. The applicant was admitted at Jhanshi Medical College. Smt. Batti is aunt of the applicant but she has accepted that she did not visit to the hospital of Jhasi to look after the applicant. It is a strange conduct of Smt. Batti that her niece was in trouble and admitted in the hospital of Jhansi, but she did not take care to visit the hospital of Jhansi. No single paper has been submitted by the applicant to prove that she was injured or an abortion took place due to hurt caused to her. It is a strange conduct of Smt. Batti that her niece was in trouble and admitted in the hospital of Jhansi, but she did not take care to visit the hospital of Jhansi. No single paper has been submitted by the applicant to prove that she was injured or an abortion took place due to hurt caused to her. Also no FIR was lodged about that act soon after the incident. Under such circumstances, the allegations made by the applicant and her witnesses relating to the assault and consequential abortion appear to be incorrect. 9. It is not expected from any father that he would cause a miscarriage of his own child and especially by assaulting upon the abdomen of his wife. It appears that there was some suspicion from the side of the respondent No.1 that the applicant was conceived from someone else and therefore, an abortion was caused at Jhansi Hospital and since it was caused voluntarily, the applicant was unable to give the documents relating to her treatment and abortion. Thereafter a false allegation was made against the respondents that the abortion was caused to the applicant due to the assault caused by the respondents. 10. The allegations made by the applicant Basundhara (PW-2) about the dowry demand were not proved. It is strange that she was beaten in such a bad manner and she or her brother did not lodge any FIR against the respondent at that time. The applicant has also alleged that the respondent Kasturi tried to burn by opening the gas regulator and thereafter, the applicant was directed to go for preparing some tea and then, the respondent Kasturi ignited the gas lighter. It is alleged by the applicant that her cousin Vikram went to the spot on that day and therefore, the applicant went to her parents’ house. Such a drastic incident was caused by the respondent Kasturi. It could be a natural conduct of the applicant that she would have lodged an FIR about that incident but instead of making any FIR, the applicant resided in the house of her parents. Such a drastic incident was caused by the respondent Kasturi. It could be a natural conduct of the applicant that she would have lodged an FIR about that incident but instead of making any FIR, the applicant resided in the house of her parents. It is alleged against the respondents that they were getting the utensils cleaned by the applicant and cloths of the family members be cleaned by her but in the house of medium income group, such type of work is to be done by a housewife and therefore, if she was directed to do such a work then, it cannot be said that any harassment was caused to the victim. It appears that the allegations made against the respondent Kasturi Bai appears to be incorrect and some false allegations were made by the applicant. 11. According to the applicant, she was taken by her brother in the month of June 2001, and thereafter an abortion took place but the complainant did not take any steps against the respondents for more than 15 months. Thereafter, a written report Ex.P/3 was given to the S.H.O. Police Station Orchha, who had no jurisdiction in the case because the alleged harassment was done at the house of the respondents. Looking to the pleadings and format of the written complaint Ex.P/3, it appears that it was prepared by some law knowing person and it was drafted with the false allegations. If such type of harassment was done upon the applicant, then she must have taken the steps within due course but she had not taken any steps. She remained at her parents’ house since June 2001, it appears that the abortion caused to the applicant on her own and therefore, no possibility can be ruled that she was conceived by someone else and she was interested to abort that child. 12. Learned counsel for the applicant has submitted that both the Courts below have only considered about the compromise took place between the parents but it appears that both the Courts below did not consider only the compromise but they have considered the overt act of the applicant that she obtained a sum of Rs.4,50,000/-, which was transferred in a separate account meant for herself and thereafter, she denied about the compromise etc., whereas her signatures were proved by her brother Jagdish on those compromise documents. Hence, looking to the overt act of the applicant, her testimony was unbelievable and rightly disbelieved by the both the Courts below. At present, looking to the conduct of the applicant, it appears that she took a sum of Rs.4,50,000/- by way of a compensation from the respondents No.1 to 3 and they paid that amount to get rid of with the applicant and thereafter, still she was prosecuting her complaint. She appeared before the Court and expressed her voluntariness to do the compromise but when it was not accepted, she did not depose before the Court on that day. She took an adjournment and then appeared after so many months to give her statements. Looking to her conduct, her allegations which were not proved beyond doubt because those were not confirmed according to the evidence of Jagdish brother of the applicant. It would be apparent that there was no demand of dowry from the side of the respondents No.1 to 3 and the applicant could not prove that she was being harassed by the respondents. On the contrary, it appears that she was not interested to live in the house of her husband. She left the house of her husband on her own and her brother as well as uncle etc. were in habit to visit frequently her husband's house to take her to her parents house. Under such circumstances, the applicant could not prove any cruelty or harassment done by the respondents. The learned J.M.F.C. as well as the appellate Court has rightly acquitted the respondents from the charge of the offence punishable under Section 498-A of IPC. There is no basis by which any interference is required from the side of this Court by way of the present revision. Consequently, the revision filed by the applicant cannot be accepted and hence, it is hereby dismissed at motion stage.