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2016 DIGILAW 1579 (RAJ)

Jai Prakash S/o Daulat Ram v. State of Rajasthan

2016-11-07

G.R.MOOLCHANDANI, GOPAL KRISHAN VYAS

body2016
JUDGMENT : G.K. Vyas, J. 1. The instant D.B. Cr. Appeal No.70/2011 has been filled by the accused appellants Jai Prakash, Daulat Ram and Smt. Vidhya Devi under Section 374 (2) Cr.P.C. against the judgment of conviction and sentence dated 25.1.2011 passed by the learned Addl. Sessions Judge (FT) No.2, Hanumangarh headquarter Nohar in Sessions Case No.129/2007 (37/2007) by which the learned trial court convicted the accused appellants Jai Prakash and Daulat Ram for the offences under Sections 304B and 498A IPC and convicted the accused appellant Smt. Vidhya Devi for the offence under Section 498A IPC and passed the following sentences: 1. Accused appellants Jai Prakash and Daulat Ram: Under Section 304B IPC Life Imprisonment with a fine of Rs.5,000/- each and in default of payment of fine to further undergo six months RI Under Section 498A IPC Three years RI and to pay a fine of Rs.1,000/- each and in default of payment of fine to further undergo one month RI 2. Accused appellant Smt. Vidhya Devi: Under Section 498A IPC Three years RI and to pay a fine of Rs.1,000/- each and in default of payment of fine to further undergo one month RI 2. The D.B. Cr. Appeal No.237/2011 has been filled by complainant-appellant Narendra Kumar against the respondents Balmukund S/o Daulat Ram, Vinod Kumar S/o Daulat Ram, Mst. Sumitra W/o Balkukund, Mst. Rekha wife of Vinod Kumar who were acquitted from the charges leveled against them under Section 498A and 304B IPC, so also, against acquittal of Smt. Vidhya Devii wife of Daulat Ram from the offence under Section 304B IPC vide judgment dated 25.1.2011 passed in Sessions Case NO.129/2007 (37/2007). 3. Both the appeals are filled by the accused appellants and complainant against the common judgment dated 15.1.2011 whereby the accused appellants Jai Prakash, Daulat Ram and Smt. Vidhya Devi were convicted for offence under Sections 304B, 498A IPC and 498A IPC respective, therefore, we deemed it appropriate to decide both the criminal appeals simultaneously by this common judgment. 4. 3. Both the appeals are filled by the accused appellants and complainant against the common judgment dated 15.1.2011 whereby the accused appellants Jai Prakash, Daulat Ram and Smt. Vidhya Devi were convicted for offence under Sections 304B, 498A IPC and 498A IPC respective, therefore, we deemed it appropriate to decide both the criminal appeals simultaneously by this common judgment. 4. As per facts of the case, a typed FIR (Ex.P/1) was lodged by the complainant Narendra Kumar at Police Station Nohar on 18.9.2007 at 6.15 pm in which following allegations were leveled by him, which reads as under: Þlsok esa] Jheku~ ,l0,p0vks0 lkgc] iqfyl Fkkuk] uksgjA Jheku~ th] ÁkFkhZ dh yM+dh ik;y dh 'kknh fnukad 17-05-2006 dks t;Ádk'k iq= Jh nkSyrjke egktu lkfdu QSQkuk ds lkFk ,syukckn esa fgUnw fof/k ls lEiUu gqbZ FkhA ÁkFkhZ us viuh yM+dh dh 'kknh esa dkQh ngst fn;k Fkk fdUrq ik;y ds llqjky okys ÁkFkhZ }kjk fn;s x;s ngst ls [kq'k ugha Fks rFkk de ngst ykus ds rkus mldk ifr t;Ádk'k] lkl] llqj nkSyrjke] tsB fouksn o mldh iRuh] tsB ckyeqdan o mldh iRuh nsrs Fks rFkk de ngst ykus dh otg ls ik;y ds lkFk leLr eqfYteku ekjihV djrs FksA ik;y ds ,d cPph ,syukckn esa iSnk gqbZ yM+dh iSnk gksus ls leLr eqfyteku vkSj vf/kd ukjkt gks x;sA djhc 5&6 fnu igys ik;y dk ifr t;Ádk'k ik;y dks ,syukckn ls QSQkuk ys vk;k] QSQkuk ykus ds ckn leLr eqfYteku us ik;y dks ngst ds fy, rkus nsus 'kq: dj fn, rFkk mlds lkFk ekjihV djuh 'kq: dj nhA eqfyteku vkSj vf/kd ngst ykus o thi dh ekax djrs FksA ik;y us leLr ckrsa VsfyQksu }kjk ÁkFkhZ o ÁkFkhZ ds ifjokj dks crkbZ FkhA dbZ nQk ÁkFkhZ us iapk;r Hkh dh FkhA dy fnukad 17-09-2007 dks jkr ds djhc 9 cts ik;y us ÁkFkhZ dks Qksu fd;k fd vkt eq>s esjs ifr] lkl] llqj] tsB fouksn o mldh iRuh tsB ckyeqdan o mldh ifRu us esjs lkFk ekjihV dh rFkk ngst esa thi ugha ykus dh otg ls ekjihV dh rFkk tku ls ekjus dh /kedh ns jgs gSaA ,oa vkt 11 cts lqcg ÁkFkhZ dks lwpuk feyh dh ik;y dks tykdj mldh gR;k mlds llqjky okyksa us dj nh gSA ÁkFkhZ vius nks yM+dks nhid o vfuy o nkSyrjke vxzoky o jruyky] j?kqohj] enuyky vkfn dks ysdj QSQkuk vk;k rks ÁkFkhZ dh yM+dh tykbZ gqbZ voLFkk esa vius llqjky ds edku esa iM+h FkhA ?kj esa dksbZ ugha Fkk] ÁkFkhZ dh yM+dh dks mlds llqjky okys mls ifr] lkl] llqj tsB fouksn mldh iRuh o tsB ckyeqdUn o mldh iRuh us tyk dj gR;k dj nh gSA yk'k tyh gqbZ muds ?kj esa iM+h gSA vr% ÁkFkZuk i= ÁLrqr dj fuosnu gS fd dkuquh dk;Zokgh djus dh Ñik djsaA ÁkFkhZ ujsUædqekj iq= Jh gfjjke egktu vxzoky lkfdu ,syukckn ¼gfj;k.kk½ 5. Upon aforesaid written complaint filed by the complainant Narendra Kumar (PW-1) formal FIR no.527 dated 18.9.2007 (Ex.P/2) was registered at Police Station, Nohar under Section 304B and 498A IPC against seven persons. 6. After investigation, charge-sheet was filed only against Jai Prakash, Daulat Ram and Smt. Vidhya Devi under Section 304B and 498A IPC and no charge-sheet was filed against remaining named persons in the FIR. The charge-sheet was filed in the court of Addl. Chief Judicial Magistrate, Nohar from where case was committed to the court of District & Sessions Judge, Hanumangarh, later on transferred for trial in the court of Addl. District & Sessions Judge (FT) No.2, Hanumangarh headquarter Nohar. In the trial, charges under Sections 498A and 304B IPC were framed against the accused appellant Jai Prakash , Daulat Ram and Smt. Vidhya Devi W/o Daulat Ram after providing an opportunity of hearing to them. 7. All the three accused appellants denied charges leveled against them and prayed for trial. In the trial, statements of PW - 1 Narendra Kumar, PW - 2 Rajendra Prasad, PW - 3 Daulat Ram S/o Jagdish Rai and PW - 4 Raghuveer, PW - 5 Dr. Sant Lal Chhimpa and PW - 6 Vipin Sharma were recorded. Thereafter, an application was filled under Section 319 Cr.P.C. for adding accused Vinod Kumar, his wife Rekha, Balmukund and his wife Smt. Sumitra, both brother-in-law and sister-in-law (Jeth and Jethani). The said application filled under Section 319 Cr.P.C. was accepted by the learned trial court and they were added as an accused during trial. 8. The learned trial court framed charge under Section 304B and 498A IPC against all the four accused added vide order dated 29.7.2008 upon application filled under Section 319 Cr.P.C. and commenced the trial. 9. It is very important to mention here that entire prosecution case was based upon the statements of 43 witnesses whose names were included in the list of witnesses filled along with the charge-sheet, but in the trial only six witnesses were produced to prove the case, including witnesses of investigation, thereafter, statement of all the accused who were tried were recorded by the learned trial court under Section 313 Cr.P.C. 10. In the trial, all the accused denied the allegations leveled by the prosecution witnesses and the accused appellant Jai Prakash specifically gave explanation and prayed for granting an opportunity to lead oral evidence in defence. In defence, the statement of five witnesses were recorded including DW-4 Dr. Ajay Kumar Chetal who gave treatment to the deceased. 11. After recording oral evidence of defence, the learned trial court finally heard the arguments of both the side and convicted the accused appellant Jai Prakash and Daulat Ram for offence under Sections 498A and 304B IPC and convicted the accused appellant Smt. Vidhya Devi for the offence under Section 498A IPC but acquitted from the charge leveled against her under Section 304B IPC, so also, acquitted Vinod Kumar, Rekha, Balmukund and Sumitra from the charges leveled against them under Section 304B and 498A IPC vide judgment dated 25.1.2011 in Sessions Case No.129/2007 (37/2007). 12. The accused appellants Jai Prakash, husband of the deceased Payal and Daulat Ram, father of the accused Jai Prakash and Smt. Vidhya Devi, mother of Jai Prakash are challenging validity of the judgment whereas the complainant Narendra Kumar is challenging finding of acquittal of Balmukund, Vinod Kumar and Smt. Sumitra and Rekha for the offence under Sections 304B and 498A IPC and for respondent Vidhya Devi for the offence under Section 304B IPC. 13. The learned counsel for the appellants while attacking upon the finding of the learned trial court submits that the learned trial court has committed a grave error while holding the accused appellant Jai Prakash and Daulat Ram guilty for offence under Section 304B and 498A IPC because no reliable and trustworthy evidence is on record to prove the allegation for demand of dowry soon before the occurrence. It is also submitted that in the charge sheet filed against the accused appellants, 43 witnesses were shown in the list of prosecution witnesses, but only six witnesses were produced in the trial to prove prosecution case for offence under Section 304B and 498A IPC. Out of six witnesses, PW - 1 Narendra Kumar is the father of deceased, PW - 2 Rajendra Prasad is close friend of PW - 1 Narendra Kumar, PW - 3 Daulat Ram is uncle (Mausa) of deceased and PW - 4 Raghuveer is elder father (Tau) of the deceased. PW - 5 is Dr. Out of six witnesses, PW - 1 Narendra Kumar is the father of deceased, PW - 2 Rajendra Prasad is close friend of PW - 1 Narendra Kumar, PW - 3 Daulat Ram is uncle (Mausa) of deceased and PW - 4 Raghuveer is elder father (Tau) of the deceased. PW - 5 is Dr. Santlal Chhimpa and PW - 6 is investigating officer Vipin Sharma. Upon perusal of statement of PW - 1 Narendra Kumar, PW - 2 Rajendra Prasad, PW - 3 Daulat Ram and PW - 4 Raghuveer PW - 6 Vipin Sharma, investigating officer it will reveal that all the four witnesses (PW - 1 to PW - 4) are close relatives of the deceased, none of them were made allegation prior to the present incident, so also, submitted altogether different story than the story come out in the investigation conducted by PW - 6 Vipin Sharma, therefore, the learned trial court was under obligation to consider the important and vital aspect of the case at time of considering the case of the accused appellant Jai Prakash and Daulat Ram for offence under Section 304B IPC. 14. According to the learned counsel for the appellant the conviction can be based upon presumption under Section 304B IPC, but at the same time, the prosecution is required to prove the fact that soon before the death of deceased, there was demand of dowry. In this case, as per allegation of prosecution, leveled in the FIR (Ex.P/1) a specific statement was made by the complainant Narendra Kumar (PW - 1) that on 17.9.2007 in the night at 9“O Clock a phone call was received by him from deceased Payal in which she made an allegation today I have been given beating by my husband, mother-in-law, father-in-law, elder brother- in-laws Vinod Kumar and Balmukund and their wifes and they are demanding vehicle jeep and they gave threat that if you will not bring jeep then you will be murdered. 15. To prove the aforesaid fact although PW - 1 Narendra Kumar made allegations, but in defence the witness DW - 5 A.C. Nemiwal who was working on the post of Dy. 15. To prove the aforesaid fact although PW - 1 Narendra Kumar made allegations, but in defence the witness DW - 5 A.C. Nemiwal who was working on the post of Dy. Divisional Engineer in BSNL Office, Bhadara was summoned upon request made by the defence, the said witness specifically stated before the court that in the house of accused party in the village of Fefana the number of basic phone is 230292 , but the said telephone connection was disconnected on 15.9.2007 due to non-payment of bill. PW - 1 Narendra Kumar specifically stated in the cross-examination that phone number of the house of accused Jai Prakash is 230292. Meaning thereby, a concocted story has been framed by the witness PW - 1 Narendra Kumar, author of the FIR so as to involve whole of the family members for the offence under Section 304B and 498A IPC, therefore, the judgment impugned is totally based upon fabricated story. 16. Learned counsel for the appellants further argued that complainant PW - 1 Narendra Kumar involved whole of the family in the case, but after investigation, charge-sheet was filed only against three persons namely Jai Prakash, Daulat Ram and Smt. Vidya Devi for offence under Section 304B and 498A IPC and after recording statement of four witnesses PW - 1 Narendra Kumar, PW - 2 Rajendra Prasad, PW - 3 Daulat Ram, and PW - 4 Raghuveer an application was moved on behalf of the complainant under Section 319 Cr.P.C. in which cognizance was taken against Balmukund and Viond Kumar, brothers of the accused appellant Jai Praaksh and Sumitra W/o Balmukund and Rekha W/o Vinod Kumar for offence under Section 304B and 498A IPC, but learned trial court after recording entire evidence acquitted Balmukund, Vinod Kumar, Sumitra and Rekha from the charges leveled against them so as acquitted Smt. Vidhya Devi W/o Dault Ram from the charge under Section 304 B IPC. Meaning thereby, the learned trial court disbelieved the evidence of prosecution as against Balmukund, Vinod Kumar, Sumitra and Rekha for committing offence under Section 304B and 498A IPC because they are residing separately, so also, disbelieved the testimony of prosecution witnesses for the charge of Section 304B IPC against Smt. Vidya Devi and convicted her only for offence under Section 498A IPC, therefore, it is obvious that whole prosecution case is based upon false and fabricated story which is not proved by the prosecution, but unfortunately, the learned trial court held accused appellants Jai Prakash and Daulat Ram guilty for offence under Section 304B and 498A IPC, so also held accused appellant Smt. Vidya Devi guilty for offence under Section 498A IPC, but finding given by the learned trial court is not sustainable in law. 17. Learned counsel for the appellants further argued that in the list of witnesses name of Sunil Kumar, Raj Kumar and Hari Ram were included. The witness Sunil Kumar is neighbor of appellants and Raj Kumar and Hari Ram are the witnesses to prove the fact that there was money dispute in between accused Jai Prakash and PW-1 Narendra Kumar, but intentionally these witnesses were not produced by the prosecution in defence, accused appellants produced them as defence witness DW-1 Raj Kumar, DW-2 Hari Ram and DW-3 Sunil and out of these witnesses DW-3 Sunil Kumar who was arrayed as witness in the charge-sheet being defence witness stated before the court that my house is just adjacent to the house of Daulat Ram and Daulat Ram is having five sons namely Balmukund, Hari Kumar, Pradeep, Vinod Kumar and Jai Prakash and all these brothers are living separately. Further, the said witness stated on oath that on 18.9.2007 in the morning in between 10 to 10.30 am I heard hue and cry of a lady, at that time, I and Sohan Lal immediately went in front of house of Daulat Ram, but house was closed and we have tried to open door, but door was not opened. Thereafter, from the house of Krishan Kumar, they entered in the house of Daulat Ram and opened the door, thereafter, they entered inside the house where wife of the accused appellant Jai Prakash was burning and she was alive at that time. Thereafter, from the house of Krishan Kumar, they entered in the house of Daulat Ram and opened the door, thereafter, they entered inside the house where wife of the accused appellant Jai Prakash was burning and she was alive at that time. Upon asking it is stated by her that I myself lit fire, therefore, they put some cloths upon her body for rescue and, thereafter, we have sent Sohan Lal to inform Daulat Ram to his shop. Thereafter, all the family members came there and injured Payal was taken to the hospital in the car of one Rajendra Bhadu for treatment. In the cross-examination of this witness no question was put by the prosecution with regard to demand of dowry or the incident, but unfortunately, the learned trial court disbelieved testimony of this witness. 18. Learned counsel for the appellants submits that the statement of DW-3 Sunil Kumar @ Hathi is further supported by DW-4 Dr. Ajay Kumar Chetal, who has categorically stated that on 18.9.2007 when I was working in the CHC, village Fefana as medial officer, on that date, in the morning at about 11.15 am one lady Payal was brought to the hospital for treatment in burnt condition to whom I gave treatment and referred to the higher center for further treatment after making entry in the OPD register at S.No.10226 on 18.9.2007 and specifically mentioned that referred to higher center. The said register was produced before the court as Ex.D/6, but no cross-examination was made from this doctor by the prosecution. 19. Learned counsel for the appellants submits that the whole prosecution story framed by the complainant party is false which is evident from the fact that out of 43 witnesses named in the list of witness submitted along with the charge-sheet by the prosecution, only six witnesses were produced before the court including investigating officer PW - 6 Vivin Sharma and PW - 5 Dr. Santlal Chhimpa who has conducted post mortem. Therefore, it is a case in which grave error has been committed by the learned trial court so as to hold accused appellant Jai Prakash and Daulat Ram guilty for offence under Section 304 B IPC. 20. Santlal Chhimpa who has conducted post mortem. Therefore, it is a case in which grave error has been committed by the learned trial court so as to hold accused appellant Jai Prakash and Daulat Ram guilty for offence under Section 304 B IPC. 20. Learned counsel for the appellants submits that upon same set of evidence, the learned trial court acquitted accused appellant Smt. Vidya Devi, mother in- law of the deceased Payal from the charge under Section 304B IPC, but convicted the father-in-law Daulat Ram for offence under Section 304B IPC along with for the offence under Section 498A IPC, therefore, on this count also, the finding of the learned trial court with regard to commission of offence under Section 304B IPC deserves to be set aside. 21. Learned counsel for the appellants submits that no error has been committed by the learned trial court so as to acquit four other accused who were arrayed as accused upon application filed under Section 319 Cr.P.C. because these are the persons living separately but having relation with Jai Prakash being brothers and sister-in-laws, therefore, the appeal of the complainant Narendra Kumar against acquittal of Balmukund, Vinod Kumar, Smt. Sumitra and Smt. Rekha have no force of law because prosecution has miserably failed to prove its case against all the accused appellants as well as respondents of Cr. Appeal No.237/2011 filed by the complainant Narendra Kumar against acquittal of four persons. 22. Without prejudice to above submissions, it is submitted by the learned counsel for the appellants that as per evidence on record there was money dispute in between the accused appellant Jai Prakash and PW - 1 Narendra Kumar, father-in-law of Jai Prakash, therefore the complainant fabricated the story whereas it is a case of suicide, therefore, sentence of life imprisonment against the accused appellant Jai Prakash for offence under Section 304B IPC may be reduced to already undergone and the conviction of the accused appellant Daulat Ram under Section 304B IPC may kindly be set aside because the accused appellant Daulat Ram is more than 80 years of age. It is also submitted that the accused appellant Smt. Vidya Devi is on bail, but she was convicted for offence under Section 498A and she is also more than 80 years of age, therefore, sentence awarded to her also may be reduced to already undergone. 23. It is also submitted that the accused appellant Smt. Vidya Devi is on bail, but she was convicted for offence under Section 498A and she is also more than 80 years of age, therefore, sentence awarded to her also may be reduced to already undergone. 23. In support of his arguments, the learned counsel for the appellants invited our attention towards the judgment reported in 2016 Supreme (SC) 453 : Jawala Prasad v. State of Chhattisgarh & Ors.:, 2016 Cr.L.J. 1434 State of Karnataka v. Dattaraj & Ors, AIR 2016 (SC) 287 : State of Maharashtra v. Hemant Kawadu Chauriwal Etc and 2016(3) CJ (Cri.) (SC) 700 : Onkar v. State of Punjab and submits that the conviction of the accused appellants for offence under Section 304B IPC may kindly be set aside. 24. Per contra, learned Public Prosecutor as well as learned counsel for the complainant vehemently argued that in the charge-sheet names of 43 witnesses were included to prove the prosecution case but during trial only six witnesses were produced before the court for the simple reason that for offence under Section 304B IPC, presumption is to be drawn against the accused because marriage of deceased Payal was solemnized with accused appellant Jai Prakash on 17.5.2006, but she died due to burn in his house on 18.9.2007, just after one year and four months. It is also submitted that all the four witnesses categorically stated before the court that there was demand of dowry by the accused party and on 17.9.2007 just day before the occurrence, the deceased made a phone call to PW - 1 Narendra Kumar and said that today she has been given beating by her husband Jai Prakash, father-in-law Daulat Ram, mother-in-law Smt. Vidhya Devi, Balmukund and Vinod Kumar, elder brother of her husband and their wives Sumitra and Rekha for demand of vehicle jeep and this fact is established by the prosecution by leading trustworthy evidence, therefore, no error has been committed by the learned trial court so as to hold accused appellant Jai Prakash and Daulat Ram for offence under Section 304B and 498A IPC and to convict the accused appellant Vidhya Devi for offence under Section 498A IPC. 25. 25. The learned counsel for the complainant further argued that the learned trial court committed error while acquitting four persons namely Balmukund, Vinod Kumar, Sumitra and Rekha in spite of the fact that there is same evidence on record against them upon which Daulat Ram, father-in-law was convicted for offence under Section 304B and 498A IPC, therefore, they are also liable to be convicted for offence under Section 304B and 498A IPC. While supporting the prosecution case it is submitted that the marriage of deceased Payal was solemnized with the accused appellant Jai Prakash on 17.5.2006 and soon after the marriage, she was harassed like anything by the in laws for demand of jeep and this fact is proved by producing four witnesses, but the learned trial court convicted only two accused appellants Jai Prakash and Daulat Ram for offence under Section 304B and 498A IPC, therefore, it is a case in which the learned trial court ought to have convicted all the accused appellants for offence under Section 304B and 498A IPC along with main accused Jai Prakash and Daulat Ram, husband and father-in-law of the deceased Payal. 26. The learned Public Prosecutor as well as learned counsel for the complainant vehemently argued that there is no error in the finding for conviction against the accused appellants Jai Prakash and Dalat Ram but it is argued that in the appeal filed by the complainant, the prayer has been made to quash the finding of the learned trial court for other accused and they may also be convicted for the same offence under Section 304B and 498A IPC. 27. In support of their arguments, the prosecution has invited our attention towards the two judgments reported in 2015 (3) CJ (Cri) (SC) 825 : Amrut Lal Liladharbhai Kotak & Anr. Vs. State of Gujarat and 2016 (2) CJ (Cri.) (SC) 459 : Maya Devi & Anr. 27. In support of their arguments, the prosecution has invited our attention towards the two judgments reported in 2015 (3) CJ (Cri) (SC) 825 : Amrut Lal Liladharbhai Kotak & Anr. Vs. State of Gujarat and 2016 (2) CJ (Cri.) (SC) 459 : Maya Devi & Anr. v. State of Haryana and stated that according to these verdicts of Hon'ble Supreme Court there is no error in the conviction of accused appellants Jai Prakash and Daulat Ram for offence under Section 304B and 498A IPC, so also, prayed that finding of the learned trial court with regard to acquittal of five accused for offence under Section 304B and 498A IPC deserves to be quashed and set aside and they are liable to be convicted for the said offence because evidence is same against all the accused named in the FIR. Therefore, the appeal of accused appellants Jai Prakash, Daulat Ramand Vidya Devi may kindly be dismissed and appeal filed by the complainant Narendra Kumar may kindly be accepted and the accused appellant Vidhya Devi may be convicted for offence under Section 304B IPC and other four persons Balmukund, Vinod Kumar, Smt. Sumitra and Smt. Rekha brothers and wife of brothers of the accused appellants Jai Prakash may also kindly be convicted for the offence under Sections 304B and 498A IPC. 28. After hearing the learned counsel for the parties, we have minutely scanned the entire evidence. There is no dispute with regard to the fact that charge-sheet was filed against three persons Jai Prakash, Daulat Ram and Vidhya Devi by the police after investigation. After framing charge under Section 304B and 498A IPC, statements of four witnesses PW - 1 Narendra Kumar, PW - 2 Rajendra Prasad, PW - 3 Daulat Ram, and PW - 4 Raghuveer were reported and, thereafter, an application under Section 319 Cr.P.C. was filed for taking cognizance and to add four more persons as accused on the basis of testimony of these witnesses. The learned trial court accepted the application filed under Section 319 Cr.P.C. and took cognizance against Balmukund, Vinod Kumar, Smt. Sumitra and Smt. Rekha and added them as accused for the purpose of trial for offence under Section 304B and 498A IPC. The learned trial court accepted the application filed under Section 319 Cr.P.C. and took cognizance against Balmukund, Vinod Kumar, Smt. Sumitra and Smt. Rekha and added them as accused for the purpose of trial for offence under Section 304B and 498A IPC. During trial, against all the accused the statements of six witnesses were recorded, out of which, PW - 1 Narendra Kumar (complainant) is father of deceased Payal, PW - 2 Rajendra Prasad is close relative of her father, PW - 3 Daulat Ram is uncle (Mausa) of deceased and PW - 4 Raghuveer is the elder father of deceased. The other witnesses out of 43 witnesses included in the list of witness to prove the prosecution case were examined in the trial. PW - 1 Narendra Kumar father of the deceased made allegation in the FIR (Ex.P/1) and in his statement in the court as PW - 1 that on 17.9.2007 in the night at 9''O Clock my daughter Payal made a phone call and informed that I have been assaulted by my mother-in-law, father-in-law, husband, brother-in-laws and sister-in-laws and they are demanding vehicle jeep and gave threatening that if you will not bring jeep or money for jeep you will be killed. To prove this case, no evidence was produced by the prosecution, but in the cross-examination a specific question was put to the witness PW - 1 Narendra Kumar in the cross-examination about his phone number. The PW - 1 Narendra Kumar stated before that court that Þesjs ?kj ij VsyhQksu gS] ftldk uEcj 223435 gSA t;izdk'k eqyfte dk QSQkuk dk Qksu ua0 230292 gS tks fouksn dqekj ds uke ls gSA ;g dguk xyr gS fd esjh yM+dh ik;y dh vkdfLed e`R;q gks tkus ds dkj.k nq%[kh gksdj dkuwuh jk; ls esa c<+k&p<+kdj xyr c;ku ns jgk gksmaAÞ 29. To disprove this fact, in defence, statement of DW-5 A.C. Nemiwal were recorded. The said witness was working on the post of Dy. Divisional Engineer in BSNL Office, Bhadra who has categorically stated on oath before the court that basic phone installed in the house of accused at village Fefana was disconnected on 15.9.2007. To disprove this fact, in defence, statement of DW-5 A.C. Nemiwal were recorded. The said witness was working on the post of Dy. Divisional Engineer in BSNL Office, Bhadra who has categorically stated on oath before the court that basic phone installed in the house of accused at village Fefana was disconnected on 15.9.2007. The following statement is given by him, which reads as under: ÞeSa VsyhQksu foHkkx esa 1984 esa dk;Zjr gwaA gekjs foHkkx esa vnk;xh u gksus dh otg ls VsyhQksu lEca/k foPNsn dh i=koyh lgh rjhds ls j[kh tkrh gSA lEca/k foPNsn ekg flrEcj&2007 dh i=koyh vkt eSa lkFk yk;k gwa] tks dEI;wV~hd`r gSA QSQkuk ds csfld Qksu uEcj 230292 dk lEca/k foPNsn gekjs foHkkx }kjk Hkqxrku u gksus ds dkj.k fnukad 12-09-2007 dks guqekux<+ ls vkns'k gksus ds ckn fnukad 15-09-2007 dks fd;k x;kA fnukad 15-09-2007 dks bl Qksu dh vkmVxksbZax yxHkx nksigj ckn can gqbZ Fkh] ,DtsDV le; eSa ugha crk ldrkA bl Qksu dks dkVus dh dEI;wVjkbZt lwph vkt eSa lkFk yk;k gwWa ftlesa ;g izfof"V izn'kZ Mh&7 gS tks ist ua0 3 ij gS ftl ij , ls ch vafdr fd;k x;k gSA bldh QkVks izfr izn'kZ Mh&7&, gSAÞ 30. Upon considering the aforesaid evidence, we have no hesitation to say that prosecution has failed to prove fact that any phone call was made by the deceased on 17.9.2007 village Fefana, therefore, the learned trial court ought to have consider this aspect of the matter in right perspective, but upon perusal of finding, we are of the opinion that the learned trial court has not considered the statement of DW-5 A.C. Nemiwal in right perspective and wrongly disbelieved his testimony and to accept the fact of telephone call. 31. We have perused the statement of the accused appellant Jai Prakash recorded under Section 313 Cr.P.C.. 31. We have perused the statement of the accused appellant Jai Prakash recorded under Section 313 Cr.P.C.. The accused appellant Jai Prakash husband of the deceased gave following explanation, which reads as under:- ÞeSaus viuk V~sDVj cspdj ,syukckn esa crZuksa dh nqdku dh FkhA nqdku ugha pyhA rc eSaus esjs llqj ujsUnz ds dgus ij esjh nqdku ds crZu ujsUnz dks nsdj QSQkuk vk x;kA QSQkuk esa ijpwu dh nqdku dhA ysfdu iwath ugha gksus ls nqdku ugha pyhA eSaus esjs lqlj ujsUnz ls esjs :i;s ekaxsA og :i;s nsus esa vkuk dkuh djrk jgkA ftl ij esjh mlls cksypky gks xbZA ckj&ckj :i;s ekaxus ij Hkh ujsUnz esjs :i;s ugha ns jgk FkkA rc Qjojh] ekpZ 2007 esa eSaus vius HkkbZ gjhjke] esjs QwQk ckcwyky o jktdqekj tks 'kknh dk fcpksyk Fkk] oxSjk dks ysdj iapk;r dhA iapk;r esa ujsUnz Lo;a mlds yM+ds vfuy@lksuw] nhid ekStwn FksA fglkc djus ij esjs dqy 63772@& #0 ujsUnz dh vkSj fudysA ftlds fglkc dk ipkZ ujsUnz iq= vfuy@lksuw us [kqn fy[kdj fn;k tks EXD-2 gSA ujsUnz us vkfFkZd raxh gksus ls ugha fn,A fglkc dk ipkZ jktdqekj ds ikl jgkA rHkh eSaus iapk;r esa dgk fd esjh iRuh ik;y ls ujsUnz nl gtkj :i;s ysdj vk;k Fkk tks fnyok;s tkosA ujsUnz us 10000@& :0 ik;y ls ysuk Lohdkj fd;k FkkA fyf[kr esa Hkh vkfFkZd raxh crkdj ;s :i;s ugha fn;sA ftldh fyf[kr ujsUnz ds yM+ds nhid us viuh gkFk ls esjs lkeus fy[kdj nhA ftldh QksVks dksih EXD-4 gSA QSQkuk NksVk xkao gS blfy, esjh iRuh ik;y us vius lksus ds xgus djhc pkyhl rksyk vius ekWa ds ikl ,syukckn NksM+ j[ks gSaA rkjh[k 21-09-2007 esjs cM+s HkkbZ gjhjke dh yM+dh dh 'kknh gksuh FkhA blfy, rk0 18-09-2007 dks esjh ekWa] HkkHkh js[kk iRuh fouksn ,syukckn 'kknh esa 'kkfey gksus ,syukckn tk jgh FkhA mUgksaus esjh iRuh ik;y dks lkFk pyus dk dgkA ysfdu ik;y us bUdkj dj fn;kA eSa rkjh[k 18-09-2007 dks lqcg nqdku tkus yxk rks esjh iRuh us eq>s crk;kA ekrkth lkl] tsBkuh js[kk 'kknh esa ,syukckn lkFk pyus ds fy, dgk FkkA ysfdu eSaus bUdkj dj fn;k D;ksafd 'kknh esa nsus ds fy, dksbZ migkj ugha gS o iguus ds fy, eaxylq= Hkh ugha gSA ,sls [kkyh gkFk o uaxh] cwaph dSls 'kknh esa tkrhA eSaus esjh iRuh dks dkQh lkaRouk nsuk pkgkA ysfdu og cgqr f[kUu] mnkl FkhA eSa nqdku ij pyk x;kA ujsUnz esjs lqlj o esjh lkl us gekjs :i;s o ik;y ds xgus gM+i fy,A ,slh gkyr esa ik;y volkn esa vk xbZ FkhA vkSj vkRegR;k dj yhA bl ?kVuk dh lwpuk eq>s dkyw@vuhy 'kekZ us nhA ftl ij eSa] esjk HkkbZ cky eqdqUn] fouksn oxSjk Hkkx dj ?kj igqaps o ik;y dks ?kk;y voLFkk esa ysdj rqjar bykt ds fy, jkt0 fpfdRlky; QSQkuk esa ys x;sA tgkWa Mk0 vt; dqekj us ns[kdj vkxs jsQj dj fn;kA fljlk ls tkrs le; jkLrs esa ik;y dh e`R;q gks xbZA eSa csxqukg gwWaA eq>s >wBk Qalk;k x;k gSAÞ 32. In the list of witnesses name of neighbor DW-3 Sunil Kumar @ Hathi was included at S.No.10 but the said witness was not produced before the court, but accused appellants produced him as defence witness. DW-3 Sunil Kumar @ Hathi gave following statement in the court, which reads as under:- Þesjk edku nkSyrjke ds edku ds if'pr esa fpirk gqvk gSA nkSyrjke ds ikap yM+ds gSa ftuds uke ckyeqdqan] gjhdqekj] iznhi] fouksn dqekj o t; izdk'k gSaA ;s lHkh HkkbZ vyx&vyx jgrs gSa buds edku Hkh vyx gSa rFkk nqdkusa Hkh vyx gSaA t;izdk'k nkSyrjke ds edku esa ugha jgrk vyx jgrk gSA buds ,d gh edku esa vyx&vyx fgLls iklZu gSA ihNs ds fgLls esa t;izdk'k o vkxs nkSyrjke jgrk gSA fnukad 18-09-2007 dks nl lk<+s+&nl cts fnu esa eSaus nkSyrjke ds ?kj esa vkSjr ds fpYykus dh vkokt lquh] fd eSa ty xbZ&ty xbZA bl ij eSa o lksgu yky nkSyrjke ds edku ds vkxs x,] nkSyrjke ds edku dk njoktk can Fkk geus [kksyus dh dksf'k'k dhA ikl gh Ñ".kyky] ghjkyky o jke eksgu Fks tks ogka vk x,A fQj d`".k dqekj Hktuyky ds edku ls gksdj lhf<+;ksa ls tkdj nkSyrjke dk edku [kksyk] fQj ge vnaj x,A geus ns[kk fd ik;y iRuh t;izdk'k ty jgh FkhA ml le; ik;y thfor Fkh] ik;y cksyh fd esjs dks cpkvks eSa vius vki ty xbZA fQj geus ik;y dks diM+s Mkydj cq>k;kA fQj geus lksgu ds iq= vfuy dks nkSyrjke oxSjg dks cqykus nqdku HkstkA fQj ;s lHkh ogka vk x, FksA fQj jktsUnz Hkknw dh dkj eaxokdj ik;y dks dkj esa Mkydj bykt ds fy, ckyeqdqan] fouksn oxSjg vLirky ys x,A eSaus dHkh Hkh ik;y dks mlds llqjky okyksa }kjk ngst ckcr ekjihV ;k rax djus dh ?kVuk ugha ns[khA ;g t;izdk'k igys ,syukckn esa crZuksa dh nqdku djrk Fkk rc nqdku u pyus ij og QSQkuk vkdj ijpwu dh nqdku djus yxkA ml fnu nkSyrjke o fouksn dh iRuh ?kj ij ugha Fkh os lqcg lkr cts cl ls ,syukckn ds fy, jokuk gqbZ Fkh D;ksafd ogka gjhjke dh iq=h dh lxkbZ gksuh FkhAÞ 33. Upon perusal of statement of accused appellant Jai Prakash under Section 313 Cr.P.C. and statement of DW-3 Sunil Kumar @ Hathi neighbor of the accused appellants resident of Fefana, we are of the opinion that it was the duty of the prosecution to prove its case beyond reasonable doubt. Upon perusal of statement of accused appellant Jai Prakash under Section 313 Cr.P.C. and statement of DW-3 Sunil Kumar @ Hathi neighbor of the accused appellants resident of Fefana, we are of the opinion that it was the duty of the prosecution to prove its case beyond reasonable doubt. The witness DW-3 Sunil Kumar @ Hathi categorically stated before the court that he reached at spot along with Sohan Lal, at that time, no family members were in the house and he and other two persons opened the door and entered in the house and, thereafter, gave information to Daulat Ram and, thereafter, Payal was taken to the hospital for treatment by them. DW-4 Dr. Ajay Kumar Chetal who was also one of the witness in the list of witness furnished along with the charge-sheet produced as defence witness categorically stated before the court that deceased Payal was taken to the hospital and he gave treatment to her on 18.9.2007 at about 11.15 am and, thereafter, referred her to higher center. The DW-4 Dr. Ajay Kumar Chetal who was also one of the witness in the list of witness furnished along with the charge-sheet produced as defence witness categorically stated before the court that deceased Payal was taken to the hospital and he gave treatment to her on 18.9.2007 at about 11.15 am and, thereafter, referred her to higher center. The DW-4 Dr. Ajay Kumar Chetal gave the following statement, which reads as under: Þfnukad 18-09-2007 dks eSa lh0,p0lh0 QSQkuk esa fpfdRlkf/kdkjh ds in ij dk;Zjr Fkk] ml fnu le; djhc lok X;kjg cts fnu esa ,d vkSjr ftldk uke ik;y mez djhc 22 o"kZ fuoklh QSQkuk dh Fkh] tks yxHkx 'kr&izfr'kr tyh gqbZ voLFkk esa bykt gsrq vLirky esa ysdj vk,A eSaus ejht dks vVS.M fd;k] mls nnZ&fuokjd batSD'ku nsdj gk;j lsUVj ij bykt gsrq jSQj fd;k vkSj ejht dk bUnzkt fpfdRlky; esa vks0ih0Mh0 jftLV~j esa fd;kA vks0ih0Mh0 jftLVj ds Øekad 10286 nSfud Øekad 14 fnukad 18-09-2007 ij ejht ik;y ds vLirky esa nkf[ky gksus ds bUnzkt ds lkeus jSQj Vw gk;j lsUVj tks , ls ch fgLlk esa gS ;g esjk dyeh gS] mDr bUnzkt jftLVj esa izn'kZ Mh&6 gS] ftldk fgLlk , ls ch esjk dyeh gSA ;g jftLV~j vfHk;qDrx.k ds vf/koDrk Jh d`".k nso R;kxh us U;k;ky; esa is'k fd;kA izn'kZ Mh&6 dh QksVksa izfr ij izn'kZ Mh&6&, Mkyk x;kA ik;y dks bykt ds fy, vLirky esa mlds fj'rsnkj gh ysdj vk, Fks] iqjkuh ckr gks xbZ gS blfy, eSa ;g ugha crk ldrk fd ik;y dks mldk ifr ysdj vk;k ;k ugha] ejht ds lkFk nks&pkj vkneh FksA izn'kZ&6 izfof"V dk jftLVj lh0,p0lh0 QSQkuk esa fu;fer :i ls la/kkfjr fd;k tkrk gSA tks es ejht vLirky esaa vkrk gS mldk bUnzkt bl jftLV~j esa fd;k tkrk gSAÞ 34. Upon consideration of the entire evidence it emerges from the evidence that the day on which occurrence took place, the family members were not in the house and this fact is accepted by the witness PW - 7 Vipin Sharma, who has conducted investigation in the case. Upon consideration of the entire evidence it emerges from the evidence that the day on which occurrence took place, the family members were not in the house and this fact is accepted by the witness PW - 7 Vipin Sharma, who has conducted investigation in the case. PW - 6 Vipin Sharma stated before the court that in my investigation I find that Vidhya Devi, mother-in-law of deceased and Rekha were not in the town and they went Elanabad in the night at 8''O Clock and accused appellant Daulat Ram was on his shop where he was given information by Mohan Lal Sharma and soon after receiving information, Daulat Ram became unconscious and after receiving information Jai Prakash and Balmukund took payal in the hospital for treatment. PW - 6 Vipin Sharma investigating officer gave the following statement in cross-examination, which reads as under:- Þesjh rQ~rhl esa ;g Hkh vk;k Fkk fd fnukad 18-09-2007 dks gjhjke dh yM+dh dh lxkbZ ds lEca/k esa fo|knsoh iRuh nkSyrjke] js[kk iRuh fouksn izkRk% vkB cts ,syukckn pyh xbZ FkhA ;g lgh gS fd ?kVuk ds oDr nkSyrjke viuh nqdku ij Fkk vkSj ?kVuk dh lwpuk mls eksguyky 'kekZ }kjk nh xbZ FkhA esjh rQ~rhl esa ;g Hkh rF; vk;k Fkk fd ;g lwpuk feyrs gh nkSyrjke csgks'k gks x;kA esjh rQ~rh'k esa ;g rF; vk;k Fkk fd ?kVuk dh lwpuk feyus ij t;izdk'k o ckyeqdqan QkSju ik;y dks ?kk;ykoLFkk esa lh0,p0lh0 QSQkuk ys x,A ik;y dks ?kk;ykoLFkk esa xEHkhj crkrs gq, MkWDVj us jSQj dj fn;k FkkA eSaus bl ekeys esa lquhy dqekj mQZ gkFkh iq= jke dqekj tkfr fejklh fuoklh QSQkuk ds fnukad 26-09-2007 dks c;ku ntZ fd, Fks] ftlesa xokg us ;g cryk;k fd vkSjr dh fpYykus dh vkokt lqudj lquhydqekj] lksgu 'kekZ nkSyrjke ds edku ij x, vkSj mlh le; ghjkyky o Ñ".k dqekj Hkh vk x, Fks] Hktuyky ds ?kj esa ls Ñ".k dqekj dks nkSyrjke ds edku esa Hkstk x;k vkSj edku [kqyok;k x;k rc mDr vkneh ?kj esa ?kqls tgka ik;y tyh gqbZ Fkh ftldh vkx cq>kbZ xbZ] ml le; ik;y dg jgh Fkh [kqn ty xbZ eq>s cpkvks] t;izdk'k o ckyeqdqan o fouksn dks Hkh ml le; cqyk;k x;k Fkk tks ik;y dks ?kk;ykoLFkk esa jktsUæ dh dkj esa ysdj bykt ds fy, jokuk gq,AÞ Þ;g lgh gS fd eSau bl ?kVuk ds laca/k esa MkW0 vt;dqekj jktdh; fpfdRlky; QSQkuk ls rQ~rhl dh o vkmVMksj ejht jftLV~j dh udy izkIr dh] ftlls ;g Li"V gqvk fd ckyeqdqan o t;izdk'k ik;y dks bykt ds fy, jktdh; fpfdRlky; QSQkuk yk, o mls vkxs jSQj dj fn;k x;kA xokg jktsUnz izlkn us Ñ".k dqekj] gkFkh] lksgu dks nkSyrjke ds ?kj [kM+s ns[kk Fkk rFkk fQj t;izdk'k o ckyeqdqan jktsUnz Hkknwa dh dkj ls ik;y dks bykt gsrq ys x,A xokgku euhjke] jktdqekj] gjhjke o ckcwyky pkjksa us vius c;kuksa esa ;g crk;k Fkk fd t;izdk'k o mlds llqj ujsUnz dqekj ds chp crZuksa ds O;kikj ls lEcaf/kr fookn Fkk ftldk mUgksaus cSBdj fglkc djok;k Fkk tks fglkc fd;k Fkk mldh iphZ eq>s nh Fkh] tks 'kkfey i=koyh dh FkhA bu xokgku us vius c;kuksa esa crk;k Fkk fd t;izdk'k dk :i;k ujsUnz dh rjQ cdk;k Fks tks vkfFkZd raxh dh otg ls ujsUnz ns ugha ik;kA bu xokgku ds c;kuksa esa ;g Hkh vk;k Fkk fd ik;y ds [kqn ds 10 gtkj :i;s Hkh ujsUnz ysdj vk;k Fkk vkSj ujsUnz vkfFkZd raxh dh otg ls ;g jkf'k vnk ugha dj ik;kA vly fglkc dk ipkZ tks eq>s jktdqekj iq= nkuey us fn;k og izn'kZ Mh&2 gS ftl ij , ls ch esjs gLrk{kj bls 'kkfey i=koyh djus gsrq fd, gq, gSaAÞ 35. Upon consideration of the entire evidence, we are of the opinion that finding of the learned trial court so as to hold accused appellant Daulat Ram guilty for offence under Section 304B IPC is totally perverse for the simple reason that allegations were leveled by PW - 1 Narendra Kumar against all seven persons but after investigation, charge-sheet was filed only against three persons and later on during trial, cognizance was taken against remaining persons but ultimately they were acquitted from the charges leveled against them. 36. Upon consideration of the statement of PW - 1 Narendra Kumar along with the statement of PW - 6 Vipin Sharma, investigating officer and defence witness DW-3 Sunil Kumar @ Hathi and DW-5 A. C. Nemiwal, we are of the opinion that investigation has not been properly conduct so as to ascertain the truth, but fact remains that prosecution has failed to establish the fact that day before the occurrence any beating was given to the deceased for demand of dowry by the accused Daulat Ram and other accused persons, therefore, the conviction of accused appellant Daulat Ram, father-in law for offence under Section 304B IPC is not sustainable in law, but finding of the learned trial court for commission of offence under Section 498A IPC does not require any interference. 37. Admittedly, the marriage of Jai Prakash was solemnized with deceased Payal on 17.5.2006 and she died in suspicion circumstances on 18.9.2007, therefore, presumption is required to be drawn against the husband Jai Prakash as per Section 304B IPC. We have considered the prayer of the learned counsel for the appellants in the light of evidence on record and the judgments of the Hon'ble Supreme Court in the case of Jwala Prasad v. State of Chhattisgarh, State of Karnataka v. Dattaraj & Ors so also, in case of Onkar v. State of Punjab (supra) and find that no error has been committed by the learned trial court to acquit Balmukund, Vinod Kumar (elder brothers of the accused appellant Jai Prakash), Smt. Sumitra and Rekha wives of Balmukund and Vinod Kumar from the charge leveled against them for offence under Section 304B and 498A IPC because prosecution has failed to prove its case against these accused persons, therefore, there is no force in the appeal filed by the complainant Narendra Kumar against their acquittal. 38. 38. With regard to conviction of Daulat Ram for offence under Section 304B IPC, we are of the opinion that the fact of demand of dowry has not been proved by the prosecution against him because all the independent witnesses of prosecution, who were arrayed in the list of witnesses filed along with the charge-sheet was not produced before the court and out of 43 witnesses, only six witnesses were produced including witness of evidence and doctor. It is also worth wile to observe that in defence the statements of neighbours were recorded. They categorically stated before the court that at the time of incident, all the accused appellants Jai Prakash (husband), Dalat Ram (father-in law) and Smt. Vidhya Devi (mother-in-law) were not present in the house when burning of deceased Payal took place on 18.9.2007. The PW - 6 Vipin Sharma, Investigating Officer also categorically stated before the court that in his investigation, it is proved that accused appellants Jai Prakash (husband), Dalat Ram (father-in law) and Smt. Vidhya Devi (mother-in-law) were not present in the house. Therefore, the conviction of Daulat Ram for offence under Section 304B IPC is not sustainable in law, therefore, deserves to be quashed. 39. With regard to finding of the learned trial court for offence under Section 304B and 498A IPC against Jai Prakash, husband of the deceased, we are of the opinion that presumption is required to be drawn against him because husband is custodian of his wife and in this case, no information was given by him to the police soon after the incident when he took her to the hospital, therefore, the conviction of accused appellant Jai Prakash for offence under Section 304B IPC and 498A IPC is hereby maintained, however, in the totality of the circumstances, the sentence passed against the accused appellant Jai Prakash is required therefore be reduced. 40. On the basis of above discussion, the D.B. Cr. 40. On the basis of above discussion, the D.B. Cr. Appeal No.70/2011 is partly allowed and; (i) The conviction of accused appellant Jai Prakash for offence under Section 304B and 498A IPC is hereby maintained, but sentence of life imprisonment is hereby reduced to 10 years RI along with fine of Rs.10,000/- and in default of payment of fine to further undergo six month RI; (ii) The conviction of accused appellant Daulat Ram for offence under Section 304B IPC is hereby set aside, but conviction for offence under Section 498A IPC is hereby maintained. Upon considering the fact that he is more than 80 years of age and he is on bail, therefore, his sentence is hereby reduced to already undergone while maintaining the order of fine; (iii) The conviction of the accused appellant Smt. Vidhya Devi for offence under Section 498A IPC is hereby maintained, however, the sentence of three years passed against her is hereby reduced to already undergone while maintaining the order of fine. (iv) The accused appellants Daulat Ram and Smt. Vidya Devi are on bail, therefore, their bail bonds are hereby discharged. The D.B. Cr. Appeal No.237/2011 filed by the complainant lacks merit, therefore, dismissed.