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2016 DIGILAW 55 (RAJ)

State of Rajasthan v. Pratap Singh

2016-01-08

GOPAL KRISHAN VYAS, P.K.LOHRA

body2016
JUDGMENT Gopal Krishan Vyas, J. In this Cr. leave to appeal filed by the State of Rajasthan under Section 378(iii) and (i) of the Cr.P.C. the State of Rajasthan is challenging the validity of the judgment dated 1.5.2015 passed by the learned Addl. Sessions Judge, Salumber in Sessions Case No. 65/2012 by which the learned trial court acquitted the respondent Pratap Singh from the charges levelled against him under Section 498A, 304 B, 302 IPC. 2. As per brief facts of the case, the complainant PW - 1 Onad Singh father of the deceased Bhuri Kanwar filed a written complaint (Ex.P/1) on 3.9.2011 in the court of ACJM, Salumber under Section 156(3) Cr.P.C. in which it was alleged the marriage of his daughter Bhuri Kanwar was solemnized on 15.2.2009 with respondent Pratap Singh and at the time of marriage, the gold and silver ornaments were given along with other domestic articles in the marriage, but after marriage her husband Partap Singh, father-in-law Man Singh and mother-in-law Sanju Bai started quarrelling with her and they were torturing Bhuri Kanwar for demand of dowry. In the FIR, it is stated that before one month from the date of incident Pratap Singh raised demand of Rs. 50,000/- to open diary and for that purpose, he sent out his daughter from the home, therefore, the daughter of the complainant Smt. Bhuri Kanwar came to the house of complainant, thereafter, before two days of festival Rakhi respondent Pratap Singh came and felt sorry that in future he will not make quarrel with Bhuri Kanwar nor he will give any beatings to her, therefore, as per complainant, he sent her daughter back to her in-laws house. 3. In the complaint it is further submitted that on 23.8.2011 he made a call to Bhuri Kanwar on Mobile no. 9784779438 and from opposite side Bhuri Kanwar was weeping and asked him that take her from my house because my husband and all other family members are continuously beating her, thereafter, the phone was disconnected. As per the allegation in the complaint on 23.8.2012 at about 12'O Clock in the morning Pratap Singh, Man Singh and Sanu Bai gave her poison forcibly and in the evening she was admitted to the Vinayak Hospital, Salumber from where after initial treatment she was referred to Udaipur on 24.8.2011 but in between the way she died. As per the allegation in the complaint on 23.8.2012 at about 12'O Clock in the morning Pratap Singh, Man Singh and Sanu Bai gave her poison forcibly and in the evening she was admitted to the Vinayak Hospital, Salumber from where after initial treatment she was referred to Udaipur on 24.8.2011 but in between the way she died. In the meantime, the relatives of complainant informed on telephone that your daughter has been killed by the in-laws and husband and she is in critical condition. On receiving such information, the complainant went to the Udaipur in Choudhary Hospital where the doctor declared that she is died. The allegation in the FIR is that marriage of his daughter was solemnized in the year 2009 and just after two years, she died in her in-laws house, therefore, it is an offence under Section 304B, 302 and 498A IP 498A IPC. 4. Upon aforesaid complaint filed before the Magistrate, the FIR no. 296/2011 was registered at Police Station Salumber for the offences under Sections 498A and 304 B IPC and after investigation the challan was filed by the investigating officer in the court of ACJM, Salumber against Pratap Singh. 5. The ACJM, Salumber committed the case for trial to the court of Sessions Judge, Udaipur from where the case was transferred for trial in the court of Addl. Sessions Judge, Salumber, District Udaipur. 6. The learned trial court after framing the charge under Section 498A, 304B and 302 IPC granted an opportunity to the prosecution to lead evidence to prove the allegation levelled in the FIR. 7. In the trial, statement of PW-1 Onar Singh, PW-2 Dr. Mitul Modi, PW - 3 Kishore Singh, PW - 4 Manohar Singh, PW - 5 Smt. Bhanwari Bai, PW-6 Lali Bai, PW - 7 Sanju Bai, PW - 8 Madhu Singh S/o Onad Singh, PW - 9 Madhu Singh S/o Amar Singh, PW - 10 Kuber Singh, PW - 11 Rajesh Kumar, PW - 12 Mohan Singh and PW - 13 Chiranji Lal were recorded and 13 documents were exhibited from prosecution side. After recording statement of prosecution witnesses the statement under Section 313 Cr.P.C. was recorded and no evidence in defence was produced by the respondent. 8. After recording statement of prosecution witnesses the statement under Section 313 Cr.P.C. was recorded and no evidence in defence was produced by the respondent. 8. The learned trial court after hearing arguments of both the sides finally acquitted the respondent Pratap Singh vide judgment dated 1.5.2015 while holding that prosecution has failed to prove the case for demand of dowry and unnatural death, therefore, acquitted the respondent. 9. Learned Public Prosecutor vehemently submits that grave error has been committed by the learned trial court in acquitting the respondent from the charge levelled against him under Section 304 B and 498A IPC because marriage of respondent and Bhuri Kanwar was solemnized on 15.2.2009 and she died on 23.8.2011, therefore, the finding given by the learned trial court deserves to be quashed and set aside and respondent may be convicted for the alleged offence. 10. Learned Public Prosecutor further submits that by leading trustworthy evidence of PW - 1 Onar Singh and PW - 5 Smt. Bhanwari Bai father and other of the deceased and other evidence, the prosecution proved its case beyond reasonable doubt with regard to demand of Rs. 50,000/- but the learned trial court discredited their evidence only on the basis of surmises and conjectures. Therefore, the finding given by the learned trial court deserves to be quashed and set aside. 11. Learned Public Prosecutor submits that it is a case in which without any post mortem the body was cremated in spite of the fact that complainant repeatedly asked the in-laws for post mortem, therefore, it is a case in which respondent is guilty for committing offence under Section 304 B and 498A IPC because presumption is to be drawn against the respondent because deceased died within two years from marriage, therefore, it is a fit case for grant of leave to appeal against the judgment. 12. Per contra, learned counsel appearing for the respondent submits that the story is totally fabricated story because at the time of treatment at Udaipur and after the death when body of the deceased reached in the village Dal in the in-laws house, the complainant PW - 1 Onar Singh father of the deceased Bhuri Kanwar was present, but did not raise any objection or suspicion with regard to her death. The death occurred on 23.8.2011 but no complaint was filed by him to the police, but after 10 days a complaint was filed under Section 156(3) Cr.P.C. in the court of ACJM, Salumber for registration of the FIR under the thumb impression of Onar Singh and there is no explanation on record why FIR was not filed soon after the occurrence when PW - 1 Onar Singh was present not only at the time of cremation but during treatment at Udaipur, therefore the learned trial court after considering all the material evidence held that prosecution has failed to prove its case beyond reasonable doubt. With regard to demand of Rs. 50,000/- it is submitted that the prosecution story is totally false because neither such allegation was made before the police soon after the death nor the said fact was disclosed by him or his wife to any other family members, therefore, the allegation of demand of dowry before one month from the date of incident is totally unfounded. The learned trial court after discussing the statement of PW - 1 Onar Singh and PW - 5 Smt. Bhanwar Bai gave finding that no presumption can be drawn to convict the respondent under Section 304 B IPC because as per Section 113 of the Evidence Act before proving the fact of demand of dowry under Section 498A IPC no such presumption can be drawn. Learned trial court has rightly acquitted the respondent from the charge levelled against him while following the judgment of the Hon'ble Supreme Court in the case of Gurdeep Singh v. State of Punjab reported in 2013 (2) Cr. SC 585. It is also argued that it is not a fit case for grant of leave to appeal because as per the statement of PW - 2 Dr. Mitul Modi the deceased was admitted in the hospital and she was suffering from vomiting and hyper tension in the hospital. No objection or complaint was made before the police by Bhuri Kanwar against her husband and therefore, due to seriousness PW - 1 Onar Singh himself took deceased at Udaipur and from Udaipur he took away to the village Dal and in between the way, the police station is situated but no complaint was made by him. No objection or complaint was made before the police by Bhuri Kanwar against her husband and therefore, due to seriousness PW - 1 Onar Singh himself took deceased at Udaipur and from Udaipur he took away to the village Dal and in between the way, the police station is situated but no complaint was made by him. Further it is submitted that the learned trial court gave finding that PW - 1 Onar Singh was present at the time of cremation. In view of the above, it is submitted that it is not fit case for granting leave to appeal. Hence, this leave to appeal filed by the State of Rajasthan may be dismissed because finding given by the learned trial court for acquittal based upon sound appreciation of evidence. 13. After hearing the learned counsel for the parties, we have examined the entire evidence for the purpose of considering the prayer for grant of leave. 14. As per the evidence on record, the marriage of late Bhuri Kanwar was solemnized with the respondent on 15.2.2009 and as per the allegation of PW - 1 Onar Singh there was demand of Rs. 50,000/- one month before the death, but complainant was filed after 10 days from the date of death which is 23.8.2011. 15. PW - 1 Onar Singh specifically stated in his complaint that on 23.8.2011 he made a call upon the mobile number of his daughter Bhuri Kanwar which is 9784779438, but in the evidence brought on record it is found that the said phone number belongs to one Ghyan Ji S/o Bhagat and there is no evidence on record how the said phone was lying with the deceased Bhuri Kanwar. Further, no investigation was made with regard to location of the said phone on 23.8.2011, the date on which the phone call was given by PW - 1 Onar Singh. 16. It is admitted position of the case that no FIR was filed by PW - 1 Onar Singh father of the deceased to the police either after the death of his daughter when he was present in the hospital nor he made any objection at the time of cremation and as per evidence on record, he was present when cremation took place. The learned trial court observed in the finding that prosecution has miserably failed to prove the demand of dowry which is punishable under Section 498A IPC, therefore, no presumption under Section 113B of Evidence Act can be drawn for offence under Section 304 B IPC. 17. In our opinion, in absence of any post mortem report or upon the fact that complaint was filed by the complainant PW - 1 Onar Singh after 10 days from the date of incident without raising any objection at the time of cremation and failed to establish the demand of dowry, therefore, no error has been committed by the learned trial court in acquitting the respondent from the charge levelled against him for alleged offence. 18. In view of the fact that finding given by the learned trial court for acquittal is based upon sound appreciation of evidence, therefore, no case is made out to grant leave to appeal. Hence, this Cr. leave to appeal is hereby dismissed.