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2018 DIGILAW 146 (RAJ)

STATE OF RAJASTHAN v. VINOD KUMAR @ VIKKI BAIRWA

2018-01-10

GOVERDHAN BARDHAR, MOHAMMAD RAFIQ

body2018
JUDGMENT : GOVERDHAN BARDHAR, J. 1. The instant criminal leave to appeal has been filed by the State of Rajasthan against the impugned judgment dated 05.08.2013 passed by the learned Addl. Sessions Judge, Bandikui, District Dausa in Sessions Case No. 37 of 2012, whereby respondent has been acquitted of the charge framed against him under Sections 302, 304B, 498A and 201 IPC. 2. The factual matrix of the case is that complainant Ramdayal Bairwa (PW2) submitted a written report (Ex.P2) to the SHO, Police Station, Kolwa to this effect that marriage of Mamta was solemnized with Vikki (Vinod) in Gram Panchayat Kiratpura, Likhaliya Ki Dhani. Due to non-fulfilling the demand of dowry, her 'jethani' Gulab and Vinod used to torture her. Many at times Mamta used to come at 'Peehar' with complaint against above persons but being counselled she used to return at her in-laws place. Vikki (Vinod) after consuming liquor used to give beating to Mamta. In night Vikki (Vinod) gave beating saying that your father gave no dowry and on the same night committed murder of her. At 7:30 AM the villagers informed about death of Mamta. 3. On this, a case bearing No. 51/2012 for the offence under Section 304B IPC was registered at Police Station Kolwa. After investigation, the police submitted charge-sheet against the accused respondent under sections 304B, 498A and 201 IPC in the concerned court. The matter being triable by the Court of Session, the Court of concerned Magistrate sent the matter for trial to the learned Addl. Sessions Judge, Bandikui, District Dausa ('the learned trial court' for short). 4. Learned trial court after hearing the arguments of both the parties, framed the charges against the accused respondent for the offences under Sections 302, 304B, 498A and 201 IPC and explained him, who denied for the same and claimed for trial. 5. To substantiate the charges, prosecution examined as many as 15 witnesses and exhibited 17 documents. After completion of prosecution evidence, statement of accused respondent under Section 313 Cr.P.C., 1973 was recorded. In defence, the accused respondent did produce any evidence and got exhibited four documents. 6. Learned trial court after hearing the final arguments of both the parties, acquitted the accused respondent for the charges levelled against him vide impugned judgment dated 05.08.2013. 7. Mrs. After completion of prosecution evidence, statement of accused respondent under Section 313 Cr.P.C., 1973 was recorded. In defence, the accused respondent did produce any evidence and got exhibited four documents. 6. Learned trial court after hearing the final arguments of both the parties, acquitted the accused respondent for the charges levelled against him vide impugned judgment dated 05.08.2013. 7. Mrs. Sonia Shandilya, learned Public Prosecutor has argued that the learned court below erred in believing on the statements of prosecution witnesses and documents submitted from the prosecution side by which the offences against the accused respondent are well proved and erred in acquitting the accused respondent from the charges levelled against him which is wrong and illegal. The learned trial court has also erred in believing on this fact that the in-laws of the deceased Mamta tortured her for the dowry and they gave her mental and physical torture for this. This cruelty was started from the day of her marriage and continued till her death. This is also proved from the statements of the prosecution witnesses. Learned PP further submitted that from the Post-mortem Report and FSL Report, it is clear that the death of deceased Mamta was by hanging and suffocation and her death was occurred under abnormal and unnatural circumstances. From this, it is also clear that deceased Mamta was died under abnormal circumstances and her death was natural. This is also an undisputed fact that her death was occurred within seven years of her marriage. So the acquittal of the accused respondent is wrong and illegal. Learned PP further submitted that from the facts and circumstances of the case and from the oral, documentary and medical evidence, the offence against the accused respondent was proved but the learned trial court acquitted him from the charges levelled against him. Thus, the impugned judgment of acquittal passed by the learned trial court be quashed and set aside and the accused respondent be convicted for the charge he has been acquitted. 8. Heard learned the learned Public Prosecutor and perused the impugned judgment and statements of prosecution witnesses and different exhibits, we find that some of witnesses of the prosecution namely; PW-6, Bhonri Lal, PW7- Ram Sahay, PW10-Prem Singh and PW12-Mukesh have supported the case of the prosecution and have been declared hostile. 9. 8. Heard learned the learned Public Prosecutor and perused the impugned judgment and statements of prosecution witnesses and different exhibits, we find that some of witnesses of the prosecution namely; PW-6, Bhonri Lal, PW7- Ram Sahay, PW10-Prem Singh and PW12-Mukesh have supported the case of the prosecution and have been declared hostile. 9. So far as charge against the accused respondent for offence under section 302 IPC is concerned, from the statements of Babu Lal (PW1), Ram Dayal (PW2), Kanhaiya Lal (PW4), Krishan Kumar (PW5), Ganga Sahay (PW8), Smt. Kamla Devi (PW9), Dr. Ram Niwas Meena (PW11), Tej Ram (PW13), Kishan Lal (PW14) and Suresh Parmar, I.O (PW15) it is proved that accused committed the murder of Mamta. Dr. Ram Niwas Meena (PW11) in his statement has clearly deposed that ligature marks of hanging on the neck of deceased were found and except this there are no signs on the other part of the body of the deceased nor there are signs of scuffle. In the FSL report no insecticide or poisonous substance was found. Thus the cause of death of deceased Mamta is proved to be by hanging or suffocation, which does come under the definition of homicidal death. 10. With regard to testimony of related witnesses Hon'ble the Apex Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 Supreme Court Cases 116 has held as under:- "48. Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the background of which the oral statements are to be considered. All persons to whom the oral statements are said to have been made by Manju when she visited Beed for the last time, are close relatives and friends of the deceased. In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may have been stated to them at all. Not that is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the court has to examine such evidence with very great care and caution. Not that is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may or could have been stated may be imagined to have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it. 11. So far as charge against the accused respondent for offence under sections 304B and 498A IPC is concerned, from the statement of PW1-Babu Lal it is clear that this witness in his cross-examination has narrated any date about demand of dowry. This witness further deposed that he cannot say anything that on which date the deceased made demand of dowry while she was in her Peehar and subjected to cruelty. This witness in police statement (Ex.D1) deposed altogether different facts as recorded before the Court. 12. Ram Dayal (PW2) is complainant in the case. This witness in his cross-examination has deposed that Mamta did tell anything to him about demand of dowry nor he saw anyone demanding the dowry. This witness further deposed that he did write report (Ex.P2) and same was got written by some other person. No description about time and date for demanding of dowry has been mentioned in this document (Ex.P2). Harsahay Meena (PW3) is witness of site plan. This witness in his statement deposed that what the police recorded in the site plan, he is aware. Kanhaiya Lal (PW4) in cross-examination deposed that in police statement (Ex.D2) there are no facts about dowry. PW5-Krishan Kumar in statement recorded before the Court and the statement recorded before the police (Ex.D3) has deposed anything about date and time of making demand of dowry. PW8-Ganga Sahay in his cross-examination deposed that he narrated the contents mentioned in the examination-in-chief but why the police did record, he does know anything. Thus this witness also does confirm the substantial facts made in police statement (Ex.D4). Smt. Kamla Devi (PW9) is mother of the deceased. PW8-Ganga Sahay in his cross-examination deposed that he narrated the contents mentioned in the examination-in-chief but why the police did record, he does know anything. Thus this witness also does confirm the substantial facts made in police statement (Ex.D4). Smt. Kamla Devi (PW9) is mother of the deceased. This witness in her cross-examination deposed that her statement was recorded before the police. This witness has further deposed that she cannot say at what time accused gave beating to her daughter and at what time complaint was made to her. This witness further deposed that she did tell to the police that Vinod used to give beating after consuming liquor. This witness who is star witness of the prosecution has made great contradictions in her testimony. Dr. Ram Niwas Meena (PW11) who conducted autopsy of dead body of the deceased has deposed that as per post mortem report, the deceased died due to hanging and suffocation. The viscera of the dead body was sent to FSL for chemical examination which is Ex.P17. In the FSL report (Ex.P17) the quantity of metallic poison, ethial and mithial alcohol, sayaned alocohol or any poisonous and insecticide substance was found as negative from which it is clear that deceased died due to hanging and suffocation. Tej Ram (PW13) who is father of the deceased has deposed in his cross-examination that he cannot tell anything about the date and year that on which date his daughter went to her Peehar and when she was given beating. This witness has made great contradictions in his testimony. Kishan Lal (PW14) in his cross-examination deposed that the police never recorded his statement. This witness further deposed that on which date, year and when Mamta (deceased) met to him, he cannot say anything. Tej Ram (PW13) father of deceased Mamta in his cross-examination admits that Vinod did not make any demand of motorcycle or dowry from him. Smt. Kamla Devi (PW9) mother of the deceased in her cross-examination denies her statement recorded by the police and further stated that Mamta studied in Delhi and she did not want to live in Village. Due to living Mamta in village she remained perturbed and in state of depression. Smt. Kamla Devi (PW9) mother of the deceased in her cross-examination denies her statement recorded by the police and further stated that Mamta studied in Delhi and she did not want to live in Village. Due to living Mamta in village she remained perturbed and in state of depression. The fundamental and vital question that the Court has to ask itself and find a solid answer to, is whether this evidence even preponderantly proves that the respondent had treated the deceased with cruelty connected with dowry demands. 13. The evidence of father and mother of the deceased cannot be treated as unimpeachable and uncontroversial evidence for the purpose of presumption under section 113-B of the Indian Evidence Act and looking to the inconsistencies and contradictions in the statements of prosecution witnesses we are of the opinion that the prosecution has not shown/presented and or proved even by preponderance of probabilities that the deceased has been treated with cruelty emanating from or founded on dowry demands. 14. So far as charge against accused respondent for the offence under section 201 IPC is concerned, the same is not proved because the prosecution has failed to prove charges against the accused respondent for the offence under sections 302, 304B, 498A IPC. 15. In the aforesaid scenario, we are of the considered view that prosecution has not succeeded in establishing its case beyond contours of reasonable doubt, so we do not find any reason to disturb the findings of the trial court. Therefore, the criminal leave to appeal filed by the State against acquittal is devoid of any merit, hence the same is dismissed.