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2018 DIGILAW 1707 (RAJ)

Sanjay @ Sanjeev Kumar v. State of Rajasthan

2018-08-10

PANKAJ BHANDARI

body2018
JUDGMENT Pankaj Bhandari, J. - Accused-appellant has preferred this appeal aggrieved by judgment and order dated 19.08.2015, passed by Additional Sessions Judge No.2, Jhunjhunu, whereby, accused-appellant has been convicted for offence under Section 498-A and 304-B IPC and has been sentenced to undergo one year rigorous imprisonment for offence under Section 498-A IPC and ten years rigorous imprisonment for the offence under Section 304-B IPC. The Court has further imposed fine of Rs.500/-, on non payment of which appellant is to further undergo one month imprisonment and fine of Rs.5,000/- for the offence under Section 304-B, on non payment of which, appellant is to undergo six months imprisonment. 2. Complainant, father of the deceased has preferred Appeal No.1141/2015 for enhancement of sentence. 3. The factual matrix of the case are that a written F.I.R. Ex.P- 15 was lodged by Murlidhar, father of the deceased on 11.03.2013, to the effect that marriage of his daughter (hereinafter to be referred as 'victim') took place with the appellant on 16.02.2009, there was demand of dowry, demand of Rs.1,00,000/- was made on 03.03.2013, and the victim told him that her life is in danger. It was alleged in the F.I.R. that father-in- law, mother-in-law, husband and brother-in-law of the deceased have killed her daughter. 4. Police on receipt of the report, investigated the matter and after due investigation, submitted charge-sheet only against the present accused-appellant. Court after hearing the charge- arguments framed charges for offence under Section 498-A and 304-B IPC and in the alternative under section 302 IPC. Accused- appellant denied the charges and sought trial, upon which as many as sixteen witnesses were examined on behalf of the prosecution and forty four documents were exhibited. Explanation of the appellant was recorded under Section 313 Cr.P.C. In defence, appellant got himself examined as DW-1 and also produced three other witnesses as Ex.D-2 to Ex.D-4. Documents, Ex.D-1 to Ex.D-50 were exhibited in defence. 5. The Court after hearing final arguments has convicted the accused appellant for the offence under Section 498-A and 304-B IPC and sentenced him as mentioned herein above aggrieved by which accused-appellant has preferred appeal No.796/2015, aggrieved by imposition of less sentence, appeal has been preferred by the complainant with a prayer that accused be sentenced for life imprisonment. 6. It is contended by counsel for the accused that marriage of accused with the deceased took place in February, 2009. 6. It is contended by counsel for the accused that marriage of accused with the deceased took place in February, 2009. Deceased was maintaining a diary. In the entire diary, she has not levelled any allegation with regard to demand of dowry. The allegation that dowry was demanded on 03.03.2013, has not been established. It is also contended that noting in the diary Ex.P-8 dated 10.03.2013 and suicide note Ex.P-9 dated 10.03.2013 are not in the hand writing of the deceased and prosecution has failed to establish that the documents are in the handwriting of the victim. 7. It is contended that the deceased was a School Lecturer who at the time of her demise was having around Rs.76,000/- in her savings account of SBBJ Bank and Rs.1,29,000/- in her savings account of Bank of Baroda which has been exhibited as Ex.D-5 and Ex.D-35 respectively. It is also contended that she was also having an FD of Rs.50,000/- which was maturing on 02.07.2013. 8. It is further contended that accused-appellant was made nominee in her FD and in her bank accounts and in the two insurance policies Ex.D-37 and Ex.D-38. 9. My attention has also been drawn towards Ex.D-6 which is a letter of State Insurance, from which it is revealed that the victim had made her father, her husband and her son as nominee for receiving 30%, 30% and 40% of the amount, respectively. 10. It is argued that documents Ex.P-8 and Ex.P-9 are not in the hand writing of victim. It is contended that the burden to prove that document was in hand writing of the victim was on the prosecution, but prosecution has utterly failed to produce any evidence to establish that Ex.P-8 and Ex.P-9 were written by the victim. From perusal of these document, it is revealed that she had made a declaration that her father would be nominee for her SBBJ, BOB Accounts and insurance policies etc. It is contended that the victim was having a son and a daughter and if she was not happy with her husband, she would not have nominated him alongwith her children to receive the amount. It is contended that the victim was having a son and a daughter and if she was not happy with her husband, she would not have nominated him alongwith her children to receive the amount. It is also contended that since the victim was having more than Rs.2,00,000/- in her account, there was no question of making any demand of dowry from the complainant and a concocted story has been made up to involve the accused-appellant in the crime. 11. It is also contended that this Court can also compare the hand writing with the admitted documents, as per Section 73 of the Evidence Act. It is also contended that there is a delay of one day in lodging of F.I.R. Recovery memo has also been prepared after one day. 12. Counsel for the complainant has vehemently opposed the appeal. His contention is that Court below has considered all aspects of the matter and has not committed any error in convicting the accused-appellant. It is also contended that PW-4 complainant-Surendra has stated that Rs.1,00,000/- was demanded on 03.03.2013, he arranged Rs.70,000/- from his own means and took a loan of Rs.30,000/- from Ashok. Statement of Ashok has been recorded as PW-6. It is contended that PW-5 Pradeep, brother of the deceased, PW-16 Pinki mother of the deceased have stated that there was demand of Rs.1,00,00/- i.e. soon before death of the deceased, hence Section 498-A and Section 304-B are made out. With regard to demand of Rs.10,00,000/- on 08.03.2013, it is contended that the witness PW-4 has specifically stated that when the accused-appellant came to his in-laws house, he demanded Rs.10,00,000/-. It is contended that since there was demand soon before death of the deceased, the burden shifted on the accused-appellant. 13. I have considered the contentions. 14. Initial burden lies on the prosecution to establish that there was demand of dowry soon before death of the deceased. Prosecution has placed reliance on the suicide note and the statement of father, mother, brother and uncle of the deceased. The suicide note is written in the diary maintained by the deceased which has been exhibited as Ex.P-8. This diary is of the year, 2009 and there are entries made from December, 2008 till May, 2011, thereafter, the entry is dated 10.03.2013, the date of death of deceased. There are no entries in between 28.05.2011 to 10.03.2013. The suicide note is written in the diary maintained by the deceased which has been exhibited as Ex.P-8. This diary is of the year, 2009 and there are entries made from December, 2008 till May, 2011, thereafter, the entry is dated 10.03.2013, the date of death of deceased. There are no entries in between 28.05.2011 to 10.03.2013. In the noting made on 10.03.2013, it is mentioned that accused-appellant Sanjay want to purchase the property in his name, her in-laws are only interested in money and that her husband has no concern with her. In the entire diary Ex.P-8 except noting dated 10.03.2013, there is no noting where there is any allegation with regard to harassment on account of demand of dowry. Yet another letter which is alleged to be suicide note was not recovered from the spot but was actually recovered on 11.03.2013, vide recovery memo Ex.P-7. Suicide note has been exhibited as Ex.P-9. Ex.P-9 is written in an old diary of the year, 2009. It is a letter alleged to be written by the victim. In this letter, it is mentioned that her in-laws are greedy. It is also mentioned in this letter that she wishes that her entire amount which is in the National Pension Scheme, Life Insurance and Bank Accounts be given to her father. This document is also alleged to be in the hand writing of the deceased. 15. The diary except for the noting dated 10.03.2013, is admitted to be in the hand writing of the deceased by the complainant as well as the accused-appellant. The only dispute pertains to the noting in the diary dated 10.03.2013 and letter dated 10.03.2013, prosecution has utterly failed in not producing the hand writing expert to establish that the disputed letter and suicide note is in the hand writing of the deceased. Since the Court below has placed reliance on the said document, this Court deems it proper to exercise the powers under Section 73 of the Evidence Act to compare the disputed letter and suicide note with the admitted hand writing of the deceased. 16. I have carefully perused the two documents i.e. letter dated 10.03.2013 and noting in diary dated 10.03.2013 as well as the admitted hand writing in the diary. 16. I have carefully perused the two documents i.e. letter dated 10.03.2013 and noting in diary dated 10.03.2013 as well as the admitted hand writing in the diary. Ex.D-49 and Ex.D-50 are the staff attendance register which bears the signatures of the victim, these signatures do not tally with the signatures made on Ex.P-8 and Ex.P-9. 17. There is mark difference in the letter and the earlier noting made by the deceased. Generally in all notings, she has mentioned time with seconds and in the long noting, she has only mentioned the date at the top. In none of the notings, there is date at the bottom of the noting whereas in the two documents that are alleged to be recovered, there is date on the top as well as at the bottom. There is mark difference in the handwriting in Ex.P-8 and Ex.P-9 and the same is definitely not similar with admitted documents and consequently, I do not find them to be in the hand writing of the victim These documents loses their significance as no recovery memo was prepared at the place from where they are stated to have been recovered. The same, therefore, appears to be planted afterwards in connivance with the police. Further in these two notings, there is no allegation with regard to demand of Rs.1,00,000/- a week prior to the noting and demand of Rs.10,00,000/- two days prior to the noting. Deceased was a School Lecturer, hence, if there would have been any demand, she would have surely mentioned the same in the noting. 18. Reverting back to the statement of the material witnesses, there are two sets of allegation, first relating to demand of Rs.1,00,000/- on 03.03.2013 and the other pertains to demand of Rs.10,00,000/- on 08.03.2013. In statement recorded under Section 161 Cr.P.C. Murlidhar, father of the deceased, stated that Rs.10,00,000/- was demanded by father of the accused-appellant, whereas, in the Court statement he has mentioned that the amount was demanded by the accused-appellant. This material improvement has been made by Murlidhar-complainant to implicate the accused-appellant. With regard to payment of Rs.1,00,000/- on 03.03.2013, he has admitted that he is not having any documents or bank statement to show that the amount was withdrawn by him to fulfill the demand of accused- appellant. This material improvement has been made by Murlidhar-complainant to implicate the accused-appellant. With regard to payment of Rs.1,00,000/- on 03.03.2013, he has admitted that he is not having any documents or bank statement to show that the amount was withdrawn by him to fulfill the demand of accused- appellant. Statement of PW-14 that his daughter told him to pay the money otherwise she would be harassed, cannot be believed as her daughter was serving in the Government and from the record which has been produced in defence, it is evident that she was having more than Rs.2,00,000/- in her account at the time of her demise. If the victim was having so much amount in her account, there cannot be any question of appellant asking for money from his father-in-law. From the documents produced by the defence, it is clear that the victim was helping her family members, Ex.D-46 is the receipt produced by the accused- appellant, wherein, Rs.13,200/- was deposited in cash in the account of Anju-sister of victim on 12.09.2012. 19. It is further pertinent to note that the incident has taken place after four years of marriage, couples were blessed with two children. Victim as well as accused-appellant were serving in the Government, there was no reason why appellant would demand dowry. Demand of dowry soon before death of deceased is thus not established beyond reasonable doubts. Noting dated 10.03.2013 in Ex.P-8 and latter dated 10.03.2013 Ex.P-9 further cast doubt as the victim had earlier made her husband the nominee in all her bank accounts and insurance policies. In the Government record also she had made her father and husband nominee for 30% share each and her son through her husband for 40% of the share. There appears to be no reason why she would deprive her son and daughter from her property. 20. There being no entry in the diary with regard to any demand, the allegation of demand of dowry soon before death is not established. In view of the same, appeal preferred by the accused- appellant deserves to be and is accordingly allowed. 21. The criminal appeal No.796/2015 is, accordingly, allowed. Accused-appellant Sanjay @ Sanjeev Kumar is acquitted from charges under Section 304-B and 498-A IPC. Judgment and order dated 19.08.2015, passed by the Court below is quashed and set aside and accused-appellant is acquitted. 22. 21. The criminal appeal No.796/2015 is, accordingly, allowed. Accused-appellant Sanjay @ Sanjeev Kumar is acquitted from charges under Section 304-B and 498-A IPC. Judgment and order dated 19.08.2015, passed by the Court below is quashed and set aside and accused-appellant is acquitted. 22. As far as appeal of complainant is concerned, complainant has prayed for enhancement of sentence, since Court has acquitted the accused-appellant, there is no question of enhancement of sentence. Accordingly, appeal preferred by the complainant is dismissed. 23. Appellant Sanjay @ Sanjeev is directed to forthwith furnishes personal bond in the sum of Rs.20,000/- and a surety bond in the like amount each in accordance with Section 437 A of Cr.P.C. before the Deputy Registrar (Judicial) to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellant on receipt of notice thereof, shall appear before the Hon'ble Apex Court. The bail bonds will be effective for a period of six months. 24. A copy of this order be placed in connected file.