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2018 DIGILAW 2267 (RAJ)

Vinod Kumar v. State of Rajasthan

2018-12-06

SANDEEP MEHTA, VINIT KUMAR MATHUR

body2018
JUDGMENT Sandeep Mehta, J. - The appellant herein stands convicted and sentenced by the judgment and order dated 11.11.2014 passed by learned Additional Sessions Judge No.2, Nohar, District Hanumangarh in Sessions Case No.03/2012 (07/2007) in the following terms :- Under Section 498-A IPC : Rigorous imprisonment of two and half years and a fine of Rs. 3000/- and in case of default in payment of fine, rigorous imprisonment of one month. Under Section 304-B IPC : Rigorous life imprisonment and a fine of Rs. 7000/-and in case of default in payment of fine, rigorous imprisonment of three months. 2. Being aggrieved of the above judgment, the appellant herein has preferred this appeal under section 374 (2) of the CrPC, 1973. 3. Facts in brief are that the complainant Satpal (P.W.5) lodged a written report (Ex.P/2) at the Police Station Bhirani, District Hanumangarh on 12.06.2007 alleging inter alia that his maternal niece Smt. Leela Devi, daughter of Shri Shankar Lal, married to the appellant herein about five and half years ago. Some time after her marriage, the girl started complaining that her husband, mother in law, father in law, brother in law (Jeth) and sister in law (Jethani) were harassing her on account of demand of dowry. She was being threatened that until and unless she brought a sum of Rs. 50,000/- and a motorcycle from her father's house, she would not be kept in the matrimonial home. She somehow arranged for a sum of Rs. 30,000/- and 40 quintal of wheat from her father and gave the same to her matrimonial relatives, but they persisted with their tormenting activities. Owing to this misbehaviour meted out to her at the matrimonial house, Smt. Leela stayed at her father's house for about 7 to 8 months. After that, the mutual relatives of both families intervened and the girl was sent back to the matrimonial home. The complainant alleged that he received a call from his niece in that morning at about 7 o'clock on his mobile No.9813802265. She was crying and complaining one phone that her matrimonial relatives were assaulting her and were threatening to administer poison to her. At about 12 o'clock, a person named Pratapchandra, resident of Aasan, village of the accused approached and informed the informant that Smt. Leela Devi had expired. She was crying and complaining one phone that her matrimonial relatives were assaulting her and were threatening to administer poison to her. At about 12 o'clock, a person named Pratapchandra, resident of Aasan, village of the accused approached and informed the informant that Smt. Leela Devi had expired. Upon this the first informant and Shankar Lal, father of the girl, accompanied with a few more persons reached the Dhani of the accused. Only the Jethani Smt. Kamlesh was available there. She feigned ignorance as to how Smt. Leela had expired. The first informant alleged that his niece had been murdered by the accused persons by administering poison. 4. On the basis of this written report, an FIR No. 107/2007 was registered at Police Station Bhirani for the offences under Sections 304-B, 498-A and 406 IPC and investigation commenced against the appellant herein, his father Shri Chandradutt, mother Karkauri Devi, brother Sube Singh and sister in law Kamlesh. The body of the deceased was subjected to postmortem and it came to light that no marks of violence were visible on the dead body. The opinion regarding the cause of death was kept reserved for chemical examination of the visceras. After investigation, charge sheet came to be filed against the appellant herein, being the husband of the deceased, Chandradutt, father in law of the deceased and Harkauri, mother in law of the deceased. The trial court framed charges against all the accused for the offences under Sections 304-B, 498-A and 406 IPC. The accused pleaded not guilty and claimed trial. After the statements of 5 prosecution witnesses had been recorded by the trial court, the prosecution filed an application under section 319 CrPC, 1973 which was accepted and Sube Singh, brother in law of the deceased and Smt. Kamlesh, sister in law of the deceased, were also summoned to face trial as additional accused. After appearance of these two accused before the trial court, they too were read over the charges for the offences under Sections 498-A, 304-B IPC. A total of 7 witnesses were examined by the prosecution to prove its case. The accused, upon being examined under section 313 CrPC, 1973 denied the prosecution story and claimed that the deceased was married to Vinod for about five and half years. A total of 7 witnesses were examined by the prosecution to prove its case. The accused, upon being examined under section 313 CrPC, 1973 denied the prosecution story and claimed that the deceased was married to Vinod for about five and half years. Neither dowry was given in the marriage nor was ever demanded from the deceased at the matrimonial home during this period of five and half years. The deceased was not able to conceive and she was being provided regular medical treatment. She was frustrated on account of not being able to bear a child and committed suicide out of this frustration. As many as 3 witnesses were examined in defence. While concluding the matter, at para No.26 of the impugned judgment, the trial Judge relied upon the statement of Shankar Lal recorded under section 161 CrPC, 1973 and so also the statement of P.W.1 Subhash, being the brother of the deceased and P.W.5 Satpal, being the first informant and maternal uncle of the deceased and proceeded to convict and sentence the appellant as above while recording acquittal of the remaining coaccused by giving them the benefit of doubt. The appellant was also acquitted from the charge under Section 406 IPC. Being aggrieved by this judgment of conviction dated 11.11.2014, the instant appeal has been preferred. 5. Being aggrieved by the acquittal of the four co-accused other than the present appellant, one Shri Gopal Lal preferred an appeal under section 372 CrPC, 1973 bearing No.1063/2015. The appeal was delayed and the Hon'ble Division Bench, after considering the same, rejected it vide order dated 08.02.2016. Thus, acquittal of the accused Chandradutt, Smt. Harkauri Devi, Sube Singh and Smt. Kamlesh had attained finality. 6. Mr. Pradeep Shah, learned counsel representing the appellant, vehemently and fervently advanced the following arguments :- 1. That there is no evidence worth the name available on record to establish that the deceased was ever harassed or humiliated by the appellant or the other matrimonial relatives on account of bringing less dowry. 2. 6. Mr. Pradeep Shah, learned counsel representing the appellant, vehemently and fervently advanced the following arguments :- 1. That there is no evidence worth the name available on record to establish that the deceased was ever harassed or humiliated by the appellant or the other matrimonial relatives on account of bringing less dowry. 2. That the allegation regarding the deceased having called the first informant on the very day of the incident and having complained that she was being harassed and humiliated by the appellant herein and the co-accused persons on account of demand of dowry is totally false and fabricated because neither any call details were procured nor filed on record so as to substantiate the said allegation. 3. That it is an admitted position that the deceased could not conceive after five and half years of marriage with the appellant and thus, she was frustrated on this account and committed suicide because of the inability to bear a child. 4. That the four co-accused persons, against whom identical allegations were levelled by the prosecution, were acquitted by the very same judgment and thus, different view cannot be taken qua the appellant. 5. That the trial court committed grave error of law in placing reliance and admitting in evidence, the statement of Shankar Lal, father of the deceased, recorded by the police under section 161 CrPC, 1973 because such statement does not relate to the cause of death and thus, could not have been read in evidence for any purpose whatsoever. 6. That the trial court committed grave error of law in ignoring and bypassing the statements of 3 defence witnesses, namely, D.W. 1 Pratapchandra, D.W. 2. Dhanni Devi and D.W.3 Badho Devi, all of whom were examined by the Investigating Officer during investigation. As per Mr. Shah, these witnesses categorically and affirmatively stated that the deceased Smt. Leela Devi was perturbed on account of not being able to conceive. 7. That the Investigating Officer Shri Vipin Sharma (P.W.7), admitted in his crossexamination that during the course of investigation, he recorded evidence of numerous witnesses, who stated that neither was any dowry ever demanded from Smt. Leela Devi nor was she harassed in the matrimonial home on account of any such demand. 7. That the Investigating Officer Shri Vipin Sharma (P.W.7), admitted in his crossexamination that during the course of investigation, he recorded evidence of numerous witnesses, who stated that neither was any dowry ever demanded from Smt. Leela Devi nor was she harassed in the matrimonial home on account of any such demand. The Investigating Officer further admitted that Smt. Leela Devi was regularly being taken to Hisar for getting her treated for the medical condition of not being able to conceive. 7. On these grounds, Mr. Shah implored the court to set aside the impugned judgment by accepting the instant appeal and to acquit the appellant. In alternative, he urged that even if the prosecution allegations are accepted to be true, at the highest, the offence, if any attributed to the appellant, would not travel beyond Section 498-A and 306 IPC. The appellant has remained in custody for a period well in excess of five years and thus, the sentence awarded to him deserves to be reduced to the period already undergone by him. 8. Per contra, Mr. Chandra Shekhar Ojha, learned Public Prosecutor, vehemently and fervently opposed the submissions advanced by Mr. Shah. He urged that the appellant is the husband of the deceased. He was under an obligation moral as well as legal to ensure that his wife is not maltreated in the matrimonial home, but rather than ensuring this and making her comfortable, the appellant and his relatives indulged in meting out harassment and tormenting the deceased for demand of a sum of Rs. 50,000/- and a motorcycle. The maternal relatives of the deceased somehow or the other managed to put together a sum of Rs. 30,000/- and a huge quantity of food-grains and gave the same to the accused persons. However, the greed of the accused persons was not sated by this endeavour of the father of the deceased and they persisted with the demand for motorcycle and a sum of Rs. 50,000/-, due to which, the deceased lost all hopes and ended her life by consuming poison in the matrimonial home within seven years of her marriage. He, thus, urged that the trial court was perfectly justified in convicting and sentencing the appellant by the impugned judgment and the appeal deserves to be rejected. 9. 50,000/-, due to which, the deceased lost all hopes and ended her life by consuming poison in the matrimonial home within seven years of her marriage. He, thus, urged that the trial court was perfectly justified in convicting and sentencing the appellant by the impugned judgment and the appeal deserves to be rejected. 9. We have given our thoughtful consideration to the submissions advanced at bar and gone through the impugned judgment and have minutely re-appreciated the evidence available on record. 10. First and foremost, we are compelled to note that the tenor of the prosecution case as set out in the written report (Ex.P/2) and the statements of the material prosecution witnesses P.W.1 Subhash (brother of the deceased) and P.W.5 Satpal (maternal uncle of the deceased) clearly indicates that there are common allegations as against the appellant herein and the acquitted co-accused persons regarding the harassment and humiliation meted to the deceased on account of demand of dowry. It is manifest from the record that the co-accused Chandradutt, Smt. Harkauri, Sube Singh and Smt. Kamlesh stand acquitted by the trial court by the impugned judgment and their acquittal has attained finality with the rejection of the Appeal No.1063/2015. From a minute and threadbare perusal of the statements of Shri Subhash (P.W.1) and Shri Satpal (P.W.5), who are the only two witnesses examined by the prosecution to prove the material charges levelled against the accused, it is apparent that there is no allegation whatsoever in their testimony regarding the accused having demanded any dowry etc. at the time of the marriage. These two witnesses have stated that some time after the marriage, the accused started demanding a motorcycle and a sum of Rs. 50,000/- from the deceased. These witnesses further alleged that about one and half years before the unfortunate incident, Smt. Leela had lived at the maternal home at Sadulpur and her in-laws did not come to take her back to the matrimonial home. Satpal, Shankar Lal and Rajendra went to the matrimonial home of the deceased and thereafter, appellant Vinod came to the village for taking back his wife deceased Smt. Leela Devi. At that time, she was sent with Vinod with a sum of Rs. 30,000/- in cash and 40 quintals of wheat. Satpal, Shankar Lal and Rajendra went to the matrimonial home of the deceased and thereafter, appellant Vinod came to the village for taking back his wife deceased Smt. Leela Devi. At that time, she was sent with Vinod with a sum of Rs. 30,000/- in cash and 40 quintals of wheat. The witness Subhash (P.W.1) did not allege that such food-grains and money was given on the demand of Vinod or that he expressed any dissatisfaction at that time. There is no allegation of Subhash or Satpal in their statements that when Vinod came to take back Smt. Leela Devi with himself, he made any demand from the maternal relatives. Both the witnesses have stated that after Smt. Leela Devi returned to the matrimonial home, for some time, the behaviour of the accused was good with her, but thereafter, the demand of Rs. 50,000/- and a motorcycle resumed. However, neither of the witnesses stated that the appellant Vinod in particular was making these demands from the deceased. The allegation of demand of dowry is levelled commonly against Vinod, along with the other matrimonial relatives, viz. Chandradutt, Smt. Harkauri, Sube Singh and Smt. Kamlesh. In the cross( 9 of 11) [CRLA-860/2014] examination conducted from Shri Subhash (P.W.1), brother of the deceased, he feigned ignorance to the suggestion that Smt. Leela was taken by the accused party to Bhadra and Hisar for treatment of her medical condition of not being able to conceive. However, he admitted that Smt. Leela was not having any issue from her marriage with Vinod. The same suggestion was given in cross-examination to Shri Satpal (P.W.5), the first informant, who too feigned ignorance in this regard. Shri Satpal alleged in the FIR as well as in his sworn testimony that on the day of the incident, he received a call from Smt. Leela that her father in law, mother in law, husband, Jeth and Jethani were harassing and tormenting her and were making a demand for Rs. 50,000/- and a motorcycle. However, he did not provide any call details to the Investigating Officer to corroborate this allegation. Furthermore, Shri Shubhash, the brother of the deceased admitted in his cross-examination that they were having landline phone in their residence. 50,000/- and a motorcycle. However, he did not provide any call details to the Investigating Officer to corroborate this allegation. Furthermore, Shri Shubhash, the brother of the deceased admitted in his cross-examination that they were having landline phone in their residence. Thus, it is beyond comprehension that the deceased would prefer to call Satpal for making complaint regarding the demand of dowry allegedly meted out to her by the accused while ignoring her close maternal relatives, i.e. father and brother. Apart from this, there is not a shred of allegation in the statement of these two witnesses that the deceased ever called her maternal relatives with a complaint of maltreatment in the matrimonial home. 11. The defence witnesses D.W.1 Pratapchandra, D.W.2 Dhanni Devi and D.W.3 Badho Devi are all neighbours of the house, where the accused resides. All of them stated in their testimony that Smt. Leela Devi was seriously perturbed and disturbed on account of not being able to conceive. The Investigating Officer Shri Vipin Sharma admitted in his cross-examination that during investigation, he recorded statements of numerous witnesses including the three defence witnesses, who stated that Smt. Leela Devi was never harassed or humiliated in the matrimonial home on account of demand of dowry. She was perturbed on account of not being able to bear a child. The trial court, while recording the conviction of the accused selected bits and pieces from the prosecution evidence for recording finding of guilt against the appellant alone and thus, these findings cannot be construed as having been arrived at by proper and apropos appreciation of evidence. As a matter of fact, the trial court committed a legal blunder while relying upon the statement of Shri Shankar Lal, father of the deceased, recorded by the Investigating Officer under section 161 CrPC, 1973 who could not be examined at the trial because he passed away. Such statement did not relate to the death of Shri Shankar Lal himself and thus, was inadmissible in evidence. As has been noted above, the four co-accused persons, namely, Chandradutt, Smt. Harkauri, Sube Singh and Smt. Kamlesh, against whom identical allegations as appellant herein were levelled by the prosecution, have been acquitted by the trial Judge by the very same impugned judgment. As has been noted above, the four co-accused persons, namely, Chandradutt, Smt. Harkauri, Sube Singh and Smt. Kamlesh, against whom identical allegations as appellant herein were levelled by the prosecution, have been acquitted by the trial Judge by the very same impugned judgment. Furthermore, no satisfactory evidence is available on record so as to satisfy the court beyond all manner of doubt that the deceased was harassed or humiliated in the matrimonial home on account of demand of dowry soon before her death that she ended her life on account of this maltreatment. Rather, the circumstances clearly indicate that the deceased was perturbed and disturbed on account of not being able to bear a child almost for five and half years from her marriage despite being provided treatment by the accused and in all likelihood, she committed suicide out of this frustration. 12. In the wake of the discussion made herein above, we are of the firm opinion that the impugned judgment, whereby the appellant was convicted and sentenced for the offences under Sections 498-A and 304-B cannot be sustained and he deserves to be acquitted of the charges. Thus, the appeal deserves to be and is hereby allowed. The impugned judgment dated 11.11.2014 convicting the appellant for the offences under Section 498-A and 304-B IPC and sentencing him to as noted herein above is hereby quashed and set aside. The appellant is acquitted of all the charges by giving him benefit of doubt. The appellant is in custody. He shall be released forthwith, if not wanted in any other case.