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2018 DIGILAW 809 (RAJ)

State of Rajasthan v. Raju Lal Saini

2018-03-20

GOVERDHAN BARDHAR, MOHAMMAD RAFIQ

body2018
JUDGMENT Goverdhan Bardhar, J. - Heard on the application filed under section 5 of the Limitation Act for condonation of delay of 53 days in filing the criminal leave to appeal. 2. The application is accordingly allowed and the delay of 53 days in filing the criminal leave to appeal is condoned. 3. The instant criminal leave to appeal has been filed by the State of Rajasthan against the impugned judgement dated 15.06.2013 passed by the Court of learned Additional Sessions Judge, Bandikui, District Dausa ('the learned trial court' for short), in Sessions Case No.51/2012 whereby accused respondent has been acquitted of the charges framed against him under Sections 302, 304B and 498A IPC. 4. In brief the factual matrix of the case is that complainant Gokul s/o Bhonri Lal (PW1), by caste Mali, resident of Poonya Ka Bas, Sikandara, Police Station Sikandara submitted a typed report (Ex.P1) to the SHO, Police Station Bandikui to this effect that he is resident of Sikandara. He solemnized the marriage of his both daughters; Manju and Lalita on 19.02.2009 with Raju and Rinku, both sons of Ganga Sahay s/o Khadka Mali, residents of Dhani Dehda, Tan Anantwada. Marriage of his daughter Manju was solemnized with Raju. In the marriage he gave all the household articles, utensils, box of iron, cot, clothes and in jewelry 'nath', teeka, tops, jantar, anklets, kanakti of silver, two tola gold and 750 gm. silver and Rs. 31,000/- in cash. After marriage, in the month of Janaury 2012, "gauna" of Manju was done with Raju. After 2-5 days of "gauna", Manju came to his house and told that her husband Raju, Ganga Sahay (father-in-law), Khyali (jeth), Kamli (mother-inlaw), Soma (jethani), Suman and Rinku (devar) used to pass on remarks in connection with dowry and made demand of Rs. 50,000/-. The complainant and his family members used counselling skills and advised Manju to adjust herself in the new family. After 2-4 days Raju came to bring Manju. Thereafter, Manju went to in-laws house. Afterwards, Manju remained for 20 days. On 15th April there was a function, so for inviting to attend the function when his brother's son went to take Manju, Raju, Ganga Sahay, Khyali, Kamli, Soma, Suman and Rinku behaved badly making complaint against Manju. They literally expelled her saying that if payment of Rs. 50,000/- is not made no-one will come to bring her. On 15th April there was a function, so for inviting to attend the function when his brother's son went to take Manju, Raju, Ganga Sahay, Khyali, Kamli, Soma, Suman and Rinku behaved badly making complaint against Manju. They literally expelled her saying that if payment of Rs. 50,000/- is not made no-one will come to bring her. The applicant is a poor man, so he could not fulfill the demand of dowry by making payment of Rs. 50,000/- in cash to Raju and above-named other family members. The complainant further mentioned that after being counselled, Raju and his cousin's son came to take Manju, thus she went along-with them. But at that time it was told that payment of Rs. 50,000/- will have to be made. On 01.5.2012 there was a programme of unbutton (Jadoola) of his younger brother's son, in which Raju was also invited along-with Manju. On conversation, Manju told that since 27.04.2012 when she is here, Raju and his family members used to give beatings to her and in the programme of unbotton (jadoola) neither they are coming to attend nor permitting her to attend. Upon this complainant advised her not to come to attend the function against their will. As all of a sudden he would not be able to make arrangement of Rs. 50,000/-. 5. On 2.5.2012 at about 12:00 in the night Raju informed that Manju had died in the night. After hearing such news, the complainant and his family reached at Manju's inlaws At Anantwada. But before they reached, Raju and members of his family without giving information to the police and also without allowing others to see the dead body of Manju got her cremated. The complainant further mentioned that due to serious shock he could not lodge the report immediately. Therefore, today he is submitting the report. Thus action be taken. 6. On the basis of aforesaid typed report (Ex.P1), an F.I.R. No. 338/2012 was registered at Police Station Bandikui District Dausa for the offences under Sections 304B/498A IPC. After investigation, the police submitted charge-sheet against the accused respondent under sections 498A, 304B IPC in the Court concerned. The matter being triable by the Court of Session was sent to the Court of Session from the matter was transferred to the learned trial court. 7. After investigation, the police submitted charge-sheet against the accused respondent under sections 498A, 304B IPC in the Court concerned. The matter being triable by the Court of Session was sent to the Court of Session from the matter was transferred to the learned trial court. 7. Learned trial court after hearing the arguments of both the parties, framed the charges against the accused respondent for the offences under Sections 498A, 304B and 302 IPC and explained him, who denied for the same and claimed for trial. 8. To substantiate the charges, prosecution examined as many as nine witnesses and exhibited 15 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 not produce any witness but exhibited five documents. 9. Learned trial court after hearing the final arguments of both the parties, acquitted the accused respondent for the charges levelled against them vide impugned judgement dated 15.06.2013. 10. Learned Public Prosecutor argued that the learned trial court erred in not believing upon the statements of the prosecution witnesses and also the documents submitted by the prosecution, by which the offences against the accused respondent are well proved. Learned trial court also erred in not believing on the fact that the in-laws of the deceased Manju tortured her for or in connection with demand of dowry and they demanded Rs. 50,000/- in cash and she was subjected to mental and physical torture. The cruelty was started from the day of marriage of Manju and continued till her death, which is clear from the statements of prosecution witnesses. The learned trial court further erred in not considering the fact that the information as to death of deceased Manju was not given to her parents by her in-laws and did cremation in their absence, from which it clearly goes to show that the in-laws of Manju committed murder. Learned trial court also failed to consider that the death of Manju was occurred within seven years of her marriage under abnormal circumstances and her death was not natural. 11. Heard learned the learned Public Prosecutor and perused the impugned Judgement and statements of prosecution witnesses and different exhibits, we find that main witnesses of the prosecution namely; Nathu Lal (PW6), Ganga Sahay (PW7) and Jagram @ Jairam (PW8) have not supported the prosecution story and turned hostile. 12. 11. Heard learned the learned Public Prosecutor and perused the impugned Judgement and statements of prosecution witnesses and different exhibits, we find that main witnesses of the prosecution namely; Nathu Lal (PW6), Ganga Sahay (PW7) and Jagram @ Jairam (PW8) have not supported the prosecution story and turned hostile. 12. Gokul (PW1) who is complainant and father of the deceased Manju) deposed in examination-in-chief the averments made in the typed report (Ex.P1). This witness in cross-examination deposed that his village is situated at the distance of 7-8 km. from the in-laws of Manju. This witness deposed that A to B, C to D, E to F, G to H and I to J parts of the police statement (Ex.D1) are wrong. This witness deposed that the report (Ex.P1) was not got registered by him. This witness admitted that in the report (Ex.P1) he did not mention about demand of motorcycle in dowry. Raju (accused respondent) never made any demand of dowry from him. On which date Manju told him about demand of dowry, he does not remember. This witness further deposed that in connection with giving beatings and committing murder of Manju, he is saying such after the death of Manju on the say of the villagers. Anandi (PW2), mother of the deceased deposed that Raju used to give beatings to Manju in connection with fulfilling the demand of vehicle and Rs. 50,000/- in cash. When Manju was at home, Raju (accused respondent) came to take her, she was sent with Raju on 27th after getting her understood. In the programme of 'Jadula' Raju and Manju did not come. Lateron it was informed that Manju has been murdered. This witness deposed that A to B, C to D, E to F parts of the Police Statement (Ex.D2) was not recorded on his say. Hajari Lal (PW3), uncle of the deceased in examination-in-chief reiterated the averments made by complainant Gokul (PW1) and Anandi (PW2) in their examination-inchief. In cross-examination, this witness deposed that when Manju came on third time from her in-laws she did not tell anything except demand of money but on which date it was told, he does not remember. When Manju told about the demand of money, Raju (accused respondent) was not there. In cross-examination, this witness deposed that when Manju came on third time from her in-laws she did not tell anything except demand of money but on which date it was told, he does not remember. When Manju told about the demand of money, Raju (accused respondent) was not there. This witness further deposed that he is unaware that in connection with death of Manju, any telephonic call was received on the phone of his son Mahendra and Mahendra also did not tell him anything. This witness admitted that A to B part of police statement (Ex.D2) was not made by him and C to D part was not written on his say. This witness admitted that he did not receive any information about the death of Manju. Mahendra Kumar (PW4), uncle of the deceased in examination-in-chief reiterated almost the same averments made by Gokul (PW1), Anandi (PW2) and Hajarilal (PW3) in their examination-in-chief. In crossexamination this witness deposed that A to B part of the police statement (Ex.D2) was not made by him to the police. This witness further deposed that it is wrong that they made any demand of money from Raju (accused respondent) and for this reason they planned any conspiracy to falsely implicate Raju (accused respondent). This witness admitted that whatever has been stated by him in the examination-in-chief, same was not stated by him in the police statement. Laxman (PW5), grandfather of the deceased in examination-in-chief reiterated almost the similar averments made by Gokul (PW1), Anandi (PW2), Hajarilal (PW3) and Mahendra Kumar (PW4) in their examination in chief. This witness in crossexamination admitted that neither he had seen nor anybody had told him that Raju (accused respondent) committed murder of Manjulata (since deceased). No report was submitted by him at the police station in connection with demand of dowry or cruelty to Manju. This witness further admitted that in his presence Raju did not make any demand of dowry. This witness further admitted that the police did not record his statement. He denied the police statement (Ex.D5). Nathulal (PW6), cousin brother of Raju (accused respondent) examination-in-chief deposed that Raju neither used to give beatings nor used to treat badly in connection with demand of dowry. This witness further deposed that Maju died due to pain in abdomen. This witness did not support the prosecution story and turned hostile. He denied the police statement (Ex.D5). Nathulal (PW6), cousin brother of Raju (accused respondent) examination-in-chief deposed that Raju neither used to give beatings nor used to treat badly in connection with demand of dowry. This witness further deposed that Maju died due to pain in abdomen. This witness did not support the prosecution story and turned hostile. Ganga Sahay (PW7), cousin brother of father of Raju (accused respondent) in examination-in-chief deposed that Raju and his family members used to keep Manju happily. They neither used to make any demand of dowry from Manju nor used to give beatings to her. Manju died due to sickness and did not die due to beatings. This witness did not support the prosecution story and turned hostile. Jagram @ Jairam (PW8), neighbour of Raju (accused respondent) in examination-in-chief deposed that Manju died due to disease of abdomen. Prior to death of Manju, he did not see Raju giving beatings to her. This witness did not support the prosecution story and turned hostile. 13. Suresh Kumar (PW9) in examination-in-chief deposed that on 8.5.2012 he was posted as Dy. Superintendent of Police, Bandikui. On that date he received an FIR No.338/2012, for investigation which was registered at Police Station Bandikui for the offences under sections 304B and 201 IPC. This witness reiterated the averments in the charge-sheet (Ex.P3) submitted by him before the concerned court. 14. The statements of aforesaid prosecution witnesses are full of contradictions and do not inspire confidence and the prosecution has failed to establish that accused committed murder of Pooja. 15. 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 not have been stated to them at all. 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 not 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. 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 not or could not 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. 16. So far as charge against the accused respondents for offence under sections 304B and 498A IPC is concerned, from the statements of material witnesses of the prosecution it is clear that the prosecution has failed to prove that soon before the death of deceased Neetu, the accused respondents subjected her to cruelty and harassment in connection with demand of dowry. 17. As per the definition of "Dowry Death" in Section 304B IPC and the wording in the presumptive section 113B of the Indian Evidence Act, one of the essential ingredients amongst others, in both the provisions is that the woman concerned must have been "soon before her death subjected to cruelty or harassment for or in connection with the demand of dowry". Presumption under section 113B of the Indian Evidence Act is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the Court to raise a presumption that accused caused the dowry death. 18. The evidence of Gokul (PW1), Anandi (PW2), Hajari Lal (PW3), Mahendra Kumar (PW4) and Laxman (PW5) 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. Thus the prosecution has failed to prove charges against the accused respondent for the offence under sections 498A, 304B in the alternate under section 302 IPC. 19. 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.