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2018 DIGILAW 924 (ALL)

RAJ KUMAR @ GUDDU v. STATE OF U. P.

2018-04-16

KRISHNA PRATAP SINGH

body2018
JUDGMENT Hon’ble Krishna Singh, J.—The instant criminal appeal has been preferred on behalf of the accused-appellant Raj Kumar @ Guddu s/o Sri Ram Chander, r/o Cotton Mills Colony, P.S Jaitpura, District Varanasi challenging the impugned order i.e. second paragraph of the operative portion of the order passed in the judgment dated 3.10.1991 by IInd Additional Sessions Judge, Varanasi in Sessions Trial No. 133 of 1990 (State v. Raj Kumar @ Guddu and others) arising out of case crime No. 222 of 1986, under Section 304 B of the Indian Penal Code & Section 4 of the Dowry Prohibition Act, Police Station Jaitpura, District Varanasi by which the complainant/informant Punwasi is entitled to get back the material exhibits namely ornaments etc. which were recovered from the dead body of the deceased-Smt. Kusum Devi. 2. The origin of facts emanating from the prosecution in a short conspectus is that on 7.12.1986, at about 8:05 a.m., complainant Punwasi lodged a written report Ext. Ka 1 at Jaitpura Police Station with the allegations that his daughter Smt. Kusum Devi aged about 20 years was married nearly two years ago with Raj Kumar alias Guddu. After six months of the marriage, Raj Kumar began to torture Smt. Kusum Devi. He used to remark that her father had given nothing in marriage and the goods given in marriage were useless. Smt. Kusum Devi informed the complainant and her mother. Complainant then had a talk with Raj Kumar and his father. They demanded some more money and promised nothing would be done later on. Nearly three months ago Raj Kumar began to pressurZe Smt. Kusum Devi to demand a sum of Rs. 10,000/- from her father. Smt. Kusum Devi told that her father was unable to give this amount. Raj Kumar then assaulted Smt. Kusum Devi. The mother-in-law of Kusum Devi began to torture her. She was also assaulting her. Raj Kumar used to give threat to kill her. Raj Kumar used to send Kusum Devi to the complainant’s house to demand money. On 5.12.1986, Kusum Devi had gone to the house of the complainant and told that in case a sum of Rs. 10,000/- was not paid, she would not be saved. The complainant allowed Kusum Devi to go back to the house of Raj Kumar on 6.12.1986. Raj Kumar used to send Kusum Devi to the complainant’s house to demand money. On 5.12.1986, Kusum Devi had gone to the house of the complainant and told that in case a sum of Rs. 10,000/- was not paid, she would not be saved. The complainant allowed Kusum Devi to go back to the house of Raj Kumar on 6.12.1986. On 7.12.1986 at about 6 a.m., he came to know through a resident of the same mohalla that in-laws of Kusum Devi murdered her by pressing her throat/neck. 3. On the written report Ext. Ka 1, police registered a case against the appellant and other co-accused for committing the offences under Section 302 of the IPC and Section 4 of the Dowry Prohibition Act. After registration of the case, the Investigating Officer swung into action and recorded the statement of the complainant and other witnesses. The post-mortem of the deceased was performed by doctor on 7.12.1986 at about 5:15 p.m. After completing the necessary formalities, the Investigating Officer submitted the charge-sheet against the appellant and other two co-accused under Section 302 of the IPC and Section 4 of the Dowry Prohibition Act. 4. The case was committed by the concerned Magistrate, to the Court of Sessions for trial. The trial Court after hearing the prosecution as well as defence and perusing the material available on record, framed charges against the appellant and other two co-accused namely Ram Chander and Smt. Radha Devi under Section 304 B of the IPC and Section 4 of the Dowry Prohibition Act. The charge framed were read over and explained to the appellant and other co-accused, they abjured the guilt and claimed to be tried, hence, the prosecution was called upon to lead the evidence. 5. In order to prove guilt of the appellant and other co-accused, prosecution had examined complainant Punwasi (PW-1), Dr. Ashok Kumar (PW-2), S.I. Ram Lal (PW-3), Constable Ram Giri (PW-4), and Dr. C.B. Tripathi (PW-5). 6. After conclusion of the prosecution evidence, the appellant and other two co-accused were examined under Section 313 Cr.P.C and in their statement, they pleaded not guilty and denied their participation in the alleged crime. 7. Ashok Kumar (PW-2), S.I. Ram Lal (PW-3), Constable Ram Giri (PW-4), and Dr. C.B. Tripathi (PW-5). 6. After conclusion of the prosecution evidence, the appellant and other two co-accused were examined under Section 313 Cr.P.C and in their statement, they pleaded not guilty and denied their participation in the alleged crime. 7. The learned trial Judge upon appreciation and appraisal of material evidence on record held that the prosecution has failed to prove its case beyond all reasonable doubt and accordingly acquitted the appellant and other two co-accused of the offence punishable under Section 304 B of the IPC and Section 4 of the Dowry Prohibition Act. 8. In order to appreciate the controversy in the present case, the order passed by the trial Court in S.T. No. 133 of 1990 (State v. Raj Kumar @ Guddu and others) is quoted below : “Accused Raj Kumar alias Guddu, Ram Chandar and Smt. Radha Devi are acquitted of the offences punishable under Section 4, Dowry Prohibition Act and Section 304 B, IPC and they are, therefore, set at liberty. They are on bail. Their bail bonds are cancelled and sureties discharged. Complainant Punwasi is entitled to get back the material exhibits namely ornaments etc. which were recovered from the dead body of the deceased. Other exhibits, if any, shall be destroyed after the expiration of period of appeal.” 9. I have heard Mr. Virendra Singh, learned counsel appearing on behalf of the appellant and Sri A.K. Trivedi, learned AGA appearing on behalf of the State and perused the material available on record. 10. Learned counsel for the appellant has contended that impugned order passed by the learned trial Court is per se, illegal and against the weight of evidence on record. Learned counsel next contended that trial Court upon appreciation and appraisal of material evidence on record did not found appellant and other two co-accused guilty for the offence punishable under Section 304 B of the IPC and Section 4 of the Dowry Prohibition Act. The appellant is the husband of the deceased (Female Hindu Dying Intestate) and deceased died issueless. In view of the provisions of Section 15 (1) (a) of the Hindu Succession Act, 1956, appellant being legal-heir of the deceased is entitled to get the property (i.e. ornaments etc) of the deceased. The appellant is the husband of the deceased (Female Hindu Dying Intestate) and deceased died issueless. In view of the provisions of Section 15 (1) (a) of the Hindu Succession Act, 1956, appellant being legal-heir of the deceased is entitled to get the property (i.e. ornaments etc) of the deceased. Therefore, the appeal filed on behalf of the appellant against the impugned order enduring on justifiable grounds deserves to be allowed. 11. Per contra, learned AGA appearing on behalf of the State has contended that in view of the bar contained in the Section 25 of the Hindu Succession Act, 1956, appellant is not entitled to get the property (i.e. ornaments etc.) of the deceased and the findings recorded by the trial Court does not suffer from any legal infirmity and, as such, this appeal is devoid of merit and deserves to be dismissed. 12. In order to appreciate the rival contention, it would be relevant to reproduce the provisions of Sections 15 and 25 of the Hindu Succession Act, 1956 which read as under : 15. General rules of succession in the case of female Hindus.— (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16,— (a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband; (b) secondly, upon the heirs of the husband; (c) thirdly, upon the mother and father; (d) fourthly, upon the heirs of the father; and (e) lastly, upon the heirs of the mother. (2) Notwithstanding anything contained in sub-section (1),— (a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter), not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and (b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband. 25. 25. Murderer disqualified.—A person who commits murder or abets the commission of murder shall be disqualified from inheriting the property of the person murdered, or any other property in furtherance of the succession to which he or she committed or abetted the commission of the murder. 13. It is evident from the judgment and order passed by the trial Court in the aforesaid Sessions Trial that the trial Court upon appreciation and appraisal of material evidence on record held that the prosecution has failed to prove its case beyond all reasonable doubt against all the accused and accordingly all of them were acquitted by the trial Court. No appeal has been filed on behalf of the State against the judgment and order of acquittal, passed by the trial Court in the aforesaid Sessions Trial. In view of the above, it cannot be said that appellant and other co-accused had committed the murder/dowry death of the deceased or abets the commission of murder/dowry death of the deceased. It is not in dispute that appellant is the husband of the deceased and deceased died issueless. Complainant is the father of the deceased. He has stated in his statement on oath that “now I will not take the ornaments of the deceased, accused is entitled for the same.” 14. Considering the above facts and circumstances of the case and in view of the provisions of Section 15 (1) (a) of the Hindu Succession Act, 1956, I am of the view that appellant being legal heir of the deceased (Female Hindu Dying Intestate), is entitled to get the property (i.e. ornaments etc.) of the deceased and shall not be disqualified from inheriting the property of the deceased in view of the bar contained in Section 25 of the said Act. 15. In view of the foregoing discussion, I am of the considered view that impugned order i.e. second paragraph of the operative portion of the order passed by the trial Court is not correct and proper. In the result the appeal succeeds and is hereby allowed. Impugned order passed by the Court below is hereby quashed. Trial Court is directed to release the ornaments which were recovered from the dead body of the deceased in favour of the appellant. 16. In the result the appeal succeeds and is hereby allowed. Impugned order passed by the Court below is hereby quashed. Trial Court is directed to release the ornaments which were recovered from the dead body of the deceased in favour of the appellant. 16. Let a copy of the judgment alongwith lower Court record be immediately sent to the Court below for compliance and necessary entries in the relevant register under intimation to this Court within three months.