BIRENDRANATH GAREWAL Vs. STATE OF M P

JUDGEMENT

(1.) This appeal is directed against judgment dated 10.6.1996 passed by 6th Additional Sessions Judge, Durg in Sessions Trial No.494/1993. By the impugned judgment, accused/appellant Birendranath Garewal has been convicted under Sections 304B and 498A of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years and two years, respectively. Both the sentences are directed to run concurrently. By the said judgment, the learned Additional Sessions Judge acquitted other accused persons Kedamath Garewal and Jitendra Garewal of the charges framed against them.

(2.) Case of the prosecution, in brief, is as under:

(3.) Smt. Meena Shastri, learned counsel for the appellant argued that the prosecution utterly failed to prove a case of dowry death against the appellant. The prosecution also failed to prove that the deceased was subjected to cruelty or harassment by the appellant in connection with any demand for dowry. The provisions of Sections 113A and 113B of the Evidence Act are not applicable in this case. The prosecution had not established that prior to the death of the deceased she had been either subject to cruelty or harassment or for any demand of dowry. Evidence in this is wholly insufficient to convict the appellant. Looking to the evidence of Udayram (PW6), it appears that after the incident took place on 29.5.1993 and FIR (Ex.P2A) was lodged on 8.6.1993, i.e., after delay of 10 days of the death of the deceased. In cross-examination, Udayram (PW6) specifically stated that on 29.5.1993, he and his wife Rambai (PW1) had stayed at the house of the appellant. He further stated that it is true that being aggrieved with the death of his daughter Anita, he made the written complaint (Ex.P2). The evidence of Rambai (PW1) and Udayram (PW6) were full of omissions as to their statements to the police and in the Court during the trial. Therefore, the evidence of prosecution witnesses are not reliable and cogent and conviction cannot be based on their testimonies. Learned counsel further argued that when the deceased was admitted in District Hospital, Durg in burnt condition, Dr. V.R. Meshram (PW7) gave certificate that injured Anita (the deceased) was physically and mentally fit to make statement. Head Constable Dura Prasad recorded dying declaration of deceased Anita. Dr. V.R. Meshram (PW7) was examined by the prosecution itself. Therefore, his statement made before the Court is binding on the prosecution. The appellant deserves to be acquitted of the charges framed against him. Learned counsel placed reliance on Amar Singh v. State of Rajasthan, 2010 9 SCC 64. Raman Kumar v. State of Punjab, 2009 16 SCC 35. and Appasaheb and another v. State of Maharashtra, 2007 AIR(SCW) 456.