JAMADAR OJHA Vs. STATE

JUDGEMENT

(1.) Vide impugned judgment dated 29th Aug., 2012, Rajinder Tiwari and Sanjay Tiwari were convicted for offences punishable under Sections 498A/304B IPC. Vide order on sentence dated 15th Sept., 2012 Rajinder Tiwari and Sanjay Tiwari were sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 10,000.00 each for offence punishable under Sec. 498A Penal Code and rigorous imprisonment for period of seven years for offence punishable under Sec. 304B IPC. In Crl. A. 134/2013, Rajinder Tiwari and Sanjay Tiwari had challenged their conviction and order on sentence. Since Sanjay Tiwari died having committed suicide on 2nd March, 2017, thus, Crl.A. 134/2013 challenging conviction and order on sentence stands abated qua him and survives only qua Rajinder Tiwari.

(2.) In Crl.A. 1396/2012, the prayers made by Jamadar Ojha, father of the deceased was for setting aside acquittal of Mohini Tiwari, mother in law of the deceased and enhancement of sentence of Rajinder Tiwari and Sanjay Tiwari. Though, in the alternative, charge for offence punishable under Sec. 302 Penal Code was framed against the accused, learned Trial Court convicted Sanjay Tiwari and Rajinder Tiwari only for offence punishable under Sections 498A/304B. No leave to appeal was sought either by the State or Jamadar Ojha against acquittal of Rajinder Tiwari and Sanjay Tiwari for offence punishable under Sec. 302 IPC. Even in respect of challenge to the acquittal of Mohini Tiwari, this Court vide order dated 8th July, 2016 noted that no leave to appeal against acquittal has been sought in Crl.A. 1396/2012 and without seeking leave to appeal, the appeal cannot be entertained against acquittal in terms of the decision of the Supreme Court reported as 2015(15) SCC 613 Satyapal Singh Vs. State of Madhya Pradesh. Thus, Crl.A. 1396/2012 was confined to enhancement of sentence qua conviction of Rajinder Tiwari and Sanjay Tiwari for offence punishable under Sec. 304B Penal Code as for offence punishable under Sec. 498A IPC, Rajinder Tiwari and Sanjay Tiwari were awarded the maximum sentence i.e. imprisonment for a period of three years. As noted above, Sanjay Tiwari died on 2nd March, 2017, thus, Crl.A.1396/2012 is now confined only to the extent of enhancement of sentence of Rajinder Tiwari for offence punishable under Sec. 304B IPC.

(3.) Learned Amicus Curiae for the appellant Rajinder Tiwari challenging his conviction for offences punishable under Sections 304B/498A Penal Code submits that even as per the evidence of the prosecution witnesses it has not been proved that there was any cruelty for demand of dowry. There was no previous complaint alleging demand of dowry or cruelty on that count. Only bald and vague allegations of dowry demand have been made. The marriage between Sanjay Tiwari and the deceased was a low key affair. There is no allegation that either at the time of marriage or prior thereto there was any demand of dowry. The only allegation against Rajinder Tiwari as deposed to by father of the deceased was that some time after the marriage, Tata Sumo Car was demanded so that Sanjay Tiwari could ply the same and earn his livelihood. Further even as per brother of the deceased, the said demand by Rajinder Tiwari was made six-seven months after the marriage. The deceased died after more than 4? years of marriage, thus a demand made four years prior to the date of death cannot be said to be a dowry demand soon before death. Therefore as per the evidence of the prosecution, no demand was made by the appellant soon before the death, thus he cannot be convicted for offence punishable under Sec. 304B IPC. To raise a presumption under Sec. 113B of the Evidence Act, the prosecution is required to substantiate the ingredients of the offence by direct and convincing evidence as held by the Supreme Court in the decision reported as (2017) 1 SCC 101 Baijnath & Ors. Vs. State of Madhya Pradesh and in the absence of prima facie evidence being proved by the prosecution, no presumption can be raised and the appellant was not required to rebut the same. Though the SDM claims that he went to the spot and recorded the statement of witnesses, however, this fact is belied by the prosecution witnesses themselves who stated that SDM never came to the spot and they went to his office where-after he recorded their statements. It is contended that even as per DW-2 and DW-3, the deceased was in her parental home when the incident took place and was brought to the matrimonial home later. Further in his statement under Sec. 313 Cr.P.C, appellant Rajinder Tiwari stated that he was not present at home at the time of incident and was in his godown which fact has been proved by the testimony of DW-5. Learned Trial Court erroneously brushed aside the statement of defence witnesses. Reliance is placed on the decision of Supreme Court reported as (1981) 2 SCC 166 Dudh Nath Pandey Vs. State of Uttar Pradesh and of this Court reported as 2009 SCC OnLine Del 2803 Pradeep Saini & Anr. Vs. State to contend that evidence of defence witnesses is also entitled to the same weightage.