BRIJESH SINGH Vs. STATE

JUDGEMENT

(1.) THE present appeal has been filed under Section 473 of the Code of Criminal Procedure, 1973 (hereinafter referred to as, "Cr.P.C. ") against the judgment dated 15th September, 2004 and order on sentence dated 17th September, 2004 by the appellant No.1, who is the husband of the deceased, and appellant No.2, who is the mother-in-law of the deceased. By virtue of the said judgment, appellant no.1 and 2 were convicted and sentenced to undergo rigorous imprisonment for three years for the offence under Section 498A IPC together with fine of Rs.5,000.00 each and in default of the payment of fine, rigorous imprisonment for another six months. Appellant no.1 was also convicted and sentenced to undergo fourteen (14) years rigorous imprisonment and appellant No.2 was convicted to eight (8) years of rigorous imprisonment for the offence under Section 304 B IPC.

(2.) THE facts of the case, as noticed by the learned Additional Sessions Judge, are that Brijesh Singh, appellant No.1, married Shubha on 30th October, 1990. Customary articles forming dowry were given at the time of marriage. Marriage lasted for about 5 years during which period the couple was blessed with a son. The marriage came to an end on 28th October, 1995 when Shubha committed suicide by hanging herself. The case set up by the prosecution is that the alleged demands of dowry made upon the deceased by her husband and her in-laws as well as the harassment and torture inflicted upon her for non-fulfilment of the demands had driven Shubha to end her life by hanging herself by a ceiling fan in her room. FIR was registered under Section 498A/304B/406 IPC and under Section 6 of the Dowry Prohibition Act. Charge under Section 498A/34 IPC and Section 304B/34 was framed against the appellants herein.

(3.) COUNSEL for the appellants submits that the judgment passed by the learned trial court is illegal and contrary to the material on record as well as the settled principles of law. It is contended that the learned trial court gravely erred in not appreciating that there is no cogent and believable evidence available on record to hold the appellants guilty of the offence under Section 498A or 304 B IPC. It is next contended that the learned trial court failed to take into consideration the fact that basic requirements of Section 304 B IPC were not fulfilled herein. The learned trial court, it is contended, completely lost track of the fact that in order to convict a person under Section 304 B IPC, it was mandatory for the prosecution to prove that soon before death, the deceased was subjected to cruelty or harassment by the appellants for or in connection with any demand of dowry. Counsel contends that in the present case even in the charge sheet there is no allegation regarding any incident about the harassment of deceased soon before she committed suicide. Counsel for the appellants submits that PW- 2, Om Prakash, father of the deceased did not utter a single word nor made any allegation especially against appellant No.2 regarding harassment for demand of dowry. It is contended that none of the witnesses i.e PW-2, Om Prakash, father of the deceased; PW-8, Sumitra, mother; and PW-6, Saraswati, sister of the deceased, in their statements before the police or before the court have alleged any incident of harassment of the deceased by the appellants for and in connection with demand of dowry soon before the occurrence. Learned counsel for the appellants next submits that there are material contradictions between the statements made by the witnesses i.e father, mother and sister of the deceased. Counsel for the appellants submits that the trial court has failed to consider that at the time of occurrence, none of the appellants were present in the house. It is submitted that the complainants did not lodge any complaint for more than 72 hours after the incident. This delay has been unexplained in view of the fact that the incident took place on 28th October, 1995 and the FIR was lodged on 31st October, 1995 when the statement was made to the SDM.