MAHESH Vs. STATE OF U.P.

JUDGEMENT

(1.) Criminal Appeal No. 4273 of 2013 (Mahesh Vs. State of U.P.) as well as Criminal Appeal No. 3789 of 2013 (Ramesh Chandra and Another Vs. State of U.P.), have been filed under Section 374(2) of Cr.P.C. against judgment of conviction and sentence made therein, by Court of Special Judge SC/ST Act, Farrukhabad, in Sessions Trial No. 50 of 1993 (State vs. Mahesh and others) arising out of Case Crime No. 71 of 1992, under Sections 498-A, 304-B I.P.C. read with Section 3/4 of D.P. Act, Police Station Merapur, District Farrukhabad, dated 1.8.2013, wherein trial Judge has convicted appellants and sentenced with three years rigorous imprisonment and fine of Rs. 1,000/-, in default one month simple imprisonment under Section 3 of D.P. Act, with further imprisonment of one year rigorous imprisonment and fine of Rs. 500/-, in default 15 days additional simple imprisonment under Section 4 of D.P. Act, with further imprisonment of three years rigorous imprisonment and fine of Rs. 1,000/-each, in default one month additional simple imprisonment under Section 498-A I.P.C., with ten years rigorous imprisonment under Section 304-B I.P.C., with a direction for concurrent running of sentences and adjustment of previous imprisonment, if any. Both of the criminal appeals have been filed against one and common judgment of conviction and order of sentence as above, arising out of one and common case crime number in one and common session trial. Hence, these appeals were consolidated together and are being decided together.

(2.) Memo of appeal briefly contends that impugned judgment is against the evidence placed on record. Sentence was deterrent and excessive. Trial Judge failed to appreciate evidence of PW-1, PW-2, PW-3 and PW-7. It was only PW-1, who in his cross-examination, has said about cruelty, whereas in testimony of PW-2, no evidence of demand or cruelty with regard to it, was there. PW-3, in his cross-examination, has admitted marriage to be performed in cordial atmosphere. It was without any demand of dowry, though he had heard fire shot, but his testimony is not against the appellants. PW-7, Shiv Ram Singh, is real brother of deceased Rooma Devi and has said about his information with regard to demand of dowry. The single testimony of PW-1, was against the appellants. But owing to his death, after a part of cross-examination, he could not be cross-examined by defence counsel. Hence, his evidence is not admissible. Appellants were having their separate living. There was proof of "Rashan card" of them. But it was not taken into consideration, because of being photocopy of same. Appellants as well as informant were members of poor family, no question of demand of dowry ever arisen. Appellants were not present at their home at the time of occurrence. Deceased was murdered by some anti-social elements. She was all alone inside the house. Someone did this offence. But appellants were falsely implicated, whereas they were at field at their work, where they got information of this happening, they rushed on spot, they informed informant side, even then they were falsely implicated in this case crime number. Deceased was given love and affection. No cruelty was ever caused to her. Even, she was educated with the help of her husband and she had appeared in High School Examination, before this occurrence. On the basis of same set of evidence, accused Kishan Lal was acquitted, rest were convicted and sentenced as above. Convict Smt. Shanti Devi, died and her appeal stood abated. No specific allegation, as against any of convict-appellants, is there. Rather a general allegation of demand of dowry was leveled against each, whereas appellant Ramesh Chandra and Om Pal were having separate living. Case could not be proved beyond reasonable doubt, even then, judgment of conviction was passed and after hearing over quantum of sentence, highly excessive and deterrent sentence was awarded. Hence, this appeal with prayer to set aside impugned judgment of conviction and sentence made therein with further prayer for award of acquittal in it.

(3.) Perusal of record of lower Court reveals that First Information Report Ex.Ka-1, scribed by Jograj Singh and signed by informant Babu Ram, was submitted at police Station Merapur at 1.6.1992, with this contention that informant's daughter Rooma Devi was married on 5.6.1990 with Mahesh, son of Jado, R/o Deosni, District Farrukhabad. Dowry, as per capacity, with a cash and goods amounting to Rs. 40,000/-, was paid. Even then, in-laws were not satisfied with it and they were demanding additional dowry of scooter with golden chain. Informant's son, Shiv Ram, had gone to the house of Rooma Devi, on 25.5.1992, for bringing her back. When in-laws asked that unless scooter, golden chain with ring is not being fulfilled, she will not be permitted tp be at her parental house. Rooma Devi, was frequently being tortured, for which she complained to her parents and brother. She narrated it to her brother Shiv Ram, under weeping and owing to this demand of dowry, she was killed by firearm shot at her nuptial home at about 11:30 A.M., on 1.6.1992, by her husband Mahesh, brothers-in-law Ramesh Chandra, Kishan Lal and Ompal and mother-in-law Shanti Devi. This occurrence was informed by Kripal Singh, son of Jawahar Lal, R/o Police Station Deosni, District Farrukhabad. Informant, along with his family members, rushed at the place of occurrence and found her daughter dead. A tamancha of .315 bore was lying there. She was having wound of firearm shot over her abdomen. Upon his written report Ex.Ka-1, Case Crime No. 71 of 1992, under Section 498A, 304-B I.P.C. read with Section 3/4 of D.P. Act was got registered, at police Station Merapur, District Farrukhabad, on 2.6.1992 against Mahesh, Kishan lal, Ramesh Chandra, Ompal, Smt. Shanti Devi, vide Chick F.I.R. Ex.Ka-3, by way of entry in General Diary of police station Ex.Ka-4. This was investigated, wherein, inquest proceeding Ex.ka-7, with concerned police forms photo dead body Ex.Ka-9, letter to C.M.O. Ex.Ka-8, Police Form-13 Ex.Ka-10, Letter to R.I. Paper No. 12-A, were got prepared. Plain soil and blood stained soil was taken from the spot by way of recovery memo, Ex.Ka-5. Dead body was put under seal with preparation of specimen seal and it was handed over, along with those documents, to Constable Arvind Singh and Homeguard Shishu Pal for taking it to mortuary for its autopsy examination. It was examined under autopsy examination and the autopsy examination report Ex.Ka-2 was got prepared by Medical Officer. Empty tamancha of .315 bore, having empty cartridge in its barrel, were taken in possession, for which recovery memo was got prepared, it was kept under seal and on the basis of its presentation, case crime number 71 of 1992, under Section 25/27 of Arms Act was got registered at above police station. Site map Ex.Ka-11 was got prepared by Investigating Officer and after investigation of same, charge-sheet Ex.Ka-12 was filed against Mahesh, Kishal Lal, Ramesh Chandra, Ompal and Shanti Devi for offences punishable under Section 498-A, 304-B I.P.C. read with Section 3/4 of D.P. Act. Magistrate took cognizance over it and as the offence was exclusively triable by Court of Sessions, hence, it was committed to Court of Session.