LALIT KUMAR TIWARI Vs. STATE OF M P

JUDGEMENT

(1.) This appeal was initially preferred by the appellant Lalit Kumar Tiwari and Smt. Manikala (since deceased) being aggrieved by the judgment dated 13.4.1996 passed by the VIIIth Additional Sessions Judge, Jabalpur in ST. No. 43/92 whereby each of them were convicted and sentenced under Section 498A of IPC till rising the court with fine of Rs. 4000/-. In default of depositing the fine SI for four months has been awarded. In pendency of the appeal, on account of death of appellant no. 2 Smt. Manikala till her extent the appeal became abated, hence her name was deleted from the array of appeal memo. So at this stage, this appeal is being decided only in respect of appellant no. 1 Lalit Kumar Tiwari. The facts giving rise to this appeal in short are that the deceased Smt. Vandana Tiwari got married with Vijay Kumar Tiwari, the elder brother of the present appellant on dated 4.7.1987. Subsequent to that while residing in the matrimonial home, she was subjected to cruelty, harassment and torture on account of demand or in connection of dowry by the present appellant and his sister Manikala, for which on her visit to parental home, she also made complaint to her father. Before some days of the alleged incident, in which said Vandana Tiwari had died, her father visited her house. On such occasion he was ousted by the appellants from her residence. In that respect a report was also lodged in the Manila P.S. Subsequent to such report on submitting the apology by the husband of the deceased and on giving some assurance by his family members that they would not commit such act in future, the deceased was sent to her matrimonial home. But there was no change and again Vandana was subjected to aforesaid act of cruelty, harassment and torture by the appellants. On account of such cruelty of the appellant and his sister Smt. Manikala, on dated 8.7.1991 she by pouring kerosene on herself, set fire, consequently she sustained burnt injuries, on which she was taken to Victoriya Hospital where her two dying declarations were recorded.. During the course of treatment, she succumbed to burnt injuries. On receiving such information an inquest report was registered at P.S.. Belbagh, District Jabalpur. In its enquiry, after preparing the spot map, seizure memo of the articles found on the spot and the memorandum of dead body in presence of the witnesses, the dead body was sent to hospital where its autopsy was carried out. According to postmortem report she died due to ante-mortem burnt injuries. In further enquiry of the inquest, on establishing prima facie circumstances against the appellants for the offence of Section 304B/ 34 of IPC, a crime for such offence was registered against the appellant and his deceased sister, Manikala on dated 11.8.1991 at P.S. Belbagh, District Jabalpur. In investigation, the interrogatory statements of the witnesses were recorded and appellant and his sister were arrested. On completion of the investigation, they were charge sheeted for the offence of Sections 304B, 302/ 34, 498A of IPC and section 4 of the Dowry Prohibition Act. After committing the case to the Sessions Court, on framing the charges of Section 498A, 302 in alternate of Section 304B of IPC against Smt. Manikala while charge of Section 498A and 304B/ 34 of IPC against the present appellant, they abjured the guilt. On which the trial was held. On appreciation of the evidence, the appellants were acquitted from the charge of Section 302 and 304B/ 34 of IPC while each of them was held guilty for the offence of Section 498A of IPC and punished with the above mentioned punishment, on which the appellants came to this court with this appeal. In pendency of the same on account of death of the appellant no. 2 her name has been deleted from the record. So this is being adjudicated only till the extent of appellant no. 1.

(2.) Shri P.N. Dubey with Shri Praveen Dubey, learned appearing, counsel for the appellant after taking me through the record of the trial court including the evidence led by the parties alongwith the exhibited papers of the charge sheet argued that on appreciation of evidence, after extending acquittal to the appellant from the charge of Section 304B/ 34 of IPC, on the basis of the same evidence, there was no occasion before the trial court to convict the appellant under Section 498A of IPC. In continuation he said that on taking into consideration the version of both dying declaration of the deceased, i.e. Ex. P-3 and Ex.P-8 as accepted in its entirety, even then the ingredients of offence of Section 498A of IPC are not made out against the appellant. For the sake of arguments, if the allegation of the subsequent dying declaration, (Ex. P-8) is minutely examined, then it is apparent that some of the allegations were made only against deceased-appellant no. 2 Manikala and not against the present appellant. In continuation he said that in initial dying declaration, (Ex.P-3) recorded by ASI, (Police), Shri S.K. Shukla, (PW-1) at 10:45 in the morning immediately after reaching Vandana to hospital, she had not made any allegation of cruelty, harassment or torture against the appellant or any other person. The subsequent dying declaration (Ex.P-8) was also recorded in the hospital by the Executive Magistrate, Shri A.G. Jain (PW-13) at 8.55 PM on the same day, on which Ex. P-3 was recorded. He further said that if any inconsistency is found between aforesaid two dying declaration, then the version stated by the deceased in the earlier dying declaration should be relied on because that was made by the deceased immediately after the incident. On relying on the same, the appellant could not have been convicted by the trial court under Section 498A of IPC. In continuation he said that father and brothers of the deceased-namely Radhika Prasad Dubey, Damendra Kumar and Basant Kumar, on recording their depositions did not state any particular incident alongwith the date, time and place, on which any cruelty was committed by the appellant on the deceased. On the contrary as per deposition of Basant Kumar before some years from the date of alleged suicide of Vandana and soon after marriage of the present appellant in the year 1989, the family of the deceased alongwith her husband and the appellants were separated. So subsequent to such separation, there was no occasion to do or commit any act of cruelty by the appellant with the deceased. In support of such contention he also placed his reliance on examined defence witnesses namely Girish Kumar Sahu (DW-1), Bhagwan Das, (DW-2) and husband of the deceased Vijay Kumar Tiwari, (DW-3). With these submissions, he prayed to set aside the impugned conviction and extending the acquittal to the appellant by allowing this appeal.

(3.) On the other hand, responding the aforesaid arguments Shri P.K. Chourasiya, learned PL by justifying the impugned conviction and sentence of the appellant said that same being based on proper appreciation of evidence do not require any interference at this stage. He further said, that in the available factual matrix the trial court has not committed any error in relying on the subsequent dying declaration, (Ex.P-8) of the deceased, recorded by the Executive Magistrate. In continuation he said that the version of such dying declaration is also supported by the witnesses examined from the parental family of the deceased. However, he fairly conceded that the defence witness, Vijay Kumar Tiwari, (DW-3), the husband of the deceased in his deposition categorically stated that before the alleged incident he and his brother the appellant were separated and residing separately and prayed for dismissal of this appeal.