BHANWAR LAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) HEARD the counsel for the accused-appellant and the complainant as also the learned Public Prosecutor.

(2.) MR . S.S. Sunda, appearing for the accused-appellant submits that the deceased, Subhita, was married to the accused-appellant, Bhanwar Lal, on 03.05.2006 and died on 30.10.2010. Counsel submits that the report of the incident was lodged in writing on the same day by the father of the deceased one Thavar Mal. It is submitted that in the said report, which transformed into FIR also dated 30.10.2010, a general omnibus allegation with regard to the demand of dowry against twelve persons has been made and no specific allegation whatsoever was made against the accused-appellant. Counsel submits that the case set up by the prosecution was not of suicide by the deceased, Subhita, but her murder. It is submitted that in the complainant's statement recorded under Section 161 Cr.P.C. on 01.11.2010, the allegation was however made that the accused-appellant on return from Iraq, where he was employed, went to fetch his wife, but the complainant had refused to send the deceased with the accused-appellant on account of certain routine domestic disagreements at the matrimonial home with her in-laws. It is submitted that the prosecution has also taken a contradictory stand with regard to the happenings when the accused-appellant went to fetch his wife after return from Iraq. Counsel submits that an allegation has also been made that the accused-appellant had demanded Rs.5,000.00 while it was the complainant's case that the father of the deceased had refused to send the deceased with the accused-appellant on account of her certain disagreements in the matrimonial home with her brothers-in-law, their wifes and parents-in-law. It is submitted that the two contradictory reasons aforesaid could not co-exist. Counsel further submits that subsequently, in the statement before the court in the course of trial, an improvement was made and a demand for 50,000.00 was attributed to the accused-appellant about a week before the incident on 30.10.2010. It is submitted that the convictions under the provisions of Sections 304B and 498A IPC are not to be "vending machine ", convictions whereunder on mere allegation, the trial court should find the accused guilty without a critical gaze at the prosecution evidence. It is submitted that from a critical and proactive evaluation of the evidence on record, it would have been evident that the accused-appellant, a 30 years young man and working at Iraq, was likely have adequate funds and while seeking out his wife out from her father's home on his return, would most likely – in the course of normal human conduct – not make any monetary demand. It is submitted that the improvement in the case of the prosecution witnesses in court raising the amount demanded to Rs.50,000.00 as against the demand for Rs.5,000.00 in the statement under Section 161 Cr.P.C. makes the prosecution case extremely suspect and unreliable and indicates its anxiety to somehow fix the accused-appellant for criminal liability. Counsel submits that aside from the interested witnesses i.e. the father of the deceased, brother of the deceased and the mother of the deceased, no independent witnesses were named, nor the any witness living in the neighbourhood of the matrimonial home of the deceased examined. It is submitted that vindictiveness of the complainant is also apparent from the fact that general omnibus allegations were made against the twelve persons of the family in the FIR but the police itself found that the allegation were substantively false against ten of them and did not even challan them. It is further submitted that subsequently an application under Section 190 Cr.P.C. moved by the complainant before the trial court to have them arrayed as accused which was also dismissed. Counsel further submits that the prosecution witnesses were unreliable in failing to disclose as to from where the complainant, a mere daily wager earner and without a regular job, had obtained Rs.30,000.00 allegedly given to the accused-appellant as demanded a few days before the incident.

(3.) HAVING heard the counsel for the accused-appellant and the complainant as also learned Public Prosecutor, who has no doubt supported the counsel for the complainant in pleading that the application for suspension of sentence be dismissed and taking into consideration the overall facts and circumstances of the case, but without expressing any opinion on merits or demerits of the appeal, I would exercise the discretion of this Court in the facts of the case by allowing this application for suspension of sentence.