SHIV KUMAR @ SHIVA Vs. STATE

JUDGEMENT

(1.) By judgment dated 7.3.2014 passed in Sessions Case No.11/2010 by the learned Additional Sessions Judge, Churu, the appellants stand convicted and sentenced as below:

(2.) The first informant Ramswaroop P.W.3 submitted a written report Ex.P5 to Shri Nisarkhan Sub Inspector Police Station Kotwali, Churu at the mortuary of the Govt.Bharatiya Hospital, Churu on 9.3.2010 at about 1.40 PM alleging inter-alia that his daughter Smt.Kanta (Sonu) had been married to Shiv Kumar @ Shiva son of Gopi Ram, resident of Churu on 23.11.2009. Soon after the marriage, Shiv Kumar, Gopi Ram and Smt.Maina Devi started demanding more dowry from his daughter. The first informant assured the accused that their demands would be met. However, on numerous occasions, they extended threats that demands be met or else the girl would either be deserted or killed. Two Panchayat were held in Nohar. On 27.2.2010, the complainant sent his daughter to the matrimonial home. On 8.3.2010, she called and complained that her matrimonial relatives were harassing her on account of demand of dowry. On 9.3.2010, the complainant's brother Sushil received a call that his daughter had expired and her dead body was lying in the Bharatiya Hospital. It was alleged that the husband Shiv Kumar, the father in law Gopi Ram and the mother in law had killed Smt.Kanta as their demands for dowry were not met. On the basis of this report, an F.I.R. No.71/2010 was registered at the Police Station Kotwali, Churu for the offences under Sections 498A and 304B I.P.C. and investigation commenced. The site inspection plan etc. of the place of occurrence was prepared. Two pieces of ropes with human hair attached to it were seized. The Panchnama Lash was prepared. Few samples of hair of the deceased were collected from the doctors who conducted post mortem. As per the post mortem report, the cause of death of Smt.Kanta was opined to be ante mortem hanging. The accused appellant Shiv Kumar @ Shiva was arrested and final charge-sheet was filed against him for the offences under Sections 498A and 304B I.P.C. Since Gopi Ram and Maina Devi could not be apprehended, charge-sheet against them was filed under Section 299 Cr.P.C. Later on, these two accused were also arrested and a supplementary charge-sheet was filed against them. The offences being exclusively triable by court of Sessions, both the chargesheets were committed to the concerned Sessions Judge, who consolidated both the cases together. Charges were framed against all the three accused for the offences under Sections 498A, 304B and 302 I.P.C. They pleaded not guilty and claimed trial. The prosecution examined as many as 12 witnesses in support of its case and exhibited 17 documents. Upon being examined under Section 313 Cr.P.C., the accused denied the prosecution allegations and claimed to have been falsely implicated. The accused Shiv Kumar categorically stated that since Smt.Kanta did not get into periods, he pressed upon her to undergo medical examination and on the very same day, she ended her life by hanging herself. The dead body was taken to the hospital and he went to the Police Station to report the matter but his report was not taken and he was arrested. He also stated that only when post mortem was conducted, it came to light that Smt.Kanta was carrying a foetus in her womb. He categorically stated that the deceased was having illicit relations with her brother in law and that the child might have been conceived through him. He further stated that there was no occasion for demanding any dowry from the complainant because they had known from before that the complainant's financial position was very weak and that is why even the expenses of marriage had also been borne by the accused side. The deceased felt embarrassed by having conceived from her brother in law and fearing that her guilt would be exposed, she committed suicide. Four witnesses including the appellant No.1 Shiv Kumar @ Shiva were examined in defence and 9 documents were exhibited. Upon conclusion of the trial, the learned trial Judge proceeded to acquit the accused from the charge under Section 302 IPC and convicted and sentenced them as above. Hence, this appeal.

(3.) Shri Vineet Jain, learned counsel appearing for the appellants vehemently and fervently urged that the case set up by the complainant in the F.I.R. regarding the accused having demanded dowry and having harassed the deceased on this count is totally false and fabricated. No details of the alleged articles demanded by way of dowry have been set out in the F.I.R. The theory regarding the two panchayatis as set out in the F.I.R. is totally false and fabricated. None of the close family members of the deceased including the father Ramswaroop P.W.3, the brother in law Sushil Kumar P.W.4 and the sister Smt.Sunita P.W.9 stated that they were aware regarding the deceased carrying a child in her womb despite the fact that the lady was living in her matrimonial home from middle of December 2009 till end of February 2010. He urged that had the deceased conceived from the appellant No.1 Shiv Kumar @ Shiva, there was no occasion for her to hide her pregnancy from her mother and her sister because it would have been a cause for celebration. The silence of the deceased in this regard was clearly indicative of her guilty mental state and that is why, when the appellant persisted with Smt.Kanta that she should undertake a medical examination, she became apprehensive of her illicit relationship being exposed and she committed suicide by hanging herself in the matrimonial home. He further urged that the theory putforth by the prosecution regarding the appellants having harassed and humiliated the deceased on account of demand of dowry is totally false and fabricated because the accused were aware of the dire financial straits of the father of the deceased well in advance and that is why, the marriage was solemnized at Churu where the accused reside. The expenses of marriage were borne by the accused Gopi Ram which fact was proved and established by the defence witness. DW who exhibited the documents viz. bills of Dharamshala (Agrasen Bhawan) in which, the accused made arrangements for the complainant party to stay. He further urged that the defence proved by leading cogent evidence that the expenses of marriage were borne by the accused Gopi Ram and thus, the allegation set up by the prosecution regarding the accused persons having demanded dowry from the deceased is totally false and fabricated. Apart from the bald allegation of demand of motorcycle and one lac rupees which also is an improved version vis-a-vis the investigational statements of the witnesses, there is no other allegation against the accused of ever having harassed or humiliated the deceased on any count whatsoever and thus, ex-facie, the prosecution case that the accused instigated the deceased to commit suicide by tormenting and maltreating her for demand of dowry is unsubstantiated. He further urged that there is an omnibus allegation of the prosecution witnesses against the accused appellants Gopi Ram and Maina Devi, that they were also involved in the alleged harassment meted out to the deceased on account of demand of dowry whereas, Maina Devi and Gopi Ram hardly had the occasion to interact with the deceased who was living in the paternal home from middle of December 2009. On these grounds, he implored the Court to accept the appeal, set aside the conviction of the appellants.