Rajasthan High Court - Jodhpur
Prem Raj vs State on 24 April, 2019
Bench: Sandeep Mehta, Vinit Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 131/2011
Akhe Raj S/o Prem Raj, by caste Sonar, R/o Bapini, Tehsil
Ossian, District Jodhpur. (Lodged at Central Jail Jodhpur)
----Appellant
Versus
State of Rajasthan
----Respondent
Connected With
D.B. Criminal Appeal No. 130/2011
Prem Raj S/o Lalu Ram, by caste Sonar, R/o Bapini, Tehsil
Ossian, District Jodhpur. (Lodged at Central Jail Jodhpur)
----Appellant
Versus
State of Rajasthan
----Respondent
For Appellant(s) : Mr.Nishant Bora.
Mr.Arpit Mehta.
For Respondent(s) : Mr.N.S.Bhati, P.S.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR
JUDGMENT
Date of Reserve : 09.04.2019
Date of Pronouncement : 24.04.2019
BY THE COURT : (PER HON'BLE MEHTA,J.)
The instant two appeals have been preferred by the accused- Akheraj and Premraj for assailing the judgment dated 27.1.2011 passed by the learned Additional Sessions Judge (Fast Track) No.1, Jodhpur in Sessions Case No.88/2009 whereby, they have been convicted and sentenced as below:
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(2 of 14) [CRLA-131/2011]
For offence under Section For offence under
498A I.P.C. Section 304B I.P.C.
Akheraj 3 years' rigorous imprisonment & Life imprisonment.
fine of Rs.2000/-, in default of
payment of fine, to further
undergo 2 months' additional
rigorous imprisonment.
Premraj 3 years' rigorous imprisonment & 7 years' rigorous
fine of Rs.2000/-, in default of imprisonment.
payment of fine, to further
undergo 2 months' additional
rigorous imprisonment.
Brief facts relevant and essential for disposal of the appeal are noted hereinbelow.
Asuram Soni P.W.1 lodged a written report (Ex.P1) at the Police Station Osian on 14.5.2009 at 1 PM alleging inter-alia that his sister Chukidevi was married to Akheraj Soni, the appellant herein resident of Bapini, Osian about a year and half back. After the marriage, Akheraj and his family members used to traumatize and harass the girl on account of demand of dowry. His sister conceived and had a pregnancy of six months despite which, she was beaten on which, she suffered miscarriage. After this incident, the informant brought his sister back to his house. Two months later, Akheraj came, apologized and assured that he would not treat the deceased with cruelty in future and saying so, he took Chukidevi back to his house. On 14.5.2009, Hari Singh s/o Kishore Singh resident of Bapini called on phone and informed that his sister resident of Bapini had been killed and that Police has reached the place of incident. On receiving this information, Asuram collected his relatives and reached Bapini. He saw his sister lying dead with deep wounds all over her body and nail abrasions on her neck. He alleged that his sister had been beaten (Downloaded on 28/06/2019 at 12:23:28 AM) (3 of 14) [CRLA-131/2011] to death by Akheraj, Premraj, Banshi Lal, Premraj's wife Madudevi, wife of Banshi Lal, Puna Ram S/o Premraj. On the basis of this report, an F.I.R. No.102/2009 was registered at the Police Station Osian for the offences under Sections 498A and 304B I.P.C. Since the offence under Section 304B I.P.C. was Sessions triable, the case was committed and transferred to the court of the learned Additional Sessions Judge (Fast Track) No.1, Jodhpur for trial.
The trial Judge framed charge against the accused for the above offences. They pleaded not guilty and claimed trial. The prosecution examined as many as 11 witnesses and exhibited 25 documents in support of its case. Upon being questioned under Section 313 Cr.P.C. and when confronted with the allegations of the prosecution, the accused denied the same. They claimed that the relationship was in the nature of Aata-Sata marriage and thus, there was no question of demanding dowry in such a relationship. Umadevi daughter of Premraj, who was married in the complainant's family was of tender age and thus, was not being sent to the matrimonial home. The parties had a panchayati over this dispute. They were attempting to send Chukidevi in Nata to another family whereas, she was not desirous of going. She called Akheraj and asked him to take her away to Bhinmal. On this, Akheraj came to Jodhpur and got the affidavits executed and then took Chukidevi to Bhinmal. She was terrorized because of the activities of her maternal relatives and their attempt to send her in Nata and thus, she ended her life. Three witnesses were examined and six documents were exhibited in defence. After hearing the arguments advanced by the learned counsel for the parties and (Downloaded on 28/06/2019 at 12:23:28 AM) (4 of 14) [CRLA-131/2011] after appreciating the evidence available on record, the learned trial Judge proceeded to convict and sentence the appellants as above. Hence, this appeal.
Shri Nishant Bora learned counsel representing the appellants vehemently and fervently urged that the entire prosecution case is false and fabricated. Umadevi the daughter of the appellant Premraj was married to the first informant Asuram whereas, Asuram's sister Chukidevi the deceased was married to the appellant Akheraj on 25.10.2007. As per him, since the relations were in the nature of Aata-Sata marriage, there was no question of there being any demand of dowry being made by anyone from either of the parties. He urged that the entire prosecution case regarding the accused having harassed and humiliated the deceased on account of demand of dowry is false, fabricated and cooked up. As a matter of fact, the dispute between the parties has arisen because the accused Premraj was not sending his daughter Umadevi to her husband Asuram the first informant owing to her tender age. The complainant party were pressuring hard that the girl should be sent. The dispute got out of hand and the complainant party took Chukidevi back to their house. However, Chukidevi was not happy at her father's house and thus, she called Akheraj and requested that she should be taken back to the matrimonial home. On this, Akheraj came down to Jodhpur on 11.12.2008, took Chukidevi back to Bhinmal. However, Chukidevi's maternal relatives, coming to know of these events, persistently pressurized her to return to their house and being perturbed by this undue pressure and trauma, she ended her own life. He urged that the prosecution evidence even if it (Downloaded on 28/06/2019 at 12:23:28 AM) (5 of 14) [CRLA-131/2011] accepted to be true at its highest, lacks in material particulars regarding the allegations of harassment to the girl on account of demand of dowry "soon before her death" and thus, as per him, the conviction of the accused for the offences under Sections 498A and 304B I.P.C. cannot be sustained. He further urged that even if the contrived prosecution allegations are accepted as such, then also apparently, the deceased had been taken back by the accused in the month of December 2008. She ended her life in matrimonial home by hanging herself from a noose on 14.5.2009 and that there is no allegation of the prosecution that in this significant interval of five months, the deceased ever called or complained to the complainant or any of his family members that the accused were persisting with their cruel behaviour or any demand of dowry was being made from her. He thus urged that there is total lack of evidence on the record to establish that the accused harassed or humiliated Smt. Chukidevi on account of demand of dowry soon before her death so as to justify the impugned judgment which as per Shri Bora is based on sheer conjectures and surmises and is liable to be quashed and set aside. He particularly referred to the following admissions appearing in the cross-examination of Asuram:
"esjh 'kknh izsejkt dh yM+dh ds lkFk gqbZ gS] tks vkeus lkeus gqbZ gSA esjh "kknh lkFk lkFk gh gqbZ Fkh tks 1&2 fnu NksM+dj gh gqbZ FkhA ;g ckr lgh gS fd "kknh gksus ds ckn esa viuh iRuh dks xkao ysdj ugha vk;k FkkA D;ksafd u mu yksxksa us gekjs lkFk /kks[kk fd;k Fkk] og NksVh Fkh vkSj mUgksaus dgk fd ckn esa Hkst nsaxsA"
";g dguk xyr gS fd esjh cgu pqdh nsoh dh "kknh nwljh txg ij jgs gksA ;g dguk lgh gS fd pqdh nsoh dks v[ksjkt esjs cguksbZ jes"k ds ;gka ls ysdj x;k FkkA ;g ckr lgh gS fd mlds ckn esjh cgu vius ihgj ugha vkbZ FkhA ;g ckr lgh gS fd mlds ckn esjh esjs cgu ls ckr Hkh ugha gqbZ FkhA"
";g dguk lgh gS fd cgu ds lkFk gqbZ ekjihV vkSj ngst dh ekax dh Fkh] og esjh cgu ds vkf[kjh ckj llqjky tkus ds igys dh ckr (Downloaded on 28/06/2019 at 12:23:28 AM) (6 of 14) [CRLA-131/2011] gSA mlds ckn esjh ckr esjh cgu ls ,d nks ckj gqbZ Fkh] mlds ckn Qksu vkus cUn gks x, FksA"
"ngst de nsus dh ekax dh Fkh] fdlh pht dh ekax ugha dh FkhA"
and urged that from these categoric admissions made by the witness, the defence theory that the deceased was never harassed on account of demand of dowry is proved and probablised beyond doubt and it is also established that the entire dispute between the parties was in relation to the hesitation of the accused party in sending Umadevi daughter of Premraj to the matrimonial home with the first informant. He also drew the Court's attention to the following admissions made in the statement of Idanam @ Aduram P.W.2 the father of the deceased:
"pqdh nsoh dks 'kknh ds ckn llqjky Hkstk vkSj mlds 10&15 fnu ckn mldks ysdj vk, FksA ;g ckr lgh gS fd vklw jke dh iRuh meknsoh NksVh gksus ds dkj.k vfHk;qDrx.k ugha Hkstrs FksA ;g ckr lgh gS fd bl ckr dks ysdj iapk;r gqbZ Fkh tks esjs ?kj igyh ckj vkSj ckn esa vfHk;qDr ds ?kj ij gqbZ FkhA vafre iapk;r vklksn ekg esa gqbZ Fkh] oS'kk[k esa esjh csVh ejh FkhA Hkkyw esa tc iapk;r gqbZ ml le; lq[kkjke] dkuflag] lR;ukjk;.k lqukj] lR;ukjk;.k dk Hkrht ftldk uke ;kn ugha] vkfn dkQh yksx Fks tks yxHkx 30&40 yksx Fks lcds uke eq>s irk ughaA ;g iapk;r ekg vklksn esa gqbZ Fkh] ;g ckr lgh gS fd mlds ckn esjh csVh pqdh nsoh esjs taokbZ jes"k ds lkFk tks/kiqj pyh xbZ FkhA lHkh iapk;r esa jes"k th ds lkFk esa Fks] gM+eku Hkh lkFk esa FkkA ;g dguk xyr gS fd vklksn ekg ds ckn pqdh nsoh eq>s ugha feyh gks] Lo;a dgk fd eSa ekg esa 16 ckj tks/kiqj vkrk Fkk ml le; pqdh nsoh eq>ls feyrh FkhA"
He also drew the Court's attention to the following admissions made in the statement of Smt. Pappu Devi P.W.10 the mother of the deceased:
"esjs csVs vklqjke dh "kknh Hkh cygw xkao es gks j[kh gSA igys okyh vklqjke dh "kknh NksM+dj ckn esa ckfiuh "kknh dhA ;g ckr lgh gS fd vklqjke dh iRuh mek nsoh dks gekjs ;gka ugha Hkstrs FksA eSa esjh csVh pqdh nsoh dks llqjky Hkstrh FkhA ;g ckr lgh gS fd ugha Hkstus dh ckr ij iapk;r gqbZ FkhA"
";g ckr lgh gS fd /kkiw vkSj jk/kk dk fookg iwoZ esa ikapqMh xkao esa gks j[kk FkkA ;g ckr lgh gS fd mlds ckn mudk ukrk fookg dj fn;k gSA ;g eq>s ugha irk gS fd /kkiw vkSj jk/kk ds ifr thfor jgrs gq, bu nksuksa dk fookg nwljh txg dj nh gksA ;g ckr lgh gS fd tc pqdh nsoh lekIr gqbZ] mlds 7&8 ekg igys og gekjs ;gka ls jes"kth ds ikl pyh xbZ FkhA ;g ckr lgh gS fd og jes"k ds ;gka ls v[ksjkt ds ?kj pyh xbZ Fkh D;ksafd v[ksjkt ogka (Downloaded on 28/06/2019 at 12:23:28 AM) (7 of 14) [CRLA-131/2011] ij vk;k Fkk vkSj mlus dgk fd vc eSa dwVekj ugha d:axkA ;g ckr lgh gS fd mlds ckn pqdh nsoh eq>ls ugha feyh] Lo;a dgk fd mlds ckn mldh yk"k gh vkbZA"
and urged that the panchayat which was held between the parties was in relation to the non-sending of Smt. Umadevi to the matrimonial home. He also referred to the statement of Ramesh Kumar P.W.3 brother in law of the deceased (Bahnoi), who in his cross-examination admitted that Premraj and Asuram never told him that they were dissatisfied with the dowry given in the marriage. He also referred to the statement of Hadman P.W.5 and urged that had there been any truth in the prosecution theory that the deceased was being harassed and humiliated by the accused owing to demand of dowry, then the complainant party would definitely have raised this issue in the panchayati. He also referred to the statements of Ghewarchand P.W.6, uncle of the deceased; Chukidevi; and Smt. Pappu Devi P.W.10, being the mother of the deceased Chukidevi. He further urged that the allegations levelled by the principal prosecution witnesses Asuram P.W.1, Idanam @ Aduram P.W.2, Ramesh Kumar P.W.3, and Hadman P.W.5 in their examination-in-chief that the deceased was being harassed and humiliated in the matrimonial home owing to demand of dowry are all in the form of improvements and all of them admitted in their cross-examination that the daughters of Idanam @ Aduram all contracted second marriages while their earlier marriages were subsisting. He contended that if at all, the deceased was dissatisfied and was feeling harassed in the matrimonial home, then there was no occasion for her to leave her brother in law Ramesh's home and go to the matrimonial home with the appellant Akheraj. He urged that the girl was absolutely happy (Downloaded on 28/06/2019 at 12:23:28 AM) (8 of 14) [CRLA-131/2011] and satisfied in the matrimonial home and that is why, she voluntarily called Akheraj and went with him after executing an affidavit. He thus, urged that these embellished statements cannot be relied upon so as to affirm the guilt of the accused. He thus implored the Court to accept the appeals, set aside the impugned judgment and acquit the accused of the charges.
Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the appellants' counsel. He urged that the deceased was a young girl of tender age. She was married to the appellant Akheraj on 25.10.2007. She was continuously harassed and humiliated in the matrimonial home on account of demand of dowry. The harassment exceeded all bounds and the girl was even assaulted while she was carrying a pregnancy due to which, she suffered a miscarriage. Ultimately, she could not tolerate the cruelty meted out to her and returned to her father's house. While she was living with her brother in law Ramesh P.W.3, the accused Akheraj approached and pleaded that she would not be maltreated again on which she pardoned the earlier excesses meted out to her and agreed to go with him. However, the mal-treatment continued after the deceased had been taken back to the matrimonial home and once again, she was harassed and humiliated owing to demand of dowry to such extent that she had no option but to end her life. He urged that the evidence of the prosecution witnesses is absolutely natural, trustworthy and worth belief and hence, as per him, the learned trial Judge was perfectly justified while convicting and sentencing the appellants as above by the impugned judgment. As per him, (Downloaded on 28/06/2019 at 12:23:28 AM) (9 of 14) [CRLA-131/2011] the impugned judgment suffers from no infirmity whatsoever and does not warrant interference.
We have given our thoughtful consideration to the arguments advanced at the Bar and have gone through the material available on record.
Certain facts are admitted from the evidence of the parties:
• That the deceased Smt. Chukidevi was married to the accused appellant Akheraj on 25.10.2007 and by way of cross-relations in an Aata-Sata marriage, sister of the accused Akheraj was married to Umadevi the first informant Asuram.
• That Umadevi was not being sent to the matrimonial home because of her tender age. The complainant party was pressurizing the accused to send the girl and owing to this dispute, a panchayat was arranged. However, in this panchayat, no issue was raised that Chukidevi was being maltreated in the matrimonial home on account of demand of dowry.
• That despite these panchayat proceedings, Umadevi was not sent with her husband Asuram and it appears that as a fall out of the panchayat conducted for this purpose, the deceased Smt. Chukidevi was taken back to live at her matrimonial home. In the month of December 2008, Chukidevi was at her brother in law Ramesh's home when the accused Akheraj approached her without involving any of the matrimonial relatives. Chukidevi took the decision of going to matrimonial home with her husband Akheraj and an (Downloaded on 28/06/2019 at 12:23:28 AM) (10 of 14) [CRLA-131/2011] affidavit was executed between Chukidevi and the accused Akheraj while taking this step. In this affidavit, which was exhibited by the defence as Ex.D1, there is no reference whatsoever to any harassment or maltreatment having been meted out to Smt. Chukidevi at the matrimonial home. Admittedly, no witness from the complainant side met Smt. Chukidevi in person after this step. However, she definitely talked with her matrimonials on phone. In none of these conversations did she make a complaint that the accused had reindulged in cruel behaviour with her on any count whatsoever.
• The prosecution witnesses have admitted the defence theory that sisters of the deceased remarried during their subsisting marriages and thus, the contention of the defence counsel that there was no compulsion on the deceased to continue her relationship with the accused Akheraj and if she so desired, she could have taken the same step of remarrying/contracting Nata with another man as her sisters had done.
• Manifestly despite Smt. Chukidevi having been taken back to the matrimonial home in the month of December 2008, the accused did not relent regarding their hard stand and Umadevi daughter of the appellant Premraj was not sent to the matrimonial home on the plausible and valid ground that she was of tender age.
Keeping the above admitted facts in mind, we have carefully sifted through the material prosecution witnesses namely Asuram P.W.1 the first informant and the brother of the deceased (Downloaded on 28/06/2019 at 12:23:28 AM) (11 of 14) [CRLA-131/2011] Chukidevi, P.W.2 Idanam @ Aduram her father, P.W.3 Ramesh her brother in law, P.W.5 Hadman another brother in law of the deceased. All these witnesses admitted the above set of circumstances which have been noted by us. The most significant circumstance amongst them being that the panchayati which was held between the parties was purely in relation to the resistance shown by the accused in sending Umadevi with her husband the first informant Asuram. If at all there had been an iota of truth in the prosecution theory that the accused were indulging in harassing or humiliating the deceased on account of demand of dowry, then their first endeavour in these panchayatis would have been to make a complaint to this effect. The fact that no such complaint was made brings the claim of the prosecution witnesses that the deceased Smt. Chukidevi was being harassed and humiliated in the matrimonial home on account of demand of dowry under a grave cloud of doubt. From the statements of the witnesses referred to supra, it is also clear that they had virtually no direct contract whatsoever with Chukidevi during the period of about five months after December 2008 when she went with accused Akheraj while she was living with her brother in law Ramesh. If at all, the complainant party was concerned that Smt. Chukidevi was being harassed and humiliated in the matrimonial home on account of demand of dowry and that she had gone away with the accused without taking them into confidence, then their natural reaction should have been to immediately contact her and if not then at least to remain in touch with her so as to take a stock of her well being. P.W.1 Asuram and P.W.5 Hadman have admitted that during this period, they talked to the deceased on (Downloaded on 28/06/2019 at 12:23:28 AM) (12 of 14) [CRLA-131/2011] phone. However, there is no allegation whatsoever in the written report (Ex.P1) that while at the matrimonial home during the period between December 2008 to May 2009, the deceased ever made any complaint that she was being harassed or humiliated on account of demand of dowry. Thus, we have no hesitation in holding that the case set up by the prosecution witnesses in their evidence that the deceased Smt. Chukidevi was harassed and humiliated in the matrimonial home on account of demand of dowry and that she ended her life because of this cruelty meted out to her by the accused, has not been proved beyond all manner of doubt and to the satisfaction of the Court. As a matter of fact, the dispute between the parties was clearly on account of the resistance of the accused party in sending Umadevi daughter of Premraj with her husband the first informant Asuram and because of this dispute, the parties indulged into panchayat. However, the result thereof was not fruitful. The deceased took a conscious decision for her future and decided to go to the matrimonial home for living with her husband the appellant Akheraj. None from the complainant side took any measures to ensure the well being of the girl at the matrimonial home between the period starting from December 2008 till May 2009 when Smt. Chukidevi ended her life at the matrimonial home by hanging herself. Since there was hardly any contact of any of the matrimonial relatives with the deceased, manifestly there was no satisfactory evidence on the record to show that during this period, the deceased was harassed or humiliated on account of demand of dowry. Otherwise also, since we have held that the theory put-forth in the evidence of the prosecution witnesses that the deceased was being harassed and (Downloaded on 28/06/2019 at 12:23:28 AM) (13 of 14) [CRLA-131/2011] humiliated in the matrimonial home on this count is unsubstantiated, manifestly, this charge has to fail. As per the statement of the medical jurist P.W.9 Harish Kumar, no external injuries were noticed on the body of the deceased. He prepared the post mortem report Ex.P.11 and while conducting post mortem, no external injuries were noticed on the dead body. In view of these facts, we are of the firm opinion that the charge attributed to the accused appellants that they harassed and humiliated the deceased Smt. Chukidevi at the matrimonial home on account of bringing less dowry and more particularly soon before her death, so as to sustain the charge framed against the accused for the offence under Section 304B I.P.C. Likewise, considering the fact that the basic dispute between the parties was over the issue of the accused Premraj not sending his daughter Umadevi with the first informant Asuram, manifestly, the allegation that Smt. Chukidevi was treated with cruelty at the matrimonial home, cannot be accepted.
In view of the discussion made hereinabove, we are convinced with the arguments advanced by the defence counsel that the prosecution failed to establish the fact that the deceased Smt. Chukidevi was harassed or humiliated in the matrimonial home on account of demand of dowry.
As a consequence, we have no hesitation in holding that the findings recorded by the learned trial court in the impugned judgment that the prosecution proved the charges attributed to the accused by evidence which can be considered to be convincing and reliable are unsustainable.
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(14 of 14) [CRLA-131/2011] Hence, we accept the appeals, set aside the impugned judgment dated 27.1.2011 passed by the learned Additional Sessions Judge (Fast Track) No.1, Jodhpur in Sessions Case No.88/2009 and acquit the accused of the charges. The accused Premraj is already on bail. His bail bonds are discharged. The accused Akheraj is in custody. He shall be released forthwith if not wanted in any other case.
However, keeping in view the provisions of Section 437-A CrPC, the accused appellant is directed to furnish a personal bond in the sum of Rs.15,000/- and a surety bond in the like amount before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of a Special Leave Petition against the present judgment on receipt of notice thereof, the appellant shall appear before the Supreme Court.
Record be sent to the trial court forthwith.
(VINIT KUMAR MATHUR),J (SANDEEP MEHTA),J
/tarun goyal/
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