Madhya Pradesh High Court
Mahendra Tiwari And Ors. vs The State Of M.P. on 9 October, 2017
1 CrA 76/2005
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
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SB:- Hon'ble Shri Justice G. S. Ahluwalia
Cr.A. No.76/2005
Mahendra Tiwari & Ors.
vs.
State of MP
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Shri R.K. Sharma, Senior Counsel with Shri V. K. Agrawal, counsel
for the appellants.
Shri Yogesh Parashar, Public Prosecutor for the respondent/ State.
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JUDGMENT
(Delivered on 9/10/2017) This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the judgment and sentence dated 18-1-2005 passed by 3rd Additional Sessions Judge, Vidisha in Sessions Trial No. 87/2004 by which the appellants have been convicted under Section 498-A of I.P.C. and have been sentenced to undergo rigorous imprisonment of one year and a fine of Rs.2,000/- with default imprisonment. The appellants have been acquitted for offence under Section 304-B of I.P.C. The acquittal of the appellants for offence under Section 304- B of I.P.C. has not been challenged either by the Police or by the complainant.
(2) Appellant No.1- Mahendra Tiwari and appellant No.3 Bhanuprakash Tiwari have died during the pendency of this appeal and the appeal filed by them has already been dismissed as abated. It would not be out of place to mention here that the husband of the deceased, namely, Manoj was also convicted under Sections 306 and 498-A of I.P.C. who had filed a separate criminal appeal which was registered as Cr.A. No.88/2005. Manoj has also expired and therefore, his Criminal Appeal has also been dismissed as abated. In all 5 persons were tried out of which 3 have expired during the pendency of this appeal and only appellant No. Smt. Mamta Tiwari and appellant no. 4 Smt. Vimla Tiwari are alive.
2 CrA 76/2005(3) The necessary facts for the disposal of the present appeal in short are that the deceased Smt. Meenu was married to co-accused Manoj on 10-2-2003. She died on 29-11-2003 due to burn injuries. On 29-11-2003, the District Hospital, Vidisha, sent an information to the Police Station Kotwali that at about 9:50, that the co-accused Manoj Tiwari has brought the deceased Smt. Meenu Tiwari, wife of Manoj Tiwari in a dead condition. Merg enquiry was conducted by the Police. The statements of the witnesses were recorded. It was alleged by the witnesses, that the deceased Meenu was married to Manoj on 10-2-2003 as per Hindu Rites and Rituals. After the marriage, the appellants and the other co-accused persons started harassing the deceased for demand Rs. 50,000/-. She was harassed to such an extent that ultimately Smt. Meenu died in suspicious circumstances on 29-11-2003 due to burn injuries. The police registered the offence under Sections 304-B and 498-A of I.P.C. and after completing the investigation, filed the charge sheet against the appellants and other co-accused persons for offence under Sections 304-B and 498-A of I.P.C.
(4) The Trial Court by order dated 23-7-2004, framed charges under Sections 304-B, and 498-A of I.P.C.
(5) The appellants abjured their guilt and pleaded not guilty.
(6) The Prosecution in order to prove its case, examined Dr. Nirmala Tiwari (P.W.1), Vinod Shrivastava (P.W.2), Ramvati Mishra (P.W.3), Dr. R.S. Sharma (P.W.4), Ramesh Chandra Mishra (P.W.5), Sunil Kumar Mishra (P.W.6), Ravindra Kumar Shukla (P.W.7), Smt. Sandhya Mishra (P.W.8), Dr. D.S. Badkul (P.W.9), Bittu Sehgal (P.W.10), and Arvind Kumar Saxena (P.W.11). The appellants examined Gappulal (D.W.1), Ramnarayan Sharma (D.W.2), Sandeep Sisodiya (D.W.3), Hukum Singh (D.W.4), Laxmi Narayan Upadhyaya (D.W.5), Dr.S.C. Bansal (D.W.6), Awadhnarayan Sharma (D.W.7), Ganesh Dubey (D.W.8), and Narayan Singh (D.W.9).
3 CrA 76/2005(7) The Trial Court by judgment dated 18-1-2005, acquitted the appellants for offence under Section 304-B of I.P.C. and convicted them under Section 498-A of I.P.C. As the acquittal of the appellants for offence under Section 304-B of I.P.C. has not been challenged, therefore, the evidence would be considered only in respect of offence under Section 498-A of I.P.C.
(8) The first question for determination would be that whether the deceased Smt. Meenu died in a suspicious circumstance within seven years of marriage or not?
(9) Dr. Smt. Nirmala Tiwari (P.W.1), Dr. R.S. Sharma (P.W.4) and a team of Doctors had conducted the postmortem of dead body of the deceased Meenu Tiwari. On external examination, the following injuries were found :
''Eyes partially closed. Tongue protruding in between Teeth. Pugilistic attitude of the body. Deceased having Bindi over Forehead. Applied Mahar over feet and tied sacred thread in left wrist. Body sustained Super to Deep Burns all over body i.e.,100% except sole of the feet. Burnt skin is charred. No smell of kerosene coming out from the body or clothes. Scalp hair burnt partly. A lacerated wound 2''x ½'' x deep to bone present over occipital area of scalp. Blood present in edges (ante mortem). A partly burnt and bloodstained printed cloth found behind bead covering the wound over scalp. All the clothes wore by the deceased almost completely burnt and only pieces of burnt underwear, petticoat and blouse and red coloured bangles in both wrists, Burnt, bloodstained printed cloth (Probably curtain cloth) are sealed.'' On internal examination Carbon particles were distinctly seen in nose, larynx, trachea and Bronchitis. Uterus was found bulky and thus it was preserved and was sent for histopathology examination. According to Postmortem report, the cause of death was primary shock due to extensive flame burn of the whole body. The postmortem report is Ex. P.1.4 CrA 76/2005
Dr. D.S. Badkur (P.W.9) found that uterus and ovary shows signs of early pregnancy (about 4 -6 weeks) duration. The report is Ex. P.6.
(10) Thus, it is clear that the deceased Meenu died in a suspicious circumstance within a period of seven years from the date of her marriage, but since, the appellants have been acquitted for charge under Section 304-B of I.P.C. and as their acquittal has not been challenged therefore, the cause of death or the bodily injuries sustained by the deceased Meenu are not being considered in detail. (11) Vinod Shrivastava (P.W.2) is the scientific officer who had conducted the spot inspection. In his evidence, this witness has stated that he had found the smell of kerosene oil on certain articles and room was full of smoke. Apart from burnt Almirah and other articles, he had found several liquor bottles in the room. His inspection report is Ex. P.2 and spot map is Ex. P.3. He further admitted in his cross examination that in case if the door of the room is locked, then the room will be filled with smoke. As the fire was extinguished by putting water, therefore, the floor was wet. He further admitted that he was told that the door was locked and was opened by putting the fingers inside through a hole. This witness has further submitted that he locked the door and found that the door can be unlocked by putting the fingers through the hole. (12) To prove the allegations of cruelty punishable under Section 498-A of I.P.C., the prosecution has examined, Ramvati Mishra (P.W.3) (Mother of the deceased), Ramesh Chandra Mishra (P.W.5) (Father of the deceased), Sunil Kumar Mishra (P.W.6) (brother of the deceased), Ravindra Kumar Shukla (P.W.7)(Neighbour of the appellants, and Smt. Sandhya Mishra (P.W.8) (Bhabhi of deceased). (13) Ramvati Mishra (P.W.3) has stated that her daughter Smt. Meenu was married to co-accused Manoj on 10-2-2003. The marriage was performed as per their financial condition. T.V., Almirah, Cooler, Dressing Table, Ornaments, Cloths, money etc. 5 CrA 76/2005 were given. She came back from her matrimonial house after 1-2 days after marriage and she stayed in her father's house for 2-4 days.
Her in-laws used to bring her and used to take her back with them. After 2-3 months of the marriage, the deceased Meenu had told her that her in-laws are alleging that the articles of sub-standard quality have been given. They also broke the T.V., Dressing Table and Almirah and were demanding Rs. 50,000/-. The deceased Meenu also informed her, that her in-laws used to beat her. She tried to convince, that after marriage, a girl has to bear this situation and also assured that money will be given as soon as it is arranged. On 29- 11-2003, the father-in-law of the deceased informed on phone, that the deceased has set herself on fire. Her husband went to Vidisha and informed that Meenu has expired. Thereafter, she along with other relatives went to hospital where She had hot talks with appellant Vimla Tiwari. The appellant Vimla Tiwari also had talks with the daughter-in-law of this witness. It was further stated by this witness that the fact that the appellants used to beat the deceased was told by this witness only to her husband and not to any body else. In cross examination, this witness admitted that her husband has retired from the post of Head Constable and Devendra Mishra, who is sitting in the Court, is her son and is working on the post of Sub-Inspector. She further admitted that her two sons, who are unemployed are living with this witness. Her husband is aged about 70-75 years and is a pensioner. They also have 6 Bigha land. She further admitted that Ravindra Shukla, who is an Advocate by profession, and who has cordial relations with the family of the witness has also come to the Court. This witness went to Vidisha from Basoda and reached the Hospital near about 1 hour after getting the information. The husband and other in-laws of the deceased were in the Hospital, but the dead body of the deceased was not in the hospital. The co-accused arranged for an Auto and this witness went to the matrimonial house of the deceased. The 6 CrA 76/2005 police was already there but this witness didn't tell anything to the police. Sringar (makeup) of the dead body of the deceased was done by her in-laws. The funeral was attended by this witness. Some boys who had come from Basoda, had also attended the funeral. Thereafter, this witness came back to Basoda in the night itself. She further admitted that She did not inform anything to the police. Her statement was recorded by the police after near about 2-4-8 days. However, she stated that she do not recollect as to what was told by her to the police. This witness further stated that She do not recollect that whatever She has stated in the Court was ever informed by her to the police or not? She further admitted that when She went to the matrimonial house of the deceased after her death, She did not make any complaint with regard to any harassment. She further admitted that the in-laws of the deceased has 100 bigha of agricultural land however, expressed her ignorance that whether the co-accused Manoj had license of Money Lending or not? She also expressed her ignorance about the financial condition of the in-laws of the deceased but she further stated that her financial condition is good as they are getting Dal and Chapati in food which is sufficient. She also expressed her ignorance that whether any demand was made at the time of marriage or not? She also expressed her ignorance that whether the articles which were given at the time of marriage, were infact given voluntarily or were demanded by the appellants. She further admitted that an amount of Rs. 51,000/- was not given in her presence. She further expressed her ignorance with regard to the total fund received by her husband after his retirement. She further admitted that She is residing in a rented house. She also could not state that when the deceased had come to her father's house prior to her death. She stated that the deceased might have come 8 days or 15 days prior to her death. She also could not clarify that on what date or in which month, the deceased had complained about the harassment by her in-laws. She further admitted that after 7 CrA 76/2005 her marriage, the deceased used to come to her father's house along with her husband and also used to go back with her husband. She further admitted that Manoj used to say that he cannot live without his wife Meenu. She further admitted that the deceased had come to her parent's house for 4-6 times only and had stayed there for 1-2 days only. She further admitted that She had good relations with the co-accused Manoj. She further admitted that she never made any complaint to the co-accused Manoj about the harassment. She further could not say that whether the deceased had ever made any complaint to her father or not? She further admitted that no complaint was ever made, regarding the harassment by the in-laws of the deceased. She further admitted that her husband is a short tempered person however, denied that the deceased was also short tempered. She further admitted that they had not made any complaint to any member of the society about breaking of articles by the appellants. She further admitted that She had never made any complaint about demand of Rs.50,000/- to her son Devendra who is Sub-Inspector in Police Department. She also could not state about the total money spent at the time of marriage. She further admitted that she had not seen the broken articles in the matrimonial house of the deceased.
(14) Ramesh Chandra Mishra (P.W. 5) has stated that his daughter Meenu was married to co-accused Manoj on 10-2-2003. The in- laws of the deceased were not happy with the dowry. They used to harass her and also used to beat her because of non-fulfillment of demand of Rs. 50,000/-. On 29-11-2003, her wife, namely, Ramvati Mishra (P.W.3), informed him that the father-in-law of the deceased has informed her on phone that the deceased Meenu has set herself on fire. He went to Vidisha and enquired on phone. He was informed by co-accused Bhanuprakash that the deceased Meenu has been taken to Hospital. He went to hospital where he was informed that the dead body of Meenu has been kept in the Mortuary. He met with 8 CrA 76/2005 the co-accused Manoj and Mahendra Tiwari. Thereafter he informed his wife on phone about the death of Meenu. It was further alleged that as he could not fulfill the demand, therefore, his daughter has been killed by her in-laws. Safina Form is Ex. P.6 and Inquest report is Ex. P.7. In cross examination, it was admitted by this witness that he retired from service on 1-1-1991 and was getting monthly pension of Rs. 900/-. Now he is getting Rs.3,100/- by way of monthly pension. After retirement he got Rs. 1 lacs under different heads and out of the said amount, he had spent Rs.80-85 thousand for the marriage of his elder daughter. Rs.35,000/- was spent for purchasing 8 bigha of land. He further admitted that the marriage of the deceased took place in a very cordial atmosphere. Articles at the time of marriage were given voluntarily. He admitted that his son Devendra had not attended the Lagun Ceremony, however denied that he did not attend the ceremony because the relations of this witness with his son are not good. An amount of Rs. 51,000 was given in Lagun ceremony. He denied that only 21,000 were given which are visible in the photographs of the ceremony, Ex. D/5. It was further admitted by this witness that in the phonograph Article B, one Rinku Shukla who is the brother of his daughter-in-law Smt. Sandhya Mishra, is visible. He further admitted that one hand of Rinku Shukla is on the shoulder of Meenu. This witness denied that the deceased was interested to marry Rinku Shukla, however, she was married to Manoj contrary to her wishes. This witness has further denied that at the time of inquest, he had stated that he has no complaints against the in-laws of the deceased. He denied that he had made any complaint that the co-accused Manoj used to drink liquor. It was further admitted that at the time of inquest, C.S.P. was also present, but he did not lodge any report. This witness has further stated that he has retired from the police department and knows that offence under Section 304-B of I.P.C. is a cognizable offence and information should be given to the police immediately.
9 CrA 76/2005This witness has stated that he had seen the broken articles in the matrimonial house of the deceased about 1 ½ months prior to the date of the incident. He further denied that his financial position is not good therefore, he could not construct a house for himself. The deceased had come to his house about 25 days prior to her death. He further admitted that the fingers of the co-accused Manoj were also burnt. This witness has further admitted that the allegations of demand of Rs.50,000/- by the in-laws of the deceased is not mentioned in his case diary statements Ex. D.6 and D.7. He further expressed his ignorance that whether co-accused Mahendra is running a school or not? He further admitted that the matrimonial house of appellant Mamta Tiwari is in Sihode. However, her further clarified that cases are pending between the appellant Mamta Tiwari and her husband. He further admitted that the appellant Mamta Tiwari is a teacher and is in Govt. Job.
(15) Sunil Kumar Mishra (P.W.6) has also stated in the similar lines. However, Sunil Kumar Mishra (P.W.6) has admitted the fact that Rs.51,000/- was given at the time of Lagun is not mentioned in his police case diary statement Ex.D.4. He further admitted that his relations with co-accused Manoj and other in-laws of the deceased were good. He further admitted that no dispute had ever taken place between Manoj and the deceased.
(16) Smt. Sandhya Mishra (P.W. 8) has stated that at present She is working in Delhi, whereas her husband is staying at Basoda. The deceased was her sister-in-law (Nanad). After her marriage, the deceased used to generally stay in her matrimonial house and used to visit her father's house occasionally. The deceased used to tell her that her in-laws used to pass taunts that sub-standard articles have been given at the time of marriage. They were insisting that the deceased should bring an amount of Rs. 50,000/- as well as goods of good quality. The deceased was also not interested in going back to her matrimonial house but all the time she was persuaded by this 10 CrA 76/2005 witness that for the pride of the family, she should go back to her matrimonial house. On one occasion this witness had also stayed in the matrimonial house of the deceased for 8 days. The in-laws used to quarrel with the deceased on almost every day. After 8 days, the deceased expired. In cross-examination, this witness admitted that Devendra and his wife, who is her elder brother-in-law are sitting in the Court room. She further admitted that even after 4 years of marriage, She could not conceive and therefore, she had stayed in the matrimonial house of the deceased for getting her treated by Dr. Abha Shukla. This witness was reluctant in staying in the house of the deceased, but it was the deceased who forced her to stay in her matrimonial house. This witness further admitted that her stay was not objected by the in-laws of the deceased. All the tests which were advised by the Doctor were got done by the co-accused Manoj. During her stay in the matrimonial house of the deceased, she was treated well by the co-accused Manoj. The amount which was spent for her treated was borne by the co-accused Manoj. She further admitted that She was never got treated by her own husband or her in-laws. This witness further admitted that She had not stated in her case diary statement that an amount of Rs. 51,000 was given in Lagun Ceremony. She further stated that she had told the police that the appellants and other co-accused persons were insisting that the deceased should bring good articles. However, the said fact is not mentioned in her case diary statement Ex. D.2. She further admitted that as the co-accused Manoj was in habit of consuming liquor therefore, the deceased was upset. She further could not clarify that why the allegations that the deceased was not inclined to go to her matrimonial house is not mentioned in her case diary statement Ex. D.2. She further could not clarify that why the allegations of daily quarrel between the deceased and her in-laws during her stay in the matrimonial house of the deceased is not mentioned in her case diary statement Ex. D.2. Further various omissions were pointed out to 11 CrA 76/2005 this witness in her cross examination and She could not explain as to why those allegations are not mentioned in her case diary statement Ex. D.2. She further admitted that after the death of Meenu when they went to the matrimonial house of the deceased, then the appellant Smt. Vimla Tiwari had alleged that since, the deceased did not belong to good family therefore, She has died. This witness further stated that her father-in-law i.e., Ramesh Chandra Mishra (P.W.5) is not short tempered, but admitted that the deceased was short tempered. She further admitted that the co-accused Manoj was a Money Lender and their financial position is good. She further admitted that the financial condition of the in-laws of the deceased is better than that of the parent's of the deceased. She further admitted that the financial condition of the father of the deceased is not good so as to give an amount of Rs. 50,000/-. She further admitted that during her stay in the matrimonial house of the deceased, the co- accused Manoj and the deceased had never quarrelled in her presence. She was merely informed by the deceased. She further admitted that as co-accused Manoj was in habit of consuming liquor therefore, the deceased was upset. She further admitted that the deceased had never informed her about quarrel with the other in- laws. The behavior of in-laws with the deceased was good. They never picked up any quarrel in her presence. The appellant Smt. Vimla Tiwari used to criticize the deceased as She was in the habit of waking up late in the morning and was also not doing household works. The appellant Vimla Tiwari also informed that the deceased Meenu is in habit of giving replies. She further admitted that the co- accused Manoj had helped her financially also. She has also admitted that after marriage, the deceased Meenu had opened a bank account in Basoda.
(17) Arvind Kumar Saxena (P.W.11) is the investigating officer. This witness has admitted that after the incident, he was present on the spot and Ramesh Chandra (P.W. 5), Ramvati Mishra (P.W.3) and 12 CrA 76/2005 Sunil Mishra (P.W.7) were present on the spot, but they didnot allege against the accused persons. Ramesh Chandra Mishra (P.W.5) is one of the signatory of the inquest proceedings, but still he didnot allege against the appellants. The statements of the witnesses were recorded on 6-12-2003 whereas the death had taken place on 29-11- 2003. He further admitted that when he went to the spot, he didnot find any broken goods in the house of the appellants, otherwise, he would have certainly prepared the Panchnama. He further admitted that he had found the T.V. in intact condition. He further admitted that he lodged the F.I.R. Ex. P.27 on 13-12-2003 i.e., 7 days after recording of merg statements. He further admitted that none of the neighbours had informed him about the harassment of the deceased. He further admitted that he had met with co-accused Manoj on 29- 11-2003 and his fingers were burnt. He further admitted that Ramesh Chandra Mishra (P.W.5) did not lodge the F.I.R. Even in his case diary statements Ex. D.6 and D.7, he did not disclose that he had given Rs. 51,000 in Lagun ceremony. He further admitted that Ramesh Chandra Mishra (P.W. 5) had also not stated in his case diary statements Ex. D.6 and D.7 that the deceased was harassed because of non-fulfillment of demand of Rs. 50,000. It was also not stated by Ramesh Chandra Mishra (P.W. 5) that the in-laws of Meenu were alleging that goods of sub-standard quality have been given. Ramesh Chandra Mishra (P.W.5) had also not stated in his case diary statements Ex. D.6 and D.7 that the in-laws of the deceased had broken the articles given at the time of marriage and had demanded Rs. 50,000/-. Similarly, Sunil (P.W. 7) had also not stated about the harassment as well as that an amount of Rs. 51,000 was given at the time of Lagun ceremony in his case diary statement Ex. D.3. He further admitted that Sunil Kumar Mishra (P.W.7) had also not stated in his case diary statements Ex. D.3 and D.4 about the fact that the deceased had informed about the harassment or beating. Similarly, the omissions in the case diary statements of other 13 CrA 76/2005 witnesses have also been proved by this witness. (18) Thus, from the evidence of Ramvati Mishra (P.W.3), Ramesh Chandra Mishra (P.W.5), Sunil Kumar Mishra (P.W.6) and Smt. Sandhya Mishra (P.W.8) who are the relatives of the deceased, it is clear that the allegations are that as the in-laws of the deceased Meenu were not happy with the quality of the articles given at the time of marriage, therefore, they were passing taunts and were demanding Rs. 50,000. However, if on the deeper scrutiny of their evidence, it would be clear that there are material omissions and contradictions. Undisputedly, the marriage was performed without there being any demand. The dowry was given voluntarily. The father of the deceased Meenu has retired from police service, but still no complaint was made to any police officer about harassment after the death of Meenu, although senior police officers were present on the spot. Although Ramvati Mishra (P.W.3) has stated that the deceased was not of short tempered, but Smt. Sandhya Mishra (P.W.8) has specifically stated that the deceased was short tempered. The financial position of the in-laws of the deceased was better than that of the complainant party. Even the co-accused Manoj used to financially help his in-laws. None of the witness has witnessed any ill-treatment at the hands of the in-laws of the deceased. Even Smt. Sandhya Mishra (P.W.8) who had stayed in the house of the deceased, was welcomed by the appellants and in fact the co-accused Manoj had borne the expenses of treatment of Smt. Sandhya Mishra (P.W.8) whereas Smt. Sandhya Mishra (P.W.8) has specifically stated that She was never got treated by her own husband. Even there is material omission as to on what date, the deceased had come to her matrimonial house for the last time. According to Ramvati Mishra (P.W.3), the deceased had come about 8 days prior to her death for the last time, whereas Ramesh Chandra Mishra (P.W. 5) has stated that the deceased had come about 25 days prior to her death. On the contrary, Smt. Sandhya Mishra (P.W.8) 14 CrA 76/2005 has stated that She was along with Meenu in her matrimonial house for 8 days and 8 days thereafter, the deceased expired. The police has also not seized the broken articles from the house of the appellants. The Trial Court after considering the defence evidence has also given a finding that on the date of incident, none of the in- laws of the deceased were residing in the house and they were residing separately at different places. Thus, it is clear that the co- accused had not only helped the relatives of the deceased financially, but his relations with his in-laws were good. The deceased was upset with the habit of liquor consumption by her husband and Vinod Shrivastava (P.W.2) had also found several liquor bottles in the room. The evidence of demand of Rs. 50,000/- and harassment by the in-laws doesnot appear to be correct specifically when the co- accused Manoj had not only helped Smt. Sandhya Mishra (P.W.8) and her husband financially, but he had got her treated at Vidisha whereas even the husband of Smt. Sandhya Mishra (P.W.8) had not got her treated. The financial condition of Ramesh Chandra Mishra (P.W.5) is not at par with that of the appellants and appellants were financially sound in comparison to the parents of the deceased. No complaint was made by the parents of the deceased immediately after the incident, although the senior police officers were present and even Ramesh Chandra Mishra (P.W.5) himself is a retired police personal. Another important aspect of the matter is that Devendra who is the son of Ramvati (P.W.3) and Ramesh Chandra (P.W.5) is not a witness in the present case, but at the time of recording of evidence, he was present in the Court room. Devendra is also working as Sub-Inspector in the police department. Further, the deceased Meenu was of a short temper. Thus, it appears that the deceased was unhappy with the habit of her husband of consuming liquor and She was short tempered lady. The allegations of demand of dowry and harassment are not reliable in the light of important omissions and contradictions in the evidence of the witnesses.
15 CrA 76/2005(19) Ramesh Chandra Mishra (P.W.5) has also admitted that the appellant Mamta Tiwari is a married women and her matrimonial house is at Sihode. Although he has tried to explain that cases are pending between Mamta Tiwari and her husband but the same cannot be accepted. The appellants have examined witnesses in their defence. Hukum Singh (D.W.4) was the landlord of the appellant Mamta Tiwari who has stated that the appellant Mamta Tiwari was residing in his house as a tenant in village Sihode. Similarly, Awadh Narayan (D.W.7) is the Head Master, Primary School, Sihode where the appellant Smt. Mamta Tiwari is working as a teacher.
(20) Thus, it is clear that the appellant Smt. Mamta Tiwari, who is the sister of co-accused Manoj was a married lady, working as a Teacher in Govt. Primary School and was residing separately at a different place.
(21) Similarly, the Trial Court itself has come to a conclusion that on the date of incident, the co-accused Manoj and the deceased Meenu were all alone in the house and other co-accused persons were residing in village Atarikheda. Co-accused Mahendra Tiwari, the son of the appellant Smt. Vimla Tiwari was running a school at Atarikheda. Narayan Singh (D.W.9) has stated that the co-accused Mahendra Tiwari was running a High school at Atarikheda. The school was recognized by the Govt. Gappulal (D.W.1) has stated that he was the landlord of Bhanuprakash, Mahendra Tiwari and the appellant Smt. Vimla Tiwari and they were residing in his house for the last more than 4 years. Thus, it is clear that the appellant Smt. Vimla Tiwari was also residing separately from the co-accused Manoj Tiwari and the deceased. Ramesh Chandra Mishra (P.W. 5) has stated in his cross examination that he doe snot know that whether co-accused Mahendra Tiwari is running a private school in village Atarikheda or not? This reply given by Ramesh Chandra Mishra (P.W.5) cannot be accepted, because it is a matter of common 16 CrA 76/2005 knowledge that before finalizing the marriage of a girl, her parents do enquire about the family background of the groom's family. Thus, it is clear that prosecution witnesses have tried to suppress. (22) This Court has already come to a conclusion that the allegations of harassment/cruelty by the appellants have not been proved beyond reasonable doubt. However, there is another aspect of the matter. It is well established principle of law that in order to prosecute the near and dear relatives of the husband, there should be specific allegations against them. Vague and omnibus allegations are not sufficient warranting their prosecution.
The Supreme Court by order dated 27.7.2017 passed in the case of Rajesh Sharma & Ors. vs. State of U.P. & Anr. in Criminal Appeal No.1265/2017 has once again expressed its concern over the misuse of provision of Section 498-A of IPC and issued certain directions for involvement of the civil society and has also directed for establishment of family welfare committee in every districts.
The Supreme Court in the case of Kans Raj Vs. State of Punjab & Ors., reported in AIR 2000 SC 2324 has held as under:-
"5. We agree with the learned counsel for the respondents 3 to 5 that his clients, namely, Ramesh Kumar, brother of the husband, Ram Pyari, mother of the husband and Bharti sister- in-law of the husband-accused cannot be alleged to be involved in the commission of the crime and were rightly acquitted by the High Court. There is no evidence produced by the appellant worth the name against the aforesaid respondents. Even PW Nos.5 and 6 have not brought on record any incriminating circumstance attributable to the aforesaid accused which could be made the basis for their conviction. Ram Kishan, PW-5 in his deposition before the Court had stated that "after the marriage Rakesh Kumar, accused raised a demand of Rs.15,000/- for a scooter and refrigerator. We fulfilled that demand by giving Rs.20,000/- to him for scooter and 17 CrA 76/2005 refrigerator..... Rakesh Kumar used to threaten Sunita that she would be done to death because of having inadequate dowry. On 21st September, 1988 Sunita had come to my younger brother Tarsem in connection with a ceremony concerning his son. She also visited us as the house of Tarsem Kumar is close to our house. She stayed with us for the night. We gave her customary present i.e. clothes etc. and cash amount of Rs.500/-. She apprehended danger to her life in the house of her in-laws and was not willing to go there". He has not referred to any demand of dowry or harassment by the respondents except Rakesh Kumar. Tarsem Kumar, the other brother of the deceased at whose residence she had gone on 21st September, 1988 has not been produced as a witness in the case. Kans Raj PW6, the father of the deceased stated before the Trial Court that Sunit Kumari had told him that she was being taunted by her mother-in-law Ram Piari, accused Ramesh Chander and his wife Bharti accused besides her husband Rakesh Kumar. The details of the alleged taunting have not been spelt out. The only thing stated is that the accused used to tell the deceased that she being the daughter of BJP leader, who used to boast about his financial position had brought inadequate dowry. He further stated that various sums of money and the colour TV was given to Rakesh Kumar on his demand. Amar Nath and Janak Raj, President and General Secretary of Mahajan Sabha respectively and one Kundan Lal Gaba were taken by him to the residence of the accused persons. The deceased was alleged to have been taunted again in presence of the aforesaid witnesses. However, none of the aforesaid witnesses supported the case of the prosecution. In the light of the evidence in the case we find substance in the submission of the learned counsel for the defence that respondents 3 to 5 were roped in the case only on the ground of being close relations of respondent No.2, the husband of the deceased. For the fault of the husband, the in-laws or the other relations cannot, in all cases, be held to be involved in the demand of dowry. In cases where such accusations are 18 CrA 76/2005 made, the overt acts attributed to persons other than husband are required to be proved beyond reasonable doubt. By mere conjectures and implications such relations cannot be held guilty for the offence relating to dowry deaths. A tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case."
The Supreme Court in the case of Monju Roy & Ors. vs. State of West Bengal reported in (2015) 13 SCC 693 has held as under:-
"8. While we do not find any ground to interfere with the view taken by the courts below that the deceased was subjected to harassment on account of non-fulfillment of dowry demand, we do find merit in the submission that possibility of naming all the family members by way of exaggeration is not rules out. In Kans Raj (2000) 5 SCC 207, this Court observed: (SCC p.215, para 5) "5. .... A tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over-enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case."
The court has, thus, to be careful in summoning distant relatives without there being specific 19 CrA 76/2005 material. Only the husband, his parents or at best close family members may be expected to demand dowry or to harass the wife but not distant relations, unless there is tangible material to support allegations made against such distant relations. Mere naming of distant relations is not enough to summon them in the absence of any specific role and material to support such role.
11. The court has to adopt a pragmatic view and when a girl dies an unnatural death, allegation of demand of dowry or harassment which follows cannot be weighed in in golden scales.
At the same time, omnibus allegation against all family members particularly against the brothers and sisters and other relatives do not stand on the same footing as husband and parents. In such case, apart from general allegation of demand of dowry, the court has to be satisfied that harassment was also caused by all the named members."
The Supreme Court in the case of Geeta Mehrotra & Anr. vs. State of U.P. & Ors. reported in (2012) 10 SCC 741 has held as under:-
"17. Aggrieved by the order of the Madras High Court dismissing the petition under Section 482 Cr.P.C., the special leave petition was filed in this Court giving rise to the appeals therein where threefold contentions were raised viz.: (Ramesh case (2005) 3 SCC 507, para 4) "(i) that the allegations are frivolous and without any basis;
(ii) even according to the FIR, no incriminating acts were done within the jurisdiction of Trichy Police Station and the Court at Trichy and, therefore, the learned Magistrate lacked territorial jurisdiction to take cognizance of the offence and
(iii) taking cognizance of the alleged offences at [that] stage [was] barred under Section 468(1) Cr.P.C. as it was beyond the period of limitation prescribed under Section 468(2) Cr.P.C."
Apart from the subsequent two contentions, it was urged that the allegations 20 CrA 76/2005 under the FIR do not make out any offence of which cognizance could be taken.
18. Their Lordships of the Supreme Court in Ramesh Case had been pleased to hold that the bald allegations made against the sister-in-law by the complainant appeared to suggest the anxiety of the informant to rope in as many of the husband's relatives as possible. It was held that neither the FIR nor the charge sheet furnished the legal basis for the Magistrate to take cognizance of the offences alleged against the appellants. The learned Judges were pleased to hold that looking to the allegations in the FIR and the contents of the charge sheet, none of the alleged offences under Sections 498-A, 406 and Section 4 of the Dowry Prohibition Act were made against the married sister of the complainant's husband who was undisputedly not living with the family of the complainant's husband. Their Lordships of the Supreme Court were pleased to hold that the High Court ought not to have relegated the sister-in-law to the ordeal of trial. Accordingly, the proceedings against the appellants were quashed and the appeal was allowed."
(23) Thus, it is clear that merely bald allegations have been made against the relatives of the husband without there being any specific overt act on their part. General, vague and omnibus allegations of demand of Rs. 50,000/-, harassment and breaking of articles given at the time of marriage have been without specifying the date, place and time of such demand, harassment.
(24) Thus, viewed from every angle, this Court is of the considered opinion, it appears that the deceased Meenu was a short tempered lady and was aggrieved by the habit of the co-accused Manoj of consuming liquor. The fact that Vinod Shrivastava (P.W. 2) also found several liquor bottles from the room also indicates towards the habit of co-accused Manoj of consuming liquor. Accordingly, it is held that the prosecution has failed to prove beyond reasonable doubt that the appellants Smt. Mamta Tiwari and Smt. Vimla Tiwari, had ever made any demand of Rs. 50,000 from the deceased or had 21 CrA 76/2005 ever passed any taunt regarding sub-standard quality of the articles given at the time of marriage and or had ever harassed the deceased Meenu because of non-fulfillment of their demand of dowry. (25) Accordingly, it is held that the appellants are not guilty of committing offence under Section 498-A of I.P.C. Hence, the appellants are acquitted of charge under Section 498-A of I.P.C. (26) The judgment and sentence dated 18-1-2005 passed by 3rd Additional Sessions Judge, Vidisha in Sessions Trial No.87/2004 is hereby set aside.
(27) The appellants Smt. Mamta Tiwari and Smt. Vimla Tiwari are on bail. Their bail bonds and surety bonds stands discharged. (28) The appeal succeeds and is hereby allowed.
(G.S. Ahluwalia) Judge 9/10/2017