Madhya Pradesh High Court
Manohar Chouksey vs The State Of Madhya Pradesh on 27 September, 2012
(1)
HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Cr.R. No. 913/2005
Manohar Chouksey
Vs.
State of M.P. and others
As Per : G.S.Solanki, J.
Shri H.S. Dubey, Advocate for the applicant.
Shri Manish Datt, Sr. Counsel with Shri Yogesh Soni for
respondent Nos. 2 and 3.
Shri A.K. Chourasia, PL for the State.
ORDER
(27.9.2012)
1. This revision has been preferred by the applicant under section 397/401 of the Cr.P.C. being aggrieved by order dated 2.6.2010 passed by the Additional Sessions Judge, Burhanpur in S.T. No. 170/2009 whereby the application filed by the applicant under section 319 of the Cr.P.C. has been dismissed.
2. The facts, in short, giving rise to this petition are that accused Anup Kumar and others are facing trial for the offence under section 304-B, 498-A/34 of the IPC. During trial, the applicant filed an application under section 319 of the Cr.P.C. for taking the cognizance against respondent Nos. 2 and 3 inter-alia pleading that respondent Nos. 2 and 3 have also committed cruelty on deceased Kamini in order to make unlawful demand of dowry. This fact has also come in the statements recorded under section 161 of the Cr.P.C. and despite, the aforesaid evidence on record, the prosecution has not filed charge sheet against respondent Nos. 2 and 3, thereafter, the trial Court proceeded to record the evidence, applicant Manohar (PW-8), Karan (PW-9), Pooja (PW-10) and Rajendra (PW-11) specifically named respondent Nos. 2 and 3 before the trial Court. The trial Court (2) dismissed the aforesaid application filed by the applicant, hence this revision.
3. Admittedly, it is a third round of litigation between the parties. Previously applicant filed W.P. No. 5875/2009, in which this Court directed to approach the Police authority for taking action in accordance with law and respondent Nos. 2 and 3 also filed W.P. No. 5364/2009, which was disposed of by this Court vide order dated 18.3.2010 directing the applicant to take appropriate proceedings before the trial Court in accordance with law.
4. Learned counsel for the applicant has submitted that the investigating agency as well as the committal Court did not take cognizance against respondent Nos. 2 and 3 and charge sheet was filed against other co-accused. The applicant and other witnesses like Karan (PW-9), Pooja (PW-10) and Rajendra (PW-11) specifically stated the relationship of the husband of the deceased with respondent Nos. 2 and 3. Respondent Nos. 2 and 3 are cousin brother and sister-in-law of the applicant. Despite the aforesaid evidence on record, the trial Court did not take the cognizance against respondent Nos. 2 and 3. Counsel has further submitted that accused Anup Kumar stated before the Police that respondent No. 2 Anand is son of his uncle. Anup Kumar and respondent Nos. 2 and 3 are in half-blood relation, therefore, respondent Nos. 2 and 3 come under the definition of relative of husband of the deceased. In support of this contention, a Pedigree has been filed of Ramnath Malviya. Thus, the trial (3) Court committed illegality in dismissing the application of the applicant. The impugned order be set aside.
5. Learned Sr. counsel for respondent Nos. 2 and 3 has submitted that respondent Nos. 2 and 3 do not come under the definition of relative of the husband of the deceased. The deceased and her husband Anup Kumar were the employees in the educational Institution of respondent Nos. 2 and 3. Learned Sr. Counsel has further submitted that Ramnath Malviya had 2 wifes, Sushila was a daughter of the first wife and Ramesh Kumar, Manmohan, Anil Kumar and Jyoti were born from the second wife. Admittedly, marriage of Sushila was performed with Jivanlal and respondent No.2 is son of Jivanlal and Sushila. Accused Anup Kumar is son of Manmohan, therefore, there is no blood relationship between Anup Kumar and and respondent Nos. 2 and 3, therefore, the trial Court has not committed any illegality in dismissing the application under section 319 of the Cr.P.C. filed by the applicant and this petition is liable to be dismissed. He has placed reliance on the decision of the Apex Court in Vijeta Gajra Vs. State of NCT of Delhi - (2010) 11 SCC 618 and U. Suvetha Vs. State by Inspector of Police and another - (2009) 6 SCC 757
6. I have heard the learned counsel for the parties at length, gone through the impugned order, statements of Manohar (PW-8), Karan (PW-9), Pooja (PW-10) and Rajendra (PW-11) and other material on record. All the witnesses have stated in their statements that deceased Kamini told them that respondent No. 2 Anand (Jeth) and respondent No. 3 Manjusha (Jethani) tortured (4) her along with her husband. They further stated that she told them that they demanded Rs. 1 Lac and a car. The statement of Anup Kumar recorded during investigation, though not admissible in the evidence against him, however, it is considered for the purpose of relationship between Anup Kumar and respondent Nos. 2 and 3. Anup Kumar has stated that respondent No. 2 Anand is son of Sushila, who is her step Aunty and respondent No. 3 is her wife. Affidavit (A-7) of Anand makes it clear that accused Anup is son of Manmohan, who was step brother of his mother Sushila. On the basis of aforesaid evidence on record, it is clear that respondent No. 2 Anand is son of step Aunty of accused Anup Kumar, i.e. he is step cousin of accused. Certainly, they have no direct blood relationship but they are related through Sushila, therefore, they come under the half blood relationship.
7. In the case of Vijeta Gajra Vs. State of NCT of Delhi (supra), the applicant was foster sister of complainant's husband, thus she was stranger to the family of complainant's husband and she was not held to be the relative of husband of the complainant because she was not having any blood relationship with him. In U. Suvetha Vs. State by Inspector of Police and another (supra) it has been held that a girlfriend or concubine is not connected by blood or marriage with the husband of the accused, therefore, she does not come under the definition of relative. The Apex Court has further observed that the meaning of the word relative depends upon the nature of statute. It principally includes the person related by blood, marriage or (5) adoption considering the definition of relative in different statutes like Lunacy Act, Estate Duty Act, Companies Act, 1956, Income Tax Act and NDPS Act and it has been held that principally the person related by blood, marriage or adoption would come under the definition of the relative.
8. In the instant case, as mentioned, hereinabove, respondent No. 2 being the son of Sushila Devi comes under the half blood relationship with the husband of the deceased because they are descendant from a common ancestor Ramnath Malviya by different wives. The intention of Legislature to include words "any relative of her husband" along with words "her husband"
was that any relative other than the husband, who had occasion to meet the deceased at her matrimonial house and had the opportunity to commit cruelty or harassment on her in connection with the demand of dowry. It is clear from the evidence recorded before the Sessions Judge, that respondent Nos. 2 and 3 used to meet the deceased at her matrimonial house and used to commit cruelty on her in regard to demand of dowry of Rs. 1 Lac and a car and on the basis of the discussion made hereinabove, respondent Nos. 2 and 3 come under the definition of any relative of husband of the deceased. Thus, in my opinion, the trial Court committed illegality in dismissing the application under Section 319 of the Cr.P.C. filed by the applicant and in refusing to take cognizance against respondent Nos. 2 and 3.
9. Consequently, the revision is allowed. The impugned order is hereby set aside. The trial Court is directed to take cognizance (6) against respondent Nos. 2 and 3 under section 319 of the Cr.P.C. and provide opportunity to cross-examine the witnesses, already examined before the trial Court and proceed further in accordance with law.
(G.S.Solanki) Judge PB