Court: Madhya Pradesh High Court
Bench: JUSTICE U.C. Maheshwari & G.D. Saxena
State of M.P. Vs. Rakesh Kumar & Anr. On 02 May 2013
Law Point:
Decree of restitution of conjugal rights in favour of the husband. Interim maintenance should not be endorsed. Indian Penal Code, 1860 — Sections 498A, 307 — Dowry Prohibition Act, 1961 — Section 4 — Criminal Procedure Code, 1973 — Section 378(3) — Cruelty — Attempt to Murder — Dowry demand — Appeal against acquittal — Respondents neither poured kerosene on victim nor set her ablaze and deceased never subjected to any cruelty on account of dowry demand — Acquittal by Trial Court confirmed — Respondent No. 6 victim has not implicated any of the respondents for setting her ablaze — Reasoning given by Trial Court for acquittal not contrary to settled principles of law and upheld.
JUDGEMENT
1. The State has preferred this appeal under Section 378 (1) of the Code of Criminal Procedure 1973 being aggrieved by the judgment dated 14.05.1998 passed by charges of Sections 307 and 498A of the Indian Penal Code and Section 4 of the Dowry Prohibition Act.
2. Brief facts, according to prosecution which are necessary to dispose of this appeal are recapitulated as under:—
The victim Malti (PW-6) got married with respondent No. 1 Rakesh Kumar before 9-10 months from the date of the alleged incident i.e. 27.1.1997. At the time of marriage, her father had given her the dowry according to his capacity in spite that her husband (respondent No. 1) and mother-in-law (respondent No. 2) were demanding T.V. Set and Rs.25,000/- in cash saying that if such demand is not fulfilled then the victim is not safe. It is also stated that on showing incapacity to give aforesaid sum and T.V. set by the father of Malti, namely, Prabhudayal (PW-6), he was abused by the respondents and also ousted from the matrimonial home of the victim. In further averments it is said that in the midnight of 26-27 January, 1997, the respondents and their family members, namely, Rajaram, Ashok and Manohar after pouring kerosene on the victim set her ablaze. Such fire was quenched by the persons of the locality. Then she was taken to the hospital where she was admitted for treatment but the information of this incident was not given to her father immediately. On dated 2.2.1997 when said Prabhudayal, the father of the victim came to know about the incident then he rushed to the hospital, Datia where the victim Malti was admitted in very bad condition. She apprised about the incident to him saying that she was asked by the in-laws family that she has to making the food. As per further averment, the intimation about the condition of the victim was sent from the aforesaid hospital Datia to the Police Station Dursada on dated 27.1.1997.
3. As per available record and the prosecution case, during treatment of the victim, her statement in the shape of dying declaration (Ex.D/3) was recorded by the doctor of the aforesaid hospital and in response of the aforesaid information to the Police Station, some head constable also came who recorded the interrogatory statement of the victim in which she herself stated that she sustained the alleged burn injury accidentally while making the food. Subsequent to it, after coming the members of her parental family i.e. father Prabhudayal and mother and also under the advice of some Advocate of Jhansi, her report in writing stating the above mentioned facts was sent to the police station Dursada, through registered post which is evident on record as Ex.P-6. At the backside of such Ex.P-6, the postal tickets are also affixed and the seal of the post office is also bearing. On the basis of the aforesaid report in writing (Ex.P-6), the first information report (Ex.P-11) was registered on dated 9.3.1997 at about 15-10 hours by L.S. Chauhan, ASI of the aforesaid Police Station and in such report the names of respondents No. 1 and 2 were impleaded as accused. On the basis of such report the offence under Sections 307 and 498A of the Indian Penal Code and Sections 4 & 5 of the Dowry Prohibition Act ‘/ was registered and the same was investigated. On completion of the same, the respondents were charge-sheeted for the above mentioned charges.
4. After committing the case to the sessions court, on evaluation of the charge sheet, the charges of Sections 307 and 498A of the Indian Penal Code and Section 4 of the Dowry Prohibition Act were framed against the respondents. They abjured their guilt on which the trial was held. After recording the evidence on appreciation of the same, the respondents were acquitted by the trial court on which the appellant/State has come to this Court with this appeal.
5. Shri Mukund Bhardwaj, learned Government Advocate for the appellant/State as well as Shri V.K. Saxena, learned Senior Advocate assisted by Shri Aditya Singh, learned counsel for respondents are heard on merits.
6. Keeping in view their arguments, we have carefully gone through the record of the trial court including the depositions of the witnesses and the exhibited documents alongwith the impugned judgment.
7. It is undisputed fact that victim Malti got married with respondent No. 1-Rakesh Kumar, son of respondent No. 2-Smt. Shanti before 9-10 months from the date of the alleged incident. It is also apparent that subsequent to the marriage, at any point of time, no complaint with respect to demand of dowry or cruelty was made against the respondents either by the victim or any other persons from her parental family. On the aforesaid date of the incident, i.e. 27/1/1997, after sustaining the alleged burn injuries by the victim, she was taken by the members of the family of the respondents to the hospital. Immediately after reaching to the hospital, she was medically examined and her MLC report (Ex.P/12) was prepared by Dr. D.K. Sharma (PW-11), posted as Assistant Surgeon in the Govt. Hospital Datia in which the following injuries were found on her person:—
“Ist degree burn on chin, left upper arm, right arm & right forearm, Both Breasts, epigastric & both Hypochondria of Abdomen. Hypogastrium find degree burn on both thighs. RT Thigh- Anterior, Posterior, Lateral aspect Left Thigh- Anterior aspect, Medial and Lateral Aspect. Extent of burn – about 50% Degree – Varying from 1st to II degree. Nature ? Can be given after healing. Duration – Within about 24 hours from time of examination.”
8. Simultaneously, the said doctor had also sent the information vide Ex.P/8 to the police Kotwali, Datia regarding treatment of the victim in the above-mentioned condition. In such intimation, he also asked the police authority to record the dying declaration of the victim through some competent officer, but it transpires from the record that no such officer was deployed or sent to record the same on which in presence of the independent witnesses said Dr. D.K. Sharma (PW-11) himself has recorded such statement. In such statement at the beginning so also at the end, he has stated the averment regarding the fitness of the witness to give statement. Such statement is also marked in the record as. Ex.D/3. As per averment of it, the victim Malti herself has stated that while making the food she sustained burn injuries from the earthen cooking stove and her clothes were also burnt. She specifically stated that she sustained injuries on chest, stomach, both arms and both thighs. In further averment, she stated that she was saved by her father-in-law Kallu and elder brother of her husband, namely, Ashok. In reply to last question, she stated that she was not put to fire by any other person and the aforesaid elder brother of her husband brought her to the hospital through bus. According to record, this appears to be the first statement of the victim with respect of the alleged incident. After recording the aforesaid statement by the doctor, Dayaram Verma (PW-8), Head Constable of the Police Station Tharet also came to the hospital and recorded the interrogatory statement (Ex.D-2) of the said victim Malti. In such statement Ex.D-2, she stated that before preparing the food, she was kneading the flour and nearby her place the earthen cooking stove was burning with flames. As soon as she took the water to knead the flour, her Saree [wearing clothes] came into contact with the flames on which she cried, on which the elder brother of her husband namely Ashok who was outside the house immediately came. Her father-in-law Kallu also came there and quenched the aforesaid fire. In such statement, she categorically stated that she did not have any quarrel with any family member of her in-laws. In further averments, she stated that her husband had gone alongwith her sister-in-law, the wife of the brother of the husband to some other place and after sustaining the injuries, her aforesaid brother-in-law Ashok and other brother-in-law Manohar including her father-in-law Kalhi brought her up to the road through bullock cart and from where she was taken to the hospital by bus. She also described the injuries sustained in such incident.
9. Accordingly, immediately after reaching to the hospital, she stated in her earlier statement, the cause and consequence of sustaining the injuries in the above-mentioned incident and that the aforesaid incident was accidental and in such premises, it could be inferred that such incident was not the cause and consequence of any of the respondents or some other persons.
10. During the course of recording the aforesaid interrogatory statement by the Police, the victim did not make any complaint to the police against the respondents or any of them. It appears that subsequent to it, after 2-3 days, her parents and brother came to the hospital to meet her and thereafter her father Prabhudayal (PW-5) and brother Sukh Singh (PW-4) consulted some counsel of Jhansi and also brought him to the hospital. After consultation, report in writing (Ex.P-6), was sent through registered post to the Police Station Dursada and it appears that on such report in writing which was received by the Police on 4.2.1997, the first information report (Ex.P-11) was registered on 9.3.1997. Subsequent to that, during the course of investigation, the Station House Officer of the aforesaid Police Station submitted a report (Ex.P-10) dated 17.2.1997 to the Superintendent of Police, Datia. In such report, inter alia, it was stated that on making interrogation of the victim so also persons from her parental side of village Bagpura, namely, Shanti w/o Kallu, Kallu S/o Amarju, Pista w/o Ashok, Manohar S/o Kallu, Ashok S/o Kallu and the persons of neighbourhood, namely, Sheela Devi Patwa, Ratua Ahirwar, Veeran w/o Dault Ahirwar, Ramswaroop Ahirwar and Ramesh Ahirwar, it has been established that subsequent to the : marriage, no quarrel had taken place with the victim in her matrimonial house. It is also stated that she herself has not stated regarding any beating of her by any of the members of her in-laws. Even, she has not contended with respect to demand of dowry against the respondents.
11. After submitting the aforesaid report (Ex.P-10) on 17.02.1997, the concerning S.P. of district Datia had endorsed such report to SHO of P.S. Dursada directing him to register the offence under Sections 307, 498A of IPC as well as Sections 4 & 5 of the Dowry Prohibition Act and investigate the same.
12. It is apparent that before submitting the report (Ex.P-10) on 17.02.1997, the first information report (Ex.P-11) was already registered on the basis of report in writing which was received by the Police on 4.2.1997 then what was the necessity felt by the S.P. District Datia to direct the Station House Officer of the aforesaid police station to register the offence and investigate the same when the matter was already under investigation. The reason in this regard is best known to the office of the S.P./ but in such circumstances, it appears that either in the preliminary enquiry of the incident or during the established and it was only because of the aforesaid report submitted to the office of the S.P. and on account of direction of the S.P., the matter was further investigated. Why this conflicting situation had taken place in the matter, in this regard, no explanation has been put forth by the prosecution in this case.
13. It appears that after coming the members of the parental family of Malti with their connivance by concocting the story, the respondents were implicated in the matter.
14. Sukh Singh (PW-4) and Prabhudayal (PW-5), the brother and father of the victim, have categorically stated that on coming to the Hospital they came to know about the incident from the victim Malti (PW-6). They further stated that Malti was subjected to demand of T.V. and buffalo in her matrimonial home by the respondents but they have not stated about demand of Rs.25,000/- in cash as stated in the FIR and the report in writing. On going through their entire in-chief as well as cross-examination, it appears that they have mainly stated those things which were apprised to them by Malti. So, in such premises, Malti (PW-6) was the only material witness in this matter and in order to decide the impugned case, the trial court was bound to consider her deposition cautiously so also keeping in view her entire conduct.
15. True it is, in her deposition she has stated that in the matrimonial home she was subjected to demand of T.V. and Rs.25,000/- in cash. Such allegations were not only stated against the respondents but she also implicated in this regard her father-in-law Kallu. In para 4 of her chief she has stated that on the day of incident at about 7 O’clock in the morning, when she was kneading flour, at that time, both the respondents came1 to her and her mother-in-law Shanti/respondent No. 2 poured kerosene over her from the bottle and respondent No. 1 Rakesh, her husband set her ablaze consequently she sustained the injuries. It is apparent fact on record that such version of the victim has not been supported by any independent witness of the locality of her matrimonial home.
16. The entire case was based mainly on the testimony of victim Malti (PW-6), therefore, the trial court was bound to scrutinize her deposition cautiously keeping in view the other available circumstances and the evidence of the case.
17. It is apparent fact on record that immediately after the incident as soon as Malti was taken to the hospital by the family members of her in-laws, her dying declaration (Ex.D-3) was recorded by Dr. D.K. Sharma (PW-11). On receiving the information, Dayaram Verma (PW-8), Head Constable of the Police Station Tharet, also came and recorded her interrogatory statement. It has not come in the record that either said police Head Constable or the doctor was related with the in-laws’ family of Malti, as such, they were the independent and impartial persons and at the time of recording her statement by them; either Ex.D-2 recorded by Dayaram Verma (PW-8), Head Constable, or Ex.D-3 recorded by the doctor D.K. Sharma (PW-11), the victim has not impleaded any of the respondents for setting her ablaze. Even in couple of days, no complaint was made by her either to the police or to the doctor in this regard. Only after coming her father Prabhudayal (PW-5) and brother Sukh Singh (PW-4) under their pressure so also after consultation of some advocate, the story was concocted and developed. In such premises, it appears that under the pressure of the parental family, the report in writing was sent to the Police on which the impugned case was registered against the respondents.
18. We are of the considered view that while appreciating the testimony of the victim Malti (PW-6) by virtue of Sections 32 read with 145 of the Evidence Act, the Court has authority to examine the conduct and veracity of this witness in the light of her earlier statements Ex.D-2 and Ex.D-3. Pursuant to it, on examining the matter, it is apparent that on earlier occasion, while recording Ex.D/2 and Ex.D/3, she had not implicated to any of the respondents as stated above and subsequent to coming the persons from the parental family, as stated above, just to implicate the respondents, the story was concocted and the respondents were implicated.
19. Apart the aforesaid, on going through the cross-examination of Prabhudayal (PW-5) as well as Malti (PW-6), we have gathered information that there was some illicit relationship of Malti with Ashok, the brother of her husband-respondent No. 1 because such respondent No. 1 was impotent and such thing was known that the victim Malti set herself ablaze. While dealing with the matter, such aspect was also considered by the trial court.
20. Considering the above-mentioned all circumstances, the trial court has come to the conclusion that any of the respondents has neither poured kerosene on the victim nor set her ablaze and also held that Malti was never subjected to any cruelty on account of demand of dowry or otherwise in the matrimonial home by the respondents and in such premises, respondents have been acquitted by the trial court.
21. Thus, on careful analysis of the entire evidence on record, we are of the view that the reasons given by trial Court for acquittal are not contrary to the settled principles of law. Pursuant to it, by affirming the judgment of the trial court, this appeal being devoid of merits, is hereby dismissed. The bail bonds of the respondents, if any, same are hereby discharged.
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