// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN 1. D.B. Criminal Appeal No.243/2005 {Akhilesh Vs. The State of Rajasthan through its PP} 2. D.B. Criminal Appeal No.818/2005 {State of Rajasthan Vs. Sanjay & Others} 3. D.B. Criminal Revision Petition No.282/2005 {Krishanavtar Bhoot Vs. State of Rajasthan & Others} Date of Order ::: 20th January, 2009 Present Hon'ble Mr. Justice Narendra Kumar Jain Hon'ble Mr. Justice Guman Singh Shri S.R. Bajwa, Senior Advocate, with Shri V.P. Bishnoi and Shri V.R. Bajwa, Counsel for accused-appellant Akhilesh and accused-respondents – Sanjay, Smt. Shankutla, Miss Sunita and Smt. Urmila Shri Satyendra Kumar Gupta with Srhi Rajneesh Gupta, Counsel for complainant Krishanavtar Shri B.K. Sharma, PP, for the State #### //Reportable// By the Court (Per Hon'ble Justice Jain):- The aforesaid three cases i.e. two criminal appeals and one criminal revision petition, are directed against the common order dated 19th February, 2005 passed by the Additional District & Sessions Judge (Fast Track) No.1, Jaipur District, Jaipur, in Sessions Case No.13/2002, therefore, they were // 2 // heard together and are being disposed of by this common order. Under the impugned order, the learned trial court, while acquitting the accused-persons, namely Sanjay, Smt. Shakuntla, Miss Sunita and Smt. Urmila from the charges under Section 302/120-B IPC and in alternative under Sections 304-B, 498-A, 201/120-B, IPC, convicted and sentenced the accused Akhilesh as under:- S.No. Accused Under Section Sentence of Imprisonment 1. Akhilesh S/o Dwarka Prasad 302, IPC To undergo life Imprisonment and a fine of Rs.500/- 498A, IPC To undergo two years RI and a fine of Rs.100/- 201, IPC To undergo five years RI and a fine of Rs.100/- In default of payment of total fine of Rs.700/-, as mentioned above, the appellant was to further undergo additional simple imprisonment of three months. All the sentences were ordered to run concurrently. Being aggrieved with the impugned judgment and order, accused Akhilesh has preferred D.B. Criminal Appeal No.243/2005 challenging his conviction and sentence passed by the trial court, as mentioned above. The State of Rajasthan has challenged the order of acquittal of accused-persons, namely, Sanjay, Smt. Shakuntla, Miss Sunita and Smt. Urmila, // 3 // from the charge under Section 302/120-B IPC and, in alternative under Sections 304-B, 498-A, 201/120-B, IPC, by filing D.B. Criminal Appeal No.818/2005. The complainant/informant Krishnavtar has also preferred D.B. Criminal Revision Petition No.282/2005, challenging the order of acquittal of accused-persons, namely, Sanjay, Smt. Shakuntla, Miss Sunita and Smt. Urmila from the charges levelled against them. Briefly stated, the facts of the case are that on 23rd June, 2000, PW-14 Suresh Chand Gupta lodged a written-report (Exhibit P-29), stating therein that he received an information in Tehsil from his brother-in-law Nagarmal at about 11.45 AM to the effect that the wife of his nephew Akhilesh got burnt; whereupon, he immediately rushed to the house of his brother Dwarka Prasad. His sister-in-law (Bhabhi - elder brother's wife) Smt. Shakuntla Devi, nephews - Akhilesh and Sanjay were present and, in their presence, he saw that Kavita had died due to burn injuries, therefore, he prayed that necessary proceedings in this regard may be drawn. Kavita was married about 2 years ago. On the basis of above information, a Murg FIR No.17/2000 was registered under Section 176 Cr.P.C., and the matter was referred for enquiry to the Additional District Magistrate, Kotputali. The Additional District Magistrate, // 4 // Shri Yunus Ali Khan (PW-19), reached at the spot and prepared inquest report (Exhibit P-18) and site-inspection-report (Exhibit P-39). Postmortem of the dead-body was also conducted by the Medical Board. During the pendency of the enquiry under Section 176, Cr.P.C., PW-1 Krishnavatar lodged a handwritten-report running in seven pages (Exhibit P-1) at the Police Station Kotputali, District Jaipur, wherein it was alleged that he is resident of Tilak Nagar, Jaipur, and he has his business at Jaipur. It was further alleged that he received a telephonic call on 23rd June, 2000 at about 12'O Clock in the noon from Kotputali and thereby it was informed that his daughter Kavita has been killed and call was disconnected. Thereafter he started weeping; he tried to contact on telephone at Kotputali and he was told that Doctor is examining Kavita and there is nothing to be worried. He again contacted on telephone but he did not receive any satisfactory reply; thereafter, he asked his son Manoj, younger brother Rajendra Prasad and younger son-in-law Pramod Agrawal to proceed for Kotputali. Thereafter he received one another telephonic call at about 1 P.M. that his daughter Kavita has been admitted in the hospital at Kotputali. He along-with his relatives also went to Kotputali in mini-bus. It was further stated // 5 // that at about 2.30 PM they reached the Government Hospital at Kotputali and came to know that no patient in the name of Kavita was admitted there. Thereafter he went to the Police Station Kotputali and came to know that Kavita has been killed and her dead-body is lying at her matrimonial home. The In-charge, Police Station Kotputali, is also at the place of incidence i.e. the residence of the accused. On their reaching at the matrimonial house of Kavita, his younger brother told him that Kavita was killed in the morning itself. He made an enquiry about the incident but Smt. Shakuntla, the mother-in-law of Kavita, Miss Sunita, the unmarried sister-in-law, Smt. Urmila, the married sister-in-law, Sanjay (Devar) and husband Akhilesh did not give any satisfactory reply and told that they had a courage to kill Kavita and thereafter all of them started beating the mother of Kavita. Thereafter he went in the room with the police where dead-body of Kavita was lying and he came to know that she was killed by throttling (strangulation) and thereafter the dead-body was put to flames. They saw that her tongue was protruded, her nostrils were bleeding; face was burnt; there was no sign of flame in the room anywhere. It was further stated that his daughter has been killed by throttling and thereafter put to flames after // 6 // pouring kerosene oil on her body. It was further stated that on 22nd June, 2000, on telephone received by him from Kotputali, he heard his daughter telling about ill-treatment of her in- laws and regarding demand of four lac rupees. He wanted to go to Kotputali on 22nd June, 2000 itself but his son-in-law Akhilesh and his brother advised him not to come at Kotputali. Kavita also told him that there is no need of his coming at Kotputali. It was also stated in the report that on 17th April, 1998 his daughter Kavita was married with Akhilesh S/o Dwarka Prasad; the marriage took place at Jaipur; the mediator was Shri Radheyshyam Gupta - the uncle of Akhilesh. He agreed to spend five to six lac rupees in the marriage but Radheyshyam Gupta, Dwarka Prasad, Radhey Mohan Gupta, Akhilesh and Sanjay manipulated the things in such a manner and he was compelled to spend thirteen to fourteen lac rupees in the marriage. He gave a sum of Rs.1,50,000/- for furniture, Rs.2,50,000/- for Maruti Car, Rs.1,00,000/- for clothes but neither they purchased furniture or clothes nor Maruti Car for his daughter. The other details of the items, which were given in dowry, were also mentioned in the report. On the basis of the above report, the police registered F.I.R. No.407/2000 against accused-persons for the offence under Sections 498-A, 304-B and 201, // 7 // IPC., and commenced investigation. After completion of investigation, the police filed a charge-sheet against Akhilesh, (the husband), Sanjay (Devar – younger brother- in-law), Dwarka Prasad (father-in-law), Smt. Shakuntla Devi (mother-in-law), Miss Sunita (Nanad – unmarried sister-in-law) and Smt. Urmila (Nanad – married sister-in-law) for the offence under Sections 304-B, 498-A, 201 and 120-B, IPC, in the Court of Additional Chief Judicial Magistrate, Kotputali, District Jaipur. The case was committed for trial to the Court of Sessions Judge, who, vide its order dated 18th September, 2000, transferred the same for trial to the Court of Additional District & Sessions Judge (Fast Track) No.1, Jaipur District, Jaipur. The learned trial court framed charges against all the accused-persons for the offence under Section 302 read with Section 120-B, IPC and, in alternative under Section 304-B, 498-A and 201/120-B, IPC. The accused-persons denied the charges and claimed to be tried. In support of its case, the prosecution examined PW-1 Krishanavtar, PW-2 Rajendra Prasad, PW-3 Sushil Kumar, PW-4 Surendra Prasad, PW-5 Dr. Birbal Yadav, PW-6 Bindu Devi, PW-7 Parmeshwari, PW-8 Sharwan Singh, PW-9 Hirawati Devi, PW-10 Pinky Agrawal, PW-11 Mahesh Kumar, // 8 // PW-12 Manoj Kumar Agrawal, PW-13 Ramavtar Gupta, PW-14 Suresh Chand, PW-15 Raju Saini, PW-16 Pawan Kumar Agrawal, PW-17 Prem Chand, PW-18 Dr. Vijay, PW-19 Yunus Ali Khan, PW-20 Sushil Kumar, PW-21 Dr. Ashvini Goyal, PW-22 Nagarmal Mahajan, PW-23 Pramod Agrawal, PW-24 Shivram, PW-25 Raghuveer Singh, PW-26 Sukhdeo Meena, PW-27 Gopi Singh, PW-28 Sunil, PW-29 Raghuveer Dayal, PW-30 Govind Narain and PW-31 Chain Singh Rajpurohit, and produced documentary evidence Exhibit P-1 Written-report, Exhibit P-2 F.I.R., Exhibit P-3, Receipt of dead body, Exhibit P-4 to Exhibit P- 14 Telephone Bills and Receipts, Exhibit P-15 to Exhibit P-17, pre-invitation and invitation letters, Exhibit P-18 inquest-report, Exhibit P- 19 seizure-memo of one pair of silver anklet and two ear-rings, Exhibit P-20 Postmortem Report, Exhibit P-21 memo of developing-chance-print- photo, Exhibit P-22 to Exhibit P-27 arrest memo of accused, Exhibit P-28 statement under Section 161 Cr.P.C. of Suresh Chand, Exhibit P-29 Written-report, Exhibit P-30 to Exhibit P-37 photos and negatives, Exhibit P-38 to Exhibit P- 39 Site-Plan, Exhibit P-40 to Exhibit P-42 seizure-memo, Exhibit P-43 seizure-memo of agreement, Exhibit P-44 agreement, Exhibit P-45 to Exhibit P-47 seizure-memo of Kisan Vikas Patra, Exhibit P-48 to Exhibit P-49 statements under Section 161 Cr.P.C. of witnesses Sushil // 9 // Sharma and Nagar Mal, Exhibit P-50 statement under Section 161 Cr.P.C. of Shivram, Exhibit P- 48 FSL Report, Exhibit P-51 to Exhibit P-66 Finger print of accused, Exhibit P-67 and Exhibit P-68 FSL Receipt, Exhibit P-69 statement under Section 161 Cr.P.C. of Raghuveer Dayal, Exhibit P-70 to Exhibit P-72 Photo's negatives, Exhibit P-73 to Exhibit P-77 Photocopies of thumb impression, Exhibit P-78 FSL Report, Exhibit P-79 Report of Finger Print Bureau, Exhibit P-80 Letter sent by the SP to Director of Finger Print, Exhibit P-81 court statement of Radheyshyam Gupta. Thereafter the statement of the accused-persons were recorded under Section 313 Cr.P.C., wherein it was stated that the prosecution evidence is false; a written- explanation was also given by accused Akhilesh. The accused-persons examined DW-1 Trilok Chand, DW-2 Radhey Shyam Gupta, DW-3 Ramesh Kumar Jindal and DW-4 Manju Mathur; and produced documentary evidence Exhibit D-1 statement of Rajendra Prasad, Exhibit D-2 to Exhibit D-12 statements of Rajendra Prasad, Sushil Kumar, Surednra Prasad, Bindu Devi, Parmeshwari, Hirawati Devi, Pinky, Mahesh, Manoj, Ramaotar, Pramod Agrawal recorded under Section 161 Cr.P.C. The trial court, vide its impugned judgment and order, acquitted all the accused- persons, except accused Akhilesh, from all the // 10 // charges and convicted and sentenced accused Akhilesh for the offence under Sections 302, 498A and 201 IPC and sentenced, as mentioned above. Shri S.R. Bajwa, learned Senior Advocate, appearing on behalf of the accused persons argued that the trial court has committed an illegality in convicting accused Akhilesh for the offence under Sections 302, 498A and 201 IPC; the finding of the learned trial court in this regard is absolutely illegal, perverse; there is no discussion specifically about conviction under Section 498A IPC in the entire judgment and, as such, the trial court committed an illegality in convicting and sentencing the accused Akhilesh under this offence. The learned counsel for the accused persons contended that so far as offence under Sections 304B and 120B IPC are concerned, the learned trial court has acquitted all the accused-persons including accused Akhilesh from these offences and said finding of the trial court has attained finality. The accused Akhilesh was also charged for the offence under Sections 304B and 120B IPC but the trial court has acquitted him from both the offences. Although, the State as well as the complainant, both, have preferred appeal/revision challenging the order of acquittal of other accused persons, // 11 // but have not challenged the order of acquittal of accused Akhilesh, who was the main accused as per prosecution case, of the offence under Sections 304B and 120B IPC and, in these circumstances, the finding of the trial court about offence under Sections 304B and 120B IPC has attained finality and no interference in it should be and can be made in the order of the trial court in respect of other accused persons also. In alternative, he contended that the prosecution tried to lead evidence about demand of dowry for the period before and at the time of marriage and the allegations have been levelled against the husband, father-in-law and uncle-in-law of the deceased. He contended that so far as father-in-law Dwarka Prasad is concerned, he has already died during the trial of the case. The uncle-in-law was not made accused in the case. The husband Akhilesh has already been acquitted for the offence under Section 304-B IPC and there is no appeal or revision against his acquittal by the State or complainant from the offence under Section 304B IPC. He also read the statements of prosecution witnesses and pointed out that as per the prosecution story there was demand by the accused in December, 1998 of some amount to meet out the expenses of marriage of uncle's daughter; thereafter in January, 1999 demand of // 12 // money was made to make payment of electricity bills; thereafter in March, 2000 a demand of Seven Lac Rupees was made to establish a factory by accused Akhilesh, the husband of deceased, at Bagru; then demand was made to meet out the medical expenses incurred on treatment of Dwarka Prasad, the father-in-law of the deceased. He contended that PW-1 Krishnavtar, in his statement, has admitted that although above demands were made but no amount was given by him to Kavita or any member of her in-laws. He also contended that although there was no such demand of money and even if there was some demand then no amount was paid to them and further that even for the sake of argument it is admitted, although it was not admitted, then the above demand does not fall within the definition of “dowry” and cannot be construed as demand of dowry within the definition of “dowry” as defined under the provisions of the Dowry Prohibition Act. He further contended that there is allegation about mortgage of Kisan Vikas Patra which were in the name of deceased Kavita and demand of Four Lac Rupees by husband Akhilesh to make the payment to one Mr. Ram Kumar Lahoti under one agreement and the said demand cannot be said to be a demand of dowry, therefore, the learned trial court was fully justified in acquitting all the accused persons // 13 // including accused Akhilesh from the charge under Section 304B IPC. He also contended that there is no evidence about all these demands also. The prosecution witnesses have not stated specifically as to when and before whom the said demand was made; the prosecution witnesses have also not stated specifically as to who made the said demands of the amount for the purpose as mentioned above. He also referred the statement of accused Akhilesh recorded under Section 313, Cr.P.C., particularly the written-statement given by him wherein it was stated that he is innocent and has been falsely implicated in the case; and that all the witnesses have stated against him at the instance of Krishnavtar; his marriage took place on 17th April, 1998 and Krishnavtar incurred the expenses in the marriage at his own; he and his wife Kavita both were living in Jaipur in a house at Bani Park; he established a factory at Bagru (District- Jaipur) and his family members were living in Kotputali; his brother Sanjay was residing in Jaipur in another rented house as he was preparing for RAS Examination. The learned senior counsel further contended that accused Akhilesh, in his statement, has specifically stated that he visited Kotputali on 20th June, 2000 for 'mundan' ceremony of his son; the ceremony took place on // 14 // 21st June, 2000; and, he and his wife Kavita both planned to come back to Jaipur on 22nd June, 2000 but all of a sudden his father fell ill and therefore they could not come to Jaipur. On 22nd June, 2000 at about 5.00 PM he received one telephonic call from his father-in-law Krishnavtar who told him that an iron Almira is ready but could not be sent to their house as their house at Jaipur was found locked. He showed his ignorance about any Almira and told him that he does not want any Almira and asked him to keep the same with him; he further told that his father is not well and asked his father-in-law to send Manoj to make an enquiry about availability of Dr. Govil at Jaipur; thereafter Shri Krishnavtar assured him to make an enquiry in this regard; thereafter he reprimanded his wife as to why she did not wait for Almira and why asked her father for the same and told her that he will not accept the said Almira; thereafter Kavita told him that she had demanded some money from her father as a loan but he refused to give the same; thereupon he reprimanded Kavita on her demanding anything from her father. On 23rd June, 2000 also he repeated the same thing to Kavita; thereafter he received an information in Tehsil, as he visited there, from son of Surji Devi that Kavita got burnt. // 15 // The learned counsel for the appellant also contended that there is overwhelming evidence of the prosecution itself that Kavita was seen alive up-to 9.00 AM on 23rd June, 2000 and it is wrong to say that she was killed in the intervening night of 22nd and 23rd of June, 2000. He referred the statements of PW-17 Premchand, PW-24 Shivram and DW-3 Radheyshyam Gupta, and contended that from their statements it is clear that Kavita was seen alive up-to 9.00 AM on 23rd June, 2000 therefore there was no question of killing her during the intervening night of 22nd and 23rd of June, 2000. He also referred the statements of PW-17 Premchand, PW- 24 Shivram, DW-3 Radheyshyam Gupta and DW-4 Ramesh Kumar, and contended that from these it is clear that accused Akhilesh was not inside the house when Kavita died or got burnt. He further contended that accused Akhilesh got established his factory at Bagru and he was living separately in Jaipur with his wife Kavita. In support of his contention, the learned counsel for the accused Akhilesh referred the contents of the F.I.R. and the statements of PW-1 Krishnavtar, PW-2 Rajendra Prasad, PW-7 Parmeshwari, PW-10 Pinki Agrawal, PW-12 Manoj Kumar Agrawal, PW-14 Sureshchand, PW-16 Pawan Kumar Agrawal and PW-17 Premchand. The learned counsel for the accused // 16 // further contended that there was no motive established in the present case to kill Kavita and in absence thereof the entire prosecution story is liable to be thrown out. The trial court itself has recorded a finding that no person demanded any dowry at any time. The learned counsel for the accused- appellant further contended that the trial court has convicted the accused Akhilesh for the offence under Section 302 IPC on the basis of medical-evidence, finger-print evidence, agreement (Exhibit P-44) and telephonic calls. He contended that the prosecution evidence in this regard was not sufficient to connect the accused with the crime. He contended that the prosecution has failed to prove the case against the accused Akhilesh beyond all reasonable doubts. He referred the statements of PW-5 Dr. Birbal Yadav, who admitted that the immediate shock from vasovagal-inhibition causes instant death. He also admitted that if a person got burnt and receives instant shock then he can die immediately due to vasovagal-inhibition. He further admitted that if burnt-body is taken from one place to another place and if there is mishandling then hide-bone and cartilage-bone can be broken. He referred the Modi's Medical Jurisprudence, particularly the causes of death and contended that severe pain and marked // 17 // protein rich fluid loss from extensive burns which result in increased capillary permeability, cause shock and produce a feeble pulse, pale and cold skin, and hypotension resulting in death instantaneously or within 24 to 48 hours. He further contended that persons removed from houses destroyed by fire are often found dead from suffocation due to the inhalation of smoke, carbon monoxide and other irrespirable gases, which are the products of combustion. In such a case, burns found on the body are usually postmortem. He, therefore, contended that the conclusion drawn by the Medical Board about cause of death of Kavita was without proper application of mind and the same is contrary to the settled medical jurisprudence and the trial court committed an illegality in relying upon the same. He contended that the opinion of the Doctors about the cause of death is mainly based on external appearance of the dead-body, whereas the external appearance of burns may vary according to the nature of the substance used to produce them, and the period of exposure. The minimum temperature capable of causing a burn is about 44 degree Celsius for an exposure of about five to six hours and exposure for two seconds is sufficient at 65 degree Celsius. If the body, of a victim dying of thermal burns, continues to remain exposed to // 18 // flame and intense heat, some or all of the ante- mortem burns covering the body of such a victim, may exhibit the appearance of postmortem burns. He further argued that the trial court has wrongly relied upon fingerprint Bureau Report (Exhibit P-79), according to which fingerprint of accused Akhilesh of left index finger was found on 'Bhagona' (vessel) which was lying in the room i.e. the place of incident. He contended that the inquest-report was prepared by the Additional District Magistrate on 23rd June, 2000 itself but there is no such reference therein of said 'Bhagona'. He contended that it was recovered after five days i.e. on 27th June, 2000, therefore, the same should not have been relied upon by the trial court in evidence. He further contended that the said vessel was not produced in the Court, which was the primary evidence and in absence of it the secondary evidence should not have been taken into consideration. He further contended that there is no evidence as to whether the said vessel (Bhagona) contained any kerosene. There is no evidence as to whether the said vessel was used for committing the crime. There can be other purpose of it also even if it is assumed that the vessel was lying in bed-room. He, therefore, contended that the evidence relating to fingerprint was also not proved beyond // 19 // reasonable doubt against the accused Akhilesh. He further contended that the trial court committed an illegality in connecting the crime with the agreement (Exhibit P-44), which was not proved in the case. He contended that it was not recovered from the custody of the accused but it was handed over by grandfather of accused Akhilesh. There are only two parties to the said agreement i.e. the first party Shri Ram Kumar Lahoti (the owner of Balaji Gases) and second party the accused Akhilesh. Neither Shri Ram Kumar Lahoti was examined in the present case to prove the said agreement nor the signatures of the parties on the said agreement were got proved, therefore, in case the said agreement is discarded from the said evidence then there is no other evidence to prove the reason or background for so-called demand of four lac