1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR J U D G M E N T 1.Mannu Bai wife of Duli Chand 2.Durga Shankar alias Pappu S/o Duli Chand Vs. State of Rajasthan through P.P. S.B.Criminal Appeal No.1168/2005 under Section 374 of the Code of Criminal Procedure against the judgment dated 29.11.2005 passed by Additional Sessions Judge (Fast Track), Jhalawar in Sessions Case No. 117/2005 Date of Judgment 29thJanuary, 2010 PRESENT HON'BLE MR. JUSTICE K.S. CHAUDHARI Mr. Sanjay Mehrish for the appellant. Mr. Laxman Meena Public Prosecutor for State. **** BY THE COURT: This appeal has been filed against the judgment dated 29.11.2005 passed by Additional Sessions Judge (Fast Track) Jhalawar in Sessions Case 117/2005 by which he convicted accused- appellants under Section 304-B and 201 IPC and 2 sentenced to undergo ten years rigorous imprisonment under Section 304-B IPC and sentenced to two years rigorous imprisonment under Section 201 IPC and further observed that both the sentences shall run concurrently. By this judgment accused-Suresh Chandra, Mahesh Kumar, Ratan Lal and Duli Chand alias Dulhe Singh were acquitted under Section 201 IPC. Brief facts of the prosecution case are that PW8-Narayan lodged FIR Ex.P/10 before S.P.Jhalawar and stated that he married his daughter Hema with accused Durga before 3 to 4 years and Hema was going to her in-law's house since last two years, but her husband-Durga and mother-in-law Mannu Bai used to beat her and demand dowry. On previous Holi Hema came to her house and revealed this fact, but lateron he sent back Hema with her husband's elder brother Suresh. After two days of murder of Hema, he was informed that his daughter Hema has died then he went to her in-law's house where Gordhan Lal and 3 one person son of Bhagatji informed him that accused-Durga and Mannu Bai were abusing and beating Hema in the night of 11th June, 2005 and lateron murdered her and in the morning she has been cremated. He went to Police Station Raipur, but FIR was not recorded, then he moved application before S.P. and S.P. ordered to inquire the matter even then case has not been registered. This report was sent by S.P.Jhalawar to Police Station Raipur, but it appears that before this report was received by Police Station Jhalawar, on another previous report, Parcha Ex.P/14 was recorded on which Check Ex.P/15 was prepared. After completion of investigation challan under Section 498-A,304-B and 201 IPC was filed against the accused-appellants and four acquitted persons in the Court of Judicial Magistrate, Pirawa. Case was committed to the Court of Sessions Judge, Jhalawar which was transferred to Additional Sessions Judge (Fast Track). Charge 4 under Section 498-A, 304-B and 201 IPC were framed against accused-appellants and charge under Section 201 IPC was framed against other 4 accused-persons to which they denied. During trial 14 witnesses were examined and after recording statements of accused-persons under Section 313 Cr.P.C. and hearing arguments, the accused- appellants were convicted and sentenced as aforesaid and other four accused were acquitted of the charge levelled against them. Heard learned counsel for the parties and perused the record. Learned counsel for the appellants submitted that there is no iota of evidence against the accused-appellants that any demand of dowry was made or deceased was subjected to cruelty, even then, learned trial Court has committed error in convicting the accused-appellants, hence, appeal may be accepted and the accused- appellants may be acquitted of the charges levelled against them. 5 On the other hand, learned Public Prosecutor submitted that by the evidence of parents of deceased, prosecution has proved its case beyond reasonable doubt and the trial Court has not committed any error in convicting and sentencing the accused-appellants, hence, appeal of the accused-appellants may be dismissed. Perusal of record reveals that PW8- Narayan and PW9-Mehtab Bai, who are father and mother of deceased, have supported the prosecution case to some extent. Rest of the other witnesses have not supported the prosecution case and most of them have turned hostile. PW1- Gordhan has stated that he heard in the village that Durga's wife has died, but he does not know any other thing. He denied his police statement Ex.P/1. As per report Ex.P/10 and Parcha Ex.P/14 PW1-Gordhan revealed to complainant about quarrel on the night of 10th or 11th June, 2005 whereas PW1-Gordhan has totally denied any incident. PW2-Phool Singh, who is neighbourer of 6 accused-Durgashankar, stated that he is not aware how deceased died. After declaring him hostile, he denied that accused-persons used to quarrel with deceased and cremated her to do away evidence of offence. PW3-Hari Singh, who is neighbourer of accused, has stated that accused- Durga used to keep his wife Hema in good state of affairs. He has further stated that accused-persons never beat or quarrel with Hema in his presence. This witnesses has also been declared hostile. PW4-Vikram, who is maternal uncle of deceased, has stated that he has not heard about any occurrence or about beating of Hema by accused- persons. He has also been declared hostile and admitted in his cross examination that Hema, though she was his niece, never told him that accused-persons used to beat her. PW5-Mangi Lal, PW6-Kalu Lal, PW11-Ram Singh have also denied about any quarrel between the deceased and accused-persons. PW11-Ram Singh stated that accused-Durga and his wife Hema used to live 7 peacefully and he has never seen any quarrel between them. Thus, it becomes clear that none of the witnesses except mother and father of the deceased support the prosecution story. PW8-Narayan, who is father of deceased, has stated that he married his daughter-Hema with accused-Durgashankar before 3 to 4 years and before two years she used to go to her husband's house. Whenever Hema used to come to her parents' house she used to tell him that her husband and mother-in-law used to quarrel with her on two counts namely; nothing has been given in dowry and she has not given birth to child, ultimately she was ousted by her in-laws and came at his house. He further stated that she was also asked to bring motorcycle whenever she returns back. He further stated that when elder brother of Durga Shankar came to take back Hema, he sent Hema with Suresh. Lateron Suresh and Durgashankar intimated him that Hema has died yesterday. Then he reached to her daughter's 8 in-laws house, but by that time Hema had been cremated. He further stated that Gordhan and Chain Singh informed him that they heard cries of Hema in the night and in the morning she was cremated. He further stated that Hema revealed him that in-law's used to demand dowry and Hema's husband after consuming alcohal, used to beat her. In cross examination he admitted that accused-Durga's brother's daughter was married to her brother in-law's son and in this way there was cross relation. He admitted that he lodged report just after two days of occurrence. In one report he stated 10th June, 2005 as date of death of his daughter whereas report Ex.P/10 which was given on 21st June, 2005 contains 11th June, 2005 as date of death of his daughter. He has denied this fact that cause of dispute was only non delivering child, but dowry was also cause of quarrel, but he admitted that previously he never lodged report about demand of dowry. He has admitted that his real brother-in-law lives in the 9 village of Hema's in-laws but Hema could not reveal all these facts to her Mama as she was not allowed to go there. He has also denied that Hema used to suffer from stomach pain. He has denied that dowry was not demanded and there is no custom of dowry in his community. He has also denied this fact that in marriage rather he received dowry from accused-persons. PW9-Mehtab Bai has also supported PW8- Narayan, but has admitted in her examination in chief that they got information on telephone about death of their daughter in the night itself and on next day they reached there by 10-11. a.m., by that time their daughter had already been cremated. In cross examination she resiled from her examination in chief and stated that they got information about death on next day of the incident. She admitted that on account of cross relation no dowry was given. She also admitted that her brother-Vikram also resides in the village of Hema's in-laws but denied that dowry was not 10 demanded by accused-persons from Hema. She also denied that Hema died on account of pain in stomach. It is admitted case that PW8-Narayan PW9-Mehtab Bai are not eye witnesses to the occurrence and in their presence no demand of dowry was made by accused-appellants. As per statement of PW9-Mehtab Bai it becomes clear that on account of cross relation between the parties no dowry was given by any side. It is also admitted that accused-Durga Shankar and her elder brother-Suresh intimated on telephone to these witnesses about death of Hema. It is also admitted that before report Ex.P/10, no report regarding demand of dowry was lodged by complainant against accused-persons. It is also admitted that Narayan's real brother in law Vikram also resides in the village of Hema's in-laws and PW4-Vikram has denied about any occurrence and has in express words denied the fact that accused- persons have demanded dowry, beaten to Hema 11 and caused her death. In the absence of any previous report regarding demand of dowry and in the absence of exchange of dowry in marriage, it cannot be inferred that after marriage any demand of dowry particularly of motorcycle was made by accused- appellants from deceased-Hema specially when demand of motorcycle has not been mentioned in report Ex.P/10 and has not been corroborated by PW9-Mehtab Bai. Intimation on telephone by accused-Durgashankar and his elder brother Suresh about the death of Hema to PW8-Narayan and PW9-Mehtab Bai shows that just after death, fact of death of Hema was brought to the notice of her parents and in the morning she was cremated and in such circumstances it cannot be inferred that body was cremated to do away evidence of offence. There is no iota of evidence that Hema was subjected to cruelty or harassment by accused-appellants for or in connection with 12 demand of dowry and in such circumstances accused-appellants cannot be held guilty under Section 304-B IPC as held by Hon'ble Apex Court in Biswajit Haider v. State of West Bengal reported in 2008 (1) SCC, 202. The prosecution has failed to prove offence under Section 201 IPC against the accused-persons as before cremation they intimated to the parents of deceased about death of Hema. None other witness examined by the prosecution has supported the prosecution story. Chain Singh, who is alleged to have informed Narayan about the occurrence, has not been examined by the prosecution and there is delay of 10 days in lodging FIR and no reasonable explanation has been given by the prosecution regarding delay in lodging FIR. DW1-Devi Singh and DW2-Nandu Bai, who are neighbourer of accused-appellants, have also denied demand of dowry and quarrel in connection with demand of dowry. It appears that Hema died on account of natural death and in such circumstances accused- 13 persons are entitled to acquittal. Consequently, SB Criminal Appeal No.1168/2005 is accepted and the judgment of the trial Court dated 29.11.2005 is set aside and accused-appellants-Mannu Bai wife of Shri Dulichand and Durgashankar alias Pappu son of Shri Dulichand are acquitted of the offence under Section 304-B and 201 IPC. The accused- appellants are in judicial custody and they be released forthwith, if not wanted in any other criminal case. (K.S.CHAUDHARI), J teekam 14