Monthly Archives: July 2016

Fake bigamy after loosing 498a cocktail! No proof against husband or 2nd accused! Quashed, GujHC

Woman files a bigamy case on her husband and another woman some seven years after alleged second marriage. It’s Pertiment to note, that her bigamy case is filed SOON after she lost her earlier 498a cocktail!! Gujarat HC quashes her unproven Bigamy allegations after noticing the abuse of the process of law !!

“….11. In the present case, no material is produced by the complainant in support of her allegations that the present applicant got married to accused no.1. It is also not stated when the marriage has taken place. Thus, in absence of any material, it cannot be said that the present applicant has, in any way, abetted accused no.1. Even assuming that such marriage has taken place in the year 2005, the impugned complaint has been filed on 13.6.2012 and that too when learned Magistrate has acquitted the original accused no.1 and in-laws in the complaint which was filed under Sections 498A, 323, 506(2) and 114 of Indian Penal Code by an order dated 12.5.2012.

12. In view of the aforesaid facts and circumstances of the present case, this Court is of the opinion that the complainant has abused the process of the Court and therefore in the interest of justice, this Court is inclined to exercise the powers vested under Section 482 of the Code……”

#Abuse_of_process_of_Law #494Abuse #fake498 !! #fake_BigamyCase

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 7198 of 2013

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI

DAKSHBEN MAFATLAL PATEL….Applicant(s)
Versus

STATE OF GUJARAT & 1….Respondent(s)

Appearance:
MR RAXIT J DHOLAKIA, ADVOCATE for the Applicant(s) No. 1
HCLS COMMITTEE, ADVOCATE for the Respondent(s) No. 2
MR SHAILESH C SHARMA, ADVOCATE for the Respondent(s) No. 2

MS RITA CHANDARANA, APP for the Respondent(s) No. 1

CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI

Date : 07/07/2016

ORAL JUDGMENT

 

  1. This application is filed under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as `the Code’), wherein the applicant has prayed that the complaint being Miscellaneous Application No.531 of 2012 registered with 7th Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Surat for the offences punishable under Sections 494, 504, 506(2) and 114 of Indian Penal Code and the process issued thereunder be quashed and set aside qua the applicant.
  2. Heard learned advocate Mr.Raxit Dholakia for the applicant, learned APP Ms.Rita Chandarana for respondent no.1-State of Gujarat and learned advocate Mr.Shailesh Sharma for respondent no.2- original complainant.
  3. Learned advocate Mr.Dholakia appearing for the applicant submitted that the complaint being Miscellaneous Application No.531 of 2012 is filed against the present applicant and four others under Sections 494, 504, 506(2) and 114 of Indian Penal Code interalia alleging that the accused no.1-Mukeshbhai Patel and the original complainant had entered into a wed-lock on 7.3.1997 and in spite of that marriage being in existence, the accused no.1 got married to the present applicant-accused no.2 and thereby the applicant has committed offences punishable under Section 494 of Indian Penal Code. Learned Magistrate has passed the order of issuance of process against the present applicant and other accused.
  4. Learned advocate Mr.Dholakia mainly contended that the offence punishable under Section 494 of Indian Penal Code is not applicable qua the present applicant. The same is applicable to the accused no.1 even if it is believed that accused no.1 got married to the accused no.2-present applicant. He, thereafter, submitted that there is no allegation against the applicant that she has abused the complainant. He therefore submitted that no material is produced along with the complaint that the accused no.1 got married to accused no.2. It is further submitted that after the order of acquittal is passed by learned Magistrate on 1.5.2012 in Criminal Case which was filed under Sections 498A, 323, 506(2) and 114 of Indian Penal Code against the husband and in-laws of the complainant, on 13.6.2012 i.e. within a few days of the order of acquittal, the impugned complaint is filed. Therefore, it is nothing but a gross abuse of the process of the Court wherein the present applicant is falsely implicated. He, therefore, prayed that the impugned complaint be quashed and set aside qua the applicant.
  5. Learned advocate for the applicant placed reliance on the decision rendered by the Allahabad High Court in the case of Rupa & Others V/s State of U.P. & Another, reported in 2013 LawSuit(All)2139.
  6. Learned advocate for the respondent no.2-original complainant submitted that the ingredients of the alleged offences are made out in the impugned complaint and therefore this Court may not exercise the powers under Section 482 of the Code.
  7. Learned APP Ms.Chandarana has supported the submissions canvassed on behalf of learned advocate for respondent no.2.
  8. I have considered the submissions canvassed on behalf of learned advocates for the parties. I have gone through the material produced on record. Section 494 of Indian Penal Code provides as under: “494. Marrying again during lifetime of husband or wife- Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Exception – This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.”
  9. From reading the aforesaid section, it is clear that the complaint under Section 494 of Indian Penal Code can be filed against the husband and not against the present applicant who is alleged to have got married with accused no.1. The complainant has not produced any material suggesting that the accused no.1 got married to the present applicant. Thus, ingredients of alleged offences are not made out against the applicant.
  10. In the case of Rupa & Others (supra), the Allahabad High Court has held in paragraphs 38, 39, 40, 41, 44, 45 as under:
    • “38. Now the question arises as to whether the applicants can be prosecuted for the offence under section 494 IPC or not. Section 494 IPC is as follows:-
    • xxxxxx
    • Section 494 IPC applies to a person who, having a husband or wife living, remarries. In the facts of the instant case, the allegation is that Rajesh Kumar Deorar remarried during subsistence of his first marriage with opposite party no.2. In these circumstances, only Rajesh Kumar Deorar can be prosecuted for the offence punishable under section 494 IPC. The person, with whom second marriage is performed in violation of section 494 IPC, has not been made liable for punishment in this Section.
    • The contention of learned counsel for opposite party no.2 is that even though the applicants cannot be prosecuted directly for the offence punishable under section 494 IPC, they can be prosecuted for having abetted Rajesh Kumar Deorar for committing an offence under section 494 IPC with the help of section 114 IPC.
    • Abetment is defined in section 107 as follows:- “107 IPC. Abetment of a thing – A person abets the doing of a thing, who – First.- Instigates any person to do that thing; or Secondly.- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.- Intentionally aids, by any act or illegal omission, the doing of that thing.”
    • 39. Explanation 1.- A person who, by wilful representation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
    • 40. Explanation 2.- Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.
    • 41. For abetment of an offence, it is necessary that the abettor must have either instigated any person to do such an offence or must have engaged in a conspiracy for doing such an illegal act. In the instant case, there is no allegation against the applicants that they instigated Rajesh Kumar Deorar to commit an offence punishable under section 494 IPC. There is no allegation that the applicants engaged themselves in any criminal conspiracy to commit an offence under section 494 IPC. It is the case of applicant no.1 that she did not know about any prior marriage of Rajesh Kumar Deorar with opposite party no.2. Her presence at the time of incident dated 7.12.2010 has been falsified as held earlier. In the absence of any knowledge of prior marriage of Rajesh Kumar Deorar, the applicants cannot be held guilty for the offence under section 494 IPC read with section 109 or 114 IPC.
    • Xxxxxx
    • 44. In the instant case, there is no evidence to show that there was any intentional abetment on the part of the applicants to commit an offence under section 494 IPC. Mere presence of applicants no.2,3 & 4 at the time of marriage of applicant no.1 with Rajesh Kumar Deorar does not make them criminally liable without any criminal intent on their part.
    • 45. In these circumstances, this Court is of the opinion that Rajesh Kumar Deorar and his family members as well as Chhotey Singh and Ram Sajan, who were present at the house of Rajesh Kumar Deorar on 7.12.2010, may be presumed to have the knowledge of alleged earlier marriage of Rajesh Kumar Deorar with opposite party no.2 and may be prosecuted for the offence punishable under section 494 IPC or its abetment, but as far as applicants are concerned, there is no material to suggest that they had any prior knowledge of the alleged marriage between the opposite party no.2 and Rajesh Kumar Deorar and, therefore, they cannot be prosecuted the offence under section 494 IPC read with section 109 or 114 IPC”.
  11. In the present case, no material is produced by the complainant in support of her allegations that the present applicant got married to accused no.1. It is also not stated when the marriage has taken place. Thus, in absence of any material, it cannot be said that the present applicant has, in any way, abetted accused no.1. Even assuming that such marriage has taken place in the year 2005, the impugned complaint has been filed on 13.6.2012 and that too when learned Magistrate has acquitted the original accused no.1 and in-laws in the complaint which was filed under Sections 498A, 323, 506(2) and 114 of Indian Penal Code by an order dated 12.5.2012.
  12. In view of the aforesaid facts and circumstances of the present case, this Court is of the opinion that the complainant has abused the process of the Court and therefore in the interest of justice, this Court is inclined to exercise the powers vested under Section 482 of the Code.
  13. In view of the aforesaid discussion, this application is allowed. The complaint being Miscellaneous Application No.531 of 2012 registered with 7th Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Surat and the process issued thereunder are quashed and set aside qua the present applicant. Rule is made absolute.

 

(VIPUL M. PANCHOLI, J.)

Srilatha

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How a DV case on husband & SEVEN more is sent back by Allah.HC ! No DV against females & ppl NOT in dom. relation

Section 2(q) of DV Act : “respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person..” .

“…Thus respondent, against whom proceeding should proceed, must be adult male person, who is or has been in domestic relationship with aggrieved person. In present matter, applicants 3, 4, 5, 6 and 7 (who are opposite parties no. 2 to 7 of original case) are ladies. ..”

“It is directed that trial court shall consider this point before proceeding before these ladies-applicants/accused. It was pointed out that applicant no. 8/OP No.- 8 Zahid resides in different district Moradabad and has never been in domestic relationship with applicants of the case. Before proceeding against him and other accused, the propriety of carrying out proceedings in light of above mentioned provisions will be considered by trial court……”

#DV_case #DVCase_on_eight_ppl !! #WhyNotOneDozen !! ?? #FakeDV #fakeDVisMoolah

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HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. – 48

Case :- APPLICATION U/S 482 No. – 19953 of 2016

Applicant :- Mohd. Alam @ Raja And 7 Ors

Opposite Party :- State Of U.P. And Another

Counsel for Applicant :- Ved Prakash Pandey

Counsel for Opposite Party :- G.A.

Hon’ble Pramod Kumar Srivastava,J.

Heard learned counsel for the applicants, learned AGA and perused the records.

The proceedings of Complaint Case No. 339/2014, Sections 18/12, 20, 21, 23 and 31 of Protection of Women from Domestic Violence Act? has been challenged.

Under these provisions, aggrieved person may be women or child under the age of 18 years. Applicants of said complaint case is wife and his three years’ son. The proceeding under said Act can be carried out against the ‘respondent’. The definition of ‘respondent’ is given in Section 2 (q) of said Act is as under:- “Section 2(q)-, “respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

Thus respondent, against whom proceeding should proceed, must be adult male person, who is or has been in domestic relationship with aggrieved person. In present matter, applicants 3, 4, 5, 6 and 7 (who are opposite parties no. 2 to 7 of original case) are ladies. It is directed that trial court shall consider this point before proceeding before these ladies-applicants/accused. It was pointed out that applicant no. 8/OP No.- 8 Zahid resides in different district Moradabad and has never been in domestic relationship with applicants of the case. Before proceeding against him and other accused, the propriety of carrying out proceedings in light of above mentioned provisions will be considered by trial court.

With these observations, this application is disposed of.

Order Date :- 11.7.2016

SR


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No dowry or cruelty soon b4 wife’s death! No evidence except bald statements! ALL acquitted in 306, 304B, 498A. Raj HC

Sad story of how a husband is acquitted 21 years AFTER the death of his wife. The Hon. HC scrutinizes the evidence and notices that there is NO evidence to prove either dowry demand or cruelty linking to the death !!

#SoonBeforeDeath #ProsecutionToProve #Cruelty_SoonBeforeDeath #soon_before_death_304B_(1)_of_IPC #acquittal #acquittalIn304B

The Honourable HC appreciates states “….. On an overall analysis of the entire sequence of events, … it is apparent that prosecution has failed to produce/bring on record any evidence indicating specific demand of dowry soon before the death of Vimla. In fact, in the entire statements of the above three witnesses, except for the statement that there is no custom of giving dowry in their community, there is no reference of the word dowry in their statements!!….”

“…Further, the few allegations which have been made pertaining to alleged ill treatment by father-in-law and mother-in-law like not giving food to Vimla, those allegations specifically pertains to the period immediately after the birth of first child, after first year of marriage and, thereafter, there is specific evidence regarding the fact that Ramesh thereafter took Vimla to Bombay and at Bombay they were living peacefully…..”

“…In those circumstances, apparently, it cannot be said from the evidence available on record that there was any demand of dowry on the part of the appellant Ramesh Kumar. So far as the allegation about beating being given by the appellant and father-in-law and mother-in-law to the deceased Vimla are concerned, the statements are too general and non-specific …”

“….As discussed extensively, there is no evidence available on record about any ill treatment/harassment by appellant except for bald statements about his giving beating to deceased Vimla. As already noticed the evidence only points to some such incident by the father-in-law/mother-in-law for which also there is no reference in Ex.P/5 and, therefore, there is no iota of evidence regarding abetment to suicide as well….”

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
J U D G M E N T :

S.B.CRIMINAL APPEAL NO. 221/1997

Ramesh Kumar
vs.
State of Rajasthan

DATE OF ORDER : 12th July, 2016

P R E S E N T
HON’BLE MR.JUSTICE ARUN BHANSALI

Mr.Suresh Kumbhat, for the appellant.
Mr. Arjun Singh, Public Prosecutor.

BY THE COURT:

This appeal is directed against the judgment dated 28/4/1997 passed by the Addl. Sessions Judge, Bali in Sessions Case No.54/95, whereby, the appellant Ramesh Kumar has been convicted for the offence under Sections 498A, 304B and 306 IPC and has been senteced to imprisonment as under:

U/s 498A IPC : 3 years R.I., Rs.1000/- fine, in default 3 months R.I.
U/s 304B IPC : 7 Years R.I., Rs.5000/- fine, in default 6 months R.I.
U/s 306 IPC : 7 Years R.I., Rs.500/- fine, in default 6 months R.I.
All the sentences have been ordered to run concurrently.
By the said judgment, other two accused Shanker Lal and Nopi Bai, parents of appellant Ramesh Kumar, were acquitted.

The brief facts of the case are that on 19/6/1995, Shanker Lal, father of the appellant, lodged an FIR indicating therein that his son Ramesh Kumar (Appellant) was married to Vimla 05 years ago; they are having one daughter Mamta aged about 2 years and a son Ravi aged about 06 months; at about 8.00 am on the said day Ramesh Kumar, his wife Vimla and other family members went to plough the field; at about 10.30 am his son Pratap informed him that he went to the well to start the pump, the pump did not start and Pratap found that one `odna’ (shorter version of saree) was lying near the motor; Pratap went to the well and Ramesh Kumar and Phoola Ram also came to the well and saw that clothes of woman were lying there; they went back to the house to search Ramesh’s wife and children but they were not found; Ramesh Kumar and Phoola Ram informed Pratap that about 10.00 am Vimla told that she is going to give milk to her children and Vimla along with Mamta & Ravi fell into the well.

On the said report proceedings under Section 174 Cr.P.C. were initiated by SDM, Bali and after investigation they lodged FIR under Section 498A and 304B IPC and after investigation challan was filed against appellant Ramesh Kumar, his father Shanker Lal and mother Nopi Bai. After trial, Shanker Lal and Nopi Bai were acquitted and appellant Ramesh Kumar was convicted and sentenced in the manner indicated hereinbefore.

On behalf of the prosecution, 17 witnesses were examined, whereafter, statement of accused under Section 313 Cr.P.C. was recorded; on behalf of the prosecution documents Ex.P/1 to P/32 were produced and defence produced the statement of Smt. Kastu as D-1.

While P.W.4 to P.W.12 were declared hostile, the trial court based on the statements of P.W.1 to P.W.3, Shesha Ram-brother, Mangi Lalfather and Smt. Kastumother, though brother and father during the course of their statement were also declared hostile, and based on the evidence available on record convicted the appellant for the offences under Sections 306 and 498A and 304B IPC with the aid of Section 113A & 113B of the Evidence Act, 1872. The other accused Shanker lal and Nopi Bai were acquitted, as noticed hereinbefore.

It is submitted by the learned counsel for the appellant that a bare perusal of the entire sequence of events as brought on record by the prosecution would clearly show that the prosecution has failed to bring home the charges against the appellant and, therefore, the judgment impugned deserves to be set aside. It is submitted that there is no evidence worth the name regarding the appellant seeking dowry and, therefore, the conviction under Section 498A and 304B cannot be sustained. With reference to the letters Ex.P/2, Ex.P/3 and Ex.P/4 it was submitted that the letters, even if taken as proved, were written between the period 13/4/1993 and 03/07/1993 and the incident has happened on 19/6/1995 i.e. almost after two years and, therefore, the ingredients of Section 304B regarding ‘demand of dowry soon before death’ is totally missing. It was further submitted that a bare reading of the letters would indicate that the same are nowhere connected with the demand of dowry but infact pertain to the amount which was lying with the appellant’s father-in-law along with some more amount as loan and, therefore, from the very nature of the said documents, it cannot be said that any dowry was ever demanded by the appellant. With reference to the statement of Shesha Ram and Mangi Lal, brother and father of deceased Vimla, it was submitted that from both the statements it is ex facie clear that the appellant did not demand any dowry and, therefore, the conviction of the appellant deserves to be set aside.

With reference to the conviction under Section 306 IPC it was submitted that the entire statements of Mangi Lal and Kastu, father and mother of deceased Vimla, clearly indicate about some dissatisfaction from the mother-in-law only and there is no reference whatsoever regarding any dissatisfaction/dispute with the appellant and, therefore, the appellant could not have been convicted for abetment of suicide by deceased Vimla and, therefore, the judgment deserves to be quashed and set aside. It was also submitted that the documents Ex.P/2 to Ex.P/5 which have formed the basis for conviction are full of overwriting, wherein, the Investigating Officer P.W.16 has indicated that he did not get examined said documents and that overwriting in said letters was apparent and, therefore, said documents could not have been relied on by the prosecution.

Reliance was placed on Harpal Singh vs. State of Rajasthan : 2004 (2) R.Cr.D 274, Devender Singh vs. State of Haryana : 2007 (1) Crimes 228 (SC), Manoj Kumar vs. State of Rajasthan : 2008 (1) Cr. L.R.(Raj.) 865, Vikram Singh vs. State of Rajasthan : 2007 (1) Current Judgments (Raj.) Criminal 295, Indrajit Sureshprasad Bind & Ors. vs. State of Gujarat : 2013 Cr.L.R.(SC) 403 and Bakshish Ram & anr. vs. State of Punjab : 2013 Cr.L.R.(SC) 753.

Learned Public Prosecutor vehemently opposed the submissions made by the counsel for the appellant. It was submitted that from the material available on record it is proved beyond reasonable doubt that deceased Vimla along with her two minor children, Mamta and Ravi, committed suicide on account of demand of dowry by the appellant and, therefore, his conviction is justified and the judgment of the trial court does not call for any interference.

I have considered the submissions made by the learned counsel for the parties and have perused the material available on record.

The ingredients of offence under Section 304B IPC pertaining to dowry death, which has got implication in the present case are death of a woman within seven years of marriage otherwise than under normal circumstances, woman being subjected to cruelty and harassment soon before her death in connection with any demand of dowry. Further, Section 113A of the Evidence Act provides for presumption as to abetment of suicide by a married woman in case it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or relatives of her husband had subjected her to cruelty and Section 113B of the Act provides for presumption as to dowry death if it is shown that soon before the death of a woman she was subject by such persons to cruelty and harassment for or in connection with demand of dowry.

A scanning of the evidence available on record indicates that P.W.1 Shesha Ram, brother of deceased Vimla, stated that his uncle Mangi Lal was in service at Bombay; Ramesh was in service at Bhiwandi; he was not aware about the nature of relation between Vimla and her husband as he used to come to the village once in a year; once or twice Vimla told him at Sadri that Ramesh used to give her beating. The said witness then referred to an incident of some Sunday regarding which he did not indicate any date or period and stated that he along with Puna Ram, Durga Ram and his uncle Mangi Lal went to Bhiwandi to meet Ramesh, where Ramesh sought monetary help from his uncle and offered to pay interest; his uncle told Ramesh that as he is in service he did not have the money; Ramesh had asked for Rs.50,000/-. Witness concluded his statement qua the said visit by indicating that that was the conversation which took place between Ramesh and Mangi Lal and there was no other discussion and then stated that Ramesh told his uncle that he will have to give the amount under any circumstance, whereafter, the said witness was declared hostile and was cross examined by Assistant Public Prosecutor, wherein, he exhibited his statement during police investigation as Ex.1. In cross examination by the counsel for the accused, he stated that Vimla told him 6-7 times about beating and as to when Vimla told him about the said aspect he was not aware of the year and time and reiterated that he used to visit village once in a year. When the witness was asked about other details qua Vimla as to birth of her children, he expressed ignorance. On further cross examination regarding the location of Ramesh’s room at Bhiwandi, he expressed ignorance and with regard to his visit he stated that Ramesh and Vimla were sitting happily. He expressed ignorance about Ramesh lending some money to Mangi Lal. Said statement of P.W.1 Shesha Ram is full of contradictions as noticed hereinbefore, he started with the fact that he met Vimla once or twice in Sadri when she informed about beating given by Ramesh, however, in the cross examination he claimed that Vimla told him 6-7 times regarding beating given to her. The said witness is cousin brother of deceased Vimla and is totally unaware of her family circumstances i.e. birth of her children and in those circumstances, the communication between Shehsa Ram and Vimla regarding her personal affairs, when admittedly Shesha Ram visited his village only once in a year from Bombay, specially in view of rural background of the parties involved, appears to be wholly improbable. The witness even qua the meeting indicated that Ramesh asked for monetary help and also offered to pay interest on the said amount, however, nowhere the witness has indicated anything about the point of time, not even the year has been indicated as to when the said incident regarding their visit to Bhiwandi happened, as such, it cannot be said that the alleged demand could be termed as demand for dowry.

Mangi Lal, P.W.2, father of deceased Vimla, indicated that relations between Ramesh and Vimla were (??? ???) normal. Ramesh used to serve at Bombay and Vimla was living at Bali. He alleged that Vimla was living at Bali peacefully for 12 months, whereafter, her in-laws stopped giving food to her. He stated that Ramesh Kumar wrote letters to him demanding Rs.2 lacs, which were handed over to Police and marked as Ex.P/2, Ex.P/3 and Ex.P/4. He also exhibited a letter written by Vimla to the community as Ex.P/5. He also stated that he met Vimla at Bombay, where she stated that everything was peaceful and she has no problem; Ramesh used to ask for Rs.2 lacs sometimes and Rs.35,000/- sometimes. When he stated that father-in-law and mother-in-law of Vimla & her husband forced her to commit suicide, he was declared hostile and was cross examined by Assistant Public Prosecutor, wherein, he exhibited his statement during investigation as Ex.P/6 and admitted the production of letters Ex.P/2, Ex.P/3, Ex.P/4 and Ex.P/5. In cross examination by the counsel for the accused, most of the allegations pertain to father-in-law and mother-in-law. A look at the statement indicates prodution of letters Ex.P/2, Ex.P/3, Ex.P/4 and Ex.P/5, making statement about demand of Rs.2 lacs and sketchy allegations only pertain to in-laws and not against appellant Ramesh Kumar.

A look at the letters Ex.P/2, Ex.P/3 and Ex.P/4 reveals that while Ex.P/2 is dated 13/4/1993 indicating that Ramesh was not well and that Mangi Lal should come with Rs.2 lacs for treatment and if he does not turn up then they should deem that their son-in-law is no more. The Investigating Officer qua the said letter indicated that there may be interpolation with the figures. The document Ex.P/3 dated 15/6/1993 is a piece of paper, wherein, it is indicated that please pay Rs.2 lacs to Phoola Ram, qua the said piece of paper also the Investigating Officer stated likelihood of interpolation in the figures, which is apparent from the bare look at the said exhibit. The third document is a letter dated 3/7/1993 (Ex.P/4), wherein, it is indicated that Mangi Lal should repay Rs.25,000/- given by Ramesh along with Rs.10,000/-, in total Rs.35,000/- by way of draft. It was indicated that the amount was paid by him two years back and, therefore, he can also lend and that amount would be returned back with interest. The document Ex.P/5 is a Note dated 29/11/1993 written by Vimla addressed to Panchas indicating that she was at her parents home for six months and there should be some settlement. Further reference was made that nobody has turned up from her in-laws to take her back and that she does not want to go back to her in-laws place. In his statement, Mangi Lal made bald statement about demand of Rs.2 lacs by appellant Ramesh and produced document Ex.P/2 to Ex.P/5 for supporting the said contention. However, a bare look at the said documents, as noticed hereinbefore, would indicate that besides the fact that there are apparent interpolations in the figures, from none of the communication it can be deciphered as to demand was in relation to dowry by appellant Ramesh Kumar. On the other hand, the letter Ex.P/4 indicates calling for return of the amount paid by Ramesh Kumar to Mangi Lal and offering interest on the additional amount requested by him. The said document, conclusively indicates that other communications Ex.P/2 & Ex.P/3, apparently cannot be termed as any demand for dowry. Further the indication by the father Mangi Lal regarding his daughter living peacefully at Bombay when he met her, also clearly indicates that in so far as appellant was concerned, there was apparently no dispute between the husband and the wife. The letter/representation dated 29/11/1993 (Ex.P/5) said to have been written by Vimla also does not indicate any demand of dowry from any quarter and only a grievance has been made that her in-laws were not taking her back from her parents’ house.

In view thereof, from the documents produced by Mangi Lal P.W.2 and from his statement also, nothing has emerged so as to bring home the allegations/charge against the appellant Ramesh Kumar.

P.W.3 Kastu,who is mother of deceased indicated that the first child was born to Vimla after about one year of her marriage; the relations of Vimla with her in-laws were normal when she ws sent back after delivery; thereafter, her father-in-law and mother-in-law used to quarrel with her and used to give her beating and would not give food to her. She made reference to communication made to Panchas of the Samaj regarding dispute after Vimla came to Sadri (parental home); Ramesh Kumar had written 2-3 letters, however, she was not aware of the contents thereof and her husband informed her that Ramesh was demanding amount of money, whereafter, Ramesh took Vimla to Bali and from there to Bombay. She alleged that husband of Vimla and her father-in-law and mother-in-law used to give beating and used to demand money. In cross examination she stated that Vimla returned from Bombay to Bali and she did not indicate anything about beating being given to her. She stated about beating given by mother-in-law when Ramesh was at Bombay; Ramesh took Vimla to Bombay where she remained for about 1 -2 years and a son was born to her at Bombay. A bare look at the said statement of Kastu, it can be deciphered that she made reference about relations being normal till the birth of first child and thereafter, when Vimla went to her in-laws place there was some dispute and when she returned back to her parental house and remained there for six months. Thereafter, Ramesh took her back and from there they went to Bombay and stayed at Bombay for over two years and relations were normal inasmuch as Vimla gave birth to her second child at Bombay i.e. place of her husband and whereafter, the incident has happened. The letters which have been written over a period of seven months during the period 3.4.1993 to 29.11.1993, pertain to the period when Vimla was at her parental home. Besides above, there is no other evidence as all other witnesses i.e. P.W.4 to P.W.12 have been declared hostile and P.W.13 to P.W.17 are official witnesses.

On an overall analysis of the entire sequence of events, as noticed hereinbefore, it is apparent that prosecution has failed to produce/bring on record any evidence indicating specific demand of dowry soon before the death of Vimla. In fact, in the entire statements of the above three witnesses, except for the statement that there is no custom of giving dowry in their community, there is no reference of the word dowry in their statements. Further, the few allegations which have been made pertaining to alleged ill treatment by father-in-law and mother-in-law like not giving food to Vimla, those allegations specifically pertains to the period immediately after the birth of first child, after first year of marriage and, thereafter, there is specific evidence regarding the fact that Ramesh thereafter took Vimla to Bombay and at Bombay they were living peacefully.

In those circumstances, apparently, it cannot be said from the evidence available on record that there was any demand of dowry on the part of the appellant Ramesh Kumar. So far as the allegation about beating being given by the appellant and father-in-law and mother-in-law to the deceased Vimla are concerned, the statements are too general and non-specific inasmuch as it is admitted on record that Ramesh used to reside at Bhiwandi during the period when allegation of giving beating has been indicated whereas Vimla is stated to be staying at Sadri with her father-in-law and mother-in-law and in the letter Ex.P/5 dated 29/11/1993 written to Panchas also there is no reference of any beating being given to deceased Vimla and,therefore, the prosecution has failed to being home even the said allegation against appellant Ramesh Kumar.

Even as per the evidence led by the prosecution, the demand, if any, (though it has been held hereinbefore that there was no such demand) was made between the period 13/4/1993 to 3/7/1993 based on Ex.P/2 to Ex.P/4, whereas, Vimla committed suicide on 19/6/1995 i.e. after almost two years.

Hon’ble Supreme Court in State of Karnataka vs. Dattaraj & Ors. : 2016 (2) RLW 1573 (SC) held that as the demand was made about two years before the occurrence, the same was too remote to the occurrence and, therefore, would not satisfy the requirement of ‘soon before her death’ as contemplated under Section 304B (1) of IPC. The Hon’ble Supreme Court further with reference to its judgment in the case of Appasaheb vs. State of Maharashtra : (2007) 9 SCC 721 and Rajinder Singh vs. State of Punjab : (2015) 6 SCC 477 refused to consider the demands made by the accused in the said cases for purchasing the agricultural land and also with reference to sewing machine to be treated as demands constituting ‘dowry’.

As discussed extensively, there is no evidence available on record about any ill treatment/harassment by appellant except for bald statements about his giving beating to deceased Vimla. As already noticed the evidence only points to some such incident by the father-in-law/mother-in-law for which also there is no reference in Ex.P/5 and, therefore, there is no iota of evidence regarding abetment to suicide as well.

The trial court while making reference to the various statements, frowning on the conduct of the witnesses, who turned hostile specially P.W.4 Prakash, based on drawing presumption under Section 113A and 113B of the Evidence Act, convicted the accused.

The Hon’ble Supreme Court in the case of Bakshish Ram (supra) held that there must be material to show that soon before her death the victim was subjected to cruelty or harassment, in other words the prosecution has to rule out the possibility of a natural and accidental death so as to bring it within the purview of death occurring other than in normal circumstances.

In the present case, the prosecution was obliged to prove that appellant had subjected the deceased to cruelty/soon before the occurrence there was cruelty or harassment and in view of the fact that prosecution has failed to prove that deceased Vimla was subjected to cruelty by the appellant/subjected to cruelty or harassment soon before her death in connection with any demand of dowry, the presumption under Section 113A and 113B of the Evidence Act does not arise and, therefore, the findings recorded by the trial court cannot be sustained.

In view of the above discussion, this Court is satisfied that prosecution has failed to establish the guilt of the appellant beyond reasonable doubt and the trial court committed an error in convicting the appellant and same is, therefore, liable to be set aside.

Accordingly, the appeal is allowed, the conviction of appellant Ramesh Kumar for the offences punishable under Sections 306, 304B and 498A IPC is set aside. The amount of fine, if paid by the appellant, be refunded back to him.

(ARUN BHANSALI), J.

baweja/

Whither Justice ? 86 cases listed in a day in one court @ SC. How many minutes will a case get ? How will parties get justice ?

After spending lakhs of rupees, litigants seek justice from the Apex court. Some senior advocates are known to charge up to Rs. 2 …. 3 lakhs per case / per hearing …and it is now revealed that 86 cases were listed in one court in one day… Assuming that a court functions effectively for 6 hours (10.00 a.m. to 5 p.m. with an hour for lunch) its 86 cases over 360 minutes… so a case would get 4 minutes on an average !! How would justice be delivered in 4 minutes or even 10 minutes ? how would the parties be able to explain their respective stand and bring home the truth ? this “system” works like a machine and men and women are just cogs in the wheel !!

God save us all

=========== news from TOI ========

Jul 13 2016 : The Times of India (Delhi)

Eid overload: SC lists record 1,330 cases for hearing in a day

AmitAnand Choudhary

New Delhi:

The Supreme Court witnessed chaotic scenes in its corridor and some of the court rooms with advocates finding it difficult to enter the court room or make their way to the front to argue cases as an unmanageable number of litigants and lawyers turned up in court. A record 1,330 cases were listed for hearing on Tuesday .

The number of cases listed for hearing was much higher in comparison to normal days as the court took up additional cases which were listed for July 7 but could not be heard because of Eid holiday . Around 700-800 cases are listed for hearing on normal days.

With a large number of people turning up on court premises, the corridor around the court room was jampacked and the lawyers, who keep run ning from one court room to another court usually , were finding it very difficult to make their way.

Around 1,080 cases were listed for hearing before 15 benches and 250 cases were listed before registrar on Tuesday .The worst situation was in court number 4 where 86 cases were listed for hearing and lawyers were jostling and bumping against each other to reach the front to argue their case. SC Bar Association president Dushyant Dave, who was appearing in one of the cases, brought to the court’s attention the chaos inside and outside the court room. SC Bar Association pres ident and senior advo cate Dushyant Dave told a bench of Justices Dipak Misra and C Nagappan that it was like “sabzi mandi“ (vegetable market) outside and pleaded they take a look at the prevailing situation by coming out of the court room.

“Senior advocate K Prasaran was virtually knocked out outside. 80-100 cases are listed before each court today . It is not a healthy situation. Please come out and have a look at the chaotic situation,“ he told the Bench.

Dave said that court proceeding should be split in two sessions and two separate lists should be prepared so that only those lawyers would be present in court whose matter would be taken up in one session and the crowd would become manageable.

Senior advocate Sanjay Hegde, who was to argue in deemed university case and was able to go to the front, said in a lighter vein that he has been illegally detained by the crowd, drawing laughter from the judges and lawyers present.

The number of cases listed for hearing in SC has been growing over the years but the court’s infrastructure has not kept up or expanded.In the beginning, there were only eight judges in the Su preme Court including the chief justice.

As the work of the court increased and the number of pending cases grew, Parliament stepped in to increase the number of judges, from the original eight in 1950 to 10 in 1956, 13 in 1960, 17 in 1977, 26 in 1986 and 31 in 2008.

SOURCE
http://epaperbeta.timesofindia.com/Article.aspx?eid=31808&articlexml=Eid-overload-SC-lists-record-1330-cases-for-13072016033030

50 lakhs for quashing 498a case ! Indian ‘settlement’ industry runs to 100s of crores per-annum !

Here’s a case where a husband is settling Rs 50 lakhs some 7 years after the case was registered and 9 years after FIR. And the “settlement” ..  a good 50 lakhs !! If just one case would settle at 50 Lakhs, imagine what the total “settlement” number would be at ??

Men are openly milked by the “system”. Of course one can blame the husband for paying, and I do NOT in anyway espouse or support “settlements” . But please note that this guy seems to have fought for quite some years B4 paying

=============

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 3462 of 2015

========================================================

DHAVAL DILIPKUMAR JOSHI & 2….Applicant(s) Versus STATE OF GUJARAT & 1….Respondent(s)

========================================================

Appearance:
MS.P J.JOSHI, ADVOCATE for the Applicant(s) No. 1 ­ 3
MR MANISH J PATEL, ADVOCATE for the Respondent(s) No. 2
PUBLIC PROSECUTOR for the Respondent(s) No. 1

========================================================

CORAM: HONOURABLE MS JUSTICE SONIA GOKANI

Date : 08/07/2016

ORAL ORDER

  1. This petition is preferred seeking quashment of complaint being Criminal Case No.2449/2009 dated 16.11.2009 registered before Metropolitan Magistrate, Court No.5, Ahmedabad.
  2. During the pendency of this matter, parties have chosen to settle their dispute amicably. Yet another petition before this Court being Criminal Misc. Application No.15781 of 2016 has been disposed of in presence of complainant, wherein this Court has passed the following order on 07.07.2016:

“Rule returnable today. Learned APP Mr. Ronak Raval waives service of notice of Rule for and on behalf of the respondent No.1- State of Gujarat.

This Criminal Misc. Application is preferred under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 for quashment of the complaint, being CR No.I-446 of 2007 registered with Vatva Police Station, Ahmedabad for the offence punishable under Sections 498[A], 323, 114 of the Indian Penal Code read with Sections 3 & 7 of the Dowry Prohibition Act.

The original complainant -respondent No. 2 is present before this Court and urges that she has no objection if the complaint is quashed. The affidavit of the original complainant-respondent No.2 is brought on record. The parties have settled their disputes. The petition for divorce by way of consent under the Hindu Marriage Act is also pending before the learned Principal Judge, Family Court, Ahmedabad. The applicant has deposited sum of Rs. 50,00,000/- towards the full and final settlement as permanent alimony. Necessary documents are also brought on record. She has entered into compromise out of their own volition.

Both the sides have been heard. This Court has taken a note of contents of the affidavit and the same have been verified by learned APP from the complainant. Considering the facts that this is matrimonial disputes and the parties have amicably settled the dispute, which being private in nature, so as to bring peace between the parties, this Court is of the opinion that they can be permitted to settle the same and the criminal proceedings which is otherwise not compoundable in nature, with the consent terms being placed on the record, deserves to be quashed. Apt it would be to reproduce the relevant observations made by the Apex Court in case of Jitendra Raghuvanshi & Ors. v. Babita Raghuvanshi & Anr., reported in 2013 (3) GLR 1875, which reads thus –

“14. The inherent powers of the High Court under Section 482 of the Code are wide and unfettered. In B.S. Joshi (Supra), this Court has upheld the powers of the High Court under Section 482 to quash criminal proceedings where dispute is of a private nature and a compromise is entered into between the parties who are willing to settle their HC-NIC Page 2 of 4 Created On Thu Jul 14 01:03:16 IST 2016 R/CR.MA/3462/2015 ORDER differences amicably. We are satisfied that the said decision is directly applicable to the case on hand and the High Court ought to have quashed the criminal proceedings by accepting the settlement arrived at.

  15.In our view, it is the duty of the courts to encourage genuine settlements of matrimonial disputes, particularly, when the same are on considerable increase. Even if the offences are non-compoundable, if they relate to matrimonial disputes and the court is satisfied that the parties have settled the same amicably and without any pressure, we hold that for the purpose of securing ends of justice, Section 320 of the Code would not be a bar to the exercise of power of quashing of FIR, complaint or the subsequent criminal proceedings. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

  16.There has been an outburst of matrimonial disputes in recent times. The institution of marriage occupies an important place and it has an important role to play in the society. Therefore, every effort should be made in the interest of the individuals in order to enable them to settle down in life and live peacefully. If the parties ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law, in order to do complete justice in the matrimonial matters, the courts should be less hesitant in exercising its extraordinary jurisdiction. It is trite to state that the power under Section 482 should be exercised sparingly and with circumspection only when the court is convinced, on the basis of material on record, that allowing the proceedings to continue would be an abuse of the process of the court or that the ends of justice require that the proceedings ought to be quashed. We also make it clear that exercise of such power would depend upon the facts and circumstances of each case and it has to be exercised in appropriate cases in order to do real and substantial justice for the administration of which alone the courts exist. It HC-NIC Page 3 of 4 Created On Thu Jul 14 01:03:16 IST 2016 R/CR.MA/3462/2015 ORDER is the duty of the courts to encourage genuine settlements of matrimonial disputes and Section 482 of the Code enables the High Court and Article 142 of the Constitution enables this Court to pass such orders.”

As a parting note, request is also made by learned advocates appearing for the parties to expeditious proceed with the matter which is pending before the Family Court, Ahmedabad.

Learned Principal Judge, Family Court, Ahmedabad is hereby directed to expeditious proceed with the matter which is pending considering the young age of the parties.

In the result, this Criminal Misc. Application is allowed. The F.I.R. Being CR No.446 of 2007 filed before Vatva Police Station, Ahmedabad is hereby ordered to be quashed. Registry shall accept the vakalatpatra of Mr. Manish Patel, learned advocate appears for the original complainant- respondent No.2 Rule is made absolute. Direct service is permitted.”

  Along this line, this petition deserves to be disposed of and accordingly stands disposed of.

  1. Resultantly, the request for quashment is acceded to and the impugned complaint is QUASHED with all consequential proceedings. DISPOSED OF, accordingly. Direct service is permitted.

(MS SONIA GOKANI, J.)

 

 

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