Category Archives: Rajastan HC

Husband NOT guilty of wife’s death, even though 2 dying declarations implicate him ! Raj HC

In this case 2 dying declarations ostensibly given by the deceased wife implicate the husband. The prosecution case is that the husband used to drink and quarrel with the wife and poured kerosene on her and set her ablaze. All the relatives, including relatives of the wife turn hostile and do NOT support the prosecution case. The Hon court appreciates the case in its entirety and acquits the innocent husband !!

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

D.B. Criminal Appeal No. 769 / 2011

Bhagirath S/o Goruram, by caste Nayak,
Resident of Khyali, Tehsil Rajgarh, District Churu.
(At present lodged in Central Jail, Bikaner.) —-Appellant

Versus

State of Rajasthan —-Respondent


For Appellant(s) : Mr. S.K. Poonia.

For Respondent(s) : Mr. Vishnu Kachhawaha, PP.


HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS

HON’BLE MR. JUSTICE GOVERDHAN BARDHAR

JUDGMENT

[Per Hon?ble Mr. G.K. Vyas, J.]

Date of Judgment :: 19th January, 2017

In this criminal appeal filed under Section 374 (2) of Cr.P.C., the accused appellant, Bhagirath, has challenged the judgment dated 29th of Aug., 2011 passed by learned Addl. Sessions Judge, Rajgarh, District Churu (Trial Court) in Session Case No.18/2008, by which the accused appellant, Bhagirath, was convicted for the offences under Sections 498A and 302 of IPC and following sentence was passed against him: –

498A of IPC: Three Years? Simple
Imprisonment along with
fine of Rs.500/-. In
default of payment of
fine, to further undergo
six months? simple
imprisonment.

302 of IPC: Life Imprisonment and
fine of Rs.1,000/- and in
default of payment of
fine, to further undergo
one year simple
imprisonment.

Briefly stated, the facts of the case are that on 16.05.2008 at 03.50 PM, Assistant Sub-Inspector, Mangilal (PW.12) of Police Station Rajgarh, recorded statement („Parcha-Bayan?) Ex.P/19) of Smt. Suresh Devi, wife of accused appellant, Bhagirath, who was under treatment at Government Hospital, Rajgarh, District Churu. In the „Parcha-Bayan?, it was alleged by Smt. Suresh Devi, that my husband after consuming liquor used to harass me and on the date of incident at about 12-12.30 in the afternoon, when I was sleeping inside the house under “Chhapra” (Shed), my husband poured kerosene upon me and lit fire. On the basis of above „Parcha-Bayan? of Smt. Suresh Devi, F.I.R. No.158/2008 was registered at Police Station- Rajgarh, u/s 498A and 307 of IPC against the appellant, Bhagirath, and investigation commenced.

During investigation, Smt. Suresh Devi, died on 25.05.2008, therefore, offence u/s 302 of IPC was added. After completing the investigation, Challan was filed against the accused appellant for offences u/s 302, 498A of IPC in the court of learned A.C.J.M., Rajgarh, from where the case was committed for trial to the court of Addl. Sessions Judge, Rajgarh, District Churu.

The learned trial court thereafter after providing opportunity of hearing to the accused appellant, framed charges against the accused appellant for offence u/s 302 and 498A of IPC on 12.08.2009, which the appellant denied and prayed for trial.

During trial, statements of 14 prosecution witnesses were recorded and 20 documents were exhibited from the prosecution side in support of its case, including two dying declarations Ex.P/10 and Ex.P/19 of deceased, Smt. Suresh Devi, recorded by the Executive Magistrate, Rajgarh, at 04.15 PM and ASI, Mangilal (PW.12) at 03.50 PM on 16.05.2008 respectively. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

The learned trial court after recording evidence of the prosecution proceeded to record the statements of accused appellant under Section 313 Cr.P.C. in which accused appellant denied the allegations of prosecution.

An opportunity to lead evidence was granted to the accused, therefore, accused appellant examined himself as DW.1 in defence and said that no kerosene was poured by me, the deceased herself committed suicide while pouring kerosene upon her and my son, Mukesh, poured water on her mother to save. It was also stated by the accused that I am not consuming liquor.

The learned trial court after hearing the arguments considered the entire evidence and while relying upon the dying declaration (Ex.P/10 and Ex.P/19) of the deceased, convicted the accused appellant vide judgment dated 29.08.2011 for committing offences u/s 302 and 498A of IPC, which is under challenge in this appeal.

Learned counsel for the accused appellant submitted that out of 14 prosecution witnesses, PW.1, Mamta, 22 years of age (daughter of deceased, PW.2, Mukesh 16 years of age (son of deceased), PW.3, Karni Singh (independent witness who present at the time of incident), PW.4 Ram Kumar (brother of accused appellant), PW.8 Om Prakash (brother of deceased Smt. Suresh Devi), PW.9 Jagdish (nephew of deceased), PW.10 (nephew of deceased), PW.11 Naresh (nephew of deceased), all the relatives turned hostile and did not support the allegations prosecution. Therefore, it is obvious that neither the family members of the accused appellant nor family members of the deceased, supported the prosecution case, however, the learned trial court while relying upon the dying declaration (Ex.P/19) recorded by the ASI, Mangilal at 03.50 PM on 16.08.2008, and another dying declaration (Ex.P./19) recorded by the Executive Magistrate, Rajgarh at 04.15 Pm on 16.05.2008, convicted the accused appellant, but as per argument of the learned counsel for the appellant both these dying declarations cannot be treated as proved because no certificate of the doctor declaring the injured to be fit to give statements was obtained inspite of the fact that doctors were present. Therefore, the finding of guilt recorded by the learned trial court only on the basis of dying declaration, is not sustainable in law.

Learned counsel for the appellant further submitted that as per statements of PW.12, ASI Mangilal, he reached at Govt. Hospital, Rajgarh, after receiving telephonic information and recorded the statement of Smt. Suresh Devi vide Ex.P/19 at 03.50 PM on 16.05.2008, upon which she (deceased, Smt. Suresh Devi), put her thumb impression and made allegations that her husband poured kerosene upon her. It was further stated by her that after consuming liquor he used to beat me, but it is one of the important fact that deceased was under treatment, where her statements were recorded, and doctor was there, who examined the injured Smt. Suresh Devi at 04.00 PM, and gave Injury Report (Ex.P/8). Meaning thereby before examination by the doctor, her statements were recorded and thumb impression was taken, but Dr. Raj Kumar Sarraf (PW.5) categorically stated in his cross- examination that palm, thumb and fingers of Smt. Suresh Devi (deceased) were completely burnt. Therefore, it is highly doubtful that as to how thumb impression were obtained upon the dying declaration (Ex.P/19). It is also argued that the another dying declaration (Ex.P/10), which was recorded by Executive Magistrate, Rajgarh PW.6, Mr. Narendra Kulhari at 04.15 PM. The said dying declaration (Ex.P/10) also bears the thumb impression of Smt. Suresh Devi. The said witness (PW.6) accepted in his statement that at the time of recording the statement of Smt. Suresh Devi, in the Hospital, doctors were present and thumb impression was taken upon the dying declaration, but as per statement of doctor, who examined first, the palm, thumb and fingers of deceased were already burnt, then how it was possible to obtain the thumb impression of the deceased upon Ex.P/19.

In the cross-examination, a specific question was put to the witness, whether any certificate of fitness was obtained by him or not, PW.6, Narendra Kulhari (the then Executive Magistrate, Rajgarh) stated that, “no I did not obtain any fitness certificate from the doctor nor signature of the doctor was obtained on Ex.P/10.

Learned counsel for the appellant thus vehemently argued that there is ample evidence on record that doctors were present at the time of recording the dying declarations Ex.P/10 and Ex.P/19, but no fitness certificat was obtained prior to recording dying declaration. More so, the Executive Magistrate while recording the dying declaration (Ex.P/10) of Smt. Suresh Devi, did not record his own satisfaction that she is in a position to speak or fit to understand. Therefore, the conviction which is solely based upon the dying declaration of the deceased, is not sustainable so as to convict the accused appellant for the alleged crime of murder.

Learned counsel for the appellant further submitted that there is serious doubt about the recording of dying declaration because there is statement of doctor that palm, fingers and thumb of the deceased were completely burnt. Learned counsel for the appellant invited our attention towards Rule 6.22 of Rajasthan Police Rules, 1965, which provides procedure for recording dying declaration and submitted that dying declaration has not been recorded according to procedure provided in Rule 6.22 of the Rules of 1965, therefore, finding of conviction recorded by the trial court is based upon doubtful evidence.

Learned counsel for the appellant invited our attention towards following judgments:

1. Smt. Kamla Vs. State of Punjab reported in (1993) 1 SCC 1

  1. Kishan Lal Vs. State of Rajasthan reported in (2000) 1 SCC 310
  2. Lella Srinivasa Rao Vs. State of A.P. reported in (2004) 9 SCC 713

  3. Amol Singh Vs. State of M.P., reported in (2008) 5 SCC 468

  4. State of Andhra Pradesh Vs. P. Khaja Hussain reported in (2009) 15 SCC 120

  5. Sharda Vs. State of Rajasthan reported in (2010) 2 SCC 85 7 . S t at e of Rajasthan Vs. Shravan Ram & Anr. (Criminal Appeal No.427/2007, decided on 01.05.2013).

  6. Chhotu Vs. State of Rajasthan reported in 2016 (1) WLN 168 (Raj.)


On the basis of above grounds, it is prayed that the impugned judgment may kindly be quashed and the accused may be acquitted from the charges.

Per contra, learned Public Prosecutor vehemently argued that although all the witnesses including, family members of deceased and the family members of accused, turned hostile and did not support the prosecution case, but the dying declaration of the deceased recorded, firstly by the ASI Mangilal vide Ex.P/19, and by the Executive Magistrate, Rajgarh vide Ex.P/10, cannot be disbelieved because in both the dying declarations, specific allegations were levelled by the deceased against the appellant for pouring kerosene and litting fire upon her. Therefore, no error has been committed by the trial court in relying upon the dying declaration of deceased, Smt. Suresh Kumar Devi, to hold the accused appellant guilty for the offence of murder.

With regard to argument of learned counsel for the accused appellant that while recording the dying declaration provisions as contemplated in Rule 6.22 of the Rajasthan Police Rules, 1965 (Rules of 1965) have not been complied with, it is argued by the learned Public Prosecutor that in this case the dying declaration (Ex.P/10) was recorded by the Executive Magistrate, therefore, it cannot be said that Rule 6.22 of the Rules of 1965, has not been taken in consideration for the purpose of recording the statement of deceased, Smt. Suresh Dehvi. As far as ground taken by the learned counsel for the accused appellant that before recording the statements/dying declaration of Smt. Suresh Devi, fitness certificate was not obtained by the ASI, Mangilal (PW.12) and so also by the Magistrate, it is argued by the learned Public Prosecutor that only satisfaction of the authority recording the dying declaration is to be there. The dying declaration should satisfy all the necessary tests and one of such important test if there are more than one dying declaration, they should be consistent, particularly in the matter particulars. In this case, there is no contradiction in the both the dying declarations, therefore, the ground raised by the learned counsel for the accused appellant that dying declarations were recorded without obtaining fitness certificate is not sustainable in law. It is also pointed out that even though all the witnesses turned hostile, two dying declarations recorded by the independent officials, cannot be ignored and same has rightly been relied upon by the learned trial court while holding him guilty for offence u/s 302 of IPC, as such this appeal may kindly be dismissed and the finding of conviction arrived at by the learned trial court may be upheld. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

After hearing the learned counsel for the parties, we have minutely scanned the entire evidence and find that whole prosecution case is based upon the statements of 14 prosecution witnesses, and out of 14 witnesses, PW.1, Mamta, 22 years of age (daughter of deceased, PW.2, Mukesh 16 years of age (son of deceased), PW.3, Karni Singh (independent witness who present at the time of incident), PW.4 Ram Kumar (brother of accused appellant), PW.8 Om Prakash (brother of deceased Smt. Suresh Devi), PW.9 Jagdish (nephew of deceased), PW.10 (nephew of deceased), PW.11 Naresh (nephew of deceased), all turned hostile and did not support the prosecution case. Furthermore, son and daughter of the deceased and brother of the appellant specifically stated that kerosene was poured by deceased herself, and further stated that accused appellant was not consuming liquor.

Thus it is obvious that inspite of two dying declarations of the deceased recorded by the ASI, Mangilal and the Executive Magistrate, Rajgarh, which have been relied upon by the trial court so as to convict the accused appellant for the alleged crime of murder.

After considering the arguments raised by the learned counsel for the accused appellant to disbelieve the dying declaration, now we are dealing the question as to whether the dying declaration recorded by ASI, Mangilal and Executive Magistrate, Rajgarh, would be sufficient to record finding of conviction against the appellant. To consider the argument, we have perused Rule 6.22 of the Rules of 1965, which reads as infra:

Dying Declarations – (1 ) A dying declaration shall, whenever possible, be recorded by a Magistrate.

(2) The person making the declaration shall, if possible, be examined by medical officer with a view to ascertaining that he is sufficiently in possession of his reason to make a lucid statement.

(3) If no Magistrate can be obtained, the declaration shall, when a gazetted police officer is not present, be recorded in the presence of two or more reliable witnesses unconnected with the police department and with the parties concerned in the case.

(4) If no such witnesses can be obtained without risk of the injured person dying before his statement can be recorded, it shall be recorded in the presence of two or more police officers.

(5) A dying declaration made to a police officer should, under Section 162, Code of Criminal Procedure, be signed by the person making it.”

Upon the present set of evidence, we find that although the statements/?Parcha-Bayan? Ex.P/19 was recorded by the ASI, Mangilal (PW.12), upon that FIR was registered. The said „Parcha-Bayan? of the injured was recorded at 03.50 PM on 16.05.2008 when Smt. Suresh Devi, was under treatment at Govt. Hospital, Rajgarh. The said dying declaration bears the thumb impression of the deceased, Smt. Suresh Devi. Upon perusal of entire „Parcha-Bayan?, it is obvious that there is no disclosure for taking any fitness certificate of the doctor though statements were recorded in the Govt. Hospital, Rajgarh, and soon after recording the „Parcha-Bayan? at 04.00 PM, Smt. Suresh Devi (deceased) was medically examined by the doctor at 04.00PM and injury report was prepared. In our opinion even though it was necessary to obtain fitness certificate before recording statements („Parcha-Bayan?) but at the same time, we cannot lose sight of the fact that the time and the place where the dying declarations of the deceased were recorded, was the hospital and doctors were very much present in the Hospital. In the statement of the PW.5, Dr. Raj Kumar Sarraf it is categorically stated that palm, both thumbs and fingers were in burnt condition. So also the said witness nowhere stated that deceased disclosed the reason how burn took place or her husband poured kerosene upon her. In the cross- examination a specific question was put to doctor whether you have any knowledge how incident of burn took place, it is replied by him that I don?t know how burn injuries were caused to the deceased.

In our view, if „Parcha-Bayan? was recorded by the ASI, Mangilal, just ten minutes before medical examination of the injured by Dr. Raj Kumar Sarraf (PW.5), then obviously, doctor was to be informed about the reason of burn. As per injury report (Ex.P/8), after examination by the doctor was prepared at 4?O Clock, before ten minutes, the ASI recorded the statement of deceased, for which a specific question was put to doctor whether statement of injured were recorded in his presence, to which he replied that, “;g lgh gS fd ,l s h lp w u k dk dkxt bl i=k- ij ugha gSA ;g lgh gS fd iqfyl }kjk fy;k x;k ipkZ c;kuo dk;kZikyd eft- }kjk fy, x, c;ku ejs h ekStnw xh eas ugha fy, x,A eaS ejht dk bykt djus eas O;Lr FkkA ;g lgh gS fd et:ck dh gFky s h o vx a qfy;k tys gq, FkAs ”

a Bw ]s vx The aforesaid discussion of evidence create serious doubt the fact of recording the „Parcha-Bayan? (Ex.P/19) by the ASI, Mangilal, upon which the FIR was registered against the accused appellant.

We have perused the second statement/dying declaration (Ex.P/10) which is said to be recorded by the Executive Magistrate, Rajgarh. Upon perusal of Ex.P/10, it is abundantly clear that there is no whisper about the fact that any satisfaction was recorded by the Magistrate before recording the statements of the injured with regard to fitness of the injured even to speak and the said statements were recorded at 04.15 PM, just after fifteen minutes before the injured was medically examined by Dr. Raj Kumar Sarraf. It is not in dispute that the said dying declaration (Ex.P/10) was recorded by the Executive Magistrate, Rajgarh, in the Govt. Hospital and upon that there is thumb impression of injured, but no presence of other witness is recorded including doctors, who were present in the hospital, by the Executive Magistrate. Similarly, no satisfaction about fitness and state of mind was recorded by the Executive Magistrate before recording the dying declaration of the deceased.

In the totality of the circumstances and considering the fact that all relatives including in-laws of deceased and maternal side, turned hostile and in both the dying declarations, no fitness certificate was obtained from the doctors who were present in the hospital. Therefore, we are of the view that it is not safe to rely upon the so- called two dying declarations so as to hold the accused appellant guilty for the alleged crime of murder.

We have perused and considered the law laid down by the Hon?ble Apex Court in the judgments cited at bar by the learned counsel for the accused appellant. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

The Hon?ble Apex Court considering the scope of multiple in the case of Smt. Kamla v. State of Punjab (supra) held as under:

“A dying declaration should satisfy all the necessary tests and one such important test is that if there are more than one dying declaration they should be consistent particularly in material particulars.”

In the case of Kishan Lal v. State of Rajasthan, (2000) 1 SCC 310, the Honb?le Apex Court held as under:

“Examining these two dying declarations, we find not only that they gave two conflicting versions but there is inter se discrepancies in the depositions of the witnesses given in support of the other dying declaration dated 6.11.1976. Finally, in the dying declaration before a Magistrate on which possibly more reliance could have been placed the deceased did not name any of the accused. Thus, we have no hesitation to hold that these two dying declarations do not bring home the guilt of the appellant. High Court, therefore, erred in placing reliance on it by erroneously evaluating them.”

In the case of Lella Srinivasa Rao v. State of A.P.

(2004) 9 SCC 713, the Hon?ble Apex had considered the legality and acceptability of two dying declarations.

Noticing the inconsistency between the two dying declarations, and held that it is not safe to act solely on the said declarations to convict the accused persons.

In the case of Amol Singh v. State of Madhya Pradesh (2008) 5 SCC 468, the Hon?ble Apex Court interfered with the order of sentence noticing inconsistencies between the multiple dying declarations. It is not the plurality of the dying declarations but the reliability thereof that adds weight to the prosecution case. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration but the statement should be consistent throughout. However, if some inconsistencies are noticed between one dying declaration and the other, the Court has to examine the nature of the inconsistencies, namely, whether they are material or not and while scrutinising the contents of various dying declarations, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances.

In the case of State of Andhra Pradesh v. P. Khaja Hussain, (2009) 15 SCC 120, held that it was not a case where the variation between the two dying declarations was trivial in nature.

In the case of Sharda v. State of Rajasthan (2010) 2 SCC 85, the Hon?ble Apex Court while dealing with three dying declarations and noticing inconsistencies between dying declarations, set aside the sentence ordered by Sessions Judge as well as High Court and held as under:

“Though a dying declaration is entitled and is still recognized by law to be given greater weightage but it has also to be kept in mind that accused had no chance of cross-examination. Such a right of cross- examination is essential for eliciting the truth as an obligation of oath. This is the reason, generally, the court insists that the dying declaration should be such which inspires full confidence of the court of its correctness. The court has to be on guard that such statement of deceased was not as a result of either tutoring, prompting or product of imagination. The court must be further satisfied that deceased was in a Crl.A.No. 699/08 fit state of mind after a clear opportunity to observe and identify the assailants. Once the court is satisfied that the aforesaid requirement and also to the fact that declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration.”

The Constitution Bench of Hon?ble Apex Court in the case of Laxman Vs. State of Maharasthra, reported in AIR 2002 SC 2973 held that absence of certificate of doctor as to fitness of mind of declarant would not render dying declaration not acceptable. What is essentially required is that person who records it, must be satisfied that deceased was in fit state of mind. Certification by doctor is rule of caution. If the voluntary and truthful nature of declaration can be otherwise established, the same can be relied to record the dying declaration. The hyper technical view should not be therefore taken.

So far as facts of present case are concerned, neither the Executive Magistrate, Rajgarh, nor the ASI, Mangilal (PW.12) recorded their own satisfaction while recording the statements/dying declaration of the deceased. Even the doctor, who was present in the Hospital, has not been asked to give fitness certificate declaring the injured to be in a position to give statement.

We have gone through both the dying declarations and considered the fact that all the witnesses of family, including parental family of the deceased, turned hostile and did not corroborate the allegations made by the deceased in the so-called dying declarations against the accused appellant, so also, it is admitted position of the case that inspite of presence of doctors, fitness certificate was not obtained, nor own satisfaction of fitness was recorded by the Executive Magistrate, Rajgarh, and ASI, Mangilal (PW.12) before recording the statements of the deceased. In view of above, whole prosecution case which is solely based upon dying declaration, is doubtful. Therefore, it is a fit case to reverse the finding of conviction arrived by the learned trial court so as to hold accused appellant guilty for the offence of murder. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

Furthermore, there is no corroborative evidence on record to the effect that deceased, Smt. Suresh Devi, was subjected cruelty in connection demand of dowry. Thus, the conviction recorded by the learned trial court holding the accused appellant guilty for offence under Section 498A of IPC, is not sustainable in law.

Consequently, while extending benefit of doubt the instant criminal appeal filed by the accused appellant, Bhagirath is hereby allowed. The impugned judgment dated 29th of Aug., 2011 passed in Session Case No.18/2008 by learned Addl. Sessions Judge, Rajgarh, District Churu, convicting the accused appellant for offences u/s 498A and 302 of IPC is hereby quashed and set aside. The accused appellant be released forthwith, if not required in any other case.

Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused appellant is directed to forthwith furnish personal bond in the sum of Rs.20,000/- and a surety bond in the like amount, before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against the judgment or for grant of leave, the appellant, on receipt of notice thereof, shall appear before Hon’ble the Supreme Court.

(GOVERDHAN BARDHAR)J.

(GOPAL KRISHAN VYAS)J.

DJ/-


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18 lakhs alimony in spite of 25 years desertion !! Rajastan HC

  • checkered history of fights between spouses
  • husband claims that wife was a widow from her earlier marriage and it was hidden from him
  • he claims that she was also cantankerous
  • after initial spats etc, wife finally leaves in 1991
  • after numerous cases, matter finally reaches Rajastan HC. HC Also sees desertion / decrees desertion
  • However, IN the INTEREST of justice, HC says pay her 6 lakhs in addition to the 12 lakhs already paid !!
    …..and that is EVEN after an 18 year desertion !! …..

IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR

:JUDGMENT:

S.B. CIVIL MISC. APPEAL NO.99/1996

APPELLANT :

Smt. Raj Kumari @ Chandrakala w/o Shri Nandlal D/o
Shri Badri Singh, by caste Mali Kachhawaha, resident
of Sardarshahar at present Bikaner.

Versus

RESPONDENT :

Nandlal son of Late Shri Dalchand Ji, By caste Mali,
Sangodiya, resident of Sardarshahar Churu.

Date of Judgment :: 17.10.2016

PRESENT

HON’BLE MR. JUSTICE ARUN BHANSALI

Mr. Salil Trivedi, for the appellant/s.
Mr. Rajesh Parihar ) for the respondent/s.
Mr. Vinit Sanadhya)


BY THE COURT:

This appeal under Section 28 of the Hindu Marriage Act, 1955 (‘the Act’) is directed against the judgment and decree dated 5.10.1995 passed by the District Judge, Churu, whereby the petition filed by the respondent under Section 13 of the Act has been accepted and marriage between the parties has been dissolved.

The dispute between the parties has a checkered history. The petition for dissolution of marriage was filed by the respondent-husband under Sections 12 & 13 of the Act, inter-alia, with the averments that the marriage was solemnized between the parties on 20.11.1989 at Bikaner at the residence of Dr. Durga Gehlot; a daughter was borne out of the wedlock on 5.9.1990. It was alleged that the family members of the wife at the time of marriage wrongly indicated her name as Rajkumari and her age at 21 years, in fact, her real name was Chandrakala and her age as per the school certificate was much more and she was widow of Dr. Anil Kumar Gehlot, whereas it was informed that she was unmarried. It was alleged that marriage was solemnized by committing fraud, the said fact came to the notice of the husband during the posting at Bikaner and FIR No.197 dated 25.10.1993 was lodged, which is being investigated. It was alleged that the wife was of cantankerous nature and behaved cruelly with the husband and family members. It was alleged that while behaving in the offending manner, the wife continued to move between her matrimonial home and parental home and on 7.12.1991, uncle (mama) of the wife, without permission took her with him. Whereafter, she did not turn up till 25.10.1993 and continued to refuse to live with the husband. Before 25.10.1993, several efforts were made for bringing her back, however, the parents and aunty of the wife intimated that if the husband wants to come and live with her, he can come and live, the wife was not prepared to go and live with him. It was also alleged that despite repeated efforts made between 7.12.1991 to 25.10.1993, the wife did not return back and has deserted the husband. Based on the said allegation of cruelty and desertion, the petition was filed.

The appellant herein was served with the notice of the petition, she appeared through counsel before the trial court, however, on 26.8.1995, her counsel pleaded no instructions and therefore, ex-parte proceedings were initiated.

On behalf of the husband, four witnesses were examined and documents were exhibited.

After hearing counsel for the husband, the trial court came to the conclusion that desertion was proved, cruelty was also proved, however, it was held that in so far as fraud and declaring the marriage as void was concerned, the same was not proved and consequently, passed decree on 5.10.1995 for dissolution of marriage.

Feeling aggrieved, the appellant filed an appeal before this Court. When initially, the appeal came up before this Court for hearing, by judgment dated 13.12.2001, the appeal was dismissed on merits.

Feeling aggrieved, the appellant approached the Division Bench by filing D.B. Civil Special Appeal (Civil) No.8/2002. The Division Bench by its order dated 15.10.2009, set-aside the finding recorded by the trial court as well as learned Single Judge regarding curelty. However, qua the ground of desertion, it was noticed that the learned Single Judge has not given his own finding on said aspect and question as to whether ground of desertion was made or not is required to be probed into thread bare by the learned Single Judge and in those circumstances, the matter was sent back to the learned Single Judge for deciding the question of desertion afresh.

During the pendency of the present appeal, post remand, efforts were made for resolving the dispute amicably; on 19.8.2015, it was noticed by this Court in the order-sheet that the appellant wanted the ex-parte decree granted in favour of the respondent-husband Nandlal to be set-aside as she wanted to press for restoration of status as married wife of Nandlal. It was also noticed that the respondent-husband has since remarried with another woman namely Ambika in November, 1997 and out of second marriage, a child named Aditya was born and was aged 15 years and that there was no possibility for restoration of matrimonial home with the appellant. However, readiness and willingness to pay permanent alimony was expressed, the court directed deposited Rs.12,00,000/- towards part payment of amount of permanent alimony and it was directed that the said payment would remain subject to final decision of the present appeal, which amount of Rs.12,00,000/- was deposited by the respondent as noticed by order-sheet dated 5.1.2016.

It is submitted by learned counsel for the appellant that the trial court committed error in granting the decree on the ground of desertion, inasmuch as, the respondent had failed to plead and prove the necessary ingredients for proving the ground of desertion. It was submitted that irrespective of the fact that matter was proceeding ex-parte against the appellant, it was incumbent for the trial court to objectively assess the evidence available on record, which clearly indicates that no ground is made out as envisaged by provisions of Section 13(1)(ib) of the Act.

Reference was made to the second explanation to Section 13 and it was submitted that there was reasonable cause for the appellant to leave the matrimonial home, inasmuch as, circumstances were created forcing her to leave the matrimonial home. It was submitted that the very fact that FIR was lodged by the respondent alleging fraud on 25.10.1993, necessarily means that before 7.12.1991, on account of allegations made, atmosphere was created which resulted in the appellant leaving the matrimonial home and therefore, the necessary ingredients for providing desertion are not available and consequently, the finding of the trial court in this regard deserves to be set-aside. It was prayed that the appeal be allowed and the judgment impugned be set-aside.

Vehemently, opposing the submissions, it was submitted by learned counsel for the respondent that from the material available on record, it was apparent that the appellant has deserted the respondent for a continuous period of two years immediately preceding the presentation of the petition and had no cause for doing so; the submissions made by learned counsel for the appellant seeking to allege that there was reasonable cause on account of the fact that the respondent lodged an FIR on 25.10.1993 alleging fraud against the petitioner is, in fact, seeking premium on the wrongs committed by her. It as further submitted that from the evidence available on record, the desertion is proved, inasmuch as, the appellant chose not to contest the petition after putting an appearance before the trial court; even after passing of the impugned judgment, application under Order IX, Rule 13 CPC filed by the appellant was also dismissed by the trial court on 19.1.1996 and therefore, the appellant has no cause.

It was submitted that the desertion is also proved from the very fact that the appellant did not take any steps for restitution of conjugal right, if she had any interest in restoration of the matrimonial home.

Further submissions were made that present is a typical case of irretrievable break down of marriage, inasmuch as, admittedly parties are living separately since 7.12.1991 i.e. over 25 years now and after passing of the ex-parte decree and dismissal of application under Order IX, Rule 13 CPC and before the respondent was served with a notices in the present appeal, the respondent had contracted another marriage and has a child from the said wedlock. It was prayed that the judgment passed by the trial court is justified and same does not call for any interference.

Further submissions were made that under the directions of this Court the respondent had already paid a huge sum of Rs.12,00,000/- towards permanent alimony and is prepared to pay further reasonable sum in this regard and therefore, the appeal filed by the appellant deserves to be dismissed.

Reliance was placed on Sujata Uday Patil v. Uday Madhukar Patil : (2006)13 SCC 272.

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

During the pendency of the appeal, an application under Order XLI, Rule 27 CPC was filed by the appellant inter-alia for placing on record the copy of judgment dated 11.6.2008 passed by the Additional Sessions Judge No.2, Bikaner in Cr. Appeal No.2/2007 (State of Rajasthan v. Nandlal) and copy of the statement dated 18.10.2001 recorded in the criminal trial before the Court of Additional Civil Judge (Jr.Div.)-cum- Judicial Magistrate, Ist Class, No.2, Bikaner. In the said application, except for indicating that the documents came into existence during the pendency of the appeal, nothing has been indicated as to how the documents were relevant for the proper adjudication of the present appeal and even during the course of submissions in the present appeal, no reference was made to either the application and / or the documents annexed with the application. In view thereof, besides the fact that no submissions were made qua the application and documents, even otherwise, there is no substance in the application, the same is, therefore, dismissed.

The essential condition for proving the ground of desertion are (i) – factum of separation and (ii)- intention to bring cohabitation permanently to an end (animus deserendi). Similarly, two elements are essential so far as deserted spouse is concerned, (i)- absence of consent and (ii)- absence of conduct giving reasonable cause to spouse leaving matrimonial home to form necessary intention aforesaid. In the present case, the husband, in the petition seeking divorce alleged that on 7.12.1991 uncle of the appellant without permission took the appellant to Bikaner from Sardarshahar and whereafter, she did not return back to the matrimonial home till 25.10.1993 and continued to deny to live with the respondent at Sardarshahar. Efforts were made by the respondent and his close relatives before 25.10.1993 for bringing her back which was responded by counter proposal to the respondent to go and live with the wife at her parental home. It was also alleged that besides not returning back to the matrimonial home at Sardarshahar, the appellant did not visit the place where the respondent was serving, however, all the efforts made in this regard failed and it was apparent that the wife has deserted him. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

As already noticed herein-before, after service though the appellant put in appearance, whereafter as the counsel pleaded no instructions, the matter proceed ex-parte against the appellant and on behalf of the respondent, 04 witnesses were examined.

The respondent appeared as AW-1 and reiterated the contents of the petition. Further assertions were made that despite several efforts being made by the respondent and people of the Society, the appellant did not return back to the matrimonial home.

AW-2 Bharat Bhushan Arya, a lawyer by profession and Secretary of Mali Samaj, Bikaner and Vice President of Rajasthan Mali Samaj appeared in the witness-box and stated that despite efforts being made by the respondent, the father, uncle and aunty of the appellant did not send the appellant back to the matrimonial home. He tried to convince the appellant / parties to go back to the matrimonial home, which was rejected and it was suggested that the respondent should go and live with them.

AW-3 Banwari Lal, elder brother of the respondent also stated that uncle of the appellant took her to Bikaner from Sardarshahar and stated that the respondent can come and live with them, efforts were made to bring the appellant with them, the uncle of the appellant refused, efforts were made through Mali Samaj, however, that also did not succeed. AW-4 Rajendra, a neighbour of the respondent was examined, who also stated similar facts regarding uncle of the appellant taking her back to parental home and stated that the respondent can come and live with them.

From the material available on record as well as the submissions made by counsel for the parties, it is apparent that the appellant had left the matrimonial home on 7.12.1991 and despite the efforts made by the respondent, his family members and people of Mali Samaj, the appellant did not return back to the matrimonial home, on the other hand, it was insisted that in case, the respondent wants, he can come and live at the parental home of the appellant.

No submissions were made by counsel for the appellant to indicate that any efforts were made by the appellant to get back into the matrimonial home including filing of petition under Section 9 of the Act for restitution of conjugal rights.

So far as the submissions made by learned counsel for the appellant seeking to make out a case of reasonable cause in terms of second explanation to Section 13 is concerned, the said explanation reads as under:- “Explanation.- In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.”

The submission made on behalf of the appellant is that from the dates indicated in the petition, whereby the appellant left the matrimonial home on 7.12.1991 and a FIR was lodged by the respondent alleging fraud on 25.10.1993 against the appellant, necessarily means that the atmosphere in the matrimonial home was such that it forced the appellant to leave the matrimonial home and therefore, she had a reasonable cause and therefore, the necessary ingredients as indicated in the explanation has not been fulfilled.

Besides the fact that no such plea was available before the trial court and consequently, there is no material available on record regarding the alleged reasonable cause for the appellant to leave the matrimonial home, it was the specific case of the respondent that as soon as he came to know of the fraud having been committed by the appellant, he lodged the FIR on 25.10.1993, this is not the case of the appellant that after the FIR was lodged that she left the matrimonial home and / or that the respondent came to know about the facts, which led to filing of the FIR even long prior to 7.12.1991 and the atmosphere was so poisoned that she have no option but to leave the matrimonial home. As the respondent has clearly indicated that the FIR was lodged on 25.10.1993 immediately on coming to know of the fraud on 25.10.1993, that cannot be a reasonable cause on 7.12.1991 for the appellant to leave the matrimonial home and therefore, the submissions made by learned counsel for the appellant seeking to plead reasonable cause for the appellant to leave the matrimonial home has no basis.

The ingredients of desertion as noticed hereinbefore i.e. factum of separation and intention to bring cohabitation permanently to an end are both proved and the defence as sought to be now projected in the appeal based on the available material having been found to be non-existent, the trial court was justified in coming to the conclusion that the appellant has deserted the respondent without any reasonable cause and was further justified in granting decree for dissolution of marriage between the parties. So far as irretrievable break down of marriage between the parties is concerned, the facts as noticed hereinbefore, are apparent wherein the parties are living separately for over 25 years now, after the decree for dissolution of marriage was granted by the trial court and the application for setting aside ex-parte decree was also rejected and before the notices of the present appeal were served on respondent, he had contracted marriage way-back in the year 1997 and therefore, the test laid down by the Hon’ble Supreme Court in this regard as to whether the marriage can be saved in the circumstances, the answer to the said aspect would be a big ‘No’.

So far as grant of permanent alimony is concerned, in the submissions made before the Court, though no submissions were made by learned counsel for the appellant, learned counsel for the respondent offered to pay reasonable sum towards permanent alimony to the appellant and also prayed that the fact that a sum of Rs.12,00,000/- has already been paid under the interim directions of this Court, direction can be given. Looking to the over all circumstances of the case, though apparently, no material is available on record for determination of amount of permanent alimony, in view of the fact that the respondent was working as C.I. In the Police Department as noticed in the order-sheet dated 19.8.2015 (supra), in the opinion of this Court ends of justice would meet in case, the respondent is directed to make payment of a further sum of Rs.6,00,000/- by way of permanent alimony besides the sum of Rs.12,00,000/- already paid by the appellant under the directions of this Court dated 19.8.2015 (supra). The amount be paid within a period of three months from the date of this judgment.

In view of the above discussions, the appeal filed by the appellant has no substance, the same is, therefore, dismissed.

However, the respondent is directed to make further payment of a sum of Rs.6,00,000/- to the appellant by way of permanent alimony within a period of three months and the order dated 19.8.2015 (supra) passed by this Court directing payment of a sum of Rs.12,00,000/- by way of part payment of permanent alimony is made absolute.

No order as to costs.

(ARUN BHANSALI), J.

rm/-

DV case NOT to continue when original RCR case compromised and dismissed ! Rajasthan HC

  • Original RCR case is dismissed ( compromised between parties).
  • So magistrate strikes off names of parties in a DV case.
  • However the Sessions court strikes down that order (of magistrate !! ) .. so parties run to HC.
  • Hon HC orders that once the original RCR case is dismissed based on a compromise between parties then the DV case has no reason to continue !!

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

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

ORDER IN
S.B. Cr. Misc. Petition No.4990/2015
(With Stay Application No.4697/2015)

1. Vishnu Dutt Goyal son of Shri Govind Prasad Goyal,
resident of Friends Colony, Alwar C/o Bajaj Bazar, Near Tripolia Temple, Alwar

2. Dr. Madan Mohan Gupta son of late Ramswaroop Marjiya,
resident of Kiran Palace, Near Oswal Chungi Naka, Gangapurcity, District Sawaimadhopur (Rajasthan)

…Petitioners

Versus

Smt. Kalpana Gupta @ Mamta Daughter of Late Shri Vishnu Chand Gupta, wife of Gaurav Agrawal,
by caste Mahajan, resident of A-207, 80 feet Road, Mahesh Nagar, Jaipur

…Respondent

Date of Order ::: 20.09.2016

Present
Hon’ble Mr. Justice Mohammad Rafiq

Mr. Rajneesh Gupta, counsel for petitioners
Mr. Shashi Bhushan Gupta, counsel for respondent
http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick


By the Court:-

This petition under Section 482 of the Code of Criminal Procedure has been filed by petitioners challenging order dated 14.08.2015 passed by learned Additional District and Sessions Judge No.10, Jaipur Metropolitan, Jaipur, in Criminal Appeal No.234/2015, by which he set aside order dated 07.04.2015 passed by learned Additional Civil Judge-cum-Metropolitan Magistrate No.19, Jaipur Metropolitan, Jaipur, in Case No.297/2014, by which learned trial court allowed the application filed by petitioners and ordered to strike out the names of petitioners from the array of non-applicants in the proceedings under Section 12 of the Protection of Women From Domestic Violence Act, 2005, initiated at the instance of the respondent against her husband Gaurav Agrawal. The petitioners happen to be the husband of sister of Gaurav Agrawal.

Learned counsel for the respondent has produced for perusal of the court the order dated 12.12.2015 passed in the Lok Adalat attached to the courts at Hindauncity, and submitted that the matter has been compromised between the parties before the Family Court, where the application filed by the husband under Section 9 of the Hindu Marriage Act has been dismissed on the basis of the compromise.

If that be so, there is no reason why the proceedings under the Domestic Violence Act continue.

In that view of the matter, the order dated 14.08.2015 passed by learned Additional District and Sessions Judge No.10, Jaipur Metropolitan, Jaipur, in Criminal Appeal No.234/2015, is set aside and the order dated 07.04.2015 passed by learned Additional Civil Judge-cum-Metropolitan Magistrate No.19, Jaipur Metropolitan, Jaipur, in Case No.297/2014, is restored.

Criminal miscellaneous petition is accordingly allowed in view of the compromise between the parties. This also disposes of the stay application. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

(Mohammad Rafiq) J.

//Jaiman//94

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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting


PostGrad Techie wife from top IT firm takes ONLY 8 lakhs 2 quash 498a 406 & w/draw CrPC125. Fate of Indian men

Post Grad Techie wife from top firm takes ONLY 8 lakhs to quash 498a 406 & withdraw CrPC125. Fate of men in India.

How Indian men pay day in and day out. How Indian men are made to pay in courts, whether they are right or wrong. How a man who won divorce on grounds of cruelty still pays to quash 498a and withdraw Sec 125 case !!

This appeal arises from order dated 17.12.2014 in Case No.206/2011, by the Family Court No.1, Jaipur granting divorce under Section 13(1)(i-a) of the Hindu Marriage Act pursuant to an application by respondent (in this case , i.e.) Husband, on grounds of cruelty.

Key notes

  • respondent is a B.Tech in Software employed in Tata Consultancy Services and has even been on deputation to the Office of his employer in Paris.
  • They were married on 16.02.2010 at the age of approximately 22 years. Today they are approximately 28 years of age.
  • Husband has won divorce on grounds of cruelty
  • Wife has filed 498a, 406 and is also holding the CrPC 125 gun
    ……. She takes ONLY 8 lakhs to quash the criminal cases !!! ……….

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

ORDER
D.B. CIVIL MISC. APPEAL NO.107/2015

Rashmi Sharma W/o Ashwini Sharma D/o Shri Mohan Lal
Sharma, By Caste Brahmin, Age about 27 years, Presently
residing at Baroda Mev, Laxmangarh, Distt. Alwar
(Rajasthan). ….Appellant-Non-Applicant

Versus

Ashwini Sharma S/o Shri Hari Shankar Sharma, By Caste
Brahmin, age About 27 years, R/o House No.430A, Katewa
Nagar, New Sanganer Road, Tehsil & Distt. Jaipur. …Respondent-Applicant

DATE: 20.09.2016

HON’BLE THE CHIEF JUSTICE MR. NAVIN SINHA
HON’BLE MR.JUSTICE VIJAY KUMAR VYAS

Mr. Sudesh Bansal &
Mr. Aatish Jain, for the appellant.
Mr. Rakesh Chandel on behalf of
Mr. Poonam Chand Bhandari, for the respondent.


The present appeal arises from order dated 17.12.2014 in Case No.206/2011, by the Family Court No.1, Jaipur granting divorce under Section 13(1)(i-a) of the Hindu Marriage Act (hereinafter referred to as ‘the Act’) pursuant to an application presented by the respondent on grounds of cruelty.

Learned counsel for the parties jointly submit that the appellant is a Postgraduate and the respondent is a B.Tech in Software employed in Tata Consultancy Services and has even been on deputation to the Office of his employer in Paris. They were married on 16.02.2010 at the age of approximately 22 years. Today they are approximately 28 years of age. As adults they have realised their incompatibility of companionship with each other. They have therefore taken a matured decision as adults to part ways respectfully without rancour or ill-will against each other and for that reason the appellant is not interested in pursuing the appeal for reasons recorded hereinafter.

The respondent has agreed to pay and the appellant has agreed to accept a sum of Rs.8,00,000/- (Rs. Eight lacs) only in full and final settlement as one time permanent alimony to be paid to the appellant under Section 25 of the Act. This amount shall be paid by the respondent to the appellant within a period of four weeks from today by way of a Demand Draft in the name of the appellant. Since this undertaking has been given in course of this proceeding leading to a consent order, non-compliance of the undertaking may have its ramifications and consequences for the respondent. The appellant agrees that she has no other civil or financial claims against the respondent and shall not raise any such claims hereinafter.

Counsel for the appellant further submits that she undertakes not to pursue Criminal Case No.23/281/2011 registered pursuant to FIR No.72/2011, dated 15.04.2011, Police Station Baroda Mev, District Alwar, presently pending before the Judicial Magistrate, Laxmangarh, Alwar under Sections 498A and 406 IPC and she has no objection if it is quashed. Likewise the appellant further agrees to withdraw the proceedings under Section 125 Cr.P.C. unconditionally bearing No.1073/2013 registered originally before the Family Court, Alwar, now transferred to the Court of the concerned A.D.J., Laxmangarh and in which no orders for payment of any kind has been passed till today. Counsel for the parties are further agreed that in the peculiar facts and circumstances of the case, it shall be treated as a ‘no fault divorce’ and the findings shall not be taken to have been affirmed.

We have considered the submissions on behalf of the parties.

Both of them were married at a young age and are still in their youth with their whole life ahead of them. If as matured adults they have taken a conscious decision with regard to their incompatibility as human beings and have decided to part ways with respect to start their lives afresh, it becomes the duty of the Court to facilitate the same rather than to go by technicalities of the law.

While the appeal is disposed in terms of the settlement arrived at between the parties with regard to payment of one time permanent alimony with no further claims against each other, the withdrawal of the proceedings under Section 125 Cr.P.C. by the appellant, we consider the present a fit case to invoke our inherent powers under Section 482 Cr.P.C. for quashing Criminal Case No.23/281/2011 under Sections 498A and 406 IPC pending before the Judicial Magistrate, Laxmangarh. In (2003) 4 SCC 675, B.S. Joshi And Others Vs. State of Haryana And Another, dealing with quashing of a complaint under Section 498A, 323 and 406 IPC declined by the High Court for the reason that it was not compoundable, in view of the subsequent developments when the parties to the matrimonial dispute had settled their differences and agreed for mutual divorce, it was observed as follows:- “12. The special features in such matrimonial matters are evident. It becomes the duty of the Court to encourage genuine settlements of matrimonial disputes. 13. The observations made by this Court, though in a slightly different context, in G.V. Rao v. L.H.V. Prasad [(2000) 3 SCC 693] are very apt for determining the approach required to be kept in [5] DBCMA 107/2015 RASHMI SHARMA Vs. ASHWINI SHARMA view in matrimonial dispute by the courts, it was said that there has been an outburst of matrimonial disputes in recent times. Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their “young” days in chasing their “cases” in different courts. 14. There is no doubt that the object of introducing Chapter XX-A containing Section 498-A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498A was added with a view to punishing a husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. The hyper- technical view would be counter productive and would act against interests of women and against the object for which this provision was added. There is every likelihood that non-exercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier. That is not the object of Chapter XX-A of the Indian Penal Code.”

The criminal proceedings pending before the Judicial Magistrate, Laxmangarh are therefore quashed.

The present appeal is disposed in terms of the consent and mutual settlement arrived at between the parties.

(VIJAY KUMAR VYAS),J.
(NAVIN SINHA),C.J.
/KKC/

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….”

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

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.

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