Kanti Prasad, Alias Sonu @APPELLANT@Hash State of Rajasthan & Ors

Appellant has preferred this appeal aggrieved by judgment & order dated 05.10.2016, passed by Additional Sessions Judge, Women Atrocities

Cases, Court No.1, Kota, whereby Court below has convicted the appellant for offence under Section 304-B, 498A of I.P.C. and he has been

sentenced to undergo rigorous imprisonment for three years and fine of Rs.2,000/-, on non payment of fine appellant is required to further undergo

simple imprisonment for two months for offence under Section 498-A I.P.C. and he has been sentenced to undergo rigorous imprisonment for seven

years and to pay fine of Rs.5,000/-, on non payment of fine he is required to undergo simple imprisonment for six months for offence under Section

304-B

I.P.C. Â

The factual matrix of the case are that a complaint was lodged by father of the deceased on 09.07.2008, which was referred by the Court to the

Police and F.I.R. was registered on 26.07.2008. The allegations in the F.I.R. (Ex.P-10) is that marriage of the deceased was solemnized with the

appellant on 16.11.2005, her mother-in-law, sister-in-law and husband harassed her, on account of demand of dowry, Rs.50,000/- was demanded from

her. It is mentioned in the F.I.R. that Rs.50,000/was given to her on 09.02.2006 . It is also mentioned in the F.I.R. that daughter of the complainant has

committed suicide by jumping in the river or she might have been thrown in the river. It is also mentioned that in-laws were harassing her and were

demanding Rs.3,00,000/-. Police after due investigation submitted charge-sheet only against the present appellant.

Learned trial Court after hearing charge arguments framed charges for offence under Sections 498-A and 304-B of I.P.C. against the present

appellant. Appellant denied the charges and sought trial, whereupon eleven witnesses were examined on behalf of the prosecution and eleven

documents were exhibited. Accused-appellant was examined under Section 313 Cr.P.C. On behalf of the defence, two witnesses were examined and

five documents were exhibited.

Court below after hearing the arguments has convicted the appellant for offence under Section 304-B, 498-A of I.P.C. and has sentenced him as

hereinabove mentioned, aggrieved by which the present appeal has been preferred.

It is contended by counsel for the appellant that there is no allegation with regard to demand of dowry soon before death of the deceased. The only

allegation is that Rs.50,000/- was demanded by the appellant for constructing the rooms to increase his income.

It is also contended that the deceased died on 20.06.2008. The murg report of the same was registered on the same day which is exhibited as Ex.P-

Family members of the deceased did not lodge any report rather his father Purushotam gave statement Ex.D-1 wherein, there was no allegation

with regard to demand of dowry. The only allegation was that mother-in-law of deceased was not happy with the dowry articles and was also not

happy with the deceased as no child was born out of the wedlock.

It is also contended that there is inordinate delay of nineteen days in lodging of complaint.

My attention has been drawn towards the statement of Dheeraj Sharma (PW-1) cousin of deceased who has also deposed that deceased was not

happy with her in-laws.

My attention has also been drawn towards statement of father of the deceased Purushotam Sharma (PW-2) who has mentioned that the appellant

started demanding money after three months of marriage. Appellant demanded Rs.50,000/-, which was given to him. He has also mentioned that

mother-inlaw and the appellant harassed her as no child was born out of the wedlock.

My attention has also been drawn towards the complaint, wherein, it is mentioned that on 09.02.2006, Rs.50,000/- was given to the deceased. PW-

5 Draupadi Gautam mother of the deceased, in her cross-examination has specifically admitted that except for Rs.50,000/-, no other demand was

raised by the inlaws.

It is also contended that the deceased was having

relationship with a boy and probably she committed suicide due to some dispute with that boy.

Counsel for appellant has placed reliance on “Baijnath and others Vs. State of Madhya Pradesh†(AIR 2016 SC, 5313), where there were

allegations of cruelty and harassment of deceased and demand of motorcycle as dowry. The allegations were not supported by evidence of witnesses.

On the contrary, evidence fully consolidated the defence version that no such demand was made. Apex Court held that if ingredients of cruelty and

harassment are not proved by direct and cogent evidence, benefit of presumption under Section 113-B of Evidence Act is not available. Apex Court

also held that factum of unnatural death in matrimonial home within seven years of marriage is not sufficient to hold accused persons guilty of offence

under Sections 304-B and 498-A IPC.

Reliance has also been placed on “Rajeev Kumar Vs. State of Haryana (2013) 16 SCC 640,†wherein it was held by Apex Court that the fact

that soon before the death the deceased woman was subjected to cruelty or harassment for or in connection with demand for dowry is to be proved

beyond reasonable doubt, the presumption under Section 113B of Evidence Act would then arise, requiring accused to rebut the same.

Learned Public Prosecutor has opposed the criminal appeal. His contention is that Court has properly dealt with the evidence and has not

committed any error in arriving at the conclusion of the guilt of the appellant. It is contended that appellant has admitted receiving Rs.50,000/- after

marriage which establishes that there was demand of dowry and harassment on account of non fulfillment of demand of dowry.

I have considered the contentions and have perused the judgment passed by the Court below as well as the record.

Death of the victim has occurred as a result of drowning. She jumped in the river and her body was recovered in the presence of Mukesh Sharma

(PW-7). Dr. Ashok Mundra (PW-8) has also stated in his examination in chief that cause of death was due to drowning. Om Prakash Sharma (PW-

9) has also stated that deceased jumped in the river and her body was recovered after 20 to 25 minutes of her jumping in the river.

In the present case in hand, there is no averment that soon before her death, the victim was subjected to any harassment for or in regard to

demand of dowry. Mother of the victim Draupadi Gautam (PW-5) has clearly deposed that only Rs.50,000/- was demanded and thereafter there was

no demand. As per the complaint this amount was paid to the victim on 09.02.2006 i.e. three months after marriage. It has come in evidence that this

amount was taken as loan for constructing rooms to increase the rental income. The allegation in the complaint that Rs.3,00,000/was demanded soon

before death is not substantiated by oral evidence and both mother and father of the deceased have not made any averment with regard to this

demand.

In view of the above, prosecution has utterly failed to establish the fact of demand of dowry soon before death of the victim. Victim’s body

was recovered on 20.06.2008 and body was handed over to father of the victim and his statement was recorded which has been exhibited as Ex.D-1.

He did not level any allegations with regard to dowry. The only allegation in the statement was against mother-in-law and that too was on account of

deceased not begetting any child even after three years of marriage. Complaint in this case was lodged after an inordinate delay.

19 Since, prosecution has failed to establish the demand of dowry or cruelty, the present appeal deserves to be and is accordingly allowed. Judgment

and order passed by the Court below is quashed and set-aside. Appellant is acquitted of the charges.

In the result, appeal filed by appellant is allowed. The judgment and order dated 05.10.2016 passed by Additional Sessions Judge, Women

Atrocities Cases, Court No.1, Kota in Sessions Case No.11/2009 is set aside. The appellant Kanti Prasad Alias Sonu Son Of Shri Kedar Prasad

Gautam is acquitted of the charges levelled against him. He is in jail, he be set at liberty forthwith, if not required in any other cases or for any other

purpose.

Appellant is directed to furnish personal bond in the sum of Rs.20,000/- and a surety bond in the like amount in accordance with Section 437-A of

Cr.P.C. before the Deputy Registrar (Judicial) within two weeks from the date of release to the effect that in the event of filing of Special Leave

Petition against this judgment or on grant of leave, the appellant on receipt of notice thereof, shall appear before the Hon’ble Apex Court. The bail

bond will be effective for a period of six months.    Â

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