State of U.P. vs Onkar Dubey and Others

R.C. Deepak, J.—The State of U.P. after the grant to leave to appeal, has preferred this Government appeal against the judgment and order dated 6th March, 2002, passed by Sri Kishore Ram, Special Judge (E.C. Act)/Addl. Sessions Judge, Gorakhpur in Sessions Trial No. 496 of 1996 whereby he acquitted the accused Respondents Onkar Dubey, Ram Sabal Dubey, Ved Prakash Dubey and Smt. Shita Devi under Sections 498A, 304B and 201, I.P.C. pertaining to Police Station Sikriganj, district Gorakhpur.

The brief facts emerging from the record are that Smt. Ansuiya was the sister of Vivekanand Ojha/ informant. Her marriage was performed with Onkar Dubey son of Ram Sabal Dubey resident of village Bankata, Police Station Sikriganj, District Gorakhpur in June, 1999. The dowry and gifts were given in marriage ceremony according to the status of the father of the victim. The gauna ceremony was performed after two years of the marriage. It is alleged that just after the gauna ceremony the accused concerned started to make demand of motorcycle and television in dowry and for this the victim was harassed, humiliated and tortured. It is further alleged that her murder was committed on 21.4.1996 and her dead body was removed without tendering any information to her parents.

With these allegations, the informant submitted an application at the said police station and a case as Crime Case No. 149 of 1996 under Sections 498A, 304B and 201, I.P.C. was registered on 23.4.1996 at 11.30 p.m. (Ext. Ka-4) against the accused.

The investigation into the case was entrusted to Sri Rajesh Kumar, Circle Officer (P.W. 5) who visited the place of occurrence, prepared the site plan (Ext. Ka-2), took down the statements of the witnesses and after completion of the investigation, submitted the charge-sheet (Ext. Ka-3). The case was committed to the Court of Sessions. The charges under the relevant sections were framed against them. The accused pleaded not guilty and claimed to be tried.

To establish its case, the prosecution examined as many as six witnesses. Vivekanand Ojha (P.W. 1), Ram Girjesh Ojha (P.W. 2), Ravindra Nath Dubey (P.W. 3) and Lalji Ojha (P.W. 4) are the witnesses of fact whereas the remaining two are formal one. The accused examined Ram Milan Misra (D.W. 1), Smt. Indrasani Dubey (D.W. 2) and Vindhyavasani Prasad Dubey (D.W. 3) in their defence.

The trial court acquitted the accused against which the present Government appeal has been filed already referred-to-above.

We have heard Sri M. C. Joshi, learned Addl. Government Advocate for the State and Sri R. P. Tripathi, learned Counsel for the accused Respondents and perused the record.

The learned State counsel has argued that the deceased Ansuiya was harassed and she was done to death for dowry, but the trial court failed to appreciate the evidence on record and the prevailing circumstances in deciding the case on merit.

On the other hand, learned Counsel for the accused-Respondent has vehemently argued that the trial court has properly gone through the evidence on record and the prevailing circumstances and being convicted with the same, passed the order of acquittal. Therefore, no interference in the order of acquittal is warranted.

There is controversy in regard to the actual date of solemnization of the marriage of the victim Ansuiya with Onkar Dueby accused-Respondent. The parents of the victim disclosed that the marriage was performed in June, 1990, whereas accused-Respondents disputed it and proposed 10th July, 1988, the date of marriage. However, there is no dispute of the marriage of the said couple.

The statements of prosecution witnesses Vivekanand Ojha (P.W. 1), Ram Girjesh Ojha (P.W. 2), Ravindra Nath Dubey (P.W. 3) and Lalji Ojha (P.W. 4) indicate that there was demand of motorcycle and television in dowry just after the gauna ceremony, but this demand was never made by the accused to the parents of the victim/deceased but through her and for this she was beaten, humiliated and tortured. The evidence of Ram Girjesh Ojha, the father of the deceased is alarming one wherein he states that his son-in-law used to beat his daughter expressing that she was ugly and he did not like her, but on the other hand he states that the family members of his son-in-law had seen his daughter prior to the marriage and they found her suitable for the marriage and thereafter the marriage was settled and performed. He further states that at the time of marriage, his son-in-law was an unemployed youth.

On the basis of these contradictory evidences the learned Counsel for the accused-Respondents has argued that there was no demand of dowry and no harassment was made to the victim. He has also drawn the attention of the Court towards the statement of accused-Respondent Onkar Dubey recorded u/s 313, Cr. P.C. wherein he disclosed that he was in Bangkok since 20.10.1992 to 19.4.1993 when the gauna ceremony was performed and in support of his contention the relevant documents, passport etc. have been filed as Ext. Kha-1 to Kha-8.

The defence case of the accused-Respondents is that the victim was suffering from ailment/ diarrhoea. She was brought to Dr. Surendra Nath Tiwari of village Mahadeva Bazar and on his advice she was being carried to the hospital/Gorakhpur, but she died on the way. Her cremation was performed on 23.4.1996 at about 10.00 a.m. at Rajghat, Gorakhpur, wherein the informant Vivekanand Ojha and certain persons of his village participated. The evidence of Vivekanand Ojha is relevant to be discussed here, as he has specifically stated therein that he and certain others of his village participated in the cremation, i.e., "Main aur mere gaon ke log daah sanskar mein shamil huye". His statement further suggests that one Smt. Pana Devi resident of the village of his sister/deceased had told him that the dead body of the deceased was blue and on the basis of which he suspected that she was administered poison.

The statement of Rajesh Kumar, Circle Officer/Investigating Officer (P.W. 5) support the defence case, as he has stated that he had interrogated Dr. Surendra Nath Tiwari of village Mahadeva Bazar, who disclosed to him that the deceased Ansuiya was brought to him for medical treatment and after necessary treatment he advised that she be carried to the hospital. His statement further goes to show that he also take down the statement of Israel, the rickshaw-puller, who told him that the condition of the victim was serious and he carried her on his rickshaw to Mahadeva Bazar. The accused Ved Prakash Dubey Ors.were on cycles accompanying him. They employed a jeep and shifted the victim to the jeep and carried her to somewhere for treatment.

The statements of D.W. 1 Ram Milan Mishra, whose daughter is married to the son of Ram Sabal Dubey, the accused-Respondent and Smt. Indrasani Dubey and Vindhyavasani Prasad Dubey support the case of defence that the deceased was ailing.

Now the crucial question crops up for consideration is whether the victim Smt. Ansuiya was done to death for dowry, as alleged by the prosecution or she died of ailment, as disclosed by the accused-Respondents? The statements of prosecution witnesses specially, Vivekanand Ojha and his father Ram Girjesh Ojha have already been discussed earlier to the judgment and their statements do not establish that there was demand of dowry, torture or humiliation to the victim for dowry. A perusal of the evidence of Investigating Officer and the defence witnesses Ram Milan Mishra, Ram Sabal Dubey and Vindhyavasani Prasad Dubey would show that the deceased Ansuiya was suffering from ailment and possible efforts were made to save her life, but she could not survive. Her cremation was made in presence of informant Vivekanand Ojha and certain others of his village. This also certifies that she died of ailment. The trial court appears to have considered all the evidences on record, oral as sell as documentary and the prevailing circumstances while passing the order of acquittal. The order of acquittal appears to be justified and we are also of the opinion that no interference in the same is warranted.

In above view of the discussions, the Government appeal lacks merit and is accordingly dismissed.

The accused-Respondents are on bail. Their bail bonds are cancelled and sureties are discharged. The trial court''s record be sent back.