Mewa Lal And (2) Ors. vs State Of U.P.
2012 Latest Caselaw 3953 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

  Court No. - 6
 

 
Criminal Appeal No.937 of 2003
 

 
Mewa Lal and others........Appellants
 
Versus
 
State of U.P.............Opposite Party.
 

 
Hon'ble Shabihul Hasnain,J.

This criminal appeal has been filed under Section 374 (2) of Criminal Procedure Code against the judgment and order dated 27.5.2003 passed by the Additional Sessions Judge, F.T.C., Pratapgarh in Sessions Trial No.362 of 2001 convicting the appellants Mewa Lal, Ram Sajeevan and Smt. Phoola Devi under Sections-498-A to under go rigorous imprisonment for two years each and a fine of Rs.2000/-and in case of default two months' additional rigorous imprisonment. They have also been convicted under Section-4 of Dowry Prohibition Act for undergoing rigorous imprisonment for one year each along with fine of Rs.1000/- and in case of default they will have to under go one months' further rigorous imprisonment. Both the punishments were to run concurrently.

The prosecution story, as narrated in the F.I.R., briefly stated are that informant Ram Newaj Yadav lodged first information at 12.30 P.M. on 19.6.2001 at police station-Baghrai to the effect that his younger sister Smt. Raj Pati was married in 1997 with accused Harish Chandra Yadav son of Sri Mewa Lal Yadav resident of Ram Das Pati, Jhanjhwara, District-Pratapgarh. At the time of marriage he had given dowry according to his ability, which was not to the satisfaction of the accused persons and they were demanding Rs.30,000/-. When their demand was not met, they tortured her sister Rajpati (deceased). Smt. Rajpati often complained to her parents for giving this money. When this demand of the accused persons could not be met, they killed informant's sister on 18.6.2001 and thrown her body into a well situated at some distance away from the village. On getting the information of this incident the informant got the case registered on the basis of this written report.

The F.I.R. of this case was registered on 19.6.2001 at G.D.R. No. 13 at 12.30 p.m. Information of this incident was given to Executive Magistrate by S.H.O. Concerned, who visited the place of occurrence; prepared Panchnama of the dead body of the deceased and after completing formalities, sent the dead body for medical examination.

On medical examination the cause of death was shown as died due to asphyxia as a result of anti-mortem drowning.

The F.I.R. of this case was registered under Section 304 B Section 34, 498-A, 201 IPC and Section-3/4 of the Dowry Prohibition Act. They were tried for these offenses and the learned Sessions Court has convicted the appellants of the offenses under Section 498-A IPC along with Section 4 of Dowry Prohibition Act only, while acquitting the accused-appellants under Section-304-B and 201 I.P.C. and Section-3 of the Dowry Prohibition Act.

Being aggrieved against the conviction and sentence passed against the appellants, present appeal has been preferred.

It is relevant to note that the State has not preferred any appeal against the acquittal of the appellants under Sections 304-B and 201 I.P.C. and Section 3 of the Dowry Prohibition Act. Non-filing of the appeal by the State will mean that this Court has to examine only the convictions, which have been made under Section 498-A IPC and Section 4 of the Dowry Prohibition Act.

I have heard Sri Vijay Bahadur Verma, learned counsel for the appellants as well as Sri Shiv Nath Tilhari, learned A.G.A. for the State and have gone through the material available on record.

With regard to acquittal of appellants under Section 304-B and 201 I.P.C. and Section 3 of the Dowry Prohibition Act, learned A.G.A. has referred the case laws settled by Hon'ble Supreme Court in the case of State of Andhra Pradesh: Thadi Narayana Vs. Thadi Narayana: State of U.P., 1961 DGLS(Soft. ) 252, has broadly speaking observed that High Court in absence of an appeal against acquittal by the State looses its power to reverse the judgments of acquittal in an appeal filed by the appellants under separate sections under which he has been convicted.

In the present case, learned counsel for the appellants has argued that once they have been acquitted under Section 304-B and 201 IPC as well as Section-3 of the Dowry Prohibition Act, they can not be convicted under Section-498-A and Section-4 of Dowry Prohibition Act because the same evidence and the statements are being used as the matterial for conviction, which have been used on the question of acquittal as well.

It has also been argued that Section-304 B IPC and 498-A are over-lapping Sections and one can not exist without the other.

Learned A.G.A., on the other hand, has been able to demonstrate that Section-498-A is an independent Section under the IPC and it can exist and operate separately from Section-304-B IPC. He has illustrated his argument by submitting that in case Section 304 B IPC is not available at all and there is no death of the married lady, Section 498-A IPC can be complained off, investigated, tried and the accused can be punished. Likewise Section 4 of the D.P.Act is also an independent Section and acquittal under Section-3 of the same Act would not mean that Section 4 can not be operative in the present appeal.

The argument of learned A.G.A. finds favour with the Court and the appellants are advised to argue on merits. The limited argument of the appellant is to the effect that the statement of P.W.-1 and 2, who are father and brother of the deceased respectively, are the sole testimony and the material on which the appellants are being convicted under Section 498-A and Section 4 of the D.P.Act.

Section 498-A is being quoted hereinafter for convenience: -

"498-A. Husband or relative of husband of a woman subjecting her to cruelty.- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation.- for the purpose of this section, "cruelty" means-

(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman: or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."

We see that the main ingredient of Section 498-A is cruelty and after the death of the lady, it is only the communication, which has taken place between her and the father and brother when she was alive. This could be the only material which has to be examined by this Court to see whether the element of cruelty as enshrined under Section-498-A is made out or not. As per the record, there is no documentary evidence of cruelty and harassment by the in-laws of the deceased. No letter was either written, or complaint was made by the deceased to any other person with regard to harassment and cruelty against the deceased. Both the witnesses, namely, P.W.-1 and 2 have corroborated each others' statement. At the same time, they have not been able to refer to any particular instance, place or time which can be taken in support of the authenticity of the statements of these witnesses.

P.W.-1 Ram Newaj in his cross-examination has categorically stated that he had never informed any officer regarding the action taken on the complaint of cruelty of his sister. This statement of P.W.-1 is available at page 6 of his cross examination in the records. In such a situation, it is only a communication between the deceased sister and brother P.W.1 and the deceased and the father P.W.-2, Harish Chandra, the husband is D.W.-1 in this case. He has clearly mentioned in his statement that he used to visit the family of his wife whenever he got opportunity of coming from Mumbai. He has also stated that he had visited in-laws place within one and half months prior to death of his sister. It is difficult to imagine that relations were strained between two families. If the prosecution is to be believed then the relations between two families should have been so strained that it would not be possible for the husband to be visiting the family of in-laws as frequently as has been made in the statement of D.W.1. It is not so that he was ever told about the cruelty being committed by his father and other family members. This goes to the root of the total evidence. Earlier, there was no written complaint or any F.I.R. There is also no documentary evidence of cruelty having been attributed to the appellants. There is no letter of the deceased or any independent prosecution witness, which can testify that the deceased used to complain about cruelty as required under Section 498-A. D.W.-1 Harish Chandra, who is husband and who took the stand as witness should have been confronted with the question about it that his father and other family members are pressing for demand of dowry and are treating the deceased in a cruel manner. In absence of such cross examination, I am not inclined to believe that the testimony of P.W.-1 and 2 is not made on the basis of emotions and in retaliation and reaction to the death of their sister/daughter. Brother and father are naturally most attached to their sister/daughter. The sudden loss of such a dear family member raises high emotions and some times facts become vague and hazy and are left to imaginations.

In the present case, I do not find that any strong and specific evidence has come out which can constitute the ingredients required for offenses under Sections-498-A of I.P.C.

Section-4 of the Dowry Prohibition Act, 1961  lays down as under:-

"4. Penalty for demanding dowry.- If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the  case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees:

Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months."

The court below has convicted the appellants under Section-4 of the D.P.Act as aforesaid. The evidence which is being used for establishing Section 4 of the D.P.Act has the same evidence which has been used for establishing Section 498-A. The sole basis of conviction under Section 498-A is the statement of P.W.-1 and 2. I have seen that P.W.-1 and D.W.2 although have corroborated each others' statement but there is no other documentary evidence. No other family members have been brought as a witness to establish the fact that dowry was being asked for by the appellants. Even the demand of dowry of Rs.30,000/-which was allegedly made at the time of marriage/Vidai is not established. No independent witness has been brought to prove this fact.

Marriage in our culture is a function which is normally attended by members of society in general and the family members in particular. When a demand for dowry is raised and some 'Manmutav' on the occasion of 'Vidai' has taken place, it is but natural that word must have spread at least amongst the family members. Some close relatives are sure to know the fact that additional amount of Rs.30,000/- was being demanded. It is also natural that in such a situation the village elders or the family members must have intervened and the matter is resolved amicably or on the basis of future assurance.

In the present case, P.W.-1 and 2 have both stated that they had assured payment of Rs.30,000/- in future. It appears strange that no witness to this fact has been named from the prosecution side. It is also strange that in the cross examination of the husband he has not been confronted with this fact that a demand of Rs.30,000/- was made at the time of marriage and 'Vidai' in which the husband must have been a natural witness. No question has been put to the husband regarding demand of Rs.30,000/- on the date of marriage/'vidai'. D.W.2, who is living in neighborhood of the accused-appellants have also been examined. Learned court below has given a finding that the statement of Munnu Lal, D.W.-2 can not be discarded or disbelieved. Munnu Lal in his statement has categorically mentioned that he has never heard of any 'Marpeet' or scuffle within the meaning of cruelty under Section 498-A. In such a situation, when the Court itself has believed the version of Munnu Lal, the benefit should naturally go to the accused-appellants. No demand of dowry has been established except for the statement of P.W.1 and D.W.2. The statement of D.W.-1 and 2 have also been believed. In such a situation, how the conviction under Section 498-A as well as Section 4 of D.P. Act can be upheld. The sessions court has apparently erred in evaluating the statement cumulatively and its effect on the outcome for reaching a conclusion.

As per above discussion, the Court feels that the conviction of the appellant under Section-498-A as well as Section-4 of the D.P.Act vide judgment and order dated 27.5.2003 as held by the Additional Sessions Judge, F.T.C., Pratapgarh in Sessions Case No.362 of 2001 can not be upheld.

In the result, the appeal is allowed. The conviction and sentence passed against the appellants under Section 498-A I.P.C. and Section 4 of the Dowry Prohibition Act, is set aside. The appellants are acquitted under these Sections also. They are already on bail. Their bail bonds shall stand discharged. The amount of fine, if already deposited, shall be released in favour of the appellants.

Order Date :- 4.9.2012

RKM.