Manoj vs State Of U.P.
2022 Latest Caselaw 3866 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 52
 

 
Case :- CRIMINAL APPEAL No. - 1352 of 2006
 

 
Appellant :- Manoj
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Ambrish Kumar,A.P. Singh,Akhilesh Srivastava,P.S.Gupta,V.S.Rajpoot
 
Counsel for Respondent :- Govt. Advocate,Y.K. Srivastava
 

 
Hon'ble Narendra Kumar Johari,J.

The present appeal has been filed by the appellant- Manoj against the judgment and order dated 23.02.2006 passed by learned Additional Sessions Judge, Fast Track Court No. 1, Etah, in Session Trial No. 800 of 2004 (State Vs. Manoj & Another), arising out of Case Crime No. 64 of 2004, under Sections 498A, 304B, 201 IPC and Section 3/4 D.P. Act, Police Station Rijor, District Etah, convicting the appellant for the offence under Section 304B, 498A IPC and sentencing him to undergo for ten years imprisonment for the offence under Section 304B IPC and under Section 498A IPC to undergo for two years imprisonment and to pay a fine of Rs. 2000/-, in default of payment of fine, he will further to undergo for two months simple imprisonment. Both the sentences to run concurrently.

None present on behalf of the appellant. Ms. Gauri Dubey, Advocate (A/G 0183/2019) is being appointed as Amicus Curiae. Sri O.P. Mishra, learned AGA for the State is present.

In short the prosecution case is that informant Mohan Lal lodged the FIR with contention that his sister Hemlata @ Lovely was married with accused/ appellant Manoj one year prior. In the marriage the parents of Hemlata @ Lovely had given dowry in accordance with their capacity. After the marriage when his sister went to her matrimonial home, her husband started demanding motorcycle as additional dowry. When she returned from her matrimonial home, she informed regarding the said demand to her brother. Again she went her matrimonial home on 15.04.2004 by way of Gauna Ceremony. At that occasion also Manoj asked for Hero Honda motorcycle as dowry. One Sachine, who was the friend of Manoj also supported his demand. When informant's sister went to her matrimonial home after her Gauna, her husband carried her at the house of his brother-in-law (Bahnoi) Matadeen. On 25.04.2004 his sister and brother-in-law Manoj had gone to Etah for medical treatment. Husband Manoj and his friend Sachin strangulated Hemlata as their demand for motorcycle could not be fulfilled by parents of Hemlata. After strangulation, they hanged her dead body with the roof. On the above written Tehrir, the FIR of the occurrence was lodged at Police Station concerned against the husband of deceased Manoj and his friend Sachin under Sections 498A, 304B, 201 IPC and Section 3/4 D.P. Act on 28.04.2004.

The investigation was entrusted to C.O. Brajesh Singh, who inspected the spot, sketched the spot map, prepared inquest report, photo Lash, the letter to C.M.O., Challan Lash etc. and sent the dead body for post mortem. After completion of the investigation, the I.O. submitted police report in the Court concerned under Section 173(2) Cr.P.C. against accused persons Manoj & Sachin under Section 498A and 304B IPC. Learned Trial Court framed the charges against them under Section 498A and 304B IPC. The accused persons denied and abjoured the charges. He pleaded not guilty and requested for trial.

On behalf of prosecution P.W.1- Mohan Lal, P.W. 2- Netrapal, P.W.3- Constable Om Prakash, P.W.4- Dr. A.K. Saxena had given their evidence. Since learned counsel for the defence accepted the genuineness of chik FIR (Exhibit Ka-2), spot map (Exhibit Ka-5), documents related to inquest ( Exhibit Ka 7 to 11), copy of the G.D. (Exhibit Ka -12), charge sheet (Exhibit Ka-13), hence the concerning witnesses have not been summoned to prove the documents.

In his oral evidence witness P.W.1, Mohan Lal, the informant, proved the fact of demand of dowry made by accused persons. He stated that the accused Manoj and his friend had demanded motorcycle with him for which the informant had shown his inability. They also repeated the demand of motorcycle with her sister Hemlata @ Lovely when she had gone to her matrimonial home in Vidai. After returning from there, she had communicated their aforesaid demand to applicant. On 25.04.2004, accused Manoj and his friend Sachin, killed his sister and hanged on roof with her Tahmad to show suicide. The witness P.W.1 further stated that he has lodged the FIR on 28.04.2004 at P.S. concerned.

P.W.2, Netrapal, who was the father of deceased Hemlata @ Lovely in his evidence has also proved the demand of motorcycle made by his son-in-law Manoj. The witness stated that his daughter was being tortured by her husband in matrimonial home. His friend Sachin also had supported the demand of motorcycle on 15.04.2004 at the time of Gouna of his daughter. On 26.04.2004, he got the information by a resident of Village Wahidpur that his daughter had committed suicide. After getting the information, when this witness reached at Village Wahidpur, he found the dead body of his daughter, which was lying at a cot with marks of injuries. The villagers told him that his daughter had been killed by Manoj and Sachin. Thereafter, his son informed the police.

Witness P.W.3, constable Om Prakash in his oral statement had stated that on 26.04.2004, when he was posted at P.S. Rijor, Netrapal the father of Hemlata @ Lovely, had given a tehrir that his daughter had committed suicide by hanging herself. Thereafter, on 28.04.2004, Mohan Lal the son of Netrapal had given a tehrir for murder on the basis of which the FIR of the present case has been lodged. The witness has proved the chik FIR as well as copy of G.D.

Witness P.W.4- Dr. A.K. Saxena, who had carried the autopsy of deceased Hemlata @ Lovely proved the post mortem report in his evidence. He had stated that there was ligature mark around the neck of deceased, hyoid bone was broken and cause of death was due to asphyxia as a result of strangulation.

After conclusion of prosecution evidence, the statement of accused persons Manoj and Sachin was recorded under Section 313 Cr.P.C. In his statement accused Manoj stated that he had never demanded any dowry and deceased had committed suicide. The witnesses had given false evidence against him. The investigation was biased. The another accused Sachin denied that he never demanded any motorcycle either from the deceased or her parents. The witnesses have given false evidence against him and he was implicated in the offence due to the reason of enmity.

Learned Trial Court after considering the facts and evidence on record, vide order dated 23.02.2006, acquitted the accused Sachin as prosecution was failed to prove the charges against him. So far as the accused Manoj is concerned, the trial Court further concluded in the judgment that prosecution was succeeded to prove the charges of offences against accused Manoj accordingly learned Trial Court had convicted him for the offence defined under Sections 304B and 498A. The aforesaid conviction order has been challenged by the accused appellant Manoj by way of present appeal.

On behalf of the appellant learned Amicus Curiae has submitted that the appellant is innocent. The prosecution could not prove the fact of demand of any dowry. At the time of death, the deceased was residing at the house of sister of appellant. He does not know, who had committed the murder of his wife. There was no eyewitness of the occurrence. Prosecution has failed to prove the charges of offence against accused appellant. The appellant has wrongly been convicted by the Trial Court, hence the appeal deserves to be allowed and conviction order of the trial Court is liable to be set aside.

Learned AGA replied that the deceased has died within seven years of her marriage while she was residing with her husband. The death was unnatural. The demand of dowry had been alleged and proved by prosecution witnesses. Soon before her death she was tortured for non fulfillment of additional dowry.

I have considered the rival contention and perused the entire record.

The evidence on record indicates that after the marriage the deceased had gone to her matrimonial home on 15.04.2004 by way of Gauna Ceremony. The witnesses P.W.1 and P.W.2, who were the brother and father of the deceased Hemlata @ Lovely, have proved the fact that in the Gauna Ceremony the appellant and his friend had demanded Hero Honda motorcycle as additional dowry, which was refused by them as they were incapable to fulfill the aforesaid demand. The witnesses P.W.1 and P.W.2 have been cross examined in length by learned counsel for the defence, but, no fact, otherwise, came on surface.

Learned AGA also submitted that within ten days from the date of Gauna the accused appellant carried his wife to the house of his sister at Village Wahidpur and on the date of occurrence the accused / appellant had sent his sister and brother-in-law to Etah just to prevent the implication of other family members in the offence and when deceased and appellant were alone in the house, the appellant had strangulated his wife and just to mislead the fact and evidence he hanged her dead body with a knot of Tahmad. The autopsy of the deceased, brought the fact on surface, that she was murdered by strangulation.

The defence could not prove the alleged story that somebody else had murdered to wife of appellant. Medically the fact of suicide has not been proved. The appellant has not lodged any police report regarding the death of his wife. The presumption of Section 113B Evidence Act was against the appellant, as his wife, deceased Hemlata @ Lovely had died while she was residing with appellant. The death was unnatural and there is uncontroverted evidence of witnesses P.W.1 and P.W.2, regarding demand of motorcycle as additional dowry and torture. According to the provision of Section 106 of Evidence Act the burden of prove was on appellant to explain the fact and circumstances regarding the death of his wife as it has been held by Hon'ble Apex Court in the Cases of Trimukh Maroti Kirkan Vs. State of Maharashtra (2006) 10 SCC 227.

The aforesaid burden could not be discharged by the appellant. The appellant has failed to rebut of Section 113B of Evidence Act.

In view of above discussion, in the opinion of Court, conclusion drawn by learned Trial Court is just and proper. The conviction order of Trial Court is well discussed and in accordance with law. There is no ground to interfere in the conviction order as well as sentence awarded to accused appellant. The appeal being devoid of merit deserves to be dismissed.

Accordingly, the appeal is dismissed.

Record of the case reveals that during the pendency of appeal a report through C.J.M. concerned was called regarding the status of appellant Manoj. The C.J.M., Etah vide its compliance letter dated 09.05.2022, has informed with reference to report of Jail Superintendent, Fatehgarh that appellant Manoj, after completion of his sentence and after deposition of fine was released from the jail on 14.05.2013. Thereafter, a notice was issued to appellant Manoj, which was served on him personally on dated 08.05.2022, but, despite service of notice, he did not appear in the Court, therefore, the Amicus Curiae was appointed on behalf of the appellant, who argued the case for appellant.

Let the copy of judgment along with lower court record be sent back to the court concerned forthwith.

The Amicus Curiae vigilantly and deligently argued the case of appellant. I recommend that State Government shall pay Rs. 5,000/- as her fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad.

Order Date :-24.5.2022

SK Srivastava