JAIN, J. - (1.) THE Additional District & Sessions Judge No. 1 (Fast Track) Kota, vide impugned judgment and order dated 30th January, 2002, in Sessions Case No. 84/2001, convicted and sentenced the accused-appellant under Section 304-B, IPC, to undergo 7 years rigorous imprisonment.
(2.) BRIEFLY stated the facts of the case are that initially PW-1 Amar Dhwaj Singh, father of deceased Usha, lodged a written- report on 7. 8. 2000 at 9. 50 AM at Police Station Udyog Nagar, Kota, wherein it was written that about one-and-half year ago he got his daughter Usha married with Raj Bahadur Singh. His daughter died in a suspicious circumstance at her matrimonial house. She is hanged on fan in her room. The S. H. O. registered the report under Section 176, Cr. P. C. , and forwarded it to the Additional District Magistrate for enquiry. The postmortem of deceased Usha was conducted on the same day wherein it was opined that her death has been due to asphyxia as a result of antemortem hanging. Subsequently on 8. 8. 2000 at about 4. 15 PM another written report (Exhibit P-4) was lodged by PW-1 Amar Dhwaj Singh at Police Station Udyog Nagar, Kota, wherein it was mentioned that marriage of his daughter Usha Singh took place on 4. 12. 1998 with Raj Bahadur. After some time of marriage, her in-laws started harassing her because of less dowry. The allegations were alleged against motherin- law Kamla Devi, brother-in-law (Dewar) Rai Bahadur and sister-in-law (Nanad) Rakhi Devi. It was alleged that a demand of Rs. 50,000/- (Rupees fifty thousand) was made but he could gave only Rs. 10,000/- in dowry and remaining amount Rs. 40,000/- has not been given. As and when he went to meet Usha Singh, her mother-in-law Kamla Devi told him as to when the remaining amount Rs. 40,000/- will be paid. It was also written that on 5. 8. 2000 he had gone to bring Usha Singh for Rakshabandhan festival but she was not sent and on 7. 8. 2000 at about 8. 15 AM he heard about death of his daughter. On the basis of this information, Mahila Police Station, Kota City, registered FIR No. 143/2000 under Sections 304-B and 406, IPC. After completion of investigation, the police filed a charge-sheet against the accused-appellant as well as co-accused Rai Bahadur Singh. The trial court framed charge against both the accused under Section 304-B, IPC. The trial court, after considering the evidence of both the parties on the record, acquitted co-accused Rai Bahadur, but convicted and sentenced the accused-appellant, as mentioned above. The learned counsel Shri S. S. Hora, appearing on behalf of the accused-appellant, contended that initially report Exhibit P- 1 was lodged on 7. 8. 2000 at 9. 50 AM, wherein nothing was mentioned regarding demand of dowry or assault with or harassment of deceased by her in-laws. Thereafter FIR No. 216/2000 was registered at the instance of Jaswant Singh against Bhanwar Singh and two brothers of deceased Usha at Police Station Udyog Nagar, Kota City, at 7. 15 PM, under Sections 341, 323, 435, IPC (Exhibit D-8) and only in counter thereto the another written-report (Exhibit P-4) was lodged by PW-1 Amar Dhwaj Singh on 8. 8. 2000 at 4. 15 PM mentioning therein the allegations regarding demand of dowry and harassment of the deceased by her in-laws otherwise there was no such harassment of the deceased for or in connection with demand of dowry.
(3.) THE learned counsel for the accused-appellant further contended that in Exhibit P-4 an allegation was also made against deceased Usha's sister-in-law Rakhi Devi, but the police, during investigation of the case, found the said allegation false and did not file challan against her. THErefore, the allegations of complainant were found to be false partly by the police itself and the trial court, after appreciation of prosecution evidence, on the same set of evidence, acquitted coaccused Rai Bahadur, and convicted the present appellant, which is per-se illegal and the appellant is liable to be acquitted. He further contended that there is no independent witness in the present case to prove the charge against the appellant. All the witnesses, examined on behalf of the prosecution, were only interested witnesses, and their testimony ought to have been discarded by the trial court. He, therefore, contended that the impugned judgment passed by the trial court be set-aside and the benefit of doubt be given to the accused and the appellant be acquitted. The learned counsel for the accused-appellant has also referred the decision of the Hon'ble Supreme Court in Sunil Bajaj vs. State of M. P. , 2002 Cr. L. R. (SC) 225, and contended that in absence of any specific evidence that Usha was subjected to cruelty or harassment by her mother-in-law soon before her death for or in connection with the demand of dowry, the conviction of the accused Kamla under Section 304-B, IPC, cannot be sustained. He referred Para No. 11 of the judgment, which reads as under:- " 11. It is unfortunate that trial Court did not properly and objectively consider the evidence to reach a conclusion that the appellant was guilty of the offence. It may be also noticed here that the appellant was acquitted for the charge under Section 306 IPC. The High Court, as already stated above, did not re-appreciate the evidence as first Court of appeal on criminal side and has disposed the appeal in a summary way, confirming the order of conviction and sentence passed by the trial Court. In the light of what is stated above, in our view, both the Courts committed serious and manifest error in concluding that the appellant was guilty of the offence when the crucial and necessary ingredient that the deceased Suman was subjected to cruelty or harassment by him soon before her death for or in connection with demand of dowry was not established and also looking to the evidence and circumstances cumulatively. Under these circumstances, the impugned judgment is unsustainable as it suffers from infirmity and illegality as indicated above. " ;