SANDEEP MEHTA, J. - (1.) The instant two appeals have been preferred by the accused- Akheraj and Premraj for assailing the judgment dated 27.1.2011 passed by the learned Additional Sessions Judge (Fast Track) No.1, Jodhpur in Sessions Case No.88/2009 whereby, they have been convicted and sentenced as below: For offence under Section For offence under 498A I.P.C. Section 304B I.P.C. Akheraj 3 years' rigorous imprisonment & Life imprisonment. fine of Rs.2000/-, in default of payment of fine, to further undergo 2 months' additional rigorous imprisonment. Premraj 3 years' rigorous imprisonment & 7 years' rigorous fine of Rs.2000/-, in default of imprisonment. payment of fine, to further undergo 2 months' additional rigorous imprisonment.
(2.) Brief facts relevant and essential for disposal of the appeal are noted hereinbelow. Asuram Soni P.W.1 lodged a written report (Ex.P1) at the Police Station Osian on 14.5.2009 at 1 PM alleging inter-alia that his sister Chukidevi was married to Akheraj Soni, the appellant herein resident of Bapini, Osian about a year and half back. After the marriage, Akheraj and his family members used to traumatize and harass the girl on account of demand of dowry. His sister conceived and had a pregnancy of six months despite which, she was beaten on which, she suffered miscarriage. After this incident, the informant brought his sister back to his house. Two months later, Akheraj came, apologized and assured that he would not treat the deceased with cruelty in future and saying so, he took Chukidevi back to his house. On 14.5.2009, Hari Singh s/o Kishore Singh resident of Bapini called on phone and informed that his sister resident of Bapini had been killed and that Police has reached the place of incident. On receiving this information, Asuram collected his relatives and reached Bapini. He saw his sister lying dead with deep wounds all over her body and nail abrasions on her neck. He alleged that his sister had been beaten to death by Akheraj, Premraj, Banshi Lal, Premraj's wife Madudevi, wife of Banshi Lal, Puna Ram S/o Premraj. On the basis of this report, an F.I.R. No.102/2009 was registered at the Police Station Osian for the offences under Sections 498A and 304B I.P.C. Since the offence under Section 304B I.P.C. was Sessions triable, the case was committed and transferred to the court of the learned Additional Sessions Judge (Fast Track) No.1, Jodhpur for trial.
(3.) The trial Judge framed charge against the accused for the above offences. They pleaded not guilty and claimed trial. The prosecution examined as many as 11 witnesses and exhibited 25 documents in support of its case. Upon being questioned under Section 313 Cr.P.C. and when confronted with the allegations of the prosecution, the accused denied the same. They claimed that the relationship was in the nature of Aata-Sata marriage and thus, there was no question of demanding dowry in such a relationship. Umadevi daughter of Premraj, who was married in the complainant's family was of tender age and thus, was not being sent to the matrimonial home. The parties had a panchayati over this dispute. They were attempting to send Chukidevi in Nata to another family whereas, she was not desirous of going. She called Akheraj and asked him to take her away to Bhinmal. On this, Akheraj came to Jodhpur and got the affidavits executed and then took Chukidevi to Bhinmal. She was terrorized because of the activities of her maternal relatives and their attempt to send her in Nata and thus, she ended her life. Three witnesses were examined and six documents were exhibited in defence. After hearing the arguments advanced by the learned counsel for the parties and after appreciating the evidence available on record, the learned trial Judge proceeded to convict and sentence the appellants as above. Hence, this appeal. Shri Nishant Bora learned counsel representing the appellants vehemently and fervently urged that the entire prosecution case is false and fabricated. Umadevi the daughter of the appellant Premraj was married to the first informant Asuram whereas, Asuram's sister Chukidevi the deceased was married to the appellant Akheraj on 25.10.2007. As per him, since the relations were in the nature of Aata-Sata marriage, there was no question of there being any demand of dowry being made by anyone from either of the parties. He urged that the entire prosecution case regarding the accused having harassed and humiliated the deceased on account of demand of dowry is false, fabricated and cooked up. As a matter of fact, the dispute between the parties has arisen because the accused Premraj was not sending his daughter Umadevi to her husband Asuram the first informant owing to her tender age. The complainant party were pressuring hard that the girl should be sent. The dispute got out of hand and the complainant party took Chukidevi back to their house. However, Chukidevi was not happy at her father's house and thus, she called Akheraj and requested that she should be taken back to the matrimonial home. On this, Akheraj came down to Jodhpur on 11.12.2008, took Chukidevi back to Bhinmal. However, Chukidevi's maternal relatives, coming to know of these events, persistently pressurized her to return to their house and being perturbed by this undue pressure and trauma, she ended her own life. He urged that the prosecution evidence even if it accepted to be true at its highest, lacks in material particulars regarding the allegations of harassment to the girl on account of demand of dowry "soon before her death" and thus, as per him, the conviction of the accused for the offences under Sections 498A and 304B I.P.C. cannot be sustained. He further urged that even if the contrived prosecution allegations are accepted as such, then also apparently, the deceased had been taken back by the accused in the month of December 2008. She ended her life in matrimonial home by hanging herself from a noose on 14.5.2009 and that there is no allegation of the prosecution that in this significant interval of five months, the deceased ever called or complained to the complainant or any of his family members that the accused were persisting with their cruel behaviour or any demand of dowry was being made from her. He thus urged that there is total lack of evidence on the record to establish that the accused harassed or humiliated Smt. Chukidevi on account of demand of dowry soon before her death so as to justify the impugned judgment which as per Shri Bora is based on sheer conjectures and surmises and is liable to be quashed and set aside. He particularly referred to the following admissions appearing in the cross-examination of Asuram: "...Vernacular Text Omitted..." and urged that from these categoric admissions made by the witness, the defence theory that the deceased was never harassed on account of demand of dowry is proved and probablised beyond doubt and it is also established that the entire dispute between the parties was in relation to the hesitation of the accused party in sending Umadevi daughter of Premraj to the matrimonial home with the first informant. He also drew the Court's attention to the following admissions made in the statement of Idanam @ Aduram P.W.2 the father of the deceased: "...Vernacular Text Omitted..." He also drew the Court's attention to the following admissions made in the statement of Smt. Pappu Devi P.W.10 the mother of the deceased: ""...Vernacular Text Omitted..."" and urged that the panchayat which was held between the parties was in relation to the non-sending of Smt. Umadevi to the matrimonial home. He also referred to the statement of Ramesh Kumar P.W.3 brother in law of the deceased (Bahnoi), who in his cross-examination admitted that Premraj and Asuram never told him that they were dissatisfied with the dowry given in the marriage. He also referred to the statement of Hadman P.W.5 and urged that had there been any truth in the prosecution theory that the deceased was being harassed and humiliated by the accused owing to demand of dowry, then the complainant party would definitely have raised this issue in the panchayati. He also referred to the statements of Ghewarchand P.W.6, uncle of the deceased; Chukidevi; and Smt. Pappu Devi P.W.10, being the mother of the deceased Chukidevi. He further urged that the allegations levelled by the principal prosecution witnesses Asuram P.W.1, Idanam @ Aduram P.W.2, Ramesh Kumar P.W.3, and Hadman P.W.5 in their examination-in-chief that the deceased was being harassed and humiliated in the matrimonial home owing to demand of dowry are all in the form of improvements and all of them admitted in their cross-examination that the daughters of Idanam @ Aduram all contracted second marriages while their earlier marriages were subsisting. He contended that if at all, the deceased was dissatisfied and was feeling harassed in the matrimonial home, then there was no occasion for her to leave her brother in law Ramesh's home and go to the matrimonial home with the appellant Akheraj. He urged that the girl was absolutely happy and satisfied in the matrimonial home and that is why, she voluntarily called Akheraj and went with him after executing an affidavit. He thus, urged that these embellished statements cannot be relied upon so as to affirm the guilt of the accused. He thus implored the Court to accept the appeals, set aside the impugned judgment and acquit the accused of the charges. ;