Wednesday, 10 May 2017

Whether relatives of husband can be convicted on basis of omnibus allegation made by family members of deceased?

The learned Judge of the Trial Court after appreciating the
evidence on record has convicted Anil @ Vikki, who is the husband
of the deceased whereas all the accused persons (respondents herein)
have been acquitted. The acquittal is based on the scrutiny of
evidence available on record. The learned Judge of the Trial Court
in para 60 of the judgment has rightly held that the demand of dowry 
is not proved so far as the present respondents are concerned and the
learned Judge has also rightly held that the accused Mamta and Dr.
Harishchand, who are sister and brother-in-law of the husband
respectively are residing separately at Jhansi whereas accused Nisha
and Manju, who are the sisters-in-law of the deceased, accused Raja
@ Sharad (Jeth of deceased) and accused Shanti Devi (mother-inlaw
of the deceased) cannot be said to be involved in the demand of
dowry and it is also rightly held by the learned Judge that it is not
proved that only because of demand of Rs.5.00 lacs as dowry the
deceased has committed suicide. Apart from that, the record also
reveals that the non-applicant No.5 Manju (sister-in-law of the
deceased) is a resident of Lucknow, who got married around 20
years ago. Similarly, non-applicant No.6 Nisha (sister-in-law of the
deceased) is also married and living separately with her husband at
Bangalore. It is pertinent to note that there is a suicide note proved
as Article Q1/Ex.P/13 and also the register of the deceased written
in her own handwriting seized by the police from the room of the
deceased, which are exhibited as Ex.P/13 & Ex.P/15 and proved by
Gautam Solanki (PW-13), C.S.P. the investigating Officer, who has
seized the aforesaid suicide note vide seizure memo Ex.P/11 and as
per para 26 of the judgment, the handwriting expert's report the
same is not negative.
7. The learned Judge of the Trial Court has rightly relied upon
the decision of the Apex Court in the case of Sharad Birdhichand
Sarda vs State of Maharashtra, reported in AIR 1984 SC 1622
wherein the Hon'ble Apex Court has held that in the case of death of
a woman in her matrimonial home, it is a common feature that the
incident is exaggerated by the relatives of the deceased and it is a
common practice to implicate all the members of the family of the
husband.  
HIGH COURT OF JUDICATURE MADHYA PRADESH,
JABALPUR
DIVISION BENCH: Hon’ble Mr. Justice S.K.Gangele
 &
 Hon’ble Mr. Justice Subodh Abhyankar, JJ.
MISCELLANEOUS CRIMINAL CASE NO. 15804 OF 2016
Vinod Kumar Sen
Vs.
Smt Shanti Devi and others
Dated: 3rd day of January, 2017.
Citation: 2017 CRLJ(NOC)89 MP

The present application under Section 378(3) read with
Section 372 of the Code of Criminal Procedure has been filed
against the judgment dated 26.8.2015 passed in Sessions Trial
No.637/2013 by the VII Additional Sessions Judge, Sagar whereby
the respondents No.1 to 6 have been acquitted from the offences
punishable under Sections 304B, 498A of IPC read with Section
3(1), 4-A of the Dowry Prohibition Act, 1961.
2. Heard learned counsel Shri S.S. Bisen for the
applicant/complainant – Vinod Kumar Sen on the question of
admission.
3. In brief the case of the prosecution is that Nutan w/o Anil @
Vikki, who was married on 14.4.2012 died under suspicious
circumstances on 9.8.2013 at around 10.10 a.m. at her matrimonial 
home at Sagar. It was alleged that the deceased Nutan was being
harassed by her husband Anil @ Vikki and other family members
and soon after her marriage on 14.4.2012, within one year she died
on 9.8.2013. In the postmortem report submitted by Dr. A.K. Jain,
Medical Officer, District Hospital, Sagar (PW-9), it is mentioned
that the death was due to hanging and it is also mentioned that the
deceased was carrying pregnancy of around 16-18 weeks at the time
of her death.
4. Learned counsel for the applicant has submitted that although
the learned Judge of the Trial Court has rightly convicted the
husband of the deceased Anil @ Nikki under Section 304B and
498A of IPC and Section 3(1) and 4-A of the Dowry Prohibition
Act, but, has grossly erred in acquitting the other accused persons,
who are the close relatives of husband, namely, Smt Shanti Devi
(mother of husband Anil @ Vikki), Mamta (sister of husband Anil
@ Vikki), Dr. Harishchand (brother-in-law of husband Anil @
Vikki), Sharad Kumar (elder brother of husband Anil @ Vikki),
Manju w/o Om Prakash (sister of husband Anil @ Vikki) and Smt.
Nisha w/o of Prashant Shrivas (sister of husband Anil @ Vikki).
5. The learned counsel for the applicant has drawn our attention
to the testimony of Vinod Kumar Sen (PW-1) - father of the
deceased Nutan, who has stated that his daughter Nutan was
harassed by all the family members including Anil @ Vikki. He has
also alleged that he spoke to Dr. Harishchand (brother-in-law of
Anil) in this behalf. Dr. Harishchand also abused him and threatened
him of dire consequences. It is pertinent to mention here that this
witness not only made omnibus allegations against all the family
members but also against Dr. Harishchand, who happens to be the
husband of the sister-in-law of the deceased and is a resident of
Jhansi whereas the incident took place at Sagar. It is also stated by 
Vinod Kumar Sen (PW-1) that there was telephonic conversation in
this behalf also whereby Dr. Harishchand had abused him but
neither the telephonic conversations nor their details are on record.
Thus except bald statements, there is nothing on record to connect
the respondent Dr. Harishchand with the offence. Apart from that,
this witness has admitted in his cross-examination that he had
informed the police regarding the role of Dr. Harishchand but if the
same is not mentioned in his statement recorded under Section 161
Cr.P.C., then he cannot assign any reason for the same. Thus there is
a clear omission on the part of this witness. Similarly, Nisha Sen
(PW-2), who is the younger sister of deceased Nutan has alleged the
demand of dowry by Anil @ Vikki, the husband of the deceased and
has made omnibus allegations against the other accused persons (the
respondents herein). She has also deviated from her 161 Cr.P.C.
statement and has made improvisation in Court regarding the present
respondents. Shobhna Sen (PW-3) is also the younger sister of
deceased Nutan and she has reiterated the allegations as alleged by
the father and other sister Nisha Sen but no specific role has been
assigned by her against each of the accused persons and only
omnibus allegations have been made. Chandrakanta wife of Vinod
Kumar Sen has been examined as PW-4 as deceased Nutan was her
daughter. She has alleged demand of dowry soon after one week
after the marriage took place and has also made the same allegations
as are made by the other prosecution witnesses.
6. The learned Judge of the Trial Court after appreciating the
evidence on record has convicted Anil @ Vikki, who is the husband
of the deceased whereas all the accused persons (respondents herein)
have been acquitted. The acquittal is based on the scrutiny of
evidence available on record. The learned Judge of the Trial Court
in para 60 of the judgment has rightly held that the demand of dowry 
is not proved so far as the present respondents are concerned and the
learned Judge has also rightly held that the accused Mamta and Dr.
Harishchand, who are sister and brother-in-law of the husband
respectively are residing separately at Jhansi whereas accused Nisha
and Manju, who are the sisters-in-law of the deceased, accused Raja
@ Sharad (Jeth of deceased) and accused Shanti Devi (mother-inlaw
of the deceased) cannot be said to be involved in the demand of
dowry and it is also rightly held by the learned Judge that it is not
proved that only because of demand of Rs.5.00 lacs as dowry the
deceased has committed suicide. Apart from that, the record also
reveals that the non-applicant No.5 Manju (sister-in-law of the
deceased) is a resident of Lucknow, who got married around 20
years ago. Similarly, non-applicant No.6 Nisha (sister-in-law of the
deceased) is also married and living separately with her husband at
Bangalore. It is pertinent to note that there is a suicide note proved
as Article Q1/Ex.P/13 and also the register of the deceased written
in her own handwriting seized by the police from the room of the
deceased, which are exhibited as Ex.P/13 & Ex.P/15 and proved by
Gautam Solanki (PW-13), C.S.P. the investigating Officer, who has
seized the aforesaid suicide note vide seizure memo Ex.P/11 and as
per para 26 of the judgment, the handwriting expert's report the
same is not negative.
7. The learned Judge of the Trial Court has rightly relied upon
the decision of the Apex Court in the case of Sharad Birdhichand
Sarda vs State of Maharashtra, reported in AIR 1984 SC 1622
wherein the Hon'ble Apex Court has held that in the case of death of
a woman in her matrimonial home, it is a common feature that the
incident is exaggerated by the relatives of the deceased and it is a
common practice to implicate all the members of the family of the
husband.  
8. In the circumstances of the case, the application filed by the
complainant under Section 378(3) of the Cr.P.C. is devoid of any
merits and is hereby dismissed in limine.
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