Hon'ble Mrs. Vijay Lakshmi,J.
(By Hon'ble Mrs. Vijay Lakshmi, J.) Aggrieved by the judgment of acquittal dated 15.10.2014 passed by Addl. Sessions Judge/Special Judge, E.C. Act, Ghaziabad in S.T.No.337 of 2011, State of U.P. Vs. Rakesh Pandit & Others in case crime No.1940 of 2010 under sections 498-A/304-B, IPC and ¾ D.P.Act, P.S. Sahibabad, District Ghaziabad, the complainant has preferred this appeal under section 372 Cr.P.C.
We have heard learned counsel for the appellant on the point of admission and perused the record.
The prosecution case in brief is that on 15.10.2010 the informant Parshuram Pandit filed a written report before I.G.(Police), Lucknow mentioning therein that the marriage of his sister Sushila Kumari was solemnized with the accused-respondent Rakesh Pandit on 4.7.2010 according to Hindu rites. Soon after the marriage the husband Rakesh Pandit his parents and sister started demanding a motor-cycle and coloured T.V. as additional dowry. They started to harass and torture his sister on account of such demand. His sister had informed him about her harassment by her husband and in-laws on phone. Suddenly on 2.10.2010 at 4 p.m. the informant received a phone call about the death of his sister. He rushed to Ghaziabad in the morning of 3.10.2010 and got to know that the dead body of his sister was hurriedly cremated only after two hours of her death. When the informant asked about the cause of death of his sister, her husband and in-laws could not give any satisfactory answer. The informant tried to lodge the FIR but the S.O. of Police Station Sahibabad did not register the case on the ground that Panchayat Elections were going on and therefore he was unable to lodge any FIR till 14.10.12010. The complainant, therefore, had to file the application before I.G.(Police).
On the basis of aforesaid written report a criminal case under section 498-A, 304-B, IPC & ¾ D.P.Act was registered at crime No.1940 of 2010 against accused Rakesh Pandit and his parents Smt. Kanti and Jagannath( father-in-law and mother-in-law) and also against his sister Km. Sunita (sister-in-law). The matter was investigated and after conclusion of the investigation charge sheet was submitted against all the aforesaid accused persons. The case was committed to the court of sessions. The sister-in-law, accused Sunita died during the trial and the case against her stood abated.
The learned trial court after scanning the evidence led by the prosecution found the husband Rakesh Pandit guilty under sections 304-B, 498-A & 201 IPC and punished him with life imprisonment for his conviction under section 304-B, IPC, 2 years rigorous imprisonment and fine of Rs.10,000/- was imposed on him for his conviction under section 498-A, IPC and 2 years R.I. and fine of Rs.10,000/- was awarded to the convicted husband, under section 201 of IPC.
The learned trial court also convicted accused Rakesh Pandit with 2 years R.I. and fine of Rs.5000/- under section 4 of D.P.Act. However, learned trial court gave benefit of doubt to the father-in-law and mother-in-law of the deceased bride on the ground that they were not living with the son and daughter-in-law when the occurrence took place.
Learned counsel for the appellant has assailed the correctness of the aforesaid judgment acquitting the parents of accused Rakesh Pandit mainly on the ground that despite the having failed to lead cogent evidence regarding the separate living of the parents, the trial court by wrongly relying on the defence evidence, has passed the impugned judgment on presumption, surmises and conjectures.
The judgment impugned shows that the learned trial court had found that the house where the deceased and her husband were living consisted of only one room, a kitchen, a bathroom and a courtyard. The total area of the house was only 25 yards. Moreover, the evidence led by the parties revealed that only after one month of their marriage, accused Rakesh Pandit came to live at Ghaziabad with his wife deceased Sushila. No witness had stated that the parents of Rakesh Pandit also came to live with them. Learned trial court also observed that it can not be assumed that the parents were living in the same single roomed house, in which the newly wedded couple was living.
The defence in order to discharge its burden under section 113-B of Evidence Act had produced a neighbour Ram Gopal as D.W.2 who had stated that Rakesh Pandit was living all alone with his wife. His parents and sister were living at Village Gopal Ganj, Bihar, who being an independent witness was relied on by the trial court. Learned trial court also found that there was no evidence regarding harassment of deceased bride ?soon before of her death? by the parents of accused husband, which is an essential ingredient of the offence of dowry death.
After having heard learned counsel for the appellant and learned AGA and having gone through the judgment impugned, clearly it appears that there is only a general allegation against the in-laws that they were demanding additional dowry and were harassing the deceased in connection with such demand. No overt act or specific role has been assigned to father-in-law or the mother-in-law.
In the case of Geeta Mehrotra Vs. State of U.P. AIR 2013, S.C. Page 181 which was also a case relating to dowry harassment, the Apex Court has held that if the allegation regarding active involvement of accused persons is absent in FIR, mere casual reference to their names in FIR would not be sufficient to take cognizance.
Keeping in view of the entire facts and circumstances of the case the learned trial court acquitted father-in-law and mother-in-law and convicted only the husband Rakesh Pandit.
We find no illegality or infirmity in the impugned judgment.
So far as the reliability of defence witness is concerned even assuming for the sake of argument that his evidence was not reliable, it does not make any difference because the prosecution in this case has not led any cogent evidence regarding active involvement of the in-laws or even their presence in the single roomed house where the newly wedded deceased bride was living with her husband at the time of occurrence.
In the case of Prem Kanwar Vs. State of Rajasthan 2009 (3) SCC page 726 it has been held by Hon'ble the Supreme Court that the initial burden is always on the prosecution to prove its case regarding the existence of essential ingredients of Section 304-B IPC against the accused persons before the burden may be shifted on the shoulder of accused under section 113-B of Evidence Act.
In the light of above discussions, we are of the firm view that the instant appeal lacks merits. It is liable to be dismissed at the admission stage itself and it is accordingly dismissed.
Order Date :- 28.11.2014 IA