Madan Mohan Dubey S/O. Baboolal Dubey. Vs. Halkibai, W/O Baboolal Sharma, and ors. - Court Judgment

Excerpt:
order 9 rule 13, order 37 rule 4 & section 115: [b.n. agrawal & g.s. singhvi, jj] ex parte decree in summary suit - set aside by trial court - interference by high court in revision - high court had not even recorded any finding on this issue - order of trial court setting aside ex parte decree not suffering from any error of jurisdiction or material irregularity in exercise of jurisdiction - held, high court was not justified in interfering with the same. order of trial court restored for disposal of the summary suit afresh in accordance with law. 1. this revision petition under section 397 read with 401 of the code of criminal procedure has been preferred by the complainant being aggrieved by the judgment dated 30.11.94, passed by first additional sessions judge, bhopal in st no. 378/92 by which the non-applicant nos. 1 and 2 have been acquitted of the charge, punishable under section 302 read with 34 of ipc, in alternative under section 304-b of ipc.2. the facts of the case, in short, are that marriage of abha sharma (deceased), daughter of the applicant was solemnized on 15.05.1991 with arvind sharma (convicted accused). it is undisputed that the non-applicant no. 1, halki bai is mother and the non-applicant no. 2 raghunandan is elder brother of arvind sharma. it is alleged that after marriage, accused arvind sharma along with.....

Judgment:
1. This revision petition under Section 397 read with 401 of the Code of Criminal Procedure has been preferred by the complainant being aggrieved by the judgment dated 30.11.94, passed by First Additional Sessions Judge, Bhopal in ST No. 378/92 by which the non-applicant nos. 1 and 2 have been acquitted of the charge, punishable under Section 302 read with 34 of IPC, in alternative under Section 304-B of IPC.

2. The facts of the case, in short, are that marriage of Abha Sharma (deceased), daughter of the applicant was solemnized on 15.05.1991 with Arvind Sharma (convicted accused). It is undisputed that the non-applicant no. 1, Halki bai is mother and the non-applicant No. 2 Raghunandan is elder brother of Arvind Sharma. It is alleged that after marriage, accused Arvind Sharma along with non-applicant nos. 1 and 2, ill treated Abha Sharma(deceased) regarding dowry and also demanded motor cycle. Since, the applicant was unable to fulfill their demand of dowry therefore, on 11.02.1992 accused Arvind, at his residence at Bhopal after pouring the kerosene oil on Abha Sharma set her ablaze.

3. It is also alleged that Abha Sharma(deceased) was admitted in Hamidya Hospital, Bhopal. On receiving information of incident, applicant rushed to the hospital. There Abha Sharma (deceased) narrated the story of incident to the applicant. She also disclosed that the accused threatened her and got her statement recorded in his favour. According to prosecution story dying declaration of Abha Sharma was duly recorded by the Naib Tahsildar, Nisar Ahmad Rizvi (PW-10). On 15.02.1992 Abha Sharma succumbed to her burn injuries. Dead body was sent for post-mortem. Dr. B.P.Dubey(P.W.-5) performed the autopsy on the body of deceased and found one to third degree burn and opined that, death was due to cardio respiratory failure as a result of burn and its complication. He prepared post-mortem report (Ex. P-9). It is, further, alleged that the applicant tried to report at police station but his report was not recorded then he lodged a written report on 24.02.1992 to the Superintendent of Police, Bhopal and sent copies to Higher Authorities. Ultimately, police registered the offence under Section 498-A,304-B of IPC against Arvind and non-applicant nos. 1 and 2.

4. After investigation Arvind and non-applicant nos. 1 and 2 were charge-sheeted. Learned First Additional Sessions Judge, framed the charges against them. They abjured the guilt and pleaded false implication. On critical appraisal of evidence on record, learned trial Court acquitted the non- applicant nos. 1 and 2 and convicted Arvind Sharma under Section 304-B of IPC and sentenced to undergo 8 years rigorous imprisonment.

5. Learned counsel for the applicant submitted that the trial Court has committed illegality in not appreciating the evidence in their proper prospective therefore, judgment and finding of the trial Court in respect of non-applicant nos. 1 and 2 is liable to be set aside.

6. On the other hand, learned counsel for the non- applicant nos.1 and 2 supported the judgment and finding of trial Court.

7. We have perused the impugned judgment, evidence and other materials on record especially dying declaration (Ex. P-12) recorded by the Naib Tahsildar, Nisar Ahmad Rizvi (PW-10) and statement of Dr. S.K. Nigam (PW-6) along with the statements of applicant Madan Mohan Dubey (PW-2), father of the deceased, Rajkumar(PW-3), brother of the deceased and Chandrabhan Dubey(PW-11), uncle of the deceased.

8. The applicant, Madan Mohan Dubey and his near relatives Rajkumar (PW-3) and Chandrabhan Dubey(PW-11) have stated regarding oral dying declaration in relation to demand of dowry and other incident. On the contrary, dying declaration (Ex. P-12) recorded by independent witness, Naib Tahsildar, Nisar Ahmad Rizvi (PW-10) shows that Abha Sharma(deceased) narrated him that the incident took place when she was preparing the food. This fact finds support from the version of Dr. S.K. Nigam(PW-6) who examined Abha Sharma and prepared MLC report. He stated that Abha Sharma disclosed him the fact that she was burnt during the preparation of the food. This witness was not declared hostile by the prosecution therefore, version of this witness is binding on the prosecution.

9. Applicant and his relatives Raj Kumar and Chandrabhan have stated that Abha Sharma was ill treated and harassed in relation to demand of motor cycle by the non- applicant nos. 1 and 2. This fact was disclosed by Abha Shama when she came to her matrimonial house. But this very fact did not find place in dying declaration (Ex.P-12), recorded by independent witness, Naib Tahsildar, Nisar Ahmad Rizvi (PW-10). Therefore it might be an after thought.

10. Considering the fact that incident took place at Bhopal whereas the non-applicant nos. 1 and 2 resided in village Heerapur, trial Court was of the view, that allegation of torturing to deceased, is not believeable.

11. We are also of the considered view that the allegation regarding harassment and demand of motor cycle did not find place in the dying declaration of Abha Sharma, hence there is no illegality or irregularity in the finding of acquittal recorded by trial Court in regard to non-applicant nos. 1 and 2.

12. It is well settled position of law that where two views are possible from the evidence on record, view found in favour of accused is to be accepted.

13. On considering the evidence discussed hereinabove, we are of the opinion that there is no illegality, irregularity and perversity in the finding recorded by the trial Court. Therefore, revision of applicant deserves to be dismissed and is hereby dismissed.