HIGH COURT OF MADHYA PRADESH : JABALPUR
SINGLE BENCH : HON'BLE SHRI JUSTICE J.K.MAHESHWARI
CRIMINAL APPEAL NO.1505 OF 1995
Hemraj
Vs.
State of M.P.
Shri H.S.Dubey and Shri Abhinav Dubey, learned counsel
for the appellant.
Shri Yogesh Dhande, learned Panel Advocate for the
respondent/State.
JUDGMENT
(6/07/2010)
This appeal is directed against the judgment dated 1st
November, 1995 passed by Additional Sessions Judge, Gadarwara
in Sessions Trial No.32/93 convicting the appellant for the offence
under Section 498-A, IPC and directing him to undergo rigorous
imprisonment of two years with fine of Rs.500/-, in default of
payment of fine, additional imprisonment of six months.
2. As per prosecution story, deceased-Munni Bai @ Manorama
was married with Hemraj in 1988. After about one and half year of
the marriage, Shiv Prasad made a demand of Rs.10,000/- and
present appellant-Hemraj of motorcycle while mother-in-law Laxmi
Bai demanded Gold to the extent of seven tolas. Deceased Munni
Bai said to his father Kharagram regarding such demand of dowry
to which he shown his inability. While the deceased was with her
parents, Hemraj came there to take her and demanded motorcycle.
On some suggestions, he had become agreed to go with
deceased. After about one month deceased wrote a letter to her
2 Cr.A No.1505/1995
father Kharagram for satisfying the demand and to come at her in-
laws home. When a child was born, Kharagram paid Rs.1100/- in
cash and sent some clothes of Rs.700/-. At that time, cash amount
was returned with an insistence to pay Rs.10,000/- and a
motorcycle. Brother of the deceased namely Shiv Kumar went to
the house of in-laws of the deceased on 6/4/1992, at that time,
deceased was badly beaten by means of lathi. Such incidents
have been repeated from time to time. About 15 days prior to the
date of incident, Hemraj went to parental house of the deceased
and demanded motorcycle and said that otherwise they could not
see the face of the deceased and on 5/6/1992 deceased after
pouring kerosene on her body put into the fire.
3. On receiving information, Marg was registered by Police
Station, Tendukheda and during investigation while recording the
statement of Kharagram (PW-4), father of the deceased, offence
under Sections 304-B and 498-A, IPC was registered against
accused Hemraj, Shiv Prasad and Laxmi Bai.
4. Laxmi Bai was acquitted by the trial Court while Hemraj and
Shiv Prasad were convicted for the offence under Section 498-A,
IPC and acquitted them for the charge under Section 304-B, IPC.
During pendency of this appeal, Shiv Prasad died and the appeal
stood abated against him. Now this appeal is on behalf of
appellant-Hemraj, husband of the deceased, against the conviction
and sentence for the charge under Section 498-A, IPC as
aforementioned.
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5. Learned counsel appearing on behalf of the appellant has
strenuously urged that the conviction is solely relying upon the
testimony of Kharagram (PW-4) while the incidents of harassment,
cruelty and demand of dowry as narrated by him, is on the basis of
the statement of his sons namely Shiv Kumar and Rammu @
Ramkumar. The prosecution has not examined Shiv Kumar and
Rammu @ Ramkumar and has not called those witnesses in the
witness box, however, the allegation of demand of dowry, cruelty
and harassment as alleged by the prosecution could not be
established by the cogent evidence. Therefore, the finding
recorded by the trial Court convicting the appellant for the charge
under Section 498-A, IPC is liable to be set aside and the appeal
deserves to be allowed.
6. Shri Yogesh Dhande, learned Panel Lawyer for the
respondent/State, has drawn my attention to the statement of
Kharagram (PW-4) and submitted that in his statement, he himself
stated several incidents of harassment, cruelty and demand of
dowry which were conveyed to him by the deceased. It is
submitted by him that except one or two incidents which were
reported by Shiv Kumar and Rammu @ Ramkumar, brother of the
deceased, all other incidents regarding harassment, cruelty and
demand of dowry were reported directly by the deceased against
Hemraj, Shiv Prasad and Laxmi Bai to Kharagram (PW-4) which
were specifically stated by him before the Court. In cross-
examination, testimony of Kharagram (PW-4) remained vivid,
4 Cr.A No.1505/1995
however, the conviction has rightly been based by the trial Court on
the sole testimony of Kharagram (PW-4) which is not liable to be
interfered with by this Court. In view of the said submissions, it is
urged that the conviction and sentence of appellant be maintained.
7. At this stage, Shri Dubey, learned counsel for the appellant,
submits that in an alternative if this Court is of the opinion that the
conviction for the charge under Section 498-A, IPC is found
established, then the sentence as awarded by the trial Court may
be reduced to the period already undergone by the appellant by
increasing some amount of fine. The attention of this Court has
been drawn by him that the incident had taken place on 5/6/1992
and the period of 18 years has already been passed away. The
appellant was taken into custody on 15/7/1992 and released on
bail as per order dated 12/1/1993, however, remained in custody
for about four months. Thus, by increasing some amount of fine,
sentence already undergone may be treated as sufficient.
8. After having heard learned counsel appearing for the
parties, I have gone through the record and perused the allegations
as alleged by the prosecution which is based on the testimony of
Kharagram (PW-4), father of the deceased. The said testimony
found worthy of credence by the trial Court and relying upon the
same trial Court recorded the finding of conviction for the charge
under Section 498-A, IPC. Learned counsel for the
appellant/accused is not in a position to demonstrate that such
finding is perverse and the argument of learned Panel Lawyer
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found support from the record. Thus, in the opinion of this court,
the finding as recorded by the trial Court convicting the appellant
under Section 498-A, IPC is liable to be upheld.
9. In view of the aforesaid, the alternate prayer of learned
counsel for the appellant is of some substance. On perusal of the
record, the incident had taken place on 5/6/1992 and the
impugned judgment has been passed on 1st November, 1995.
The appellant has remained into custody about four months. The
appeal is pending since last more than 15 years, however, at this
stage, the opinion of this Court to send back the appellant into
custody may not be appropriate. Thus, looking to the date of
incident and the period of pendency of this appeal and the fact that
the appellant has already undergone the sentence for about four
months and deposited a fine of Rs.500/-, as directed by the trial
Court, however, by increasing the amount of fine of Rs.7,000/-
more making total such amount of fine to Rs.7,500/-, the sentence
of two years as awarded by the trial Court deserves to be reduced
and such amount of fine be deposited by the appellant within two
months from today. It is made clear that in default of depositing
such amount, the appellant shall undergo sentence as awarded by
the trial Court.
10. In view of foregoing, this appeal is allowed in part. The
conviction of appellant for the charge under Section 498-A, IPC is
hereby maintained but the sentence of two year is reduced to the
extent of sentence already undergone by the appellant subject to
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enhancing the amount of fine of Rs.7,000/- which is liable to be
deposited within a period of two months from today. In default, the
sentence as awarded by the trial Court, shall be restored, and the
concerned Chief Judicial Magistrate is at liberty to issue warrant of
arrest against the appellant to send him jail to serve out the
remaining part of the sentence.
(J.K.MAHESHWARI)
JUDGE
ts