Akhilesh Bhatnagar vs State of Uttarakhand

Alok Singh, J.—Present appeal is directed against the judgment and order dated 30.6.2009 passed by Additional Sessions Judge/F.T.C. IInd, Dehradun in Sessions Trial No. 74 of 2000 whereby learned Trial Court held the appellant guilty for the offence punishable u/s 498A, IPC as well as u/s 4 of Dowry Prohibition Act; appellant was sentenced to undergo rigorous imprisonment for a period of 1 1/2 years and to pay fine of Rs. 1,000, in default of making payment of fine to undergo additional imprisonment for 3 months for an offence punishable u/s 498A; sentenced him to undergo rigorous imprisonment for a period of one year and to pay fine of Rs. 500 and in default of making payment of fine to undergo additional imprisonment of 1 month for the offence u/s 4, Dowry Prohibition Act with the stipulation that both the sentences shall run concurrently. Brief facts of the present case inter alia are that P.W.1 Madan Mohan Verma lodged an FIR with Police Station, Kotwali, Dehradun on 5.9.1998 stating therein that his sister Deepa Bhatnagar (P.W.4) was married to the appellant as per Hindu rites and ritual on 22.4.1996; soon after the marriage, appellant, Smt. Radha Bhatnagar (mother of the appellant), Km. Upasana Bhatnagar (sister of the appellant) and Vinod Narayan Bhatnagar, brother-in-law of the appellant (sister''s husband) started harassing, Deepa Bhatnagar. Deepa Bhatnagar informed P.W.1 about harassment meted out by her; P.W.1 came to Dehradun and tried to settle the matter amicably and handed over Rs. 5,000 to the mother of the appellant in the year 1997, however, appellant and his family failed to mend their ways; appellant and his family assaulted Deepa Bhatnagar on 13.5.1998; incident of 13.5.1998 was reported by P.W.5 Sunil Mohan to the police; thereafter appellant and his family apologized, however, continued to harass Deepa Bhatnagar; on 15.8.1998 appellant gave serious beating to Deepa Bhatnagar and demanded Rs. 15,000 and a motorcycle; Deepa Bhatnagar went to the house of Surendra Kumar Garg and narrated entire story to the wife of Surendra Kumar Garg; again appellant gave severe beating to Deepa Bhatnagar on 2/3.9.1998 and Deepa Bhatnagar was made to consume poison.

Investigation was handed over to Sub-Inspector Jeeto Kamboj. Investigating Officer having investigated the matter filed charge-sheet against the appellant, his mother Smt. Radha Bhatnagar and his sister Km. Upasana Bhatnagar. After the committal of the trial, learned Sessions Court framed charges against all the accused for the offences punishable under Sections 498A, 328, IPC as well as under Sections 3 /4, Dowry Prohibition Act. Appellant, his mother and sister denied the charges and claimed trial. During the trial, mother and sister of the appellant, namely, Smt. Radha Bhatnagar and Km. Upasana Bhatnagar died, therefore, trial stood abated against both of them.

From the side of the prosecution Madan Mohan Verma (P.W.1), Dr. Ajay Ghai (P.W.2), Constable Heera Singh (P.W.3), Smt Deepa Bhatnagar (P.W.4), Sunil Mohan (P.W.5), Sub-Inspector Jeeto Kamboj (P.W.6), Dr. Reenu Negi (P.W.7) and Dr. Gurpal Singh (P.W.8) were examined and thereafter statement of the appellant was also recorded u/s 313 of the Code of Criminal Procedure.

I have heard Mr. Shakti Singh, Advocate holding brief of Mr. Anil Dabral, Advocates for the appellant and Ms. Mamta Bisht, learned AGA along with Mr. Prabhakar Joshi, learned Brief Holder for the State and have carefully perused the record.

P.W.4 Deepa Bhatnagar, during her cross-examination stated that she did not know before her marriage that Akhilesh Bhatnagar (appellant) was married and was a divorcee.

P.W.5 Sunil Mohan, brother of P.W.4 Deepa Bhatnagar, during his cross-examination, stated that we did not know that it was the second marriage of Akhilesh Bhatnagar (appellant) with his sister Deepa Bhatnagar; had this fact been brought to his knowledge earlier, he would have not agreed to marry Deepa Bhatnagar with the appellant; they came to know about second marriage of Akhilesh Bhatnagar (appellant) after about 1 1/2 months of the marriage of Deepa Bhatnagar, thereafter misunderstanding cropped between Deepa Bhatnagar and Akhilesh Bhatnagar (appellant) and with his mother and sister; the moment we came to know that this was the second marriage of Akhilesh Bhatnagar (appellant) and when Deepa Bhatnagar was made to consume poison, then only, we have decided to file report against the appellant and his family members for demand of dowry.

I have carefully perused the statement of P.W.1 and P.W.5, both the brothers of Deepa Bhatnagar as well as statement of Deepa Bhatnagar (P.W.4). It seems that floating allegations are made about demand of dowry. For the first time demand of motorcycle and Rs. 15,000 was made by the appellant on 15.8.1998. As per the statements of P.W.1, P.W.4 and P.W.5 and as per the version of FIR, appellant gave severe beating to Deepa Bhatnagar (P.W.4) and also raised demand of Rs. 15,000 and motorcycle on 15.8.1998 and soon thereafter P.W.4 went to the house of Surendra Kumar Garg and narrated entire incident to the wife of Surendra Kumar Garg. In the present case wife of Surendra Kumar Garg was not produced to prove that on 15.8.1998 Deepa Bhatnagar was beaten and demand of dowry was raised from her and she had narrated the entire incident to the wife of Surendra Kumar Garg.

P.W.1 Madan Mohan Verma another brother of Deepa Bhatnagar states that one report was also lodged against appellant on 16.8.1998, however, in that report nothing was mentioned about the demand of Rs. 15,000 and motorcycle.

P.W.7 Dr. Reenu Negi, in her cross-examination stated that medical report of P.W.4 does not bear the signature of P.W.4. I find force in the submission made by the learned Counsel for the appellant that in the absence of signature on the medical report, it cannot be said that P.W.4 was examined by the doctor or some injuries were noticed on her body.

Otherwise also, it seems to be improbable that a person got married in the month of April, 1996 and would raise demand of Rs. 15,000 and a motorcycle after two years on 15.8.1998. I find some force in the arguments of learned Counsel for the appellant that after coming to know that this was the second marriage of the appellant, story of demand of dowry was cooked up to implicate the appellant and his family members.

Learned Counsel for the appellant submits that Deepa Bhatnagar (P.W.4) also filed one petition for seeking dissolution of marriage in the Family Court, Bareilly, which had also been decreed.

Learned Trial Court in its judgment observed that since the fact of previous marriage and divorce was not disclosed to Deepa Bhatnagar and her family members, therefore, concealment of fact of previous marriage and divorce amounts to cruelty justifying the conviction of the appellant u/s 498A, IPC. Above observation of the Trial Court does not sustain in the eyes of law.

P.W.4 Deepa Bhatnagar in her statement submits that she was made to consume poison and thereafter, she became unconscious and on the next day she could regain her consciousness, while as per Dr. Ajay Ghai (P.W.2) when Deepa Bhatnagar was brought to the hospital, she was fully conscious. Nothing was produced on the record to prove that Deepa Bhatnagar was made to consume poison, therefore, Trial Court has rightly acquitted the accused/appellant for the offence punishable u/s 328, IPC. In view of the discussion made herein before, in my considered opinion, prosecution could not prove the guilt of the accused beyond reasonable doubt. Consequently, appeal is allowed. Impugned judgment and order is hereby set aside. Appellant is on bail. He needs not to surrender. Personal bond and sureties bonds furnished by the appellant are hereby discharged.

Let a copy of this judgment along with the lower Court record be sent back to the lower Court.