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seemabhatnagar · 1 year

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Death within 7 years of marriage is not sufficient to convict the accused

#CriminalAppeal before #SupremeCourt by appellant/ alleged accused husband in #DowryDeath Case

Charan Singh v. The State of Uttarakhand

Background:

The appellant / husband of the deceased filed the present appeal challenging his #conviction and sentence under sections 304B, 498A and 201 of Indian Penal Code, (IPC) 1860. The #TrialCourt had #sentenced the appellant to undergo #RigorousImprisonment (RI) for #10years under Section 304B, 2 years under #Section498A and 2 years under Section 201 IPC.

However, the #HighCourt of #UttarakhandatNainital had #reduced the #sentence of the appellant #underSection304B #IPC from ten years to seven years.

Facts:

Complainant story is deceased daughter Chhilo died within two years of her marriage. She had informed her parents several times demand of motor bike and later demand of land was also made by her in laws. As the demand was not fulfilled, she was murdered by her-in -laws. Her death was informed to the complainant father by a villager Jagir Singh of Bhogpur Dam where Chhilo was living.

After investigation Charge sheet was filed against husband Charan Singh(Accused-1), Gurmeet Singh-brother-in-law(Accused-2) & Santo Kaur-Mother-in-law(Accused-3).

Pertinent points raised by the Appellant’s Counsel:

· The conviction and sentence of the appellant cannot be legally sustained either under Sections 304B or 498A IPC.

· Pre-requisite for S.304B- Soon before the death, the deceased had been subjected to cruelty or harassment for or in connection with any demand of dowry.

· Presumption regarding Dowry Death – It can be raised u/s113 B of Indian Evidence Act provided it is shown that soon before death, such woman had been subjected to cruelty or harassment for, or in connection with the demand of dowry.

· Prosecution Evidence- None of the witnesses have stated that there was any harassment or cruelty to the deceased or demand of dowry immediately before her death.

· The maternal grandmother and two maternal uncles who were living at distance of about one farlang from the village of the deceased were present at the time of the of cremation did not raise any issue either by lodging a complaint to the police or otherwise.

· Material Witness, Jagir Singh, who was named by the complainant in the FIR, has not been produced by the prosecution in evidence.

· Once the ingredients of Sections 304B, 498A IPC and Section 113B of Indian Evidence Act are not made out, no presumption of dowry death can be raised.

· When allegations against the appellant, his brother and mother were same why State has not preferred appeal against acquittal of his brother and mother.

· Besides death of the wife of the appellant was not unnatural as she was suffering from fits. This was admitted by the maternal grandmother in her cross examination.

Submission of the State:

· A young woman was killed by her in-laws in lust for dowry. The marriage was merely two years old and the death was unnatural.

· The maternal grandmother and the two uncles who were present at the time of cremation had seen injury marks on the body of the deceased and also the broken tooth. They could not lodge the complaint as they were threatened.

· The death occurred in the matrimonial home, hence onus lies heavily on the appellant to dislodge the presumption.

Point to be decided:

The case in hand falls in the category where the presumption can be raised against the appellant relieving the prosecution from proving its case and putting the onus on the accused/appellant.

Observation of the Supreme Court:

· In the evidence led by the prosecution, none of the witnesses stated about the cruelty or harassment to the deceased by the appellant or any of his family members on account of demand of dowry soon before the death or otherwise. Rather harassment has not been narrated by anyone. It is only certain oral averments regarding demand of motorcycle and land which is also much prior to the incident.

· Evidence led by the prosecution does not fulfil the pre-requisites to invoke presumption under Section 304B IPC or Section 113B of the Indian Evidence Act.

· The ingredients of Section 498A IPC are not made out as there is no evidence of cruelty and harassment to the deceased soon before her death.

· Defence Witness (DW-1) Gurmej Sing/head of the village had stated that the information about the death was given to the parents of the deceased and other family members. He stated that belongings of the deceased were handed over to her maternal grandmother and uncle after cremation.

· His statement is in line with the admission made by Biro Bai (PW-3), maternal grandmother, Balbir Singh (PW-2)(maternal Uncle.

· On a collective appreciation of the evidence led by the prosecution, we are of the considered view that the prerequisites to raise presumption under Section 304B IPC and Section 113B of the Indian Evidence Act having not been fulfilled, the conviction of the appellant cannot be justified.

· Mere death of the deceased being unnatural in the matrimonial home within seven years of marriage will not be sufficient to convict the accused under Section 304B and 498A IPC

Decision of the Apex Court: The Division Bench of the #ApexCourt comprising Hon'ble Mr. Justice Abhay S Oka J & Hon'ble Mr. Justice Rajesh Bindal J vide their order dt.20.04.2023 held that conviction and sentence of the appellant under Section 304B, 498A and 201 IPC cannot be legally sustained & allowed the criminal appeal. The impugned judgment of the High Court is set aside.

Seema Bhatnagar

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vinodkaushikadvocate · 10 days

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lawyersfact · 4 months

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lockamylawyers · 4 months

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thehaggardlawfirm · 6 years

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seemabhatnagar · 1 year

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Transfer Petition will be considered on its merit

#TransferPetition Delma Lubna Coelho v. Edmond Clint Fernandes

Legal point dealt:

The Respondent prayed for grant of #divorce under #Article142 of the #ConstitutionofIndia. Respondent submitted that the present case is of irretrievable breakdown of marriage as despite repeated mediations at #SupremeCourtMediationCentre, parties could not reconcile. In support of his contention Respondent cited the cases namely R. Srinivas Kumar v. R Shametha & Munish Kakkar v. Nidhi Kakkar. In both these cases the Hon'ble Court has #granted #divorce under Article 142 of the Constitution.

Observation of the Supreme Court on Artice 142 of the Constitution:

1. The dispute between Petitioner and the Respondent is #notthefitcase for use of Article 142 of the Constitution of India. The parties had lived together for 40 days and it takes time to settle down in marriage.

2. The cases where Article 142 of the Constitution was used were cases where parties had #led their #evidence, proceedings at court below were completed and there was #sufficientmaterial on the basis of which #marriage was #dissolved under #Article142.

3. As #irretrievablebreakdown of marriage is not the ground for dissolution of marriage under #HinduMarriageAct1955.

Decision:

The #DivisionBench of the #Apex Court comprising Hon'ble Mr. Justice Rajesh Bindal J & Hon'ble Mr. Justice Aravind Kumar J vide their order dt.18.04.2023 #dismissed the #TransferPetition moved by the Wife/Petitioner.

Considering the status of the parties no case is made out for transfer of petition. The wife is a permanent resident of Canada & she has been attending mediation process throughout online. She must be travelling abroad regularly. She can travel to Mangaluru as well for attending the hearing.

Observation of the Apex Court on Transfer Petition:

Number of transfer petitions are filed in Matrimonial cases, majorly by wives seeking transfer of #matrimonialproceedings initiated by the husband. The Bench of the Apex Court observed that normally this Court has been accepting the prayer made while showing #leniencytowardstheladies. But in the case of Anindita Das v. Srijit Das it was observed that #leniency given by the Court is #misused by the women. Hence, #each and every #case has to be considered on its own #merits.

Facts:

1.The petitioner is a permanent resident of Canada. She had shifted there in the year 2014 & was working there on a well-paid job, however came to India for the matrimonial alliance. She is presently based in Mumbai and is stated to be working with ICICI Bank. There is no child born.

2.Respondent is doctor by profession and is living with his parents at Mangaluru, Karnataka. Divorce Petition was filed by the Husband/Respondent at Family Court Mangaluru.

3.The wife filed a petition for restitution of conjugal rights at Mumbai.

4. Petitioner stated that she is living with her old aged parents & doesn't know Kannada. Recently she has joined her job and frequent leave would affect her job.

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rayadvertisingllc · 7 months

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