Law Web: Whether relatives of husband can be convicted on basis of omnibus allegation made by family members of deceased?

The learned Judge of the Trial Court after appreciating the

evidence on record has convicted Anil @ Vikki, who is the husband

of the deceased whereas all the accused persons (respondents herein)

have been acquitted. The acquittal is based on the scrutiny of

evidence available on record. The learned Judge of the Trial Court

in para 60 of the judgment has rightly held that the demand of dowry

is not proved so far as the present respondents are concerned and the

learned Judge has also rightly held that the accused Mamta and Dr.

Harishchand, who are sister and brother-in-law of the husband

respectively are residing separately at Jhansi whereas accused Nisha

and Manju, who are the sisters-in-law of the deceased, accused Raja

@ Sharad (Jeth of deceased) and accused Shanti Devi (mother-inlaw

of the deceased) cannot be said to be involved in the demand of

dowry and it is also rightly held by the learned Judge that it is not

proved that only because of demand of Rs.5.00 lacs as dowry the

deceased has committed suicide. Apart from that, the record also

reveals that the non-applicant No.5 Manju (sister-in-law of the

deceased) is a resident of Lucknow, who got married around 20

years ago. Similarly, non-applicant No.6 Nisha (sister-in-law of the

deceased) is also married and living separately with her husband at

Bangalore. It is pertinent to note that there is a suicide note proved

as Article Q1/Ex.P/13 and also the register of the deceased written

in her own handwriting seized by the police from the room of the

deceased, which are exhibited as Ex.P/13 & Ex.P/15 and proved by

Gautam Solanki (PW-13), C.S.P. the investigating Officer, who has

seized the aforesaid suicide note vide seizure memo Ex.P/11 and as

per para 26 of the judgment, the handwriting expert's report the

same is not negative.

7. The learned Judge of the Trial Court has rightly relied upon

the decision of the Apex Court in the case of Sharad Birdhichand

Sarda vs State of Maharashtra, reported in AIR 1984 SC 1622

wherein the Hon'ble Apex Court has held that in the case of death of

a woman in her matrimonial home, it is a common feature that the

incident is exaggerated by the relatives of the deceased and it is a

common practice to implicate all the members of the family of the

husband.

HIGH COURT OF JUDICATURE MADHYA PRADESH,

JABALPUR

DIVISION BENCH: Mr. Justice S.K.Gangele

& Mr. Justice Subodh Abhyankar, JJ.

MISC CRIMINAL CASE NO. 15804 OF 2016

Vinod Kumar Sen Vs. Smt Shanti Devi

Dated: 3rd day of January, 2017.

Citation: 2017 CRLJ(NOC)89 MP

The present application under Section 378(3) read with

Section 372 of the Code of Criminal Procedure has been filed

against the judgment dated 26.8.2015 passed in Sessions Trial

No.637/2013 by the VII Additional Sessions Judge, Sagar whereby

the respondents No.1 to 6 have been acquitted from the offences

punishable under Sections 304B, 498A of IPC read with Section

3(1), 4-A of the Dowry Prohibition Act, 1961.

2. Heard learned counsel Shri S.S. Bisen for the

applicant/complainant – Vinod Kumar Sen on the question of

admission.

3. In brief the case of the prosecution is that Nutan w/o Anil @

Vikki, who was married on 14.4.2012 died under suspicious

circumstances on 9.8.2013 at around 10.10 a.m. at her matrimonial

home at Sagar. It was alleged that the deceased Nutan was being

harassed by her husband Anil @ Vikki and other family members

and soon after her marriage on 14.4.2012, within one year she died

on 9.8.2013. In the postmortem report submitted by Dr. A.K. Jain,

Medical Officer, District Hospital, Sagar (PW-9), it is mentioned

that the death was due to hanging and it is also mentioned that the

deceased was carrying pregnancy of around 16-18 weeks at the time

of her death.

4. Learned counsel for the applicant has submitted that although

the learned Judge of the Trial Court has rightly convicted the

husband of the deceased Anil @ Nikki under Section 304B and

498A of IPC and Section 3(1) and 4-A of the Dowry Prohibition

Act, but, has grossly erred in acquitting the other accused persons,

who are the close relatives of husband, namely, Smt Shanti Devi

(mother of husband Anil @ Vikki), Mamta (sister of husband Anil

@ Vikki), Dr. Harishchand (brother-in-law of husband Anil @

Vikki), Sharad Kumar (elder brother of husband Anil @ Vikki),

Manju w/o Om Prakash (sister of husband Anil @ Vikki) and Smt.

Nisha w/o of Prashant Shrivas (sister of husband Anil @ Vikki).

5. The learned counsel for the applicant has drawn our attention

to the testimony of Vinod Kumar Sen (PW-1) - father of the

deceased Nutan, who has stated that his daughter Nutan was

harassed by all the family members including Anil @ Vikki. He has

also alleged that he spoke to Dr. Harishchand (brother-in-law of

Anil) in this behalf. Dr. Harishchand also abused him and threatened

him of dire consequences. It is pertinent to mention here that this

witness not only made omnibus allegations against all the family

members but also against Dr. Harishchand, who happens to be the

husband of the sister-in-law of the deceased and is a resident of

Jhansi whereas the incident took place at Sagar. It is also stated by

Vinod Kumar Sen (PW-1) that there was telephonic conversation in

this behalf also whereby Dr. Harishchand had abused him but

neither the telephonic conversations nor their details are on record.

Thus except bald statements, there is nothing on record to connect

the respondent Dr. Harishchand with the offence. Apart from that,

this witness has admitted in his cross-examination that he had

informed the police regarding the role of Dr. Harishchand but if the

same is not mentioned in his statement recorded under Section 161

Cr.P.C., then he cannot assign any reason for the same. Thus there is

a clear omission on the part of this witness. Similarly, Nisha Sen

(PW-2), who is the younger sister of deceased Nutan has alleged the

demand of dowry by Anil @ Vikki, the husband of the deceased and

has made omnibus allegations against the other accused persons (the

respondents herein). She has also deviated from her 161 Cr.P.C.

statement and has made improvisation in Court regarding the present

respondents. Shobhna Sen (PW-3) is also the younger sister of

deceased Nutan and she has reiterated the allegations as alleged by

the father and other sister Nisha Sen but no specific role has been

assigned by her against each of the accused persons and only

omnibus allegations have been made. Chandrakanta wife of Vinod

Kumar Sen has been examined as PW-4 as deceased Nutan was her

daughter. She has alleged demand of dowry soon after one week

after the marriage took place and has also made the same allegations

as are made by the other prosecution witnesses.

6. The learned Judge of the Trial Court after appreciating the