Rajasthan High Court
Vishram Singh vs Smt Bholi Bai on 1 March, 2012
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In the High Court of Judicature for Rajasthan at Jaipur Bench Jaipur
S.B.Civil Misc. Stay Application No.785 of 2010
S.B.Civil Misc.Appeal No.1049 of 2010
Smt. Bholi Bai @ Bholeshwari @ Kamlesh
Date of Order : 01.3.2012
HON’BLE MS. JUSTICE BELA M. TRIVEDI
Mr.J.R.Tantia for the appellant/applicant.
Mr. Pankaj Gupta for the respondent.
By the Court:
1.Heard learned counsel for the parties.
2.Vide order dated 16.4.2010, this court while issuing notice to the respondents had directed the appellant to continue to pay the maintenance at the rate of Rs.5,000/- per month and stayed the recovery of arrears of maintenance. Today, the matter has come up for confirmation of the said stay order.
3.It has been sought to be submitted by learned counsel Mr.J.R.Tantia for the appellant that the court below could not have passed the permanent alimony under section 25 of Hindu Marriage Act, when the divorce petition of the appellant was dismissed. According to him, in view of section 25(1) of the said Act, the amount of arrears be stayed during the pendency of the appeal. There is no force in the submissions of learned counsel for the appellant, inasmuch as under section 25 of the said Act, any court exercising its jurisdiction under the said Act may at any time of passing of any decree or at any time subsequent thereto, on application to it for the purpose of maintenance direct the concerned respondent to pay maintenance. In the instant case, the court below had specifically framed the issue with regard to the permanent alimony to be paid to the respondent-wife and while dismissing the divorce petition filed by the appellant, the court had directed the appellant to pay maintenance at the rate of Rs.5,000/- per month from the date of application i.e. 30.8.2005 till the date of payment. There is no reason to stay the said order. Hence, in the opinion of the court, the appellant is liable to pay entire amount arrears with interest as directed by the court below and also to continue to pay Rs.5,000/- per month to the respondent-wife.
4.In that view of the matter, it is directed that the appellant shall deposit the entire amount of arrears within eight weeks from today.
5.The application stands disposed of accordingly.
(BELA M. TRIVEDI) J.
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed. Om Prakash
HC: Dying declaration itself does not spell out offence punishable under Section 306 as also under Section 498A IPC: Acquitted
Bombay High Court
Criminal Appeal No. 275 Of 1996 vs Unknown on 17 February, 2012
Bench: A.P. Bhangale
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Criminal Appeal No. 275 of 1996
Applicant : State of Maharashtra
Respondent : Vasant Kumar s/o Dindayal Chudiwale, aged about 35 years, resident of Hospital
Mr S. S. Doifode. Additional Public Prosecutor for appellant-State Mr Ashish Chawre, Advocate for respondent
Criminal Revision Application No. 114 of 1996
Applicant : Madanchand s/o Saheblal Kashyap, aged about 70 years, resident of Central
Avenue, Bhawsar Chowk, Nagpur
Respondents : 1) The State of Maharashtra 2) Vasant Kumar s/o Dindayal Chudiwale,
aged about 35 years, resident of Hospital
Mr Sharma, Adv h/f Mr R. M. Daga, Advocate for applicant Mr S. Doifode, Additional Public Prosecutor for State Mr Ashish Chawre, Advocate for respondent no. 2
Coram : A. P. Bhangale, J
Dated : 17th February 2012
1. By Criminal Appeal No. 275 of 1996 and Criminal Revision Application No. 114 of 1996, acquittal of original accused Vasant Kumar Chudiwale is under challenge.
2. Accused Vasant Kumar had married with Maya on 27.6.1985 at Wardha. After marriage the couple resided at Wardha and Amravati where accused was working. Out of wedlock, accused and Maya were begotten with girl child. After two years of marriage, it is alleged that accused started ill-treating Maya on the ground that she had illicit relations with Rakeshkumar (PW 8), husband of her sister Meena. He insisted upon Meena to admit to the position and he will forgive her. Maya declined to admit such position which was non- existent. They came to Nagpur some time on 19.7.1987 and stayed at the house of Madanchand, uncle of deceased Maya. Looking at the tense situation, Madanchand called father and brother of Maya and a meeting took place in which it was decided to obtain clarification from Rakeshkumar. Therefore, brother of Maya by name Ramkumar went to Raipur, however, in the mean-while on 22.7.1987 Maya committed suicide by pouring kerosene on her person and 3
setting herself on fire in her uncle Madanchand’s house. Special Executive Magistrate recorded the dying declaration of Maya at the Government Hospital. It is alleged that Maya blamed accused for her suicide. Maya died on 25.7.1987. Brother of Maya lodged report at Police Station, Tahsil, Nagpur. After investigation, accused was charge-sheeted for the offences punishable under Sections 498A and 306 of the Indian Penal Code.
3. Learned Assistant Sessions Judge, Nagpur convicted the accused on both the counts and sentenced him to suffer rigorous imprisonment for one year each for the offences punishable under Sections 498A and 306 of the Indian Penal Code and directed him to pay fine of Rs. 500/- on each count.
4. Accused preferred appeal against the order of conviction and sentence and learned Extra Joint District Judge and Additional Sessions Judge, Nagpur while allowing the appeal, set aside the same. Aggrieved by the order of acquittal, the State has preferred appeal while uncle of deceased Maya by name Madanchand has preferred revision.
5. Learned Additional Public Prosecutor appearing for State and learned counsel appearing for revision-applicant tried to assail the judgment of acquittal by pointing dying declaration and they contend that Maya clearly and in specific words stated that her husband (accused) always used to say that she had illicit relations with her Jijaji (P. W. 8 Rakeshkumar) which she could not tolerate and that was the reason why she poured kerosene on her person and set herself on fire. Learned counsel further contend that Maya also blamed Rakeshkumar because of whose version, her husband suspected her chastity.
6. It is not in dispute that main plank of the prosecution case is the 4
said Dying Declaration (exhibit 35). Said Dying Declaration was recorded by the Special executive Magistrate and it bears thumb impression of Maya. It was recorded in Hindi language. She disclosed her name as Maya Chudiwale d/o Kewalchand Kashyap and Vasant Chudiwale as husband’s name and stated that she was residing at Wardha with joint family consisting of mother-in-law, brother- in-law, wife of brother-in-law. When questioned about how she was burnt, she disclosed thus :
Then she was asked about the cause, she stated thus : Reading the above dying declaration as it is, would at the most indicate intolerant nature of deceased as a result of which she decided to end her life by pouring kerosene upon her own body and igniting it. The reason stated was that accused was suspecting because of some statements made by Rakeshkumar (who is not acused) that he had illicit relation with Maya. In order to constitute 5
the offence under Section 306 of the Indian Penal Code, it is necessary that there must be some evidence that the accused has abetted the deceased to commit suicide. It is necessary that accused must have instigated the person who has committed suicide or intentionally aided by any act or illegal omission causing the doing of that thing. The Apex Court in Ramesh Kumar vs. State of Chhatisgarh reported in (2001) 9 SCC 618 has held as under : “Instigation is to goad, urge forward, provoke, incite or encourage to do “an act”. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the 6
offence of suicide should be found guilty.”
7. Thus, there should be positive act on the part of the accused necessary to spell mens rea. It is settled legal position that “instigate” denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. Presence of mens rea is the necessary concomitant for instigation. Words uttered in a quarrel or on the spur of moment, such as “to go and die”, cannot be taken to be uttered with requisite mens rea. Section 306 of the Indian Penal Code requires abetment as an essential ingredient which is defined under Section 107 of the Penal Code which lays down that “a person abets the doing of a thing who, firstly instigates any person to do that thing, or secondly, engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or thirdly, intentionally aids, by any act or illegal omission, the doing of that thing, is said to have committed the abetment.
8. Bearing the above principles in mind, in the present case, the dying declaration in question does not spell out offence punishable under Section 306 as also under Section 498A of the Indian Penal Code. Considering the evidence led before the trial Court, in my opinion, the lower Appellate Court was right in reaching to a conclusion of acquittal and to set aside the judgment and order passed by the trial Court for want of essential ingredients to make out offences punishable under Section 306 and 498A of the Indian Penal Code. I do not find any valid ground or reason to interfere with the impugned judgment and order. 7
9. In the result, both the criminal appeal as well as criminal revision application fail and are dismissed.
A. P. BHANGALE, J
A court in the US has ordered a man to post an apology to his estranged wife on his Facebook page for 30 days to avoid a jail sentence for blasting her on the social networking site, a case that stirred controversy over freedom of speech rights.
Mark Byron, a Cincinnati-based photographer, was so bothered by his pending divorce and child visitation issues that he wrote a nasty note to “vent” out his frustration.
“I just went on Facebook to vent,” Byron said. “I kind of likened it to having a drink with a friend at a bar and telling them about things.”
The note implied that his wife was out to ruin his life. “If you are an evil, vindictive woman who wants to ruin your husband’s life and take your son’s father away from him completely – all you need to do is say you’re scared of your husband or domestic partner and they’ll take him away!” the note on his Facebook wall said.
Despite Byron blocking his wife from seeing his Facebook wall, she learnt of the post which touched off a battle that resulted in a Hamilton County judge ordering Byron jailed for his Facebook rant.
To avoid 60-days in jail, Byron was asked to post on his page an apology to his wife and all of his Facebook friends, something free-speech experts found troubling.
“The idea that a court can say, ‘I order you not to post something or to post something’ seems to me to be a 1st Amendment issue,” free-speech expert Jack Greiner said.
Magistrate Paul Meyers said Byron could either go to prison and pay a USD 500 fine or post an apology and pay child support.
The apology was written by the judge and Byron has been posting all the news stories about his case on his Facebook page.
MOGA: Close on the heels of a Canadian NRI conspiring to eliminate his wife by hiring contract killers, a case of an Australian NRI woman duping her Punjabi husband has come to light.
Bagipura village resident Gurwinder Singh had married Amandeep Kaur, who has been living in Australia, in 2009 and sent her Rs 16.70 lakh for further studies, said family members of Gurwinder.
While leaving for Australia after solemnizing the marriage, Amandeep had promised to help Gurwinder reach Australia after getting visa for him, which she never did. Instead, she sent divorce papers to Gurwinder some days ago.
Police have booked Amandeep Kaur, her father Ajmer Singh, mother Jasbir Kaur and brother Amarinder Singh for fraud and cheating. Amarinder was arrested on Wednesday.
It was on Tuesday when Moga’s Nihal Singh Wala police booked Gurjit Singh of Canada for allegedly hiring contract killers to eliminate his Punjabi wife Harpreet Kaur. The victim had told the police that she came to know of her husband marrying again in Canada, and had been pressurizing her for divorce.
नोएडा।। याद है आपको नोएडा की निशा शर्मा? 2003 में एक दिन अचानक मीडिया ने सेक्टर-56 में रहने वाली निशा को सुर्खियों में ला दिया, क्योंकि उसने दहेज मांगे जाने पर भरे मंडप में शादी से इनकार कर दिया था और बरात लौट गई। लेकिन कोर्ट ने बुधवार को नौ साल पहले निशा की ओर से दर्ज कराए गए दहेज के आरोप को बनावटी कहानी ठहरा दिया।
निशा से शादी करने पहुंचे मुनीष दलाल ने इस केस में नौ साल तक कोर्ट के चक्कर काटे। बुधवार को दिल्ली के विकासपुरी स्थित अपने घर में मुनीष ने कहा कि हमें इंसाफ तो मिला, लेकिन जिंदगी बर्बाद होने के बाद। हम इस मामले को ऐसे ही नहीं छोड़ेंगे। झूठे केस में फंसाने पर निशा और उसके पिता डी.डी. शर्मा के खिलाफ हर्जाने का केस करेंगे।
कोर्ट ने बुधवार को निशा शर्मा के दहेज केस को न सिर्फ बनावटी कहानी माना, बल्कि मामले में एकतरफा रिपोर्टिंग करके चारों आरोपियों की मानहानि करने के आरोप में एक बड़े अखबार के रिपोर्टर के खिलाफ मुकदमा शुरू करने का आदेश भी दिया। इन चारों आरोपियों मुनीष, उनकी मां विद्या दलाल, बुआ सावित्री देवी और निशा के कथित प्रेमी नवनीत को बाइज्जत बरी कर दिया गया। कोर्ट ने कहा कि जब निशा शर्मा की मुनीष दलाल के साथ शादी ही नहीं हुई, तो दहेज ऐक्ट कैसे लागू हो सकता है।
सीजेएम ने निशा की कहानी पर कई सवाल खड़े किए। फैसला सुनने के लिए निशा की ओर से वकील समेत कोई भी व्यक्ति कोर्ट में नहीं था। इससे पहेल भी इस केस की सुनवाइयों में गवाही देने निशा शर्मा कभी नहीं पहुंची और न ही उनके पिता डीडी शर्मा शादी की तैयारियों की सीडी और जरूरी सबूत पेश कर सके।
AJMER: In a freak incident, a 35-year-old woman chewed off the fingers of a four-year-old-boy in Central Jail in Ajmer on Wednesday.
The woman Barfi, who has been serving sentence for throwing her son from a running train, attacked the child who has been staying with his mother, also a prisoner. While trying to rescue her son, the woman too was attacked.
The jail administration has lodged a complaint against Barfi at the Civil Lines police station, and sent the injured to JLN Hospital.
According to sources, the incident occurred during lunch hour, when Salma went to collect her food, and her son Arman was playing in the jail premises.
“Barfi saw my son and started beating him. She later, chewed off his fingers,” said an inconsolable Salma. Seeing her son crying in pain, she rushed to save him. “But, Barfi attacked me and bit my hand,” she said.
The child has been in state of shock, and not uttered a word since the incident occurred.
Barfi was arrested by the Railway police last month when she had thrown her child from a train running between Jaipur and Ajmer. She was remanded in judicial custody.
Sources said Barfi would spend long hours sitting quietly in a corner but often got angry on seeing Arman.
Jail administration, however, denied to comment on the incident.
Government of India
Ministry of Home Affairs
Expeditious trial of cases has to be ensured by making necessary changes in procedure. States must create a separate investigation cadre. Separate prosecution cadre is also required. This was stated by the Union Home Minister Sh. P. Chidambaram at the Consultative Committee meeting of the Ministry of Home Affairs which discussed the topic: Investigation, Prosecution & Trial – the need for revamping.
He informed members that Law Commission of India has been requested to give a report on the amendments required immediately. He said the Department- related Parliamentary Standing Committee on Home Affairs while examining the Code of Criminal Procedure (Amendment) Bill, 2010 in its 146th Report has recommended that there should be comprehensive review of the Criminal Justice System and introduction of composite draft legislation for revamping of the Criminal Justice System in the country. Accordingly, Ministry of Law & Justice have been requested to request the Law Commission of India to examine and give a comprehensive report covering all aspects of criminal law, so that comprehensive amendments could be made in the various laws viz. IPC, Cr.P.C., Evidence Act, etc. It was also suggested that the Law Commission of India may also, inter-alia, take into account the recommendations made by Malimath Committee & other Committee/Commission in this regard. The recommendations of the Law Commission of India in this regard are awaited.
While initiating the discussion, the Union Home Minister said, the investigation has moved to technology based evidence, new forensic tools are used by other countries. We also need to move towards it.
He said the Committee on Reforms of the Criminal Justice System, constituted on 24.11.2000 under the Chairmanship of Justice V. Malimath, former Chief Justice of Karnataka and Kerala High Courts, considered measures for revamping the criminal justice system and gave recommendations on various aspects of the criminal justice system including investigation, prosecution and the trial procedure in its Report submitted in March, 2003. Since the Criminal Law and Criminal Procedure are on the Concurrent List of Seventh Schedule to the Constitution of India and the same are administered by the State Governments, any amendment to them requires consultation with the State Governments. In view of this, the report was forwarded to the State Governments and Union Territories Administrations to obtain their views/comments.
The Law Commission of India also reviewed the Code of Criminal Procedure, 1973 in its 154th Report. The 197th Report of the Law Commission of India examined the issues relating to appointment of Public Prosecutor. The view of the State Governments/Union Territory administration on recommendation of Law Commission have been sought. Some of the issues relating to investigation, prosecution and trial procedure highlighted in these reports are:
The Investigation Wing should be separated from the Law and Order Wing. A separate wing of the investigation with clear mandate and it is accountable only to Rule of Law is the needed. The Law Commission of India specifically discussed this issue threadbare in its 154th Report and categorically recommended for separating the investigating agency from the law and order police. Placement policy of investigating staff, inadequate training, Comprehensive use of Forensic Science from the inception and problems related to Medico Legal Services were highlighted.
Several measures have been suggested to improve the quality of investigation. Interrogation centres should be set up at district headquarters in each district where they do not exist and strengthened where they exist. A mechanism for coordination amongst investigators, forensic experts and prosecutors at the State at district level for effective investigations and prosecutions should be devised. A suitable provision be made to exclude the period during which the accused is not available for investigation on grounds of health etc. for computing the permissible period of police custody. Refusal to entertain complaints regarding commission of any offence should be made punishable. Stringent punishment for false registration of cases & false complaints.
Members highlighted that the common man suffers as the manner in which police investigation is conducted is of critical importance to the functioning of the criminal justice system. A prompt and quality investigation is the foundation of an effective criminal justice system. They also raised the issue of non-registration of cases by police in some cases. On this, Sh. P. Chidambaram informed Members that in Delhi all but sensitive FIRs are on website. The members also called for separate cadres for investigation work and prosecution.
The following members of Consultative Committee were present at the meeting:
Shri H.K. Dua, Nominated, Dr. K. Keshava Rao, INC, Andhra Pradesh, Shri Thomas Sangma, NCP, Meghalaya, Dr. Vijay Mallya, IND, Karnataka from Rajya Sabha. Shri Bhisma Shankar alias Kushal Tiwari, BSP, U.P., Shri D.B. Chandre Gowda, BJP, Karnataka, Shri Ismail Hussain, INC, Assam, Shri J.P. Aggarwal, INC, Delhi, Shri Kalyan Banerjee, AITC, W.B., Shri Lalu Prasad, RJD, Bihar, Dr. Rattan Singh Ajnala, SAD, Punjab, Shri Sheeshs Ram Ola, INC, Rajasthan, Dr. Thokchom Meinya, INC, Manipur, Shri Yogi Aditya Nath, BJP, U.P. from Lok Sabha.