State vs Rakesh Ram & Anr.
2010 Latest Caselaw 5691 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+             Crl. M.A. No. 17740/2010 & Crl. LP No. 433/2010


%                        Date of Decision: 14.12.2010

State                                                     .... Appellant
                       Through Mr. Jaideep Malik, APP

                                  Versus

Rakesh Ram & Anr.                                       .... Respondent
                       Through Nemo

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR.JUSTICE S.L.BHAYANA

1.       Whether reporters of Local papers               YES
         may be allowed to see the judgment?
2.       To be referred to the reporter or not?          NO
3.       Whether the judgment should be                  NO
         reported in the Digest?



ANIL KUMAR, J.

* Crl. M.A. No. 17740/2010

This is an application by the appellant/applicant seeking

condonation of delay in filing the petition for leave to appeal on the

ground that the impugned judgment was pronounced on 19th January,

2010 and considerable time was taken in procuring the certified copy of

the judgment, which was received on 26th March 2010.

The applicant has given the details as to who has

considered the file to decide whether a petition for leave to appeal is to

be filed or not.

The applicant has relied on Collector of Land Acquisition Vs.

Katiji, (1987) 2 SCC 107 and State of Nagaland Vs. Lipok Ao, 2005 (3)

SCC 752 holding that sufficient cause should be considered with

pragmatism in justice oriented approach rather than a technical

defection of sufficient causes for explaining every days delay having

regard to considerable delay of procedural red tape in the decision

making process of the government, certain amount of latitude is

permissible and should be given. The applicant has contended that the

State Government is the impersonal machinery working through its

officers or servants- hence it cannot be put on the same footing as an

individual.

The petitioner/applicant, in the circumstances, has contended

that there is sufficient cause for condoning the delay of 211 days in

filing the petition for leave to appeal.

Considering the averments made in the application, it is apparent

that the petitioner has been able to make out sufficient cause for

condonation of delay in filing the petition for leave to appeal.

Consequently, the application under Section 5 of the Limitation

Act, seeking condonation of delay in filing the petition for leave to

appeal is allowed and delay is condoned.

Crl. LP No. 433/2010

The petitioner has sought leave to appeal against the order dated

19th January, 2010 passed by the Sessions Court in Sessions Case No.

92/2008 titled as State Vs. Rakesh Ram and Mahipal @ Ankit arising

out of FIR 362/2006 under Section 498A/304B/34 of IPC, at P.S. Delhi

Cantt., New Delhi acquitting the accused persons on all charges.

The case of the prosecution is that on 3rd October 2006, DD No.

3A was received stating that a woman had been admitted at Safdarjung

Hospital with burn injuries. The allegations against the accused

persons were leveled on 4th October 2006 by the complainant, Geeta,

PW-2 sister of the deceased Hema, residing at Village & PO Badalo,

District Pithoragarh, Uttaranchal, stating before the SDM, Sh. S.M.

Bharadwaj, PW-3 that "her sister Hema was married to accused Rakesh

Ram as per Hindu rites and customs on 22nd June 2004 with the

consent of family members without any dowry demand. Husband of her

sister, accused Rakesh Ram used to torture, harass and beat her sister,

Hema as she refused to give the amount of Rs 3,00, 000/- which was

deposited by her mother in the name of her sister in FDRs. Accused

Rakesh Ram used to threaten her sister to kill her. At one point of time,

pregnancy of her sister was terminated, due to torture, beatings and

harassment by accused Rakesh Ram. On 3rd October 2006 at about

7:30 am, accused Rakesh Ram, husband of her sister informed them

about the death of her sister due to burns. She along with her family

members reached Safdarjung Hospital, on 4th October 2006, in the

morning and verified the factum of death." She further told that on

20th September 2006 her sister told her on telephone that accused

Rakesh Ram used to beat and ill treat her and used to threaten to kill

her. Since, her sister was pregnant, she was not allowed to travel, so

they wanted to take her after delivery of child but prior to that accused

killed her by burning. On this statement, case was registered as FIR

No. 362/06. Postmortem on the dead body was conducted and

investigation was carried out. However, the last rites of the deceased

had been performed by the accused.

During the investigation, on the pointing out of Geeta, accused

Rakesh Ram and accused Mahipal @ Ankit were arrested. Arrest memo

vide Ex. PW2/B and Ex. PW 13/B was prepared. Accused Mahipal @

Ankit was arrested as it was alleged that he used to instigate accused

Rakesh Ram for demanding money from the deceased. Statements of

witnesses were recorded. Site Plan of the place of incident was prepared

vide Ex PW12/A. Articles relating to deceased Hema were seized vide

seizure memo Ex. PW7/A. Postmortem report was obtained vide Ex.

PW9/A in which PW-9. Dr. Ajay Kumar opined that the cause of death

was shock as a result of antemortem flame burns involving 95% of total

body surface area and time since death was approximately one and a

half days. Thereafter, after completion of the investigation charge sheet

was filed against both the accused persons. After having found prima

facie case against both the accused persons, charge against both the

accused persons was framed under Section 498 A/ 304 B read with

Section 34 IPC to which they pleaded not guilty and claimed trial.

The prosecution has alleged that the accused Rakesh Ram on

instigation of accused Mahipal @ Ankit started harassing, beating and

torturing Smt. Hema Kumari for want of more dowry, and that soon

before her death and thereafter, in furtherance of their common

intention, they put her on fire on 2nd October 2006 as a result of which

she was hospitalized on the same date and on 4th October 2006, due to

said burn injuries, she died an unnatural death within a period of

seven years of her marriage.

In order to prove its case, the prosecution has heavily relied on

the deposition of Smt. Geeta, real sister of deceased as PW-2, Sh.

Ishwar Raj, uncle of deceased as PW-5, Sh. Himmat Ram, maternal

uncle of deceased as PW-11 and Smt. Leela as PW-8.

PW-2, Smt. Geeta had categorically stated in her statement made

before the SDM vide Ex PW2/A and in court that accused Rakesh Ram

used to torture, beat and harass her sister after the marriage in view of

the demands of the three lacs deposited in the name of the deceased by

her mother. It has also been alleged that on 20th September 2006, her

sister had telephoned her stating that she was given beatings by

accused Rakesh Ram for demand of money and that even a threat to

kill her was made by the accused. These allegations have been also

been repeated by PW-5, PW-11 and PW-8, however, they are omnibus

without any specific particulars.

However the Trial court has observed the various contradictions

and inconsistencies in the depositions of the above stated witnesses.

PW-2, Smt. Geeta herself stated that at the time the marriage was

solemnized, there was no demand of dowry made by the accused

Rakesh Ram. After the marriage, PW-2's sister, the deceased came to

Delhi along with her husband and in-laws, however none from the

maternal side had visited her. Also when she came along with her

husband to Pithoragarh, she came with gifts and clothes for PW-2 and

her other sisters and stayed on for a total of 15 days. After which she

left for Delhi happily. However still she did not mention any demand for

dowry made or any account of cruelty inflicted on her. Nor was there

any written complaint made to any authority during the 5-6 months

she stayed with her sister PW-2 in Pithoragarh. PW-2 has also deposed

in her cross-examination that accused Mahipal @ Ankit never

instigated accused Rakesh Ram for demand of Rs. 3 Lacs in her

presence.

PW-5, Sh Ishwar Raj too had categorically deposed that he never

used to visit the house of deceased as they resided in a restricted army

area where one could only enter with a pass. He had further deposed

that he never witnessed his niece being beaten by the accused Rakesh

Ram and that accused Rakesh Ram had in fact opened a joint account

in the post office with the deceased which was operated by both of

them. Also PW-7 Dev Ram and PW-8 Leela, during their cross-

examination had categorically deposed that the accused used to treat

the deceased Hema with love and affection and that she had never

complained about the accused. It had also been deposed that accused

Rakesh Ram never demanded any FDRs or ornaments of the deceased

and that it is the sisters of the deceased Hema who used to demand

money and financial help from Hema.

The trial court has also carefully scrutinized the dying

declaration made by the deceased to PW-6, vide Ex PW6/A. SI Nihal

Chand PW-6 is the one who had moved an application before the doctor

for recording the statement of Hema as Ex. PW6/A. The doctor had

opined that the patient was fit for making the statement and that she

was conscious, coherent and oriented. Hema gave her statement

voluntarily which was read over to her and then endorsed by her as

well. She categorically stated that her husband was keeping her well

and no complaint against him was made by her.

PW-9 Dr. Ajay Kumar too has corroborated this fact that as per

the history contained in Ex PW 10/A, it was given by the patient Hema

Kumar herself that she had tried to commit suicide by pouring

kerosene oil over her body. Initially she was treated at Air Force Medical

Centre and thereafter referred to Safdarjung Hospital. He too deposed

that she was conscious, oriented and coherent. The Trial court has

rightly placed reliance on the dying declaration of the deceased and this

court does not find any irregularity or perversity in the finding of the

Trial Court. The learned Public Prosecutor has not made out any

ground as to why the dying declaration of the deceased be not relied or

believed. No other evidence has been pointed out which has not been

considered by the Trial Court. No ground has been made out by the

petitioner which will make the findings of the trial Court unsustainable

or perverse in any manner.

So far as the demand for 3,00,000/- is concerned, the same was

pertaining to a fixed deposit and the FDR of the same remained with

PW-2 Smt. Geeta and it never passed to the accused Rakesh Ram. Also

as to the allegations of beatings and torture to deceased Hema is

concerned, the same is not proved on record as there is no direct

evidence to suggest the same. The allegations regarding beatings to the

deceased are also omnibus and without any particular. These

allegations cannot be relied on in view of statement given by her before

her death that her husband used to keep her well. In view of her

statement which was given by her in coherent state of mind, the

allegations of beatings to the deceased by the accused cannot be

believed or relied on.

This is settled law that in reversing the finding of acquittal the

High Court has to keep in view the fact that the presumption of

innocence is still available in favor of the accused which is rather

fortified and strengthened by the order of acquittal passed in his favor.

Even if on fresh scrutiny and reappraisal of the evidence and perusal of

the material on record, if the High Court is of the opinion that another

view is possible or which can be reasonably taken, then the view which

favors the accused should be adopted and the view taken by the trial

Court which had an advantage of looking at the demeanour of

witnesses and observing their conduct in the Court is not to be

substituted by another view which may be reasonably possible in the

opinion of the High Court. Reliance for this can be placed on 2009(1)

JCC 482=AIR 2009 SC 1242, Prem Kanwar v. State of Rajasthan; 2008

(3) JCC 1806, Syed Peda Aowlia v. the Public Prosecutor, High Court of

A.P, Hyderabad; Bhagwan Singh and Ors v. State of Madhya Pradesh,

2002 (2) Supreme 567; AIR 1973 SC 2622 Shivaji Sababrao Babade &

Anr v. State of Maharashtra; Ramesh Babu Lal Doshi v. State of

Gujarat, (1996) 4 Supreme 167; Jaswant Singh v. State of Haryana,

2000 (1) JCC (SC) 140. The Courts have held that the golden thread

which runs through the web of administration of justice in criminal

cases is that if two views are possible on the evidence adduced in the

case, one pointing to the guilt of the accused and the other to his

innocence, the view which is favorable to the accused should be

adopted. The paramount consideration of the Court is to ensure that

miscarriage of justice is prevented. A miscarriage of justice which may

arise from acquittal of the guilty is no less than from the conviction of

an innocent.

The High Court has the power to reconsider the whole issue,

reappraise the evidence and come to its own conclusion and findings in

place of the findings recorded by the trial Court, if the findings are

against the evidence or record or unsustainable or perverse. However,

before reversing the finding of acquittal the High Court must consider

each ground on which the order of acquittal is based and should record

its own reasons for not accepting those grounds and not subscribing to

the view of the trial Court that the accused is entitled to acquittal.

Thus the trial Court had concluded that the prosecution had

failed to prove its case beyond all reasonable doubt against the accused

persons and consequently both the accused persons were acquitted on

all charges. The learned public prosecutor too has not been able to

make out any ground which will show that the inferences drawn by the

Trial Court are unsustainable or not based on evidence or that any

material evidence has been ignored by the Trial Court.

On perusal of the Trial Court record and the evidence of all the

witnesses, it is apparent that there is no allegations of dowry demands

or cruelty being successfully imputed against the accused Rakesh Ram

and Ankit. The inconsistencies in the depositions of PW-2, PW-5, PW-

11 and PW-8 are too glaring to be ignored and the trial court has rightly

disbelieved them. This court also finds no perversity or illegality in the

finding of the Trial Court on perusal of the record of the Trial Court. In

fact none of the witnesses have deposed any instance in which they had

witnessed the accused Rakesh Ram inflicting cruelty or harassment on

the deceased. This coupled with the fact that the deceased had made a

statement before PW-6 SI Nihal Chand vide Ex PW6/B, admitting that

her husband was keeping her very well and that she had burnt herself

by pouring kerosene oil on herself, renders the allegations against the

accused persons unreliable. As this is diametrically opposite to what is

deposed by PW-2. Smt. Geeta with respect to the telephone call from

the deceased on 20th September 2006 prior to the date of incident, in

which the deceased allegedly complained about being beaten in view of

dowry demands. The dying declaration vide ExPW 6/B rebuts the

presumption u/s 113A and as such the prosecution has failed to prove

its case beyond all reasonable doubt. This court does not find any

cogent reason to disbelieve the dying declaration which has been

recorded with due consideration to procedural requirements.

The conduct of the accused is also in consonance with the dying

declaration given in Ex PW 6/B, as the deceased was admitted to the

hospital by him and the last rites and all the consequent expenses were

borne by the accused. This fact has also been corroborated by the

deposition of complainant PW-2.

On perusal of the testimonies of the other witnesses also, this

Court is unable to find any cogent evidence against the accused Rakesh

Ram and Ankit on the basis of which it can be inferred that the

deceased Hema had died on account of cruelty or that she committed

suicide pursuant to any alleged dowry demands. PW-2 has also

produced one photocopy of ikrarnama mark vide PW2/A which

allegedly show that accused Rakesh Ram used to treat the deceased

with cruelty. However PW-11, Himmat Ram himself had admitted that

the said document did not contain any allegations of demand of dowry

or cruelty. He further deposed that he wasn't aware as to where the

original document was lying and that the original of PW2/A was never

even written by accused Rakesh Ram.

In the circumstances, the petitioner has failed to make out a

case of cruelty against the respondent and that the deceased committed

suicide on account cruelty inflicted on her pursuant to demands made

for dowry. Thus, there are no grounds to grant leave to appeal to the

petitioner and the decision of the Trial Court dated 19th January, 2010

cannot be faulted.

The learned counsel for the State Mr. Malik is also unable to

point out any illegality or perversity in the said order, which would

require any interference by this Court.

The petition for leave to appeal, in the facts and circumstances,

is without any merit and therefore, the prayer of the petitioner to grant

leave is declined and the petition is dismissed.

ANIL KUMAR, J.

S.L. BHAYANA, J.

DECEMBER 14, 2010