State vs Ravinder Chhabra & Ors.
2010 Latest Caselaw 3486 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          Crl. L.P. No.151/2009

%                      Date of Decision:    27.07.2010
                                                               Appellant
State
                       Through Mr. Jaideep Malik, APP


                                 Versus


Ravinder Chhabra & Ors.                      .... Respondents
                  Through Mr. Subhash Wason, Advocate


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SURESH KAIT

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



ANIL KUMAR, J.

*

CRL.M.A.9704/2009 (condonation of delay)

This is an application filed by the petitioner for condonation of

delay of 3 ½ months in filing the petition. For the reasons stated in

the application, it is allowed. The delay in filing the petition is

condoned.

Crl. L.P. No. 151/2009

1. The respondents, namely, Mr. Ravinder Chhabra, Ms. Puja

Chhabra, Mr. Shiv Kumar Anand and Ms. Lata Anand were charged

for offences under Section 498A/304B/34 of IPC in FIR 15/2000, PS

Patel Nagar and by impugned judgment and order dated 6th January,

2009, the respondents have been acquitted of the charges framed

against them.

2. The case as set up by the petitioner was that on 5th September,

1998 Puja @ Pallavi, daughter of Mr. Ram Lal was married to Mr.

Ravinder Chhabra, respondent No. 1 as per Hindu Rites. After the

marriage, the matrimonial life was not smooth as allegedly Puja's

husband, Ravinder Chhabra (R-1) married sister-in-law (Nand) R-2

and her parents-in-law Nanak Chand Chhabra and Kalawati (since

expired during trial) used to taunt her for not bringing sufficient

dowry.

3. The allegations made was that few days prior to their marriage

a two wheeler scooter was demanded which was given despite the

financial condition of Puja's parents not permitting it and their

financial condition being not good. A washing machine was also

demanded within three months, which was also given by the parents

of Puja.

4. There were allegations of Puja's in-laws being not given proper

respect in the marriage of the brother of Puja, namely, Jawahar-PW-

4.

5. The prosecution version is that on 10th January, 2000 at

around 5:45 PM, the husband of Puja (R-1) had informed that Puja @

Pallavi was not well and she had been taken to hospital. Accordingly,

the parents of Puja rushed to Anand Nursing Home, which was near

the matrimonial home, where they found Puja in unconscious state

being taken in a TSR to Ganga Ram Hospital by her husband R-1.

At Ganga Ram hospital, Puja was, however, declared 'brought dead'

by doctors.

6. Since Puja had died within seven years of her marriage, the

statements of the parents of Puja were recorded and the case under

Section 498A/304-B IPC was registered at PS Patel Nagar. The

statements of other brother and sisters-in-law (Bhabhi) of Puja were

also recorded.

7. Pursuant to the registration of the case, Mr. Ravinder

Chhabra(husband) along with his parents Nanak Chand Chhabra

and Smt. Kalawati (since both expired) and two sisters, namely, Smt.

Puja Chhabra (R-2) and Smt. Lata Anand (R-4) and husband of Smt.

Lata Anand Sh. Shiv Kumar (R-3) were arrested.

8. The postmortem Ex.PW-3/A of deceased Puja was carried out

and her viscera for chemical examination was also preserved. In the

chemical analysis report of the viscera from FSL Ex.PX-1, the

presence of any common poison was ruled out and the doctor also

expressed his inability to give any definite opinion Ex.PW-3/B about

the cause of death of Puja as FSL report had ruled out presence of

any common poison in the viscera. The findings of the postmortem

Ex.PW-3/A were, however, of a case of poisoning on account of

congestion in the brain matter, Tracheal Mucosa and lungs and

other organs of abdomen.

9. During the trial, Sh. Nanak Chand Chhabra, father-in-law and

Smt. Kalawati, mother-in-law expired and Additional Sessions Judge

after considering the testimonies of the witnesses and the record, has

held that the mere demand of two wheeler scooter or washing

machine either a few days prior to marriage or immediately after

three months of the marriage would not constitute demand of dowry

in the facts and circumstances of the case on account major

contradictions and variations in the testimonies of witnesses

regarding alleged demands. It was also held any cruelty being

inflicted on Puja or any harassment to her has not been established

from the deposition of various prosecution witnesses. Regarding the

alleged demand of Rs. 5000/- which was fulfilled by the brother

about which other witnesses have not at all deposed, it was held that

the same was also not established as it was not corroborated and the

sole statement of PW-4 Mr. Jawahar, brother of the deceased, could

not be relied on as he had made improvements over his previous

statement recorded under Section 161 of Criminal Procedure Code.

The Sessions Court also relied on the fact that the concerned doctor

i.e. Sarvesh Tandon was not examined to prove the cause of death

and even opinion given by him reflects that he was not clear as to the

cause of death. The Sessions Court has given benefit of doubt under

Section 113B of the Evidence Act, 1872 to the respondents holding

that the prosecution has miserably failed to prove the material

ingredients of the offence under Section 498A/304B/34 of IPC.

10. The petitioner has impugned the judgment passed by the

Sessions Judge and has sought leave contending, inter alia, that the

Court has failed to appreciate the consistent statement of witnesses

i.e. PW-1 Sh. Ram Lal Popli, PW-4 Sh. Jawahar, brother of the

deceased; PW-9 Ms. Manju Popli (bhabi of the deceased) and PW-10

Subhash who have corroborated the statement of each other on every

aspect of the commission of crime and has wrongly acquitted the

respondents by wrongly evaluating the statement of complainant and

the witnesses. It is further contended by the petitioner that the

statement of Subhash PW-10 has been wrongly interpreted and

Court failed to appreciate the testimony about the demand of Rs.

5,000/- being made by the deceased at the instance of husband and

which amount was given to the deceased by her brother PW-4 Sh.

Jawahar. It is contended that no further corroboration was required

and in the circumstances, it is asserted that all the ingredients for

constituting a crime under Section 498A/304B/34 IPC of Indian

Penal Code are made out and consequently, the leave should be

granted, appeal be heard and the impugned judgment dated 6th

January, 2009 be set aside.

11. This Court has heard the learned prosecutor at length and has

also perused the testimonies of the witnesses specially the material

witnesses including PW-1 Sh. Ram Lal Popli, PW-4 Sh. Jawahar,

brother of the deceased; PW-9 Ms. Manju Popli (bhabi of the

deceased) and PW-10 Subhash and the entire trial Court's record.

12. Sh. Ram Lal Popli PW-1, father of the deceased has made

general allegations without any particulars or instances about the

alleged harassments and the taunts to the deceased in connection

with the alleged demand of dowry. He deposed that a scooter was

demanded in the marriage and thereafter a washing machine was

given two months after the marriage. It was also deposed that in the

marriage of his son on 4th September, 1991, sisters-in-law of his

deceased daughter had complained that they were not given full

respect. In the cross-examination, he admitted that his daughter

used to visit him after every 4th or 5th day and her husband Ravinder

used to accompany her. He was confronted with his statement about

giving the washing machine with the statement Ex. PW1/DA, where

it was not so mentioned.

13. PW-4 Jawahar, brother of the deceased had deposed that some

days prior to marriage, a scooter was demanded and the demand was

made neither to his father nor to him but to the deceased, who had

met Ravinder R-1 prior to marriage whereas Sh. Ram Lal Popli PW-1,

father of the deceased in his statement had deposed that a scooter

was demanded from him. The said witness rather deposed that his

sister was treated well by the respondents at her in-laws house

initially. However afterwards the in laws of her sister started

demanding washing machine from deceased Puja which fact was told

by her to him. Though, he deposed that his deceased sister

complained of cruelty and harassment, however, the allegations of

alleged torture and beatings were general and no specific instances

were given. He also stated that the accused persons had demanded

Rs.5,000/- from the deceased Puja and he had given Rs.5,000/- to

her. In his cross-examination, he admitted that when his deceased

sister used to come to his house, her husband, respondent No. 1

used to accompany her on certain occasions. In the statement before

the Court he stated that at the time his deceased sister demanded

Rs. 5,000/-, which was given to her by him, no one was present at

that time, however this fact was not disclosed by him in his

statement on 7th January, 2000, made to the Investigating Officer.

He admitted that he had not stated the names of different accused,

who had demanded the washing machine. He has improved his

statement by saying that only two sisters-in-laws i.e. R-2 & R-4 of

deceased used to harass her whereas in his examination-in-chief, he

had deposed that all the accused used to harass, torture and beat

her. He had first stated that he had named all sisters-in-law, who

had harassed the deceased. Later on he changed his version and

deposed that out of the four sisters-in-law, only two sisters-in-laws

R-2 & R-4 used to allegedly harass her. The said fact was also not

disclosed by the said witness in his statement under Section 161 of

the Criminal Procedure Code with which he was confronted and

which statement was Ex. PW4/DA.

14. Mr. Jawahar, brother of the deceased also categorically

admitted in his cross-examination that none of the accused ever

demanded anything directly from them and all the demands used to

be through the deceased only. His deposition is materially different

from the testimonies of other witnesses as to through whom or to

whom the demand for scooter and washing machine were made. He

admitted that he had not disclosed in his statement Ex. PW4/DA

that his deceased sister was harassed right till the time of her death.

Though he deposed about the telephonic call from Puja (deceased) on

10th January, 2000 at 4:30 pm to Pradeep and his Bhabhi but as to

what had been disclosed or transpired in the telephonic

conversation has not been established as Pradeep and Bhabhi of PW-

4 were not examined.

15. Ms. Manju Popli, PW-9, is the wife of the brother of deceased,

who deposed that whenever deceased used to come to their house,

she used to complain about her in-laws and that she was regularly

harassed without disclosing as to what was the harassment. She also

deposed that the younger sister-in-law, Puja Chabra R-2 had asked

for a washing machine two-three months after the marriage. This

deposition is not consistent with the deposition of other witnesses on

this aspect. It was further stated that on the occasion of Karva

Chouth, the deceased was insulted by the mother-in-law and two

sisters-in-law of the deceased without specifying which of the sisters-

in-law had insulted her. Though, the father and the brother did not

disclose that the deceased was allegedly beaten by her husband,

however, Bhabhi of the deceased, namely, Manju Popli alleged that

the husband of deceased used to beat her on instigation of younger

sister of the husband.

16. Regarding alleged marks on the neck of the deceased, she

deposed that deceased had gone along with her husband and Pooja

Chabra (Nanad) on two wheeler scooter and on the way she was

pushed. The said witness had not disclosed in her statement under

Section 161 of Crl. P.C, which was exhibited as Ex. PW-9/DA that a

day prior to Sagan, the accused R-1 had demanded a two wheeler

scooter and that the accused/husband, used to beat the deceased at

the instance of his younger sister, Puja R-2. The instance about the

deceased being pushed from the scooter was disclosed by the said

witness in her statement under section-161 of Cr. P.C. Though she

deposed about the deceased calling her at 2:30 pm and thereafter

calling her again after every 25-30 minutes and finally at about 5:15

pm, however, this testimony of the said witness is not corroborated

by any other evidence.

17. Another witness examined by the prosecution is PW-10

Subhash, who used to sell fruits outside the shop of accused

persons, who rather deposed that he had never seen any quarrel

between the accused Ravinder R-1 and his wife and they had been

happily living together. He also deposed that he had not seen any

marks of injury on the neck of the deceased when he lifted the

deceased to TSR on the fateful day contrary to the deposition of

Manju Popli PW-9 (Sister-in-law of deceased).

18. Perusal of the testimonies of the prosecution witnesses reflect

that the alleged demand of a scooter is as before marriage and of a

washing machine later on. However, there are major inconsistencies

in the statements of these witnesses as to whom the demand was

made and who had made the demands. The said witnesses

testimonies have glaring inconsistencies even with the statements

given by them under Section-161 of the Criminal Procedure Code. In

the circumstances these testimonies cannot be relied to infer that the

demand for scooter and washing machine were made on behalf of the

accused. Pw4 Jawahar had rather admitted that no demand for

dowry was made directly from them by any of the accused.

19. The plea of the brother, Pw4 that an amount of Rs.5000/- was

demanded which was communicated by the deceased to him and he

had paid the said amount to the deceased also cannot be believed as

other witnesses have not deposed about it and it would be very

unlikely that the brother would not have disclosed about it to his

father PW-1 and Manju Popli PW-9, had such demand been made

and met by him. In the circumstances, the prosecution has failed to

establish that there was demand for dowry by which of the accused

from the deceased and from which of her family members.

20. Even if the demand of these two article i.e scooter and a

washing machine either a few days prior to marriage or after three

months of marriage are taken to be true, the element of harassment

and cruelty being inflicted upon the deceased with regard to said

demand had also to be established.

21. Regarding harassment and cruelty the allegations made are

omnibus in nature and has been made without any specific

instances only to involve most of the family members. Even the

allegation that the deceased was pushed from the scooter when she

was going with the husband and one of the sister in law cannot be

believed on the basis of testimony of Manju Popli PW-9. The father

and brother have not at all deposed about such an incident. Had

such an incident taken place Manju Popli PW-9 (bhabhi of the

deceased) would have disclosed about it to father and brother of the

deceased. Even the testimony of Manju Popli has major contradiction

and inconsistencies with her statement recorded under section 161

of the Cr. P.C and inconsistent with the statement of another

witness, PW 10 Subhash examined by prosecution who had helped

in taking the deceased in the TSR. The allegation regarding alleged

beatings or harassment of any other nature by husband to the

deceased were also without specific dates or near about dates and

time. Generic allegation about alleged harassment without any

specific dates or near about dates and times were nor relied upon by

the Apex Court in (2001) 9 SCC 417, Sunil Bajaj Vs State of M.P and

it was held that conviction cannot be on the basis of vague and

inconsistent and generic allegation. In Surinder Kaur v. State of

Haryana,(2004) 4 SCC 109, at page 111 the Supreme Court had not

relied on allegations of harassment which were omnibus in nature

and which had been made without any specific instances only to

involve the entire family.

22. The essential ingredients of the said offence are: (i) death of a

woman must have been caused by any burns or bodily injury or

otherwise than under normal circumstances; (ii) such death must

have occurred within seven years of marriage; (iii) soon before her

death she was subjected to cruelty or harassment by her husband or

relative of her husband; (iv) such cruelty or harassment must be in

connection with the demand of dowry; and (v) such cruelty is shown

to have been meted out to the woman soon before her death.

23. In the circumstances it is inevitable to infer that the

prosecution has failed to establish that the deceased was subjected

to cruelty or harassment by her husband or relatives of husband

with a view to coerce the deceased or any person related to her to

meet the alleged demands. In our opinion the appreciation of

testimonies of these witnesses of the prosecution by the trial judge

does not suffer from any grave infirmity. We also concur with the

view taken by the trial judge with respect to appreciation and

analyses of the testimonies of the witnesses.

24. Regarding the cause of death, PW-3 Dr. Ashok Jaiswal, Head

of the Department, Sabji Mandi Mortuary, Delhi deposed and proved

the postmortem report Ex. PW-3/A of Dr. Sarvesh Tandon. He also

proved Ex.PW-3/B on the back of the postmortem report about the

viscera report submitted by the IO for final opinion regarding cause

of death. According to him Dr. Sarvesh Tandon had opined that no

definite opinion can be given about the cause of death. The said

witness admitted that there was no fresh injury on the body of the

deceased and Dr. Sarvesh Tandon had preserved the viscera and

blood for analysis for ascertaining any poisoning. According to him

no final opinion on 11th January, 2000, the day of conducting

postmortem, could be given and even viscera report was negative for

any poison. He was categorical that in view of viscera analysis report

Ex-PX-1, no definite opinion about the cause of death could be given.

25. This cannot be disputed that unless the conclusions of the

Court drawn on the evidence on record are unreasonable, perverse

or unsustainable, the High Court should not interfere with the order

of acquittal, although the power of the High Court to reassess the

evidence and reach its own conclusions are as extensive as in an

appeal against the order of conviction, yet as a rule of prudence, the

High Court should always give proper consideration to matters such

as (i) the views of the Trial Judge as to the credibility of witnesses; (ii)

the presumption of innocence in favor of the accused, a presumption

certainly not weakened by the fact that he has been acquitted at the

trial; (iii) the right of the accused to the benefit of any doubt and (iv)

the slowness of an appellate Court in disturbing a finding of fact

arrived at by a Judge who had advantage of seeing the witnesses. In

the entirety of facts and circumstances this Court does not find that

the conclusions of the Trial Court are unreasonable, perverse or

unsustainable.

26. No other grounds have been raised by the petitioner seeking

leave against the judgment of the trial court dated 6th January, 2009

giving benefit of doubt to all the four accused and acquit them of the

offence under Section 498A/304B/34 of IPC. It would also be

relevant to note that where a view taken by the trial judge is

reasonable and probable view, merely because some other view may

also be probable or possible view, would not justify any interference

by the Appellate Court in the facts and circumstances. In the

circumstances petition seeking leave to appeal is dismissed and leave

is declined.

ANIL KUMAR, J.

July 27, 2010                                 SURESH KAIT, J.
'rs'