State vs Ashok Kumar & Others
2010 Latest Caselaw 3487 Del

*                  IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             CRL.LP No.198/2010

%                         Date of Decision: 27.07.2010

State                                                        .... Petitioner

                       Through Mr.Lovkesh Sawhney, APP for the State.

                                   Versus

Ashok Kumar & others                                      .... Respondents

                       Through Nemo.


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 No.7563/2010

This is an application seeking condonation of delay of 58 days in

filing the leave petition.

For the reasons stated in the application delay is condoned.

CRL.LP No.198/2010

1. This is a petition under Section 378(1) of the Criminal Procedure

Code for leave to appeal against the judgment/order dated 2nd January,

2010 passed by the Additional Sessions Judge in the case FIR

No.235/2003, under Section 498A/304B/34 of the Indian Penal Code,

Police Station Gokal Puri acquitting the respondents Sanjeev Kumar,

Rajeev Kumar, Ashok Kumar all sons of Vishambhar Dayal, Smt.Sharda

Devi and Smt.Geeta Rani of the said offences.

2. Brief facts to comprehend the case are that deceased Kavita got

married on 20th October, 2003 with respondent-3 Ashok Kumar about 5

months prior to 17th June, 2003 when she consumed Aluminum

Phosphide tablets and succumbed to that.

3. Since deceased Kavita had died an unnatural death within seven

years of her marriage, on the basis of the statements of the mother of

the deceased Smt.Kaushaliya Devi, PW-2, made before PW-3, Sh. R.K.

Chauhan, SDM on 17th June, 2003, investigation was carried out and

the respondents were arrested after completion of formalities and post

mortem of the body of the deceased. The allegations of the prosecution

were that the husband Ashok, R-3 and in laws of the deceased Kavita

used to taunt the deceased to bring dowry from her parental home and

at the time of the marriage a motorcycle was demanded which was

given to him. On 26th January, 2003 deceased visited her home and

told her that the respondent Ashok had demanded Rs.11,000/- and

had threatened to stab her if she did not get the money. 2-4 days after

that deceased Kavita came back to the matrimonial home and stated

that her husband Ashok has demanded

Rs.20,000/- which was allegedly given by PW-1, the father to satisfy the

dowry demand and to prevent any further harassment.

4. Challans were filed against Ashok Kumar, Smt.Sharda Devi and

Smt.Geeta Devi, husband, mother-in-law and sister-in-law of the

deceased for offences punishable under Sections 498A/304B/34 of IPC

and thereafter on 15th March, 2004 supplementary challans against the

brother in laws of the deceased namely Sanjeev Kumar (jeth) and Rajeev

Kumar (Devar) were also filed under Section 498A/304B/34 of IPC. On

conclusion of the trial the session Judge has acquitted all the accused

vide judgment dated 2nd January, 2010 primarily holding after

analyzing the evidence on record that though first two ingredients of

Section 304B that is death of deceased under abnormal circumstances

and within seven years of marriage had been made out, however, the

deposition of the witnesses made before the Court had major

improvements in comparison to the statements made before the SDM

and have major inconsistencies. The Session Judge analysed that the

mother of the deceased PW-2 categorically deposed that she and her

husband, PW-1 on their own free will had spent Rs.4.5 lakhs in the

marriage of their daughter. After marriage, according to her, the

respondent Ashok Kumar, husband had demanded Rs.50,000/-,

however, the accused were given Rs.20,000/- through Kavita. The said

witness of the prosecution was declared hostile. Though before Court

she had deposed that accused had demanded Rs.11,000/-and Ashok

Kumar had demanded Rs.50,000/- out of which Rs.20,000/- was given

and a confrontation had taken place before the husband of the

deceased and her brother Anil Kumar and that she had stated before

the SDM that accused had killed her daughter, however, when she was

confronted with the statement made before the SDM these facts were

found to be missing. The mother of the deceased had admitted that the

deceased used to visit after marriage and every time her husband used

to take her back and she went back in happy mood. She also deposed

that her daughter was happy on the occasion of marriage of Rajeev

Kumar (Devar).

5. The learned Session Judge also noted that PW.8 Anil Kumar,

brother of the deceased had admitted that the alleged demand of

Rs.20,000/- was not made by the deceased in his presence. However,

he used to give token amount of Rs.10/- as customary gift to the family

members of the husband of the deceased which used to accepted

without any taunts or further demands. He also admitted that

customary gifts were given to the deceased whenever she used to go

back to her matrimonial house after her stay at parental house and she

used to go back in happy mood. He admitted that both deceased and

her husband liked each other. In these circumstances, the session

Judge noted that the alleged demand of dowry of Rs.20,000/- has not

been made out on account of inconsistencies in the statement of the

witnesses and the fact that this was not mentioned in the statements

made before the SDM and, therefore, it was not proved whether the

demand of Rs.20,000/- was in lieu of demand of dowry or something

else. The session Judge relying on 2001 Crl.L.J 4700 (SC), Sunil Bajaj

v. State of M.P and (2004) 4 SCC 109, Surinder Kaur and Anr v. State of

Haryana and held that there are no allegations of specific demands

against the respondents and only vague allegations have been made.

The allegation of the deceased was being harassed and tortured for

demand of dowry are also vague and omnibus, could not be the basis

for conviction. Reliance was also placed on the fact that none of the

witnesses, relatives of the deceased made any complaint anywhere

regarding harassment of their daughter and relied on the ratio of the

case of Naraini Devi v. State, 1992 (1) C.C.Cases 524 holding that when

no complaint of protest is made in any corner and no report or

complaint is filed, it reflects and gives an impression that the entire

theory of demand of cash/dowry is an after thought. Relying on

Surinder Kaur and Anr (Supra), the Session Judge has also held that

general allegations regarding harassment and cruelty made without

proper time or date regarding the alleged harassment cannot be basis in

dowry death case. Relying on the testimonies of PW.2 mother

Smt.Kaushaliya Devi, PW.6 Usha Sharma, sister-in-law of deceased

(Devrani) and DW.3 Ram Kumar it was held that no harassment or

torture proximate to the unnatural death have been made out and thus

have acquitted all of them.

7. This is no more res integra that unless the conclusions of the trial

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 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 the witnesses; ii) the presumption of innocence in

favour of the accused, a presumption certainly not weaken 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 the advantage

of seeing the witnesses. 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.

8. Even on perusal of the evidence by this Court especially of

Sh.Prem Chand, PW.1, Smt.Kaushaliya, PW.2; Smt.Usha Sharma, PW.6

and Sh.Anil Kumar, PW.8 this Court is of the view that the prosecution

has failed to make out a case against the accused. PW.1 Prem Chand

father of the deceased though stated that they had given a motorcycle

and an amount of Rs.11,000/- to Sanjeev Kumar (jeth) of the deceased

though Sanjeev Kumar had demanded an amount of Rs.21,000/-. From

the perusal of the testimonies of the witnesses especially

Smt.Kaushaliya Devi, PW-2, it is apparent that Rs.4 to 4.5 lakhs had

been spent by the parents of the deceased on their own free will. In the

circumstances, if instead of scooter which was to be given by the

parents of the deceased, a motorcycle was demanded and given, the

same would not constitute a demand for dowry and similarly

Rs.11,000/- will not constitute a demand of dowry. The brother of the

deceased Anil Kumar, PW-8, has rather stated that on every occasion

he used to give a token gift of Rs.10/- to the husband of the deceased

and other family members. There is no deposition by the brother of the

deceased that the token gifts given were not accepted or were frowned

upon or they were taunted about a token gift of Rs.10/- only being

given to them. Regarding the demand of Rs.20,000/- for washing

machine also there are inherent contradictions in the statement of

PW.1, PW.2 and PW.8., Sh.Prem Chand, PW-1, father had stated that

no demand was made to him directly by any of the accused rather the

demand was made through Mahender Kumar who was a mediator.

Sh.Mahender Kumar has not been examined. The learned counsel for

the petitioner has contended that Sh.Mahender Kumar is related to the

accused and, therefore, he was not examined, however, from the

perusal of the testimonies it transpired that there was another person

to whom the complaints were allegedly made, however, even he was not

examined by the prosecution.

9. PW.1, Prem Chand had stated that the demand of Rs.51,000/-

was made from the deceased by the respondent Sh.Ashok Kumar her

husband which was told to him by his deceased daughter and the

amount of Rs.20,000/- was given by him for purchasing the fridge. The

said witness had not deposed before the SDM that his daughter,

deceased Kavita had told him about the demand of Rs.51,000/- made

by the accused. He had also not disclosed before the SDM that he had

given Rs.20,000/- to the deceased for purchasing fridge etc at the

behest of the accused. The father of the deceased rather admitted in the

cross examination that no specific amount was demanded in cash by

the accused at the time of the marriage except the amount of

Rs.21,000/- at the time of her tikka. When the parents of the deceased

have admitted that Rs.4 to 4.5 lakhs was spent by them on marriage on

their own without any demand from the accused, the alleged demand of

Rs.21,000/- at tikka ceremony pale into insignificance. PW.1 in order to

improve his testimony stated that though he does not have any letter

from the accused regarding any demands, however, his wife Kaushaliya

Devi would be having. PW.2 Kaushaliya Devi, however, did not admit

having received any letters of demand nor produced any. The said

witness also deposed that she had made complaint in respect of

harassment to Jaiprakash, however, Jaiprakash was not examined nor

any detail of alleged harassment to the deceased after marriage or

proximate to the death of the deceased have been given.

10. The mother of the deceased Smt.Kaushaliya Devi, PW-2 has

categorically admitted that she and her husband wanted to give scooter

to the husband of the deceased, however, at his request instead of

scooter, a motorcycle was given and in the circumstances it cannot be

construed as a dowry demand. Though Smt.Kaushaliya Devi, PW-2,

deposed that Rs.11,000/- was demanded through the daughter 2-4

days after the marriage, however, such a demand was not disclosed

before the SDM and the witness was confronted with the statement

exhibit PW.2/A without any specific explanation. Even the fact that

Rs.50,000/- was demanded and Rs.20,000/- was given was not

disclosed before the SDM leading to an inference drawn by the Session

Judge that the witnesses testimonies are inconsistent and on the basis

of the same inference without any reasonable doubt cannot be drawn.

11. During the trial Smt.Kaushaliya Devi, PW-2, had deposed that

there was a confrontation between Ashok Kumar, deceased's husband

and her son Anil Kumar on account of giving and taking and she had

interfered in the matter, However, no such facts were disclosed before

the SDM. Her statement that the accused had killed her daughter and it

was disclosed by her before the SDM was found contrary to the

statement made before the SDM. In the circumstances, on the

appreciation of evidence taking into consideration the various facets it

is apparent that the demand of Rs.20,000/- has been set up before the

Court and not before SDM by any of the witnesses.

12. The allegations of harassment and torture are also omnibus in

nature and has been made without any specific instances and more so

in order to involve the entire family of the in-laws of the deceased

Kavita. Regarding harassment, torture and cruelty no particulars of

time and date of the alleged harassment so meted out has been given

and in the circumstances such allegations are not sufficient to draw

that there have been harassment and torture to the deceased before her

death.

13. The essential ingredients of the offences with which the accused

were charged are: 1) death of a woman otherwise than under normal

circumstances; 2) such death having occurred within 7 years of

marriage; 3) soon before her death she was subjected to cruelty or

harassment by her husband or relatives of her husband; 4) such cruelty

or harassment must be in connection with the demand of dowry and 5)

such cruelty is shown to have been meted out to the woman soon before

her death. On appreciation of evidence, therefore, the inevitable

inference is that the prosecution has not been able to make out any

cruelty or harassment by the husband of the deceased Kavita or

husband's relatives, other accused. Even the demand for dowry has not

been made out in view of the specific deposition that 4 to 4.5 lakhs was

spent on the marriage by the parents of the deceased of their own and

the brother had been giving token gift of Rs.10/- without any taunts,

comments from the family member of the husband of the deceased.

Prosecution has also not made out any cruelty meted out to the

deceased soon before her death except making omnibus allegations of

cruelty and harassment without specifying the nature of cruelty or

harassment and the instances of such cruelty.

14. In the circumstances, even this Court is of the opinion that the

prosecution has failed to establish that the deceased was subjected to

cruelty or harassment by her husband or relatives of the husband,

respondents, with a view to coerce the deceased to meet any alleged

demands. In the circumstances, the appreciation of testimonies of these

witnesses of the prosecution by the trial Judge does not suffer from any

grave infirmity so as to exercise discretion by this Court and grant leave

to the petitioner.

15. No other grounds have been raised by the petitioners seeking

leave against the judgment of the trial Court dated 2nd January, 2010

acquitting all the respondents 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 of some stretch

of arguments some other view may also be probable or possible view,

would not justify any interference by this appellate Court in the present

facts and circumstances of the case. Therefore, the petition seeking

leave to appeal is dismissed and leave is declined.

ANIL KUMAR, J.

SURESH KAIT, J.

JULY 27, 2010 'k'