Delhi High Court

State vs Sh.Ravi Singh & Ors. on 11 November, 2010

Author: Anil Kumar

*                    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                               Crl.L.P. No.332/2010


%                           Date of Decision: 11.11.2010

State                                                        .... Petitioner
                          Through Mr.Lovkesh Sawhney, APP.

                                       Versus

Sh.Ravi Singh & Ors.                                       .... Respondents
                   Through Nemo.

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

1.         Whether reporters of Local papers may             YES
           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.15002/2010

Allowed subject to all just exceptions.

Application is disposed of.

CRL.M.A.No.15004/2010

This is an application under Section 5 of the Limitation Act, 1963

seeking condonation of delay in filing the petition seeking leave to

appeal.

The applicant has contended that the delay of 78 days occurred

on account of the file being put up before different officials details of

which are given in the application.

For the reasons stated in the application there is sufficient cause

to condone the delay.

Therefore, the application is allowed and delay in filing the

petition for leave to appeal is condoned.

Crl.L.P.No.332/2010

The petitioner has filed the abovenoted petition for leave to appeal

against the order dated 11th February, 2010 convicting the respondent

No.1 under Section 498-A of Indian Penal Code and sentencing him to

undergo RI for a period of three years and a fine of Rs.2000/- and in

default to further undergo rigorous imprisonment for six months,

however, acquitting respondent Nos.2 to 4 under Section 498-A of IPC

and acquitting all the respondents under Section 304-B of Indian Penal

Code by order of dated 11th February, 2010 and order dated 15th

February, 2010 sentencing respondent No.1 in Sessions Case

No.31/2007 titled State v. Ravi Singh and Ors arising out of FIR

No.14/2007 under Section 498-A/304-B/34 of Indian Penal Code Police

Station Sangam Vihar.

The brief facts of the case of the prosecution are that Mamta, wife

of Ravi Singh, respondent No.1 was married to him on 12th December,

2005 in accordance of Hindu rites at Sangam Vihar. It was alleged that

within a month of the marriage, the in-laws of Mamta i.e the husband

Ravi, father-in-law Ram Singh, mother in law Nirmlesh and Madhu

Chachiya Saas (aunt of husband), had started harassing the deceased

on account of dowry and they used to physically assault her and use

abusive language against her. Her in-laws had been pressurized her to

bring Rs 50,000/- in cash and a motorcycle, which created a lot of

tension in the house. A complaint was even made to the Crime Against

Women Cell regarding demand for dowry and harassment, however,

later on the in-laws of the deceased agreed to keep her with the

assurance that she will not be tortured. Allegation was also made that

inspite of assurance deceased Mamta was again beaten and tortured. It

was further alleged that fearing for her life Mamta ran away from her

matrimonial home and came to her a parent's house. On the

intervening night of 6th and 7th January 2005, Ravi the husband of

deceased came to his in-laws house and he stayed in the house of the

parents of Mamta. In the morning Mamta was found hanging from a rod

in the roof of a room and had died by the time she was brought down.

There was no one in the room except Mamta and according to Jyoti,

sister of the deceased two persons were seen going out of the room.

Pursuant to DD No. 5 A which was exhibited as Ex PW7/A

recorded at 8:15 a.m. on 7th January 2007, at PS Sangam Vihar, SI

Balbir Singh, PW16 and Ct Subhash reached the place of incident

which was residential house K-1/18C/43 and there the body of the

deceased victim Mamta was found which was hanging by a Ligature

(sari) from the pipe in the roof of a room. Since the death of the victim

was within 7 years of marriage and it was under unnatural

circumstances, the SDM of the area Sh. Tirlok Sharma, PW-10 was

apprised about the situation. Photographs of the site were taken by a

crime team and the body was removed to AIIMS Hospital by ambulance.

Relevant articles including saree, which was ligature was seized. The

Executive Magistrate had recorded the statement of Rajesh Kumar PW-

3 and Kishan Devi PW-1, proved as Ex. PW1/A and Ex PW 3/C and on

the direction of the Executive Magistrate, the FIR was registered as the

case of dowry death and cruelty. On the same day accused persons Ravi

and his father were arrested from their house.

According to the prosecution the victim deceased Mamta

committed suicide as a result of the continuous cruelty and torture

inflicted on her by the accused on account of demand of dowry.

Respondent No.2 is the father-in-law; respondent No.3 is the mother-in-

law and respondent No.4 is the aunt of the husband of the deceased.

All the accused/respondents were put on trial under Section 498-

A and 304-B/34 of IPC and an alternate charge under Section 302 of

IPC was also framed against respondent No.1.

The respondents had not pleaded guilty and had claimed trial and

during the trial the prosecution examined 18 witnesses. The statements

of the accused under Section 313 of the Criminal Procedure Code was

also recorded and the accused examined 2 witnesses in their defence,

and accused Ram Singh appeared in person to depose his defence on

oath as DW-3.

This cannot be disputed that 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.

This is also settled law 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 allegations against the accused were that they were

demanding a motorcycle and an amount of Rs.50,000/- as dowry and

for the demands raised by the accused the deceased Mamta was

subjected to torture and cruelty. The body of the deceased namely

Mamta was found hanging by a ligature (sari) from the pipe in the roof

of a room of her parents and since she had died within seven years of

marriage and her death was under unnatural circumstances, therefore,

presumption under Section 113-B was invoked against the accused.

The trial Court after considering the evidence had observed on the

basis the post mortem report Ex. PW13/A that the death was on

account of asphyxia as a result of hanging by a ligature and no other

kind of external injury mark was noticed on her body. In fact PW 13,

Dr. Chitranjan Behra, who conducted the post mortem, deposed that

there is a difference between death due to hanging and death due to

strangulation. Injury in a case of death by strangulation would be of a

different kind as that of death by hanging. SI Balbir Singh, PW-16 had

deposed that on receiving DD No. 5 vide Ex. PW-7/A he reached the

spot immediately and saw that there was a single bed in the room

where the deceased was found hanging along with a one foot paddle

sewing machine lying adjacent to the bed, which he admitted could

have been used by the deceased in committing suicide. He had also not

found any other apparent injury mark on the body of the deceased so as

to reflect any struggle or resistance by the deceased.

The trial Court took into consideration a complaint which was

filed by the deceased before the Crime Against Women Cell on 26th

September 2006, and Mamta's statement was also recorded on 3rd

October 2006, however, on 1st December, 2006 the deceased had

agreed to go back to her matrimonial home with her husband

respondent No.1. The respondents had pointed out to the trial Court

that a petition for restitution of conjugal rights was filed by respondent

no.1 on, 4th July 2006 and the complaint before Crime Against Women

Cell was filed as a counter blast.

This was not disputed before the trial Court that the deceased

Mamta after coming back to her matrimonial home on 1st December,

2006 had gone to her parents house on 9th December, 2006 for

participating in the birthday celebrations of her brother's son and the

respondent No.1 accused had himself taken her to her parent's house

and then had returned back. This evidence was considered to negate

the allegation that the deceased was turned out of the matrimonial

home as this was not denied that the respondent no.1 had accompanied

her to her parents house and other factors which were noticed by the

trial Court. The learned additional public prosecutor has not shown any

evidence on the basis of which it can be inferred that the deceased was

turned out of the matrimonial home after she had gone while the

petition for restitution of conjugal rights filed by the respondent no.1

and the complaint filed by the deceased was pending.

The trial Court has further held that from the testimony recorded

before the trial Court that the father of the deceased was a Mason and

had passed away 5-6 months after the marriage. It was further inferred

that the demand for an amount of 50,000 and a motorcycle knowing

very well the poor financial condition of the family defied any logic in

the facts and circumstances and the evidence led on record. The

respondents had denied that they had made the demands for

Rs.50,000/- and a motorcycle. The respondent no.1 also denied his

presence in the matrimonial home on the night of 6th January 2007. It

was contended that no particulars of harassment and cruelty had been

disclosed and the allegations were omnibus and generic in nature. It

was rather contended that instead of demanding money from the family

of the deceased, financial assistance was given to the father of the

deceased for the amount incurred by him for providing food during the

marriage ceremony as he was a poor meson and was also suffering from

cancer. It has also been held by the trial Court that in the

circumstances the allegation that the motorcycle and an amount of

Rs.50,000/- was demanded is without any cogent evidence on record.

The learned counsel for the petitioner has also not able to show any

such cogent evidence on the basis of which it can be inferred that the

demand for Rs.50,000/- or motorcycle was made by the respondents

from the family of the deceased. The respondents had also contended

that no demand was made at the time of marriage and in any case soon

before the death of the deceased on 7th January, 2007 no demand of

any type was made nor has been established. It was also contended

that after complaint before the Crime Against Women Cell and during

the pendency of petition for restitution of conjugal rights filed by the

respondent no.1, the deceased was taken back to the matrimonial home

and, therefore, there was no account of any cruelty inflicted from May,

2006 when the deceased was at the house of her parents. This has also

been held that after the deceased was taken back to the matrimonial

house till she came back to her parents house to attend the birthday

ceremony of her brother, no harassment or cruelty has been

established.

This Court has perused the trial Court record and the pleas and

contentions raised by the Learned Additional Public Prosecutor. Before

the trial Court the prosecution had not pressed the charge of murder as

there was no cogent evidence that the deceased was hanged by the

accused. No sign of any struggle or any injury was found on the body of

the deceased. The room where the deceased was found hanging also

had only one bed. Although the respondent No.1 denied that he was

present in the night of 6th and 7th January, 2007, however, the trial

Court has held that he was present in the house. The trial Court has

also noted that there was no sign or any mark of resistance of any kind

and had there been a case of deceased being hanged by anyone then

there would have been resistance by the deceased which would have

become apparent, however, since no incriminating circumstance was

found and as there was only one cot in the room where the deceased

was found hanging, therefore, merely because the deceased was held to

be present in the house it cannot be inferred that the respondent no.1

had committed the murder of the victim. Though the sister of the

deceased Jyoti, PW-2 had deposed that two more persons were seen

going out from the room where the deceased was found hanging,

however, the said allegation remained uncorroborated and could not be

established by any other evidence and, therefore, respondent No.1 has

not been convicted by the trial Court under Section 302 of IPC. The

learned counsel is also unable to show any evidence on the basis of

which it can be held that the charge under section 302 of IPC can be

made out against the respondent no.1. The learned counsel is also

unable to show any illegality or perversity in the order of the trial Court

in this regard.

Regarding the charge of 304B IPC it is no more res integra that it

must be proved that the death of the women must have been caused by

burn or bodily injury otherwise than under normal circumstances; such

death must have occurred within seven years of her marriage; the

woman must have been subjected to cruelty or harassment by her

husband or by relatives of husband and the cruelty and harassment

must be for or in connection with the demand for dowry and such

cruelty or harassment must be shown to have been meted out to the

woman soon before her death. Since it was not disputed and could not

be disputed that the death of the wife of the respondent No.1 was within

seven years of marriage and was otherwise than under normal

circumstances, therefore, two of the ingredients of Section 304B were

made out.

Regarding the demand for dowry and subjecting the deceased to

cruelty or harassment the trial Court noted that the allegations for

demand of motorcycle and Rs.50,000/- were omnibus and prosecution

witnesses failed to disclose and prove the same. Considering the

deposition of the mother of the deceased, PW-1 it is apparent that the

testimony nowhere reflects that she herself had any encounter with the

accused persons on this account nor that the alleged dowry demands

were made to her nor that the deceased complained to her mother

about any specific cruelty or harassment meted out to her. Though it

has been alleged that there were beatings or abuses, however, the

allegations are omnibus and no particulars have been given. Rather the

mother of the deceased had admitted in the cross examination that no

dowry had been demanded at the time of marriage. The mother of the

deceased also admitted in her cross examination that after the deceased

had gone back with respondent no.1 to her matrimonial house

subsequent to the submission of the petition for restitution of conjugal

rights and the complaint filed before Crime Against Women Cell,

respondent No.1 had brought the deceased to her house and her

daughter was also accompanied by the mother-in-law, respondent no.3.

At that time or thereafter it is not deposed that any complaint for

demand of dowry of Rs.50,000/- or a motorcycle was made nor any

alleged cruelty or harassment particulars were given. If the deceased

would have been treated with cruelty or harassment she would have

disclosed the particulars to her mother and even the mother-in-law

would not have accompanied the deceased to her parent's house. There

are apparent contradictions in the statement of PW-1 as she stated that

the mother-in-law of respondent No.1 had accompanied the deceased to

her house and in the cross examination she had contended that the

deceased was turned out of the house. Though she deposed that there

was a quarrel at her house, however, she specifically admitted that the

dispute was not over the dispute of demand of dowry. No complaint was

made to the women cell for the allege demand for dowry or harassment

or torture after she was taken back in the matrimonial home in

December, 2006.

In the circumstances, on the basis of the inconsistent statement

of the mother of the deceased, PW-1 the finding that the prosecution

has failed to establish that the deceased was treated with cruelty or

harassment or there had been a demand for dowry by respondent Nos.1

to 4 cannot be termed to be unsustainable or perverse in any manner.

The learned counsel for the petitioner has also failed to point out such

grounds or such evidence on the basis of which it can be inferred that

the findings of the trial Court or based on no evidence or contrary to

evidence on record.

This has not been disputed by the learned counsel that the

complaint made before the crime against Women Cell was in English

and as admitted by the witnesses, the deceased did not know or

understood English, meaning thereby that victim Mamta was not aware

of the contents of the detailed complaint presented before CAW and so it

could not be the basis to hold that she was treated with cruelty or was

harassed in the absence of any cogent corroborating evidence regarding

cruelty or harassment. The learned counsel for the petitioner cannot

dispute that such an application would not be substantive evidence for

drawing the inferences that the deceased was treated with cruelty or

harassed by the respondents. This Court has also considered the

evidence of PWs.1, 2 & 3 and on perusal of the evidence it cannot be

inferred that the deceased was treated with cruelty or that she was

harassed for the alleged demands of Rs.50,000/- and motorcycle soon

before her death on 7th January, 2007.

What is the cause for the deceased to have committed suicide in

her parental home has not been established though there is evidence

that the respondent no.1 used to consume liquor and that he had even

consumed liquor on a day prior when the deceased was found hanging

in the house of the room of her parents. There was no demand for

dowry and cruelty and harassment proximate to her death. In the

circumstances though the trial Court has held that charge under

Section 498A of Indian Penal Code has been made out against

respondent no.1, however, it cannot be held the charge under Section

304B of Indian Penal Code has been made out against all the

respondents and the finding of the trial Court that the charge u/s 304B

has not been made out against the respondents cannot be held to be

unsustainable.

                  The     respondent   No.1   has   not   appealed   against    his

conviction under Section 498A             of the Indian Penal Code and his

sentence of three years rigorous imprisonment and a fine of Rs.2000/-,

however, in absence of the other ingredients of Section 304B, it cannot

be held that the charge under Section 304B can be made out against

the respondents. The learned Additional Public Prosecutor has failed to

point out any such illegality or perversity in the order of the trial Court

which would require interference by this Court nor can it be held that

the charge under Section 304B of Indian Penal Code is made out

against the respondents. In the circumstances, there are no grounds to

grant leave to the petitioner against orders dated 11th February, 2010

acquitting the respondents of charge under section 304 B of Indian

Penal Code. The petition seeking leave to appeal in the facts and

circumstances is without any merit and it is, therefore, dismissed.