State vs Deepak & Ors.
2010 Latest Caselaw 5349 Del

    *             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           Crl. L.P. No. 393/2010

%                        Date of Decision: 25.11.2010

State                                                     .... Petitioner
                        Through Ms. Richa Kapoor, APP

                                  Versus

Deepak & 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 be            YES
        allowed to see the judgment?
2.      To be referred to the reporter or not?               NO
3.      Whether the judgment should be reported in           NO
        the Digest?


ANIL KUMAR, J.

*

Crl. M.A. No. 16685/2010

Allowed subject to just exceptions.

Crl. M.A. No. 16684/2010

This is an application by the petitioner under Section 5 of the

Limitation Act seeking condonation of delay of 123 days in filing the

petition for leave to appeal.

The applicant/petitioner has contended that this judgment was

pronounced on 26th February, 2010, however, the copy was applied on

3rd August, 2010 and the copy was prepared on 6th August, 2010. The

applicant has also given the details as to when the file was sent to

different officials for seeking approval for filing the petition for leave to

appeal which ultimately led to a delay of 123 days.

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 day's 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.

In the circumstances, the petitioner/applicant has been able to

make out sufficient cause for condonation of delay of 123 days in filing

the petition seeking leave to appeal.

The application is, therefore, allowed and delay of 123 days in

filing the petition seeking leave to appeal is condoned.

Crl. L.P. 393/2010

The petitioner has sought leave to appeal against the order dated

26th February, 2010 holding that the prosecution has failed to establish

the charge under Section 304-B, 498-A and 34 of IPC in Sessions Case

No. 14/2008 arising out of FIR No. 172/2007, PS RMD acquitting all

the accused persons.

The brief facts as propounded by the prosecution are that

respondent No. 1 Mr. Deepak is the husband of the deceased Poonam,

whereas Mr. Naresh Kumar and Mrs. Santosh are the father-in-law and

mother-in-law of the deceased and respondent Ms. Jaishree and Ms.

Pooja are the sisters-in-law of the deceased, who committed suicide on

Railway Track between Railway Station Samay Pur Badli and Holambi

Kalan, Delhi and died in other than normal circumstances within seven

years of her marriage and soon before her death she was subjected to

cruelty and harassment on account of demand for dowry by all the

accused persons.

The charges under Section 498-A, 304-B and 34 of IPC were

framed against all the accused. However, they pleaded not guilty and

claimed trial. The prosecution had examined 15 witnesses including

brothers of the deceased and her sister Ms. Sunita, PW-13. The

statements under Section 313 of Cr.P.C. of all the accused persons were

recorded, where they controverted the entire evidence against them and

contended that they have been falsely implicated in the case. The

accused also led the evidence in their defence and examined Mr.

Ramesh Yadav, DW-1 and Mr. Dharamraj, DW-2, their neighbours and

Mr. Nitin Kumar, DW-3, nephew of the accused Naresh Kumar.

From the evidence on record, the Trial Court noted that PW-1 had

been informed on 6th October, 2007 that a woman had been run over by

train No. 2HNK, (Kurukshetra to Hazrat Nizamuddin) at about 9:20 AM

at kilometer 14/16 between Holambi Kalan to Badli, near Down Home

Signal and her dead body was lying between the tracks. The driver of

the train, PW-2, had also deposed that at about 9:15 AM a woman aged

about 25-30 years came all of a sudden in front of the train and lay on

the track. Seeing her he blew the horn and applied the break but he

could not succeed in stopping the train and she was run over.

From the statement of PW-5, elder brother of the deceased

Poonam and PW-6 Pravin Kumar, who is also brother of the deceased,

the Trial Court inferred that there is no evidence regarding the demand

of dowry prior to marriage and subsequent to marriage. The

improvements made by the said two witnesses from their statements

before the police and SDM were noted and it has been inferred that the

prosecution has failed to establish the demand on the part of the

accused/respondent.

The Trial Court also relied on the fact that after the suicide by the

deceased by coming in front of the train, accused, i.e., the husband of

deceased had performed the last rites of the deceased at her native

village in presence of her parents. On the basis of the testimony of the

witnesses, it has also been inferred that the prosecution has not been

able to establish that the deceased was treated with cruelty or was

harassed on account of demand for dowry and disbelieved the

testimony of PW-13 Smt. Sunita and PW-11 Mr. Shish Pal and held that

they are planted witnesses. Though, PW-13 had deposed that three

days before the suicide, on 3rd October, 2007, she had visited her sister

when she observed that her sister was beaten up by her family. It has

been noticed from her testimony that before her visit on 3rd October,

2007, she had never visited her sister earlier and she did not even know

the name of the father-in-law and mother-in-law of her deceased sister.

According to her, the amount of Rs.50,000/- as dowry was demanded,

however, strangely neither she informed her brother on coming to know

that her sister was allegedly beaten on 3rd October, 2007, nor on the

fateful day was this fact raised when the deceased's family was

intimated about the deceased missing from the matrimonial home and

efforts were made to locate her. The sister did not intimate the

mediator, Mr. Ramphal, who had not even been examined by the

prosecution.

The Trial Court also relied on the facts that PW-5 and PW-6 also

did not depose that PW-13, Sister Sunita had intimated them that she

had visited the deceased and that she was told that her husband had

beaten her on account of demand of Rs. 50,000/-. Except the solitary

statement of PW-13 based on her alleged visit three days prior to

suicide, there is no specific averment about the harassment or cruelty

by any of the witnesses and the allegations are omnibus and generic in

nature. The Trial Court has noticed that no complaints were made

either by the deceased or her family regarding the demands of dowry

and found it unbelievable that from the date of marriage up until the

birth of the child to the deceased, admittedly, there was no demand for

dowry and thereafter the alleged demands started.

The inconsistencies between the statements of elder brother Arun

Kumar, PW-5 and another brother Pravin Kumar, PW-6 have also been

considered to infer that there had not been any demand for dowry and

that the prosecution has failed to establish the amounts as claimed

were given by the brothers. The father of the deceased was a barber till

2001. The brother Arun Kumar had deposed that he had an amount of

Rs.1.5 lacs with him and the remaining amount was taken by him from

his brother Pravin Kumar, PW-6 and the amount of Rs.2,05,000/- was

given allegedly at the time of the birth of the son to the deceased.

However, PW-6 Sh. Pravin Kumar had stated that an amount of Rs.4

lacs was taken as a loan and he had not given any amount to his

brother. Mr. Arun Kumar, PW-5 did not produce any document on the

basis of which it could be established that he had taken the loan for

allegedly giving the amount to the accused or that he had the amount

with him as claimed by him, which could be given by him to the

accused.

The reasons which prevailed with the Trial Court are the inherent

inconsistencies between the statement of two brothers PW-5 & PW-6

about alleged amounts given to the accused and the deceased sister; no

complaints made against the accused by the family members of the

deceased or by the deceased herself to anyone including an uncle living

near the matrimonial home of the deceased and Mr. Ramphal, the

mediator; non examination of the uncle living near the matrimonial

house of the deceased and the mediator Ramphal; the sister PW-13,

namely, Sunita not informing anyone about the deceased telling her

that she was beaten up and an amount of Rs.50,000/- was demanded

by the deceased; the last rites of the deceased being performed at the

native village of the deceased in the presence of her parents and that

even the deceased had never revealed the alleged problems faced by her

either to her parents or her sister or her brother or uncle or mediator

and the allegations of alleged cruelty and harassment being omnibus

and generic without any details and manner of cruelty.

The Trial Court has also considered in detail, connotation of

'dowry' as expounded by the Supreme Court in Appasaheb and Anr. Vs.

State of Maharashtra, AIR 2007 SC 763 and Satvir Singh & Ors. Vs.

State of Punjab and Anr., 2001 (4) Crimes 45 and came to the inference

that there was no demand for dowry as contemplated under Section 2 of

the Dowry Prohibition Act.

This Court has heard the learned counsel for the petitioner in

detail seeking leave to appeal against the judgment dated 26th February,

2010, acquitting all the respondents/accused of charges under Section

304B, 498A and 34 of IPC. This Court has also gone through the

testimony of relevant witnesses from the Trial Court record, which was

called for and the relevant documents.

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 demeanor 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.

The learned additional public prosecutor Ms. Kapoor, has

emphasized that the Trial Court has passed the order mechanically as

in para 37 it has been held by the Trial Court that the marriage was five

years old whereas the deceased Poonam had got married on 6th

February, 2006 and had committed suicide on 6th October, 2007.

Apparently, it is a typographical mistake and on the basis of which, it

cannot be held that the findings of the Trial Court are perverse or

unsustainable. The Trial Court has also noted that the deceased had

got married on 6th February, 2006 and had committed suicide on 6th

October, 2007. Taking the observations made by the Trial Court in the

judgment, it is apparent that the observation that the marriage is five

years old is only a typographical mistake, which, however, would not

entitle the petitioner for leave to appeal.

The learned counsel for the petitioner also contended very

vehemently that the observation of the Trial Court that the deceased

was cremated in her native village by the accused in the presence of her

parents is not correct. The learned counsel, however, was unable to

show from the evidence from the record of the Trial Court that the said

observation or finding of the Trial Court is not based on evidence or is

not sustainable. It has not been shown by the learned counsel that the

parents of the deceased had not been present at the time of her funeral

in the native village where the deceased was cremated by the

husband/accused. If PW-13 had visited the deceased on 3rd October,

2007, she would have told her parents about the alleged demand of

dowry which allegedly led to suicide by the deceased and in that case,

the relative of the deceased would not have allowed the accused to

perform last rites, cremation of the deceased in her native village.

On the basis of the evidence on record, the Trial Court has taken

a view that PW-11 and PW-13 are planted witnesses and has not relied

on them. This is no more res integra that if a view taken by the Trial

Court on the basis of testimony of the witnesses, which Court also has

an advantage of observing the demeanor of the witnesses, the possible

view taken by the Trial Court is not to be substituted by the Appellate

Court even if another view is possible. This Court, however, on perusing

the testimonies of witnesses PW- 5 & 6, brothers of the deceased and

PW-13, sister of the deceased and PW-11 is of the opinion that there is

no perversity in the finding of the trial Court nor the inferences taken

by the Trial Court can be termed to be unsustainable.

Ms. Kapoor, the learned Addl. Public Prosecutor also emphatically

insisted that PW-13 had told about her visit to her brothers PW-5 &

PW-6 and they have deposed about it. However, perusal of the

testimonies of these two witnesses from the record of the trial Court it is

apparent that these two witnesses have not deposed anything about the

alleged visit of PW-13 on 3rd October, 2007 to the deceased. Had she

visited the matrimonial house of the deceased, she would have definitely

communicated as to what had transpired there as had been alleged by

her. In the circumstances the finding of the trial Court that PW-11 and

PW-13 are planted witnesses cannot be faulted nor can be termed to be

unsustainable or perverse nor are there any grounds to grant leave to

the petitioner against the impugned judgment.

No other plea has been raised by the learned counsel for the

petitioner seeking leave to appeal against the order of acquittal. No

grounds have been made out by the petitioner to grant leave to appeal

and in the facts and circumstances the findings of the trial Court

cannot be termed to be illegal, unsustainable or perverse.

In the totality of facts and circumstances, there are no grounds to

grant leave to appeal to the petitioner. Therefore, the petition to grant

leave to the petitioner is without any merit and it is dismissed.

ANIL KUMAR, J.

NOVEMBER 25,2010                                S.L. BHAYANA, J.
'rs'