Ram Kishan Dahiya vs State & Ors.
2012 Latest Caselaw 519 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                     Date of decision: 25.01.2012

+      CRL.A.837/2011, Crl. M.A. 7817/2011 (Under Section 5 of the
       Limitation Act)


       RAM KISHAN DAHIYA                          ..... Appellant
                    Through: Sh. Sudhir Naagar, Advocate.

                       versus

       STATE & ORS.                                           ..... Respondents

Through: Ms. Richa Kapoor, APP.

Sh. Avadh Kaushik, Advocate, for Resp. Nos. 2 to

SI Surender, P.S. Kanjhawala.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE S.P.GARG

MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)

%

Crl. M.A. 7817/2011 (Under Section 5 of the Limitation Act) Issue notice.

Ms. Richa Kapoor, APP accepts notice on behalf of the State/respondent and Sh. Avadh Kaushik, Advocate accepts notice on behalf of Respondent Nos. 2 to 6.

There is a delay of 42 days in filing the appeal. They have no objection to the condonation of delay. The delay is accordingly condoned for

Crl.A. 837/2011 & Crl. M.A. 7817/2011 Page 1 the reasons as mentioned in the application. The application, CRL. M.A. 7817/2011 stands disposed of accordingly.

CRL.A.837/2011

1. This appeal, under Section 372, Criminal Procedure, by the complainant, challenges an order of acquittal made by the learned Additional Sessions Judge, in SC No. 242/2010, dated 28-03-2011, whereby the respondents (hereafter called "the accused") were held not guilty for committing the offences punishable under Sections 498-A/304-B/34 IPC. This court had issued notice to the respondents; they are represented today by counsel. With consent of counsel for all the parties, the court heard the appeal today.

2. The prosecution allegations are that Sweety, the wife of the first respondent (Narender, referred to by name) died an unnatural death in the early hours of the morning of 13-07-2008. Intimation of this was received, by the concerned police station at 07:00 AM. The police went to the spot and found that death was caused by hanging. The statements of the deceased's parents were recorded the next day, by the SDM. They alleged that the accused, including Narender used to treat her cruelly, and sometimes beat her. The deceased's parents deposed as PW-3 and PW-7 during the trial. They alleged that the accused used to make frequent demands for dowry, and often would beat the deceased. It was also stated that the marriage of the couple had taken place on 29-04-2004; the alleged acts of cruelty persisted for a long time. After the first child, a son was born to the deceased, and she stayed with her parents for about one and a half years, till Narender took her back to the matrimonial home. It was alleged that the deceased called her

Crl.A. 837/2011 & Crl. M.A. 7817/2011 Page 2 parents on telephone, at around 05:00 AM and told her about repeated beatings. Later, they received news of her death.

3. After conclusion of investigations, the accused were charged; they denied guilt, and claimed trial. The prosecution relied on the testimony of 19 witnesses, and several exhibits. After considering these, and the submissions of parties, the Trial Court concluded that the prosecution could not establish the respondent accused's guilt.

4. This appeal was preferred by the deceased's father, under Section 372, Cr. PC. It was urged that the Trial Court fell into error in holding that the prosecution did not prove the respondent's guilt. Learned counsel heavily relied on the testimony of the doctor who conducted the postmortem, as well as the post mortem report, and stated that the allegations of cruelty just before the death of Sweety were corroborated by the medical evidence. It was also submitted that the Trial court ignored this aspect, and also overlooked the testimonies of PW-3 and PW-7 about having received a call early morning, from their daughter, which was corroborated by the call details, proved by PW-11, an independent witness, and officer of TATA Teleservices. He supported the prosecution story, and call details which were produced as PW-11/D. The prosecution also established that the calls were made from the mobile phone of Surender, the fifth accused, by producing PW-11/A and PW-11/B. In these circumstances, the accused had to explain their role. Instead, they clearly admitted, as was evident from the line of questioning (of PW-3 and PW-7) during cross examination, when it was clearly suggested that Sweety was beaten for not co-operating and refusing to do household chores.

Crl.A. 837/2011 & Crl. M.A. 7817/2011 Page 3

5. Learned counsel for the accused on the other hand submitted that having regard to the well-settled parameters that High Courts are to apply while considering appeals against acquittals, the impugned judgement does not warrant interference. It was submitted further that the Trial Court acted in accordance with law in acquitting the respondents. It was submitted that to prove that an accused is guilty for committing the offence punishable under Section 304-B, IPC, not only is it necessary that the death should have occurred within seven years of marriage; two other ingredients have to be proved beyond reasonable doubt. These are that the deceased was treated with cruelty and that such cruelty should be in connection with dowry demand. In either case the cruelty and the demand for dowry should be shown before the death. In the present case the Trial Court was justified in holding that no demand for dowry had been proved. The evidence led by the prosecution was sketchy and vague. Neither was dowry demand proved nor was cruelty established, with any specificity. Learned counsel further argued that even though intimation about the death was given to the deceased's parents at the earliest possible time, the police did not record their statements the same day and instead they were recorded under Section 161, Criminal Procedure Code on the next day, i.e. 14-07-2008. By this time it was possible for the prosecution witnesses to be tutored and to manipulate entire sequence of events to suit their story.

6. We have considered the submissions of parties and have also gone through the Trial Court records. A striking feature in this case is that the post-mortem of the dead body was conducted on 14-07-08. The post-mortem report, EX-17/A listed four injuries. Thes were: an abrasion on the wrist,

Crl.A. 837/2011 & Crl. M.A. 7817/2011 Page 4 swelling of the upper lip; abrasion over the gluteal region; and an abrasion of the face. The cause of death, according to the doctor PW- 17 was hanging. The post-mortem report itself did not give the final opinion for the death. The police suspected poisoning. However, the viscera report ruled out the possibility; the final report confirming the cause of death was produced as EX 17/B. The Trial Court did not investigate the four injuries found on the deceased other than the ligature which resulted in asphyxiation which was the cause for her death. This Court notices that even under Section 313, Criminal Procedure Code no query directing the specific attention of the accused and seeking their response or explanation for these injuries, was made. We are of the opinion that this aspect was of vital importance, in a case like the present one where the charge against the accused was for indulging in cruel behaviour against the deceased, soon before her death.

7. In addition to these aspects, and other vital evidence which in our opinion received inadequate attention by the Trial Court was the call details particulars deposed to by PW- 11. He was the Nodal officer summoned from the concerned service provider. The documents brought on record through his evidence pointed to the fact that mobile phone connection bearing number 921 031 3158 was registered in favour of the appellant; mobile phone number 9250433244 was registered in the name of accused Surender, brother of the first respondent. These documents also showed that two calls had been made from Surender's phone to the appellant's phone in the early hours of the morning of the date of the incident, just before 05:00 AM. Furthermore the counsel for the accused appeared to have suggested to PW- 07 during the cross-examination that the husband, i.e. the first respondent,

Crl.A. 837/2011 & Crl. M.A. 7817/2011 Page 5 had at 04:30 AM in the morning of the incident, asked the deceased to serve fodder to the animals which she refused. Similarly the suggestion given in cross-examination to PW-3 was that at 04:30 AM the first respondent asked the deceased to serve fodder to the buffaloes and that upon her refusal, he forcibly made her stand on the cot to provide fodder to the buffaloes.

8. The Trial Court in our opinion fell into error in ignoring the above material evidence. It appears to have focused its intention primarily on the delay in recording the statements of PW-3 and PW- 07. Although that aspect also is an important one which should weigh with the court, at the same time one cannot belittle the fact that death occurred four years after the marriage between the deceased and the first respondent. Cruelty on account of dowry is an essential ingredient which the prosecution has to undoubtedly prove to establish the offence under Section 304-B IPC. In this case, the accused had also been charged under Section 498-A, IPC. The Trial Court's failure to analyse the impact of the documents produced by PW- 11, put it to the accused under section 313, and also its failure to analyse the impact of the four injuries found on the deceased body (apart from the fatal ligature injury) and put that circumstance to the accused under Section 313, in our opinion points to grave infirmity on its part.

9. While on the subject, it would not be out of place to mention that there may often be cases where the prosecution may not establish the ingredients necessary to convict the accused under Section 304-B, especially when dowry demand soon before the death cannot be proved. Yet conviction may be warranted if the facts necessary to prove the offence punishable under Section 498-A IPC are proved (as for instance, in Akula Ravinder and

Crl.A. 837/2011 & Crl. M.A. 7817/2011 Page 6 others v. State of Andhra Pradesh AIR 1991 SC 1142). It is also possible that in some given cases, even if the charge under Section 304B is not established, there could be evidence of such cruel behaviour as could have compelled the deceased to commit suicide in which case the offence punishable under Section 306 IPC may be proved. In some decisions, (notably, K. Prema S. Rao and Anr. vs. Yadla Srinivasa Rao and Ors, 2003 (1) SCC 217 and Kaliyaperumal & Anr. vs State of Tamil Nadu AIR 2003 SC 3828) it was held that even an absence of specific charge under Section 306 would not prevent the court from convicting the accused, if there is material on record. We however would desist from any further comment on this aspect in view of the course of action that is proposed. This is essential because apart from the charge under section 306 not having been put to the accused, even on facts, they were not queried about certain materially incriminating circumstances. These included absence of any query seeking their explanation for the telephone calls made from Surender's phone to the appellant's mobile phone early morning on 13-07-2008; lack of any query with regard to the four injuries which were not the cause of death.

10. In view of the above discussion, this Court is of the opinion that the impugned judgment discloses fundamental errors in regard to appreciation of evidence as well as the fact that materially incriminating questions were not put to the accused after the prosecution evidence had been led. We therefore, set aside the impugned judgment and order of the Trial Court and remit the matter for it to enable putting the necessary incriminating circumstances to the accused, under Section 313, Criminal Procedure Code. The Trial Court is also directed to consider whether from the records an additional or

Crl.A. 837/2011 & Crl. M.A. 7817/2011 Page 7 alternative charge under Section 306 IPC has to be framed against any or all of the accused after considering the materials on record and also hearing counsels for the parties. In the event any such charges are framed, it is open to the respondents to seek recall of such of the prosecution witnesses they wish to cross examine. The Trial Court is further directed to proceed with the matter and render its findings with the utmost expedition and in any event within four months from today; nothing, however stated in this order shall be considered as an expression on the merits of the case, or precluding any defence or argument of any party during the trial.

11. The Trial Court shall ensure and take appropriate measures to secure the presence of the accused during the pendency of proceedings before it. The parties are directed to be present before the Trial Court on 15th February 2012. The Registry is directed to transmit the records of this case as well as the lower court records back to the Trial Court forthwith to ensure due compliance with the directions contained in this judgment. The appeal and all pending applications are disposed of in the above terms.

12. Order Dasti, under signatures of the Court master.

S. RAVINDRA BHAT (JUDGE)

S.P.GARG (JUDGE) JANUARY 25, 2012

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