Mahesh Kumar And Ors. vs State
2013 Latest Caselaw 3071 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+                             CRL.A. 216/2003

%                                           Reserved on: 13th May, 2013
                                            Decided on: 19th July, 2013
MAHESH KUMAR AND ORS.                                       ..... Appellants
                Through:                 Mr. M.L. Yadav, Advocate with
                                         Appellant in person.

                              versus

STATE                                                     ..... Respondent

Through: Mr. Manoj Ohri, APP for the State.

CORAM:

HON'BLE MS. JUSTICE MUKTA GUPTA

1. The Appellants, who are the husband, mother-in-law and father-in-law

of the deceased Ritu, lay a challenge to the judgment dated 4th April, 2003

whereby they have been convicted for offences under Sections 498A/304B

IPC and the order on sentence dated 4th April, 2003 directing them to

undergo Rigorous Imprisonment for seven years each and to pay a fine of

Rs. 1,000/- each and in default of payment of fine to undergo Simple

Imprisonment for a period of 15 days under Section 304B IPC. For offence

under Section 498A IPC they have been directed to undergo Rigorous

Imprisonment for three years each and to pay a fine of Rs. 1,000/- each and

in default of payment of fine to undergo Simple Imprisonment for a period

of 15 days.

2. Learned counsel for the Appellants contends that the FIR was

registered belatedly. On the date of incident, that is, 26th September, 1998

statements of brother, father and mother of the deceased were recorded by

the SDM vide Ex. PW1/DA, PW2/DB and PW2/DA wherein they stated that

they had no grievance against the Appellants or his family members.

However, as an after thought on 2nd October, 1998 on the statement of the

mother of the deceased FIR No. 783/1998 was registered against the

Appellants and their family members. On the same set of evidence the other

family members have been acquitted, however, the Appellants have been

convicted. PW1, Mahesh Chand, the brother of the deceased stated before

the Court that there was no demand for 1½ months after marriage. PW2

Ram Dass, the father of the deceased also did not level any allegation of

harassment in relation to the demand of dowry soon before death. The

learned Trial Court relied upon the hearsay evidence as dying declaration.

Relying upon Gananath Pattnaik vs. State of Orissa, 2002 (1) JCC 430 SC

and Goverdhan vs. State of Madhya Pradesh, 2007 (3) Crimes 246 it is

stated that these hearsay evidences cannot be used for convicting the

Appellants. Conviction is based on the assumption that normally demands

are by husband and in laws and not by other members of the family. Thus

the learned Trial Court wrongly convicted the Appellants.

3. Learned APP for the State on the other hand contends that the

marriage between the Appellant No. 1 and the deceased survived only for

four months and thus the allegations of harassment caused during this period

would qualify the test of harassment soon before the death. In Uday

Chakraborty vs. State of West Bengal, AIR 2010 SC 3506 the Hon'ble

Supreme Court held that even a period of two years was too short a time and

would fall within the ambit of soon before death. In Devinder Singh and

others vs. State of Punjab, 2005 (12) SCC 104 it was held that in the absence

of statement of the deceased, the statement of the parents of the deceased as

to what deceased stated to them would be relevant. PW1 and PW2 clearly

stated about the harassment in relation to the demand of dowry and the

witnesses did not admit their signatures on the statements made to the SDM.

Further Ex. PW1/DA was only a photocopy of the application which gave

even the wrong date of marriage. The original of Ex. PW2/DB was not

produced in the Court and the document did not indicate as to whom the

same was addressed. The father of the deceased was not cross-examined

with respect to these documents and he stated that Ex. PW2/DB did not bear

his signatures. No one deposed before the Court that Ex. PW2/DB was

signed or written by PW2. Similarly Ex. PW2/DA was also stated to be not

the statement of PW2 and the witness was not confronted with the statement

made therein. PW1 Mahesh Chand admitted that Ex.PW1/DA bore his

signature however he stated that this statement was made at the time when

they were informed that their sister died due to electric shock. In view of

the explanation by the brother, the FIR cannot be said to be belatedly

registered thereby affecting the prosecution case. The testimony of the

witnesses on record proves the case of the prosecution beyond reasonable

doubt and the appeal be thus dismissed.

4. I have heard learned counsel for the parties.

5. FIR No. 783/1998 was registered under Sections 498A/304B IPC at

PS Ambedkar Nagar, Delhi on the statement of the mother of the deceased.

However, this witness could not be examined in the Court as she died before

her examination. Consequently, the two witnesses produced by the

prosecution in support of their case were PW1 Mahesh Chand, brother of the

deceased and PW2 Ram Dass, father of the deceased.

6. PW1, Mahesh Chand stated in his examination-in-chief that his sister

got married on 27th May, 1998. They gave dowry articles in the marriage

beyond their capacity but the in-laws of Ritu were not satisfied with the

articles. The accused used to harass Ritu for not bringing sufficient dowry

after the marriage. They used to beat her. After 2½ months of marriage, at

the time of Raksha Bandhan accused Sanjay, Mahesh, Sachin, Rahul and

Smt. Santosh came to their house and demanded a sum of Rs. 50,000/- and a

scooter. Thereafter he along with his parents went to the house of Mahesh

and asked accused Meena and Anokhe Lal as to why they were demanding

Rs. 50,000/- and a scooter, on which they stated that they will have to give

Rs. 50,000/- and scooter as they did not give sufficient dowry in the

marriage. On 26th September, 1998 one Raju informed on telephone

installed in the neighbourhood that Ritu got electric shock. In cross-

examination this witness admitted that he made no allegation against the

accused in his statement Ex. PW1/DA as he was informed that his sister died

because of electric shock. He further stated that he did not state to the police

in his statement that the accused persons used to beat her. He further

admitted that he did not state to the police that after 2½ months of the

marriage of his sister the accused Sanjay, Mahesh, Sachin, Rahul and Smt.

Santosh came to their house on Raksha Bandhan and demanded Rs. 50,000/-

and a scooter. He further admitted that the settlement of dowry articles was

not made at the time of marriage between them and the accused person. In

cross-examination this witness further admitted that after three days of

marriage his sister came back to their house and stayed there for about 1 ½

months and during that period there was no demand of dowry from the side

of the Appellants. He further stated that his sister told 2½ months before her

death that the accused persons started demanding dowry and he admitted that

this fact he did not state to the police in his statement under Section 161

Cr.P.C.

7. PW2 Ram Dass, father of the deceased also stated that after the

marriage Ritu told them that her husband and her in-laws were not happy

with the marriage and they were harassing her for not bringing dowry. They

had given dowry articles to Ritu beyond their capacity but her in-laws were

not happy. He further stated that the accused person also demanded Rs.

50,000/- and a scooter but he could not give this amount demanded by them.

On 26th September, 1998 an information was received by them on telephone

installed in neighbourhood that Ritu received an electric shock. According

to him all accused person were responsible for the death of his daughter as

they used to harass her for not bringing sufficient dowry. PW2 in his cross-

examination admitted that his statement was recorded in police station by the

police however he denied his signatures on Ex. PW2/DA and Ex. PW2/DB

but stated that they were similar to his signatures. He further stated that he

could not definitely state whether the signatures were his. He also admitted

that after three-four days of marriage his daughter came back to their house

and stayed for one month. During that period his daughter told his wife and

him that the mother-in-law used to give her beatings and asked for more

dowry. He admitted that he had not made any such statement before the

police under Section 161 Cr.P.C.

8. A perusal of the testimony of these witnesses clearly shows that

whatever they stated in their examination-in-chief were improvements from

their statements made to the Police. Since the statements of the witnesses

are improvements from their earlier statement, they are required to be looked

into with greater caution. The only allegation against the Appellants is

demand of Rs.50,000/- and a scooter. PW1 in his examination in chief

stated that after 2 ½ month of her marriage at the time of Rakshabandhan

accused Sanjay, Mahesh, Sachin, Rahul and Smt. Santosh came to their

house and demanded a sum of Rs.50,000/- and a scooter and thereafter PW1

and PW2 went to house of the deceased and asked about the demand. In

cross-examination PW1 was confronted with his statement recorded by the

Police under Section 161 Cr.P.C. on 2nd October, 1998 where this fact is not

recorded. Thus this is a clear improvement even from the statement recorded

under Section 161 Cr.P.C. belatedly. Further this fact is not deposed by

PW2, the father of the deceased. PW2 has stated that during this 1 ½ month

his daughter told that her mother-in-law used to give her beatings and asked

for more dowry. It may be noted that deceased live only for 3 days in the

matrimonial home before coming back to her parent's home and lived there

for 1½ months. There is no averment either by PW1 or PW2 as to when in

these 3 days after marriage the deceased was beaten by her month-in-law.

Rather PW1 has stated that there was no demand by the in-laws till the

deceased stayed in their house. There is no doubt that the family members

of the deceased are not in proper frame of mind immediately after the death

of their daughter to give complete statement and the Courts cannot adopt a

hyper technical approach that since the statement made under Section 161

Cr.P.C. did not include the allegations, the statements before the Court are a

clear improvement, however even ignoring the delayed statements there are

material contradictions in the statements of two witnesses as deposed to in

the Court.

9. In view of these material improvements and there being no specific

allegations against the Appellants, it would be unsafe to base the conviction

on the evidence on record. For the aforesaid reason the impugned judgment

and order on sentence are set aside. The Appellants are acquitted of the

charges framed. The appeal is accordingly disposed of. The bail bond and

the surety bond are discharged.

(MUKTA GUPTA) JUDGE JULY 19, 2013 'vn'