CRL.L.P./535/2015 of THE STATE ( NCT OF DELHI) Vs MANOJ & ORS

*IN THE HIGH COURT OF DELHI AT NEW DELHI+CRIMINAL LEAVE PETITION No. 535/2015%Date of decision : 4"^ February, 2016

CORAM:

HON'BLE MR. JUSTICE G. S. SISTANI

HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL

SANGITA DHINGRA SEHGAL. J. tORAI J

1. The present Criminal Leave Petition has been filed under section 378of the Code of Criminal Procedure by the State seeking leave toappeal against the impugned order dated 08.01.2015 passed by thelearned Additional Sessions Judge, Noith-East, Karkardooma Court,Delhi in Sessions Case No. 24/13.of the Code of Criminal Procedure by the State seeking leave toappeal against the impugned order dated 08.01.2015 passed by thelearned Additional Sessions Judge, Noith-East, Karkardooma Court,Delhi in Sessions Case No. 24/13.

2. The case as set up by the prosecution is that on 30.03.2013 DD No.34/A was registered at Police Station - Karawal Nagar and wasassigned to AS I Ashok Kumar who reached the spot and found ladyhanging from the ceiling fan. Concerned Station House Officer andSub Divisional Magistrate were informed about the incident. CrimeTeam reached at the spot. On the direction of Sub Divisional34/A was registered at Police Station - Karawal Nagar and wasassigned to AS I Ashok Kumar who reached the spot and found ladyhanging from the ceiling fan. Concerned Station House Officer andSub Divisional Magistrate were informed about the incident. CrimeTeam reached at the spot. On the direction of Sub Divisional

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Magistrate dead body of the deceased was sent for postmortem. Fatherof the deceased was also informed. On 31.03.2013, Sub DivisionalMagistrate recorded the statements of the parents of the deceasedwherein they held the accused persons responsible for the death of thedeceased for non fulfillment of the demand of dowry. On 01.04.2013postmortem on the body of the deceased was conducted and doctoropined that the cause of death was due to "Asphyxia as result of antemortem hanging."

After the that followed the filed ainvestigation complaint, police charge sheet under Section 498A/304B read with Section 34 of theIndian Penal Code. Respondents pleaded not guilty and claimed trialto the charges framed against them.

The prosecution examined as many as 14 witnesses to bring home theof the accused The statements of the accused guilt persons. personswere recorded under Section 313 of the Code of Criminal Procedurewherein they denied the accusations levelled against them. Onewitness was examined in defence. The learned Trial Court eventuallycame to the conclusion that the prosecution has not been able to proveits case beyond all reasonable doubts and accordingly acquitted theaccused persons.

5. Aggrieved by the acquittal of the accused persons, the present leavepetition has been preferred by the State.petition has been preferred by the State.

6. Ms. Anita Abraham, learned counsel for the State opened herarguments by contending that the impugned judgment is contrary tothe material available on record and the same is based onarguments by contending that the impugned judgment is contrary tothe material available on record and the same is based on

presumptions, conjectures and surmises and is in gross ignorance ofsettled law laid down the Hon'ble Court in various casesby Supreme and is liable to be set aside. She further submits that since theprosecution has been able to prove that the deceased had beensubjected to not only demand of dowry but also cruelty soon beforeher death, however, the learned Trial Court has erred in acquitting theaccused for the offences for which have been persons they charged.Reliance has been placed upon Pradip Singh & Anr. Vs. Stale ofJharkhand reported wiAIR 2007SC 2154.

Learned counsel further contends that it is fit case where therespondents are liable to be convicted under Sections 304B and498A of the Indian Penal Code. She further contends that the TrialCourt committed error in not the testimonies ofgrave considering the witnesses regarding the demand of dowry made by therespondents and commission of cruelty and torture against thedeceased on account of non-flilfilment of the dowry demand. Shefurther contends that the testimonies of the witnesses are reliable andtruthful and that there was no apparent reason for false implication ofthe accused persons.

Mr. Dinesh Garg, learned Counsel for the respondents with all forcecountered the arguments addressed by learned counsel for the State.He has specifically contended that the Trial Court has appreciated thematerial on record by taking care and caution by giving equalimportance to the evidence of the prosecution witnesses and also thedefence witness. The trial Court has also appreciated the evidence

considering the improvements and contradictions which are serious innature elicited during the course of cross examination of the witnessesproved through the evidence of other witnesses. Reliance has beenplaced upon Sunil Kumar Samhinidayal Gupta Vs. State ofMaharashtra reported in 2010 (4) JCC 3040 SC.

Mr. Garg has supported the impugned judgment and submitted thatthe Trial Court has rightly canvassed the acquittal of the accusedpersons by concluding that the prosecution failed to prove its casebeyond reasonable doubt. Mr. Garg further submits that while dealingwith the judgments of acquittal, the Appellate court must be verycareful in reversing the judgment unless the judgment of the trialCourt is so erroneous, illegal and it bites the conscious of the court.Therefore, he contended that there is no room for this court tointerfere with the well-reasoned judgment of the trial Court. Hence, hehas pleaded for confirmation of the said judgment of acquittal passedby the learned trial Court. He placed reliance upon V. N. RatheeshVs. State of Kerala reported in 2006 Cri. L.J. 3634 and Kallu @Masih Vs. State of MP reported in 2006 (1) Crimes 1 (SC).

Mr. Garg further argued that the prosecution has utterly failed toprove its case against the respondents. He further submitted that therewas no demand for dowry by the respondents at any point of time andthe prosecution has failed to prove that the deceased was subjected tocruelty or harassment by the respondents in connection with demandof dowry. The prosecution has utterly failed to establish theingredients of Section 304B and 498A of the Indian Penal Code

against the respondents and the appellants cannot be convicted on thebasis of suspicion or imagination.

10. We heard learned counsel for the parties at length and also perused theimpugned order as well as material available on record.

11. At the outset, before delving into the merits of the case, we deem itappropriate to discuss the relevant provisions which are involved inthe present case. Section 304B reads as under:

304-B - Where the death of woman is caused by anyburns or bodily injury or occurs otherwise than undernormal circumstances within seven years of hermarriage and it is shown that soon before her death shewas subjected to cruelty or harassment by her husbandor any relative of her husband for, or in connectionwith, any demand for dowry, such death shall becalled" dowry death", and such husband or relativeshall be deemed to have caused her death.Explanation - For the purposes of this Sub-section,"dowry" shall have the same meaning as in Section 2 ofthe Dowry Prohibition Act, 1961 (28 of 1961). (2)Whoever commits dowry death shall be punished withimprisonment for term which shall not be less thanseven years but which may extend to imprisonment forlife.

12. The legal position with regard to Section 304B of the Indian PenalCode has been reiterated by Hon'ble Apex Court recently in MayaDevi & Ors. Vs. State of Haryana reported in 2015 (13) SCALE 336,wherein it has been held that:

"16. To attract the provisions of Section 304B, oneof the main ingredients of the offence which isrequired to be established is that "soon beforeher death" she was subjected to cruelty or harassment"for, or in connection with the demand for dowry".The expression "soon before her death" used in

Section 304B Indian Penal Code and Section 1I3B ofthe Evidence Act is present with the idea of proximitytest. In fact, learned senior Counsel appearing for theAppellants submitted that there is no proximity for thealleged demand of dowry and harassment. With regardto the said claim, we shall advert to while consideringthe evidence led in by the prosecution. Though thelanguage used is "soon before her death", no definiteperiod has been enacted and the expression "soonbefore her death" has not been defined in both theenactments. Accordingly, the determination of theperiod which can come within the term "soon beforeher death" is to be determined by the courts, dependingupon the facts and circumstances of each case.However, the said expression would normally implythat the interval should not be much between thecruelty or harassment concerned and the death inquestion. In other words, there must be existence of aproximate and live link between the effect of crueltybased on dowry demand and the death concerned. Ifthe alleged incident of cruelty is remote in time andhas become stale enough not to disturb the mentalequilibrium of the woman concerned, it would be of noconsequence.

17. The aforesaid provisions were considered bythis Court in Bansi Lai v. State of Haryana : (2011)11 see 359 wherein it was held that while consideringthe case Under Section 304B cruelty has to be provedduring the close proximity of the time of death and itshould be continuous and such continuous harassment,physical or mental, by the accused should make life ofthe deceased miserable which may force her to commitsuicide. This Court further held that where the crueltyhas been proved during the close proximity of the timeof death then the provisions of Section 113B of theIndian Evidence Act, 1872 providing forpresumption that the accused is responsiblefor dowry death, have to be pressed in service. In paras19 and 20 of the judgment, this Court has further heldas follows:

19. It may be mentioned herein that thelegislature in its wisdom has used the word"shall" thus, making mandatory application onthe part of the court to presume that death hadbeen committed by the person who hadsubjected her to cruelty or harassment inconnection with any demand of dowry. It isunlike the provisions of Section 113-Aof theEvidence Act where discretion has beenconferred upon the court wherein it had beenprovided that court may presume abetment ofsuicide by married woman. Therefore, in viewof the above, onus lies on the accused to rebutthe presumption and in case of Section 113-B relatable to Section 304-B Indian Penal Code,the onus to prove shifts exclusively and heavilyon the accused. The only requirements arethat death of woman has been caused bymeans other than any natural circumstances;that death has been caused or occurred within 7years of her marriage; and such woman hadbeen subjected to cruelty or harassment by herhusband or any relative of her husband inconnection with any demand of dowry.20. Therefore, in case the essential ingredientsof such death have been established by theprosecution, it is the duty of the court to raisea presumption that the accused has causedthedowry death. It may also be pertinent tomention herein that the expression "soon beforeher death" has not been defined in either of thestatutes. Therefore, in each case, the Court hasto analyse the facts and circumstances leadingto the death of the victim and decide if there isany proximate connection between the demandof dowry and act of cruelty or harassment andthe death.

18. This Court. \n Mustafa ShahadalShaikh v. State of Maharashtra : (2012) 11 SCC 397held as under:

CrI. LP. 535/2015

9. In order to convict an accused for the offencepunishable Under Section 304-B Indian PenalCode, the following essentials must be satisfied:(i) the death of woman must have been causedby burns or bodily injury or otherwise thanunder normal circumstances;

(ii) such death must have occurred within sevenyears of her marriage;

(iii) soon before her death, the woman musthave been subjected to cruelty or harassment byher husband or any relatives of her husband;(iv) such cruelty or harassment must be for, orin connection with, demand for dowry.

10. When the above ingredients are establishedby reliable and acceptable evidence,such death shall be called dowry death and suchhusband or his relatives shall be deemed to havecaused her death. If the abovementionedingredients are attracted in view of the specialprovision, the court shall presume and it shallrecord such fact as proved unless and until it isdisproved by the accused. However, it is opento the accused to adduce such evidence fordisproving such compulsory presumption as theburden is unmistakably on him to do so and hecan discharge such burden by getting an answerthrough cross-examination of the prosecutionwitnesses or by adducing evidence on thedefence side.

11. To attract the provisions of Section 304B,one of the main ingredients of the offencewhich is required to be established is that "soonbefore her death" she was subjected to crueltyor harassment "for, or in connection with thedemand for dowry". The expression "soonbefore her death" used in Section 304-B IndianPenal Code and Section 113-B of the EvidenceAct is present with the idea of proximity test. In

fact, the learned Counsel appearing for theAppellant submitted that there is no proximityfor the alleged demand of dowry andharassment. With regard to the said claim, weshall advert to the same while considering theevidence led in by the proseeution. Though thelanguage used is "soon before her death", nodefinite period has been enacted and theexpression "soon before her death" has not beendefined in both the enactments. Accordingly,the determination of the period which can comewithin the term "soon before her death" is to bedetermined by the courts, depending upon thefacts and circumstances of each case. However,the said expression would normally imply thatthe interval should not be much between thecruelt)' or harassment concerned andthe death in question. In other words, there mustbe existence of proximate and live linkbetween the effect of cruelty basedon dowry demand and the death concerned. Ifthe alleged incident of cruelty is remote in timeand has become stale enough not to disturb themental equilibrium of the woman concerned, itwould be of no consequence. These principleshave been reiterated in Kaliyaperumal v. StateofT.N. and Yashoda v. State of M.P."

13. The law as it exists now provides that where the death of woman iscaused by any burns or bodily injury or occurs otherwise than undernormal circumstances within 7 years of marriage and it is shownthat soon before her death she was subjected to cruelty or harassmentby her husband or any relative for or in connection with any demandof dowry such death shall be punishable under Section 304B of theIndian Penal Code. In order to seek conviction against person forthe offence of dowry death, the prosecution is obliged to prove that:

(a) The death of woman was caused by bums or bodily injury orhad occurred otherwise than under normal circumstances;had occurred otherwise than under normal circumstances;

(b) Such death should have occurred within 7 years of hermarriage;marriage;

(c) The deceased was subjected to cmelty or harassment by herhusband or by any relative of her husband;husband or by any relative of her husband;

(d) Such cruelty or harassment should be for or in connection withthe demand of dowry; andthe demand of dowry; and

(e) To such cmelty or harassment the deceased should have beensubjected to soon before her death.subjected to soon before her death.

14. In the instant case, two of the ingredients of Section 304B of theIndian Penal Code are answered in the affirmative firstly the death ofthe deceased was within seven years of marriage and secondly thedeath was otherwise than under normal circumstances. Thus, we areleft to find out whether the respondents treated the deceasedwith cmelty or harassment on account of demand of dowry.Indian Penal Code are answered in the affirmative firstly the death ofthe deceased was within seven years of marriage and secondly thedeath was otherwise than under normal circumstances. Thus, we areleft to find out whether the respondents treated the deceasedwith cmelty or harassment on account of demand of dowry.

15. In order to prove that the deceased was subjected to harassment andcruelty in connection with demand of dowry "soon before her death",the prosecution primarily relied on the evidences of PWl (father ofthe deceased) and PW2 (mother of the deceased) to establish its case.In the light of testimonies of these two witnesses, we will nowexamine whether such allegations stand proved by the prosecution.cruelty in connection with demand of dowry "soon before her death",the prosecution primarily relied on the evidences of PWl (father ofthe deceased) and PW2 (mother of the deceased) to establish its case.In the light of testimonies of these two witnesses, we will nowexamine whether such allegations stand proved by the prosecution.

16. PWl Ram Niwas (father of the deceased) in his statement recorded by

Sub Divisional Magistrate on the next day of incident stated that theof the deceased was solemnized with accused No. 1 onmarriage 20.06.2011 and no demand was raised by the accused persons at thetime of marriage and he gave articles out of his own sweet will. Hefurther stated that after 2-3 months of the marriage accused personsstarted harassing the deceased for bringing less dowry. He alsodisclosed that in January, 2012 Omwati, mother of accused No.ldemanded Rs.2,00,000/- for meeting the expenses for the marriage ofher daughter.

When examined in Court, this witness did not dispute the marriage ofthe deceased with accused No. 1 on 20.06.2011 and that there was nodemand of dowry at the time of marriage. He further deposed thatsoon after marriage, her husband, mother-in-law and sister in law(Nanad) started taunting the deceased for bringing insufficient dowryand pressurized her with demand of Rs.2 lakh which fact shecommunicated to him in January, 2012.

On the other hand, when subjected to cross examination this witnessdeposed :

"I had stated to the SDM in my statement that the accusedused to demand money from my daughter.(Confronted with Ex.PWl/A where it is not so recorded.)

I had also stated to the SDM in my statement that they used tobeat my daughter Neetu and she was being pressurized tobring money from me and that the demand of Rs.2 lacs wasraised by her husband and her sister in law and that this factwas conveyed to me in the month of January, 2012 when mydaughter was dropped at my home by mother in law or thather mother in law told me that in case I wanted to see my

daughter happy then I should give Rs.2 lacs.(Confronted with Ex.PWl/A where it is not so recorded.)

I had also stated in my statement to the SDM and in mystatement under Section 161 Cr.PC that my daughter had alsoconveyed the above said fact to me when she remained at myhouse and that in the month of March, 2012, after the festivalof Holi my daughter was again taken to her matrimonialhome or that at that time 5-7 persons had come includinghusband, father in law, mother in law, devar of my daughterand Mausa and Mausi of Manoj and that I was assured thatmy daughter will not be harassed any more.(Confronted with Ex.PWl/A and Ex.PWl/DA where it isnot so recorded.)

I had also stated in my statement to the SDM and in mystatement under Section 161 Cr.PC that again my daughtercomplained to me that she was being harassed by the accusedpersons for money and that my daughter further complainedto me that she was assaulted by accused Manoj in KalawatiHospital when her baby was being treated in KalawatiHospital and that about one week of arrival of my daughter atmy house, accused Manoj called me and requested that hewas coming to my house for taking back Neetu and that hefurther told me that he was coming to my home for taking hisdaughter and not Neetu and that I declined and asked her notto come to my house and that accused manoj made call tomy brother in law Hari Kishan and persuaded him.

(Confronted with Ex.PWl/A Ex.PW/DA where it is not sorecorded.)

I had also stated in my statement to the SDM and in mystatement under Section 161 Cr. PC that on the occasion ofHoli festival of 2013, my son Jeetu and my younger brotherPramod visited the matrimonial home of Neetu but they werenot allowed by her in law to meet with Neetu and that my sonJeetu and brother Pramod informed me on their return, thatNeetu wanted to say something but they were not allowed tomeet Neetu by her in laws.

(Confronted with Ex.PWl/A and Ex.PWl/DA where it isnot so recorded.)

I had also stated to the police in my statement that after one ortwo months of her marriage, the accused persons startedharassing my daughter and that they were saying that nothingwas given in the marriage of Neetu, neither jewelleary wasgiven nor money was given or quality of clothes was notgood.

(Confronted with Ex.PWl/DA where it is not sorecorded.)

I had also stated to SDM in my statement that demand of Rs.2lakh was made by accused Omwati when my daughter wasdropped by her at my house in the month of January, 2012.(Confronted with Ex.PWl/A where it is not so recorded.)

17. PW2 Omwati (mother of the deceased) also made similar statementto the Sub Divisional Magistrate and to the police under Section 161of the Code of Criminal Procedure. The testimonies of both thewitnesses when examined carefully show that both the witnesses haveto great extent improved their statements and the statements are tobe looked into with great caution.

18. To prove the harassment or cruelty meted to the deceased, PWl andPW2 deposed before the Court that the husband of the deceased gavebeatings to her in hospital when the deceased or her baby was beingtreated. Both the witnesses failed to bring this fact in their statementsrecorded by Sub Divisional Magistrate and by the police. Nocomplaint whatsoever was lodged against the accused persons on thatday or after the alleged incident. Both the witnesses in their statementsrecorded under Section 161 of Code of Criminal Procedure havestated that on the occasion of Holi, their son Jeetu and youngerbrother of PWl Pramod had gone to meet the deceased at her

Matrimonial Home but the accused persons did not allow them tomeet her. The prosecution failed to cite either Jeetu or Pramod aswitnesses who could support the fact as stated by PWl and PW2.Further, both witnesses deposed that in January, 2013, the husband ofdeceased along with his parents and Mausa Rakesh Kumar came tohis house to take the deceased back to her matrimonial home and PWlcalled some persons from the neighbourhood and on persuasion sentthe deceased to her matrimonial home. It is material to note thatprosecution failed to cite any of the person from the neighbourhood asa witness. Further, PWl categorically stated that "My wife was alsoaware about the demand of Rs.2 lakh as made by the in laws of mydaughter in January, 2012." but PW2 remained silent on this aspectand never stated any such thing to the Sub Divisional Magistrate whenher statement was recorded.

19. In our opinion, the court below has properly appreciated the evidenceand noticed the glaring improvements made by the witnesses in theirevidence tendered before the Court. These improvements in ouropinion materially affect the creditworthiness of the prosecution casehence it is not safe to base the conviction on their testimonies from theevidence it is not possible to come to the conclusion that theprosecution has established its case beyond all reasonable doubt inregard to the charges alleged against the accused persons/respondents.20. So far as drawing of presumption under Section 113-B of theEvidence Act by the learned trial Judge is concerned, the prosecutionhas failed to prove that demand of Rs.2,00,000/- was made by the

accused persons and also failed to prove that the deceased wassubjected to cruelty and harassment by the respondents for and inconnection with the demand of dowry and there is nothing on recordto show that deceased was treated with cruelty or harassed with thedemand for dowry and in absence of any such evidence, it is notpermissible to take recourse to the legal presumption envisaged inSection 113-B of the Evidence Act and therefore, in thesecircumstances, the learned trial Judge was right in not drawingpresumption under Section 113-B of the Evidence Act.

21. Keeping in view the above principles laid down by the Hon'ble ApexCourt and facts and circumstances of the case, we are of the opinionthat the crucial and necessary ingredients of Sections 304-B and498-A of the Indian Penal Code that the deceased was subjected tocruelty or harassment by the respondents soon before her death for orin connection with the demand of dowry, were not established andproved by cogent and convincing evidence.Court and facts and circumstances of the case, we are of the opinionthat the crucial and necessary ingredients of Sections 304-B and498-A of the Indian Penal Code that the deceased was subjected tocruelty or harassment by the respondents soon before her death for orin connection with the demand of dowry, were not established andproved by cogent and convincing evidence.

22. The law with regard to the grant of leave is well settled by catena ofjudgments. Leave to Appeal can be granted only where it is shownthat the conclusions arrived at by the Trial Court are perverse or thereis misapplication of law or any legal principle. The High Court cannotentertain petition merely because another view is possible or thatanother view is more plausible. In Andvelu and Anr. V5. Staterepresented by the Public Prosecutor and Anr. : 2009 (10) SCC 206,while referring with approval the earlier judgment in Ghurey Lai vs.State of Uttar Pradesh: (2008) 10 SCC 450, the Supreme Courtjudgments. Leave to Appeal can be granted only where it is shownthat the conclusions arrived at by the Trial Court are perverse or thereis misapplication of law or any legal principle. The High Court cannotentertain petition merely because another view is possible or thatanother view is more plausible. In Andvelu and Anr. V5. Staterepresented by the Public Prosecutor and Anr. : 2009 (10) SCC 206,while referring with approval the earlier judgment in Ghurey Lai vs.State of Uttar Pradesh: (2008) 10 SCC 450, the Supreme Court

reiterated the principles which must be kept in mind by the HighCourt while entertaining an Appeal against acquittal. The principlesare:-

1. The accused is presumed to be innocent until provenguilty. The accused possessed this presumption whenhe was before the trial court. The trial court's acquittalbolsters the presumption that he is innocent.2. The power of reviewing evidence is wide and theappellate court can re-appreciate the entire evidence onrecord. It can review the trial court's conclusion withrespect to both facts and law, but the Appellate Courtmust give due weight and consideration to the decisionof the trial court.

3. The appellate court should always keep in mind thatthe trial court had the distinct advantage of watchingthe demeanour of the witnesses. The trial court is in abetter position to evaluate the credibility of thewitnesses.

4. The appellate court may only overrule or otherwisedisturb the trial court's acquittal if it has "verysubstantial and compelling reasons" for doing so.-5. If two reasonable or possible views can be reached one that leads to acquittal, the other to conviction - theHigh Courts/appellate courts must rule in favour of theaccused.

6. Careful scrutiny of all these judgments lead to thedefinite conclusion that the appellant court should bevery slow in setting aside judgment of acquittalparticularly in case where two views are possible.The trial court judgment cannot be set aside becausethe appellate court's view is more probable. Theappellate court would not be justified in setting asidethe trial court judgment unless it arrives at clearfinding on marshalling the entire evidence on recordthat the judgment of the trial court is either 'perverse'or wholly unsustainable in law.

23. Having regard to the principles laid down by the Apex Court asdiscussed above, we find that there is no sufficient ground/material forproceeding against the respondents for the offences under Section498A/304BA/34 of the Indian Penal Code and there is no infirmity inorder dated 08.01.2015 passed by the learned Trial Court. Hence, theleave petition stands dismissed.discussed above, we find that there is no sufficient ground/material forproceeding against the respondents for the offences under Section498A/304BA/34 of the Indian Penal Code and there is no infirmity inorder dated 08.01.2015 passed by the learned Trial Court. Hence, theleave petition stands dismissed.

SANGITAHDHISEHGAL, J

FEBRUARY4,2015gr

G. S. SISTANI,J

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