CRL.A./574/2000 of STAISH KUMAR BHATIS Vs STATE

*IN THE HIGH COURT OF DELHI AT NEW DELHI+Crl.Appeal No.574/2000

Date of Decision: 30[th]March, 2017

SATISH KUMAR BHATIA

..... Petitioner

ThroughMr.Bhopal Singh, Adv.

versus

STATE

…..Respondent

ThroughMr.Panna Lal Sharma, APP.

CORAM:HON'BLE MR. JUSTICE P.S.TEJI

P.S.TEJI, J.

1.The present appeal has been filed under Section 374

Cr.P.C. against judgment dated 06.09.2000 whereby the

appellant has been found guilty and convicted for an offencepunishable under Section 498A IPC and order on sentence

dated 08.09.2000 whereby the appellant has been sentenced to

undergo rigorous imprisonment for three years and to pay afine of Rs.5,000/- and in default to payment of fine, to further

undergo rigorous imprisonment for period of one year.

2.The facts of the case, as per the case of the prosecution,

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in nutshell are that on 08.09.1984 at about 4.55 A.M., aninformation was received at police station Subzi Mandi fromone Sh.Vinod Kumar r/o House No.7870, Roshan Ara Road tothe effect that one lady had burnt herself in House no.7872.

The information was recorded at Serial No.22A in DD Registerand copy of the same was handed over to SI Ram Swaroop for

investigation.

3.SI Ram Swaroop reached the spot where Ashok Kumar,brother of the deceased Anju @ Chanchal Bhatia met him. He allegedthat the deceased was his elder sister who had been married to theappellant/accused Satish Kumar on 02.10.1976. After marriage,Satish Kumar used to give beatings to her occasionally. Whenevershe visited his house, she used to complain against her husband,father-in-law and dewar that they had been harassing her. On the dayof occurrence, he received information on telephone from KrishanLal that Anju @ Chanchal had died due to burns injury.He came toDelhi with his family and went to Anju’s house. He saw dead bodyof Anju @Chanchal lying on cot in burnt condition.

4.On the statement of Ashok Kumar, SI Ram Swaroop made an

endorsement and got case under Section 498A IPC registered.

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Statements of witnesses were recorded and the post mortem on thedead body was conducted. During investigation, site plan wasprepared and Section 306/34 IPC also added.On 12.09.1984, theappellant/accused Satish Kumar, husband and Sh. Baldev Raj, father-in-law, were arrested.

5.After completion of investigation, challan was filed and later

the M.M. committed the case to the court of sessions.

6.Vide order 13.07.1987, charge under Sections 498A IPC andSection306IPCwasframedagainstMr.SatishKumar,appellant/accused and his father Sh.Baldev Raj. Both the accusedpleaded not guilty and claimed trial. During pendency of trial,Mr.Baldev Raj, father-in-law died and proceedings against him weredropped vide order dated 16.12.1994 and only the appellant/accused,stood trial.

7.In support of its case, the prosecution examined 24 witnessesin all. PW-1 SI Manohar Lal, PW-2 HC Satvir Singh, PW-3Dr.L.T.Ramani, PW-4 Sham Lal, PW-5 Sh.Ashok Kumar, PW-6Subhash Chand, PW-7 Satish Chand, PW-8 Gulshan Lal, PW-9Vinod Kumar, PW-10 HC Baljeet Singh, PW-11 SI A.Q.Khan, PW-12 SI Ram Narain, PW-13, Gopal Nath, PW-14 Durga Prashad, PW-15 Dr.D.D.Khetrapal, PW-16 Man Mohan, PW-17 ASI Ganga Dhar

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Meena, PW-18 Const. Subhash Chand, PW-19 Retd.Constable MaguRam, PW-20 Inspector C. Singh, PW-21 SI Ram Niwas, PW-22Smt.Asha Mishra, PW-23 Smt.Saroj Bala and PW-24 Retired SI RamSawroop.

8.In support of his appeal, the appellant has taken the groundthat he should have been acquitted under Section 498A IPC as the

prosecution witnesses have improved upon their statements madebefore the police under Section 154 Cr.P.C. and under Section 161Cr.P.C. where there were no specific allegations against the appellantshowing that he used to cause cruelties upon the deceased which arecovered under Section 498A IPC; that there was inconsistency in thetestimony of PW-4 which was also recorded in the order dated06.09.2000 stating that “PW-4 undoubtedly has made materialimprovement upon his statement and deposed about the complaint ofinsufficient dowry and demand of money and taking the moneywhich was not found recorded in his previous statement”; and alsothere was mention in the testimony of PW-4 about holding ofBiradari meeting, but not even single person from the same hadbeen produced to corroborate the statement; that there was alsoinconsistency in the statements made by PW-5 before the court andthe ones made before the police, which is also acknowledged by the

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learned Trial Court, but still has been made the basis for convictingthe appellant; that repeatedly the Trial Court observed that theprosecution witnesses are guilty of material improvements, yet,instead of giving the benefit of doubt to the appellant, the appellanthas been held guilty for the offence punishable under Section 498AIPC; that the Trial Court erred in not giving the benefit of Section 4of the Probation of Offenders Act to the appellant as even in anoffence under Section 304 IPC, the Hon’ble Supreme Court in 2000 IAD (Criminal) SC 631 was pleased to give the benefit of probationwhile in the present offence attracts maximum punishament of threeyears.

9.On the contrary contra, learned Additional Public Prosecutorfor the State has vehemently opposed the aforesaid contentionsraised on behalf of the appellant and submitted that the judgment ofconviction and order on sentence as passed by learned AdditionalSessions Judge do not suffer from any irregularity or illegalities andis passed with reasoned order, therefore, the same is not liable to beinterfered with.

10.Arguments advanced by the learned counsel for the appellantas well as learned APP for the State were heard.

11.PW-3 Dr.L.T.Ramani is the Civil Surgeon who had conducted

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the post mortem on the dead body of the deceased. He deposed thatthe burns sustained by the deceased were ante mortem in nature andhad been caused by fire. The cause of death was shock resulting fromburns and time of death was about 12 hours. He proved the postmortem report as Ex.PW3/A.

12.PW-4 Sham Lal is the brother of the deceased. He deposed

that two months after marriage, the accused persons includingappellant started harassing his sister for not bringing sufficient dowryand kept on demanding money, some times scooter and some timesmoney for purchasing truck. He further stated that they as per theirpotential gave Rs.2,000, Rs.5,000 and Rs.10,000 on differentoccasions, but the accused still beat his sister. On 08.09.1984, at 6.45AM, call was received that his sister had expired.In crossexamination, he volunteered that he had not stated about the demandsmade by the accused to the police as he was not in fit state of mind.

He also stated that he had not told the police about the money givenby them to the accused nor about harassment being meted out to hissister despite money being given to the accused.

13.PW-5 Ashok Kumar is brother of the deceased. He deposedthat his sister had been married to the appellant and after marriage,whenever she met them, she used to say that her husband and in-laws

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had been harassing her. He deposed that the cause of harassment asdeposed by his sister to him was that her husband/appellant used toattribute unchastity to her.He deposed that his sister visited himregularyly post marriage and would always mention that her husbandand other in-laws used to harass her.

14.PW-6 Subhash Chand is brother of the deceased. He deposed

that his sister had been married to the appellant and out of thewedlock she had two children. She used to visit them but nevercomplained to him about anything, but told him that her husband andfather-in-law used to beat her many time. She also told him that shewas being harassed. On 08.09.1984, he received phone call that hissister had died. During cross examination, he deposed that his sisterand brother-in-law used to meet him and inform that the accused andthe deceased had been living well but there used to be somealtercations between them sometimes.

15.PW-7 Satish Chand is the brother of the deceased.Hedeposed that his sister was married to the appellat/accused. He alsodeposed after 2/4 months of marriage when his sister visited them shehad complained of harassment and demand of dowry by the appellantand his father. She had also complained that they had also beaten her.In cross-examination, this witness was confronted with many

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improvements made by him in the statement made to the police.

16.PW-8 Gulshan Lal is the brother of the deceased. He alsodeposed that his sister had been married to the appellant. At the timeof marriage, dowry articles had been given as per our capacity andgood marriage had been performed. He deposed that whenever hissister visited them, she complained of the harassment and beatingsreceived by her at the hands of her husband and in laws. When shevisited them last time in February, 1984, she told them that she didnot want to go her matrimonial home in view of the harassment,beatings and dowry demands made by her husband and in-laws.17.In cross-examination, this witness was confronted with manyimprovements made by him in the statement made to the police.18.PW-24 SI Ram Sawroop is the IO of the case.Hedeposed that on 08.09.1984 when he was posted at PoliceStation: Subzi Mandi he had received DD No.22A forinvestigation. On reaching the spot, he found the appellant andhis father present at the spot, the dead body was lying outsidethe bath room. He recorded statement of Ashok Kumar, brotherof the deceased and sent the tehrir for registration of case. On12.09.1984, he had effected arrest of father of the appellant

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(since deceased).

19.From the testimony of PW-5 and PW-6, there is nothingto say that the deceased was harassed or meted with cruelty foror in connection with demand of dowry. They have stated thattheir deceased sister was harassed by the appellant, but theyhave not given any reason for any such harassment which doesnot connect the appellant with the demand of dowry.

20.So far as the testimony of PW-4, PW-7 and PW-8 isconcerned, they have stated that their deceased sister washarassed by the appellant for bringing insufficient dowry. PW-4had deposed that the appellant and his family membes tauntedhis sister for bringing insufficient dowry and kept on demandingmoney for scooter and truck.He further deposed thatsometimes they gave Rs.2,000/-, Rs.5,000/- and Rs.10,000/-.

21.Testimony of PW-4 does not inspire confidence and thereare material improvements and inconsistencies in his statementfor the reasons that in his statement recorded under Section 161Cr.P.C. he had not stated to the police about any harassmentmeted out to his deceased sister by the appellant. He had even

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admitted during his cross examination that he had not statedabout demands of dowry to the police. He had also not stated tothe police about the demand for scooter and money forpurchasing truck. He had also admitted to not having stated tothe police about paying any money to the appellant.Thestatement of PW-4 shows that he made material improvements

during his depositions in the court regarding harassment to thedeceased on account of demand of dowry. In his statementmade to the police he had not stated anything about the demandof any dowry or money by the appellant, but during hisdeposition in the court, he changed his version and stated thathis sister was harassed by the appellant on account of demandof dowry, which creates doubt about the case of prosecutionand makes his testimony unreliable.

22.Similar is the position with regard to testimony of PW-7and PW-8. They have also made material improvements andthere are inconsistencies in their statements. In their statementmade to the police under Section 161 Cr.P.C., they have notstated anything against the appellant that he had ever harassed

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or tortured the deceased on account of demand of dowry. But,during their deposition before the court, they have stated thatdeceased was harassed by the appellant on account of demandof dowry. These material improvements and inconsistenciesmade their testimony unreliable and does not inspire confidenceof the court.

23.It is worthwhile to mention that PW-5 Ashok Kumar isthe complainant of the case on whose statement (Ex.PW5/A),the FIR of the instant case was registered. Neither in hisstatement Ex.PW5/A nor during his deposition in the court, hehas stated anything to the effect that the deceased was everharassed by the appellant or any of the family members for thedemand of dowry. Even, PW-6 has stated that the deceasedinformedhimthatshewaslivingwellwiththeappellant/husband.

24.There is no other public witness on the record whichcould connect the appellant with the offence of the present case.The testimony of the brothers of the deceased (PW-4 to PW-8)is not reliable and trustworthy to connect the appellant with the

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demand of dowry. There are several material improvements inthe testimony of PW-5, PW-7 and PW-8 which make the caseof the prosecution doubtful.

25.Reliance in this regard is placed on the case of Mritunjoy

Biswas Vs. Pranab @ Kuti Biswas and Anr (2013) 12 SCC 796,

where the Apex Court held as under:

"As is evincible, the High Court has also takennoteofcertainomissionsanddiscrepanciestreatingthemtobe material omissionsandirreconcilable discrepancies. It is well settled inlaw that the minor discrepancies are not to begiven undue emphasis and the evidence is to beconsideredfromthepointofviewoftrustworthiness. The test is whether the sameinspires confidence in the mind of the court. If theevidence is incredible and cannot be accepted bythe test of prudence, then it may create dent intheprosecutionversion.Ifanomissionordiscrepancy goes to the root of the matter andushers in incongruities, the defence can takeadvantage of such inconsistencies. The omissionshouldcreateaseriousdoubtaboutthetruthfulness or creditworthiness of witness. It isonly the serious contradictions and omissionswhich materially affect the case of the prosecutionbut not every contradiction or omission (See LeelaRam vs. State of Haryana and another, Rammialias Rameshwar v. State of M.P. and ShyamalGhosh v. State of West Bengal)."

26.On similar point, it was also observed in another case of

State of Gujarat vs. Kishanbhai etc (2014) 5 SCC 108 that

glaring inconsistencies and infirmities in statement of witnesses

render their statements unreliable. Hence benefit of doubt mustbe given to the accused.

27.In view of above discussion, this court is of the

considered opinion that no case under Section 498A IPC is

made out against the appellant and while extending him benefitof doubt, he is acquitted of the said offence.

28.As discussed above, the judgment of conviction and order

on sentence are set aside. The appellant is on bail. His bail bondand surety bond stand discharged.

29.The appeal stands disposed of accordingly.

MARCH 30, 2017

(P.S.TEJI)JUDGE