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DELHI HIGH COURT
S. Muralidhar, J.
Mukesh & Ors. —Appellants
versus
State of Delhi —Respondent
Crl.A.No.784 of 2008
Decided on 15.12.2014
For the Appellants:Mr. Atul Kumar and Mr. Binay Kumar Jha, Advocates
For the Respondent: Ms. Isha Khanna, APP
IMPORTANT POINT
In the absence of clear and specific allegations regarding cruelty it would be unsafe to return a finding of guilt on the basis of a single vague statement without any reference to particular incident.
Headnote:Indian Penal Code, 1860 — Section 498A/34 — Conviction of appellant, husband and his mother for offence of cruelty while trial court acquitted them of charge u/s 328 IPC — Appeal — Victim PW3, wife of appellant found to have made several improvements — Victim PW3 stated that she had conveyed her parents about dowry being demanded by accused and beatings being given to her and her parents made oral complaints to police but non of the parent was examined — No specific instances of PW3 being subjected to cruelty or harassment for dowry were given — Conviction could not be sustained on such evidence.
Held: The central plank of the prosecution case is the evidence of PW-3 herself. When her evidence in Court is compared with her statement made to the SDM (Ex.PW-3/A), it is seen that she has made several improvements. She gave a very detailed description of the kind of ill treatment she is alleged to have received at the hands of A-1 and A-3 which she had not mentioned in the first instance before the SDM. The only point of concurrence with the statement made before the SDM is that A-3 is stated to have refused to receive tea offered to her by PW-3 by stating that she would not like to have tea from ‘Do Takey Ki Aurat’. However, it is seen that in her statement before the Court PW-3 for the first time alleged that A-3 had slapped her while making the above comments. She also for the first time claimed that A-1 and A-2 caused injuries to her with the glasses which had been broken by them. She further improved upon her previous statement by stating that she was not inclined to take the medicine which was brought by A-1 as “that medicine was different from the one which I used to take.” In other words, the version of PW-3 is that she had been forcibly administered some medicine and as a result of being forced to consume that medicine, she fell unconscious. However, the stomach wash of PW-3 contradicted her aforementioned statement inasmuch as it did not disclose any poisonous substance which could cause her to fall unconscious. If there was any medicine which was harmful and which she was forced to consume then certainly the CFSL report did not indicate its presence. In other words, the entire case sought to be made out by PW-3 about her being poisoned was disproved by the forensic evidence.
The question then arises as to the reliability and trustworthiness of PW-3 even as regards her allegations about being subjected to cruelty. Previous to the incident there was no complaint made at any point of time by PW-3 about being subjected to any cruelty. During her cross-examination, she volunteered that when she visited her parents’ home on 5 or 6 occasions, she had conveyed to them about dowry being demanded by A-1 and A-3 and of her being given beatings on that score. She also stated that her parents then tried to convince A-1 to refrain from beating her. She also claimed that both she and her parents made oral complaints to the police. However, the parents of PW-3 were never examined nor were their statements recorded by the police. Consequently, barring the single allegation in her statement before the SDM (Ex.PW-3/A) where she states that after marriage she was harassed for dowry, there was no specific instance of PW-3 being subjected to cruelty or harassment for dowry. As noticed by this Court in Sanjeev Kumar Aggarwal v. State 2007 [4] JCC 3074, in the absence of clear and specific allegations regarding cruelty it would be unsafe to return a finding of guilt on the basis of a single vague statement without any reference to particular incident. The said decision refers to several judgments of the Supreme Court and the High Courts on this aspect.
Consequently, the Court is of the view that the evidence brought on record by the prosecution is wholly inadequate to prove beyond reasonable doubt the guilt of A-1 and A-3 for the offence under Section 498A/34 IPC. The Court is, therefore, not able to concur with the conclusion drawn by the trial Court on the basis of its analysis which overlooks the above aspects of the evidence. (Paras 14 & 15, 17)
Result: Appeal allowed.
ORDER
S. Muralidhar, J.—This appeal is directed against the judgment dated 1st August 2008 passed by the learned Additional Sessions Judge (‘ASJ’) in SC No. 62 of 2006 convicting Mukesh, Accused No.1 (‘A-1’) and Krishna, Accused No.3 (‘A-3’) [Appellants herein] for the offence under Section 498A/34 IPC and the order on sentence dated 5th August 2008 sentencing each of them to undergo rigorous imprisonment (‘RI’) for 2 years and fine of Rs.5,000 each and in default to undergo RI for 2 months.
2. By the same judgment both accused were acquitted for the offence under Section 328/34 IPC and Ishwar, Accused No.2 (‘A-2’) was acquitted of all the offences.
THE CASE OF THE PROSECUTION
3. Sheela @ Sushila (PW-3) got married to A-1 on 12th November 2003. She and A-1 used to reside in the house of the maternal grandparents of A-1. Ishwar, (A-2) is the Mausa (maternal uncle) of A-1. In other words, Krishna (A-3), the mother of A-1 and the wife of A-2 were real sisters.
4. It was stated that although A-2 and A-3 used to reside separately they used to come to the maternal home at Inderlok and stay there for days together.
THE INVESTIGATION AND TRIAL
5. The starting point of the case was DD No. 18A dated 13th June 2005 received at Police Station (‘PS’) Anand Parbat, New Delhi. The said DD entry states that information had been received by Constable (‘Ct.’) Hoshiyar Singh from the Police Control Room through the wireless that in the house of Lal Chand at Gali No. 5, Nehru Nagar, one Mukesh had murdered his wife. The information was handed over to Ct. Sikander through whom it was conveyed to Sub-Inspector (‘SI’) Arjun (PW-9) for necessary action. Significantly, neither Ct. Hoshiyar Singh nor Ct. Sikander was examined by the prosecution.
6. PW-9 in his evidence states that when he was handed over the said DD No. 18A (Ex.PW-9/A), he and Ct. Naresh (PW-4) went to the spot and found two broken glasses. He states that nothing was found there and no person was present there. He left PW-4 at the spot and proceeded to DDU Hospital.
7. The person who apparently reached the spot first was Head Constable (‘HC’) Ram Mehar (PW-6). He was in a PCR van which was stationed in the Anand Parbat area. On 13th June 2005 when he received the call from the PCR at around 5.15 pm in terms of what was stated in DD No. 18A, he rushed to the place of occurrence and found PW-3 there in an unconscious state. He then took her to the DDU Hospital and got her admitted there. According to PW-6, PW-3 could not speak to him prior to her admission to the hospital. After getting her admitted, PW-6 returned to the place where the van was stationed. In his cross-examination PW-6 stated that “Except Sheela, I did not find any other family member. Sheela was found lying on the cot inside the house.” The medico-legal certificate (‘MLC’) of PW-3 (Ex.PW-7/A) shows that she was brought to the DDU Hospital by PW-6. The MLC was prepared by Dr. Rishi (PW-7) and noted that “alleged h/o ? unknown poisoning as told by b/by (no detailed history available).” When asked in his cross-examination as to how he knew that PW-3 was possibly poisoned, he stated that it was because PW-6 told him so.
8. In the MLC it is noted that PW-3 was having froth in her mouth, a linear abrasion extending up to her left forearm and another linear abrasion over the neck. PW-7 noted that the aforementioned abrasions were caused by ‘sharp object’. He took the gastric lavage i.e. the stomach wash and sealed it and handed over to the police.
9. Meanwhile PW-9 reached the spot and after finding no one there he proceeded to the DDU Hospital where he collected the aforementioned MLC. He states that the Station House Officer (‘SHO’) of PS Anand Parbat also reached the hospital. Incidentally, the SHO was not examined. The Sub-Divisional Magistrate (‘SDM’) of the area Mr. K.K. Sharma (PW-5) on being informed by both PW-9 and the SHO also reached the DDU Hospital. There he recorded statement of PW-3 (Ex.PW-3/A). In the statemen
