The main legal point established in the judgment is the requirement for corroborating evidence when convicting based on the testimony of a child witness, and the consideration of entitlement to suspension of sentence in the absence of certain charges.

ORDER

CRL.M.B. 828/2022

1. By this application the appellant seeks suspension of sentence pending hearing of the appeal.

2. The appellant has been convicted for offence punishable under Section 302 IPC by the learned Trial Court and awarded life imprisonment. Learned counsel for the appellant contends that the appellant and his family members were charged for offences punishable under Section 304-B/498- A/34 IPC and in the alternative charge of 302 IPC was framed against the appellant. The appellant, his brother and parents have all been acquitted by the impugned judgment for offences punishable under Sections 304B/498- A/34 IPC as no harassment for dowry much less soon before the death was proved. No charge for offence punishable under Section 302 IPC with the aid of 34 IPC was framed against the family members.

3. Learned counsel for the appellant further contends that as per the opinion of the post-mortem doctor the cause of death was hanging. This opinion of the post-mortem doctor was subsequently confirmed by a Board of Doctors exhibited as Ex-16/C-1 according to which also the death was due to hanging. He further states that no charge for offence punishable under Section 306 IPC was framed against the appellant. Learned counsel contends that the learned Trial Court has based his conviction on an uncorroborated, tutored statement of the appellant and the deceased who was one and half year old at the time of the incident and thereafter was all through in the custody of the complainant. The complainant in his first statement made no specific allegations against the appellant and his brother despite asking of the SDM. The appellant was not present at home when the incident took place. After coming back he come back from the clinic, broke the latch of the room and found the deceased hanging. The complainant i.e. father of the deceased who was an Advocate on reaching Delhi in his first statement stated that on 16th March, 2011 his wife received a phone call from Abhishek stating that his wife has passed away and she has committed suicide. He along with his wife immediately came to Delhi. His daughter Devyani got married to Abhishek on 5th July, 2007 and she was harassed regularly by her family members and due to this harassment the husband and brother-in-law committed murder of his daughter. On the statement Ex.PW- 18/1 of the complainant, the SDM also notes his observation that the complainant was asked about the harassment to the deceased, but he did not mention any such incident. It may be noted that the FIR was registered on a detailed type written complaint given by the complainant after a period of 35 days of the incident.

4. In the detailed complaint given by the complainant on 21st April, 2011 he stated that he married his daughter to the appellant Abhishek and at the time of marriage there was no demand and both her daughter and the appellant used to do private practice. His daughter was a physiotherapist. The appellant was residing with his brother in the house and the parents used to come off and on to Delhi and that thereafter a demand of ?3 lakh was made. He further stated that his daughter was harassed for demand of dowry and that on 16th January, 2011 his son-in-law left his daughter at Karvi who stayed with him till 11th February, 2011. Though his daughter was not ready to come back, still the appellant was making phone. The complainant and his wife made her understand. The complainant brought his daughter at Delhi on 11th February, 2011. On 16th March, 2011 he received the said information that his daughter Devyani has died due to hanging. Even in this detailed type-written complaint given after a period of 35 days there is no mention whatsoever about the statement of the minor daughter of the appellant and the deceased, who was then aged one and a half years, that she saw the appellant assaulting the deceased, strangulating her and thereafter hanging her, though the minor girl was in the custody of the complain