Delhi District Court
vs The State (Govt. Of Nct Of Delhi) on 22 November, 2014
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IN THE COURT OF SH. J.P.S MALIK :SPECIAL JUDGE
CBI03 (PC ACT): TIS HAZARI: DELHI
CA No.18/14
Smt. Ranjana Sharma,
W/o Sh. Vijay Kumar Sharma
R/o 43, Bunglow Road, Kamla Nagar
Delhi.
Appellant
Versus
1. The State (Govt. of NCT of Delhi)
Through Commissioner of Police
2. Sh. Vijay Kumar Sharma
S/o Late Sh. Om Prakash
R/o 170 D, Kamla Nagar, Delhi
3. Sh. Satish Kumar Sharma
S/o Late Sh. Om Prakash
R/o 170 D, Kamla Nagar, Delhi
4. Sh. Ashok Kumar Sharma
S/o Late Sh. Om Prakash
R/o 170 D, Kamla Nagar, Delhi
Respondents
ORDER:
1. This is an application under Section 391 Cr.P.C, filed by CA No.18/14 1/10 2 the appellant Ranjana Sharma, for taking of additional evidence on her behalf.
2. Appellant has filed an appeal under Section 372 Cr.P.C challenging the order/judgment dated 27.06.2014 passed by Ld. Trial Court in case FIR No.117/2000, P.S Roop Nagar, vide which respondents no.2,3 and 4 were acquitted of charges under Section 498A/406/34 IPC.
3. In brief, the facts are that appellant was married to respondent no.2, Vijay Kumar Sharma, on 24.02.1993. There was a dispute between appellant and respondent no.2 and on a complaint made by the appellant of having been harassed by respondents no.2, 3, 4 as well as by Smt. Siya Devi, who had expired, before the charge in the matter was framed against the respondents no.2, 3 and 4 by Ld. Trial Court. As per the case FIR No.117/2000, registered on the basis of complaint made by the appellant, the allegations are of harassment by the respondents for the reason that they were not happy with the dowry brought by the appellant in marriage.
4. One of the defence taken on behalf of respondents CA No.18/14 2/10 3 particularly respondent no.2 Vijay Kumar Sharma, was that after the insistence of the appellant, he had gone to live separately in a rental accommodation, separately from other respondents, being his family members, but even then, the appellant was not satisfied and she continued insisting on respondent no.2 leaving his job and to settle with her, abroad.
5. Ld. Trial Court vide the impugned judgment had broadly agreed with the defence taken by the respondents holding that respondents were able to prove that the main cause of dispute between appellant and respondent no.2 was the insistence of appellant to live abroad, alongwith respondent no.2. Ld. Trial Court has also concluded that there was unexplained delay in filing the complaint, with the police on the part of the appellant.
6. In the application filed, the appellant has stated that she had filed a complaint with the concerned P.S on 04.12.1999 itself. However, it could not be placed on record inadvertently and thereafter, an application was filed by her before Ld. Trial Court for taking the copy of the said complaint on record, but the prayer of the appellant was declined by Ld. Trial Court CA No.18/14 3/10 4 vide order dated 27.06.2004. Copy of the complaint dated 04.12.1999 has been annexed with the application as AnnexureP1. The appellant wants to prove one more document, which is the reply filed by respondent no.2 in proceedings under HMA bearing No.617/2008 titled as 'Smt. Ranjana Sharma Vs Sh. Vijay Kumar Sharma', the proceedings initiated by the appellant under Section 9 of Hindu Marriage Act, seeking Restitution of Conjugal Rights. The appellant is claiming that in the entire body of the detailed reply, respondent no.2 nowhere claimed the fact of being nagged by the appellant for leaving the country to settle abroad and certified copy of the reply thereto, filed by respondent no.2, has been annexed with the application, as AnnexureP2.
7. In the reply to the application filed on behalf of respondents no.2 to 4, the stand taken is that the provisions of Section 391 Cr.P.C cannot be invoked to fulfill the lacunae in the case of the prosecution, either by the prosecution or by the appellant. It is claimed that the appellant herself is a lawyer and has utilized the services of different lawyers to assist her, during the trial of the case. It is claimed that AnnexureP2, CA No.18/14 4/10 5 being the certified copy of the reply filed by respondent no.2 in the proceedings under Section 9 of the HMA, was available with the appellant all through out, for more than 10 years and she is not offering any sufficient or cogent explanation, for not producing the document on record.
8. Trial Court Record was summoned in the matter. Arguments were heard on behalf of both, the appellant and respondents no. 2 to 4. Respondent no.1 is the State.
9. The complaint dated 04.12.1999 made by the appellant to P.S Roop Nagar is placed on Trial Court Record and an application to take the same on record, was filed by the appellant vide application dated 09.12.2013. The documents alongwith other applications of the parties were dismissed by Ld. Trial Court vide order dated 27.06.2014, the date on which the impugned order was passed, on the ground that the applications are primarily for filing certain documents, which are lying on record and since arguments have already been heard, the documents having been filed at a belated stage, cannot be taken on record and read in evidence. Thus, the appellant has made an unsuccessful attempt to place the copy CA No.18/14 5/10 6 of the complaint dated 04.12.1999 made by her to the P.S Roop Nagar, Delhi, on record. As regards the other document, being AnnexureP2, certified copy of the reply filed by respondent no.2 in the proceedings under Section 9 of HMA, it was only one suggestion given to complainant during her cross examination, that she had been insisting and pressurising respondent no.2 to leave the country for settling abroad and it was only after the evidence of prosecution was closed that a full fledged defence was taken on the part of the respondents and apart from respondent no.2 examining himself under Section 315 Cr.P.C, other witnesses were also produced to corroborate the fact of appellant pressurising and insisting upon leaving the country for settling abroad. Respondent no.2 was cross examined before Ld. Trial Court on 04.09.2008/12.11.2008/03.08.2011 and 07.03.2012. Other two witnesses, being DW2 Dhirender Bhatnagar was examined on 14.05.2012, 26.06.2012 and DW3 S.K.Bhargava, was examined on 25.07.2012 , when they deposed that main reason of the quarrel between the two was, that appellant was insisting upon respondent no.2 to settle abroad.
CA No.18/14 6/10
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10. On behalf of respondents, reliance has been placed on a case decided by Hon'ble Supreme Court titled as Ukha Kolhe Vs State of Maharashtra AIR 1963 SC 1531, wherein it was held by Hon'ble Supreme Court that in a case where the evidence led at the trial is deficient in important respects that is not a sufficient ground for ordering retrial and if the appellate Court thinks that additional evidence is necessary in the interests of justice and for a just and proper decision of the case, the appellate Court should instead of directing a retrial, exercise its powers under Section 428(1) Criminal P.C. (old code). Reliance was also placed on behalf of respondents on a case decided by Hon'ble Gujarat High Court titled as State of Gujarat Vs Rajubhai Dhamirbhai Bariya & Ors. 2004 Cri.L.J.771.
11. On the contrary, on behalf of appellant, reliance was placed on a case decided by Hon'ble Supreme Court titled as Ashok Tshering Bhutia Vs State of Sikkim (2011) 4 SC Cases 402, wherein it was held by Hon'ble Supreme Court that the additional evidence can be taken at the appellate stage in exceptional circumstances, to remove any irregularity, where CA No.18/14 7/10 8 the circumstances, so warrant in public interest. It was further held by Hon'ble Supreme Court that generally such power is exercised to have a formal proof of the documents, just to meet the ends of justice, but the provisions of Section 391 Cr.P.C cannot be pressed into service in order to fill up the lacunae in the prosecution case. Reliance on behalf of appellant was also placed, to buttress the point, on a case decided by Hon'ble Supreme Court titled as Sudevanand Vs State through CBI as well as other appellants (2012) 3 SC Cases 387. The gist of the case law being relied upon on behalf of both, appellant and respondents, is that powers Under Section 391 Cr.P.C to lead the evidence, should be exercised in exceptional circumstances, not to fill up the lacunae in the case of the prosecution, but to ensure justice and proper adjudication of the dispute.
12. Coming to the facts of the present case, there was a complaint dated 04.12.1999 made to the officials of P.S Roop Nagar, Delhi, by the appellant and same has been placed on record of Ld. Trial Court by the appellant, much before the impugned order was passed and through the proof of the CA No.18/14 8/10 9 complaint, the appellant is of the opinion that delay in filing of the complaint stated to be unexplained, could be explained to a reasonable extent. Through the documents AnnexureP2, the appellant is of the opinion that same shall go to prove the fact that defence being made, as regard the appellant insisting for leaving the country, is an afterthought. The documents by their proof itself, will not go to fill up any lacunae in the case, but in fact, help proper adjudication of the matter and the facts of the case, justifies the exercising of power under Section 391 Cr.P.C. The application filed by the appellant under Section 391 Cr.P.C is accordingly allowed. The matter is referred to Ld. Trial Court for recording the evidence of the appellant to prove the documents, being the complaint dated 04.12.1999 made to P.S Roop Nagar, AnnexureP1 and the certified copy of the reply filed by respondent no.2 in the proceedings under Section 9 of HMA, initiated by the appellant for Restitution of Conjugal Rights, AnnexureP2. The appellant and respondents are directed to appear before Ld. Trial Court on 10.12.2014. Ld. Trial Court shall forward the evidence so recorded, to this Court, alongwith the Trial Court Record.
CA No.18/14 9/10
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13. Copy of the order be sent to Ld. Trial Court. Trial Court Record be sent back.
Announced in open court (J P S MALIK)
On 22.11.2014 SPECIAL JUDGE
CBI03 (P C Act)
DELHI
CA No.18/14 10/10