Delhi District Court
State vs Accused on 21 November, 2012
IN THE COURT OF DR. T.R. NAVAL, ADDITIONAL SESSIONS JUDGE-02, EAST DISTRICT, KARKARDOOMA COURTS, DELHI Unique Case I.D. No.02402R0507502008 SC NO.66/09 Date of Institution:23.09.2008 FIR No.670/06 Date of Argument:17.11.2012 PS Mandawali Date of Order :21.11.2012 U/S 313/498A/406/34 IPC State Versus Accused 1 Khemanand S/o Sh. Dev Dutt R/o 73-A, Gali No.2, Sewa Sadan Block, Mandawali, Delhi 2 Tara Chand S/o Sh. Dev Dutt R/o S-288-B, School Block Shakarpur, Delhi 3 Kamal Kishore S/o Sh. Dev Dutt R/o S-288-B, School Block Shakarpur, Delhi 4 Bhagwati Devi W/o Sh. Dev Dutt R/o S-288-B, School Block Shakarpur, Delhi 5 Nirmala Devi W/o Sh. Tara Chand R/o S-288-B, School Block Shakarpur, Delhi 6 Dev Dutt S/o Sh. Hardutt R/o S-288-B, School Block Shakarpur, Delhi SC No.66/09 State Vs. Khemanand & Ors. Page 1 of 37 JUDGMENT
The facts of the prosecution case in brief are that complainant Bhagwati got married with Khemanand on 08.12.2001. She alleged ill-treatment at the hands of her in-laws i.e. Dev Dutt (father-in-law), Bhagwati Devi (mother-in-law), Tara Chand (jeth), Nirmala Devi (jethani) and Kamal Kishore (brother-in-law) and that they all demanded Rs.2 lakhs from the complainant on the pretext of business of Khemanand and when she expressed her inability to meet the demand, she was given beatings by her in-laws side including her husband. She was even kept unfed at the time when she was three months pregnant and she was turned out from her matrimonial home on 18.02.2004. She went to her parental home leaving all her dowry articles at her matrimonial home. She was blessed with one daughter at her parental home. She was neither taken back to her matrimonial home for about two years nor anybody came to meet her or maintained her. Her father spent about Rs.80,000/- to 90,000/- on her operation at the time of delivery. However, on 29.10.06 on the basis of written compromise, at the instance of the police, her husband took her back and for few days she was kept well but after few days her parents-in-law, jeth and jethani came to her tenanted house and she was coerced to bring SC No.66/09 State Vs. Khemanand & Ors. Page 2 of 37 cash amount and on her refusal, she was given beatings by all including husband. On 20.11.2006 again she was turned out from her matrimonial home, whereupon she made a call at 100 number and again at P.S. Mandawali, a compromise was effected and she rejoined her husband. She became pregnant in the meanwhile. On 09.12.2006 her in-laws, jeth, jethani and devar came her home and again asked complainant to bring Rs.2 lakhs from her father for the computer business of Khemanand and on her refusal her husband stated that she did not bring money from her parental home and she had conceived the second child then who will bear her expenses of second child. Her husband in rage stated to his parents that this child (in womb) should be finished before delivery. Her mother-in- law, father-in-law and jeth started hitting kicks and blows on her womb and her jethani stated that "Bachche ka kissa hi khatam kar dete hain". They all left her in that condition and she wreathed in pain throughout the night and on next morning, she went to Manjusha Clinic, where Dr. Manjusha asked her to undergo ultrasound and after seeing ultrasound report, she stated that there was much injury and child had died. She was taken by Dr. Manjusha to Virmani Hospital, where she was operated. She asked her brother Ramesh to make call at 100 number. Police came and recorded her statement. She also alleged that her SC No.66/09 State Vs. Khemanand & Ors. Page 3 of 37 husband, father-in-law, mother-in-law, jeth and his wife in furtherance of their common intention took the life of her child who was in the womb. They also attempted to kill her besides, dragging out of her matrimonial home. Her mother-in-law misappropriated her dowry articles. On her statement, FIR of the present case No.670/06 u/s 498A/406/313/34 IPC was recorded. On 01.01.2007 IO during investigation seized invitation card of the marriage, photograph of the marriage and list of dowry articles. On 01.01.2007 accused Khemanand surrendered in the court. IO formally arrested him and obtained his police remand for one day. Accused Khemanand got recovered dowry articles and that articles were deposited in the police malkhana. On 05.02.2007 accused Kamal Kishore, Tara Chand, Devi Dutt, Smt. Bhagwati and Smt. Nirmala Devi were formally arrested as they got bail from the court. Thereafter, investigation of the case was transferred from SI Khayali Ram to ASI Kanta Prasad. He also collected the evidence, recorded the statement of witnesses and filed a charge sheet for trial of the accused persons for the offences punishable u/s 498A/406/313/34 IPC.
2. On appearance, Ld. M.M. after supplying of copies of charge sheet and documents committed the case to the court of sessions and case was assigned to this SC No.66/09 State Vs. Khemanand & Ors. Page 4 of 37 court.
3. My Ld. Predecessor vide his order dated 17.01.2009 opined that there was a prima facie case against all the accused persons for framing of charge u/s 498-A/313/34 IPC. She also opined that charge for the offence punishable u/s 406 IPC was also made out against accused Khemanand. Therefore, charge against accused persons for offences u/s 498-A/313/34 IPC was framed and read over to them. Separate charge for the offence punishable u/s 406 IPC was framed against accused Khemanand and read over to him. All accused persons pleaded not guilty and all of them claimed trial.
4. The prosecution in order to prove its case examined W/ASI Anita as PW1; Ct. Jitender Singh as PW2; Dr. Manjusha Gupta as PW3; Dr. Sanjeev Saran as PW4; Bhagwati, complainant as PW5; Sh. Harish Chand as PW6; Sh. Vijay as PW7; Ct. Gulbir Singh as PW8; HC Vinod as PW9; Sh. Babu Ram Retired ASI as PW10; Sh. Keshav Dutt as PW11; Ct. Raj Kumar as PW12; Retired SI Khyali Ram as PW13; and ASI Kanta Prasad as PW14.
5. After closing of prosecution evidence statements of accused persons u/s 313 Code of Criminal SC No.66/09 State Vs. Khemanand & Ors. Page 5 of 37 Procedure, here in after referred to as the Code, were recorded. In their statements all the accused persons admitted that on 08.12.2001 Khamanand was married with PW5 Bhagwati according to Hindu rites and customs and after solemnization of their marriage complainant started living in the matrimonial house at premises No. S-288-B, School Block, Shakarpur, Delhi. It was also admitted that Bhagwati had been staying with her parents and her parents were meeting her expenses and expenses of new born child for about two years. It was explained by accused Khemanand that when they went at her parent's house to meet her and for giving some amount of maintenance, they were insulted and they were not allowed to give money. It was also admitted that with the help of Inspector Negi, a compromise between Khemanand and Smt. Bhagwati in writing had taken place and both of them started living in tenanted house at A-73, Seva Sadan, Mandawali, Delhi. It was also admitted that accused Khemanand was formally arrested on 01.02.2007. On surrender in the court, police took his one day police remand and he got recovered dowry articles in the presence of Smt. Bhagwati on 02.02.2007 which were taken into possession vide seizure memo Ex. PW5/C and Ex. PW5/D. Accused Devi Dutt also admitted that he disinherited his son Khemanand and a notice in that regard SC No.66/09 State Vs. Khemanand & Ors. Page 6 of 37 in Rashtriya Sahara (Hindi) was published. Accused also admitted that they were correctly identified by the witnesses. However, they denied rest of the evidence and pleaded that they were innocent.
6. In support of their defence accused Khemanand examined himself u/s 315 of the Code as DW1; Sh. Vishnu Deo Vishwakarma as DW2; Smt. Daizy Saklani as DW3; Sh. Umed Singh as DW4; Sh. D.P. Singh as DW5; Ct. Jitender Kumar as DW6; Sh. Khemanand s/o Parmanand as DW7 and HC Surender Kumar as DW8.
7. After closing of evidence by Counsel for accused persons, I have heard arguments addressed by Ld. Defence Counsel and Ld. Addl. Public Prosecutor and perused the file including written arguments submitted on behalf of accused persons.
CAUSING MISCARRIAGE WITHOUT WOMAN'S CONSENT
8. It would be appropriate to reproduce Sections 312 & 313 IPC. These run as under:
"312. Causing miscarriage.--Whoever voluntarily causes a woman with child to miscarry, shall if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman be quick with SC No.66/09 State Vs. Khemanand & Ors. Page 7 of 37 child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Explanation.-A woman who causes herself to miscarry, is within the meaning of this section.
313. Causing miscarriage without woman's consent.--Whoever commits the offence defined in the last preceding section without the consent of the woman, whether the woman is quick with child or not, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
9. In order to prove its case for the offence punishable u/s 313 IPC, prosecution has to prove, firstly, that miscarriage of a unborn child was caused; and secondly, the accused persons caused the miscarriage without consent of PW5 Bhagwati. Let us examine whether prosecution could prove its case against accused persons that they all or any of them committed the offence of causing miscarriage without woman's consent.
Miscarriage of unborn child of Smt. Bhagwati
10. It has also been argued on behalf of the accused persons that none of the accused persons did any act for miscarriage of the child in the womb of complainant. In fact complainant was suffering from ectopic pregnancy and miscarriage was result of that. As accused persons were not responsible for that so they cannot be held liable for miscarriage of the child in the womb of Bhagwati Devi and SC No.66/09 State Vs. Khemanand & Ors. Page 8 of 37 the accused persons are entitled for acquittal for all the offences.
11. On the other hand, Ld. Additional Public Prosecutor argued that miscarriage occurred due to beatings to complainant Bhagwati by accused persons.
12. PW3 Dr. Manjusha Gupta explained the meaning of ectopic pregnancy. In cross examination she stated that ectopic pregnancy is the extra uterus implantation of developing ovum. It is a natural process. Ectopic pregnancy can never be caused by any human activity. It is not possible that the foetus will jump or move from uterus to fallopian tube. PW4 Dr. Sanjeev Saran explained the meaning of ectopic pregnancy as that pregnancy which is caused at any other area other than uterus. It is a natural process and cannot be caused by any interference of any human being. It cannot be caused by any external injury.
13. PW3 did not support the prosecution case and she was declared hostile. She stated that she had been running a clinic at D-5, Main Road, Khichripur, East Vinod Nagar, Delhi in the name of Manjushah Maternity and Medicare Clinic. About 3-4 years ago, a patient Bhagwati came in her clinic. She was suffering from severe abdomen SC No.66/09 State Vs. Khemanand & Ors. Page 9 of 37 pain. After taking patient's history, due to suspicion of ectopic pregnancy she referred the patient for ultrasound at Dr. Saran Ultrasound Centre. Her diagnose was confirmed and she referred the patient to Virmani hospital for further treatment. She was operated immediately on the same day. In the afternoon she came to know that FIR was lodged by the patient. In response to cross examination conducted by Ld. Additional Public Prosecutor, she stated that she did not remember whether the patient Bhagwati had come to her on 10.12.2006 and told her that her in laws had given beatings and she sustained injuries. She explained that patient might have told those facts. She further stated that she did not state to the police that due to injury the fallopian tube was ruptured and due to which unborn child was got stuck in the fallopian tube. She further stated that she did not state to the police that due to stuck of the child in the fallopian tube there was bleeding or that all those complications had taken place due to sustaining of injuries to the unborn child. In cross examination conducted by Ld. Defence Counsel, she stated that patient was in early pregnancy and it could not be held that there was a foetus as it was merely an early stage of pregnancy.
14. PW4 Dr. Sanjeev Saran deposed that he was SC No.66/09 State Vs. Khemanand & Ors. Page 10 of 37 running a Saran Imaging Lab and Diagnostic Centre at Joshi Colony, Mandawali, Delhi. On 10.12.2006 patient Bhagwati was referred to him by Dr. Manjusha Gupta for ultrasound with alleged history of lower abdomen severe pain. He had conducted ultrasound and prepared his report Mark PW4/A. In the report there are findings of suggestive of ruptured ectopic. It was an emergency case because of ectopic rupture emergency. There was severe bleeding in the pelvis. He advised to operate the patient immediately. A soft tissue mass 76 x 30 mms in size was seen in the left adenexal region with significant amount of free fluid in the pelvis suggestive of ruptured ectopic. He marked out the ultrasound print as Mark PW4/B. In cross examination he stated that there was no external injury as per ultrasound report on the body of patient. He had diagnosed that the patient was suffering from ectopic pregnancy. Entopic pregnancy cannot be caused by any external injury. In the present case, it was gestational sac which caused the rupture of fallopian tube, i.e., called ruptured ectopic pregnancy.
15. PW5 on this aspect deposed that on 09.12.2006 she was in pain during the whole night. In the morning she went to clinic of Dr. Manjusha who sent her to Dr. Saran for ultrasound. Doctor advised her for emergency operation as SC No.66/09 State Vs. Khemanand & Ors. Page 11 of 37 she was in pain and was bleeding. She was operated upon.
In view of the evidence on record and particularly discussed here in above, it is held that prosecution has successfully proved on record that miscarriage of an unborn child of Smt. Bhagwati was caused.
The accused persons caused the miscarriage without consent of PW5 Bhagwati
16. Let us examine the evidence on record to see whether accused persons caused the miscarriage without the consent of PW5 Bhagwati.
17. PW5 Bhagwati on this aspect deposed that on 09.12.2006, in the night the accused persons came there. She was pregnant at that time. They quarreled with her and gave beatings to her. After giving beatings to her, all accused persons, except her husband left and due to the beatings she was in pain during whole night. In the morning time, she was sent in auto by her husband. She went to Dr. Manjusha, who after hearing all the facts disclosed by her, sent her to Dr. Saran for getting ultrasound. After ultrasound, she was advised to be operated upon in emergency and thereafter her operation was conducted. In cross examination she admitted that she gave her consent to doctor of Virmani Hospital for the SC No.66/09 State Vs. Khemanand & Ors. Page 12 of 37 operation as per advice of the doctors. There is no other evidence on record on this aspect.
18. As Smt. Bhagwati has admitted that she gave consent for the operation, i.e., abortion of the unborn child, so it has to be seen whether the miscarriage was caused due to the act and omissions of the accused persons.
19. Ld. Defence Counsel argued that testimonies of prosecution witnesses are not consistent and there are material contradictions and improvements therein. PW5 also made considerable improvements in her statement, besides, making inconsistence and contradictory statement which create doubt in truthfulness of their testimonies.
20. On the other hand, Ld. Additional Public Prosecutor submitted that there was no material inconsistency or contradiction either in the testimony of PW5 or amongst the testimonies of other PWs. He submitted that minor contradictions are bound to happen and these are required to be ignored.
21. In support of his arguments Ld. Additional Public Prosecutor relied on a case Leela Ram (Dead) through Duli SC No.66/09 State Vs. Khemanand & Ors. Page 13 of 37 Chand v. State of Haryana, (SC) 1999(4) R.C.R.(Criminal) 588 : 1999 A.I.R. (SC) wherein the Apex Court Observed:
"9. Be it noted that the High Court is within its jurisdiction being the first appellate court to re-appraise the evidence, but the discrepancies found in the ocular account of two witnesses unless they are so vital, cannot affect the credibility of the evidence of the witnesses. There is bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefor should not render the evidence of eye witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. In this context, reference may be made to the decision of this Court in the State of U.P. v. M.K. Anthony, 1985(1) RCR(Crl.) 88 : AIR 1985 SC 48. In paragraph 10 of the report, its Court observed :
"While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the SC No.66/09 State Vs. Khemanand & Ors. Page 14 of 37 evidence as a whole. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate Court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trival details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals."
22. I have analyzed entire evidence on this aspect. On perusal of material on record, scrutinizing the evidence and considering arguments of Ld. Additional Public Prosecutor for State and Ld. Defence Counsel, I come to the conclusion that prosecution could not established beyond reasonable suspicion and shadow of doubt that all or any of accused were responsible for the miscarriage of unborn child. The reasons which support my decision are firstly that testimony of PW5 Bhagwati is self contradictory, contradictory to the statements of other witnesses on material points. I noticed the contradictions on many points numerated here in below:
Contradictions in testimonies of Prosecution Witnesses Acquaintance with IO Khyali Ram and her daughter
23. PW5 Bhagwati in her cross examination SC No.66/09 State Vs. Khemanand & Ors. Page 15 of 37 admitted that one SI Khayali Ram used to live in her neighbourhood. She denied the suggestion that Santosh daughter of SI Khayali Ram was her friend. She stated that she did not know if SI Khayali Ram was having a daughter, namely, Santosh. Her father deposed in quite contradiction by stating that SI Khayali Ram was not his neighbour. He admitted the suggestion that his daughter Santosh and his daughter Bhagwati studied together.
Residence of Landlord below the Residence of Complainant
24. PW5 Bhagwati deposed that the house number where she had shifted alongwith her husband was A 73 Sewa Sadan, Mandawli. The house consists of three floors. She was living at second floor. She once admitted that landlord also used to reside in that very house but she could not tell the exact floor. She again stated that she did not remember who was residing at first and third floor.
Visit of Clinic/Virmani Hospital
25. PW5 Bhagwati stated that doctor advised her to call her husband to arrange two units of blood as she was to be operated upon. She telephoned her husband but he did not come. Then she informed her brother and her brother informed police at number 100. SI Khayali Ram came from police station. In cross examination once she stated that SC No.66/09 State Vs. Khemanand & Ors. Page 16 of 37 she had made the complaint by dialing number 100 and thereafter SI Khayali Ram had come. She again stated that she did not remember the time when her brother made a call at number 100. Her brother is not a witness in the present case.
26. PW11 father of PW5 Bhagwati deposed that he reached at the Manju Shah Hospital directly from his home when he received an information regarding admission of his daughter. He reached at the Manju Shah Hospital alone. On the other hand PW6 deposed that on 10.12.06 he was sitting at his shop. Keshav Dutt was very perturbed and he was going very fast. He asked him as to what was the matter. As he did not reply so he followed him and then he told that his daughter was admitted in Virmani Hospital. He visited the Virmani Hospital on that day at about 6 or 7 P.M. in the evening. He and Keshav Dutt PW11 reached the Hospital together.
Payment of Bill at Virmani Hospital
27. PW5 Bhagwati deposed that her father spent the money when she was admitted in Virmani Hospital on 10.12.06 but she did not know who made the final payment. Her father PW11 deposed that his son paid the expenses of Rs. 3000/-to the Virmani Hospital. His son is SC No.66/09 State Vs. Khemanand & Ors. Page 17 of 37 not a witness in the present case. PW11 even stated in cross examination that he did not know whether Khemanand asked her daughter to accompany him after her treatment on 15.12.06.
28. My attention goes to a case Ashok Narang v. State, 2012 [1] JCC 482 wherein the Delhi High Court observed that:
"104. If one integral part of the story put forth by witness was not believable, then the entire case failed. It is settled law that where witness makes two inconsistence statements in their evidence either at one stage of both stages, the testimony of said witness becomes unreliable and unworthy of credence and in the absence of special circumstances; no conviction can be based on the evidence of said witnesses. For these reasons, therefore, when learned Trial Judge disbelieved the evidence of prosecutrix and her father in regard to her father, it was not open to him to have convicted the appellant on the same evidence with respect to which suffered from some infirmity for which the said evidence was disbelieved."
29. My attention goes to a case Sunil Kumar Sambhudayal Gupta and Others v. State of Maharashtra, 2011 (1) RCR (Criminal) 57 wherein the Supreme Court observed that:
"16. The discrepancies in the evidence of eye-witnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in convict and contradiction with other evidence or with the statement already SC No.66/09 State Vs. Khemanand & Ors. Page 18 of 37 recorded, in such a case it cannot be held that prosecution proved its case beyond reasonable doubt. (Vide: Mahendra Pratap Singh v. State of Uttar Pradesh, 2010(5) R.C.R. (Criminal) 513: (2009) 11 SCC 334)." [Emphasis supplied]
30. My attention goes to a case Babu Lal and Others v. State, 1994 JCC 111 wherein, the Delhi High Court observed that:
"10. As far as these appellants, namely Babu Lal, Arjun Das and Leela Ram are concerned, there are material contradictions in the statements of the two injured, Om Parkash and Bhagwan Das who are the real brothers. The other alleged eye witnesses have also contradicted themselves on the most material points and the contradictions cannot be said to be minor and have occurred on account of passage of time. Moti Lal, PW13 on whose statement the case was registered has also not supported the case of prosecution in as much as he has denied that he has seen the incident or he saw these appellants giving injuries to the injured.*** There are serious lapses in the prosecution story in connecting these appellants with the offence. The story put up by the prosecution as far as these appellants are concerned, is unbelievable and doubtful. The weapon of offence, Rampi, was not sent to the doctor for examination, as such the doctor has not stated that these injuries could have been caused by the Rampi."
31. It has to be seen, if the above referred contradictions can be termed as minor contradictions or these are the contradictions on material points which may create any doubt about the genuineness of the occurrence under adjudication and commission of alleged offences.
SC No.66/09 State Vs. Khemanand & Ors. Page 19 of 37After carefully scrutinizing the evidence available on record, I am of the view that the principles of law laid down in Leela Ram (Dead) through Duli Chand v. State of Haryana, (supra), are not applicable in the present case. I am of the view that principles of law laid down in case Ashok Narang v. State, (supra), Sunil Kumar Sambhudayal Gupta and Others v. State of Maharashtra, (supra), Babu Lal and Others v. State, and are applicable on the facts of present case. The discrepancies in the testimonies of the prosecution witnesses particularly mentioned here in above have created doubt in the truthfulness of the prosecution case. I am, therefore, convinced that arguments of Ld. Defence counsel are sustainable. Accordingly, it is held that the prosecution could not prove beyond suspicion and reasonable doubt that all or any other accused are responsible for causing miscarriage of an unborn child of Bhagwati. The other reason of this decision is that PW4 Dr. Sanjeev Saran supported the defence case by deposing that ectopic pregnancy is that pregnancy which is caused at any other area other than uterus and it is a natural process and it cannot be caused by any interference of any human being or by any external injury.
SC No.66/09 State Vs. Khemanand & Ors. Page 20 of 37CRUELTY BY HUSBAND AND RELATIVE OF HUSBAND
32. It would be appropriate to reproduce Section 498A IPC which run as under:
"498A. Husband or relative of husband of a woman subjecting her to cruelty.--Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.-For the purposes of this section, "cruelty"
means-
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."
33. The prosecution in order to prove its case against accused persons for the offence of cruelty by husband or his relatives punishable u/s 498-A/34 IPC has to prove that accused persons being husband or relative of husband of PW5 Bhagwati subjected her to cruelty. That cruelty was inflicted or committed either by any willful conduct by husband Khemanand or his family members namely Devi Dutt, being father in law, Bhagwati, being SC No.66/09 State Vs. Khemanand & Ors. Page 21 of 37 mother in law, Tara Chand, being Jeth, Kamal Kishore, being brother in law, Nirmala, being jethani with a view to coerce her or any person related to her to meet any unlawful demand for any property or willful conduct which is of such a nature as is likely to cause grave injury or danger to life, limb or mental or physical health of Smt. Bhagwati.
34. It has also been argued that there has been delay for about 180 days in lodging of FIR and that has also created doubt about the truthfulness of the prosecution case. It has also been argued that no specific incident of harassment or cruelty on the person of complainant Smt. Bhagwati by accused persons has been proved by the prosecution on record, besides, when the complainant Bhagwati re-joined the matrimonial home, the previous allegations of harassment or cruelty stood condoned.
35. On perusal of material on record, scrutinizing the evidence and considering arguments of Ld. Additional Public Prosecutor for State and Ld. Defence Counsel, I come to the conclusion that prosecution could not established beyond reasonable suspicion and shadow of doubt that all or any of accused subjected PW5 Bhagwati to cruelty or harassment either by her husband or by any relative of her husband and such cruelty or harassment SC No.66/09 State Vs. Khemanand & Ors. Page 22 of 37 was in connection with demand of dowry or willful conduct which is of such a nature as is likely to cause grave injury or danger to life, limb or mental or physical health of Smt. Bhagwati. Although PW5 in her examination in chief stated that she was married with accused Khemanand on 08.12.2001 according to Hindu rites and customs. All the accused persons were not happy with the marriage as according to them the marriage was not performed as per their expectations. All the accused persons demanded Rs.2 lac as business of computer had to be started for her husband. Her father was not in a position to give Rs.2 lacs to accused persons as he retired from the government service and demand of the accused was beyond his capacity. Thereafter, accused persons started quarreling with her for not fulfilling their demand of Rs.2 lacs. Accused persons also gave beatings to her and their attitude towards her continued. On 18.02.2004 when she was pregnant, all the accused persons gave beatings to her and she was thrown out of the house. She came to her parental house where she delivered a female child. All the expenses were borne by her parents. On 29.10.2006 her husband Khemanand came to her parental house to take her and her new born child and after a compromise in writing with the help of Inspector Negi she started living in tenanted house at A-73, Sewa Sadan, Mandawali, Delhi.
SC No.66/09 State Vs. Khemanand & Ors. Page 23 of 37After some days, accused persons Tara Chand, Kamal Kishore, Bhagwati, Nirmala Devi, Devi Dutt used to come there and used to beat her. On 20.11.2006 all the accused persons again gave beatings to her as their demand of Rs. 2 lacs was not fulfilled. On 09.12.2006 accused persons came at above mentioned tenanted house of complainant and quarreled with her. She was pregnant at that time. She was beaten. She remained in pain over the night and on next day she was operated upon as she started bleeding and miscarriage was caused to her child. Yet her testimony remained self contradictory as in cross examination she admitted that she did not lodge any complaint with the police since her marriage till the present complaint on the basis of which present case was registered. She admitted that she did not state to the doctor Manjusha regarding allegations levelled by her against her husband on 09.12.2006 regarding giving beatings to her by her husband and inlaws on that day.
36. Secondly, none of the other prosecution witness supported her case in this respect. Although in case Balia alias Balaram Behera and another v. State of Orissa, 1994 CRI. L.J. 1907, it was held that conviction on the solitary testimony of a witness can be based provided it is consistent and get support from the other prosecution SC No.66/09 State Vs. Khemanand & Ors. Page 24 of 37 evidence. In the present case that will not provide any benefit as PW5 even failed to give any specific instance of harassment or demand of dowry. The incident of 09.12.2006 was found untrue. She levelled only general allegations. Therefore, it is wholly unsafe to rely on the sole testimony of PW5 Bhagawati.
37. Thirdly, instead of supporting the statement of PW5 Bhagwati, her father PW11 contradicted her statement in respect of demand of dowry. He stated that he was not told by his daughter about the demand of Rs.2 lac made by the accused at his house. He again stated that the demand of Rs.2 lac was made by the family members of husband of his daughter as well as her husband but neither he asked her daughter about the name of persons who demanded Rs.2 lac nor she disclosed anything in that regard. His daughter never disclosed to him about the date time about the said demand. In cross examination, he even stated that neither Khemanand nor any of his family members had made any demand from him.
38. Fourthly, the contradictions found in the testimonies of prosecution witnesses, which has been discussed here in above, has created doubt about the truthfulness of the alleged demand of dowry or harassment SC No.66/09 State Vs. Khemanand & Ors. Page 25 of 37 or cruelty meted out to her for not fulfillment of said demand.
39. Fifthly, PW5 Bhagwati in her cross examination admitted that compromise had taken place between her and her husband Khemanand on 29.10.06. She did not lodge any complaint in any police station till she remained in her parents' house from 18.02.04 to 28.10.06. That shows that she condoned all the allegations, if any against the accused persons. Besides, the date of her complaint Ex.PW5/A and Ex.PW5/B is 28.12.2006. FIR was recorded on the same day. Thus, there is inordinate unexplained delay in reporting the matter to police.
40. Sixthly, prosecution case has also been demolished by DW3 Smt. Daizy saklani, sister in law of PW5 Smt Bhagwati. She deposed that she was married with Ramesh chand shaklani, brother of complainant on 27.04.2003. She stated that Khemanand came to the house of complainant Bhagwati many times to take her back. Her parents refused to send her back with Khemanand. She did not hear anything about the family members of Khemanand in the house of her in laws. Complainant Bhagwati never made any complaint to her against Khemanand or his family members. She did not tell SC No.66/09 State Vs. Khemanand & Ors. Page 26 of 37 anything regarding Khemanand and his family members to any of her family members in her presence. She did not notice any abnormal behaviour in complainant Bhagwati. In cross examination nothing could out which may create doubt about the truthfulness of her testimony.
41. Seventhly, PW7 did not support the prosecution case. He deposed that Khemanand used to reside in his house No.73, Sewa Sadan Block, Mandawali, Fazalpur, Delhi as a tenant. Initially he used to live alone and subsequently, one lady alongwith one baby started living with him. No police case against Khemanand was initiated to his knowledge till he remained as a tenant in his house. He did not know anything about the present case. He was declared hostile. Even in cross examination conducted by Ld. Additional Public Prosecutor, he failed to support the prosecution case. He stated that police did not make any inquiry from him in February 2007 with regard to Khemanand and his family. He never told the police that on 09.12.2006 parents, brother, sister in law and younger brother came in the house and quarreled with Smt. Bhagwati. He never told to police that they demanded Rs.2 lacs from Bhagwati and Bhagwati showed inability of her father to fulfill their demand or that thereafter all of them gave beating to her or in the next morning they turned out SC No.66/09 State Vs. Khemanand & Ors. Page 27 of 37 Bhagwati from their house after abusing her. In cross examination he stated that there were cordial relations between Khemanand and his wife. None even from the family of wife of Khemanand used to visit them.
42. Eighthly, the evidentiary value of testimony of defence witness is equivalent to the testimony of prosecution witness as per principles of law laid down in case Pradeep Saini & Anr. v. State, 2010 IV AD (Delhi) 232, wherein the Delhi High Court observed that:
"51. Depositions of witnesses, whether they are examined on the prosecution side or defence side or as court witnesses, are oral evidence in the case and hence the scrutiny thereof has to be without any predilection or bias. No witness is entitled to get better treatment merely because he was examined as a prosecution witness or even as a court witness. It is judicial scrutiny which is warranted in respect of the depositions of all witnesses for which different yardsticks cannot be prescribed. As observed by Supreme Court in the decision reported as Dudh Nath Pandey Vs. State of UP AIR 1981 SC 911:-
".....Defence witnesses are entitled to equal treatment with those of the prosecution; and courts ought to overcome their traditional instinctive disbelief in defence witnesses......"
43. DW1, husband of Smt. Bhagwati deposed that he and his family members never demanded any dowry from the complainant or her family members they never beat the complainant at any point of time. Although, he was extensively cross examined by Ld. Addl. Public SC No.66/09 State Vs. Khemanand & Ors. Page 28 of 37 Prosecutor yet nothing could come out to prove that either he or his family member demanded any dowry particularly Rs. Two lac from the complainant or her family members. He also produced the bill of Virmani Hospital and proved it as Ex.DW1/D. On perusal of this bill I find that a sum of Rs. 22,000/- (Rupees Twenty Two Thousand only) was paid by accused Khemanand on 15.12.2006 for admission and treatment of Smt. Bhagwati from 10.12.2006 to 15.12.2006. He also produced the discharge summary issued by that hospital as Ex.DW1/E. When Smt. Bhagwati declined to accompany him to her matrimonial home, he informed the police control room and proved that communication as Ex.DW1/F and also handed over a written application to SHO, PS Mandawali and proved as Ex.DW1/G. He has also filed and proved a number of documents. His testimony is as valuable as testimony of complainant. This has created doubt about the truthfulness of the prosecution case.
44. Ninethly, DW4 deposed that he was residing adjacent to the house of Khemanand. He had not seen Khemanand and his wife indulging in quarrel. He never heard any sound showing that his wife was beaten by him or his family members in 2003 father of complainant took her forcibly from the matrimonial home from S-288, School SC No.66/09 State Vs. Khemanand & Ors. Page 29 of 37 Block, Shakarpur, Delhi. This has also supported the defence of the accused persons.
45. Tenthly, on examination of all the material evidence on record, I found that none of the material witnesses including family members of Bhagwati deposed that all or any of the accused persons harassed or ill- treated or taunted or coerce her to bring dowry or cruelty was meted out to her so as to coerce her to bring dowry from her parents or the accused persons caused grave injury or danger to her life, limb or mental or physical health.
46. Lastly. it is one of the basic principles of criminal jurisprudence that let hundreds of criminals may go unpunished but one innocent person should not be punished. It would be just fair and appropriate, if accused are given benefit of doubt as the prosecution has failed to prove its case against accused persons beyond any reasonable suspicion and shadow of doubt.
CRIMINAL BREACH OF TRUST
47. It would be appropriate to reproduce Section 405 IPC which run as under:
SC No.66/09 State Vs. Khemanand & Ors. Page 30 of 37405. Criminal breach of trust.--Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust".
48. The prosecution in order to prove its case against accused Khemanand, for the offence of criminal breach of trust punishable u/s 406 IPC, has to prove that accused Khemanand was entrusted with dowry articles or he was with any dominion over dowry article and that he dishonestly misappropriated or converted that property to his on use.
49. On perusal of material on record, scrutinizing the evidence and considering arguments of Ld. Additional Public Prosecutor for State and Ld. Defence Counsel, I come to the conclusion that prosecution has also failed to prove that accused Khemanand misappropriated the dowry articles mentioned in list Ex.PX. The reasons which support my decision are firstly that PW5 Bhagwati in her statement deposed that on 10.12.2006 she went to clinic of Dr. Manjusha and after her operation she went to her parent's house. She could not answer as to who paid the final bill of SC No.66/09 State Vs. Khemanand & Ors. Page 31 of 37 the hospital. She even deposed that she was still wanted to live with her husband Khemanand.
50. Secondly, Ex.PW3/C is the list of articles which were seized by the police. All these articles are either household articles or the clothes generally used in the family. Ex.PW5/F is a list of articles which were allegedly given in the marriage to PW5 Bhagwati. Ex.PW5/G is the detail of expenditure made in the marriage. PW11 in his cross examination admitted that he had spent Rs.50,000/-
to Rs.60,000/- in purchase of the dowry articles but he do not possess any receipt thereof. The total amount spent by him in the marriage of his daughter Bhagwati was about 1 or 1.5 lacs. He was a government servant and he was serving as a waterman in the income tax office. He was having four children. Two sons and two daughters. The evidence on record has established that marriage of PW5 and Khemanand was a simple marriage and only customary articles which are usually given to the bribe were given in the marriage. She was the complainant PW5 Bhagwati who left her matrimonial house in the situation discussed here in above. There is nothing on record to show that marriage between them is not in existence. Statement of PW5 is silent that she demanded the above mentioned dowry articles and her husband Khemanand SC No.66/09 State Vs. Khemanand & Ors. Page 32 of 37 refused to handover the same to her. She only deposed that some dowry articles as mentioned in Ex.PW5/C were recovered by the police from the house of accused. Thus, prosecution has failed to prove the ingredients of offence of criminal breach of trust.
51. Thirdly, I have analyzed the other evidence on record. Remaining prosecution witnesses are of formal in nature, i.e., PW1 & PW2 proved copy of personal search memo and arrest memo of accused Devi Dutt, Bhagwati, Nirmala Devi and Kamal. PW8 & PW12 are witnesses of recovery of dowry articles and seizure thereof vide memo Ex.PW5/C and Ex.PW5/D. PW9 has proved copy of FIR Ex.PW9/A. PW10 proved endorsement on the complaint as Ex.PW10/A. PW13 is IO SI Khayali Ram and PW14 is another IO ASI Kanta Prasad. Thus, their testimonies could not prove ingredients of criminal breach of trust or the offences mentioned here in above.
52. Fourthly, DW1 deposed that list of articles filed by the complainant was false. DW2 deposed that one day PW5 Bhagwati proposed to her to handover all jewellery including gold jewellery to her mother in law on the pretext that she had also handed over all her jewellery to her mother. This has further supported the defence of the SC No.66/09 State Vs. Khemanand & Ors. Page 33 of 37 accused persons.
53. Fifthly, accused persons have proved a writing of PW5 Bhagwati as Ex.DW1/A. The writing is as under:
"main Bhagwati jab 8 May, apna sasural chhodkar apne pita ke saath apna saman lekar (kapde aur sone (gold) ke jewar) apne mayke chali gai thi aur tin mahine aath din ke baad jab main apne pati ke saath rehne ke liye apne kiraye ke makan main aai tab main sirf apne kapde hi lekar aai thi aur apne sone ke jewar ko apne mayke main hi chhod kar aai thi aur abhi tak main unhe lekar nahin aai hoon."
(On 8 May when, I Bhagwati went to home of my parents and when I left my matrimonial home, I had taken my goods (clothes and gold jewellery) with me. Now after three months and eight days I have come to live with my husband in a rented home. I have brought only my clothes and I have left my gold jewellery at my parent's home. I have not yet brought those.) This has also supported the case of defence that all the valuables were taken by PW5 Bhagwati and these were not with accused Khemanand.
54. Lastly, in a case reported as Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, it was inter alia held by Apex court that:
"It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt."SC No.66/09 State Vs. Khemanand & Ors. Page 34 of 37
The principles of law laid down in above case are applicable on the facts of present case and therefore, it is held that accused persons are entitled to get benefit of doubt as in the present case two views, one, leads to their innocence and another leads to their involvement in the crime are possible.
55. In view of the reasons and discussion mentioned here in above, the prosecution could not prove its case against accused Khemanand for the offence of criminal breach of trust punishable u/s 406 IPC.
CONCLUSIONS
56. Consequent upon the above reasons, discussion and evidence on record and particularly discussed here in above, it is held that the prosecution could not prove beyond suspicion and reasonable doubt that all or any other accused persons are responsible for causing miscarriage of an unborn child of Bhagwati or they all or any of them committed offence punishable u/s 313 IPC.
57. It is further held that the prosecution has failed to prove beyond reasonable suspicion and shadow of doubt that PW5 Bhagwati was meted out with cruelty or SC No.66/09 State Vs. Khemanand & Ors. Page 35 of 37 harassment by her husband Khemanand and relative of her husband, Devi Dutt, father in law, Smt. Bhagwati Devi, mother in law, Smt. Nirmala Devi, sister in law and Tara Chand, brother in law, and Kamal Kishore, brother in connection with demand of dowry or by their willful conduct all or any of them caused grave injury or danger to life or limb or mental or physical health of Smt. Bhagwati or they all or any of them committed offence of cruelty by husband or his family members.
58. It is further held the prosecution has failed to prove beyond reasonable suspicion and shadow of doubt that accused Khemanand committed an offence of criminal breach of trust punishable u/s 406 IPC.
59. Accordingly, accused persons namely Khemanand, Tara Chand, Kamal Kishore, Bhagwati Devi, Nirmala Devi, and Devi Dutt are acquitted for the offences punishable u/s 313/498A/34 IPC by giving them benefit of doubt. Accused Khemanand is also acquitted for the offence of criminal breach of trust punishable u/s 406 IPC by giving him benefit of doubt.
60. However, in view of provisions of Section 437 A Cr.P.C. all accused persons are directed to furnish bail SC No.66/09 State Vs. Khemanand & Ors. Page 36 of 37 bonds/surety bonds in the sum of Rs.10,000/- with one surety of like amount for the period of six months within a week.
61. After furnishing of surety bonds, file be consigned to Record Room.
Announced in the open court on 21.11.2012 (DR. T.R. NAVAL) Addl. Sessions Judge-02 East District,KKD Courts,Delhi SC No.66/09 State Vs. Khemanand & Ors. Page 37 of 37