Himachal Pradesh High Court
Anju Bala Jain vs Sanjeev Gupta And Ors on 5 December, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 103 of 2010.
Date of Decision: 5.12.2016.
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___________________________________________________________
[
Anju Bala Jain .........Petitioner.
Versus
Sanjeev Gupta and Ors. ............Respondents.
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
of
Whether approved for reporting1?
For the petitioner: Mr. Megha Gautam, Advocate.
For the respondents:
rt Mr. Y. Paul, Advocate.
____________________________________________________________________
Sandeep Sharma, J. (Oral)
The present criminal revision petition filed under Sections 397 & 401 read with Section 482 of the Cr.PC, is directed against the judgment of acquittal dated 27.1.2010, passed by the learned Judicial Magistrate Ist Class, Court No. 2, Nalagarh, District Solan, HP, in Criminal Case No. 13/2 of 09/2008, whereby the respondents-accused are acquitted of offence punishable under Section 498 of the IPC read with Section 34 of the IPC.
2. Briefly stated facts as emerge from the record are that the petitioner preferred a complaint before the police, on the basis of which, formal FIR was lodged against the respondent accused. The complainant in aforesaid FIR reported that she solemnized marriage Whether reporters of the Local papers are allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 21:41:06 :::HCHP -2-with respondent on 28.5.2006, according to Hindu Rites and Customs prevalent in the area. She further stated that after marriage, the .
respondents, who are husband, sister in law and mother in law respectively, started treating her with cruelty while making demand for dowry. As per the complainant, accused persons apart from demanding money also used to demand vehicle. The complainant of further complained that though she had fulfilled the demand of money but accused despite that insisted upon her to bring the vehicle. Since the complainant informed the accused that her parents cannot fulfill rt the demand of vehicle, accused started beating her. As per own version of the complainant, on 25.4.2007, she gave birth to a daughter and even thereafter accused continued demanding dowry, as a result of which, on 14.11.2007, she left her matrimonial house. She further complained that on 7.12.2007, accused persons telephonically demanded the vehicle and matter was reported to the police. On the basis of her statement Ext.PW1/B, formal FIR Ext.PW4/A came to be registered against the accused persons. During investigation, police taken into custody letter Ext.PW1/A i.e. letter written by the complainant to her mother stating therein that she is being maltreated by her husband, Sister in law and mother in law. It further discloses that accused insisted upon her to bring Rs. 50-60,000/-. It also suggests that 50,000/- was paid to the complainant but there is no mention, if any, ::: Downloaded on - 15/04/2017 21:41:06 :::HCHP -3- with regard to the demand of vehicle as alleged by the complainant in her statement recorded under Section 154 Cr.PC. Police after .
recording the statement of witnesses under Section 161 of Cr.PC completed the investigation and presented the Challan, before the competent court of law.
3. Learned Judicial Magistrate, Ist Class, Court No.2, of Nalagarh, District Solan, (HP), after satisfying itself that prima facie case exists against the accused, put a notice of accusation, to which they pleaded not guilty and claimed trial. Subsequently, learned trial Court rt on the basis of evidence adduced on record by the prosecution, acquitted the respondents-accused of the charges under Section 498 read with Section 34 of the IPC vide judgment dated 27.1.2010.
4. The present petitioner-complainant being aggrieved with the judgment of acquittal passed by the learned trial Court, approached this Court directly by invoking jurisdiction of this Court under Section 397/401 of Cr.PC, praying therein for punishing the respondents-accused after setting aside the judgment of acquittal recorded by the Court below. At this stage, it may be noticed that State has not filed any appeal against the judgment of acquittal passed by the court below and it is the complainant who has come to this Court by way of present criminal revision petition.
::: Downloaded on - 15/04/2017 21:41:06 :::HCHP -4-5. Ms. Megha Gautam, Advocate, representing the petitioner vehemently argued that the impugned judgment of acquittal passed .
by the Court below is not sustainable as the same is not based upon the correct appreciation of evidence available on record, as such, same deserves to be quashed and set-aside. While referring to the judgment passed by the court below, Ms. Megha, invited attention of of this Court to the statements of PWs to demonstrate that the court below has given undue importance to the minor contradictions in the statements of witnesses without realizing that in such type of matters rt verbatim evidence is not required to be corroborated because in such like cases victim are always under depression due to maltreatment and demand of dowry raised by their in-laws. She forcefully contended that in the instant case, moot question before this Court was whether the proseuciton was able to prove that victim was given maltreatment and there was a demand of dowry or not. As per her, in the instant case, there is/was overwhelming evidence suggestive of the fact that the complainant was repeatedly treated with cruelty by her in-laws for dowry. While inviting attention of this Court to the letter Ext.PW1/A, Ms. Megha, strenuously argued that this document was sufficient to conclude that the petitioner accused was repeatedly subjected to cruelty by the accused, who repeatedly insisted upon her to bring dowry either in the shape of money or vehicle. While concluding her ::: Downloaded on - 15/04/2017 21:41:06 :::HCHP -5- arguments Ms. Mega, forcefully contended that court below miserably failed to decide the present matter strictly in terms of the evidence .
available on record and as such, great prejudice has been caused to the petitioner. She further stated that petition deserves to be accepted after setting aside the judgment of acquittal recorded by the court below.
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6. Per contra, Mr. Y.Paul, Advocate, representing the respondent-accused supported the impugned judgment passed by the court below.
rt Mr. Paul while referring to the judgment passed by the court below vehemently argued that bare perusal of the same clearly suggests that the same is based upon the correct appreciation of evidence adduced on record by the prosecution and there is no illegality and infirmity in the same and as such, same deserves to be upheld. While inviting attention of this Court to the judgment passed by the learned trial Court, he strenuously argued that court below have very meticulously dealt with each and every aspect of the matter and in the given facts and circumstances of the case, no interference, whatsoever, of this Court, is warranted. With a view to refute contentions having been put forth by the counsel representing the petitioner, Mr. Paul invited attention of this Court to the statements of PW1 and PW2 to demonstrate the material contradictions in the statement having been made by the aforesaid PWs who were ::: Downloaded on - 15/04/2017 21:41:06 :::HCHP -6- admittedly daughter and father. Mr. Paul further argued that bare perusal of statement of PW2 i.e. father of the complainant, nowhere .
suggests that at any point of time, demand, if any, for cash or vehicle was made to him by the accused. He further argued that his statement nowhere suggests that the complainant at any point of time told her father that she is maltreated for want of dowry. In the of aforesaid background, Mr. Paul reminded this Court of its limited powers while exercising its revisionary powers under Section 397 of the Cr.PC to re-appreciate the evidence, especially when it stands duly rt proved on record that the court below has dealt with each and every aspect of the matter very meticulously. In this regard, reliance is placed upon the judgment passed by Hon'ble Apex Court in case "State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri" (1999)2 Supreme Court Cases 452, wherein it has been held as under:-
"In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice."::: Downloaded on - 15/04/2017 21:41:06 :::HCHP -7-
7. Mr. Paul, prayed for dismissal of the present petition being sheer abuse of process of law.
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8. I have heard learned counsel for the parties as well carefully gone through the record
9. True, it is that this Court has very limited powers under Section 397 Cr.PC while exercising its revisionary jurisdiction but in the of instant case, where accused has been convicted and sentenced, it would be apt and in the interest of justice to critically examine the statements of the prosecution witnesses solely with a view to ascertain rt that the judgment passed by learned court below is not perverse and same is based upon correct appreciation of the evidence on record.
10. As far as scope of power of this Court while exercising revisionary jurisdiction under Section 397 is concerned, the Hon'ble Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 Supreme Court Case 241; has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order. The relevant para of the judgment is reproduced as under:-
8. The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, ::: Downloaded on - 15/04/2017 21:41:06 :::HCHP -8- upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court .
must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/ incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order."
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11. As per statement of complainant i.e PW1, after 10-15 days of her marriage accused started demanding dowry. It may be noticed rt that marriage was solemnized on 28.5.2006, whereas complaint to the police, which culminated into present proceedings was reported to the police in year, 2007 i.e. after one and half year of marriage. It has also come in her statement that she gave birth to a daughter on 25.4.2007 but even after that accused teased her for giving birth to a daughter. It has also come in her statement that on 25.4.2007, she gave birth to a female girl and thereafter, accused continued demanding dowry, as a result of which, on 14.11.2007, she left her matrimonial house and started living at her father's house at Baddi. But it may be noticed at this stage that while leaving her matrimonial house on 14.11.2007, she left her 7 months old daughter with in-laws and in this regard, explanation offered on behalf of the petitioner complainant is that since she was given severe beatings, she was unable to bring her daughter. Perusal of aforesaid undated letter Ext.PW1/A suggests that ::: Downloaded on - 15/04/2017 21:41:06 :::HCHP -9- the complainant informed her mother that since her marriage i.e. 2½ months back, accused i.e. her husband, mother in law and sister in law .
started maltreating her and demanded dowry. Letter further suggests that on the insistence of accused petitioner, complainant gave Rs.50,000/- to the accused which she had brought from her mother on 9.7.2006.
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12. After carefully perusing aforesaid letter Ext.PW1/A, this Court has no hesitation to conclude that instant letter is fabricated and has been manufactured with a view to prove the case of dowry rt against the respondent-accused. It will be profitable to reproduce the contents of letter herein below:-
" Mummy Ji, mei yaha par atyant dukhi hu. 2½ mahine se jabse meri shaadi hui hai mere pati sanjeev kumar meri nanad or meri saas teeno mujhe bahut tang karte hai. Saara din teene maarte hai or maarne tak ki bhi naubat aa jati hai. Baki sara sara din khana bhi nahi dete or kamare mei band kar dete hai. Mujhe bar bar apne ghar se 50-60,000/- rupaye lane ke liye kehte hai. Pachas Hajzar Rupay mene inhe de diye the jo apne mujhe 9.7.2006 ko baddi se aate samay diye the dubara lane ke liye kehte hai. Agar mana karo to jaaan se maarne ki dhamki dete hai. Ek enka rishtedar jo ki police mei hai uska naam lekar dhamkiya dete hai, ki tere papa or taaye, chacho ko andar karva denge or enhone jabardashi kuch plain kagajo par mujhse dastkhat karwakar rakhe hue hai. Mummy jo aap kehte hai ki telephone par bat kar liya kar to mujhe telephone par bat karne se paabandi lagai hui hai mujhe kisi prakar se koi kharcha nahi dete baki mera jewar, sara bhi enhone lekar rakh liya hai meri saas or nanad to bat- bat mei larane ke bahane dekhti rehti hai mei apne pati ko kehti hu to vah mujhe bahut maarte hai or mei apne sasur ko en sab ke bare mei kehti hu to vah meri bat nahi sunate or mujhe dhamkate hai or kehte hai agar tune apne ghar par bataya to tujhe jaan se mar dalaenge. Achha mummy ab band karti hu."::: Downloaded on - 15/04/2017 21:41:06 :::HCHP
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13. At the risk of repetition, it may be observed that aforesaid the letter Ext.PW1/A is undated but postal stamp affixed on this letter .
suggests that either same was received at Pihova on 17.8.2006 or it was sent from Pihova on 17.8.2006. There is no stamp of other post office and as such it is difficult to conclude that same was delivered at Baddi i.e. house of father of the complainant. But contents of letter falsify the of case of the complainant that she had sent communication to her mother stating therein with regard to maltreatment having been given to her by her in laws. Perusal of aforesaid lines of the letter suggests rt that same was written after 2 ½ months of marriage i.e. 28.5.2006, whereas in the later part of the letter, the complainant has mentioned that she has paid Rs. 50,000/- to the accused which she had brought on 9th July, 2006 from Baddi from her mother. If date of postal receipt is taken to be correct i.e. 17.8.2006, version put forth by the complainant that since her marriage i.e. two and half months back, she is being treated with cruelty by the accused, is incorrect on the face of it since there is no date on it.
14. This Court after seeing postal receipt can safely presume that same was written in the month of August, 2006 i.e. after 2 ½ months of marriage. But if other contents of letter are examined and analyzed, it clearly suggest that the complainant brought some money on 9th July, 2006, from baddi, where her parents resides. After carefully ::: Downloaded on - 15/04/2017 21:41:06 :::HCHP
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perusing the aforesaid letter, this Court can presume and infer that since the complainant was under great stress, she would have definitely .
informed her parents about continuous maltreatment having been effected upon her by the accused. Since, the complainant herself stated in the letter that since her marriage she is being maltreated by the petitioner accused for dowry, it is not understood why despite there of being aforesaid letter written by the complainant, parents of complainant kept mum and did not initiate any action against the accused. Perusal of aforesaid letter suggests that the complainant was rt under house arrest in the house of the in-laws, but it is not understood that how she was allowed to visit her parents house in July, 2006 when on 9.7.2006, she came with money, which she ultimately handed over to the accused. PW1 in her cross-examination admitted that her uncle Sohan Lal Gupta resides at Pihowa for last 10-12 years. She also admitted that her-in-laws' house is at a distance of 2km from her uncle's house. She also stated that when she was being beaten by the accused, 2-4 persons assembled at spot but interestingly, none of them have been cited as prosecution witnesses to prove the case of the prosecution. In the next breath, she stated that she never disclosed about beatings to any of her neighbors. At this stage, taking clue from the aforesaid submissions having been made by the petitioner complainant, that her uncle resides at a distance of 2 kms from the ::: Downloaded on - 15/04/2017 21:41:06 :::HCHP
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house of her in-laws, this Court really finds it difficult to understand that how aforesaid factum of maltreatment having been given to the .
complainant never came to the notice of her uncle, who admittedly resided near the house of her in-laws. It also emerged from record that when she had to deliver the child, she was got admitted in the hospital by her husband. She gave birth to a female child on 25.4.2007 and of thereafter, left her matrimonial house on 14.11.2007 i.e. nearly 7 months after delivering the child. In her cross examination, she while responding to the suggestion that she purposely did not take her child rt to her matrimonial house, stated that in-laws did not give custody of the child to her. Aforesaid admission having been made by her completely belies her own statement, where she stated that she was unable to bring the child on 14.11.2007 since she was subjected to the beatings and she was unable to bring along her daughter. She further stated that in laws used to demand cash, vehicle and gold but she herself stated that she does not know about the cash having been given by her father to the accused.
15. At this stage, it may also be noted that original letter Ext.PW1/A was not placed on record and no explanation worth the name for not placing the same has been rendered on record. As is noticed above, aforesaid letter is undated and with certainty, it cannot be stated that on which date, actually it was sent. Though, postal ::: Downloaded on - 15/04/2017 21:41:06 :::HCHP
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stamp affixed on letter suggests that same was either delivered on 17.8.2006 at Pihowa or same was sent on the same date. Similarly, .
there is no other postal stamp of post office, which either received or sent letter to destination, hence, this Court really finds it difficult to accept the same to be correct. Rather after perusing the contents of the letter, this Court deems it fit to term the same an afterthought on of the part of the complainant that too with a view to strengthen her case of dowry against the respondent accused. PW2 father of the complainant also corroborated the version put forth by PW1 that her rt marriage was solemnized with Sanjeev Gupta on 28.5.2006. This witness stated that her daughter was treated with cruelty for demand of dowry. Though in his statement, he stated that he was informed telephonically about the demand of dowry but he nowhere stated that who made demand of dowry. It is not clear either the complainant told her father about the demand of dowry or respondent-accused directly demanded dowry from him. In his cross-examination, he stated that efforts were made for compromise in Panchayat. He further stated that even after recording the FIR, Panchayat meeting was held but despite that his daughter was beaten by her in-laws.
16. At this stage, it may be observed that while sifting the evidence on record, this Court was unable to find any document suggestive of the fact that matter was reported to Panchayat and ::: Downloaded on - 15/04/2017 21:41:06 :::HCHP
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thereafter, complainant was sent to her in-laws house. There is no dispute with regard to marriage of the complainant with respondent .
No.1, but this Court after care carefully examining the aforesaid evidence available on record, is of the view that both the PWs contradicted each other and PW1 adopted totally contrary approach/stand to what complainant had actually stated while of getting FIR Ext.PW4/A registered with the police. In FIR Ext.PW4/A she stated that she had paid Rs.50,000/- to the respondents in lieu of their demand for dowry but there is nothing that in what kind of currency, rt she paid such money. Perusal of FIR nowhere suggests that at the first instance, petitioner reported to the police that accused demanded currency notes of Rs. 50,000/- but later on while making statement before court, she stated that accused harassed her to pay Rs. 50,000/-.
17. In the instant case, this Court finds that FIR was registered on the allegation of the complainant after more than one year of the marriage, hence, court below rightly concluded that it can be accepted that the complainant could not mention relevant facts in FIR.
But similarly, in the FIR, the complainant got recorded that accused were demanding vehicle as dowry but neither PW1 nor PW2 while making statements before the Court stated that vehicle was demanded by the respondent accused. Similarly, this Court finds that there is no mention, if any, in the statement of PW2 with regard to ::: Downloaded on - 15/04/2017 21:41:06 :::HCHP
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dowry after marriage, if any, given by the parents. In FIR complainant got recorded that on 7.12.2007, accused telephonically demanded .
the vehicle as well as dowry but in her statement before Court PW1 admitted in the cross examination that on 7.12.2007, her husband made telephone call for getting vehicle, hence, this Court after carefully examining the examination in chief and cross-examination of conducted upon these PWs, sees force much less substantial in the contentions raised by the learned counsel representing the respondents that there are material contradictions on the statement of rt PW1 and PW2. Similarly, statement of PW2, nowhere supports the version put forth by PW1 that a sum of Rs. 50,000/- was demanded as dowry. PW2 in his statement stated that accused demanded currency notes as dowry but he nowhere stated that amount of Rs. 50,000/- was demanded by the accused from PW1. Similarly, it may be noticed that there is nothing on record suggestive of the fact that amount as stands mentioned in letter Ext.PW1/A was actually paid to the respondent accused because admittedly, there is no mention, if any, in the statement of PW2, who is father of the accused with regard to payment of money of Rs. 50,000/- as stands mentioned in the letter.
Rather, this Court after carefully examining the statement of PW1 is of the view that respondent No.2 was kind enough to the complainant, who himself at the time of delivery of their child, took her to the ::: Downloaded on - 15/04/2017 21:41:06 :::HCHP
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hospital where she delivered one female child. Similarly, there is no mention with regard to maltreatment, if any, between 25.4.2007 till .
11.4.2007, when this child was born and brought up by the accused.
Rather, this Court is compelled to draw adverse inference against the complainant, who at the time of leaving the house of the petitioner accused left her seven months' child at her matrimonial house.
of Explanation rendered by her for leaving the child, cannot be accepted in any eventuality, otherwise also, explanation given by her that since she was severely beaten, she was unable to take her child, doesn't rt appear to be trustworthy. If aforesaid explanation having been rendered by complainant is accepted, then question arises that how she went to her parents' house. As far as custody of child is concerned, there is nothing on record suggestive of the fact that effort was ever made by the complainant to have custody of child till date, which definitely compels this Court to conclude that complainant was least bothered about the child. Had she bothered about the child, definitely she would have initiated some proceedings permissible under law to have custody of child. This Court cannot also lose sight of the fact that till date child delivered by the petitioner complainant is being brought up and taken care of by the respondents accused only. Hence, this Court sees no force in the versions put forth by the complainant that she was teased for having delivered a girl child.
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18. This Court also finds from the perusal of the FIR Ext.PW4/A that there is no mention if any, qua the beatings allegedly given on .
14.11.2007 by the respondent accused on the person of the complainant, meaning thereby her version that she was unable to take her child on 14.11.2007 is wrong and same deserves to be rejected outrightly.
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19. Accordingly, this Court after carefully examining the statements of aforesaid prosecution witnesses (PW1 and PW2), who are definitely daughter and father, is fully convinced and satisfied that rt there is no illegality and infirmity in the judgment passed by the court below, rather same is based upon the correct appreciation of evidence adduced on record. This Court after analyzing the entire evidence led on record has no hesitation to conclude that present proceedings are the sheer abuse of process of law by the complainant, who solely with a view to harass the respondent accused filed false case against him and as such, same was rightly dismissed by the Court below.
20. Consequently, in view of the detailed discussion made herein above, the present petition is dismissed being devoid of any merit.
5th December, 2016 (Sandeep Sharma),
manjit Judge.
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