Delhi High Court
Govind Yadav & Ors. vs State N.C.T. Of Delhi on 3 April, 2019
Author: R.K.Gauba
Bench: R.K.Gauba
$~11
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 3rd April, 2019
+ CRL.A. 587/2002
GOVIND YADAV & ORS. ..... Appellants
Through: Mr. R.N. Sharma, Advocate
with Mr. Sangam Singh,
Advocate
versus
STATE N.C.T. OF DELHI ..... Respondent
Through: Mr. Amit Ahlawat, APP for the
State with SI Reena, PS
Paschim Vihar.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. By judgment dated 29.07.2002 in Sessions Case No.87/1998, the Additional Sessions Judge (ASJ) held the appellants guilty and convicted on charge for the offence under Section 498-A of the Indian Penal Code, 1860 (IPC). The trial had been held on the basis of charges for offences punishable under Sections 307/34 IPC, Section 498-A/34 IPC and Section 406/34 IPC, the case also involving two others, namely, Kavita and Varsha as accused. By the aforementioned judgment, the trial court held that charges under Section 307/34 IPC and sections 406/34 IPC had not been proved. It was also held that the prosecution had failed to prove the complicity of Kavita and Varsha, Crl. Appeal No.587/2002 Page 1 of 10 who were thus, acquitted. By order dated 30.07.2002, the trial Judge awarded rigorous imprisonment for three years with fine of Rs.2,000/- each as sentence for offence under Section 498-A IPC against the appellants herein directing that in default of payment of fine they would undergo further rigorous imprisonment for three months, extending to them the benefit of set off under Section 428 Cr.P.C.
2. Feeling aggrieved by the conviction for the offence under Section 498-A IPC and by the order on sentence passed in its wake, the present appeal was filed, the prime contention being that it is a motivated case set up on false accusations.
3. The acquittal of the appellants on the charge for offence under section 307 and 406 read with section 34 IPC or, for that matter, the acquittal of Kavita and Varsha on all the charges, on which they were put on trial, has not been challenged by the State by any appeal or petition. The said decision of the trial court, thus, has attained finality.
4. This appeal was presented in August, 2002 and the sentences were suspended by order dated 05.08.2002 whereby the appeal was entertained. The turn of the appeal to be taken up for final hearing has come up from the list of „regulars‟ after more than sixteen years.
5. Submissions of both sides have been heard at length and the record has been perused.
6. The case relates to the complaint of Sunita (PW-2), who was concededly married to the first appellant Govind Yadav (A1) in March, 1995. The second appellant Om Prakash (A2) is the father of Crl. Appeal No.587/2002 Page 2 of 10 A1, while the third appellant Laxmi Devi (A3) is the mother of A1. Kavita (A4) and Varsha (A5), who were also tried, were unmarried sisters of A1, role having been attributed to each of them in the various episodes that were narrated as the basis of accusations of cruelty being meted out to the complainant [Sunita (PW-2)]. The prosecution case primarily depended on the evidence of PW-2 and her parents, viz., Savitri (PW-5) and Kartar Singh (PW-7).
7. Prosecution had also referred to the evidence of Naresh (PW-8), maternal uncle of the complainant. But then, the procedure adopted for taking on board his version is unknown to law. He was not examined by the prosecution, but simply tendered for cross- examination at the hands of the defence counsel. His version, therefore, is not available.
8. Interestingly, in the present case the statement of the complainant was also recorded by Mr. B.S. Jaglan (PW-12) sub- divisional magistrate (SDM), during the time she was assumably under treatment in the hospital for certain injury, even though there is nothing on record indicating any reason to believe that the complainant was under risk of losing her life on account of such injury. Besides these five witnesses, the prosecution also rested on the testimony of Dr. Maninder Chhabra (PW-6), the doctor who had recorded the medico-legal certificate (MLC) in Deen Dayal Upadhyay (DDU) hospital where the complainant had been taken in injured state on 24.04.1998.
Crl. Appeal No.587/2002 Page 3 of 109. The sequence of events leading to the registration of the first information report (FIR) No.242/1998 in the Police Station Paschim Vihar on 04.05.1998 need to be noted at the outset. As mentioned above, the complainant had been brought to DDU hospital in an injured state at about 1:15 p.m. on 24.04.1998. This is recorded in the MLC (Ex.PW-6/A) prepared on 25.04.1998. The document makes an interesting reading, its author PW-6 confirming the contents to the effect that when the victim was brought to the casualty of the said hospital, she was accompanied by her husband (A1). She had given to the examining doctor the history of injury to be "fall". She was referred to the surgery department. There was history of pain in the abdomen and vomiting. There is nothing in the MLC which could indicate that she was unconscious at any stage. In due course, the parental family had also come to the hospital. Soon thereafter, there was a change of story. The parents and the complainant insisted that MLC be recorded. The MLC itself notes that, upon such insistence, it was recorded on 25.04.1998 with modified version that the complainant had suffered injury on account of assault that had been committed on 22.04.1998. There is no doubt that there was no assault committed on 22.04.1998. This fact was admitted during the course of trial, even by the complainant who, while deposing for the prosecution (as PW-2), would instead refer to an assault committed on 23.04.1998.
10. In the same context, it may be mentioned that PW-7, the father of the complainant, in the course of his evidence would claim that when he had arrived at the hospital none of the members of the Crl. Appeal No.587/2002 Page 4 of 10 matrimonial family of the complainant, i.e., appellants herein, were present there. This apparently cannot be believed because there is substantive evidence to show that it was the husband (A1) who had taken the wife (the complainant) first to a private nursing home and from there, upon reference, to DDU hospital, the complainant having remained hospitalized there for a long time. During the course of treatment, the complainant underwent surgery, her liver having been found to be ruptured, it being an internal injury. There is also evidence brought on record, primarily through the defence witness, and the trial court believed the same, to accept the defence version that the husband (A1) and one of his friend Rajinder had donated blood for aiding and assisting the successful surgical procedure for the complainant.
11. The complainant, in the course of her testimony (as PW-2) spoke about she having lost consciousness. She, however, conceded under cross-examination that she had regained consciousness on 25.04.1998. The matter was then being followed up by Head Constable Hari Prakash (PW-9), who would confirm that he had gone to the hospital and met the complainant and her relatives. He would do so regularly. Even though the complainant (as per her version) had regained consciousness on 25.04.1998, no statement was given to the police till 04.05.1998. Thus, the first version that was offered by the complainant was after a gap of about ten days of the accident wherein she had suffered ruptured liver, it being a dangerous injury on which account she had to be shifted to the hospital. In the statement (Ex.PW-1/A) which formed the basis of endorsement by PW-12 Crl. Appeal No.587/2002 Page 5 of 10 leading to registration of the FIR (Ex.PW-1/B), she again referred to the incident of assault to be one that had occurred on 22.04.1998. As noted earlier, no such incident had taken place on 22.04.1998 since later testimony would relate to what had happened on 23.04.1998, her father (PW-7) even having spoken about the visit to the matrimonial home on 23.04.1998 to handover Rs.20,000/- in cash.
12. Be that as it may, in the FIR lodged on 04.05.1998, the complainant spoke about she having been subjected to ill-treatment in the matrimonial home after some period of her marriage in March, 1995. She alleged that she had visited her father's house to arrange for the demand to be fulfilled, she being accompanied by her husband (A1), her father having given her cash of Rs.5,000/- stating that he was unable to make any further arrangement. She further alleged that after a few days she was physically assaulted, at about 12 o'clock in midnight, by the appellants herein and the two sisters-in-law (Kavita and Varsha) and turned out of the house, she being asked to go back to her father's house and arrange for a plot of land from him. She stated that against the said backdrop she had remained at her parental home for about 8-10 months and that, after a panchyat had been held, assurances having been held out, she was taken back by the appellants to their house. While lodging complaint (on 04.05.1998), she spoke about another incident that had occurred eighteen days prior thereto in which a Maruti car had been demanded and when she had declined to acceded to such demand, she was asked to bring Rs.20,000/- and the documents of the house of her father in lal dora, and also arrange for Crl. Appeal No.587/2002 Page 6 of 10 surety for loan to be taken for a car. She alleged that when she had refused to accept all these demands, she was physically assaulted by the appellants and the said two sisters-in-law with legs and fists, this having resulted in she suffering injuries and losing consciousness. She stated that she was taken by the husband to a nursing home where the concerned doctor refused to admit her for treatment on which account she was taken to DDU hospital on 25.04.1998. The entire story narrated in the FIR cannot be believed per se inasmuch as the MLC in contrast would show that she had been brought to DDU hospital one day prior to what she would project to be the date on which she was taken there, her statement in the court confirming that she was taken from the nursing home directly to the said hospital.
13. The police, for some reasons, had also arranged for the statement of the complainant to be recorded by the SDM, on 29.05.1998. In the said statement (Ex.PW-2/B), the complainant changed the date of assault resulting in injuries to 23.04.1998. She stated that at about 6:00 a.m. when she was feeding her daughter, the parents-in-law, accompanied by the two sisters-in-law, had come and had brought up the subject of the house in lal-dora area and a cash of Rs.50,000/- in cash. She stated that when she had refused to go to the parental home to make such arrangements, the mother-in-law and the two sisters-in-law tried to strangulate her with hands. She also stated that the husband had come on the scene at that stage and with the assistance of his mother, father and two sisters he had beaten her rendering her unconscious. She spoke about visit to the house by a Crl. Appeal No.587/2002 Page 7 of 10 private doctor on whose advice she was taken to a private nursing home and from there to the other hospital. On further questioning, she also spoke about certain demands made in the past, this leading to cash of Rs.20,000/- and Rs.17,000/- having been given on two different occasions.
14. The statement forming the basis of FIR does not match with statement before SDM. Statement more or less on the above lines given by PW-2 during the court deposition consists of lot of improvements. The contradictions arising out of such improvements were brought out by extensive cross-examination. Her parents (PW-5 and PW-7) also deposed similarly, their respective cross-examination also bringing out many an improvement on material aspects. It may be noted here that the payments of Rs.7,000/-, Rs.17,000/- and Rs.20,000/-, on demand, were not mentioned, not even remotely, in the first statement that had been made to the police on 04.05.1998. Similar is the case of the cash of Rs.50,000/- being demanded.
15. The trial court examined the evidence which had been led and found it difficult to believe that there had been any attempt on the life of the complainant. Taking note of the first version to the medical officer (before whom the complainant had been brought) on 24.04.1998 indicating the history of injury to be a "fall", the trial Judge refused to believe the complainant in her allegations that she had been subjected to intentional assault by fists and legs at the hands of the husband or any of the members of his family. The trial Judge refused to believe that the sisters-in-law (Kavita and Varsha) had any Crl. Appeal No.587/2002 Page 8 of 10 role to play in any harassment - physical or mental - meted out to the complainant in the matrimonial home. Even which rejecting the evidence to such effect, the version of the complainant and the word of her parents has been accepted to return finding of guilty against the appellants for the offence under Section 498-A IPC. This, in the considered opinion of this court was inherently contradictory and most unfair.
16. Upon appreciation of evidence, it is indeed difficult to believe the allegations against Kavita and Varsha. But, while rejecting the case against said two persons that very evidence attributing similar role concerning the appellants on same set of incidents has been accepted on its face value. In view of the somersault as to the history of the serious injuries with which the complainant had been brought to the hospital on 24.04.1998, the theory of fall as the cause of injury having been accepted, the version of the complainant as to the intentional assaults by the appellants is rendered in very poor light this seriously affecting her credibility. As noted earlier, despite opportunity, and the approach by the police official on regular basis, even while she was in hospital, the complainant consciously avoided giving any version. The MLC itself shows that the change of the version from the original one of "fall" (which has been accepted by the trial court) was at the instance of the parents. The fact that the statement alleging history of harassment for dowry was lodged after a period of ten days renders it a case possibly of an afterthought, such delay, in the facts and circumstances, having remained unexplained.
Crl. Appeal No.587/2002 Page 9 of 10Doubts arise as to the purity and wholesomeness of the version forming its basis.
17. In above view, this court concludes that the word of PW-2, as indeed that of her parents, cannot be accepted on its face value. Serious doubts persist as to the credibility of the word of PW-2, PW-5 and PW-7. The appellants deserve the benefit of such doubts.
18. Thus, the appeal is allowed. The impugned judgment and order on sentence are set aside. The appellants are acquitted. Bail bonds and surety bonds are discharged.
19. Trial court record be sent back forthwith.
R.K.GAUBA, J.
APRIL 03, 2019 vk Crl. Appeal No.587/2002 Page 10 of 10