Delhi High Court
Urmila Devi vs State (N.C.T. Of Delhi) on 18 September, 2006
Equivalent citations: I(2007)DMC174
Author: Badar Durrez Ahmed
Bench: Badar Durrez Ahmed
JUDGMENT Badar Durrez Ahmed, J.
1. This revision petition has been filed challenging the order on charge as well as the charge framed on 22.4.2006 by the learned Additional Sessions Judge against the present petitioner.
2. The learned Counsel for the petitioner submits that initially there were four accused in this case. The four accused were Mahesh Kumar (husband), late Banarasi Das (father-in-law), Smt. Kusum (married sister-in-law) and Urmila Devi (the present petitioner) (mother-in-law). He submitted that insofar as the other three accused are concerned, they faced trial and were acquitted by a judgment and order dated 24.9.2003. The present petitioner was absconding and her trial could not commence because of that. However, after the judgment and order of acquittal of the co-accused, the petitioner has joined the proceedings and she has been charged by virtue of the order on charge and formal charge for having committed offences, firstly under Section 498A and secondly under Sections 304B/34, IPC.
3. The learned Counsel for the petitioner submitted that no useful purpose would be served by subjecting the present petitioner to a full-fledged trial because on the same set of facts and on the same evidence, the co-accused have been acquitted by the trial Court by virtue of the said judgment and order dated 24.9.2003. The learned Counsel for the petitioner submitted that the role ascribed to the present petitioner was in common with the role ascribed to the other co-accused and there was no specific or separate role which was ascribed to the present petitioner by the prosecution as borne out by the statements as well as the evidence which has come on record. The learned Counsel for the petitioner pointed out that the trial Court, on the basis of the entire evidence led before it, concluded that it was doubtful as to whether the deceased (Meenu) was subjected to cruelty or harassment for the sake of dowry by any of the accused person. It concluded that the prosecution was not able to prove its case against any of the accused and that it would not be safe to act upon the testimony of the prosecution witnesses. It is in these circumstances that the co-accused were acquitted on the benefit of doubt being given to them. He submits that it is the very same evidence which is going to be pressed into service against the present petitioner and, therefore, no useful purpose would be served by subjecting the petitioner to a full-fledged trial.
4. He also submitted that the charge against the petitioner is also under Sections 304-B/34, IPC. When all the co-accused have been acquitted, there is no question of invoking Section 34, IPC and, that being the case, since there is no specific allegation or role ascribed to the petitioner, there is no question of a conviction order being passed under Section 304B alone insofar as the present petitioner is concerned.
5. The learned Counsel for the petitioner took me through the judgment dated 24.9.2003 to show the manner in which the evidence led by the prosecution witnesses and, particularly, by the mother and sisters of the deceased (Meenu) have been discussed in detail by the trial Court and have been found to be untrustworthy. He then referred to the decision of a learned Single Judge of this Court in the case of Sunil Kumar v. State wherein, also, the to co-accused had been acquitted while the petitioner therein had been absconding and, therefore, the trial could not proceed against him. Subsequently, after the co-accused were acquitted, the petitioner, in that case, surrendered before the additional Sessions Judge and sought his discharge on the ground that the other accused had been acquitted of the offences under Sections 148/302/149, IPC. Rejecting that prayer, the learned Additional Sessions Judge had framed a charge under Sections 304/34, IPC against the petitioner therein. However, this Court set aside that order and concluded that the trial would only mean a wastage of time inasmuch as it was of the view that the evidence against all the accused persons was inseparable and indivisible and, therefore, when the co-accused had been acquitted, there was no reason to treat the petitioner differently on the basis of the same evidence. Paragraph 3 of the said decision is relevant and it reads as under:
3. The question thus is as to whether in the face of the judgment of acquittal the petitioner should still be permitted to undergo the ordeal of a trial. In Sat Kumar v. State of Haryana , it was held that there is no rule of law that if the Court acquits some of the accused on the evidence of a witness raising doubt with regard to them the other accused against whom there is absolute certainly about his complicity in the crime based on the remaining credible part of the evidence of that witness must be acquitted (see also Har Prasad v. State of Madhya Pradesh ; Makan Jivan v. State of Gujarat ; Mohd. Moin Uddin v. State of Maharashtra 1971 SCC (Cri) 617). But where the evidence against all the accused persons is inseparable and indivisible and if some of the accused persons have been acquitted, the remaining accused persons cannot be treated differently on the basis of the same evidence.
6. The learned Counsel for the petitioner then referred to the decision of this Court in the case of Amarjit v. State 1996(1) C.C. Cases 465 (HC). In that case also the co-accused had been acquitted. The Court came to the conclusion that the petitioner was not required to undergo the ordeal of a trial, particularly, when the co-accused was acquitted because the prosecution version was found to be unworthy of reliance.
7. The learned Counsel for the petitioner then referred to the decision of the Supreme Court in the State of West Bengal v. Vindu Lachmandas Sakhrani alias Deru . In the case before the Supreme Court a husband and his wife had been charged under Sections 364 and 302/34 of the Indian Penal Code for the kidnapping and murder of a six-year-old child named Nita. The trial Court had acquitted the husband but convicted the respondent under Section 302 and sentenced her to life imprisonment. The question before the Supreme Court was whether the appellant (the wife) could be convicted under Section 302 when the husband had been acquitted of the charge under Sections 302/34, IPC and when no independent charge under Section 302, IPC either against the husband or against the wife was made. The Supreme Court concluded that the husband having been acquitted and there being no independent charge under Section 302, IPC against the wife, she could not be convicted for the said offence. The Supreme Court observed in paragraph 3 as under:
3. Learned Counsel for the respondent has raised a further point for our consideration. According to him there was no independent charge under Section 302, Indian Penal Code either against the husband or against the wife. Both were charged under Section 302 read with Section 34, Indian Penal Code. He states that the element of sharing the common intention by husband and the wife was the core of the charge. The husband having been acquitted and there being no independent charge under Section 302, IPC against the wife, she cannot be convicted for the said offence.
8. In the background of this decision, the learned Counsel for the petitioner submitted that in the present case the charge against the co-accused was, inter alia, under Sections 304B/34, IPC and they were all acquitted. The charge against the present petitioner that has been framed now is also under Sections 304B/34, IPC. No independent charge under Section 304B has been framed against the petitioner. When there is nobody else to share the common intention, there is no question of sustaining the said charge and the trial is bound to lead to acquittal.
9. Ms Richa Kapur, the learned Counsel for the State referred to the order on charge and he submitted that there are two considerations which the Court has to keep in mind. The first consideration is that it is settled law that where the evidence is inseparable and indivisible and on the same set of evidence the co-accused have been acquitted then the remaining accused need not face trial. Her second submission is that, however, if the evidence is separable and divisible and there are specific allegations and accusations against the accused which were not there in the case of the co-accused who were acquitted then it would be a subject matter of trial. She referred to the following passage in the order of charge to indicate that the learned Sessions Court was mindful of this distinction:
The case of the accused is to be considered. Keeping in view the fact whether the material including the evidence already led in the earlier trial relied upon by the prosecution is separable and divisible from the evidence already induced and there are separable clinching or circumstantial evidence against the accused implicating him for the commission of crime. In the present case I have gone through the statement which has come on record and also the statements recorded under Section 161, Cr.P.C. there is specific role assigned to accused Urmila Devi who was not available being P.O. when the other accused persons were facing the trial. The statements of Smt. Imarti, Ms. Mona, Ms. Sonia shows that Urmila Devi was not providing food to deceased Meenu. Urmila Devi also used to taunt Meenu for bringing saries of less value and gave beatings to the deceased only on the third day of marriage. There are other allegations also which are specific to Urmila Devi which is evident from the testimony of these witnesses. But as Urmila Devi was not in the dock when this evidence was produced which was specific to Urmila Devi hence in my opinion as there are specific averments and the allegations against Urmila Devi. Therefore keeping in view the allegations 1 am of the opinion that prima facie offence punishable under Sections 498A, 304B of IPC are made out against the accused Urmila Devi. She be accordingly charged.
10. She submitted that the learned Sessions Court while framing the charge has examined the testimony of PWs. Smt. Imarti, Ms. Mona, Ms. Sonia to indicate that there were specific allegations and instances of cruelty and harassment at the hands of the present petitioner and, therefore, the order on charge does not require any interference and the petitioner ought to face trial.
11. Ms. Richa Kapur then referred to the decision of the Supreme Court in the case of Rajan Rai v. State of Bihar IV (2005) CCR 278 (SC) : (2006) 1 SCC (Cri) 209. Ms Kapur referred to paragraphs 8 and 10 of the said decision to indicate that although in the case before the Supreme Court there was a judgment of acquittal of co-accused rendered in an earlier trial arising out of the same transaction, the same was held to be wholly irrelevant in the case of the appellant before the Supreme Court who was tried separately. According to her, the Court observed that the case of the accused who were acquitted was decided on the basis of the evidence led there while the case of the present accused was to be decided only on the basis of evidence adduced during the course of his trial. In that case also, Ms. Kapur points out, the initial charge was under Sections 302/34, IPC but as the co-accused had been acquitted and the Court found sufficient material to independently convict the appellant under Section 302 he was so convicted and Section 34, IPC was dropped.
12. Ms. Kapur submitted that the allegations against the present petitioner are separable and divisible from those against the other co-accused who have been acquitted. Furthermore, she submitted that at the stage of framing of charges, the statement of witnesses made during the trial, insofar as the other co-accused were concerned, ought not to be looked into inasmuch as the present petitioner was absconding and was not available for trial at that stage. She submitted that one should look at the material that was available before the Court at the time of framing of charges to ascertain whether any charge can be framed against the present petitioner. In this context, she referred to the Section 161, Cr.P.C. statements of Smt. Imarti, Mona and Sonia. It was her contention that specific and separate allegations have been made against the present petitioner who was the mother-in-law of the deceased Meenu.
13. Having considered the arguments advanced by the Counsel for the parties, it is clear that what needs to be considered at this stage is whether there is material against the present petitioner which is separable and divisible from that against the other co-accused who have been acquitted. Secondly, it is to be seen whether such material is of a nature which would point in the direction of a grave suspicion that the present petitioner is liable to be convicted. In the statement of Smt. Imarti, which forms the basis of the FIR, the entire emphasis is on allegations against the husband and the present petitioner. It was alleged in that statement that the present petitioner always used filthy language against Meenu and taunted her for bringing less dowry and that she did not give the deceased Meenu food to eat. It was also alleged that about one and a half months prior to the incident, the petitioner brought Meenu to meet Smt. Imarti and at that time Meenu told Imarti that her husband (Mahesh) had beaten her severely and had kicked her on her abdomen and she was suffering very pain. It was further alleged by Smt Imarti that it was her mother-in-law (the present petitioner) who was behind all this. It is pertinent to note that, on the basis of the aforesaid allegations, the deceased Meenu's husband (Mahesh), after a full-fledged trial, has been acquitted. The Court has disbelieved the testimony of Smt. Imarti and the other witnesses. The allegations against Mahesh, as made out in the statement of Smt. Imarti, are far greater than that against the present petitioner.
14. In the testimony of Smt. Imarti (PW1) before the Court, she has stated in examination-in-chief that "Meenu also told me that her mother-in-law and Nanad (Kusum) were telling her to bring whatever saries her mother was having." It was contended by the learned Counsel for the State that Smt Kusum has been acquitted on the ground that she was staying in Pune but, the mother-in-law (the present petitioner) was not staying in Pune and was very much residing in their matrimonial home. Therefore, the petitioner cannot be discharged at this stage. It is pertinent to note that, in her testimony, PW1 (Smt. Imarti) has made a joint allegation against the present petitioner and the sister-in-law (Kusum) with regard to telling her to bring whatever saries her mother was having. When part of the testimony is disbelieved on account of the fact that Kusum was not residing in Delhi but in Pune, the other part with regard to the present petitioner cannot be believed either. This is apart from the fact that the allegation is a composite one and is not quite separable or divisible.
15. Coming to the statement of Ms. Mona she has made allegations in her statement which was recorded under Section 161 of the Code of Criminal Procedure, 1973 that the deceased Meenu's mother-in-law and father-in-law used to taunt her with regard to dowry. It is further alleged that the mother-in-law and sister-in-law used to get house work done by her. Then it was alleged that the mother-in-law and father-in-law did not allow the deceased Meenu to meet anyone. They also did not give her food. From these allegations, it is apparent that they are composite in nature inasmuch as the allegations against the present petitioner are also the allegations against the father-in-law and the sister-in-law. The allegations against the present petitioner cannot be split from the allegations made against the father-in-law and the sister-in-law. Both of them, that is the father-in-law and the sister-in-law have been acquitted. And, therefore, on the same evidence, the present petitioner cannot be subjected to a full-fledged trial.
16. As regards the Section 161, Cr.P.C. statement made by Sonia, I find that the allegations have been made against the mother-in-law, sister-in-law, brother-in-law (Nandoi) and father-in-law that they used to beat the deceased Meenu everyday. They used to demand dowry everyday and the mother-in-law taunted her for bringing saries of very little value. Here again I find that the allegations against the mother-in-law (the present petitioner) cannot be separated from the allegations made against the father-in-law, the brother-in-law and the sister-in-law. All other accused have been acquitted and, therefore, on the same set of evidence, which is inseparable and indivisible in nature, I do not see as to how the present petitioner could be convicted even if the trial is to continue, when the co-accused have been acquitted. The decision of the Supreme Court in the case of Rajan Rai (supra) is not applicable to the facts and circumstances of the present case as that was a case of separate trials. One of the accused had been acquitted and the other accused sought acquittal on the basis of the acquittal of the co-accused in a separate trial. The Supreme Court held that the appellant's case before it would have to be judged on the basis of the evidence recorded during his trial and not on the basis of the evidence recorded in the co-accused's trial. The case before me is quite different. It falls within the parameters of the decision in Sunil Kumar (supra), Amarjit v. State (supra) and State of West Bengal v. Vidhu Lachmandas Sakhrani (supra).
17. Examining the allegations against the present petitioner, 1 find that the same are not separable and divisible from the allegations in respect of the other accused who have been acquitted. Apart from composite allegations made against the present petitioner and other accused, there is no separate and distinct case made out against the present petitioner which would point in the direction of a possible conviction.
18. The order of acquittal dated 24.9.2003 passed by the learned Additional Sessions Judge in respect of other accused clearly records that it is doubtful as to whether the deceased (Meenu) was subjected to cruelty or harassment for the sake of dowry by any of the accused persons. The learned Additional Sessions Judge, therefore, concluded that the prosecution has not been able to prove its case against any of the accused persons and that it would not be safe to act upon the testimony of the prosecution witnesses. When such a finding has been recorded in respect of the co-accused and where the evidence against the present petitioner is neither separable nor divisible from that against the co-accused, it would not be in the interest of justice to permit the present petitioner to be subjected to a trial when the end result is more than clear. Subjecting the present petitioner to trial would be an exercise in futility.
19. In these circumstances, the impugned order on charge as well as the charge are liable to be set aside. This revision petition is allowed. The impugned orders are set aside. The petitioner is discharged.