THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: 02.07.2007 CRL. REV. P. 695/2002 BALDEV RAJ ...Petitioner - versus - CHANDER PRAKASH & ORS. ...Respondents Advocates who appeared in this case: For the Petitioner : Mr P. R. Thakur For the Respondent : Mr R. K. Naseem with Mr Manu Sharma and Mr Sanjay K. Manan CORAM:- HON'BLE MR JUSTICE BADAR DURREZ AHMED 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in Digest? Yes BADAR DURREZ AHMED, J 1. This criminal revision petition has been filed by Mr Baldev Raj against an order of acquittal passed by the learned Additional Sessions Judge on 06.07.2002, whereby the respondents have been acquitted of the offences under Section 498A and 304 B IPC. The petitioner (Mr Baldev Raj) is the father of the deceased Kavita, who died on 06.07.1993 as a result of a fall from the fourth floor of her matrimonial home. Late Kavita was married to the respondent No.1 (Chander Prakash) on 02.02.1989. They had a girl child of CRL. REV. P. 695/2002 Page No.1 of 30 about 3-1/2 years of age at the time of Kavita's demise. The respondent Nos. 2, 3 and 4 are the brothers-in-law of late Kavita. The respondent No. 5 (Gulshan Rani) is Kavita's mother-in-law. It is relevant to point out that no appeal was preferred against the order of acquittal by the Government of NCT of Delhi. Since the petitioner is aggrieved and he has no recourse to file an appeal, the present criminal revision petition has been filed by him. 2. The case against the respondents emanates from FIR No. 377/1993 registered at Police Station Paschim Vihar, under Sections 498A / 302B IPC. The prosecution case was that late Kavita, daughter of the present petitioner Baldev Raj and Smt. Varsha Rani, married Chander Prakash on 02.02.1989. The couple started living together, firstly, at A-6, Pink Apartments and later at A-45, Pink Apartments, Paschim Vihar, Delhi. Late Smt. Kavita died an unnatural death in the night intervening 5th and 6th July, 1993 at her matrimonial house. The police had received information through an unknown person with regard to the death of Smt. Kavita. The same was recorded in DD No. 30-A at about 4.45 am on 06.07.1993. When the police officials arrived at the scene of the incident, that is, house No. A-45, Pink Apartments, Paschim Vihar, they found the body of late Smt. Kavita on a cot on the ground floor. The parents of the deceased and the family members of her in-laws were also present. The statements of the parents of late Smt. Kavita, namely, Smt. Varsha Rani and Mr Baldev Raj (the petitioner herein) were recorded by the Sub- CRL. REV. P. 695/2002 Page No.2 of 30 Divisional Magistrate. The statement of Smt. Varsha Rani was treated as the complaint and the SDM directed the Station House Officer of Police Station Paschim Vihar to register the case and investigate the matter. 3. As per the statement of Smt. Varsha Rani, recorded by the SDM, Kavita and Chander Prakash, after their marriage on 02.02.1989, lived at A-6, Pink Apartments for about 1-1/2 years. Thereafter, they shifted to A-45, Pink Apartments, Paschim Vihar along with other family members of Chander Prakash. It was alleged that Kavita and Chander Prakash used to quarrel / dispute on account of domestic matters. It was also alleged that Chander Prakash used to consume liquor and then used to beat Kavita. It was also stated that about 15 days prior to the making of the statement before the SDM, Chander Prakash had beaten Kavita and she (Kavita) had come to her parents' house at B-3/279, Paschim Vihar. It was stated that Smt. Varsha Rani and Baldev Raj pacified her and after one day Kavita returned to her matrimonial home. At about 4 am on 06.07.1993, Smt. Varsha Rani and Baldev Raj received information that Kavita had jumped from the house and had died. Both Smt. Varsha Rani and Baldev Raj rushed to the house of Chander Prakash and found that Kavita was lying dead. There, they came to know from the people that on the previous night also, Chander Prakash had quarreled with Kavita and had beaten her and at that time his three brothers and mother were present in the house. It was also stated before the SDM by Smt. Varsha Rani CRL. REV. P. 695/2002 Page No.3 of 30 that Chander Prakash used to tell Kavita's parents that other people got lots of things in their marriages but what had her parents given in her marriage. It was stated by Smt. Varsha Rani that her daughter Kavita died due to the taunts and harassment. Sh. Baldev Raj also made a statement before the SDM which was more or less identical to the statement given by his wife Smt. Varsha Rani. 4. On the conduct of the post mortem on Kavita's body, six external injuries comprising of abrasions and fractures were noted. The opinion of the doctor conducting the post mortem was that all the injuries were ante mortem and were caused by blunt force impact as a result of a fall from a height. The death was due to shock and haemorrhage consequent to injuries. 5. It was also the case of the prosecution that in the evening of 06.07.1993 Ms Amita, sister of the deceased Kavita, and Sh. Ashok Dandona, uncle of the deceased Kavita, visited the office of the SDM and made their statements. In those statements allegations of demand of dowry and harassment to Kavita on account of such demands were made. As per the prosecution Sh. Baldev Raj, appeared once more before the SDM on 09.07.1993 and made another statement to allege instances of demand of dowry and harassment to Kavita on that account. CRL. REV. P. 695/2002 Page No.4 of 30 6. After completion of investigations and filing of the charge-sheet, the Court framed charges on 05.01.1994 against the respondents, who were all accused, for committing offences under Section 498-A and 304 B IPC. The prosecution examined 20 witnesses. However, the relevant witnesses are PWs 1-3 and PW5. PW1 Smt. Varsha Rani and PW2 Baldev Raj are the parents of the deceased Kavita. PW3, Sh. Ashok Dandona is the uncle of the deceased. PW5 Ms Amita, Kavita's sister, during her deposition was declared hostile and was thereafter cross-examined by the prosecution. This is a very relevant and important circumstance. Another fact that is of great significance is that PW5 Amita married the accused / respondent No.1 Chander Prakash on 08.11.1994, during the pendency of the trial. It is indeed an unusual circumstance that the sister of a deceased has married her sister's widower, when there is a criminal case pending against him with regard to cruelty, harassment and commission of a dowry death in respect of her sister. It appears that the factum of such a marriage between Ms Amita and Chander Prakash has gone a long way in persuading the learned Additional Sessions Judge to return a finding of acquittal in favour of the accused / respondents. 7. After examining the evidence in detail and in particular the evidence led by PW1, PW2, PW3 and PW5, the learned Additional Sessions Judge came to the conclusion that the prosecution has not been able to establish the case either under Section 304 B or Section 498-A IPC. Accordingly, they CRL. REV. P. 695/2002 Page No.5 of 30 were all granted the benefit of doubt and, although the exact cause of the unnatural death of Kavita had not come on record, all the respondents were acquitted for the offences under Section 498-A and Section 304 B IPC. 8. Mr Thakur, who appeared on behalf of the petitioner, submitted that this was a fit case in which this Court ought to interfere in revision against an acquittal. He submitted that even if the Court had found that a case under Section 304 B IPC had not been made out, it could very well, on the basis of evidence on record, convict the accused under Section 306 IPC for abetment to commit suicide read with Section 113-A of the Indian Evidence Act, 1872 as also under Section 498A IPC. He submitted that there was enough material on record to suggest that Kavita “jumped” of the roof of the fourth floor of her matrimonial home. Therefore, it was a clear case of suicide. That being the position, the presumption under Section 113-A of the Indian Evidence Act, 1872 ought to have been drawn by the court concerned. He also submitted that since cruelty was established, the respondents ought to have been found guilty under Section 498 A IPC. In support of his contentions, Mr Thakur relied upon the following decisions:- (i) Devinder Singh & Ors. v. State of Punjab: 2005 (3) JCC 1725 (SC); (ii) Shamnsaheb M. Multtani v. State of Karnataka: 2001 Crl. L. J. 1075 (SC); CRL. REV. P. 695/2002 Page No.6 of 30 (iii) K. Prema S. Rao and Another v. Yadla Srinivasa Rao and Others: JT 2002(8) SC 502 (iv) Hira Lal & Ors. v. State (Govt. of NCT) Delhi: 2003 (5) Supreme 112; (v) Gurbachan Singh v. Satpal Singh and Others: AIR 1990 SC 209 and (vi) Naresh Kumar and Another v. State of Haryana: 1994 SCC (Crl.) 502. 9. Mr Thakur submitted that he was well aware of the limited and restricted powers that this Court possessed in entertaining an application by a private party seeking revision of an order of acquittal. He submitted that under Section 401 (3) of the Code of Criminal Procedure, 1973, it is clear that in exceptional circumstances, though the court cannot convert an acquittal into a conviction, it can remit the matter for re-trial. He submits that the present case falls within the parameters prescribed for exercise of such revisional jurisdiction. To explain the extent of the powers exercisable by this Court, he referred to the following decisions of the Supreme Court:- (i) Vimal Singh v. Khuman Singh and Another: 1998 SCC (Cri) 1574; (ii) K. Chinnaswamy Reddy v. State of Andhra pradesh and Another: AIR 1962 SC 1788; (iii) D. Stephens v. Nosibolla: AIR 1951 SC 196. CRL. REV. P. 695/2002 Page No.7 of 30 10. Mr Thakur submitted that the cruelty that is requisite under Section 498A IPC is clearly made out. He referred to the deposition of PW1 (Smt. Varsha Rani) where she has stated that sometime after the marriage, accused Chander Prakash started quarreling with Kavita on minor domestic issues and he also used to give her beatings. With reference to the other accused, PW1 has stated:- “All of them used to taunt my daughter for insufficient dowry and on the quality of goods given.” And further:- “My daughter used to tell me that all the accused used to give her beatings. I used to make my daughter understand and send her back to her matrimonial home. I had tried to make the accused understand with folded hands but they did not listen to me.” In examination-in-chief, Smt. Varsha Rani further stated:- “About 15 days before her death Chander Prakash and his brothers had given beatings to my daughter and she came to our house in a rickshaw when I saw that she was bleeding from her mouth and her lips were swollen. She came to our house at about 11.30 pm.” In the course of cross-examination also PW1 (Smt. Varsha Rani) had stated:- “Chander Prakash used to take liquor. There used to be some quarrel between Chander Prakash and Kavita on account of his taking liquor. There were also quarrel about some petty household matters. It is incorrect to suggest that none of the accused had given any beatings to the deceased or that Kavita had accidentally fallen from the roof top.” CRL. REV. P. 695/2002 Page No.8 of 30 Referring to the deposition of PW2 Sh. Baldev Raj, Mr Thakur submitted that he had also made similar statements with regard to cruelty. In his examination- in-chief PW2 had, inter alia, stated:- “About 15 days before her death, my daughter Kavita had come to our house at about 11.30 pm because accused Gulshan Rani had quarrelled with them on some petty matter and all the four other accused persons ha mercilessly given beating to Kavita. I did not sent my daughter back. I along with my wife went to the house of Bua of Chander Prakash. She told us that she will make the accused understand, and on her asking, I sent my daughter back on the next day.” He continued his deposition as under:- “On the night of 3rd July 1993, accused had again given beatings to my daughter, and she had come to my house. She told me weeping that she had been given beatings by all the accused persons and the accused had also threatened to kill her.” PW3 Sh. Ashok Dandona, who is the uncle of the deceased Kavita stated in examination-in-chief as under:- “Kavita used to tell me on telephone and sometimes she used to talk to my wife on telephone and she used to complain that she was being given third-degree torture for brining less dowry. All the three brothers of Chander Prakash and his mother also used to join in this torture.” As regards the deceased Kavita's sister PW5 Amita, Mr Thakur submitted that she had been declared hostile by the prosecution. He surmised that possibly her change in attitude was because she subsequently got married to Chander Prakash. However, he submitted that there was sufficient material on the basis CRL. REV. P. 695/2002 Page No.9 of 30 of the evidence led by the prosecution to indicate that there was cruelty meted out by the accused. 11. Mr R. K. Naseem, the learned counsel appearing on behalf of the respondents, submitted that while deciding this revision petition, this Court must take into account three important features, which go to the root of the case. The first feature being that the accused have been subjected to a full- fledged trial and that the petitioner participated with full force in the said trial. The second feature is that the order of acquittal has been passed on merits after considering the entire evidence on record. The learned Additional Sessions Judge has, after examining the evidence placed before him by the prosecution, disbelieved the prosecution case. Thirdly, the State has chosen not to file any appeal against the order of acquittal. Mr Naseem submitted that the parameters of exercise of jurisdiction by the High Court under Sections 397/ 401 of the Code of Criminal Procedure, 1973 are well settled. Interference in acquittal cases is an extremely rare phenomenon. In any event, re-appreciation of evidence is not permissible in a revision petition. For this proposition, he placed reliance on the Supreme Court decision in the case of Thankappan Nadar & Others v. Gopala Krishnan & Another: 2002(4) Crimes 36 (SC). 12. Referring to paragraph 34 of the impugned judgment, Mr Naseem submitted that the Court came to the conclusion that there was no specific CRL. REV. P. 695/2002 Page No.10 of 30 demands for dowry mentioned in the initial statements made by Smt. Varsha Rani PW1 and Sh. Baldev Raj PW2 before the SDM . From those initial statements, it was only apparent that there was some dispute between the deceased Kavita and her husband Chander Prakash on domestic matters and that Chander Prakash used to beat Kavita sometimes under the influence of liquor. He submitted that as observed in the impugned order in paragraph 36 thereof, the allegations made by PW1 and PW2 in their statements before the Court were missing from their previously recorded true statements. In other words, Mr Naseem submitted, the learned Additional Sessions Judge regarded the statements made in Court as improvements upon the original truthful statements made by PW1 and PW2 before the SDM. 13. He further submitted that, with regard to the statements made by PW1 and PW2 before the SDM and the fact that such statements had been admitted to be true before the Court, this indicates that the disputes between Chander Prakash and Kavita were on account of petty domestic matters or because Chander Prakash used to beat her under the influence of liquor. The learned Additional Sessions Judge came to the conclusion that the disputes were not with regard to demand of dowry. It is on the basis of appreciation of the aforesaid evidence that the learned Additional Sessions Judge came to the conclusion:- CRL. REV. P. 695/2002 Page No.11 of 30 “There is nothing on record to show that the accused had made demand of dowry and on that account, they forced Kavita to commit suicide.” Mr Naseem also submitted that it has come in evidence that the present petitioner Sh. Baldev Raj (PW2) was the eldest of four brothers. It is also true that PW2 Baldev Raj separated from the family and started living separately about 25 years back. The other three brothers which include PW3 Ashok Dandona resided together as a part of a joint family. Therefore, it is on the basis of this that the learned Additional Sessions Judge concluded in paragraph 38 of the impugned judgment that:- “Thus it has come on the record that Baldev Raj and his family were living separately from the rest of the brothers.” According to Mr Naseem, this is an extremely important circumstance inasmuch as PW3 was living separately and, therefore, would not be in the knowledge of the affairs of Kavita, who was the daughter of PW1 and PW2. Furthermore, Mr Naseem pointed out that the statements of PW3 have not been corroborated by PWs 1 and 2. The finding of the learned Additional Sessions Judge to this effect is in paragraph 39 of the impugned judgment which, inter alia, reads as under:- “Hence, the statement of PW3 as recorded in the office of the SDM cannot be given much importance. Moreover, it has come in the cross-examination of PW3 that he had told Shri Baldev Raj about the visits of Kavita to his house and her disclosure to him and his wife that accused persons used to beat her on account of demand of dowry. However, such facts are missing from the statements of PW1 and PW2. They have not told that PW3 ever told them about the CRL. REV. P. 695/2002 Page No.12 of 30 alleged visits of Kavita to his house and disclosure of incriminating facts to PW3 and his wife. Hence, it is difficult to believe that Kavita would visit the house of PW3 to tell him the facts which she did not prefer to disclose to her mother and father. It is highly improbable particularly because the family of Baldev Raj was living separately from the rest of the brothers from the last 25 years. The prosecution cannot establish its case on the basis of the statements of PW3.” It is apparent that the learned Additional Sessions Judge did not give much credence, if at all, to the statements of PW3 made either before the SDM or before Court. Mr Naseem also referred to other findings recorded by the learned Additional Sessions Judge to indicate that the trial court considered the matter in detail and found that Section 498A IPC was not made out and that the question of Kavita being driven to commit suicide was also considered and therefore, it cannot be said that the trial court was unmindful of the provisions of Section 306 IPC. The findings are as under:- “45. From the discussion of the facts as observed in the earlier part of the order, I find that the prosecution has failed to establish that accused Chander Prakash and his family members caused cruelty or harassment to Kavita. As per the statements of PW1 and PW2, the dispute between the husband and the wife was on account of petty domestic matter or at the most, Chander Prakash used to beat her under the influence of liquor. There was no demand of dowry. Such allegations do not constitute the offence as described under Section 498A of the IPC. The alleged beating etc. was on small matters and it cannot be said that such allegation could have driven Kavita to commit suicide. The allegations of PW1 and PW2 that in the night of the incident, Chander Prakash and another accused persons had beaten Kavita are only their presumption. No evidence has been brought on record in that regard.” CRL. REV. P. 695/2002 Page No.13 of 30 14. Replying to the submissions made with respect to the invocation of provisions of Section 306 IPC read with Section 113 A of the Indian Evidence Act, 1872, Mr Naseem said that the question of abetment and the raising of a presumption of abetment would only arise if it was established as a fact that Kavita had committed suicide. The question of whether she had committed suicide or not, cannot be determined conclusively and this the trial court had clearly observed in the operative portion of the order itself by stating that the exact cause of the unnatural death of Kavita had not come on record. 15. Mr Naseem also referred to Ex.PW12/B which are the brief facts in the inquest report prepared by the SDM, which indicate:- “............. One Smt. Kavita W/o Sh. Chander Prakash died due to alleged fall from roof top of her in-laws house at A- 45, Pink Apartments, Paschim Vihar, Delhi” He also referred to Ex.PW12/C which is the inquest form. Serial No.12 of the form carries the following question:- “ In what manner or by what weapon or instrument such marks of injuries of violence appeared to have been committed? As against this, the answer given is :- “Alleged fall from roof at the height of 47 feet app. and intercepted in between by telephone wire at a height of 15 feet app.” CRL. REV. P. 695/2002 Page No.14 of 30 In the request for post mortem (Ex.PW12/D), inter alia, the following questions were also posed:- “(iii) Whether death is due to fall (this has been stated by the members of husband family).” “(v) If death is due to fall, then the height from which she fell down may be indicated.” PW18 (Dr. L. T. Ramani) (Dy. M. S. LNJP Hospital) stated in his deposition that:- “In my opinion, all injuries were ante-mortem caused by blunt force impact as a result of fall from height as alleged. Death was due to shock and haemorrhage consequent to injury.” Taking into account the aforesaid, Mr Naseem submitted that there is no concrete or specific proof that this was a case of suicide. Unless and until suicide is established, the provisions of Section 306 IPC do not come into play. For this proposition, Mr Naseem relied upon the decision of the Supreme Court in the case of Wazir Chand and Another v. State of Haryana: (1989) 1 SCC 244. 16. It is contended by Mr Naseem that once the cause of death becomes uncertain and it cannot be said that Kavita committed suicide, the entire prosecution case shrinks down to one of domestic bickering and occasional beating by the husband after consuming liquor. He submitted that, therefore, the only point for consideration would be whether the case falls within Explanation (a) in Section 498A IPC. The said Explanation (a) makes it clear CRL. REV. P. 695/2002 Page No.15 of 30 that cruelty means 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. He submitted that Explanation (b) would not come into play as there is no demand for any property or valuable security. In the context of the provisions of Section 498A read in the light of