Del HC- Misuse of 304 B dowry death-mentality of girls parents, reasons of unnatural death suicidal tendencies

Crl. Rev. P. No.555/2003  Narender Singh Arora v State (Govt. of NCT of Delhi) & Ors.   

IN THE HIGH COURT OF DELHI AT NEW DELHI  
Date of Reserve: 26th  August 2010  

Date of Order:  September 01 , 2010 Crl. Revision Petition No.555/2003      01.09.2010

  Narender Singh Arora          ...Petitioner         
  Versus  
  State (Govt. of NCT Delhi) & Ors.        ...Respondents   

Counsels:
Mr. R.S. Bains and Ms. Parvinder Khatra for revision petitioner.
Mr. O.P. Saxena, APP for State/ respondent no.1.
Mr. Satish Tamta for respondent no.2

JUSTICE SHIV NARAYAN DHINGRA

1.  Whether reporters of local papers may be allowed to see the judgment?
2.  To be referred to the reporter or not?
3.  Whether judgment should be reported in Digest?

JUDGMENT

1.  This petition under Section 397/401 read with Section 482 of Cr.P.C has been preferred by the revision petitioner for setting aside the judgment and order dated 22nd March, 2003 passed by learned Additional Sessions Judge, New Delhi in Sessions Case No.104 of 2001 whereby the learned Sessions Judge acquitted the accused persons of charge under Section 498A/304B 302 read with Section 34 IPC. 

2.  Brief facts relevant for purpose of deciding this revision petition are that the petitioner’s daughter Mrs. Arveen was married to Mr. Paramjit Singh Rana (respondent no.2) in 1984. She delivered a child on 26th  August, 1987. She committed suicide by hanging herself from ceiling fan with the help of a chunni on 23rd November 1988. A case under Section 302/498A/304B read with Section 34 IPC was registered against the husband, father in law, brother in law and sister in law. When trial started, father of the deceased through State got appointed Special Public Prosecutor in this case  and Ms. Rani Jethmalani a known criminal lawyer and Mr. P.K Dey her Junior conducted the prosecution case. 

3.  The learned trial court came to conclusion that it was not a case of dowry death and no case under Section 498A/304B or 302 IPC was made out against the accused persons. Dissatisfied with the judgment, this revision petition has been preferred on the ground  that the judgment passed by learned trial court was based upon misreading of evidence and misinterpretation of facts and law. It is stated that there was sufficient evidence on record by way of testimony of PW-1, PW-2, PW-9, PW-11, PW-15 and PW-16 to show that the deceased was harassed for dowry and it was a case of dowry death. It is also submitted that the trial court wrongly observed that  the cruelty  in the form of beatings was not there. The cruelty could not only in the form of beatings but mental cruelty by way of taunts, harassment, etc  was sufficient to bring home offence under Section 498A IPC. The trial court did not consider the evidence in proper perspective. 

4.  The counsel for the revision petitioner also submitted that the trial court did not consider that it was a case of murder, if not of dowry death and should have convicted the accused persons for murder.  

5.  This case  is  a reflection of mentality which is now taking grip  of parents of a deceased wife in the criminal cases. Whenever a woman dies an unnatural death within seven years of her marriage at  in-laws’ house, whatever be  the cause of death,  the  in-laws must be hanged. This case also shows how truth is losing significance because of the ego of the litigants to see that in-laws should be hanged. 

6.  Suicide is a known phenomenon of human nature. Suicides are committed by living human beings for various reasons, some are not able to bear the normal stresses which are common in life. Some are not able to cope up with the circumstances in which they are placed. Some commit suicide because of frustration of not achieving the desired goals. There  are many  cases where students commit suicide because they failed to achieve certain percentage of marks. Some commit suicide because they are not able to retain top position, some commit suicide because they are not able to cope with the demands of life. Some commit suicide because they suffer sudden loss, some commit suicide out of fear of being caught. There are various reasons for which suicides are committed by men and women. All suicides are unnatural deaths. Suicide  is a complex phenomenon. One, who commits suicide, is not alive to disclose as to what was going on in his or her mind when he or she committed suicide. There is no presumption that every suicide committed by a married woman in her in-laws’ house or at her parents’ house has to be because she was suffering harassment at the hands of her husband or her in-laws. 

7.  Normally in-laws are convicted on the testimonies of parents of the girl who, in a fit of anger or because they had lost their daughter, are not prepared to believe that their daughter could commit suicide for any other reason. Fortunately, in this case, the deceased was in the habit of writing letter to her parents when she was living at her in-laws’ house and to her husband when she was living in her parents’ house and these letters were produced before the trial court. The trial court went through these letters and after going through all the letters written by the deceased, preferred to believe the circumstances prevalent between deceased and her in-laws, as reflected by the letters instead of believing the testimony of father of the girl and other relatives of the girl who wanted the court to believe that it was a dowry death. The learned trial court extensively quoted these letters. A perusal of these letters would show that the deceased was in the habit of writing every minuscule thing happening in the family of her in-laws to her father. She was in love with her father and in her letters gave details of happenings in the family of her in-laws to her father. She had written to the extent that she had to go to market by Rickshaw and that her in-laws were not well-off.  She had written how her bhabi used to behave cleverly and wanted to separate from the house, how her bhabi used to behave; how her  father-in-law used to behave, who were the servants in the family, how they used to cook, what her bhabhi did at the dinner table, how she managed to take bigger share of chicken and all trivial things. The learned trial court concluded that girl who was writing to her father about each and every circumstance of her matrimonial home to such minute details, could not have held back any information from her father if she was harassed on account of dowry or any dowry demand had been made to her. I consider that the trial court rightly put greater reliance on the letters written by the deceased right up to the time of her death to her parents and rightly rejected the oral testimony of her father and other family members who wanted the court to believe that she was being harassed on account of dowry demands. It is well known maxim that men may speak lies but the circumstances do not. The letters written by the deceased is her own testimony in respect of what kind of life she was leading. This testimony of her is unimpeachable and most reliable testimony because it was given by her when there was no shadow of any litigation between the two and relations were normal. The testimony given by her father is not normal testimony. Her father and other family members who deposed in the court testified after death of Arveen and their testimony is coloured with the loss they suffered due to sudden death of the daughter little realizing that she committed suicide not because of dowry demands but because of her fragile and sensitive nature which is reflected from the letters written by her. The letters reflect that she was in deep love with her husband, her husband was also in deep love with her. It looks she was not getting all those facilities at her in-laws’ house to which she was used  to and accustomed at her parents’ house. The letters do not reflect any kind of ill-treatment being meted out to her either at the hands of her husband or at the hands of her in-laws. The letters only reflect the usual day-to-day hiccups which a newly married couple has to undergo. I consider that the learned trial court relied upon the best evidence in order to come to a just and right conclusion whether it was a case of dowry death or it was a case of simple suicide and rightly acquitted the accused persons for the offences under Section 304B/302/498A read with Section 34 IPC. 

8.  The counsel for the petitioner argued that the trial court did not look into the theory of murder of the girl though charge of murder was there. In this case, the death had taken place by hanging. There were ligature marks around the neck of deceased. It is argued by the counsel for the petitioner that the ligature mark was continuous on the neck without a break and if  it were a case of hanging, the ligature mark would not have been continuous and there would have been a break in the ligature mark. It is submitted that it was a case of manual strangulation and a case of murder. This theory was also examined by the learned trial court. The trial court had referred to medical jurisprudence and drawn a table  showing  differences  between a suicidal death by hanging and  a homicidal death by strangulation and came to a conclusion that there was no evidence of a homicidal death. The learned trial court also noted that  to  the doctor who conducted postmortem, no questions were put suggesting that this was a case of murder and not a suicidal death. Even otherwise, except the ligature marks, there was no  other external injuries, no mark of struggle and no other evidence to show that it was a homicidal death. To my view, the learned trial court rightly came to conclusion that it was a suicidal death. I find no force in this revision petition. The revision petition is hereby dismissed.   

SHIV NARAYAN DHINGRA, J
September 01, 2010 

rd

http://lobis.nic.in/dhc/SND/judgement/01-09-2010/SND01092010CRLR5552003.pdf

Adducing new documents evidence u/s 391 crpc-Bhavlal Shankar Mahajan vs State Of Maharashtra on 6 September, 1996 – also u/s 313 crpc the accusd is to examined again

Equivalent citations: 1997 CriLJ 3060, 1997 (2) MhLj 709

Bench: N Chapalgaonkar, V Barde

Bhavlal Shankar Mahajan vs State Of Maharashtra on 6/9/1996

JUDGMENT

1. The appellant is convicted for offence punishable u/S. 302 of Indian Penal Code and sentenced to suffer life imprisonment and to pay fine of Rs. 1,000/- in default of payment of fine, rigorous imprisonment for one year. Being aggrieved by this conviction and sentence, this appeal is filed.

2. When the appeal first came up for hearing, it was noticed that the doctor who had performed post-mortem examination was not examined as a prosecution witness in the trial Court. However, the post-mortem examination report was admitted by the accused u/S. 294 of the Code of Criminal Procedure. Therefore, it was admitted in evidence and was placed at Exhibit 9.

3. The learned Additional Public Prosecutor filed Criminal Application No. 1153/1996 for adducing additional evidence as per the provisions of Section 391 of the Code of Criminal Procedure. The said application was allowed as per the order passed on 3-7-1996.

4. The record and proceedings were transmitted to the trial Court for recording the additional evidence of the medical Officer who had performed post-mortem examination. The learned Additional Sessions Judge has recorded the deposition of the doctor and matter has come up again for hearing.

5. The accused was examined u/S. 313 of the Code of Criminal Procedure in the trial Court before the matter was remanded for recording the additional evidence. However, no specific question was asked to the accused in his examination u/S. 313 of Cr.P.C. regarding the statements made in the post-mortem examination report. After recording evidence of the medical Officer, the accused is not asked any specific questions regarding the medical evidence as per the provisions of section 313 of Cr.P.C. No doubt there is no specific provision under the Criminal Procedure Code that accused is to be examined u/S. 313 after recording the additional evidence as per the provisions of Section 391 of Cr.P.C. There may be certain cases where further examination of the accused u/S. 313 may not be necessary after recording evidence u/S. 391 of Cr.P.C. But at the same time, there may be cases or circumstances in a particular case which require that fair opportunity must be given to the accused to explain the circumstances appearing against him in the evidence recorded u/S. 391 of Cr.P.C. We are of the opinion that the present case is one of such cases. The accused ought to be given an opportunity to explain the circumstances appearing against him in the medical evidence by examining the accused u/S. 313 of Cr.P.C.

6. In this particular matter, we would also like to point out that the examination of the accused u/S. 313 Cr.P.C. carried out by the learned Additional Sessions Judge is not at all satisfactory. The provisions u/S. 313 of Cr.P.C. are such that the accused is given a chance to explain each and every circumstances appearing against him. So it becomes necessary for the Court to put specifically each and every circumstance appearing against the accused and to ask his explanation. Asking vague, complex or compound questions will not be proper examination of the accused u/S. 313 of Cr.P.C. Here it is noted that the learned Additional Sessions Judge has put 2 or 3 circumstances in the one question and the accused is called upon to give his explanation. Obviously the accused was not given proper opportunity. The question No. 5 is an example.

7. It is also noticed that instead of putting the specific circumstance appearing against the accused in the evidence of particular witnesses, a question is asked to the accused that prosecution witnesses Nos. 3 and 4 have stated that you have committed the murder of the deceased Janabai by giving an axe blow on her forehead and what he wants to say about it. It was necessary to put the specific statements made by these witnesses to the accused separately and to give him opportunity to explain those circumstances.

8. It will be thus seen that the examinations of accused u/S. 313 of Cr.P.C. carried out during the course of trial was not proper and sufficient. The learned Additional Sessions Judge has not properly followed the procedural law in this respect.

9. The question then arises as to whether the appellate Court can direct the re-trial of the accused from the stage of recording the statement of the accused u/S. 313 of Cr.P.C.

10. The learned Advocate for the accused has argued that by not putting proper questions to the accused u/S. 313 of Cr.P.C. and by not giving him opportunity to explain the circumstances u/S. 313 Cr. P.C., great prejudice is caused to the accused and, therefore, trial vitiates and the accused be acquitted.

11. However, for the mistake committed by the trial Court in following the procedural law, the appellate Court should not allow failure of justice. The Court has to see that there is a fair trial not only with reference to the accused, but also with reference to the prosecution and more important with reference to the society and the victim. The mistake if curable has to be cured.

12. While considering the powers of the appellate Court u/Ss. 423 and 428 of Old Criminal Procedure Code, the apex Court has observed in the matter between Rajeswar Prasad v. State of West Bengal reported in AIR 1965 Supreme Court 1887 : 1965 (2) Cri LJ 817 at page 821, of Cri LJ :

"The legislature has not chosen to indicate the limits of the power and this Court must not be understood to have laid them down. The cases may arise where either of the two courses may appear equally appropriate. Since a wide discretion is conferred on the appellate Courts, the limits of that Courts' jurisdiction must obviously be dictated by the exigency of the situation and fair-play and good sense appear to be the only safe guides."

We, therefore, think that a re-trial from the stage of recording of statements of the accused u/S. 313 of Cr.P.C. can be directed in the present case where the circumstances are very peculiar.

13. In this respect, we agree with the observations made in the Division Bench ruling of the Kerala High Court in the matter between Lakeshmanan Sunderam v. State of Kerala, 1990 Criminal Law Journal, 1800.It is observed at page 1810.

"When additional evidence by way of examination of witnesses for prosecution is ordered u/S. 391 of the Code that may necessitate further questioning by the Court of the accused u/S. 313 of the Code and thereupon the accused may have to get an opportunity to adduce evidence. It may not always be practicable or convenient for the appellate Court to go through this entire exercise. In appropriate cases, it must be open to the appellate Court to order retrial from a particular stage."

14. Considering the circumstances in this case, we think that the re- trial should be ordered from the stage of recording statements of the accused u/S. 313 of Cr.P.C. In a way this opportunity is being given to the accused to explain the circumstances appearing against him and no prejudice will be caused to him if such retrial is directed. The medical evidence which is brought on record it is taken into consideration without giving an opportunity to the accused to explain the same, that will cause prejudice to the accused. The accused will also get an opportunity to lead any defence evidence if he so desires.

15. Hence, the judgment and order passed by the learned Additional Sessions Judge, Jalgaon, in Sessions Case No. 246/92 on 18-2-1993 is set aside. The matter is remanded to the trial Court for retrial from the stage of recording the statements of the accused u/S. 313 of Cr. P.C. The Additional Sessions Judge to record the statements of the accused u/S. 313 of Cr.P.C. by taking into consideration the observations made above. The accused be asked his explanation about all the circumstances appearing against him in evidence including the evidence recorded under Section 391 of Cr.P.C. The learned Additional Sessions Judge then may examine any defence witness if the accused so desires to examine. The learned Additional Sessions Judge then after hearing the arguments of prosecution and the accused should deliver the judgment. We make it clear that we have not expressed any opinion about the evidence of prosecution brought on record and about the findings and reasoning recorded by the Additional Sessions Judge in the judgment. The Additional Sessions Judge while deciding the matter is at liberty to reach at his own independent findings. The learned Additional Sessions Judge is directed to dispose of the case within a period of one month from the date of receipt of record and proceedings. The appeal is allowed accordingly. We quantify fees of Shri R. D. Mane, amicus curiae, at Rs. 500/-

16. Appeal allowed.

http://www.indiankanoon.org/doc/619829/

(Actually your petition should have been under Sec.391(1) Cr.P.C. before filing a writ (Crl.)
The Appellate court has the powers to take aditional evidence similar to the provisions of Order 41 rule 27 of cpc. if necessary to avoid any miscarriage of justice. Check following Case Law *Bhavlal Shankar Mahajan vs. state of Mah. 1997 Cr.l.j. 3060.)