SC allows couple to settle marital cruelty cases - admits 498a misuse and false cases filed by wife, but still orders husband to pay 15 Lac alimony ! A reward to unscrupulous judicial abuser wife ?

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 1794 OF 2013

      (Arising out of Special Leave Petition (Civil) No. 4782 of 2007)

K. SRINIVAS RAO                   …          APPELLANT

           Versus

D.A. DEEPA                        …          RESPONDENT

                                  JUDGMENT

(SMT.) RANJANA PRAKASH DESAI, J.

1.    Leave granted.

2.     This appeal, by special leave,  has  been  filed  by  the  appellant-

husband, being aggrieved by the judgment and order  dated  8/11/2006  passed

by the Andhra Pradesh High Court in Civil  Miscellaneous  Appeal  No.797/03,

setting aside the decree of divorce granted in his favour.

3.    The appellant-husband is working as Assistant Registrar in the  Andhra

Pradesh High Court. The  marriage  between  the  appellant-husband  and  the

respondent-wife was solemnized on 25/4/1999 as per Hindu rites and  customs.

Unfortunately, on the very next day disputes arose  between  the  elders  on

both sides which resulted in their abusing each other and  hurling  chappals

at each other. As a consequence, on 27/4/1999, the newly married couple  got

separated  without  consummation  of  the  marriage   and   started   living

separately.  On 4/10/1999, the respondent-wife lodged a  criminal  complaint

against the appellant-husband before  the  Women  Protection  Cell  alleging

inter alia that the appellant-husband is harassing her for more dowry.  This

complaint is very crucial to this case.  We  shall  advert  to  it  more  in

detail a little later.  Escalated acrimony led  to  complaints  and  counter

complaints. The respondent-wife filed a petition  under  Section  9  of  the

Hindu Marriage Act, 1955 for  restitution  of  conjugal  rights  before  the

Family Court, Secunderabad.  The  appellant-husband  filed  a  counter-claim

seeking dissolution of marriage on  the  ground  of  cruelty  and  desertion

under Section 13(1)(i-a) and (b) of the Hindu Marriage Act, 1955.

4.    The Family Court while dismissing  the  petition  for  restitution  of

conjugal rights and granting decree of divorce  inter  alia  held  that  the

respondent-wife stayed in the appellant-husband’s house only for a day,  she

admitted that she did not have any conversation with anyone  and  hence  any

amount of oral evidence adduced by her will not support her  plea  that  she

was harassed and driven out of the house; that the story that the appellant-

husband made a demand of dowry of Rs.10,00,000/- is false;  that  by  filing

false complaint against  the  appellant-husband  and  his  family,  alleging

offence under Section 498-A  of  the  IPC  in  the  Metropolitan  Magistrate

Court, Hyderabad and by filing complaints against the  appellant-husband  in

the High Court where  he  is  working,  the  respondent-wife  caused  mental

cruelty to the appellant-husband and that reunion  was  not  possible.   The

Family Court directed the appellant-husband to repay  Rs.80,000/-  given  by

the respondent-wife’s father to him with interest at 8% per annum  from  the

date of the marriage till payment.

5.    By the impugned judgment the High Court allowed the appeal carried  by

the respondent-wife against the said judgment and set aside  the  decree  of

divorce granted in favour of the appellant-husband.  The  High  Court  inter

alia observed that the finding of the Family Court that lodging a  complaint

with  the  police  against  the  appellant-husband  amounts  to  cruelty  is

perverse because it is not a ground for divorce  under  the  Hindu  Marriage

Act, 1955.  The High Court further held that the appellant-husband  and  the

respondent-wife did not live together for a long time  and,  therefore,  the

question  of  their  treating  each  other  with  cruelty  does  not  arise.

According to the High Court, the conclusion that the respondent-wife  caused

mental cruelty  to  the  appellant-husband  is  based  on  presumptions  and

assumptions.

6.    Mr. Jayanth  Muth  Raj,  learned  counsel  for  the  appellant-husband

assailed  the  conduct  of  the  respondent-wife  and  submitted   that   it

disentitles her from getting any relief from this Court.   Counsel  took  us

through the complaint lodged by the respondent-wife with the  Superintendent

of Police, Women Protection Cell, Hyderabad, making  defamatory  allegations

against the mother of the appellant-husband and drew our  attention  to  the

various legal proceedings initiated by  her  against  the  appellant-husband

and his family.  Counsel submitted that she also lodged complaints with  the

High Court asking for the removal of the  appellant-husband  from  his  job.

Counsel submitted that by lodging such false complaints the  respondent-wife

caused extreme mental cruelty to the appellant-husband.   Counsel  submitted

that the High Court fell into a grave error in observing  that  because  the

respondent-wife did not live with the appellant-husband for long  she  could

not have  caused  mental  cruelty  to  him.   Counsel  submitted  that  this

observation is erroneous and is contrary  to  the  law  laid  down  by  this

Court.  False and defamatory allegations made  in  the  pleadings  can  also

cause  mental  cruelty.    Counsel   submitted   that   the   marriage   has

irretrievably broken down and, therefore, it is necessary to dissolve it  by

a decree of divorce.  In support of his submissions counsel placed  reliance

on G.V.N. Kameswara Rao  vs.  G.  Jabilli[1],  Parveen  Mehta  vs.  Inderjit

Mehta[2],  Vijayakumar  R.  Bhate  vs.  Neela  Vijayakumar  Bhate[3],  Durga

Prasanna  Tripathy  vs.  Arundhati  Tripathy[4],  Naveen  Kohli  vs.   Neelu

Kohli[5] and Samar Ghosh vs. Jaya Ghosh[6].

7.    Mr. D. Rama Krishna Reddy, learned counsel  for  the  respondent-wife,

on the other hand, submitted that the  father  of  the  respondent-wife  had

given Rs.80,000/- and 15 tolas of gold as dowry to  the  appellant-husband’s

family.  However, they demanded additional cash of Rs.10,00,000/-.   Because

this demand could not  be  met,  the  respondent-wife  and  her  family  was

humiliated and ill-treated. Therefore, the parents  of  the  respondent-wife

had to return to their house along  with  her  immediately  after  marriage.

The father of the respondent-wife made efforts to  talk  to  the  appellant-

husband’s family, but, they did not respond to his efforts.  They  persisted

with their demands and, therefore, the respondent-wife  had  no  alternative

but to lodge complaint against them under Section 498-A of  the  IPC  before

the Metropolitan Magistrate, Hyderabad.   The  appellant-husband  thereafter

gave a false assurance that he will  not  harass  her  and,  therefore,  she

withdrew the complaint and went to  the  matrimonial  house.   However,  the

approach of the appellant-husband and his family did not change. She had  to

therefore renew her complaint.  Counsel submitted that only because  of  the

obstinate and uncompromising  attitude  of  the  appellant-husband  and  his

family that the respondent-wife had to take recourse to  court  proceedings.

Counsel submitted that the respondent-wife values the matrimonial tie.   She

wants to lead a happy married life with  the  appellant-husband.   She  had,

therefore, filed a petition for restitution of conjugal rights which  should

have been allowed  by  the  Family  Court.   Counsel  submitted  that  after

properly evaluating all the circumstances the High  Court  has  rightly  set

aside the decree of divorce and granted a decree of restitution of  conjugal

rights.  The High Court’s judgment, therefore, merits no interference.

8.    The matrimonial dispute started with a quarrel between the  elders  of

both sides in which initially the appellant-husband and the  respondent-wife

were not involved.  The  ego  battle  of  the  elders  took  an  ugly  turn.

Parties  were  dragged  to  the  court  and  the  inevitable  happened.  The

relations between the two families got strained. With a fond  hope  that  we

could bring about a settlement we requested  the  counsel  to  talk  to  the

parties and convey our wishes that they should bury the  hatchet  and  start

living  together.  We  also  tried  to  counsel  them  in  the  court.   The

respondent-wife appears to be very keen to go back to the  matrimonial  home

and start life afresh, but the appellant-husband is  adamant.   He  conveyed

to us through his counsel that by filing repeated false  complaints  against

him and his family the respondent-wife has caused extreme  cruelty  to  them

and therefore it will not be possible to take her back.  In view of this  we

have no option but to proceed with the case.

9.    The High Court has taken a view that since the  appellant-husband  and

the respondent-wife did not stay together, there is  no  question  of  their

causing  cruelty  to  each  other.   The  High  Court  concluded  that   the

conclusion drawn by the Family Court that the respondent-wife caused  mental

cruelty to the appellant-husband is erroneous.  We are unable to agree  with

the High Court.

10.   Under Section 13(1)(i-a) of the Hindu Marriage Act, 1955,  a  marriage

can be dissolved by a decree of divorce on a petition  presented  either  by

the husband or the wife on the  ground  that  the  other  party  has,  after

solemnization of the marriage, treated the petitioner with  cruelty.   In  a

series of judgments  this  Court  has  repeatedly  stated  the  meaning  and

outlined the scope of the term ‘cruelty’.   Cruelty  is  evident  where  one

spouse has so treated the other and manifested such feelings towards her  or

him as to cause in her or his mind reasonable apprehension that it  will  be

harmful or injurious  to  live  with  the  other  spouse.   Cruelty  may  be

physical or mental.

11.   In Samar Ghosh this Court set out illustrative cases  where  inference

of ‘mental cruelty’ can be drawn.  This list  is  obviously  not  exhaustive

because each case presents it’s own peculiar factual  matrix  and  existence

or otherwise of mental cruelty will have to be judged  after  applying  mind

to it.  We must quote the  relevant  paragraph  of  Samar  Ghosh.   We  have

reproduced only the instances which are relevant to the present case.

      “101. No uniform standard can ever be laid down for guidance,  yet  we

      deem it appropriate to enumerate some  instances  of  human  behaviour

      which may be relevant in dealing with the cases of  “mental  cruelty”.

      The  instances  indicated  in  the  succeeding  paragraphs  are   only

      illustrative and not exhaustive:

      (i) On consideration of complete  matrimonial  life  of  the  parties,

      acute mental pain, agony and suffering as would not make possible  for

      the parties to live with  each  other  could  come  within  the  broad

      parameters of mental cruelty.

      (ii) On comprehensive appraisal of the entire matrimonial life of  the

      parties, it becomes abundantly clear that situation is such  that  the

      wronged party cannot reasonably be asked to put up with  such  conduct

      and continue to live with other party.

      (iii)                  xxx   xxx  xxx

      (iv) Mental cruelty is a state of mind. The feeling of  deep  anguish,

      disappointment, frustration in one spouse caused  by  the  conduct  of

      other for a long time may lead to mental cruelty.

      (v) A sustained course of abusive and humiliating treatment calculated

      to torture, discommode or render miserable life of the spouse.

      (vi) Sustained unjustifiable  conduct  and  behaviour  of  one  spouse

      actually affecting physical and mental health of the other spouse. The

      treatment complained of and the resultant danger or apprehension  must

      be very grave, substantial and weighty.

      (vii)                  xxx   xxx  xxx

      (viii)                 xxx   xxx  xxx

      (ix)             xxx   xxx   xxx

      (x) The married life should be reviewed as a whole and a few  isolated

      instances over a period of years will not amount to cruelty.  The  ill

      conduct must be persistent for a  fairly  lengthy  period,  where  the

      relationship has deteriorated to an extent that because  of  the  acts

      and behaviour of a  spouse,  the  wronged  party  finds  it  extremely

      difficult to live with the other  party  any  longer,  may  amount  to

      mental cruelty.

      (xi)             xxx   xxx   xxx

      (xii)                  xxx   xxx  xxx

      (xiii)                 xxx   xxx  xxx

      (xiv) Where there has been a long period of continuous separation,  it

      may fairly be concluded that the matrimonial bond  is  beyond  repair.

      The marriage becomes a fiction though supported by  a  legal  tie.  By

      refusing to sever that tie, the law in such cases, does not serve  the

      sanctity of marriage; on the contrary, it shows scant regard  for  the

      feelings and emotions of the parties. In such like situations, it  may

      lead to mental cruelty.”

      It is pertinent to note that in this case the  husband  and  wife  had

lived separately for more than sixteen and a  half  years.   This  fact  was

taken  into  consideration  along  with  other  facts  as  leading  to   the

conclusion that matrimonial bond had been ruptured beyond repair because  of

the mental cruelty caused by the wife.  Similar view  was  taken  in  Naveen

Kohli.

12.   In V. Bhagat  v.  D. Bhagat[7]  in the divorce petition filed  by  the

husband the wife filed  written  statement  stating  that  the  husband  was

suffering from mental hallucination, that his was a morbid  mind  for  which

he needs expert  psychiatric  treatment  and  that  he  was  suffering  from

‘paranoid  disorder’.   In  cross-examination  her   counsel   put   several

questions to the husband suggesting  that  several  members  of  his  family

including his  grandfather  were  lunatics.   This  court  held  that  these

assertions cannot but constitute mental cruelty of such a  nature  that  the

husband cannot be asked to live with the wife  thereafter.   Such  pleadings

and questions it was held, are  bound  to  cause  immense  mental  pain  and

anguish to the husband.   In  Vijaykumar  Bhate  disgusting  accusations  of

unchastity and indecent familiarity  with  a  neighbour  were  made  in  the

written statement.  This  Court  held  that  the  allegations  are  of  such

quality, magnitude and consequence  as  to  cause  mental  pain,  agony  and

suffering amounting to the reformulated concept of  cruelty  in  matrimonial

law causing profound and lasting disruption and driving  the  wife  to  feel

deeply hurt and reasonably apprehend that it  would  be  dangerous  to  live

with her husband.  In Naveen Kohli the respondent-wife got an  advertisement

issued in a national newspaper that her husband was her employee.   She  got

another news  item  issued  cautioning  his  business  associates  to  avoid

dealing with him.  This  was  treated  as  causing  mental  cruelty  to  the

husband.

13.   In Naveen Kohli the  wife  had  filed  several  complaints  and  cases

against the husband.  This Court viewed her conduct  as  a  conduct  causing

mental cruelty and observed that the finding of the High  Court  that  these

proceedings could not be taken to be such which  may  warrant  annulment  of

marriage is wholly unsustainable.

14.   Thus, to the instances illustrative of mental cruelty noted  in  Samar

Ghosh, we could add  a  few  more.   Making  unfounded  indecent  defamatory

allegations against the spouse or his or her  relatives  in  the  pleadings,

filing of complaints or  issuing  notices  or  news  items  which  may  have

adverse impact on the business prospect or the job of the spouse and  filing

repeated false complaints and cases in the court against the  spouse  would,

in the facts of a case, amount  to  causing  mental  cruelty  to  the  other

spouse.

15.   We shall apply the above principles to the present case.  Firstly,  it

is necessary to have a look at  the  legal  proceedings  initiated  by  both

sides against each other.  The facts  on  record  disclose  that  after  the

marriage, due to some dispute which arose between  the  elders,  both  sides

abused and virtually attacked each other.  The respondent-wife was taken  by

her parents to their house.  According to the  respondent-wife,  her  father

made efforts to bring about an amicable settlement but the  other  side  did

not respond favourably and, therefore, on 4/10/1999 she lodged  a  complaint

with the  Superintendent  of  Police,  Women  Protection  Cell  against  the

appellant-husband  and  members  of  his  family.    In  our  opinion,  this

complaint is, to a large extent, responsible for widening the  rift  between

the  parties.   In  this  complaint,  after   alleging   ill-treatment   and

harassment for dowry, it is alleged that  mother  of  the  appellant-husband

asked the respondent-wife  to  sleep  with  the  father  of  the  appellant-

husband. When she was cross-examined in the Family Court during the  hearing

of her petition for  restitution  of  conjugal  rights  the  respondent-wife

admitted that she had lodged the complaint. PW-2 her mother, in  her  cross-

examination stated  that  though  they  had  asked  her  not  to  lodge  the

complaint, the respondent-wife lodged  it.   She  told  them  that  she  had

lodged the complaint because the  appellant-husband  was  not  listening  to

her.  Thus, it appears that this complaint was  lodged  out  of  frustration

and anger and was a reaction to  the  appellant-husband’s  refusal  to  live

with her.  It was, perhaps, felt by her that  because  of  the  pressure  of

such a complaint the appellant-husband would take her  back  to  his  house.

Far from helping the respondent-wife, the complaint appears to  have  caused

irreparable harm  to  her.   It  increased  the  bitterness.   Perhaps,  the

respondent-wife was misguided by someone.  But,  such  evidence  is  not  on

record.  Even in this court, this complaint appears to  us  to  be  a  major

factor amongst others impeding settlement.  Pursuant to the said  complaint,

Crime No.8/2000 was registered by C.I.D.,  Hyderabad,  in  the  Metropolitan

Magistrate (Mahila Court), Hyderabad against the appellant-husband  and  his

family under Section 498-A of the IPC.  It  is  the  respondent-wife’s  case

that the appellant-husband gave an assurance before the police that he  will

not harass her.  She, therefore, withdrew the complaint.   The  police  then

filed a closure report.  According to the  respondent-wife,  the  appellant-

husband did not abide by the promise made by him and, therefore,  she  filed

a protest petition.  The Magistrate Court, Hyderabad, then, took  cognizance

of the case and renumbered the case as C.C.No.62/2002.

16.   In the meantime,  the  respondent-wife  filed  O.P.No.88/2001  in  the

Family  Court,  Secunderabad,  for  restitution  of  conjugal  rights.   The

appellant-husband filed a counter claim  for  divorce  on  27/12/2002.   The

Family Court dismissed the petition for restitution of conjugal  rights  and

allowed the counter claim for divorce filed by the  appellant-husband.   The

respondent-wife challenged the Family Court judgment in the High Court.   On

8/12/2006 the High Court reversed the Family Court’s order and  allowed  the

petition for restitution of conjugal rights.  The present  appeal  is  filed

by the appellant-husband against the said judgment.

17.   According to the respondent-wife, on 17/9/2007 when  she,  along  with

her mother, came out of the court after a case  filed  by  her  against  the

appellant-husband was adjourned, the appellant-husband beat her  mother  and

kicked  her  on  her  stomach.   Both  of  them  received  injuries.    She,

therefore, filed complaint for the offence punishable under Section  324  of

the IPC against the appellant-husband (C.C.No. 79/2009).  It may  be  stated

here that on 19/10/2009 the appellant-husband was acquitted in this case.

18.    On  24/6/2008  the  judgment  was  delivered  by   Additional   Chief

Metropolitan Magistrate,  Hyderabad  in  C.C.No.  62/2002.   The  appellant-

husband was convicted under Section 498-A of the IPC and  was  sentenced  to

undergo six months simple imprisonment.  He and his parents  were  acquitted

of  the  offences  under  the  Dowry  Prohibition  Act.   His  parents  were

acquitted of the offence  under  Section  498-A  of  the  IPC.   After  this

judgment the respondent-wife and her parents filed a complaint in  the  High

Court saying that since the appellant-husband was  convicted  he  should  be

dismissed from service.  Similar letters were sent to the High Court by  the

maternal uncle of the respondent-wife.

19.   On 14/7/2008 the appellant-husband filed Criminal  Appeal  No.186/2008

challenging his conviction  under  Section  498-A  of  the  IPC  before  the

Metropolitan Sessions Judge.  It is pertinent to note that  the  respondent-

wife filed Criminal Appeal No.1219/2008 in the High  Court  questioning  the

acquittal of the appellant-husband and his parents  of  the  offences  under

the Dowry Prohibition Act and also the  acquittal  of  his  parents  of  the

offence punishable under Section 498-A of the IPC.  This appeal  is  pending

in the High Court.  Not being content with this, the  respondent-wife  filed

Criminal Revision Case No.1560/2008 in the High  Court  seeking  enhancement

of punishment awarded to the appellant-husband  for  offence  under  Section

498-A of the IPC.

20.   According to the appellant-husband on 6/12/2009  the  brother  of  the

respondent-wife came to their house and attacked  his  mother.   His  mother

filed a complaint and the police registered a complaint  under  Section  354

of the IPC.  The brother of the respondent-wife also lodged a complaint  and

an offence came to be registered.  Both the cases are pending.

21.   On 29/6/2010 Criminal Appeal No.  186/2010  filed  by  the  appellant-

husband challenging his conviction for the offence under  Section  498-A  of

the  IPC  was  allowed  by  the  Metropolitan  Sessions  Judge  and  he  was

acquitted.  The respondent-wife has filed criminal appeal in the High  Court

challenging the said acquittal which is pending.

22.   We need to now see the effect of the above events.   In  our  opinion,

the first instance of mental cruelty is seen in the scurrilous,  vulgar  and

defamatory statement made by the  respondent-wife  in  her  complaint  dated

4/10/1999 addressed to the Superintendent of Police, Women Protection  Cell.

 The statement that the mother of the appellant-husband asked her  to  sleep

with his  father  is  bound  to  anger  him.   It  is  his  case  that  this

humiliation of his parents caused great anguish to him.  He and  his  family

were traumatized by the false and indecent statement made in the  complaint.

 His grievance appears to us to be justified. This complaint is  a  part  of

the record.  It is a part of the pleadings.  That this  statement  is  false

is evident from the evidence of the mother of the respondent-wife, which  we

have already quoted.  This statement cannot be  explained  away  by  stating

that it was made because the respondent-wife was anxious to go back  to  the

appellant-husband.  This is not the way to win  the  husband  back.   It  is

well settled that such statements cause mental  cruelty.   By  sending  this

complaint the respondent-wife has caused mental cruelty  to  the  appellant-

husband.

23.     Pursuant to this complaint,  the  police  registered  a  case  under

Section 498-A of the IPC.  The appellant-husband  and  his  parents  had  to

apply for  anticipatory  bail,  which  was  granted  to  them.   Later,  the

respondent-wife withdrew the complaint.  Pursuant  to  the  withdrawal,  the

police filed a closure report.   Thereafter,  the  respondent-wife  filed  a

protest petition.  The trial court took cognizance of the case  against  the

appellant-husband and his parents (CC No. 62/2002).  What  is  pertinent  to

note is that the respondent-wife filed criminal appeal  in  the  High  Court

challenging the acquittal of the appellant-husband and his  parents  of  the

offences under the Dowry Prohibition Act  and  also  the  acquittal  of  his

parents of the offence punishable under Section  498-A  of  the  IPC.    She

filed criminal revision seeking enhancement of  the  punishment  awarded  to

the appellant-husband for the offence under Section 498-A of the IPC in  the

High Court which is still pending.  When the criminal appeal  filed  by  the

appellant-husband challenging his conviction for the offence  under  Section

498-A of the IPC was allowed  and  he  was  acquitted,  the  respondent-wife

filed criminal appeal in the High  Court  challenging  the  said  acquittal.

During this period respondent-wife and  members  of  her  family  have  also

filed complaints in the High Court complaining about  the  appellant-husband

so that he would be removed from the job.  The conduct  of  the  respondent-

wife in  filing  a  complaint  making  unfounded,  indecent  and  defamatory

allegation  against  her   mother-in-law,   in   filing   revision   seeking

enhancement of the sentence awarded  to  the  appellant-husband,  in  filing

appeal questioning the acquittal of the appellant-husband and  acquittal  of

his parents indicates that she made all attempts to ensure that he  and  his

parents are put in jail and he is removed from his job.  We have  no  manner

of doubt that this conduct has  caused  mental  cruelty  to  the  appellant-

husband.

24.   In  our  opinion,  the  High  Court  wrongly  held  that  because  the

appellant-husband and the respondent-wife did not stay together there is  no

question of the parties causing cruelty to  each  other.   Staying  together

under the same roof is not a pre-condition for mental cruelty.   Spouse  can

cause mental cruelty by his or her conduct even  while  he  or  she  is  not

staying under the same roof.  In a given case, while staying away, a  spouse

can cause  mental  cruelty  to  the  other  spouse  by  sending  vulgar  and

defamatory letters or  notices  or  filing  complaints  containing  indecent

allegations or by initiating  number  of  judicial  proceedings  making  the

other spouse’s life miserable.  This is what has happened in this case.

25.   It is also to be noted that the appellant-husband and the  respondent-

wife are staying apart from 27/4/1999.  Thus,  they  are  living  separately

for more than ten  years.   This  separation  has  created  an  unbridgeable

distance between the two.  As held in Samar Ghosh, if  we  refuse  to  sever

the tie, it may lead to mental cruelty.

26.   We are also satisfied that  this  marriage  has  irretrievably  broken

down.       Irretrievable breakdown of marriage is not a ground for  divorce

under the Hindu Marriage Act, 1955.  But, where marriage  is  beyond  repair

on account of bitterness created by the acts of the husband or the  wife  or

of both, the courts have always taken irretrievable  breakdown  of  marriage

as a very weighty circumstance amongst  others  necessitating  severance  of

marital tie.  A marriage which is dead for all purposes  cannot  be  revived

by the court’s verdict, if the parties are  not  willing.  This  is  because

marriage involves human sentiments and emotions and  if  they  are  dried-up

there is hardly any chance of their springing back to  life  on  account  of

artificial reunion created by the court’s decree.

27.   In V. Bhagat this Court noted that divorce petition  was  pending  for

eight years and a good part of the  lives  of  both  the  parties  had  been

consumed in litigation, yet the end was not in sight.  The facts  were  such

that there was no question of reunion,  the  marriage  having  irretrievably

broken down.  While dissolving the marriage on the ground of mental  cruelty

this Court observed that  irretrievable  breakdown  of  marriage  is  not  a

ground by  itself,  but,  while  scrutinizing  the  evidence  on  record  to

determine whether the grounds alleged are made out and  in  determining  the

relief to be granted the said circumstance can certainly be borne  in  mind.

In Naveen Kohli, where husband and wife had been living separately for  more

than 10 years and a large number of criminal proceedings had been  initiated

by the wife against the husband, this Court observed that the  marriage  had

been wrecked beyond the hope of salvage and public interest and interest  of

all concerned lies in the recognition of the fact and to declare defunct  de

jure what is already defunct de facto.  It is  important  to  note  that  in

this case this Court made a recommendation to the Union of  India  that  the

Hindu Marriage Act, 1955 be amended to incorporate  irretrievable  breakdown

of marriage as a ground for the grant of divorce.

28.   In the ultimate analysis, we hold that the respondent-wife has  caused

by her conduct mental cruelty to the appellant-husband and the marriage  has

irretrievably broken down.  Dissolution of marriage will relieve both  sides

of pain and anguish.  In this Court the respondent-wife expressed  that  she

wants to go back to the appellant-husband, but, that is  not  possible  now.

The appellant-husband is not willing to take her back.  Even  if  we  refuse

decree of divorce to the appellant-husband, there are hardly any chances  of

the respondent-wife leading a happy life with the appellant-husband  because

a lot of bitterness is created by the conduct of the respondent-wife.

29.   In Vijay Kumar, it was submitted that if the decree of divorce is  set

aside, there may be fresh  avenues  and  scope  for  reconciliation  between

parties.   This  court  observed  that  judged  in  the  background  of  all

surrounding circumstances, the claim appeared to  be  too  desolate,  merely

born out of despair rather than based upon any  real,  concrete  or  genuine

purpose or aim.  In the facts of this case we feel the same.

30.   While we are of the opinion that decree of divorce  must  be  granted,

we are alive to the plight of the  respondent-wife.   The  appellant-husband

is working as an Assistant Registrar in the Andhra Pradesh High  Court.   He

is getting a good salary.  The respondent-wife  fought  the  litigation  for

more than 10 years.  She appears to be entirely  dependent  on  her  parents

and on her brother, therefore, her future must be secured by  directing  the

appellant-husband  to  give  her  permanent  alimony.   In  the  facts   and

circumstance of this case, we are of the opinion that the  appellant-husband

should be directed to pay a sum  of  Rs.15,00,000/-  (Rupees  Fifteen  Lakhs

only) to the respondent-wife as and by way of  permanent  alimony.   In  the

result, the impugned judgment  is  quashed  and  set  aside.   The  marriage

between the appellant-husband - K. Srinivas Rao and  the  respondent-wife  -

D.A. Deepa is dissolved by  a  decree  of  divorce.   The  appellant-husband

shall  pay  to  the  respondent-wife  permanent  alimony  in  the   sum   of

Rs.15,00,000/-, in three instalments.  The first instalment of Rs.5,00,000/-

 (Rupees Five Lakhs only) should be paid on  15/03/2013  and  the  remaining

amount  of  Rs.10,00,000/-  (Rupees  Ten  Lakhs  only)  should  be  paid  in

instalments of Rs.5,00,000/-  each  after  a  gap  of  two  months  i.e.  on

15/05/2013 and 15/07/2013 respectively.  Each  instalment  of  Rs.5,00,000/-

be paid by a demand draft drawn  in  favour  of  the  respondent-wife  “D.A.

Deepa”.

31.   Before parting, we wish to touch upon  an  issue  which  needs  to  be

discussed in the interest of victims of  matrimonial  disputes.   Though  in

this case, we have recorded a finding that by her conduct,  the  respondent-

wife has caused mental cruelty to  the  appellant-husband,  we  may  not  be

understood, however, to  have  said  that  the  fault  lies  only  with  the

respondent-wife.   In matrimonial disputes there is hardly  any  case  where

one spouse is entirely at fault.  But,  then,  before  the  dispute  assumes

alarming proportions, someone must make efforts to make parties see  reason.

 In this case, if at the earliest stage, before  the  respondent-wife  filed

the complaint making indecent  allegation  against  her  mother-in-law,  she

were to be counselled by  an  independent  and  sensible  elder  or  if  the

parties were sent to a mediation centre or if they  had  access  to  a  pre-

litigation clinic, perhaps the bitterness would not have escalated.   Things

would not have come to such  a  pass  if,  at  the  earliest,  somebody  had

mediated between the two.  It  is  possible  that  the  respondent-wife  was

desperate to save the marriage.  Perhaps, in desperation, she  lost  balance

and went on filing complaints.  It  is  possible  that  she  was  misguided.

Perhaps, the appellant-husband should  have  forgiven  her  indiscretion  in

filing complaints in the larger interest of matrimony.   But,  the  way  the

respondent-wife approached the problem was wrong.  It portrays a  vindictive

mind.  She caused extreme mental cruelty to the appellant-husband.  Now  the

marriage is beyond repair.

32.   Quite often, the  cause  of  the  misunderstanding  in  a  matrimonial

dispute is trivial and can be sorted. Mediation as a method  of  alternative

dispute resolution has got legal recognition now.  We have referred  several

matrimonial disputes to mediation centres.  Our experience shows that  about

10 to 15% of matrimonial disputes get settled in this Court through  various

mediation centres.  We, therefore, feel that  at  the  earliest  stage  i.e.

when the dispute is taken up by the Family Court or by the  court  of  first

instance  for  hearing,  it  must  be   referred   to   mediation   centres.

Matrimonial disputes  particularly  those  relating  to  custody  of  child,

maintenance, etc. are preeminently fit  for  mediation.  Section  9  of  the

Family Courts Act enjoins upon the Family Court to make  efforts  to  settle

the matrimonial disputes and in these efforts, Family  Courts  are  assisted

by Counsellors.  Even if the Counsellors fail in their efforts,  the  Family

Courts should  direct  the  parties  to  mediation  centres,  where  trained

mediators are appointed to mediate between the parties.   Being  trained  in

the skill of mediation, they produce good results.

33.   The idea of  pre-litigation  mediation  is  also  catching  up.   Some

mediation centres have, after giving wide publicity, set up “Help Desks”  at

prominent places  including  facilitation  centres  at  court  complexes  to

conduct pre-litigation mediation.  We are informed that in Delhi  Government

Mediation and Conciliation  Centres,  and  in  Delhi  High  Court  Mediation

Centre, several matrimonial disputes are  settled.   These  centres  have  a

good success rate in pre-litigation mediation.   If  all  mediation  centres

set up pre-litigation  desks/clinics  by  giving  sufficient  publicity  and

matrimonial disputes  are  taken  up  for  pre-litigation  settlement,  many

families will be saved of hardship if, at least, some of them  are  settled.

34.   While purely a civil matrimonial dispute can be amicably settled by  a

Family Court either by itself or by directing the  parties  to  explore  the

possibility of settlement through mediation, a complaint under Section  498-

A  of  the  IPC  presents  difficulty  because  the  said  offence  is   not

compoundable except in  the  State  of  Andhra  Pradesh  where  by  a  State

amendment, it has been made compoundable.  Though in  Ramgopal  &  Anr.   v.

State of Madhya Pradesh & Anr.[8], this Court requested the  Law  Commission

and the Government of India to  examine  whether  offence  punishable  under

Section 498-A of the IPC could be made compoundable, it has  not  been  made

compoundable as yet.   The  courts  direct  parties  to  approach  mediation

centres where offences are compoundable.  Offence punishable  under  Section

498-A being a non-compoundable offence, such a course  is  not  followed  in

respect thereof.  This Court has always  adopted  a  positive  approach  and

encouraged  settlement  of  matrimonial  disputes  and   discouraged   their

escalation.  In this connection, we must refer  to  the  relevant  paragraph

from G.V. Rao  v. L.H.V. Prasad & Ors.[9], where the complaint  appeared  to

be the result of matrimonial dispute, while refusing to interfere  with  the

High Court’s order quashing the complaint, this court  made  very  pertinent

observations, which read thus:

      “12. There has been an outburst  of  matrimonial  disputes  in  recent

      times. Marriage is a sacred ceremony, the main purpose of which is  to

      enable the young couple to settle down in life  and  live  peacefully.

      But little matrimonial skirmishes suddenly erupt  which  often  assume

      serious proportions resulting in commission of heinous crimes in which

      elders of the family are also involved with the result that those  who

      could have counselled and brought  about  rapprochement  are  rendered

      helpless on their being arrayed as accused in the criminal case. There

      are many other reasons which  need  not  be  mentioned  here  for  not

      encouraging matrimonial litigation so that the parties may ponder over

      their  defaults  and  terminate  their  disputes  amicably  by  mutual

      agreement instead of fighting it out in a court of law where it  takes

      years and years to conclude and in that process the parties lose their

      “young” days in chasing their “cases” in different courts.”

      In B.S. Joshi & Ors.  v.  State of Haryana & Anr.[10], after referring

to the above observations, this Court stated that the said observations  are

required to be kept  in  view  by  courts  while  dealing  with  matrimonial

disputes and held that complaint involving offence under  Section  498-A  of

the IPC can be quashed by the High Court in exercise  of  its  powers  under

Section 482 of the Code if the parties settle their dispute.   Even in  Gian

Singh  v.  State of Punjab & Anr.[11], this  Court  expressed  that  certain

offences which overwhelmingly and  predominantly  bear  civil  flavour  like

those arising out of matrimony, particularly relating to dowry, etc. or  the

family dispute and where  the  offender  and  the  victim  had  settled  all

disputes between them amicably, irrespective of the fact that such  offences

have not been made compoundable, the  High  Court  may  quash  the  criminal

proceedings if it feels that by not quashing the same, the ends  of  justice

shall be defeated.

35.   We, therefore, feel that though offence punishable under Section  498-

A of the IPC is not compoundable, in appropriate cases if  the  parties  are

willing and if it appears to the criminal court that  there  exist  elements

of settlement, it should direct the parties to explore  the  possibility  of

settlement through  mediation.   This  is,  obviously,  not  to  dilute  the

rigour, efficacy and purport of Section 498-A of  the  IPC,  but  to  locate

cases where the matrimonial dispute can be nipped in  bud  in  an  equitable

manner.  The judges, with their expertise, must ensure  that  this  exercise

does not lead to the erring spouse using mediation process  to  get  out  of

clutches of the law. During mediation, the  parties  can  either  decide  to

part company on mutually agreed terms or they may decide  to  patch  up  and

stay together.  In either case for  the  settlement  to  come  through,  the

complaint will have to be quashed.  In that event,  they  can  approach  the

High Court and get the complaint quashed.  If  however  they  chose  not  to

settle, they can proceed with the complaint.  In this exercise, there is  no

loss to anyone. If there is settlement, the parties will be saved  from  the

trials and tribulations of a criminal case and that will reduce  the  burden

on the courts which will be in the larger public interest.   Obviously,  the

High  Court  will  quash  the  complaint  only  if  after  considering   all

circumstances it finds the settlement to be equitable and genuine.   Such  a

course, in our opinion, will be beneficial to those who  genuinely  want  to

accord a quietus to their matrimonial disputes.  We would, however, like  to

clarify that reduction of burden of cases on the courts  will,  however,  be

merely an incidental benefit and not the reason for sending the parties  for

mediation.  We recognize ‘mediation’ as an effective method  of  alternative

dispute resolution in matrimonial matters and that  is  the  reason  why  we

want the parties to explore the possibility of settlement through  mediation

in matrimonial disputes.

36.   We, therefore, issue directions, which the  courts  dealing  with  the

matrimonial matters shall follow:

     a) In terms of Section 9 of the Family Courts Act, the  Family  Courts

        shall make all efforts to settle the matrimonial  disputes  through

        mediation.  Even if the Counsellors submit a  failure  report,  the

        Family Courts shall, with the consent of  the  parties,  refer  the

        matter to the mediation centre.   In  such  a  case,  however,  the

        Family Courts shall set  a  reasonable  time  limit  for  mediation

        centres to complete the process of mediation because otherwise  the

        resolution of the disputes by the Family Court may get delayed.  In

        a given case, if there is good chance  of  settlement,  the  Family

        Court in its discretion, can always extend the time limit.

     b) The criminal courts dealing with the complaint under Section  498-A

        of the IPC should, at any stage and particularly, before they  take

        up the complaint for hearing, refer the parties to mediation centre

        if they feel that there exist elements of settlement and  both  the

        parties are willing.  However, they should take care to see that in

        this exercise, rigour, purport and efficacy of Section 498-A of the

        IPC is not diluted.  Needless to say that the discretion  to  grant

        or not to grant bail is not in any way curtailed by this direction.

        It will be for the concerned  court  to  work  out  the  modalities

        taking into consideration the facts of each case.

     c) All mediation centres shall set  up  pre-litigation  desks/clinics;

        give them wide publicity and make  efforts  to  settle  matrimonial

        disputes at pre-litigation stage.

37.   The appeal is disposed of in the aforestated terms.

                                                       ……………………………………………..J.

                                       (AFTAB ALAM)

                                                       ……………………………………………..J.

                                              (RANJANA PRAKASH DESAI)

NEW DELHI,

FEBRUARY 22, 2013.

-----------------------

[1]    (2002) 2 SCC 296

[2]    (2002) 5 SCC 706

[3]    (2003) 6 SCC 334

[4]    (2005) 7 SCC 353

[5]    (2006) 4 SCC 558

[6]    (2007) 4 SCC 511

[7]    (1994) 1 SCC 337

[8]    (2010) 13 SCC 540

[9]    (2000) 3 SCC 693

[10]   AIR 2003 SC 1386

[11]   (2012) 10 SCC 303

-----------------------

33

source - http://judis.nic.in/supremecourt/imgst.aspx?filename=40084

Cross examination shatters 498a 304B case- U-turn by deceased’s(wife) parents who deny their own allegations- Aquittal of husband and family members

IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT,
(New Delhi & South East District)
PATIALA HOUSE COURTS, NEW DELHI
SC No.146/09
FIR No.39/07
U/s 498A/304B/406/34 IPC
PS C.R.Park
State
Vs.
1. Sandeep Chopra s/o Chaman Lal Chopra
2. Sonika Chopra w/o Sanjay Chopra
3. Chaman Lal Chopra s/o Late Sh. Rattan Lal Chopra
4. Sanjay Chopra s/o Chaman Lal Chopra
5. Vipin Chopra s/o Chaman Lal Chopra
6. Ekta Chopra w/o Vipin Chopra
7. Sudesh Chopra w/o Chaman Lal Chopra (Since expired)
............Accused
Challan filed on : 10.05.07
Received by Fast Track Court on:30.11.09
Reserved for Order on : 27.08.2010
Judgment delivered on : 31.08.2010
JUDGMENT
Briefly stated the facts of the prosecution case are that on
09.02.07 on receipt of DD no.13A regarding hanging of one lady at D-
720 CR Park, Delhi, SI Tika Ram alongwith Ct. Azad reached at the spot
and found one Shefali W/o Sandeep hanging with dupatta with ceiling
State Vs.Sandeep Chopra  etc.
FIR no.39/07                                                                                  Page No. 1 of 36fan. Crime team was summoned at the spot and HC Giriraj took some
photographs. The Executive Magistrate was informed and he also
reached at the spot and dead body was removed from the ceiling fan
after cutting the dupatta. The Executive Magistrate recorded the
statements of parents of deceased. The statement of Smt. Anita Bhatia is
Ex.PW2/A in which she has alleged that the engagement ceremony of
her daughter Shefali was solemnized with Sandeep Chopra on
10.02.2006 and they spent about Rs.10.00 in the engagement ceremony
and they spent about Rs.30.00 lacs on the marriage of her daughter
Shefali. After marriage Sandeep came to their residence and stated asked
as to why they have not called his friend Raju and uttered that he is
everything for him. After that Sandeep started quarreling with their
daughter. He is a drunker and also a gambler. They were under the
impression that Sandeep will improve after birth of child. On 18th
Jan.
2007, a male baby has been born out of the wedlock and on that
occasion, Sandeep demanded Skoda Car from them. In the marriage they
had given Accent Car of red colour bearing no. HR 29P 4907 to accused
Sandeep but he had passed on this car to his sister. They went to the
matrimonial house of their daughter and urged the parents of Sandeep to
make him understand but they also paid no heed and inturn started
uttering to Shefali that she should perform her work properly. Sandeep
had a fight with his own brothers because of Raju. He used to utter that
he will not leave Raju but he can leave Shefali. Whenever they visited
the matrimonial house of Shefali, her father in law, mother in law,
State Vs.Sandeep Chopra  etc.
FIR no.39/07                                                                                  Page No. 2 of 36Sandeep and his brothers used to given them a long list of items and ask
them that they have to give those items otherwise it will not be in their
interest. Sandeep uttered to them that if their demands will not be
fulfilled and they did not take care of his friend Raju, he will leave
Shefali at her parents house. He used to come to home after 11 p.m after
consuming liquor and he used unparliamentary language to Shefali. He
used to beat her by giving leg blows during pregnancy. All the accused
persons Chaman Lal Chopra, Sandeep Chopra, Raju, his wife Neetu,
Sonika Chopra, Vipin Chopra, Ekta Chopra and Anju Chopra have killed
her daughter and thereafter hanged her with fan and it was informed to
them at about 9.15 p.m that Shefali has committed suicide. On this
statement SDM has directed the SHO PS C.R Park to register the case
u/s 498A/304B/406/34 IPC. The case was registered and investigation
was done. The accused persons were arrested and after completion of
investigation challan was filed.
2. Being the case of the category exclusively triable by the court
of Sessions, after committal proceedings, it was assigned to the court of
sessions and charge against accused persons u/s 304B/498A/406/34 IPC
has been framed on 22.02.08 against accused Sandeep Chopra, Chaman
Lal, Sudesh Chopra(Since deceased), Vipin Chopra, Ekta Chopra,
Sanjay Chopra and Sonika Chopra to which all the accused persons
pleaded not guilty and claimed trial.
State Vs.Sandeep Chopra  etc.
FIR no.39/07                                                                                  Page No. 3 of 363. The prosecution to bring home the guilt of accused persons
has  examined in all 16 witnesses.
4. The incriminating evidence against the accused persons were
put to them in their statements recorded u/s 313 Cr.P.C in which they
have denied each and every allegation and stated that they have been
falsely implicated in this case. Thereafter the case was fixed for final
arguments.
5. I have heard Sh Inder Kumar Ld. APP for the State as well as
Sh Ramesh Gupta, Sr. Advocate for the accused persons.
6. In view of the submissions made by Ld.Counsel for defence
as well as Ld.APP for the State, I have also perused the documents and
testimonies of each witness carefully. During the course of arguments
Ld. counsels for the accused persons have drawn the attention of the
court on the testimonies of each witness and stated that the statements
given by the relatives of the deceased are contradicting to each other and
they have made glaring improvements in their testimonies. It has further
been stated that no demand for dowry was ever made by the accused
persons and the deceased was never harassed for dowry. Ld. counsel has
drawn the attention on the testimonies of each and every witnesses and
stated that  no case is made out against the accused persons and they may
kindly be acquitted.
State Vs.Sandeep Chopra  etc.
FIR no.39/07                                                                                  Page No. 4 of 367. On the other hand Ld.APP for the State has stated that no
improvement have been made by the PWs because they has stated as per
the statement recorded u/s 161 Cr.P.C and the statement recorded by the
SDM. The relatives of the deceased have made specific allegations
against the accused persons for demand of dowry and harassment due to
which Shefali committed suicide. It has been further submitted that
accused persons may kindly be punished in accordance with law.
8. In view of the submissions made by the Ld.defence counsels
as well as Ld.APP for the State, I have also perused the testimonies of
witnesses.
9. PW1 Kuldeep Bhatia is the father of deceased Shefali. He has
stated that SDM has recorded his statement which is Ex.PW1/A. He
identified the dead body of his daughter vide staetment Ex.PW1/B and
received the dead body vide memo Ex.PW1/C. He handed over the list
of dowry to the police which is Ex.PW1/D and photographs which are
Ex.PW1/E & F.
10. PW2 Anita Bhatia is the complainant and mother of
deceased Shefali. She has stated that SDM has recorded her statement
which is Ex.PW2/A. She has stated that accused persons demanded
Skoda from her at the time when her daughter gave birth to a male baby.
State Vs.Sandeep Chopra  etc.
FIR no.39/07                                                                                  Page No. 5 of 3611. PW3 Dr. Akhilesh has stated that Dr. MG Jai and Dr.
Raghvender had conducted the post mortem on the dead body of Shefali.
the post mortem report is Ex.PW3/A.
12. PW4 Rajan Bhatia is the maternal uncle of deceased Shefali
and he has stated that Raju demanded skoda car from Anita Bhatia and
Kuldeep Bhatia. He has been declared hostile by the prosecution and
cross examined by the Ld. APP for the State.
13. PW5 Sahil Bhatia is the brother of deceased Shefali and he
has not supported the case of the prosecution and he has been declared
hostile by the prosecution and cross examined by the Ld. APP for the
State but in vain.
14. PW6 Ct. Azad Singh reached at the spot with SI Tika Ram
and he has stated that they found one lady hanging with ceiling fan with
the help of chuni. The executive Magistrate came there and he recorded
the statements of the parents of deceased. The dead body was sent to
Mortuary. IO prepared the rukka and got the case registered through him.
He further deposed about seizure of articles from the spot vide memo
Ex.PW5/A,B and C. He further deposed that accused Sandeep was
arrested vide memo Ex.PW6/A and his personal search was conducted
vide memo Ex.PW6/B. He further deposed about arrest of accused
State Vs.Sandeep Chopra  etc.
FIR no.39/07                                                                                  Page No. 6 of 36Chaman Lal on 10.2.07 vide memo Ex.PW6/C and conducting of his
personal search vide memo Ex.PW6/D. He recorded the disclosure
statement of accused Sandeep Chopra which is Ex.PW6/E. He identified
the chappal, key with chhalla as Ex.Pw6/Article1 and Ex.PW6/article2.
15. PW7 Ct. Gopal Prasad has deposed that on 9.2.07 he reached
at the spot with SI Tika Ram. He was sent by SI Tika Ram with dead
body to mortuary of AIIMS. He handed over the pulland given to him in
the hospital to IO which was seized vide memo Ex.PW7/A.
16. PW8 HC Sarjeet Singh has deposed that he was posted in
control Room, PHQ on 9.2.07 and he received telephone call from no.
9811111118 from Vipin Chopra that his sister in law has killed herself
and he recorded the same in form which is Ex.PW8/A.
17. PW9 HC Giriraj is the witness from crime team and he took
photographs which are Ex.PW9/A6 to A10 and negatives are
Ex.PW9/A1 to A5.
18. PW10 HC Rajeev has recorded the FIR of this present case.
The copy of FIR is Ex.PW10/A.
19. PW11 SI Naveen Kumar has deposed that on 9.2.07 he was
posted in crime team and after inspecting the spot he prepared his report
State Vs.Sandeep Chopra  etc.
FIR no.39/07                                                                                  Page No. 7 of 36which is Ex.PW11/A.
20. PW12 Ct.Tejpal has deposed that he delivered the copies of
FIR to Joint CP, ACP and area ACP on 9.10.07 (should be 09.02.07).
21. PW13 SI Tika Ram is the first IO and he reached at the spot
with Ct. Azad where they found one lady Shefali hanging from Ceiling
fan with dupatta. He called Executive Magistrate and crime team. He has
stated that Executive Magistrate recorded the statements of the parents of
the deceased on the basis of which he got the case registered. He seized
the articles lying at the spot vide memo Ex.PW5/A, B and C. He
prepared the site plan Ex.PW13/B. He arrested accused Sandeep,
conducted his personal search and recorded his disclosure statement. He
got conducted the post mortem on the dead body of Shefali and after post
mortem handed over the dead body to her father and brother vide memo
Ex.PW1/C. He arrested accused Chaman Lal and conducted his personal
search. He got prepared the scaled site plan. He identified the case
property.
22. PW14 Sh. RK Saini is the Executive Magistrate who
recorded the statements of Kuldeep Bhatia and Anita Bhatia Ex.PW1/A
and Ex.PW2/A and he has instructed the SHO to take legal action vide
endorsement Ex.PW14/A.
State Vs.Sandeep Chopra  etc.
FIR no.39/07                                                                                  Page No. 8 of 3623 PW15 SI Mahesh has prepared the scaled site plan which is
Ex.PW15/A.
24. PW16 Insp. Jogender Kumar is the second IO and he
formally arrest accused Raj Kumar vide memo Ex.PW16/C. He seized
the photographs and marriage invitation card vide memo Ex.PW16/D.
He also seized the accent car vide memo Ex.PW16/E.
25. In the overall analysis of the testimonies of all the PWS it is
revealed that PW1 Kuldeep Bhatia is the father of deceased, PW2 Anita
Bhatia is the mother of deceased, PW4 Rajan Bhatia is the maternal
uncle of deceased and PW5 Sahil Bhatia is the brother of deceased
Shefali. PW2 Smt. Anita Bhatia is the complainant and mother of the
deceased. These witnesses including PW14 Sh RK Saini, the then
Executive Magistrate are the main star witnesses of the prosecution.
PW1,2,4 & 5 are the near relatives of the deceased.
26. To bring the guilt of the accused persons u/s 498A/ 304 B
IPC it is necessary to discuss the relevant provisions. Section 304B
relates to dowry death. The same was introduced in the Indian Penal
Code and it reads as under:-
304 B (1)
Where the death of a woman is caused by any burns or bodily
State Vs.Sandeep Chopra  etc.
FIR no.39/07                                                                                  Page No. 9 of 36injury or occurs otherwise than under normal circumstances within seven
years of her marriage and it is shown that soon before her death she was
subjected to cruelty or harassment by her husband or any relative of her
husband for or in connection with any demands for dowry such death
shall be called dowry death and such husband or relative shall be deemed
to have caused her death.
For the purpose of this sub section dowry shall have the same
meaning as in section 2 of the dowry prohibition Act 1961.
'Whoever commits dowry death shall be punished with
imprisonment for a term which shall not be less than 7 years but which
may extend to imprisonment for life'.
And if the ingredients of section 304B have been completed
then the presumption u/s 113 B in the Indian Evidence Act is required.
Section 113 B
Presumption as to dowry death - when the question whether a
person has committed the dowry death of a woman and it is shown that
soon before her death such woman had been subjected by such person to
cruelty or harassment for or in connection with any demand for dowry,
the court shall presume that such person had caused the dowry death.
In a case of dowry death cruelty on part of husband towards
his wife by prosecution has to be proved beyond reasonable doubt and
section 113 B of Evidence Act does not alter this requirement of stick
proof.
And section 498 A IPC reads as under:-
State Vs.Sandeep Chopra  etc.
FIR no.39/07                                                                                  Page No. 10 of 36'Husband or relatives of husband of a woman subjecting her
to cruelty – Whoever being the husband or the relative of the husband or
a woman subjects such woman to cruelty shall be punished with
imprisonment for a term which may extend to three years and shall be
liable to fine'.
27. There is explanation for the purpose of this section cruelty
means:-
(a) any wilful 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 or
(b) Harassment of the woman where such harassment is with a view to
coercing her or any person related to her to meet any unlawful demand
for any property or valuable security or is on account of failure by her or
any person related to her to meet such demand.
28. In the normal circumstances though cruelty at any time after
marriage may cause depression in the mind of the victim, the cruelty and
harassment envisaged by section 304B is to be seen before the death of
a woman and it is the duty of the court to scrutinize the evidence
carefully because cases are not rare in which occasionally there is
demand and then the atmosphere becomes calm and quiet and then
again there is demand. Where a wife dies in the house of the husband
within the short span of seven years of her marriage, it is of considerable
difficulty to assess the precise circumstances in which the incident
occurred because ordinarily independent witnesses are not available as
State Vs.Sandeep Chopra  etc.
FIR no.39/07                                                                                  Page No. 11 of 36the torture and harassment is confined in the four walls of the house.
However, the courts are to be vigilant to scrutinize the evidence
regarding the harassment and torture carefully if the witnesses are
relatives of the deceased and relations between them and her in laws are
strained for any reason whatsoever it might be.
29. Urge for living is a natural phenomenon in mankind. A
person would not embrace death unless there is some psychological
trouble or mental agony or such circumstances that the person
committing suicide may think that the life he or she is living is more
miserable than the pangs and agony of death. The power of tolerance
would vary from person to person. Some persons try to make the life
easy by tolerance while others even on petty points bring an end to their
life. 
30. Reverting back to the testimonies of witnesses firstly I would
consider the testimonies of the witnesses adduced by the prosecution
who are related to deceased Shefali. PW4 Rajan Bhatia is the maternal
uncle of deceased and he has stated that Shefali was got married to
Sandeep on 6.3.06 as per Hindu Rites and Customs and Accent car was
given to him in the dowry alongwith other gold and silver jewellery. His
brother in Law spent Rs.15 to 20 lac on the marriage of Shefali. One
friend named Raju @ Raj Kumar of accused Sandeep Chopra used to
demand more dowry from his brother in law Kuldeep Bhatia and
State Vs.Sandeep Chopra  etc.
FIR no.39/07                                                                                  Page No. 12 of 36whenever complaint has been made to Sandeep Chopra, he used to say
that whatever Raju says that is final. His niece was not kept well in the
house. Shefali told her that she is not happy in her in laws house. He has
further stated that at the time of delivery of first child Raju demanded
Skoda car from Kuldeep Bhatia. On receiving the message regarding
death of Shefali he reached in Chitranjan Park and found Shefali hanging
with fan. This witness has been declared hostile by the prosecution and
cross examined by the Ld. APP for the State wherein he has admitted
that the accent car which was gifted in the dowry, the same was further
gifted to the sister in law nanad/sister in law named Gitanjali. He denied
that when his jija Kuldeep and his family reached at the house of accused
persons, some hot exchange took place between them and then accused
persons went away from their house. He denied that the half portion of
the dupatta which was cut down from the neck of Shefali was taken in
police custody alongwith two pair of lady's chappal and key with
chhalla. He did not state to the police that Shefali committed suicide due
to harassment and demand of dowry by the accused persons and she
expired due to harassment for demand of dowry. He cannot identify the
exhibits which were lifted by the police. I have also considered the cross
examination wherein he has admitted that he has never been to the house
of his sister after or prior to the marriage of his niece Shefali. When he
has not visited the house of his sister, it is not understandable as to how
he came to know that there was some demand for dowry from the side of
accused persons. He has further stated that once only his deceased niece
State Vs.Sandeep Chopra  etc.
FIR no.39/07                                                                                  Page No. 13 of 36disclosed him regarding the harassment otherwise his sister used to tell
him regarding the harassment by accused persons. Sandeep used to meet
him socially in normal way. It is correct that Sandeep never gave beating
to Shefali at the instance of Raju in his presence. In view of his statement
he has alleged that one Raju has demanded more dowry and even that he
demanded skoda car at the time when Shefali gave birth to first child. He
has not levelled allegations against any of the accused persons facing
trial before this court. Raju has already been discharged by the court
vide order dated 22.02.08. Considering the cross examination conducted
by the Ld. APP for the State, nothing incriminating could come out
against the accused persons. In cross examination he has admitted that
accused Sandeep never gave beating to Shefali at the instance of Raju in
his presence.
31. PW5 Sahil Bhatia is the brother of deceased Shefali and he
has stated that the marriage of his sister was solemnized on 6.3.06 with
Sandeep Chopra and they present one accent car in the marriage. His
mother used to tell him about the harassment of his sister Shefali by her
in laws. As and when he used to visit the in laws house of Shefali, after
seeing her face he understand her problem but he did not involve in any
affair to avoid future relations. Thereafter he has stated about receiving
of information regarding death of his sister by hanging herself with
fan.During life time his sister was not happy in her in laws house. He has
been declared hostile by the prosecution and cross examined by the Ld.
State Vs.Sandeep Chopra  etc.
FIR no.39/07                                                                                  Page No. 14 of 36APP for the State wherein he has stated that police did not record his
statement Ex.PW5/A. He has been confronted with his statement by the
Ld. APP for the State but he denied having made such statement to the
police. However, he admitted that on 10.2.07 he identified the dead
body of his sister in mortuary of AIIMS Hospital and he received the
dead body. In view of his statement he has stated that his mother used to
tell him about the harassment of his sister. He has deposed on hearsay
because it was told to him by his mother and not by his sister Shefali.
Secondly, he has not stated as to how the accused person caused
harassment to Shefali and what they used to utter and what they used to
demand. By conducting cross examination by the Ld. APP for the State,
nothing incriminating could come against the accused persons. PW5 has
not made any allegation that accused persons has ever demanded more
dowry or skoda car from his father. He has also not stated that Shefali
has ever told him about the harassment caused to her by her husband as
well as in-laws. 
32. PW1 Kuldeep Bhatia is the father of deceased Shefali and he
has staetd that he gave hyundai Accent car in dowry. As soon as his
daughter reached her matrimonial house her mother in law took all
jewellery from her and told that she will return as and when she would
require. After days Raju friend of Sandeep told his daughter that they
had to purchase one plot for Sandeep and they asked for Rs.5.00 lac. He
was shocked to know this fact. He was surprised that when he has spent
State Vs.Sandeep Chopra  etc.
FIR no.39/07                                                                                  Page No. 15 of 36so much money on marriage why they are asking for more money. He
told that he is unable to pay Rs.5.00 lac. His daughter was not allowed to
talk on phone and when his daughter prayed them to talk she was told
'bill kya tera baap bharega'. Seeing this, in August 2006 he gave her one
mobile phone. He has further stated that his daughter was not provided
proper food and accused her that from the day she had come, their
business had collapsed. When they received instruction from the side of
Sandeep “Raju mere bhai se bharkar hai aur jo cheez tum mujhey doge
tum Raju ko bhi doge'. Sandeep used to return back home at 11 p.m in
drunken condition. They pressurized for Rs.5.00 lac. In June 2006 he
gave Rs.2.00 lac to Sandeep Chopra in the presence of Raju and parents
of Sandeep Chopra and requested them with folded hand that he cannot
afford more money. Sandeep, Raju and his family members never liked
the food cooked by his daughter and they used to tell 'teri maa ne tujhe
kya sikhya'. In the presence of all the family members and Sandeep, Raju
slapped his daughter uttering the words 'tere ko khana banana nahi aata'.
In the same night Sandeep and Raju returned home after taking drinks
and went in the bedroom where his daughter was sleeping and Raju
started molesting his daughter. He has further stated that Shefali got
pregnant and during pregnancy she was beaten mercilessly. They used to
tell her that after birth of child everything will be settled down. On
18.1.07 Shefali gave birth to a son and at that time Sandeep asked him to
give him Skoda Car. He told the parents of Sandeep about this and they
told 'theek hai jo yeh kah raha hai puri kar do'. He was shocked to know
State Vs.Sandeep Chopra  etc.
FIR no.39/07                                                                                  Page No. 16 of 36that Sandeep has handed over the car Accent to Anjali Lekhi. He has
further stated that on 8.2.07 Sandeep, Raju and parents of Sandeep came
to their house and demanded Skoda Car and used filthy language. After
requesting them, they went back and thereafter Shefali made a call and
told 'mai bahut pareshan ho rahi hoo apki inse kya baat hui'. On 9.2.07
Sandeep, Raju and parents of Sandeep again came to their house and told
'hamari yeh demand puri kartey ho to theek hai nahin to apni ladki se
haath dho baithogey'. They told them 'agar aap police me galti se bhi
chaley gaye hum apko fasa denge kyunki hamari bahut unchi pahunch
hai'. On 9.2.07 at 1 p.m Shefali had a talk with her mother on telephone
and she told her mother -'Mami dil bahut ghabra raha hai samajh mai
nahi aa raha'. On the same day at about 9.15 p.m his wife received call
from Sandeep that Shefali had hanged herself. He alongwith his wife
reached at the house of Shefali and saw the body of Shefali hanging with
ceiling fan. Her feet were touching the ground. There was no stool near
the dead body one which she might have climbed. He was shocked that a
girl who was married only 11 months back having 22 days child would
never commit suicide. His daughter had not committed suicide as she
had 22 days son, in fact she had been killed by the accused persons.
SDM recorded his statement which is Ex.PW1/A. He identified the dead
body his daughter and received the same. He handed over the list of
dowry articles to police which is Ex.PW1/D, photographs Ex.PW1/E and
F and photocopy of marriage card Ex.PW1/G. He has further stated that
Sandeep Chopra, entire family and Raju are responsible for the incident
State Vs.Sandeep Chopra  etc.
FIR no.39/07                                                                                  Page No. 17 of 36with his daughter. In view of the above statement of PW1 he has made
certain allegations against the accused persons. So, first I have perused
the cross examined of this witness conducted by the Ld. defence counsel.
He has stated in cross examination that it is correct that he has not stated
in his statement Ex.PW1/A that the parents of Sandeep had asked that
the marriage should be performed as per their status and accordingly he
raised his budget by taking loan and financial assistance from his
relatives and friends. It is correct that he had gifted Accent Car in the
marriage with his own free will. So,the accent car has been given by
PW1 to accused Sandeep with his own free will in the dowry and it
cannot be terms as demand for dowry. He has further stated that it is
correct that he had not stated to the SDM that parents of Sandeep and his
friend told his daughter that they had to purchase one plot for Sandeep
and they asked for Rs.5.00 lac of that this fact was told by his daughter
to his wife. It is correct that his daughter did not told him directly for
demand of Rs.5.00 lacs. He admitted that no accused present in the court
made any demand of any nature directly from him at any time after the
marriage of his daughter Shefali. PW1 is the father of deceased Shefali
but he has clearly stated in his cross examination that no demand of any
nature has been made from him at any time after the marriage of his
daughter Shefali by the accused persons. Since he has admitted about no
demand by the accused persons, allegation made by him in the
examination in chief seems to be doubtful because he has not made
consistent statement in this respect. It seems that no demand for Rs.5.00
State Vs.Sandeep Chopra  etc.
FIR no.39/07                                                                                  Page No. 18 of 36lacs has been made by the accused persons. Further, PW1 has admitted
in cross examination that he has not stated to Magistrate that their
daughter was not allowed to use telephone and on request of his daughter
that she be allowed to use phone and she was told 'bill kya tera baap
bharega' on which he gave her a mobile phone. He admitted that he did
not stated to the Magistrate that she was not provided food and used to
be harassed for preparing food and that accused used to curse her that
from the day she has come, their business has collapsed.He admitted that
when he used to meet Sandeep and other accused, they used to meet
normally and in cordial manner as relative meets and respect each other.
He admitted that he has not stated that he was pressurized for Rs.5.00 lac
and Rs.2.00 lac was given by him to the mother of Sandeep in the
presence of Raju. He admitted that he did not state to the SDM in
statement Ex.PW1/A that family members of Sandeep never liked food
cooked by his daughter or that Sandeep slapped his daughter by saying
tere ko khana banana hain aata or that Sandeep and Raju returned home
after drink and Raju attempted to molest her daughter. He has not stated
to the SDM that Shefali was pregnant and she was mercilessly beaten.
Sandeep had not demanded Skoda car from him. IN examination in chief
he has alleged that skoda car was demanded from him but in cross
examination he has stated that it was not demanded from him by accused
Sandeep. However, he has stated that it was demanded by Raju (already
discharged). He further stated that it is correct that he has not stated in
his statement to Magistrate that he told the parents of Sandeep that Raju
State Vs.Sandeep Chopra  etc.
FIR no.39/07                                                                                  Page No. 19 of 36was demanding a skoda car and that they told 'theek hai jo yeh keh raha
hai puri kar do'. He has further stated that he has not stated to the SDM
that the car which was given by him has been given to Anjali Lekhi by
Sandeep. He had not stated in his statement that on 8.2.07 Sandeep and
his parents came to their house and demanded Skoda car and used filthy
language and thereafter Shefali called them and said 'mai bahut pareshan
ho rahi hu inse kaya baat hui'. He has further stated that he has not stated
in his statement that on 9.2.07 Sandeep and his parents again came to
their house and claimed that their demand may be fulfilled. He has not
stated that on 9.2.07 at 1 p.m Shefali had a talk with her mother on
telephone and she said 'mummy dil bahut ghabra raha hai samaj mai
nahin aa raha'. He has not stated that when he saw his daughter hanging
her feet were touching the ground and there was not stool nearby. He
made the statement Ex.PW1/A to the SDM in a very perplexed situation
as some of the relatives got it dictated and he just signed. He has further
stated that it is correct that Sandeep has a habit of consuming liquor and
beyond that they have no grievance against him or the accused present in
the court. From the deposition of PW1 who is father of deceased it is
revealed that he has made allegations against the accused persons in his
examination in chief but when he was put through cross examination his
testimony has been completely shattered by the Ld. defence counsel. He
has not been re-examined by the Ld. APP for the State when he denied
the allegations in cross examination. On perusal of his cross examination
it is revealed that the accent car has been given by him on his own free
State Vs.Sandeep Chopra  etc.
FIR no.39/07                                                                                  Page No. 20 of 36will. She has further stated that accused persons have made no demand
from him. So, his version that Rs.5.00 lacs and Skoda Car were demand
cannot be believed.
33. PW2 Anita Bhatia is the mother of the deceased and
complainant in this case. She has also stated in her examination in chief
that they had given hyundai accent car in dowry. She has stated that
after 3-4 days of marriage of his daughter , accused Sandeep told her
daughter that he has to purchase a plot for which he told her daughter to
demand Rs.5.00 lac from them. It was told to her in April 2006. He told
Sandeep that they cannot afford Rs.5.00 lac. They brought it to the notice
of parents of Sandeep who told that whatsoever Sandeep demanding,
they will have to give him. Thereafter they started harassing their
daughter. Her mother in law told to her daughter 'tumhari maa nai ghar
ka kaam nahi sikhya hai' and both bhabies and Sandeep used to take
entire household work from Shefali and used to torture her. Her daughter
used to weep bitterly whenever she called her up. Considering her
grievance they gave Rs.2.00 lacs on 28.6.06. On 10th
August Sandeep
took Rs.11,000/- from them. They were not allowed to meet their
daughter in the hospital and they were asked to bring Skoda car. Anjali
instigated Sandeep and told to give car and she took the car which was
given by them in the marriage. On 8.2.07 Sandeep Raju and parents of
Raju came to their house and demanded skoda car. They requested them
that they cannot give the same but their request was not accpeted. They
State Vs.Sandeep Chopra  etc.
FIR no.39/07                                                                                  Page No. 21 of 36tortured Shefali after reaching house. On 9.2.07 Sandeep, Raju and
parents of Sandeep came to their house and told that if she want to meet
her daughter and want to see her happy she should give skoda car. At
about 1 p.m she received call from her daughter and she was weeping
bitterly and told that Sandeep had not given anything to eat. At about
9.15 p.m Sandeep telephoned her that Shefali has committed suicide.
They had gone there and saw Shefali hanging from ceiling fan. He
further stated that no mother can commit suicide leaving her 20 days
child. Like PW1 father of deceased Shefali, PW2 Anita Bhatia has also
levelled allegation for demand of Rs.5.00 lac and Skoda car from the
accused persons. So, I have also perused her cross examination
conducted on behalf of the accused persons. She has stated in cross
examination that she has not stated in her statement that on the demand
of accused persons they have given accent car. She has not stated in her
statement Ex.PW2/A that Sandeep told her daughter to demand Rs.5.00
lacs for purchasing the plot. She has admitted that she has not stated in
her statement that she has stated that her mother in law told her daughter
'tumhari maa ne ghar ka kaam nahi sikhaya'. He further stated that it is
correct that she has not stated in her statement Ex.PW2/A that whenever
she called her daughter she wept bitterly and considering her grievances,
Rs.2.00 lac was given to Sandeep in the presence of his mother on
28.6.06. She has not stated that Rs.11,000/- was taken by Sandeep for
purchase of mobile. She has also admitted that she has not stated in her
statement that Raju and Sandeep met them at the gate of the hospital and
State Vs.Sandeep Chopra  etc.
FIR no.39/07                                                                                  Page No. 22 of 36did not allow to meet Shefali after birth of male child and asked them to
bring skoda car first. She has not stated in her statement that Sandeep's
sister Anjali instigated Sandeep and told to give her car and she took the
car which was given in marriage. It is correct that she had not stated in
her statement Ex.PW2/A that on 8.2.07 at 6 p.m Sandeep, Raju and
parents of Sandeep came to his house and demanded skoda car and
abused despite their request with folded hands but they did not accept
their request and left their house or that they tortured Shefali after
reaching the house and she wept bitterly on phone. She has not stated in
her statement that she saw her daughter hanging with thin chuni and her
feet were touching the ground. It is correct that she had not stated in her
statement Ex.PW2/A that she beg to submit that no mother can commit
suicide leaving her 20 days old child. She has further stated that it is
correct that Sandeep had never demanded any money or dowry directly
from her or in her presence. Sometime mother of Sandeep used to taunt
Shefali in her presence regarding lack of dowry. It is correct that she has
not stated in her statement that her daughter Shefali was engaged with
Sandeep on 10.2.06. It is correct that she has not stated in her statement
Ex.PW2/A that her son in law used to fight with his brother because of
Raju. She has not stated that the family members of Sandeep gave a list
of articles that were to be given by her if she want to see her daughter
safe and happy. She has not stated in her statement that Sandeep used to
drink everyday and come back at home at 11 p.m and after coming home
he used to abuse and beat with legs during pregnancy. She denied that
State Vs.Sandeep Chopra  etc.
FIR no.39/07                                                                                  Page No. 23 of 36she was told by Shefali that Sandeep is in the habit of consuming liquor
vol. but in her presence he never took liquor. It is correct that Shefali
was a very sensitive girl. She admitted that all the accused persons have
never harassed Shefali in her presence nor demanded any money or
dowry. She admitted that Shefali has never complaint to her about any
harassment. She admitted that sister of Shefali has not taken Accent Car
in her presence. She admitted that accused persons have never demanded
any skoda car at the time of chuchak vol. it was demanded by Raju. PW2
Smt. Anita Bhatia has been re-examined by the Ld. APP for the state
wherein she has stated that she has stated the same whatever she was told
by the police on 25.8.08. In view of the statement of PW2 mother of
deceased and complainant she has also made allegation in her
examination in chief but in cross examination her testimony has been
shattered by the Ld. defence counsel. Considering her cross examination
the allegations made by her in examination in chief cannot be believed.
34. In view of the above discussions I would like to mention
here some case laws for the just decision of this case. In case law Sunil
Bajaj Vs. State of MP, 2001 (2) JCC (SC) 262 it is stated in head note:-
'Section 304B- It is pleaded that last letter of deceased did
not mention any allegation of dowry demand – The letter
of deceased does not speak of any demand of dowry and
there is totally absence of demand of dowry and so
sec.498A of IPC is not at all attracted – Thus the
necessary ingredients of the offence of sec.304B of IPC is
absence and so the conviction and sentence of the
appellant cannot sustain and so the appellant is acquitted
State Vs.Sandeep Chopra  etc.
FIR no.39/07                                                                                  Page No. 24 of 36of the conviction us/ 304B IPC. It is further stated that :
Both the courts below concurrently committed the
appellant – But out of so many witnesses of the neighbour
none could say that there was a dowry death and the
deceased was soon before her death was subjected to
demand of dowry which was necessary ingredient of the
offence u/s 498A of IPC committed by the husband or by
any of the family members or near relatives'.
In case law Baljeet Singh & Anr Vs. State of Haryana, 2004(1) JCC
627 it is stated in headnote that :
'Evidence Act. 1872 – Sec.113B- Presumption- Dowry
death – Against accused persons to be drawn provided
the prosecution establishes that soon before her death if
the woman was subjected to cruelty or harassment
within 7 years of marriage'.
'Dowry death – Onus of proof- Preliminary facts – Proof
of – Onus lies upon the prosecution – High Court
erroneously shifted the burden upon the accused – About
the date of marriage – Prosecution is required to prove
that death occurred within 7 days of marriage – PW4
father of the deceased was not creditworthy – So were
other related PW5 – Prosecution failed to discharge its
initial onus of proof – PW5/ the mother stated that the
deceased was depressed – This indicated that woman
committed suicide in a state of depression – Hence
conviction is set aside and appeal is allowed'.
In case Law Raman Kumar Vs. State of Punjab, 2009(3) JCC 1840 it
is stated in head note that :
'Sec. 304B – Evidence Act, 1872 – Sec. 113B – Dowry
Death – No incidence of demand of dowry or cruelty or
harassment 'soon before death' – Letter relied on shows
State Vs.Sandeep Chopra  etc.
FIR no.39/07                                                                                  Page No. 25 of 36demand of articles by her parents by her own and not on
the behalf of appellant – Improvements in the statements
of prosecution witnesses – Prosecution squarely failed to
establish accusations against appellant – Appeal allowed
– Conviction set aside'.
In case law Harjit Singh Vs. State of Punjab, (2006) 1 SCC 463 it is
stated in head note that :
'Sec. 304B – Dowry death – soon before the death,
deceased was subjected to cruelty or harassment by her
husband for or in connection with demand of dowry –
Once this is established, a legal fiction is created under
section 304B IPC whereby such death would be called
dowry death – On facts held, ingredients of Sec.304B
IPC r/ sec. 113 B Evidnce Act not satisfied'.
In case law Appasaheb & Anr Vs. State of Maharashtra, 2008(1)
Crimes 110(SC) it is stated in head note that :
'Sec.304B – Dowry death- appellant convict under –
Deceased died as a result of insecticide poisoning –
Evidence of mother and father of deceased that when
deceased visited her parents she used to narrate all
treatment and beating for bringing money from her
parents – Conviction by Trial court and upheld in appeal
by High Court – Appeal – Both witnesses deposed that
deceased was receiving ill treatment as a result of
“domestic cause” as regards domestic cause they
explained that there was a demand for money to meet
expenses for mature and other domestic expenses –
Evidence did not show that any demand for dowry was
made – Essential ingredient of dowry death i.e. demand
for dowry was not established – Conviction could not be
sustained.
One Important point has been stated that :
State Vs.Sandeep Chopra  etc.
FIR no.39/07                                                                                  Page No. 26 of 36'A demand for money on account of some financial
stringency or for meeting some urgent domestic
expenses cannot be termed as demand for dowry and
conviction for dowry death on such demand could not be
sustained'.
In case law Bhaskar Ramappa Madar & ors. Vs. State of Karnataka,
2009 (3) JCC 1622  it is stated in head note that :
'Sec.498A- Demand of dowry – The facts that husband
of deceased owned a truck which need heavy repairs –
The amount given for the purpose does not amount to
demand of dowry'.
In case law Tarsen Singh Vs. State of Punjab, 2009 (1) JCC 372 it is
stated in head note that:-
'One of the essential ingredients amongst others, is that
the woman must have been 'soon before her death'
subjected to cruelty or harassment for, or in connection
with the demand for dowry – Nothing on record to show
that any demand of dowry was made soon before her
death- The cause of action appears to be an ego problem
on the part of the appellant, namely the deceased had not
been coming to her matrimonial home – Conviction u/s
304B not proved'.
'Cruelty or harassment – When the name of the
appellant/husband and his parents were material in the
FIR – It is clear that all of them had been ill treating
deceased for non bringing of sufficient dowry and not
bearing a child- Not correct to contend that FIR does not
contain any statement of cruelty or harassment of the
deceased especially when death occurred within 7 years
of marriage and dead body was found in matrimonial
home'.
State Vs.Sandeep Chopra  etc.
FIR no.39/07                                                                                  Page No. 27 of 36It is stated in case Arvind Singh Vs. State of Bihar, 2001(1) JCC (SC
341 that:-
'Sec.302, 304B and 498A – deceased wife died of burn
injuries – No independent and reliable witness –
prosecution case based on evidence of interest witnesses
and members of the family of deceased and also on the
basis of dying declaration made to the mother of
deceased. Deceased remained at the house and could not
be admitted to hospital – parents of deceased informed –
Oral dying declaration made at home and not in presence
of any doctor or any other independent witness – Courts
below acquitting other family members of the
appellant/husband – Dying declaration not tained on
basis of such dying declaration – No clearcut evidence of
dowry demand on record- no doctor's evidence – Benefit
of doubt extended to appellant'.
It is stated in case Sabar Bhatti & Ors. Vs. State, 2009(v) AD (Cr)
(DHC) 209 that :-
'Improvements of material nature in depositions of
parents of M – No Particulars of dates when dowry
demands made and amounts paid, given – Conviction of
Z, Mother in law, and S u/s 498A, set aside'.
In case law Jai Ram Vs. State of Rajasthan, 1995(1) Crimes 611 it is
stated in head note:
'Sec.304B & 498A – Deceased, Wife of appellant, was
married to appellant two and half year prior to incident –
cause of death as per post mortem was asphyxia due to
organo phosphorus poisoning – Evidence of father of
deceased that deceased used to complain that her in laws
maltreated and harassed her and taunted for insufficient
dowry – Significant omission in FIR and statement
before police regarding demand of motor cycle by
State Vs.Sandeep Chopra  etc.
FIR no.39/07                                                                                  Page No. 28 of 36appellant – Evidence regarding cruelty and maltreatment,
quite vague, inconsistent and untrustworthy –
Independent two witnesses, neighbours not produced –
Co-accused acquitted by trial court on same evidence –
Conviction of appellant is unsustainable'.
In case Law Kalyan & Ors. Vs. State of UP, 2001(2) JCC (SC) 203 it
is stated in head note that :
'Appreciation of evidence -Incident stated in FIR, being
the first version of the occurrence has to be given due
weightage – The case of the prosecution, as sought to be
proved at the trial, appears to be different than the one as
narrated in the FIR – view taken by trial court in
acquitting the appellants herein is justified'.
'Prosecution setting out a new case in evidence, which is
in contradiction to the version stated in FIR – Witnesses
are partisan witnesses and also inimical towards one
accused – Conflict in oral evidence as against medical
evidence-Was High Court right in disturbing the order of
acquittal – Held (NO)'.
In case law Babita Vs. State, 2009(2) JCC 1247 it is stated in head note
that :
'Sec.304B and 498A- no specific demand have been
made except the demand of Rs.1,50,000/- which
according to the father of deceased was made at the time
of marriage – Cannot make out a case of harassment soon
before the death – No dying declaration of deceased was
recorded – Not a single instance of harassment by
petitioner who is sister in law of deceased soon before
her death – No basis to frame charge against petition'.
State Vs.Sandeep Chopra  etc.
FIR no.39/07                                                                                  Page No. 29 of 3635. Ld. APP for the state has relied up case law titled Alamgir
Vs. State of Assam, 2003(3) SRJ 461 it is stated in head note that :
'IPC 1860 Sec 304B -Indian Evidence Act 1872 –
Sec.113B- Dowry Death- Injuries not self inflicted –
Deceased was with appellant in the bedroom –
Deceased wife was in bathroom for a long time and
appellant showed no anxiety – Some witnesses are
independent witnesses and some are the friends of both
family – Held – No reason to disbelieve the witnesses –
Death having taken place within 7 years of marriage –
Sufficient evidence of demand of dowry – Presumption
u/s 113B of Evidence Act get invoked'.  
Ld. APP for the State has also relied upon case law Pawan
Kumar & ors. Vs. State of Haryana, 1998(2) CC Cases 12 (SC).
36. In view of the testimonies of PW1,2,4 & 5,it is revealed that
PW4 Rajan Bhatia and PW5 Sahil Bhatia who are maternal uncle and
brother of deceased Shefali have not made any allegation against any of
the accused persons. PW5 has also been declared hostile by the
prosecution and cross examined by the Ld. APP for the State but in vain.
PW1 Kuldeep Bhatia, father of deceased and PW2 Anita Bhatia, mother
of deceased and complainant in this case, both have made main
allegations that accused persons have demanded Rs.5.00 lacs and Skoda
car and they also harassed & tortured Shefali by uttering different
words. But in cross examination both PW1 and PW2 have admitted that
they have not stated about these allegation to the Magistrate in their
statements Ex.PW1/A and Ex.PW2/A. All the above PWS have made
State Vs.Sandeep Chopra  etc.
FIR no.39/07                                                                                  Page No. 30 of 36inconsistent statements in this case. So, their versions cannot be
believed. It is held by our own Hon'ble High Court in case Raj Kumar
Vs. State 1997(2) CC Cases HC 291 that:-
'Where the PW has been absolutely inconsistent and has
been changing his stand from time to time, he cannot
be regarded as reliable and trust-worthy witness of the
occurrence'
It is also held by Apex Court in the case of Suraj Mal Vs. Delhi Admn.
1997 Criminal Law Journal 108(SC) CC Cases that :-
'When the prosecution witness gives two different
statements in their testimonies either at one or two suggest,
therefore the testimony become unreliable and unworthy of
credit and in the absence of any circumstances no
conviction could be made therein'.
37. Considering the above discussion, to prove the case u/s 304B
IPC three ingredients have to be proved (i) unnatural death (ii) within 7
years of marriage and (iii) soon before death she was subjected to cruelty
or harassment by her husband or relative of her husband (iv) such cruelty
must be in connection with demand of dowry (v) such cruelty is shown
to have been meted to the woman soon before her death. In this case the
death of Shefali was unnatural death and it was within 7 years of
marriage. Now it is necessary to find out as to whether the deceased was
being harassed soon before her death by subjecting her to cruelty and
demand of dowry. In this case only PW1&2 Kuldeep Bhatia and Anita
State Vs.Sandeep Chopra  etc.
FIR no.39/07                                                                                  Page No. 31 of 36Bhatia who are father and mother of deceased have stated that deceased
Shefali made call to them on 9.2.07 i.e. the alleged day of incident and
she was weeping bitterly and stated that family members of Sandeep had
not given anything to eat and thereafter the phone was disconnected. It
has not been stated by them as to what the accused persons were saying
at that time. Allegedly the call for hanging of Shefali was made at 9.15
p.m by Sandeep on 9.2.07. But in cross examination PW2 mother of the
deceased has stated that she has not stated in her statement Ex.PW2/A
that at about 1 p.m she received call from deceased Shefali and at that
time she was weeping bitterly and told her that family members of
Sandeep had not given her food to eat and thereafter the phone was
disconnected. PW1 Kuldeep Bhatia who is the father of deceased has
also stated the version of PW2 in this respect. Further both the witnesses
in cross examination have stated that accused persons had never
demanded any money or dowry directly from them. It has been stated
that sometime Sandeep used to taunt Shefali. But they have not stated as
to how the accused persons have caused taunt to Shefali. Even PW2 who
is complainant in this case has admitted that Shefali has never complaint
to her about any harassment meted to her by the accused persons. So, in
my view there is no evidence available on file in this case that deceased
Shefali was subjected to cruelty or harassment on account of demand of
dowry soon before her death. Hence, ingredients of Sec.304B IPC are
not complete in this case.
State Vs.Sandeep Chopra  etc.
FIR no.39/07                                                                                  Page No. 32 of 3638. In this case at the first blush I found that there was force in
the testimonies of PW1 & 2 (father and mother of deceased) but on
perusal of their cross examinations, I am astonished to see their changed
version. Both these witnesses have deposed entirely different in their
cross examination than from their examination in chief. So, I am of the
view that their contentions deposed in examination in chief are not
reliable.
39. I have also perused the testimony of other witnesses. PW3
Dr. Akhilesh has been examined by the prosecution to prove the post
mortem report which is Ex.PW3/A. This report has been prepared by Dr.
Raghvender Kumar and Dr. MG Jai. The cause of death has been opined
as asphyxia due to anti mortem hanging by ligature. The doctor who
prepared the Post Mortem Report has not been produced by the
prosecution. PW3 has only identified the hand writing of doctors who
prepared the post mortem report. PW8 HC Surjeet is the formal witness
who recorded the information in form Ex.PW8/A regarding hanging of a
lady. PW9 HC Giriraj is the photographer who clicked photographs
Ex.PW9/A6 to A10 at the spot and PW11 SI Naveen from Crime team
has inspected the spot and gave report which is Ex.PW11/A. PW10 HC
Rajeev has recorded the FIR of this case copy of which is ex.PW10/A
and PW12 Ct. Tejpal delivered the copies of FIR to Sr. Police officials.
PW15 SI Mahesh has prepared the scaled site plan which is
Ex.PW15/A and he is also a formal witness. PW14 Sh RK Saini, SDM
State Vs.Sandeep Chopra  etc.
FIR no.39/07                                                                                  Page No. 33 of 36visited the spot and recorded the statements of parents of deceased and
conducted inquest proceedings. In cross examination he has stated that
he does not recollect which police official recorded the statement of
Anita Bhatia and Kuldeep Bhatia vol. same was recorded by the police
officer on his direction. Both the statements are in different hand
writings. From this version of PW14 it seems that he has not recorded
the statement of Anil Bhatia (complainant) and Kuldeep Bhatia, parents
of deceased at the spot with his own handwriting and it was recorded by
some police officer there. He could not tell the name of the police
officers who recorded the statements of both Anita Bhatia and Kuldeep
Bhatia. As per version of PW14 the statements Ex.PW1/A and
Ex.PW2/A were recorded on his direction. It seems that he was not
aware as to what was recorded in the statements because he has not
stated that he was recorded under his dictation. So, it create doubt in the
case of the prosecution. PW16 Insp. Jogender Kumar is the second IO
and he arrested accused Raju (since discharged) and Nitu (set free). He
seized the list of articles, photographs and marriage card and also seized
the car. PW6 Ct. Azad, PW7 Ct. Gopal Prasad and PW13 SI Tika Ram
reached at the spot together and found a lady Shefali hanging from the
ceiling fan. PW7 has been sent to mortuary with the dead body and
PW13 got recorded the case through PW6 Ct. Azad. But PW6 Ct. Azad,
in cross examination has stated that he did not take rukka to PS. PW13
has seized the articles lying at the spot and arrested the accused persons.
Both PW6 and PW13 have deposed about the investigation carried out
State Vs.Sandeep Chopra  etc.
FIR no.39/07                                                                                  Page No. 34 of 36by PW13 at the spot. It is well settled principle of law that result of
investigation can never be a legal evidence. 
40. In view of the above overall analysis of the testimonies of the
witnesses and in brief the allegations levelled by complainant Anita
Bhatia (PW2) and PW1 Kuldeep Bhatia cannot be believed considering
the deposition made by them in cross examination because both the
witnesses have stated that the accused persons have not made any
demand of dowry from them. They have not levelled any allegation for
demand of any household items. PW2 has also stated that she did not
state to the Magistrate that Shefali called her up on 9.2.07 at 1 p.m and
at that time she was weeping bitterly and told her that family members of
Sandeep had not given her food to eat and thereafter the phone was
disconnected. She has not stated as to what they were uttering to her at
that time. There is no evidence for demand of dowry or harassment
considering the cross examination of both the witness during the period
6.3.06 to 9.2.07. So, in this case soon before death is also absent and
there is no allegation for soon before death of harassing for demand of
dowry of deceased Shefali. Even there is no evidence on file about
beatings given by the accused persons to deceased Shefali. So, I am of
the opinion that Shefali was not maltreated soon before death or even at
any time after marriage by the accused persons. 
41. In view of my above discussions and considering the case
State Vs.Sandeep Chopra  etc.
FIR no.39/07                                                                                  Page No. 35 of 36laws discussed above, this case does not fall under the category of
section 304B IPC and no presumption can be taken against the accused
persons u/s 113B of Indian Evidence Act. The prosecution has failed to
bring home the guilt of the accused  u/s 498A/304B/34 IPC.
42. In over all analysis of the testimonies of the witnesses this
case does not fall under the category of 304B IPC and I also did not find
any evidence against the accused persons u/s 498A IPC keeping in view
the facts and circumstances of the case and cross examination of
PW1&2. So, I am of the considered view that the prosecution has failed
to prove its case against the accused persons. In such circumstances, the
accused persons are entitled to be given the benefit of doubt. I therefore
give the benefit of doubt to accused Sandeep Chopra, Chaman Lal,
Vipin Chopra,Sanjay Chopra, Sonika Chopra and Ekta Chopra and I
therefore, hereby acquit all these accused persons from the charges
levelled against them u/s 304B/498A/406/34 IPC. All the accused
persons are on bail. Their bail bonds are cancelled and sureties are
discharged. File be consigned to record room.
Announced in the open Court
on 31.08.2010.
(SURESH CHAND RAJAN)
ADDL.SESSIONS JUDGE
      (Fast Track Court-New Delhi and South East District)
       NEW DELHI
State Vs.Sandeep Chopra  etc.
FIR no.39/07                                                                                  Page No. 36 of 36State Vs.Sandeep Chopra  etc.
FIR no.39/07                                                                                  Page No. 37 of 36

 

SOURCE - http://judis.nic.in/dist_judis/pdf_retrieval_main.asp

 

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Suggested reading

Delhi HC on mentality of wife’s parent in 304B 498a to rope in all members of husband’s  family and MISUSE of 304B @

http://legalmanthan498adowrymisuse.blogspot.com/2010/09/del-hc-misuse-of-304-b-dowry-death.html