Criminal Appeal No.702-DBA of 2006 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No.702-DBA of 2006
Date of Decision : January 19, 2009
Sanjay Lata @ Sanju ....Appellant
D/o Shyam Sunder Sharma,
R/o Chiranjeev Colony, Bhiwani.
Versus
1. Amrit Gautam S/o Ram Gopal ....Respondents
2. Ram Gopal S/o Suraj Bhan
3. Smt. Sumitra W/o Ram Gopal
4. Sushma D/o Ram Gopal
5. Shyam Lal S/o Manohar Lal
6. Renu W/o Gobind
7. State of Haryana
CORAM:HON'BLE MR. JUSTICE K.S.GAREWAL
HON'BLE MR. JUSTICE SHAM SUNDER
1. Whether Reporters of Local Newspapers may be allowed
to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. Sanjay Vashisth, Advocate,
for the appellant.
Mr. Rakesh Nehra, Advocate,
for respondent Nos.1 to 6.
Mr. Naveen Malik, Addl. Advocate General, Haryana,
for respondent No.7.
SHAM SUNDER, J.
This appeal is directed against the judgment dated 2.9.2006,
rendered by the Court of Addl. Sessions Judge (I), Bhiwani, vide which it
acquitted the accused/respondent Nos.1 to 6, in a criminal complaint
Criminal Appeal No.702-DBA of 2006 2
under Sections 302, 498-A, 406 and 120-B IPC, P.S. City Bhiwani.
2. The facts of the case, as summarized, proceeded in the manner
that Sanjay Lata was married to Amrit Gautam, accused, on 27.4.1996.
She had studied upto M.A. B.Ed. level. Her parents had spent a sum of
Rs.3 lacs on her marriage. The accused (now respondents) and their
relatives were not satisfied with the dowry brought by the complainant.
She was taunted time and again, in connection with the demand of fridge,
scooter, and a sum of Rs.5000/- in cash, besides gold necklace and saries
etc. When she expressed her inability to fulfill the demands, she was
assaulted. She was even starved and illegally confined in a room, during
summer season. Not only this, she was even bolted inside a bath-room, in
December, 1996. On yet another occasion, she was deprived of use of a
quilt, with a view to accelerate her death, by exposure to cold. The father
of the complainant, in the month of February, 1997, gave a scooter,
Rs.5000/- in cash, saries and suits to the accused. After the receipt of
these articles, the accused remained inactive for sometime, but shortly
thereafter, started abusing her again, in connection with the demand of
dowry. On 4.9.1997, at the time of her first delivery, she was got
admitted in Ganpat Rai Matri Seva Sadan Hospital, Bhiwani, where she
gave birth to a male child on 5.9.1997. Despite the fact that the child
weighed only 2.6 grams, and she was also weak, the accused forcibly got
her discharged, from the said hospital on 7.9.1997. They did not permit
her parents to see the new born child, either in the hospital, or at her
matrimonial home. It was further stated that, on the said date Shyam Lal,
accused, uncle of Amrit Gautam, accused, brought some liquid in a spoon
and administered the same, to the new born child, by taking up in his lap.
Criminal Appeal No.702-DBA of 2006 3
Thereafter, the child remained motionless. Shortly, thereafter, when she
attempted to breast feed the child, she discovered that he had expired. It
was further stated by the complainant, that upon raising cries of alarm,
she was threatened by the accused, not to raise an issue. It was further
stated that, despite the complainant having decided to go for the post-
mortem examination of the child, all the accused buried the dead-body,
and did not inform her parents of this development. It was further stated
that a few days later, Sushma, accused, sister of Amrit Gautam, and her
husband, had deliberately left the gas open, and asked the complainant to
prepare tea for her. When the complainant entered the kitchen, she
noticed obnoxious smell, emanating from the same. When she attempted
to come out of the kitchen, the accused tried to bolt her inside the same,
but she was able to come out of the same. Thus, she succeeded in
avoiding being burnt alive, as planned by the accused. It was further
stated that subsequent thereto, she again became pregnant. At that time,
she was very weak. Taking advantage of such situation, the accused
obtained her signatures on documents for seeking divorce. When she
refused to append her signatures, on those documents, she was again
assaulted, and, ultimately, turned out of her matrimonial home. It was
further stated that since then, she had been residing with her parents, in
whose house, she had given birth to her second child, who is a girl. It
was further stated that the complainant was employed as Physical
Training Instructor, in S.D.High School, Bhiwani, and was a Judo Coach,
in Halwasia Vidya Vihar, but she had to leave her employment, at the
instance of the accused. She was, thus, rendered penniless. It was further
stated that when she complained against the atrocities, having been
Criminal Appeal No.702-DBA of 2006 4
committed by the accused, to the Police, no action was taken. Left with
no alternative, a criminal complaint, Ex.PB, was filed on 21.4.1999.
3. After recording the preliminary evidence, led by the
complainant, all the accused were summoned by the then Chief Judicial
Magistrate, Bhiwani, to stand trial for the offences, punishable under
Sections 302, 498-A, 406 and 120-B IPC.
4. On their appearance, in the Court of the Committing
Magistrate, the accused were supplied the copies of documents, relied
upon by the complainant. After the case was received by commitment,
charge for the offences, punishable under Sections 302, 120-B, 498-A
and 406 IPC, was framed against the accused, to which they pleaded not
guilty and claimed trial.
5. The prosecution, in support of its case, examined Sanjay Lata
(PW-1), who made a statement, in line with the allegations, contained in
the complaint, Shyam Sunder (PW-2), her father, Gyatri Devi (PW-3), her
mother, Subhash Chander (PW-4), her uncle, and Dr. Om Gulia (PW-5).
Thereafter, the complainant closed her evidence.
6. The statements of the accused under Section 313 Cr.P.C., were
recorded, and they were put all the incriminating circumstances,
appearing against them, in the prosecution evidence. They pleaded false
implication. They, however, tendered into evidence Ex.DK, Exs.DK/1 to
DK/3, Ex.DL and Ex.DM, in their defence. Thereafter, they closed their
defence evidence.
7. After hearing the Counsel for the parties, and, on going through
the evidence, on record, the trial Court, acquitted the accused, as stated
hereinbefore.
Criminal Appeal No.702-DBA of 2006 5
8. Feeling aggrieved, the instant appeal was filed by the
appellant/complainant.
9. We have heard the Counsel for the parties, and have gone
through the record of the case, carefully.
10. The Counsel for the appellant, submitted that the trial Court
was wrong in coming to the conclusion, that the complainant was not
tortured by the accused, from time to time, nor she was assaulted. He
further submitted that the trial Court was also wrong, in disbelieving the
cogent and convincing evidence, produced by the complainant, to bring
home the guilt to the accused. He further submitted that the trial Court
was even wrong, in coming to the conclusion, that the accused did not
commit the murder of the new born child of the complainant, in
conspiracy with each other. He further submitted that the trial Court was
also wrong, in placing reliance, on the written statement filed by the
complainant, in the divorce petition, instituted against her, by her
husband, as also the statements made by her, and her father therein, to
come to the conclusion, that she gave contradictory versions, in the
Court, in the criminal case, vis-a-vis her earlier statements. He further
submitted that, no doubt, delay occurred in filing the complaint, yet that
was only on account of the reason, that the complainant did not want to
disturb her matrimonial life, while residing in the house of her in-laws.
He further submitted that when the things went beyond all limits, and the
complainant was thrown out of her bridal house, left with not alternative,
she had to file a criminal complaint. He further submitted that the trial
Court was also wrong, in directing that Sanjay Lata, complainant, and her
father Shyam Sunder, should be tried by the competent Court, in a regular
Criminal Appeal No.702-DBA of 2006 6
trial, qua the commission of offence, punishable under Section 194 IPC,
for making false complaint, and fabricating false evidence, to seek
conviction of the accused, for a capital offence.
11. On the other hand, the Counsel for the accused/respondent
Nos.1 to 6, submitted that there was inordinate delay, in filing the
complaint, which clearly showed that the accused were falsely implicated.
He further submitted that the trial Court was right in coming to the
conclusion, that the complainant had miserably failed to prove through
cogent and convincing evidence, that she was ever assaulted, tortured, or
in any way maltreated, by the accused, at any point of time, after
marriage, in connection with the demand of dowry or otherwise. He
further submitted that even the new born child of the complainant died a
natural death, but she converted the same, into a homicidal death, just
with a view to seek the conviction of the accused, on false grounds. He
further submitted that the trial Court after appreciating the evidence of
the complainant, and her witnesses, in the instant trial, as also the
statements made by them, in the divorce petition, rightly came to the
conclusion, that she and her father had scant regard, for the law of land,
by filing a false complaint, for seeking conviction of the accused, for a
capital offence. He further submitted that the trial Court was also right in
coming to the conclusion, that the complainant and her father should face
regular trial, qua the commission of offence, punishable under Section
194 IPC.
12. The power of an Appellate Court, to review the evidence in
appeal against acquittal, is as extensive as its power in appeal against
conviction. The Appellate Court should, however, be slow in interfering
Criminal Appeal No.702-DBA of 2006 7
with the order of acquittal, if it comes to the conclusion that the view
taken by the trial Court, was possible, on the basis of the evidence
adduced by the prosecution. As stated above, the marriage of the
complainant with Amrit Gautam, accused, was performed on 27.4.1996.
A child was born to the complainant on 5.9.1997, and on 7.9.1997, he
died. According to the complainant, he was killed by administering him
something in the spoon by Shyam Lal, one of the accused. Earlier to that,
on many occasions, as per the allegations, she was physically assaulted,
tortured, starved, and even exposed to cold to accelerate her death, in
connection with the demand of dowry. Even, as per the allegations, the
murder of her child, was committed on 7.9.1997. She, however, kept
mum and quiet, for an extraordinary long time and did not report the
matter to the Police Authorities. Even, she did not file a criminal
complaint. There is a delay of about 01 year and 09 months, in filing the
criminal complaint. No explanation was furnished, by the complainant,
as to what prevented her, from filing the criminal complaint earlier, if she
was really aggrieved, against the alleged atrocities of accused. In the
absence of any explanation, for such a long delay, in filing the criminal
complaint, against the accused, it could be very well presumed that the
same was utilized to concoct a story, false implication of the accused, and
introduction of false witnesses. Such delay, in our opinion, must prove
fatal to the case of the prosecution. In Thulia Kali V. State of Tamil
Nadu ( 1972) 3 Supreme Court Cases 393, it was held that the
FIR/complaint in a criminal case is an extremely vital and valuable piece
of evidence, for the purpose of corroborating the oral evidence adduced at
the trial. The importance of the report, can hardly be over-estimated, from
Criminal Appeal No.702-DBA of 2006 8
the standpoint of the accused. The object of insisting upon prompt
lodging of the report, with the Police, in respect of commission of an
offence, is to obtain early information, regarding the circumstances, in
which the crime was committed, the names of the actual culprits, and the
part played by them, as well as the names of the eye-witnesses, present at
the scene of occurrence. Delay in lodging the first information report or
filing a criminal complaint quite often results in embellishment, which is
a creature of after-thought. On account of delay, the report not only gets
bereft of the advantage of spontaneity, danger creeps in of the
introduction of coloured version, exaggerated account of the prosecution
story, as a result of deliberation and consultation. It is, therefore, essential
that the delay in the lodging of the first information report, or filing a
criminal complaint, should be satisfactorily explained. In that case there
was a delay of more than 20 hours, in lodging the F.I.R.,though the Police
Station was only at a distance of two miles. Hence this circumstance was
taken, as the one, to raise considerable doubt, regarding the veracity of
the case, and it was held that it was not safe to base conviction on it. In
the instant case also, as stated above, the delay in filing the criminal
complaint, was not at all explained, by the witnesses of the complainant.
On account of this reason, the case of the complainant became highly
doubtful. The Court is, thus, put on guard to scrutinize the evidence of
the witnesses of the complainant, carefully and cautiously, to arrive at a
correct conclusion.
13. No doubt, the allegations of ill-treatment, physical assaults,
torture, starvation, and her exposure to cold, with a view to accelerate her
death, were levelled by the complainant, against the accused. Those
Criminal Appeal No.702-DBA of 2006 9
allegations were sought to be proved through the oral evidence,
produced, in the shape of the statements of the complainant, her father
Shyam Sunder, her mother Gyatri Devi, and her uncle Subhash Shander.
All of them, could be said to be highly interested in the complainant. No
doubt, the evidence of an interested witness, cannot be disbelieved,
merely on account of his or her interestedness. The Court is, however, in
such a situation, put on guard to scrutinize the evidence of the witnesses
carefully and cautiously. If, after careful and cautious scrutiny, it comes
to the conclusion, that the evidence is reliable, then the same can be taken
into consideration, to reach a particular conclusion. In the face of the
evidence of the interested witnesses, the Court, with a view to assure
itself, also needs corroboration, through an independent source. In case,
the complainant had been continuously tortured by the accused, in the
manner, referred to above, she would have certainly complained the
matter to the Police, as also got herself medico-legally examined. She,
however, did not get herself medico-legally examined, when she was
assaulted. Why she kept mum, for such a long time, was not explained by
her. Had the child of the complainant been actually killed by Shyam Lal,
one of the accused, in connivance with the other accused, she would have
been the first lady, to get the post-mortem examination of the dead-body
conducted, so that truth would have come to the surface, as to whether,
the death of the child, occurred on account of administration of some
poisonous substance, to him, or due to natural causes. She could also
inform her parents, at that time, that the murder of her newly born child
had been committed by Shyam Lal, one of the accused, in connivance
with the other accused, but she did not do so. The complainant, apart
Criminal Appeal No.702-DBA of 2006 10
from being M.A. B.Ed. and B.P.Ed., is admittedly a champion and Gold
Medalist in Judo Crate. She being not a weak and meek lady, and
capable of defending herself, against any physical onslaughts, it could not
be conceived, that she would have remained mum, on all such occasions.
Even, the evidence of the complainant, with regard to her torture, ill-
treatment, and physical assaults, was falsified from Ex.DA, copy of the
written statement, furnished by her on 15.6.1999, in the divorce petition,
under Section 13 of the Hindu Marriage Act, filed against her, by her
husband Amrit Gautam, on 11.3.1999. In that written statement, she in
clear-cut terms stated that she was never maltreated by her husband, at
any stage, from the time of inception of marriage, till her appearance in
that Court on 16.11.2000, nor he had raised any demand of dowry. The
trial Court was right in coming to the conclusion, that the deposition of
Shyam Sunder (PW-2), in a parrot like manner, was not reliable, as he
was found refreshing his memory, after looking at his left palm, whereon
facts of the case were written. Exs.P-1 to P-3, letters, were produced by
the complainant, which were purportedly addressed by her, to her father,
wherein, a reference of the alleged assault was made. These letters were
not attached with the complaint, though the same was filed after about
more than 1 ½ years, from 7.9.1997, nor copies thereof, were supplied to
the accused, prior to the framing of charge. Even, those letters, could be
said to be self-serving statements of the complainant, and could be
fabricated, at any point of time, especially when the same, had not seen
the light of the day, upto the filing of the complaint, and even, at the time
of filing the complaint. Not only this, the complainant made a complaint,
Ex.DG, to the Deputy Commissioner, Bhiwani, wherein, she stated about
Criminal Appeal No.702-DBA of 2006 11
her various complaints, having been put up before the Grievance
Committee, Bhiwani, headed by the then Development Minister,
Haryana, on 14.6.1999. However, vide report, Ex.DG/1, those
complaints were found to be false. Even in those complaints, no mention
of the letters, referred to above, was made by the complainant. This
clearly showed that the letters were fabricated later on, just with a view to
prove the allegations.
14. Gyatri Devi (PW-3), mother of the complainant, no doubt,
stated that the complainant used to narrate her the tale of woes through
letters, copies whereof are Mark-A to Mark-O. However, during the
course of cross-examination, she stated that none of the letters, contained
any allegations, against any of the accused. On the other hand, it was
proved from thise letters that the complainant was leading a happy
married life. The complainant being a well-educated lady, could not bear
the torture at the hands of the accused, had she been actually subjected to
the same. Ex.DC, Ex.DC/1 and Ex.DC/3, letters were produced, during
the divorce proceedings, referred to above, between the complainant, and
her husband, as Exs.P-13 to P-16. These letters did not indicate any ill-
treatment of the complainant-wife, by the accused-husband, or any of his
relatives. Even, Shyam Sunder (PW-2), father of the complainant, when
appeared, in the divorce petition, filed by her son-in-law, against her
daughter, who is the complainant, made statement, copy whereof, is
Ex.DJ, in the Court of the then District Judge, Bhiwani, which was
recorded on 8.1.2001. In that statement, he in clear-cut terms, stated that
no dowry was ever demanded by the accused, from him, or the
complainant. He also, in clear-cut terms, stated that her daughter Sanjay
Criminal Appeal No.702-DBA of 2006 12
Lata, was never ill-treated or tortured by the accused, from the inception
of marriage till 8.1.2001. Keeping in view the previous statements, made
by the complainant, her father and her mother, in the divorce proceedings,
which was pending between her, and her husband, earlier to the filing of
the complaint, referred to above, which contradicted their evidence, in
entirety, regarding the demand of dowry and torture of the complainant,
the trial Court was left with no alternative, than to come to the
conclusion, that the complaint filed by the complainant was nothing, but
a tissue of lies, just with a view to falsely implicate the accused, in the
instant case.
15. Even, no documentary evidence was produced, by the
complainant, to prove that, in fact, the articles of dowry, which were
allegedly given, at the time of marriage of the complainant, were
purchased. Even, no documentary evidence was produced to prove that
the father of the complainant had sufficient means to purchase the
scooter, and other articles, for giving the same to the accused. Shyam
Sunder (PW-2), during the course of his cross-examination, admitted that
he joined BTM in the year 1970, as a labourer, at the rate of Rs.150/- or
Rs.170/- per month, and had retired from the said mill in February 1997,
while drawing Rs.1800/- per month, as salary, as labourer, in the Folding
Branch. He also admitted that he received Rs.55,000/-, as full and final
payment of his all dues and gratuity, at the time of his retirement. It was
further stated by him, that he had, thereafter, joined as an Accountant
(Munim) in Bhagwalti Dharamshala, at the rate of Rs.1500/- per month.
He also admitted, in his statement, copy whereof, is Ex.DJ, made in the
divorce proceedings, that he did not possess any Bank balance, on
Criminal Appeal No.702-DBA of 2006 13
27.4.1996, or at any time prior thereto. He also admitted that he did not
possess any agricultural land. A person, who was a labourer, drawing
only Rs.1500/- per month, and had no bank account, whatsoever, and
could not possibly think of the same, could not be expected to purchase a
scooter, or other dowry articles, and give the same, to the accused. No
doubt, such a lapse was tried to be covered by Subhash Chander (PW-4),
brother of Shyam Sunder, by stating that he paid a sum of Rs.15,000/- to
him, for purchasing dowry articles, as demanded by the accused, and
subsequently paid a sum of Rs.25,000/- to him, for enabling him, to
purchase a scooter, for being given to the accused. However, the
falsehood of the statement of Subhash Chander, was proved when Shyam
Sunder (PW-2), did not state even a single word, with regard to any
amount, having been been demanded by him, or paid to him, by his
brother Subhash Chander, or that he borrowed an amount of Rs.25,000/-
from him, for the purpose of purchase of a scooter, for giving the same to
the accused. On careful scanning of the evidence, referred to above, this
Court comes to the conclusion, that neither the dowry articles, nor the
scooter, nor any cash were paid by the parents of the complainant, to the
accused, nor they demanded the same, nor she was tortured or ill-treated,
in connection with the demand thereof. All these allegations were falsely
levelled against the accused, by the complainant, may be a counter-blast
to the divorce petition, which was filed by the Amrit Gautam, accused,
and in which he succeeded.
16. Not only this, according to her own saying, the complainant
gave birth to another child, from the loins of Amrit Gautam, accused,
after the death of her first child. Had the relations, between the parties,
Criminal Appeal No.702-DBA of 2006 14
been so strained, had the complainant been tortured and ill-treated, from
time to time, and even physically assaulted, by the accused, and had her
first child been killed by the accused, as alleged, she would have been the
last lady to reside in the house of Amrit Gautam. In that event, she would
not have cohabited with Amrit Gautam, accused, so as to become
pregnant again, to deliver second child. This clearly showed that the
death of the first child was in the natrual course. This also clearly proved
that she was never tortured, ill-treated or assaulted. It also could not be
imagined that Amrit Gautam, father of the child, would connive with
other accused, to kill his own newly born son. In the absence of any
medical evidence, that the death of the child was not natural, and that the
complainant was ever tortured or physically assaulted by any of the
accused, at any point of time, right from the inception of marriage, until
she left her bridal house, and for want of production of documentary
evidence, as also the financial incapacity of the parents of the
complainant, regarding the purchase of articles and giving the same, to
the accused, it could be very well said that all the allegations were
trumpted up, by the complainant, just with a view to teach a lesson to the
accused, forgetting that she and her father would be caught in a cobweb
woven by themselves, by way of making contradictory statements, at two
stages of the judicial proceedings i.e. one in the divorce proceedings, and
the other in the Criminal Complaint. On careful perusal of the evidence
and the findings recorded by the trial Court, that the allegations against
the accused were not at all proved, and, on the other hand, were found to
be false, we come to the conclusion, that there is no reason to differ with
the same. The trial Court was, thus, right in recording the acquittal of the
Criminal Appeal No.702-DBA of 2006 15
accused, by finding the evidence produced in the Court, as wholly
unreliable.
17. The trial Court was also right, in coming to the conclusion, that
Sanjay Lata, complainant, (PW-1), and Shyam Sunder (PW-2), father of
the complainant, fabricated false evidence, regarding ill-treatment of the
complainant, in connection with the demand of dowry by Amrit Gautam,
accused, although while appearing as RW-1 and RW-4, in the divorce
proceedings, they admitted that the accused/husband had never ill-treated
the complainant-wife, nor ever demanded any dowry. Such two
contradictory versions made by the complainant and her father in two
different judicial proceedings, between the parties, in two different
Courts of law, could certainly be said to be sufficient to come to the
conclusion that the complainant and her father were having scant regard
for law. The trial Court was, thus, right in holding that the only effort of
the complainant and her father was to seek conviction of the accused, on
trumped up charges, for a capital offence. The trial Court was, thus right
in directing that they should face regular trial, qua the offence, punishable
under Section 194 IPC i.e. for giving or fabricating false evidence, in
judicial proceedings, with intent to cause any person to be convicted of a
capital offence.
18. Reliance was placed by the Counsel for the appellant on
K.T.M.S.Mohd. and another Vs. Union of India 1992(2) RCR
(Criminal) 398 (S.C.), to contend that a person making contradictory
statements, at two different stages, in judicial proceedings, in itself, could
not be said to have committed the offence of perjury under Section 193
IPC, but it must be established that the deponent had intentionally given a
Criminal Appeal No.702-DBA of 2006 16
false statement, or fabricated false evidence, for the purpose of being
used, in any stage of judicial proceedings. There is, no dispute, with the
preposition of law, laid down, in the aforesaid case. In the instant case,
the trial Court came to the conclusion, that the complainant and her
father, committed the offence, punishable under Section 194 IPC, and
they should face a regular trial, for the same. During the course of their
trial, in the Court of law, for the offence, punishable under Section 194
IPC, the accused would be at liberty, to take whatever defence, was
available to them, in accordance with law, to prove that the contradictory
statements, in two judicial proceedings were not made by them,
intentionally. The direction, given by the trial Court, being based on the
correct appreciation of evidence, and law, on the point, does not warrant
interference or deletion. The submission of the Counsel for the appellant,
in this regard, being without merit, must fail, and the same stands
rejected.
19. No other point, was urged, by the Counsel for the parties.
20. In view of the above discussion, it is held that the judgment
rendered by the trial Court, is based on the correct appreciation of
evidence, and law, on the point. The same does not warrant any
interference, and are liable to be upheld.
21. For the reasons recorded, hereinbefore, the appeal is dismissed.
The judgment dated 2.9.2006 is upheld.
(K.S.GAREWAL) (SHAM SUNDER)
JUDGE JUDGE
January 19, 2009
Vimal