IN THE HIGH COURT OF DELHI AT NEW DELHI
STATE GOVT OF NCT OF DELHI ….. Petitioner
Through: Ms.Aashaa Tewari, APP.
RAM GOPAL ….. Respondent
HON’BLE MR. JUSTICE VIPIN SANGHI
HON’BLE MR. JUSTICE P.S.TEJI
1. The State has filed a focus underneath Section 5 of a Limitation Act review with Section 482 of Cr.P.C. for seeking condonation of check of 140 days in preferring a concomitant leave petition to plea a impugned visualisation antiquated 25.01.2017 upheld by schooled Special Judge(NDPS)/Additional Session Judge, North-West District, Rohini Courts, Delhi in S.C. No. 52004/2016 in box FIR No. 847/2014, purebred underneath Section 498A/304B of IPC during Police Station Begum Pur, Delhi.
2. In a focus for condonation of delay, it has been submitted that a appellant could not cite a interest within a stipulated duration as a record of a box was sent to several authorities and after flitting by several channels, a record was sent to Department of Law and Justice and Legal Affairs. On 06.02.2017, a news on exculpation was prepared by a Additional Public Prosecutor that was forwarded to a Chief Prosecutor and on 08.02.2017, a Chief Prosecutor found a box fit for interest and referred a matter to a Director of Prosecution. On 09.02.2017, a Director of Prosecution gave a opinion and vide minute antiquated 27.07.2017, a Department of Law, Justice and Legislative Affairs communicated a preference to record appeal. Thereafter, duplicate of a impugned visualisation was infallible and a interest was prepared. In support of a contentions made, judgments in box of Collector Land Acquisition v. Katiji MANU/SC/0460/1987 : 1987 (2) SCC 107 and State of Nagaland v. Lipok AO and others MANU/SC/0250/2005 : 2005 (3) SCC 752 have been relied upon.
3. In Balwant Singh (Dead) v. Jagdish Singh Ors MANU/SC/0487/2010 : AIR 2010 SC 3043 Hon’ble Supreme Court has celebrated that :
“In a box of Union of India v. Tata Yodogawa Ltd., [MANU/SC/0694/1988 : 1988 (38) Excise Law Times 739 (SC)], this Court while extenuation some embodiment to a Government in propinquity to condonation of delay, still reason that there contingency be some approach or try to explain a means for such check and as there was no wheeze to explain what authorised problems occurred in filing a Special Leave Petition, a focus for condonation of check was dismissed. Similarly, in a box of Collector of Central Excise, Madras v. A.MD. Bilal Co., [MANU/SC/1360/1999 : 1999 (108) Excise Law Times 331 (SC)], a Supreme Court declined to acquit a check of 502 days in filing a interest since there was no acceptable or reasonable reason rendered for condonation of delay. The supplies of Order 22 Rule 9, CPC has been a theme matter of authorised inspection for substantial time now. Sometimes a Courts have taken a perspective that check should be condoned with a magnanimous attitude, while on certain occasions a Courts have taken a stricter perspective and wherever a reason was not satisfactory, have discharged a focus for condonation of delay.”
4. From a above facts, it appears that a check occurred origin a record was referred to a Department of Law, Justice and Legislative Affairs. We might have been prone to serve inspect a justification for a delay, yet we find on hearing of a box on merits that, even otherwise, a leave petition does not consequence distribution of notice. In a whole focus for condonation of delay, a State has unsuccessful to give reasonable reason that caused check in filing a appeal. There is no wheeze in a focus to explain what authorised problems occurred in filing a focus seeking leave to record a appeal. We are of a perspective that a postulant has not satisfactorily explained a delay. On this brief ground, a benefaction focus and a leave petition are probable to be dismissed. In any event, we have also examined a impugned judgment. We are of a perspective that, even on merits, a State has been incompetent to make out a box for extend of leave in a benefaction leave petition seeking leave to interest opposite a visualisation antiquated 25.01.2017 upheld by a Court below.
5. Leave to interest has been sought by a State feeling discontented by a visualisation of exculpation antiquated 25.01.2017 delivered by a Court below. It has been submitted that a hearing probity erred in watching that there was no sincerity in a prosecution’s box in honour of a offences by a indicted of cruelty and nuisance of Ms. Bindu, his wife, for dowry and for causing her dowry genocide or abetment to self-murder by hanging.
6. As per a FIR of a benefaction case, a allegations leveled are that a indicted persons, Mr. Ram Gopal and Ms. Tara Devi, had subjected a defunct Ms. Bindu on opposite dates, and during several times, particularly, a time shortly before her genocide on 11.08.2014, to cruelty and nuisance in tie with direct for dowry, due to that a defunct died an assumed genocide within 7 years of her marriage.
7. After execution of investigation, assign piece was filed in a Court. Charge underneath Section 304B/498A IPC was framed opposite a indicted to that he pleaded not guilty. To infer a case, a charge examined 19 witnesses, namely, Mr. Sant Kumar, father of defunct (PW 1), Ms. Munni Devi, mom of a defunct (PW 2), Mr. Naresh, hermit of defunct (PW 3), Ms. Ahilya, sister-in-law of defunct (PW 4), Ct. Sandeep Kumar (PW 5), ASI Ajit Singh (PW 6), Ct. Jagdish Kumar (PW 7), ASI Kailash Chand (PW 8), Ct. Pankaj (PW 9), Mr. Amit Kumar (PW 10), Dr. Mukesh Kumar (PW 11), HC Sukram Pal (PW 12), Dr. Kanak Lata Verma (PW 13), Mr. Bhim Singh (PW 14), Ms. Vidya (PW 15), HC Prahlad Singh (PW 16), SI Rajesh Kumar (PW 17), Inspector Sudhir (PW 18) and Inspector Rajesh Kumar (PW 19).
8. The element open witnesses of a benefaction box were PW 1, father of a deceased, PW 2, mom of a deceased, PW 3-brother of a deceased, PW 4-sister-in-law of a deceased, PW 14-village neighbour of a father of a deceased, and PW 15- a apart relations of a father of a deceased.
9. We have examined a applicable testimonies of a element witnesses. PW 1-father of a defunct has staid in his testimony that he got his daughter, defunct Bindu married to a indicted Ram Gopal, according to Hindu rites and ceremonies, and had given sufficient dowry in her matrimony as per his possess wishes. Accused Ram Gopal, allegedly demanded a bullion bracelet during a time of a marriage, yet a same could not be supposing by a father of a deceased. He serve staid that after a duration of 2-3 months of a marriage, a mother-in-law of his daughter told him that she was discontented with a domicile work of his daughter. After 5-6 months into a marriage, indicted demanded a bullion bracelet and one motorcycle from a deceased, to that this declare sensitive a defunct and a indicted that he could not do these final overdue to his financial condition. On 07.08.2014, this declare brought his daughter to his residence from her matrimonial residence on a arise of Raksha Bandhan. On 10.08.2014, he left for encampment Malihara for Delhi and reached his residence on 11.08.2014, when he found out that his daughter was not benefaction and was sensitive that a indicted had come on 10.08.2014 and taken Bindu along with him. On 11.08.2014, he was telephonically sensitive that his daughter had lapsed and her upheld physique was in BSA Hospital.
10. PW 2-Munni Devi, mom of a defunct has staid in her testimony that her daughter Bindu, post marriage, started staying in her matrimonial residence and was not kept properly. The mother-in-law of a defunct did not yield her with correct food and remained discontented with her domicile work. She serve staid that a indicted had lifted a direct of bullion chain, wrist watch and one motorcycle and used to harass her daughter by observant that a pronounced articles were not given during a time of a marriage.
11. PW 3-the hermit of a defunct and PW 4-the sister-in-law of a defunct have also deposed on identical lines as that of PW 1 and PW 2.
12. A examination of testimony of above mentioned kin of defunct shows that yet there is discuss of direct of dowry by a indicted from a defunct and PW 1, yet in their whole testimony there is no wheeze of cruelty meted out to a defunct on comment of direct of dowry.
13. In a box of Devi Lal v. State of Rajasthan MANU/SC/8037/2007 : AIR 2008 SC 332, a Supreme Court has celebrated that a mixture of supplies of territory 304B IPC are (1) that a genocide of a lady was caused by any browns or corporeal damage or in some resources that were not normal; (2) such genocide occurs within 7 years from a date of her marriage; (3) that a plant was subjected to cruelty or nuisance by her father or any relations of her husband; (4) such cruelty or nuisance should be for or in tie with a direct of dowry; and (5) it is determined that such cruelty and nuisance was finished shortly before her death. It was serve celebrated that before an indicted is found guilty for elect of an offence, a Court contingency arrive during a anticipating that a mixture thereof have been established. It was reason that matter of a declare for a pronounced purpose contingency be review in a entirety. It is not compulsory for a declare to make a matter in accord with a diction of a territory of a statute. What is indispensable is to find out either a evidences brought on record infer a mixture thereof.
14. In a box of Vipin Jaiswal v. State of A.P. Rep. by Pub. Prosecutor, MANU/SC/0253/2013 : 2013 STPL 198 SC a Supreme Court reason that a charge is compulsory to infer over reasonable doubt that a defunct was subjected to cruelty or nuisance by a accused. It was celebrated from a justification of a charge witnesses and in sold PW 1 and PW 4, that they have finished ubiquitous allegations of nuisance by a appellant towards a deceased, yet had not brought in justification any specific acts of cruelty or nuisance by a appellant on a deceased. The responsibility was on a charge to infer over reasonable doubt a part of Section 498A IPC. Relevant portions from a visualisation reads as underneath :
“In any case, to reason an indicted guilty of both a offences underneath Sections 304B and 498A, IPC, a charge is compulsory to infer over reasonable doubt that a defunct was subjected to cruelty or nuisance by a accused. From a justification of a charge witnesses, and in sold PW 1 and PW 4, we find that they have finished ubiquitous allegations of nuisance by a appellant towards a defunct and have not brought in justification any specific acts of cruelty or nuisance by a appellant on a deceased…..
In a deliberate opinion, a justification of DW1 (the appellant) and Ext. D19 expel a reasonable doubt on a charge story that a defunct was subjected to nuisance or cruelty in tie with direct of dowry. In a view, responsibility was on a charge to infer over reasonable doubt a part of Section 498A, IPC and a essential part of corruption underneath Section 498A is that a accused, as a father of a deceased, has subjected her to cruelty as tangible in a Explanation to Section 498A IPC. Similarly, for a Court to pull a hypothesis underneath Section 113B of a Evidence Act that a appellant had caused dowry genocide as tangible in Section 304B, IPC, a charge has to infer besides a direct of dowry, nuisance or cruelty caused by a indicted to a defunct shortly before her death. Since a charge has not been means to infer over reasonable doubt this part of nuisance or cruelty, conjunction of a offences underneath Sections 498A and 304B, IPC has been finished out by a prosecution.”
15. This Court in a box of Kanwar Pal v. Shakuntala And Ors MANU/DE/0190/2015 : 2015 IV AD (Delhi) 450 celebrated that :
“From no widen of imagination, from a justification led by a prosecution, a benefaction box could be culminated into self-assurance of a respondents No. 1 to 5 underneath Section 498A review with 34 IPC as good as 304B review with 34 IPC. The judgments relied on by a postulant are of no assistance in perspective of a contention finished above. This Court does not find any procedural irregularity, unaware of element evidence, misreading of a same or miscarriage of justice. There is no jurisdictional blunder in a visualisation upheld by a hearing court. Neither there is any disaster to practice a office or surpassing of office by a schooled hearing probity while flitting a judgment. Thus, gripping in perspective a judgments referred in box of Bhagwant Singh (supra); Hydru (supra); Ram Briksh Singh (supra); D. Stephens (supra) and Jagannath Choudhary (supra), a visualisation upheld by a schooled hearing probity can't be termed as not sustainable.”
16. Further in a box of Ramesh Chander v. State of Delhi MANU/DE/3419/2016 : 2017 (1) JCC 145 it was celebrated that :
“As per a ratio of a law staid down by Hon’ble Apex Court in Vipin Jaiswal’s box (supra), in a deficiency of specific allegations like date, time and occurrence that too by open witnesses, who were not found arguable and trustworthy, a charge had unsuccessful to settle over reasonable doubt that a defunct was meted with cruelty and nuisance by a indicted persons for or in tie with direct of dowry.”
17. Necessary mixture of dowry genocide as supposing underneath Section 304B of IPC are :
(i) Deceased was a theme matter of cruelty on comment of dowry and culminates into shame of indicted underneath Section 498A IPC;
(ii) The genocide should have taken place due to corporeal injuries other than normal circumstances; and
(iii) Such genocide was a theme matter of cruelty shortly before death.
18. As distant as a genocide of a defunct Bindu is concerned, it is not in brawl that she died due to unresolved that shows that a genocide of a defunct was not underneath normal circumstances, and was due to a corporeal injuries that do a initial part for a elect of corruption underneath Section 304B IPC.
19. The second ingredient-that genocide of a defunct had taken place within 7 years of her marriage, is clearly determined from a evidence, as matrimony had taken place on 06.05.2013 and her genocide took place on 11.08.2014 i.e. a really subsequent year.
20. The subsequent and a many vicious part compulsory to be valid from a justification was that a defunct was subjected to cruelty and nuisance on comment of direct of dowry by her father or any relations of her husband, and that a same was finished shortly before death. The charge has constructed PW 1, PW 2, PW 3 and PW 4 to infer these ingredients. The minute contention of their testimony has already been made. It is compulsory to settle a corruption of Section 498A IPC to infer a charges underneath Section 304B IPC. Discussion finished above shows that a charge has unsuccessful to lead sufficient justification to infer a shame of a indicted underneath Section 498A IPC. Consequently, a elect of corruption underneath Section 304B IPC is also not proved.
21. The final part is formed on a elect of corruption underneath Section 498A IPC and while committing a corruption underneath Section 498A IPC, if it connects with a death, afterwards it would be an corruption punishable underneath Section 304B IPC. The charge has unsuccessful miserably to settle over reasonable doubt that any cruelty or nuisance was meted out to a defunct by a accused, let alone shortly before her death. The testimony of above mentioned charge witnesses-to a outcome that bullion bracelet and motorcycle was demanded per se does not settle a cruelty and nuisance towards a deceased. Evidently, a genocide of a defunct had taken place on 11.08.2014 i.e. within one year of marriage. The charge has unsuccessful to settle that after a matrimony of a deceased, there were resources of nuisance or cruelty that took place on comment of direct of dowry that could bond with a genocide of a deceased. By no widen of imagination, a justification led by a charge in a benefaction box could cap into self-assurance of a indicted underneath Section 304B IPC.
22. Furthermore, in sequence to settle a corruption underneath Section 304B IPC of dowry death, a hypothesis underneath Section 113B of a Evidence Act also can't be lifted opposite an indicted until exclusively a corruption underneath Section 498A IPC is valid by heading justification of specific claim with courtesy to time and date of such direct and cruelty, and similarly substantiating a present live couple between a outcome of cruelty formed on dowry direct (offence underneath territory 498A IPC) and a genocide of a victim.
23. Consequently, a leave petition is, accordingly, dismissed