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Parveen Kumar vs State on 20 February, 2017

*        IN THE HIGH COURT OF DELHI AT NEW DELHI


                                      RESERVED ON : 15th NOVEMBER, 2016
                                      DECIDED ON : 20th FEBRUARY, 2017

+                                      CRL.A. 662/2014
        PARVEEN KUMAR                                         ..... Appellant
                    Through :                Mr.Ramesh Gupta, Sr.Advocate with
                                             Mr.Bharat Sharma, Mr.Avinish Rana
                                              Mr.Ajay P.Tushir, Advocates.

                                 VERSUS

        STATE                                                ..... Respondent
                                 Through :   Ms.Meenakshi Dahiya, APP.

+                                      CRL.A. 841/2014
        RAMESH CHANDER                                        ..... Appellant
                    Through :                Mr.Ramesh Gupta, Sr.Advocate with
                                             Mr.Bharat Sharma, Mr.Avinish Rana
                                              Mr.Ajay P.Tushir, Advocates.
                                 VERSUS

        STATE (NCT OF DELHI)                                 ..... Respondent
                      Through :              Ms.Meenakshi Dahiya, APP.

AND
+                                      CRL.A. 847/2014
        AJAY KUMAR                                             ..... Appellant
                                 Through :   Mr.N.Hariharan, Sr.Advocate with
                                             Mr.Vaibhav Sharma, Mr.Avnish
                                             Rana, Mr.Siddharth S.Yadav 
                                             Mr.Aditya Vaibhav Singh,
                                             Advocates.




Crl.A.662/2014  connected matters.                                    Page 1 of 12
                                  VERSUS

        STATE (NCT OF DELHI)                                ..... Respondent
                      Through :             Ms.Meenakshi Dahiya, APP.

         CORAM:
         HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. The instant appeals have been preferred by the appellants –
Parveen Kumar, Ramesh Chander and Ajay Kumar to challenge the legality
and correctness of a judgment dated 30.04.2014 of learned Addl. Sessions
Judge in Sessions Case No.23/2013 arising out of FIR No.88/2011 PS BHD
Nagar by which they were held guilty for committing offences punishable
under Sections 304B/498A/34 IPC. By an order dated 05.05.2014, they were
sentenced to undergo RI for ten years with fine `10,000/- each under Section
304B/34 IPC and RI for three years with fine `2,000/- each under Section
498A/34 IPC. Both the sentences were to operate concurrently.

2. Briefly stated, the prosecution case as reflected in the charge-
sheet was that Meenakshi (since deceased) was married to Ajay on
19.04.2010. Her death took place in the matrimonial home on 16.05.2011.
In her statement (Ex.PW-3/A) Laxmi – victim’s mother informed that on
16.05.2011 at around 08.00 p.m. she got a telephone call from Ajay, her son-
in-law, informing that Meenakshi had fallen from the stairs. Before their
reaching the hospital i.e. Ortho Hospital, Gopal Nagar, Meenakshi had
already expired. She levelled allegations of harassment on account of dowry
demands against the appellants. In his statement (Ex.PW-5/A) Sunil –

Crl.A.662/2014 connected matters. Page 2 of 12

victim’s brother alleged that his sister used to be given beatings during her
stay in the matrimonial home.

3. During investigation, post-mortem examination of the body was
conducted. As per post-mortem report (Ex.PW-6/A) dated 17.05.2011
prepared by PW-6 (Dr.Pervinder Singh) external injuries numbering 19 in
all were found on the victim’s various body organs, including vital ones. On
internal examination, it was observed :

“(1) Peritoneal cavity contained clotted
blood.

(2) Left lobe of liver was lacerated.
(3) Effusion of blood present under the
scalp over frontal region of skull. Sub dural
and sub arachnoid haemorrhage present
over left temporal lobe of brain in an area of
4.5 X 4.5 c.m. Contusion present over left
temporal lobe of brain in an area of 4.5 X
4.5 c.m.”

Death was opined due to haemorrhage and shock along with
cranio cerebral damage (head injury) consequent to multiple injuries
described. All the injuries were opined ante-mortem caused by hard blunt
force impact (object). These were found collectively sufficient to cause
death in the ordinary course of nature.

4. Upon completion of investigation, a charge-sheet was filed
against the appellants for commission of offences punishable under
Sections
498A/302/304B/34 IPC. By an order dated 15.09.2011, charge under
Sections 498A/304B/302/34 IPC was ordered to be framed against the
appellants.

Crl.A.662/2014 connected matters. Page 3 of 12

5. Charge framed on 19.10.2011 against the appellants reads as
under :

“That on or before 16.05.2011, at your
house at RZ-B 204, Gopal Nagar Delhi,
within the jurisdiction of PS Baba Haridas
Nagar, you all the accused, subjected Smt.
Meenakshi (deceased) w/o accused Ajay
Kumar, to cruelty on account of demand of
dowry and you all thereby committed an
offence punishable U/s 498A IPC read with
Section 34 IPC and within the cognizance of
this court.

Secondly on 16.05.2011 at about
11.00 p.m., at RZ-B 204, Gopal Nagar
Delhi, within the jurisdiction of PS Baba
Haridass Nagar, Smt. Meenakshi (since
deceased) was found dead otherwise than
under normal circumstances within the span
of seven years of her marriage and soon
before her death she was subjected to
cruelty or harassment in connection with the
demands of dowry by you, in furtherance of
common intention of you all and you all
thereby committed an offence punishable
U/s 304-B/34 IPC and within the cognizance
of this court.

Or in alternative, on the aforesaid
date and place, you all, in furtherance of
your common intention committed murder of
Smt. Meenakshi (deceased) W/o accused
Ajay Kumar and thereby committed an
offence of murder punishable U/s 302/34
IPC and within the cognizance of this court.

And I hereby direct that you all be
tried for the aforesaid offences.”

Crl.A.662/2014 connected matters. Page 4 of 12

6. To substantiate its case, the prosecution examined thirty-five
witnesses. In 313 Cr.P.C. statements, the appellants denied their
involvement in the crime and pleaded false implication. During arguments,
learned counsel for the appellants urged that there was no demand of dowry
it being a dowry-less marriage. The deceased was suffering from various
diseases including epilepsi and menorrhagia and her death was due to
excessive bleeding. She was provided with due treatment but she did not
recover and collapsed.

7. By the judgment dated 30.04.2014, the learned Trial Court
found the appellants guilty for commission of offence under
Sections
498A/304B/34 IPC. By the same judgment, however, the learned Trial
Court did not give any findings about commission of offence punishable
under Section 302/34 IPC and simply “dropped it”. The relevant para 98 of
the conclusion reads as under :

“98. From the above discussion, I am of
the opinion that prosecution has been
successful in proving that deceased died
unnatural death within seven years of her
marriage and she was being harassed and
tortured by the accused persons for demand
of dowry so soon before her death and the
presumption available to the prosecution
under section 113-B of the Indian Evidence
Act has been raised against the accused
persons which accused failed to rebut.
Therefore, the prosecution has been
successful in bring home the guilt of the
accused persons under section 498A/304-
B/34 IPC and accused persons are hereby

Crl.A.662/2014 connected matters. Page 5 of 12
convicted under section 498A/304-B/34 IPC
and alternative charge under section 302/34
IPC against the accused persons is hereby
dropped. ”

8. In my considered view, the Trial Court fell in grave error in not
returning findings on the alternative charge framed under Section 302/34
IPC. The impugned order ‘dropping’ the charge under Section 302 IPC is
manifestly illegal and against the accepted procedure. No reasons
whatsoever have been given by the Trial Court for ‘dropping’ the charge
under Section 302/34 IPC. It has neither convicted the appellants nor
acquitted them for commission of offence under Section 302/34 IPC.

9. In similar circumstances, in case ‘Tapas Kumar Ghosh vs. State
of West Bengal’, 2011 (15) SCC 354, the Trial Court had framed alternative
charge under Sections 302/34 IPC, besides charges under
Sections
498A/304B/34 IPC. Convicting the accused under Sections 498A/304B
IPC, the Trial Court specifically recorded in its judgment that the Court was
not considering the alternative charge under Section 302 IPC. The said
judgment was confirmed by the High Court, reducing the period of sentence.

10. Observations of the Supreme Court are relevant to note :

“4. The question raised before us is that
having framed an alternative charge under
Section 302 of the Indian Penal Code, the
Appellant could not have been held to be
guilty of an offence under Section 304B IPC
inasmuch as the essential ingredients of both
the offences are distinct and different. The

Crl.A.662/2014 connected matters. Page 6 of 12
onus in the case of Section 304B IPC shifts
to the accused, unlike under
Section 302 IPC where the onus continues to
be on the prosecution and it is expected to
prove the case beyond any reasonable
doubt.

5. Having examined the evidence on record,
we do not propose to deal with this legal
issue at any greater length. Suffice it to note
that no prejudice had been caused to the
present Appellant inasmuch as the trial
court neither considered the alternative
charge nor punished the accused for that
offence. Thus, we leave this question open.”

11. This Court in ‘Prakash Chander vs. The State’, 1995 Crl.L.J.
368 had the occasion to deal with such a situation. In that proceedings also,
the accused persons therein were charged for the offence under Section 302
IPC read with Section 34 IPC for intentionally or knowingly in furtherance
of their common intention causing the death of one Swaran Kanta. In the
alternative, they were charged for the offence of dowry death punishable
under Section 304 B IPC. The learned Addl. Sessions Judge acquitted Pyare
Lal, Usha, Praveen Kumar and Lila Wanti of the charge under
Sections
302/34 IPC. Prakash Chander was, however, found guilty of offence of
murder of his wife and was convicted under Section 302 IPC modifying the
charge from Section 302/34 IPC to Section 302 IPC. The alternative charge
under Section 304B IPC against Lila Wanti was modified and she was
convicted under Section 498A IPC. Regarding Prakash Chander, the learned
Addl. Sessions Judge held that the ‘alternative charge did not survive and it
was cancelled’.

Crl.A.662/2014 connected matters. Page 7 of 12

12. This Court observed :

“26. Our aforesaid conclusion on offence
under section 302 IPC, however, does not
conclude the entire matter as there was also
an alternate charge against accused
Prakash Chand and other accused for
having caused death of Mrs. Swaran Kanta
by burn or otherwise than normal
circumstances, within seven years of her
marriage and they having subjected her to
cruelty and harassment for and in
connection with demand of dowry and
thereby having committed an offence of
“Dowry Death” punishable under
Section 304-B IPC.

27. On charge under section 304B, learned
Additional Sessions Judge has held that “it
does not survive and it is cancelled.”

28. On the aspect of offence under
section 304B, IPC, the questions which fall
for determination are :-

1. Whether the order cancelling charge
under section 304-B IPC is legal ?

2. If answer to question No. 1 is in negative,
does the cancellation of charge on the facts
and circumstances of the case, amount to an
order of acquittal and, if so, what is the
effect of State not having filed an appeal ?

3. Whether evidence establishes or not the
commission of offence under section 304-B,
IPC by the accused Prakash Chander ?

29. Cancellation of the charge after the
evidence has been led is unknown to the

Crl.A.662/2014 connected matters. Page 8 of 12
criminal jurisprudence. Before a charge is
framed an accused may be discharged if the
facts and circumstances so justify. After the
charge is framed the accused has either to
be found guilty or not guilty of the charge.
Mr. Sud also did not dispute that the order
cancelling the charge is not legal. The
learned trial court committed manifest error
by holding that the alternate charge does
not survive and is cancelled. The first
question is, Therefore, answered in
negative.”

13. This Court further held :

“38. The present case, in our view, is on
much stronger footing. The accused has not
been acquitted of offence under
section 304B, IPC but only charge has been
cancelled which is not permissible in law.
That does not, on the facts and
circumstances of the case as already noticed
above, amount to acquittal. Assuming,
however, that tantamounts to an implied
acquittal, it would only show that the said
acquittal was for the reason that he was held
guilty of the main offence of murder and not
independently. Our conclusion that in view
of two reasonable views it would not be safe
to hold Prakash Chander guilty of offence
under section 302 IPC, is not an impediment
for his conviction under section 304-B, IPC.
In our view the point in issue is squarely
covered by Kalawati’s case.

XXXX XXXX XXXX

Crl.A.662/2014 connected matters. Page 9 of 12

40. The High Court cannot be a silent
spectator when it finds that the trial court
has committed a manifest error and has a
duty to correct the said error. That manifest
error is the order for cancellation of a
charge under section 304B, IPC. The
interest of the accused is, of course,
paramount but at the same time the court
has also to keep in view the compelling
public interest to see that because of a
manifest error the administration of
criminal jurisprudence is not reduced to
total ineffectiveness which will breed
dissatisfaction amongst the public. Like all
procedural laws Code of Criminal
Procedure is also designed to subserve the
ends of justice and not to frustrate them by
mere technicalities. Viewed from this angle
too it would be our duly to find out whether
the accused is guilty of the charge under
section 304B, IPC or not.

XXXX XXXX XXXX

43. We also find that Sections 302 and 304B,
IPC are not mutually exclusive. If in a case
material on record suggest commission of
offence under section 302, IPC and also
commission of offence under Section 304B,
IPC, the proper course would be to frame
charges under both these sections and if the
case is established then accused can be
convicted under both the sections but no
separate sentence need be awarded under
section 304B, in view substantive sentence
being awarded for the higher offence under
Section 302, IPC. In the present case though
court rightly framed charge also under
section 304B, IPC and also in the course of

Crl.A.662/2014 connected matters. Page 10 of 12
judgment came to the conclusion that
cruelty, demand of dowry and death within
seven years of marriage had been
established but ultimately proceeded to
cancel the challan on the wrong assumption
that the two offences are mutually exclusive.
In the facts and circumstances of the case
we do not think that any prejudice would be
caused to the accused by examination of the
case from the point of view of offence under
section 304-B, IPC. In our view the learned
Additional Sessions Judge, for the
conclusion reached by him, after holding
Prakash Chander guilty of offence under
section 304B need not have awarded any
separate sentence in respect of the said
offence.

44. In view of aforesaid discussion our
answer to the second question is that
cancellation of charge for offence under
Section 304-B, IPC does not amount to an
order of acquittal and the setting aside of
the order of conviction for the offence under
Section 302, IPC is not an impediment in
this court examining whether commission of
offence under section 304-B, IPC stands
established or not. The State not having filed
any appeal against the order cancelling
charge is of no effect.”

14. In the instant case, a prejudice has been caused by not giving
any finding on the alternative charge framed under Sections 302/34 IPC. It
deprived the State to take any steps in challenging ‘acquittal’ under
Section
302 IPC. In case of conviction under Sections 302/34 IPC, it would have
given a right to the appellants to challenge conviction under Sections 302/34

Crl.A.662/2014 connected matters. Page 11 of 12
IPC before the Division Bench of this Court. It was imperative for the Trial
Court to give a positive finding whether the prosecution was able to
establish the commission of the offence under Sections 302/34 IPC or not.
The impugned judgment merely ‘dropping’ the charge under Section 302/34
IPC, thus, cannot be sustained.

15. In the light of above discussion without commenting upon the
findings recorded under Sections 304B/34 IPC, the matter is sent back to the
Trial Court for disposal on merits and to give findings on the alternative
charge framed under Sections 302/34 IPC too.

16. The appeals stand disposed of accordingly. The appellants (if
in custody) shall be produced before the Trial Court on 28.02.2017.

17. Trial Court record be sent back forthwith with the copy of the
order.

18. Copy of the order be sent to Superintendent Jail for
information.

19. Observation in the order shall have no impact on the merits of
the case.

(S.P.GARG)
JUDGE
FEBRUARY 20, 2017 / tr

Crl.A.662/2014 connected matters. Page 12 of 12

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