SANJIV Vs. STATE

JUDGEMENT

(1.) THE present appeal filed under S. 374 CrPC has been directed against the judgment dated 30/1/2003 passed in Sessions Case No. 135/1997, whereby the appellant husband of the deceased was convicted under S. 498A/304B Indian Penal Code, 1860 and order of sentence dated 30.01.2002 whereby the appellant has been sentenced to undergo rigorous imprisonment for 3 years and 7 years, respectively.

(2.) THE factual matrix of the case, as set out in the appeal, is as follows: In the afternoon of 18/10/1996 when the appellant was at his shop, he was informed about the incident of suicide having been committed by his deceased wife Shobhana. The appellant on hearing, rushed to his residence and the Doctor PW7 Dr. Jagdish Chander Pathak was immediately called, who found the deceased in an unconscious state but was still breathing. The appellant took her to Khetrapal Hospital, but despite the best efforts of Dr. Anil Khetrapal, PW 12, the deceased did not survive. The parents of the deceased were informed of the said mishap on 18.10.1996 and they arrived on 19.10.1996. The parents were quite normal in their behavior against the appellant and his family. But suddenly, after five days their behavior completely changed towards the appellant and his family and an FIR bearing no. 655/1996 was lodged on 23/10/1996 at P.S. Dabri on the direction of SDM, Hauz Khas, Mr. K.K. Dahiya, PW3 and proceedings were initiated pursuant to the said FIR. Vide judgment dated 30/1/2003, all other accused/family members of the appellant were acquitted by giving them benefit of doubt but the appellant was convicted under Ss. 498-A and 304 Indian Penal Code, 1860 and was sentenced to RI for 7 years and fine. Aggrieved with the said judgment and order dated 30/1/2003, the present appeal has been preferred by the appellant.

(3.) PER contra, Mr. Sanjay Lao, APP for the State contended that there was absolutely no delay on the part of the parents of the deceased in lodging the FIR as the incident took place on 18/10/1996 and then the parents of the deceased were informed, who came from Uttar Pradesh on 19/10/1996 and since they were in a state of shock being busy with the cremation ceremony and other last rites and rituals and therefore could only get the FIR registered on 23/10/1996 upon directions by SDM, Hauz Khas. The counsel submitted that the contention of the counsel for the appellant that there was no demand for dowry and there was contradiction in the testimony of PW1 mother of the deceased and PW2 father of the deceased is without any merits and is belied from the perusal of their statements wherein it has been clearly mentioned that the appellant demanded Rs. 50,000.00 and a Maruti car from the parents of the deceased and also used to physically and mentally torture her from time to time. The counsel submitted that in Para 4 of the impugned judgment the trial court held that Rs. 50,000.00 were deposited in the account of the appellant and were withdrawn on the same day and the appellant did not bring on record any passbook or anything to show that the same is false. The counsel pointed out that the father of the deceased also stated that he told grand-father of the appellant regarding ill treatment of his daughter on which the father of the appellant assured that nothing would happen to his daughter. As regards the issue of letter dated 13/7/1996, purported to have been written by the deceased wherein she disclosed how she was being harassed by the appellant and his family tallying with the admitted handwriting of a notebook, written 5 years prior to the writing of the said letter dated 13/7/1996, the counsel contended that as per the observations in the CFSL report by the handwriting expert, the handwriting of said letter and the notebook tallied at certain points but also showed difference at some points. The expert also observed that the possibility of the handwriting pertaining to two different people cannot be ruled out and it cannot be said definitely who exactly wrote them, which fact clearly shows that there is an equal possibility of the same being written by the deceased. The counsel thus, submitted that the said letter dated 13/7/1996 goes on to show clear nexus between the alleged demand and the death of the deceased. Coming to the next contention, the counsel urged that it is for the prosecution to decide, to whom they want to examine and since in the case of brother of the deceased, there would have been a repetition of the statement of the parents of the deceased therefore the prosecution correctly dropped him. The counsel also submitted that PW3 SDM, K.K. Dahiya has explained in his testimony that he was present in the room when the statements of PW1 and 2 were recorded by his clerk on his dictation. The counsel also took support of Sections 174-176 of the Code of Criminal Procedure, 1973 and contended that nowhere it is the requirement of law that the SDM should have recorded the statement of PW1 and PW2 in his own handwriting. It was sufficient that SDM was present in the room when the statements of PW1 and PW2 were recorded on being dictated by him to his clerk. The counsel also urged that the presumption arising under S. 113-B Evidence Act against the appellant has not been rebutted by him, which strengthens the prosecution case.