Dismissed

State v. Pardeep Kumar

Himachal Pradesh HC2 Jan 2023CR.A/299/2009

Case brief

AI extract

What is this about?

On appeal, the High Court dismissed the State's petition challenging the acquittal of the respondent in a dowry harassment and cruelty case. The court held that prosecution evidence was insufficient to prove guilt beyond reasonable doubt due to lack of corroboration and inability to link injuries to a specific incident.

What did the court decide?

Appeal filed by the State against the acquittal is dismissed.

State Vs Pardeep Kumar — Domestic Violence | Himachal Pradesh HC (2023)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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	Cr. Appeal No	. 299 of 2009
	Reserved on	: 15.12.2022
	Decided on:	:02.01.2023
State of Himachal Pradesh	.…	…Appellant.
	Versus
Pardeep Kumar	…	…Respondent

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Coram

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The Hon’ble Mr. Justice Satyen Vaidya, Judge.

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Whether approved for reporting?¹ Yes

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For the appellant :	Mr. Desh Raj Thakur, Additional
	Advocate General with Mr. Narender
	Thakur, Deputy Advocate General.
For the respondent:	Mr. N.K. Thakur, Sr. Advocate with
	Mr. Karanveer Singh, Advocate.

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Satyen Vaidya, Judge

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State of Himachal Pradesh has assailed

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judgment dated 17.11.2008, passed by learned Additional Sessions Judge, Una in Criminal Appeal No. 10/2007, whereby the judgment dated 20.07.2007, passed by learned Judicial Magistrate First Class, Court No. 2, Amb, District Una, H.P. in

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1 Whether reporters of the local papers may be allowed to see the judgment?

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Criminal Case No. 138-1-2002/65-II-2003 convicting the respondent, has been set aside.

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Respondent alongwith two others namely Ramesh Chand and Sudershana Devi were tried for offences under Section 498-A and 325 read with Section 34 of IPC before learned Judicial Magistrate First Class, Court No. 2, Amb, District Una, H.P.in Criminal Case No. 138-1-2002/65-II-2003,respondent was convicted for offences under Sections 498-A and 325 of IPC, however, the other two accused persons were acquitted.

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The case was registered against the

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respondent and other co-accused, on the basis of complaint made by Smt. Mamta Sharma, wife of respondent alleging inter alia that she had been harassed and maltreated for demand of dowry by the accused persons after her marriage. The allegations were levelled against respondent and his parents. As per complainant, she had procured money from her parents many times on the asking of the accused persons. Respondent used to give her beatings. He

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had a Car Repair Work Shop at Delhi. When she accompanied her husband to Delhi, there also, she was being ill-treated. After her return from Delhi, complainant had narrated the entire incident to her parents. At the instance of parents of complainant and with the intervention of certain other persons husband and father-in-law of complainant agreed to take the complainant with them. She stayed in her matrimonial home for about five months, but throughout this period, she was ill-treated. In June, the complainant again accompanied her husband to Delhi, but there also, respondent kept on ill treating her by giving beatings. He was always coercing the complainant to bring money from her parents. On the night of 28.07.2002, respondent after bolting the door from inside stuffed the mouth of complainant with a cloth and gave her beatings with fists. Complainant had received an injury in her ear. She made a complaint to her uncle Sh. Tara Chand. Finally, she came back to her parents and reported the matter to police.

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On completion of investigation, challan

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was filed against respondent and his parents. Prosecution examined total eight witnesses. PW-1 Dr. Sandeep Narula proved his opinion Ext. PW1/A. PW-2 Smt. Shobha Rani and PW-3 Rajinder Kumar were examined to prove the allegations against accused persons, being parents of the complainant. PW-4 Sh. Joginder Pal Kalia was the uncle of the complainant and was also examined to prove the prosecution case. PW-6 Dr. Sunil Sharma was examined as a Medical Expert and he proved his opinion Ext. PW-6/A. Complainant was examined as PW-7. PW-5 and PW-8 were the police witnesses. Respondent and other co-accused were examined under Section 313 of Cr.P.C. Three witnesses were examined in defence.

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Learned Trial Court convicted the

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respondent and acquitted his parents. Respondent was sentenced to undergo rigors imprisonment for two years and to pay a fine of Rs. 1500/- for offence under Section 498-A of IPC. In default of payment of

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fine, he was sentenced to further undergo simple imprisonment for one month. For commission of offence under Section 325 of IPC, respondent was sentenced to undergo rigors imprisonment for two years and to pay a fine of Rs. 2,000/-. In case of default of payment of fine, he was sentenced to further undergo simple imprisonment for one month. Both the substantive sentences were ordered to run concurrently.

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Respondent assailed the judgment of conviction and sentence order passed against him by learned Trial Court by filing an appeal before learned Sessions Judge, Una. The appeal of the respondent was assigned to learned Additional Sessions Judge, Una, which was accepted and respondent was acquitted of all charges.

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I have heard learned counsel for the parties and have also gone through the records of the case carefully.

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At the outset a notice is being taken of the fact that the parents of respondent herein were

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acquitted by learned trial court by holding that there were only general allegations against them. The findings so recorded by learned trial court remained un-assailed and hence attained finality. Neither the State nor the complainant challenged the acquittal of the other co-accused.

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Noticeably, the allegations with respect to demand of dowry, payments made to creditors after arranging the same from father of complainant etc. were commonly levelled against all the co-accused. That being so, acquittal of two of the co-accused and conviction of one on the same set of facts cannot be justified as far as offence under 498-A IPC was concerned.

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Now comes the allegation of physical assault on the complaint. Such incident had allegedly taken place at Delhi on 28.7.2002 and was attributed to the respondent only. Learned Appellate Court acquitted the respondent, on the grounds, firstly , that learned Trial Court had no jurisdiction to try the offence as the allegations made by complainant

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related to the occurrence that had taken place at Delhi, secondly , that the prosecution had failed to connect the injury suffered by the complainant with the alleged incident, thirdly , that the delay in lodging the FIR had remained unexplained and lastly , the evidence led by prosecution was held to be deficient in proving the charge against respondent beyond all reasonable doubts.

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Perusal of contents of FIR Ext.PW5/A reveal that the allegations levelled by the complainant were not confined to the incident that had taken place at Delhi on 28.07.2002. The allegations were of ill treatment of the complainant at the hands of accused persons in her matrimonial home also, which was situated within the jurisdiction of learned Trial Court. In her statement before the Court also, the complainant had made allegations against the accused persons regarding her ill treatment in her matrimonial home. Keeping in view the aforesaid material, the finding returned by learned Appellate

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Court in respect of the lack of jurisdiction with learned trial Court, cannot be sustained.

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The findings of learned Appellate Court regarding delay in lodging the FIR, being reason for acquitting the respondent, also cannot be sustained. The complainant was being allegedly tortured for dowry and was being maltreated by the accused persons after the marriage, which according to PW-1 had taken place in November, 2000. The allegations were of continuance ill treatment of the complainant. As per complaint lodged with the police, lastly, the complainant was tortured and gave beatings by respondent on 28.07.2002 at Delhi. She was brought back from Delhi by her parents on 30.07.2002. The complaint was lodged on 04.08.2002. Since, the allegations were against the husband of the complainant and his parents, it is, but natural that some time, must have been taken for deliberating on all the aspects of the matter, before lodging the FIR. The delay in making a complaint to the police cannot

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be said to be so inordinate that could be fatal for prosecution case.

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In order to prove the charges against the accused persons, a heavy burden was upon prosecution. The charges were to be proved beyond all reasonable doubts. However, on scanning the evidence of prosecution, it cannot be said that the prosecution has been successful in discharging its burden. One of the allegations against accused persons was that they had been coercing the complainant to fetch the money from his parents on the pretext that they had to discharge the debts incurred for her marriage. It was also alleged that many shopkeepers of the area used to come to the matrimonial house of complainant demanding their dues. Noticeably, none of such persons were either associated during investigation or cited as witnesses. The version of complainant has not found support from any independent source. Except for the parents and uncle of the complainant none else has been examined for the purposes of corroboration to

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the version of the complainant. Learned Trial Court had acquitted the parents of respondent by finding charges against them not proved. Learned Trial Court had not found any incriminating material against the parents of the respondent. The acquittal of the parents of respondent was not challenged. Respondent was also prosecuted with similar allegations and facts, therefore, the acquittal of other co-accused on same set of facts could not have entailed conviction of respondent atleast for offence under section 498-A IPC.

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Learned Trial Court had convicted the respondent only by holding that the incident of 28.07.2002 was proved against him. However, such finding also needs reappraisal as there was no corroboration to the version of the complainant. Learned Appellate Court has rightly held that from the medical evidence produced by examining PW-1 and PW-6, it was not proved that the injury found on the person of complainant was result of the alleged incident that had taken place on 28.07.2002. None

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of the medical experts had stated the duration of injury. It has also remained unexplained that why the medical examination of complainant was deferred and delayed for a long period when she had come back to her parents on 30.07.2002. As per PW-1 Dr. Sandeep Narula, complainant was thereafter examined by PW-6 on 05.08.2002. It is evident from Ext. PW-1/A that the complainant had not mentioned the date or the approximate period when she had received the injury. Similarly remained the position when she was examined by PW-6 as the notes recorded by said witness vide Ext. PW-6/A do not suggest so. 15. The independent corroboration to the version of complainant in cases involving crimes arising from matrimonial disputes becomes necessary as the false implication cannot be ruled out keeping in view the strained relations of the spouses. No investigation appears to have been made to collect corroborative evidence. Thus, I have no reason to differ with the findings of learned Appellate Court

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regarding lack of sufficient evidence to convict the respondent.

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Record further reveals that by way of Cr.MP No. 27 of 2022 filed on behalf of the respondent, certain documents were placed on record. One of such documents was the judgment passed by learned District Judge, Una on 23.12.2008 in HMA Case No. 15/2008, whereby the marriage between the respondent and complainant was ordered to be dissolved under Section 13 (b) of Hindu Marriage Act. A copy of statement of parties recorded by learned District Judge, Una in aforesaid proceedings was also placed on record. It become evident from the aforesaid documents that the respondent and complainant had not been able to maintain cordial relations and their matrimonial relations were strained.

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On 13.09.2021, certain instructions were placed on record by learned Additional Advocate General, which were received by him from Superintendent of Police, Una. The instructions, so

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placed on record reveal that the complainant had solemnized another marriage after her divorce with the respondent and respondent had also solemnized the second marriage.

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Keeping in view the entirety of facts and circumstances of the case, I concur with the findings returned by learned Appellate Court to the extent that prosecution evidence was not sufficient to convict the respondent.

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19 In result, the appeal filed by the State is dismissed.

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Pending miscellaneous application(s) if any, shall also stand disposed of.

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(Satyen Vaidya) 2^nd January, 2023 Judge (sushma)

State v. Pardeep Kumar

Case brief

What is this about?

What did the court decide?

State v. Pardeep Kumar

Case brief

What is this about?

What did the court decide?

What the court decided

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