Umesh Sharma v. Rajkumar & Ors.

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

2. To be referred to Reporter or not?

3. Whether the judgment should be reported in the Digest?Yes PRADEEP NANDRAJOG, J. (Oral) Crl.M.A.No.3284/2010 (Exemption) Allowed. Crl.M.A.No.3283/2010 (Condonation of Delay) Allowed. Delay condoned. Crl.L.P.No.97/2010 2010:DHC:1631-DB

1. Having heard learned counsel for the complainant and having perused the impugned decision as also having perused the certified copies of the testimonies of the various witnesses, we find no case being made out to grant leave to appeal.

2. The husband and the parents-in-law of deceased Sarika were charged of the offence punishable under Section 498A/304-B IPC.

3. Acquitting the accused the learned trial Judge has held that the suicide note Ex.P-3 of the deceased clearly recorded that nobody was responsible for her action. It has been further noted by the learned trial Judge that in their statement Ex.PW-3/A and PW-3/B recorded before the learned SDM, the parents of deceased Sarika, did not utter a word that their daughter was being harassed on account of any dowry demand. Not only that. In their statements the parents of Sarika clearly told the learned SDM that during the subsistence of her marriage, Sarika never complained to them of any dowry harassment. The third piece of evidence noted by the learned trial Judge is that the husband of Sarika had named Sarika as the nominee in every asset of his. Learned trial Judge has further noted that appearing as witnesses of the prosecution in the Court, for the first time, the parents of Sarika made allegation of dowry being demanded at the time of marriage. One dowry article demanded as per the parents of Sarika was a motor-cycle by the husband of Sarika. Learned trial Judge has noted that Sarika’s husband already possessed a motor-cycle, and thus formed an opinion that said allegation was exaggeration.

4. The learned trial judge has referred to the defence evidence and has discussed the same as under:- “The accused persons in their statement under Section 313 Cr.P.C. have specifically stated that they did not subject victim Sarika to cruelty nor they demanded any dowry article as alleged by the prosecution witnesses. The defence evidence produced by the accused persons by producing DW- 1 to DW-9 also shows that accused Raj Kumar made his deceased wife, the nominee in his Life Insurance Policy and accused Raj Kumar held a joint bank account with his wife in which his salary used to be deposited per month. There is also evidence that the accused Jai Narain, the father-in-law of the victim has never remained posted at a place where his son accused Raj Kumar was posted. This rules out the proximity between accused Leelawati and Jai Narain with victim Sarika to subject her to any cruelty or harassment. The accused persons have also produced defence evidence to show that at the marriage of daughter of accused Jai Narain he withdrew the amount of Rs.4,50,000/- from his Provident Fund Account. The defence of the accused persons also show that accused Raj Kumar had a motorcycle which rules out the probability of demand of motorcycle from victim Sarika or her parents by the accused Raj Kumar. The said withdrawals from Provident Fund Account by accused Jai Narain rules out the allegations of demand of any money on the occasion of marriage of daughter of accused Jai Narain from the parents of deceased Sarika. Therefore, keeping in view the burden to prove the defence upon the accused is comparatively light; though the prosecution is required to discharge the burden of proof of its case beyond reasonable doubt, the accused persons can establish their defence by producing evidence which is acceptable on preponderance of probabilities, therefore, it can be said that neither the prosecution evidence is convincing enough to establish subjecting the victim Sarika to cruelty, harassment or the demand of dowry by the accused persons and defence of the accused persons also rules out this possibility. Savitri Devi’s case (supra), Sangeeta Kalra’s case (supra), Neera Singh’s case (supra), Raman Kumar’s case (supra) and Sohel Mehaboob Shaikh’s case (supra) are distinguishable on facts.”

5. An independent witness PW-8 the landlord of accused Rajkumar, Sarika’s husband, where Sarika and her husband resided had deposed against the accused. The learned trial Judge has, in interim page 30 of the impugned decision, dealt with the testimony of PW-8 and has highlighted the improvements made by said witness vis-à-vis the statement recorded by the Investigating Officer during investigation.

6. Suffice would it be to state that where the view taken by the learned trial Judge on the evidence led is a probable view, merely because another view is possible on the same evidence, would not justify the Appellate Court to reappreciate the evidence to take the other view.

7. Of course, it is in the domain of the Appellate Court to, while re-appreciating the evidence, see whether material evidence and circumstances have been ignored or whether inconsequential circumstances have been given prominence more due than what was required. Lastly, if it is found that the conclusion drawn is so illogical that no person would draw the same, the Appellate Court can re-look into the matter.

8. Finding none of the aforesaid being attracted, we hold that no case is made out to grant leave to appeal against the impugned decision, which we note is a well considered decision.

9. This leave petition is dismissed.

PRADEEP NANDRAJOG, J SURESH KAIT, J MARCH 19, 2010 ‘mr’