Court: High Court Of Allahabad
Bench: JUSTICE Harsh Kumar
Priyanka Kulshrestha Vs. State of U.P. and Ors. On 09 February 2017
Law Point:
Section 498 – No evidence on record to prove that complainant suffered from any mental and physical cruelty in the hands of accused – Accused rightly acquitted.
JUDGEMENT
1. Heard Sri Madan Mohan, learned Counsel for the applicant-appellant on application for leave to file appeal. Learned Counsel for the complainant-appellant’ contended that the marriage between complainant and accused-respondent did took place on 4.12.2007 in which a sum of ` 3,50,000/- was spent by her father and when the complainant reached her matrimonial house she was pressurized to ask her father to give a 1-10 car in dowry and when she showed inability for the same, she was physically and cruelly treated by the accused, who purchased the car by selling her jewellery; that a monthly instalment of ` 8,000/- was paid to accused and she was ousted from the matrimonial house; that the accused is a Branch Manager in Net Ambit Company in Delhi and earns ` 45,000/- per month; that the accused had developed illicit relationship with one Pooja Singh and found the complainant the accused and Pooja Singh in objectionable stage; that in order to prove her case, the complainant produced herself and her brother Vikrant Kulshrestha as P.W.-1 & P.W.-2 respectively; that it was proved from the evidence on record that the complainant was treated with cruelty in connection with non-fulfilment of demand of dowry and since the accused-respondent, the husband of complainant-appellant was in illicit relationship with Pooja Singh and has also filed Divorce Petition against her, it is sufficient to hold mental cruelty having been caused by the accused-respondent; that series of litigation is pending between the parties and the accused-respondent has not even made payment of maintenance amount granted by the Magistrate in proceedings under Domestic Violence Act which also amounts to cruelty; that learned Trial Court has acted wrongly in drawing adverse inference against the complainant-appellant for not producing her father in evidence while he was not a material witness; that evidence of prosecution cannot be considered on the basis of number of witnesses rather it is to be considered on the basis of quality of evidence; that the learned Trial Court has acted wrongly in relying on the compromise dated 23.10.2011 between the parties while this compromise was a broken compromise and was not complied or obeyed with by the accused and his family members; that the learned Trial Court has acted wrongly in holding that the charges under section 498-A I.P.C. have not been proved against the accused and consequently acted wrongly in acquitting the accused-respondent from the charges under section 498-A I.P.C; that the appellant has every hope of success in appeal.
Per contra, learned A.G.A. supported the impugned judgment and contended that the appeal has no force.
2. Upon hearing learned Counsel for the parties and perusal of record, I find that as per averments made in the complaint the marriage of complainant with respondent No. 2 was solemnized on 4.12.2007 at an expenses of ` 3,50,000/- and after the marriage the demand of 1-10 car as dowry is alleged to have been made. It has also been stated in the complaint that on showing inability of her father to fulfil the demand of dowry, the complainant was physically and cruelly treated by the accused, who purchased the car by selling her jewellery and a monthly instalment of ` 8,000/- was paid to accused by her father. The Trial Court has discussed and analysed the evidence on record in detail and has observed that the registered letters, which were allegedly sent to Superintendent of Police have not been proved and the allegation in respect of purchase of car by sale of her jewellery and regarding the alleged demand as dowry and payment of instalment @ ` 8,000/- per month are also self-contradictory. In the complaint states that the car was purchased by selling her jewellery while in her statement on oath the complainant has stated that her jewellery was pawned with Muthoot Finance Company for a sum of ` 1,25,000/- and that the car was purchased in July, 2009 while her ornaments were pawned after 6-7 months from July, 2009. It is also pertinent to mention that Trial Court has noticed that while the car is alleged to have been got financed by father of first informant, the complainant has stated that her father used to give an instalment of ` 8,000/- per month to the accused-respondent while her brother P.W.-2 has stated that the father used to pay ` 8,000/- per month to the complainant-appellant and she used to withdraw it through ATM and pay to the accused-respondent, which the complainant herself does not say and there is material contradiction on this point.
3. Moreover, undisputedly the father of complainant who is alleged to have financed the 1-10 car has not been produced and there is nothing on record to show as to whether the car was financed by father of complainant and from which bank or finance company. It is also pertinent to mention that in case of car having been financed by some bank or finance company, the monthly instalment would have been payable to the concerned bank ordinance company from which the finance was obtained and there can be no reason for justification for making the payment of instalment to complainant or the accused-respondent. In any case father of complainant/appellant was the best witness to prove that he got the 1-10 car financed in favour of accused-respondent and if at all he used to pay. ` 8,000/- per month to accused-respondent or complainant/appellant. The father of complainant/appellant is alive and no reason has been assigned for not producing him in the witness box. It is settled principle of law that if a party possesses best evidence/witness on any point but does not produce the same, adverse inference will be drawn against him, that if such witness would have been produced, he would have deposed against the interests of such party. The complainant in support of her allegations regarding illicit relationship between the accused-respondent and Pooja Singh has stated that she had seen her husband in objectionable condition with Pooja Singh with the doors of her bed-room half open and half closed which is also highly improbable. Undisputedly there is no injury report on record to corroborate the alleged physical cruelty, if any, and as far as the mental cruelty as contended by learned Counsel for the complainant-appellant either on account of illicit relationship of accused-respondent with Pooja Singh or on account of filing of divorce petition by the accused-respondent or for non-payment of maintenance allowance awarded by the Magistrate in case under Domestic Violence Act, I find that such cruelty if at all may not be considered to be a cruelty in connection with non-fulfilment of demand of dowry and so the Trial Court has not committed any error or mistake of fact and law in coming to the conclusion that the charges under section 498-A I.P.C. have not been proved.
4. It is settled principle of law as held by Hon’ble the Supreme Court in the case of K. Prakashan v. P.K. Surenderan MANU/SC/8009/2007 : 2008 (63) ACC 810 (SC), “When two views are possible, Appellate Court should not reverse the Judgment of acquittal merely because the other view was possible. When Judgment of Trial Court was neither perverse, nor suffered from any legal infirmity or non consideration/misappropriation of evidence on record, reversal thereof by High Court was not justified”.
5. In view of discussions made above, I have come to the conclusion that the learned Counsel for the applicant-appellant has failed to show that the learned Trial Court has not considered any evidence on record or has misread the evidence on record or to show any legal infirmities, incorrectness or perversity in the finding given in the impugned order of acquittal and there is no sufficient ground for interfering with or setting it aside the acquittal order and substituting it with conviction order. The application under section 378 (4) Cr.P.C. has no force and is liable to be dismissed. The application under section 378 (4) Cr.P.C. for leave to file appeal is dismissed accordingly and the appeal also stands dismissed.
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