Delhi District Court
State vs . 1. Subhash Sharma S/O Sh. Hans Raj on 16 January, 2012
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE - 01 : North East /
KARKARDOOMA COURTS: DELHI.
Case ID Number. 02402R0179512009
Sessions Case No. 50/2009
Assigned to Sessions. 10.07.2009
Arguments heard on 07.01.2012
Date of judgment 16.01.2012
FIR No. 87/2008
State Vs. 1. Subhash Sharma s/o Sh. Hans Raj
Sharma, (released on bond)
2. Nitesh Sharma @ Sonu s/o Sh.
Subhash Chand, (discharged)
3. Kumari Santosh Sharma d/o Sh.
Subash Sharma, (discharged)
4. Umesh Kumar Sharma s/o Sh.
Subhash Sharma,
5. Smt. Kamlesh Sharma w/o Sh.
Subhash Sharma,
All r/o J266, Gali No.3, Kartar
Nagar, Usmanpur, Delhi.
Police Station New Usmanpur
Under Section 498A/304B/34 IPC
SC No.50/2009
State Vs. Subhash Sharma and others 1/45
JUDGMENT
1. Station House Officer of Police Station New Usmanpur had filed a challan vide FIR No.87/2008 dated 10.04.2008 u/s 498A/304B/34 IPC for the prosecution of accused persons namely Subhash Sharma, Nitesh Sharma @ Sonu, Kumari Santosh Sharma, Umesh Kumar Sharma and Smt. Kamlesh Sharma in the court of Ld. MM as deceased Sarvesh was married with accused Umesh Sharma and her death had taken place within seven years of her marriage. Accordingly, Ld. Metropolitan Magistrate after compliance of section 207 Cr. P.C. committed this case for trial before this court.
2. In brief, facts of the case are that on 10.04.2008 a DD No.13A was recorded at Police Station New Usmanpur regarding consuming of unknown poison by one lady Sarvesh at House No.J266, Gali No.03, Kartar Nagar, Delhi and she was got admitted in St. Stephen's Hospital and expired during medical treatment and said DD was marked to SI Mohd. Faiyaz for investigation. On receipt of this DD, SI Mohd. Faiyaz along with Ct. Sangram reached at St. Stephen's Hospital and collected MLC Ex.PW14/A of Sarvesh. Since the period of marriage was less than seven years, SI Mohd. Faiyaz had taken Shyam Babucomplainant and Smt. Guddi Devi (parents of deceased) to the Office of SDM, Seelampur to get recorded their statement by SDM. Sh. A.K. Pasi, Executive Magistrate, had recorded statement of Shyam Babu, father of deceased Ex.PW1/A and directed SHO PS New Usmanpur to take action as per law. On the basis of said statement of FIR Ex. PW6/C u/s 498A/304B/34 IPC was recorded at police station New Usmanpur. SC No.50/2009
State Vs. Subhash Sharma and others 2/45 On 10.04.2008 dead body of deceased Sarvesh was shifted from St. Stephen's Hospital to mortuary of GTB Hospital. IO had completed inquest proceedings by filling inquest form Ex.PW10/G, filling up request for postmortem Ex.PW10/H and recorded statement of father of deceased Ex.PW1/B and Narender Kumar Ex.PW7/A regarding identification of dead body of deceased. After postmortem of the deceased, the dead body was handed over to the relatives of deceased. IO had prepared the site plan of the place of occurrence vide Ex.PW10/B. During the course of investigation, accused persons were arrested for the offences u/s 498A/ 304B/34 IPC.
CHARGE:
3. On the basis of material available on record ld. predecessor of this court framed a charge vide order dated 30.09.2009 against accused persons namely Umesh Kumar and Smt. Kamlesh Sharma @ Kantho Devi for the offences punishable u/s 498A/304B/34 IPC to which accused persons did not plead guilty and claimed trial and accused persons namely Kumari Santosh and Nitesh Kumar were discharged and accused Subhash Sharma was released on furnishing personal bond.
PROSECUTION WITNESSES:
4. In order to prove its case prosecution has examined 18 witnesses namely PW1 Shyam Babu, Complainant, PW2 Ct. Deepak, PW3 HC Abhishek, PW4 Guddi Devi @ Munni Devi, PW5 SI Girish Gothwal, PW6 W/ASI Suman Rana, PW7 SC No.50/2009 State Vs. Subhash Sharma and others 3/45 Narender Kumar, PW8 Sh. Ishwar Dayal Sharma, PW9 Ajay Kumar, PW10 Inspector Mussarat Khan, PW11 Brajender, PW12 Sh. A.K. Passi (Executive Magistrate), PW13 Ct. Sangram Singh, PW14 Dr. Vijay Kataria, PW15 Inspector Sh. Sushil Chandra Sharma, PW16 SI Mohd. Faiyaz, PW17 Dr. Sumit Tellewar and PW18 Inspector Ajay Kumar Singh.
5. PW1 Shyam Babu, father of deceased is a material witness being complainant. On his statement present case had been registered. This witness has deposed that his daughter Sarvesh was married to Umesh according to Hindu rites in June'2002 and his daughter came back to his house after 1015 days of her marriage and she told him that Subhash, Kanto Devi, Umesh - her husband, Santosh and Sonu used to harass her for not bringing adequate dowry. Thereafter, some people had intervened and settled the matter. This witness has further deposed that in year 2005, his daughter came back to his house and she remained with them for about 18 months and accused Subhash and Kanto told him on telephone that they would take his daughter back if he pay them Rs.50,000/. This witness had borrowed Rs.50,000/ from his cousin brother, Vijender and handed over the same to Subhash, Kanto and Umesh at their house in the presence of Vijender.
6. This witness has further deposed that in the marriage of his nephew Abhey, his daughter was not allowed to join the marriage and no other family members of their family attended the marriage. During her stay at her matrimonial home, she was not treated properly and was harassed, taunted and beaten by Subhash, Kanto, SC No.50/2009 State Vs. Subhash Sharma and others 4/45 Umesh and Santosh.
7. On 09.04.2008 a child called this witness on telephone and told that Santosh had told Sarvesh that "aaj teri khair nahi, shyam ko papa aur Umesh ko Ghar aane do, wo tumhey sabak sikhange".
8. This witness has further deposed that on 10.04.2008 at about 10:00 a.m. his wife received call from Umesh who told that Sarvesh had taken something. This witness had made a call to the residence of Sarvesh where Santosh picked up the telephone and she told him that his daughter has finished and if he want to see her he should come otherwise she would be thrown. Thereafter, this witness came to know through Subhash on telephone that his daughter had been taken to St. Stephen Hospital and they reached at St. Stephen Hospital and found his daughter lying dead in the hospital.
9. This witness has further deposed that Subhash and Umesh started beating him and they gave slap to him when he asked them what he had done to his daughter.
10.This witness has proved his statement Ex.PW1/A which was recorded by SDM. This witness has identified the dead body of his daughter, Sarvesh vide memo Ex.PW1/B and handed over memo of the dead body of her daughter vide memo mark 'A'.
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State Vs. Subhash Sharma and others 5/45
11.This witness was cross examined by ld. defence counsel at length. His statement Ex.PW1/A was confronted by ld. defence counsel on various material facts.
12.PW2 Ct. Deepak. This witness had taken viscera box and one sample seal from the malkhana and deposit the same at FSL Rohini, Delhi.
13.PW3 HC Abhishek. This witness had taken two sealed parcels containing exhibits along with one sample seal, forwarding letter and two copies of RC No.107/21 and deposited at the FSL Rohini for analysis at the request of Inspector A.K. Singh and handed over receipt to aforesaid Inspector.
14.PW4 Guddi Devi @ Munni Devi, mother of deceased is a hearsay witness. This witness has deposed that accused Umesh had demanded Rs.1 lac on 9th day but she does not remember month and year and it was was told by some person on telephone before one day of incident. This witness has further deposed that Kamlesh, Santosh, Subhash and accused Umesh used to harass and give beatings to her daughter on demand of dowry and accused persons had not been provided food to her daughter, this fact was also told on telephone by some girl. This witness has further deposed that they had received phone of unknown person about the incident that her daughter had consumed something. This witness was cross examined by ld. APP for State after declaring her hostile. In her cross examination this witness has admitted all the suggestions put by Ld. APP for the State. This witness was cross examined by ld. defence counsel at length. SC No.50/2009
State Vs. Subhash Sharma and others 6/45
15.PW5 SI Girish Gothwal. This witness had arrested accused Umesh with the
permission of Ld. MM vide arrest memo Ex.PW5/A and personal search memo Ex.PW5/B.
16.On 28.05.2008 this witness had sent one sealed parcel containing viscera along with sample seal and relevant documents to FSL for analysis through Ct. Deepak vide RC No.51/21 mark X. This witness had also formally arrested Smt. Kamlesh Sharma vide arrest memo Ex.PW5/C and personal search memo Ex.PW5/D.
17.PW6 W/ASI Suman Rana is a formal witness being duty officer. This is the witness of recording of DD entry and FIR. This witness has proved DD entry vide Ex.PW6/A and copy of FIR Ex.PW6/C.
18.PW7 Narender Kumar is a cousin brother of deceased Sarvesh. This witness had identified dead body of deceased Sarvesh in the mortuary of GTB Hospital in the presence of Shyam Babu vide Ex.PW7/A and he had received dead body after postmortem for cremation against receipt Ex.PW7/B. This witness has deposed that deceased Sarvesh was married to accused Umesh Kumar Sharma according to Hindu Rites and Customs in the month of June'2002.
19.This witness has deposed that after one and half months from the marriage of deceased he had gone to her matrimonial house but accused Umesh Sharma did not allow him to meet with his cousin sister (deceased). This witness has further SC No.50/2009 State Vs. Subhash Sharma and others 7/45 deposed that deceased had told him and other family members that family members of accused had not been providing her fresh food and Santosh (Nanad) of deceased never allowed her to talk with her parents on telephone and she used to abuse filthy language against her. This witness has further deposed that accused Umesh had demanded Rs.50,000/ from his uncle, father of deceased on account of tuition fees for brotherinlaw of deceased.
20.This witness was cross examined by Ld. APP for the State. In his cross examination, this witness admits all the suggestions put by Ld. APP for the State.
21.This witness was cross examined by ld. defence counsel at length. In his cross examination, statement Ex.PW7/DA of this witness was confronted by ld. defence counsel.
22.PW8 Sh. Ishwar Dayal Sharma is uncle of deceased Smt. Sarvesh. This is hearsay witness. This witness has deposed that after about 45 months from the marriage of Sarvesh it was told to him by complainant that accused Subhash had been harassing her daughter for dowry, this witness had put some social pressures upon accused Subhash Sharma not to harass Smt. Sarvesh but no change came into the behaviour of accused Subhash Sharma.
23.This witness has deposed that complainant had told to him that he had given a sum of Rs.50,000/ to Subhash Sharma. This witness has further deposed that he and SC No.50/2009 State Vs. Subhash Sharma and others 8/45 Subhash Sharma had attended the marriage of son of Sh. Ram Prakash, Sarvesh had also attend the aforesaid marriage, she had some talks with her wife in the said marriage. This witness has further deposed that Santosh, sisterinlaw of Smt. Sarvesh came and pushed Smt. Sarvesh and took her to her matrimonial house by maltreating with her.
24.This witness has further deposed that when he along with relative reached at the matrimonial house of Sarvesh to deliver the marriage card of Subhash, at that time he found that Sarvesh was being beaten by her motherinlaw, Smt. Kantho Devi and sisterinlaw, Smt. Santosh. This witness had advised complainant to make complaint before CAW Cell against the inlaws of his daughter. This witness was cross examined by ld. APP for the State after declaring him hostile. In his cross examination, this witness has supported the case of prosecution.
25.This witness was cross examined by ld. Defence counsel. His statement Ex.PW8/DA was confronted by Ld. Defence counsel. In his cross examination, this witness has deposed that he had not made any complaint to police regarding cruelty and harassment by inlaws of Sarvesh. This witness has further deposed that he cannot tell date, month and year when Shyam Babu and his daughter had met him and told him about the harassment, torture and demand of dowry by accused persons.
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State Vs. Subhash Sharma and others 9/45
26.PW9 Ajay Kumar is the cousin of deceased Sarvesh. This witness has deposed
that his sister used to tell him and his family members that she was being harassed for the demand of dowry i.e. cash and four wheeler vehicle by her husband (Umesh Sharma), sisterinlaw (Nanad) Kamlesh, motherinlaw Smt. Kantho Devi, father inlaw Subhash Sharma and brotherinlaw Sonu and she had been beaten by Smt. Kantho Devi, Umesh Sharma, Kamlesh and Sonu on the account of dowry, motherinlaw Kantho Devi and sisterinlaw had not been providing her food. This witness has further deposed that in the year 2007 accused Subhash Sharma (since deceased) had demanded Rs.50,000/ on account of expenses to send his son Bablu to foreign country. This witness was cross examined by Ld. APP for the State after declaring him hostile. In his cross examination by ld. APP for the State, this witness has supported the case of prosecution.
27.In his cross examination by ld. defence counsel, his statement Ex.PW9/DA was confronted on various material facts.
28.PW10 Inspector Mussarat Khan is a material witness being 2nd I.O. of the present case. This witness has deposed that on 10.04.2008 rukka of present case Ex.PW6/B and copy of FIR Ex.PW6/C had been delivered to him by Ct. Sangram for investigation, earlier present matter was attended by SI Mohd. Fayyaz. This witness had reached reached in St. Stephen Hospital where dead body of Sarvesh was lying and SI Mohd. Fayyaz had produced one sealed parcel containing with gastric lavage along with sample seal which was seized by him vide seizure memo SC No.50/2009 State Vs. Subhash Sharma and others 10/45 Ex.PW10/A. This witness had recorded statement of mother of deceased, Smt. Guddi Devi, cousin of deceased, Narender Kumar supplementary statement of father of deceased, Sh. Shyam Babu. This witness had prepared site plan Ex.PW10/B of place of occurrence at the instance of complainant.
29.This witness has proved arrest memo Ex.PW10/C and personal search memo Ex.PW10/D of accused Subhash Sharma and arrest memo Ex.PW10/E and personal search memo Ex.PW10/F of accused Nitesh Sharma. This witness has completed inquest proceedings by filling form Ex.PW10/G by recording statement Ex.PW7/A of Narender Kumar and statement of PW Shyam Babu Ex.PW1/B in connection of identification of dead body, by filling up request for postmortem Ex.PW10/H.
30.This witness had collected postmortem report from GTB Hospital and dead body was handed over to her legal heirs against receipt already Ex.PW7/B. Ct. Sangram had produced two sealed parcels containing viscera material and clothes of deceased along with sample seal which were seized vide seizure memo Ex.PW10/I. This witness was cross examined by ld. defence counsel.
31.PW11 Vijender is cousin of complainant Shyam Babu. This witness has deposed that on 22.06.2002 marriage of deceased Sarvesh was solemnized with accused Umesh and Shyam Babu had delivered a sum of Rs. 1 lac to accused Umesh and some other household articles i.e. refrigerator, T.V., furniture, some utensils and SC No.50/2009 State Vs. Subhash Sharma and others 11/45 clothes etc. were also delivered on the occasion of sagai to parents of accused Umesh.
32.This witness has further deposed that a motorcycle was delivered to accused Umesh by Shyam Babu in the night from a showroom which was at the first floor of his factory. This witness has further deposed that after about twothree months of her marriage deceased Sarvesh had come to her parental house and told them that her motherinlaw Smt. Kantho Devi, sisterinlaw Santosh, fatherinlaw Subhash, her husband Umesh and her brotherinlaw Nitesh used to harass her for less dowry and they used to taunt to remarry accused Umesh with some other girl to get more dowry articles.
33.This witness was called by Shyam Babu in the month of May'2005 at his house where Sarvesh was present and it came into his notice from Sarvesh that she was beaten by accused Smt. Kantho Devi, Santosh and Umesh.
34.In the month of January' 2007 this witness was called by Shyam Babu at his house and thereafter this witness accompanied Shyam Babu at the matrimonial house of Sarvesh to talk with one Jai Mohan, soninlaw of Subhash. In the presence of this witness, accused Kantho Devi had stated that her son is going abroad and she needs a sum of Rs.50,000/ and she demanded Rs.50,000/ from Shyam Babu. SC No.50/2009
State Vs. Subhash Sharma and others 12/45
35.On 23.01.2007 this witness had delivered Rs.50,000/ to Shyam Babu and he had delivered the same to Subhash at his house for the study of his son. This witness has proved xerox copy of voucher mark 'X' and xerox copy of account ledger mark 'Y' which were seized by the police vide seizure memo Ex.PW11/A.
36.This witness received a telephone call of Shyam Babu on 10.04.2008 that some incident had taken palace with her daughter in her matrimonial house and again received telephone call from Shyam Babu after about 1 hour that his daughter had been killed and instructed him to reach at St. Stephen Hospital. Thereafter, this witness reached at St. Stephen Hospital where Subhash and Shyam Babu were present. This witness had stated to Subhash that he had not done good with Sarvesh and Subhash replied him that "Ladkiyan sabki marti hain Sarvesh mar gayi to kya hua."
37.In his cross examination by ld. Defence counsel, this witness has deposed that he had stated to the police in his statement that three months prior to the engagement there was a settlement for payment of Rs. 1 lac between father of deceased and father of accused Umesh. This witness was confronted with statement Ex.PW11/DA where it is not so recorded.
38.This witness has further deposed that he had stated to the police in his statement that father of accused Umesh had told them that accused Umesh was demanding a motorcycle. This witness was confronted with statement Ex.PW11/DA where it is SC No.50/2009 State Vs. Subhash Sharma and others 13/45 not so recorded.
39.PW12 Sh. A.K. Passi. This witness was posted as Executive Magistrate at Seelampur, Delhi on 10.04.2008. This witness has recorded statement of complainant Shyam Babu vide Ex.PW1/A, attested his statement Ex.PW12/A, made endorsement in connection of recording statement of complainant at encircled portion vide Ex.PW12/B and also made endorsement Ex.PW12/C addressing to SHO, PS New Usmanpur, Delhi, to take action as per the law. In his presence inquest proceedings were completed by Inspector Mussarrat Khan on his dictation and direction.
40.In his cross examination by Ld. Defence counsel, this witness admits that he had not given any written direction to Inspector Mussarrat Khan to complete the inquest proceedings.
41.PW13 Ct. Sangram Singh, This witness has accompanied SI Faiyaz Ahmad to St. Stephens Hospital where SI Faiyaz Ahmad had collected the MLC mark 'X' of deceased Smt. Sarvesh. This witness had taken the dead body of deceased to mortuary of GTB Hospital for postmortem and preserved the dead body there. In his presence inquest proceedings were completed by Executive Magistrate. After the postmortem, GTB Hospital Staff had handed over two sealed parcels containing clothes of deceased and viscera material along with one sample seal to him which he handed over the same to IO Inspector Mussarrat Khan and he seized SC No.50/2009 State Vs. Subhash Sharma and others 14/45 the same vide seizure memo Ex.PW10/I.
42.PW14 Dr. Vijay Kataria, CMO, St. Stephen's Hospital. This witness has deposed that on 10.04.2008 at 1:00 p.m. patient Sarvesh brought by her husband Umesh with alleged history of having consumed insecticides tablets at home and patient Sarvesh was medically examined by him vide MLC Ex.PW14/A.
43.PW15 Inspector Sh. Sushil Chandra Sharma. This witness has made endorsement Ex.PW15/A on the statement of Sh. Shyam Babu Ex.PW1/A recorded by Sh. A.K. Passi, Executive Magistrate and got the FIR Ex.PW6/C registered.
44.PW16, S.I. Mohd. Faiyaz is a material witness being 1st I.O. of the present case. On 10.04.2008, DD No.13A, already Ex.PW6/A was assigned to him which was in connection of consuming of unknown poison by one lady namely Sarvesh at H.No. J266, Gali No.03, Kartar Nagar, Delhi, and she was got admitted in St. Stephen's Hospital and expired during medical treatment. This witness in pursuance of aforesaid DD along with Ct. Sangram reached at St. Stephen's Hospital, Delhi, where, he had collected MLC Ex.PW14/A of Sarvesh. Thereafter, this witness had taken Shyam Babu and Smt. Guddi Devi (parents of deceased) to the office of SDM, Seelampur, Delhi to get their statement recorded by him, Executive Magistrate Sh. A.K. Passi, recorded the statement of PW Shyam Babu Ex.PW1/A and made endorsement to take action into the matter as per the law addressing to SHO. Inspector Sushil Chand Sharma, the then SHO made SC No.50/2009 State Vs. Subhash Sharma and others 15/45 endorsement Ex.PW15/A on the basis of statement of PW Shyam Babu to get FIR of present case registered for offence u/s 498A/304B/34 IPC. Thereafter, rukka was sent to Duty officer/ W/ASI Suman Rana who got recorded FIR Ex.PW6/C.
45.This witness had received one sealed parcel containing gastric lavage along with sample seal from Dr. Vijay Kataria of St. Stephen's Hospital, which were seized by him vide seizure memo Ex.PW10/A. Thereafter, this witness had joined the investigation of this case with I.O./Inspector Mussarrat Khan and handed over copy of DD No.13A and seizure memo Ex.PW10/A. This witness has proved arrest papers of aforesaid accused persons Ex.PW5/E and Ex.PW5/F (of Nitesh) and arrest memo Ex.PW10/C and Ex.PW10/D (of accused Subhash).
46.This witness was cross examined by Ld. Defence counsel. In his cross examination, this witness has deposed that Executive Magistrate had recorded statement of PW Shyam Babu in his own handwriting and he cannot tell as to why statement of Smt. Guddi Devi was not recorded by the Executive Magistrate. This witness denied that statement of PW Shyam Babu, Ex.PW1/A was prepared by him and signature and seal of Executive Magistrate were obtained thereon at a later stage.
47.PW17 Dr. Sumit Tellewar. This witness has conducted postmortem examination on dead body of Smt. Sarvesh @ Monu and proved postmortem report vide Ex.PW17/A. SC No.50/2009 State Vs. Subhash Sharma and others 16/45
48.PW18 Inspector Ajay Kumar is a material witness being I.O. On 18.04.2008 investigation of the present case was assigned to him. This witness had interrogated complainant Shyam Babu and recorded his supplementary statement. On 23.04.2008 this witness had seized computer generated copy of document in connection of voucher already mark as X, Y and Z in connection of Rs.50,000/ vide seizure memo Ex.PW11/A on being produced by PW Vijender, photocopy of marriage card of deceased and accused Umesh Sharma mark P1 and eight photocopies of marriage/engagement Mark P2 to P9 on being produced by complainant. This witness had obtained NBWs against accused Dinesh and Kamlesh.
49.This witness has deposed that on 05.06.2008 this case was again assigned to him. This witness had sent sealed parcel of gastric lavage to FSL for analysis through Ct. Abhishek along with relevant documents.
50.This witness has proved arrest memo Ex.PW18/A of accused Kumari Santosh Sharma and expert opinions Ex.PW17/B and Ex.PW17/C.
51.In his cross examination by ld. Defence counsel, this witness has deposed that he had not verified the fact of transaction pertaining to Rs.50,000/ in account/register of PW Vijender.
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State Vs. Subhash Sharma and others 17/45 STATEMENT OF ACCUSED U/S 313 CR.P.C.:
52.After prosecution evidence, statement of accused persons u/s 313 Cr.P.C. was recorded wherein all the accused persons denied all the allegations and evidences and circumstances put to them. They had deposed that Smt. Sarvesh was not having any child and she was under depression due to her incapability of fertility and they and their family had never made dowry demand at any point of time, not harassed, tortured and given beatings to her. They had further deposed that on 23.01.2007 they had gone to attend the marriage of of Devki Nanda s/o Ram Babu Sharma at Village Bitauli, District Agra, U.P. Complainant had not delivered any type of cash to them and their family at any point of time after marriage of Smt. Sarvesh. Sarvesh died due to depression of her infertility by consuming some unknown substance. Accused persons had preferred to lead defence evidence and examined Ram Babu Sharma as DW1 and Sh. Jai Prakash Sharma as DW2.
53.DW1 Sh. Ram Babu Sharma has deposed that he had attended the marriage of accused Umesh Sharma and no hurdle had taken place in the marriage of accused Umesh Sharma. This witness has proved marriage card of his son vide Ex.DW1/A, photographs Ex.PW1/B1 to B12 and two CDs Ex.DW1/C1 to C2.
54.DW2 Sh. Jai Prakash Sharma. during his examination this witness has deposed that all the accused persons and complainant and his family members are known to him and no complaint was made to him from the side of complainant regarding demand of dowry and harassment of accused persons and no panchayat was called SC No.50/2009 State Vs. Subhash Sharma and others 18/45 by PW Ishwar Dayal Sharma in connection of settlement regarding vidai and not to harass deceased Sarvesh at Gandhi Nagar, Delhi or at any other place.
55. After examination of DW's, D.E. was closed.
ARGUMENTS:
56.Ld. APP for state, Sh. Zenual Abedeen argued that on the statement of PW1 Shyam Babu, father of deceased Ex.PW1/A before the SDM present FIR Ex.PW6/C u/s 498A/304B IPC was registered at PS New Usmanpur. Accordingly, five accused persons namely Subhash Sharma, Nitesh Sharma @ Sonu, Kumari Santosh Sharma, Umesh Kumar Sharma and Smt. Kamlesh Sharma were arrested and booked for the offences u/s 498A/304B/34 IPC. Ld. APP for State submits that statement of father of deceased is sufficient to prove the case of prosecution. Two accused persons have been discharged and accused Subhash has been released and present two accused persons namely Umesh Kumar and Subhash Sharma are facing trial. Ld. APP for the State further submits that since the statement of father of deceased support the case of prosecution, therefore, the present case is squarely covered under the ingredients of 498A/304B/34 IPC.
57.Ld. APP for the State further argued that deceased was married with accused Umesh on 22.06.2002 and date of incident is i.e. 10.04.2008 within the seven years of marriage. On the day of incident, poisoning substances were consumed by deceased Sarvesh and she was admitted at about 12:00 noon on 10.04.2008 at St. SC No.50/2009 State Vs. Subhash Sharma and others 19/45 Stephen Hospital and died on 10.04.2008 at about 1:45 p.m.
58.Ld. APP for the State further argued that PW1 Shyam Babu, father of deceased, PW4 Guddi Devi, mother of deceased, PW7 Narender Kumar, cousin of deceased, PW8 Ishwar, uncle of deceased, PW9 Ajay, cousin of deceased and PW11 Vijender, cousin of deceased are the material witnesses out of 18 PWs. PW2 Ct. Deepak is a formal witness. PW3 HC Abhishek is also a formal witness who had taken exhibits to FSL Rohini. PW5 SI Girish Kumar is a part I.O. who had arrested discharged accused persons. PW6 W/ASI Suman Rana is formal witness. PW10 Inspector Musharrat Khan is second I.O. PW12 Sh. A.K. Passi, SDM is a material witness who had recorded statement of complainant and given direction for recording of FIR. PW13 Ct. Sangram Singh accompanied investigation with 1st I.O. PW14 Dr. Vijay Kataria is the witness of preparing MLC of deceased Sarvesh and sealing of gastric lavage. PW15 Inspector Sushil Chandra Sharma is a witness of formal nature, he had handed over statement of complainant to 1st I.O. to take action into the matter. PW16 SI Mohd. Faiyaz is the witness of receiving of gastric lavage and arrest of two accused persons. PW17 Dr. Sumit Tellewar had conducted postmortem on the dead body of deceased Sarvesh. PW18 Inspector Ajay Kumar had taken formal steps to arrest of some accused persons.
59.Ld. APP for the State further argued that PW1 Shyam Babu, father of deceased Sarvesh is a important witness who had deposed regarding continuous harassment for not bringing adequate dowry and given beatings to deceased Sarvesh. SC No.50/2009
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60.Ld. APP for the State further argued that there is a demand of Rs.50,000/ from two persons namely Kantho Devi and Subhash on telephone from complainant.
61.Ld. APP for the State admitted that there is no dying declaration in this case.
62.Ld. APP for the State further argued that PW4 Guddi Devi, mother of deceased had deposed on the same footings as deposed by PW1 Shyam Babu. PW4 Guddi Devi has deposed that accused Umesh had demanded Rs.1 lac on 9th day but she does not remember month and year.
63.Ld. APP for the State further argued that PW7, PW8, PW9 and PW11 have deposed on similar footings as deposed by PW1 Shyam Babu.
64.Ld. APP for the State further argued that FSL report of Gastric Lavage suggest aluminum phosphide was consumed by deceased.
65.Ld. APP for State further argued that statements of PW1 and some other PWs are sufficient to convict the accused persons for offences charged as prosecution has proved its case beyond reasonable doubt. On these grounds, Ld. APP for the State has submitted that there are sufficient evidence to convict the all accused persons.
66.On the other hand Ld. counsel for accused persons argued that complaint Ex.PW1/A do not reflect any demand of Rs.50,000/ or Rs.1,00,000/ from SC No.50/2009 State Vs. Subhash Sharma and others 21/45 accused persons.
67.Ld counsel for accused persons further argued that prosecution has proved death in unnatural circumstances and within seven years but prosecution has not proved subjected cruelty or harassment by accused persons u/s 498A IPC, soon before death u/s 304B IPC and no evidence of cruelty or harassment soon before death.
68.Ld. counsel for accused persons further argued that there are only general allegations against the accused persons and there are total improvement in statement of PW made before Executive Magistrate. There is no demand of Rs.50,000/ or Rs. 1 lac had not mentioned in statement given to SDM, demand soon before death is also not mentioned.
69.Ld. counsel for accused persons further argued that complainant has stated in his statement that after the finalizing of marriage of his daughter, accused Subhash and Kanto had demanded dowry from him for getting her daughter married with their son Umesh but in cross examination of PW1 it has been confronted by Ld. counsel for accused persons wherein no such facts were corroborated.
70.Ld. counsel for accused persons further argued that complainant has stated that his daughter came back to his house after 10 to 15 days of her marriage and she told me that Subhash, Kanto, Umeshher husband, Santosh and Sonu used to harass her for not bringing adquate dowry and thereafter, she went back to her matrimonial SC No.50/2009 State Vs. Subhash Sharma and others 22/45 home and they kept on harassing his daughter for dowry, some people had intervened and settled the matter and they agreed to behave properly with her but again they started harassing her for bringing more dowry but in cross examination of PW1 it has been confronted by Ld. counsel for accused persons wherein no such facts were corroborated.
71.Ld. counsel for accused persons further argued that complainant has stated that in year 2005, his daughter came back to his house and she remained with them for about 18 months, but in cross examination of PW1 it has been confronted by Ld. counsel for accused persons wherein no such facts were corroborated.
72.Ld. counsel for accused persons further argued that PW4 in her cross examination has deposed that it is correct that her counsel had taught her by a statement and instructed her to make statement in the court and according to instructions of her private counsel she had deposed the same in the court. She has further deposed that she does not remember date and time after the marriage of her daughter when she came at her house or when she returned back to her matrimonial house. PW4 does not corroborate PW1 on the fact of Rs.50,000/ and no corroborating fact to not providing food, no date of demand, cruelty or harassment has been stated.
73.Ld. counsel for accused persons further argued that complainant in his statement has deposed that on 09.04.2008 a child call him on telephone as she was told to make this call by his daughter Sarvesh as she was not allowed to talk with any SC No.50/2009 State Vs. Subhash Sharma and others 23/45 member of their family and the child told him on telephone that his daughter had asked her to tell him that she was talking to some tenant of their hour, her nanad Santosh saw her talking to tenant and Santosh told her that "aaj teri khair nahi, shyam ko papa aur Umesh ko Ghar aane do, wo tumhey sabak sikhayay ge" but no child has been examined nor her statement was recorded by police.
74.Ld. counsel for accused persons further argued that PW1 stated that deceased had gone to her matrimonial house after 15 days, this fact has not been supported by PW4. PW4 in her cross examination has deposed that it is correct that her daughter was not having any child and her daughter was under depression due to this reason.
75.Ld. counsel for accused persons further argued that PW7 states that accused Umesh had demanded Rs.50,000/ whereas PW1 states that accused Subhash Sharma and Kantho Devi had demaned Rs.50,000/. This fact is not corroborated with PW1. PW7 further stated that father of deceased had handed over Rs.50,000/ to Subhash Sharma whereas PW1 states that he had handed over Rs.50,000/ to Kantho Devi, Subhash Sharma and Umesh, this fact is also not corroborated with PW1.
76.Ld. counsel for accused persons further argued that PW7 did not disclose the name of Ajay except Pawan, brother of deceased.
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77.PW8 Ishwar Dayal Sharma states that he had given Rs.50,000/ to accused Umesh whereas other PWs states to accused Subhash Sharma.
78.Ld. counsel for accused persons further argued that PW8 Ishwar Dayal Sharma states that he along with one relative reached at the matrimonial house of Sarvesh to deliver the marriage card of Subhash, at that time, he found that Sarvesh was being beaten by her motherinlaw, Smt. Kantho Devi and sisterinlaw, Smt. Santosh. Why this witness did not call police or neighbour or did not report to the parent of deceased.
79.Ld. counsel for accused persons further argued that PW9 Ajay Kumar create a new fact of demand of four wheeler which no other PWs had stated and alleged that Subhash Sharma had demanded Rs.50,000/ in the year 2007.
80.Ld. counsel for accused persons further argued that PW11 Brajender states about the settlement not for demand of dowry, fact of this witness has not been supported by any other PWs.
81.Ld. APP submits that PW Vijender had handed over cash amount Rs.50,000/ to the accused persons at their home in Delhi on 23.01.2007. On other hand Ld. Counsel for defence submits that on that day i.e. 23.01.2007 all the accused persons were present at Agra while attending the marriage of their cousin, Devki Nandan. In support of his arguments, ld. counsel for accused persons has produced SC No.50/2009 State Vs. Subhash Sharma and others 25/45 one set of CD. On seeing, it is found that accused Umesh, Subhash and Kantho Devi were found present in marriage of Devki Nandan at Agra.
82.Ld. counsel for accused persons has relied upon following citations :
i. Narayanamurthy Vs. State of Karnataka & Others, 2008 (2) JCC 1372, ii. Appasahed and another Vs. State of Maharashtra, (2007) 9 Supreme Court Cases 721, iii. Durga Prasad and another Vs. State of M.P., Criminal Appeal No.1081 of 2010, date of decision 14.05.2010, iv. State Vs. Lal Mani & Ors., 2011 (4) JCC 2515, v. State Vs. Sohan Lal and Others, 2011 (3) JCC 1966, vi. State of Punjab Vs. Daljit Singh and others, 1999 CRI. L.J. 2723, vii. Bhagat Sahu Vs. State of Madhya Pradesh, 2011 (2) Crimes 730 (Chhatt.), viii.Gurcharan Singh Vs. State of Punjab, II (2011) DMC 89, ix Mahendra Baliram Kamble Vs. State of Maharashtra, II (2011) DMC 428, x. Yavnesh Kumar Sahu & Others Vs. State of Chhattisgarh, III (2011) DMC 123, xi. State of Rajasthan Vs. Teg Bahadur and others, Criminal Appeal No.639 of 1998, date of judgment: 29.09.2004.
83.On these grounds, ld. counsel for accused persons has prayed for acquittal of all the accused persons from the charges.
PERUSAL OF RECORD/OPINION:
84.Arguments heard. Record perused. On perusal of record it is revealed that on 10.04.2008 a DD No.13A was recorded at Police Station New Usmanpur regarding consuming of unknown poison by one lady Sarvesh at House No. J266, SC No.50/2009 State Vs. Subhash Sharma and others 26/45 Gali No.03, Kartar Nagar, Delhi and she was got admitted in St. Stephen's Hospital and expired during medical treatment and said DD was marked to SI Mohd. Faiyaz for investigation. On receipt of this DD, SI Mohd. Fayyaz along with Ct. Sangram reached at St. Stephen's Hospital and collected MLC Ex.PW14/A of Sarvesh. Since the period of marriage was less than seven years, SI Mohd. Faiyaz had taken Shyam Babu and Smt. Guddi Devi (parents of deceased) to the Office of SDM, Seelampur to get their statement recorded by SDM. Sh. A.K. Pasi, Executive Magistrate, had recorded statement of Shyam Babu, father of deceased Ex.PW1/A and directed SHO PS New Usmanpur to take action as per law. On the basis of said statement of FIR Ex. PW6/C u/s 498A/304B/34 IPC was recorded at police station New Usmanpur. On 10.04.2008 dead body of deceased Sarvesh was shifted from St. Stephen's Hospital to mortuary of GTB Hospital. IO had completed inquest proceedings by filling inquest form Ex.PW10/G, filling up request for postmortem Ex.PW10/H and recorded statement of father of deceased Ex.PW1/B and Narender Kumar Ex.PW7/A regarding identification of dead body of deceased. After postmortem the dead body was handed over to the relatives of deceased. I.O. had prepared the site plan of the place of occurrence vide Ex.PW10/B. During the course of investigation, accused persons namely Subhash Sharma, Nitesh Sharma @ Sonu, Kumari Santosh Sharma, Umesh Kumar Sharma and Smt. Kamlesh Sharma were arrested for the offences u/s 498A/ 304 B/ 34 IPC.
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85.On perusal of record, it is further revealed that IO had prepared site plan Ex.PW10/B at the instance of complainant.
86.On perusal of record, it is further revealed that Executive Magistrate completed inquest proceedings of this case with assistance of Inspector Mussarrat Khan, by filling up inquest form Ex.Pw10/G, by recording statement of Narender Kumar Ex.PW7/A and statement of Sh. Shyam Babu Ex.PW1/B regarding identification of dead body of deceased Sarvesh and by filling up request for postmortem Ex.PW10/H.
87.On perusal of record, it is further revealed that IO had taken into possession one sealed wooden box containing viscera material of deceased and one other sealed parcel containing clothes of deceased along with sample seal vide seizure memo Ex.PW10/I which were delivered by GTB Hospital Staff and after postmortem dead body of deceased Sarvesh was released to her parents against receipt Ex.PW7/B.
88.On perusal of record, it is further revealed that on 20.05.2008 accused Umesh Kumar was formally arrested by IO SI Girish Gotwal vide arrest memo Ex.PW5/A and his personal search was conducted vide personal search memo Ex.PW10/B.
89.On perusal of record, it is further revealed that on 28.05.2008 accused Smt. Kamlesh Sharma @ Kanto Devi was formally arrested by IO SI Girish Gotwal SC No.50/2009 State Vs. Subhash Sharma and others 28/45 vide arrest memo Ex.PW5/C and her personal search was conducted vide personal search memo Ex.PW10/C.
90.On perusal of record, it is further revealed that accused Nitesh Sharma was arrested vide arrest memo Ex.PW5/E and his personal search was conducted vide PSM Ex.PW5/F, accused Subhash Sharma was arrested vide arrest memo Ex.PW10/C and his personal search was conducted vide PSM Ex.PW10/D and accused Kumari Santosh Sharma was arrested vide arrest memo Ex.PW18/A.
91.On perusal of record, it is further revealed that accused Nitesh Sharma @ Sonu and Kumari Santosh Sharma have been discharged and accused Subhash Sharma has been released by my ld. Predecessor vide order dated 30.09.2009.
92.On perusal of record, it is further revealed that Inspector A.K. Singh had taken into possession payment voucher document mark X, Y and Z in connection of borrowing a sum of Rs.50,000/ by complainant from his nephew Narender vide seizure memo Ex.PW11/A and IO had also taken into possession photocopy of marriage card Mark P1, engagement and marriage photographs vide Ex.P2 to Ex.P9 of Smt. Sarvesh with accused Umesh.
93.On perusal of record, it is further revealed that IO had placed FSL report of gastric lavage and viscera material vide Ex.PW17/B and Ex.PW17/C respectively. FSL report suggest that deceased had died due to consumption of aluminum phosphide SC No.50/2009 State Vs. Subhash Sharma and others 29/45 poison.
94.It is further revealed that Dr. Sumit Tellewar conducted postmortem examination of deceased Sarvesh vide postmortem report Ex.PW17/A and he opined cause of death due to aluminum phosphide poisoning after going through the viscera FSL Report Ex.PW17/B and gastric lavage FSL report Ex.PW17/C.
95.On perusal of record, it is revealed that PW11 Vijender has deposed regarding demand of Rs. 1 lac and motorcycle by accused Umesh, PW9 Ajay Kumar has deposed that deceased was being harassed for the demand of cash i.e. cash and four wheeler vehicle by accused Umesh Sharma, Kamlesh and Smt. Kantho Devi but these facts have not been mentioned by PW1 Shyam Babu in his complaint/statement.
96.On perusal of record, it is further revealed that PW4 in her cross examination by ld. defence counsel admits that her daughter was not having any child and her daughter was under depression due to this reason.
97.On perusal of record it is further revealed that MLC of deceased Ex.PW14/A, deceased was taken to GTB Hospital by her husband (accused Umesh) wherein alleged history of having consumed insecticide tablets at home today is mentioned.
98.On perusal of record, it is further revealed that PW7 states that accused Umesh had SC No.50/2009 State Vs. Subhash Sharma and others 30/45 demanded Rs.50,000/ whereas PW1 states that accused Subhash Sharma and Kantho Devi had demaned Rs.50,000/. This fact is not corroborated with PW1. PW7 further stated that father of deceased had handed over Rs.50,000/ to Subhash Sharma whereas PW1 states that he had handed over Rs.50,000/ to Kantho Devi, Subhash Sharma and Umesh, this fact is also not corroborated with PW1.
99.Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reached a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct, etc. in relation to the facts of the case.
100.Hon'ble Supreme court in "Sharad Birdhichand Sarda V. State of Maharashtra, (1984) 4 SCC 116" has laid down the parameters for arriving at an opinion in regard to proof of a prosecution case on the basis of the circumstantial evidence, stating:
"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be SC No.50/2009 State Vs. Subhash Sharma and others 31/45 said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793 where the following observations were made :
'19.....Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusion.' (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the Panchsheel of the proof of a case based on circumstantial evidence."
101.In the light of facts of present case, FSL report suggest consumption of aluminum phosphide by deceased.
102.Moreover, MLC also does not reflect any personal injury on the person of deceased during that period and other material PWs are relatives of deceased either father of deceased or relatives. Further, in postmortem report no abnormality detected upon the person of deceased.
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103.All the prosecution witnesses are relative to the deceased and deposing differently on facts of demand and cruelty and their statement made to police have been confronted. Therefore, chances of their deposing falsely cannot be ruled out. Be that as it may, when the offence is said to have been committed and the circumstantial evidence is made the basis for establishing the charge against the accused persons, indisputably all the links must be completed to form the basis for their conviction.
104.Before reaching at any conclusion the Section 113 B of the Evidence Act is also relevant for the case in hand. Both Sections 304 B IPC and Section 113 B of the Evidence Act were inserted as noted by the Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113 B which reads as follows : "113 B : Presumption as to dowry death When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation For the purposes of this section `dowry death' shall have the same meaning as in Section 304 B of the Indian Penal Code (45 of 1860)."
The necessity for insertion of the two provisions has been amply analyzed by the Law Commission of India in its 21st Report dated 10th August, 1988 on `Dowry Deaths and Law Reform'. Keeping in view the impediment in the pre existing law in securing evidence to prove dowry related deaths, legislature thought it wise SC No.50/2009 State Vs. Subhash Sharma and others 33/45 to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background presumptive Section 113 B in the Evidence Act has been inserted. As per the definition of `dowry 113 death' in Section 304 B IPC and the wording in the presumptive Section 113 B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the concerned woman must have been "soon before her death" subjected to cruelty or harassment "for in connection with the demand of dowry". Presumption under Section 113 B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the Court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials :
(1) The question before the Court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304 B IPC ).
(2) The woman was subjected to cruelty or harassment by her husband or his relatives.
(3) Such cruelty or harassment was for, or in connection with any demand for dowry.
(4) Such cruelty or harassment was soon before her death.
A conjoint reading of Section 113 B of the Evidence Act and Section 304 B IPC shows that there must be material to show that soon before her death the victim was subjected cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the `death SC No.50/2009 State Vs. Subhash Sharma and others 34/45 occurring otherwise than in normal circumstances'. The expression `soon before' is very relevant where Section 113 B of the Evidence Act and Section 304 B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. `Soon before' is a relative term and it would depend upon circumstances of each case and no strait jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113B of the Evidence Act.
The expression `soon before her death' used in the substantive Section 304B IPC and Section 113 B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression `soon before' is not defined. A reference to expression `soon before' used in Section 114, Illustration
(a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods `soon after the theft, is either the thief has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term `soon before' is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression `soon before' would normally imply that the interval should not be much between the SC No.50/2009 State Vs. Subhash Sharma and others 35/45 concerned cruelty or harassment and the death in question. There must be existence of a proximate and livelink between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.
The presumption u/s 113B of the Evidence Act for the purpose of section 304B can only be used when the death of deceased must have been "soon before her death subjected to cruelty or harassment" "for or in connection with the demand of dowry". Presumption u/s 113 B is a presumption of law. The Hon'ble Apex Court in 'Kamesh Panjiyan v. State of Bihar, (2005) 2 SCC 388' reiterating and elaborating the similar principles defining section 498A IPC and 304B IPC observed that:
"12. Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman is required to be established in order to bring home the application of Section 498A IPC. Cruelty has been defined in the Explanation for the purpose of Section 498A. Substantive Section 498A IPC and presumptive Section 113A of the Evidence Act have been inserted in the respective statutes by Criminal Law (Second Amendment) Act, 1983. It is to be noted that Sections 304B and 498A, IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the sections and that has to be proved. The Explanation to Section 498A gives the meaning of `cruelty'. In Section 304B there is no such explanation about the meaning of `cruelty'. But having regard to common background to these offences it has to be taken that the meaning of `cruelty' or `harassment' is the same as prescribed in the Explanation to Section 498A under which `cruelty' by itself amounts to an offence. Under Section 304B it is `dowry death' that is punishable and such death should have occurred within seven years of marriage. No such period is mentioned in Section 498A. If the case is established, there can be a conviction under both the sections. (See Akula Ravinder and others v. The State of Andhra Pradesh, 1991(3) RCR(Crl.) 97 (SC) : AIR 1991 SC 1142). Period of operation of Section 113B of the SC No.50/2009 State Vs. Subhash Sharma and others 36/45 Evidence Act is seven years, presumption arises when a woman committed suicide within a period of seven years from the date of marriage."
"13. Section 2 of the Dowry Prohibition Act, 1961 (in short `Dowry Act') defines "dowry" as under : Section 2. Definition of `dowry' In this Act, `dowry' means any property or valuable security given or agreed to be given either directly or indirectly
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mehr in the case of persons to whom the Muslim personal law (Shariat) applies.
Explanation I For the removal of doubts, it is hereby declared that any presents made at the time of a marriage to either party to the marriage in the form of cash, ornaments, clothes or other articles, shall not be deemed to be dowry within the meaning of this section, unless they are made as consideration for the marriage of the said parties.
Explanation II The expression `valuable security' has the same meaning in Section 30 of the Indian Penal Code (45 of 1860)."
"14. The word "dowry" in Section 304B IPC has to be understood as it is defined in Section 2 of the Dowry Act. Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third "at any time" after the marriage. The third occasion may appear to be unending period. But the crucial words are "in connection with the marriage of the said parties". Other payments which are customary payments e.g. given at the time of birth of a child or other ceremonies as are prevalent in different societies are not covered by the expression "dowry". (See Satvir Singh v. State of Punjab, 2001(4) RCR(Crl.) 355 (SC) : 2002(1) SCC 633). As was observed in said case "suicidal death" of a married woman within seven years of her marriage is covered by the expression "death of a woman is caused.... or occurs otherwise than under normal circumstances" as expressed in Section 304B IPC."
105.In order to bring home conviction under section 304B it will not be sufficient to only lead evidence showing that cruelty and harassment had been meted out to the victim,but that such treatment was in connection with demand of dowry. SC No.50/2009
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106.Hon'ble Supreme Court in case titled as "Nepal Singh Vs. State of Haryana, (2009) 12 Supreme Court Cases 351", wherein it has been held that :
"Penal Code, 1860 Ss. 304B and 498ADowry death Suicide by wife Acquittal by trial court Interference by High court On facts held, not justified Deceased committed suicide within seven years of marriage At the time of marriage - At the time of marriage appellant husband was studying Few days before the death, deceased met and told her parents that the accused had completed his course and wanted her to bring Rs. One lakh from them and that if she failed to do so accused would turn her out of the house Fact that while going back to the village of her inlaws she told her father to arrange for the money otherwise her inlaws would not allow her to live, and many other vital things not stated during investigation by PWs - DW1, who settled the marriage stated that there was no demand of dowry at the time of marriage and the deceased or her parents never complained to him for any such demand - No amount was sent to the appellant while he was prosecuting studies Father of the appellant promptly sent intimation of death to her parents Held, it was rightly noted by trial court that there was no evidence towards the claim regarding any demand of dowry Reasoning of High Court that something must have happened otherwise deceased would not have committed suicide, is clearly indefensible That certainly could not have been a reason to set aside trial court's wellreasoned judgment of acquittal."
107.After arguments and careful perusal of record, observations, preceding discussions and testimonies of PWs and DWs, it is clear that the present case was registered on the statement of PW1 Shayam Babu, father of deceased who is complainant and he has made only general allegations upon all the accused persons and none of PWs including PW1 Shyam Babu could produce any receipt of cash or RC of motorcycle or date of demand of dowry on record in order to prove the payment on account of demand of dowry and further he could not tell the dates or SC No.50/2009 State Vs. Subhash Sharma and others 38/45 time regarding the torture, harassment or cruelty committed by accused persons in connection with demand of dowry. Statements of all material PWs have been confronted and they also have been declared hostile by ld. APP for the State. Moreover, PW Guddi Devi, mother of deceased submits that deceased was under
depression due to infertility. Allegations leveled by PWs appears to be vague.
108.Further, no DWs had deposed in the support of prosecution and even in the cross examination by Ld. APP for the state, they had not deposed anything towards cruelty or demand of dowry upon the deceased by the accused persons.
109.Even, 'soon before death' no circumstances have been proved by the prosecution connecting the accused persons subjected to cruelty or harassment upon deceased on account of demand of dowry. As no physical injury has been suggested either in her MLC or in her postmortem report. In terms of section 113B Evidence Act the term 'soon before death' lead to presumption that accused persons had caused dowry death. Since in the present case ingredients of section 304B IPC have not been fulfilled. Hon'ble Supreme Court in case "State of Rajasthan Vs. Teg Bahadur, 2004(8) J.T. 116", has held that:
"Prosecution has to prove 1. The death of married woman was within seven years of marriage. 2. a little prior to death, her husband or relative on point of demand of dowry subjected cruelty to her or harassed her. 3. Prosecution has to rule out the possibility of natural or accidental death so as to bring within purview of "death occurring otherwise then in normal circumstances".SC No.50/2009
State Vs. Subhash Sharma and others 39/45 "On the careful scrutiny of the statements of the aforesaid witnesses, it is seen that witnesses have given different statements regarding demand of dowry.
According to him, with respect to dowry, dispute was raised at the time of marriage. According to Om Prakash, when Suman returned to her parents' house, she complained about demand of dowry by the inlaws. There is no corroboration about the statement of Om Prakash by the statement of his wife Smt. Hira Bai. Under these circumstances, we are of the opinion, that there is lack of evidence to prove the demand of dowry and that the evidence led by the prosecution bristles with discrepancies and contradictions. On the basis of the evidence, it could not be treated to have been proved that actually the accused had made a demand of dowry and that was made soon before the death and due to this, the deceased was harassed."
110.Since it is established that at the time of marriage there was no demand of dowry. The provisions of section 304B IPC has application when death of woman is caused by any burns or bodily injury or occurs otherwise then under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relatives of her husband for, or in connection with any demand for dowry. The evidence of complainant PW1 Shyam Babu shows that at the time of marriage there was no demand of dowry. The crucial question whether there were demand soon before death. None of PWs stated that complaints were made to authority regarding demand of dowry against the accused persons. There are mere general allegations and there is no definite evidence about the ill treatment to the deceased at any time having immediate proximity to the death of deceased by the accused SC No.50/2009 State Vs. Subhash Sharma and others 40/45 persons to attach culpability under section 304B IPC, therefore, basic requirement of cruelty or harassment soon before death to bring application of section 304B IPC is absent.
111.Further question is whether the case under section 498A IPC is made out. Even if accusation under section 304B IPC fails.
498A IPC. Husband or relative of husband of woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation. For the purpose of this section, 'cruelty' means
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand or any property or valuable security or is on account of failure by her or any person related to her to meet such demand."
112.In reference to section 498A IPC no circumstance has been shown by the prosecution indicating any willful conduct on part of any of the accused persons. Only mere general allegations cannot be put as willful conduct towards demand of dowry or cruelty by the accused persons.
113.Since none of the material witnesses in their testimonies have deposed that accused persons were responsible for the death of deceased Sarvesh. Moreover, neither deceased Sarvesh during her treatment had stated to the doctor alleging that accused persons were responsible for her death.
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114.Since statements of material witnesses have been confronted. Hence, they cannot be said to be a reliable witness for prosecution of accused persons.
115.Since ld. APP for the State submits that PW Vijender had handed over cash amount Rs.50,000/ to the accused persons at their home in Delhi on 23.01.2007 but on seeing the one set of CD's, produced by ld. counsel for accused persons, on laptop, it is found that on 23.01.2007 accused persons namely Umesh Sharma, Subhash Sharma and Smt. Kantho Devi were found present in marriage of Devki Nandan at Agra, U.P.
116.From the testimonies of witnesses and circumstances and facts of this case, at this stage, this court comes to the conclusion that the case of prosecution does not inspire the confidence of this court as prosecution has failed to prove the guilt of accused persons beyond the reasonable doubt.
117.Further, facts of the case also does not prove any circumstance which may lead to the conviction of the accused persons. Accordingly, keeping in consideration testimonies and facts and circumstances of this case, this court comes to the conclusion that case of the prosecution does not inspire the confidence of this court. Hence, at this stage in the absence of sufficient evidence against the accused persons this court acquit accused persons namely Umesh Shamra and Smt. Kamlesh Sharma @ Kantho Devi from the charges u/s 498A/304B/34 IPC. SC No.50/2009
State Vs. Subhash Sharma and others 42/45
118.In terms of Section 437 (A) Cr. P.C. accused persons namely Umesh Sharma and Smt. Kamlesh Sharma @ Kantho Devi are directed to execute bail bond in sum of Rs.20,000/ each with one surety in the like amount for the period of six months. Order accordingly, file be consigned to record room.
PRONOUNCED IN THE OPEN COURT ON THIS 16.01.2012.
(RAMESH KUMARII)
ADDL. SESSIONS JUDGE01/NORTH EAST
KARKARDOOMA COURTS: DELHI
SC No.50/2009
State Vs. Subhash Sharma and others 43/45