Delhi District Court
State vs . Dharmender Sharma on 26 August, 2014
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 200/2013
Unique Case ID: 02404R0166842013
State Vs. Dharmender Sharma
S/o Ram Shankar Sharma
R/o House No. N27, Krishan Vihar
Sultanpuri, Delhi.
(Acquitted)
FIR No. : 90/2013
Under Section : 498A/304 B Indian penal Code.
Police Station : Sultanpuri
Date of committal to Sessions Court: 18.12.2013
Date on which orders were reserved: 26.8.2014
Date on which judgment pronounced: 26.8.2014
JUDGMENT
BRIEF FACTS:
(1) As per the allegations, on 28.01.2013 at 2:30 PM at First Floor, House No. N27, Krishan Vihar, within the jurisdiction of Police Station Sultanpuri, the accused Dharmender Sharma being the husband of the deceased Seema subjected Seema to cruelty by making illegal demands of motorcycle as dowry from her and harassed her since after her marriage with him and he also gave beatings to her. It is further alleged that on the above said, date, time and place the accused Dharmender Sharma caused State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 1 death of Seema by hanging otherwise than under normal circumstances within seven years of her marriage and soon before her death, she was subjected to cruelty or harassment by the accused in connection with the demand of dowry.
CHARGE:
(2) Charges under Section 498A/304 B Indian Penal Code was settled against the accused Dharmender Sharma to which he pleaded not guilty and claimed trial.
(3) Before coming to the testimonies of individual witnesses, the details of the witnesses examined by the prosecution and the documents proved by them are hereby put in a tabulated form as under:
List of Prosecution Witnesses:
Sr. PW No. Name of the Details of the witness
No. witness
1. PW1 Ct. Pramod Kumar Police Official - DD Writer
2. PW2 Ct. Naresh Kumar Police Official - Took the exhibits to FSL
3. PW3 Ct. Naushad Police Official who was on Emergency
Duty on 18.01.2013.
4. PW4 HC Vijay Kumar Police Official - DD Writer
5. PW5 HC Gobind Police Official - MHC (M)
6. PW6 SI Anil Kumar Police Official - Incharge Crime Team
7. PW7 HC Shiv Om Police Official - Member Crime Team
8. PW8 Ct. Om Prakash Police Official - Duty Officer
9. PW9 HC Satyapal Singh Police Official - Duty Officer
State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 2
Sr. PW No. Name of the Details of the witness
No. witness
10. PW10 HC Sanoj Kumar Police Official - Collected the exhibits from the
hospital
11. PW11 Dr. Manoj Dhingra Official Witness from BJRM Hospital
12. PW12 Amar Pal Singh Official Witness from FSL
13. PW13 Hira Lal Official Witness - Tehsildar
14. PW14 Vindo Kumar Public Witness
15. PW15 Anil Kumar Public Witness
16. PW16 Ram Avtar Public Witness
17. PW17 Manju Public Witness
18. PW18 ASI Abbas RAza Police Official
19. PW19 Insp. Ram Kishore Police Official - Investigating Officer
List of documents exhibited:
Sr. Exhibit No. Details of documents Proved by
No.
1 PW1/1 Affidavit of witness of Ct. Parmod Ct. Parmod Kumar
Kumar
2 PW1/A DD NO. 33A
3 PW2/1 Affidavit of witness of Ct. Naresh Ct. Naresh Kumar
Kumar
4 PW2/A RC 51/21/13
5 PW2/B FSL Receipt
6 PW3/1 Affidavit of witness Ct. Naushad Ct. Naushad
7 PW4/1 Affidavit of witness HC Vijay Kumar HC Vijay Kumar
8 PW4/A DD No. 34A
9 PW4/B FIR
10 PW4/C Endorsement on Rukka
State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 3
Sr. Exhibit No. Details of documents Proved by
No.
11 PW5/1 Affidavit of witness HC Gobind Singh HC Gobind Singh
12 PW5/A Copy of Reg No 19 Sr. No. 9760
13 PW6/1 Affidavit of witness SI Anil Kumar SI Anil Kumar
14 PW6/A Crime team Report
15 PW7/1 Affidavit HC Shiv Om
16 PW7/A1 to Photographs
7/A4
17 PW7/B Negatives
18 PW8/1 Affidavit of witness Om Parkash Ct. Om Parkash
19 PW8/A Certificate U/s 65B
20 PW9/1 Affidavit of witness HC Satyapal Singh HC Satyapal Singh
21 PW10/1 Affidavit of wintess HC Sanoj Kumar HC Sanoj Kumar
22 PW10/A Seizure memo of Viscera peti and
sample seal
23 PW11/A MLC of Seema Dr. Manoj Dhingra
24 PW11/B Postmortem Report
25 PW12/A FSL Report Amar Pal Singh
26 PW13/A Joint statement of Vinod and Manju Hira Lal
27 PW13/B Request for Autopsy
28 PW13/C Brief facts
29 PW13/D Death report
30 PW13/E Statement of of Vinod
31 PW13/F Statement of Anil
32 PW14/A Dead body handed over memo Vinod Kumar
33 PW14/DX1 Confronted statement of Vinod Kumar
34 PW14/DX2 Confronted statement of Vinod Kumar
State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 4
Sr. Exhibit No. Details of documents Proved by
No.
35 PW15/DX1 Confronted statement of Anil Anil
36 PW17/PX1 Confronted statement of Anil Manju
37 PW18/A Rukka ASI Abbas Raza
38 PW18/B Site plan
39 PW18/C Arrest memo of accused Dharmender
Sharma
40 PW18/D Personal search memo of accused
Dharmender Sharma
EVIDENCE:
(4) In order to discharge the onus upon it, the prosecution has
examined as many as Nineteen witnesses as under: Public Witnesses:
(5) PW14 Sh. Vinod Kumar is the fatherinlaw of accused. He deposed that his daughter Seema was married to accused Dharmender Sharma on 20.04.2008 according to Hindu rites and ceremony and he had given stridhan according to his status and capability in the marriage to his daughter. According to him, the accused Dharmender Sharma used to demand money and motorcycle but when he could not give the cash and motorcycle the accused repeated his demands. He further deposed that he had given his statement to the SDM when his daughter Seema expired due to hanging. He has proved his statement, which is Ex.PW13/A. He State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 5 further deposed that his wife Smt. Manju has also given the statement to the SDM alongwith him. According to him, the parents of his son in law Dharmender Sharma used to demand cash and motorcycle from his daughter Seema who used to tell them with regard to the said demands.
Prior to this incident the accused Dharmender Sharma and his parents demanded the cash and the motorcycle.
(6) He further deposed that on 28.01.2013, he received the information regarding death of his daughter Seema. He testified that he had not given the name of any person in his complaint regarding demand of cash and motorcycle however he had stated only that "Dharmender ke gharwali cash aur motorcycle mangte thay". He has further deposed that he had identified the body of his daughter Seema in the mortuary of SGM Hospital vide his statement Ex.PW13/E. After the postmortem conducted, the body was received by him vide receipt Ex.PW14/A. (7) In cross examination by Ld. Addl. P P, he admitted that he had given the name of his son in law Dharmender in the statement recorded by the SDM vide Ex.PW13/A as the person who had demanded cash and motorcycle from his daughter and not "uske gharwali mangte thay". He has admitted that he had mentioned in his statement Ex.PW13/A that when he had refused to give cash and motorcycle, they had raised suspicion that due to not giving the cash and motorcycle to accused Dharmender, he got her killed.
State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 6 (8) He has further admitted that he had mentioned in his statement Ex.PW14/PX1 that he had given the stridhan to his daughter beyond his capacity but his son in law Dharmender was not happy with the stridhan and he/accused used to beat his daughter on the issue of dowry and used to demand motorcycle and cash and many times he and other people made his son in law understand but after some time he again started beating his daughter. He has further admitted that his daughter Seema gave birth to a male child and on that occasion his son in law Dharmender had demanded motorcycle and cash but he had given the articles according to his capacity. He had also admitted that on the issue of demand his daughter Seema was disturbed in the family. He has further admitted that he had given the name of his son in law in the statement recorded by the SDM as well as in the statement given to the police.
(9) In his cross examination by the Ld. Defence Counsels he has deposed that he did not make any complaint either before the police or to any other authority or to the Panchayat of Fraternity or to any person of the area regarding the demand of motorcycle and cash. He has further deposed that he had mentioned in his statement to the Executive Magistrate or to the police that cash of Rs.50,000/ was demanded by the accused. According to him, his daughter was beaten by the accused Dharmender in his presence at his home and he never took his daughter to the hospital for treatment of any injury caused by the accused. He has denied the suggestion that the accused never gave any beating to his State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 7 daughter. He has admitted that he never made any complaint to the police regarding the giving of alleged beating and has also admitted that he had not stated to the Executive Magistrate that his daughter Seema was being harassed by the accused or that 1012 days prior to the incident the accused Dharmender had demanded cash and motorcycle from Seema. He also admitted the compromise deed as Ex.PW14/DX1 and the document Ex.PW14/DX2.
(10) He has admitted that he did not state either to the Executive Magistrate or to the police that the parents of the accused had said that if their son asked for motorcycle and cash then he should give it to him. He has admitted that he did not tell the Executive Magistrate that the parents of the accused and the accused used to demand motorcycle and cash or that Dharmender was not happy with the dowry given to Seema by them in the marriage. He denied the suggestion that neither accused Dharmender has demanded cash and motorcycle nor he had given any beatings to his daughter Seema at any point of time nor she was harassed by the accused Dharmender for not giving the cash and motorcycle to him. He has further denied the suggestion that his daughter Seema was obstinate and with his family and they forced her to separate from the family of accused which she never liked and due to this fact she committed suicide. (11) PW15 Sh. Anil Kumar is the brother of deceased and has deposed that his sister Seema was married to Dharmender Sharma according to Hindu rites and ceremonies about five years ago. According State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 8 to him, at the time of marriage they have given various items of domestic use like fridge, almirah and bed as per their capacity. He further deposed that during the marriage they were also giving a bike make Platina but there was a demand by the accused for Pulsor but they could not afford the same and soon after the marriage for this reason the behaviour of Dharmender towards his sister was bad and not proper and the accused did not speak to his sister properly. He has stated that his sister often told him and his mother when she used to come home that his behaviour towards her was not proper and accused was more attached to her bhabhi. He has further deposed that On 01st of January about two years ago i.e. in the year 2012 her son was born and they had given gold chain, clothes etc. According to him, on 28.01.2013 he received a call from the family members of Dharmender Sharma informing him that his sister was unwell and was admitted in SGM hospital on which he rushed to the hospital and found that his sister had already expired. He has identified the dead body of his sister Ex.PW13/F and after the postmortem, the dead body was handed over to them vide memo Ex.PW14/A (12) In the cross examination by Ld. Addl. PP for the State, he has admitted that after the incident, the police had interrogated him but his statement was not recorded. He also admitted that he had told the police during the interrogation that after the marriage the accused Dharmender used to do marpitai with his sister on account of their failure to meet his demand of motorcycle. He has also admitted that he had told the police State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 9 that whenever his sister used to call them up she used to complain that Dharmender was pressuring and compelling her to get the motorcycle from them and frequently did mar pitai with her.
(13) In his cross examination by the Ld. Defence Counsel, he has deposed that he did not give any statement to the Executive Magistrate. He has also admitted that he did not mention to the police in his statement Ex.PW15/DX1 that they were wanting to give motorcycle Platina but the demand was for Pulsar motorcycle. He has further admitted that he did not inform the police that the accused Dharmender was more attached to his bhabhi then to his sister. He has denied the suggestion that there was no demand of the motorcycle by the accused Dharmender or harassment caused to his sister by the accused at any point of time or that it is for this reason that no complaint has been made to any authority at any point of time.
(14) He has identified his signatures on the compromise deed Ex.PW14/DX1 and on the documents Ex.PW14/DX2 and has explained that he made this signatures in the police station on 04.02.2013. (15) PW16 Sh. Ram Avtar deposed that about 1 1½ years ago, when he had come back home to attend some private family function at around 2 PM (afternoon), he heard loud voices of crying coming from the house of Ram Shanker bearing No. N27 and when he reached the said house and inquired from them as to what had happened on which they told him that condition of their daughterinlaw (bahu) Seema was bad. State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 10 Thereafter he along with one other boy immediately put Seema on the bike and shifted her to SGM hospital. In the hospital they came to know that the doctors had declared her brought dead.
(16) In his cross examination by Ld. Addl. PP for the State, he has admitted that the date of the incident was 28.01.2013. (17) In his cross examination by the Ld. Defence Counsel, he has deposed that he has never heard of any dispute regarding dowry demand in the family of Ram Avtar and had never heard Dharmender or his family members asking for any motorcycle or complaining that it was not given. (18) PW17 Smt. Manju is the mother of deceased Seema who has deposed that his daughter Seema was married to Dharmender Sharma on 20.04.2008 according to Hindu rites and ceremony and they had given stridhan according to their status and capability. She has further deposed that there was some dispute with her daughter Seema and her husband on their issues. She has also deposed that when she received information regarding the death of her daughter, they had gone to the matrimonial house of her daughter Seema and the SDM made some inquiries from her. She has proved her statement Ex.PW13/A and has further deposed that there was some dispute about motorcycle between her daughter Seema and her husband but she does not know the details.
(19) In the cross examination by Ld. Addl. P P, she admitted that she had given the name of his son in law Dharmender in the statement recorded by the Tehsildar vide Ex.PW13/A as the person who had State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 11 demanded cash and motorcycle from her daughter. She has further deposed that she had stated in the statement that they had given the stridhan to her daughter beyond their capacity but her son in law Dharmender was not happy with the stridhan and he used to beat her daughter on the issue of dowry and used to demand motorcycle and cash. She had admitted that her daughter Seema had given birth to a male child and on that occasion her son in law Dharmender had demanded motorcycle and cash but she had given the articles according to her capacity. She has also admitted that on the issue of demand her daughter Seema was disturbed. She has further admitted that she had given the name of her son in law in the statement recorded by the Tehsildar as well as in the statement given to the police.
(20) In his cross examination by the Ld. Defence Counsel, she has deposed that she had told the SDM in her statement Ex.PW13/A that when her daughter gave birth to a male child, the accused Dharmender had demanded motorcycle and cash and has denied that she did not tell the Tehsildar/ Executive Magistrate that her son in law used to beat her daughter Seema. She has further deposed that she used to talk on phone with the accused Dharmender much before the death of her daughter. She has further deposed that she had gone to the police station after the incident and has admitted her signatures on the compromise deed Ex.PW14/DX1 and also admitted her signatures on the application Ex.PW14/DX2. She has denied that the accused Dharmender had never State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 12 demanded cash or motorcycle from them or that her daughter Seema was obstinate. She has denied that she and her family forced her to separate from the family of accused which Seema never like and due to this fact she committed suicide.
Forensic / Medical Evidence:
(21) PW11 Dr. Manoj Dhingra is the Incharge of Mortuary, SGM Hospital. He has proved the MLC of Seema W/o Dharmander bearing no.
2029 dated 28.01.2013, which was prepared Dr. Rajesh, CMO, which is now Ex.PW11/A. According to him, as per the record, the patient was brought in the hospital in unconscious condition and was declared dead and the body was sent to mortuary.
(22) He has further deposed that on 29.01.2013 he alongwith Dr. Munish Wadhawan conducted postmortem on the body of Seema W/o Dharmender, aged about 27 years, female. The body was sent by Executive Magistrate Sh. Hira Lal and was identified by Anil and Vinod. He proved the details PM report Ex.PW11/B. He has further deposed that the Cause of Death was Asphyxia as a result of antemortem hanging. (23) In his cross examination by the Ld. Defence Counsels, he has deposed that Hyod bone was not damaged, it was intact and has voluntarily explained that except the ligature mark, no injury seen to any muscles and cartilage of neck structure. He has further deposed that ligature material was not produced before them before conducting the postmortem and no State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 13 separate opinion was given by them regarding the ligature material. (24) PW12 Sh. Amar Pal Singh is the Assistant Director of FSL, Rohini, Delhi. He has deposed that on 13.02.2013 one sealed plastic box was received in FSL and the same was marked to him for examination. The seals were found to be intact and tallied with sample seal forwarded. He has mentioned the details of the parcel and its exhibits in his report. (25) According to him, after the chemical, Microscopic and TLC examination, metallic poisons, ethyl and methyl alcohol, cyanide, phosphide, alkaloid, barbiturates, tranquilizers and pesticides could not be detected in exhibits 1A (stomach & piece of small intestine with contents kept in a jar), 1B (pieces of liver, spleen and kidney, kept in a jar), 1C (blood sample volume 200 ml. approx, kept in a jar) and 1D (preservative sample, common salt solid, kept in a jar). He has proved the detailed report Ex.PW12/A and has not been cross examined.
Police / Official Witnesses:
(26) PW1 Ct. Parmod Kumar is the DD Writer and has been examined by way of affidavit which is Ex.PW1/1. He proved DD No. 33A, copy of which is Ex.PW1/A. He has not been cross examined on behalf of the accused despite being granted an opportunity in this regard.
(27) PW2 Ct. Naresh Kumar had taken the exhibits to the FSL and deposited the same there. He has been examined by way of affidavit State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 14 which is Ex.PW2/1. He proved RC No. 51/21/13, copy of which is Ex.PW2/A and receipt of FSL, copy of which is Ex.PW2/B. He has not been cross examined on behalf of the accused despite being granted an opportunity in this regard.
(28) PW3 Ct. Naushad Ali was on emergency duty on 18.01.2013 in the Police Station Sultanpuri and on receipt of DD No. 33 A he along with ASI Abbas Raza reached at the hospital. He has been examined by way of affidavit which is Ex.PW3/1. He has not been cross examined on behalf of the accused despite being granted an opportunity in this regard.
(29) PW4 HC Vijay Kumar is the DD Writer and has been examined by way of affidavit, which is Ex.PW4/1. He proved DD No. 34A, copy of which is Ex.PW4/A, copy of FIR which is Ex.PW4/B and endorsement on rukka, which is Ex.PW4/C. He has not been cross examined on behalf of the accused despite being granted an opportunity in this regard.
(30) PW5 HC Gobind Singh has been examined by way of affidavit, which is Ex.PW5/1. He has proved the entry in register No. 19 vide mud No. 9760, copy of which is Ex.PW5/A. He has also proved the entry in register No. 21 vide RC No. 51/21/13, copy of which is Ex.PW2/A and copy of FSL receipt, which is Ex.PW2/B. He has not been cross examined on behalf of the accused despite being granted an opportunity in this regard.State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 15
(31) PW6 SI Anil Kumar is the Incharge, Crime Team and has been examined by way of affidavit, which is Ex.PW6/1. He has proved the Crime Team Report which is Ex.PW6/A. In his cross examination, the witness has deposed that he did not notice any marks of struggle at the scene of crime.
(32) PW7 HC Shiv Om has been examined by way of affidavit, which is Ex.PW7/1. He has proved the Photographs, which are Ex.PW7/A1 to Ex.PW7/A4 and negatives of the same, which are collectively Ex.PW7/B. In his cross examination, he has deposed that no sign of any scuffle or struggle seen by him or noticed by him at the scene of crime.
(33) PW8 Ct. Om Parkash is the Duty Officer who had recorded the FIR. He has been examined by way of affidavit, which is Ex.PW8/1.
He has proved the copy of FIR, which is Ex.PW4/B and Certificate u/s 65 B of Indian Evidence Act, which is Ex.PW8/A. He has not been cross examined on behalf of the accused despite being granted an opportunity in this regard.
(34) PW9 HC Satyapal Singh is the Duty Officer and has been examined by way of affidavit which is Ex.PW9/1. He has proved DD No. 33A, copy of which is Ex.PW1/A. He has not been cross examined on behalf of the accused despite being granted an opportunity in this regard. State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 16 (35) PW10 HC Sanoj Kumar has been examined by way of affidavit, which is Ex.PW10/1. He has proved seizure memo of Viscera peti and sample seal which is Ex.PW10/A which he had been given in the hospital and was seized by the Investigating Officer. He has not been cross examined on behalf of the accused despite being granted an opportunity in this regard.
(36) PW13 Sh. Hira Lal is Superintendent, Head Quarter, Development Department, 5/9, Under Hill Road, GNCT of Delhi. He deposed that on 29.01.2013, he was working as Tehsildar, Rohini / Executive Magistrate, North West District. According to the witness, on that day he received information from the Police Station that one lady Seema had been declared dead in the SGM Hospital and he was requested to come in the hospital. He went to the hospital at about 10.00AM. He recorded the joint statement of Vinod and Manju, which statement is Ex.PW13/A. He further deposed that the request for performing the Autopsy on the body was prepared by the IO which is Ex.PW13/B. The brief facts is Ex.PW13/C. He proved the the death report as Ex.PW13/D. He also proved the statement of Vinod and Anil regarding identification of body as Ex.PW13/E and Ex.PW13/F respectively.
(37) In his crossexamination by the Ld. Defence Counsels, he has deposed that he was deputed by the SDM to record the statement of the witnesses which information was given to him by the IO. He admitted that State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 17 brief facts was not prepared by him, however he attested the same. He denied the suggestion that he has not conducted the proceedings himself or that only his signatures was taken by the IO on the documents. (38) PW18 ASI Abbas Raza deposed that on 28.01.2013 at around 3:15 PM, he received DD No. 33A, which is EX PW1/A when he along with Ct. Naushad went to SGM hospital where they met Ram Avtar and came to know that Seema had been brought to the hospital and had been declared brought dead and he received the MLC. He has stated that the dead body of Seema was shifted to the mortuary and therefore he left Ct. Naushad to the spot and he also informed the SHO about the status. He has further deposed that he came to know from Ram Avtar that Seema was married hardly 4 years ago and he then gave the information to SDM and recorded the statement of Ram Avtar.
(39) According to him, at around 7 PM Crime Team came to the spot and inspected the same and also took the photographs of the spot of the incident i.e. room on the first floor. He has further deposed that on 29.01.2013 the SDM came to he SGM hospital and parents of the deceased also came there where the SDM recorded the statement of the parents of the deceased and then prepared the inquest papers and got the postmortem conducted. According to him, after the postmortem the doctor handed over to him a viscera peti and a sample seal which was seized by him vide seizure memo Ex.PW10/A which dead body was then handed over to the family members of the deceased and he then returned to the Police Station State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 18 and deposited the Viscera in the malkhana and made endorsement on the statements, which endorsement is Ex.PW18/A and converted the same into tehrir and then handed over the tehrir to the duty officer for getting the case registered. He has further deposed that after the case was registered, the further investigations were handed over to Insp. Ram Kishore. (40) He further deposed that he then accompanied Insp. Ram Kishore to the spot and Insp. Ram Kishore prepared the site plan which is Ex.PW18/B. He has further deposed that they found Dharmender Sharma at the house itself and the accused was interrogated and thereafter arrested by the IO vide memo Ex.PW18/C, his personal search was conducted vide memo Ex.PW18/D and thereafter his medical examination was got conducted from SGM hospital.
(41) In his cross examination by the Ld. Defence Counsel, he has deposed that apart from Ram Avtar, he did not meet any other neighbor or any other public person in the hospital and has further deposed that Ram Avtar told him that the deceased was brought on a motorcycle of a boy from the neighbor. He has further deposed that he went to the hospital and saw the body on the next day and also saw the strangulation marks. He has admitted that even before the FIR was registered, the postmortem was conducted and the body was handed over to the parents of the deceased. He has stated that he did not get the photography of the dead body of the deceased Seema done. He has further deposed that he did not make any inquiry from Ram Avtar or any other person from the family of the State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 19 accused as to who had brought the body down from the ceiling and also did not make any inquiry from the in laws of the deceased with regard to the place of incident. He further deposed that it was Ram Avtar who told him that the body was lying in the room on the first floor and has admitted that a large number of neighbors had gathered at the spot from whom he had made inquiries with regard to the spot of the incident and they told him that it was the room on the first floor. He has denied the suggestion that he did not make any inquiry and it is for this reason that he is unable to give the name of any person. He has admitted that he did not seal the room on the first floor and also did not get any chance prints lifted from the room on the first floor nor any ligature material was lifted by him. (42) He further deposed that he had informed the parents of the deceased regarding her death and had also informed the SDM about the death of deceased on 28.01.2013 at around 4:30 PM. He denied the suggestion that the parents of the deceased had only received the information from the parents of the accused and not from him. (43) He has further deposed that he informed the SHO on telephone from the hospital but did not give any written information to the duty officer for recording of DD regarding unnatural death of the deceased within seven years of her marriage. He has also admitted that the call/DD No. 33 A was kept pending. He has further admitted that the executive magistrate did not go to the scene of crime i.e. to N27, room on the first floor but has denied the suggestion that Executive Magistrate did not carry State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 20 out the body inspection of the deceased. He has further deposed that no memo of the body inspection was prepared by the executive magistrate. (44) PW19 Insp. Ram Kishore is the IO of the case who has deposed that on 29.01.2013 the investigations of the present case was marked to him and he was handed over the original tehrir and copy of FIR by Duty Officer and he joined ASI Abbas Raza in the investigations after which ASI Abbas Raza handed over to him seizure memo of Viscera peti and the Crime Team Report after which he along with ASI Abbas Raza reached the spot i.e. N27, Krishan Vihar, Sultanpuri, Delhi where he prepared the site plan at the instance of ASI Abbas Raza which is Ex.PW18/B. He has further deposed that he also tried to search for the ligature material as there was ligature marks on the neck of the deceased but could not find the same. According to the witness, they found Dharmender Sharma at the house itself and the accused was interrogated and thereafter arrested by him vide memo Ex.PW18/C and personal search was conducted vide memo Ex.PW18/D and thereafter his Medical Examination was got conducted from SGM hospital after which they returned to the Police Station. He further deposed that he recorded the statement of ASI Abbas Raza and on 13.02.2013 exhibits of the present case were sent to FSL Rohini through Ct. Naresh Kumar. He has further deposed that on 18.02.2013 he collected the photographs from the photographer of Crime Team after which he recorded the statements of crime team incharge and photographer and also of the other witnesses He State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 21 further deposed that in the month of January, 2014, he collected the FSL result.
(45) In his cross examination by the Ld. Defence Counsel, the witness has deposed that he did not give any information to the SDM and has voluntarily added that ASI Abbas Raza had given the same. He has admitted that the inquiry in the case was not conducted by the SDM and was in fact conducted by the tehsildar, who is a designated Executive Magistrate. He has further deposed that he did not collect or file the relevant notification of the state government authorizing Sh. Hira Lal, executive magistrate to carry out the inquest proceedings. (46) According to him, mother of the accused was the only person present in the house at the time of the incident but he did not prepare the site plan on the pointing out of mother of the accused and has stated that it was prepared on the pointing out of ASI Abbas Raza. He has further deposed that the dead body had been brought down by the neighbors i.e. Ram Avtar and other persons and has denied the suggestion that he did not interrogate any person including the neighbors and all proceedings were conducted by ASI Abbas Raza on the basis of which he concluded the investigations. He has denied that it is for this reason that he is unable to give the details.
(47) He has further deposed that he did not obtain any opinion from the autopsy surgeon with regard to the nature of the ligature material and also did not interrogate Ram Avtar or any other neighbor on the aspect of State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 22 the ligature material. He has further deposed that during the investigations, he came to know that the marriage had been mediated through one Rajesh Sharma and he had interrogated Rajesh Sharma but did not record his statement.
STATEMENT OF ACCUSED/ DEFENCE EVIDENCE:
(48) After completion of prosecution evidence the statement of the accused Dharmender Sharma was recorded under Section 313 Cr.P.C.
wherein all the incriminating evidence was put to the accused which he has denied.
FINDINGS:
(49) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also gone through the evidence on record and the memorandum of arguments filed by the parties. My findings are as under:
Identity of the accused:
(50) In so far as the identity of the accused Dharmender Sharma is concerned the same is not disputed. He is the husband of the deceased Seema and has been duly identified in the Court by the various prosecution as such. I hereby hold that the identity of the accused Dharmender Sharma stands established.
State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 23 Unnatural Death within Seven years of marriage: (51) It is an admitted case of the prosecution that the marriage of Seema (now deceased) was solemnized with the accused Dharmender Sharma on 20.4.2008 as per Hindu rites and customs after which she started residing at her matrimonial house at House No. N27, Krishan Vihar, Sultan Puri, Delhi and she died an unnatural death (hanging) on 28.1.2013 i.e. within Four Years, Nine Months and Eight Days of marriage. It, therefore, stands established that the deceased Seema had died an unnatural death within seven year of marriage.
Medical Evidence:
(52) The case of the prosecution is that Seema had died an unnatural death on 28.1.2013 on account of hanging. In this regard the prosecution has placed its reliance on the testimony of Dr. Manoj Dhingra (PW11) and the reports proved by him.
(53) I have gone through the testimony of Dr. Manoj Dhingra (PW11) who has proved the MLC of Seema W/o Dharmander prepared Dr. Rajesh which MLC is Ex.PW11/A according to which the patient was brought in the hospital in unconscious condition and was declared dead. He has further proved that on 29.01.2013 he alongwith Dr. Munish Wadhawan conducted postmortem on the body of Seema W/o Dharmender, aged about 27 years, female vide postmortem report which is Ex.PW11/B according to which a ligature mark was seen around neck with width 2.8 cm and circumference 23 cm, present above thyroid cartilage in the midline of neck running obliquely State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 24 upwards and backwards on both sides and absent at nape of neck. It was 6 cm below chin; 3.2 cm below right ear; 4.1 cm below left ear; the mark was dry, brownhish red, parchmentised; cut section shows glistening white subcutaneous tissue and no damage to neck muscles. He has proved that the cause of death was Asphyxia as a result of antemortem hanging. The Autopsy Surgeon has confirmed that the ligature material was not produced before him.
(54) It is writ large that though the postmortem report establishes that the cause of death was asphyxia as a result of antemortem hanging but it does not confirm whether the death was suicidal or homicidal. I have gone gone through the postmortem report and it is evident that there was no other injury on the body of the deceased except for the ligature mark which was placed obliquely. This confirms that the death was suicidal in nature. This being the background, I hold that the medical evidence on record is compatible to the prosecution case that the deceased Seema had committed suicide by hanging herself.
Forensic Evidence:
(55) The case of the prosecution is that after the postmortem of the deceased the viscera of the deceased was preserved and sent to the FSL. Sh.
Amar Pal Singh (PW12) the Assistant Director of FSL, Rohini, Delhi has proved the Chemical Examination Report which is Ex.PW12/A according to which after chemical, Microscopic and TLC examination, metallic poisons, ethyl and methyl alcohol, cyanide, phosphide, alkaloid, barbiturates, State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 25 tranquilizers and pesticides could not be detected in exhibits 1A (stomach & piece of small intestine with contents kept in a jar), 1B (pieces of liver, spleen and kidney, kept in a jar), 1C (blood sample volume 200 ml. approx, kept in a jar) and 1D (preservative sample, common salt solid, kept in a jar). Allegations against the accused: Allegations against the accused under Section 498A & 304B IPC (dowry death proximity test):
(56) The case of the prosecution that the marriage of Ms. Seema was solemnized with the accused Dharmender Sharma on 20.4.2008 after which she started residing at her matrimonial home along with the accused but soon after the marriage the deceased was being harassed for and on account of demand raised by the accused for cash and motorcycle. It is alleged that being fed up of the harassment caused by the accused Dharmender Sharma, Seema committed suicide by hanging herself on 28.1.2013. In this regard the prosecution has placed its reliance on the testimonies of Vinod Kumar (PW14) father of the deceased, Anil Kumar (PW15) brother of the deceased and Manju (PW17) mother of the deceased.
(57) Before coming to the discussion of the evidence adduced by the prosecution on merits, it is necessary to discuss the law in this regard.
In order to succeed in charge under Section 498A of the Indian Penal Code, the prosecution is required to prove that the accused had subjected the deceased to cruelty, as defined in the explanation to the section. It is not every cruelty which is punishable under Section 498A of the Indian State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 26 Penal Code. The cruelty, so as to attract penal provisions, contained in Section 498A of Indian Penal Code, has necessarily to be a willful conduct which is of such a nature that it is likely to drive a woman to commit suicide or cause grievous injury or danger to her life or health. The use of the expression "willful" in the explanation to Section 498A of Indian Penal Code indicates that the conduct attributed to the accused, in order to be culpable, needs to be deliberate, aimed at causing injury to the health of the woman or bringing misery to her. If the accused knows or is reasonably expected to know that his conduct is likely to cause injury to the life, limb or health of the aggrieved woman or if his conduct is of such a nature, that causing injury to the life, limb or health can be a natural consequence for the woman, who is recipient of such a conduct, it will attract criminal liability on the part of the husband or his relative, as the case may be. Everyone is presumed to intend the natural consequences of his act and such a presumption must necessarily be drawn even if there is no intention to cause any injury or harm to the woman. Whether the conduct in question is likely to drive the woman to cause injury to her life, limb or health, will depend upon a number of factors such as social and economic status of the parties, the level of awareness of the aggrieved woman, her temperament, state of her health, physical as well as mental and how she is likely to perceive such a behavior. If a woman is harassed with a view to coerce her or any of her relatives to meet any unlawful demand for any property or valuable security, it will also constitute cruelty, State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 27 as defined in the explanation to Section 498A of Indian Penal Code. (58) The expression "Cruelty" takes in its ambit mental cruelty as well as physical torture of the woman. If the conduct of the accused with a woman is likely to cause a reasonable apprehension in her mind that her living with the husband will be harmful and injurious to her life and safety, such a conduct would attract criminal liability, envisaged in Section 498A of Indian Penal Code.
(59) If the woman has been harassed on account of her failure or the failure of her relatives to meet an unlawful demand for property or valuable security, that also constitutes cruelty, within the meaning of Section 498A of IPC. The expression "harassment" has not been defined in Section 498A of IPC, but its dictionary meaning is to subject someone to continuous vexatious attacks, questions, demands or other unpleasantness, etc. However, it is not harassment of every nature which is punishable under section 498A of IPC. In order to attract criminal liability, there should be torture physical or mental, by positive acts. Such acts should be aimed at persuading or compelling the woman or her relatives to meet an unlawful demand of any property or valuable security or it should be actuated by the failure of the woman or her relative to meet such a demand.
(60) Further, in order to establish a charge under Section 304B of Indian Penal Code, which deals with what is described as "dowry death", State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 28 the prosecution must necessarily prove the following ingredients: i. The death of a woman must have been caused by burn or bodily injury or otherwise than under normal circumstance;
ii. Such death must have occurred within seven years of her marriage;
iii. Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband;
iv. Such cruelty or harassment must be for or in connection with demand for dowry;
v. Such cruelty or harassment is when to have been meted out to the woman soon before her death.
(61) The term "Dowry" has not been defined in Section 304B of IPC, but, since this expression has been defined in Section 2 of Dowry Prohibition Act, it is required to be given the same meaning for the purpose of under Section 304B IPC as held by Hon'ble Supreme Court in Satvir Singh & Ors. Vs. State of Punjab and Anr. reported in 2001 (4) Crimes 45. Section 2 of Dowry Prohibition Act defines dowry as under:
"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 parent 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 3 or any time after the marriage 4in connection with the marriage of the said parties, but does not include dower or mahr in the case or State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 29 persons to whom the Muslim Personal Law (Shariat) applies."
(62) Dowry would include that property or valuable security which is actually given or which is agreed to be given, in relation to the marriage of a person in question. The property or valuable security may be given or may be agreed to be given before marriage or at the time of marriage or at any time after the marriage, so long as it is connected with the marriage. However, there has to be a link between the property given or agreed to be given and the marriage. If at any time before or at the time of or even during marriage, the parents of a woman or any other person related or connected to her agree to give some cash, valuable security or property to her husband or inlaws after marriage, that also would be covered within the definition of dowry as the agreement or promise in such a case would be attributable to the marriage or proposed marriage and if there is demand for any cash property, valuable security etc. which is promised, but not given, it would constitute demand for dowry. If the husband of the girl or any other person related or connected to him, demands something from the girl or her parents or any other person related to or connected with her, saying that the articles being demanded by them were expected to be given or ought to have been given in marriage, that would also, to my mind, constitute demand of dowry because even though such an article may not have been agreed or promised to be given by the girl or her family State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 30 members, it might have been in the contemplation of the boy and/or his family members, on account of the expectation that such an article would be given at the time of marriage. Therefore, such demand would be considered to be a demand in connection with the marriage though made after the marriage has been solemnized. Even demand of articles such as T.V., fridge, jewellery, clothes, furniture, etc. which usually are given or expected in marriages in our country, would, considering the objective sought to be achieved by incorporating Section 304B in Indian Penal Code and enacting Dowry Prohibition Act, 1961 fall within the purview of Section 304B of Indian Penal Code.
(63) In the case of Pawan Kumar & Ors. Vs. State of Haryana reported in AIR 1998 SC 958, the Apex Court has specifically held demand of T.V., Fridge, etc. though not agreed to be given or promised or even demanded prior to or at the time of marriage, to be a demand for dowry for the purpose of Section 304B of IPC. If cash or some property, etc. is demanded by the boy or his family members, after marriage, saying that they were expecting such cash, property, etc. to be given in marriage, and the girl, or her parents or any other person related or connected to her promise to fulfill such a demand, that also may fall within the purview of dowry, as the promise though made after marriage, would nevertheless be referrable to the marriage, having been made with a view to preserve the marriage. In case, if the demand is made after marriage and it is in respect of a property or valuable security, which was not demanded, was not State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 31 expected to be given and also was not in contemplation at any time up to solemnization of marriage, demand of such cash, property or valuable security, etc. cannot be said to be in connection with the marriage and, therefore, would not constitute demand of dowry.
(64) In the case of Satvir Singh Vs. State of Punjab reported in 2001 (4) Crimes 45 while dealing with this issue, the Hon"ble Supreme Court, inter alia, observed as under:
"Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third is "at any time" after the marriage. The third occasion may appear to be an unending period. But the crucial words are "in connection with the marriage of the said parties". This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of "dowry". Hence the dowry mentioned in Section 304B should be any property or valuable security given or agreed to be given in connection with the marriage."
(65) In the case of Appasaheb and Anr. Vs. State of Maharashtra, reported in AIR 2007 SC 763, the Hon'ble Supreme Court observed as State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 32 under:
"...... In view of the aforesaid definition of the word "dowry" any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. It is well settled principle of interpretation of Statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning........ A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood.
The evidence adduced by the prosecution does not, therefore, show that any demand for "dowry" as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure....."State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 33
(66) The Indian Penal Code and the Dowry Prohibition Act are both remedial and penal statutes. As such Courts are expected to construe the provisions in a way that the purpose is fulfilled through and within the limits of language employed in the statute. If a case is established then the Courts are to be stringent in dealing with the culprits. The Courts while taking a stringent view and despite the obligation of the Legislature enactment a success have also to keep in mind that the charge should be made out. The main ingredients to be proved for establishing a case under Section 304B IPC are (i) unnatural death of a woman within seven years of her marriage and (ii) she being subjected to cruelty or harassment by her husband or any relative of her husband, in connection with any demand of dowry.
(67) The words "it is shown" occurring in section 304B IPC are of significance for the reason that the initial burden of proving that circumstances envisaged by Section 304B IPC do exist on the prosecution. This being shown or established, the question of presumption under Section 113B of the Evidence Act would arise. In other words, to draw a presumption under section 113B of the Evidence Act the necessary ingredient that it is shown that soon before her death she was subjected to cruelty or harassment in connection with the demand of dowry has to be proved. Only when these facts are proved then by virtue of the deeming provision of section 304B IPC, the Court shall presume that the husband State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 34 or any relative of the husband had caused dowry death. Though cruelty at any time after the marriage may cause depression in the mind of the victim, the cruelty and harassment envisaged by Section 304B is to be soon before the death of a woman.
(68) The Courts are required to scrutinize the evidence carefully because cases are not rare in which occasionally there is a demand and then the atmosphere becomes calm and quiet and then again there is demand. Where a wife dies in the house of her husband within a short span of seven years of her marriage, it is of considerable difficulty to assess the precise circumstances in which the incident occurred because ordinarily independent witnesses are not available as the torture and harassment is confined to the four walls of the house. The Courts are, however, required to be vigilant to scrutinize the evidence regarding the harassment and torture carefully if the witnesses are the relatives of the deceased and relations between them and her in laws are strained for any reason whatever it might be.
(69) Urge for living is a natural phenomenon in mankind. A person would not embrace death unless there is some psychological problem or mental agony or such circumstances that the person committing suicide may think that life he or she is living is more miserable than the pangs and agony of death. The power of tolerance would vary from person to person . Some persons try to make the life easy by tolerance while others even on petty points bring an end to their life. (Reliance can be placed upon the State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 35 judgment of the Rajasthan High Court reported as Gurditta Singh Vs. The State of Rajasthan reported in 1992 Crl. L.J. 309).
(70) The importance of proximity test is 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 113B Evidence Act is pregnant with the idea of proximity test. No definite period has been indicated and the expression "soon before" used in Section 113B of the Evidence Act, Illustration (a) of the Act is relevant. The determination of the period which can come within the term "soon before" is left to be determined by the Courts, depending upon the facts and circumstances of each case. Suffice, however, to indicate that the expression "soon before"
would normally imply that the interval should not be too much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the concerned death. If the 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.
(71) It is well settled by several judgments that mere suspicion cannot be a substitute for proof of guilt. In the case reported as State of Punjab Vs.. Bhajan Singh and Ors., reported in AIR 1975 SC 258, it was State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 36 observed by Hon'ble Supreme Court of India as under: "......... The circumstances of this case undoubtedly create suspicion against the accused. Suspicion, by itself, however strong it may be, is not sufficient to take the place of proof and warrant a finding of guilt of the accused....."
(72) In another case reported as Kali Ram Vs. State of Himachal Pradesh reported in AIR 1973 SC 2773, it was observed by Hon'ble Supreme Court of India as under: ".......Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of this innocence, the court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the court entertains reasonable doubt regarding the guilt of the accused, the accused must have benefit of that doubt........
It needs all the same to be reemphasized that if a reasonable doubt arises regarding the guilt of the accused, the benefit of that cannot be withheld from State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 37 the accused. The courts would not be justified in withholding that benefit because the acquittal might have an impact upon the law and order situation or create adverse reaction in society or amongst those members of the society who believe the accused to be guilty. The guilt of the accused has to be adjudged not by the fact that a vast number of people believe him to be guilty but whether his guilt has been established by the evidence brought on record. Indeed, the courts have hardly any other yardstick or material to adjudge the guilt of the person arraigned as accused...."
(73) In another case reported as AIR 1973 SC 2622, it was observed by Hon'ble Supreme Court of India as under : "...... Certainly it is a primary principle that the accused must be and not merely may be guilty before the court can convict and the mental distinction between "may be" and "must be" is long and divides vague conjectures from sure consideration....."
(74) Further more, in another case reported as Mousam Singha Roy & Ors. Vs. State of West Bengal, reported in 2003 (3) JCC 1358, it was observed by Hon'ble Supreme Court as under : ''......Before we conclude, we must place on record the fact that we are not unaware of the degree of agony and frustration that may be caused to the society in general and the families of the victims in particular, by the fact that a heinous crime like this goes unpunished, but then the law does not permit the courts to punish the accused on the basis of moral conviction or on suspicion alone. The burden of proof State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 38 in a criminal trial never shifts, and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. In a similar circumstance this Court in the case of "Sarwan Singh Rattan Singh Vs State of Punjab (AIR 1957 SC 637) stated thus:
It is no doubt a matter of regret that a foul cold blooded and cruel murder should go unpunished. There may also be an element of truth in the prosecution story against the accused. Considered as a whole, the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted....."
(75) It is also a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused.
(76) Applying the settled principles of law to the facts of the present case, at the very Outset I may observe that the statements of parents of the deceased i.e. Vinod Kumar (PW14) and Smt. Manju (PW17) have been recorded at the first instance by the Tehsildar/ Executive Magistrate Heera Lal (PW13) who has recorded a joint statement of the parents of the deceased which is Ex.PW13/A. The manner in which the said statement has been recorded is highly improper. It is evident from the record that soon after the incident on receipt of the information the SDM State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 39 concerned neither visited the spot nor inspected the dead body. Rather the inquest proceedings were entrusted to Heera Lal (PW13) the Tehsildar/ Executive Magistrate who very casually recorded the joint statement of the parents of the deceased on the basis of which the present FIR was registered, which statement I reproduce as under:
"..... Hum dono apne bayan me kehna chahte hain ki hamari larki ki shadi hua 4 ½ varsh ho chuke hain.
Meri larki ko mera damaad kehta tha ki tere gharwalon ne motorcycle va cash nahin diya, Vah barbar dahej ki maang karta tha. Vah sab humne dene se mana kar diya, hume shak hai ki inhone dahej lene ke liye ise marwa diya hai. Hum karyawahi karvana chahte hain. Bayan sun liya, padh liya thik paya....."
(77) The above statement was recorded by the Tehsildar/ Executive Magistrate Heera Lal on 29.1.2013 i.e. the date next to the death of the deceased and on the basis of the same the FIR was registered. As evident, there are no specific mention in the said statement with regard to the amount of demand raised, the time and place when the said demand was raised; the witness before whom such a demand was made; what was the harassment caused to the deceased on account of non fulfillment of the said demand.
(78) The reason why the Legislators had entrusted the responsibility of the inquest to senior officers is to ensure that serious investigations are conducted into the unnatural death of young woman soon after the State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 40 marriage but the manner in which the Executive Magistrate i.e. Tehsildar (not the SDM) had conducted the proceedings in not visiting the spot of incident nor preserving the scene of crime nor inspecting the body of the deceased and thereafter by getting recorded a joint statement of the parents of the deceased, shows the kind of indifference to the issue in question. (79) Secondly coming to the testimonies of the parents and brother of the deceased i.e. Vinod Kumar (PW14), Anil Kumar (PW15) and Manju (PW17), a joint reading of the testimonies of all these witnesses would show that all the allegations made by them are non specific and vague. Rather, Smt. Manju (PW17) in her testimony made to the Court has only stated that there was some dispute between her daughter Seema and her husband i.e. accused Dharmender on some issues but she does not know what those issues were and has rather clarified that there was some dispute about motorcycle and she does not know anything else. It is only on leading questions put by the Ld. Addl. PP for the State that she admits that in the statement to the Executive Magistrate she had raised a suspicion on the accused. The relevant portion of her testimony is as under:
"........ At this stage Ld. Addl. PP seeks permission to put leading question to the witness regarding name of the accused.
Heard. Permission is granted.
It is correct that I had given the name of my son in law Dharmender in the statement recorded by the Tehsildar vide Ex.PW13/A as the person who had demanded cash and motorcycle from my daughter. I State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 41 do not know if I had stated in my statement Ex.PW13/A that when we had refused to give cash and motorcycle to the accused, we raised suspicion that due to not giving the cash and motorcycle to accused Dharmender, he got her killed...."
(80) I am sure that if the demand so raised and the consequent harassment was so great that it led to the deceased committing suicide, the same would have been stated by the witness at the first instance and there would have been no occasion for the prosecution to be leading the witness as regards the said aspect.
(81) Thirdly in so far as the father Vinod Kumar (PW14) is concerned he has similarly stated that the accused had made a demand of cash and motorcycle. When asked to explain the amount of cash he stated that the accused had demanded Rs.50,000/ but no where in his earlier statements either to the Executive Magistrate or to the police specified the same. However, in so far as Anil Kumar (PW15) is concerned he has come up with an altogether new story. According to him, at the time of the marriage his family planned to give a Platina motorcycle but the accused wanted a Pulsor motorcycle on account of which the deceased Seema was being harassed. Here, I may note that the family of the deceased has specifically stated that a son was also born to the deceased two years prior to the incident. While on the one hand Smt. Manju (PW17) states that this demand of motorcycle was made at the time of birth of male child whereas Vinod Kumar and Anil Kumar stated that this demand was raised at the State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 42 time of marriage. This is a material contradiction in their testimonies. (82) Fourthly I may observe that the death of the deceased had taken place after Four Years and Nine Months of her marriage and during this period one son was also born to her. There were no complaints either to the police or to the Mediator of the marriage or any other relative or competent authority regarding any kind of harassment caused to the deceased Seema. Further, at no point of time on account of the harassment the deceased had come back to her house or the family of the deceased had got her treated for any kind of physical harassment so caused to her as is being alleged. The statements regarding the harassment and demand are vague and non specific as regards place and time. It has been vehemently argued by the Ld. Defence Counsel that the parents of the deceased were compelling the accused to marry the sister of the deceased and it is for this reason that in order to pressurize the accused they are pursuing this case and have got the FIR registered on false allegations and also compromised with the family of the accused which compromise deed is Ex.PW14/DX1. Given the circumstances the defence raised by the accused regarding the pressure being put to marry the sister of the deceased to the accused cannot be ruled out.
(83) Fifthly it is also admitted by the father of the deceased i.e. Vinod Kumar (PW14) and brother of the deceased i.e. Anil Kumar (PW15) that the marriage had been arranged through a Mediator namely Om Prakash. However, the Mediator Om Prakash was neither cited as a State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 43 witness nor examined in the Court. In so far as the Investigating Officer is concerned, he was aware that marriage was arranged through the Mediator. I am sure if there would have been any problem in the marriage the Mediator would have been informed about the same which is not the case.
(84) Sixthly the neighbour of the accused namely Ram Avtar (PW16) has stated that he had heard the loud noise of crying from the house of Ram Shanker bearing No. N27 on which he reached the said house and inquired from them as to what had happened on which they told him that condition of their daughter in law Seema was bad on which he along with another boy immediately shifted Seema to SGM hospital where she was declared brought dead. He has only stated that the inlaws of the deceased were present at the house at that time and there was nobody else. It is evident from the above testimony that the area where the deceased was staying was a congested locality and in case of any incident of physical violence or harassment either verbal or physical, the same would be easily audible or visible to the neighbours. I am sure if there was an incident of physical harassment of beating or dowry demand as being claimed by the family of the deceased, the neighbours of the deceased where she had stayed for more than four and a half years would have been aware of the same and would have deposed of it, which is not the case. Ram Avtar has only deposed about the incident and says nothing about the incident of harassment etc. State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 44 (85) Lastly it has also come on record that soon after the incident a compromise was effected between the family on 4.3.2013 i.e. a week after the incident, which compromise deed is Ex.PW14/DX1 had been put to the witness Vinod Kumar who has admitted his signatures on the same. This compromise deed was reportedly given to the SHO Police Station Sultan Puri and the parents of the deceased namely Vinod Kumar and Smt. Manju and the brother of deceased i.e. Anil Kumar had specifically informed the SHO that they had given the statement to the Executive Magistrate and made allegations of demand of Rs.50,000/ and motorcycle only on account of being aggrieved by the death of the deceased and also being misled by the persons present there whereas actually there was no such demand and hence did did not want any action against the accused. According to Anil Kumar he is totally illiterate and had put his signatures at Police Station on 4.2.2013 whereas Vinod Kumar says that he had probably signed the same in the Police Station or at his house. The relevant portion of this Compromise Deed is as under:
"........ Main Vinod Kumar Sharma S/o Sh. Sone lal Niwasi gaon Gazipur G8 Patni Manju Devi Putr Anil Sharma Hum tino is shapath Patr ke jariya ikrar karte hai ki hamari Beti ki Shadi Dinak 20 April 2008 ko Dharmender Sharma S/o Shri Ram Shankar Sharma Niwasi H27 Krishan Vihar Delhi 86 je Sath hindu riti rivaj se hui thi Putri Seema aakashmik mritu dinak 28/01/13 ko mili hai Shadi se lekar uske Pati aur sasural walo ki taraf se koi dahej ki mang nahi thi. Kal dinak 29/01/13 ko mane meri patni State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 45 manju ne logo ke behkawe me SDM ke samne Damad Dharmender Sharma va Parivar Walon ke khilaf Mukadma no. 90/13 Thana Sultanpuri me darj karaya Aur main apne poore hos hawas aur parivar ki salah se is natija par paucha hu Damad Dharmender ke alawa kisi aur sasural walon ke khilaf mukedme me jhuta nam nahi lunga ab hum dono parivar walo ne samaj ke beech main beth kar ye teh kiya hai ki Seema ki shadi se lekar ab tak jo be dhan veh stridhan hamari aur se lagi usko deno Dharmender Sharma va unka Parivar wapis dene ko razi hai. Jo Saman main aur mere parivar le raha hun 1 Bed 2. Almari 3. Dressing Table 4. Fridge 5. TV CD Player
6. 5gm Anguthi Sone ke 7. 250 gm Pajeb Chandi ki 8. 5gm Kundal Sone ke 9. ek Nak ki veser Sone ki 10. Lady anguthi Sone ke/ Bache ke Chhuchak ka saman
1. 1 Tole ki chain sone ke 2. om sone ka 4. kandni Chandi 5. Kadhwa hath ke Chandi 6. Khadwa Paer ke Chandi 7. gale Set 8. Dhai lakh rupey jo Shadi main kharch hua tha Nagad parapt kar raha hun 2 keel nak sone ke yeh uprokth faisla main bina kisi dabav veh lalach ke ham dono parivaro ke beech huwah hai veh mohoday main ladke ke khilaf derj mukedma ko bhi nayayalaya se radh kar wane ke liya main wer mera parivar purn tayar sehyog karenge....."
(86) It stands established from the above that during this period after the death of their daughter they had entered into a compromise with the accused wherein the family of the deceased had expressed their desire not to pursue the litigation claiming that they have made false allegations being misled by pubic persons.
State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 46 (87) I may observe that 'Harassment' as contemplated under Section 498A Indian Penal Code includes both Mental and Physical. However, the postmortem report of the deceased does not show any sign of injury on the body of the deceased to substantiate the allegations that she had been beaten before the incident. Not every case of unnatural death of a woman within seven years of marriage is on account of harassment or demand of dowry. There can be many other reasons which can be attributed to this extreme act committed by the deceased/ victim compelling her to take her own life which would be peculiar to each case. In the present case it is clear from the evidence which has come on record in the form of oral testimonies of the prosecution witnesses that the deceased Seema had committed suicide by hanging herself at her matrimonial home after more than four and a half years of marriage with no background of any other complaint of harassment. The prosecution has miserably failed to relate the same to any dowry related harassment by the accused Dharmender Sharma. Also, the prosecution has failed to establish any proximity or live link between the death of Seema or any misconduct by the accused. I am, therefore, of the considered opinion that the prosecution has not been able to establish the role of the above accused in the commission of the alleged crime beyond reasonable doubt nor there is anything on record to show that the deceased had taken the extreme step of committing suicide on account of conduct of the accused or cruelty inflicted upon her. State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 47 FINAL CONCLUSIONS (88) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra reported in AIR 1984 SC 1622 the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
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 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.
(89) Applying the settled principles of law to the facts of the present case it is evident that the identity of the accused Dharmender Sharma who is the husband of the decease Seema stands established. It also stands established that the marriage of the deceased Seema was solemnized with the accused Dharmender Sharma on 20.4.2008 as per State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 48 Hindu rites and customs after which she started residing at her matrimonial house at House No. N27, Krishan Vihar, Sultan Puri, Delhi and she died an unnatural death (hanging) on 28.1.2013 i.e. within Four Years, Nine Months and Eight Days of marriage and the cause of death was due to asphyxia as a result of antemortem hanging which is suicidal in nature.
(90) However, the allegations against the accused Dharmender Sharma of infliction of cruelty or causing harassment to the deceased in connection with demand of dowry, do not stand established beyond reasonable doubt. The deceased had committed suicide at her matrimonial house but prosecution has miserably failed to relate the same to any dowry related harassment by the accused persons. Also, the prosecution has failed to establish any proximity or live link between the death of Seema or any misconduct by the accused. I am, therefore, of the considered opinion that the prosecution has not been able to establish the role of the above accused in the commission of the alleged crime beyond reasonable doubt nor there is anything on record to show that the deceased had taken the extreme step of committing suicide on account of conduct of the accused. (91) I hereby hold that the circumstances reflected from the material on record do not stand conclusively established. The facts are also are not consistent only with the hypothesis of the guilt of the accused. The chain of evidence is not so much complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 49 accused persons. The material brought on record by the prosecution are insufficient to hold that each of the accused was guilty beyond reasonable doubt. Further, each circumstance has not been proved beyond reasonable doubt. The prosecution has also not been able to establish a conclusive link connecting each individual circumstance with the other, and the accused. Crucially, the material and evidence on the record do not bridge the gap between "may be true" and must be true" so essential for a court to record a finding of guilt of the accused. Therefore, I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused Dharmender Sharma, beyond reasonable doubt and hence, benefit of doubt is being given to them who is acquitted of the charges under Section 498A/304B Indian Penal Code. His surety be discharged as per rules.
(92) File be consigned to Record Room. Announced in the open court (Dr. KAMINI LAU) Dated: 26.8.2014 ASJII(NW)/ROHINI State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 50 State Vs. Dharmender Sharma FIR No. 90/2013 PS Sultan Puri 26.8.2014 Present: Ld. Addl. PP for the State.
Accused Dharmender Sharma in JC with Sh. P.S. Ranga Advocate.
Heard oral arguments/ clarifications. Be listed for orders at 4:00 PM.
(Dr. Kamini Lau)
ASJII(NW)/ 26.8.2014
4:00 PM
Present: Ld. Addl. PP for the State.
Accused Dharmender Sharma in JC with Sh. P.S. Ranga Advocate.
Vide my separate detail order dictated and announced in the open court, the accused Dharmender Shamra is acquitted of the charges under Section 498A/304B Indian Penal Code. His surety be discharged as per rules.
File be consigned to Record Room.
(Dr. Kamini Lau) ASJII(NW)/ 26.8.2014 State Vs. Dharmender Sharma, FIR No. 90/13, PS Sultanpuri Page No. 51