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Delhi District Court

State vs . Mukesh Kumar Sharma on 3 October, 2012

IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE­
               II (NORTH­WEST): ROHINI COURTS: DELHI


Session Case No. 29/2010
Unique Case ID No.: 02404R0119962010

State                          Vs.                               Mukesh Kumar Sharma
                                                                 S/o Sh. Raj Kumar
                                                                 R/o A­60, Gali No. 2,
                                                                 Part­1st, Mukundpur,
                                                                 Delhi
                                                                 (Acquitted)


FIR No.:                                      29/2010
Police Station:                               Bhalswa Dairy
Under Sections:                               304­B/498­A Indian Penal Code


Date of committal to session Court:                              12.07.2010

Date on which judgment was reserved:                             28.9.2012

Date on which judgment was announced:                            3.10.2012



JUDGMENT:

(1) As per the allegations the marriage between the accused Mahesh Kumar Sharma and Julie (deceased) was solemnized on 9.6.2008 at Bihar after which the accused along with the deceased shifted Delhi and started residing at A­60, Gali No.2, Part­1, Mukundpur, Delhi on rent. It is alleged that the accused Mukesh Kumar Sharma being the husband of St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 1 of 63 Smt. Julie subjected her to cruelty by harassing her to fulfill his unlawful demand of dowry and also maintaining illicit relations with a lady residing in the neighbourhood. Further, it is alleged that on 7.3.2010 at 4:30 PM Smt. Julie was found dead under unnatural circumstances within seven years of marriage and soon before her death, she was subjected to cruelty and harassment by the accused in connection with demand of dowry.

BRIEF FACTS/ CASE OF THE PROSECUTION:

(2) The case of the prosecution is that on 7.3.2010 DD No.12­B was received at Police Station Bhalswa Dairy at about 11:40 AM that the death of Julie had occurred on the intervening night at her house at Mukundpur, Part­I, gali opposite PNB Bank. Pursuant to the said information SI Rajender Singh reached the spot where he found the dead body of Julie lying on the floor and the maternal uncle of the deceased Mahesh Sharma was present there who informed the Police that the death of Julie was caused due to poisoning and he suspected that she was murdered. During inquiries SI Rajender Singh came to know that the marriage of Julie had taken place two years back after which he informed the area SDM who directed him to bring the parents of the deceased to his office. Thereafter the dead body of Julie was sent to BJRM Hospital for postmortem examination. On 9.3.2010 Bilas Mistri the father of the deceased had appeared before the SDM Sh. M.P. Kushwaha who recorded St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 2 of 63 his statement.

(3) In his statement to the SDM Bilas Mistri had stated that his daughter Julie was married to the accused Mukesh Kumar Sharma about two years back. About five months back the accused brought Julie to Delhi and started residing at A­60, gali No.2, Part­1, Mukundpur.

According to Bilas Mistri, after one month his daughter started complaining to her mother and bhabhi that the accused was having an illicit relations with the wife of a compounder who was residing in the neighbourhood. He further told the SDM that he tried to make the accused understand despite which the accused continued to harass his daughter which fact his daughter used to tell her Bhabhi. Bilas Mistri had also stated that he had given Rs.11,000/­ for purchasing a motorcycle about 2­3 months prior to the incident but his daughter informed that the accused had purchased the said motorcycle either in the name of compounder or his wife. The father of the deceased had told the SDM that on 6.3.2010 at about 6:15 PM the accused Mukesh Kumar Sharma made a call on the phone of his son Sujit and told him that he would get his sister married to some other person on that day itself after the phone was disconnected. According to Bilas Mistri, on 7.3.2010 AM his son Sujit informed that he had received a telephone call from Mukesh Sharma that Julie had expired on which he came to Delhi.

(4) On the basis of statement of Bilas Mistri the present case was got registered on 10.3.2010 and the accused Mukesh Kumar was arrested. St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 3 of 63 After completion of investigations charge sheet was filed in the Court through the SHO.

CHARGE:

(5) Charges under Sections 498­A and 304­B Indian Penal Code were settled against the accused to which he pleaded not guilty and claimed trial.

EVIDENCE:

(6) In order to prove its case the prosecution has examined as many as Fifteen Witnesses as under:

Public witnesses/ complainant:

(7) PW6 Bilas Mistri is the father of the deceased who has deposed that he had six daughters (including his deceased daughter Julie) and two sons and his daughter Julie was 5th child. According to him, in the age of 18 years he got his daughter Julie married to accused Mukesh Sharma R/o Village Bakiya Ranichak, PS Guru Bazar, Distt. Kathiyar, Bihar. He has further deposed that about six months prior to her death, her husband Mukesh brought her to Delhi and they were residing at A­60, Mukundpur, Delhi on rent in the house of Smt. Bano W/o Munna. The witness has further deposed that after her arrival at Delhi, his daughter within two months told to his son and daughter in law on phone that her husband used to harass her and that Mukesh was having illicit relations with the St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 4 of 63 wife of compounder who was residing in the same premises in a room on rent which fact his son and daughter in law told to him. The witness has testified that his daughter made complaints in this regard so many times and also tried to make his son in law accused Mukesh understand on phone but nothing changed in the behavior of accused Mukesh and he continued to harass his daughter and also having terms with the wife of compounder. According to the witness, after the six months of the marriage, they had given Rs.11,000/­ to his son in law for purchasing motorcycle and about three months prior to her death, Julie told on phone that the motorcycle was purchased by the accused Mukesh but it was in the name of that compounder or his wife. He has further deposed that on 06.03.10, at about 6:00/6:15 PM, his daughter Julie told on phone to his son Sujit that Mukesh told her that she will get her remarried today itself and these words were uttered by her while weeping and his son told about the version uttered by his daughter on which he tried to make various calls to his daughter for talking to her but the phone was disconnected. He has testified that on 07.03.10 at about 6:00 AM, accused Mukesh telephoned to his son Sujit that Julie expired and his son told him these facts on which he came to Delhi on 09.03.10 and the Magistrate met him and took him in a office where he recorded his statement which is Ex.PW2/A. The witness has proved having identified the dead body of his daughter in the hospital and his statement to this effect was recorded vide Ex.PW2/F. He has also proved that the dead St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 5 of 63 body of his daughter Julie was handed over to him after postmortem vide Ex.PW6/A. According to the witness, on 10.03.2010 accused Mukesh Sharma was apprehended by the police and he identified the accused before the police after which the accused was arrested vide memo Ex.PW6/B and his personal search was conducted vide memo Ex.PW6/C after which the statement of the accused was recorded by the police. He has correctly identified the accused Mukesh Sharma in the Court.

(8) In his cross examination the witness has deposed that he does not remember the date, month and year of marriage of his deceased daughter Julie with accused. According to him, after one month of the marriage, accused came to Delhi for earning livelihood and the accused visited the village at the time of Gauna after one year of his marriage. He has deposed that accused after Gauna ceremony took his daughter first to his village and remained there for about one­two months along with his daughter. He has also deposed that he gave Rs.11,000/­ when accused visited after about six months of his marriage and he expressed his desire to purchase a motorcycle at Delhi. The witness has further deposed that he does not know the cost of the motorcycle. According to him, the accused purchased a motorcycle about three­four months prior to death of his daughter Julie but he is unable to tell the month and date. He has further deposed that he asked after giving the money whether accused had purchased motorcycle or not. He has admitted that his daughter had not directly told him that accused had purchased motorcycle in the name of St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 6 of 63 wife of doctor/ compounder and he was roaming with his wife on the motorcycle and has voluntarily explained that these facts were disclosed to his son Sujit who later on told all this to him. The witness has testified that he never visited Delhi to meet his deceased daughter during her lifetime. He has admitted that neither his son Sujit nor his wife Smt. Lalmani Devi visited Delhi during the lifetime of his daughter. According to the witness, he does not know the name of place but it was office of SDM where his statement was recorded and states that the same was recorded at about 11:00 AM or 12:00 noon. He has testified that his statement was recorded by SDM only once and no other person recorded his statement except SDM. The witness has also deposed that he had not taken the motorcycle after the death of his daughter nor he made efforts to know in whose name the accused had purchased the motorcycle. He has denied the suggestion that his son never told him that his daughter given telephonic calls regarding the harassment and further denied that he made statement to the SDM mainly on the basis of suspicion of illicit relationship of his son in law i.e. accused.

(9) PW10 Smt. Lal Mani Devi is the mother of the deceased who has deposed that her daughter Julie was married to Mukesh Kumar two years back and after marriage his daughter Julie resided at her matrimonial house at Village Bakiya. She has further deposed that after five­six months Julie was brought to Delhi by her husband Mukesh Kumar. She has alleged that accused Mukesh Kumar used to harass her St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 7 of 63 daughter for motorcycle and her husband gave Rs.11,000/­ to accused Mukesh Sharma for purchasing motorcycle. She has also deposed that accused Mukesh was residing with a lady namely Mala with whom he was maintaining illicit relation and after her husband had given him Rs. 11,000/­ he purchased a motorcycle in the name of Mala on which her daughter objected and there was a quarrel between her daughter and accused Mukesh. She has testified that her daughter informed her daughter in law i.e. wife of her son Sujit about this quarrel and told her everything in detail. According to her, on 6th day of the month after Holi two years ago they received a telephone call in the late hours from her son in law Mukesh informing about death of her daughter. The witness has deposed that she could not believe it because on the same day evening her son Sujit had spoken to her daughter Julie on telephone and therefore it was impossible that she could have expired at the same time. She has correctly identified the accused Mukesh Kumar in the Court. (10) In her cross examination the witness has deposed that she does not remember the date, month and year of marriage of her daughter Julie with accused Mukesh Kumar but states that it took place in the Hindi month of "Baisakh" and she was illiterate person and cannot read or write. She has further deposed that she left for Delhi on 7th day and reached Delhi on the 9th day of the month in which her daughter expired. She has admitted that Julie used to talk with her sister in law and she never gave her any telephonic call. She also does not remember the date, St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 8 of 63 month and year when Julie was brought to Delhi by accused Mukesh but states that she was brought to Delhi in the month of Kartik after "Chhat Pooja". The witness has further deposed that accused Mukesh demanded motorcycle from Delhi but she is unable to tell the date, month and year when accused Mukesh demanded money for motorcycle. She has admitted that her daughter in law namely Mamta informed her that money for motorcycle was being demanded by accused Mukesh. The witness has testified that she, her husband, her son and daughter in law never visited the resident of Julie at Delhi. She has admitted that her daughter in law also told her that Mukesh was having illicit relationship with Mala wife of compounder who was residing in the same premises as tenant. According to her, she had not seen the registration documents of motorcycle purchased by accused Mukesh Kumar Sharma nor she is aware about the cost of the motorcycle. She does not remember whether police recorded her statement or not. The witness has deposed that she had not visited Delhi after the death of her daughter. She has denied the suggestion that accused Mukesh Kumar Sharma had never demanded money for motorcycle or that since no money was demanded, that is why she was unable to tell the date, month and year of the alleged demand. She has denied the suggestion that Julie was suffering from Stomach Ache and was under the treatment.

(11) PW11 Smt. Mamta is the sister in law (Bhabhi) of the deceased who has deposed that her Nanand Julie was married to accused St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 9 of 63 Mukesh Kumar on 09.06.2008 after which Julie went to her matrimonial house at Village Bakiya, District Bhagalpur, Bihar with accused Mukesh Kumar and after five months of her marriage she came to Delhi alongwith accused Mukesh Kumar and stated residing in Delhi with her husband i.e. accused Mukesh Kumar Sharma. She has further deposed that after one month of her reaching at Delhi, Julie told her on telephone that the accused Mukesh Kumar was harassing her as he was demanding Rs. 11,000/­ for motorcycle and her father in law Sh. Bilas gave Rs.11,000/­ to accused Mukesh for motorcycle. She has testified that accused Mukesh Kumar purchased a motorcycle and Julie told her that accused Mukesh did not purchase the motorcycle in his name or in her name but he purchased the same in the name of wife of a doctor who was residing in the neighbourhood and Mukesh was having illicit relationship with that lady. She has also deposed that Julie had informed her that accused Mukesh was moving around with that lady and when Julie told her about the aforesaid facts she was disturbed. The witness has also deposed that on 06.03.2010 at about 4.00 PM she received a telephone call form Julie who told her that whenever she objected to accused Mukesh about his above said acts, he gave beating to her. She has further deposed that Julie wanted to talk with her brother Sujit but he was not available at that time and on the same day at about 7.00PM she received another telephone call from Julie when her husband Sujit talked with Julie and thereafter accused Mukesh also talked with her husband Sujit . According to the St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 10 of 63 witness, Mukesh told her husband Sujit that Julie will be get married again. She has testified that on the next morning on 07.03.2010 at about 6.00AM they received a telephone call from accused Mukesh who informed that Julie was dead on which her father in law, mother in law and her husband Sujit came to Delhi. She has correctly identified the accused Mukesh Kumar in the Court.

(12) In her cross examination by the Ld. Defence Counsel, the witness has deposed that she was married with Sujit one month prior to the marriage of Julie with accused Mukesh. She has admitted that after the marriage Julie resided at her matrimonial house at Village Bakia and that Julie stayed at her matrimonial home at village Bakia for about one and half year after her marriage. The witness has also admitted that accused Mukesh left for Delhi after one month of his marriage as he was working in Delhi as a carpenter and that Julie was left at Delhi by the husband of her other Nanad. She has denied the suggestion that accused Mukesh remained in Delhi and he never visited Village Bakia or Village Naya Tola Telgi Bihar and has voluntarily explained that after the marriage he had come to the village Naya Tola Telgi to meet them on one or two occasions. She is unable to tell the date, month and year when Julie was left at Delhi by the husband of her other Nanad and has voluntarily explained that she was at her parental house at that time and came to know from Julie only when when she talked to her from Delhi. She has admitted that Julie suffered a paralytic attack and received St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 11 of 63 treatment at Village Bakia, Village Naya Tola Telgi and at Delhi. She has further deposed that she came to Delhi on 13.03.2010 after the death of Julie for her statement which statement was recorded at the police station. She has testified that she had stated to the police in her statement that accused Mukesh told Sujit on telephone that Julie will get married again. However, when confronted with her statement Ex.PW11/DA the said fact was not found so recorded. The witness has deposed that she does not remember whether she had stated to the police that Julie had made telephonic call two times on 06.03.2010 nor does she remember the date when Julie told her on telephone that accused Mukesh was harassing her. She has also deposed that Julie told her that her father gave Rs.11,000/­ to her husband Mukesh. According to the witness, she had not asked her father in law or mother in law about this payment. The witness has testified that she had told to the police in her statement that Julie informed her that whenever she objected the acts of the accused Mukesh he gave beatings to her. However, when confronted with her statement Ex.PW11/DA the said fact was not found so recorded. She has also deposed that before the death of Julie she, her father in law, mother in law and her husband had not visited Delhi to the house of Julie and accused Mukesh. The witness has further deposed that she had told to the police in her statement that Julie informed that accused Mukesh was having an illicit relationship with wife of a doctor. However, when confronted with her statement Ex.PW11/DA it was not found so recorded but it had been St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 12 of 63 recorded that accused was having illicit relationships with the wife of a Compounder. She has denied the suggestion that accused Mukesh Kumar Sharma had never demanded money for motorcycle or that since no money was demanded, that is why she was unable to tell the date, month and year of the alleged demand. She has further denied the suggestion that Julie was suffering from Stomach Ache and was under the treatment due to which reason she died her natural death.

(13) PW12 Sh. Maheshwar Sharma @ Mahesh Sharma is the Maternal Uncle (Mama) of the deceased who has deposed that he was a carpenter by profession and her bhanji Julie was married to the accused Mukesh Sharma in the year 2008. He has further deposed that Julie was residing at H. No.A­60, Gali No.2, Mukundpur, Delhi with his husband accused Mukesh Sharma since last six month prior to her death. According to him, on 07.03.2010 he received a call from Sh. Bilas Sharma, father of Julie to see the condition of Julie at the above said address. He has further deposed that he went to the above said address and saw the dead body of Julie and "Jhag" (discharge) was coming out from the nose and mouth of the dead body of Julie and her face become black. He has further deposed that on suspicion he immediately called police at 100 number by his mobile phone bearing no. 9971421005 and police reached at the spot and conducted their proceedings and the dead body was taken for postmortem. The witness has also deposed that on 09.03.2010 father and brother of deceased Julie reached at Delhi and St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 13 of 63 postmortem was conducted on the dead body of Julie on that day after which the dead body was handed over to them and he identified the dead body of Julie vide Ex.PW12/A. He has proved that the dead body was received vide receipt Ex.PW6/A and he had shown the place to the police where he found the dead body of Julie. He has correctly identified the accused Mukesh Kumar in the Court.

(14) In his cross examination, the witness has deposed that he is unable to tell the number of children of his sister Lal Mani as he had no visiting terms with them. He has admitted that he had not attended the marriage of Julie and further admitted that he had not visited his sister's village for the last about 22 years and has voluntarily explained that his sister used to visit his house at his village. The witness has admitted that prior to receipt of call 07.03.2010 he was not aware whether Julie was residing in Delhi. According to the witness he had told the police in his statement that "Jhag" was coming out from the nose and mouth of the dead body of Julie and her face become black. However, when confronted with his statement Ex.PW12/DA where the said fact was not found so recorded. He has denied the suggestion that he had not visited the spot and further denied that he had been planted as a witness. (15) PW14 Sujit Sharma a carpenter by profession is the brother of the deceased who has deposed that his sister Julie was married with Mukesh Sharma in the month of July 2008 at their village. The witness has also deposed that after five months of the marriage Mukesh Sharma St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 14 of 63 brought Julie to Delhi and residing at H. No.A­60, gali no.2, Part 1, Mukundpur Delhi on rent basis. According to him, his sister Julie used to talk with him on phone and she told him that Mukesh Sharma was usually talked with one neighbour Mala and had a bad behaviour with her (Julie) and had not liked her. According to the witness, on 06.03.2010 at about 6:15 PM Mukesh Sharma telephoned to him and told him that his sister Julie would be married to another person and thereafter, phone was switched off. He has further deposed that he tried to contact with Mukesh Sharma and his sister Julie but he was unable to contact them after which he informed his father and told him to make call to Mukesh Sharma and Julie but his father was also unable to contact Mukesh and Julie. According to him, on the next morning on 07.03.2010 at about 6:00 AM, Mukesh Sharma informed him on phone that Julie had expired on which he informed to his father and thereafter his father and mother went to Delhi and he himself also reached Delhi on 13.03.2010. He has correctly identified the accused Mukesh Sharma in the Court.

(16) With the permission of the Court, leading questions were put to the witness by the Ld. Addl. PP for the State wherein the witness has admitted that when Mukesh Sharma told him on phone that he would marry his sister Julie with another person then his sister Julie told him while weeping that "Dekho Mere Bare Main Kya Kahe Rahen Hain" and thereafter the phone was disconnected.

St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 15 of 63 (17) In his cross examination, the witness has deposed that his marriage took place in the month of May 2008. He has admitted that after some days of the marriage of accused Mukesh with his sister Julie, he went to Delhi. He has testified that at the time of Gauna of his sister, he was not present at his village so he is unable to tell whether accused Mukesh only once came at their village to take his sister after his marriage and before the death of his sister Julie and has voluntarily explained that he was residing at Chennai at that time when the Gauna was performed. The witness has deposed that he does not remember the date when he went to Chennai but states that he came back to his village from Chennai 20­25 days prior to the death of his sister Julie. He also does not remember the mobile number of Mukesh Sharma or Julie on which he contacted at Delhi and whether his family members informed him that the accused Mukesh Sharma came at the village for Gauna only once when he returned back from Chennai. He has testified that he talked to Mukesh and Julie on phone when he was in Chennai and after Gauna his sister also resided at the village of accused Mukesh Sharma for about 4­5 days only. He has denied the suggestion that his sister Julie was sick or that she was medically treated at their house and also at her matrimonial house. The witness has also denied the suggestion that his sister Julie suffered a paralytic attack or that she was medically treated at their village or that thereafter, she was medically treated for the same at Delhi. He has admitted that his sister Julie suffered a paralytic attack St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 16 of 63 about 1½ years prior to her marriage and that she was medically treated for the same but states that she was medically fit at the time of marriage. He has also denied the suggestion that his sister Julie suffered a paralytic attack when she was in her parental house after her marriage or that she was medically treated at their house and also at the matrimonial house in the village of accused Mukesh Sharma. According to the witness, he had not given mobile numbers belonging to him, Mukesh and Julie to the police. He has admitted that his maternal uncle was residing in Mukundpur, Delhi. According to Sujit, he as well as his parents had not asked his maternal uncle to verify the factum as accused Mukesh Sharma was saying to him that he would marry his sister to another person and Julie was weeping. He has denied the suggestion that accused Mukesh Sharma had not telephoned to him stating that his sister Julie will be married to another person and that is why, he and his parents had not asked his maternal uncle to verify the same. The witness has also deposed that he remained at his village to look after the other family members who were in a state of shock and had not come to Delhi immediately after receiving the information of death of his sister. He has admitted that he had told to the police in his statement that Mukesh Sharma had not liked his sister Julie. However, when confronted with his statement Ex.DX­1 the said fact was not found so recorded but has been found recorded that "vo mere ko pasand nahin karte hain". He has denied the suggestion that his sister Julie had not told him that her husband St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 17 of 63 Mukesh Sharma was having a bad behaviour towards her or that he had not liked her. He has also denied the suggestion that his sister Julie had not informed him that accused Mukesh Sharma was talking with neighbour Mala.

Medical witness:

(18) PW5 Dr. V.K. Jha has deposed that on 09.03.2010 he conducted the postmortem on the dead body of Julie, 22 years female wife of Mukesh Sharma which body was sent by M.P. Kushwaha, Executive Magistrate, Model Town. According to the witness, the deceased was wearing Salwar, Suit, Bra and Panty and built of the body was moderate.

He has testified that rigormortis was present on all body parts and postmortem staining was presented at back and eyes were closed; conjuctivae was congested and cornea was hazy; mouth was closed; tongue was inside. He has proved that after postmortem examination, he kept the opinion of case of death pending till chemical analysis report of blood and viscera is received. The witness has deposed that blood and viscera was preserved in common salt and sealed with the seal of sample seal. He has proved his detailed Postmortem Report which is Ex.PW5/A. He has testified that on 12.08.2010 an application was moved by SI Rajender Singh from Police Station Bhalaswa Dairy for opinion cause of death which is Ex.PW5/C. According to the witness, after perusal of the Postmortem Report and viscera report, he opined that no definitive St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 18 of 63 opinion regarding cause of death could be given. This witness has not been cross­examined by the Ld. Defence Counsel despite opportunity. Forensic Witness:

(19) PW1 Ms. Kavita Goyal Senior Scientific Officer (Chemistry), FSL, Delhi has deposed that on 26.04.2010 one sealed parcel alongwith the sample seal received in the office of FSL for chemical examination and it was marked to her. According to the witness, seals were intact and tallied with specimen seals and she opened the parcel by breaking the seal. The witness has further deposed that it was found to contain one wooden box containing two jar and one vial, the jar were containing stomach and piece of small intestine and the other jar containing the pieces of liver spleen and kidney and the vial was containing blood sample approximately 10 ml. She has proved that she examined the above said exhibits chemically and in her opinion on chemical and TLC examination, metallic poison, ethyl and methyl alcohol, cyanide phosphide, alkaloids, barbiturates, tranquillizers and pesticides could not be detected. She has proved having prepared her detailed report which is Ex.PW1/A which was forwarded to Police Station vide letter Ex.PW1/B. This witness has not been cross­examined by the Ld. Defence Counsel despite opportunity in this regard and hence her testimony has gone uncontroverted.

St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 19 of 63 Police/ official witnesses:

(20) PW2 Sh. M.P. Kushwaha has deposed that on 07.03.2010 he was posted as Executive Magistrate, Model Town and on that day, at about 1:00 PM he received a call from Police Station Balaswa Dairy about one lady Julie having expired and her parents were residents of the Bihar. The witness has deposed that he directed the Investigating Officer to inform the parents of the deceased Julie and whenever they came to Delhi, he would inform to him. According to the witness, he also directed the Investigating Officer to got preserved the dead body of deceased Julie in the hospital. The witness has testified that on 09.03.2010 at about 10:00 AM, he received information that parents of Julie had come to Delhi on which he directed the Investigating Officer to brought them in his office pursuant to which the Investigating Officer along with Bilas Mistri came to his office and he recorded statement of father of Julie i.e. Bilas Mistri. He has also deposed that he read over and explained the statement to Bilas Mistri and he (witness) also attested the said statement which is Ex.PW2/A. The witness has also deposed that after satisfying himself, he directed the SHO, Bhalaswa Dairy to take legal action as per law and he made endorsement in this regard from point X to X on Ex.PW2/A and the statement was handed over to the Investigating Officer for necessary action. He has deposed that on the same day, he directed the Investigating Officer to get the postmortem conducted and prepared the inquest papers. He has proved the application for autopsy St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 20 of 63 which is Ex.PW2/B wherein he had also directed that after postmortem body may be given to her parents; brief facts which are Ex.PW2/C;

carbon copy of the statement of Bilas Mistri which is Ex.PW2/D and Form 25.35 which is Ex.PW2/E. He has also proved having recorded the statement of witnesses regarding identification of the dead body vide Ex.PW2/F and Ex.PW2/G. (21) In his cross examination the witness has has deposed that he does not remember the total number of paper for inquest prepared by him and states that he recorded statement of father of deceased at about 12 noon. He has denied the suggestion that he recommended registration of case in mechanical and casual manner without appreciating the fact that there is no allegation of dowry demand and harassment and further denied that he was deposing falsely or that wrong statement of father of deceased was recorded by him.

(22) PW3 HC Narain Singh has deposed that on 09.03.2010 he was posted as Duty Officer at Police Station Bhalswa Dairy from 4:00 PM to 12 midnight and on that day at about 4:45 PM SHO handed over a tehrir for registration of the FIR which was duly forwarded by SHO and SDM. According to him, he got recorded the FIR through computer operator which FIR is a correct version of the rukka. He has proved the copy of FIR which is Ex.PW3/A and also made endorsement on the rukka which is Ex.PW3/B. He has also deposed that the investigation of the St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 21 of 63 case was handed over to SI Rajender Singh for investigation. The witness has also proved the DD No.12 B dated 07.03.10 certified copy of the which is Ex.PW3/C and DD No.14 A in respect of registration of FIR copy of which is Ex.PW3/D. (23) In his cross examination, the witness has denied the suggestion that FIR is anti time and anti dated or that the FIR is fabricated at the instance of the Investigating Officer.

(24) PW4 Ct. Subhash has deposed that on 07.03.2010 he was posted as photographer in Mobile Crime Team­NW District and on that day he along with members of the Crime Team reached House No. A­60, First Floor, Gali no.7, Part­1, Mukand Pur where he took the photographs of the scene of the crime by a digital camera at the instance of the IO. According to the witness, after developing eight photos he handed over the same to the Investigating Officer with the CD containing the negatives of the photographs. He has proved the photographs which are Ex.PW4/A­1 to Ex.PW4/A­8 and the CD containing the negatives is Ex.PW4/B. (25) In his cross examination, the witness has deposed that he reached at the spot at about 12:50 PM along with Crime Team Incharge, Finger Print Proficient and driver. He has denied the suggestion that he had not got photographed the scene of crime.

St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 22 of 63 (26) PW7 HC Brijpal is a formal witness being the MHCM who has been examined by way of affidavit which is Ex.PW7/1 (as per the provisions of Section 296 Cr.P.C.). He has deposed that on 9.3.2010 a viscera box (with the seal of BJRM Hospital) and a sample seal was deposited in Malkhana vide Mud No. 87 dated 09.03.2010 copy of which is Ex.PW7/A. According to the witness on 26.4.2010 on the instructions of SI Rajender he gave sample seal and viscera box to Ct. Satish vide RC No.8/21/10 copy of which is Ex.PW7/B for depositing the same to FSL, Rohini. He has testified that after depositing the case property Ct. Satish handed over to him the receipt of FSL copy of which is Ex.PW7/C. He has proved that so long the case property remained in his possession it was not tampered with.

(27) In his cross examination, the witness has denied the suggestion that the viscera box was tampered with while it was in his custody. He has admitted that the fact that so long the case property remained in his possession it was not tampered with, is not mentioned in the affidavit Ex.PW7/1. He has denied the suggestion that the entries made in the register are ante­dated.

(28) PW8 SI Mata Din Meena is a formal witness being the Crime Team Incharge who has been examined by way of affidavit which is Ex.PW8/1 (as per the provisions of Section 296 Cr.P.C.). He has deposed that on 7.3.2011 at about 12:05 PM he received a request from SI St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 23 of 63 Rajender Singh of Police Station Bhalswa Dairy for inspection of scene of crime at Gali No.2, in front of Punjab National Bank, Mukunderpur, Part­1st, Delhi. He has proved that he reached the spot and carried out the inspection of scene of crime and prepared his report which he handed over to the Investigating Officer which is Ex.PW8/A. (29) In his cross examination the witness has deposed that he is unable to tell how many photographs were taken by the photographer Ct. Subhash. He has deposed that the affidavit was prepared at his instructions but he does not remember the day when it was prepared. He has denied the suggestion that he had not visited the scene of crime or that he prepared his report Ex.PW8/A in a mechanical manner while sitting in the police station at the instance of the Investigating Officer. (30) PW9 Ct. Satish is also a formal witness who has been examined by way of affidavit which is Ex.PW9/1 (as per the provisions of Section 296 Cr.P.C.). He has deposed that on 26.4.2011 on the instructions of SI Rajender he took sample seal and viscera box from the MHCM vide RC No. 8/21/10 Ex.PW7/B and deposited the same at FSL Rohini after which he handed over the receipt of FSL to MHCM which receipt is Ex.PW7/C. He has proved that so long as the case property remained in his possession, the same was not tampered with. (31) In his cross examination, he admitted that in his affidavit the date is mentioned as 26.04.2011 and has voluntarily explained that the St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 24 of 63 year 2011 was wrongly mentioned by mistake, it was 2010. He has further admitted that he had signed the affidavit after going through the same. He has denied the suggestion that the case property was tampered with while it was in his custody.

(32) PW13 Ct. Ramesh has deposed that on 07.03.2010 he was posted at Police Station Bhalsawa Dairy and on that day pursuant to DD No.12B he along with SI Rajender Singh reached at A­60, Gali no.2, Part­ I, Mukundpur, Delhi where they saw the dead body of Julie at the first floor of the house. He has further deposed that the crime team officials were called at the spot and they took photographs and conducted the proceedings after which the dead body was removed to BJRM Hospital and was kept in Mortuary of BJRM Hospital. According to the witness on 09.03.2010 SDM, Model Town reached at BJRM Hospital and on his request postmortem was conducted after which the dead body was handed over to the relatives of the deceased. According to the witness, Autopsy Surgeon handed over him a wooden box containing viscera of the deceased in sealed condition with the seal of FMT BJRM Hospital, Delhi alongwith sample seal and he handed over the same to SI Rajender Singh at the police station who seized the same vide seizure memo Ex.PW13/A. The witness has also deposed that on 10.03.2010 Bilas Mistri came at the police station on which he alongwith SI Rajender Singh and Bilas Mistri reached the place of incident at Mukundpur and at the instance of Bilas Mistri the accused Mukesh Kumar was arrested by SI Rajender Singh and St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 25 of 63 was interrogated by the Investigating Officer. He has also deposed that the accused Mukesh was arrested vide arrest memo Ex.PW6/B and his personal search was conduced vide memo Ex.PW6/C and his disclosure statement was recorded by the Investigating Officer which is Ex.PW13/B. The witness has correctly identified the accused Mukesh in the Court. (33) In his cross examination, the witness has deposed that the Investigating Officer recorded his statements two times i.e. on 09.03.2010 and 10.03.2010. He has denied the suggestion that he had not joined the investigations with the Investigating Officer on 07.03.2010 that is why his statement was not recorded on 07.03.2010. He has also deposed that he is not aware whether accused Mukesh was present at the spot on 07.03.2010 when they visited the spot and at the time of postmortem as he had not know the accused at that time. The witness has denied the suggestion that he had not joined the investigation of this case at any time or that his signatures were obtained by the Investigating Officer on blank papers at the police station.

(34) PW15 SI Rajender Singh is the Investigating Officer who has deposed that on 07.03.2010, he was posted at Police Station Bhalsawa Dairy and on that day, he received DD no.12B pursuant to which he along with Ct. Ramesh reached at H. No.A­60, Gali No.2, Part­I, Mukundpur, Delhi where he found the dead body of Julie lying on the floor. He has further deposed that Maternal Uncle of Julie namely Mahesh Sharma was present there who informed him that the death of Julie was caused due to St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 26 of 63 poisoning and he suspected that she was murdered. According to the witness, crime team was called by him at the spot who reached the spot and the crime team official took photographs and inspected the site after which the Incharge of Crime Team gave him his crime team inspection report which is Ex.PW8/A. According to the witness, he came to know that the marriage of Julie took place two years back so he immediately informed SDM of the area about the death of Julie and the dead body was sent to BJRM Hospital through Ct.Ramesh. He has further deposed that the SDM directed him to bring the parents of the deceased to his office on which he also informed the father of the deceased at Bhagalpur, Bihar and made an application to BJRM Hospital to preserve the dead body vide Ex.PW15/A. He has testified that on 09.03.2010 the father of the deceased Julie namely Bilas Mistri came at police station and he immediately informed SDM about the same and thereafter, he took Bilas Mistri to the office of SDM at Ram Pura. He has further deposed that SDM Sh. M.P. Kushwaha recorded the statement of Bilas Mistri and thereafter, he alongwith the SDM Sh. M.P. Kushwaha, Bilas Mistri, Mahesh Sharma and Ct. Ramesh reached BJRM Hospital Mortuary. The witness has testified that the SDM filled the inquest papers and recorded statement of Bilas Mistri and Mahesh Sharma about the identification of the dead body after which on the direction of the SDM postmortem was conducted. He has further deposed that after postmortem, the dead body of Julie was handed over to Bilas Mistri and Mahesh Sharma on the St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 27 of 63 direction of SDM vide Ex.PW6/A. The witness has further deposed that after postmortem, Ct. Ramesh handed over one wooden box containing viscera of the deceased in sealed condition with the seal of FMT, BJRM Hospital Delhi with sample seal to him and he seized the same vide seizure memo Ex.PW13/A. According to the witness, he deposited the case property in the Malkhana of the police station. He has further deposed that in the office of the SDM, after recording of the statement of Bilas Mistri, the SDM directed SHO Bhalaswa Dairy to take legal action as per law and handed over statement of Bilas Mistri and his directions to him (witness). According to the witness, he handed over these documents to SHO at police station and SHO Insp. Ram Pal Singh directed registration of the case U/s 498­A/304­B vide portion of Y of Ex.PW2/A and SHO handed over further investigations to him. He has testified that FIR No.29/10 was registered by the Duty Officer on the basis of statement of Bilas Mistri on the direction of the SHO and he received the copy of FIR and the documents after which he reached at the place of incident alongwith Mahesh Sharma and prepared the site plan Ex.PW15/B at the instance of Mahesh Sharma and searched the accused but he could not be found. According to him, on 10.03.10, he alongwith Ct. Ramesh reached at Mukundpur at about 10:00 AM where Bilas Mistri met him and thereafter, they reached at H. No.A­60, Gali No.1, Part­I Mukundpur where at the instance of Bilas Mistri they apprehended Mukesh Kumar Sharma. The witness has testified that he interrogated the accused who St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 28 of 63 confessed about his guilt and involvement in the death of Julie after which he arrested the accused Mukesh Kumar Sharma vide Ex.PW6/B and his personal search was taken vide Ex.PW6/C. He has further proved that he recorded the disclosure statement of accused Mukesh vide Ex.PW13/D. He has further deposed that on 13.03.2010, he recorded the statements of other family members of the deceased Julie and on 05.04.2010, he collected the Postmortem Report and on 26.04.2010, exhibits were sent to FSL, Delhi through Ct. Satish and he collected photographs and CD from the crime team photographer. He has also deposed that after completion of investigation, he submitted the charge sheet against accused Mukesh Sharma. He has proved having collected the FSL result about the viscera Ex.PW1/A and moved an application for opinion of the doctor about the cause of death vide Ex.PW­5/B and opinion of the doctor is Ex.PW5/C and submitted the same before the court. He has correctly identified the accused Mukesh Sharma in the Court.

(35) In his cross examination, the witness has deposed that he received DD No.12B at about 11.40 AM on 07.03.10 and there were around 30­40 houses in Gali No.2, Mukundpur, Part­I. He has admitted that H. No.A­60 was not mentioned in DD No.12B. According to the witness, he reached the spot at about 12.00 Noon. He has further admitted that a number of tenants were residing in H.No.A­60 at the time of alleged incident. He has further admitted that a number of persons St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 29 of 63 gathered there and he had asked from them about the incident but he is unable to tell the name of the person to whom he made the inquiries. The witness has testified that he remained at the spot for about three hours and three officials from crime team visited the spot. According to the witness, Bilas Mistri met him at the police station on 09.03.10 at about 10.00 AM and Mahesh Sharma provided the contact number of Bilas Mistri to him on 07.03.2010. He has further deposed that he does not remember the contact number and he also do not remember whether he had recorded statement of Mahesh Sharma in this regard. According to him, they reached in the office of SDM at about 11.00 AM but he had not made any departure DD in this regard and remained in the office of SDM for about two hours. He has also deposed that they reached at BJRM Hospital Mortuary at about 1.30­2.00 PM alongwith SDM for postmortem. The witness has also deposed that he went to the office of SDM with Bilas Mistri on his motorcycle. He has testified that Ct. Ramesh was with him and was on his own motorcycle. According to him, SDM remained in the hospital upto 4.00 PM and the dead body was handed over to Bilas Mistri and Mahesh Sharma at about 4.30 PM. He has deposed that he made arrival DD at the police when he returned back to police station. He has further deposed that he had not obtained signatures of Mahesh Sharma on the site plan and had not made any inquiry from the owner of the house where accused Mukesh Sharma was residing with his wife deceased Julie qua any dispute or quarrel. The witness has further deposed that he does St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 30 of 63 not remember the number of DD regarding his arrival but states that it was prior to 5:00 PM. He has denied the suggestion that he had not go out from the police station for the investigation of this case that is why, he had not made any departure entry after registration of the FIR on 09.03.2010. According to him, he had not recorded statement of Bilas Mistri when he came at the police station on 09.03.10. He has denied the suggestion that accused Mukesh Sharma was present at his house and other neighbours and relatives of Mukesh Sharma were also present at the house for the condolence of death of Julie. The witness has deposed that he had no knowledge that Julie was sick before the day of incident and family members of deceased Julie had not informed him that Julie had suffered a paralytic attack and she was under treatment. He has denied the suggestion that he had not investigated the present case fairly or that it was a false case registered at the instance of family members of deceased Julie. He has further denied the suggestion that he conducted all the proceedings at the police station or that accused Mukesh Sharma was called at the police station and had falsely implicated in the present case. STATEMENT OF THE ACCUSED/ DEFENCE EVIDENCE:

(36) After completion of prosecution evidence the statement of the accused Mukesh Kumar Sharma was recorded under Section 313 Cr.P.C.

wherein all the incriminating evidence was put to him which he has denied. He has admitted that he was married the deceased Julie and St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 31 of 63 brought her to Delhi but he has denied that he had made any demand for purchasing a motorcycle. According to the accused, he made a telephonic call to the brother of Julie and informed him that the condition of Julie was critical as she had suffered paralytic attack. He has denied that he ever demanded money or harassed his deceased wife Julie. The accused has further stated that he has been falsely implicated in the present case by the parents and family members of the deceased due to anger as after her natural death, they developed enmity against him. However, the accused has not examined any witness in his defence. FINDINGS:

(37) 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 testimonies of the various witnesses and the written memorandum of arguments. My findings are as under:

Identity of the accused:

(38) There is no dispute with regard to the identity of the accused Mukesh Kumar Sharma who is the husband of the deceased Julie. He has been specifically named in the FIR and duly identified by the witnesses/ family members of the deceased. Hence, I hereby hold that the identity of the accused stands established.

St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 32 of 63 Unnatural death of the deceased Julie within seven years of marriage:

(39) The case of the prosecution is that the death of the deceased had taken place within seven years of marriage which death was under

unnatural circumstances. There is no dispute with regard to the same. The accused has admitted that he was married to the deceased Julie on 9.6.2008 and her death had taken place during the intervening night of 6­7.3.2010 within seven years of marriage (i.e. almost one year and nine months of the marriage) which aspect stands established.

Medical evidence:

(40) Dr. V.K. Jha (PW5) has proved that on 9.3.2010 he had conducted the postmortem examination on the dead body of deceased Julie on the directions of Executive Magistrate, Model Town Sh. M.P. Kushwaha. He has proved the postmortem report which is Ex.PW5/A and did not give any opinion with regard to the cause of death which he kept pending till the chemical analysis report of blood and viscera is received. He has further proved that on receipt of the viscera report he opined that no definite opinion regarding the cause of death could be given. No other evidence has been lead by the prosecution to prove the cause of death.

(41) The photographs placed on record which are Ex.PW4/A­1 to Ex.PW4/A­8 show frothing from the mouth of the deceased primafacie showing that the deceased had consumed poison but the chemical analysis St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 33 of 63 report shows the absence of metallic poisons, ethyl and methyl alcohol, cyanide, phosphide, alkaloids, barbiturates, tranquillizers and pesticides.

It also does not show that any force was used on the deceased prior to her death or whether the death was suicidal or homicidal. Allegations against the accused under Section 498­A & 304­B IPC (dowry death­ proximity test):

(42) The case of the prosecution is that the accused Mahesh Kumar Sharma subjected his wife Julie to cruelty and harassment in connection with demand of dowry. In this regard the prosecution has placed its reliance on the testimonies of father of the deceased namely Bilas Mistri (PW6), mother of the deceased namely Lal Mani Devi (PW10), sister in law/ Bhabhi of the deceased namely Smt. Mamta (PW11) and brother of the deceased namely Sujit Sharma (PW14).

(43) In his first statement made to the SDM Sh. M.P. Kushwaha, the father of the deceased namely Bilas Mistri (PW6) which he had made after two days of the incident vide Ex.PW2/A the only allegations made are of his daughter (deceased Julie) having complained to her about the accused having an illicit relations with the wife of a compounder residing in the adjoining room on rent. He has also alleged that after six months of the marriage he had given Rs.11,000/­ to the accused for purchase of a motorcycle and his daughter informed them that the motorcycle had been purchased by the accused but in the name of the compounder or his wife.

St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 34 of 63 He has further alleged that on 6.3.2010 at about 6:15 PM the accused Mukesh Kumar called up his son Sujit on mobile No. 8877416565 and told them that he will get his daughter married to some other person (aaj teri behen ki shaadi kara deta hoon). According to the father of the deceased, his daughter herself come on the phone and told them weeping to see what the accused was saying and thereafter disconnected the phone. (44) Before coming to the evidence 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 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 St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 35 of 63 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, as defined in the explanation to Section 498­A of Indian Penal Code. (45) 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.

(46) 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 St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 36 of 63 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.

(47) Further, in order to establish a charge under Section 304­B of Indian Penal Code, which deals with what is described as "dowry death", 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.

St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 37 of 63 (48) 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. v. 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 persons to whom the Muslim Personal Law (Shariat) applies."

(49) 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 St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 38 of 63 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 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. St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 39 of 63 (50) 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 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.

(51) 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 St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 40 of 63 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." (52) In the case of Appasaheb and Anr. Vs. State of Maharashtra, reported in AIR 2007 SC 763, the Hon'ble Supreme Court observed as 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 St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 41 of 63 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."

(53) 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.

(54) 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 St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 42 of 63 by her husband or any relative of her husband, in connection with any demand of dowry.

(55) 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 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 304­ B is to be soon before the death of a woman.

(56) 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 St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 43 of 63 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.

(57) 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 judgment of the Rajasthan High Court reported as Gurditta Singh Vs. The State of Rajasthan reported in 1992 Crl. L.J. 309). (58) 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 St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 44 of 63 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.

(59) 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 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."

(60) 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:­ St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 45 of 63 ".....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 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...."

St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 46 of 63 (61) 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."

(62) 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 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 cold­blooded 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 St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 47 of 63 of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted....."

(63)

(64) 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. (65) Applying these settled principles of law to the facts of the present case, coming first to the testimony of the father of deceased namely Bilas Mistri who has been examined as PW6. In his testimony before the Court only vague allegations of harassment have been made.

According to him, the accused used to harass her daughter and had illicit relations with the wife of a compounder residing in the adjoining room. The following aspects are borne out from the testimony of Bilas Mistri (PW6):

➢ That Julie was married to the accused at Bihar and had come to Delhi only six months prior to the date of incident. ➢ That the accused and his deceased wife were residing at A­60, Mukundpur, Delhi on rent and the landlady was Bano W/o Munna.

➢ That after two months of her arriving in Delhi the deceased had disclosed to her brother and sister in law that her husband used to harass her and was having illicit relations with the wife of a St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 48 of 63 compounder residing in the same premises on rent which fact was told to Bilas Mistri by them on which he tried to make the accused Mukesh Kumar understand on phone but nothing changed and he continued to harass her.

➢ That after six months of marriage Bilas Mistri had given Rs.11,000/­ to accused for purchase of motorcycle which motorcycle was purchased but it was in the namely of the compounder or his wife.

➢ That on 6.3.2010 at about 6:00/ 6:15 PM Julie called up her brother Sujit that the accused had told her that she would get remarried today itself to some other person which she told him weepingly on which Bilas Mistri tried to call up his daughter but the phone was disconnected.

➢ That on 7.3.2010 at about 6:00 PM the accused Mukesh Sharma informed them on telephone that Julie had expired. (66) This witness Bilas Mistri has been cross­examined at length wherein he has admitted that after the marriage his daughter Julie remained in the village till the time of her Gauna and the accused also used to come to the village during that time. He has also stated that the accused had purchased the motorcycle three­four months prior to the death of his daughter but he cannot tell the details and also admitted that his daughter had not told him directly that the accused had St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 49 of 63 purchased the motorcycle in the name of the wife of compounder or that he was roaming around with the wife of compounder on the said motorcycle.

(67) Coming next to the testimony of the mother of the deceased namely Smt. Lal Mani Devi (PW10) who has deposed on identical lines as that of her husband Bilas Mistri (PW6). The following aspects borne out from her testimony:

➢ That after the marriage her daughter Julie had resided at her matrimonial house at Village Bakiya and after five­six months her daughter was brought to Delhi by her husband Mukesh Kumar. ➢ That the accused Mukesh Kumar used to harass Julie for motorcycle and her husband (Bilas Mistri) gave Rs.11,000/­ to the accused for purchasing the same.

➢ That the accused Mukesh Kumar was residing with a lady namely Mala with whom he was maintaining illicit relations and after her husband had given Rs.11,000/­ to the accused he had purchased the motorcycle in the name of Mala which was objected to by her daughter on which there was a quarrel between them. ➢ That on 6th day of the month after Holi, they received a telephone call from Mukesh Kumar informing about the death of her daughter but she did not believe it because on the same day evening her son Sujit had spoken to Julie over phone. St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 50 of 63 (68) The said witness has also been cross­examined wherein she is unable to give the details of the month and date of marriage being totally illiterate. She has admitted that Julie used to talk to her sister in law/ Bhabhi but never spoke to her directly over telephone. She is unable to tell the date and month when the demand of motorcycle was raised.

She has admitted that it was her daughter in law who had informed her about the illegal demands of motorcycle by the accused Mukesh Kumar. (69) The sister in law of the deceased namely Mamta has also been examined as PW11. She is the witness with whom the deceased used to speak over telephone. The following aspects are borne out from her testimony:

➢ That the marriage between the accused and the deceased was solemnized on 9.6.2008 and after the marriage Julie had gone to her matrimonial house at Village Bakiya, District Bhagalpur, Bihar along with the accused Mukesh Kumar.

➢ That after five months of marriage Julie came to Delhi along with the accused.

➢ That after one month of Julie reaching Delhi, she told her that the accused was demanding Rs.11,000/­ for motorcycle on which Bilas Mistri gave Rs.11,000/­ to Mukesh Kumar. ➢ That after purchasing the motorcycle Julie informed her that the accused did not purchase the motorcycle in his or her name but he purchased the same in the name of wife of a doctor who was St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 51 of 63 residing in the neighbourhood.

➢ That the accused Mukesh was having illicit relations with that lady and was moving around with the said lady on account of which she (Julie) was disturbed.

➢ That on 6.3.2010 at about 4:00 PM she received a telephone call from Julie who told her that whenever she objected to the accused Mukesh about his above acts he used to give beatings to her.

➢ That Julie told her that she wanted to talk to her brother Surjet but he was not available at that time.

➢ That thereafter on the same day she received another telephone call from Julie at about 7:00 PM when Sujit spoke to Julie and Mukesh also spoke to Sujit and told that Julie would be got remarried again.

➢ That on the next day at about 6:00 AM they received a call from Mukesh Kumar that Julie was dead.

(70) In her cross­examination, Mamta Devi has admitted that Julie had resided at her matrimonial home at village Bakiya for about one and a half year. She has admitted that the accused Mukesh was working as a carpenter in Delhi and had left for Delhi after one month of his marriage.

She has further admitted that Julie was left in Delhi by the husband of her other Nanand (sister of Julie). She has denied that accused Mukesh St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 52 of 63 always remained in Delhi and never visited his village. She is unable to give the date, month or year when Julie had left for Delhi and she was at her native village at that time. She has further admitted that Julie had suffered a paralytic attack and had been receiving treatment at village Bakiya, Village Naya Tola Telgi and also at Delhi. Further in her cross­examination she has stated that it was Julie who had told her about the payment of Rs.11,000/­ by Bilas Mistri but she did not ask her mother in law or father in law about the said payment. She has stated that she had told to the Police in her statement about the accused Mukesh having illicit relations with the wife of a doctor. However, when confronted with her statement Ex.PW11/DA the said fact was not found recorded but the fact that the accused having illicit relationships with the wife of a compounder has been mentioned.

(71) The most important witness of the prosecution is the brother of the deceased with whom the deceased had last spoken namely Sujit Sharma who has been examined as PW14. The following aspects are borne out from his statement:

➢ That the accused was married to the deceased in the month of July 2008 and after five months of marriage the accused brought Julie to Delhi resided at Mukundpur on rent.

➢ That the deceased used to spoke him on telephone and informed that the accused Mukesh was usually talked with one St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 53 of 63 neighbour Mala and his behaviour towards her (Julie) was bad and Mukesh did not like her.

➢ That on 6.3.2010 at about 6:15 PM Mukesh telephoned him and told him that his sister Julie will be remarried to another person and thereafter the phone was switched off. ➢ That Mukesh Sharma told him on phone that he will marry his sister Julie with another person on which Julie told him weepingly that "dekho mere bare mein kya kahe rahen hain". ➢ That he tried to contact Mukesh Sharma and Julie but was unable to contact them and thereafter informed his father about the same on which his father also tried to contact them but could not contact Julie.

➢ That on the next day morning i.e. on 7.3.2010 at about 6:00 AM Mukesh Sharma informed him on phone that Julie had expired. (72) From a combined reading of the testimonies of all these witnesses the incriminating facts which emerge are Firstly that after the marriage when the deceased Julie started staying with the accused he had been given Rs.11,000/­ for purchasing a motorcycle and the said amount was given to the accused; Secondly that deceased suspected that the accused was having an illicit relations with one lady Mala who was residing in the adjoining room in the same premises where they were residing on rent and on receipt of Rs.11,000/­ the accused had purchased St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 54 of 63 the motorcycle either in the name of Mala or his husband which was objected to by Julie on account of which there was a quarrel between her and accused; Thirdly that the behaviour of the accused towards the deceased was bad and a day prior to the incident i.e. on 6.3.2010 the family of the deceased had received a call from the deceased and also from the accused when they have spoken to the family of the deceased that the accused was threatening to marry the deceased to some other person and soon thereafter the said phone was disconnected and the family of the deceased could not reach back the deceased again and the only information received by them on the next day at about 6:00 AM was regarding the death of Julie.

(73) Coming to the first aspect regarding the demand of Rs.11,000/­, I may observe that the father of the deceased namely Bilas Mistri (PW6) made no such allegation of demand but rather states that he himself had given Rs.11,000/­ to the accused for purchase of the motorcycle. A Judicial Notice of this fact is taken that in the year 2009­2010 no motorcycle could have been purchased for Rs.11,000/­ and the average market value of any motorcycle was more than Rs.40,000/­. There is no evidence documentary or otherwise to show that this amount has been given to the accused for purchase of motorcycle. Assuming that the said amount was lying in the house and had been given to the accused yet it is evident from the testimony of Bilas Mistri (PW6) that it was given to the accused of his own and hence does not cover the same within the St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 55 of 63 definition 'Dowry' there being the absence of demand. The only person who had deposed regarding the direct demand of Rs.11,000/­ is Sujit Sharma (PW14) who does not find corroboration from any other source.

The mother of the deceased Lal Mani Devi (PW10) and the bhabhi of the deceased Mamta (PW11) have both stated that the demand was not made in their presence. In fact Mamta (PW11) has stated that the month was actually given to the accused but she had never asked her in laws about the same.

(74) Secondly coming to the aspect of the accused having an affair with some other lady. In this regard I may specifically observe that the Investigating Officer has not bothered to question any of the neighbours of the deceased on this aspect. Who was this Compounder who was residing in the room adjoining to that of the accused? Who was this lady Mala? No details in this regard have been placed on record by the prosecution. The investigations have been conducted in the most casual and non professional manner. It is writ large that after recording the statements of the parents and relatives of the deceased the Investigating Officer has wound­up the investigations without even bothering to examine the other residents of the premises where the deceased was residing and without having bothered to ascertain the exact cause of death (which cause of death has also been left as inconclusive). The Investigating Officer has further not bothered to collect any Registration Certificate of the motorcycle and not even bothered to ascertain whether St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 56 of 63 there was any purchase of motorcycle made by the accused either himself or in the name of some other person. In so far as the accused Mukesh Kumar is concerned, he in his statement under Section 313 Cr.P.C. has denied having made any purchase of motorcycle (which otherwise is not possible since no motorcycle could be purchased for Rs.11,000/­ though its a different matter that a second­hand motorcycle could have been purchased but the entire investigations are silent on this aspect). (75) Lastly coming to the third aspect i.e. the behaviour of the accused towards the deceased when a day prior to the incident the deceased had called up her family and informed them about the behaviour of the accused. Here, I may observe that the accused in his statement under Section 313 Cr.P.C. does not dispute the telephone call rather himself admitted having made the call to the family of the deceased (apparently the call detail records would have confirmed the same which Call Detail Records have not been collected by the Investigating Officer). The only aspect the accused did not admit is that Julie had complained to her parents about his conduct. Here, I may observe that the family of Julie had made no allegations against the accused of having made demand when they received a phone call on 6.3.2010 and the allegations made are unusual. They have all unanimously stated that Julie weepingly telephoned them that the accused had told her that he would get her married to some other person and thereafter she was so over­whelmed that she had told her brother to see what the accused was saying (Dekho St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 57 of 63 Mere Bare Main Kya Kahe Rahen Hain). This reflects that there was some dispute/ quarrel between the accused and the deceased, perhaps a verbal altercation, at the time when the call was made and hence being aggrieved by the utterance of the accused she had complained about the behaviour and conduct of the accused. The defence of the accused is that he himself had made a call to inform the parents of the deceased about the paralytic attack prior to her death. Undoubtedly there is a history of the deceased Julie having suffered paralytic attack which has been admitted by Smt. Mamta (PW11). Whether the death of the deceased was homicidal, suicidal or even natural has not been established. The facts and circumstances of the case show that the possibility of the death being natural on account of some kind of fits or seizures also cannot be ruled out. A congestion of brain matters, meninges & cerebral vessels; lungs and heart and the froth from the mouth has been indicated in the postmortem report and also evident from the photographs on record (Ex.PW4/A­4, PW4/A­6, PW4/A­7 and Ex.PW4/A­8 showing frothing). This could equally mean that in the absence of there being evidence of any poison that she had suffered epileptic fits (which possibility cannot be ruled out since even the accused states that on seeing the condition of the deceased had telephoned the family of the deceased and informed them about the attack).

(76) In view of the above, I hereby hold that the prosecution has miserably failed to relate the instances cited by them to any dowry related St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 58 of 63 harassment by the accused Mukesh Kumar Sharma. Also the prosecution has failed to establish any proximity or live link between the death of Julie 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 accused Mukesh Kumar Sharma in the commission of the alleged crime beyond reasonable doubt nor there is anything on record to show that the death of the deceased had occurred on account of conduct of the accused. There are large missing links and I am compelled to grant benefit of doubt to the accused Mukesh Kumar Sharma.

Conduct of the Investigating Officer:

(77) I am pained to observe that the investigations have been conducted in most halfheartedly and predisposed manner. There are many unanswered questions on the sequence of events leading to the death of the deceased. The investigations are lacking of the following aspects:

➢ Despite the fact that there were allegations against the accused of having illicit relations with the wife of a Compounder/ doctor who was residing in the neighbourhood, the investigations are totally silent on the above and no inquiries were made from the neighbours in this regard.

➢ No attempt has been made to join witnesses from the neighbourhood of the accused who were residing in the same St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 59 of 63 complex nor their statements have been recorded. ➢ The call detail records of the phone of the accused and also family of the deceased have also not been obtained to establish if there was any conversation between the accused and deceased with the family of the deceased.

➢ The bank account statement of the accused have not been obtained to show any kind of transaction of money which could prove the deposit and withdrawal of amount.

➢ No investigations have been conducted whether the accused Mukesh Kumar Sharma purchased any motorcycle or not. If yes, in whose name he purchased the same.

➢ After recording the statements of the family members of the deceased, no investigations were conduct to ascertain the correctness or falsity of their statements.

➢ No definite opinion was given by the Autopsy Surgeon Dr. V.K. Jha with regard to the cause of death, despite which no subsequent efforts were made to get a final expert opinion with regard to the cause of death i.e. whether it was a homicidal or suicidal in nature.

FINAL CONCLUSIONS:

(78) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra reported in AIR 1984 SC 1622 the Apex Court has laid down St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 60 of 63 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.

(79) Applying the settled principles of law to the facts of the present case it is evident that the identity of both the accused stands established. The accused Mukesh Kumar Sharma is the husband of the deceased Julie. It also stands established that the marriage of Julie took place with the accused Mukesh Kumar Sharma on 9.6.2008 which marriage was an arranged marriage. It also stands established that prior to six months of the incident, the accused Mukesh Kumar Sharma brought the deceased Julie to Delhi and started residing at A­60, Gali No. 2, St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 61 of 63 Part­1, Mukundpur, Delhi on rent. It further stands established that on 7.3.2010 at 4:30 PM Smt. Julie was found dead under unnatural circumstances within seven years of marriage.

(80) However, the allegations against the accused Mukesh Kumar Sharma of causing harassment to the deceased in connection with demand of dowry, do not stand established beyond reasonable doubt. It has not been established whether the death of the deceased was homicidal or suicidal. The prosecution has miserably failed to relate the death of the deceased to any dowry related harassment by the accused Mukesh Kumar Sharma. Also, the prosecution has failed to establish any proximity or live link between the death of Julie 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 accused Mukesh Kumar Sharma in the commission of the alleged crime beyond reasonable doubt nor there is anything on record to show that the death of the deceased had occurred on account of conduct of the accused.

(81) 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 accused person. The material brought on record by the prosecution are insufficient to hold that the accused was guilty beyond reasonable doubt. St. Vs. Mukesh Kumar Sharma, FIR No. 29/2010, PS Bhalswa Dairy Page No. 62 of 63 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 Mukesh Kumar Sharma, beyond reasonable doubt and hence, benefit of doubt is being given to him. The accused is acquitted of the charges under Section 498­A/304­B Indian Penal Code. His surety be discharged as per rules.

(82)           File be consigned to Record Room.



Announced in the open court                                              (Dr. KAMINI LAU)
Dated: 3.10.2012                                                        ASJ­II(NW)/ ROHINI




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