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Delhi District Court

State vs . (1) Ashish Kumar Sharma S/O Sh. ... on 17 September, 2013

       IN THE COURT OF MS. ANURADHA SHUKLA BHARDWAJ
              ASJ­02 (EAST), SPL. JUDGE, NDPS KKD COURTS, DELHI

Unique ID No. 02402R0011552007
Sessions Case No.24/13
Date of Institution: 30.12.06
Date of transfer to this court: 02.01.13
Date on which reserved for orders: 02.09.13
Date of delivery of order: 17.09.13

State v/s.     (1) Ashish Kumar Sharma S/o Sh. R.S.Sharma
                    R/o. P84, Pandav Nagar, Delhi.
                    Delhi.                     
                    
               (2) Rama S. Sharma S/o Sh. D.N.Sharma 
                     R/o. Section ­4 AC Gate Sadap Colony, 
                     Hathras, U.P.              
                   
               (3) Ram S. Sharma @ Baoby S/o. Sh. R.S. Sharma
                     R/o. 2174,  Sadap Colony Seeyal Kheda,
                     Hathras, U.P.
               (4) Richa Sharma W/o. Rama Shankar Sharma
                    R/o. 2174, Sadap Colony Seeyal Kheda,
                    Hathras, U.P
            (5) Archna Sharma W/o. Sh. Ram Saran Sharma
                 R/o. 2174, Sadap Colony Seeyal Kheda,
                 Hathras, U.P
                               
FIR No. 509/06
PS. Pandav Nagar
U/s. 498­A/304­B/34 IPC
JUDGMENT:

­ FIR No. 509/06, PS. Pandav Nagar Page 1 of 52 St. Vs. Ashish Kumar Sharma etc.

1. Brief facts of the case are that on 03.10.06 a DD No. 27­A was received at PS Pandav Nagar, on which SI Dheeraj Singh alongwith Ct. Arun had gone to the premises number P84, Mayur Vihar Phase­I, near Ahlcon Public School, where, one female hanging with ceiling fan with a chunni and an aged person Satish Sharma, were found. Satish Sharma identified the female as Rashmi and disclosed that the deceased was his daughter and was recently married. On this disclosure, Ilaqa SDM and crime team was called. The Crime Team inspected and photographed the spot. No suicide note was found from the spot. At the instruction of SDM, the chunni was cut and body was brought down.

Investigation was taken up initially by SI Dinesh Singh. The SDM was called, however, since the father of the deceased Dr. S.P Sharma was perturbed because of untimely death of his daughter, he did not give his statement that day. The statement of Dr. S.P. Sharma and his wife Uma Sharma was recorded by the SDM on 04.10.06. Both the parents had given hand written statements. Investigation was taken up and charge­sheet u/s. 498­A/304­B/34 IPC was filed.

2. The accused persons were charged for having committed offence u/s.498­ A/304­B/34 IPC and in alternate u/s 306 IPC. All the accused persons pleaded not guilty and claimed trial.

3. Prosecution examined 16 witnesses to prove its case.

PW­1 is the draftsman, who had prepared the sketch of site plan Ex.PW1/A. FIR No. 509/06, PS. Pandav Nagar Page 2 of 52 St. Vs. Ashish Kumar Sharma etc.

4. PW­2 Ct. Naresh Kumar had joined the investigation on 04.10.06 alongwith SI Dheeraj and had gone to LBS Hospital, where the postmortem on the dead body was conducted. He has deposed that SDM Preet Vihar had come to the spot and after recording the statement of the parents had recommended the registration of FIR; the dead body was handed over to father of deceased after postmortem; husband of deceased Ashish Kumar was arrested at the instance of Sh. S.P. Sharma vide memo Ex.PW2/A; his personal search was conducted vide memo Ex.PW2/D; father in law of deceased was arrested by Ex.PW2/C and his personal search was conducted vide memo Ex.PW2/B. He also deposed that the IO had collected the exhibits and had seized one mobile phone given by Uma Sharma to him, which is Ex.PW3/C. The mobile was exhibited as Ex.P2.

5. PW­3 deposed in terms of investigation and proved the seizure of chunni with which the deceased was hanging vide seizure memo Ex.PW3/A. PW­3 SI Dheeraj Singh has deposed that SDM had made enquiries from Satish Sharma, who told that he was not in a position to give statement. Inquest proceedings were conducted by the SDM; dead body was sent to mortuary and case property was deposited in malkhana.

He deposed that on 04.10.06 he alongwith Ct. Naresh had gone to LBS Hospital, where after the postmortem SDM recorded the statement of father and mother of deceased and directed the SHO to take necessary action. The dead body FIR No. 509/06, PS. Pandav Nagar Page 3 of 52 St. Vs. Ashish Kumar Sharma etc. was handed over to the relatives. On 04.10.06 accused Ashish and his father were brought at PS and FIR No. 509/06 was registered. He went to the spot alongwith Ct. Naresh, where he prepared the site plan Ex.PW3/B at the instance of complainant Satish Sharma. The father and the mother of deceased handed over mobile phone of deceased stating that the same was given by them to accused Ashish and he was using the same. He also stated that the phone had some messages sent by the deceased. The said mobile was seized vide memo Ex.PW3/C. He recorded the supplementary statement of Satish Sharma, when he came back to Police Station. He deposed about the arrest of Ashish and Rama Shankar and proved the memos as also the copy of DD No. 27­A and 33­A. ( regarding deposit of case property in malkhana). He proved the pieces of chunni as Ex.P1 & P3 and Nokia Mobile Phone as Ex.P2. In his cross­examination he said that phone Ex.P2 was handed over to him by the father of the deceased ( Ct. Naresh had stated that the phone was handed over by Uma Sharma while Dheeraj Kumar in chief stated that it was handed over by both the parents). He stated that he had not noted down the IMEI number of the mobile phone. He admitted that he had not mentioned anywhere that father of the deceased told that Ex.P2 was being used by Ashish, however, stated that he had mentioned this fact in the case diary. He stated that he had not demanded the ownership proof of Ex.P2 from the complainant.

6. PW­4 had gone alongwith PW­3 to the spot on the first day and had deposed in that regard, he has not been cross­examined.

FIR No. 509/06, PS. Pandav Nagar Page 4 of 52 St. Vs. Ashish Kumar Sharma etc.

7. PW­5 had registered the FIR and has proved the same as Ex.P5/A.

8. PW­6 is Sh. Shri Ram Jain, the landlord of the house wherein the incident had happened. He has deposed that in the year 2006 one Ashish had come to his house seeking a house on rent. After abut one week he came again with his wife and father in­law around 8.30 pm in a rikshaw with a few household articles but he refused to let out the house as he did not have any proof of his identity. Sh. S.P.Sharma, the father of deceased (examined as PW­8) told him that he was Deputy Director in Central Govt. and on being satisfied he gave ground floor of the house to them on rent. The witness categorically said that Sh. S.P.Sharma told him that Ashish and his wife had come to Delhi recently and he shall stay with them till they are settled down in Delhi and he would pay the rent of the premises. The witness further said that during their stay the family was living happily and Sh. S. P. Sharma used to go out on every week ends. The witness was cross­examined by Ld. Addl. PP. He admitted that he had taken the I.D Card of Sh. S.P.Sharma for verification and that Rashmi had committed suicide in the tenanted premises. He said that he had not told the police that when Rashmi came back from her matrimonial house on 02.10.06, she was looking sad. In his cross­examination he admitted one letter Ex.PW6/B, which was written in his handwriting. The I card of complainant was tendered by the prosecution in the cross examination of the witness, which has to be read in support of the statement of the witness that it was given to him by the father of the deceased. FIR No. 509/06, PS. Pandav Nagar Page 5 of 52 St. Vs. Ashish Kumar Sharma etc. The prosecution has not disputed any other part of the testimony of this witness. It is thus prosecution case proved by prosecution witness that accused Ashish, Deceased and complainant S.P. Sharma were living in the rented house and that Mr. Sharma used to go out on weekends.

9. PW­7 HC Subhash had taken the photographs of the spot, the negative of which are Ex.PW7/A1 to A7 and photographs are Ex.PW7/B1 to B7.

10. PW­9 is Sh. V.P. Singh SDM concerned. He has deposed that on receiving information from Addl. SHO, PS Pandav Nagar, he had reached the spot, where he met the father of deceased. He inspected the spot and found the deceased Rashmi hanging with a ceiling fan. He stated that before removing the body from the ceiling fan, her father met him at the spot and informed him that stool was removed by him from the bed and he could not give any satisfactory reply for having removed the stool. No suicide note could be find in the house. He asked the father of deceased to give a statement but he denied to give the statement. On 04.10.06 at LBS hospital, he conducted the inquest proceedings. The deceased was identified by relatives vide Ex.PW9/A & B. He attested the request of postmortem Ex.PW9/C. The father of deceased was requested to furnish statement and he gave a handwritten statement, which he attested. The statement is Ex.PW8/A. The mother of deceased also gave her hand­written statement Ex.PW9/D. The dead body was handed over to the parents vide memo Ex.PW9/E. In his cross­examination he stated that he had not restricted S.P.Sharma or his wife from giving statement in a particular manner. The FIR No. 509/06, PS. Pandav Nagar Page 6 of 52 St. Vs. Ashish Kumar Sharma etc. witness volunteered that both of them had given their handwritten statement at their free will and wish. He also stated voluntarily that he wanted to write the statements in his own handwriting and had noted down the particulars of father of deceased at point A on Ex.PW8/A but the father of deceased insisted to write the statement in his own handwriting.

11. PW­10 had proved the call details of mobile number 9871330672, which is in the name of Rama Shankar Sharma and has proved the relevant documents related to the phone.

12. PW­11 has proved that a cheque of Rs.1,00,000/­ was encashed on 25.03.06 from the account of the father of the deceased ( to prove that dowry of Rs.1,00,000/­ was demanded and given before the marriage).PW­12 had identified the dead body.

13. PW­15 has proved the postmortem report where she has opined that the cause of death was asphyxia consequent upon antemortem hanging. She has not mentioned any external injury except for the ligature mark over the front left side and right side of neck. The mark was missing over the left side nape of neck for a distance of 5 cms. The postmortem is suggestive of suicidal death. There is no cross examination of this witness by the complainant's counsel regarding possibility of homicidal death as has been pleaded by the complainant through out

14. PW­16 Inspector Harpal Singh has deposed that on 09.10.06 on transfer of FIR No. 509/06, PS. Pandav Nagar Page 7 of 52 St. Vs. Ashish Kumar Sharma etc. SI Dheeraj Singh, further investigation was assigned to him. He recorded the statements. He has proved the relevant arrests and personal search memos; the list of dowry articles; the call details of deceased and Ashish Sharma and filed the charge­ sheet. In his cross­examination he stated that the landlord of the house had informed him that Dr. S.P.Sharma used to reside with deceased at Pandav Nagar house and the house was arranged on his ID. He stated that he did not investigate whether the SMS sent from mobile no. 9868596525 (allegedly of father of deceased) was sent to land line no. 2262642. He stated that he had not taken out the printout of the text of SMS. He volunteered that CDR revealed that SMS was received when accused Ashish was in his office. He stated that he did not get the SMS examined from an expert. He did not see the text of SMS during investigation for his satisfaction. He admitted that as per the call details records an outgoing call was made from the mobile phone 9869596526 to the phone no. 05222711818. He did not inquire as to what had transpired between the two persons, who talked on this phone. The phone numbers are of father and mother of deceased respectively. He stated that he did not try to find out whether there was an outgoing entry in the mobile phone number 9868596526. He denied of having collected any evidence regarding visit of accused persons to the office of father of deceased in March, 2006. No list of istridhan articles signed by both the parties, if any prepared at the time of marriage was given to him. He stated that Dr. Sharma had not given any proof of bills and vouchers regarding the articles mentioned in Ex.PW8/C (list of dowry articles). He denied that Ex.PW16/DA and Ex.PW16/DB (statements of S.P.Sharma and Uma Sharma u/s. 161 FIR No. 509/06, PS. Pandav Nagar Page 8 of 52 St. Vs. Ashish Kumar Sharma etc. Cr.P.C recorded on 10.10.06) were fabricated after receiving of Ex.PW8/C i.e supplementary typed statement of PW­8.

15. The main witnesses of prosecution are PW­8,13 & 14. PW 8 is the father of deceased and the complainant in the case. His three statements were recorded during the investigation. Ex.PW8/A is the statement given by him in his own handwriting on 04.10.06 before the SDM. Ex.PW 16/DA is the statement recorded by police on 10.10.06 u/s. 161 Cr.P.C and Ex.PW8/B is the typed statement dt. 17.10.06 given by the complainant to the police. The witness deposed before the court that his daughter Rashmi was married to accused Ashish on 18.04.06 and two were residing with their other family members i.e Rama Shankar Sharma father, Richa Sharma mother, Ram Charan Sharma brother and Archana Sharma sister in­law of accused Ashish at Hathras. He says that in December, 2005 at the time of roka no specific demand was made but after some time a demand of Rs.2,00,000/­ was made before the engagement ceremony. The accused husband, brother in­law and father in­law refused to accept his assurance that everything of his daughter was their's, and they insisted on delivery of Rs.2,00,000/­ for purchasing household goods for settling accused Ashish in Delhi. In the month of March, 2006 Ashish came to his office and demanded Rs.2,00,000/­ immediately. They did not agree to the withdrawing of cash from GPF and forced him to pay immediately, accordingly a cheque of Rs.1,00,000/­ was issued in favour of Rama Shankar Sharma. He gave an explanation for having agreed to the dowry demand of accused persons by saying that since his daughter was FIR No. 509/06, PS. Pandav Nagar Page 9 of 52 St. Vs. Ashish Kumar Sharma etc. a Manglik and Ashish Kumar is also Manglik and such pairs are not easy to find, he had agreed to pay the dowry. He said that thereafter, the balance Rs.1,00,000/­ was demanded telephonically. On 06.04.06 when he went to Hathras alongwith his brother Dinesh Sharma, he was pressurized to give Rs.1,00,000/­. The accused threatened to cancel the engagement and raised further demand of Rs.2,50,000/­ in addition to Rs.1,00,000/­. When his father in­law Dev Dutt Sharma intervened the accused instead of understanding added demand of motor­cycle. He agreed to give the motor­cycle at the time of engagement ceremony. Motor­Cycle and Rs.50,000/ were given at the time of engagement ceremony and further demand of Rs.1,50,000/­ was raised. On 18.04.06 Rs.51,000/­ was demanded and given in cash and jewellary and clothes were also given. On 22.04.06 they went to Hathras and Rashmi came with them. He says that at Lucknow his daughter told him and his wife that his in­ laws were very greedy person and were pressurizing her to bring Rs.1,00,000/­ more and were not happy with the articles given in the marriage. They were expecting ornaments. Rashmi remained at Lucknow for two weeks and in 1st week of May, 2006 Ashish came to Lucknow and reminded them to pay Rs.1,00,000/­ in cash. Rashmi remained at Hathras up till middle of June,2006 and during this period she used to talk to him and her mother at Lucknow and would complain about being ill­ treated; not allowed to use telephone and being made to work like a servant. In June, 2006 Rashmi gave an interview in Delhi and got selected. In the middle of June he went to Hathras and took Rashmi to Lucknow, where she narrated her sufferings to him and his wife and stated that Ashish and his mother beat her because cash was not FIR No. 509/06, PS. Pandav Nagar Page 10 of 52 St. Vs. Ashish Kumar Sharma etc. paid. Rashmi also expressed her fear toward rowdy character of Ram Sharan Sharma. On 09.07.06 Rashmi was brought to Delhi by him and was received by Ashish at Railway. Station and they started living at B85, Pandav Nagar. He had helped them in arranging household articles. The witness says categorically that because of Rashmi's residing at Delhi all the accused persons except Ashish had become furious. Rashmi used to tell him that her brother in­law and sister in­law were threatening her on having come to Delhi. He used to support her morally and financially. Thereafter, he refers to two incidents of 09.08.06 and September, 2006. He says that on 01.10.06 Rashmi and her husband had gone to Hathras. He tried to talk to Rashmi on phone but her mother in­law and sister in­law picked up the phone and did not allow him to talk to to Rashmi. The sister in­law, however talked to his wife telephonically and said that no item should be sent on Karwachauth. He said that they used objectionable words for Rashmi but did not say 'who they are' since the conversation was telephonic and only sister in law was talking that too with his wife.

He deposed that Rashmi and her husband had returned to Delhi in the evening of 02/10/2006. He came back to Delhi in the morning of 03/10/2006, he wanted to give some articles to Rashmi and so he went to her house at Pandav Nagar. He says that he met Rashmi near a temple and sensed that she was tensed and afraid. She started weeping and told him that her husband, her father in law, her mother in law, her sister in law Archna Sharma and brother in law Ram Sharan Sharma were greedy people and they were torturing her and that her life was in danger (This was an improvement from what the witness had written in Ex PW8/A). He further says FIR No. 509/06, PS. Pandav Nagar Page 11 of 52 St. Vs. Ashish Kumar Sharma etc. that Rashmi left because she was in hurry; he came to the house; he delivered the goods brought by him from Lucknow; Ashish left without taking breakfast and he left his mobile. Thereafter he explains on how he came to the house and how the dead body was recovered etc.

16. In his cross examination the witness stated that he had satisfied himself about the family of the boy before finalization of the marriage. Almost the entire examination in chief of the witness in form of 25 questions was put to him as it was in addition to what the witness had written in his statement to the SDM for the first time on 04/10/2006. The witness stated in reply to each questions that the statement given on 04/10/2006 was not in full details as such this part (the part put to him in each question) was not included in said statement because he was not in full state of mind and became perturbed because of untimely death of his daughter and as such said statement did not contain all the details.

The defence, however has claimed that the complainant was not at all perturbed for he gave his detailed statement in his own handwriting. It was argued that the SDM has categorically stated that he wanted to write the statement, however, the complainant insisted on writing his own statement himself. It was argued that the complainant had given the vital information in his statement and this statement is in fact reflective of the cause of suicide by the deceased i.e the dispute regarding place of settlement of the couple.

To understand the nature of additions made in the statements given later FIR No. 509/06, PS. Pandav Nagar Page 12 of 52 St. Vs. Ashish Kumar Sharma etc. and in court, it would be just and expedient to reproduce EX PW8/A hereunder:

"that I have got my daughter Miss Rashmi Sharma married on 18/04/2006 with Mr Ashish Kumar Sharma, aged 27 s/o Sh Ram Shankar Sharma, R/O 2174, Siyal Khera Sudeep Colony, Nai Basti, Hathras. I gave household goods, motor cycle, Jewelry and cash Rs 2.5 lakh for purchase of other items and spent about 6.5 lakh Rs. on marriage. Despite of my best capabilities they were demanding more cash. To this date I had not made any complaint to any agency. Somehow marriage was solemnized amicably.

Later, on occasion when gifts were to be sent the mother in law Mrs Richa Sharma used to taunt and insult my daughter in presence of other relatives & neighbours. My daughter miss Rashmi Sharma, is B.Com, B.Lib & ISC, M.Lib & ISC. She was earlier working as librarian in Modern Academy Lucknow. After marriage she lived in her in laws place for over two months. During this period, she was harassed and mentally tortured. She therefore requested me to bring her to New Delhi where her husband had been working. She also wanted to work as librarian and she got job and joined Vanasthali Public School Mayur Vihar phase III. Her in laws mainly her mother in law, brother in law Mr. Bobby, his sister in law (sic) Mrs Archana tried to pressurise her to live in Hathras and her husband Ashish also supported his family. Later in July, 2006, she shifted to FIR No. 509/06, PS. Pandav Nagar Page 13 of 52 St. Vs. Ashish Kumar Sharma etc. New Delhi in P84, Pandav Nagar and after that her in laws became furious and she went to Hathras for one day each at Raksha Bandhan & Dussehra. During this period she was threatened with dire consequences. After that they said that her gifts will be returned and no more relation will be kept with her. On Dussehra when she returned to New Delhi with her husband her sister in law Mrs Archana telephoned to my wife Mrs Uma Sharma at Lucknow criticizing my daughter's behaviour and asked not to send gifts on the occasion of Karwa Chauth and also threatened that if it will be sent, it would be returned back to her parents. Next day on 3rd Aug in the morning I met her when she was going to her school and his (sic) husband was at his house P­84 Pandav Nagar. She had prepared breakfast, lunch packet for her husband but neither he took break fast nor carried his lunch. He did not return in time in the evening & when at 6.30PM I came back to meet her, house was found bolted from inside. At this time I telephoned Mr Ashish thrice about any problem he did not reply and closed the mobile call. He returned much later after police had come. It is evident that after her return from Hathras her husband would have misbehaved & threatened her.

In all the maltreatment, torture & harassment her husband never helped her & took her side. He wanted to go back home at Hathras to do BTC training as per pressure of his father & wanted to take Rashmi to Hathras. She was afraid to go there. And only for one day she went for Dussehra & in one day she was so much tortured that the next day she hanged herself without even telephoning me or her FIR No. 509/06, PS. Pandav Nagar Page 14 of 52 St. Vs. Ashish Kumar Sharma etc. mother at Lucknow."

17. PW­8 in his evidence before the court stated that when he met the deceased in the morning of 03.10.06 she looked tensed and she stated that her husband, father in­law, mother in­law, sister in­law and brother in­law were greedy persons and they were torturing her and that her life was in danger. He, however, did not say anything of this kind in his statement given to the SDM Ex.PW8/A reproduced above. It was submitted by the complainant that later statement were in fact in the form of explanations; the concealment of a fact cannot be equated with the omission. He stated that some omissions can take place on certain circumstances under which witnesses were making the statements but subsequently the omissions were explained; there is difference between concealment and omission as concealment is intentional unlike omission.

In support of his contention the complainant relied upon the judgment cited as 2011(2)ACJ076(SC) . The Hon'ble Supreme Court in the aforesaid judgment differentiated between normal discrepancies and the contradictions. It was held that :

" In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about truthfulness of the witness and other witnesses also make material improvements while deposing in the court, such evidence cannot be safe to rely upon. FIR No. 509/06, PS. Pandav Nagar Page 15 of 52 St. Vs. Ashish Kumar Sharma etc. However minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not effect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence."

Though the prosecution has been saying and this has been the stand of PW­ 8 throughout that as he was perturbed due to untimely death of his daughter he could not give details of dowry demand; his non­mentioning of specific incident (the daughter in tensed state and having spoken about her in laws greedy nature) of 3rd October, 2006, in his statement given in his own handwriting on 04/10/2006, cannot be justified on this ground. He wrote in his statement that Rashmi had prepared breakfast and lunch packet for his (sic) husband but neither he took breakfast nor carried his lunch. Thus he noticed that her daughter's husband did not eat the breakfast and did not take the lunch and thought that it was important; remembered to get the same recorded in his statement but did not write the state of mind of his daughter as perceived by him and what she said specifically against the accused persons. This when he wants the court to believe that the cause of death was dowry demand and not the differences between the couple. Selective memory of witness on 04.10.06 at the time of giving of statement to the SDM creates a doubt in the case of prosecution regarding deceased having stated the later added part of statement at all. In the entire statement Ex.PW8/A there is not a single word stated about dowry demand except that the accused were not happy and were demanding cash though FIR No. 509/06, PS. Pandav Nagar Page 16 of 52 St. Vs. Ashish Kumar Sharma etc. specific instances have been mentioned regarding mental torture given to the deceased. All the details regarding how her daughter came to Delhi; how her in ­laws were not happy with their (Rashmi & Ashish) shifting to Delhi; how they were pressurizing them to return to Hathras are written in Ex PW8/A. The witness even stated in this statement that the deceased was threatened with dire consequences and it was stated that her gifts will be returned and no more relations will be kept with her and her husband but still he does not say that all this was on account of dowry demand or Rs 50,000 was demanded as was later added by him in his statements. He writes in Ex PW8/A that accused Archana had criticized his daughter's behavior and had asked them not to send gifts on Karwa Chauth and had stated that if sent they will be returned yet did not say that this all was because of unfulfilled demand of dowry. If it was said that gifts (given on Karwa Chauth) would be returned if Rs 50,000 was not given as is the witnesse's claim in the court, the same would have found a mention in the ExPW8/A alongwith the incident of Karwa Chauth. He writes in Ex PW8/A that his daughter was tortured, mal­treated and harassed and her husband never take care of her and never took her side; he wanted to go back to Hathras to do the BTC Course and wanted to take Rashmi to Hathras but again does not say that there was any demand of dowry. The only mention about the dowry is at the beginning of the statement where he says that he had given dowry and had spent specified amount in the marriage. He does not say that demands were made from her daughter after the marriage and what if at all the demands were.

He specifically mentions about the incident after 09.07.06 and says that FIR No. 509/06, PS. Pandav Nagar Page 17 of 52 St. Vs. Ashish Kumar Sharma etc. when deceased started residing at Delhi then remaining accused persons except Ashish became furious. The statement indicates that accused Ashish was not upset but other accused were upset with the arrangement of deceased and accused Ashish shifting to Delhi. He says that he used to talk to Rashmi almost daily and she used to inform him that her brother in­law and sister in­law were threatening as to why she had come to Delhi and she was afraid. He had conveyed the feeling to Ashish and his father. He used to support Rashmi morally and financially. The statement categorically indicates that there was a discord on account of Rashmi having shifted to Delhi. The witness is not alleging that there was any threatening given for not bringing dowry. He also does not say that he used to support his daughter morally and financially because of any demands raised by accused persons.

The Hon'ble Supreme court in State of UP versus Naresh (supra) has differentiated when an omission is to be considered vital and it says that where the omission is such that it touches the root of the case, it may become doubtful evidence.

18. In the present case as discussed in detail above the prosecution witnesses omitted to mention the most vital information even of the date of incident and explained everything in a later statement recorded after six days from the date of first statement. The improvements made in the case are vital and cannot be explained by mere assertion of disturbed mental status on the date of incident. It is relevant to note that all the major incidents of dispute have been mentioned in ExPW8/A yet nothing FIR No. 509/06, PS. Pandav Nagar Page 18 of 52 St. Vs. Ashish Kumar Sharma etc. specific on dowry demands related to these specific incidents was mentioned by complainant, not even in passing reference; which only strengthens the conclusion that later statements were after thoughts and manipulated.

Another relevant judgment on the issue is of Hon'ble Delhi High Court in 338 Matrimonial Law Reporter 2012 titled State Vs. Mohd Furkan & Ors. Under similar circumstatnces Hon'ble Delhi High court held : " It may also be pointed out that when confronted with statements Ex.PW2/DA and Ex. PW2/DB, PW­2 clearly improved upon her earlier version and deposed about the alleged dowry demand of Rs. 40/50,000/­ in cash and one car when she stepped into the witness­ box. A perusal of the statements Ex.PW3/DA and Ex.PW3/DB also show that PW­3 also improved upon his earlier version when he deposed in the Court. Intimation about the death ( which allegedly occurred at 11 am­ according to PW­2) was given at 4.37 PM on the date of the incident. Further, and vitally neither PW­2 nor PW­3 made any statement implicating the accused in regard to dowry harassment in the first statement recorded during investigation. Although, our notice was drawn to written complaint by PW­2 to the concerned DCP three days after the incident, we are of the opinion that the same cannot be given much importance because this witness testified".

The Hon'ble High Court thus categorically held that improvements made at a later stage render the case of the case of the prosecution less believable, wherever it can be shown that the true facts were not brought on record at first instance.

The case squarely covers the facts of the present case; since the FIR No. 509/06, PS. Pandav Nagar Page 19 of 52 St. Vs. Ashish Kumar Sharma etc. complainant came up with highly improved version in his statement recorded six days later on 10/10/2006 though he had not said anything specific in his first statement Ex PW 8/A. Ld counsel for the accused persons has relied upon the judgment of Hon'ble Supreme Court in 2010 (4) RCR (Criminal) 45 titled Preeti Gupta & Another Vs. State of Jharkhand & Another to stress that the later statements in this case were on legal advice. In the cited judgment Hon'ble Supreme Court held that " Large number of complaints (related to dowry) are not bonafide - Majority of complaints are filed either on the advice of members of Bar or with their concurrence with exaggerated versions­ Members of Bar asked to maintain its noble traditions and should treat complaint under Section 498­A IPC as a basic human problem and endeavour to help the parties in arriving at a amicable resolution of that human problem.

Relying upon the judgment Ld Counsel argued that the complainant has made improvements in his later statements, which are apparently on legal advice and thus has added the angle of dowry in a case of simple suicide.

19. Coming back to the evidence of PW 8 recorded in the court.

PW8 says specifically that on 0­9.08.06 on the occasion of Raksha Bandhan Rashmi and Ashish went to Hathras for one day and Rashmi told him telephonically that she was threatened by her mother in­law for ' living at Delhi'. He adds that Rashmi told him that mother in ­law was asking for cash but nothing FIR No. 509/06, PS. Pandav Nagar Page 20 of 52 St. Vs. Ashish Kumar Sharma etc. beyond that. Thereafter, he speaks of the incident of 1st week of September and says that during 1st week of September accused Rama Shankar and his wife visited the house of Rashmi and stayed there for a week and Rashmi conveyed him that during this period, she was pressurized by both for ' staying at Delhi and not staying at Hathras'. Ashish was also trying to leave Delhi and wanted to join a BTC Course at Hathras. Rashmi told him that Ashish did not want her to join job at Delhi and was not willing to deposit her certificates in School. Again there is no mention of dowry demand by any of the accused persons. Thereafter, again he says vaguely that Rashmi informed him telephonically that she was being harassed by her husband for money, what was the manner of harassment and what steps did he take, while living in the same house has not been explained in the evidence.

20. The allegations of Dowry demand made in evidence in the court are thus also vague and non specific. They are also contradicting the evidence of other witnesses as shall be discussed herein after.

21. Coming to the other aspects of the testimony of PW 8.

The witness says in his evidence that he had requested the SDM Sh. V.P. Singh to get the body of her daughter checked by a doctor to find out if she was alive but he did not do that. He says that the feet of the body was resting on the bed and the body was in a slanting position. On the contrary the SDM has deposed that this witness PW8 had told him that there was a stool, which was removed by him and no FIR No. 509/06, PS. Pandav Nagar Page 21 of 52 St. Vs. Ashish Kumar Sharma etc. explanation for having removed the stool was given by the witness.

22. The witness says that there were scuffle marks on the hands of the dead body. The postmortem report, however does not support this fact. It in fact says that the only external injury on the dead body was that on the neck. Witness says that the bed was totally clean but the SDM in his evidence says that the bed was wet.

This part of the evidence given by the witness was an attempt to show that the death of his daughter was homicidal and not a suicide. The prosecution, however, itself has not claimed it to be a homicidal death. No charge under section 302 IPC was framed in alternate. The medical evidence has ruled out the possibility of the death being homicidal. No injury has been found on the dead body. The injury on neck is also showing a formation of hanging and not strangulation for if it was strangulation the injury on the neck would have been complete round, which is not so. The witness has made an unsuccessful attempt by giving the evidence in aforesaid form, to get the accused persons convicted for murder, though there is no evidence suggesting so. This when he himself said in Ex PW8/A that his daughter hanged herself and his wife in her statement to the SDM (EX PW 9/D) said that her daughter was compelled to commit suicide due to torture and harassment given by accused. The evidence indicates how vindictive the complainant has gone after the death of his daughter.

23. In his evidence and says that he doubted the bonafides of the IO and that of FIR No. 509/06, PS. Pandav Nagar Page 22 of 52 St. Vs. Ashish Kumar Sharma etc. the SDM also. He gave a statement in form of complaint against SI Dheeraj Singh for having colluded with accused in preparing Ex PW3/E, wherein it is written that the father of the deceased said that there was no case of dowry and the death was due to differences between the couple. He says that he never made any statement before PW3 and that PW3/E is a forged document. The fact, however, is that the medical report is also not supporting the version of the witness. In fact the Land Lord of the house and the second IO have also given the statements, which are not to the taste of the witness. It cannot be believed that all the independent persons would have conspired against the complainant to favour the accused.

The Hon'ble Supreme Court in 2012(2) RCR (criminal) 231 held that there are three kind of witnesses (i) those that are wholly reliable (ii) those that are wholly unreliable (iii) who are neither wholly reliable nor wholly unreliable. In the case of third category it was held that the court have to be circumspect and have to look for corroboration in material particulars by reliable testimony direct or circumstantial.

The evidence of PW 8 therefore required corroboration from independent witness on all the aspects. The other witnesses are PW 13 & 14

24. PW14 in her statement given to the SDM on 04/10/2006 stated that they had married their daughter with accused and had given dowry more than their status yet the family of the boy used to demand dowry and harass her daughter for the same (no specifics of the demands have been mentioned). Thereafter she says that a message was sent from the mobile of her husband to 0112262642 and 9871330672. FIR No. 509/06, PS. Pandav Nagar Page 23 of 52 St. Vs. Ashish Kumar Sharma etc. the text as per the witness was " Hi Ashish tum kaise ho. Jab tak tum ghar pahunchoge tab tak main is dunia mein nahi rahungi. Main marne se pehle tumhari awaz sunana chahti thi woh sun li khush rehna. Doosri shadi apni pasand se karna. Galtian maf karna." the message was received at 12:09 hours on 04th October. The statement of the mother further goes on that her daughter was forced by her in laws to die and she committed suicide due to taunts given by them. The statement further is "...uper likha bayan maine apni marzi se va bina kisi dabav ke dia hai aur sahi hai. Maine koi bat chhupai nahi hai."

This statement is Ex PW9/D.

25. Thereafter the witness gave another statement under section 161 Cr.P.C, which is an elaborate statement mentioning various allegations including the allegations of demand of dowry.

The chief examination of the witness was conducted on two dates. On13/3/2012 her first statement was recorded. There is an observation of the court that the evidence had to be deferred as Dr. S.P. Sharma (PW 8) interrupted the court proceedings. The ground of interruption was that the senior counsel for the complainant was not present though his associate and also the Prosecutor were present in the court but Dr S.P. Sharma was not satisfied with the assistance being provided by Mr Himanshu Mahajan, the associate of senior counsel Sh P.L. Behl.

The evidence of the first date is about how the marriage was solemnized and what all was given and spent. Without mentioning the date the witness says that FIR No. 509/06, PS. Pandav Nagar Page 24 of 52 St. Vs. Ashish Kumar Sharma etc. her daughter was pressurized to bring Rs 50,000 by her Jeth and other accused. She says that Rs 50,000 was demanded from them telephonically also. She says that on the occasion of Karwa Chauth accused Archna had told that if Rs 50,000 were not given the articles sent will be returned. She says that the parents of accused Harish had stayed at the Delhi house of the deceased and had then demanded Rs. 50000/. She says that Rashmi's in laws wanted her to come to Hathras but she was afraid of going there as she feared of being tortured there. (the reason of torture has not been mentioned). She has mentioned of an incident where she asked accused Ashish why he was not wearing the ring and watch given in marriage and he replied that his mother told him not to wear the same due to fear of theft. The implication of the statement and importance of the same has not been explained in the evidence and how it could be a harassment related to dowry is also not clear. The witness says that on 02.10.2006 her daughter had gone to Hathras with her husband where she heard the conversation between Ashish (husband) and Richa (mother in law). Thereafter accused Archna called her and told her that Rashmi had left without taking food after hearing the conversation between her husband and mother in law. She mentioned in her evidence that when her husband reached Delhi on 03/10/2006 Rashmi had met him on way. She spoke of her husband having gone to the house; having met Ashish and Rashmi having prepared breakfast and lunch for Ashish.

The witness, however, does not say that her husband told her anything about the state of mind of deceased or her having said anything about the accused. She says in her evidence that accused Archna had an objection on her husband's visits FIR No. 509/06, PS. Pandav Nagar Page 25 of 52 St. Vs. Ashish Kumar Sharma etc. to the house of deceased.

26. Having said in her statement to the SDM that her daughter committed suicide due to pressure and taunts given by the accused, the witness changed her version in the court to suit her husband's claim and stated that the death of her daughter did not look like a suicide.

27. In her cross examination major portion of the evidence of witness was confronted with what she had stated to the SDM. On the first date of cross examination the witness replied the questions and did not say anything regarding her mental state on 04/10/2006 at the time of recording of the statement before the SDM, however, on the next date of cross examination she stated that the statement given to the SDM was merely the gist and that the complete statement was not given as she was perturbed due to untimely death of her daughter. On this a suggestion was given to the witness that she was deposing under the influence of her husband.

She admitted in her cross examination that the motorcycle allegedly given in the marriage was in the name of the brother of her husband. The demand of sewing machine was mentioned for the first time in her cross examination. The witness in her cross examination has stated that the accused Archna had talked with her on telephone on 02/10/2006 for thirty minutes, however, nothing on what was talked about has been mentioned in the evidence except one line that Rashmi had left after hearing some conversation between her husband and mother in law. She did not even FIR No. 509/06, PS. Pandav Nagar Page 26 of 52 St. Vs. Ashish Kumar Sharma etc. try to find out what this conversation was, atleast it so appears from her testimony.

28. The witness says that she had talked with her daughter on 03/10/2006 between 7 & 8 am. This was perhaps her last telephonic conversation with her parent. Both the parents, however, are silent on what the mother and the daughter talked about in the morning of eventful day.

There was a suggestion given to the witness that the fact of her daughter being a manglik was not informed to the family of the accused. The witness admitted in her cross examination that her father had revealed it to her that the marriage of Bobby (accused Ram Sharan) was a dowry less marriage. A suggestion was given to the witness that on 03/10/2006 her husband had scolded the deceased in having failed to convince accused Ashish against joining the BTC course.

29. The statement of PW 14 is self contradictory; it also contradicts the prosecution case and the evidence of PW8 on material aspects.

30. The statement of PW­8 speaks categorically of incidents of alleged harassment as under:

In the first week of May, 2006 Ashish reminded them to bring Rs.1,00,000/­ in cash (not supported by PW­14). PW8 says that in the middle of June, 2006 deceased was brought to Lucknow from Hathras and she said that she was being beaten by Ashish and his mother because cash was not paid. No amount of cash has been mentioned. PW­14 who lives in the same house, however, does not say that she FIR No. 509/06, PS. Pandav Nagar Page 27 of 52 St. Vs. Ashish Kumar Sharma etc. was ever told by her daughter during her stay at Lucknow that Ashish Sharma and Richa Sharma were beating her for cash. She speaks of demand of Rs 50,000/ and not Rs 1,00,000/. There is as such contradiction in the testimony of PW­8 and 14 regarding demanded amount and demands raised.

PW­8 says that on 03.10.06 when he reached Delhi he went to the house at Laxmi Nagar and met her near a Temple. She was upset and started weeping. She stated that all the accused persons are greedy people and that they were torturing her and her life was in danger. He says that thereafter, he went to the matrimonial house of Rashmi, where accused Ashish met him. Ashish was in hurry and he left the house without taking breakfast. Regarding the incident immediately before the suicide, PW­14 gives a more specific evidence. He says that accused Archana had told her that Rashmi had left the house without taking food after hearing some conversation between her husband and mother in­law. There is nothing stated regarding what this conversation between accused Ashish and Richa Sharma was. Was there any thing regarding demand of dowry or their staying separately.

31. PW­8 in his chief examination has mentioned about demand of balance amount which read in continuation of his statement Ex.PW16/DA in which the amount stated was about Rs.1,50,000/­. In his statement recorded before the court he says that in the first week of May 2006 Ashish had come to take Rashmi to home and at that time he had demanded Rs.1,00,000/­ in cash. No where in his statement PW­ 14 refers to this demand of Rs.1,00,000/­ which as per PW­8 was made at their house FIR No. 509/06, PS. Pandav Nagar Page 28 of 52 St. Vs. Ashish Kumar Sharma etc. in May, 2006. PW­8 is saying that the demand was made from ' us' however, PW­14 is not mentioning about any such demand. PW­14 instead is saying that all the accused persons were making demand of Rs.50,00/­ and accused Archana had also demanded Rs.50,000/­ telephonically on the occasion of Karwa Chauth. Ex PW8/A mentions the incident of Karwa Chauth but not the demand of Rs 50,000/ by Archna.

32. PW 14 in her statement Ex PW9/D referred to an SMS sent by the deceased to Ashish. There is evidence of the seizure of mobile phone no 9868596526 Ex P 3 from which the message was allegedly sent. This as per prosecution story is number of Dr. Sharma and he had left this number with his daughter. What is the relevance of the seizure of this mobile has not been explained during arguments either by counsel for complainant or by counsel for the accused persons. The wife of the complainant in Ex PW9/D says that there was a message sent from this number to accused Ashish. She says that this message was from deceased to Ashish. The message as per Ex PW9/D was " Hi Ashish tum kaise ho. Jab tak tum ghar pahunchoge tab tak main is dunia mein nahi rahungi. Main marne se pehle tumhari awaz sunana chahti thi woh sun li khush rehna. Doosri shadi apni pasand se karna. Galtian maf karna."

PW 14 is the only person who has seen this message and reproduced the contents of the same in her statement given to accused. The I.O. says that he did not check the text; did not get it checked from someone else; did not take a copy of the text. What was the content of this message has not been verified by any independent person. PW 14 in her statement said that this message was delivered on 04/10/2006 FIR No. 509/06, PS. Pandav Nagar Page 29 of 52 St. Vs. Ashish Kumar Sharma etc. i.e. after the death of the deceased. Who sent the message?; what was the time of sending it?; what was the actual text?; why was the message sent to a land line in addition to the mobile of accused Ashish?, are the questions not answered by the prosecution. Since the sending of message was pleaded by PW 14 in her statement Ex PW9/D, it was for prosecution to prove relevance and genuinity of this message. Nothing, however, is stated by prosecution witnesses about this message. PW 14 also does not utter anything about this message in her evidence.

Even if the contents of Ex. PW9/D are accepted as such being the contents of document and the message accepted as having been sent ­­though not proved by the prosecution ­­ the message is not implicating the accused persons for a dowry related harassment. It merely shows that accused Ashish was not happy with his marriage to deceased and so the deceased advised her to marry someone as per his choice.

33. There is one more witness examined by prosecution in support of the prosecution case. PW 13 Sh Dev Dutt Sharma Father of PW 14 and grand father of deceased has deposed that there was no demand of any kind from the side of the accused. He says that her son in law PW 8 had given a cheque of Rs 1,00,000/ to Ashish and then adds that the money was given because parents of Ashish asked him to give this money. On 10/4/2006 father of the accused Asish asked him to give a motorcycle in marriage. On 15/04/2006 motorcycle and 1,00,000/ Rs were given. When Barat arrived Rs 51,000/ was demanded and given. He says that deceased used FIR No. 509/06, PS. Pandav Nagar Page 30 of 52 St. Vs. Ashish Kumar Sharma etc. to visit them and tell that she was being harassed for dowry. He talked with Rama Shankar with whom he had old relations and he gave an assurance not to harass the deceased yet the accused did not mend their ways. The witness stated that he did not remember if the marriage of Rama Shankar with Archna was a dowry less marriage. A suggestion was given that he was intentionally pleading ignorance on the issue. (His daughter PW 14, however said that her father told him that the marriage of Archna and Rama Shankar was a dowry less marriage). In his evidence the witness stated that he had recommended the name of Ashish and his family as he was satisfied about the family of the accused persons.

34. The evidence of this witness is relevant on two aspects one he says in the beginning that there was no demand made by the accused and that Rs 1,00,000 was given by father of deceased. Suddenly he changes the version and as if having been reminded of something speaks of the demand. Only one of the two statement given in on breath can be correct. There was no demand and money was given or money was given on demand. He tried to avoid the material question regarding dowryless marriage of the brother of Ashish, though his own daughter said that her father had told him that the marriage of Ram Sharan and Archna was a dowry less marriage. The witness thus has not spoken complete truth before the court.

35. From the evidence of the three witnesses two occasions of demand of dowry have come up. A cheque of Rs 1,00,000 was given to the accused persons. The FIR No. 509/06, PS. Pandav Nagar Page 31 of 52 St. Vs. Ashish Kumar Sharma etc. complainant says that the accused were insisting that the payment be made on a specific day and so he was compelled to issue the cheque. This day was when the accused visited his office. The accused examined the record of Krishi Bhawan to prove that there was no visit of any of the accused persons at his office on the stated date. Thus challenging the claim of the complainant regarding the manner of the payment though not denying the acceptance of the amount. The evidence DW1 Inder Mohan proves that the accused did not visit the office of the complainant between 1/03/2006 to 31/03/2006 the period mentioned by the complainant. The complainat, however claims that he was working at Shastri Bhawan and not at Krishi Bhawan and so the record produced does not help the defence at all.

The witness in his own cross examination dated 16/07/2011 at page 11 stated that the accused Ashish cane to his office at Krishi bhawan to demand 2,00,000 Rs. in the first week of March 2006. The accused accordingly summoned the relevant witness from Krishi Bhawan. Had the witness stated correctly that Ashish came to his office at Shastri Bhawan, the accused could have summoned the relevant record from there also. The witness admitted in his evidence that pass is to be taken to enter his office. The accused thus has proved his bonafide. If the complainant gave a wrong statement before the court the accused cannot be penalized for the same. It in any case stands proved that accused Ashish did not visit Krishi Bhawan in March 2006 as claimed by the complainant. The later improvements by the complainant during argument are of no avail.

FIR No. 509/06, PS. Pandav Nagar Page 32 of 52 St. Vs. Ashish Kumar Sharma etc.

36. The other aspect is that the money was no doubt given. Accused claim that this cheque was in fact given to return the money, which the complainant had taken from the accused Ashish for arranging a Government Job. It was argued that the complainant had first taken the money, however, when the talks for marriage initiated he returned the money in view of the relation that the accused was going to share with him. In support he has relied upon one letter (ex PW8/DA) written by the complainant where it is mentioned that he is looking for a suitable job for Ashish. Ld Counsel for the complainant has termed the argument highly unbelievable. Be it whatever, the issuance of this cheque merely proves that the complainant gave the money to accused. The complainant has said in his evidence that the amount of Rs 2,00,000/ was asked for purchasing household goods for settling accused Ashish in Delhi. The money if at all was demanded not as dowry but for settling the couple, which was a soer the choice of the deceased and her father. The giving of gifts, cash etc in marriage is not a crime unless it is proved that it was given on demand. The complainant has contradicted his own stand that Rs 2,00,000/ was demanded as dowry. At the same time his own statement regarding the time and place of demand has become doubtful and thus leaving a probability that he himself gave the money to get her daughter settled in Delhi. This also is strengthens the version of the defence that on the occasion of Karwa Chauth the gifts were refused because the accused family did not believe in taking gifts.

37. The next it is said that there was a demand of motor cycle which was given in marriage. The motorcycle it is proved was in the name of brother of complainant. FIR No. 509/06, PS. Pandav Nagar Page 33 of 52 St. Vs. Ashish Kumar Sharma etc. There is nothing on record to show that the brother of complainant had gifted it to the accused. In fact this brother has not even been examined as prosecution witness. He is the owner of the vehicle and there is no evidence on his claim regarding the vehicle. The counsel for accused has specifically argued that Ashish did not have a driving license and the vehicle was used by Dr. S. P. Sharma for commuting. The prosecution thus has failed to prove that any motor cycle was given in dowry to accused Ashish by the complainant.

38. The complainant has pleaded that he despite being an educated person acceded to the demands of the accused since his daughter was manglik and accused Ashish was also manglik and that such matches are rare to find.

Ld counsel for the accused has argued that accused Ashish is not a manglik and the fact that Rashmi was a manglik was not mentioned in the Bio Data provided to them. In support he filed on record the Bio Data of the deceased, which was allegedly given to them at the time of marriage. The counsel for the statement argued that the Bio Data filed with Ex PW8/DB is not of marriage but for educational purposes.

The complainant has taken a specific plea that only ground why dowry demands were acceded to and would not have been acceded to otherwise, was that both deceased and the accused Ashish were manglik. The accused had challenged this ground by bringing on record a bio­data of the deceased, where she has not been shown as a manglik and the accused Ashish is also pleading that he is not a manglik. FIR No. 509/06, PS. Pandav Nagar Page 34 of 52 St. Vs. Ashish Kumar Sharma etc. It was, therefore, for the complainant to have proved that the two were mangliks. The complainant in his arguments stated that it was for the accused to have disproved that the two were not manglik by producing the documents. The presumption of dowry death under the law is only where it is proved that the deceased was subjected to cruelty for dowry soon before death; there is no presumption that the prosecution is not required to prove its claim regarding giving and demand of dowry and the facts stated by the prosecution witnesses in support of the case of prosecution. The complainant had to prove that there was a demand soon before the death. He was not required to justify why he gave dowry, but once he made a statement giving reason for having given the dowry, it was for him to have proved it and not for the accused to have rebutted without it being proved by the complainant. The accused persons have disputed this fact and they have filed a bio data of the deceased wherein the fact of her being manglik has not been mentioned; after this it was for the complainant to have proved his claim on the issue by bringing on the relevant document on record. As of now the evidence on the record is not supporting the contention of the complainant. Bio Data at page 623 filed alongwith Ex PW8/DB is not a resume for job. It has the names of uncles and aunts of deceased mentioned in it. It also says that deceased's family is vegetarian. Not most of the employer's would be interested in uncles and aunts of its employees and definitely not in whether the employee's family was a vegetarian or not.

Ld counsel for the accused has relied upon the judgment of Hon'ble Delhi High court in Neera Singh versus the State 2008(3)RCR(Criminal) 287 wherein the FIR No. 509/06, PS. Pandav Nagar Page 35 of 52 St. Vs. Ashish Kumar Sharma etc. Hon'ble High Court held that where the marriages are solemnized by educated class despite demand of dowry made prior to marriage the family of such women becomes accomplice for offences related to dowry. It was argued that the complainant was a highly educated man and his daughter was also well educated; he should not have given in to the demands of dowry and should not have married his daughter in such a family. The complainant in this regard has taken a verbal plea of his daughter being a manglik but the accused persons have challenged this plea by bringing on record the bio data of the deceased, which does not have the fact of her being manglik mentioned in it. Even if the girl was a manglik as claimed by complainant, it was not logical to have married her to the dowry hungry persons (as claimed by the complainant), if the complainant had come to know about their greed.

The accused in its attempt to rebut the presumption of law challenged the version of the complainant with a specific denial and a document. It was thereafter for the complainant to have proved that his version and not that of the accused was correct.

39. The complainant and PW 14 stated that after the marriage of deceased with accused they came to know that accused Archna wanted to marry her sister to Ashish. The statement of PW8 and PW14 regarding this disclosure is contradictory on time.

Ld. defence counsel has relied upon the judgment of Hon'ble Delhi High Court in 2003(2) JCC 881 wherein the Hon'ble High Court held that the these kind of allegations though unkind, they cannot be treated as constituting offence under FIR No. 509/06, PS. Pandav Nagar Page 36 of 52 St. Vs. Ashish Kumar Sharma etc. section 498 A IPC.

40. The complainant has claimed that accused Ashish never supported the deceased against harassment caused by the other accused. He, however, himself admits that Ashish had brought the deceased to Delhi against the wishes of his family members. In Delhi everything was arranged by complainant himself. So to say that accused Ashish did not support the deceased seems factually incorrect.

41. Accused had taken specific plea that the father of deceased was upset with the planning of accused Ashish to do a BTC Course, which father of deceased did not like because of which there was a continuous tension going on between him and his son in­law and this created disharmony in the matrimonial life of his daughter. This fact finds strength from the statement Ex.PW8/A. PW­8 in his statement Ex.PW8/B has also stated that the father of Ashish was pressurizing him not to follow his (complainant's) advice related to his career in Computer Engineering and was insisting upon him to join training for BTC which enables a person to become a primary teacher. He further says that it (the BTC course) was too demeaning for a graduate in computer sciences and engineering. The kind of words used by the complainant indicate how strongly he felt about the decision of his son in law, accused Ashish, to join BTC course.

42. The witness (PW 8) has been reluctant to accept that he was living with his FIR No. 509/06, PS. Pandav Nagar Page 37 of 52 St. Vs. Ashish Kumar Sharma etc. daughter at the rented accommodation though it has been said so by PW­6,who has categorically said that the house was given on rent on the guarantee of the father of the deceased. The witness said in his evidence that Dr. S.P. Sharma used to live with the coupe at the rented accommodation and that he used to go out during weekends. PW 6 is an independent witness and there was no reason with him to have deposed falsely. The version of PW 6 has been supported by IO PW 26, who also stated in his evidence that PW 6 had informed him that Dr Sharma used to live with the couple. PW 8 in one statement also said that he used to leave his mobile phone with his daughter, which is possible only if he lives with her; though he later improved his statement by saying that he used to leave the phone occasionally and not daily. Ld counsel for the complainant argued that the complainant was not living with the deceased and this can be seen from the fact that his different address at every place has been mentioned. There is still no answer to how the I card of the complainant came to the hands of PW6 the land lord. Why PW6 would depose that he was living with the deceased & why PW26 (who was given the case after the complainant allegedly made complaint against the previous I.O. and against whom the complainant had no grievance) would have said that he was informed by PW 6 that Dr. Sharma was residing with the deceased and accused Ashish.

43. The complainant in fact challenged the case of prosecution also by claiming that he never went to take the house on rent and his I Card was misused (statement Ex PW8 /DA), when in fact the prosecution witness has deposed that PW8 had come for taking the house on rent and on his guarantee the house was given on FIR No. 509/06, PS. Pandav Nagar Page 38 of 52 St. Vs. Ashish Kumar Sharma etc. rent and this witness has not been cross examined by the prosecution on the fact. The witness categorically said that Sh. S.P. Sharma had come and had given him his I card; he was not cross examined by prosecution on this fact. The prosecution did not cross examine the witness when he said that Dr. Sharma was living with the deceased and accused Ashish. Its a relevant fact that the complainant was being assisted by a private counsel throughout. It is thus admitted by the prosecution also that the deceased and the accused were sharing the rented accommodation with Dr. S. P. Sharma at Pandav Nagar.

The relevance of this fact of complainant living with the deceased is that if he was living with the deceased and the accused Ashish, there was lesser likelihood of accused having tortured her for dowry. This arrangement as per the case of prosecution was since 9th July 2006. It is not believable that the deceased, who had the constant support of her father, who was practically living with her, was tortured for dowry by her husband to the extent that she was compelled to commit suicide but her father remained there as mute spectator.

PW 14 in her cross examination has stated that accused Archna had a problem with her husband's (Dr. Sharma) visits at the house of the deceased.

44. The accused have taken a specific plea that Dr Sharma was living with deceased and accused Ashish and was causing interference in their married life, the extent of which was so much that the girl under the pressure committed suicide. In support the accused have relied upon various incidents showing interfering nature of the complainant viz trying to show the suicide as murder by making unsustainable FIR No. 509/06, PS. Pandav Nagar Page 39 of 52 St. Vs. Ashish Kumar Sharma etc. claims; not trusting the SDM at the time of recording of statement; having given handwritten statement yet raising finger on the SDM; interference during recording of evidence (during the case) and trying to thrust his views on the career choices of accused Ashish; living with the deceased and accused though he had his own accommodation in Delhi, to name a few. It was argued that the deceased in fact committed suicide because of interference of Dr. S. P. Sharma. This is the stand of all the accused persons in their statements recorded under section 313 Cr. P. C.

45. The witnesses of the prosecution have been inconsistent and have not corroborated each other. They have contradicted each other on many vital facts. PW­ 14 has admitted that the marriage of elder brother of accused Ashish was a dowry less marriage as per information given to her by her father. This admission gives strength to the statement of defence witness DW 1 Ram Asrey Sharma, who has deposed that her daughter Archna was married to Ram Saran Sharma in a dowry less marriage.

Sh. Sanjay Gupta Ld counsel argued that the witnesses produced by defence deserve equal treatment as the prosecution withesses. Mr P.L. Behl the counsel for the complainant on the other hand argued that the defence witness is in fact father of one of the accused Archna Sharma and so his testimony is not reliable. Defence has relied upon the judgment of Hon'ble Supreme Court in 2002[1] JCC 385 titled State of Harayan vs Ram Singh. The apex court in the said judgment held that the evidence tendered by the defence witnesses cannot be always termed as a FIR No. 509/06, PS. Pandav Nagar Page 40 of 52 St. Vs. Ashish Kumar Sharma etc. tainted one, and the defence witnesses are entitled to equal treatment and equal respect as that of the prosecution. It was held that issue of credibility and trustworthiness ought also be attributed to the defence witnesses at par with that of the prosecution. The Hon'ble Supreme Court in 2004(3)RCR (criminal) 774, Anil Sharma & others versus State of Jharkhand also held that equal treatment has to be given to the defence witnesses.

In the present case the DW1 has categorically mentioned that his daughter Archna was married with Ram Saran without dowry. PW 14 says that she was told this fact by her father PW13. PW13 also does not deny and merely pleads ignorance about the fact. The testimony of DW1 thus derives importance. The evidence of this witness is important since it is less probable that one family would marry one son in a dowry less marriage but shall torture the wife of the other son for dowry. The evidence is vocal about the conduct and the character of the accused persons. The prosecution has not claimed that there were extra ordinary circumstances in the marriage of elder brother warranting a dowry less marriage. The evidence thus goes in favour of the accused persons to conclude that it was improbable that they would have demanded dowry from the deceased or would have tortured her for the same.

46. Ld. counsel for the accused pointed out the lacunas in investigation Ld Defence counsel argued that the I.O. did not make any inquiry regarding the call details; the conversations and communications between the parties; he did not verify the contents of the SMS referred by the mother of deceased; did not obtain the print FIR No. 509/06, PS. Pandav Nagar Page 41 of 52 St. Vs. Ashish Kumar Sharma etc. out of the SMS; did not get it examined by any expert; did not inquire from the mother of deceased as to what transpired between her and her daughter. There are contradictory statements regarding the seized mobile also. The I.O says that it was handed over to him by saying that it was given by the complainants to the accused Ashish and was used by him. When in fact the witnesses have deposed that this phone was of Dr. Sharma and he had left it at the house. Why the mobile was seized remains unanswered.

47. Applicability of judgments cited by the parties:

The complainant has relied upon the judgment of Hon'ble Supreme Court in 2013 (3) Apex Courts Judgments 168 (SC) Pathan Hussain Basha Vs. State of A.P. Wherein the Honb'le Court has held that in the cases of dowry death and cruelty where ingredients of offence u/s. 304­B & 498­A IPC satisfied, onus shifts on accused to prove as to how deceased died. Mere denial and maintaining silence cannot be equated to discharge of onus by accused. In the facts of the present case the ingredients i.e. dowry demand itself has not been established. Further accused have not maintained silence but have taken specific pleas and have even brought on record the documents to prove their version. Further the law relating to rebutting of presumption of law is not that the accused should necessarily bring evidence on record. The accused can from the case of prosecution prove the circumstances, which may be considered as sufficient rebuttal of the presumptions. In the present case the accused have rebutted by both the ways i.e by pointing lacuna in the case of FIR No. 509/06, PS. Pandav Nagar Page 42 of 52 St. Vs. Ashish Kumar Sharma etc. prosecution and also raising probable defence and bringing Defence witness.

The Complainant relied upon the judgment of Hon'ble Supreme Court in AIR 2011 Sc 363, Sanjay Kumar Jain Vs State of Delhi Where in it was held that "in the case of dowry death where the deceased wife died within one year and two months of marriage and the father and mother of deceased categorically deposed that deceased was subjected to consistent cruelty and harassment by her husband/appellant in connection with demand for dowry , the expression that appellant continuously harassed and beat deceased in connection with demand of dowry clearly fell within the four corners of Section 304­B IPC."

The present case, however is distinguishable on facts as the manner and the evidence in the cited judgment was squarely covering the ingredients of demand of dowry.

The complainant has also relied upon the judgment of Hon'ble High Court in 2011 Cri. L.J 4527 titled Yashwant Kumar Vs. State, where it was held that testimony of mother of deceased, that after three and a half months of marriage, accused and his family members started harassing her daughter; that accused asked her daughter to bring money for purchase of car and prior to four days of death had threatened her that he would do something to her. Such testimony was supported by statement of brother of deceased. No explanation was offered by the accused in respect of head injury found on dead body which was caused to her immediately prior to her death. Thus, adverse inference was drawn against accused qua this circumstance. Further, demand of Rupees One Lakh Ten Thousand to purchase old FIR No. 509/06, PS. Pandav Nagar Page 43 of 52 St. Vs. Ashish Kumar Sharma etc. Maruti Car was certainly not due to any financial constraint as accused was well to do. The Honb'le Court held that presumption of causing dowry death could be drawn.

Hon'ble High Court in 2011 VI AD ( Delhi) 18 titled Vijay Pal Singh Vs. State of Delhi held that " Husband or relative of husband of woman subjecting her to cruelty. It was held that first ingredient of Section 304­B that death of MD occurred otherwise than under normal circumstances, established ; Second ingredient also stood established, as MD died within seven years of her marriage ad the prosecution showed that soon before her death, MD was subjected to cruelty and harassment by her husband in connection with demand for dowry.

The complainant in support of the prosecution case has relied upon the judgment of Hon'ble Supreme Court in 2011(1)Apex Court judgments 662 (SC), Bansi Lal Vs State of Haryana.

The facts of the case are distinguishable since in the cited judgment there were some undisputed facts viz the deceased stayed back with her family for 14 months. A panchayat was held where the accused (therein) gave undertaking that the deceased will not be harassed for demand of dowry. The death was concealed from the parents etc. The said case thus had an admitted element of dowry demand coupled with the conduct of the accused. The death occurred in the house of accused. The facts of the preset case are different since though claimed that the deceased was harassed for dowry; the prosecution has not been able to substantiate the harassment on account of dowry after the marriage. The cash etc given before or at the time of marriage have been shown as having been given on demand. There was admittedly FIR No. 509/06, PS. Pandav Nagar Page 44 of 52 St. Vs. Ashish Kumar Sharma etc. nothing given after the marriage to show that the deceased was harassed and so the demand was fulfilled. The deceased was for a long time with her parents and later her father was living with her yet both parents failed to give single instance of dowry demand when they gave their statement to the SDM. In the cited judgment the witnesses gave a consistent story regarding demand of a scooter. The version, of the witnesses of prosecution regarding the demands made, post marriage, however, are inconsistent and non specific.

In yet another judgment relied by the complainant titled Yashwant Kumar vs State, 2011 Cr. L.J 4527, the mother of the deceased had submitted in the first statement before the SDM that the money was demanded for purchase of car and then mentioned the amount in her statement given later. The Hon'ble Court held that it was hardly an improvement.

The complainant however is not saying anything specifically in the statement to the SDM in fact his statement suggests completely different reasons of dispute, which have been elaborated by him in his statement. The allegation of dowry have come in addition to all this and are not corroborated by independent witnesses; as has been done in the cases relied by the complainant.

Hon'ble Supreme Court in afore cited judgment has also held that where there are material improvements, the court should seek independent corroboration.

In 2012(2) Apex court Judgments 404 titled Rajesh Bhatnegar vs State of Uttarakhand and AIR 2011 SC 363 titled Sanjay Kumar Jain versus State of Delhi; (2004) 8 SCC 251 Arun Garg vs State of Punjab and another and 2013(3) FIR No. 509/06, PS. Pandav Nagar Page 45 of 52 St. Vs. Ashish Kumar Sharma etc. JCC 1594 Kulwant Singh and others vs State of Punjab the deaths were found by unexplained burning, mysterious circumstances and poisoning respectively giving strength to the presumption under section 113 B of Indian Evidence Act. There were categorical evidences of dowry demand; independent witnesses of dowry fulfillment subsequent to marriage etc. The cases do not have factual applicability in the present case. Ld counsel for complainant has also relied upon the judgment of Hon'ble Supreme Court in 2013 IX AD (SC)1 titled S. Govind Raju Vs State of Karnataka. The Hon'ble Supreme Court in the cited judgment held the witnesses though gave slightly varying statements; the contradictions were not material. Father, mother, brother & tenant (of father) of deceased were examined in the case and they spoke of demand of gold by accused in unison.

In the present case there are three witnesses, who have contradicted each other on all the aspects. Contradictions have been dealt with in detail hereinabove.

The Hon'ble Supreme Court in the cited judgment also took note of the fact that the defence took a false plea regarding character of deceased and the allegations made by them were proved incorrect by medical evidence. In the present case the plea of the defence that the interference by the complainant compelled the deceased to commit suicide has come up as a probable defence, which has found strength from the evidence of prosecution witnesses also.

48. Ld. Counsel for the accused persons has relied upon the following judgments:

FIR No. 509/06, PS. Pandav Nagar Page 46 of 52 St. Vs. Ashish Kumar Sharma etc. Hon'ble Supreme Court in 2013 CRI. L.J 2095 titled VipinJaiswal (A­

1) Vs. State of A.P. Where it was held that in case of dowry death, parents of deceased had made general allegations of harassment of deceased by accused husband. No specific act of cruelty was alleged. Defence of accused that deceased was alone in house at time of incident was accepted as probable"

Hon'ble Supreme Court in 2000 (4) Crimes 260 (SC) titled Tarun @ Gautam Mukherjeet Vs. State of West Bengal, held that " Evidence of PW­2 that accused used to assault deceased almost daily was confronted with her statement under Section 161 Cr.P.C. which did not mention it. Holding that material omission will discredit her version and the evidence of other two witness did not establish cruelty. The conviction was held unsustainable."

Hon'ble Supreme Court in 2010 (3) LRC 157 (SC) titled Durga Prasad & Anr. Vs. State of M.P. held that " that presumption under s. 113B of Evidence Act - cannot be raised where except for certain bald statements made by mother and brother of deceased alleging that victim had been subjected to cruelty and harassment prior to her death, there is no other evidence to prove that victim committed suicide on account of cruelty and harassment to which she was subjected just prior to her death. It was held that no charges were framed against appellants under provisions of Dowry Prohibition Act and evidence led in order to prove the same for purpose of s. 304­B of IPC was related to a demand for a fan only. Prosecution failed to fully satisfy the requirements of both s. 113­B of Evidence Act and s. 304­B of IPC. It was held that no case was made out on ground of insufficient evidence against appellants FIR No. 509/06, PS. Pandav Nagar Page 47 of 52 St. Vs. Ashish Kumar Sharma etc. for conviction under Sections 498­A and 304­B of IPC .

In AIR 2010 SC 3391 titled Amar Singh Vs. State of Rajasthan with State of Rajasthan Vs. Jagdish & Anr the hon'ble Supreme Court held that "

Essential ingredient of a dowry death case is cruelty or harassment for or in connection with dowry. It was held that mere demand of dowry is not offence made under Ss. 304­B, 498­A. Husband along with his mother and other in­laws charged for dowry death and cruelty. Exact manner adopted by mother and in­law for harassing deceased was not proved. It was held that mere use of words ' tortured' ' harassed' by witness was not sufficient to hold Mother in­law and other in­laws guilty of offence."

Ld Counsel for accused has relied upon the judgment of Hon'ble Supreme Court in 2009 (3) RCR (Criminal) 418 Nepal Singh Vs. State of Haryana wherein it was held as under :

" He stated that at the time of settlement of marriage and even thereafter no demand of dowry was made; demand of dowry not proved; trial court rightly acquitted the accused . High Court, however, set aside the order of acquittal on the ground that something must have happened and otherwise deceased would not have committed suicide. This ground is indefensible and could not have been a reason to set judgment of acquittal."

Thus arguing that even if it is not proved as to what compelled the deceased to commit suicide the presumption u/s 113 B cannot be raised on simpliciter ground that something must have happened, which compelled her to do so. The father of the FIR No. 509/06, PS. Pandav Nagar Page 48 of 52 St. Vs. Ashish Kumar Sharma etc. deceased in the instant case says exactly the same. He says that accused must have said something to the deceased while she was at Hathras and so she committed suicide. The Hon'ble Supreme Court in afore cited judgment categorically held that this kind of a plea is not acceptable to rais presumption under section 113 B of the Evidence Act.

Ld. Counsel for accused relied upon Hon'ble Supreme Court in AIR 2012 SC 3157 titled Hari Singh Vs. State (NCT) of Delhi to argue that PW8 & 14 have changed there version several times during cross examination to suit their claim and in the process have made the statements against the prosecution case also. The Court in Hari Singh (supra) had held that " the witness should be in a position to withstand the cross­ examination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it".

The above cited judgments clearly support the facts of the present case and the case of prosecutions falls weak due to contradictions, vague allegations, conduct of accused, conduct of complainant, unjustifiable improvements etc.

49. The ingredients of Section 304­B IPC - In order to hold an accused guilty of an offence under s. 304­B, apart from fact that woman died on account of burn or bodily injury, otherwise than under normal circumstances, within 7 years of her marriage, it has also to be shown that soon before her death, she was subjected to cruelty or harassment by her husband or any relative or her husband for, or in FIR No. 509/06, PS. Pandav Nagar Page 49 of 52 St. Vs. Ashish Kumar Sharma etc. connection with, any demand for dowry - Only then would such death be called "

dowry death" and such husband or relative shall be deemed to have caused the death of woman concerned.

In the present case though the first two ingredients were admitted the third the main ingredient i.e. of dowry demand soon before the death could not be established. The prosecution failed to prove by leading believable evidence that there was any demand of dowry or any harassment caused due to unfulfilled demand of dowry.

50. The case of prosecution fails under sections 498A and 304­B IPC.

51. Alternate charge:

The Hon'ble Supreme Court in 2009 Matrimonial Law Reporter 141 titled Kishangiri Mangalgiri Goswami versus State of Gujrat observed that:

"Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing......' "IN cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitements to the commission of suicide. The mere fact that husband treated the wife with cruelty s not enough."

IN 2007(3) RCR (Criminal)385 Kishori Lal vs State of MP, the Hon'ble Supreme Court held that there must be proof of direct or indirect acts of incitement to the commission of suicide.

FIR No. 509/06, PS. Pandav Nagar Page 50 of 52 St. Vs. Ashish Kumar Sharma etc. In the present case the prosecution witnesses have been consistent that it was dowry, which was the main cause of harassment of the deceased and have not been able to establish the case. The case was not argued by the prosecution from the angle of abetment to commit suicide at all. Yet the findings are to be given as the charge was framed under the section in alternate. The prosecution witnesses have stated in their evidence that the deceased was tortured by her in laws. They claim that the harassment was because the deceased wanted to live with her husband at Delhi but the in laws did not want them to live in Delhi and wanted them back at Hathras. This can at best be called as an initial hiccup in marriage while attempting to adjust. Accused Ashish had brought the girl to Delhi and if complainant is to be believed everyone except accused Ashish was upset with this arrangement. Ashish thus was with his wife and had brought her to Delhi where she wanted to live. In Delhi she had the support of her father, who was with her most of the time. It is being alleged that there was some communication between accused Richa and Ashish (Husband and Mother in law) which was over heard by the deceased. No one has said anything on what this communication was. In fact PW 14 the mother of deceased claims that she had talked with accused Archna for half an hour and it was she who told her about this fact; yet the witness except for one sentence doe snot say anything about what was her communication with Archna during half an hour. This witness has admitted that she talked with her daughter in the morning of 3/10/2006 but does not tell what the two had talked about anywhere in her evidence or statements given to the I.O. The conduct of both the parents is a little suspicious since one forgets to tell the most FIR No. 509/06, PS. Pandav Nagar Page 51 of 52 St. Vs. Ashish Kumar Sharma etc. important communication between him and deceased in the first statement given by him to SDM; the other does not speak about her telephonic talk with the deceased on the morning of the incident at all.

52. The prosecution fails to prove that there was any instigation, which can be considered as a reasonable ground with the deceased for having committed suicide. Accused persons are accordingly acquitted of the offences with which they were charged. File be consigned to record room.

Announced in the open court on 17.09.13 (ANURADHA SHUKLA BHARDWAJ) ASJ­03, (EAST) KKD COURTS, DELHI/17.09.13 FIR No. 509/06, PS. Pandav Nagar Page 52 of 52 St. Vs. Ashish Kumar Sharma etc.