Delhi District Court
State vs . Akash Sharma Fir 355/14 (57369/2016) on 14 January, 2019
State Vs. Akash Sharma FIR 355/14 (57369/2016)
IN THE COURT OF MANISH YADUVANSHI
ADDITIONAL SESSIONS JUDGE 05: WEST : DELHI.
IN THE MATTER OF
Case No. 57369/16
FIR No. 355/14
PS Mundka
U/s 498A/304B IPC
STATE
VERSUS
AKASH SHARMA @ NIKHIL
S/O SH.RAM AVTAR SHARMA
R/O A125, FRIENDS ENCLAVE,
MUNDKA,
DELHI.
Date of Institution : 23.03.2015
Date of Reserving Judgment : 09.01.2019
Date of Judgment : 14.01.2019
JUDGMENT
1. The accused Akash Sharma has been facing trial for the offences Punishable U/s 498A/304B IPC.
Result: Acquitted Page 1 of 55State Vs. Akash Sharma FIR 355/14 (57369/2016) FACTS :
2. Facts leading to the Prosecution's case are as under :
2.1. On 25.07.2014, an information was received vide DD no.20A at PS Mundka regarding suicide of wife of brother of Caller at A25, Friends Enclave, which was assigned to ASI Avdesh Kumar.
He alongwith Ct.Devender reached the spot where they found the deadbody of female namely Smt.Priyanka W/o Akash Sharma lying on the bed. Husband of deceased informed that after cutting the Chunni, he put down the body of Smt.Priyanka on the bed. During inquiry, it was revealed that the deceased was married one year ago. SDM, Punjabi Bagh was informed and on his behalf, the Tehsildar reached the spot and directed to preserve the deadbody of Priyanka in the Mortuary of SGM Hospital, Mangol Puri, Delhi. Parents of deceased were informed telephonically about the incident.
On 26.07.2014, statement of Smt.Meena Sharma W/o late Sh.Harish Chander Gupta was recorded by the Tehsildar/Executive Magistrate, Punjabi Bagh, New Delhi wherein she stated that she is mother of the deceased. After receiving information from PS Mundka on 25.07.2014, she alongwith her Son and brother in law Result: Acquitted Page 2 of 55 State Vs. Akash Sharma FIR 355/14 (57369/2016) came to Delhi. The deceased got married with accused Akash Sharma on 17.11.2013 and it was lovemarriage. In April, 2014, her daughter Priyanka informed her telephonically that her husband had beaten her and she sustained injuries. She could not even talk. She requested that they should take her back. She came on the same day and took her daughter Priyanka to her Parental house. Deceased informed her that her husband used to beat her and used to demand Rs.5 lacs repeatedly.
After one week, Soninlaw Akash, brotherinlaw (Devar) Aman, motherinlaw and cousininlaw of deceased came at the parental house of deceased to take her back with promise not to repeat the same in future. They took the deceased to her Inlaws house without her consent. Thereafter, she could not talk with her daughter and whenever she contacted her on phone, the same was found 'Switched off'. She raised suspicion that her Soninlaw Akash, fatherinlaw Ram Avtar, motherinlaw and brotherinlaw Aman had killed her daughter as her daughter could not have committed suicide. Case was registered U/s 498A/304B IPC and investigation was conducted.
3. During investigation, Insp.Sanwar Mal had collected all the Result: Acquitted Page 3 of 55 State Vs. Akash Sharma FIR 355/14 (57369/2016) documents, Crime team Inspection Report, Seizure memo of Chunni and memo regarding handingover the deadbody. At the instance of ASI Avdesh Kumar, Site Plan was prepared. Statements of witnesses were recorded. Accused Akash Sharma was arrested who produced the Marriage Certificate qua his marriage with the deceased. P.M.Report of deceased was collected wherein cause of death was opined as "Due to asphyxia as result of hanging. All injuries are antemortem in nature".
On 30.07.2014, statements of Smt.Meena Gupta, her Son Ashish Gupta and her relative Rakesh Gupta were recorded U/s 161 Cr.P.C. On 20.04.2014 and 22.04.2014, documents were produced by the relatives of deceased regarding her treatment in Jag Parvesh Chander Hospital, Delhi and the same were verified from the said hospital. Fatherinlaw, motherinlaw and brotherinlaw namely Ram Avtar Sharma @ Avtar Sharma, Smt.Kamlesh and Aman Sharma of the deceased were kept in Column no.12 of the Charge sheet. On completion of investigation, Chargesheet for the offences U/s 498A/304B IPC was filed.
CHARGE :
Result: Acquitted Page 4 of 55State Vs. Akash Sharma FIR 355/14 (57369/2016)
4. Thereafter, the case was committed to the Court of Sessions. On 24.07.2015, Charge for the offences Punishable U/s 498A/304B IPC was framed against accused Akash Sharma to which he pleaded not guilty and claim trial.
EVIDENCE :
5. To prove its case, the prosecution, in total, has examined 21 witnesses.
6. Admission/denial U/s 294 Cr.P.C. was conducted wherein accused admitted copy of Report of Dr.R.G.Sharma dt. 17.09.2014 as Ex.PX1, Copy of Treatment record dt. 22.04.2014 by Dr.A.K.Saxena as Ex.PX2 and P.M.Report no.700/14 dt. 26.07.2014 prepared by Dr.Manoj Dhingra as Ex.PX3. In view of abovesaid admission, ld.Prosecutor dropped witnesses no.20, 21 and 25 on 16.03.2017.
On the same day, ld.Prosecutor also dropped witness no.17/Record Keeper to produce the PCR form as the fact to be proved by the witness was not disputed on behalf of the accused.
On 29.11.2017, ld.Prosecutor also dropped witness no.6/Smt.Savitri Devi as the fact to be proved by her was already proved by PW3 and PW15. She also dropped witnesses namely Result: Acquitted Page 5 of 55 State Vs. Akash Sharma FIR 355/14 (57369/2016) Kanta Devi, Manoj Kumar, Hans Raj and Smt.Anju Kapoor cited at Srl.Nos. 2 to 5 in Supplementary Charge sheet as the fact to be proved by these witnesses was already deposed by PW15. She also dropped witness namely Dr.Manoj Dhingra cited at Srl.No.6 in the Supplementary Chargesheet regarding subsequent opinion expressed by him in the light of admission made by accused regarding P.M report Ex.PX3.
7. PW1 Smt.Meena Gupta, mother of the deceased deposed that Priyanka was her daughter. She was married with Akash @ Nikhil in the year 2013. She got information of her marriage with Akash on 17th date of English Calender month of 2013. She was not sure but probably it was month of December. She was not aware about the residence of Akash. In the month of January, 2014, she received phone call of her daughter Priyanka that she was being beaten by her husband and requested her to take her back from the house of her husband. She asked her address and then the deceased informed her address as Friends Colony, Mundka, Delhi. After receiving phone call, the witness alongwith her son Ashish Gupta and brotherinlaw Rakesh Gupta proceeded for Delhi where the deceased met them. The Result: Acquitted Page 6 of 55 State Vs. Akash Sharma FIR 355/14 (57369/2016) witness noticed injury marks all over the body of Priyanka and there were bluish mark of injury around her eyes. At that time, accused was not present in the house. The deceased informed her mother that she was beaten with Shoes by Akash. She further informed that accused Akash used to consume liquor and used to beat her on petty matters under the influence of liquor. She took the deceased to her house and got her treated at Shastri hospital. The witness asked the deceased that she had married Akash on her own sweet will then why he was assaulting her. Deceased told her that Akash was demanding Rs.5 lacs for purchasing a house as he was residing on rent. Priyanka remained at her house for about one week and thereafter accused Akash, his younger brother Aman @ Keshav, motherinlaw of deceased and one person i.e. cousin brotherinlaw of deceased come to her house and requested her to send Priyanka with them. She refused. Then, all the persons begged for pardon and assured that they will not commit the same thing again. Thereafter, they took Priyanka at her matrimonial house without the consent of this witness. At that time, she had given Rs.15,000/, one Mobile Phone Set, clothes to Priyanka. She had also taken her belongings which were lying in her house. Thereafter, she tried to contact Priyanka Result: Acquitted Page 7 of 55 State Vs. Akash Sharma FIR 355/14 (57369/2016) telephonically several times but her phone was found "switched off".
On 25.07.2014, she received a phone call from PS Mundka and informed that Priyanka had committed suicide. She alongwith her other family members reached PS Mundka from where she was taken to Mortuary where she saw deadbody of Priyanka. This witness proved her statement Ex.PW1/A. She also proved her statement Ex.PW1/C regarding identification of deadbody.
8. PW2 Sh.Rakesh Gupta, Uncle of deceased deposed that Priyanka was daughter of Smt.Meena Gupta who is his real Bhabhi. Priyanka married with Akash which was a lovemarriage. Meena Gupta informed him about the beatings given to her by her husband. Thereafter, he alongwith Meena Gupta and son of Meena namely Ashish Gupta had gone to Mundka i.e. Inlaws house of deceased where he noticed that Priyanka was having injuries on her person. The deceased was brought back and got her medically examined first at Shastri Park Hospital, Delhi and thereafter she was taken to Barailly. Priyanka had complained that a demand of Rs.5 lacs was being made by her husband. Meena informed that Priyanka was taken by her Inlaws forcibly after about 57 days. She tried to contact Result: Acquitted Page 8 of 55 State Vs. Akash Sharma FIR 355/14 (57369/2016) Priyanka telephonically but her phone was found switched off.
On 25.07.2014, he came to know that Priyanka committed suicide at her matrimonial home. He alongwith other family members of Meena Gupta had gone to PS Mundka from where they were taken to Mortuary where deadbody of Priyanka was found lying.
9. PW3 Pandit Veerpal Shastri performed the marriage of deceased with the accused on 17.12.2013. He proved the Marriage Certificate regarding marriage of deceased with accused as Ex.PW 3/A. He admitted that marriage between Akash Sharma and Priyanka was with their free consent.
10. PW4 Atul Mahawar deposed that deceased was her sisterinlaw (Saali). About two years ago, he alongwith his motherinlaw Meena Gupta had gone to matrimonial house of deceased when deceased had given beatings mercilessly by the accused. Deceased was also having an injury mark on her right eye and she was also unable to move. They took Priyanka and got her treated in govt.hospital. This witness identified his signature at Point A on document dt.22.04.2014 Ex.PW4/A. On asking a leading question by the Ld.Prosecutor, this witness admitted that deceased took medical treatment from Jag Result: Acquitted Page 9 of 55 State Vs. Akash Sharma FIR 355/14 (57369/2016) Pravesh Chand hospital situated at Shastri Park, Delhi.
11. PW5 Ankit Kwatra from Jag Pravesh Chand Hospital, Delhi produced the summoned record i.e. Dispatch Register letter bearing no. F.No.6(1)/H&FW/JPCH/2014/10861 dt. 20.10.2014 addressed to Investing Officer PS Mundka which was issued by the then MRO Diwan Dass Nirmal. This witness proved the copy of entry at Srl.No. 10861 in dispatch Register as Ex.PW5/A. He also identified the signatures of Sh.Diwan Dass Nirmal at Point A on the letter dt. 20.10.2014 which was dispatched vide Ex.PW5/A and the said letter was proved as Ex.PW5/B. He also brought record pertaining to emergency registration no. JPC39208. It bears Doctor entry register no. 32004 mentioned at red encircled portion X on copy of Emergency Slip Mark PW5/C. He proved the copy of entry to this effect as Ex.PW5/D. He also brought treatment register maintained in Casualty Ward which indicates treatment given to Patient Priya vide Emergency Registration Card No.32004 having emergency registration no. JPC39208. He proved the relevant extract of treatment register as Ex.PW5/E. Result: Acquitted Page 10 of 55 State Vs. Akash Sharma FIR 355/14 (57369/2016)
12.PW6 Ashish Gupta, brother of the deceased deposed on the same facts as deposed by his mother PW1 Smt.Meena Gupta. He also proved his statement regarding identification of deadbody of Priyanka as Ex.PW6/A.
13. PW7 Shri Ram, owner of H.No. A125, Friends Enclave, Mundka, Delhi. He deposed that in the year 2011, he had rented a portion of this house to Sh.Ram Avtar Sharma, father of accused and another portion of the house was later rented to the accused after his marriage in the year 2013 or 2014. No Written Rent Agreement was entered into between him and the accused. Accused used to deposit the rent @ Rs.2,000/ per month in the bank account of his son namely Jasvinder.
14. PW8 W/ASI Sudesh (Duty Officer) proved the copy of DD no.20A as Ex.PW8/A and print out of FIR as Ex.PW8/B, her endorsement on the rukka as Ex.PW8/C, Certificate U/s 65B of the Indian Evidence Act as Ex.PW8/D and copy of DD no.34A as Ex.PW8/E.
15. PW9 Saurabh Sharma brother of accused Akash Sharma deposed that on 25.07.2014 while travelling in a bus, he received telephone Result: Acquitted Page 11 of 55 State Vs. Akash Sharma FIR 355/14 (57369/2016) call of his wife that Priyanka had committed suicide. He immediately made a PCR Call and reached his house where he saw that his brother Akash Sharma was present there and deadbody of Priyanka was already removed from the Ceiling fan after cutting the Dupatta and was kept on bed.
16. PW10 SI Kalyan Singh, Incharge Mobile Crime team, proved the Crime Scene Report as Ex.PW10/A which was prepared by him on 25.07.2014 at A125, Friends Enclave, Mundka after receiving information from District Control room. He deposed that no Chance Prints or Suicide Note could be found at the spot.
17. PW11/Ct.Sunil, Photographer, Mobile Crime team, proved the Photographs of the spot as Ex.PW11/P.1 to Ex.PW11/P.7 and Negatives as Ex.PW11/N.
18. PW12 HC Naresh, MHC (M) proved the copy of entry at Srl.No. 608 in Register no.19 vide which ASI Avdesh Kumar deposited one sealed Pullanda bearing seal of AKS in reference of FIR no.355/14 and DD no.20A as Ex.PW12/A.
19. PW13 Ct.Devender joined the investigation of this case with ASI Avdesh Kumar and reached the spot where they found the deadbody Result: Acquitted Page 12 of 55 State Vs. Akash Sharma FIR 355/14 (57369/2016) of deceased lady on bed. One piece of Chunni was found hanging with the Ceiling fan and another piece of Chunni was near the deadbody. Both the pieces of Chunni were kept in seal of AKS and seized vide memo Ex.PW13/A.
20. PW14 Sh.J.C.Sehgal deposed that on 25.07.2014, he was posted as Tehsildar, Punjabi Bagh and on the directions of the then SDM, he had visited in the house of deceased in Mundka and conducted the Inquest Proceedings there. He had recorded statement of husband of deceased.
This witness was crossexamined by the Ld.Prosecutor wherein he admitted that he had visited H.No. A125, Friends Enclave, Mundka on 25.07.2014. He admitted that he had seen the deadbody of Priyanka was lying on bed and was having gallow of Chunni around her neck. This witness has proved the statement of Smt.Meena Gupta which was recorded by him as Ex.PW1/A, his Report as Ex.PW14/A and request for Postmortem examination as Ex.PW14/B.
21. PW15 Kaushal Sharma @ Aman Sharma, brother of accused Akash Sharma deposed that his brother was married to Priyanka and Result: Acquitted Page 13 of 55 State Vs. Akash Sharma FIR 355/14 (57369/2016) he had attended their marriage. It was solemnized in a temple near Tis Hazari Court. No one from the bride side had attended the marriage. He had identified his signatures at Point K on the Marriage Certificate Ex.PW3/A. Priyanka had committed suicide within 56 months from her marriage.
22. PW16 Smt.Rinku, sister in law of accused (Bhabhi) deposed that Akash was married to Priyanka on 17th December. After marriage, Akash and Priyanka resided in their premises but in a separate portion. On 25th July, she was in the home and at about 12 noon, she received a phone call from her Devar Akash who told that Priyanka was not responding to his Phone calls and requested her to check about her presence. She went towards her room but the room was closed. She tried to open the door by pushing it and found that Priyanka was hanging from Ceiling fan with the help of Chunni. She informed Akash who returned after some time and she alongwith Akash demounted the body of Priyanka from Ceiling fan. They cut the Dupatta to put the body of Priyanka down on the bed. This witness identified the pieces of Chunni as Ex.PW16/1. She also identified the photographs of place of incident Ex.P.1 to Ex.P.7.
Result: Acquitted Page 14 of 55State Vs. Akash Sharma FIR 355/14 (57369/2016)
23. PW17 Israr Babu, Alternate Nodal Officer, Vodafone produced the summoned record pertaining to Mobile Phone Number 9690606148 which was subscribed by one Ganesh Babu and was activated on 04.07.2012. He proved the Certified copy of Customer Application Form (CAF) as Ex.PW17/A, Copy of Election Card of the subscriber as Mark PW17/B and copy of Mobile number portability Form as Mark PW17/C. He also proved the CDR of the abovesaid Mobile number as Ex.PW17/D and Certificate U/s 65B of the Indian Evidence Act as Ex.PW17/E.
24. PW18 Ct.Suman Lata proved the Certified handwritten copy of DD no.50B dt. 25.07.2014 as Ex.PW18/A. The same is in the handwriting of ASI Avdesh Kumar.
25. PW19 Pawan Singh, Nodal Officer, Idea Cellular Ltd. produced the summoned record i.e. CDR in respect of Mobile Phone Number 9210644599 for the period from 24.07.2014 to 26.07.2014 and the same is proved as Ex.PW19/A. He also proved the Certificate U/s 65B of the Indian Evidence Act as Ex.PW19/B. The abovesaid Phone number was initially ported from TATA Company vide Porting request dt. 02.12.2011 and this witness proved the copy of Result: Acquitted Page 15 of 55 State Vs. Akash Sharma FIR 355/14 (57369/2016) number porting Request Form as Mark PW19/C. This number was subscribed by one Ram Avtar S/o Sh.Ram Asra Lal. He also proved copy of CAF as Mark PW19/D. The original CAF has been destroyed in a Fire incident which took place in their office on 22.09.2017 and intimation to this effect was submitted to SHO PS Thana PhaseIII, Noida. Copy of the same is proved by this witness as Mark PW19/E. He also proved the copy of Election I Card of Ram Avtar and CAF as Mark PW19/F. He has also produced CDR of Phone numbers 9718707905 and 9718284441 for the period from 24.07.2014 to 26.07.2014 and proved as Ex.PW19/G and Ex.PW19/G.1. He also proved the Certificate U/s 65B of the Indian Evidence Act as Ex.PW19/H. The Mobile Phone number 9718707905 was subscribed by Sh.Kaushal Sharma vide his application dt. 15.01.2014 and the witness proved the copy of CAF as Ex.PW19/J and copy of Adhar Card of the subscriber as Mark PW19/K. The Mobile Phone number 9718284441 was subscribed by Sh.Kaushal Sharma vide his application dt. 18.04.2014 and the witness proved the copy of CAF as Mark PW19/L. The original Result: Acquitted Page 16 of 55 State Vs. Akash Sharma FIR 355/14 (57369/2016) CAF has been destroyed in a Fire incident which took place in their office on 22.09.2017.
26. PW20 Insp.Sanwar Mal, 2nd Investigating Officer of this case deposed about all the investigation conducted by him and proved his endorsement Ex.PW20/A vide which he had directed the duty officer to register a case U/s 498A/304B IPC. He proved the copy of DD no.20A Ex.PW8/A, DD no.50B Ex.PW18/A, Crime Team Report Ex.PW10/A, copy of receipt of deadbody Ex.PW1/C, Site Plan Ex.PW20/B which was prepared at the instance of ASI Avdesh Kumar. He also proved the Arrest Memo, Personal Search Memo and Disclosure statement of accused Akash Sharma Ex.PW20/C, Ex.PW20/D and Mark PW20/E respectively.
He also proved the Marriage Certificate Ex.PW3/A and its Seizure memo Ex.PW20/F, P.M.Report Ex.PX.3, documents pertaining to the treatment of deceased Priyanka pertaining to R.G.Hospital, Bareily and Jag Pravesh Chander Hospital, Shastri Park Ex.PW5/B and Ex.PX.1. He made request for obtaining subsequent opinion Ex.PW20/G and endorsement by the concerned doctor Ex.PW20/H. Result: Acquitted Page 17 of 55 State Vs. Akash Sharma FIR 355/14 (57369/2016)
27. PW21 ASI Avdhesh Kumar, 1 st IO of this case also deposed about the investigation conducted by him. He proved the copy of DD no.20A Ex.PW8/A, Seizure memo of Chunni Ex.PW13/A after sealing the same. He proved the statement of Smt.Meena Gupta, mother of the deceased Ex.PW1/A, letter Ex.PW14/A handedover to him by the SDM while directing for submitting it alongwith statement of Smt.Meena Gupta for getting the FIR registered. He also proved the Site Plan Ex.PW20/B, Arrest Memo, Personal Search Memo and Disclosure statement of accused Ex.PW20/C, Ex.PW20/D and Mark PW20/E respectively. He also proved the Marriage Certificate Ex.PW3/A qua marriage of deceased with accused Akash Sharma and its seizure memo Ex.PW20/F. This witness was crossexamined by the Ld.Prosecutor wherein he admitted that when he reached the spot, a piece of Chunni was lying on the floor while the other End of it was tied with the Ceiling fan. He admitted that accused Akash disclosed him that it was he who had cut the Chunni into pieces to bring the body down. He also admitted that Inquest Proceedings were not conducted by the SDM concerned but on his behalf by Tehsildar namely Sh.J.C.Sehgal.
Result: Acquitted Page 18 of 55State Vs. Akash Sharma FIR 355/14 (57369/2016) This witness identified the pieces of Chunni as Ex.PW16/1.
28. All the incriminating circumstances were put to the accused in his statement U/s 313 Cr.P.C. wherein he denied all the allegations against him. He admits his marriage with the deceased Priyanka on 17.12.2013 at Arya Aamaj Mandir, Gokhle Market, New Delhi. He denied that he had consumed liquor throughout his life. He alongwith Aman @ Keshav went to bring his wife as she had called him to take her back as her parents were misbehaving with her. When the deceased had committed suicide, he was present at his work place at Hilton Hotel, Janak Puri, Delhi. It is a false case lodged against him for the reason that he solemnized the marriage with Priyanka against the wishes of her Parents. Further, mother of deceased did not like their marriage solemnized against her Will and wishes and it was an intercaste marriage. All the witnesses are said to be interested witnesses and since their marriage was against their Will and wishes, they deposed falsely against him. He had never committed any Cruelty against the deceased nor had ever demanded any dowry from the deceased or her parents. Their marriage was a love marriage so there was no question to cause any Cruelty against the demand of dowry. They were living happily since their marriage and there was Result: Acquitted Page 19 of 55 State Vs. Akash Sharma FIR 355/14 (57369/2016) no dispute between them. Accused did not produce any witness in his defence.
29. I have heard Ms.Nimmi Sisodia, Ld.Addl.P.P.for the State and Sh.Anshuman Sinha, ld. Counsel for accused Akash Sharma and perused the record carefully.
ARGUMENTS OF LD.PROSECUTOR :
30. The Ld.Prosecutor for the State has submitted that the Prosecution has proved that deceased Priyanka was married to the accused on 17.11.2013 and she died an unnatural death within Seven years of marriage on 25.07.2014.
31. It is further contended that the Prosecution has also proved beyond all reasonable doubts that accused had subjected the deceased Smt.Priyanka to Cruelty within the meaning of Section 498A IPC at the matrimonial house between 17.11.2013 to 25.07.2014 for the purpose of dowry. It is also submitted that Smt.Meena Gupta (PW1), the mother of the deceased has deposed in support of the Prosecution's case. She has also deposed that she herself had given Rs.15,000/, one Mobile Phone Set and Clothes to Priyanka at the time of visit of her husband/accused alongwith other persons at her Result: Acquitted Page 20 of 55 State Vs. Akash Sharma FIR 355/14 (57369/2016) house. It is submitted that PW1 has also deposed categorically that she had received a Phone Call from her daughter in April, 2014 wherein she clearly informed PW1 of being beatings by her husband and that she also requested for her to be taken away from the house of her husband at Friends Colony, Mundka, Delhi . It is also submitted that there is no reason for this Court to disbelieve the Sworn testimony of PW1 that on the day following this Phone Call, PW1 alongwith her Son Ashish Gupta (PW6) and brotherinlaw Rakesh Gupta (PW2) had visited the matrimonial house of the deceased where they met her. PW1 had observed injury marks all over the body of Priyanka including a Bluish injury mark around her Eyes . In her presence, the deceased complained to her that accused assaulted her with Shoes; that he used to consume liquor and also used to beat her on Petty matters under influence of alcohol. It is submitted that such grave was the plight of the deceased that she was taken back by her mother to their relative's house in Delhi where treatment was given to her at Jag Pravesh Chandra Hospital, Delhi.
32. Attention of the Court is drawn to the fact that as per PW1, the deceased herself told her that accused was demanding Rs.5 lacs for Result: Acquitted Page 21 of 55 State Vs. Akash Sharma FIR 355/14 (57369/2016) purchasing the house. It is submitted that though cause of injuries was not reported to the concerned doctor but there is a valid explanation provided by PW1 that she wanted to save matrimonial house of her daughter.
33. The Prosecutor has also submitted that Rakesh Gupta (PW2) has supported PW1. He has supported the version of PW1 regarding demand of Rs.5 lacs made by the husband of the deceased.
34. The marriage of the deceased with accused was solemnized on 17.11.2013 and this fact is stated to be proved through Pradhan of Arya Smaj Vaidik Mandir, Gokhle Market, Delhi being PW3.
35. The Prosecution points out that the brotherinlaw of deceased i.e. PW4/Sh. Atul Mahawar also testified that deceased stated in his presence that she was being mercilessly beaten by the accused. He also observed injury mark under right eye and deposed that she was unable to move. He has also supported the fact that Victim was taken back to her Parental house and treated for her injuries.
36. The Ld.Prosecutor has further drawn attention of this Court to the testimony of brother of deceased namely Ashish Gupta (PW6) who supports PW1 stating that in April, 2014, deceased made a telephonic Result: Acquitted Page 22 of 55 State Vs. Akash Sharma FIR 355/14 (57369/2016) call to PW1 complaining that her husband had given her beatings on the issue of money that he was demanding Rs.5 lacs from his Sister and pressurizing her to bring money from her Parents. This witness, according to the Prosecution, supports that he had seen that the deceased had suffered injuries and was having Bluish marks of injury near her Eyes, Face as well as Arms.
37. It is also pointed that PW7/Shri Ram duly proves that he had rented Portion of his H.No. A125, Friends Enclave, Mundka, Delhi to the father of the accused in the year 2011. Further after marriage of the accused, he let out another Portion to the accused in the year 2013 or 2014 for Rs.2,000/ Per Month.
38. Testimony of another public witness i.e. PW16/Smt.Rinku is also referred to by the Prosecution. This witness has proven that Priyanka committed suicide after Six months of her marriage with the accused who is real brother of the husband of this witness. The accused, being her Devar, made a Phone Call to her on the date of incident to check on the deceased as she was not responding to his Phone Calls whereupon she found Priyanka hanging with Ceiling Fan with the help of 'Chunni'. This witness alongwith accused had demounted the Result: Acquitted Page 23 of 55 State Vs. Akash Sharma FIR 355/14 (57369/2016) deadbody from the Ceiling Fan. She identified the 'Chunni' Pieces as Ex.PW16/1 being the same which was used to tie the Noose. The witness also identified the Photographs Ex.P.1 to Ex.P.7 stating that they project the images after demounting the deadbody and thus proved the same to be of H.No. A125, Friends Enclave, Mundka, Delhi.
39. It is further submitted that the witnesses to the investigation of this case have been consistent in their testimonies. It is contended that the defence is improbable.
ARGUMENTS OF LD.DEFENCE COUNSEL :
40. On the contrary, Sh.Anshuman Sinha, ld.defence counsel for the accused Akash Sharma submits that Prosecution's case is full of lacunae and none of the witness of the Prosecution has categorically linked the alleged demands of money/articles as a 'dowry demand'. It is contended that the accused was at his work place at the time of alleged incident and his Sisterinlaw is the first person who found the deadbody. According to the defence, the Prosecution is required to prove that there was any demand for or in connection with the dowry. It is submitted that the mother of the deceased has only interacted with the deceased twice throughout her marriage. It is submitted that Result: Acquitted Page 24 of 55 State Vs. Akash Sharma FIR 355/14 (57369/2016) her testimony would reveal that she interacted with her once when she came to take her back with her to the matrimonial house and the second time at the Parental house at Bareily. It is pointed out that prior to these dates, PW1 made no contact with the deceased and in contrast to it, Son of PW1 i.e. PW6/Ashish Gupta has stated in his Court testimony that PW1 was in constant contact with the deceased which is improbable giving rise to a genuine doubt on the testimony of the related witness who are stated to be interested witnesses.
41. It is further submitted that testimony of PW1 would also reveal that her daughter resisted to go back from Bareily however, PW 6/Ashish Gupta has stated that his Sister wanted to go back to Delhi and also stated that she should not be called telephonically and hence, the mother did not call her till death.
42. The defence has pointed out to document Ex.PW5/C dt.
20.04.2014 submitting that documents of the hospital are in respect of one 'Priya' and not 'Priyanka'. It is further submitted that this document was prepared at 19:30 hours on the said date. It is pointed out that Ex.PW4/A is dt. 22.04.2014 prepared at RG Hospital situated in Bareily. It is further pointed out that as per it, the Patient Result: Acquitted Page 25 of 55 State Vs. Akash Sharma FIR 355/14 (57369/2016) had slipped from Stairs on 16.04.2014 and sustained injuries including the back injury. The Court is prompted to note that the document is prepared by an Orthopedic doctor.
43. The defence has also submitted that undoubtedly the marriage between the Parties is a LoveMarriage that was ssolemnized on 17.11.2013. It is pointed out that both the husband and wife were from different Casts and it is argued that they married against the wishes of their family members and therefore the relatives of the deceased naturally had a grudge due to this step taken by their daughter. It is prayed that accused be acquitted for the offences complained of.
REUBUTTAL ARGUMENTS BY THE LD.ADDL.P.P.
44. The Ld.Prosecutor's focus of rebuttal arguments was primarily on citing Judgments to contradict defence (which I shall be referring here under).
45. The Ld.Prosecutor also submitted that not only the arguments by the defence are unworthy of consideration, the case being proved on all counts, but also that the evidence produced in support of the instances of Cruelty within the meaning of Section 498A IPC is sufficient to also convict this accused for having abetted the Result: Acquitted Page 26 of 55 State Vs. Akash Sharma FIR 355/14 (57369/2016) Commission of Suicide by Priyanka and therefore, liable to be convicted also for commission of offence Punishable U/s 306 IPC.
The Ld.Prosecutor, on this issue, further urged that this accused can, on the same facts and evidence, be also convicted U/s 306 of the IPC as besides ingredients of framing the Charge for commission osf offence punishable U/s 304B IPC and in the alternative Section 498A IPC, ingredients for framing Charge U/s 306 IPC also exits in this case. Mere omission on part of trial Judge to mention Section 306 IPC with Section 498A IPC does not preclude the Court in convicting the accused for the said offence when found proved.
46.Ms.Nimmi Sisodia, Ld.Prosecutor has cited Judgment titled as Bhajan Singh @ Harbhajan Singh Vs. State of Haryana decided on 04.07.2011 in Crl.Appeal No. 562/2007, which mandates that U/s 215 Cr.P.C., omission to frame Charge U/s 306 IPC will not result in failure of Justice as further opportunity to defence was not required to be granted when accused had ample opportunity to meet the Charge U/s 498A IPC.
47. Ld.Prosecutor also placed reliance upon the Judgment titled as Result: Acquitted Page 27 of 55 State Vs. Akash Sharma FIR 355/14 (57369/2016) K.Prema S.Rao & Another Vs. Yadla Srinivasa Rao & others WITH State of A.P. Vs. Yadla Ranga Rao & Anorther (2003) 1 SCC 217 on Section 306 IPC. In this case, no evidence of demand of dowry 'Soon before her death' was found and hence, Section 304B IPC was not made out. It was however held that since offence U/s 498A IPC was made out, accused can be Convicted for the same and as on the same facts offence U/s 306 IPC was also made out, the accused could be convicted also for the said offence regardless of the fact that such Charges were not framed because alternative Charge U/s 498A IPC was duly framed and Section 215 and 221 Cr.P.C. takes care of such situation.
48. The ld.Prosecutor submitted that there have been instances when there was no justification to raise Presumption against the accused U/s 113B of the Indian evidence Act , the Courts have maintained Conviction U/s 498A IPC for which also the Prosecution has led sufficient evidence. Reliance is placed on Common Judgments in case titled as Sham Lal Vs. State of Haryana WITH Bhagwan Dass Vs. Sham Lal & others, 1997 (9) SCC 759.
49. On the aspect of interpretation of the term "Soon before her Result: Acquitted Page 28 of 55 State Vs. Akash Sharma FIR 355/14 (57369/2016) death", the Ld.Prosecutor placed reliance on Judgment in Kans Raj Vs. State of Punjab and others, AIR 2000 SC 2324 , submitting that mere lapse of time by itself would not provide the accused the defence that Cruelty or Harassment was not "Soon before her death".
FINDINGS :
50. Having said so, this Court is required to probe keeping in mind the relevant law and the Ingredients of Section 498A IPC and also Section 304B IPC. It will have to be conscious as to whether the Prosecution proves Cruelty and harassment upon Victim Priyanka with respect to demand of dowry on various occasions and also as to whether such demands had a live link with the cause of death of Priyanka in the sense that there was a demand which could be considered "Soon before death". The Court will then have to be conscious to say that the Prosecution has "shown" that there was such demand "Soon before death" for drawing presumption U/s 113B of the Indian Evidence Act, 1872. Further, the Court while dealing with the evidence will have to be also conscious if there is evidence regarding abetment of suicide of Priyanka within the Result: Acquitted Page 29 of 55 State Vs. Akash Sharma FIR 355/14 (57369/2016) meaning of Section 306 of the IPC worth enough to raise presumption as per Section 113A of the Indian Evidence Act.
51. Both the sides have presented their arguments and Ld.Prosecutor cited Judgments in support of her arguments.
52. Thus, this testimony is now to be dealt with in accordance of the ingredients of the offences Punishable U/s 498A IPC & also U/s 304B IPC r/w Section 113B of the Indian Evidence Act.
53. Section 498A IPC reads as under :
"Husband or relative of husband of a woman subjecting her to cruelty - whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine".
Explanation - For the purposes of this section, 'Cruelty' means -
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life,limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable Result: Acquitted Page 30 of 55 State Vs. Akash Sharma FIR 355/14 (57369/2016) security or is on account of failure by her or any person related to her to meet demand.
54. Section 304B IPC reads as under : "Where the death of a woman is caused by any burns of bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with any demand for dowry, such death shall be called 'dowry death' and such husband or relative shall be deemed to have caused her death." Explanation - for the purposes of this subsection, 'dowry' shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961.
55. The Hon'ble Supreme Court in Sunil Bajaj Vs. State of MP (2001) 9 SCC 417 after noticing the provisions of Section 304B IPC had opined that in order to establish an offence U/s 304B IPC, following ingredients must be established before any death can be termed as dowry death :
(1)The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances.Result: Acquitted Page 31 of 55
State Vs. Akash Sharma FIR 355/14 (57369/2016) (2) Such death must have occurred within 7 years of her marriage.
(3) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband.
(4) Such cruelty or harassment must be for or in connection with demand of dowry.
In this Judgment, it is also held that :
"This Section will apply whenever the occurrence of death of a woman is preceded by cruelty or harassment by husband or inlaws for dowry and death occurs in unnatural circumstances. The intention behind this section is to fasten the guilt on the husband or inlaws even though they did not in fact cause the death. It may be noticed that punishment for the offence of dowry death under Section 304B is imprisonment of not less than 7 years, which may extend to imprisonment for life, unlike under Section 498A IPC, where husband or relative of husband of a woman subjecting her to cruelty shall be liable to imprisonment for a term which may extend to three years and shall also be liable to fine. Normally, in a criminal case accused can be punished for an offence or establishment of commission of that offence on the basis of evidence, may be direct or circumstantial or both. But in case of an offence Result: Acquitted Page 32 of 55 State Vs. Akash Sharma FIR 355/14 (57369/2016) under Section 304B IPC, an exception is made by deeming provision as to the nature of death as "dowry death" and that the husband or his relative, as the case may be, is deemed to have caused such death, even in the absence of evidence to prove these aspects but on proving the existence of the ingredients of the said offence by convincing evidence. Hence, there is need for greater care and caution, that too having regard to the gravity of the punishment prescribed for the said offence, in scrutinizing the evidence and in arriving at the conclusion as to whether all the above mentioned ingredients of the offence are proved by the prosecution".
56. Section 113B of the Evidence Act is also relevant for the case in hand. Both Section 304B and Section 113B of the Evidence Act were inserted by Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113B of the Evidence Act, 1872 reads as under : "113B. Presumption as to dowry death - When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such Result: Acquitted Page 33 of 55 State Vs. Akash Sharma FIR 355/14 (57369/2016) woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation : For the purposes of this section, "dowry death"
shall have the same meaning as in Section 304B of the Indian Penal Code (45 of 1860)".
57. As per the definition of "dowry death" in Section 304B Indian Penal Code and the wording in the presumptive Section 113B of the Evidence Act, one of the essential ingredients amongst others, in both the provisions is that the woman concerned must have been 'soon before her death' subjected to cruelty or harassment "for or in connection with the demand for dowry". While considering these provisions, Hon'ble Supreme Court in M.Srinivasulu Vs. State of A.P. (2007) 12 SCC 443 has observed thus :
"8.4... The presumption shall be raised only on proof of the following essentials :
(1) The question before the court must be whether the accused has committed the dowry death of a woman.Result: Acquitted Page 34 of 55
State Vs. Akash Sharma FIR 355/14 (57369/2016) (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304B Indian Penal Code).
(2) The woman was subjected to cruelty or harassment by her husband or his relatives.
(3) Such cruelty or harassment was for, or in connection with any demand for dowry.
(4) Such cruelty or harassment was soon before her death".
58. A perusal of Section 113B of the Evidence Act and Section 304B Indian Penal Code shows that there must be material to show that "soon before her death" the victim was subjected to cruelty or harassment. In other words, the prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the "death occurring otherwise than in normal circumstances". The prosecution is obliged to show that soon before the occurrence, there was cruelty or harassment and only in that case presumption operates.
59. Further, I may as well add at this Juncture itself that improvements in testimonies which can be said to be minor shall not effect the entire testimony of the Prosecution witness if the testimonies are found to be minor only which do not put the veracity Result: Acquitted Page 35 of 55 State Vs. Akash Sharma FIR 355/14 (57369/2016) of statements of PW1/Smt.Meena Gupta, PW2/Rakesh Gupta and PW4/Atul Mahawar under serious Question Mark then they are liable to be ignored. It is held in (1) State of UP Vs. Naresh (2011) 4 SCC 324 that :
"Discrepancies are bound to occur in the deposition of witness due to normal error of observation, error of memory, due to lapse of time or due to mental condition such as shock and horror at the time of occurrence".
(2) In 1983 Crl.L.J.1096 (SC), it is held that :
"Much importance should not be given to minor discrepancies. They can overlooked unless discrepancies go to the root of the matter to impeach basic version".
(3) In 1980 Crl.L.J. 958, it is held that :
"Improvement of the story at the trial in one material particular. Entire evidence cannot be rejected".
Reliance can also be placed in this regard in the Judgment titled as (4) Inder Singh Vs. State (1978) 4 SCC 161, wherein it is held that :
Result: Acquitted Page 36 of 55State Vs. Akash Sharma FIR 355/14 (57369/2016) "Proof beyond reasonable doubt is a guideline and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes".
60. The Hall Mark of the Judgments on the issue cited by both the sides and also relied by this Court as in above Paragraphs is that the Cruelty or harassment which is to be shown by the Prosecution to exist must not only be "Soon before death of the Victim" but it should also be for or in connection with demand of dowry. It has been also established from Catena of Judgments as above that the relatives of such Victim have the tendency to rope in all the members of family of Victim's Inlaws for various reasons including the reason that they were unable to come to terms with the fact that there may have been some other cause distinct from demand of dowry/Cruelty/harassment which may have propelled the Victim to take away her own life. What is further followed from the Judgments is that the Presumption U/s 113B of the Indian Evidence Act shall be raised only in case of offence U/s 304B IPC and not U/s 498A IPC coupled with the fact that the Prosecution proved that the woman was subjected to Cruelty or harassment by her husband or his Result: Acquitted Page 37 of 55 State Vs. Akash Sharma FIR 355/14 (57369/2016) relatives and that the same was for or in connection with any demand for dowry which was "Soon before the death of a Woman" . What is also observed from the above Catena of Judgments is that the minor discrepancies and contradictions are not to be used for discrediting the interested witnesses i.e. relatives of the Victim and are to be over looked unless the discrepancy go to the root of the matter to impeach basic version of the Prosecution's case, regard being had to the fact that minor discrepancies may arise due to normal error of observation, memory, lapse of time, mental condition like Shock/Horror etc.
61. The arguments before me are full of factual narrations and advanced in a manner to show that the drastic Improvements and material contradictions are such that go to the root of the Prosecution case thereby rendering them so improbable that the defence seems to be more probable rather than the attack.
62. Section 498A IPC if proved to have been committed in terms of infliction of Cruelty upon the wife will tentamount to abetment within the meaning of Section 306 IPC were enough to raise presumption U/s 113A of the Indian Evidence Act . It is essential for Prosecution to prove the accusedhusband had subjected deceasedwife Priyanka Result: Acquitted Page 38 of 55 State Vs. Akash Sharma FIR 355/14 (57369/2016) to cruelty in terms of the Explanation to Section 498A IPC. The facts before me as such that the definition of Cruelty cannot be said to be limited to either explanation (a) or explanation (b) of Section 498A IPC. The main witnesses who are related to the deceased are her mother PW1, her mother's brotherinlaw PW2, the brotherin law of deceased PW4 and the brother of deceased PW6. Naturally therefore, they have an interest in the outcome of this trial and therefore, their testimonies are to be viewed with utmost caution. All these witnesses have deposed about only one incident of Cruelty which occurred in the month of April, 2014.
63. As per PW1, in month of January, 2014 (which she later corrected elsewhere in her examinationinchief as April, 2014), she received phone call of her daughter Priyanka informing that she was being beaten by accused and requesting that she be taken away from her husband's house. This fact is supported by remaining prosecution witnesses as above. All these testimonies are hearsay in nature as none of the witnesses or for that matter, other Prosecution witnesses ever saw or heard the couple quarrel. Even the case IO admits that despite his investigation, he never came across any neighbour who Result: Acquitted Page 39 of 55 State Vs. Akash Sharma FIR 355/14 (57369/2016) might have heard them quarreling. He also stated that during investigation, he never came across any complaint on the above aspect.
64. Though this testimony is hearsay but it is found consistently present in statements of PW1, PW2, PW4 and PW6.
65.According to the Prosecution, on the next day of call, PW1 who was not even aware of the address of her daughter and had inquired about it on the same phone call, left Bareily for Delhi alongwith her Son Ashish Gupta and brotherinlaw Rakesh Gupta for matrimonial house of the Victim. In this context, PW2 supports PW1. Son of PW1 namely Ashish deposes that after this Phone Call, Atul Mahawar/PW4 and his mother had brought his sister to Bareily where she was treated. In his crossexamination, he admits, that "it is correct that I had not visited Delhi".
66. The above is the first major contradiction amongst statements of the above interested material witnesses. PW6 had never visited Delhi with PW1.
67. In her crossexamination, PW1 further submitted that she had come to Delhi via Train. She and her Son Ashu (not examined) had Result: Acquitted Page 40 of 55 State Vs. Akash Sharma FIR 355/14 (57369/2016) boarded the train from Bareily at 08:00 AM and they reached Ghaziabad at 08:00 PM where brother of PW1 namely Rakesh Gupta met them as he was running a Canteen at Railway Station . From there, they came to Delhi and reached Mundka at about 11:00 AM - 12 Noon.
68. Rakesh Gupta - PW2 has not stated so.
69. PW4 Atul Mahawar is the brother in law of deceased. None but he states that two years prior to his deposition, he with PW1 had gone to house of Priyanka Gupta. This is another material contradiction.
70. PW1 states that when they met her daughter and remained in the house for 45 minutes, her daughter told her that she was harassed and tortured by accused Akash Sharma. Interestingly, at no place in the entire testimony does she state that the alleged harassment and torture was for or in connection with demand for dowry. Elsewhere also, she states to have given certain articles to her daughter and as per the brother of deceased, the said articles were given as Gifts. As a matter of fact, none of the witness had stated that any article was provided as a dowry article pursuance to a specific demand. Similar Result: Acquitted Page 41 of 55 State Vs. Akash Sharma FIR 355/14 (57369/2016) is the position with respect to the alleged demand of Rs.5 lacs by the accused made to the deceased but the reason is given that the accused wanted to purchase his house as he resided in a tenanted accommodation. Here also, none of the witnesses have stated that the deceased was subjected to Cruelty as the demand was not met. As a matter of fact, none of the witnesses have stated that this amount was demanded as a dowry.
71. Coming back to the visit of PW1 to her daughter's house, she admits that despite complaint of her daughter, she did not call the police or made any written complaint to the Police. She also did not inform the police when she took her daughter to the Jag Parvesh Hospital, Shastri Park for treatment. As per her statement," from the house of accused persons, first I went to the house of my relative at Shastri Park and thereafter, I alongwith my daughter went to hospital at Shastri Park". The defence had extensively cross examined this witness about her relative but the witness was unable to provide the name of this relative. No such relative was examined by the IO or cited by the Prosecution.
72. The relevant medical document in this context is Ex.PW5/B, Result: Acquitted Page 42 of 55 State Vs. Akash Sharma FIR 355/14 (57369/2016) which is response by MRO, Jag Pravesh Chandra Hospital dt. 20.10.2014 to the IO's application regarding verification of medical papers in respect of Priyanka regarding her treatment from this hospital on 20.04.2014 vide emergency Registration no. 39208. As per the same, the information sought was with respect to Priyanka aged 23 years however, the emergency OPD Card forwarded by the IO (which was collected from the relatives of the deceased) pertained to one 'Priya' aged 18 years. Same was verified. No MLC of the said date was found. The doctor on duty Dr Vivek Gupta, the Medical officer on duty Dr.Pamposh Rajdhan and treating doctor on duty Dr.Vivek Gupta have all left the hospital. Mark PW5/C is the copy of OPD Registration no.32004. It is dt. 20.04.2014 and prepared at 19:36 hours. It is in the name of one Priya aged 18 years with an alleged H/O 'beating by her husband' . It does not pertain to the deceased Priyanka. IO has admitted this aspect. Accordingly, the Prosecution does not prove that the Victim was taken in April, 2014 to this hospital for treatment of the alleged injuries, which, as per the relevant witnesses, was bluish mark around her eyes and all over the body of Priyanka. No other instance of alleged Cruelty is provided by Result: Acquitted Page 43 of 55 State Vs. Akash Sharma FIR 355/14 (57369/2016) any of the witnesses. There is no witness to the alleged beating given to the deceased on or before the day she allegedly called her mother on telephone regarding which no telephone call record/proof has been produced leaving thereby oral testimony which is also contradicted by the witnesses themselves in the manner explained above.
73. The matter does not end here.
74. No evidence has come on record that accused used to consume liquor and beat her on petty matters. PW1 admits that accused denied the allegations. If it was so, there was no occasion for the accused or his relatives to have apologized for this conduct when they allegedly went to Bareily to bring back the deceased to her matrimonial house.
75. Priyanka was then taken to Bareily on the next day of her alleged treatment from Jag Parvesh Hospital. As per PW1, Priyanka remained at her home at Bareily for about one Week. She was medically treated in Bareily also. The medical document in this regard is Ex.PX.1, which is in response by Dr.R.G.Sharma, Orthopadics Surgeon, R.G.hospital, Bareily to the IO regarding his application for verification of medical papers. As per the same, Priyanka Gupta consulted this doctor on 22.04.2014 as a case of Result: Acquitted Page 44 of 55 State Vs. Akash Sharma FIR 355/14 (57369/2016) 'Chest and back injury as a result of slipping from stairs' . Her mother Meena Gupta and her Jija Atul Mahawar had brought Priyanka to this hospital. The relevant document is annexed to Ex.PX.1. It makes no reference to incident of beating and as per the doctor's Note dt. 22.04.2014, "Patient slipped from Stairs on 16.04.2014 and sustained Chest injury and back injury" .
76. PW1 admits that she had given the same history to this doctor and offers her explanation that she did not want to disrupt family life of her daughter.
77. This testimony is not acceptable as admittedly, the deceased and the accused conducted a Lovemarriage without consent or knowledge of any of the family members of the deceased. PW1 and the other witnesses got information of her marriage with Akash in 2013. PW1 was not aware about the residence details of Akash. She admittedly did not speak with her daughter or even tried to find out as to where her matrimonial house was. She admittedly had no communication with her daughter till the alleged phone call and so is the position with her other relative witnesses. PW1 still claims that when the accused had come to Bareily with his younger brother Result: Acquitted Page 45 of 55 State Vs. Akash Sharma FIR 355/14 (57369/2016) Aman, his mother and cousin brotherinlaw, they had apologized and assured that they will not commit same thing again. Surprisingly, as per PW1, despite her refusal, they took her daughter forcibly. This is also unacceptable as the Victim is shown to be an educated lady and if force was applied, there is every likelihood that she would have resisted such force particularly when she was to be supposedly brought back from Bareily to Delhi. No such evidence is on record.
78. In this context, the statement of brother of deceased namely Ashish Gupta/PW6 is important, wherein he has mentioned that, "Akash brought my sister Priyanka to Delhi in pursuance of his assurances, we had not made any attempt to call Priyanka. It is correct that while leaving after the said assurances, Priyanka had stated that we should not continue having communication with her. (vol. When Priyanka agreed to accompany Akash, my brother had advised her not to accompany accused Akash again to Delhi, but Priyanka had refused to act upon the advise of my mother. It was in this continuation that we on our part and Priyanka on the other part had agreed not to maintain communication in future)" . Accordingly, the version of PW1 qua above has been demolished by none other than her son.
Result: Acquitted Page 46 of 55State Vs. Akash Sharma FIR 355/14 (57369/2016)
79.No other instance of Cruelty has been provided by the Pws.
Defence claims that only Akash visited the house of PW1 and that too, when he had received call from his wife Priyanka. According to defence which is manifest in the crossexamination of PW6, when he visited the house at Bareily, he was told that his wife had slipped from stairs and sustained injuries. Having regard to the above and the fact that treatment record at Delhi hospital is not proven in the name of Priyanka and further having regard to the fact that as per Pws, the history of the alleged injuries on deceased was due to fall from the stair case makes the case of the prosecution dubious.
80. So far as the death of Victim is concerned, postmortem report Ex.PX.3 proves that the death was caused due to asphyxia. The deadbody was discovered by Ms.Rinku Sharma/PW16. She received phone call at 12 noon from her Devar Akash (accused) who told PW 16 that Priyanka was not responding to his Phones and he requested her to check. It is to be noted that PW16 is a resident of same house. She found the room closed but not bolted. She tried to open the door and found Priyanka hanging from Ceiling Fan with the help of Chunni. She then informed Akash who returned home after some Result: Acquitted Page 47 of 55 State Vs. Akash Sharma FIR 355/14 (57369/2016) time. Both of them demounted the body of Priyanka after cutting the Dupatta. The Prosecution has filed CDR details of several Mobile Phones however, their perusal reveals that they are of no assistance to the Prosecution. There is nothing on record to show that the accused husband was present at the time of alleged incident. As a matter of fact, prosecution does not even prove as to who saw the Victim alive the last time before her deadbody was discovered. There is absolute silence about the above. Section 106 of the Indian Evidence Act can only be applied if there are special circumstances in the knowledge of the accused which he fails to explain. According to the accused, he was on his Job at Hilton Hotel, Janak Puri on the relevant day.
81. Regarding the death of a married women in circumstances which are not natural, IV Categories have been set out in Para 52 of the Judgment titled as Mukesh Vs. State reported in 2010 (2) JCC 1563, which is quoted as under :
"52. Having examined the decisions of the Supreme Court on the point of death of a wife in her matrimonial house, we deem it appro priate to classify the said judicial decisions into under noted 4 broad categories for the reason we are finding considerable confusion in the minds of the subordinate judges as to the correct position of law :Result: Acquitted Page 48 of 55
State Vs. Akash Sharma FIR 355/14 (57369/2016) I. In the first category fall the decisions were it is proved by the prosecution that the husband was present in the house when the wife suffered a homicidal death and rendered no explanation as to how his wife suffered the homicidal death. See the decisions re ported as State of Rajasthan Vs.Parthu (2007) 12 SCC 754; Amars ingh Munnasingh Suryavanshi Vs.State of Maharashtra AIR 2008 SC 479; Ganeshlal Vs.State of Mahrashtra (1992) 3 SCC 106; Prabhudayal Vs. State of Maharashtra (1993) 3 SCC 573; Dy naneshwar Vs. State of Maharashtra (2007) 10 SCC 445; Trimukh Maroti Kirkan Vs. State of Maharashtra (2006) 10 SCC 681; Bija Vs. State of Haryana (2008) 11 SCC 242 and State of Tamil Nadu Vs. Rajendran (1999) 8 SCC 679;
II. In the second category are the decisions where the prose cution could not prove the presence of the husband in the house when the wife suffered a homicidal death but the cir cumstances were such that it could be reasonably inferred that the husband was in the house and the husband failed to render any satisfactory explanation as to how his wife suf fered a homicidal death. The circumstances where from it could be inferred that the husband was in the house would be proof that they lived in the house and used to cohabit there Result: Acquitted Page 49 of 55 State Vs. Akash Sharma FIR 355/14 (57369/2016) and the death took place in such hours of the night when a husband was expected to be in the house i.e. the hours be tween night time and early morning. See the decisions re ported as State of U.P. Vs. Dr.Ravindra Prakash Mittal (1992)3 SCC 300 and Narendra Vs. State of Karnataka (2009) 6 SCC 61.
III. In the third category would be proof of a very strong mo tive for the husband to murder his wife and proof of there be ing a reasonable probability of the husband being in the house and having an opportunity to commit the murder. In the decision reported as Udaipal Singh Vs. State of U.P. (1972) 4 SCC 142 the deceased wife died in her matrimonial home in a room where she and her husband used to reside to gether. The accusedhusband had a very strong motive to murder the deceased which was evident from the letter written by him to his mistress, which letter clearly brought out the feeling of disgust which the accused had towards the de ceased. The accused had the opportunity to commit the mur der of the deceased as there was evidence to show the pres ence of the accused in the village where the house in which the deceased died was situated at the time of the death of the Result: Acquitted Page 50 of 55 State Vs. Akash Sharma FIR 355/14 (57369/2016) deceased. Noting the facts that the accused had a strong enough motive and an opportunity to murder the deceased, noting that there was no evidence that the appellant was seen in his house by anybody, the Supreme Court convicted the ac cused.
IV. In the fourth category are the decisions where the wife died in her matrimonial house but there was no evidence to show presence of the husband in the house at the time of the death of the wife and the time when the crime was committed was not of the kind contemplated by the decisions in category II and was of a kind when husbands are expected to be on their job and there was either no proof or motive or very weak motive being proved as in the decision reported as Khatri Hemraj Amulakh Vs. State of Gujarat AIR 1972 SC 922 and State of Punjab Vs. Hari Kishan 1997 SCC Cri.1211".
82. Categories IV is applicable in the present case. Accordingly, prosecution does not benefit from Bhajan Singh @ Harbhajan Singh (supra), K.Prema Rao (supra) or Sham Lal (supra) .
83. So far as Section 304B IPC is concerned, the Prosecution has proven that the unnatural death of the Victim occurred within 07 Result: Acquitted Page 51 of 55 State Vs. Akash Sharma FIR 355/14 (57369/2016) years of her marriage. It has to be proven firstly that the death was dowry death and then Secondly that "soon before her death" the Victim was subjected to such Cruelty or harassment, for or connection with any demand for dowry.
84.While discussing the aspect of Cruelty, this Court has come to a conclusion that none of the witnesses have stated that the demand of Rs.5 lacs from the accused which he made to his own wife was in connection with dowry. The witnesses merely state that accused wanted to purchase a house of his own. Only PW6 states that his mother PW1 had told him that accused was pressurizing the Victim to bring the money from her parents. These are bald averments. The priest concerned i.e. PW3 has admitted in crossexamination that there was no demand of dowry from the side of accused during the course of marriage. Likewise, the landlord PW7 who had let out a portion of his house to the accused also stated that he never saw or heard from anyone about accused fighting or arguing with his wife during any of his visits.
85. PW9 is brother of accused. In his crossexamination also, he had stated that he had never seen Akash and Priyanka quarreling in the Result: Acquitted Page 52 of 55 State Vs. Akash Sharma FIR 355/14 (57369/2016) house with each other at any point of time since their marriage.
86. PW15 Kaushal Sharma is also brother of accused who attended the marriage Ceremony. He is a Prosecution witness who is residing at a distance of 15 minutes walk from the house of deceased. He never came to know about any dispute between Akash and Priyanka. He admitted that both of them were living happy married life. He admitted that complaint against accused is false. Likewise, PW16 sisterinlaw of the deceased stated that she never saw the couple fighting with each other. She admitted that both of them were leading a happy married life. According to her, Priyanka had never made a complaint against Akash to her during her life time.
87. Prosecution is required to prove beyond reasonable doubt that deceased was subjected to Cruelty or harassment by accused for or in connection with dowry soon before her death. In this case, the Prosecution has not been able to cogently prove that the deceased was subjected to cruelty for dowry. As a matter of fact, Prosecution has not proved that the only incident of alleged Cruelty i.e. beatings given to the deceased in April, 2014 in the matrimonial house was by the accused. The deceased died soon after the alleged incident but merely because there is proximity of time between the alleged incident and Result: Acquitted Page 53 of 55 State Vs. Akash Sharma FIR 355/14 (57369/2016) the alleged suicide, it cannot be said that Prosecution proves the Charge U/s 304B IPC. In the instant case, the defence has offered no explanation as to what then could be the cause of the deceased taking away her life. However, this fact alone cannot be held as a decisive factor. In this context, it is held in NARENDER SINGH ARORA VS. STATE (GOVT.OF NCT DELHI) & OTHERS, 2010 SCC ONLINE DEL 2980 :
"6.Suicide is a known phenomenon of human nature. Suicides are committed by living human beings for various reasons, some are not able to bear the normal stresses which are common in life. Some are not able to cope up with the circumstances in which they are placed. Some commit suicide because of frustration of not achieving the desired goals. There are many cases where students commit suicide because they failed to achieve certain percentage of marks. Some commit suicide because they are not able to retain top position, some commit suicide because they are not able to cope with the demands of life. Some commit suicide because they suffer sudden loss, some commit suicide out of fear of being caught. There are various reasons for which suicides are committed by men and women. All suicides are unnatural deaths. Suicide is a complex phenomenon. One, who commits suicide, is not alive to disclose as to what was going on in his or her mind when he or she committed suicide. There is no presumption that every suicide committed by a married women in her inlaws' house or at her parents' house has to be because she was suffering harassment at the hands of her husband or her in laws.Result: Acquitted Page 54 of 55
State Vs. Akash Sharma FIR 355/14 (57369/2016)
7. Normally inlaws are convicted on the testimonies of parents of the girl who, in a fit of anger or because they had lost their daughter, are not prepared to believe that their daughter could commit suicide for any other reason. Xxxxxx xxxxx ".
88. The remaining witnesses of the Prosecution are police witnesses. I have already said that the IO admitted that he did not come across any supporting evidence verifying any of the claim made by PW1 in her statement given to Tehsildar/ PW14 which he recorded as Ex.PW1/A. CONCLUSION :
89.Consequently, case of the Prosecution against the accused is not proved beyond any reasonable doubts. Accused Akash Sharma is hereby acquitted for the Charges U/s 498A/304B IPC.
90. As per previous directions, the accused has already been furnished PB/SB in the sum of Rs.10,000/ with one Surety in the like amount in view of Section 437A Cr.P.C.
91. Further it is ordered that the case property of this case, if any, be disposed of/destroyed after expiry of period of filing appeal, if any.
Digitally signed92. File be consigned to Record Room. by MANISH YADUVANSHI MANISH YADUVANSHI Date:
2019.01.16 11:27:44 ANNOUNCED IN THE OPEN (MANISH YADUVANSHI) +0530 COURT ON: 14.01.2019 ASJ05 (West), THC, Delhi.Result: Acquitted Page 55 of 55