SC No. 56880/2016 IN THE COURT OF MS. SMITA GARG, ADDITIONAL SESSIONS JUDGE FAST TRACK COURT, WEST DISTRICT, TIS HAZARI COURTS, DELHI. Sessions Case No. :56880/2016 FIR No. : 183/2013 Under Sections : 498A/304B IPC Police Station : Uttam Nagar State Vs. Sudesh Sharma, S/o Sh. Charan Das Sharma, R/o WZ75, Om Vihar PhaseIV, Uttam Nagar, New Delhi. Date of committal : 04.07.2013 Date of pronouncement of Judgment : 18.07.2017 JUDGMENT:
1. Accused is the husband of Neelam (i.e. the deceased). Marriage between them was solemnized on 16.02.2012. On 08.04.2013, Neelam died unnatural death at her matrimonial home. Allegations against the accused are that he used to harass Neelam for illegal demands of dowry and that soon before her death, he had subjected Neelam to cruelty/harassment in connection with demands of dowry.
FIR No.183/2013 State Vs. Sudesh Sharma Page No. 1/ 22 SC No. 56880/2016
2. The case of the prosecution is as follows: 2.1 In the intervening night of 07.04.2013 and 08.04.2013 at about 03:12 AM, information was received at P.S Uttam Nagar regarding the commission of suicide by Neelam by hanging herself from the ceiling fan. On the basis of information, DD No.15A was recorded and was assigned to SI N. L. Yadav for inquiry. He alongwith Ct. Sachin went to the house of the deceased i.e. House No. WZ75, Om Vihar, Phase4, Som Bazar, Uttam Nagar, Delhi and found that in a room on the first floor of the house, dead body of Neelam was lying on the bed. Near the dead body, one chunni was lying on the bed. One plastic chair was lying near the bed. Bolt of the door of the room was also found broken from inside. SI N. L. Yadav called the crime team to the spot and got it inspected and photographed. Upon inquiry, it was revealed that the marriage of the deceased had taken place about one year ago prior to the incident. SI N.L. Yadav sent the dead body of the deceased to DDU Hospital Mortuary through Ct. Sachin for preservation. He also sent information to SDM Patel Nagar. Upon receiving the information, Sh. C. L. Meena, Executive Magistrate visited Deen Dayal Upadhayaya Hospital Mortuary and inspected the dead body. He also recorded the statement of Sh. Hari Pal Singh FIR No.183/2013 State Vs. Sudesh Sharma Page No. 2/ 22 SC No. 56880/2016 i.e. the father of the deceased.
2.2 In his statement, the complainant Sh. Hari Pal Singh stated that he worked with MCD and had solemnized the marriage of her daughter Neelam with the accused Sudesh on 16.02.2012 according to Hindu rites and customs. At the time of marriage, the accused and his family members had demanded an AC but the remaining articles were given by him out of his free will. However, after the marriage, accused Sudesh started making demands of motorcycle from the deceased. The deceased had informed the complainant that the accused used to say that he would kill himself as well as the deceased. The complainant alleged that his daughter had been killed by the accused Sudesh and thus, he sought action against him.
2.3 The above statement of the complainant was endorsed by Executive Magistrate Sh. C. L. Meena and was forwarded to SHO PS Uttam Nagar for further legal action. On the directions of the SHO, the present FIR under Section 498A/304B IPC was registered on 08.04.2013 and the investigation of the case was assigned to Insp. Mukesh Kumar.
2.4 During the course of investigation, Insp. Mukesh Kumar FIR No.183/2013 State Vs. Sudesh Sharma Page No. 3/ 22 SC No. 56880/2016 inspected the spot and prepared site plan. He seized the chunni from the spot and arrested the accused Sudesh Sharma. After the postmortem, dead body of Neelam was handed over to her relatives. Case property and viscera of the deceased were deposited in malkhana. As per the postmortem report, the cause of death was opined to be asphyxia from ante mortem ligature hanging. Viscera of the deceased was sent to FSL for examination. After the completion of investigation, Insp. Mukesh Kumar filed the charge sheet in court on 04.06.2013.
3 Charge: On 21.08.2013, charge for the commission of offences
punishable under Sections 498A/304B IPC were framed against the accused. Alternative charge for the commission of offence under Section 302 IPC was also framed against him. Accused pleaded not guilty to the charges framed against him and claimed trial.
4 Prosecution evidence: In support of its case, the prosecution examined 14 witnesses.
4.1 PW1 H. Ct. Ram Singh was examined to prove DD No.15A vide FIR No.183/2013 State Vs. Sudesh Sharma Page No. 4/ 22 SC No. 56880/2016 which the information regarding the incident was received at PS Uttam Nagar. He deposed that on 08.04.2013 at about 01:00 am in the night, he received information from Control Room that the daughter in law of the informer had hung herself at house No.WZ7576, Phase4, Om Vihar, Uttam Nagar, Delhi and that on the basis of the said information, he had recorded DD No.15A, which was sent to SI N. L. Yadav for necessary action. He proved DD No.15A as Ex.PW15/A.
4.2 PW2 Smt. Sharda is the mother of the deceased.
4.3 PW3 H. Ct. Chandra Hass is the duty officer. He deposed that on 08.04.2013 at about 06:25 pm, he received the rukka from SI N. L. Yadav and on the basis of the same, he recorded the FIR. He proved the copy of the FIR as Ex.PW3/A, the certificate under Section 65B of Indian Evidence Act issued by him as Ex.PW3/B and endorsement made by him on the rukka Ex.PW3/C.
4.4 PW4 Hari Pal is the complainant/father of the deceased.
4.5 PW5 Sh. Bhagwat Swaroop is the paternal uncle of the FIR No.183/2013 State Vs. Sudesh Sharma Page No. 5/ 22 SC No. 56880/2016 deceased.
4.6 PW6 ASI Ajeet Singh is the member of the crime team. He deposed that upon receiving the information regarding the incident on 08.04.2013, he went to the spot i.e. first floor of house no.WZ75, Om Vihar, Phase4, Uttam Nagar, Delhi and found that the deceased, whose name was revealed as Neelam, was lying on the bed and two chunnis tied with each other were lying near the dead body on the bed. He inspected the spot and prepared the inspection report. He proved the said report as Ex.PW6/A.
4.7 PW7 H. Ct. Sanjeev is the photographer. He deposed that on 08.04.2013, he had accompanied the crime team to the spot and had taken six photographs of the spot from different angles. He proved the said photographs and the negatives thereof as Ex.P1 (Colly).
4.8 PW8 Pawan Kumar is the neighbour of the accused Sudesh.
Though he had been examined to prove the factum of marriage of the accused with the deceased on 16.02.2012 but he stated that he had not attended the said marriage. Upon being cross FIR No.183/2013 State Vs. Sudesh Sharma Page No. 6/ 22 SC No. 56880/2016 examined by the Ld. APP, he admitted that the marriage was held at Loni, Ghaziabad.
4.9 PW9 Sh. C. L. Meena deposed that on 08.04.2013, he was posted as Executive Magistrate, Patel Nagar, Delhi and that on receiving the information from SDM, Patel Nagar at about 07:00/08:00 am regarding the commission of suicide by a lady, he went to DDU Hospital where he met SI N. L. Yadav and the father of the deceased. He deposed that he recorded the statement of the father of the deceased and after the identification of the dead body of the deceased by her father and paternal uncle, IO prepared the inquest papers for getting the postmortem conducted. He proved the statement of the paternal uncle of the deceased regarding the identification of the body as Ex.PW9/A, request for postmortem as Ex.PW9/B, brief facts of the case prepared by him as Ex.PW9/C and form no.25.35 as Ex.PW9/D. He deposed that after the postmortem, the dead body of the deceased was handed over to her father vide receipt Ex.PW4/C and the statement of the father of the deceased was handed over by him to SI N. L. Yadav for necessary action as per law. He deposed that he had also visited the spot with SI N. L. Yadav and that two chunnis were seized from the spot by SI FIR No.183/2013 State Vs. Sudesh Sharma Page No. 7/ 22 SC No. 56880/2016 N. L. Yadav vide memo Ex.PW9/E.
4.10 PW10 Dr. Nishu Dhawan was examined to prove the postmortem report. She deposed that on 08.04.2013, the postmortem on the body of the deceased was conducted by Dr. Santosh and that as per the postmortem report, the cause of death was asphyxia from ante mortem ligature hanging. She identified the signatures of Dr. Santosh on the postmortem report and proved the same as Ex.PW10/A.
4.11 PW11 Ct. Sachin had accompanied SI N. L. Yadav to the spot upon receiving DD No.15A on 08.04.2013. He deposed that upon reaching the house of the deceased, they found the dead body lying on the bed in a room on the first floor of the house. Two chunnies tied with each other were also lying near the dead body. One plastic chair was also found lying on the floor in the room. While the accused was sitting and weeping near the dead body of the deceased, other relatives of the accused were present at the ground floor and first floor of the house. Upon being revealed that the marriage between the accused and the deceased had taken place one year ago, SI N.L. Yadav informed the SHO and SDM, Patel Nagar about the incident. Crime team FIR No.183/2013 State Vs. Sudesh Sharma Page No. 8/ 22 SC No. 56880/2016 was called at the spot. After inspection on the spot, Incharge of the crime team prepared the inspection report. Photographer accompanying the crime team took photographs of the spot. On the instruction of SI N.L. Yadav, dead body of the deceased Neelam was taken to DDU Hospital Mortuary for preservation. After some time, Executive Magistrate Sh. C.L. Meena also reached the hospital and inspected the dead body. On his instruction, the inquest paper for postmortem were prepared and after the postmortem, dead body of the deceased was handed over to her father Sh. Haripal Singh. He deposed that Executive Magistrate Sh. C.L. Meena recorded the statement of father of the deceased and directed for the registration of the FIR and therefore, he went to the police station for the registration of the FIR whereafter the investigation of the case was marked to Insp. Mukesh Kumar. He deposed that he alongwith Insp. Mukesh Kumar again went to the spot and after interrogation, the accused was arrested from the spot by Insp. Mukesh Kumar. He proved the arrest memo as well as personal search memo of the accused Sudesh Sharma as Ex. PW11/A and Ex. PW11/B respectively. He stated that the accused also made a disclosure statement (Ex. PW11/C) and after getting the accused medically examined, he was produced in court. He also FIR No.183/2013 State Vs. Sudesh Sharma Page No. 9/ 22 SC No. 56880/2016 identified the chunnies seized from the spot (Ex. P1 colly).
4.12 PW12 SI N. L. Yadav deposed on the same lines as that of PW 11 Ct. Sachin. He also proved the request letter for postmortem as Ex. PW12/A, copy of DD No. 15A as Ex. PW12/B, site plan as Ex. PW12/C, seizure memo vide which the viscera patty and the sample seal were seized after the postmortem as Ex. PW12/D, endorsement made by him on the statement of the complainant Sh. Haripal Singh as Ex. PW12/E.
4.13 PW13 Insp. Mukesh Kumar is the investigating officer of the case. He deposed that upon receiving the copy of FIR and original rukka, he alongwith SI N.L. Yadav and Ct. Sachin went to the spot and after inspecting the spot, he prepared the site plan (Ex. PW13/A). The accused, who was present at the spot, was interrogated and arrested in the case by him. After medical examination, the accused was produced before the court from where he was sent to Judicial Custody. He deposed that during the investigation of the case, he recorded the statement of witnesses under Section 161 CrPC, collected the photographs from the crime team, seized the copy of invitation card of the marriage as well as photographs of marriage vide seizure memo FIR No.183/2013 State Vs. Sudesh Sharma Page No. 10/ 22 SC No. 56880/2016 Ex. PW13/C and collected postmortem report and the inquest papers from the hospital. He further deposed that he had also collected the report from FSL (Ex. PW13/D) and obtained subsequent opinion (Ex. PW13/E) of the doctor concerned regarding the manner of death.
4.14 PW14 Dr. B. N. Mishra was examined to prove the subsequent opinion given by him regarding the manner of death after receiving the FSL result. He deposed that after considering the postmortem report and the FSL result, he found that the manner of death was consistent to suicide. He proved his report as Ex. PW13/E.
5 Statement of accused: The statement of the accused under Section 313 CrPC was recorded on 27.08.2016 wherein all the incriminating evidence and documents on record were put to him to which his stand was of general denial. He claimed that he was innocent and had been falsely implicated in the case. He stated that neither he made any demand of dowry nor harassed or tortured the deceased at any point of time. He raised the defence that the deceased was not satisfied with his job.
FIR No.183/2013 State Vs. Sudesh Sharma Page No. 11/ 22 SC No. 56880/2016 6 In his defence, the accused examined his neighbours Sh. Naresh Kumar and Sh. Suresh Kumar as DW1 & DW2 respectively. Both of them deposed that they knew the family of the accused for the last about twenty years and had been on visiting terms with them. They deposed that whenever they visited the house of accused, they saw that the deceased Neelam was happy and that no demand of dowry was ever made by the accused and his family members at any point of time. They stated that the deceased Neelam was not happy with the job of accused and that the accused had been falsely implicated in the present case. However, in their cross examination, it came on record that none of them had ever visited the house of the accused and whatever interaction they had, it was only with the father of the accused. They also admitted that they had never interacted with the deceased.
9 I have heard the Ld. APP for state and the counsel for the accused. Record has also been perused.
10 Ld. APP has argued that from the testimonies of the witnesses examined and the documents proved on record, the prosecution FIR No.183/2013 State Vs. Sudesh Sharma Page No. 12/ 22 SC No. 56880/2016 has succeeded in establishing its case beyond reasonable doubt against the accused and therefore, the accused is liable to be convicted for the charge against him.
On the other hand, the counsel for the accused has submitted that the prosecution has miserably failed to prove the guilt of the accused. He has argued that the allegations of cruelty or harassment for demand of dowry against the accused are general and vague in nature and no case under Section 498AIPC is made out on the basis of allegations of harassment for demand of dowry without specifying any date, time and place. He has further argued that no suicide note has been left behind by the deceased and since her parents and paternal uncle examined by the prosecution are the interested witnesses, the court should be cautious before placing any reliance upon their testimonies. He has submitted that there are improvements and contradictions in the testimonies of the said witnesses rendering them unreliable and unworthy of credence. He has urged that since no complaint of harassment for dowry had ever been lodged against the accused coupled with the fact that the accused had remained present at the spot shows that he is innocent. On the basis of above submissions, it has been prayed that the accused deserves FIR No.183/2013 State Vs. Sudesh Sharma Page No. 13/ 22 SC No. 56880/2016 to be acquitted.
11 Before going into the factual aspects of the case, it would be appropriate to refer to the relevant provisions of the Indian Penal Code.
498A. 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 purpose of this section, “cruelty” means
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
304B. Dowry death – Where the death of a woman is caused by any burns 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.
From the above provisions, it follows that in order to bring FIR No.183/2013 State Vs. Sudesh Sharma Page No. 14/ 22 SC No. 56880/2016 home the guilt of the accused, the prosecution was required to prove that:
(i) the death of Neelam was under unnatural circumstances;
(ii) the death occurred within seven years from the date of her marriage;
(iii) she was subjected to cruelty or harassment by the accused for or in connection with the demand of dowry; and
(iv) such cruelty or harassment was made soon before her death.
12 It is an admitted fact that the marriage between the accused and Neelam was solemnized on 16.02.2012. It is also not in dispute that death of Neelam took place in the intervening night of 07.04.2013 and 08.04.2013 i.e. within a period of seven years from the date of her marriage. Postmortem on her dead body was conducted on 08.04.2013 by Dr. Santosh Kumar at DDU Hospital. In order to prove the postmortem report, prosecution has examined Dr. Nishu Dhawan as PW10. She has proved the postmortem report as Ex. PW10/A. In the report, it has been opined that the cause of death was asphyxia from ante mortem ligature hanging. In view of the above medical evidence, it is evident that the death of Neelam was not caused under normal circumstances.
FIR No.183/2013 State Vs. Sudesh Sharma Page No. 15/ 22 SC No. 56880/2016 13 Now, the next question which is required to be considered is whether the deceased had been subjected to cruelty or harassment for the demand of dowry by the accused. On this aspect, the case of the prosecution hinges on the testimonies of PW2 Smt. Sharda and PW4 Sh. Haripal Singh (i.e. the parents of the deceased) and PW5 Sh. Bhagwat Swaroop (i.e. paternal uncle of the deceased).
14 The depositions of PW2 Smt. Sharda and PW4 Haripal Singh are more or less on the same lines. Both of them deposed that their daughter Neelam was married with the accused on 16.02.2012 according to Hindu rites and ceremonies; that at the time of marriage, the accused and his family members demanded Air Conditioner which was given alongwith other articles; that after the marriage, accused and his family members started harassing Neelam for demands of dowry; that the accused and his brother Mukesh made the demand of motorcycle, mother of the accused demanded gold chain and sister in law of the accused demanded gold tops; that the deceased used to tell them about the demands made by her husband and in laws as and when she used to visit them; that FIR No.183/2013 State Vs. Sudesh Sharma Page No. 16/ 22 SC No. 56880/2016 their daughter Neelam had visited them on the occasion of Holi in the year 2013 and when the accused came to take her back to the matrimonial home on 03.04.2013, they had assured him that they would give the motorcycle as and when the same could be arranged by them.
A perusal of the above depositions of PW2 and PW4 shows that the allegations of demand of dowry as well as harassment of Neelam by the accused and his family members are vague and general in nature in as much as no date or time of the alleged demands was given by either of them. Neither any specific incident of harassment by the accused nor the kind of harassment or how the deceased was treated badly has been stated by the witnesses. The only instance of harassment stated by the witnesses is that the accused used to say to their daughter that he would either kill himself or kill her if his demand of motorcycle was not met. The said instance unaccompanied by any act of physical abuse can not be said to be a cruelty of such a nature so as to drive Neelam to commit suicide. In fact, PW2 Smt. Sharda has admitted in her cross examination that she did not know the date and month when the alleged demands of dowry/motorcycle was made by the accused and his family FIR No.183/2013 State Vs. Sudesh Sharma Page No. 17/ 22 SC No. 56880/2016 members. Further, both PW2 and PW4 admitted that they had never made any complaint to any Authority against the accused and his family members regarding their demands and harassment of Neelam during the lifetime of their daughter. Though PW4 stated that he had talked to Satpal (i.e. the mediator of marriage) 23 times about the demands of the accused and his family members but neither any inquiry was made from the said Satpal during the course of investigation nor he was cited and examined as witness by the prosecution. Failure to lodge any complaint against the accused and his family members in respect of the alleged demand of dowry and harassment of Neelam and non examination of the mediator Satpal also creates a doubt regarding the facts deposed by PW2 and PW4.
15 Further, in his deposition, PW4 Haripal Singh also stated that the brothers of the accused had made the demand of Rs. 50,000/ and that on the occasion of Diwali, he had visited the matrimonial home of his daughter and given a sum of Rs. 21,000/ to them. However, no material was produced on record to corroborate the same. Though PW2 Smt. Sharda had admitted in her cross examination that she and her husband (i.e. PW4) used to talk about her daughter and the demands made FIR No.183/2013 State Vs. Sudesh Sharma Page No. 18/ 22 SC No. 56880/2016 by the accused but quite surprisingly, she did not utter anything regarding the payment of above amount by her husband to the accused and his family members on the occasion of Diwali. Had the said amount actually been paid, PW2 Smt. Sharda would have certainly corroborated the version of PW4 on the above aspect. Her omission to do bellies the depositions of PW4 on this score.
16 In addition to the above, PW4 Haripal Singh also stated in his deposition that prior to her death on 08.04.2013, the deceased had called him on 06.04.2013 and informed that she was being harassed by the accused. This part of deposition of PW4 is clearly an improvement as no such averment had been made by him in his statement under Section 161 CrPC. Further, neither the call detail record of the mobile phone of PW4 was produced on record to substantiate the same nor the said fact was corroborated by PW2 Smt. Sharda in her deposition. Hence, the deposition of PW4 on the above aspect is also found to be unreliable.
17 At this juncture, it is pertinent to mention that the present FIR had been registered on the basis of the statement of PW4 FIR No.183/2013 State Vs. Sudesh Sharma Page No. 19/ 22 SC No. 56880/2016 Haripal Singh recorded on 08.04.2013 (Ex. PW4/B). In the said statement, he had leveled allegations of demand of motorcycle against the accused only. Later on, in his statement underSection 161 CrPC recorded on 11.04.2013, he implicated other family members of the accused as well. Thereafter, in his deposition in court, he made certain other improvements as mentioned above. It is the settled law that where a witness makes two inconsistent statements either at one stage or at two stages, the testimony of such witness becomes unreliable and unworthy of credence. In this regard, reference may be made to Surajmal v. State, AIR 1979 SC 1408.
18 The prosecution has also examined Sh. Bhagwat Swaroop i.e. the paternal uncle of the deceased as PW5. However, his testimony also does not render any help to the case of the prosecution. While PW2 Smt. Sharda and PW4 Sh. Haripal Singh deposed that the accused and his family members had started making demands after the marriage, PW5 stated that the demands were made after the festival of Diwali. Further PW5 stated that upon being harassed, Neelam had been brought to her parental home and that she remained there till the festival of Holi whereas PW2 & 4 deposed that Neelam had come to her FIR No.183/2013 State Vs. Sudesh Sharma Page No. 20/ 22 SC No. 56880/2016 parental home on the festival of Holi. This goes to show that PW5 was not fully aware about the facts concerning the marital life of the deceased. Apart therefrom, the deposition of PW5 qua the allegation of demand of dowry as well as harassment of Neelam was also too general and vague in nature.
19 In the light of above discussion, it is evident that the prosecution has failed to discharge the onus and prove that the accused used to subject the deceased to cruelty or harassment for the demand of dowry. Accordingly, the accused is liable to be acquitted of charge under Section 498A/304B IPC.
20 Alternative charge for the commission of offence under Section 302 IPC was also framed against the accused but the prosecution has failed to prove and establish the said charge as well. It is the case of the prosecution that on inspection, it was found that the door of the room of the deceased had been opened by breaking the latch which was bolted from inside. As per the postmortem report (Ex.PW10/A), no fresh external injury was found present over the body of the deceased except the ligature mark present on the upper border of thyroid cartilage obliquely going towards right latero posterior aspect of FIR No.183/2013 State Vs. Sudesh Sharma Page No. 21/ 22 SC No. 56880/2016 the neck, where the ligature mark was found to be missing/incomplete. After obtaining the report from FSL with regard to the blood and viscera of the deceased, subsequent opinion was obtained from Dr. B.N. Mishra. In his report (Ex. PW13/E), PW14 Dr. B.N. Mishra has opined that the manner of death was consistent with suicide. In the absence of any evidence of homicidal death on record, charge for the offence under Section 302 IPC also fails against the accused.
21 Consequently, accused Sudesh Sharma is hereby acquitted of the charge for the commission of offence punishable under Sections 498A/304B/302 IPC against him.
Bail bond in terms of Section 437A CrPC has already been furnished. The same shall remain in force for a period of six months from today.
File be consigned to record room after necessary compliance.
Announced in the open court (Smita Garg) on 18.07.2017 Addl. Sessions JudgeFTC, (West) Tis Hazari Courts, Delhi.
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