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2012 DIGILAW 856 (HP)

State of HP v. Vijay Sharma

2012-11-21

R.B.MISRA, V.K.SHARMA

body2012
Judgment R.B. Misra, J. The present criminal appeal has come up for consideration after the leave to appeal has been granted under section 378(3) of Code of Criminal procedure against the judgment dated 23.4.2007 passed by learned Additional Sessions Judge (Fast Track), Kullu, HP in Sessions Trial No. 17 of 2005, thereby acquitting the accused/respondents for the offence under Section 304-B of IPC. 2. The prosecution case, in brief, is that the victim Neena/eldest daughter of complainant Swami Dev Sharma, a shopkeeper, resident of Banjar, was married in the month of October, 2000 under local customs with Vijay Sharma after offering furniture, beds, utensils, golden and silver ornaments and Rs.45,000/- in cash to his daughter at the time of marriage. The marriage of victim was comfortable for 7-8 months, thereafter, accused Vijay Sharma and her mother Sarita started harassing to her on the pretext of demand of dowry and she was maltreated for not bearing child, so much so she was not allowed to go to the accused Vijay Sharma to the place of his posting at Kullu. On 9.8.2003 at 1.30 PM, victim talked to the complainant on telephone and stated that she was being maltreated and she is coming to the house of her parents. After 20 minutes when the complainant wanted to talk to her daughter on telephone, he was apprized of by Vijay Kumar that the victim had fallen ill and that she was vomiting. Victim was taken to Banjar hospital by accused Vijay Kumar, but she died in the hospital on 9.8.2003. On the complaint (Ext PW-8/A) of Swami Dev Sharma, FIR (Ext PW-6/A) was lodged and after investigation, accused/respondents were charged for the aforesaid offence. 3. In order to prove its case, prosecution has examined as many as nine witnesses, whereas the respondents/accused through their statements under section 313 of Cr.P.C have denied the prosecution case. 4. Postmortem examination of the dead body of victim Neena was conducted by PW-7 Dr. Bhupinder Chauhan and Dr. N.K. Prasher and in their opinions, victim had died due to poisoning, namely ‘Organo Phosphours’. 5. 4. Postmortem examination of the dead body of victim Neena was conducted by PW-7 Dr. Bhupinder Chauhan and Dr. N.K. Prasher and in their opinions, victim had died due to poisoning, namely ‘Organo Phosphours’. 5. (PW-1) Swami Dev Sharma, the father of the victim, in his endeavour to support the prosecution case has stated that marriage of his daughter was solemnized in October, 2002 after offering ornaments, utensils and Rs.45,000/- in cash and after about six months, PW-1 offered double bed, mattresses, beddings, steel almirah, chairs and tables to his daughter but the accused persons were taunting his daughter for not bearing child. As revealed by PW1 that the accused Vijay Sharma was working as Clerk in Irrigation-cum-Health department at Kullu where co-accused Sarita was residing with him, but the victim was not allowed to stay at Kullu with her husband. As revealed from the testimony of PW-1, the victim/Neena had visited her parental house on 7.8.2003 and returned back to the house of her husband on 9.8.2003 at 10 AM and whenever his daughter visited his house, it was told by her that she was maltreated by the accused persons for bringing insufficient dowry and for not bearing child. On 9.8.2003, at 1.30 PM, his daughter had telephonic conversation with (PW-1) to the effect that she was maltreated by the accused Vijay Sharma and intended to return back to her parental house. After lapse of 20 or 25 minutes, PW-1 made telephonic call at the house of her daughter. The said call was attended by accused Vijay Sharma and PW-1 was apprized of by accused Vijay Sharma that the victim had gone outside the house and would not be able to talk to him. At about 3.30 PM, accused Vijay Sharma gave a telephonic message to PW-1 that the victim had fallen ill and was suffering from vomiting and dysentery and was taken to Banjar hospital. 6. In his cross-examination, PW-1 had not disclosed to the co-villagers that the accused persons had been demanding dowry or about the fact that the amount of cash of Rs.45,000/- given at the time of marriage was deposited in her name in the bank. The cross examination of PW-1 reveals that the quarrel took place interse the parties in the month of September, 2003 in respect of demand of dowry, however, such fact was also not disclosed by PW-1 to anyone. The cross examination of PW-1 reveals that the quarrel took place interse the parties in the month of September, 2003 in respect of demand of dowry, however, such fact was also not disclosed by PW-1 to anyone. It appears from the cross- examination of PW-1 that victim was taken to the hospital by accused Vijay Kumar and necessary information was given to the parents of the victim in this connection. 7. After going through the contents of the FIR and testimonies of PW-1, it appears that as per the version of PW-1 given in FIR, victim was subjected to beating by accused Vijay Sharma and was prevented by accused Vijay Kumar to visit her parental house, but such facts did not find mention in the testimony of PW-1 Swami Dev Sharma. As revealed from the FIR, furniture and beddings apart from ornaments, utensils and cash amount of Rs.45,000/- were given to his daughter by the complainant at the time of marriage. However, such facts have been disowned by PW-1 on oath by stating that no bedding and furniture was given in dowry. As revealed by PW-1, victim/Neena had visited the house of PW-1 on 7.8.2003 and had returned back to the house of her in laws on 9.8.2003 at about 10 AM. Such facts were also not mentioned in the FIR Ext PW-6/A. The allegations of maltreatment, demand of dowry and narration of these aspects were said to be made to the mother of the victim as revealed from FIR Ext PW-6/A. Surprisingly Meena Sharma, the mother of the victim has been ignored and has not been examined for the reasons best known to the prosecution. Therefore, in the facts and circumstances, non-examination of the mother of the victim, renders the prosecution case doubtful. As revealed from the testimony of PW-1 that on 9.8.2003, when the victim informed PW-1 that she was being maltreated by accused Vijay Sharma and she intended to come back to his home, such narration of fact by victim cannot be said that she was being maltreated or harassed for demand of dowry. In our considered view, there is no indication that soon before her death, she was subjected to cruelty by her husband and her mother in law, in connection with demand of dowry. In our considered view, there is no indication that soon before her death, she was subjected to cruelty by her husband and her mother in law, in connection with demand of dowry. In our considered view, prosecution has done futile exercise to show that soon before the occurrence, there was cruelty and harassment and that the said cruelty or harassment was done by her husband or close relative in connection with demand of dowry. 8. In order to prove the allegations of the offence under Section 304-B of IPC, there should be proximate link between the cruelty based on demand of dowry and death of victim in view of the decision of Hon’ble Supreme Court in Sharad Vs State of Maharashtra (2012) 5 SCC 548 . In view of the judgment of Hon’ble Supreme Court in Bansi Lal Vs State of Haryana (2011) 11 SCC 359 , the expression “soon before her death” provided under section 304-B of IPC, there should be proximate connection between demand of dowry and act of cruelty or harassment and death. The presumption would only arise in reference to section 113 (B) of Evidence Act, 1892 in respect of death of victim for demand of dowry. The cruelty and harassment and demand of dowry could be proved in close proximate of the death of victim, whereas in our respectful consideration, in the facts and circumstances of the present case, the harassment, maltreatment and cruelty is not proved in reference to any demand of the dowry. 9. The stand of the Appellant-State that the victim was being harassed for insufficient dowry and for not bearing child be treated as harassment, cruelty and maltreatment on the part of the accused in view of the judgment of Hon’ble Supreme Court in Amar Singh Vs. State of Rajasthan AIR 2010 SC 3391 . 10. In our considered view, in the present case, the prosecution has miserably failed to prove that there was a demand of dowry what to say of any harassment or cruelty made by the accused persons to the victim. 11. Learned counsel for the defence has referred and relied upon the judgment of this Court DB State of HP Vs. 10. In our considered view, in the present case, the prosecution has miserably failed to prove that there was a demand of dowry what to say of any harassment or cruelty made by the accused persons to the victim. 11. Learned counsel for the defence has referred and relied upon the judgment of this Court DB State of HP Vs. Chinto Devi & anr Latest HLJ 2010 (HP) 1019 wherein this Court relying on the decision of Hon’ble Supreme Court has observed that there must be material to show that soon before her death, the victim was subjected to cruelty and harassment and the cruelty and harassment must be for or in connection with demand of dowry. 12. Testimonies of PW-1 Swami Dev Sharma, PW-2 Gopal Singh, PW-3 Ranjana Sharma, PW-4 Parvesh Sharma do not prove that any demand of dowry, maltreatment or harassment was being made by the accused/respondents. We also notice that the accused/respondent himself has taken the ailing victim to the hospital and has duly informed the parents of the victim and no information about the demand of dowry, maltreatment or harassment was ever made to any villager, Gram panchayat or to the police in order to corroborate the allegation of demand of dowry or maltreatment. 13. On analysis of the prosecution witnesses and material on record, learned Addl. Sessions Judge has rightly come to the conclusion that the prosecution has failed to bring home guilt to the accused. In our considered view, prosecution has failed to prove its case beyond reasonable doubt. We find no scope for interference in the impugned judgment. The criminal appeal, being devoid of merit, is accordingly dismissed. 12. Bail bonds, furnished by the respondents/accused, are hereby discharged.