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2014 DIGILAW 804 (PNJ)

Avdesh Sharma v. State of Haryana

2014-05-07

K.C.PURI

body2014
JUDGMENT K.C. Puri, J. Vide this judgment I intend to dispose of CRA S-2224 SB of 2003 titled as Avdesh Sharma vs. State of Haryana and CRR No.354of 2004 titled as Suman vs. State of Haryana and another, as both these cases have arisen out of the same judgment. Briefly stated, the present accused appellant Avdesh Sharma, alongwith Vipula, Kamni, Hitesh Sharma and Avinash were sent to stand trial for offence under Sections 498-A, 406, 324, 325, 307, 506, 316, 34 IPC, by SHO of Police Station City Yamuna Nagar, vide FIR No. 405 dated 4.7.1997. The facts, as gathered from the record of the case are that on 4.7.1997, complainant Suman came to Police Station City Yamuna Nagar and presented an application before SI Ram Kishan, in which she has stated that she is aged about 25 years. Her father had expired about 14-15 years ago. She has further stated that she is educated and her marriage was solemnized with Hitesh Sharma s/o O.P. Sharma, r/o Devtan Mohalla, Pathar Wali, Jawalapur U.P. on 15.1.1996 according to Hindu rites and ceremonies. At the time of marriage, her mother had given dowry articles in accordance with her capacity. She and her husband Hitesh Sharma lived together for some time i.e. till 18.4.1997 at Yamuna Nagar and Jawalapur as husband and wife. Thereafter her in-laws started passing taunts and beatings to her for bringing less dowry, when she went to her matrimonial house. She was harassed, beaten up and was kept hungry without any reason. Even abuses were also hurled. At night time on 18.4.1997 she was beaten up by Kamni wife of Avdesh and her sister-in-law Vipula and was confined in a room so that the neighbours may not come to know about the same. Even she was not allowed to write a letter to her parents, however, somehow she succeeded in dropping some letters to her parents with the help of playing children. She was kept in frightened condition so that she may bring a Yamaha Motor Cycle from her mother. On 15.8.1996 beatings were given to her mercilessly at Yamuna Nagar. At that time medico-legal examination of the complainant was also conducted but keeping in view her future, she did not initiate any action. On tendering of apology by accused, she agreed to go and live at Jawalapur, but the behaviour of the accused persons remained as such unchanged. On 15.8.1996 beatings were given to her mercilessly at Yamuna Nagar. At that time medico-legal examination of the complainant was also conducted but keeping in view her future, she did not initiate any action. On tendering of apology by accused, she agreed to go and live at Jawalapur, but the behaviour of the accused persons remained as such unchanged. She was compelled to write a postcard to her widowed mother to bring more dowry and bring a Yamaha Motor Cycle and she also expressed her apprehension regarding danger to her life. She was not allowed to use her dowry articles and was compelled to sleep on the floor. All the dowry articles and Istridhan of the complainant were misused by accused persons. The ornaments were also taken away from her, which are with Kamni wife of Avdesh Sharma and she has refused to return the same. On 14.3.1997 she was badly beaten. Her mother immediately reached Jawalapur and in order to save her life took her to Yamuna Nagar. On the next day, all the accused persons reached Yamuna Nagar in a Van and raised quarrel with complainant and her widowed mother. They forcibly wanted to take her to Jawalapur, but since her life was in danger, therefore, she was not prepared to go with them. Beatings were given to the complainant and her widowed mother. Husband of complainant caused blow on her head with some sharp edged item like an iron rod and blood started oozing out. Kamni gave danda blow on her head, but she warded off the attack and the stick (danda) hit her on arm. The matter was reported to the police but no timely action was taken. She got herself medico legally examined from Civil Hospital, Yamuna Nagar. No action was taken by the police, and in the meantime, the complainant being pregnant had to be admitted in Vishal Hospital, Yamuna Nagar, where on account of beatings given to her, death of her un-born child was caused inside the womb. The doctor aborted it. It is further alleged that the complainant is legally married to Hitesh Sharma and she has been given merciless beatings by the accused with intention to kill her. The entire Istridhan of the complainant and all her wearing apparels have been snatched from her by the accused and refused to return the same. The doctor aborted it. It is further alleged that the complainant is legally married to Hitesh Sharma and she has been given merciless beatings by the accused with intention to kill her. The entire Istridhan of the complainant and all her wearing apparels have been snatched from her by the accused and refused to return the same. She was harassed and made helpless so that she may commit suicide at Jawalapur, but she could not do so. Accused persons also tried to kill her once. Kamni and Hitesh Sharma tried to kill her by pressing her neck but they did not succeed. She made complaint against the accused persons on 18.3.1997 after her discharge from Vishal Hospital, but no action was taken by the police. Ultimately, on complaint Exhibit PK, the present case was registered against five persons, namely, Avdesh Sharma, Vipula, Kamni, Avinash and Hitesh Sharma. On completion of the investigation challan was presented. Copies of documents were supplied to all the accused persons, free of costs as envisaged under Section 207 Cr.P.C. When the case was posted for arguments on the point of charge, in the meantime accused Hitesh Sharma, husband of the complainant died and the proceedings against him were abated. On finding a prima facie case against all the remaining accused persons, charge under Sections 406, 498-A, 148 read with Sections 149, 324, read with Section 149, 316 read with Section 149 and 307 read with Section 149 IPC was framed against them, to which they pleaded not guilty and claimed trial. During trial of the case, another accused namely, Avinash Sharma also died and as such proceedings against him were also ordered to be dropped. In order to prove its case, the prosecution examined PW-1 Dr. Kamlesh Sharma, PW-2 Dr. Ashok Kumar Gupta, PW-3 Dr. Ashwani Bhatnagar, PW-4 Balkar Singh retired SI, PW-5 SI Om Parkash, PW-6 Constable Dharm Pal, PW-7 Suman – complainant, PW-8 SI Raj Pal, PW-9 Dharam Singh retired SI, PW-10 Suman Sharma complainant, PW-11 Phool Devi, PW-12 Tarun Sharma, PW13 Karam Singh, retired Inspector, PW-14 Inspector Ram Kishan and closed the prosecution evidence. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. and all the incriminating evidence was put to them, to which they denied and pleaded innocence. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. and all the incriminating evidence was put to them, to which they denied and pleaded innocence. The accused were called upon to lead their defence evidence and accused Avdesh Sharma himself appeared as DW-1 and closed the defence evidence. However, after appreciating the evidence, learned trial Court acquitted accused Vipula and Kamni of all the charges, whereas Avdesh Sharma, the present appellant was acquitted under Sections 498-A, 324, 307, 506, 316/34 IPC, but he was convicted under Sections 406 and 323 read with Section 34 IPC vide judgment and order dated 10.11.2003 passed by Sh. Harnam Singh Thakur, Additional Sessinos Judge, Yamuna Nagar and was sentenced to undergo imprisonment and fine as under:- u/s 323 IPC To undergo rigorous imprisonment for a period of 6 months and to pay a fine of Rs.500/-. In default of payment of fine to further undergo SI for a period of one month. u/s 406 IPC To undergo rigorous imprisonment for a period of 2 years and to pay a fine of Rs.1,000/-. In default of payment of fine to further undergo SI for a period of three months. Both the sentences were ordered to run concurrently. Feeling dissatisfied with the abovesaid judgment and order dated 10.11.2003, accused-appellant Avdesh Sharma has filed CRA No.S-2224 SB of 2003, whereas complainant – Suman has filed CRR No.354 of 2004 for convicting the accused Avdesh Sharma under Sections 307 and 316 IPC. Learned counsel for the appellant has submitted that the trial Court has convicted the appellant on assumption only and not on the basis of evidence available on the file. It is submitted that the law was set in motion by submitting an application Exhibit PK against the appellant and others. It is further submitted that according to the said application the complainant and Hitesh Sharma lived together as husband and wife at Yamuna Nagar and Jawalapur upto 18.4.1997. It is not the case of the prosecution that appellant also resided at Yamuna Nagar. So, Suman and Hitesh Sharma resided at Yamuna Nagar and for that period the appellant cannot be penalised. It is further submitted that there are general allegations that after marriage, family members of Hitesh Sharma started harassing, taunting and beating the complainant. Those general allegations cannot form the basis of conviction. So, Suman and Hitesh Sharma resided at Yamuna Nagar and for that period the appellant cannot be penalised. It is further submitted that there are general allegations that after marriage, family members of Hitesh Sharma started harassing, taunting and beating the complainant. Those general allegations cannot form the basis of conviction. It is further submitted that the specific allegation of beating has been attributed to Kamni and Vipula and not against the appellant. It is further submitted that both Kamni and Vipula have been acquitted by the trial Court by dis-believing the story of the prosecution regarding beatings. It is further submitted that in the said application Exhibit PK no specific entrustment of any dowry article has been attributed to the appellant. The specific allegations of entrustment are against Kamni and refusal to return the dowry articles were also against Kamni. Said Kamni has been acquitted by the trial Court. Even the trial Court has observed that prosecution story of going of Kamni and Vipula to Yamuna Nagar cannot be believed. The other observation made by the trial Court on assumption that male members might have gone to Yamuna Nagar on 17.3.1997. It is further submitted that although in the Court complainant has stated that Hitesh Sharma and Avinash caught hold her from arm and leg and Kamni and Vipula gave blow on her abdomen, but that fact is not mentioned in application Exhibit PK and complainant was duly confronted for that. Even in the Court, the specific injuries have been attributed to Hitesh Sharma and Kamni and not to the appellant. The appellant is employed in Electricity Board and was living separately from the complainant. There is no specific allegation of causing any injury against the appellant and no specific entrustment of any dowry article is there and as such the learned trial Court has wrongly convicted the appellant under Sections 323 and 406 IPC. It is further submitted that allegations of forcible abortion have been disbelieved by the trial Court. Even PW-1 Dr. Kamlesh Sharma has stated that it was a case of inevitable abortion. It is further submitted that there is not even a single evidence on the file to the effect that abortion has taken place due to injuries sustained by the complainant. Since the appellant was in service, so he was made an accused so that family may suffer the pinch. It is further submitted that there is not even a single evidence on the file to the effect that abortion has taken place due to injuries sustained by the complainant. Since the appellant was in service, so he was made an accused so that family may suffer the pinch. It is further submitted that Hitesh Sharma, brother of the appellant was fed up by the behaviour of the complainant and lodging false cases against him and he was forced to commit suicide by the complainant and her family members and case under Section 306 IPC has been registered against her and other family members. The untraced report was submitted in that case, but further investigation was ordered and the matter is still pending. So, it is prayed that appeal be accepted and judgment of the trial Court be set aside by acquitting the accused. On the other hand, counsel for the complainant has supported the judgment of the trial Court. He has submitted that injury report is on the file. Mere fact that in the application Exhibit PK there is no specific allegation of beatings and demand of dowry against the appellant, does not absolve him of the offence complained of. In fact the ingredients of offence under Sections 307, 313/316 IPC are also made out against the appellant beyond reasonable doubt and case be sent back to the trial Court for passing conviction order under Sections 307, 313/316 IPC against the appellant. I have given my thoughtful consideration to the rival submission made by both the sides and have also gone through the record of the case. The basis of the present FIR is the application Exhibit PK moved by the complainant on 4.7.1997. As per assertions made in the application marriage of the complainant had taken place with Hitesh Sharma on 15.1.1996 and dowry articles were given according to the capacity of her mother and after marriage, Hitesh Sharma and Suman resided at Yamuna Nagar for some time. There was no occasion for the appellant to harass the complainant during the said period. The complainant has further stated in the application Exhibit PK that after marriage, family members of her husband started harassing, taunting and beating the complainant for bringing less dowry. Again there is no specific act of beating or making demand against the appellant in that assertion. The complainant has further stated in the application Exhibit PK that after marriage, family members of her husband started harassing, taunting and beating the complainant for bringing less dowry. Again there is no specific act of beating or making demand against the appellant in that assertion. The complainant has further stated that after 18.4.1997 complainant returned to her in-laws from Yamuna Nagar and during that period she was harassed by her in-laws family. Specific allegation regarding harassment has been attributed to Kamni and Vipula and no specific attribution has been made against the appellant. The complainant has further stated that on 15.8.1996 the complainant was beaten mercilessly by the family members of her in-laws at Yamuna Nagar. Again name of the appellant has not been specifically mentioned regarding beatings. Again the complainant has mentioned in Exhibit PK that all dowry articles have been misused by Kamni and Hitesh Sharma and others. The name of the appellant is not specifically mentioned. She has further stated that dowry articles were taken away from the complainant and the same are with Kamni. Again name of the appellant is not mentioned. Learned trial Court has coined a strange story. Learned trial Court has observed that since the appellant was the elder brother of Hitesh Sharma and as such the unrecovered dowry articles may be with the appellant. It is not out of place to mention here that some of the dowry articles have been recovered from Hitesh Sharma and not from the appellant. In the FIR, the complainant has not raised even a little finger against the appellant for specific entrustment of dowry articles or embezzlement of the said dowry articles. Even in the Court, the complainant has not stated that dowry articles are entrusted to the appellant and the same are in his possession. The approach of the trial Court that since he is the elder brother and as such the dowry articles may be in his possession, is erroneous. It is settled law that in a criminal case the prosecution has to prove its case beyond reasonable doubt by producing legal evidence. The accused cannot be convicted on the basis of mere conjectures and surmises, but can be convicted only on the basis of legal evidence. It is settled law that in a criminal case the prosecution has to prove its case beyond reasonable doubt by producing legal evidence. The accused cannot be convicted on the basis of mere conjectures and surmises, but can be convicted only on the basis of legal evidence. Even counsel for the complainant has not pointed out any fact mentioned in application Exhibit PK vide which specific entrustment of dowry articles has been mentioned against the appellant and has also failed to point out that specific act of beating by the appellant has been mentioned in application Exhibit PK. Even while appearing as witness, the complainant has stated about specific entrustment of dowry articles to Kamni and specific act of beatings to Kamni, Hitesh Sharma and Vipula. No specific act of entrustment of dowry articles and beatings has been attributed to the appellant. The learned trial Court in respect of offence under Section 323 IPC observed that ladies may not accompanied the male members and as such the male members are responsible. This approach again is based upon conjectures and not on the basis of legal evidence. The learned trial Court after appraisal of the evidence disbelieved the statement of the complainant regarding entrustment of dowry articles to Kamni and Vipula and also giving of specific injury by Kamni and Vipula to the complainant. The appellant is stated to be employee of Punjab State Electricity Board. In case he is to make any demand, he would make demand from his own in-laws and not from the in-laws of his brother. It is not disputed during the course of arguments that FIR against complainant and her family members has been registered under Section 306 IPC for compelling Hitesh Sharma to commit suicide. It is stated to be still sub judice. So, I am of the considered view that in the absence of specific allegation of entrustment of dowry articles and specific allegation of beatings, the accused cannot be convicted in respect of offence under Sections 406 and 323 IPC. The approach of the trial Court convicting him for the said offence without any legal evidence cannot sustain the test of legal scrutiny. So far as assertion made by counsel for the complainant that offence under Sections 307 and 313/316 IPC is also made out against the appellant, is concerned, that submission is without any substance. The approach of the trial Court convicting him for the said offence without any legal evidence cannot sustain the test of legal scrutiny. So far as assertion made by counsel for the complainant that offence under Sections 307 and 313/316 IPC is also made out against the appellant, is concerned, that submission is without any substance. As discussed above, the prosecution has not been able to prove that appellant has given any injury to the complainant. Specific injuries have been attributed to Kamni, Hitesh Sharma and Vipula. Kamni and Vipula have been acquitted by the trial Court, whereas Hitesh Sharma died during the pendency of the case before the trial Court. It is not out of place to mention here that complainant has not challenged the acquittal order passed against Kamni and Vipula, not even in the revision petition, as both of them have not been arrayed as party in the revision petition. This Court in authority reported as Guljar Singh @ Guljar Mohammad and others vs. Hazran 2006 (2) RCR (Criminal) 625, has held that gift articles given to the relatives of husband at the time of marriage did not constitute Istridhan. Similar view was taken in authority reported as Anju Bala and others vs. State of Punjab and another 2006 (3) RCR (Criminal) 191. This Court in authority reported as Vijay Ghuman vs. Narinder Singh and another 2005 (2) RCR (Criminal) 837 has held that allegation that dowry articles entrusted to 5 persons is not a specific entrustment. In the present case, there is no allegation of specific entrustment to the appellant, in the application Exhibit PK also and also in the Court. So, in view of the above discussion, CRA S-2224 SB of 2003 stands accepted. The judgment and order of conviction stands set aside and the appellant stands acquitted by giving him benefit of doubt. So far as CRR No. 354 of 2004 is concerned, in view of the discussion made above, the same is meritless and stands dismissed. A copy of the judgment be sent to the trial Court for compliance.