Research › Search › Judgment

Allahabad High Court · body

2022 DIGILAW 2049 (ALL)

Deepak Sharma v. State of U. P.

2022-12-23

RAM MANOHAR NARAYAN MISHRA

body2022
JUDGMENT : 1. Heard Sri Mohit Singh, learned counsel for the appellant and learned A.G.A. for the State and perused the lower court record as well as written submissions filed by learned counsel for the appellant. 2. Present appeal is directed against the judgment and order dated 17.1.2019 passed by Additional Session Judge, Court No. 13, Moradabad in S.T. No. 1226 of 2015, arising out of Case Crime No. 191-C of 2015, P.S. Chandauli, District Sambhal, whereby appellant Deepak Sharma has been convicted for the offence under Section 498-A rigorous imprisonment for two years with fine of Rs. 5,000/-with default stipulation, for charge under Section 306 IPC seven years rigorous imprisonment and Rs. 20,000/-fine with default stipulation, for charge under Section 4 of D.P. Act one year rigorous imprisonment and Rs. 5,000/-fine with default stipulation. All the sentences were directed to run concurrently. It is also provided that total fine recovered from the accused, half of the amount of fine shall be payable to the informant (father of the deceased), as compensation in terms of Section 357 Cr.P.C.. 3. Briefly, relevant facts as noted by the trial court for the disposal of the present appeal are reproduced as under. 4. Informant Sudhir Sharma S/o Girish Chandra Sharma moved an application under Section 156(3) Cr.P.C. before learned magistrate for registration of a case and investigation, whereupon by order of court, an F.I.R. was lodged on 24.4.2015 at 11:30 hours against accused-appellant Deepak Sharma and others at P.S. Chandauli. According to F.I.R. version, informant had married his daughter to accused-appellant Deepak Sharma on 16.1.2005 according to Hindu rituals and spent Rs. 2,50,000/-cash and Rs. 3,00,000/-in kind in the marriage. The husband and in-laws of her daughter began demanding further dowry through his daughter Kanchan Sharma and on non-fulfillment of their demand, they used to torture her and engaged in mar-peet with her. She informed these things to her parents through letters. On 3.12.2013 at around 9:36 hours (night) informant tried to communicate his daughter but her phone was reporting switched off. On 4.12.2013 at around 12:10 hours in noon, father-in-law of his daughter informed the informant and his son Gaurav Sutriya that Kanchan was suffering from headache and thereupon informant and his son rushed to the place of her in-laws and found that she was lying dead there. Her in-laws were in hurry to cremate her. On 4.12.2013 at around 12:10 hours in noon, father-in-law of his daughter informed the informant and his son Gaurav Sutriya that Kanchan was suffering from headache and thereupon informant and his son rushed to the place of her in-laws and found that she was lying dead there. Her in-laws were in hurry to cremate her. Accused-persons Deepak Sharma (husband), Shivom Sharma (father-in-law), Nisha Rani (mother-in-law) and Sanchit Sharma @ Bittu (brother-in-law) killed his daughter conjointly due to non-fulfillment of demand of Rs. 1,00,000/-as dowry. F.I.R. was lodged under Section 498-A, 302 IPC and G.D. entry was made there of which carbon copy is filed as Ext. Ka-11 on record, however after investigation charge sheets were filed for offence under Section 306/498-A IPC and ¾ D.P. Act against accused persons. 5. Investigating officer carried out investigation in the offencee, prepared site plan as Ext. Ka-22, recorded statements of witnesses. Inquest of dead body of deceased was conducted by S.I. Ashok Kumar which was proved by PW-6 Smt. Santosh Bishnoi (S.I. Mahila Cell) due to his retirement which is marked as Ext. Ka-12. PW-3 Dr. Vijay Singh conducted post-mortem examination of the dead body of deceased and prepared post-mortem report, which is proved in evidence during trial and marked as Ext. Ka-9. Co-accused Smt. Nisha Rani (mother-in-law) died during investigation and therefore she was not charge sheeted. 6. Investigating Officer submitted charge sheet after investigation against accused Deepak Sharma (husband of the deceased), Sanchit Sharma (brother-in-law of the deceased), under Sections 498-A, 306 IPC and Section 3/4 D.P. Act. 7. Learned trial court framed charge under Section 498-A IPC and 306 IPC and Section 4 of D.P. Act against accused Deepak Sharma and Sanchit Sharma and alternative charge under Section 302 IPC was also framed against both accused persons in the case in their respective sessions trial i.e. S.T. No. 1226 of 2015 and 793 of 2016. Accused Sanchit Sharma acquitted of all charges and accused Deepak Sharma has been acquitted of alternative charge under Section 302 IPC and convicted for remaining charges. 8. In session trial, prosecution examined PW-1 Sudhir Sharma (informant), PW-2 Gaurav Sutriya as witnesses of fact, PW-3 Dr. Vijay Singh, who conducted post-mortem of the deceased, PW-4 Jhajhan Lal, HCP who has proved the chick F.I.R. lodged on directions of learned C.J.M. under Section 156(3) Cr.P.C. as Ext. 8. In session trial, prosecution examined PW-1 Sudhir Sharma (informant), PW-2 Gaurav Sutriya as witnesses of fact, PW-3 Dr. Vijay Singh, who conducted post-mortem of the deceased, PW-4 Jhajhan Lal, HCP who has proved the chick F.I.R. lodged on directions of learned C.J.M. under Section 156(3) Cr.P.C. as Ext. Ka-10 and also proved G.D. entries of registration of case at P.S. concerned as Ext. Ka-11, PW-5 Shriom Sharma is witness of fact, who is neighbour of accused persons. PW-7 Dr. Manish Malhotra has stated fact that deceased was produced before him for treatment on the date of incident on 4.12.2013 at 12:30 hours; she was referred by him for CT Scan as her condition was poor; she was again produced before him at around 2:00 pm after CT scan but her blood pressure and pulse were not realised and he referred her to higher centre but in the process of shifting her in ambulance, she was found to have died. In his opinion, she died due to cardiac arrest and obstruction in breathing. He proved medical certificate of the deceased as Ext. Ka-19 and her blood test and C.T. Scan report as Ext. Ka20 and 21. PW-8 S.I. Shamshad Ali (Investigating Officer) has proved proceedings of investigation, site plan as Ext. Ka-22, charge sheet as Ext. Ka-24 and Ka-24. He has also proved viscera examination report of deceased submitted by FSL, Agra as Et. Ka-23 in which it is stated that in viscera of deceased, carbamate insecticide poison was found. 9. Statements of accused was recorded under Section 313 Cr.P.C. after conclusion of prosecution evidence in which it is stated that witnesses have testified against him due to enmity, however, he has not taken any specific defense case therein. At the stage of defense evidence, accused Deepak Sharma himself appeared as DW-1 and stated that his wife was suffering from depression. He never practised cruelty against his wife nor ever made any demand of dowry. He was living with his wife and children happily as out of the wedlock, two children were born namely Roshni and Chirag, who were taken by father-in-law after death of his wife with mutual understanding. He never practised cruelty against his wife nor ever made any demand of dowry. He was living with his wife and children happily as out of the wedlock, two children were born namely Roshni and Chirag, who were taken by father-in-law after death of his wife with mutual understanding. On the date of incident, birthday of his daughter Roshni fell and for that reason he came to his home Chandausi at 7:00 AM after obtaining leave from his job and celebrations of birthday were on, however, his wife Kanchan felt headache and her conditions deteriorated. He took her to Dr. Manish Malhotra at Chandausi, however, she was conscious. Her pathology examination and CT Scan was conducted on directions of Dr. Manish Malhotra but thereafter her condition further deteriorated and when she was being kept on ambulance for moving her to higher centre, she died at around 2:30 PM. 10. Learned trial court after appreciation of evidence on record acquitted Sanchit Sharma (father-in-law) of charges and convicted and sentenced the appellant as aforesaid. 11. Feeling aggrieved by the impugned judgment and order, appellant preferred present appeal under Section 374 Cr.P.C. 12. Learned counsel for the appellant submits that F.I.R. in the present case lodged belatedly after filing an application under Section 156(3) Cr.P.C. bearing date 19.2.2015 which implies that even application under Section 156(3) Cr.P.C. was filed by the informant after more than one month of the incident which is an afterthought and gives ample scope in deliberations, embellishment and concoction. Co-accused against whom similar allegations have been made in F.I.R. as well as in statements of witnesses of fact, who is brother of the appellant, has been acquitted by learned trial court on the basis of same evidence. No complaint regarding demand of dowry or ill treatment of deceased lodged for eight years of marriage. Accused-appellant is held in jail custody from the stage of investigation since 2.8.2015 and from report of Superintendent of Jail concerned, which is filed on record, he has suffered five years five months seven days actual punishment till 5.10.2022, thus he has suffered more than five years seven months actual imprisonment out of seven years imprisonment awarded to him in main offence under Section 306 IPC. According to the judgment under appeal, he has to suffer maximum period of imprisonment up to seven years imprisonment which includes period of remission also. According to the judgment under appeal, he has to suffer maximum period of imprisonment up to seven years imprisonment which includes period of remission also. Learned trial court did not appreciate the evidence available on record and wrongly convicted the appellant. Learned trial court did not pay heed to the fact that there was no motive on the part of the appellant to abet the deceased for committing suicide. The prosecution witnesses have deposed against the appellant under the influence of the informant. The sentence awarded to the appellant is excessive and stringent in the eye of law. Appellant has not committed any offence whatsoever and has been falsely implicated in the case at the behest of the informant. Informant has filed a case with ulterior motive through application under Section 156(3) Cr.P.C. Learned trial court has placed reliance on inland letters allegedly sent by the deceased to her mother from her matrimonial home, without the same being duly proved by expert. Marriage of the deceased and appellant took place eight years back of the date of incident and this inconceivable that demand of dowry of Rs. 1,00,000/-will be made and persist for so long period by the appellant and his family members. The deceased was possessed of mobile phone, therefore, there was no occasion for her to communicate with her parents by letters. No date has been mentioned on inland letters propounded by the letters which is used against the appellant. There is no direct or circumstantial evidence against appellant in support of the charge of abatement to commit suicide by the deceased. PW-5 Shriom Sharma who has been examined by prosecution as independent witness has not supported the allegations against appellant in his cross-examination. 13. Per contra, learned A.G.A. countered the statements of learned counsel for the appellant and submitted that there is no legal or factual error in impugned judgment passed by learned trial court which is based on evidence on record and all the evidence and material on record has been duly discussed and the arguments of learned counsel for the parties are duly addressed therein. There is no infirmity in the judgment under appeal and thus, it requires no interference in present appeal and same is liable to be affirmed in totality. 14. There is no infirmity in the judgment under appeal and thus, it requires no interference in present appeal and same is liable to be affirmed in totality. 14. I have gone through the case of prosecution and evidence on record thoroughly and examined the judgment under appeal in the light of grounds taken in appeal memo as well as statements made by learned counsel for the appellant. 15. PW-1 Sudhir Sharma (father of the deceased) has stated in his sworn testimony that marriage of his deceased daughter Kanchan and accused Deepak Sharma was solemnized on 16.1.2005 and stated same fact, as mentioned in application under Section 156(3) Cr.P.C. moved by him for registration of case and investigation which found basis for lodging of F.I.R. Even PW-5, who is neighbour of the accused persons, has stated that Deepak Sharma was married with deceased Kanchan in the year 2005. 16. Section 498-A IPC provides as under:- “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 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.” 17. Similarly Section 306 IPC provides as under:- “Abetment of suicide.-If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” 18. Similarly Section 306 IPC provides as under:- “Abetment of suicide.-If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” 18. Section 4 of D.P. Act provides that if any person demands, directly or indirectly from the parents or other relatives or guardian of a bride or bride groom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but it may extend to two years and with fine which may extend to ten thousand. Provided that the court may, for adequate and special reasons to mention in the judgment, impose a sentence of imprisonment for a term of less than six months. 19. In present case from statement of PW-5 Shriom Sharma, PW-7 Dr. Manish Malhotra and DW-1 Deepak Sharma (accused), this fact stands proved that on 4.12.2013 deceased Kanchan Sharma got suddenly ill and she was produced before PW-7 Dr. Manish Malhotra at around 12:30 hours in noon by her in-laws. She was suffering convulsions. Her blood pressure was low and Dr. has referred her for her CT Scan and pathological examination. Deceased was brought back to doctor after CT Scan at around 2:00 PM but doctor found that her blood pressure and pulse were missing. She was referred to higher centre but when he was shifting to ambulance, it was found that she died. Dr. who treated the deceased has stated that she died due to respiratory arrest and impediment in breathing. Dr. has also stated that if a person is under influence of poison, he/she may suffer respiratory problems and he or she may die due to respiratory arrest. In the blood test report, TLC was found abnormal and such TLC reflects any infection in the body which is marked as Ext. Ka-20. Dr. has also stated that in CT Scan report of deceased Kanchan, swelling was found in membrane of her brain for which MRI was suggested. CT Scan report is marked as Ext. Ka-21. Dr. has further stated that when the patient was brought before him, she was in some what position to speak but she had not told him that she had been administered poison by anyone. CT Scan report is marked as Ext. Ka-21. Dr. has further stated that when the patient was brought before him, she was in some what position to speak but she had not told him that she had been administered poison by anyone. She had also not told that she had herself consumed poison. She only told that she was suffering from acute headache and vomiting. No smell of poison was emerging from her clothes. Dr. has admitted on defense suggestion that as TLC of the patient was increased, it shows a general infection and TLC increases due to long illness. He has also stated that husband and in-laws of patient of the deceased were present there throughout. They had told him that she remained ill, often and was weak. He cannot confirm any symptom of poison in the body of deceased. He had referred her to higher centre. In case of cardiac arrest or any other infection, swelling occurs on membrane of brain. 20. PW-6 S.I. Smt. Santosh Bishnoi had deposed that she was present along with S.I. Ashok Kumar who conducted an inquest of the deceased at the time of inquest proceeding on 5.12.2013. She was at that time HCP and she had inspected dead body of the deceased. No external injury or symptoms of poison appeared on dead body. No froth or saliva appeared to have came out from her mouth. 21. PW-3 Dr. Vijay Singh had conduced post-mortem examination of dead body of deceased and has stated that frothy secretion was present in windpipe. Post-mortem examination was conducted on 5.10.2013 and time of death was found to be one day back in post-mortem. In internal examination, 50 ml concentrated liquid was found. As cause of death could not be ascertained, viscera was preserved. 22. In cross-examination, this witness has stated that in stomach of the deceased, 50 ml concentrated liquid was present which was not meal. The carbamate insecticide poison was found in viscera of the deceased which used in crops and vegetables to save it from insects. He cannot tell what is vital dose of this poison. No internal or external injury was found on person of the deceased. 23. PW-1 and PW-2, who are witnesses of fact, have stated that husband and in-laws of the deceased were demanding Rs. He cannot tell what is vital dose of this poison. No internal or external injury was found on person of the deceased. 23. PW-1 and PW-2, who are witnesses of fact, have stated that husband and in-laws of the deceased were demanding Rs. 1,00,000/-for managing a job for accused Deepak Sharma in health department where his mother Smt. Nisha Rani (then co-accused) was employed. Witnesses had feigned ignorance on defense suggestion that deceased was operating a beauty parlor in a room at her matrimonial home in the name of Roshni Beauty Parlour. 24. PW-5 has also stated that appellant Deepak Sharma was engaged in some private job and whenever he would come back to home, there was altercation with his wife Kanchan. The deceased used to tell him that these people would disturb her and did not provide money for expenses and would ask her to bring money from her parental home. In night of 3.12.2013, her condition became bad and froth was emanating from her mouth. There was panic in the home of accused. Next day, he came to know that she was produced before Dr. Manish Malhotra at Chandausi and subsequently died. People from her parental home reached in the evening, however, in cross-examination, he stated that deceased was operating a beauty parlour in some portion of home and was suffering from depression as she often remained sick. Her parents were present in her cremation. Her in-laws never demanded any dowry in his presence. The deceased was living in upper portion of the house which consisted of a kitchen and a bathroom. 25. The defense side has taken a case that deceased was suffering from some sickness and her condition became serious on the date of incident suddenly after headache and giddiness and died on the same day, whereas in viscera examination of the deceased Kanchan, a clear cut finding has been given by FSL Agra, which is admissible in evidence under Section 293 Cr.P.C. being report of a chemical examiner to Government, which clearly states that carbamate insecticide poison was found and there is no reason to disbelieve this report. No medical papers prior to the incident have been filed in support of the contention that she was suffering from some illness or lying in depression due to illness. 26. No medical papers prior to the incident have been filed in support of the contention that she was suffering from some illness or lying in depression due to illness. 26. PW-1 has filed two inland letters and one barong letter posted by the deceased in the name of address of her mother through paper no. 15/3 and he had identified the writing of his daughter, the deceased which is marked as Ext. Ka-3, Ka-4 and Ka-5, although dates have not been mentioned by the writer of the letter but in one letter the endorsement of postal department is made on 2.2.2009. All the three letters were addressed to her mother Smt. Vimlesh Sharma on address of dairy shop of her father. In these letters, she had stated that her in-laws were demanding Rs. 1,00,000/-for managing a job in the department of her mother-in-law from her father and on one occasion, she was pushed by her mother-in-law from staircase and even thereafter she was hit by kicks on her stomach by her mother-in-law. She was not permitted by her father-in-law to use washing machine. She was warned by four accused persons to refrain from making any complaint to her parents otherwise she will be killed during treatment. She has also stated that her husband was also forcing her to bring Rs. 1,00,000/-from her father so that a job could be managed for him. Her mobile phone was not recharged by accused-persons and for that reason, she was unable to speak to her parents by mobile phone. No expert opinion had been obtained about the writing of the deceased on these letters but letters have been sent through postal agency which is a Government machinery. 27. Section 114(e) of Evidence Act provides that the court may presume that judicial and official acts have been regularly performed. There is nothing on these letters (two inland and one barong) to raise any suspicion on their authenticity. No date has been mentioned in these letters is not a ground to disbelieve it’s genuineness. The letters have been produced from proper custody and this fact has come in evidence that he had supplied the photocopies of these papers to investigating agency and subsequently filed the original before the court. 28. No date has been mentioned in these letters is not a ground to disbelieve it’s genuineness. The letters have been produced from proper custody and this fact has come in evidence that he had supplied the photocopies of these papers to investigating agency and subsequently filed the original before the court. 28. PW-8 Investigating Officer has also stated in his evidence that photocopies of these letters were provided by the informant along with his affidavit during investigation and the affidavit was verified by him, however, he did not get these letters examined by finger print expert. He had also not verified as to place from which these letters were posted. 29. If any laxity has been made regarding non-verification of these letters during investigation, for that investigating officer is accountable and not the de-facto complainant. He did whatever he could, with regard to these letters. He had supplied it’s photocopies to investigating officer as affidavit during investigation. He filed the originals during trial before the court and proved the writing of deceased on these letters as her father, who is supposed to be acquainted with her writing and signature, therefore, there is nothing contrary to law on the part of the learned trial court to have placed reliance on these letters. 30. From perusal and analysis of evidence on record, it appears that conduct of accused-appellant was such that it amounts to abetment of commission of suicide by the deceased, who happened to be wife of the accused-appellant, although, there is no direct evidence of abetment against the appellant but on the basis of evidence of father and brother of the deceased as well as contents of letters sent by the deceased to her mother, this fact is proved beyond reasonable that she was subjected to cruelty for non-fulfillment of demand of Rs. 1,00,000/-by her husband and in-laws and for that reason, conduct of appellant amounted to abatement of suicide which was committed by the deceased, thus, I do not find any factual or legal error in appreciation of evidence in recording conviction of appellant for charges under Section 306 and 498-A IPC and Section 4 of D.P. Act. 1,00,000/-by her husband and in-laws and for that reason, conduct of appellant amounted to abatement of suicide which was committed by the deceased, thus, I do not find any factual or legal error in appreciation of evidence in recording conviction of appellant for charges under Section 306 and 498-A IPC and Section 4 of D.P. Act. However, keeping in view the fact that appellant is in jail since the stage of investigation and he has suffered around five years seven months actual imprisonment so far (without remission), the period of sentence of imprisonment is liable to be reduced to period undergone in the light of totality and facts and circumstances of the case, therefore, the verdict of conviction of appellant for charge under Section 306, 498-A I.P.C. and Section 4 of D.P. Act is affirmed in the light of above discussion. The substantive sentence awarded in judgment under appeal is reduced to period already undergone. Appellant will be released from custody on payment of fine awarded in the judgment or sufferance of punishment awarded as default stipulation, as the case may be. 31. Criminal appeal stands disposed of in the manner. 32. Let a copy of this order be sent to the jail concerned for compliance through the court concerned. Court concerned shall ensure compliance of this order in accordance with law. 33. Let lower court record be sent back to the court concerned for further action.