Delhi High Court
Abhishek Sharma & Ors. vs State on 8 July, 2011
Author: Suresh Kait
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.REV.P. 286/2011
% Judgment delivered on:8th July, 2011
ABHISHEK SHARMA & ORS ..... Petitioners
Through: Mr.J.M.Dutta, Advocate.
versus
STATE ..... Respondent
Through: Mr.Arvind Kumar Gupta, APP for
the State.
W/SI Vipnesh, from P.S. Moti
Nagar.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be allowed to
see the judgment? YES
2. To be referred to Reporter or not? YES
3. Whether the judgment should be reported
in the Digest? YES
SURESH KAIT, J. (ORAL)
Crl.Rev.P.286/2011
1. Notice.
2. Learned APP accepts notice on behalf of the State.
3. With the consent of the parties, the Revision Petition is
taken up for disposal.
4. The petitioner has assailed the order dated 22.02.2011
whereby the trial judge has framed charged against the accused
persons under Section 498A/304B/34 IPC alternatively under
Section 306/34 IPC against all the accused persons and apart
from the above offence under Section 406 IPC against the
accused Kamlesh, the mother-in-law of the deceased. The
petitioners pleaded not guilty and claimed trail.
5. The learned counsel for the petitioner has raised an issue
that Section 304B and Section 306 cannot go together; therefore,
the trial Judge has wrongly framed charges.
6. He further submits that the prosecution could not decide
under which section either 306 or 304B of IPC the accused
persons be prosecuted. The learned counsel on this issue has
filed a compilation of judgments as under:-
1. [email protected] SanjaySingh Senger Vs. State of Madhya
Pradesh AIR 2002 SC 1998 37
2. Hira Lal Jain Vs. State 2000 VI AD (Delhi) 902
3. Ajit Singh Vs. State of NCT of Delhi 2009 AD (Delhi) 720
4. M.P.Lohia Vs. State of West Bengal 2005 Crl.L.J 1416
5. Gamgula Mohan Reddy Vs. State of Andhara Pradesh AIR
2010 SC 327
6. Ram Vs. State of NCT of Delhi 2010 V AD (Crl.) 664
7. State of Kerala Vs. Raneef I 2011 SLT 138
7. On asking which of the judgment is relevant qua the issue
raised, the learned counsel for the petitioner as no answer.
Further he submits that suicide note does not indicate any of the
allegations of dowry soon before the death of the deceased. I
have perused the suicide note from the record of the police file.
In the suicide note the deceased has mentioned about
conversation with Akanksha and Abhishek (husband of the
deceased) on their cell Nos09718883554 and 09810864540
respectively. The police has verified the phone calls from the
service provider and found that the deceased Priyanka had talked
to deceased on 09.01.2010 for 86 seconds and thereafter till the
death there was no conversation between the two. The accused
Abhishek husband of the deceased had a talk even on
13.01.2010. Since there was no talk with Akanksha on the day of
death of deceased i.e. 13.01.2010, therefore as submitted by the
learned counsel for the State that Akanksha has not been made
accused.
8. There is no evidence against Akanksha but sufficient
evidences are there against the accused persons, therefore, the
learned trial Judge has come to the conclusion on the basis that
as per the statement of the complainant the demand of Car, LCD
TV as well as Cash was made by the accused persons time to
time by the deceased and her parents. The deceased Priyanka
left the suicide note wherein she clearly alleged that she has
been maltreated and harassed by all accused persons and one
Akanksha. The cruelty and harassment was more increased after
born of female child as the accused persons were not happy with
the pretext that they had desired to have a male child. Accused
Abhishek also used to remain away in the night from her house
without any information and used to come in drunken condition.
He was also having illicit relations with one Akanksha.
9. On 02.011.2009 the accused Abhishek showed a blue film to
the deceased wherein accused Abhishek was doing sex with some
unknown lady. After seeing the said film deceased was shocked
and also informed to her in laws but none has supported her
version. The copy of the CD is also on record. A sum of
`1,50,000/- was also given to Abhishek in presence of other
accused on 24.03.2008.
10. The complaint has also made statement before the
Executive Magistrate and made specific allegations of
harassment, cruelty and demand of dowry against the accused
persons.
11. The terms 'soon before' which is required to be considered
under specific circumstances of each case and no straight jacket
formula can be laid down by fixing any time limit. The expression
is pregnant with the idea of proximity test. The determinations of
the period which can come within the term 'soon before' is left to
the determined by the courts, depending upon the facts and
circumstances of each case. The expression would normally
imply that the interval should not be much between the cruelty or
harassment concerned and the death in question. There must be
existence of a proximate and live link. It would be hazardous to
indicate any fixed period, and that brings in the importance of
proximate test both for the proof of an offence of dowry death as
well as for raising a presumption under Section 113 of the
Evidence Act.
12. On these observations the learned trial Judge has come to
the conclusion and further observed that similarly in the instant
case the deceased was living with her parents for a period of 2 ½
months even though there are sufficient evidence to show that
that there is nexus between the accused persons and the
deceased to have connection for cruelty and harassment by
passing a sarcastic remarks as well as for illegal demand.
13. The existence of a prima facie case may be found even on
the basis of strong suspicion against an accused. The law was
settled way back in 1977 in a case of AIR 1977 SC 2018 Ramesh
Singh Vs. State of Bihar SC that the standard of test and
judgment which is to be finally after and before reaching a finding
regarding the guilty or otherwise of the accused is not exactly to
be applied at the stage of charge hearing. The same view was
taken in a case of Som Nath Thapa Vs. CBI 1996 Cr.L.J. 2248.
14. I find no infirmity in the order passed by the learned trial
Judge while framing the charge, therefore, I am not inclined to
interfere with the order.
15. Accordingly, the Crl.Rev.P.286/2011 is dismissed.
16. No order as to cost.
Crl.M.A.No.7486/2011
Dismissed as being infructuous.
SURESH KAIT, J
JULY 08, 2011
Mr/RS
