Abhishek Sharma and Others vs State

Suresh Kait, J.

Crl.Rev.P.286/2011

Notice.

Learned APP accepts notice on behalf of the State.

With the consent of the parties, the Revision Petition is taken up for disposal.

The petitioner has assailed the order dated 22.02.2011 whereby the trial judge has framed charged against the accused persons u/s

498A/304B/34 IPC alternatively u/s 306/34 IPC against all the accused persons and apart from the above offence u/s 406 IPC against the

accused Kamlesh, the mother-in-law of the deceased. The petitioners pleaded not guilty and claimed trail.

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.

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:-

Sanju @ Sanjay Singh Sengar Vs. State of Madhya Pradesh,

Hira Lal Jain Vs. State 2000 VI AD (Delhi) 902

Ajit Singh Vs. State of NCT of Delhi 2009 AD (Delhi) 720

M.P. Lohia etc. Vs. State of West Bengal and Another,

Gangula Mohan Reddy Vs. State of Andhra Pradesh,

Ram Vs. State of NCT of Delhi 2010 V AD (Crl.) 664

State of Kerala Vs. Raneef

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 Nos 09718883554 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.

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.

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 Rs. 1,50,000/- was also given to Abhishek in presence of other accused on 24.03.2008.

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.

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 u/s 113 of the Evidence Act.

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 21/2 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.

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 State of Bihar Vs. Ramesh Singh, 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 Cri.LJ. 2248.

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.

Accordingly, the Crl.Rev.P.286/2011 is dismissed.

No order as to cost.

Crl.M.A.No.7486/2011

Dismissed as being infructuous.