Nitin Sharma and Others vs State of U.P. and Another

S.C. Agarwal, J.—Supplementary -affidavit filed on behalf of the revisionists is taken on record.

Vakalatnama filed by Sri Ajay Rajendra on behalf of the complainant is also taken on record.

This revision under Section'' 397/401. Cr. P.C. is preferred against the order dated 4.6.2011, passed by Additional Sessions Judge. Court No. 17, Meerut in S.T. No. 1017 of 2010 State v. Nitin Sharma and Others, under Sections 498A, 304B, I.P.C. and 3/4 of Dowry Prohibition Act, P.S. Daurala, district Meerut, whereby application for discharge u/s 227, Cr. P.C. filed on behalf of the accused-revisionists was rejected.

Heard Sri V.P. Srivastava, senior advocate assisted by Sri H. C. Mishra, learned counsel for the revisionists, learned A.G.A. for the State as well as Sri Ajay Rajendra, learned counsel for the complainant.

The facts are that the deceased Smt. Rakhi daughter of the complainant Jagat Bhushan Sharma was married on 15.1.2007 with revisionist No. 1 Nitin Sharma. F.I.R. was lodged on 8.2.2009 at 11 : 45 a.m. at P.S. Daurala by the complainant stating therein that accused Nitin Sharma, his brother Vinay Sharma and mother Laxmi Devi were not satisfied by the dowry and the Santro Car given at the time of marriage and soon after the marriage started harassing Rakhi on account of demand of Rs. 1 lac as dowry, and also started beating and harassing her. The complainant and his family members tried to pacify the accused persons, but they remained adamant. This fact was disclosed by Rakhi to her father many times on telephone. On 6.2.2009, Rakhi called her father on mobile and apprehended that her in-laws would kill her and that she had heard them plotting about the same. The complainant immediately sent his sons Manish and Vaibhav to bring back Rakhi from her sasural, but the accused persons misbehaved with them and refused to send Rakhi. Again at 9 : 00 p.m., Rakhi telephoned and apprehended her murder. In the night of 7/8.2.2009 at about 2 : 30 a.m., the complainant received information that Rakhi was ill. He went to the house of the accused and found that Rakhi had been murdered. On autopsy, cause of death was found to be asphyxia as a result of hanging.

The application for discharge was moved on behalf of the revisionists, which has been dismissed.

Sri Srivastava, learned counsel for the revisionists submits that there is no evidence or material on record to show that soon before her death the deceased was subjected to cruelty on account of demand of dowry and presumption u/s 113B of the Indian Evidence Act was not applicable in this case. The submission is that demand of dowry at the time of marriage and subsequent thereto may not be helpful to the prosecution, but for framing the charge u/s 304B, I.P.C, the prosecution must show that soon, before her death, the deceased was subjected to cruelty on account of demand of dowry. Learned counsel also referred to the narration in the F.I.R. as well as the statements of witnesses recorded u/s 161, Cr. P.C.

On the other hand, learned counsel for the complainant and learned A.G.A. submit that the deceased Smt. Rakhi died within seven years of her marriage under unnatural circumstances and after her marriage, she was continuously harassed by the accused-revisionists on account of demand of dowry regarding which she made complaints to her father many times on telephone. They further submit that at the stage of charge, only a prima facie case is to be seen.

In Hira Lal and Others Vs. State (Govt. of NCT) Delhi, the Apex Court has held that presumption as to dowry death u/s 113B of the Evidence Act operates only in case where prosecution proves that ''soon before death'', victim was subjected to cruelty / harassment and the expression ''soon before'' occurring in Section 113B of the Evidence Act and Section 304B, I.P.C. does not indicate any fixed period, but applies proximity test and stale incidents of cruelty are inconsequential.

Similar view was expressed by the Apex Court in Satvir Singh and Others v. State of Punjab XLIII 2001 ACC 912 : 2001 (3) ACR 2667 (SC); Suresh Kumar Singh v. State of U.P. 2010 (1) JIC 402 : 2009 (3) ACR 3253 (SC) and Balwant Singh and Another v. State of Punjab. 2005 (1) JIC 7 : 2005 (3) ACR 2719 (SC).

No doubt, the prosecution has to prove that soon before death, the victim was subjected to cruelty on account of demand of dowry, but the words ''soon before'' have not been defined in either the Evidence Act or in the Penal Code. ''Soon before'' does not mean only a few minutes before, but the incident must also not be very stale or years old.

In the instant case, the deceased was married with Nitin Sharma in the year 2007. There is sufficient material on record to show that before her death, she was continuously harassed by the accused-revisionists on account of demand of dowry. The incident took place in the night of 7/8.2.2009. As per the F.I.R., on 6.2.2009, many times the deceased complained to her father about ill-treatment meted out to her by the accused-revisionists. On 7.2.2009 also, the deceased complained to her father at about 9 : 00 p.m. that the accused persons might commit her murder. In these circumstances, the trial court came to the conclusion that there are sufficient grounds for framing charge under Sections 498A, 304B, I.P.C. and 3/4, Dowry Prohibition Act against the revisionists. At the stage of charge, the Court has to see whether a prima facie case for framing the charge is made out or not. A threadbare analysis of the material available on record is not required at the stage of charge. Even a strong suspicion is sufficient for the purposes of framing of the charge.

The decisions cited by learned counsel for the revisionists relate to the final disposal of the case. The prosecution is yet to lead evidence. It is apparent from the record that the deceased was continuously being harassed by the revisionists and she was apprehending her murder at the hands of the revisionists. It is also on record that even one or two days before the incident, the revisionists were not satisfied with the dowry given at the time of marriage and were harassing the deceased on account of demand of 1 lac in cash. In these circumstances, I am of the opinion that finding of the trial court that there are sufficient grounds for framing of the charge under Sections 498A, 304B, I.P.C. and 3/4, Dowry Prohibition Act is fully justified and does not call for any interference. Microscopic examination of the material available in the case diary is unwarranted at this stage.

In view of the aforesaid, I have come to the conclusion that the impugned order does not suffer from any illegality and does not require any interference by this Court.

The revision is devoid of merit and is accordingly dismissed.

However, it shall be open to the revisionists to raise the aforesaid plea at the time of final arguments after evidence.