STATE vs VIJAY KALYAN JHA & ANR.

2023-10-10 Information

$~27
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: October 10, 2023
+ CRL.A. 543/2023
STATE ….. Appellant
Through: Mr. Tarang Srivastava, APP for State with Insp. Sudhir Kumar, PS Model Town.

Versus

VIJAY KALYAN JHA ….. Respondents
Through: Mr. Mayank Aggarwal & Mr. Pradeep Kr. Aggarwal, Advocates with respondent in person.

CORAM:
HON’BLE MR. JUSTICE SURESH KUMAR KAIT
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T (oral)
CRL.M.A. 26025/2023 (Exemption)
1. Allowed, subject to all just exceptions.
2. The application is disposed of.
CRL.M.A. 26024/2023 (seeking recall of order dated 10.7.2023, filed by the respondent)

3. The present Application under Section 482 of the Code of Criminal Procedure, 1973 has been filed on behalf of the applicant/respondent seeking recall of Order dated 10.07.2023 passed by this Court.
4. After some arguments, learned counsel for the applicant/respondent seeks leave to withdraw the present application.
5. Leave granted.
6. Accordingly, the present application is dismissed as withdrawn.
CRL.A. 543/2023
7. Learned Additional Public Prosecutor appearing on behalf of the State has pointed out that due to inadvertent typographical error in Order dated 10.07.2023, the Registry was directed to re-number the Criminal Leave Petition bearing No. 365/2022 seeking leave to Appeal against the Judgment dated 29.10.2021 passed by the learned Additional Sessions Judge, North West District, Rohini Courts, New Delhi, however, the said Criminal Leave Petition was not allowed.
8. Accordingly, we hereby modify the Order dated 10.07.2023 to the extent that CRL.A. 543/2023 be restored to its original number i.e., Criminal Leave Petition bearing No. 365/2022.
CRL.L.P. 365/2022 (upon restoration of Crl.A.543/2023)
9. Criminal leave to Appeal has been sought by the State against the Judgment dated 29.10.2021 vide which the respondent has been acquitted for the offences under Sections 498A/304B IPC, in the alternative, for the offence under Section 302 IPC.
10. The case of the prosecution is that the deceased Abha Jha got married to the accused/respondent on 13.05.2003 at Arya Samaj Mandir, Yamuna Bazar, Delhi and subsequently, the families got them married on 28.01.2007 at Begu Sarai, Bihar. After the marriage, both were residing in a rented accommodation at Gujranwala Town Part I, Delhi. On 03.05.2010, vide DD No. 31A information was received, at 7 PM at Police Station Model Town, that the wife of the accused, Abha Jha, has committed suicide by hanging herself with a chunni around her neck at B-115, First Floor, Gujrawalan Town Part I, Delhi. Since she had committed suicide within seven years of marriage, proceedings were initiated by the concerned SDM who recorded the statements of family, friends and relatives of the deceased. The post-mortem of the deceased was conducted and the FIR was registered on 21.05.2010 under Sections 498A/304B/406 IPC. The respondent/husband was arrested and on completion of investigation, Charge Sheet was filed in the Court.
11. The charges under Sections 498A/304B IPC and in the alternative, under Section 302 IPC were framed against the respondent on 04.03.2011.
12. The prosecution in support of its case, examined 25 witnesses, most material being PW1 Dr.V.K.Jha who has conducted post-mortem vide report Ex.PW1/A and had opined that cause of death was hanging. The other material witnesses were PW2 Pradeep Baijal, SDM, Model Town who has recorded statements of the material witnesses; PW3 Reshma, PW5 Parmod Kumar, landlord of the tenanted premises, PW7 Sangeeta Gaur, friend of the deceased, PW8 Hari Kumar, PW9 Tanushree Verma, friend of the deceased, PW10 Sangeeta, a neighbour and PW11 Amita Madan, who deposed that the relationship between the respondent and his wife were not cordial. PW16 Gauri Shankar Jha, the grandfather of the deceased had given his statement dated 07.05.2010 to the SDM and had deposed that the respondent had been pressurizing the deceased to purchase a new house in Greater Noida for him where he was working as he did not want to take any loan from the bank. The tensions developed in the matrimonial house to the demand of a flat. PW18 Ramkishan is the Driver of the neighbour of the deceased who deposed that on the day of incident, he heard a noise and the door of the house of the deceased could not be opened. They forced open the door and found the deceased hanging from the fan in the room.
13. PW6 Gautam Puri deposed that he was with the respondent/husband on the day of incident. PW14/19 Abhishek Gupta also deposed that on 03.05.2010, he had been with the respondent and on the same day, he later came to know that the wife of the respondent has committed suicide. PW22 Dr.Manish Jha, the brother of the deceased had also deposed that one week before the incident, he called her and she was crying on phone and told him that she would call him later. After 2-3 days, he again called her up and on phone, she was not behaving normal. Later, he came to know that she committed suicide.
14. After completion of prosecution evidence, statement of the respondent/husband was recorded under Section 313 CrPC wherein he pleaded his innocence. He examined himself as DW2. He also examined five other witnesses in support of his case.
15. The learned ASJ observed that the expression of cruelty entailed in Section 498A of IPC, 1860 takes within its ambit mental cruelty as well as the physical torture of the woman. However, for attracting the provisions of Section 304B IPC, the cruelty and harassment should be in furtherance of unlawful demand referable to marriage. Therefore, the prosecution is required to establish existence of proximate and live link between the dowry death and cruelty and harassment for demand of dowry by the husband or his relatives.
16. The cause of death as per the post-mortem report and the subsequent opinion of PW1 Dr.V.K.Jha was asphyxia as a result of ligature pressure over neck structures produced by ante-mortem ligature hanging. The first ingredient was thus proved that the unnatural death of the deceased happened within a period of seven years of the marriage.
17. The other limb which was required to be proved was that the deceased was subjected to cruelty/harassment in connection with the demand of dowry soon before her death. The only prosecution witness examined to prove this aspect was PW16 Gauri Shankar Jha, grandfather of the deceased. He deposed that the deceased had disclosed to him on 11.04.2010 when she had visited him at the house of his son Ajit Jha along with his brothers Manish and Chandan that the respondent had made a demand for flat. However, his testimony was not corroborated by PW22 Manish. Additionally, though PW-16 Gauri Shankar has deposed that he had asked his son Ajit Jha to carry out renovations in their Greater Noida House to meet the demand of the accused, neither Ajit Jha nor any other witness was examined to corroborate the same. Moreover, in the initial statement of the father of the deceased dated 04.05.2010 and subsequent statement dated 06.05.2010, no allegations of dowry demand or of flat was made and this allegation featured for the first time in the statement of Sh. Gauri Shankar Jha recorded by the SDM on 07.05.2010. Thus, it was concluded by the learned ASJ that the prosecution was unable to prove any demand of flat made by the respondent.
18. Likewise, PW21 Dr.Ashok Kumar Jha, father of the deceased had deposed that he was told by his younger daughter, Anshu about the behaviour of the respondent. However, his testimony was merely hear-say as the material witness Anshu was not examined. It was thus, concluded by the learned ASJ that the prosecution was unable to prove the charges under Sections 498A/304B and in the alternative, under Section 302 IPC, consequently the respondent was acquitted.
19. The main ground for seeking leave to Appeal agitated by the learned APP is that there were three bruises noticed in the post-mortem report Ex.PW1/A i.e. on outer aspect of right elbow, right scapular region and back of chest in the middle. Dr. V.K. Jha (PW-1), who prepared the post mortem report, had explained in his opinion that some bruises may occur in peri-mortem period due to mishandling, untying the knot or in transportation. Though the Doctor had deposed that these injuries could have been caused while handling body but in the post-mortem report, he had specifically stated that these injuries were ante-mortem in nature. Therefore, foul play in the hanging of the deceased could not be ruled out. Hence, leave was sought to Appeal against the acquittal of the respondent.
20. Submissions heard and record perused.
21. The learned ASJ has considered the testimony of all the witnesses but has rightly concluded that the testimony of none of the witnesses established that there were any dowry demands or harassment on account of dowry or that the deceased was subjected to cruelty connected with the dowry. In this context, it cannot be overlooked that the deceased and the respondent got married on 13.05.2003 at Arya Samaj Mandir when the family members had not joined their wedding. After about 4 years i.e. on 28.01.2007, their marriage was performed by the family members at Begu Sarai, Bihar. They throughout had been residing in the rented premises at Gujanwala Town Part I, Delhi.
22. The other important aspect was whether there was any foul play in the death of the deceased by hanging. There emerges a major contradiction in the MLC and the Post Mortem Report with respect to the external injuries sustained. The initial MLC mentions that no external injuries were found on the body of the deceased. PW1 Dr.V.K.Jha in the Post-Mortem Report, clearly opined that the death was caused due to asphyxia as a result of ligature pressure over neck structure produced by ante-mortem ligature hanging and also mentioned the three external injuries on the body of the deceased which were stated to be ante-mortem. PW1 Dr.V.K. Jha was extensively cross examined in regard to the three bruises injuries which have been earlier opined by him to be ante-mortem. During the further cross-examination, he explained that these injuries were peri-mortem. He had given his subsequent opinion Ex.PW1/C dated 14.08.2010 explaining that the peri-mortem injuries are those which are sustained just before death or during dying process. He explained that such injuries were not eluted immediately and deep injuries take couple of hours to show, and therefore, injuries may not be visible to Doctor conducting MLC. He further admitted that the deep injuries may also surface within 3-4 hours. Though in his initial statement, he opined that these injuries could not be ruled out to be ante mortem, but in his subsequent opinion, he had explained that these were peri-mortem in nature and caused essentially due to hanging of the body or its handling.
23. The nature of injuries are bruises present on outer aspect of right elbow, right scapular region and rail road pattern bruise on back of chest in the middle. Considering the nature of injuries and the opinion of PW1 Dr.V.K.Jha that these injuries could be peri-mortem, no doubt is created that there was any foul play in the hanging of the deceased, especially when it has been proved by PW6 and PW14/19 that the respondent/husband was throughout with them on the day of incident.
24. We find that the learned ASJ has given cogent reasons, after due appreciation of entire evidence, for concluding that the prosecution was not able to prove the offences under Sections 498A/304B IPC and in the alternative, under Section 302 IPC. We find no ground for grant of leave to Appeal, which is hereby dismissed.
25. The pending applications, if any, also stand disposed of.

(SURESH KUMAR KAIT)
JUDGE

(NEENA BANSAL KRISHNA)
JUDGE

OCTOBER 10, 2023
akb

CRL.L.P. 365/2022 (upon restoration) Page 8 of 8