Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 542 of 2001 (Old No. 319 of 1992) 1. Bhagwati Prasad S/o Deveshwar Prasad 2. Deveshwar Prasad (since deceased) S/o Shiv Shankar Dutt 3. Smt. Sampati Devi (since deceased) W/o Deveshwar Prasad 4. Shiv Prasad S/o Deveshwar Prasad All above R/o Village Muyal Gaon, (Jandhawi), District Tehri Garhwal. ...…………. Appellants Versus The State ...…………. Respondent Mr. Lokendra Dobhal, learned counsel for the appellants. Mr. H.C. Pujari, Addl. Govt. Advocate for the respondent-State. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. Per Hon. Prafulla C. Pant, J. This appeal, preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 28.01.1992, passed by the then learned Sessions Judge, Tehri Garhwal, in Sessions trial No. 02 of 1991, whereby accused / appellants namely Bhagwati Prasad, Deveshwar Prasad, Sampati Devi and Shiv Prasad have been convicted under Section 498-A and 304-B of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.). Each one of the convicts has been sentenced to undergo imprisonment for life under Section 304-B of I.P.C. and rigorous imprisonment for a period of two years under Section 498- A of I.P.C. 2) Heard learned counsel for the parties and perused the lower court record. 3) Prosecution story, in brief, is that Smt. Jasoda (deceased), daughter of Pitambar Datt (P.W. 1) was married to accused / appellant Bhagwati Prasad. Accused / appellant Deveshwar Prasad is father-in-law, and accused / appellant Sampati Devi is mother-in-law of the deceased. Accused / Appellant Shiv Prasad is brother-in-law of the deceased. Prosecution case is that the deceased was ill- treated for non-fulfillment of demand of dowry before her death. About five months before the incident, Pitambar Datt (P.W. 1) father of the deceased, along with Govind Ram (P.W. 4) and Jasoda Devi went to the house of Bhagwati Prasad and asked him to keep his wife (Jasoda) with him and there should be no complaint of harassment against her. On 23.08.1990, there was a marriage of elder brother of the deceased in her parents house and Jagdamba Prasad (P.W. 5), younger brother of the deceased, went on 21.08.1990 to invite his sister Jasoda and her husband to participate in the marriage. However, Bhagwati Prasad refused to attend the marriage and he did not allow Jasoda to go and attend the marriage. It is also alleged by the complainant (Pitambar Datt) that Bhagwati Prasad, his parents and brother demanded Rs. 2,000/- for completing construction of their house, which could not be paid by the parents of the deceased. On 23.08.1990, at about 04:00 P.M., Rajendra Singh (P.W. 3) received information that Jasoda Devi has died by hanging in her in-laws place. When Pitambar Datt received this information he proceeded to the village of Bhagwati Prasad. But, since he could not reach by 04:00 P.M. on 23.08.1990, Pareshwar Prasad Joshi (P.W. 8) Patwari, to whom Bhagwati Prasad (husband of the deceased) informed about the death of his wife, took the dead body in his possession and prepared the inquest report and other necessary papers. He also prepared site plan. On 24.08.1990, Pitambar Datt (P.W. 1) lodged the first information report (Ext. A –1), on the basis of which Patwari prepared the check report (Ext. A –3) and made entry in the general diary, extract of which is Ext. A – 11. The investigation, on application of Pitambar Datt was transferred by the Naib Tehsildar by his order (Ext. A –4) to chandi Prasad Semwal (P.W. 6). (In the interior hills (of Uttarakhand), certain Revenue Officials are given police powers, under U.P. Government Notification No. 494 / VIII –418 –16 dated 7th March 1916). On 24.08.1990, at about 04:00 P.M., postmortem examination was conducted by Dr. R.K. Pant (P.W. 7), who found a legature mark on the dead body. After postmortem examination, the Medical Officer opined that Jasoda has died of Asphyxia, due to hanging. Chandi Prasad Semwal (P.W. 6) after interrogating the witnesses and collecting the evidence submitted charge sheet (Ext. A –6) against all the four accused / appellants. 4) The Magistrate, on receipt of charge sheet, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., appears to have committed the case to the court of Sessions, for trial. Learned Sessions Judge after hearing the parties, on 13.03.1991, framed charge of offences punishable under Section 498-A and 304-B of I.P.C. against all the four accused namely, Bhagwati Prasad, Deveshwar Prasad, Sampati Devi and Shiv Prasad. In alternative, he also framed charge of offence punishable under Section 306 of I.P.C. All the four accused / appellants pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Pitambar Datt (father of the deceased); P.W. 2 Jagat Singh; P.W. 3 Rajendra Singh; P.W. 4 Govind Ram (uncle of the deceased); P.W. 5 Jagdamba Prasad (brother of the deceased); P.W. 6 Chandi Prasad Semwal (Investigating Officer); P.W. 7 Dr. R.K. Pant (who conducted the postmortem examination on the dead body of the deceased and prepared the autopsy report Ext. A –7) and P.W. 8 Pareshwar Prasad Joshi (who prepared the inquest report). The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which they stated that the evidence adduced against them was false and it is further stated by them that Jasoda Devi committed suicide. However, no evidence in defence was adduced on behalf of the accused / appellants. After hearing the parties, the trial court found all the four accused guilty of the offences punishable under Section 498-A and 304-B of I.P.C. After hearing the parties on sentence, learned trial court sentenced each one of the convicts to undergo imprisonment for life under Section 304-B of I.P.C. and rigorous imprisonment for a period of two years under Section 498-A of I.P.C. Aggrieved by said judgment and order dated 28.01.1992, passed by the Sessions Judge, Tehri Garhwal, in Sessions Trial No. 02 of 1991, this appeal was preferred by the convicts before the Allahabad High Court on 12.02.1992, where it was admitted on 14.02.1992. The appeal is received by transfer to this Court under Section 35 of the U.P. Re-organization Act, 2000, for its disposal. 5) Before further discussion, it is pertinent to mention here, the ante mortem injuries found on the person of the deceased by Dr. R.K. Pant (P.W. 7), who prepared the postmortem examination report (Ext. A –7). The ante mortem injuries are being reproduced, as under: i) “Legature mark 17 cm X 3.5 Cm situated between the larynx and the chin, direction obliquely upwards following the line of mandible, is a groove, the base pale, hard, leathery and parchment like and margins red and congested. Subcutaneous tissue under the mark is dry, white and glistening. ii) Two abrasion marks over the right foot dorsum over an area of 4 cm X 3.5 cm, size varying from 2 cms X 1/10 cm to 4 cm X 3/10 cm. iii) Two abrasions over the left foot dorsum over an area 4 cm X 2 cm, size 3 cm X 1/10 cm to 4 cm X 4/10 cm; and 5 cm X 4 cm size varying from 1.5 cm X 1/10 cm to 5 cm to 2/10 cm.” 6) The fact that Jasoda Devi (deceased) was married to the accused / appellant Bhagwati Prasad is not a disputed one. It is also not disputed that Deveshwar Prasad is father- in-law and Sampati Devi is mother-in-law of the deceased. Shiv Prasad is brother-in-law of the deceased is also not a disputed fact. However, the date of marriage, though, not disclosed by the prosecution is relevant to be seen in this case before further discussion of the case. 7) In the first information report it is alleged by the complainant that marriage between Jasoda Devi (deceased) and accused / appellant Bhagwati Prasad took place five years before the incident. However, the complainant in his statement as P.W. 1 says that the marriage took place seven years before the incident. This statement was recorded about eleven months after the date of incident (which means that P.W. 1 Pitambar Datt in his statement on oath says that the marriage took place six years before the incident). In his statement under Section 313 of Cr.P.C., the accused Bahgwati Prasad has stated that his marriage with Jasoda Devi took place about seven years and eight months before the date of incident. A specific suggestion was given by the defendants to P.W. 1 Pitambar Datt, father of the deceased, that the marriage between Jadoda Devi and Bhagwati Prasad took place on 17th of Margshish of Samvat 2039 (November 1982). In reply to said suggestion, P.W. 1 Pitambar Datt did not deny said fact and stated in the cross-examination that he did not know the exact date. This specific suggestion is also made by the defence to P.W. 4 Govind Ram, uncle of the deceased, and he also gave similar reply to the above fact. In these circumstances, it cannot be said that the prosecution has successfully proved that marriage between Jasoda and Bhagwati Prasad took place within seven years of her death. Rather, from the evidence on record, it reflects that marriage did take place before seven years of death of Jasoda Devi. That being so, it cannot be said that ingredients of offence punishable under Section 304-B of I.P.C. are made out, in the present case. When the prosecution has failed to show that marriage between the deceased and the accused / appellant Bhagwati Prasad took place within seven years of death of the deceased, the charge of offence punishable under Section 304-B of I.P.C., cannot be said to have been proved against any of the accused / appellant. 8) As far as the demand of dowry is concerned, the report made by Pitambar Datt, father of the deceased, to the District Magistrate, a copy of which is Ext. A –2, shows that no such allegation was made in the report made on 24.08.1990, by the complainant. Even in the first information report (Ext. A –1) nothing is mentioned that what was the demand of dowry which could not be fulfilled by the complainant. As such, the statement of P.W. 1 Pitambar Datt that Rs. 2,000/- were demanded by the accused / appellants to be paid by next day else Jasoda Devi would be killed, is merely an improvement. As to the demand of dowry there is no mention in the statement of P.W. 2 Jagat Singh or P.W. 3 Rajendra Singh or in the statement of P.W. 4 Govind Ram. However, P.W. 5 Jagdamba Prasad, brother of the deceased, has corroborated his father’s statement, but since there is no mention of such a material fact in the first information report, the same cannot be said to be more than an improvement in the statement. Therefore, the conviction recorded by the trial court under Section 498-A of I.P.C., cannot be sustained as the ingredients of said offence are also not proved beyond reasonable doubt. 9) However, the prosecution has been successful in proving the alternative charge punishable under Section 306 of I.P.C. against the accused / appellant Bhagwati Prasad only. The said Section i.e. ‘306 of I.P.C.’ provides punishment for abetment of commission of suicide. From the medical report, discussed above, it is clearly indicated that Jasoda Devi has committed suicide. From the statement of the witnesses of fact it is also proved on the record that accused / appellant Bhagwati Prasad used to live at times with another woman Mangshiri Devi separately leaving his legally wedded wife at her in-laws place. Not only this, the height of cruelty by Bhagwati Prasad against the deceased is established on the record by the fact that Jasoda Devi was not even allowed to attend her real brother’s marriage which was to take place on 23.08.1990. It is that reason which appears to have compelled the lady to commit suicide. The act on the part of the accused / appellants Bhagwati Prasad proved on the record, amounts to commission of abetment of suicide by Jasoda Devi. 10) Therefore, this appeal deserves to be allowed, partly. The conviction and sentence recorded by the trial court against the accused / appellants in respect of the offences punishable under Section 498-A and 304-B of I.P.C. are liable to be set aside. Their conviction and sentence recorded by the trial court under Section 498-A and 304-B of I.P.C. are set aside. But, the accused / appellant Bhagwati Prasad is liable to be convicted and sentenced under Section 306 of I.P.C. Accused / appellant Shiv Prasad is acquitted of all the charges. He is on bail. He need not to surrender. His bail bonds and cancelled and sureties stand discharged. So far as accused / appellants Deveshwar Prasad and Sampati Devi are concerned, both of them have died during the period of this appeal and their appeal stands abated. 11) For the reasons as discussed above, accused / appellant Bhagwati Prasad is convicted under Section 306 of I.P.C. and he is sentenced to rigorous imprisonment for a period of five years. The accused / appellant Bhagwati Prasad is on bail. His bail is cancelled. The Registry is directed to send the lower court record back to the trial court (Sessions Judge, Tehri Garhwal) to make the accused / appellant Bhagwati Prasad to undergo rigorous imprisonment of five years awarded under Section 306 of I.P.C., by this Court. The period already undergone by him during investigation and trial shall be set off. (Dharam Veer, J.) (Prafulla C. Pant, J.) Dt. June 16, 2008. H. Negi