HIGH COURT OF UTTARANCHAL, AT NAINITAL CRIMINAL APPEAL NO.286 of 2002 1. Dayal Ram S/o Sri Lachhi Ram 2. Lachhi Ram S/o Khim Ram Both R/o Thaslasim P.S. Baijnath, District Bageshwar ………Appellants Versus State of Uttarakhand ……..Respondent Dated :- 01st May, 2008 Mr. Dinesh Chauhan, Advocate for the appellants. Mr. Nandan Arya, Addl. G.A. for the respondent-State. Hon’ble J.C.S. Rawat, J. This is a criminal appeal against the judgment and order dated 24.10.2002 passed by the then Sessions Judge, Bageshwar in S.T. No.36/2001, whereby both the appellants were convicted and sentenced to undergo R.I. for a period of seven years under Section 304-B IPC. Both the appellants were also convicted under Section 498-A IPC, but no separate sentence was passed for the offence punishable under section 498-A IPC. 2. Brief facts of the prosecution case are that a report was lodged on 27.08.2001 at police station Baijnath by Gopal Ram, father of the deceased alleging therein that the marriage of his daughter- Smt. Prema Devi was solemnized with Dayal Ram (appellant) in the month of December 1977 according to Hindu rites and customs. After the marriage, her husband Dayal Ram and father-in-law Lachhi Ram used to assault her in connection with the dowry demand. They assaulted her in the last year also, so his daughter came to her parental house leaving two children in her in-laws house. The complainant took his daughter to her in-laws house and advised the accused not to cause cruelty on his daughter. But, his daughter was again subjected to harassment and cruelty by her husband and father-in-law, due to which she jumped into the river and committed suicide on 22.08.2001. The dead body of his daughter was found near the way in Gomti river on 24.08.2001 but no information was given to him by her in-laws. Later on, the information was received by a student Rajendra Singh that Smt. Prema Devi had been missing for three days from the house of her in-laws. On receiving the said information, Naveen Ram, brother of the deceased and Hari Ram, Village Pradhan went to the house of accused persons on 24.08.2001 and came to know that the dead body of the deceased was found in the Gomati river. Thereafter, Naveen Ram, son of the complainant informed his father who was working in Delhi. On the basis of report, a Chick FIR was prepared and necessary entries were made in the general diary. The investigation was taken up as usual which culminated into the submission of the chargesheet. 3. After submission of chargesheet the accused were committed to the Court of Sessions for trial and the trial court framed charges against the accused persons. The accused persons denied charges levelled against them and claimed the trial. 4. The prosecution in order to support its case examined as many as nine witnesses. Gopal Ram (PW1) and Lachhima Devi (PW2) were the father and mother of the deceased respectively. They have stated that the appellants used to harass the deceased on account of dowry demand. Naveen Chandra PW3 is the brother of the deceased. Lachhi Ram PW4 is the uncle of the deceased. He has corroborated the evidence of Gopal Ram PW1 and Lachhima Devi PW2. Narayan Dutt Joshi PW5 proved the factum of recovery of dead body from the Gomati river. Dr. Deepak Garbiyal PW6 is the Medical Officer, who conducted the postmortem on the dead body of the deceased. The prosecution has also adduced the evidence of H.C.-Ram Kumar (PW7) who proved the chick report Ex.ka.3. Pooran Chandra Upreti PW8 investigated the case initially and rest part of the investigation was taken by Mathura Prasad Tamta PW9 who after completing the investigation submitted the chargesheet against the accused persons. 5. In the statement recorded u/s 313 Cr.P.C. the accused persons denied the prosecution case and stated that they have been falsely implicated in this case. They further stated that the deceased was affected of ill spirits. She went to the river for the work and fell down accidentally in Gomati river. No defence evidence was adduced by the appellants in their defence. 6. The learned trial court after appraisal of the evidence on record, the appellants were convicted and sentenced as mentioned above. 7. I have heard the learned counsel for the parties and perused the evidence on record. 8. It needs to be mentioned here that it is not disputed that the deceased met a death on 22.08.2001 and her dead body was recovered from the Gomati river on 24.08.2001. It is also admitted to the parties that the deceased was married with the appellant Dayal Ram about three years ago from the date of incident and she was legally wedded wife of Dayal Ram. It is also not disputed that the death occurred within seven years of her marriage. The prosecution has taken the case that the death was caused due to drowning in the river. The medical report shows that the cause of death was asphyxia due to drowning. Thus, it clearly shows that the deceased must have been died by otherwise than the normal circumstances. These facts clearly reveal that it is a case of unnatural death. 9. Now, I have to determine as to who is responsible for causing the death of the deceased. It is a well settled principle of law that in order to convict an accused for an offence punishable under section 304B IPC, the following essentials must be satisfied:- (i) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances. (ii) Such a death must have occurred within seven years of her marriage. (iii) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband. (iv) Such cruelty or harassment must be for, or, in connection with demand of dowry. (v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death. 10. If the prosecution establishes the ingredients of Section 304-B IPC as indicated above then a presumption of dowry death shall be drawn against the accused under section 113-B of the Indian Evidence Act. Both the sections 304-B and 113-B were inserted by the Dowry Prohibition Amendment Act (No.43 of 1986) with a view to combat the increasing menace of dowry deaths. Section 113 B reads as follows:- “113B:- Presumption as to dowry death- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person caused the dowry death. Explanation:- For the purposes of this section ‘dowry death’ shall have the same meaning as in section 304B of the IPC (45 of 1860). 11. On proof of essentials mentioned in section 304B IPC it becomes obligatory on the court to raise a presumption that the accused caused the dowry death of the deceased. The presumption shall be raised only on proof of the following essentials:- (i) The question before the court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under section 304B IPC) (ii) The woman was subjected to cruelty or harassment by her husband or his relatives. (iii) Such cruelty or harassment was for, or in connection with any demand of dowry. (iv) Such cruelty or harassment was soon before her death. 12. A conjoint reading of section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the ‘death occurring otherwise than in normal circumstances’. The expression ‘soon before’ is very relevant where section 113B of the Evidence Act and section 304B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. ‘Soon before’ is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under section 113B of the Evidence Act. It depends upon the facts and circumstances of each case. There must be existence of a proximate and live-link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence. 13. The word ‘cruelty’ used under section 304B IPC is not defined under that section. Section 498A IPC makes cruelty by husband to the wife as a punishable offence. The word ‘cruelty’ has been defined in explanation appended to the said section. Section 498A IPC with the explanation there under reads as follows:- “498A :-Husband or relative of husband of a woman subjecting her to cruelty – Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation:- For the purpose of the section ‘cruelty’ means- (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury to danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.” 14. In the light of the above proposition of law, I would like to analyze the evidence produced by the prosecution. As I have pointed out in the preceding paragraphs that the marriage took place in the month of December 1997 and the death of the deceased occurred on 22.08.2001 after about 3 years of marriage. The dead body of the deceased was recovered from the river on 24.08.2001. This fact has been corroborated by the prosecution and the same has not been denied by the defence. The defence has taken a case that the deceased was working near the river and she committed suicide. Thus, the first two ingredients of Section 304-B IPC is proved beyond reasonable doubt. So far as the ingredients (iii), (iv) & (v) of Section 304-B IPC are concerned, the prosecution has led the evidence of Gopal Ram PW1, the father of the deceased. Gopal Ram PW1 had stated in his evidence that her daughter came to her parental house one year back from the date of incident and narrated about the ill-treatment, harassment and cruelty committed by the appellants. Her daughter had also informed that her in-laws were demanding dowry and she was subjected to cruelty due to non-fulfillment of dowry demand. Thereafter, Gopal Ram PW1 took her daughter to her in-laws house and he advised the accused not to cause cruelty on his daughter. Thereafter, he went to Delhi where he was employed. The prosecution has also adduced the evidence of Smt. Lachhima Devi PW2 (mother of the deceased), who has corroborated the evidence of her husband with regard to the harassment and cruelty committed on her daughter about one year back. Smt. Lachhima Devi PW2 has further stated that her daughter came to her house in the month of August 2001 on the Ghee Festival and narrated her mother that her husband and father-in-law were demanding a gold Gluband (necklace) and Rs.10,000/- as dowry. She also informed her mother that she was being subjected to harassment and cruelty in connection with the dowry demand. She also informed her mother that if she would go again to her matrimonial house both the appellants would kill her for not bringing the dowry. Lachhi Ram PW4 has also corroborated the evidence of Smt. Lachhima Devi PW2 on this point. Lachhi Ram PW4 has stated in his evidence that her niece (deceased) came to her parental house in the Ghee Festival about one month ago from the date of incident and she narrated about the cruelty and harassment committed by the appellants in connection with the dowry demand. Naveen Chandra PW3, the brother of the deceased was also produced before the Court. He has also stated the above fact but during the cross examination he has stated that all these facts were told him by her mother, thus, his evidence is only hearsay evidence. 15. The evidence of Gopal Ram PW1, Smt. Lachhima Devi PW2 and Lachhi Ram PW4 is reliable on the point of cruelty or harassment has been meted out to the deceased soon before her death in connection with the dowry demand. Gopal Ram PW1 has stated in his evidence that the cruelty was committed on his daughter one year back from the date of the incident; he was employed in Delhi and he was not present in the house on Ghee Festival, whereas other two witnesses Lachhima Devi PW2 and Lachhi Ram PW4 have stated in their evidence that the deceased came to her parental house on the Ghee Festival and she narrated the vivid details of harassment and cruelty committed by the appellants in connection with the dowry demand. After going through the entire evidence, I am of view that the deceased was subjected to cruelty and harassment soon before the death by the appellants in connection with the dowry demand. The trial court did not find favour to the plea of the accused that the witnesses being the relatives are not credible and the FIR did not contain the details of the dowry demanded by the appellants. The trial court after a close scrutiny of the evidence found the evidence credible and cogent. 16. Learned counsel for the appellants tried to emphasize that both the parties are poor and if the status of the parties was so poor how the other party could claim the dowry. It was contended that such dowry can only be demanded from the person who can fulfill the demand. Learned A.G.A. refuted the contention. It is not disputed that the prosecution evidence reveals that the parties belongs to the lower strata of the society. But, it does not mean that they cannot demand the dowry. In case, the appellants are poor the possibility of demanding a dowry becomes more probable. Merely by holding that the parties are poor cannot be disbelieved the reliable evidence of the prosecution. Therefore, I do not find any force in the contention raised by the learned counsel for the appellants. 17. Learned counsel for the appellants further contended that the FIR was lodged on 27.08.2001 by the father of the deceased and there is a delay in lodging the FIR. It was further contended that the entire evidence of the prosecution should be discarded on the ground that the FIR was a coloured version and it was lodged after due consultation. Learned A.G.A. refuted the contention. It is true that the FIR was lodged on 27.08.2001 at 12:15pm in the police station Baijnath and the death occurred on 22.08.2001. It is well settled position of law that if the prosecution gives a plausible explanation for delay in lodging the FIR and the court feels that the explanation which has been put forward by the prosecution is satisfactory, the veracity of the FIR cannot be assailed on the ground of delay. It is also settled position of law that even if the plausible explanation has not been given but the record itself explains the delay in lodging the FIR by the facts and circumstances of the case the delay would not be fatal to the prosecution. It is in the evidence that on 22.08.2001 the deceased drowned in the river and no information was given to her parents. This fact has been stated by Gopal Ram PW1, Lachhima Devi PW2, Naveen Chandra PW3 and Lachhi Ram PW4. The evidence to that effect is credible and cogent. Nothing could have been elicited during the cross examination to discredit this fact. It is also in the evidence that one Rajendra Singh informed the parents of the deceased after three days of the incident that the appellant Dayal Ram was asking him after three days of incident whether Smt. Prema Devi (deceased) has gone to her parental house and whether he saw his wife because she had been missing since 22.08.2001. Rajendra Singh stated this fact to Naveen Chandra PW3, the brother of the deceased. Thereafter, Naveen Chandra PW3, brother of the deceased and other villagers came to the matrimonial house of Smt. Prema Devi (deceased). Later on, they came to know that the dead body of the deceased was recovered from the Gomati river and it was taken to hospital for postmortem. Thereupon, Naveen Chandra went to Bageshwar and in the evening he informed his father in Delhi about the entire incident. His father Gopal Ram PW1 on the next day lodged the report stating all the facts in the FIR. Thus, this evidence as indicated above is credible and cogent. The prosecution has put forward an explanation of delay in lodging the FIR. In view of the above, I do not find any force in the contention of the learned counsel for the appellants. 18. Learned counsel for the appellants further contended that the mother of the deceased was present at the time of recording the FIR and there is no mention of the articles which were demanded in the dowry. It was further contended that the contents of the FIR are quite vague. Learned A.G.A. refuted the contention. The FIR clearly contains that the appellants used to harass and commit cruelty on the deceased in connection with the dowry demand. It is true that the amount of Rs.10,000/- and a gold Gluband (necklace) have not been specifically mentioned in the FIR. It is well settled position of law that the FIR is not the encyclopedia in which all the details should be mentioned. If the genesis of the incident has been mentioned in the FIR, it is sufficient. The FIR is lodged only to give the motion to the investigation. Merely indicating that the deceased had been subjected to cruelty on account of dowry demand is sufficient in the FIR. Moreover, when the statement of Gopal Ram PW1, Lachhima Devi PW2 and Naveen Chandra PW3 were recorded before the I.O. they have narrated the facts about the Gluband and Rs.10,000/- which were demanded by the appellants as dowry. In view of the above, the contention of the learned counsel for the appellants has no force. 19. Learned counsel for the appellants further contended that Gopal Ram PW1 is the father of the deceased, Lachhima Devi PW2 is the mother of the deceased, Naveen Chandra PW3 is the brother of the deceased and Lachhi Ram PW4 is the uncle of the deceased. All these witnesses are related with each other and their evidence cannot be relied upon. The accused cannot be convicted alone on the evidence of these prosecution witnesses. It was further contended that if the deceased was subjected to cruelty earlier also i.e. one year back, the matter should have been reported to the police by the parents of the deceased. Learned A.G.A. refuted the contention. The evidence of Gopal Ram PW1, Lachhima Devi PW2, Naveen Chandra PW3 and Lachhi Ram PW4 is consistent and nothing had been elicited from their cross examination which may render their evidence unreliable. They remained consistent in their cross examination with regard to the harassment and cruelty committed upon the deceased. So far as the contention regarding the related witnesses is concerned, it is true that all the aforesaid four witnesses are related to the deceased, but the evidence of these witnesses cannot be discarded on this ground alone. There is no rule of law or prudence which requires that the evidence of a close relation must be discarded for the simple reason i.e. they are related to the deceased. I have no reason to disbelieve their testimony. Similarly, being relative, it would be their endeavour to see that the real culprit is punished and they would not implicate wrong person in the crime, so as to allow the real culprit to escape unpunished. Relationship is not a factor to affect the credibility of a witness. In the case of State of Punjab Vs. Karnail Singh reported in 2004 SCC (Cri) p/135 the Hon’ble Apex Court has held as under:- “8. We may also observe that the ground that the witnesses being close relatives and consequently, being partisan witnesses, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh v. State of Punjab reported in AIR 1953 SC 364 in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J., it was observed: (AIR p. 366:- 25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in — Rameshwar v. State of Rajasthan reported in AIR 1952 SC 54 (AIR at p. 59). We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel.” 9 . Again in Masalti v. State of U.P. AIR 1965 SC 202 this Court observed:- “But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.” 20. It is true that the parents have not lodged any report in the year 2000 when the deceased told her parents about the harassment and cruelty committed upon her by her in-laws. It cannot be lost sight how the society prevails in the matrimonial matters. It is always endeavour of the parents of a married daughter that the daughter should live in the house of her husband and they always try to settle all the disputes by mutual understandings. In the Indian society, the lady is sometimes subjected to cruelty and she bears a lot. The marriage being a sacred in the Hindu