IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No.1336 of 2001 (Old No.1624 of 1988) Tara Dutt @ Tulsi S/o Kamla Pati, R/o Muniya Chaura, P.S. Chaura, District Almora …….….…. Appellant Versus The State …………… Respondent Dated: April 11, 2008 Sri S.K. Aggarwal, Sr. Advocate assisted by Sri B.D. Upa hyaya, ld. counsel for the appellant d Sri G.S. Sandhu, learned G.A. for the State/respondent HON. DHARAM VEER, J. This appeal, preferred by the appellant u/s 374(2) of Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 23.06.1988 passed by Sessions Judge, Almora in S.T. No.12 of 1987, whereby the learned Sessions Judge has convicted the appellant-Tara Dutt @ Tulsi under Sections 498-A of Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him for one year R.I. with fine of Rs.5,000/- and in default of payment of fine six months’ further R.I. was awarded. Appellant Tara Dutt @ Tulsi along with co-accused Kamla Pati and Smt. Kaushalya Devi were acquitted from the charge of offences punishable u/s 302 r/w Sections 34 and u/s 201 of IPC. 2. In brief, the prosecution case is that Kamlapati, father in law of deceased Mohani Devi lodged a written report i.e. Ex.Ka-19 with the Patwari Kshetra Chaura, Patti Talla Dora. Thereafter, the Patwari/I.O. Daya Sagar inspected the place of occurrence where he found the dead body of deceased Mohani Devi lying in Goshala and thereafter inquest proceedings were started. (In the rural hilly areas of State of Uttarakhand, the Patwaris are being vested with the police powers). The inquest report Ex.Ka-6 2 was also prepared by him. In the meantime, P.W.4 Amba Dutt, brother of deceased, also reached there. Challan Lash, Photo Lash, letter of request for post-mortem and sample of seal were also prepared, which are Ex.Ka-7 to Ex.Ka-10. A broken bottle of glass was also found near the dead body, which was also sealed and Fard Ex.Ka-11 was prepared. The I.O. also prepared the site plan of the place of occurrence i.e. Ex.Ka-12 and he also prepared the memo of physical feature of deceased Mohani Devi i.e. Ex.Ka-13. The I.O. during the course of investigation also recorded the statements of Trilochan, Gopal Datt, Amba Dutt and Radheyshyam. On 25.11.1985, the statement of Dayadhar, brother of appellant Tara Dutt was also recorded. The I.O. during the investigation, also received an application Ex.Ka-5 moved by Amba Dutt, brother of deceased, with an order of Naib Tehsildar to register a case, the said order was marked as Ex.Ka-14. In the application Ex.Ka-5, Amba Dutt had stated that he was posted as Patwari in Tehsil Ramnagar. On 10.11.1985, he came to know that his sister Mohani Devi died due to burning. Soon thereafter, he along with other villagers went to his sister’s in-laws house. He also stated that after seeing the dead body, he was confident that she had not died due to suicide, but her father in law, mother in law and husband had committed her murder. On the basis of this application, Patwari Chaura prepared the Chik FIR i.e. Ex.Ka-15. Ex.Ka-16 is letter sent by Naib Tehsildar, Ranikhet to Patwari Circle Chaura directing him to transfer the investigation and all the relevant papers to him. On 20.1.1986, the investigation was taken up by Naib Tehsildar (North), Ranikhet himself. He procured all the documents from Patwari and he recorded the statements of the witnesses. During the investigation, he again visited the place of occurrence and prepared the site plan i.e. Ex.Ka-17. Daya Dhar, brother of appellant Tara 3 Dutt also sent three letters, which were also taken into possession by the I.O., these letters were marked as Exs.Ka-2, Ka-3 and Ka-4. After completion of the investigation, the I.O. submitted the charge sheet u/s 302/201 IPC against the appellant Tara Dutt @ Tulsi as well as against the co-accused Kamlapati and Smt. Kaushalya Devi, that charge sheet is Ex.Ka-18. 3. Learned Munsif Magistrate, Ranikhet committed the case to the court of Sessions on 27.1.1987 under section 209 Cr.P.C. after complying with the provisions of Section 207 Cr.P.C. 4. On 20.03.1987, Sessions Judge, Almora framed the charge against the appellant Tara Datt @ Tulsi as well as against the co-accused Kamla Pati and Smt. Kaushalya Devi u/s 302 r/w Section 34 IPC and also u/s 201 of IPC. The charge was read over and explained to the appellant as well as to the co-accused persons who pleaded not guilty and claimed to be tried. 5. To prove its case, the prosecution has examined P.W.1 Dr. S.N. Srivastava who conducted the post-mortem of the dead body of Mohani Devi, P.W.2 Trilochan, P.W.3 Radheyshyam, P.W.4 Amba Datt, brother of deceased Mohani Devi, P.W.5 Daya Sagar, Patwari/I.O. of the case and P.W.6 Ganga Datt Upreti, Naib Tehsildar, also I.O. of the case. 6. Thereafter, the statements of the appellant Tara Dutt @ Tulsi as well as of co-accused Kaushalya Devi and Kamla Pati were recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to them in question form, who denied the allegations made against them. They had not produced any oral evidence in their defence, however in documentary evidence, they produce six letters i.e. 4 Ex.Kha-1 to Ex.Kha-6 and the envelope Ex.Kha-7 as well as the statements of the three witnesses recorded u/s 161 Cr.P.C. i.e. Ex.Kha-8 to Ex.Kha-10. 7. After appreciating the evidence on record and after hearing learned counsel for the parties, the learned Sessions Judge, Almora vide his judgment and order dated 23.6.1988 convicted the appellant-Tara Dutt @ Tulsi u/s 498-A of IPC and sentenced him for one year R.I. with fine of Rs.5,000/- and in default of payment of fine six months’ further R.I. was awarded. Appellant Tara Dutt @ Tulsi along with co-accused Kamla Pati and Smt. Kaushalya Devi were acquitted of the charge of offences punishable u/s 302 r/w Sections 34 and u/s 201 of IPC. Being aggrieved by the aforesaid judgment and order dated 23.6.1988, the appellant Tara Dutt has preferred the present appeal. 8. I have heard Sri S.K. Aggarwal, Sr. Advocate assisted by Sri B.D. Upadhyaya, learned counsel for the appellant and Sri G.S. Sandhu, learned G.A. for the State and perused the entire material available on record. 9. Before further discussion, it is pertinent to mention the ante-mortem injuries found on the person of deceased Mohani Devi, which are reproduced as under: - 1. Ante mortem burn present all over body except both soles and dorsum of foot. Hairs burnt. Ruptured vesicles seen, base red and congested. 2. Charring muscle deep present on back of left shoulder of scapula. No other ante mortem injury seen. Cause of death was shown due to shock as a result of extensive burn injuries. 10. To prove its case, the prosecution has examined P.W.1 Dr. S.N. Srivastava who has stated that on 5 12.11.1985, he was posted as Medical Officer in Ranikhet. The post-mortem of the dead body was conducted by him at 11:00 A.M. He found the ante-mortem injuries on the person of deceased which have been mentioned above. He also proved the post-mortem report which was prepared by him at the time of conducting the autopsy, i.e. Ex.Ka-1. 11. P.W.2 is Trilochan who has stated that appellant Tara Dutt and co-acused Kamlapati and Smt. Kaushalya Devi were known to him. He had gone to the house of his in-laws and his in-laws were not at home and for this reason, he stayed at the house of Damodar. In the morning at about 3-4 A.M., he started moving towards his village. The said way passes away through the village Muniyachaur. At that time, there was dark. He was having a torch with him. Then he heard the words (gk; eSa ej xbZ) and that voice came from the house of Kamlapati. Then he reached at the house of Kamlapati and saw Kamlapati, his wife and both of his sons in the courtyard. He had not gone in the courtyard and he kept standing in the gate. The elder son of co-accused Kamlapati namely Tulsiya was saying his brother that if he will make noise, then he would also face the same consequence. On his asking that what was being going on, Tulsiya told him that it was his personal matter and what interest he had got. After that he had gone to his house. After some time, he received information that Mohani Devi had died. Thereafter, he along with some villagers had gone to Muniyachaura. When he reached there, he saw Mohani Devi lying dead in Goshala and there were signs of burning in her body. After some time, Amba Dutt, brother of deceased Mohani Devi, also reached on the place of occurrence. 12. P.W.3 is Radhey Shyam who has stated that Mohani Devi was his niece and her marriage was solemnized with the appellant Tulsi @ Tara Dutt in the year 1979. She was having no issue. He also stated that 6 whenever Mohani Devi used to come to her parental house, she used to complain about harassment against her in-laws. On 11.11.1985, he received an information that Mohani Devi had died. Then he gone to the house and enquired about the matter. 13. P.W.4 is Amba Dutt, who is the brother of deceased Mohani Devi, has stated that he was working as Lekhpal and on the date of occurrence, he was posted in Tehsil Ramnagar. Mohani Devi was his sister and she was married to the present appellant Tara Dutt of village Muniychaur and her marriage was solemnized 7 years before her death. He further stated that whenever Mohani Devi used to come in her house, she always complained against her in-laws that they were harassing her. Mohani Devi was an illiterate lady. He further stated that elder brother of Tara Dutt namely Dayadhar was living in Delhi and he had written letters to him and his father. Ex.Ka.2 and Ex.Ka-3 are the letters written to him and Ex.Ka-4 is letter which was written to his father Shiv Datt Fulara. On 10.11.1985, he received information that Mohani Devi had died due to burn injuries. He reached his village Muniyachaur along with his brother. After that he moved an application to SDM, Ranikhet, i.e. Ex.Ka-5. He also wrote a letter to Chief Minister, U.P. Government. 14. P.W.5 is Daya Sagar, Patwari/I.O. who has stated that in the year 1985, he was posted as Patwari in Patwari Circle Chaura and village Muniyachaura was also within the said circle. On 10.11.1985, Kamlapati filed a report, that report is Paper No.4-Ka/37. Then, on the basis of this report, he reached on the place of occurrence and he found dead body of Mohani Devi in Goshala of Kamlapati. He inspected the place of occurrence and prepared inquest report i.e. Ex.Ka-6. Meanwhile, Amba Dutt also reached there. He also prepared Challan Lash, 7 Photo Lash, application for post-mortem and specimen of seal and he also proved the same i.e. Ex.Ka-7 to Ex.Ka-10. The dead body was sealed on the spot and was handed over to Shambhu Singh and Raghuvar Singh, Peons for the purpose of post-mortem. A broken glass bottle was also found near the dead body which was taken into possession and Fard was prepared i.e. Ex.Ka-11. He also prepared the site plan of the place of occurrence i.e. Ex.Ka-12 and also prepared memo of physical features of deceased Mohani Devi i.e. Ex.Ka-13. He also recorded the statements of Trilohan, Gopal Dutt, Amba Dutt, Radhey Shyam and Dayadhar. On 20.1.1986, the investigation was transferred to Naib Tehsildar (North) Ranikhet. During the investigation, he received application i.e. Ex.Ka-5 in which order of Naib Tehsildar for registration of the case was there. The said order was written by Naib Tehsildar Ganga Dutt Upreti, i.e. Ex.Ka.14. On the basis of Ex.Ka-5, he prepared the Chik FIR i.e. Ex.Ka-15. 15. P.W.6 is Ganga Dutt Upreti, Naib Tehsildar/I.O. of the case, who has stated that in the year 1986, he was posted as Naib Tehsildar (North) Ranikhet. Patwari Circle Chaura was also in that circle. He was entrusted for the investigation under the orders of SDM, Ranikhet. He started the investigation on 20.1.1986. He also identified Ex.Ka-16 and took all the relevant papers into possession and inspected them. During the course of investigation, he recorded the statements of the witnesses and also inspected the place of occurrence and prepared the site plan i.e. Ex.Ka-17. During investigation, he also received letters from Amba Dutt, those letters are Ex.Ka-2, Ex.Ka-3 and Ex.Ka-4. After completing the investigation, he submitted the charge sheet i.e. Ex.Ka-18. 16. Thereafter, the statements of the appellant Tara Dutt @ Tulsi as well as of co-accused Kaushalya Devi and 8 Kamla Pati were recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to them in question form, who denied the allegations made against them. They had not produced any oral evidence in their defence, however in documentary evidence, they produce six letters i.e. Ex.Kha-1 to Ex.Kha-6 and the envelope Ex.Kha-7 as well as the statements of the three witnesses recorded u/s 161 Cr.P.C. i.e. Ex.Kha-8 to Ex.Kha-10. 17. Sri S.K. Aggarwal, learned senior counsel for the appellant submitted that co-accused Kamlapati and Smt. Kaushalya Devi were acquitted u/s 302 r/w Section 34 IPC & u/s 201 IPC and the present appellant Tara Dutt @ Tulsi was also acquitted u/s 302 r/w Section 34 and u/s 201 IPC. However, the present appellant was convicted u/s 498-A IPC only on the basis of three letters i.e. on record which are Exs.Ka-2, Ka-3 and Ka-4. He further submitted that there is no averment made in the aforesaid letters which may come within the definition of cruelty as defined u/s 498-A IPC. Section 498-A IPC is relevant to mention which reads as under: - “498-A. 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 this 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 or 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. 18. I find force in the argument of learned senior counsel for the appellant. On a careful examination of 9 letters Exs.Ka-2, Ka-3 and Ka-4, there is not a single averment made in those letters which may come within the definition of cruelty as defined u/s 498-A IPC quoted above. From a clear reading of the letters, it reveal that the above-said letters were written by the brother of the appellant Tara Dutt namely Dayadhar to the brother of deceased Mohani Devi namely Amba Dutt and to the father of deceased namely Shiv Dutt Fulara. 19. Learned senior counsel further submitted that even if the averments made in the above-said letters are taken to be true, then also, there is no offence made out against the appellant as punishable u/s 498-A IPC. I find force in this argument advanced by learned senior counsel. On a bare perusal of those letters, it reveals that there is not a single averment in the aforesaid letters which could prove that cruelty had been committed by the appellant/accused to the deceased Mohani Devi, as such the conviction of the appellant passed by trial court is not justified. 20. Learned senior counsel for the appellant further submitted that the evidence produced by the prosecution for the offence punishable u/s 302 r/w Section 34 and also u/s 201 IPC against the appellant and co-accused persons was not relied by learned trial judge. On the basis of the evidence produced by the prosecution i.e. P.W.2 Trilochan, P.W.3 Radhyeshyam and P.W.4 Amba Dutt and also as per the medical evidence of P.W.1 Dr. S.N. Srivastava, the appellant Tara Dutt @ Tulsi along with co- accused Kamlapati and Kaushalya Devi were acquitted of the charges punishable u/s 302 r/w section 34 and also u/s 201 IPC, which also creates a doubt in the prosecution story. I find force in this argument of learned senior counsel. Against the judgment of acquittal passed by the trial court, the State has filed no appeal and this point was also conceded by learned Government Advocate. 10 Furthermore, in the statement recorded u/s 313 Cr.P.C., appellant Tara Dutt stated that his marriage was solemnized before 12 years from the date of his statement and his statement was recorded on 27.5.1988. This fact shows that the marriage of the appellant was solemnized with the deceased in the year 1976 and Mohani Devi died in the month of November, 1985, which is after 9 years of the marriage. 21. Learned senior counsel further submitted that as the letters Exs.Ka-2, Ka-3 and Ka-4 were not written by the appellant Tara Dutt, hence those letters are not binding on him. This argument advanced by learned senior counsel bears weight. The aforesaid letters were even not proved as per required law and even the writer of the letters i.e. Dayadhar was not produced in the court, hence, the contents of the above-said letters are not proved. As such, the letters Exs.Ka-2, Ka-3 and Ka-4 are not admissible in the evidence. The prosecution could have produced Dayadhar, writer of the letters, in the court but by not producing Dayadhar and by not proving the contents by him, the same also creates a reasonable doubt in the prosecution story. 22. In view of the above-said discussion, the conviction and sentence as awarded by the trial court is not justified as per the evidence discussed above. As such, the judgment and order dated 23.6.1988 passed by Sessions Judge, Almora is hereby set aside. The appeal is allowed. The appellant is on bail. He needs not surrender. His bail bonds are cancelled. (Dharam Veer, J.) Rajeev Dang