RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 213/2001 Rajpal Singh & Others ……… Appellants Versus State of Uttaranchal ………. Respondent Mr. Vinodd Sharma, Advocate, present for the appellants. Mr. Amit Bhatt, A.G.A., present for the State. 24th June, 2011 Hon’ble Prafulla C. Pant, J. Hon’ble Servesh Kumar Gupta, J. (Per : Hon’ble Servesh Kumar Gupta, J.) This appeal has been directed against the judgment and order of Sessions Judge, Chamoli dated 2.5.2001, passed in Sessions Trial No. 26/97 pertaining to Crime No. 1/97, Patwari Circle Saterakhal, wherein the accused appellants Rajpal Singh, Smt. Mangi Devi and Prakash Singh are convicted under Section 304B IPC and have been asked to undergo life imprisonment. They have further been convicted for the offence of Section 498A IPC and sentenced to three months’ rigorous imprisonment. Both the sentences have been directed to run concurrently. 2. As per the FIR, lodged by Raghuveer Singh, father of the deceased Smt. Rekha Devi, the facts are that the deceased Smt. Rekha was wedded in December, 1995 with Tajwar Singh, S/o Rajpal Singh, R/o village Nari (Sily), Tehsil Rudraprayag, as it then was (now district Rudraprayag). It has been stated in the FIR that even at the crucial hours of the marriage i.e. when Tajwar Singh 2 (groom) was being asked to perform the ritual of the anvil of sacred fire, he and his father Rajpal Singh were dissatisfied on the question of dowry, which was offered to them by the girl’s father and they were not ready to leave the anvil until their demands were satisfied. Anyhow, they were persuaded to leave the place. The bride’s father Raghuveer Singh did not raise this attitude further keeping in mind the prospective peaceful life of his daughter, which he expected after tying the knot of the deceased with Tajwar Singh. But his daughter was consistently being tortured not only by the husband Tajwar Singh but also by the father-in-law Rajpal Singh, mother-in-law Smt. Mangi Devi and brother-in-law Prakash Singh. He tried to persuade all the delinquents, but all in vain. He being a poor person could not fulfil the aspirations of dowry as was nurtured by in-laws of his daughter. He has alleged that his daughter was not even offered both ends meal and sufficient clothes to wear on by her in-laws. Whenever she used to visit her father’s house, he always gave something in order to fulfil the demands of her in-laws. Smt. Rekha, whenever came to her father’s house, used to disclose several complaints as she had from the attitude of her in-laws, but anyhow she was consoled. 3. On 21.2.1997, at about 4.30 pm, one Pushkar Singh named lad came from the village Nari, being sent by in-laws of Smt. Rekha, and disclosed that Smt. Rekha is having stomach-ache. Having got this information, Raghuveer Singh reached to the village ‘Nari’ anxiously at about 10 pm and found his daughter torched badly. She was semiconscious and breathing her last. Raghuveer Singh lost his mental balance having a look upon the condition of his daughter. He was circumambulated by the 3 in-laws of Smt. Rekha and was asked to do as they dictate. They also extended the threat to kill him otherwise and got his signatures on the blank papers. To save his life from the clutches of in-laws of Smt. Rekha, he conceded to diktats as above. Anyhow, on the next day evening, he came to his village, which was in District Chamoli and for a quite couple of days he was so shocked as to find himself unable for having recourse to the law. When he was consoled by some of his relatives then he could gather courage to lodge the FIR after coming to concerned Tehsil Rudraprayag, District Chamoli. He lodged this FIR on 28.2.1997, which is Ex. Ka-1. Its chick report is Ex. Ka-2. 4. In the dowry death, the investigation in hills is made by Naib Tehsildar (equivalent to Deputy S.P. rank of the regular police). After the investigation, the chargesheet was submitted against only three accused persons i.e. Rajpal Singh (father-in-law), Smt. Mangi Devi, W/o Rajpal Singh (mother-in-law) and Prakash Singh, S/o Rajpal Singh (younger brother-in-law). Chargesheet is Ex. Ka-7. 5. Prosecution has examined the witnesses PW1 Raghuveer Singh (informant), PW2 Smt. Parwati Devi W/o Raghuveer Singh, PW3 Dr. Akhilesh Kumar Sharma, Medical Officer, PW4 Chandi Ram, Naib Tehsildar. 6. After the deposition of the prosecution witnesses and having recorded the statement under Section 313 CrPC of the accused persons, the trial court has also permitted to examine the DW1 Sureshanand and DW2 Bhagat Singh. 7. We have heard the learned defence counsel and the learned AGA and after perusing the evidence available 4 on the record and the judgment and order of the learned Trial Court, we find that Tajwar Singh, husband of Smt. Rekha is quite out of the scene. No allegation has been made by the deceased against her husband Tajwar Singh. That is why during investigation, he has been exonerated by the Investigation Officer and no chargesheet has been submitted against him. It is also pertinent to mention that Tajwar Singh before and at the time of incident was in the paramilitary force in a very remote place of Assam Province. So he was quite away from his native place. His wife Smt. Rekha was left to serve his parents and the younger brother, but she was being maltreated by her mother-in- law. It is also worth mentioning that her father-in-law Rajpal Singh was also posted in the paramilitary force at Srinagar. Although his place of posting too was not far from his native village ‘Nari’, but fact remains that he was not to be confronted to Smt. Rekha in a day-to-day life because Rajpal Singh as per his official exigencies used to live along with other troops in the paramilitary force of SSB (Shashtra Seema Bal). So he was not a frequent visitor of his village Nari so that to come in confrontation with his daughter-in- law. Deceased Smt. Rekha was left to live mainly along with mother-in-law and younger brother-in-law. 8. Two letters, which were purported to be written by Smt. Rekha soon before her death, are material Ex. 1 dated 9.2.1997 and material Ex. 2 dated 14.2.1997. These two letters divulge the tyrannies and atrocities which this deceased lady was bound to suffer at the hands of her mother-in-law Smt. Mangi Devi and these letters, one after the other, appear to be trustworthy and natural and reveal the anguish which Smt. Rekha was bearing in a suffocated life due to repeated taunts extended to her on the question 5 of insufficient dowry. She was rather being tortured by Smt. Mangi Devi. But it is also significant that no allegation has been made by her against her father-in-law Rajpal Singh and brother-in-law Prakash Singh. These two letters are the evidence of torturing her at the hands of Smt. Smt. Mangi Devi soon before her death. 9. The term ‘soon before death’ has been construed by the Hon’ble Apex Court time and again in many of the cases. It would be worth mentioning few of them. In State of Andhra Pradesh v. Raj Gopal Asawa, 2004 AIR SC 1933, it has been held that in cases of dowry deaths and suicides, circumstantial evidence plays an important role and inference can be drawn on the basis of such evidence. 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’. ‘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. No definite period has been indicated and the expression ‘soon before’ is not defined. 10. The above view is again reiterated in Yashoda v. State, 2004 (1) UP CrR 406, wherein it has been held that ‘soon before’ is pregnant with the idea of proximity test. It is not synonymous with the term immediately before. The deceased a young girl without suffering any ailment went to her matrimonial home in good heath just 15 days ago. Suddenly one day her parents came to know that she had died. Her death was, therefore, clearly in circumstances 6 which cannot be considered to be normal. If she had died really a natural or accidental death, the appellants were the best persons to disclose the relevant facts which were solely within their knowledge. 11. Recently in case of Pradeep Singh v. State of Jharkhand, AIR 2007 SC 2154, the Hon’ble Apex Court has held that ‘soon before death’ is an elastic term – what is relevant is there should be a perceptible nexus between death of deceased and dowry related harassment or cruelty inflicted on her. 12. Now, it is relevant to note that the marriage was solemnised in December, 1995 and Smt. Rekha succumbed to the burn injuries on 21.2.1997 i.e. just one and quarter span of the year of her wedding. In such circumstances, Section 113-B of the Indian Evidence Act is very relevant to note, which reads as under: “113-B. 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 hear death such woman had 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 had caused the dowry death. Explanation.—For the purposes of this section, “dowry death”, shall have the same meaning as in section 304-B of the Indian Penal Code (45 of 1860).” 7 13. It is also the duty of the Court to mention the language of Section 304B of the IPC, which is as under: “304B. Dowry death.—(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death. Explanation.—For the purpose of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).” 14. Now, the word “dowry” is also to be looked in, which has been defined in Section 2 of the Act No. 28 of 1961. It reads as under: “In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly— (a) by one party to a marriage to the other party to the marriage; or (b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person; at or before or any time after the marriage…………….” 8 15. It is evidently clear that no autopsy was got conducted upon the dead body of deceased while the death of Smt. Rekha was under quite abnormal circumstances. Had they (accused), particularly Smt. Mangi Devi, been innocent, then it was incumbent upon them to get the autopsy conducted upon the body of deceased Smt. Rekha Devi so that the real cause of the death could have been ascertained. It meticulously indicates the guilty spirit of the accused persons. 16. PW1 Raghuveer Singh in his deposition in the court has stood with the FIR lodged by him. He has proved the entire facts of atrocities as his daughter used to disclose after coming to his house time and again. Needless to mention that the villages of Raghuveer Singh (informant) and the accused persons at the time of incident were in the same district and located at the distance of around 35-40 kilometres. It has been repeatedly proved that Smt. Mangi Devi used to demand the dowry commenting that the father of Smt. Rekha has not given even the ‘Bari’ (utensil of cooking the pulses) and ‘Geddu’ (utensil of cooking rice), which are normally customarily given in the dowry in the hills. Both letters material Ex. 1 and Ex. 2 have been proved by Raghuveer Singh in front of the court as he was familiar with the writing script of his daughter. So these letters are very strong testimonials indicating staunchly the guilt of Smt. Mangi Devi. 17. PW2 Smt. Parwati Devi has also proved that her daughter Smt. Rekha was educated up to 12th standard and has narrated the sequence of facts in the same manner as has been deposed by PW1 Raghuveer Singh, father of the deceased. 9 18. PW3 is Dr. Akhilesh Kumar Sharma. He runs private clinic in a nearby place Saterakhal. He was informed not by the accused persons but by some other man who was a distant relative of Smt. Rekha about the incident. He went to the accused persons’ house and found Smt. Rekha in a state of having ablazed. He was not in a position to extend any treatment to her, so he advised the in-laws of Smt. Rekha to carry the burnt patient to some medical centre. Surprisingly, they did not follow the advice of the doctor and kept Smt. Rekha lying on the ground as if they were waiting for her last breathe and thus she met her fate. 19. PW4 Chandi Ram Naib Tehsildar is the formal witness. He has investigated the matter and has submitted the chargesheet and proved the same in the court. 20. It has been contended on behalf of the accused persons by the defence counsel that the father of the girl was a retired army personnel and did not quickly lodge the FIR. Rather he signed at the bottom of the inquest report material Ex. 3 (not prepared by police). The contents of this report exonerates each and every accused in toto, but the genuineness of this report, the Court doubts very much, as he has already disclosed in the FIR that when at 10 pm he reached to the house of her daughter, her body was lying on the ground and he was got circumambulated by the members of her in-laws family and made to sign on blank papers. So the signatures of Raghuveer Singh on this inquest report are the same signatures which were procured forcefully. The next paper of the inquest report does not bear any contents, but only the signatures of ten 10 persons of the same village. These persons naturally could not go against Rajpal Singh, as the latter appears to be their influential neighbour being posted in paramilitary forces in the close vicinity of the village. His son was also in the paramilitary force, thus a Government servant and an earning member. So being sound in his economic position and otherwise too the villagers were not expected to withstand with a stranger Raghuveer Singh and thus inviting the wrath of Rajpal Singh against them. The lodging of the FIR is only with 5 days’ of delay because Raghuveer Singh reached his house on 22.2.1997 evening in such a desperate and tired state of affairs that it was not unnatural on his part to lose his mental balance at the moment. So, abstaining from going to the police station or to some Government machinery for lodging the FIR for a couple of days is natural. When he was consoled by his own relatives, then he could muster the courage to go to the Patwari concerned for lodging the FIR. These all sequence rather make the course of events more natural. 21. DW1 Sureshanand and DW2 Bhagat Singh, who are residents of the same village, have not deposed anything, which is substantial to exonerate Smt. Mangi Devi from the offence. 22. There is consistent and specific evidence adduced by PW1 Raghuveer Singh and PW2 Parwati Devi relating to demands of dowry by Smt. Mangi Devi (mother- in-law) and cruelty committed by her against the deceased. But the same cannot be said as against other two accused, namely, Rajpal Singh and Prakash Singh. So in view of the above discussion and analysis of the evidence, this Court concurs the view taken by the learned Trial Court as 11 regards involvement of Smt. Mangi Devi in the commission of crime, while at the same time, do not find the sufficient evidence against Rajpal Singh and Prakash Singh with the result that the conviction and sentence as recorded against Smt. Mangi Devi is upheld, while for rest of the two accused persons i.e. Rajpal Singh and Prakash Singh, it is set aside. 23. Accordingly, the appeal of Rajpal Singh and Prakash Singh is allowed. Their conviction and sentence recorded by the trial court is set aside. But the appeal of Smt. Mangi Devi is dismissed. Let the trial court record be sent back to the court below for compliance as above. After taking Smt. Mangi Devi into custody for serving out sentence, this Court will be informed at the earliest. (Servesh Kumar Gupta, J.) (Prafulla C. Pant) 24.6.2011 24.6.2011 Prabodh