RESERVED JUDGMENT HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.132 OF 2008 Mohan Singh .……….. Appellant Versus State of Uttarakhand ...…….. Respondent Dated: March 11, 2010 Sri Siddhartha Bisht, Advocate for the appellant Sri Nandan Arya, AGA for the State Hon’ble Dharam Veer, J. This criminal appeal, preferred by the appellant u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.) is directed against the judgment and order dated 24.04.2008 passed by Sessions Judge, Almora, Camp- Ranikhet in Sessions Trial No.06/2006, State Vs. Mohan Singh & another, whereby the learned Sessions Judge convicted the accused/appellant Mohan Singh under Sections 498-A and 304-B of The Indian Penal Code, 1860 (hereinafter to be referred as the IPC). The accused/appellant was sentenced to seven years’ R.I. u/s 304-B and two years’ R.I. with a fine of Rs.2,000/- u/s 498-A and in case of default in the payment of fine, further three months’ simple imprisonment was awarded to the accused/appellant. Both the sentences were directed to run concurrently. However, the co-accused Smt. Naruli Devi was acquitted of the charge levelled against her by the trial court after giving benefit of doubt. 2 2. Heard learned counsel for the parties and perused the entire material available on record. 3. In brief, the prosecution case is that on 17.12.2005 Smt. Manju Devi died. This death information was given to the Patwari by the accused/appellant. On this, Patwari prepared the inquest report of the dead body on 18.12.2005, which is Ext.Ka-4. Along with the inquest report, other papers viz. specimen of seal Ext.Ka-6, sketch of the dead body Ext.Ka-7, Police Form No.13 Ext.Ka-8 were also prepared. (In Rural Hilly Areas of State of Uttarakhand, the Patwaris and certain Revenue Officials are being vested with police powers vide U.P. Govt. Notification No.494/VIII-418-16 dated 7.3.1916). Thereafter, the dead body was sent for post-mortem examination. On 19.12.2005 at 03:30 PM post- mortem of the dead body of the deceased Smt. Manju Devi was conducted by Dr. Devendra Singh (PW3) and Dr. P.S. Kholia. The post-mortem report is Ext.Ka-2. On 20.12.2005, PW1 Smt. Rama Devi, mother of the deceased, lodged a report before Patwari, Village Rikwasi, Patti Hinola, Tehsil Bhikyasen, District Almora with the averments that the marriage of her daughter Manju had taken place with the accused/appellant Mohan Singh Dangwal three years before as per Hindu RITES. Two children were born out of the said wedlock. It was alleged that since after the marriage the accused/appellant and his mother (co-accused) were harassing her daughter for dowry and several times they used to demand ornaments and cash from her daughter. Her daughter used to tell about the same to her but for the sake of matrimonial life of her daughter they did not complaint against the 3 accused/appellant and the co-accused. At present also the accused/appellant and co-accused were demanding Rs.25,000/- from her daughter. It is further alleged that on 17.12.2005 the accused/appellant and the co-accused have committed murder of her daughter for the demand of dowry. After hearing the death news of her daughter, she became unconscious therefore delay has occurred in lodging the report of the incident. With the same averments, Smt. Rama Devi lodged a report before Patwari, Village Rikwasi, Patti Hinola, Molekhal, Tehsil Bhikyasen, District Almora on 20.12.2005 at 02:00 PM. That report is Ext.Ka-1. On the basis of report Ext.Ka-1, Chik FIR Ext.Ka-3 of the case was prepared. Initially the investigation of this case was entrusted to Sri Pooran Prakash, Patwari but lateron it was transferred to P.W.8 Hari Ram Tamta, Nayab Tehsildar. During the course of investigation, the I.O./Patwari recorded the statement of the witnesses and prepared the site-plan of the place of occurrence, which is Ext.Ka-5. On completion of the investigation, the I.O. filed the charge sheet against the accused/appellant and the co-accused. That charge sheet is Ext.Ka-9. In the post-mortem, cause of death was unascertained. Hence, viscera were preserved. The viscera report after chemical examination was received from Scientific Laboratory, Agar, which is Ext.Ka-10. 4. On receipt of the charge sheet, learned Judicial Magistrate, Ranikhet, committed the case to the court of Sessions on 23.2.2006, after giving necessary copies to the accused/appellant and the co- accused, as provided u/s 207 Cr.P.C. 4 5. On 21.3.2006, learned Sessions Judge, Almora framed the charge under Sections 498-A and 304-B IPC against the accused/appellant and the co- accused (acquitted by the trial court). The charge was read over and explained to the accused persons to which they pleaded not guilty and claimed to be tried. 6. In order to prove its case, the prosecution examined PW1 Smt. Rama Devi, mother of the deceased and complainant of the case, PW2 Rajendra Prasad, through whom the report Ext.Ka-1 was sent by PW1 Rama Devi before the Patwari concerned, PW3 Dr. Devendra Singh, who conducted the autopsy of the dead body of the deceased, PW4 Smt. Anju Devi, sister-in-law (DEVRANI) of the deceased, PW5 Hira Singh, PW6 Chandan Singh, PW7 Govind Singh, father of the deceased and PW8 Hari Ram Tamta, Nayab Tehsildar, who later on investigated the case. 7. Thereafter, the statement of the accused/appellant and the co-accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to each of them in question form, who have denied the allegations made against them. In defence, the accused/appellant Mohan Singh examined himself as DW1 and Ummed Singh as DW2. 8. After appreciating the entire evidence on record and hearing learned counsel for the parties, learned Sessions Judge, Almora, Camp Ranikhet vide his judgment and order dated 24.4.2008 convicted and sentenced the accused/appellant as stated above. However, the co-accused Smt. Naruli Devi was acquitted by the trial court after giving benefit of 5 doubt. Against the said judgment and order, the accused/appellant has preferred this appeal. 9. Before further discussion, it is pertinent to mention that the post-mortem of the dead body of the deceased was conducted by Dr. Devendra Singh and Dr. P.S. Kholia on 19.12.2005 at 03:30 PM. The post- mortem report is Ext.Ka-2, which reads as under:- “Cause of death unascertained, hence viscera preserved. Duration since death about 48 hours (two days).” 10. To prove the above post-mortem report, the prosecution has examined PW3 Dr. Devendra Singh, who has proved the report Ext.Ka-2 and has stated that that on 19.12.2005 he alongwith Dr. P.S. Kholia had conducted the post-mortem of the dead body of the deceased. The post-mortem report was prepared by him on which both of them had made their signatures. Cause of death could not be ascertained hence viscera was preserved. He further stated that the death was occurred within 48 hours before. He further stated the viscera report is on file which is Ext.Ka-10. In the viscera report, organo phosphorous insecticide was found due to which death is possible. He further stated that at the time of conducting post- mortem, symptoms of this poison were found on the body of the deceased for its confirmation, viscera was preserved. 11. To prove its case further, the prosecution examined PW1 Smt. Rama Devi, who has stated that her daughter was married with the accused/appellant 6 Mohan Singh on 28.11.2002 as per Hindu RITES. After one year of the marriage, when her daughter used to come her house then she used to tell her that her husband and mother-in-law used to demand Mangalsutra, bangles and cash. Once demand of Rs.10,000/- was made which she had sent through her daughter. The accused/appellant and his mother used to threaten her daughter for life for not fulfilling the demand of dowry. She further deposed that 25-26 days before death her daughter had come to her house and had demanded bangles. This demand was not made by her daughter however it was made by the accused/appellant and her mother. She further deposed that on 14.12.2005 when her daughter went from her house then she had worn Mangalsutra. Her daughter used to complaint that she has been married in such a house where there is always a demand of gold and money. On 18.12.2005 at about 04:00 PM she got the information that her daughter Manju has died. On this, she became unconscious. Thereafter she got the report of the said incident lodged before Patwari Rikwasi through Rajendra Prasad (PW2). This witness was cross-examined at length by the defence counsel but nothing has come out from her evidence which may create any doubt in her evidence. The evidence of this witness is reliable, believable and inspires confidence. 12. PW2 is Rajendra Prasad, who has stated that he is a resident of Village Mohan and the house of Rama Devi (PW1) is at a distance of 100 mts from his house. Daughter of Rama Devi was married with the accused/appellant Mohan Singh. He had come to know from some outside people that the in-laws of 7 Manju used to harass her. Before the death when Manju Devi had come to her parental hosue then he had heard from some women that while going to in- laws house her mother had given her Mangalsutra. He was called in the house of Rama Devi. When he reached in the house of Rama Devi then he was told that in-laws of Manju Devi have committed her murder. Next day Rama Devi called her elder son-in- law from Delhi. Report of the said incident was given to him on 20.12.2005 and he lodged the same before Patwari. This witness was cross-examined at length by the defence counsel but nothing has come out from his evidence which may create any doubt in his evidence. The evidence of this witness is reliable, believable and inspires confidence. 13. PW4 is Smt. Anju Devi, who has stated that the deceased Manju Devi is her real sister-in-law (JETHANI). On 17.12.2005 at 4 PM she saw Manju in the room. At 6 PM when she came to house after taking grass then Manju Devi had died. She further stated that she does not know whether Manju Devi had brought ornaments from her house or not. 14. PW5 is Heera Singh, who has stated that the said incident had taken place in December 2005. Jeevan Singh had told him about the said incident. He was told that Manju Devi is doing vomiting then he called Mohan Singh. Thereafter he had not gone in the house of Mohan Singh. When he came to his house then he came to know that she has died. He does not know how she has died. He also does not know about the family relations of the deceased. 8 15. PW6 is Chandan Singh, who has stated that the said incident had taken place in December 2005. On the date of incident in the evening, husband of the deceased told him that his wife has died and asked him to give this information to his in-laws. Then he has given this information to mother-in-law of Mohan Singh (accused/appellant). He does not know whether the in-laws of Mohan Singh had come in the cremation ceremony. He also does not know about the relations between the deceased, her husband and her mother-in-law. He also does not know how the deceased had died. 16. PW7 Govind Singh is father of the deceased. He has stated that Manju was married with the accused/appellant Mohan Singh on 28.11.2002. After the marriage she used to come to her parental house. One day she told him that her husband and mother-in-law used to demand money and they had demanded gold Mangalsutra and bangles. He further deposed that for the sake of her daughter’s matrimonial life he did not lodge any complaint and had gave Mangalsutra to her. He also gave Rs.10,000/- to the accused/appellant for shop and Rs.5,000/- in the marriage of the brother of the appellant. He deposed that the above-said money was given to the accused/appellant on his demand. He further deposed that her daughter Manju used to tell about her problems to her mother and his wife then used to tell him the same. His daughter used to tell about the harassment committed upon her by her husband and mother-in-law for the demand of dowry. His daughter Manju had come to his house on 8.12.2005. At that time he was not in the house. Then 9 she had gone to her in-laws house on 14.12.2005. At that time he had given a mangalsutra to her, receipt of which he had given to Patwari. On 20.12.2005, he gave a telephonic call to his elder daughter and enquired about the well-being of his house then she told him that Manju has been murdered by her husband and mother-in-law. He further deposed that the in-laws of Manju had not given him any information regarding the said incident. He also could not see the dead body of Manju. This witness was cross-examined at length by the defence counsel but nothing has come out from his evidence which may create any doubt in his evidence. The evidence of this witness is reliable, believable and inspires confidence. 17. PW8 Hari Ram Tamta is the Investigating Officer of the case. He has stated that on 3.1.2006 he was posted as Nayab Tehsildar. On that day he was entrusted with the investigation of this case by the order of S.D.M., Sult. During the course of investigation, he recorded the statements of the witnesses. He has proved the Chik FIR Ext.Ka-3, inquest report Ext.Ka-4, site-plan of the place of occurrence Ext.Ka-5, specimen of seal Ext.Ka-6, sketch of the dead body Ext.Ka-7 and Challan lash Ext.Ka-8, which was prepared by Pooran Prakash, Patwari. He inspected the place of occurrence and found the site-plan of the place of occurrence to be correct. On completion of the investigation, he filed the charge sheet Ext.Ka-9 against the accused persons. 18. Thereafter, the statement of the accused/appellant and the co-accused were recorded 10 u/s 313 Cr.P.C. The oral and documentary evidence were put to each of them in question form, who have denied the allegations made against them. In defence, the accused/appellant Mohan Singh examined himself as DW1 and Ummed Singh as DW2. 19. D.W.1 Mohan Singh has stated that he was married with the deceased Smt. Manju Devi on 28.11.2002. In the marriage, no conversation regarding dowry had taken place. He further stated that after the marriage he and his mother neither demanded dowry from the deceased and her family members nor they committed harassment or marpeet with the deceased. He further stated that before this marriage, he had married to one Smt. Rama Devi, divorce of which had taken place in the court. At the time of marriage, he was working as Manager in a private company at Delhi. After one year of the marriage, he left the job and opened his own shop. At the time of marriage, he had told his in-laws that this is his second marriage. He does not know whether this fact was told to his wife Manju by his in-laws. Due to this, she used to keep angry and it might be possible that because of this she has committed suicide. He further deposed that his shop is at a distance of 2 kms from his house. On 17.12.2005 at about 6-7 PM he received the information of death of Manju in his shop. On 18.12.2005 in the morning he gave a written report to Patwari about the said incident and also sent information to his in-laws. Thereafter, Patwari prepared the inquest report. He further stated that the report which lodged by him before Patwari is Ext.Kha-1. Mother of the deceased 11 and other people had come to his house on 18.12.2005. 20. DW2 Umed Singh has stated that the families of accused/appellant and the deceased are in his relation. He had also gone to discuss about the marriage of Manju and Mohan and at that time no conversation regarding dowry had taken place. He further stated that the accused/appellant Mohan Singh is a rich person of the area. After the marriage, he used to go in the house of Mohan Singh and Manju Devi (deceased) also used to meet him. After the marriage, Manju Devi or her parents never complaint to him that the in-laws of Manju are torturing her for dowry. 21. Learned counsel for the appellant submitted that on the basis of the evidence above- said, there is no case made out against the appellant u/s 304-B and 498-A of IPC. I do not find force in the submission of learned counsel for the appellant. Before any further discussion, it is necessary to reproduce Sections 498-A and 304-B of IPC which read 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 12 (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. 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). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extended to imprisonment for life.] Section 2 of the Dowry Prohibition Act, 1961 is also relevant to mention here which provides definition of Dowry, which is reproduced as under: - 2. Definition of ‘dowry’- 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 parent 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] [in connection with the marriage of the said parties, but does not include] dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies. Explanation II- The expression “valuable security” has the same meaning as in section 30 of the Indian Penal Code (45 of 1860). 13 Section 113-B of Indian Evidence Act, 1872 is also relevant to mention here which also reads as under: - [113-B. Presumption as to dowry death- 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 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).] 22. To prove the case u/s 304-B, it is essential to prove the following essentials (1) Death of a woman should be caused by any burns or bodily injury or otherwise than under normal circumstances, (2) death should be caused within seven years of marriage, (3) woman must have subjected to cruelty or harassment by her husband or any relative of her husband (4) cruelty or harassment should be for or in connection with any demand for dowry to the women before her death. 23. From a perusal of the evidence, it is proved that the deceased Manju Devi had not died in normal circumstances. From the evidence of PW1 Smt. Rama Devi, PW2 Rajendra Prasad, PW4 Smt. Anju Devi, PW5 Hira Singh, PW6 Chandan Singh and PW7 Govind Singh, it is well established that the deceased had died in the house of the present appellant. Further, as per the statement of PW3 Dr. Devendra Singh and the viscera report Ext.Ka-10, Organo Phosphorous Insecticide Poison was found in the viscera. Thus, it is clear that the deceased Smt. Manju 14 had died in the house of present appellant due to consumption of poison and that is not a death in normal circumstances. 24. The next circumstance is that Manju Devi was married to the appellant on 28.11.2002 and she had died on 17.12.2005 i.e. within 7 years of her marriage and this is an admitted fact between both the parties from the evidence. P.W.1 Smt. Rama Devi and P.W.7 Govind Singh have clearly stated in their statements that the marriage of Manju Devi was solemnized on 28.11.2002 and she had died on 17.12.2005 at the house of present appellant and this fact was also admitted in the statement recorded u/s 313 of Cr.P.C. of the appellant. 25. From the statement of PW1 Smt. Rama Devi and PW7 Govind Singh, it is well established by the prosecution beyond reasonable doubt that deceased Manju Devi was mentally and physically tortured and harassed for the demand of dowry just before her death. PW1 Smt. Rama Devi has stated that after one year of the marriage, when her daughter used to come her house then she used to tell that her husband and mother-in-law are demanding Mangalsutra, bangles and cash. Once the accused/appellant had demanded Rs.10,000/- to which she had sent through her daughter. The accused/appellant and his mother used to threaten her daughter for life for not fulfilling the demand of dowry. It was also stated by her that 25-26 days before death her daughter had come to her house and had demanded bangles. This demand was not made by her daughter 15 however it was made by the accused/appellant and her mother. It was also stated that on 14.12.2005 when her daughter went from her house then she had given a Mangalsutra to her. Her daughter used to complaint that she has been married in such a house where there is always a demand of gold and money. These facts further get corroboration from the evidence of PW7 Govind Singh, who is the father of the deceased. PW7 Govind Singh has specifically stated that on the demand of the accused/appellant he had given Rs.10,000/- for shop and Rs.5,000/- in the marriage of the brother of accused to the accused/appellant. Apart from above, PW2 Rajendra Prasad has also stated that he had come to know from some people that the in-laws of Manju used to harass her. He had heard from some women that before the death when Manju had gone to her in-laws house then her mother had given her Mangalsutra. Thus, from the evidence discussed, it is proved by the prosecution beyond reasonable doubt that the deceased Manju Devi was mentally and physically tortured and harassed by the appellant just before her death for the demand of dowry. 26. Thus, in view of the aforesaid discussion, I am of the considered view that the offences punishable under Sections 304-B and 498-A of IPC are fully proved against the appellant-accused Mohan Singh beyond any reasonable doubt and the trial court has rightly