IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 1849 of 2001 1. Harish Chandra Singh 2. Smt. Shankari Devi …Appellants. Versus State of Uttaranachal (Uttarakhand) ….Respondent Present : Mr. Pradeep Hairiya, Amicus Curiae for the appellants. Mr. Amit Bhatt, Assistant Government Advocate for the respondent. Coram: Hon’ble Prafulla C. Pant, J. Hon’ble Sudhanshu Dhulia, J. Prafulla C. Pant, J. (Oral) (1) This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973, is directed against the judgment and order dated 31st October, 2001 passed by learned Sessions Judge, Chamoli in session trial no. 12 of 2000, whereby said court has convicted the appellants Harish Chandra Singh and Shankari Devi under Sections 498A and 304B Indian Penal Code, 1860. Each one of the convicts has been sentenced to imprisonment for life and directed to pay fine of ` 5,000/- under Section 304B IPC, and rigorous imprisonment for a period of three years and directed to pay fine of ` 5,000/- and under Section 498A IPC. (2) Heard Amicus Curiae for the appellant and AGA for the State. (3) Prosecution story, in brief, is that appellant Harish Chandra Singh got married to Smt. Jasoda Devi (deceased) in the year 1993. Two female children were 2 born out of the wedlock. Appellant Harish Chandra Singh was unemployed youth. He and his mother Shankari Devi (appellant no.2) used to demand dowry of ` 30,000/- for completing the study of appellant no.1 (husband of deceased) and for his establishment. The parents of the deceased expressed their helplessness in making the payment in one go and requested the two accused/appellants to allow them to pay in installments. On 29.9.1999, accused-appellant Harish Chandra Singh came to the house of parents of the deceased and told them that he does not want to keep Jasoda Devi (deceased) with him. On the next day i.e. 30.9.1999, PW1 Gaje Singh (father of the deceased) was informed that his daughter Jasoda Devi (deceased) was lying hanging from a tree. On this, he went to Village Harsari and saw that the body of his daughter was lying hanging from a branch of tree but his legs were resting on the ground. Meanwhile, PW2 Sunita Devi, Village Pradhan informed Naeb Tehsildar about the dead body of Jasoda Devi lying hanging from a branch of tree on which Naeb Tehsildar came to the spot and prepared Inquest Report (Ext. A4) on 30th September, 1999 at 3.30 PM. He also got prepared sketch of the dead body (Ext. A5), Police Form No-13 (Ext. A6), letter to Chief Medical Officer (Ext. A7) requesting for postmortem examination and Sample Seal (Ext. A8). The dead body was sent in a sealed condition for post mortem examination. Team of doctors namely, Dr. Mayank Upadhyay (PW5) and Dr. Annusuya Prasad (PW6) conducted post mortem examination on the dead body of Jasoda Devi on 1.10.1999 at 3.50 PM. They recorded the ligature mark around the neck of the deceased and also four burn injuries on her body. The team of doctors, in the Autopsy Report (Ext. A3) opined, 3 that deceased had died of asphyxia as a result of hanging. They further found that the deceased was pregnant and carrying 14 to 16 weeks foetus in her uterus. PW1 Gaje Singh (father of the deceased) lodged First Information Report (Ext. A1) on 2nd October, 1999 and gave it to Naeb Tehsildar of Gairsain. On the basis of which, Crime No. 1 of 1999 was registered in the Patwari Circle Mehalchouri relating to offences punishable under Sections 304B, 498A and 201 IPC against accused- appellant no. 1 Harish Chandra Singh and accused- appellant no.2 Smt. Shankari Devi (mother in law). Investigation was taken up by PW6 Annusuya Prasad. He interrogated the witnesses and inspected the site. On completion of investigation, the Investigating Officer submitted charge-sheet (Ext. A14) against two accused Harish Chandra Singh and Smt. Shankari Devi for their trial in respect of offences punishable under Section 304B and 498A IPC. (4) The Chief Judicial Magistrate, Karnprayag, on receipt of the charge-sheet, and after giving necessary copies to the accused, committed the case to the court of sessions for trial. On 11.4.2000, after hearing the parties, learned Sessions Judge, Chamoli, framed charge of offences punishable under Sections 304B and 498A IPC against the two accused namely, Harish Chandra Singh and Shankari Devi. In alternative, the said court further framed charge of offence punishable under Section 306 IPC. Both the accused-appellants pleaded not guilty and claimed to be tired. On this, prosecution got examined PW1 Gaje Singh (informant and father of the deceased) PW2 Sunita Devi, Village Pradhan, PW3 Mathura Devi (mother of the deceased), PW4 Smt. Savitri Devi (aunt of the deceased), PW5 Dr. Mayank Upadhyay, one of the 4 Medical Officers, who was in the team of doctors, conducted post mortem examination and PW6 Annusuya Prasad, Naeb Tehsildar, who investigated the crime (In Uttarakhand Hills in certain areas, Revenue Officers are given police powers). (5) The oral and documentary evidence was put to the accused under Section 313 Cr.P.C., in reply to which they admitted that Jasoda Devi was the wife of Harish Chandra Singh and that she used to go her parental house from her in laws house. It is also admitted that the deceased was carrying pregnancy. However, all other evidence relating to demand of dowry and harassment was denied and it is stated that the same is false. However, no evidence was given in defence even after several opportunities sought and given to the accused. After hearing the parties, trial court found that the prosecution has successfully proved the charge of offences punishable under Sections 304B and 498A IPC against both the accused namely, Harish Chandra Singh (husband) and Shankari Devi (mother in law), and they were convicted accordingly. After hearing on sentence, each one of the convicts was sentenced to imprisonment for life and directed to pay fine of ` 5,000/- under Section 304B IPC, and rigorous imprisonment for a period of three years and directed to pay fine of ` 5,000/- under Section 498A IPC. Aggrieved by said judgment and order dated 31.10.2001 passed by learned Sessions Judge, Chamoli, this appeal was preferred by the convicts. (6) Before further discussion, we think it just and proper to mention that ante mortem injuries found by the team of the doctors, which are mentioned in the Autopsy Report (Ext. A3). The ante mortem injuries found on the 5 dead body of Jasoda Devi by the team of doctors are being reproduced below:- “(i) Oblique, interrupted ligature mark present on the neck 25 cm X 2.5 cm (width is not uniform) brownish parchment like starting from right mastoid process going downward and forward behind right angle of mandible to the front neck downward to left side of neck, then oblique upper nape of neck to right ending from behind right ear on right side of neck in front below (8 cm), this mark 8 cm. X 6 cm abraded. (ii) Burn present in front of and side of right thigh (lower 2/3rd) also on the right lip down to right ankle. (iii) Burn injury on the left thigh (lower 2/3rd), left lip with blisters. (iv) Burn injury 10 cm X 3 cm on left fore arm on the outer aspect of wrist joint. (v) Burn mark 15 cm X 4 cm on right fore arm on outer aspect of wrist joint with blisters.” (7) On internal examination, uterus found containing GRAVID of 14 weeks. PW5 Dr. Mayank Upadhyay has stated that on completion of post mortem examination the team of doctors reached the conclusion that the deceased had died of asphyxia. In the Autopsy Report, cause of death is mentioned as asphyxia as a result of hanging. From the medical evidence on record, it is established that Jasoda Devi died unnatural death. Now we have to examine whether the accused-appellants 6 committed cruelty against Jasoda Devi, which led her to her unnatural death. (8) PW1 Gaje Singh (father of the deceased) has stated that his daughter Jasoda Devi got married to accused Harish Chandra Singh about five years before her death. He has specifically stated that after her marriage with accused-appellant Harish Chandra Singh whenever she used to come to her parental house she told that her husband used to demand ` 30,000/-. The witness has further stated that on 29.9.1999 accused-appellant Harish Chandra Singh came to him at 10.00 AM and told him that Jasoda Devi is not in his house and asked the witness (PW1) to make search for her. PW1 Gaje Singh further narrates that on next day i.e. 30.9.1999 one Chait Singh (uncle of Harish Chandra Singh) came to his village and told that Jasoda Devi had committed suicide by hanging. The witness further states that thereafter he went to the village Harsari and saw body of her daughter hanging from a branch of oak tree but her legs were touching ground. He suspected that his daughter has been murdered. PW1 Gaje Singh proved the fact that he lodged First Information Report (Ext. A1) against accused Harish Chandra Singh and his mother Shankari Devi. Witness was subjected to lengthy cross-examination but nothing has come out in his testimony which creates reasonable doubt in his statement. (9) PW3 Mathura Devi (mother of the deceased) has also corroborated the prosecution story as narrated by her husband Gaje Singh (PW1) and has stated that her daughter Jasoda Devi whenever came to her parental house told her that her husband and mother in law demanded ` 30,000/-. She has further stated that since economic condition of her husband was not good, as 7 such it was pleaded that they be allowed to pay the amount in installments. She has also corroborated the fact that a day before her son in law came and told that Jasoda Devi is not in his house. PW4 Savitri Devi (aunt of the deceased) has also corroborated the prosecution story. (10) Learned Amicus Curiae drew attention of this Court to the statement of PW1 Gaje Singh (father of the deceased), who has stated that it was the husband who made demand of dowry. He has not named appellant no.2 Shankari Devi with regard to demand of dowry of ` 30,000/-. On careful scrutiny of evidence on record, we find that regarding the demand of dowry made by appellant no.2 Shankari Devi, the evidence of PW1 and PW2 is not consistent. As to whether, acts of cruelty also PW1 Gaje Singh has made allegation, only as against appellant no.1 Harish Chandra Singh. In the circumstances, we find that though the prosecution has successfully proved charge of offence punishable under Sections 498A and 304B IPC against appellant no.1 Harish Chandra Singh but it cannot be said that the charge has been proved beyond reasonable doubt as against appellant no.2 Shankari Devi. Sri Pradeep Hairiya learned Amicus Curiae further pointed out that there is inconsistency in the injuries mentioned in the Inquest Report and one mentioned in the post mortem report. The number of injuries mentioned in the post mortem report are more as compared to the injuries mentioned in the Inquest Report. However, on scrutiny of the evidence we do not find it a material contradiction for the reason that at the time of preparing Inquest Report, Naeb Tehsildar was not supposed to undress the deceased to mention all the external injuries on the body. 8 (11) For the reasons as discussed above, we are of the view that appeal of Harish Chandra Singh is liable to be dismissed and that of appellant no.2 Shankari Devi deserves to be allowed, giving her benefit of reasonable doubt. Therefore this appeal is accordingly disposed of. Conviction and sentence recorded by trial court under Sections 304B IPC and 498A IPC, recorded against the appellant no.2 Shankari Devi, is set aside. She is acquitted of the charge, giving her benefit of reasonable doubt. However, conviction and sentence recorded by trial court against accused-appellant no.1 Harish Chandra Singh in respect of offence punishable under Sections 304B and 498A IPC is affirmed. He is on bail. His bail is cancelled. (12) Let lower court record be sent back to make appellant no.1 Harish Chandra Singh serve out the sentence awarded by the trial court. (Sudhanshu Dhulia, J.) (Prafulla C. Pant, J.) 22.6.2011 Kuldeep