RESERVED JUDGEMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 1554 of 2001 (Old No. 1197 of 1998) Sher Singh .…. Appellant/Accused Versus State of U.P. …………… Respondent June 18, 2010 Mr. Rajendra Kotiyal, Advocate for the appellant. Mr. Prabhakar Joshi, Brief Holder for the State/respondent. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellant u/s 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the judgment and order dated 24.6.1998 passed by the Sessions Judge, Tehri Garhwal in Sessions Trial No. 9/1994, State v. Sher Singh & Anr., whereby the accused appellant Sher Singh has been convicted under Section 498-A and 304-B of Indian Penal Code, 1860 (for short, IPC) and sentenced to R.I. for one year u/s 498-A IPC and 7 years’ R.I. u/s 304-B IPC. Both the sentences have been directed to run concurrently. However, accused appellant was acquitted of the charge for the offence punishable u/s 201 IPC. Co-accused Avtar Singh has been acquitted by the trial court for the charge of offence punishable u/s 498-A, 304-B & 201 IPC. 2. The prosecution case, in brief, is that PW1 Alam Singh moved an application Ex. Ka-1 against the accused appellant Sher Singh, his wife Smt. Gavri and other accused persons before the District Magistrate, Tehri Garhwal on 19.9.1992 with the averments that in December, 1988 his daughter Smt. Kapuri was married to Sarop Singh, son of accused appellant Sher Singh as per Hindu rites. Sarop Singh was doing service in Mumbai 2 and his daughter Smt. Kapuri was living along with her in-laws in their house. Accused appellant Sher Singh, his wife Smt. Gavri and his son were harassing his daughter in connection with the demand of dowry and threatened her that she was not fit for them and if she would not bring the dowry and gold ornaments, they would not allow her to live in their house. Due to this reason, she was not given food and clothes and ultimately she had to take shelter in the house of the complainant in the month of December, 1990. It was further averred that in December, 1991 husband of Smt. Kapuri came along with his brother-in-law Surjan Singh at the house of complainant and took her along with them on their responsibility. His daughter had told them at that time that the brother of her husband and her in-laws had threatened her that their son was in a good service and she was not fit for him due to being uneducated and if she would not bring the gold ornaments and other articles in dowry, they would kill her and thereafter they shall perform second marriage of their son. But her husband and brother-in-law of her husband taken full responsibility for keeping her well. On 21.8.1992 on the occasion of Janmastami, when his daughter Smt. Kapuri came to her maternal house, she told the complainant and other family members that her in-laws and her brother-in-law (devar) were extremely harassing her with intention to turn her out of the house, but the complainant sent her again to her in-laws house after convincing her. It has also been averred by the complainant that three years ago, the accused appellant had bought a buffalo from him and had agreed to pay five thousand for the same. But when the complainant demanded the aforesaid money from the accused appellant, he asked him to adjust it towards the dowry otherwise take her daughter back. It is also stated in the application that all the accused in collusion with each 3 other had intentionally killed his daughter on 12th or 13th September and thereafter they had also cremated her dead body to finish the evidence with a view to screen themselves from the legal punishments and the complainant received this information from Bachan Singh (PW5) on 17.9.1992. He has further stated that on the basis of aforesaid averments he had full doubt that the accused appellant and other accused persons had murdered his daughter Smt. Kapuri and thereafter also cremated her dead body with intention to screen themselves from the legal punishment. 3. On the aforesaid application Ex. Ka-1, the then Addl. District Magistrate, Tehri Garhwal directed the Supervisor Kanoongo, Dangi, Nailchami to register and investigate the case. Thereafter on 22.9.1992 the Supervisor Kanoongo directed Patwari, Kathoor for registering a case and also for investigating it by the competent officer. Thereupon, on the same day i.e. on 22.9.1992 at 5.30 pm, Sri Rameshwar Prasad Bhatt, Patwari prepared the chick FIR Ex. Ka-2 on the basis of written report Ex. Ka-1. He also made the necessary entries in the GD. Copy of GD is Ex. Ka-3. Investigation of this case was entrusted to PW7 Mohan Singh, the then Kanoongo of Dangi (In rural hilly areas of State of Uttarakhand, the Patwaris and certain revenue officials are vested with police powers vide U.P. Govt. Notification No. 494/VIII-418-16 dated 7/3/1916). During the course of investigation, the I.O. recorded the statements of the witnesses and also inspected the place of occurrence and prepared the site plan Ex. Ka-4 Thereafter the investigation was transferred to PW8 Madho Singh, Naib Tehsildar, Jakholi, who during the course of investigation also recorded the statements of the witnesses and after completing the investigation, filed the 4 chargesheet Ex. Ka-5 against the accused appellant and the co-accused (acquitted by the trial court). 4. Learned Munsif Magistrate, Tehri after giving the necessary copies of the documents to the accused appellant and the co-accused (acquitted by the trial court) as prescribed under Section 207 Cr.P.C., committed the case to the Court of Sessions on 30.3.1994. 5. On 17.5.1994, learned Sessions Judge, Tehri Garhwal framed the charges against the accused appellant and the co-accused (acquitted by the trial court) under Section 304-B, Section 498-A and Section 201 IPC. The charges were read over and explained to them, who pleaded not guilty and claimed to be tried. 6. To prove its case, prosecution has examined PW1 Alam Singh, the complainant and father of the deceased; PW2 Mamraj Singh; PW3 Bhagwan Singh; PW4 Mor Singh; PW5 Bachan Singh; PW6 Dr. SS Rajpoot; PW7 Mohan Singh, Kanoongo and PW8 Madho Singh, Naib Tehsildar. 7. Thereafter, statements of the accused appellant and the co-accused (acquitted by the trial court) were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to them in question form, who denied the allegations made against them and stated that they have been falsely implicated in the case. However, in defence, they did not produce any documentary or oral evidence. 8. After hearing learned counsel for the parties and appreciating the evidence on record, the learned Sessions Judge, Teri Garhwal vide his judgment and order dated 24.6.1998 convicted and sentenced to the accused 5 appellant as discussed above. Against the aforesaid judgment and order dated 24.6.1998, the present appeal has been preferred. 9. To prove its case, the prosecution has examined PW1 Alam Singh, the complainant and the father of the deceased, who has stated that his daughter Kapuri was married to Sarop Singh, son of the accused appellant. Sarop Singh was doing service in Mumbai. Smt. Kapuri was living with her in-laws. Smt. Kapuri was being harassed by his father-in-law in connection with the demand of dowry and he used to say that if she would not bring sufficient dowry, then she would be ousted from the house and would be killed and he would perform second marriage of his son. This witness has further stated that when he was about to send her daughter to her in-laws house after convincing her, at that time accused appellant Sher Singh came and asked him to give his buffalo to him in rupees five thousand. He gave the buffalo. After sometime the accused appellant told him that the money agreed to be given for the said buffalo has been adjusted by him towards the dowry. When the accused appellant did not give food and clothes to Smt. Kapuri and was torturing her for the dowry, then Smt. Kapuri returned to the house of the complainant after two years of marriage and stayed there for one year. His daughter told him that she could not go to the house of her in-laws as she could not remain hungry. After one year, Sarop Singh, husband of Smt. Kapuri and his brother-in-law Surjan Singh came to the house of the complainant and took her along with them on their complete responsibility and told that she would be given food and clothes and shall not be harassed. Again when his daughter came on the occasion of Janmastami, she told that her father-in-law Sher Singh (accused appellant) was harassing her, but he sent her 6 back to her in-laws house after convincing her and one month thereafter, Bachan Singh told him that three days ago, his daughter was murdered and her dead body was also cremated. Thereafter he moved an application Ex. Ka- 1 on which the investigation was ordered and the case was registered. This witness was cross-examined at length by the defence counsel but nothing has come out in his statement which may create any doubt about his deposition. 10. PW2 Mamraj Singh, uncle of deceased Kapuri has also corroborated the statement of PW1 Alam Singh. 11. PW3 Bhagwan Singh, brother of the deceased has stated that his sister Kapuri was married to Sarop Singh. She used to often visit her maternal home after the marriage. She used to complain that she was scolded in her in-laws house that her father had given nothing in dowry and unless she would bring the gold ornaments, she would not be allowed to live there and would be killed. She remained at her maternal home for one year. Thereafter Sarop Singh and Surjan Singh came to take her back and assured that she would not be harassed. Thereafter her husband Sarop Singh went to join his service. But accused appellant Sher Singh continued to torture her. When Smt. Kapuri again came to her maternal house on the occasion of Janmastmi, she told that she is being threatened time and again that her father-in-law would kill her. His fellow villager Bachan Singh had informed him that Smt. Kapuri was killed and her dead body was also cremated. He has further stated that on this information, he went to the village of accused appellant where he enquired from Jabar Singh, who told him that he heard noise of screaming when he was cutting the grass. When he came down via kachha bridge he saw 7 a dead body near gar (culvert) and saw that the accused appellant was going towards Goshala and then he enquired about the dead body from Sher Singh, who became perplexed. Sher Singh asked him to call Mor Singh (PW4) from the village. Thereafter when he returned with Mor Singh, Sher Singh was sitting along with dead body. Blood was oozing out from the right side of head of the dead body. This witness also could not be shaken in his cross-examination. 12. PW4 Mor Singh has stated that the accused appellant was known to him. The incident is of 14.9.1992 when Jabar Singh came at his shop and told him that wife of Sarop Singh, son of Sher Singh had drown after falling into the river and he had come from his house. Sher Singh was not at his house and had gone to Akhori and thereafter Jabar Singh again went to the house of Sher Singh. This witness has further stated that when he reached at the Chan of Sher Singh, he could not found either Sher Singh or Jabar Singh. They returned after 30- 45 minutes. Smt. Kapuri and other people were also there. The condition of Smt. Kapuri was very serious. He asked Sher Singh to call the doctor. At that time, Smt. Kapuri was alive and she was crying in pain. He has further stated that doctor had not come in his presence. He had returned to his house. 13. PW5 Bachan Singh has stated that Smt. Kapuri was known to her who was married to son of Sher Singh about 4 years prior to her death. She often used to visit her maternal home and once she stayed for a year in her maternal home. When he asked Smt. Kapuri as to why she was not going to her in-laws house then she told him that she was ousted from the house of her in-laws because of the reason that she had not brought sufficient 8 dowry. Subsequently she had gone to her in-laws house and thereafter he came to know that she was dead. Prem Singh and Madan Singh had come to his house who had informed him that daughter of Alam Singh (Smt. Kapuri) had drown into the river and died. Thereafter he transmitted this information to Alam Singh. 14. PW6 Dr. SS Rajpoot has stated that in 1988-89 he was posted in Govt. Ayurvedic Hospital, Kuthar. One Jeeta Singh had come to call him on 14.9.1992, who told him that a woman had become unconscious after drowning into the river. It was raining in the night and he had to travel 7-8 kms and since there was no means of transport available, therefore, he advised him to bring her to the hospital. Jeeta Singh did not reply and even the said woman was not brought to the hospital. 15. PW7 Mohan Singh has stated that in September, 1992 he was posted as Kanoongo, Dangi. This witness has proved the chick FIR Ex. Ka-2 and the entry in the GD of the case which was prepared by Patwari Sri Rameshwar Prasad Bhatt on the basis of written report of the complainant Ex. Ka-1. He has further stated that thereafter he started the investigation. During the course of investigation, he recorded the statements of the witnesses and also inspected the place of occurrence and prepared the site plan Ex. Ka-4. Thereafter investigation was transferred to Naib Tehsildar, Jakholi. 16. PW8 Madho Singh has stated that in 1992, he was posted as Naib Tehsildar, Jakholi. On 30.9.1992, the investigation of this case was transferred to him. During the course of investigation, he recorded the statements of the witnesses and after completing the investigation, he 9 filed the chargesheet Ex. Ka-5 against the accused appellant and the co-accused (acquitted by the trial court). 17. Thereafter, statements of the accused appellant and the co-accused (acquitted by the trial court) were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to them in question form, who denied the allegations made against them and stated that they have been falsely implicated in the case. However, in defence, they did not produce any documentary or oral evidence. 18. Learned Counsel for the accused appellant argued that on the basis of the evidence discussed above, the case against the accused appellant for the offence punishable u/s 304-B and 498-A IPC is not proved beyond reasonable doubt by the prosecution. I do not find any substance in the argument of learned Counsel for the accused appellant. 19. The accused appellant has been convicted u/s 304-B and 498-A IPC keeping in view the provisions of Section 113-B of the Indian Evidence Act and, therefore, before any further discussion, it would be appropriate to quote these sections for the sake of convenience and the same are reproduced as under: Section 304B and 498A of IPC: “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. 10 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 extend to imprisonment for life. 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 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. Section 113-B of The Indian Evidence Act: 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 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).” 20. The evidence adduced on record has to satisfy the necessary ingredients provided under the aforesaid 11 sections of IPC for sustaining the conviction and in the aforementioned factual backdrop, I have to consider as to whether a case has been made out for conviction of the appellant under the aforesaid sections of IPC. 21. The essential ingredients for proving the offence under Section 304-B IPC are (i) death of a woman must have been caused by any burns or bodily injury or otherwise than under normal circumstances; (ii) such death must have occurred within seven years of marriage; (iii) soon before her death she was subjected to cruelty or harassment by her husband or relative of her husband; (iv) such cruelty or harassment must be in connection with the demand of dowry; and (v) such cruelty is shown to have been meted out to the woman soon before her death. 22. The significant words are “burns or bodily injury or otherwise than under normal circumstances”, “within seven years of marriage” and “soon before her death”. The main ingredient of Section 498-A IPC is also the act of cruelty by the husband or the relative of the husband of a woman. 23. Undisputedly, the deceased died within four years of her marriage and she did not die under normal circumstances. Now, in order to prove the offence u/s 304-B and 498-A IPC against the accused appellant, who was the father-in-law of the deceased, it was thus necessary for the prosecution to establish that soon before her death, the deceased must have been subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry. 12 24. So far as another condition of cruelty or harassment of the deceased soon before her death is concerned, it has come in the evidence of PW3 Bhagwan Singh that Jabar Singh had told him that on the date of incident he heard the noise of screaming and when he went near the dead body, he saw that blood was oozing out from the right side of head of the dead body. PW4 Mor Singh has also stated that the condition of Smt. Kapuri was very serious on the date of incident and she was crying in pain. These circumstances clearly indicates that deceased Kapuri was subjected to cruelty and harassment soon before her death. But now the question arises as to whether she was subjected to cruelty for any demand of dowry. 25. As regards the demand of dowry by the accused appellant, it is undisputed that the deceased was living with her in-laws i.e. along with the accused appellant and her husband was living in Mumbai where he was serving. It has come in the statement of PW1 Alam Singh (father of the deceased) as well as in the statements of PW2 Mamraj Singh and PW3 Bhagwan Singh that the accused appellant Sher Singh was demanding gold ornaments and other articles in dowry. The deceased Kapuri always complained to his father (PW1) and other family members that the accused appellant was demanding dowry and she was not given even the food and clothe and, therefore, she had to take shelter in the house of her father where she lived for one year. She returned to her in-laws house when her husband came to take her and gave assurance that she would not be harassed anymore and took full responsibility of keeping her well. But thereafter when Smt. Kapuri came to her maternal house on the occasion of Janmastami, she again complained that she was being harassed by the accused appellant for dowry but she was sent back to her in-laws house after convincing her by his 13 father. One month thereafter she died. As such, demand of dowry and harassment is proved against the accused appellant Sher Singh who often used to ask the deceased Smt. Kapuri to bring gold ornaments and other articles from her father. He had also purchased a buffalo in rupees five thousand from the father of the deceased Alam Singh (PW1) but subsequently refused the pay the said amount and said that the same has been adjusted towards dowry. The deceased Smt. Kapuri had to live in her maternal house for one year after her marriage because of the aforesaid harassment by the accused appellant. 26. The aforesaid conduct of accused appellant Sher Singh shows that the deceased was physically and mentally tortured by him for the demand of dowry which resulted in her death and she was subjected to cruelty and harassment soon before her death as she died under abnormal circumstances and blood was oozing out from her head and she was crying in pain because of her serious condition as has been discussed above. The accused appellant did not immediately inform the parents of deceased and the dead body was cremated. Therefore, the learned trial court has rightly held it as a case of dowry death in view of the provisions contained under Section 113-B of the Indian Evidence Act. 27. In view of my foregoing discussion, it is clear that the prosecution has proved all the necessary ingredients of the offence punishable under Section 498-A and 304-B IPC against the accused appellant Sher Singh beyond reasonable doubt to sustain his conviction under the aforesaid sections. As such, the impugned judgment and order of the trial court is correct and justified and it warrants no interference by this Court. 14 28. In the result, the appeal being devoid of merit is hereby dismissed. Judgment and order dated 24.6.1998 passed by the Sessions Judge, Tehri Garhwal in Sessions Trial No. 9/1994, State v. Sher Singh & Anr. is hereby upheld. The conviction of the accused appellant Sher Singh under Section 498-A and 304-B IPC is upheld and the sentence awarded to him to undergo R.I. for one year u/s 498-A IPC and R.I. of seven years under Section 304- B IPC is affirmed. Both the sentences shall run concurrently. However, the period during which he was in jail during investigation, trial and appeal shall be adjusted after verifying the same from the records. Appellant is on bail. His bail bonds are cancelled.