IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.294/2001 (Old No.1105/1993) Kishan Ram ……… Appellant Versus The State ……… Respondent Dated: December 18, 2008 Sri Lokendra Dobhal, learned counsel for the appellant. Sri Prabhakar Joshi, learned brief holder for the State. HON. DHARAM VEER, J. This 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 24-6-1993 passed by Sessions Judge, Pithoragarh in Sessions Trial No.30/1992, State Vs. Kisan Ram and others, whereby the learned Sessions Judge has convicted the appellant/accused Kishan Ram for the offences punishable u/s 306/498-A The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.). Appellant/accused was sentenced to undergo five years’ R.I. and to pay a fine of Rs.2000/- and in default of payment of fine, four months’ further R.I. was awarded u/s 306 I.P.C. He was further sentenced to 18 months’ R.I. and to pay a fine of Rs.1000/- u/s 498-A I.P.C and in default of payment of fine, further two months’ R.I. was awarded under Section 498-A I.P.C. It was also directed that both the sentences shall run concurrently. 2. I have heard Sri Lokendra Dobhal, learned counsel for the appellant/accused and Sri Prabhakar Joshi, learned brief holder for the State and perused the entire material available on record. 2 3. In brief the prosecution story is that on 13-5- 1992 Mani Ram (father of the appellant-accused Kishan Ram) has lodged a report (Ex.Ka-9) before the Patti Patwari, Manmanle that his daughter-in-law Haru Devi has died at about 5 a.m. due to the burn injuries. On the basis of this report, Patwari, Harish Chandra Punetha (P.W.6) has prepared inquest report i.e. Ex.Ka-1 on 14-5- 1992. Along with the inquest report, other documents viz. sample of seal i.e. Ex. Ka-11, sketch of dead body i.e. Ex.Ka-12, Police Form No.13 i.e. Ex. Ka-13 and Police Form No.33 i.e. Ex.Ka-14 were also prepared. Then the dead body of Smt. Haru Devi was sent for the post mortem. The post mortem of the dead body was conducted on 14-5-1992 by two doctors viz. Dr. M.D. Bhatt and Dr. D.C. Pant and the post mortem report i.e. Ex.Ka-15 was also prepared. The Village Pradhan P.W.1 Ram Singh has recorded the statement of the deceased Smt. Haru Devi in presence of 13 persons including the Pradhan Ram Singh P.W.-1 and Bhupal Singh P.W.-2, i.e. Ex.Ka-2. On 14-5-1992, Mohan Ram (P.W.-5) brother of the deceased Smt. Haru Devi lodged a report before Patwari, Manmanle with the averments that his elder sister Haru Devi was married before 5-6 years with the appellant-accused Kishan Ram. Just after the marriage and till the death, the appellant-accused Kishan Ram, his father Mani Ram and sister-in-law (NANAD) and appellant’s uncle Kunwar Ram was harassing his sister for the demand of dowry and for some other reasons. It was also stated that for a number of times, these people had beaten his sister and whenever she came at her parental house so as to save her life, then at every point of time, she used to narrate the above said facts. It was also stated that the complainant and his family members also persuaded husband of her sister and his other relatives not to harass Haru Devi, but all was in vain. It 3 was further stated that the appellant-accused Kishan Ram also threatened Haru Devi to kill her. The complanaint further averted that on 13-5-1992, two persons namely Ganesh Ram and Shyamu Ram of the Village Galat came at his (Mohan Ram) house (brother of the deceased Haru Devi) and told him that his sister Haru Devi is vomiting blood and they also asked him to send his mother if he wanted to see his sister alive. However, the mother of the deceased being an old and sick lady could not go on the place of occurrence. Due to this reason, he himself along with his cousin Rajendra Ram, his eldest sister Sita Devi had gone to the village Galat then they came to know that Haru Devi was either murdered by her husband and relatives or she herself has committed suicide due to the harassment committed by the aforesaid persons. With the same averments, the FIR was lodged by P.W.5 Mohan Ram on 14.5.1992 at 4:30 P.M. with Patwari Manmanle, that F.I.R. is Ex.Ka-3. On the basis of this F.I.R., the Patwari has prepared a Chick F.I.R., i.e. Ex. Ka.4. ( In Rural Hilly Areas of State of Uttarakhand, the Patwaris and certain Revenue Officials are being vested with the police powers vide U.P. Govt. Notification No. 494/VIII-418-16 dated 7-3-1916). During the course of investigation, the Patwari/Investigating Officer has prepared the site plans of the place of occurrence, which are Ex.Ka-5 and Ex.Ka- 6. The I.O. also prepared Fard of the place of occurrence i.e. Ex. Ka-7. He has also taken the possession of Jerican of the Kerosene Oil which was given by appellant-accused and prepared a Fard i.e. Ex. Ka-8. During the course of investigation, the Patwari has recorded the statements of the witnesses and after completing the investigation, he filed charge sheet against the appellant-accused Kishan Ram and other co-accused Mani Ram and Kunwar Ram 4 (acquitted by the trial court) under Section 498-A and 306 I.P.C., that chargesheet is Ex. Ka-10. 4. It appears that after receiving the charge sheet, learned Munsif Magistrate, Pithoragarh has committed the case to the Court of Sessions on 15-9-1992 after giving necessary copies to the appellant/accused and another co-accused as required u/s 207 Cr.P.C. 5. Learned Sessions Judge, Pithoragarh has framed the charge against the appellant-accused Kishan Ram and the co-accused Mani Ram and Kunwar Ram (acquitted by the trial court) on 25th January, 1993 under Sections 306/498-A I.P.C. The charge was read over and explained to the appellant-accused and other co-acused persons, who pleaded not guilty and claimed to be tried. 6. To prove its case the prosecution has examined P.W.-1 Ram Singh, P.W.-2 Bhupal Singh, P.W.- 3 Indra Devi ( Mother of the deceased Haru Devi ), P.W.-4 Sita Devi ( Sister of the deceased Haru Devi), P.W.-5 Mohan Ram ( Brother of the deceased Haru Devi ), P.W.-6 Harish Chandra Punetha, Patwari ( Investigating Officer of the case ) and P.W.-7 Constable Mohan Lal who has proved the charge sheet filed by Sub-Inspector Surat Singh. 7. After that the statements of the appellant- accused Kishan Ram and other co-accused namely Mani Ram and Kunwar Ram were recorded under Section 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who have denied the allegations made against each of them. However in defence, they did not produce any oral and documentary evidence. 5 8. After hearing learned counsel for the parties and examining the entire evidence available on record, the learned Sessions Judge, Pithoragarh vide his judgment and order dated 24th June, 1993 convicted and sentenced the appellant/accused as discussed above. Feeling aggrieved by the said judgment and order, the appellant/accused Kishan Ram has preferred the present appeal. 9. Before further discussion, it is pertinent to mention the ante-mortem injuries found on the dead body of the deceased Smt. Haru Devi, whose post mortem was conducted by Dr. M.D. Bhatt and Dr. D.C. Pant on 14-5-1992 at about 2.45 p.m. The ante-mortem injuries recorded in the post-mortem report (Ex.Ka-15) are reproduced as below: - “Anterior half of skull ; hair burnt with singeing and eye lids and eyebrows also singied. Back of skull hairs normal. Skin over whole face, Neck, Trunk and both extremities concluding genital burnt of anteriorily and posteriorily except back of trunk between Scapular blades and waist. Skin beneath pealled off, parts colour is redish. Colour of burnt skin could not be determined because whole body is painted with Genital voilet. Total percentage of burn is about 90%.” In the opinion of the doctors, the cause of death is due to shock as a result of ante-mortem extensive burn. The genuiness of the post-mortem report (Ex.Ka-15) was admitted by the defence counsel, hence it can be read into evidence as per Section 294 of Cr.P.C. 10. To prove its case, the prosecution has examined P.W.1 Ram Singh, who has stated that the appellant/accused Kishan Ram and co-accused Mani Ram and Kunwar Ram (acquitted by trial court) were well-known to him who belonged to his village. Deceased 6 Haru Devi was the wife of Kishan Ram and he (Ram Singh) is the Pradhan of Village Galat. On the date of the incident, Mani Ram has come to him along with Shyamu Ram and he informed him that his daughter-in-law Haru Devi has received burn injuries. On this information, he along with Bhupal Singh and another Ram Singh have reached on the place of occurrence and saw that Smt. Haru Devi was lying in burnt condition. Haru Devi was alive at that time and she was in her senses and she was talking. Then he asked her (Haru Devi) what happened, then she replied that she was trying to commit suicide but she could not die. After that she was taken to the Manmanle Hospital on a cot but the doctor was not there and ward boy Ganesh Ram has applied the medicine on the deceased Haru Devi. After that on the next day, they were planning to take Haru Devi at Pithoragarh for treatment, then one person had informed him that Haru Devi had died. After that one person was sent to the Patwari and two persons was sent to the parental house of Haru Devi for giving information of her death. Then Patwari has come on the place of occurrence on 13-5- 1992 and prepared the Inquest Report, that Inquest Report is Ex. Ka-1. When he asked Haru Devi about the reason of the burn injuries, then other people was also there and her statement was recorded by him on a paper and the people who were present there they have also signed on that paper, that paper is in his own hand writing i.e. Ex. Ka-2. He has further stated that Haru Devi was married to the Kishan Ram before 5-6 years of the said incident and his house is at a distance of about one kilometre from the house of the appellant/accused. This witness was cross-examined at length by the defence counsel but nothing has come out from his statement which may create doubt in his statement. The statement of this witness is reliable and believable. 7 11. P.W.-2 is Bhupal Singh, who has stated that the appellant/accused Kishan Ram and co-accused Mani Ram and Kunwar Ram were well known to him and the deceased was the wife of appellant/accused Kishan Ram. Kishan Ram was in service and now he has come on pension. He has recevied information that Haru Devi had received burn injuries. On this information he also reached on the place of occurrence. The village Pradhan and other people of the village were also there. The village Pradhan has asked from her about the reason of her burn injuries then she (Haru Devi) told that she wanted to commit suicide. Then the Pradhan prepared a paper on the spot and he has also signed on that paper i.e. Ex.Ka.2. He has also signed on the inquest report, the inquest report is Ex. Ka-1. This witness was cross- examined at length by the defence counsel but nothing has come out from his statement which may create doubt in his statement. The statement of this witness is reliable and believable. 12. P.W.-3 is Smt. Indra Devi (mother of the deceased Haru Devi), who has stated that the appellant/accused Kishan Ram and the co-accused Mani Ram and Kunwar Ram were well known to her and deceased Haru Devi was her daughter. Before 5-6 years of the said incident, Kishan Ram was married with her daughter Haru Devi. Kishan Ram was in the Army, who came on pension on the recommendation of the Medical Board. Kishan Ram used to beat her daughter (Haru Devi), and her daughter was deprived of meals at once for three days and appellant/accused Kishan Ram also caused injuries on her head with Bariath ( a weapon like a sickle). She has further stated that whenever her daughter Haru Devi used to visit her house, she used to tell her that Kishan Ram commits Marpeet with her and 8 he also harass her. Kishan Ram has also caused injury in the eyes of Haru Devi due to which blood oozed out from her eyes. Kishan Ram also used to take liquor and after taking liquor, he used to commit ‘Marpeet’ with her daughter Haru Devi. When her daughter Haru Devi used to complain this matter with Mani Ram and Kunwar Ram, then they asked her to go back to Kishan Ram because Mani Ram and Kunwar Ram were living separately with Kishan Ram and Haru Devi. Kisan Ram was torturing Haru Devi for getting dowry from her parental house and due to these harassments, Haru Devi committed suicide. This witness was also cross-examined at length by the defence counsel but nothing has come out from her statement which may create doubt in her statement. The statement of this witness is also relaible and believable. 13. P.W.-4 is Smt. Sita Devi (sister of the deceased Haru Devi), who has stated that her sister Haru Devi was married with Kishan Ram before 5-6 years of the said incident. Whenever her sister Haru Devi visit to her parental house, then she used to tell that Kishan Ram is misbehaving with her and also committing Marpeet with her. When P.W.-4 asked her sister Haru Devi about the reason of harassment, then she told her that Kishan Ram is demanding dowry and due to this reason the appellant /accused is committing ‘Marpeet’ with her. She has further stated that when her sister complained to Mani Ram and Kunwar Ram, then they also asked her to go back to Kishan Ram. Kishan Ram was also telling Haru Devi for getting dowry from her parental house and due to this harassment, Haru Devi has committed suicide. This witness was also cross-examined at length by the defence counsel but nothing has come out from her 9 statement which may create doubt in her statement. The evidence of this witness is also reliable and believable. 14. P.W.-5 is Mohan Ram (brother of the deceased Haru Devi), who has stated that his sister was married with the appellant/accused before 5-6 years to the said incident. He has further stated that the appellant/ accused was committing ‘Marpeet’ with his sister and also used to tell her that her parents gave nothing in dowry and due to this reason the appellant/accused was committing ‘Marpeet’ with his sister Haru Devi. Whenever the appellant/accused was doing ‘Marpeet’ with his sister, then his sister used to come at her parental house and also used to tell about the harassment and ‘Marpeet’ committed with her by the appellant/accused and other family members. He has further stated that when his sister complained to Mani Ram and Kunwar Ram, then they have also told her to go back to Kishan Ram. He has further stated that his sister has come to her parental house about six times after the marriage and before her death and due to the ‘Marpeet’ committed by the appellant/accused, his sister has committed suicide. He has further stated that about the said incident, he has also lodged a report on 14-5-1992 that report is Ex. Ka-3. He has further stated that whatever the money Kishan Ram had received from Army, that he had wasted in the liquor and when her sister asked Kishan Ram not to drink liquor, then he used to commit ‘Marpeet’ and used to ask her to get money from her parental house. This witness was also cross-examined at length by the defence counsel but nothing has come out from his statement which may create doubt in her evidence. The evidence of this witness is reliable and believable. 10 15. P.W.-6 is Harish Chandra Punetha (Investigating Officer & Patwari), who has stated that on 14-5-1992 he was posted as Patwari in Manmanle. He has received the report i.e. Ex. Ka-3 on 14-5-1992 and on the basis of the report, he prepared a Chick F.I.R. i.e Ex.Ka-4 and after that he has started the investigation. During the course of investigation, he inspected the place of occurrence and prepared the site plan i.e. Ex. Ka-5. He has also prepared the Inquest Report i.e. Ex.Ka-1. Along with the Inquest Report, he also prepared Photo-Lash and Chalan-Lash. The Village Pradhan has also given him the statement recorded by him in presence of other villagers, i.e. Ex. Ka-2. He has further inspected the place of occurrence on 15-5-1992 and also prepared the site plan again, i.e. Ex. Ka-6. He has also prepared the Fard of the place of occurrence i.e. Ex. Ka-7. He has also taken a jerican of Kerosene Oil in his possession and prepared a Fard i.e. Ex. Ka-8. During the course of investigation, he has recorded the statement of the witnesses after that the investigation was transferred to the Kanungo. He has prepared the inquest report on the basis of the report given by Mani Ram, i.e. Ex. Ka-9. 16. P.W.-7 is Constable Mohan lal, who has stated that the Sub-Inspector Surat Singh was known to him and he saw Surat Singh while writing and reading. He was posted along with him as his subordinate. Sub- Inspector Surat Singh Chauhan has been transferred to some other district. After receiving the case diary which was written by S.I. Surat Singh Chauhan, the Investigating Officer has recorded the statement of Ram Singh, Bhupal Singh, Indra Devi, Sita Devi, Mohan Ram etc. in between 30-6-1992 to 8-8-1992 and after completing the investigation, the Sub-Inspector Surat Singh Chauhan has filed a charge sheet i.e. Ex. Ka-10. 11 17. After that the statements of appellant/accused and other co-accused were recorded under Section 313 Cr.P.C. The oral and documentary evidence was put to the appellant/accused and other co-accused in question form and each of them has denied the allegations made against them. However, in defence, they have not produced any oral or documentary evidence. 18. Sri Lokendra Dobhal, learned counsel for the appellant/accused has argued that on the basis of the evidence discussed above, the prosecution has not proved its case beyond reasonable doubt against the appellant/accused under Section 306 and 498-A I.P.C. I do not find any substance in the argument raised by the learned counsel for the appellant due to the following reasons : - (i) That Smt. Haru Devi has committed suicide in the house of appellant/accused Kishan Ram in the night of 12-5-1992 by way of burn injuries and even the half-tin of the kerosene oil was also recovered on the spot by the Investigating Officer and Fard in this regard was also prepared i.e. Ex. Ka-8. Smt. Haru Devi had died in the morning of 13-5-1992 at about 5 a.m. and before that Mani Ram and Shyamu Ram had also come to inform the village Pradhan P.W.-1 Ram Singh. The villagers, P.W.1 Ram Singh and P.W.-2 Bhupal Singh have also reached on the place of occurrence and before them the Haru Devi (deceased) who was in senses at that time, has given her statement that she wanted to commit suicide but she could not die. Then the village Pradhan has also prepared a paper i.e. Ex. Ka-2 which was also signed by the other villagers and also by P.W.-2 Bhupal Singh, in which deceased has given the statement that she herself has poured kerosene oil on her body and tried to commit a suicide. A perusal of the said document Ex. Ka-2 reveals 12 that the deceased has committed a suicide by pouring kerosene oil on herself and that document was also proved by P.W.-1 Ram Singh and P.W.-2 Bhupal Singh. (ii) The post mortem report i.e. Ex. Ka-15 also proves that the deceased Smt. Haru Devi has died due to shock as a result of ante-mortem extensive burn. From the statement of P.W.-1 Ram Singh and P.W.-2 Bhupal Singh and the post mortem i.e. Ex. Ka-15, the genuineness of which was admitted by the defence counsel and which may be read into the evidence as per Section 294 Cr.P.C., proves that the deceased Smt. Haru Devi has committed suicide by burning after pouring kerosene oil on herself. (iii) P.W.-3 Smt. Indra Devi has stated that the marriage of the deceased Haru Devi was solemnized with the appellant/accused before 5-6 years of the said incident and the appellant/accused has come on the pension by the recommendation of the Medical Board of Army. Kishan Ram appellant/accused was also committing ‘Marpeet with his wife deceased-Haru Devi and once she was deprived of meals for three days. Kishan Ram has also caused injury on her head with the Bariath (a weapon like sickle) and whenever Haru Devi has come to her parental house, she used to complain to her parents about the harassment and injuries caused by Kishan Ram. She also deposed that appellant/accused Kishan Ram also caused injuries in the eyes of Haru Devi (deceased) due to which blood also oozed out from her eyes. Kishan Ram used to commit Marpeet after taking liquor and whenever deceased Haru Devi was complaining about the Marpeet to Mani Ram and Kunwar Ram, they told her to go back to the Kishan Ram the appellant/accused. She has further stated that the appellant/accused was also demanding dowry and harassing Haru Devi and due to this torture, Haru Devi committed suicide. The statement of this witness P.W.3 Smt. Indra 13 Devi also gets corroboration from the evidence of P.W.-4 Smt. Sita Devi (sister of the deceased Haru Devi) and P.W.-5 Mohan Ram (brother of the deceased Haru Devi. Thus, from the evidence of P.W.3 Indra Devi, P.W.-4 Sita Devi and P.W.-5 Mohan Ram, it is proved that the appellant/accused was committing ‘MARPEET’ with the deceased Haru Devi and he was also harassing and torturing her due to the demand of dowry before her death and after her marriage. 19. Apart from above, it is also pertinent to mention Section 306/498-A of I.P.C. and 113-A of Indian Evidence Act, 1872 which are reproduced as under:- “306 I.P.C.- Abetment of suicide – If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.” “498-A I.P.C. – 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 be liable to fine.” Explanation- For the purpose of this section, “cruelty” means- (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause gave injury or danger to life, limb or health (whether mental or physical) of the woman; or 14 (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 secuirty or is on account of failure by her or any person related to her to meet such demand. “113-A of Indian Evidence Act– Presumption as to abetment of suicide by a married woman – When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband subjected her to cruetlty, the Court may presume,