Judgment reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1657 of 2001 Old Number Criminal Appeal No. 2213 of 1996 Pawan Kumar and others. ……..…Appellants. Versus State of Uttar Pradesh. …….….Respondent. Present: Mr. Lokendra Dobhal, learned counsel for appellants no. 1 and 2 Mr. L.K. Tiwari, learned counsel for appellant no. 3. Mr. Nandan Arya, learned AGA for the State of Uttarakhand/ respondent. Hon’ble Nirmal Yadav, J. Accused / appellants Pawan Kumar, husband of Arjun Kaur (deceased), Soni and Pinky, mother and sister of Pawan Kumar respectively stood trial for the offence punishable under section 304-B of the Indian Penal Code (for short IPC) and section 4 of the Dowry Prohibition Act in sessions trial no. 152 of 1995. Learned trial court after taking into consideration entire evidence on record convicted the accused appellants for the above sections and sentenced them to rigorous imprisonment for 10 years under section 304-B IPC and one year rigorous imprisonment under section 4 of Dowry Prohibition Act and a fine of Rs. 5000/- each. In default of payment of fine, they have been further ordered to undergo one year rigorous imprisonment. 2 Facts, in brief, are that Arjun Kaur was married to Pawan Kumar in the year 1993. She died having suffered burn injuries on 19.06.1994 i.e. after about one year of her marriage. The criminal law was set in motion on the complaint made by PW4 Chhinder Singh, brother of Arjun Kaur, on 20.06.1994 at about 2.00 p.m. vide written complaint exhibit Ka 1. According to the complainant, Arjun Kaur was being harassed by her husband Pawan Kumar and other family members since the time of her marriage. On 17.06.1994, Arjun Kaur along with her husband Pawan Kumar had visited the house of her parents. She had informed her parents that Pawan Kumar was demanding money for purchasing some articles for his shop but her parents expressed their inability to fulfil the demand at that time, however, promised to give money within 3-4 days. Accordingly, Arjun Kaur and Pawan Kumar went back to the house of Pawan Kumar, at village Suddowala on 18.06.1994. However, on 19.06.1994 at about 3.00 p.m. brother-in-law of Pawan Kumar along with another person came to the parental house of Arjun Kaur and informed that she had expired on account of burn injuries. Complainant and other family members went to Dehradun and found Arjun Kaur lying dead. He further stated that in-laws of Arjun Kaur had been making demand for money since the time of her marriage and were harassing her but they did not report the matter thinking that matter would be sorted out, but the accused have committed the murder of Arjun Kaur by 3 causing burn injuries. On the basis of complaint, chick FIR was recorded on 20.06.1994 at 2.00 p.m. (exhibit Ka 5). Arjun Kaur was admitted in Doon Hospital, Dehradun on 19.06.1994 at 08.20 a.m. PW 5 Dr. D. M. Kala found superficial to deep burns on the whole body. The skin was peeling of at several places. Singeing was present on the hair and blisters were found on several parts of the body. Injuries were kept under observation. On account of burn injuries Arjun Kaur died on 19.06.1994 at 10.55 a.m. in the hospital itself. Information in this respect was sent to SO, Kotwali vide exhibit Ka 3. According to Dr. D. M. Kala, burn injuries on the person of Arjun Kaur could be caused at 7.30 a.m. on 19.06.1994 by pouring kerosene oil and setting her on fire. PW9 SI Sartu Lal received GD no. 22 dated 19.06.1994 in Hospital and was directed by SHO, Kotwali to prepare inquest report in this case. He, therefore, prepared the inquest report of the dead body of Arjun Kaur in the mortuary of Hospital. The inquest report is exhibit Ka 11. The investigation was handed over to PW8 SSI Dalbeer Singh on 20.06.1994. He recorded the statement of PW4 Chhinder Singh and PW3 Balwant Singh and made inquiries from other witnesses. On inspection of scene of crime, he lifted empty bottle of kerosene and half burn clothes of deceased vide memo exhibit Ka-6 and exhibit Ka-7 respectively. He also prepared exhibit Ka-8, the scaled site plan of place of occurrence. He arrested accused Pawan Kumar and his mother Soni on 21.06.1994. Further investigation 4 was conducted by PW10 Ajay Rautela, as investigation was handed over to him on 27.06.1994. He recorded the statement of earlier Investigating Officer and Head Moharir Suresh Chand and thereafter, went to the place of occurrence. He also recorded the statement of Balram, father of accused Pawan Kumar and PW7 Basanti, thereafter, he recorded the statement of other witnesses on 03.07.1994. Autopsy on the dead body of Arjun Kaur was conducted by PW6 Dr. Radhey Shyam Gupta along with Dr. Jaideep Dutta on 20.06.1994 at 12.30 p.m. He found that rigor mortis had passed over through the eyelids & neck and was present in all the four limbs. He found smell of kerosene oil on the person of Arjun Kaur and superficial to deep burn injuries on the whole of body. Skin was peeled off at several places, blackening of skin and blisters were found on the body. On internal examination, respiratory system and lungs were found to be congested. As per opinion of the doctor, cause of death was shock due to external ante mortem injuries. Burns were identified as having caused due to dry heat. According to him, body of deceased was having hundred percent burns. On completion of investigation, accused were charge-sheeted as referred to in first para of the judgment, to which they pleaded not guilty and claimed trial. The prosecution, in order to prove its case, examined as many as ten witnesses. PW1 Mahinder 5 Kaur, wife of Chhinder Singh (complainant), categorically stated that deceased was being harassed and ill treated by accused Pawan Kumar and his family members. They had been making demand of money from the time of marriage. She further stated that on 17.06.1994 Arjun Kaur along with her husband had come to her parents house and disclosed about the demand of Rs. 5000/- made by Pawan Kumar. Her parents expressed their inability to fulfil the demand of Rs. 5000/-, however, promised to fulfil the same within few days. Arjun Kaur wanted to stay with her parents for some time but accused Pawan Kumar did not allow her to stay with them. PW2 Hakoo Ram, whose fields are situated near the passage from Doiwala to Shergarh had heard the noise of Pawan Kumar quarrelling with deceased. Pawan Kumar was threatening her to teach a lesson after reaching home. PW3 Balwant Singh states about the demand of dowry and the harassment meted to the deceased by the accused. He has further stated that on 19.6.1994 he had gone to village Suddowala after arranging a sum of Rs. 4,000/- for paying the same to Pawan Kumar, as demanded by him. He also says that he had reached the house of the accused and had seen Arjun Kaur engulfed in flames in the presence of the accused, who did not make any effort to save her. He, however, says that on seeing this, he became unconscious and later on regaining consciousness went to the hospital. However, this part of his statement appears to be exaggerated and implausible. In case, he was present 6 at the place of occurrence, he would have certainly made efforts to save his sister and would have informed the police as well as his family members immediately. However, statement of PW 4 Chhinder Singh and his wife PW1 Mahinder Kaur fully supports the prosecution case. Both of them have categorically stated that Arjun Kaur was being harassed and demand of Rs. 5000/- was made by Pawan Kumar on 17.06.1994, when both of them had visited the house of her parents. All the accused when examined under section 313 Cr.P.C. denied the incriminating evidence put to them by the prosecution and pleaded false implication. According to accused Pawan Kumar, deceased received burn injuries while she was lighting the fire in the chulha. According to accused Pinky, she had been living separately and there was no interference by her in the affairs of the deceased and accused Pawan Kumar. According to her Arjun Kaur had come towards her house in a burning state and she (Pinki) had tried to extinguish her fire. On her asking Arjun Kaur had disclosed that she received burn injuries while she was preparing food. In defence, accused produced DW1 Shyam Prasad Daundiyal and DW2 Rajpal, who stated that Arjun Kaur had come out of her kitchen in burning condition and fire was extinguished by Pawan Kumar 7 and Pinky. Rajpal stated that he along with Pawan Kumar had run towards the kitchen on hearing the noise of Arjun Kaur. He further stated that fire was extinguished by Pinky and Shyam Prasad. I have heard learned counsel for the parties and scrutinized the evidence on record. Learned AGA submitted that deceased Arjun Kaur died an unnatural death within four walls of her matrimonial home and that too just after one year of her marriage. He further stated that as per medical evidence Arjun Kaur died on receiving superficial to deep burn injuries on her whole body. Dr. Radhey Shyam Gupta found smell of kerosene oil on her body. According to him, deceased had received 100% burns on her body. It is argued that since the smell of kerosene oil was coming from the body, therefore, there was no possibility that victim received burn injuries while she was lighting fire in the chulha, thus, it could not be an accidental catching of fire. He pointed out that if there is smell of kerosene oil then the possibility of homicidal death cannot be ruled out and there is the remotest possibility that deceased received accidental burn injuries. With regard to the demand made by the accused, PW1 Mahinder Kaur, PW3 Balwant Singh and PW4 Chhinder Singh are consistent in their statement that two or three months after the marriage, deceased Arjun Kaur had been complaining that her husband and her in-laws were harassing her on account of 8 demand of money. On her complaint PW3 Balwant Singh had paid rupees one or two thousand to Arjun Kaur three or four months after the marriage. They have categorically stated that on 17.06.1994 Arjun Kaur along with Pawan Kumar had come to her parental house and had disclosed to her parents that Pawan Kumar is making a demand of Rs. 5000/-. However, she was told that money would be arranged in few days. Arjun Kaur wanted to stay at her parental house but Pawan Kumar insisted that she should accompany him back to the matrimonial home. From the above statement, it is, thus, apparent that the harassment and demand of money was continuing and Arjun Kaur had been conveying the same to her brothers and parents. PW2 Hakoo Ram had seen Arjun Kaur while she was passing near his field along with her husband. At that time, she was crying while her husband was threatening her to teach her a lesson when they reached home. On the next day, he came to know that Arjun Kaur had died on account of receiving burn injuries. Learned counsel for the appellants referred to few contradictions and discrepancies in the statement of the witnesses. He pointed out that it is not clear as to whom Arjun Kaur disclosed about the demand of Rs. 5000/- made by Pawan Kumar and to whose house she had visited at Shergarh whether it was her father’s or her brother’s house. 9 A perusal of the testimony of the witnesses would show that PW4 Chhinder Singh stated that Arjun Kaur and Pawan Kumar came to his house and Arjun Kaur demanded money from him as well as from her parents. As per the statement of PW2 Hakoo Ram, Chhinder Singh was living separately from his father Jai Singh and Chhinder Singh’s house is about half a mile away from Jai Singh and in between their houses there are three or more houses while PW3 Balwant Singh was living with his father Jai Singh, however, there appears to be no contradiction with regard to demand of dowry. A perusal of statement of PW1 Mahinder Kaur shows that Arjun Kaur came and stayed at the house of her father Jai Singh on 17.06.1994 and on 18.06.1994 she visited the house of her brother Chhinder Singh, who was present in the house and informed him about the demand of dowry made by Pawan Kumar. Even PW4 Chhinder Singh states that Arjun Kaur had first gone to the house of Balwant Singh, who was living with his father Jai Singh. In such circumstances, there appears to be no contradictions and discrepancies with regard to demand of dowry conveyed to her family members by Arjun Kaur. Learned counsel for the appellants, however, argued that as per FIR, Arjun Kaur told her parents that Pawan Kumar was demanding money for buying some articles for his shop. There is no evidence that demand was for or in connection with dowry, thus, demand of money does not fall within the definition of 10 dowry. However, this fact has been clarified by PW4 Chhinder Singh who while appearing before the court stated that when he lodged the report he did not have complete information about the facts as he had not discussed the matter with his family members. PW1 Mahinder Kaur and PW4 Chhinder Singh have categorically deposed before the court that Arjun Kaur was being harassed for bringing insufficient dowry and in lieu thereof accused was asking to bring money from her parents. PW4 Chhinder Singh had further stated that Arjun Kaur had visited her parental house six or seven times after the marriage. At least on two occasions she categorically told him that she was being harassed for bringing insufficient dowry and was asked to bring money from her parents. However, from evidence on record it is clear that it was Pawan Kumar, who had made demand of money and asked Arjun Kaur to convey the same to her parents. There is no evidence that Pinky, the married sister of accused Pawan, had made any such demand. There is also no evidence that accused Soni, mother of Pawan Kumar, was in any way to be benefited from the demand made by Pawan Kumar. It has come in the evidence that accused Pinky had been living separately and did not have any interference in the affairs of Pawan Kumar’s family. Statements of PW1 Mahinder Kaur, PW4 Chhinder Singh and PW3 Balwant Singh shows that it was Pawan Kumar, who made a demand of Rs. 5,000/- when he along with Arjun Kaur visited the house of complainant. In the FIR and in the examination-in- 11 chief it has been stated by PW4 Chhinder Singh that in-laws of Arjun Kaur were harassing Arjun Kaur with regard to demand of dowry, however, Balwant Singh has categorically stated that Arjun Kaur met him on 18.06.1994 while he was in her parental house. She had stated while crying that Pawan Kumar was making a demand of Rs. 5000/-. He also stated that whenever she visited her parental house she complained that Pawan Kumar was making demand for money. From the evidence on record, this court is of the view that there appears to be no specific allegations against the appellants Soni and Pinky with regard to harassment meted out to the deceased on account of demand of dowry. Thus, the findings of trial court with regard to the involvement of accused Pinky and Soni for causing dowry death of Arjun Kaur is not at all substantiated. However, the prosecution has been able to establish beyond doubt that Arjun Kaur, while living in her matrimonial home, was being harassed by Pawan Kumar and ultimately she died an unnatural death in her matrimonial home. Section 304-B of Indian Penal Code provides that where the death of a woman is caused by burns or fatal injury or otherwise than under normal circumstances, within seven years of her marriage and it is shown that soon before her death she must have been subjected to cruelty or harassment by her husband or any relative of her husband, for or in connection with demand of dowry, such death shall be 12 called as ‘dowry death’ and such husband or relative shall be deemed to have caused her death. Section 113-B of the Evidence Act provides a presumption with regard to dowry death. It specifies that when question as to whether a person committed “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 of dowry, the court shall presume that such person had caused the “dowry death.” In the present case, admittedly, Arjun Kaur died just one year after her marriage in the matrimonial home and demand of money was made soon before her death. It is well proved that from the statement of Mahinder Kaur, Chhinder Singh and Balwant Singh that Pawan Kumar had conveyed his demand of Rs. 5000/- when he along with Arjun Kaur visited parental house of Arjun Kaur on 17.06.1994. As per statement of PW2 Hakoo Ram accused Pawan Kumar was threatening Arjun Kaur to teach her lesson after reaching home while they were passing near his field, thus, it is well proved that soon before the occurrence Arjun Kaur was subjected to cruelty / harassment and thus, presumption under section 113-B of Evidence Act comes into operation. As discussed above, the death of Arjun Kaur was caused as she suffered almost hundred percent burn injuries. Her body was smelling of kerosene oil as 13 stated by PW6 Dr. Radhey Shyam Gupta. Statement of PW7 Basanti Devi does not appear to be reliable. Admittedly, she is the neighbour of accused Pawan Kumar. She was confronted with her statement made under section 161 Cr.P.C. before police where she stated that “family members of Balram, father of Pawan Kumar had been rebuking their daughter-in- law (Arjun Kaur) and there used to be quarrel in the house. Shrieks of Arjun Kaur could be heard from the house. Normally, Arjun Kaur was found crying.” But while appearing before the court, she denied having made such statement. It appears that she being the neighbour of accused has tried to support the accused, however, she was declared to be hostile by prosecution. The statement of witness produced by the defence does not support the accused in any manner. As per statement of DW1 Shyam Prasad, he saw Arjun Kaur running out of her kitchen and came towards his house and he extinguished the fire. Meanwhile, accused Pinky also brought one quilt and tried to extinguish the fire. A suggestion was given to this witness that whether all the three accused persons were present in the kitchen. In reply to the suggestion, this witness stated that he did know anything about this. He had only seen Pinky and Soni reaching the place of occurrence later on. This reply clearly does not absolve accused Pawan Kumar from his involvement. On the other hand, DW2 Rajpal says that on hearing the noise he along with Pawan Kumar came running towards the place where Arjun Kaur 14 was lying and fire was extinguished by them. In cross examination DW2 Rajpal stated that his house is at a distance of half a kilometer from the house of accused Pawan Kumar and he did not inform about the incident to the police. Learned counsel for the appellants further argued that there is an inordinate delay in lodging the First Information Report. It is argued that family members of the deceased were informed by brother-in- law of Pawan Kumar about the incident in the evening of 19.06.1994 whereas First Information Report has been lodged on the next day at about 2.00 p.m. It is argued that as per statement of PW3 Balwant Singh, he was present at the time of occurrence, as he had gone to the house of Pawan Kumar to give Rs. 4000/- to Pawan Kumar after arranging the same, to satisfy his demand. But he did not report the matter immediately to the police, rather he went to Ponta Sahib (Himachal Pradesh) to call his brother PW4 Chhinder Singh and on the next day when PW4 Chhinder Singh came back from Ponta Sahib, the matter was reported. From the above facts, it appears that First Information Report was lodged after due consultation in order to cook up a false story. This argument of the learned counsel for the appellants does not appear to be plausible. In such matters, it is always normal that family members of the deceased would have discussion before lodging the First Information Report as they would try to find out the true facts and then only the matter would be reported. 15 From the evidence available on the record, it is well proved that the day before the occurrence, deceased had visited her parental house and a demand of Rs. 5000/- was made by Pawan Kumar. Admittedly, in the present case complainant has neither leveled any allegation against Balram, father of Pawan Kumar nor any allegation has been made against husband of Pinky, brother-in-law of Pawan Kumar. These facts suggest that First Information Report was lodged as per the facts known to the complainant PW4 Chhinder Singh, as there is nothing to suggest that First Information Report was got drafted after due consultations in order to falsely implicate the other members of accused family. The complainant has leveled general allegations against mother-in-law and sister-in-law while specific allegations are there against accused Pawan Kumar. Moreover, the complainant would not have mentioned that they were informed by brother-in-law of Pawan Kumar about the incident in the evening of 19.06.1994. They could have easily avoided about the information having been given to them about the death of Arjun Kaur on 19.06.1994 so that delay, if any, could be covered. Even if there is any delay, it does not in any way adversely affect the prosecution case. Learned counsel for the appellants pointed out that statement of PW3 Balwant Singh is full of exaggeration. According to him, he had seen Arjun Kaur engulfed in flame and she was running out from the house of the accused but he has not made any 16 effort to save the life of his sister. It is also argued that his story of arranging Rs. 4000/- and going to pay the same to Pawan Kumar is also not proved. Even for sake of argument, if statement of PW3 Balwant Singh with regard to arranging of money and having seen the occurrence is not considered, the prosecution case, is not in any way demolished, in view of consistent and cogent statements of PW1 Mahinder Kaur and PW4 Chhinder Singh. Moreover, there is no dispute that Arjun Kaur died unnatural death in the matrimonial home. It is for the accused to explain the cause of her death. The story put forward by the defence that Arjun Kaur died while lighting the fire in the chulha is totally belied from the statement of Dr. Radhey Shyam Gupta. He has categorically stated that dead body of Arjun Kaur was smelling of kerosene oil, thus, it is well proved that death of Arjun Kaur was not accidental but it was homicidal. From the above discussion, I am of the affirm view that prosecution has successfully been able to prove its case beyond doubt under section 304-B IPC and section 4 of Dowry Prohibition Act against accused Pawan Kumar. Accordingly, appeal qua Pawan Kumar is dismissed, however, appeal qua appellants Soni and Pinky is allowed. Judgment and order passed by the trial court is set aside qua Soni and Pinky, however, judgment and order passed by trial court qua