RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No.155 of 2008 Shyam Haldhar & another … Appellants Versus State of Uttarakhand … Opposite Party Mr. D.C. Joshi, Advocate for the appellant Mr. H.O. Bhakuni, Brief Holder for the State Dated: September 2, 2011 Hon’ble Servesh Kumar Gupta, J. The challenge in this appeal is to the judgment and order dated 30.4.2008 rendered by Additional Sessions Judge, Kashipur, District Udham Singh Nagar in S.T. No.232 of 2006, State Vs. Shyam Haldhar & another, whereby the appellants have been convicted and sentenced to undergo eight years’ R.I. for the offence of Section 304-B IPC. It is pertinent to mention here that during the pendency of the appeal, the second appellant/accused Duryodhan died, so the appeal stood abated against him. Learned counsel of the appellant Suresh Haldhar and learned Brief Holder have been given hearing by this Court. The facts of the case are that one Sri Deepak Kumar Ghosh, father of Smt. Seema lodged an FIR on dated 30.5.2006 to the Police Station, Rudrapur stating therein that his daughter Smt. Seema was wedded on 17.11.2005 with Shri Shyam Haldhar S/o Sri Duryodhan. In wedding, he offered the dowry as per his status but the accused persons were not satisfied with the offerings made by Sri Deepak Kumar Ghosh. The result was that they started to tease, torture and taunt Smt. Seema on the question of bringing lesser dowry. Before two months of death, in the intervening night of 29/30.5.2006, both the accused persons sent Smt. 2 Seema to her father’s house for fetching Rs.20,000/- in the dowry but the same could not be managed by poor father. Rather, Sri Deepak Kumar Ghosh tried to persuade both the accused by reaching their house but in vain. In the morning of 30.5.2006, some unknown person informed him that his daughter Smt. Seema was no more. He rushed to his daughter’s in-laws house and found his daughter dead. So the FIR was lodged on 30.5.2006 at 8:30 AM, which is Ex.Ka.1. Inquest report Ex.Ka-3 was prepared at 1 PM on the same day. The gathering of the people (Panchas) opined the cause of death being the unseen injuries, while the Magistrate could not express any opinion on having an apparent look upon the dead body. The autopsy Ex.Ka-2 was conducted and the doctors, who conducted the post-mortem, could not ascertain the cause of death, so the Viscera was preserved and sent for the chemical analysis in the laboratory. After the investigation and recording of the evidence of the witnesses, the chargesheet was submitted against both the accused persons for the offence of Section 3/4 of Dowry Prohibition Act and 304-B of the IPC. The charge was levelled against both the accused persons by the Sessions Judge, Udham Singh Nagar and after recording the evidence of the witnesses and that of the accused u/s 313 Cr.P.C., nay extending the opportunity of producing the defence, the learned Additional Sessions Judge passed the order of conviction, as above. Learned counsel of the defence first and foremost invited the attention of this Court towards the variations vis-à-vis the report of the forensic science laboratory. The date 16.5.2006 was mentioned on this report as the one when the viscera was sent for chemical examination to the laboratory based at Lucknow, because the letter disclosing the report of viscera finds the mention of date 16.5.2006 and the said letter was addressed to C.J.M. U.S. Nagar, wherein it has been stated 3 that your letter dated 16.5.2006 along with the viscera sent through Agra Laboratory was received with the annexed letter dated 30.5.2007. It infers that the office of CJM mentioned the date 16.5.2006 on a letter which was addressed to the laboratory at Agra, which in turn, wrote a letter dated 30.5.2007 to the Joint Director, Forensic Laboratory based at Lucknow. After receiving these letters along with the viscera, the report dated 1.8.2007, forwarded on 3.8.2007, was sent to the police concerned and the same was submitted to the court by the I.O. on 25.10.2007. Learned counsel of the appellant has argued that the mention of date ‘16.5.2006’ shows that the viscera was not of the deceased Smt. Seema but was of some other dead body. This argument is not tenable because all the letters, either sent by the police or Magistrate or in turn by Agra Laboratory, finds the correct mention of the crime number, police station as well as the penal sections of the IPC, nay the name of accused and deceased. Simply mentioning the wrong date by one person does not enough to derive the impression that the viscera was of some other dead body. It was just a mistake on the part of incompetent government officials which can often be noticed. So, the appellant is not entitled to get any advantage of the wrong mentioning of the date only at one place. Before adjudicating such matters, it is relevant to read the presumption u/s 113-B of Indian Evidence Act, 1872, which reads as under: - “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.” Notwithstanding, the accused persons were acquitted for the offence of Section 3/4 of Dowry Prohibition Act, they 4 cannot be absolved for the offence of Section 304-B IPC for the mere reason that no offence of Section 3/4 of Dowry Prohibition Act was found to have been proved unequivocally. This death of Smt. Seema had occurred within seven months of her marriage and in her in-laws house, when she was in the custody of the accused persons. Her dead body was found lying in the bedroom in the morning of 30.5.2006. It is enough to infer that she died in the intervening night of 29/30.5.2006. In the oral testimony produced by her father and brother, it has been clearly deposed that within seven months of marriage, Seema came to her parents’ house and asked Rs.20,000/- at the instance of the accused persons. When her father Deepak Kumar Ghosh was helpless to give this much of money, then her sister in law (brother’s wife) was ready to offer her jewellery so that to fetch Rs.20,000/- as sale proceeds and to give them to victim to make her life peaceful but Smt. Seema did not accept this offer. She was persuaded to go back with empty hands and Deepak Kumar Ghosh along with some social persons tried to persuade the accused persons in order to settle Smt. Seema amicably and not to taunt and torture her any more, but in vain. So far as the notion ‘soon before death’ is concerned, the Hon’ble Apex Court has made it clear many a times in a number of precedents which are quoted below: - “State of Andhra Pradesh Vs. Raj Gopal Asawa, 2004 AIR SC 1933; 2004 Cr. L.J. 1791”- ‘Soon before’ is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period. No definite period has been indicated and the expression ‘soon before’ is not defined. The above view again reiterated in “Yashoda Vs. State of M.P. reported in 2004 (1) UP Cr.R. 406; (2004) 3 SCC 98”, 5 wherein it was held that ‘soon before’ is pregnant with the idea of proximity test. It is not synonymous with the turn immediately before. Similarly, in the case of “Pradeep Singh Vs. State of Jharkhand reported in 2007 AIR 2154 S.C.”, it was held that ‘soon before death’ – is an elastic term- what is relevant is there should be a perceptible nexus between death of deceased and dowry related harassment or cruelty inflicted on her. In Raj Gopal Aswa (Supra), it was also laid down by the Apex Court that in cases of dowry deaths and suicides, circumstantial evidence plays an important role and inferences can be drawn on the basis of such evidence. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the ‘death occurring otherwise than in normal circumstances’. It is very much clear that the death of Smt. Seema was neither natural nor accidental. It was within the bedroom of the accused Shyam Haldhar, wherefore he could not offer any explanation. The Forensic Science Laboratory has found the poison in the viscera of the deceased. It has also come in the evidence that the accused did not inform the parents or the brother of deceased while both the families resided in the same city. Had he been innocent in the incident, then it was the first and foremost duty of the husband Shyam Haldhar (appellant) to go to his father in law or brother in law to inform the death of his wife. Rather, he took to his heels when the police arrived at the spot and made the inquest report. The members of the inquest report expressed their views that Smt. Seema has died due to the silent and secret injuries on her body. The oral testimony has been adduced in the court by the father and brother of deceased regarding the demand of Rs.20,000/- several times by the accused from the deceased Smt. Seema and there is enough evidence to infer that she was subjected to cruelty on the question of dowry by demanding 6 Rs.20,000/- soon after the marriage and this demand persisted till death of Smt. Seema. In defence, the accused has examined Kamresh Haldhar, who is his real brother. This witness has deposed that no sooner did they notice Smt. Seema lying unconscious on the bed, he immediately called Dr. Tapan, who certified the death of Smt. Seema. It appears that this statement of Karmesh Haldhar has been given in the court just to create a false and baseless defence. They have not examined any doctor, named Sri Tapan, to corroborate their version. His version in the court that he himself went to Adarsh Indira Colony by cycle to inform the father of Smt. Seema, is also not true, inasmuch as, PW1 Deepak Kumar Ghosh has categorically denied the information received from any member of the family of her daughter’s in-laws house. This behaviour, on the part of the accused or his brother, also reflects their guilt in the crime and at any rate, the accused is not exonerable from the charge and the presumption goes against the accused Shyam Haldhar that deceased Smt. Seema was administered poison by the appellant/accused. In view of what has been stated above, the appeal is bereft of merit is liable to be dismissed. It is, accordingly, dismissed. Judgment and order passed by the trial court is sustained. Let the lower court record be sent back. (Servesh Kumar Gupta, J.) September 2, 2011 Rajeev Dang