Judgment reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 1599 of 2001 Old Number Government Appeal No. 2903 of 2000 State. ……Appellant. Versus Magan and others. ...............Respondents. Present: Mr. Nandan Arya, learned AGA for the State/ appellant. Mr. Rajesh Sharma, Advocate holding brief of Mr. Rakesh Thapliya, Advocate for the respondents. Hon’ble Nirmal Yadav, J. This appeal has been filed by the State challenging the judgment dated 16.06.2000 passed by Additional Sessions Judge, Dehradun vide which above named accused / respondents have been acquitted for the offence punishable under sections 498A, 304B IPC and section 4 of Dowry Prohibition Act. The criminal law was set in motion on the application moved by accused Maniram to SO, Police Station - Sahaspur, Dehradun on 13th October, 1993 at 8.55 a.m. As per said report, Magan (son of Maniram) along with his wife Kamla and child were sleeping in their room. At about 2.00 a.m. Magan woke up on hearing cries of his child and found that Kamla had committed suicide by hanging herself with her chunni. When he raised alarm, other family members reached the spot and opened the knot around Kamla’s neck. Doctor was summoned through PW4 Kabool Chand but Kamla was found to be 2 dead by that time. Accused informed the parents of Kamla about the said occurrence. On receiving the information, SI Harendra Singh reached the spot, prepared panchayatnama and sent dead body for postmortem. At that time parents of Kamla including his brother Dharampal were also present. Many other persons from the neighbourhood also collected at the spot. Brother of deceased Dharampal submitted written application (exhibit Ka 1) on 14.10.1993, on the basis of which First Information Report (exhibit Ka 3) was lodged on 14.10.1993 at 1.50 p.m. in police station – Sahaspur, Dehradun. Thereafter, another application (exhibit Ka 2) was moved by Dharampal on 21.10.1993 wherein he alleged that marriage of his sister was performed with accused Magan about 3 years prior to the occurrence. After the marriage, her husband Magan, father-in-law and mother-in-law were harassing and giving beatings to his sister Kamla on account of bringing inadequate dowry. His sister used to disclose this fact whenever she visited her parent’s house. However, they would always pacify her and send her back to matrimonial home. It was also submitted that his sister has been killed by the three accused by strangulation on 12.10.1993 after giving her beatings on account of bringing inadequate dowry. He further stated in the application that he could not mention about the harassment metted out to sister on account of demand of dowry in his application dated 12.10.1993, as he was disturbed after the death of his sister. He, therefore, pleaded that adequate action be taken against the culprits. 3 Investigation in this case was conducted by PW 7 SI Harendra Singh. He prepared scaled site plan of place of occurrence and took into possession the chunni of the deceased vide memo exhibit Ka 10. He recorded the statement of the witnesses. On completion of the investigation, challan was presented in the court. Learned trial court after taking into consideration the facts and evidence on record charged all the three accused under section 498A, 304B IPC and section 4 of Dowry Prohibition Act to which accused respondents pleaded not guilty and claimed trial. The prosecution, in order to prove its case, produced as many as eight witnesses. PW1 Dharampal and PW2 Nepal Singh, both are brother of deceased while PW8 Kanta is the mother of deceased. PW 3 SI Suresh Chand had received the written report given by Dharampal on 14.10.1993 on the basis of which First Information Report was recorded. He also proved the application submitted by Maniram, which was recorded in GD No. 10 (exhibit Ka 7) with regard to the information of the occurrence. PW4 Kabool Chand belongs to the village of accused persons. According to him, he was present when the police came at the spot and prepared panchayatnama. He was also signatory to the panchayatnama. He had summoned Dr. Suresh on the asking of Maniram during the night of 12.10.1993. After examination doctor found Kamla to be dead. He also went to inform parents of the deceased along with Alim to village Thakrani. PW5 Sunder Lal belongs to village of the complainant. He was present when the Investigating Officer had taken into 4 possession the chunni near the dead body. PW6 Constable Jitendra Kumar had accompanied Investigating Officer on the receipt of the information given by Maniram with regard to the death of Kamla. This witness along with constable Rishipal had removed the dead body to the mortuary for postmortem. PW7 SI Harendra Singh is the Investigating Officer. Accused when examined under section 313 Cr.P.C. denied the incriminating evidence put to them. According to them, they never made any demand of dowry and they have been falsely implicated. The trial court after taking into consideration the facts and evidence available on record arrived at the conclusion that prosecution had failed to establish that any demand of dowry was made by the accused persons soon before her death or that she was subjected to cruelty or harassment by her husband or relatives of her husband in connection with demand of dowry. It was further highlighted that not even a single word with regard to demand of dowry has been mentioned in the application dated 14.10.1993 submitted by brother of the deceased. It was only on 21.10.1993 an application (exhibit Ka 2) was submitted by Dharampal stating that his sister was being treated with cruelty for bringing inadequate dowry and that she had been killed for not bringing the dowry. The trial court has highlighted certain circumstance while acquitting the accused and holding that they did not have guilty mind. It is pointed out that PW4 Kabool Chand along with Alim was sent by the accused early in 5 the morning to inform the parents of the deceased with regard to her death, which has been admitted by PW1 Dharampal also. It has also been pointed out that even PW7 SI Harendra Singh, the Investigating Officer stated that there was no mention with regard to the demand of dowry upto 21.10.1993. In his cross examination he has admitted that when he reached the house of accused, complainant Dharampal and many other persons were present there and at that time no one stated that deceased had been killed by accused persons on account of demand of dowry. Even on the next date when Dharampal lodged the report, he did not mention even a word about the demand of dowry. Moreover, in the statement recorded under section 161 Cr.P.C., Dharampal has not alleged that his sister had been harassed by accused on account of demand of dowry. Harendra Singh further stated that many persons from the neighbourhood of accused were present at the spot, he made inquiries from them but none of them revealed that they heard any noise from the house of Maniram during the fateful night. They only informed that Maniram had disclosed to them at about 2.40 a.m. in the intervening night of 12th and 13th October 1993, his daughter-in-law had died. It has been observed by the learned Trial Court that in case, there was any harassment or cruelty was committed by accused or beatings were given to Kamla, the complainant would have certainly mentioned so in his application dated 14.10.1993. The prosecution has failed to give any explanation as to why another application dated 21.10.1993 was submitted. It is also pointed out that prosecution tried to conceal the report submitted by 6 accused Maniram on 13.10.1993 at about 8.55 a.m.. The police had reached the spot on the basis of the said report only. Dharampal PW 1 also admitted that when he reached the house of the accused police was already present there. The prosecution has also made material improvements in its case. In the application submitted on 21.10.1993 no specific demand has been mentioned whereas Dharamapal while deposing in the court stated that the accused were making demand of colour TV or Rs. 10,000/- in cash. PW2 Nepal Singh and PW8 Smt. Kanta also made similar improvement in their statements. However, all the three witnesses admitted in the cross examination that they did not make any complaint with regard to harassment or demand of dowry to any authority. They did not convene any panchayat in this regard. PW5 Sunder Lal admitted in cross examination that Kamla was his cousin. He had reached the house of the accused at 8.00 a.m. or 8.30 a.m. on 13.10.1993 and found that police as well as several other persons were present there. He denied any knowledge if accused Kamla had been harassed by accused on account of demand of dowry. He also denied any knowledge if Kamla was ever given beatings by the accused persons. In case, there was any harassment or cruelty was metted out by accused persons, family members of Kamla would have certainly disclosed this fact to Sunder Lal also. 7 The conduct of the accused persons also shows that they did not have guilty mind. They immediately summoned the doctor through Kabool Chand when they found that Kamla had hanged herself. Doctor had examined Kamla, however, she was found to be dead. Accused immediately informed the parents of Kamla about her death. Mother as well as other family members of Kamla reached the house of the accused but they did not make any complaint with regard to the harassment to the police or any other authority till 21.10.1993. Even the neighbours of the accused did not notice any untoward incident during the night when occurrence took place. In case, there was any fault on the part of the accused they would not have summoned the doctor nor they would have informed the family members of Kamla deceased. The Investigating Officer also stated that at the house of the accused persons family members of Kamla and many other persons from neighbourhood were present but none of them uttered even a word about harassment or any beatings having been given to Kamla by the accused persons. Even the medical report supports the version given by the defence. In the opinion of doctor, cause of death was due to asphyxia on account of hanging. There is no evidence on record that any of the accused was involved or the death of Kamla was homicidal. From the entire evidence and circumstance, it appears that Kamla was disturbed on account of death of her daughter, as per the suggestions give by defence to the witnesses. PW 8 Smt. Kanta also stated that Kamla was disturbed after death of her daughter. 8 In order to convict an accused for offence under section 304B IPC the following essentials must be satisfied: i. The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances; ii. Such death must have occurred within 7 years of her marriage; iii. Soon before her death, the woman must have been subject to cruelty or harassment by her husband or by relatives of her husband; iv. Such cruelty or harassment must be for or in connection with demand of dowry. It is only when the aforesaid ingredients are established by cogent and consistent evidence, the death shall be called “dowry death” and the husband or his relative shall be deemed to have caused such death. In the present case, death of Kamla of course was caused by otherwise than under normal circumstances and it occurred within seven years, however, remaining two ingredients have to be satisfied on the basis of evidence available on record. As discussed above, the prosecution has miserably failed to prove that soon before her death Kamla had been subjected cruelty or harassment by her husband or other relatives of her husband or if harassment was for or in connection with demand of dowry. There is no cogent evidence with regard to demand of dowry or subjecting Kamla to cruelty for or in 9 connection with the dowry except general, vague inconsistent statements of interested witness i.e. PW 1 Dharampal, PW2 Nepal Singh, brothers of deceased and PW 8 Smt. Kanta, mother of deceased. Their statements have been made not immediately after death but appears to have been made after due deliberations. Not a single neighbour or relative of the accused has come forward to speak about Kamla having been subjected to cruelty by the respondent soon before her death or even prior to thereto. There are material contradictions and serious improvements also in the statements of PW1 Dharampal, PW2 Nepal Singh and PW8 Kanta. According to Dharampal, deceased Kamla had visited their house 14 days prior to the occurrence whereas Nepal Singh stated that she came to their house about 25 – 26 days prior to the occurrence and disclosed about the demand of dowry whereas PW 8 Smt. Kanta stated that her daughter disclosed about demand of dowry three days prior to the occurrence. They made material improvements while deposing before the court from their statements before the police. Dharampal in his application (exhibit Ka 1) submitted on 14.10.1993, did not mention anything about the demand of dowry or harassment or cruelty on account of demand of dowry whereas in his written application (exhibit Ka 2) submitted on 21.10.1993 he has mentioned that Kamla was harassed for bringing inadequate dowry by her husband, father-in-law and mother-in-law and they were also giving her beatings but while appearing the court Dharampal stated that they were demanding colour 10 TV or Rs. 10,000/-. Nepal Singh and Smt. Kanta also deposed on the same lines. In view of the above discussed evidence, I am of the opinion that prosecution has failed to establish the necessary ingredients of offences punishable under sections 304B, 498A IPC and section 4 of Dowry Prohibition Act that the deceased was subjected to cruelty or harassment by her husband or father-in-law or mother- in-law soon before her death for or in connection with demand of dowry. In these circumstances, no interference with the impugned judgment is called for and the same is maintained. Therefore, the appeal is dismissed having no merit. (Nirmal Yadav, J) 09.04.2010 SKS