IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 57 of 2001 Anupam Dixit S/o Shri Bhagwati Saran Dixit Lecturer Physics, Government Inter College Khatima, Udham Singh Nagar …..…Appellant Versus State of Uttaranchal (Uttarakhand) ……….Respondent Shri Arvind Vashisth, Advocate, and Shri B.S. Adhikari, Advocate, present for the appellant. Shri Amit Bhatt, A.G.A., present for the State. Hon'ble Prafulla C. Pant, J. Hon'ble V.K.Bist, J. Oral: Hon'ble Prafulla C. Pant,J. This appeal, preferred under section 374 of Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 23.03.2001, passed by Additional Sessions Judge, Haldwani, District Nainital, in Sessions Trial no. 481 of 1995, whereby said court has convicted accused/appellant Anupam Dixit under section 304B 2 of Indian Penal Code, 1860 (for short IPC), and sentenced him to imprisonment for life. 2. Heard learned counsel for the parties, and perused the lower court record. 3. Prosecution story, in brief, is that accused/appellant Anupam Dixit got married to Alka Mishra (deceased) on 21.02.1987, at Kanpur, whereafter she started living with her husband at Khatima. Accused/appellant Anupam Dixit was a Lecturer in Government Inter College, Khatima. The couple used to live on rental accommodation in the house of one Jagdish Chandra Sharma (since died). On 03.10.1988, at at about 04.00 p.m., two girls who used to come for tuition in the house of the accused, came there, and saw that that Alka @ Babli (wife of the accused) was hanging from a fan. They told the landlord who made a report (Ex. A9) on the very day (03.10.1988) at Police Station Khatima. It appears that the accused also came back to his house, and information was sent by someone to the parents of the deceased at Kanpur. The parents namely P.W.2 Kailash Narayan Mishra, and P.W.3 Gyanwati Mishra reached Khatima, but they gave statement to the police that they had no suspicion against the accused/ appellant Anupam Dixit. Meanwhile, on 03.10.1988, 3 police had already taken the dead body of Alka @ Babli in their possession, and inquest report (Ex. A1) was prepared alongwith other necessary papers, e.g., letter to Chief Medical Officer (Ex. A10), sketch of the dead body (Ex. A11), police form no. 13 (Ex. A12), and sample seal (Ex. A15). On 04.10.1988, P.W.7 Dr. Ravi Bhushan, Abbhi, conducted post-mortem examination on the dead body of Alka @ Babli alongwith another Medical Officer Dr. P.N. Saxena. It was observed by the Medical Officers in the autopsy report (Ex. A16) that there was a ligature mark around the neck with interruption on the back of the neck as ante-mortem injury. The two medical officers opined that deceased had died of asphyxia due to hanging. It appears that on 12.10.1988, (about a week after the incident), P.W.2 Kailash Narayan Mishra (father of the deceased) gave a report (Ex. A5) to the Superintendent of Police stating that accused/appellant used to drink alcohol, and harassed his daughter Alka @ Babli. He also mentioned in the said report dated 12.10.1988, that accused Anupam Dixit used to beat his wife (deceased). However, there was no mention of demand of dowry in said report. Subsequent to that, on 20.10.1988, a representation (Ex. A6) was given by P.W.2 Kailash Narayan Mishra to Home Minister of State of Uttar Pradesh requesting for investigation by Criminal Investigation 4 Department (for short CID) on which the investigation was given to said agency. P.W. 10 Deputy Superintendent of Police Surendra Pal Singh started investigation of the case whereafter it was transferred to P.W.8 Dy. Superintendent of Police S.K. Pathak, and ultimately the investigation was completed by P.W.9 Superintendent of Police Ashok Kumar Tamta .The letters (Ex. A2 and Ex. A3) were recovered from the house of the accused/appellant one of which dated 17.03.1988, was written by accused, and another (undated) was written by the deceased. Said letters indicated that the deceased were not happy with each other. The two letters were sent to Forensic Laboratory, Agra, for examination. P.W.4 Abhijit Mukherjee, Hand Writing Expert, proved that letter (Ex.A2) was written by the husband (accused/appellant). The Investigating Officer took opinion from another medical expert P.W.13 Dr. N.N. Srivastav after giving photographs of the deceased to him who opined that it could be or could not be a case of suicide. On completion of investigation, charge sheet (Ex. A19) was filed by the Investigating Officer against accused/appellant Anupam Dixit for his trial in respect of offence punishable under section 304B IPC. 4. The Magistrate, on receipt of the charge 5 sheet, after giving necessary papers, as required under section 207 Cr.P.C., appears to have committed the case to the court of Sessions for trial. (Earlier Khatima was part of District Nainital, now part of district Udham Singh Nagar). On 23.05.1997, Additional Sessions Judge, Nainital, after hearing the parties, framed charge of offences punishable under section 304B, and 498A IPC, against accused Anupam Dixit, who pleaded not guilty, and claimed to be tried. On this, prosecution got examined P.W.1 Balbeer Singh (who proved the inquest report, and recovery of two letters), P.W.2 Kailash Narayan Mishra (father of the deceased), P.W.3 Gyanwati Mishra (mother of the deceased), P.W. 4 Abhijit Mukherjee (hand writing expert), P.W.5 Vipin Kumar Sharma (son of the landlord of the accused), P.W.6 Harikant Tripathi (Sub-Divisional Magistrate), P.W.7 Dr. Ravi Bhushan (who conducted post-mortem examination), P.W.8 S.K. Pathak, Dy. Superintendent of Police (who partly investigated the crime), P.W.9 Ashok Kumar Tamta, Superintendent of Police (who started investigation), P.W. 10 Dy. Superintendent of Police Surendra Pal Singh (who started investigation), P.W. 11 Vipin Kumar, P.W.12 Head Constable Ved Prakash Sharma, and P.W.13 Dr. N.N. Srivastav (the medical expert). The oral and documentary evidence was put to the accused under section 313 Cr.P.C., in 6 reply to which he pleaded that though he got married to the deceased who died on 03.10.1988, but the evidence against him is false. However, no evidence in defence was adduced. The trial court, after hearing the parties, found that prosecution has successfully proved charge of offence punishable under section 304B IPC, against accused Anupam Dixit, and he was convicted accordingly. After hearing on sentence, the trial court sentenced the convict to imprisonment for life under section 304B IPC. Aggrieved by said judgment and order dated 23.03.2001, passed by Additional Sessions Judge, Haldwani, District Nainital, in Sessions Trial No. 481 of 1995, this appeal is filed by the convict. 5. Before further discussion, we think it just and proper to mention the ante-mortem injury mentioned in the autopsy report (Ex. A16) by P.W.7 Dr. Ravi Bhushan, Abbhi, and one Dr. P.N. Saxena, who conducted post-mortem examination on 04.10.1988, on the dead body of Alka @ Babli (wife of the accused) the injury is being reproduced as under:- “Ligature mark 33cm X 2 1/2cm present on front of both sides of neck interpreted at left side back of neck. Under ligature mark subcutaneous tissue is dry white, and glistening. Platysma steano mastoid of shooth of carotid arteries 7 lacerated. Ligature mark situated between larynx and chin obliquely placed following line of manobile “. The team of medical officers opined in the autopsy report that deceased had died of asphyxia due to hanging. P.W.7 Dr. Ravi Bhushan Abbhi, who was got examined by the prosecution has proved the fact that post mortem was conducted,and autopsy report was prepared on 04.10.1988, i.e., next day after the death of the deceased. There was no other mark except the ligature mark as quoted above found on the dead body by the team of Doctors. Though, prosecution has relied on the evidence of P.W.13 Dr. N.N. Srivastav who has stated that the case is not necessarily that of suicide, but the statement in our opinion is of no help to the prosecution for the reason that neither said witness has seen the place of incident nor seen the dead body nor seen the SAREE by which the deceased committed suicide. He has simply given statement by seeing the photographs of the dead body of deceased. In the circumstances, unlike trial court, we are not inclined to give weight to the evidence of P.W. 13 Dr. N.N. Srivastav as against the autopsy report which was prepared by the two medical officers after conducting post-mortem examination on the dead body of the deceased. In our 8 opinion, the trial court has erred in law in relying the testimony of P.W. 13 Dr. N.N. Srivastav who had simply given his statement based on photographs. 6. To constitute an offence punishable under section 304B IPC, i.e. the offence of dowry death it is necessary for the prosecution to show that the woman who has died unnatural death within a period of seven years of her marriage, must have been subjected to cruelty in connection with some demand of dowry. Merely by proving unnatural death within seven years of marriage, the provisions of section 304B IPC, are not attracted unless it is shown that the accused made demand of dowry, and for non fulfillment thereof the deceased was subjected to cruelty. In the present case there was no first information report lodged by anyone alleging that the accused made demand of dowry, and for non fulfillment thereof deceased was subjected to cruelty. It is admitted that accused was married to deceased in February 1987, and deceased died unnatural death (suicidal) on 03.10.1988. Soon after the incident, it was Jagdish Chandra Sharma, landlord of the couple who reported to the police that deceased had committed suicide as is clear from Ex. A9 on the record, proved by P.W. 5 Vipin Kumar Sharma, son of the landlord (as the landlord had since died). From the statement 9 of P.W.2 Kailash Narayan Mishra (father of the deceased), and P.W.3 Gyanwati Mishra (mother of the deceased) it is clear that they got information about death of their daughter in the night of 03.10.1988, whereafer they reached Khatima next day. Both of them admit that they gave statements to the police that they have no complaint against the accused (husband of the deceased). This fact gets further corroboration from the statement of P.W.10 Surendra Pal Singh, Dy. Superintendent of Police, who started investigation as he has stated in the cross-examination that on 04.10.1988, Kailash Narayan Mishra gave statement that he had no suspicion against accused (Anupam Dixit). He has further stated in the cross- examination that Gyanwati Mishra also gave a similar statement. It is only in the report dated 12.08.1988 (Ex. A5) given by P.W.2 Kailash Narayan Mishra (after eight days of the incident) in which he alleged that his son-in-law (Anupam Dixit) was a drunkard, and used to beat his wife but, even in this report there is no mention of demand of dowry. Subsequent to that, on 20.10.1988 (after sixteen days of the incident) P.W.2 Kailash Narayan Mishra made a representation (Ex. A6) to the Home Minister seeking investigation of death of his daughter through CID. Even in said representation he did not mention that accused demanded any dowry. For a first time P.W.2 Kailash 10 Narayan Mishra , and his wife P.W. 3 Gyanwati Mishra make a statement in the court that a car, and a plot was demanded in the dowry by the accused. While making said statement P.W. 2 Kailash Narayan Mishra does not say that deceased was subjected to cruelty for non fulfillment of demand of dowry. In the circumstances, we find that the trial court has misread the evidence on record in coming to the conclusion that the prosecution has proved the charge of offence of dowry death punishable under section 304B IPC, against accused/appellant Anupam Dixit. 7. Much reliance was placed on behalf of the prosecution on the letters Ex. A2 written by the accused/appellant, and letter Ex. A3 written by the deceased which were found from the accommodation in which the two were residing. We have gone through the two letters. In none of the two letters demand of dowry is mentioned. In the letter dated 17.03.1988 (Ex. A2) purporting to have been written by the husband (accused/appellant) only this much mentioned by him that he takes alcohol. In said letter accused has asked uncle of the deceased to take back his daughter. (Uncle Kailash Narayan Mishra (P.W.2) is said to have been adopted the deceased as his daughter). The another letter Ex. A3 which is said to have been written by the deceased also does not 11 disclose anything relating to demand of dowry or harassment for non fulfillment thereof. This letter is addressed by the deceased to her uncle and aunt. Strangely, none of the letters appear to have been posted, and were lying with vanity box of the deceased. From the statement of P.W.10 Surendra Pal Singh, Dy. Superintendent of Police, who started investigation, it appears that when he made inquiries from one Ram Lalit Sharma, and Moh. Naeem it was disclosed that on the day of incident they had supplied fish to the accused due to which the accused had a quarrel with Alka (deceased) as she was a vegetarian while accused Anupam Dixit was a non- vegetarian. 8. Learned counsel for the State/respondent submitted that it was unnatural on the part of the deceased to commit suicide without bolting the door from inside. We do not find that reason is sufficient to come to the conclusion that deceased did not commit suicide but was killed by the accused, as interpreted by the trial court. From the inquest report (Ex. A1) it is clear that the place where the deceased had committed suicide, over the double bed, a table was found kept indicating deceased had attempted to commit suicide, and succeeded in it. It is not necessary for us to repeat as to what has been 12 concluded by the team of two medical officers who conducted post-mortem examination, and opined that it was a case of asphyxia by hanging. 9. In the above circumstances, having reassessed the entire evidence on record, we find since it is not proved by the prosecution that there was any demand of dowry made by the accused, and for its non fulfillment the deceased was subjected to cruelty, as such we are of the view that ingredients of the offence punishable under section 304B IPC, are not made out as against accused/appellant Anupam Dixit. Therefore, this appeal deserves to be allowed. 10. Accordingly, the appeal is allowed. Impugned judgment and order 23.03.2001, passed by Additional Sessions Judge, Haldwani, District Nainital, in Sessions Trial no. 481 of 1995, is set aside. Conviction, and sentence recorded by the trial court under section 304B IPC, against accused/appellant Anupam Dixit stands set aside. He is acquitted of the charge. He is on bail. He need not to surrender. Lower court record be sent back. (V.K. Bist, J.) (Prafulla C. Pant, J.) 02.05.2011 Parul