IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1448 OF 2001 (OLD NO.109/1996) Jai Pal Singh S/o Ram Singh R/o Barkhera Pandey, District Nainital ……… Appellant Versus The State ……… Respondent Dated: March 04, 2009 Smt. Pushpa Joshi, learned counsel for the appellant Sri M.A. Khan, 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 27.11.1995 passed by Special Judge (Additional Sessions Judge), Nainital in Sessions Trial No.77 of 1990, State Vs. Jaipal Singh & others, whereby the appellant/accused was found guilty for the offences punishable under Sections 304-B and 498-A of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and was sentenced to ten years’ rigorous imprisonment u/s 304-B. However, the co- accused, namely, Ram Singh, Chandrapal Singh and Smt. Usha Devi were acquitted by the trial court of the charge levelled against them. 2. Heard Smt. Pushpa Joshi, learned counsel for the appellant as well as Sri M.A. Khan, learned brief holder for the State and perused the entire material available on record. 3. In brief, the prosecution case is that on 2.6.1989 Wajeer Ahmed (PW5) filed an application at 2 Police Station, Kashipur with the averments that on the same day i.e. on 2.6.1989 at 05:00 A:M Ram Lal S/o Sukha Singh came to his house and he informed him that Smt. Urmila-wife of the appellant/accused Jaipal Singh has died by burning herself in the garden of Radha. This application is Ext.Ka-10. On the basis of this report, Sub Inspector Sri R.C. Dixit (PW4) reached at the place of occurrence and prepared the inquest report on the supervision of S.D.M., Kashipur. That inquest report is Ext.Ka-2. Along with the inquest report, sketch of the dead body i.e. Ext.Ka-3 and other papers viz. Challan Lash Ext.Ka-4, Police Form No.33 Ext.Ka-5 and letter to Kashipur Hospital for conducting the postmortem i.e. Ext.Ka-6 were also prepared. Postmortem of the dead body of the deceased Smt. Urmila was conducted by Dr. Arvind Agarwal (PW8) on 2.6.1989 at 5:10 P:M. That postmortem report is Ext.Ka-12. 4. On 3.6.1989, Om Prakash (PW1), father of the deceased Smt. Urmila, also lodged the report at Police Station, Kashipur with the averments that before two years of the said incident, his daughter Smt. Urmila Devi was married to the appellant/accused Jaipal Singh and he has given dowry as per his status. It was further stated that the appellant/accused was harassing her daughter for the demand of dowry and he was demanding Rs.5,000/- in cash from his daughter. On 1.6.1989 at about 12 O’ Clock his son in-law came to his house and demanded Rs.5,000/- from him and also said that if the demand of money would not met then they may bring back her daughter otherwise he would kill his daughter. At that time Chandarpal Singh and Harcharan Singh were also there. It was further averted that on 2.6.1989 he got the information that the appellant/accused has killed his daughter and the father of the 3 appellant/accused Ram Singh, brother Chandrapal Singh and wife of his brother Smt. Usha Devi were also involved in the murder. With the same averments, Sri Om Prakash (PW1) lodged the report at Police Station Kashipur on 3.6.1989 at 02:00 P:M. That report is Ext.Ka-1. On the basis of this report, Chik F.I.R. i.e. Ext.Ka-7 was prepared by Head Constable Mohd. Taheer. The necessary entries were also made in the G.D., carbon copy of which is Ext.Ka-8. The site-plan of the place of occurrence was prepared by Sub Inspector R.C. Dixit (PW4) i.e. Ext.Ka-9. The investigation of this case was entrusted to Sri Pradeep Chand (PW7), Circle Officer, who during the course of investigation recorded the statement of the witnesses and after completing the investigation he filed the charge sheet against the appellant/accused Jaipal Singh and the other co-accused persons, namely, Ram Singh, Chandrapal Singh and Smt. Usha Devi. That charge sheet is Ext.Ka-11. 5. Learned Additional Chief Judicial Magistrate, Kashipur committed the case to the court of Sessions on 9.3.1990 after giving necessary copies to the appellant/accused and the other co-accused (acquitted by the trial court), as required u/s 207 Cr.P.C. 6. On 30.5.1990, learned Sessions Judge, Nainital framed the charge of offence punishable u/s 304-B r/w 34 I.P.C. against the appellant/accused and the other co-accused persons (acquitted by the trial court). The charge was read over and explained to the appellant/accused and the co-accused persons, who pleaded not guilty and claimed to be tried. On the same day i.e. on 30.5.1990, charge u/s 498-A was also framed against the appellant/accused Jaipal Singh by the learned Session Judge, Nainital. The charge was read 4 over and explained to the appellant/accused, who pleaded not guilty and claimed to be tried. 7. In order to prove its case, the prosecution has examined P.W.1 Om Prakash-the complainant and father of the deceased Smt. Urmila Devi, P.W.2 Harcharan Singh, P.W.3 Suraj Singh, P.W.4 Sub Inspector R.C. Dixit, P.W.5 Wajeer Ahmed, P.W.6 Constable Ram Singh, P.W.7 Addl. Deputy S.P. Pradeep Chand-Investigating Officer of the case and P.W.8 Dr. Arvind Aggarwal, who has conducted the postmortem of the dead body of the deceased Smt. Urmila. 8. After that the statement of the appellant/accused and the co-accused, namely, Ram Singh, Chandrapal Singh and Smt. Usha Devi were recorded u/s 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 them. However, in defence, they have not produced any oral or documentary evidence. 9. After appreciating the entire evidence available on record and hearing learned counsel for the parties, learned Special Judge (Additional Sessions Judge), Nainital vide his judgment and order dated 27.11.1995, convicted and sentenced the appellant/accused Jaipal Singh as above. However, the co-accused persons, namely, Ram Singh, Chandrapal Singh and Smt. Usha Devi were acquitted by the trial court for the charge levelled against them. Feeling aggrieved with the said judgment and order dated 27.11.1995, the appellant/accused has preferred the present appeal. 5 10. Before further discussion, it is pertinent to mention the ante-mortem injuries found on the body of the deceased Smt. Urmila. The postmortem of the dead body of the deceased was conducted by Dr. Arvind Aggarwal (PW8) on 2.6.1989 at 05:10 P:M and he has found the following ante-mortem injuries on the body of the deceased, which are reproduced as under:- (i) Ante-mortem superficial burn involving face, neck, trunk, interior and posterior aspect. Both upper extremities and both lower extremities sparing the lower 1/3 of both lower leg and foot (dorsal and ventral surface). Peeling of skin present at several places. Area of redness present at several places. Vesicle present at valva only. Charring of hairs present on scalp and eyebrows and eye lids. Total burn is superficial. Total burn is about 95%. Opinion:- Death is due to asphyxia caused by ante-mortem burn (about 95%). 11. To prove the above-noted ante-mortem injuries, the prosecution has examined Dr. Arvind Aggarwal (PW8), who has stated that on 2.6.1989 he was posted as Cardiologist at L.D. Hospital, Kashipur. He further stated that on that day he has conducted the postmortem of the dead body of the deceased Smt. Urmila and he has found the above-noted ante-mortem injuries on her body. He has also prepared the postmortem report at the time of conducting the postmortem, which is Ext.Ka-12. 12. Further to prove its case, the prosecution has examined Om Prakash (PW1), who has stated that his 6 daughter Smt. Urmila Devi was married to the appellant/accused Jaipal Singh before more than one year of the said incident. After the marriage the appellant/accused used to torture his daughter for bringing Rs.5,000/- in dowry. Before one day of the said incident the appellant/accused came to his house at Babarkheda and made a demand of Rs.5,000/- as dowry and said that if his demand is not fulfilled then he may bring back his daughter otherwise he (appellant/accused) would kill his daughter. It was also stated that Harcharan Singh and Suraj Singh were also present at that time. Next day he got the information that his daughter was killed and Jaipal Singh, Chandrapal Singh, Ram Singh and Smt. Usha Devi were involved in her murder. Thereafter he lodged the report of the said incident at the Police Station Kashipur, that report is Ext.Ka-1. This witness was cross-examined at length by the defence counsel but nothing has come out from his statement which may create any doubt in his statement. The statement of this witness is reliable, believable and inspires confidence. 13. P.W.2 is Harcharan Singh, who has stated that the daughter of Om Prakash (PW1) was married to the appellant/accused and Om Prakash (PW1) is his neighbour. He further stated that one day before the said incident when he was going on his work then he heard the noise coming from the house of Om Prakash (PW1). After hearing the noise, he went to the house of Om Prakash (PW1) where Om Prakash and his family members were present and the appellant/accused was also there, who was demanding Rs.5,000/- in dowry and was also threatening them that if the demand would not met then he would kill his daughter. After that he went to his house and next day he came to know that Smt. 7 Urmila is killed by her in-laws. This witness was cross- examined at length by the defence counsel but nothing has come out from his statement which may create any doubt in his statement. The statement of this witness is reliable, believable and inspires confidence. 14. P.W.3 is Suraj Singh, who has stated that the Smt. Urmila (deceased) was his sister. She was married to the appellant/accused before two years of the said incident. After the marriage, the appellant/accused started demanding dowry. It was further stated that his sister has also complained to them that Jaipal Singh (appellant/accused), Ram Singh, Chandrapal Singh and Smt. Usha Devi used to beat her for the demand of dowry and they are demanding Rs.5,000/- in dowry. It was also stated that before one day of the said incident the appellant/accused came to his house and made a demand of Rs.5,000/-. Next day he came to know that the appellant/accused and the other co-accused (acquitted by the trial court) have killed her sister. This witness was cross-examined at length by the defence counsel but nothing has come out from his statement which may create any doubt in his statement. The statement of this witness is reliable, believable and inspires confidence. 15. P.W.4 is Sub Inspector Sri R.C. Dixit, who has stated that in June, 1989 he was posted as Sub Inspector at Police Station, Kashipur. On 2.6.1989, Wajeer Ahmed, Chowkidar, Village Barkhera Pandey, P.S. Kashipur has given a report in the police station at 07:50 A:M and Ram Lal was also present with him at that time. This report was about the death of Smt. Urmila. On the basis of this information, he accompanied by other constables reached at the place of occurrence. S.D.M, Kashipur also reached 8 at the place of occurrence and on his supervision he has appointed the Panchas and prepared the inquest report of the dead body of the deceased, which is Ext.Ka-2. Along with the inquest report, he has also prepared sketch of the dead body i.e. Ext.Ka-3, Challan Lash i.e. Ext.Ka-4, Police Form No.33 i.e. Ext.Ka-5 and letter to Kashipur Hospital for conducting the postmortem i.e. Ext.Ka-6. After that the dead body was sent for postmortem in sealed condition through Constables Ram Singh and Jagat Singh and some other papers were also given to them. On 3.6.1989 at 02:00 P:M, Om Prakash (PW1) lodged the report (Ext.Ka-1) of the said incident at the Police Station, Kashipur. On the basis of this report, Chik F.I.R. i.e. Ext.Ka-7 was prepared by the Head Mohirror Taheer and the necessary entries were also made in the G.D. by him, carbon copy of the G.D. is Ext.Ka-8. During the course of investigation, he recorded the statement of the complainant Om Prakash (PW1) and other witnesses. On 3.6.1989 after inspecting the place of occurrence he prepared the site-plan i.e. Ext.Ka-9. 16. P.W.5 is Wajeer Ahmed, who has stated that on 2.6.1989 he was Chowkidar at Village Barkhera Pandey. On that day at about 05:00 A:M Ram Lal (brother of Ram Singh) came to him and told him that deceased Smt. Urmila (wife of the appellant/accused) has burnt herself in the garden. He also asked him to inform the police. On this, he alongwith Ram Lal went to Police Station Kashipur where Ram Lal wrote the report on his behalf on which he has put his thumb impression. That report is Ext.Ka-10. 17. P.W.6 is Ram Singh, who has stated that the dead body of the deceased was handed over to him and Constable Jagat Singh for postmortem and other 9 documents were also given to him. He has brought the dead body to L.D. Bhatt Hospital, Kashipur for postmortem in a sealed condition. 18. P.W.7 is Pradeep Chand, who has stated that on 5.6.1989 he was posted as Circle Officer, Kashipur and on that day investigation of this case was entrusted to him. During the course of investigation he recorded the statement of the witnesses and after completing the investigation he filed the charge sheet (Ext.Ka-11) against the appellant/accused and the other co-accused persons (acquitted by the trial court). 19. After that the statement of the appellant/accused and the co-accused, namely, Ram Singh, Chandrapal Singh and Smt. Usha Devi were recorded u/s 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 them. However, in defence, they have not produced any oral or documentary evidence. 20. From the evidence discussed above, it has come in the statement of Om Prakash (PW1) that her daughter Smt. Urmila Devi was married to the appellant/accused Jaipal Singh before more than one year of the said incident. After the marriage the appellant/accused used to torture his daughter for bringing Rs.5,000/- in dowry. Before one day of the said incident the appellant/accused came to his house at Babarkheda and made a demand of Rs.5,000/- as dowry and said that if his demand is not fulfilled then he may bring back his daughter otherwise he (appellant/accused) would kill his daughter. It was also stated that Harcharan Singh and Suraj Singh were also present at 10 that time. Next day he got the information that his daughter was killed and Jaipal Singh, Chandrapal Singh, Ram Singh and Smt. Usha Devi were involved in her murder. Thereafter he lodged the report of the said incident at the Police Station Kashipur, that report is Ext.Ka-1. The statement of this witness gets corroboration from the statement of Harcharan Singh (PW2) and Suraj Singh (PW3). The statement of Om Prakash (PW1) is further corroborated from the postmortem report (Ext.Ka-12) and also from the statement of Dr. Arvind Aggarwal (PW8) who has conducted the postmortem of the dead body of the deceased. Thus, from the facts and circumstances as narrated above, it is proved by the prosecution beyond reasonable doubt that the appellant/accused has committed offence punishable under Sections 304-B and 498-A I.P.C. 21. Smt. Pushpa Joshi, learned counsel for the appellant/accused has submitted that she does not want to challenge the conviction of the appellant/accused and has stated that the conviction, awarded by the trial court, is correct and justified. She further submitted that the appellant is about 41 years’ old and he is ill and nobody is there in his house to look after his old parents. It was submitted that the appellant/accused is in jail since last eight years and ten months, hence, she prayed that the sentence against the appellant/accused may be reduced to the sentence already undergone by him. Sri M.A. Khan, learned brief holder for the State has submitted a report dated 17.2.2009 received from the Superintendent, District Jail, Nainital in which it is stated that the appellant/accused has passed 07 years 04 months and 15 days in jail in connection with the above-said crime. 11 22. After considering the entire facts and circumstances of the case and hearing learned counsel for the parties, it is expedient in the interest of justice to reduce the sentence of the appellant/accused to the sentence already undergone by him. 23. For the reasons recorded above, the appeal is party allowed. The judgment and order dated 27.11.1995 passed by Special Judge (Additional Sessions Judge), Nainital in Sessions Trial No.77 of 1990, State Vs. Jaipal Singh & others, convicting the appellant/accused under Sections 304-B and 498-A is hereby confirmed. However, the sentence of 10 years’ R.I. against the appellant/accused, as awarded by the trial court, is set aside, instead his sentence is reduced to the sentence already undergone by him. 24. The accused/appellant Jaipal Singh be released forthwith if he is not wanted in any other case. 25. Let a copy of this judgment along with the record of the court below be sent back to the court concerned for compliance of the order forthwith. (Dharam Veer, J.) 04.03.2009 RG