IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 483 of 2001 (Old No. 894 of 1995) Charan Jeet & Ors. .…. Appellants/Accused Versus State …………… Respondent May 3, 2010 Smt. Monica Pant, Advocate holding brief of Mr. Arvind Vashistha, Advocate for the appellants. Mr. Prabhakar Joshi, Brief Holder for the State/respondent. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellants u/s 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the judgment and order dated 20.5.1995 passed by the Additional Sessions Judge, Roorkee in Sessions Trial No. 111 of 1993, State v. Charan Jeet & Ors., whereby each of the appellants/accused, viz., Charan Jeet, Smt. Shanti, Pradeep Kumar and Chaman Lal @ Bittoo have been convicted under Section 304-B of Indian Penal Code, 1860 (for short, IPC) and each of them has been sentenced to R.I. for 10 years. However, co-accused Praveen Kumar was acquitted of the charge of offence punishable under Section 304-B IPC. 2. Appellant no. 1 Charan Jeet and appellant no. 3 Pradeep Kumar died during the pendency of this appeal. Hence, appeal of Charan Jeet and Pradeep Kumar stood abated by the order dated 22.2.2010 passed by this Court. 3. The prosecution case, in brief, is that PW1 Om Prakash Bedi lodged an FIR with PS Roorkee with the averments that his daughter Alka was married to 2 appellant no. 3 Pradeep Kumar (appeal against whom has been abated) about three years and a quarter ago. Pradeep Kumar has taken his wife Alka with himself to Mumbai because he was serving there. After one year of the marriage, he came to know that Pradeep Kumar was already married before getting married with his daughter Alka and he was also a father of one daughter. When he inquired about this fact from the parents of Pradeep Kumar, then they had assured him that his daughter would not face any trouble. But he came to know from his daughter that the character of Pradeep Kumar was not good and he used to beat his daughter daily after taking liquor and was demanding a VCP and rupees 20 to 25 thousands for a house and also asking his daughter to do some job. She tried but could not get the job. Due to this reason, she was harassed by the appellants accused, who told her to bring money from her father otherwise they would not leave her alive. Pradeep Kumar had also told that he would go and live with his first wife. The complainant received number of letters from Alka regarding these problems. A day before, i.e. on 8.9.1992, in the evening Bittoo, the brother of Pradeep, had come to Muzzafarnagar at 7 pm and informed him that Alka was not feeling well. On this information, he had gone to Roorkee and in Roorkee he came to know that Alka was dead. He had the doubt that the appellants accused murdered his daughter by poisoning her because he was unable to fulfill their demands. With these averments the FIR Ex. Ka-45 was lodged on 9.9.1992 by PW1. On the basis of this FIR chick FIR was prepared by PW9 Head Moharrir Bhawar Singh on the same day at 10.35 am, that Ex. Ka-31. He also made the necessary entries in the GD, copy of GD is Ex. Ka-32. Investigation of this case was entrusted to PW7, Circle Officer, Mohan Singh Bangayal. The inquest report Ex. Ka-14 was prepared on 3 the same day i.e. on 9.9.1992 by PW8 SI Prem Shankar Sharma. Along with the inquest report, letter to CMO Ex. Ka-37, police form no. 13 Ex. Ka-38, photolash Ex. Ka-39, two other letters to CMO Ex. Ka-40 and Ka-41, police form no. 33 Ex. Ka-42 were also prepared by him. Thereafter post mortem of the dead body was conducted by PW2 Dr. MP Garg along with Dr. VL Verma on the same day at 3.30 pm. Post mortem report is Ex. Ka-36. During the course of investigation, the site plan Ex. Ka-33 of the place of occurrence was prepared. The I.O. also recorded the statements of the witnesses during the course of investigation and also collected the copies of diary, letters of the deceased and other documentary evidence and after completing the investigation, he filed the chargesheet Ex. Ka-35 against the accused appellants and the co-accused (acquitted by the trial court). Report from the Forensic Laboratory was also filed as Ex. Ka-44, which reveals that Aluminium Phosphite poison was found in the viscera of the deceased. 4. Learned ACJM, Roorkee, after giving the necessary copies of the documents to the accused appellants and co- accused (acquitted by the trial court) as prescribed under Section 207 Cr.P.C., committed the case to the Court of Sessions on 17.3.1993. Thereafter the case was transferred to Additional Sessions Judge, Roorkee for its disposal according to law. 5. On 26.5.1993, learned Additional Sessions Judge, Roorkee framed the charge against the accused appellants and the co-accused (acquitted by the trial court) under Section 304-B IPC. The charge was read over and explained to each of the accused appellants and the co- accused, who pleaded not guilty and claimed to be tried. 4 6. To prove its case, prosecution has examined PW1 Om Prakash Bedi, the complainant; PW2 Dr. MP Garg, who conducted the post mortem and prepared the post mortem report Ex. Ka-36; PW3 Baldesh, cousin sister of deceased Alka; PW4 Subhash Chandra; PW5 BS Chaudhary, handwriting expert; PW6 Dr. Ajay Kumar, who had medically examined Alka when she was first brought to the hospital and prepared medical report Ex. Ka-30; PW7 Circle Officer, Mohan Singh Bangayal, I.O. of the case; PW8 SI Prem Shankar Sharma; PW9 Bhawar Singh; PW10 Inspector Shailendra Bharadwaj, who started the investigation before transferring it to PW7, Mohan singh Bangayal, C.O. and PW11 Dr. SK Srivastava. 7. Thereafter, statements of each of the accused appellants and the co-accused (acquitted by the trial court) were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to them in question form, who denied the allegations made against them. DW1 Pradeep Kumar and DW2 Sohan Lal were examined in defence. However, no documentary evidence was produced in defence. 8. After hearing learned counsel for the parties and appreciating the evidence on record, the learned Additional Sessions Judge, Roorkee vide his judgment and order dated 20.5.1995 convicted and sentenced to the accused appellants as discussed above. Against the aforesaid judgment and order dated 20.5.1995, the present appeal has been preferred by the accused appellants. 9. Before any further discussion, it would be pertinent to mention the post mortem report Ex. Ka-36 prepared by PW2 Dr. MP Garg, who along with Dr. VL Verma had 5 conducted the post mortem on the dead body of deceased Alka on 9.9.1992 at 3.30 pm, wherein it has been reported as under: “No external injury seen on body. Cause of death could not be ascertained. Hence, viscera preserved.” 10. To prove the aforementioned post mortem report Ex. Ka-36, the prosecution has examined PW2 Dr. MP Garg, who has proved the contents of same and further stated that the deceased might have died on 8.9.1992 in the evening at about 7 pm. As the cause of death could not be ascertained, hence, viscera was preserved. Post mortem was conducted by him along with Dr. VL Verma. 11. To further prove its case, the prosecution has examined PW1 Om Prakash Bedi, who has reiterated the version made by him in the FIR Ex. Ka-45. He has also proved the diary Ex. Ka-1 written by his daughter Alka and also the letters written by her as Ex. Ka-2 to Ka-13. He has further stated that he reached in the hospital in the evening of 8.9.1992. The employees of the hospital did not allow him to see the dead body of his daughter and told him that it was a suspected case of poisoning. Then he went to the house of the accused appellants but nobody met him there. Then he went to Muzzafarnagar in the night and came back in the next morning and went to the hospital and thereafter report Ex. Ka-45 was lodged by him. Inquest report Ex. Ka-14 was prepared before him and he had also singed on it. Fard of diary was also prepared by the I.O., that is Ex. Ka-15. Fard of possession of letters of his daughter are Ex. Ka-16, Ex. Ka-17 and Ka- 18. After the post mortem, the dead body was handed over to him and he had cremated the dead body. In the cross- examination, he has stated that about the demand of 6 rupees 20 to 25 thousand is not written in any letters of his daughter Alka. He has further stated that when the she had come from Mumbai to Muzzafarnagar, then she had complained about the marpit committed with her. His daughter Alak never wrote any letter to him about her problems but she used to write letters to her brother. Before the said incident, Alka had come to Muzzafarnagar on 13.8.1992. He has further stated that his daughter was BA pass and had also completed the course of typing and shorthand and had also done the course of computer. He has further stated that his daughter was sad due to the reason that her husband was alcoholic and he was only 8th pass. Her husband was taking excess liquor and he was also a gambler and used to commit marpit with Alka. She was sad due to behavior of her husband because he was not performing his duties and was not maintaining her. This witness has further stated that after the death of his daughter, he came to know that there was some plot in her name at Roorkee. Alka was in job and the said plot was purchased by her out of her own income. She was doing the job before her marriage. When her husband Pradeep was removed from service in Mumbai and came to Roorkee and no employment left with him, then her daughter searched the job. Her husband Pradeep Kumar had forced Alka for the job of rupees two thousand per month. 12. PW3 Baldesh has stated that Alka was known to her who was her cousin sister and she had a good relation with her. She used to come in her house. She has further stated that Alka used to write letters to her from Mumbai and in the letters she had wrote that her husband used to take liquor and was harassing her. She also used to go in the house of in-laws of Alka. She has further stated that mother of Alka told her that they were demanding VCR 7 and rupees 20 to 25 thousand. She has further stated that Alka died due to poison and she could not say who had given her the poison. In her cross-examination, she has stated that Alka had not written to her in any of the letters about the demand of VCR and cash amount. She has further stated that in the letters written to her by Alka, she had not complained about her brother-in- law, mother-in-law and father-in-law. She had only complained about her husband. Alka used to tell her that there was difference between the status of her husband and herself and because of this reason she was sad. 13. PW4 Subhash Chandra has stated that he used to visit the house of appellants accused. Jagdish had come to his house before the said incident and had told him that Alka was not happy and she was being harassed. He along with Jagdish had gone to the house of the accused appellants. Jagdish tried to convince them not to harass Alka because her father was ill. In his cross-examination, he has stated that before the said incident, when Pradeep Kumar, husband of Alka had returned from Mumbai, he had met Pradeep and Alka in their house, but Alka had not complained anything to him. 14. PW5 BS Chaudhay is handwriting expert, who has proved his report Ex. Ka-29. 15. PW6 Dr. Ajay Kumar has stated that he was posted in Civil Hospital, Roorkee on 8.9.1992 and on that day Alka was brought to the hospital by her husband Pradeep Kumar. At that time, she was unconscious. The condition of Alka was very bad. Police was informed and the patient was admitted. He has proved the medical report prepared by him as Ex. Ka-30. 8 16. PW7 Mohan Singh Bangayal has stated that on 8.9.1992, he was posted as C.O., Roorkee. On the report of PW1 Om Prakash Bedi, the case was registered in the police station. Chick FIR Ex. Ka-31 was prepared by Head Moharrir Bhawar Singh (PW9). He also made the necessary entry in the GD, copy of which is Ex. Ka-32. He has further stated that investigation of this case was entrusted to him. During the course of investigation, he recorded the statements of the witnesses. Under his investigation, the site plan Ex. Ka-33 was prepared by Inspector Shailendra Bharadwaj (PW10). He also taken the relevant papers in his possession and fard Ex. Ka-34 was prepared by Shaildendra Bharadwaj. He has also taken some letters in possession and prepared the fard Ex. Ka- 27. Some other letters were also taken in possession and fard Ex. Ka-17 and Ka-18 were prepared by Inspector Shailendra Bharadwaj. Viscera was sent in the laboratory for examination. Letters were sent to the expert for the report. After the completing the investigation, he has filed the chargesheet Ex. Ka-35 against the accused appellants and the co-accused (acquitted by the trial court). Fard Ex. Ka-15 was also prepared for taking in possession the letters and the diary. 17. PW8 SI Prem Shankar Sharma has stated that on 9.9.1992 he was posted in Kotwali Roorkee. At 7.30 am, he received a memo from the hospital. On this information, he had gone in the mortuary of Civil Hospital. Thereafter he prepared the inquest report Ex. Ka-14 of the dead body of Alka. Thereafter the dead body was sent for the post mortem through a police constable. Letter to the CMO Ex. Ka-37, challan lash Ex. Ka-38, photolash Ex. Ka-39. This witness has also proved the letters Ex. Ka-40 9 and Ka-41 written to the CMO. He also prepared the police form no. 33 which is Ex. Ka-42. 18. PW9 Head Constable Bhawar Singh has stated that on 9.9.1992 he was posted as Head Moharrir in Kotwali Roorkee. On the basis of report of PW1 Om Prakash Bedi, he prepared the chick FIR Ex. Ka-31. He also made the necessary entry in the GD, copy of GD is Ex. Ka-32. 19. PW10 Inspector Shailendra Bharadwaj has stated that on 9.9.1992, he was posted in Kotwali Roorkee as Inspector In-charge. Investigation of this case was scheduled to be done by the C.O. but on that day he had gone to Haridwar. Hence, he himself had taken the investigation in his hand and when the C.O. returned to Roorkee, he transferred the investigation to him. He has recorded the statement of the complainant. He has also prepared the fard of the letters given to him by the complainant, that is Ex. Ka-15. Likewise, he also prepared the fard Ex. Ka-16. The site plan Ex. Ka-33 of the place of occurrence was also prepared by him. Thereafter the C.O. had also inspected the place of occurrence in his presence. 20. PW11 Dr. SK Srivastava has stated that on 8.9.1992, he was posted at Civil Hospital, Roorkee. On that day, he had seen the suspected poisoning case of Alka W/o Pradeep Kumar. He has proved the Bed Head Ticket as Ex. Ka-43. 21. Thereafter, statements of each of the accused appellants and the co-accused (acquitted by the trial court) were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to them in question form, who denied the allegations made against them. DW1 10 Pradeep Kumar and DW2 Sohan Lal were examined in defence. However, no documentary evidence was produced in defence. 22. Learned Counsel for the accused appellants argued that on the basis of the evidence discussed above, the case against the accused appellants Smt. Shanti, mother-in- law of the deceased and Chaman Lal @ Bittoo, brother-in- law of the deceased for the offence punishable under Section 304-B IPC is not proved by the prosecution beyond reasonable doubt. I find substance in the argument of learned Counsel for the accused appellant for the following reasons: (i) That as per the evidence discussed above, the allegations have been made only against Pradeep Kumar, husband of deceased Alka, who was living with her wife (Alka) in Mumbai. Since he died during the pendency of appeal, hence, appeal was abated against him. Present appellants accused Smt. Shanti and Chamal Lal were living separately at Roorkee and there is no evidence in the file that they had harassed the deceased Alka before her death for the demand of dowry. (ii) That there is no evidence in the file that deceased Alka was subjected to cruelty by the present accused appellants Smt. Shanti and Chaman Lal @ Bittoo when she came back to Roorkee along with her husband Pradeep Kumar. (iii) That even there is no averment made in the letters written by Alka that the present accused appellants Smt. Shanti and Chaman Lal ever tortured her for the demand of dowry, due to which she died. Whatever allegations made in those letters and in the oral evidence adduced by the proseuciton, that are only against Pradeep Kumar (now deceased), 11 the husband of deceased Alka. No prosecution witness has specifically stated that the present accused appellants had tortured or harassed or committed any cruelty for the demand of dowry towards Alka soon before her death. Whatever evidence the prosecution has brought on record, that is only against Pradeep Kumar, husband of Alka, who has died now. (iv) That PW3 Baldesh has stated in her deposition that in the letters written to her by Alka, she had not complained about her brother-in-law and mother-in- law (i.e. the present accused appellants). She had only complained about her husband. Alka used to tell her that her status is different from the status of her husband and due to this reason she was sad. (v) That PW4 Subhash Chandra has stated that he used to visit the house of appellants accused. Before the said incident, when Pradeep Kumar, husband of Alka had returned from Mumbai, he had met Pradeep and Alka in their house, but Alka had not complained anything to him. (vi) That there is no evidence in file to establish that soon before her death, the deceased Alka was subjected to cruelty or harassment by the present accused appellants Smt. Shanti and Chaman Lal @ Bittoo for, or in connection with, any demand for dowry. 23. In view of my foregoing discussion and conclusion, the prosecution has failed to prove its case for the offence punishable under Section 304-B IPC against the present accused appellants Smt. Shanti and Chaman Lal @ Bittoo beyond reasonable doubt and they are entitled to get the benefit of the same. As such, the impugned judgment and order dated 20.5.1995 of the trial court is not correct and 12 justified and the same is liable to be set aside in respect of the present accused appellants only. 24. Accordingly, the appeal is allowed. The judgment and order dated 20.5.1995 passed by the Additional Sessions Judge, Roorkee in Sessions Trial No.111 of 1993, State v. Charan Jeet & Ors., convicting the appellants Smt. Shanti and Chaman Lal under Section 304-B IPC is hereby set aside in respect of these two appellants only. They are acquitted of the charges levelled against them and the sentence awarded to them to undergo R.I. for 10 years is hereby quashed. The appellants are on bail. Their bail bonds are cancelled. They need not surrender unless required in any other case. Appellant no. 1 Charan Jeet and appellant no. 3 Pradeep Kumar died during the pendency of this appeal and, therefore, appeal of Charan Jeet and Pradeep Kumar stood abated by the order dated 22.2.2010 passed by this Court. 25. Let the lower court record be sent back. PRABODH (Dharam Veer, J.) 3.5.2010