RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL GOVERNMENT APPEAL NO.1454 OF 2001 (Old No.1541 of 1996) The State Versus ……… Appellant 1. Om Prakash 2. Ram Bachhan 3. Smt. Dulari Devi W/o Ram Bachhan All R/o Chandrabhaga, P.S. Rishikesh, Distt. Dehradun .………Respondents Dated: June 2, 2010 Sri Amit Bhatt, learned Additional GA for the appellant/State. Sri Sandeep Tandon, learned counsel for respondents HON. DHARAM VEER, J. This appeal preferred by the appellant/State, under section 378 of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 22.04.1996 passed by the First Additional Sessions Judge, Dehradun, in Sessions Trial No.92 of 1993, State Vs. Om Prakash & others, thereby acquitting the respondents-accused Ram Bachhan, Smt. Dulari Devi and Om Prakash for the offences punishable under Sections 304-B and 498-A of the Indian Penal Code, 1860 (hereinafter to be referred as IPC). 2. I have heard learned counsel for parties and perused the entire material available on record. 3. Vide report dated 3.4.2000, CJM, Dehradun reported that the respondent-accused Dulari Devi has died, hence the appeal against Dulari Devi stands abated. 4. In brief the prosecution case is that PW2 Sawali Kumar moved an application with the averments that his 2 sister Smt. Gyanti Devi was married with the respondent- accused Om Prakash as per Hindu RITES and the dowry was given according to status. However, his sister was subjected to physical cruelty by her husband Om Prakash, father in law Ram Bachhan and mother in law due to demand of dowry. His sister came at her parental house several times and she used to tell that her in-laws were demanding money in dowry. Since the complainant and his family members were the poor persons, hence they could not fulfill the demand of dowry. It was further stated that on 17.6.1993 in the night in between 12 AM to 1 AM, his sister Smt. Gyanti Devi was set at fire by pouring kerosene oil due to non-fulfillment of demand of dowry. This information was given by Shiv Charan, neighbourer of his sister’s in-laws house. With the same averments, an FIR Ex.Ka-1 was lodged by PW2 Sawali Kumar on 18.6.93 at 9:35 AM at PS Rishikesh, Distt. Dehradun. On the basis of that FIR, Constable Clerk Salek Chand prepared CHIK FIR, i.e. Ex.Ka-6. In the same process, he also made entry in the G.D., carbon copy whereof is Ex.Ka-7. Initially, the investigation was entrusted to PW8 SSI Geeta Ram Sharma and later on the investigation was entrusted to PW7 C.O. Sudhakar Singh. Inquest report of deceased Gyanti Devi was prepared by SI Vijay Singh on 18.6.1993, i.e. Ex.Ka-2. Other necessary documents viz. sketch of dead body Ex.Ka- 9 and Police Form No.13 Ex.Ka-10 were prepared and specimen of seal Ex.1 was also prepared and the dead body was sent for conducting the post-mortem. The post- mortem on the dead body was conducted by PW5 Dr. M.S. Kunwar on 19.6.1993 at 11:15 AM and prepared the post- mortem report Ex.Ka-4. During the course of investigation, the I.O. took in his possession the half-burnt pieces of clothes and a half-burnt plastic jerricane and prepared Fard Ex.Ka-3. During investigation, he also inspected the place of occurrence and prepared the site plan, Ex.Ka-8. 3 During the course of investigation, the IO recorded the statements of witnesses and on completing the investigation, he filed the charge sheet, Ex.Ka-5 against the respondents-accused u/s 498-A/304-B and 3/4 Dowry Prohibition Act, 1961 {hereinafter to be referred as the Act}. 5. Learned Chief Judicial Magistrate, Dehradun appears to have committed the case to the court of Sessions on 1.9.1993 after giving necessary copies to the respondents/accused as required under Section 207 Cr.P.C. The case was transferred to First Additional Sessions Judge by the Sessions Judge for disposal according to law. 6. Learned First Additional Sessions Judge, Dehradun framed the charges against the respondents- accused on 23.11.1993 u/s 498-A and 304-B r/w Section 34 IPC. The charges were read over and explained to each of them, who pleaded not guilty and claimed to be tried. 7. The prosecution in order to prove its case got examined PW1 Manik Chand, brother in law (JIJA) of deceased, PW2 Sawali Kumar, complainant and brother of deceased, PW3 Akshay Kumar Tewari, scriber of FIR, PW4 Indra Sen, tenant, PW5 Dr. M.S. Kunwar, who conducted the post-mortem, PW6 Mahantam Prasad, father of deceased, PW7 CO Sudhakar Singh, IO of the case and PW8 SSI Geeta Ram Sharma, also IO of the case. 8. After that the statements of the respondents- accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of the accused- respondents in question from. Each of the accused- respondents denied the allegations made against them and stated that they have been falsely implicated. In oral evidence, they produced DW1 Shiv Bachan and DW2 4 Shamu @ Shabu. In documentary evidence, they produced four documents as Ex.Kha-1 to Ex.Kha-4. 9. After appreciating the entire material available on record and hearing learned counsel for the parties, the learned First Additional Sessions Judge, Dehradun vide judgment and order dated 22.4.1996has acquitted the respondents-accused as above discussed. Against the aforesaid judgment and order, the State has come up in appeal. 10. The State had filed this appeal before High Court of Judicature at Allahabad and the appeal was also admitted there on 28.1.2000. This Court has received this appeal after creation of State of Uttaranchal now Uttarakhand u/s 35(2) of the U.P. Re-organization Act, 2000. 11. Before further discussion, it is pertinent to mention the ante-mortem injuries found by the medical officer P.W.9 Dr. MS Kunwar on the dead body of Gyanti Devi and who also prepared the post-mortem report, Ex.Ka- 4, which reads as under: - “Superficial to deep burn present all over the body. Singeing of hairs and blackening is present. Odor of kerosene oil is coming from hairs and body and clothes. Body has become rigid and in pugilistic posture. Few fluid filled vesication present at processing. Skin is cracked at places. Line of redness present. Skin is also burn at processing. Cause of death was assigned due to shock and asphyxia as a result of ante-mortem burn injuries. 12. To prove the aforesaid post-mortem report, the prosecution has examined P.W.5 Dr. M.S. Kunwar, who has proved the post-mortem report prepared by him, i.e. 5 Ex.Ka-4. He has also stated that the death of deceased could have possible be caused in the intervening night of 17/18.6.1993 in between 12 AM to 1 AM. 13. To further prove its case, the prosecution has examined P.W.1 Manik Chand, brother in law (JIJA) of deceased, whose statement was recorded on 3.2.1994, has stated that Gyanti Devi was his sister in law (SALI) and about 7-8 months ago at about 6 AM, Shiv Charan came and informed that Gyanti Devi has been murdered by setting her at fire by pouring kerosene oil by her husband Om Prakash, father in law Ram Bachhan and mother in law Dulari Devi. After receiving this information, he went to his brother in law Sawali Kumar also to inform him about the incident. On the same day at 8 AM, he along with his brother in law went at the house of Om Prakash where he found Gyanti Devi burnt and dead. When the reason was enquired from Om Prakash and Dulari Devi, they informed that she herself had died by setting herself at fire. They were not satisfied with this explanation and after that Sawali Kumar went to lodge the report and he also accompanied him. He had got this marriage solemnized and in the marriage, his father in law gave dowry according to status. Gyanti Devi was not happy in her in-laws house. After the marriage, he and his wife Manti Devi used to visit the in-laws of Gyanti Devi. The father in law of Gyanti Devi is his real uncle (TAU) in relation. The deceased used to tell him and his wife that his in-laws used to beat her and demand Rs.50,000/- in dowry and also do not provide her food, but he used to sympathize her. He also got wrote a letter from Sawali Kumar to his father in law Mahantam Prasad. Then Mahantam Prasad came and took his daughter along with him at his village. Deceased Gyanti Devi stated at her house for 1½ year but neither Om Prakash nor anyone from his house came to take the 6 deceased nor any letter was written. Akshay Kumar Tiwari is known to him who had advised him to take the girl (Gyanti Devi) at her in laws and also stated that everything would be settled. Then his father in law along with his daughter Gyanti Devi reached at her in-laws house on 12.6.1993 and till 14.6.1993, his father in law resided at his house. On the same day i.e. on 14.6.1993 after leaving of his father in law, Sawali Kumar came to him for some work and informed him that he had gone to meet his sister Gyanti Devi where he saw injuries on her forehead. On the same day evening, he along with his brother in law Sawali Kumar went at the in-laws house of Gyanti Devi where she informed them while weeping that her in-laws were demanding Rs.50,000/- in lieu of dowry and for this reason, she was beaten by them and she further requested him and his wife to take her from there otherwise she would be murdered by her in-laws. When the matter was enquired by him from deceased’s father in law, then he told to take her only if the money would be paid. The tenants residing there, namely, Indrasan, Shiv Bachan, Shamu and others had also told them that Gyanti Devi was subjected to physical cruelty for dowry and they further told him to take her from there otherwise she would be killed. He further stated that the deceased was married with Om Prakash on 10.3.1991. This witness was cross-examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is reliable and believable. 14. PW2 Sawali Kumar has stated that the marriage of his sister was solemnized with Om Prakash on 10.3.1991 and in the marriage, clothes, utensils, ornaments and Rs.10,000/- in cash were given to the accused. After marriage, his sister went at her in-laws house. Whenever 7 he used to meet his sister’s in-laws house, she used to tell him that the accused persons were demanding Rs.50,000/- from her and for this reason she was subjected to cruelty. His sister also used to tell him to take her along with him. He wrote a letter to his father on which his father had come and took his sister. His sister stayed at her parental house for 1½ year but no one from her in laws came to take her. Akshay Kumar Tewari and some villagers advised his father to take Gyanti Devi at her in laws house on which on 12.6.1993 she was taken at her in laws house. Thereafter when he went to meet his sister he saw an injury on the forehead of her sister and his sister requested him while weeping to take her from there, otherwise she would be killed by the accused. His sister further informed him that her in laws were demanding Rs.50,000/- in dowry failing which she would be murdered. His sister further told him that her husband Om Prakash, on the instigation of his mother, beaten him with a bucket by which she received injury on her forehead. The tenants, Shiv Bachan, Dhuv, Indrasan, residing in the house of accused Ram Bachhan also told him to take his sister from there otherwise she would be murdered by the accused. On the same day, he went to meet his brother in law (JIJA) Manik Chand and then he along with Manik Chand reached at the inlaws house of Gyanti Devi. He requested the respondent-accused Ram Bachhan to send his sister on which Ram Bachhan directed him to give Rs.50,000/- and only then his sister would be sent. His sister was illiterate. On 18.6.93, his brother in law Manik Chand came at Haridwar and informed that Gyanti Devi has been murdered by her husband, mother in law and father in law by setting her at fire. He asked about the reason from Om Prakash and his father and mother about his sister’s burning, then they showed their unawareness about that incident. After that he got the report scribed from Akshay Tewari and gave at 8 P.S. Rishikesh, i.e. Ex.Ka-1. Since he was nervous on that day, hence he wrongly wrote the date of marriage in the FIR. This witness was also cross-examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is also reliable and believable. 15. PW3 Akshay Kumar Tewari who stated that in the night of 17/18.6.1993, he came to know at his house that Gyanti Devi has been murdered by setting her at fire by pouring kerosene oil by the accused/respondents Om Prakash, Ram Bachhan and Dulari Devi (now died). At this he went on the spot and saw that Sawali Kumar, brother of deceased was standing there and Gyanti Devi was lying dead being burnt. On the dictation of Sawali Kumar, he wrote the report Ex.Ka-1. After marriage, Gyanti Devi came at her inlaws house at Chandrabhaga, Rishikesh and he used to go to meet Gyanti Devi because his brother had taken a shop on rent in the house of Ram Bachhan. Gyanti Devi used to tell him that her in laws used to harass her thereby demanding dowry of Rs.50,000/- and she also told him to inform to her father. He also wrote postcards to the father of deceased. When the father of Gyanti Devi came at the house of Ram Bachhan, he also arrived there. He also stated that before him also, respondents-accused Ram Bachhan and Om Prakash demanded Rs.50,000/- from the father of deceased. Father of deceased wept and said that he, being a poor person, is incapable to pay that amount but the respondent-accused did not agree. Then the father of Gyanti Devi took her at Bihar where she stayed at her parental house for 1½ year. In May, 1993 he went at his village at Bihar where he advised the father of Gyanti Devi to take her at her in-laws house on which on 12.6.1993, Gyanti Devi was taken at her in laws house. On 14.6.1993 in the evening, he reached at the house of Ram Bachhan 9 and found Sawali Kumar and Manak Chandra standing there. When he asked the reason of coming of Sawali Kumar, then he told that the respondent-accused Om Prakash had beaten Gyanti Devi on the instigation of his father Ram Bachhan. He also stated that on 14.6.1993, respondent-accused Om Prakash committed Marpit with Gyanti Devi with a bucket as a result of which she sustained injuries on her head. He further stated that Gyanti Devi was murdered in the night of 17.6.1993. He proved the inquest report Ex.Ka-2 prepared by the I.O. on 18.6.1993. This witness was also cross-examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is also reliable and believable. 16. PW4 Indrasan who stated that the respondents- accused as well as deceased Gyanti Devi were known to him. He also stated that he saw the respondent-accused Om Prakash while committing Marpit with his wife Gyanti Devi. When he enquired about the reason from the respondent-accused Om Prakash for beating his wife, then he warned him that it would not be good for him in case he would speak about his personal family matter. He further stated that the respondent-accused Om Prakash told before him that since the demand of dowry was not made good, hence he is beating his wife. On 17.6.1993 at about 1 AM, he saw that the respondents- accused Ram Bachhan and his son Om Prakash were dragging Gyanti Devi in the verandah by pulling her leg. At that time, Gyanti Devi was lying dead. When he enquired from Ram Bachan about the burning of deceased, he shown his unawareness about the same. Some persons of locality were also collected over there. On 18.6.1993 the I.O. had taken the burnt clothes of deceased and the half-burnt jericane into 10 his possession and prepared Fard, i.e. Ex.Ka-3. This witness was cross-examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is reliable and believable. 17. PW6 Mahatam Prasad, father of deceased, whose statement was recorded in the court on 7.3.1995, has stated that deceased Gyanti Devi was his daughter, who was married with the accused/respondent Om Prakash four years’ ago. His daughter stayed with her husband Om Prakash at Rishikesh for about eight months. He received information that the accused/respondents Om Prakash, Ram Bachhan and mother of Om Prakash, were demanding Rs.50,000/- as dowry from his daughter and they also used to commit cruelty upon her. He took his daughter along with him at his house where his daughter informed him that her husband, father in law and mother in law were demanding Rs.50,000/- and they also used to commit physical cruelty upon her. His daughter stayed at his house for 1½ year. On the advise of his villagers, he left his daughter back at the house of Om Prakash. He requested the husband and father in law and mother in law of his daughter that he is a poor person and is incapable to pay that huge amount. After leaving his daughter, he went at the house of her another daughter and later on he went to Bihar. Thereafter, he came to know that the respondents/ accused had murdered his daughter by pouring kerosene oil and setting her at fire. On hearing this information, he initially went to Rishikesh and then he informed to the C.O. at Dehradun. This witness was also cross-examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is also reliable and believable. 11 18. PW7 S.O. Sudhakar Singh, who is the I.O. of the case, has stated that before him SSI Gita Ram Sharma was carrying out the investigation. During the course of investigation, he recorded the statements of the witnesses and on completing the investigation, he filed the charge sheet against the accused/respondents, i.e. Ex.Ka-5. 19. PW8 SI Gita Ram Sharma who stated that he was entrusted with the investigation of the case. On the basis of report given by Sawali Kumar, this case was registered and CHIK FIR was prepared by C/C Salek Chand i.e. Ex.Ka-6. In the same process entry was also made in the GD by the same C/C, carbon copy thereof is Ex.Ka-7. He inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-8. Inquest report of this case was prepared by SI Vijay Singh, i.e. Ex.Ka-2. Along with the inquest report, sketch of dead body Ex.ka-9 and Police Form No.13 Ex.Ka-10, respectively were prepared. Specimen of seal of sealing the dead body of Gyanti Devi was also prepared, i.e. Ex.1. 20. After that the statements of the respondents- accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of the accused- respondents in question from. Each of the accused- respondents denied the allegations made against them and stated that they have been falsely implicated. In oral evidence, they produced DW1 Shiv Bachan and DW2 Shamu @ Shabu. In documentary evidence, they produced four documents as Ex.Kha-1 to Ex.Kha-4. 21. DW1 Shiv Bachan has stated that he is a tenant in the house of Ram Bachan and he runs a grocery shop. He has denied any demand of dowry ever being made by the respondents/accused from the deceased Gyanti Devi for Rs.50,000/-. 12 22. DW2 Shyamu @ Shambhu, who is also a tenant in the house of Ram Bachan. He also denied about the demand of Rs.50,000/- in dowry ever been made by the respondents/accused from Gyanti Devi. He also denied of commission of any Marpit with the deceased by the respondents/accused due to non-fulfillment of dowry. 23. Sri Amit Bhatt, learned Addl. GA for the State has submitted that on the basis of the evidence as discussed above, the prosecution has proved its case against the respondents-accused under Section 304-B r/w Section 34 IPC and also u/s 498-A IPC. I find force in the argument advanced by learned Additional Government Advocate. Before further discussion, it is pertinent to mention the definition of Section 304-B of IPC, which reads as under: - [304B. Dowry Death – (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death. Explanation – For the purpose of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extended to imprisonment for life.] Section 2 of the Dowry Prohibition Act, 1961 is also relevant to mention here which provides definition of Dowry, which is reproduced as under: - 2. Definition of ‘dowry’- In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly. 13 (a) by one party to a marriage to the other party to the marriage; or (b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person. At or before [or any time after the marriage] [in connection with the marriage of the said parties, but does not include] dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies. Explanation II- The expression “valuable security” has the same meaning as in section 30 of the Indian Penal Code (45 of 1860). Section 113-B of Indian Evidence Act, 1872 is also relevant to mention here which also reads as under: - [113-B. Presumption as to dowry death- 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. Explanation – For the purposes of this section “dowry death”, shall have the same meaning as in section 304- B of the Indian Penal Code (45 of 1860).] ‘Cruelty’ has been defined in Section 498-A of IPC, which is also reproduced as under: - “498-A. Husband or relative of husband of a woman subjecting her to cruelty – Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.” Explanation-For the purpose of this section, “cruelty” means- (a) any willful conduct which is of such a