IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 28 of 2001 1. Smt. Champa Devi W/o Late Shri Ram Sahai 2. Sanjay Kumar S/o Late Shri Ram Sahai Both R/o Kosi Road near Hanuman Mandir P.O. Ramnagar, District Nainital …..…Appellants Versus State of Uttaranchal (Uttarakhand) ……….Respondent Shri Lokendra Dobhal, Advocate, present for the appellants. Shri M.A. Khan, Brief Holder, present for the State. Hon'ble Prafulla C. Pant, J. Hon'ble Servesh Kumar Gupta, 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 20.02.2001, passed by IInd Additional Sessions Judge, Nainital, in Sessions Trial no. 320 of 1995, whereby said court has convicted accused/appellants Smt. Champa Devi and Sanjay Kumar under section 498A, 2 and 304B of Indian Penal Code, 1860 (for short IPC). Accused/appellant Champa Devi has been sentenced to rigorous imprisonment for a period of two years , and directed to pay fine of `2,000/- under section 498A IPC, and rigorous imprisonment for a period of seven years under section 304B IPC. Accused/appellant Sanjay Kumar has been sentenced to rigorous imprisonment for a period of three years, and directed to pay fine of `2,000/- under section 498A IPC, and imprisonment for life under section 304B IPC , by the trial court. 2. Heard learned counsel for the parties, and perused the lower court record. 3. Prosecution story, in brief, is that Santosh Kumari (deceased) got married to accused/appellant no. 2 Sanjay Kumar about 18 months before her death. Accused/appellant no. 1 Smt. Champa Devi, is mother in law of the deceased. It is alleged by the prosecution that after the marriage deceased was subjected to harassment for non-fulfillment of demand of dowry by accused/appellants Sanjay Kumar (husband) and Champa Devi (mother-in-law). On 25.11.1994, Santosh Kumari (deceased) suffered 90% burn injuries, and taken to the hospital at Ramnagar for her treatment from where she was referred to Delhi for 3 further treatment. However, she died on her way to Delhi at Kashipur. It is alleged by the prosecution that before the aforesaid date of incident also the accused/ appellant Sanjay Kumar attempted to kill Santosh Kumari (deceased) by pouring kerosene, and by inflicting knife blow. On behalf of the in-laws of the deceased, a report was given on 26.11.1994, about the accidental death of Santoshi Kumari on which police came to the spot, took dead body of Santosh in their possession, and prepared inquest report (Ex. A2) in the presence of the in-laws, and relatives of maternal side of the deceased. Autopsy was conducted on the dead body by P.W.4 Dr. Surendra Singh on the very day (26.11.1994) at 3:30 p.m., and he recorded 98% ante-mortem burn injury, in the autopsy report. The cause of death in the opinion of medical officer was shock due to ante-mortem burn injury. It appears that on 28.11.1994, P.W.1 Smt. Ramwati (mother of the deceased) sent a written report to Senior Superintendent of Police, Nainital, and in compliance of endorsement dated 03.12.1994, under instructions of said officer, crime no. 364 of 1994, was registered against accused/appellants Sanjay Kumar and Champa Devi, and one Raja Ram (since acquitted) relating to offence punishable under section 304B IPC, at Police Station Ramnagar, District Nainital. The investigation was conducted by P.W. 5 Nageshwar 4 Singh, Circle Officer, who interrogated the witnesses, inspected the spot, and submitted charge sheet (Ex. A5) against the two accused namely Sanjay Kumar and Champa Devi for their trial in respect of offence punishable under section 304B IPC. A separate charge sheet (Ex. A6) was filed against accused Raja Ram in respect of offences punishable under section 498A and 304B IPC. 4. Both the cases were committed to the court of Sessions by the trial court after giving necessary copies to the accused. Sessions Trial no. 320 of 1995 arose out of the charge sheet (Ex. A5) filed against accused/appellant Sanjay Kumar and Champa Devi, and Sessions Trial no. 458 of 1996, arose from the charge sheet (Ex. A6) filed against Raja Ram (since acquitted). 5. From the record, it appears that after hearing the parties learned Sessions Judge framed charge of offences punishable under section 498A, and 304B IPC on 22.02.1996, against accused/appellants Sanjay Kumar and Champa Devi. As against third accused Raja Ram, separate charge was framed on 17.12.1999, in respect of the offences punishable under section 304B and 498A IPC. All the accused pleaded not guilty, and claimed to be tried. On this, prosecution 5 got examined P.W.1 Smt. Ramwati (complainant and mother of the deceased), P.W.2 Ram Avtar Deval (a neighbour from the maternal side of the deceased), P.W.3 Sanjay Deval (brother of the deceased), P.W.4 Dr. Surendra Singh (who conducted post mortem examination on the dead body of the deceased), and P.W.5 Nageshwar Singh, Circle Officer (who investigated the crime). Oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which the marriage between Sanjay Kumar and Santosh Kumari (deceased), was admitted. Her unnatural death was also not disputed but rest of the evidence was denied as false. However, no evidence in defence was adduced. The trial court, after hearing the parties, found that the prosecution could not prove case against accused Raja Ram, but the charge of offences punishable under section 498A and 304B IPC, was found proved against accused/appellants Champa Devi and Sanjay Kumar who were convicted. After hearing on sentence, the trial court sentenced accused/appellant Champa Devi rigorous imprisonment for a period of two years , and directed to pay fine of `2,000/- under section 498A IPC, and rigorous imprisonment for a period of seven years under section 304B IPC. Accused/appellant Sanjay Kumar was sentenced to rigorous imprisonment for a period of three years, 6 and directed to pay fine of `2,000/- under section 498A IPC, and imprisonment for life under section 304B IPC. Aggrieved by said judgment and order dated 20.02.2001, passed by IInd Additional Sessions Judge, Nainital, in Sessions Trial No. 320 of 1995, this appeal is filed by the convicts. 6. Before further discussion, we think it just and proper to mention the ante-mortem injury recorded by P.W.4 Dr. Surendra Singh who conducted post- mortem examination on 26.11.1994 at 3:30 p.m., and prepared autopsy report (Ex. A3). The ante-mortem injuries as mentioned in the autopsy report are being reproduced below:- “Superficial to deep burn present all over the body involving head, neck, face, chest, abdomen both upper and lower limbs . Burn injury about 98%.” The medical officer opined, after post- mortem examination, as mentioned in the autopsy report that deceased had died of shock due to ante- mortem injury. From the evidence of P.W.4 Dr. Surendra Singh read with autopsy report (Ex. A3) it is proved on the record that Santosh Kumari died unnatural death. Now we have to examine whether it is proved on the record or not that accused/appellants Sanjay Kumar (husband), and Champa Devi (mother- 7 in-law) subjected the deceased to harassment for non-fulfillment of demand of dowry. In other words, we have to see whether there was any demand of dowry or not, and if so, whether the deceased was harassed for non-fulfillment of demand of dowry before her unnatural death. Once that is shown, under section 113B of Indian Evidence Act, 1872, this Court has to presume that the accused have committed dowry death. 7. From the copy of extract of General Diary relating to entry at serial no. 8 recorded at 6:20 a.m., on 26.11.1994, (Ex. A13) it is clear that before the first information report was lodged, factum relating to unnatural death was given at the Police Station from the side of the in-laws of the deceased on the basis of which the police went to the spot took dead body in their possession, and prepared inquest report (Ex. A2) on 26.11.1994, before it was sent for post-mortem examination alongwith other necessary papers police form no. 13 (Ex. A8), sketch of the dead body (Ex. A9), sample seal (Ex. A10) etc.. Another document (Ex. A11) which is also copy of extract of General Diary relating to report no. 37 prepared at 8:25 p.m., on 25.11.1994, at Police Station Ramnagar, shows that as per the report received from the medical officer of Joint Hospital, Ramnagar, Smt. Santosh Kumari 8 (deceased) was brought to said hospital, and referred for further medical treatment. From the inquest report (Ex. A2) it is clear that inquest report was prepared on 26.11.1994, in the presence of the relatives of the deceased from both sides (From the side of the in- laws, and from the maternal side of the deceased). Said fact indicates that from the side of the in-laws the information was also given about unnatural death of the deceased to the brother and mother of the deceased. 8. To show that demand of dowry was made, and deceased was subjected to harassment three witnesses have been examined on behalf of the prosecution. P.W.1 Smt. Ramwati (mother of the deceased) states that two months after the marriage of the deceased with accused Sanjay Kumar, when she came back to her, she disclosed about the demand of dowry of rupees one lac by her in-laws. It is also alleged by her that before the incident earlier also husband, and in-laws of the deceased attempted to kill her by pouring kerosene on her body. However, no FIR appears to have been lodged regarding the allegation that earlier any such attempt was made or knife blow was inflicted as alleged by this witness. P.W.1 Ramwati has admitted in her cross- examination that her son-in-law (accused Sanjay 9 Kumar) was mentally weak. The defence has put a suggestion to her that since accused Sanjay Kumar was mentally weak, due to that reason deceased committed suicide. Still, we would have believed the statement of P.W.1 Ramwati as her statement gets corroboration from P.W.2 Ram Avtar Deval (her neighbour), and P.W.3 Sanjay Deval (her son), but there is an important fact on the record which creates further reasonable doubt in the testimony of the aforesaid three witnesses relating to demand of dowry, and harassment for non-fulfillment of such demand. Copy of the affidavit dated 14.02.1995, filed by Ramwati (P.W.1) given before the Additional Chief Judicial Magistrate, Kashipur, is Ex. B1 on the record. This document was put to the witness (P.W.1) who makes following statement in this connection in her cross-examination:- “----- eSaus fnukad 14-02-1995] dks dk'khiqj] uSuhrky] esa ,d gyQukek is'k fd;k FkkA ;g 'kiFk i= i= u0 4d&3 i=koyh esa gSA bl ij esjk fu'kkuh vaxwBk yxk gSA f'kuk[r djrh gw¡Abl gyQukesa esa eSaus dqN Hkh fNik;k ugha gSA lc lgh ckr fy[kh gSA bl ij Ex.[k1 Mkyk x;k gSA--------** Para 4 of aforesaid affidavit (Ex. B1) reads as under:- ^^ 4& ;g fd lat; dh Jherh pEik nsoh Hkh csdlwj gSa mUgksaus esjh iq=h ls dHkh ngst dh ekax ugha dh vkSj u dHkh esjh iq=h dks tkucw>dj ekjus dk iz;kl fd;k vkSj u gh pEik 10 nsoh u esjh iq=h dks tykdj ekjk gS**A Had witness denied the contents of the affidavit filed by her before Additional Chief Judicial Magistrate or had she stated the said affidavit was not read over to her, we would have preferred to rely on her testimony given before the trial court on her statement in the cross-examination (quoted above), in our opinion creates a reasonable doubt as to the truthfulness what she has stated in her examination in chief. 9. P.W.3 Sanjay Deval is brother of the deceased who has also supported the prosecution story like his mother P.W.1 Ramwati. But in the cross-examination he states as under:- ^^-----njksxk th us esjs c;ku esa ;g ckr xyr fy[kh gS fd ^tc esjh cgu gekjs ?kj vkbZ Fkh rc mlus esjs lkeus esjh eka ls ;g ckr dgh fd mldk vkneh] lkl o mldk nknk jktk jke ngst esa ,d yk[k :i; vius ek;ds ls ykus dks dgrs FksA njksxk th dks eSaus ;g Hkh c;ku ugha fn;k Fkk fd *esjh cgu us eq>s crk;k fd lat; dk 3 yk[k :i;k mlds nknk jktk jke ij gSA jktk jke Hkh dgrk gS fd ,d yk[k :i;k vius ek;ds ls ykdj eq>s ns rc esjk iksrk rq>s vius ?kj esa j[ksxkA------** This part of his statement in cross-examination creates doubt as to truthfulness of his statement given in examination in chief. 11 10. Having reappreciated the entire evidence on record, in the above circumstances, we are of the view that it cannot be said that prosecution has successfully proved charge of offences punishable under section 498A or one punishable under section 304B IPC, either against accused/appellant Champa Devi or against accused/appellant Sanjay Kumar. Therefore, the appeal filed by the convicts deserves to be allowed. Accordingly, the appeal is allowed. Impugned Judgment and order dated 20.02.2001, passed by IInd Additional Sessions Judge, Nainital, in Sessions Trial No. 320 of 1995, is hereby set aside. The accused/appellants Sanjay Kumar and Champa Devi are acquitted of the charge of offences punishable under section 498A and 304B IPC, giving them benefit of reasonable doubt. They are on bail. They need not to surrender. Lower court record be sent back. (Servesh Kumar Gupta, J.) (Prafulla C. Pant, J.) 25.04.2011 Parul