IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Jail Appeal No. 1855 of 2001 1. Diwan Singh S/o Kalyan Singh 2. Hukum Singh S/o Kalyan Singh 3. Smt. Haru Devi W/o Kalyan Singh All R/o Chakarpur, P.S. Khatima, District Udham Singh Nagar. ...…………. Appellants Versus The State ...…………. Respondent Mr. Sashi Kant Shandilya, Advocate for the appellants. Mr. H.C. Pujari, Addl. Govt. Advocate for the respondent-State. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble B. S. Verma, J. Hon. Prafulla C. Pant, J. (Oral) This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973, is directed against the judgment and order dated 23.10.2001, passed by learned Sessions Judge, Udham Singh Nagar, in Sessions trial No. 99 of 2000, whereby the accused / appellants, namely Diwan Singh, Hukum Singh and Smt. Haru Devi are convicted under Section 304B, 201 and 504 of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.). Each one of the convicts is sentenced to imprisonment for life under Section 304B and rigorous imprisonment for a period of two years under Section 201 of I.P.C. and rigorous 2 imprisonment for a period of six months under Section 504 of I.P.C. 2) Heard learned counsel for the parties and perused the lower court record. 3) Prosecution story, in brief, is that accused / appellant Diwan Singh got married to Maya Devi (deceased) about a year before her death. After her marriage with Diwan Singh she started living with her husband and in-laws in Chakarpur, District Udham Singh Nagar. After about ten days of her marriage when she came back to her parental house, Maya Devi told her father P.W. 2 Amar Singh and other relatives that she was being subjected to cruelty by her husband, mother-in-law and brother-in-law for non- fulfillment of demand of dowry. The parents of the deceased consoled her, advised her and persuaded her to go back to her in-laws house. About three months thereafter, accused / appellant Haru Devi, mother-in-law of the deceased came to the parental house of the deceased and demanded Rs. 75,000/- cash as dowry, which the father of the deceased could not fulfill. On 16.01.2000, P.W. 1 Gopal Singh, brother-in-law (JIJA), resident of Garhi Kot, heard in Chakarpur that his sister-in-law is being ill-treated by her in-laws. On this, he went to see the welfare of his sister-in-law, but he was not allowed to meet the deceased. On this, Gopal Singh (P.W. 1) went to village Kanda Sukhidang, where the parents of the deceased used to live, and told father of the deceased showing concern about the welfare and whereabouts of the deceased. Thereafter, Amar Singh (P.W. 2), father of the deceased, along with 3 P.W. 1 Gopal Singh (P.W. 1) went to Chakarpur on next day i.e. 17.01.2000, to enquire about the welfare of the deceased. Accused / appellants told them that Maya Devi (deceased) is not in the house. Thereafter, Amar Singh (P.W. 2), Gopal Singh (P.W. 1) and other relatives started search of Maya Devi. On 20th of January 2000, Amar Singh (P.W. 1) lodged a first information report (Ext. A –2) with police station Khatima, alleging that Maya Devi was subjected to cruelty by her husband (Diwan Singh), mother-in-law (Haru Devi) and brother-in-law (Hukum Singh). It is further alleged in said report that they kept on searching for several days for Maya Devi, but her whereabouts were not disclosed by her husband and in- laws, and as such, the informant (Amar Singh) suspected foul play on their part. On the basis of said report, the police prepared check report (Ext. A –3) and registered Crime No. 25 of 2000 against the three accused / appellants, relating to offences punishable under Section 498-A, 323, 504 and 364 of I.P.C., and also one punishable under Section 3/4 of the Dowry Prohibition Act, 1961. Investigation was initially taken up by Sub Inspector Lakhan Singh. After dead body of Maya Devi was recovered from a canal on 27.01.2000, the case was converted into one punishable under Section 304B of I.P.C., and investigation was transferred to Circle Officer (Dy. Superintendent of Police), Arvind Kumar Mourya. An inquest report (Ext. A –9) was prepared on 27.01.2000 in the presence of Gopal Singh (P.W. 1) and others. The police also got prepared sketch of the dead body (Ext. A –11); police form No. 13 (Ext. A –10) and letter (Ext. A –9) to the Chief Medical Officer, Pilibhit (nearest adjoining district 4 headquarter), requesting for postmortem examination. The dead body was sent for postmortem examination. Dr. S.P. Singh conducted postmortem examination on 28.01.2000, at 04:00 P.M. He found a contusion over front and sides of the neck of the deceased in an area 10 cm X 4 cm and it was also found that on deep dissection on neck it was found underlying muscles of neck ecchymosed, lyrenx and trachea congested, right corner of hyoid bone fractured. After making internal examination he opined that deceased has died of asphyxia due to ante mortem injury on the neck. After interrogating the witnesses and completing the investigation, the Investigation Officer (Arvind Kumar Maurya) submitted charge sheet (Ext. A –5) against all the three accused namely, Diwan Singh, Hukum Singh and Haru Devi for their trial in respect of offences punishable under Section 304B, 201 and 504 of I.P.C. 4) The Chief Judicial Magistrate, on receipt of charge sheet, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., appears to have committed the case to the court of Sessions, for trial. Learned Sessions Judge, after hearing the parties on 14.09.2000, framed charge of offences punishable under Section 304B, 201 and 504 of I.P.C. against all the three accused / appellants, namely Diwan Singh, Hukum Singh and Haru Devi. All the accused / appellants pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Gopal Singh (brother-in-law of the deceased); P.W. 2 Amar Singh (complainant and father of the deceased); P.W. 3 Gopal Chandra, and P.W. 4 Head 5 Constable Harish Chand (who prepared the check report of the first information report). Formal proof of the rest of the documents was dispensed with by the counsel for defence and the genuineness was admitted, as such, no further oral testimony was recorded. The oral and documentary evidence was put to the accused / appellants under Section 313 of Cr.P.C., in reply to which they alleged the same to be false. However, no evidence in defence was adduced. Accused Hukum Singh has admitted that deceased was his sister-in-law (BHABHI). After hearing the parties, the trial court found all the three accused namely, Diwan Singh, Hukum Singh and Haru Devi guilty of the charge of offences punishable under Section 304B, 201 and 504 of I.P.C. After hearing on sentence, each one of the convicts was sentenced to imprisonment for life under Section 304B, rigorous imprisonment for a period of two years under Section 201 of I.P.C. and rigorous imprisonment for a period of six months under Section 504 of I.P.C. Aggrieved by said judgment and order dated 23.10.2001, passed by the Sessions Judge, Udham Singh Nagar, in Sessions Trials No. 99 of 2000, this appeal is preferred by the convicts. 5) Before further discussion, we think it just and proper to mention here the condition of the dead body of Maya Devi and the ante mortem injuries recorded by Dr. S.P. Singh, who conducted the autopsy on 28.01.2000, at 04:00 P.M., and prepared the autopsy report (Ext. A –17): Whole body swollen up, greenish discoloration present all over abdomen, skin peeled off at places, 6 tongue protruded, lips swollen and averted. Abdomen distended. Head and neck congested, eyes closed, face ecchymosed, bloody foam escapes from mouth and nostrils. Ante mortem injury: Contusion present over front and sides of neck in an area of 10 cm X 4 cm, on deep dissection of neck underlying muscles of the neck ecchymosed, larynx and trachea congested, right corner of hyoid bone fractured, trachea fractured. The Medical Officer on internal examination found membranes and brain congested, lungs congested. He opined that the deceased (Maya Devi) had died of asphyxia due to ante mortem injury. The autopsy report on the record clearly suggests that deceased Maya Devi, aged 20 years, female, had died homicidal death. Now, this Court has to see whether, unnatural death of Maya Devi has taken place due to the cruelty and harassment committed by accused / appellants against her and whether, the accused / appellants threw the dead body in canal to cause disappearance of the evidence to screen the offence, and whether, they intentionally insulted the complainant and brother-in-law of the deceased? 6) P.W. 2 Amar Singh, complainant and father of the deceased, has stated on oath before the trial court that Maya Devi (deceased) got married to Diwan Singh (accused / appellant). It is further stated by him that accused / appellant Hukum Singh is younger brother of accused / 7 appellant Diwan Singh, and accused / appellant Haru Devi is mother of the accused / appellant Diwan Singh. The witness further states that after ten days of marriage when Maya Devi came to him she was weeping and she told that she was being harassed for non-fulfillment of demand of cash dowry. The witness further told that the deceased was consoled and persuaded to go back to her husband’s house. P.W. 2 Amar Singh further told the court that after three months of the marriage accused / appellant Haru Devi (mother-in-law of the deceased) came to him and demanded Rs. 75,000/- cash, as dowry. The witness states that he could not fulfill the demand of dowry. This witness has further stated that his elder son-in-law Gopal Singh (P.W. 1) was also present in the house at that time. The witness further states that on 16.01.2000, Gopal Singh P.W. 1, came to him and told him that on that day when he visited in-laws’ house of Maya Devi to know the welfare of the deceased, abuses were hurled at him and he was not allowed to meet Maya Devi. On the next day (17.01.2000) according to this witness, he (Amar Singh) along with Gopal Singh again went to the husband’s house of Maya Devi and enquired about her, but the accused / appellants told them that she (deceased) is not there. P.W. 2 Amar Singh further states that thereafter search started. On 20th of January 2000, he dictated report (Ext. A –2) got typed, and gave it at the police station Khatima. 7) P.W. 1 Gopal Singh, brother-in-law (JIJA) of the deceased, has fully corroborated the prosecution story, as narrated by Amar Singh (P.W. 2), father of the deceased. For the sake of brevity the same is not repeated here. This 8 witness has further stated that when the dead body was searched and found on 27.01.2000, in a canal stuck at net, the police took out the dead body and inquest report (Ext. A –1) was prepared in his presence. The witness has corroborated the fact that Rs. 75,000/- were demanded by the accused / appellants Haru Devi. None of these witnesses in their cross-examination has been suggested if the deceased was not married to Diwan Singh, nor any suggestion is given if the deceased is still alive. P.W. 3 Gopal Chandra has also corroborated the prosecution story by stating that accused / appellant Haru Devi did come to the house of Amar singh and demanded Rs. 75,000/-. 8) Having re-assessed the evidence on record, this Court is of the view that prosecution has successfully proved charge of offence punishable under Section 304B, 201 and 504 of I.P.C. against accused / appellants Diwan Singh and Haru Devi, beyond reasonable doubt. It is established on the record that Maya Devi, wife of accused / appellant Diwan Singh and daughter-in-law of accused / appellant Haru Devi, died otherwise then under normal circumstances, within seven years of her marriage. It is also proved on the record that she was subjected to cruelty by her husband and mother-in-law before her unnatural death. It is also proved on the record that accused / appellants did not disclose whereabouts of Maya Devi after causing the disappearance of her body by throwing it in canal from where it was recovered on 27.01.2000. It has come on the record that the deceased had died hardly one year after her marriage. It is also proved by P.W. 1 Gopal Singh and P.W. 2 Amar singh that they were insulted and 9 abuses were hurled at them by the accused / appellants Diwan Singh and Haru Devi, when they went to their house to enquire about Maya Devi. 9) As far as accused / appellant Hukum Singh is concerned, he is brother-in-law (DEVER) of Maya Devi. Though his name figures in the first information report and also in the statement of P.W. 1 Gopal Singh, but from the statement of P.W. 2 Amar Singh to whom demand of dowry was made of Rs. 75,000/- it does not appear if accused / appellant Hukum Singh was also present, when the demand was made. His name has also not figured in the statement of P.W. 3 Gopal Chandra, except to the extent that Hukum Singh was younger brother of Diwan Singh. As such, possibility of his being implicated only on suspicion cannot be ruled out. Apart from this, P.W. 1 Gopal Singh and P.W. 2 Amar Singh have not stated what was specifically done by accused / appellant Hukum Singh to show his role in commission of crime. It is the duty of the Court to separate chaff from the grain. Otherwise also, from the statement of accused / appellant Hukum Singh, recorded under Section 313 of Cr.P.C., it appears that he was 18 years old and was a student. Considering the facts and circumstances and evidence on record, we are of the view that the charge of offences punishable under Section 304B of I.P.C., 201 of I.P.C. and 504 of I.P.C. is not proved against the accused / appellant Hukum Singh, beyond reasonable doubt. 10) For the reasons as discussed above, appeal of accused / appellant Hukum Singh deserves to be allowed, but appeal 10 of accused / appellants Diwan Singh and Haru Devi is liable to be dismissed. Accordingly, the appeal of appellant Hukum Singh is allowed. Conviction and sentence recorded by the trial court against him is set aside. He is acquitted of the charge of offences punishable under Section 304B, 201 and 504 of I.P.C. Appellant Hukum Singh is on bail. He need not to surrender. Appeal of accused / appellants Diwan Singh (husband of the deceased) and Haru Devi (mother-in-law of the deceased) is hereby dismissed. Conviction and sentence recorded by the trial court against them in respect of charge of offences punishable under Section 304B, 201 and 504 of I.P.C., are affirmed. Accused / appellant Haru Devi is on bail. Her bail is cancelled. She shall be made to serve out the sentence awarded by the trial court against her. The trial court record be sent back. A copy of this judgment be also sent to the Superintendent of jail where accused / appellant Diwan Singh is serving out the sentence. (B.S. Verma, J.) (Prafulla C. Pant, J.) Dt. June 25, 2009. H. Negi 11