Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 401 of 2001 (Old No. 2072/1997) Sri Krishna …Appellant Versus State …Respondent Sri Lokendra Dobhal, Advocate for the appellant Sri S.S. Adhikari, A.G.A. for the respondent Hon’ble B.C. Kandpal, J. Hon’ble Nirmal Yadav, J. Delivered by Hon’ble B.C. Kandpal, J. This Criminal Appeal preferred under Section 374 read with Section 401 Cr.P.C. is directed against the judgment and order dated 21.11.1997 passed by Sessions Judge, New Tehri, Tehri Garhwal, in Sessions Trial No. 32/1991, State versus Srikrishna, whereby appellant has been convicted under Sections 498A, 304B and 302 I.P.C. and has been sentenced to undergo two years rigorous imprisonment under Section 498A I.P.C., life imprisonment under Section 304B I.P.C., and life imprisonment under Section 302 I.P.C. All the sentences have been directed to be run concurrently. 2- Prosecution story in brief is that F.I.R. (Ext.Ka.1) was lodged against the accused Sri Krishna with the Police Station Tehri by Sri Govind Prasad complainant (PW-1) on 20.4.1991 at 4.20 p.m. with the allegations that the marriage of his sister was performed with the accused in the year 1984. After the marriage accused continued his 2 demand of dowry with him. Accused has harassed his sister in several ways due to this reason. Complainant and his family members were not in a position to fulfill the demand of dowry of the accused. Sufficient dowry was given in the marriage by the complainant according to his capacity. The accused used to beat his sister by saying that she was uneducated and black. Accused has also tried to kill his sister at the time when they were at Chandausi. On 19.4.1991, complainant was informed regarding the death of his sister. When the complainant along with his father, mother and wife arrived at Tehri, they came to know that accused Sri Krishna burnt his sister to death and his niece aged about one year. The complainant lodged the F.I.R. and on the basis of the F.I.R., chick report (Ext.Ka.14) was prepared by Head Muharrir Surendra Pal (PW-8) and case was registered in the General Diary vide Ext.Ka.15. The investigation of the case was entrusted to Dy. S.P. Sri Dinesh Chand (PW-9). The accused was arrested on 22.4.1991 and his statement was also recorded. The investigating officer inspected the place of occurrence on 22.4.1991 and prepared site plan (Ext.Ka.16) on the same day. He also recovered one inland letter (Ext.Ka.6) from the place of occurrence. The statement of Sri Prasadi (Pw-2) was also recorded under Section 161 Cr.P.C. on 21.4.1991. The copy of post mortem report, inquest memo etc. was made in the case diary on 30.4.1991. Photographs of the dead bodies (Exts.4 to 8) were also taken under the direction of the investigating officer. The statements of the witnesses were recorded and after completion of the investigation 3 charge sheet (Ext.Ka.17) was submitted against the accused. 3- After submission of the charge sheet accused- appellant was committed to the court of Sessions and the learned Sessions Judge after hearing the parties framed charge of offence punishable under Sections 498A, 304B and 302 I.P.C. against accused-appellant. The accused pleaded not guilty and claimed to be tried. 4- The prosecution in support of its case got examined as many as nine witnesses in the case. PW-1 Govind Singh, complainant, is the brother of the deceased Smt. Pushpa Devi. PW-2 Prasadi is the father of the deceased. PW-3 Sri Sundermani Puri was posted as Sub-Inspector of Police, Radio Station, New Tehri at the time of occurrence. PW-4 Dr. J.P. Chamoli conducted the post mortem on the dead bodies of Smt. Pushpa Devi and Km. Sarita. PW-5 Sri Madan Mohan Raturi was posted as Radio Centre Officer at Sub Control, New Tehri. PW-6 Constable Gyan Lal was posted at Police Outpost, New Tehri on the date of occurrence. PW-7 Sri S.K. Sagar prepared and proved the inquest memos of Smt. Pushpa and Km. Sarita Exts.Ka.7 and Ka.8, photo lash and challan lash Exts.Ka.9 and Ka.12 and letters to C.M.O. Ext.Ka.13.PW-8 Surendra Pal was posted as Head Muharrir at P.S. Tehri on 20.4.1991. PW-9 Sri Dinesh Chand, Dy. S.P. investigated the case and submitted charge sheet (Ext.Ka.17) against the accused. 5- The statement of the accused was recorded under Section 313 Cr.P.C. wherein he has denied all 4 the allegations of the prosecution case. The accused got examined as many as four witnesses in his defence. DW-1 Anuj Kumar Singh is the younger brother of the accused. DW-2 Sri Satpal Singh Sisodia, S.I., was posted as Incharge of Police Outpost, New Tehri on the day of occurrence. DW-3 S.I. Sri Mange Ram was posted as Head Muharrir at Police Outpost, New Tehri on 19.4.1991. 6- The trial court having considered the entire evidence on record and hearing learned counsel for parties found guilty the accused/appellant of the offence punishable under Sections 498A, 304B and 302 I.P.C. and convicted him, as referred to paragraph-1 of this judgment, vide impugned judgment and order dated 21.11.1997. 7- Feeling aggrieved by the aforesaid impugned judgment and order, the appellant has preferred the present appeal which has been placed before us for disposal. 8- We have heard Sri Lokendra Dobhal, learned counsel for the appellant, Sri S.S. Adhikari, learned A.G.A. for the State/respondent and perused the record. 9- We think it just and proper to mention here the ante mortem injuries found on the dead body of the deceased Km. Sarita by Dr. J.P. Chamoli, who conducted the post mortem examination along with Dr. Narendra Jha and prepared autopsy report (Ext.Ka.3). In the opinion of the doctors, the age of Km. Sarita was about 1 year and 5 months. On examination of the dead body of the child, it was 5 found to be of thin built, rigor mortis present in both upper and lower limbs and neck; hands and thigh were flexed. There were extensive burns on both legs below mid tibia (6th degree), bones were exposed, flesh burnt. In thigh, 5th degree burns on both sides were present, abdomen and thorax had 5th degree burns; fingers were flexed with 5th degree burn; skull was 5/6 degree burnt. Bones were discarticulated and heat haematoma was present. Membranes, brain, pleura, larynzx, peritoneum, pancreas were congested. Sooti carban was present in larynx. The doctors opined that duration of death of Km. Sarita was since about 2 days and cause of death was shock due to burn and suffocation. After conducting the post mortem, Dr. J.P. Chamoli prepared post mortem report (Ext.Ka.3) of the dead body of Km. Sarita. 10- The post mortem of the dead body of Smt. Pushpa Devi was also conducted by Dr. J.P. Chamoli in the presence of Dr. Narendra Jha at Combined Hospital, Tehri on 20.4.1991 at 10.30 a.m. In the opinion of doctors, age of the deceased was about 26 years. Rigor mortis was present in both upper and lower limbs and neck. The tongue was protruding out; eyes were open, elbows were flexed, hands on both sides were clinched. There were extensive burns i.e. six degree burns in lower limbs; right thigh was burnt and lower part of the femur exposed and blackened. Gravid uterus is about eight weeks size. Foetus is about 2.5 cms long and sex is indistinct. Duration time since death was about 2 days. The Medical Officer at the end of its report (Ext.Ka.4) opined that cause of death was shock due to extensive burns. 6 11- The above medical evidence clearly establishes that the both the deceased died homicidal and unnatural death. Now the question for determination before this Court is whether the accused/appellant Sri Krishna subjected his wife (deceased) Smt. Pushpa Devi to cruelty and harassed her before her death for non-fulfillment of demand of dowry or not, and whether the accused/appellant committed murder of his daughter Km. Sarita and the child in the womb of Smt. Pushpa Devi or not. 12- PW-1 Govind Prasad, complainant, is the brother of deceased Smt. Pushpa Devi and the maternal uncle of deceased Km. Sarita. This witness has stated that marriage of his sister was performed with the accused in the month of July 1985. After the marriage accused continued his demand of dowry with him. The accused harassed his sister in several ways due to this reason. The complainant and his family members were not in a position to fulfill the demand of dowry of the accused. According to this witness, sufficient dowry was given in the marriage by him as per his capacity. This witness further stated that accused used to beat his sister by saying that she was uneducated and black. The accused also tried to kill his sister at the time when they were at Chandausi and the report of the same was lodged against the accused at P.S. Beniganj, District Hardoi. However, on 19.4.1991 a wireless message was received that Smt. Pusha Devi died and when he along with his father, mother and wife arrived at Tehri, they came to know that accused Sri Krishna burnt his sister to 7 death and his niece Km. Sarita, aged about one year. This witness has stated that on 20.4.1991 he lodged the First Information Report (Ext.Ka.1) with the police. This witness has also proved the inland letter (Ext.Ka.2) which was written by this witness at the address of Chandausi. 13- PW-2 Prasadi, father of deceased Smt. Pushpa Devi, has corroborated the prosecution story as narrated by PW-1 Govind Prasad. This witness has stated that marriage of his daughter was performed with the accused less than seven years before her death in the month of Asarh. This witness has also stated that his daughter was harassed and beaten by the accused due to non-fulfillment of the demand of dowry i.e. golden chain and a gun. The accused also tried to kill his daughter earlier and the report of the same was lodged against the accused at Police Station Beniganj and copy of the same was given by him to the C.O. during the investigation. 14- Learned counsel for the appellant has argued that the prosecution failed to prove its case against accused/appellant for the offence punishable under Section 498A, 304B and 302 I.P.C., as the marriage of the accused was performed beyond the period of 7 years before the death of Smt. Pushpa Devi; Smt. Pushpa Devi was never treated or subjected to cruelty soon before her death in connection with demand of dowry and she has herself committed suicide; and there is no evidence against the accused even for the offence punishable under Section 302 I.P.C. 15- On the other hand, learned A.G.A. for the State 8 has made rival contention by submitting that the prosecution has been able to prove basic ingredients of Sections 498A, 304B and 302 I.P.C. According to him, there is no dispute that Smt. Pushpa Devi, Km. Sarita and child in the womb died an unnatural death otherwise than under normal circumstances and death occurred within seven years of the marriage of deceased Smt. Pushpa Devi with the accused. Deceased Smt. Pushpa Devi was subjected to harassment by her husband in connection with the demand of dowry. 16- Section 304B I.P.C. provides that where death of a woman is caused by 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 will be called “dowry death”, and such husband or relative shall be deemed to have caused her dowry death. 17- PW-1 Govind Prasad has stated in his statement that marriage of his sister Pushpa Devi was performed with the accused in the month of July 1985. The F.I.R. shows that marriage of Smt. Pushpa with the accused was said to have been performed in the year 1984. This witness further clarified this fact that by seeing the dead body of his sister he was not in proper senses. He told to the police in his statement regarding solemnization of the marriage in the month of July 1985 and on no other date. Further, the inland letter (Ext.Ka.2) shows that the same was written by this witness 9 (PW-1) to the accused on 20.12.1984 at the address of Chandausi where she had gone with the accused just after the marriage. The evidence of PW-1 is also corroborated from the statement of PW-2 Prasadi, who has stated in his evidence that marriage of his daughter was performed with the accused less than 7 years before her death. From both the angles the marriage of Smt. Pushpa with the accused, whether from July 1984 or July 1985, the period of marriage shall be less than 7 years. DW-4 Sri Krishna (accused) has stated in his evidence that his marriage was performed with the deceased Pushpa about 9 years ago from her death i.e. in the year 1982 and his first daughter was born after 3 years of the marriage i.e. in the year 1985. This witness (DW-4) has disclosed the age of that girl as 9½ years in the statement which was recorded on 5.8.1997. In this way, going 12½ years back from 5.8.1997, as per the statement of DW-4, it is clear that his marriage with deceased was performed not beyond July 1984. Thus, it is clear by statements of the said witnesses that marriage of Smt. Pushpa with the accused was performed not beyond July, 1984 and the same was performed within a period of 7 years from her death. 18- As far as harassment and cruelty by the accused for non-fulfillment of demand of dowry is concerned, there is clinching evidence on record which proves that he treated the deceased with cruelty for non-fulfillment of demand of dowry. PW- 1 Govind Prasad, brother of the deceased Smt. Pushpa Devi and PW-2 Prasadi, father of the deceased have given natural narration of facts after they got the deceased married with accused- 10 appellant Sri Krishna. PW-2 Prasadi has specifically stated in his evidence that his daughter was harassed and beaten by the accused due to non- fulfillment of demand of dowry i.e. golden chain and a gun. These witnesses i.e. PW-1 and PW-2 have also stated that not only the deceased used to tell about the harassment meted to her and cruelty committed against her but also they have further stated that once accused tried to kill Smt. Pushpa Devi at the time when they were at Chandausi and report of the same was lodged against the accused at P.S. Beniganj, District Hardoi. In the First Information Report (Ext.Ka.1) also there is specific mention regarding demand of dowry by the accused and due to non-fulfillment of the same the harassment and cruelty meted to Smt. Pushpa Devi. The contents of the said report also reveal that relations of the accused with deceased were not cordial. PW-7 S.I. Sri S.K. Sagar clearly stated that accused was not present at the spot at the time of preparing the inquest memo and other papers of the dead bodies. The absence of the accused itself shows that the accused was guilty and whatever cruelty is committed against the deceased that was on the part of the accused-appellant Sri Krishna and none else. The injuries found on the person of the deceased clearly indicate that Smt. Pushpa Devi (deceased) was subjected to cruelty soon before her death. 19- Further, post mortem reports of Km. Sarita (Ext.Ka.3) and of Smt. Pushpa Devi (Ext.Ka.4) establish on record that there was extensive burns on their bodies of about 5th and 6th degree. Photographs (Exts.4 to 8) relating to both the dead 11 bodies clearly show that they were burnt almost completely. PW-4 Dr. J.P. Chamoli has stated in his statement that extensive burns found on the dead bodies indicate that they were not suicidal but they might have been caused by someone else. He has further stated that if some one takes intoxicating articles and at once sets fire by pouring kerosene oil, even then such extensive burns are not possible. The condition of dead bodies shows that they were not burnt by the victims themselves, as if they had burnt themselves then certainly after the fire they would have run hither and thither in the room and also cried, but there was no sign of running in the room or their touching the walls. The medical evidence adduced by PW-4 Dr. J.P. Chamoli is also corroborated from the statement of PW-5 Madan Mohan Raturi, residing in the adjoining quarter of the accused, who has stated that both the dead bodies were lying in suspicious condition in the middle of the cot in burnt condition. PW-4 Dr. J.P. Chamoli further opined in his report (Ext.Ka.4) that deceased Smt. Pushpa Devi had pregnancy at the time of her death and on examination of the generation of organs, it was found that uterus shows foetus of 2.5 cms long and sex is indistinct. It is clearly proved from the post mortem examination (Ext.Ka.3 and Ext.Ka.4) that deceased Smt. Pushpa Devi and his daughter Km. Sarita died homicidal death and not the natural death. It is also established on record that deceased had died in the house of her husband where none else except her husband and daughter were living with her. 20- The statements of the above witnesses adduced by the prosecution, read with the above 12 medical evidence clearly show that the deceased was subjected to cruelty soon before her death for non-fulfillment of demand of dowry. Therefore, we are in agreement with the finding recorded by the trial court that the prosecution has been successful in proving the charge of offence punishable under Section 498A and 304B I.P.C. as against the accused-appellant with regard to Smt. Pushpa Devi. 21- Further, the prosecution has also been successful in proving the alternative charge punishable under Section 302 I.P.C. against the accused/appellant with regard to Km. Sarita and a child in the womb of Smt. Pushpa Devi. From the evidence on record, it is established that Km. Sarita and a child in the womb of deceased Smt. Pushpa Devi were also killed in the present case due to burning and such burns, in the opinion of Dr. J.P. Chamoli (PW-4), were not suicidal. Apart from it, extensive burns found on the dead bodies, condition of dead bodies being found inside the room in the middle of the cot having no signs of their moving or touching the wall and non-presence of accused at the time of preparing the inquest memo etc. shows the conduct of the accused and connects him with the crime of commission of murder of Km. Sarita and a child in the womb of deceased Pushpa Devi. As such, we are of the view that conviction of accused-appellant Sri Krishna on charge of offence punishable under Section 302 I.P.C. is just and appropriate and the appellant is liable to be convicted on the said charge also. 22- In view of the above discussion, we find that the death of deceased Smt. Pushpa Devi, Km. Sarita 13 and child in the womb occurred due to violence and the prosecution has been able to establish that accused Sri Krishna was the only person in the company of the deceased at the relevant time on the fateful day. There is nothing on record to suggest that death of deceased was suicidal rather it has been established from the medical evidence that the death of deceased was homicidal and unnatural. In our view, the prosecution has been successful in proving all the ingredients of the offence punishable under Sections 498A, 304B and 302 I.P.C. beyond all reasonable doubt. 23- For the reasons stated above, appeal lacks merit and is liable to be dismissed. 24- Accordingly, appeal is dismissed. Conviction and sentence awarded against the appellant is affirmed. The appellant is on bail. His bail bonds are cancelled and sureties are discharged. He shall be taken into custody forthwith to serve out the sentence awarded by the trial court. 25- Let the record be transmitted to the trial court for compliance to be reported to this Court within two months. (Nirmal Yadav, J.) (B.C. Kandpal, J.) May 14, 2010 SP