1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Jail Appeal No. 34 of 2011 1. Jai Prakash S/o Prem Singh 2. Smt. Rajni Devi W/o Shri Prem Singh R/o at present District Jail Dehradun …................ Appellants Versus State of Uttarakhand ……….Respondent Smt. Gaura Devi Dev, Advocate, ( Amicus Curiae), present for the appellants Shri Hari Om Bhakuni, Brief Holder, present for the State. Hon’ble Prafulla C. Pant, J. This appeal, received through Superintendent District Jail Dehradun, is directed against the judgment and order dated 25.04.2011, 2 passed by Additional Sessions Judge, Rishikesh, in Sessions Trial No. 84 of 2010, whereby said court has convicted the accused/appellant Jai Prakash (husband of the deceased) under section 304B and 498A of I.P.C., and one punishable under section ¾ of Dowry Prohibition Act, 1961. The convict has been sentenced to rigorous imprisonment for a period of eight years and directed to pay fine of ` 10,000/- under section 304B of I.P.C., rigorous imprisonment for a period of two years and directed to pay fine of ` 3,000/-under section 498A of I.P.C, and rigorous imprisonment for a period of two years and directed to pay fine of ` 3,000/-under section ¾ of Dowry Prohibition Act, 1961. The accused appellant no.2 Rajni Devi (mother in law of the deceased) has been convicted under section 498A of I.P.C., and under section ¾ of Dowry Prohibition Act, 1961. She has been sentenced to rigorous imprisonment for a period of two years and directed to pay fine of ` 3,000/- under section 498A of I.P.C., and rigorous imprisonment for a period of two years and directed to pay fine of ` 3,000/- under section ¾ 3 of Dowry Prohibition Act, 1961. (2) Heard learned Amicus Curiae for the appellants, and learned counsel for the State, and also perused the lower court record. (3) Prosecution story, in brief, is that accused/appellant Jai Prakash got married to Bindu (deceased) on 21.05.2009. PW2 Leelawati (mother of the deceased) gave First Information Report (Ex-A3) on 19.02.2010, at police station Rishikesh, that his daughter Bindu is being subjected to cruelty at the hands of her husband Jai Prakash (present appellant no.1), and mother in law Rajni Devi (present appellant no.2), and she (Rajni Devi) has ousted her (deceased) on 17.02.2010, at 4.00 p.m. After the search of the girl with the help of the police, it was found that after the deceased was ousted by her mother in law, she reached to her husband's place in Delhi. What happened at the husband's place to Bindu (deceased) is described in the report (Ex A3) given by PW1 Shyam Vriksh (father of the deceased), who has stated that after his daughter 4 was subjected to cruelty for non fulfillment of demand of dowry, and ousted by her mother in law, she reached to her husband's house in Delhi, but there, her husband Jai Prakash (appellant no.1)asked her to go back, and told the complainant on phone that he will never be able to see her daughter's face. On the same night, the accused/appellant Jai Prakash again gave a ring, and told that Bindu (deceased) has hanged herself from a fan, and switched off the phone. After suicidal death of Bindu at her husband's place, Section 304B of I.P.C., was added to Crime No. 77 of 2010, on the basis of report ( Ex A-3) given by PW1 Shyam Vriksh to the police. Post mortem examination on the dead body of Bindu (deceased) was conducted in Deen Dayal Upadhyay Hospital, Hari Nagar, New Delhi, where the Medical Officer, Dr. Guru Prakash Devgun (PW4) conducted post mortem examination. After observing the ligature mark around the neck of the deceased at the time of autopsy on the dead body, post mortem report (Ex A-8) was prepared by the Medical Officer, who opined that cause of death of the 5 deceased was asphyxia from ante mortem hanging (suicidal). PW10 Circle Officer G.C.Tamta, investigated the crime, and after interrogating the witnesses, filed charge sheet (EX A-15) against both the accused Jai Prakash (husband of the deceased), and accused Rajni Devi (mother in law of the deceased), for their trial in respect of offences punishable under section 498A, 304B of I.P.C., and one punishable under section ¾ of Dowry Prohibition Act, 1961. (4) The Judicial Magistrate, on receipt of the 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 Additional Sessions Judge, Rishikesh, after hearing the parties framed charge of offences punishable under section 498A of I.P.C., section 304B of I.P.C., read with section 34 of I.P.C., and one punishable under section ¾ of Dowry Prohibition Act, 1961, against both the accused Jai Prakash and Rajni Devi, who pleaded not guilty and 6 claimed to be tried. On this, prosecution got examined PW1 Shyam Vriksh (father of the deceased), PW2 Leelawati, (mother of the deceased), PW3 R.K.Saini (Tehsildar of Delhi, who prepared the inquest report), PW4 Dr. Guru Prakash Devgun (who conducted autopsy report at Delhi), PW5 Sub Inspector Sita Ram, PW6 Vyas Gupta (scribe of the report), PW7 Sub Inspector Ganesh Kutyal, PW8 Jodh Singh, PW9 Head Constable Narander Singh (who prepared check report of F.I.R) and PW10 Circle Officer G.C.TAmta (who investigated the crime). Oral and documentary evidence was put to the accused, including the suicide note (Ex A-2) recovered from the person of the deceased. The accused denied the fact that any demand of dowry was made or the cruelty committed against the deceased. However, they admitted that Bindu was married to Jai Prakash on 21.05.2009, and Rajni Devi is the mother in law. In defence DW1 Ganesh Prasad was got examined, who is neighbour of the mother in law of the deceased. He has stated that he attended the marriage and there was no demand of dowry made from the 7 deceased by her husband or mother in law. The trial court after hearing the parties, found that charge of all the three offences punishable under section 304B and 498A of I.P.C., and one punishable under section ¾ of Dowry Prohibition Act, 1961, is proved as against accused/appellant Jai Prakash and convicted him accordingly. The trial court further found that as against accused/appellant Rajni Devi, charge of offences punishable under section 498A and ¾ of Dowry Prohibition Act, 1961, are made out but offence punishable under section 304B of I.P.C was not found proved against her. Accordingly, she was acquitted of charge of offence punishable under section 304B of I.P.C. Each one of the convicts was sentenced to rigorous imprisonment for a period of two years and directed to pay fine of ` 3,000/- under section 498A of I.P.C., and rigorous imprisonment for a period of two years and directed to pay fine of ` 3,000/- under section ¾ of Dowry Prohibition Act, 1961. The accused/ appellant Jai Prakash was further sentenced to rigorous imprisonment for a period of eight years and directed to pay fine of ` 10,000/-. Aggrieved 8 by said judgment and order dated 25.04.2011, this appeal is got sent by the accused/appellants through the Superintendent District Jail, Dehradun. (5) Before further discussion, we think it just and proper to mention the ante mortem injury recorded by PW4 Dr. Guru Prakash Devgun, who conducted the post mortem examination, and prepared autopsy report ( Ex A-8). The ante mortem injury recorded by the Medical Officer in the autopsy report is being reproduced below :- Ligature mark present over the upper border of thyroid cartilage in the form of band type parchementised reddish brown in colour. Base is dry. Leathery going obliquely toward posterior part of neck. Ligature mark encircled whole neck except post part of neck. Total neck size 27 cm. Ligature size 20x3 c. Upper border of ligature mark 5cm from below chin. Lower border of ligature mark 13 cm from misternii. 1 cm from right mastoid and 4 cm from left mastoid below. 9 PW4 Dr. Guru Prakash Devgun in the autopsy report (EX A-8) has mentioned that the deceased had died from asphyxia from ante mortem ligature hanging. He has further observed that the manner of the death was suicidal. On the basis of the above evidence on record it is established on the record that the deceased had died unnatural death in February 2011. (6) Admittedly, the deceased got married with the accused/appellant Jai Prakash in May 2009. As such, deceased had died unnatural death within one year of her marriage. Post mortem examination shows that the age of the deceased was 25 years at the time of her death. (7) Now, this court has to see whether it is proved on the record that the deceased was subjected to cruelty for non fulfillment of demand of dowry, or not. In this connection, two witnesses PW1 Shyam Vriksh (father of the deceased) and PW2 Leelawati (mother of the deceased) have been got examined by the prosecution. Both of them have stated that even 10 after giving customary dowry to the deceased at the time of her marriage with Jai Prakash, her mother in law Leelawati demanded dowry of ` 50,000/- and a bike, after the marriage. It is also stated by the two witnesses that as they (PW1 and PW2) could not fulfill the demand, their daughter was beaten by Jai Prakash (appellant no.1) and Rajni Devi (appellant no.2), who used to harass her. It has come on the record in the statements of the two witnesses that accused Jai Prakash used to serve at Delhi and Rajni Devi used to live in Rishikesh. Both witnesses PW1 Shyam Vriksh and PW2 Leelawati have specifically stated that on 17.02.2010, their daughter was ousted by her mother in law from her house about which they got information on phone from their daughter where after they made search for her and PW2 Leelawati gave a report ( Ex A4) at police station Shyampur, Rishikesh. The witnesses have further stated that they felt relieved when they knew that their daughter had gone by bus, to her husband's house in Delhi, after she was ousted by mother in law but they got information from Delhi through their son in 11 law in which he threatened that they will not be able to see face of their daughter. The witnesses have further narrated that on 18.02.2010, their son in law (Jai Prakash) informed them in the night on phone that the deceased has committed suicide. (8) It is also relevant to mention here, what has been stated by the deceased Bindu in the suicide note ( Ex A-2) left by her. In said suicide note, she has stated that after she reached her husband's, house he insisted her to go back to her mother in law's house, who used to beat her. She has specifically mentioned that her husband and mother in law are the only persons responsible for her death. (9) Having re-assessed the entire evidence on record, this court finds no illegality in the conviction recorded by the trial court. This court has gone through the statements of DW1 Ganesh Prasad , who is the neighbour of the accused/appellant no.2 Rajni Devi, who has simply stated that in the marriage of Jai Prakash, 12 no dowry was given and taken. However, it is difficult to say that he had any knowledge as to what were the demands made by the accused from the parents through her (deceased), after her marriage. As such, statement of this witness produced on behalf of the defence is of little help to the accused/appellants (10) For the reasons as discussed above, so far as the conviction of the appellants is concerned, there is no scope to interference with the same. However, on the point of sentence reducing of sentence to rigorous imprisonment for a period of seven years on the count of sentence 304B I.P.C., to accused/appellant no.1 Jai Prakash would meet the ends of justice. Accordingly,on the point of conviction the appeal is dismissed. The appeal of accused/appellant no.2 Rajni Devi is concerned, the same is dismissed. Appeal of accused/appellant Jai Prakash is also dismissed so far as his conviction recorded by the trial court in respect of offences punishable under section 304B, 498A of I.P.C., and one punishable under section ¾ of Dowry Prohibition Act, 1961, is 13 concerned. However, the sentence awarded against him by the trial court under section 304B of I.P.C. is set aside, and appellant Jai Prakash is sentenced to rigorous imprisonment for a period of seven years under section 304B of I.P.C. In respect of other offences, the sentence is not interfered with. The trial court has already recorded that sentence shall run concurrently. Let a copy of this judgment be sent to the Superintendent of the jail concerned where the accused/appellants are serving out the sentence. Lower court record be sent back. (Prafulla C. Pant, J.) 26.12.2011 Nahid