IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 124 of 2001 (Old No. 2975 of 1999) (1) Harendra Kumar S/o Late Badri Dutt (2) Smt. Deepa W/o Late Badri Dutt. Both R/o Village Patal, Patti North Modarsyun, District Pauri Garhwal. ………..Appellants. Versus State ……..Opposite Party. Mr. Shobhit Saharia and Mr. L.K. Tiwari, Advocates, for the appellant. Mr. Amit Bhatt, Additional Government Advocate, with Mr. B.S. Parihar, Brief Holder, for the State-Opposite Party. Hon’ble Prafulla C. Pant, J. Hon’ble B.S. Verma, J. [Oral – Hon’ble Prafulla C. Pant, J.] This appeal, preferred under Section 374(2) of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 12.11.1999, passed by learned Sessions Judge, Pauri Garhwal, in Sessions Trial No. 24 of 1996, whereby accused / appellants Harendra and Smt. Deepa Devi are convicted under Section 498-A read with Section 34, and under Section 304-B read with Section 34 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.). Each one of the convicts is 2 sentenced to undergo rigorous imprisonment for a period of three years under Section 498-A / 34 I.P.C., and imprisonment for life under Section 304-B / 34 I.P.C.. (2) Heard learned counsel for the parties and perused the lower court record. (3) Prosecution story in brief is that Sunita Devi (deceased) got married to accused / appellant Harendra in the intervening night of 12th and 13th May 1995, in Village Gagwada, Patti Gagwadsyun, District Pauri Garhwal. After her marriage, she started living with her husband and in-laws in their village Patal, Patti North Modarsyun, District Pauri Garhwal. It is alleged by the prosecution that at the time of marriage the appellant and his parents demanded dowry of Rs.60,000/- which could not be fulfilled. Consequently, they started harassing the deceased and threatened that accused / appellant Harendra would get married to some other lady. It is also alleged that Sunita Devi (deceased), before her death twice came to her parents’ house and both the time she complained that she is being harassed by her husband and in-laws for non- fulfillment of demand of dowry. Finally, Sunita Devi died on 30th November 1995 (within one year of the marriage) an unnatural death. A report was lodged from the side of the husband’s family with concerned Patwari that Sunita Devi has died due to accidental 3 burn injuries. Prosecution case is that the members of the parental side of the deceased were given a false information that the deceased had fallen from a tree. After the members of parental side of the deceased came to the village of the accused, where Sunita had died and saw that the deceased had died due to burn injuries, a report (Ext.A-1) was lodged by (P.W.1) Basanti Devi, mother of the deceased on 19.12.1995. Meanwhile, a report (Ext.A-2) was already given by P.W.2 Om Prakash, brother of the deceased, to the District Magistrate on 02.12.1995 alleging that the accused / appellant and his parents harassed the deceased for non-fulfillment of demand of dowry and she was burnt to death by them. On the basis of the report filed by Basanti Devi, mother of the deceased, Patti Patwari, Area North, Modarsyun, registered a Case Crime No. 1 of 1995 and prepared check report (Ext.A-14). (In interior hills of Uttarakhand, certain revenue officials are given police powers under U.P. Government Notification No. 494/VIII-418-16, dated 07.03.1916). The Crime No. 1/1995 was registered on the basis of the Report (Ext.A-1) relating to offence punishable under Sections 304-B and 498-A I.P.C. against Badri Dutt (father-in-law of the deceased), Harendra (husband of the deceased / present appellant) and mother-in-law of the deceased. Initially the investigation was done by G.K. Kotnala (C.W.1), Patti Patwari, North Modarsyun, and later transferred to Rajendra Prashad Joshi (C.W.2), Naib Tehsildar of 4 the area. Before First Information Report was lodged, after receiving the information of death of Sunita Devi from Badri Dutt (father-in-law of deceased), Patwari of the area went to the spot, took the dead body in a sealed cover and prepared inquest report (Ext.A-3) on 01.12.1995. He also prepared the other relevant papers i.e. Sketch of the Dead Body (Ext.A-11), Police Form No. 13 (Ext.A-12), Sample Seal (Ext.A-13) and Letter to Chief Medical Officer requesting him for post mortem examination. The post mortem examination was conducted by Dr. K.S. Jangpangi on 01.12.1995 at 4.00 p.m. on the dead body, and after recording the ante mortem burn injuries, prepared Autopsy Report (Ext.A-5). He opined that death of the deceased has occurred due to shock as a result of ante mortem burn injuries. The Investigating Officer (C.W.2) after completing the investigation submitted charge sheet (Ext.A-10) against the accused / appellant Harendra and his parents, namely, Badri Dutt and Smt. Deepa Devi. (4) The 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. The learned Sessions Judge, after hearing the parties, on 15.07.1997, framed charge of offence punishable under Section 498-A read with Section 34 I.P.C. and 5 one punishable under Section 304-B read with Section 34 I.P.C. against accused / appellant Harendra and his mother Smt. Deepa Devi. An alternative charge was also framed relating to offence punishable under Section 302 read with Section 34 I.P.C.. Both the accused pleaded not guilty and claimed to be tried. It is pertinent to mention here that accused Badri Dutt (father-in-law of the deceased) had died during the trial as such case stood abated as against him before charge could be framed by the trial court. After the aforesaid two accused pleaded not guilty, the prosecution got examined P.W.1 Basanti Devi, complainant and mother of the deceased, P.W.2 Om Prakash, brother of the deceased, P.W.3 Dr. Kailash Jangpangi, who performed post mortem examination on the dead body of the deceased, P.W.4 Vidya, sister of the deceased and P.W.5 Dharmanand, uncle of the deceased. Apart from these prosecution witnesses, C.W.1 G.K. Kotnala, who started the investigation and C.W.2 Rajendra P. Joshi, who completed the investigation were got examined as Court Witnesses. Oral and documentary evidence was put to the accused / appellants under Section 313 Cr.P.C., who admitted that Sunita Devi (deceased) got married to Harendra in the intervening night of 12th/13th May 1995 but alleged that rest of the evidence is false. They pleaded that Sunita Devi (deceased) committed suicide. In the additional statement recorded under Section 313 Cr.P.C. accused / appellant alleged that the case instituted against 6 them is false. However, they admitted that inquest report of the dead body of the deceased was prepared by the Patwari on 01.12.1995. No evidence in defence was given on behalf of accused. The trial court after hearing the parties found accused / appellant Harendra and Smt. Deepa Devi guilty of charge of offence punishable under Section 304-B read with Section 34 I.P.C. and one punishable under Section 498-A read with Section 34 I.P.C.. The trial court did not find the two guilty of the offence punishable under Section 302 / 34 I.P.C. and acquitted them of said charge. After hearing on sentence, the trial court sentenced to each of the convicts rigorous imprisonment for a period of three years under Section 498A-/34 I.P.C. and imprisonment for life under Section 304-B/34 I.P.C.. Aggrieved by said judgment and order dated 12.11.1999, passed by learned Sessions Judge, Pauri Garhwal, in Sessions Trial No. 24 of 1996, this appeal was filed before Allahabad High Court on 25.11.1999, where it was admitted on 26.11.1999. The appeal is received by transfer to this Court under Section 35 of U.P. Reorganisation Act, 2000 (Central Act 29 of 2000), for its disposal. During the pendency of the appeal, appellant no. 2 Smt. Deepa Devi (mother-in-law of the deceased) has died and the appeal filed by her stands abated. As such, the appeal was heard as filed by appellant no. 1 Harendra (husband of the deceased). 7 (5) Before further discussions, we think it just and proper to mention here the ante mortem injuries found by Dr. K.S. Jangpangi (P.W.3), who conducted post mortem examination on the dead body of Sunita Devi on 01.12.1995 at 4.00 p.m. and prepared Autopsy Report (Ext.A-5). The ante mortem injuries as mentioned in the Autopsy Report is being reproduced below:- There is lyrale of burn injury all over the body sparing pubic region and foot. The singing of scalp, axillary hair present. There is peeling of blister skin at places. The Medical Officer opined that the death of the deceased has occurred due to shock on account of ante mortem burn injuries. From the evidence given by P.W.3 Dr. K.S. Jangpangi read with Autopsy Report (Ext.A-5), it is established on record that Sunita Devi had died unnatural death. It is admitted to the accused / appellant Harendra that his wife Sunita Devi had died on 30th November 1995 due to burn injuries. Now this Court has to see whether she (deceased) was subjected to cruelty by the appellant for non-fulfillment of demand of dowry soon before she died unnatural death or not. 8 (6) Section 304-B of I.P.C. 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 extend to imprisonment for life.” 9 (7) The another relevant provision of law i.e. Section 113-A of the Indian Evidence Act, 1872, reads as under:- “113A. Presumption as to abetment of suicide by a married woman.-When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. Explanation.-For the purposes of this section, “cruelty” shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1860)” (8) Now, we come to the testimony given by the prosecution witnesses against the accused / appellant. 10 P.W.1 Basanti Devi, mother of the deceased, has stated that her daughter Sunita got married to accused Harendra about 6-7 months before her death. At the time of her marriage a demand of Rs.60,000/- as dowry was made by accused / appellant Harendra and his parents which could not be fulfilled. At that very point the accused wanted to take back marriage procession (BARAT) but after intervention of some people they agreed for the marriage. After the marriage Sunita Devi came twice to her parental house and both times complained that her husband and in-laws are harassing her for non-fulfillment of demand of dowry. This witness (P.W.1) has also stated that she lodged the First Information Report (Ext.A-1). (9) P.W.2 Om Prakash, brother of the deceased, has also corroborated that his sister got married to accused / appellant Harendra in May 1995. He has also stated that when he went to the husband’s house of Sunita Devi, accused / appellant Harendra and his parents complained that they felt insulted as the demand of Rs.60,000/- was not met. (10) P.W.4 Km. Vidya, real sister of the deceased has also corroborated the facts alleged by P.W.1 Basanti Devi, mother of the deceased. (11) P.W.5 Dharmanand, uncle of the deceased, has also stated that at the time of marriage in the 11 intervening night of 12th and 13th May 1995, accused / appellant with his parents made demand of Rs.60,000/ as dowry, and on non-fulfillment they threatened to take back the marriage procession (BARAT). This witness has further corroborated the fact that after marriage, twice, when Sunita before her death had come to her parental house, she complained about harassment by accused / appellant and his parents for non-fulfillment of demand of dowry. (12) We have reassessed the entire evidence adduced by the prosecution witnesses and found that their testimony is natural, consistent and trustworthy. The oral evidence of P.W.1 Basanti Devi, P.W.2 Om Prakash and P.W.5 Dharmanand gets corroborated from the letter written by Sunita Devi (deceased) to her father. We concur with the finding of the trial court that the prosecution has successfully proved charge of offence punishable under Section 498-A read with Section 34 I.P.C. and one punishable under Section 304-B read with Section 34 I.P.C. against the accused / appellant Harendra. We uphold the conviction recorded by the trial court. However, as far as the sentence awarded by the trial court is concerned, we feel that the trial court has awarded the maximum punishment i.e. imprisonment for life under Section 304-B/34 I.P.C.. Sri Shobhit Saharia, learned counsel for the appellant drew attention of this Court that the factum of death of the deceased was not concealed by the accused / 12 appellant as the information was sent to the parental house of the deceased and also to the Patwari of the area and that is why the inquest report (Ext.A-3) was prepared by the Patwari much before the First Information Report was lodged against the accused / appellant and his parents. Having considered all the circumstances of the case, we feel that punishment of rigorous imprisonment for a period of ten years under Section 304-B I.P.C. would have met the ends of justice in this case. Accordingly, we modify the sentence awarded by the trial court and reduce it to rigorous imprisonment for ten years under Section 304-B/34 I.P.C.. The punishment awarded under Section 498- A/34 I.P.C. needs no interference. With the above modification, this appeal filed by convict / appellant Harendra stands disposed of. He is in jail. Registry is directed to send copy of this judgment to the Superintendent of the jail concerned. As far as the appeal of appellant no. 2 is concerned the same stands abated on account of her death during the pendency of this appeal. Lower Court Record be sent back. (B.S. Verma, J.) (Prafulla C. Pant, J.) 22.10.2008 NS 13