IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Chapter VIII, Rule 32(2)(b) Description of case Date of decision: 28.04.2008 Criminal Appeal No. 228 of 2006 A.F.R. (Approved for Reporting) Not approved for Reporting (Initial of Judge) Date: 28.4.2008 Note: Bench Reader will attach this at the top of first page of the judgment when it is put up before the Judge for signature. Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 228 of 2006 (1) Mohd. Shahid alias Shabbu S/o Rashid Ahmed (2) Rashid Ahmed alias Munna S/o Mazir Ahmed R/o Yamuna Vihar, Delhi. ……………………….Appellants. Versus State of Uttarakhand …………Opp. Party. Sri Abdul Wahid and Sri Siddhartha Sah, Advocates for the appellants. Sri H.C. Pujari, Additional Government Advocate for the State. Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. [Per- Prafulla C. Pant, J.] This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 09.10.2006, passed by learned Sessions Judge, Dehradun, in Sessions Trial No. 17 of 2005, whereby accused / appellant Mohd. Shahid alias Shabbu is convicted under Sections 498A and 304B of Indian Penal Code, 1860 (hereinafter referred as I.P.C.), and accused / appellant Rashid Ahmed alias Munna is convicted under Section 4 of Dowry Prohibition Act, 1961. Accused / appellant Mohd. Shahid alias Shabbu is sentenced by said court to imprisonment for life under Section 304B I.P.C. and rigorous imprisonment for a period of two years and directed to pay fine of Rs.5,000/- under Section 498A I.P.C., in default of payment of which he is directed to undergo further six months’ rigorous imprisonment. Accused / appellant Rashid Ahmed alias Munna is sentenced to rigorous imprisonment for a period of one year and also directed to pay fine of Rs.10,000/- under Section 4 of Dowry Prohibition Act, 1961, with further direction that in case of default he shall undergo further six months’ rigorous imprisonment. (2) Heard learned counsel for the parties and perused the lower court record. (3) Prosecution story in brief is that Saima @ Sahana Begum (deceased) was daughter of Late Firasat Khan, resident of District Shahjahanpur. After death of her parents, she started living with her aunt (BUA father’s sister) Shakila Begum (P.W.2) in Yamuna Vihar, Delhi. Liyakat Khan (real brother of Firasat Khan / uncle of the deceased), the complainant (P.W.1) with the help of Shakila Begum (P.W.2) arranged marriage of Saima @ Sahana Begum (deceased) with Mohd. Shahid alias Shabbu (accused / appellant no. 1). Rashid Ahmed (accused / appellant no. 2) is father of Mohd. Shahid alias Shabbu, resident of Delhi. The marriage between Mohd. Shahid and Saima was solemnized in Delhi on 30.11.2003. Thereafter, Mohd. Shahid, who used to work in Dehradun, started living there with his wife (deceased). According to the prosecution on 10.03.2004, Shakila Begum (P.W.2) and complainant Liyakat Khan (P.W.1) received information on phone at Delhi that Saima has died in Dehradun, where she used to live with her husband. On receiving the information they went to the house of the accused / appellant Mohd. Shahid and found Saima dead. On the same day i.e. 10.03.2004, at about 22.15 hours, Liyakat Khan (P.W.1) prepared First Information Report (Ext.A-1) and lodged the same with Police Station Kotwali, Dehradun, on which Crime No. 84 of 2004 was entered and a case is registered under Sections 498A and 304B I.P.C. against Mohd. Shahid and his relatives. In the First Information Report, it is alleged by the complainant Liyakat Khan that Mohd. Shahid, his father Rashid Ahmed, mother Shanno and brother Javed, used to harass the deceased for non-fulfillment of demand of dowry. It is further alleged in the First Information Report that Saima has been killed by the accused and thereafter hanged. On receiving the information at Police Station, Sub Inspector Anand Lal (P.W.5) reached to the house of accused Mohd. Shahid. He took the dead body of deceased in his possession and prepared inquest report (Ext.A-2). He also prepared letter to Chief Medical Officer (Ext.A-10) requesting for postmortem examination, Police Form No. 13 (Ext.A-12), sketch of the dead body (Ext.A-13) and sample seal (Ext.A-14), and sent the dead body for postmortem examination. The postmortem examination was conducted by team of two Medical Officers, namely, Dr. Hemant Bhardwaj (P.W.4) and Dr. J.S. Bisht. They found that there was a ligature mark of 29cm x 1 cm around the neck of the deceased above the adams apple and prepared postmortem report (Ext.A-9) and opined that the cause of death was asphyxia as a result of manual strangulation. Since it was a case of alleged ‘dowry death’ the investigation was handed over to Brijendra Kumar Juyal, Deputy S.P. (P.W.7), who interrogated Liyakat Khan. Shakila Begum, Sirajuddin and Akhtari Begum. Meanwhile, Sub Inspector Anand Lal, who had found one Chunari (M.Ext.1) and one note written by deceased (Ext.2), prepared the recovery memo (Ext.A-15 and Ext.A-16). The Investigating Officer (Brijendra Kumar Juyal) also collected Nikahnama (M.Ext.3) and one settlement deed (M.Ext.4). During investigation he inspected the spot on 11.03.2004 and prepared site plan (Ext.A-17). On completion of investigation charge sheet (Ext.A-18) was filed against accused Mohd. Shahid alias Shabbu (husband of the deceased), Rashid Ahmed (father-in-law of the deceased) Shanno (mother-in-law of the deceased) and Javed (brother-in-law of the deceased) for their trial in respect of offences punishable under Sections 498A and 304B I.P.C. (4) The Chief Judicial Magistrate, on 05.06.2004, 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 Sessions Judge, Dehradun, on 15.03.2005, after hearing the parties, framed charge of offences punishable under Sections 498A and 304B I.P.C. and one punishable under Section 4 of the Dowry Prohibition Act, 1961, against all the four accused, namely, Mohd. Shahid alias Shabbu, Rashid Ahmed, Shanno and Javed, who pleaded not guilty and claimed to be tried. On the same day a separate alternative charge was framed against Mohd. Shahid alias Shabbu in respect of offence punishable under Section 302 I.P.C., to which also he pleaded not guilty and claimed to be tried. On this prosecution got examined P.W.1 Liyakat, complainant and uncle of the deceased, P.W.2 Shakila Begum (aunt of the deceased), P.W.3 Constable Heera Singh, who prepared the check report (Ext.A-6) of First Information Report at the Police Station, P.W.4 Capt. Hemant Bhardwaj, a Medical Officer, a member of team of Doctors, who conducted autopsy on the dead body of Saima, P.W.5 Sub Inspector Anand Lal, who started investigation, P.W.6 Naseem Jahan (declared hostile) and P.W.7 Brijendra Kumar Juyal, Deputy S.P. to whom the investigation was handed over and who completed the investigation. All the evidence including the oral and documentary evidence was put to the accused under Section 313 Cr.P.C. in reply to which they admitted that on 30.11.2003 Saima (deceased) got married to Mohd. Shahid. However, rest of the evidence was alleged to be false. It is also stated by the accused / appellants that they were falsely implicated due to enmity. In defence D.W.1 Sirajuddin was examined on behalf of the accused. After hearing the parties, the trial court found that prosecution failed to prove the charge of offences punishable under Sections 498A and 304B of I.P.C. or that of Section 4 of Dowry Prohibition Act, 1961, against Shanno alias Shahnaj and Javed alias Annu and consequently acquitted them of the charge. The trial court found accused Rashid Ahmed (present appellant no. 2) guilty of only charge of offence punishable under Section 4 of Dowry Prohibition Act, 1961, but he was not found guilty of any of the other charges, as such convicted only under Section 4 of Dowry Prohibition Act, 1961. However, Mohd. Shahid (present appellant no. 1) was found guilty of charge of offences punishable under Sections 304B and 498A I.P.C. and after hearing on sentence Mohd. Shahid was sentenced to imprisonment for life under Section 304B I.P.C. and rigorous imprisonment for a period of two years and directed to pay fine of Rs. 5,000/- under Section 498A I.P.C., in default of payment of fine he was directed to undergo rigorous imprisonment for a period of six months. Rashid Ahmed was sentenced to rigorous imprisonment for a period of one year under Section 4 of Dowry Prohibition Act, 1961, and also directed to pay fine of Rs.10,000/- in default of payment of which he was directed to undergo rigorous imprisonment for a period of six months. Aggrieved by said judgment and order dated 09.10.2006, passed by learned Sessions Judge, Dehradun, in Sessions Trial No. 17 of 2005 , this appeal is filed by the two convicts. (5) Before further discussions it is pertinent to mention here the relevant provisions of law applicable to the present case. The expression ‘dowry death’ is defined under Section 304B which provides that where the death of a woman is caused by any burns of 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 of dowry, such death shall be called ‘dowry death’. It further provides that such husband and relative shall be deemed to have caused the death. Section 113A of the Indian Evidence Act, 1872 provides that 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 other circumstances of the case that such suicide had been abetted by her husband or by such relative of her husband. It further provides that for the purposes of this Section (113A) ‘cruelty’ shall have same meaning as in Section 498A of I.P.C.. Section 498A of I.P.C. in its explanation, defines world ‘cruelty’. It provides that any willful conduct which is of such nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman or harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand, shall be cruelty. (6) We think it just and proper now to mention here the ante mortem injures found on the death body of deceased by Dr. Hemant Bhardwaj (P.W.4), who conducted the postmortem examination along with Dr. J.S. Bisht and prepared autopsy report (Ext.A-9). The ante mortem injuries are being reproduced below:- “Incomplete ligature mark of 29x1cm present around neck, passing interiorly above the adams apple and incomplete over it. Side of neck. Skin of ligature mark is brownish and hard parchment like. On its dissection petechial haemorrhages are present below and around. Hyoid bone shows fracture of right great cornu with distal fragment directed towards right side of neck also shows a reddish brown contusion of 2cm x 1cm above the site of fracture.” On internal examination, he found larynx and bronchi congested, lungs congested. One examination of the generation of organs, it was found that uterus shows well-developed male foetus of 13cm. length with well-formed placenta with probable age of 3-4 months. The two Medical Officers in their autopsy report opined that cause of death was asphyxia as a result of manual strangulation. (7) The above medical evidence clearly establishes that the deceased has died homicidal and unnatural death. Now the question for determination before this Court is whether the accused / appellant Mohd. Shahid subjected his wife (deceased) to cruelty and harassed her before her death for non-fulfillment of demand of dowry or not. This Court has also to see whether appellant no. 2 Rashid Ahmed (father-in-law of the deceased) demanded dowry, the act punishable under Section 4 of Dowry Prohibition Act, 1961. (8) P.W.1 Liyakat, complainant (uncle of the deceased) has stated that Saima (deceased) was daughter of his elder brother. The witness further states that his elder brother (father of the deceased) died in the year 2002. Whereafter, she started living with her aunt (FUFI / BUA) Shakila Begum (P.W.2). P.W.1 Liyakat Khan further states that he and his sister Shakila Begum arranged marriage of Saima with accused Mohd. Shahid alias Shabbu and marriage took place on 30.11.2003. According to this witness Rs.31,000/- were given a day before the marriage and Rs.20,000/- were given on the day of CHAUTHI. This witness further states that after marriage whenever deceased came to them (uncle and aunt) she used to complain that accused Shahid (husband), Rashid Ahmed (father-in-law), Shanno (mother-in-law) and Javed (brother-in- law) used to say what she has brought from her house. The witness states that the deceased used to tell him that accused were not happy with the dowry given to them. P.W.1 Liyakat has stated that when she came last to his house she refused to go back to her husband’s house. When Mohd. Shahid came to take her back, according to the witness, he insisted that the elders of the family should come and settle the matter. The witness further states that thereafter Shahid came along with elders of his family and all of them agreed that they would not cause any harassment to the deceased. On their promise deceased was sent back with her husband. However, on 10th March 2004, a telephonic call was received that Saima has died. The witness states that on the very day he lodged the First Information Report (Ext.A-1) with the Police. He further proves the inquest report (Ext.A-2) prepared before him after the dead body of Saima was sealed. P.W.1 Liyakat has also proved Nikahnama (marriage deed), which is Ext.A-4 on the record. He has also proved note written by deceased (Ext.A-5) by stating that he is acquainted with the writing of Saima and identifies her handwriting. (9) P.W.2 Shakila Begum has corroborated the prosecution story as narrated by P.W.1 Liyakat Khan. This witness has stated that mother and father of deceased had already died before her marriage. The witness has also stated that after marriage of Saima with accused Shahid alias Shabbu on 30th November 2003, the accused Shahid (Husband), father-in-law, mother-in- law and brother-in-law of deceased were not happy with the dowry given in the marriage. She has specifically stated that the accused / appellant Shahid used to demand money. Saima told her (P.W.2) that she (deceased) has asked to bring money and as her husband needs the same for running the business. It is further stated by her (P.W.2) that the deceased told her that Shahid has demanded money by saying that he is not bothered even if the money is earned and brought by doing prostitution. On this, P.W.2 Shakila Begum, aunt of the deceased states that in the above circumstances she stopped Saima from going to her in-laws house. However, on 16th February 2004 accused Shahid and his parents took back the deceased. On 10th March 2004, at about 5.30 A.M. in the morning she got a call from some unknown person that Saima has died. On this, according to the witness she went to the house of Saima and found that she was hanging from a fan. Lastly she has stated that for non-fulfillment of demand of dowry the accused used to beat the deceased. (10) As far as harassment and cruelty for non-fulfillment of demand of dowry is concerned, the trial court has rightly taken note of the fact that father-in-law (Rashid Ahmed), mother-in- law (Shanno) and brother-in-law (Javed) used to live in Delhi while deceased used to live with the her husband Shahid in Dehradun, where she died. We agree with the trial court that since father-in-law, mother-in-law and brother-in-law were not living with the deceased as such the evidence of P.W.1 Liyakat Khan and that of P.W.2 Shakila Begum to the extent that the three committed cruelty or harassed the deceased cannot be believed beyond reasonable doubt. As such the acquittal of the three (Rashid Ahmed, Shanno and Javed) from the charge of offences punishable under Sections 498A and 304B I.P.C. suffers from no illegality. Accused / appellant no. 2 Rashid Ahmed has been convicted by the trial court on the charge of offence punishable under Section 4 of Dowry Prohibition Act, 1961, as it was found proved that he did accept 31,000/- a day before marriage, but in our opinion the conviction of appellant no. 2 Rashid Ahmed cannot be sustained as mere acceptance of Rs.31,000- before marriage without any demand does not fulfill the ingredients of offence punishable under Section 4 of the Dowry Prohibition Act, 1961. For constituting an offence punishable under Section 4 of said Act, it is necessary to prove that the person who is liable to be convicted under Section 4 of Dowry Prohibition Act, 1961, has made a demand of dowry. There is not a single word in the evidence of the witnesses examined that Rs.31,000/- were accepted by Rashid Ahmed in fulfillment of any demand made by him. As such, we are of the view that conviction of appellant no. 2 Rashid Ahmed on charge of offence punishable under Section 4 of Dowry Prohibition Act, 1961, is erroneous in law and appellant no. 2 is entitled to be acquitted on said charge also. (11) As far as appellant no. 1 Mohd. Shahid alias Shabbu is concerned as against him there is clinching evidence on record which proves that he treated the deceased with cruelty for non- fulfillment of demand of dowry. P.W.1 Liyakat, uncle of the deceased and P.W.2 Shakila Begum, aunt of the deceased have given natural narration of facts after they got the deceased married with the accused / appellant Mohd. Shahid. They have also stated not only the deceased used to tell about the harassment meted to her and cruelty committed against her but they have further stated that in the circumstances they had to stop the deceased after she came from her husband’s house to go there. But, according to the witnesses after the elders of accused / appellant Mohd. Shahid promised that no cruelty would be committed against the deceased, before she was permitted to go with her husband. It is pertinent to mention here that from the evidence on record it is clearly proved that deceased (Saima) was living with her husband Mohd. Shahid at Dehradun. Other relatives of Mohd. Shahid used to live in Delhi. As such whatever cruelty is committed that was only on the part of the accused / appellant Mohd. Shahid with whom his wife (deceased) was staying. The medical evidence on record as mentioned above discloses that the deceased had 3-4 months pregnancy at the time of her death. It is clearly proved from the postmortem examination (Ext.A-9) that she died homicidal death and not the natural death. Therefore, in view of the provisions contained in Sections 498A and 304B I.P.C. read with Section 113A of Indian Evidence Act, 1872, from the evidence on record it is clearly established that Mohd. Shahid has treated the deceased with cruelty and committed the dowry death. (12) On behalf of appellant no. 1, it is argued that the cruelty must be proved soon before the death and there must be proximity between the cruelty and the death. On perusal of evidence on record we find there is proximity between death of deceased and cruelty committed against her. As such the principle of law laid down in Kans Raj Vs. State of Punjab and others (2000) 5 Supreme Court Cases 207 and Balwant Singh and another Vs. State of Punjab (2004) 7 Supreme Court Cases 724, are of no help to the appellant. Had there been a case of marriage of more than one year old, we could have appreciated the argument of learned counsel for the appellant on this point, but in the present case it is pertinent to mention that marriage has taken place on 30.11.2003. After the deceased went back from her husband’s house to her aunt’s house she was taken back from there by accused Mohd. Shahid on 16.02.2004 and within one month thereafter, death has occurred on 10.03.2004, as such between the marriage and the death hardly less than four months had passed. As it is evident there is no long gap between the period of cruelty and the date of death. (13) It is also argued on behalf of the appellant no. 1 that the chain of circumstances established by the prosecution is not complete and the conviction of appellant no. 1 recorded by the trail court is erroneous in law. We do not see any force in the contention advanced on behalf of appellant no. 1 for the reason that the evidence in a case of ‘dowry death’ is to be appreciated in the light of provisions of Sections 498A and 304B I.P.C. read with Section 113A of Indian Evidence Act, 1872. The factum of marriage of appellant no. 1 Mohd. Shahid alias Shabbu with deceased (Saima) is an admitted fact. It is also established on record that the deceased had died in Dehradun in the house of her husband where no-one else except her husband was living with her. In the circumstances whatever evidence has been adduced by P.W.1 Liyakat and P.W.2 Shakila Begum is to be appreciated on that background. Appellant no. 1 Mohd. Shahid (husband of the deceased) in a case of dowry death like the present one should have come with his version that how his wife had died homicidal death. We have gone through the statement of D.W.1 Sirajuddin, who has stated that at the time of marriage there had been no demand of dowry. He had further stated that deceased never disclosed his daughter that she was unhappy with the treatment given to her by her in-laws. But this witness cannot be believed as he is resident of Bhazanpura, Delhi, and the deceased was living with her husband in Dehradun. His evidence that what the deceased had told to his daughter is hearsay evidence and cannot be said to be admissible in evidence. (14) It is also submitted on behalf of appellant no. 1 that there is no mention of specific demand in the First Information Report and on the vague allegations it cannot be said that the deceased was subjected to cruelty for non-fulfillment of demand of dowry. We do not find much substance in the submission of learned counsel for the appellant no. 1 for the reason that there is specific mention in the First Information Report that day in any day out there used to be demand of money as told by the deceased to her uncle and aunt. P.W.2 Shakila Begum with whom deceased lived after death of her parents and used to go from her husband’s house has clearly stated that deceased (Saima) told her that accused used to ask her to bring money and he (husband) was not concerned even if that is earned and brought by doing prostitution. (15) Lastly, it is contended on behalf of appellant no. 1 that no complaints were made to police earlier by complainant or the aunt of the deceased or the deceased by herself that she was harassed for demand of dowry. In this connection our attention is also drawn to the case of Prem Singh Vs. Amarjit Singh AIR 1997 Supreme Court 221. We have gone through said case law and we find that the facts of said case are different to the present one. In