RESERVED JUDGEMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 1401 of 2001 (Old No. 372 of 1998) Naresh & Others .…. Appellants/Accused Versus State …………… Respondent August 2, 2010 Mr. Pramod Tiwari, Advocate holding brief of Mr. Rajendra Singh, Advocate for the appellants. Mr. Prabhakar Joshi, Brief Holder for the State/respondent. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellants u/s 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the judgment and order dated 23.2.1998 passed by the Additional Sessions Judge, Roorkee in Sessions Trial No. 188 of 1995, State v. Naresh & Ors., whereby each of the accused appellants, viz., Naresh, Kalwa, Smt. Bimla, Suresh and Smt. Sommi have been convicted under Section 498-A, 304-B and 201 of Indian Penal Code, 1860 (for short, IPC) and each of them has been sentenced to R.I. for 3 years along with fine of Rs. 500/- each u/s 498A IPC, in default to undergo two months additional R.I., 10 years R.I. u/s 304-B IPC and 2 years R.I. along with fine of Rs. 500/- each, in default to undergo two months additional R.I. u/s 201 IPC. All the sentences have been directed to run concurrently. However, co-accused Rupa died during the period of trial and hence, trial against her was abated by the trial court vide order dated 22.1.1998. 2. The prosecution case, in brief, is that PW1 Rampal lodged an FIR in PS Bhagwanpur on 30.1.1995 at 4.10 pm with the averments that his daughter Mamtesh (now deceased) was married with Naresh on 20.5.1994 as per Hindu rites. In the marriage he has spent Rs. 50,000/-. After some days, in-laws of Mamtesh have started to demand cash money in dowry and have also started to harass Mamtesh physically and mentally and have also started to beat her. This fact was disclosed by Mamtesh to him when she has come to his house. The complainant and his other family members have tried to convince her in-laws that complainant is a poor man and he is unable to pay the cash money. After some days on 23.1.1995 appellant accused Naresh has come to his house and demanded Rs. 15,000/- in dowry. He has stated that he is unable to pay the amount. Next day morning on 24.1.1995, maternal grandmother (nani) of Naresh has come along with his daughter Mamtesh in his house and she has also demanded Rs. 15,000/- in dowry and Mamtesh has also told him in weeping condition that her husband Naresh, father-in-law Kalwa, brother-in-law Suresh, grandfather Rupa, mother-in-law Bimla and maternal grandmother (nani) have threatened her to kill her and also tortured her physically and mentally and maternal grandmother (nani) has come along with her for the money. After hearing the cries of his daughter, the neighbourers, namely, Buchha S/o Baru, Babu (PW3), Piru and Buchha S/o Govind etc. have come there and convinced them and thereafter on 25.1.1995 Naresh and Smt. Sommi, maternal grandmother of Naresh have taken Mamtesh along with them. On 28.1.1995 in the evening Rupa, the grandfather of Naresh has come to his village and has told him that his daughter is seriously ill and asked him to go with them. At that time, he has gone along with co-accused Rupa (trial against whom was abated by the trial court) and reached in his village Choli at about 8 pm. Then he has tried to meet his daughter but the in-laws of his daughter has not given him any information. Some people of the village have informed him that his daughter was murdered on 27.1.1995 and was 2 cremated on the same night. He has further stated that appellants accused have not given information of death of his daughter to him and due to non-fulfillment of demand of dowry his daughter was murdered by the appellants accused. 3. With the aforesaid averments, FIR Ex. Ka-1 was lodged, on the basis of which chick FIR Ex. Ka-2 was prepared by Constable Clerk Jaiprakash, who also made the necessary entry in the GD. Copy of GD is Ex. Ka-3. Investigation of this case initially done by PW5 SI Atar Singh Rathi, who during the course of investigation inspected the place of occurrence and prepared the site plan Ex. Ka-4 where the deceased was living at the time of her death along with the appellants accused. He has also taken the ashes from the cremation yard where Mamtesh was cremated and prepared fard Ex. Ka-5. The I.O. also prepared the map of cremation yard where Mamtesh was cremated, that is Ex. Ka-6. Thereafter the investigation was transferred to PW4 Arvind Sen, Circle Officer, Roorkee, who recorded the statements of the witnesses and after completing the investigation, filed a chargesheet Ex. Ka-7 against the accused appellants and co-accused Rupa (trail against whom was abated by the trial court). 4. Learned Addl. Civil Judge/ACJM, Roorkee after giving the necessary copies of the documents to the accused appellants as prescribed under Section 207 Cr.P.C., committed the case to the Court of Sessions on 29.6.1995. Thereafter the case was transferred to Additional Sessions Judge, Roorkee for its disposal according to law. 5. On 26.8.1995, learned Additional Sessions Judge, Roorkee framed the charges against each of the accused 3 appellants and the co-accused Rupa (trial against whom was abated) under Section 304-B, Section 498-A and Section 201 IPC. The charges were read over and explained to each of them, who pleaded not guilty and claimed to be tried. 6. To prove its case, prosecution has examined PW1 Rampal, complainant and father of the deceased; PW2 Sher Singh; PW3 Babu Ram; PW4 Arvind Sen, Circle Officer and the I.O. of the case and PW5 SI Atar Singh Rathi, who initially done the investigation. 7. Thereafter, statements of each of the accused appellants and the co-accused Rupa (trial against whom was abated) were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to them in question form, who denied the allegations made against them and stated that they have been falsely implicated in the case. However, in defence, they did not produce any documentary evidence. But two witnesses, viz., Atar Singh and Dr. HP Singh were examined in defence as DW1 and DW2 respectively. SI Rakam Singh was examined as court witness. 8. After hearing learned counsel for the parties and appreciating the evidence on record, the learned Additional Sessions Judge, Roorkee vide his judgment and order dated 23.2.1998 convicted and sentenced to each of the accused appellants as discussed above. Against the aforesaid judgment and order dated 23.2.1998, the present appeal has been preferred. 9. To prove its case, the prosecution has examined PW1 Rampal, the complainant and the father of the deceased, who has reiterated the version as stated in the FIR and 4 has proved it as Ex. Ka-1. He has further stated that he has come back from village Choli to his village on 29.1.1995 and as the visitors were too many in the house on 29.1.1995, therefore, he could not lodge the report in the police station on the same day and lodged it on the next day on 30.1.1995. This witness was cross-examined at length by the defence counsel but nothing has come out in testimony which may create any doubt about his deposition. 10. PW2 Sher Singh is the brother of the deceased Mamtesh, who has also supported the evidence of PW1 Rampal. 11. PW3 Babu Ram has stated in his statement recorded on 16.7.1996 that he is the resident of village of complainant Rampal and his house is nearby to the house of Rampal. Mamtesh was married to Naresh, who is resident of village Choli. He has further stated about one and half year before Mamtesh and Naresh have come in the house of PW1 Rampal. At about 5.30 pm, he heard noise then he went to the house of PW1 Rampal. Then he saw that Mamtesh was weeping and was saying that her in-laws were demanding Rs. 15,000/- in dowry and she was also saying that if Rs. 15,000/- was not given to them, then they would kill her. Accused appellants Sommi and Naresh were also demanding Rs. 15,000/- in dowry. On this Rampal has stated that he is a poor man and he has got no money. Thereafter he has convinced accused appellants Sommi and Naresh and thereafter they had taken Mamtesh along with them. Thereafter three days co-accused Rupa (trial against whom was abated by the trial court) has come and told PW1 Rampal that Mamtesh was seriously ill. Thereafter Rampal has gone to village Choli. Next day Rampal came 5 back and told that Mamtesh was murdered by her in-laws and she was killed to non-fulfillment of demand of dowry. Then the report was scribed by Vedpal and it was given in the police station. He has further stated that when Mamtesh was weeping she has also told that accused appellants has beaten her. This witness was cross- examined at length by the defence counsel but nothing has come in his statement which may create any doubt about his deposition. 12. PW4 Arvind Sen has stated that on 3.2.1995 he was posted as C.O., Roorkee and on that day he started the investigation of this case. He has further stated that he inspected the place of occurrence in village Choli. Nobody was present in the house of the place of occurrence. He has inspected the place of occurrence and also the place where the dead body was cremated. Prior to this, the earlier I.O. has prepared the site plans. During the course of investigation, he has recorded the statements of the witnesses. Thereafter by the order of the SSP, the investigation was transferred to SS Chauhan, C.O. 13. PW5 SI Atar Singh Rathi has stated that on 30.1.1995 he was posted as SI in PS Bhagwanpur. On that day, the case was registered on the report of PW1 Rampal against the accused appellants. The chick FIR Ex. Ka-2 was prepared by Constable Clerk Jaiprakash, who also made the necessary entry in the GD, copy of GD is Ex. Ka-3. Investigation of this case was entrusted to C.O., Roorkee. As per the order of the higher officers, he has gone on the place of occurrence and did the necessary proceedings. He has recorded the statement of the complainant and on his pointing out he has prepared the site plan Ex. Ka-4 of the place of occurrence. He has also gone on the place where the dead body was cremated and 6 has also taken the ashes from there and prepared the fard Ex. Ka-5. He has also prepared the site plan of the cremation yard Ex. Ka-6. Thereafter investigation was transferred to the Circle Officer, who submitted the chargesheet (Ex. Ka-7). 14. Thereafter, statements of each of the accused appellants and the co-accused Rupa (trial against whom was abated by the trial court) were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to them in question form, who denied the allegations made against them and stated that they have been falsely implicated in this case. However, in defence, they did not produce any documentary evidence. But two witnesses, viz., Atar Singh and Dr. HP Singh were examined in defence as DW1 and DW2 respectively. SI Rakam Singh was examined as court witness. 15. DW1 Atar Singh has stated that the accused appellants and the complainant were known to him and he was the mediator in the marriage of Naresh and Mamtesh. Mamtesh has died. Naresh, Mamtesh or the complainant has never told him anything about the demand of dowry. He has further stated that Mamtesh was ill and he has gone to call Rampal. When he and Rampal reached in the house of Naresh, Mamtesh was dead. He has also stated that PW1 Rampal was present in the cremation. On the third day, PW1 Rampal has also come. He has further stated that accused appellants have not killed Mamtesh. But in the cross-examination, he has stated that he has come for the evidence along with the accused appellants and they have taken him to the Advocate and he has further stated that lawyer of the accused appellants has taught him the statement and that statement he has given in the 7 court. Hence, the statement of this witness is not reliable, believable and it does not inspire the confidence. 16. DW2 Dr. HP Singh has stated that on 27.1.1995, he was posted at Primary Health Centre, Bhagwanpur and Mamtesh had come on that day and complained of severe chest pain and after the primary treatment she was referred to Roorkee Hospital. He could not diagnose the correct disease and that is why, she was referred to Civil Hospital, Roorkee. In the cross-examination, he has stated that the name and description of the patient in the register was not fulfilled by him and the treatment which was mentioned in front of the name of Mamtesh was not fulfilled by him. It was written by the Doctor, who was posted there at that time. This witness has further stated that he has only written “Refer to Civil Hospital, Roorkee”. There is no signature of the doctor also who had treated her. He has also admitted that except in the case of Mamtesh, in other cases no entry was made by the another doctor for the reference and the treatment was done by the another doctor. Thus, the statement of this witness is also not reliable, believable and it does not inspire the confidence. 17. Thereafter SI Rakam Singh was examined as court witness, who has only enquired about the death of co- accused Rupa and submitted a report that he died on 2.12.1997. 18. Learned Counsel for the accused appellants argued that on the basis of the evidence discussed above, the case against the accused appellants for the offence punishable u/s 304-B, 498-A and 201 IPC is not proved beyond reasonable doubt by the prosecution. 8 19. The accused appellants have been convicted u/s 304-B, 498-A and 201 IPC keeping in view the provisions of Section 113-B of the Indian Evidence Act and, therefore, before any further discussion, it would be appropriate to quote these sections for the sake of convenience and the same are reproduced 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. 498A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For the purpose of this section, “cruelty” means— (a) any willful conduct which is of such a 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 (b) 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 9 account of failure by her or any person related to her to meet such demand. 201. Causing disappearance of evidence of offence, or giving false information to screen offender.—Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false; if a capital offence.—shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; if punishable with imprisonment for life.— and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; if punishable with less than ten years’ imprisonment.—and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both. Section 113-B of The Indian Evidence Act: 113-B. Presumption as to dowry death—When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation.—For the purposes of this section, “dowry death”, shall have the same meaning as in section 304-B of the Indian Penal Code (45 of 1860).” 20. The evidence adduced on record has to satisfy the necessary ingredients provided under the aforesaid 10 sections of IPC for sustaining the conviction and in the aforementioned factual backdrop, I have to consider as to whether a case has been made out for conviction of the appellants under the aforesaid sections of IPC. 21. The essential ingredients for proving the offence under Section 304-B IPC are (i) death of a woman must have been caused by any burns or bodily injury or otherwise than under normal circumstances; (ii) such death must have occurred within seven years of marriage; (iii) soon before her death she was subjected to cruelty or harassment by her husband or relative of her husband; (iv) such cruelty or harassment must be in connection with the demand of dowry; and (v) such cruelty is shown to have been meted out to the woman soon before her death. 22. The significant words are “burns or bodily injury or otherwise than under normal circumstances”, “within seven years of marriage” and “soon before her death”. The main ingredient of Section 498-A IPC is also the act of cruelty by the husband or the relative of the husband of a woman. 23. Undisputedly, the deceased died within one year of her marriage and she did not die under normal circumstances. Now, in order to prove the offence against the appellants/accused u/s 304-B and 498-A IPC, it was, thus necessary for the prosecution to establish that soon before her death, the deceased must have been subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry. 11 24. So far as another condition of cruelty or harassment of the deceased soon before her death is concerned, it has come in the evidence of PW3 Babu Ram that Mamtesh and Naresh have come in the house of PW1 Rampal. At about 5.30 pm, he heard noise then he went to the house of PW1 Rampal. Then he saw that Mamtesh was weeping and was saying that her in-laws were demanding Rs. 15,000/- in dowry and she was also saying that if Rs. 15,000/- was not given to them, then they would kill her. Accused appellants Sommi and Naresh were also demanding Rs. 15,000/- in dowry. He has further stated that when Mamtesh was weeping, she has also told that accused appellants have beaten her. PW1 Rampal has also stated that the after the marriage, when Mamtesh come to his house, she had told him that she was being harassed by her in-laws for the demand of dowry as they were demanding Rs. 15,000/- and if their demand would not be fulfilled, they would kill her. These circumstances clearly indicates that deceased Mamtesh was subjected to cruelty and harassment soon before her death for the demand of dowry. 25. As such, demand of dowry and harassment is proved against the accused appellants who were harassing the deceased Mamtesh for Rs. 15,000/-. She was also beaten by them. Accused appellants Naresh and Sommi also came at the house of the complainant and demanded Rs. 15,000/- and when it was not fulfilled they had taken Mamtesh with themselves and after three days she died an unnatural death in abnormal circumstances. 26. The aforesaid conduct of accused appellants shows that the deceased was physically and mentally tortured by them for the demand of dowry which resulted in her death and she was subjected to cruelty and harassment soon 12 before her death. They did not immediately inform the parents or relatives of deceased and the dead body was cremated without informing the parents of the deceased. As such, accused appellants knowing that an offence has been committed, caused the evidence of the commission of that offence to disappear with the intention of screening themselves from the legal punishment which is an offence punishable under Section 201 IPC. In these facts and circumstances of the case, the learned trial court has rightly held it as a case of dowry death in view of the provisions contained under Section 113-B of the Indian Evidence Act. 27. In view of my foregoing discussion, offence u/s 304- B, 498-A, 201 IPC is proved against the accused appellants beyond reasonable doubt. As such, the impugned judgment and order of the trial court is correct and justified and it warrants no interference by this Court. 28. Learned Counsel for the appellants further submitted that the sentence of ten years’ RI under Section 304-B IPC awarded to the accused appellants by the trial court is very excessive in view of the fact that the case pertains to the year 1995 i.e. 15 years’ old and the appellants have got no previous criminal history and it was the first offence committed by them. He further submitted that appellants are illiterate and poor person and, therefore, some lenient view may be taken towards the sentence awarded to them by the trial court. 29. After considering the arguments advanced by learned Counsel for the appellants and the other facts and circumstances of the case, I deem it proper that ends of justice would be met if the sentence of ten years’ R.I. under Section 304-B IPC awarded to the accused 13 appellants is reduced to seven year’s RI. As such, the impugned judgment and order of the trial court is liable to be modified to this extent only. 30. In the result, the appeal is partly allowed. The conviction of the each of the accused appellants under Section 498A, 304B and 201 IPC is upheld and the sentence awarded to them to undergo R.I. for 3 years along with fine of Rs. 500/- each u/s 498A IPC, in default to undergo two months additional R.I. u/s 498-A IPC and 2 years R.I. along with fine of Rs. 500/- each, in default to undergo two months additional R.I. u/s 201 IPC is hereby affirmed. However, the sentence of ten years’ R.I. under Section 304-B IPC awarded to them is reduced to seven