IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No.1549/2001 (Old No.1465/1997) Isam Singh and two others …. Appellants. Versus State .. Respondent. Mr. S.K. Agarwal, Senior Advocate assisted by Mr. Navneet Kaushik, Advocate for the appellants. Mr. S.S. Adhikari, learned A.G.A. for the State. Coram: Hon’ble B.C. Kandpal, J. Hon’ble Nirmal Yadav, J. [Per: Hon’ble B.C. Kandpal, J.] This appeal under Section 374 Cr.P.C. arises out against the judgment and order dated 6- 8-1997, passed by District and Sessions Judge, Haridwar, in S.T. No. 9/1993, State vs. Isam Singh and two others, whereby accused/appellants Isam Singh, Harpal and Harnand were convicted for an offence U/S 304-B I.P.C. and ¾ Dowry Prohibition Act and each of them were sentenced to undergo Life Imprisonment U/S 304-B I.P.C. and two years R.I. U/S ¾ Dowry Prohibition Act. 2 2- Brief facts of the prosecution case, are that on 11.8.1992 at about 9.20 P.M. Atar Singh lodged a written report at Police Out Post Buggawala, P.S. Ranipur, with the allegations that his daughter Rani Devi was married with Isam Singh two years back in accordance with Hindu rites. The complainant had given dowry in the marriage of his daughter but husband Isam Singh, Jeth Harpal and father-in-law Harnand were not satisfied with it, hence they started ill-treating the bride in lieu of dowry. They often made their unlawful demand of dowry. It is further mentioned in the F.I.R. that after about 1 ¼ years of marriage, these persons came to the house of complainant along with the bride and told him that T.V. and sewing machine are not given in dowry and if these articles are not given, they will not keep his daughter at their house. When the demand of dowry was made, Chandra Veer S/o Chait Ram and Om Pal S/o Molhu Singh of the village were also sitting at the house of the complainant. The complainant showed his inability and they left the house of the complainant. Prior 20-25 days of the incident the husband, father-in-law and Jeth of the bride Smt. Rani Devi also reached at the house of 3 the complainant along with their relatives and tendered their apology. Thereafter the complainant sent his daughter to her in-law’s house along with her husband, father-in-law and jeth. On 9-8-1992 in the night the complainant received information about the death of his daughter. At this in the next morning village pradhan Chait Ram, and other villagers, Nathi Ram, Sant Ram, Ailem Chand etc. went to Buggawala and saw that the dead body of the deceased was being carried for postmortem by the police. These persons also accompanied the dead body upto the Hospital and after performing the post mortem they cremated the dead body. The complainant also alleged that his daughter was killed by Isam Singh, Harpal and Harnand by administering her some poisonous substance. 3- On the basis of written report, Ext. Ka.1, chick F.I.R. Ext. Ka.7 was prepared at the Police Out Post Buggawala and a case crime No. 24/1992, U/Ss 304-B I.P.C. and ¾ Dowry Prohibition Act was registered against the accused Isham Singh, Harpal and Harnand at report No. 20 at 21.20 hours on 11.8.1992, carbon copy of which is Ext. Ka.8. The police conducted inquest on the dead body and 4 prepared inquest report, Ext. Ka.3. Thereafter the police prepared Challan Laas, Ext. Ka.4, Photo Laas, Ext. Ka.5, letter to C.M.O., Ext. Ka.6 and sent the dead body for post mortem. 4- The autopsy on the dead body of the deceased Smt. Rani was conducted by Dr. K.P. Sarabhai, in E.M.O. District Hospital, Haridwar on 9.8.1992 at about 3.45 P.M. The Medical Officer found that both the eyes and mouth of the deceased were closed. Rigor mortis in both upper and lower limbs was passed away. The doctor could not ascertain the cause of death, hence he preserved viscera and other parts of organs of the deceased for chemical examination. The doctor prepared post mortem report, Ext. Ka.2. 5- The investigation of the incident was entrusted to S.O. Surendra Singh Chauhan. He took the statements of witnesses, visited the place of occurrence and prepared site-plan, Ext. Ka.10. After completing the investigation the I.O. submitted charge sheet, Ext. Ka.11 against the accused persons. 5 6- The Chemical Examiner found aluminum phosphide poison in the pieces of stomach, intestine, liver, kidney and spleen of the deceased vide chemical examiner’s report Ext. Ka.13. 7- The C.J.M. Haridwar, vide his order dated 5-1-1993, committed the case to the court of Sessions for trial. 8- The learned Sessions Judge, Haridwar, framed charges U/Ss 304-B I.P.C. and ¾ Dowry Prohibiton Act, against the accused persons, who pleaded not guilty and claimed to be tried. 9- Thereafter the prosecution in order to bring home the guilt of the accused, examined P.W.1, Atar Singh, P.W.2, Smt. Naurati Devi, P.W.3, Ashok Kumar, P.W.4, Chandra Veer, P.W.5, Dr. K.P. Sarabhai, P.W.6, Kanaya, P.W.7, Constable Indra Pal Singh, P.W.8, S.I. R.P. Pal, P.W.9, C.O. Sri Surendra Singh Chauhan, and P.W.10, Constable Baleshwar Tyagi. 10- The accused persons in their statement U/S 313 Cr.P.C. denied the prosecution case and 6 alleged that they have been falsely implicated in the case. Accused Harpal alleged that he lives separately from Isam Singh and he has no concern with the demand of dowry. Accused also examined Janeshwar as D.W.1 in their defence. 11- The trial court after hearing learned counsel for the parties and considering the entire material available on record, came to the conclusion that the prosecution has been able to establish its case against the accused persons U/S 304-B I.P.C. and ¾ Dowry Prohibition Act and sentenced each of them to undergo Life Imprisonment U/S 304-B I.P.C. and two years R.I. U/S ¾ Dowry Prohibition Act. 12- Feeling aggrieved, the accused preferred this appeal. 13- At the outset it is to be noted here that during the pendency of appeal, accused/appellant Harnand has died, hence the appeal on behalf of Harnand stood abated vide court’s order dated 15- 2-2010. 7 14- We have heard Sri S.K. Agarwal, learned Senior Advocate assisted by Mr. Navneet Kaushik, learned counsel for the appellants and Sri S.S. Adhikari, learned A.G.A. for the State and perused the record. 15- Learned counsel for the appellants has submitted that according to prosecution witnesses the accused persons have demanded T.V. and sewing machine in the dowry, but this version of these witnesses is untrue, as it has come in the evidence that there was no electricity in the house of the accused persons and these items were worthless to them. Learned counsel also submitted that the witnesses of fact are either family members or close relations of the complainant, and no reliance can be placed on their testimony, as they have given a unrealistic statement pertaining to unlawful demand of T.V. and sewing machine as dowry. 16- We do not find any force in the above submission of learned counsel for the appellants. The prosecution has examined P.W.1, Atar Singh, 8 father of deceased, P.W.2, Smt. Naurti, mother of deceased, P.W.3, Ashok Kumar, brother of deceased, P.W.4, Chandra Veer, and P.W.6, Kanaya, brother in law of Atar Singh, as witnesses of fact. Out of these witnesses, P.W.2, Smt. Naurti, P.W.3, Ashok Kumar and P.W.6, Kanaya are family members and close relations of the complainant P.W.1, Atar Singh, but the testimony of these witnesses cannot be discarded for the only reason that they are family members and close relations of the complainant. It is well settled principle of law that the conviction of the accused can be recorded on the testimony of close relations if the same is found cogent and natural and their testimony cannot be discarded merely due to the reason that the witness belong to the family of complainant or they have close acquaintance with the complainant. All these witnesses have deposed that marriage of deceased Smt. Rani was performed with accused Isam Singh about three years prior to the incident. The accused persons were not satisfied with the dowry given by father of deceased at the time of the marriage and for this reason accused persons used to abuse and to do marpit with the deceased. It has come in the deposition of P.W.1, Atar Singh that 9 after about 1 ¼ years of the marriage, deceased gave birth to a child and the allegation of the accused was that that child was born with illicit relations of Smt. Rani with some other person and for this reason also accused person harassed her and turned her out after doing marpit with her. At this some village people collected and on their insistence accused persons became ready to keep the deceases at their house. Then after about four months accused persons came to his house along with the deceased and told him until T.V. and sewing machine is not given to them they will not permit the deceased to reside at their house. At that time Om Pal and Chandra Veer were also present. He showed his inability to fulfill their demand of dowry, hence the accused persons left the deceased at the complainant’s house and went to their home. This witness further deposed that after three months he along with Kanaya went to the house of the accused and they made to understand the accused but they did not agree to it. Hence he filed case against the accused pertaining to their unlawful demand of dowry in the court at Saharanpur. The accused came to know about the filing of case against them and they came to his 10 house along with their relatives, tendered apology and requested for withdrawal of the criminal case against them. Thereafter the complainant sent the deceased with the accused. After 25 days he came to know that his daughter had died. At this he, Chait Ram, Nathi Ram, Sant Ram, Ailam Chand and other village people went to Buggawala where he saw that police personnel were carrying the dead body of his daughter for post mortem. They also accompanied the dead body of the deceased upto the Hospital and they performed the last rites of the deceased. He also deposed that no one from inlaws side had come to participate in the cremation ceremony. Thereafter he got prepared the written report from a petition writer and lodged it with the police. This witness further deposed that his daughter was hale and hearty and she had no disease at the time of her death. This witness has been cross-examined at a great length but nothing immaterial has come in light which may immensely affect the credibility of his deposition. In our opinion this witness has deposed a true version about the unlawful demand of dowry by accused Isam Singh, husband of the deceased, Harpal, Jeth of deceased and Harnand, father-in-law of the deceased. 11 17- P.W.2, Smt. Naurti Devi mother of the deceased also deposed that accused persons used to illtreat the deceased and they made a demand of T.V. and sewing machine. This witness has fully corroborated P.W.1, Atar Singh on other counts also. The deposition of this witness is also fully reliable. 18- The another witness of fact is P.W.3, Ashok Kumar. He is son of complainant Atar Singh. This witness has deposed that three years prior to the incident deceased Rani was married with Isam Singh. After marriage her husband, Jeth and father- in-law used to ill-treat the deceased for not fulfilling their unlawful dowry demand of T.V. and sewing machine. This witness also deposed that the information of death of his sister was received by them through the police. 19- P.W.4, Chandra Veer is also witness of fact. He has deposed that he knew deceased Rani and the accused persons. Marriage of Rani was performed with accused Isam Singh five years ago. Rani had died about two years ago. He also deposed 12 that after about 1 ¼ years of the marriage, Isam Singh, Harpal and Harnand had come at the house of Atar Singh along with Rani and there they demanded T.V. and sewing machine from her father. He and Om Pal were also sitting there. The accused had informed Atar Singh that they will carry Smt. Rani with them only when he would fulfill their demand of dowry. As Atar Singh showed his inability to fulfill their demand, the accused became annoyed and went away from the house of Atar Singh. He further deposed that the accused used to treat her with cruelty for not fulfilling their demand of dowry. In the cross-examination this witness has deposed that Atar Singh is his uncle in village relation. He is an independent witness and no reason has been assigned to this witness by the accused as to why he would have falsely deposed against them. This witness has fully supported the factum of unlawful demand of the accused of T.V. and sewing machine. 20- The another witness of fact is P.W.6, Kanaya. He has stated on oath that Atar Singh is his brother-in-law. According to him marriage of the deceased was performed about 5 – 5 ½ years ago 13 and about 2 ½ years later Atar Singh had come to him and told that Isam Singh, Harpal and Harnand are making a demand of T.V. and sewing machine and are telling if the demand is not fulfilled they will not keep his daughter at their house. He also tried to make understand the accused but they did not pay any heed to his request. Thereafter Atar Singh filed a criminal case against the accused persons in Saharanpur and due to the pressure of that criminal case accused came to the house of Atar Singh and carried the daughter of Atar Singh at their house. After some days the accused committed her murder by administering some poisonous substance to her. Therefore, from the depositions of above witnesses, examined by the prosecution it is clearly established that accused persons made a demand of T.V. and sewing machine from the father of the deceased and they often ill-treated her for not fulfilling the demand. When Atar Singh showed his inability to fulfill their unlawful demand, the accused persons committed the dowry death of the deceased Smt. Rani by administering her poison. 14 21- This submission of learned counsel for the appellants also carries no force that as there was no electricity in the house of the accused/appellants, therefore, dowry demand of T.V. and sewing machine from the accused side was not possible. The specific defence of non- availability of electricity at the house of accused has not been taken by the accused and this factum has not been established by cogent and reliable evidence. Generally, in the marriages, T.V., Fridge, Sewing Machines etc articles are given from the side of bride. Therefore, it cannot be said that unlawful demand of T.V. and sewing machine could not have been made by the accused/appellants from the father of the deceased, particularly in view of the cogent and reliable statements of witnesses of fact, who have consistently deposed that all the accused persons made unlawful demand of T.V. and sewing machine from the parents of the deceased. 22- Learned counsel for the appellants also contended that ingredients of Section 304-B I.P.C. are not attracted in the case as the prosecution has not been able to prove that soon before the death of the deceased, she was subjected to any cruelty and 15 this factum is apparent from the post mortem report, in which the doctor did not find any injury on the body of the deceased. 23- The argument has also no force. As stated in the earlier part of the judgment that the prosecution witnesses P.W.1, Atar Singh, P.W.2, Smt. Naurti Devi, P.W.3, Ashok Kumar and P.W.4, Chandra Veer have specifically deposed that the accused had demanded T.V. and sewing machine in dowry and when the father of the deceased showed his inability in fulfilling their unlawful demand, they did not permit the deceased to live at their house and they left her at her father’s house. When the complainant filed a criminal case against the accused persons, then they went at his house and carried the deceased with them and after about 20- 25 days Smt. Rani was murdered by administering her poison at her inlaw’s house. Therefore, from the evidence available on record it is well established that the unlawful demand of T.V. and sewing machine was made by the accused persons after the marriage and their demand subsisted till the death of the deceased; she was treated with cruelty soon before her death and she has died within seven 16 years of her marriage. It is true that the doctor did not find any injury on the body of the deceased but the injury was not possible on the body of the deceased, due to the reason that she had died due to administering her poison by the accused. Therefore, the death of the deceased comes within the category of dowry death. The provisions of Section ¾ Dowry Prohibition Act are also attracted in the instant case and the learned trial court has rightly convicted and sentenced the accused U/S 304-B I.P.C. and ¾ Dowry Prohibition Act. 24- Leaned counsel for the appellants also raised the submission that accused/appellant Harpal, Jeth of the deceased was living separately from accused Isam Singh and he had no concern with the demand of dowry, hence he is liable to be acquitted. 25- We do not find any force in the above submission also. Accused/appellant Harpal is the elder son of Harnand. The death of the deceased has occurred on 9-8-1992 in the night at the house of the accused. The Ration Car filed by accused Harpal is paper No. 54-Kha, which shows that 17 entries in this Ration Card have been made from the year 1993 and this itself shows that this Ration Card has been prepared after the death of Smt. Rani and the accused can not get any benefit of the said Ration Card. No cogent and reliable evidence has been adduced by the accused in order to show that he was living separately with the accused Isam Singh at the time of incident and he had no concern with demand of dowry. Further, the witnesses of fact examined by the prosecution have clearly deposed the name of Harpal in making the unlawful demand of T.V. and sewing machine along with other two accused. Hence it is quite clear that accused Harpal was also responsible for ill-treating the deceased for not fulfilling the unlawful demand of T.V. and sewing machine and he is equally liable for committing the dowry death of the deceased. 26- It is also mentioned here that it is the admitted case of the defence that the deceased was not suffering from any disease and she was hale and hearty. Her death was caused by administering her aluminum phosphide poison when she was residing at her inlaw’s house. The report of chemical examiner Ext. Ka.13 clearly shows that 18 aluminum phosphide poison was found in the pieces of stomach, intestine, liver, kidney and spleen of the deceased, which were sent for examination. It has also come in evidence that the accused persons did not inform the complainant side about the death of the deceased, but the police had informed the parents of the deceased about her death. This fact also shows the guilty conscience of the accused/appellants. 27- In view of above discussion, we find ourselves in full agreement with the conclusion drawn by the learned trial Court and the findings recorded by it do not require any interference. 28- The appeal lacks merit and is liable to be dismissed. 29- Accordingly the appeal is dismissed. The judgment and order of conviction and sentence U/S 304-B I.P.C. and ¾ Dowry Prohibition Act, passed by learned Sessions Judge is hereby confirmed. 30- The accused/appellants Isam Singh and Harpal are on bail. Their bails are cancelled and 19 sureties discharged. They be taken into custody forthwith in order to serve out the sentence passed against them. 31- The appeal filed on behalf of accused/appellant Harnand, already stood abated due to his death. 32- Let the record be transmitted to the trial court for compliance. (Nirmal Yadav, J.) (B.C. Kandpal, J.) Dated: May 19, 2010. ISB 20