IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 1126 of 2001 (Old No. 1793 of 1992) State of U.P. Versus ……Appellant. Suresh Kumar Sharma S/o Sri Keshav Ram 165 Bankhandi P.S. Rishikesh District Dehradun. .……….Respondent. Shri Harish Pujari, learned Additional Government Advocate for the appellant. Shri Vikram Dutt, learned Amicus Curiae for the respondent. Coram:Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. Oral:-Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 378 of Code of Criminal Procedure, 1973 (herein after referred as Cr.P.C.), is directed against the judgment and order dated 08.06.1992, passed by learned Additional Sessions Judge, Dehradun, in Sessions Trial No. 26 of 1991, whereby accused/respondent Suresh Kumar Sharma, is acquitted of the charge of offences punishable under Sections 498 A, 304 B and 302 of Indian Penal Code, 1860 (herein after referred as I.P.C.). 2. Heard learned counsel for the State/appellant and learned Amicus Curiae for the respondent and perused the lower court record. 2 3. Prosecution story in brief is that Sandhya (deceased) got married to Suresh Kumar Sharma (accused/respondent) about 6-7 years before her death. Sushila Sharma (P.W. 1), mother of the deceased has stated that adequate dowry was given in the marriage but the accused Suresh Kumar used to harass his wife (Sandhya) for non fulfilment of demand of dowry. It is further alleged that once he ousted Sandhya from his house but later, the matter was settled and Sandhya went back to her husband’s house. On that occasion when Sandhya came to her parental house, she told that her husband is demanding television. On 29.10.1990, the parents of the deceased (Sandhya) got information that she has been set on fire by accused Suresh Kumar, who had ran away with his five year old daughter. The First Information Report (Ext. A-1) was lodged on 29.10.1990, at about 7:10 a.m., with police station Rishikesh (District Dehradun). The deceased used to live in Rishikesh, and the parents of the deceased used to live in Haridwar. On the basis of the First Information Report, police registered crime No. 608 of 1990, against accused/respondent Suresh Kumar Sharma, relating to offences punishable under Sections 302 and 498 A I.P.C. and one punishable under Section ¾ Dowry Prohibition Act, 1961. Sudhakar Singh (P.W. 10) Circle Officer, Rishikesh, took up the investigation of the case. The dead body of the deceased was taken into custody by the police and inquest report (Ext. A-7) was prepared on 29.10.1990. The dead body was sent in a sealed condition for post mortem examination. On the very 3 day i.e. 29.10.1990, at 4:30 p.m., the post mortem examination was conducted by Dr. A. Nagaich along with Dr. V.K. Oli (P.W. 9), who prepared autopsy report (Ext. A-9). In the autopsy report, the team of doctors after recording the ante mortem burn injuries, opined that deceased has died of shock and suffocation due to ante mortem burn injury. After spot inspection, and interrogation of the witnesses, and on completion of investigation, the Investigating Officer submitted charge sheet (Ext. A-11) against accused Suresh Kumar Sharma, for his trial in respect of offences punishable under Sections 498 A, 304 B I.P.C. and one punishable under Section ¾ Dowry Prohibition Act, 1961. 4. On receipt of the charge sheet, the Magistrate appears to have committed the case to the Court of Sessions, for trial after giving necessary copies to the accused, as required under Section 207 Cr.P.C. Learned Sessions Judge, Dehradun, to whom the case was committed, transferred the case to the court of Additional Sessions Judge, Dehradun, for trial. On 01.07.1991, after hearing the parties, learned Additional Sessions Judge, Dehradun, framed charge of offences punishable under Sections 498 A, 304 B and one punishable under Section 302 I.P.C. against accused Suresh Kumar, who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Sushila Sharma (complainant and mother of the deceased), P.W. 2 Anil Kumar (brother of the deceased), P.W. 3 Om Prakash (tenant of the 4 accused), P.W. 4 Jayanti Prasad Sharma (father of the deceased), P.W. 5 Subhash Chandra (who has proved the inquest report (Ext. A-7) of the dead body), P.W. 6 Manmohan Sharma (another eye-witness of the inquest report), P.W. 7 Pummy Kumar Sharma (third eye-witness of the inquest report), P.W. 8 Suresh Chandra Verma (fourth eye-witness of the inquest report and also witness of recovery of kerosene oil canister from the place of incident), P.W. 9 Dr. V.K. Oli (one of the two doctors, who conducted post mortem examination), P.W. 10 Sudhakar Singh, Circle Officer (who investigated the crime), P.W. 11 Km. Shanti Sharma (who has supported that the deceased had complained that her husband demands dowry), P.W. 12 Geeta and P.W. 13 Constable Baldev Singh. The oral and documentary evidence was put to the accused, by the trial court in reply to which he alleged the same to be false. In defence, accused got himself examined as D.W. 1 (Suresh Kumar Sharma). The trial court after hearing the parties, found that the prosecution has failed to prove that the death of the deceased had taken place within seven years of the marriage and as such, Section 304 B is not attracted. It further found that the allegations of demand of dowry, and cruelty are not proved, as such, charge of offence punishable under Section 498 A I.P.C. is also not made out. Lastly, the trial court also found that there is no evidence on record proving that the accused has committed murder of his wife, as such, said charge is also not proved. Accordingly, the trial court acquitted the accused from the charge of 5 offences alleged against him. Aggrieved by said judgment and order dated 08.06.1992, passed by learned Additional Sessions Judge, Dehradun, in Sessions Trial No. 26 of 1991, State filed this appeal before Allahabad High Court on 19.09.1992, where leave was granted on 09.05.1996, and the appeal was admitted. The appeal is received by this Court by transfer under Section 35 of U.P. Reorganisation Act, 2000. 5. Before further discussions, it is pertinent to mention here the ante mortem injuries found on the dead body of the deceased by Dr. V.K. Oli (P.W. 9), who prepared autopsy report (Ext. A-9). The ante mortem injuries shown in autopsy report read as under:- 1. Line of redness present at the junction of burnt and un burnt area. 2. Sooty particles present in oesophagus and trachea and larynx and bronchi. The team of Medical Officers in the autopsy report (Ext. A-9) opined that the deceased (Sandhya) died of shock and suffocation due to ante mortem injuries. 6. The above injuries and the report given by the team of doctors, clearly show that the deceased had died unnatural death. This Court has to examine now whether the deceased was subjected to cruelty before her death and has her death taken place within seven 6 years of her marriage. In the First Information Report (Ext. A-1) only this much is mentioned that the marriage had taken place about 6-7 years before. P.W. 1 Sushila Sharma, who is mother of the deceased, in her examination in chief, states that marriage between the deceased and the accused took place in February 1984. The incident of death has occurred in the intervening night of 28-29 October 1990, as such, if the marriage has taken place in February 1984, certainly the death of deceased has taken place within seven years of her marriage. But defence has come with clear case that the marriage took place in February 1983 and not in February 1984. To contradict the evidence of P.W. 1 Sushila Sharma and that of P.W. 4 Jayanti Prasad Sharma (father of the deceased) that the marriage took place in 1984, D.W. 1 Suresh Kumar Sharma, has stated that marriage took place on 04.02.1983. The prosecution witnesses could not disclose the actual date of marriage. Sushila Sharma (P.W. 1) mother of the deceased is a literate lady, who is a teacher and should not have any difficulty in disclosing the date of marriage of her daughter. Jayanti Prasad Sharma (P.W. 4), father of the deceased also could not disclose the date of marriage of his daughter. During cross examination this witness was shown, the letters (Ext. B-1 and Ext. B-2), written by him to the accused Suresh Kumar. One of the letter, is dated 15.05.1983. The contents of said letter show that Jayanti Prasad Sharma (father of the deceased) has asked about the welfare of his daughter and son-in-law (accused) in 7 May 1983, which shows that marriage had actually taken place in the year 1983, as such, the death of the deceased in October 1990, cannot be said to be within seven years of her marriage. Therefore, we concur with the view taken by the trial court that the ingredients of the offence punishable under section 304 B I.P.C., are not made out against accused, as the death had not taken place within seven years of the marriage. 7. As far as the harassment for non fulfilment of demand of dowry, is concerned, from the evidence on record, it is clear that no complaint what so ever was made by the parents of the deceased to this effect for seven years. There are couple of letters, written by the deceased before her death to her parents, which are on record (Ext. A-3 and Ext. A-4). In both these letters, which has been relied by the prosecution, relate to the years 1984 and 1986, do show that the deceased had complained to her father that her husband used to beat her but there is no complaint of demand of dowry in the letters. Similarly, there is yet another letter of 1984, which is Ext. A-6 on the record that also shows that the deceased was not happy with the conditions in which she was living but she has nowhere complained that her husband used to demand dowry. In these circumstances, the view taken by the trial court that the prosecution has failed to prove harassment due to non fulfilment of demand of dowry appears to be correct and as such, charge of offence punishable under section 498 A I.P.C. is not proved, nor the 8 finding of trial court can be said to be erroneous in law. 8. As far as the offence punishable under Section 302 I.P.C. is concerned, there is no evidence on record, suggesting that the accused/respondent has committed the murder. On behalf of the defence, it has been suggested to the prosecution that Sandhya died of accidental fire. D.W. 1 Suresh Kumar Sharma (accused/respondent) has stated that on 29.10.1990, he had gone to Saharanpur to see his ailing aunt (Bua) along with his daughter Jyoti. He has further stated that due to illness Sandhya could not accompany him and when he came back on 29.10.1990, he found that Sandhya is not at her home. (As by then dead body has been taken by police for post mortem examination). 9. In the above circumstances, having considered the submissions of learned counsel for the appellant/State, and after perusing the entire lower court record, we do not find any sufficient reason to interfere with the impugned judgment, passed by the trial court. Therefore, the appeal is liable to be dismissed. The same is dismissed. (Dharam Veer, J.) (Prafulla C. Pant, J.) Sweta Dt:09.07.2008 9 10 11 12 13 14