IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL* Criminal Appeal No. 183 of 2010 Abbal Singh Bhandari S/o Sri Bhawan Singh Bhandari R/o Village Dewar Khadora (Gawana Namak Tok) Police Station Chamoli, District Chamoli. ...…………. Appellant (in jail) Versus State of Uttarakhand ...…………. Respondent Mr Rajeev Sharma, Advocate, present for the appellant. Mr. Amit Bhatt, Addl. Govt. Advocate, present for State. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble V. K. Bist, J. Hon. Prafulla C. Pant, J (oral) This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 31.07.2010 / 02.08.2010, passed by Sessions Judge, Chamoli, in Sessions Trial No. 20 of 2008, whereby accused / appellant Abbal Singh Bhandari has been 2 convicted under Section 304-B of the Indian Penal Code, 1860 (for short I.P.C.), and sentenced to undergo imprisonment for life. 2) Heard learned counsel for the parties and perused the lower court record. 3) Prosecution story, in brief, is that accused / appellant Abbal Singh Bhandari got married to Pramila (deceased) in the year 2006. She (Pramila) died on 29.04.2008 in her husband’s house in Village Dewar Khadora, within the limits of police station Kotwali Chamoli. After her death, P.W. 1 Jasveer Singh, brother of the deceased, lodged first information report (Ext. A – 1) that his sister (Pramila) was subjected to cruelty for non-fulfillment of demand of dowry before her death. The complainant (P.W. 1) suspected that accused / appellant Abbal Singh has murdered his wife. On the basis of said report, Crime No. 209 of 2008 was registered at police station Chamoli (Kotwali) against accused / appellant Abbal Singh Bhandari (husband of the deceased), in respect of offence punishable under Section 304-B of I.P.C., and check report (Ext. A –14) was prepared. The investigation was taken up by Dr. Jagdish Chandra, Dy. Superintendent of Police (P.W. 9). On 29.04.2008, at about 04:10 P.M., dead body of the deceased was taken into possession by the police, and inquest report (Ext. A –2) was prepared. Other necessary papers viz. sketch of the dead body (Ext. A –5), police 3 form No. 13 (Ext. A –6), sample seal (Ext. A –7), and letter to the Chief Medical Officer (Ext. A –8) were also prepared, and dead body of Pramila was sent in sealed condition for postmortem examination. On 30th of April 2008, Dr. V.P. Singh (P.W. 5) conducted postmortem examination on the dead body of Pramila. Though, he observed as many as six minor ante mortem injuries like abrasions, but opined that cause of death could not be ascertained. In the autopsy report (Ext. A –3) he observed that viscera was preserved. Meanwhile, the Investigating Officer interrogated the witnesses, inspected the spot, and prepared site plan (Ext. A –9). After completion of investigation, charge sheet (Ext. A – 11) was filed by the Investigating Officer, against accused / appellant Abbal Singh Bhandari, in respect of offences punishable under Section 498-A and 304-B of I.P.C. After submission of charge sheet, report of Forensic Science Laboratory, Agra, was received in respect of viscera preserved, reporting that no chemical poison was found in stomach, piece of intestine, piece of liver, one kidney, spleen and piece of lung. 4) The Chief Judicial Magistrate, Chamoli, on receipt of the charge sheet in the month of June 2008, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., committed the case to the court of sessions for trial. Learned Sessions Judge, Chamoli, on 2nd of August 2008, after hearing the parties, framed charge of offence punishable under Section 4 498-A, and one punishable under Section 304-B of I.P.C. against accused Abbal Singh Bhandari, who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Jasveer Singh (informant and brother of the deceased); P.W. 2 Virendra Singh Aswal; P.W. 3 Rajeev Singh Mehta; P.W. 4 Parwati Devi (mother of the deceased); P.W. 5 Dr. V.P. Singh (who conducted the postmortem examination); P.W. 6 Sudarshan Singh (declared hostile); P.W. 7 Bhupati Raj Naib Tehsildar (who prepared inquest report); P.W. 8 Pratap Singh (declared hostile); P.W. 9 Dr. Jagdish Chandra (who investigated the crime); P.W. 10 Sub Inspector Shanti Godiyal (arresting officer); and P.W. 11 Head Constable Kunwar Singh Negi (who prepared check report of the basis of FIR). The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which the accused / appellant admitted that deceased was his wife, who died on 29th of April 2008. He pleaded that his marriage with the deceased was a love marriage. It is also stated by him that his wife Pramila (deceased) was suffering from epilepsy. He has also tried to explain that minor injuries found in the postmortem report were caused, as after his wife suffered epilepsy, her mouth was tried to be opened forcibly. In defence, D.W. 1 Dr. Sanjay Kandwal was got examined, who stated that on 28th of February 2008, Pramila Bhandari suffered epilepsy attack, and was admitted in the emergency ward. However, on the next day, she was discharged from the hospital. 5 5) Before further discussion, we think it just and proper to mention here the relevant provision of law, applicable to this case. Section 304B 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 of 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.” From the above provision of law it is clear that one of the necessary ingredient to constitute an offence punishable under Section 304-B of I.P.C. is that the woman must have died an unnatural death. In the present case, the postmortem examination report (Ext. A –3) read 6 with the statement of P.W. 5 Dr. V.P. Singh shows cause of death of the deceased could not be ascertained, and viscera was preserved. From the report dated 8th August 2008, received from Forensic Science Laboratory, Agra, it is clear that in the viscera (which included piece of stomach, piece of intestine, piece of liver, one kidney, spleen and piece of lung) contained no chemical poison. As such, we are of the view that prosecution has not proved on the record that Pramila, wife of accused / appellant Abbal Singh Bhandari, died unnatural death. 6) In this connection, it is pertinent to mention here that the accused / appellant has taken a consistent defence that his wife died of epilepsy attack. He got examined D.W. 1 Dr. Sanjay Kandwal, Medical Officer of District Hospital, Chamoli, who stated that on 28th of February 2008, Pramila Bhandari, wife of Abbal Singh Bhandari, was admitted in the emergency ward, and she was suffering with the symptoms of epilepsy. The witness states that on the next day she was discharged, and prescribed certain medicines. This witness has further stated that due to the attack of epilepsy a patient can die. Not only this, P.W. 5 Dr. V.P. Singh, who conducted the postmortem examination on the dead body of Pramila Bhandari, has stated in his cross-examination that in the case of attack of epilepsy the teeth of both jaw get stuck, and if attempt is made to open the mouth, the marks of nails and hand can be seen on the face and around of the patient. He has also admitted that due to the attack of 7 epilepsy a patient can die. This question has been put to the aforesaid witness of prosecution by the defence to explain the abrasions found on the body of the deceased at the time of postmortem examination. Not only the defence witness, but even P.W. 6 Sudarshan Singh has also admitted that in the second year of her marriage, Pramila Bhandari suffered 2-3 attacks of epilepsy. He has further stated in the cross-examination that on the day Pramila Bhandari died, froth was coming out from her mouth, and she was immediately taken to hospital, but she died on the way. Another prosecution witness P.W. 3 Rajeev Singh Mehta, who lives in the neighbourhood of the deceased, in his cross-examination has stated that he cannot deny the fact whether Pramila died of epilepsy, or not. This further gives support to the defence version that the deceased was suffering from epilepsy, and died of attack of said disease. P.W. 1 Jasveer Singh, brother of the deceased, also admits in his cross-examination that when he reached in the house of the accused on hearing about death of his sister, he was told by the accused that deceased had an attack of epilepsy. 7) In the above circumstances, since unnatural death of Pramila Bhandari is not established on the record, as such, it cannot be said that the offence punishable under Section 304-B of I.P.C. gets attracted to the present case. 8 8) Now, we come to the evidence on record relating to offence punishable under Section 498-A of I.P.C. Accused has pleaded that his marriage with Pramila Bhandari was a love marriage. In this connection, it is contended on behalf of the defence that there was no question of demand of dowry in the present case. P.W. 6 Sudarshan Singh admits that marriage between the deceased and accused was a love marriage. P.W. 1 Jasveer Singh, brother of the deceased, has stated that accused used to demand ` 500 – 600 from the deceased, but in his statement recorded under Section 161 of Cr.P.C., he has stated that accused demanded ` 1,000/- from the deceased. Having gone through the evidence adduced by prosecution witnesses, including that of P.W. 4 Parwati Devi, we do not find reliable evidence on the point that the accused made demand of dowry from the deceased, and harassed her for non-fulfillment of demand of dowry. In the first information report it is nowhere stated as to what was the demand of dowry made by the accused which remained unfulfilled. In the circumstances, we are of the view that neither in the present case demand of dowry is proved, nor harassment for non-fulfillment thereof. 9) For the reasons as discussed above, we find that neither the charge of offence punishable under Section 498-A of I.P.C., nor that of 304-B of I.P.C., is proved against the accused / appellant Abbal Singh Bhandari. The presumption under Section 113B of the Indian 9 Evidence Act, 1872, gets attracted only when it is shown that soon before the unnatural death of the woman she was subjected to cruelty or harassment for non- fulfillment of demand of dowry. We have already discussed above that neither any specific demand of dowry is mentioned in the first information report, nor stand proved on the record, nor is it proved that the deceased was subjected to harassment, who infact suffered from epilepsy and appears to have died of said disease, which cannot be said an unnatural death. 10) Therefore, the appeal is allowed. The conviction and sentence recorded by the trial court against the accused / appellant Abbal Singh Bhandari vide impugned judgment and order dated 31.07.2010 / 02.08.2010, in Sessions Trial No. 20 of 2008, is hereby set aside. Appellant Abbal Singh Bhandari is acquitted of the charge of offences punishable under Section 498-A and 304-B of I.P.C. He is in jail. He shall be set at liberty forthwith, if not required in connection with any other crime. Let a copy of this judgment be sent to the Superintendent of jail concerned. Lower court record be sent back. (V.K. Bist, J.) (Prafulla C. Pant, J.) Dt. March 25, 2011. H. Negi *Approved for reporting