IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1931 of 2001 (Old No. 1060 of 1998) 1- Nitya Nand S/o Bishan Dutt Tiwari 2- Smt. Lilawati W/o Nitya Nand 3- Km. Asha D/o Nitya Nand 4- Km. Hansi D/o Nitya Nand All R/o village Vijaipur, P.S. Patwari Kshetra Dwara1hat, District Almora …. Appellants. Versus State .. Respondent. Mr. B.S. Parihar, Advocate for the appellants. Mr. S.S. Adhikari, learned A.G.A. for the State. (Hon’ble B.S. Verma, J.) This criminal appeal, U/S 374(2) of the Cr.P.C., has been preferred against the judgment and order dated 1.6.1998, passed by Sessions Judge, Almora in S.T. No. 6 of 1994, State Vs. Nitya Nand and three others, whereby the accused Nitya Nand Tewari, Smt. Lilawati, Km. Asha and Km. Hansi were convicted U/S 304-B I.P.C. and each of them were sentenced to undergo ten years R.I. Brief facts giving rise to the instant appeal are that Smt. Bhagwati Devi, who was married to Satish Chandra son of accused Nitya Nand Tewari on 13-6-1991, has died due to burn injuries on 18-7-1993. Accused Nitya Nand Tewari is father-in-law and Smt. Lilawati was mother-in-law of Smt. Bhagwati and the other two accused Km. Asha and Km. Hansi are the daughters of accused Nitya Nand. Nitya Nand had one son Satish Chandra, who was working in Military at Kumaon Regimental Centre, Ranikhet. Family of accused Nitya Nand was living in village Vijaipur, Dwarahat. The occurrence had taken place on 18.7.1993. The written report of the occurrence, Ext. Ka.1, was lodged by accused Nitya Nand himself. Accused Nitya Nand has mentioned in the written report that on 18-7-1993 at about 10 a.m. the daughter-in-law Smt. Bhagwati had sprinkled kerosene oil upon her and committed suicide by burning herself. He further mentioned in the F.I.R. that he 2 had gone to market and the two daughters Km. Asha and Km. Hansi, along with their mother had gone to jungle for cutting grass. The daughter-in-law was left at the house for safety of the house. When he returned to home at that time his two daughters and his wife had also returned there and they found the daughter-in-law burnt in the room. On receiving information about the occurrence, the Patwari left for the place of occurrence. He found one Jeri-can of kerosene oil near the body of the deceased. According to the Patwari he had received the information at 2 P.M. through two persons informing him that the daughter-in-law of Nitya Nand had committed suicide. When he reached at the spot, the report was given by Nitya Nand to the Patwari at 3 P.M. at his residence. He inspected the spot and started inquest proceeding on 18.7.1993 at 3 P.M. in village Vijaipur. The distance of village Vijaipur from the Patwari Chauki is about two kilometres. He appointed Sri Deokinandan Tewari, Mohan Chandra Tewari, Nitya Nand Tewari, Diwan Singh, and Ganesh Chandra Tewari, as panches for conducting the inquest proceeding and prepared inquest report Ext. Ka.2. On inspection the Patwari found that no ornament was there on the body of the deceased except one pair of paijeb on her legs. The total body was burnt. The hair of the head had singed. The tongue of the deceased was protruding and it was in between the teeth. The total clothes from upper portion to the lower portion were burnt. There was one match box and a jeri-can of five litres of kerosene oil, which was half-filled, near the place of occurrence. The articles kept in the room were not affected with the fire. The panches were not in a position to say as to why the deceased had committed the suicide. The patwari wrote letter Ext. Ka.7 to Superintendent of Civil Hospital, Ranikhet for conducting post mortem on the dead body. He also prepared challan lass, Ext. Ka.8, sealed the dead body and prepared sample seal Ext. Ka.9. The burnt clothes, match box and jeri-can were taken into custody by the Patwari from the place of occurrence and prepared its recovery memo, Ext. Ka.10. He also prepared site-plan of the place of occurrence Ext. Ka.11 and sent the body for post mortem. 3 The post mortem on the dead body of the deceased Smt. Bhagwati Devi, was conducted by Dr. N.K. Pandey, and Dr. M.P. Singh on 19-7-1993 at 1 p.m. in Civil Hospital Ranikhet. The Medical Officers found following anti-mortem injuries on the person of the deceased- Ante-mortem burn present all over the body except part of buttock, back of abdomen, part of right fore-arm anterior side, both feet and sole. Total area 90% burnt. Third to fourth degree burn present over lower abdomen and anterior part of left thigh. First to second degree burn present over remaining area. Vesication filled with fluid and line of redness present over back. Singeing of scalp hair and eye-brows and blackening of skin present. The Medical Officers also found that in larynx and trachea, carbon particles were present. Both the lungs were congested and about 400 gms. semi-digested food was present in stomach. The Medical Officer noted the time of death about one day back. The doctor opined that the cause of death was shock as a result of extensive burn. The post-mortem report is Ext. Ka.6. The prosecution story further is that when the preliminary works were done by the Patwari, on the next day, i.e. 19-7-1993, the brother of the deceased Smt. Bhagwati Devi, namely Mahesh Chandra Kandpal, had given another written report Ext. Ka.5 to the Patwari which contains a different story. In this written report it has been said that the real sister of the reporter Smt. Bhagwati Devi was married to Satish Chandra Tewari son of Sri Nitya Nand Tewari, in village Ghaghalodi, District Almora about two years back. Her in-laws Nitya Nand Tewari and Smt. Lilawati as well as her two unmarried Nanad used to make a demand of dowry from the deceased. They were also threatening to kill her if she did not fulfil their demand of dowry. The deceased was feeling hesitant to tell all this to the family at her maika. It is also narrated in the written report that wife of the reporter had visited her home on 3.7.1993 in village Deri and from there she went to meet Smt. Bhagwati. Then the mother-in-law and Nanads said to her that you should take this lady to your home. 4 The reporter also stated that the accused persons had committed murder of his sister and without informing them they had cremated the dead body. This second written report is Ext. Ka.5. After receiving this second F.I.R. the investigation of entrusted to Naib Tehsildar on 21.7.1993. During investigation he was given inland letter, which was written by Bhuwan Chandra Kandpal to his father and mother on 28-6-1993 from Haldwani, which is paper No. Ext. Ka.3. The Fard of this letter for taking into possession was prepared by the investigating officer on 22-8-1993 which is paper No. 6-Ka/7. During investigation the family members of the maika of deceased also gave a receipt of sewing machine dated 1.5.1992 to the investigating officer, which is Ext. Ka.4. The investigating officer recorded the statements of the witnesses and after completing the investigation submitted charge sheet Ext. Ka.13 against the accused persons. The then Munsif Magistrate, Ranikhet, vide his order dated 27-1-1994 committed the case to the court of sessions. The Sessions Judge, Almora framed charges U/Ss 302/34 and 304-B I.P.C. and in the alternative U/S 306 I.P.C. against accused Nitya Nand, Smt. Lilawati, Km. Asha and Km. Hansi, to which they denied and claimed to be tried. Thereafter, the prosecution in support of its case, got examined as many as nine witnesses, of these are P.W.1 Devki Nandan Tewari, P.W.2 Mohan Chandra, P.W.3, Bhuwan Chandra, P.W.4, Smt. Nandi Devi, P.W.5, Mahesh Chandra Kandpal, P.W.6, Dr. Nawal Kishore Pandey, P.W.7, Deepak Chandra Kandpal, P.W.8, Chandramani Masiwal, and P.W.9, Sri Jeewan Chandra Joshi. P.W.1, Devki Nandan Tewari is the scribe of first F.I.R. He is younger brother of accused Nitya Nand. P.W.2, Mohan Chandra had gone to the house of accused Nitya Nand when they raised alarm and had seen the dead body of the deceased in burnt condition. He is also a witness of inquest. P.W.3, Bhuwan Chandra, is the real brother of the deceased. P.W.4, Smt. Nandi Devi is the mother of the deceased, P.W.5, Mahesh Chandra 5 Kandpal is also brother of deceased who had lodged the second F.I.R. at Patwari Chauki. P.W.7, Dr. Nawal Kishore Pandey had conducted post mortem on the dead body of the deceased. P.W.7, Deepak Chandra Kandpal is also another brother of the deceased. P.W.8 and P.W.9 are formal witnesses. P.W.8, had proved the prosecution papers prepared by the investigating officer during investigation. P.W.9, Jeewan Chandra Lohani, who was first investigating officer also stated about the investigation. The accused persons in their statements U/S 313 Cr.P.C. denied the prosecution case and alleged that they are innocent and they have been falsely implicated in the case. Accused Nitya Nand Twari has produced himself in defence as D.W.1. He has filed copy of F.I.R. Ext. Kha.1 and alleged that he had sent the report of the death of Smt. Bhagwati at the hands of two persons to the Patwari. The learned Sessions Judge, after hearing learned counsel for the parties and evaluating the entire evidence on record found all the four accused persons guilty of the offence U/s 304-B I.P.C. and convicted and sentenced all of them to undergo R.I. for ten years. However, the accused persons were acquitted U/S 302/34 and 306 I.P.C. Feeling aggrieved by their conviction and sentence awarded by the trial court, the accused persons have preferred this criminal appeal. At the outset it is to be stated that during pendency of appeal, accused Smt. Lilawati had died. Incharge Chief Judicial Magistrate, Almora vide his letter dated 01-10-2005 has informed this fact to the court. Therefore the case has abated against her. I have heard learned counsel for the parties and perused the record. All the accused/appellants have been convicted for an offence punishable U/s 304-B I.P.C. The ingredients of dowry death punishable U/S 304-B I.P.C. are as under- 1- The death of a woman should be caused by burns or bodily injury or occurs otherwise than under normal circumstances, 6 2- such death should have occurred within seven years of her marriage, 3- soon before her death she must have been subjected to cruelty or harassment by her husband or any relative of her husband, and 4- such cruelty or harassment should be for or in connection with demand of dowry. In the instant case it is admitted fact that the death of the deceased was caused due to burn injuries and her death cannot be said to be occurred in normal circumstances. The marriage of deceased Bhagwati was performed with Satish Chandra son of accused Nitya Nand on 13-6-1991 and her death has occurred on 18- 7-1993, just after about two years of her marriage. The deceased was subjected to cruelty soon before her death by the accused appellants in connection with their unlawful demand of dowry. According to complainant side the accused/appellants had made demand of Rs. 30,000/- in the month of May 1993, when younger brother of deceased, Deepak Chandra Kandpal, had visited the in-laws house of the deceased and the death had occurred on 18-7-1993. The demand of the accused/appellants was not fulfilled and harassment of the deceased was continuing at the hands of the accused and it came to end when Smt. Bhagwati died. Therefore, all the ingredients of offence of dowry death are made out against the accused/appellants. Learned counsel appearing on behalf of the appellants has argued that it is not a case of dowry death rather the deceased herself had committed suicide by burning herself after pouring kerosene oil upon her and the accused/appellants cannot be held guilty of offence U/S 304-B I.P.C. I do not find any substance in the above submission of learned counsel for the appellants. In dowry death cases and in most of such offences direct evidence is hardly available and such cases are usually proved by circumstantial evidence. Section 304-B I.P.C. as well as Section 113-B of the Evidence Act enact a rule of presumption, if death occurs within seven years of marriage in suspicious circumstances. In the instant case nowhere has come that the deceased Smt. Bhagwati was either suffering from some ailment or her relations 7 with her husband were not cordial and she was in strain for some other reason. Rather it has come in evidence that Smt. Bhagwati after her marriage had visited her maika along with her husband many times and she had no complaint about her husband, but she was making complaint of her father-in-law, mother-in-law and her Nanads about torture on their part in lieu of demand of dowry. The accused persons also did not explain the circumstances in which the deceased had reason to commit suicide at her in-laws house. The accused/appellants are silent on this point. The death of the deceased cannot be said to be in normal circumstances for the reason that at the place of occurrence the investing officer found a matchbox, a plastic jeri-can five litres half filled with kerosene oil and there was cot and bed towards the feet of the deceased but these articles were intact. It is surprising that the deceased was burnt to 90% and she might have moved around writhing in pain and during this process the articles kept inside the room might have caught fire. Therefore, presumption of dowry death can safely be raised accused the accused/appellants in whose house the deceased had died due to burn injuries and the accused/appellants have not explained the death. The another circumstance which goes against the accused/appellant is that after the death of the deceased the accused persons did not inform the parents/brothers of the deceased and started the proceedings of inquest, post mortem and cremation of the dead body. Now it is to be seen whether the accused/appellants have harassed the deceased on account of their unlawful demand of dowry. The prosecution in order to prove the allegation of demand of dowry against the accused appellants has produced the family members of parental side of the deceased. P.W.3, Bhuwan Chandra is the real brother of the deceased. He has stated in his statement that marriage of his sister had taken place with Satish Chandra son of accused Nitya Nand on 13.6.1991. Name of his brother is Deepak. Deepak was returning his home after giving exam in Haldwani and on 18th June 1993, Deepak 8 told him that he had gone to the in-laws’ house of Bhagwati and she had told him that her father-in-law Nitya Nand, his wife Smt. Lilawati, Km. Hansi and Km. Asha asked him that his sister had brought less dowry and you all the five brothers should give Rs. 30,000/- as dowry and on failure they would drag Bhagwati to her maika. This witness has further deposed that he withdrew Rs. 4,000/- from his Saving Bank account and handed over to his father and his father sent that amount to Bhagwati Devi through some villager. He further stated that on 28-6-1993 he sent a letter to his father. This witness has proved that letter as Ext. Ka.3. He has also stated in his statement that Bhagwati used to tell her ill-treatment by the accused for bringing less dowry to her mother, sister-in-law and father. He further deposed that they had given a sewing machine to Bhatwari in her marriage and that machine had broken. As the accused persons were taunting Smt. Bhagwati for giving a broken machine, therefore, they had given new machine to the in-laws of Smt. Bhagwati. This witness has stated that the accused persons had killed his sister for not fulfilling their unlawful demand of dowry. In the cross-examination this witness has stated that they had not made any complaint against the accused for their unlawful demand of dowry for the reason that they do not wanted to have bad relations with the accused persons. He also stated that he had sent Rs. 4000/- to his father through Harish Chandra. P.W.4, Smt. Nandi Devi is the mother of deceased Smt. Bhagwati. She has also deposed that mother-in-law, father-in- law of the deceased and her Nanads Asha and Hansa ill-treated the deceased. When the deceased had come to her home she has told that the accused persons behaved her with cruelty due to their unlawful demand of dowry. This witness further deposed that the deceased had told her that her mother-in-law had suggested that marriage of Km. Asha be done with Bhuwan ( younger son of this witness), but this witness had refused for this proposal due to the reason that dwell relation in a family does not succeed and for this reason also Smt. Bhagwati was being ill-treated by her mother-in-law. She also stated that her daughter was killed by the accused by burning her. They got information of killing Smt. Bhagwati by burning from the sasural of 9 her elder son Mahesh, which is situated nearby to the village of the accused. In the cross-examination this witness has deposed that after hearing complaint of Smt. Bhagwati they did not lodge any complaint but they had solaced Smt. Bhagwati and her husband. She has further stated that they had made up their mind for giving some money to the in-laws of Smt. Bhagwati but before that she was killed. P.W.5, Mahesh Chandra Kandpal, is another brother of the deceased. This witness also corroborated the statements of P.W.3 and P.W.4. He has stated that after marriage of Smt. Bhagwati, once he had called her to her maika and when he asked her about her in- laws she told him that her in-laws often used to state that her parents did not given any dowry and they were ill-treating her. He further deposed that they had given new machine to the husband of the deceased. He has proved its receipt dated 1.5.1992, as Ex. Ka.4. This witness also stated that his younger brother Deepak had gone to his sasural in order to fetch his wife and children in village Deri. The sasural of Bhagwati is two kilometres away from that village. Deepak had gone to meet Bhagwati at her sasural and Deepak had told this witness that all the four accused misbehave with her and her condition is not good there. On 19-7-1993 he received information from his sasural that Bhagwati had been killed by the accused persons after burning her and her dead body was carried by accused to Ranikhet for post mortem. Thereafter on the same day at about 7-30 P.M. he went to Patwari Dwarahat and got lodged there the F.I.R. This witness has proved the F.I.R. Ext. Ka.5. This witness has been cross-examined at a great length. Another witness of fact is P.W.7, Deepak Chandra Kandpal, who is elder brother of the deceased. He has given on oath statement that for the first time in May 1993 he had gone to the house of accused, where mother-in-law, father-in-law and nanands of the deceased had misbehaved with him and asked him to tell his brothers to bring Rs. 30,000/- as dowry. He further stated that there after in the month of June, 1993 he had gone to village Deri to escort his sister-in-law and her children and then he had come to the house of Nitya Nand in village Vijaipur and asked him as to why he had come there. Thereafter he went to Haldwani on 18th June. This witness 10 further deposed that he had told about the demand of Rs. 30,000/- in dowry by the accused to his brother Bhuwan Chandra. His brother Bhuwan Chandra had told him that he will write letter to the father for managing the money. Thereafter he came to know about the news published on 22nd July 1993 in daily Newspaper Amar Ujala that Bhatwati had been killed by her in-laws by burning. In the cross- examination this witness has deposed that he had gone to the sasural of his sister on 2.6.1993 and then they had demanded a sum of Rs. 30,000/-. Prior to this no amount was given to the accused in dowry. This witness has been cross-examined at length but nothing material could be elicited from it which may render the statement of this witness untrustworthy. In the cross-examination this witness has specifically deposed that he had stayed at the Sasural of Bhagwati Devi for a night in the month of May 1993 and the inlaws of Bhagwati had misbehaved with Bhagwati in his presence. Presence of this witness in the sasural of Bhagwati has not been disputed from defence side, as no suggestion has been given to this witness to this effect that he had not visited the sasural of Bhagwati, had not stayed there for a night and Smt. Bhagwati was not misbehaved by them in his presence. Learned counsel appearing on behalf of the accused/appellants has vehemently contended that there was no demand of dowry on the part of the accused/appellants and a false story of demand of dowry has been developed in order to make out a case against the accused/ appellants. According to him had there been any demand of dowry the parents/brothers of the deceased could have lodged a written complaint against the accused persons, but no report has been lodged by the complainant side, therefore, the interested statement of the complainant side should not be believed. Learned counsel also submitted that all the witnesses of facts produced by the prosecution are family members of the deceased and they are partisan witnesses. Their testimony is not supported by an independent evidence. It is pointed out here that the evidence of P.W. 3 Bhuwan Chandra, P.W.4, Smt. Nandi Devi, P.W.5, Mahesh Chandra Kanpal, and P.W.7, Deepak Chandra Kandpal, cannot be discarded for the simple reason that they are brothers and mother of deceased Smt. Bhagwati. It is well settled law that the evidence of related witness 11 can be relied upon when it is found trustworthy and convincing and it cannot be discarded on the simple reason that they are related witnesses. In the instant case evidence of above witnesses seems to be natural and creditworthy. All the witnesses have narrated that in- laws of Smt. Bhagwati were not satisfied with the dowry and due to this reason they were harassing and ill-treating the deceased. Whenever the deceased had come to her parents house she used to tell about the ill-treatment by the accused persons. The witnesses have also spoken about a specific demand of Rs. 30,000/- made by the accused persons before Deepak Chandra Kandpal, P.W.7, younger brother of the deceased when he had gone to inalws house of the deceased. It is also the case of the complainant side that when Deepak Chandra Kandpal narrated this fact to his elder brother Bhuwan Chandra P.W.3, he withdrew a sum of Rs. 4000/- from his Saving Bank account and sent the same to his father through Harish Chandra for giving the same to Smt. Bhagwati. P.W.3, also made statement that he had also sent letter Ext. Ka.3 to his father from Haldwani on 28-6-1993. In his cross examination this witness has denied the suggestion given to him that he had fabricated false letter Ext. Ka.3. However, the accused/appellants have not disputed the stamp of post office affixed on it. Besides the unlawful demand of dowry, the accused persons were saying that the deceased was ugly. The accused persons also used to tell the deceased that she belongs to a poor family. Such type of comments upon a girl by her in-laws as well as her Nanands also amounts to cruelty. The another glaring aspect in the case is that from inquest report Ext. Ka.2, it is quite clear that the house of accused Nitya Nand is