RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 196/2010 Navin Chandra Kandpal ……… Appellant Versus State of Uttarakhand ………. Respondent With CRIMINAL APPEAL No. 197/2010 Smt. Bachuli Devi & Others ……… Appellants Versus State of Uttarakhand ………. Respondent Mr. Lalit Sharma, Advocate, present for the appellants. Mr. Amit Bhatt, A.G.A., present for the State. 24th June, 2011 Hon’ble Prafulla C. Pant, J. Hon’ble Servesh Kumar Gupta, J. (Per : Hon’ble Servesh Kumar Gupta, J.) Since both these appeals have been preferred challenging the same verdict, hence, they are being decided by this common judgment. 2. These appeals are directed against the judgment and order dated 7.8.2010 rendered by the Sessions Judge, Almora, whereby the learned Judge has convicted the accused appellant Naveen Chandra Kandpal and sentenced to life imprisonment under Section 304B IPC and fine of Rs. 1000/-, nay accused Harish, Dinesh (brothers) of groom Naveen Chandra Kandpal, Smt. Bachuli Devi (grandmother of groom) and Smt. Pushpa Devi (mother of 2 groom) have been sentenced to seven years rigorous imprisonment under Section 304B IPC and fine of Rs. 1000/- each. For the offence of Section 498A IPC, all the accused have been found guilty and Naveen Chandra Kandpal has been sentenced to two years rigorous imprisonment and fine of Rs. 1000/-, while rest of the accused persons aforenamed have been sentenced for one year rigorous imprisonment and fine of Rs. 500/- each. These sentences have been passed in Sessions Trial No. 36/2007, Crime No. 2/2007 pertaining to Patwari area Jalali (Chokhutia). 3. Brief sketch of the facts is that deceased Smt. Manju was wedded with Naveen Chandra Kandpal on 12.6.2005. Few months after the wedding passed in conjugal pleasure, Naveen Chandra Kandpal, the husband of the deceased started torturing his wife Smt. Manju on the question of being given less and insufficient dowry by her father. Manju’s father was posted in Meerut in some sugar mill. So he was away from the home and earning his livelihood. His monetary position was not so sound. Smt. Manju tried to persuade her husband Naveen Chandra Kandpal on the question of weak monetary position of her father, but all went in vain. Torturing behaviour of Naveen Chandra Kandpal went to the extent of repeated beating of Smt. Manju and she was forced to leave her in-laws house and to take shelter in the house of her parents, time and again. 4. After all Smt. Manju was found dead at a fair distance of her in-laws house in jungle. Her dead body was detected first of all by her younger brother-in-law Harish on 3 23.5.2007. As per story, developed by Harish, his Bhabhi Smt. Manju went to collect grass from the nearby forest in the morning. At about 10 am, he heard some screams while he was offering pooja at a nearby temple. He rushed up to the spot and found his Bhabhi dead. Her body was found lying on the earth. He immediately called a local doctor, who declared her dead. On information ,Sri Hari Datt, the father of Smt Manju, along with his companions rushed up to the spot and after participating in the usual last rituals of cremation, he returned to his village Nagarjun, Tehsil Dwarahat and on 24.5.2007 itself gave the First Information Report to Sub Divisional Magistrate concerned, who in turn ordered Supervisor Kanoongo, Jalali for ensuing appropriate legal action. This FIR could be reduced into writing on next day i.e. on 25.5.2007. Investigation started and after the same the chargesheet against all the accused persons was submitted as above. The charge was framed accordingly. The accused persons denied the same. So, the prosecution examined the witnesses and after recording the evidence of prosecution witnesses and statement of the accused under Section 313 CrPC, the two defence witnesses were also examined and thereafter the accused persons have been convicted as aforementioned. Feeling aggrieved, these appeals have been preferred. 5. We have given anxious consideration to the rival submissions and after having gone through the record, we feel that the tale of atrocities, tyrannies, which the deceased was fatefully subjected at the hands of her husband can appropriately be adumbrated by narrating the contents of the letter Ex. Ka-5, which Smt. Manju finding no other way for her rescue, gave to the office bearers of the 4 village panchayat of her own native place Nagarjun. This letter discloses that she was married on 12.6.2005 to Naveen Chandra Kandpal S/o Daya Krishana Kandpal (late). On 10.10.2005, Naveen Chandra Kandpal giving her intermittent beating left her stray in the midway between her in-laws house and parent’s house. This place, where she was left, is known as Suraikhet from where she all alone came to her native village. On the very next day, her mother-in-law Smt. Pushpa Devi came to fetch her and so she again went to her in-laws house. Thereafter her husband took her to Bhikiasen, where she was given the frequent beatings on the question of insufficient dowry. Naveen Chandra Kandpal brought her to his village and in the month of November, 2005, he tried to set ablaze her in a closed room. Naveen Chandra Kandpal threw the tin box and sofa, which was given in the dowry. Smt. Manju, in order to save her life, gave a ring call to her mother and told the above attitude of her husband. Hearing this, the mother of Smt. Manju rushed to her daughter’s house along with two children, but Naveen Chandra Kandpal, seeing her mother-in-law Laxmi Devi, confined Smt. Manju in a room and abused his mother-in-law. After three hours, he opened the lock of the room where Smt. Manju was confined. Laxmi Devi returned to her house disappointed. Next day, her uncle Prayag Datt, who came in that village in his relations, came to meet Smt. Manju. Smt. Pushpa Devi, mother-in-law of Smt. Manju advised her to leave the house for her native place or else she might be beaten at the hands of Naveen Chandra Kandpal. So, Smt, Manju accompanied with her uncle Prayag Datt came to her parent’s house again. After two months Naveen Chandra Kandpal came along with two persons to take her and 5 promised not to misbehave with her in future. He pretended to have realised his mistake and reduced the same in writing on a stamp paper. He promised not to repeat this mistake again. Although Smt. Manju’s father was not at home because he was at the place of his posting in Merrut, but even then Manju’s mother Laxmi Devi sent her daughter Manju along with her husband Naveen Chandra Kandpal, who took her to his place of posting Masi where she was kept for three months and thereafter to Doghat. 6. Naveen Chandra Kandpal did not improve his behaviour and used to beat her as usual. He also extended the threat to kill her prospective child in the womb with the comment that she could not do anything of him. These circumstances again forced Smt. Manju to leave the company of her husband and somehow, she reached to her parent’s house again. She did not have even the bus fare, which was later on paid to the conductor of the bus by her father. Since then she was living at her father’s house. Although her husband Naveen Chandra Kandpal two-three times came to meet her, but he continuously extended threats. So these circumstances terrified Smt. Manju very much and she reduced all these facts on the application, which she gave to the office bearers of village panchayat Nagarjun, the native place of Smt. Manju on 27.8.2006. On 28.8.2006, the next day, Naveen Chandra Kandpal arrived in the village Nagarjun and apologised on a stamp paper (Ex. Ka-2) for all his misdeeds. Prior to this, he had already given undertaking (Ex. Ka-1) on 15.1.2006 in the same tone and tenor, but his behaviour did not change. She was again forced to take shelter in the house of her father. 6 Naveen Chandra Kandpal again came on 30.10.2006 and furnished similar apologitical undertaking Ex. Ka-3 and took his wife. All this could not bring any change in the behaviour and attitude of Naveen Chandra Kandpal and thus, her dead body was found lying as aforementioned on 23.5.2007. 7. Inquest report was prepared on 24.5.2007 at 10 am in the presence of several persons, who were residents of village Kande as well as in presence of two persons of village Nagarjun. All expressed their opinion that the death of Smt. Manju is not natural, but was in the surreptitious circumstances. Certain ante mortem injuries were also detected in the post mortem report, which are as under: (i) Contuded abrasion over left part curricular region head 3 x 1 cm, bone deep. (ii) Multiple abrasions in the area 5 x 4 cm at the right place of bosom. (iii) Lacerated wound 3 x 0.5 cm skin deep in the left side of neck. (iv) Multiple abrasions in the area of 5 x 4 cm on left side of thigh. 8. These were the external injuries. On the internal examination, it was found that the internal membrane of stomach was congested, the wall of stomach had been blackish. The liver, plea and kidney were congested. The cause of death could not be ascertained. So, the viscera was preserved. The joint panel of doctors, who conducted this autopsy opined that the death was possible on 23.5.2007 at morning and all the external injuries on the body of deceased were possible in the mutual scuffling and 7 physical assault prior to the death. The doctor has further opined that if the endeavour is made to administer the poison forcefully, then these injuries could have been possible. When the viscera was chemically examined, it was revealed in the forensic lab report Ex. Ka-20 that the death of Smt. Manju had occurred due to the organochlora insecticide poison, which was found present in all the parts of viscera, which was preserved. 9. From the facts, as stated above, this much is clear that this death of Smt. Manju was unnatural. Her body was found lying resting at the strength of her waist on the ground in the nearby desolate ‘Gadhera’ (a gorge). It is also significant to note that the evidence discloses that some froth was emanating from her nostrils and corner of mouth. 10. Here, it would be worthwhile to read the language of Section 304B IPC and that of the presumption envisaged under Section 113-B of the Indian Evidence Act, which are 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. 8 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).” “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 hear 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).” 11. It is evident that Smt. Manju was wedded on 12.6.2005 and lost her life in her in-laws village Kande on 23.5.2007 i.e. within two years of her marriage in the unnatural circumstances. So the burden was upon Naveen Chandra Kandpal, her husband, to prove his innocence, particularly in the light of the circumstances, which were indicating towards his involvement or rather active participation in the perpetration of the crime. 12. Naveen Chandra Kandpal is said to be a Government servant and was posted as forest guard in the nearby place. His posting kept on changing, but in the surroundings only. It has been strived to prove that he 9 reached his home at 5 or 6 pm on 23.5.2007 after hearing the said news. But the possibility cannot be ruled out that he was the perpetrator of this crime being posted in the surrounding of his home. It was none other than only Mr. Naveen Chandra Kandpal, who could have done so. He even has not furnished any proof that on 22.5.2007 and 23.5.2007, he performed his official duties. Even if he performed his official duties, then also it was not impossible for him to do the both tasks in the same date because his place of posting was not so far away from his village. So his involvement in the crime is beyond any doubt. 13. Prosecution has examined PW1 Lacchima Devi, the mother of the deceased. She has deposed that a month after the marriage, the demand of dowry was made and her daughter was subjected to cruelty, but this witness has specifically named only Naveen Chandra Kandpal for physical assault to her daughter on the question of dowry. This witness has not named any other accused by name so that to make a clear cut involvement of them in causing the harassment of the deceased on the question of dowry. Lacchima Devi has proved that her daughter was assaulted and beaten bitterly many a times by her son-in-law and once on receiving telephone call, she rushed to her daughter’s in-laws house, then Naveen Chandra Kandpal confined her daughter in a locked room and left for the market. This statement of Lacchima Devi finds corroboration with the version of the deceased, which she has disclosed in Ex. Ka-5, that is an application/complaint, which this unfortunate wedded lady haplessly gave to the office bearers of the gram Panchayat Nagarjun. PW1 10 Lacchima Devi has proved that in order to save the life of her daughter, she gave Rs. 5000/- and Rs. 10000/- to her son-in-law Naveen Chandra Kandpal and this version of PW1 finds corroboration even in the statement of Smt. Bachuli Devi and Smt. Pushpa Devi, who are the grandmother and mother respectively of Naveen Chandra Kandpal. This witness PW1 has also proved the compromise letter adverting the tendering of apology by Naveen Chandra Kandpal times and again, which are Ex. Ka-1, Ka-2 and Ka-3. 14. PW2 is the witness Pooran Chandra R/o village Nagarjun, who also rushed to the spot hearing the news of death of Smt. Manju and has proved that he was mediator of this marriage. He has deposed that Hari Datt, his brother had told time and again to him regarding the demand by Naveen Chandra Kandpal to the tune of Rs. 40,000 to Rs. 50,000 on account of dowry and in default, Naveen Chandra Kandpal had extended beatings to the deceased. The village of accused is at a distance of 7-8 kilometres from the native place of Pooran Chandra. Although he has said that at the time of writing compromise Ex. Ka-1, Ka-2 & Ka-3, there was no demand of any dowry, but absence of this demand was not unnatural on the part of the main accused Naveen Chandra Kandpal, because he came to restore his conjugal relations and to take Smt. Manju. So, merely the absence of demand of dowry at the time of writing compromise Ex. Ka-1, Ka-2 & Ka-3 cannot be indicative of absence of the delinquency of Naveen Chandra Kandpal on the question of dowry and repeated beatings and maltreating of Smt. Manju by him. 11 15. PW3 Hari Datt is the father of deceased. He has categorically proved the delinquency of the main accused Naveen Chandra Kandpal and the repeated demands of the wherewithal reflecting the atrocious attitude over the person of the deceased. He has proved that the behaviour of Naveen Chandra Kandpal had caused a great anguish to his daughter. This witness has proved that whenever his daughter used to come to his house, she disclosed this attitude of Naveen Chandra Kandpal. 16. PW4 Suresh Chandra Purohit is the formal witness, who has conducted proceedings of the inquest report, prepared the map of the site where the dead body was lying and has sent the dead body for post mortem. This witness has proved the formal papers, which were prepared till her cremation. 17. PW5 Pooran Singh Bisht is another Supervisor Kanoongo, who has prepared the chick FIR Ex. Ka-14 and has conducted the investigation, recorded the evidence of prosecution witnesses under Section 161 CrPC. He has proved the formal papers, which he had prepared and later this investigation was transferred to Gopal Ram Arya, who is PW7. 18. PW6 Dr. K.K. Pandey, who has conducted the autopsy and has proved the report of the same. 19. PW8 Rakesh Tiwari is the Tehsildar, who has also investigated the matter and submitted the chargesheet and has proved the same in his statement in the Court. 12 20. Argument has been advanced by the learned Counsel for the defence that there was no demand of any dowry ‘soon before death’ as envisaged in Section 304B IPC. In this regard, it will be relevant to recall the various precedents of Hon’ble Apex Court. In State of Andhra Pradesh v. Raj Gopal Asawa, 2004 AIR SC 1933, it has been held that in cases of dowry deaths and suicides, circumstantial evidence plays an important role and inference can be drawn on the basis of such evidence. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the ‘death occurring otherwise than in normal circumstances’. ‘Soon before’ is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period. No definite period has been indicated and the expression ‘soon before’ is not defined. 21. The above view is again reiterated in Yashoda v. State, 2004 (1) UP CrR 406, wherein it has been held that ‘soon before’ is pregnant with the idea of proximity test. It is not synonymous with the term immediately before. The deceased a young girl without suffering any ailment went to her matrimonial home in good heath just 15 days ago. Suddenly one day her parents came to know that she had died. Her death was, therefore, clearly in circumstances which cannot be considered to be normal. If she had died really a natural or accidental death, the appellants were the best persons to disclose the relevant facts which were solely within their knowledge. 13 22. Recently in case of Pradeep Singh v. State of Jharkhand, AIR 2007 SC 2154, the Hon’ble Apex Court has held that ‘soon before death’ is an elastic term – what is relevant is there should be a perceptible nexus between death of deceased and dowry related harassment or cruelty inflicted on her. 23. So on this terminology “soon before death”, we are convinced that the deceased was harassed on the question of dowry soon before death. This “soon before death” does not mean immediately before the death. In the present case in hand, circumstances, which are indicative that the dowry was a major subject of the concerned harassment of the deceased and she was persistently being harassed on this question till this fateful morning of 23.5.2007. 24. After scrutinizing the entire oral as well as documentary testimony on the record, this Court has not found any evidence to indicate the involvement of Smt. Pushpa Devi and Smt. Bachuli Devi even the least as well as the evidence against Dinesh and Harish, both brothers of Naveen Chandra Kandpal, to implicate them in the crime. Their role, if any, might have been to assist Naveen Chandra Kandpal in the placing of the body in the jungle, but this too is not explicit and merely on the presumption it would not be justified to punish them on the charge framed against them. This way, we do not find formidable evidence to punish Smt. Pushpa Devi, Smt. Bachuli Devi, Harish and Dinesh for the charges and we hold that the conviction as held by the court below against them is liable 14 to be set aside, whereas the conviction of Naveen Chandra Kandpal for all the charges levelled is proper and justified. 25. All told, criminal appeal no. 197/2010 is allowed and conviction and sentence as recorded by the lower court against Smt. Bachuli Devi, Smt. Pushpa Devi, Dinesh and Harish is set aside. They are set at liberty. They are on bail. They need not surrender. Their bail bonds stand discharges. Criminal appeal no. 196/2010 preferred by Naveen Chandra Kandpal fails and thus the conviction and sentence recorded by the lower court is affirmed. He is in incarceration. He will serve out the sentence as recorded by the court below. 26. Let a copy of this judgment and order be sent to the trial court for compliance as above. Let the trial court record be sent back. (Servesh Kumar Gupta, J.) (Prafulla C. Pant) 24.6.2011 24.6.2011 Prabodh