IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Chapter VIII, Rule 32(2)(b) Description of Case Date of decision : 26.02.2008 Criminal Appeal No. 119 of 2003 ALONGWITH Criminal Appeal No. 117 of 2003 A.F.R. (Approved for Reporting) Not approved for Reporting Date: 26.02.2008 (Initials of Judge) Note: Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature Judgment Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 119 of 2003 Ravi Kant S/o Sri Niwas R/o State Bank Colony Shant Kutir, Adhoyewala Raipur Road, District Dehradun. …….Appellant. Versus State of Uttaranchal …………..Respondent. Smt. Pushpa Joshi, learned counsel for the appellant. Shri Amit Bhatt, learned A.G.A. for the State. ALONGWITH Criminal Appeal No. 117 of 2003 1. Shree Kanth 2. Shashi Kant Both S/o Sri Niwas 3. Sri Niwas, S/o Kishan Lal Sharma R/o State Bank Colony, Shant Kutir Adhoyewala, Rajpur Road District Dehradun. …….Appellants Versus State of Uttaranchal ……….Respondent. Smt. Pushpa Joshi, learned counsel for the appellants. Shri Amit Bhatt, learned A.G.A. for the State. Coram:Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. Per:-Hon’ble Prafulla C. Pant, J. These two appeals, preferred under Section 374 of Code of Criminal Procedure, 1973 (herein after referred as Cr.P.C.), are directed against the same judgment and order dated 25.03.2003, passed by learned Sessions Judge, Dehradun, in Sessions Trial No. 84 of 1998 and Sessions Trial No. 24 of 1999, whereby accused/appellants Ravi Kant, Shree Kant, Shashi Kant and Sri Niwas, are convicted under Section 498 A of Indian Penal Code, 1860 (herein after referred as I.P.C.), 304 B I.P.C. and one punishable under Section 4 of Dowry Prohibition Act, 1961. Each of the convict/appellants is sentenced to undergo imprisonment for life and to pay fine of Rs. 5,000/- under Section 304 B I.P.C., to rigorous imprisonment for a period of one year and to pay fine of Rs. 1,000/- under Section 498 A I.P.C., and rigorous imprisonment for a period of one year and to pay fine of Rs. 2,000/- under Section 4 of Dowry Prohibition Act, 1961. 2. Heard learned counsel for the parties and perused the record. 3. Prosecution story in brief is that Smt. Ujwala Upadhyay (deceased) got married to accused/appellant Ravi Kant on 28.01.1995. On 10.02.1998, she lodged a report (Ext. A-5) with police station Raipur, Dehradun, that on 07.02.1998, she was turned out by the accused/appellants from her house and was made to go to her parents’ house. When her parents asked her to live in her husband’s house, she came back there on 10.02.1998, but the accused/appellants did not allow her to enter in the house evenafter the intervention by the neighbours. Somehow after intervention by police and the neighbours, Ujwala Upadhyay (deceased) was allowed to stay in the house of her husband. However, on 25.02.1998, she was found dead. On 26.02.1998, at 8:30 a.m. when P.W. 1 Krishna Kaul, mother of the deceased received the information on phone about death of her daughter, she came to Dehradun, and lodged First Information Report (Ext. A-6) at 3:10 p.m. on that very day with police station Raipur. In which it is alleged by her that deceased was subjected to cruelty by her husband-Ravi Kant, mother-in-law Padma Devi, father-in-law Sri Niwas, brother-in-law Shri Kant (Jeth) and brother in law- Shashi Kant (Devar), for non fulfilment of demand of dowry. She further alleged that deceased used to complain her through letters and phones about the cruelty committed by her in-laws with regard to which complaints were also made to the police. She further reported to the police that after Ujwala (deceased) made complaint to the police on 10.02.1998, her husband was arrested and thereafter a compromise was entered into and the accused/appellants promised not to harass her. Lastly, it is alleged in the First Information Report that on 25.02.1998, the in-laws of Ujwala have strangulated her with a SAARI and hanged her. On the basis of the report (Ext. A-6) of P.W. 1 Krishna Kaul, crime No. 17 of 1998, was registered by P.S. Raipur, against accused/appellants Ravi Kant, Sri Niwas, Smt. Padma Devi, Sri Kant and Shashi Kant, relating to offences punishable under Section 498 A and 304 B I.P.C. P.W. 9 Surendra Singh Chauhan, C.O. City, Dehradun, started the investigation of the case. Said Investigating Officer accompanied witi P.W. 7 Sub-Inspector Mohd. Waseem Siddique, went to the spot, took the dead body of Ujwala into his possession and prepared inquest report (Ext. A-22) and other necessary papers connected therewith. P.W. 7 Mohd. Waseem further prepared the memorandum (Ext. A-19) of the broken bangles, found at the spot, memorandum (Ext. A-21) of SAARI by which the dead body was hanging. Before preparing inquest report of the dead body, P.W. 11 Ashish Pandey, a Photographer, P.W. 10 Dr. D.N, Dhyani, Medical Officer of Doon Hospital, Dehradun, conducted the post mortem examination on 26.02.1998 on the dead body of the deceased, at about 3:45 p.m., and prepared autopsy report (Ext. A-27). The Medical Officer opined that cause of death was asphyxia as a result of ante mortem hanging. P.W. 9 S.S. Chauhan, collected the letter (Ext. A-1), written by the deceased to her mother, interrogated the witnesses, prepared the site plan (Ext. A-24). Subsequently, the investigation was taken up by P.W. 8 Smt. Kalpana Saxena, Circle Officer, who after completing the investigation, submitted charge sheet (Ext. A-23) against all the five accused namely, Ravi Kant, Sri Kant, Shashi Kant, Padma Devi and Sri Niwas, relating to offences punishable under Section 498 a, 304 B I.P.C. and one punishable under Section 3/4 Dowry Prohibition Act, 1961. 4. The Judicial Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 Cr.P.C., committed case to the court of Sessions, for trial. On 10.09.1998, after hearing the parties, learned Sessions Judge, Dehradun, framed charge of offences punishable under Sections 498 A I.P.C., 304 B I.P.C. and one punishable under Section 4 of Dowry Prohibition Act, 1961. He further framed alternative charge of offence punishable under Section 147 I.P.C. and one punishable under Section 302 read with Section 149 I.P.C. All the five accused namely, Ravi Kant, Sri Kant, Shashi Kant, Padma and Sri Niwas, pleaded not guilty and claimed to be tried. It appears that during trial, accused Padma Devi, mother- in-law of the deceased died, and her trial stood abated. The case proceeded against other accused, who are the appellants before this Court. Prosecution got examined before trial court P.W. 1- Smt. Krishna Kaul (complainant and mother of the deceased), P.W. 2 Rajeev Lochan Kaul (brother of the deceased), P.W. 3 Vimla Khanna (hostile), P.W. 4 H.C. Khanna (hostile), P.W. 5 Head Constable Bhuwa Nand (who proved the extract of general diary, relating to the entry of First Information Report dated 10.02.1998, lodged at police station by the deceased), P.W. 6 Constable Mohan Singh Bisht, (who proved extract of general diary relating to the entry of First Information Report dated 26.02.1998), P.W. 7 Sub Inspector Mohd. Waseem Siddique (who investigated the crime, registered on the basis of the report dated 10.02.1998, lodged by the deceased and also proved the document, which he prepared on inspection of the spot by Investigating Officer S.S. Chauhan, in crime No. 16 of 1998), P.W. 8 Kalpana Saxena (Investigating Officer who completed the investigation), P.W. 9 Surendra Singh Chauhan (who started the investigation), P.W. 10 Dr. D.N. Dhyani (who conducted autopsy on the dead body), P.W. 11 Ashish Pandey (who photographed the hanging dead body) and P.W. 12 Gajendra Tripathi (witness of the inquest report, recovery of saari and chappals from the spot). Apart from this, an affidavit of formal witness of Hanuman Singh was also filed, who proved memorandum (Ext. A-19) relating to the collected broken bangles. The defence was given opportunity, but did not cross examine this deponent-Hanuman Singh. Prosecution evidence was put to the accused under Section 313 Cr.P.C. regarding which they pleaded the same to be false. Only this much is admitted by them that Ujwala (deceased) got married to Ravi Kant on 28.01.1995. At the end of the reply under Section 313 Cr.P.C., the accused stated that Ujwala was mentally a weak woman. She used to live separately with her husband in the first floor. Accused/appellants have alleged that Ujwala committed suicide. No oral evidence is adduced by the defence. After hearing the parties, the trial court found all the four accused namely Ravi Kant, Sri Kant, Shashi Kant and Sri Niwas, guilty of offences punishable under Sections 498 A and 304 B I.P.C and one punishable under Section 3 of Dowry Prohibition Act, 1961. However, accused were acquitted by the trial court of the charge of offence punishable under Section 3 of the Dowry Prohibition Act, 1961. After hearing on sentence, each of the convict, is sentenced to imprisonment for life under Section 304 B I.P.C. and to pay fine of Rs. 5,000/-, to rigorous imprisonment for a period of one year and to pay fine of Rs.1000/- under Section 498A I.P.C. , to rigorous imprisonment for a period of one year and directed to pay fine of Rs. 2,000/- under Section 4 of Dowry Prohibition Act, 1961. Aggrieved by said judgment and order dated 25.03.2003, passed by learned Sessions Judge, Dehradun, in Sessions Trial No. 84 of 1998 and Sessions Trial No. 24 of 1999, criminal appeal No. 119 of 2003, is filed by the convict Ravi Kant (husband of the deceased) and criminal appeal No.117 of 2003, is filed by remaining three convicts namely Shri Kant, brother-in-law (Jeth), Shashi Kant brother-in-law (Devar) and Sri Niwas (father-in-law). 5. Before further discussions, we think it just and proper to mention the ante mortem injuries recorded by P.W. 10 Dr. D.N. Dhyani, who prepared autopsy report (Ext. A-27) on 26.02.1998, which are being reproduced below:- Legature mark present on the neck, above the thyroid, 2cm below the chin. Mark 25 cm long around the neck, on the back leaving space of 7cm on the left lateral aspect of neck and partial to the mandible line. On cutting the tissue is shining white (sub-cutaneous tissues). No other mark of external injury seen. 6. From the statement of P.W. 10 Dr. D.N. Dhyani, read with autopsy report (Ext. A-27), it is established that the deceased has died due to asphyxia, as a result of ante mortem hanging. As such, her death is unnatural. It is also established on record that Ujwala has died within 7 years of her marriage, as admittedly she got married on 28.01.1995, with accused/appellant Ravi Kant and she was found dead on 26.02.1998. Now this Court has to see whether the deceased was subjected to cruelty or harassment by the accused/appellants or not. To prove said fact, the prosecution has heavily relied on the report dated 10.02.1998 (Ext. A-5) lodged by the deceased against the accused/appellants, 15 days before her death with P.S. Raipur and the statements of P.W. 1 Smt. Krishna Kaul (mother of the deceased) and that of P.W. 2 Rajeev Lochan Kaul (brother of the deceased). 7. On behalf of the defence, our attention is drawn to letter dated 20.09.1997 (Ext. A-1), written by the deceased to her mother in which though the deceased has complained that her husband and mother-in-law ill- treated her, this letter does not say anything about the cruelty being committed or harassment being made by brothers-in-law or father-in-law. It is pertinent to mention here that accused/appellants-Sri Kant, Shashi Kant, are brothers-in-law and accused/appellant Sri Niwas is father-in-law of the deceased. As such, referring to this letter, produced by the prosecution learned counsel for the defence argued that the implication of the three accused/appellants namely Sri Kant, Shashi Kant and Sri Niwas, is false. 8. Also, our attention is further drawn on behalf of the appellants to report dated 25.01.1996, submitted by P.W. 1 Krishna Kaul to Cricle Officer, Amroha, which is Ext. A-3 on the record. This repot is also produced and proved by the prosecution to support their case. However, on close examination of this report, it is clear that allegations of harassment of the deceased are made only as against/appellant Ravi Kant (husband of the deceased) and not against the other relatives. In said report there is specific mention of demand of Rs. 20,000/- by the husband of the deceased. 9. Smt. Pushpa Joshi, learned counsel for the appellants further pointed out the replies given by the accused/appellants in their statement under Section 313 Cr.P.C. in which the accused/appellants have stated that deceased and her husband (Ravi Kant) were living separately in the first floor. She further drew attention of this Court to copy of daily newspaper ‘Amar Ujala’ dated 01.02.1998, Dehradun Edition, in which accused/appellant Sri Niwas (father-in-law of the deceased) had already got published a notice that he is dissociating himself from his son Ravi Kant and his wife. Said paper is paper No. 12 A/2 in the lower court record. On its basis it is argued that the implication of accused/appellants Sri Kant, Shashi Kant and Sri Niwas is nothing but false. 10. Having gone through the contents of the letter dated 20.09.1997 (Ext. A-1), written by Ujwala (deceased) to her mother and copy of report dated 25.01.1996 (Ext. A-3), submitted by P.W. 1 Krishna Kaul to Circle Officer, Amroha, we find substance in the argument of learned counsel for the appellants that deceased made complaints of harassment only as against her husband-Ravi Kant (accused/appellant) and her mother-in-law (who has already died during trial). But no allegations of cruelty or that of harassment for non fulfilment of demand of dowry, appear to have been made against the other accused/appellants namely Sri Kant, Shashi Kant and Sri Niwas before February 1998. As such, there appears reasonable doubt as to their involvement in commission of offence of which they are charged. Our assessment in this regard not only gets support from documents Ext. A-1 and Ext. A- 3, filed by the prosecution itself but also from the examination in chief of P.W. 2 Rajeev Lochan Kaul, who has alleged that Ujwala used to complain that her mother-in-law, husband, brother-in-law Ravi Kant used to harass her for non fulfilment of dowry. He had not named Sri Kant, brother-in-law (Jeth), Shashi Kant, brother-in-law (Devar) and Sri Niwas (father-in-law) for harassing the deceased for non fulfilment of dowry in his examination in chief. In the circumstances, we are of the view that the trial court has erred in law in holding as against the above three that charge of offences punishable under Section 304 B I.P.c. 498 A I.P.C. and the offence punishable under Section 4 of Dowry Prohibition Act, 1961, stood proved. In our opinion as against the accused Sri Kant, Shashi Kant and Sri Niwas, for the reasons as discussed above, it cannot be said that charge of offences punishable under Section 498 A I.P.C and 304 B I.P.C. and one punishable under Section 4 of Dowry Prohibition Act, 1961, is proved beyond reasonable doubt. They are entitled to the benefit of reasonable doubt as to their involvement in commission of offences alleged against them. In Sakharan and another Vs. State of Maharashtra 2004 Supreme Court Cases (Cri) Supp 420, the Apex Court has held that where in the cases of dowry death, relatives of husband are implicated, overt acts attributed, are required to be proved beyond reasonable doubt. 11. But as far as accused/appellant Ravi Kant is concerned, there is consistent evidence on record not only of P.W. 1 Smt. Krishna Kaul (mother of the deceased) but also of P.W. 2 Rajeev Lochan Kaul, brother of the deceased. Report (Ext. A-5) lodged in the year 1998 by deceased with police station Raipur, fifteen days before her death, as to her harassment for non fulfilment of dowry, gets corroborated as against husband from letter (Ext. A-1) written by her on 27.09.1997 to her mother, and also from the report dated 25.01.1996 (Ext. A-3), lodged by P.W. 1 Krishna Kaul with Circle Officer Amroha. As such, the factum of cruelty committed by Ravi Kant against her wife Ujwala (deceased) and harassment made by him of his wife for non fulfilment of demand of dowry, is proved beyond reasonable doubt. It is also established on record from evidence discussed above that the deceased died of unnatural death due to cruelty committed by her husband for non fulfilment of demand of dowry. We agree with the finding recorded by the trial court as against the accused/appellant Ravi Kant in respect of the charges punishable under Sections 498 A, 304 I.P.C. and one punishable under Section 4 of Dowry Prohibition Act, 1961 that he is guilty of the same. 12. For the reasons, as discussed above, the criminal appeal No. 117 of 2003, filed by accused/appellants Sri Kant, Shashi Kant and Sri Niwas, deserves to be allowed but criminal appeal No. 119 of 2003, filed by accused/appellant Ravi Kant is liable to be dismissed. Accordingly, impugned judgment and order dated 25.03.2003, passed by learned Sessions Judge, Dehradun, in Sessions Trial No. 84 of 1998, is set aside to the extent it records conviction of accused/appellants Sri Kant, Shashi Kant and Sri Niwas. Sentences awarded against them are also set aside. They are on bail. They need not to surrender. However, the conviction and sentences recorded as against accused/appellant Ravi Kant, the order passed by the trial court is affirmed. Registry is directed to send the information as to the dismissal of the appeal of Ravi Kant to the Superintendent, District Jail, where the convict is serving out the sentence. (Dharam Veer, J.) (Prafulla C. Pant, J.) Dt. 26.02.2008 Sweta