Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1570 of 2001 Old Criminal Appeal No. 1840 of 1998 Dated of Decision: 06 .05.2010 Pawan Lal …Appellant Versus State of U.P. …Respondent CORAM:- HON’BLE MR. JUSTICE B.C. KANDPAL HON’BLE MRS. JUSTICE NIRMAL YADAV Present: Mr. Lokendra Dobhal, learned counsel for the appellant. Mr. S.S. Adhikari, learned A.G.A. for the State. Nirmal Yadav, J. Accused-Pawan Lal alongwith his brother-Madan Lal and other co-accused Smt. Brahaspati Devi and Smt. Vijai Laxmi Devi stood trial for the offence punishable under Section 304-B of the Indian Penal Code, 1860 (for short IPC). However, the trial court acquitted accused Madan Lal, Smt. Brahaspati Devi and Smt. Vijay Laxmi Devi of the charges levelled against them and convicted accused-Pawan Lal husband of Darshani Devi (deceased) under Section 304-B of the I.P.C. in Sessions Trial No. 25 of 1997 vide judgment and order dated 02.09.1998 and sentenced him to undergo life imprisonment. The criminal law was set in motion on an application-dated 28.07.1996 (Ex. Ka-1) moved by complainant-Pushpa Nand, father of Darshani Devi (deceased). According to complainant, his daughter Darshani Devi (deceased) was married with accused-Pawan Lal about one and a half years prior to the occurrence i.e. up to 27th July 1996. An information was received by complainant- 2 Pushpa Nand through two persons from the village of accused that his daughter Darshani Devi (deceased) has died during the night between 27-28th July 1996. According to him, his daughter died under suspicious circumstances; therefore, he expected proper action to be taken against the in-laws of Darshani Devi (deceased). Information with regard to complaint (Ex. Ka-1) was entered in General Diary at 5:00 p.m. on 28th July 1996. Sub Inspector T.P. Malik went to the spot for preparing inquest. He prepared inquest report (Ex. Ka-7) and also prepared the other relating papers. The dead body of Darshani Devi was sealed and was handed over to Constables Gyan Lal and Rajvir Singh for taking the same to Combined Hospital, Tehri for postmortem. As per the opinion of Panches as mentioned in the inquest report the death of Darshani Devi occurred under suspicious circumstances. On 29th July 1996, complainant-Pushpa Nand moved another application (Ex. Ka-2) before Station House Officer, Chamba stating therein that he had already given the information with regard to death of his daughter under suspicious circumstances, however, while the police was preparing the inquest memo on 29th July 1996, he noticed certain contusions and abrasions on the neck of Darshani Devi (deceased). He was, therefore, confident that his daughter Darshani Devi had been murdered by her husband-Pawna Lal by throattling. On the basis of said application, Chick report (Ex. Ka-4) was registered against the accused under Section 302 of the I.P.C. The investigation was undertaken by Station House Officer Mr. P.S. Bhandari, (PW-6). He recorded the statement of complainant-Pushpa Nand and family members of accused- Pawan Lal and other witnesses under Section 161 Cr.P.C. He prepared site plan (Ex. Ka-6) on the pointing out of accused- Smt. Vijay Laxmi. On 31st July 1996, he recorded the statement of Smt. Sumitra Devi (PW-2), who stated that there was 3 demand of dowry and Darshani Devi (deceased) was subjected to cruelty by accused-Pawan Lal. The case was therefore, converted under Section 304-B of the I.P.C. The investigation was handed over to Mr. R.P. Yadav, Dy. S.P., who recorded the statements of Hira Lal, Indra Datt, Daya Nand, Pushpa Nand and Sumitra Devi on 10th August 1996. On completion of the investigation, the challan was presented and the accused was charge sheeted under Section 304-B of the I.P.C. to which he pleaded not guilty and claimed trial. In order to prove its case, the prosecution produced as many as six witnesses. Complainant-Pushpa Nand (PW-1), father, Sumitra Devi (PW-2), mother, Hira Lal (PW-3) brother of Darshani Devi (deceased), Indra Dutt (PW-4), co-villager of complainant-Pushpa Nand, Dr. M.K. Singh (PW-5) who conducted the autopsy of Darshani Devi (deceased) and the postmortem report is Ex. Ka-3 and Mr. P.S. Bhandari (PW-6) is the Investigating Officer. Dr. M.K. Singh (PW-6) conducted the autopsy on the dead body of Darshani Devi and found following: The age of the deceased was about 24 years. On external examination, the dead body was found to be of an average built female. Rigor mortis partially present in both the lower extremities, greenish discolouration in abdomen and chest was also found. Abdomen and chest were distended. Face was congested and mouth was partially opened. Toung protruded between the teeth. Both eyes were closed. Both the conjunctive were congested. Food material was coming out from both the nostrils and mouth. During of death could be 36 4 hours from postmortem. Following ante mortem injuries were found on the person of deceased: - (i) Multiple abraded contusions present on the front of neck on either side of larynx and trachea under the chin and above the middle part of neck. There are four abraded contusions on left side of front of neck, one below and the others in an area of 7 cm x 2.5 c.m., bluish in colour. There were three abraded contusions on right side of front of neck. One below and other bluish in colour. On dissection of neck, subcutaneious tissues of neck showed extra-vessation of blood beneath the abraded contusions. (ii) Multiple abrasions on posterior aspect of right elbow in an area of 2.5 c.m. x 2.5 c.m., reddish brown scab present. On internal examination, brain, larynx and both the lungs were found congested. 150 ml. Semi digested food material was present in the stomach. Large intestine was partially filled with faecal matter. Cause of death was asphyxia as a result of strangulation by throattling. When examined under Section 313 Cr.P.C. accused denied the entire incriminating evidence put by the prosecution and claimed innocence and false implication. Accused-Pawan Lal stated that he had sent information regarding the death of Darshani Devi to her parents. In defence, he produced Padam Singh as DW-1, who belongs to the village of accused. This witness stated that neither complainant-Pushpa Nand (PW-1) nor his son Hira Lal (PW-3) ever complained about cruel treatment meted out to the deceased in connection with the 5 demand of dowry. According to him, Darshani Devi (deceased) was living happily at her in-laws house. The trial court after taking into consideration the evidence and the documents available on record acquitted accused- Madan Lal, Smt. Brahaspati Devi and Smt. Vijai Laxmi Devi of the charges levelled against them and convicted accused-Pawan Lal and sentenced him as referred to paragraph-1 of the judgment. We have heard Mr. Lokendra Dobhal, learned counsel for the appellant, Mr. S.S. Adhikari, learned A.G.A. for the State and carefully gone through the material available on record. Mr. Lokendra Dobhal, learned counsel for the appellant argued that the prosecution has miserably failed to prove the death of Darshani Devi as a dowry death. He referred to the first information report (Ex. Ka-1) submitted by complainant-Pushpa Nand (PW-1), father of deceased on 28th July 1996 wherein not even a single word has been uttered about any demand of dowry by the accused, nor did he state anything about the demand of dowry in his statement recorded by the police under Section 161 Cr.P.C. It is only for the first time while deposing before the trial court, this witness levelled allegation against the appellant with regard to the demand of dowry. Similarly Sumitra Devi (PW-2), mother and Hira Lal (PW-3) brother of deceased, also did not level any allegation with regard to the demand of dowry in their statements before the police under Section 161 Cr.P.C. He referred to the statement of Sumitra Devi (PW-2) wherein she admitted that there was no demand of dowry at the time of marriage. She also levelled allegations for the first time against the accused with regard to the demand of dowry while deposing before the trial 6 court. Even Hira Lal (PW-3), brother of Darshani Devi (deceased) admitted that there was no demand of dowry at the time of marriage, however, when he went to leave his sister after the marriage on 1st July 1996 her mother-in-law kept on abusing his sister Darshani Devi (deceased) during the night. Whenever Darshani Devi (deceased) came home after the marriage she used to complain that her husband-Pawan Lal, mother-in-law and sister-in-law were harassing her and taunting that her father had not given anything in the dowry. They were making demand of a motorcycle, fridge and golden necklace. He disclosed all these facts to his mother but he as well as his mother did not disclose about the demand of dowry made by in-laws of Darshani Devi (deceased) to Pushpa Nand (PW-1) as he was a very sensitive person. Learned counsel for the appellant further argued that from their statements it is apparent that none of the family members of Darshani Devi (deceased) disclosed to anyone about the demand of dowry prior to the day of their deposition in the court. Learned counsel for the appellant further argued that Pushpa Nand (PW-1), father of Darshani Devi (deceased) had submitted different reports after the death of Darshani Devi. As per his own statement, he had submitted three complaints before the S.H.O. but he cancelled two of them submitted by him and on the basis of third one, he lodged the first information report. Learned counsel for the appellant referred to the statement of Pushpa Nand (PW-1), where he admitted that he had involved accused-Pawan Lal on the asking of S.H.O. He further pointed out from the first information report that he levelled allegations against all the accused i.e. mother-in-law, two sisters-in-law, Madan Lal, brother-in-law and husband-Pawan Lal of the deceased. However, from the second complaint i.e. Ex. Ka-2 he levelled allegations against Pawan Lal only. Learned counsel for the appellant thus, argued 7 that there was no demand of dowry at any point of time, however, after the death of Darshani Devi, her father, mother and brother have concocted a false story and implicated the accused. Learned counsel for the appellant further argued that ingredients of Section 304-B of the I.P.C. are not at all made out. According to learned counsel for the appellant there is no direct evidence to prove the prosecution case. It rests on the circumstantial evidence and chain of circumstances is not also complete and therefore, Pawan Lal husband of Darshani Devi (deceased) could not be convicted in the absence of any cogent and reliable evidence. In support of his argument the learned counsel for the appellant referred to the judgment of Apex Court in the case of Arvind Singh Vs. State of Bihar reported in [(2001) SCC (Cri) 1148] and Subramaniam Vs. State of Tamil Nadu and another reported in [(2010) 1 SCC (Cri) 1392] wherein it has been held that though circumstance that appellant husband and deceased wife had been living together and the same may be considered to be a strong circumstance, but that by alone, in the absence of any evidence of violence on the deceased, cannot be held to be conclusive. It may be difficult to arrive at a conclusion that the husband and the husband alone was responsible for commission of the crime. On the other hand, Mr. S.S. Adhikari, learned A.G.A. for the State vehemently argued that the prosecution has been able to prove basic ingredients of Section 304-B of the I.P.C. According to him, there is no dispute that Darshani Devi (deceased) died an unnatural death otherwise than under normal circumstances and death occurred within seven years of her marriage. She was subjected to harassment by her husband 8 in connection with the demand of dowry. The case, therefore, is squarely covered within the ambit of dowry death. On careful consideration of the rival submissions made by learned counsel for the parties and careful scrutiny of the evidence available on record, we find that multiple abraded contusions were present on the front portion of the neck on either side of larynx and trachea under the chin and above the middle part of neck. Four abraded contusions were also found on the left side of the front portion of the neck and three abraded contusions were found on the right side of the front portion of the neck. On dissection of neck, subcutaneious tissues of neck showed extra-vessation of blood beneath the abraded contusions. Multiple abrasions were also found the on posterior of the right elbow in an area of 2.5 c.m. x 2.5c.m. which shows that violence was used on the person of deceased. The presence of evidence of violence is alone a very strong circumstance to arrive at a conclusion that the deceased had been subjected to cruelty soon before her death. It has come in the evidence that appellant-Pawan Lal and his wife-Darshani Devi (deceased) had been living together, therefore, he and he alone would be responsible to explain the circumstances in which Darshani Devi died. Padam Singh (DW-1) has categorically stated in paragraph-5 of his statement that during the night of the occurrence accused- Pawan Lal and his wife Darshani Devi (deceased) had slept in appellant’s room. This witness was confronted with the statement made before the police wherein he stated that the death of Darshani Devi was not natural. He was also confronted with his statement before the police that accused-Pawan Lal did a very wrong thing by committing murder of his wife. 9 It is well established that the question of burden of proof where some facts are within the personal knowledge of the accused and specially where the relationship between the parties are that of husband and wife who are living within the four wall of the same house then the husband is expected to offer an explanation with regard to cause of the death of his wife. Lack of such explanation on the part of the accused- appellant itself would be most important circumstantial evidence against him. The Apex Court in the case of State of West Bengal Vs. Mir Mohammad Omar reported in [(2000) SCC (Cri) 1516] observed as under: - “31… The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilized doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty. 32. In this case, when the prosecution succeeded in establishing the aforenarrated circumstances, the court has to presume the existence of certain facts. Presumption is a course recognized by the law for the court to rely on in conditions such as this. 33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical 10 conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct, etc. in relation to the facts of the case. We have to consider the factual background of the present case in the light of the relationship between husband and the deceased. Since the wife has died under unnatural circumstances when she was in the company of her husband, he has to explain the reasons and the cause of her death. We have taken note of the medical evidence where the doctor has categorically opined that cause of death was asphyxia as a result of strangulation by throattling. Learned counsel for the appellant argued that there is no evidence that there was any demand of dowry and the deceased was subjected to cruelty or harassment or that harassment was for or in connection with the demand of dowry. The argument of learned counsel for the appellant does not appeal to us. It has come in the testimony of Sumitra Devi (PW- 2) mother as well as Hira Lal (PW-3) brother of the deceased, that Darshani Devi (deceased) was treated with the cruelty and harassed by the accused in connection with the demand of dowry. Pushpa Nand (PW-1) also stated that at the time of marriage demand of dowry was made by the accused but he could not fulfill the same. He had given single bed instead of a double bed and one golden ring against the demand of a motorcycle. The accused had demanded a golden necklace; fridge and those demands could not be fulfilled. He also stated that his daughter Darshani Devi had been telling him about harassment meted out to her on account of his (Pushpa Nand’s) inability to fulfill the demand of the accused. 11 Sumitra Devi (PW-2), mother of the deceased of course admitted that she did not disclose to her husband Pushpa Nand that Darshani Devi (deceased) had been telling her about cruel treatment meted out to her at the hands of her husband and other family members as Pushpa Nand (PW-1) was a person of very sensitive nature. However, Sumitra Devi (PW-2) as well as Hira Lal (PW-3) and Indra Dutt (PW-4) have stated in equivocal terms that Darshani Devi (deceased) was being harassed and treated with cruelty by the accused on account of non-fulfillment of the demand of dowry. The injuries found on the person of deceased clearly indicate that Darshani Devi (deceased) was subjected to cruelty soon before her death. The basic ingredients to attract the provisions of Section 304-B of the I.P.C. are as follows:- (I) the death of a woman should be caused by burns or fatal injury or otherwise than under normal circumstances; (II) such death should have occurred within seven years of her marriage; (III) she must have been subjected to cruelty or harassment by her husband or any relative of her husband; and (IV) such cruelty or harassment should be for or in connection with demand of dowry. The legislature has also introduced Section 113-B of the Evidence Act which provides that when a woman has died and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for or in connection with any demand of dowry, the court shall presume that such person had caused the dowry death. 12 A combined reading of Section 304-B of the I.P.C. and Section 113-B of the Evidence Act indicates that if a married woman dies in unnatural circumstances at her matrimonial home within seven years from her marriage and there are allegations of causing cruelty or harassment to such married woman for or in connection with demand of dowry by the husband or relatives of the husband, the case would squarely come under the dowry death and there shall be a presumption against the husband and the relatives. In the present case, we find that father, mother and brother of the deceased have categorically stated that Darshani Devi (deceased) had been disclosing to them about the cruel treatment meted out to her in connection with the demand of dowry. As discussed above, we find that the death of Darshani Devi occurred due to violence and the prosecution has established that accused-Pawan Lal was the only person in the company of Darshani Devi (deceased) at the relevant time on the fateful day. There is nothing on record to suggest that the death of Darshani Devi was suicidal rather it has been proved from the medical evidence that the death of Darshani Devi was homicidal. In our opinion, the prosecution has been successful in proving all the ingredients of the offence under Section 304- B of the I.P.C., as referred in the earlier part of the judgment beyond reasonable doubt. Learned counsel for the appellant argued that as per the statement of Pushpa Nand (PW-1), he had submitted three complaints and there are only two complaints Ex. Ka-1 and Ex. Ka-2 on the record. It has further been argued by learned counsel for the appellant that Pushpa Nand (PW-1) stated that he was asked by the S.H.O. to name accused-Pawan Lal and this 13 fact clearly shows that the father of the deceased had implicated accused-Pawan Lal on the asking of the S.H.O. otherwise he had simply stated in Ex. Ka-1 that his daughter was disturbed due to behaviour of her in-laws. He did not level any specific allegations against husband-Pawan Lal or other relatives. The argument of learned counsel for the appellant does not appear to have any force. Admittedly he had submitted two applications Ex. Ka-1 and Ex. Ka-2. Ex. Ka-1 was submitted on 28th July 1996 immediately after receiving the information about the death of his daughter, Ex. Ka-2 was submitted on 29th July 1996. However, he has given the explanation with regard to the second application having been submitted. According to him, he had noticed blue marks on the neck of his daughter when inquest was being prepared by the police and thereafter he became confident that death of his daughter was homicidal. Earlier he had mentioned in the application that his daughter had died in suspicious circumstances. Therefore, we do not find any conflict in the application Ex. Ka-1 and Ex. Ka-2 rather Ex. Ka-1 and Ex. Ka-2 are supplementary to each other. Learned counsel for the appellant argued that all the witnesses have levelled similar allegations against the other co- accused, namely, Madan Lal, Smt. Brahaspati Devi and Smt. Vijai Laxmi Devi, who have been acquitted by the learned trial court , therefore, on the same set of circumstances, accused- Pawan Lal could not have been convicted. We do not agree with the argument of learned counsel for the appellant as the trial court in paragraph-13 of the judgment has given the reasons for acquittal of other co-accused. It has been admitted by Sumitra Devi (PW-2) that Brahaspati Devi was at her parent’s house and she had gone there about twenty days prior to the occurrence. She also admitted that other co-accused did not demand anything but they stated that some articles were not given in the marriage and the demand of dowry was made only by accused- 14 Pawan Lal. There is lack of evidence against the other co- accused with regard to demand of dowry and any harassment or cruelty having been meted out by them to Darshani Devi soon before her death and therefore, the set of circumstances against them is not similar to the evidence available on record against accused-Pawan Lal. Learned counsel for the appellant argued that sentence of life imprisonment awarded by the learned trial court is quite excessive, therefore, lenient view be taken against the appellant and sentence be reduced. On the other hand learned A.G.A. stated that it has been well proved that it was the appellant only who had caused such injuries which were sufficient to cause death in ordinary course of nature and the accused-Pawan Lal had committed a heinous crime by causing the death of his wife Darshani Devi in connection with the demand of dowry. We do not agree with the argument raised by learned counsel for the appellant as there are no mitigating circumstances to reduce the sentence awarded by the learned trial court. We find no merit in the appeal and the same is dismissed. Conviction and sentence awarded against the appellant is affirmed. The appellant is on