RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.283 OF 2001 (OLD NO.568/1993) Baldev & two others ……… Appellants Versus The State ……… Respondent Dated: May 11, 2009 Sri J.C. Gupta, learned Sr. Counsel assisted by Sri Anuraj Tomar, learned counsel for the appellants Sri M.A. Khan, learned brief holder for the State HON. DHARAM VEER, J. This criminal appeal, preferred by the appellants u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 18.2.1993 passed by Additional Sessions Judge/Special Judge Anti- corruption, Dehradun in Sessions Trial No.25/89, State Vs. Baldev and others, whereby the learned Additional Sessions Judge/Special Judge Anti-corruption convicted the accused/appellants, namely, Baldev, Smt. Sant Kaur and Manohar Singh under Sections 304-B and 498-A of Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.). The accused Baldev was sentenced to ten years’ R.I. u/s 304-B and each of the accused/appellants, namely, Smt. Sant Kaur and Manohar Singh were sentenced to seven years’ R.I. u/s 304-B. However, the co-accused persons Pritam and Jogendra alias Pummy were acquitted of the charge levelled against them by the trial court. 2. I have heard Sri J.C. Gupta, learned Sr. counsel assisted by Sri Anuraj Tomar, learned counsel for the appellants and Sri M.A. Khan, learned brief holder 2 for the State. Perused the entire material available on record. 3. In brief, the prosecution case is that Surjan Singh (P.W.1) lodged the report at Police Station Kotwali, District Dehradun with the averments that his sister Kulwant Kaur (deceased) was married to the appellant/accused Baldev Singh on 14.4.1985. In the marriage, about Rs.1.00 Lac dowry was given. After the marriage, the accused/appellants Baldev, Smt. Sant Kaur and Manohar Singh and the co-accused Pritam Singh and Pummy started harassing her by saying that she has not brought dowry of their choice and she has brought less dowry. Whenever Kulwant Kaur (deceased) came to her parental house, she used to complain about her in-laws then they (Surjan Singh and his family members) used to persuade her that everything will be alright in future. About one year before, the accused Baldev came to him at Shimla and demanded money to purchase a scooter. They gave Rs.2,000/- for the scooter and also booked a scooter at Shimla. Even after that the accused/appellants continued their demand of money. About 1¼ years before, Kulwant Kaur (deceased) gave birth to a son at Dehradun. On this, his brother Gurcharan (P.W.7) went to her in-laws house with clothes, etc. then the accused/appellants and the co- accused (acquitted by the trial court) abused his brother and also asked what he (Gurcharan) has given in dowry. The accused/appellants and co-accused also thrown his sister’s child in front of his brother and said either take his sister and her child from their house or send Rs.50,000/-. It was also alleged that after birth of child, his sister was continuously subjected to harassment for the demand of Rs.30,000/- which the accused Baldev and his family members had spend in the marriage. On 3 6.11.1985 the accused/appellants and the co-accused snatched the ornaments of Kulwant Kaur (deceased) and sold them. On 28/29.12.1985, the accused/appellant Baldev came to Shimla and made a demand of Rs.30,000/- for purchasing a plot. He (accused Baldev) also gave the letter, written by his sister, on the dictation of his parents. When they (Surjan Singh and his family members) showed their inability, then the accused threatened them that if they want life of Kulwant then they will have to pay Rs.30,000/-. It was also alleged that when the accused/appellants had thrown the child in front of his brother at that time they have also ousted his sister from the house. Then his sister stayed in the house of Baldev’s cousin brother. Thereafter, Panchayat was held in which Kishan Nagpal, Gurdayal Kukreja (P.W.3), Sunder Singh Narang and some other people were included. There the in-laws of his sister apologized and did a promise of not demanding dowry in future and also of not harassing Kulwant Kaur (deceased). After that her in-laws took her along with them but even after that they continued harassing her. In the last week of April 1987, the deceased Kulwant Kaur came to Shimla and told about the harassment being caused to her by her in-laws. She also told them that her in-laws are saying that if they (her parents) will not give Rs.30,000/- cash then they will found her dead body. On 27.5.1987, his father came to Dehradun to leave Kulwant Kaur and depart for Shimla on 5.6.1987. On that day also, his sister told his father that the intention of her in-laws is not good and they will kill her. His father persuaded her that everything will be alright. It is further alleged, that on 5.6.1987 in the daytime, in-laws of his sister committed her murder by administered poison. They got this information through telephone at Shimla. On this, he reached Dehradun at 09:00 P:M in the night and there he came to know that 4 his sister had died at 11:10 A:M. With the above-said averments, the F.I.R. was lodged by Surjan Singh (P.W.1) at Police Station Cantt, District Dehradun on 6.6.1987 at 9:05 A:M. That F.I.R. is Ext.Ka-1. On the basis of F.I.R. (Ext.Ka-1), Chik F.I.R. was prepared by Head Mohirror Mahendra Singh. That Chik F.I.R. is Ext.Ka-14. The necessary entries were also made in the G.D., carbon copy of which is Ext.Ka-15. Initially, the investigation of this case was entrusted to Sub Inspector Ompal Singh (C.W.1). Later on it was transferred to Deputy S.P. Jeevan Chand Pandey. The deceased had died on 5.6.1987. On the same day, inquest report was prepared, which is Ext.Ka-4. Along with the inquest report, Police Form No.13 (Ext.Ka-6), sketch of the dead body (Ext.Ka-7), letter to Inspector, Police Line (Ext.Ka-8), letter to CMO for conducting the postmortem (Ext.Ka-9) and specimen of seal (Ext.Ka-10), were also prepared. Post-mortem examination of the dead body of the deceased was conducted on 5.6.1987 at 4:15 P:M by Dr. M.K. Diwedi (P.W.5), Senior Pathologist, Doon Hospital, Dehradun. Thereafter, the post-mortem report was prepared, which is Ext.Ka-5. During the course of investigation, the I.O. recorded the statement of the witnesses and collected the necessary papers. He also inspected the place of occurrence and prepared the site-plan. That site-plan is Ext.Ka-11. After completing the investigation, the I.O. filed the charge sheet against the accused/appellants, Baldev, Manohar Singh and Smt. Sant Kaur and the co- accused persons Pritam and Jogendra (acquitted by the trial court). That charge sheet is Ext.Ka-13. 4. Learned Chief Judicial Magistrate, Dehradun committed the case to the court of Sessions on 14.2.1989 after giving necessary copies to the accused/appellants and the co-accused persons, as provided u/s 207 Cr.P.C. 5 5. On 10.11.1989, learned IInd Additional Sessions Judge, Dehradun framed the charge of offence punishable under Sections 304-B and 498-A against the accused/appellants and the co-accused persons (acquitted by the trial court). The charge was read over and explained to the accused/appellants and the co- accused persons, who pleaded not guilty and claimed to be tried. 6. In order to prove its case, the prosecution has examined P.W.1 Surjan Singh-complainant of the case and brother of the deceased, P.W.2 Bayant Singh-father of the deceased, P.W.3 Gurdayal Singh-member of the Panchayat, P.W.4 Ameer Chand-witness of the inquest report, P.W.5 Dr. M.K. Diwedi, who conducted the post- mortem of the dead body of the deceased, P.W.6 S.I. Omveer Singh, who has prepared the inquest report (Ext.Ka-4) and P.W.7 Gurcharan-brother of the deceased. 7. Thereafter, the statement of the accused/appellants and the co-accused persons (acquitted by the trial court) were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who have denied the allegations made against them. In defence, they have filed the letters and documents Ext.Kha-1 to Ext.Kha-46, as documentary evidence and in oral evidence, D.W.1 Dr. Anjana Sen, D.W.2 Dr. K.P. Singh, D.W.3 Abdul Bari, D.W.4 Dr. S.M. Sehgal, D.W.5 Guru Bachan Singh, D.W.6 Janki Das Kukreja and D.W.7 Radhakrishnan were examined. 8. Sub Inspector Om Pal Singh was also been examined as C.W.1. 6 9. After appreciating the entire evidence available on record and hearing learned counsel for the parties, learned Additional Sessions Judge, Dehradun vide his judgment and order dated 18.2.1993 convicted and sentenced the accused/appellants as stated above. Against the aforesaid judgment and order, the accused/appellants have preferred the present appeal. 10. Before further discussion, it is pertinent to mention that the post-mortem of the deceased was conducted by Dr. M.K. Diwedi (P.W.5), Sr. Pathologist, Doon Hospital, Dehradun on 5.6.1987 at 04:15 P:M. As per the post-mortem report (Ext.Ka-5), the medical officer has opined that since the cause of death could not be ascertained hence viscera was preserved. 11. To prove the postmortem report (Ext.Ka-5), the prosecution has examined Dr. M.K. Diwedi (P.W.5), who has stated that on 5.6.1987 he was posted as Senior Pathologist at Doon Hospital. On that day at 04:15 P:M the dead body of the deceased was brought for post- mortem which was sent by S.O. Kotwali in sealed condition through constables Subhash Chand and Magan Singh. The deceased was about 23 years old and the death was occurred about six hours before. In the internal examination, both the chambers of heart were filled with blood and its weight was found 220 gm. 60 g food material was found in the stomach from which smell of Tik 20 or finit was coming. Same smell was coming from the small intestine. Faecal matter and gases were found in the large intestine. Since the cause of death could not be ascertained hence the viscera was preserved. He has proved the post-mortem report (Ext.Ka-5). 7 12. Further to prove its case, the prosecution has examined P.W.1 Surjan Singh, who has stated that the deceased Kulwant Kaur was his younger sister, whose marriage was solemnized with the accused/appellant Baldev on 14.4.1985. He had spent about Rs.1.00 Lac in the marriage. After the marriage, the accused/appellants, Baldev, Manohar, Sant Kaur and the co-accused Pritam and Pummy started harassing by saying that she has brought less dowry and even the dowry which she has brought is not of their choice. His sister always used to complain about the same facts. He had given Rs.2,000/- to the accused/appellant Baldev and had booked scooter for him at Shimla but even after that her in-laws were harassing her. In February 1986, Kulwant Kaur (deceased) had given birth to a son. On this, his brother Gurcharan (P.W.7) went to house of his sister along with some articles then the accused/appellants and the co- accused abused him and demanded Rs.50,000/-. On his refusal to give the same, they thrown the child and ousted his sister Kulwant Kaur (deceased) from the house. Then his brother took Kulwant Kaur in the house of Gur Bachan-Baldev’s cousin brother. Thereafter, his brother informed him through telephone and told about the behaviour of the accused/appellant Baldev and his family members. After getting this information, he came to Dehradun. After reaching Dehradun, they called the Panchayat of the community in which Kishan Singh, Pandit Dhulichand, Sunder Singh Narang, Guru Dayal and some other people were included. There the accused/appellants and the co-accused (acquitted by the trial court) apologized and did a promise of not demanding dowry in future and also of harassing his sister Kulwant Kaur. After that the accused/appellants and the co-accused took the deceased with them but even after that, the accused/appellants did not stop 8 harassing his sister. In the last week of April, 1987 his sister (deceased) came to Shimla. She told him that the accused/appellants are harassing her and are demanding Rs.30,000/- which her in-laws had spent in the marriage. On this, they convinced her that everything will be alright in future. In the last week of May, his father went to Dehradun to leave his sister at her in-laws house. On 5.6.1987, his father was going to Shimla from Dehradun. On the same day at about 11- 11:30 in the daytime he got the information that his sister has died. On this information, he alongwith his wife Inder Kaur, brother Gurcharan and sister-in-law (BABHI) Basant Kaur went to Dehradun by taxi. While going towards Dehradun they stopped their taxi at Kumar Hatti because they had received the information that his father is coming from Dehradun by Semi Deluxe bus. At about 02:00 P:M, the bus by which his father was coming arrived at Kumar Hatti. Then he informed his father about the death of his sister and after that all of them went to Dehradun. At about 09-9:30 P:M they reached Dehradun and went to the house of the accused/appellant Baldev where they saw the dead body of Kulwant Kaur lying in the open space. 8-10 ladies and some other people were present near the dead body, who were also their relatives. These people told them that the accused/appellants has told them that Kulwant Kaur has committed suicide by consuming poison. After seeing the dead body of the Kulwant, his father’s condition became serious. Then he took his father to Gurdayal’s house. Next day he lodged the report of the above-said incident. That report is Ext.Ka-1. He deposed that in the month of December 1985, the accused/appellant Baldev came to Shimla and demanded Rs.30,000/- for purchasing a plot. When he and his family members showed their inability, then the accused Baldev 9 threatened them that he will continue harassing Kulwant Kaur. In December 1985, his sister told him that the accused Baldev has sold her ornaments after snatching it from her. She also showed the paper of selling the ornaments which the shopkeeper had given to her husband. He also deposed that when the accused/appellant Baldev had come to demand Rs.30,000/- then he had also given letter, written by sister Anju on the direction of her father Manohar Singh. That letter is Ext.Ka-3. In the cross-examination, he has stated that the accused/appellant Manohar Singh was employed at Faridabad where he was living with his wife. Before 3-4 months of the said incident, the accused/appellant Manohar Singh had come to Dehradun after taking retirement. He further stated that the letters Ext.Kha-1 to Kha-26 are in the handwriting of the deceased and the letters Ext.Kha-27 to Kha-33 are written by his sister Amrit. Letters Ext.Kha-34 and Kha-35 are written by him. He has stated that the accused/appellants has administered poison to his sister. He is saying so because the accused/appellants were torturing his sister for the demand of dowry. He has denied the fact this his sister was ill. He has stated that the letter Ext.Kha-36 is written by him and the letter Ext.Kha-37 is written by his sister. 13. P.W.2 is Bayant Singh, who has stated that his daughter was married to the accused/appellant Baldev in April, 1985. After the marriage, behaviour of the accused/appellant Baldev was bad towards his daughter. The accused/appellant Baldev used to harass his daughter for the demand of money. He used to demand Rs.50,000/- which he had spent in the marriage. In December, the accused/appellant Baldev 10 came to Shimla and demanded money. He (accused Baldev) also brought a letter which was written by his sister. The accused/appellant said that his father has demanded Rs.30,000/-. He further stated that his son has gone to brought Kulwant (deceased) for the marriage and she had come to attend the marriage. The accused/appellant Baldev had also came with her and both of them stayed there for two or three days. In February 1986, Kulwant (deceased) had given birth to a son then Gurcharan (P.W.7) had taken clothes for them. When Gurcharan returned Shimla then he told that the accused/appellants Baldev, his mother and the co- accused Pritam and Pummy bickered with him for the demand of money. His son told him that they were demanding Rs.30,000/- and had warned him that if they would not pay the said amount then ill-treatment towards Kulwant (deceased) will remain same. After that his son took his daughter in the house of Baldev’s cousin brother and the Panchayat of the community was called. In the year 1987, the accused/appellant Baldev and Kulwant (deceased) came to Shimla and demanded money. On his refusal, the accused left his daughter in his house. Then he alongwith Kulwant came to Dehradun and left his daughter at Baldev’s house and requested the accused/appellant Baldev to keep his daughter in proper manner. Thereafter he went to Chakrata. When he came back from Chakrata his daughter told him that they are harassing her. She also told him that that they will kill her. On the same day i.e. on 5.6.1987 at 7:25 A:M he depart for Shimla. While going towards Shimla when he reached Kumar Hatti, his sons Surjan Singh (P.W.1) and Gurcharan Singh (P.W.7) met him and informed him about the death of his daughter. Then he alongwith his sons came to Dehradun. When he reached there, he saw the dead body of his daughter lying in the courtyard. 11 When he had gone from Dehradun his daughter had worn Firoji colour clothes and when he saw the dead body then he saw brown colour clothes. After that his condition became serious and his sons took him to Gurudayal’s (P.W.3) house. 14. P.W.3 is Gurudayal, who has stated that the marriage of the appellant/accused Baldev and the deceased Kulwant had taken place at Shimla and he is familiar with the family of the deceased. The accused/appellant Baldev and the deceased were annoyed with each other due to demand of dowry. The accused Baldev used to demand dowry. In February 1986, Kulwant (deceased) gave birth to a son. On this, Gurcharan Singh (P.W.7) came from Shimla. In the night, Gurcharan came to his house and told him that he has left his sister in the house of her brother-in-law (DEVAR) and the accused/appellants and the co-accused have ousted her from the house. He also told him that the accused/appellant Baldev and his parents are demanding Rs.50,000/- and the accused/appellants also thrown clothes which he brought for Kulwant’s child. After that Gurcharan went to the brother-in-law’s house of his sister. Next day, Panchayat held at 05:00 P:M in which he, Tarachand, Kukreja, Kishan Nagpal, Sunder Singh Narang and Sardar Bhagwan Singh and Pandit Dhulichand were included. The accused/appellants Manohar Singh, Baldev, Baldev’s mother and the co- accused were present there. Surjan Singh (P.W.1) had also come from Shimla. In the Panchayat, the accused/appellants and the co-accused apologized and also did promise for good behaviour in future. After that they (accused/appellants) took Kulwant with them. In the year 1987, Surjan Singh-brother of Kulwant (deceased) came to him and told him that Kulwant has died. Then 12 he took him (Surjan Singh) in the house of the accused/appellants. Surjan Singh (P.W.1) told him that his sister has died due to consumption of poison. 15. P.W.4 is Ameer Chand, who has stated that on the death of Kulwant Kaur, the police prepared the inquest report and he also signed on it. He has proved the inquest report Ext.Ka-4. 16. P.W.6 is S.I. Omveer Singh, who has stated that on 5.6.1987, he was posted as S.I. at Police Station Kotwali, Dehradun. On that day at 02:30 P:M, after appointing the Panchas Tara Chand, Ameer Chand, Sant Ram, Kishan Singh and Charan Singh, he prepared the inquest report (Ext.Ka-4) and also inspected the dead body of the deceased. Froth was coming out from the nose of the deceased. Along with the inquest report, he also prepared the Challan Lash (Ext.Ka-6), sketch of the dead body (Ext.Ka-7), letter to R.I. (Ext.Ka-8) and C.M.O. (Ext.Ka-9) for conducting the post-mortem and specimen of seal (Ext.Ka-10). After the inquest report, the dead body was sent for post mortem in sealed condition through Constables Magan Singh and Subhash Chandra. 17. P.W.7 is Gurucharan Singh, who has stated that the Kulwant Kaur (deceased) was his younger sister, whose marriage was solemnized with the accused/appellant Baldev. In the marriage, they had given items worth Rs.1.00 Lac. After some days of the marriage, the accused/appellants and the co-accused started taunting and beating her for bringing less dowry. This fact was told to him and his parents by his sister when she came to her parental house. They all persuaded her that everything will be fine. After 5-6 months of the marriage, the accused/appellant Baldev came to Shimla 13 and made a demand of scooter. His brother Surjan Singh (P.W.1) gave Rs.2,000/- to the accused Baldev to book scooter but even after that the demand of dowry of the accused remained same. The accused/appellant Baldev cancelled the booking of the scooter and kept Rs.2,000/-. The accused/appellants and the co-accused had made a demand of Rs.50,000/- and they used to say that if the demand of Rs.50,000/- would not met then they will continue committing Marpeet with his sister. On 6.11.1985, the accused/appellant Baldev mortgaged his sister’s ornaments which they sold after some days. The accused Baldev had brought a letter (Ext.Ka-3) with him. After this letter, they did not give money to the accused/appellants because they were having no money at that time. In February, 1986 his sister gave birth to a son. On this, he went to Dehradun along with clothes and some other articles for the child. Then Kulwant (deceased) told him that from when he and his family members have refused to give money since then the accused/appellant Baldev and his family members have increased their harassment upon her. On this, the accused/appellants and the co-accused abused him. Baldev’s mother thrown the newly born child and asked to take that child and his sister. She also demanded Rs.50,000/- otherwise they will not keep his sister. Then in the night, he along with his sister and the child stayed in the house of Gurubachan-Baldev’s cousin brother. On the same day, he informed his brother Surjan Singh (P.W.1) through telephone and called him from Shimla to Dehradun. Next day Surjan Singh came to Dehradun then they called the Panchayat of the community. There the accused/appellants and the co-accused apologized and did a promise of not demanding dowry in future and also of not harassing Kulwant Kaur (deceased). From there the accused/appellants took Kulwant Kaur 14 (deceased)and her child to their house. In April 1987, Kulwant (deceased), accused/appellant Baldev and their son came to Shimla. Then Kulwant (deceased) told that the accused/appellants commit Marpeet with her. After that he talked with the accused Baldev. The accused made a demand of money. After leaving the deceased in Shimla, the accused Baldev went to his house. After sometime, in the month of May, 1987, his father along with the deceased went to her in-laws house. Thereafter his father went to Chakrata. When he came back from Chakrata then the deceased told his father that the intention of the accused/appellants and the co-accused is not good and they will kill her. On this, his father called the accused/appellant Baldev and his family members and persuaded them. On 5.6.1987 at 07:20 A:M, his father depart for Shimla from Dehradun. On the same day at 12-12:30 P:M they got the information through telephone that his sister has died by consuming poison. After this, he and his brother Surjan Singh (P.W.1) along with their wives depart for Shimla. They met their father at Kumar Hatti. They told the entire incident to his father. Then his father along with them also went to Dehradun. In the night at about 9-9:30 P:M they reached at the accused Baldev’s house. There they saw the dead body of Kulwant (deceased) lying in the courtyard and 6-7 relatives were present there. They enquired from the people who told them that she has died due to consumption of poison. They took the dead body into their possession and went to Haridwar for cremation. The report of the said incident was lodged by his elder brother. 18. Thereafter, the statement