RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1518 OF 2001 (Old No.360/1999) Anand S/o Nathu Ram R/o Village Jamnipur, P.S. Sahaspur, District Dehradun ……… Appellant The State Versus ……… Respondent Dated: June 7, 2010 Sri Yogesh Pandey, learned amicus curiae for the appellant Sri Amit Bhatt, learned Addl. GA for the State HON. DHARAM VEER, J. This criminal appeal, preferred under section 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 18/19.2.1999 passed by the Additional Sessions Judge/Special Judge, Anti- Corruption, UP (East), Dehradun in Case No.36 of 1995, State Vs. Anand & others, thereby convicting and sentencing the appellant/accused Anand u/s 304-B of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentencing him to ten years’ rigorous imprisonment. However, by the same judgment and order, co-accused Nathu and Smt. Nanki were acquitted by the trial court for the offence punishable u/s 304-B IPC. 2. I have heard learned counsel for the parties and perused the entire material available on record. 2 3. In brief, the prosecution case is that complainant Kishan Singh (P.W.2) lodged an FIR on 6.6.1993 stating therein that his daughter Babli was married with the present appellant-accused Anand about 2½ year ago and in the marriage, he gave articles as per his status. On 22.5.1993, there was a marriage of his younger daughter Mamtesh in which his daughter Babli had come along with the appellant-accused. A little more was spent in the marriage of Mamtesh, due to which his son in law Anand became annoyed. On 5.6.1993, the appellant-accused Anand came along with Babli at his own house at Village Jamnipur, PS Sahaspur, Dehradun, where the appellant-accused Anand, his father Nathu and mother Nanki, beaten Babli for bringing lesser dowry and lastly, they set her ablaze by pouring kerosene oil upon her. On the alarm raised by the complainant’s daughter, the neighbourers, namely, Maina Devi, Ramesh, and Bala Devi arrived at the spot, saved the victim and asked the appellant-accused and his parents to take the victim to hospital. Thereafter, (PW6) Ramesh came and informed about the incident to the complainant on which he immediately went to Doon Hospital, however by then his daughter Babli had died and the appellant- accused Anand, his father Nathu and other family members had run away from the hospital. With the same averments, the FIR Ex.Ka-7 was lodged by PW2 Kishan Singh on 6.6.1993 at 8:30 PM at PS Sahaspur, Distt. Dehradun. On the basis of that report, Head Moharrir Suresh Chand (PW7) prepared the CHIK FIR, Ex.Ka-2. In the same process, entry was also made in the GD by him, carbon copy of which is Ex.Ka-3. Dying declaration of deceased Babli, before her death, was recorded by R.R. Singh, Deputy Collector, Dehradun on 3 6.6.1993, i.e. Ex.Ka-9, the genuineness of which was admitted by the defence counsel. Initially, the victim Babli was medically been examined by PW8 Dr. GS Rawat on 5.6.1993 at 11:40 PM, who after the medical examination, prepared the medical report Ex.Ka-5. Later on, the victim Babli had died and the inquest report Ex.Ka-1 was prepared by PW12 SI Surendra Singh. Other necessary documents viz. memo of recovery of articles, specimen of seal, sketch of dead body, Police Form No.13 and letters to RI and CMO for conducting the post-mortem, Ex.1 to Ex.7 respectively, were also prepared by him. The post-mortem on the dead body was conducted by PW10 Dr. B.K. Endlay along with PW10 Dr. Anil Bhatnagar on 7.6.1993 at 3:20 PM and the post-mortem report Ex.Ka-8 was prepared and the genuineness of the post-mortem report was also admitted by the defence counsel. The I.O. also took in his possession an empty bottle of kerosene oil and burnt pieces of clothes of deceased and prepared Fard, Ex.Ka- 12. During the course of investigation the I.O. inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-10. The I.O. during investigation recorded the statements of witnesses and after completing the investigation, submitted the charge sheet against the appellant/accused in the court, i.e. Ex.Ka-11. 4. After receiving the charge sheet, learned CJM, Dehradun committed the case to the court of Sessions on 13.02.1995 after giving necessary copies to the appellant/accused and other co-accused as provided under Section 207 Cr.P.C. The case was transferred to Additional Sessions Judge by the Sessions Judge for disposal according to law. 4 5. Learned Additional Sessions Judge, Dehradun on 27.3.1995 has framed the charge against the appellant/accused Anand and co-accused Smt. Nanki and Nathu Ram (acquitted by trial court) u/s 304-B IPC. The charge was read over and explained to accused, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined P.W.1 Sirmaur Singh, PW2 Kishan Lal, PW3 Smt. Bala Devi, PW4 Jeevan Singh, PW5 Smt. Maina Devi, PW6 Ramesh, PW7 H.C. Suresh Chand, who prepared CHIK FIR and made entry in the GD, PW8 Dr. G.S. Rawat, who initially examined the deceased, PW9 Kishan Singh, complainant and father of deceased, PW10 Dr. Amit Bhatnagar, who proved the post-mortem report, PW11 CO Bhagwan Dass Dua, IO of the case, PW12 S.I. Surendra Singh, also an IO of the case, PW13 Shambhu and PW14 Smt. Padhani Devi, mother of deceased. 7. After that the statements of the appellant/ accused and that of co-accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against them. No documentary evidence was put in defence. 8. After hearing learned counsel for the parties and appreciating the entire material available on record, the learned Additional Sessions Judge/Special Judge, Anti-Corruption, UP (East), Dehradun vide judgment and order dated 18/19.2.1999 convicted and sentenced the appellant/accused as above discussed. Feeling aggrieved by the aforesaid judgment and order, the accused/ appellant has preferred the present appeal. 5 9. Before further discussion, it is pertinent to mention that Babli (deceased) was initially medically been examined by PW8 Dr. G.S. Rawat on 5.6.1993 at 11:40 PM and the following injuries were recorded in the medical report Ex.Ka-5: - “Superficial to deep burn showing blackening vesicle formation. Singeing of scalp and pubic hairs, redness involving the whole body except left foot and part of right foot total area about 95%. Opinion-It is fresh burn injury caused by dry heat, kept under observation and patient admitted and police informed.” 10. To prove the above-said report the prosecution has got examined PW8 Dr.G.S. Rawat, who has proved the medical report Ex.Ka-5 prepared by him. 11. Thereafter, the post-mortem of dead body of Babli was conducted by Dr. B.K. Endley along with Dr. Anil Bhatnagar on 7.6.93 at 3:20 PM and the antem- mortem injuries recorded in the post-mortem report Ex.Ka-8 is as under: - 1. “Superficial burns all over body except few parts on back, vagina and left side 2. Cut open mark i.e. one stitch near left ankle. Cause of death, shock due to ante-mortem injuries. 12. To prove the post-mortem report, the prosecution has examined PW10 Dr. Amit Bhatnagar, who was called for the second opinion, has stated that the post-mortem of dead body was conducted by Dr. B.K. Endley was conducted before him and he also agreed and proved the same, i.e. Ex.Ka-8. 6 13. To further prove its case, the prosecution has examined PW1 Sirmaur Singh who stated that the inquest was prepared by the S.I. before him and he was appointed Panch. He proved the inquest report Ex.Ka-1. 14. PW2 Kishan Lal, PW3 Bala Devi, PW4 Jeewan Singh and PW6 Ramesh were declared hostile by the prosecution as they did not support the prosecution case. 15. PW5 Maina Devi though, in her examination in chief supported the prosecution story but in her cross examination, she did not support the prosecution version and stated that she resides at a long distance from the house of Anand Singh and it takes about half an hour to reach there. Neither she saw anyone while pouring kerosene oil upon the deceased nor she saw anyone burning the deceased nor any incident had occurred before her. Hence, this witness too did not support the prosecution case. 16. PW7 H.C. Suresh Chand proved the CHIK FIR prepared by him, i.e. Ex.Ka-3 as well as the entry made in the G.D., Ex.Ka-4. 17. PW9 Kishan Singh stated that the deceased Babli was his daughter who was married with the appellant-accused five years before and he gave dowry as per his status. He got solemnized the marriage of his second daughter Mamtesh in which the deceased Babli and her husband had come. In the marriage of Mamtesh, a little more was spent due to which the appellant-accused became annoyed. On 5.6.1993 the appellant-accused brought Babli at his house where his father Nathu and mother Jamni beaten Babli due to 7 getting less dowry in marriage and set her at fire by pouring kerosene oil. Babli raised alarm for her rescue on which Maina Devi, Ramesh and Bala Devi came and saved his daughter from fire and asked the appellant- accused Anand and his family members to take her at hospital. He also stated that this information was given to him by Ramesh that his daughter had been burnt. On receiving information, he immediately went to Doon Hospital, however by then, his daughter Babli had died and her husband Anand, father in law Nathu and relatives ran away after leaving her there. This report was dictated by him to Sher Singh, i.e. Ex.Ka-7. 18. PW11 CO Bhagwan Dass Dua who stated that he conducted the investigation of this case and prepared the site plan, i.e. Ex.Ka-10. He also proved the inquest report Ex.Ka-1. Father of deceased had given a list of the articles given in dowry, i.e. Ex.1. S.I. Surendra Singh had helped him for investigating this case, who prepared the inquest report and also took the articles from the place of occurrence. During investigation, he recorded the statements of witnesses and on completing the investigation, charge sheet was filed, i.e. Ex.Ka.-11. 19. PW12 SI Surendar Singh who stated that he prepared the inquest report, i.e. Ex.Ka-1. Along with the inquest report, specimen of seal, sketch of dead body, challan lash and letter to RO and CMO for conducting the post-mortem was prepared, which are Ex.2 to Ex.7 respectively. 20. PW13 Shambhu also did not support the prosecution case and was declared hostile. 8 21. PW14 Padhani Devi who stated that his daughter Babli was married with the appellant-accused before 6-7 years. At the time of marriage, the appellant- accused demanded a television which was made available at the time of marriage itself. Even then the mother in law, father in law and husband of deceased used to harass her for the demand of dowry. In the marriage of her younger daughter Mamtesh, the appellant-accused Anand had come along with her daughter Babli. The appellant-accused had run from the place of occurrence because one Almirah more was given to Mamtesh in dowry. On the day on which the appellant-accused took Babli along with him, on the same day, father in law and mother in law burnt her in the evening. On the next day, Ramesh had informed them that their daughter Babli had been murdered by setting her at fire. 22. After that the statements of the appellant/ accused and that of co-accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against them. No documentary evidence was put in defence. 23. Sri Yogesh Pandey, learned amicus curiae for the appellant-accused argued that the prosecution has not proved its case beyond reasonable doubt against him and the trial court has fell into error in convicting and sentencing him as above discussed u/s 304-B IPC. 24. I find force in the argument advanced on behalf of the appellant-accused for the reason that soon after the above-said incident, the deceased Babli was taken to the hospital by her husband and in the hospital, 9 her dying declaration (Ex.Ka-9) was recorded by R.R. Singh, Deputy Collector, Dehradun (genuineness of dying declaration was also admitted by the defence counsel) from 1:30 AM to 1:45 AM on 6.6.1993, in which she stated as below: - “eSa c;ku djrh gw¡ fd eSa vkt gh vius eSds ls ykSVh gw¡A eSa jkr dks LVkso ij [kkus ds fy, f[kpM+h cuk jgh FkhA vpkud LVkso QV x;kA eSa lwV iguh FkhA esajk vkneh ?kj ij Fkk eSa fpYyk;hA lc esa vkx yx x;hA esjs vkneh us eq>s vLirky esa HkrhZ djk;kA eq>s fcYdqy Bhd ;kn gSA esjs ,d cPph gSA “kknh dks nks lky gq, gSaA ngst dk >xM+k ugha gSA ifr Bhd gSA eSa [kkuk cukrs le; gks”k esa FkhA eq>s fdlh us tkucw> dj ugha tyk;k gSA eq>s fdlh us tgj fn;k gks ,slh ckr ugha gSA esjs cPph jks jgh gksxhA Hkw[kh gksxhA ;gh esjk c;ku gS” 25. On a careful perusal of the above statement, it reveals that the deceased had stated in her dying declaration that while she was preparing food, stove had burst due to which she had burnt. Her husband got her admitted in the hospital. She specifically stated that there was no dispute of dowry and her husband was a good man and nobody had burnt her intentionally nor anyone gave her poison. It further transpires that the deceased had not made any allegation of harassment due to non-fulfillment of demand of dowry against her husband nor she made any allegation of physical or mental cruelty against her husband, who is the appellant before this Court. There is no ground to disbelieve the dying declaration of the deceased, rather the genuineness of this dying declaration was also admitted by the defence counsel. Thus, this dying declaration goes in 10 favour of the appellant/accused and he is liable to be extended the benefit thereof. 26. The second ground is that PW2 Kishan Lal, PW3 Bala Devi, PW4 Jeewan Singh and PW6 Ramesh and PW13 Shambhu, who were cited as witnesses in the charge sheet and were also produced in the trial court, none of them have not supported the prosecution case and they were declared hostile, while PW5 Maina Devi, who though not declared hostile, but she too did not support the prosecution case, which is also fatal for the prosecution case. Now, the only evidence of PW9 Kishan Singh and PW14 Padhani Devi, who are the father and mother of the deceased respectively, remains against the present appellant-accused. However, on a careful perusal of these evidences, it reveals that none of them has stated that soon before the death, the deceased was subjected to harassment for the demand of dowry by the appellant-accused nor they have stated about the physical or mental harassment upon the deceased soon after the marriage for the demand of dowry by the appellant-accused. Even, as per the dying declaration of the deceased, it reveals that she died due to bursting of stove and not due to burning of the present appellant/ accused. Hence, the necessary ingredients of Section 304-B IPC, which provides that “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 11 shall be deemed to have caused her death”, are missing in the present case, and as such, the case u/s 304-B IPC is not proved, and therefore, the conviction of the appellant-accused is not justified u/s 304-B IPC. 27. For the reasons as aforesaid, I am of the considered view that the trial court fell into error in convicting and sentencing the appellant-accused u/s 304-B IPC for 10 years’ RI. 28. Accordingly, the appeal is allowed. Judgment and order dated 18/19.2.1999 passed by the Additional Sessions Judge/Special Judge, Anti-Corruption, U.P. (East), Derhadun in Case No.36/1995, State Vs. Anand, convicting and sentencing the appellant-accused Anand as above discussed, is set aside. The appellant is on jail. Let him be released forthwith if not wanted in any other case. Rajeev Dang (Dharam Veer, J.) June 07, 2010