Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 79 of 2002 Vimlesh Kumar ...…………. Appellant versus State of Uttaranchal ...…………. Respondent Mr.Vinod Sharma, Advocate for the appellant. Mr. Amit Bhatt, Addl. Govt. Advocate for the State. JUDGMENT Coram : Hon’ble Barin Ghosh, C.J. Hon’ble U.C. Dhyani, J. Per: U.C. Dhyani, J. This appeal preferred under Section 374 of the Code of Criminal Procedure, 1973, is directed against the judgment and order dated 06.03.2002, passed by Sessions Judge, Pauri Garhwal in Sessions Trial No. 22 of 2001, whereby accused / appellant Vimlesh Kumar is convicted under Section 304-B of Indian Penal Code, 1860 and has been sentenced to imprisonment for life. 2. Heard learned counsel for the appellant & learned Addl. Government Advocate for the State and perused the lower court record. 2 3. Prosecution story in brief is that the marriage of Shakuntala Devi was solemnized with the accused- appellant Vimlesh Kumar in April, 1994. Although sufficient gifts were given by the family members of Shakuntala Devi in her marriage, yet her in-laws started harassing her for bringing dowry. The husband and other in-laws were persuaded not to ask for dowry. When the same did not yield any result, an application for maintenance was filed by the sister of the reporter in the court of C.J.M, Kotdwar. The parties thereafter settled their differences. A compromise was entered into between the husband and wife, but in spite of that her husband and other members of matrimonial home continued to harass her for dowry. No FIR was lodged looking into the future of Shakuntala Devi. On 11.11.1999 at 6:00 p.m., the father-in-law of Shakuntala Devi came to the complainant/reporter Brijesh Kumar (brother of Shakuntala Devi) and informed that she had fallen ill on 10.11.1999 in the evening and has died on 11.11.1999 during day hours. 4. The informant Brijesh Kumar reported the matter to the Naib Tehsildar, Tehsil Kotdwar, Garhwal by way of presenting a complaint (Ext. Ka-1) and on the basis of the same a chik FIR (Ext. Ka-3) was lodged. The incident which took place on 11.11.1999 during day hours was reported to the Tehsildar on 13.11.1999 at 7:30 a.m. 5. Police registered a case against Jagat Singh, Dhanwanti Devi, Vimlesh Kumar, Vicky, Suresh and 3 Satyendra for the offences punishable under sections 304 B and 498A IPC. 6. Thereafter inquest report (Ext. Ka-2) was prepared and investigation of the case started. After completing the investigation two charge-sheets (Ext. Ka-9 & Ext. Ka-10) were submitted against the accused persons for the offences punishable under sections 498A and 304 B IPC. Before that site plan (Ext. Ka-9) was prepared by the Investigating Officer. The post-mortem on the body of Smt. Shakuntala (Ext. Ka-11) was conducted on 14.11.1999 at Bijnore. Her Viscera was preserved and sent to Forensic Science Laboratory, Agra. The report of F.S.L, Agra (Ext. Ka -12) found the presence of Organo Claro Insecticide poison in the stomach, intestine, liver, gallbladder, kidney and spleen of the victim. 7. When the case was committed by the Magistrate to the court of Sessions for trial, learned Sessions Judge, Pauri framed charges against the accused persons for the offences punishable under sections 498A /34 IPC and section 304 B /34 IPC, to which the accused persons pleaded not guilty and claimed to be tried. 8. On this, six prosecution witnesses were examined on behalf of the prosecution. The oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which they alleged the same to be false. After conclusion of the trial the learned Sessions Judge acquitted the accused Jagat Singh, Suresh, 4 Satyender Kumar, Smt. Dhanwantari Devi and Vicky of the charges framed against them. Accused- appellant Vimlesh Kumar was however, found guilty of the offences punishable under section 304 B and 498A IPC and was convicted accordingly. He was sentenced to undergo imprisonment for life. Aggrieved by said judgment and order dated 06.03.2003 the convict Vimlesh Kumar has preferred this Appeal. 9. PW 1 Brijesh Kumar is the real brother of deceased Shakuntla Devi. Shakuntla Devi's marriage was performed in the month of April, 1994 with accused/appellant Vimlesh Kumar in accordance with the Hindu rites. According to her brother, his sister used to complain that her husband, brother-in-law, father-in-law and mother-in-law were harassing her on account of non- fulfillment of demand of dowry. He has proved his complaint (Ext. Ka 1). Autopsy report (Ext. Ka 2) bears his signatures. 10. Deceased Shakuntla Devi was the cousin of PW2 Balvir Singh. Balvir Singh has also stated in his evidence that in-laws of Shakuntla Devi used to harass her on account of non- fulfillment of demand of dowry. 11. PW 3 Neema Devi is the unfortunate mother of the deceased Shakuntla Devi and she has also stated that the in-laws of Shakuntla Devi used to harass her for non fulfillment of demand of dowry. 5 12. PW 4 Anoop Kumar Nautiyal, Naib Tehsildar has stated that Chick F.I.R. (Ext. Ka 3) was lodged on the complaint of PW 1 Brijesh Kumar. PW 4 Naib Tehsildar has also proved copy of G.D. (Ext. Ka 4), autopsy report (Ext. Ka 2) and other papers which have been exhibited as ( Ext. Ka 5 to Ka 8). 13. Naib Tehsildar/Investigating Officer prepared the Site Plan (Ext. Ka 8) and recorded the statement of the informant Brijesh Kumar. Thereafter, the investigation was handed over to the Circle Officer, Kotdwar. 14. PW 5 Mukesh Kumar, Deputy Superintendent of Police, has conducted the investigation of the case at some length. He recorded the statements of complainant Brijesh Kumar, his mother Neema Devi and Balvir Singh, cousin of the deceased. Accused persons were arrested. After completing the investigation of the case and verifying the site plan, Investigating Officer submitted the charge sheets (Ext. Ka 9 and Ka 10). He also sent the viscera for chemical analysis to the Forensic Science Laboratory, Agra. 15. PW 6 Dr. Lokesh Kumar Gupta conducted the post mortem on the body of deceased Shakuntla Devi and has proved the same as Ext. Ka 11. At the time of post mortem, no ante mortem injury was found. However, viscera was preserved in sachet. 6 16. The statement of the accused persons under Section 313 Cr.P.C. were recorded. Accused Vimlesh Kumar has stated that Shakuntla Devi has died a natural death. 17. It will be pertinent to note here that the trial court proceeded against Jagat Singh, Suresh and Satyendra Kumar in S.T. No. 36 of 2000 and Smt. Dhanwantari Devi, Vimlesh Kumar (present appellant) and Vikki in S.T. No. 22 of 2001. The trial court by its judgment and order dated 6th March, 2002 has acquitted Jagat Singh, Suresh, Satyendra Kumar, Dhanwantari Devi and Vikki. Present appellant Vimlesh Kumar was found guilty of the offence punishable under Sections 304-B and 498-A I.P.C. Whereas no separate punishment was given for the offence punishable under Section 498-A I.P.C., accused/appellant Vimlesh Kumar was awarded life imprisonment for the offence punishable under Section 304-B I.P.C. 18. Learned Sessions Judge, Pauri Garhwal, in his judgment has discussed the evidence tendered on behalf of the prosecution from para 4 to 9 of the judgment. He has referred to the ingredients of the offence punishable under section 304 B IPC at para no. 12 of the judgment and found that the accused Vimlesh Kumar is guilty of the said offence on the strength of section 113 B of the Evidence Act. The other accused persons were given the benefit of doubt. Learned trial court has also mentioned in his judgment that small inconsistencies in the testimony 7 of the prosecution witnesses are liable to be ignored. He has also cited certain rulings at page no. 9 of the judgment to say that the said rulings are not applicable to the present case. 19. We are however, unable to persuade ourselves to agree with the findings recorded by the learned trial court because of the reasons enumerated hereinbelow. 20. Learned counsel for the appellant has argued that Shakuntla Devi died a natural death. She had begotten two children out of her wedlock with appellant Vimlesh Kumar. The heads of both the children were unusually large and she too was suffering from several diseases. She was fed up with life and she consumed insecticide (poison) and committed suicide. Learned counsel for the appellant has also submitted that there was no harassment by the husband either on account of non fulfillment of demand of dowry or otherwise and she has died a natural death. She was under the treatment of her elder brother. She was in the house of her husband at the time of her death but she was ill. Since she was a member of agrarian family, therefore, the availability of insecticide in the house cannot be ruled out. She consumed poison which resulted into her death. The F.I.R. had been lodged on the directions of the police authorities. 21. The complaint has been written by her brother PW 1 Brijesh Kumar. The body of deceased remained in the house of appellant for a sufficient period of time. It 8 was not cremated. No one from the family of Shakuntla Devi reached her matrimonial house. The in-laws were waiting for the family members of the deceased but they did not visit her matrimonial house on her death. 22. The Chemical Analyst's report has opined the presence of Organo Claro insecticide (poison) in the viscera of Shakuntla Devi. It means that either the poison was administered to her or she consumed the same on her own. 23. Three ingredients are required to be proved by the prosecution in order to bring home the guilt against the accused in dowry death cases: (a) Dowry death must have been committed within seven years of the marriage. (b) The bride must have died an unnatural death i.e. the death must have occurred in the unnatural circumstances; and (c) The cruelty or the demand of dowry must have been made soon before the death of the bride. 24. Learned counsel for the appellant has also argued that the second and third ingredients are missing from the prosecution evidence. Learned AGA, on the other hand, has opposed the same. This court is unable to countenance the arguments advanced by learned counsel for the appellant. This court is of the view that the first and second ingredients are proved on the basis of the evidence on record. The death of the victim within seven years of the marriage has not been disputed. She died an unnatural death, is proved on the basis of the Chemical 9 Analyst’s report which confirms the presence of Organo Claro insecticide in viscera of the deceased. If she has consumed insecticide and died, cannot be said to be a natural death. It is certainly an unnatural death whether the poison was administered to her or she consumed the same on her own – it makes no difference. 25. The next question which arises for consideration of the Court is whether she was subjected to harassment or cruelty on account of non-fulfillment of the demand of dowry or not? The evidence which has been brought on record, suggests the answer in the negative. Learned Additional Government Advocate has submitted that the first two ingredients of the offence of dowry-death are proved but has graciously admitted before the court that the evidence relating to third ingredient is not sufficient to bring home the guilt to the accused Vimlesh Kumar. Therefore, in this view of the matter, it cannot be said that the prosecution has been able to prove its case against accused/appellant Vilmesh Kumar beyond reasonable doubt and he is therefore, entitled to acquittal. 26. The attention of the Court was drawn towards the letter written by PW 1 Brijesh Kumar to his sister, deceased Shakuntla Devi. In his cross-examination he has said that he works in a company dealing with medicines in Sonipat where he is an assistant to a doctor. He has admitted at the bottom of page no. 6 of his cross- examination, which can be found at page no. 55 of the paper book that paper no. 27 and 28 were written and 10 signed by him. In Ext. Kha 1, which is addressed to her sister, he has advised his sister to come to him and he would prescribe her medicines. Shakuntla Devi was unwell those days when her real brother wrote this letter to her. This letter was in reply to the letter of his sister. In the cross-examination, brother of the deceased, PW 1 Brijesh Kumar has admitted that when she wrote a letter to him, his sister was suffering from jaundice. Thereafter, he has categorically said in his cross-examination that his sister did not write any letter to him complaining about the harassment by her in-laws on account of non- fulfillment of demand of dowry. It is to be noted here that Shakuntla Devi used to write letters to her brother quite often, a fact which has been admitted by her brother PW 1 Brijesh Kumar. 27. PW 1 Brijesh Kumar has also admitted at page no. 9 of his cross-examination that he did not see any injury on the body of the deceased. If any injury was seen on her body by his mother, it was not referred to the doctor for examination. There was a suggestion on behalf of the accused/appellant that the prosecution has not presented the letter of Shakuntla Devi, in reply to which her brother wrote a letter to his sister because she was feeling comfortable at her matrimonial home and had no qualms with her in-laws. 28. The conduct of the accused is also manifest from the fact that Jagat Singh, father of the appellant had come to her parents' home on 11.11.1999 to inform that 11 Shakuntala is not well. Father of the appellant visited the house of Shakuntla Devi one day before the incident took place. No family member of Shakuntla Devi visited her matrimonial home when she died. These facts have been admitted by PW 1 Brijesh Kumar at page no. 11 and 12 of his cross-examination. The brother of the deceased has also admitted in his cross-examination that they had no apprehension that Shakuntla Devi's last rites will be performed surreptitiously. Shakuntla Devi and Vimlesh Kumar were living separately. Earlier there was a dispute between them but they settled their differences and started living separately from other family members. 29. PW 2 Balvir Singh has admitted in his cross- examination that Shakuntla Devi had been in her house before this incident took place. He has categorically stated in the cross-examination that there was no demand of dowry after the marriage of Shakuntla Devi with Vimlesh Kumar. They have not given anything in dowry to the in-laws after her marriage. No member of their community complained about non fulfillment of demand of dowry. 30. It is, therefore, explicit from the evidence on record that while the first two ingredients of the dowry have been made out and proved, the third ingredient has not been proved by the prosecution. The prosecution has not been able to prove the third ingredient of the offence of dowry death, in as much as, it has not been established that Shakuntla Devi died an unnatural death on account of 12 harassment meted out to her due to non fulfillment of demand of dowry. It appears that she was fed up with life and, therefore, consumed insecticide (poison) to get rid of her illness and other worries. 31. The prosecution has not been able to prove its case against the appellant beyond reasonable doubt and therefore, the appeal is allowed. The judgment and order dated 6th March, 2002 of the trial court, so far it relates to the appellant Vimlesh Kumar, is set aside. The conviction and sentence awarded to the appellant Vimlesh Kumar is also set aside. He is on bail. His bail bonds are cancelled and the sureties are discharged. He need not to surrender. Let a copy of this judgment be forwarded to the learned trial court. Lower Court record be also sent back. (U.C. Dhyani, J.) (Barin Ghosh, C.J.) Dt. November 25 , 2011. Kaushal