IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 1455 of 2001 (Old No. 932 of 1996) State of U.P. (Now State of Uttarakhand). ...…………. Appellant Versus 1. Arun Kumar Srivastava S/o Kameshwar Dayal Srivastava 2. Ajai Kumar Srivastava S/o Kameshwar Dayal Srivastava 3. Arvind Kumar Srivastava S/o Kameshwar Dayal Srivastava 4. Smt. Vimla Srivastava (since deceased) W/o Kameshwar Dayal Srivastava 5. Kameshwar Dayal Srivastava (since deceased) S/o Girja Dayal Srivastava All R/o 246 / 214, Girja Bhawan, Old Haiderganj, P.S. Bazarkhala, Lucknow. ...…………. Respondents Mr. B.S. Parihar, Brief Holder, present for appellant State Mr. I. S. Mehra, Advocate and Mr. R.S. Sammal, Advocate along with Mr. Vishal Singh & Mr. Prem Kaushal, Advocates, present for the respondents. Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 378(3) of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 21.12.1995, passed by First Addl. Sessions Judge, Dehradun, in Sessions trial No. 165 of 1992, whereby 2 said court has acquitted accused / respondents, namely Arun Kumar Srivastava, Kameshwar Dayal Srivastava, Ajai Kumar Srivastava, Arvind Kumar Srivastava and Smt. Vimla Srivastava of the charge of offences punishable under Section 498-A, 120(1)B and 304-B of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.), and one punishable under Section 3/4 of the Dowry Prohibition Act, 1961. 2) Heard learned counsel for the parties and perused the lower court record. 3) Prosecution story, in brief, is that accused / respondent No. 1 Arun Kumar Srivastava got married on 01.05.1992 to Kalpana Srivastava (deceased), daughter of complainant Ram Narain Srivastava (P.W. 1). After her marriage she lived in her husband’s house in Dehradun. It is alleged by the complainant that the accused / respondent No. 1 demanded dowry of Rs. 25,000/- to settle the home at Dehradun. It is further alleged by the complainant that his son-in-law threatened him of dire consequences if the demand is not fulfilled. On 07.06.1992, the complainant received an information that his daughter Kalpana Srivastava has died. On this, he proceeded from Lucknow to Dehradun. He has mentioned in the first information report (Ext. A –1) dated 11.06.1992, that some important letters written by his daughter are found from the house of accused / respondent No. 1 Arun Kumar 3 Srivastava, which are in the possession of the police. On the basis of said report a Crime No. 590 of 1992, was registered relating to offences punishable under Section 304-B of I.P.C., and one punishable under Section 3/4 of the Dowry Prohibition Act, 1961, against the accused / respondent No. 1 Arun Kumar Srivastava, his brothers and parents. The crime was investigated by P.W. 8 Ajay Mohan Sharma, the then Circle Officer (City), Dehradun. Meanwhile, on the report of accused / respondent No. 1 Arun Kumar Srivastava regarding unnatural death of his wife, police had taken the dead body of Kalpana Srivastava in their possession on 07.06.1992, at about 02:00 P.M., and prepared inquest report (Ext. A –6) and other necessary papers, before sending the dead body for postmortem examination. P.W. 4 Dr. B.K. Endlay along with Dr. Gopal Swaroop conducted the postmortem examination on the dead body of Kalpana Srivastava, at 03:45 P.M., on 08.06.1992, and prepared the autopsy report (Ext. A – 2). The team of doctors found following ante mortem injuries on the body of the deceased: i) Ligature mark, obliquely placed, 11.5 cm X 3 cm on right side extending from cricoid cartilage upto behind right earlobe, 6 cm above suprustal norch on left side from cricoid cartilage upto left earlobe. ii) Ligature mark 14.5 cm X 3 cm with a gap of 7 cm behind the neck. 4 The cause of death according to the team of doctors was asphyxia due to hanging. The Investigating Officer after interrogating the witnesses, submitted charge sheet (Ext. A –10) against accused / respondent No. 1 Arun Kumar Srivastava, and charge sheet (Ext. A –11) against accused / respondents Ajai Kumar Srivastava, Arvind Kumar Srivastava, Vimla Srivastava and Kameshwar Dayal Srivastava, for their trial in respect of offences punishable under Section 498-A, 304-B of I.P.C., and one punishable under Section 3/4 of the Dowry Prohibition Act, 1961. 4) The Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., committed the case to the court of sessions, for trial. Learned Addl. Sessions Judge, after hearing the parties, framed charge of offences punishable under Section 498-A, 120(1)B, 304-B of I.P.C., and one punishable under Section ¾ of the Dowry Prohibition Act, in reply to which all the five accused pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Ram Narain Srivastava (complainant and father of the deceased); P.W. 2 Smt. Asha Srivastava (mother of the deceased); P.W. 3 Anand Singh Negi (landlord); P.W. 4 Dr. B.K. Endlay (who conducted the postmortem examination); P.W. 5 Satya Bhama; P.W. 6 Head Constable Jagdish Singh; P.W. 7 Sub Inspector Rajbeer Singh and P.W. 8 Ajay Mohan Sharma (Investigating Officer). The oral 5 and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which they alleged the same to be false. It is pleaded by all the four accused except Arun Kumar Srivastava, that they are residents of Lucknow, and Kalpana Srivastava never lived with them, after her marriage with Arun Kumar Srivastava. Accused / respondent No. 1 Arun Kumar Srivastava pleaded that his wife Kalpana lived with him at Dehradun and committed suicide. In defence, D.W. 1 Kameshwar Dayal Srivastava (accused / respondent No. 5 after obtaining permission under Section 315 of Cr.P.C.) and D.W. 2 Habib Ahmad, were examined. The trial court, after hearing the parties, found that though Kalpana, wife of accused / respondent No. 1 Arun Kumar Srivastava, died unnatural death, but she appears to have committed suicide as she was not happy with the marriage. The trial court observed that it is not a case of dowry death. With this finding, the trial court acquitted the accused of the charge of offences punishable under Section 498-A, 120(1)B and 304-B of I.P.C., and one punishable under Section 3/4 of Dowry Prohibition Act, 1961. Aggrieved by the judgment and order dated 21.12.1995, this appeal was preferred by the convicts before the Allahabad High Court on 16.05.1996, where it was admitted on 11.01.2000. The appeal is received by this Court under Section 35 of the U.P. Re-organization Act, 2000 (Central Act No. 29 of 2000), for its disposal. 6 5) Learned counsel for the State / appellant argued that death of the deceased had taken place within 1½ months of the marriage, as such, the trial court has committed error of law in acquitting the accused from the charge of offences punishable under Section 498-A, 120(1)B, 304-B of I.P.C., and one punishable under Section 3/4 of the Dowry Prohibition Act. No doubt, it is an unfortunate case in which the bride has died within 1½ month of her marriage, but merely for that reason it cannot be said that the accused / respondents are guilty of dowry death or that they demanded dowry. 6) Perusal of the first information report (Ext. A –1) shows that there is not a single word as against accused / respondent No. 2 Ajai Kumar Srivastava, accused / respondent No. 3 Arvind Kumar Srivastava, accused / respondent No. 4 Smt. Vimla Srivastava (since died during the period of appeal) and accused / respondent No. 5 Kameshwar Dayal Srivastava (since died during the period of appeal) that they ever subjected the deceased to cruelty after her marriage. It is admitted to the prosecution witnesses that accused / respondent No. 1 Arun Kumar Srivastava (husband) was serving in Dehradun. Both the complainant’s family and that of the other accused / respondents are residents of Lucknow. After the marriage Kalpana Srivastava (deceased) left with her husband for Dehradun, where she expired. There was no occasion on the part of the accused / respondent No. 2 Ajai Kumar Srivastava, 7 accused / respondent No. 3 Arvind Kumar Srivastava, accused / respondent No. 4 Smt. Vimla Srivastava (since deceased) and accused / respondent No. 5 Kameshwar Dayal Srivastava (since deceased) to harass the deceased after her marriage as they were living in Lucknow. The allegation has been made against husband that he demanded Rs. 25,000/- from the complainant to settle himself at Dehradun where he was in job. The trial court has not believed said allegation made by P.W. 1 Ram Narain Srivastava (father of the deceased) and P.W. 2 Smt. Asha Srivastava (mother of the deceased), on the ground that neither any complaint was made regarding said demand of dowry to anyone, nor it reflects from any of the letters (Ext. B –3 and Ext. B –4) written by the deceased after her marriage, to her parents. The trial court has further took note of the statement of D.W. 2 Habib Ahmad, who was the mediator of the marriage, and stated before the court that there was no demand of dowry made by the accused. The trial court took the view that the accused have successfully disproved the presumption under Section 113-B of the Indian Evidence Act, 1872. 7) From the postmortem examination report read with the statement of P.W. 4 Dr. B.K. Endlay, it is clearly established that Kalpana Srivastava had died unnatural death on 07.06.1992. It has also been established on the record that she has committed suicide. Now, the only question before this Court is 8 whether, she was subjected to cruelty by accused / respondent No. 1 Arun Kumar Srivastava, with whom she was living after her marriage, or not. In this connection, this Court thinks it just and proper to mention here the contents of the two letters said to have been written by the deceased regarding which P.W. 1 Ram Narain Srivastava (complainant) admitted in his cross-examination that these letters are in the handwriting of his daughter (Kalpana Srivastava). The contents of these two letters written by the deceased to her parents and brother, are being reproduced below: “vknj.kh; ikik eEeh th ueLrs. v= dq’kye r=kLrq vkxs lekpkj ;g gS ge yksx ;gkaW ij dq’ky iwoZd ls gSa rFkk vki yksxksa dh dq’kyrk dh dkeuk ls euk;k djrsa gSaA eSa tc ls ;gkW vkbZ gwW vthc lk yxrk gSA ysfdu 'kk;n /khjs&/khjs vPNk yxus yxsxkA vki yksxksa dh tc ;kn vk tkrh gSA rc eu djrk gS vki yksxksa ds ikl mM+ dj vk tkÅW ysfdu ,slk vc lEHko ugha gSA eSaus vki yksxksa ds ikl ,d i= Mkyk Fkk ysfdu vki yksxksa us dkbZ tokc ugha fn;k D;k vki eq>ls ukjkt gSaA eSaus Hkb;k dks Hkh ,d i= Mkyk Fkk mUgksaus Hkh dksbZ tokc ugha fn;kA vxj vki yksx fdlh dkj.ko’k eq>ls ukjkt gSa rks ekQ dj nhft;sxkA eSa _f"kds’k 17-05-1992 dks xbZ Fkh rFkk 18-05-1992] dks okil nsgjknwu jkr 8 cts vk xbZA eEeh vkids coklhj ds D;k gky pky gSa fy[kuk nok oxSjg Bhd ls ysrh jgukA ukuk th rks vHkh vkids ikl gksaxsa muds D;k gky pky gSa fy[kukA ikik th eEeh dks le; ugha feyrk rks vki gh gky pky fy[kdj iksLVdkMZ Mky fn;k djsaA eu vki yksxksa dh rjQ ls dkQh fpfUrr jgrk gSA b/kj LoIu 9 Hkh cgqr [kjkc fn[kkbZ ns jgsa gSaA vki yksx esjh rjQ ls fpfUrr u gksa eSa ;gkW ij Bhd ls gwWA vkWVh ¼T;ksrh dh eEeh½ nknh dks ge yksxksa dh rjQ ls ueLrs Lohdkj gks rFkk jkgqy dks I;kj o 'kqHk vk’khZoknA eSaus ljkst nhnh ds fy;s viyhds’ku fy[kdj Hkst nh gSA feyh ;k ugha fy[kukA ge yksxksa dh rjQ ls vki yksxksa dks ueLrs Lohdkj gksA d`Ik;k i= dk mRrj 'kh?kzfr’kh?kz nsukA 'ks"k vxys lekpkj feyus ijA 'ks"k 'kqHk gSA vkidh iq=h dYiuk JhokLro 19-05-1992” “vknj.kh; Hkb;k th ueLrs v= dq’kye r=kLrq vkxs lekpkj ;g gS eSa ;gkW ij dq’ky iwoZd ls gwWA vkidh dq’kyrk Hkxoku ls euk;k djrh gwWA eSa y[kuÅ ls 10-05-1992 dks 'kke 6 cts pydj izkr% 11-05-1992 dks 9 cts nsgjknwu igqWp xbZ rc eSaus vkidks ,d i= Mkyk Fkk ysfdu vkius dksbZ tokc ugha fn;kA D;k vki eq>ls ukjkt gSA vxj gSa rks d`Ik;k ekQ dj nhft;sxkA vkids rFkk vkids vkfQl ds D;k gky pky gSa fy[kuk eSaus ikik dks Hkh i= Mkyk Fkk ij mUgksaus Hkh dksbZ tokc ugha fn;k blfy, eu fpfUrr jgrk gSA eSa vkt eEeh ikik dks Hkh i= Mky jgh gwWA eSa _f"kds’k 17-05-1992 dks xbZ Fkh rFkk 18-05-1992 dks okil vk xbZA ;gkW ij ge yksxksa ds lekpkj Bhd gSaA ge yksxksa dh rjQ ls vki dks ueLrs Lohdkj gksA i= fy[kus esa eq> ls dksbZ xyrh gks xbZ gks rks d`Ik;k ekQ dj nhft;sxkA 'ks"k 'kqHk gSA i= ds mRrj dh izrh{kk esaA vkidh cfgu dYiuk JhokLro 19-05-1992” 10 None of the above two letters show that the deceased was ever subjected to cruelty for non-fulfillment of demand of dowry. Not only this, another letter dated 01.06.1992, written by the deceased on 01.06.1992 to her in-laws, who were also living in Lucknow, is reproduced below: “vknj.kh; nknh ikik eEeh th lknj pj.k Li’kZ ,oa lHkh NksVs yksxksa dks I;kj o 'kqHkvk’khZoknA v= dq’kye r=kLrq vkxs lekpkj ;g gS ge yksx ;gka ij dq’kyiwodZ ls jgdj vki yksxksa dh dq’kyrk dh dkeuk Hkxoku ls euk;k djrs gSA eEeh th tc ls eSa ;gka ij vkbZ gwa fcYdqy vdsyh gks x;h gwaA vki yksxksa dh dkQh ;kn vkrh gS budh rFkk esjh rch;r [kjkc gks tkus ls dkj.k eSa vkidks nsj ls Ik= Mky jgh gwaA vk’kk gS vki viuh cgw dks ekQ dj nsxhaA vkidk Lusg ls ;qDr Ik= eq>s 1&6&92 dks izkIr gqvkA vki yksxksa ds gkypky Kkr gq;sA vkidh rch;r Bhd ugh gSA blls eu cgqr ijs’kku gSA vkokl fodkl ls eEeh dk Hkh Ik= vk;k FkkA mUgksus fy[kk gS fd esjh 6 tqykbZ ls ,e0,0 f}rh; o"kZ dh ijh{kk;sa 'kq# gks jgh gSaA blfy;s ge yksx 'kk;n twu ds vkf[kjh lIrkg esa ;k tqykbZ ds izFke esa y[kuÅ vk;sxsaA bl le; laxhrk ohoh th ,oa ufdrk ohoh th dh Hkh ijh{kk;sa 'kq# gks jgh gS vki yksx [kwc eu yxkdj rS;kjh djukA ftlls vPNs uEcjksa ls ikl gks ldsaA vc rks NksVh choh th ,ao NksVs Hkb;k th dk Hkh ijh{kkQy fudyus okyk gksxk ;k fudy vk;k gksxkA vxj ijh{kkQy fudy vk;k gksxk rks mu yksxksa ds vad dSls jgs fy[kukA bl le; vUuw Hkb;k th ds D;k gkypky gS fy[kukA Hkb;k th ls dguk dHkh&dHkh vkokl fodkl Hkh gks vk;k djsaA ftlls eEeh ikik dks vdsykiu u eglwl gksA nknh ikik th ls dguk os yksx vius LokLFk; dk /;ku j[ksaA ;s rks vki yksxks dh dkQh ;kn djrs gSaA vki yksxksa dh ,ao vEEkk th ds ckjs esa dkQh ckrsa djrs gSaA ;gka ij Jh Mk0 ,l0ih0 'kqDyk 11 vHkh rd ugh vk;s gSaA EkSa 18&5&92 dks _f"kds’k x;h Fkh ,ao 19&5&92 dks okil nsgjknwu ldq’ky vk x;h FkhA ;gka ij Hkh cjlkr 'kq# gks x;h gSaA budks bl le; dkQh [kkalh vk jgh gSA vr% vkt MkDVj ds ikl tkÅxhaA ge yksx vki yksxksa dks pj.k Li’kZ Hkst jgsa gSaA ,ao vius lHkh NksVs HkkbZ cguksa dks I;kj o 'kqHk vk’khZoknA Ik= fy[kus esa tks Hkh xyrh jg x;h gks ekQ dj nhft;sxkA 'ks"k 'kqHk gSA Ik=ksRrj dh izrh{kk esa& vkidh cgw dYiuk JhokLro 01-06-1992” This letter also does not indicate if the deceased was subjected to cruelty for non-fulfillment of demand of dowry. It has come on the record that the deceased was studying in the postgraduate class, while her husband (accused / respondent No. 1 Arun Kumar Srivastava) was simply an Intermediate (Class XII pass), due to which it appears that the deceased was not happy with her marriage. The trial court has observed that it is quite possible since the deceased was not happy with her marriage with the accused / respondent No. 1, and she committed suicide. No doubt in the present case a court could have believed the prosecution case. But, assuming for a moment that two views are possible in the present case, once the trial court has taken a view, it cannot be set aside unless it is perverse or against the evidence on record. Therefore, it is not desirable on the part of this Court to set aside impugned order, in exercise of the appellate jurisdiction. 12 8) For the reasons as discussed above, this appeal is liable to be dismissed. Accordingly, the appeal is dismissed. Lower court record be sent back. (Prafulla C. Pant, J.) [[ Dt. July 13, 2010. H. Negi