IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (1) Criminal Appeal No.364 of 2003 Shiv Singh S/o Roop Singh, R/o Village Loldha (Kharva) Patti- Barasali, P.S. Kotwali, District Uttarakashi … Appellant Versus State of Uttaranchal … Opposite Party (2) Criminal Appeal No.345 of 2003 1. Rusna Devi 2. Bhagwan Singh 3. Vishan Singh All R/o Village Loltha (Kharva) Patti- Barasali, P.S. Kotwali, District Uttarakashi … Appellants Versus State of Uttaranchal … Opposite Party Mr. Vinod Sharma, Advocate for all the appellants Mr. M.A. Khan, Brief Holder for the State/opposite party Dated: September 20, 2011 Hon’ble Servesh Kumar Gupta, J. This judgment will adjudicate both the appeals, as the same arise out of the common judgment and order rendered by the Sessions Judge, Uttarkashi on dated 14.11.2003. The said verdict was delivered in Sessions Trial No.3/2002, State Vs. Shiv Singh and three others, pertaining to crime no.114 of 2001, P.S. Kotwali, Uttarkashi. The learned Judge after the conclusion of the trial found all the accused persons, namely, Shiv Singh (husband), Bhagwan Singh (near brother in law), Rusna Devi (mother in law) and Bishan Singh (maternal uncle in law of deceased) guilty for the offence of Section 304-B r/w Section 34 of IPC and sentenced them to undergo R.I. for a term of ten years. 2 The factual matrix of the case is that Smt. Dharma Devi (deceased) was espoused with accused Shiv Singh almost three years ago from the date of incident as per the Hindu rituals. Out of the said wedlock, a baby son was born who was almost less than a year old at the time of incident. Soon after the marriage, all the accused persons subjected Smt. Dharma Devi to various taunts and tortures demanding the dowry. Every time she was teased on the question of dowry. Before almost 10 months of the incident, she was expelled from her matrimonial house after beating and so she was constrained to live with her parents consistently for eight months. After passing said span of period with her parents, she was again sent to her matrimonial home due to social constraints satisfying demand of Rs.20,000/-, as raised by the accused persons. Even after receiving Rs.20,000/- from the mother of Smt. Dharma Devi, which she could manage with great difficulty in the absence of her husband, the atrocious conduct towards Smt. Dharma Devi was not stopped. She was deprived from proper food and clothes in her matrimonial home and ultimately, she died in surreptitious circumstances while being present in her in-laws’ house on 19.10.2001. Basant Singh Panwar, the maternal brother of Smt. Dharma Devi got information from somewhere that his sister was no more on 20.10.2001 in the evening, so taking the father of girl Kirti Singh Panwar along with the other persons of village, they all went to village Loltha where the in-laws house of deceased was situated. They all reached in the in-laws house on 21.10.2001 and found Dharma Devi dead. There were number of injuries on her body which were noticed by Basant Singh Panwar and Kirti Singh Panwar. Thereafter, the FIR was lodged which is Ex.Ka.1 while the Chik Report is Ex.Ka-2. The inquest report Ex.Ka-5 was prepared in presence of many persons. It was noticed that the blood was oozing out from the mouth and nostrils of the deceased. The whole face of the 3 deceased was bluish and the right eye was swollen; the upper part of bosom and right part of waist was bluish; left leg below the knees was also bluish and the veins of foot had also become bluish. As per the opinion of the members of the Inquest Report (Panchas), she was subjected to beating which resulted in her death. But the dead body was sent for conducting the post-mortem to know the actual cause of death. The Sub-Inspector of the Police, who was present at the time of preparation of the inquest report, also had the concurrent opinion with the members of the inquest report (Panchas). The body was sent for post-mortem. The autopsy was conducted by PW6 Dr. K.S. Mehta, who could not ascertain the exact cause of death, so viscera of the deceased was preserved and sent for the chemical examination. The medical officer also could not detect the external injuries upon the body of the deceased for the reason that due to passing of 2-3 days time, the disintegration of the body had commenced. The skin was under the process of rotting giving rise to multiple blisters. So, the bluish colour at various places of the skin could not be detected by the medical officer. The report of the forensic science laboratory revealed that in the stomach, intestine, liver, spleen and kidney of the deceased, poison, namely, ‘Aluminum Phosphide’ was found. After the investigation, chargesheet was submitted against all the accused persons for the offence of Sections 498-A IPC and 304-B IPC. The learned Judge, after hearing the accused persons and perusal of the case diary, framed the charges of Section 304-B r/w Section 34 IPC against all the accused. But he did not find it appropriate to frame the charges of Section 498-A IPC. The prosecution, before the trial court, got examined PW1 Smt. Laxmi, elder sister of deceased, PW2 Km. Vijaya, close friend of deceased, PW3 Basant Singh, maternal brother of deceased, who lodged the FIR, PW4 Kirti Singh, father of 4 deceased, PW5 Gaindu Lal, an old man resident of village Faidi, PW6 Balbir Singh Negi, the head constable at P.S. Uttarkashi, PW7 Dr. K.S. Mehta, who conducted the autopsy, PW8 S.I. Chotey Lal Tamta, I.O. of the case, PW9 Vinod Singh Rawat and PW10 Vishram Ram, Circle Officer, also an I.O. of the case, who submitted the chargesheet. The accused persons got examined DW1 Jabar Singh in their defence. The learned Sessions Judge, Uttarkashi, after perusing the evidence adduced by the prosecution as well as considering all other aspects of the case, including of defence witness, has recorded the finding of conviction as above, where-against these appeals have been filed. This Court has given hearing to the learned counsel of the appellants as well as to learned brief holder for the State and also perused the entire material available on record. In this case, it is clear that the incident had occurred almost within three years of the marriage of Smt. Dharma Devi with accused Shiv Singh and this death of Smt. Dharma Devi took place in her matrimonial home in abnormal circumstances. The death was not natural rather it was unnatural. In the inquest report, the injuries were found on her body; her left eye was swollen giving bluish appearance and many parts of the body were of bluish colour. In the viscera report, it was revealed after the chemical examination of her stomach, spleen, liver and kidney, the poison ‘aluminum phosphide’ was there. Just after the marriage, she passed almost two years in her matrimonial house bearing every atrocious conduct at the hands of all the accused persons and such conduct was extended to the deceased on the question of dowry making several teasing comments to her. Even she was deprived from proper food and clothing, so she was compelled to leave her matrimonial house and came to live with her parents almost after a month of delivering of a 5 baby son. She lived with her parents for almost 9-10 months. In this period, accused Shiv Singh along with his brother Bhagwan Singh reached in her parents’ house where they raised a demand of Rs.20,000/-. Since Rs.20,000/- were not imminently present there, hence both the brothers returned without bringing Smt. Dharma Devi with them. Later, her mother anyhow arranged Rs.20,000/- in the absence of deceased’s father (who being scared had gone to Delhi) and sent Smt. Dharma Devi with this wherewithal to the tune of Rs.20,000/- to her matrimonial house. However, after passing of one month only, she was found dead in her matrimonial house. She was quite a young lady in the prime of her life, inasmuch as, she was only 23 years of age. In the dowry cases, Section 113-B of the Indian Evidence Act, 1872 envisages as under: - [113-B. Presumption as to dowry death- the question is whether a person has committed the dowry death of a woman 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 for dowry, the Court shall presume that such person had caused the dowry death. Explanation – For the purposes of this section “dowry death”, shall have the same meaning as in section 304-B of the Indian Penal Code (45 of 1860).] It is amply clear that in such cases, the burden is upon the accused persons to prove their innocence after the death of bride within seven years of marriage in abnormal circumstances. In the present case, the death of Smt. Dharma Devi took place, not because of any illness or natural cause but in utter mysterious or rather surreptitious circumstances. No cause of her death could be disclosed by the accused persons so as to discern their innocence. Her dead body was found in the bedroom of accused Shiv Singh. But none of the accused informed either to the police or to any member of her parents regarding the death of Smt. Dharma Devi. Rather, they continued to keep the dead body almost for two days in 6 the house. It creates a doubt that all the accused persons surely would have been planning to dispose of the corpse without letting anybody know regarding the incident. Learned counsel for the appellants has pointed out some discrepancies in the dates which have been mentioned regarding the lodging of the report, conducting of inquest report and autopsy. It appears that it is only a mistake on the part of police official who is lodging the FIR and this inconsistency cannot be made the basis for giving any benefit to the accused persons. All the witnesses have proved very unequivocally that Smt. Dharma Devi used to disclose the series of abundant taunts, tortures and teasing attitude of all the accused persons demanding dowry and cash to be fetched from her parents’ house. In this regard, PW1 Smt. Laxmi, elder sister of the deceased has deposed that whenever Smt. Dharma Devi used to come to her parents’ house, she used to disclose these facts to her and also to her close friend PW2 Km. Vijaya. In this case, PW3 Basant Singh is the scriber of the FIR. Learned counsel of the appellant has argued that the FIR was lodged by Basant Singh second time. This argument is not tenable because the report was lodged only once and not twice and there is no harm in lodging the same by Basant Singh, who is the cousin brother of the deceased. The law nowhere makes it mandatory to lodge the FIR by the father of the deceased. This witness has also proved the narration of her deceased sister regarding the demand of dowry by her in-laws. PW4 is Kirti Singh, father of the deceased, who has also proved in so many words that his daughter Smt. Dharma Devi used to tell the entire tale of the atrocious conduct at the hands of the accused persons with her demanding dowry and cash. DW1 Jabar Singh was produced as the defence witness, who is the mediator of this marriage. He only deposed that it 7 is the tradition of their community in the hills that bride’s father demands the expenses of marriage from groom’s father and on this count, Rs.10,000/- was demanded and so, was given by father of accused Shiv Singh to his counterpart, but at the same time, he has deposed that the money was not paid in his presence. The evidence of this witness is not enough to rebut the presumption as drawn u/s 113-B of the Evidence Act. Although, there is no proof that Rs.10,000/- was given by the father of accused Shiv Singh to Sri Kirti Singh (father of deceased) for the solemnization of marriage, but even if it was given, then also it was in order to observe the customs prevailing in the community in the hills. The same is not enough to discern that the expenses of the marriage were borne by the father of accused Shiv Singh. It has been proved by the prosecution witnesses that the marriage was solemnized by Kirti Singh bearing all the expenses of the marriage and giving reasonable dowry to the best of his capability. PW5 is Gainu Lal who is an old man of 60 years of age. He has also proved the narration of Smt. Dharma Devi made to him while she was living in her native place. When this witness asked her as to why she did not go to her in-laws house, then she informed him regarding the atrocious conduct and demand of dowry at the hands of the accused persons. PW6 Balveer Singh Negi, Head Constable who has proved the lodging of the FIR while PW7 is Dr. K.S. Mehta, who has conducted the autopsy of the dead body and has proved the same. PW8 is S.I. Chottey Lal Tamta, who visited the spot for preparation of the inquest report and sent the dead body for autopsy. PW9 is Vinod Singh Rawat, who is the nephew of Kirti Singh. He has proved that on 20.10.2001, he got information regarding the death of Smt. Dharma Devi. Hearing this sad news, he along with Dinesh immediately rushed to the in-laws 8 house of Smt. Dharma Devi but found that none turned up from her parents’ house. Then he went to her maternal uncle Kirti Singh’s house and informed the incident there. Taking Kirti Singh and other persons with, he came to the in-laws house of deceased and found the dead body in the room. PW10 is Deputy S.P. Vishram Ram, who has filed the chargesheet after completion of the investigation and has proved the same. Learned counsel for the appellants has further argued that there was no demand of dowry from the deceased ‘soon before’ her death. This argument advanced by learned counsel for the appellants is not tenable in view of the aforesaid facts and circumstances of the case, inasmuch as, it would be worthwhile to note the law laid down by the Hon’ble Apex Court in this regard: - “State of Andhra Pradesh Vs. Raj Gopal Asawa, 2004 AIR SC 1933; 2004 Cr. L.J. 1791”- ‘Soon before’ is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period. No definite period has been indicated and the expression ‘soon before’ is not defined. In Raj Gopal Aswa (Supra), it was also laid down by the Apex Court that in cases of dowry deaths and suicides, circumstantial evidence plays an important role and inferences can be drawn on the basis of such evidence. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the ‘death occurring otherwise than in normal circumstances’. The above view was again reiterated in “Yashoda Vs. State of M.P. reported in 2004 (1) UP Cr.R. 406; (2004) 3 9 SCC 98”, wherein it was held that ‘soon before’ is pregnant with the idea of proximity test. It is not synonymous with the turn immediately before. Similarly, in the case of “Pradeep Singh Vs. State of Jharkhand reported in 2007 AIR 2154 S.C.”, it was held that ‘soon before death’ – is an elastic term- what is relevant is there should be a perceptible nexus between death of deceased and dowry related harassment or cruelty inflicted on her. In view of the above, this Court also does not find any substance in the deposition of DW1 Jabar Singh so as to rebut the presumption u/s 113-B of the Evidence Act against the accused persons. This Court is in agreement with the analytical view expressed by learned Sessions Judge in his judgment holding all the accused persons guilty and there is no force in these appeals and the same are liable to be dismissed. It has been informed to the Court by the learned counsel by showing photocopy of the letter issued by Senior Superintendent, Sampurnanand Camp, Sitarganj, Distt. U.S. Nagar, that the accused Shiv Singh has been released after serving out 10 years’ R.I. If it is of any worth, then except the accused Shiv Singh, bail of rest of the accused persons is cancelled. Both the appeals are, accordingly, dismissed. Let a copy of this judgment be sent to the court below for serving out the sentence by the rest of the accused persons, except Shiv Singh, who is said to have already undergone 10 years in caption. (Servesh Kumar Gupta, J.) September 20, 2011 Rajeev Dang