IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Jail Appeal No. 2 of 2010 Kailash Ram S/o Shri Ram Prasad R/o Kandadhar, Mandal Sera P.S. & District Bageshwar …....... Appellant(In jail) Versus State of Uttarakhand ……….Respondent Shri Tapan Singh, Advocate, ( Amicus Curiae), present for the appellant Shri Hari Om Bhakuni, Brief Holder, present for the State. Hon’ble Prafulla C. Pant, J. This appeal, received through Superintendent District Jail Dehradun, is directed against the judgment and order dated 30.11.2009, passed by Sessions Judge, Bageshwar, in 2 Sessions Trial No. 09 of 2009, whereby said court has convicted the accused/appellant Kailash Ram under section 304B and 498A of I.P.C. The convict has been sentenced to rigorous imprisonment for a period of seven years under section 304B of I.P.C., and rigorous imprisonment for a period of one year under section 498A of I.P.C. The accused has been further convicted and sentenced under section ¾ of Dowry Prohibition Act, 1961, to rigorous imprisonment for a period of one year and directed to pay fine of ` 5,000/-. (2) Heard learned Amicus Curiae for the appellant, and learned counsel for the State, and also perused the lower court record. (3) Prosecution story, in brief, is that Ram Prasad (father of the accused/appellant, Kailash Ram) gave a report on 18.1.2009, (Ex A2) at 10.30 a.m at police station Kotwali, Bageshwar, stating that when his children did not open the door in the morning, he went in their room, and saw his daughter in law lying a dead while 3 accused/appellant Kailash Ram had fled from the scene. On the basis of said report Crime No. 39 of 2009, was registered relating to offence punishable under section 302 of I.P.C. Thereafter, Pooran Ram (father of the deceased) also gave a report on 18.01.2009 (Ex A2), at the police station making allegations that his daughter was subjected to cruelty for non fulfillment of demand of dowry and, she has been killed. The police took the dead body in their possession and prepared inquest report (Ex A5), and also prepared other necessary papers police form no. 13 (Ex-A7), sketch of dead body (Ex-A8), sample seal ( Ex- A9) and letter to Chief Medical Officer ( Ex -A10) for post mortem examination. The dead body was sent in a sealed condition for post mortem examination. PW4 Dr. S. Ram conducted post mortem examination on the dead body of Parvati Devi (deceased) on 18.1.2009, at 4.00 p.m, and prepared autopsy report (Ex-A4). He opined that cause of death could not be ascertained and viscera was preserved . From the Forensic Laboratory, Agra, report was received that the pieces of stomach intestine, liver, kidney, 4 spleen, a pieces of heart and lungs contained organo chloro insecticide poison. After inspecting the spot and interrogating the witnesses, the Investigating Officer PW6 Circle Officer Rakesh Pant (Investigating Officer) submitted charge sheet (ExA20) against accused/ appellant Kailash Ram, and four other accused namely Ram Prasad (father in law of the deceased), Sunder Ram (brother in law of the deceased), Girish Ram (brother in law of the deceased ) and Smt Ramuli Devi (mother in law of the deceased). (4) The Chief Judicial Magistrate, Bageshwar, on receipt of the charge sheet, after giving necessary copies to the accused as required under section 307 of Cr.P.C, appears to have committed the case to the court of Sessions for trial. Learned Sessions Judge, Bageshwar, after hearing the parties framed charge of offences punishable under section 304B and 498A of I.P.C., and one punishable under section ¾ of Dowry Prohibition Act, 1961, against all the five accused who pleaded not guilty and claimed to be tried. On this, prosecution got examined PW1 Pooran Ram 5 (father of the deceased), PW2 Dhanuli Devi, (mother of the deceased), PW3 Head Constable Mohan Ram, PW4 Dr. S. Ram (who conducted the post mortem examination), PW5, Sub Inspector Om Prakash Rajpoot and PW6 Circle Officer Rakesh Pant (who investigated the crime). Oral and documentary evidence was put to the accused, under section 313 Cr.P.C., in reply to which it was alleged that the evidence was false. However, it is admitted that deceased was wife of the accused/appellant Kailash Ram. In defence PW1 Pooran Ram (father of the deceased) was got examined. The trial court after hearing the parties, found that charge of offences punishable under section 304B and 498A of I.P.C., and one punishable under section ¾ of Dowry Prohibition Act, 1961, is proved only as against accused/appellant Kailash Ram (husband of the deceased), and not against others. Accordingly, the trial court convicted accused/appellant Kailash Ram, and after hearing on sentence, sentenced him to rigorous imprisonment for a period of seven years under section 304B of I.P.C., rigorous imprisonment for 6 a period of one year under section 498A of I.P.C, and rigorous imprisonment for a period of one year and directed to pay fine of `. 5,000/- under section ¾ of Dowry Prohibition Act, 1961. The other accused namely Ram prasad, Sunder Ram, Girish Ram and Ramuli were acquitted of the charge. Aggrieved by said judgment and order dated 30.11.2009, passed by Sessions Judge, Bageshwar in Sessions Trial No. 09 of 2009, this appeal is preferred by the convict Kailash Ram. (5) Before further discussion, this court finds it just and proper to mention about what was found by PW4 Dr. S. Ram in the autopsy report (Ex -A4) after conducting the post mortem examination on the body of Parvati Devi (deceased). The autopsy report (Ex A4) discloses no external injury. According to the Medical Officer, cause of death could not be ascertained and viscera was preserved. (6) Report (Ex A17) received from Forensic Laboratory, Agra, discloses that the pieces of stomach intestine, liver, kidney, spleen, a pieces 7 of heart and lungs contained poison organo chloro insecticide. A piece of cloth (DHOTI) which is said to spots of drops of vomiting of the deceased also found containing said insecticide poison. The post mortem report read with the report of Forensic Science Laboratory clearly establishes that deceased had died unnatural death in the intervening night on 17-18 of January, 2009. (7) It is not disputed that Parvati Devi got married to Kailash Ram in the year 2007, as such the deceased had died unnatural death as mentioned above within seven years of marriage. Now, this court has to see whether the deceased was subjected to cruelty before her death at the hands of the accused/appellant Kailash Ram for non fulfillment of demand of dowry as alleged by prosecution, or not. (8) PW1 Pooran Ram has stated that after marriage of his daughter with Kailash Ram on her visit to her parental house Parvati Devi twice- thrice told that accused used to demand of ` 8 50,000/- as dowry and for its non fulfillment , he used to commit ' MARPEET'. Similar statement has been given by the PW2 Dhanuli Devi (mother of the deceased). (9) Learned Amicus Curiae, assisting the court on behalf of the appellant, drew attention of this court to the cross examination of PW1 Pooran Ram, who has stated that Kailash Ram did not used to beat his wife. Attention of this court is further drawn by learned Amicus Curiae to the cross examination of PW2 Dhanuli Devi, who has stated that Kailash Ram used to love his wife. On its basis it is pleaded on behalf of the appellant that appellant had committed no cruelty. However, on going through whole of the statements of the two witnesses, this court finds that the allegations made by the two witnesses regarding demand of dowry and harassment on its non fulfillment can not be disbelieved merely on the ground that with some reference the witnesses have told that accused used to love his wife or he did not beat her. What happened in the fateful night was only known to Kailash Ram 9 (accused/appellant) and his wife (deceased). From Ex A2 report submitted by father of the accused Kailash Ram at police station itself indicates that after the death of his wife in the night or in the morning, Kailash Ram fled from the house. There is no explanation from the side of the accused as to how his wife died unnatural death in the intervening night on 17-18 of January, 2009. Section 113 B of the Indian Evidence Act, 1872, provides as under :- When 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 has 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. (10) The accused has not explain as to how his wife died. In his statement under section 313 of Cr.P.C., he has preferred to keep silence in response to the evidence put to him about unnatural death of his wife. In the circumstances, the trial court has committed no error of law in 10 believing the prosecution evidence against accused/appellant Kailash Ram. (11) For the reasons as discussed above, this court does not find any illegality committed by the trial court in convicting the accused/appellant Kailash Ram under section 304B and 498A of I.P.C., and one punishable under section ¾ of Dowry Prohibition Act, 1961, sentence awarded by the trial court is also reasonable and just. Therefore, the appeal is liable to be dismissed. Accordingly, the appeal is dismissed. Lower court record be sent back. Let a copy of this judgment be sent to the Superintendent of the jail concerned for information to the appellant. (Prafulla C. Pant, J.) 15.12.2011 Nahid