1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 157 of 2010 Manoj Kumar S/o Shri Madan Lal Garg R/o H.No. 300/16, Ashok Nagar P.S. Mansarowar Park, Delhi …..…Appellant (In jail) Versus State of Uttarakhand ……….Opposite Party Shri Lok Pal Singh, Advocate, with Shri Tapan Singh, Advocate, present for the appellant. Smt. Mamta Bisht, A.G.A., present for the State. Hon'ble Prafulla C. Pant, J. This appeal, preferred under section 374 of Code of Criminal Procedure, 1973 (for short Cr.P.C.) is directed against the judgment and order dated 02.07.2010, passed by Additional Sessions Judge, Rishikesh, in Sessions Trial No. 176 of 2009, whereby said court has convicted the accused/appellant Manoj Kumar under section 498A, 304B of Indian Penal Code, 1860 (for short IPC), and also under section ¾ Dowry Prohibition Act, 1961. The convict has been sentenced to rigorous imprisonment for a period 2 seven years, and directed to pay fine of ` 5,000/- under section 304B IPC, rigorous imprisonment for a period of two years, and directed to pay fine ` 1,000/- under section 498A IPC, and rigorous imprisonment for a period of two years, and directed to pay fine of ` 1,000/- under section ¾ 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/appellant Manoj Kumar got married to Dolly (deceased) on 26.06.2009, in Delhi. It is alleged by the prosecution that Dolly was subjected to cruelty for non fulfillment of demand of dowry. It is further alleged that accused/appellant Manoj Kumar took his wife Dolly to his aunts' place in Rishikesh and there on 16.08.2009 (within 50 days for her marriage) she committed suicide. The First Information Report (Ex. A1) was lodged by P.W.1 Pravesh Kumar (father of the deceased) at P.S. Rishikesh, that after the marriage, accused demanded ` one lac and motor- cycle. It is also stated by him in the report that he arranged ` 30,000/- and paid to his son-in-law but still he did not change his behavior. It is specifically mentioned in the report (Ex. A1) that accused/appellant Manoj Kumar, and their relatives 3 committed MARPEET with the deceased on 13.08.2009, at about noon. On the basis of FIR, crime no. 490 of 2009, was registered against accused/appellant Manoj Kumar, and seven other relatives relating to offences punishable under section 498A, 304B, 506 IPC, and one punishable under section ¾ Dowry Prohibition Act, 1961, at P.S. Rishikesh. Before the said report was registered at Police Station on 18.08.2009, on 17.08.2009, on receipt of report (of husband) of unnatural death of Dolly, P.W. 4 Suresh Kumar, Naib Tehsildar, got prepared inquest report through P.W. 6 S.I. Devendra Singh, after taking dead body of Dolly in his possession. The dead body alongwith other necessary papers prepared by the police was sent for post-mortem examination in sealed condition. A team of two Doctors consisting Dr. S.P. Kudiyal (P.W.5) and Dr. G.S. Rawat conducted post-mortem examination on dead body of Dolly on 18.08.2009, at 4:15 P.M.. They prepared autopsy report (Ex. A8), and opined that deceased had died of asphyxia due to hanging. They observed ligature mark above hyoid and below chin anterior side of neck of size 16 X 1cm with adesent right side. The investigation was conducted by P.W. 8 J.S. Bhandari, Addl. Police Superintendent. The witnesses were interrogated by him, and place of incident was inspected. Under his instruction, 4 Inspector J.P. Juyal (P.W.9) arrested the accused. After completion of investigation, charge sheet (Ex. A11) was filed by the Investigating Officer only against accused Manoj Kumar for his trial in respect of charge of offences punishable under section 498A, 304B, 506 IPC, and one punishable under section ¾ Dowry Prohibition Act, 1961. 4. The Chief Judicial Magistrate, Dehradun, on receipt of the charge sheet, and after giving necessary copies to the accused as required under section 207 Cr.P.C., appears to have committed the case to the court of Sessions for trial. The Sessions trial was transferred to the court of Additional Sessions Judge, Rishikesh. On 12.01.2010, Additional Sessions Judge, Rishikesh, after hearing the parties framed charge of offences punishable under section 498A, 304B, and 506 IPC, and one relating to offence punishable under section ¾ Dowry Prohibition Act, 1961. Accused Manoj Kumar pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Pravesh Kumar (father of the deceased), P.W. 2 Smt. Usha (mother of the deceased) P.W.3 Saurav Kumar (cousin of the deceased), P.W. 4 Suresh Kumar, Naib Tehsildar, P.W. 5 Dr. S.P.Kudiyal (who conducted post mortem examination), P.W. 6 S.I. Devendra Singh (who prepared inquest report on instruction of 5 Naib Tehsildar), P.W. 7 Constable Upendra Singh (who prepared check report of the FIR), P.W. 8 J.S. Bhandari, Addl. Superintendent of Police (who investigated the crime), and P.W. 9 Inspector J.P. Juyal (who arrested the accused). The oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which he admitted that Dolly was his wife to whom he got married on 26.06.2009. He also admitted that he came with Dolly to Rishikesh. However, he denied that he had harassed his wife or made any demand of dowry. In defence, D.W. 1 Anita was got examined. The trial court, after hearing the parties, found that prosecution has successfully proved the charge of offences punishable under section 498A, 304B, IPC, and one punishable under section ¾ Dowry Prohibition Act, 1961, and convicted him accordingly, but he was acquitted of charge of offence punishable under section 506 IPC. After hearing on sentence, convict Manoj Kumar was sentenced to rigorous imprisonment for a period seven years, and directed to pay fine of ` 5,000/- under section 304B IPC, rigorous imprisonment for a period of two years, and directed to pay fine ` 1,000/- under section 498A IPC, and rigorous imprisonment for a period of two years, and directed to pay fine of ` 1,000/- under section ¾ Dowry Prohibition Act, 1961. Aggrieved by said 6 judgment and order dated 02.07.2010, passed by Additional Sessions Judge, Rishikesh, in Sessions Trial No. 176 of 2009, this appeal is filed by the convict. 5. Before further discussion, this Court thinks it just and proper to mention the ante-mortem injury recorded by the team of two Doctors namely Dr. S.P. Kudiyal (P.W.5) and Dr. G.S. Rawat, who prepared autopsy report (Ex. A8). The ante-mortem injury observed in the autopsy report proved by P.w. 5 Dr. S.P. Kudiyal, is being reproduced below: Ligature mark seen above hyoid and below chin. Anterior side of neck 16X1cm, noted with adesent right side . Abrasion 3cm X 1cm . The team of Doctors, after conducting post mortem examination opined that deceased had died of asphyxia due to hanging. From the above evidence on record, it is clearly established that Dolly, wife of Manoj Kumar died unnatural death within 50 days of her marriage. Now this Court has to see whether she was subjected to cruelty in connection with demand of dowry, by her husband as alleged by the prosecution or not. 6. Section 304B I.P.C.,defines dowry death, and 7 provides the punishment for the same. It reads as under: Dowry Death:(1) 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 shall be deemed to have caused her death. Explanation:- For the purpose of this sub-section “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a terms which shall not be less than seven years but which may extend to imprisonment for life. (7) Section 113B of Indian Evidence Act, 1872, provides as to the presumption relating to 'dowry death'. Said provision reads as under:- Presumption as to dowry death: When the question is whether a person has committed the 8 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 cause the dowry death. Explanation: For the purposes of this section, “dowry death” shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860). 7. It is already discussed that it is sufficiently proved on the record that Dolly wife of Manoj Kumar to whom she got married only on 26.06.2009, died on 16.08.2009, in otherwise than under normal circumstances within 50 days of her marriage. The second ingredient required to be shown by the prosecution is that soon before her death Dolly was subjected to cruelty by her husband. To show said fact P.W. 1 Pravesh Kumar (father of the deceased) has stated on oath that two days after the marriage of Dolly with Manoj Kumar she came to her parental house, and told that her husband Manoj Kumar asked for a motor-cycle, and ` 30,000/-. The witness has further stated that after he arranged ` 30,000/-, and gave it on 17 July 2009, to the accused but he was not satisfied, and insisted for motor-cycle also. P.W. 1 9 Pravesh Kumar has further stated that on 3.08.2009 (the day of Rakshabandhan) his daughter Dolly came to his house, and after about ten days Manoj Kumar (accused) came and took Dolly forcibly. On 14.08.2009, he came to know that Manoj has taken Dolly to Rishikesh (in his aunts' place). The witness further narrates that on 16.08.2009, he was informed that his daughter is unwell on which on 17.08.2009 he (P.W.1) went to Rishikesh, and found that his daughter was dead. P.W. 1 Pravesh Kumar has proved FIR (Ex. A1) lodged by him at P.S. Rishikesh on 18.08.2009. In the cross-examination this witness has stated that marriage was solemnized in a simple way and it was a arranged marriage. He admitted in cross-examination that at the time of marriage there was no demand of dowry. P.W. 2 Smt. Usha, is mother of the deceased. She has stated that her daughter (Dolly) informed her that accused demanded ` one lac and a vehicle, on which ` 30,000/- were arranged, and given to Manoj (accused/appellant). This witness has also stated that after Rakshabandhan accused Manoj Kumar again made demand for money. In the cross-examination this witness has stated that no report relating to MARPEET allegedly committed by Manoj was made to the police. 10 8. P.W. 3 Saurav Kumar, is cousin of the deceased who has also corroborated the prosecution story about the demand of dowry made by accused Manoj Kumar. 9. It is suggested by the prosecution to the above witness that deceased had some affair with one Ravindra, and that is why she was not happy with marriage with accused Manoj Kumar but said fact has been categorically denied by all the three witnesses of the fact. But that does not appear to be the reason for committing suicide by Dolly. The prosecution has proved factum of unnatural death of the wife of the accused that too within 50 days, and it is also shown on the record that accused made demand of dowry, and harassed his wife for non fulfillment of demand of dowry by adducing evidence of P.W. 1 Pravesh Kumar, P.W.2 Smt. Usha and P.W. 3 Saurav Kumar. In the circumstances, the presumption under section 113B of Indian Evidence At, 1872, gets attracted. Therefore, it was for the accused Manoj Kumar with whom his wife was living to show that for what reason his wife died unnatural death. The only witness D.W. 1 Anita examined on behalf of defence do not say even a single word if Dolly had any relation with any Ravindra or anyone else. 11 10. Shri Lok Pal Singh, learned counsel for the appellant argued that P.W. 1 Pravesh Kumar stated that he took loan from one Baljore to make payment of ` 30,000/- to accused Manoj Kumar but said Baljore was not examined by the prosecution. I have considered said submission, and after carefully going through the evidence on record, I do not find that the testimony of P.W. 1 Pravesh Kumar can be disbelieved merely for the reason that Baljore was not examined by the prosecution. 11. It is also contended on behalf of the appellant that the deceased used to take drugs, and she might have committed suicide due to that reason. However, the contention appears to be without legs as there is nothing on the record to show that deceased used to take drugs. She was a 18 years old girl from a lower middle class family, as is clear from the cross- examination of P.W. 1 Pravesh Kumar and P.W. 2 Usha. 12. Attention of this Court is drawn to the case of T. Aruntperunjothhi vs. State (2006) 9SCC page 467, it is argued on behalf of the appellant that unless the cruelty is shown soon before the death, it cannot be said that ingredients of offence punishable under section 304B IPC, are made out. I have gone through 12 the said case law. In said case after two years of marriage the deceased had died unnatural death. In the present case it is within 50 days, and the alleged cruelty is said to have been committed not only in the month of July but also in the month of August before the deceased was taken to Rishikesh. As such, the aforesaid case law is of no help to the appellant. Attention of this Court is also drawn to the case of Durga Prasad Vs. State of M.P. (2010) 9SCC page 73, and it is pleaded that mere unnatural death of the deceased does not attract the provisions of section 304B IPC. In the aforesaid case, the Apex Court has found that there was no charge relating to the offence punishable under section ¾ Dowry Prohibition Act, as such the cruelty was found not proved connected with demand of dowry. On the other hand, in the present case the facts are different, and there is charge framed under section ¾ Dowry Prohibition Act, and the witnesses P.W. 1 Pravesh Kumar, P.W. 2 Smt. Usha, and P.W. 3 Saurav Kumar have stated that demand of dowry was made. Also the case of Biswajeet Halder vs. State of W.B. (2008) 1SCC 202, is inapplicable to the present case for the reason in said case deceased had committed suicide after receiving news that one of her relatives died. On the other hand on behalf of prosecution, reliance is placed in the case of G.V. Siddaramesh vs. State of Karnataka (2010) 13 3SCC 152, in which the Apex Court affirmed the conviction of the appellant on similar facts. 13. For the reasons as discussed above, this Court finds no force in this appeal. Accordingly, the appeal is dismissed. Conviction and sentence recorded by the trial court is affirmed. The appellant Manoj Kumar is in jail. Let the copy of this judgment be sent to the Superintendent of Jail concerned. Lower court record be sent back. (Prafulla C. Pant, J.) Parul 08.08.2011