HIGH COURT OF UTTARANCHAL AT NAINITAL (Court’s order whether the case is or not approved for reporting) (Chapter VIII Rule 32(2) (b) Description of the Case. Criminal Appeal No. 1429 of 2001 (Old No. 1695 of 1996) Anand Singh ….Appellant Vs. State …..Respondent Approved for reporting. Not approved for reporting. Date of Decision 16th September 2004. Initial of Judge. _______________ _______________ IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Criminal Appeal No. 1429 of 2001 1695 of 1996 (Old No.) Reserved Anand Singh S/o Sri Teku Singh @ Tek Chand (was posted as Lance Naik I.T.B.P. Mussoorie) R/o Village Mahra P.S. Gannaur District Sonepat HARYANA …… Appellant Versus State …. Respondent Sri Prem Prakash assisted by Sri S.S. Yadav learned counsel for the appellant Sri U.P.S. Negi – Addl. Advocate General learned counsel for the State Coram: Hon’ble M.M. Ghildiyal, J. Hon’ble B.C. Kandpal, J. (Delivered by Hon’ble B.C. Kandpal, J.) This appeal arises out against the judgment and order dated 03.09.1996 passed by Sessions Judge, Dehradun in S.T. No. 27 of 1993 State Vs. Anand Singh and another, convicting the appellant Anand Singh under Sections 304-B, 498-A, I.P.C. and Section 3/4 of Dowry Prohibition Act and sentencing him for life imprisonment, 3 years rigorous imprisonment and a fine of Rs. 5,000/- and 5 years rigorous imprisonment and a fine of Rs. 15,000/- respectively. As one accused/convict has not filed any appeal, hence, we are concerned only with regard to the appeal of accused/appellant Anand Singh which is being decided by us. Brief facts of the prosecution case as emerged out from the record are that Smt. Lado Devi also known by the name of Sudesh D/o Netram was married to the accused/appellant Anand Singh on 08.06.1986. Netram father of Smt. Lado Devi had provided sufficient dowry and gifts to the best of his capacity but the appellant was not satisfied, therefore, after few months of the marriage Smt. Lado Devi started complaining to her parents with regard to the harassment committed upon her for not bringing television, refrigerator, fan, sewing machine, scooter. Smt. Lado Devi had always been taunted for not bringing sufficient dowry and of coming from a pauper family. On account of cruelty committed upon Smt. Lado Devi by her husband Anand Singh and his family members, she had started living with her parents. After a year, attempt was made by Netram, father of Smt. Lado Devi, with the help of some friends and relatives to persuade the appellant Anand Singh and his family members for accepting Smt. Lado Devi, but they refused to do so till their demands were fulfilled. Netram, thereafter, arranged some valuable articles and Smt. Lado Devi, was sent back to here in-laws place but this did not satisfy the appellant Anand Singh and his family members. The appellant Anand Singh ultimately sent a message to Netram, father of Smt. Lado Devi for making an arrangement of Rs. 30,000/-. Netram could, however, arrange a sum of Rs. 15,000/- by selling one of his Kachcha House and borrowed a sum of Rs. 10,000/- from his cousin brother. Thereafter, paid an amount of Rs. 24,000/- to the appellant Anand Singh on 16.05.1992. The appellant Anand Singh thereafter on 17.05.1992 took Smt. Lado Devi with him to Mussoorie where he was posted in I.T.B.P.. Anand Singh had taken a room on rent at the ground floor of Parvati Bhawan at Mussoorie. Several other employees of I.T.B.P. had been residing in the adjoining rooms in the same building. On 08.06.1992 at about 9:15 A.M. Smt. Lado Devi bolted the door of the room from inside and set herself to fire after sprinkling kerosene oil on her body. On hearing cries of Smt. Lado Devi Arjun Singh, a Naik in I.T.B.P., also a neighbour came out of his room and broke open the door. Smt. Lado Devi was immediately rushed to I.T.B.P. hospital at Mussoorie where Dr. R.N. Mishra and Dr. N.K. Tyagi attended her with one lady Dr. Alka Sharma. A medical sheet was opened at the hospital and the doctors found 70% burn injuries on the whole body below the neck. General condition of Smt. Lado Devi was fair and the doctors found that she was responding verbal commands and was conscious and talking. Adjutant R.C. Baijwan of the I.T.B.P. immediately came to the hospital after receiving information and Smt. Lado Devi gave dying declaration before the Adjutant R.C. Baijwan in the presence of the doctors. This dying declaration was recorded by the adjutant R.C. Baijwan and in her dying declaration deceased Smt. Lado Devi stated that her husband Anand Singh used to ask her to bring Rs. 1.5 lakh from her parental house. She also stated that Anand Singh used to take alcohol and beat her in connection with dowry demand. She has further stated in her dying declaration that L/Naik Rajpal, a next-door neighbour was friendly to Anand Singh and used to caste an ill eye on her. He also used to poison the ears of Anand Singh relating to the character of Smt. Lado Devi. Anand Singh on account of this had badly beaten to Smt. Lado Devi and administered to her some tablets of ‘Kapoor’. When it could not cause the desired harm, the appellant Anand Singh threatened Smt. Lado Devi by telling her either to finish herself by the evening or he would kill her. She has further stated that one day before the incident, Rajpal made an attempt to rape her in the early hours at about 4 or 5 A.M. and on her resistance Rajpal asked her either to concede his demand or to face consequences as Anand Singh placed full reliance upon him. She further stated that she was finishing her life because of all the aforesaid ill treatment with her, by her husband. After the dying declaration was recorded, Smt. Lado Devi was shifted to Doon hospital on account of her critical condition. Smt. Lado Devi breathed her last while she was on the way to Doon Hospital. Jai Prakash Uttarakhandi, the landlord of Parvati Bhawan lodged a report of the incident at P.S. Mussoorie at about 13:15 hours on 08.06.1992. The police immediately got the case registered and the Investigating Officer – Dharmveer rushed to I.T.B.P. hospital and met Smt. Lado Devi before she moved out from there to Doon hospital. The Investigating Officer also recorded the statement of Smt. Lado Devi at I.T.B.P. hospital. After the death of Smt. Lado Devi, the case was altered under Section 306 I.P.C. read with ¾ Dowry Prohibition Act and subsequently 304-B I.P.C. was also added. The police after completing investigation submitted chargesheet under Section 498-A, 306 and ¾ Dowry Prohibition Act as well as under Section 354 I.P.C. against the accused Anand Singh and Rajpal. After submission of the chargesheet, the accused were committed to the court of Sessions and the trial court framed charges under Section 306 I.P.C. against the accused Rajpal as well as under Section 306 alternatively under Sections 304-B, 498-A I.P.C. and Sections ¾ Dowry Prohibition Act against the accused/appellant Anand Singh, on 22.09.1993. The accused persons denied of the charges leveled against them and claimed their trial. The prosecution in order to support its case produced P.W.1 Netram (father of the deceased) P.W. 2 Dharamveer (Investigating Officer), P.W. 3 Ram Chandra, P.W. 4 Ghamandi, P.W. 5 Jai Prakash, P.W. 6 Dr. N.K. Tyagi, P.W.7 R.C. Baijwan (Adjutant), P.W. 8 Dr. R.N. R.N. Mishra, P.W.9 Arjun Singh, P.W. 10 R.K. Kanojia (S.I.) P.W.11 Rajendra Singh (Dy. S.P.) P.W. 12 Dharamveer Singh (S.I.) P.W. 13 Dr. B.C. Ramola, P.W. 14 Mahesh Singh (constable) and P.W. 15 Om Prakash Pandey (constable). After the evidence of the prosecution was over, the statement of the accused were recorded under Section 313 Cr.P.C. The accused adduced D.W.1 Hav. Ram Babu of I.T.B.P. in their defence. Learned trial court, after having perused the entire evidence on record and hearing the learned counsel for the parties, convicted the accused/appellant Anand Singh under Sections 304-B, 498-A I.P.C. and ¾ Dowry Prohibition Act. The trial court sentenced the accused/appellant Anand Singh for life imprisonment under Section 304-B I.P.C., 3 years rigorous imprisonment and a fine of Rs. 5,000/- under Section 498-A I.P.C. and 5 years rigorous imprisonment and a fine of Rs. 15,000/- respectively under Section 3 of the Dowry Prohibition Act. The trial court also convicted another accused Rajpal under Section 354 I.P.C. and sentenced him 2-year rigorous imprisonment and fine of Rs. 5,000/- vide judgment and order dated 03.09.1996. Feeling aggrieved by the aforesaid impugned judgment and order the accused/appellant Anand Singh preferred appeal before the Hon’ble Allahabad High Court which has been transferred to this Court after creation of Uttaranchal, for disposal. We have heard learned counsel for the parties and perused the record. Learned counsel for the appellant has argued before us that it is not established on the basis of the record that the marriage of Smt. Lado Devi with the appellant Anand Singh ever took place. It has also been argued that the provision of Section 304-B I.P.C. would not be attracted in a case of mistress, as the same would only be effective when the deceased Smt. Lado Devi was a legally wedded wife. It has also been submitted that the death should have occurred within a period of 7 years of marriage. It has also been submitted that the evidence do not disclose anywhere that there had ever been any demand of dowry and the deceased was subjected to the cruelty on account of demand of dowry. It has further been submitted that the deceased Smt. Lado Devi committed suicide on account of the humiliation and advances made by another accused Rajpal. It has further been submitted that the alleged dying declaration in the present case appears to be fabricated and tainted, as the physical and mental condition of the deceased could not be said to be fit for giving the dying declaration in view of the medical evidence available on record. In order to consider the arguments advanced before us, it would have to be assessed as to whether the deceased committed suicide on account of the humiliation and advances made by Rajpal or on account of cruelty committed upon her by her husband, demanding dowry. It has also to be assessed that, if the deceased Smt. Lado Devi had committed suicide otherwise than under normal circumstances as a result of cruelty committed upon her on account of demand of dowry then the same would bring the offence committed by the appellant under the provisions of Section 304-B and Section 498-A of the I.P.C. Before assessing the evidence on record, it will be pertinent to reproduce certain provisions of law in order to make the picture clear. Section 113-A of Indian Evidence Act which deals with presumption as to the abetment of suicide by a married woman runs as follows:- ‘’113-B Presumption as to abetment of suicide by a married woman. When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and is shown that she had committed suicide within a period of seven years from the date of her marriage, and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such, suicide had been abetted by her husband or by such relative of her husband. Explanation For the purpose of this Section, “Cruelty” shall have the same meaning as in Section 498-A of the Indian Penal Code (45 of 1860)” Further Section 113-B of Indian Evidence Act deals with the presumption as to dowry death in following manner:- ‘’113-B Presumption as to dowry death – When the question is whether a person has committed the dowry death of 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)” Provision of Section 306 I.P.C. would also be relevant, which runs as follows:- “Section 306 – Abetment of suicide – If any person commits suicide whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” Further provision of Section 304-B I.P.C. which deals with dowry death would also be pertinent to be perused and it runs as follows:- “Section 304-B 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 purposes 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 term which shall not be less than seven years but which may extend to imprisonment for life.” “Section 498-A which deals with cruelty by husband or relative of husband is as follows:- “Section 498-A – Husband or relative of husband of a woman subjecting her to cruelty – Whoever being the husband or the relative of a woman, subject such women, to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation:- For the purposes of this Section, ‘cruelty’ means:- a) Any willful conduct which is of such a nature as is likely to drive, the woman to commit suicide or to cause grave injury or danger to life, limb, or health (whether mental or physical) of the woman; or b) Harassment of a women where such harassment is with a view to coercing her or any person related to her to meet many unlawful demand for any property or valuable security is on account or failure by her or any person relating to her to meet such demand.” Again, it would be pertinent to mention few provisions of Dowry Prohibition Act. Section 2 of Dowry Prohibition Act defines dowry as follows:- “2. Definition – In this Act, unless the context otherwise requires:- i) “dowry” means any property or valuable security given or agreed to be given either directly or indirectly- a) by one party to a marriage to the other, or b) by the parents of either party to a marriage or by any other persons, to either party to the marriage, or to any other person; at or before or after the marriage as consideration for the marriage of the said parties, but does not include dower or Mehi in the case of persons to whom the Muslim Personal Law (Shariat) applies. Explanation I: For the removal of doubts it is hereby declared that any presents made at the time of marriage to either party to the marriage in the form of cash ,ornaments, clothes, or other articles, shall not be deemed to be dowry within the meaning of this Section, unless they are made as consideration for the marriage of the said parties. Explanation II. The expression valuable security’, has the same meaning as in Section 30 of the Indian Penal Code (45 of 1960) ii) “marriage expenses” shall include expenses incurred directly or indirectly at or before the mieeage on- a) Thakka, Segai, Tikka, Shagan and Milni ceremonies b) The gifts made by one party to a marriage to the other party to the marriage or by the parents, grand parents and brothers of either party to a marriage, to either party to the marriage or the blood relations thereof. c) Illuminations, food and the arrangements for serving food to them members of the marriage party and other expenses incidental thereto. Explanation III: a) For the removal of doubts, it is hereby declared that any gift made by a person other than those specified in sub clause. b) At the time of marriage to either party to the marriage shall not be deemed to be marriage expenses shall not be deemed to be marriage expenses (ide Haryana Act 33 of 1976, Section 2 (w.e.f. 11.08.1966) Further Section 8-A of the Dowry Prohibition Act, if perused, it reveals that the shifts of burden of proof would be on the accused to show that he had not committed the offence. Section 8-A runs as follows:- “Section 8-A Burden of proof in certain cases - Where any person is prosecuted for taking or abetting the taking of any dowry under Section 3, or the demanding of dowry under Section 4, the burden of proving that he had not committed an offence under those sections shall be on him.” Now in the light of the aforesaid legal provisions, we have to scrutinize evidence in order to see as to there was Demand of dowry by the appellant and whether there was any harassment or ill treatment meted out to Smt. Lado Devi deceased on account of such demand. The first point for consideration in the instant case is whether the deceased was married with the appellant Anand Singh or she was living with Anand Singh as his mistress. Learned counsel for the appellant has vehemently stressed on the paper Ex. Ka. 7 – dying declaration which runs as follows:- “MERA PATI LANS NIAK ANAND SINGH MUJHE GHAR SE BHAGA KAR LAYA THA.’’ Learned counsel for the appellant has thus submitted that in view of the aforesaid statement given by the deceased in her dying declaration it cannot be presumed that the deceased Smt. Lado Devi was illegally wedded wife of the appellant Anand Singh. We fail to appreciate the argument of the learned counsel for the appellant as the word “ BHAGA KAR” could have appeared in the dying declaration on account of some mistake in hearing in hearing by the Officer who recorded the dying declaration. In the dying declaration itself the deceased, at several places referred the appellant Anand Singh as her husband, hence, there cannot be any confusion that Smt. Lado Devi deceased was the wife of the appellant Anand Singh. Further Netram (P.W.1) as well as Dharamveer (P.W.2), father and brother of the deceased respectively have deposed that the deceased Smt. Lado Devi was married to Anand Singh. Similarly, Ram Chander (P.W.3) has also deposed the same in his evidence before the Court. The appellant Anand Singh in his statement under Section 313 Cr.P.C. has also admitted the fact of his marriage with Smt. Lado Devi. The invitation card pertaining to the marriage of Smt. Lado Devi with the appellant Anand Singh available on the record clearly indicates that the marriage between Smt. Lado Devi and Anand Singh was solemnized on 08.06.1986 at Sonipat. Learned counsel for the appellant has cited before us following decisions in support of his submission that the marriage would include only the valid marriage as provided in Hindu Marriage Act:- 1) AIR 1982 SC 1021 (Kake Singh Vs. State of M.P.) 2) 1994 Suppl. (2) SCC 539 (Pr. 3) (Mani Ram Vs. State of M.P.) 3) (1999) 7 S.C.C. 695 (Pr. 8) (Paparambaka Rosamma Vs. State of M.P.) 4) (2002) 1 SCC 527 (Panch Deo Singh Vs. Bihar) 5) (2001) 5 SCC 254 (Pr. 10) (Uka Ram Vs. Raj) 6) (2001) 6 SCC 407 (Pr. 7, 14, 20) (Arvind Singh Vs. State of Bihar) 7) (2002) 7 SCC 56 (Pr. 32) Ramilaben Hasmukhabha Krishi Vs. State of Gujrat) We have gone through the aforesaid decisions cited before us and we are of the view that these judgments do not help the appellant in any manner, as we have already observed that the marriage card available on the record clearly establishes that the mirage of Smt. Lado Devi was solemnized with Anand Singh on 08.06.1986 at Sonipat. The prosecution witnesses produced before the Court have also categorically deposed before this Court that Smt. Lado Devi was legally wedded wife of Anand Singh. Learned counsel for the appellant has submitted before this Court that the prosecution has utterly failed to establish that the marriage of Smt. Lado Devi with the appellant Anand Singh had ever took place. Again we fail to appreciate this argument as we have already observed that father and brother of the deceased Smt. Lado Devi have clearly deposed that Smt. Lado Devi was married with the appellant Anand Singh in the year 1986 and she died within a period of seven years of her marriage otherwise than under normal circumstances. The specific question was put to the accused under Section 313 Cr.P.C. with regard to the marriage with Smt. Lado Devi deceased on 08.06.1986 and the accused /appellant answered this question in affirmative. Therefore, it is quite clear that Smt. Lado Devi was married with Anand Singh and she died otherwise than under normal circumstances within a period of seven years of her marriage. As regard, the suicide committed by Smt. Lado Devi, there is ample evidence on record which establishes that on 08.06.1992, Smt. Lado Devi sprinkled kerosene oil on her body and thereafter set her ablaze in a room which was in the tenancy of her husband accused – Anand Singh and on account of the burn injuries sustained by her, she died on the same day. In this regard, the evidence of Arjun Singh (P.W.9) would be relevant. This witness is the next door neighbour in the same premises and he has deposed that at about 9:15 A.M. on the date of the incident, he heard shrieks and cries of Smt. Lado Devi from inside her room. The room was bolted from inside and the smoke was coming out. He has further deposed that the door was broken and Smt. Broken and Smt. Lado Devi was taken out and rushed to I.T.B.P. hospital. The Adjutant/Assistant Commandant – R.C. Baijwan (P.W.7) of the academy was [ thereafter informed and this fact has also confirmed by R.C. Baijwan (P.W.7) of I.T.B.P. Academy. Dr. Narendra Kumar Tyagi (P.W.6) also confirmed this fact in his deposition that Smt. Lado Devi was brought to the hospital in a burnt condition on 08.06.1992 and he along with Dr. R.N. Mishra (P.W.8) attended her that time. Dr. R.N. Mishra (P.W.8) has also been produced and he corroborated the statement of Dr. Narendra Kumar Tyagi (P.W.6). Both the doctors have also deposed that it was decided to Shift Smt. Lado Devi to Doon Hospital on account of her critical condition. All the aforesaid evidence clearly establish that Smt. Lado Devi died on account of burn injuries suffered by her. In the dying declaration itself Smt. Lado Devi had stated that she was finishing herself because of the cruelty committed upon her by her husband. She had also stated that the neighbour Rajpal used to cast an evil eye on her and wanted to establish illicit relations. On her refusal, Rajpal poisoned the ears of Anand Singh who had badly beaten her. She has also stated that her husband tried to kill her by administering Napthaline (Kapoor) pills to her but they did not work. Thereafter, her husband told her either to finish herself or he would kill her. Therefore, it is quite clear that Smt. Lado Devi committed suicide on 08.06.1992 by sprinkling kerosene oil on her body and set her ablaze, on account of aforesaid cruelty. It is now to be decided whether the suicide