1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 796 of 2001 (D Old No. 89 of 2000) Chhinder Singh S/o Nanak Singh R/o Village Tumariyadam Police Station Ram Nagar District Naintal ...........Appellant(In jail) Versus State of U.P (now State of Uttarakhand) …..................Respondent Alongwith Criminal Appeal No. 2105 of 2001 (Old No. 1669 of 2000) 1. Smt Uttami Kaur W/o Nanak Singh 2. Km Krishna Kaur D/o Nanak Singh Both are resident of village 2 Tumariyadam, Police Station Ramnagar, Dist Nainital ..........Appellants(In jail) Versus State of U.P (now State of Uttarakhand) …..................Respondent Smt Pushpa Joshi, Advocate, present for the appellants. Shri P.S.Bohara, Brief Holder, present for the State. Coram: Hon’ble Prafulla C. Pant, J. Hon'ble Sudhanshu Dhulia, J. Oral: Hon'ble Prafulla C.Pant, J. These two appeals, are directed against the judgment and order dated 12.07.2000, passed by Sessions Judge, Nainital, in Sessions Trial No. 66 of 1999, whereby said court has convicted the appellants namely Chhinder Singh, Smt Uttami Kaur and Ms. Krishna Kaur under section 302 read with section 34 of Indian Penal Code, 1860,(for short I.P.C.) and directed each one of the convicts to undergo imprisonment for life and also to pay fine of ` 5000/-. It is further directed that the defaulter shall undergo imprisonment for a further period of one year for non 3 payment of fine. (2) Heard learned counsel for the appellants and learned counsel for the State, and perused the entire lower court record. (3) Prosecution story, in brief, is that Smt Rajo Kaur (deceased) was daughter of PW1 Kashmir Singh. She got married to accused/appellant Chhinder Singh only six months before the incident . On 24.11.1998, PW1 Kashmir Singh (complainant) lodged First Information Report at police station Ram Nagar, Dist Nainital, that accused/appellants Chhinder Singh (husband), Uttami Kaur (mother in law) and Krishna Kaur (sister in law) used to beat Rajo Kaur and have killed her. It is further alleged in the First Information Report that after the marriage, the deceased (Rajo Kaur) was subjected to cruelty, and she was taunted for insufficiency dowry given by her father. It is also mentioned in the First Information Report that Pokhar Singh (PW3), on 24.11.1998, told the complainant that he saw deceased (Rajo Kaur) being assaulted by her in laws, when he (PW1) reached in the house of accused he saw his daughter lying dead. It is also mentioned that when the complainant asked Nanak Singh (father in law) as to how Rajo Kaur has died, he replied that she had committed suicide. On the basis of said report the police registered crime no. 1141 of 1998 against accused/appellants Chhinder 4 Singh, Uttami Kaur and Krishna Kaur, relating to offences punishable under section 498A and 304B I.P.C. The investigation was taken up by PW7 Smt Vimla Gunjyal (Circle Officer) on 25.11.1998. Meanwhile, on 24.11.1998, at about 16.30 pm, dead body of the deceased was taken into their possession by the Police and inquest report (Ex A-3) was prepared. The Police also got prepared Form No. 13 (Ex- A4), Sketch of the dead body (Ex -A5), Letter to Chief Medical Officer ( Ex A6) and sample seal ( Ex A7). The dead body sent in a sealed cover for post mortem examination. PW4 Dr. Rakesh Singh conducted post mortem examination on the dead body of Rajo Kaur on 25.11.1998, at about 1.30 pm. He recorded three ante mortem injuries on the body, and opined in the autopsy report ( Ex A2) that deceased had died of asphyxia due to ante mortem injuries. The Investigating Officer interrogated the witnesses and inspected the spot. She prepared site plan ( Ex A9). After completion of the investigation, she submitted charge sheet (Ex A10) against accused/appellants namely Chhinder Singh, Smt Uttami Kaur and Ms.Krishna Kaur, for their trial in respect of offences punishable under section 498A and 304B I.P.C. (4) The Chief Judicial Magistrate, Nainital, on receipt of the charge sheet, after giving necessary copies to the accused, as required under section 207 of Cr.P.C, appears to have committed the case to the court of Sessions for trial. 5 Learned Sessions Judge, Nainital, on 30th of August 1999, after hearing the parties, framed charge of offences punishable under section 304B I.P.C and 498A I.P.C., and one punishable under section ¾ of Dowry Prohibition Act, 1961, to which all the three accused pleaded not guilty, and claimed to be tried. Thereafter, Learned Sessions Judge, Nainital, further framed an alternative charge of offence punishable under section 306 I.P.C and one punishable under section 302 read with section 34 I.P.C against all the three accused Chhinder Singh, Smt Uttami Kaur and Ms. Krishna Kaur to which they pleaded not guilty, and claimed to be tried. On this, prosecution got examined PW1 Kashmir Singh {(complainant), father of the deceased}, PW2 Smt Charan Kaur (mother of the deceased), PW3 Pokhar Singh (eye witness), PW4 Dr Rakesh Singh ( who conducted post mortem examination), PW5 Sub Inspector Mahesh Chandra Srivastava(who prepared the inquest report), PW6 Constable Yashpal Singh (who took the dead body in a sealed condition for post mortem examination) and PW7 Smt Vimla Gunjyal {(Circle Officer), who investigated the crime}. Oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which the accused admitted that Rajo Kaur (deceased) got married to accused/appellant Chhinder Singh six months before the date of incident i.e. 24.11.1998. As to the rest of the evidence they denied the same as false except that Rajo Kaur died on 24.11.1998. Accused Ms. Krishna Kaur in 6 her statement under section 313 Cr.P.C, disclosed her age 15 years regarding which there is no observation of the trial court that the same was false. In defence DW1 Nanak Singh (father in law of the deceased) was got examined who stated that his family had enmity with Pokhar Singh ( PW3). The trial court, after hearing the parties, found all the three accused/appellants guilty of charge of offence punishable under section 302 read with section 34 I.P.C. After hearing on sentence, each of the convicts was sentenced to rigorous imprisonment for life and directed to pay fine of ` 5000/- by the trial court. Aggrieved by said judgment and order dated 12.07.2000, passed by Sessions Judge, Nainital, in Sessions Trial No. 66 of 1999, these two appeals were preferred by the convicts before Allahabad High Court from where the same are received under section 35 of U.P. Reorganization Act, 2000 (central Act No. 29 of 2000), for their disposal. (5) Before further discussion, we think it just and proper to mention the ante mortem injuries recorded by PW4 Dr. Rakesh Singh at the time of post mortem examination on 25.11.1998 on the dead body of Rajo Kaur. The three ante mortem injuries mentioned in autopsy report ( Ex A2) are reproduced below:- 1. Multiple contusions on the upper part of the both sides of chest and shoulders in an area of 36 cm x 8cm. 7 2. Contusions of 5cm x 3cm present on the left side of thyroid cartilage and contusion of 3cm x 2cm present on the right side of thyroid cartilage. On cutting under lying the contusion under skin dry white and glistening cornue of hyoid bone broken on the right side. 3. Face congested and cyanosed including forehead and ears ( the total scull area above the thyroid cartilage is cyanosed and congested). On the internal examination the Medical Officer has found cornue of hyoid bone broken on the right side. The larynx was found congested. Both lungs were found congested. The Medical Officer has opined that deceased had died on asphyxia due to ante mortem injuries. The post mortem examination appears to have conducted by the team of two doctors. Another doctor Dr. Shamim Ahmad has endorsed on the autopsy report that he agreed with the findings recorded by the Dr. Singh, who conducted post mortem examination in his presence. From the medical evidence on record, read with the statement of PW4 Dr. Rakesh Singh, who prepared autopsy report ( Ex A2). It is proved that deceased had died a homicidal death. It is not the case of the defence that Rajo Kaur died natural death. Post mortem 8 examination report (Ex A2) shows that deceased was 18 years old. Now, we have to examine whether the prosecution has successfully proved charge of offence punishable under section 302 I.P.C., or that of one punishable under section 304B I.P.C or not. The trial court has opined that charge of offence punishable under section 302 I.P.C is proved. (6) PW1 Kashmir Singh (complainant) who is father of the deceased has stated that six months before the date of incident ( 24.11.1998) Rajo Kaur (deceased) got married to Chhinder Singh (accused/appellant). It is also stated by him that accused/appellant Uttami Kaur was mother in law and accused/appellant Ms. Krishna Kaur was sister in law (NANAD). The witness further states that he gave dowry as per his status. PW1 Kashmir Singh further states that two months after the marriage accused/appellants Chhinder Singh, Smt Uttami Kaur and Ms.Krishna Kaur started assaulting his daughter ( Rajo Kaur) . The witness further states that about 8-10 days before the date of incident also she was beaten by her husband, mother in law and sister in law. On this, Rajo Kaur was brought back to her parental house but the two other villagers Baburam Singh and Prem Singh promised that Chhinder Singh would not beat Rajo Kaur in future, nor he would demand the dowry from the deceased ( Rajo Kaur) was sent back to her husband's house. As to the incident PW1 Kashmir Singh states that he was ploughing his field around noon that Pokhar Singh ( PW3) 9 were came to him and told him that accused/appellants Chhinder Singh, Smt Uttami Kaur and Ms. Krishna Kaur were beating Rajo Kaur and have dragged her inside the house. According to this witness, when he reached to the house of the accused/appellant (Chhinder Singh) he saw his daughter Rajo Kaur lying dead on a cot in front of her husband's house, and all the three accused were absconding. The witness further narrates that thereafter he got scribed report ( Ex A1) and gave it at the police station. (7) Statement of PW1 Kashmir Singh got fully corroborated from the statement of PW2 Smt. Charan Kaur (mother of the deceased). She also narrates that about six months before the incident her daughter Rajo Kaur got married to Chhinder Singh. She has further stated that Uttami Kaur was mother in law and Ms. Krishna Kaur was sister in law of the deceased . She has also stated like PW1 Kashmir Singh that the dowry was given as per the status of the parties, but gold jewelery was not given. PW2 Smt. Charan Kaur further states that after about 2-3 months of the marriage accused started beating Rajo Kaur for the reason as to why she had not brought gold with her. She also stated that like PW1 Kashmir Singh that about 6-7 days before the death of Rajo Kaur, she was beaten by Chhinder Singh, Smt. Uttami Kaur and Ms. Krishna Kaur and when they promised not to beat in future nor would demand dowry she was sent back to her husband's house. 10 (8) PW3 Pokhar Singh is an eye witness who is neighbour of the deceased, he has stated in clear words that he saw at about noon (on the day of incident) accused/appellants Chhinder Singh, Smt. Uttami Kaur and Ms. Krishna Kaur beating Rajo Kaur and dragging her to inside the house. He further states that his father (Harnaam Singh) asked the accused not to beat her but the accused told that it was not his, (Harnaam Singh) concern. (9) The testimony of all the three witnesses PW1 Kashmir Singh, PW2 Smt. Charan Kaur and PW3 Pokhar Singh is natural and trustworthy. In the cross examination nothing has come out which creates doubt as to the statement made by the three witnesses in their examination in Chief. Having carefully gone through the evidence on record, we are of the view, that it is clearly proved on the record that deceased (Rajo Kaur) was subjected to cruelty for insufficiency of dowry given in the marriage and for the reason that the gold was not given in the marriage of the deceased (Rajo Kaur) with Chhinder Singh. Considering the date of death and the period after marriage and when the deceased (Rajo Kaur) was beaten, there is proximity between the unnatural death and the cruelty committed against the deceased (Rajo Kaur) for insufficiency of dowry. In our opinion, it is clearly established on the record that the accused/appellants namely Chhinder Singh (husband), Uttami Kaur (mother in law), and 11 Ms. Krishna Kaur (sister in law) have committed dowry death of Rajo Kaur. We do not agree with the trial court that charge of offence punishable under section 302 I.P.C read with section 34 is proved against the three accused, for the reason that it is not clear from the evidence on record, as to actually who strangulated the deceased (Rajo Kaur) out of the three accused nor is it clear that when there was prior meeting of mind between them. That being so, we hold that all the three accused /appellants are guilty of charge of offence punishable under section 304-B I.P.C., instead of the offence punishable under section 302 read with section 34 I.P.C. As such while accused/appellants deserve to be acquittal from the charge of 302/34 I.P.C, they are liable to be convicted under section 304B I.P.C. (10) Accordingly, both the appeals are partly allowed. Accused/appellants Chhinder Singh, Smt. Uttami Kaur and Ms. Krishna Kaur are acquitted of charge of offence punishable under section 302 read with section 34 I.P.C, but convicted under section 304B I.P.C. The sentence awarded by the trial court under section 302/34 I.P.C., is set aside. The accused/appellant Chhinder Singh is sentenced to twelve years rigorous imprisonment under section 304B I.P.C. He is in jail during the trial and pendency of this appeal, and said period will be deducted from the period of twelve years of imprisonment awarded by this court. Accused/appellant Uttami Kaur is sentenced to rigorous imprisonment for a 12 period of seven years under section 304 B I.P.C. She is on bail. Her bail is cancelled. The trial court shall take her into custody to make her serve out the sentence awarded by this court. As far as accused/appellant Ms. Krishna Kaur is concerned from the record it appears that she was juvenile at the time of incident, as such no sentence is being awarded against her under section 304 B I.P.C. The trial court record be sent back. Let a copy of this judgment be sent to the Superintendent of the jail concerned where appellant Chhinder Singh is lodged. (Sudhanshu Dhulia, J.) (Prafulla C. Pant, J.) 24.11.2010 Nahid