IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 399 of 2001 (Old No. 1966 of 1997) Rajiv Lochan Diwedi … Appellant Vs State of U.P. (Now Uttarakhand) … Respondent And Criminal Appeal No. 288 of 2002 (Old No. 121 of 1997) Sanjay Diwedi & another … Appellants Vs State of U.P. (Now Uttarakhand) … Respondent Sri Lokendra Dobhal, Advocate for the appellants Sri Nandan Arya, learned A.G.A., for the State Coram: Hon’ble B.C. Kandpal, J. Hon’ble Nirmal Yadav, J. [Judgment Per- Hon’ble B.C. Kandpal, J.] These two appeals, under Section 374 of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), have been preferred against the judgments and orders dated 21.10.1997, passed by learned Sessions, Pithoragarh, in Sessions Trial No. 36 of 1995 and Sessions Trial No. 21 of 1995 whereby accused/appellant, namely, Rajiv Lochan Diwedi has been convicted under Sections 304B r/w 34 of I.P.C., 498A of I.P.C. and under Section 4 of Dowry Prohibition Act and sentenced to undergo imprisonment for life, rigorous imprisonment for two years and simple imprisonment of six months respectively and accused/appellants, namely, Sanjay Diwedi and Ramanlata have been convicted under Sections 304B, 498A of I.P.C. and 2 4 of Dowry Prohibition Act and sentenced to undergo imprisonment for life and rigorous imprisonment for two years and simple imprisonment for six months respectively. Both the cases have been decided by a common judgment, by the trial court. 2. Prosecution story in brief is that accused/appellant – Sanjay Diwedi is the husband of the deceased – Smt. Neelam, accused – Rajiv Lochan is father-in-law and Smt. Ramanlata is mother-in-law of the deceased. Sanjay Diwedi got married to Smt. Neelam (deceased) on 06.05.1994. After marriage, Smt. Neelam started living with the accused persons in her matrimonial house at Pithoragarh. The parents of the deceased gave sufficient dowry according to their capacity at the time of the marriage, but even after the marriage, they continued to demand various items from Smt. Neelam and her parents. The accused/appellants started cruelty and torture to Smt. Neelam and ultimately on 22.06.1994 at about 07:00 a.m., Smt. Neelam (deceased) was set on fire after sprinkling kerosene on her body by her husband – Sanjay and his mother – Smt. Ramanlata. However, she was taken immediately for treatment to District Hospital, Pithoragarh. A telegram was sent by the accused – Sanjay to the father of the deceased – Om Prakash (P.W.3). On receipt of information, the parents of the deceased rushed to Pithoragarh and came to know about the incident. They went to District Hospital, Pithoragarh, where Smt. Neelam told her father that her husband – Sanjay Diwedi and mother- in-law – Ramanlata had put fire to her person by sprinkling kerosene oil on her. Considering the nature of injuries of Smt. Neelam, the doctors referred her to Mission Hospital, Bareilly for better treatment and from there she was shifted to District Hospital, Pilibhit where she succumbed to injuries on 3 24.07.1994. Her dying declaration was also recorded at District Hospital Pithoragarh by Sri Vishnu Singh Dhanik (P.W.6), Tehsildar, Pithoragarh. Constable Rajendra Singh (P.W.8), the then Head Moharir received the information over telephone from one Narendra Patni (P.W.2) and had entered the information in General Diary of the police station. Initially crime was investigated by S.S.I. – Surendra Singh Kuswaha (P.W.9) who registered the Case Crime No. 211 of 1994, under Sections 498-A of I.P.C. and Section 4 of Dowry Prohibition Act at police station Kotwali, District Pithoragarh against the appellants. S.I. Hayat Singh Sajwan (P.W.10) investigated the case and submitted the chargesheet against the accused/appellants – Sanjay Diwedi and Smt. Ramanlata Devi under Sections 498A and 3/4 of Dowry Prohibition Act and later on the after investigating the case Deputy S.P. – Jagmohan Sharma (P.W.12) who submitted the supplementary chargesheet against the accused/appellant – Rajiv Lochan Diwedi under Sections 304-B, 498-A of I.P.C. and 3/4 of Dowry Prohibition Act. 3. The Magistrate, on receipt of the chargesheet, after giving necessary copies to the accused/appellants, as required under Section 207 of Cr.P.C., appears to have committed the case to the Court of Sessions, for trial. The learned Sessions Judge, Pithoragarh on 28.03.1995, after hearing the parties, framed the charges against the accused/appellants. All the three pleaded not guilty and claimed to be tried. 4. On this prosecution got examined P.W.1 – Ganga Dutt Kapri – eyewitness; P.W.2 – Narayan Dutt Patni – who had given the information on telephone to the police station concerned; P.W.3 – Om Prakash – father of the deceased – 4 Smt. Neelam; P.W.4 – Smt. Anandi Devi – mother of the deceased; P.W.5 – Dr. J.N. Mishra – who conducted the postmortem of the deceased at Sardar Hospital, Plibhit; P.W.6 – Vishnu Singh Dhanik, Tehsildar – who recorded the dying declaration of Smt. Neelam on 22.06.1994; P.W.7 – Dr. P.K. Diwedi – who medically examined the deceased at District Hospital, Pithoragarh; P.W.8 – Rajendra Singh – who received the telephonic message of the incident and made G.D. entry of the same; P.W.9 – S.S.I – Surendra Singh Kushwah who registered the case crime No. 211 of 1994 and submitted the chargesheet against the accused – Rajiv Lochan Diwedi; P.W.10 – S.I. Hayat Singh Sajwan – who conducted the Investigation; P.W.11 – Dr. Surendra Dutt Saklani – who had given the mental condition of the deceased before recording dying declaration and P.W.12 – Jagmohan Sharma – Deputy S.P. – who investigated the case and submitted the chargesheet against the appellants. 5. The oral and documentary evidence was put to the accused/appellants under Section 313 of Cr.P.C., in reply to which they alleged that the evidence adduced against them was false. Accused – Sanjay has stated that on the morning of 22.06.1994, he was asleep in his house and woke up on hearing shouts of the neighbour and he saw that his wife was lying unconscious because of fire burn injures. He has also stated that the deceased was suffering from some mental disease. Smt. Ramanlata Devi has stated that at the time of incident she was not in the house. Accused – Rajiv Lochan has also stated that at the time of incident he was not in the house. However, no evidence in defence was adduced on behalf of the accused/appellants. 5 6. After hearing learned counsel for the parties and perusing the entire material available before it, the learned Sessions Judge, Pithoragarh found accused/appellant, namely, Rajiv Lochan Diwedi guilty of charge for the offence punishable under Sections 304B r/w 34 of I.P.C., 498A of I.P.C. and under Section 4 of Dowry Prohibition Act and sentencing him to undergo imprisonment for life, rigorous imprisonment for two years and simple imprisonment of six months respectively and accused/appellants, namely, Sanjay Diwedi and Ramanlata have been convicted under Sections 304B, 498A of I.P.C. and 4 of Dowry Prohibition Act and sentencing them to undergo imprisonment for life and rigorous imprisonment for two years and simple imprisonment for six months respectively vide judgment and order dated 21.10.1997. 7. Aggrieved by the said judgment and order, passed by the learned Additional Sessions Judge, this appeal was filed by the convicts/appellants before the Allahabad High Court. The appeal is received by this Court under Section 35 of the U.P. Re-organisation Act, 2000 (Central Act 29 of 2000). 8. Heard Sri Lokendra Dobhal, learned counsel for the appellants, Sri Nandan Arya, learned A.G.A. for the State and perused the record. 9. Before further discussion, we think it just and proper to mention here the ante mortem injuries, found on the person of the deceased at the time of post mortem examination, recorded in the autopsy report (Ext. Ka. 7) by Dr. J.N. Mishra (P.W. 5). The ante mortem injuries are being reproduced below:- 6 “Superficial to deep burn on neck , front and back of chest, front and back of abdomen (whole trunk). Front part left and right thighs. Right and left upper limb involved. Pus and gramlahur tissue present over wound. About 70 to 80% area involved.” 10. After post mortem examination, the Medical Officer recorded the opinion in the autopsy report that death of the deceased resulted due to exhaustion and asphyxia on account of fire burn injuries. The doctor also opined that the body was burn about 70 to 80%. 11. There is a report of the C.J.M., Pithoragarh, in which it has been stated that the appellant – Smt. Ramanlata Diwedi has died. Hence, the appeal against Smt. Ramanlata stood abated vide the Court’s order dated 17.02.2010. 12. To prove its case, the prosecution has produced Ganga Datt Kapri (P.W.1), who is the owner of the house where the appellants were residing. This witness has stated in his deposition that at the time of occurrence, the appellants and the deceased were residing as tenants in his house. This witness had seen Smt. Neelam (deceased) in flames of fire and crying for rescue. He had tried to save her by putting blankets on her and he took the injured - Smt. Neelam to the District Hospital, Pithoragarh with the help of neighbourers as well as the appellants. Narayan Datt Patni (P.W.2) is another witness produced by the prosecution who is the neighbour of the accused persons. This witness had informed the police about the incident on telephone. Om Prakash (P.W.3) is the father of the deceased who had stated in his deposition that accused – Rajiv Lochan had demanded from his a fridge as dowry and the accused – Sanjay had 7 demanded to change the furniture, which was given by him in the marriage. Smt. Anandi Devi (P.W.4) has stated in his deposition that her daughter (Smt. Neelam – deceased) told her that the accused Sanjay and his mother – Ramanlata had tortured her because they had not given sufficient dowry at the time of marriage and ultimately, they burnt her by setting fire on her. This witness has submitted that she came to know this fact when she met Smt. Neelam in the District Hospital, Pithoragarh. Dr. J.N. Mishra (P.W.5) on 24.07.1994 at 03:00 p.m. conducted the postmortem of the deceased at Sardal Hospital, Pilibhit. Vishnu Singh Dhanik (P.W.6) Tehsildar, Pithoragarh recorded the dying declaration of Smt. Neelam on 22.06.1994 at about 09:30 a.m. at District Hospital, Pithoragarh in the presence of Dr. S.D. Saklani (P.W.11). Dr. P.K. Diwedi (P.W.7) medically examined the deceased at District Hospital Pithoragarh and stated that the burn injuries, which the deceased had sustained were sufficient in normal circumstances to cause to her death. Sri Rajendra Singh (P.W.8) who had made entry in the G.D. on the basis of the information received on telephone. S.S.I. – Surendra Singh Kushwah (P.W.9) registered the case against the accused/appellants. S.I. – Hayat Singh Sajwan (P.W.10) who conducted the investigation and submitted the chargsheet before the court concerned. Sri Jagmohan Sharma – Deputy S.O. (P.W.12) – who conducted the investigation and submitted the chargesheet against the accused/appellants before the court concerned. 13. Learned counsel for the appellant has submitted that the evidence of Tehsildar (P.W.6) should not have been accepted so far as the dying declaration is concerned. The medical evidence does not show that the victim was in a position to give any statement. He has invited our attention 8 towards the autopsy report, which reveals that the deceased was burnt about 80%. He has further submitted that the prosecution has not produced bed head ticket, to show that at the time of recording the dying declaration, she was not under effect of any painkiller administered to her by that time. Therefore, under the aforesaid circumstance, the dying declaration cannot be accepted to be trustworthy. 14. We do not find any force in the submission advanced by learned counsel for the appellants. From the perusal of the record, it reveals that Dr. S.D. Saklani (P.W.11) examined Smt. Neelam (deceased) before recording her statement. This witness has given a certificate in respect of the mental condition of the deceased before recording dying declaration, wherein it is mentioned stated that Smt. Neelam was in her perfect sense to give statement. He has also deposed that fact on oath in the court. The record further reveals that he was also present at the time of recording the dying declaration. The doctor’s evidence also clearly indicates that it was possible for the deceased to make the statement in the dying declaration in which her thumb impression had also been affixed. Smt. Neelam (deceased) has deposed in her dying declaration that on the date of incident, at about 07:00 a.m. while she was preparing tea, her husband – Sanjay poured kerosene oil on her and lit fire. Whereupon, she ran crying. She has also stated in her statement that her husband intends to kill her for demand of dowry. She has also deposed that her mother-in-law also committed cruelty and she used to demand dowry from the parents. It cannot be said that there is no corroborative evidence of the statement contained in the dying declaration. 9 15. Section 304 B of I.P.C., provides that where death of a woman is caused by 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 will be called “dowry death”, and such husband or relative shall be deemed to have caused her dowry death. 16. Cruelty has been defined in the Explanation for the purpose of Section 498A. Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman is required to be established in order to bring home the application of Section 498A of IPC. Substantive Section 498A IPC and presumptive Section 113B of the Evidence Act have been inserted in the respective statutes by Criminal Law (Second Amendment) Act, 1983. It is to be noted that Sections 304B and 498A, IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the Sections and that has to be proved. The Explanation to Section 498A gives the meaning of ’cruelty’. In Section 304B there is no such explanation about the meaning of ’cruelty’. But having regard to common background to these offences it has to be taken that the meaning of ’cruelty’ or ’harassment’ is the same as prescribed in the Explanation to Section 498A under which ’cruelty’ by itself amounts to an offence. Under Section 304B it is ’dowry death’ that is punishable and such death should have occurred within seven years of marriage. 10 17. Another circumstance, which helps the prosecution to prove its case is paper Ext. Ka. 4 which is an invitation card, which shows that the marriage of Sanjay (accused) and Neelam (deceased) was solemnized on 6th May, 1994 and it is also not disputed that the occurrence took place on 22nd June, 1994. So it is apparent that the incident took place within a period of two months of the marriage. From the perusal of the statements of P.W.3 – Om Prakash – father of the deceased as well as P.W. 4 – Smt. Anandi Devi who have specifically stated that Smt. Neelam told them that her husband and mother-in-law were making complaint about the bad quality of furniture given in the marriage and they were not satisfied with it. The testimonies of these two witnesses appear to be trustworthy. Apart from this, the statements of two witnesses, namely, P.W. 3 Om Prakash and P.W. 4 Smt. Anandi Devi as well as dying declaration it is clear that the deceased was subjected to cruelty soon before her death for non fulfillment of demand of dowry. 18. Section 113 B of Indian Evidence Act, 1872, provides that 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 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 dowry death. On reading the evidence adduced by the prosecution in the light of the aforesaid provision of law, we are in agreement with the trial court to the extent that the prosecution has been successful to prove the charge of offence punishable under Section 304 B I.P.C. and one punishable under Section 498 A I.P.C. as against accused/appellant Sanjay (husband). 11 19. Learned counsel for the appellant has submitted before us that the accused – Rajiv Lochan (father-in-law) has been falsely implicated in the case. He has further submitted that he has not been named in the First Information Report. He has also invited our attention towards dying declaration and submitted that the deceased had not named the father- in-law anywhere in her dying declaration. Hence, the conviction and sentence imposed against him by the trial court is liable to be set aside. 20. Having reassessed the entire evidence on record, we are of the view that it cannot be ruled out that the name of father-in-law – Rajiv Lochan Diwedi is falsely implicated in the present case. From the perusal of the record, it reveals that there is nothing on record, which may connect this person to the commission of crime. From the perusal of the First Information Report as well as dying declaration, no specific allegation against the accused came into picture. Even the deceased had not named this person in her dying declaration for making any demand of dowry or cruelty. Having gone through the lower court record, we are of the opinion that the prosecution has not been able to establish the charge of offences punishable under Section 304 B r/w 34 of I.P.C. or that of Section 498 A I.P.C. as well as Section 4 of Dowry Prohibition Act beyond reasonable doubt as against accused/appellant – Rajiv Lochan Diwedi from the evidence adduced by it, in the case. There is absolutely no evidence available on record, which may connect the accused – Rajiv Lochan Diwedi (father-in-law) to the commission of crime. Therefore, the conviction recorded by the trial court and sentence awarded to him, cannot be sustained. We are of the view that the prosecution has utterly failed in establishing the guilt of this person and he is liable to be acquitted for the 12 offences punishable under Sections 304B r/w 34 of I.P.C., 498A of I.P.C. and under Section 4 of Dowry Prohibition Act. 21. We again on scrutinizing the entire evidence adduced by the prosecution witnesses find that their testimony is natural, consistent and trustworthy. We agree with the findings of the trial court that the prosecution has successfully proved charge of offence punishable under Sections 498-A and one punishable under Section 304-B of I.P.C. and Section 4 of Dowry Prohibition Act against the accused – Sanjay (husband of the deceased). We uphold the conviction recorded by the trial court. However, as far as the sentence awarded by the trial court against the accused – Rajiv Lochan is concerned, the same is liable to be set aside. 22. For the reasons recorded above, the appeal No. 288 of 2002 filed by the accused/appellant – Sanjay Diwedi is dismissed. The conviction and sentence of accused/appellant – Sanjay Diwedi in respect of offences punishable under Sections 304B, 498A of I.P.C. and Section 4 Dowry Prohibition Act is affirmed. He is already in jail. He shall be detained in jail to serve out his remaining period of sentence awarded by the trial against him. As the accused/appellant – Smt. Ramanlata Diwedi has died during the pendency of this appeal; therefore, the appeal on behalf of this appellant stands abated. 23. The appeal No. 399 of 2001 filed by accused/appellant – Rajiv Lochan Diwedi is allowed. The conviction and sentence recorded by the trial court against this accused/appellant – Rajiv Lochan Diwedi punishable under Section 304B r/w 34, 498A of I.P.C. and Section 4 of Dowry Prohibition Act is set aside. The appellant – Rajiv 13 Lochan is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. 24. Let the copy of this judgment along with the record of the case be sent to the court below for compliance. The court below will give compliance report within two months from the date of the receipt. 25. Let the copy of this judgment be place in CRLA No. 288 of 2002. (Nirmal Yadav, J.) (B.C. Kandpal, J.) 06.04.2010 ASWAL