IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 475 of 2001 (Old No. 632 of 1995) Surya Prakash Kala S/o Sri Rameshwar Prasad Kala R/o II/81 Tehri Dam Colony Rishikesh, P.S. Rishikesh District Dehradun. ……Appellant. Versus State .……….Respondent. Shri Lokendra Dobhal and Shri D.C.S. Rawat, Advocates for the appellant. Shri Harish Pujari, A.G.A. and Shri Prabhakar Joshi, Brief Holder for the State. Shri Anil Dabral and Shri Shailendra Nauriyal, Advocates for the complainant. Coram:Hon’ble Prafulla C. Pant, J. Hon’ble B.S. Verma, J. Oral:-Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (herein after referred as Cr.P.C.), is directed against the judgment and order dated 16.03.1995, passed by learned Ist Additional Sessions Judge, Dehradun, in Sessions Trial No. 132 of 1991, whereby accused/appellant Surya Prakash Kala, has been convicted under Section 498A and 304B of Indian Penal Code, 1860 (herein after referred as I.P.C.). Accused/appellant has been sentenced to imprisonment for life under Section 304 B I.P.C., and rigorous imprisonment for a period of two years under Section 498 A I.P.C. 2 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story in brief is that accused/appellant Surya Prakash Kala got married to Sunita (deceased) on 05.03.1988, at Dehradun. After marriage, Sunita started living with her husband Surya Prakash (accused/appellant) in her matrimonial house at Rishikesh. According to prosecution, complainant Kulanand Sharma (P.W. 1), father of the deceased, gave sufficient dowry at the time of marriage but the accused/appellant and his parents were not satisfied with the dowry. They harassed the deceased for non fulfilment of demand of dowry. Meanwhile, two male children born out of the wedlock. On 24.05.1991, Sunita went to attend ‘SAGAAI’ (ring ceremony) of her younger sister at Dehradun. On that day, accused/appellant Surya Prakash Kala demanded two wheeler in dowry, which could not be fulfilled. After the ceremony, accused/appellant and his wife returned back to Rishikesh. On 26.05.1991, at about 11:30 a.m., Sunita was set on fire after sprinkling kerosene on her body. However, she was taken immediately for treatment to hospital and thereafter to Irwin Hospital, Delhi (now known as Jai Prakash Narain hospital). Also, information was got sent to the parents of Sunita through Ramesh Kudiyal (D.W. 3). The parents of Sunita also rushed to Delhi to see her. There Sunita succumbed to the injuries on the intervening night on 3 28-29th May 1991. Statement (Ext. A-3) of Kulanand Sharma (P.W. 1) was recorded by Sub-Divisional Magistrate on 29.05.1991, at Delhi. Thereafter, on 30.05.1991, post mortem examination was conducted in Maulana Azad Medical College, New Delhi, and autopsy report (Ext. A-4), was prepared. The autopsy report shows that in the opinion of the Medical Officer, who conducted the post mortem examination, death of the deceased had resulted due to septicaemia and shock as a result of infected fire burns, which were ante mortem and involving 95% of body surface area. Thereafter, on 01.06.1991, Kulanand Sharma (P.W. 1) father of the deceased, lodged First Information Report (Ext. A-1) at police station Kotwali Rishikesh, Dehradun, where it was registered as crime No. 296 of 1991, against accused/appellant Surya Prakash Kala and his parents (parents are acquitted by the trial court) in respect of offences punishable under Sections 498 A and 304B I.P.C. Initially crime was investigated by Sub-Inspector Baljeet Singh (P.W. 8) but later the investigation was transferred to Deputy S.P. Sudhakar Singh (P.W. 10). The witnesses were interrogated and site plan (Ext. A-10) was prepared. Documents from Delhi and the letters were collected. On completion of investigation, charge sheet (Ext. A-11), was filed against accused/appellant Surya Prakash Kala and his parents namely Rameshwar Prasad Kala and Rukmeshwari Devi, for their trial in respect of offences punishable under Sections 498 A and 304 B I.P.C. 4 4. The Magistrate, 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. The learned Additional Sessions Judge, Dehradun, on 02.11.1992, after hearing the parties, framed charge in respect of offences punishable under Sections 498 A and 304 B I.P.C. against all the three accused namely, Surya Prakash Kala, his father Rameshwar Prasad Kala and mother Rukmeshwari Devi. All the three pleaded not guilty and claimed to be tried. On this prosecution got examined P.W. 1 Kulanand Sharma (complainant and father of the deceased), P.W. 2 Maya Dayal (Priest of a temple), P.W. 3 Srikant Sharma (brother of the deceased), P.W. 4 Dr. Basant Lal (who conducted post mortem examination at Delhi), P.W. 5 Sushil Mehrotra (witness of the inquest report), P.W. 6 Sumit (minor son of the deceased and appellant), P.W. 7 Head Constable Kishmba Singh (who prepared check report of First Information Report), P.W. 8 Sub-Inspector Baljeet Singh (who started investigation), P.W. 9 Sanjeev Kumar Sharma (witness of preparation of recovery memo of clothes), P.W. 10 Deputy S.P. Sudhakar Singh (who completed the investigation). The oral and documentary evidence was put to the accused under Section 313 Cr.P.C. in reply to which all the three accused admitted that Sunita was married to Surya Prakash Kala on 05.03.1988, but in respect of rest 5 of the evidence, the same was alleged to be false. The parents of the accused/appellant pleaded in their statement under Section 313 Cr.P.C. that they used to live separately from their son (Surya Prakash Kala), as they had no cordial relations with him. On behalf of defence, D.W. 1 Surya Prakash Kala (accused/appellant, reference- Section 315 Cr.P.C.), D.W. 2 Anil Kumar Jain, who is said to have informed the accused that there had been fire in the house, D.W. 3 Ramesh Prasad Kudiyal through whom accused/appellant sent information to the parents of the deceased regarding the incident of fire and D.W. 4 T.S. Rawat, who has stated that accused/appellant took loan of Rs. 5,000/- for treatment of his wife. The trial court after hearing the parties, found that charge is not proved against accused Rameshwar Prasad Kala (father-in-law of deceased) and Rukmeshwari Devi (mother-in-law of the deceased), and acquitted them of the charge of offences punishable under Sections 498A and 304 B I.P.C. However, the trial court found accused/appellant Surya Prakash Kala (husband of the deceased) guilty of charge of offences punishable under Sections 498A and 304 B I.P.C. After hearing on sentence, the convict is sentenced to imprisonment for life under Section 304 B I.P.C. and rigorous imprisonment for a period of two years under Section 498 A I.P.C. Aggrieved by said judgment and order dated 16.03.1995, passed by Ist Additional Sessions Judge, Dehradun, in Sessions Trial No. 132 of 1991, this 6 appeal is filed before Allahabad High court on 25.04.1995, where it was admitted on 24.04.1995. The appeal is received by this Court under Section 35 of U.P. Reorganisation Act, 2000 (Central Act 29 of 2000). 5. 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. A-4) by Dr. Basant Lal (P.W. 4). External ante mortem injuries, mentioned in the autopsy report is reproduced below:- “Infected superficial dermoepidermal burns present over the front of face and neck. Both the upper limbs, both lower limbs except both soles, front of chest and abdomen and back of chest and abdomen sparing belt area around the umbilicus. Syinging of scalp hair eyebrow present. Blackening of face at places. Blister present on inner aspect of upper part of both thighs. Greenish yellowish discoloration pus present on the back and front of chest areas at places. Haemoconcentration was present on the limb areas at places. Degloning of both hands present. Approximate burnt area was about 95% of body surface area.” After post mortem examination, the Medical Officer recorded the opinion in the autopsy report that death of the deceased resulted due to septicaemia and shock 7 as a result of infected fire burns, which were ante mortem and involving about 95% of body surface area and 2-3 days old in duration. The evidence adduced by P.W. 4 Dr. Basant Lal read with the autopsy report (Ext. A-4) establishes on record that the deceased had died unnatural/homicidal death. Now the question before this Court is whether the accused/appellant made any demand of dowry and whether for non fulfilment of demand of dowry, the deceased was harassed by him, as a result of which she died the unnatural death, as mentioned above. 6. P.W. 1 Kulanand Sharma, is complainant and father of the deceased, who has stated that after one year of marriage of Sunita (deceased) with accused/appellant Surya Prakash Kala, their relations started deteriorating and the deceased used to complain that she was harassed by her husband and in- laws. It is further stated by this witness that accused/appellant used to ask her to bring money from her parental house. It is stated by P.W. 1 Kulanand Sharma, that on the date of ring ceremony of her younger daughter, when accused/appellant Surya Prakash Kala and Sunita came to his house, accused/appellant demanded scooter in dowry. The statement of this witness that deceased was subjected to cruelty for non fulfilment of demand of dowry, appears to be doubtful for the reason that in the detailed statement (Ext. A-3) of three pages, recorded 8 by Sub-Divisional Magistrate, at Delhi, he has not mentioned that any demand of dowry were made by the accused/appellant. Rather in cross examination before trial court, he has specifically stated that at the time of marriage neither Sunita’s husband nor her in- laws made any demand of dowry. However, he has stated that the deceased used to complain that sarcastical remarks were made to her in her matrimonial house. Even in the First Information Report (Ext. A-1) there is no mention of demand of scooter, made by the accused. Unless and until demand of dowry is made by or on behalf of the accused/appellant and for its non fulfilment, wife of accused/appellant is harassed neither the offence punishable under Section 498 A gets attracted nor the one punishable under Section 304 B I.P.C. 7. P.W. 2 Maya Dayal is Priest of a temple, who has stated that when the deceased got married to accused/appellant, father of the deceased gave sofa set, T.V. and other items of house hold, in dowry. This fact has been admitted by D.W. 1 Surya Prakash Kala (accused/appellant) that though there is no custom of dowry in the hills but he was given T.V., sofa-set etc at the time of marriage with the deceased. But the question before this Court is whether the accused made any demand of dowry and on its non fulfilment, subjected the deceased to cruelty or not. P.W. 2 Maya Dayal has stated that the deceased told him that her 9 husband asked her to bring money from her parental house. Statement of this witness does not appear to be natural. This witness (P.W. 2) appears to be telling a lie, as is evident from the statement made by him in the cross examination. In his cross examination, P.W. 2 Maya Dayal says that the deceased told about conduct of her husband and in-laws to his mother Angoori Devi. He further told that Angoori Devi had died way back in the year 1986. It is pertinent to mention here that it is admitted to the prosecution as well as to the defence that marriage between the accused/appellant and deceased had taken place in the year 1988. As such, there is no occasion for the deceased to disclose anything what had happened in her in-laws house to a person who had died before her marriage. 8. P.W. 3 Srikant Sharma, is brother of the deceased, who has stated that his sister Sunita (deceased) told him that Surya Prakash (accused/appellant) asked her to bring money from her parental house. This witness has further stated that at the time of ring ceremony of her younger sister, accused/appellant Surya Prakash demanded scooter. The reason for asking money, according to this witness (P.W. 3) was that parents of Surya Prakash wanted to construct a house near Rispna. Statement of this witness is also not trustworthy. The factum relating to the demand of dowry is neither in the statement of Kulanand Sharma (P.W.1), father of the deceased in Ext. A-3, recorded by 10 Sub-Divisional Magistrate, at Delhi, on 30.05.1991, soon after death of the deceased nor is there any mention of demand of scooter in the First Information Report (Ext. A-1). Apart from this, the reason disclosed by P.W. 3 Srikant Sharma that accused/appellant wanted money for construction of house by his father Rameshwar Prasad Kala, appears to be an after thought on the part of this witness. P.W. 3 Srikant Sharma in his cross examination admits that real mother of accused/appellant Surya Prakash is not alive. D.W. 1 Surya Prakash Kala, has stated that his mother died way back in the year 1970, when he was too young at Rai Bareilly. He has further stated that after his father got remarried to Rukmeshwari Devi, his relations with his parents got soured. It has also come on the record in defence evidence that parents of the accused/appellant used to live separately from accused/appellant Surya Prakash Kala and his wife Sunita Kala. In the circumstances, the demand of money, as stated by P.W. 3 Srikant Sharma, for construction of house by his parents appears to be doubtful. 9. P.W. 6 Sumit, is minor son of the deceased and accused/appellant. He was aged 5 years at the time of making statement in the court on 13.06.1994. The incident is of 1991. That means age of this witness at the time when his mother died was less than 3 years. It is hard to believe that a child who was aged less than 11 three years on the day of the incident would be able to remember what had happened in his presence. Statement of this witness that his father poured kerosene on his mother and set her on fire, appears to be totally tutored statement and cannot be relied upon. It has also come on the record that this child is living with P.W. 1 Kulanand Sharma (father of the deceased). 10. In the above circumstances, we do not find that the prosecution has shown that the deceased was subjected to cruelty in connection with demand of dowry, which is a necessary ingredient to constitute offence punishable under Section 304 B I.P.C. Assuming for a moment that the prosecution has shown it, as required under Section113B of Indian Evidence Act, 1872, there is ample evidence adduced on behalf of the defence showing that the deceased was not subjected to cruelty or harassment in connection with any demand of dowry. D.W. 1 Surya Prakash Kala (accused/appellant) has stated that there is no custom of dowry in the family of the deceased and the accused. He has further stated that he did not make any demand of dowry, which is admitted by Kulanand Sharma (P.W.1) himself. This witness has further proved letters (Ext. B-1, Ext. B-2, Ext. B-3, Ext. B-4, Ext. B-5, Ext. B-6 and Ext. B-7), written by the relations of parental side of the deceased. None of these letters indicate that there had been any demand of dowry or if the deceased was harassed at all for non fulfilment of 12 demand of dowry, rather these letters which were written from the parental side and sisters of the deceased, reflect that the accused/appellant and his wife had cordial relations. D.W. 2 Anil Kumar Jain, who was neighbour of the deceased and accused/appellant, has stated that accused/appellant and the deceased had good relations. This witness has further stated that on the day of the incident, when he saw smoke of fire coming out of the house of the deceased, he immediately went to accused/appellant Surya Prakash Kala and informed him. He further disclosed that when he saw the smoke of fire coming out of the house of the deceased, he went there and inquired from Sunita, who told him that she caught fire while cooking food. The witness has further stated that immediately accused/appellant Surya Prakash Kala took his wife to Kohli hospital, Rishikesh, for treatment from where she (deceased) was taken to Irwin hospital, Delhi (now known as Jai Prakash hospital), where she finally succumbed to the injuries. D.W. 3 Ramesh Kudiyal, has stated that while taking his wife to hospital, accused/appellant Surya Prakash, asked him to tell the parents of the deceased about the incident of fire. This fact is admitted by P.W. 1 Kulanand Sharma himself that Ramesh Kudiyal gave him information about the incident and he (P.W. 1) along with his wife went to Delhi to see his daughter in Irwin hospital. P.W. 1 Kulanand Sharma further admitted that Surya Prakash Kala (accused/appellant 13 was by the side of his wife (deceased) in Irwin hospital. D.W. 4 T.S. Rawat, an official employed in the office of the accused/appellant Surya Prakash Kala, has stated that the accused/appellant took loan of Rs. 5,000/- for medical treatment of his wife in the evening of 26.05.1991 (before the deceased was taken to Delhi for medical treatment). The conduct of the accused/appellant does not reflect that he had subjected his wife to cruelty. 11. For the reasons, as discussed above, we do not find that charge of offence punishable under Sections 498A or that of one punishable under Section 304 B I.P.C. is proved against accused/appellant Surya Prakash Kala. Therefore, the appeal is allowed. The impugned judgment and order dated 16.03.1995, passed by Ist Additional Sessions Judge, Dehradun, in Sessions Trial No. 132 of 1991, so far it relates to the conviction of the accused/appellant Surya Prakash Kala, is set aside. Accused/appellant Surya Prakash Kala, is acquitted of the charge of offences punishable under Sections 498 A and 304 B I.P.C. He is on bail. He need not surrender. (B.S. Verma, J.) (Prafulla C. Pant, J.) Dt:07.07.2009 Sweta 14 15 16 17 18 19