1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL** Criminal Appeal No.90 of 2010 Chandrashekhar Mishra S/o Shri Vaswa Nand R/o Tiloth, Police Station Kotwali District Nainital …..…Appellant ( in jail) Versus State of Uttarakhand ……….Respondent Shri Vinod Sharma, Advocate, present for the appellant. Shri Amit Bhatt, A.G.A., present for the State. Hon'ble Prafulla C. Pant, J. Hon'ble Servesh Kumar Gupta, J. Oral: 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 30.04.2010, passed by Sessions Judge, Uttarkashi, in Sessions Trial no. 13 of 2008, whereby said court has convicted accused/appellant Chandrashekhar Mishra under section 304 B, 498A of Indian Penal Code, 1860 (for short IPC), and 2 under section ¾ of Dowry Prohibition Act, 1961. Accused/appellant has been sentenced to imprisonment for life, 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 of ` 1,000/- under section 498A IPC, and rigorous imprisonment for a period of five years, and directed to pay fine of ` 15,000/- under section ¾ Dowry Prohibition Act, 1961, by the trial court. 2. Heard learned counsel for the parties, and perused the lower court record. 3. Prosecution story, in brief, is that accused/appellant Chandrashekhar Mishra got married to Sangeeta (deceased) on 04.12.2004, in District Uttarkashi. After the marriage of Sangeeta with the appellant she was subjected to cruelty for non fulfillment of demand of dowry made by her husband, and other relatives. It is alleged by P.W. 2 Mohan Lal Joshi (father of the deceased) that whenever his daughter Sangeeta came to her parental house she told that she has been subjected to cruelty, and her husband and in-laws are demanding rupees one lac (` 1,00,000/-). It is further 3 stated in the First Information Report that Sangeeta was ousted by her husband in the year 2006, after about six months of her marriage, and she remained in her parental house till 22.09.2007. During this period, while she was left deserted, she got issued a notice through her Advocate Dr. Nagendra Dutt Jagoodi (P.W.8) claiming maintenance at the rate of ` 2,000/- per month. On 23.09.2007, accused/ appellant Chandrashekhar Mishra came to house of his father- in-law P.W. 2 Mohan Lal Joshi, and gave undertaking in writing (Ex. A2) on a stamp paper that he would not demand any dowry, and he would not treat his wife with cruelty. After giving that written promise Sangeeta (deceased) went with her husband Chandrashekhar Mishra (accused/ appellant). Prosecution case is that the deceased was again subjected to cruelty, and on 28.04.2008, she consumed poison. She was taken by her husband Chandrashekhar Mishra to District Hospital, Uttarkashi, where she was admitted but on the very day died at 8:45 p.m.. On receiving information from the hospital police took dead body of the deceased in their possession, and prepared inquest report (Ex. A12) on 29.04.2008 at about 10:30 a.m.. Other necessary papers like police form no. 13 (Ex. 14), sketch of the dead body (Ex. A15), letter (Ex. 4 A17 requesting the Chief Medical Officer for post- mortem examination) were prepared, and dead body was sent for autopsy. Meanwhile at 10:45 a.m., on 29.04.2008, P.W. 2 Mohan Lal Joshi, father of the deceased, gave FIR (Ex. A3) at the police station Kotwali, Uttarkashi, on the basis of which crime no. 33 of 2008, was registered relating to offences punishable under section 498A, 304B, 120B IPC, and one punishable under section ¾ Dowry Prohibition Act, 1961, against the accused/appellant Chandrashekhar, his mother Sulochna, his brother Satyanarayan and his sister-in-law. Investigation was taken up by Circle Officer Hukum Singh Khati. P.W.1 Dr. S.K. Verma and Dr. B.S. Bisht conducted post-mortem examination on the dead body of Sangeeta on 29.04.2008, at about 3:30 p.m.. They did not find any ante-mortem injury but opined that deceased had died of suspected poisoning. The team of Doctors preserved viscera for chemical analysis. During investigation the half empty bottle of poison(endo sulphate insecticide) was recovered from the house of accused in respect of which recovery memo Ex. A1 was prepared. Accused/appellant Chandrashekhar Mishra was arrested on 29.04.2008. The recovered bottle of poison and viscera were sent for chemical analysis. 5 The Investigating Officer, after interrogating the witnesses and completing the investigation submitted charge sheet (Ex. A28) against accused/appellant Chandrashekhar Mishra, his mother Smt. Sulochna, brother Satyarayan and Smt. Manju Devi (wife of Satyanarayan) for their trial in respect of charge of offences punishable under section 498A, 304B, 120B IPC, and one punishable under section ¾ Dowry Prohibition Act, 1961. 4. The Chief Judicial Magistrate, Uttarkashi, on receipt of the charge sheet, and after giving necessary copies to the accused as required under section 207 Cr.P.C., committed the case to the court of sessions for their trial. On 20.08.2008, Sessions Judge, Uttarkashi, after hearing the parties, framed charge of offences punishable under section 498A , 304B read with section 120B IPC, and under section ¾ Dowry Prohibition Act, 1961, against all the four accused namely Chandrashekhar Mishra, his brother Satyanarayan, his mother Sulochna, and Sister in law Manju. All of them pleaded not guilty, and claimed to be tried. On this, prosecution got examined P.W.1 Dr. S.K. Verma (one of the members of team who conducted post-mortem examination), P.W. 2 Mohan Lal Joshi (informant 6 and father of the deceased), P.W.3 Greesh Chandra Joshi (brother of the deceased), P.W.4 Dr. P.S. Pokhariyal (who attended Sangeeta {deceased} before her death in District Hospital Uttarkashi), P.W.5 Head Constable Keshav Nand (who prepared check report and FIR), P.W.6 Smt. Saraswati (mother of the deceased), P.W.7 Jay Dev (scribed of stamp paper), P.W.8 Nagendra Dutt Advocate ( who gave notice on behalf of the deceased for maintenance), P.W.9 Pradeep Bisht, Station Officer (Arresting Officer who was recalled and examined again as P.W.13), P.W. 10 S.I. Rajendra Singh Gaur (Who prepared inquest report), P.W.11 Pyar Singh (also witness of inquest report) and P.W.12 Smt. Vijay Laxmi (Aunt of the deceased). Oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which they admitted that Sangeeta (deceased) was wife of Chandrashekhar (accused/appellant). However, regarding rest of the evidence they pleaded that same is false. No evidence in defence was adduced. The trial court, after hearing the parties found that no charge was proved beyond reasonable doubt against accused Satyanarayan, Smt. Sulochna and Smt. Manju. They were acquitted of the charge but accused Chandrashekhar (husband) was found 7 guilty of charge of offences punishable under section 498A, 304B IPC, and one punishable under section Dowry Prohibition Act, 1961. After hearing the convict on sentence, the trial court sentenced him to imprisonment for life, 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 of ` 1,000/- under section 498A IPC, and rigorous imprisonment for a period of five years, and directed to pay fine of ` 15,000/- under section ¾ Dowry Prohibition Act, 1961. Aggrieved by said judgment this appeal was filed by the appellant. 5. Before further discussion we think it just and proper to mention about the medical evidence on record. P.W.4 Dr. P.S. Pokhriyal of District Hospital Uttarkashi has stated that on 28.04.2008, Sangeeta was admitted for treatment in the hospital. He has further stated that condition of the patient was serious. The witness has further stated that at about 8:45 p.m, she died. P.W.4 Dr. P.S. Pokhriyal has further told that information was sent to the police. It is also stated by this witness that there were symptoms of poisoning at the time when Sangeeta was admitted in the hospital. 8 6. P.W.1 Dr. S.K. Verma, who was one of the members of team of Doctors which conducted post mortem examination has stated that on 29.04.2008, at about 3:30 p.m., he alongwith Dr. B.S. Bisht, conducted autopsy on the dead body of Sangeeta. He has stated that frothy blood was coming out from the mouth of the deceased. There were no external injuries. This medical officer has stated that on completion of post-mortem examination cause of death of the deceased found as suspected poisoning, and viscera was preserved for chemical analysis. He proved post mortem examination report (Ex. A1) on the record. 7. The report (Ex. A27) received from the Forensic Laboratory, Agra, after chemical analysis, shows that all the seven contents of the viscera namely stomach, piece of small intestine, piece of large intestine, piece of lever, kidney, spleen and piece of lungs contained organo phosphorus insecticide poison. This report affirms the statement of the two medical officers examined on behalf of the prosecution that deceased had died of poisoning. However, this Court thinks it just and proper to clarify that half empty container of thiodine recovered from the house of accused did 9 not contain organo phosphorus insecticide rather it contained endo sulphate insecticide poison as mentioned in the chemical examiner's report (Ex. A27). As such, though the recovery of bottle of insecticide is proved by P.W. 9 Pradeep Bisht, but it is of no help for the purposes of this case. However, even if, said recovery is not related with death of Sangeeta it is established on the record that Sangeeta Devi died unnatural death after consuming insecticide (namely organo phosphorus insecticide). 8. Section 304B IPC provides that 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''. 9. P.W.2 Mohan Lal Joshi, father of the deceased has stated that Sangeeta got married to Chandrashekhar (appellant) on 04.12.2004. The said fact has been corroborated by P.W.3 Gireesh 10 Chandra Joshi brother of the deceased, and P.W.6 Smt. Saraswati mother of the deceased. We have already discussed above that Sangeeta died due to poisoning on 28.04.2008. As such, it is proved on the record that Sangeeta died unnatural death within seven years of her marriage. 10. As to the demand of dowry and harassment of the deceased for non fulfillment of demand of dowry, P.W.2 Mohan Lal Joshi, father of the deceased has stated that his daughter Sangeeta was subjected to cruelty for non fulfillment of demand of dowry. He has stated that whenever his daughter Sangeeta used to come her parental house, she complained about the demand of rupees one lac by her husband and in laws, and treatment she suffered at their hand. Similar statement has been made by P.W. 3 Gireesh Chandra Joshi brother of the deceased , P.W. 6 Smt. Saraswati, mother of the deceased, and P.W. 12 Smt. Vijay Laxmi (aunt of the deceased) 11. Section 113B 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 11 woman has been subjected by such person to cruelty the court shall presume that such person had caused the dowry death. From the evidence of P.W.2 Mohan Lal Joshi, P.W. 3 Gireesh Chandra Joshi, P.W.6 Smt. Saraswati and P.W. 12 Smt. Vijay Luxmi as discussed above, it is sufficiently shown that the deceased was subjected to cruelty for non fulfillment of demand of dowry. The above mentioned witnesses have stated that Sangeeta was beaten, and made to leave her husband's house after about six months of her marriage, and she had to remain in her parental house for about one and a half years. 12. Document (Ex. A2) is proved by P.W.2 Mohan Lal Joshi, father of the deceased and P.W.7 Jay Dev who scribed it. This document discloses that on 23.09.2007, accused/appellant Chandrashekhar gave in writing to the father of the deceased that in future he would not make any demand of dowry, and would not treat her with cruelty. On this written undertaking, Sangeeta was allowed to go with her husband on 23.09.2007. This fact gets corroboration from the statement of P.W. 3 Gireesh Chandra Joshi and P.W. 6 Smt. Saraswati. 12 13. Shri Vinod Sharma, learned counsel for the appellant argued that there is no evidence on record that soon before her death Sangeeta was subjected to cruelty. In this connection, it is pointed out that if any harassment is alleged, it relates to the year 2006, as such it is pleaded that ingredients of the offence punishable under section 304B IPC are not made out. It is also contended that deceased appears to have consumed poison as she was a issue less woman. We are unable to agree with the learned counsel for the appellant for the reason that out of the three years period of marriage, for one and a half years she remained ousted from her husband's house, and lived in her parental house. Apart from this, as far as the question of “soon before her death” is concerned P.W. 3 Gireesh Chandra Joshi, brother of the deceased has narrated in the first para of his statement that his sister Sangeeta was subjected to cruelty regarding which she used to complain before she was ousted by her husband. But the second para of the statement of this witness relates to the incident of 23.09.2007, when accused gave written undertaking not to make demand of dowry, and not to harass in said para (second para) it is narrated that (even after the undertaking was given) the treatment of harassment was suffered by 13 his sister at the hands of her husband. As such it cannot be said that prosecution has not established that after 23.09.2008, Sangeeta was not subjected to cruelty. 14. For the reasons as discussed above, having reappreciated the evidence on record, we find that prosecution has successfully proved charge of offence punishable under section 304B, 498A IPC, and one punishable under section ¾ Dowry Prohibition Act, 1961. However, we agree with the learned counsel for the appellant that sentence awarded by the trial court is harsh as maximum sentence of imprisonment of life has been awarded under section 304B IPC. We are of the view that since it was the husband (appellant) who had taken his wife for treatment to District Hospital, rigorous imprisonment for a period of seven years under section 304B IPC, rigorous imprisonment for a period of two years under section 498A IPC, and rigorous imprisonment for a period of five years under section ¾ Dowry Prohibition Act, 1961, would have met the ends of justice. 15. Therefore, this appeal is disposed of affirming the conviction of the accused/appellant 14 Chandrashekhar Mishra under section 304B, 498A IPC, and under section ¾ Dowry Prohibition Act, 1961. However, the appeal is allowed on the point of sentence. The impugned judgment and order dated 30.04.2010, passed by Sessions Judge, Uttarkashi, in Sessions Trial No. 13 of 2008, is affirmed only so far as the conviction is recorded by it against appellant but the same is set aside so far as it relates to the sentence recorded by the trial court under section 304B, 498A IPC and ¾ Dowry Prohibition Act, 1961. Instead, the appellant is sentenced to rigorous imprisonment for a period of seven years under section 304B IPC, rigorous imprisonment for a period of two years under section 498A IPC, and rigorous imprisonment for a period of five years under section ¾ Dowry Prohibition Act, 1961. All the sentences shall run concurrently. Appellant is in jail. Period spent during trial and during pendency of this appeal shall be adjusted from the period of sentence awarded by this Court. Let a copy of this judgment be sent to the Superintendent of Jail concerned. Lower court record be sent back. (Servesh Kumar Gupta, J.) (Prafulla C. Pant, J.) 17.06.2011 Parul *Approved for reporting 15