IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1533/2001 (Old No. 2069/1999) Madhwanand and another … Appellants. Versus State … Respondent. Mr. Pankaj Purohit, learned counsel for the appellants. Mr. S.S. Adhikari, learned A.G.A. for the State. Coram: Hon’ble B.C. Kandpal, J. Hon’ble Nirmal Yadav, J. [Per: Hon’ble B.C. Kandpal, J.] This criminal appeal, arises out against the judgment and order dated 19-08-1999, passed by Special Judge(CBI), Nainital, in Sessions Trial No. 273/1992, State vs. Madhwanand and another, whereby accused Madhwanand was convicted and sentenced to undergo Life Imprisonment U/S 304-B I.P.C.; two years R.I. and a fine of Rs. 1,000/- U/S 498-A I.P.C. and one year’s R.I. and a fine of Rs. 1000/- U/S 201 I.P.C. and accused Smt. Rewati Devi was convicted and sentenced to undergo R.I. for 10 years U/S 304-B I.P.C.; one year’s R.I. and a fine of Rs. 1,000/- U/S 498-A I.P.C. and one year’s R.I. and a fine of Rs. 1,000/- U/S 201 I.P.C. In default of payment of fine both the accused were to undergo S.I. for 15 days. All the sentences were to run concurrently. 2- The prosecution case, in brief, is that on 3-8-1992 Ghananand and Naresh Chandra sons of 2 Ratanmani R/o Village Maluwatal, Tehsil and District Nainital filed a written report before District Magistrate, Nainital with the allegations that their sister Smt. Munni Devi was married with accused Madhwanand about one year ago. Accused Madhwanand and his mother accused Smt. Munni Devi started ill-treating Smt. Munni Devi soon after the marriage in lieu of their unlawful demand of dowry. On 31-7-1992 the accused persons murdered Smt. Munni Devi and cremated her dead body without informing them. They got information of the death of Smt. Munni Devi on 2-8-1992, hence the complaint was filed for taking legal action against the accused persons. The above written report, Ext. Ka.1 was sent to Revenue Police for registering the case and investigation. On the basis of written report, Naib Tehsildar Nainital prepared chick F.I.R. Ext. Ka.2 and the same day at about 3.30 P.M. registered a case at crime No. 1/1992, U/Ss 498-A, 304-B and 201 I.P.C. against the accused persons, copy of GD of registration of the case is, Ka.3. The I.O. visited the place of occurrence and prepared site plan, Ext. Ka.4. He also prepared the site plan, Ext. Ka.5 of the place where the dead body of the deceased Munni Devi was cremated by the accused persons. The I.O. also recorded statements of the witnesses and after completion of investigation submitted charge sheet, Ext. Ka.6 against the accused persons. 3- The C.J.M. Nainital, vide his order dated 17-11-1992, committed the case to the court of Sessions for trial. 3 4- The Ist Additional District & Sessions Judge, Nainital framed charges U/Ss 498-A, 304-B, 201 I.P.C. and in the alternative U/S 304/34 I.P.C. against the accused persons. The accused persons denied the charges and claimed to be tried. 5- The prosecution, in order to prove its case, produced P.W.1, Ghananand, P.W.2, Naresh Chandra, P.W.3, Harish Chandra, P.W.4, Smt. Dhanuli Devi and P.W.5, Sri Tej Singh Gangola, Naib Tehsildar, I.O. of the case. 6- The accused persons in their statements U/S 313 Cr.P.C. denied the prosecution case and alleged that the deceased Smt. Munni Devi had died her natural death. They further alleged that at the time of cremation of the dead body of Smt. Munni Devi, village Pradhan, other villagers and brother and brother-in-law of the deceased were present. They further alleged that they have been falsely implicated in the case. The accused persons examined Chinta Ram as D.W.1 in their defence. This witness has been produced to state that the deceased had died to her natural death and at the time of death of Munni Devi, village Pradhan, and her brother-in-law Liladhar and her brother Trilochan were also present there. 7- Thereafter C.W.1, Liladhar and C.W.2 Smt. Dewali Devi wife of Liladhar have been examined before the court, who have stated that information of the death of the deceased was not 4 given by the accused persons and Liladhar, had not gone at the house of the accused but he had gone straight to the place of cremation. 8- The learned Sessions Judge, after hearing learned counsel for the parties and perusing the entire evidence on record, found both the accused persons Madhwanand and Smt. Rewati Devi, guilty of offences U/Ss 498-A, 304-B and 201 I.P.C. and accused Madhwanand was sentenced to undergo Life Imprisonment U/S 304-B I.P.C.; two years R.I. and a fine of Rs. 1,000/- U/S 498-A I.P.C. and one year’s R.I. and a fine of Rs. 1000/- U/S 201 I.P.C. and accused Smt. Rewati Devi was sentenced to undergo R.I. for 10 years U/S 304-B I.P.C.; one year’s R.I. and a fine of Rs. 1,000/- U/S 498-A I.P.C. and one year’s R.I. and a fine of Rs. 1,000/- U/S 201 I.P.C. In default of payment of fine both the accused were to undergo S.I. for 15 days. All the sentences were to run concurrently. 9- Feeling aggrieved, the accused/appellants have preferred this appeal. 10- We have heard Sri Pankaj Purohit, learned counsel for the appellants and Sri S.S. Adhikari, learned A.G.A. on behalf of the State and perused the entire material available on record. 11- Learned counsel for the appellants has submitted before us that the prosecution has not proved that soon before her death the victim was subjected to cruelty or harassment and her death 5 has occurred otherwise than in normal circumstances, therefore, the appellants cannot be convicted U/S 304-B I.P.C. In support of his argument learned counsel has cited before us the cases of State of Rajasthan vs. Teg Bahadur and others, reported in 2005 Supreme Court Cases (Cri) 218 and Hira Lal and others vs. State (Govt. of NCT), Delhi, reported in (2003)8 Supreme Court Cases 80. 12- We have gone through the above cited rulings and we are of the view that the facts of the cases supra are totally different to the case in hand and do not apply here. In the cited cases the Hon’ble Apex Court, on facts held that one of the essential ingredients of Section 304-B I.P.C. viz. demand of dowry soon before the occurrence could not be established by prosecution, hence conviction U/S 304-B I.P.C. is not sustainable. In the case before us, the prosecution has adduced reliable and cogent evidence to establish the fact that the victim was subjected to cruelty by the accused persons soon before her death in lieu of their unlawful demand of dowry. 13- In order to prove the unlawful demand of dowry made by the accused/appellants, the prosecution has examined P.W.1, Ghananand, P.W.2, Naresh Chandra and P.W.3, Harish Chandra. All these persons are brothers of deceased Munni Devi. They have deposed that within one year of marriage Smt. Munni Devi was killed by her husband Madhwanand and her mother-in-law Smt. Rewati Devi. These accused persons started ill- 6 treating Munni Devi soon after her marriage to fulfil their unlawful demand of dowry. They further deposed that on the occasion of Harela Festival, Munni Devi had come to her parents house and then she had complained that accused persons have made a dowry demand of Rs. 5,000/- from her brothers. At this brothers of the deceased carried the deceased to her inlaw’s house and told the accused persons that they would give them the demanded money in installments as they were not in a position to pay the amount at one time. All these prosecution witnesses have deposed that at the time of marriage demand of dowry was not agreed between the parties, but after the marriage accused persons subjected the deceased with cruelty in lieu of their unlawful demand of dowry and when they did not pay money to the accused, they killed Smt. Munni Devi on 31.7.1992 at their house and cremated her dead body without informing them. The witnesses further deposed that when they got information of the death of their sister from some one else then on 2.8.1992 they went at the house of accused. The accused did not give satisfactory reply pertaining to the death of the deceased, therefore, on 3.8.1992 the first information report was lodged against the accused persons. We do not find any reason to disbelieve the testimony of these witnesses. Their testimony is reasonable and trustworthy. Therefore, from the depositions of P.W.1, Ghananand, P.W.2, Naresh Chandra and P.W.3, Harish Chandra it is established that the accused persons Madhwanand, husband and Smt. Rewati Devi, mother-in-law of 7 the deceased subjected the deceased Munni Devi with cruelty soon before her death, in lieu of their unlawful demand of dowry of Rs. 5,000/-, and when the brothers of the deceased did not pay the sum to the accused persons due to their poverty, the accused persons killed Smt. Munni Devi. 14- Learned counsel for the appellants also submitted that the other essential ingredients of Section 304-B I.P.C. have also not been proved in the instant case, hence presumption of law U/S 113-B I.P.C. can not drawn pertaining to dowry death. 15- The above submission of learned defence counsel is baseless. The essentials required to be proved for raising the presumption that the accused caused the dowry death are that- (i) the question before the court must be whether the accused has committed the dowry death of the woman, (ii) the woman was subjected to cruelty or harassment by her husband or his relatives, (iii) such cruelty or harassment was for or in connection with any demand of dowry, and, (iv) such cruelty or harassment was soon before her death. 16- In the instant case the question before this court for consideration is pertaining to dowry 8 death of Smt. Munni Devi. From the evidence of P.W.1, Ghananand, P.W.2 Naresh Chandra and P.W.3, Harish Chandra, it is clearly established that the accused persons subjected the deceased with cruelty and they were making dowry demand of Rs.5000/- and when the brothers of the deceased did not pay that sum in dowry, then the accused persons, who are her husband and mother-in-law, killed the deceased in their house. It is also fully established that the cruelty was soon before her death. Smt. Munni Devi had come to her parents house on Harela Festival where she had complained of her ill-treatment by accused persons for their unlawful demand of dowry, to her brothers and when her brother carried her to her inlaw’s house thereafter she was killed at her inlaw’s house. 17- The circumstances of the case also fully support the prosecution case. The circumstances brought on record by prosecution are that the death of the deceased was occurred at the house of the accused persons; the deceased was not suffering from any ailment before her death and on the day of her death she had gone to jungle and after 1- 2 hours of her return from jungle, she was done to death. Although P.W.4, Smt. Dhanuli Devi, real sister of accused Madhwanand, did not support the prosecution case and she was turned hostile, but in her cross-examination this witness has admitted this fact that on the day of occurrence Smt. Munni Devi had gone to jungle and after 1-2 hours of her return from jungle she has died in the house. In her cross-examination this witness showed her 9 ignorance about the ailment of the deceased before the occurrence. The accused have tried to create a defence that the deceased was suffering from stomach-ache and she died her natural death. To assert this fact Chinta Ram D.W.1 has been produced. The statement of D.W.1, Chinta Ram appears to be untrue in view of the fact that the deceased was hale and hearty and she was not suffering from any ailment and 1-2 hours before her death she had returned from jungle. If really Smt. Munni Devi was suffering from stomachache at the time of her death and the accused/appellants were pleasant with her then they could have certainly called the doctor to treat her and save her life. The story of death of deceased by some ailment is further falsified by the statement of P.W.4, Smt. Dhanuli Devi, who has deposed that on the day of occurrence doctor was not called at their house. Therefore, this fact has been established that the deceased was not suffering from any ailment and her death has occurred otherwise than in normal circumstances. 18- Another important circumstance which goes against the accused/appellants is that no autopsy was conducted on the dead body of the deceased and her body was cremated in a hurry. The prosecution witnesses have deposed that accused persons did not send any information to them pertaining to the death of Smt. Munni Devi and when they got information of the death of the deceased from some village people then they went to the house of the accused persons and till then the 10 body was cremated. Accused persons also did not give satisfactory reply pertaining to the death of the deceased. Had Smt. Munni Devi died to her natural death, the accused could have been ready for conducting postmortem on her dead body and they could not have cremated her dead body in a hurry without informing her brothers. Therefore, the guilty conscience of the accused persons clearly shows that the deceased did not die to her natural death. 19- Thus, from the evidence available on record, we find that the deceased was subjected to cruelty by the accused persons soon before her death in lieu of their unlawful dowry demand of Rs. 5,000/- and the learned trial Judge was fully justified in raising presumption that the accused caused the dowry death. Therefore, offences U/Ss 498-A and 304-B I.P.C. are fully established against both the accused/appellants. 20- The prosecution has also been successful in establishing the guilt of the accused persons U/S 201 I.P.C. As has been stated earlier no postmortem of the dead body was conducted and the dead body was cremated in a hurry without informing the brothers of the deceased, therefore, the accused persons are guilty of offence U/S 201 I.P.C. 21- For the reasons recorded above, we find no force in this appeal and the same is liable to be dismissed. 11 22- The appeal is dismissed. The conviction and sentences awarded by the trial court against accused/appellants U/Ss 498-A, 304-B and 201 I.P.C are upheld. 23- The accused/appellants are on bail. Their bail bonds are cancelled and sureties discharged. They be taken into custody forthwith so as to serve out the sentence awarded against them by the trial court. 24- Let the record be transmitted to the trial court forthwith for compliance. (Nirmal Yadav, J.) (B.C. Kandpal, J.) Dated: June 03, 2010. ISB