IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 428 of 2007 Ishwar @ Guddu S/o Shri Leela Nand Bamola R/o Village Kargi, P.S. Patel Nagar, District Dehradun. ...…………. Appellant Versus State of Uttarakhand. ...…………. Respondent Mr. S.S. Bhandari, Advocate, present for the appellant. Mr. B.S. Parihar, Brief Holder, present for respondent State Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 08.10.2007, passed by Addl. Sessions Judge / First F.T.C., Dehradun, in Sessions trial No. 43 of 2006, whereby appellant Ishwar @ Guddu (husband of the deceased) has been convicted under Section 304-B of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.), and one punishable under Section 4 of the Dowry Prohibition Act, 1961, and sentenced to undergo 2 rigorous imprisonment for a period of seven years under Section 304-B of I.P.C., and rigorous imprisonment for a period of one year, and further directed to pay fine of Rs. 5,000/- under Section 4 of the Dowry Prohibition Act, 1961. 2) Heard learned counsel for the parties and perused the lower court record. 3) Prosecution story, in brief, is that accused / appellant Ishwar @ Guddu got married to Pooja (deceased) on 28.11.2005, in Dehradun. P.W. 2 Rameshwar Prasad Kukreti (complainant and uncle of the deceased) lodged first information report (Ext. A – 2) on 17.12.2005 (within 20 days of marriage) that his niece Pooja, who got married to accused / appellant Ishwar @ Guddu, has died unnatural death. In the first information report, which was registered as Crime No. 255 of 2005, relating to offences punishable under Section 498-A, 304-B of I.P.C. against accused / appellant Ishwar @ Guddu, his mother Kaushalya and sister-in-law (BHABHI) Saroj, it is alleged that the three demanded dowry and subjected the deceased to cruelty for non-fulfillment of demand of dowry. It is specifically mentioned in the first information report that the accused demanded a car and a sum of Rs. 4,00,000/- in lieu thereof, as dowry. It is also alleged in the first information report that in the intervening night of 16 / 17th of December 2005, Pooja (deceased) gave a 3 phone call to her parents that they should immediately come and take her back. There wee no means to go in the night, as such, the parents could go only next day morning. By then, the dead body of Pooja was found lying at some distance from the house of her husband hanging from a tree. The investigation appears to have been taken up by Dy. Superintendent of Police Thakur Singh Rawat (P.W. 16). The police took the dead body of the deceased in their possession and prepared inquest report (Ext A- 3), and the body was sent for postmortem examination in a sealed cover. Dr. Harish Singh Basera (P.W. 1) and Dr. L.C. Punetha conducted the postmortem examination on the very day i.e. 17.12.2005, at 04:00 P.M. The team of doctors found following ante mortem injuries on the dead body. The same is being reproduced below: Ligature mark in and around the neck below chin and above hyoid, oblique in nature, 20 cm X 1 cm in length netted parchment like with reddish margin. On internal examination, neck was found lengthened. The Medical Officers opined that cause of death was asphyxia secondary to hanging and ligature. The Investigation Officer, after interrogating the witnesses and completing the investigation, filed charge sheet (Ext. A –13) against accused / appellant Ishwar @ Guddu, his mother Kaushalya and his sister-in-law 4 (BHABHI) Saroj, for their trial in respect of offences punishable under Section 498-A and 304-B of I.P.C. 4) The Chief Judicial 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. On 11.05.2006, the trial court after hearing the parties, framed charge of offences punishable under Section 304-B / 34 of I.P.C., Section 498-A / 34 of I.P.C., and one relating to offence punishable under Section 3/4 of the Dowry Prohibition Act, 1961, against the accused / appellant Ishwar @ Guddu, his mother Kaushalya and sister-in-law Saroj. All the three accused pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Dr. Harish Singh Basera (who conducted the postmortem examination); P.W. 2 Rameshwar Prasad Kukreti (complainant and uncle of the deceased); P.W. 3 Ramesh Kukreti (father of the deceased); P.W. 4 Indu Devi (mother of the deceased); P.W. 5 Deepak Kukreti (brother of the deceased); P.W. 6 Mohan Kothiyal, P.W. 7 Mahesha Nand Baloni; P.W. 8 Constable Anita Rawat; P.W. 9 Rinki Kukreti (sister-in-law / BHABHI of the deceased); P.W. 10 Prakash Chand Kukreti (cousin of the deceased); P.W. 11 Prem Vallabh Dhulia (the priest who got solemnized the marriage); P.W. 12 Constable Balbir Singh; P.W. 13 Bhagat Ram Dhyani; P.W. 14 Dr. B.S. Tolia; P.W. 15 Ganesh Prasad 5 Baunthiyal and P.W. 16 Dy. S.P. Thakur Singh Rawat (Investigating Officer). The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which they admitted that Pooja (deceased) got married on 28.11.2005 with accused / appellant Ishwar @ Guddu. However, they denied having made demand of dowry or harassment of the deceased due to non-fulfillment of demand of dowry. Accused / appellant Ishwar @ Guddu at the end of his statement under Section 313 of Cr.P.C., stated that a phone call came from Delhi on the day of incident at night and to attend the same the appellant went to his sister-in-law’s room. Thereafter, Pooja (deceased) came there, and started quarreling with the appellant as to why he went in the room of his sister-in-law at that odd hour in the night. He has also stated that Pooja left the house immediately. The appellant further states in his replies under Section 313 of Cr.P.C. that he thought Pooja might have gone to her parental house, and did not bother to know about her whereabouts. It was only in the morning he came to know about the death of his wife. However, no evidence was got adduced on behalf of the accused. The trial court, after hearing the parties on sentence, found accused / appellant Ishwar @ Guddu guilty of the charge of offence leveled against him. However, the charge was not found proved against Kaushalya (mother of the accused) and Saroj (sister-in- law of the accused) and they were acquitted of the 6 charge framed against them. Hence, this appeal by the convict Ishwar @ Guddu (the husband). 5) Before further discussion, it is pertinent to mention here the provisions contained in Section 304-B of I.P.C., which reads as under: “304B. Dowry death. –(1) 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”, and such husband or relative shall be deemed to have caused her death. Explanation. –For the purpose of this sub- section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term with shall not be less than seven years but which may extend to imprisonment for life.” It is also pertinent to mention here the relevant provision contained in Section 113B of the Indian Evidence Act, 1972, which reads as under: 7 “113-B. Presumption as to dowry death. –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 the dowry death. Explanation. –For the purposes of this section, “dowry death”, shall have the same meaning as in section 304-B of the Indian Penal Code (45 of 1860).” 6) From the statement of P.W. 1 Dr. Harish Singh Basera, who conducted postmortem examination on the dead body of the deceased read with a autopsy report (Ext. A –1) it is proved on the record that Pooja (deceased), wife of the appellant, died unnatural death. The cause of death according to the Medical Officers was asphyxia secondary to hanging and ligature. I have already mentioned above that the team of two Medical Officers, who conducted the postmortem examination, found ligature mark around the neck of the deceased. 7) As far as the death within seven years of marriage is concerned, it is admitted fact on the record that Pooja got married to appellant on 28.11.2005, and died in the night of 16 / 17th of December 2005 i.e. within 20 days of her marriage. 8 8) Now the prosecution has to show whether the deceased was subjected to cruelty or harassment by her husband (appellant), who is convicted by the trial court. To ‘show’ that the deceased was subjected to cruelty, P.W. 2 Rameshwar Prasad Kukreti (uncle of the deceased), P.W. 3 Ramesh Kukreti (father of the deceased), P.W. 4 Indu Devi (mother of the deceased), P.W. 5 Deepak Kukreti (brother of the deceased), P.W. 6 Mohan Kothiyal (a relative of father of the deceased), P.W. 7 Mahesha Nand Baloni (a HALWAI / Sweet maker), P.W. 9 Rinki Kukreti (sister-in-law / BHABHI of the deceased), P.W. 10 Prakash Chand Kukreti (cousin of the deceased), P.W. 11 Prem Vallabh Dhulia (priest who got the marriage solemnized) have stated on oath that a demand of dowry of Rs. 4,00,000/- or a car was made from the side of the appellant on the day of marriage itself. P.W. 2 Rameshwar Prasad Kukreti has further stated that in the intervening night of 16 / 17th of December 2005, at about 11:00 P.M., Pooja rang him and told him to take her from her in-laws house. This witness has further stated that earlier Pooja had already told that she was being subjected to cruelty for non- fulfillment of demand of dowry. Same fact is corroborated by P.W. 3 Ramesh Kukreti, father of the deceased, that though traditional items of dowry were given in the marriage, but from the side of the accused demand of dowry of Rs. 4,00,000/- or a new car was made regarding which this witness says that he told the in-laws of the deceased that after he gets arrears of his 9 pension, and able to sell his own vehicle Tata Sumo, he would arrange either a car or make payment of Rs. 4,00,000/-. P.W. 4 Indu Devi, mother of the deceased, has also corroborated the fact relating to demand of dowry and harassment. She has further stated that two days after the marriage on 30th of November 2005, Pooja came all alone for ‘KATHA’ (a worshipping done to thank the God after the marriage), and her husband did not accompany her. She has also corroborated the fact that the deceased told her on phone of 16.12.2005 that she was being subjected to harassment due to non-fulfillment of demand of dowry. P.W. 4 Indu Devi has further stated that when on 17.12.2005, she along with her husband went to the in- laws house of their daughter (deceased), the appellant and in-laws could not tell whereabouts of Pooja. Later, on search, her dead body was found hanging at some distance from a tree. P.W. 5 Deepak Kukreti, brother of the deceased, has also corroborated the statement of his father Ramesh Kukreti that when the demand of dowry was made his father told the appellant and his relatives that the money would be arranged after selling the car owned by his father. P.W. 6 Mohan Kothiyal, a relative of the father of the deceased, has also corroborated the fact that at the time of marriage itself the appellant and his relatives created scene by making a sudden demand of Rs. 4,00,000/- or a new car. P.W. 7 Mahesha Nand Baloni (HALWAI / Sweet maker) who was engaged on 28.11.2005, for preparing sweets by Ramesh Kukreti 10 (father of the deceased) has also corroborated the fact that on the day of marriage a demand of dowry was made. He further states that he does not know what happened thereafter. P.W. 9 Rinki Kukreti, wife of brother of the deceased, also corroborates the statement of Ramesh Kukreti, her father-in-law, that he promised the in-laws of the deceased that after selling his own car he would arrange either Rs. 4,00,000/- or a new car. P.W. 10 Prakash Chand Kukreti, cousin of the deceased, has also corroborated the fact relating to demand of dowry by appellant Ishwar @ Guddu for a car or Rs. 4,00,000/- in lieu thereof, was made at the time of ‘Garlanding Ceremony’ during the marriage. P.W. 11 Prem Vallabh Dhulia, the priest, has also corroborated the above fact. He has also corroborated the fact that father of the girl told the appellant and his relatives that he (father of the deceased) was not in a position to fulfill the demand immediately, and promised that after selling his own car and getting arrears of pension, he would make the arrangement. From the evidence of all the above witnesses, it is not only ‘shown’ but also proved on the record that the deceased was subjected to cruelty and harassed for non- fulfillment of demand of dowry by the appellant before her death. I have already discussed that it is proved on the record that deceased died unnatural death within 20 days of her marriage. In the circumstances, the trial court has rightly arrived to the conclusion that in view of provision contained in Section 113-B of the Indian 11 Evidence Act, 1872, the offence of dowry death is clearly established and proved on the record against the accused / appellant. 9) Having gone through the entire evidence on record and after considering the submissions of learned counsel for the appellant and the State counsel, this Court does not find any error or law committed by the trial court in holding that accused / appellant Ishwar @ Guddu is guilty of charge of offence punishable under Section 304-B of I.P.C., and one punishable under Section 4 of the Dowry Prohibition Act, 1961. Also, this Court finds no illegality in awarding sentence of rigorous imprisonment for a period of seven years under Section 304-B of I.P.C., which is the minimum sentence required to be awarded, and rigorous imprisonment for a period of one year and fine of Rs. 5,000/- directed to be paid under Section 4 of the Dowry Prohibition Act, 1961. The grounds taken in the appeal that the finding of the trial court is against the evidence and material on record is not correct. Rather, the findings recorded by the trial court are based on the clinching evidence on record. The ground taken in the appeal that the findings are based on conjunctures and surmises is also not found true. The other grounds raised in the appeal are also found without any force. 12 10) For the reasons as discussed above, this appeal is liable to be dismissed. The appeal is dismissed. The lower court record be sent back. A copy of this judgment be sent to the Superintendent of jail where the accused / appellant is serving out the sentence. (Prafulla C. Pant, J.) [[ Dt. July 15, 2010. H. Negi