HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No.247 of 2002 Bansi Lal, S/o Shri Durga Ram, Resident of Village Agar Tana Chami Patwari Circle Panuva naula, District Almora. ……Appellant Versus State ……Respondent Mr. Vinod Sharma, Advocate for the appellant. Mr. Amit Bhatt, Addl. Government Advocate for the State. With Criminal Appeal No. 236 of 2002 1. Smt. Sita Devi, W/o Kailash Ram. 2. Smt. Haruli Devi, W/o Shri Durga Ram. 3. Durga Ram, S/o Sadi Ram. All residents of Village Agar Tana Chami Patwari Circle Panuva naula, District Almora. ……Appellants Versus State ……Respondent Mr. Vinod Sharma, Advocate for the appellants. Mr. Amit Bhatt, Addl. Government Advocate for the State. JUDGMENT Hon’ble J. C. S. Rawat, J. This is a criminal appeal preferred against the judgment and order dated 20/9/2002 passed by the learned Addl. Sessions Judge (F.T.C), Almora in ST No. 16/2001, whereby the learned Addl. Sessions Judge has convicted the accused-appellants for the offence punishable under Section 304-B IPC and sentenced them to undergo rigorous imprisonment for the period of seven years and fine of rupees one thousand only. The learned Addl. Sessions Judge further directed that in default of payment of fine, the appellants would undergo rigorous imprisonment for another period of three months. 2. The case of the prosecution, in brief, is that the complainant-Krishna Ram who is the uncle of the deceased Hema, lodged a report to the Nayab Tahsildar, Almora on 23-12-2000 at about 1715 hours against the accused- appellants in connection with the death of his niece/the deceased-Hema who got married with the accused-appellant Bansi Lal on 04th June, 2000 was found dead on 22.12.2000 under mysterious circumstances, as her body was found hanging on a tree nearby her matrimonial house. It has been alleged by the complainant-Krishna Ram that the appellants namely, Bansi Lal-the deceased’s husband, Durga Ram-the father-in-law, Haruli Devi-the mother-in-law and Smt. Sita Devi-the sister-in-law/’jaithani’ of the deceased used to commit cruelty upon the deceased in connection with dowry demand. He further alleged that the deceased came thrice to her parental house after her marriage and she complained her mother as well as him that the appellants were demanding a sum of rupees twenty thousand and a colour T.V in connection with dowry. When the demands of the appellants were not fulfilled, they started harassing the deceased. It was also alleged that, when once the deceased came to her parental house, she told her mother and him that if she doesn’t bring the demanded money & a T.V, the appellants would perform second marriage of her husband/the appellant-Bansi Lal. On 22.12.2000, the deceased was found hanging on a tree nearby her matrimonial house and a report about the unnatural death of the deceased was lodged by Durga Ram, the father-in-law of the deceased to the Patwari concerned. The inquest report was made at the spot and postmortem was conducted by the medical officer at Almora. Ganesh Ram-PW1, the father of the deceased who was working at Delhi, received information on 22.12.2000 on telephone that his father is seriously ill and was admitted at Almora, he immediately rushed towards Almora. When he reached at Almora hospital on 23.12.2000, he did not found his father in the hospital and thereafter he went to his home where he was informed by the villagers that his daughter/the deceased has been murdered by her in-laws due to non-fulfillment of dowry demand. As mentioned above, on the report of Krishna Ram-the informant/the uncle of the deceased, the matter was initially investigated by the Nayab Tahsildar and thereafter it was handed over to the regular police. The police after completing the investigation, submitted chargesheet against the accused-appellants under Sections 498-A & 304-B IPC. 3. After submission of the chargesheet, the trial court framed charges against the appellants under Sections 304-B/498-A IPC. The accused- appellants denied the charges levelled against them and claimed trial. 4. In order to prove its case, the prosecution examined Ganesh Ram as PW1 who is the father of the deceased-Hema; Harish Ram as PW2 who is the brother of the deceased’s mother; Smt. Champa Devi as PW3 who is the mother of the deceased; Krishna Ram as PW4 who is the uncle of the deceased; Shivchandra Dwivedi as PW5 who is the Nayab Tahsildar and he has proved the FIR; Dr. Bipin Pant as PW6 who had conducted the autopsy on the dead body of the deceased-Hema & S.I. Tula Ram as PW7 who is the Investigating Officer of the case. 5. The accused-appellants were examined under Section 313 of the Criminal Procedure Code. They denied the averments made in the evidence. They have stated in their statements that they had never demanded any money in connection with dowry from the deceased and they have been falsely implicated in this case. It was further stated by them that the deceased wanted to have some magical effect upon the family members of her husband/appellant-Bansi Lal, as such, she wrote a letter to her grandfather to get a ‘Tabiz’ prepared for the whole family of the matrimonial house and when this fact came to the knowledge of the appellants, the deceased felt ashamed upon herself and due to this she committed suicide. 6. The defence in support of its case examined appellant-Bansi Lal as DW1 who has stated before the court that his father Durga Ram who is also one of the appellants in these appeals has submitted a report to the Patti Patwari in regard to the unnatural death of the deceased. He further alleged that the deceased had written him letters (Ex. Kha-4 & Ex.Kha-5), which are pre-matrimonial communications and he proves the handwriting of the deceased in the said letters. He has also filed the aforesaid letters in his evidence. 7. The learned trial court after appreciation of the evidence found the appellants guilty of the offence, and convicted and sentenced the appellants as mentioned above. 8. I have heard learned counsel for the parties. I have also gone through the evidence and material on record. 9. At the outset, it needs to be mentioned that there is no dispute that the deceased died an unnatural death on 22.12.2000. The prosecution in support of its case examined Dr. Bipin Pant PW6 who conducted the autopsy on the dead body of the deceased on 23.12.2000 at about 1400 hours and prepared the postmortem report Ex. Ka-6. According to the report, there was a ligature mark around the neck on its upper side; no other ante-mortem injury on the person of the deceased; the knot was on the upper side of the neck; and, the second & third bone of the neck was misplaced. The defence has also admitted the unnatural death of the deceased in the statement recorded under Section 313 CrPC. Thus, it is amply established that the death of the deceased occurred on the date and time as stated by the prosecution. 10. In the case in hand, the accused-appellants have been convicted under Section 304-B IPC. It is pertinent to mention that to seek conviction under Section 304-B IPC against a person for the offence of dowry death, the prosecuction is obliged to prove that; (i) the death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances; (ii) such death should have occurred within seven years of her marriage; (iii) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband; (iv) such cruelty or harassment should be for or in connection with the demand of dowry; and (v) to such cruelty or harassment the deceased should have been subjected soon before her death. 11. In the above background, I have to examine; as to whether the prosecution has proved the ingredients of Section 304-B IPC or not; as to whether the appellants are responsibe for the death of the deceased; and whether they are liable for the offence punishable under Section 304-B IPC for which they they have been convicted by the trial court. 12. It is not in dispute that the death of the deceased occurred due to hanging in a branch of tree near her matrimonial house. Thus, the deceased died an unnatural death than under normal circumstances. In this way, ingredient (i) of Section 304-B IPC is amply proved. The marriage of the deceased was solemanized on 04th June, 2000 and she died on 22.12.2000 i.e. within seven months of her marriage. In other words her death occurred within seven years of her marriage and it is amply proved by the prosecution. This fact proves ingredient (ii) of Section 304-B IPC. The prosecution has led the evidence that non-fulfillment of dowry demand by the parents instigated the deceased to commit suicide whereas the defence has taken a plea that the deceased wrote a letter to her grandfather to get a ‘tabiz’, this time for the whole family of her husband/appellant-Bansi Lal (the extract of the letter is reproduced below in Para 16 of this judgment) and the revealation of this fact upon the appellants, led the deceased in a deep stress and shame, consequent thereof, she committed suicide. 13. Now, I have to examine as to whether ingredients (iii), (iv) & (v) of Section 304-B IPC are established by the prosecution evidence or not and as to whether the deceased had been subjected to cruelty or harassment soon before her death by the appellant in connection with dowry demand. The prosecution in support of its case examined Ganesh Ram PW1 who is the father of the deceased and who has stated in his evidence that the marriage of the deceased was solemanized on 04th June, 2000 with the appellant-Bansi Lal. He has stated in his evidence that when her daughter/the deceased came to his house for the second ‘Bidai’, she told him that the appellant Bansi Lal had thrown away the marriage ring under anguish, as he did not like it and, as such, she asked him to give the appellant another ring of his choice. From the aforesaid saying of the deceased, it cannot be concluded that her husband/appellant-Bansi Lal has demanded any ring in place of the aforesaid marriage ring, infact, the deceased herself has asked for another ring for the appellant from her parents and hence, it cannot be termed as dowry demand as the ring was demanded by the deceased herself. He further stated that since he was employed at Delhi, so after her daugher’s marriage he left his house on 11th June, 2000 to Delhi. During his stay at Delhi, he received information in the night of 22.12.2000 at about 10 pm on telephone that his father is seriously ill and is admitted at Almora hospital. On 23.12.2000 at about 10 am, he reached at the Base hospital, Almora but he did not find there anyone from his family. Thereafter, he hired a taxi and went to his home where he was informed by the inhabitants of the village that her daughter/the deceased has been murdered by her in-laws and her body has been taken to Almora for postmortem. He immediately went to Almora where his brother-Krishna Ram PW4, Sunder Ram, Nathu Ram and other villagers met him. Krishna Ram PW4 told him that the in-laws of the deceased used to harass and commit cruelty upon the deceased in connection with dowry demand. Krishna Ram PW4 also told him that the in-laws of the deceased were consistently demanding a sum of rupees twenty thousand and a colour T.V in dowry and the in-laws also used to beat the deceased for non-fulfillment of dowry demand. It is also alleged by Ganesh Ram PW1 that after postmortem examination, when he went to his house, his wife Champa Devi PW3 who is the mother of the deceased also narrated the above story. He has further stated that neither Champa Devi PW3 nor Krishna PW4 or anybody else had informed him at Delhi that the appellants were demanding dowry from them and were also harassing his daughter in matrimonial home due to non-fulfillment of dowry. 14. The prosecution also examined Harish Ram PW2 who is alleged to be brother in relation of the deceased’s mother Champa Devi PW2. This witness has stated in his evidence that during the Deewali festival, when he had gone to the parental house of the deceased, the deceased had also come there to celebrate the Deewali festival and Champa Devi PW3-the mother of the deceased told him that the appellants had demanded a sum of rupees twenty thousand & a T.V in connection with dowry and the deceased was refusing to go to her matrimonial house. Later on, he came to know that the appellant killed the deceased. The evidence of this witness is only hearsay evidence. 15. Champa Devi PW3 is the mother of the deceased and she is the main witness of this case. She has stated in her evidence that the marriage of the deceased took place on 04th June, 2000 with the appellant-Bansi Lal and the deceased died after six months of her marriage due to unnatural death. She further stated in her evidence that whenever the deceased came to her parental house, she always complained that the appellants had committed cruelty upon her for non-fulfillment of demand of dowry. It is also stated that the appellants used to demand rupees twenty thousand and a T.V from the deceased and whenever the deceased came to her parental house, she always refused to go to her matrimonial house as the appellants used to beat her and commit cruelty upon her, but everytime she/the mother of the deceased, somehow, managed to persuade her to go to her matrimonial house. Champa Devi PW3 has further stated in her evidence that when Durga Ram-the father-in-law brought the deceased to her parental house during Deewali Festival, the deceased complained her mother that the appellants used to harass her and commit cruelty upon her in connection with non-fulfillment of dowry demand. It was alleged that Sita Devi- the ‘jaithani’ of the deceased used to threat the deceased that her husband, appellant-Bansi Lal would do whatsoever she would say to him and she would also perform the second marriage of the appellant-Bansi Lal and would bring desired dowry from there. Champa Devi PW3 when enquired Durga Ram-the father-in-law of the deceased in regard to the ill treatment/cruelty committed upon her daughter in the matrimonial house, he told her that such things would have occurred due to the influence of liquor. Champa Devi PW3 also gave a sum of rupees two thousand to her daughter/the deceased in presence of his father-in-law. Champa Devi PW3 has further stated in her evidence that after eight days of Deewali Festival, the deceased again came to her parental house alongwith her husband, appellant-Bansi Lal and she again complained about non-fulfillment of dowry demand. The deceased was pregnant at that time. Again after eight days of the aforesaid visit, the appellant Bansi Lal came alone to the parental house of the deceased and demanded a sum of rupees of ten thousand. At first, Champa Devi PW3 refused to give the said amount but considering that if the money were not given to him, he would harass her daughter in the matrimonial house, as such, she gave him a sum of rupees five thousand. The husband of the deceased/appellant-Bansi Lal also stated to Champa Devi PW3 that this fact should not be disclosed to anybody and Champ Devi PW3 also did not disclose this to anybody. It is not stated anywhere in the evidence of Champa Devi PW3 that the aforesaid demand of rupees ten thousand by the appellant-Bansi Lal was made towards dowry. Champa Devi PW3 has reiterated in her evidence that due to non- fulfillment of dowry demand, her daughter-the deceased was subjected to cruelty and eventually, she was instigated to commit suicide. 16. Krishna Ram PW4-the uncle of the deceased has stated in his evidence that when the deceased came to her parental house during the festival of Deewali, she told him that her in-laws used to ill treat & harass her and also demanded a sum of rupees twenty thousand and a T.V in dowry. It is further alleged that; these demands were being made by the appellants; they used to give threats to the deceased to kill her, if she would not bring Rs.20,000/- and a T.V.; and they would also solemanize second marriage of her husband. Krishna Ram PW4 has stated that he saw the body of her niece-the deceased in the postmortem room and thereafter, he lodged a report to the revenue police on 23.12.2000. 17. After going through the entire evidence, the trial court has found the evidence of Champa Devi PW3 and Krishna Ram PW4 credible and cogent. It was also held by the trial court that; the evidence is not tainted in any point; the prosecution has established that the cruelty were committed upon the deceased soon before her death; and all the five ingredients of Section 304-B IPC indicated above, have been proved beyond reasonable doubt. The trial court also held that due to fulfillment of the above ingredients, it is amply established that presumption of Section 113-B of the Indian Evidence Act would arise in favour of the prosecution. 18. The learned counsel for the appellants drew my attention towards the letter dated 16.7.2000 Ex. Ka-1, which has been written by the brother of the deceased as well as by the deceased herself to their father. A greater portion of the aforesaid letter was written by the brother of the deceased wherein it is alleged that the conditions in the matrimonial house of the deceased is not so well and the remaining portion of the aforesaid letter was written by the deceased alleging therein that her father-in-law used to taunt her. The learned counsel for the appellants contended that in the aforesaid letter, there is no indication with regard to any demand for dowry by the appellants, not even a single word is said in regard to dowry demand, as is being alleged by the prosecution. The learned counsel for the appellants also drew my attention towards another letter, which was written by the deceased to her grandfather wherein she has asked for a ‘tabiz’ and requested simultaneously that this time, let it be prepared for the whole family of her husband. The learned counsel for the appellants contended that this letter, too, did not contain any fact of harassment or dowry demand by the accused-appellants. The learned counsel for the appellants also stressed that; the father of the girl who was examined before the court had not stated anywhere in his evidence that any dowry demand was made to her daughter, the deceased by the appellants; the father of the deceased has also stated in his evidence that he was not informed with regard to the fact that his daughter, the deceased had ever complained her mother- Champa Devi PW3 and Uncle-Krishna Ram PW4 that the appellants were demanding dowry; and above all, there was no ante-mortem injury on the person of the deceased and seeing the position of the knot; dislocation of the bones of the neck; and the ligature mark around the neck on its upper side, shows that it is a suicidal case. The learned counsel for the appellants further contended that the evidence of Harish Ram PW2 is hearsay evidence and it cannot be read into evidence. The learned counsel for the appellant relied upon the following judgments of the Hon’ble Apex Court: (i) Gentela Vijayavardhan Rao Vs. State of Andra Pradesh reported in 1996 SCC (Cri) Page 1290 (ii) Rattan Singh Vs. State of Himachal Pradesh reported in 1997 SCC (Cri) page 525 (iii) Sukhar Vs. State of UP 1999 Volume 9 SCC Page 507 & (iv) Vasa Chandrasekhar Rao Vs. Ponna Satyanarayana, 2000 Volume 6 SCC Page 286. The learned counsel for the appellants further submitted that there was no evidence that the deceased was subjected to cruelty soon before her death. The learned Addl. Government Advocate refuted the contentions and supported the findings of the learned trial court and, also relied upon the judgment of Apex Court reported in 2003 CAR page 636 Hira Lal Vs. State of Delhi. 19. I have gone through the entire evidence of the prosecution with the assistance of the learned counsel for the parties. On perusal of the evidence of Ganesh Ram PW1, I find that the fact related to cruelty and dowry demand came to his knowledge only on 23.12.2000 when he came to his house from Delhi and now, it is to be decided as to whether this evidence is a hearsay evidence or is admissible under Section 6 of the Indian Evidence Act. Under Section 6 of the Indian Evidence Act, it is necessary that to be a fact relevant, it must have been a part of the same transaction. It is also necessary that the statement, which is said to be admissible, must be substantially contemporaneous with the fact and not merely the narrative of a past. The general rule is that heresay evidence is not admissible. The rationale in making certain statement or fact admissible under Section 6 of the Indian Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be a part of the same transaction. In other words, such statement must have been made contemporaneous with the acts, which constitute the offence or atleast immediately thereafter. But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae. In view of the above settled principle of law, the evidence of Ganesh Ram PW1 cannot be held to be a part of the same transaction. Thus in the above background, the evidence of Ganesh Ram PW1 can be termed as hearsay evidence. So far as the evidence of Harish Ram PW2 is concerned, it shall also be termed as hearsay one. 20. Perusal of either portion of the letter dated 16.7.2000 (which was written by the deceased as well as by her brother after her marriage) doesn’t reveal any demand for dowry by the appellants. The letter Ex. Kha- 2 which was written by the deceased to her grandfather after her marriage and which was intercepted by the appellants before it reaches to the destination, indicates as follows: ’’ vknz.kh; cqcq th dks esjh vksj ls pj.k Li"kZ vkxs pkpk th o pkph dks pj.k Li"kZ vkxs eEeh dks es vkidh csVh gsek dh vksj ls pj.k Li"kZ vkxs o HkkbZ enu fiadh Ikk;y ,oa cheyk oh|h;k eqds’k dks esjh vksj ls vfr I;kj ehys vkxs cqcq th vkt Ik= fy[kus dk [kkl dkj.k ;g gS fd izes’oj dh dikZ ls vc esjh rch;r Bhd gqbZ gS vkxs cqcq th vki yksx esjh phUrk er djuk tgka vki yksxks us esjh 'kknh dj nh rks vc ;g lkspks fd ge ls fcnk gks xbzZ gS vkxs vkids tekbZ 'kuhokj dks ?kj vk;s Fks vkSj cq}okj dks pys x;s Fks vkxs cqcq th tc ls ;gk Fkh rc ;gka ds nks pdj yxk;s vkSj es buds ?kj es vkbZ rks eq>ls ;s ugha iqNk fd rsjh rch;r dSlh gS vkSj … nhu ?kj esa jgsa rks jkst nk# ih vkSj tkrs le; Hkh nk# ihds x;sA vkxs pkpk th ;s eq>s iqNrs rks buds ekWrk firk Hkh iqNrs ;gk vkds nlh ckrs djrs gS fd vki Hkh dgrs gks fd tekbZ vPNk gS vkxs pkpk th vki ckckth ds ikl tkds o dke djds ys vkuk eagsj flag us tks cuk;k rk ml ls dqN vlj ugha gqvk vki cukus tkosxs rks iqjh ijhokj lghr cukds ykuk vkxs cheyk ds ekekth dks lknh dc gS lks tokc vki us ugha nh;k vkxs cqcq th vki ?kqlk