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Uttarakhand High Court · body

2008 DIGILAW 248 (UTT)

Bahadur Singh v. State

2008-06-10

J.C.S.RAWAT

body2008
Judgment This appeal has been directed against the judgment and order dated 25/26.05.2006, passed by learned Sessions Judge, Pithoragarh in S.T.No. 44 of 2004, whereby the appellant has been convicted & sentenced to undergo rigorous imprisonment for seven years under section 304-B Indian Panel Code, 1860 (for brevity as I.P.C.) and a fine of Rs.3,000/-. In default of payment of fine, the appellant shall further undergo six months R.I. 2. Brief facts for the disposal of this appeal are that an F.I.R. was lodged by the complainant Padam Singh in the police Station Jhula Ghat on 17/08/2004 at about 6:30 p.m. alleging therein that marriage of his daughter Smt. Kavita and appellant Bahadur Singh was solemnized on 27/04/2003. On 15/08/2004 at about 1:30 p.m., an information was given to the parents of the deceased about her illness. On this, his wife Bhaghirathi Devi and other relatives went to the matrimonial house of his daughter and found her dead in suspicious circumstances. Thereafter, the complainant who was working at Kathgodam was informed on telephone on 16/08/2004 at about 7:00 a.m. about the said incident. Thereafter, he took the leave and reached at the place of incident and found her daughter dead in suspicious circumstances. It was further alleged that the accused/appellant and his relatives were responsible for committing the death of the deceased on account of dowry demand. On the basis of written report, a case was registered against the accused persons namely Bahadur Singh, Gopal Singh and Basanti Devi. Thereafter, the police also conducted the post mortem on the dead body of the deceased and after completing the investigation, the Investigating Officer submitted the chargesheet Ex.Ka.12 before the court concerned. 3. The accused persons were committed to the Court of Sessions and the trial court framed charge u/s 304-B I.P.C. against the accused persons. The accused persons denied the charge and claimed to be tried. 4. The prosecution in support of its case examined Dr. Satish Kumar PW1 who conducted the post mortem on the body of the deceased. Bhaghirathi Devi PW2 is the mother of the deceased. The informant Padam Singh PW3 is the father of the deceased. Harish Singh PW4 is the cousin of the informant. 4. The prosecution in support of its case examined Dr. Satish Kumar PW1 who conducted the post mortem on the body of the deceased. Bhaghirathi Devi PW2 is the mother of the deceased. The informant Padam Singh PW3 is the father of the deceased. Harish Singh PW4 is the cousin of the informant. Bhaghirathi Devi PW2, Padam Singh PW3 and Harish Lal PW4 have stated in their evidence that marriage took place on 27/04/2003 and whenever the deceased used to come to her parental house, she used to complain about the dowry and harassment meted to her by her in-laws. Constable Balkishan PW5 is the formal witness. Shri B.R. Arya PW6 is the Investigating Officer of the case. 5. After recording the entire evidence, the accused persons were examined u/s 313 Cr.P.C. and they denied the entire evidence and pleaded not guilty to the offence. The accused have stated that on 15/08/2004, the deceased went to ease herself out about a distance of 20-25 meter in sloppy area and while she was returning she fell down on the ground. Thereafter she complained pain on her body. The doctor was called but by that time the deceased had died. The accused further denied the demand of dowry and harassment of the deceased by him. 6. The accused persons examined village Pradhan Harish Singh DW1 in support of his defence. 7. The learned Sessions Judge on appreciation of the evidence held accused-appellant Bahadur Singh guilty to the offence charged against him and convicted & sentenced him as mentioned above. However, the other co-accused Gopal Singh and Basanti Devi were acquitted by the learned trial court. 8. I have heard Mr. Lokendra Dobhal, Advocate for the appellant; Mr. Prabhakar Joshi, Brief Holder for the State and perused the record. 9. It is not disputed that the death occurred on the date and time as alleged by the prosecution. The prosecution has also led the oral evidence on this point. Dr. Satish Kumar PW1 conducted the post mortem of the deceased and found the following ante mortem injury on the person of the deceased :- Greenness colouration over the iliac fossa, face and clotted blood. The eyeball soft and yielding whole body chest swollen. Tongue protrude out swollen and caught between teeth. Both eye ball bulging out. Blisters present at places skin peeled off. Scalp hail easily pulled off. Labia majora swollen. The eyeball soft and yielding whole body chest swollen. Tongue protrude out swollen and caught between teeth. Both eye ball bulging out. Blisters present at places skin peeled off. Scalp hail easily pulled off. Labia majora swollen. Blood stain present around the vagina. R/M passed off from neck and upper limb. Partially present over lower limb red colour fluid coming from nostril and mouth. The doctor has opined that the injuries could have been caused by forceful assault. He has also stated that if forcible assault on the person of the deceased was made with fist, the ribs of the deceased could be broken and liver could be damaged. He has further opined that the cause of death was shock and haemorrhage as a result of ante mortem injury. He has also stated that there was no external injury on the body of the deceased. It is established that the death of the deceased occurred at the time & place indicated by the prosecution. 10. The ingredients to attract the provisions of Section 304- B are as follows:- (1) the death of a woman should be caused by burns or fatal injury or otherwise than under normal circumstances; (2) such death should have occurred within seven years of her marriage; (3) she must have been subjected to cruelty or harassment by her husband or any relative of her husband; and (4) such cruelty or harassment should be for or in connection with demand for dowry. If the above ingredients are proved, Section 113-B of the Evidence Act, which lays down when the question as to 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. 11. The prosecution in support of its case examined Bhagirathi Devi PW2 who is the mother of the deceased. She has stated in her evidence that the appellant was married with her daughter-deceased Kavita and was demanding Rs. 50,000/- for starting a business. She has further stated that the appellant was demanding the aforesaid amount from them as dowry not as loan. She has stated in her evidence that the appellant was married with her daughter-deceased Kavita and was demanding Rs. 50,000/- for starting a business. She has further stated that the appellant was demanding the aforesaid amount from them as dowry not as loan. She has also stated that her second daughter Renu was married on 3rd June, 2004 and the appellant & the deceased were also invited in the marriage. The appellant put pressure on them to provide Rs.50,000/- but they assured the appellant that after the marriage of her daughter Renu, they would meet his dowry demand. She has further stated that when her daughter-deceased Kavita came to her parental house to celebrate 'harela' festival before her death, at that time the accused/appellant asked her that if his demand of Rs.50,000/- is not fulfilled, he will not take the deceased with him to her matrimonial house. On this, she told him that she had no money at present but assured him that his demand would be fulfilled later on. On 15/08/2004 some people came from the village of the accused/appellant and informed her that her daughter was not feeling well. After receiving this information, she went to the matrimonial house of her daughter and found her dead. 6 12. Complainant Padam Singh PW2 is the father of the deceased. He has stated in his evidence that his daughter was married with the accused/appellant; the accused/appellant was demanding Rs.50,000/- as dowry; and the accused/appellant used to commit cruelty and harassed her daughter on account of demand of dowry. He has further stated that on the date of incident he was posted at Kathgodam where he received the information about the death of his daughter from Harish Singh PW4, the cousin of the deceased. Thereafter, he came to the place of incident and found her daughter dead. Thereafter, he lodged the F.I.R. 13. Harish Singh PW4 is the cousin of the deceased. He has stated in his evidence that the deceased was married with the accused/appellant on 27/04/2003; when the deceased came to her parental house, she complained that the accused/appellant and her in-laws were demanding CD player and the father of the deceased fulfilled this demand. He has further stated that whenever the deceased used to come to her parental house alongwith the accused/appellant, the accused/appellant demanded dowry of Rs.50,000/-. He has further stated that whenever the deceased used to come to her parental house alongwith the accused/appellant, the accused/appellant demanded dowry of Rs.50,000/-. This witness has further corroborated the evidence of Bhaghirathi Devi PW2. 14. There is no dispute in between the parties and there is also ample evidence of the prosecution that the marriage took place on 27/04/2003 and the death occurred on 15/08/2004 within seven years of marriage of the deceased. It is further established from the evidence of the doctor as well as by the defence version that the death of the deceased was unnatural. Thus, the ingredient Nos. (1) and (2) of Section 304-B I.P.C. (Supra) are established. 15. If the evidence of Bhaghirathi Devi PW2, informant Padam Singh PW3 and Harish Singh PW4 read together it reveals that the dowry demand was made right from the beginning. It is also alleged in their evidence that demand for Rs.50,000/- and CD player was made by the accused/appellant. The mother of the deceased has further stated that when the appellant and the deceased came to her house, the appellant demanded a sum of Rs. 50,000/- at the time of marriage of her second daughter. The appellant was assured that he would be provided the said money after sometime, as they were not in a position to fulfill the said demand at that time. It is further in the evidence of the prosecution that at the time of 'Bhitoli' in the month of Chaitra in the year 2004, demand for Rs.50,000/- was again made by the appellant and he was assured to pay the said amount in future. It is also stated in the evidence that the deceased and her husband came to the house of the complainant on the occasion of 'harela' festival (it generally follows on 14th and 15th July each year) and the appellant again demanded a sum of Rs. 50,000/-. He was again assured to meet his demand later on. It is also in the prosecution evidence that CD player was provided to the appellant. 50,000/-. He was again assured to meet his demand later on. It is also in the prosecution evidence that CD player was provided to the appellant. It is very much in the evidence that the dowry demand was made initially at the time of the marriage of the deceased; secondly at the time of the marriage of second daughter of the informant on 3rd June, 2004; thirdly at the time of giving the Bhitoli to the deceased in the month of chaitra; and finally when the appellant and the deceased came to the parental house of the deceased, the appellant demanded a sum of Rs.50,000/-. There is nothing on the cross examination of the prosecution witnesses to discredit their testimony. The evidence of the prosecution witnesses is consistent, reliable and cogent in all respect. The trial court after going through the entire evidence has found the evidence credible and cogent. The evidence is totally believable and reliable. I do not find any fault in the approach of the trial court holding the evidence of prosecution reliable, credible & cogent. 16. The learned counsel for the appellant contended that the informant, the father of the deceased immediately after receiving the information from his nephew came to the police station Champawat and gave a written report to the police station which is recorded in the G.D.14 dated 16.08.2004. This fact has been admitted by the Investigating Officer Shri B.R. Arya PW6. It was further contended that the said report did not contain the averments of dowry demand, as such, this report belies the entire evidence of the prosecution. Learned Addl. G.A. refuted the contention. It is true that the said report only gives indication that daughter of the informant has died in her matrimonial house and the informant has some suspicion about the death of her daughter. The evidence which has been led by the prosecution is that Harish Singh PW4 informed the informant about the death of his daughter at Haldwani where he was posted. Before reaching at the spot, the informant went to the police station where he gave a report and thereafter reached at the matrimonial house of the deceased. Thus, the informant has only mentioned in his earlier report that he has some suspicion about the death of his daughter. Before reaching at the spot, the informant went to the police station where he gave a report and thereafter reached at the matrimonial house of the deceased. Thus, the informant has only mentioned in his earlier report that he has some suspicion about the death of his daughter. When the informant had received the information of the death of his daughter, it would have automatically upset his mental state and whatever he thought proper he informed the police. It is a settled position of law that such reports are not the encyclopedia of the fact and every minute details should not be mentioned in the report. When the informant reached at the spot and came to know that it was a homicidal death, then he recorded the F.I.R. which indicates all the facts. Thus, the contention of the learned counsel for the appellant is not sustainable. 17. The learned counsel for the appellant further contended that the Investigating Officer has stated in his cross examination that the accused/appellant demanded C.D. Player after six months of the marriage whereas demand of Rs.50,000/- was made just before six months of the death of the deceased. The Investigating Officer has stated in his cross examination as under :- "ngst dh ekax es C.D. ekaxk tkuk 'kknh ds 6 ekg ckn crkus dh ckr ineflag o HkkxhjFkh ds c;kuks es vkbZ gSA ipkl gtkj :i;s dh ekax fd;k tkuk ejus ls ,d ekg igys ekaxuk crk;kA" The learned counsel for the appellant further contended that the prosecution has taken the case that the appellant was demanding a sum of Rs.50,000/- and C.D. player right from the beginning of the marriage is falsified by the aforesaid evidence of the Investigating Officer. The learned Addl. G.A. refuted the contention and contended that the prosecution witnesses were examined on the point that the dowry demand was made initially at the time of the marriage of the deceased; secondly at the time of the marriage of second daughter of the informant; thirdly at the time of the giving the Bhitoli to the deceased in the month of chaitra; and finally when the appellant and the deceased came to the parental house of the deceased, the appellant demanded a sum of Rs.50,000/-. It was also contended that the C.D. player which was demanded by the appellant was given to him after the marriage. It was also contended that the C.D. player which was demanded by the appellant was given to him after the marriage. No witnesses have been confronted to their previous statements. Section 145 of the Indian Evidence Act, 1872 clearly provides that a witness may be cross examined as to his previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him or being proved. If it is intended to contradict in writing, his attention must before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. The statements sought to be contradicted should be proved and drawn to the witnesses if the witness has not been drawn to the previous statement such statement cannot be taken into account in the evidence. In the instant case, no such statement recorded u/s 161 Cr.P.C. has been put to the witnesses. If the witnesses have not stated the fact of the demand of dowry during the aforesaid four occasions during the course of the investigation, these statements should have been put to the witnesses. If these contradictions have not been proved, it has no evidentiary value and it cannot be held that the witnesses had not stated during the course of their investigation. The underlined principle of this section is that attention of the witness should be called to those parts of the diary entries by which it is intended to contradict him by proving that they represent the actual statement of the witness to the police. In many cases the Investigating Officer may be able to prove that the writing is an accurate record or at any rate, a correct summary of the statements made to him by the witness during the course of the investigation. In that event, the writing comes on the record as proof of the statement of the witness. This section is attracted only when two contradictory statements are made by the same witness and not when the statement of one is contradicted by the other. The witness should have a liberty to explain his contradictory statements made during the course of the investigation in the trial. Thus, I do not find any force in the contention raised by the learned counsel for the appellant. 18. The witness should have a liberty to explain his contradictory statements made during the course of the investigation in the trial. Thus, I do not find any force in the contention raised by the learned counsel for the appellant. 18. The learned counsel for the appellant has relied upon the judgment of the Hon'ble Apex Court in the case of Appasaheb and another Vs. State of Maharashtra reported in (2007) 3 SCC (Cri) p/468. It is apparent from the perusal of that judgment in the statement recorded u/s 161 Cr.P.C. there was no averment that the girl was meted harassment due to the dowry demand. Only it is stated that due to the domestic reasons the death occurred and the accused was demanding a sum of Rs.1,000/- or 1,200/- for domestic expenses and for purchasing manure as he had no sufficient money. In the instant case, there is a demand of Rs.50,000/- as dowry from the beginning. It is also stated in the evidence of Bhaghirathi Devi PW2 that the appellant was demanding this money as a dowry not as a loan. Thus, it is apparent that the judgment of the Hon'ble Apex Court is not applicable in this case. 19. In view of the foregoing discussions and on the basis of the aforesaid evidence, I am of view that the prosecution has been able to establish the guilt beyond reasonable doubt against the appellant. I find that the learned trial court has rightly convicted and sentenced the appellant. The judgment and order dated 25/26.05.2006, passed by learned Sessions Judge, Pithoragarh in S.T.No. 44 of 2004, is hereby confirmed. The appeal is liable to be dismissed and is hereby dismissed. 20. Let the lower court record be sent back to the court concerned for compliance.