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2012 DIGILAW 216 (UTT)

SUNIL KUMAR DHASMANA v. STATE OF UTTARAKHAND

2012-05-08

PRAFULLA C.PANT

body2012
JUDGMENT This appeal is directed against the judgment and order dated 07.07.2009, passed by learned Sessions Judge, Pauri Garhwal, in Sessions Trial No. 46 of 2007, whereby sald court has convicted the accused/appellant Sunil Kumar Dhasmana under section 304B, 498A IPC. He has been sentenced to rigorous imprisonment for a period of ten years and directed to pay fine of Rs. 10,000/- under section 304B IPC, and further sentenced him to rigorous imprisonment for a period of three years under section 498A IPC. 2. Heard 1earned Amicus Curiae for the appellant, learned counsel for the State, and perused the lower court record. 3. Prosecution story in brief is that accused/appellant Sunil Kumar Dhasmana got married to Lata Devi (deceased) on 12.10.2005. It is alleged by the prosecution that Lata Devi was subjected to cruelty for non fulfillment of demand of dowry, and committed sulcide on 22.04.2007 by hanging herself. A First Information Report (Ex. A 1) was lodged by P. W. 1 Maheshi Devi (mother of the deceased) stating that accused/appellant demanded Rs. 1,00,000/- as dowry on 15.04.2007. It is further stated by the complainant/informant that since she was a poor widowed lady, she could not fulfill the demand and consequently her daughter Lata Devi was harassed by the accused/appellant, and she died unnatural death on 22.04.2007. On the basis of said report crime no. 1 of 2007, was registered with Patwari of the area i.e., Bichla Badalpur. (In Uttarakhand Hills certain revenue officials are given police powers). P.W. 3 Maharaj Singh, Patwari Bichla Badalpur, went to the spot to take dead body of the deceased Lata Devi into his possession and prepared inquest Report (Ex. A2) in the presence of the witnesses, sealed the body and sent it for post mortem examination, P.W. 4 Dr. Mahesh Bhatt conducted post mortem examination on dead body of Lata Devi on 23.04.2007, and prepared autopsy report (Ex. A7). He opined in the report that deceased had died of asphyxia due to ante mortem hanging. The investigation was taken up by P.W. 6 Birbal Singh Mandai, Naib Tehsildar, who interrogated the witnesses and submitted charge sheet (Ex. A 12) against accused/appellant Sunil Kumar Dhasmana and his mother Rama Devi. 4. A7). He opined in the report that deceased had died of asphyxia due to ante mortem hanging. The investigation was taken up by P.W. 6 Birbal Singh Mandai, Naib Tehsildar, who interrogated the witnesses and submitted charge sheet (Ex. A 12) against accused/appellant Sunil Kumar Dhasmana and his mother Rama Devi. 4. It appears that Judicial Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused as required under section 207 Cr.P.C., committed the case to the court of Sessions for the trial. Learned Session Judge, Pauri Garhwal, on 23.07.2007, after hearing the parties framed charge of offences punishable under section 498A/34, 304B/34 IPC, and one punishable under section 3/4 Dowry Prohibition Act, 1961, against both the accused Sushil Kumar and Rama Devi. They pleaded not guilty and claimed to be tried. On this prosecution got examined P.W.1 Maheshi Devi (informant and mother of the deceased), P.W.2 Trilochan Prasad (a relative ofthe appellant as well as of the deceased), P.W. 3 Maharaj Singh (Patwari who prepared inquest report), P.W.4 Dr. Mahesh Bhatt (who conducted post mortem examination), P.W.5 Kailash Ravi (who registered the case and prepared the site plan) and PW.6 Beerbal Singh Mandai (who investigated the crime). The oral and documentary evidence was put to the accused under section 313 of Cr.PC., in reply to which the accused admitted that the deceased was his wife. However, he alleged that evidence adduced against him was false. It is also pleaded by him that since his wife had repeated miscarriages as such, she was frustrated and committed suicide. But, no evidence in defence was adduced. Learned trial court after hearing the parties found accused/appellant Sunil Kumar Dhasmana guilty of charge of offences punishable under section 498A, 304B IPC, and convicted him accordingly. The another accused Rama Devi was acquitted of the charge. After hearing on sentence the convict was sentenced to rigorous imprisonment for a period of ten years and directed to pay fine of Rs. 10,000/- under section 304B IPC, rigorous imprisonment for a period of three years under section 498A IPC. Aggrieved by said judgment and orderlhis appeal is got sent by the convict from jail. 5. After hearing on sentence the convict was sentenced to rigorous imprisonment for a period of ten years and directed to pay fine of Rs. 10,000/- under section 304B IPC, rigorous imprisonment for a period of three years under section 498A IPC. Aggrieved by said judgment and orderlhis appeal is got sent by the convict from jail. 5. Section 304B of Indian Penal Code 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”, and such husband or relative shall be deemed to have caused her death. Word “shown” used by the legislature connotes milder form of proof as compared to that of expression “proved”. 6. Before further discussion it is pertinent to mention here that P.W.4 Dr.” Mahesh Bhatt has stated that on 23.04.2007, he conducted autopsy on the dead body of Lata Devi aged 23 years. He observed following ante-mortem injury in the autopsy report :- “A deep bluish mark which is present over the anterior aspect of neck between mandible and thyroid cartilage, continuity of mark in the neck area, the posterior aspect of neck behind the angle of mandible.” The aforesaid medical officer has opined that deceased had died of asphyxia due to hanging. From the evidence of P.W.4 Dr. Mahesh Bhatt read with autopsy report (Ex. A7) and inquest report (Ex. A2) prepared by P.W.3 Maharaj Singh, Patwari, it is clearly proved on the record that Late Devi died unnatural death on 22.04.2007. As far as the relationship of accused Sunil Kumar Dhasmana with Lata Devi is concerned, it is admitted to the accused that she was his wife. It has also come on the record that the accused/appellant got married to the deceased in October, 2005, and within two years she died a unnatural death. 7. In the above circumstances, now this Court has to see whether the deceased was subjected to cruelty at the hands of the appellant soon before her death in connection with demand of dowry or not. 7. In the above circumstances, now this Court has to see whether the deceased was subjected to cruelty at the hands of the appellant soon before her death in connection with demand of dowry or not. P.W.1 Maheshi Devi (mother of the deceased) has stated that after the marriage with the appellant Sunil Kumar Dhasmana, her daughter Lata came to her parental house and told about harassment meted to her. It is also stated by this witness that her daughter was subjected to cruelty for non fulfillment of demand of dowry. She has clearly stated that appellant Sunil Kumar Dhasmana demanded Rs. 1,00,000/- for purchasing land in Dehradun. P.W. 1 Maheshi Devi has further told that the demand was made only one week before the death of Lata Devi. As such, it is proved by this witness that soon before her death Lata Devi was subjected to cruelty for non fulfillment of demand of dowry. 8. Statement of P.W. 1 Maheshi Devi is further corroborated by P.W.2 Trilochan Prasad who is not relative from patemal side of the deceased. He is infact distant father-in-law of the deceased. He has also corroborated the fact that since he got arranged the marriage between Lata Devi and Sunil Kumar Dhasmana, Lata Devi used to come to him and shed tears. The witness further told that when he tried to know about the reasons why she keeps on weeping she disclosed that she was being ill treated. 9. Section 113B of Indian Evidence Act provides that when the question is whether the person has committed the dowry death of a woman and it is shown that soon before her death such woman has 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. From the statement of P.W.1 Maheshi Devi it has been sufficiently shown that the deceased was subjected to harassment by her husband in connection with demand of dowry of Rs. 1,00,000/- as such the presumption under aforesaid section is in favour of the prosecution. Though accused/appellant Sunil Kumar Dhasmana in his statement under section 313 Cr.P.C., has stated that his wife had three-four miscarriages and she got frustrated but no evidence was led in defence in this connection to show that she committed suicide on account of the miscarriages. 10. 1,00,000/- as such the presumption under aforesaid section is in favour of the prosecution. Though accused/appellant Sunil Kumar Dhasmana in his statement under section 313 Cr.P.C., has stated that his wife had three-four miscarriages and she got frustrated but no evidence was led in defence in this connection to show that she committed suicide on account of the miscarriages. 10. Learned Amicus Curiae on behalf of the appellant submitted before this Court that from the statement of P.W.6 Beerbal Singh Mandai it is clear that he was told by one of the villagers that accused/appellant Sunil Kumar Dhasmana had gone for worshiping at the time of incident, and was not in his house. On close scrutiny of the evidence, this Court finds that since it is not a case of trial relating to charge of murder, as such merely non presence of the appellant in hls house for a brief period when his wife committed suicide is of no help to him. The trial accused/appellant facing is in respect of offence punishable under section 304B IPC. 11. For the reasons as discussed above, so far as conviction recorded by the trial as against accused/appellant Sunil Kumar Dhasmana in connection with offences punishable under section 498A, 304B is concerned, same suffers from no illegality, nor there is any wrong appreciation of evidence. However, considering the facts and circumstances of the case sentencing the accused/appellant to rigorous imprisonment for a period of seven years under section 304B IPC would have met the ends of justice. As such, on the point of sentence on the count of section 304B IPC, the appeal deserves to be partly allowed. Accordingly, the appeal is dismissed so far as the same relates to conviction of accused/appellant Sunil Kumar Dhasmana under section 498A, 304B IPC. On the point of sentence, the appeal is partly allowed. The sentence awarded by the trial court under section 498A IPC, is not interfered with. But the sentence awarded by the trial court under section 304B IPC, (ten years rigorous imprisonment and fine of Rs. 10,000/-) is set aside, and he is sentenced to rigorous imprisonment for a period of seven years on said charge. Both the sentences (under section 498A and 304B of I.P.C.) shall run concurrently and the period spent by the accused/appellant in jail, shall be adjusted from the sentence as modified by this Court. 10,000/-) is set aside, and he is sentenced to rigorous imprisonment for a period of seven years on said charge. Both the sentences (under section 498A and 304B of I.P.C.) shall run concurrently and the period spent by the accused/appellant in jail, shall be adjusted from the sentence as modified by this Court. Let a copy of this judgment be sent to the superintendent of the Jail concerned. Lower court record be sent back.