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2012 DIGILAW 776 (UTT)

Devendra alias Bittu v. State of Uttaranchal

2012-12-18

BARIN GHOSH, U.C.DHYANI

body2012
JUDGMENT Barin Ghosh, Dhyani, JJ. One Virendra Kumar lodged a complaint to Station Officer, Police Station Laksar, District Haridwar on 01.06.1998, regarding the killing of his sister Mamta. According to the informant, his sister Mamta alias Munni was married to Devendra alias Bittu s/o Beni Prasad about 2½ years ago, according to Hindu rites and rituals. Mamtas’s in-laws were not happy with the articles, which were given in the marriage. Mamta’s husband Devendra deserted Mamta. On this, the relatives intervened. Mamta was again sent to her matrimonial house. On 30.05.1998, Devendra reached Mamta’s parental home. Devendra demanded a sum of Rs.25,000/- and a scooter from Mamta’s mother, who said that Mamta’s brothers were not present at the residence and he (Devendra) should talk to them in this regard. Despite the unwillingness of mother of Mamta to send Mamta to her matrimonial home, Devendra took his wife with him on 31.05.1998. Mamta was administered poison on the same day. On having come to know of death of Mamta, informant Virendra Kumar went to his sister’s matrimonial home, where her dead body was lying. On the basis of said complaint (Ext. Ka-1), chik FIR (Ext. Ka-12) was lodged at Police Station Laksar on 01.06.1998, at 06:15 A.M., which was registered as Case Crime No. 86 of 1998 in respect of offence punishable under Section 304B of IPC. The investigation began thereafter. Investigating Officer PW13 Brij Pal Singh Rathi (CO) was entrusted with the investigation of the case. PW13 took the statement of the informant on 02.06.1998, inspected the place of incident and prepared site plan (Ext. Ka-10). Crushed tablet was found from the bag of the victim, wrapped in a cloth and kept inside an empty matchbox, a memo (Ext. Ka-11) whereof was prepared. PW13 also took statements of Smt. Sangeeta, Ashok, Ajmer Singh, Parvati, Ram Nath Gupta, Vinod Kumar, Veer Singh, Fazal Hasan, Ramjani and others on different dates. On 05.06.1998, accused Devendra alias Bittu was arrested. The articles were sent to Forensic Science Laboratory for chemical analysis. On being satisfied that the accused Devendra alias Bittu committed the offence, a charge sheet (Ext. Ka-13) was filed against him. 2. When the trial began and prosecution opened it’s case, charge for the offence punishable under Section 304B of IPC was framed against accused Devendra alias Bittu, to which he pleaded not guilty and claimed trial. On being satisfied that the accused Devendra alias Bittu committed the offence, a charge sheet (Ext. Ka-13) was filed against him. 2. When the trial began and prosecution opened it’s case, charge for the offence punishable under Section 304B of IPC was framed against accused Devendra alias Bittu, to which he pleaded not guilty and claimed trial. As many as 13 witnesses were examined on behalf of the prosecution. They were – PW1 Virendra Kumar, PW2 Ashok Kumar s/o Ram Nath, PW3 Smt. Parvati, PW4 Ashok Kumar s/o Phool Singh, PW5 Dr. R.R. Verma, PW6 Fazal Hasan, PW7 Vinod Kumar, PW8 Veer Singh, PW9 Ramjani, PW10 S.I. Kirpal Singh, PW11 Raghuveer Sharan, PW12 Ram Avtar and PW13 Circle Officer Brij Pal Singh Rathi. DW1 Smt. Rekha and DW2 Dr. Vinay Kumar Gupta were examined in defence. Incriminating evidence was put to the accused under Section 313 of Cr.P.C., in reply to which the accused Devendra alias Bittu said that he was falsely implicated in the case. After considering the evidence on record, learned trial court convicted accused Devendra alias Bittu for the offence punishable under Section 304B of IPC. He was sentenced to undergo imprisonment for life. Aggrieved against said order of conviction and sentence, present criminal appeal was preferred by the convict. 3. The postmortem on the dead body of the deceased was conducted by PW5 Dr. R.R. Verma. He proved postmortem report (Ext. Ka-4) and said that since cause of death could not be ascertained hence, viscera was preserved. 4. DW2 Dr. Vinay Kumar Gupta found the presence of poison in the body of the victim vide report Ext. Kha-1. He also proved his report (Ext. Kha-2) in which he informed the Station Officer, Police Station Gang Nahar, Roorkee that the victim has consumed poison. Dr. Vinay Kumar Gupta wrote that the victim was admitted in Vinay Nursing Home, her (victim’s) condition was critical, as she consumed some poisonous substance. The testimony of DW2 further gets corroboration from the evidence tendered by PW9 Ramjani. PW9, who was a signatory to the inquest report, said in unequivocal terms that the panches advised (the police) that the victim has consumed some poison. 5. PW1 Virendra Kumar, in his examination-in-chief, supported the prosecution story and also proved the contents of his complaint (Ext. Ka-1). PW1 also indicated that an agreement (Ext. PW9, who was a signatory to the inquest report, said in unequivocal terms that the panches advised (the police) that the victim has consumed some poison. 5. PW1 Virendra Kumar, in his examination-in-chief, supported the prosecution story and also proved the contents of his complaint (Ext. Ka-1). PW1 also indicated that an agreement (Ext. Ka-2) was entered into between him and the accused on 23.02.1998 in presence of some witnesses. Some other prosecution documents were also proved by PW1. But, there were major discrepancies in the cross-examination of PW1. At one place, PW1 said that there was a sign of injury inflicted by belt on victim’s chest (signifying that the victim was badly treated), but ironically, nothing was depicted in the postmortem report in this respect. The inquest report (Ext. Ka-5) was also silent in this respect. The panches only suspected administration / consumption of poisonous substance by the victim in the inquest report. 6. PW2 Ashok Kumar, the brother of the victim, supported the evidence tendered by his predecessor (PW1) in the witness box. 7. PW3 Smt. Parvati was the mother of the victim. She also supported the prosecution story and repeated in her examination-in-chief, what was said by PW1 and PW2. It was PW3, to whom the accused made a demand of money alongwith the scooter, in reply to which PW3 said that let the brothers of victim come. Devendra alias Bittu then asked PW3 to send the money and scooter when the sons of this witness (PW3) come back to home. On Devendra’s persuasion, Mamta was sent with him. 8. PW4 Ashok Kumar s/o Phool Singh was the important witness. He said that a grinded tablet was found from the bag of the deceased on 02.06.1998. The grinded material was kept inside an empty match box, a memo whereof was prepared. PW4 Ashok Kumar s/o Phool Singh was also a signatory to that memo. 9. PW6 Fazal Hasan, PW7 Vinod Kumar, PW8 Veer Singh, PW9 Ramjani and PW10 Kirpal Singh were the signatories to the preparation of the inquest report (Ext. Ka-5) and related papers. 10. PW11 Raghuveer Saran proved the contents of agreement (Ext. Ka-2) entered into between the brother of the victim Virendra Kumar and the accused Devendra alias Bittu. PW11 also said that a male child was begotten by the victim after about 2-2½ months of the said agreement. Ka-5) and related papers. 10. PW11 Raghuveer Saran proved the contents of agreement (Ext. Ka-2) entered into between the brother of the victim Virendra Kumar and the accused Devendra alias Bittu. PW11 also said that a male child was begotten by the victim after about 2-2½ months of the said agreement. The child did not survive after a week. Mamta did not talk sense thereafter. She was mentally upset. PW11 Raghuveer Saran and PW12 Ram Avtar were the witnesses to the agreement (Ext Ka-2). 11. When victim consumed poison she was taken to hospital at Laksar. Dr. Vinay Kumar Gupta (DW2) found the presence of poison in the medical report. DW2, accordingly, informed the police station concerned. DW2 wrote that when the victim was admitted in Vinay Nursing Home, her condition was critical, as she consumed some poison. A case of Section 302 of IPC was gifted on a platter, but the Investigating Officer closed his eyes. Investigating Officer still persisted with the case punishable under Section 304B of IPC. How does one explain the presence of poison? No ante mortem injury was found in the postmortem report and, that was the reason, viscera was preserved. Instead of pursuing a case pertaining to offence punishable under Section 304B of IPC, the police should have investigated the case for the offence punishable under Section 302 of IPC. The same was not done. No effort was made to find out from where the victim got the poison. It was a fit case, in which action against the erring police officers, who helped the appellant by not adopting the proper course of investigation, was required to be taken. It was a case of homicidal death and the police converted it into a case of dowry death. The investigation was misdirected, obviously with a motive to help the appellant. Police was hand-in-glove with the appellant and so was the prosecution. The most important question as regards the availability of poison was not properly investigated. The investigation of the case did not proceed on proper lines. It was clearly evidenced by the testimony of DW2 that it was a case of offence punishable under Section 302 of IPC and not a case relating to offence punishable under Section 304B of IPC. The most important question as regards the availability of poison was not properly investigated. The investigation of the case did not proceed on proper lines. It was clearly evidenced by the testimony of DW2 that it was a case of offence punishable under Section 302 of IPC and not a case relating to offence punishable under Section 304B of IPC. It was DW2, who promptly informed the Station Officer of Police Station, Gang Nahar, Roorkee that the victim consumed poison, when DW2 found poison in her body, as was recorded by him in Ext. Kha-2. Letter (Ext. Kha-2) of DW2 was got received in the police station concerned on the self same day. 12. The substance inside the matchbox was sent to the Forensic Science Laboratory. No report from the Forensic Science Laboratory was received. Since report from the Forensic Science Laboratory was not received, therefore, it could not be ascertained whether there was poison inside the matchbox or not? Had the matter been properly investigated and had it been ascertained that there was poison inside the matchbox, an accusing finger might have been raised at the appellant as regards offence punishable under Section 302 of IPC. In the absence of proper investigation, it could not be ascertained whether the victim consumed poison or the same was administered to her. May be the appellant, may not be the appellant? In the absence of proper investigation, and thereby in the absence of adequate proof, it cannot be inferred by this Court at this stage that the appellant committed the murder of the victim and committed an offence punishable under Section 302 of IPC. 13. Now we proceed to discuss the evidence which was brought on record regarding dowry death. It was alleged that a demand for a scooter and Rs.25,000/- was made from the mother of victim. PW1 and PW2 were the real brothers of the victim. PW3 was the mother of the victim, before whom a demand for scooter and Rs.25,000/- was made. It has come in the evidence of PW3 that when a demand for scooter and Rs.25,000/- was made by the appellant, PW3 said that the money will be paid and the scooter will be purchased in due course of time. Being satisfied with the same, the appellant took his wife (victim) from her parental home. It has come in the evidence of PW3 that when a demand for scooter and Rs.25,000/- was made by the appellant, PW3 said that the money will be paid and the scooter will be purchased in due course of time. Being satisfied with the same, the appellant took his wife (victim) from her parental home. There was no evidence to suggest that the victim was subjected to cruelty or harassment by her husband (appellant) for, or in connection with, any demand of dowry soon before her death. It is true that the victim died within seven years of her marriage with the appellant. It is also true that the victim died otherwise than under normal circumstances. Thus, although, two limbs of dowry death were proved, but the third limb in respect of offence punishable under Section 304B of IPC was not proved. Victim’s mother Smt. Parvati (PW3) was the only witness before whom the appellant, allegedly, made a demand for dowry. PW3 said that victim came to her parental home about a month ago of the incident. The victim stayed in her parental home for a night. She came all alone. She left for her matrimonial home the very next day. After this visit, victim came to her parental home once again with the appellant. The appellant demanded Rs.25,000/- and a scooter, to which PW3 said that her sons were not present at home and the demand of appellant will be met, when they (PW3’s sons) come back. According to PW3, the appellant replied that PW3 should send the money and scooter when her (PW3’s) sons arrive. The next day, the victim left for her matrimonial home alongwith the appellant. According to PW3, the victim was done away with in the same evening. The story of demand of dowry as projected by PW3 was not believable. According to her own statement the appellant was satisfied with the reply of PW3 that the scooter alongwith the money will be paid when PW3’s sons will arrive. Further the wish of the appellant was not in the form of demand for dowry. Furthermore, there was no corroboration of the demand of dowry, as alleged by PW3, from any other quarter. Thus, the third limb of the offence punishable under Section 304B of IPC was not proved against the accused-appellant. 14. We are, therefore, constrained to allow the appeal. The appeal is, accordingly, allowed. Furthermore, there was no corroboration of the demand of dowry, as alleged by PW3, from any other quarter. Thus, the third limb of the offence punishable under Section 304B of IPC was not proved against the accused-appellant. 14. We are, therefore, constrained to allow the appeal. The appeal is, accordingly, allowed. The conviction and sentence recorded by the trial court against the appellant Devendra alias Bittu is hereby set aside. He is acquitted of the charge levelled against him. Appellant is on bail. His bail bonds are cancelled and the sureties discharged. He need not surrender. Let lower court record be sent back.