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Uttarakhand High Court · body

2012 DIGILAW 788 (UTT)

State of Uttarakhand v. Mohan Singh

2012-12-20

BARIN GHOSH, U.C.DHYANI

body2012
JUDGMENT : U.C. Dhyani, J. Present Government Appeal was preferred by the State of Uttarakhand against the Judgment and Order dated 18.04.2007 passed by learned Sessions Judge, Pithoragarh, in Sessions Trial No. 49 of 2005, whereby accused-respondents Mohan Singh, Kailash Singh and Smt. Jayanti Devi were acquitted of the charge of offences punishable under Sections 498-IPC, 304-B IPC and Section 3/4 Dowry Prohibition Act 2. PW 3 Umed Singh wrote a complaint (Ext. Ka-2) to S.O. Kotwali, Pithoragarh on 30.09.2004, enumerating the facts contained therein that his daughter Poonam was married to accused-respondent Kailash on 26.05.2003. Soon after the marriage, Poonam's in-laws started demanding a sum of Rs. 50,000/-. They also demanded an ornament on the occasion of rakshabandhan. Poonam's in-laws started harassing Poonam on account of non-fulfillment of dowry. Poonam made a complaint of the same to the informant and his wife. Poonam's dewar (brother-in-law) Banti also used to made obscene gestures to Poonam. When Banti's complaint was made to his mother, Banti also started teasing her. Poonam informed her parents that she would come to them and explain everything in detail. Poonam's in-laws refrained Poonam from coming to her parental house on 27.09.2004 and 28.09.2004. She was killed on 28.09.2004. Chik FIR (Ext. Ka-7) on the basis of complaint (Ext. Ka-2) was registered on 30.09.2004 at 12:30 p.m. as case crime no. 1296 of 2004 for the offence punishable under Section 304-B IPC in PS Kotwali, Pithoragarh. 3. On the basis of said first information report, which was registered as case crime no. 1296 of 2004, the investigation began. PW 6 B.R. Arya (Circle Officer) took the statements of the writer of first information report and the informant PW 3 Umed Singh. Thereafter, he inspected the place of occurrence, prepared site plan, recorded the contents of inquest report in case diary, took the statements of other witnesses, affected arrest of accused-respondent Mohan Singh, prepared memo of arrest, affected arrest of accused-respondent Jayanti Devi, prepared memo of arrest of Jayanti Devi, sent viscera to the Forensic Science Laboratory, obtained the report, affected arrest of the third accused-respondent Kailash Singh and finally on being satisfied that the accused-respondents committed the offences punishable under Section 498-A IPC, Section 304-B IPC and Section 3/4 Dowry Prohibition Act, charge-sheets (Ext. Ka-15 & Ext. Ka-17) were submitted. 4. Ka-15 & Ext. Ka-17) were submitted. 4. When the trial began and prosecution opened it's case, charge for the offences punishable under Sections 498-A, 304-B IPC and Section 3/4 Dowry Prohibition Act was framed against the accused-respondents Mohan Singh, Kailash Singh and Jayanti Devi, to which they pleaded not guilty and claimed trial. Six prosecution witnesses, namely, PW 1 Dr. Narendra Sharma, PW 2 Smt. Anandi Devi, PW 3 Umed Singh, PW 4 Devki Nandan, PW 5 Const. Ramesh Lal, and PW-6 B.R. Arya were examined on behalf of prosecution. No witness was examined in defence. Incriminating evidence was put to the accused-respondents under Section 313 Cr.P.C., in which they denied the allegations and said that they were falsely implicated in the case. After considering the evidence on record, learned trial court acquitted accused-respondents of the charges levelled against them. Aggrieved against the judgment and order of acquittal of the accused-respondents, present Government Appeal was preferred. 5. PW 1 Dr. Narendra Sharma conducted autopsy on the dead body of victim. According to postmortem report (Ext. Ka-1), no ante-mortem external injury was present. According to PW 1, the cause of death of victim could not be ascertained and therefore, viscera was preserved for chemical analysis. 6. Special Judicial Magistrate, Ist class, Pithoragarh referred the matter to Forensic Science Laboratory, Agra vide Ext. Ka-13. The question framed by learned Special Judicial Magistrate was - whether victim died on account of consumption/intake of poison? The Laboratory, vide report Ext. Ka-14 found aluminum phosphate in stomach, intestine, liver, gallbladder, kidney and spleen. 7. PW 2 Anandi Devi said that her daughter Poonam was married to Kailash Singh on 26th May, 2003. Accused Mohan Singh and his wife Jayanti demanded a motorcycle and Rs. 50,000/- as dowry, to which PW 2 expressed her inability. On this, accused Mohan Singh and Jayanti said that the dowry may be given when PW 2's husband retires and starts getting pension. PW 2's husband was working in Army when the marriage took place. PW 2 said that the accused-respondents started harassing Poonam for dowry. Accused Kailash assaulted Poonam in May, 2004. On 28th September, 2004, Poonam made a telephone call to her mother. She was weeping. Poonam said that she will be telling PW 2 everything in detail. PW 2's husband was working in Army when the marriage took place. PW 2 said that the accused-respondents started harassing Poonam for dowry. Accused Kailash assaulted Poonam in May, 2004. On 28th September, 2004, Poonam made a telephone call to her mother. She was weeping. Poonam said that she will be telling PW 2 everything in detail. On 29.09.2004, when PW 2 was waiting for her daughter to come, Mohan Singh and his son Prakash came to PW 2 and informed that Poonam was admitted in hospital. When PW 2 and her husband went to hospital, Poonam was dead (on 29.09.2004). PW 2's husband retired in December, 2004. 8. PW 3 Umed Singh, was the father of Poonam (victim). He was serving in Army, when the marriage of Poonam and Kailash took place. According to PW 3 accused-respondents demanded Rs. 50,000/- and a motorcycle in dowry. PW 3 could not fulfill the same. The victim was done away with on account of non-fulfillment of dowry demand. PW 3 proved his complaint (Ext. Ka-2). 9. PW 4 Devki Nandan, Naib Tehsildar, prepared inquest report (Ext. Ka-4) and referred the dead body for postmortem. PW 5 Constable Keshav proved chik FIR (Ext. Ka-7) and entry of the same in G.D. (Ext. Ka-8). When accused was arrested, the same was entered in G.D. (Ext. Ka-9). PW 6 B.R. Arya, Circle Officer, took upon himself the investigation of the case. He took the statements of the witnesses, inspected the place of incident, prepared site plan, affected arrest of the accused-respondents, recorded the statements of the informant and his wife, tendered the report of FSL in evidence and after being satisfied with the fact that the accused-respondents have committed the crime, submitted charge-sheet (Ext. Ka-17) against them. 10. A perusal of the evidence on record reveals that although two limbs of dowry death were proved, prosecution failed to prove the third limb. Although, the victim died within seven years of her marriage with accused Kailash Singh, otherwise than under normal circumstances, but it could not be shown that soon before her death, she (victim) was subjected to cruelty or harassment by her husband and his parents for, or in connection with, any demand for dowry. The third limb could not be proved. Although, the victim died within seven years of her marriage with accused Kailash Singh, otherwise than under normal circumstances, but it could not be shown that soon before her death, she (victim) was subjected to cruelty or harassment by her husband and his parents for, or in connection with, any demand for dowry. The third limb could not be proved. Learned court below has indicated the reasons as to why the evidence of PW 2 and PW 3 regarding the third limb of the offence complained of was not acceptable. We subscribe to the findings given by learned court below. In addition to grounds, which have been described by learned court below for non acceptance of the evidence of PW 2 and PW 3, we may add a few more things. 11. PW 2 Anandi Devi in her examination-in-chief admitted that the victim died on 29.09.2004. She was overzealous in implicating the accused-respondents. The same was evident from her statement wherein she said that her husband retired in December, 2004 and since then the accused-respondents were demanding motorcycle in marriage anniversary of her daughter Poonam. It is surprising that the respondents persisted with the demand of motorcycle even after victim's death. The same was not possible. Further, she admitted in her cross-examination that when the respondents demanded dowry, no one else (other than PW 2 and respondents) was there. PW-3, father of the victim gave the statement on the basis of what was told to him by his wife (PW 2). The statement of PW 3 was based upon hearsay, in as much as, he gave the statement on the basis of what was told to him either by his wife or by his daughter. Such a piece of evidence was not acceptable. Thus, prosecution was not able to prove it's case beyond reasonable doubt. 12. There is no scope of interference with the judgment rendered by learned court below. Government Appeal preferred against the judgment dated 18.04.2007 is liable to be dismissed and is accordingly dismissed.