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Uttarakhand High Court · body

2017 DIGILAW 632 (UTT)

Nain Singh v. State of Uttarakhand

2017-11-29

LOK PAL SINGH

body2017
JUDGMENT : This appeal, preferred under section 374 of Code of Criminal Procedure, 1973 (for short Cr.P.C) is directed against the judgment and order dated 24.09.2003, passed by Sessions Judge, Pithoragarh in Sessions Trial No. 27 of 2001, State vs. Nain Singh & others, whereby said court has convicted the accused/appellants under section 304B and 498A of Indian Penal Code, 1860 ( for short IPC), and has sentenced them to rigorous imprisonment for a period of seven years u/s 304B IPC and further rigorous imprisonment for a period of two years and fine of Rs.500/-to each u/s 498A. Both the sentences were directed to run concurrently. 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story, in brief, is that on 10.06.2000 P.W.4 Kalyan Singh lodged a report at P.S. Mau, sub-district Lohaghat, District Champawat stating therein that the marriage of his daughter Ganga Devi was solemnized with the accused/appellant Nain Singh three years ago. After marriage, accused/appellants Nain Singh (husband), Dan Singh (father-in-law) and Smt. Chanchala Devi (mother-in-law) used to harass her for dowry. This fact was told to him by his daughter as well as by his wife. He alleged that 15 days back, accused Nain Singh had taken his daughter with him and he has full confidence that the accused/appellants have committed marpeet with his daughter for dowry, due to which she has died. Police prepared inquest report (Ex. A4) and got send the body for post-mortem. On 11.06.2000 Dr. U.S. Adhikari (P.W.1) conducted postmortem examination on the dead body and prepared autopsy report (Ex. A1), wherein he opined that deceased had died of asphyxia due to hanging. On the basis of said report, Case Crime No. 1/2000 was registered against the accused/appellants, relating to offence punishable under sections 498-A, 304-B and 306 of IPC. D.S.P. Ashok Kumar Bhatt (P.W.6) investigated the crime. After interrogation of witnesses and collecting evidence, he submitted charge sheet (Ex. A12) against the accused/appellants Nain Singh, Dan Singh and Smt. Chanchala Devi for their trial under section 498A and 304-B IPC and one punishable under section 3/4 of Dowry Prohibition Act. 4. On receipt of the charge sheet, the Chief Judicial Magistrate-I, after giving necessary copies to the accused as required under section 207 Cr.P.C., committed the case to the court of Sessions. 4. On receipt of the charge sheet, the Chief Judicial Magistrate-I, after giving necessary copies to the accused as required under section 207 Cr.P.C., committed the case to the court of Sessions. On 12.6.2001, learned Sessions Judge framed charge of offences punishable under section 498A and 304B I.P.C., against the accused/appellants who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Dr. U.S. Adhikari (who conducted the autopsy), P.W.2 Diwan Singh, P.W.3 Govindi Devi, P.W.4 Kalyan Singh (complainant/ father of the deceased), P.W. 5 Patwari Diwan Singh and P.W.6 D.S.P. Ashok Kumar Bhatt (Investigating Officer). 5. Thereafter, oral and documentary evidence was put to the accused persons under section 313 cr.P.C. in reply to which they stated that they have been falsely implicated in the instant case. In defence, Chandrasingh was examined as D.W.1. 6. After hearing the parties and upon perusal of the evidence led by the parties, the trial court found accused/appellants guilty of charge of offences punishable under section 498A and 304B IPC and, by judgment and order dated 24.09.2003, convicted and sentenced the accused/appellants, as above. 7. Before further discussion, this Court thinks it just and proper to mention the ante-mortem injuries found on the body of the deceased by Dr. U.C. Adhikari (P.W.1), who recorded the same in autopsy report (Ex. A1). The same are being reproduced below:- "(i) Abrasion on right cheek 1/2 X 1/2 cm brown in colour. (ii) Abrasion on chest 1/2 cm X 1/2 cm brown in colour. (iii) ligature mark on neck chocolate colour situated high up in from of neck between chin and thyroid cartilage oblique 1.5 cm long wide and 30 dm long (circular) (iv) knot situated between right mastoid and right angle of mandible. Mark contained 6cm below chin anterior at neck left side 3cm below angle of left mandible to posteriorly. There is gap of ligature mark due to hairy scalp at lower side of back of neck.” 8. In order to prove the post-mortem report, Dr. U.C. Adhikari was examined as P.W.1. He has proved the report and has opined that cause of death is asphyxia due to hanging. 9. P.W.2 Diwan Singh is uncle of the deceased. He has admitted the fact of marriage of Ganga (deceased) with Nain Singh (appellant). In order to prove the post-mortem report, Dr. U.C. Adhikari was examined as P.W.1. He has proved the report and has opined that cause of death is asphyxia due to hanging. 9. P.W.2 Diwan Singh is uncle of the deceased. He has admitted the fact of marriage of Ganga (deceased) with Nain Singh (appellant). He further stated that at the time of marriage there was no demand of dowry by the accused/appellants but after four-five months of marriage, accused/appellants started committing cruelty with the deceased for dowry. He further stated that the deceased used to make complaint that the accused/appellants commit marpit with her and sometimes she used to come to her parental house. 10. P.W. 3 Govindi Devi, mother of the deceased has corroborated the statement of P.W.2 Diwan Singh and has supported the prosecution story. 11. P.W.4 Kalyan Singh, complainant/father of the deceased has stated that the marriage of his daughter was solemnized with the accused Nain Singh five years ago. His daughter used to tell them that the accused/appellants tortures her for dowry. He further stated that after the marriage the accused/appellants were demanding Sofa set and gold necklace in dowry but he could not fulfill the said demand of accused. He further stated that the last time the deceased had come to his house one day before Chaitoli fair and had made complaint to him regarding dowry. On that day, accused/appellant Nain Singh was also accompanying her and he had also made the demand of aforesaid goods. Next day, she had returned to her matrimonial house. Thereafter, after 15 days, she had again come to his house and had told him that the accused are giving beatings to her due to non-fulfillment of demand of dowry. Next day, her husband Nain Singh came and told him that his father has sustained some injury and that his mother is also ill and asked him (complainant) to send her (deceased) with him. He further stated that he asked him not to harass his daughter and that at present he is not in a position to give dowry, whereupon, the accused/appellant had told him to give dowry whenever he (complainant) will be in a position to given the same. 12. P.W.5 Diwan Singh, Patwari has stated that on 10.06.2000 he was posted as Patti Patwari Mau. 12. P.W.5 Diwan Singh, Patwari has stated that on 10.06.2000 he was posted as Patti Patwari Mau. On the basis of report lodged by P.W.4 Kalyan Singh, he has prepared the chik F.I.R. He also prepared the inquest report of the dead body and site plan of the spot. During the course of investigation, he got conducted the post-mortem of the dead body and recorded the statements of witnesses. Thereafter, the investigation was transferred to P.W.6 D.S.P. Ashok Kumar. 13. P.W.6 D.S.P. Ashok Kumar has stated that on 18.7.2000 he was posted as Circle Officer, District Champawat. As per order of S.P. Champawat, he has taken the investigation of the case. During the course of investigation, he perused the case diary submitted the earlier I.O. and after completing the investigation, submitted the charge sheet against the accused/appellants. 14. D.W.1 Chandra Singh admitted the marriage of Nain Singh with Ganga (deceased). He stated that on wedding day, when Ganga Devi heard the sound of band, she got influenced by some spirit and became unconscious. After incantation, she became conscious. At the time of bidai same thing was happened with her. They came to know that she is already suffering from this problem. He further submitted that he never heard that the appellants have harassed the deceased on account of demand of dowry. 15. Ms. Meena Bohara, learned counsel for the appellants has submitted that there was no demand of dowry. It is an afterthought by the prosecution. It is further submitted that the ingredients of section 304 B IPC are not proved by the prosecution as the prosecution has utterly failed to prove that ''soon before death' there was any demand of dowry by the accused. There is also no evidence on record to prove that the deceased was ever tortured for demand of dowry by the accused. According to her, deceased was suffering from epilepsy, a mental disorder and it may be a reason for the deceased to commit suicide, and in any view, it was not a homicidal death. To buttress her arguments, learned counsel placed reliance upon a judgment of Hon’ble Apex Court rendered in the case of Asha v. State of Uttarakhand, (2014) 4 SCC 174 and referred paragraphs 16, 17 and 18, which are reproduced hereunder: “16. To buttress her arguments, learned counsel placed reliance upon a judgment of Hon’ble Apex Court rendered in the case of Asha v. State of Uttarakhand, (2014) 4 SCC 174 and referred paragraphs 16, 17 and 18, which are reproduced hereunder: “16. On considering the evidence of the prosecution witnesses as deposed by them which is on record, we are of the view that the charges of cruelty or harassment against the accused are not supported by legal evidence on record. The courts below have erroneously placed reliance on the letter (Ext.Ka-3) written by PW 3 to his parents which is on record to establish the charge under Section 304-B IPC, wherein he has stated in his letter that PW7 had gone to the matrimonial house of the deceased and was met with the demand for Rs.30,000. There is no evidence of demand for dowry by the accused persons prior to the alleged demand of Rs. 30,000. To satisfy the ingredients of the provision of Section 304B of the IPC, the death of a woman must be caused due to burns or bodily injuries, and must be within 7 years of her marriage. Further, it must be proved that soon before her death, she was subjected to cruelty or harassment by her husband or her relatives “in connection with the demand for dowry”. 17. The said charge has not been proved by the prosecution by adducing evidence to attract the ingredients of the offence under Section 304B of the IPC. The trial court and the appellate court have not taken great care in analysing and appreciating the evidence on record, keeping in view the gravity of the offence of dowry death and the punishment prescribed for it u/s 304B of the IPC. They were required to scrutinise the evidence very cautiously and carefully in order to arrive at the conclusion as to whether all the ingredients of the offence with reference to the conditions enumerated u/s 304B of the IPC to convict the accused have been satisfied by the prosecution. 18. They were required to scrutinise the evidence very cautiously and carefully in order to arrive at the conclusion as to whether all the ingredients of the offence with reference to the conditions enumerated u/s 304B of the IPC to convict the accused have been satisfied by the prosecution. 18. On perusal of the evidence on record, we are of the view that the charge is not proved by the prosecution, particularly as the courts below have failed to notice that the prosecution has failed to prove that the dowry demand was made by the accused either at the time of marriage or subsequently as it has not produced convincing and cogent evidence in this regard. In this case, the evidence on record is not clear as to whether the demand for [pic]30,000/- as alleged to have been made by the accused is a demand for dowry with the deceased that can constitute cruelty or harassment by the accused. The High Court, after careful examination of the letter dated 28.06.1993, has found that it has been interpolated and that some changes have been made in the letter and some words were added to it. The courts below have erred in law in convicting the appellants herein by erroneously placing reliance upon the above so called letter, wherein certain words were added with a view to make out a fabricated charge against them to secure the conviction of the accused persons.” 16. Per contra, learned Deputy Advocate General has submitted that prosecution has successfully proved the case beyond reasonable doubt against the accused. It has been proved that the deceased was subjected to cruelty for demand of dowry by the accused persons, soon before her death and due to that reason only she has committed suicide. She has died under unnatural circumstances within seven years of marriage as such all the ingredients of Section 498-A and 304-B of IPC stands proved against the accused/appellants. 17. She has died under unnatural circumstances within seven years of marriage as such all the ingredients of Section 498-A and 304-B of IPC stands proved against the accused/appellants. 17. Before going any further, it would be relevant to mention here that section 113B of Indian Evidence Act, 1872, provides that when the question is 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. The explanation to the section provides that expression 'dowry death' shall have the same meaning as in section 304B of IPC. Section 304B of the IPC defines 'dowry death' and provides punishment for said offence. Section 304B IPC 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 other 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. Sub-section 2 of section 304B further provides that whoever commits dowry death shall be punished for imprisonment for a term which may not be less than seven years but which may extend to imprisonment for life. It is relevant to mention here that section 498A provides punishment for an offence of cruelty by husband or a relative of husband of a woman. 18. Their Lordships of Hon’ble Supreme Court in the case of Satvir Singh and others vs. State of Punjab and another, (2001) 8 SCC 633 has observed as under: “20. Prosecution, in a case of offence under Section 304B IPC cannot escape from the burden of proof that the harassment or cruelty was related to the demand for dowry and also that such cruelty or harassment was caused soon before her death. The word dowry in Section 304B has to be understood as it is defined in Section 2 of the Dowry Prohibition Act, 1961. That definition reads thus: “2. The word dowry in Section 304B has to be understood as it is defined in Section 2 of the Dowry Prohibition Act, 1961. That definition reads thus: “2. In this Act, ‘dowry’ means any property or valuable security given or agreed to be given either directly or indirectly - (a) by one party to marriage to the other party to the marriage; or (b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person; at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies. 21. Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third is “at any time” after the marriage. The third occasion may appear to be an unending period. But the crucial words are “in connection with the marriage of the said parties”. This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of “dowry”. Hence the dowry mentioned in Section 304B should be any property or valuable security given or agreed to be given in connection with the marriage. 22. It is not enough that harassment or cruelty was caused to the woman with a demand for dowry at some time, if Section 304B is to be invoked. But it should have happened soon before her death. The said phrase, no doubt, is an elastic expression and can refer to a period either immediately before her death or within a few days or even a few weeks before it. But the proximity to her death is the pivot indicated by that expression. But it should have happened soon before her death. The said phrase, no doubt, is an elastic expression and can refer to a period either immediately before her death or within a few days or even a few weeks before it. But the proximity to her death is the pivot indicated by that expression. The legislative object in providing such a radius of time by employing the words soon before her death is to emphasise the idea that her death should, in all probabilities, have been the aftermath of such cruelty or harassment. In other words, there should be a perceptible nexus between her death and the dowry related harassment or cruelty inflicted on her. If the interval elapsed between the infliction of such harassment or cruelty and her death is wide the court would be in a position to gauge that in all probabilities the death would not have been the immediate cause of her death. It is hence for the court to decide, on the facts and circumstances of each case, whether the said interval in that particular case was sufficient to snuff its cord from the concept “soon before her death”. 23. Applying the said principle in this case we have to refer to the evidence of the prosecution to know whether the findings made by the High Court on the facts warrant interference. PW-5 Tejinder Pal Kaur in her evidence said that 4 or 5 months after her marriage, she was ill-treated on the ground of insufficiency of dowry and then she reported the matter to her father. But PW-5 did not say one word in her evidence regarding any other ill treatment relating to dowry thereafter. It is true, she said in her evidence that in November 1995, a sum of Rs.20,000/- was paid by her father. But neither PW-5 (Tejinder Pal Kaur) nor PW-6 (Narendra Singh) testified that the said amount was paid as part of the dowry or in connection with the marriage. We cannot overlook two important events which had happened in the family during the said long interregnum of three years. One is the birth of the elder son on 12.11.1993 and the other is the birth of the second son on 10.6.1995. We have to bear in mind the payment of Rs.20,000/- was made five months after the birth of the second son. One is the birth of the elder son on 12.11.1993 and the other is the birth of the second son on 10.6.1995. We have to bear in mind the payment of Rs.20,000/- was made five months after the birth of the second son. Even PW-6 had no case that his daughter was subjected to any ill treatment in connection with the demand for dowry on any day after she reported to him about the demand for further dowry way back in the early 1993 months. All amounts paid by the in-laws of the husband of a woman cannot become dowry. 19. Their Lordships of Hon’ble Supreme Court in the case of Rajinder Singh v. State of Punja, (2015) 6 SCC 477 has observed as under: “7. The primary ingredient to attract the offence under Section 304B is that the death of a woman must be a "dowry death". "Dowry" is defined by Section 2 of the Dowry Prohibition Act, 1961, which reads as follows: "2. Definition of "dowry".-In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly- (a) by one party to a marriage to the other party to the marriage; or (b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies. Explanation I.- [***] Explanation II.-The expression "valuable security" has the same meaning as in Section 30 of the Indian Penal Code (45 of 1860)." 8. A perusal of this Section shows that this definition can be broken into six distinct parts: (1) Dowry must first consist of any property or valuable security -the word "any" is a word of width and would, therefore, include within it property and valuable security of any kind whatsoever. (2) Such property or security can be given or even agreed to be given. The actual giving of such property or security is, therefore, not necessary. (3) Such property or security can be given or agreed to be given either directly or indirectly. (2) Such property or security can be given or even agreed to be given. The actual giving of such property or security is, therefore, not necessary. (3) Such property or security can be given or agreed to be given either directly or indirectly. (4) Such giving or agreeing to give can again be not only by one party to a marriage to the other but also by the parents of either party or by any other person to either party to the marriage or to any other person. It will be noticed that this clause again widens the reach of the Act insofar as those guilty of committing the offence of giving or receiving dowry is concerned. (5) Such giving or agreeing to give can be at any time. It can be at, before, or at any time after the marriage. Thus, it can be many years after a marriage is solemnised. (6) Such giving or receiving must be in connection with the marriage of the parties. Obviously, the expression "in connection with" would in the context of the social evil sought to be tackled by the Dowry Prohibition Act mean "in relation with" or "relating to". 9. The ingredients of the offence under Section 304B have been stated and restated in many judgments. There are four such ingredients and they are said to be: (a) death of a woman must have been caused by any burns or bodily injury or her death must have occurred otherwise than under normal circumstances; (b) such death must have occurred within seven years of her marriage; (c) soon before her death, she must have been subjected to cruelty or harassment by her husband or any relative of her husband; and (d) such cruelty or harassment must be in connection with the demand for dowry.” 20. Now, this Court has to examine as to whether the basic ingredients to attract the provisions of section 498-A and 304-B IPC have been proved by the prosecution. First ingredient under Section 304-B IPC is that the death of a woman should be caused by burns or fatal injury or otherwise than under a normal circumstance. In order to prove this ingredient, prosecution has produced P.W.1 Dr. U.C. Adhikari, who has conducted the postmortem of the body of the deceased and has opined that cause of death is asphyxia due to hanging. In order to prove this ingredient, prosecution has produced P.W.1 Dr. U.C. Adhikari, who has conducted the postmortem of the body of the deceased and has opined that cause of death is asphyxia due to hanging. Therefore, there is no doubt that the first essential ingredient of section 304-B I.P.C. is present in this case that the deceased has died under unnatural circumstances as the deceased has committed suicide by hanging herself on a tree. 21. There is no dispute regarding the existence of second essential ingredient of section 304-B I.P.C. The deceased has died within seven years of her marriage. All the prosecution witnesses of fact are throughout cogent and consistent with regard to the fact that deceased has died after three years of marriage, which means within seven years of marriage. Thus, the second ingredient of dowry death is also present in this case. 22. Now the question is whether the third ingredient of section 304-B I.P.C. relating to cruelty and harassment by the husband in connection with dowry demand and harassment of deceased soon before her death is present in this case or not. 23. A careful scrutiny of evidence available on record shows that although all the prosecution witnesses have repeated the same facts that there was consistent demand of dowry and that the deceased was subjected to cruelty for demand of dowry, however, on an over all assessment of their depositions, it reveals that they are not stating true facts. The allegations levelled by the witnesses are general in nature and no specific allegation has been made against any of the accused persons. It has been stated by the witnesses that the deceased was subjected to cruelty for demand of dowry but the same is not supported by any medical evidence, however, all the prosecution witnesses have stated in their examination-in-chief that at the time of marriage, there was no demand of dowry from the side of accused persons. Not only this, P.W.4 Kalyan Singh, in his examination-in-chief, has stated that when he told the accused that he is not in a position to give dowry then accused himself had asked him to give dowry as and when he will be in a position to given it. Not only this, P.W.4 Kalyan Singh, in his examination-in-chief, has stated that when he told the accused that he is not in a position to give dowry then accused himself had asked him to give dowry as and when he will be in a position to given it. Moreover, there is neither any specific demand of dowry nor any particular date has been mentioned in the F.I.R. or in the statements of any of the witnesses as to when dowry was demanded by the accused persons and when the same fact was told by the deceased to her family. That apart, this Court also finds that the accused persons examined D.W.1 Chandra Singh as defence witness. However, the trial court has discarded the credibility on the statement of defence witness. This witness has categorically stated that on the wedding day, when Ganga Devi heard the sound of band, she fainted. After incantation, she became conscious. At the time of departure of Barat (bidai) same thing was happened with her. They came to know that she is already suffering from this problem. He further submitted that he never heard that the appellants have harassed the deceased on account of demand of dowry. 24. In view of the aforesaid discussion, the allegation of demand of dowry and harassment of the deceased in connection with demand of dowry soon before her death does not found established and the third essential ingredient of section 304-B I.P.C. as mentioned earlier is found missing in the present case. 25. Having appreciated the evidence on record on the point of demand of dowry, in my opinion, since the prosecution has utterly failed in proving the factum of demand of dowry, or cruelty on account of non-fulfillment of demand of dowry as such it cannot be said that charge of any of the offences punishable under section 498A or that of 304B IPC is proved against any of the accused/appellants. The presumption under section 113B of the Indian Evidence Act 1872, would have arisen only after the prosecution had proved the factum of demand of dowry and harassment for non fulfillment of demand of dowry. Therefore, I am of the opinion that the trial court has not correctly appreciated the evidence on record and has passed its judgment on conjectures and presumptions. 26. Consequently, the appeal is allowed. Therefore, I am of the opinion that the trial court has not correctly appreciated the evidence on record and has passed its judgment on conjectures and presumptions. 26. Consequently, the appeal is allowed. Impugned judgment and order dated 24.09.2003, passed by Sessions Judge, Pithoragarh in Sessions Trial No. 27 of 2001, is hereby set aside. Appellants Nain Singh, Dan Singh and Chanchala Devi are acquitted of the charge of offence punishable under Sections 498-A and 304-B of IPC. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged. Lower court record be sent back.