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2021 DIGILAW 605 (UTT)

DINESH CHANDRA v. STATE OF UTTARANCHAL

2021-11-29

RAVINDRA MAITHANI

body2021
JUDGMENT Per : Hon'ble Ravindra Maithani, J. Present appeal is preferred by the appellants against the judgment and order dated 31.12.2003 passed in Sessions Trial No. 41 of 2000, by the court of Session Judge, Pithoragarh. By the impugned judgment and order, the appellants have been convicted under Section 498A and 304-B IPC and sentenced as hereunder :- “(i) Under Section 498A IPC, rigorous imprisonment for a period of three years and a fine of Rs. 1,000/-. In default of payment of fine to undergo rigorous imprisonment for a further period of six months. (ii) Under Section 304B IPC, rigorous imprisonment for a period of seven years." 2. Briefly Stated, according to the prosecution, the deceased Daya Pant (for short, “the deceased") and the appellant no. 1 Dinesh Chandra Pant were married on 21.06.1997. The appellant Savitri Devi is the mother-in-law of the deceased. On 08.11.1997, the deceased was not found in her house. Upon a search, her dead body was recovered at a distance of 100 meters from the residence. A report of the incident was given by her brother-in-law Naresh Chandra Pant to the concerned Revenue Inspector, who conducted the inquest on 09.11.1997. From near the dead body, a bottle of nuwan (poison) was also recovered. On 10.11.1997, the post mortem of the deceased was conducted, but the cause of death could not be ascertained. 3. Thereafter, on 27.11.1997, the father of the deceased gave a report to the police, stating that, soon after marriage, the deceased was harassed for the demand of Rs. 1 Lakh in dowry. The deceased had visited her matrimonial house for Bhaiya Dooj, after marriage, and then she had narrated, the story of her harassment to her parents and other family members. Based on this report, chik FIR was lodged and a case was registered against the appellants and Naresh Chandra Pant. Since, in the post mortem of the deceased, the cause of death could not be ascertained, the viscera was sent for forensic examination. In the viscera, organo-chloro-insecticides poison was detected. The Investigating Officer (for short, “IO") prepared the site plan and after conducting investigation, submitted the charge sheet against the appellants and Naresh Chandra Pant for the offences punishable under Section 306 IPC. On 19.01.2001, charge under Sections 498A, 304B and 306 IPC were framed against the appellants and Naresh Chandra Pant. 4. In the viscera, organo-chloro-insecticides poison was detected. The Investigating Officer (for short, “IO") prepared the site plan and after conducting investigation, submitted the charge sheet against the appellants and Naresh Chandra Pant for the offences punishable under Section 306 IPC. On 19.01.2001, charge under Sections 498A, 304B and 306 IPC were framed against the appellants and Naresh Chandra Pant. 4. In order to prove its case, prosecution examined, as many as, six witnesses, namely, PW1 Suresh Chandra Pant, father of the deceased, PW2 Smt. Laxmi Devi, mother of the deceased, PW3 Mahesh Chandra Pant, brother of the deceased, PW4 Dr. Dhirendra Singh Bankoti, PW5 Anand Ram and PW6 Prem Vallabh. 5. The appellants were examined under Section 313 of the Code of Criminal Procedure, 1973. According to them, they have been falsely implicated in the case. 6. After hearing the parties, by the impugned judgment and order, Naresh Chandra, has been acquitted of the charge, but the appellants have been convicted and sentenced, as stated hereinbefore. The appellants have been acquitted of the charge under Section 306 IPC. Aggrieved by it, the appellants are in appeal. 7. Heard learned counsel for the parties and perused the record. 8. Learned counsel for the appellants would submit that the prosecution has utterly failed to prove its case beyond reasonable doubt. The conviction and sentence is bad in the eyes of law. He would submit the following points in his submission:- (i) The deceased was good in studies. She was not happy with the marriage. (ii) The deceased died on 08.11.1997, immediately, thereafter information was sent to the father of the deceased and even inquest was conducted a day thereafter and post mortem on 10.11.1997, but the parents or brother of the deceased did not come to see the deceased at the last time. (iii) In the FIR, there have been no specific averments as to how the deceased was harassed or tortured. (iv) The FIR is delayed. Had it been a case of demand of dowry, the FIR would have been prompt. (v) The delay has not been explained and the explanation which is offered is not satisfactory. (iii) In the FIR, there have been no specific averments as to how the deceased was harassed or tortured. (iv) The FIR is delayed. Had it been a case of demand of dowry, the FIR would have been prompt. (v) The delay has not been explained and the explanation which is offered is not satisfactory. (vi) The statement of PW3 Mahesh Chandra Pant, who is brother of the deceased is not reliable, because according to him, after Bhaiya dooj, when he went to see off the deceased in her matrimonial house, demand of dowry was made to him, but he did not reveal it to anyone and for the first time, he stated it before the court. (vii) When was the money demanded, there is no time or specific averment. (viii) There is no independent witness to the incident. The statements of the witnesses are contradictory. For this purpose, reference has been made to the statement of PW1 Suresh Chandra Pant and PW2 Smt. Laxmi Devi with regard to the factum, as to how many times did the deceased visit their house after marriage. 9. Learned counsel would submit that the appellants are liable to be acquitted of the charge and the appeal deserves to be allowed. 10. On the other hand, learned State counsel would submit that within five months of her marriage, the deceased died in her matrimonial house. The death occurred other than under normal circumstances. There are specific allegations of demand of dowry and in viscera, poison has been detected. The deceased was not sent to her paternal house by the accused pressing the demand of dowry and this fact has categorically been stated by PW2 Smt. Laxmi Devi, who is mother of the deceased and PW3 Mahesh Chandra Pant, brother of the deceased. According to learned counsel, it amounts to cruelty. It is argued that the appeal is devoid of merit and it deserves to be dismissed. 11. PW1 Suresh Chandra Pant is father of the deceased, who lodged the FIR. According to him, the deceased was married on 21.06.1997 and she died in her matrimonial house on 08.11.1997. The deceased had visited her paternal house four times after her marriage and every time, she had told that the appellants and her brother-in-law harass her for the demand of dowry. They wanted Rs. 1 Lakh, additional, in dowry. According to him, the deceased was married on 21.06.1997 and she died in her matrimonial house on 08.11.1997. The deceased had visited her paternal house four times after her marriage and every time, she had told that the appellants and her brother-in-law harass her for the demand of dowry. They wanted Rs. 1 Lakh, additional, in dowry. According to this witness after marriage on the occasion of Bhaiya Dooj, the deceased had visited her paternal house all alone. When asked, why did she come alone, she told that her husband had left her on the road warning that she should return with Rs. 1 Lakh. The next day, the deceased was sent alongwith her brother to her matrimonial house. Thereafter, on 08.11.1997, she died. According to PW1 Suresh Chandra Pant, he was much depressed, therefore, he could not promptly lodge the FIR and on 27.11.1997 he filed a report Ex. A1. 12. PW2 Smt. Laxmi Devi, mother of the deceased and PW3 Mahesh Chandra Pant, brother of the deceased, both have corroborated the statement of PW1 Suresh Chandra Pant in their examination-in-chief. 13. PW4 Dr. Dhirendra Singh Bankoti, conducted the post mortem of the deceased. According to him, the cause of death could not be ascertained. Therefore, viscera was preserved. 14. PW5 Anand Ram is the Revenue Sub Inspector. He was given FIR by PW1 Suresh Chandra Pant. He lodged the chik FIR and conducted inquest and proceedings of post mortem. He also took into custody the slippers, a plastic bottle of nuwan and a sickle from near the dead body. He proved these articles in the court as well. 15. PW6 Prem Vallabh is the IO. He sent the viscera for forensic examination and after investigation, submitted the charge sheet. 16. This is an unfortunate incident that a young girl of 21 years of age died within five months of her marriage other than under normal circumstances. Her death was due to poisoning. But, the question is as to whether, the appellants committed cruelty upon her, as to drive her to commit suicide. The appellants have been convicted for the offence punishable under Sections 304B and 498A IPC. Section 304B IPC is as hereunder:- “304B. Her death was due to poisoning. But, the question is as to whether, the appellants committed cruelty upon her, as to drive her to commit suicide. The appellants have been convicted for the offence punishable under Sections 304B and 498A IPC. Section 304B IPC is as hereunder:- “304B. Dowry death.— (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven year 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. Explanation.— For the purpose of this sub-section, “dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life." 17. In fact, in or der to carve the menace of dowry, stringent provisions have been made in the statute books. Section 113B of the Indian Evidence Act, 1872 (for short, “the Evidence Act") is one of such provisions which permits for raising presumption as to dowry death, if it is shown that soon before the death, the woman was subjected to cruelty. This Section 113B of the Evidence Act is as hereunder:- “113B. Presumption as to dowry death.— 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 has been subjected by such person to cruelty or harassment for, or in connection with, any demand of dowry, the Court shall presume that such person had caused the dowry death. Explanation.— For the purpose of this section, “dowry death" shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860). 18. A bare analysis of Section 304B IPC reveals that in order to attract the provision of this Act, the following should be proved:- (i) The death of a married woman caused by burns or bodily injuries or occurs otherwise than under normal circumstances. 18. A bare analysis of Section 304B IPC reveals that in order to attract the provision of this Act, the following should be proved:- (i) The death of a married woman caused by burns or bodily injuries or occurs otherwise than under normal circumstances. (ii) The death occurred within 7 years of her marriage. (iii) It is shown that soon before her death, she was subjected to cruelty by her husband or any relatives of her husband. (iv) The cruelty and harassment was done for or in connection with demand of dowry. 19. In the instant case, there is oral evidence adduced by the prosecution which has been accepted by the court below, while convicting the appellants under Section 398A and 304B IPC. It is the matter of appreciation of evidence. The offence is heinous, but then, the evidence has to be appreciated, so as to find out, as to whether, the offence has been committed or not. The truth has to be elucidated. 20. In the case of Girish Singh Vs. State of Uttarakhand (2019) SCC OnLine 897, 2019 (3) NCC 128 , the Hon'ble Supreme Court observed on this aspect, as hereunder:- “50. Truth in a criminal trial is discovered by not merely going through the cross-examination of the witnesses. There must be an analysis of the chief examination of the witnesses in conjunction with the cross examination and the re-examination, if any. The effect of what other witnesses have deposed must also enter into consideration of the matter. On the one hand, the laudable object underlying Section 304B of the IPC is not to be lost sight of. On the other hand, it is equally important that the Appellate Court must not be oblivious to the fact what it is duty bound to find is whether an offence is committed or not and such a pursuit also would embrace the duty of the court to apply its mind to the evidence as a whole and arrive at conclusions as to facts and inferences therefrom as well. After all, at stake for the accused are, priceless rights to liberty, reputation and the right to life, not only of himself but also his family members. The law Giver, has contemplated that the High Court will be the final arbiter of facts and even of law. After all, at stake for the accused are, priceless rights to liberty, reputation and the right to life, not only of himself but also his family members. The law Giver, has contemplated that the High Court will be the final arbiter of facts and even of law. The jurisdiction of the Apex Court was deliberately limited to the extra ordinary powers it enjoys under Article 136 of the Constitution of India unless it be exercised under other provisions. What we wish to emphasise is that the cause of justice and the interest of litigants would be better subserved if the Appellate Court takes a closer look, in particular of the cross-examination of the witnesses and analyse the same." 21. PW1 Suresh Chandra Pant, PW2 Smt. Laxmi Devi and PW3 Mahesh Chandra Pant have stated that for the demand of Rs. 1 Lakh as dowry, the deceased was harassed. It has to be appreciated. The evaluation of the statements is to be made alongwith the attending circumstances to find out the truth. 22. An argument has been raised that the FIR is delayed. Undoubtedly, the FIR is delayed and generally, in such cases, delay in lodging the FIR has less bearing, if it is explained. The explanation need not be meticulous. It may not be disputed that after the death of a young girl, the parents may find it difficult to consolidate with their mental faculty. Although, it differs with person to person as to how they receive the news of the death of a young girl. But, the fact remains that under certain circumstances, some persons react with much delay to lodge any criminal case, after the death of his or her young daughter. In this light, this Court will examine the cause for delay. 23. PW1 Suresh Chandra P:ant is the first informant, who lodged the FIR on 27.11.1997. In page 3, paragraph 2 of his statement, he has stated that after receiving the news of the death of his daughter, he was unconscious and distressed. Thereafter, on 27.11.1997, he gave a report. In the beginning of his cross examination, PW1 Suresh Chandra Pant tells that his son Rajendra Prasad, who was on job in Lucknow had got the report lodged. Thereafter, on 27.11.1997, he gave a report. In the beginning of his cross examination, PW1 Suresh Chandra Pant tells that his son Rajendra Prasad, who was on job in Lucknow had got the report lodged. In page 7 of his examination, PW1 Suresh Chandra Pant tells that his elder had come after 15-16 days of the death of his daughter and during that period, this witness was unconscious. He had not informed to any of his relatives or sons about the death of his daughter. His two sons were staying in Thal, which is at the distance 6 Km. But, those two children also did not come home during that period. 24. PW3 Mahesh Chandra Pant, who is the son of PW1 Suresh Chandra Pant. He was in Thal. Studying in a school, when his sister died. In page 3, in last but one paragraph, he tells that next day of the death of his sister, he came back to his home and his younger brother also came alongwith him. But, PW1 Suresh Chandra Pant has stated that his both sons did not come from Thal, till the report was lodged. Why? 25. There is another aspect of the matter. According to PW1 Suresh Chandra Pant, when he was informed about the death of his daughter, he was with a Heera Valabh of his village (statement recorded at page 7). PW2 Smt. Laxmi Devi, wife of PW1 Suresh Chandra Pant tells in the court that they had received the information that the deceased was unwell. Hearing this news, PW1 Suresh Chandra Pant had left for Thal, where Heera Vallabh was staying. In Thal, PW1 Suresh Chandra Pant, according to PW2 Smt. Laxmi Devi, came to know about the death of her daughter. Therefore, he returned home alongwith his two sons. As stated, PW1 Suresh Chandra Pant has said that till he lodged the FIR, his sons from Thal did not come home (statement of PW2 at Page 3 bottom and Page 4 top). This is significant aspect. PW3 Mahesh Chandra Pant also tells that next day, he had returned his home. 26. PW1 Suresh Chandra Pant was informed about the death of his daughter. He did not go to see his daughter for the last time. He has given an explanation that he was unconscious and depressed, therefore, he did not lodged the FIR. PW3 Mahesh Chandra Pant also tells that next day, he had returned his home. 26. PW1 Suresh Chandra Pant was informed about the death of his daughter. He did not go to see his daughter for the last time. He has given an explanation that he was unconscious and depressed, therefore, he did not lodged the FIR. He did not inform his son, who was on job in Lucknow or to any other relatives. He also tells that his two sons, who were studying in Thal did not come home, until he lodged the FIR. But, this part of the statement of PW1 is not reliable, because PW3 Mahesh Chandra Pant himself has stated that two persons from the matrimonial house of the deceased had informed his father that the deceased had committed suicide. It also belies the statement of PW2 Smt. Laxmi Devi when she says that firstly, they got the information that the deceased was unwell. According to PW3 Mahesh Chandra Pant the categorical information was given that the deceased had committed suicide and next day, PW3 Mahesh Chandra Pant returned home. 27. The explanation of delay is not much satisfactory. It appears, as if, PW1 Suresh Chandra Pant is not telling the whole truth before the court. It's effect will be seen in further analysis. 28. A few facts are admitted. The appellants are also agriculturists. At the time of marriage, the appellant Dinesh Chandra was not on job. Subsequently, he was teaching in some school. PW1 Suresh Chandra Pant and PW2 Smt. Laxmi Devi have stated about it. It has also been stated by both these witnesses that at the time of marriage, the appellant Dinesh Chandra did not demand any dowry. In his statement, PW1 Suresh Chandra Pant also tells that the appellant Dinesh Chandra had visited his house thrice after the marriage (page 5 bottom para). It means, the appellant Dinesh Chandra himself has never demanded dowry. During investigation, PW1 Suresh Chandra Pant told it to the IO that the conduct of the appellant Dinesh Chandra was good towards her. He did not maar peet with her. This is admitted by PW6 Prem Vallabh (in page 3, last para). It means, the appellant Dinesh Chandra himself has never demanded dowry. During investigation, PW1 Suresh Chandra Pant told it to the IO that the conduct of the appellant Dinesh Chandra was good towards her. He did not maar peet with her. This is admitted by PW6 Prem Vallabh (in page 3, last para). Although, it has been denied by PW1 Suresh Chandra Pant in his statement recorded at Page 5, last but one paragraph, when he says that he did not tell it to the IO that his daughter never told him about maar peet by the appellant. Why is it so? 29. There may be cases, where it is stated by the prosecution witnesses that the demand of dowry was made and particularly, money was demanded in dowry without further indication, as to why money was demanded. But, instant case is little different. Here PW2 Smt. Laxmi Devi says that she had asked her daughter, as to why Rs. 1 Lakh is being demanded by her in-laws? In answer to it, according to PW2 Smt. Laxmi Devi, the deceased had told that they wanted to free their land, which was mortgaged (statement of PW2 Smt. Laxmi Devi at page 2 para 2, last lines). But, during investigation, PW2 Smt. Laxmi Devi had told it to the IO that Rs. 1 Lakh was demanded, so that in-laws of the deceased may purchase some land (statement of PW2 Smt. Laxmi Devi page 6 para 2). The reasons for demand of money has completely been changed by PW2 Smt. Laxmi Devi. To the IO, she tells that the appellants and their family members wanted to purchase some land therefore, they wanted money. Whereas, in the court, she has stated in her examination-in-chief that the appellants wanted to free their land from mortgage. Why is this contradiction? It doubts the credibility of this witness with regard to the demand of dowry made by the appellant. 30. PW3 Mahesh Chandra Pant would submit that when he had gone to see off his sister, after bhaiya dooj, Rs. 1 Lakh was demanded, because they wanted to purchase some land. But, this witness did not tell to the IO and for the first time he has stated it in the court. The reason for demand of dowry is not consistent. 1 Lakh was demanded, because they wanted to purchase some land. But, this witness did not tell to the IO and for the first time he has stated it in the court. The reason for demand of dowry is not consistent. It doubts the credibility of PW1 Suresh Chandra Pant, PW2 Smt. Laxmi Devi, PW3 Mahesh Chandra Pant. There is only oral evidence. This is not inspiring any confidence. 31. Having considered the entirety of facts, this Court is of the view that the statements of PW1 Suresh Chandra Pant, PW2 Smt. Laxmi Devi, PW3 Mahesh Chandra Pant are not so reliable, so as to prove the case of the prosecution beyond reasonable doubt. There is no other evidence. Therefore, this Court is of the view the appeal deserves to be allowed. 32. The appeal is allowed. 33. The impugned judgment and order dated 31.12.2003 passed in Sessions Trial No. 41 of 2000, by the court of Session Judge, Pithoragarh is set aside. Appellants are acquitted of the charge under Sections 498A and 304B IPC. 34. Appellants are on bail. Their bonds are cancelled and sureties discharged of their liability. The appellants shall furnish a personal bond and two sureties by each one of them, each of the like amount to the satisfaction of the court concerned under Section 437A of the Code within thirty days from today. 35. Let a copy of this judgment along with Lower Court Record be transmitted to the Court below for compliance.