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2023 DIGILAW 208 (UTT)

State of Uttarakhand v. Girish Tiwari

2023-02-28

RAVINDRA MAITHANI, SHARAD KUMAR SHARMA

body2023
JUDGMENT : Ravindra Maithani, J. The State proposes to challenge the judgment and order dated 28.03.2022, passed in Session Trial No.08 of 2020, State Vs. Girish Tiwari & others, by the court of Additional District and Sessions Judge, Tehri Garhwal. By the impugned judgment and order, the respondents (“the accused”) have been acquitted of the charge under section 498A and 304B IPC, and 3/4 of the Dowry Prohibition Act 1961 (“the Act”). 2. An application for leave to appeal has also been filed. 3. Heard learned counsel for the parties and perused the record. 4. Facts necessary to appreciate the controversy briefly stated are as follows:- 5. The deceased and respondent no.1 Girish Tiwari, were married on 21.05.2017. According to the prosecution, after marriage the deceased was harassed for the demand of dowry by the accused. The deceased was killed on 05.05.2020. It is also the prosecution case that two months prior to the death of the deceased, the respondent no.1 Girish Tiwari, had demanded Rupees Two Lakh, from the parents of the deceased. An FIR was lodged by the brother of the deceased. Based on which, the Case Crime No.09 of 2020, under sections 498A, 304B IPC and 3/4 of the Act, was lodged against the accused. Investigation was carried out, and after investigation, charge sheet was submitted against the accused, which is the basis of the case. Charge under sections 498A, 304B IPC and 3/4 of the Act were framed against the accused on 14.1.2021, to which they denied and claimed trial. 6. The prosecution in order to prove its case examined as many as 12 witnesses, namely, PW 1 Sandeep Gairola, PW 2 Lakhi Ram Gairola, PW 3 Vrinda Devi, PW 4 Kalpana, PW 5 Doctor Ankit Saini, PW 6 Purnanand Gairola, PW 7 Manisha Bhatt, PW 8 Komal Saini, PW 9 Kamal Thapa, PW 10 Fincha Ram Chauhan, PW 11 Juhi Manral, PW 12 Vinod Suyal. 7. After examination of the prosecution witnesses, the accused were examined under section 313 of Code of Criminal Procedure, 1973 (“the Code”). They have denied the prosecution case. According to them, they had never demanded any dowry. After hearing, by the impugned judgment and order, the accused have been acquitted of the charge. 8. 7. After examination of the prosecution witnesses, the accused were examined under section 313 of Code of Criminal Procedure, 1973 (“the Code”). They have denied the prosecution case. According to them, they had never demanded any dowry. After hearing, by the impugned judgment and order, the accused have been acquitted of the charge. 8. Learned State Counsel would submit that the deceased died within seven years of her marriage; she died other than under the normal circumstances; she was subjected to cruelty for and in connection with the demand of dowry. Respondent no.1 Girish Tiwari, who is the husband of the deceased, had demanded Rupees Two Lakh for running his business from the parents of the deceased. It is argued that it has been proved by the witnesses, but the court below committed an error in acquitting the accused. 9. On the other hand, learned counsel for the accused would submit that alleged demand was made five months prior to the death of the deceased; the demand was allegedly made for running the business and it is the prosecution case that demand was made once only. It is argued that it is not a case of dowry death. 10. Undoubtedly in order to bring the guilt under section 304B IPC, the prosecution has to establish the following : (i) The death of a woman within seven years of her marriage. (ii) The death took place other than under the normal circumstances. (iii) Soon before her death, the woman was subjected to cruelty or the harassment by her husband and other relatives of the husband. (iv) Such cruelty or harassment was done for or in connection with the demand of dowry. 11. Mere demand of some money for running business in all cases does not amount to dowry. The law has been discussed on this point by the Hon’ble Supreme Court in the case of Jatinder Kumar Vs. State of Haryana, 2020 (16) SCC 721 , in paragraph no.9, of the judgment, the Hon’ble Apex Court has observed as follows:- “9. But the view of the Court reflected in that judgment that seeking financial assistance would not per se constitute demand for dowry has been rejected by a later judgment of a three-Judge Bench of this Court in the case of Rajinder Singh Vs. State of Punjab (2015) 6 SCC 477 . But the view of the Court reflected in that judgment that seeking financial assistance would not per se constitute demand for dowry has been rejected by a later judgment of a three-Judge Bench of this Court in the case of Rajinder Singh Vs. State of Punjab (2015) 6 SCC 477 . Upon considering the case of Appasaheb (supra) and certain other authorities, it was held in the case of Rajinder Singh (supra):- “20. Given that the statute with which we are dealing must be given a fair, pragmatic, and common-sense interpretation so as to fulfil the object sought to be achieved by Parliament, we feel that the judgment in Appasaheb case followed by the judgment of Vipin Jaiswal do not state the law correctly. We, therefore, declare that any money or property or valuable security demanded by any of the persons mentioned in Section 2 of the Dowry Prohibition Act, at or before or at any time after the marriage which is reasonably connected to the death of a married woman, would necessarily be in connection with or in relation to the marriage unless, the facts of a given case clearly and unequivocally point otherwise.” 12. The FIR in the instant case has been lodged by PW 1 Sandeep Gairola, who happens to be the brother of the deceased. According to him, the deceased and accused Girish Tiwari, were married on 21.05.2017. He states that some time before her death, the deceased and her husband had visited their house and accused Girish Tiwari, had demanded Rupees Two Lakh, to start his business. This witness tells that at the time his father told that he did not have the money and after two to four months, he would pay the same. 13. According to the PW 1 Sandeep Gairola, deceased was harassed by her husband and mother-in-law. He also tells that on 05.05.2020, at 4 PM, in the evening he received an information that the deceased had become unconscious. On the same day, at 6:30 PM, when he inquired about the condition of the deceased, he was told that the deceased had committed suicide. 14. PW 2 Lakhi Ram Gairola, is the father of the deceased, he has not stated about any demand of dowry, as such, he tells that the deceased was not treated well in her in-laws’ house, and on 25th April, she was killed. 15. 14. PW 2 Lakhi Ram Gairola, is the father of the deceased, he has not stated about any demand of dowry, as such, he tells that the deceased was not treated well in her in-laws’ house, and on 25th April, she was killed. 15. PW 3 Vrinda Devi, is the mother of the deceased, according to her, the deceased was harassed for the demand of dowry, Rupees Two Lakh was demanded in dowry. According to PW 3 Vrinda Devi, in the marriage jewellery and all other articles were given. Accused were not happy with it. 16. PW 6 Purnanand Gairola, is the uncle of the deceased. He also tells that the deceased had revealed it to him that her husband and mother-in-law, have tortured and demanded money for running the business. 17. PW 7, Manisha Bhatt, is the sister of the deceased, she has stated that after one year of marriage the deceased was harassed by the accused; she also tells that in fact the accused Girish Tiwari, would doubt her character, and he would not allow her to visit her parent house. These are the witnesses of the facts. 18. PW 4 Kalpana, has proved the Chik FIR. 19. PW 5 Doctor Ankit Saini, had conducted the post mortem of the deceased. In his deposition, he has stated about the condition of the dead body. He has also proved the post-mortem-report. 20. PW 8, Komal Saini, is a witness of the inquest. PW 9 Kamal Thapa, has video recorded the proceedings of the post mortem. PW 10 Fincharam Chauhan, conducted the inquest, and prepared other documents for the purposes of post-mortem. 21. PW 11 Juhi Manral, is the Investigating Officer, who inspected the site and prepared the site plan dated 06.05.2020, and submitted the charge sheet. 22. PW 12, Vinod Suyal, is a witness of the recovery of some articles from the place of the incident. 23. In the impugned judgment, the court below has discussed the evidence quite in detail. The discussion has been made on the following points as well : (i) When was the demand made? (ii) Who were present when the demand of dowry was made? (iii) Why was the demand made and? and (iv) As to whether the deceased was ever harassed in her in-laws’ house? 24. The discussion has been made on the following points as well : (i) When was the demand made? (ii) Who were present when the demand of dowry was made? (iii) Why was the demand made and? and (iv) As to whether the deceased was ever harassed in her in-laws’ house? 24. During the course of hearing, the learned State Counsel would submit that the witnesses may not be expected to speak correctly as to when the demand was made. This is true. But then, if witnesses are correct and precise in their statement as to when the demand was made, then definitely such evidence falls for consideration and scrutiny of the Court. 25. In the instant case, PW 1 Sandeep Gairola, the brother of the deceased submitted that on 9/10.12.2019, accused Girish Tiwari, had visited their house along with the deceased and in paragraph no.7, of his statement he tells that the demand was made prior to that date. When asked as to when the demand was made, as to when the accused Girish Tiwari, visited their house prior to 09/10.12.2019, in paragraph no.9 this witness could not reveal any date. 26. PW 3 Vrinda Devi, is the mother of the deceased. According to her, the demand was made in the month of January, 2020. It was never made prior to that date or after that date. The demand was made in the presence of this witness and her husband (a statement of PW 3 Vrinda Devi, para 9). 27. The court below has noted the contradictions with regards to the date when allegedly the demand was made and the persons in whose presence it was made because on the one hand, according to PW 3, the demand was made in the presence of this witness her husband, whereas in paragraph no.12, of his statement PW 1 Sandeep Gairola, tells that the demand was made in the presence of his mother, father and sister. 28. The court below has rightly concluded that these factors make the demand doubtful. 29. According to the prosecution, the demand of Rupees Two Lakh, was made to run the business, and it was made only once, it was not continuing. It is not the prosecution case that this demand was so pressed that the deceased had no option but to commit suicide. 30. 29. According to the prosecution, the demand of Rupees Two Lakh, was made to run the business, and it was made only once, it was not continuing. It is not the prosecution case that this demand was so pressed that the deceased had no option but to commit suicide. 30. The impugned judgment also takes note of the statement of PW 6 Purnanand Gairola and PW 7 Manisha Bhatt. They are the uncle and the sister of the deceased. In the impugned judgment it has been observed that their statements do not support the prosecution case. In fact PW 7 Manisha Bhatt, has raised one more issue with regards to the doubting character of the deceased by the accused Girish Tiwari, which in fact has not been stated by any other witness. 31. This is an unfortunate incident that a young girl committed suicide within three years of marriage; the death is other than under the normal circumstances, but the prosecution has to prove all the ingredients so as to bring the case under section 304B IPC. 32. The court may take shelter of the section 113B of the Evidence Act, but for that purpose also first and foremost the prosecution has to establish that soon before the death the deceased was subjected to cruelty and harassment for, or in connection with demand of dowry. It was the case of the defence that in fact the deceased was not happy with the marriage. She was not agreeable to this marriage. 33. PW 2 Lakhi Ram Gairola, is the father of the deceased. In his cross examination he has stated that in fact the deceased was not agreeable to this marriage, and after marriage she was always unhappy. 34. The impugned judgment is quite extensive which deals with every fact, which is brought to the notice of the court by the prosecution. The court below has rightly concluded that the prosecution failed to prove its case. There appears to be no reason to grant leave to appeal. Therefore the application for leave to appeal is liable to be dismissed. 35. Leave to appeal is accordingly dismissed. Consequently the government appeal also stands dismissed.