Dharam Veer, J.@mdashThis appeal preferred by the Appellant/State, u/s 378 of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C. is directed against the judgment and order dated 27.07.1993 passed by Sessions Judge, Pithoragarh, in Sessions Trial No. 33 of 1991, State v. Girish Singh and Anr., whereby the learned Sessions Judge has acquitted the Respondents-accused Jodh Singh and Girish Singh for the offences punishable under Sections 304-B read with Section 34 of the Indian Penal Code, 1860 (hereinafter to be referred as IPC) and also u/s 306 IPC read with Section 34 of IPC.
2. I have heard Sri M.A. Khan, learned Brief Holder for the Appellant/State and Sri B.S. Adhikari, learned Counsel for Respondents and perused the entire material available on record.
3. In brief the prosecution case is that on 5.6.1991, Moti Singh Mehta, Village Pradhan has informed the Patwari, Parti Circle Ghartoli, Tehsil Champawat, District Pithoragarh that on 5.6.1991 in between 10-11 A.M., Ishwari Devi, daughter in law of Jot Singh, has tried to commit suicide in her house. It was also stated that on receiving the information, the life of said woman namely Ishwari Devi was tried to save by breaking the doors, however after some time, that women has died. The said information given by Moti Singh Mehta, Village Pradhan is Ex. Ka-5. On the basis of this information, Patwari P.W.6 Ramesh Chandra Punetha reached on the place of occurrence and started preparing the inquest report on the same day i.e. on 5.6.1991 and the said inquest report was completed on the next day i.e. on 6.6.1991, the inquest report is Ex. Ka-6. (In Rural Hilly Areas of State ofUttarakhand, the Patwaris and certain Revenue Officials are being vested with police powers vide U.R Govt. Notification No. 494A/lll-418-16dated 7.3.1916). The Patwari/ I.O. also prepared the Photo Lash (Ex. Ka-7), Police Form No. 13 (Ex. Ka-8) and specimen of seal (Ex. Ka-9). On 6.6.1991, the I.O. also recovered some articles from the place of occurrence and those articles are (1) empty bottle of kerosene oil (2) burnt plastic gallon (3) a wooden cudgel length 2 fts. (4) burnt pieces of clothes-quilt, carpet, mattress, Niwar, Dhoti, pant etc. (5) a pair of half-burnt sleepers (6) hollow side of football pump and (7) ashes of burnt clothes from and thereafter he prepared a Fard of recovery, i.e. Ex. Ka. 10. The I.O. also recovered the Rotianti vegetables kept by deceased as well as the vomit of deceased from the place of occurrence and after sealing them, he prepared a Fard i.e. Ex. Ka-11. The I.O. further recovered the jewelery of the deceased Ishwari Devi viz. (1) golden Karanphool weighing half Tola (2) golden nose ring weighing 3 Ratti, (3) 2 nickel Bichuwas, (4) 2 anklets of nickel and (5) broken Chateo and after sealing them, Fard was also prepared, i.e. Ex. Ka-12. Ex. Ka-13 is the Fard for recovering the Dhoti which was wrapped on the body of deceased after the post-mortem. P.W.5 Yasodh Singh lodged the FIR (Ex. Ka-4) of this case before SDM, Lohaghat with the averments that on 5.6.1991 at about 2:30 P.M., he received information that Ishwari Devi, who was the wife of son of Respondent-Jodh Singh and was married about one and a half year back, is ill. On this information, he along with 40-50 villagers reached there and found Ishwari Devi dead and her dead body was lying on the earth. After seeing the dead body, he suspected that deceased has not died a natural death because of the reason that her body was burnt. On this application, S.D.M. Lohaghat directed Naib Tehsildar-I to go on spot and take necessary action. Naib Tehsildar-I, Champawat passed an order to Superviser Kanungo, Barakot for registering the case and to investigate the crime. On the basis of this, Chik FIR was prepared by Kanungo, Barakot, i.e. Ex. Ka-15. First of all the inquest report was prepared by P.W.6 Patwari Ramesh Chand Punetha, i.e. Ex. Ka-6 and he also prepared Photo Lash, Ex. Ka-7, Police Form No. 13, Ex. Ka-8 and specimen of seal Ex. Ka-9. He also prepared the recovery Fards viz. Ex. Ka.9 to Ex. Ka-13, as mentioned above. Thereafter, the investigation of the case was done by P.W.7 Ambi Ram, Kanungo. Later on, the investigation was transferred to P.W.8 Shyamu Ram, Naib Tehsildar on 30.7.1991 . After the inquest report, the dead body was sent for the post-mortem and the post-mortem of dead body of Ishwari Devi was conducted on 6.6.1991 at 2:00 P.M. by PW.9Dr. P.K. Karnataka, the post-mortem report is Ex. Ka-17. During the course of investigation, the I.O. collected the letter i.e. Ex. Ka-1 written by Ganesh Singh, father of deceased to his mother. The I.O. also inspected the place of occurrence and prepared the site plan, i.e. Ex. Ka-14. During the course of investigation, the I.O. recorded the statements of witnesses and after completing the investigation, he filed the charge sheet against the Respondents-Jodh Singh and Girish Singh u/s 304-B/306 of IPC, i.e. Ex. Ka-16.
4. Learned Chief Judicial Magistrate, Pithoragarh appears to have committed the case to the court of Sessions on 15.10.1991 after giving necessary copies to the Respondents/accused as required u/s 207 Code of Criminal Procedure
5. Learned Sessions Judge, Pithoragarh framed the charge against the Respondents-accused Jodh Singh and Girish Singh on 24.10.1991 u/s 304-B/34 IPC and also u/s 305/34 IPC. The charge was read over and explained to each of them, who pleaded not guilty and claimed to be tried.
6. The prosecution in order to prove its case got examined P.W.I. Km. Parwati, sister of deceased; P.W.2 Smt. Laxmi Devi, mother of deceased; P.W.3 Smt. Anandi, grandmother of deceased; P.W.4 Ganesh Singh, father of deceased; P.W.5 Yasodh Singh, uncle of deceased and complainant of the case, P.W.6 Ramesh Chandra Punetha, Patwari/ I.O. of the case; P.WJ Ambi Ram, Kanungo/also I.O. of the case, P.W.8 Shyamu Ram, Naib Tehsildar/I.O. of the case and P.W.9 Dr. P.K. Karnatak, who conducted the post-mortem on the body of deceased Ishwari Devi.
7. After that the statements of the Respondents-accused were recorded u/s 313 Code of Criminal Procedure The oral and documentary evidence was put to each of the accused-Respondentsin question from. Each of the accused-Respondents denied the allegations made against him and stated that he has been falsely implicated due to enmity. They did not produce any oral evidence in their defence. However, in documentary evidence they have produced two letters Ex. Kha-1 and Ex. Kha-2 written by Ganesh Singh, father of deceased to his daughter Ishwari Devi (deceased). They have also filed some relevant lines of statement of witness Km. Parvati as Ex. Kha.3 to Ex. Kha.5; some relevant lines of statement of witness Smt. Laxmi Devi as Ex. Kha-6 and Ex. Kha-7; some lines of statement of Anandi Devi as Ex. Kha-8 and some lines of statement of Jasod Singh (P.W.5) as Ex. Kha-9 recorded u/s 161 Code of Criminal Procedure during investigation by the I.O.
8. After appreciating the entire material available on record and hearing learned Counsel for the parties, the learned Sessions Judge, Pithoragarh vide his judgment and order dated 27.7.1993 has acquitted the Respondents-accused Jodh Singh and Girish Singh for the offences punishable under Sections 304-B/34 IPC and 306/34 IPC. Against the aforesaid judgment and order dated 27.7.1933, the State has come up in appeal.
9. The State had filed this appeal before High Court of Judicature at Allahabad and the appeal was also admitted there on 25.9.1996. This Court has received this appeal after creation of State of Uttaranchal now Uttarakhand u/s 35(2) of the U.P. Re-organization Act, 2000.
10. Before further discussion, it is pertinent to mention the injuries found by the medical officer P.W.9 Dr. P.K. Karnatak on the dead body of Ishwari Devi andwho also prepared the post-mortem report, Ex. Ka-17, which reads as under:
In the External Examination, it was found that All parts are burnt as evident by singeing of hairs, eye brows and blackening of skin".
Internal Examination:
Neck - Deep Burn, Scalp-Deep Burn, Membranes Congested badly, Brain-Grossly Congested, Thorax-Deep Burn, Pleuras-Congested Larynx-Congested, Tracheas-Congested, Right and Left Lungs were congested and charring red, Pericardium-Congested.
Cause of death was shown due to Extensive
Deep Burn.
11. To prove the aforesaid post-mortem report, the prosecution has examined P.W.9 Dr. P.K. Karnatak, who has stated that on 6.6.1991, he was posted as Surgeon at P.H.C. Champawat. On that day at 2:00 P.M., he conducted the post-mortem of dead body of Ishwari Devi, W/o Girish Singh. He has also stated that deceased was about 22 years of age and she was completely burnt and that was the matter of deep burn injuries which were 100%. He has also stated that the deceased had died due to deep burn injuries and she has died within 24 hours due to the burn injuries. He also proved the post-mortem report, i.e. Ex. Ka-17.
12. To further prove its case, the prosecution has examined P.W.1 Km. Parvati, sister of deceased, whose statement was recorded in the court on 28.4.1992. She has stated that Respondents-accused Jodh Singh and Girish Singh were known to her. Deceased Ishwari Devi was her sister, who was married to Respondent-accused Girish Singh about 21/2 years before. The mother-in-iaw of Ishwari Devi had already been died before her marriage. She further stated that whenever her sister used to come at her parental house, then she used to tell that her father in law and husband were complaining for not getting dowry and were demanding Colour Television and V.C.R. Due to this demand of dowry, they were harassing her sister. She also stated that her sister Ishwari Devi has informed her that whenever her husband-Girsh Singh was not at home, then her father in law (Jodh Singh) used to take liquor and also asking her to sleep with him so as to fulfill his sexual lust. On her refusal, she was subjected to physical cruelty by Respondent-accused Jodh Singh and even she was threatened to her life. However at every time, her mother used to send her back at her in-laws house after persuading her. She also stated that she had gone about 7-8 times to left her sister at her in-laws house. She also stated that Respondents-accused Jodh Singh and Girish Singh used to beat her sister and even they also committed Marpit with her (Km. Parvati). They also used to tell her sister that whey she had come there without dowry. On the last time, she along with her grandmother went to left her sister at her in-laws house, however at that time the doors were locked. When her sister demanded keys from her father in law and also told him that she has come along with her grandmother, then Respondent-accused Jodh Singh pushed her sister and also caused injury in the hand of her grandmother. Thereafter, she along with her grand mother came back to her house. She further stated that her father is serving in Bombay. She also stated that about 11 months before, she received the information about death of Ishwari Devi. This witness was cross-examined at length by the defence counsel but nothing has come out in her evidence which may create any doubt in her evidence. The evidence of this witness is reliable and believable.
13. P.W.2 is Smt. Laxmi Devi, mother of deceased, whose statement was recorded in the court on 3.6.1992. She has stated that Respondents-accused Jodh Singh and Girish Singh were known to her and they are father and son in relation. Deceased Ishwari Devi was her daughter who was married with Girish about 21/2 years before and mother in law of Ishwari had died before five years. Respondents-accused Jodh Singh and Girish Singh used to tell Ishwari Devi that her parents have not given Colour T.V. and V.C.R. in dowry and they were demanding these items and Respondents also used to call Ishwari Devi as ''Chipdi'' (having ugly face). The Respondents also used to threat Ishwari Devi to her life by pouring kerosene oil on her. She also stated that her daughter Ishwari Devi had given all this information to her whenever she had come to her house. She further stated that Respondent-Jodh Singh had asked her daughter before her that if she would not get T.V. and V.C.R. at the earliest, then she would be killed before arrival of her father. She also stated that Ishwari had informed her that Respondent-accused Jodh Singh used to ask her to fill glass of liquor. After that he used to ask Ishwari to sleep with him so as to fulfill his sexual lust. When Ishwari refused to sleep with him, then he used to beat Ishwari. She also stated that Ishwari had told her that due to this misbehavior of Respondents, she did not want to go in her in-laws house, however, after persuading her, she used to send Ishwari Devi at her in-laws house. She further stated that at number of times, she was sent to her in-laws house and once her (Laxmi Devi''s) mother-in-law had also gone along with Ishwari to send Ishwari at her in-laws house. She further stated that about one year''s before, she received information on 5lh of the month that Ishwari Devi had died after being burnt. After hearing this, she had gone to the house of in-laws of Ishwari and then she saw that Ishwari Devi was burnt and she had died. Thereafter, she sent information to her husband who was serving at that time in Bombay. After receiving the information, her husband came at the house and informed her that he also received two letters sent by Ishwari in which she has stated that her father in law and husband were harassing her for dowry. Besides this, her husband also told her that he had received one letter sent by Respondent-accused Jodh Singh. She further stated that before the marriage, Ishwari was seen by the Respondents-accused and no promise was made for giving T.V. and V.C.R. by them. This witness was also cross-examined at length by the defence counsel but nothing has come out in her evidence which may create any doubt in her evidence. The evidence of this witness is also reliable and believable.
14. P.W.3 is Smt. Anandi, grandmother of deceased, whose statement was recorded in the court on 23.6.1992. She has stated that Respondents-accused Jodh Singh and Girish Singh were known to her. Deceased Ishwari was her grand daughter who was married about TA years before with Respondent-accused Girish. She further stated that after the marriage, Respondents-accused were demanding T.V. and they also used to call her ''Chipdi'' (having ugly face) and also used to commit Marpit with her. When the Respondents used to commit Marpitwith Ishwari, then she used to come back at her parental house, however she (Smt. Anandi) used to send her back after persuading her. She further stated that she had also gone to send Ishwari at her in-laws house. She further stated that once when she had gone along with Ishwari at her in-laws house, then the Respondent-Jodh Singh had caused injuries on the breasts of Ishwari and when she (Smt. Anandi) asked the reason for doing so, then the Respondent-Jodh Singh also jerked her hand. Then in the night, she came back to her house. She further stated that whenever Ishwari came to her parental house, then she had informed her mother and sister that her father-in-law Jodh Singh used to take liquor and also used to ask her to sleep with him to fulfill his sexual lust. On her refusal, she was subjected to physical cruelty by the Respondent-Jodh Singh and he also used to demand T.V. She further stated that father of Ishwari was in Bombay and in the house, she was living along with her daughter in law and children. The Respondents used to threat Ishwari to kill her if she would not come with the Television. This witness was also cross-examined at length by the defence counsel but nothing has come out in her evidence which may create any doubt in her evidence. The evidence of this witness is also reliable and believable.
15. P.W.4 is Ganesh Singh, father of deceased, whose statement was recorded on 23.6.1992 in the court. He has stated that his daughter Ishwari was married to Respondent-Girish about 2/2 years before and his daughter was seen before the marriage by Respondent-accused Jodh Singh. According to his will, he gave dowry viz. 2 Tolas of Golden Guloband, 1/2 Tola of golden Karanphool, golden nose pin, silver anklet and Ponchi, Radio, Watch etc. The Respondents-accused had demanded T.V. and V.C.R., however he asked them that as per his will and within his limits, he has given what he could give. After 5-6 days of marriage, when Respondent-accused Girish and daughter Ishwari Devi came to see off him, then Respondent-accused Girish asked him that in the dowry, T.V. and V.C.R. was not given. Then he told Respondent-accused Girish that he has given the dowry as per his status. On that, Respondent-accused Girish stated that nose of his daughter is flat (CHAPTI). Thereafter, he went to Bombay on duty. For five months, the behavior of Respondent was normal with Ishwari but thereafter he started misbehaving with her. His daughter Ishwari wrote two letters to him in which she had written about the demand of T.V. and V.C.R. by the Respondents- accused and also written that they also abused her. Thereafter, he wrote a letter to his mother inside the envelope in the name of Kishore Singh i.e. Ex. Ka-1 and the envelope in which the said letter was sent is Ex. Ka-2. He further stated that Respondent-accused Jodh Singh has written him an inland letter, i.e. Ex. Ka-3. (The said letter was filed in the court by this witness at the time of recording of his statement) Thereafter, he received the information from his house about the death of his daughter on which he came to his house. After coming to his house, he came to know about the whole incident. Then he came to know that Respondent-accused Jodh Singh after taking the liquor was trying to commit rape with Ishwari and also used to harass her for T.V. and V.C.R., due to which his daughter committed suicide. He also stated that the letters which were written to him by her daughters were misplaced due to shifting of house. This witness was also cross-examined at length by the defence counsel but nothing has come out in his evidence which may create any doubt in his evidence. The evidence of this witness is also reliable and believable.
16. P.W.5 is Yasodh Singh, whose statement was recorded in the court on 3.7.1992. He has stated that Respondents-accused Jodh Singh and Girish Singh were known to him and deceased Ishwari Devi was also known to her, who was married to Respondent-accused Girish about 214 years before. For 5-6 months, the behavior of Respondents was normal with Ishwari but thereafter both of the Respondents started harassing Ishwari Devi by demanding T.V. and V.C.R. in dowry. Due to this reason, Ishwari used to come at her parental house and also used to narrate the entire incident to her mother. Ishwari also informed him about the demanding of dowry by Respondents. Ishwari also informed her mother that Respondent-accused Jodh Singh after being intoxicated, used to ask Ishwari to sleep with him and also demanding T.V. and V.C.R. and also calls him ''Chapti'' (having ugly face). He also stated that Ishwari was his niece in relation. On 5.6.1991 at about 2:30 P.M., he received information about the death of Ishwari. Somebody had informed him that Ishwari is ill and on suspicion, when he went there, then they found Ishwari to be dead after burning. Thereafter he came at Lohaghat and gave the report to S.D.M., i.e. Ex. Ka-4. Later on, Patwari and Kanungo went for investigation. This witness was also cross-examined at length by the defence counsel but nothing has come out in his evidence which may create any doubt in his evidence. The evidence of this witness is also reliable and believable.
17. P.W.6 is Ramesh Chand Punetha, Patwari/I.O. of the case, who has stated that in June, 1991 he was posted as Patwari Dayartoli. Village Pradhan Moti Singh had given the written report of this incident on 5.6.1991 at 5:00 P.M., i.e. Ex. Ka-5. He further stated that Moti Singh Mehta is the real elder brother of Jodh Singh. After receiving this report, he went on the place of occurrence on the same night. Due to darkness and non-availability of light, the proceedings could not be completed in the night. On the place of occurrence, he found burnt dead body of Ishwari. Next day i.e. on 6.6.1991, he prepared the inquest report, i.e. Ex. Ka-6. Photo Lash, Chalan Lash and specimen of seal were also prepared by him i.e. Ex. Ka-7, Ex. Ka-8 and Ex. Ka-9 respectively. The dead body was sealed on the spot and was sent for post-mortem. He also proved the Fard of recovery i.e. Ex. Ka.10 to Ex. Ka-13, the details of those Fards have also been mentioned in para 3 of this judgment. He also inspected the place of occurrence and prepared the site plan, i.e. Ex. Ka-14.
18. P.W.7 is Ambi Ram, Kanungo/IO of the case, who has stated that he was posted as Kanungo Barakot on 5.6.1991. On that day, he received the report Ex. Ka-4 on the basis of which he prepared Chik FIR, i.e. Ex. Ka.15. He along with NaibTehsildar went to the place of occurrence where the investigation was being done by Patwari Daryatoli. Moti Singh had already given the report to the Patwari, i.e. Ex. Ka-5. During the course of investigation, he recorded the statements of witnesses and Smt. Laxmi Devi (P.W.2) has produced the letter Ex. Ka-1 which was taken by him into possession. Respondent-accused Jodh Singh was arrested by him on 16.6.1991 and Respondent-accused Girish Singh was arrested by him on 19.6.1991. He also received the proceedings conducted by Patwari (P.W.6 Ramesh Chand Punetha). Thereafter, he prayed for further investigation of the case to be carried out by Naib Tehsildar and his prayer was accepted.
19. RW.8 is Shyamu Ram, Naib Tehsildar who has stated that he is the Naib Tehsildar and the Kanungo Cirle Barakot, Valso and Dayartoli comes in his area. He took the investigation of this case on 30.7.1991. Beforehim, the investigation was conducted byAmbi Ram, Kanungo. He also inquired about the matter from the witnesses and on the same day i.e. on 30.7.1991, he filed the charge sheet against the Respondents-accused i.e. Ex. Ka-16.
20. After that the statements of the Respondents-accused were recorded u/s 313 Code of Criminal Procedure The oral and documentary evidence was put to each of the accused in question from. Each of the accused-Respondents denied the allegations made against him and stated that he has been falsely implicated due to enmity. They did not produce any oral evidence in their defence. However, in documentary evidence they have produced two letters Ex. Kha-1 and Ex. Kha-2 written by Ganesh Singh, father of deceased to his daughter Ishwari Devi (deceased). They have also fiied some relevant lines of statement of witness Km. Parvatias Ex. Kha.3to Ex. Kha-5; some relevant lines of statement of witness Smt. Laxmi Devi as Ex. Kha-6 and Ex. Kha-7; some lines of statement of Anandi Devi as Ex. Kha-3 and some lines of statement of Jasod Singh (P.W.5)as Ex. Kha-9 recorded u/s 161 Code of Criminal Procedure during investigation by the I.O.
21. Sri M.A. Khan, learned Brief Holder for the State has submitted that on the basis of the evidence as discussed above, the prosecution has proved its case against the Respondents-accused u/s 304-B read with Section 34 IPC. I find force in the argument advanced by learned Brief Holder. Before further discussion, it is pertinent to mention Section 304-B of IPC, which reads as under:
(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 years other 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 extended to imprisonment for life.]
Section 2 of the Dowry Prohibition Act, 1961 is also relevant to mention here which provides definition of Dowry, which is reproduced as under:
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 parent 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 II- The expression "valuable security" has the same meaning as in Section 30 of the Indian Penal Code (45 of 1860).
Section 113-B of Indian Evidence Act, 1872 is also relevant to mention here which also reads as under:
[113-B. Presumption as to dowry death- 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.
Explanation - For the purposes of this section "dowry death", shall have the same meaning as in Section 304-B of the Indian Penal Code (45 of 1860).]
''Cruelty'' has been defined in Section 498-A of IPC, which is also reproduced as under:
498-A. Husband or relative of husband of a woman subjecting her to cruelty-
Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine."
Explanation-For the purpose of this section, "cruelty"means-
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
22. As per the evidence discussed above, in the evidence of P.W.1 Parvati Devi, sister of deceased, P.W.2 Smt. Laxmi Devi, mother of deceased, P.W.3 Smt. Anandi Devi, grandmother of deceased, P.W.4 Ganesh Singh, father of deceased and P.W.5 Yasodh Singh, uncle of deceased-Ishwari Devi, it is proved that on 5.6.1991, Ishwari Devi has died due to burn injuries inside the house of Respondents where she was living along with her husband-Girish Singh and father in law-Jodh Singh. Deceased Ishwari Devi was married to Respondent-accused Girish Singh one and half year before the said incident. Just before her death and after 5-6 months of her marriage, Respondents-accused Girish Singh and Jodh Singh harassed the deceased Ishwari Devi for getting T.V. and V.C.R. in dowry and by non-fulfilling the demand of dowry, they were continuously beating her. Respondent-Jodh Singh also harassed her by saying her to provide him liquor in the glass and after taking liquor in the state of intoxication, he was asking her to sleep with him. On her refusal, she was subjected to mental cruelly. P.W.4 Ganesh Singh has specifically stated that after coming back from Mumbai, he came to know that Respondent-accused Jodh Singh after taking the liquor was trying to commit rape with Ishwari and also used to harass her for T.V. and V.C.R., due to which his daughter committed suicide. Thus, from the evidences of P.W.1 Parvati Devi, P.W.2 Smt. Laxmi Devi, P.W.3 Smt. Anandi Devi, P.W.4 Ganesh Singh, and P.W.5 Yasodh Singh, it is proved beyond reasonable doubt by the prosecution that Ishwari Devi was harassed for the demand of T.V. and V.C.R. in down,/ by the Respondents after 5-6 months of marriage and they were continuously making demand of dowryjust before her death. Due to non-fulfillment of this demand, Respondents-accused have also beaten her number of times and even Respondent-Jodh Singh, who is happened to be the father in law of deceased Ishwari Devi, was asking Ishwari Devi to sleep with him after taking the liquor. After this harassment from the side of Respondents for the demand of dowryjust before her death after 5-6 months of marriage, deceased Ishwari Devi has committed suicide by burning herself inside the house of Respondents where she was living along with the Respondents. This fact is further corroborated from the post-mortem report Ex. Ka-17 as well as from the medical evidence of P. W.9 Dr. P.K. Kamataka and also from the recovery of items which were shown in the recovery Fards from the place of occurrence viz. Exs. Ka-10 to Ex. Ka-13. Vide Fard Ex. Ka-10, the I.O. recovered (1) empty bottle of kerosene oil (2) burnt plastic gallon (3) a wooden cudgel length 2 fts. (4) burnt pieces of clothes-quilt, carpet, mattress, Niwar, Dhoti, pant etc. (5) a pair of half-burnt sleepers (6) hollow side of football pump and (7) ashes of burnt clothes. Vide Fard Ex. Ka-11, the I.O. recovered Rof/and vegetables kept by deceased as well as the vomit of deceased from the place of occurrence. Vide Fard Ex. Ka.12, the I.O. recovered the jewelery of the deceased Ishwari Devi viz. (1) golden Karanphool weighing half Tola (2) golden nose ring weighing 3 Ratti, (3) 2 nickel Bichuwas, (4) 2 anklets of nickel and (5) broken Chateo and after sealing them, Fard was also prepared, i.e. Ex. Ka-12. Vide Fard Ex. Ka-13, the I.O. recovered the Dhoti which was wrapped on the dead body of deceased Ishwari Devi after the post-mortem. Therefore, in view of the aforesaid discussion, it is proved that deceased Ishwari Devi died an unnatural death within 11/2 years of her marriage in the house of Respondents where she was residing along with her husband-Girish Singh and father in law-Jodh Singh. Deceased Ishwari Devi has died due to the burn injuries and her body was found to be 100% burnt by the Medical Officer P.W.9 Dr. P.K. Karnatak. As such, it has been proved by the prosecution beyond reasonable doubt that the deceased was subjected to mental cruelty by the Respondents for the demand of T.V. and V.C.R. in dowry and due to non-fulfillment of this demand and due to the harassment and Marpit by the Respondents, Ishwari Devi committed suicide by burning herself in the house of her husband. Hence, in view of the above-said facts and circumstances of the case, offence punishable u/s 304-B/34 of IPC is fully made out against the Respondents beyond reasonable doubt and learned Sessions Judge has erred in law by acquitting the Respondents'' u/s 304-B read with Section 34 IPC.
23. Apart from above, the learned Sessions Judge has further erred in law by holding that the oral evidence is not supported by the documentary evidence. From a perusal of Section 113-B of Indian Evidence Act, it is ample clear that 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. In the case in hand, availability of documentary evidence on the basis of above-discussed facts and circumstances could not be possible and according to the circumstances and as per law, the documentary evidence is not essential to prove the case against the accused.
24. As per the evidence discussed above, the trial court has erred in law in arriving at the conclusion that the cruelty to Smt. Ishwari Devi by the Respondents-accused is not proved. The trial court has given this finding only on the basis of presumption that the deceased was a lady of loose character and she was issueless and hence she committed suicide. There is no evidence on record so as to prove the finding recorded by the trial court. Even otherwise, the marriage took place only 11/z year before between the parties before the said incident and the findings of trial court are without any evidence are solely based on the presumption.
25. Besides this, the trial court has further erred by recording the fact in its judgment that after beating, the victim Smt. Ishwari Devi ran away to her father''s house where she committed suicide by burning herself. From the evidence as discussed above, it is ample clear that the deceased Smt. Ishwari Devi has died by committing suicide in the house of Respondents. Thus, the facts mentioned in the judgment of trial court are totally against the record and the same are based purely on the basis of conjectures and surmises.
26. Sri B.S. Adhikari, learned Counsel for the Respondents has argued that letters Ex. Ka-1 does not show any contents of cruelty. Letter Ex. Ka-1 is the letter written by Ganesh Singh to his mother and it was sent in the envelope in the name of Kishori Singh, who is the son of Ganesh Singh. Ex. Ka-3 is the letter written by Jodh Singh (Respondent) to the Ganesh Singh (P.W.4), father of deceased. The actual letters, in which the cruelty caused by Respondents is mentioned, were written by deceased Ishwari Devi to her father Ganesh Singh. Those letters could not be produced by the trial court due to the reason as stated by P.W.4 Ganesh Singh in para 7 of his statement that letters written to him by Smt. Ishwari Devi were misplaced due to shifting of house. Hence, the averments made by Ishwari Devi (deceased) of cruelty caused by Respondents were mentioned in the letters sent by her to her father and if the letter Ex. Ka-1 written by Ganesh Singh to his mother and Ex. Ka-2 letter sent by Jodh Singh to Ganesh Singh do not show any cruelty, is not helpful to the defence arguments and on the basis of these letters, the entire prosecution story cannot be discarded because these letters were not written by the deceased.
27. Learned Counsel for the Respondents further referred to Exs. Kha-3 to Ex. Kha-5, i.e. the relevant extract of statement of K n. Parvati (P.W.I) recorded u/s 161 Code of Criminal Procedure by the I.O. and submitted that the facts mentioned in this statement have been denied by this witness in her statement recorded before the trial court. He further submitted that it is an improvement in the statement before the trial court. For the reply, this witness has stated in para 9 and 10 that she has not given these statements to the I.O. and how the I.O. has written this fact in her statement, she could not say anything about it. From a reading of the statement recorded by the trial court, it is clear from the statement that the statement referred by defence counsel is not given by this witness to the I.O. and moreover she is a girl of 13 years at the time of incident and the statement recorded in the trial court inspires confidence and her statement is reliable, believable, natural and trustworthy. So only on this very ground, the statement of P. W.1 Km. Parvati cannot be discarded.
28. Learned Counsel for the Respondents further referred to Ex. Kha-6 and Ex. Kha-7, i.e. extract of statement, of Km. Laxmi Devi (P.W.2) recorded u/s 161 Code of Criminal Procedure by the Investigating Officer and submitted that the facts mentioned in this statement have been denied by this witness in her statement recorded before the trial court. He further submitted that it is an improvement in the statement before the trial court. For the reply, this witness has stated in para 7 of her evidence that she had not given the statement that her daughter had not informed her about the harassment or Marpit or giving less dowry. She also denied of having any doubt for killing deceased Ishwari Devi for demand of dowry after her harassment. From a reading of the statement recorded by the trial court, it is clear from the statement that the statement referred by defence counsel is not given by this witness to the I.O. and moreover the statement recorded in the trial court inspires confidence and her statement is reliable, believable, natural and trustworthy. So only on this very ground, the statement of P.W.2 Smt. Laxmi Devi cannot be discarded.
29. Likewise, learned Counsel for the Respondents referred to Ex. Kha-8 i.e. extract of statement of P.W.3 Anandi Devi recorded u/s 161 Code of Criminal Procedure by the I.O. and submitted that the facts mentioned in this statement have also been denied by this witness in her statement recorded before the trial court. He further submitted that it is an improvement in the statement of P.W.3 Anandi Devi before the trial court. For the reply, this witness has stated in para 12 of her evidence that she had not given the statement mentioned in Ex. Kha-8 to the Patwari. She also stated the she did not know as to how the Patwari has written these lines. The statement recorded in the trial court inspires confidence and her statement is reliable, believable, natural and trustworthy. So only on this very ground, the statement of P.W.3 Smt. Anandi Devi cannot be discarded.
30. Similarly, learned Counsel for the Respondents referred to Ex. Kha-9 i.e. extract of statement of P.W.5 Yasodh Singh recorded u/s 161 Code of Criminal Procedure by the I.O. and submitted that the facts mentioned in this statement have also been denied by this witness in his statement recorded before the trial court. For the reply, this witness has stated in para 8 of his evidence that he had not given the statement mentioned in Ex. Kha-9 to the Kanungo. He also stated that if these facts have been written, they have wrongly been written. The statement recorded in the trial court inspires confidence and his statement is reliable, believable, natural and trustworthy. So only on this very ground, the statement of P.W.5 Yasodh Singh also cannot be discarded.
31. Therefore, in view of the above-said discussion, the learned Sessions Judge was not correct and justified for acquitting the Respondents for the offence punishable u/s 304-B read with Section 34 IPC. As such, in view of the aforesaid discussion, the prosecution has been able to prove its case against the Respondents-accused Girish Singh and Jodh Singh for the offence punishable u/s 304-B read with Section 34 IPC and they are accordingly convicted under the above-said sections.
32. However, the offence punishable u/s 306 read with Section 34 IPC is not made out against the Respondents and the judgment and order passed by the trial court to this extent is confirmed.
SENTENCE
33. Heard learned Counsel for the parties on the sentence. Sri 6.S. Adhikarl, learned Counsel for Respondents-accused argued that Respondent-accused Jodh Singh is old man aged about 72 years and Respondent-accused Girish Singh is aged about 40 years and as the 17 years have passed of the said incident and Respondent-accused Girish has solemnized another marriage and is living with his second wife and children, so a lenient view may with regard to sentence be taken. After considering all the facts and circumstances of the case and hearing the arguments of counsel for the Respondents, I am of the view that 7 year''s R. I. to each of the Respondents-accused for the offence punishable u/s 304-B of IPC read with Section 34 IPC, would meet the ends of justice.
34. For the reasons recorded above, the appeal preferred by the State is allowed. The judgment and order dated 27.7.1993 passed by Sessions Judge, Pithoragarh in ST. No. 33/1991, State v. Girish Singh and another, is hereby set aside. The Respondents-accused Girish Singh and Jodh Singh are hereby convicted u/s 304-B IPC read with Section 34 IPC and each of them is sentenced to seven years'' R.I. The period already undergone by the Respondents-accused during the pendency of trial shall be adjusted. Let the Respondents-accused Girish Singh and Jodh Singh be taken into custody forthwith in order to serve out the sentence as awarded against each of them.
35. Let a copy of this judgment be sent to the trial court concerned for compliance of the order forth with.
