Uttarakhand High Court
Sachin And Others ... vs State Of Uttarakhand on 11 October, 2022
Author: Sanjaya Kumar Mishra
Bench: Sanjaya Kumar Mishra, Alok Kumar Verma
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Reserved on :- 28.07.2022
Delivered on :- 11.10.2022
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Criminal Appeal No. 155 of 2014
Sachin and Others ..................Appellants
-Versus-
State of Uttarakhand ....................Respondent
With
Criminal Appeal No. 156 of 2014
Vinod and another ..................Appellants
-Versus-
State of Uttarakhand ....................Respondent
Present: Mrs. Pushpa Joshi, learned Senior Counsel assisted by Ms. Chetna Latwal, learned
counsel for the appellants.
Mr. Amit Bhatt, learned Deputy Advocate General for the State of Uttarakhand.
Coram:-
Sri Sanjaya Kumar Mishra, J.
Sri Alok Kumar Verma, J.
Upon hearing the learned counsel for the parties, the Court made the following order: (Per: Sri S.K. Mishra, J.)
1. The appellants, in these appeals, have assailed their conviction and sentence recorded by the learned third Additional Sessions Judge, Haridwar in Session Trial 2 Nos. 81 and 164 of 2007 vide judgment and order dated 31.03.2014 and appellants - Sachin, Ajeet and Vinod were directed to undergo imprisonment for life under Sections 304-B of the Penal Code whereas, appellants - Omwati and Mantlesh were directed to undergo rigorous imprisonment for 10 years under Sections 304-B of the Penal Code; all the appellants were sentenced to undergo rigorous imprisonment for 03 years and to pay fine of Rs. 20,000/- each and in default to undergo additional rigorous imprisonment of six months under Section 201 of the Penal Code with the further stipulation that all the sentences shall run concurrently.
2. The appellants - Sachin, Ajeet Singh (father of Sachin) and Smt. Omwati were charged with the offence under Section 304-B and 201 of the Penal Code interalia on the allegation that on 06.01.2007, PW-1 Mohit Kumar lodged an F.I.R. before the S.H.O. Manglaur, stating that his sister - deceased's marriage was solemnized on 23.02.2006 with Sachin S/o Ajeet Singh, R/o Village Tikola, P.S. Manglaur, District - Haridwar. He further stated that for solemnization of her marriage, they have expended the amount of Rs. 5 lakhs and gave dowry in 3 the form of colour TV, washing machine, double-bed, sofa, cloths, utensils and ornaments etc. Further, the case of the prosecution is that even though, the deceased's father has given dowry to the husband of the deceased, they were not satisfied with it. Soon after the marriage, they started demanding a car and started torturing her both mentally and physically. On different occasions, when she was visiting her maternal house, she was complaining about their behavior and demands for more dowry. She was assured by her parents that after the festival of Teej, they were tried to satisfy the demand but they were not satisfy with the promises and started ill-treating the deceased even more. About 03 months prior to her death, Sachin, his father and his uncle left the deceased in the maternal house when she was pregnant. But when they made them understand about 20 days prior to the occurrence they took back the deceased with promise that they will not demand any motor car and shall not also ill-treat the deceased.
On 06.01.2007, one Pritam Singh S/o Anup Singh gave intimation that Amita has been murdered by her husband - Sachin, father-in-law - Ajeet Singh and 4 uncle - Vinod and hence cremated her body. The informant further stated in the F.I.R. that the accused persons did not intimate about the death of the deceased before cremation. He has further stated that because of a hope of solving the problem, they have not given report of earlier incidents of demand of dowry and submissions of such report, a criminal case was registered and the Investigating Officer took up investigation of this case and in course of investigation, he examined the complainant and the other witnesses visited the spot and upon completion of investigation submitted charge-sheet under Section 304-B and 201 of the Penal Code. No charge-sheet was submitted under Section 498-A of the Penal Code or under Section 4 of the Dowry Prohibition Act, 1964. The defence took the plea of simple denial. In order to prove its case, the prosecution examined five witnesses; PW1 is Mohit Kumar - complainant in this case, PW2 - Bhim Singh, PW3 - Smt. Kaushal @ Kaushalya Devi are the parents of the deceased, PW4 - Head Constable, Pankaj Kumar and PW5 - T.D. Bela is the Investigating Officer of the case.
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3. The defence, on the other hand, examined 8 witnesses in an attempt to show that the deceased was suffering from certain ailments because of her pregnancy and that the death of the deceased was natural. The evidences of the prosecution witnesses show while being examined PW 1 - Mohit Kumar - complainant has reiterated the stand taken in the F.I.R. and stated that his sister was being tortured for demand of dowry. Regarding the demand for dowry and the settlement 20 days prior to the occurrence, the witness has stated that about 20 days prior to the death of the deceased - Amita, the appellant - Sachin - husband of the deceased, father-in-law - Ajeet Singh and brother of Ajeet Singh's - Vinod were called to their Village - Jaankheda, some gentlemen of the said village were also called. It is further case of the prosecution that those village gentlemen or the village, where her maternal home situates, made these appellants understand not to demand further dowry as the complainant and his father has no money with them. They were given assurance on behalf of the society, and therefore, they understood the situation and took away deceased from her maternal house with a promise that they will not ill-treat or torture the deceased - Amita. 6
4. However, it is further borne out from the record that none of the said villagers has been named anywhere in the statement made by these witnesses. None of the witnesses has also been examined on behalf of the prosecution.
5. The witness PW1 would further states that on 06.01.2006 about 9:30 AM, Pritam S/o Anup Singh intimated about the murder of the deceased and her cremation then the witness along with 20 to 25 persons of his village went to the village of the accused persons. Along with him, Raj Singh Seva Ram, Ranveer Singh and his father also came to the village but they could not find Amita or her dead body. From the villagers, they could not come to know that Sachin, his father and mother- Omwati and uncle Vinod etc. have committed murder of the deceased and cremated her body. But strangely enough, none of the witnesses belonging to the village of the accused persons has not been examined even Pritam Singh has not been examined in this case, who had given this information to the informant. The fact that from the villagers, they could know about the murder of the deceased and her 7 cremation has also not been reflected in the F.I.R. Though, the single act of not reflecting in the F.I.R. that there was no cremation. They came to know about murder and cremation from the villagers would have an impact on the prosecution case but a cumulative effect of all these aspects like not examining a single witness who was supposed to be present as village gentlemen or members of the Panchayat to settle the dispute, non- examination of any of the villagers, who proceeded to the village, where the occurrence took place along with the informant. Non-examination of any of the villagers of the village of the appellants, who might have direct knowledge about the occurrence, raises a considerable and substantial doubt regarding the veracity of the prosecution case.
6. It may be noted here that the evidence of PW-2 and 3 is almost similar to that of PW-1. They don't have any direct knowledge about the alleged murder committed by the appellants. In fact, charge-sheet has not been filed for the offence under Section 302 of the Penal Code but it has only been filed for the offence under Section 304-B and 201 of the Penal Code. Strangely enough, the Investigating Officer acted in a sloppy 8 manner in not including the offence under Section 498- A of the Penal Code and Section 4 of the Dowry Prohibition Act, 1964. It is the case of the prosecution that there was a torture for demand of dowry for the aforesaid offences would have also been added in the charge-sheet. Moreover, only 11 witnesses have been examined in this case. Five of them have been examined. There appears to be no reason why the other witnesses were discharged and were not examined.
7. It is also not the case of the prosecution that the dead body of the deceased was recovered. Definitely, the dead body was cremated before lodging of the F.I.R. The Investigating Officer has also not made any attempt to recover any remnants of the body of the deceased by trying to find out, if any bones were left in the ashes nor he has collected ashes from the ground, where the deceased was buried for forensic examination. The investigation of the case is definitely sloppy but for that reason, the prosecution case cannot be thrown away if it is otherwise proved.
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8. In a criminal case for establishing the offence of dowry death as punishable under Section 304-B of the Penal Code, the following ingredients have to be satisfied:-
i. That the death of the deceased took place within 07 years of marriage.
ii. That death of the deceased was unnatural, it may be due to burn injuries, may be homicide or suicide.
iii. There is soon before her death, the deceased was tortured for the purpose of demand for dowry. As far as, the first ingredient is concerned, it is not disputed that the death of the deceased was within 07 years of her marriage with accused - Sachin.
9. However, coming to the question of demand for dowry except PW1, 2 and 3, who happens to be the brother, father and mother of the deceased. Nobody else has been examined to prove the aspect of demand of dowry.
10. It is also not disputed at this stage that about 20 days prior to the occurrence, there was a meeting of village gentlemen in the house of the father of the deceased. It was a kind of Panchayat attended by village gentlemen 10 to settle the dispute and as it is the prosecution case that their dispute was settled and the appellants especially, the appellants - Sachin and his father and others assured that they will not torture the deceased any further. So, soon before 20 days, the incident took place in the house of the informant is not in fact a torture for demand rather it is a conciliation between the parties. No other specific evidence is coming forth from the side of the prosecution giving the details of torture meted out to the deceased. In a very general and ominous stamp, they have stated that she was complaining that the deceased was being tortured for demand of dowry especially a car.
11. Another aspect is that the prosecution must establish that the death of the deceased was unnatural. In this case, the dead body of the deceased was not found as it was allegedly cremated by the appellants but no witness of the village to show that actually the death of the deceased was not due to natural causes but because of unnatural causes.
12. The Hon'ble Supreme Court in the case of "Chhotan Sao Vs. State of Bihar, (2014) 4 SCC 54, has held that 11 even that when all ingredients accept the cause of death has been proved by the prosecution, then also the prosecution cannot be said to have succeeded. In that particular case, the deceased was allegedly poisoned. There was no injury on her body and non- finding of any poison on forensic examination, the Hon'ble Supreme Court held that the offence under Section 304-B of the Penal Code is not made out.
13. In the case in hand as stated earlier, the post-mortem of the deceased was not possible because of the very nature allegations made by the prosecution. But at the same time, the Investigating Agency should have collected the ashes and bones or any other remnants of the body from the cremation site. In fact, he has not made any attempt to proceed in that light. All the more, no witness has been examined to prove then actually the dead body of the deceased was cremated by the appellants. The defence has made an attempt to show that the deceased was suffering from some kind of ailment and was being treated. It is not disputed at this stage by any of the parties that the deceased was pregnant at that time and that she was being given usual medicine by the village level health workers. The 12 witnesses examined on this behalf by the defence have been put to a surgical examination by the learned Trial Judge to hold that they are not deposing the truth and therefore, they cannot be believed.
14. It is settled principle of law that in Indian criminal justice system, the prosecution must prove its case beyond reasonable doubt. The case of the prosecution stands or falls on his own legs and it cannot take the weakness of the defences. The duty of the prosecution is to establish all the three ingredients that is required to attract under Section 304-B of the Penal Code and then it shall be presumed under Section 113-A of the Indian Evidence Act, 1872. The offence has been committed by the accused persons. So, the burden to prove the initial ingredients required to draw the presumption is on the prosecution. The prosecution must establish the death of the deceased was otherwise then for natural causes. In this case, nothing has been shown to the Court to come to the conclusion that actually the deceased suffered in unnatural death due to burn injuries or any other such reasons or that she committed suicide. There is absolutely no evidence that she was murdered. DW5 - Dr. Chandra Shekhar 13 Sharma has stated as a witness for the defence that he is acquainted with the accused persons. On 03.01.2007 at about 08 - 09:00 PM in the night, they brought the deceased Amita. He examined Amita, he could not find any sign of life in her. At that time, the father of the deceased was present. He could know it from the others though, he was not acquainted with Ajeet Singh.
15. The learned Trial Judge has held that because DW-5 did not have any prior acquaintance with the father of Amita - deceased, he cannot be believed. The very case of the prosecution is that deceased was murdered in the night, one day prior to 06.01.2007 and the dead body was cremated immediately. Some of the witnesses have stated that the father of Amita was called, he came and saw the deceased and then went back to his village. He came back on the next day for cremation. However, this aspect of the case has been disbelieved by the learned Trial Judge on the ground that such conduct by a witness is not natural. He has specifically observed that a person who comes to his daughter's house and finds her to be dead along with the child she was carrying would not go back to his house and come back on the next day for cremation. While settled by a 14 catena of judgment that human behavior cannot be predicted in a perfect manner only on the basis of a particular behavior of a witness the case presented by the defence cannot be disbelieved.
16. All these facts could have brought to the light, if any witnesses of the village, where the appellants reside were examined on behalf of the prosecution. However, the prosecution for reasons best known to it withheld all these witnesses and has proceeded to close his case after examining only five witnesses.
17. From the evidence led by the defence it is also borne out that the deceased was having pain in her stomach and was consulted with doctors on different occasions and some doctors have also given her pain killers and other medicines. Their evidence has also been not believed by the learned Trial Judge. In the scheme of appreciation of evidence, the prosecution must prove its case beyond reasonable doubt, if the defence can raise any reasonable doubt regarding any particular aspect of the prosecution case, then the finding should lien in favour of the defence. In this case, not only the prosecution has not proved that the death of the 15 deceased was unnatural by leading cogent evidence like recovery of her bones or ashes for DNA profiling etc., but it has also been shown to be suspicious character on the basis of the evidence of the doctor and other health workers, who have seen Amita during her life time for some kind of pregnancy complications, though, nobody had that expertise to give a definite opinion about the same. Facts remain that prior to death of Amita being treated for severe stomach pain by different doctors. Thus, this Court is of the opinion that as far as the second ingredient is concerned. The chink in the prospection has been established by the defence, which leads the Court to hold that all the ingredients are not established by the prosecution in this case to bring home the charges leveled against them.
18. Thus, in the ultimate analysis, this Court is of the opinion that the learned Trial Judge committed error on record by not examining the prosecution case in a proper prospective and going on in a surgical examination of the defence witnesses' evidence. The prosecution, in this case has not established that the death of the deceased was unnatural in order to attract the offence under Section 304-B of the Penal Code. 16 There could not have been any post-mortem because of the fact that the very case, the prosecution alleges is that the dead body of the deceased was cremated by the appellants. However, no witnesses were examined from the said village to prove that actually her dead body was cremated by the appellants. It was also not established where and when her dead body was cremated. Moreover, no gentlemen of the village of complainant was examined to prove that a promise was stuck between them 20 days prior to the case and finally, DW-5 has stated that father of Amita-deceased was present on 03.01.2007, when he found no sign of life in her, which militates against the very prosecution case that when the deceased died before her cremation and her father and others were not called to the spot of the cremation ground. Moreover, the witness Pritam has not been examined, who has also created a reasonable doubt. In that view of the matter, this Court is of the opinion that the prosecution has failed to prove its case beyond all reasonable doubt, in the sense that a reasonable doubt arises regarding the demand of dowry soon before the death of the deceased and the nature of death which it is stated to be unnatural (murder) by the prosecution.
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19. In other words, this Court is of the opinion that there is a reasonable doubt regarding the complicity of these appellants in the commission of the crime allegedly committed by them. Hence, this Court is of the opinion that the appellants should be given benefit of doubt, especially when the learned Session Judge has not accepted the case of the prosecution, and their conviction should be set- aside.
20. In that view of the matter, the appeal is allowed, the appellants are acquitted and their conviction under Section 304-B and 201 of the Penal Code as per the judgment and order dated 31.03.02014 passed by the learned Third Additional Sessions Judge, Haridwar is hereby set-aside.
21. The appellants are on bail, they are directed to surrender before the Court of the Addl. Session Judge, Haridwar, in connection with the aforesaid case. They be set at liberty, if not wanted in any other case after execution of bond as envisaged u/S 18 437A of the Code, on such terms and conditions deems just and proper by the said Court.
22. Trial Court Records be sent back.
(Alok Kumar Verma, J.) (Sanjaya Kumar Mishra, J.) 11.10.2022 A/-