Uttarakhand High Court
Madhvanand And Others ........... ... vs State Of Uttarakhand on 24 May, 2022
Author: Ravindra Maithani
Bench: Ravindra Maithani
Reserved
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No. 266 of 2004
Madhvanand and others ........... Appellants
Vs.
State of Uttarakhand ........ Respondent
Present : Ms. Pushpa Joshi, Senior Advocate assisted by Ms. Chetna Latwa,
Advocate for the appellants.
Mr. Lalit Miglani, A.G.A. for the State.
JUDGMENT
Hon'ble Ravindra Maithani, J.
Present appeal is preferred against the judgment and order dated 20.08.2004 passed in Sessions Trial No. 151 of 2002, under Sections 304B, 201 IPC and Section 3/4 of the Dowry Prohibition Act, 1961 ("the Act), by the court of Sessions Judge, Nainital. By the impugned judgment and order, the appellants Devki Devi and Bhagirathi Devi have been convicted under Sections 304B, 201 IPC and Section 3/4 of the Act and have been sentenced as hereunder:-
(i) Section 304B IPC -imprisonment for a period of seven years.2
(ii) Section 201 IPC - imprisonment for a period of two years.
(iii) Section 3/4 of the Act - imprisonment for a period of six months.
2. By the impugned judgment and order, the appellants Madhvanand and Bachi Ram have been convicted under Sections 304B, 201 IPC and Section 3/4 of the Act and have been sentenced as hereunder:-
(i) Section 304B IPC - rigorous imprisonment for a period of ten years.
(ii) Section 201 IPC - rigorous imprisonment for a period of two years.
(iii) Section 3/4 of the Act - imprisonment for a period of six months.
3. The prosecution case, briefly stated, is as follows. The deceased Santoshi Devi and appellant Madhvanand were married on 08.05.1999. Appellant Bachi Ram is the father-in-law of the deceased. Appellant Devki Devi is the mother-in-law of the deceased. The appellant Bhagirathi Devi is the sister-in-law (elder brother's wife of the husband of the deceased). According 3 to the prosecution, after marriage, the appellants demanded dowry. The deceased was pregnant, but she was killed and her body was hanged from a tree so as to show as if it was a case of hanging. This information reached to the family members of the deceased. Her uncle Hari Ram, PW 3, lodged a report on 20.01.2001 at 07:50 p.m. at Police Station Ramnagar, District Nainital. The investigation was carried out. The inquest of the deceased was conducted. Her body was found suspended from a tree. The dead body was in a seated position on the ground. The witnesses of the inquest recorded that it was not a case of hanging. It reflected, as if she was killed and hanged thereafter. The inquest report further records that from the house of the appellants upto the place of incident, there were pieces of broken bangles. The Investigating Officer ("IO") prepared the site plan, Ex. A-4. Postmortem of the dead body was conducted. According to the doctor, the death was caused as a result of asphyxia due to strangulation. After investigation, chargesheet under Sections 304B, 201 IPC and 3/4 of the Act was filed.
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4. On 04.07.2002, charge under Sections 304B, 201 and 3/4 of the Act was framed, to which the appellants denied and claimed trial.
5. In order to prove its case, the prosecution examined as many as eight witnesses i.e. PW 1 Kishori Lal, father of the deceased, PW 2 Harish Chandra, uncle of the deceased, PW 3 Hari Ram, uncle of the deceased, who lodged the report, PW 4 Hayat Ram, PW 5 Kripal Chandra, PW 6 Narayan Singh, the IO, PW 7 Dr. Yashwant Singh Rawat, who conducted the postmortem of the deceased and PW 8 SI Chaman Singh, who initially took the investigation.
6. The appellants were examined under Section 313 of the Code of Criminal Procedure, 1973 ("the Code"). According to the appellants, they have been falsely implicated. The father-in-law of the deceased Bachi Ram, in his examination under Section 313 of the Code has stated that the deceased was mentally not well as she was a patient of epilepsy. In their defence, the appellants examined DW 1 Suresh, DW 2 Badlu Sah and DW 3 Bachi Ram.
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7. During the course of hearing of this appeal, appellant Bachi Ram died and by an order dated 07.12.2019, it has been recorded that the appeal is abated qua the appellant Bachi Ram. The appeal now is pending qua the appellants Madhvanand, Devki Devi and Bhagirathi Devi.
8. Heard learned counsel for the parties and perused the record.
9. Learned Senior Counsel for the appellant would submit that the prosecution has utterly failed to prove the charges against the appellants. They ought to have been acquitted of the charge. But, the court below committed an error in convicting the appellants. She would submit the following points also in her submissions:-
(i) The inquest report records that there were broken bangles in the way from the house of the deceased to the place of occurrence, but the broken bangles were not recovered.
(ii) According to the postmortem report, the death was due to strangulation, but the ligature was not in 'O' shape.
The deceased was in a seated 6 position, which might happen when the branch bends.
(iii) The witnesses, for the first time, told in the court that Rs. 25,000/- and scooter was demanded in the dowry.
During investigation, it was not revealed by the witnesses.
(iv) The statements of the witnesses reveal that the deceased would complain to them that her in-laws would not allow her to rest. She was irritated for this reason. She was a patient of epilepsy.
(v) At the time of marriage, according to PW 1 Kishori Lal, no demand was made. The deceased used to visit her father's house. She was always treated well by the appellants. The deceased was not used to work at her paternal home, and since in her in-laws' house she was doing household chores, it appears that it 7 irritated her. Coupled with the epileptic seizure, she was depressed.
(vi) Had the deceased been killed and suspended from the tree, her knee would not have bend in the manner as is shown in the photographs.
10. On the other hand, learned counsel for the State would submit that it is a case of death by strangulation. The deceased was subjected to cruelty by the appellants for and in connection with the demand of dowry. The branch of tree, from which the deceased was suspended, was at the height of five feet from the ground. The length of the rope was one meter. It is not a case of hanging. The witnesses have stated about the demand of dowry and harassment for that reason. The doctor has also opined that it is a case of strangulation. The death occurred within two years of the marriage. The deceased was thirty-six weeks pregnant. She had no reason to commit suicide. She was killed. The court below rightly convicted and sentenced the appellants. No interference is warranted in this appeal and it deserves to be dismissed. 8
11. PW 1 Kishori Lal is father of the deceased. According to him, the deceased was married on 08.05.1999 with the appellant Madhvanand. This witness gave cash and articles, including jewelry, as per his status, at the time of marriage. But, the appellants were not satisfied with the given dowry and they started harassing the deceased for or in connection with the demand of dowry. According to PW 1 Kishori Lal, the deceased would tell him that the appellants would not allow her to rest even for a minute and would taunt her as to what her father had given to her. They were not happy with the marriage. The deceased would also tell to this witness that since the deceased was the only daughter of her father, the appellants were expecting more dowry. The deceased once visited the house of this witness and told that the appellants are demanding Rs. 25,000/- and a scooter. A Panchayat was also conducted, in which Harish Ram, Param Ram visited the house of the appellants. There also, according to PW 1 Kishori Lal, the appellants demanded dowry. Since deceased was pregnant, this witness thought that after giving birth to a child perhaps the things would be normalized. But, according to PW 1 Kishori Lal, on 20.01.2001, he was told that the deceased has committed suicide. He visited the 9 place of incident. He saw the deceased suspending from a tree. She was in a seated position. Photographs of the dead body were taken. Inquest was prepared, of which this witness was also a witness. He proved the inquest report, Ex. A-1. Some other articles i.e. rope, chappals, etc. of the deceased were also recovered by the police. This witness has proved the memo of it, which is Ex. A-2.
12. PW 2 Harish Chand has also stated about demand of dowry and harassment to the deceased Santoshi Devi. This witness has stated that he had gone along with the father of the deceased to her in-laws' house, where also the demand of dowry was made. He was a member of Panchayat. PW 2 Harish Ram has also stated that after Panchayat, report was not lodged due to fear of strained relations. They all thought that after delivery of the child perhaps the things would improve, but on 20.01.2001, the deceased was found dead. PW 2 Harish Ram has also stated about the posture, photographs, etc. of the deceased.
13. PW 3 Hari Ram is the informant. He is uncle of the deceased. He has supported the statement of PW 1 Kishori Lal, father of the deceased and proved the report, Ex. A-1. According to PW 3 Hari Ram, at the place of 10 occurrence, photographs were taken. He has also stated that from the house of the deceased to the place of occurrence, pieces of broken bangles were also found.
14. PW 4 Hayat Ram has given an eye-witness account. According to him, on 20.01.2001 at 07:30 p.m., when he had gone to fetch the grass, he saw the appellants dragging the deceased, armed with weapons and he also saw that the appellants suspended the deceased from a tree and killed her.
15. At the very outset, this Court is of the view that the statement of PW 4 Hayat Ram does not inspire confidence. According to him, he had seen the appellants killing the deceased, but he did not raise any alarm. He did not try to rescue her. According to him, he came back to the village and informed the villagers about the incident. He also tells that he did not know the appellants prior to the incident. If it is so, how could he say that the appellants were dragging the deceased? Whatever PW 4 Hayat Ram has stated is not, in fact, the case of the prosecution. The prosecution case is not based on direct evidence. In his cross-examination PW 4 Hayat Ram would submit that he did not inform PW 1 Kishori Lal about the incident because he was not aware that the 11 deceased was his daughter. At page 5, this witness would tell that when the dead body was being taken out from the tree, he had told it to PW 1 Kishori Lal as to how she was killed. But, PW 1 Kishori Lal has not stated about it. PW 1 Kishori Lal has not stated that based on the information given by PW 4 Hayat Ram, he lodged the FIR.
16. PW 5 Kripal Chand has also corroborated the statement of PW 1 Kishori Lal and other witnesses with regard to demand of dowry and harassment of the deceased. He has also stated about the Panchayat, which was convened in the house of the appellants.
17. PW 6 Narayan Singh conducted the investigation. He prepared the site plan, Ex. A-4 and submitted the chargesheet against the appellants.
18. PW 7 Dr. Yashpal Singh conducted the postmortem of the deceased. According to him, following ante mortem injuries were found on the person of the deceased:-
"Ligature mark present over neck at the level of thyroid cartilage about whole circumference accept two inches space at right mastoid region. Size 1.5 cm x whole 12 circumference. Base is soft. Reddish in colour. Ligature mark well defined. Contusion below the mark."
19. The deceased was thirty-six weeks pregnant. According to the postmortem report, the death was as a result of asphyxia due to strangulation.
20. PW 8 SI Chaman Singh had prepared inquest and also prepared other police forms for the purposes of postmortem.
21. DW 1 Suresh has stated that the deceased was not well. She had seizure at the time of marriage. He has done some exorcism ("Jhad Phoonk").
22. DW 2 Badlu Sah has also told that he did some exorcism as the deceased was of unstable mind. She had seizures.
23. DW 3 Bachi Ram was, in fact, one of the appellants. He is father-in-law of the deceased. He has stated that the deceased had epilepsy. She had seizures. She would dance, cry and run everywhere. Even on the date of marriage, she had a seizure. They got her treated by some exorcism. She was also shown 13 to a Psychiatric. Dr. V.N. Rajpal treated her. He has stated about a medical prescription, Ex. 1. According to this witness, dowry was not demanded.
24. The appellants have been convicted under Sections 304B, 201 IPC and Section 3/4 of the Act and have been sentenced, as stated hereinbefore.
25. A bare perusal of Section 304B IPC makes it clear that in order to attract the rigors of Section 304B IPC, the following has to be established and proved by the prosecution:-
(i) Death of a woman due to burn and bodily injury or otherwise than under normal circumstances.
(ii) Such death occurred within seven years of her marriage.
(iii) Soon before her death, she must have been subjected to cruelty or harassment by husband or any relative of her husband.14
(iv) Such cruelty or harassment should have been for or in connection with the demand of dowry.
26. The deceased was married on 08.05.1999 with the appellant Madhvanand. She died on 20.01.2001. Her death took place within two years of marriage. The deceased did not die of natural death. Her death was other than normal circumstances. This Court would examine the cause of death also.
27. The expression "soon before her death" does not mean "immediately before the death". These words should be given reasonable and practical interpretation. In the case of Uday Chakraborty and others v. State of West Bengal, (2010) 7 SCC 518, the Hon'ble Supreme Court observed "The expression "soon before her death" has to be given its due meaning as the legislature has not specified any time which would be the period prior to death, that would attract the provisions of Section 304-B IPC. The concept of reasonable time would be applicable, which would primarily depend upon the facts of a given case, the conduct of the parties and the impact of cruelty and harassment inflicted upon the deceased in relation to 15 demand of dowry to the cause of unnatural death of the deceased. In our considered view, the marriage itself has not survived even for a period of two years, the entire period would be a relevant factor in determining such an issue."
28. The menace of dowry, in fact, has crippled the society. The relations had gone down to the extent that, in fact, 304B was inserted in IPC in the year 1986. Such death, which occurs in the house of in-laws is very hard to be proved by the prosecution. Therefore, some special provisions were also made in the Indian Evidence Act, 1872 ("the Evidence Act"). Section 113B of the Evidence Act permits the court to presume about death dowry. It reads 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 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.16
Explanation. -- For the purposes of this section, "dowry death" shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860)."
29. In order to attract the provisions of Section 304B IPC, it is not necessarily to be proved by the prosecution that the husband or his relative had killed the deceased. What has to be seen is that the death occurred other than under normal circumstances.
30. In the case of Satbir Singh and another v. State of Haryana, 2021 SCC OnLine 404, the Hon'ble Supreme Court considered the suicidal or homicidal aspect of death and observed that, in fact, death other than normal circumstances includes homicidal or suicidal or accidental death. In paras 24 and 25, the Hon'ble Supreme Court observed as hereunder:-
"24. The second contentious part relating to Section 304-B IPC is that it does not take a pigeonhole approach in categorising death as homicidal or suicidal or accidental, as was done earlier. The reason for such non-categorisation is due to the fact that death occurring "otherwise than under normal circumstances" can, in cases, be homicidal or suicidal or accidental. However, Section 304-B IPC endeavours to also address 17 those situations wherein murders or suicide are masqueraded as accidents.
25. Therefore, if all the other ingredients of Section 304-B IPC are fulfilled, any death whether caused by burns or by bodily injury or occurring otherwise than under normal circumstances shall, as per the legislative mandate, be called a "dowry death" and the woman's husband or his relative "shall be deemed to have caused her death" unless proved otherwise. The section clearly specifies what constitutes the offence of dowry death and also identifies the single offender or multiple offenders who has or have caused the dowry death [refer Maya Devi v. State of Haryana [Maya Devi v. State of Haryana, (2015) 17 SCC 405 :
(2018) 1 SCC (Cri) 768] , Shanti v. State of Haryana [Shanti v. State of Haryana, (1991) 1 SCC 371 : 1991 SCC (Cri) 191]".
31. PW 1 Kishori Lal is father of the deceased. He tells that at the time of marriage, dowry was not demanded. PW 1 Kishori Lal was asked about the timing of demand of dowry. In the beginning line of his cross-examination, he would submit that at the time of marriage, no specific demand for dowry was made. But, 18 according to him, after marriage the demand of dowry was made. PW 1 Kishori Lal, in his cross-examination, has categorically stated that whenever the deceased visited his house, she would tell that she was taunted and harassed for the demand of dowry. He was asked about the word "harassment" as written in his statement under Section 161 of the Code. This witness would submit that he has not used the word "harassment". He has used the word "taunted". He also submits that specific demand of Rs. 25,000/- and a scooter is told by him in the court for the first time. But, he submits that he told it to PW 3 Hari Ram, his brother, that the appellants have demanded Rs. 25,000/- cash and a scooter in dowry.
32. PW 3 Hari Ram was asked about it. In page 4 of his statement, he has revealed that since he was under
tremendous pressure when he was lodging the FIR, he could not record about the demand of scooter. PW 2 Harish Chand has also stated about the demand of dowry and Panchayat, which was held in the village of the appellants.
33. PW 5 Kripal Chand has also corroborated the statement of PW 1 Kishori Lal with regard to demand of dowry and Panchayat. All of them have stated that they 19 did Panchayat in the village of the appellants, but the appellants misbehaved with them and still continued with their demand.
34. Within two years of marriage, the deceased died. Her father, uncle and other witnesses, who were part of Panchayat have stated about the demand of dowry. Merely because the specific demand has not been written in the FIR, it does not doubt the prosecution case.
35. This Court is of the view that the prosecution has been able to prove that the appellants demanded dowry and for that reason harassed and tortured the deceased.
36. Learned Senior Counsel for the appellants would submit that the deceased committed suicide because she was mentally unstable. In support of her contention, learned Senior Counsel has referred to the postmortem report to argue that, in fact, it does not reveal much. Reference has been made to the Modi Jurisprudence (Modi's Medical Jurisprudence & Toxicology, Twenty-second Edition, page 270), where the symptoms of hanging and strangulation have been detailed. It is as hereunder:-
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Hanging Strangulation
1 Most suicidal 1 Mostly homicidal
2 Face - Usually pale and petechiae 2 Face - Congested, livid and
marked with petechiae.
3 Saliva - Dribbling out of the 3 Saliva- No such dribblng.
mouth down on the chin and
chest.
4 Neck- Stretched and elongated in 4 Neck -Not so.
fresh bodies.
5 External signs of asphyxia, 5 External signs of asphyxia,
usually not well marked
very well marked (minimal if
death due to vasovaga and
caroti sinus effect).
6 Bleeding from the nose, mouth 6 Bleeding from the nose,
and ears very rare
mouth and ears may be
found.
7 Ligaturemark - Oblique, non- 7 Ligature mark- Horizontal or
continuous placed high up in the
transverse continuous, round
neck between the chin and the
larynx, the base of the groove or the neck, low down in the
furrow being hard, yellow and
neck below the thyroid, the
parchment-like.
base of the groove or furrow
being soft and reddish.
8 Abrasions and ecchymoses round 8 Abrasions and ecchymose
about the edges of the ligature
round about the edges of the
mark, rare.
ligature mark, common
9 Subcutaneous tissues under the 9 Subcutaneous tissues under
mark- White, hard and glistening.
the mark- Ecchymosed.
10 Injury to the muscle of the neck - 10 Injury to the muscles of the
Rare
neck - Common
11 Carotid arteries, internal coats 11 Carotid arteries, internal
ruptured in violent cases of a long
coats ordinarily ruptured.
drop
12 Fracture of the larynx and trachea 12 Fracture of the larynx and
- Very rare and that too in judicial
trachea -Often found also
hanging
hyoid bone.
13 Fracture-dislocation of the 13 Fracture-dislocation of the
cervical vertebrae-Common in
cervical vertebrae-Rare
judicial hanging
14 Scratches, abrasions and bruises 14 Scratches, abrasions
on the face, neck and other parts
fingernail marks and bruishes
of the body-Usually not present
on the face neck and other
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parts of the body- Usually
present.
15 No evidence of sexual assault 15 Sometimes evidence of
sexual assault.
16 Emphysematous bullae on the 16 Emphysematous bullae on the
surface of the lungs - Not present
surface of the lungs-may be
present.
37. It is true that each and every factor, which could have distinguished between 'hanging' and 'strangulation' has not been noted in the postmortem report. But, merely because of it also, it cannot be said that the postmortem report does not prove strangulation. PW 7 Dr. Yashwant Singh Rawat has been cross- examined in detail. He has stated that the ligature mark was round the neck, except two inches below the knot. He denied the suggestion that such ligature mark could come due to hanging.
38. A few facts may be noted. PW 7 Dr. Yashwant Singh Rawat, in his cross-examination, has stated that the nose and mouth of the deceased were not bleeding. It may be noted that in the case of hanging, the saliva dribbles out of the mouth down on the chin and chest, as noted by Modi. The reason for it has been stated at page 22 255 of the Modi's Jurisprudence as above, when it records "Saliva is often found dribbling out of an angle of the mouth down on the chin and chest. This is a sure sign of hanging having taken place during life, as the secretion of saliva being a vital function cannot occur after death".
39. The inquest report does not indicate dribbling of saliva from the mouth. The mouth was closed.
40. The postmortem report records the sign of asphyxia. But, PW 7 Dr. Yashwant Singh Rawat has not been put to cross-examination so as to shake his opinion. According to PW 7 Dr. Yashwant Singh Rawat, the death was due to strangulation.
41. The inquest report, Ex. A-1 records that there were four bangles on the right hand of the deceased and there were two bangles on her left hand. This inquest report further records that from the house of the deceased to the place of occurrence, which is about 100 steps, there were broken pieces of bangles. PW 6 Narayan Singh had initially conducted the investigation. According to him, he did not find any mark of dragging from the house of the deceased to the place of occurrence. 23
42. On behalf of the appellants, an argument has been raised that the deceased was epileptic. She was under treatment. She had suicidal tendencies. A document has been placed on behalf of the appellant, which has been proved by DW 3 Bachi Ram as material Ex. 1. It is a prescription of one Dr. V.N. Rajpal dated 07.04.2000. According to it, Smt. Santosi Devi was diagnosed with epilepsy. This document cannot be read into evidence. The doctor, who diagnosed the deceased, has not been examined. There have been other witnesses examined on behalf of the defence to argue that, in fact, the deceased was epileptic. She had suicidal tendencies. But, statements of DW 1 Suresh and DW 2 Badlu Sah do not prove it.
43. At the time of inquest, certain photographs have been taken, which have been proved by PW 8 Chaman Singh, IO. The negatives of these photographs have not been proved, but reference has been made by the learned Senior Counsel of these photographs at the time of argument to argue that the knees as placed in these photographs may not have placed in case of strangulation. As stated the dead body was seated on the ground. The height of tree was about five feet. It was not 24 full suspension. It has also emerged in the evidence that the deceased had her socks, Chappals on her body and her shawl was wrapped properly. As stated, in the inquest it is recorded that there were pieces of broken bangles on the way from the house of the deceased to the place of incident. The inquest records that in one of the hands of the deceased, there were only two bangles, whereas on another hand there were four bangles. This Court does not intend to discuss this aspect in greater detail. It would be academic only.
44. The fact remains that the deceased was a young girl of 21 years of age, who died on 20.01.2001 other than under normal circumstances. The fact remains that, according to PW 7 Dr. Yashwant Singh Rawat, the deceased died as a result of asphyxia due to strangulation. The fact remains that there were signs of asphyxia. The deceased died other than under normal circumstances.
45. The prosecution has been able to prove that the deceased was subjected to cruelty and harassment for or in connection with demand of dowry. It was a continuous process. On 08.05.1999 the deceased married with the appellant Madhvanand. There was a Panchayat in 25 between. It has been proved by the witnesses. On 20.01.2001, the deceased was dead. Her death was other than under normal circumstances.
46. In view of the foregoing discussions, this Court is of a view that the prosecution has been able to prove the charge under Sections 304B, 201 IPC and Section 3/4 of the Act against the appellants beyond reasonable doubts. There is no reason to make any interference and the appeal deserves to be dismissed.
47. The appeal is dismissed.
48. The appellants Madhvanand, Devki Devi and Bhagirathi Devi are on bail. Their bail is cancelled and the sureties are discharged. Let the appellants be taken into custody forthwith to serve out the sentence as awarded by the court below.
49. Let a copy of this judgment along with the lower court record be sent to the court concerned for onward compliance.
(Ravindra Maithani, J.) 24.05.2022 Avneet/