Decided on June 15,2012



SERVESH KUMAR GUPTA, J. - (1.) THIS appeal challenges the order of conviction dated 26.10.1999 rendered by learned Additional Sessions Judge, Nainital in Sessions Trial No. 526 of 1995 titled as 'State Vs. Shekhar Chandra and three others' which pertains to Patti Simlekha, Tehsil Koshyakutoli, District Nainital for the offence under Section 304-B, 201, 498-A IPC. After conclusion of the trial, learned Additional Sessions Judge found that no case under Section 304-B and 201 IPC is proved against the appellants but he convicted all the accused appellants for the offence under Section 498-A IPC and sentenced them to undergo three years rigorous imprisonment and pay fine of Rs. 2000/- each. In default of payment, each one of them was directed to undergo two months simple imprisonment.
(2.) HAVING heard learned counsel for the parties, it transpires that Kusum (deceased) was espoused with accused Shekhar Chandra on 04.12.1994. She had no real brother and her father was also not alive. She used to reside with her mother in village Attavarat, Tehsil � Koshyakutoli, District � Nainital. After about two months from marriage Shekhar Chandra along with his brother on 25.01.1995 at 04.00 p.m. reached in the native house of Kusum and informed that whereabouts of Kusum are not known ever since the night of 24.01.1995. He also extended this information to the concerned Patwari. Having gained this knowledge, her cousin PW 1 Deep Chandra along with others went to village Sakdina, which is probably in the vicinity of village Jinauli. It is pertinent to mention that village Jinauli is the native place of accused persons and the distance between village Attavarat and Jinauli is 50 Kms but both are in the same Tehsil Koshyakutoli and the only mode to cover the said distance is by trekking, as there is no motor road that is why PW1 Deep Chandra took as much as six hours in reaching to village Sakdina from his native village Attavarat. A massive hunt was conducted by all the persons including the appellants, which resulted into recovery of dead body of Kusum on 27.01.1995 at the evening hours in a deep gorge in the outskirt of village Jinauli. An inquest report was prepared on 28.01.1995 at 01.30 p.m. and at the time of preparation of inquest report, PW1 Deep Chandra as well as other persons hailing from village Attavarat were also present. In the opinion of PANCH, cause of death was not apparent. Copy of inquest report is Exhibit Ka � 3. Autopsy was conducted on 29.01.1995 at 01.15 p.m. in District Hospital, Nainital by Dr. D.K. Joshi and following ante mortem injuries were found on the body of Kusum by PW6 Dr. D.K. Joshi: "i. Upper end of left femur just below head, completely broken and protruding out of skin at just above middle of left thigh. ii. Lower end of Tibia of left foot dislocated and protruding out of skin at medial malleolus. iii. Fracture of upper end of tibia of left leg. iv. Lacerated wound on scalp skin deep about 6 cm. X 0.5 cm. v. Multiple bruise on back of right forearm. vi. Lacerated wound size 7 cm. X 1 cm. muscle deep on inner side of upper most past of right thigh."
(3.) IN the opinion of Dr. D.K. Joshi, death was caused due to shock and haemorrhage, as a result of ante mortem injuries. This doctor has opined that injury no. 1 and 5 were possible on account of falling down from intense height. The injury no. 1 disclosed that bone of left thigh was completely fractured while injury no. 2 divulged dislodging of left foot bone from its joint. Besides, the lower part of the left leg was also fractured. The First Information Report was lodged by PW1 Deep Chandra on 31.01.1995 at 11.00 a.m. The matter was investigated and charge-sheet against all the four accused for the offence under Section 304-B, 201 IPC read with Section 3/4 Dowry Prohibition Act had been submitted. Learned Additional Sessions Judge did not level the charge of Section 3 /4 of the Dowry Prohibition Act and instead charge under Section 498-A in addition to Section 304-B, 201 IPC was levelled against all the accused appellants.;

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