- (1.) PRAFULLA C. Pant, J. These two appeals, preferred under Section 374 of Code of Criminal Proce dure, 1973 (hereinafter referred as Cr. P. C.), are directed against the same judgment and order dated 25-03-2003, passed by learned Sessions Judge, Dehradun, in Sessions Trial No. 84 of 1998 and Sessions Trial No. 24 of 1999, whereby accused/appellants, Ravi Kant, Shree Kant, Shashi Kant and Sri Niwas, are convicted under Section 498 A of Indian Penal Code, 1860 (hereinafter re ferred as I. P. C.), 304 B I. P. C. and one punishable under Section 4 of Dowry Prohibition Act, 1961. Each of the con vict/appellants is sentenced to undergo imprisonment for life and to pay fine of Rs. 5. 000/- under Section 304 B I. P. C. , to rigorous imprisonment for a period of one year and to pay fine of Rs. 1,000/-under Section 498-A I. P. C. , and rigor ous imprisonment for a period of one year and to pay fine of Rs. 2,000/- un der Section 4 of Dowry Prohibition Act, 1961.
(2.) HEARD learned counsel for the parties and perused the record. Prosecution story in brief is that Smt. Ujwala Upadhyay (deceased) got married to accused/appellant Ravi Kant on 28-01-1995. On 10-02-1998, she lodged a report (Ext. A-5) with police sta tion Raipur, Dehradun, that on 07-02-1998, she was turned out by the ac cused/ appellants from her house and was made to go to her parents' house. When her parents asked her to live in her husband's house, she came back there on 10-02-1998, but the accused/ appellants did not allow her to enter in the house even after the intervention by the neighbours. Somehow after interven tion by police and the neighbours, Ujwala Upadhyay (deceased) was al lowed to stay in the house of her hus band. However, on 25-02-1998, she was found dead. On 26-02-1998, at 8:30 a. m. when P. W. I Krishna Kaul, mother of the deceased received the information on phone about death of her daughter, she came to Dehradun, and lodged First Information Report (Ext. A-6) at 3:10 p. m. on that very day with police sta tion Raipur. In which it is alleged by her that deceased was subjected to cruelty by her husband-Ravi Kant, mother-in-law Padma Devi, father-in-law Sri Niwas, brother-in-law Shri Kant (Jeth) and brother-in-law -Shashi Kant (Devar), for non for non fulfillment of demand of dowry. She further alleged that deceased used to complain her through letters and phones about the cruelty committed by her in-laws with regard to which com plaints were also made to the police. She further reported to the police that after Ujwala (deceased) made complaint to the police on 10-02-1998, her hus band was arrested and thereafter a com promise was entered into and the ac cused/appellant promised not to harass her. Lastly, it is alleged in the First In formation Report that on 25-02-1998, the in-laws of Ujwala have strangulated her with a SAARI and hanged her. On the basis of the report (Ext. A-6) of P. W. I Krishna Kaul, crime No. 17 of 1998, was registered by RS. Raipur, against accused/appellants Ravi Kant, Sri Niwas, Smt. Padma Devi, Sri Kant and Shashi Kant, relating to offences punishable under Section 498 A and 304 B I. P. C. P. W. 9 Surendra Singh Chauhan, C. O. City, Dehradun, started the inves tigation of the case. Said Investigating Officer accompanied with PW. 7 Sub-In spector Mohd. Waseem Siddique, went to the spot, took the dead body of Ujwala into his possession and prepared inquest report (Ext. A-22) and other necessary papers connected therewith. PW. 7 Mohd. Waseem further prepared the memorandum (Ext. A-19) of the bro ken bangles, found at the spot, memo randum (Ext. A-21) of SAARI by which the dead body was hanging. Before pre paring inquest report of the dead body, PW. 11 Ashish Pandey, a Photographer, was called and the dead body was pho tographed. P. W. 10 Dr. D. N. Dhyani, Medical Officer of Doon Hospital, Dehradun, conducted the post mortem examination on 26-02-1998 on the dead of the deceased, at about 3:45 p. m. , and prepared autopsy report (Ext. A-27 ). The Medical Officer opined that cause of death was asphyxia as a result of ante mortem hanging. P. W. 9 S. S. Chauhan, collected the letter (Ext. A- l), written by the deceased to her mother, interrogated the witnesses, prepared the site plan (Ext. A-24 ). Subsequently, the investigation was taken up by P. W. 8 Smt. Kalpana Saxena, Circle Officer, who after completing the investigation, submitted charge sheet (Ext. A-23) against all the five accused namely Ravi Kant, Sri Kant, Shashi Kant, Padma Devi and Sri Niwas, relating to offences punishable under Section 498 A, 304 B I. P. C. and one punishable under Section 3/4 Dowry Prohibition Act, 1961. The Judicial Magistrate, on re ceipt of the charge sheet, after giving necessary copies to the accused, as re quired under Section 207 Cr. PC. , com mitted case to the court of Sessions, for trial. On 10-09-1998, after hearing the parties, learned Sessions Judge, Dehradun, framed charge of offences punishable under Sections 498-A I. P. C. , 304 B I. P. C. and one punishable under Section 4 of Dowry Prohibition Act, 1961. He further framed alternative charge of offence punishable under Sec tion 147 I. PC. and one punishable un der Section 302 read with Section 149 I. PC. All the five accused namely, Ravi Kant, Sri Kant, Shashi Kant, Padma Devi and Sri Niwas, pleaded not guilty and claimed to be tried. It appears that during trial, accused Padma Devi, mother-in-law of the deceased died, and her trial stood abated. The case pro ceeded against other accused, who are the appellants before this Court. Pros ecution got examined before trial court P. W. 1 - Smt. Krishna Kaul (complainant and mother of the deceased), P. W. 2 Rajeev Lochan Kaul (brother of the de ceased), P. W. 3 Vimla Khanna (hostile), P. W. 4 H. C. Khanna (hostile), P. W. 5 Head Constable Bhuwa Nand (who proved the extract of general diary, re lating to the entry of First Information Report dated 10-02-1998, lodged at police station by the deceased), P. W. 6 Constable Mohan Singh Bisht, (who proved extract of general diary relating to the entry of First Information Report dated 26-02-1998), P. W. 7 Sub Inspector Mohd. Waseem Siddique (who investi gated the crime, registered on the basis of the report dated 10-02-1998, lodged by the deceased and also proved the document, which he prepared on inspec tion of the spot by Investigating Officer S. S. Chauhan, in crime No. 16 of 1998), PW. 8 Kalpana Saxena (Investi gating Officer who completed the inves tigation), P. W. 9 Surendra Singh Chauhan (who started the investiga tion), P. W. 10 Dr. D. N. Dhyani (who con ducted autopsy on the dead body), P. W. 11 Ashish Pandey (who photographed the hanging dead body) and P. W. 12 Gajendra Tripathi (witness of the inquest report, recovery of saari and chappals from the spot ). Apart from this, an affidavit of formal witness of Hanuman Singh was also filed, who proved memorandum (Ext. A-19) relat ing to the collected broken bangles. The defence was given opportunity, but did not cross examine this deponent-Hanuman Singh. Prosecution evince was put to the accused under Section 313 Cr. P. C. regarding which they pleaded the same to be false. Only this much is admitted by them that Ujwala (deceased) got married to Ravi Kant ori 28-01-1995. At the end of the reply under Section 313 Cr. P. C. , the accused stated that Ujwala was mentally a weak woman. She used to live separately with her husband in the first floor. Accused/ appellants have alleged that Ujwala com mitted suicide. No oral evidence is ad duced by the defence. After hearing the parties, the trial court found all the four accused namely Ravi Kant, Sri Kant, Shashi Kant and Sri Niwas guilty of of fences punishable under Sections 498 A and 304 B I. P. C. and one punishable under Section 4 of Dowry Prohibition Act, 1961. However, accused were ac quitted by the trial court of the charge of offence punishable under Section 3 of Dowry Prohibition Act, 1961. After hearing on sentence, each of the con vict, is sentenced to imprisonment for life under Section 304 B I. P. C. and to pay fine of Rs. 5,000/-, to rigorous impris onment for a period of one year and to pay fine of Rs. 1000/- under Section 498 A I. PC. , to rigorous imprisonment for a period of one year and directed to pay fine of Rs. 2. 000/- under Section 4 of Dowry Prohibition Act, 1961. Aggrieved by said judgment and order dated 25-03-2003, passed by learned Sessions Judge, Dehradun, in Sessions Trial No. 84 of 1998 and Sessions Trial No. 24 of 1999, criminal appeal No. 119 of 2003, is filed by the convict Ravi Kant (hus band of the deceased) and criminal ap peal No. 117 of 2003, is filed by remain ing three convicts namely Shri Kant, brother-in-law (Jeth), Shashi Kant brother- in-law (Devar) and Sri Niwas (fa ther-in-law ).
(3.) BEFORE further discussions, we think it just and proper to mention the ante mortem injuries recorded by P. W. 10 Dr. D. N. Dhyani, who prepared au topsy report (Ext. A-27) on 26-02-1998, which are being reproduced below : Legature mark present on the neck, above the thyroid, 2cm below the chin. Mark 25 cm long around the. neck, on the back leaving space of 7cm on the left lateral aspect of neck and partial to the mandible line. On cutting the tissue is shining white (sub-cutaneous tissues ). No other mark of external injury seen. From the statement of P. W. 10 Dr. D. N. Dhyani, read with autopsy re port (Ext. A-27), it is established that the deceased has died due to asphyxia, as a result of ante mortem handing. As such, her death is unnatural. It is also established on record that Ujwala has died within 7 years of her marriage, as admittedly she got married on 28-01-1995, with accused/ appellant Ravi Kant and she was found dead on 26-02-1998. Now this Court has to see whether the deceased was subjected to cruelty or harassment by the accused/ appellants or not. To prove said fact, the prosecution has heavily relied on the re port dated 10-02-1998 (Ext. A-5) lodged by the deceased against the accused/ap pellants 15 days before her death with P. S. Raipur and the statements of P. W. 1 Smt. Krishna Kaul (mother of the de ceased) and that of P. W. 2 Rajeev Lochan Kaul (brother of the deceased ).;