- (1.) PRAFULLA C. Pant, J. This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (here-in after referred as Cr. P. C.), is directed against the judgment and order dated 29-09-1992, passed by the then learned Sessions Judge, Chamoli, in Sessions Trial No. 22 of 1991, whereby the accused / appellants-Ramesh Chandra and Kabutra Devi are convicted under Sections 304 B and 498 A of Indian Penal Code, 1860 (herein after referred as I. P. C.) and sentenced each one of them to undergo imprison ment for life (under Section 304 B I. P. C.) and rigorous imprisonment for a period of three years (under Section 498 A I. P. C.)
(2.) HEARD learned counsel for the parties and perused the lower court record. In brief prosecution story is that Manju (deceased) got married to ac cused / appellant Ramesh Chandra, resi dent of Village Kandi on 25-6-1985, in accordance with Hindu rites in Village Temariya, District Chamoli. The pros ecution case is that from the date of marriage, she was subjected to cruelty and harassment for non fulfillment of demand of dowry by her husband Ramesh Chandra (accused / appellant No. 1) and mother Kabutra Devi (ac cused / appellant No. 2 ). It is alleged by prosecution that Manju (deceased) used to tell her parents about the ill-treatment and cruelty committed against her by both the accused / appellants. On 25-10-1990 she was found hanging on a tree near the house of the accused / appellants. On this, accused / appellant Ramesh Chandra gave a written report (Ext. A-9) to Patt Patwari Chowki Lamgaundi, Tehsil Ukhimath, District Chamoli, that his wife committed sui cide. On receiving information about the death of his daughter, Bishambhar Datt Semwal (P. W. 2), father of the deceased, lodged First Information Report (Ext A-3) to the aforesaid Patwari. (Vide U. P Government Notification No. 494/viii-418-16 dated 07-03-1916. police pow ers are given to the Patwaris, Peshkars (Naib Tehsildars) and Kanoongos of hills ). On the basis of the report given by Bishambar Datt Semwal, crime No. 46 of 1990, was registered with Patti Patwari Lamgaundi, against accused Ramesh Chandra and his mother Kabutra Devi, relating to offences pun ishable under Sections 304 B and 498 A I. P. C. Its alleged by the complainant (Bishambhar Datt) that his daughter was subjected to cruelty by both the accused for non fulfillment of demand of dowry and that either she has been killed by the two or forced to have committed sui cide. Mahavir Singh (P. W. 9) Patwari of aforesaid circle, prepared check report (Ext. A-16) of First Information Report and made necessary entry in the general diary. He went to the spot on the same day i. e. 25-10-1990, took the dead body of Manju in his possession and prepared inquest report (Ext. A-10), police form No. 13 (Ext. A-ll), sketch of the dead body (Ext. A-12), sample seal (Ext. A-13) and letter to the Chief Medical Of ficer (Ext. A-19), requesting him for post mortem examination of the dead body. He also collected letter (Ext. A-l), writ ten by Manju (deceased) and envelope (Ext. A-2) relating thereto. Mahavir Singh (P. W. 9) who initially investigated the crime and collected the material Ext. 1-photograph, and some letters written by the deceased, which were handed over to him by accused/appellant Ramesh Chandra. He also collected rope (material Ext. 3) by which the dead body was hanging and prepared memo randum (Ext. A-15 ). Dead body was sent in a sealed condition for post mortem examination. Dr. H. N. Srivastava (P. W. 5) conducted post mortem examination on 26-10-1990, at 4:00 p. m. and prepared autopsy report (Ext. A-7 ). The investigation was later on taken up by Vikram Singh (PW. 10), Naib Tehsildar of Tehsil Ukhimath on 04-03-1991. After interrogation of the wit nesses and on completion of the inves tigation, charge sheet was filed by Vikram Singh (P. W. 10), Investigating Officer, against both the accused Ramesh Chandra and Kabutra Devi for their trial in respect of offences punish able under Sections 498 A and 304-B I. P. C. The Magistrate, on receipt of the charge-sheet appears to have committed the case to the Court of Sessions, for trial, after giving necessary copies re quired under Section 207 of Cr. P. C. Learned Sessions Judge on 20-11-1991, after hearing the parties, framed charge of. offences punishable under Sections 498 A I. P. C. and 304b I. P. C. against both the accused namely Ramesh Chandra and Kabutra Devi. Both of them pleaded not guilty and claimed to be tried. On this, prosecution got exam ined P. W. 1 Shakuntla Devi, mother of the deceased, P. W. 2 Bishambar Datt, complainant and father of the deceased, P. W. 3 Ramesh Chandra, S/o Sadanand, the Priest (declared hostile), P. W. 4 Narayan Singh (declared hostile), P. W. 5 Dr. H. N. Srivastava, who conducted post mortem examination on the dead body of the deceased, P. W. 6 Gaya Dhar Semwal, Village Pradhan, PW. 7 Kishan Datt, witness of inquest report, P. W. 8 Darban Lal, another witness of inquest report, P. W. 9 Mahavir Singh, Patwari, who started investigation, and P. W. 10 Vikram Singh Negi, who completed the investigation. Oral and documentary evidence were put to the accused under Section 313 of Cr. P. C. in reply to which they only admitted that Manjula alias Manju, was married to Ramesh Chandra in June 1985. It is also not disputed that Manju committed suicide. However, re garding rest of the evidence they alleged the same to be false. In defence D. W. I Trilochan and D. W. 2 Bhupesh Kumar, were got examined. After hearing the parties, the trial court found both the ac cused Ramesh Chandra and Kabutra Devi, guilty of offences punishable un der Section 498a and 304b I. P. C. Thereafter, they were heard on sentence and each one of the convict is sentenced to rigorous imprisonment for a period of three years (under Section 498a I. P. C.) and imprisonment for life (under Section 304b I. P. C. ). Aggrieved by said judgment and order dated 29- 09-1992, accused/ appellant Ramesh Chandra and Kabutra Devi filed this appeal before Allahabad High Court on 20-10-1992, where it was admitted on 21-10-1992. The appeal is received by this Court under Section 35 of U. P Reorganisation Act, 2000, for its disposal.
(3.) BEFORE further discussions, we think it just and proper to mention the ante mortem injuries found on the dead body of the deceased by P. W. 5 Dr. H. N. Srivastava, on post mortem examination conducted on 26-10-1990 at 4:00 p. m. , who prepared autopsy report (Ext. A-7 ). Ante mortem injuries mentioned in the report is being reproduced below : Ligature mark around neck between larynx and trachea which is directed obliquely upward following the line of mandible on left side and at the back reaching the mastoid process behind the left ear. It is deep seated and 37 cm x 2cm and base being pale hard lathery and perchurent. Margins red and congested and some haemohrrage also seen. "neck found slightly elongated. Head on left side titled and congested, swollen, pupils dilated, tongue in between teeth and swollen. No saliva seen. Hands clinched. " The Medical Officer opined that cause of death of the deceased was due to asphyxia as a result of hanging. The autopsy report (Ext. A-7), prepared by P. W. 5 Dr. H. N. Srivastava, establishes on record that Manjula Semwal (de ceased) had died unnatural death. Now the question before this Court is whether it is proved on record or not that accused/appellant Ramesh Chandra (husband of the deceased) and Smt. Kabutra Devi (mother-in-law of the deceased) have commit ted dowry death, as defined in Sec tion 304 B I. P. C. It is further required to be seen whether it is proved on record or not that the deceased was subjected to cruelty and harassment for non fulfilment of demand of dowry by the accused/appellants, which is punishable under Section 498 A I. P. C. P. W. 1 Shakuntla Devi, mother of deceased, has stated that at the time of marriage, Ramesh Chandra (accused) after the fourth round (of fire) with Manjula (deceased), stopped and de manded refrigerator, scooter, etc. It took 2l/z hours to make him agree to take remaining 3 rounds of fire. P. W. I Shakuntla Devi says that after too much of persuasion, he agreed to complete the marriage ceremony. She further states that after marriage, when ac cused/appellant Ramesh Chandra came with Manjula for the first time in her par ents house (for dwaragaman), he started jumping in the night. It is further stated by P. W. I Shakuntla Devi that when Manjula came after 2l/2 years to her par ents house, she told about the cruelty and harassment committed by her hus band and mother-in-law. This witness states that Manjula told her that her husband and mother-in-law made her (deceased) naked, tied her with a cot and thereafter both of them went to meet sister-in-law (Nanad) of the de ceased, who also lived in the same vil lage. After the two returned from the house of sister-in-law of the deceased, they gave beating to the deceased, took out here rings and nose pin. PW. 1 Shakuntla further states that father of the accused- Ramesh, used to work in Chandigarh. The witness further states that once Manjula's mother-in-law Kabutra Devi, came to her house and said about Manjula - 'aisi LADKIYON KO PESHAAB ME BAHA DUNG" "mere LADKE KI KAYI SHADI KARA DUNGI". On this, Shakuntla Devi says that she refused to send Manjula to her in-laws house with her mother-in-law. However, later father of deceased, took her to her in-laws house. P. W. I Shakuntla Devi further states that Manjula used, to write letters in which she used to complaint about the harass ment made against her.;