- (1.) PRAFULLA C. Pant, J. This appeal, preferred under section 374 of Code of Criminal Procedure, 1973 (hereinafter re ferred as Cr. P. C), is directed against the judgment and order dated 29. 9. 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 (hereinafter referred as I. P. C.) and sentenced each one of them to undergo imprisonment for life (under sec tion 304-B, I. P. C.) and rigorous imprison ment 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 rec ord. In brief, prosecution story is that Manju (deceased) got married to accused/appellant Ramesh Chandra, resident of Village Kandi on 25. 6. 1985, in accordance with Hindu rites in Village Temariya, Dis trict Chamoli. The prosecution case is that from the date of marriage, she was sub jected to cruelty and harassment for non-fulfilment of demand of dowry by her hus band Ramesh Chandra (accused/appellant No. 1) and mother Kabutra Devi (accused/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 ac cused/appellants. On 25. 10. 1990, she was found hanging on a tree near the house of the accused/appellant. On this, ac cused/appellant Ramesh Chandra gave a written report (Ext. A-9) to Patti Patwari Chowki Lamgaundi, Tehsil Ukhimath, District Chamoli, that his wife committed suicide. 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. Govern ment Notification No. 494/viii-418-16, dated 7. 3. 1916 police powers 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 punishable under sections 304-B and 498-A, I. P. C. It is alleged by the complainant (Bishambhar Datt) that his daughter was subjected to cruelty by both the accused for non-fulfilment of de mand of dowry and that either she has been killed by the two or forced to have committed suicide. Mahavir Singh (P. W. 9) Patwari of aforesaid circle, prepared check report (Ext. A-16) of First Information Re port and made necessary entry in the gen eral 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 in quest report (Ext. A-10), police form No. 13 (Ext. A-11), sketch of the dead- body (Ext. A-12), sample seal (Ext. A-13) and letter to the Chief Medical Officer (Ext. A-19), re questing him for post-mortem examination of the dead-body. He also collected letter (Ext. A-1), written by Manju (deceased) and envelope (Ext. A-2) relating thereto. Mahavir Singh (P. W. 9) who initially in vestigated 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 memorandum (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 (P. W. 10), Naib-Tehsildar of Tehsil Ukhimath on 4. 3. 1991. After interrogation of the witnesses and on completion of the investigation, charge-sheet was filed by Vikram Singh (P. W. 10), Investigating Officer, against both the ac cused Ramesh Chandra and Kabutra Devi for their trial in respect of offences punish able under sections 498-A and 304-B, I. P. C. 4. 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 required un der section 207 of Cr. P. C. Learned Sessions Judge on 20. 11. 1991, after hearing the par ties, framed charge of offences punishable under sections 498-A, I. P. C. and 304-B, 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 examined P. W. 1 Shakuntia Devi, mother of the deceased, P. W. 2 Bishambar Datt, complain ant 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. Srivas tava, who conducted post-mortem examination on the dead-body of the deceased, P. W. 6 Gaya Dhar Semwal, Village Prad-han, P. W. 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 com pleted 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, regarding rest of the evidence they alleged the same to be false. In defence D. W. 1 Trilochan and D. W. 2 Bhupesh Ku mar, were got examined. After hearing the parties, the Trial Court found both the ac cused Ramesh Chandra and Kabutra Devi, guilty of offences punishable under sec tions 498-A and 304-B, I. P. C. Thereafter, they were heard on sentence and each one of the convict is sentenced to rigorous im prisonment for a period of three years (under section 498-A, I. P. C.) and impris onment for life (under section 304-B, I. P. C. ). Aggrieved by said judgment and order dated 29. 9. 1992, accused/appellants 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. Reorganization Act, 2000, for its disposal. Before further discussions, we think it just and proper to mention the ante-mortem injuries found on the dead-body of the deceased by RW. 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 di rected 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 c. m. x 2 c. m. 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 tilted and congested, swollen, pupils dilated, tongue in between teeth and swollen. No sa liva seen. Hands clinched. " 5. 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 (deceased) had died unnatural death. Now the ques tion before this Court is whether it is proved on record or not that ac cused/appellants Ramesh Chandra (husband of the deceased) and Smt. Ka-butra Devi (mother-in-law of the deceased) have committed dowry death, as defined in section 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 ac cused/appellants, which is punishable un der section 498-A, I. PC. 6. P. W. 1 Shakuntla Devi, mother of the deceased has stated that at the time of marriage, Ramesh Chandra (accused) after the fourth round (of fire) with Manjula (deceased), stopped and demanded refrig erator, scooter etc. It took 2-1/2 hours to make him agree to take remaining 3 rounds of fire. P. W. 1 Shakuntla Devi says that af ter 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. 1 Shakuntla Devi that when Manjula came after 2-1/2 years to her parents house, she told about the cruelty and har assment committed by her husband 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 deceased, who also lived in the same village. After the two returned from the house of sister-in-law of the deceased, they gave beating to the deceased, took out her earrings and nose pin. P. W. 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 Ladki-yon Ko Peshaab Me Baha Dungi" "mere Ladke Ki Kayi Shadi Kara Dungi". On this, Shakuntia Devi says that she refused to send Manjula to her in-laws house with her mother-in-law. However, later father of the deceased, took her to her in-laws house. P. W. 1 Shakuntla Devi further states that Manjula used to write letters in which she used to complain about the harassment made against her. 7. P. W. 2 Bishambar Datt is com plainant and father of the deceased. He has stated that in June, 1985, his daughter Manjula (deceased) got married to ac cused/appellant Ramesh Chand. The wit ness further states that before marriage, it was told to him that Ramesh Chandra is doing Ph. D. and works in Punjab Univer sity. P. W. 2 Bishambar Datt further states that on the date of marriage when the rounds were taken by Ramesh Chandra with Manjula (of fire), after the fourth round, he stopped and refused to complete the remaining rounds. For 2-1/2 hours, he did not move. The witness further states that he fell down on the feet of Ramesh Chandra and gave a wrist watch only thereafter he agreed to complete the mar riage ceremony. Like P. W. 1 Shakuntla this witness has also stated that at that time, accused Ramesh Chandra demanded re frigerator, scooter, television etc. The wit ness further states that Manjula and Ramesh came for Dwaragaman, for the first time after marriage, in his house, accused Ramesh Chandra started jumping in the night. He told that soul of deity has entered within him. He started shouting "tv. Ka-han Hai". P. W. 2 Bishambar Datt, has fur ther stated that after 2-1/2 years of mar riage, when Manjula (deceased) came to her parents house, she told them about the atrocities committed against her for nonfulfilment of demand of dowry. He has further stated that during the period Man jula remained in her in-laws house, she used to write letters complaining about the cruelty being committed against her. The witness has proved the letters written by the deceased. It is further stated by the witness that deceased told him that ac cused/appellants Ramesh Chandra and his mother used to beat her. It is further stated that once deceased was made naked, tied in a cot by two accused, who left her in the house and went to the house of sister-in-law (Nanad) of the deceased and returned in the evening. 8. The natural statement of the above two witnesses, which discloses horrifying cruelty committed by accused/appellants Ramesh Chandra and Kabutra Devi against the deceased Manjula for non-fulfilment of demand of dowry, is shocking. Behaviour on the part of accused/appellants estab lished on record constitutes the offences punishable under sections 498-A, I. P. C. and 304-B, I. P. C. From the letters (Ext. A-1, Ext. A-4 and Ext. A-5) written by the deceased to her father clearly corroborate the oral testimony given by the aforesaid two wit nesses namely P. W. 1 Shakuntla Devi and P. W. 2 Bishambar Datt. In her letters, Manjula has intimated that letters may be the last communication to her father. Prosecution has successfully proved on record that atrocities narrated by the afore said two witnesses committed by two ap pellants Ramesh Chandra and Kabutra Devi against Manjula, have driven her (Manjula) to commit suicide. 9. Learned Counsel for the appel lants argued that the prosecution must show the harassment for non- fulfilment of demand of dowry soon before the un natural death. In this connection, it is fur ther contended that demand of dowry at the time of marriage, cannot be said to have proximity with commission of suicide, which has taken place after more than 5 years. Having gone through the evidence on record, we are of the view that had there been no harassment during the period of five years, what learned Counsel for the appellants has argued could have been ac cepted. But there is sufficient evidence on record to show that the deceased was con tinuously harassed for non-fulfilment of demand of dowry. In some of the letters written by the deceased to her father she has even asked her father to send Petticoat and Blouse for her. 10. Shri Lokendra Dobhal, learned Counsel for the appellants drew attention of this Court to the case of State o/rajasthan v. Tag Bahadur, 2005 SCC (Cri) 218 and it is contended that burden lies on the prosecution to show that the deceased was subjected to cruelty for non-fulfilment of demand of dowry and only then presumption can be drawn under section 113-B of Indian Evidence Act, 1872. Having gone through the facts of the case, we are of the view that in the present case there is sufficient evidence adduced by the prosecution showing that the deceased was subjected to cruelty for non-fulfilment of demand of dowry and driven to commit suicide, as such, since the facts of the case are not similar, the case of State of Rajastlwn (supra) referred on behalf of the appellants is of no help to them. 11. Our attention is drawn on behalf of the appellants to the statement of P. W. 3 Ramesh Chandra, son of Sadanand, P. W. 4 Narayan Singh, who have not supported the prosecution story. On examination of record we found these witnesses were got declared hostile. The prosecution has not placed any reliance on them, as such, even after leaving the statements of these two witnesses, the testimony given by P. W. 1 Shakuntla Devi and P. W. 2 Bishambar Datt remains un shaken. Learned Counsel for the appellants also drew our attention to the statement of D. W. 1 Trilochan and D. W. 2 Bhupesh Ku mar, who have stated that there is no custom of dowry in the hills. We have considered their statements. Assuming for a moment that the custom of dowry is not deep rooted in the hills and there are no big demand made but still in the present case what had happened with the deceased cannot be dis believed merely for the reason that the custom is not proportionally grave as compared to some of the other areas of the country. 12. Lastly, Shri Dobhal, learned Counsel for the appellants drew attention of this Court to the case of Ashok Kumar v. State of Haryana 2007 (51) AIC 118 (SC) = (2008) 1 SCC (Cri) 304 and submitted that the sentence of imprisonment for life awarded in the present case is too harsh and on the facts and in the circumstances of the case, it is disproportionate to the act of accused. Having considered submissions of learned Counsel for the parties, we are of the view that the Trial Court has awarded maximum possible punishment to convicts (accused/appellants ). In our opinion, on the facts and in the circumstances of the case, rigorous imprisonment for a period of ten years un der section 304-B, I. P. C. would have been sufficient to meet the ends of justice. 13. For the reasons discussed above, this appeal is liable to be dismissed except for partial modification of sentence under section 304-B, I. P. C. Therefore, conviction recorded by the Trial Court in respect of the offences punishable under sections 304-B, I. P. C. and 498-A, I. P. C. against ac cused/appellants Ramesh Chandra and Kabutra Devi, is affirmed and sentences awarded to each one of them under section 498-A by said Court is also affirmed. How ever, the sentence of imprisonment for life awarded by the Trial Court under section 304-B, I. P. C. is reduced to rigorous impris onment for a period of ten years in respect of both the accused/appellants. With this modification in the sentence awarded against the accused/appellants, the appeal stands disposed of. Accused/appellants are on bail. Their bail is cancelled. The Court concerned shall take the accused/appellants into custody to make them serve out the sentences awarded (as modified by this Court) against them. Registry is di rected to send the record back to the lower Court. Sentence Modified. .;