Kishore Kumar @ Pappu v. State of U.P (Now State of Uttarakhand)

Heard learned counsel for the appellants, and learned counsel for the State, and perused the lower court record. (3) Prosecution story, in brief, accused/appellant no.1 Kishore Kumar @ Pappu got married to Vimla Devi (deceased) on

11.03.1994, in Village Mayarampur, within the limits Police Station Kaladhungi. Accused/appellant no.2 Bankey Lal was father in law of the deceased, accused/appellant no.3 Sushila was mother in law of the deceased, and accused/appellant no.4 Km. Beena Chaudhary was sister in law of the deceased. After her marriage, the 3 deceased came to her parental house on 18.03.1994, and told her parents and other relatives that accused/appellants made demand of dowry. She further told that she was beaten by the accused/appellants. On 21.03.1994, she again joined her husband in his house. On 07.04.1994, the parents of Vimla Devi got an information that their daughter was lying in a shocked condition. On this information, the parents of Vimla Devi rushed to the house of the accused/appellants, and took their daughter Vimla Devi to Kotabagh for her treatment. From there, when Vimla Devi was being taken for further treatment to Ramnagar Hospital, she died on the way. On 08.04.1994, PW1 Than Singh (father of the deceased) lodged First Information Report (Ex- A1) at police outpost Kotabagh at about 7 a.m. The police rushed to the village via Ramnagar and took the dead body of Vimla Devi in their possession, and prepared inquest report (Ex-A2). Other necessary papers like Police Form No. 13 (Ex-A4), sketch of the dead body (Ex-A5), sample seal of (Ex-A6), letter to Incharge Medical Officer Kashipur (Ex- A3) requesting for post mortem examination were also prepared. The body was sent in a sealed condition for post mortem examination. PW9 Dr. 4 Yashpal Singh alongwith Dr. Surendra Singh conducted post mortem examination on the dead body of Vimla Devi on 08.04.1994, at about 11.45 a.m. However, cause of death could not be ascertained, and viscera was preserved as mentioned in the autopsy report (Ex-A11). Forensic Laboratory Agra sent its report on the analysis contents of viscera, and it was opined that item no.1 and item no.2 of the viscera contained aluminium phosphide poison meanwhile. The investigation was conducted by PW8 Virendra Mishra Circle Officer, who interrogated the witnesses, and inspected the spot. After completion of investigation, the Investigating Officer submitted charge sheet (Ex-A8) against the accused/appellants Kishore Kumar @ Pappu, Bankel Lal, Smt. Sushila and Km. Beena Chaudhary, for their trial in respect of offences punishable under section 328 and 304B of I.P.C. (4) The Additional Munsif/Judicial Magistrate, on receipt of charge sheet, after giving necessary copies to the accused as required under section 207 of Cr.P.C., committed the case to the court of Sessions for trial. Learned Ist Additional Sessions Judge, Nainital, after hearing the parties framed 5 charge of offences punishable under section ¾ of Dowry Prohibition Act, 1961, under section 498A of I.P.C., and under section 304B of I.P.C in alternative 302/34 and under section 306 of I.P.C against all the four accused namely Kishore Kumar @ Pappu, Bankey Lal, Sushila and Beena Chaudhary on

28.02.1998. All of them pleaded not guilty and claimed to be tried. On this prosecution got examined PW1 Than Singh (father of the deceased), PW2 Pan Singh (witness of inquest report), PW3 Pan Singh, PW4 Madhvi Devi (mother of the deceased), PW5 Pushkar Singh, PW6 Kunwar Singh (another witness of the inquest report), PW7 P.P. Khantwal (Pharmacist of Kotabagh), PW8 Virendra Mishra (Circle Officer, who investigated the crime) and PW9 Dr. Yashpal Singh Rawat. The oral and documentary evidence was put to the accused under section 313 of Cr.P.C., in reply to which they alleged that the evidence adduced against them was false, and they did not deny that Vimla Devi fell unconscious on 07.04.1994, and died on her way to Ramnagar for medical treatment. However, no evidence in defence was adduced. After hearing the parties, the trial court found that the charge of offences punishable under section 304B of I.P.C and 6 498A I.P.C., and one punishable under section ¾ of Dowry Prohibition Act, 1961, proved against all the four accused/appellants. After hearing on sentence each one of the convicts was sentenced to rigorous imprisonment for a period of ten years under section 304B of I.P.C. No separate sentence was awarded under section 498A of I.P.C. and under section ¾ of Dowry Prohibition Act, 1961. Aggrieved by said judgment and order dated

17.08.1999, passed by Additional Sessions Judge, Haldwani, in Sessions Trial No. 342 of 1994, this appeal was filed by the convicts before Allahabad High Court from where the same is received by transfer under section 35 of U.P. Reorganization Act 2000 (central Act 29 of 2000), for its disposal. (5) Before further discussion, this Court thinks it just and proper to mention about the observations made by team of Medical Officers in the autopsy report (Ex-A11) after conducting post mortem examination. Said document on the record shows that there was no ante mortem injury found on the dead body. The team of Medical Officers has opined that the cause of death could not be ascertained, as such, viscera was preserved for 7 further assessment of cause of death. PW9 Dr. Yashpal Singh Rawat has proved the autopsy report on record. Another relevant document on the record in Ex-A12 which is the report of the Forensic Laboratory Agra on the analysis contents of viscera. Said documents discloses on the record that viscera of Vimla Devi sent in a sealed condition to the Forensic Laboratory was chemically examined and it was found that part 1 & 2 of the viscera (i.e. stomach and lever) contained aluminium phosphide poison. As such, the medical evidence on record read with the report of the Forensic Laboratory establishes on the record that the deceased had consumed poison due to which she died unnatural death. (6) It is admitted that Vimla Devi got married to the accused/appellant no.1 Kishore Kumar @ Pappu on 11.03.1994. It is also established on the record that Vimla Devi died unnatural death on 07.04.1994, i.e. within one month of her marriage with the accused/appellant no.1. Now, this Court has to see whether the accused/appellants committed “ dowry death ” as defined in section 304B of I.P.C. Said section provides that where the death of a woman is 8 caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “ dowry death” , and such husband or relative shall be deemed to have caused her death. Sub section (2) of 304B provides that punishment for commission of dowry death shall be not less than seven years but which may extend to imprisonment for life. Word “ cruelty” has been defined in Explanation 2 section 498A of I.P.C. Said definition is being reproduced below:- (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of a woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or 9 valuable security or is on account of failure by her or any person related to her to meet such demand. It is relevant to mention here that section 113B of Indian Evidence Act, 1872, provides that 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 of dowry, the Court shall presume that such person had caused the dowry death. (7) PW1 Than Singh is father of the deceased, who has lodged First Information Report (Ex-A1) with the police. This witness has stated that at the time of marriage of his daughter with the accused/appellant no.1 Kishore Kumar @ Pappu on

11.03.1994, traditional items of dowry like sofa set, bed, godrej almirah and jewellery etc. were given. He has also stated that he helped his son in law by giving his ` 15000/- in construction of house. PW1 Than Singh further stated that on 18.03.1994, for the first time after her marriage, her daughter came to her parent's house, where she told that 10 accused/appellants make demand of dowry and ill-treat her. The witness has narrated conduct of accused/appellant no.1 Kishore Kumar @ Pappu as to his displeasure shown due to dissatisfaction on account of insufficient dowry. PW1 Than Singh further told that 7.04.1994, that coming to know about condition of his daughter he went to her in laws place and took her for medical treatment to Kotabagh from where she was taken to Ramnagar, but she expired on the way. However, this witness has no where stated as to what was the specific act on the part of accused/appellant no.4 Beena Chaudhary (sister in law of the deceased) in harassing the deceased. In the cross examination this witness has stated that accused/appellant no.1 Kishore Kumar and Vimla Devi knew each other before marriage, and wanted to marry. He further admitted that the marriage was initially solemnized in a temple, where after the formal marriage ceremony was conducted. (8) PW4 Madhvi Devi (mother of the deceased) has fully corroborated her statement PW1 Than Singh regarding the items given in the demand of dowry made by her son in law and the fact as to 11 how her daughter died unnatural death within one month of her marriage, but this witness has also not stated as to what was the specific act on the part of accused/appellant no.4 Beena Chaudhary constituting harassment or cruelty against the deceased. PW3 Pan Singh and PW5 Pushkar Singh have also corroborated the statements of PW1 Than Singh and PW4 Madhvi Devi that Vimla Devi after she came to her parental house on 18.03.1994 disclosed about the harassment for non fulfillment of demand of dowry by her husband and in laws. (9) Having re-assesed the evidence on record, this Court finds that the trial court has rightly believed that prosecution has successfully proved charge of offences punishable under section 304B and 498A of I.P.C., against the accused/appellant no.1 Kishore Kumar @ Pappu. However, as to the role of accused/appellant no.4 Beena Chaudhary in the opinion of this Court there is no sufficient evidence to hold her guilty of the charge. (10) Learned counsel for the appellants argued before this Court that since the marriage between the deceased and accused/appellant no.1 Kishore Kumar 12 @ Pappu was a love marriage, as such, there was no question of demand of dowry. This Court has carefully gone through the evidence on record, and it finds that though the deceased of the accused/appellant no.1 wanted to marry each other and their marriage was initially solemnized in a temple but it was followed by a traditional marriage as narrated by PW1 Than Singh and PW4 Madhvi Devi. It has also come on the record that after the marriage was solemnized in a temple, traditional items of dowry were given by the parents of the deceased, but the accused/appellant no.1 Kishore Kumar & Pappu was not satisfied with the same. It has also come on the record that the deceased soon before her death was subjected to cruelty on account of non fulfillment of demand of dowry, and she disclosed the same to her parents on 18.03.1994, when she visited her parental house after her marriage. Therefore, this Court is not inclined to interfere with the findings of the trial court as against the accused/appellant no.1 Kishore Kumar @ Pappu. (11) For the reasons as discussed above, this Court is of the view that appeal of 13 accused/appellant no.1 Kishore Kumar @ Pappu is liable to be dismissed. However, the appeal of accused/appellant no.4 Beena Chaudhary deserves to be allowed for the reasons already discussed above. (12) Accordingly, the appeal of accused/appellant no.1 Kishore Kumar @ Pappu is hereby dismissed. His conviction and sentence recorded by the trial court is hereby affirmed. He is on bail. His bail is cancelled. He shall surrender before the trial court to serve out the remaining part of the sentence. Appeal of accused/appellant no.4 Beena Chaudhary is hereby allowed, and conviction and sentence recorded by the trial court against her is hereby set aside. She is on bail. She need not to surrender. (Appeal of accused/appellant no.2 Bankey Lal and accused/appellant no.3 Sushila stands abated due to their death during the pendency of this appeal). Lower court record be sent back. Dt.20.11.2012 N.P (Prafulla C. Pant, J.)