Allowed

State v. Anand Mani and Anr.

Uttarakhand HC3 Dec 2012GA/1291/2000

Case brief

AI extract

What is this about?

High Court allowed criminal appeal against acquittal of husband in dowry death case. Court held trial court erred in relying on untested hearsay dying declaration. Under Section 113B IPC, presumption of dowry death applied due to non-rebuttal despite untested statement. Husband convicted, relative acquitted.

What did the court decide?

Conviction and sentence for Anand Mani under Sections 498A and 304B IPC; release from custody to serve sentence. Acquittal of Purna Nand affirmed.

State Vs Anand Mani and Anr. — Dowry and Cruelty | Uttarakhand HC (2012)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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Criminal Government Appeal No. 1612 of 2001 (Old No. 1291 of 2000)

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State of Uttar Pradesh (now State of Uttarakhand)

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…..…Appellant

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Versus

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Anand Mani S/o Kheemanand

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Purna Nand S/o Kheemanand Both R/o Village Maletha, P.S. Srinagar

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District Pauri Garhwal

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..…….Respondents

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Mr. M.A. Khan, A.G.A., present for the appellant. Ms. Anjali Noliyal, Advocate (Amicus Curiae) present for the respondents.

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Honʹble Prafulla C. Pant, J.

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This appeal, preferred under section 378 of Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 10.02.2000, passed by learned Sessions Judge, Pauri Garhwal, in Sessions Trial No. 32 of 1997, whereby said court has acquitted the accused/respondents Anand Mani and Purna Nand from the charge of offence punishable under section 498A/34 IPC, and under section 304B/34 IPC, and from the alternative charge of offence punishable under section 302/34 IPC.

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Heard learned counsel for the State, learned Amicus Curiae for the respondents and perused the lower court record.

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Prosecution story, in brief, is that accused/ respondent no. 1 Anand Mani got married to Kiran (deceased) in the intervening night of 9^th and 10^th of March, 1995. Customary dowry said to have been given in the marriage by the parents of the deceased but the accused/respondents were not satisfied with the dowry, and they used to make demand of dowry, and for non fulfillment of demand of dowry the deceased was subjected to cruelty. On 30.12.1996, Kiran died of asphyxia as a result of ante mortem burn injuries. First Information Report (Ex. A2) was got lodged on 31.12.1996, by P.W.4 Virendra Prasad Bhatt (brother of the deceased) alleging that accused/ respondent no. 1 Anand Mani used to make demand of dowry, and subjected Kiran to cruelty in connection therewith. He (P.W.4) further alleged that before the relatives from the parental side could reach, the dead body was disposed of by the accused. It is also alleged in the FIR by the brother of the deceased that Kiran had expressed her apprehension to him that she could be killed if

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demand is not met. On the basis of first information report, crime no. 9 of 1996 relating to offence punishable under section 304B IPC, was registered by Mahila Police Station, Srinagar (District Pauri Garhwal) against accused/respondent Anand Mani and his brother Purna Nand and other relatives. The crime was investigated by P.W.6 Station Officer Uma Shukla who interrogated the witnesses and inspected the place of incident. It appears that the burn injuries were suffered by Kiran on 29.12.1996, and she was taken to base hospital Srinagar (District Pauri Garhwal) where she succumbed to injuries on 30.12.1996. On receipt of information of unnatural death from said hospital (before first information was lodged), police of Mahila Police Station went to said hospital on 30.12.1996, took dead body of Kiran in their possession and inquest report (Ex. A5) was prepared. The Station Officer of Mahila Station further prepared letter to Chief Medical Officer (Ex.A6 requesting for post mortem examination), sketch of dead body (Ex. A7), sample seal (Ex. A8), police form no. 13 (Ex. A9). P.W.3 Dr. A.K. Gupta alongwith Dr. S.D.Agarwal conducted post mortem examination on the very day (30.12.1996) at 3:45 p.m. The team of medical officers after recording ante

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mortem burn injuries in the autopsy report (Ex. A1) opined that the deceased (Smt. Kiran) had died of asphyxia as a result of ante mortem burns. The Investigating Officer, after completion of investigation submitted charge sheet (Ex.A13) against accused/respondent no. 1 Anand Mani and his brother Purna Nand (respondent no.2) for their trial in respect of offence punishable under section 304B IPC.

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The Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused as required under section 207 Cr.P.C., appears to have committed the case to the court of Sessions for trial .Learned Sessions Judge, Pauri Garhwal, on 04.07.1997, after hearing the parties, framed charge of offence punishable under section 498A/34 IPC and under section 304B/34 IPC ,against both the accused Anand Mani and Purna Nand. The trial court further framed alternative charge of offence punishable under section 302/34 IPC against the two accused. Both of the accused pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Rajendra Prasad (brother of the deceased), P.W.2 Jamoti Devi (mother of the deceased), P.W.3 Dr. A.K.

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Gupta (who conducted post mortem examination with another medical officer), P.W.4 Virendra Prasad (informant and brother of the deceased), P.W.5 Head Constable Munni Garbyal and P.W.6 Station Officer Uma Shukla (who investigated the crime). The oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which it was admitted that accused Anand Mani was married to Kiran (deceased) but rest of the evidence was alleged to be false. It is also pleaded by the two accused that Kiran died of accidental fire while cooking food. However, no evidence in defence was adduced. The trial court after hearing the parties took note of the fact that the Investigating Officer has admitted in cross‐examination that at the time of preparing inquest report he was told by one Dr. Chauhan in the presence of a ward boy that deceased told him (Dr. Chauhan) that she caught accidental fire. Treating said statement as dying declaration the trial court disbelieved the prosecution story and acquitted the two accused from the charge. It is pertinent to mention here that none of the Dr. Chauhan or ward boy were examined by the trial court.

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Aggrieved by said judgment and order dated 10.02.2000, passed by learned Sessions Judge, Pauri Garhwal, in Sessions Trial No. 32 of 1997, State filed the appeal before Allahabad High Court challenging the order of acquittal. The appeal is received by this Court under section 35 of U.P. Reorganization Act, 2000 for its disposal. Leave was granted and appeal was admitted by this Court and lower court record was summoned. Notices were issued to the accused who engaged their counsel but on the date of hearing the counsel pleaded that he had no instructions. In the circumstances, Ms. Anjali Noliyal, Advocate, was appointed Amicus Curiae to assist the court and she was provided paper book and heard.

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Before further discussion this Court thinks it just and proper to mention the observation made by the team of medical officers who conducted post mortem examination on the dead body of Kiran Devi (wife of accused/respondent Anand Mani) on 30.12.1996. Autopsy report (Ex. A1) read with statement of P.W.3 Dr. A.K. Gupta discloses following ante mortem burn injuries found on the body of Kiran Devi (deceased):‐

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“Superficial burn all over the body present except both sole and scalp (singeing of scalp hairs present) skin pealed off at places and skin hyperaemic.”

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The team of medical officers has opined in the autopsy report (Ex. A1) of which formal proof is also dispensed with and genuineness is admitted by the defence counsel that the deceased had died of asphyxia as a result of ante mortem burns as such the medical evidence on record establishes that Kiran Devi has died a death otherwise than under normal circumstances rather caused by the burns she suffered.

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Section 304B IPC which defines dowry death provides that where the death of a woman is 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. It

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is pertinent to mention here that word “shown” is used in the section and not word “proved”.

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It is admitted to the accused/respondents that Kiran Devi (deceased) got married to accused/ respondent no. 1 Anand Mani on 9/10 of March, 1996. It is also not disputed that she died unnatural death on 30.12.1996 i.e., within two years of her marriage. Now this Court has to see whether accused/respondent harassed the deceased in connection with any demand of dowry soon before her death or not.

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P.W.1 Rajendra Prasad (brother of the deceased) has stated that at the time of marriage of his sister Kiran with accused/respondent Anand Mani he (Anand Mani) made demand of ` 20,000/‐ and only after said amount was paid to him, he agreed to complete the ceremony of solemnization of marriage. The witness further told that he was serving in Meerut where accused Anand Mani (husband of the deceased) came thrice from his village, and each time asked for money and was obliged to the extent the demand could be fulfilled by him (P.W.1). P.W.1 Rajendra Prasad further told that from time to time

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he received information that his sister Kiran was being subjected to cruelty by the accused/respondents.

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P.W.2 Jamoti Devi (mother of the deceased) has also corroborated the fact that accused/respondent No. 1 Anand Mani demanded 20,000/‐ at the time of marriage and he was obliged. She also told that customary dowry was also given in the marriage. <u>This witness further stated that accused/respondent used to come to her village Dilure (District Pauri Garhwal) and asked for money. She further told that he was obliged by giving sometimes 1,000/‐ and sometimes 2,000/‐. In all she paid 7,000/‐ to him on different dates, after the marriage. P.W.2 Jamoti Devi (mother of the deceased) disclosed that her daughter told her that her husband is a drunkard and gambler who beats her and harassed. According to this witness, Kiran (deceased) told her that at times she was not given food in the house, particularly after she stopped giving money, her daughter was beaten.

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P.W.4 Virendra Prasasd who is informant (another brother of the deceased) has also

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corroborated the prosecution story as stated by his mother P.W.2 Jamoti Devi. For brevity the same is not being reproduced. He has proved first information report (Ex. A2) lodged by him at the Police Station on 31.12.1996. This witness has also told that on 28.12.1996 (one day before she suffered burn injuries) when he had gone to temple, he met his sister Kiran and her husband Anand Mani. According to this witness there also the accused made demand of ` 10,000/‐ which could not be fulfilled. This witness has further told that Kiran (deceased) asked him to pay some money to her husband else she would be beaten. The witness has further disclosed that there was mark of injury on the head of Kiran. P.W.4 Virendra further told that on the next day he came to know that his sister suffered burn injuries and when he went to Srinagar Base Hospital (Pauri Garhwal) by then the accused had already taken the dead body of the deceased from the hospital.

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From the statements of above mentioned three witnesses, read together, it is clearly established on record that not only accused/respondent no. 1 Anand Mani made demand of dowry soon before her death,

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but also harassed his wife Kiran for non fulfillment there of.

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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 has been subjected by such person to cruelty or harassment for or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death. It is pertinent to mention here that in defence no evidence has been adduced to rebut the presumption.

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As far as accused/respondent no. 2 Purna Nand is concerned none of the witnesses have stated that Purna Nand made any demand of dowry, or if he harassed the deceased. The specific allegations of making of demand dowry and that of harassment are proved only as against accused/respondent no.1 Anand Mani (husband of the deceased).

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Learned Amicus Curiae defending the impugned judgment, pointed out that P.W.6 Station Officer Uma Shukla who investigated the crime has

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stated that she was told by one Dr. Chauhan in Base Hospital at the time of preparing inquest report in the presence of a ward boy that deceased told him (Dr. Chauhan) in the hospital that she caught fire accidentally as such on the basis such dying declaration the prosecution story was rightly disbelieved. However, on scrutiny of evidence on record I am unable to agree with the submission of learned Amicus Curiae. It is pertinent mention here that though the statement made by the deceased as to the cause of his or her death made to someone is admissible under section 32 of Indian Evidence Act, 1872, but such witness to whom it was made should have deposed in the court that the statement was made before him. The statement relied by the defence is the hear say of the hear say evidence. Neither Dr. Chauhan nor the ward boy appears to have signed the inquest report nor anyone of them was examined by the defence. In such circumstances what has been stated by P.W.6 Uma Shukla could have been read under evidence only if Dr. Chauhan and the ward boy have died. That being so trial court has erred in law in relying on said statement based on hearsay of hearsay evidence.

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For the reasons as discussed above, the appeal as against accused/respondent no.1 Anand Mani deserves to be allowed. The acquittal recorded by the trial court relating to him (Anand Mani) in respect of offences punishable under section 498A, 304B IPC, are liable to be quashed. The acquittal in respect of offence punishable under section 302 IPC does not interference. The as require appeal against accused/respondent no. 2 Purna Nand is liable to be dismissed as there is no evidence of demand of dowry made by him or that he harassed the deceased as such his acquittal from the charge, recorded by the trial deserves to be affirmed. This Court, after hearing the learned Amicus Curiae for respondent/accused Anand Mani and learned counsel for the State/appellant, is of the view that punishment of rigorous imprisonment for a period of two years under section 498A IPC and rigorous imprisonment for a period of seven years under section 304B IPC against accused/respondent no. 1 Anand Mani would meet the ends of justice.

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Accordingly, the appeal as against accused/ appellant no. 1 Anand Mani in respect of offences punishable under section 498A and 304B IPC is

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hereby allowed. Acquittal recorded by the trial court relating to said offences in respect of accused/ respondent Anand Mani is set aside. He is convicted under section 498A and 304B IPC. He (Anand Mani) is sentenced to rigorous imprisonment for a period of two years under section 498A IPC, rigorous imprisonment for a period of seven years under section 304B IPC. Both the sentences shall run concurrently. He shall surrender before the trial court and serve out the sentence awarded by this Court. Appeal as against accused/respondent no. 2 is hereby dismissed and acquittal recorded by the trial court is affirmed. He (Purna Nand) need not to surrender. Lower court record be sent back to make accused/ respondent Anand Mani to serve out the sentence as awarded by this Court.

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(Prafulla C. Pant, J.) 03.12.2012

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Parul AFR

State v. Anand Mani and Anr.

Case brief

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State v. Anand Mani and Anr.

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