Dismissed

Dalip Singh v. Kishan Singh Kunwar and Ors.

Uttarakhand HC8 May 2014CRLR/82/2004

Case brief

AI extract

What is this about?

The High Court dismissed a criminal appeal and revision arising from a dowry death case. The Court upheld the conviction of the husband under Section 304-B IPC for dowry death while affirming the acquittal of the mother-in-law due to lack of specific evidence linking her to the cruelty or demand. The appeal seeking sentence enhancement was also dismissed.

What did the court decide?

Conviction affirmed; sentence enhancement rejected; bail cancelled and surrender directed.

Dalip Singh Vs Kishan Singh Kunwar and Ors. — Dowry and Cruelty | Uttarakhand HC (2014)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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Criminal Revision No.82 of 2004

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Dalip Singh … Revisionist

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vs.

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Kishan Singh Kunwar and others … Respondents

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AND

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Criminal Appeal No.103 of 2004

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Kishan Singh Kunwar … Appellant vs.

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State of Uttarakhand … Respondent

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Mr. M. C. Pande, Senior Advocate assisted by Mr. Devsh Upreti, Advocate for the revisionist.

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Mr. Saurav Adhikari, Amicus Curiae for the appellant-Kishan Singh Kunwar in Criminal Appeal No.103/2004 and respondent in CRLR no.82/2004. Ms. Shruti Joshi, Brief Holder for the State.

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U. C. Dhyani, J. (Oral)

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Since the aforesaid Criminal Revision and the Criminal Appeal arise out of the same judgment and order dated 29.03.2004, passed by Sessions Judge, Champawat, therefore, both the cases are being decided by this common judgment for the sake of brevity and convenience.

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PW1 Dalip Singh (revisionist herein) wrote a complaint (Ex.Ka-1) on 10.12.2002 against Kishan Singh Kunwar and Laxmi Devi, which was registered as case crime no.225/2002 at police station Banbasa, Lohaghat, District Champawat under Section 304-B IPC. The incident allegedly took place sometimes between 30.11.2002 to 09.12.2002. The distance between the place of incident and the police station concerned was 4 kms,

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hence, there appears to be no delay in lodging FIR. The informant PW1 was the father of the deceased. It was stated in the FIR that the victim was married to the appellant-Kishan Singh Kunwar on 10.03.2002 at Champawat. Husband and mother-in-law of the victim demanded a maruti car as dowry after her marriage. It was also mentioned in the FIR that a motorcycle was given to the appellant as dowry in the marriage. The husband and mother-in-law of the victim (i.e. Kishan Singh Kunwar and Laxmi Devi respectively) used to harass her for want of giving sufficient dowry. The victim made a complaint of the same to PW1 and PW2. PW1 counselled the appellant and his family members not to harass the victim. Even then, the accused persons continued to harass her. The same was informed by the victim to PW1 on telephone also. On 01.12.2002, the appellant informed PW1 that the victim was missing since 30.11.2002. Then, PW1 alongwith his wife went to Pachpokaria (Champawat) from Aligarh. Accused persons misguided them. They started searching victim and when she was not found, an application to this effect was given in police station Banbasa. On 09.12.2002, PW1 alognwith his wife came to know that a dead body of a woman was hanging on a tree. PW1 went there alongwith his relatives and police personnel only to find that the dead body belonged to his daughter. The husband and mother-in-law of the victim killed the victim for want of giving sufficient dowry.

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After investigation of the case, a charge-sheet was submitted against the husband and mother-in-law of the victim (i.e. Kishan Singh Kunwar and Laxmi Devi) for the offence punishable under Section 304-B IPC. When the trial began and prosecution opened it’s case, charge against the accused persons was framed for the offence under Section 304-B IPC, to which they pleaded not guilty and claimed trial.

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PW1 Dalip Singh (informant, father of the victim), PW2 Bhawani Devi (mother of the victim), PW3 Prayag Singh, PW4 Prem Singh, PW5 Dan Singh, PW6 S.I. Radhe Shyam and PW7 C.O. Dr. K. L. Sah were examined on behalf of the prosecution. Genuineness of the postmortem report was admitted on behalf of the accused persons. Incriminating evidence was put to the accused persons under Section 313 Cr.P.C., in reply to which they said that they were falsely implicated in the case. DW1 Kushal Singh and DW2 Mohan Singh were examined in defence.

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After conclusion of the trial, learned Sessions Judge, Champawat, vide judgment and order dated 29.03.2004, acquitted Laxmi Devi of the charge levelled against her, but convicted Kishan Singh Kunwar of the charge under Section 304B IPC and sentenced him to undergo rigorous imprisonment for a period of 7 years. Aggrieved against the conviction and sentence, present Criminal Appeal was preferred by the appellant-Kishan Singh Kunwar. Aggrieved against the acquittal of Laxmi Devi and for enhancement of the sentence awarded to the convict/appellant, the Criminal Revision was preferred by the revisionist Dalip Singh.

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Prosecution led the evidence through PW1, who, in his examination-in-chief, supported the prosecution story and also proved the contents of the complaint (Ex.Ka-1). In his crossexamination, PW1 stated that when he received the information from the appellant, he reached Banbasa. When he reached at the place where the dead body of the deceased was found hanging, it appeared to him that the appellant-Kishan Singh Kunwar and his mother Laxmi Devi killed the victim and her dead body was hanged after killing her. He denied the suggestion of the defence that his daughter was not interested in doing household works in the village.

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PW2, in her examination-in-chief, also supported the prosecution story. She stated, among other things, that the victim complained to her that her husband and mother-in-law demanded car, which demand could not be fulfilled. In her brief cross-examination, she stated that the appellant served in the Indian Army. She denied the suggestion that the appellant and his mother-Laxmi Devi did not demand car as dowry.

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PW3 stated that when the victim came to him on RakshaBandhan, she complained that her mother-in-law and husband harassed her for want of bringing sufficient dowry. They demanded a car. A motorcycle was already given to the husband of the victim at the time of marriage. In his cross-examination, PW3 denied the suggestion that the appellant and his mother did not abet the commission of her suicide (by demanding car).

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PW4 was the signatory to the inquest report. He denied that the appellant and his mother demanded dowry in his presence.

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PW5 also stated that a motorcycle was given by PW1 (father of the victim) to the appellant (husband of the victim) at the time of marriage. The victim complained that her husband and mother-in-law demanded a four-wheeler vehicle as dowry. PW5 denied the suggestion that the victim did not want to live in her matrimonial home and therefore she committed suicide. PW6 prepared inquest report (Ex.Ka-4).

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Dr. P. K. Mishra, Medical Officer, District Hospital, Pilibhit conducted the postmortem of the deceased on 10.12.2002 at 2:45 PM. The medical officer found that a rope was present all around

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her neck. There was a nod present on the right side of neck below right ear. A ligature mark of bluish black in colour was present in front of neck, which was 2.9 cm x 3 cm in diameter, 4 cm below right ear and 3.5 cm below left ear, 6.5 cm below chin in front, above thyroid cartilage. The ligature mark was pale, hard and parchment, the margins were congested. The cause of death was asphyxia due to ante-mortem hanging. Since the formal proof of the postmortem report was dispensed with by learned counsel representing the accused before the trial court, therefore, the same was marked as Ex.Ka2.

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PW7 was the Investigating Officer of the case, who proved the site-plans (Ex.Ka-5 & Ka-6) and chargesheet (Ex.Ka-7). In the cross-examination, he stated that the ingredients of harassment were proved on the basis of evidence.

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DW1 denied that the victim was harassed by her husband and mother-in-law. So was the evidence of DW2, who affirmed the evidence of PW1 that the victim was never harassed by her husband or her mother-in-law. The evidence tendered by DW1 and DW2 was in the form of negative evidence and, therefore, no reliance can be placed upon their testimony.

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It was stated in the FIR that on 01.12.2002, the husband of the victim informed PW1 that the victim was missing since 30.11.2002. PW1 alongwith his wife reached Champawat from Aligarh. PW1 alongwith his wife continued to make franetic search for their missing daughter, but when they could not trace out the victim, therefore, they gave a missing report at police station Banbasa. On 09.12.2002, PW1 and PW2 were informed that a dead body was found hanging on a tree. They went there only to find out that the dead body was of their daughter. The

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FIR was lodged only when the dead body of the victim was found by her parents.

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It is surprising that the husband of the deceased did not make any effort to search out his missing wife. Even if he made efforts, evidence of which is not available on record, why did he not file a missing report in the police station concerned that his wife was not traceable? The evidence on record does not disclose that the husband of the victim made any effort for searching out his missing wife. Nothing was brought on record to show the same. Also, nothing was brought on record to show that he filed a missing report of his wife in the police station concerned. He simply informed PW1 that the victim was missing from his house. The husband of the victim thought that it was enough for him to have informed victim’s father. That he has completed his duty and thereafter it was the duty of the victim’s parents to search her out. The dead body of the victim was found not very far of from the residence of the appellant. He was an Army man, not a lazy person, who could not have traced out the body of his wife. He would have made the life hell for the villagers in an effort to find out his missing wife. This shows that he was aware of the hanging of the victim, but deliberately chose to maintain silence to cover up his part of crime. Nothing was stated by the appellant in his statement under Section 313 Cr.P.C. in this respect. An accused is required to speak something when the law enjoins upon him to speak the same. Nowhere in his statement under Section 313 Cr.P.C., the appellant explained as to why he did not make any effort to trace out his missing wife. Even if no specific question was asked to him in this respect, he ought to have said something in reply to the last question, which was asked to him under Section 313 Cr.P.C. The appellant has miserably failed to account for his duty towards his wife.

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The victim survived her marital life hardly for nine months. The postmortem report indicated that she died otherwise than under normal circumstances. Two limbs of offence punishable under Section 304-B IPC were, therefore, proved at the very outset. The prosecution was also required to prove the third limb as to whether it was shown that ‘soon before her death’, she was subjected to cruelty or harassment by her husband and motherin-law for or in connection with any demand of dowry? The expression ‘soon before her death’ used in the substantive section 304B IPC and Section 113B of the Evidence Act is present with the idea of proximity text. No definite period has been indicated and the expression ‘soon before her death’ is not defined. The determination of the period which can come within the term ‘soon before’ is left to be determined by the courts, depending upon facts and circumstances of each case. The said term would normally imply that the interval should not be much between the cruelty or harassment and the death in question. There must be existence of proximate and live link between the two.

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It has been indicated above that the victim survived her marital life hardly for 9 months. There is, therefore, existence of a proximate and live link between the effect of cruelty based on dowry demand and the concerned death. Had the alleged incident of cruelty remote in time and become stale enough not to disturb her, it would have been of no consequence, but in the instant case, the alleged incident took place when her husband was at his home, as was indicated by DW1. Any married woman whose husband came on leave from Army after a certain interval will commit suicide only when certain compelling circumstances are there. She will do it only when her dreams are shattered and it appears to her that life is now meaningless for her. What those compelling circumstances were, was manifested, in the instant

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case, by the prosecution in the form of testimony of PW1, PW2 & PW3.

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The prosecution is not required to prove that ‘soon before’ her death, she was subjected to cruelty or harassment in connection with demand of dowry. The prosecution has simply to show the same. [The word ‘shown’ is used in Section 304B IPC]. The presumption shall be raised only on proof of the following essentials:-

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i. The question before the court must be whether the accused has committed the dowry death of a woman.

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ii. The woman was subjected to cruelty or harassment by her husband or his relatives.

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iii. Such cruelty or harassment was for, or in connection with, any demand for dowry.

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iv. Such cruelty or harassment was soon before her death.

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In dowry death cases, and in most of such offences, direct evidence is hardly available and such cases are usually proved by circumstantial evidence. Section 304B IPC as well as Section 113B of the Evidence Act enact a rule of presumption, i.e., if death occurs within seven years of marriage in suspicious circumstances. This maybe caused by hanging or burns or any other bodily injury. Thus, it is obligatory on the part of the prosecution to show that death occurred within seven years of marriage. If the prosecution would fail to establish that death did not occur within seven years of marriage, this section will not apply. In the instant case, the death of the victim occurred within 9 months of marriage and therefore, the applicability of Section 304B IPC and Section 113 Evidence Act cannot be doubted. Further, the evidence was offered to show that a motorcycle was

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already given to the appellant in the marriage. A demand for a four wheeler vehicle was again raised. The victim, therefore, committed suicide when such demand could not be met and the appellant, her husband had already arrived at Champawat on leave. Appellant was serving in the Indian Army and it is unfortunate that the victim committed suicide when her husband was present in her matrimonial home.

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The offence punishable under Section 304 IPC was, therefore, proved against the appellant beyond a shadow of reasonable doubt. The most surprising aspect of the matter was that the husband of the victim did not make any effort to trace out his missing wife and that speaks in volumes against his role in the commission of alleged offence. The victim survived her marital life hardly for 9 months. It is, therefore, held that the victim was subjected to cruelty or harassment by the appellant soon before her death in connection with the demand for dowry.

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21. Learned trial court discussed and appreciated the prosecution evidence correctly. Learned trial court committed no mistake in holding that the prosecution was able to prove it’s case against the appellant beyond a shadow of reasonable doubt. This Court also assessed the prosecution evidence independently to come to the conclusion that the prosecution story was proved against the appellant to the hilt. No interference is, thus, called for in the impugned judgment and order, so far as the conviction of the appellant under Section 304-B IPC is concerned. Criminal appeal thus fails and is dismissed. The minimum sentence prescribed under Section 304-B IPC has already been awarded to the appellant. This Court does not think it proper to enhance the sentence awarded to the appellant.

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According to the scheme of Section 304B IPC, any relative of the husband of victim (read mother-in-law here) can also be convicted, provided it is shown that ‘soon before’ her death, the mother-in-law also harassed victim or committed cruelty on her on account of dowry demand. In the instant case, there was no evidence to establish the fact that the mother-in-law of the victim also made a demand for a maruti car. In normal circumstances, it could have been presumed that the mother-in-law was in league with her son in raising such demand, but the trial court did not find any such evidence to co-relate ‘dowry death’ with the act of the mother-in-law of the victim.

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She was, therefore, granted benefit of doubt by the trial court. At this juncture, it will be apt to reproduce herein the observations of Hon’ble Apex Court in Ashok Kumar vs. State of Rajasthan, (1991) 1 SCC 166 :

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“2. Law is well settled. While caution is the watchword, in appeal against acquittal as the Judge has occasion to watch demeanour of witnesses interference should not be made merely because a different conclusion could have been arrived at; the provision does not inhibit (sic) any restriction or limitation. Prudence demands restraint on mere probability or possibility but in perversity or misreading interference is imperative otherwise existence of law shall be rendered meaningless.”

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The mother-in-law of the victim could also be convicted of the alleged offence, like her son, who happened to be the husband of the victim, but in the absence of any cogent evidence to co-relate her involvement in the alleged crime, the trial court rightly acquitted her (mother-in-law of the victim) of the charge levelled against her. Moreover, it is well settled law that if two views are reasonably possible on the basis of the evidence on

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record, then the view taken in favour of the accused must be preferred. This Court is, therefore, unable to take a different view from what was taken by the court below. No interference is thus called for in the impugned judgment and order in so far as the acquittal of the respondent mother-inlaw under Section 304B IPC is concerned.

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The Criminal Revision preferred by the complainant, as also, the Criminal Appeal preferred by the appellant-convict thus fail and are, accordingly, dismissed.

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The conviction and sentence awarded to the appellant is hereby affirmed. The appellant is on bail. His bail is cancelled. He is directed to surrender before the Court concerned forthwith to serve out the sentence awarded to him by learned trial court.

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Let a copy of this judgment alongwith lower court record be sent to the Court below for ensuring compliance of this order.

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(U. C. Dhyani, J.)

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Dated 08^th May, 2014

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Rawat

Dalip Singh v. Kishan Singh Kunwar and Ors.

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What is this about?

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Dalip Singh v. Kishan Singh Kunwar and Ors.

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