IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 57 of 2010 State ....Appellant Versus Devendra Singh & others .Respondents Mr. Amit Bhatt, Dy.A.G. for the State. Mr. R.P. Nautiyal, Senior Advocate assisted by Mr. B.S. Koranga, Advocate for the respondents. Judgment Reserved- 31.08.2017 Date of Judgment - 14.09.2017 Coram: Honble Rajiv Sharma, J Honble Sharad Kumar Sharma, J Per: Honble Rajiv Sharma, J State has challenged the judgment and order dated 17.04.2010, rendered by learned Sessions Judge, Rudraprayag in Sessions Trial No.18 of 2008, whereby the respondents, who were charged with and tried for the offences under Section 498-A, 304-B and 120-B of IPC have been acquitted.

2. The case of the prosecution, in a nutshell, is that on 28.04.2008, PW4 Tajwar Singh Bhandari submitted an application before the District Magistrate, Rudraprayag stating therein that his sisters marriage was solemnized on 20.10.2007 with respondent Devendra Singh Bisht. His sisters husband, brother-in-law and mother-in-law started harassing her for bringing insufficient dowry. His sister used to inform her family members about the demand of dowry raised by the respondents. On 25.04.2008 at about 7:00 PM, his mother received a telephonic call that her daughter was missing w.e.f. 24.04.2008. He was informed about the incident by his mother on telephone. On 27.04.2008, at about 8:00 PM, he reached his home. On 28.04.2008, he went to the house of his sisters in-laws. From the behavior of the respondents, he could make out that his sister has been killed and dead body was disposed of. Thereafter, the FIR was registered and the investigation was carried out. The dead body was sent for postmortem examination. The doctor has opined that Smt. Sushila Devi has died due to ante mortem injuries and not due to drowning.

3. The prosecution has examined number of witnesses in its support. The statements of the respondents were also recorded under Section 313 of Cr.P.C. They have denied the case of the prosecution. They were acquitted, as noticed hereinabove. Hence, this government appeal.

4. Learned counsel appearing on behalf of the State has vehemently argued that the prosecution has proved its case against the respondents beyond reasonable doubt. Learned Senior counsel appearing on behalf of the respondents has supported the judgment and order dated 17.04.2010.

5. We have heard learned counsel for both the parties and perused the judgment and record carefully.

6. PW1 Smt. Thapa Devi has testified that her daughter was married with respondent-Devendra Singh. Her daughter, when came back for the first time from her in-laws house, told that her in-laws including her mother- in-law Kunja Devi, husband Devendra Singh and brother- in-law Jagdish were harassing her and demanding dowry. They were demanding Rs.2.00 lakh or to construct a house for them in Haridwar. Her son was employed at Haridwar. She has apprised her sons about the demand raised by her daughters in-laws. She herself went to her daughters in- laws house on 10.04.2008. All of them fought with her. She has testified that there was no demand of dowry at the time of marriage that is why she has married her daughter with Devendra Singh. She came back on 11.04.2008. She received a telephonic call from her daughter that she was very upset. All the respondents were harassing her and used to beat her. Jagdish has asked her on telephone whether his sister-in-law has come to her parents house. She told him that she has not come to her house. He told that their daughter ran away. She was missing. She told this incident to her both sons. Both sons went to their sisters in-laws house. She was searched. The dead body of her daughter was recovered on 10th day from Gochar in River Ganga. In her cross-examination, she has admitted that the expenditure of marriage reception was borne by both the parties. Her daughter, at the time of engagement was in 11th standard and she was pursuing her 12th from the local school, while staying with her parents. She has deposed that she came to know after 3-4 days, after her daughter went missing, that Kandi was recovered from the jungle. However, her slippers and sickle were not recovered.

7. PW2 Balbir Singh is the brother of the deceased. According to him, they have given dowry according to their status. However, after few days, his sister was harassed by her in-laws including husband, mother-in-law and brother- in-law. He has received a telephonic message after 10 days that her in-laws were harassing her and demanding Rs.2.00 lakh or to construct a house for them at Haridwar. On 24.04.2008, in the morning, his wife received the telephonic call from Sushila. She told her that she was pregnant. She demanded for clothes. The in-laws refused to provide her clothes. On 25.04.2008, he was in night duty. His wife told him that Sushilas brother-in-law has informed to his mother that Sushila had gone missing. On 28th, both the brothers went to their sisters in-laws house. In his cross-examination, he has deposed that his sister was pursuing 12th. She used to visit her in-laws after 10-12 days.

8. PW3 Smt. Mira Bhandari is the sister-in-law of the deceased. She has categorically deposed that on 24.04.2008, she received a telephonic call from her sister- in-law that the in-laws were demanding dowry. She had stomachache. She asked for medicine. But it was not provided to her. Even the clothes were not provided to her. She has received a telephonic call on 25th April from her mother-in-law, informing her that Sushilas brother-in-law has informed that Sushila had gone missing. She told this fact to her husband. In her cross-examination, she has denied the suggestion the expenditure towards her education was borne by her husband.

9. PW4 Tajwar Singh is also the brother of deceased. He was residing at Jammu & Kashmir. He was in private employment. He has deposed that his mother has informed his brother about the incident, which has taken place on 24.04.2007. His brother has told him about the incident. He left Jammu on 26th April and reached at his house on 27th April. He reached his sisters in-laws house on 28th. He inquired about his sister. Her in-laws told that they did not know about the whereabouts of Sushila. He went to Patwari, Gochar. He inquired from Patwari whether any missing report of his sister was lodged. Patwari told him that no complaint was lodged, neither in writing nor orally. Thereafter, he registered the FIR on 29th April. The in-laws of his sister did not cooperate with them in searching Sushila. His uncle received a telephonic call from police that the dead body was recovered and they should come to Rudraprayag Hospital. He went to Rudraprayag Hospital. He recognized the dead body of his sister. The respondents came to their house and asked for compromise. The respondents were talking about Sickle, Kandi and slippers. These items were not shown to him.

10. PW5 Rishipal Singh has also deposed that his niece was harassed for bringing insufficient dowry. The behavior of respondents was not cooperative. When this incident has happened, he was the Pradhan of his village.

11. PW6 Km. Anjana has deposed that Sushila was her class-fellow.

12. PW7 Rajendra Singh has also deposed that Sushila was his niece. She was married in the year 2007. Sushila used to tell about the behavior of her in-laws to her mother. He has also made inquiries about the same from Sushila. Sushila also used to tell that respondents were harassing her for brining insufficient dowry. He has also deposed that Sushila used to stay in her in-laws house and used to come only for examination. According to him, Sushila and Devendra Singh were living in the lower portion of the house and on the upper portion, respondents- Jagdish and Smt. Kunja Devi were staying.

13. PW8 Vijaypal Singh has deposed that he was Pradhan of the village. On 24.04.2008, he was aware that the wife of Devendra Singh has gone missing. They were searching for her but they have not gone to her in-laws house. He had also visited the spot from where the dead body of Sushila was recovered. The information was sent to in-laws. He was declared hostile and cross-examined by learned Additional District Government Counsel.

14. PW9 Jagdish Prasad Gairola is the Patwari. Devendra Singh has informed him on telephone that his wife has gone missing on 26.04.2006. He made the entry in G.D. But he has not brought the G.D. with him. He has sent the communication on 28.04.2008 to SDM, Rudraprayag.

15. PW10 Dr. Digvijay Singh has conducted the postmortem examination. He has proved the postmortem report. According to him, Sushila has died due to shock and excessive bleeding due to ante mortem injuries. No water in the lungs was found, thus, she has not died by drowning.

16. PW12 Devendra Singh Nabyal was initially the Investigating Officer. According to him, the dead body was recovered from Alaknanda River. He reached the spot and the dead body was taken in possession. The panchnama was also prepared. The information of recovery of dead body was given by Devendra Singh. The dead body was inflated.

17. PW13 K.R. Bhatt is the official witness. He made inquiries from the close relations. He has also admitted that he has not visited the spot from where kandi, sickle and slippers of the deceased were lying.

18. PW14 Ashadu Lal Arya has also investigated the matter. He has testified that the information of dead body was given by the accused. But he came to know from the villagers that the kandi, sickle and slippers of the deceased were lying at different places.

19. The accused-respondents have also examined DW1 Rakesh Bisht to prove that the respondent Devendra Singh was depositing Rs.100/- in the account of Sushila w.e.f. 07.12.2007 onwards.

20. DW2 Prem Singh has deposed that on 25.04.2008, he was going in a bus at 12 noon. He saw towards the forest. He noticed that one girl wearing red clothes has fallen from the cliff. He saw this from a distance of km. He asked the driver to stop the bus but the driver did not stop the bus. He came to know after 3-4 days that the wife of Devendra Singh was missing. He told the incident to them and the villagers started looking for the dead body towards the river.

21. DW3 Smt. Maya Devi has deposed that she has arranged the marriage of Sushila Devi and Devendra Singh and at that time, there was no demand for dowry.

22. The marriage of Sushila Devi with Devendra Singh was solemnized on 28.10.2007. She has gone missing on 24.08.2008. The respondent no.2 has informed the mother of the deceased in the evening of 25.04.2008. Thereafter, the mother of the deceased has informed her sons, who reached their house and went to the house of their sisters in-laws. It is very strange that the respondents have not lodged any missing report on 24.0.2008 themselves.

23. Learned Senior counsel for the respondents has drawn the attention of this Court towards the copy of report exhibit 4-Ka to substantiate that the report was given promptly. It is evident from the contents of Exhibit 4-Ka that the missing report was given by Devendra Singh on 26.04.2008, after more than 48 hours of the incident.

24. According to contents of 4-Ka, Devendra Singh has informed the Patwari of Saari on 26.04.2008 on telephone that his wife has gone missing since 25.04.2008. He made the entry. Respondent-Devendra Singh again made a written complaint on 28.04.2008.

25. PW4 Tajwar Singh has categorically stated in his examination-in-chief that he has visited Patwari and inquired whether any missing report has been filed by the respondents. Patwari told him that no report has been filed either in writing or orally. It is not believable why the husband of Sushila Devi not informed his mother-in-law. This is unusual conduct on behalf of the respondents.

26. It has come on record that Sushila Devi was harassed for bringing insufficient dowry by the respondents. Sushila Devi has told this fact to her parents and brothers. The respondents were demanding Rs.2.00 lakhs or to construct a house for them at Haridwar.

27. Learned Senior counsel appearing on behalf of the respondents has argued that Sushila remained most of the time with her parents. However, it has come on record that she used to stay with her parents 10-12 days and thereafter, used to go back to her in-laws house.

28. Learned Trial Court has erred in law that there was no sufficient time for the respondents to demand dowry. She was pursuing her studies in her ancestral village. There was sufficient time to ask for dowry as and when, she was with them.

29. The defence of the respondents is that Sushila had gone to fetch grass and fell into the Alaknanda River accidentally. The Court can take judicial notice of the fact that generally in villages there is group of girls, who go to forest to bring fodder and fuel wood.

30. PW10 Dr. Digvijay Singh has categorically deposed that deceased Sushila Devi has died due to coma and excessive bleeding due to ante mortem injuries. PW10 Dr. Digvijay Singh has categorically ruled out the death of Sushila Devi by drowning since no water was found in her lungs. What happened in this case is that Sushila Devi was killed by the respondents and thereafter, the dead body was thrown into the river to destroy the evidence.

31. Learned Senior counsel appearing on behalf of the respondents has argued that the respondents were living separately. However, it has come in the evidence their house was in a close proximity. The information was given to the mother of the deceased by the brother-in-law i.e. Jagdish Singh.

32. Learned Senior counsel appearing on behalf of the respondents has also argued that the respondent no.1- Devendra Singh has great love and affection with his wife. He is depositing Rs.100/- per month in her account. It has come on record that he has started depositing a sum of Rs.100/- w.e.f. 07.12.2007 till 24.04.2008.

33. Learned Senior counsel appearing on behalf of the respondents has put strong reliance on the statement of DW2 Prem Singh. DW2 Prem Singh, in his examination- in-chief has deposed that he was going in a bus at 12 noon and saw from a distance of half km. that a girl wearing red clothes had fallen in the river. The fact of the matter is that Sushila Devi has gone missing on 24.04.2008, thus, there was no occasion for him to see her falling in the Alaknanda River. She had gone missing on a.04.2008. Thus, it cannot be believed that she remained outside the house during whole night and fell in the river on next day. The statement of DW2 Prem Singh does not inspire confidence.

34. Sushila Devi has died within seven years of her marriage. She was harassed for bringing insufficient dowry. It is a case of dowry death. The respondents have conspired to kill Sushila Devi by hatching conspiracy to kill her and thereafter, destroyed the evidence by throwing the body into the river.

35. Their Lordships of Honble Supreme Court in (2010) 13 SCC 689, in the case of Satya Narayan Tiwari @ Jolly and another vs. State of Uttar Pradesh, have explained the term soon before the marriage which reads as under :-

28. There can be no quarrel with the proposition that the proximity test has to be applied keeping in view the facts and circumstances of each case. Regarding the aforesaid decision, the facts were somewhat different in that the deceased was not shown to have been subjected to cruelty by her husband for at least 15 months prior to her death. On the fact of that case, it was held that Section 304-B IPC was not attracted.

29. On the other hand, the present case fully answers the test of soon before. There is the testimony of demand of Maruti car being pressed by the two accused persons after about six months of the marriage of the deceased (which took place about three years before the incident) and of her being pestered, nagged, tortured and maltreated on non- fulfilment of the said demand which was conveyed by her to her parents from time to time on her visits to her parental home and on telephone. Things had reached to such a pass that on getting a message from her about three months before the incident, Surya Kant Dixit PW 1 accompanied by Jaideo Awasthi PW 2 had to go to her sasural in Farrukhabad in an attempt to dissuade the two accused from pressing such demand, but they (the two accused) humiliated them and turned them out of the house with the command not to enter their house again without meeting the demand of a Maruti car. He did not take any action on the consolation offered by the father-in-law of his daughter and also on the advice of his daughter. It was natural that the victim also did not want her father to take any extreme step against the two accused. She might have thought that things would improve with the passage of time but it seems that that did not happen.

30. Surya Kant Dixit PW 1 was in a helpless state after suffering humiliation at the hands of the accused persons about three months before the actual incident. He could simply wait and watch in the hope of things to improve, but the 24 situation did not improve at all. It, however, cannot be taken to mean that the demand made by the two accused persons had subsided or was given up by them. It can justifiably be inferred from what happened subsequently that they continued to torture the unfortunate lady because of non-fulfilment of the demand of Maruti car. In our opinion, the test of soon before is satisfied in the facts, evidence and circumstances of the present case.

55. We are of the view that the presumption of Section 113-B of the Evidence Act is attracted in this case and the discussion that we have made hereinabove makes it abundantly clear that the defence could not displace the said presumption. The culpability of the two accused in committing this crime is established to the hilt by the facts and circumstances proved by the prosecution. They undoubtedly are the authors of this crime.

57. To sum up, the prosecution has been able to prove the following: (1) The death of the deceased was caused by strangulation and burning within seven years of her marriage (2) The deceased had been subjected to cruelty by her husband and mother-in-law (the two appellant-accused) over the demand of Maruti car in dowry raised and persistently pressed by them after about six months of the marriage and continued till her death. (3) The cruelty and harassment was in connection with the demand of dowry i.e. Maruti car. (4) The cruelty and harassment is established to have been meted out soon before her death. (5) The two accused were the authors of this crime who caused her death by strangulation and burning on the given date, time and place.

58. In our opinion, the trial Judge recorded an acquittal adopting a superfluous approach without in depth analysis of the evidence and circumstances established on record. On thoroughly cross-checking the evidence on record and circumstances established by the prosecution with the findings recorded by the trial court, we find that its conclusions are quite inapt, unjustified, unreasonable and perverse. Proceeding on a wrong premise and irrelevant considerations, the trial court has acquitted the accused. The accused are established to have committed the offences under Sections 498-A and 304-B IPC and under Section 4 of the Dowry Prohibition Act and the findings of the High Court are correct.

36. Their Lordships of Honble Supreme Court in (2011) 4 SCC 427, in the case of Bachni Devi and another Vs. State of Haryana, have reiterated the principle and explained the term demand for dowry under Section 304- B IPC and presumption. Their Lordships have held that as under: -

12. For making out an offence of dowry death under Section 304-B, the following ingredients have to be proved by the prosecution: (a) death of a woman must have been caused by any burns or bodily injury or her death must have occurred otherwise than under normal circumstances; (b) such death must have occurred within seven years of her marriage; (c) soon before her death, she must have been subjected to cruelty or harassment by her husband or any relative of her husband; and (d) such cruelty or harassment must be in connection with the demand for dowry.

19. In the backdrop of the above legal position, if we look at the facts of the case, it is clearly established that Kanta died otherwise than under normal circumstances. There is no dispute of fact that death of Kanta occurred within seven years of her marriage. That Kanta was subjected to harassment and ill-treatment by A-1 and A-2 after PW 8 refused to accede to 26 their demand for purchase of motorcycle is established by the evidence of PW 8 and PW 9. Then there is evidence of PW 10 that PW 8 had called him and DW 1 to his house where A-1 had made demand of motorcycle. PW 10 stated that he sought to reason to A-1 about inability of PW 8 to give motorcycle at which A-1 got angry and warned that Kanta would not be allowed to stay in her matrimonial home. It is true that the appellants produced DW 1 in defence and he did state in his examination-inchief that he did not meet A-1 at the house of PW 8 but in the cross-examination when he was confronted with his statement under Section 161 CrPC (portion A to A) where it was recorded that he and PW 10 had gone to the house of PW 8 and both of them (PW 10 and DW 1) counselled A-1 to desist from demanding motorcycle but she stuck to her demand, DW 1 had no explanation to offer. The evidence of DW 1 is, therefore, liable to be discarded.

20. In the light of the evidence let in by the prosecution, the trial court cannot be said to have erred in holding that it was established that unlawful demand of motorcycle was made by A-1 and A-2 from PW 8 and Kanta was harassed on account of his failure to provide the motorcycle and that led Kanta to commit suicide by hanging. Pertinently, the demand of motorcycle by A-1 from PW 8 was for A-2 and when PW 8 showed his inability to meet that demand, A-2 started harassing and ill-treating Kanta. In this view of the matter, it cannot be said that there was no demand by A-2.

21. The High Court has also examined the matter thoroughly and reached the finding that A-1 and A-2 had raised a demand for purchase of motorcycle from PW 8; this demand was made within two months of the marriage and was a demand towards dowry and when this demand was not met, Kanta was maltreated and harassed continuously which led her to take extreme step of finishing her life. We agree with the above view of the High Court. There is no merit in the contention of the counsel for the appellants that the demand of motorcycle does not qualify as a demand for dowry. All the essential ingredients to bring home the guilt under Section 304-B IPC are established against the appellants by the prosecution evidence. As a matter of law, the presumption under Section 113-B of the Evidence Act, 1872 is fully attracted in the facts and circumstances of the present case. The appellants 27 have failed to rebut the presumption under Section 113-B.

22. For the foregoing reasons, we find no merit in the appeal and it is dismissed accordingly. Two months time is given to A-1 to surrender for undergoing the sentence awarded to her.

37. In 2016 (4) SCC Page 604, in the case of Gajanan Dashrath Kharate v. State Of Maharashtra ., their Lordships of Hon. Supreme Court have held that the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on the accused to offer explanation. In paragraph no.13, their Lordships have held as under: -

13. As seen from the evidence, appellant Gajanan and his father Dashrath and mother Mankarnabai were living together. On 7-4-2002, mother of the appellant-accused had gone to another Village Dahigaon. The prosecution has proved presence of the appellant at his home on the night of 7-4- 2002. Therefore, the appellant is duty-bound to explain as to how the death of his father was caused. When an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on the accused to offer. On the date of the occurrence, when the accused and his father Dashrath were in the house and when the father of the accused was found dead, it was for the accused to offer an explanation as to how his father sustained injuries. When the accused could not offer any explanation as to the homicidal death of his father, it is a strong circumstance against the accused that he is responsible for the commission of the crime.

38. In (2015) 4 SCC Page 393, in the case of Ashok

v. State of Maharashtra their Lordships of Hon. Supreme Court have held that initial burden of proof is on prosecution to adduce sufficient evidence pointing towards guilt of accused. However, in case it is established that accused was last seen together with deceased, prosecution is exempted to prove exact happening of incident as accused himself would have special knowledge of incident and thus, would have burden of proof as per Section 106 of the Evidence Act. Their Lordships have held as under: -

12. From the study of abovestated judgments and many others delivered by this Court over a period of years, the rule can be summarised as that the initial burden of proof is on the prosecution to bring sufficient evidence pointing towards guilt of the accused. However, in case of last seen together, the prosecution is exempted to prove exact happening of the incident as the accused himself would have special knowledge of the incident and thus, would have burden of proof as per Section 106 of the Evidence Act. Therefore, last seen together itself is not a conclusive proof but along with other circumstances surrounding the incident, like relations between the accused and the deceased, enmity between them, previous history of hostility, recovery of weapon from the accused, etc. non-explanation of death of the deceased, may lead to a presumption of guilt.

39. Accordingly, in view of the observations and discussion made hereinabove, the appeal is allowed. The judgment and order dated 17.04.2010, rendered by learned Sessions Judge, Rudraprayag in Sessions Trial No.18 of 2008 is quashed and set-aside. The accused-respondents, namely, Devendra Singh, Jagdish Singh and Smt. Kunja Devi are convicted under Section 498-A, 304-B and 120-B of IPC.

40. Let the convicts be produced before the Court for hearing on the quantum of sentence on October 05, 2017. Production warrant be accordingly prepared by the Registry of the Court ensuring the presence of the convicts for hearing on the quantum of sentence on the next date fixed.

41. Put up on October 05, 2017 for further orders.

42. Let a copy of this judgment along with LCR be sent back to the trial court for forthwith compliance. (Sharad Kumar Sharma, J.) (Rajiv Sharma, J.) NISHANT