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2005 Supreme(UK) 377
2007 N.C.C. 153
UTTARANCHAL HIGH COURT
Hon’ble Mr. Justice J.C.S. Rawat
MOHAN PRASAD & ORS. – Appellants
Versus
STATE OF UTTARANCHAL – Respondent
Criminal Appeal No. 09 of 2002
With Criminal Appeal No. 16 of 2002
Decided on : 31.08.2005
For the Appellants :Mr. P.S. Adhikari, Sr. Advocate, assisted by Mr. B.S. Adhikari, Advocate
For the Respondent: Mr. D.K. Sharma, Learned G.A.
Headnote:(A) Indian Evidence Act 1872 - Sec. 113-B — Presumption as dowry death — When the ingredients of Sec. 304-B of Indian Penal Code are established a presumption of dowry death shall be drawn against the accused U/Sec 113-B of Indian Evidence Act — It has been kept in mind that a presumption U/Sec 113-B of Evidence Act is a presumption of Law — If the prosecution establishes the ingredients of Sec. 304-B of I.P.C. the presumption U/Sec 113-B Indian Evidence Act will arise in favour of the prosecution — This presumption is rebuttable. (Para 10)
(B) Criminal Procedure Code 1973 - Sec. - 154 — Incident took place on 23.2.2001 father of the deceased reached at the matrimonial house on 24.2.2001 - and same day he returned to Rudraprayag — On 25.2.2001 he went to his home and narrated the incident to his wife — On 26.2.2001 he again went to Rudraprayag — So F.I.R. lodged on the written report of the informant after a delay of 3 days — Informant admitted that the written report was prepared by an Advocate — F.I.R. lodged after consultation after delay of 3 days created doubt on the prosecution case. (Para 24)
(C) Indian Evidence Act, 1872 - Sec. 27 — Incident took place on 23.2.01 — Recoveries of Danda and blade were made on 10.4.2001 after a lapse about 1½ month from the date of incident — Danda alleged to have been used in commission of offence was recovered by police at the instance of accused U/Sec. 27 of the Indian Evidence Act — Danda was recovered near the temple of Latu Devta and blade was recovered from Public funeral place — Investigating officer recorded statement of the accused on 27.3.2001 and recovered the blood stained shirt from the possession of the accused on the same date — Investigating officer stated in his evidence that he had not prepared memorandum of the disclosure statement and nor the recovery memo of the alleged recovery was made by him — Its alleged recovery was doubtful and the first ingredient to attract Sec. 27 of the Indian Evidence Act was lacking.
(Paras 12, 13, 14)
¼v½ Hkkjrh; lk{; vf/kfu;e 1872 & /kkjk 113&c & ngst gR;k dh mi/kkj.kk & tc /kkjk 304&c Hkkjrh; n.M lafgrk ds vko';d rRo LFkkfir gks pqds gSa rks ngst gR;k dh mi/kkj.kk vfHk;qDr ds fo#) /kkjk 113&c Hkkjrh; lk{; vf/kfu;e ds vUrxZr ys[kc) dh tk;sxh & ;g fnekx esa j[kus ;ksX; gS fd /kkjk 113&c Hkkjrh; lk{; vfèkfu;e ds vUrxZr mi/kkj.kk fof/k dh mi/kkj.kk gS & ;fn vfHk;kstu us /kkjk 304&c Hkkjrh; n.M lafgrk ds vko';d rRo fl) dj fn;s gSa rks /kkjk 113&c Hkkjrh; lk{; vfèkfu;e dh mi/kkj.kk vfHk;kstu ds i{k esa tk;sxh & ;g mi/kkj.kk [k.Muh; gSA
¼izLrj 10½
¼c½ n.M izfd;k lafgrk 1973 & /kkjk 154 & ?kVuk fnukad 23-2-2001 dks ?kfVr gqbZ & e`rdk dk firk fnukad 24-2-2001 dks mlds nkEiR; fuokl ij igqapk & vkSj mlh fnu og #æiz;kx okfil ykSV vk;k & fnukad 25-2-2001 dks og vius ?kj igqapk vkSj viuh iRuh dks iw.kZ ?kVuk lqukbZ & fnukad 26-2-2007 dks og nksckjk #æiz;kx x;k & bl izdkj izFke lwpuk fjiksVZ] bfRryk nsus okys dh fyf[kr fjiksVZ ij 3 fnu ds i'pkr nk;j dh xbZ & bfRryk nsus okys us Lohdkj fd;k gS fd fyf[kr fjiksVZ vf/koDrk }kjk rS;kj dh xbZ Fkh & izFke lwpuk fjiksVZ ijke'kZ ds i'pkr 3 fnu ckn nk;j dh xbZ & tks fd vfHk;kstu ds okn dks lafnX/k lkfcr djrh gSA ¼izLrj 24½
¼l½ Hkkjrh; lk{; vf/kfu;e 1872 & /kkjk 27 & ?kVuk fnukad 23-2-2001 dks ?kfVr gqbZ & MUMk vkSj CysM fnukad 10-4-2001 dks ?kVuk ds yxHkx 1½ ekg i'pkr cjken gq;s & MUMk tks fd e`R;q dkfjr djus esa iz;ksx djuk dgk x;k gS iqfyl }kjk /kkjk 27 Hkkjrh; lk{; vf/kfu;e ds rgr vfHk;qDr dh fu'kkunsgh ij cjken fd;k x;k gS & MUMk yVVw nsork efUnj ds ikl rFkk CysM 'ke'kku Hkwfe ds ikl ls cjken fd;s x;s gSa & vUos"k.k vf/kdkjh us vfHk;qDr dk dFku fnukad 27-3-01 dks vfHkfyf[kr fd;k rFkk mlh fnu mlds dCts ls [kwu ds /kCcs okyh deht Hkh cjken dh xbZ & vUos"k.k vf/kdkjh us vius lk{; esa dgk gS fd mlus u rks vfHk;qDr ds izdVhdj.k c;ku dk Kkiu vfHkfyf[kr fd;k vkSj u gh cjkenxh eheks gh rS;kj dh xbZ & ;g lc cjkenxh dks lansgiw.kZ cukrh gS & vkSj /kkjk 27 ds izFke vko';d rRo dks gh 'kwU; cukrh gSA ¼izLrj 12] 13] 14½
These two criminal appeals have been preferred against the common judgment and order dated 20.12.2001 passed by Sri R.K. Sharma the then Sessions Judge, Rudraprayag in S.T. No. 13 of 2001 and S.T. No. 25 of 2001 whereby the learned Sessions Judge convicted and sentenced the appellant Vinod Prasad to undergo R.I. for a period of ten years u/s 304 B IPC, two years RI u/s 498 A IPC and two years RI u/s 201 IPC. Each of the appellants Mohan Prasad, Smt. Basanti Devi and Km. Seema were convicted and sentenced u/s 498 A IPC to undergo one year RI and a fine of Rs. 500/- and they were also convicted and sentenced u/s 201 IPC to undergo one year RI and a fine of Rs. 500/- In default of payment of fine each of the appellant to undergo additional two years S.I. All the sentences were ordered to run concurrently.
2. The prosecution case, in brief, is that the marriage of Smt. Meena daughter of Bhupendra Prasad Maithani (PW-1) was solemnized on 18.4.2000 with the appellant Vinod Prasad according to Hindu rites. After the marriage Vinod Prasad (husband), Mohan Prasad (father-in-law), Smt. Basanti Devi (mother-in-law) and Km. Seema (sister-in-law) of the deceased Meena started demanding Disk T.V. and 10 Tolas of gold. When the above demand was not fulfilled they committed the murder of Meena on 23.2.2001 who was pregnant. Smt. Meena was M.A. and was working as Nurse in a center at Kanda. On 24.2.2001 at 1.00 p.m. a telephonic message was received from her in-laws regarding the illness of Meena. Bhupendra Prasad Maithani (PW-1) reached at Kanda at 6 p.m. her saw her daughter lying on the cot in dead condition. On 26.2.2001 when the complainant went at the head quarter of Patwari to lodge the report he was informed that his daughter's dead body was cremated without informing the police and without conducting the post-portem and disappearance of the evidence of offence was caused.
3. The matter was reported at Patwari patti by Bhupendra Prasad Maithani (PW-1) by submitting written report (Ex. Ka 1) on 26.2.2001 at 2 p.m. on the basis of which Puran Lal Patwari (PW-4) prepared chick report (Ex. Ka 3) and a case was registered vide Ex. Ka 5. He conducted the investigation. He visited the place of occurrence and prepared site plan Ex. Ka 5. Thereafter the investigation was conducted by Dwarika Prasad Bhatt (PW-7) Naib Tehsildar who prepared Fard Ex. Ka 6 and Ex. Ka 7. He prepared site plan (Ex. Ka 8). He arrested the appellants vide memos Ex. Ka 9 to Ex. Ka 11. Thereafter the investigations were transferred to Thakur Singh Rawat PW-8 incharge S.P. After completing the formalities of investigation the submitted chargesheets Ex. Ka 17 and Ex. Ka 18 against the appellants.
4. Charge was framed against the appellants 120 B IPC, 498 A, 304 B IPC and 201 IPC to which the appellants pleaded not guilty and claimed to be tried.
5. The prosecution in support of its case examined PW-1 Bhupendra Prasad Maithani, PW-2 Smt. Madambari Devi, PW-3 Dineshwari witnesses of fact, PW-4 Puran Lal Patwari, PW-5 Rajendra Singh, PW-6 Chandra Singh postman who proved the letter of the deceased Ex. Ka 2, PW-7 Dwarika Prasad Bhatt and PW-8 Thakur Singh Rawat are the Investigating Officers.
6. In the statement recorded u/s 313 Cr.P.C. the appellants denied the prosecution case and stated that they had been falsely implicated in this case. The appellant produced Narain Dutt as DW-1, Jamuna Prasad DW-2, Rakesh Gairola DW-3, Hukum Singh DW-4 and Smt. Brij Bala DW-5, Handwriting Experts DW-5 in their defence.
7. The learned Trial court after appraisal of the evidence on record found the appellants guilty and convicted and sentenced the appellant as mentioned above.
8. I have heard learned counsel for the parties and perused the record.
9. At the outset, it need to mention here that in order to seek the conviction under Section 304B I.P.C. against a person for the offence of the dowry death, the prosecution is obliged to prove that :
1. The death of woman was caused by b
