Back
2012 Supreme(UK) 97
2012 (1) N.C.C. 598
UTTARAKHAND HIGH COURT
Hon'ble Mr. Chief Justice Barin Ghosh and Hon'ble Mr. Justice U.C. Dhyani
Criminal Appeal No. 191 of 2002
ALONGWITH Criminal Appeal No. 209 of 2002
JITENDRA KUMAR & ORS. – Appellants
Versus
STATE OF UTTARANCHAL – Opposite Party
Decided on : 23.03.2012
For the Appellant :Mr. S.K. Aggarwal, Sr. Adv. assisted by Mr. Swapnil Bisht, Advocate
For the Respondents:Mr. Amit Bhatt, Addl. Govt. Advocate
Headnote:(A) Dowry Prohibition Act, Sec. 3/4, I.P.C. 1860, Sec. 498A r/w Sec. 34, Sec. 304-B r/w 34, Sec. 302 and Sec. 201 r/w 34 — Dowry death — Within 7 years of marriage — Dying declaration of the deceassed proved — According to prosecution deceased was subjected to cruelty or harassment by her husband and her mother-in-law — Such cruelty/harassment was in connection with the demand for dowry (TV & Video) — Such demand continued and persisted till (soon before) her death — She was taken to her parental home by her father when he found that his daughter/victim sustained injuries in her matrimonial home — Held — As deceased died other than under normal circumstances — Therefore, there were elements of cruelty/harassment meted out to her soon before her death — Also, the ingredients of dowry death corroborated by informant/PW2 in his oral testimony.
(Paras 18, 29 to 33)
(B) Related witness — Evidence of — Validity — Held — PW2 supported prosecution version and said that victim's husband and her mother-in-law committed marpeet with victim because she did not bring VCR and Video in dowry. (Paras 12, 32)
(C) Dowry Prohibition Act, Sec. 3/4, I.P.C. 1860, Sec. 498A r/w Sec. 34, Sec. 304-B r/w 34, Sec. 302, Sec. 201 r/w 34 — Dowry death — According to Dying declaration of the deceased — Her mother-in-law /appellant quarreled with her everyday for not bringing VCR — And therefore, poured kerosene on victim and set victim on fire — At that time, victim and her mother-in-law alone were present at home — Held that victim being young lady must have tried to resist the move of mother-in-law and must have tried to save herself from the grip of mother-in-law who was aged 57 years when the occurrence took place — But, it appears that like a Hindu wife, victim tried to save her husband from the clutches of law — Therefore, she did not name her husband in dying declaration — Even if dying declaration of victim is kept aside, the facts and circumstances establish that Cruelty/harassment was meted out to victim by her husband and her mother-in-law — And such cruelty or harassment started after some days of marriage, continued or persisted soon before victim's death — Thus, no escape for the appellants —Prosecution had been able to make home the guilt of dowry death against the accused/appellants — Impugned judgment, warrants no interference, appeals of the appellants dismissed — Bail cancelled. (Paras 30 to 34)
¼v½ ngst izfr"ks/k vf/kfu;e] /kkjk 3@4] Hkkjrh; n.M lafgrk] 1860] /kkjk 498A lifBr /kkjk 34] /kkjk 304B lifBr 34] /kkjk 302] /kkjk 201 lifBr 34 & ngst e`R;q & 'kknh ds 7 lky ds Hkhrj & e`R;q le; dk dFku lkfcr & vfHk;kstu i{k ds eqrkfcd e`rd mlds ifr vkSj mldh lkl }kjk Øwjrk vkSj mRihM+u ds v/khu Fkh & bl rjg dh Øwjrk@mRihM+u ngst (T.V. & Video) ds lEcU/k esa Fkh & ;g ekax igys ls mldh ekSr rd dk;e Fkh & og vius firk ds lkFk mlds iSr`d ?kj ds fy, pyh x;h Fkh tc mUgksaus ;g ik;k fd mldh csVh@f'kdkj mlds oSokfgd ?kj esa mRihM+u dh f'kdkj Fkh & /kkfjr & e`rd dh e`R;q vU; lkekU; ifjfLFkfr;ksa ds vykok gqbZ Fkh & blds vykok] ngst e`R;q ds rRo PW2 dh ekSf[kd xokgh }kjk iq"V ¼ogk¡ Øwjrk mRihM+u ds rRo mldh ekSr ls igys gh Fks½A ¼izLrj 18] 29 ls 33½
¼c½ fj'rsnkj lk{kh & ds lk{; & oS/krk & vorfjr & PW2 us lefFkZr fd;k vfHk;kstu laLdj.k vkSj dgk fd ihfM+r dk ifr vkSj mldh lkl mlds lkFk ekjihV djrs Fks D;ksafd og ngst esa ohfM;ks vkSj T.V. ugha ykbZ FkhA ¼izLrj 12] 32½
¼l½ ngst izfr"ks/k vf/kfu;e] /kkjk 3@4] Hkkjrh; n.M lafgrk] 1860] /kkjk 498A lifBr 34] /kkjk 304B lifBr 34] /kkjk 302] /kkjk 201 lifBr 34 & ngst e`R;q & e`rd ds e`R;q le; ds dFku ds vuqlkj mldh lkl@vihykFkhZ mlds oh-lh-vkj- ugha ykus ij gj jkst ml ds lkFk >xM+rh Fkh & blfy, mldh lkl us ihfM+r ij feV~Vh dk rsy Mkyk vkSj vkx yxk nh & ml le; og o lkl vdsys ?kj ij ekStwn Fks & vorfjr & fd ihfM+r ,d ;qok efgyk Fkh ml dks lkl ds bl dne dk fojksèk djus dh dksf'k'k djuh pkfg, Fkh vkSj lkl tks 57 o"kZ dh Fkh] dh idM+ ls [kqn dks cpkus dh dksf'k'k djuh pkfg, Fkh & ysfdu ,slk yxrk gS fd ,d fgUnw iRuh dh rjg ihfM+rk us dkuwu ds paxqy ls mlds ifr dks cpkus dh dksf'k'k dh & blfy, e`R;q le; ds dFku esa mlus vius ifr dk uke ugha fy;k & ;gka rd fd vxj e`R;q le; ds dFku dks vyx j[kk tk, rc Hkh Øwjrk@mRihM+u dh LFkkiuk vkSj rF;ksa vkSj ifjfLFkfr;ksa ls lkfcr & tks fd mlds ifr vkSj mldh lkl }kjk 'kknh ds dqN fnuksa ds ckn 'kq# dj fn;k x;k Fkk tks fd ihfM+rk dh ekSr rd dk;e Fkk & bl izdkj] appellants dk dksbZ cpkvks ugha & vfHk;kstu i{k] vfHk;qDr@appellants ds f[kykQ ngst e`R;q ds vijk/k dks lkfcr djus esa l{ke & Impugned fu.kZ; esa dksbZ gLr{ksi ugha & vfHk;qDrksa dh tekur [kkfjtA ¼izLrj 30 ls 34½
(Per: U.C. Dhyani J.)
In the instant case, criminal law was set into motion on the complaint (Ext. Ka-6) dated 02.10.1987 of Somdutt Bharadwaj s/o Roop Chand r/o Mohalla Shekhupura within the jurisdiction of P.S. Kankhal, district Haridwar. Chik FIR (Ext. Ka- 12) was lodged on 02.10.1987 at 4:40 pm at P.S. Kankhal which was registered as case crime no. 108 of 1987 under Sections 498A, 307 IPC. Occurrence took place on 02.10.1987 at 10:30 am. The distance between the place of occurrence and P.S. concerned was 1/2 kilometer and hence there appeared to be no delay in lodging FIR.
2. It was the cousin of deceased who initiated proceedings by filing complaint (Ext. Ka-6). Prosecution story was that victim Hridyesh Kumari d/o Shri Chand Sharma r/o Mohalla Chakteerth Soron, district Eta (UP) was married to appellant Jitendra Kumar s/o Kanti Prasad r/o Mohalla Lalkuan, Kankhal, Haridwar in April 1982. They lived happily for a few days but after that appellant Jitendra Kumar and his mother, appellant Premlata started harassing the victim on account of bringing lesser dowry. Appellants demanded VCR. Victim could not resist harassment and went to her parental home. On the intervention of the relatives, victim came back to her appellant-husband.
3. On 2nd October, 1987 at 10:30 am, appellants (husband and mother-in-law of victim) set her on fire after pouring kerosene oil on her. She cried for help and came out of her house. Witnesses Nathhuram r/o Gauri Shankar, Dayaram s/o Lakshmi Chand and several others came on the spot and extinguished fire. Appellants dragged victim back into the house. In the meantime, informant also reached there. Informant saw his cousin in pathetic condition and she was admitted in G.D. Hospital, Haridwar. There were remote chances of her survival.
4. After investigation of the case, charge-sheet (Ext. Ka- 16) for the offences punishable under Sections 498A, 302, 201 IPC and Section 3/4 Dowry Prohibition Act was submitted against accused appellants. Charges for the offences punishable under Sections 498A read with Section 34 IPC, 304B read with Section 34 IPC, 302 IPC, 201 IPC read with Section 34 IPC and Section 3/4 Dowry Prohibition Act were framed against the accused persons by the trial court. As many as 14 witnesses were examined on behalf of prosecution. Statements of the accused-appellants were taken under Section 313 Cr.P.C. Three witnesses were examined on behalf of the accused-appellants. Both the accused Jitendra Kumar and Premlata were convicted by the trial court for the offences punishable under Section 304B IPC on 03.08.2002. They were sentenced to undergo imprisonment for life. Aggrieved against the impugned order dated 03.08.2002, appellants Jitendra Kumar and Premlata preferred present appeals.
5. Victim was married to appellant Jitendra Kumar in the year 1982 and the occurrence took place in the year 1982, hence incident took place within 7 years of their marriage. Postmortem report (Ext. Ka-7) suggests that victim died due to shock as a result of ante-mortem burns. Hence there is no hesitation in coming to the conclusion that victim died under unnatural circumstances.
6. Now the question arises whether victim was subjected to cruelty and harassment on account of non-fulfillment of dowry?
7. Fortunately for the prosecution, documentary evidence was made available in the instant case. Normally in dowry death cases oral evidence/circumstantial evidence is found on the file. Whether the court believes the same or not, that is a different matter. In a good number of cases dying declaration is also recorded. Whether the dying declaration inspires the confidence of the court or not, again depends from case to case. Further in a few cases the correspondence between the victim and her parents is also made available. In the present case such a correspondence has been made available by the prosecution. In letter Ext. Ka-1 victim wrote to her parents as follows:
“ ……………. you immediately rush to
