JUDGMENT Imtiyaz Murtaza, J.
1. This appeal has been filed against the judgment and order dated 18.2.2005 passed by Addl. Sessions Judge Fast Track Court No. 4 Budaun whereby the appellant is convicted under Section 304B I.P.C. and sentenced to undergo life imprisonment, under Section 498A I.P.C. and sentenced to imprisonment for two years and a fine of Rs. 3000/-, in default of payment of fine further imprisonment for six months and under Section 4 of Dowry Prohibition Act and sentenced to imprisonment for one year and a fine of Rs. 1500/-, in default of payment of fine further imprisonment for three months. All the sentences were directed to run concurrently.
2. The brief facts of the case, mentioned in the report lodged by Satypal Singh, are that he had married his daughter Resham with the appellant in the year 1998. Ten days after the marriage Sanjay told his daughter that her father had not given him T.V. and Motor Cycle and asked her to bring T.V. and Motor Cycle. About 15 days back he had gone to bring his daughter and she told him that her brother-in-law Jaiveer, his wife Madhu and her husband told her that his father had not given him T.V. and Motor Cycle and they did not send his daughter. On the date of occurrence Jasveer came to his house and told him that his daughter Resham is dead. He alongwith several villagers reached Duptakala. Khichchu and Bharat told him that his daughter has been killed by administering poison. He had lodged the report at the police station Rajpura on 6.7.1998 at 12.30 p.m. against appellant, Jaiveer and Smt. Madhu. After the registration of the case S.I. Shiv Gopal Verma reached at the police station. The investigation was handed over to C.O. Gunnaur and on his dictation he had prepared inquest memo and after preparing the relevant papers for the post mortem examination the dead body was handed over to constable Devendra Pal Singh and Shailendra Singh. On the dictation of C.O. Gunnaur he had recorded the statement of informant, inquest witnesses, prepared the site plan, which is Ext. Ka-5, sample seal is Ext. Ka-6, Chalan Lash is Ext. Ka-7, Photo Lash Ext. Ka-8, letter to C.M.O. Ext. Ka-9, letter to R.I. is Ext. Ka-10. He had also recorded the statement of the scribe of the F.I.R. and after the investigation charge sheet was submitted against the appellant.
3. The post mortem on the dead body of the deceased was conducted by Dr. Neel Kamal, P.W. 3 and no external mark or ante mortem injury was seen and cause of death could not be ascertained and viscera was preserved. In the report of Scientific Laboratory Aluminum phosphide and Methyl Alcohol was found in the viscera.
4. After the submission of the charge sheet the case was .. committed to the court of Session and the Sessions Judge had framed charges against the appellant and two co-accused under Section 498A, 304B I.P.C. and Section 4 of Dowry Prohibition Act.
5. The prosecution had examined five witnesses in all. P.W. 1 Satypal Singh, P.W. 2 Bharat Singh, P.W. 3 Dr. Neel Kamal, P.W. 4 Pushpal Singh, and P.W. 5 S.V. Verma. Rajvir Singh was examined as Court witness. The defence has examined two witnesses, namely, Dr. P.K. Raghuvanshi, D.W. 1 and Ramdeo, D.W. 2.
6. The Sessions Judge after considering the evidence on record convicted the appellant, as aforesaid, and acquitted co-accused Jaiveer and Smt. Madhu. Hence this appeal.
7. P.W. 1 Satypal Singh deposed that he had married his daughter Resham with Sanjay, appellant about 4-5 years back. The accused used to demand a Motor Cycle and T.V. from his daughter. He had received information about the death of his daughter from Jasveer Singh who is elder brother of Jaiveer Singh. After hearing the news about the death of his daughter he reached alongwith his brother Vichchpal and several other villagers. He was informed by Kichchu, Bharat and other villagers that she has been killed by administering poison. The dead body of his daughter was lying under the Chhappar. He had gone to the police station after preparing the F.I.R. and lodged the same at the police station. The F.I.R. is Ext. Ka-1.
8. P.W. 2 Bharat Singh deposed that Sanjay was married with Resham about 4-5 years back. The father of Resham did not give any dowry and the accused had not demanded any dowry. He had not supported the prosecution case and was declared hostile.
9. P.W. 3 Dr. Neel Kamal conducted the post mortem of the deceased and proved the samet.
10. P.W. 4 H.C. Pushpal Singh deposed that on 6.7.1998 he was posted as Head Moharrir at the police station. He had prepared the chik report on the basis of the report lodged by Satpal at 12.20 p.m. The Chik F.I.R. is Ext. Ka-3 and he has also prepared the G.D. entry copy of the G.D. entry is Ext. Ka-4.
11. P.W. 5 S.I. Shiv Gopal Verma deposed that on 6.7.1998 he was posted as S.I. He had prepared the relevant papers for the post mortem and recorded the statements of the witnesses on the direction of the C.O.
12. C.W. 1 Rajveer, Assistant Director, Vidhi Vigyan Prayogshala proved the viscera report which shows that Aluminum phosphide and Methyl Alcohol was found in the viscera.
13. D.W. 1 Dr. Pradeep Kumar Raghuvanshi deposed that he was treating Resham. He had examined her on 306.1998 and again on 4.7.1998.
14. D.W. 2 Ramdeo Sharma deposed that he was neighbor of Sanjay and Jaiveer. Resham had died in the month of July, 1998. She was ill and was suffering with stomach pain and died because of her pain.
15. The Sessions Judge relying upon the prosecution evidence convicted and sentenced the appellant, as aforesaid.
16. We have heard Shri R.R. Singh, Advocate for the appellant and Shri A.K. Singh, learned A.G.A. for the State and perused the entire record.
17. Learned Counsel for the appellant submitted that: the allegations with regard to demand of dowry is not reliable; there was no motive on the part of the appellant to administer poison; and other co-accused against whom similar allegations were made have been acquitted by the trial court. On the contrary, learned A.G.A. submitted that the marriage of the appellant took place in the year, 1998 and the deceased died an unnatural death within 7 years of her marriage and there is evidence on the record of demand of dowry soon before her death and she was also subjected to cruelty.
18. The Sessions Judge has rightly convicted the appellant under Section 304B I.P.C.
19. Section 304B is being reproduced below:
304-B. Dowry Death.- (1) Where the death of a woman is caused by any bums 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.
Explanation- for the purpose of this sub-section, "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibiton Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.
The parliament has also inserted Section 113B of the Indian Evidence Act by Act No. 43 of 1986 with effect from 1.5.1986 which Breads as under:
113B-Presumption as to dowry death- 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 had 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.
Explanation- For the purposes of this section, "dowry death" shall have the same meaning as in Section 304B of the Indian Penal Code (45 of 1860)."
From a conjoint reading of Section 304B of the India Penal Code and Section 113B of the Indian Evidence Act, it will be apparent that a presumption arising thereunder will operate if the prosecution is able to establish the circumstances as set out in Section 304 of the Indian Penal Code.
The ingredients of the aforementioned provisions are:
(1) That the death of the woman caused by any burns or bodily injury or in some circumstances which is not normal; (2) Such death occurs within 7 years from the date of her marriage (3) That the victim was subjected to cruelty or harassment by her husband or any relative of her husband; (4) Such cruelty or harassment should be for or in connection with demand of dowry, and (5) is established that such cruelty and harassment was made soon before her death.
20. In this case the evidence of P.W. 1 Satypal Singh is relevant. He had lodged the first information report and the case of the prosecution is that the marriage of Resham, deceased with Sanjay was solemnized in the month of May, 1998 and she died in the month of July, 1998 and this fact is also not disputed by the defence. The appellant did not deny in his statement that marriage had not taken place in the year 1998 nor any suggestion was given to P.W. 1 regarding the date of marriage. P.W. 2 Bharat Singh who was declared hostile had also corroborated the testimony of P.W. 1 regarding the year of marriage, therefore, the Sessions Judge has rightly held that the marriage had taken place in the year 1998 and she died also in the same year, within seven years of her marriage. The other ingredient of the offence about the demand of dowry is that in the first information report it was mentioned that Sanjay had demanded a Motor Cycle and a T.V. within 10 days of marriage. The informant had also mentioned that 15 days prior to the death of Resham he had gone to bring her from the house of her in-laws but she was not sent on account of non fulfillment of demand of a Motor Cycle and a T.V. P.W. 1 Satypal had fully corroborated the allegations made in the F.I.R. His testimony regarding demand of dowry inspires confidence and we do not find any reason to disbelieve his statement regarding demand of dowry.
21. It was pointed out by the learned Counsel for the appellant that in the F.I.R. it was alleged that demand was made to the deceased but in court P.W. 1 Satypal stated that demand was made directly to him. We do not find any such contradiction to disbelieve the testimony of P.W. 1 Satypal Singh. The articles of the demand are consistent in the F.I.R. as well as in the testimony recorded in the court. There may be some minor contradiction in the statement of P.W. 1 because his statement was recorded after five years of the occurrence. The Sessions Judge has rightly placed reliance on the testimony of P.W. 1 Satya Pal. The medical evidence shows that the deceased died unnatural death. The viscera report shows that Aluminum phosphide and Methyle Alcohol was found and it was an unnatural death. The offence under Section 304B I.P.C. is fully made out against the appellant.
22. Learned Counsel for the appellant contended that on the basis of the testimony of P.W. 1, Sessions Judge had already acquitted two other persons against whom similar allegations were made. We have considered this submission of the counsel. The Sessions Judge had acquitted the other co-accused not on the ground of disbelieving the testimony of P.W. 1 but on the ground that the Public Prosecutor did not properly examined P.W. 1 Satypal and no effort was made to find out the names of the other co-accused, therefore, the other co-accused were acquitted by the Sessions Judge. This submission of the learned Counsel for the appellant has no substance because the Sessions Judge did not doubt the participation of other accused. The Sessions Judge acquitted the other co-accused because their names were not disclosed in the testimony of P.W. 1 due to fault of the public prosecutor, therefore, this submission of learned Counsel for the appellant is rejected.
23. Lastly, the counsel for the appellant prayed that the sentence imposed on the appellant under Section 304B I.P.C. is in excess and be reduced and it was also submitted that the appellant was not solely responsible for the death of the deceased. Having regard to the facts and circumstances of the case the sentence imposed upon the appellant under Section 304B I.P.C. is reduced to a period of 7 years.
24. For the reasons stated above, the appeal is partly allowed. The conviction of the appellant is maintained. However, the sentence under Section 304B I.P.C. is modified and instead of life imprisonment he is sentenced to undergo imprisonment for 7 years. The conviction and sentences of the appellant under Section 498A I.P.C. and 4 of Dowry Prohibition Act awarded by the trial court is maintained. The appellant is in jail. He shall be kept there to serve out the sentences awarded by the trial and modified by us. The appellant is entitled to set off the period of sentence already undergone.
25. Office is directed to send a copy of this order to the C.J.M. Budaun for necessary compliance.