JUDGMENT M. Chaudhary, J.
1. This is a government appeal filed from the judgment and order dated 6.5. 2000 passed by 1 Additional Sessions Judge. Moradabad in sessions trial no. 1003 of 95 State v. Ram Chander and Ors. acquitting the accused, of the charge levelled against them under Sections 498A and 304B IPC and Section 3/4 Dowry Prohibition Act.
2. Brief facts giving rise to this appeal are that at 5: 10 p.m. on 12th of July 1995 Harish Chand, father of the deceased lodged an FIR at police station Bachchrayun, District Moradabad situate at a distance of some 3 Kms from village Dhunaura Khurd alleging that he married his daughter Asha with Madan Lal son of Ram Chandra resident of village Dhanauri Khurd within the limits of police station Bachchrayun according to Hindu rites some three years ago. But since the very inception of her marriage she was used to be harassed and tormented by her husband, parents in-law and 'nanad' Mithlesh for want of dowry; that some ten days prior to the occurrence Ram Chandra, father in-law of Asha went to his house at village Kaitvali Pandaki Amroha and asked him to give Rs. 50,000.00 cash as dowry and as he expressed his inability he left his daughter Asha at his house and got annoyed and went away. Some five days thereafter Ram Chandra went to his house to fetch his daughter in-law Asha and took her with him asking her father to send Rs. 50,000. 00 cash to him in dowry. On 12th of July 1995 Harish Chand learnt that his daughter Asha was beaten and strangulated to death by her husband, parents in-law and 'nanad' Mithlesh as their demand of Rs 50,000. 00 cash could not be satisfied by her parents. Then Harish Chand went to the house of in-laws of bis daughter and saw that Asha was lying dead and there were injury marks at her neck. The police registered a crime against all the four under Section 304B IPC and started investigation. Investigation of the crime was entrusted to Sri Naresh Pandey, circle officer Dhanaura. Immediately SI Satya Deo Singh went to the scene of occurrence and drew inquest proceedings on the dead body and prepared the inquest report (Ext Ka 2) and other necessary papers (Exts Ka 3 to Ka 6). He also collected vomit in a container lying near the dead body of Asha and prepared its memo (Ext Ka 8). Then he inspected the place of occurrence and prepared its site plan map (Ext Ka 9).
3. Autopsy on the dead body of Asha conducted by Dr Prabhat Kumar, Radiologist Central Police Hospital, Moradabad on 13.7 95 at 4:00 p.m. revealed below noted ante mortem injuries:
1. Contusion 17 cm x 13 cm on lower part of neck and upper part of chest in front underlying subcutaneous tissues and muscles were contused. Abrasions present on corners of lips and nose.
On internal examination brain and its membranes, both the lungs, larynx, pericardium, oesophagus, liver, pancreas, spleen and kidneys were found congested. Tracheal rings and larynx were fractured. The tongue was bitten by teeth in front.
The doctor opined that the death was caused due to asphyxia as a result of ante mortem strangulation.
4. Thereafter the case was investigated by CO Naresh Pandey. On 15th of August 1995 the crime was altered under Section 498A IPC and Section 3/4 Dowry Prohibition Act. He also recorded statements of the witnesses. Subsequently the crime was investigated by CO Ayodhya Prasad who after completing the investigation submitted charge sheet against the accused under Sections 304B and 498A IPC and Section 3/4 Dowry Prohibition Act.
5. After framing of charge against the accused the prosecution examined Harish Chand (PW 1), father of the deceased, Inder Singh i (PW 2) residing in close neighbourhood of Harish Chand and Hemendra Singh (PW 3) brother of the deceased in support of the prosecution version. PW 5 Dr Prabhat Kumar, Radiologist Police Hospital Moradabad who conducted autopsy on the dead body of Smt. Asha proved the post mortem report. PW 4 SI Satya Deo Singh who drew inquest proceedings on the dead body and, did other necessary things has proved the politic papers. PW 6 CO Ayodhya Prasad who after completing the investigation submitted charge sheet against the accused has proved the same.
6. The accused pleaded not guilty denying the alleged occurrence altogether and stating that they were got implicated in the case falsely. Accused Smt Hoshiyari stated that her daughter-in-law Asha died natural death due to illness.
7. The accused examined DW 1 Dr. Akhil Chandra Sri Vastava, a private medical practitioner. He stated that he had medically examined Smt. Asha on 26th of May 95 and at that time she was suffering from epilepsy and he had prescribed medicines to her. They also examined DW2 Kailash Chandra in their support who stated that Asha was married with Madan Lal in February 1988 and after some lime of her marriage it was known that Smt Asha was suffering with epilepsy.
8. On an appraisal of the parties' evidence on record the Additional Sessions Judge disbelieved the prosecution case holding that cruelty or harassment of the deceased by the accused and demand of dowry were not proved. The learned trial judge also held that she died a natural death due to illness as alleged by the defence. Resultantly, the accused were acquitted of the charge levelled against them under Sections 498A and 304B IPC and Section 3/4 of Dowry Prohibition Act.
9. Feeling dissatisfied with the impugned judgment the State preferred this appeal assailing acquittal of the accused.
10. We have heard Sri Z.K. Hasan learned AGA for the State appellant and Sri R.R. Singh assisted by Sri R.K. Khanna, learned counsel for the accused respondents.
11. After hearing the parties' learned counsel and going through the record of the case we are of the view that the impugned judgment is perverse and manifestly unreasonable as relevant and convincing evidence and material have been unjustifiably eliminated and, therefore, evidence has to be reappreciated for the purpose of ascertaining if any of the accused really committed any offence or not.
12. First, we would set out the essential ingredients of Section 304B IPC which are as follows:
13. Section 113B of the Evidence Act is also relevant for the case in hand. Section 304B IPC and Section 113B of the Evidence Act were inserted with a view to combat the increasing menace of dowry deaths. Section 113B of Evidence Act lays down a presumption as to dowry death. It reads that 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.
14. Expression 'soon before' would normally imply that interval should not be much between cruelty or harassment and the death in question. There must be existence of a proximate and live link between the effects of cruelty based on dowry demand and death of the victim.
15. The word ' dowry' in Section 304B IPC has to be understood as it is defined in Section 2 of the Dowry Prohibition Act. There are three on visions relating to dowry. First is before the marriage, second is at the time of marriage and the third is at any time after the marriage.
16. In the instant case, the prosecution has come with the case that Harish Chand married his daughter Asha with accused Madan Lal son of Ram Chandra some three years ago according to Hindu rites. PW 1 Harish Chand, father of the deceased and PW 2 Inder Singh, his neighbourer both consistently deposed that Asha was married with Madan Lal some four years ago. PW 3 Hemendra Singh, brother of the deceased stated that his sister Asha was married to Madan Lal according to Hindu rites on 19th of May, 1993. PW 6 circle officer Ayodhya Prasad who after completing the investigation submitted charge sheet against the accused deposed that the card of their marriage was given to the police during investigation and during the investigation it came to be ascertained that marriage of Asha with Madan Lal took place on 19th of May, 1993. The defence case is that Asha was married with Madan Lal in February 1988. The accused examined DW 2 Kailash Chandra in their defence. DW 2 Kailash Chandra stated that marriage of Asha with Madan Lal took place in February 1988 which is evidently false. In the instant case statements of the accused under Section 313 of the Code of Criminal Procedure, were recorded on 12th of February, 1997. That day accused Madan Lal told his age as 22 (twenty two) years. Thus according to Madan Lal himself in February 1988 he was only 13 years of age. It is unpaliable rather incredible that Madan Lal was married at the age of 13 years as even in those days usually marriages of boys did not take place unless they attained the age of 18 years. There was so much awakening in the villages that even girls aged 13-14 years were not thought of marriageable age. This very fact falsifies the defence case the Asha was married with Madan Lal in February 1988. Therefore, we find that Asha was married with Madan Lal in May, 1993. Admittedly she died in her matrimonial home on 12th of July 1995. The finding of the trial court is wholly erroneous and perverse that marriage had not taken place within seven years preceding the incident.
17. The trial judge held that Smt Asha was suffering of epilepsy and she died natural death due to the ailment with which she was suffering. But a perusal of the post mortem report goes to show that autopsy conducted by Dr Prabhat Kumar, Radiologist Central Police Hospital Moradabad on her dead body on 13th of July 1995 at 4:00 p.m. revealed ante mortem contusion 17 cms x 13 cms on lower part of her neck and upper part of chest on the front, and underlying subcutaneous tissues and muscles were contused. There were abrasions on corners of her lips and nose. On internal examination tracheal rings and larynx were found fractured. It all goes to show that considerable force was applied by her husband and parents-in-law and she was strangulated to death, and her death was homicidal. DW 2 Kailash Chandra who resided in his neighbourhood stated that the fateful day lic was working at his fields and he learnt there that wife of Madan Lal died due to fits. However a perusal of the inquest report goes to show that he was very much present at the house of accused Madan Lal when inquest proceedings were drawn by the sub-inspector on the dead body of Smt Asha as he was one of the 'Panchas' appointed by the police officer. The inquest report bears his signatures under the endorsement that in the opinion of 'Panchas' Asha a Devi was strangulated to death. It goes a long way to reflect that this witness Kailash Chandra (Dy 2) is not an honest and straightforward witness. The accused examined Dr Akhil Chandra Srivastava (DW 1) a private medical practitioner who deposed that Asha Devi was brought to him for treatment in May 1995 and at that time she was suffering of epilepsy. Admittedly Dr Akhil Chandra' Srivastava was a Psychiatrist and the ailment with which Asha was allegedly suffering had no concern with the medical science of neurology in which he used to practise. Neither PW 1 Harish Chand, father of the deceased nor her brother Hemendra Singh (PW 3) was given a suggestion even in their cross-examination by the defence counsel that at the time of marriage Asha was suffering with epilepsy. In view of the above state of evidence we find that the defence case that Asha wife of Madan Lal was suffering with epilepsy is palpably false. PW 1 Harish Chand deposed that at about 11:00 a.m. the alleged noon when he reached the house of in-laws of his daughter Asha she was lying dead in the 'verandah' having received injuries at her face, neck etc and none of her in-laws was present there and that sighting him accused Ram Chandra and Madan Lal ran away. When all the accused were questioned regarding inquest proceedings on the dead body of Asha by the sub-inspector they stated that they had ho knowledge thereabout. It is unintelligible and unfathomable that if Smt Asha died natural death then why her husband and parents-in-law were not present inside the house. Their absence from the house at the time the dead body of Smt Asha wife of Madan Lal and daughter-in-law of Ram Chandra and Smt Hoshiyari was lying inside the house speaks volumes about their guilt. Accused Madan Lal and Ram Chandra surrendered in the Court of Magistrate concerned on 24* of July 1995 and Smt Hoshiyari and her minor daughter Km Mithlesh on 28th of July, 1995. PW 3 Hemendra Singh deposed that funeral and last rites of Asha were performed by him. All these circumstances lent further assurance to the prosecution case. Thus the said finding recorded by the trial court is manifestly erroneous and contrary to evidence.
18. Regarding ill-treatment and demand of dowry, PW 1 Harish Chand, father of the deceased stated that he married his daughter Asha with Madan Lal and after 4- 5 days of her marriage she was brought to her parents' house; that after one year of her marriage her 'Gauna' ceremony was to take place and therefore her husband and father in-law came after one year of her marriage for her 'Vida' and at that time they were very annoyed and when he asked them to stay for one day and then to take Asha with them they refused and went back angrily that next day they came for 'Vida' but did not stay and Madan Lal took his wife Asha on motor cycle and as he asked that some household articles which he provided in 'Gauha' ceremony as 'Shagun' were to be taken, his 'Samdhi' refused to take the same telling that there was no necessity of all those things and then he sent those articles keeping the same in a rickshaw through his son who kept the same in the bus through which Asha's father-in-law Ram Chandra was returning to his house. He also stated that after one month of 'Gauna' ceremony! he went to see his daughter Asha and on meeting Asha complained of ill-treatment suffered by her at the hands of her husband and in-laws as she! was being harassed and, tormented by them for want of dowry and also because the demand of Rs 50,000. 00 cash in dowry was not satisfied by her parents and that as he expressed his inability to give Rs. 50,000.00 cash and asked her in-laws to send Asha with him they created a scene by taking off the ornaments put on by her and throwing the goods given by him in dowry. He further stated that about ten days prior to the said occurrence Ram Chandra taking his daughter Asha went to his house and demanded Rs. 50,000.00 cash in dowry; that again he expressed his inability to fulfill the demand; that then he left his daughter Asha at his house and went back angrily; that some five days thereafter he went to his house and took Asha with him asking him to send Rs 50,000. 00 cash demanded by them; that thereafter in the forenoon of 12th of July 1995 at about 11:00 a.m. he learnt that since demand of Rs 50,000. 00 cash could not be satisfied by him his daughter Asha was beaten by her husband and in-laws and strangulated to death; that then he went to the house of in-laws of his daughter at village Dhanauri Khurd and saw the dead body of his daughter Asha lying in the verandah and there were injury marks on front of her neck and chest and that then he sent information to his house regarding the incident and went to the police station and handed over written report of the occurrence to the police there. PW 2 Inder Singh and PW 3 Hemendra Singh corroborated him stating likewise on all the material points. All the three witnesses were subjected to searching and rambling cross-examination but nothing tangible could be brought on the record to shake their credibility.
19. It has been argued by the learned counsel for the accused respondents that the incident of alleged harassment taking place from time to time was neither reported to the police nor mentioned in the FIR. This contention of the learned counsel for the accused respondents is wholly lacking any merit. Such matters taking place in the early married life of the daughter are delicately handled by her parents, brothers etc in the hope that everything would normalize with the passage of time, and such events are not even discussed with outsiders or reported to the police. It is true that details of the alleged ill-treatment and harassment are not mentioned in the FIR, But there was no necessity of mentioning all these: matters in the FIR. Besides it, when the young married daughter was strangulated to death in her matrimonial home and her dead body was lying there unattended, her father must have got perturbed and confounded after seeing her in that condition and at that time whatever he thought necessary he mentioned in the FIR . Me categorically mentioned in the FIR that husband and in-laws of his daughter Asha were not satisfied with the dowry provided by him in the marriage and that since the very inception of her marriage she was used to be harassed and ill-treated for want of dowry by her husband. and in-laws. He could not be expected to draft the F.I.R. as a legal expert well versed in the art of litigation foreseeing the legal quibblings in a court of law.
20. The trial court also held that FIR lodged with me police was delayed by six hours and that it was scribed after deliberations with the police. This finding recorded by the trial judge is based on tenuous grounds. PW 1 Harish Chandra deposed that that he had gone to Dhanaura where at a hotel he learnt that a daughter-in-law was done to death at village Dhanauri Khurd; that then he went to the house of in-laws of his daughter Asha at Dhanuri Khurd and saw that Asha was lying dead in the verandah and there were injury marks on front of her neck and chest, and bamboos, cloth etc required for cremation were lying there; that sighting him Ram Chandra and Madan Lal fled away; that then he went to Dhanura and sent information to his family members at his house; that then he went to the police station to lodge FIR of the occurrence but he was asked by the police to give written report of the incident; that then he went at the level crossing situate at a short distance where he got report of the occurrence scribed by one Om Pal and that then he again went to the police station and handed over written report of the occurrence to the police there. Clerk constable Mangey Ram prepared check report on basis of the written report handed over at the police station and made entry regarding registration of the crime in the GD (Exts Ka 10 & Ka 11). PW 4 Satya Deo Singh who drew inquest proceedings on the dead body of Asha has proved the said papers. PW 1, Harish Chandra stated that that day he reached at the house of in-laws of his daughter Asha at about 11:00 a.m. FIR of the occurrence was lodged at the police station Bachhraun at 5:10 p.m. that very day. Under the circumstances finding of the trial court that there was delay of six hours in lodging FIR is absurd. It is very difficult for a father to maintain his mental equilibrium after seeing the dead body of his young married daughter strangulated to death in her matrimonial home and the dead body lying unattended. It appears that under some wrong impression he stated that he reached the matrimonial home of his daughter at 11:00 a.m. PW 1 Harish Chandra might not have the correct idea of time. It is quite possible that he might have reached there at 12:00 noon or so. However, considering all the facts we are of the view that there was delay of some 2-3 hours in lodging FIR of the occurrence at the police station which is not fatal to the prosecution case under the circumstances. A perusal of the FIR further goes to show that it is quite natural and spontaneous.
21. On carefully scanning the evidence on record which is above reproach of suspicion and considering the above discussed circumstances lending further assurance to the prosecution case we are of considered view that the trial judge committed grave error in doubting the prosecution evidence giving undue importance to matters of trivial and insignificant nature. Since the findings recorded by the trial court are perverse based on surmises and conjectures and on erroneous appreciation of evidence resulting in serious miscarriage of justice, the impugned judgment can not be sustained in law.
22. Regarding accused Mithlesh, her statement under Section 313 of the Code of Criminal Procedure was recorded in February, 1997 and at that time she told her age as 15 years. Thus at the time of occurrence she was a girl of tender age of 13 years only. She being the youngest female child of tender age in the family could hardly have any role to play in demand of dowry, heaping cruelty on the victim or causing her death by strangulation with application of violence to her
23. In view of foregoing reasons Mithlesh should be given benefit of doubt. Therefore her acquittal is affirmed. Accused Ram Chandra, Smt Hoshyari and Madan Lal are held guilty of offences punishable under Section 498A and 304B IPC and under Section 4 of the Dowry Prohibition Act.
24. The appeal is allowed in part and acquittal of accused Ram Chandra, Smt Hoshiyari and Madan Lal of the charge levelled against them is hereby set aside. All the three are convicted under Sections 498A and 304B IPC and under Section 4 of Dowry Prohibition Act and each of them is sentenced to undergo rigorous imprisonment for two years under Section 498A IPC, for ten years under Section 304B IPC and for six months under Section 4 of Dowry Prohibition Act. All the sentences shall run concurrently. Accused Ram Chandra, Smt. Hoshiyari and Madan Lal are on bail. Their bail bonds are hereby cancelled. Acquittal of accused respondent No. 4 Mithlesh is affirmed. She is on bail. Her bail bonds are hereby discharged.
25. Let judgment be certified to the court below. Record of the case be transmitted to the lower court immediately for necessary compliance under intimation to this court within two months. Chief Judicial Magistrate Moradabad is directed to get accused Ram Chandra, Smt Hoshiyari and Madan Lal arrested and lodged in jail to serve out the sentence imposed upon them.