CRLA/372/2004
2023 Latest Caselaw 1247 UK

      IN THE HIGH COURT OF UTTARAKHAND
                 AT NAINITAL


           THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA


                     04TH MAY, 2023

           CRIMINAL APPEAL NO. 372 of 2004

Between:

1. Manoj Kumar Chamoli alias Sonu

2. Smt. Pushpa Chamoli                         ...Appellants

and

State of Uttarakhand.                         ...Respondent



Counsel for the Appellants :   Mr. Ramji Shrivastava,
                               Advocate.

Counsel for the Respondent:    Mr. S. S. Adhikari,
                               Deputy Advocate General
                               assisted by Mr. B.S. Thind
                               Brief Holder for the State.


Upon hearing the learned counsel for the parties, this
Court made the following judgment :

Hon'ble Alok Kumar Verma,J.

The instant Appeal has been filed by the

appellants-accused persons against the judgment dated

16.12.2004, passed by learned Sessions Judge, Dehradun

in Sessions Trial No.236 of 2000, "State vs. Manoj Kumar

Chamoli and three Others", whereby, the appellants have

been convicted for the offence punishable under Sections

304 B, 498A of the Indian Penal Code, 1860 (for short,

"IPC") and Section 4 of the Dowry Prohibition Act, 1961

and have been sentenced to undergo rigorous

imprisonment for a period of seven years for the offence

punishable under Section 304 B IPC; they have been

sentenced to undergo rigorous imprisonment for a period

of one year for the offence punishable under Section 498A

IPC, and, they have been further sentenced to undergo

rigorous imprisonment for a period of six months for the

offence punishable under Section 4 of the Dowry

Prohibition Act, 1961 (hereinafter referred to as "Act,

1961"). All the sentences have been directed to run

concurrently.

2. Briefly stated the prosecution story as it

emerges from re-appreciation of the evidence on record is

that the deceased Smt. Sudha was married with Ved

Prakash Chamoli on 14.04.2000. The parents of the

deceased had given domestic articles according to their

capacity, but, after the marriage, the appellant Manoj

Kumar Chamoli, brother-in-law (Devar) and the appellant

Smt. Pushpa Chamoli, sister-in-law (Nanad) demanded

scooter and color TV. She was being harassed and

tortured on that pretext. The deceased Smt. Sudha

informed about her harassment to her mother, however,

her mother did not tell these things to her husband

because they have two other un-married daughters. The

deceased also reported about the harassment to her

younger sister and informed her that the accused Manoj

Kumar Chamoli and Smt. Pushpa Chamoli will kill her.

Informant Guru Prasad Bijalwan, (P.W.1), father of the

deceased, was informed that his daughter had committed

suicide. His son-in-law and family members did not give

any information about the incident. Appellant Manoj

Kumar Chamoli had illicit relationship with his tenant Smt.

Veenu Verma. The deceased asked the husband of Smt.

Veenu Verma regarding the illicit relationship of his wife

with the appellant Manoj Kumar Chamoli and asked them

to vacate the house. After this allegation, Smt. Veenu

Verma consumed poison but somehow she survived.

However, they vacated the house on 30.06.2000, but, the

illicit relationship between Smt. Veenu Verma and the

appellant Manoj Kumar Chamoli continued. The deceased

was obstacle between their relationship. Appellant Manoj

Kumar Chamoli harassed the deceased on account of

dowry as well as illicit relations. Appellants along with Ved

Prakash Chamoli, the husband of the deceased, and Smt.

Veenu Verma killed his daughter on 20.07.2000 and

showing as it is the case of the suicide. With the said

allegations, (P.W.1) Guru Prasad Bijalwan lodged the chick

FIR (Ext.Ka.12) through his written report (Ext.Ka1) dated

22.07.2000. Inquest proceedings and post-mortem

examination of the dead body of the deceased was

conducted on 21.07.2000. The First Information Report

was registered on 22.07.2000. P.W.7. Anil Kumar Yadav,

the Circle Officer, Rishikesh conducted the investigation of

the case. The investigation was transferred to Mr. K.K

Gautam, the Circle Officer of Police. Charge-sheet (Ext.

K17) was filed against the present appellants along with

Mr. Ved Prakash Chamoli and Smt. Veenu Verma.

3. The case was committed to Court of Session.

Appellant Mr. Manoj Kumar Chamoli, Smt. Pushpa Chamoli

along with Mr. Ved Prakash Chamoli, the husband of the

deceased, were charged for the offence under Section 304

B, 498A IPC and Section 4 of the Act, 1961. Smt. Veenu

Verma was charged for the offence under Section 120B

IPC. They pleaded not guilty and claimed to be tried.

4. The prosecution in order to establish the

charges, examined altogether ten witnesses.

5. The statements, under Section 313 of the Code

of Criminal Procedure, 1973 were recorded.

6. Learned Trial Court heard arguments,

appreciated his evidence on record and held that the

prosecution has been successful to prove its case against

the appellants beyond all reasonable doubts, whereas,

learned Trial Court held that the prosecution has not been

successful to prove its case against Ved Prakash Chamoli,

the husband of the deceased, and, Smt. Veenu Verma

beyond all reasonable doubt, therefore, these two persons

were acquitted.

7. Heard Mr. Ramji Shrivastava, learned counsel

for appellants and Mr. S.S. Adhikari, learned Deputy

Advocate General with Mr. B.S. Thind, learned Brief Holder

for the State, and, perused the record.

8. Mr. Ramji Shrivastava, learned counsel for the

appellants, submitted that the appellants have been

implicated in this matter; appellants were Devar and

Nanad of the deceased and they had no concern with the

personal life of the deceased; the husband of the deceased

has been acquitted and no appeal has been filed by the

State against the said acquittal; the alleged incident took

place on 20.07.2000; the First Information Report was

lodged on 22.07.2000; there is no satisfactorily

explanation about this delay; at the time of the inquest

proceedings, the father of the deceased was present there,

but, he did not say anything about the demand of dowry;

after well thought and consultation, the informant set up a

dowry story of demand of dowry; no external injury was

found on the dead body of the deceased; the conviction is

based only on the testimony of the interest witnesses, who

are the blood relatives of the deceased; there are several

contradictions which are found in the statement of the

prosecution's witnesses; the deceased has committed

suicide by hanging herself with ceiling fan, however, there

are no evidence against the appellants; the relations

between the deceased and the members of the family of

the husband are cordial which is apparent from the perusal

of the evidence of the father of the deceased; the Trial

Court wrongly interpreted the evidence.

9. On the other hand, Mr. S. S. Adhikari, learned

Deputy Advocate General appearing for the State,

supported the impugned judgment. However, he fairly

conceded that the State has not filed any appeal against

the acquittal of Ved Prakash Chamoli, the husband of the

deceased and Smt. Veenu Verma.

10. I have carefully assessed the evidence, adduced

by the prosecution.

11. Section 304 B IPC lays down that where the

death of a woman is caused by any burns or bodily injury

or occurs otherwise than under normal circumstances

within seven years of her marriage and it is shown that

soon before the death of the woman she was subjected to

cruelty or harassment by her husband or his relatives for,

or in connection with, any demand for dowry, such death

shall be called "dowry death", and her husband or his

relatives shall be deemed to have caused for death.

12. The ingredients for dowry death are -

(i) There is a married lady;

(ii) She has died unnatural death including death

by burns or by bodily injury or by poisoning

etc.;

(iii) Such a death has occurred within seven

years of the marriage; and

(iv) It must be found that soon before her death

she was subjected to cruelty or harassment for,

or in connection with any demand for dowry by

her husband or any of his relatives.

13. The provisions of Section 113 B of the Indian

Evidence Act, 1872 enjoin upon the court to draw

presumption of dowry death on proof of circumstances

mentioned therein. The presumption shall be raised only

on the proof of the following ingredients :-

(i) The question before the court must be whether

the accused has committed the dowry death of a

woman;

(ii) The woman was subjected cruelly or harassment

by her husband or his relatives.

(iii) Such cruelty or harassment was for, or in

connection with any demand for dowry;

(iv) Such cruelty or harassment was soon before her

death.

14. In Mustafa Shahdal Shaikh vs. State of

Maharashtra, AIR 13 SC 851, the Hon'ble Supreme

Court has held that "soon before her death" means

interval between cruelty and death should not much.

There must be existence of a proximate and links between

the affect of cruelty based on the dowry demand and the

concerned death. If the alleged incident of cruelty is

remote in time and has become state enough not to

disturb of the woman concerned, it would be no

consequence.

15. The ingredients of the offence under Section 304

B IPC are well settled. A marriage performed within seven

years before the death of the woman. The death must be

unnatural. Soon before the death, the deceased must have

been at the receiving hand cruelty or harassment, on

account of demand for dowry. It is described as dowry

death. Section 113 B of the Indian Evidence Act comes to

the rescue of the prosecutor by providing for a

presumption that a person has caused dowry death, if it is

shown that soon before her death, she was subjected by

such person for cruelty or harassment for or in connection

with demand for dowry. There should be a nexus between

the death of the deceased and the dowry related

harassment or cruelty inflicted on her.

16. In Monju Roy and Others Vs. State of West

Bengal, 2015 (4) CCSC 1786, the Hon'ble Supreme

Court observed, "The court has to adopt pragmatic view

and when a girl dies an unnatural death, allegation of

demand of dowry or harassment which follows cannot be

weighed in golden scales. At the same time, omnibus

allegation against all family members particularly against

brothers and sisters and other relatives do not stand on

same footing as husband and parents."

17. Mr. S.S. Adhikari, learned Deputy Advocate

General, fairly conceded that State has not filed any

appeal against the acquittal of Ved Prakash Chamoli

(husband) and Smt. Veenu Verma.

18. In the present case, the death of the deceased

was otherwise than under natural circumstances and she

had died within seven years from the date of marriage are

not in dispute. Apart from this, the fact, which also has to

be ascertained, is, whether the deceased was subjected to

the cruelty, and, the said cruelty was soon before her

death in respect of demand of dowry. This Court has to

see whether death of Smt. Sudha occurring within seven

years of marriage is due to cruelty or harassment in

connection with demand of dowry and whether there is a

reasonable nexus between the alleged harassment and

death.

19. PW-1 Informant, Guru Prasad Bijalwan is the

father of the deceased. He has deposed that his daughter

Sudha was married with one Ved Prakash Chamoli on

14.04.2000. His son-in-law was residing with his younger

brother Manoj Kumar Chamoli and his younger sister Km.

Pushpa Chamoli. They had two stories house. They used to

live in the upper floor and tenant Smt. Veenu Verma used

to live in the lower floor. He (PW1) used to visit their

house regularly. On 07.06.2000, her daughter came to her

house along with her husband and other relatives. He used

to visit his daughter Sudha's house every Sunday till

09.07.2000. Her daughter Sudha told him that her

brother-in-law (Devar) was having an illicit relationship

with the tenant Smt. Veenu Verma. In this regard, Manoj

Kumar Chamoli had written a seven page letter to his

daughter (deceased) that he and Smt. Veenu Verma are

having illicit relations. He (PW1) had complained to his

daughter's in-laws. They had said that they would oust

Smt. Veenu Verma from the house. Whenever, he (PW1)

met his daughter Sudha two or three times, she informed

that her brother-in-law Manoj Kumar Chamoli and sister-

in-law Pushpa Chamoli harass her. Pushpa Chamoli asks to

bring a color TV and Manoj Kumar Chamoli asks to bring a

scooter. He (PW1) asked her daughter to buy a Black &

White Television and had promised to pay money for it. On

09.07.2000, Sudha had come to his house. Thereafter, he

got information that his daughter has committed suicide.

20. PW-2 Smt. Sarojani is the mother of the

deceased. She has stated that her daughter told her that

her sister-in-law and brother-in-law were harassing her.

Her sister-in-law says that TV has not been given and her

brother-in-law says that he had not been given anything.

21. PW-3 Mohan Lal is Guru Prasad Bijalwan's (PW1)

cousin. He deposed that he had gone to Sudha's in-laws

house once or twice to meet her. She once complained to

him that her in-laws demanded a scooter, television and

fridge.

22. PW-4 Km. Kaushalya is the younger sister of the

deceased. She has stated that her sister Sudha told her

that her sister-in-law is demanding a color TV and brother-

in-law is demanding a scooter. She (PW4) stayed at her

sister's house for a week, during which only the tenant-

Smt. Veenu Verma quarreled with her sister (deceased),

and, no one else quarreled with her sister (deceased). Her

sister had told her that Smt. Veenu Verma (tenant) keeps

quarreling. PW-4 further deposed that she (deceased) was

also upset because of the illicit relationship between her

brother-in-law and Smt. Veenu Verma (tenant).

23. PW-5 S.I. Laxmi Chand and PW-9 Constable

Bhaskara Nand are witness of inquest proceedings.

24. PW-6 Constable Pradip Pandey is the scriber of

the First Information Report (Ext.Ka.12).

25. PW-7 Anil Kumar Yadav, Circle Officer of the

Police, is the Investigating Officer.

26. P.W-8. Dr. Ajay Sharma proved the post-

mortem report (Ext.Ka.16). According to Dr. Ajay Sharma,

following anti-mortem injuries were found on the dead

body of the deceased:-

Ligature mark 24 cm X 1.5 cm, round the neck.

Ligature mark was going from the lower part of the

jaw to both sides of the neck. The margins of ligature

marks were abraded.

27. According to P.W-8. Dr. Ajay Sharma, there

were no other injuries on other part of the body. On

internal examination, it was found that the membranes of

the brain were congested. Respiratory canal was also

congested. Lungs were also congested. There was semi

digest food in the abdomen. PW-8 Dr. Ajay Sharma

stated that the cause of death of the deceased was

asphyxia due to anti-mortem hanging. According to PW-8

Dr. Ajay Sharma, the death of the deceased was not

possible by way of strangulation.

28. Investigation of this case was transferred from

Anil Kumar Yadav (PW 7) to K.K. Gautam, Circle Officer of

Police, by whom, charge sheet was filed after completion

of investigation.

29. PW-10 Head Constable Rakesh Chand proved

K.K. Gautam's signature on the charge-sheet (Ext.Ka.17).

30. It is not disputed that the deceased-Smt. Sudha,

the daughter of informant-Guru Prasad Bijalwan (PW1),

got married to Ved Prakash Chamoli on 14.04.2000. The

First Information Report (Ext.Ka-12) was lodged against

Ved Prakash Chamoli (husband), Manoj Kumar Chamoli,

brother-in-law (Devar) (appellant), Smt. Pushpa Chamoli,

sister-in-law (Nanad) (appellant) of the deceased & one

Smt. Veenu Verma, the tenant of Manoj Kumar Chamoli

and further fact that the deceased died in her matrimonial

house on 20.07.2000 under the unnatural circumstances is

also not disputed. Charge-sheet was filed against Manoj

Kumar Chamoli, Ved Prakash Chamoli, Smt. Pushpa

Chamoli and Smt. Veenu Verma. Learned Trial Court has

acquitted Ved Prakash Chamoli (husband) of the charge

under Sections 304 B IPC, 498A IPC & Section 4 of the

Act, 1961 and Smt. Veenu Verma has been acquitted of

the charge under Section 120B IPC.

31. PW1 Guru Prasad Bijalwan, father of the

deceased, deposed that neither any dowry was settled at

the time of marriage nor the accused persons asked for

anything. He has stated that he had given a statement to

the Investigating Officer that Sudha had not told him

about the demand for color television and scooter. She

had told her mother about the said demand. PW2 Smt.

Sarojani, mother of the deceased, has stated that Sudha

had told her that her sister-in-law had said that she did

not even give TV while everyone is getting TV in marriage

and her brother-in-law had said that nowadays everyone is

giving, she (PW2) did not give anything. PW4 Kaushalya,

sister of the deceased, has deposed in her examination-in-

chief that her mother was also present when Sudha told

her (PW4) about the said demand, whereas she had given

statement under Section 161 of the Code of Criminal

Procedure, 1973 that she (PW4) was alone when Sudha

told her about the said demand. PW1 Guru Prasad

Bijalwan has stated that Sudha used to write diary but

nothing is written in her diary that color TV was demanded

by her sister-in-law or scooter was demanded by her

brother-in-law.

32. Mr. S.S. Adhikari, learned Deputy Advocate

General appearing for the State, submitted that the case

of the prosecution is that the appellants harassed the

deceased and thereby, they with their cruel behavior,

abated the deceased to commit suicide.

33. Abatement involves in a mental process of

instigating a person or intentionally adding a person in

doing of a thing. Without a positive act on the part of the

accused to instigate or add in committing suicide,

conviction cannot be sustained. Abatement requires an

active act or direct act which led deemed to commit

suicide seeing no option and that act must have been

intended to push the deceased to such a position that she

committed suicide.

34. Instigation includes provoke insight or

encourage to do "an act" to satisfy the requirement of

instigation though it is not necessary that actual words

must be used to that affect, yet a reasonable certainty to

insight the consequence must be capable of being spelt

out.

35. In this instant appeal, no positive evidence has

been produced by the prosecution that the appellants had

by their acts or omission or by their conduct created such

circumstances that the deceased was left with no other

option except to commit suicide.

36. In Bhagwan Singh and others vs. State of

M.P., (2002) 4 SCC 85, the Hon'ble Supreme Court

observed that the golden thread which runs through the

web of administration of justice in criminal case is that if

two views are possible on the evidence adduced in the

case, one pointing to the guilt of the accused and the

other of his innocence, the view which is favorable to the

accused should be adopted.

37. It is also a basic rule of the criminal

jurisprudence that suspicion, however, strong cannot take

place of proof. In Sujit Biswas vs. State of Assam, AIR

2013 SC 3817, the Hon'ble Supreme Court held that

suspicion, however grave it may be, cannot take the place

of proof, and there is a large difference between

something that "may be" proved, and something that "will

be proved." In a criminal trial, suspicion no matter how

strong, cannot and must not be permitted to take place of

proof. This is for the reason that the mental distance

between "may be" and "must be" is quite large, and

divides vague conjectures from sure conclusions. In a

criminal case, the court has a duty to ensure that mere

conjectures or suspicion do not take the place of legal

proof. The large distance between "may be true" and

"must be true", must be covered by way of clear, cogent

and unimpeachable evidence produced by the prosecution,

before an accused is condemned as a convict, and the

basic and golden rule must be applied.

38. In a criminal case, the onus is on the

prosecution to prove that the circumstances from which

the conclusion of guilt is to be drawn, are fully established.

Something more than mere suspicion is needed to convict

the accused. The prosecution has to prove beyond all

reasonable doubt that the deceased was subjected to

cruelty or harassed by the appellants for or in connection

with any demand of dowry. In order to presume the dowry

death, it is a condition precedent that there must be

unimpeachable evidence in relation to dowry demand. But,

the evidence on record do not support the prosecution

story. The circumstances of this case are not sufficient to

connect the appellants with alleged offence. No offence

under Section 304B IPC or Section 498A IPC or Section 4

of the Act, 1961 is made out as there is no material on

record to show that the appellants had subjected the

deceased to cruelty. As per evidence on record, there is no

positive and cogent evidence about demand of dowry, and,

nexus between demand of dowry and harassment could

not be established. Therefore, conviction of the appellants

cannot be sustained.

39. On a detailed examination and scrutiny of the

evidence, produced by the prosecution, it is considered

view of this Court that the prosecution has failed to

establish the commission of alleged offence by the

appellants beyond all reasonable doubt, therefore, they

deserve benefit of doubt.

40. As a result, this Court accepts the case of the

appellants. Accordingly, the appeal is allowed.

41. The impugned judgment of conviction and

sentence dated 16.12.2004, passed by learned Sessions

Judge, Dehradun in Sessions Trial No.236 of 2000, "State

vs. Manoj Kumar Chamoli and three Others", is hereby set

aside. Both the appellants are acquitted of the charge

under Sections 304B IPC, 498A IPC and Section 4 of the

Act, 1961. Appellants are on bail. Their bail bonds are

cancelled and sureties are discharged.

42. Appellants, Manoj Kumar Chamoli alias Sonu

and Smt. Pushpa Chamoli, are directed to make

compliance of Section 437A of the Code of Criminal

Procedure, 1973 within six weeks from the date of this

judgment by appearing before the court concerned and

execute a personal bond and two reliable sureties, each in

the like amount, to the satisfaction of the court concerned.

___________________ ALOK KUMAR VERMA, J.

Dt: 04.05.2023 JKJ/Neha