Diwan Singh vs State of Uttarakhand

Alok Singh, J.—1. Present appeal is filed against the judgment and order dated 29.07.2003 passed by Sessions Judge, Pithoragarh, whereby appellant was held guilty for the offences punishable under Sections 304B, 498A and was sentenced to undergo rigorous imprisonment for 8 years and to pay fine of Rs. 1000/- and in default of making payment of fine to undergo additional rigorous imprisonment of one year under Section 304B, IPC; to undergo rigorous imprisonment of 2 years and to pay fine of Rs. 500/- and in default of making payment of fine to undergo additional rigorous imprisonment of six months under Section 498A, IPC. As per the prosecution story, marriage between Kamal Devi (deceased) and Diwan Singh (appellant) was solemnized in the year 1995; out of the wedlock, one baby boy was born; on 11.06.1998, she was found dead in her matrimonial house; dead body was inspected by Patwari Chatra Singh Bora (PW 4) on 12.06.1998; inquest report was prepared then and there; as per statement of accused/appellant recorded in the inquest report and opinion of other Panchas, Smt. Kamla Devi has committed suicide by hanging herself; post-mortem on the dead body of deceased Kamla Devi was performed on 13.06.1998; as per post-mortem report, cause of death was due to asphyxia; PW 3 Digar Singh-father of deceased submitted one application before the SDM, Gangolihat, Pithoragarh on 15.06.1998, after four days of the incident, saying her daughter was subjected to cruelty on account of demand of dowry and he has every apprehension that accused persons might have killed her daughter; on the application so moved, under the order of the SDM, chick FIR (Exhibit 11) was got registered with Patti Patwari Bugoli; after completion of investigation, charge-sheet was submitted against the appellant as well as mother and elder brother of appellant namely Ganguli Devi and Fakir Singh.

To prove the prosecution story, PW 1 Dr. Harish Chandra Pathak, PW 2 Dhana Devi mother of deceased, PW 3 Digar Singh father of deceased; PW 4 Chatra Singly Bora-Investigating Officer, PW 5 Anand Ram, PW 6 Girish Gunwant, PW 7 Dev Ram Tamta another Investigating Officer were examined and thereafter, statement of accused/was recorded under Section 313, Cr.P.C.

Since appellant was convicted and sentenced as narrated hereinbefore, therefore, he has preferred present appeal.

I have heard Mr. R.S. Sammal, Advocate for the appellant and Mr. H.O. Bhakuni, AGA for the State of Uttarakhand and have perused the record.

PW 2 Dhana Devi and PW 3 Digar Singh, mother and father of the deceased, have stated on oath that at the time of marriage, they have given only one pair of golden earring of one tola. They further stated that on several occasions, they have given Rs. 500 and Rs. 1000/- to their daughter in order to meet the illegal demand of dowry raised by accused.

Undisputedly, appellant runs a very small tea stall in village Khati - a remote area of District Pithoragarh and the only thing, which was given at the time of marriage, was one pair of one tola golden earrings, therefore, financial status of both the families seems to be very very poor wherein demand of dowry and meeting out such demand seems to be highly improbable.

This Court should not lose sight of the fact that now it has become the tendency to convert every unnatural death of wife into dowry death, therefore, while hearing the matter of the dowry death, the Court must keep in mind the financial status of the parties to find out the probability of demand of dowry and meeting out demand of alleged dowry.

To constitute an offence punishable under Section 304B, IPC, prosecution must allege and prove that the deceased was subjected to cruelty on account of demand of dowry.

In the present case, keeping in mind the lowest financial status of both the families, the demand of dowry seems to be highly improbable.

To constitute an offence punishable under Section 498A, IPC, the only evidence available on record is that appellant, his brother and mother used to maltreat the deceased on account of demand of dowry. Since demand of dowry seems to be highly improbable, therefore, cruel behavior which is sine qua non under Section 498A, IPC, on account of demand of dowry, is missing.

In the present case, FIR was got registered after four days'' of the incident while as per the statement of PW 3 Digar Singh, father of the deceased, he himself has visited the site and has seen his daughter dead in the evening of 11.06.1998, therefore, registration of FIR after four days'' makes the prosecution case doubtful. Moreover, four days delay has not been explained by the prosecution/PW 3.

There is another aspect of the matter. Patwari PW 4 Chatar Singh Bora was informed, he has prepared the inquest report on the very next day. Before Patwari, husband/appellant has made statement that since her wife was having problem of dislocation of her uterus from the time of her delivery, therefore, she has committed suicide and statement of husband/appellant was believed by the other Panchas of the inquest report and all the Panchas have stated that since she has committed suicide, therefore, they do not suspect anything false.

In the statement recorded under Section 313, CrPC, accused/appellant has stated that the uterus of his wife came out at the time of delivery of baby boy and since then she was suffering from dislocation of uterus, therefore, she has committed suicide.

As per the statement of Dr. Harish Chandra Pathak, (PW 1), he has found round shaped mark of chord around the neck of deceased. He has also opined that round shaped mark of chord, around the neck is possible only when it is a case of hanging.

Round shaped mark around the neck does not rule out the case of hanging, therefore, defence set up by the appellant that since she was suffering from the uterus dislocation, hence, committed suicide cannot be ruled out completely.

Hon''ble Apex Court in the case of Vikramjit Singh alias Vicky v. State of Punjab, reported in , (2006) 12 SCC 306 : (2007 Cri. L.J. 1000), has held that suspicion, however, grave may be cannot take place of the proof and to bring home the guilt of the accused, prosecution must prove the guilt beyond reasonable doubt.

In the present case, to my mind, prosecution was not able to prove the case beyond reasonable doubt, therefore, conviction of appellant seems to be unjustified. Consequently, appeal succeeds and is allowed. Giving the benefit of doubt, appellant is hereby acquitted of the charges for the offence punishable under Sections 304B and 498A, IPC. Appellant is on bail. He need not to surrender, if not wanted in any other case. His personal bonds and sureties are discharged. Let copy of this judgment be forwarded to the learned Trial Court for information along with lower court record.