Uday Kumar vs State Of Uttarakhand

Ravindra Maithani, J

The present criminal appeal has been preferred by the appellant against the judgment and order dated 15.06.2013 and 17.06.2013, passed by the learned Sessions Judge, Pithoragarh in Sessions Trial No.01 of 2012. By the impugned judgment, the appellant has been convicted and sentenced as under :-

(i) Under Section 302 IPC imprisonment for life along with a fine of Rs.10,000/- and, in default of payment of fine, to undergo simple imprisonment for a further period of one year;

(ii) Under Section 304-B IPC rigorous imprisonment for 10 years along with a fine of Rs.10,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of one year.

(iii) Under Section 498-A IPC rigorous imprisonment for three years along with a fine of Rs.2,000/- and in default of payment of fine, to under simple imprisonment for a further period of three months.

Briefly stated, according to the prosecution, deceased Ramaiya was 24 years of age when she died. She and appellant-Uday Kumar married on 11.11.2010. Both belong to the State of Kerala. The appellant had a posting in Askot, District Pithoragarh. He was residing there in a rented accommodation along with the deceased and his parents. At 3:30 A.M. on 03.09.2011, their landlord PW2 Rajesh Chand informed the police that Smt. Ramaiya died due to burn injuries. It was recorded in the general diary of police station Askot as report no.2. Upon this information having been received, the inquest was prepared and the dead body was sent for postmortem. From the place of occurrence, some burn clothes, match box, etc. were taken into custody. According to the prosecution, PW4 Rameshan, father of the deceased sent a report to the police station through a fax message, and a chik FIR No.02/2001 on 03.09.2011 at 23:25 P.M. was recorded. Based on it, a case under Section 304-B IPC was registered against the appellant.

According to the FIR, after the marriage, the appellant had tortured her wife-deceased physically and mentally in connection with dowry demand. The first informant received a message that his daughter poured the kerosene oil and died of burns. PW4 Rameshan raised a suspicion in the FIR, that it is not a case of suicide, but it is a brutal murder. During the investigation, the statement of PW2 Rajesh Chand, who was the landlord of the appellant, was also recorded under Section 164 of the Code of Criminal Procedure, 1973 (for short "the Code"). After investigation, chargesheet was submitted by the Investigating Officer against the appellant under Section 304-B IPC. Cognizance was taken against him and the case was committed to the Court of Sessions for trial. On 17.02.2012, charges were framed against the appellant under Sections 304-B IPC and in the alternate under Section 302 IPC and Section 498A IPC, to which, the appellant denied and claimed trial.

In order to prove the case, the prosecution examined twelve witnesses, namely, PW1 Head Constable Devaki Nandan, PW2 Rajesh Chand, PW3 R. R. Tulsidharan, PW4 Rameshan, father of the deceased, PW5 Radhamani, mother of the deceased, PW6 Laxman Singh Pingal, PW7 Narayan Singh, PW8 S.I. Shyam Kumar, PW9 Dr. Ramesh Chandra Punera, PW10 Gopal Singh Pal, PW11 Prakash Singh and PW12 Dy.S.P. Rajeev Mohan, Investigating Officer of the case.

The appellant was examined under Section 313 of the Code. According to the appellant, he has been falsely implicated. He is innocent. In his defence, the appellant examined DW1 Chandran.

After considering the material on record, learned trial court convicted the appellant of the charges levelled against him under Sections 302, 304-B and 498-A IPC and sentenced him, as stated hereinbefore. Aggrieved, the instant appeal has been preferred by the appellant.

Heard Mr. S. K. Agarwal, Senior Advocate assisted by Mr. S. S. Bhandari, Advocate for the appellant, Mr. V. K. Gemini, Deputy Advocate General with Mr. Pankaj Joshi, Brief Holder for the State of Uttarakhand and perused the record.

Learned senior counsel for the appellant would raise the following points in this appeal:-

(i) The prosecution utterly failed to prove the charge under Section 302 IPC. There is no evidence, which may connect the appellant with the offence, under Section 302 IPC.

(ii) In so far as the offence under Section 304-B IPC is concerned, it was argued by learned senior counsel that the statement of PW3 R. Tulsidharan, maternal uncle of the decesad is a hearsay statement. There cannot be any chance of dowry demand from this witness.

(iii) The statement of PW4 Rameshan is in contradiction to the averments made in the FIR with regard to the cause of death. In this context, reference has been made to the FIR, wherein, it is stated that PW4 Rameshan received a message that the deceased poured kerosene oil and died of burns, whereas, reference has also been made to the evidence of PW4 Rameshan given in the court that on 03.09.2011, when he says that he received a message that the appellant had killed the deceased.

(iv) According to the prosecution on 02.09.2011 in the late evening, the deceased made a telephone call to her family members. It was argued that since there is no telephone call details, it is not established that any telephone call was made by the deceased in the late evening of 02.09.2011. The first information was given by PW2 Rajesh Chand but he did not inform as to how the deceased died.

(v) The prosecution failed to prove that immediately before her death, the deceased was subjected to cruelty and harassment in connection with dowry demand. Whatever the witnesses have stated is about the dowry at the time of marriage or before marriage and not before the death of the deceased. After the marriage, the deceased came to her parental house in order to appear in an examination. If she was subjected to harassment in connection with dowry demand, she could have made a complaint and even PW4 Rameshan and PW5 Radhamani, father and mother of the deceased respectively, did not complain about it.

(vi) There is no independent witness.

(vii) The prosecution failed to prove the charges against the appellant.

On the other hand, learned State counsel would argue that the statements of PW2 Rajesh Chand, PW3 R. Tulsidharan, PW4 Rameshan and PW5 Radhamani prove the charges against the appellant under Section 304-B IPC and 498-A beyond reasonable doubt. Reference has been made to the statements of PW4 Rameshan and PW5 Radhamani to indicate that in fact, these witnesses have categorically stated as to how the dowry demand was made. Their statements have been corroborated by PW3 R. Tulsidharan, who happens to be the maternal uncle of the deceased. Therefore, learned State counsel would argue that the prosecution has been able to prove the charge under Section 304-B IPC.

There are two reports of the incident. One report Ex.A.1 was given by PW2 Rajesh Chand to the police station at 3:30 A.M. and on the basis of which, report no.2 at 3:30 was lodged at police station. This is just an information of the incident that the deceased died of burns. During the course of the day, proceedings were taken. There is a witness PW6 Laxman Singh Pingal, who was the then Tehsildar of the area, he immediately reached at the spot. According to him, there was a lot of crowd and the police personnel were also there. This witness prepared the inquest, site plan and also took stove, match box, some half burnt clothes, nokia cellphone with sim card, a bed-sheet of the deceased into custody and prepared its recovery memos. Thereafter, he dispatched the dead body of the deceased for postmortem.

PW7 Narayan Singh and PW10 Gopal Singh Pal are witnesses of the inquest. According to the inquest, the dead body of the deceased was lying in the kitchen in a burnt state. PW8 S.I. Shyam Kumar also reached the spot soon after the receipt of the information about the death of the deceased. He is also a witness of the proceedings undertaken by PW6 Laxman Singh Pingal. He identified the seized articles in the court. PW11 Prakash Singh was posted as Station Officer of police station Askot at the relevant time. He proved the chik FIR and arrested the appellant on 04.09.2011 and also sent him for medical examination. PW12 Deputy S.P. Rajeev Mohan is the Investigating Officer of the case. He sent the articles seized from the spot for forensic examination and submitted the charge-sheet against the appellant under Section 304-B IPC.

PW9 Dr. Ramesh Chandra Punera is the Medical Officer, who conducted the postmortem of the deceased on 03.09.2011. According to him, following ante-mortem injuries on the dead body were found:-

"1. Whole body is burnt & blackening & charring present at different parts.

Lines of redness present.

Scalp hair are burnt except some hair on the occipital area.

Eye brows, pubic hair & auxillary hair are completely burnt.

On the right side crack measuring 19 c.m. X 4 c.m. present at the junction of thigh & trunk.

On the left side crack measuring 21 c.m. X 4.5 c.m. present at the junction of thigh & trunk.

Crack measuring 14 c.m. X 3 to 5 c.m. in size, irregular in shape present on the right side arm & extending upto right auxilla.

Degree of burn is from IIIrd to Vth degree."

According to him, the dead body was average built, smell of kerosene was found from the body. According to PW9 Dr. Ramesh Chandra Punetha it was a case of 100% burnt and on internal examination he found as following injuries:-

(i) Carbon shoots were present in the wind pipe;

(ii) The lungs and the brain membrane was found congested;

(iii) Pancreas, spleen, kidney were found congested, semi-digested food was present, uterus was empty.

According to PW9 Dr. Ramesh Chandra Punera, the period of death was 12 to 24 hours, prior to the postmortem and the death of the deceased was caused due to extensive burn injuries.

In defence DW1 Chandran is examined. According to him, he attended the marriage of the appellant and the deceased. He further states that the appellant was given 200 gm gold and a motorcycle in the marriage. According to him both the appellant and deceased had good relations; he does not know that the in-laws of the deceased sold their land for giving dowry. DW1 Chandran has not denied of gold and motorcycle having been given to the appellant, by his in-laws, at the time of marriage.

This is not a case of any direct evidence in terms of eye-witnesses. What was found at the scene of occurrence, after the information having been given, was the dead body, which was burnt. In the last paragraph of postmortem report, PW9 Dr. Ramesh Chandra Punera has not stated that it is a homicidal death. Learned senior counsel for the appellant would argue that there is no evidence for convicting the appellant under Section 302 IPC.

PW1 Devaki Nandan, recorded the information given by PW2 Rajesh Chand about the death of the deceased. This witness has stated about the G.D. entry, which he prepared after the receipt of the information. Apart from it, there are now four significant witnesses, namely, PW2 Rajesh Chand, PW3 R. Tulsidharan, PW4 Rameshan, father of the victim and PW5 Radhamani, mother of the victim.

Before the evidence of PW4 Rameshan and PW5 Radhamani is evaluated, it would be pertinent to mention that both these witnesses were unable to speak either Hindi or English. Therefore, during the course of the trial, on 14.06.2012 the prosecutor moved an application that an Interpreter may be engaged for recording their evidence. The learned court below passed a detailed order on that application on 14.06.2012 itself and Shri Kuriacose Mathai was appointed Interpreter. At this stage reference may be made to Section 277 of the Code, which reads as hereunder:-

"277. Language of record of evidence. In every case where evidence is taken down under section 275 or section 276,-

(a) if the witness gives evidence in the language of the Court, it shall be taken down in that language;

(b) if he gives evidence in any other language, it may, if practicable, be taken down in that language, and if it is not practicable to do so, a true translation of the evidence in the language of the Court shall be prepared as the examination of the witness proceeds, signed by the Magistrate or presiding Judge, and shall form part of the record;

(c) where under clause (b) evidence is taken down in a language other than the language of the Court, a true translation thereof in the language of the Court shall be prepared as soon as practicable, signed by the Magistrate or presiding Judge, and shall form part of the record:

Provided that when under clause (b) evidence is taken down in English and a translation thereof in the language of the Court is not required by any of the parties, the Court may dispense with such translation."

Section 282 of the Code provides that Interpreter to be bound to interpret truthfully. It reads as under:-

"282. Interpreter to be bound to interpret truthfully.-When the services of an interpreter are required by any Criminal Court for the interpretation of any evidence or statement, he shall be bound to state the true interpretation of such evidence or statement."

Section 4 of Oaths Act, 1969 provides that oaths or affirmations to be made by witnesses, interpreters and jurors. It reads as hereunder:-

"4. Oaths or affirmations to be made by witnesses, interpreters and jurors:-(1) Oaths or affirmations shall be made by the following persons, namely:-

(a) all witnesses, that is to say, all persons who may lawfully be examined or give, or be required to give, evidence by or before any court or person having by law or consent of parties authority to examine such persons or to receive evidence;

(b) interpreters of questions put to, and evidence given by, witnesses; and

(c) jurors: Provided that where the witness is a child under twelve years of age, and the court or person having authority to examine such witness is of opinion that, though the witness understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation, the foregoing provisions of this section and the provisions of section 5 shall not apply to such witness; but in any such case the absence of an oath or affirmation shall not render inadmissible any evidence given by such witness nor affect the obligation of the witness to state the truth.

(2) Nothing in this section shall render it lawful to administer, in a criminal proceeding, an oath or affirmation to the accused person, unless he is examined as a witness for the defence, or necessary to administer to the official interpreter of any court, after he has entered on the execution of the duties of his office, an oath or affirmation that he will faithfully discharge those duties."

In the instant case, Court was moved that PW4 Rameshan and PW5 Radhamani are not able to give evidence in the language of the Court. The Court appointed an Interpreter and oath was administered to the Interpreter, before recording the evidence of these two witnesses. The oath was administered under Section 4 of the Oaths Act, 1969. Not only this, in fact, during the investigation also, according to PW12 Rajeev Mohan, the investigating officer, PW4 Rameshan was interrogated through Interpreter R. Tulsidharan, this PW12 had stated in para 16 of his statement and in para 19 he states that PW5 Radhamani was also interrogated with the help of a translator R. Tulsidharan and it was done telephonically. PW4 Rameshan in his examination before the Court admitted in para 19 of his statement that when he was questioned by the Investigating Officer, R. Tulsidharan was with him. In so far as, PW5 Radhamani is concerned in para 5 of her statement though she feigned ignorance that she was interrogated by police over telephone but the fact remains that from paragraph 12 onwards in her statement, she was confronted with the statement given by her to the police during investigation. So it is clear that during investigation PW4 Rameshan and PW5 Radhamani were interrogated with the help of some translator or Interpreter. Their examination was recorded in the court by a duly appointed Interpreter, who was administered oath and thereafter the statement of this witness was recorded as the examination of witness proceeded and it has been signed by the Presiding Judge. At this stage it may be mentioned that during the examination of PW4 Rameshan and PW5 Radhamani the appellant was present in the court. The statements of PW4 Rameshan and PW5 Radhamani is recorded in Hindi language and what is very significant to note is that in his examination under Section 313 of the Code, the appellant has categorically, at the end of his statement stated that he knows Hindi. Nothing has been indicated, which may raise any question with regard to the illegality or any procedural lapse or any omission or defect or error while recording the statements of PW4 Rameshan and PW5 Radhamani. Their statements have been recorded after following due process, in the presence of the appellant, in a language, which is known to the appellant.

Now, let us examine the evidence of these four significant witnesses, namely, PW2 Rajesh Chand, PW3 R. Tulsidharan, PW4 Rameshan and PW5 Radhamani. PW2 Rajesh Chand is a very important witness. He is the person in whose house the appellant along with the deceased and other family members was staying on the date of incident. The appellant was a tenant of this witness. According to him, on 27.08.2011, the appellant took his house on rent; on 02.09.2011 at about 8:30 P.M. to 9:00 P.M. after having meals, he returned to his house; the main gate was locked; he knocked the door, the father of the appellant opened the lock and this witness entered into his house. When he was listening music in his mobile phone, in his room, he heard the cry of the deceased but, considering it as the family matter, he did not intervene. Thereafter, PW2 Rajesh Chand heard the deceased crying and talking to someone on the mobile phone, in her own language. But, this witness could not understand the language. This witness further states that he had partitioned his courtyard by plywood, for the purposes, of giving it to the appellant on rent, therefore, they could hear the voice from either side. According to him, at about 2:30 - 3:00 A.M. in the morning when he heard some sound of thumping at the partition ply, he woke up. He went there and saw that the house of the appellant was aflame. There was a lot of smoke. He immediately rushed to the courtyard. The appellant's parents came out of the house and told that there is a fire in the house. When this witness went to inform his friends, the appellant ran away from the spot. Thereafter, he reported the matter to the police. He is a witness of inquest also. His statement was recorded under Section 164 of the Code, which he proved.

PW3 R. Tulsidharan is the maternal uncle of the deceased. He states that in the marriage, the appellant had demanded a sum of Rs.10 Lakhs in cash, 60 Tolla Gold and a vehicle in dowry, but, the father of the deceased had given 50 Tolla Gold, Rs.7 Lakhs cash and one Hero Honda motorcycle to the appellant. According to this witness, his sister (i.e. PW5 Radhamani), who is the mother of the deceased had informed him that the money which was given to the appellant as dowry was spent by the appellant in his sister's marriage and, with the remaining money, he had cleared his bank loan and also constructed his house and now, he is demanding more money. PW3 R. Tulsidharan further states that in order to give dowry PW4 Rameshan, the father of the deceased had sold his land to him and in lieu thereof he had paid money to PW4 Rameshan. This witness has stated that after the death of the deceased, he accompanied PW4 Rameshan to take back the dead body. He saw the dead body in a burnt state. They took the dead body of the deceased from Delhi to Kerala by flight.

PW4 Rameshan, who is the father of the deceased, is also an important witness. He states that before marriage, the appellant had demanded a sum of Rs.10 Lakhs, 60 Tolla of Gold and one Maruti car. He had given Rs.7 Lakhs cash, one motorcycle and 50 Tolla Gold to the appellant in the marriage. Appellant utilized this money in construction of a house, in his sister's marriage and also re-paid the loan, which he had taken. According to PW4 Rameshan, whenever the deceased visited his house, he complained of appellant that he is harassing her for demand of dowry and told her that in case, she did not fulfill the demand of dowry, he would remarry. PW4 Rameshan states that on 24.08.2011, appellant along with the deceased came to Askot. On 02.09.2011, at about 10:00 P.M. the deceased made a telephone call to him and conveyed that the appellant was beating her and is demanding more dowry. She also told him that "May God save her!" At that time, according to PW4 Rameshan, the appellant was trying to snatch the mobile phone and slapped her and was also trying to switch off the mobile phone of the deceased. When this witness told his wife about it, she got worried. On 03.09.2011 at 4:30 A.M., one Vikesh, a friend of the appellant made telephone call to him and informed that the appellant had killed the deceased by setting her aflame. This witness has also produced the receipt of the motorcycle. Thereafter, this witness sent a report to the Police Station Askot by a fax message. He has also stated as to how he gave dowry to the appellant. At one stage, he was crying in the Court. The Court gave him time to compose and thereafter, the statement has been recorded.

PW5 Radhamani, mother of the deceased, is the wife of PW4 Rameshan. She has corroborated the statement of PW4 Rameshan, father of the deceased. Contradiction has been indicated by learned senior counsel for the appellant that according to PW5 Radhamani, the appellant told the deceased that she had brought less stridhan, whereas according to the deceased, she was being harassed by the appellant in connection with dowry demand. This is insignificant contradiction.

It is true that in the FIR, PW4 Rameshan has categorically indicated that he got a message to the effect that the deceased poured kerosene oil and died due to burns. It is also true that in his evidence, PW4 Rameshan has stated that he got telephone call from a friend of the appellant that the appellant killed the deceased. In the FIR, it has not been categorically indicated that the deceased committed suicide. But, yes, there are words "poured kerosene oil" who poured kerosene oil has not been indicated in the FIR. But, at the same time when it is looked into its entirety, PW4 raised a suspicion in the FIR to the effect that "I firmly believed that there is no chance of suicide. "I suspect that it was a brutal murder."

PW3 R. Tulsidharan is maternal uncle of the deceased. He has stated about the dowry demand. He has stated that he attended the marriage. This witness has specifically said that PW4 Rameshan had sold his land to this witness and, in lieu thereof, he gave him money by which he could fulfill the demand of dowry made by the appellant. The statement of this witness has been corroborated by PW4 Rameshan.

It is true that the call details have not been proved by the prosecution. They have not, in fact, been submitted. There is one forensic laboratory report, which detects kerosene oil and human blood on the articles seized from the place of incident. Even if the call details are proved, what would its effect? What the deceased conveyed to her parents in the night of 02.09.2011 could be known either of the deceased or to whom she talked on that night. According to PW4 Rameshan, on that date when the deceased talked to him, she told that she was being harassed and beaten by the appellant in connection with dowry demand. According to this witness, the deceased told him that "May God save her!". What is significant is that the deceased made a call to her father and complained of appellant that she was being tortured and beaten up by the appellant for dowry demand. PW4 Rameshan has categorically stated about it. In fact, PW5 Radhamani mother of the deceased states that after the marriage, when the deceased visited her parental house, she complained of the dowry demand made by the appellant and harassment meted out to her. She has also stated that on 12.08.2011, there was a test of the deceased. When she visited the house and told that the appellant harassed her for demand of dowry. The evidence of PW4 Rameshan and PW5 Radhamani with regard to the demand of dowry is consistent and unshaken. PW4 Rameshan filed the receipts of the articles which were gifted at the time of marriage. PW3 R. Tulsidharan produced the documents with regard to the sale deed of the land, which was sold to him by PW4 Rameshan. From the said money, he gave Rs. 7 Lakhs to the appellant as dowry. What is most important here is the statement of PW2 Rajesh Chand, who corroborates the statements of PW4 Rameshan and PW5 Radhamani, that in the late evening on 02.09.2011, the deceased was talking to someone in her own language and she was crying at that time. On this crucial point, PW2 Rajesh Chand corroborates the statement of PW4 Rameshan and PW5 Radhamani.

Statements of PW4 Rameshan and PW5 Radhamani are inspiring confidence. They have categorically stated that soon after the marriage, the appellant started demanding dowry from the deceased and harassed her. According to these witnesses, whenever the deceased visited them, she disclosed it to them. They have stated as to what was demanded at the time of marriage. The documents of purchasing articles for giving dowry have been filed by PW4 Rameshan. PW3, who happens to be brother-in-law of PW4 Rameshan and maternal uncle of the deceased, corroborates the statements of PW4 and PW5.

The deceased was married on 11.11.2010 and died on 03.09.2011. On the previous night, i.e. 02.09.2011, she had a quarrel at the house with the appellant. She was crying, which was heard by PW2, the land lord. PW2 Rajesh Chand is one very important independent witness. He has no reason to side with anyone. He is very truthful witness, a young boy of 24 years, who had in fact, witnessed the unfortunate incident, death of a young girl, the deceased. PW4 and PW5 father and mother of the deceased state that on 02.09. 2011, late in the evening, the deceased had called them and told that the appellant is harassing and beating her for demand of dowry. The statements of PW4 Rameshan and PW5 Radhamani are trustworthy and are corroborated with the statement of PW2 Rajesh Chand and PW3 R. R. Tulsidharan also.

The deceased died just within 11 months of her marriage other than normal circumstances. The prosecution has been able to prove that soon before her death, the deceased was harassed by the appellant in connection with demand of dowry. Therefore, this Court is of the view that the prosecution has been able to prove the charges under section 304-B and 498-A IPC against the appellant. But the, prosecution has not been able to prove that the death was homicidal. There is no evidence, which may connect the appellant with the charge under Section 302 IPC. Therefore, this Court is of the view that the prosecution failed to prove the charge under Section 302 IPC against the appellant. Accordingly, the appeal deserves to be partly allowed.

The appeal is partly allowed. The conviction and sentence of the appellant under Section 498-A IPC and 304-B IPC is confirmed. But, the appellant is acquitted of the charge under Section 302 IPC. The impugned judgment and order is modified to that extent.

Let a copy of this judgment alongwith lower court record be sent to the court below for compliance.