Amar Saran & Ramesh Sinha, JJ.
1. Criminal Appeal No. 4639 of 2003 has been preferred by appellant Chandra Shekhar. The connected Criminal Appeal No. 4236 of 2003 has also been preferred by appellants Chandra Shekhar along-with Smt. Ramawati Devi, mother of Chandra Shekhar. Sri Kamal Kumar Singh has already appeared for the appellant Chandra Shekhar. He also filed his appearance slip in Criminal Appeal No. 4236 of 2003 today for representing Smt. Ramawati Devi. It appears that due to some mistake two appeals have been filed by Chandra Shekhar. Learned Counsel for the appellants is permitted to delete the name of Chandra Shekhar from Criminal Appeal No. 4236 of 2003. Appellant Chandra Shekhar is in jail in Criminal Appeal No. 4639 of 2003, but Smt. Ramawati Devi is on bail. As a matter of fact appellant Chandra Shekhar has been in jail during trial and he was never granted bail.
2. These appeals arise out of the judgment of the Additional Sessions Judge/Fast Track-Ist, Azamgarh in S.T. No. 111 of 2002 dated 27.8.2003. By this judgment the appellant Chandra Shekhar has been convicted for life imprisonment u/s 304-B and Smt. Ramawati Devi has been sentenced to eight years rigorous imprisonment under the same provision. Both the appellants were convicted u/s 498-A for two years rigorous imprisonment and fines of Rs. 1,000/- each. Both the appellants
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were further convicted u/s 3/4 D.P. Act for one year rigorous imprisonment and fines of Rs. 2,000/-each. In case of non-payment of fine, they were to undergo three months additional simple imprisonment. The sentences were to run concurrently.
3. Briefly the prosecution case was that the deceased Smt. Rema Devi had married Chandra Shekhar two years prior to the incident. The informant Doodhnath who is the father of the deceased had done the 'Bidai' of Smt. Rema Devi nine months earlier as she was living in her 'Sasural' at Kamhanpur and she was being harassed for dowry by the two appellants. About 20 days earlier the informant had asked for her 'Bidai', but the appellants had not agreed. On 4.8.2001 the informant had learnt that the appellants had made Rema Devi disappear. He had visited village Kamhanpur, but could not find Rema Devi or her Sasuralwalas (in laws). The neighbouring women and children of the village had revealed that Rema's Sari, slippers and torch were found on the river bank. The informant was suspecting that the appellants had murdered Rema and thrown her body in the river. As the Police had not taken any action on the report, the informant had submitted an application to the S.S.P. Azamgarh on 7.8.2001 and on the orders of the CO. the report was registered on 14.8.2001 as Crime No. 250/2001, under sections 498-A and 304-B I.P.C. P.S. Kandharpur, District Azamgarh. The report was taken down by P.W.-6 Sharda Prasad and the G.D. entry was made by Brij Nath Dubey. P.W.-8 Constable Jitendra Singh who was on Patrolling Duty in Village Berma had learnt from the Chowkidar that on 8.8.2001 an unknown body had been found on the bank of the Tons river in Village Jameen Pahi, P.S. Jiyanpur. He along with H.C.P. Ram Dayal Yadav P.W-5 recorded this information on 06:10 A.M. in the G.D. at P.S. Jiyanpur and thereafter they conducted the inquest. He completed the inquest and chalans and sent the dead body for postmortem. The informant Doodhnath was present at the time of inquest and identified the dead body to be that of Smt. Rema Devi. P.W.-7 C.O. Chandrama Singh started investigation of the case on 15.08.2001. He collected all the papers, made a spot inspection on 16.8.2001, prepared the site plan, recorded the statements of the witnesses Ram Chandra, Bhola etc. in the case diary and made a search for the accused. On 8.9.2001 he recorded the statement of accused Smt. Ramawati Devi and Chandra Shekhar and after completing all the formalities of the investigation submitted the charge-sheet.
4. Autopsy on the dead body was conducted by P.W.-4 Dr. M.K. Gupta on 08.08.2001 at about 04:00 P.M. and according to him the age of the deceased was about 24 years and she had died 4-5 days earlier.
The dead body was bloated & foul smelling. Right eye ball was absent. Left eye ball was protruding out. The Skin had peeled off all over the body. Muscle & soft tissue of abdomen, perennial region, both lower limbs were absent, due to being eaten by animals. Skin of both hands were wrinkled and easily pulled out. Internal viscera of thorax and abdomen were absent. Rigor mortis was absent, maggots of one inch size were crawling on the body. Scalp hair were absent. Scalp sutures were loose.
No external injury was seen over body due to putrefaction. On opening Larnyx and trachea, oropharynx were covered with muddy particles and green coloured particles.
Scalp and Skull absent, Membranes shrunken, Brain liquefied, Base fracture loose, Pleura absent, Larynx, trachea and bronchi-absent, Left and Right lung absent, Pericardium-absent, Contents-absent, Small intestine, large intestine-Absent, Rectum-Absent, gall bladder-Absent, pancreas-Absent, spleen-Absent, both kidneys-Absent, Urinary Bladder-Absent. Uterus ruptured due to being eaten by animals partially. One piece of cloth i.e. Blouse and Petticoat and a steel bangle was found on the dead body.
Cause of death--Asphyxia as a result of muddy particles present in trachea, Larynx, oropharynges.
5. Apart from the aforesaid P.W.-1 Doodhnath father of the deceased, P.W.-2 Ram Chandra, Uncle of the deceased, P.W.-3 Bhola, brother of the deceased are the witnesses of fact.
6. P.W.-1 Doodhnath reiterated the F.I.R. version. He further stated in his evidence that he had given Rs. 5,000/- at the time of marriage along-with some utensils and other items after the 'Bidai' and when he visited the matrimonial house his daughter told him that appellants were demanding additional dowry of Rs. 20,000/- and they used to beat her. He along with his wife had pursued the matter with the in-laws of their daughter to patch up the dispute. When the informant had pressed upon the appellants to allow the 'Bidai' of Rema, they had not agreed. Thereafter his son Bhola had gone on 'Rakshabandhan' and he found that the house of Chandra Shekhar was locked and he learnt from the villagers that Rema had run away some where and her matrimonial relatives had also fled away from the village. After Bhola returned to his house they had gone to village Kamhanpur and the villagers disclosed to them that Rema's Slippers, Saree and Torch were found on the river bank. Thereafter, he had tried to lodge the report, but the Police had not taken down the same. He had given an application to the S.S.P. after some days, that he had learnt that a dead body was found in village Dhiliyapar Pahi on the bank of river Tamsa and had identified the dead body to be that of Smt. Rema Devi on the basis of her large teeth and a steel bangle which she was wearing on her hand and on the basis of the clothes i.e. Blouse and Petticoat, that the deceased was wearing. The inquest was conducted thereafter.
7. P.W.-2 Ram Chandra had given same evidence regarding demand of dowry and other particulars as mentioned by Doodhnath. P.W.-2 Ram Chandra, however, admitted that Rema was 13-14 years of age at the time of marriage.
8. P.W.-3 Bhola, brother of the deceased, has also deposed the same facts as the earlier two witnesses, regarding the demand of dowry of Rs. 20,000/- and the recovery of the dead body and other items.
9. The two appellants have denied the allegations levelled against them in their statements u/s 313 Cr.P.C. However Chandra Shekhar stated that he had got married to Rema and after the marriage she had left the home and he had no information about where Rema had gone away. Smt. Ramawati Devi stated that Rema had disappeared from the house and she had gone to Police Station Kamhanpur along-with her younger son and lodged a report there.
10. D.W.-1 Brijnath Dubey has been examined by the defence. He has admitted that on 4.8.2001 they had received information from Smt. Rama Wati that the deceased Rema had disappeared from the house of the appellants and that an inquiry be made.
11. Learned Counsel for appellants submits that the appellants are innocent and as a matter of fact the deceased had herself gone away on her own and they had lodged a report regarding her disappearance. It was further argued that even the identity of the deceased could not be ascertained as the dead body was unrecognizable and merely on the basis of some large teeth and a Steel bangle on the person of the deceased, the body could not have been identified.
12. Learned A.G.A., on the other hand, argued that as the death had taken place within two years of the marriage and the deceased had disappeared the onus lay on the husband and parents-in-laws to explain as to how the deceased had died and merely lodging of an F.I.R. regarding her disappearance could not suffice for this purpose.
13. We have examined the contentions of the learned Counsel for the parties. The crucial issue that needs to be examined in this case is whether, it has at all been confirmed that the dead body which was lying on the bank of the Tons river at village Dhiliyapar Pahi was that of the deceased?
14. There are several reasons for taking the view that it could not be established that the dead body lying on the bank of river was indeed that of Smt. Rema. According to P.W.-2 Ram Chandra (Uncle of the deceased) Smt. Rema was aged about 13-14 years at the time of her marriage. Therefore, she would be 15-16 years of age when the incident had taken place after two years of the marriage. This age of the deceased is completely inconsistent with the age of the deceased of 24 years as has been found by Dr. M.K. Gupta, P.W.-4 in his autopsy report.
15. We also think that merely from the fact that the dead body disclosed three long teeth is an insufficient basis for inferring that the corpse was that of Smt. Rema, especially when the body was eaten by animals and the brain was liquified. According to P.W.-8, Jitendra Singh, Constable who had received information from the Chowkidar in the night of 7.8.2001 itself that the unknown dead body of a woman was seen, lying near the bank of the river. This would have been only three days after the incident, as the deceased has disappeared sometime between 7.8.2001/8.8.2001. The Doctor who conducted the autopsy stated that the deceased had died almost 4-5 days earlier. The examination disclosed that the condition of the body was such that the skin had Peeled off all over body and the brain was liquefied. Such a condition of the body would be present only after 7-8 days whilst the deceased had gone away only on 4.8.2001. Therefore, the condition of the dead body could not be such as was found by the Doctor. The presence of the Blouse and petticoat and a Steel bangle on the dead body could not have been a sufficient basis for establishing that the deceased was indeed Smt. Rema, as has been stated by the witnesses of fact. The witnesses had stated that they had recognised the dead body in view of the three large teeth & bangle only in their evidence before the Court and not earlier. The dead body was found at a distance of about 20 kilometers from Kamhanpur in village Dhilyapar Pahi on the bank of the river Tons. The place where the deceased is said to have disappeared is the river bank of Kamhanpur. As proof that the body had disappeared from the Kamhanpur river bank, the witnesses have deposed that some villagers had alleged that a Sari, Slippers and Torch were found on the river bank. But these villagers have not been produced. No recovery memo of these items was ever prepared by the police, nor were the said items ever taken into possession by the police or produced in Court. In any case the alleged presence of a torch suggests that the deceased might have run away on her own along with her torch in the night time. The presence of muddy particles in the trachea, Larynx and oropharynges also suggests that the deceased had died due to drowning which could even be accidental and which would be contrary to the prosecution case that the deceased was done to death in the house of the appellants and then thrown in the river. The conduct of the appellant Smt. Ramawati was that on learning about the disappearance of the deceased she had immediately lodged the report regarding the disappearance of Rema herself.
16. We also find that the ingredients of an offence of dowry death are not made out. There is no evidence that Rema has indeed died a homicidal or unnatural death. There is even doubt as to whether the dead body which was found in the village Dhiliypar, Pahi at the side of the river bank was indeed that of Smt. Rema.
17. We also find that in the F.I.R. there is no specification as to what was demanded in dowry and there was no earlier complaint regarding demand of dowry.
18. In this view of the matter there is no sufficient evidence for inferring that the appellants had committed the crime as alleged. Accordingly, we are of the view that the judgment of the Trial Judge convicting and sentencing the appellants should be set aside. The appellant Smt. Ramawati is on bail her bail bond and security is discharged and she need not to surrender. The appellant Chandra Shekhar is in jail, he may be set at liberty forthwith, if he is not wanted in connection with any other case. Let the judgment and record of this appeal be forwarded to the Court below at the earliest for compliance. The appeal is allowed.