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2026 DAILYLAW 8646 (UTT)

Anil Ghildiyal v. State of Uttarakhand

2026-03-16

Ravindra Maithani, Siddhartha Sah

body2026
JUDGMENT : Ravindra Maithani, J. Instant appeal is preferred against the judgment and order dated 29.08.2019/31.08.2019, passed in Sessions Trial No.09 of 2019, State vs. Anil Ghildiyal, by the court of Additional Sessions Judge Bageshwar. By it, the appellant has been acquitted of the charge under Section 3 02 IPC and Section 3 of the Dowry Prohibition Act, 1961 (“the Act”) and has been convicted under Sections 304 -B, 498-A and Section 4 of the Act and sentenced as hereunder:- (i) Under Section 304B IPC :- To undergo imprisonment for life. (ii) Under Section 4 of the Act:- To undergo rigorous imprisonment for a period of one year with a fine of Rs.10,000/-. In default of payment of fine, to undergo rigorous imprisonment for a further period of one month. 2. Heard learned counsel for the parties and perused the record. 3. The prosecution case, as unfolded is as follows. The deceased Neema and the appellant were married on 21.02.2018. On 26.03.2019, the deceased was found dead at the bank of river Saryu in District Bageshwar. PW1 Gopal Dhyani, the brother of the deceased lodged an FIR with the allegations that the appellant was working as a Driver in the Police Department. After marriage, he would beat the deceased and demanded dowry. He had physically and mentally tortured the deceased. The deceased, quite often conveyed it to PW1 Gopal Dhyani and his wife PW2 Kusuma Devi. A suspicion was raised that the deceased died due to poison having been administered to her by the appellant. Based on the FIR, Case Crime No.55 of 2019, under Sections 302 , 304-B, 498-A IPC and Section 3 /4 of the Act was lodged against the appellant and investigation proceeded. Inquest of the dead body was prepared on the same day. It is important to note that the appellant was one of the witnesses to the inquest. The witnesses opined in the inquest report that the cause of death is not known, therefore, the postmortem of the dead body may be conducted. The postmortem of the dead body was conducted on 26.03.2019 at 04:45 p.m. The doctors found semi-digested food present in the stomach, which was non-foul smelling. The cause of death could not be ascertained. In order to ascertain the cause of death, viscera was preserved and sent for examination to Forensic Science Laboratory. 4. The postmortem of the dead body was conducted on 26.03.2019 at 04:45 p.m. The doctors found semi-digested food present in the stomach, which was non-foul smelling. The cause of death could not be ascertained. In order to ascertain the cause of death, viscera was preserved and sent for examination to Forensic Science Laboratory. 4. It may be noted that after postmortem eight police papers, two copies of postmortem report in a sealed bundle were handed over to the concerned officer. It is important to note that the postmortem report does not record that viscera was taken and handed over to police. It has significance; it could be discussed at a later stage, in quite detail. The prosecution claims that the viscera preserved from the dead body was sent for forensic examination and the forensic report detected the Organo-chloro Insecticide poison in it. The Investigating Officer prepared the site plan, which is Ex. A-18 and conducted the investigation and finally, submitted the charge-sheet Ex. A-19 against the appellant for the offences punishable under Sections 3 04-B, 498-A IPC and Sections 3 /4 of the Act, that is the basis of the case. 5. On 02.07.2019, charge under Sections 304 -B, 302, 498-A IPC and Section 3 /4 of the Act were framed against the appellant, to which, he denied and claimed trial. 6. In order to prove its case, the prosecution has examined 12 witnesses, namely, PW1 Gopal Dhyani, PW2 Smt. Kusuma Devi, PW3 Smt. Saruli Devi, PW4 Km. Pooja, PW5 Damodar Dhyani, PW6 Balkrishna, PW7 Mainpal Singh, Naib Tehsildar, PW8 Dr. Pradeep Kumar Chaudhary, PW9 Kaushlendra Tripathi, PW10 Inspector Tilak Ram Verma, PW11 Constable Prakash Singh Gaida and PW12 Investigating Officer Mahesh Chandra Joshi. 7. The appellant was examined under Section 313 of the Code of Criminal Procedure, 1973. According to him, the witnesses have falsely deposed against him. In fact, he had stated that had he tortured his wife, she would not have gone to the S.P. for his reinstatement. She would have complained against him at that relevant time also. According to the appellant, he is innocent; he never demanded money; he never tortured or harassed the deceased, his wife. He further stated that the deceased was mentally puzzled due to his suspension and he has been falsely implicated in the case. 8. In his defence, the appellant has examined DW1 Bhairav Dutt Ghildiyal. 9. According to the appellant, he is innocent; he never demanded money; he never tortured or harassed the deceased, his wife. He further stated that the deceased was mentally puzzled due to his suspension and he has been falsely implicated in the case. 8. In his defence, the appellant has examined DW1 Bhairav Dutt Ghildiyal. 9. After hearing the parties, by the impugned judgment and order, the court below convicted the appellant under Sections 304 -B, 498-A IPC and Section 4 of the Act and sentenced him, as stated above. 10. Learned counsel for the appellant submits that the prosecution has utterly failed to prove its case beyond reasonable doubt. The appellant ought to have been acquitted of the charge framed against him. But, the court below has committed an error in convicting and sentencing the appellant. He submits that, in fact, the prosecution has not been able to prove that the death of the deceased was homicidal or other than under normal circumstances within seven years of her marriage. He raised the following points in his submission:- i. The postmortem report does not record that any viscera in any jar was ever handed over to the police, who brought the dead body for postmortem. ii. Doctor Pradeep Kumar Chaudhary was examined as PW8. He has also not stated that in how many jars, if any, the viscera was handed over. iii. The General Diary Entry, which is Ex. A-12 and A-13 records that, in fact, two jars were handed over to the carrier to deposit the jars for forensic examination to the Forensic Science Laboratory. iv. The trial court had forwarded two jars for forensic examination, the letter indicating it is paper no.13A/12 in the trial court record. But, according to him, the Forensic Science Laboratory Report, in which the prosecution relies reveals that there were three jars. It is argued that, if according to the General Diary Entry of the Police Station, two jars were forwarded, how could three jars were received at the Forensic Science Laboratory? According to him, either the articles sent to the Forensic Science Laboratory were tampered or article pertaining to some other case was examined in this case. It in any case, creates strong suspicion to the credibility of this report, which cannot be read into evidence. 11. According to him, either the articles sent to the Forensic Science Laboratory were tampered or article pertaining to some other case was examined in this case. It in any case, creates strong suspicion to the credibility of this report, which cannot be read into evidence. 11. Learned counsel also raises the following points in his submissions:- i. It is not a case of forceful administration of poison because there are no sign of struggle on the person of the deceased. ii. It is not a case of demand of dowry or harassment or torture in connection therewith. He referred to the statements of PW1 Gopal Dhyani, PW2 Smt. Kusuma Devi and PW3 Smt. Saruli Devi that the statements are much vague and on multiple points, there are a lot of contradictions. iii. Insofar as PW4 Km. Pooja, the sister and PW5 Damodar Dhyani, the father of the deceased are concerned, their statements are vague and they did not speak anything with regard to demand of dowry. iv. Learned counsel for the appellant submits that the appeal deserves to be allowed and the appellant may be acquitted. 12. On the other hand, learned State Counsel submits that there is a procedure for sending viscera for forensic examination. According to her, along with the viscera preserved in the jar, preservative is also sent, so as to rule out any possibility that contamination has been done due to the preservative. She submits that accordingly, it has been done. 13. The Court particularly asked that if the General Diary Entry Report No.32 of dated 01.04.2019 and Report No.9 of 04.04.2019, which are Exs. A-12 and A-13 contained two jars, which have been sent for forensic examination, how could three jars were sent for forensic examination, when the court’s forwarding letter while sending the viscera for forensic examination also records that two jars were forwarded? To which, learned State Counsel submits that it is a matter of record. But, she submits that if there were three jars in the Forensic Science Laboratory Report, the defence ought to have questioned that part of Forensic Science Laboratory Report during trial. 14. Learned State Counsel also submits that admittedly, there was financial stringing in the family of the appellant as he had been suspended from the police service. Admittedly, the deceased was worried about it. 14. Learned State Counsel also submits that admittedly, there was financial stringing in the family of the appellant as he had been suspended from the police service. Admittedly, the deceased was worried about it. Further, it is argued that the evidence of PW1 Gopal Dhyani, PW2 Smt. Kusuma Devi and PW3 Smt. Saruli Devi, who are relatives of the deceased cannot be discarded on the ground that they are relatives. 15. Learned State Counsel refers to the judgment of the Hon’ble Supreme Court, in the case of Rajinder Kumar Vs. State of Haryana , (2015) 4 SCC 215 . In the case of Rajinder Kumar (supra), the Hon’ble Supreme Court has held that the statement of family members of the deceased cannot be discarded on the ground that they are relatives. She also submits that in the case of financial stringency, demand of money amounts to dowry. She would refer to the judgment in the case of Rajinder Singh Vs. State of Punjab , (2015) 6 SCC 477 . 16. In fact, in the case of State of Punjab (supra), the Hon’ble Supreme Court held that the law laid down in the case of Appasaheb Vs. State of Maharashtra , (2007)9 SCC 721 is not a good law and in para 20 the Hon’ble Supreme Court observed as follows: “20 [Ed. : Para 20 corrected vide Official Corrigendum No. F.3/Ed.B.J./16/2015 dated 6-4-2015.] . Given that the statute with which we are dealing must be given a fair, pragmatic, and common sense interpretation so as to fulfil the object sought to be achieved by Parliament, we feel that the judgment in Appasaheb case [Appasaheb v. State of Maharashtra, (2007) 9 SCC 721 (2007) 9 SCC 721 : (2007) 3 SCC (Cri) 468] followed by the judgment of Vipin Jaiswal [Vipin Jaiswal v. State of A.P., (2013) 3 SCC 684 : (2013) 2 SCC (Cri) 15] do not state the law correctly. We, therefore, declare that any money or property or valuable security demanded by any of the persons mentioned in Section 2 of the Dowry Prohibition Act, at or before or at any time after the marriage which is reasonably connected to the death of a married woman, would necessarily be in connection with or in relation to the marriage unless, the facts of a given case clearly and unequivocally point otherwise.” 17. Undoubtedly, the demand of dowry and harassment in connection therewith is a something which happened within the four walls of the house, the best witness could be the family members to whom the deceased could confide. Merely on the ground that the witnesses are relatives of the deceased their testimony cannot be discarded. But, the rule of prudence also requires that testimony of the witnesses, be it relatives or otherwise, in any case, has to be scrutinized under the facts and circumstances of each case. 18. Some facts in the instant case are admitted. The deceased and the appellant were married on 21.02.2018 and the death took place on 25.03.2019. It is just over a year that the marriage could not continue and the deceased died. The appellant has been convicted and sentenced under Sections 304 -B, 498-A IPC and Section 4 of the Act. Before any discussion is made, it may be apt to see as to what are the requirements of the offence under Section 304 -B , which is as follows:- “ 304B. Dowry death .—(1) 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 her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death. Explanation.—For the purposes of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.” 19. A bare reading of it makes it abundantly clear that in order to attract the provisions of Section 304 -B, it has to be shown that:- i. The death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances. ii. Such death must have been occurred within seven years of marriage. iii. It has to be shown that soon before her death she was subjected to cruelty or harassment. iv. ii. Such death must have been occurred within seven years of marriage. iii. It has to be shown that soon before her death she was subjected to cruelty or harassment. iv. Such harassment or cruelty has been caused by her husband or any relative of her husband and; v. This harassment or cruelty has been done in connection with, any demand for dowry. 20. The first and foremost test is to see, as to whether the death has been caused other than under normal circumstances, but before it is appreciated it will be apt to examine as to what the witnesses have stated at trial. 21. PW1 Gopal Dhyani is the informant. He has proved the FIR. According to him, after marriage with the deceased on 21.02.2018, the deceased was harassed and tortured by the appellant and his mother. They would ask her to bring money from her parents and this witness. According to this witness, at the time of marriage, they had given dowry as per their capacity. But, last time, the deceased called the wife of this witness on 25.03.2019 in the morning and told that the appellant has been pressurizing her to get money from her parents and brother and also harassed the deceased. According to the witness, she was crying. This witness has proved the FIR as Ex. A-1. According to him, he had given the list of articles/gifts that were given to the deceased at the time of marriage, which is Ex. A-2. 22. PW2 Kusuma Devi is the wife of PW1 Gopal Dhyani. She has also corroborated her statement. PW3 Smt. Saruli Devi is the mother of the deceased. She has also supported the statements of PW1 Gopal Dhyani and PW2 Kusuma Devi. Similarly, PW4 Km. Pooja, the sister of the deceased and PW5 Damodar Dhyani, the father of the deceased has also, in their examination stated about demand of dowry and harassment. 23. PW6 Balkrishna is the person, who first spotted the dead body of the deceased. 24. PW7 Mainpal Singh, Naib Tehsildar has conducted the inquest and proved it and other documents with regard to the dead body, etc. 25. PW8 Dr. Pradeep Kumar Chaudhary conducted the postmortem of the deceased on 26.03.2019. According to him, nothing abnormal was found in the internal organs. The cause of death could not be ascertained. Therefore, viscera was preserved. 24. PW7 Mainpal Singh, Naib Tehsildar has conducted the inquest and proved it and other documents with regard to the dead body, etc. 25. PW8 Dr. Pradeep Kumar Chaudhary conducted the postmortem of the deceased on 26.03.2019. According to him, nothing abnormal was found in the internal organs. The cause of death could not be ascertained. Therefore, viscera was preserved. He has proved the report as Ex. A-8. 26. PW9 Kaushlendra Tripathi is a Nodal Officer with the Service Provider of the said services. He has stated about the cell number of PW1 Gopal Dhyani and said on 25.03.2019, between 9:00–10:00 a.m., PW1 received three calls from the mobile number xxxxxx9278. He has also proved the certificate under Section 65 -B of the Indian Evidence Act, 1972. 27. PW10 Tilak Ram Verma was the Inspector In-charge of the concerned Police Station who received the information about the dead body. He has supervised the recovery and inquest of the dead body and stated about it. 28. PW11 Constable Prakash Singh Gaida is the G.D. Writer. He has proved it. 29. PW12 Mahesh Chandra Joshi is the Investigating Officer. He has proved the site plan and after investigation submitted charge-sheet. 30. DW1 Bhairav Dutt Ghildiyal has stated that he was continuously talking to the deceased. He was a relative to the parties. According to him, at the time of marriage, both the parties were aware of their respective financial conditions; the deceased had never revealed to him that the appellant demands money and caused harassment and torture to her. 31. First and foremost, it is to be seen, as to whether the death has been caused other than under normal circumstances? The postmortem report which has been proved by PW8 Dr. Pradeep Kumar Chaudhary does not record that any jar was handed over to the police. The postmortem report records that after postmortem along with dead body, eight police papers, two copies of the postmortem report were handed over to police. 32. According to Annexure A-12, the General Diary Entry No.32 of 01.04.2019 of Police Station Kotwali, Bageshwar, on that date, from the Malkhana of the Police Station, two jars were given to CP Amit Devrani, so that they may be produced before the court for forensic examination and Ex. 32. According to Annexure A-12, the General Diary Entry No.32 of 01.04.2019 of Police Station Kotwali, Bageshwar, on that date, from the Malkhana of the Police Station, two jars were given to CP Amit Devrani, so that they may be produced before the court for forensic examination and Ex. A-8 is the General Diary Entry No.09 on 04.04.2019 at 07:10 hours, which records that two jars were deposited in the Forensic Science Laboratory. Not only this, in the trial court record, there is a communication of the court dated 01.04.2019 page no.13A/12, which records that two jars were forwarded to the Forensic Science Laboratory. 33. Forensic Science Laboratory Report records three jars were received. As per General Diary Entry of Police Station, Bageshwar Ex. A-12 and Ex. A-13, two jars were forwarded for forensic examination. The court’s record also established that two jars were forwarded to Forensic Science Laboratory. What was detected in the Forensic Science Laboratory Report is three jars? How can it be said that the same articles were examined in the instant case by Forensic Science Laboratory which was preserved by the doctors? At the cost of repetition, it is stated that the doctor has not stated about handing over of any jar(s) containing viscera and saline matter. 34. On behalf of the State, it is argued that out of three jars, two jars contained viscera and one jar had the preservative so as to rule out that the contamination was due to the preservative. Postmortem report does not record about handing over of any jars. The doctor conducting postmortem has also not stated anything about it. Police record reveals forwarding of two jars. Similarly court’s record reveals that only two jars were sent for forensic examination. The question is, who gave this third jar containing preservative? There is no answer from the side of the State to this question. Therefore, we are of the considered view that this Forensic Science Laboratory Report cannot be read in evidence in this case. 35. On behalf of the State, it has also been argued that there were three jars in the Forensic Science Laboratory Report, but if the appellant had not raised this issue in the trial court. It makes less difference. Therefore, we are of the considered view that this Forensic Science Laboratory Report cannot be read in evidence in this case. 35. On behalf of the State, it has also been argued that there were three jars in the Forensic Science Laboratory Report, but if the appellant had not raised this issue in the trial court. It makes less difference. The Court, in fact, offered an opportunity to the learned State Counsel to get further material, if any, as to how to reconcile sending out the two jars by the court and detection of three jars by the Forensic Science Laboratory Report. In view of it, we cannot hold any reliance with regard to cause of death on the Forensic Science Laboratory Report which has been placed by the prosecution in the instant case. And in the absence of Forensic Science Laboratory Report, it cannot be said as to how the deceased died. In other words, it cannot be said that the deceased died other than under normal circumstances, which is one of the essentials to attract the provisions of Section 304 -B IPC . 36. The question of demand of dowry is another issue, which definitely requires deliberation by this Court despite the findings that has been recorded hereinabove. The Court needs to record the finding on this aspect as well. 37. At the very outset, it is stated that PW4 Km. Pooja is the sister of the deceased and PW5 Damodar Dhyani is the father of the deceased. The court below did not accept their testimony and para 33 of the impugned judgment records that based on their testimony it cannot be concluded that soon before the death the deceased was harassed and tortured in connection with demand of dowry and this finding has been recorded on the ground that whatever these witnesses have stated in the court, they did not say so to the Investigating Officer. The perusal of the statement of PW4 Km. Pooja and PW5 Damodar Dhyani as well as the statement of PW12 Mahesh Chandra Joshi support this finding. Even otherwise nothing has been argued on behalf of the State on this point. 38. Essentially the statements of PW1 Gopal Dhyani, PW2 Smt. Kusuma Devi and PW3 Smt. Saruli Devi need deliberation on this aspect. 39. PW1 Gopal Dhyani states that the deceased was harassed and tortured in connection with demand of dowry. Even otherwise nothing has been argued on behalf of the State on this point. 38. Essentially the statements of PW1 Gopal Dhyani, PW2 Smt. Kusuma Devi and PW3 Smt. Saruli Devi need deliberation on this aspect. 39. PW1 Gopal Dhyani states that the deceased was harassed and tortured in connection with demand of dowry. According to him, whenever the deceased visited his house, she would complain that the appellant and her mother in law would demand dowry and for that reason harass and torture her. In para 13 of his statement, PW1 Gopal Dhyani records that once he had deposited Rs.2,000/- in an account of a person from whom the deceased had taken loan. He also tells that, in fact, once the deceased had come to Ramnagar where he had given Rs.5,000/- to her. 40. The Court needs to test the veracity of the statements of the family members as well. Merely because the family members would be the best witnesses in such cases, their testimony cannot be accepted. It has to undergo the scrutiny of the court so as to test their credibility. 41. PW2 is Smt. Kusuma Devi, wife of PW1 Gopal Dhyani. She has not stated that anytime Rs.5000/- was given to the deceased. In fact, in para 14 of her statement, she tells that once the deceased had visited to their house along with the appellant, where appellant drank whole night, abused and did maar peet with his wife, the deceased and PW1 Gopal Dhyani and demanded money. Thereafter, collectively they gave Rs.1,000/- to the deceased. This is not the version of PW1 Gopal Dhyani. PW2 Smt. Kusuma Devi has not stated that Rs.5,000/- were given to the appellant ever. But, even with regard to the payment of Rs.1,000/-, PW2 Smt. Kusuma Devi speaks that she has not stated so to the Investigating Officer. This fact has been admitted by the PW2 Smt. Kusuma Devi in para 36 of her statement. The statements of PW1 Gopal Dhyani and PW2 Smt. Kusuma Devi when touched with regard to the payment of Rs.5,000/- are not corroborative. In fact, the statements are contradictory with regard to the payment of Rs.5,000/-. On the one hand, PW1 Gopal Dhyani tells that he has given Rs.5,000/- to the deceased, but this he has not stated to the Investigating Officer, as admitted by PW12 Mahesh Chandra Joshi in para 32 of his statement. In fact, the statements are contradictory with regard to the payment of Rs.5,000/-. On the one hand, PW1 Gopal Dhyani tells that he has given Rs.5,000/- to the deceased, but this he has not stated to the Investigating Officer, as admitted by PW12 Mahesh Chandra Joshi in para 32 of his statement. 42. PW3 Smt. Saruli Devi is mother of the deceased. According to her, the victim was harassed by the appellant and his mother. She is not specific as to what was ever given to the appellant or the deceased. In para 28 of her statement, in fact, she tells about the mother-in-law of the deceased. According to her, once the mother-in-law had visited the deceased in Bageshwar and she had paid all the dues to the borrowers. 43. With regard to the demand of money, the testimony of PW1 Gopal Dhyani, PW2 Smt. Kusuma Devi and PW3 Smt. Saruli Devi is not reliable. It cannot be said that the deceased was harassed and tortured in connection with demand of dowry soon before her death. 44. In the instant case, as stated the prosecution has not been able to establish the cause of death. The prosecution has failed to prove that the deceased died other than under normal circumstances. The prosecution has also not been able to prove that the deceased was ever harassed and tortured by the appellant for and in connection with any demand of dowry. 45. In view of the foregoing discussions, we are of the view that the prosecution has not been able to prove the charge levelled against the appellant and the appellant ought to have been acquitted of the charge. The court below committed an error in convicting and sentencing him. Therefore, the appeal deserves to be allowed. 46. The appeal is allowed. 47. The judgment and order dated 29.08.2019/31.08.2019, passed in Sessions Trial No.09 of 2019, State vs. Anil Ghildiyal, by the court of Additional Sessions Judge Bageshwar is set aside. 48. The appellant is acquitted of the charge under Sections 304 -B, 498-A IPC and Sections 4 of the Act. 49. The appellant is in jail. 46. The appeal is allowed. 47. The judgment and order dated 29.08.2019/31.08.2019, passed in Sessions Trial No.09 of 2019, State vs. Anil Ghildiyal, by the court of Additional Sessions Judge Bageshwar is set aside. 48. The appellant is acquitted of the charge under Sections 304 -B, 498-A IPC and Sections 4 of the Act. 49. The appellant is in jail. Let he be released forthwith, if not wanted in any other case, subject to his furnishing personal bonds and two sureties, each of the like amount to the satisfaction of the court concerned, under Section 437 -A of the Code within a period of four weeks. 50. Let a copy of this judgment be sent to the court below along with the original records.