Uttarakhand High Court
Anil Ghildiyal vs State Of Uttarakhand on 16 March, 2026
Author: Ravindra Maithani
Bench: Ravindra Maithani
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No. 553 of 2019
Anil Ghildiyal ............Appellant
Vs.
State of Uttarakhand ........... Respondent
Present : Mr. S.R.S. Gill, Advocate for the applicant/appellant.
Ms. Manisha Rana Singh, Deputy Advocate General with Mr. Rakesh
Negi, Brief Holder for the State.
JUDGMENT
Coram : Hon'ble Ravindra Maithani. J.
Hon'ble Siddhartha Sah, J.
Hon'ble Ravindra Maithani, J. (Oral)
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 302 IPC and Section 3 of the Dowry
Prohibition Act, 1961 (“the Act”) and has been convicted under
Sections 304-B, 498-A IPC 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.
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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. 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
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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 304-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
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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
5carrier 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. 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.
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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. 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
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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
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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 IPC, 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:-
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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. 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.
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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.
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.
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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
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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
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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. 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
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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.
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.
15
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.
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.
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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.
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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.
(Siddhartha Sah, J.) (Ravindra Maithani, J.)
16.03.2026
Sanjay
SANJAY
Digitally signed by SANJAY KANOJIA
DN: c=IN, o=HIGH COURT OF UTTARAKHAND,
ou=HIGH COURT OF UTTARAKHAND,
2.5.4.20=e50e50b49596520698eff87e0a08bbd5
04686df4d1afc60f54a287831dec46fe,
KANOJIA
postalCode=263001, st=UTTARAKHAND,
serialNumber=26EEB7122ED0DD23233A255DD
8EC450A84B515A087CAEFD1B3179A7DEAE406
99, cn=SANJAY KANOJIA
Date: 2026.03.24 11:20:30 +05’30’
