Patna High Court
Bhupnarayan Yadav & Ors vs The State Of Bihar on 31 October, 2018
Equivalent citations: AIRONLINE 2018 PAT 1767
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.450 of 2015
Arising Out of PS.Case No. -19 Year- 2012 Thana -KATORIA District- BANKA
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1. Bhupnarayan Yadav, aged about 55 years s/o Late Amin Yadav.
2. Kushmi Devi, aged about 50 years w/o Bhupnarayan Yadav,
3. Deepak Kumar Yadav @ Dipu Yadav, aged about 24 years s/o-Bhupnarayan
Yadav, All resident of Village- Kaligadhi, P.S.- Katoria, District- Banka.
.... .... Appellant/s
Versus
1. The State of Bihar .... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Rajeev Kumar Singh,
Mr. Sitaram Prasad,
Mr. Anjani Kumar,
Mr. Shailendra Kumar Singh, Advocates.
For the Respondent/s : Mr. Sujit Kumar Singh, APP
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV JUDGMENT
Date: 31-10-2018
Against the judgment of conviction and order of sentence
dated 23.06.2015 passed by Additional Sessions Judge-5th Banka in
Sessions Trial No. 92/2015 holding the appellants, namely,
Bhupnarayan Yadav, Kushmi Devi andDeepak Kumar Yadav @ Dipu
Yadav guilty for an offence punishable under Section 304B/34 of the
IPC and directing each one to undergo RI for 7 years as well as to pay
fine of Rs. 1000/-, each in default thereof, to undergo SI for 1 and a ½
years additionally, with a direction that the sentences will run
concurrently, with a further direction to set off the period having been
undergone during course of trial as provided under Section 428 of the
CrPC, instant appeal has been filed.
2. Mukesh Yadav gave his Fard-e-beyan on 01.02.2012
disclosing therein that his daughter, Nitu Devi (since deceased) was
married with Ram Krishna Yadav, son of Bhupnarayan Yadav in the
Patna High Court CR. APP (SJ) 2
month of July 2010. At the time of marriage, he, apart from other
items had also gifted one Hero Honda Splendor Motorcycle. After
marriage, his daughter had gone to her Sasural where, during course
of her stay, approximately after six months, his son-in-law as well as
Samdhi directed his daughter to procure money from him in order to
facilitate construction of Pucca house. On refusal at the end of his
daughter in the background of financial constraints, his son-in-law,
Samdhi, Samdhin and younger brother-in-law of his daughter began
to coax her. Not only this, they also forced her to starve. In usual
course, he went to meet his daughter and at that occasion, she narrated
the sequence faced by her and further, stated that her husband, father-
in-law, mother-in-law and brother-in-law are saying that if you do not
procure money from your father in order to facilitate construction of a
pucca house, then in that event, they will not allow her to stay. They
are also threatening that they will do away with her life. After coming
to know about the same, he talked with his son-in-law, Samdhi,
Samdhin and said that being poor, he is unable to pay for construction
of a house so, he be excused and for that, his daughter should not be
harassed. Subsequently thereof, they told his daughter that if her
father is not capable to get pucca house constructed, then direct him to
provide a colour TV and a golden chain. Again his daughter refused to
oblige them, whereupon, they began to inflict cruelty upon her. She
was subjected to manhandling frequently. Lastly, on 27.01.2012, his
daughter was kicked out with a direction not to revisit as her
Patna High Court CR. APP (SJ) 3
husband is going to remarry. His daughter after arriving at his place,
disclosed her miseries, as well as direction having been given by her
Sasuralwala. Then he along with Umesh Yadav, Sriprasad Yadav, his
daughter had gone to Sasural of his daughter on 30.01.2012 and then
after having a talk with Samdhi, Samdhin, Son-in-law, younger
brother of son-in-law returned back leaving his daughter. Again on
31.01.2012, he along with Umesh Yadav, Sriprasad Yadav, Hari Kishore Yadav, Naresh Yadav, Antu Yadav came to the Sasural of his daughter where, in order to resolve the issued convened a Panchayati whereunder, the accused persons became adamant for colour TV as well as a golden chain which, lastly he accepted asking for some time so that during intervening period, money be managed in order to fulfill their demand. They returned back at about 8:00 PM leaving his son there. Today at 6:00 AM, his son telephonically informed him that the accused persons forcibly administered poison to her, on account thereof, her condition is deteriorating, so come at once. He also requested to come soon. Just after receiving the news, he along with Sriprasad Yadav, Umesh Yadav, Suresh Yadav, Tulsi Pd. Marik proceeded and after arrival, met with his daughter. At that very time, froth was coming out from the mouth of his daughter. On query, his daughter has disclosed that all the accused persons forcibly administered poison to her. Anyhow, she be saved. Then, they lifted her on a cot to go to hospital and during midst thereof, at Dhamdhamia Patthar, she collapsed.
Patna High Court CR. APP (SJ) 4
3. After registration of Katoria PS Case No. 19/2012, investigation commenced and same concluded by way of submission of charge-sheet at an earlier occasion against accused, Ram Krishna Yadav while Bhupnarayan Yadav and Dipu @ Deepak were not sent for trial, keeping the investigation pending against Kusmi Devi. It is further evident that vide order dated 23.04.2012 cognizance of an offence punishable under Section 328, 304B/34 IPC was taken and accused, Ram Krishna Yadav, Bhupnarayan Yadav, Dipu @ Deepak Yadav were summoned to face trial. Appearance of accused Bhupnarayan Yadav and Dipu @ Deepak Yadav could not procured, on account thereof, vide order dated 15.12.2012, case of aforesaid Bhupnarayan Yadav and Dipu @ Deepak Yadav were separated from custodial accused, Ram Krishna Yadav and on the basis thereof, Sessions Trial No. 16/2013 commenced whereunder all the material witnesses became hostile. Side by side the learned lower court also failed to summon the Investigating Officer, the doctor. Also failed to procure FSL report and in the aforesaid background, vide judgment dated 16.07.2013 acquitted Ram Krishna Yadav, the husband of the deceased.
4. It is evident from the supplementary record that supplementary charge-sheet was submitted against Kusmi Devi who was also summoned vide order dated 18.05.2013 and lastly, they all surrendered on 17.03.2015 and accordingly, they were committed on 18.03.2015 whereupon, Sessions Trial No. 92/2015, the present one Patna High Court CR. APP (SJ) 5 originated, followed with trial and by the judgment impugned, all the appellants have been convicted and sentenced in a manner as indicated above, the subject matter of instant appeal.
5. Defence case as is evident from the mode of cross- examination as well as statement recorded under Section 313 CrPC is that of complete denial. It has also been pleaded that deceased was suffering from severe ailment for which, she was being treated but, unfortunately, she could not survived. However, nothing has been adduced in defence.
6. In order to substantiate its case, prosecution had examined altogether 10 PWs out of whom PW-1, Rakhi Devi, PW-2, Lakhi Devi, PW-3 Sheela Devi, PW-4, Hari Kishore Kumar, PW-5, Shriprasad Yadav, PW-6, Mukesh Yadav, PW-7, Birendra Yadav, PW-8, Dr. Shailendra Kumar, PW-9, Rajnandan Kumar and PW-10, Rajesh Kumar Mandal. Signature of informant over Fard-e-beyan has been marked as Ext-1, FSL report as Ext-2, Postmortem report as Ext- 3, Signature of witnesses over Inquest Report, Ext-4 Series, inquest report as Ext-5. As stated above, nothing has been adduced on behalf of defence.
7. From the record, it is evident that as inquest report, Fard-e-beyan remained with case record of Sessions Trial No. 16/2013 (original record) relating to husband, Ram Krishna Yadav, on account thereof, the aforesaid record has been attached with the instant Sessions Trial No. 92/2015 and while transmitting the lower Patna High Court CR. APP (SJ) 6 court record, the same has also been transmitted.
8. Learned counsel for the appellants right from beginning argued ardently and submitted that the evidences whatsoever been collected in the present case, could not be looked into in the background of earlier version of those witnesses who, during course of their examination, had not supported the case of the prosecution whereupon husband was acquitted. When husband has already been acquitted, then in that event, other family members could not be convicted.
9. It has also been submitted that material witnesses, like previous trial, have not supported the prosecution case, Investigating Officer has not been examined, the doctor had not found external or internal ante-mortem injury, so-called dying declaration gone away, then in that circumstance, mere on the basis of FSL report, conviction would not have been recorded as there remains nothing to point out against the appellants to be author of the crime.
10. The learned APP vehemently opposed the same and submitted that the evidences whatever been collected relating to Sessions Trial No. 16/2013 could not be read in the present context as, the recording of aforesaid evidences was relating to only Ram Krishna Yadav (since acquitted). Also submitted that due to ignorance of the lower court, relevant material could not come resulting acquittal, while in the present case, those materials are, as a result of which, after scrutinizing, appreciating those materials, judgment impugned Patna High Court CR. APP (SJ) 7 has been passed. So, this appeal is fit to be dismissed.
11. During course of scrutiny of the lower court record, it has been found that in the present sessions trial the doctor has been examined, part Investigating Officer has been examined, postmortem is an exhibit, FSL report is an exhibit. From FSL report relating to viscera, it is apparent that deceased died of poison. When the lower court record of Sessions Trial No. 16/2013 has been gone through, it has been found that learned lower court had not taken sincere effort to procure attendance of Investigating Officer as well as doctor and in likewise manner, failed to have an exhibit of the postmortem report, FSL report. That means to say, by his act, allowed the accused to go scot-free whereupon invoking the extraordinary power as noted under Article 226 of the Constitution, acquitted accused, Ram Krishna Yadav was show-caused and in likewise manner, an explanation was also called for from the learned P.O. (relating to Trial No. 16/2013) and the same is available on the record.
12. The learned P.O. has submitted his explanation through Deputy Registrar dated 18.07.2018. In the show-cause, he had mainly relied upon that during training course at Bihar Judicial Academy, it was impressed upon several times that where witness of fact does not support the charge, the court need not waste its valuable time in summoning the official witnesses and so, finding all the material witnesses hostile to the prosecution, he followed the sermon whatsoever been given at Bihar Judicial Academy as well as Patna High Court CR. APP (SJ) 8 considering the prayer of the learned APP that he has nothing to produce, closed the case and acquitted the accused.
13. What is the duty of the Court, to be only a silent spectator or to search out the truth. Whether court is supposed to be doll, has to twist as per wish of the party and has to take its own initiative in order to search out truth. Whether court is handicap irrespective of presence of Section 311 CrPC as well as Section 165 of the Evidence Act. The case diary which happens to be part of the record, though for its limited purpose, at the relevant stage was accessible to the Court, even then ignored, justify the action of the P.O. while acquitting the accused on brazen ground, as narrated by the P.O concerned that at Bihar Judicial Academy, they have been given a lesson to proceed where witness became hostile. In State through PS Lodhi Colony, New Delhi v. Sanjeev Nanda as reported in (2012) 8 SCC 450 , it has been observed as follows:-
99. Witness turning hostile is a major disturbing factor faced by the criminal courts in Ind ia. Reasons are many for the witnesses turning hostile, but of late, we see, especially in high profile cases, there is a regularity in the witnesses turning hostile, either due to monetary consideration or by other tempting offers which undermine the entire criminal justice system and people carry the impression that the mighty and powerful can always get away from the clutches of law thereby, eroding people‟s faith in the system.
100. This court in State of U.P. v. Ramesh Mishra and Anr. [AIR 1996 SC 2766] held that it is equally settled law that the evidence of hostile witness could not be totally rejected, if spoken in favour of the prosecution or the accused, but it can be subjected to closest scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted. In K. Anbazhagan v. Superintendent of Police and Anr. [AIR Patna High Court CR. APP (SJ) 9 2004 SC 524], this Court held that if a court finds that in the process the credit of the witness has not been completely shaken, he may after reading and considering the evidence of the witness as a whole with due caution, accept, in the light of the evidence on the record that part of his testimony which it finds to be creditworthy and act upon it. This is exactly what was done in the instant case by both the trial court and the High Court and they found the accused guilty.
101. We cannot, however, close our eyes to the disturbing fact in the instant case where even the injured witness, who was present on the spot, turned hostile. This Court in Sidhartha Vashisht @ Manu Sharma v. State (NCT o Delhi) [(2010) 6 SCC 1] and in Zahira Habibullah Shaikh v. State of Gujarat [AIR 2006 SC 1367] had highlighted the glaring defects in the system like non-
recording of the statements correctly by the police and the retraction of the statements by the prosecution witness due to intimidation, inducement and other methods of manipulation. Courts, however, cannot shut their eyes to the reality. If a witness becomes hostile to subvert the judicial process, the Courts shall not stand as a mute spectator and every effort should be made to bring home the truth. Criminal judicial system cannot be overturned by those gullible witnesses who act under pressure, inducement or intimidation. Further, Section 193 of the IPC imposes punishment for giving false evidence but is seldom invoked.
14. Whether the High Court could be a silent spectator on account of having not been approached by either of the parties in respect of illegality committed by the learned lower court, has properly been considered by the Hon‟ble Apex Court in the case of Dinubhai Boghabhai Solanki v. State of Gujarat as reported in (2018) 11 SCC 129. After discussing the findings of the High Court whereunder direction for de novo trial was given attracting Article 226 of the Constitution of India, the Hon‟ble Apex Court also concurred the same with a caution that it should be in exceptional Patna High Court CR. APP (SJ) 10 cases. For better appreciation, para-32 thereof is quoted hereinbelow:-
" 32. We may hasten to add that normally such a retrial has to be ordered by the Appellate Court while dealing with the validity and correctness of the judgment of the trial court as this power is expressly conferred upon the Appellate Court by Section 386 of the Cr.P.C. However, in exceptional circumstances, such a power can be exercised by the High Court under Article 226 or by this Court under Article 32 of the Constitution of India. In fact, there are judicial precedents to this effect which have already been mentioned above. There are no shackles to the powers of the Constitutional Court under these provisions, except self-imposed restrictions laid down by Courts themselves. But for that, these powers are plenary in nature meant to do complete justice and to inhibit travesty of justice. Therefore, we are largely in agreement with the conclusion arrived at by the High Court to the effect that the present case was one of those exceptional cases where possibility of witnesses getting hostile because of inducement or threats cannot be ruled out."
15. The Hon‟ble Apex Court had also highlighted para-94 of Bhikhalal Kalyanji Jethava v. CBI, 2017 SCC OnLine Guj 716 under para-44 in the following way:-
"44. Coming to the second aspect of remarks against the Judge, no fault can be formed about the general observations of the High Court about the role of the trial court judge who is not supposed to be a mute spectator when he finds that witnesses after witnesses are turning hostile. Following general comments are made by the High Court in this behalf:
"94. Criticizing the sharp decline of ethical values in public life even in the developed countries much less developing one, like ours, where the ratio of decline is higher is not going to solve the problem. Time is ripe for the Courts to take some positive action. Sections 195 and 340 of the Cr. P.C. could hardly be termed as the effective measures to combat with the menace of the witnesses turning hostile. If the witnesses have been won over in one way or the other, they are bold enough to even face the prosecution under Section 340 of the Cr. P.C. However, the same ultimately does not serve Patna High Court CR. APP (SJ) 11 any purpose because the guilty goes unpunished. In the recent times, the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a sharp judgment so as to achieve the yardstick of disposal. These days when crime is looming large and humanity is suffering and society is so much affected thereby, the duties and responsibilities of the Courts have become much more. Now the maxim let hundred guilty persons be acquitted, but not a single innocent be convicted‟ is, in practice, changing world over and the Courts have been compelled to accept that the „society suffers by wrong convictions and it equally suffers by wrong acquittals‟. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform. The need of the hour is 'robust judging'. The trial Judge is the linchpin in every case, and he has also its eyes and ears. He is not merely a recorder of facts, but a purveyor of all evidence, oral and circumstantial. It is said that a good trial Judge needs to have a 'third ear' i.e. hear and comprehend what is not said. When a material eyewitness, one after the other start resiling from their statements made before the police, this must obviously excite suspicion in the mind of the trial Judge to probe further and question the witness (even if the prosecutor does not do so).
(emphasis supplied)"
16. Now coming to the facts of the instant case, it is evident that PWs-1, 2, 3, 4, 5, and 7 have not supported the case of the prosecution relating to demand, torture although, they have spoken with regard to death within 1 ½ years of marriage. PW-6 is the informant who during examination-in-chief has stated that Nitu Devi, his daughter was married with Ram Krishna Yadav about 1 ½ years ago and on 02.02.2012, he received information from Deoki Devi with regard to ailment of his daughter whereupon, he has gone there and has seen her unconscious. It has also been disclosed at his end Patna High Court CR. APP (SJ) 12 that Ram Krishna Yadav was insisting upon to bring money as dowry for construction of the house. He had demanded one month prior to her death. He has not fulfilled the same, on account thereof, his daughter was murdered. He has further stated that after death of his daughter, he has gone to the police station where recorded his Fard-e- beyan, which was read over to him. Exhibited the signature. Identified the accused. He has further stated that during course of statement before the police he had stated that his daughter had disclosed that his son-in-law, his parents were harassing her in order to procure money. He had also narrated before the police that when he reached at the place of his daughter, he had seen froth coming out from her mouth and on query, she had disclosed that all the accused persons had forcibly administered poison to her. During cross-examination, he has stated that his daughter had not complained against her Sasuralwala, nor he had any kind of grievance. In para-6, he has stated that Ram Krishna Yadav was demanding money for construction of his house with an assurance that he will return the amount. He has further stated that he has informed the police. He was informed by the villagers of Sasuralwala of his daughter. He was recalled and then had exhibited the inquest report.
17. PW-8 is the doctor who had conducted postmortem over the dead body of the deceased, Nitu Devi and had not found either external or internal ante-mortem injury and so, viscera was preserved. However, he disclosed the time elapsed since death within Patna High Court CR. APP (SJ) 13 30 hours. Apart from the fact that FSL report happens to be a public document in terms of Section 293 CrPC, even then, FSL report was tendered before him and after going through the same, he has stated that deceased died by celphos, a pesticide. During cross-examination, he has stated that for the first time, he has seen FSL report in the court.
18. PW-9 is the part Investigating Officer who had simply transmitted the viscera to the FSL for its examination and report. PW- 10 is also a part Investigating Officer who had simply submitted the charge-sheet against Kusmi Devi.
19. On account of deficiency at the end of learned lower court at the staged of framing of charge, shirking itself in discharging its function properly in terms of Section 228 CrPC in order to properly scrutinize the material at least, where the case relates to dowry death, the Hon‟ble Apex Court, in the case of Rajbir @ Raju v. State of Haryana as reported in (2010) 15 SCC 116, has directed all the subordinate courts of India in following manner:-
" 7. We further direct all the trial courts in India to ordinarily add Section 302 to the charge of Section 304- B, so that death sentences can be imposed in such heinous and barbaric crimes against women. Copy of this order be sent to the Registrars General/Registrars of all High Courts, which will circulate it to all trial courts."
20. The aforesaid direction has been tested subsequently in Jasvinder Saini v. State (Govt. of NCT of Delhi) as reported in (2013) 7 SCC 256 and it has been held as follows:-
Patna High Court CR. APP (SJ) 14
"14. Be that as it may the common thread running through both the orders is that this Court had in Rajbir‟s case (supra) directed the addition of a charge under Section 302 IPC to every case in which the accused are charged with Section 304-B. That was not, in our opinion, the true purport of the order passed by this Court. The direction was not meant to be followed mechanically and without due regard to the nature of the evidence available in the case. All that this Court meant to say was that in a case where a charge alleging dowry death is framed, a charge under Section 302 can also be framed if the evidence otherwise permits. No other meaning could be deduced from the order of this Court.
15. It is common ground that a charge under Section 304B IPC is not a substitute for a charge of murder punishable under Section 302. As in the case of murder in every case under Section 304B also there is a death involved. The question whether it is murder punishable under Section 302 IPC or a dowry death punishable under Section 304B IPC depends upon the fact situation and the evidence in the case. If there is evidence whether direct or circumstantial to prima facie support a charge under Section 302 IPC the trial Court can and indeed ought to frame a charge of murder punishable under Section 302 IPC, which would then be the main charge and not an alternative charge as is erroneously assumed in some quarters. If the main charge of murder is not proved against the accused at the trial, the Court can look into the evidence to determine whether the alternative charge of dowry death punishable under Section 304B is established. The ingredients constituting the two offences are different, thereby demanding appreciation of evidence from the perspective relevant to such ingredients. The trial Court in that view of the matter acted mechanically for it framed an additional charge under Section 302 IPC without adverting to the evidence adduced in the case and simply on the basis of the direction issued in Rajbir‟s case (supra). The High Court no doubt made a half hearted attempt to justify the framing of the charge independent of the directions in Rajbir‟s case (supra), but it would have been more appropriate to remit the matter back to the trial Court for fresh orders rather than lending support to it in the manner done by the High Court.Patna High Court CR. APP (SJ) 15
16. In the light of what we have said above, the order passed by the trial Court and so also that passed by the High Court are clearly untenable and shall have to be set aside. That would not, however, prevent the trial Court from re-examining the question of framing a charge under Section 302 IPC against the appellant and passing an appropriate order if upon a prima facie appraisal of the evidence adduced before it, the trial Court comes to the conclusion that there is any room for doing so. The trial Court would in that regard keep in view the decision of this Court in Hasanbhai Valibhai Qureshi v. State of Gujarat and Ors. (2004) 5 SCC 347 where this Court has recognized the principle that in cases where the trial Court upon a consideration of broad probabilities of the case based upon total effect of the evidence and documents produced, is satisfied that any addition or alteration of the charge is necessary, it is free to do so.
17. Reference may also be made to the decisions of this Court in Ishwarchand Amichand Govadia and Ors. v. State of Maharashtra and Anr. (2006) 10 SCC 322 and the decision of the Calcutta High Court in Rajendra Singh Sethia v. State and Ors. 1989 Cri.L.J. 255 and that delivered by the Allahabad High Court in Shiv Nandan and Ors. v. State of U.P. 2005 Cri. L.J 3047 which too are to the same effect. In any such fresh exercise which the trial Court may undertake, it shall remain uninfluenced by the observations made by the High Court on merits of the case including those touching the probative value of the autopsy surgeon‟s opinion."
21. Again this matter came before Hon‟ble the Apex Court for reconsideration in the case of Vijay Pal Singh v. State of Uttarakhand as reported in (2014) 15 SCC 163 wherein it has been held as follows:-
18. However, it is generally seen that in cases where a married woman dies within seven years of marriage, otherwise than under normal circumstances, no inquiry is usually conducted to see whether there is evidence, direct or circumstantial, as Patna High Court CR. APP (SJ) 16 to whether the offence falls under Section 302 of IPC.
Sometimes, Section 302 of IPC is put as an alternate charge. In cases where there is evidence, direct or circumstantial, to show that the offence falls under Section 302 of IPC, the trial court should frame the charge under Section 302 of IPC even if the police has not expressed any opinion in that regard in the report under Section 173(2) of the Cr.PC. Section 304B of IPC can be put as an alternate charge if the trial court so feels. In the course of trial, if the court finds that there is no evidence, direct or circumstantial, and proof beyond reasonable doubt is not available to establish that the same is not homicide, in such a situation, if the ingredients under Section 304B of IPC are available, the trial court should proceed under the said provision. In Muthu Kutty and another v. State by Inspector of Police, T.N.[1], this Court addressed the issue and held as follows:
"20. A reading of Section 304-B IPC and Section 113-B, Evidence Act together makes it clear that law authorises a presumption that the husband or [pic]any other relative of the husband has caused the death of a woman if she happens to die in circumstances not normal and that there was evidence to show that she was treated with cruelty or harassed before her death in connection with any demand for dowry. It, therefore, follows that the husband or the relative, as the case may be, need not be the actual or direct participant in the commission of the offence of death. For those that are direct participants in the commission of the offence of death there are already provisions incorporated in Sections 300, 302 and 304. The provisions contained in Section 304-B IPC and Section 113-B of the Evidence Act were incorporated on the anvil of the Dowry Prohibition (Amendment) Act, 1984, the main object of which is to curb the evil of dowry in the society and to make it severely punitive in nature and not to extricate husbands or their relatives from the clutches of Section 302 IPC if they directly cause death. This conceptual difference was not kept in view by the courts below. But that cannot bring any relief if the conviction is altered to Section 304 Part II. No prejudice is caused to the accused- appellants as they were originally charged for offence punishable under Section 302 IPC along with Section 304-B IPC."Patna High Court CR. APP (SJ) 17
19. In a recent decision, this Court in Jasvinder Saini and others v. State (Government of NCT of Delhi)[2], observed thus:
"15. It is common ground that a charge under Section 304-B IPC is not a substitute for a charge of murder punishable under Section 302. As in the case of murder in every case under Section 304-B also there is a death involved. The question whether it is murder punishable under Section 302 IPC or a dowry death punishable under Section 304-B IPC depends upon the fact situation and the evidence in the case. If there is evidence whether direct or circumstantial to prima facie support a charge under Section 302 IPC the trial court can and indeed ought to frame a charge of murder punishable under Section 302 IPC, which would then be the main charge and not an alternative charge as is erroneously assumed in some quarters. If the main charge of murder is not proved against the accused at the trial, the court can look into the evidence to determine whether the alternative charge of dowry death punishable under Section 304-B is established. The ingredients constituting the two offences are different, thereby demanding appreciation of evidence from the perspective relevant to such ingredients. The trial court in that view of the matter acted mechanically for it framed an additional charge under Section 302 IPC without adverting to the evidence adduced in the case and simply on the basis of the direction issued in Rajbir case. The High Court no doubt made a half-hearted attempt to justify the framing of the charge independent of the directions in Rajbir case, but it would have been more appropriate to remit the matter back to the trial court for fresh orders rather than lending support to it in the manner done by the High Court."
22. Apart form this, when the evidence of PW-6, informant has been minutely scrutinized, it is evident that there happens to be specific discloser at his end that during course of giving statement before the police, he had stated that when he reached at the Patna High Court CR. APP (SJ) 18 place of his daughter, froth was coming from her mouth and on query, she disclosed that all the accused persons forcibly administered poison to her.
23. From the FSL report, it is evident that deceased died of celphos. During course of statement recorded under Section 313 CrPC, there happens to be specific question that deceased died on account of administration of poisonous substance, has remained unexplained at the end of appellants in the background of the fact that appellants have explained the death on account of ailment. Furthermore, as admitted one, that deceased met with her death while staying at her Sasural, her dead body was recovered therefrom, on account thereof, the appellants who had not denied their presence were under obligation to explain the same as provided under Section 106 of the Evidence Act, more particularly, in the background of the fact that those events remained under exclusive domain of the accused.
24. In Gajanan Dashrath Kharate v. State of Maharashtra reported in (2016) 4 SCC 604 wherein it has been held as follows:-
"13. As seen from the evidence, appellant-Gajanan and his father- Dashrath and mother-Mankarnabai were living together. On 07.04.2002, mother of the appellant- accused had gone to another village-Dahigaon. Prosecution has proved presence of the appellant at his home on the night of 07.04.2002. Therefore, the appellant is duty bound to explain as to how the death of his father was caused. When an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 106 of the Evidence Act, there will be a corresponding Patna High Court CR. APP (SJ) 19 burden on the inmates of the house to give cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on the accused to offer. On the date of occurrence, when accused and his father Dashrath were in the house and when the father of the accused was found dead, it was for the accused to offer an explanation as to how his father sustained injuries. When the accused could not offer any explanation as to the homicidal death of his father, it is a strong circumstance against the accused that he is responsible for the commission of the crime.
25. In Harijan Bhala Teja v. State of Gujarat reported in (2016) 12 SCC 665, it has been held as follows:-
"19. Section 106 of the Indian Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Since it is proved on the record that it was only the appellant who was staying with his wife at the time of her death, it is for him to show as to in what manner she died, particularly, when the prosecution has successfully proved that she died homicidal death."
26. In State of Himachal Pradesh v. Rajiv Jassi reported in (2016) 12 SCC 682, it has been held as follows:-
15. In our opinion the judgment and order of conviction passed by the trial court was based upon proper appreciation of evidence, the circumstances found established by trial court in the instant case have been unnecessarily doubted and brushed aside lightly by the High Court. The High Court has unnecessarily doubted the post mortem report which recorded as many as aforesaid seven injuries. There were various contusions of big size on periorbital area, intraorbital area, forehead, upper eyelid, cheek, 8 cm. x 7 cm. contusion over the chin, contusion over the lower lip, 11 cm. x 5 cm. multiple small abrasions over neck and upper chest, 10 cm. x 4 cm. contusion in infra-axillary area. The aforesaid nature of the injuries indicates that they could not have been caused by Patna High Court CR. APP (SJ) 20 convulsions. The accused was in the company of the victim in the same room is not disputed. Thus, it was for him to explain the injuries found on the person of deceased. Exact number of injuries had not been noted by Dr. Chaudhary PW-2 as he himself had admitted that he could not examine the entire body physically as the condition of the victim was precarious and he was busy in giving her treatment then referred her to hospital at Shimla. The victim became unconscious at the house itself. The High Court has unnecessarily doubted the deposition of the autopsy surgeon who has clearly opined that the nature of injuries indicated positively the administration of poison forcibly to the victim. Such injuries could be caused while administering poison forcibly when victim was trying to save herself from that. In the cross-examination Dr. Choudhary, PW-2, has also stated that it could not be a suicidal case. However, on a suggestion being made to the PW-2 and PW-3 that it could be a case of voluntary consumption of poison by the victim to commit suicide, obviously the doctors were not able to deny the said suggestion as they were not eye witnesses. Moreover they were not supposed to be an arbiter on this issue whether the victim had taken the poison herself. Their objective opinion stands writ large that considering the nature of injuries it could be a case of forcible poisoning and in the process accused had caused injuries while deceased had struggled. Thus the approach of High Court cannot be said to be of objective assessment of evidence.
16. The accused was admittedly in the company of the deceased. It was for him to explain so many injuries found on the person of the deceased as to how they were caused including swelling in womb. He has totally failed to explain them. It was not stated by him that the injuries were caused to the deceased due to convulsions. It was not stated by him that she ever fell down during convulsions, if any.
The injuries on her lips, chin, throat and neck etc. as held by the trial court, were caused while administering the poison forcibly is a strong circumstance against the accused which cannot be brushed aside lightly. More so, in view of the overall conduct of the accused to be discussed hereinafter. Injuries were on the front part of the body which indicates that the deceased was subjected to violence before she succumbed due to poisoning. Section 106 of the Evidence Act requires a person having special knowledge of the fact to explain the same as required by section 106 of the Evidence Act, and laid down by this Court in C.S.D. Swami v. The State AIR 1960 SC 7, P.N. Krishna Lal & Ors. v. Govt. of Kerala & Anr. 1995 Supp (2) SCC 187 and Patna High Court CR. APP (SJ) 21 Sidhartha Vashisht @ Manu Sharma v. State (N.C.T. of Delhi) AIR 2010 SC 2352. Failure to explain that the deceased was unconscious position coupled with other evidence is a grave circumstance which militates against such a person.
27. Giving anxious consideration of the facts and circumstances of the case, it is apparent that husband Ram Krishna Yadav was given undue benefit while recording judgment of acquittal by the trial court, and in likewise manner, the learned lower court while proceeding with the trial of Sessions Trial No. 92/2015 failed to follow the direction of the Hon‟ble Apex Court, even failed to invoke provision 216 and 217 CrPC whereunder charge could be amended. As such, issue show-cause against Ram Krishna Yadav as well as appellants as to why not they be held guilty for an offence punishable under Section 302/34 IPC and for that, office is directed so.
28. Because of the fact that this Bench has been assigned to deal with the appeal having sentence up to 10 years, on account thereof, office is directed to place this appeal before Hon‟ble the Chief Justice for getting it listed before the Division Bench.
(Aditya Kumar Trivedi, J)
perwez
AFR/NAFR AFR
CAV DATE 24.08.2018
Uploading Date 31-10-2018
Transmission 31-10-2018
Date