Patna High Court
Mina Devi & Anr vs The State Of Bihar on 25 April, 2014
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.252 of 2012
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1. Mina Devi wife of Sri Arun Kumar Singh,
2. Bikrant Kumar son of Sri Arun Kumar Singh, both residents of Village-Gorhari,
P.S. Bela, District-Sitamarhi
.... .... Appellant/s
Versus
The State of Bihar
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Sunil Pd. Singh, Adv.
For the Respondent/s : Mr. S.N.Prsad, APP
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 25-04-2014
Both the appellants namely, Mina Devi (mother-in-
law of deceased, Pinki Kumari @ Bullu Kumari) and Bikran Kumar
(husband of deceased, Pinki Kumari @ Bullu Kumari) have been
found guilty for an offence punishable under Sections 304(B) of the
IPC vide judgment dated 24.03.2012 and each one has been directed
to undergo RI for 10 years vide order of sentence dated 27.03.2012
passed by Additional Sessions Judge-FTC-II, Sitamarhi in Sessions
Trial No. 161 of 2000/ 89 of 2009 have challenged the same under
instant appeal.
2. Ram Niranjan Singh (PW-3) had recorded his
Fard-e-beyan at his house lying at village-Gargatta before Officer-in-
charge, Runni Saidpur P.S. on 18.02.1999 at about 12:05 p.m. along
with his brother Ram Dahin Singh (PW-11) disclosing therein that his
Patna High Court CR. APP (SJ) No.252 of 2012 dt.25-04-2014 2
daughter Pinki Kumari @ Bullu Kumari was married with Bikrant
Kumar son of Arun Kumar Singh of Villager-Gorhari, P.S.-Bela,
Distt-Sitamarhi in the year 1996. At that very time, he had given
dowry according to his means. After marriage, his daughter was
residing in her Sasural and occasionally visited her Naihar. She had
begotten a daughter who is aged about 1 and ½ years. Then, it has
been asserted that his daughter was subjected to cruelty and
harassment for fulfilment of demand of dowry in the form of
motorcycle which she had repeatedly informed. To save his daughter
from consistent torturous treatment at the end of her in-laws, he had
provided second hand Rajdoot Motorcycle. Even thereafter, they did
not stop demanding dowry rather frequent demand was being
advanced for Rs. 10,000/- 5,000/- at due interval by her in-laws over
which he had shown his inability. They did not feel quiet. On his
repeated request not to torture his daughter. Apart from torturing his
daughter they even did not permit his daughter to have meal and on
account thereof, for days together she faced starvation. All these
things were being reported to them as well as to his wife by the
daughter. He had repeatedly tried to get the matter pacified, however,
that did not persuade.
3. It has further been disclosed that in the aforesaid
background, in the previous night her mother-in-law, Mina Devi,
Patna High Court CR. APP (SJ) No.252 of 2012 dt.25-04-2014 3
Father-in-law, Arun Kumar Singh, husband, Bikrant Kumar murdered
her daughter by knotting her neck with string and then at about 6:00
a.m. dumped her dead body by the side of road in from of his house
from jeep. They have disclosed that on account of stomachache, she
died. Because of the fact that they have got no manpower to get the
funeral of the dead body done in proper way therefore, they have
brought the same. When they have seen the dead body of Pinki
Kumari @ Bullu Kumari, they found ligature mark around her neck.
Till then, Mina Devi and Bikrant Kumar started fleeing from there but
were apprehended by the villagers. Simultaneously, police was also
informed and accordingly, after arrival of police both the two were
produced.
4. On the basis of aforesaid Fard-e-beyan, Bela P.S.
Case No. 10 of 1999 was registered whereupon investigation
commenced and after concluding the same, charge-sheet was
submitted facilitating the trial of appellants meeting with ultimate
result, the subject matter of instant appeal.
5. The defence case as is evident from the mode of
cross-examination as well as from the statement recorded under
Section 313 of the Cr.P.C. is of complete denial of occurrence as well
as victim of false implication. It has also been pleaded that the
deceased at the relevant time was staying at her Naihar where she had
Patna High Court CR. APP (SJ) No.252 of 2012 dt.25-04-2014 4
quarrel with her mother (PW-4) who left the house and went to her
Naihar, on the other hand, deceased out of anguish met with
unfortunate death. To save their skin, prosecution party deceived the
appellants and after getting their presence at his place, got them
involved in this false and frivolous case. However, neither any DW
nor any exhibit has been adduced on behalf of appellants.
6. In order to substantiate its case, the prosecution
had examined altogether 12 PWs out of whom PW-1 is Nand Kishore
Yadav, PW-2 is Rameshwar Singh, PW-3 is Ram Niranjan Singh,
PW-4 is Mira Devi, PW-5 is Ram Chandra Paswan, PW-6 is Rudal
Paswan, PW-7 is Chandeshwar Paswan, PW-8 is Eshwar Chandra
Jha, PW-9 is Dr. Krishna Nandan Prasad, PW-10 is Jitendra Jha, and
PW-11 is Ram Dahin Singh and PW-12 is Narsingh Narayan Singh.
Prosecution had also exhibited Ext-1 series, signature of informant as
well as attesting witness over Fard-e-beyan, Ext-2, signature over
seizure list, Ext-3 is substituted photo copy of report of medical board,
Ext-4 is Post-mortem report, Ext-5, formal FIR.
7. While assailing judgment of conviction and
sentence recorded by learned trial court, it has been submitted on
behalf of appellants that the instant case suffers from so many
improbabilities and on account thereof, the death of Pinki Kumari at
the hands of appellants could not be accepted what to talk about the
Patna High Court CR. APP (SJ) No.252 of 2012 dt.25-04-2014 5
dowry death. In this connection, it has been submitted that on account
of confusion arising on the basis of postmortem report, prosecution
was compelled to ask for majority opinion and on account thereof,
medical board was constituted that too had not conclusively opined it
a case of throttling rather may be a case of throttling and there
happens to be much more gap in between which, if properly
considered, dethrone the prosecution case regarding cause of death.
The I.O had visited the house of appellant in their absence and seized
a piece of cloth measuring 2 Feet or more than that, to suggest that the
aforesaid piece of cloth was responsible for strangulation but that
piece of cloth was neither soaked with blood or saliva or substance of
vomiting which in normal phenomena would have visualized.
8. The postmortem report as well as inquest report
did not disclose the symptom of strangulation over the dead body of
deceased such as, having the tongue protruded, froth coming from
nostril, eyes projecting outside as well as violent mark over the body
at least suggesting resistance by the victim during course thereof.
9. Now coming to other aspect, it has been submitted
that prosecution just to save their skin got the police official in their
collusion and on account thereof, got PW-1 examined on the theme of
lifting the dead body of deceased from the house of appellants by the
appellants on the pretext of being a delivery case but the evidence of
Patna High Court CR. APP (SJ) No.252 of 2012 dt.25-04-2014 6
PW-1 happens to be worthless in the background of the fact that he
had already admitted that the place where he had unloaded the dead
body from his jeep happens to be in front of Kumbha outpost. He had
further disclosed that seeing the dead body, he had raised alarm and
he dumped the dead body at 5:00 a.m. Therefore, having commotion
at the place where dead body was dumped by PW-1 even not
attracting presence of police official as well as carrying dead body on
another vehicle to the place of informant, appears to be improbable.
Had there been a dead body, the police officials of Kumbha post
would not have allowed the appellants to step with dead body on
another vehicle.
10. From the evidence laid during trial, it is evident
that even having absence of Arun Kumar Singh at an initial stage the
witnesses had introduced their presence even at the time when dead
body was being dumped at the house of informant having an
explanation that Arun Kumar managed to succeed in his escape while
both the appellants were apprehended and on account thereof, Arun
Kumar Singh got acquitted by the learned lower court. The learned
lower court should have considered the evidence against the appellant
also in same sequence being unreliable.
11. It has further been submitted that had the
appellants been responsible for causing death of the deceased at their
Patna High Court CR. APP (SJ) No.252 of 2012 dt.25-04-2014 7
place, there was no justification for carrying the dead body, taking the
risk to the house of informant and got themselves apprehended rather
they would have opted for safe route by cremating the dead body at
their place without any hindrance. Therefore, the story of carrying the
dead body from the place of appellants to the place of informant in a
way as suggested by them appears to be unbelievable. Aforesaid fact
is further found rodent as none of the witnesses had deposed that they
have seen the vehicle, its registration number, driver, manner of
departure of vehicle as well as absence of note during objective
finding of Investigating Officer relating to P.O. tracing mark of tyre of
the vehicle.
12. Now coming to the propriety of the Section
whereunder they have been convicted and sentenced, it has been
submitted on behalf of appellants that major ingredients for attracting
Section 304B of the IPC was found missing. That means to say
neither the evidence of demand of dowry was there nor soon before
her death, the deceased was subjected to torture for such purpose.
Contrary to it, It has been submitted that from the evidence of PW-4,
the mother, it is evident that demand, whatsoever made, was for the
purpose of carrying business which does not come within the purview
of Section-2 of the Dowry Prohibition Act whereunder the dowry is
defined as " any demand so made in connection with or relating to
Patna High Court CR. APP (SJ) No.252 of 2012 dt.25-04-2014 8
marriage." Therefore, the judgment of conviction and sentence is not
at all found to be maintainable.
13. On the other hand, learned APP while supporting
the finding recorded by the learned trial court has submitted that
marriage of deceased with Bikrant in the year 1996 has not been
challenged and in likewise manner happens to be the date of death
which comes within seven years of marriage. As per evidence of
Doctor, the cause for death was due to strangulation, that means to
say, otherwise than normal circumstance. Now coming to demand of
dowry as well as deceased being subjected to cruelty soon before her
death with regard to demand of dowry, it has been submitted that the
prosecution witnesses right from Fard-e-beyan have categorically
stated that at initial stage after marriage, the demand was in form of
motorcycle and for that deceased was subjected to torture. When the
motorcycle was provided, she was again put to torture with regard to
demand of cash 10-05 thousand which was frequently made and for
procurement thereof, she was subjected to torture.
14. Learned APP further submitted that defence had
not dared to cross-examine the witnesses on that very aspect and so it
could be inferred that the aforesaid demand was in lieu to dowry and
for that the deceased was subjected to torture prior to her death.
Therefore, the finding recorded by the learned trial court on that very
Patna High Court CR. APP (SJ) No.252 of 2012 dt.25-04-2014 9
score happens to be inconsonance with the material available on the
record.
15. It has further been submitted that the evidence of
PW-4 to the effect that demand of 15-20 thousand was being made for
doing business happens to be in casual way in the background of the
fact that it has been made by a rustic woman who had got no idea
relating to particular term so needed for attracting ingredients of
particular Section. However, if the evidence of PW-4 is read in its
totality, it supports the ingredients of Section 304B of the IPC.
16. After going through Section 304B of the IPC in
consonance with the consistent judicial pronouncements the following
ingredients have been identified for the purpose of constituting an
offence punishable under Section-304B of the IPC:-
A. That the death of the woman was caused by any
burns or bodily injury or in some circumstances
which were not normal.
B. Death occurred within seven years of marriage.
C. That the victim was subject to cruelty or
harassment by her husband or any relative of her
husband.
D. Such cruelty or harassment should be for or in
connection with demand of dowry and
E. It should be established that such cruelty and
harassment was made soon before her death.
Patna High Court CR. APP (SJ) No.252 of 2012 dt.25-04-2014 10
17. Now coming to the case in hand, the date of
marriage in the year 1996 is not at all denied. In likewise manner the
date of death either being 18.02.1999 or 17/18.02.1999 is also beyond
controversy. From the postmortem report, Ext-4 it is evident that the
doctor had opined the cause of death was due to asphyxia as a result
of throttling which is also found to be the opinion of medical board,
Ext-3.
18. PW-9, Dr. K. N. Prasad who had exhibited both
the documents was cross-examined but his evidence was not at all
challenged although in para-8, he had stated that strangulation may be
suicidal, homicidal and accidental. From para-9, it is evident that he
had admitted that he had not mentioned whether it happened to be
accidental, homicidal or suicidal but the defence could not dare to
cross-examine this witness on that very score furthermore because of
the fact that presence of ligature and knot in particular manner clarify
whether it happens to be accidental, homicidal or suicidal. "Modi"
had categorically distinguished on account of which an expert could
identify whether it happens to be accidental, homicidal or suicidal.
PW 9, who was one of the members of board that issued Ext-3 and so
if the defence had any sort or confusion, would have cross-examined
to the effect that presence of ligature at the neck of deceased was
suicidal or at least should have suggested like so.
Patna High Court CR. APP (SJ) No.252 of 2012 dt.25-04-2014 11
19. Now coming to the score of another three
important ingredients, from perusal of the evidence of PWs, it is
apparent that none has been cross-examined on that very aspect. PW-2
had simply stated with regard to presence of dead body in front of
house of PW-3, the informant along with Bikrant Kumar and Mina
Devi who, on query had disclosed that she committed suicide in their
absence. Rightly, he had not spoken over demand, torture as was
outsider.
20. PW-3 is the informant who had stated that Pinki
Kumari @ Bullu Kumari was his daughter who was married on
29.04.1996with Bikrant Kumar son of Arun Kumar Singh. At the time of marriage, he had given dowry in the form of gift. After marriage, his daughter began to reside at her Sasural and occasionally, used to visit to his house. His daughter had begotten a daughter who was aged about 1 and ½ years at the time of occurrence. He had further stated that whenever his daughter came to his house, she used to divulge that her mother-in-law, father-in-law and husband tortured her and were coaxing her to bring motorcycle. Because of the fact that his daughter was constantly tortured for motorcycle therefore, to ward off such situation, he after purchasing second hand Rajdoot motorcycle handed over to his son-in-law. For the time being, the matter was subsided. But at some interval, they again began to Patna High Court CR. APP (SJ) No.252 of 2012 dt.25-04-2014 12 advance their demand. Sometimes, they demanded Rs.10,000/-, sometimes Rs. 5,000/- and for that she (deceased) was again subjected to torture. Because of the fact that he was unable to meet their repeated demand, therefore, he had clearly stated that he is not in a position to honour their demand. All of a sudden, in the morning of 18.02.1999 Bikram and his mother, Mina Devi brought dead body of his daughter over a jeep. His daughter's daughter was also there. He rushed and found Mina Devi having his daughter's daughter in her lap and on query, she disclosed that on account of stomachache, she died. Her dead body was got down from the jeep. On close scrutiny of dead body, he found ligature mark around her neck and on account thereof, they began to scorn the accused over which they tried to flee but were apprehended by the villagers. Police was informed who came, recorded Fard-e-beyan, took control of the accused persons. Inquest report was also prepared. During cross-examination, it is evident that this witness was not at all cross-examined on the question of demand of dowry torture, gifting of Rajdoot motorcycle at an earlier occasion subsequent demand, torture meted out to the deceased for fulfilment of subsequent demand. That means to say, the aforesaid assertion of PW-3 remained unshaken, unchallenged and uncontroverted.
21. PW-4 is the wife of PW-3, as well as mother of deceased. She had stated that deceased was her daughter who was Patna High Court CR. APP (SJ) No.252 of 2012 dt.25-04-2014 13 married with Bikrant Kumar of Village- Gorhari in the year 1996 and at that very time, she had given sumptuous dowry. His daughter had gone to Sasural where, after spending a year, she came. During her stay, she had found sign of assault over her body. She enquired over which deceased disclosed that she has been treated like so for fulfilment of their demand, a motorcycle in lieu of dowry. She had further disclosed that her husband, father-in-law and mother-in-law were actively involved in such nefarious activity. They used to deny her meal. She had begotten a child. Anyhow, after purchasing a second hand motorcycle was handed over and then her son-in-law effected Bidai. After spending a few cordial days, they have again advanced demand of Rs.15-20 thousand directing her to bring the same to facilitate business over which they have shown their inability to pay the same. The accused persons have disclosed that they would commit murder of victim which was resisted by them. All these events were known to her after subsequent arrival of her daughter. Then had stated that on 18.02.1999 while she was at her Naihar, one Ram Dahin Singh came to carry her on account of dead body of her daughter being dumped at her house by the accused persons. She came, seen the dead body having ligature mark around her neck, she also found Mina Devi, Bikrant Kumar and Arun Kumar Singh. On query, Mina had disclosed that as deceased was suffering from Patna High Court CR. APP (SJ) No.252 of 2012 dt.25-04-2014 14 stomachache and was being carried for treatment, she died. She further disclosed that as they have got no manpower, therefore, the dead body has been brought for her funeral. Then thereafter, all of them tried to escape, as such, Bikrant and Mina were apprehended out of them, while Arun Kumar Singh escaped on his vehicle. Police came. Again this witness, as is evident from cross-examination, was not at all cross-examined save and except under para-5 of his cross- examination whereunder she had disclosed that motorcycle was purchased by male members and so she was unable to disclose the actual price and the person from whom, the vehicle was purchased.
22. PW-5 is the co-villager of appellant and as expected he did not support the case of the prosecution. PW-6 is Rudal Paswan, another co-villager who had supported recovery of a piece of polyester Saree measuring 8 Yards, 8 hands affixed with latch of a door. However, he did not support the case of the prosecution on facts on account thereof, was declared hostile and the same happens to be status of PW-7. PW-8 also happens to be co- villager of appellant who had also failed to support the case.
23. PW-10 is formal in nature and the same status happens to be that of PW-11, the FIR attesting witness. PW-12 is Narsingh Narain Singh who had stated that on murmuring, he reached at the house of informant and found the dead body. During cross- Patna High Court CR. APP (SJ) No.252 of 2012 dt.25-04-2014 15 examination, he had stated that police after his arrival took away the dead body.
24. From the statement of both the appellants, it is apparent that all sorts of incriminating circumstances were put to both the appellants which was blatantly, denied by them. So after analyzing the evidence available on record, it is evident that the evidence of PWs- 5, 3 and 4 with regard to demand of dowry as well as subjecting the deceased to torture is found uncontroverted on account of non cross-examination of witnesses on that very score. The disclosure made by PW-4 that Rs. 15-20 thousand was being demanded by the appellant for the purpose of carrying business is also not found tested at the end of accused. The marriage is of the year 1996. After a year the deceased had come to her Naihar and then thereafter, motorcycle was given whereupon Bidai was effected and then revival of demand followed with torture and ultimately presence of dead body on 18th February 1999 could be perceived.
25. After taking into account the requirement inconsonance with concept of reasonable time soon before death as well as conduct of accused as times without number came up for consideration before the Hon'ble Apex Court. In the case of Yashoda v. State of M.P. as reported in AIR 2005 SC 1411, it has been held that determination of the period would depend on the facts and Patna High Court CR. APP (SJ) No.252 of 2012 dt.25-04-2014 16 circumstances of a given case in the following paragraphs:-
16. The words "soon before" found in S. 304-
B, I.P.C. have come up for consideration before this Court in lage number of cases. This Court has consistently held that it is neither possible nor desirable to lay down any straitjacket formula to determine what would constitute "soon before" in the context of S. 304-B, I.P.C. It all depends on the facts and circumstances of the case. Learned counsel for the appellant relied upon a decision of this Court rendered by two learned Judges reported in AIR 1997 SC 1873, Sham Lal v. State of Haryana, and submitted that as in that case, so in the present case, there was no evidence to suggest that after the deceased went to her matrimonial home, she had been subjected to cruelty and harassment before her death. The facts of Sham Lal's case are clearly distinguishable and they have been so distinguished in the case of Kans Raj v. State of Punjab and others (2000) 5 SCC 207, by a Bench of 3 learned Judges of this Court. This Court observed :-
"It is further contended on behalf of the respondents that the statements of the deceased referred to the instances could not be termed to be cruelty or harassment by the husband soon before her death. "Soon before" is a relative term which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any time limit. This expression is pregnant with the idea of proximity test. The term Patna High Court CR. APP (SJ) No.252 of 2012 dt.25-04-2014 17 "soon before" is not synonymous with the term "immediately before" and is opposite of the expression "soon after" as used and understood in S. 114, Illustration (a) of the Evidence Act. These words would imply that the interval should not be too long between the time of making the statement and the death. It contemplates the reasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be "soon before death"
if any other intervening circumstance showing the non-existence of such treatment is not brought on record, before such alleged treatment and the date of death. It does not, however, mean that such time can be stretched to any period. Proximate and live-link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough."
(Emphasis supplied) Patna High Court CR. APP (SJ) No.252 of 2012 dt.25-04-2014 18
17. Noticing the earlier judgment of this Court in Sham Lal case it held that the facts were distinguishable as in that case there was evidence to show that an attempt had been made to patch up between two sides for which a Panchayat was convened in which the matter was settled. The Panchayat was held about 10-15 days before the occurrence. There was nothing on record to show that the deceased was either treated with cruelty or harassed with the demand of dowry during the period between her having been taken to the nupital home and her tragic end.
18. .........
19. Learned counsel also submitted that the prosecution evidence did not rule out natural or accidental death. As we have noticed above, the deceased was a young girl and there is no evidence even to suggest that she was suffering from any ailment. 15 days before her death she had gone to her matrimonial home in good health. Suddenly one day her parents came to know that she had died. Her death was therefore, clearly in circumstances cannot be considered to be normal. If she had really died a natural or accidental death, the appellants were the best persons to disclose the relevant facts which were solely within their knowledge. Indeed when all the conditions of S. 304-B were fulfilled and a presumption arose against the appellants they were required to rebut that presumption in order to Patna High Court CR. APP (SJ) No.252 of 2012 dt.25-04-2014 19 successfully defend themselves. They did not do so. The evidence of D.W. 1 has been rightly discarded by the Courts below. In these circumstances and in the absence of any acceptable evidence whatsoever, to suspect that the death may have been accidental or on account of natural causes, will be speculative. Law does not permit a Court to speculate or conjecture so as to imagine events about which there is absolutely no evidence on record. The manner in which the dead body was disposed of at night has further added to the incriminating circumstances proved against the appellants.
26. In Tummala Venkateswar Rao v. State of Andhra Pradesh reported in 2014 CRI.L.J.1641, the Hon'ble Apex Court considered earlier pronouncement on this score in following way and observed:-
6. This Court in the case of Kailash versus State of Madhya Pradesh (2006) 12 SCC 667 : AIR 2007 SC 107 has observed as under:
"No presumption under Section 113-B of the Evidence Act would be drawn against the accused if it is shown that after the alleged demand, cruelty or harassment the dispute stood resolved and there was no evidence of cruelty or harassment thereafter. Mere lapse of some time by itself would not provide to an accused a defence, if the course of conduct relating to cruelty or harassment in connection with the dowry Patna High Court CR. APP (SJ) No.252 of 2012 dt.25-04-2014 20 demand is shown to have existed earlier in time not too late and not too stale before the date of death of the victim. This is so because the expression used in the relevant provision is "soon before". The expression is a relative term which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any time- limit. The expression is pregnant with the idea of proximity test. It cannot be said that the term "soon before" is synonymous with the term "immediately before". This is because of what is stated in Section 114 Illustration (a) of the Evidence Act. The determination of the period which can come within the term "soon before" is left to be determined by the courts, depending upon the facts and circumstances of each case. Suffice, however, to indicate that the expression "soon before" would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link [see Hira Lal v. State (Govt. of NCT), Delhi]."
7. This Court in the case of Hira Lal versus State (Govt. of NCT),Delhi (2003) 8 SCC 80 has observed as under:
"A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before Patna High Court CR. APP (SJ) No.252 of 2012 dt.25-04-2014 21 her death the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of "death occurring otherwise than in normal circumstances". The expression "soon before" is very relevant where Section 113-B of the Evidence Act and Section 304- B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by the prosecution. "Soon before" is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression "soon before her death" used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression "soon before" is not defined. A reference to the expression "soon before" used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a court may presume that a man who is in the Patna High Court CR. APP (SJ) No.252 of 2012 dt.25-04-2014 22 possession of goods "soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for their possession". The determination of the period which can come within the term "soon before"
is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression "soon before" would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence."
. 8. Section 304-B, IPC, reads as follows:
"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 Patna High Court CR. APP (SJ) No.252 of 2012 dt.25-04-2014 23 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.
9. It is obvious from this provision that the term "soon before her death" has been employed by the Parliament to refer to cruelty or harassment which was meted out in proximity to the death has to be considered as the cause of the death as held supra. The provision does not employ the term "at any time before" nor "immediately before" and must be construed according to its true import.
27. After having careful scrutiny of the evidence available on the record, it is evident that prosecution had succeeded in proving all the ingredients so attracted for constituting an offence punishable under Section 304(B) of the IPC and on account thereof, presumption so prescribed under Section 113 (B) of the Evidence Act will come into play. The aforesaid presumption happens to be subject of rebuttal. For said purpose, again the record has been gone through, it is evident that apart from having failed to cross-examine the witnesses, even during course of their statement under Section 313 of Patna High Court CR. APP (SJ) No.252 of 2012 dt.25-04-2014 24 the Cr.P.C. Appellants could not be able to explain the circumstances, save and except denying the event. They have stated that the deceased had died at the place of informant which they could not magnify along with the fact that as to how they have come up and apprehended at the place of informant by examining DW, or through themselves. A minute observation has also been made to the suggestion given to the witnesses by the appellants while flashing their probable case and is found full of conjuration.
28. It is a settled principle of law that part of the evidence which has not been cross-examined by the accused, then in that event, it will tantamount to admission on the part of the accused.
29. In Gian Chand & others v. State of Haryana reported in 2013(4) PLJR 7 (SC) it has been held:-
11. The effect of not cross-examining a witness on a particular fact/circumstance has been dealt with and explained by this Court in Laxmibai (Dead) Thr. L.Rs. & Anr. v.
Bhagwanthuva (Dead) Thr. L.Rs. & Ors., AIR 2013 SC 1204 observing as under:
"31. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his Patna High Court CR. APP (SJ) No.252 of 2012 dt.25-04-2014 25 credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses."
(Emphasis supplied) (See also: Ravinder Kumar Sharma v. State of Assam & Ors., AIR 1999 SC 3571; Ghasita Sahu v. State of Madhya Pradesh, AIR 2008 SC 1425; and Rohtash Kumar v. State of Haryana, JT 2013 (8) SC 181)
30. Thus, instant appeal sans merit and is accordingly, dismissed.
31. Appellant, Mina Devi is on bail. Her bail bond is cancelled with a directed to surrender before the learned trial court to serve out the remaining sentences while Bikrant Kumar is in custody, he will remain there till saturation of period of sentence. Patna High Court 25th of April 2014 (Aditya Kumar Trivedi, J) Perwez/AFR |__| U |__| T