Jharkhand High Court
Suresh Prasad Sao vs State Of Bihar (Now Jharkhand) on 14 May, 2003
Equivalent citations: II(2003)DMC662
Author: Vishnudeo Narayan
Bench: Vishnudeo Narayan, Lakshman Uraon
JUDGMENT Vishnudeo Narayan, J.
1. This appeal has been preferred by the appellant named above against the impugned judgment and order dated 23.7.1997 passed in S.T. No. 345 of 1989 by Shri Dhruv Narain Upadhyay, 2nd Additional Sessions Judge, Giridih whereby and whereunder the appellant was found guilty for the offence punishable Under Section 304B of the Indian Penal Code and he was convicted and sentenced to undergo RI for life. However, co-accused Karu Sao was found not guilty and acquitted of the said charge.
2. The prosecution case has arisen on the basis of the Fardbeyan (Ext. 5) of P.W, 1. Narain Sah, the informant and father of Kanti Devi, the deceased of this case recorded by AST Rama Shankar Singh of Hirodih on 30.12.1987 at 15.30 hours regarding the occurrence which is said to have taken place between 26th December, 1987 and 30th December, 1987 at village Mukunriih in which the dowry death of Kanti Devi aforesaid was committed. The case was instituted by drawing of the formal FIR (Ext. 4) on that very day at 16.00 hours which was received in the Court empowered to take cognizance on the following day
3. The prosecution case, in brief, is that Kanti Devi, the deceased of this case is the lawfully wedded wife of appellant Suresh Prasad Sao, their marriage having been performed in the month of April, 1987 in which Rs. 15,000/- in cash and utensils worth Rs. 1,000/- were provided to the appellant as dowry and after the marriage she had gone to her matrimonial home where she was leading her conjugal life. It is alleged that the deceased had returned to her parents' house in village Dhuba about five months ago and since then she was living there and she used to tell that the appellant and his father used to make a demand of Rs. 10,000/- for prosecuting the studies of B.Sc. of the appellant and for that they used to vex and harass her by diverse means. It is alleged that the informant expressed his inability to the appellant and his father in respect of providing them Rs. 10,000/-. The prosecution case further is that the deceased went to her matrimonial home one month prior to the occurrence but she was vexed and harassed causing physical and mental torture by diverse means by them and a letter was also sent by them in respect of the demand of Rs. 10,000/-. It is also alleged that the appellant had come to the house of the informant a week prior to the occurreence where he had reiterated the demand of the said amount as dowry to P.W. 3,Sita Devi, the wife of the informant, in presence of P.W. 4, Amina Khatoon wife of Lai Mohammad and the wife of P.W. 8, Yamuna Sah failing which she will lose her daughter. It is also alleged that KW. 3, Si ta Devi also expressed her inability in fulfilling the said demand and at this the appellant felt annoyed and returned from there. The prosecution case further is that the informant received an information that his daughter Kanti Devi is missing from her matrimonial home for the last four days and he went to village Hirodih of the appellant where he learnt that the dead body of a woman has been recovered from the well of Parmeshwar Modi and he went there and identified the said dead body to be of his daughter Kanli Devi aforesaid. Lastly it has been alleged that Kanti Devi has been done to death due to the non-fulfilment of the demand of Rs. 10,000/- as dowry made by the appellant.
4. The appellant has pleaded not guilty to the charge levelled against him and he claims himself to be innocent and to have committed no offence and he has been falsely implicated in this case on mere suspicion. It has further been contended that never a demand of Rs. 10,000/- was made from the deceased or her parents and the deceased was never treated with cruelty in her matrimonial home for the fulfilment of the alleged demand.
5. The prosecution has in all examined nine witnesses to substantiate the charge levelled against the appellant. PW 1, Narain Sao, the informant and P.W. 3, Sita Devi are the father and mother respectively of the deceased. P.W. 4, Amina Khatoon and P.W. 8, Yamuna Sao are the neighbours of the informant, resident of village Dhuba. It is relevant to mention here that the evidence of P.W. 8, Yamuna Sao is fit to be expunged in this case in view of the fact that he did not turn up for his cross-examination P.W. 5, Bahadur Sao and P.W. 6, Rameshwar Sao both resident of village Hirodih are the witnesses of the Inquest Report and Exts. 3 and 3/1 are their signatures thereon. P.W. 7, Bahadur Sao also a resident of village Hirodih is a hearsay witness. P.W. 9 is a formal witness who has proved the Fardbeyan (Ext. 5) and the formal FIR Ext. 4 P.W. 2. Dr. V.P. Sinha has conducted the post-examination on the deadbody of the deceased and the post-mortem report per his pen is Ext. 2 in this case. The IO has not taken oath in this case for the reasons best known to the prosecution. Three witnesses were examined on behalf of the defence and they have proved two letters (Exts. A and A/1) purported to have been written by the informant to acquitted accused Karu Sao and this appellant respectively as well as the affidavit (Ext. B) sworn by Ranjan Prasd Sao (since dead), the son of the informant.
6. The learned Court below has placed reliance upon the evidence of PW I read with P.Ws. 3 and 4 coupled with the evidence of the medical witness and that the death of the deceased occurring otherwise than under normal circumstances in the very year of her marriage as a result of harassment for the fulfilment of demand of dowry and found the appellant guilty for the offence Under Section 304B of the Indian Penal Code and convicted and sentenced him as stated above.
7. Assailing the impugned judgment it has been submitted by the learned Counsel for the appellant that the learned Court below failed to consider the evidence on the record meticulously and in proper perspective and has committed a manifest error in coming to the finding of the guilt of the appellant. It has also been submitted that there is no iota of evidence on the record to prove that the deceased was treated with cruelty in her matrimonial home by this appellant for the fulfilment of demand of dowry immediately soon before her death. It has further been contended that there is no legal evidence at all on the record that this appellant has ever demanded any dowry either from the deceased or from her parents through her and even for argument sake the demand of Rs. 10,000/- for prosecuting the study of the appellant for B.Sc. as alleged by the prosecution does not at all fall within ambit of dowry as defined in Section 2 of the Dowry Prohibition Act, 1961. Elucidating further it has been submitted that the medical witness conducting the post-mortem examination on the dead body of the deceased has not found any internal or external injury thereon and furthermore they could not opine the cause of the death of the deceased and in this view of the matter coupled with the absence of any ocular witness of the alleged occurrence there cannot be any presumption Under Section 113B against this appellant and even the circumstances emanating as per evidence on the record do not form a complete chain to lead to the hypothesis of the guilt of the appellant unmistakably and unerringly. Relying upon the ratio of the case of Sunil Bajaj v. State of M.P., VII (2001) SLT 220=IV (2001) CCR 131 (SC)=2001 (7) Supreme 456 it has been submitted that the evidence on the record read with the averments made in the Fardbeyan do not at all make out a case against the appellant Under Section 304B of the Indian Penal Code. It has also been contended that the appellant stands seriously prejudiced in this case due to the non-examination of the IO as he was debarred of the opportunity of eliciting facts in his cross-examination showing his innocence and also stands debarred of contradicting the statement Under Section 161 of the Cr.P.C. of P.Ws. 3, 4 and 1 vis-a-vis their evidence on oath. Lastly it has been contended that several witnesses before whom the alleged demand of Rs. 10,000/- was made for prosecuting studies have deliberately been withheld in this case along with the letter purported to have been sent by the deceased to the informant for the reasons best known to the prosecution which had caused serious prejudice to the appellant and truth could not be unfolded in this case and furthermore there is material contradictions and inconsistencies inherent in the evidence of P.Ws. 1,3 and 4 which casts a cloud of suspicion to the very credibility of the warp and woof of the prosecution case and thus the impugned judgment is unsustainable.
8. Refuting the contention advanced on behalf of the appellant it has been submitted by the learned APP that the death of the deceased is otherwise than under normal circumstances which has taken place within the very first year of the marriage of the deceased and her dead-body was recovered from the well situated in the village of the appellant only 50 yards away from his house and there is sufficient evidence on the record that the appellant had demanded Rs. 10,000/- as dowry and when it was not fulfilled P.Ws. 1 and 3 were intimidated that they will not see their daughter alive and furthermore the appellant on the recovery of the dead body from the well aforesaid begged for apology from the informant in the matter after catching hold his feet which amounts to an extra-judicial confession made by the appellant and the learned Court below considering the entire evidence on the record has rightly come to the finding of the guilt of the appellant and, therefore, there is no illegality at all in the impugned judgment.
9. It will admit of no doubt that Kanti Devi the deceased of this case, is the lawfully wedded wife of the appellant, their marriage having been solemnized in the month of April, 1987 and the said marriage was preformed in the Karua form which means that the deceased had gone to the house of the appellant prior to her marriage and in the house of the appellant itself her marriage was solemnized. For this evidence of P.W. 1 appearing in para 10 of his testimony is referred to. The deceased has lived in her matrimonial home for 2-3 months after the marriage and, thereafter, she returned to her parents1 house where she was living. According to the prosecution case the deceased used to tell to this informant and his wife during her stay in her parents' house that the appellant and his father Karu Sao (who stands acquitted in this case) used to make demand of Rs. 10,000/- for prosecuting the B.Sc. study of the appellant and for that they used to vex and harass her. The prosecution case further is that the informant expressed their inability before the appellant and his father regarding providing them with Rs. 10,000/-.
There is further averment in the Fardbeyan of the informant that the deceased had returned to her matrimonial home one month prior to the occurrence from where she had written a letter to the informant stating therein regarding the demand of Rs. 10,000/-. The prosecution case further is that the appellant had come to the house of the informant a week prior to the occurrence and had reiterated for the demand of Rs. 10,000/- and also intimidated that if the amount is not fulfilled they w ill lose their daughter. There is no denying the fact that the dead body of Kanti Devi was found in the well of Parmeshwar Sao situated in village Mukundih from where it was taken out in the presence of the police as well as the informant and others. PW 2, Dr. V.P. Singh has deposed that the postmortem examination on the dead body of the deceased was conducted by a Medical Board consisting of himself, Dr. R.N. Prasad and Dr. K.N. Mishra and he has deposed to have found the following ante-mortem injuries in course of postmortem examination :
(1) Rigor mortis present in all limbs-blood stained for the discharge from nostril. No appearance of external injury of any kind was detected. Swelling on front of neck along the side of wind pipe, both sides was due to physiological guitore. There was no swelling of either lips, nails were bluish.
(2) On dissection-Trachea red and congested. Lungs deeply congested. Heart contained blood right side and left side was empty. Stomach contained undigested food stuffs, full diet like rice and pulses. Macau membrane of stomach at greater curvature and cardiac crane was congested. Urinary bladder was empty. Uterus normal size. Other abdominal organs congested.
The medical witness has further deposed that no sign of drowning was found in course of post-mortem examination and in the opinion of the Medical Board exact cause of death could not be ascertained and it may be a case of suspected poisoning. The medical witness has further deposed that the viscera of the deceased has been kept for chemical examination and time elapsed since death is 48 hours from the post-mortem examination. It is relevant to mention here that the prosecution is conspicuously silent as to whether the viscera of the deceased was sent for chemical examination or not. The report of the Forensic Science Laboratory is also not on the record regarding the examination of the viscera of the deceased. It is equally pertinent to mention here that the deceased was missing from her house for the last four days of the recovery of her dead body from the well as per the prosecution case. Here the time elapsed since death of the deceased from the post-mortem report has its relevancy which shows that she was definitely alive for the first three days of her missing from her matrimonial home. It is also relevant to mention here that the Medical Board has not found any external or internal injury on the dead body of the deceased. The medical witness has further found undigested foodstuff i.e. rice and pulse in the stomach of the deceased. In his cross-examination the medical witness has deposed that it takes 5-6 hours for digestion of the foodstuffs. There is also no specific finding of the Medical Board regarding cause of death of the deceased due to poisoning. Any assault on the deceased in her matrimonial home is totally ruled out in view of the finding of the Medical Board conducting the post-mortem examination on the dead body of the deceased as deposed by P. W. 2 in the absence of any external or internal injuries appearing on the dead body of the deceased. Therefore, the death of the deceased due to asphyxia as a result of drowning or strangulation or throttling and the death of the deceased by suicide or accident is totally ruled out in this case. But still the fact remains that the death of the deceased is an unnatural death surrounded by suspicious circumstances which has occurred otherwise than under normal circumstances within seven years of her marriage while she was living with the appellant in her matrimonial home and her dead body having been recovered from the well which is hardly 50 yards from the house of the appellant. Therefore, the presumption as mandated Under Section 113B of the Evidence Act has to be drawn in this case regarding the dowry death of the deceased provided it is proved by legal evidence on the record that the deceased was subjected by the appellant to cruelty or harassment soon before her death for or in connection with any demand for dowry. To constitute an offence Under Section 304B the following essentials must be satisfied :
(i) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances;
(ii) Such death must have occurred within seven years of her marriage;
(iii) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband;
(iv) Such cruelty or harassment must be for or in connection with demand of dowry.
It is only when the aforementioned ingredients are established by acceptable evidence such death shall be called dowry death and the husband or his relatives shall be deemed to have caused her death. Section 2 of the Dowry Prohibition Act defines "Dowry" which is quoted below :
2. Definition of dowry'.- In this Act, "dowry" means any property or valuable . security given or agreed to be given either directly or indirectly-
(a) by one party to a marriage to the other party to the marriage, or
(b) by the parents of cither party to a marriage or by any other person, to either party to the marriage or to any other person, at or before [or any time after the marriage] [in connection with the marriage of the said parties, but does not include] dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.
Explanation I..... * * * * Explanation II-The expression "Valuable security" has the same meaning as in Section 30 of the Indian" Penal Code (45 of 1860).
P.W. 1 Narain Sao, the father of the deceased has deposed in para 1 of his testimony that after the marriage, the deceased was living in her matrimonial home leading conjugal life with the deceased and in course of her stay a demand of Rs. 10,000/- made by the appellant and the acquitted co-accused for prosecuting the B.Sc. studies of this appellant and she was vexed, harassed and subjected to cruelty for the fulfilment of the said demand. He has further deposed that the deceased came to his house after two or three months of her marriage where she stayed for a month and the appellant had come to her house for the bidai of the deceased where a demand of Rs. 10,000/- was made besides ornaments and clothes. It is relevant to mention here that there is no averment in the fardbeyan of PW 1, the informant regarding any demand of ornament and clothes. He has also deposed that due to his inability in fulfilling the said demand the appellant felt annoyed and intimidated him that "ghee is never taken out by straight finger". PW 1 does not say that the appellant has intimidated him that he will lose his daughter if the said demand is not fulfilled as averred in the fardbeyan. In para 11 of his cross-examination PW 1 has deposed that the deceased lived in her matrimonial home for two to three months after the marriage and, therefore, she came to her parents' house and one month, thereafter, she again went to her matrimonial home where she lived for two months and, thereafter, this incident has taken place. He has specifically deposed that the deceased had come to her parents' house after her marriage only once. His evidence is further to the effect that no person from his house had gone to her matrimonial home during that period except him where the deceased had told him about the demand of Rs. 10,000/- and he brought the deceased to his house and one month thereafter, she was sent back to her matrimonial home. P.W. 1, the informant, has specifically deposed that the deceased knew only writing her name and not more. It appears from the evidence of P.W. 1 appearing in para 11 that the deceased had not stated regarding any cruelty or harassment perpetrated on her for the said demand of Rs. 10,000/- in her matrimonial home when he had gone to take her back to her parents' house two or three months after her marriage. It, therefore, appears from the evidence of P.W. 1 that the demand of Rs. 10,000/- was made for prosecuting the B.Sc. studies of the appellant but the deceased has not told him regarding subjecting her with cruelty by the appellant for the fulfilment of the said demand. PW 1, the informant is also conspicuously silent regarding the deceased having been subjected with cruelty immediately soon before her death for the fulfilment of said demand of Rs. 10,000/- for the prosecution of the B.Sc. studies of the appellant. P.W. 3, Sita Devi had never gone to the matrimonial home of the deceased. Her evidence is to the effect that after the marriage the deceased had her frequent visits to her parents' house. This part of the evidence of P.W. 3, Sita Devi, the mother of the deceased appears to be in conflict with the evidence of P.W. 1 in respect thereof. She has further deposed that the deceased used to tell her that the appellant and acquitted co-accused Karu Sao always quarrel with her and the appellant asks from her Rs. 10,000/- to bring from her father for prosecution of his studies. She has further deposed that, thereafter, the deceased returned to her matrimonial home. Her evidence is further to the effect that, thereafter, the appellant came to her house where he reiterated his demand of Rs. 10,000/- and he also quarreled with her and intimidated her that she shall not be able to see the deceased and, thereafter, the appellant returned from there. PW 3 once again contradicts the testimony of P.W. 1, her husband in respect thereof. PW 4, Amina Khatoon, wife of Lai Mohammad is the neighbour of the informant. She has deposed that she is on visiting terms with the informant. Her evidence is to the effect that the appellant had come to the house of the informant and he was making demand of Rs. 10,000/- and there had been an altercation between the appellant on the one hand and P.Ws. 1 and 3 on the other hand in respect thereof and at this the appellant had retorted that they will lose their daughter and, thereafter, the appellant returned to his house. In para 10 of her cross-examination she has categorically deposed that never a demand of any kind whatsoever was made by the appellant in her presence. It is equally relevant to mention here that P.W. 3, Sita Devi and P.W. 4, Amina Khatoon are conspicuously silent in their evidence regarding the fact of the deceased having been subjected to cruelty or harassment by the appellant or his relatives for the fulfilment of said demand of Rs. 10,000/- for prosecuting the B.Sc. studies of the appellant. The testimony of P.W. 5 has also its relevancy regarding the matter in controversy. He is a resident of Hirodih, the village of the appellant. He figures as a witness on the Inquest Report. He has proved two letters written by P.W. 1, the informant. In para 4 of his cross-examination he has deposed in the most unequivocal terms that there was cordial conjugal relationship between the deceased and the appellant as well as good relationship between the deceased and her in-laws. Ext. A series does not at all give an inkling of the fact regarding any aberrations in the conjugal life of the deceased with the appellant. From the evidence referred to above it becomes crystal clear that the demand of Rs. 10,000/- though specifically denied by the appellant in his statement Under Section 313 of the Cr. P.C, even if accepted to be true, is for prosecuting B.Sc,. studies of the appellant. This demand of Rs. 10,000/- prosecuting the B.Sc. studies of the appellant after the marriage cannot be said to have any connection or co-relation with the marriage of the appellant with the deceased and this demand does not fall within the ambit of the definition of dowry as defined Under Section 2 of the Dowry Prohibition Act, 1961.
The said demand of Rs. 10,000/- for prosecuting the B.Sc. studies of the appellant has definitely no nexus with the marriage of the deceased with the appellant and the said demand has no co-relation with their marriage as well as the said demand is also not a consideration for the marriage of the deceased with the appellant. Therefore, in our considered view such a demand cannot be connected with dowry as defined Under Section 2 of the Dowry Prohibition Act. And last but not the least, to connect the said demand with dowry as per definition Under Section 2 of the said Act would be stretching the definition of dowry beyond all proportion. The demand of Rs. 10,000/- for prosecuting the B.Sc. studies of the appellant is only with a view that the appellant should become able to advance in his life after obtaining the B.Sc. degree for a happy and prosperous conjugal life and the said demand can in no stretch of imagination be termed as dowry. The finding of the learned Court below treating the said demand as dowry is untenable and the learned Court below was absolutely unjustified in coming to the finding of the guilt of the appellant Under Section 304B of the Indian Penal Code on that score. Furthermore, there is also no iota of legal evidence on the record to come to the finding of the fact that the deceased was also subjected to cruelty and harassment for the fulfilment of the said demand which in view of our finding above does not fall within the ambit of dowry. Therefore, there is no material on the record to prove the fact that soon before her death the deceased was subjected to cruelty or harassment by the appellant or by his relatives and furthermore that the said cruelty or harassment was in connection with the demand of dowry. Therefore, the Trial Court did not properly, meticulously and objectively consider the evidence on the record in arriving at the finding of the guilt of the appellant and has committed a manifest error in coming to the finding of the guilt of the appellant. And last but not the least, the fardbeyan of the informant is surrounded by suspicious circumstances in this case and embellishment therein cannot be ruled out as a result of deliberation and after-thought and the said fardbeyan cannot be treated as the earliest statement being the basis of this case. For this the evidence of P.W. 5 appearing in paras 4 and 17 is referred to. It appears from Ext. 5, the fardbeyan of the informant, that it was recorded at the well of Parmeshwar Modi in village Mukundih where the dead body was taken out from the well. P.W. 1 in para 4 of his testimony has deposed that he has got his fardbeyan recorded at the police station which was read over and explained to him and finding it correct he has put his signature thereon. In Para 17 of his evidence he has deposed that at the police station he has given in writing the details about the occurrence which was signed by him. In view of the evidence of P.W 1 his earliest statement was made at the police station regarding the occurrence in question. The said statement has not been brought on the record and has been deliberately suppressed in this case for the reasons best known to the prosecution. Therefore, the fardbeyan (Ext. 5) being the subsequent statement of the informant cannot form the basis of the prosecution of the appellant in view of the provision Under Section 162 of the Cr.P.C. The IO has not taken oath in this case for the reasons best known to the prosecution and in the facts and circumstances of this case great prejudice has definitely been caused to the appellant as he stands debarred of eliciting facts showing his innocence in his cross-examination. The learned Court below has relied upon the evidence of PW 1 which is to the effect that the appellant caught his feet and begged apology and he has treated the said statement as extra-judicial confession of the appellant for coming to the finding of the guilt of the appellant. The learned Court below has also gravely erred in respect thereof. It appears from the evidence of P.W. 1 that the appellant has begged for apology regarding the incident prior to the recording of the fardbeyan of the informant either at the police station or at the well of Parmeshwar Modi at village Mukundih. Any averment to that effect in the said fardbeyan (Ext. 5) is conspicuously missing. Therefore, the evidence appearing in para 15 of the testimony of the informant regarding the apology of the appellant which was treated as extra-judicial confession of the appellant forming the basis of the conviction of the appellant is nothing but an embellishment purposely introduced in course of evidence as a result of cool consideration and delibera tion. It is equally pertinent to mention here that the letter purported to have been sent by the deceased to the informant regarding the demand in question has also not been brought on the record by the prosecution and as such an adverse inference has to be drawn against the authenticity of the prosecution case. It is, therefore, crystal clear from the evidence on record that there is total absence of any legal evidence in this case that soon before her death, the deceased was subjected to cruelty or harassment by the appellant or by his relatives for or in connection with demand of dowry. Therefore, the unnatural death of the deceased in the facts and circumstances of this case cannot be said to be a dowry death. -The learned Court below did not properly and meticulously consider the evidence on the record in proper perspective and has committed a manifest error in corning to the finding of the guilt of the appellant. Therefore, the impugned judgment is unsustainable.
10. Considering all the pros and cons of the matter as well as the evidence on the record it appears that the impugned judgment suffers with manifest illegality which requires an interference therein. There is merit in the appeal and it succeeds. The appeal is hereby allowed. The impugned judgment of the learned Court below is hereby set aside. The appellant is not found guilty and he is, accordingly, acquitted. Let the appellant be set free forthwith, if not wanted in any other case.
Lakshman Uraon, J.
11. I agree.