Patna High Court
Chanardhan Yadav & Ors vs State Of Bihar on 18 July, 2013
Author: Hemant Kumar Srivastava
Bench: Hemant Kumar Srivastava
1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.20 of 1995
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(Against the judgment of conviction dated 25-02-1995 and order of sentence dated 28-02-1995 passed by learned Vth Additional Sessions Judge, Patna in Sessions Trial No. 789 of 1993/07 of 1993)
1.Chanardhan Yadav,
2. Pramdhan Yadav Both sons of Ram Dehin Yadav,
3. Raj Rani Devi, W/o Ramdahin Yadav,
4. Ram Dahin Yadav, S/o Late Sukhari Yadav, All residents of village-Pakari (Jaypura Bigha), P.S. Mashaurhi, District-Patna.
.... .... Appellants.
Versus The State of Bihar .... .... Respondent.
================================================= Appearance :
For the informant : Mr. Suresh Mishra, Advocate.
Mr. Manu Shankar Mishra, Advocate For the State: Abha Singh, A.P.P. Dated/ the 18th day of July, 2013.
=========================================================== CORAM: HON'BLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA C.A.V. JUDGMENT Hemant Kumar 1. This Criminal Appeal has been preferred against the Srivastava,J.
judgment of conviction dated 25-02-1995 and order of sentence dated 28-02-1995 passed by learned Vth Additional Sessions Judge, Patna in Sessions Trial No. 789 of 1993/07 of 1993 by which and whereunder, all the above-named appellants have 2 been convicted for the offence punishable under Sections- 498A/34, 304(B)/34 of the Indian Penal Code and Section-4 of Dowry Prohibition Act and accordingly, they were sentenced to undergo rigorous imprisonment for 10 years for commission of the offence punishable under Section-304(B)/34 of the Indian Penal Code, to undergo rigorous imprisonment for one year for commission of the offence punishable under Section-498A/34 of the Indian Penal Code, to undergo rigorous imprisonment for one year for commission of the offence punishable under Section-4 of Dowry Prohibition Act.
2. I may notice the fact and circumstances of the case on the basis of materials available on the record.
3. P.W. 1 Mehi Lal gave a written report to officer-in-
charge of Masaurhi Police Station on 28-10-1992 to this effect that the marriage of his daughter, namely, Usha Devi was solemnized in the year, 1986 with the appellant No. 1, namely, Chanardhan Yadav but after some days of the marriage, appellants started demanding more money in dowry and also started torturing his daughter and whenever, he or his son went to the house of appellants, they were not allowed to meet his daughter and the appellants used to demand Rs 15,000/- in dowry. He further stated in his written report that he could not 3 meet the aforesaid demand due to his poverty though he assured the appellants to fulfill the aforesaid demand after sometime and on 26-10-1992, Rajeshwar Prasad of village- Jagpura informed him that on 25-10-1992, in between 10-11 hours, he had seen the appellants Ramdahin Yadav, Chanardhan Yadav and Paramdhan Yadav carrying the dead body of Usha Devi on cot towards South-West of Lal Bigha and they put her on the railway line and she was cut by train coming by Gaya side. After getting the aforesaid information, he rushed to village-Jagpura Bigha and made inquiry from appellants, Ramdahin Yadav and Chanardhan Yadav but they told that his daughter died due to illness. He also inquired from them as to why they had not given any information to him before cremation of dead body of his daughter but the appellants became angry and after that, he inquired from the villagers and came to know that since last 5 to 6 days, appellants were mounting pressure upon his daughter to fetch Rs 15,000/- from her natal place and the appellants used to assault her and also stopped providing her meal. He further stated in his written report that he along with Rajeshwar Prasad, Ram Babu Yadav and Suryadeo Yadav went near the railway line where, he found blood in huge quantity on the railway track. He also came to know that the 4 dead body of his daughter was cremated at Gulariya Bigha in Dardha river and, thereafter, he went to Gulariya Bigha, where he found sign of burning of dead body.
4. On the basis of aforesaid written report, Masaurhi P.S. Case No. 263 of 1992 under Sections-498A, 304(B), 201/34 of the Indian Penal Code was registered and, accordingly, formal FIR for the above-said offences against the appellants was drawn up. After investigation, police submitted charge sheet for the offences punishable under Sections-498A. 304(B), 201/34 of the Indian Penal Code and Section-3/4 of Dowry Prohibition Act and the learned Additional Chief Judicial Magistrate, Patna took cognizance of the above-said offences and committed the case to the court of sessions, in usual way.
5. Appellants stood trial and they were charged for the offences punishable under Sections-498A/34, 304(B)/34 and 201/34 of the Indian Penal Code as well as Section-4 of Dowry Prohibition Act. Appellants denied the charges and claimed to be tried.
6. In course of trial, prosecution examined, altogether, 7 witnesses and also got exhibited signature of Suryadeo Prasad as Ext-1, postcard as Ext-2, signature of Ajaydeo as Ext-1/1, written report as Ext 3, seizure list as Ext-4, signature of 5 Chandesh Prasad as Ext. ½, signature of Rambabu Rai as Ext. 1/3, signature of Rajeshwar Prasad as Ext. ¼, statement with signature as Ext. 5, paragraphs- 1 to 112 of case diary as Ext. 6 formal FIR as Ext. 7, Protest petition with signature as Ext. 8 and signature on seizure list as Ext. 4/1. The statements of appellants were recorded under Section-313 of the Cr.P.C. in which, they reiterated their innocence and specifically, stated that the deceased was an issueless lady and she was very fed up with her life. The appellant, Raj Rani Devi specifically, stated that the deceased was issueless and on account of aforesaid frustration, she committed suicide by throwing herself before a running train and after that, the remains of her body were collected by them and her cremation was done.
7. The defence also examined one witness who stated that the deceased was an illiterate lady and her marriage had taken place 12 years ago and she had never made any complaint, in respect of her torturing as well as demand of dowry and furthermore, D.W. 1 stated that she was very depressed as she was an issueless lady and on account of aforesaid frustration, she committed suicide by throwing herself before a train.
8. The learned court below, having heard the parties 6 and having perused the materials available on the record, came to the conclusion that the deceased committed suicide by throwing herself before a running train and she was not murdered by the appellants but learned trial court came to the conclusion that appellants used to torture her on account of non-fulfillment of illegal dowry demand and prosecution succeeded to prove all the ingredients of Sections-498A & 304(B) of the Indian Penal Code as well as Section-4 of Dowry Prohibition Act.
9. Learned counsel appearing for the appellants challenged the impugned judgment of conviction and sentence order arguing that the impugned judgment passed by learned trial court is erroneous and is based on surmises and conjectures. He further submitted that the prosecution could not succeed to prove all the ingredients of Section-304(B) of the Indian Penal Code but in spite of that, learned trial court convicted the appellants for the above-said offences. Continuing his submission, learned counsel appearing for the appellants submits that prosecution could not succeed to prove this fact that the deceased was subjected to cruelty in connection with her marriage, soon before her death and one of the important ingredients of Section-304(B) of the Indian Penal 7 Code is lacking in this case. In support of his contention, he referred a decision reported in 2005(2) PLJR 422 (Chandrama Singh & Ors. Vs The State of Bihar) in which, it has been held by a Bench of this court that "in order to attract the provision of Section-304(B) of the Indian Penal Code, the cruelty or harassment as defined u/S 498(A) of the Indian Penal Code must be meted out to the women in connection with dowry demand just before her death and mere casual demand of dowry un-accompanied by any mental or physical torture does not fall within the essential ingredients of dowry death and in absence of proof of cruelty or harassment to the deceased, no presumption of dowry death u/S 113B)of the Evidence Act can be drawn".
10. He further submitted that in the present case, no specific allegation of demand of dowry as well as torturing, has been levelled against the appellants and only general, omnibus and vague statements, on the point of cruelty and harassment as well as demand of dowry, has been made by the prosecution witnesses and, therefore, the appellants could not have been convicted for the offence punishable under Section-304(B) of the Indian Penal Code. To fortify his above-said contention, learned counsel for the appellants relied upon a decision reported in 2006(2) PLJR 69 (Bhudeo Choudhary @ Bhudeo Kumar Choudhary & Anr. Vs The State of Bihar) in which, it 8 has been held by a Bench of this court that:
"if the statements of the prosecution witnesses on the point of cruelty or harassment by husband or any in laws, soon before her death is of general nature and vague and, their statements do not find support and corroboration from any independent witnesses, it would not be proper to record a conviction u/S 304(B) of the Indian Penal Code".
11. Learned counsel for the appellants also relied upon a decision reported in 2006(3) PLJR SC 125 (T. Aruntperunjothi Vs The State through SHO, Pondicherry) in which, the Apex Court of this country has held that "to establish the offence u/S 304(B), it is necessary for the prosecution to establish that the deceased must have been subjected to cruelty or harassment by her husband or relatives of her husband, soon before her death and what would constitute „soon before her death‟ depends upon the facts and circumstances of each case and furthermore, in the aforesaid decision, the Apex Court has held that misunderstanding between the husband and the wife or a hypothesis cannot be made the basis for conviction."
12. He further submitted that in the present case, none of the prosecution witnesses deposed before the trial court that the deceased was subjected to cruelty or harassment in connection with her marriage, soon before her death and the prosecution relied upon Ext 2, which is a post card, said to be 9 written by the deceased to her parents but as a matter of fact, learned trial court failed to take notice of this fact that the deceased was an illiterate lady and Ext-2 was manufactured by the prosecution in course of investigation. He further submitted that P.W. 1 has nowhere stated in his written report that the deceased had written a letter to him prior to her death and similarly, when the statements of female members of P.W. 1 were recorded u/S 164 of the Cr.P.C. none of them stated that the deceased had written any letter and therefore, no reliance could have been placed upon Ext. 2 but learned trial court based his findings on the aforesaid Ext. 2.
13. He further submitted that, admittedly, the deceased committed suicide and she was not murdered by the appellants and, therefore, presumption of her murder by the appellants could not have been raised u/S 113B of the Evidence Act. On the basis of aforesaid arguments, learned counsel for appellants, prayed for setting aside the impugned judgment of conviction and order of sentence.
14. On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction, arguing that the prosecution, successfully, proved all the ingredients of Section-304(B) and, therefore, learned trial court 10 rightly, convicted the appellants for the above-said offence and, similarly, the prosecution also proved this fact that the deceased was harassed by the appellants and, therefore, there was sufficient material to prove the charge framed u/S 498A of the Indian Penal Code and, apart from this, the prosecution witnesses specifically, stated that the appellants used to make demand of dowry and, therefore, appellants were rightly, convicted for the offence punishable under Section-4 of Dowry Prohibition Act.
15. As I have already stated that altogether 7 prosecution witnesses were examined before learned trial court, out of them; P.W. 1 Mehi Lal is the informant and father of the deceased, P.W. 2 Suryadeo Prasad is maternal uncle of deceased. P.W. 3 is brother of deceased. P.W. 4 Deo Rani Devi is mother of the deceased. P.W. 5 Chandeshwar Prasad had written the written report (Ext 3) at the dictation of P.W. 1 and, also a witness of seizure. This witness is cousin brother of the deceased. P.W. 6 Rajeshwar Prasad has been declared hostile by the prosecution. P.W. 7 is a formal witness who proved paragraphs-1 to 112 of the case diary.
16. Admittedly, in order to attract Section-304(B) of the Indian Penal Code, the prosecution must establish all the 11 ingredients of Section-304B of the Indian Penal Code and if prosecution fails to prove, even one of the ingredients of Section-304(B) of the Indian Penal Code, the conviction u/S 304(B) of the Indian Penal Code, cannot be recorded. Therefore, prosecution is duty bound to prove following ingredients of Section-304(B) of the Indian Penal Code to seek conviction under the aforesaid Section:-
(i)The death of a woman should be caused by burn or bodily injury or otherwise other than under normal circumstances;
(ii) Such death should have been occurred within 7 years of her marriage;
(iii) The deceased must have been subjected to cruelty or harassment by her husband or any relation of her husband and;
(iv) Such cruelty or harassment should be for or in connection with demand for dowry.
17. If prosecution succeeds to prove all the above-said ingredients and also it is shown that soon before her death, the woman has been subjected to cruelty or harassment for or in connection with any demand for dowry; the court shall presume dowry death of the aforesaid woman.
18. Now, it has to be seen as to whether the prosecution has succeeded to prove all the ingredients of Section-304(B) of the Indian Penal Code or not.
19. P.W. 1 has stated in his written report that the 12 marriage of his daughter was solemnized in the year, 1986 and in his deposition, he stated that the marriage of his daughter had taken place 7-8 years ago from the date of recording of his deposition. Admittedly, the deposition of this witness was recorded on 09-08-1994. So, according to this witness, the marriage of his daughter was solemnized in the year, 1986. P.W. 3, the brother of deceased stated that he attained his Hosh at the age of 10 years and after 10 years of his attaining the Hosh, the marriage of his sister was solemnized. P.W. 4 mother of the deceased stated that the marriage of deceased was solemnized 10-13 years ago and according to this witness, the marriage of deceased was solemnized in the year, 1982-84. D.W. 1 stated that marriage of the deceased had taken place 12 years ago from the date of recording his deposition. The deposition of this witness was recorded on 09-02-1994 and therefore, according to this witness, the marriage of deceased had taken place in the year, 1982. Admittedly, the appellant Chanardhan Yadav is husband of the deceased and this witness admitted in his statement recorded u/S 313 of the Cr.P.C. that his marriage was solemnized with the deceased in the year, 1984. On this point, P.W. 1 stated that he got information about the death of his daughter from P.W. 6 and the 13 aforesaid information was given to him on 26. P.W. 1 further stated that having got the aforesaid information, when he went to the house of appellant and asked about his daughter, the appellants disclosed that his daughter had already died. He further stated that Ram Babu and Suryadeo went towards railway track, where they found broken bangles and blood stained stone and after that, he lodged the case. P.W. 2 stated that he got information about the death of his niece in the evening of 27 and having got the aforesaid information on 28, he went to the village of in-laws of the deceased and came to know that the deceased was killed on 25th and her dead body was cremated near Dardha river. P.W. 3 has stated nothing on this point as to when his sister was killed but P.W. 4 stated that her daughter was killed near about 2 years ago, on the day of Diwali. The statement of this witness was recorded on 22-08- 1994 and according to this witness; the deceased was killed sometime in the year, 1992. P.W. 5 admitted that blood stained stone, bangles, hair of scalp and some pieces of bones were recovered by police from railway track in his presence and the seizure list was prepared before him. Ext 4 is the seizure list and the said seizure list, was prepared on 28-10-1992. P.W. 5 also did not state that when the deceased died. P.W. 6 has 14 admitted that the deceased had committed suicide but he has not disclosed when the deceased committed suicide. D.W. 1 is also an important witness on this point and this witness at paragraph-8 of his examination-in-chief stated that one Laxman informed him that the deceased committed suicide by throwing herself before a running train. The aforesaid information was given to him by above-said Laxman on the day of Diwali and having got the aforesaid information, he went near the railway line to see the dead body of the deceased. Therefore, it is an admitted position that the deceased died in the month of October, 1992 and it was the day of Deepavali festival, when she died.
20. No doubt, there is some variation in the deposition of prosecution witnesses on the point of marriage of year of the deceased but admittedly, when the statement of P.W. 3 was recorded, he was aged about 20 years and according to this witness, he attained his Hosh at the age of 10 years and after 10 years of his attaining the Hosh, the marriage of the deceased was solemnized in the year, 1994, which is absurd because it is an admitted case of the parties that the deceased died in the year, 1992 and, therefore, the deposition of this witness on the aforesaid point, is not reliable. So far as P.W. 4 15 is concerned, she stated that marriage of the deceased was solemnized in the year, 1982-84. Admittedly, this witness is an illiterate lady and she put her thumb impression on her deposition and, therefore, it is not expected from an illiterate and rustic lady to count the years of marriage of the deceased.
21. The learned trial court has dealt with the aforesaid point at paragraph-10 of the impugned judgment and relied upon the statement of P.W. 1 whereas; discarded the deposition of D.W. 1 on the aforesaid point, giving plausible reasoning and I do not find any ground to disturb the aforesaid reasoning of learned trial court and, therefore, in my view also, the prosecution successfully, proved this fact that the marriage of deceased was solemnized in the year, 1986 and she died within 7 years of her marriage.
22. It is an admitted position that the death of deceased was unnatural and, furthermore, it has been established by the evidences, available on the record that the deceased committed suicide by throwing herself before a running train but even if, the deceased committed suicide, then also, the death of deceased comes under the ambit of other than natural circumstances and, therefore, the prosecution has succeeded to prove this fact that the death of deceased was other than 16 normal circumstances.
23. P.W. 1, P.W. 3 & P.W. 4 categorically, stated in their deposition that appellants were demanding dowry and on account of non-fulfillment of above-said dowry demand, they used to torture the deceased.
24. No doubt, there are some variations in the deposition of aforesaid prosecution witnesses on the point of amount of aforesaid demand but the aforesaid minor contradiction does not go to the route of the case because it has been established by the deposition of aforesaid witnesses that there was demand of dowry by the appellants.
25. It has been argued on behalf of the appellants that there was nothing before the trial court to come to the conclusion that the deceased was subjected to cruelty and harassment, soon before her death but I am unable to accept the aforesaid contention because Ext. 2 postcard was written by the deceased on 22-09-1992 to P.W. 1 and in the aforesaid post card, it has been mentioned that the appellants were demanding Rs 15,000/- and used to torture her on account of non-fulfillment of aforesaid demand. Admittedly, the deceased died in the month of October, 1992 in other than, normal circumstances and, therefore, it is established from aforesaid 17 Ext. 2 that the deceased was subjected to cruelty and harassment on account of non-fulfillment of illegal dowry demand, soon before her death. Although learned counsel for the appellants challenged the genuineness of Ext 2, but he could not succeed to bring anything in my notice, on the basis of which, the genuineness of the aforesaid Ext. 2 could be doubted.
26. On the basis of aforesaid discussions, I come to the conclusion that the prosecution, successfully, proved all the ingredients of Sections-304(B), 498(A) of the Indian Penal Code and Section-4 of Dowry Prohibition Act and the learned trial court has rightly, convicted the appellants for the above- said offences and, furthermore, I am of the opinion that there is nothing before this court on the basis of which, this court could interfere into the findings of learned trial court. In the aforesaid circumstances, I have no option but to confirm the conviction of the appellants under the above said sections.
27. So far as order of sentence is concerned, it has been established that the deceased committed suicide by throwing herself before a running train and, furthermore, admittedly, appellant No. 1 is husband, appellant No. 2 is brother-in-law, appellant No. 3 is mother-in-law and appellant 18 No. 4 is father-in-law of the deceased and at the time of pronouncement of impugned judgment, the appellant No. 1 was aged about 22 years, appellant No. 2 was aged about 20 years, appellant No. 3 was aged about 40 years and appellant No. 4 was aged about 45 years and, therefore, it is apparent that appellant No. 4 has already become more than 60 years and so far as appellant No. 3 is concerned, she is approaching to 60 years. Furthermore, appellant No. 2 was only 17 years of age at the time of alleged occurrence and therefore, considering the aforesaid facts and circumstances, I think it proper to reduce the sentences of the appellants and accordingly, I am of the opinion that the end of justice will meet, if, the sentence of each of the appellants is reduced up to 7 years, instead of awarding sentence to them up to 10 years for the offence punishable u/S 304(B) of the Indian Penal Code and, accordingly, all the appellants are sentenced to undergo rigorous imprisonment for the period of 7 years u/S 304(B) of the Indian Penal Code instead of, to undergo rigorous imprisonment of 10 years for the above-said offences. Furthermore, I would like to add that the period already undergone by the appellants, in course of trial as well as during pendency of this Cr. Appeal, shall be set off to their sentences awarded to them and all the sentences shall 19 run concurrently.
28. On the basis of aforesaid discussions, this Cr. Appeal stands dismissed with the modification in sentence order in the manner as stated above.
Patna High Court (Hemant Kumar Srivastava, J) Dated/ the 18th day of July, 2013 A.K.V./-NAFR