Patna High Court
Manoj Yadav @ Manoj Kumar Yadav & Anr vs The State Of Bihar on 31 March, 2014
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.85 of 2012
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1. Manoj Yadav @ Manoj Kumar Yadav, S/O Chunni Lal Yadav,
2. Chunni Lal Yadav, S/O Late Sadar Yadav, Both Residents Of Village-
Bhangaha, Police Station- Falka, District- Katihar
.... .... Appellant/s
Versus
1. The State Of Bihar
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Narendra Kumar Mishra, Adv.
For the Respondent/s : Mr. S.N.P. Singha, APP
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 31-03-2014
Appellants, Manoj Yadav @ Manoj Kumar Yadav
and Chunni Lal Yadav who have conjointly been held guilty for an
offence punishable under Sections 304B and 201 of the IPC and
independently been directed to undergo RI for 10 years as well as
slapped with fine appertaining to Rs.2000/- and in default thereof to
undergo RI for one year under Section 304B of the IPC, RI for three
years as well as fined of Rs. 500/- in default thereof to undergo SI for
three months with a further direction to run the sentences concurrently
vide judgment of conviction dated 11.01.2012 and order of sentence
dated 12.01.2012 passed by Additional Sessions Judge-FTC-1st,
Katihar in Sessions Trial No. 85/2010, have preferred the instant
appeal.
2. PW-13, Kedar Yadav had got his Fard-e-beyan
Patna High Court CR. APP (SJ) No.85 of 2012 dt.31-03-2014 2
recorded on 16.05.2009 at about 8:45 a.m. in the banana field of
Chunni Lal Yadav disclosing therein that his daughter, Mamta
Kumari (deceased) was married with Manoj Yadav @ Manoj Kumar
Yadav son of Chunni Lal Yadav of Village- Bhangha, P.S. Falka,
Distt-Katihar about three years ago. Just in the month of February
2009, Gauna was effected. At the time of Gauna, his son-in-law
Manoj Yadav had demanded a motorcycle and a golden ring in lieu of
dowry. He had shown his inability to provide the same. Even then, his
son-in-law and Samdhi, Chunni Lal Yadav were repeatedly
demanding the same with a threatening that in case, the same is not
fulfilled, they will oust his daughter. His daughter Mamta Kumari also
used to inform him and had further disclosed that with regard thereto,
she was being badly tortured at the hands of accused persons. On
15.05.2009, an unknown person had telephonically informed him regarding murder of his daughter by her Sasuralwala as well as with regard to concealment of her dead body. After getting this information, he immediately rushed and after arrival at Bhangha, he inquired from Chunni Lal Yadav with regard to the whereabouts of his daughter over which his Samdhi said that his daughter had already left the place. Being not satisfied therewith, he began to inquire and during course thereof, he had seen a ditch in the banana field of Chunni Lal Yadav from which a foul smell was coming out and on Patna High Court CR. APP (SJ) No.85 of 2012 dt.31-03-2014 3 account thereof, went there, removed the soil and then found a dead body kept inside a bag. The bag was taken out and then he identified the dead body to be that of his daughter, Mamta Kumari. On hue and cry, so many persons arrived. Police was informed and after arrival of the police, he had given his Fard-e-beyan at the spot itself.
3. On the basis of aforesaid Fard-e-beyan, Falka(Pothia) P.S. Case No. 83/2009 was registered under Sections 302, 201/34 of the IPC whereupon an investigation commenced and after concluding the same, charge sheet was submitted under Sections 302, 304B, 201/34 of the IPC against three out of whom Suminiya Devi is found acquitted vide the judgment impugned while appellant, Manoj Yadav and Chunni Lal Yadav have been convicted whereupon instant appeal has been preferred.
4. The defence case, as is evident from mode of cross-examination as well as from statement recorded under Section 313 of the Cr.P.C. is of complete of denial of occurrence. It has been asserted on behalf of the appellants that Mamta Kumari escaped from her Sasural and for that also examined DW.
5. It has been submitted on behalf of the appellant that the learned trial court had acted in a mechanical manner without appreciating the fact that prosecution could not be able to substantiate its case. To suggest the same, It has been submitted that death still Patna High Court CR. APP (SJ) No.85 of 2012 dt.31-03-2014 4 shrouds under mystery because of the fact that as per evidence of doctor PW-10 the body was completely decomposed and so the prosecution should have been over thrown due to non identification of dead body whether it happens to be that of Mamta Kumari and, in likewise manner, it has also been submitted that doctor PW-10 had not opined with regard to cause of death and on account thereof, preserved the viscera and handed it over to the Investigating Officer for FSL examination but the report is not on the record. Hence, it could not be said that death of deceased was unnatural.
6. It has also been submitted that the Investigating Officer has not been examined. Due to non examination of Investigating Officer, the inquest report has not been brought on record which could have divulged the physical condition of the dead body. In likewise manner, the controversy with regard to place of occurrence because of the fact that the father of so-called deceased had stated the P.O. to be banana field of Chunni Lal Yadav, however, is found not conclusively ascertained and established. Therefore, non examination of Investigating Officer has caused prejudice to the appellants.
7. It has further been submitted that there happens to be complete absence of evidence available on the record with regard to torture meted out to the so called deceased, Mamta Kumari soon Patna High Court CR. APP (SJ) No.85 of 2012 dt.31-03-2014 5 before her death relating to demand of dowry. Therefore, the prosecution utterly failed to satisfy the ingredient of 304B of the IPC. As such, the conviction and sentence under the guise of Section 113(B) of the Evidence Act is not at all found sustainable in the eye of law.
8. On the other hand, learned APP while supporting the judgment of conviction and sentence recorded by learned trial court has submitted that there happens to be no controversy with regard to identification of dead body in the background of evidence of PW-6, a co-villager of appellants as well as PW-7, maternal uncle of appellant, Manoj Yadav. Apart from consistent version of PW-11, Mahesh Yadav, PW-12, Pintoo Yadav, PW-13, Kedar Yadav (informant) without having any sort of embellishment in their evidence. It has also been submitted that P.O. is not under controversy in the background of evidence of PWs- 6 and 7. Furthermore, with regard to demand of dowry and torture meted out therefor, have already been deposed by the witnesses and on account thereof, the conviction and sentence recorded by the learned lower court happens to be just and legal.
9. In order to substantiate its case, the prosecution has examined altogether 13 PWs out of whom PW-1, Ganga Prasad Yadav, PW-2, Laxmi Yadav, PW-3, Brahmdeo Pd. Yadav, PW-4, Patna High Court CR. APP (SJ) No.85 of 2012 dt.31-03-2014 6 Sanjay Kumar Patel, PW-5, Uma Nath Patel, PW-6, Awadhesh Yadav, PW-7, Panch Lal Yadav, PW-8, Prakash Yadav, PW-9, Sekhar Yadav, PW-10, Dr. Upendra Pd. Chaudhary, PW-11, Mahesh Yadav, PW-12, Pintoo Yadav and PW-13, Kedar Yadav. Side by side, the prosecution has also exhibited as Ext-1, formal First Information Report, Ext-2, postmortem report, Ext-3, signature of informant over Fard-e-beyan. The defence has also examined one DW-Babu Lal Yadav, however, could not produce any document.
10. Now coming to the nature of evidence, it is apparent that PWs- 1, 2, 3, 4, 5 and 8 are hostile because of the fact that they have not supported the prosecution case in any manner. PW- 6, Awadhesh Yadav happens to be a hearsay witness, however, deposed on the factum of recovery of dead body from the banana field belonging to appellant, Chunni Lal Yadav while PW-7, Panch Lal Yadav, maternal uncle of appellant, Manoj Yadav, though he was declared hostile but while being confronted with his previous statement, he had admitted certain parts of the prosecution case. PW-9 is formal in nature on account of non examination of Investigating Officer while PW-10 is the doctor who conducted postmortem over the dead body of deceased. PWs-11, 12 and 13 are related to the deceased and on account thereof, have materially supported the case of the prosecution.
Patna High Court CR. APP (SJ) No.85 of 2012 dt.31-03-2014 7
11. Case falling under Section 304B of the IPC, from plain reading of Section itself it is evident that prosecution has been burdened to fulfill the ingredients so visualizing from the Section itself to attract application of Section-304B of the IPC. The first one happens to be the death must be otherwise than in the normal circumstance within seven years of marriage and before death there was demand of dowry and soon before her death, to facilitate the demand of dowry, she was tortured. The ambit and scope of Section-304B including the nature of death for consideration under Section 304B of the IPC has been properly considered and explained by the Hon‟ble Apex Court in the case of Suresh Kumar v. State of Haryana as reported in 2014 Crl.L.J. 551 under relevant paragraphs which are as follows:-
"26. The actual words used in Section 304B of the IPC are of importance. This section reads as under:-
"304-B. 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 purpose of this sub- section, "dowry" shall have the same meaning as in Section Patna High Court CR. APP (SJ) No.85 of 2012 dt.31-03-2014 8 2 of the Dowry Prohibition Act, 1961 (2* 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."
27. In a large number of decisions, this Court has indicated the ingredients of Section 304-B of the IPC, which are now broadly accepted. In Pawan Kumar v. State of Haryana, (1998) 3 SCC 309: (AIR 1998 SC 958: 1998 AIR SCW 721) the ingredients were identified as:
"(a) When the death of a woman is caused by any burns or bodily injury, or
(b) occurs otherwise than under normal circumstances
(c) and the aforesaid two facts spring within 7 years of girl‟s marriage
(d) and soon before her death, she was subjected to cruelty or harassment by her husband or his relative,
(e) this is in connection with the demand of dowry."
28. The ingredients of Section 304-B of the IPC were rephrased in Kans Raj v. State of Punjab, (2000) 5 SCC 207: (AIR 2000 SC 2324: 2000 AIR SCW 2093) in the following words:
(a) the death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances:
(b) Such death should have occurred
Patna High Court CR. APP (SJ) No.85 of 2012 dt.31-03-2014 9
within 7 years of her marriage:
(c) the deceased was subjected to cruelty
or harassment by her husband or by any relative of her husband;
(d) Such cruelty or harassment should be for or in connection with the demand of dowry; and
(e) To such cruelty or harassment the deceased should have been subjected soon before her death.
29. The expression "otherwise than under normal circumstances" was explained to mean "death not in the usual course but apparently under suspicious circumstances, if not caused by burns or bodily injury."
30. A somewhat recent exposition is to be found in Hira Lal v. State (Govt. of NCT). Delhi, (2003) 8 SCC 80: (AIR 2003 SC 2865: 2003 AIR SCW 3570) wherein this Court held that to attract the application of Section 304-B of the IPC, the essential ingredients are as follows:-
"(i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.
(ii) Such a death should have occurred within seven years of her marriage.
(iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband.
(iv) Such cruelty or harassment should be for or in connection with demand of dowry.
Patna High Court CR. APP (SJ) No.85 of 2012 dt.31-03-2014 10
(v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death."
31. More recently the ingredients of Section 304-B of the IPC have been abbreviated in Bakshish Ram v. State of Punjab, (2013) 4 SCC 131: (AIR 2013 SC 1484 :
2013 AIR SCW 1914) in the following words:
"(a) that a married woman had died otherwise than under normal circumstances;
(b) such death was within seven years of her marriage; and (C) the prosecution has established that there was cruelty and harassment in connection with demand for dowry soon before her death."
32. This „formula‟, though framed in different words by this Court, from time to time, conveys the same meaning of the essential ingredients of an offence punishable under Section 304-B of the IPC.
33. Importantly, Section 304-B of the IPC does not categorize death as homicidal or suicidal or accidental. This is because death caused by burns can, in a given case, be homicidal or suicidal or accidental. Similarly, death caused by bodily injury can, in a given case, be homicidal or suicidal or accidental. Finally, any death occurring "otherwise than under normal circumstances" can, in a given case, be homicidal or suicidal or accidental. Therefore, if all the other ingredients of Section 304-B of the IPC are fulfilled, any death (whether homicidal or suicidal or accidental) and whether caused by burns or by bodily injury or occurring otherwise than under normal Patna High Court CR. APP (SJ) No.85 of 2012 dt.31-03-2014 11 circumstances shall, as per the legislative mandate, be called a "dowry death" and the woman‟s husband or his relative "shall be deemed to have caused her death". The Section clearly specifies what constitutes the offence of a dowry death and also identifies the single offender or multiple offenders who has or have caused the dowry death.
12. It is also apparent from the aforesaid judgment Suresh Kumar v. State of Haryana (supra) that application of Section 113 (B) of the Evidence Act permitting presumption, however, rebuttable is applicable only in case the prosecution discharges its obligation in allegoric and legal manner whereupon the accused is found under obligation to discharge by way of rebutting the evidence followed with presumption in terms of Section-113 (B) of the Evidence Act. In case, the rebuttal is not properly discharged, then in that event, the presumption will go against him and in the aforesaid background he will have to face the ultimate consequence.
13. Now coming to the facts of the case, as stated above, save and except PWs-6, 7, 11, 12 and 13 other had gone volte face. Therefore, the evidence of remaining witnesses are not at all referred to.
14. PW-10, Dr. Upendra Pd. Chaudhary had conducted postmortem on the dead body of deceased, Mamta Devi and found the following injuries:-
Patna High Court CR. APP (SJ) No.85 of 2012 dt.31-03-2014 12
1. Body decomposed. Loss of left ear‟s penne from aspect of face and nose disfigured. Peeling of skin whole body.
On dissection of head and neck .
(i) Brain and brain matter liquefied.
(ii) Neck matter level.
On dissection of chest.
(i) Both lungs intact in-vaulted in size. Bony cage of chest intact.
(ii) Heart intact and empty.
On dissection of abdomen.
1. Stomach empty. No specific smell. Other abdominal viscera under process of purification uterus intact and small in size and empty.
15. During cross-examination, he had admitted that the dead body was completely decomposed. Worms were found over the dead body. He had further stated that nose, ears as well as skin were completely peeled out. That means to say, from evidence of PW- 10, it is apparent that body was completely decomposed, however, the defence could not dare to cross-examine this witness directly whether the dead body was identifiable or not.
16. The aforesaid theme is to be looked into from the evidence of PW-6, Awadhesh Yadav, a co-villager of appellants who had deposed that the occurrence is about one year and three months ago. He is not remembering the time. At that very time, he was at his Patna High Court CR. APP (SJ) No.85 of 2012 dt.31-03-2014 13 field which is located at western Bahiyar of the village. He had acknowledged with the fact that on the same day the dead body was taken out from banana field. Police had come. Police did not interrogate him. The aforesaid banana field belongs to Chunni Lal Yadav. He further stated that he came to know that the dead body was of daughter-in-law of Chunni Lal Yadav. Had further disclosed that his house lies a half kilometer away from the house of Chunni Lal Yadav, he had identified all the three accused persons in dock. During cross-examination the defence had not tried to demolish the same save and except suggesting that he happens to be a hearsay witness. He further stated that he had not seen the occurrence. This witness was not at all cross-examined on the score that whatever he came to know was false, wrong. He was further not cross-examined over recovery of dead body as well as identification of dead body to be that of daughter-in-law of Chunni Lal Yadav. That means to say, the aforesaid event remained unchallenged, though, in hearsay manner.
17. PW-7 is Panch Lal Yadav. He had stated that the occurrence is about three years ago. He is not remembering the time. At the time of occurrence, he was at his Sasural. He further stated that he did not know with regard to the occurrence. Darogaji had not taken his statement and accordingly, was declared hostile. At para-2, he had denied the suggestion that he had made statement that Mamta Kumari, Patna High Court CR. APP (SJ) No.85 of 2012 dt.31-03-2014 14 deceased was married with his step sister‟s son, Manoj Yadav. However, he had stated that deceased used to reside at her Sasural. After recovery of dead body on the date of occurrence, then he came to know that deceased had died. He further denied the suggestion that it is false to say that Mamta Devi was ever tortured with regard to fulfilment of demand of dowry. During cross-examination, again this witness was treated in casual manner whereunder he had stated that he had deposed voluntarily. So, even having his status hostile to the prosecution, had accepted presence of deceased at her Sasural as well as recovery of dead body and on account of disclosing that she had already done to death. Thus, apart from evidence of PWs-11, 12 and 13 on this score as well as having evidence of PW-10, the doctor disclosing the body to have decomposed is found no way hurdle in identifying the dead body to be that of Mamta Devi in the background of evidence of PW-6 as well as 7. As such, the dead body of Mamta Devi remains out of controversy and in likewise manner happens to be the theme of death because of the fact that the dead body was recovered.
18. In the aforesaid background, the deficiency in the evidence of PW-10, the doctor whereunder, he failed to disclose the cause of death and further non receipt of viscera report is also of no consequence on account of recovery of dead body of Mamta Devi. Patna High Court CR. APP (SJ) No.85 of 2012 dt.31-03-2014 15 The other circumstance on this very aspect will be discussed hereinafter at the appropriate stage of the judgment.
19. Now remains the two other ingredients to be proved by the prosecution, that means to say, there was demand of dowry and further before death of deceased, she was tortured to facilitate the same.
20. With regard to demand of dowry followed with torture, it is apparent from the Fard-e-beyan that Gauna was effected in the month of February 2009 at which stage Manoj Kumar Yadav had advanced the demand of a motorcycle and a golden ring. The FIR was registered in the month of May 2009. That means to say, the deceased only availed three golden months of her life at her Sasural in the company of her husband, appellant Manoj Yadav along with inlaws, appellant Chunni Lal Yadav and Suminiya Devi(since acquitted). The Fard-e-beyan also speaks with regard to persisting demand, threatening of ousting, in case, is not fulfilled, disclosure over phone by deceased regarding torture for fulfilment of the demand. And to test the aforesaid veracity the evidence of PW-13, the unfortunate father is to be looked into. During his examination-in- chief, at para-1 he had stated that at the time of Dur-a-gaman, Manoj had advanced demand of a motorcycle as well as a golden ring whereupon, he had shown his helplessness. However, from para-2 of Patna High Court CR. APP (SJ) No.85 of 2012 dt.31-03-2014 16 his examination-in-chief, he had detailed the manner whereunder the deceased was treated at her Sasural. The remaining part of his evidence is not on this score. At para-8, this witness was cross- examined on the score of demand whereunder he had stated that at the time of Dur-a-gaman of his daughter, the accused persons had advanced the demand. Again he had stated that after 10-15 days of Dur-a-gaman there was insistence. He had further stated that his daughter stayed at her Sasural only for 2 ½ -3 months. He had fairly stated that he is unable to say as to who had murdered and how. He had not seen the occurrence. He was suggested that his daughter used to flee and during course thereof, she was murdered. That means to say, by such suggestion the defence had admitted death of deceased and being so, again the identification of dead body no more remains under controversy. Apart from this, PW-13 has not been cross- examined over the torture which he had detailed under para-2 of his examination-in-chief.
21. PW-11, Mahesh Yadav at para-3 of his examination-in-chief had stated that Chunni Lal Yadav and Manoj Yadav had demanded motor-cycle in lieu of dowry. Suminiya Devi had also reiterated the demand. He happens to be maternal uncle of PW-13. In para-8 of his cross-examination, he had stated that there was no dispute persisting amongst deceased with her husband. He was Patna High Court CR. APP (SJ) No.85 of 2012 dt.31-03-2014 17 also suggested that the deceased was done to death by her Maikawala and the accused persons were falsely implicated. So, from his evidence, it is evident that he had not stated on the point of torture being meted out soon before the death of deceased for fulfilment of demand of dowry.
22. PW-12 is Pintoo Yadav, uncle of deceased Mamta Devi. He had stated that Mamta came to her Sasural on Dur- a-gaman which effected three years before the occurrence. Mamta had telephonically informed that Manoj Yadav, Chunni Lal Yadav and mother of Manoj were demanding one motorcycle and a golden ring. His brother Kedar Yadav had shown his helplessness. However, stated that in due course of time, it will be fulfilled. During cross- examination, at para-6 he had stated that he is unable to disclose the date, day on which there was demand of ring as well as motorcycle. He is unable to disclose the phone number. He is unable to disclose the number of phone on which call of Mamta was received. In para-9, he had stated that there was no dispute in between his niece along with accused persons. There was no Panchayati. He was further suggested that they have had themselves committed murder of deceased and got the accused implicated. From his evidence, it is apparent that he had not disclosed regarding torture meted out to deceased soon before her death.
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23. From the record, it transpires that Chunni Lal Yadav, Suminiya Devi and Manoj Yadav were alternatively charged for an offence punishable under Sections 302/34, 304B/34 and 201 of the IPC. From impugned judgment, it is evident that the learned lower court had not given any cogent reason while the charge under Sections 302/34 of the IPC was disbelieved. More particularly, after going through para-23 of the judgment impugned, it is evident that the learned lower court though, swept towards Section 304B of the IPC and for that also took aid of Section 113 of the Evidence Act but failed to acknowledge the deficiency persisting amongst the evidence of PWs as stated above. The reason is the life and soul of a judgment. Any finding must be supported with the reason. Because of the fact that the judgment impugned lacks reasoning, this Court could not feel justified to concur with the same. On the other hand, the learned lower court should have considered that the murder of deceased was committed while staying at her Sasural and dead body was recovered having buried in the banana field behind the house belonging to accused and for that accused was to explain in terms of Section 106 of the Evidence Act, wherein they failed.
24. Consequent thereupon, the judgment impugned is set aside. The appeal is allowed. The matter is remitted to the learned trial court with a direction to proceed afresh and after hearing Patna High Court CR. APP (SJ) No.85 of 2012 dt.31-03-2014 19 the arguments raised on behalf of respective parties, shall pass the judgment in accordance with law.
(Aditya Kumar Trivedi, J) Patna High Court 31st day of March 2014 Perwez/AFR __ |__| U |__| T