Patna High Court
Ram Keshwar Yadav vs State Of Bihar on 29 November, 2021
Author: A. M. Badar
Bench: A. M. Badar, Sunil Kumar Panwar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.56 of 1995
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RAM KESHWAR YADAV, son of Bhikhar Yadav, resident of village
Nabinagar Road, P.S. Nabinagar, district Aurangabad ... Appellant
Versus
STATE OF BIHAR ... Respondent
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Appearance :
For the Appellant : Mr. Krishna Prasad Singh, Sr. Adv. with
M/s Meena Singh & Manindra Kishore Singh, Advs.
For the Respondent : Mr. Satya Narayan Prasad, APP
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CORAM: HONOURABLE MR. JUSTICE A. M. BADAR
and
HONOURABLE MR. JUSTICE SUNIL KUMAR PANWAR
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE A. M. BADAR)
Date : 29-11-2021
Appellant/accused no. 1 Ram Keshwar Yadav, by this
appeal is challenging the judgment and order dated 14.03.1995
passed by the learned Additional Sessions Judge, III, Aurangabad
in S. Tr. No. 20 of 1993/1 of 1995 thereby convicting him of the
offence punishable under Sections 304B and 201 of the Indian
Penal Code and sentencing him to suffer rigorous imprisonment for
life so also the rigorous imprisonment for a term of three years
respectively. Substantive sentences were directed to run
concurrently. Co-accused, Bhikhar Yadav, Naga Yadav and
Janeshwar Yadav were also sentenced appropriately by the
impugned judgment and order for offences punishable under
Sections 304B and 201 of the Indian Penal Code.
2. Facts in brief leading to the prosecution of the
appellant/accused no. 1 Ram Keshwar Yadav projected from the
police report can be summarized thus.
Patna High Court CR. APP (DB) No.56 of 1995 dt.29-11-2021
2/18
(a) Bhagmatia (since deceased) was daughter of P.W. 6
Baijnath Yadav who was serving as Leth Machine Operator in a
Coal Colliery. He was permanent resident of village Matihani in
Aurangabad district and was serving in West Muni Deal Colliery.
Appellant/accused no. 1 Ram Keshwar Yadav married Bhagmatia
(since deceased) prior to about five years of her death. According
to the prosecution case, appellant/accused no. 1 Ram Keshwar
Yadav and other co-accused who are his relatives were subjecting
Bhagmatia (since deceased) to cruelty for and on account of
demand of dowry. It is alleged by the prosecution that the accused
persons were demanding an amount of Rs.40,000/- from P.W. 6
Baijnath Yadav. They were also insisting him to take voluntary
retirement for enabling appellant/accused no. 1 Ram Keshwar
Yadav to get appointment on compassionate ground with the
concerned Coal Company. On account of this demand, accused
persons were subjecting Bhagmatia (since deceased) to cruelty and
harassment. She was at her parental house and on account of
request made by the accused no. 2 Bhikhar Yadav - father of
appellant/accused no. 1 Ram Keshwar Yadav due to function of
marriage of his daughter, Bhagmatia (since deceased) was reached
to her matrimonial house on 01.05.1992 by her maternal uncle.
(b) It is case of the prosecution that the incident in
question took place at matrimonial house of Bhagmatia (since
deceased) located at village Nabinagar Road in Aurangabad
district. Bhagmatia (since deceased) died unnatural death and on
Patna High Court CR. APP (DB) No.56 of 1995 dt.29-11-2021
3/18
03.05.1991, son of one Tapeshwar Sao came village Matihani and informed P.W. 4 Pancham Yadav - uncle of deceased Bhagmatia that Bhagmatia is killed by accused persons and her dead body is thrown in the well. At that time co-villagers such as P.W. 1 Ram Lakhan Singh, P.W. 2 Ram Naresh Singh and P.W. 3 Nizamuddin were present there. Along with persons from his village P.W. 4 Pancham Yadav went to village Nabinagar and took out the dead body of Bhagmatia from the funeral pyre. Fire came to be extinguished. Then P.W. 4 Pancham Yadav went to the Police Station Nabinagar. He lodged report and accordingly Crime No. 37 of 1992 came to be registered with Nabinagar Police Station for offences punishable under Sections 302, 304B and 201 read with 34 of the Indian Penal Code against the accused persons including the appellant herein.
(c) Routine investigation followed. The dead body was sent for autopsy. Statements of witnesses came to be recorded and on completion of the investigation, the accused persons were charge-sheeted.
(d) On committal, charge came to be framed and explained to accused persons. They pleaded not guilty and claimed trial.
(e) In order to bring home the guilt to the appellant/accused so also the other accused persons, the prosecution has examined in all eight witnesses. Defence of the Patna High Court CR. APP (DB) No.56 of 1995 dt.29-11-2021 4/18 accused persons as seen from the line of cross-examination of prosecution witness was that of total denial.
(f) Upon hearing the parties the learned trial Court was pleased to convict the appellant/accused as well as other accused persons and appellant/accused came to be sentenced as indicated in the opening paragraph of the judgment.
3. We heard Mr. Krishna Prasad Singh, the learned Senior Counsel with Mrs. Meena Singh, learned Advocate appearing for the appellant/accused. It is argued that evidence of the prosecution is sketchy and laconic. The offence as alleged against the accused persons is not made out from the evidence of the prosecution. According to the learned Senior Counsel for the appellant/accused, the prosecution has failed to prove the fact that Bhagmatia (since deceased) died natural death. Similarly it is also not proved that soon before her death she was subjected to cruelty and harassment of the accused persons for and on account of demand of dowry.
4. As against this according to the Prosecutor appearing for the State, evidence of P.W. 4 Pancham Yadav and P.W. 6 Baijnath Yadav is clear, cogent and consistent. They have spoken about cruelty to Bhagmatia on account of demand of dowry by accused persons. Their evidence is corroborated by other evidence adduced by the prosecution including that of P.W. 1 Ram Lakhan Singh, P.W. 2 Ram Naresh Singh and P.W. 3 Nizamuddin. According to the learned Additional Public Prosecutor evidence of Patna High Court CR. APP (DB) No.56 of 1995 dt.29-11-2021 5/18 the autopsy surgeon shows that Bhagmatia died natural death and that death was within seven years of her marriage.
5. We have carefully considered the statements so advanced and also perused the records and proceedings including oral as well as documentary evidence adduced by the prosecution.
6. Substantive charge against the appellant/accused as well as that against remaining accused persons is for the offence punishable under Section 304B of the Indian Penal Code which deal with dowry death. Section 304 B of the Indian Penal Code reads, thus, "Section 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 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."
This provision has application when 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 if it is shown Patna High Court CR. APP (DB) No.56 of 1995 dt.29-11-2021 6/18 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. In order to attract application of Section 304-B 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) She must have been subjected to cruelty or harassment by her husband or any relative of her husband.
(iii) such cruelty or harassment should be for or in connection with demand of dowry.
(iv) Such cruelty or harassment is shown to have been meted out to the woman soon before her death. Section 113-B of the Evidence Act is also relevant for the case at hand. Both Section 304-B IPC and Section 113-B of the Evidence Act were inserted as noted earlier by the Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths.
Section 113-B reads as follows:
"113-B. Presumption as to dowry death. --
When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation - For the purposes of this section, "Dowry death" shall have the same meaning as in Section 304-B of the Indian Penal Code.
Presumption under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials:
Patna High Court CR. APP (DB) No.56 of 1995 dt.29-11-2021 7/18 (1) The question before the court must be whether the accused has committed the dowry death of the woman. (This means that the presumption can be raised only if the accused is being tried for the offence under section 304-B IPC) (2) The woman was subjected to cruelty or harassment by her husband or his relatives. (3) Such cruelty or harassment was for, or in connection with any demand for dowry. (4) Such cruelty or harassment was soon before her death."
7. It is thus clear that one of the requirements for argument penal provision of Section 304 B of the Indian Penal Code is that cruelty or harassment to a married woman must be proved to have been committed soon before death of such married woman. By catena of judgments of this court as well as Apex Court, what amounts to cruelty as envisaged by Explanation to Section 498A of the Indian Penal Code is explained. Cruelty implies harsh and harmful conduct with certain intensity and persistence. It covers acts causing both physical and mental agony and torture or tyranny and harm as well as unending accusations and recrimination reflecting bitterness putting the victim thereof to intense miscarries. The conduct, in order to prove guilt, must be such as strongly stirring up the feeling in the mind of a married woman that life is now not worth living and she should die, being the only option left. In other words, provisions of Section 498A of the Indian Penal Code envisages intention to drawing or force a woman to commit suicide by un- abetted persistence and grave cruelty. A willful conduct of such a Patna High Court CR. APP (DB) No.56 of 1995 dt.29-11-2021 8/18 nature as is likely to propel or compel a married woman to commit suicide or to cause grave injury or danger to her life, limb or health is required to be established. In other words, matrimonial cruelty is included from the definition of legal cruelty. To put it in other words, ordinary petulance and discord or differences in domestic life does not amount to cruelty.
8. P.W. 4 Pancham Yadav is uncle whereas P.W. 6 Baijnath Yadav is the father of Bhagmatia. Their evidence shows that appellant/accused no. 1 Ram Keshwar Yadav married Bhagmatia (since deceased) five years prior to death of Bhagmatia (since deceased). The defence is not disputing the fact that Bhagmatia (since deceased) died on 2 or 3.05.1992. The factum of death of Bhagmatia (since deceased) is rather undisputed. In his statement under Section 313 of the Criminal Procedure Code, appellant/accused no. 1 Ram Keshwar Yadav who happens to be husband of the deceased has stated that one day prior to 03.05.1992 funeral of his wife was conducted. With this undisputed position let us examine whether it is proved by the prosecution that soon before her death, Bhagmatia was subjected to cruelty and harassment by appellant/accused no. 1 Ram Keshwar Yadav for or in connection with any demand of dowry. The term cruelty is defined by explanation to Section 498A of the Indian Penal Code. This explanation defining the term cruelty found in Section 498A of the ipt reads thus :
Patna High Court CR. APP (DB) No.56 of 1995 dt.29-11-2021 9/18 Explanation :-- For the purpose of this section, "cruelty" means -
(a) any willful conduct which is o such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman;
or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."
9. Keeping in mind this position of law now let us examine evidence of star witness of the prosecution viz P.W. 6 Baijnath Yadav - father of deceased Bhagmatia and father-in-law of appellant/accused. It is seen from the evidence that though he is permanent resident of village Matihani in district Aurangabad because of his employment with West Muni Deal Colliery he was residing at the place of his employment. However, he was in touch with his daughter Bhagmatia. It is in evidence of this witness that all accused persons used to demand an amount of Rs.40,000/- from him or in the alternative they were saying that he should seek voluntary retirement in order to enable appellant/accused no. 1 Ram Keshwar Yadav to secure job in the colliery. As per version of this witness, according to service rule, he can opt for retirement and can nominate any of his relative for employment in his place. Patna High Court CR. APP (DB) No.56 of 1995 dt.29-11-2021 10/18 P.W. 6 Baijnath Yadav stated that he had not paid any heed to the demand of accused persons.
10. P.W. 6 Baijnath Yadav further deposed that accused persons were beating Bhagmatia severely. This fact was used to be told by him by his daughter Bhagmatia (since deceased). He claimed that he was visiting house of accused persons each month and used to make all arrangements of expenses of his daughter Bhagmatia. He further stated that when Bhagmatia (since deceased) fell ill, he spent money on her medical treatment by taking her to town Dehri and Banaras City. As per version of this witness P.W. 6 Baijnath Yadav his daughter was staying at matrimonial house prior to the incident in question but as he received letter (Exhibit 3) from accused no. 2 Bhikhar Yadav - father-in-law of deceased Bhagmatia he sent his daughter Bhagmatia (since deceased) to her matrimonial house on 01.05.1992. Thereafter on 04.05.1992 his brother P.W. 4 Pancham Yadav informed him about death of Bhagmatia at her matrimonial house.
11. If this version of P.W. 6 Baijnath Yadav coming on record from his chief examination is considered then it is clear that he has stated his grievance in two parts. In first part P.W. 6 Baijnath Yadav has stated that accused persons were demanding an amount of Rs.40,000/- from him or in the alternative, they were insisting him to retire in order to get employment in the colliery to Patna High Court CR. APP (DB) No.56 of 1995 dt.29-11-2021 11/18 appellant/accused no. 1 Ram Keshwar Yadav. This is found in paragraph 4 of his deposition. This witness has not spoken that as he refused to oblige the accused persons, they were subjecting his daughter Bhagmatia (since deceased) to cruelty and harassment. In paragraph 5 of his deposition, P.W. 6 Baijnath Yadav has made an omnibus statement that accused persons were subjecting Bhagmatia (since deceased) to severe beating. However, he is not attributing this beating to refusal on his part to meet the demand of dowry. P.W. 6 Baijnath Yadav has not stated that so called beating to Bhagmatia (since deceased) was because of his refusal to give dowry to the accused persons. Thus, P.W. 6 Baijnath Yadav in his chief examination itself has not stated that cruelty and harassment of Bhagmatia (since deceased) was for or in connection with any demand of dowry.
12. Chief examination of P.W. 6 Baijnath Yadav shows that even prior to incident in question his daughter was at her parental house up to 01.05.1992. Evidence on record indicates death of his daughter on or about 2 or 3.05.1992. Evidence on record is conspicuously silent as to what was the treatment meted out to Bhagmatia (since deceased) by her in-laws after 01.05.1992. As per version of P.W. 6 Baijnath Yadav, Bhagmatia (since deceased) was reached to her matrimonial house on 01.05.1992 by his own son as well as brother-in-law. If the prosecution had adduced evidence of these witnesses then at least this Court would have Patna High Court CR. APP (DB) No.56 of 1995 dt.29-11-2021 12/18 inferred as to how Bhagmatia (since deceased) was received and treated by her in-laws on 01.05.1992. However, brother and maternal uncle of Bhagmatia who took her to her matrimonial house on 01.05.1992 are not examined by the prosecution in the instant case. This non-examination of Vishwanath Yadav (son of P.W. 1 Ram Lakhan Singh) and Kapildev (brother-in-law of P.W. 6 Baijnath Yadav) with whom Bhagmatia (since deceased) was sent to her matrimonial house cast a shadow of doubt on prosecution case.
13. As the material against accused persons is comming from the mouth of near and dear ones of the deceased, the Court is enjoined to scrutinize such evidence carefully and minutely in order to arrive at the right conclusion. Because of natural hostility between the parties, such exercise is important. P.W. 6 Baijnath Yadav has stated that on 01.05.1992 Bhagmatia (since deceased) was sent to her matrimonial house with Vishwanath Yadav and Kapildev as he had received request letter (Exhibit 3) from accused no. 2 Bhikhar Yadav and father-in-law of deceased Bhagmatia. P.W. 6 Baijnath Yadav has proved this letter dated 19.04.1992 sent by accused no. 2 Bhikhar Yadav. This letter is an evidence in the nature of antilitum motum so far as inter se relation between prosecution party and the accused party are concerned. Perusal of this letter Exhibit 3 of accused no. 2 Bhikhar Yadav shows that it is an earnest invitation to P.W. 6 Baijnath Yadav. Accused no. 2 Patna High Court CR. APP (DB) No.56 of 1995 dt.29-11-2021 13/18 Bhikhar Yadav by this letter has informed P.W. 6 Baijnath Yadav that Bhagmatia (since deceased) should be sent to her matrimonial house. Accused no. 2 Bhikhar Yadav has informed by this letter that marriage of his daughter is fixed. On 28.04.1992 there is 'tilak' ceremony, on 03.05.1992 there is 'madwa' and on 04.05.1992 'bidai' of his daughter is scheduled. With this accused no. 2 Bhikhar Yadav has requested P.W. 6 Baijnath Yadav to attend the marriage with his son. Further request in the letter is to send Bhagmatia (since deceased) for attending this marriage with an assurance that after 'bidai' ceremony of his daughter, Bhagmatia will be reached back. The tone and tenor of this letter nowhere indicates that marriage life of Bhagmatia was going through a rough whether or that both the parties were on hostile term.
14. Cross examination of P.W. 6 Baijnath Yadav shows that though he claimed to have convened a meeting of Panchayati, 6 or 7 months prior to death of Bhagmatia on account of ill treatment to Bhagmatia, he is not having any document in respect to such meeting. However, he claims that such documents was prepared by the Panchayati. Evidence of P.W. 6 Baijnath Yadav is not satisfactory as to why this material document is not forthcoming.
15. Though P.W. 6 Baijnath Yadav has stated that he was visiting the matrimonial house of his daughter Bhagmatia (since deceased) ones in every month to make arrangement of expenses of Bhagmatia, this witness had never seen any ill treatment of his Patna High Court CR. APP (DB) No.56 of 1995 dt.29-11-2021 14/18 daughter by accused persons. This of what is seen from the evidence of P.W. 6 Baijnath Yadav and for the above mentioned reasons his evidence is not sufficient to conclude that the appellant/accused no. 1 Ram Keshwar Yadav had subjected the deceased to cruelty and harassment soon before her death for or on account of demand of dowry.
16. Another witness on which prosecution is placing its reliance is P.W. 4 Pancham Yadav. He is uncle of deceased Bhagmatia and is working as mechanic at Aurangabad. It is he who heard from son of Tapeshwar that Bhagmatia was killed by accused persons. This witness lodged the first information report (Exhibit 1) on 04.05.1992. Perusal of this first information report, which can be said to be first version of the prosecution case makes it clear that first informant P.W. 4 Pancham Yadav has not alleged in his first information report that his deceased niece Bhagmatia was subjected to cruelty or harassment by appellant/accused no. 1 Ram Keshwar Yadav or other accused persons for or in connection with any demand of dowry. The first information report dated 04.05.1992 was lodged by P.W. 4 Pancham Yadav when after hearing about murder of Bhagmatia, he rushed to village Nabinagar Road with co-villagers and had took out dead body of Bhagmatia from the funeral pyre. In such agitated and aggravated mood, it was expected of an uncle to disclose ill treatment, if any, Patna High Court CR. APP (DB) No.56 of 1995 dt.29-11-2021 15/18 meted out to his niece by the accused persons. However, no such averments are there in the first information report.
17. Be that as it may, P.W. 4 Pancham Yadav has stated before the Court that accused persons were assaulting Bhagmatia. They were demanding of Rs.40,000/- and employment. They were asking P.W. 6 (Baijnath Yadav) to opt for retirement and to nominate appellant/accused no. 1 Ram Keshwar Yadav for employment. He stated that his niece Bhagmatia was telling about beating to her by her in-laws. P.W. 6 Baijnath Yadav has also spoken about stay of Bhagmatia to her parental relative and her joining the company of the accused persons on 01.05.1992 on account of marriage or her son-in-law. Cross examination of this witness shows that material portion of his evidence is coming on record by way of omissions. He has duly admitted that he has not disclosed to police that there was demand for retirement of his brother in order to enable appellant/accused no. 1 Ram Keshwar Yadav to join employment on his post. His cross examination further shows that he has never seen accused persons beating her niece. He admitted that he had not told police while recording his statement that his deceased niece was telling about her beating by her in-laws. Thus, if these improvements made by P.W. 4 Pancham Yadav are omitted from consideration then evidence of this witness also does not show that the deceased was subjected to cruelty and Patna High Court CR. APP (DB) No.56 of 1995 dt.29-11-2021 16/18 harassment by her husband and in-laws for or in connection with any demand of dowry.
18. The other set of evidence in this case is that of all co- villagers such as P.W. 1 Ram Lakhan Singh, P.W. 2 Ram Naresh Singh and P.W. 3 Nizamuddin. They have stated in their deposition that whenever Bhagmatia used to come to her parental house she used to tall that accused persons used to beat her, use to demand money and employment. However, this is improved version of these witnesses, made for the first time before the Court. P.W. 1 Ram Lakhan Singh has candidly accepted this fact in his cross-examination. Similar is the deposition of evidence in respect to P.W. 2 Ram Naresh Singh. P.W. 3 Nizamuddin has accepted the fact that he was working at Aurangabad and he is not aware about the happenings in the house of P.W. 4 Pancham Yadav. All these co-villagers have not even spoken about nature of their relations with either P.W. 4 Pancham Yadav or P.W. 6 Baijnath Yadav, so as to get them an opportunity to know about the happenings in the matrimonial life of Bhagmatia. Therefore, it is not possible to place explicit reliance on improved version of these witnesses.
19. If we peruse evidence of P.W. 5 Dr. Chandrashekhar Prasad who conducted autopsy on dead body of Bhagmatia on 03.05.1992 then it is clear that this autopsy surgeon was not even in a position to state exact cause of death of Bhagmatia. At one blush he deposed that Bhagmatia died due to cardio respiratory Patna High Court CR. APP (DB) No.56 of 1995 dt.29-11-2021 17/18 failure due to asphyxia caused by drowning. However, in another blush he deposed that he is not in a position o say whether the drowning was antemortem or post mortem. Dead body of Bhagmatia was recovered from the funeral pyre. It was for the prosecution to establish the fact that Bhagmatia died because of drowning or bodily injury or otherwise then under normal circumstances. Even if it is assumed that Bhagmatia died because of asphyxia caused by drowning then also from evidence of investigating officer P.W. 8 Tej Narayan Singh it is seen that, though tried to trace out the well where the occurrence might have happened, he could not find such well. This witness had seen one well on south-west corner of house of one Ram Bikas Sao but that well was completely covered by the iron grill leaving only a place for putting in one bucket. Thus evidence of the prosecution on the aspect of unnatural death of Bhagmatia is also scanty and sketchy.
20. The net result of foregoing discussion requires us to hold that neither the prosecution has proved the offence punishable under Sections 304 B of the Indian Penal Code nor that of the one punishable under Section 201 thereof. Resultantly the appellant/accused is entitled to acquittal. As such the order :
The appeal is allowed. The impugned judgment and order 14.03.1995 passed by the learned Additional Sessions Judge, III, Aurangabad thereby convicting the appellant/accused punishable under Sections 304B and 201 of the Indian Penal Code in S. Tr.
Patna High Court CR. APP (DB) No.56 of 1995 dt.29-11-2021 18/18 No. 20 of 1993/1 of 1995 is quashed and set aside. Appellant/accused no. 1 Ram Keshwar Yadav is acquitted of all offences alleged against him. His bail bond(s) stand cancelled.
(A. M. Badar, J) ( Sunil Kumar Panwar, J) Shamshad/-
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