Patna High Court
Hareram Sah vs The State Of Bihar on 11 May, 2018
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.552 of 2015
Arising Out of PS.Case No. -144 Year- 2013 Thana -THAWE District- GOPALGANJ
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Hareram Sah Son of Late Ramanand Sah Resident of Village - Gawandari, P.S.
Thawe, District - Gopalganj.
.... .... Appellant/s
Versus
The State of Bihar.
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Ranjan Kumar Jha,
Chandan Kumar Kashyap
Dharamveer, Advocates
For the Respondent/s : Mr. Sujit Kumar Singh
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 11-05-2018
Appellant, Hareram Sah has been found guilty for an
offence punishable under Section 498A/34 of the I.P.C, 306/34 of the
I.P.C vide judgment of conviction dated 25.07.2015 and sentenced to
undergo R.I for 2 years as well as to pay fine appertaining to Rs.
1,000/- in default thereof to undergo S.I for one month, under Section
498A I.P.C, and sentenced to undergo R.I of 7 years as well as to pay
fine appertaining to Rs. 2,000/- and in default thereof to undergo S.I
for one month, under Section 306/34 I.P.C with a further direction to
run the sentences concurrently vide order of sentence dated
31.07.2015passed by Additional Sessions Judge, 5th, Gopalganj in Sessions Trial No. 364/2014.
2. Deceased, Babita Devi, while was admitted at Sadar hospital, Gopalganj for her treatment on account of burn injury, gave Patna High Court CR. APP (SJ) No.552 of 2015 dt.11-05-2018 2 her fard-beyan on 11.11.2013 at about 11 A.M alleging inter alia that her marriage was solemnized with Hare Ram Sah, son of late Ram Chandra Sah of village- Gabandari, P.S- Thawe, Dist. Gopalganj and out of said wedlock, she has begotten a son who is aged about 5 years. On account of torture frequently exerted against her by her husband Hare Ram Sah, mother-in-law Rambati Devi and sister-in-law Devanti Devi and as they were not inclined to allow her to stay on that score, as a result of which, for the last 4 years, she was staying at her Naihar. About four months ago, she came from her Naihar to sasural and began to stay during course of which, her husband, mother-in-law and sister-in-law physically assaulted her and began to coerce her to leave. On 10.11.2013 at about 8 P.M, her husband Hare Ram Sah, mother-in-law Rambati Devi and sister-in-law Devanti Devi after assaulting her, forced her to leave the place whereupon she, lastly poured k-oil upon her and then lit fire as a result of which, she became badly burnt. Then thereafter, she has been shifted to the Thawe hospital by the villagers and from there referred to Gopalganj where she is being treated. The aforesaid fard-beyan was recorded in presence of medical officer, Gopalganj who endorsed the same. As is evident from the record, after registration of Thawe P.S. Case No. 144/2013 deceased died and in the aforesaid background, after recording statement of witnesses, procuring the post mortem report Patna High Court CR. APP (SJ) No.552 of 2015 dt.11-05-2018 3 and finding the allegation true, the charge sheet was submitted facilitating the trial meeting with the ultimate result, subject matter of instant appeal.
3. Defence case as is evident from mode of cross-
examination as well as statement recorded under Section 313 Cr.P.C is that of complete denial.
4. Furthermore, it has been pleaded that during course of cooking, the deceased caught hold of fire from the furnace accidentally, on account thereof, sustained burn injuries whereupon shifted to the hospital where during course of treatment she died. However, neither oral nor documentary evidence has been adduced.
5. In order to substantiate its case, prosecution had examined altogether six PWs out of PW-1, Ram Chandra Sah, PW-2, Parmatma Sah, PW-3, Krishna Sah, PW-4, Ramashray Sah, PW-5, Rajan Sah and PW-6, Mahendra Kumar. Side by side had also exhibited, Ext.1, fard-beyan. As stated above, nothing has been adduced on behalf of defence.
6. Learned counsel for the appellant vehemently submitted that the finding recorded by the learned lower court happens to be based upon conjecture and surmises whereupon is fit to be set aside. Furthermore, it has also been submitted that learned lower court had not considered the factual aspect as well as the legal Patna High Court CR. APP (SJ) No.552 of 2015 dt.11-05-2018 4 aspect involved in this case in its right perspective. To substantiate the same, it has been submitted that doctor has not been examined, on account thereof, post mortem has not come up on record. I.O has not been examined on account thereof, the objective finding relating to the place of occurrence also happens to be away from the record. In the background of the aforesaid legal deficiency when the evidences of the witnesses are gone through, it is evident that save and except PW-6, all the witnesses have not substantiated the case of the prosecution. Now coming to the evidence of PW-6, it has been submitted that his evidence also lacks credibility in the background of the fact that he was the police official of Thawe Police Station while the deceased was admitted at Sadar hospital, Gopalgaj where police officials were being deputed for recording fard-beyan of the injured. Ignoring the same and having presence of PW-6 is a circumstance which casts doubt over credibility of PW-6. Furthermore, it has also been submitted that the doctor whose signature happens to be over the fard-beyan, has not been examined in order to explain that at the time of recording of the statements of deceased, she was in a fit mental condition. Furthermore, from perusal of the aforesaid statement (Ext.1), it is apparent that deceased herself disclosed that she was taken to Thawe hospital and from there she was taken to Sadar hospital. Admittedly, neither her Naiharwala was there nor any Patna High Court CR. APP (SJ) No.552 of 2015 dt.11-05-2018 5 villager came forward to say that he had lifted the injured /deceased to Thawe hospital and then to Sadar hospital so, it was the appellant who lifted her to Thawe hospital and then to Sadar hospital and further was taken all necessary steps in getting the victim properly treated in order to save her life but unfortunately, she died. In the aforesaid facts and circumstances of the case, it could not be said that on account of any illegal activity detrimental to the interest of the deceased was adopted at the end of appellant whereupon she committed suicide.
7. It has also been submitted that from the fard-beyan, it is apparent that deceased had categorically stated that her marriage was solemnized about 10 years ago. In the aforesaid background, the presumption in terms of Section 113A of the evidence act could not be available. Furthermore, in order to buttress his plea, learned counsel for the appellant has relied upon Ramesh Kumar Vs. State of Chattisgarh reported in (2001) 9 SCC 611.
8. Before coming to legal aspect, first of all factual aspect is to be seen. PW-2 is the co-villagers of the appellant. He had stated that marriage was solemnized about 7-8 years ago. Deceased had begotten a child who is about 6 years of age. While Babita Devi, the deceased was cooking, she caught fire, as a result of which, she died. She was treated at Gopalganj Sadar hospital and she died during course of treatment. Her husband or anybody else relating to her Patna High Court CR. APP (SJ) No.552 of 2015 dt.11-05-2018 6 husband never demanded the dowry. During cross-examination, he had stated that deceased Babita Devi or her father or any family member had not complained against the accused persons. He had also stated that she was being kept in a congenial, harmonious atmosphere. She was never tortured.
9. PW-3 had shown ignorance with regard to incident whereupon, he was declared hostile and that happens to be the status of PW-4 as well as PW-5.
10. PW-1 is the father of the victim/deceased. He had stated that deceased Babita Devi was his daughter. She was married with Hare Ram Sah about 9-10 years ago. She had begotten a child who is aged about 6-7 years. He received an information that during course of cooking, his daughter got burnt and her treatment is going on at Sadar hospital, Gopalganj whereupon, he had gone to Gopalganj hospital and had seen her husband as well as her sasuralwala engaged in providing treatment. During course of treatment, she died. He had further stated that his son-in-law never tortured her nor ever demanded dowry whereupon, he was declared hostile and then his attention was drawn towards his previous statement. During cross- examination, he had stated that neither his son-in-law nor his family members ever demanded dowry from his daughter. His daughter had not complained against her sasuralwala. His daughter never Patna High Court CR. APP (SJ) No.552 of 2015 dt.11-05-2018 7 complained that she was being tortured at the end of her husband or her family members over demand of dowry. None of the accused persons had tortured her. This happens to be first set of evidence.
11. The second set of evidence is of PW-6, who had recorded the fard-beyan of the deceased.
12. He had stated that on 11.11.2013, he was officer- in-charge of Thawe police station, he received information from Sadar hospital, Gopalganj that one lady of Thawe police station is badly burnt over which he came to sadar hospital, Gopalganj, inquired, the name of the victim to be Babita Devi. She was conscious. He recorded fard-beyan of Babita Devi and read over to Babita Devi who put her thumb impression, then exhibited the same. During cross- examination at Para 2, he had stated that he received information from Sadar hospital, Gopalganj at about 10 A.M. He proceeded therefrom immediately. He had recorded the same in the station diary. In Para- 3, he had stated that police officials were available in the Sadar hospital for taking statement. Only for the purpose of taking statement police officials have been deputed. At Para-4, he had stated that signature/LT.I of any of the family members of Babita Devi is not available on the statement. In Para-5, he had denied the suggestion that he had deposed falsely.
13. From the evidence of PW-1, father of the victim, it Patna High Court CR. APP (SJ) No.552 of 2015 dt.11-05-2018 8 is apparent that neither in his examination-in-chief nor during course of cross-examination, he had stated that on which date he came at the Sadar hospital. He had stated nor he was cross-examined on the score that when he came at Sadar hospital, victim was unconscious. Neither there happens to be examination-in-chief nor cross-examination that when he came Sadar hospital, had talked with deceased or not. That means to say, in spite of having status of PW-1, volte face to prosecution and on account thereof was declared hostile. The defence could not be able to extract from him with regard to physical, mental condition of the deceased. In likewise manner, he was not at all cross- examined whether in his presence police officials had come or not.
14. In the background of aforesaid materials, when the evidence of PW-6, the police officials who had recorded Ext.1, has been gone through, it is evident that during cross-examination, the defence had not challenged that the deceased was not in a sound mental condition to make statement. Defence could not cross-examine PW-6 at least to the extent that deceased/injured was unconscious and so, the Fard-e-beyan happens to be manufactured one. PW-6 was not at all cross-examined on the score that at very time sasuralwala of victim was present who was facilitating the treatment of the victim.
15. When PW-6 during course of his examination-in- chief had deposed that victim was conscious and that assertion has not Patna High Court CR. APP (SJ) No.552 of 2015 dt.11-05-2018 9 been challenged during course of cross-examination, then in that circumstance, the non-examination of the doctor whose presence is on the fard-beyan will not axe upon authenticity of Exhibit-1 fard-beyan. When the presence of Ext.1 is found reliable then in that circumstance, after the death of the deceased on account of burn injury regarding which the aforesaid fard-beyan depict involvement of the accused persons including the appellant as being abettor, is to be treated as a dying-declaration and that being so, rightly been observed by the learned lower court.
16. In Paras Yadav v. State of Bihar reported in AIR 1999 SC 644, it has been held as under:-
It has been contended by the learned Counsel for the appellants that the Investigating Officer has not bothered to record the dying declaration of the deceased nor the dying declaration is recorded by the Doctor. The Doctor is also not examined to establish that the deceased was conscious and in a fit condition to make the statement. It is true that there is negligence on the part of Investigating Officer. On occasions, such negligence or ommission may give rise to reasonable doubt which would obviously go in favour of the accused. But in the present case, the evidence of prosecution witnesses clearly establishes beyond reasonable doubt that the deceased was conscious and he was removed to the hospital by bus. All the witnesses deposed that the deceased was in a fit state of health to make the statements on the date of incident. He expired only after more than 24 hours. No justifiable reason is pointed out to disbelieve the evidence of number of witnesses who rushed to the scene of offence at Ghogha Chowk. Their evidence does not suffer from any infirmity which would render the dying declarations as doubtful or unworthy of the evidence. In such a situation, the lapse on the part of the Investigating Officer should not be taken in favour of the accused, may be that such lapse is Patna High Court CR. APP (SJ) No.552 of 2015 dt.11-05-2018 10 committed designedly or because of negligence. Hence, the prosecution evidence is required to be examined de hors such ommissions to find out whether the said evidence is reliable or not. For this purpose, it would be worthwhile to quote the following observations of this Court from the case of Ram Bihari Yadav v. State of Bihar and others, J.T. (1998) 3 SC 290.
"In such cases, the story of the prosecution will have to be examined de hors such omissions and contaminated conduct of the officials otherwise the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice."
17. Section 498A of the I.P.C is bifurcated in two parts. The first part is with regard to infliction of cruelty and the second part, for procurement of dowry. It is not that, in each and every case, the cruelty should be only on account of demand of dowry. For better appreciation under Section 498A of the IPC is coated below.
Section 498A in The Indian Penal Code.
[498A. Husband or relative of husband of a woman subjecting her to cruelty.--Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.--For the purpose of this section, "cruelty" means--
(a) any wilful conduct which is of 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.] Patna High Court CR. APP (SJ) No.552 of 2015 dt.11-05-2018 11
18. The frequent incident of atrocity upon the woman at the place of her sasural had given a sound plank to the legislature to introduce relevant provisions in order to seize the recurrence of such type of illegality whereunder apart from Section 498A of the I.P.C, 304B IPC has also been introduced and further in order to facilitate the court to presume against the accused persons, certain amendments have also been made in the Evidence Act and Section 113A of the Evidence Act happens to be one of them. The prime object behind such introduction is not to keep the sasuralwala's interest at jeopardize and so, a tenure has been fixed identifying to be seven years and that happens to be reason behind that in terms of Section 304B of the I.P.C, the aforesaid period of seven years has properly been identified and in the aforesaid background, the seven years period is also identified under Section 113A as well as 113B of the Evidence Act, but it happens to be confined only in a case which is based upon or relating to the dowry menace. In the present scenario, it is not the case relating to torture or abetment or over procurement of dowry. Deceased had not alleged that on account of demand of dowry, she was subjected to cruelty. What was the reason for which she was not allowed to stay at her sasural either happens to be within the knowledge of Naiharwala of the deceased or the deceased herself or her sasuralwala. Her sasuralwala kept themselves confined Patna High Court CR. APP (SJ) No.552 of 2015 dt.11-05-2018 12 irrespective of the fact that occurrence took place at his place. That being so, the rigor of time, as prescribed under Section 113 of the Evidence Act would not apply nor the presumption though rebuttable in terms of Section 113A of the Evidence Act will come into play. It happens to be simple case of abetment of suicide.
19. True it is that accused is not under obligation to explain. It is the prosecution who has to substantiate its case. Once the prosecution discharged the burden then in that circumstance, onus shifts upon the adversary, that means to say upon the accused. Dying declaration was there wherein certain allegations have been attributed against the accused by the victim, deceased and so, it was incumbent upon the accused to explain the same by way of challenging the legality, reliability of the dying declaration as well as disowning their status to be abettor. Acceptability of dying declaration is based upon the principle of " Nemo moriturus praesumitur mentire", a man will not meet his maker with a lie in his mouth. That onus as is evident has not been discharged at the end of the appellant.
20. The learned counsel for the petitioner has relied upon Ramesh Kumar Vs. State of Chattisgarh reported in (2001) 9 SCC 611. Instigation has been explained. For better appreciation, the relevant paragraph is quoted below:-
20. Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of Patna High Court CR. APP (SJ) No.552 of 2015 dt.11-05-2018 13 instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. ........
21. In State of West Bangal v. Orilal Jaiswal and Anr., [ 1994] 1 SCC 73, this Court has cautioned that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicde. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.
21. Deceased was married. She was married 9-10 years ago. From the dying declaration it is evident, that on one pretext or other, she was at her naihar for the last 4 years. About 4 months ago, she had gone to her sasural. As soon as she stepped down at her sasural, she began to face the horrifying situation. Lastly, on the fateful day at about 8 P.M., in the night she was coerced to go outside whereupon, she lit fire upon herself after sprinkling k-oil.
22. In Indian social cultural environment, the girl after marriage is expected to stay at her sasural. Her Naiharwala got relieved after marriage of the girl. Naiharwala feels relaxed and so the Patna High Court CR. APP (SJ) No.552 of 2015 dt.11-05-2018 14 girl had to stay irrespective of uncordial situation being faced by her at her Sasural and this happens to be reason behind commission of suicide when she was forced to face such situation at her Sasural.
23. Having not permitted to stay furthermore at her Sasural and in the night of winter season, having no ray of hope ultimately, lost her life. The present case depicts the situation which the girl has to face at her Sasural, if her presence is not allowed. After giving the anxious consideration to the facts and circumstances of the case, I do not see any cogent reason to interfere with the finding recorded by the learned lower court, that being so, instant appeal lacks merit and is accordingly, dismissed.
24. Appellant is on bail, hence his bail bond is hereby, cancelled directing him to surrender before learned lower court, within a fortnight to serve out remaining part of sentence, failing which, the learned lower court will be liberty to proceed against the appellant in accordance with law.
(Aditya Kumar Trivedi, J)
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AFR/NAFR AFR
CAV DATE N/A
Uploading Date 17.05.2018
Transmission 17.05.2018
Date